Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Fantakis v R [2023] NSWCCA 3 Hearing dates: 18, 19, 20 May 2022 Date of orders: 3 February 2023 Decision date: 03 February 2023 Before: Ward ACJ at [1]; Rothman J at [779]; Dhanji J at [826] Decision: 1. To the extent necessary, grant leave to appeal on all grounds. 2. Appeal dismissed. Catchwords: CRIME – Appeals – Appeal against conviction – Fresh evidence – whether evidence relied upon by appellant is "fresh evidence" – Incompetence of counsel – whether at trial counsel for the appellant failed to follow client's instructions and failed to cross-examine on the existence of various documents – Miscarriage of justice – whether trial judge erred by failing to leave the defence of mental illness to the jury – whether trial judge erred by failing to leave manslaughter to the jury on the basis of the defence of substantial impairment – whether trial judge erred in admitting evidence – whether trial judge erred by failing to leave manslaughter to the jury on the basis of self-defence and/or provocation – whether trial judge erred by failing to give a variety of directions – whether there was a "shift" or "split" in the Crown case which caused the trial to miscarry – whether trial judge erred by including juror who had been chosen to speak on behalf of jury at earlier time in the ballot to select verdict jury – operation of proviso in those circumstances Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), s 7 Crimes Act 1900 (NSW), s 23, 23A, s 421 Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 6 Evidence Act 1995 (NSW), ss 55, 90, 137, 138, 165 Jury Act 1929 (Qld) Jury Act 1977 (NSW), ss 19, 55F, 55G Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), ss 36, 98, 217 Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW), cl 8(1), Pt 7 Legal Profession Uniform Conduct (Barristers Rules) 2015, r 65 Mental Health (Forensic Provisions) Act 1990 (NSW), ss 28, 30, 38 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15 Cases Cited: (Restricted Judgment) [2021] NSWCCA 227 A.E.Terry's Motors Ltd v Rinder [1948] SASR 167 A1 v R; A2 v R [2016] NSWSC 1288 Abou-Chabake v R (2004) 149 A Crim R 417; [2004] NSWCCA 356 Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 Apostolides v The Queen (1984) 154 CLR 563; [1984] HCA 38 ARS v R [2011] NSWCCA 266 Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246 Bonnard v London General Omnibus (1921) 38 RPC 1 Browne v Dunn (1894) 6 R 67 Bullard v The Queen [1957] AC 635 Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21 Burrell v R [2009] NSWCCA 193 Carr v Baker [1936] SR (NSW) 301 Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665 Colosimo v Director of Public Prosecutions [2006] NSWCA 293 Commissioner for Superannuation v Scott (1987) 13 FCR 404 Crane v Director of Public Prosecutions [1921] 2 AC 299 Da Costa v The Queen (1968) 118 CLR 186; [1968] HCA 51 Davis v R [2017] NSWCCA 257 De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33 Decision restricted [2022] NSWCCA 95 Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 Director of Public Prosecutions (Vic) v Marijancevic (2011) 33 VR 440; [2011] VSCA 355 Director of Public Prosecutions v Shannon [1975] AC 717 DN v R (2016) 92 NSWLR 600; [2016] NSWCCA 252 Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808 Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Fabre v Arenales (1992) 27 NSWLR 437 Fang v R [2018] NSWCCA 210 Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 Flanagan v R [2013] NSWCCA 320 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Gilham v R (2012) 224 A Crim R 22 [2012] NSWCCA 131 Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64 Greenhalgh v R [2017] NSWCCA 94 Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708 Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 47 HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 Hofer v R [2019] NSWCCA 244 Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25 House v The King (1936) 55 CLR 499; [1936] HCA 40 Ignjatic v R (1993) 68 A Crim R 333 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Jack v Smail (1905) 2 CLR 684; [1905] HCA 25 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 Johns v The Queen (1979) 141 CLR 409; [1979] HCA 33 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1 Katsano v The Queen (1999) 199 CLR 40; [1999] HCA 50 King v The Queen (1986) 161 CLR 423; [1986] HCA 59 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43 KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270 La Rocca v R [2021] NSWCCA 116 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 Lazarus Estates Ltd v Beasley [1956] 1QB 702 Lee Chun-Chuen v The Queen [1963] AC 220 Levinge v Director of Custodial Services (1987) 9 NSWLR 546; 27 A Crim R 163 Libke v The Queen (2007) 230 CLR 599; [2007] HCA 30 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Lo Tin v R [1964] Crim LR 135 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31 Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160 Masciantonio v The Queen (1994-1995) 183 CLR 58; [1995] HCA 67 McKay v The Queen (1935) 54 CLR 1; [1935] HCA 70 McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 Mencarious v R [2008] NSWCCA 237 MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35 MIH v R [2007] NSWCCA 199 Moffa v The Queen (1977) 138 CLR 601; [1977] HCA 14 Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 Mortada v R [2014] NSWCCA 36 Mulholland v R [2019] NSWCCA 257 Mulvihill v R [2016] NSWCCA 259 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 Ng v The Queen (2003) 217 CLR 521; [2003] HCA 20 Nguyen v R [2008] NSWCCA 322 Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23 Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 NSW Commissioner of Police v Tuxford [2002] NSWCA 139 Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9 Nweke v R [2020] NSWCCA 153 O'Brien Glass Industries Ltd v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441 Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 Palser v Grinling [1948] A.C. 291 Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15 Peacock v The King (1911) 13 CLR 619; [1911] HCA 66 Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 R v Anderson (1991) 53 A Crim R 421 R v Ayoub (1984) 2 NSWLR 511 R v Batte (2000) 49 OR (3d) 321 R v Birks (1990) 19 NSWLR 677 R v Brown (2004) 148 A Crim R 268; [2004] NSWCCA 324 R v Burton (1986) 24 A Crim R 169 R v Caine (1990) 48 A Crim R 464 R v Cheatham [2000] NSWCCA 282 R v Christopher Robin Jones (NSWCCA, 2 August 1985, unreported) R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 R v Damic [1982] 2 NSWLR 750 R v Dempster [1924] SASR 299 R v Donnelly (1987) 96 A Crim R 432 R v Egan (Court of Criminal Appeal (NSW), 7 July 1997, unrep) R v Em [2003] NSWCCA 374 R v Esposito (1989) 45 NSWLR 442 R v Fantakis [2018] NSWSC 1815 R v Fantakis, Woods and Cheong [2018] NSWSC 749 R v Fantakis; R v Woods [2018] NSWSC 1700 R v Fantakis; R v Woods [2018] NSWSC 1814 R v Foy (1922) 39 WN (NSW) 20 R v Gover (2000) 118 A Crim R 8; [2000] NSWCCA 303 R v Grech; R v Kadir [2017] NSWCCA 288 R v Green (2002) 4 VR 471; [2002] VSCA 34 R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 R v Hall [1971] VR 293 R v Hunter (No 2) [2013] NSWSC 1806 R v Irwin [1987] 1 WLR 902 R v Issa (Supreme Court NSW, Sperling J, 16 October 1995, unrep) R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 R v Kemp [1957] 1 QB 399 R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487 R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279 R v McIntyre [2000] NSWCCA 6 R v Meher [2004] NSWCCA 355 R v Micalizzi [2004] NSWCCA 406 R v Micallef (2002) 136 A Crim R 127; [2002] NSWCCA 480 R v MMJ (2006) 166 A Crim R 501; [2006] VSCA 226 R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 R v Murray (1987) 11 NSWLR 12 R v Nguyen (2001) 118 A Crim R 479; [2001] VSCA 1 R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 R v Peisley (1990) 54 A Crim R 42 R v Petroulias (2007) 73 NSWLR 134; [2007] NSWCCA 134 R v Petroulias (No 32) [2007] NSWSC 1302 R v Prasad (1979) 23 SASR 161 R v R (1981) 28 SASR 321 R v Riley [2020] NSWCCA 283 R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163 R v Shannon [1974] 2 All ER 1009 R v Shields (1967) VR 706 R v Short (1898) 19 LR (NSW) 385 R v Smith [1954] QWN 49 R v Sutton (1986) 5 NSWLR 697 R v Tumanako (1992) 64 A Crim R 149 R v Zaiter [2004] NSWCCA 35 Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35 Re Bonny [1986] 2 Qd.R 80 Re Burford; Burford v Clifford [1932] 2 Ch 122 Re Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9 Re M'Naghten's Case (1843) 8 ER 718 Re Migliorini; ex parte Silk Brothers (1974) 22 FLR 491 Reyne (a pseudonym) v R [2022] NSWCCA 201 Roach v R [2019] NSWCCA 160 Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 Rondel v Worsley [1969] 1 AC 191 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Selby v R [2017] NSWCCA 40 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Sinclair v The Queen (1946) 73 CLR 316; [1946] HCA 55 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325 Spedding v State of New South Wales [2022] NSWSC 1627 Stapleton v The Queen (1952) 86 CLR 358; [1952] HCA 56 Stingel v The Queen (1990) 171 CLR 312 Sulaeman v R [2013] NSWCCA 283 Tabalbag v R (2016) 258 A Crim R 240; [2016] NSWCCA 48 Tekely v R [2007] NSWCCA 75 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32 The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21 The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 The Queen v Nguyen (2010) 242 CLR 491; [2010] HCA 38 The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13 The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1 Tillmanns Butcheries v Australasian Meat Industry Employees Union (1979) 42 FLR 331 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Tran v The Queen (2000) 105 FCR 182; [2000] FCA 1888 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58 Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 Xie v R [2021] NSWCCA 1 Texts Cited: A Ligertwood, Australian Evidence Cases and Materials (1995, Butterworths) B Collier, Second Reading Speech of the Legislative Assembly, Jury Amendment Act 2007 (NSW) (7 November 2007) D Howard and B Westmore, Crime and Mental Health Law in New South Wales (2019, 3rd ed, LexisNexis Butterworths) J D Heydon, Cross on Evidence (2015, 10th ed) New South Wales Law Commission, Jury Selection (2007 NSWLRC 117) Category: Principal judgment Parties: Elefterios (Terry) Fantakis (Applicant) Regina (Respondent) Representation: Counsel: M Ramage QC with T Woods (Applicant) (on grounds 1 and 2 only) E Fantakis (Applicant – self represented on remaining grounds) M Millward (Respondent) Solicitors: Andrews Solicitors (Applicant) (on grounds 1 and 2 only) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2013/297834; 2013/298264; 2021/248739 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Citation: R v Fantakis; R v Woods [2018] NSWSC 1700 Date of Decision: 8 November 2018 Before: Wilson J File Number(s): 2013/297834 HEADNOTE [This headnote is not to be read as part of the judgment] On 25 May 2018, Elefterios (Terry) Fantakis (the applicant) was found guilty by a jury of the murder of Elisha (Sam) Karmas. Mr Karmas was last seen shortly before 2pm on 11 August 2011 when he travelled with the applicant and one of the applicant's two co-accused, Mr Derek Cheong, in the applicant's van to the applicant's mother's home at Wilga Street, Punchbowl (the Wilga Street Property). The Crown case was that Mr Karmas was murdered by the applicant in the afternoon of 11 August 2011 and his body was disposed of by Mr Fantakis and his other co-accused, Mr Andrew Woods. Mr Karmas' body has not been discovered. Mr Woods was found guilty of the sole count of being accessory after the fact to murder. Mr Cheong was found not guilty of the same offence. On 8 November 2018, the trial judge sentenced Mr Fantakis to a term of 24 years' imprisonment, commencing on 3 October 2013 and expiring on 2 October 2037, with a non-parole period of 18 years expiring on 2 October 2031. The applicant sought leave to appeal against his conviction pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW), raising eighteen grounds of appeal (some of which contained a number of sub-grounds). Leave is required pursuant to s 5(1)(b) of that Act as the grounds (as framed) are not confined to questions of law. For various grounds leave is also required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) in circumstances where the direction which it is now contended ought to have been given by the trial judge was not sought by defence counsel who appeared for the applicant at trial. To the extent necessary, leave to appeal was granted in respect of all of the grounds of appeal. The appeal was dismissed on all grounds. As to grounds 1 and 2 (being that the trial miscarried because the trial judge failed to leave the defence of mental illness to the jury, and that the trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of substantial impairment). The Court held (per Ward ACJ at [274]-[279], Rothman J agreeing at [825] and Dhanji J agreeing at [849]): Per Ward ACJ at [274]-[279]: 1. The evidence was not sufficient to enliven a duty on the part of the trial judge to leave the defence of mental illness to the jury nor was it sufficient to raise such a duty in respect of the defence of substantial impairment. 2. As to the defence of mental illness, although a formal diagnosis of mental illness is not necessary, there was nothing in the evidence to lead to the conclusion that a mental illness defence was open or viable. The first suggestion that the applicant suffered from mental illness was in late 2011, after Mr Karmas' disappearance, when the applicant's then partner considered that he was depressed. 3. A mental illness defence requires that the applicant not have appreciated that the act of killing was wrong. The intercepted communications between the applicant and Mr Woods, the applicant's obvious attempts to conceal evidence by cleaning the van and renovating the Wilga Street Property, and the applicant's reaction to his deluded belief as to his brother's death make it clear that the applicant appreciated that the act of killing a man was wrong. 4. As to the defence of substantial impairment, there was not a sufficient evidentiary foundation for a conclusion that a defence of substantial impairment was reasonably open or viable. Again, it is significant that the applicant's then partner placed the deterioration of the applicant's mental state towards the latter part of 2011 (after August 2011), and the writings and audio recordings manifesting the applicant's delusional thoughts were only brought into existence in 2012. Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246; Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20; R v Shields (1967) VR 706; R v Ayoub (1984) 2 NSWLR 511; R v Cheatham [2000] NSWCCA 282; Lo Tin v The Queen [1964] Crim LR 135; R v Damic [1982] 2 NSWLR 750; R v Issa (Supreme Court (NSW) Sperling J, 16 October 1995, unrep); James v The Queen (2014) 253 CLR 475; [2014] HCA 6; Fang v R [2018] NSWCCA 210; Mencarious v R [2008] NSWCCA 237; Flanagan v R [2013] NSWCCA 320; Lane v R [2013] NSWCCA 317; R v Tumanako (1992) 64 A Crim R 149 considered. Per Rothman J at [784]; [808]-[822]: 1. There is no evidence direct or indirect from which it is possible to conclude (other than by the existence of a theoretical possibility) that the applicant at the time of the conduct that caused the deceased's death did not know the nature and quality of his act or that what he was doing was wrong. 2. There was no direct evidence that at the time of the applicant's conduct the applicant was suffering a mental condition or psychosis that substantially impaired his capacity to understand the events. In and of itself a delusional belief is not an impairment of the mind. 3. The material in this trial includes proved delusional beliefs possessed by the applicant and a later diagnosed psychosis. While it would not be irrational to conjecture that the psychosis existed earlier and was causative of the delusions, it would also not be irrational to infer on the material that the psychosis developed much later, if it did develop, and there was no substantial or causative impairment of the mind affecting the applicant's conduct. 4. From the applicant's perspective the inference of substantial impairment and no substantial impairment would be equipoised. Since each of the existence and non-existence of a psychosis at the relevant time is available, neither inference can be drawn in a manner that satisfies the applicant's burden of proof at the trial. 5. There was no requirement that the trial judge direct on the availability of manslaughter by reason of substantial impairment and no error on the part of the trial judge in failing to give the direction (nor did such failure deprive the applicant of an opportunity for acquittal or involve a miscarriage of justice). It is not for this Court on appeal to insist on the exercise of the trial judge's discretion to provide such a direction in circumstances where the law does not require such a direction. Carr v Baker (1936) SR (NSW) 301; Fabre v Arenales (1992) 27 NSWLR 437 considered. Per Dhanji J at [826]-[849]: 1. The fact that a person has a delusional belief does not mean that they are suffering an abnormality of mind within s 23A of the Crimes Act. However, having regard to the particular nature of the delusions in this case, the timing and impact of the deaths of the applicant's father and brother, the evidence of Dr Saker together with the fact that the applicant was, after 11 August 2011, suffering from serious mental illness, it is a rational inference that the delusions he suffered as at 11 August 2011 were the product of, at least, an emerging mental illness (though this is not the only inference necessarily available). 2. The question that then arises is whether there is evidence to sustain an inference that the applicant's capacity to judge whether his actions were right or wrong or to control himself were substantially impaired. Evidence that the applicant sought to avoid liability is not probative of a capacity to understand right or wrong but it is also clear that the simple fact of an abnormality of mind cannot satisfy s 23A(1). 3. While an inference of mental abnormity is available, the nature and impact of the illness as at 11 August 2011, apart from the existence of delusional belief, is (as a result of the manner in which the case was run), quite uncertain. Further events, such as the police investigation, and on the basis on which the ground is premised, the applicant having killed Mr Karmas, were additional stressors after 11 August impacting on the applicant's mental state. 4. There was no exploration of the impact of any mental abnormality extant as at 11 August 2011 generally nor any exploration of its impact on the applicant's capacity to understand right or wrong. It does not follow from a delusional belief that Mr Karmas killed the applicant's brother, that the applicant did not understand that it was wrong to kill Mr Karmas or that his understanding of this was impacted by any abnormality of mind. Evidence from which the impact of the mental abnormality could be judged was absent in this case. 5. The same analysis applies with respect to whether the evidence was capable of sustaining an inference on the balance of probabilities that the applicant's capacity to control himself was substantially impaired. 6. The evidence was not such as to oblige the trial judge to leave the partial defence of substantial impairment, or the defence of mental illness, to the jury. It follows there was no miscarriage of justice in her Honour not doing so and grounds 1 and 2 must fail. As to ground 3 (being that the verdict of the jury was unreasonable, unsafe and unsatisfactory). The Court held (per Ward ACJ at [328]-[336], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. It was clearly open to the jury on the evidence adduced at trial to be satisfied beyond reasonable doubt that Mr Karmas died on 11 August 2011. It was also reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant had murdered Mr Karmas on the afternoon of 11 August 2011 at the Wilga Street Property and later disposed of his body. The circumstantial evidence pointing to that conclusion is overwhelming. It has not been established that the jury should have entertained a reasonable doubt as to the applicant's guilt. M v The Queen (1994) 181 CLR 487; [1994] HCA 63; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; Libke v The Queen (2007) 230 CLR 599; [2007] HCA 30; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35; Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433; Mulholland v R [2019] NSWCCA 257; Dickson v R (2017) 94 NSWLR 476; Nweke v R [2020] NSWCCA 153; Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 considered. As to grounds 4 and 5 (being that the Crown split its case, depriving the applicant of a fair trial and that a miscarriage of justice occurred by her Honour leaving to the jury a possible basis of conviction which had not been relied upon by the Crown). The Court held (per Dhanji J at [879]-[897], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]): 1. Whether a change in the Crown case in the course of the trial resulted in a miscarriage of justice is determined by reference to the fairness of the applicant's trial. It cannot be said that there was a miscarriage of justice as a result of the reference to the 5 o'clock theory in the Crown's closing address. Insofar as the applicant complained that his mother's evidence was relevant to the alternative theory raised by the Crown in its final address, there were sound forensic reasons militating against calling the applicant's mother. More significantly, while the applicant's trial counsel agreed he had been taken by surprise, he regarded it to be advantageous to the applicant to rely on it as an indication of weakness in the Crown case. King v The Queen (1986) 161 CLR 423; [1986] HCA 59; KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487; Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192; R v Anderson (1991) 53 A Crim R 421 considered. As to ground 6 (alleging failure to give certain directions and as to the summing up generally). The Court held (per Dhanji J at [932], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]) that none of the individual sub-grounds was made out; nor was the cumulative effect of the sub-grounds such that the summing up lacked appropriate balance. Ground 6(1) 1. As to ground 6(1) (failure to give a Shepherd direction), particular directions in relation to proof of a circumstantial case (such as a direction that the inference of guilt should not only be a rational inference, but rather, the only rational inference that can be drawn) are no more than "an amplification of the rule that the prosecution must prove its case beyond reasonable doubt". The trial judge gave an entirely orthodox circumstantial evidence direction. No more was required. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 applied. 2. Satisfaction of the elements beyond reasonable doubt necessarily implied satisfaction of the four steps identified by the applicant as intermediate facts, and vice versa. Each step relied on a body of circumstantial evidence which was to be considered together and not in a piecemeal fashion. There is no basis on which to conclude that the application of the standard of proof was undermined in any way by the absence of an "indispensable fact" direction. Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 applied. 3. As to the applicant's complaint that proof that Mr Karmas returned to Wilga Street around 5pm on 11 August was an indispensable intermediate fact, for the reasons given with respect to grounds 4 and 5, it was open to the jury to conclude that the murder occurred earlier, in the "67 minute window". 4. There was no single item of evidence which required a direction that it was necessary that the Crown prove that evidence beyond reasonable doubt. HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 considered. Ground 6(2) - breaches of the Browne v Dunn rule 1. As to ground 6(2) (the complaint that the 5 o'clock theory was not advanced through cross-examination and that the applicant was taken by surprise by the prosecution address), no unfairness arose from the complained of denial of the opportunity to deal with this theory in the applicant's evidence as it was plain on the applicant's evidence that his version was that Mr Karmas left shortly after arriving at Wilga Street and never returned. As to the argument that a miscarriage was occasioned as a result of the point at which the Crown raised the alternative theory, this is dealt with in the context of grounds 4 and 5. Browne v Dunn (1894) 6 R 67; MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 applied. Ground 6(3) – Jones v Dunkel 1. As to ground 6(3), which raises a complaint of a failure to give a "Jones v Dunkel direction" in relation to an asserted failure by the Crown to call the applicant's mother, the situation is governed by what has come to be known as a Mahmood direction, the appropriateness of which is predicated on an expectation that the witness would be called. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; RPS v The Queen (2000) 199 CLR 620; [2000] HCA; Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 considered. 2. The Crown prosecutor advised the applicant's counsel that he did not intend to call Mrs Fantakis; and no issue was raised by the applicant's counsel as to the prosecutor's decision. The evidence of the applicant's counsel read on the appeal was that the applicant did not want his mother to be called. There was no application, after the Crown address in which the 5 o'clock theory was raised, to call Mrs Fantakis. It is not open to the applicant now to complain that the prosecution was obliged to call her. The applicant has not established a miscarriage of justice on the basis of a failure to give a Jones v Dunkel direction or a Mahmood direction. Ground 6(4) – warning of danger to convict on "writing" evidence 1. As to ground 6(4), being a complaint that the trial judge failed adequately to warn the jury of the "danger of convicting the applicant solely on the writings and videos made by the applicant, taking into account that the evidence was not corroborated by any other evidence led by the Crown, and were made by the applicant who at the time was suffering from psychosis", the Crown case did not rely "solely" on admissions of the applicant in the "writings". The prosecution case accepted that parts of those materials were unreliable. The present case was not one akin to a prosecution case reliant on a single witness, where a warning may be required (or may have, at one time, been required) as to the need to be satisfied of the evidence of that witness beyond reasonable doubt, and the consequent need to scrutinise that witness' evidence with care. R v Murray (1987) 11 NSWLR 12 distinguished. Ground 6(5) – the summing up was unbalanced 1. As to ground 6(5)(i), by which the applicant contends that the summing up was lacking in balance such that a miscarriage was occasioned, none of the matters raised by ground 6(5)(i) raises any issue of imbalance in the summing up, whether considered individually or cumulatively, McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 considered. 2. As ground 6(5)(ii) (the complaint that the trial judge "reinforced the existence of the writing evidence, whilst failing to raise the obvious contradiction made by the Crown on the first day of its closing that the only evidence going to the second case theory was not reliable and lacked credibility"), the trial judge's discussion of that evidence was not "extensive" in the sense that any undue weight was given to it; and there was reference to the applicant's response to that evidence. The trial judge properly characterised the manner in which the Crown sought to rely on the writing evidence and identified the potential issues as to its reliability. There was no unfairness in any failure to direct the jury with respect to the unreliability of the evidence suggesting Mr Karmas had returned to Wilga Street at around 5pm. 3. As to ground 6(5)(iii) (the complaint that the trial judge failed to "emphasise the obvious misconduct by detectives who made false and misleading statements" in relation to Ex AA, statements which the applicant contended were "obviously generated to [suit] the case being pursued by police"), there was no issue that the applicant was the author of this note (which on the Crown case related to a plan to dispose of the body) but there was an issue in relation to where it was found. In summing up, the trial judge instructed the jury that Mr Fantakis pointed out "the uncertainty of some of the police evidence about precisely where that note had been found, and he disputes that it was ever in the blue van". Having regard to the way in which the applicant's case was conducted, there was no unfairness in the manner in which her Honour dealt with this issue. 4. As to ground 6(5)(iv) (the complaint that no remarks were made on the "obviously flawed investigation" whereas the trial judge gave "an opinion about how circumstantial cases such as this can be very strong"), the trial judge in directing the jury as to the circumstantial case did not express any view as to the strength of the case; rather, the trial judge did no more than to point out, in orthodox fashion, that the strength of the case is not determined by classifying it as based on either direct evidence or circumstantial evidence. The trial judge made plain that the case was to be assessed on its merits. There is no substance in this complaint. 5. As to ground 6(5)(v) (the complaint that the trial judge failed to raise the second part of Mr Charawani's evidence (which related to evidence in Mr Charawani's cross-examination as to Mr George Karmas) and the complaint as to conduct by police that the applicant contends sought only to obtain evidence in support of conviction of the applicant), the evidence of Mr Charawani in this respect was not a major part of the applicant's case; the trial judge directed the jury in relation to the defence theory with respect to possible "bad actors" around Mr Karmas; and the absence of reference to the particular evidence of Mr Charawani in this regard was not such as to render the summing up unbalanced. As to the complaint of bias in the police investigation which should have been dealt with by the trial judge, the focus of the prosecution with respect to Mr Charawani's evidence was his evidence with respect to the threats made to kill Mr Karmas. This did not necessitate any direction as to bias in the investigation and there was no submission by the applicant's counsel with respect to Mr Charawani's evidence in this regard. 6. As to ground 6(5)(vi) (the complaint that the trial judge referred on multiple occasions to evidence that Mr Karmas' DNA was located in the applicant's van emphasising the presumptive test being of blood, omitting that the defence were not able to test this as the sample was destroyed), the trial judge made plain to the jury that the testing was no more than a presumptive test and reminded the jury that there are "many, many substances which can give false positives for human blood". This was sufficient to ensure undue weight was not given to this evidence. 7. As to ground 6(5)(vii) (the complaint that the trial judge failed to tell the jury that Mr Karmas' DNA may have been deposited as a result of transference), the trial judge not only referred to the multiple opportunities for Mr Karmas' DNA to be deposited in the van prior to 11 August, but also told the jury that DNA could have been deposited by what was referred to as transference such as by being deposited by the applicant after he had been in contact with Mr Karmas. There is no merit in this complaint. 8. As to ground 6(5)(viii) (by which the applicant asserts that the emphasis and detail of the summing up was centred on the Crown's case "while protecting the Crown's case from criticism, notwithstanding, the unfairness caused by the Crown in advancing the second case theory after the evidence closed"), the "second case" or "5 o'clock" theory" has been dealt with in grounds 4 and 5. The summing up as a whole traversed the evidence and the respective cases of the Crown and the applicant in a fair and balanced manner. This sub-ground is not made out. As to ground 7 (Non-disclosure of documents resulting in a miscarriage of justice). The Court held (per Dhanji J at [945], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]): 1. As to the complaint that "NSW Police and the prosecution failed to disclose documents in existence causing a miscarriage of justice", the applicant has not established a miscarriage of justice as a result of the non-disclosure with respect to any of the matters raised under this ground. Edwards v The Queen [2021] HCA 28; (2021) 95 ALJR 808; Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708. 2. As to ground 7(1) (concerning the phone records used to compile the spreadsheet marked as Exhibit J), it is clear that the information that was available was disclosed; and it has not been established that there was any relevant non-disclosure with respect to the telephone records. 3. As to ground 7(2) (concerning documents sought in item 13 of the applicant's subpoena of 28 June 2017), the applicant's complaint as to the non-disclosure is not made out. There is no basis for an inference of police misconduct. As to the further complaint in relation to the execution of crime scene warrants, and in particular a failure to film the execution of the warrant, the failure to appoint an independent observer and a failure to use property seizure forms and provide receipts to the occupant, there is no legislative foundation for the assertion that this amounted to misconduct and any asserted failings were available to the applicant to exploit at trial if it was considered expedient. Part 7 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) considered. 4. As to ground 7(3) (concerning documents held at the Bass Hill Police holding yard), to the extent that there was any inadequacy material as to the documentation and police record-keeping with respect to the van, this was a matter available to the applicant to exploit at trial to the extent that it was likely to assist him. No miscarriage of justice is established on the basis of any failure to produce documents included in this sub-ground. 5. As to ground 7(4) (concerning the odometer reading of the seized blue van), there was no non-compliance or other misconduct on the part of the police in this regard (and lack of cooperation by the police, or obfuscation with respect to later odometer readings was available to the applicant to exploit if it was considered expedient). As to ground 8 (being that the trial judge erred in law by denying production of documents in relation to a subpoena filed by the defence on 16 March 2018). The Court held (per Dhanji J at [956], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]): 1. Although the trial judge (applying the relevant test at the time) ruled that, having regard to the material in the police reports, it could not be said that it was "on the cards" that the material sought by the relevant paragraphs in the subpoena could assist the applicant, and did not apply a test of apparent relevance, nothing turns on this in the circumstances of the case. There was no error in the trial judge denying production of the documents referred to in this ground. As to ground 9 (being that the trial judge wrongly admitted listening device evidence, Exhibits CS and CX on the grounds of consciousness of guilt). The Court held (per Dhanji J at [957]-[979], Ward ACJ agreeing at [337] and Rothman J agreeing at [779]): 1. The conduct in the present case satisfied the relevant criteria for relevance. The applicant had deliberately engaged in a discussion which related to causing harm to Detective Sergeant McGee. That conduct went to a material issue; it was relevant to establish that the applicant had a level of antipathy towards the lead investigator and an interest in doing her harm, and in doing so, to disrupt the investigation. It was open to infer that the applicant was motivated by an awareness that the investigation may uncover evidence of his guilt of the crime charged. The evidence was therefore relevant within the terms of s 55 of the Evidence Act. 2. As to the discretion under s 135 to exclude the evidence, or the requirement to do so under s 137, the trial judge correctly concluded that ss 135(b) and 135(c) had no application. The evidence was not, in the context of the trial, unduly lengthy. The evidence was relatively straightforward, albeit the Crown submitted some words could be made out while the applicant contended that other words were said, or at least that the Crown interpretation was not correct. While there was a dispute about the content, this did not make it misleading or confusing. 3. The real issue was whether the probative value of the evidence was substantially outweighed by "the danger that the evidence might be unfairly prejudicial" under s 135(a) or whether, pursuant to s 137, the "probative value [of the evidence was] outweighed by the danger of unfair prejudice to the defendant". The terms of s 135 are permissive ("may refuse to admit") while s 137 mandates exclusion ("must refuse to admit") and is limited to evidence adduced by the prosecutor in criminal proceedings. Thus, where objection is taken to evidence led by a co-accused, it is only s 135 that has application. More significantly, s 137 does not require, as s 135 does, that the probative value be "substantially" outweighed. Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 considered. 4. Unfair prejudice arises where there is a danger the jury will use the evidence in a manner adverse to the accused and logically unconnected with the purpose of its tender. The probative value of the evidence lies in the purpose for which it was tendered. That probative value is to be assessed on the basis of the definition of the term in the Dictionary of the Evidence Act: "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". Having regard to the word "could", this is to be done without seeking to evaluate the reliability or credibility of the evidence. IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 considered. 5. The existence of a possible explanation consistent with innocence does not render the evidence inadmissible. The evidence in this matter was not "intractably neutral". It was open to the jury to find the discussion was motivated by a concern that the participants' involvement in the crimes charged would be revealed. To the extent the evidence suggested, or could be explained by, the mental illness of the applicant and Mr Woods, the trial judge had regard to this consideration. There was no error in the trial judge's view (at [72]) that while "the jury could be prejudiced against the accused because of the suggestion (or reality) of their mental illnesses, [her Honour does] not regard the risk of that as a significant one". In the context of the trial as a whole, the applicant himself relied on the existence of mental illness to explain his writings relied upon by the Crown as admissions. Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22; R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 considered. 6. As to the other matters raised by the applicant, they were all theoretical possibilities. Evidence of other criminal or discreditable conduct is regularly put, or sought to be put, before a jury. While at times the nature of such evidence will be such that its prejudicial quality outweighs its probative value, the nature of the evidence in this case was not such that any prejudice on this basis could not be addressed with appropriate directions to the jury. The probative value of the evidence here was not outweighed by the danger of the unfair prejudice relied on before the trial judge. None of the further matters raised by the applicant on this appeal alters that conclusion. 7. As to the issue raised by the applicant with respect to the authenticity of the recordings and his reliance on evidence tendered in the Local Court together with the relevant transcript, the issue was known to him prior to his trial. The evidence is not relevantly "fresh" evidence. There was no challenge at trial as to the identity of the participants or the veracity of the recording, a matter as to which the applicant, given he was a participant, was in a position to give instructions. The applicant gave evidence and did not suggest he had not participated in the conversations attributed to him. In these circumstances admission of the evidence is not capable of establishing a miscarriage of justice in the relevant sense. The evidence sought to now be relied upon is not admissible on the appeal. A1 v R; A2 v R [2016] NSWSC 1288; Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35; R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 considered. As to ground 10 (being that the trial judge erred by including the foreperson in the ballot process contrary to s 55(2)(a) [sic] of the Jury Act) The Court held (per Ward ACJ at [373]-[389], Rothman J agreeing at [779] and Dhanji J agreeing at [980]), finding error as contended by ground 10 but applying the proviso and refusing the relief sought: 1. The clear legislative intention as expressed in s 55G of the Jury Act is that if an expanded jury has chosen one of its members to speak on behalf of the jury as a whole (as a foreperson) then that person is not to be included in the ballot required to determine the constitution of the verdict jury. Thus, there was an error in the manner in which the ballot was conducted. However, the error did not involve such a departure from the requirements of the trial as to lead to the conclusion that there was, as a result of the error without more, a substantial miscarriage of justice. Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31; Tabalbag v R (2016) 258 A Crim R 240; [2016] NSWCCA 48; R v Brown (2004) 148 A Crim R 268; [2004] NSWCCA 324; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 distinguished. Crane v Director of Public Prosecutions [1921] 2 AC 299; Katsano v The Queen (1999) 199 CLR 40; [1999] HCA 50; R v Petroulias (No 32) [2007] NSWSC 1302 applied. As to ground 11 (being that the accumulation of errors caused the trial to miscarry). The Court held (per Ward ACJ at [392], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. This ground is in effect an overall miscarriage of justice ground predicated on the accumulation of asserted errors that have been dealt with (and dismissed) in other grounds. Ground 11 takes the matter no further. As to ground 12 (being that the trial judge failed to give a fundamental direction to the jury of the need to separate the evidence between the two conflicting hypotheses relied upon by the Crown The Court held (per Ward ACJ at [411]-[413], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. This ground of appeal relates to the complaints raised as to the conflicting case theories identified by the applicant (and has been considered in relation to various of the other grounds of appeal raised by the applicant – see grounds 3, 4 and 5). There was no miscarriage of justice in relation to the way in which the case was left to the jury in relation to the two windows of time within which the murder might be said to have occurred. It was open to the jury to conclude that the murder occurred within the first window of time. 2. As to the "conjunction proposition", error has not been established arising out of the trial judge not having directed the jury to the effect that it must not take into account the text messages when or before assessing the 5 o'clock case theory. It does not necessarily follow from a conclusion that Mr Karmas had left the Wilga Street Property shortly after he arrived at 1.52pm, and did not return until at or about 5pm, that the text messages were sent by Mr Karmas. As the Crown notes, there was evidence as to the implausibility of those messages having been sent by Mr Karmas even if he were still alive at that time. 3. A direction of the kind for which the applicant now contends (concerning the so-called 5 o'clock case theory or conjunction proposition) was not sought by counsel for the applicant. No miscarriage of justice has been shown. As to ground 13 (being that the trial miscarried as the trial judge wrongly admitted a number of documents). The Court held (per Ward ACJ at [464]-[473], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. Noting that there is some uncertainty as to whether the exercise of discretion under s 90 of the Evidence Act is reviewable on appeal only on the principles stated in House v The Queen or the appropriate standard of appellate review is the correctness standard, it is unnecessary to address that question because whichever standard of review is applied, the conclusion of the trial judge that the evidence was admissible and should not be excluded pursuant to s 90 of the Evidence Act is correct. House v The Queen (1936) 55 CLR 499; [1936] HCA 40; MIH v R [2007] NSWCCA 199; Sulaeman v R [2013] NSWCCA 283; The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40; R v Riley [2020] NSWCCA 283 considered. Em v The Queen (2007) 232 CLR 67; [2007] HCA 46; The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1 applied. As to ground 14 (being that there has been a miscarriage of justice in the trial of the applicant on account of the conduct by NSW Police during the course of the investigation). The Court held (per Ward ACJ at [498]-[501], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. The complaints raised by the applicant as to the investigation into Mr Karmas' disappearance and allegations of misconduct said to give rise to a substantial miscarriage of justice are not made good. 2. As to the criticisms of the police investigation, they were in any event were matters of which the jury was well apprised to take into account when assessing the evidence. 3. As to the complaints in relation to the execution of search warrants (and alleged failure to follow standard operating procedures, dealt with in relation to ground 7), there is a distinction between search warrants and crime scene warrants; and the absence of an independent observer or the failure to film the crime scene warrants does not amount to non-compliance with a statutory requirement. 4. As to the alleged breach of cl 8 of the LEPR Regulation, the obligation contained therein is qualified and in any event the applicant accepts that he was provided with notes of the crime scene warrant executed at the Wilga Street Property, which included property seizure forms. The applicant's request to be provided receipts by the police officers was raised during the trial by the applicant's counsel for a different forensic purpose (to explain the applicant's view of the investigation and the impact it had upon him over time). 5. The applicant has no evidentiary basis for the assertion as to collateral purpose; nor is there any proper evidentiary foundation for the allegations of perjury or that evidence was "planted". (The complaint made in relation to the response to item 13 of the 28 June 2017 subpoena is addressed in the context of ground 18.) As to ground 15 (that there has been a miscarriage of justice in the trial of the applicant on account of NSW Police withholding and not disclosing computer data seized from the applicant). The Court held (per Ward ACJ at [526], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. It is not established that the documents were not in fact contained in the prosecution brief (and as such accessible and available for use by the applicant in the course of the trial). In any event, even if the legal research documents were not provided to the applicant, this does not give rise to a miscarriage of justice in light of the fact that the applicant was represented by counsel at trial (and, as discussed below in consideration of ground 18, it must be concluded that there was no incompetence by the applicant's counsel or failure to follow the applicant's instructions). As to ground 16 (that the trial judge failed to give a fundamental direction to the jury that they had to be satisfied of the truth of the admissions in the writing evidence beyond a reasonable doubt before being able to find the accused guilty of the 5 o'clock theory). The Court held (per Ward ACJ at [546]-[547], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. The Crown case did not rely solely on the writings made by the applicant. As the trial judge made clear, there was evidence of the applicant's mental state at the time of the writings that was said to affect the reliability of those writings and the jury was cautioned more than once as to the need to look for corroboration when considering the Crown's circumstantial case. This is not a case where a direction of the kind here sought was required as a matter of law. Error has not been established arising out of the trial judge's directions in relation to the use that could be made of the applicant's writings. Burns v The Queen and R v Green, (Restricted Judgment) [2021] NSWCCA 227; The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36; ARS v R [2011] NSWCCA 266 considered. 2. The fact that counsel did not raise any issue as to such a direction supports the conclusion that it was not thought that it was necessary for the jury's appreciation of its task that such a direction be given. No miscarriage has been demonstrated in this regard and hence leave pursuant to r 4 of the Criminal Appeal Rules to rely on this ground of appeal should be refused but if leave were to be granted, this ground of appeal would not succeed. Selby v R [2017] NSWCCA 40; Tekely v R [2007] NSWCCA 75 considered. As to ground 17 (being that the trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of self-defence and provocation) The Court held (per Ward ACJ at [577]-[580], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. As to self defence, the evidence of the writings did not raise a reasonably viable claim for an alternative verdict of manslaughter on the basis of excessive self-defence. There was nothing to corroborate the assertion that Mr Karmas had with him at any time on 11 August 2011 a taser; and the writings (if true) included a lengthy period of torture that could on no view have been seen as in self defence. 2. As to provocation, the writings do not leave reasonably open a defence of provocation. Accepting the version of facts most favourable to the applicant, there is no evidence that the applicant acted in an uncontrolled emotional state (particularly given that his conduct on his own account lasted for several hours and included disarming, punching, tasering and torturing Mr Karmas) nor that the applicant's forming of a murderous intent was induced by the conduct of Mr Karmas (even if it is accepted that he was carrying a taser as the applicant contends). Further, no jury could have been other than satisfied that an ordinary person would not have formed an intention to commit grievous bodily harm or murder, as the applicant did, upon the mere sight of Mr Karmas carrying a taser (being a weapon). In the present case the evidence of the writings upon which the applicant relies is incapable of satisfying the essential elements of the partial defence. Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16; Masciantonio v The Queen (1995) 183 CLR 58 considered. As to ground 18 (being ineptitude of Counsel – denial of due process) The Court held (per Ward ACJ at [761]-[762], Rothman J agreeing at [779] and Dhanji J agreeing at [980]): 1. Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice. Appellate intervention by an appellate court on such a basis is a matter about which caution must be exercised. Counsel's conduct is to be examined objectively, from the record of the trial. The relevant standard is whether the conduct was "incapable of rational explanation on forensic grounds". It is insufficient for an applicant "simply to point to some failing, even a gross failing, of the legal representative who appeared"; rather, what must be demonstrated is that what did or did not occur affected the outcome of the trial. Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662; R v Birks (1990) 19 NSWLR 677; La Rocca v R [2021] NSWCCA 116; Xie v R [2021] NSWCCA 1; Roach v R [2019] NSWCCA 160; Davis v R [2017] NSWCCA 257 considered. 2. None of the matters referred to by the applicant under this ground of appeal (even if established) amounted to ineptitude or incompetence of the kind that would give rise to a miscarriage of justice and warrant the quashing of the convictions and a retrial. 3. As to ground 18A (that Counsel failed to utilise documents during the cross-examination of material witnesses, depriving the applicant of the fundamental right to a fair trial), this comprises a series of complaints (overlapping with complaints made in other grounds of appeal and within this same ground of appeal) which go no further than a complaint as to forensic decisions taken by the trial counsel as to cross-examination and the like (and, insofar as the complaint is as to a failure to put to prosecution witnesses serious allegations of misconduct or criminal conduct, there is not established to have been an evidentiary foundation to make such questioning proper in any event). 4. As to ground 18B (that Counsel failed to comply with instructions in relation to the subpoena served on 28 June 2017) this raises much of the same issues referred to in the previous sub-ground. The complaints under ground 18B relating to negotiation to narrow the subpoena again fall largely within counsel's discretion (and, in various aspects, are without foundation). 5. As to ground 18C (that Counsel failed to seek relevant directions as instructed by applicant), the first and third complaints under ground 18C are dealt with in other grounds; and the second (as to Mrs Antonia Fantakis' statement) goes nowhere as it is clear that the trial judge had that material before her at the time. 6. As to ground 18D (that the applicant's legal representatives failed to research information and obtain expert evidence as to the Georges River Note (relevant to the applicant's contention as to the advice given to him by a spiritual healer); and that Counsel failed to raise this issue in chief), it is difficult to see how some unidentified spiritual healer would have assisted the applicant but in any event there was ample evidence (even excluding Ex AA) to make it reasonably open to the jury to find the applicant guilty of murder and to exclude any rational explanation consistent with the hypothesis of his innocence. Judgment 1. WARD ACJ: On 25 May 2018, following a trial before Wilson J and a jury of twelve, the applicant (Elefterios Fantakis, known as Terry) was found guilty on the sole count with which he was charged – the murder of Elisha (Sam) Karmas, who was last seen alive on 11 August 2011 and whose body has not since been found. The Crown case was that Mr Karmas was murdered by the applicant on the afternoon of 11 August 2011 and that his body was concealed or otherwise disposed of by the applicant and one of his two co-accused (Andrew Woods) in the early hours of 12 August 2011. Mr Woods was found guilty on the sole count against him of accessory after the fact to murder. The applicant's second co-accused (Derek Cheong) was found not guilty on the sole count against him of accessory after the fact to murder. 2. On 8 November 2018, the applicant was sentenced to a term of imprisonment of 24 years commencing on 3 October 2013 with a non-parole period of 18 years. The non-parole period expires on 2 October 2031. The aggregate head sentence expires on 2 October 2037. There is no application for leave to appeal against sentence. 3. The applicant here seeks leave to appeal against his conviction on numerous grounds (seventeen in his initial notice of appeal and a further eighteenth ground raised at the hearing of the appeal). Leave to appeal is required pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act) as the grounds of appeal (as framed) are not confined to a question of law. In relation to some of the grounds (6(1)-(5); 12 and 16), leave is required pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) in circumstances where the direction which it is now contended ought to have been given was not sought by defence counsel who appeared for the applicant at trial. 4. The applicant was represented on the present application by Senior and Junior Counsel in relation to grounds 1 and 2; but represented himself (via audio-visual link) in respect of the remaining grounds of appeal. 5. The Court received a large volume of material on the appeal which was relied upon by the applicant: submissions dated 30 April 2021 from his Counsel in relation to grounds 1 and 2; submissions dated 3 May 2021 by the applicant in relation to grounds 3-11; amended submissions dated 9 August 2021 by the applicant in relation to grounds 12-15; a second set of amended submissions dated 1 September 2021 by the applicant in relation to grounds 16 and 17; undated fresh evidence submissions from the applicant; and a lengthy document headed "Paragraphs 18(b) and (c): Cases & Outline to each Ground of Appeal" served with a cover letter dated 27 September 2021. 6. The applicant also relies on an affidavit sworn by him on 1 September 2021, including some annexures which the Crown maintains are not admissible as "fresh evidence" (Annexures A-P and R) (as to which see below at [153]- [158]). Following judgment being reserved the applicant has continued to forward to the Court correspondence relating to transcript of the trial which he maintains is of relevance; and the Court has received communications on behalf of Mr Fantakis from his co-accused, Mr Woods. 7. The Crown case was circumstantial (and the applicant here argues that there was very little scientific evidence to support the Crown case – the exception to this being evidence of Mr Karmas' DNA on the inside of one of the doors to the applicant's van and that sample testing presumptively for blood). In closing submissions at the trial, defence counsel then appearing for the applicant identified the central issues in relation to the charge against the applicant as being whether the Crown had established beyond reasonable doubt that Mr Karmas was dead and, if so, whether Mr Karmas' death was occasioned by an act of the applicant. 8. The Crown, in addition to reliance on certain writings and recordings which were admitted into evidence as admissions by the applicant, relied upon evidence of motive as well as behaviour following the offence said to show a consciousness of guilt. The applicant says that the evidence of motive was critically important and that the Crown emphasised in closing that it was the applicant's belief that Mr Karmas had killed the applicant's brother (Nicholas Fantakis) which motivated the applicant to murder Mr Karmas (see at T 2430.25-30). The applicant maintains that the writings on which the Crown relied in this regard were made when he was psychotic and are unreliable. 9. In summing up to the jury, the trial judge put the Crown case to the jury as follows (at SU 66-67): The Crown says that Mr Fantakis had, in the period between late May and early August 2011, become convinced that Maria Angeles and Sam Karmas had murdered Nicholas Fantakis, and possibly posed a threat to Mr Fantakis and his mother, and under the sway of that delusion, he threated to kill Mr Karmas and then did so. and, at SU 79, her Honour said: The Crown's case [is] that he [Mr Fantakis] [was] in a state of mind which left him out of touch with reality. Mr Fantakis came to hold the belief that Mr Karmas, acting in league with Maria Angeles, had murdered his brother, in May 2011. Grounds of Appeal 1. The grounds on which the applicant seeks leave to appeal against his conviction are as follows: 1. The trial miscarried because the trial judge failed to leave the defence of mental illness to the jury. 2. The trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of the defence of substantial impairment. 3. The verdict of the jury was unreasonable and cannot be supported having regard to the evidence and therefore was unsafe and unsatisfactory. 4. The Crown did split/shift its case depriving the applicant of a fair trial, causing the trial to miscarry. 5. Miscarriage of justice did occur by her Honour leaving to the jury a possible basis of conviction which had not been relied upon by the Crown and Mr Price. [This is the so-called "5 o'clock theory"] 6. Her Honour failed to give adequate directions during the summing up occasioning a miscarriage of justice. 7. Non-Disclosure of documents resulting in a miscarriage of justice. 8. Her Honour did error in law by denying production of documents in relation to a subpoena filed by the defence on 16 March 2018. 9. Her Honour wrongly admitted Listening Device evidence, Exhibits CS & CX on the grounds of consciousness of guilt. 10. Her Honour did error [sic] in law by including the foreperson in the ballot process, in contravention to Section 55(2)(a) [sic] of the Jury Act. 11. The accumulation of errors caused the trial to miscarry. 12. Her Honour failed to give a fundamental direction to the jury of the need to separate the evidence between the two conflicting hypotheses relied upon by the Crown (amended ground). 13. The trial miscarried as her Honour wrongly admitted a number of documents including: (a) A document seized from the applicant's vehicle, namely Ex AA: "Georges River Note"; and (b) The writing & video evidence seized from the applicant's home (new ground). 14. There has been a miscarriage of justice in the trial of the applicant on account of the conduct by NSW Police during the course of the investigation (new amended ground). 15. There has been a miscarriage of justice in the trial of the applicant on account of NSW Police withholding and not disclosing computer data seized from the applicant (new ground). 16. Her Honour failed to give a fundamental direction to the jury that they had to be satisfied of the truth of the admissions in the writing evidence beyond a reasonable doubt before being able to find the accused guilty of the 5 o'clock theory. 17. The trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of self-defence and provocation. 18. There has been a miscarriage of justice within in the meaning of the Criminal Appeal Act 1912, s 6 because of ineptitude of trial counsel, including: (a) Counsel failed to utilise documents during the cross examination of material witnesses; depriving the appellant his fundamental right to a fair trial. The documents included: (i) Documents produced from a subpoena served on the Commissioner of Police on 3 August 2015; (ii) Supreme Court transcripts for a bail application heard on 18 August 2016, including the submissions filed by the appellant; (iii) Emails/faxes sent to detectives during the homicide investigation identifying the intent by this strike force (Flaggy) to withhold receipts of exhibits seized for an improper purpose; and (iv) Documents attached to subpoenas served on Commissioner of Police on 12 October 2015 and on 28 June 2017, including the appellant's instructions. (b) Counsel failed to comply with instructions to press for the production of documents sought in the subpoena served on Commissioner of Police on 28 June 2017 or to make further enquiries. (c) Counsel failed to seek relevant directions as instructed by appellant, including: (i) Counsel failed to follow written instructions and seek that her Honour directs the jury on the conflict in evidence between the two case theories as they are not alternate case theories. (ii) Counsel failed to tender the statement made by Ms Antonia Fantakis during the argument to exclude the 5 o'clock theory from the jury's consideration. (iii) Counsel failed to follow written instructions in relation to the jury ballot argument. (d) Legal representatives failed to follow instructions to research information with regards to exhibit AA (Georges River Note) to corroborate the appellant's defence that this note was part of an instruction attached to a spiritual healing incantation. Evidence at trial 1. It is necessary (particularly in light of the unreasonable verdict ground of appeal – ground 3) to summarise in some detail the evidence adduced at the trial. Background 1. Mr and Mrs Karmas had lived in a house at 32 Warwick Street, Punchbowl since a few months after their marriage in December 1985. As at the date of Mr Karmas' disappearance (11 August 2011), Mr and Mrs Karmas lived there with their two children, Rebecca and Sarah. 2. At 34 Warwick Street, Punchbowl, there was a property which was owned and occupied by members of the Fantakis family. The Fantakis property was redeveloped in about 2006 into two duplexes (34A and 34B Warwick Street), one of which (34A) was sold but the other (34B) (which will be referred to in these reasons as the Warwick Street Duplex) was jointly owned by the applicant and his now deceased identical twin brother, Nicholas Fantakis. 3. In late 2007, Nicholas Fantakis commenced a relationship with Maria Angeles and, from about March or April 2008 until some time in early to mid 2011, the couple lived together at the Warwick Street Duplex. Nicholas Fantakis ceased living at that address some time before 27 May 2011. Ms Angeles continued living there until 23 June 2011. 4. The applicant's mother, Antonia Fantakis, lived in a property at Wilga Street, Punchbowl (which will be referred to in these reasons as the Wilga Street Property) (this being the place at which the Crown contended that Mr Karmas was murdered by the applicant). When Nicholas Fantakis left the Warwick Street Duplex, he moved in with his mother at the Wilga Street Property. Property dispute between Nicholas Fantakis and Ms Angeles 1. By early May 2011, following the breakdown of the relationship between Nicholas Fantakis and Ms Angeles, there was a dispute between them as to whether Ms Angeles was entitled to continue to reside at the Warwick Street Duplex and as to debts allegedly owed by Nicholas Fantakis to Ms Angeles because of investments she had made in their failed automotive business. Each retained a lawyer and correspondence was exchanged between the lawyers on about 11 May 2011 in relation to the dispute. Death of Nicholas Fantakis 1. On 27 May 2011, Nicholas Fantakis committed suicide by hanging himself in a room at the Wilga Street Property. As will be noted in due course, the applicant did not accept that his brother had committed suicide and formed the firm belief that his brother had been murdered (and that Mr Karmas was involved in, or the leader of, a group of people that had murdered him). 2. Senior Constable Nathan Simpson, who gave evidence at the trial, attended the scene of Nicholas Fantakis' death on 27 May 2011 and prepared a report to the Coroner in relation to it. Senior Constable Simpson gave evidence that he was approached by the applicant in the weeks after the death and that the applicant appeared to him to find it hard to accept that his brother had taken his own life. Funeral for Nicholas Fantakis 1. After Nicholas Fantakis' death on 27 May 2011, there was a dispute between the applicant and Ms Angeles both as to the distribution of Nicholas Fantakis' estate and as to the arrangements regarding his funeral and burial. The dispute was such that Ms Angeles arranged to have a bodyguard accompany her to Nicholas Fantakis' funeral. It was not in dispute at the trial that Mr Karmas became involved to some extent as a mediator or intermediary between the applicant and Ms Angeles. (It was the Crown case that the applicant came to resent Mr Karmas' involvement in his dispute with Ms Angeles.) Incident on 8 June 2011 at the Warwick Street Duplex 1. A number of witnesses gave evidence at the trial in relation to an incident on 8 June 2011 when the applicant and some other persons were observed by Mr Karmas to have entered the Warwick Street Duplex and removed numerous items of property (said to belong to Nicholas Fantakis). Ms Angeles reported the incident to the police and informed police that Mr Karmas had witnessed it. Senior Constable Southall, who gave evidence at the trial, responded to that report. 2. Senior Constable Southall gave evidence that she spoke to Mr Karmas and that he identified the applicant as having been responsible for the intrusion; and that, after speaking to the applicant by phone in her presence, Mr Karmas provided the applicant's mobile number to her. No charges were laid in relation to the incident. The police formed the view, after making further enquiries with both Ms Angeles and the applicant, that it was a civil matter. (It was the Crown case that this incident was the source of some animus by the applicant towards Mr Karmas.) 3. One of those present on 8 June 2011 was Ms Amara Mantas, the then teen-aged daughter of Ms Patricia Mantas (the applicant's then partner). Ms Amara Mantas gave evidence in the trial and, in the course of cross-examination by the Crown Prosecutor (with leave), Ms Amara Mantas agreed that she had told police that she recalled the applicant being angry that Mr Karmas was there and that, after Mr Karmas left, the applicant said to her "I don't really like him" and "He's just over here snooping". Ms Amara Mantas agreed in her oral evidence that in telling that to the police she had told the truth. The applicant admitted in evidence that he had referred to Mr Karmas being "nosy" but said that he did not recall having said that he did not like Mr Karmas. Evidence of threats made by applicant towards Mr Karmas 1. There was evidence at the trial about threats having been made by the applicant towards Mr Karmas. 2. Mr Karmas' brother (Mr George Karmas) gave evidence that, some time after the funeral of Nicholas Fantakis, Mr Karmas spoke to him about property having been removed from the Warwick Street Duplex and that Mr Karmas said to him that he had told the police about it. Mr George Karmas gave evidence that, some time later, Mr Karmas told him that the applicant had come to his front door and said "I will bury you alive if you say anything more to the police"; to stay out of it; and that he (Sam) would regret what he did. Mr George Karmas said that he asked his brother Sam to organise a meeting between himself and the applicant; and that, a week or two later, he spoke to the applicant outside the Warwick Street Duplex in the presence of both Mr Karmas and Mr Cheong. Mr George Karmas' evidence was that he asked the applicant whether he had threatened to kill his brother (i.e., Sam) because he had cooperated with police; and that the applicant did not reply and turned around and walked back into the property. Mr George Karmas said that, after they had left, Mr Karmas told him (George) that he felt sorry for the applicant, who had a "lot on his plate". 3. Mr George Karmas gave evidence that he told police about the threat after Mr Karmas' disappearance when he (George) was at the Karmas house on 12 August 2011; and Mr George Karmas confirmed that a statement, which he had prepared at the Karmas house and faxed to police on 12 August 2011, included the details of the threat that Mr Karmas had reported to him. 4. Another witness, Mr Khaled Charawani, a close friend of Mr Karmas, gave evidence that he and Mr Karmas would go for walks together during which they would talk; and that Mr Karmas told him that his neighbour's son had committed suicide and about a family dispute that had arisen. Mr Charawani gave evidence that, about a couple of weeks before Mr Karmas' disappearance, as they were walking along a particular stretch of Salt Pan Creek, Mr Karmas told Mr Charawani that the twin brother of the neighbour who had died (i.e., the applicant) had threatened "to knock me off"; and that, when Mr Charawani asked Mr Karmas what he meant, Mr Karmas said "He threatened to kill me". Mr Charawani gave evidence that Mr Karmas told him that the threat was delivered in the course of Mr Karmas acting as a "go-between" between the twin brother (i.e., the applicant) and the girlfriend of the deceased (i.e., Ms Angeles). 5. There was also evidence from Mr Karmas' sister (Mary Dunsmore) that Mr Karmas had visited her home a few days before his disappearance and appeared "worried"; and that when she asked him if everything was all right, Mr Karmas mentioned Terry (the applicant) and his brother and, grabbing his forehead, said "It's all a big headache". Mr Glenn Dunsmore (Mary Dunsmore's husband) gave evidence that he understood from Mr Karmas that the applicant had taken offence to Mr Karmas' involvement in the dispute between Ms Angeles and the Fantakis family. Text messages 1. The Crown relied on the following two text messages that were recovered from the SMS inbox of one of two mobile phones found in the kitchen of the applicant's home at the Wilga Street Property, as demonstrating (together with other evidence – see below) that the applicant had the belief (before Mr Karmas' disappearance) that Mr Karmas was involved in his brother's death: 26.6.11 It's not over yet, but we're gonna get 'em. They are not going to get away with it. HE'S NOT GOING TO GET AWAY WITH IT! 8.7.11 Stop doing work at zorba's and I'll be there whenever you want. If we're going to do this thing for nick then i don't want you doing anything else just as i can't. 1. It was the Crown case that the messages concerned the applicant's belief that Mr Karmas was involved in his brother's death. 2. The applicant admitted in evidence that he received each of those messages but he denied that they related to Mr Karmas. The applicant said that the first related to Ms Angeles and her solicitor, David Leamey; and that the second was connected to the fact that his brother had been engaged in the cultivation of cannabis at the Wilga Street Property and a property at Peats Ridge. 3. The Crown points out that the applicant's evidence at trial as to the receipt of those messages was inconsistent with the applicant's earlier denial that the phone used to receive the messages was his telephone. In particular, the Crown notes that, in the video of the execution of a search warrant at the Wilga Street Property on 14 August 2011, the applicant tells the police that: the phone was not his; he had no idea who it belonged to; and it may have belonged to a labourer or been left at the house by his brother. Request for inquest into Nicholas Fantakis' death 1. Senior Constable Simpson (who as noted above had attended the scene of Nicholas Fantakis' death on 27 May 2011 and had prepared a report to the Coroner) gave evidence that some time prior to 2 August 2011 the applicant informed him that he and his mother wanted an inquest to be held into the death of Nicholas Fantakis. Senior Constable Simpson completed paperwork in connection with that request in which he recorded, inter alia, that the applicant and his mother did not believe that Nicholas would commit suicide at his mother's unit and that the applicant was not satisfied that Nicholas tied the rope because of the particular knot that was used (see Ex 6F). (See also the applicant's later document entitled "Complaint to the Coroner", dated 28 March 2012 (Ex 17F).) 11 August 2011 – disappearance of Mr Karmas 1. The Crown relied on the circumstances in which Mr Karmas left his family home on 11 August 2011 (see below) as suggesting that, when he left, he was not intending to go far; as well as Mr Karmas' uncharacteristic failure to honour social and work commitments he had made for later the same day and the following day, as demonstrating that something happened to him on 11 August 2011 that prevented him from honouring those commitments. 2. It is important to put into context the timeline of events on that day. Morning of 11 August 2011 • Evidence of Mrs Karmas 1. Mrs Jenny Karmas last saw her husband at about 8.15am on 11 August 2011 when she left for work. Mrs Karmas gave evidence that Mr Karmas had been doing work for Mr Peter Ikonomou (a long standing friend of Mr Karmas and also his dentist) in Ashbury earlier that week and that Mr Karmas told her that he was not going to work at Peter's that day because he had to order some materials. Mrs Karmas kissed him goodbye; and gave evidence that he said "Have a lovely day, darling". Mrs Karmas gave evidence that her husband appeared to be fine. • Evidence of Ms Rebecca Karmas 1. Ms Rebecca Karmas, one of the couple's two daughters, gave evidence that, on the morning of 11 August 2011, Mr Karmas seemed fine and she recalled him being "almost jovial, making a bit of a joke" as she left for work. • Evidence of Ms Sarah Karmas 1. The other of the couple's two daughters (Ms Sarah Karmas) gave evidence that she saw Mr Karmas in the kitchen at their Warwick Street home some time after 8.30am. Ms Sarah Karmas gave evidence that she had breakfast and returned to her bedroom to study; and that, as she studied, she saw her father come and go from the front door, doing gardening; and that, later in the morning, she saw him in the backyard working on his ute, putting tools away. • Evidence of Mr George Karmas 1. Mr George Karmas (Sam's brother) gave evidence that Mr Karmas called him on the morning of 11 August 2011 and invited him for breakfast. Mr George Karmas said that he agreed to attend but that he received call from a Dr Girgis about a personal matter which caused him to have to go to Town Hall in the city. Mr George Karmas said that he spoke to Mr Karmas again as he was on the train travelling into the city; and that he told Mr Karmas that he would see him between 2 and 4pm. Mr George Karmas ultimately got caught up in different meetings and did not end up meeting Mr Karmas. Mr George Karmas' evidence is that he did not leave the city until about 4pm, when he returned to Bankstown to collect his car before driving to Ultimo. While he was in Bankstown, Mr George Karmas collected two women who accompanied him to a meeting in Ultimo. Mr George Karmas gave evidence that, because he was pressed to go to Ultimo, his arrangement with Mr Karmas slipped his mind (something he described as "the worst tragedy that I ever did"). (Interposing here, on the Crown's primary case, Mr Karmas was already dead by 4pm on 11 August 2011.) Around midday on 11 August 2011 1. Ms Josephine Chahine (a neighbour) gave evidence that Mr Karmas knocked on her door (at 30 Warwick Street) some time before 12pm on 11 August 2011; that they had a short conversation about when her husband was due to return from overseas; and that Mr Karmas appeared normal. The exchange between Ms Chahine and Mr Karmas was witnessed by Mr Neil Jones who recalled it as having taken place at about 11am. 2. At 12.03pm, Mr Karmas called the mobile phone of the applicant. The applicant later told police that Mr Karmas told him that he had noticed him working across the road and offered to lend a hand. The timing of this call is confirmed by telephone records (see Ex J). (Between the time of that call and 1.31pm, there were seven telephone calls and two text messages between the applicant and his co-accused, Mr Woods.) 3. Mr Charawani (as noted above, a close friend of Mr Karmas) gave evidence that Mr Karmas called him at about 12.05pm on 11 August 2011 and said that he was going to go for a quick walk. They arranged to meet later that afternoon to go for a walk. Exhibit J shows that a call was made from the Karmas landline to Mr Charawani's mobile phone at 12.05pm. Mr Charawani's evidence is that he had to get a blood test and go to the shops, and that he returned home after completing those errands "probably midday or after midday" but that Mr Karmas did not come around later as arranged. 4. Ms Sarah Karmas gave evidence that, at about 1pm on 11 August 2011, she went into the kitchen to have lunch; that Mr Karmas was there, making a sandwich, and that he appeared normal. Ms Sarah Karmas gave evidence that they had a conversation about a date; and that, after lunch, she returned to her bedroom to continue studying and get ready for work. The last time Ms Sarah Karmas saw her father was when they finished having lunch together at about 1.20pm. Sighting of Mr Karmas by Ms Nafla Rifai 1. Mr Charawani's mother, Ms Nafla Rifai, who was unavailable to give evidence at the trial, made a police statement, dated 14 August 2011, which was read by consent at the trial. Ms Rifai was 73 years old at the time she made her statement and lived at 23-25 Warwick Street. Ms Rifai said in her police statement that: …The last time I saw Sam was on Thursday 11 August 2011 around 2 to 3pm. At the time I was standing at the door of my back yard which is on the side of my house on Lancaster Avenue… On this afternoon I was looking down the street towards Sam's house and I could see Sam standing out the front of a new two-storey house on Lancaster Avenue just across the road from Sam's house. At the time Sam was standing with two to three other men out the front of this two-storey house. The other men were about Sam's height, but I cannot remember anything they were wearing. They looked to be of Mediterranean background similar to Sam. Out the front of the two-storey house is a bus stop with a bench. Sam and the men were standing on the furthest side of the bench travelling down Lancaster Avenue away from me. I could see Sam and the men were talking to each other. The men appeared to be wearing normal clothes. I cannot remember exactly, but I think they were wearing casual clothes. I cannot remember if any cars were parked out the front of the two-storey house when I saw Sam. The house I saw Sam out the front of is where a young boy lived with his Asian girlfriend. I did not know either of them, but I do know the boy's mother, Antonia. The young boy recently hung himself, about two or three months ago, at his mother's house located in a different street… 1. The house there described by Ms Rifai must be the Warwick Street Duplex (where Nicholas Fantakis had lived with Ms Angeles prior to his suicide at the Wilga Street Property). 2. Detective Senior Constable Nolan gave evidence at the trial that she spoke to Ms Rifai in Arabic on the afternoon of 14 August 2011; and that Ms Rifai told her that she last saw Mr Karmas on the day he went missing and that he was standing outside the new townhouse. Detective Senior Constable Nolan's evidence was that Ms Rifai said that "He was surrounded by other men, even though it's far away from here I could still tell it was Sam standing there, I know Sam, we are like family". Detective Senior Constable Nolan gave evidence that she asked Ms Rifai to describe the other men with Mr Karmas but that she did not recall that Ms Rifai gave her a specific description of them. Detective Sergeant McGee gave evidence that the distance at which Ms Rifai made those observations was between approximately 50 to 60 metres (see T 2274.34-40). 3. CCTV footage taken outside the Jus Tiles store (at the corner of Wilga Street and Punchbowl Road) at 2.12pm (Ex 20F) showed three males. However, when it was suggested to the officer in charge, Detective Sergeant McGee (who at the time of the investigation was a detective senior constable attached to the homicide squad), that Ms Rifai's observation of two to three males with Mr Karmas who "looked to be of Mediterranean background" might have some connection to the three males shown in the CCTV footage, Detective Sergeant McGee gave evidence that the males were identified as the proprietor of the store (Jack Nassif) and two customers. 4. It was the Crown case that Ms Rifai's evidence was not inconsistent with Mr Karmas having been engaged in conversation outside the Warwick Street Duplex with the applicant and Mr Cheong prior to them leaving to go to the Wilga Street Property (the Crown noting the distance at which the observations were made). The applicant disputes this. Around 2pm – Mr Karmas travels to the Wilga Street Property in the applicant's van 1. It was not disputed that, shortly before 2pm on 11 August 2011, Mr Karmas travelled with the applicant and Mr Cheong in the applicant's blue Ford transit van from the Warwick Street Duplex to the Wilga Street Property. (Pausing here, this would be consistent with Ms Rifai having observed Mr Karmas with the applicant and Mr Cheong slightly earlier than the earliest of the range that she had estimated but not, of course, consistent with the recollection that the men were of Mediterranean appearance.) 2. The CCTV footage obtained from outside Jus Tiles showed the applicant's blue Ford Transit van turn left onto Wilga Street from Punchbowl Road at 1.52pm on 11 August 2011. Other than Ms Rifai's account that she saw Mr Karmas outside the Warwick Street Duplex between 2 and 3pm on 11 August 2011, there was no further sighting of Mr Karmas after he went to the Wilga Street Property in the applicant's blue van with the applicant and Mr Cheong. Telephone records 1. Telephone records showed that there was no phone activity recorded for mobile phone services used by the applicant between 1.33pm and 3.21pm on 11 August 2011; and that calls to the applicant's phone at 1.43pm, 1.44pm, 2.14pm and 2.40pm on that day were unanswered (see T 2103.43-2104.9; see also Ex J). There was also nil phone activity recorded for mobile phone services used by Mr Woods between 1.33pm and 3.30pm on 11 August 2011 (see Ex J). 2. There was nil phone activity recorded for the mobile phone and landline of Mr Karmas over the same period (see Ex J). As noted above, calls were placed from the Karmas landline to the applicant and Mr Charawani at 12.03pm and 12.05pm, respectively. No further activity is recorded for those services until 3.57pm when the mobile phone of Mr Karmas was used to send the first of four text messages to Ms Angeles (see below). 3. As to the possibility that Mr Karmas left the Wilga Street Property on foot some time after he arrived at or about 1.52pm on 11 August 2011 (as the applicant contended and as Mr Cheong told police), Detective Sergeant McGee gave evidence that she had reviewed the CCTV from Jus Tiles between 11 August 2011 and 13 August 2011 and that Mr Karmas was not seen on the footage (see T 2274.14-22). Around 3pm on 11 August 2011 1. The applicant's blue Ford transit van was recorded on CCTV footage travelling at 3.09pm in the opposite direction (to that in which it had been travelling at around 2pm) down Wilga Street towards Punchbowl Road. The vehicle turned left into Wilga Street from Punchbowl Road at 3.25pm (see Ex CO). 2. Two witnesses, Robert Najdanovic and Kerrie Horton, each gave evidence that Mr Cheong returned home at about 3.30pm or 4pm that day (see T 376.21; T 389.36). 3. Meanwhile, at 3.15pm, Ms Sarah Karmas left for work. Her evidence is that she was running late and left via the back door and back gate. Ms Sarah Karmas did not see her father but assumed he was home because the radio was on, his ute was parked at an angle with the toolboxes open and the shed was open. Ms Karmas gave evidence that she yelled out "See you later, I am going to work". Text messages from Mr Karmas' phone between 3.57pm and 5.26pm 1. Four text messages were sent between 3.57pm and 5.26pm from Mr Karmas' mobile phone to Ms Angeles' mobile phone (see Ex J; see also the evidence of Sergeant Dennett who compiled Ex J at T 1028.9-1029.12): 3:57:45pm looks like we have been found out. We need to talk , ill let you know when im almost there 4:54:43pm Im near your old workplace where are you? 4:58:15pm Im here waiting 5:26:16pm I cant wait any longer i have to go see someone about our situation. Ill fill you in later 1. Just after the first of those messages, at 4.05pm, a message was sent from Mr Karmas' mobile phone to that of the applicant. The applicant told police that the message was that Mr Karmas could not come back and that he would catch up with him (the applicant) tomorrow (see Ex J). 2. Enquiries made by the police on 13 August 2011 with Vodafone in relation to the last cell location of Mr Karmas' mobile number (including a request for triangulation, i.e., the location of the phone when it was last connected to the mobile network) disclosed that Mr Karmas' mobile phone was last connected to the mobile network at 5.26pm on 11 August 2011; and that, at that time, the mobile phone connected to the network via a cell tower in Wentworthville. (A map setting out the dominant coverage area of that cell tower was part of Ex BQ at pages 43-44.) A Vodafone engineer, Rupinder Mahli, gave evidence that it was "highly likely" that a call made from within the dominant coverage area of a particular cell tower would go to that cell tower (see T 1536.47). 3. It was the Crown case that the four messages sent to Ms Angeles' phone and the message sent to the applicant at 4.05pm were not sent by Mr Karmas; rather that they were sent by Mr Woods on the instructions of the applicant. In support of that contention, the Crown relied on the following matters. 4. First, the evidence of Mrs Karmas and Mr George Karmas that the content of the messages was inconsistent with how Mr Karmas sent messages, namely that he preferred to call rather than send text messages because he was not good with technology and tended to abbreviate because he typed with only one finger (see, for example, T 153.8-15; T 344.22-29). Second, the evidence that it would have been very difficult for Mr Karmas to have read and sent the messages without his glasses (which the evidence suggested that he did not have with him – since one pair of his prescription glasses was found at the Karmas home and another pair was found in the glovebox of the applicant's blue Transit van). Third, the unchallenged evidence of Ms Angeles that the last time she saw or spoke to Mr Karmas was on 23 June 2011, the day she moved out of the Warwick Street Duplex (T 444.14). 5. The fourth matter relied on by the Crown in this context was the location of Mr Karmas' phone when it was last connected to the network at 5.26pm (the Wentworthville cell), that being consistent with the actual sender of the message operating under a mistaken belief that Ms Angeles worked or had worked at Westmead Hospital. The applicant acknowledged in evidence that, as at 11 August 2011, he held such a belief and had referred to it in Ex CJ (p 4). 6. Fifth, that the content of the first text message appeared to suggest that Mr Karmas and Ms Angeles were engaged in an affair – a proposition rejected as fanciful by all other relevant witnesses and denied by Ms Angeles but which accords with the suggestion made by the applicant when interviewed by police on 13 August 2011 (namely, that "maybe he's found a little floozy") and with similar comments in other conversations and documents tendered in the trial (see Ex AX at 471-472; see also Ex CS at p 32). 7. Finally, the conversation recorded on a listening device between the applicant and Mr Woods on 26 November 2011 (referred to below) in which the applicant said to Mr Woods that "he" (in context clearly a reference to Mr Karmas) "was fucking Maria" and that, when Mr Woods asked whether that had come out yet, the applicant said that it would because "the phone does magic things" (see Ex CS at pp 24-25). The Crown contended that those admissions demonstrated an awareness by the applicant of the content of the text messages to Ms Angeles, consistent with them having been sent with the applicant's knowledge and at his behest. Mrs Karmas and Rebecca Karmas return home about 5.30pm 1. Mrs Karmas and Ms Rebecca Karmas each arrived home from work at about 5.30pm on 11 August 2011. Each gave evidence that, when she entered the house, she noticed that the radio was on, that Mr Karmas' ute was parked across the driveway (not in its usual position) and that the toolboxes affixed to the back of his ute were open (see T 141.34-43). The back door of the house was closed but unlocked and the kitchen windows were open. Various witnesses (including Mrs Karmas – see T 141.49) gave evidence that Mr Karmas was meticulous with his tools and would not leave the toolboxes open if he had left the property (which the Crown relied on as demonstrating that Mr Karmas had not intended to go far). 2. Mrs Karmas opened the door to the backyard and called out to her husband, believing him to be at home. When Mrs Karmas later realised that Mr Karmas was not in the backyard, she thought that he may have gone to visit a neighbour (see T 142.10-20). Mrs Karmas gave evidence that she noticed that her husband's wallet was sitting on the kitchen bench (see Ex C and Ex BA), and next to Mr Karmas' wallet was a glasses case with a pair of his prescription glasses inside. A further pair of glasses belonging to Mr Karmas was located in the glove box of the applicant's blue Ford transit van (as noted above). 3. Later that night, Mrs Karmas found Mr Karmas' keys on one of his toolboxes and noticed that the shed door had also been left wide open. Mrs Karmas' evidence was that those keys were the only set of keys that Mr Karmas had, and included keys for the house, his ute and the toolboxes. Mrs Karmas tried unsuccessfully to call her husband's mobile throughout the night (see T 146.8-28). 12 August 2011 1. When Mr Karmas still had not returned home the following morning, Mrs Karmas called Mr Karmas' sister (Mary Dunsmore) at about 6.30am and also Mr Karmas' brother (Mr George Karmas). Mrs Karmas then went to all of their neighbours and asked whether anyone had heard from Sam; and she called a number of contacts that she found in Mr Karmas' diary. Mrs Karmas notified police that her husband was missing shortly thereafter (see T 146.47-148.44). 2. At about 9am on 12 August 2011, Mrs Karmas called the applicant by phone and asked him whether he had seen Mr Karmas. Mrs Karmas' evidence was that the applicant told her that Mr Karmas had been there (i.e., at the Warwick Street Duplex) on the 11th, helping to move some furniture and fix the locks. Mrs Karmas' evidence is that the applicant told her that at about 2.30pm Mr Karmas told him (the applicant) that he (Mr Karmas) had to go somewhere; that the applicant offered Mr Karmas a lift, which Mr Karmas had declined; and that Mr Karmas left on foot from the Warwick Street Duplex. (It should be noted that the account that Mrs Karmas said the applicant gave her is inconsistent with the undisputed evidence at trial that Mr Karmas had travelled with the applicant and Mr Cheong to the Wilga Street Property shortly before 2pm – see below.) Mrs Karmas' evidence was that the applicant told her that he had received a message from Mr Karmas at 4.05pm saying that he was unable to come back and that he had something to do or somewhere to be (see T 148.11-37). 3. Mrs Karmas' evidence was that she spoke to the applicant again about 20 minutes later in the company of Mary and Glenn Dunsmore when the applicant pulled up across the road at the Warwick Street Duplex. Mrs Karmas' evidence was that the applicant told her that Mr Karmas had left his tools behind (at the Warwick Street Duplex) and offered to return them to her; that as Mr Cheong went to get the tools, Mrs Karmas asked the applicant if he saw which way Mr Karmas went when he left ("this way or this way", indicating with her hands); and that the applicant replied "Oh, I didn't see which way he went, I was inside" (see T 149.2-150.3). Mrs Karmas' evidence in relation to that conversation with the applicant was supported by that of Mary Dunsmore. 4. As noted above, it was not in dispute at trial that, shortly before 2pm on 11 August 2011, Mr Karmas travelled with the applicant and Mr Cheong from the Warwick Street Duplex to the Wilga Street Property in the applicant's blue Ford transit van. It was the Crown case that the applicant's statements to Mrs Karmas, first by phone and later in person, that Mr Karmas had left on foot from the Warwick Street Duplex were lies told out of a consciousness of his own guilt. Mr Ikonomou's evidence 1. Peter Ikonomou had known Mr Karmas for 20 years and was both his friend and dentist. Mr Ikonomou gave evidence that Mr Karmas had worked at his house from Monday, 8 August 2011 until Wednesday, 10 August 2011; and that Mr Karmas told him that he would return to continue the work on Friday, 12 August 2011 if the materials he had ordered were ready (see T 556.4-36). 2. The Crown notes that the evidence of Mr Ikonomou and Mrs Karmas that Mr Karmas had worked at Mr Ikonomou's house earlier in the week and intended to return to complete the work he had started but required materials was further supported by an order to Universal Roofing for materials which was found on the fax machine in the Karmas home (Ex F) and Ex J, which shows contact from the Karmas landline to the phone and fax numbers of Universal Roofing at 10.52am and 10.57am on 11 August 2011, respectively. Character evidence 1. The Crown relied on character evidence of various witnesses to demonstrate that it was out of character for Mr Karmas to leave his home and family unannounced and not return; and contended that something must have happened to him on 11 August 2011 that prevented him from doing so. 2. Mrs Karmas described her husband as "a wonderful husband and father, a family man. He was generous. He was kind. He loved helping other people" (see T 141.2-4). Her evidence was that he had never stayed out all night and not returned until the next day; and that he was a devoutly religious man. Mr George Karmas described his brother as someone who took care of everything and everyone and said that "he put God first, his family second, his friends and the world I guess third and himself last" (see T 342.34-35). Mr Ikonomou described Mr Karmas as a "9 to 5 guy, a man of routine, reliable, very friendly" and said that he was a guy who was always concerned about things, like trying to help people (see T 554.32-35). The disposal of the body of Mr Karmas 1. It was the Crown case that, between 1am and 4.36am on 12 August 2011, the applicant disposed of the body of Mr Karmas with the assistance of Mr Woods. The timeline in this regard is as follows. 2. At 6.28pm on 11 August 2011, the applicant's blue Ford transit van was recorded on CCTV footage travelling up Wilga Street and turning right onto Punchbowl Road (see Ex CO; T 2040.22). 3. At 8.40pm, the applicant's blue Ford transit van and Mr Woods' white van were recorded on CCTV footage travelling west in convoy through the M5 Hammondville tollgates (Ex BR). Some time around then, the applicant and Mr Woods arrived at the home of Mr Woods' grandmother, Ms Annie Robinson. 4. As at August 2011, Ms Robinson lived in a unit on Dan Street, Campbelltown. Ms Robinson gave evidence that Mr Woods and the applicant arrived at her home at about 8.30pm or 9pm on 11 August 2011. Ms Robinson had met the applicant "a few times" before (see T 586.2). Ms Robinson's evidence is that they chatted and watched TV as she crocheted; and that she could not remember precisely when Mr Woods and the applicant left because she did not look at the clock but said it was "maybe 1 o'clock, 2 o'clock" (see T 586.20). 5. An intercepted telephone call (Ex L) between the applicant and Mr Woods at 4.01pm on 1 September 2011, recorded Mr Woods telling the applicant that "nan's fucked up with the story again" and that she told them (i.e., the police) that they left there at 1 o'clock. The applicant responded to this that "Nah, she was asleep, how could she know what time I left" and "She crashed at fuckin' eleven man". Mr Woods said, "Yeah, that's what I said to her! I go, 'Didn't you say that!'" and said that "Cause she's fucked us! She fucked me… and she's fucked you" and discussed the two of them confronting his grandmother about the account she had given to police. 6. The two vans, again travelling in convoy, were next recorded at 4.36am the following morning travelling east through the tollgates at Hammondville (Ex BR). Conduct of the applicant on 12 and 13 August 2011 1. Some time between 4.46am and 6.50am on 12 August 2011, the applicant left his blue Ford transit van parked and locked in the driveway of Precision Mechanics on Belmore Road, Punchbowl. Some time later, the applicant contacted the mechanic, Vince Spoto, by phone, to report various faults with the vehicle: transit stalling, possible fuel pump issues, no air to the windscreen, jumps out of park. Mr Spoto gave evidence that, upon an examination by the mechanic, little was found to be wrong with the vehicle; and that he road-tested the vehicle and did not notice any issue with it jumping out of park (see T 913.44-914.1). 2. When asked if he had noticed any unusual smells in the vehicle, Mr Spoto initially said there was an indication of possibly bleach but later said that he could not be sure whether it was that date (12 August 2011) or another date that he had smelt bleach in that vehicle (see T 917.1). Mr Spoto agreed that, as he told the police on 15 August 2011, he did not notice any unusual smells in the vehicle and the vehicle did not have a vomit smell in it (relevant in light of the applicant's statements to others – see below at [86]-[88]). The applicant collected the vehicle that afternoon, having paid for the service in cash. Mr Spoto said that it was unusual for the applicant to leave the vehicle at his shop without prior arrangement (see T 918.23). 3. It was the Crown case that the applicant took his vehicle to the mechanic unannounced because he did not want to take it home because of what may or may not have been in the back of it. 4. Sometime after 4pm on 12 August 2011, the applicant attended the Warwick Street Duplex. Constable Lees, who attended the premises after noticing that the front door of the duplex was open (and who was one of two officers who had attended at the Karmas residence in response to the report by Mrs Karmas that Mr Karmas was missing), gave evidence of a conversation with the applicant. Constable Lees' evidence is that the applicant told her that Mr Karmas had helped him fix some doors at the Warwick Street Duplex the previous day, that he had accompanied him to the Wilga Street Property between 2.30pm and 3pm to drop off some furniture and that he had received a message from Mr Karmas at 4.05pm (see T 604.37-605.31). As Constable Lees was speaking to the applicant, Mr George Karmas started yelling at the applicant and accused the applicant of having been involved in his brother's death, which the applicant denied (see T 606.14-35). 5. The applicant attended Bankstown Police Station in the company of his mother at about 10.45pm on 12 August 2011, where he spoke to Detective Senior Constable Haggerty. Her evidence is that the applicant told her that he had contacted his QC who told him that he should come down to the station, talk to police and give them his alibi if necessary; and that, when asked why he would need an alibi, the applicant said "I guess because of what Sam's brothers were saying" (referring to the confrontation that had occurred in Warwick Street with Mr George Karmas – see at T 1079.30). The applicant gave an account of his interaction with Mr Karmas on 11 August 2011, saying that "Sam is my friend, we help each other all the time, he was just helping me yesterday fixing doors and moving some furniture. See I hurt my hand" (see at T 1079.47-50). Detective Senior Constable Haggerty said that the applicant held up his hand and she noticed a circular sore on his palm that was about the size of a 50-cent piece. The same wound was described by Detective Sergeant Stamoulis as "a healing wound, a little bigger than a ten cent piece and a scab had already begun to form" (see T 1390.39). 6. On the morning of Saturday, 13 August 2011, the applicant called Demetrious Vranas, the owner of the Riverwood Quality Meats butcher's shop. Mr Vranas said that the applicant said "My dog spewed in the back of the car, can I use the shop to hose it out?" and Mr Vranas agreed. Mr Vranas' evidence was that the applicant had never previously used or asked to use Mr Vranas' shop to clean a vehicle (see T 562.48-563.18). Mr Vranas attended the shop at about 2pm and he saw the applicant cleaning his van (in the company of another person, who the applicant later identified was Mr Woods). Mr Vranas said that, after he was finished, the applicant came into the shop and asked for a bag of bones for his dog (T 568.7). 7. Mr Angelakis, an employee of the shop who was working when the applicant (and Mr Woods) arrived, gave evidence that the applicant told him that his dog had vomited in the back of the van. Mr Angelakis said that he gave the applicant a broom and told him that there was a bottle of White King (bleach) which he could use if he needed it (see T 581.2-11). 8. At 10pm on 13 August 2011, the applicant and Mr Cheong were travelling in the applicant's blue van along Moorefields Road, Croydon, when it was stopped by police. One of the officers involved in the vehicle stop, Detective Senior Constable Delaney, gave evidence that he noticed a strong odour coming from the vehicle which he believed to be bleach or some other cleaning agent and that, when asked why his vehicle smelt like bleach, the applicant replied that it was "Because I had my dog in the back of it and it was sick. It needed to be cleaned, which I just did" (see T 930.40). The other officers present at the stop made similar observations as to the smell coming from the vehicle. 9. The Crown notes that, despite having told a number of persons that it was his dog that had vomited in the van including the police who interviewed him on 13 August 2011 and that "it reeked", the applicant later gave evidence that it was "a dog that I picked up from a friend a week or so earlier" (see T 2315.9-14). Further, the Crown notes that Mr Spoto did not notice a vomit smell in the vehicle when he serviced the van on 12 August 2011. 10. The Crown also relied on evidence regarding renovation work done to bedroom 2 at the Wilga Street Property on 12 and 13 August 2011. Mr George Katakis, a friend of the applicant, gave evidence that he attended those premises some time after 2.57pm on 13 August 2011 where he observed the applicant putting putty on the ceiling; and he said that a young Asian labourer (Mr Cheong) was also present. Mr Katakis accompanied the applicant to the Warwick Street Duplex where they collected some paint before returning to the Wilga Street Property. Mr Katakis said that he left not long after 6.42pm when he ordered pizza. He said that he gave the applicant a hand by sweeping but did not otherwise participate in the work that was being done (see T 404.38-405.50). 11. During a crime scene examination conducted at the Wilga Street Property between 14 and 18 August 2011, it was noted that bedroom 2 appeared to be in a state of renovation and that none of the other rooms appeared to be in the same state, with the exception of some tiles missing from the bathroom wall. There was evidence from various police officers who participated in the execution of a search warrant at those premises commencing at 2.50am on 14 August 2011. Senior Constable Coelho gave evidence that bedroom 2 appeared to have been freshly painted and that parts of the walls and an area on the ceiling appeared to have been patched (see T 1268.3; T 1270.33-1271.11). Detective Senior Constable Velisavlejic gave evidence that it appeared to him that the room had been freshly painted and that he could smell paint (see T 1284.49). 12. It was the Crown case that the timing of the work (and the fact that it was confined to bedroom 2 of the Wilga Street Property) was consistent with the murder having taken place in that room on 11 August 2011. Furthermore, the Crown argued that the fact that the applicant was able to perform the work on those dates undermined his evidence that he genuinely required the assistance of Mr Karmas (and Mr Cheong) to load items of furniture into his blue van and unload it at the Wilga Street Property on 11 August 2011. Crime scene examination – Wilga Street Property 1. It was not in dispute at the trial that no forensic evidence consistent with having originated from Mr Karmas was located at the Wilga Street Property. 2. Crime scene examinations were conducted at the Wilga Street Property on three occasions: between 14 and 18 August 2011, on 6 September 2011 and on 2 May 2013. 3. Photographs taken during the first of those examinations were tendered and marked Ex AO and Ex AP. The first examination included a fingerprint examination (see the results set out in Ex BM). Fingerprints located at the Wilga Street Property included those of the applicant, Antonia Fantakis and Mr Woods. None of the fingerprints developed during the examination was located inside bedroom 2. Police did not have a set of fingerprints from Mr Karmas that could be used for comparison purposes. 4. The second examination was a fingerprint examination conducted on 6 September 2011 by Senior Constable Watson on a filing cabinet located in the rear garage and a TV cabinet located on the footpath. 5. The third examination, on 2 May 2013, was conducted by crime scene officer, Dr Jennifer Raymond. Bedroom 2 was examined using a series of light source and chemical techniques in an attempt to locate biological evidence (blood) or signs of a clean-up. While some areas of staining were detected using the light sources, presumptive tests for blood on those areas returned negative results. Areas of sanding, repainting and patch-up were noted on the west wall. Dr Raymond gave evidence that if there was blood on a surface such as a wall and it was washed off or the wall was cleaned and repainted, the laser may not detect the presence of blood (see T 1462.38-44). Examinations of the applicant's blue Ford transit van 1. On 15 and 16 August 2011, Senior Constable Gibson conducted an examination of the applicant's blue Ford transit van at Western Sydney Crime Scene garage (which is located at Bass Hill Police Station). Photographs taken during the examination are Ex AW. 2. Detective Sergeant Flippence gave evidence that on 17 August 2011 he conducted a crime scene examination on the applicant's blue Ford transit van at Western Sydney Crime Scene garage; that there was no visible blood staining and that Luminol and Hemastix testing (presumptive tests for the presence of blood) gave positive presumptive reactions to a number of areas including the inner trim of the driver's door (see T 1093.1-8). Photographs of those areas that were taken during the examination were tendered and marked Ex AD. Swabs of the areas were obtained. 3. Exhibit AE is a series of 14 photographs taken of the blue van. Like some of the photos in Ex AW, they show, inter alia, a bottle of bleach in the rear of the van (Photos 12 and 13), a shoe with no shoelace (Photos 12 and 13) and a black glasses case in the glove box (Photo 14). Photographs taken during an examination of the glasses case and its contents are Ex BH. 4. The evidence established that the glasses case found in the glove box of the applicant's blue Transit van contained a pair of prescription glasses that belonged to Mr Karmas. The glasses were identified by Mrs Karmas and by his optometrist, Adrian Yap, who gave evidence that they matched a prescription issued to Mr Karmas on 11 April 2011 (Ex V; see also T 906.43-907.6). DNA recovered from swabs taken of the glasses was consistent with having originated from Mr Karmas. 5. On 9 September 2011, a further crime scene examination was conducted on the blue Ford transit van by Senior Sergeant Veness at the Western Sydney Crime Scene garage. Senior Sergeant Veness removed the inner door trim of the driver's door and performed a further Hemastix (presumptive) test on the edge of the driver's door which returned a positive indication for the possible presence of blood. DNA recovered from a swab taken from the door trim is consistent with having originated from Mr Karmas (with the profile expected to occur in approximately 1 in 26 billion individuals in the Australian population). It was noted that the swab had a light staining over more than three quarters of its surface (see Ex CN Item 27(a)). 6. It was the Crown case that that DNA evidence was consistent with the transference of Mr Karmas' DNA to the applicant (and the applicant's use of the vehicle) after the applicant killed Mr Karmas. It was contended on behalf of the applicant that the DNA may have been deposited in that location in 2006 (five years before the alleged murder) when he and Mr Karmas worked together in Bronte for a period. Enquiries as to the whereabouts of Mr Karmas 1. Police enquiries in relation to the whereabouts of Mr Karmas established that: according to records maintained by the Department of Immigration and Citizenship, Mr Karmas was listed as onshore since 26 July 2010 (i.e., that he had not left the country); Mr Karmas had not accessed his bank accounts since 8 August 2011 and no new bank accounts had been opened in his name; Mr Karmas had not come to the attention of any State or Territory police force; there was no record of Mr Karmas having accessed Centrelink or made a claim for any benefits through Medicare; and there was no record on the COPS and RMS systems of any interaction with Mr Karmas after his disappearance on 11 August 2011, including but not limited to an application for a driver's licence. 2. Attempts were unsuccessfully made to locate Mr Karmas, including using him as the face of the 2012 Missing Persons Week campaign which was conducted between 29 July and 4 August 2012. Posters of Mr Karmas (Ex BU) were installed in various locations including the Bankstown area. Evidence of motive 1. The Crown alleged that, at the time of Mr Karmas' disappearance, the applicant had a hatred of him, fuelled in part by an erroneous belief that Mr Karmas (acting at the instigation of or together with Ms Angeles) was involved in and responsible for the death of his brother, Nicholas Fantakis, and by Mr Karmas' interference in a dispute between the applicant, Nicholas Fantakis and Ms Angles. The Crown relied on the evidence of a number of witnesses who gave evidence that, in the period leading up to his disappearance, Mr Karmas had spoken to them regarding issues he was having with the applicant and had told them that the applicant had made threats towards him, including threats to kill him (see above). 2. The applicant, in a document "Complaint to the Coroner" dated 28 March 2012 (which has been referred to above) (Ex 17F), referred to the production of a fraudulent Will (by Ms Angeles) and stated that "I believe that the person who carried out this sick crime was someone that knew or someone of respected status that he (Nicholas) would let in the door" and that he knew there had been "foul play". 3. The Crown says that the belief that Mr Karmas was involved in and responsible for the death of Nicholas Fantakis is a recurring theme in the documents written by the applicant. The Crown also relied on the terms in which the applicant referred to Mr Karmas, both in his writings and in conversations recorded by listening devices, as evidence of his animosity towards Mr Karmas. Forensic evidence as to soil samples from blue van 1. On 12 June 2012, Senior Constable Gibson examined the applicant's blue Transit van (which had been seized from the applicant on 13 August 2011) and found a quantity of mud and dirt under the wheel arches of the vehicle. It was photographed in situ (Ex AW pages 19-32) before soil samples were collected from the wheel arches. 2. The soil samples were later examined by Professor Robert Fitzpatrick, a certified professional soil scientist with a Doctor of Philosophy Soil Science degree from the University of Natal and over 40 years' experience as a pedologist, geo-chemist, mineralogist and forensic soil scientist. Professor Fitzpatrick's analysis concluded that it was likely that the samples in the wheel arches and on the mudflaps of the vehicle were derived from primary soil transfers (i.e., that they were flicked up from the place directly when the vehicle had driven off bitumen roads) and that the vehicle had been in contact with: two types of wet native soils at the western margins of the Hawkesbury sandstone in the Georges River region (see the maps in slides 28 and 29 of Ex CB and at pp 20-21 of Ex CC); and basalt-rich road metal covering dirt roads, that was excavated (sourced and transported) from a basaltic rock quarry. 3. Professor Fitzpatrick gave evidence that the deposits recovered from the vehicle were consistent with the vehicle having travelled across those roads in wet conditions and that the vehicle went into "a very wet area" (see T 1829.36). Professor Fitzpatrick agreed, in cross-examination, that it was not possible to date the soil samples and said that the soil at the very back and tucked into the corners could have been there for a long time, but it was his interpretation that the "stuff that's heaped up would have come there recently, otherwise it would have fallen out" (see T 1836.15-17). 4. The Crown adduced evidence of data from the Bureau of Meteorology that revealed that it had rained in the Campbelltown area between 9.30pm on 11 August 2011 and 8.30am on 12 August 2011, with most of the rain falling between 2.30am and 4.30am (Ex CR). 5. It was the Crown case that Professor Fitzpatrick's evidence (as to the samples having been recently deposited and that they were consistent with having been deposited when the vehicle went through "a very wet area" and the likely area from which the soils had originated), provided support for the conclusion that the applicant's blue Ford transit van had been used to dispose of the body of Mr Karmas in the early hours of 12 August 2011 (when the applicant drove to western Sydney and when it was known to have been raining). Exhibit AA 1. Exhibit AA was a copy of a handwritten note on a single piece of lined paper: [W]rap in black cotton [s]heet & tie with black ribbon (shoe lace) tight and through (sic) in river (Georges River). 1. The Crown (suggesting that the note was written in future tense) contended that the note set out what the applicant planned to do to Mr Karmas and that other evidence (including evidence of the applicant's movements on 11, 12 and 13 August 2011, lies the applicant told about his movements, various admissions made by the applicant, and the evidence of Professor Fitzpatrick in relation to the soil samples recovered from the applicant's blue Ford transit van) supported a conclusion that the applicant disposed of the body of Mr Karmas and that he most likely did so in a manner consistent with the note. 2. There is an issue as to the location of the note, a copy of which became Ex AA (relevant in relation to ground 13). Detective Senior Constable Lye initially gave evidence that she thought she found the note at the back of a blue diary that had been seized from the front seat of the applicant's blue Ford transit van following a vehicle stop on 13 August 2011 (see T 1051.18-28). After making further enquiries, Detective Senior Constable Lye the following day gave evidence that she had inspected the physical exhibit and recalled that the note was found in a sleeve within a notepad that was contained within the heat-sealed exhibit (see T 1110.48-1112.26). Detective Senior Constable Lye noted that the notepad (and other items described by the witness) were behind the blue diary shown in Ex Z (Photo 6). The original of the note was tendered and marked Ex AG. Detective Senior Constable Lye gave evidence that the EFIMS system revealed that she was the first person to access the exhibit after it was booked into the exhibit management system on 13 August 2011 (see T 1122.29-33). 3. The applicant does not dispute that he was the author of the document (see T 2337.28). However, the applicant's evidence was that the note was never in his van; that it was in the garage at the Wilga Street Property with two other pages; and that he wrote the note after seeing a spiritual healer following his brother's death (see T 2337.30-2338.26). The applicant did not respond directly when asked in cross-examination whether he was suggesting that the note was planted. 4. The Crown also relied on statements made by the applicant that were recorded by a listening device (see below), which it alleged were admissions to or connected with his disposal of the body of Mr Karmas; and invited the jury to reject the applicant's evidence that, in the early hours of 12 August 2011, he and Mr Woods had been engaged in the disposal of cannabis debris. Searches conducted by police for the body of Mr Karmas 1. Two searches were conducted during the course of the police investigation in an effort to locate the remains of Mr Karmas. The first took place on 24 November 2011 when police divers conducted an arch search of a section of Salt Pan Creek downstream from the Henry Lawson Drive bridge. The second occurred over three days commencing on 26 August 2013 in an area of bushland at the end of Franklin Street in Leumeah. Nothing was located during either search. Evidence relied upon by the Crown to establish consciousness of guilt 1. The Crown relied on the following evidence as demonstrating a consciousness of guilt on the part of the applicant (and, in some cases, his co-accused Mr Woods). First, the evidence that the applicant had lied to Mrs Karmas on 12 August 2011 as to when he last saw Mr Karmas. Second, evidence as to lies the applicant told to police during his recorded interview on 13 August 2011 in relation to his movements in the early hours of 12 August 2011 as well as his statement to Mr Woods that Ms Robinson had not seen him leave because she had been asleep (a statement made in the course of Mr Woods complaining that his Nan was "fucking it up" and "She's fucked me, she's fucked you"; see Ex L). Third, evidence from Mr Chris Lines (see below) that the applicant told him to "stick to the story" (that "story" being a false account of Mr Woods' movements on the evening of 11 August 2011). Fourth, evidence of conversations between the applicant and Mr Woods on 25 November 2011 during which the Crown says they discussed killing the officer in charge of the murder investigation, Detective Sergeant McGee (Ex CS). 2. As to the evidence of Mr Lines, who was a friend of Mr Woods, he gave evidence that Mr Woods attended his home in Leumeah at about 7pm on 12 August 2011. Mr Woods prevailed upon him to provide a false account of Mr Woods' movements on 11 August 2011 by telling police that "everything that happened tonight (i.e., 12 August 2011) happened last night (i.e., 11 August 2011)". The Crown accepts that the actions of Mr Woods in that respect were not admissible against the applicant. However, Mr Lines also gave evidence that, roughly two to three weeks later, Mr Woods visited his home in the company of the applicant; and that Mr Woods asked him whether he had heard anything more about what was going on (referring to the police) and told him to "stick to the story", at which point Mr Lines said that the applicant himself told him to "stick to the story" (see T 645.45-48). The applicant denied having done so. 3. As to the conversations relating to Detective Sergeant McGee, the Crown relied on portions of conversations recorded by a listening device which, pursuant to a warrant, had been installed in a white Toyota HiAce van (Ex CS). It was the Crown case that the evidence supported an inference that the applicant and Mr Woods planned to kill Detective Sergeant McGee or see her dead because they wanted to disrupt the investigation of which she was the officer in charge; and that this thereby demonstrated a consciousness of guilt. (The admissibility of those recordings is the subject of ground 9 of the grounds of appeal.) 4. In a conversation which the Crown alleged related to the officer in charge, Mr Woods was recorded as saying that "I wanna know where she lives mate…I fuckin wanna know where she fuckin lives" and "I want her moving, I want her upset ok…moving, moving, moving….alright this is what we do,…. This is about fucking survival" and the applicant replied "You got fucken charges" (see Ex CS p 6). The recording also includes Mr Woods saying "Her vehicles in that same block you know…I don't even wanna punch her in the face okay…I want to blind her…I want to know where she lives. I want to know where she lives… I wanna know where she fuckin lives. I'm gonna start chasing her… I'm gonna start chasing her today" and that "She would have been gone…made sure…fuckin'… Officer in charge of Flaggy Dead". (Strike Force Flaggy was the name given to the police investigation into the murder of Mr Karmas.) 5. It was the Crown case that Mr Woods was then heard to say "Fuck this get a gun, we've got to get a gun". It was suggested on behalf of the applicant (and Mr Woods) that Mr Woods did not use the word "gun" but said "it done"; i.e., that he said "Fuck this get it done, we've got to get it done" (see Ex CS p 9). 6. The applicant is then recorded as saying "It's the only fucken way" to which Mr Woods replied "that's how you deal with it like that I'm just asking…if you can't help me I'll do it myself…". A short time later, Mr Woods said, "I don't wanna fucken…I don't… they drag you they drag me I said no…I don't like it…I want to influence the fucken hunter…they have the upper… you know what I mean…this barrister" (see Ex CS p 10). 7. In addition to the threats recorded in Ex CS, the Crown relied on evidence from Detective Sergeant McGee that the applicant and Mr Woods frequented the coffee shop at the bottom of Bankstown Police Station (where the investigation was based) and that she had seen them there on numerous dates. Detective Senior Constable Boland gave evidence that he had encountered Mr Woods in the company of an overweight and balding male of Greek appearance (who the Crown alleged was the applicant) at that location in early January 2012. Detective Sergeant Doueihi gave evidence that he spoke to the applicant and Mr Woods by phone on 6 July 2012 and advised them that police were investigating possible threats made towards Detective Sergeant McGee. Evidence of admissions made by the applicant 1. The Crown relied on admissions recorded by a listening device on 25 November 2011 (Ex CS) when, in conversation with the applicant, Mr Woods was recorded as saying "cause he's dead" and "It'll come out sure it will no worries…. We just… like fuck you… was he dead…yeah…no no no no look… it's gonna go to court… you gonna go to court you know" followed by "were gonna get put in gaol" (see Ex CS pp 4-5). 2. On 26 November 2011, the following exchange was recorded (Ex CS pp24-25): Applicant: …they can charge you Woods: They just can't make it stick. They can charge you with no body no thing you know that. Yeah you know that Applicant: …my van Woods: …hey Applicant: He was in my van, I never denied that…put it in my van so you know. Woods: Look at that, railways Applicant: …and…Warwick Street, so what, he was…and he was fucking Maria there so. Woods: Yeah hasn't that come out yet? Applicant: Nah, it will though Woods: How do you know that? Applicant: … Woods: What? Applicant: …the phone…the phone does magic things mate you know Woods: …huh? Applicant: …the phone does magic things… 1. It was the Crown case that the above conversation concerned Mr Karmas. The applicant denied that the reference to being charged without a body was a reference to Mr Karmas but agreed that the reference "he was fucking Maria" was a reference to Mr Karmas (see T 2348.20-2349.19). The Crown contended that the conversation demonstrated an awareness by the applicant of the content of the SMS messages sent from the phone of Mr Karmas to Ms Angeles from 3.57pm on 11 August 2011, consistent with them having been sent with his knowledge and at his behest. 2. The above conversation then immediately continued: Woods: Fuck I'm amazed he didn't peel as well Applicant: He went brown quick Woods: Hey Applicant: He went brown quick Woods: (laughs) haha yeah I know…he went fuckin black... 1. It was the Crown case that the above conversation, referred to the appearance of the body of Mr Karmas after he had been killed and that it supported the conclusion both that the applicant had murdered Mr Karmas and that he and Mr Woods together disposed of his body. 2. The following exchange then occurred later in the same conversation: Woods: …Fuck how long did we walk that night? Applicant: Heaps Woods: Hey Applicant: Yeah. And the next day I blow me van up. Yeah this has been emotionally the hardest thing I've ever done. I don't know what it's like for you, fuck. Nick gave us the first warning. Woods: I don't think we'll be charged for that man Applicant: Huh Woods: I don't think we'll be charged for that man Applicant: … Woods: …Huh Applicant: I gotta fucken prepare myself in case I do Woods: Fuck man, if you get charged so will I. Applicant: … Woods: Why do you mean dickhead, what are you talking about, as if I wouldn't Applicant: Nah cause I was with him all day 1. It was the Crown case that the reference to the "walk that night" and the applicant's response, "heaps", was a reference to the disposal of the body of Mr Karmas in the early hours of 12 August 2011. The applicant denied that the walk was a reference to the disposal of Mr Karmas' body and said they were discussing a walk at Cronulla but acknowledged that the reference to being with him all day was a reference Mr Karmas (see T 2365-2366). 2. On 31 July 2012, the applicant was recorded by listening device speaking to Mr Woods (Ex CX) in which the applicant said, "Fucking Nick's murder got up me…When used to work with him…I fucking hated him mate" and "I knew what I did was right and I knew that he had done to Nick" (see Ex CX p 11). It was the Crown case that the applicant was speaking of Mr Karmas. A short time later, the following exchange occurred: Woods: And then we had to drive home…and I get home, I drove home…Oh Get fucked..And I drive all the way back..And I'm telling ya it was ohhh..I was not. Applicant: (Inaudible).. my agility maggot up and down that fucking thing.. I don't know man I was fucking.. I was.. I was.. Woods: I can't believe he died like… where's the other one? Hold on a second I thought you said.. he was gone but he was coming back. Applicant: (Inaudible) .. fucking cunt…(Inaudible)… that's cause he was helping her. 1. It was the Crown case that the above exchange concerned the disposal of Mr Karmas' body. The Crown says that the description by Mr Woods of driving home and having to drive all the way back is consistent with CCTV footage captured at the M5 tollgates at Hammondville which showed him driving eastbound at 4.36am (in convoy with the applicant) before returning westbound at 7.01am (Ex BR). 2. The Crown also relied on admissions made by the applicant in various pieces of writing, a common theme of which was that he had assaulted and tortured Mr Karmas in his home at the Wilga Street Property (see below). 3. In a conversation recorded between the applicant and Mr Woods on 1 August 2012 (see Ex CX p 17), the applicant made reference to a number of officers involved in the murder investigation before saying: That cunt was bigger than you… and I climbed him maggot I grabbed him and actually climbed up him, head butted him straight in the nose and as he fell I fell with him, and that was the end of the fight you know. He didn't know what hit him. Maggot he pissed on my brother's fucken grave mate, these cunts. And that's how came to be… 1. In a recording made by the applicant which he described as "my last will and testimony in camera form" (Ex CE), the applicant said, inter alia, "I will be probably going into the police station having myself nominated for this so called murderer (sic) of Mr Karmas who he's such an important person that they spent so much money try to discover where a missing person has gone 'cause that's all he is a missing person. Ah, they still haven't murdered, murdered me…on the grounds, well no grounds actually, with no evidence, no money, no facts but I definitely am the one" (see Ex CE p 17). The applicant's evidence 1. The applicant participated in an electronically recorded interview (ERISP) on the evening of 13 August 2011. The interview was tendered in the Crown case on 26 March 2018 and marked Ex AX. In that interview, the applicant told police that he went to his Nan's house in Campbelltown at about 9pm, crashed on her lounge and got up and left at about 4am (see Ex AX p 3). 2. In his evidence at trial, the applicant, among other things said that: he had never had an argument with Mr Karmas and "never had an issue with Sam in dispute with any matter"; (when asked if he threatened Mr Karmas either to bury him or kill him) said "I refuse to accept that as being the truth"; said that he asked Mr Karmas whether Mr Karmas could help Derek (Cheong) move some items of furniture which were upstairs at the Warwick Street Duplex, which he said he would have struggled to move and did not want to risk dropping because he had burnt his left hand three or four days earlier and had always had a back condition; he only had Derek (Cheong) until about 3 o'clock so he thought "You know what, I might as well get Derek and unload them (referring to a TV unit and filing cabinet) before he has to leave" and that Mr Karmas offered to come and give them a hand; and said that he saw Mr Karmas open the glove box and place his glasses inside (see T 2301-2312). 3. The applicant also said that Mr Karmas did not enter the house at the Wilga Street Property on 11 August 2011; that Mr Karmas was "just in the hallway" when he suddenly remembered that he forgot something and left; and that he (the applicant) offered Mr Karmas a lift but he declined and said "I'd walk" (see T 2297.14-29). 4. The applicant said that his mother arrived about 15 or 20 minutes before (he) got a message from Mr Karmas and that his mother stayed until about 5 or 5.30(pm) "around that time" (see T 2312.30). 5. The applicant admitted that the work on bedroom 2 at the Wilga Street Property commenced on 12 August 2011 (the day after Mr Karmas' disappearance) but said that the work was to repair damage to the room connected with his brother's use of the room in 2007 to cultivate cannabis. 6. When asked whether he believed, as at 2 August 2011 (the date of the request for an inquest) that his brother had been murdered, the applicant said that "I just questioned his death" and that "Nick would never have done that, to be found by his mother" (see T 2298.29). 7. Questioned as to whether he intended to intimidate the officer in charge of the investigation, the applicant said "I never had any intentions to intimidate her apart – I was in a way reacting to a lot of what was being done to me" and said he was confronted with what he regarded as an ongoing barrage of intimidation towards him. As to whether he wanted to disrupt the police investigation, the applicant said "It's not that I actually wanted to disrupt the investigation. I wanted the investigation to actually start looking elsewhere" (see T 2326; 2378.1-3). 8. In relation to the documents that he had written, the applicant said that they were "a form of therapy" in which he had engaged that was discussed in a book recommended by his psychologist, Dr Awit, which encourages writing "whatever wild and crazy ideas you have" as a way of dealing with stressful situations; and he said that the videos and audio were the same (see T 2327.11-35). 9. The applicant denied having disposed of the body of Mr Karmas in the early hours of 12 August 2011. The applicant gave evidence that he left the Wilga Street Property at about 6.30pm on 11 August 2011 because he had made arrangements to meet Mr Woods to dispose of cannabis residue (soil, roots, stems and vegetable matter) that was being stored in Mr Woods' back shed after he (the applicant) brought it down from Peats Ridge. He said that the residue was contained in plastic bags and boxes. The applicant's evidence was that they met near Roselands at about 8.15pm before driving out to Ms Robinson's house at Campbelltown where they spent some time because they wanted to wait until later in the night to dispose of the soil; that they left in Mr Woods' van at about 1.30am and drove for no more than two to five minutes to an area of bush (near houses) where they disposed of the residue; and that they finished at about 4am and drove back to Ms Robinson's house where he collected his van and headed back to Sydney. 10. The applicant said that he told the truth in his record of interview. The applicant agreed that he did not tell police about disposing of the cannabis with Mr Woods but said this was because he did not think it had anything to do with the disappearance of Mr Karmas. In cross-examination, the applicant refused to accept that he had lied to police when he told them that he was at "Nan's house" on the lounge until 4am (on 12 August 2011), describing this as an omission (see T 2368.37; 2380.30-40). 11. The applicant initially suggested that he needed to take his van out to Campbelltown that night (as opposed to travelling with Mr Woods) because he did not want to be in a van full of cannabis and rubbish but later he said that he thought his van might have been needed to get rid of the material and then that Mr Woods wanted him to follow behind him so he did not get pulled over by police. The applicant admitted having "stockpiled" items that had been used to cultivate cannabis before getting a storage facility at Rhodes. 12. The applicant gave evidence that part of the cannabis debris had been brought down from Peats Ridge; a two hour drive away. The applicant admitted that there were places where he could have disposed of it between Peats Ridge and Sydney but said that he did not dispose of it there because it was broad daylight. The applicant, when asked why he could not have done it at night from Peats Ridge, said that (after bringing it down) he had tried to go to the tip in Sans Souci a couple of times. 13. The applicant agreed with the suggestion made by counsel for Mr Woods that he knew from his friendship with Mr Woods that he (Mr Woods) was involved in cannabis supply and cultivation. The applicant agreed that he was aware that Mr Woods had been pulled over by police driving a vehicle in which a quantity of cannabis was located and that, at that date, Mr Woods was "actively involved in the cultivation of cannabis" (T 2403.9-11). 14. The applicant called two witnesses: a solicitor, Photios Vouroudis, and a psychiatrist, Dr Stuart Saker, both of whom were interposed in the Crown case. Mr Vouroudis gave brief evidence on 23 April 2018 in relation to correspondence he had exchanged in relation to the property dispute between Nicholas Fantakis and the applicant and Ms Angeles. Dr Saker gave evidence on 12 April 2018 (see below). "Fresh evidence" relied upon by the applicant 1. As to the material contained within Annexures A-P and R to the affidavit sworn by the applicant on 1 September 2021, the Crown's position is that this material (to the extent that it is evidence at all) is not "fresh", rather it is "new" evidence (citing Abou-Chabake v R (2004) 149 A Crim R 417; [2004] NSWCCA 356 (Abou-Chabake) at [63] per Kirby J, with whom Mason P and Levine J agreed). Reference is made to the explanation of the distinction given by McClellan CJ at CL in Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 (Wood) at [707]: "New evidence" is evidence that was available and not adduced at the trial. "Fresh evidence" is evidence which either did not exist at the time of the trial or, if it did, could not then have been discovered by an accused exercising due diligence. [Citations omitted] (See also Xie v R [2021] NSWCCA 1 (Xie) at [433]-[434] per the Court (Bathurst CJ, R A Hulme and Beech-Jones JJ) as to the distinction between fresh and new evidence.) 1. It is noted by the Crown that various of the annexures to the applicant's affidavit reproduce portions of transcripts of other proceedings in which he has been involved. They are said by the applicant to demonstrate lines of cross-examination that could have been (but were not) pursued at trial. The Crown says in this regard that the propositions the applicant is recorded as having put to various police officers in those transcript passages were seldom accepted by the witnesses. 2. The Crown says that the applicant does not appear to rely on the (new) evidence contained in the annexures to his affidavit in the sense contemplated in Ratten v The Queen (1974) 131 CLR 510; [1974] HCA 35; rather, he relies on it in the context of grounds 7 and 15, which relate to complaints regarding the asserted non-disclosure of relevant material. 3. The Crown accepts that in order for the applicant to advance his argument as to why leave should or should not be granted the proposed new evidence may be received and considered by this Court. In that context, the Crown seeks leave to adduce, in response, evidence in the form of an affidavit of Detective Sergeant McGee sworn on 13 October 2021. The Crown submits that the contents of the affidavit demonstrate that assertions made by the applicant in relation to non-disclosure of relevant material are without foundation. 4. Further and in any event, the Crown submits that the new evidence, properly understood, does not establish the propositions for which the applicant contends (foremost, that the officer in charge, Detective Sergeant McGee, planted cannabis in the vehicle of Mr Woods) and accordingly the Crown submits that the proposed evidence lacks sufficient cogency to warrant a grant of leave to rely upon it. 5. There is no doubt that this evidence is not "fresh" evidence strictly so-called. To the extent that it is relied on as demonstrating possible lines of questioning that were not pursued it will be treated only as submission. Consideration of grounds of appeal 1. Turning then to the grounds of appeal raised by the applicant (and in respect of which leave is necessary) and noting that there is some overlap between individual grounds and the overarching unreasonable verdict ground, they are considered as follows. Grounds 1 and 2 Ground 1: The trial miscarried because the trial judge failed to leave the defence of mental illness to the jury. Ground 2: The trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of the defence of substantial impairment. Evidence as to the applicant's mental state 1. It is necessary in considering these grounds to have regard to the evidence at trial in relation to the applicant's mental state; and, in particular, evidence as to the applicant's mental state at the time he is alleged to have murdered Mr Karmas on 11 August 2011. Lay evidence • Evidence of Ms Patricia Mantas 1. As noted earlier, the applicant's former partner, Ms Patricia Mantas, gave evidence at the trial. Ms Mantas' evidence was that she was in a relationship "on and off" with the applicant for 14 years (see T 675.13); that the applicant attended her daughter's birthday party on Sunday 7 August 2011, having visited his brother's grave earlier that day; that she noticed that he was very "down" and depressed on that occasion; and that there were moments after the death of his brother when the applicant was "quite down" (see T 678.17). 2. Ms Mantas became aware, after Mr Karmas went missing, that the applicant was under police investigation; and she agreed that over the following months, the applicant started to develop some mental health concerns. Ms Mantas said (at T 682.5-12): There was a lot of things that just weren't rational anymore. I put it down to the stress of the whole situation, you know the deaths, one, deaths, two, then we've got the Maria Angeles scenario and wills being contested, and then I just - that amount of stress and pressure on a person has consequences. I saw that he got depressed and then he was saying things that just didn't make sense anymore… 1. Having been reminded that Nicholas Fantakis died in May 2011, Ms Mantas said that it was "probably towards the end of 2011" that she made those observations, and added that she began to see some real changes "from those months leading up to the end of the year" (see T 682.14-34). Ms Mantas thought that he was getting help from Dr Saker in Bankstown. Ms Mantas agreed that the applicant began to develop what appeared to her to be delusional theories "towards the end of the year" before adding that she was "shocking with dates and times" (see T 682.43-29). Ms Mantas described the applicant as "depressed" around her daughter's birthday and said that "from August onwards it was a slow worsening" (see T 683.40). Ms Mantas agreed that the applicant became delusional and began to discuss conspiracy theories with her "a few months later" than that period of August when he was depressed (see T 683.44-50). 2. Ms Mantas' evidence initially was that her relationship with the applicant ended "probably a few months after Sam went missing" but later Ms Mantas said that it must have been the end of 2012 and that their relationship gradually dissolved over the course of 2012. • Evidence of Ms Amara Mantas 1. Ms Amara Mantas (the then 16 or 17 year old daughter of Ms Mantas), when asked about the applicant's mental state, said that she did not particularly notice a change in his mental state near the end of 2011 and into 2012. Ms Amara Mantas said that at the time she made her police statement (in November 2013), she did not think there was anything strange (in the applicant's behaviour). Ms Amara Mantas agreed that she did not know too much about the police investigation until the applicant became paranoid about her mother helping the police; and when asked whether that was in 2012, she said "I think so" (see T 703.4). Ms Amara Mantas agreed with the proposition that the applicant had discussed crazy theories and conspiracies about police, this investigation and the Supreme Court with her, but was unable to recall when those discussions had taken place. • Evidence of Mr Harry Fandakis 1. Harry Fandakis, a distant cousin of John Fantakis (the late father of the applicant), gave evidence. Asked, in cross-examination, whether he observed that, in 2012 and 2013, the applicant was becoming more and more distressed, Mr Fandakis said that he was not a psychologist and that "I don't know if he was becoming more distressed. I could see that [the applicant] was sad. Saddened by the loss of immediate family" (see T 1000.1-2). • Police officers 1. Counsel for the applicant at trial elicited evidence from the two police officers who interviewed the applicant on 13 August 2011 to the effect that they did not observe any indication that the applicant was suffering from any mental illness. Counsel for the applicant also elicited evidence from Detective Senior Constable Costa, who was present at the execution of a search warrant at the Wilga Street Property in the early hours of 14 August 2011, that the applicant did not display "any signs of mental instability" during the execution of that search warrant (see T 1433.16-17). A video taken at the time of the execution of the search warrant showed the applicant's interaction with police on that occasion (Ex BD). • Applicant's evidence 1. The applicant gave evidence that the state of his mental health started to deteriorate "really badly" in 2012 when he started to accuse Ms Mantas and others of various things. The applicant said that by the end of 2012 he thought that everyone was conspiring against him and he had a "mental breakdown". Counsel for the applicant at trial asked him when he began to form "these rather bizarre views" and the applicant responded that "I can't even express what I was feeling or thinking in September 2012, that's when things really went pear shaped for me" (see T 2329.10-20). Psychiatric evidence 1. Each of Dr Stuart Saker, a clinical psychiatrist, and Professor David Greenberg, a forensic psychiatrist, gave evidence on 12 April 2018. Dr Saker was the applicant's treating psychiatrist. Professor Greenberg had neither treated nor interviewed the applicant. Dr Saker was called in the applicant's case but was interposed to give evidence during the Crown case. They each gave evidence on 12 April 2018. Dr Saker answered questions first and after he was excused Professor Greenberg then answered questions. Counsel for the applicant says that their evidence was consistent as to the applicant's mental ill health. • Dr Saker 1. Dr Saker first saw the applicant on 4 November 2011 and thereafter saw him on a number of occasions up to and including 19 July 2013. Dr Saker was taken in his evidence through the records he maintained of the applicant's presentation during each of those consultations. 2. Dr Saker gave evidence that the applicant had been referred to him by a GP for an assessment of depressive symptoms. He said the applicant told him he "had difficulties with what he thought was a fraudulent will for his late brother's estate that was put in by his late brother's ex-de facto", and the applicant described that he "was being accused of murdering someone who had been missing" (see T 1952.22-36). 3. On 4 November 2011, Dr Saker diagnosed the applicant with a major depressive episode with a differential diagnosis of an adjustment disorder with depressed mood. Dr Saker prescribed Sertaline, an anti-depressant medication and referred the applicant to a psychologist for cognitive behavioural therapy for anxiety and depression. 4. Dr Saker saw the applicant again on 24 November 2011. In relation to this consultation, Dr Saker said (at T 1954.13-16): I thought he had some paranoid, overvalued ideas, but then I also thought they may have been true and that was a tension that I constantly had with his version. He hadn't been suicidal and I encouraged him to take the antidepressant. 1. Dr Saker next saw the applicant on 16 December 2011; and then again in January 2012. As to the January 2012 consultation, Dr Saker noted that the applicant "was still pursuing an inquest into his brother's death, which he didn't believe was suicide". Further, Dr Saker said (at T 1955.29-31): The applicant presented with his mother, had an angry affect, described his mood as tense, had no formal thought disorder, had paranoid over-valued ideas about a police conspiracy, I thought. 1. As noted, Dr Saker described the applicant in January 2012 as having "paranoid over-valued ideas about a police conspiracy". In March 2012, Dr Saker described him as having a preoccupation with police harassment (in March 2012); on 5 April 2012 as having "some mildly paranoid over-valued ideas about police"; and on 21 May 2012 as being "hypervigilant [meaning jumpy, easily angered and suspicious] about the police investigation" (see T 1955.17-1957.35). 2. With respect to this series of early consultations, there was the following exchange with defence counsel appearing for the applicant at trial (at T 1957.1-1961.45): TODD: Could I just pause there. Correct me if I'm wrong, but, when you see someone for the first time, you have limited scope to conduct a diagnosis of any condition, but over time, with repeated consultations, you have a better insight. Would that be fair to say? WITNESS SAKER: Yes, I think that's fair to say. […] TODD: Did you think at this point to prescribe him any other medication? WITNESS SAKER: I think I was starting to, to, to twig, to prescribe him another medication. But the problem, the problem with private practice is the acceptability of the, the alternative medication. So it's always a bit of a struggle if you say that – to somebody that they're - you think that they might be delusional, or they might be psychotic, and you try and prescribe an antipsychotic they can reject that. TODD: Do I understand they also not only reject the medication but reject the analysis by you? WITNESS SAKER: Reject the analysis and also reject the clinician. TODD: So stop seeing you? WITNESS SAKER: Stop seeing you, yes. TODD: Because it's too confronting for them to take it? WITNESS SAKER: Yes. 1. In his notes of a consultation that took place in July 2012, Dr Saker recorded that the applicant was not clearly psychotic but had paranoid over-valued ideas and that his fears and accusations seemed plausible because there was some evidence that he had been threatened and victimised. Dr Saker noted that the applicant did not have auditory hallucinations and exhibited symptoms of major depression. 2. Dr Saker next saw the applicant in October 2012, when the applicant reported that he had broken up with his girlfriend three days earlier because he believed her house had been bugged and that she had been involved in it. 3. The applicant's (anti-depressant) medication was changed in October 2012 when it was noted that he was taking Alprazolam, an anti-anxiety medication. As noted in the exchange explained above, when questioned as to whether, as at October 2012, he thought to prescribe the applicant other medication, Dr Saker said that he thought he was starting to "twig" to prescribe him another medication but did not, having concerns that a patient might reject being prescribed an anti-psychotic medication. 4. In relation to each of the nine consultations that took place between 4 November 2011 and 9 October 2012, Dr Saker recorded that the applicant did not exhibit a formal thought disorder and that his insight and judgment were good. 5. In a consultation on 16 December 2012, the applicant reported being stressed as a result of having been charged with a drug offence, that he had smelt somebody nosing about his house who he then assaulted, and that the person had produced a police badge. Dr Saker on that occasion prescribed Asenapine and he gave evidence that "I think given that I prescribed him an antipsychotic medication, I was concluding by this point that he was psychotic" (see T 1963.19-20). 6. On 9 January 2013, the applicant attended a further consultation with Dr Saker during which he produced a CT scan showing a circular piece of calcification which the applicant said was a bug that had been implanted in his head. Dr Saker prescribed an alternative anti-psychotic medication, Quetiapine (used mainly to treat schizophrenia). Dr Saker noted on that occasion that the applicant had gone from having non-bizarre paranoid ideas to having a bizarre persecutory delusion. 7. On 20 February 2013, the applicant repeated his claim to have a transmitter implanted in his head, and Dr Saker then noted that the applicant appeared to have an ongoing persecutor delusion to that effect. Dr Saker noted that the applicant had been non-compliant with the regime of antipsychotic medication. Dr Saker prescribed a different antipsychotic medication, Aripiprazole, because it has fewer side effects and he thought it might be more acceptable to the applicant. 8. Dr Saker next saw the applicant on 19 July 2013, prior to which he performed a review, concluding (at T 1967.39-1968.2) that: Over the course of the consultations with me, he provided convincing evidence to me that he'd been bugged, followed and harassed by police, this includes confiscating his work vehicle, tools and possessions for over two years. During 2013, he expressed some persecutory delusions to me that a transmitter had been inserted into his brain, which he - when he found some calcification in his brain on a routine CT brain, he had - he was no longer convinced of this and the symptoms had gone back down to the level of a paranoid overvalued idea. My view is that he doesn't have schizophrenia, but that he's got short periods of psychosis, when under intense pressure from the police and has similarly had short periods of depression, anxiety and despair over his circumstances. 1. Dr Saker gave evidence about the consultation on 19 July 2013, and the following exchange then occurred (at 1968.8-31): TODD: You told us just then a moment ago that when under stress, he was displaying psychosis, is that right? WITNESS SAKER: Yes. TODD: Is that a transient, that is it comes and goes type of psychosis? WITNESS SAKER: That, that was, that was my, my theory then. It seemed to be that when he had a lot of pressure put on him the psychotic symptoms got worse. I suppose I saw him for a limited amount of time, so I don't know whether that was something that was occurring before seeing me or after seeing me. But during the time that he saw me, he seemed to be definitely psychotic and having persecutory delusions at times and sometimes it seemed to go down to a paranoid overvalued idea and sometimes what he was saying kind of made sense. He had evidence for some of the things that he was saying, and it's hard, it's hard, when you look back at it, or think about it, because I think there's one paradigm or world view where his brother Nick committed suicide and that's probably my paradigm and world view. And there's on paradigm and world view which is almost an alternative universe, when Nick was murdered and there was a conspiracy of people and Terry often had logic within that alternative universe. But if you live in my universe, it seems like a lot of what he said was at right angles to the truth. 1. Questioned as to whether "delusional disorder" was a diagnosis that he would be comfortable making in respect of the applicant the last time he saw him (19 July 2013), Dr Saker's response was "I think, yes. The only thing that kind of interferes with that diagnosis is that he's had the major depressive symptoms pretty consistently as well, so the, the psychosis got worse or got better, but the depression seemed to be fairly reasonably unremitting" (see T 1969.3-6). 2. Dr Saker gave evidence (at T 1969.36) that he agreed with the opinion expressed by Professor Greenberg in his report that: i. [T]here is support that [the applicant] was initially presenting with paranoid overvalued ideation about his ex-sister-in-law, the police and others with good insight and judgment in the initial months following the alleged offences. However, at some unknown date or period of time, his mental state appears to have significantly deteriorated"; ii. [T]here is documentation to suggest [the applicant] appears to present with overt delusional psychotic beliefs, perhaps as early as 27 October 2012, approximately 14 months after the alleged offence; and iii. [The applicant's] mental illness was emerging over a period of time prior to his initial diagnosis of an overt psychotic delusion on 30 January 2013. … [T]he various stresses following the death of his brother, such as him being a suspect in a murder investigation, his financial problems et cetera had some impact over time, which ultimately led to his psychotic presentation in year 2013. 1. As to when, in his opinion, there was more definitive evidence that the applicant was suffering from an overt delusional psychotic belief, Dr Saker said that it was when the applicant reported having smelt the police officer (referring to the consultation on 16 December 2012). • Professor Greenberg 1. Professor Greenberg, a forensic psychiatrist, reviewed documentation in relation to the applicant but (as noted above) did not examine the applicant. Professor Greenberg gave evidence that, having never examined the applicant himself, he could not make a specific diagnosis but said that the applicant likely met the criteria for having a paranoid delusional disorder and that there was an emerging paranoia culminating in a psychosis in late 2012 or early 2013. At T 2003.30-44, Professor Greenberg said: Looking at the documentation, there was information that [the applicant] had seen Dr Saker from November 2011 until July 2013 and that he had seen him over that period with the key symptoms of paranoid ideation or overvalued thoughts about persecution, which culminated in him making a diagnosis of psychosis, which is a mental illness, in January 2013. As well as in July 2013 making a second diagnosis that he wasn't schizophrenic but suffered from a fluctuating severity of symptoms of paranoia, the extreme being a psychosis and a lesser extreme not being a full mental illness would be overvalued ideas I was also aware of the reports from Dr Elliott who is the psychiatrist in the - a psychiatrist who saw him and diagnosed him with delusional - paranoid delusional disorder and a psychiatric registrar, that's a medical doctor in training to be a psychiatrist, Dr Chan, made a similar diagnosis of delusional disorder. 1. Professor Greenberg then said, at T 2004.1-7: From that I was of the view that having not examined him I cannot make a specific diagnosis, but from the information available to me it's likely that he met the criteria for having a delusional - a paranoid delusional disorder which is a psychotic illness currently. Those are my conclusions that there was an emerging paranoia culminating a psychosis in late 2012, early 2013. 1. Professor Greenberg expressed an opinion "on balance" that the applicant had a mental illness, noting that he had been treated for a long period of time for a mental illness (see T 2004.35). 2. Professor Greenberg expressed some concern about the new information he had learned having been present during Dr Saker's evidence (referring to Dr Saker's treatment of the co-accused, Mr Woods), noting that it was quite unusual for an accused and co-accused to have symptoms which are so similar. Professor Greenberg's evidence was that "I probably sway to the opinion that [the applicant] has a mental illness". Evidence of writings and recordings 1. It is also relevant in this context to consider the writings and audio recordings made by the applicant that are in evidence. The Crown relied on a number of written and audio-recorded admissions, these being the subject of objection under s 90 of the Evidence Act 1995 (NSW) (Evidence Act), on the basis that there was evidence from psychiatrists (Dr Saker and Professor Greenberg) that the applicant was psychotic at the time he made the admissions; and that there was accordingly a danger of unfair prejudice. Her Honour admitted the evidence for the reasons given in R v Fantakis [2018] NSWSC 1815 (the Admissibility Judgment). 2. Exhibits CF, CG, CH, CJ and CL consisted of writings or audio recordings made by the applicant. Exhibit CX consisted of conversations intercepted by a listening device. It was not in dispute that the jury might consider some of what the applicant said in those exhibits to be a product of delusion. However, the Crown emphasises the evidence as to the time when that material was created. 3. Detective Senior Constable Brennan gave evidence that Ex CF was created no earlier than 11 August 2011 and no later than 7 June 2013 (when many of the items were seized during a search warrant). There was evidence that Exs CF and CH had been emailed by the applicant to third parties on 12 and 13 December 2012 (which therefore places Ex CF as being no later than mid-December 2012). Various of the dates which appear on Exs CG, CJ and CL suggest that they were created in late 2012. The conversations recorded in Ex CX took place in the period between 31 July 2012 and 3 August 2012. None of the material appears on its face to have been created before 11 August 2011; and it is clear that much of the material was created in 2012. 4. The content of those exhibits (which this Court was urged to consider in full on the present application) may be summarised as follows. Exhibit CF 1. Exhibit CF comprises undated handwritten notes of the applicant, recounting his beliefs as to the events of 27 May 2011, the date of Nicholas Fantakis' death. The notes provide in detail the applicant's reasons for believing that Mr Karmas was responsible for his brother's death. The notes state that "[t]he act [an attack of Nicholas Fantakis] was pre planned [sic] as Sam Karmas lived a double life" going on to state that Mr Karmas was "a serial killer, sadistic in character profile". In the notes, the applicant proceeds to outline his theory regarding his brother's death, opining (inter alia): that his brother had not hung himself; that what had occurred was a "homocidal [sic]" hanging; that his brother was being surveilled; that Mr Karmas had electrocuted Nicholas Fantakis prior to contriving the supposed hanging; that another person (Ms Genetzakis) assisted Mr Karmas in effecting the murder; and that Mr Karmas had poisoned the applicant's father. 2. In the notes, the applicant refers to accosting Mr Karmas on 11 August 2011, claiming that Mr Karmas was carrying a taser. The applicant states that, as Mr Karmas passed, he "kicked him off his feet", punched him in the throat to "prevent him from breathing & screaming" and then grabbed the taser. The applicant states that he "used [Mr Karmas'] own weapon to incapacitate him" and goes on to set out that Mr Karmas then confessed to a number of things, including "that he had killed [the applicant's] brother, his involvement with high ranking police, insurance fraud & Maria's [Angeles] involvement". The applicant goes on to say that he "torchered [sic: tortured]" Mr Karmas "until he spilled his guts on all that are involved in this machine of killings". The applicant states that "the best thing for this animal [Mr Karmas] was to let him go & he would disappear like the snake he was", which, according to the applicant, "infers [sic: implies]" that "Sam Karma's [sic] is a missing man & that the only crimes that have been committed are by the above". The applicant makes various other allegations in the notes, including allegations that the coroner sold organs and removed "[n]ano mind control chips from victim's brains ect [sic]". 3. Given the references to Mr Karmas as a missing man (and the date reference to 11 August 2011), it is clear that these notes were made after the disappearance of Mr Karmas. Exhibit CG 1. Exhibit CG comprises handwritten notes of the applicant in a page of a diary that is dated Friday 19 October 2012 (and therefore can only logically have been made at some time after the 2012 diary was printed, even if the actual date on which the entry was made was not 19 October 2012). These notes detail how the applicant met Mr Karmas, and his opinion of Mr Karmas. The note states that the applicant met the deceased when he was 17 years old. The applicant opined that Mr Karmas had "fascinations of [sic] [his] mother". The applicant also states that his brother was "asked to represent Australia in the bricklaying Olympics, butt [sic] had a mortgage". The applicant alleges that someone "placed spells" on him and his brother until his brother "looked like a skeleton". The applicant again there refers to "torchoring [sic: torturing]" Mr Karmas and goes on to say that he "loaded him in the van & drove" and that he "left him tied up & watched him". The references to torturing Mr Karmas are consistent with the timing of these notes being after his disappearance. Exhibit CH 1. Exhibit CH comprises a handwritten note addressed to Judge White. In the note, the applicant details messages he purports to have sent to the Commissioner of Police. The applicant goes on to state "[y]ou are probably wondering how I convey these messages. Since I know they monitor my phones I simply SMS these messages to myself. I know they are being read". 2. The applicant referred to Mr Karmas in this letter as "Mr Karmas the missing man". At the conclusion the applicant stated that Mr Karmas "gave him a confession" and that he was "released but alive & now you know why he has staged his disappearance". 3. In the letter the applicant also details an encounter with "bikies" stating that "if [he] didn't have [his] daughter, instead of hitting 2 motorbikes [he] would have run over all 12 [bikies]". 4. The reference to Mr Karmas as "the missing man" clearly places this note as having been made after the disappearance of Mr Karmas. Exhibit CJ 1. Exhibit CJ is another handwritten letter dated 10 December 2012 to a judicial officer (and hence is a document in its terms brought into existence in late 2012). In this letter, the applicant details the circumstances in which he alleges he discovered a surveillance device in his place of residence, which he further alleges was placed there by a number of specified policemen and women. The applicant goes on to say: Recently I discovered that this was an RF Booster used to send & receive messages to the nano chip that has been intentionally fitted into Mr Wood's brain whilst in the care of [a mental health facility]. I no [sic] this does sound crazy but do some research at a internet café [sic], not at home, on mind control via nano technology. Its [sic] been in existance [sic] since the 1950's [sic]. 1. Later in the letter, the applicant opines that the "chip" in Mr Woods' brain "is special" and "allows audio & visual, i.e., they can see through his eyes". The applicant goes on to state that he chose to hand write the letter as "all [his] computers have been bugged & [his] internet & mobile phone". The applicant then says: … I have to be honest with you, I have lived a double life due to my upbringing. But I was mentored by a CIB agent who lives in Tasmania … He was Prince Charles's bodyguard whilst in Australia many years ago. 1. The applicant states that all seven attempts to have him killed "have frustrated NSW finest assasins [sic]". The applicant outlines the nature of the conspiracy in which he alleges he is involved. Under the heading "the true story of the missing man" the applicant says that prior to the "disappearance" of Mr Karmas, he (i.e., Mr Karmas) made five attempts "to [sic] having [sic] me murdered". The applicant explains the altercation with the deceased that took place on 11 August 2011 and goes on to say that he is "not proud of torchuring [sic: torturing] him for a period of 3 hrs", but then states that "in this time [he] gathered enough information to obtain the basic knowledge of his involvement in this organisation of Masonic justification (Illuminatis)". The applicant says that "after this time" (presumably meaning the period of three hours to which he has referred as involving the torture of Mr Karmas) he "released Sam [Karmas]", and that "there is a reason why [the deceased] cannot be found", that he was intending to "save face". 2. Relevantly, the date of this letter is consistent with the timing of the first statements by the applicant to Dr Saker as to the implantation of a bug in his head (which were recorded in the consultation of January 2013). Exhibit CL 1. Exhibit CL is a typed document headed "Police Investigation into Fraud Allegations" which commences at par 187. The document details the transfer of a fraud investigation concerning Ms Angeles from Ashfield Local Area Command to Bankstown Local Area Command, where it was assigned to the same detective in charge of the murder investigation. The applicant outlined his grievances concerning the investigation of the alleged fraud, and of the murder of the deceased, as well as his opinions as to the circumstances of the death of his brother. The applicant went on to say the following: I feel comfortable that my matter will be heard regarding the Murder of my brother, if that means having to accept responsibility for the murder of a missing man, I then under oath accept responsibility of Mr Sam Karma's [sic] as long as I have my day in court. 1. Having regard to the reference to "the murder of a missing man" in the context of a reference to Mr Karma, it is clear that this document came into existence after the disappearance of Mr Karma. Exhibit CS 1. Exhibit CS is a transcript of recordings taken from a listening device. The device was installed between 24 November 2011 and 29 November 2011. On 25 November 2011, the transcript records the following conversation (at pp 4-5): WOODS: … listen … you know … cause he's dead … hey you know what will be in the van yesterday … FANTAKIS: … WOODS: It'll come out sure it will no worries … we just … like fuck you … was he dead … yeah … no no no look … it's gonna go to court … you gonna go to court you know, you would have to be a fool not to go … you would have to be fed poisoned pork you're gonna FANTAKIS: … WOODS: … then they're going … we're gonna get put in gaol … then we'll be like … you only get to go to prison you're going to get caught … only if you're going to sort something … you need to serve something … court case … private hospital … I like that orderly … when we go and see Nick huh … very nice very nice very nice … fucken … WOODS: … what's the fucken story … you … they're going to find him … storage … taser injury … WOODS: … we believe that .. you know like a … suicide … all I'm saying is mate … death by electrocution 1. On 26 November 2011, the transcript records the following conversation (at pp 11-12): WOODS (?): … ok. Just listen. Eventually they always pick up on this right the fuck ups. They back track through our text messages ok. WOODS (?): Yep FANTAKIS(?): So we have to start saying palm this palm that palm palm palm then eventually we will have them off us ok WOODS: Yep … WOODS(?): He can … As long as he doesn't know the motivation of our crime … Shut up cunt … Want to fucken annoy me, try to fucken hunt me down like I'm some sort of a FANTAKIS(?): Criminal (laughs) … 1. Later that day the applicant and Mr Woods had the following exchange (at p 24): FANTAKIS: Welcome to Camden population fuck all … WOODS: … Oh there is now Graham Hills Road, Graham Hills Road that's where it is … ok Camden Valley Way you got a bit to go yet … do do do … (laughs) Fuck that if they got nothing then they can't charge you. What are you talking about dumb cunt? FANTAKIS: … they can charge you WOODS: They just can't make it stick WOODS: They can charge you with no body no thing you know that … FANTAKIS: … my van WOODS: … hey FANTAKIS: He was in my van, I never denied that … put it in my van so you know 1. Later on that same day, 26 November 2011, the transcript records the following exchange (at p 25): WOODS: Fuck I'm amazed he didn't peel as well FANTAKIS: He went brown quick WOODS: Hey FANTAKIS: He went brown quick WOODS: (laughs) haha yeah I know … he went fuckin black … 1. The applicant and Mr Woods proceeded to discuss the amount of time they were walking "that night", and Mr Woods went on to say that "the next day [he blew his] van up". Mr Woods then said that "this has been emotionally the hardest thing [he has] ever done". Later that evening the transcript records Mr Woods opining that he does not "think [they'll] be charged for that" to which the applicant responds "I gotta fucken prepare myself in case I do" (see Ex CS pp 29-30). Exhibit CX 1. Exhibit CX is the transcript of recordings taken from a listening device. The first track is a recording made between 4.37pm on 31 July 2012 and 2.17am on 1 August 2012. At one point in the recording, the applicant says that he "knows what they are going to try and do now … they are going to try and discredit [him] on lies" but that he had "already got that covered" and that there was "a reason why [he] did that … [he] had a reason … [he] did it out of love … [and] had nothing to gain from it so it's not actually a crime". Mr Woods responded to this by saying "every fuckin stone unturned" (presumably counselling the applicant to leave no stone unturned in his preparation for the trial). Applicant's submissions on grounds 1 and 2 1. On these grounds of appeal, Counsel for the applicant submits that the conviction should be quashed and a new trial ordered. The complaint here made is that, notwithstanding the choice made by the applicant through his counsel to conduct his defence on the basis that he did not kill Mr Karmas, a complete defence to liability (that of mental illness) was available on the evidence, and the trial judge should have put it to the jury to secure a fair trial of the accused. It is submitted that the failure by the trial judge to put the defence of mental illness occasioned a miscarriage of justice. Further, it is said that the defence of substantial impairment under s 23A of the Crimes Act 1900 (NSW) (Crimes Act) was also available on the evidence and that, if it had been left to the jury, there may have been a verdict of manslaughter. 2. Counsel for the applicant notes that at trial defence counsel emphasised in closing that there was no body, and no proof to the requisite standard that Mr Karmas was in fact dead; and that the applicant had given evidence denying the allegation of murder and seeking to explain several of the circumstances upon which the Crown relied. 3. It is noted that, although the applicant did not advance a defence of mental illness, the issue of the applicant's mental state was given considerable attention during the trial because of a challenge made by the defence to the reliability of various bizarre yet incriminating statements made by the applicant upon which the Crown relied as admissions; and that this was the evidence which the trial judge had admitted over objection. Defence counsel at trial had argued, before the jury, that the evidence was seriously doubtful because it was generated at a time when the applicant was psychotic. The admission evidence included various writings and recordings such as Exs CF, CG, CH, CJ, CL and CX (see above). In the writings comprising Ex CF, for example, there is a suggestion that Mr Karmas had confessed to murdering Nicholas Fantakis, and in Ex CG there are references to the applicant torturing Mr Karmas. 4. Instead of advancing mental illness as a full defence to the charge or seeking a verdict of manslaughter on the basis of the defence of substantial impairment, the applicant through his counsel defended the charge on the basis that there was no proof to the criminal standard that Mr Karmas was dead or that he had killed him. On the present appeal, it is submitted that, had defence counsel raised the defence of mental illness or substantial impairment or both as alternatives to the primary defence which he was advancing, defence counsel may have thought that doing so would weaken considerably that primary defence (since raising either or both of those defences would necessarily have assumed that the applicant had killed Mr Karmas). 5. I set out the relevant principles in due course. It is accepted by the applicant that, in order to succeed on grounds 1 or 2 on this appeal, the applicant must show that it was incumbent upon the trial judge to leave the defence of mental illness or the defence of substantial impairment or both, in the circumstances of the case. Reference is made to Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 (Pemble), in which Barwick CJ said (at 117-118): There is no doubt that the course taken by counsel for the appellant at the trial contributed substantially to the form of the summing up. If the trial had been of a civil cause, it might properly be said that the trial judge had put to the jury the issues which had arisen between the parties. But this was not a civil trial. The decision of the House of Lords in Mancini v. Director of Public Prosecutions following Lord Reading's judgment in R. v. Hopper and its influence in the administration of the criminal law must ever be borne in mind (see Kwaku Mensah v. The King). Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case on the material before them find or base a verdict in whole or in part. [Citations omitted] 1. Menzies and Windeyer JJ relevantly agreed. Menzies J said (at 133) that "counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury". 2. It is noted that these principles have been affirmed on many occasions, for example in Basanovic v R (2018) 100 NSWLR 840; [2018] NSWCCA 246 (Basanovic), at [78]-[79] per Simpson AJA (with whom Bellew and Wilson JJ agreed). In Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 (Fingleton), McHugh J said, at 198-199: A trial judge is bound to put to the jury every lawfully available defence open to the accused on the evidence even if the accused's counsel has not put that defence and even if counsel has expressly abandoned it. […] No doubt the course taken by counsel on each side put the learned trial judge in a difficult position. To a considerable extent, he would have had to instruct the jury on matters that counsel who then appeared for the appellant had eschewed. But as Barwick CJ makes clear in Pemble, the proper administration of the criminal law requires nothing less. The right of every accused to a fair trial according to law cannot automatically depend on the forensic choices of the counsel who represents the accused. [Citations omitted] 1. The principles have also been affirmed in the specific context of the defence of mental illness. In R v Ayoub (1984) 2 NSWLR 511 (Ayoub), Street CJ (with whom Slattery J agreed) said at 514: It is, of course, clear that, if the state of the evidence justifies it, a trial judge will put to the jury the defence of mental illness of his own motion. R v Damic [1982] 2 NSWLR 750 is a recent instance of such a case. Moreover, irrespective of whether or not the accused raises or disclaims such a defence, a trial judge, if he sees it as fairly open, may well have a positive duty to put the defence himself: Pemble v The Queen (1971) 124 CLR 107. 1. In R v Damic [1982] 2 NSWLR 750 (Damic), the trial judge left the defence of mental illness to the jury against the wishes of the accused. Street CJ (with whom Slattery and Miles JJ agreed) said, at 762: The trial judge was, as he reported to this Court, gravely concerned at the implications from the point of view of justice of permitting a man suffering mental illness to be convicted of murder for which there were strong grounds for doubting his true criminal responsibility. If the judge had not intervened by calling the psychiatrist this is the result which would very likely have ensued. He was, in my view, acting entirely properly in taking this course, notwithstanding that the accused man did not in fact, and did not wish to, set up a defence of mental illness. Indeed, if the judge had refrained from taking this course of his own motion, an unjust conviction could well have resulted. 1. It is noted that in Damic the accused was unrepresented, but Counsel for the applicant say that nowhere is it suggested that the principles deriving from Pemble apply differently in cases where the accused is represented. Ultimately, it is the task of the judge to ensure a fair trial of the accused. It is submitted that this extends to making sure that a person who was mentally ill at the time of the offence (in the sense of the Re M'Naghten's Case (1843) 8 ER 718) is not unjustly convicted. In R v Foy (1922) 39 WN (NSW) 20, Cullen CJ (with whom Ferguson and James JJ agreed) said: … as it would be contrary to justice that a person should be convicted of a crime committed whilst he was insane, merely because he himself later does not set up that defence, an issue on the question might properly be left to the jury though he relies at the trial on a defence on the merits only. 1. More recently, in Hawkins v The Queen (1994) 179 CLR 500; [1994] HCA 47 (Hawkins), an unanimous five-judge bench of the High Court said, at 517: ...if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. 1. In relation to ground 2, namely that the trial miscarried because her Honour failed to leave manslaughter to the jury on the basis of the defence of substantial impairment, it is noted that this issue was dealt with in R v Cheatham [2000] NSWCCA 282 (Cheatham). There, Spigelman CJ, with whom James and Sperling JJ agreed, held that there was a miscarriage because there was evidence to support the defence and the accused had lost an opportunity to have his crime reduced from murder to manslaughter on that basis (at [31]-[63]). 2. It is submitted by Counsel for the applicant that the trial judge in the present case was required to leave the defence of mental illness to the jury, subject to the question whether there was evidence capable of supporting it; and, further, that her Honour was required to leave manslaughter to the jury on the basis of the defence of substantial impairment (relying on Pemble, Fingleton, Ayoub, Hawkins; and Cheatham). 3. On the evidence and in the circumstances of this case, it is accepted by Counsel for the applicant that, if the applicant had killed Mr Karmas, he would likely have known the nature and quality of his act. What Counsel for the applicant contends, however, (as the basis for his potential acquittal on the ground of mental illness would have been, had her Honour directed the jury on the matter) is that it was reasonably open for the jury to find that the applicant did not know that his act was wrong. 4. Further, it is noted that the test for the defence of substantial impairment is different from (and less stringent than) the test for mental illness. In the present matter, Counsel for the applicant says that the potential basis for a finding of substantial impairment would have been that: the applicant was suffering from an abnormality of mind (i.e., a delusional disorder); this substantially impaired his capacity to perceive events or control himself (saying that "events" in the statutory offence should not be construed (narrowly)); and that the impairment was so substantial as to warrant a verdict of manslaughter rather than murder. 5. As to the evidence regarding the applicant's mental state, it is noted that the question whether there is evidence capable of supporting a defence to liability (whether or not it is a complete defence) does not require this Court to be satisfied that the defence would have been made out if it had been raised; rather, that the applicant merely needs to show that there was evidence which could have supported the relevant finding. 6. Counsel for the applicant submits that there was strong evidence tending to prove that the applicant was delusional at the time of the offence to the point of satisfying the requirements of the defence of mental illness (and also the defence of substantial impairment). Counsel for the applicant emphasises that it was the Crown case that the applicant had a deranged motive to kill Mr Karmas; and that, at that time, the applicant was "out of touch with reality" (it being said that the Crown case was that the applicant had killed Mr Karmas because he was delusional). Counsel for the applicant submits that the evidence upon which the Crown relied to show that the applicant was delusional was capable of supporting the proposition that the applicant was "M'Naghten mentally ill"; and argues that they are, in effect, the same proposition. 7. Although there was no specific evidence from a psychiatrist that the applicant was mentally ill or psychotic at the time of the murder, Counsel for the applicant says that this is explained by the fact that the applicant did not consult a psychiatrist until several months had passed (noting that Dr Saker commenced his treatment of the applicant in November 2011). In any event, Counsel for the applicant submits that satisfying the M'Naghten test does not require evidence that the accused had a formal diagnosis of mental illness at the time of the offence; saying that in many cases evidence as to the mental state of the accused some time after the offence will illuminate his or her mental state at the time of the offence. 8. Emphasis is placed on the evidence of Ms Mantas (as the applicant's long term partner) to the effect that the applicant's mental condition was deteriorating at the time of the offence; that she noticed him to be depressed and irrational, and that he said things that did not make sense anymore. Counsel for the applicant draws from Ms Mantas' evidence that the applicant was, from August 2011, discussing conspiracy theories, saying that Ms Mantas' evidence identified her daughter's birthday party on 7 August 2011 (four days before the commission of the offence on 11 August) as around the time when she remembers the deceased starting to talk to her about delusional theories (cf above at [163]); and noting that the applicant had visited Nicholas Fantakis' grave at Rookwood Cemetery on the morning of 7 August 2011. 9. Reference is made to Ms Mantas' evidence that, by August 2011, the applicant was burdened with a number of financial responsibilities; that the loss of his father in November 2010 had a very bad effect on him; and that Nicholas Fantakis' death in May 2011 was "the ultimate devastation" for the applicant. It is noted that, in relation to the deaths of his father and brother, Ms Mantas said: Q. With the death of his father and then brother, did you observe whether or not Terry had to take over in terms of looking after the property that was left by those two men? A. Terry did a lot, all that organisation. That burden seemed to be left on his shoulders squarely. 1. Reference is also made to the following evidence of Ms Mantas as being to the effect that the applicant became delusional following Nicholas Fantakis' death, and that there was a slow worsening from August onwards (see at T 682-683): Q. Did the changes in his personality and mental state become gradually worse and worse? A. Well I thought he was trying to get some help from a doctor. Q. Do you know of a Dr Saker, S-A-K-E-R? A. Dr Saker at Bankstown, correct. I didn't see any improvement. Q. But he did begin to have what to you appeared to be delusional theories? A. Yes, yes, he did. Q. Did they develop over time though? A. What timeframe are we talking about? Q. From the end of 2011 into 2012. A. I think it developed around about from Nick's death onwards towards the end of the year, and after that I never saw Terry much from that Christmas. Q. Did he begin to discuss conspiracy theories in the latter part of 2011? A. Absolutely, yes, so this is all after Nick's death. In my mind that's where it's all started from. 1. It is noted that, while Ms Mantas then said that she was "shocking with dates and times", Ms Mantas did vividly recall the applicant being depressed around the time of her daughter's birthday (7 August 2011). 2. Reference is also made more generally to the evidence of Ms Mantas commencing at T 675 and concluding at T 687. It is submitted that, based on the evidence of Ms Mantas, it would be accepted that the applicant's mental condition declined considerably following the death of his brother Nicholas Fantakis in May 2011; and that, by August 2011, the applicant was in a very "bad state". 3. Counsel for the applicant submits that, in addition to the evidence of Ms Mantas, the psychiatric evidence from Dr Saker and Professor Greenberg "tends to suggest that the Crown case on delusion was correct", and that the applicant may well have been mentally ill in the M'Naghten sense at the time of the offence. 4. Counsel for the applicant argues that the evidence of Dr Saker as to the early consultations and to the possibility that patients may reject antipsychotic medication as evidence that suggests that there may be a concern among private practitioners not to make a diagnosis of psychotic illness too readily, or to prescribe drugs too readily to treat it, because of the risk that the patient will reject the diagnosis. It is noted that Dr Saker adverted to these types of concerns again at T 1971.16-27. Counsel for the applicant says that this is further evidence (in addition to the evidence given at T 1957) which may explain why Dr Saker took some time to diagnose and address the applicant's psychotic illness. 5. In any case, Counsel for the applicant says that, by 16 December 2012, Dr Saker had concluded that the applicant was psychotic, and had prescribed the anti-psychotic drug Asenapine; and that Dr Saker presented an alternative antipsychotic medication in January 2013, namely Quetiapine (the main purpose of Quetiapine being to treat schizophrenia). It is noted that by this time Dr Saker had begun challenging the applicant's paranoid claims, and that Dr Saker considered whether he might have been wrong "from the beginning" and that the applicant might have been genuinely psychotic and delusional throughout the period during which he was treating him. 6. Counsel for the applicant submits that it is clear from the evidence of Dr Saker that his view was that the applicant was psychotic and delusional during the period that he was seeing him. Pausing there, I note that Dr Saker expressed this view in qualified terms, stating at T 1968.19-22 that the applicant "seemed to be definitely psychotic and having persecutory delusions at times and sometimes it seemed to go down to a paranoid overvalued idea and sometimes what he was saying kind of made sense" (emphasis added). Counsel for the applicant submits that the exchange extracted earlier from Dr Saker's evidence shows that Dr Saker accepted that the applicant may have been psychotic and delusional before that period, and that Dr Saker observed that the psychotic illness was sometimes more intense and manifested itself more obviously when the applicant was experiencing stress. It is noted that Dr Saker said that, although the applicant's symptoms of depression were constant, the symptoms of psychosis were not. Counsel for the applicant points to the following evidence given at T 1968-1969: TODD: So the delusional disorder, was that a diagnosis you would be comfortable with of Mr Fantakis, the last time you saw him? WITNESS SAKER: I think, yes. The only thing that kind of interferes with that diagnosis is that he's had the major depressive symptoms pretty consistently as well, so the, the psychosis got worse or got better, but the depression seemed to be fairly reasonably unremitting. 1. It is noted by Counsel for the applicant that at the trial defence counsel sought to elicit evidence supporting the proposition that the overt psychosis only emerged later, that is, after a number of sessions with Dr Saker had taken place. Counsel for the applicant explains this as being because defence counsel wished to demonstrate that the applicant was mentally ill at the time that he (later) made the bizarre statements upon which the Crown relied as admissions of guilt; and that the next step would be for defence counsel to argue that the jury should reject the admission evidence as unreliable. However, Counsel for the applicant says that the evidence of Dr Saker allows for the conclusion that the applicant was psychotic at all material times (i.e., when the applicant made the statements relied on as admissions but also earlier, when he was alleged to have killed Mr Karmas in August 2011). 2. Counsel for the applicant submits that the jury would have been entitled to prefer the evidence of Dr Saker over the evidence of Professor Greenberg to the extent of any inconsistency (given that the latter had not met or examined the applicant). It is noted that it was not put to Professor Greenberg that the applicant may well have been mentally ill at the time of the alleged murder but Counsel for the applicant submits that Professor Greenberg's evidence in any event does not disprove that the applicant was mentally ill at that time. 3. Counsel for the applicant argues that the proposition that the applicant was mentally ill at the time of the offence is supported by Dr Saker's evidence that the applicant's psychosis was more clearly on display during periods of high stress. It is said that the evidence inter alia of Ms Mantas shows that the period leading up to 11 August 2011 was a period of high stress for the applicant, which Counsel for the applicant contends is consistent with the conclusion that he was psychotic at that time. 4. Finally, Counsel for the applicant refers to the bizarre statements made by the applicant upon which the Crown relied as admissions (including Exs CF, CG, CH, CJ, CL and CX) which the applicant did not dispute as emanating from him, though he disputed their truth. It is said that they contained obviously delusional matters and assertions of false matters. Counsel for the applicant submits that the jury was, in effect, invited "to cherry pick or guess" matters that might be admissions but to ignore the rest. It is noted that, in closing, defence Counsel submitted (at T 2705-2706) that "Obviously what he's in effect saying to you is that was what I did, yes I did write those things out, I didn't do any of those things and I'm ashamed of that, that I've done that and I am not the same man". 5. Counsel for the applicant submits that it is clear from the content of these suggested admissions, and the evidence of the psychiatrists, that the applicant was suffering from a serious psychotic illness. This Court was asked to peruse the various writings and recordings and to accept that they include very bizarre statements which show clearly that the applicant was deranged. (Pausing there, this Court has done so; and there is no doubt that the writings include bizarre statements; but the difficulty is one as to timing of the writings or statements, bearing in mind that for most it is abundantly clear that they were brought into existence at a later time than the time of Mr Karmas' disappearance.) 6. On the basis of the evidence referred to above (and other evidence in the Crown case), it is submitted by Counsel for the applicant that there is a real possibility that the applicant was "M'Naghten mentally ill" at the time of the offence. It is submitted that, on the evidence in the Crown case, the applicant was deluded as to the cause of his brother's death and the motivations of various people (particularly Mr Karmas and Ms Angeles) in relation to family property and other matters and that it was well open to the jury to infer that the mental illness which undoubtedly afflicted the applicant in 2012 and 2013 had afflicted him before then, and that it did so at the time that he was alleged to have killed Mr Karmas. 7. It is submitted that, on the evidence, the effect of the applicant's delusions might well have been that he did not know that his act was wrong according to the ordinary standards of right and wrong adopted by reasonable people. It is submitted that this finding was reasonably open, and thus the issue of mental illness as a defence to the charge should have been left to the jury (notwithstanding the applicant's decision at trial to rely solely on a defence on the merits). 8. Counsel for the applicant further says that, on the evidence, it was open to the jury to find that at the time of the offence the applicant's capacity to perceive events (construing that term broadly) and to control himself may have been seriously affected by an abnormality of mind; and, hence, that the defence of substantial impairment should have been left to the jury. 9. Thus, it is contended that the trial miscarried by reason of the trial judge's failure to put the defence of mental illness to the jury and her failure to leave manslaughter to the jury on the basis of the defence of substantial impairment; and it is submitted that this miscarriage should be remedied by quashing the conviction and ordering that there be a new trial. Crown's submissions 1. The Crown emphasises the timing of the deterioration in the applicant's mental state. In particular, the Crown points out that the applicant himself gave evidence that his mental health started to deteriorate badly in 2012; that by the end of 2012 he had a "mental breakdown"; and that it was in about September 2012 that things went "pear shaped" and he began to form "rather bizarre views". The Crown says that this timeline is consistent with the evidence of the two psychiatrists (Dr Saker and Professor Greenberg) and the evidence of Ms Mantas; as well as evidence of other witnesses who said that the applicant did not exhibit signs of mental illness in their dealings with him in August 2011. 2. The Crown points out that neither of the two psychiatrists was asked to comment on the applicant's mental state as at 11 August 2011. The Crown notes that Dr Saker, when asked to give an opinion as to when the applicant presented with overt delusional psychotic beliefs, referred to a belief reported by the applicant during a consultation on 16 December 2012 (which was when Dr Saker first prescribed the applicant an anti-psychotic medication) and that Dr Saker did not formally diagnose the applicant until July 2013 when he expressed the view that the applicant did not have schizophrenia but did have "short periods of psychosis when under intense pressure from the police". Professor Greenberg, though he could not make a specific diagnosis (because he had not examined the applicant), considered that the applicant likely met the criteria for having a paranoid delusional disorder and that there was an emerging paranoia culminating in a psychosis in late 2012 or early 2013 (some 18 months after the offence). 3. Insofar as the applicant places significant reliance on the evidence of Ms Mantas, the Crown points out that, when questioned as to when the applicant began to talk about conspiracy theories, Ms Mantas agreed that it was not immediately after Nicholas Fantakis' death but "probably a few months after" and then later said that it was definitely in "the latter part of the year" (which she was able to pinpoint by reference to her daughter's birthday being in August). It is noted that, having said that she was "shocking with dates and times", Ms Mantas gave evidence that the applicant was depressed around her daughter's birthday (7 August 2011), and that the applicant had visited his brother's grave before attending the birthday party, but that Ms Mantas agreed that "the delusional happens later" (i.e., later than August 2011) and then said, "now we're talking a few months later". The Crown says that Ms Mantas confirmed that the conspiracy theories of which the applicant spoke included nanotech in his brain and the applicant accusing her of working with the police (matters that emerge in the applicant's writings and in references by Dr Saker of consultations in late 2012). The Crown says that Ms Mantas' difficulty with dates is well illustrated by the response she gave when asked if she separated from the applicant at the end of 2012, namely that "I thought it was 11 but if it's 12, it was around Christmas time". 4. The Crown points to other evidence as to when the applicant began to discuss the conspiracy theories to which Ms Mantas had referred. It is noted that Dr Saker gave evidence that the applicant told him in October 2012 that he had broken up with his girlfriend three days earlier because he believed she was involved in the bugging of her house; and that the applicant first reported the "bug" in his brain to Dr Saker on 9 January 2013 (both dates being remote in time from the alleged murder). 5. The Crown thus submits that, properly understood, Ms Mantas did not give evidence that the applicant started to talk to her about delusional theories around her daughter's birthday (cf the applicant's submissions at [33]) nor did she give evidence that by August 2011 the applicant was in a very bad state (cf the applicant's submissions at [37]). Rather, the Crown says that Ms Mantas' evidence, properly understood, is that the applicant started to talk to her about delusions or conspiracy theories a few months after August 2011. 6. The Crown attaches some significance to the fact that medical witnesses were called, and none was asked questions which elicited a foundation for a defence of mental illness as contemplated in M'Naghten or substantial impairment. It is accepted that the Crown case was that the offence was motivated in part by the applicant's deluded belief that Mr Karmas was involved in or responsible for his brother's death but the Crown argues that the fact that an accused is motivated by a delusional belief does not, of itself, give rise to a defence of mental illness (and cavils with the applicant's submission that they are "in effect, the same proposition" (cf applicant's submissions at [31])). 7. The Crown points out that there was no evidence as to whether a delusional belief of that character (without more and bearing in mind other evidence regarding the applicant's presentation and behaviour at and around 11 August 2011) amounted to a disease of the mind. The opinion of Professor Greenberg, with which Dr Saker agreed, was that various stressors on the applicant following the death of his brother (including but not limited to him being a suspect in a murder investigation) had some impact over time and ultimately led to his psychotic presentation in 2013. The Crown says that this raises a real question as to whether, even in 2013 when a diagnosis was first made, the applicant should be regarded as suffering from a disease of the mind or whether his presentation involved the reaction of a sound mind to external stimuli including stress producing factors. In any event, the Crown emphasises that persons who interacted with the applicant around 11 August 2011 did not regard him as exhibiting signs of mental illness. 8. It is said that there was also no evidence as to whether (if the applicant was suffering from a disease of the mind) the applicant was labouring under such a defect of reason that he did not know the nature and quality of the act or that what he was doing was wrong. It is noted that the applicant does not now suggest that he did not know the nature and quality of the act (see applicant's submissions at [27]) but that the applicant submits that "the effect of the applicant's delusions might well have been that he did not know that his act was wrong according to ordinary standards of right and wrong adopted by reasonable people" (see at [59]). The Crown submits that there is no evidentiary foundation for that assertion. 9. As to ground 2, it is noted that the potential basis for substantial impairment is said to have been "(a) that the applicant was suffering from an abnormality of the mind viz. a delusional disorder; (b) that this substantially impaired his capacity to perceive events or control himself; and (c) that the impairment was so substantial as to warrant a verdict of manslaughter rather than murder" (see applicant's submissions at [25]). The Crown emphasises that there was no evidence that, as at 11 August 2011, he suffered from "a delusional disorder" or that his capacity to perceive events or control himself was substantially impaired (and that Dr Saker even expressed some equivocation about making that diagnosis in relation to the applicant's presentation the last time he saw him on 19 July 2013). 10. Finally, while it is accepted that the approach taken by trial counsel is not determinative, the Crown points to the observation of the Full Court of the Supreme Court of Victoria in R v Shields (1967) VR 706 (Shields) at 708, namely that: In determining whether there was evidence of insanity, as is now claimed, it is not without significance that the experienced counsel for the accused at trial did not at any stage invite the trial judge to put insanity to the jury, but acquiesced when he did not… 1. (Pausing here, it is relevant to note that the Full Court in Shields went on to say at 708 that it was not without significance that counsel for the accused acquiesced "when His Honour indicated that the evidence [of insanity] was insufficient for that purpose". The Full Court also emphasised that "the trial judge … was clearly of the opinion that, having regard to the requirements of the criminal law, there was no evidence of insanity fit to be submitted to the jury".) 2. The Crown says that the observation of the Full Court in Shields is consistent with the observation by Simpson J, as her Honour then was, in Basanovic to the effect that the fact that a particular strategy has been adopted "does not relieve counsel – defence or prosecution of the obligation to bring to the trial judge's attention any matter that ought to be the subject of a direction". The Crown submits that, bearing in mind that obligation, the failure of defence counsel at trial to raise the need to leave either of the defences that are now relied upon to the jury (and indeed his explicit acknowledgment that he was not seeking that the defence of mental illness be left to the jury), can be seen as an acknowledgment that there was not "some evidence to support it such that the defence was fairly open". Determination Legal principles 1. As the Crown accepts, the duty of a trial judge extends to directing the jury with respect to any defence or alternative verdict that is reasonably open on the evidence, notwithstanding that it has not been raised or relied on by the accused person (see Basanovic at [78] citing Pemble). 2. In Pemble, Barwick CJ said (at 117-118): Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part. … Here, counsel for the defence did not merely not rely on the matters not sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused. 1. This principle has been applied both in the context of the defence of mental illness (see Shields at 707-708; Damic; Ayoub) as well as in the context of substantial impairment (see Cheatham; and see also Lo Tin v R [1964] Crim LR 135, cited with approval in Damic; and R v Issa (Supreme Court (NSW) Sperling J, 16 October 1995, unrep)). 2. That counsel may have adopted a strategy which might be damaged by proposing an alternative verdict does not relieve the trial judge of the obligation to direct the jury with respect to the alternative verdict "provided that it is viable on the evidence" (see Basanovic at [82] citing James v The Queen (2014) 253 CLR 475; [2014] HCA 6 (James) at [31]-[32] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 3. The relevant test has been stated (see Basanovic at [81]) as being "whether there is evidence that could support the defence or alternative verdict; that is, whether a case for the alternative verdict based on the evidence is viable" and as "if there was evidence reasonably capable of supporting the [defence]"; and in Fang v R [2018] NSWCCA 210 (Fang) at [61]-[63], as being "if there was some evidence to support it such that the defence was fairly open" (applying the test as stated by Street CJ, with whom Slattery J agreed, in Ayoub). In Cheatham, it was phrased as whether the defence was "reasonably open on the evidence before the Court". It is not suggested that there is a material difference between those formulations. 4. At the time of the present trial, the defence of mental illness was governed in New South Wales by s 38 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which gave effect to the common law principles concerning the defence of mental illness (see as articulated in Fang at [65]-[71]); and the defence of substantial impairment was governed by s 23A of the Crimes Act which then provided that: (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 1. Nevertheless, as expressed in the tests noted above, a trial judge is not bound to direct the jury in relation to a defence unless it is reasonable having regard to the evidence (see Mencarious v R [2008] NSWCCA 237 at [65] per McClellan CJ at CL, with whom James and Fullerton JJ agreed); that is, "there must be some evidential basis" (Flanagan v R [2013] NSWCCA 320 at [84] per Beazley P, as Her Excellency then was, Fullerton and Campbell JJ) or "evidence capable of supporting a verdict of manslaughter, or that a verdict of manslaughter was 'viable'" (Lane v R [2013] NSWCCA 317 at [43] per Bathurst CJ, Simpson and Adamson JJ). The duty is enlivened where the defence is reasonably open or viable having regard to the evidence. 2. It follows, therefore, that in relation to the substantial impairment defence the evidence must be capable of establishing the elements of the defence: first, that the accused was suffering from an abnormality of mind at the time of the offence arising from an underlying or pre-existing condition; second, that the accused's capacity was substantially impaired; and, third, that the impairment must be so substantial as to warrant liability for murder being reduced to manslaughter (see D Howard and B Westmore, Crime and Mental Health Law in New South Wales (2019, 3rd ed, LexisNexis Butterworths) Chapter 8). 3. There is limited guidance as to the strength of evidence required to enliven the duty of the trial judge to put to the jury the defence of substantial impairment. Generally, expert evidence will be necessary to establish the first element of the defence. In this regard, the remarks of Badgery-Parker J in R v Tumanako (1992) 64 A Crim R 149 at 160 are relevant (although it should be noted that they pertain to legislation which has subsequently been amended): The aetiology of the abnormality of mind is a matter which must be determined upon expert evidence: Byrne [1960] 2 QB 396 at 403; Purdy [1982] 2 NSWLR 964 at 966. That is not to say, as Glass JA pointed out in Purdy, that the expert evidence will fail in its purpose 'merely because the psychiatrist cannot be persuaded to adopt the statutory terminology'. … There may be no legal requirement that medical evidence be adduced by an accused person, but as the English Court of Appeal pointed out in Dix (1982) 74 Cr App R 306 at 311, the need to establish that the accused person's abnormality of mind arose from one of the specified causes makes the calling of medical evidence a practical necessity. 1. Having carefully reviewed the evidence adduced at trial, I do not consider that the evidence was sufficient to enliven a duty on the part of the trial judge to leave the defence of mental illness to the jury nor was it sufficient to raise such a duty in respect of the defence of substantial impairment. 2. As to mental illness, there was nothing in the evidence to lead to the conclusion that a defence of mental illness was reasonably open (or viable) as at the time of the offence. While I accept that a formal diagnosis of mental illness is not necessary, it is relevant to note that the first occasion that there was a diagnosis of psychosis (which is a mental illness) was in January 2013; that the first prescription of anti-psychotic medication was not until late 2012; and that even Dr Saker did not raise a suggestion of a mental illness earlier than October 2012. Ms Mantas' evidence placed the mental deterioration of the applicant as occurring a few months later than the August 2011 birthday party at which she said the applicant was depressed. 3. Moreover, insofar as the requirement (for a mental illness defence) that the applicant not have appreciated that the act of killing was wrong, the intercepted communications between the applicant and Mr Woods in November 2011 (and the applicant's obvious attempts to conceal evidence – by the cleaning of the van and the renovation works to the Wilga Street Property) as well as the applicant's reaction to the deluded belief as to his brother's death make clear that the applicant appreciated that the act of killing a man was wrong. 4. The fact that the applicant was suffering from a deluded belief that Mr Karmas had been involved in or the leader of persons involved in the murder of his brother at the time of the offence does not make a finding of mental illness reasonably open on the evidence. There is a distinction between a deluded belief and a delusional disorder. No doubt for this reason, on the present appeal, Senior Counsel for the applicant placed far more weight on ground 2 of the grounds of appeal. 5. As to the defence of substantial impairment, the evidence at trial still does not in my opinion provide a sufficient evidentiary foundation for a conclusion that a defence of substantial impairment was reasonably open and viable (so as to warrant a finding of manslaughter rather than murder) as would be necessary in order to give rise to a duty on the part of the trial judge to leave this defence to the jury even though it was not raised by the defence. It is apparent that the writings and audio recordings in which delusional thoughts are manifested were (consistently with the observations of those that were in a position to make lay observations of the applicant's mental state) brought into existence after Mr Karmas' disappearance and for the most part the most lurid of these were not brought into existence until late 2012. Again, it is significant that Ms Mantas ultimately placed the onset of the delusional thoughts and discussions and the deterioration in the applicant's mental state towards the latter part of 2011 (simply describing the applicant as at the August 2011 birthday party as "down" and depressed; and later as "quite down"). This is consistent with the description of the applicant's demeanour on the video footage take at the time of execution of the search warrant on 14 August 2011 and lay observations of him at the time. 6. Thus, grounds 1 and 2 are not made good. Ground 3: The verdict of the jury was unreasonable and cannot be supported having regard to the evidence and therefore was unsafe and unsatisfactory Applicant's submissions 1. The applicant, in his written submissions on this ground of appeal, emphasised the importance of giving careful consideration to the way in which the Crown case was put to the jury, noting that the case against him was circumstantial and hence that a verdict of guilty could not be returned unless all reasonable hypotheses consistent with innocence were excluded. In this regard, the applicant cited what was said in R v Gover (2000) 118 A Crim R 8; [2000] NSWCCA 303 by Dunford J at [42] (Stein JA and Simpson J, as her Honour then was, agreeing); as well as R v Hunter (No 2) [2013] NSWSC 1806; R v McIntyre [2000] NSWCCA 6 at [30]-[31], [35]-[36] per Hulme J (Sully and Hidden JJ agreeing) and Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42 (Barca). 2. The applicant maintains that there is a potentially fatal lacuna in the Crown case, namely, the absence of a body and any physical or forensic evidence belonging to Mr Karmas discovered at the Wilga Street Property notwithstanding the extensive and sophisticated crime scene examinations conducted by the police soon after the disappearance of Mr Karmas (referring to the significant degree of caution that Street CJ said in R v Burton (1986) 24 A Crim R 169 was required where there was the absence of a body and a circumstantial case). 3. The applicant contends that the Crown failed to present a case on evidence that was cogent and compelling. In that regard, the applicant points to the evidence of Ms Rifai that she had seen Mr Karmas between 2 and 3pm on 11 August 2011 across the road from his home while in the company of two or three men of Mediterranean appearance (see above) (none of whom could have been either Mr Cheong or himself, given Mr Cheong's Asian appearance and that Ms Rifai was familiar with the applicant's appearance). It is submitted that the Crown should not be permitted to rely on the submission that Ms Rifai's evidence was not inconsistent with Mr Karmas being engaged in conversation outside the Warwick Street Duplex with the applicant and Mr Cheong in circumstances where the police did not re-interview Ms Rifai after her initial police statement. The applicant submits that as his blue van had been parked in the same line of sight, this favours the conclusion that what Ms Rifai was describing was an event that occurred after Mr Karmas left the Wilga Street Property. The applicant says that this proposition was never asked of Mr Cheong whilst assisting police during his walkthrough interview on 18 August 2011 and was never put to the applicant during cross-examination. 4. The applicant further argues that he and Mr Cheong were persons of good character; and that evidence of good character is evidence that could rationally affect (directly or indirectly) the assessment of the probability that the accused committed the offence or offences charged. 5. The applicant says that the Crown failed to lead any evidence as to a motive for which Mr Cheong would lie to police (he having no connection with Mr Karmas or the applicant) and points out that the absence of evidence of motive can be taken into account, particularly in a case based on circumstantial evidence (citing De Gruchy v The Queen (2002) 211 CLR 85; [2002] HCA 33 at [30]; J D Heydon, Cross on Evidence (2015, 10th ed) at 235-236, there citing Palmer v The Queen (1998) 193 CLR 1; [1998] HCA 2 at [59] per Brennan, Gaudron and Gummow JJ and R v Batte (2000) 49 OR (3d) 321 at [120]-[121]). The applicant suggests that this explains the advancing of the "5 o'clock theory" (see below in relation to ground 4 and 5) (that being a proposition that excluded Mr Cheong), noting that Mr Cheong maintained his position notwithstanding the risk of an imminent custodial sentence if convicted. 6. The applicant contends that the absence of any forensic evidence at the Wilga Street Property, the ERISPs provided by Mr Cheong and the applicant to the police, the absence of motive for Mr Cheong to lie and the unchallenged evidence of Ms Rifai, were four key factual circumstances common to Mr Cheong and the applicant. The applicant submits that a reasonable hypothesis of innocence was thus not excluded by the Crown at trial; that being a common factual circumstance shared by the applicant and Mr Cheong (citing Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [58]; [119]). It is submitted that, consistent with the jury's decision to acquit Mr Cheong, a jury acting reasonably and according to directions must have found that there was a reasonable doubt in the applicant's case. 7. Referring to the first case theory of the Crown identified in the trial judge's summing up at SU 153 and 155, the applicant submits that a jury, acting reasonably, must have acquitted the applicant as the cases against Mr Cheong and the applicant did share a common factual matrix (citing The Queen v Darby (1982) 148 CLR 668; [1982] HCA 32 at 678 per Gibbs CJ, Aickin, Wilson and Brennan JJ); and that, to assume that the applicant could have been found guilty of the first case theory, would give rise to facts and evidence that would overturn/question Mr Cheong's acquittal (which would be impermissible – citing Garrett v The Queen (1977) 139 CLR 437; [1977] HCA 67). 8. Insofar as the Crown has submitted that the applicant cannot rely on Mr Cheong's account given in his ERISP and walkthrough interview (at [371] of the Crown's submissions), the applicant says that the trial judge directed the jury that they were entitled to use this evidence with regard to events asserted by Mr Cheong (at SU 154-155). 9. Thus, the applicant argues that, applying a practical and common sense approach, he must have been convicted on the second case theory (citing R v Christopher Robin Jones (NSWCCA, 2 August 1985, unreported)); and he maintains that this second case theory fails under scrutiny and should never have been left for the jury's consideration (see his submissions in relation to grounds 4 and 5, as to which I agree with Dhanji J's conclusions). 10. Briefly, since it is considered below in relation to grounds 4 and 5, as to the second (5 o'clock) case theory the applicant says that the Crown failed to prove beyond reasonable doubt that Mr Karmas returned to the Wilga Street Property; and that this was an indispensable intermediate fact. The applicant points to the telecommunication records (see as discussed in more detail in relation to grounds 4 and 5) and argues that these established that Mr Karmas' telephone handset was at Wentworthville at 5.30pm that day and therefore it was impossible for him to have been at the Wilga Street Property at or soon after 5 pm. 11. The applicant says that his writings were the only evidence to indicate that Mr Karmas returned to the Wilga Street Property after Mr Cheong was taken home; and notes that the importance of corroboration as to the return of Mr Karmas at 5pm was identified by her Honour in directions to the jury. 12. The applicant also relies on the absence of any physical, forensic or fingerprint evidence located within the Wilga Street Property belonging to Mr Karmas, arguing that the fact that the extensive crime scene investigations did reveal the location of DNA and fingerprints belonging to the applicant and other persons allowed for an inference that the alleged crime scene had not been cleaned by him to conceal the alleged violent attack on Mr Karmas. 13. It is argued that the inability of the Crown to prove the return of Mr Karmas to the Wilga Street Property at or soon after 5pm, the incontrovertible telecommunications evidence (that his handset was at Wentworthville at 5.30pm), and the forensic evidence identifies a reasonable hypothesis consistent with innocence that was not excluded by the Crown; and confirms that the delusional writing were (as the applicant maintained) delusional therapy writings authored by the applicant whilst suffering from psychosis. 14. The applicant points to the evidence given by him at the trial offering an explanation for his connection with the events that were described in evidence; and says that the Crown's case stands or falls depending upon the assessment of the writing and video evidence seized by investigating police from the applicant's home on 7 June 2013. The applicant's evidence was that, although he conceded having authored these writings, there was no truth in these writings and that the writings were therapy writings, as prescribed by his psychologist, Dr Awit. 15. The applicant says that the jury had to be satisfied beyond a reasonable doubt as to the truthfulness of the confession in these writings (and also as to the negation of his evidence beyond a reasonable doubt) before being able to act upon this evidence and he contends that there was a failure by the trial judge to direct the jury on this issue (which is raised by ground 16 of the applicant's submissions and is addressed by Dhanji J, with whom I agree). The applicant maintains that his evidence (not contradicted by the Crown) (to the requisite test of beyond a reasonable doubt) was enough to suggest a reasonable hypothesis consistent with innocence, saying that it possessed a high degree of acceptability and was not contrary to proven facts. 16. It is submitted that a jury acting reasonably had to accept the extensive and compelling psychiatric evidence (a condition that the applicant says was self-evident on the face of the writing and video evidence) and that the jury was not entitled to reject, as a reasonable possibility, the alternative explanation proffered by the applicant (referring to Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 at [130] per Gummow J). 17. The applicant maintains that although the evidence that had been led at trial might excite suspicion, it was not sufficient to show to the requisite test that Mr Karmas did return to the Wilga Street Property at or about 5pm on 11 August 2011, and that Mr Karmas was violently killed in the second bedroom (or, the applicant says "anywhere in Punchbowl"). 18. The applicant emphasises that suspicion and conjecture, even grave suspicion, is not a proper basis for the finding of guilt (citing Wood at [827] per Rothman J; and referring to Barca at 104-105 per Gibbs, Stephen, and Mason JJ for the proposition that for an inference to be reasonable it must rest upon something more than mere conjecture). Reference is made in this regard to R v Zaiter [2004] NSWCCA 35 at [10] per Ipp JA; and Director of Public Prosecutions v Shannon [1975] AC 717 at 764; R v Shannon [1974] 2 All ER 1009 at 1043 per Lord Simon of Glaisdale. 19. The applicant refers to authority for the proposition that, even making full allowance for the advantages enjoyed by the jury, where there is a significant possibility that an innocent man has been convicted the Court is bound to act and set aside the verdict (citing Morris v The Queen (1987) 163 CLR 454; [1987] HCA 50 (Morris) in this regard and emphasising the duty of this Court to satisfy itself that there was "a sufficiency of legal evidence to satisfy reasonable men to the exclusion of any reasonable doubt", citing Dixon J in McKay v The Queen (1935) 54 CLR 1; [1935] HCA 70, including a duty to examine of the probative value of a confession). Reference is also made to the discussion of Dixon J as to the reliability of an admission made by a schizophrenic in Sinclair v The Queen (1946) 73 CLR 316; [1946] HCA 55 (Sinclair). 20. The applicant places particular reliance on the decision in Morris as support for ground 3 that the verdict was unreasonable and unsafe, submitting that the Crown case in the present case is weaker than the case of Morris. Reliance is also placed on the High Court decision in Pell. The applicant maintains that in the present case the Crown only relied upon the "uncorroborated delusional writing evidence that lacked credibility, reliability and probative force to prove the 5 o'clock proposition that resulted in the jury returning a guilty verdict". The applicant contends that the jury must have attached undue weight to the uncorroborated delusional writings, failing appropriately to consider evidence which was consistent with a reasonable hypothesis of innocence. 21. The applicant maintains that the "apparent discrepancies, inadequacies and lack of probative force of the uncorroborated writing evidence" should lead to the conclusion that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent man has here been convicted. 22. The applicant, in particular, identifies the following matters at [838] of his submissions: that he was a person of good character and had no criminal record; that there were no plans to meet with Mr Karmas on the 11 August 2011 and no pre-planning with Mr Woods going out to Granville; that the telecommunications records are consistent with the applicant's evidence that Mr Karmas initiated contact on 11 August 2011 (which he maintains supports the inference that there was no substance to the alleged death threats); the trial judge was not satisfied to the criminal test that Mr Karmas was lured to the Wilga Street Property (citing [24] of the sentencing judgment); that ERISP and walkthrough interviews provided by Mr Cheong asserted that Mr Karmas left the Wilga Street Property on foot soon after his arrival at or soon after 1.50pm and there being no animosity between Mr Karmas and the applicant (evidence that the applicant says the jury must have accepted); the evidence from the applicant's treating psychiatrist, Dr Saker, that little weight be afforded to the writing and video evidence; the concurrence of Professor Greenberg that the applicant was suffering from psychosis; the trial judge's statement to the jury that the psychiatric evidence was credible and the jury would need a pretty good reason to reject it; that no admission was ever made by the applicant to having murdered Mr Karmas; that the writings were not corroborated by any other independent evidence; that Mr Karmas did return to the Wilga Street Property or that Mr Karmas had been assaulted by applicant; that three extensive and sophisticated crime scene investigations of the Wilga Street Property (or any location of relevance), failed to discover any fingerprint or DNA belonging to Mr Karmas, and no physical evidence of a violent murder; that there was no evidence that the Wilga Street Property was cleaned to destroy forensic evidence (and that the forensic evidence confirms the discovery of fingerprint and DNA evidence from a number of persons); that a reasonable explanation was offered by the defence as to the presence of Mr Karmas' DNA on the applicant's vehicle; the telecommunications evidence allowing for the inference that Mr Karmas could not have been in the Punchbowl area at or soon after 5pm (as per the delusional writings), noting that Mr Karmas' mobile handset pinged at Wentworthville at 5.26pm on 11 August 2011 and the Crown failed to lead any evidence that Mr Karmas' mobile handset had been seized before 3.57pm or that another person took Mr Karmas' mobile handset to Wentworthville at 5.26pm; that Detective Sergeant McGee conceded that there was no evidence to prove that Mr Woods actually took possession of Mr Karmas' mobile handset, or that Mr Woods physically sent those messages; that the only evidence adduced by investigating police at trial was in support of the proposition that Mr Karmas was murdered before 3.57pm; and that the unchallenged evidence from Ms Rifai was that she saw Mr Karmas between 2 and 3pm on 11 August 2011 (which it is said corroborates the version of events asserted by the applicant and Mr Cheong to police). 23. The applicant contends that the compounding improbabilities caused by the unchallenged evidence and the grave doubts expressed by the Crown with regard to the writing evidence, required the jury, acting rationally, to have doubt about the applicant's guilt. The applicant contends that at an inevitable re-trial the Crown would be bound to conduct that same case in the first instance (which he says is a case that logically failed as a result of circumstances and a series of unchallenged evidence), thus warranting orders for his acquittal. 24. The applicant further argues that the first trial "miscarried by reason of the conduct of the Crown, Mr Price and her Honour who acted in partisan in making the applicant subject to a conceptually different and conflicting charge that was not pleaded, argued or put squarely to a single witness before the close of evidence", and in those circumstances (relying on what was said by Kirby J in Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15 at [539]), the applicant argues that there should be no order for a new trial and orders of acquittal should be entered. Crown's submissions 1. The Crown notes that many of the matters raised by the applicant in support of this ground are duplicated in other grounds. Further, the Crown notes that, in the course of the applicant's own submissions (as opposed to those prepared by Counsel in relation to grounds 1 and 2) the applicant makes reference to and appears to rely upon material that was not before the jury (including but not limited to evidence heard on voir dire, the contents of MFIs, transcripts of separate proceedings and, in some cases, parts of the brief of evidence). The Crown says that in many instances (because it did not form part of the evidence before the jury) such material cannot be taken into account in the way the applicant contends; but says that the voluminous nature of the material filed by the applicant makes it not possible to identify every such occasion. 2. The Crown says that the submissions made by the applicant in support of this ground are based on a number of fundamental misconceptions. In this regard, the Crown cavils with the suggestion emerging from the applicant's submissions that this ground should be evaluated on the basis that the acquittal of Mr Cheong demonstrates that the jury rejected the proposition that the applicant murdered Mr Karmas at the Wilga Street Property between 1.52pm and 3.07pm on 11 August 2011 (cf the applicant's submissions at [12], [600]; [655]). 3. While the applicant does not contend that his conviction is inconsistent with the acquittal of Mr Cheong, the Crown submits that the principles that apply in respect of inconsistent verdicts are instructive. It is noted that the applicable principles in cases where jury verdicts are said to be factually inconsistent were set out by McHugh J in Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 at [118]-[121], his Honour noting at [118] that the issue is determined by examining the evidence and the directions to the jury. Reference is also made to R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 , where a five-judge bench of this Court applied the same principles to circumstances where allegedly inconsistent verdicts were returned by the same jury in a joint trial. It is noted that in that case, Howie and Johnson JJ said at [44]: ...the question that arises is whether, in light of the evidence, the issues raised and the directions given to the jury, 'no reasonable jury who had applied their minds to the evidence could have arrived at the two different verdicts'. 1. It is noted that in both those cases attention is directed to the evidence that was admissible against the respective accused and the directions that were given. The Crown notes that in the present case the applicant relies on the account given by Mr Cheong in his ERISP and walkthrough video (which exhibits were not admissible in the applicant's case) and hence the applicant's reliance on those documents is misconceived. Further, the Crown notes that a significant body of evidence that was admissible against the applicant was not admissible against Mr Cheong. Accordingly, the Crown says that the assumption underlying the applicant's treatment of this ground (namely, that the jury rejected the proposition that the applicant murdered Mr Karmas at the Wilga Street Property between 1.52pm and 3.07pm on 11 August 2011) is without foundation. 2. The Crown contends that even if this ground of appeal did fall to be considered on the basis that the jury rejected the proposition that the applicant murdered Mr Karmas at the Wilga Street Property between 1.52pm and 3.07pm on 11 August 2011, the applicant's writings (Exs CF, CG and CJ) were not the only evidence that supported the conclusion that Mr Karmas returned to that address later that afternoon (see the submissions of the Crown in relation to ground 6(4) set out at [216] of the Crown's submissions). 3. As to the other matters relied upon by the applicant, the Crown makes the following observations, noting that not all of the applicant's contentions need to be separately addressed (their significance falling to be assessed in light of the evidence as a whole). 4. First, as to the submission that the body of Mr Karmas was not found and that "extensive land and water searches failed to find any evidence to support the theory that was developed from Exhibit AA", the Crown says that this misstates the extent of searches conducted by police (see above). That said, the Crown accepts that it is undeniable that Mr Karmas' body was not found, nor was any murder weapon found; and that this was a circumstantial case. 5. As to the proposition based on the evidence of Ms Rifai, the Crown submits that her evidence (see above from [43]) does not give rise to a reasonable hypothesis consistent with innocence; rather, her evidence must be considered in the context of all the other evidence, including evidence as to the distance at which the observations were made. 6. As to the absence of DNA, fingerprints or clothing belonging to Mr Karmas after the three forensic examinations of the Wilga Street Property and the submission as to the absence of any physical evidence that a violent crime was committed against Mr Karmas at the Wilga Street Property, the Crown says that it was not in dispute that no forensic evidence consistent with having originated from Mr Karmas was located at the Wilga Street Property but that the significance of that fact fell to be considered in light of other evidence relied upon by the Crown to establish that the applicant was responsible for the murder of Mr Karmas and the disposal of his body. It is submitted that this was not a matter that was of such a character that, either of itself or in combination with other matters, required the jury to have entertained a reasonable doubt as to his guilt. 7. As to the applicant's submission that there was no evidence that the Wilga Street Property was cleaned to destroy any forensic evidence and the assertion that ample fingerprint and DNA evidence belonging to other persons was recovered from that location, the Crown says that this submission misstates the evidence. As to the fingerprint examination, it is noted that none of the fingerprints located was found in bedroom 2. Further, it is noted that the evidence before the jury included evidence of renovation works conducted in bedroom 2 at the Wilga Street Property on 12 and 13 August 2011; and that it was the Crown case that the timing of the work, and the fact that it was confined in bedroom 2 of the premises, was consistent with the murder having taken place in that room on 11 August 2011. 8. Insofar as the applicant relies on matters said to undermine his motive to kill Mr Karmas, including an assertion that the Crown failed to prove that the applicant's animus towards Mr Karmas continued after 23 June 2011 when Ms Angeles moved out of the Warwick Street Duplex, the Crown says that the applicant's submissions overlook the nature and extent of the evidence relied upon by the Crown in relation to motive (which is summarised at [31]-[49] of the Crown's submissions and has been referred to above). 9. Insofar as the applicant further submits that evidence that Mr Karmas initiated contact with him (by telephone) on 11 August 2011 is not consistent with the applicant having previously made death threats towards him, the Crown says that this submission overlooks evidence as to the character of Mr Karmas (particularly that of Mr Charawani who described Mr Karmas as a devoutly religious man who believed that whatever happened to him would be God's will, as well as the evidence of Mr George Karmas that his brother told him that he felt sorry for the applicant notwithstanding that he had earlier threatened to kill him). 10. The Crown notes that the applicant relies on a submission by counsel who appeared for Mr Woods to the effect that the Crown failed to exclude the sighting of Mr Karmas by his daughter, Ms Sarah Karmas, between 2 and 2.30pm on 11 August 2011 "coming and going from his ute" (see applicant's submissions at [18]). The Crown points out that the trial judge directed the jury during the summing up that this submission misrepresented the evidence of Ms Sarah Karmas. At SU 45, the trial judge interposed to note that this submission referred to the evidence of Mrs Dunsmore that Mrs Karmas had told her that Sarah had seen her father between 2 and 2.30pm, which the trial judge emphasised was hearsay evidence. The trial judge further noted that Ms Sarah Karmas gave evidence that she last saw her father at 1pm. 11. Insofar as the applicant repeats criticisms made of the police investigation as well as allegations of serious impropriety on the part of numerous police officers including the officer in charge, Detective Sergeant McGee, the Crown addresses those submissions in response to the individual grounds of appeal to which they relate (see below). 12. The Crown notes that the applicant relies on the psychiatric evidence which he asserts demonstrated that his writings should not be believed, and that little weight should be given to them. The Crown contends (for the reasons given in addressing ground 13 – see below from [450]) that it was open to the jury to regard aspects of the writings of the applicant as sufficiently reliable; and that the question of the weight to be afforded to them was entirely a matter for the jury. 13. The Crown also notes that in his submissions, the applicant refers at a number of points to evidence of Dr Saker that was not before the jury (in particular at [91]; [96]; [616]-[618]; [622]-[623]). The Crown notes that, in the course of giving evidence in the trial, Dr Saker was not asked directly to comment on the writings or audio recordings made by the applicant. The reasonableness of the jury's verdict is not to be judged by reference to evidence that was not before the jury. 14. Finally, the Crown emphasises that the Crown case against the applicant was circumstantial and, as such, the evidence must not be analysed in a piecemeal way; rather, the whole of the evidence and the inferences which are available to be drawn from it must be considered and weighed (The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 (Hillier) at [46] per Gummow, Hayne and Crennan JJ). The Crown submits that the applicant's approach in many respects concentrates upon specific circumstances relied upon by the Crown to the exclusion of other circumstances; and the Crown says that such an approach is erroneous (the Crown referring to Gilham v R (2012) 224 A Crim R 22; [2012] NSWCCA 131 at [466] per McClellan CJ at CL, Fullerton and Garling JJ, citing R v Micallef (2002) 136 A Crim R 127; [2002] NSWCCA 480; at [42] per Dunford J and Burrell v R [2009] NSWCCA 193 at [55] per Giles JA). 15. The Crown submits that (for the reasons given in its submissions at [294] – in summary, the evidence of motive, the fact that the applicant was the last person to see Mr Karmas alive, the fact that Mr Karmas' glasses and DNA were found in the applicant's vehicle, the evidence in relation to the four text messages sent from Mr Karmas' phone to Ms Angeles, the evidence supporting the conclusion that the applicant disposed of Mr Karmas' body in the early hours of 12 August 2011, admissions made by the applicant, and evidence of the applicant's consciousness of his own guilt), the evidence against the applicant was compelling; and that none of the matters relied upon by the applicant was such as to have caused the jury to have reasonable doubt about his guilt nor are they of such significance as to cause this Court to entertain a doubt that the jury ought to have had. Determination 1. There is no dispute as to the applicable principles where it is contended that a verdict is unreasonable. The question is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (see M v The Queen (1994) 181 CLR 487; [1994] HCA 63 (M) at 492-493 per Mason CJ, Deane, Dawson and Toohey JJ; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [13]-[14], [22] per French CJ, Gummow J and Kiefel J, as her Honour then was). 2. In Libke v The Queen (2007) 230 CLR 599; [2007] HCA 30 (at [113]) the High Court expressed the test as being whether it was "open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the applicant's guilt" (emphasis in original). (See also The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden-Clay); Fennell v The Queen [2019] HCA 37; (2019) 373 ALR 433; at [82], where the approach to such an assessment in a circumstantial case was explained.) 3. When considering whether a verdict is unreasonable, the Court is to make its own independent assessment as to the sufficiency and quality of the evidence. The question for the Court is whether, notwithstanding there is evidence upon which a jury might convict, it can be said that it would nonetheless be dangerous in all the circumstances to let the verdict of guilty stand (M at 492). 4. In Baden-Clay the Court noted at [47] that, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence". The evidence is not to be looked at in a piecemeal fashion (see Mulholland v R [2019] NSWCCA 257 at [68] per Ierace J (with whom Simpson AJA and Wilson J agreed); Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78 at [84] per Bathurst CJ, Johnson and Fullerton JJ, and Nweke v R [2020] NSWCCA 153 at [19] per McCallum JA, Davies and Button JJ, considering Baden-Clay at [46]-[48]). 5. It is not disputed that the burden of persuasion that appellate interference is required rests with the applicant (Mackenzie v The Queen (1996) 190 CLR 348; [1996] HCA 35 at 370 per Gaudron, Gummow and Kirby JJ, with whom Dawson and Toohey JJ agreed). 6. More recently, in Pell at [37]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ), the High Court made clear that the tests expressed in the above cases are essentially the same (at [45]). 7. Conscious of the need to undertake my own independent assessment of sufficiency and quality of the evidence, I have set out in some detail above the evidence that was adduced at trial. In my opinion, it was clearly open to the jury on that evidence to be satisfied beyond reasonable doubt that Mr Karmas died on 11 August 2011. Mr Karmas has not been seen since then, nor is there any record of him being alive after that date. Mr Karmas failed to honour social and other commitments in the days following 11 August 2011 and his disappearance was uncharacteristic. Police enquires and searches have produced no trace of him (other than the presumptive testing for blood on the DNA sample from the inside door of the applicant's van). 8. It was also in my opinion reasonably open to the jury to be satisfied beyond reasonable doubt that the applicant had murdered Mr Karmas on the afternoon of 11 August 2011 at the Wilga Street Property and later disposed of his body; and I am satisfied that the jury ought not to have entertained a reasonable doubt on that question. 9. The circumstantial evidence pointing to that conclusion is overwhelming; including the manner in which Mr Karmas left his personal items (keys) at the Karmas house, the doors unlocked, the shed door open and his ute and toolbox unsecured (which is inconsistent with Mr Karmas having intended more than a short absence from his home; and consistent with Mr Karmas leaving the house at a time when his daughter, Ms Sarah Karmas, was still at home). There is no dispute that Mr Karmas went to the Wilga Street Property in the applicant's blue van at about 2pm. The evidence of the applicant at the trial as to Mr Karmas' movements that afternoon was inconsistent with the account he gave to Mrs Karmas on 12 August 2011 (such as whether Mr Karmas had gone into the Wilga Street Property at all). There is no CCTV footage showing Mr Karmas returning from the Wilga Street Property on foot, as the applicant suggests he did; and the purported sighting of Mr Karmas by Ms Rifai (a 73 year old some 50-60m away) outside the Warwick Street Duplex at 2-3pm is not sufficient (given her age and the distance involved) to raise a reasonable doubt in that regard, particularly in light of the undisputed fact that Mr Karmas had travelled in the blue van to the Wilga Street Property at just before 2pm. Mr Cheong's account of events (in evidence as Ex AF and Ex BB) also does not raise a reasonable doubt in this regard because Mr Cheong was not in bedroom 2 of the Wilga Street Property on the afternoon of 11 August 2011 (albeit that Mr Cheong said he cleaned out and prepared bedroom 2 for renovation works the following morning on 12 August 2011 with the applicant). Nor does Mr Cheong's acquittal assist the applicant for the reasons explained by Dhanji J in considering grounds 4-5 below. 10. The accounts given by the applicant of the trip to Ms Robinson were inconsistent (such as his initial explanation that he was on the couch until 4am as opposed to his later evidence that he went out with Mr Woods for a period during that time); and the suggestion that the trip was to conceal evidence of cannabis use is fanciful in light of the content of the later intercepted telephone conversations between the applicant and Mr Woods and the temporal coincidence with Mr Karmas' disappearance. Moreover, the evidence as to the applicant's support for the proposition that other witnesses (Ms Robinson and Mr Lines) should stick to stories that provided some form of alibi for the applicant and/or Mr Woods is telling. 11. The evidence of Mr Spoto as to the lack of a smell of vomit when the car was left for him to be serviced on 12 August 2011 is telling when taken into consideration with the evidence of Mr Vramas and his employee as to the excuse given by the applicant for the van to be cleaned on 13 August 2011. This, taken with the coincidence in timing of the paintwork in bedroom 2 at the Wilga Street Property the day after the disappearance of Mr Karmas, strongly suggests an attempt to conceal evidence of his murder at that location. 12. The text messages from Mr Karmas' telephone (taken with the intercepted conversation about the "magic" that phones can work and the apparently mistaken belief that Ms Angeles worked or had worked at Westmead) are only credibly explicable as being an attempt to provide an explanation for Mr Karmas' disappearance which was inconsistent with the truth (and the applicant must have known of the text messages in order to make the statements he made to Mr Wood in the intercepted conversation). 13. The reliance placed by the Crown on the writings went largely as to motive but even if those writings were the unreliable product of a (by then) psychotic or delusional mind, there is ample other evidence to warrant the conclusion that the applicant had a firm belief before Mr Karmas' disappearance that Mr Karmas was involved in Nicholas Fantakis' death and that the applicant bore animosity towards Mr Karmas not only because of that deluded belief but also because he had acted as an intermediary between the applicant and Ms Angeles after Nicholas Fantakis' death (including the evidence of Mr George Karmas). 14. Thus, there is ample and sufficient evidence (leaving aside the admissions in the applicant's writings and the more vexed question of whatever be the real meaning of Ex AA) to conclude that it was reasonably open to the jury to be satisfied beyond reasonable doubt about the applicant's guilt. 15. The applicant has therefore not demonstrated that the verdict was unreasonable or unsupported by the evidence, and accordingly, this ground of appeal should be dismissed. Grounds 4-9 1. Grounds 4-9 have been considered by Dhanji J (see below) and, for the reasons his Honour gives, none of those grounds has been made good. Ground 10: Her Honour did error [sic] in law by including the foreperson in the ballot process, in contravention to Section 55(2)(a) [sic] of the Jury Act 1. On 11 May 2018, immediately prior to the jury retiring to commence deliberations, a ballot pursuant to s 55G of the Jury Act 1977 (NSW) (Jury Act) was conducted (see SU 178). The applicant contends that the trial judge erred in failing to exclude the jury foreperson from the ballot in contravention of s 55G(2)(a) of the Jury Act; and says that the trial judge did so with no legitimate basis "possibly causing unnecessary pressure on the dynamics of the jury", dynamics that the applicant says cannot be monitored or externally remedied. The applicant identifies this ground as a "narrow ultra vires as her Honour deliberately sought not to comply with a statutory procedure". 2. The Crown (to anticipate the Crown's submissions referred to below) says that the resolution of this issue depends, in part, on whether there was a jury foreperson at the relevant time but that, even if there was any error in excluding the jury foreperson from the ballot, the error is not one that undermines the constitution or integrity of the jury and the proviso should apply. 3. Section 55G of the Jury Act provides, relevantly, as follows: 55G Ballot where additional jurors on jury in criminal proceedings (1) If the jury in criminal proceedings consists of more than 12 persons (the expanded jury) immediately before the jury is required to retire to consider its verdict, the jury for the purposes of considering and returning the verdict (a verdict jury) is to be constituted by only 12 members of the expanded jury. (2) A verdict jury is to be constituted by – (a) if the expanded jury has chosen one of its members to speak on behalf of the jury as a whole (a foreperson) – the foreperson and 11 other members of the expanded jury selected by ballot, or (b) if there is no foreperson – 12 members of the expanded jury selected by ballot. (3) The ballot for a verdict jury must be conducted by the presiding judge or an officer of the court by – (a) placing in a box provided for that purpose the cards provided under section 28(3) for all of the members of the expanded jury (other than the foreperson, if any), and (b) drawing out of that box those cards, one after another, and calling out the identification numbers on those cards, until 11 or 12 persons (as the case requires) are selected. (4) A verdict jury continues to constitute the jury for the trial until the trial concludes unless the court has given a direction under subsection (5) … 1. By way of background to this complaint, it is not in dispute that, on 26 February 2018, a jury of 15 was empanelled in accordance with s 19(2) of the Jury Act and that, by 10 May 2018, the jury consisted of an expanded jury of 13 jurors (two jurors having been individually discharged during the course of the trial). 2. On 10 May 2018, in the absence of the jury and at the end of the second day of the summing up, the trial judge raised with Counsel the issue as to how the ballot provision under s 55G operated, noting that ordinarily there was an assumption from the fact that the same person was sitting in the same seat (i.e., that customarily occupied by the foreperson) every day that that person was chosen as the foreperson of the jury and that when the issue had arisen as to one of the jurors who had been discharged (for misconduct) the person in that seat had spoken for the jury (see SU 125). 3. The Crown Prosecutor and Counsel for the applicant (Mr Todd) indicated their view that the foreperson would automatically be out of the ballot and in the verdict jury; Counsel for Mr Woods (Mr Hughes) playing the role of devil's advocate raised for consideration the observation that it seemed incongruous with directions commonly given to juries that they could choose a foreperson and could change this at any time; and that all jurors were equal (SU 126). 4. The following morning (11 May 2018) the issue was revisited with Counsel in the absence of the jury and before the summing up continued. 5. The Crown Prosecutor remained of the view that the foreperson should be excluded from the ballot, saying (see SU 127) that: …it'd be my view that it appears that before there is a foreperson and she has been the foreperson through the trial and, in fact, when she came in to give evidence in relation to the other, should I say, recalcitrant juror, so it would be my submission that when your Honour completes the summing up that excluding the other person, the other cards go in the ballot and they're drawn out, the associate draws out 11 and the remaining juror is then told to leave or asked to leave. 1. The trial judge accepted that this was one interpretation, and might well be the accurate one, but expressed concern as to the issue that Mr Hughes had raised, pointing to two aspects to the direction given to the jury at the start: first, that the foreperson had no greater importance or responsibility (which her Honour considered would tend to stand rather awkwardly with s 55G) and, second, the fact that the jurors had been told that they could change their foreperson at any time (SU 127). The parties were given an opportunity to consider their positions further and the matter was adjourned to the following day. 2. Relevantly, her Honour expressed concern that to make an enquiry as to whether the jury had a foreperson (and explain why that enquiry was being made) would perhaps put an unhelpful burden on the jury because it could lead to discontent or disharmony in the jury room (i.e., if jurors were forced to say whether they wished the foreperson to stay or to be in the general ballot with everyone else). Her Honour raised the possibility that the reference to "if" in s 55G(2)(a) might be interpreted in a wide way, consistent with the standard direction to juries at the commencement of trials as to the role of the foreperson, to obviate the need to have what might be a divisive elevation of one juror over the others. Her Honour accepted that the same person had occupied the chair customarily used by a jury foreperson throughout the trial and had filled the role of foreperson when a spokesperson had been needed (that being a reference to the occasion on 3 May 2018 – see T 2563 – when the issue about intimidation by one of the jurors had arisen) but noted that there was nothing to say that the jurors would not at some point, indeed when they were constituted a verdict jury, change their foreperson (SU 128). Both Counsel for Mr Woods and Counsel for Mr Cheong saw force in the concern that there could be disharmony if one person were "elevated" by being excluded from the ballot. Counsel for the applicant (Mr Todd) expressed the opinion that it was a vexed question and the issue was left for further consideration. 3. The issue was again raised later that morning (see SU 166-168). Counsel for the applicant made reference to a report of the NSW Law Reform Commission which had recommended that the foreperson be excluded from the ballot as "it avoids the need to elect a new foreperson or speaker which could have a disruptive effect on the deliberations of the jury" (see SU 167) but expressed the concern as to the weight that the foreperson might then be deemed to have had by the other jurors (a concern that the trial judge shared). 4. Her Honour then said: I think subject to anything more any of you want to say, I'm inclined to just treat the foreperson as having been the foreperson up until now, but in common with the direction to the jury that they can change their foreperson at any time to proceed on the basis that we cannot be certain that the jury wishes to maintain the same person in that role and therefore we cannot be certain that the jury has chosen one of its members to speak on its behalf one [sic; presumably once] they're a verdict jury. They've certainly had someone to speak on their part as an extended jury, but on that basis, it seems to me there is room for doubt that they have chosen one of their members as the verdict jury, and on that basis proceed with all 13 numbers in the ballot box. Do you want to say anything about that, anybody? 1. Counsel for the applicant indicated that he did not wish to be heard against that proposal (as was also the position of Counsel for Mr Woods) (see SU 168). 2. At the close of the summing up, the ballot was held. The juror who had been seated throughout the trial in the customary seat of the jury foreperson (and who had affirmed on 3 May 2018 that she was the foreperson of the jury) was included in the ballot and it was she who was then excluded from the verdict jury as a result of the ballot. Applicant's submissions 1. The applicant submits that the legislation is clear and that there was no legitimate reason not to comply with the ballot process as mandated by the Jury Act. The applicant says that excluding the foreperson from the ballot would not have prevented the verdict jury from re-electing another person from the deliberation process and that her Honour's "finding" ([sic]) "were without foundation and unreasonable". Complaint is also made as to the failure to furnish adequate reasons which may itself constitute an error of law (see the applicant's submissions at [1524]), though this is not an appeal ground per se. 2. The applicant further maintains that his position was that the foreperson should be excluded from the ballot ([1525]) and that written instructions or notes were provided to Mr Todd of Counsel seeking that the foreperson be excluded (from the ballot), including reference to a recent trial that had dealt with an identical scenario (see his submissions at [1536]). Those written instructions were not before the Court but the applicant professed a willingness to produce them if necessary. Insofar as the Crown asserts (in the Crown's submissions at [279]) that Counsel for the applicant did not wish to be heard against the proposal that the foreperson be included in the ballot (referring to SU 168.3), the applicant says that it is "plainly obvious" that his counsel refused to follow the applicant's written instructions that the ballot be conducted according to legislation (an issue that he identifies as raised in ground 18C(3) of the appeal – see [2352]-[2338] of the applicant's submissions). 3. The applicant maintains that the decision to include the foreperson in the ballot resulted in the removal of the elected foreperson from the verdict jury and that this triggered "an unnecessary shake up to the jury dynamic" as it forced the jury to elect a new foreperson ([1530]). 4. The applicant refers generally to authorities referred to by the Law Reform Commission (in particular, to Ng v The Queen (2003) 217 CLR 521; [2003] HCA 20 (Ng)) as recognising that there are good practical reasons for retaining a foreperson at the end of a trial, and particularly a long trial (see per Kirby J in Ng at [73]-[77]). In Ng, Kirby J said at [75], with respect to the Victorian equivalent to s 55G, that the "obvious reason for retaining the foreperson on the jury was that this would obviate the necessity of making a fresh choice at a very late stage in the trial". (The Crown points out that McHugh J at [17] in the same case observed that the policy behind the immunity of the foreperson from being balloted out was "not clear".) 5. The applicant's complaint is that, as there is not an entitlement "to know the goings on of the jury", the impact of her Honour's decision (i.e., that the person who had identified during the trial as the foreperson not being one of the verdict jurors as mandated by legislation) cannot be examined. 6. The applicant's position is thus that the decision to include the "foreperson" in the ballot was without any legitimate basis and was in contravention to the legislation. The applicant says that that this was not a discretionary decision and that her Honour was bound to follow the process mandated by the Jury Act (and for "good practical reasons" – adopting the language used in Ng). 7. The applicant relies upon this ground as a standalone ground of appeal which the applicant says warrants an order to quash the conviction and order a re-trial. Crown's submissions 1. The Crown points to the position taken by the applicant's counsel at trial, namely that it was appropriate in the circumstance of the case to proceed on the basis that it was not certain whether the jury wished to maintain the foreperson in that role and that it was therefore doubtful whether that juror was the foreperson for the purpose of s 55G of the Jury Act (noting that the term "foreperson" is not defined in that legislation). (As noted above, the applicant contends that this approach was contrary to his written instructions.) 2. The Crown submits that it was open to the trial judge to conclude that, as at 11 May 2018, it was not certain that the jury had chosen one of its members to speak on its behalf; and therefore that there was not a foreperson at that time. It is submitted that, in reaching that conclusion, the trial judge was well placed to make an assessment of the jury over the course of the trial and in particular as at 11 May 2018 (as, the Crown says, were trial counsel who the Crown emphasises concurred with the approach suggested by her Honour). The Crown submits that the applicant has not shown that it was not open to her Honour to conclude that there was not a foreperson at the time the ballot was conducted; and hence that this ground of appeal should be dismissed. 3. The Crown goes on to argue that even if it were to be concluded that the trial judge erred in failing to exclude the juror in question from the ballot, it is for the applicant to demonstrate that that error gave rise to a miscarriage of justice. It is submitted that it is of considerable significance that neither the trial judge nor any of the counsel involved in the trial (who again it is submitted were in the best position to judge the atmosphere at trial), apprehended that there was a real risk that the absence of the juror in question from the verdict jury would disrupt the jury's deliberations (and, indeed, that this possibility was explicitly considered and rejected). The Crown says that there is nothing in the manner in which the jury conducted itself during its deliberations insofar as their questions and requests are concerned that suggests that the jury was disrupted in any way by what occurred. 4. Further, and in the alternative, the Crown contends there was no substantial miscarriage of justice that arose from the way in which the ballot was conducted. It is submitted that, if it were to be concluded that the trial judge erred in failing to exclude the juror in question from the ballot, that is an error to which the proviso in s 6 of the Criminal Appeal Act should apply. It is submitted that an error (if it be an error) of the kind asserted does not amount to a fundamental failure to observe the requirements of the trial process (reference here being made to Katsano v The Queen (1999) 199 CLR 40; [1999] HCA 50 (Katsano) at [41] per Gaudron, Gummow and Callinan JJ). 5. The Crown refers to Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31 (Maher) where it was held that a failure to comply with a mandatory legislative provision relating to the constitution and authority of the jury may render the trial a nullity or involve such a miscarriage of justice as to require the conviction to be set aside. The Crown submits that, properly understood, the asserted error in the present case does not answer that description. 6. It is submitted that a common feature of Maher, and cases it considered (R v Smith [1954] QWN 49, R v Hall [1971] VR 293, R v Short (1898) 19 LR (NSW) 385 and R v Dempster [1924] SASR 299), is that the non-compliance with legislative provisions or mandatory procedures resulted in a person or persons sitting on the jury when not entitled to do so. 7. In Maher, two charges were added to the indictment after the jury had been sworn; the jury was not re-sworn and found the appellant guilty of one of the added charges even though it had not been sworn to try the issues on that count; and it was held in those circumstances that there was a failure to comply with mandatory provisions governing 'the constitution and authority' of the jury. Similarly, in Johns v The Queen (1979) 141 CLR 409; [1979] HCA 33, the accused challenged a juror; his counsel withdrew the challenge, purportedly overriding the accused's decision; the juror was not stood aside and was included in the jury; and it was held that the accused had been denied his right to challenge, the jury had accordingly not been constituted according to law and the trial was a nullity. 8. The Crown says that the same feature (that the non-compliance resulted in a person or person sitting on the jury when not entitled to do so) is replicated in cases which subsequently considered Maher. In particular, reference is made to R v Brown (2004) 148 A Crim R 268; [2004] NSWCCA 324 (Brown), where the jury included a juror who had not been duly summoned to attend on the particular day and who therefore was not entitled to be selected to serve on the jury; and R v Petroulias (2007) 73 NSWLR 134; [2007] NSWCCA 134 (Petroulias) where the jury which was empanelled included a juror who was disqualified from serving on a jury because he was subject to an order disqualifying him from driving a motor vehicle. 9. Reference is made to Smith v R (2010) 79 NSWLR 675; [2010] NSWCCA 325 it was held that a failure to discharge a juror in circumstances where there was a distinct possibility that the juror had engaged in misconduct which enlivened a mandatory requirement that they be discharged, amounted to a failure to comply with a mandatory provision relating to the "constitution and authority of the jury". The Crown says that, as in the abovementioned cases, the principle referred to in Maher was applied in circumstances where the failure to comply with a mandatory legislative provision or procedure was such as to undermine the integrity of the verdict. 10. The Crown says that, in contrast, in the present case the verdict jury was a jury comprising of twelve jurors, each of whom was eligible to be selected as a juror and who had been duly sworn. It is said that the jury returned a unanimous verdict in relation to the single charge against the applicant and did so in circumstances where a ballot was conducted in accordance with an approach endorsed by counsel for the applicant. The Crown says that the singular concern to which the requirement in s 55G(2)(b) to exclude the foreperson (if there is a foreperson) appears to be directed (namely, the avoidance of the possibility that the need to elect a new foreperson will have a disruptive effect on deliberations) was explicitly considered and rejected; and that there is no evidence that it materialised. 11. It is submitted that this was not a case in which the asserted non-compliance with a legislative provision resulted in a person sitting on the jury who was not entitled to do so; nor could it be said that the asserted non-compliance otherwise undermined the integrity of the verdict. Thus, the Crown submits that the decision of High Court in Maher does not preclude the application of the proviso in this case. 12. It is noted that while this Court has also observed that there is no room for the application of the proviso in circumstances where there has been a failure to comply with (mandatory) statutory prerequisites in s 55F(2), that is because those provisions involve an abrogation of a fundamental common law right to a unanimous verdict. The Crown says that the asserted non-compliance in the present case is of a markedly different character. Reference is made to the observation of McHugh J in Ng, that the foreperson ordinarily does no more than pronounce the jury's verdict and regularise the jury's discussion of the issue. It is noted that there is nothing to stop the jurors changing the foreperson as often as they like; and that s 55G itself contemplates that the possibility that there may not be a foreperson at all. 13. The Crown contends that the evidence against the applicant (which has been considered in detail earlier in these reasons) was compelling (pointing to: the evidence of motive; that the applicant was the last person to see Mr Karmas alive; the circumstances in which Mr Karmas left his house and fact that his glasses were found in the applicant's van; the finding of Mr Karmas' DNA on the applicant's vehicle (noting the improbability of the explanation proffered on behalf of the applicant); the evidence as to the four text messages sent from Mr Karmas' phone to Ms Angeles on 11 August 2011; the supporting the conclusion that the applicant (and Woods) disposed of Mr Karmas' body in the early hours of 12 August 2011; other evidence of admissions made by the applicant; and evidence that the applicant had demonstrated, both by lies and conduct, a consciousness of his own guilt); and submits that this is a matter in which this Court can rely on the jury verdict (referring to Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [43]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 (Hofer), which affirmed the decision of this Court in Hofer v R [2019] NSWCCA 244). 14. Accordingly, the Crown submits that, even if Ground 10 were to be made out, the appeal ought to be dismissed on the basis that "no substantial miscarriage of justice has actually occurred" within the meaning of s 6(1) of the Criminal Appeal Act. Determination 1. The difficulty with the proposition put by the Crown to the effect that it was open for the trial judge to conclude that there was doubt as to whether there was a foreperson at the time that the ballot was conducted is not simply that the same person had occupied the chair customarily used by a jury foreperson throughout the trial but, significantly, that this person had affirmed on 3 May 2018 that she was the foreperson (see T 2563.5-7) when the issue as to intimidation by a jury member had arisen (see at SU 125). 2. It is sufficiently clear that, as at 3 May 2018, the jury had chosen a foreperson as at the time of the ballot; and while it may well be correct to say that there was nothing to say that the jury had not chosen to elect a new foreperson after that time, there was also nothing to indicate that it had. There is therefore a difficulty in proceeding on the basis that, because the jury had the power to change their foreperson at any time during the trial, the Court could not be certain that the jury wished to maintain the same person in role of the foreperson (and therefore the Court could not be certain that the jury had chosen one of its members to speak on its behalf once they became a verdict jury). Indeed, whether the jury could change its chosen foreperson focuses on the wrong issue – the question is whether "the expanded jury has chosen one of its members to speak" (see s 55G(2)) and here the jury had clearly done so (and had given no indication that this had changed). 3. In any event, if there was any doubt as to whether the jury had a foreperson at the relevant time, one course open to her Honour was to make an enquiry of the jury as to whether they had a foreperson before the ballot was to take place. The trial judge declined to adopt this course on the basis that it would require an explanation to the jury as to why the enquiry was being made, which would potentially place some burden or create disharmony in the jury "if they were forced to say that they'd like their foreperson to stay or they'd like their foreperson to be in the general ballot with everybody else" (see at SU 127). Even assuming that such an explanation would have been required, or that the enquiry would have had the potential consequence of creating such a burden, such a concern does not provide a basis upon which to depart from the process mandated by s 55G by drawing an inference (contrary to available evidence) that no foreperson was chosen by the jury. 4. In this regard, while I cannot accept the applicant's criticism as to the lack of a "foundation" for the course that was chosen or that there were unreasonable findings (since it is abundantly clear from the concerns expressed by the trial judge and shared by the various counsel appearing at the trial that disharmony on the jury, with a disruptive effect on deliberations, might arise if the person who had been identified on 3 May 2018 as the foreperson were to be excluded from the ballot), the difficulty in the course that was adopted is that the clear legislative intention as expressed in s 55G is that if an expanded jury has chosen one of its members to speak on behalf of the jury as a whole (as a foreperson) then that person is not to be included in the ballot required to determine the constitution of the verdict jury. 5. That legislative intention is reflected in the relevant extrinsic materials, including the report of the New South Wales Law Commission, Jury Selection (2007 NSWLRC 117) and the second reading speech of Mr Barry Collier as to the Jury Amendment Act 2007 (NSW) (7 November 2007), both of which explain that the purpose of the provision is "to avoid the need for another foreperson to be elected" (which it is suggested in the Jury Selection report could have a disruptive effect on the deliberations of the jury). 6. Thus, there was an error in the manner in which the ballot was conducted. The question that arises is as to the consequence of that error. 7. As noted above, the Crown contends that, even if her Honour was wrong not to exclude the foreperson from the ballot, the appellant has not established the error was such as to amount to a "miscarriage of justice" in the sense it operated to his detriment. However, in accordance with cases such as Maher and Katsano, it appears that some irregularities will constitute a wrong decision on a question of law, or a miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act, without the need to consider whether the error operated to the prejudice of the appellant. As those cases demonstrate that there will be cases where an error or irregularity will give rise to a substantial miscarriage of justice even though it has not affected the verdict (cf Hofer at [41]; [102]). 8. In cases such as Maher and Katsano (and also the present), the question may be seen as being whether there has been, in the relevant sense, a "verdict of the jury" at all, that question being resolved by whether there was a jury constituted as mandated by the relevant statute. If not, there is no question but that there has been a substantial miscarriage of justice on the basis of a failure to observe a fundamental requirement of a criminal trial. As was said in Katsano at [35]: 35 At one level, the decisions in Maher and Johns are concerned with failure to comply with mandatory legislative provisions relating to the constitution and authority of the jury. At another, as is clear from the judgment of the Court in Maher, they are concerned with "failure to observe the requirements of the criminal process in a fundamental respect", of which the failure to observe mandatory provisions relating to the constitution and authority of the jury is but an example. A conviction simply cannot stand if the trial process is flawed in a fundamental respect. [Citations omitted] 1. The question then is whether the error in the present case is one to which the proviso can be applied, or whether it is "fundamental" and thus, in the statutory language, amounts without more to a "substantial miscarriage of justice". 2. This Court in Brown noted (at [49]) that a strict approach has been adopted in this country with respect to whether a failure to comply with provisions governing the constitution and authority of the jury will result in the trial becoming a nullity. To this end, I note the observations made by Mason CJ, Wilson J, Brennan J (as his Honour then was), Dawson and Toohey JJ in Maher at 233, (the Court there considering the Jury Act 1929 (Qld)): The provisions of the Jury Act and of the Code which govern the constitution and authority of the jury as the tribunal of fact in a criminal trial are mandatory, for the entitlement to trial by jury which s.604 of the Code confirms is trial by a jury constituted in accordance with the Jury Act and authorized by law to try the issues raised by the plea of not guilty. A failure to comply with those provisions may render a trial a nullity, at least in the sense that the conviction produced cannot withstand an appeal: see Crane v Public Prosecutor (1921) 2 AC 299. In any event it involves such a miscarriage of justice as to require the conviction to be set aside. 1. It may also be noted that in R v Petroulias (No 32) [2007] NSWSC 1302, Johnson J at [15] drew attention to the fact that, upon the commencement of the Jury Amendment Act 2007 (NSW) and the operation of s 55G of the Jury Act the position of the foreperson took "on a statutory form". 2. Nevertheless, a majority of the High Court (Gaudron, Gummow and Callinan JJ) subsequently held in Katsano at [41] that "not every legislative provision is a mandatory one" and said that, in respect of the Juries Act 1967 (Vic), "[s]ome of its provisions are clearly mandatory (eg, ss 14 and 17, dealing with the number of jurors, and ss 20 and 23, dealing with random selection)" (at [42]), thus leaving open the possibility that non-compliance with the Jury Act might not always undermine the integrity of the verdict. It is also relevant to note that the majority in that case drew a distinction between complaints that the jury panel was not properly constituted (in the sense that there was non-compliance with mandatory procedures which resulted in a person or persons sitting on the jury when not entitled to do so) and complaints that a particular person was not a member of the jury finally chosen, only the former of which resulted in the trial becoming a nullity (see at [43]). 3. Having regard to those authorities, I accept the Crown's submission that the error is one to which the proviso in s 6 of the Criminal Appeal Act applies. In Crane v Director of Public Prosecutions [1921] 2 AC 299, cited above with approval by the High Court in Maher, Lord Sumner equated a miscarriage of justice in that case with the deprivation "of the protection given [to the accused] by essential steps in the criminal procedure" (see at 331). If a miscarriage of justice is understood in this way, it cannot be said that such a miscarriage was occasioned by the trial judge's error. In Maher, the failure to observe the requirement of the criminal process to have the jury sworn to try the issues on every count was fundamental because it was a precondition to the jury's capacity to deliver a verdict. Similarly, in Tabalbag v R (2016) 258 A Crim R 240; [2016] NSWCCA 48 (to which the Crown makes reference in its submissions), the Court found that compliance with the eight hour period prescribed in s 55F(2) is an essential procedural step that must be taken before the next step of giving a majority verdict direction (see at [61]). By contrast, the exclusion of a foreperson from a ballot does not have the quality of a precondition for a properly constituted jury. Despite s 55G it remains the case that no one juror has any greater rights than any other. Given that an accused has no right to have a particular person on his or her jury (as opposed to a right to exclude a prospective juror), the exclusion of the foreperson did not have the result that the jury which resulted was not a properly constituted jury. My view in this regard is strengthened when regard is had to the fact that s 55G does not require the jury to choose a foreperson before the ballot takes place; indeed, the provision expressly contemplates a situation in which the jury has not made a choice of a foreperson. Further, it cannot be said that the purpose of excluding the foreperson pursuant to s 55G is to provide the accused with any protection or procedural fairness; while the extrinsic materials suggest that the purpose is to facilitate the jury's task, McHugh J noted at 528 in Ng that the policy behind the exclusion of the foreperson is not clear. 4. Maher may be further distinguished on the basis that here the applicant was not deprived of his right to object to the course taken at trial by the trial judge. At SU 167-168, as noted above, Counsel for the applicant at trial agreed with her Honour's approach and did not make any objections when given the opportunity to do so. 5. The present case is more like Katsano than Maher (or Brown). In terms of the description in Katsano at [43], the present case is one where the complaint "is not that the jury panel was not properly constituted but that a particular person was not a member of the jury finally chosen". 6. Accordingly, Maher does not preclude the application of the proviso in this case. The fact that the foreperson was not excluded from the ballot was not such a departure from a mandatory provision relating to the authority and constitution of the jury as to deny the constitutionality of the applicant's trial. That is another way of saying that the error did not involve such a departure from the requirements of the trial as to lead to the conclusion that there was, as a result of the error without more, a substantial miscarriage of justice. The enquiry required by the proviso is as to the "tendency or propensity" of the error "to have affected the basis on which the trial jury actually reached its verdict in the totality of the events that occurred in the trial that was had" (see Gageler J in Hofer at [121].) In the present case, the error had no such impact. 7. Ground 10, though the error has been established, does not therefore result in the relief here sought by the applicant. Ground 11: The accumulation of errors caused the trial to miscarry 1. This ground is in effect an overall miscarriage of justice ground predicated on the accumulation of asserted errors that have been dealt with in other grounds; and was only briefly addressed in submissions by the applicant (see at [1540]-[1542] of the applicant's submissions dated 3 May 2021, albeit there treating this as ground 10 and stating that it is relied upon as a standalone ground of appeal warranting an order quashing the convictions and having the matter reheard according to law – a formulation adopted by the applicant in his submissions in respect of numerous other grounds). 2. Reliance is placed on The Queen v Ireland (1970) 126 CLR 321; [1970] HCA 21 for the proposition that, even if any one ground of appeal is not sufficient, an accumulation or aggregation of errors might nevertheless be enough to result in a miscarriage of justice. Determination 1. Having regard to the conclusions reached on the remaining grounds, this ground 11 takes the matter no further. Ground 11 is not made good. Ground 12: Her Honour failed to give a fundamental direction to the jury of the need to separate the evidence between the two conflicting hypotheses relied upon by the Crown 1. This ground of appeal is related to the complaints raised as to the conflicting case theories identified by the applicant (and has been considered in relation to various of the other grounds of appeal raised by the applicant). Reference in particular is made by the applicant to the matters addressed in support of ground 3 (at [44]-[51], [123]-[157] of his initial submissions) as well as the matters raised in his amended submissions in addressing this ground. The applicant's complaint is that the trial judge failed to provide a necessary direction to the jury that certain evidence attached to the first case theory had to be separated when assessing the "5 o'clock theory", as the two alternate hypotheses were conflicting and could not stand together. The applicant maintains that such a direction was fundamental to prevent a real risk that the jury would take an impermissible path of reasoning; and says that, on that basis, leave should be granted pursuant to r 4.15. 2. The applicant maintains that it was incumbent on her Honour to direct the jury that the evidence in support of the "conjunction proposition" (here referring to that identified in the Crown's submissions at [72]), had to be put to one side when assessing the 5 o'clock proposition. The applicant says that, more importantly, the jury needed to understand that the 5 o'clock proposition had to be assessed on the basis that the accused were not sending the text messages between 3.57pm and 5.26pm (saying that the 5 o'clock proposition is formulated on the basis that Mr Karmas is still alive at 5.00pm). The applicant says that the Crown does not contest the applicant's position that each theory had to be assessed with different evidence (seeking only to rely on the fact that counsel who appeared for the applicant did not seek such a direction). 3. The applicant maintains that the two case propositions were mutually exclusive and that the jury was misled to the effect that the jury could use the same evidence for both propositions "assuming that the two theories were alternate case theories". 4. The applicant maintains that he thereby lost a real chance of acquittal, asserting that the direction had to be given by her Honour even though it was not asked for (referring in this context to Mortada v R [2014] NSWCCA 36 at [81] per Leeming JA, Hall and Schmidt JJ). 5. In his amended submissions, the applicant sets out the two case theories (see at [1547]-[1550]; and [1551]-[1552]). The first case theory is that Mr Karmas was murdered between 1.50pm and 3.07pm on 11 August 2011 by the applicant in the presence of Mr Cheong; and, essentially, the "conjunction proposition" is said to be that text messages sent from Mr Karmas' phone on 11 August 2011 were not sent by Mr Karmas, as he was already murdered; and were sent by Mr Woods at the behest of the applicant to give a false application that Mr Karmas was still alive. The second case theory is the so-called 5 o'clock theory (that Mr Karmas left the Wilga Street Property soon after 2pm and returned at or soon after 2pm and was then murdered by the applicant). 6. The applicant says that on the second case theory the conjunction proposition (that Mr Karmas did not send any of the text messages in question) cannot be taken into account. Further, the applicant contends that the substantial evidence led by the Crown in support of the conjunction proposition had to be put to one side by the jury before assessing the 5 o'clock case theory. 7. In this regard, the applicant also cavils with the Crown's submission (at [300]) that the Crown did not lead any evidence or rely on any argument that any of the accused obtained Mr Karmas' mobile handset between 3.57pm and 5.00pm in order to have sent the initial text messages (referring to the direct evidence given by the Karmas family, evidence from the optometrist, Mr Yeo, and the cell tower evidence tendered against Mr Woods (see footnote 263 to his submissions at [1550])). 8. The applicant says that it was paramount that the jury be directed that the evidence attached to the conjunction proposition had to be put to one side when assessing the 5 o'clock proposition; and that it would have been relevant to direct the jury that the evidence supporting the conjunction proposition negated the 5 o'clock proposition. The applicant argues that the failure to give the direction meant that the jury had been misled or mistaken on a relevant issue and that therefore the verdict was unsafe and unsatisfactory. 9. The applicant refers to the evidence of Detective Sergeant McGee (T 2184), who it is said conceded that there was no evidence to prove that Mr Woods actually took possession of Mr Karmas' mobile handset, or that Mr Woods physically sent those messages. In other words, the applicant says that it was either Mr Karmas or someone he met after leaving the Wilga Street Property (other than the applicant) who was sending the messages between 3.57pm and 5.27pm on 11 August 2011. 10. The applicant emphasises that if Mr Karmas was sending those messages between 3.57pm and 5.27pm then the telco records confirm the impossibility that Mr Karmas could have returned to the Wilga Street Property at or soon after 5.00pm (as the phone "pinged" at Wentworthville at 5.27pm). The applicant says that if it was someone else, other than the accused, sending those text messages, then the applicant has an alibi conclusive of innocence. 11. As noted, the applicant contends that the jury was misled that they could use the same evidence for both propositions assuming that the two theories were alternate case theories. Rather, the applicant says that both propositions were mutually exclusive and had to be assessed as separate counts (and also requiring separate verdicts). It is submitted that this has caused the verdict to be unsafe and unsatisfactory as the jury were misled or mistaken on an essential issue before the jury was asked to find facts on the established evidence; and that as the jury was not directed to the correct path of reasoning the applicant did lose a chance of acquittal. Reference is made in this context to Domican v The Queen (1992) 173 CLR 555; [1992] HCA 13 (Domican) per Brennan J, as his Honour then was, at 570-571 as to the application of the proviso to s 6(1) of the Criminal Appeal Act: The general principle is this: where, on the evidence and consistently with the directions of the trial judge, it is open to a jury to convict on any of two or more independent bases, a misdirection or an inadequate direction which would vitiate a conviction on one of those bases necessarily results in the setting aside of a guilty verdict despite the availability of another sound basis for conviction. That is because it is not possible to conclude that a guilty verdict has been founded on a sound basis when it was open to the jury to convict on a basis affected by the misdirection or inadequate direction. A Court of Criminal Appeal cannot apply a proviso by speculating either that the jury acted on a body of evidence which was unaffected by the misdirection or inadequate direction; nor can the Court speculate that, if the jury had acted on such evidence, they would have convicted. If a misdirection or inadequate direction would vitiate a conviction based on identification evidence and that basis of conviction was open to the jury, it is impossible to be satisfied that, by reason of the misdirection or inadequate direction, the accused did not lose a chance of acquittal. 1. The applicant says that the proviso is inapplicable and that the compounding improbabilities "which could not be excluded by the Crown, combined with the sole reliance on the uncorroborated delusional writings" warrant orders for an acquittal as it is said that this case could not succeed in the event of a re-trial (see [1571]). 2. The applicant thus maintains that in the present case it is possible that the jury arrived at its verdict on an unsustainable theory (the 5 o'clock theory) that was improperly and unfairly pressed by the Crown relying upon uncorroborated evidence (the writings) that the Crown submitted as being unreliable and lacking credibility. Reference is made to Tran v R (2000) 105 FCR 182; [2000] FCA 1888 (Tran) in this context. Crown's submissions 1. The Crown complains that the applicant has not identified with any precision the "fundamental direction" which he now asserts ought to have been given (cf Greenhalgh v R [2017] NSWCCA 94 (Greenhalgh) at [21] per Basten JA, with whom Button and N Adams JJ agreed); and the Crown emphasises that such a direction was not sought at trial by the experienced counsel who appeared on behalf of the applicant. 2. As to the "conjunction proposition" (i.e., the applicant's submission that the jury ought to have been directed that, if they concluded that it was reasonably possible that Mr Karmas had left the Wilga Street Property shortly after he arrived at 1.52pm and did not return until at or about 5pm (as the applicant's writings suggested), it would necessarily follow that Mr Karmas, and not the applicant or someone acting on his behalf, was responsible for sending the four text messages to Ms Angeles between 3.57pm and 5.26pm, and that the jury must therefore put to one side evidence relied upon by the Crown to establish that Mr Karmas did not send those messages), the Crown points out that this submission appears to assume that, if the jury found that Mr Karmas was still alive at 5pm on 11 August 2011, then Mr Karmas must have been the author of the messages sent by his phone. 3. The Crown says that such a submission involves a substantial oversimplification of the Crown case and ignores the nature of the evidence that the Crown relied upon to prove that Mr Karmas was not the author of the messages (and that the messages were instead sent by Mr Woods with the applicant's knowledge and at his behest). Thus, the Crown maintains that the assumption that underlies the applicant's submissions is unfounded. 4. Insofar as the applicant further asserts that "it would have been relevant to direct the jury that evidence supporting the conjunction proposition did negate the 5 o'clock theory" (see his submissions at [1555]), the Crown points out that this matter was addressed in submissions by Counsel for the applicant at the trial but a direction in those terms was not sought on the applicant's behalf at trial. The Crown says that this would have only served to highlight the importance of that body of evidence and how compelling it was to proof that Mr Karmas had been murdered (by the applicant) prior to the first message. 5. The Crown submits that the applicant has not established that the absence of the direction for which he now contends constitutes either legal error or a miscarriage of justice; that leave under r 4.15 should be refused, or alternatively, in the event that leave is granted, this ground of appeal should be dismissed. Determination 1. Consideration of issues relating to the two case theories has been addressed by Dhanji J in respect of grounds 4 and 5 (see below) and in the context of the consideration of ground 3 above. I agree with Dhanji J's reasons for concluding that there was no miscarriage of justice in relation to the way in which the case was left to the jury in relation to the two windows of time within which the murder might be said to have occurred and with the conclusion (see at [895]) that it was open to the jury to conclude that the murder occurred within the first window of time. As to the so-called conjunction proposition, error has not been established arising out of the trial judge not having directed the jury to the effect that it must not take into account the text messages when or before assessing the 5 o'clock case theory. It does not necessarily follow from a conclusion that Mr Karmas had left the Wilga Street Property shortly after he arrived at 1.52pm and did not return until at or about 5pm, that the text messages were sent by Mr Karmas. As the Crown notes, there was evidence as to the implausibility of those messages having been sent by Mr Karmas even if he were still alive at that time. 2. Moreover, a direction of the kind for which the applicant now contends (concerning the so-called 5 o'clock case theory or conjunction proposition) was not sought by counsel for the applicant (as one would expect would have been sought had it been perceived that it was advantageous or necessary for the applicant for such a direction to be made). In those circumstances, no miscarriage of justice has been shown. This ground of appeal is not made good. Ground 13: The trial miscarried as her Honour wrongly admitted a number of documents, including: a document seized from the applicant's vehicle (Ex AA: the "Georges River Note") and the writing and video evidence seized from the applicant's home. 1. This ground relates to evidence admitted over the objection of the applicant. On 22 February 2018, the trial judge heard on the voir dire evidence and submissions on an application brought by the applicant for the exclusion of that evidence pursuant to s 90 or s 137 of the Evidence Act. (It is relevant to note that there was no application on that occasion or at the trial for the exclusion of that evidence pursuant to s 138 of the Evidence Act; cf the submission now advanced in respect of the Georges River Note.) 2. On 26 February 2018, for the reasons set out in the Admissibility Judgment, her Honour held that the evidence the subject of the present complaint was admissible and should be admitted. Georges River Note – Ex AA 1. Turning first to the Georges River Note (which has been referred to above – see at [114]), this is a handwritten note, written on a single piece of lined paper, which the police discovered in a blue diary that had been located inside the applicant's blue Transit van that was seized by the police on 13 August 2011. The original note was tendered and marked Ex AG, while a copy of the note was tendered and marked Ex AA (the applicant's submissions refer variously to Ex AA and Ex AG but nothing turns on this). 2. It was the Crown case that the note set out what the applicant planned to do to Mr Karmas and that other evidence (including evidence of the applicant's movements on 11, 12 and 13 August 2011; lies the applicant told about his movements, various admissions made by the applicant; and the evidence of Professor Fitzpatrick in relation to the soil samples recovered from the applicant's blue Ford transit van) supported a conclusion that the applicant had disposed of the body of Mr Karmas and that he most likely did so in a manner consistent with the note. 3. The applicant claimed in his evidence at trial that the Georges River Note was never in his van; that it was in the garage at the Wilga Street Property with two other pages and that he wrote it after seeing a spiritual healer following his brother's death. The applicant does not suggest that the Georges River Note was not in his handwriting. The Crown points out that, when asked at the trial whether he was suggesting that the Georges River Note was "planted", the applicant did not give a direct response (cf his submissions on the present application); and the Crown notes that it was not suggested to any of the officers who were involved in finding the note that it had been planted. Applicant's submissions 1. The applicant says that on a closer inspection what is actually written on the Georges River Note is not (as was recorded at [13] of the Admissibility Judgment): … wrap in black cotton sheet and tie with black ribbon (shoe lace) tight and through [sic; throw] in the river (Georges River) but, rather, was: Imagine all nasty into black, wrap in black cotton sheet and tie with RIBBON (shoe lace) tight and through in the river (Georges River) [Emphasis added in applicant's submissions] 1. The applicant submits that the Georges River Note had no probative value (see his submissions at [1185]) (elsewhere saying that it was speculative and of "very little probative value"); and that any probative value would be outweighed by the prejudice of raising a case theory that took up a substantial period of the Court's time "to convince the jury of a proposition that was without foundation'" (see the applicant's submissions at [1592] and [1623]); and hence that it should have been excluded pursuant to s 137 of the Evidence Act (see the applicant's submissions at [1622] and [1681]). 2. The applicant says that the prosecution's interpretation or reliance on this note (to infer that it described the method utilised by the applicant to dispose of Mr Karmas' body in the Georges River) was without any foundation. The applicant says that the note had no nexus to the disappearance of Mr Karmas (and "no real nexus to the proposition that Mr Karmas had been disposed of in the Georges River") (see the applicant's submissions at [560]-[583]; [1604]). In this regard, the applicant points out that the note makes no mention of Mr Karmas nor of "anything sinister" (such as the disposal of a body); and the applicant argues that the reference to the wrapping of something with a ribbon is an unlikely process in the discarding of a large body (see his submissions at [1586]). 3. The applicant maintains that the theory that Mr Karmas was disposed of in the Georges River was not corroborated with evidence in the prosecution brief or received by the Court during the trial. The applicant refers to evidence from the police experts to the effect that a body would need to be heavily weighed down or it would float to the surface (and what would be required to submerge a body and keep it from floating to the surface) and the applicant points out that this "critical process" (i.e., the weighing down of the body) is not included in the note or in any other evidence discovered during the investigation. The applicant argues that if the note amounted to instructions as to how to dispose of the body, then the body of Mr Karmas would inevitably have been found floating. It is said that the reference in the note in closed brackets to the Georges River was to provide an example of a river; and that the reference to a shoe lace, also in closed brackets, was an example of an alternative to the use of a ribbon. The applicant maintains that this was a "speculative note" that was taken out of context (see his submissions at [1593]); and that it was of very little probative value. 4. Complaint is made that, by allowing the admission of the Georges River Note, the Crown was permitted to lead a substantial quantity of evidence against the applicant that was "totally speculative and of very little probative value" (see his submissions at [1598]; the applicant referring in this context to evidence from the soil expert, Professor Fitzpatrick, that soil found under the mud guards of the applicant's vehicle may have come from the Georges River region). 5. As adverted to above, in these submissions (though not in his evidence at trial) the applicant's contention is that the Georges River Note was "planted" by police in his diary (see, for example, his submissions at [508]; [1599]; [1603]); and it is said that a false and misleading statement was generated by the police in relation to the search of the applicant's vehicle, including the discovery of the blue diary (see the applicant's submissions at [540]-[559]; [1600]). The applicant's evidence at the trial was that the Georges River Note was the last page of a larger document and was taken out of context; and, as noted above, that it had nothing to do with the disappearance of Mr Karmas (see the submissions at [560]-[583]; [1604]); and that the Georges River Note was located at the Wilga Street Property. (This is related to the complaint in ground 14 as to the police investigations – see below.) 6. This ground of appeal is also related to ground 18 (as to incompetence of counsel) which is considered in due course (see below). 7. The applicant maintains that this evidence should have been excluded pursuant to s 138 of the Evidence Act on the basis that the evidentiary foundation of the evidence was thin and any probative value it may have had would be outweighed by unfair prejudice; and that it should have been excluded pursuant to s 137 of the Evidence Act (and the applicant accuses defence counsel of acting with ineptitude by not utilising evidence during the cross-examination of the four officers involved in the discovery of this evidence – see the related submissions in respect of ground 18 below). 8. The applicant refers to the references in the trial judge's sentencing judgment (see R v Fantakis; R v Woods [2018] NSWSC 1700 at [34]) to the effect that her Honour was satisfied to the requisite standard that the Georges River Note was found in the blue van owned by the applicant and was undoubtedly written by him, and that it is a reference to the concealment of Mr Karmas' body; from which the applicant draws the conclusion that the Georges River Note was obviously of fundamental importance to the Crown's case against the applicant. The applicant also refers to [35] of the sentencing judgment, where her Honour said that: The offender Fantakis' evidence about Ex AG being notes concerning a ritual that a wise woman had recommended to him, is evidence that, from observing the offender as a witness, I regard as a series of patent and transparent falsehoods. These lies themselves provide some support for my conclusion about the meaning of what is recorded on the note. [Emphasis as per the applicant's submissions] 1. The applicant draws from this passage of the sentencing reasons that the failure of counsel to address this issue (see ground 18 below) had a serious impact on the applicant's credibility (saying that it cannot be said that the jury did not take the same view of the applicant's evidence as did her Honour). Thus, the applicant contends that the admission of the "note" and the supporting evidence (which he describes as a major theme of the Crown case), occasioned a miscarriage warranting a retrial (see the applicant's submissions culminating at [1625]). 2. For those reasons, the applicant submits that the trial judge was wrong to admit the Georges River Note (on the basis that its probative value was far outweighed by the prejudice of its admission) and, further, contends that the trial judge failed to provide adequate reasons for its admissibility (see [1681] of his submissions). Crown's submissions 1. The Crown says that the applicant's argument in relation to Ex AA is misconceived for a number of reasons. First, the Crown says that the fact that the Georges River Note did not mention Mr Karmas by name or make reference to the disposal of a body did not deprive the Georges River Note of its probative value. Second, the Crown says that the admissibility of the other evidence relied on by the Crown (such as the soil sample evidence summarised in the Crown's submissions at [73]-[86]) was not predicated on the admissibility of the Georges River Note. Third, the Crown argues that the suggestion the Georges River Note took up a substantial period of the Court's time (because of that other evidence) is misconceived. Further, the Crown says that the applicant has misstated the nature and extent of the searches made of the Georges River. 2. Insofar as the applicant asserts that the Georges River Note was planted by police (see his submissions at [1599]), the Crown says that the evidence does not support that assertion and (as noted above) that defence counsel for the applicant did not advance such a suggestion at trial. 3. Thus, the Crown contends that Ex AA was not wrongly admitted (and nor was Ex AG wrongly admitted). Writing and Video Evidence 1. Turning then to the "writing and video evidence" that the applicant contends was wrongly admitted, this relates to evidence seized from the applicant's home on 7 June 2013 (Exs CE, CF, CG, CH, CJ, CK, CL and CM). It was not ultimately in dispute that the applicant was the author of the relevant documents and that he had made the recordings. 2. The Crown sought the admission of this evidence as admissions by the applicant to murdering Mr Karmas and disposing of his body. The applicant sought the exclusion of this evidence again pursuant to ss 90 or 137 of the Evidence Act on the basis that the purported admissions were unlikely to be reliable (relying on the evidence of Dr Saker) and that to admit them would be unfair to the accused. This application was dealt with by the trial judge in her Admissibility Judgment. The trial judge dismissed the application. 3. As to the application made under s 90, the issue of reliability of the admissions was in the context of whether the seized materials represented truthful admissions as opposed to representations that were the product of fantasy or delusion (since it was accepted that the applicant was the author of the materials). The Crown points to the recognition by the trial judge in the Admissibility Judgment (at [56]) that "[u]nreliability is certainly material to consideration of fairness or unfairness but, whilst it may be a 'touchstone' of unfairness, it is not the sole consideration", her Honour citing The Queen v Swaffield (1998) 192 CLR 159; [1998] HCA 1 (Swaffield) at [54] per Toohey, Gaudron and Gummow JJ for this proposition. 4. The trial judge, having considered (from [14]-[34]) the evidence as to the applicant's mental state at the time of the making of the documents relied on as admissions, identified (at [50]) the relevant question as being whether the circumstances of the applicant's mental illness "extant to a greater or lesser extent at the time of making the admissions" was such that the truth of what was said could not be known, and it would be unfair to the accused to admit them. Insofar as the evidence of the applicant's mental state concerned the applicant's consultations with Dr Saker from November 2011 until January 2013, the Crown notes that that evidence is largely consistent with the evidence that was given by Dr Saker at trial. 5. The Crown notes that, on the voir dire (but not in evidence before the jury), when asked about a video recording made by the applicant, Dr Saker said that (speaking of the period of time in which he saw the applicant) any information that comes from the applicant "is highly unreliable as he has untreated persecutory delusions and has an extremely skewed view of reality''. However, Dr Saker accepted that a person who is subject to delusions is capable of making truthful statements. It is noted that Dr Saker did not have access to any of the prosecution material that would have permitted him to assess the validity of the concerns expressed by the applicant to him upon which that opinion was based (concerns which the Crown points out primarily related to the police investigation). The Crown notes that Dr Saker accepted that were it not for the fact that he had himself been summoned to attend the Crime Commission, he would have viewed the applicant's statement that he was being investigated by the Crime Commission as unreliable (see [66] of her Honour's reasons). 6. The trial judge observed (at [64]) that the jury would be asked to consider the whole of the evidence (which her Honour noted at [65] would include the evidence from Dr Saker and from Professor Greenberg, and which might be supplemented by evidence from other doctors); and her Honour was of the view that the jury would be able validly to conduct an assessment of the confessional statements and appropriately apportion weight to that evidence. (On the present application, the Crown emphasises that, in that respect, the jury was in a vastly superior position to Dr Saker in terms of the ability to assess the reliability of the admissions.) 7. Her Honour noted that the jury would also have before it other evidence which would inform and enlighten the assessment made of the confessional material (see [68]) and that the veracity of the admissions did not fall to be assessed in a vacuum. At [69], her Honour said that it would be open to the jury to conclude that the weight of the evidence to be called by the Crown supported the veracity of aspects of the confessions and was of the opinion that if that conclusion was one that was open it was a matter for the jury. Her Honour did not conclude that the admission of the evidence would involve unfairness to the accused, or that the jury would use the evidence or be affected by it in a way not permitted by law (citing Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7; at 528 per McHugh J). Accordingly, her Honour (at [70]) declined to exercise the discretion pursuant to s 90 in relation to this evidence. 8. As to the application pursuant to s 137 of the Evidence Act, her Honour did not reach any different conclusion (see at [71]). Her Honour considered that the probative value of the confessional statements, if accepted, was very high (see at [73]-[75]). As to the question of unfair prejudice, her Honour did not accept (as the applicant contended) that there was a danger that the jury would place too much weight on the evidence and fail properly to consider the whole of the case, or that, if such a danger existed, it was so significant as to outweigh the probative value of the evidence (see at [79]), noting that it would be open to the applicant to highlight the potential unreliability of the admissions (by pointing to the content of the admissions themselves, "much of it bizarre in nature", and by calling evidence from the doctors as to his mental state) (see at [80]); and that it was likely that a direction pursuant to s 165(2) as to the potential unreliability of the admissions would need to be given (see at [82]). 9. Her Honour considered that it could be argued that the chilling nature of some of the admissions could provoke an emotional or irrational response, but that this danger needed to be viewed in the overall context of the allegations (this being a murder trial) and in light of the directions which would ordinarily be given to jurors to consider the evidence dispassionately and without allowing emotion to sway them (see at [84]). 10. Her Honour concluded, balancing the probative value of the evidence against the danger of unfair prejudice to the applicant, that the evidence was not excluded by operation of s 137 (see at [85]). Applicant's submissions 1. The applicant here maintains the submissions made on the application to exclude this evidence as to the unreliability of the evidence in question, noting that it was acknowledged (and, the applicant says, demonstrated on the balance of probabilities) that the writings and video recordings were made by the applicant while suffering from psychosis. Reference is made to the statement by the trial judge in her sentencing judgment at [26] that: The detail of what is recorded as having occurred, which sometimes varied, is not evidence which can be accepted to the same high standard of proof as establishing precisely what happened to Mr Karmas. 1. As to the application pursuant to s 90 of the Evidence Act, the applicant says that her Honour erred in not having excluded the writings and video evidence because the unreliability of that evidence should have been the fundamental concern; and the effect such evidence would have on the fairness of the trial. 2. The applicant points to the recognition that common law principles relating to the admissibility of admissions by persons suffering from a mental disorder or disability are applicable to the relevant provisions of the Evidence Act (citing R v Donnelly (1987) 96 A Crim R 432 at 441 per Hidden J). Reference is made by the applicant to observations made in Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 (Em) by Gleeson CJ and Heydon J at 89 [56]; [72]-[73] and by Gummow and Hayne JJ at [109]; including observations in the joint judgment of Gleeson CJ and Heydon J to the effect that the reliability of evidence was a factor affecting the fairness of its use; and to observations of Gummow and Hayne JJ in that case. Reference is also made to the earlier decision of this Court (in R v Em [2003] NSWCCA 374) in which Howie J (with whom Ipp JA and Hulme J agreed) held at [110] that under s 90 the reliability of the evidence may be significant but that if its reliability is accepted then an assessment of the probative value has little significance in the exercise of the discretion (and that the primary judge had there erred in taking the lack of probative value of the evidence into account in exercising the discretion in favour of the Crown in that case). (It is noted that Howie J there also observed that the less probative weight that evidence has the less likely its admission is going to result in an unfair trial.) 3. The applicant submits that in the present case the unreliability of the evidence was substantial and that, combined with the highly prejudicial nature of the evidence, there was great risk that the trial would be unfair as the jury would attach undue weight to the evidence. The applicant points to the trial judge's recognition (at [76] of the Admissibility Judgment) of the proposition that '[p]rejudicial evidence will be unfairly so where there is a real danger of the evidence being misused in some way, or given more weight than it deserves". 4. The applicant submits that the feared misuse of this evidence became a reality, it being asserted by him that he was convicted solely on this evidence (i.e., the writings and video evidence) and that this was evidence that was uncorroborated with any other evidence before the Court. It is submitted that the jury must have given undue weight to this evidence (and that this is a true indication of the unfairness of it having been allowed into evidence; the unreliability of which being said to be supported by unchallenged psychiatric evidence). 5. The applicant also raises in this context complaints that the Crown relied upon this evidence only to "cherry pick admissions of violence against Mr Karmas" (referring to the Crown's opening submissions at the trial at T 126); and raises the complaint as to the advancing of the 5 o'clock theory (dealt with in relation to ground 3 above and ground 4 below), contending that the conduct of the Crown Prosecutor resulted in a significant denial of procedural fairness. 6. As to the dismissal by the trial judge of the application to exclude the evidence pursuant to s 137 of the Evidence Act, again the applicant submits that her Honour erred. The applicant contends that it was plainly wrong and unreasonable for the trial judge to conclude that there was no real danger of unfair prejudice in the admission of the evidence (as stated at [80] of the Admissibility Judgment). 7. The applicant concedes (at [1662] of his submissions) that the evidence had probative value but contends that the prejudice of this "uncorroborated" evidence was insurmountable (and that this is reflected in the jury's decision to convict him and to ignore other evidence); and that the prejudice "goes somewhat deeper" when it was conceded by the Crown and accepted by the Court that he was a person of good character (see applicant's submissions at [1663]). The applicant says that the failure to reject the evidence cannot be considered without regard to what was said by the trial judge in summing up (raising in this context the complaint made under ground 6(4) as to an inadequate warning direction (see above)). The applicant also maintains that this supports grounds 3 and 4 (see in relation to those grounds elsewhere in these reasons). Crown's submissions 1. The Crown notes that the focus of the applicant's submissions both at trial and on appeal, in relation to the writings and video evidence in question is on the potential unreliability of the admissions. 2. The Crown says that it was not in dispute that aspects of the documents and videos made by the applicant were delusional and so unworthy of belief that no weight should be placed on them (such as the applicant's belief that a retired judge and various police officers involved in the investigation into Mr Karmas' murder were complicit in the murder of his brother). However, the Crown argues that the jury was well-placed to evaluate the reliability of the admissions contained within the documents on the evidence before it. 3. So, for example, the Crown says that it would have been well open to the jury, on the evidence, to have drawn a distinction between the reliability of the writings insofar as they concerned the applicant's theories about his brother's death (of which he had no direct knowledge) and the reliability of admissions concerning his involvement in the murder of Mr Karmas (the latter involving the applicant describing things he had seen, heard and had done himself, whereas the former did not). 4. The Crown further says that the reliability of numerous aspects of the writings in the exhibits challenged by this sub-ground of appeal were supported by other evidence in the trial, including (by way of example) the following. 5. First, the applicant's account, in Ex CF, of the circumstances in which he retrieved the property of his brother from the Warwick Street Duplex is said to be consistent with other evidence about the event, including the evidence of Ms Amara Mantas as to the animosity shown by the applicant towards Mr Karmas (which evidence formed part of the Crown Case in relation to the applicant's motive). 6. Second, the Crown says that numerous aspects of the admissions recorded in Ex CF in relation to his interactions with Mr Karmas on 11 August 2011 are supported by other evidence in the trial, including but not limited to evidence that Mr Karmas' glasses were found in the glovebox of the vehicle. The Crown notes that the admissions which are extracted at [11] of her Honour's Admissibility Judgment (which are not here reproduced) included admissions made by the applicant to assaulting Mr Karmas upon his return to the Wilga Street Property. (The Crown refers also to the admissions recorded in Ex CG, at p 10 of the typed aide memoire and Ex CJ at p 8 thereof.) It is also noted that the applicant's claim that he assaulted Mr Karmas is supported by an admission made by the applicant in the course of a recorded conversation with Mr Woods (Ex CX), in which the applicant said: ...man, the way I see it the bigger the frame, the more he thinks he's got it over me, right. Within two seconds, he's going what the fuck was that, and it's like well its game over... That cunt was bigger than you... and I climbed him maggot I grabbed him and actually climbed up him, head butted him straight in the nose and as he fell I fell with him, and that was the end of the fight you know. He didn't know what hit him... Maggot he pissed on my brother's fucken grave mate, these cunts... And that's how it came to be. 1. The Crown says that the assertion in Exs CF and CG that (when Mr Karmas returned to the Wilga Street Property) Mr Karmas was armed with a taser was contrary to unchallenged evidence concerning Mr Karmas' character and thus shown to be unreliable (and it is noted that it did not form part of the admission made to Mr Woods which is recorded in Ex CX). 2. Third, the Crown says that the reference (in Ex CG at p 10 of the typed aide memoire) to having loaded Mr Karmas in the van is supported by the evidence regarding the applicant's participation in the disposal of Mr Karmas' body. 3. Fourth, the Crown says that the reference in Ex CG to two detectives having come to his home to request the return of their listening device (see p 6 of the typed aide memoire) is a reference to an actual event, as the evidence of Detective Sergeant McGee (as she then was) demonstrated (the Crown also referring here to Ex CJ at p 3). 4. Fifth, insofar as the documents were replete with references to the applicant's belief that Mr Karmas was involved in the murder of the applicant's brother, the Crown says that it was not the accuracy of that belief but the fact that the applicant held it that made it probative (as part of the Crown case in relation to motive). 5. The Crown thus maintains that the applicant has not shown either that the trial judge's refusal to exercise her discretion to exclude "the writing and video evidence" was attended by error of the kind referred to in House v The King (1936) 55 CLR 499; [1936] HCA 40 (House v The King), or that her Honour erred in failing to exclude the evidence pursuant to s 90 of the Evidence Act. 6. As to the application of s 137, it is noted that the applicant contends that it was "plainly wrong and unreasonable" for the trial judge to conclude that there was no real danger of unfair prejudice to the applicant in the admission of the evidence (see applicant's submissions at [1659]); and, in effect, that the danger of unfair prejudice (a danger that the jury would place undue weight on the evidence) was realised because the jury found him guilty of the "5 o'clock theory" (see submissions at [1679]). The Crown says that these submissions are misconceived (referring to the submissions made by the Crown in relation to grounds 3 and 4 of the grounds of appeal relating to the said theory). In summary, the Crown says that the applicant's assumption that this appeal must be determined on the basis that the jury rejected the proposition that the applicant murdered Mr Karmas at the Wilga Street Property between 1.52pm and 3.07pm on 11 August 2011 is without foundation. Further and in any event, the Crown says that the writing evidence was not the only evidence that supported the conclusion that, if he left there, Mr Karmas returned to the Wilga Street Property (the Crown referring to its submissions at [216]). 7. The Crown maintains that the probative value of the confessional statements, if accepted, was very high (as her Honour accepted) and notes that the applicant himself concedes that the evidence had probative value (see applicant's submissions at [1662]). 8. The Crown says that there was, properly considered, no real risk that the jury would place undue weight on the evidence. It is accepted that if the jury had formed the view that any one or more of the confessional statements was or were unreliable, it would have placed no weight on them. However, the Crown says that any danger that the jury might misuse the evidence in some way or give the evidence more weight than it deserved was ameliorated by the clear and careful directions given to the jury in relation to that body of evidence in the course of the summing up (as considered in relation to ground 6(4)). The Crown says that the applicant's complaints as to the adequacy of those directions, many of which are repeated in submissions made under this ground 13, ignore the careful directions that were given by the trial judge on the issue. The Crown thus maintains that the trial judge did not err in declining to exclude the evidence under s 137. Determination 1. At the outset it may be noted that there is some tension in the authorities as to whether the exercise of discretion under s 90 is reviewable on appeal only on the principles stated in House v The King (see MIH v R [2007] NSWCCA 199 per Campbell JA, with whom Hidden J and Smart AJ agreed, at [53]-[54], which was subsequently applied in Sulaeman v R [2013] NSWCCA 283 at [96] per R A Hulme J, with whom Beazley P, as Her Excellency then was, and Bellew J agreed) or (as is the case in relation to appellate review of a decision on an application under s 137) the appropriate standard of appellate review is the correctness standard (see The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61] in the context of tendency evidence and the discussion by Bathurst CJ, with whom Button and Wilson JJ agreed, in R v Riley [2020] NSWCCA 283 at [89]-[114]; albeit there it was unnecessary to reach a final conclusion on the issue). 2. However, as the Crown anticipated, it is unnecessary here to address that question because (as was the case in Em – see the judgment of Gleeson CJ and Heydon J at [55]), whichever standard of review is applied, the conclusion of the trial judge that the evidence was admissible and should not be excluded pursuant to s 90 of the Evidence Act is both correct and no error has been shown in the decision not to exclude that evidence. 3. As noted by the Crown, s 90 is concerned with the right of an accused to a fair trial and whether there is a risk of improper conviction (Swaffield) and it has been described as a "final or safety net provision" available after the more specific exclusionary provisions of the Evidence Act have been considered and applied (see Em at [109], per Gummow and Hayne JJ). 4. As to the admission of Ex AA (and to the extent that the ground encompasses Exhibit AG), no error has been shown in the decision of the trial judge to admit the Georges River Note. The application made to her Honour was expressly made pursuant to ss 90 and 137 of the Evidence Act. Her Honour correctly addressed the relevant principles applicable when considering an application made pursuant to those provisions. 5. Her Honour noted (at [42]) that there was no question of police impropriety in respect of the Georges River Note; and insofar as the applicant now contends that it was planted by police, there is no evidence that supports that assertion (see the consideration of this issue in the context of ground 14 below). Her Honour addressed (so far as was possible on the evidence) the circumstances in which the admissions were made and found it reasonable to conclude that those circumstances included the applicant's mental illness (at [52]), then addressing the question of unfairness to the applicant in the admission of the evidence and, in that context, the potential unreliability of the evidence. No House v The King error has here been shown; nor, if the test be the correctness of the decision, has the decision to admit the evidence been shown to be wrong. 6. As to the refusal to exclude the evidence pursuant to s 137, her Honour correctly addressed the question whether the probative value of the evidence was outweighed by the prejudicial effect of its admission and, with respect, reached the correct conclusion. This evidence, though potentially unreliable because of the applicant's mental state at the time, was nevertheless of probative value and her Honour correctly concluded that the feared prejudice from its admission could be addressed by appropriate directions to the jury. 7. As to the submission now made that the evidence should have been excluded pursuant to s 138 of the Evidence Act, no such application was made at the time and there was no error of the trial judge in not addressing an application not made. 8. As to the writings and video evidence, again no error has been established. Her Honour correctly considered the evidence having regard to the circumstances in which the confessional statements or admissions were made, considered the potential unreliability of the evidence and the question of unfairness as to its admission (for the purposes of s 90) and then correctly assessed its probative value and whether that was outweighed by the potential prejudice of its admission. For the reasons advanced by her Honour in the Admissibility Judgment the evidence was admissible and was not required to be excluded. 9. Neither of the sub-grounds of ground 13 is made good. Ground 14: There has been a miscarriage of justice in the trial of the applicant on account of the conduct by NSW Police during the course of the investigation. 1. This ground of complaint (sought to be considered as a "separate ground that the verdict was unsafe") makes allegations that the investigation into Mr Karmas' disappearance was flawed and compromised (the applicant relying in this context on submissions made at [240]-[583] in respect of ground 3); and the applicant contends that the gravity and propensity of the alleged misconduct gives rise to a substantial miscarriage of justice. Various of the complaints made by the applicant under this ground are raised in relation to other grounds. The complaints include the following serious allegations. 2. First, that police officers wilfully neglected their duty by failing to comply with standard operating procedures for search warrants in the course of executing crime scene warrants, and that they did so for "the collateral purpose to have a flexible use of exhibits seized" (see the applicant's submissions at [243]-[307]in particular [258]). Specifically, the applicant emphasises that the crime scene warrants executed during the course of the investigation "had not followed SOP's (Standard Operating Procedures) attached to search warrants as mandated by legislation" (citing s 98 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA)), including that the crime scene warrants had not been filmed, no independent observer was appointed, and further alleges that the police officers contravened cl 8(1) of the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW) (LEPR Regulation) (then in force) by failing to provide him with receipts acknowledging exhibits seized (see his submissions at [267]; [298]). 3. Second, that police officers intentionally failed to produce (in response to Item 13 of a subpoena for production issued to the Commissioner of Police on 28 June 2017) evidence that is now relied upon by the applicant (see the applicant's submissions at [260]-[266]), which is said to demonstrate that an exhibit seized from the Wilga Street Property was planted and unlawfully destroyed in the drug matter of the co-accused Mr Woods. 4. Third, that Detective Sergeant McGee lied on oath in an affidavit sworn by her on 15 February 2013 and during her evidence given during the trial (see the applicant's submissions at [309]-[314] and Annexure I to the applicant's affidavit sworn 1 September 2021; this complaint relates to the applicant's assertion that the standard operating procedures for search warrants applied to the execution of crime scene warrants). 5. Fourth, that Detective Sergeant McGee planted a quantity of cannabis that was seized from the Wilga Street Property (the applicant's home) in a vehicle driven by Mr Woods (submissions at [316]-[341]). Pausing here, insofar as the applicant alleges that a drug exhibit was planted by the officer in charge (submissions at [1615]), the Crown says that there is no evidence to support that assertion and it is contrary to evidence given by the applicant at trial. Applicant's submissions 1. As to the criticisms of the police investigation, they are outlined in the Crown's submissions below. Broadly, it is alleged by the applicant that the investigation was conducted with: a wilful neglect of duty "at such a systemic level warranting a strong inference the investigation was in pursuit of a an [sic] unlawful conviction"; the "Planting" of evidence by the officer in charge; the inability of the police to prove the continuity of crucial exhibits that had been tendered during the trial; and the failure of the police to follow relevant lines of investigation. 2. The applicant complains that all seven known crime scene warrants, and other searches of the applicant's vehicles, were unlawfully executed; and contends that the entire Crown case "was propounded with circumstantial evidence gathered by the very same officers who acted with such a dereliction of duty to obtain an unlawful conviction" (see at [1689] of his submissions). The applicant also relies on the matters raised in ground 18 in support of this ground (see below) (and raises this in response to the Crown's contention that the applicant, on appeal, is seeking to run a vastly different case to that upon which he relied at trial). 3. The applicant says that the logic of the "fruit from the poisonous tree" approach is straightforward; and that the State should not be permitted to gain an advantage from an unlawful act. 4. It is submitted that the conduct of the investigation falls in the most serious end of the range of the spectrum of improper conduct (as it was known to be illegal and was pursued for the purpose of obtaining a benefit advantage), here citing Director of Public Prosecutions v Marijancevic (2011) 33 VR 440; [2011] VSCA 355 (DPP v Marijancevic) at [67] per Warren CJ, Buchanan and Redlich JJA; and that the misconduct was calculated to injure the public interest and the administration of justice. Crown's submissions 1. The Crown complains (as adverted to above) that under this ground the applicant is attempting, on appeal, to run a vastly different case to that which he relied upon at trial; and that, in doing so, the applicant relies, in part, on evidence which he asserts is fresh evidence including documents contained in Annexures B, E, F, G, H and I of his fresh evidence affidavit. The Crown contends that this material is not fresh (but new) evidence, and that it lacks sufficient cogency to warrant a grant of leave to rely upon the evidence. 2. It is noted that the applicant also relies on material that he was aware of at the time of trial, but which was not adduced at trial and does not now form part of the material that is before this Court (including, for example, evidence said to have been given by Detective Sergeant McGee on a bail application before Garling J on 18 August 2016 - see in this respect the applicant's submissions at [295]-[296]). 3. The Crown addresses the allegations as to the failure to produce documents in response to item 13 of the 28 June 2017 subpoena and as to the planting of a drug exhibit in the context of ground 7 (see below) and says that there is no evidence to support them. 4. Insofar as the allegations relating to the standard operating procedures are concerned, the Crown says that documents produced by the applicant himself demonstrate that, at the time this investigation was conducted, those procedures did not apply to the execution of crime scene warrants. The Crown notes that Annexure Q to the applicant's affidavit sworn 1 September 2021 is a document that originally formed part of the police brief and supports the Crown's submission that at the time of the investigation a distinction existed between the procedure to be followed with respect to crime scene warrants and search warrants. In particular, the document shows that there was no requirement at the time for crime scene warrants to involve the use of an independent observer, and that "the Code of Practice does not specify which, if any, parts of search warrant SOPs were applicable to crime scene warrants" (see Annexure Q at p 52). 5. It is further emphasised by the Crown that the applicant was served with the notes of the crime scene warrant executed at his premises at the Wilga Street Property commencing on 14 August 2011. As for the applicant's submission that he was not provided with receipts contrary to cl 8 of the LEPR Regulation, the Crown notes that the applicant's counsel at trial raised the absence of receipts with Detective Senior Constable Scipione and put the issue to what is said to be a more effective forensic use (that is, the absence of receipts influenced the applicant's view as to the unfairness of the police). 6. The Crown addresses the criticisms made of the police investigation as follows. 7. First, as to the alleged failure to reinterview Ms Rifai in relation to her sighting of Mr Karmas (applicant's submissions at [346]; [478]-[482]), the Crown says this issue was addressed in the evidence of Detective Sergeant McGee who explained that she did not consider the description provided by Ms Rifai to be inconsistent with other evidence. 8. Second, as to the alleged failure of the officer in charge to make inquiries in relation to a transfer of $50,222.72 made from the account of Ms Angeles on 13 August 2011 (see the applicant's submissions at [347]-[365]), the Crown says that investigations were conducted in relation to the transfer (albeit not by the officer in charge) which concluded that it appeared that Ms Angeles had fallen victim to a "Nigerian fraud" scam. 9. Third, as to the alleged failure of police to reinterview Ms Angeles after her phone records were obtained (see the applicant's submissions at [368]-[373]), the Crown notes that Detective Senior Constable Scipione, one of two detectives who obtained a statement from Ms Angeles on 20 October 2011, gave evidence that he did not believe he asked Ms Angeles questions by reference to telephone records but said that if he had, and it was relevant, he would have included it in her statement. The Crown says that this criticism relates to a challenge, made in cross-examination, of Ms Angeles' account as to precisely when she had viewed each of the four text messages sent to her from the mobile phone of Mr Karmas on 11 August 2011. The Crown says that the issue was of no real moment, noting that it was not suggested at trial that Ms Angeles had any involvement in the murder of Mr Karmas. 10. Fourth, as to the failure of police to investigate the movements of Mr George Karmas on 11 August 2011 (see the applicant's submissions at [376]), the Crown notes that Detective Sergeant McGee explained that Mr George Karmas provided an account of his movements in a police statement and call charge records were obtained for his phone. The Crown says that it was not suggested to Mr George Karmas on either occasion that he gave evidence that the two were inconsistent with one another. 11. Fifth, as to the criticisms into the adequacy of and the conclusions reached by fraud investigations conducted by NSW Police in relation to separate allegations of fraud against Ms Angeles and Mr George Karmas (see the applicant's submissions at [379]-[404]), the Crown says that the applicant has made a series of unsubstantiated allegations including as to the involvement of Mr Leamey and a potential connection between "the $3 million fraud" and the transfer of $50,222.72; and that that there is no evidentiary foundation for the allegations. 12. Sixth, as to the omission of reference in the first statement of Mr Charawani to concerns Mr Karmas had expressed to him about the involvement of his brother Mr George Karmas with Mr Lafiatis (see the applicant's submissions at [405]-[470]), the Crown notes that Mr Charawani gave evidence that Mr Karmas told him that he was concerned that his "'real estate brother'' (i.e., Mr George Karmas) was "ripping off an old Greek guy" and that he had mentioned it to the police officer to whom he provided a statement but "he wasn't interested"'. The Crown says that Mr Charawani did not embrace the suggestion, put to him in cross-examination, that the officer told him they were only focusing on one person; and notes that the officer in question (Sergeant McAllister) gave evidence that he did not really recall taking the statement due to the passage of time but as to whether he directed Mr Charawani to focus on only one person, he answered "I can't recall but I doubt it". 13. Seventh, as to the alleged failure of the police investigation to follow up three possible sightings of Mr Karmas that were reported to Crime Stoppers Australia (see the applicant's submissions at 472]), the Crown says that the sightings were referred to in evidence by Detective Sergeant McGee; and that there was no evidence that police failed to investigate them. 14. Eighth, as to the alleged failure of police to conduct an investigation around the home of Ms Robinson (see the applicant's submissions at [472]-[476]), the Crown says that it is unclear what it is suggested would have been achieved by that since it was not in dispute that the applicant and Mr Woods had attended that address on the evening of 11 August 2011. Further, insofar as it is suggested that police should have conducted a CCTV canvass, Detective Sergeant McGee noted that it was a suburban area (and such a canvass is unlikely to have been productive). 15. Ninth, as to the applicant's submissions (at [496]-[583]) in relation to evidence which the applicant asserts supports the conclusion that Ex AA (the Georges River Note) was planted by police, the Crown says (referring to the submissions made in relation to ground 13), that the evidence does not support that assertion; and that no such submission was advanced at trial. It is again noted that no application to exclude that evidence pursuant to s 138 of the Evidence Act was made. 16. Overall, the Crown says that the jury was well placed to make an assessment of the adequacy or otherwise of such aspects of the police investigation as were before the Court, assisted by the submissions of counsel; and that it was well open to them to reject the criticisms that were made as being unfounded, unreasonable or of little moment. It is said that the further allegations made by the applicant for the first time on appeal are unfounded. Determination 1. The criticisms of the police investigation into Mr Karmas' disappearance, insofar as they go to the complaint that adequate enquiries were not made, are comprehensively addressed by the Crown and in any event were matters of which the jury was well apprised to take into account when assessing the evidence. 2. As to the complaints in relation to the execution of search warrants (and alleged failure to follow standard operating procedures, dealt with in relation to ground 7), the applicant has failed to appreciate that, at the time of the investigation, a distinction existed between search warrants and crime scene warrants and accordingly has failed to establish that the absence of an independent observer or the failure to film the crime scene warrants amounts to non-compliance with a statutory requirement. With respect to the alleged breach of cl 8 of the LEPR Regulation, it is noted that the obligation contained therein is qualified (receipts for things seized must be provided "if the occupier is then present and it is reasonably practicable to do so" [emphasis added]) and in any event the applicant accepts that he was provided with notes of the crime scene warrant executed at the Wilga Street Property, which included property seizure forms (see at T 8.7-33; 126.1-7 and at p 9 of NSW Police Force Forensic Services Group Initial Report dated 14 August 2011; see also the evidence of Detective Senior Constable Scipione at trial at T 1753.13-43). It is also significant that the applicant's request to be provided receipts by the police officers was raised during the trial by the applicant's counsel albeit for a different forensic purpose, that is, to explain the applicant's view of the investigation and the impact it had upon him over time (see, for example, the cross-examination by the applicant's counsel at trial at T 1661.47-50; T 1750.31-1753.43; see also the applicant's examination in chief at T 2323.10-2325.5). 3. Further, the applicant has no evidentiary basis for the assertion as to collateral purpose. The very serious allegation of perjury has no proper evidentiary foundation; nor is there any evidentiary basis for the also very serious allegation that evidence was "planted". As to the complaint made in relation to the response to item 13 of the 28 June 2017 subpoena, this is addressed in the context of ground 18 below. 4. This ground of appeal is not made good. Ground 15: There has been a miscarriage of justice in the trial of the applicant on account of NSW Police withholding and not disclosing computer data seized from the applicant. 1. The complaint raised by ground 15 relates to the alleged non-production of a large volume of computer data that had been seized by the police from the applicant's home (the Wilga Street Property) on 7 June 2013. The data in question is identified as computer data compiled by the applicant during the course of the two year homicide investigation prior to his arrest on 3 October 2013. The applicant says that the withholding of this data has occasioned unfairness to him. Applicant's submissions 1. The applicant complains that the NSW Police seized a substantial quantity of data that the applicant had been compiling over a two year period during the course of the investigation and while acting as self-litigant in other criminal and civil matters that were the subject during the applicant's murder trial; and that, notwithstanding s 217 of the LEPRA and the repeated request to have this material made available three years before the trial, this material was withheld by the NSW Police. The applicant says that, subsequent to the applicant's murder trial, the applicant was able to compel production of his computer data (during the hearing of what he refers to as the "Intimidate Police" proceedings) (being Annexure 7 to the affidavit deposed by the applicant on 11 May 2022); and argues that the production of this material shows that NSW Police did intend to mislead the Supreme Court (by asserting in the Crown's response that this data had been produced to Burwood Local Court). 2. The applicant disputes the contention by the Crown that these documents were served on the applicant as part of the brief of evidence in the murder trial. The applicant maintains that the prosecution brief included only some of the data found within the computer data seized from his home on 7 June 2013; and says that the data that was finally produced by the police in 2020 includes in excess of 2 Terabytes of data that had originally been seized (the applicant referring to Annexure 7 to the affidavit deposed to by him on 11 May 2022, being correspondence sent to him by the NSW Police Force regarding his request to be served digital files contained on three external hard drives which consisted of files seized from the applicant's and Mr Woods' personal storage devices). In this regard, the applicant says he relies upon the same legal principles and authorities as those under ground 7 (see the analysis of this ground below). 3. The applicant says that the fundamental issue is that the NSW Police refused to provide a copy of the data to which the applicant says he was entitled pursuant to s 217 of the LEPRA. It is noted that the data was first sought in a subpoena served on the Commissioner of Police on 12 October 2015 (just prior to the applicant's committal hearing). In this context, the applicant also refers to ground 18 in which he complains that defence counsel then acting for him "negotiated and narrowed" his subpoena served on the Commissioner of Police on 28 June 2017 without his consent or knowledge. 4. The applicant complains that the computer data withheld by the police would have assisted the defence during the cross-examination of all the leading detectives as to the integrity and credibility of the investigation (this being a paramount consideration in a circumstantial case). In particular, it is submitted that if there was evidence to support an inference that the officer in charge had planted evidence during the course of the investigation (see below) then an acquittal would have been a reasonable conclusion. 5. The applicant makes a succession of complaints as to the response to subpoenas issued on his behalf. 6. The applicant says that the computer data contained "portions" of Mr Woods' "drug matter" and said that this confirms that an exhibit seized from the applicant's home during the execution of a crime scene warrant (278/11 executed between 14-18 August 2011) (being Ex X0000 803 009) was "utilised/planted in Mr Woods isolated drug matter". (Pausing here, it may be noted that in oral submissions, the applicant does not refer to these documents, which he accepted in cross-examination during the appeal at T 12.35-40 and T 13.31-35 were provided to him, but rather refers to legal documents, including the bench book, procedures and SOPs, that he had been relying upon or gathered during the course of the investigation – see at T 104.49-105.19.) 7. A consistent complaint by the applicant is that the execution of search warrants, including in this instance the search warrant executed shortly after Mr Karmas' disappearance, was not filmed, that there was no appointed independent observer, no use of property seizure exhibit forms and no receipt issued to the occupant after it was executed (the applicant referring to cl 8 of the LEPR Regulation, which the applicant maintains required that he be furnished with a receipt acknowledging exhibits seized) (see applicant's submissions at [1698]-[[1699]). The applicant asserts that this evidence "would have explained why senior detectives failed to issue receipts to the applicant after seven consecutive crime scene warrants had been executed on his premises and vehicles"; and that this illegal practice permitted leading detectives with a flexible use of undocumented exhibits that had been illegally used. 8. The applicant maintains that there was an unlawful denial of access to the seized data; saying that he made numerous requests after 7 June 2013 to be provided with a complete copy of the computer data prior to the commencement of his trial in 2018; and that in November 2020 "and only by compelling production by way of subpoena in an unrelated matter" was the computer data ultimately produced by the NSW Police. 9. In his written submissions, the applicant makes detailed complaints as to the response from NSW Police with a subpoena filed on 12 October 2015 and another on 28 June 2017. As to the latter, the applicant places focus in particular on item 28 (seeking the production of all computer data seized on 7 June 2013 in relation to SW 1274/13 and SW 1275/13). 10. The applicant says that the police provided misleading answers in relation to this item (namely, that certain items in item 28 had been produced to the Burwood Local Court on 6 May 2016 in response to a subpoena issued by Mr Woods and that no copies of the "data" were in existence). The applicant says that his defence counsel was instructed that the response provided by the NSW Police with regard to item 28 (that the data had been produced to Burwood Local Court) was false and misleading (this is raised in the context of ground 18 as well). 11. The applicant contends that the computer data sought by Mr Woods was in relation to computer data seized from his (Mr Woods') home in Canberra on 25 June 2013 in relation to another search and seizure (that being the data that was produced to Burwood Local Court); and that this was not the computer data sought by the applicant in his subpoena. Rather, the applicant says that he was clearly seeking production of computer data seized by NSW Police on 7 June 2013 from an address at Croydon Avenue, Croydon Park. 12. Furthermore, the applicant complains that it is obvious that neither his then solicitors (Zahr Partners) nor his counsel (Mr Todd) went to Burwood Local Court to obtain the computer data that had been produced in response to the subpoena served by Mr Woods in 2015. As adverted to above, the applicant complains that he was never notified by Zahr Partners that the subpoena served on the Commissioner of Police on 28 June 2017 had been narrowed and negotiated; nor was the applicant provided a copy of the video recording produced by NSW Police in relation to item 24 (which the applicant says confirmed that drugs seized from the applicant's home were attached to Mr Woods' drug matter). 13. Complaint is made that while the response to item 13 of the subpoena filed on 28 June 2017 was that there was nothing to produce, there is now evidence that documents did exist that would have been available to the defence if the computer data had been produced. 14. Complaint is further made that, notwithstanding that the applicant sought bail during this appeal to examine the computer data, bail was denied and the Court refused to make any orders that Corrective Services provide the necessary facilities so the applicant could view the data in aid of meeting his onus of demonstrating what material would have assisted during the trial. The applicant contends that his counsel's failure to address the production of this data is without any justification and deprived the applicant of due process. The applicant says that, at the very least, counsel failed to follow due diligence. (This seems to be a complaint relating to ground 18.) 15. The applicant says that the documents produced by Zahr Partners indicate that the production of the computer data (item 28) would be stood over so the defence could check what was produced at Burwood Local Court (referring to a letter sent from the Crown Solicitor's Office to Zahr Partners on 15 December 2017, marked as Annexure 11 to the applicant's affidavit deposed on 11 May 2022), noting that the trial judge stood the subpoena over to the 19 December 2017, indicating that if there was any issue in relation to item 28, it had to be raised on 19 December 2017 so the matter could be relisted. 16. The applicant says that no issue appears to have been raised with the trial judge on 19 December 2017 and asserts that neither Zahr Partners or Mr Todd checked the computer data that was produced at Burwood Local Court. The applicant emphasises that he was never contacted and informed how his subpoena was narrowed and negotiated; and that Mr Todd makes no issue of addressing the production of the applicant's computer data in his affidavit. 17. The applicant says that, ultimately, there was an adverse impact on the administration of justice in these circumstances as he lost a significant possibility of acquittal. In this regard, the applicant says that the computer data would have assisted his defence in a number of ways, including the following. First, to demonstrate that the investigation commenced with the intention to obtain an unlawful conviction, supported by the wilful neglect of duty followed in all seven known crime scene warrants to enable a flexible illegal use of exhibits seized. Second, that it could have been utilised strongly to infer that the Georges River Note was planted (in conjunction with the alleged admission by another officer that a false and misleading statement was generated as to the continuity of the blue diary and other exhibits allegedly located in the applicant's vehicle). Third, that it could have been utilised to test the tender of the forensic evidence found inside the applicant's vehicle belonging to Mr Karmas (evidence said to have been discovered only after having obtained Mr Karmas' DNA); a discovery made "after detectives had unsupervised access to the applicant's vehicles". Fourth, it is said that this evidence "would have gone a very long way towards" the evidence (listening device recordings – Exs CS and CX) tendered on the grounds of consciousness of guilt (ground 9), as it would have conclusively explained why Mr Woods was so angry towards the officer in charge on 26 November 2011 "as it was obvious that [the officer] had planted those drugs in his drug matter" (see his submissions at [1725]). Fifth, that the computer data could have reasonably influenced the committal hearing if the allegations of systemic corruption followed by the said officer had been corroborated with this evidence. Finally, that the documents would have permitted a strong argument for a stay of the proceeding at the close of the Crown's case, if not before the trial commenced. In oral submissions, the applicant emphasises his legislative right to have access, and says that pursuant to s 217 of the LEPRA he was entitled to that material (see T 104.49-105.19). Crown's submissions 1. The Crown notes that the applicant acknowledges that he has since been served with the computer data seized from his home during the execution of the search warrant on 7 June 2013 and that the complaint is that it was not provided to him until some time after his trial. 2. Insofar as the applicant asserts that "documents included in this computer data would have assisted the defence during the cross-examination of all the leading detectives ... with regards to the integrity and credibility of the investigation" (applicant's submissions at [1695]), the Crown notes that this assertion rests on the applicant's contention that the computer data contained "portions" of Mr Woods' drug matter (the same documents that the applicant asserts demonstrate that Detective Sergeant McGee planted drugs seized from the Wilga Street Property in a vehicle driven by Mr Woods on 7 September 2011) and that those documents were not otherwise available to him at the time of his trial. 3. The Crown says that the applicant's submissions fail for two reasons. First, that the documents in question were served on the applicant as part of the brief of evidence in the murder trial. The Crown says that it follows that the applicant's access to those documents was not contingent upon access to the computer data seized from his home. Second, that the documents do not show what the applicant contends they do. 4. Further, and in any event, the Crown says that various officers gave evidence in the trial about the seizure of items during the search warrant on 7 June 2013. It is noted that Detective Senior Constable Brennan gave evidence that he oversaw the review of all of the computers and storage devices (including USBs) that were seized during that search warrant; and that neither Detective Senior Constable Brennan nor any other officer who gave evidence relevant to that search warrant was asked any questions about the presence of the material which the applicant now asserts would have assisted his defence. 5. Relevantly, the Crown notes that the applicant's submissions on this ground changed during the course of the hearing. While [1698]-[1725] of the applicant's written submissions are directed to the documents attached to Mr Woods' drug matter, it is said that the applicant revised his submissions during the hearing (once it was established that those documents had been served upon the applicant in the police brief of evidence) to the effect that the relevant documents he was deprived access to were legal literature and the legal research he had done (see at T 126.36-49). 6. The Crown submits that, even if the Court were to accept that the applicant had not been served with his computer data and was deprived access to his legal research (a submission that is denied by the Crown), the applicant has not discharged the onus of establishing miscarriage, as the applicant was represented in trial proceedings by competent legal representatives who discharged their obligation to act in his best interest quite comprehensively (T 127.21-42). Determination 1. This ground of appeal is not made good; not least because it is not established that the documents were not in fact contained in the prosecution brief (and as such accessible and available for use by the applicant in the course of the trial). In any event, it is accepted that even if the legal research documents were not provided to the applicant, this does not give rise to a miscarriage of justice in light of the fact that the applicant was represented by counsel at trial (and, as discussed below in consideration of ground 18, it must be concluded that there was no incompetence by the applicant's counsel or failure to follow the applicant's instructions). This ground of appeal is not made good. Ground 16: Her Honour failed to give a fundamental direction to the jury that they had to be satisfied of the truth of the admissions in the writing evidence beyond a reasonable doubt before being able to find the accused guilty of the 5 o'clock theory 1. The complaint raised by the applicant in ground 16 is that, after the Crown sought to rely on the truth and accuracy of the writing evidence, her Honour failed to give a specific warning to the jury that they should not act upon the admissions unless satisfied of their truth, because the applicant asserted in his evidence that the admissions were untrue. This raises issues relevant to the consideration of ground 6(4) (addressed by Dhanji J below). 2. It is said that, in circumstances where the applicant had conceded to authoring the admissions but denied their truth, the jury had to be given a direction that they should not act upon this evidence unless they were satisfied of its truth and accuracy beyond a reasonable doubt; that is, that Mr Karmas did return to the Wilga Street Property at or soon after 5.00pm and was then assaulted by the applicant. 3. The applicant contends that the trial judge failed to give the proper direction on the use they could make of these admissions, allowing the jury to apply a much lower test. Reference is made to the way in which the trial judge addressed the issue of corroboration with regard to the writings: I am asked to remind you of the fact that the only evidence for Mr Karmas returning to Wilga St later that day at around 5 o'clock or so comes from the writings of Mr Fantakis. You have heard what has been said about his state and how that might have affected the reliability of those writings, I do not propose to go back over that, but I am asked to remind you that you should look for, to see when you are considering the Crown's circumstantial case, whether there is any overall support for the fact that Mr Karmas returned to Wilga St later in the afternoon. 1. The applicant complains that the trial judge failed to give the proper direction on the use that could be made of the admissions, allowing the jury to apply a much lower test before establishing the facts of the 5 o'clock theory; and that this failure meant that the jury was mistaken or misled, causing the verdict to be unsafe. The applicant says that although no direction was sought by his counsel, this was a direction that was fundamental in the whole context of the whole trial and that it went to the root of the proceedings. As it may well have affected the jury verdict, the applicant says that it is not possible to apply the proviso to s 6(1) of the Criminal Appeal Act (again citing Domican; and referring to Krakouer v The Queen (1998) 194 CLR 202; [1998] HCA 43). 2. The applicant complains that the direction that was repeated on four separate occasions was that the Crown only had to prove the elements of the offence beyond a reasonable doubt; and that everything else could be established on a lower test (see submissions in relation to ground 6(1)). The applicant says that there is a real risk that the jury could have applied a much lower test in accepting these writings before drawing the ultimate inference. 3. In the absence of any evidence to corroborate the admissions, it is said that these are matters which render it doubtful that any confessional statement made by the applicant was, in the words of Dixon J in Sinclair at 338, "intrinsically likely to be true". Reference is made to authorities which have considered the need for a jury to be directed that, before they can rely on confessional statements, they must be satisfied as to the truth and accuracy of these statements beyond a reasonable doubt (the danger being that the jury may not recognise that although these statements were made by the accused it does not follow that they must be truthful (referring by way of example to cases such as Burns v The Queen (1975) 132 CLR 258; [1975] HCA 21 (Burns) at 261; R v Green (2002) 4 VR 471; [2002] VSCA 34 (Green); and Morris). 4. The applicant submits that the failure adequately to direct on such a relevant issue means that the jury was mistaken or misled, causing the verdict to be unsafe and the applicant was deprived of a reasonable opportunity of persuading the jury that he should be found not guilty. It is thus submitted that the guilty verdict was not grounded on a sound basis requiring the verdict to be set-aside. 5. The applicant says that, in any event, as the Crown had insufficient evidence to prove that Mr Karmas did return to the Wilga Street Property, this was always a case theory that under scrutiny was foredoomed to fail; explaining why the prosecution was compelled to open and conduct the case that included Mr Cheong. 6. For the above reasons (as indicated in ground 6(1) and 12), the applicant submits that it cannot be accepted (cf the Crown's submission at [348]) that there was other evidence to infer the applicant's guilt apart from the writings. 7. The applicant says that the return of Mr Karmas was an indispensable intermediate fact that had to be proved to the criminal standard, as the Crown was obliged to prove opportunity. Reference is made to the trial judge's findings at [26] in the sentencing judgement, as to the 5 o'clock theory: The detail of what is recorded as having occurred, which sometimes varied, is not evidence which can be accepted to the same high standard of proof as establishing precisely what happened to Mr Karmas. 1. It is submitted that leave should be granted to be heard on this ground as this direction was essential to prevent misleading the jury and causing a miscarriage. The applicant relies upon ground 18 (see below) that counsel did act with flagrant ineptitude before and during the trial to deny the applicant due process. It is submitted that an independent assessment of the evidence both as to its sufficiency and its quality, with regard to the 5 o'clock theory, should favour the conclusion that the applicant should have been acquitted by a jury acting reasonably. 2. The applicant submits that the admissions were a critical issue in the present case and thus that the misdirection by her Honour caused a substantial miscarriage of justice. Crown's submissions 1. As to this ground, the Crown notes that the applicant acknowledges that the direction which he now contends ought to have been given was not sought at trial (as a result of which it follows that leave to rely on the ground is required pursuant to rule 4.15). 2. Insofar as the applicant relies on Burns and Green, the Crown says that those cases do not establish that a direction of the kind now sought is required as a matter of law in every case in which there is a dispute as to whether a confession or admission was made or, if it was, whether it is truthful and accurate. Rather, it is said that the need for a direction in those cases arose because of the particular facts and circumstances that existed. 3. It is noted that in Burns, the confession alleged to have been made by the appellant to police (but which he denied having made) was the only evidence implicating him in the armed robbery; and that in Green, it was held that a direction was required in circumstances where the prosecution case depended "principally if not wholly" upon the jury accepting that the statements in the record of interview were truthful in circumstances where the defence denied their truth and that the jury should have been given a direction "fashioned to meet the facts in issue" that the jury could not use the confessions in the record of interview "unless satisfied beyond reasonable doubt that they contained a truthful and accurate account of the applicant's involvement in the offence". The Crown says that the need to be satisfied "beyond reasonable doubt" there arose because of the importance of the evidence to proof of the offence and that the conclusion of the Victorian Court of Appeal that the trial judge erred in failing to give a specific direction in relation to the admissions should be understood in the same context. 4. The Crown points out that the decisions of Burns and Green were recently considered by this Court in (Restricted Judgment) [2021] NSWCCA 227 where Payne JA (with whom Garling and Wright JJ agreed) concluded at [76] that those cases (together with others relied upon in that case) do not establish that a direction of the kind sought by the applicant is required as a matter of law in every case in which there is a dispute about whether a confession or admission was truthful and accurate. 5. As to the present case, the Crown says that if the jury was satisfied that it was reasonably possible that Mr Karmas left the Wilga Street Property alive (i.e., was not murdered in the first window of opportunity), then the relevant portions of the writings were not the only evidence that the applicant murdered Mr Karmas at that address later that afternoon. It is said that there was a significant body of other evidence, including but not limited to: the motive evidence (that motive evidence including that the applicant had threatened to kill Mr Karmas in the period leading up to the murder); the evidence relied upon to establish that Mr Karmas was deceased, evidence relating to the disposal of the body; evidence relied upon to establish consciousness of guilt and evidence of admissions made by the applicant that supported that conclusion (see the Crown's submissions at [216]). The Crown maintains that a direction of the kind contemplated in Burns and Green was not required in the circumstances. 6. The Crown again emphasises the significance of the fact that such a direction was not sought at trial by experienced counsel who appeared on behalf of the applicant. It is said that the absence of a request for the direction now sought is an indication that no miscarriage of justice was occasioned in the atmosphere of the trial (citing The Queen v Dookheea (2017) 262 CLR 402; [2017] HCA 36 at [37]-[39] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ); ARS v R [2011] NSWCCA 266 at [148] (Bathurst CJ, with whom James and Johnson JJ agreed); Greenhalgh at [42] (Basten JA, with whom Button and N Adams JJ agreed)). 7. The Crown thus maintains that the applicant has not established that the absence of the direction for which he now contends constitutes either legal error or a miscarriage of justice; and submits that leave under r 4.15 of the Criminal Appeal Rules should be refused, or alternatively, in the event that leave is granted, this ground of appeal should be dismissed. Determination 1. As noted above, this ground raises similar issues to the complaint made in ground 6(4) as to there being no warning as to the danger of convicting the applicant on the writings and videos made by him. As Dhanji J points out (see below) the Crown case did not rely solely on the writings made by the applicant (and, indeed, as the trial judge made clear, there was evidence of the applicant's mental state at the time of the writings that was said to affect the reliability of those writings and the jury was cautioned more than once as to the need to look for corroboration when considering the Crown's circumstantial case). This is not a case where a direction of the kind here sought was required as a matter of law. Error has not been established arising out of the trial judge's directions in relation to the use that could be made of the applicant's writings. 2. Moreover, the fact that counsel did not raise any issue as to such a direction supports the conclusion that it was not thought that it was necessary for the jury's appreciation of its task that such a direction be given (and see Selby v R [2017] NSWCCA 40 at [46] per Leeming JA, Schmidt and Wilson JJ; Tekely v R [2007] NSWCCA 75 at [88] per Sully J and at [130] per Howie J in this context). No miscarriage has been demonstrated in this regard. This ground of appeal is not made good. Ground 17: The trial miscarried because the trial judge failed to leave manslaughter to the jury on the basis of self-defence and provocation 1. The complaint under this ground is that the trial judge failed to leave manslaughter to the jury, if the jury were to accept the "writing evidence" as being an accurate and truthful account of what occurred on 11 August 2011 after Mr Cheong was taken home and assuming that Mr Karmas returned to the Wilga Street Property at or soon after 5pm. The applicant asserts that an assessment of the evidence with regard to 11 August 2011 favours the conclusion that the applicant did not have any intention to murder Mr Karmas. Applicant's submissions 1. Insofar as the Crown in its submissions (at [352]) asserts that it is for the applicant to demonstrate that an alternative verdict of manslaughter was open on the evidence, the applicant says that the question whether manslaughter should be left for the jury's consideration in a trial where the accused is charged with murder will always depend on the facts as they unfold in in any particular case. 2. The applicant contends that, as the trial judge left the writings to the jury (to be assessed "as a story of truth"), then the event disclosed in this evidence identifies that Mr Karmas had returned to the applicant's home yielding a weapon, whereupon the applicant had to disarm him (followed with confessions made Mr Karmas to having killed the applicant's twin brother) (see the applicant's submissions at [1792]). The applicant submits that that factual scenario told in the writings thus reveals facts, as a result of the conduct of Mr Karmas, which demonstrate that the accused did act in self-defence and provocation. 3. Reliance is placed on the statement by Gleeson CJ and Gummow J in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 (Gilbert) at [18], citing Lord Tucker in Bullard v The Queen [1957] AC 635 at 644 as to the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given and that to deprive an accused of that right must of necessity constitute a grave miscarriage of justice "and it is idle to speculate what verdict the jury would have reached". 4. The applicant contends that the trial judge was obliged to give a direction on manslaughter on the basis of self-defence and provocation because of the actions of Mr Karmas. Irrespective of this, it is contended that the trial judge had a duty to address the exculpatory admissions that did form part of the tender; the applicant saying that, essentially, the writings were mixed statements comprising of both inculpatory and exculpatory admissions that could not be "cherry picked". 5. The applicant emphasises that in every case where the prosecution case depends solely on confessional statements that are uncorroborated and challenged, a judge must direct the jury that the jury cannot convict unless satisfied beyond reasonable doubt that the confession was made and that it was true; and that in some cases, it may be necessary to distinguish between those parts of a confessional statement which are inculpatory (confession) and those parts which are exculpatory (a justification or excuse) and give a direction that the jury must be satisfied beyond reasonable doubt that the exculpatory parts are untrue; and that similar directions must be given when the confession is part only of the prosecution case (citing A Ligertwood, Australian Evidence Cases and Materials (1995, Butterworths) at pp 258-259; and referring in this context to Nguyen v The Queen (2020) 269 CLR 299; [2020] HCA 23 (Nguyen), at [15]; [27]; Mahmood v The State of Western Australia (2008) 232 CLR 397; [2008] HCA 1 (Mahmood) at 408 [39], referring to Jack v Smail (1905) 2 CLR 684; [1905] HCA 25 at 695). 6. Complaint is made that in the present case the trial judge failed to address the exculpatory statements made in the writings and the Crown failed to exclude self-defence or provocation to the requisite test. 7. The applicant says that if the Crown wished to rely on the inculpatory material, it was "bound to take the good with the bad" (citing Nguyen at [38], there referring to The Queen v Soma (2003) 212 CLR 299; [2003] HCA 13 at 309-310 [30]-[31]). 8. The applicant thus submits that the trial judge was obliged to direct the jury on the exculpatory admissions and to direct the jury that the applicant had no onus to prove self-defence or provocation and that the Crown had the onus of excluding such defences to the criminal test. Complaint is made that the exculpatory admissions were ignored by Her Honour and not excluded by the Crown; and that, by in effect splitting the Crown's case, the trial judge denied the Crown the opportunity to negate the exculpatory admissions. 9. Reference is made to authorities as to the requirement that the judge hold the balance between the contending parties (see Robinson v R (2006) A Crim R 88; [2006] NSWCCA 192 at [140] per Johnson J, with whom Spigelman CJ and Simpson J, as her Honour then was, agreed) without taking a part in their disputations; that the judge does not exercise an inquisitorial role in which he or she seeks himself to remedy the deficiencies in the case of either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel (there citing Whitehorn v The Queen (1983) 152 CLR 657; [1983] HCA 42 at 682 per Dawson J). It is noted that the fundamental task of a trial judge is to ensure a fair trial (citing R v Meher [2004] NSWCCA 355 (Meher) at [76] per Wood CJ at CL, with whom Buddin and Shaw JJ agreed) and that the trial judge should normally refrain from advancing an argument in support of the Crown case that was not put by the Crown. 10. The applicant points out that there are two reasons for the unacceptability of a judge using the summing up as a vehicle for strengthening the Crown case: first, it is inconsistent with judicial impartiality and, second, to do so denies the prosecution and the defence the opportunity either to disavow or meet the argument (citing Meher at [87]-[93]; R v Esposito (1989) 45 NSWLR 442, at 455D-E per Wood CJ at CL). 11. The applicant contends that the trial judge failed in her duty to direct the jury on the above issues and did not leave manslaughter as an alternate verdict. 12. Insofar as the Crown says in its submissions at [358] that the applicant did not challenge a significant body of evidence regarding the character of Mr Karmas, the applicant says that: he was never asked to defend the 5 o'clock proposition; no party put this proposition to the applicant during cross-examination; the Crown never relied on the evidence of good character with regards to Mr Karmas to exclude this proposition; the Crown conducted its whole case in an attempt to negate the 5 o'clock proposition and at no time addressed the exculpatory admissions that formed part of the tender. 13. The applicant emphasises that an accused does not have the onus of proving self-defence or provocation; it is the Crown that bears the onus of excluding these defences which were open on the evidence. It is submitted that the Crown did not address these defences that were open on the evidence during the trial. The applicant notes that if there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury, notwithstanding, that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury. 14. The applicant points to authority for the proposition that the duty to ensure a fair trial requires that a lesser offence be left to the jury if justice to the accused requires it (citing The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [138] per Kiefel J, as her Honour then was, Hayne J agreeing at [80], Heydon J agreeing at [92], Crennan J agreeing at [93]) and that the obligation is borne of the judge's duty to secure a fair trial of the accused and as such, where the justice to the accused requires such a direction on the alternative verdicts, the forensic choices of counsel are not determinative (cf James at [22]-[23]; R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 at [75]; Mulvihill v R [2016] NSWCCA 259 at [116]). It is noted that history and recognition of the gravity of a conviction for murder inform the obligation to leave a case of manslaughter where on the facts it is an available verdict, albeit not one for which the defence contends (James at [22]-[23]). 15. The applicant thus maintains that the writings left as a story of truth do reveal facts whereby manslaughter was an available verdict. 16. Reference is made to the obligation of a trial judge (already considered in relation to grounds 1 and 2 above) to leave to the jury defences which appear to the judge to be reasonably open, notwithstanding that they have not been canvassed by defence counsel, this forming part of the obligation of the trial judge to ensure that the accused person has a fair trial according to law. The applicant cites, among other authorities, various observations in Gillard v The Queen (2003) 219 CLR 1; [2003] HCA 64; The Queen v Nguyen (2010) 242 CLR 491; [2010] HCA 38, Gilbert; and Lane v The Queen (2018) 265 CLR 196; [2018] HCA 28 (see reply submissions at [692]-[693]), arguing that it cannot be said that there was no substantial miscarriage of justice (by the failure to leave viable manslaughter alternatives to the jury). 17. The applicant addresses in particular the defences of self-defence and provocation (see from [694] of his reply submissions) and says that it was never the Crown's case to exclude self-defence or provocation, noting that for self- defence to be left to the jury there must be evidence capable of supporting a reasonable doubt in the mind of the tribunal of fact as to whether the prosecution has excluded self-defence (Colosimo v Director of Public Prosecutions [2006] NSWCA 293 at [19] per Hodgson JA with whom Handley and Ipp JJA agreed) and, for provocation, the question is whether on the version of the events most favourable to the accused, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked (Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 (Lindsay) at [26] per French CJ, Kiefel J as her Honour then was, Bell and Keane JJ). 18. In the present case, the applicant argues that, under the circumstances described in the writings (and on the premise that the story in the writings was to be assessed as a story of truth) it was necessary for him to do what he did in order to defend himself (see at [701] in his reply submissions) and provocation in the conduct of Mr Karmas was clearly evident (see [706]; [712] of the reply submissions) but the Crown did not address (and exclude a reasonable doubt) as to those defences. Further, as noted above, complaint is made that the Crown's submission on the present application does not offer any explanation as to why the trial judge failed in her duty to address the exculpatory admissions that did form part of the writings. 19. The applicant notes that a direction for self-defence in cases of murder must contain the following essential components: the law recognises the right of a person to act in self-defence from an attack or threatened attack; it is for the Crown to eliminate it as an issue by proving beyond reasonable doubt that the accused's act was not done in self-defence; the Crown may do this by proving beyond reasonable doubt either: the accused did not believe at the time of the act that it was necessary to do what he or she did in order to defend himself or herself; or the accused's act was not a reasonable response in the circumstances as he or she perceived them; that in determining the issue of whether the accused personally believed that his or her conduct was necessary for self-defence, the jury must consider the circumstances as the accused perceived them to be at the time; and that if the jury is not satisfied beyond reasonable doubt that the accused did not personally believe that his or her conduct was necessary for self-defence, it must then decide whether the Crown has proved beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as perceived by him or her. If the Crown fails to do so it will have failed to eliminate self-defence. 20. The applicant's complaint is that the Crown did not address the first or second of those matters and says that, under the circumstances described in the writings it was necessary for the accused to do what he did in order to defend himself. 21. Thus, it is submitted that the failure by the trial judge to give a manslaughter direction caused a substantial miscarriage of justice. Crown's submissions 1. The Crown maintains (correctly) that it is for the applicant to demonstrate that an alternative verdict based on the evidence is viable (in the sense of being fairly open); in other words, that there was evidence reasonably capable of supporting the relevant defence; and that, in determining whether an alternative verdict of manslaughter was fairly open on the evidence on the basis of either self-defence or provocation, regard must be had to the legal requirements of those defences (see as noted below). 2. The Crown says that the applicant does not identify with any precision the evidence which he now contends enlivened an obligation on the part of the trial judge to leave an alternate verdict of manslaughter to the jury on the basis of provocation and excessive self-defence (his submissions simply referring to "the writing evidence"). Insofar as the applicant is referring to portions of Exs CF, CG and CJ (in which, the applicant describes Mr Karmas having returned to his home armed with a taser, that he (the applicant) disarmed Mr Karmas of the taser and tasered Mr Karmas before torturing him for a number of hours), the Crown notes that Ex CF is silent as to what happened next, whereas Ex CG reads, "I loaded him in the van & drove. I left him tied up & watched him.... & cry"; and that, in Ex CJ, the applicant reports having released Mr Karmas after torturing him for three hours. 3. Insofar as the partial defence of provocation is concerned, the Crown says that there was no evidence that the act was the result of a loss of self-control on the applicant's part. Pausing here, it is noted that an applicant's failure to give evidence as to his actual loss of self-control is not fatal, as loss of self-control may be proved expressly or by implication from the applicant's actions and appearance at the time of killing (see Lee Chun-Chuen v The Queen [1963] AC 220 at 229-232 per Lord Devlin, cited with approval in Da Costa v The Queen (1968) 118 CLR 186; [1968] HCA 51 at 213-214 by Owen J, with whom Kitto, Menzies and Windeyer JJ agreed; see also R v Peisley (1990) 54 A Crim R 42 (Peisley) at 48 per Wood J). 4. In respect of self-defence, the Crown says that there is no evidence that the applicant believed that the conduct was necessary to defend himself or another person. It is noted that a common theme of the relevant parts of the writings is that the applicant incapacitated and disarmed Mr Karmas before torturing him over an extended period. The Crown says that the evidence was not reasonably capable of supporting either defence. 5. Further, and in any event, the Crown points out that it was not suggested by any party that the applicant's claim (in those portions of the writings) that Mr Karmas returned to his home armed with a taser was reliable; and that it was contrary to a significant body of evidence regarding the character of Mr Karmas, which was not challenged by the applicant. Determination 1. Section 23 of the Crimes Act (as in force at the time of the alleged murder) relevantly provided that: 1. Where, on the trial of a person for murder, it appears that the act or omission causing death was an act done or omitted under provocation and, but for this subsection and the provocation, the jury would have found the accused guilty of murder, the jury shall acquit the accused of murder and find the accused guilty of manslaughter. 2. For the purposes of subsection (1), an act or omission causing death is an act done or omitted under provocation where: a. the act or omission is the result of a loss of self-control on the part of the accused that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the accused, and b. that conduct of the deceased was such as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intent to kill, or to inflict grievous bodily harm upon, the deceased, whether that conduct of the deceased occurred immediately before the act or omission causing death or at any previous time. 1. Insofar as an alternative verdict of manslaughter on the basis of excessive self-defence is concerned, s 421 of the Crimes Act provided that: (1) This section applies if: a. the person uses force that involves the infliction of death, and b. the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary: c. to defend himself or herself or another person, or d. to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter. 1. As to self defence, the evidence of the writings did not raise a reasonably viable claim for an alternative verdict of manslaughter on the basis of excessive self-defence. There was nothing to corroborate the assertion that Mr Karmas had with him at any time on 11 August 2011 a taser; and the writings (if true) included a lengthy period of torture that could on no view have been seen as in self defence. 2. As to provocation, again the writings do not leave reasonably open a defence of provocation. It is a threshold question of law for the judge whether there is material in the evidence which sufficiently raises the issue of provocation for the jury's consideration (Lindsay at [16] per French CJ, Kiefel J, as her Honour then was, Bell and Keane JJ). The question is whether "on the version of the events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense" (Lindsay at [26] per French CJ, Kiefel J, Bell and Keane JJ, there citing Masciantonio v The Queen (1995) 183 CLR 58 at 67-68 per Brennan J as his Honour then was, Deane, Dawson and Gaudron JJ). 3. While it has been said that there is limited scope for the judge in deciding the question of law and he or she needs to exercise caution before declining to leave provocation to the jury (Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61 at 334 per Mason CJ, Brennan J as his Honour then was, Deane, Dawson Toohey, Gaudron and McHugh JJ), cited with approval in Lindsay at [27]), in the present case the evidence of the writings upon which the applicant relies is incapable of satisfying the essential elements of the partial defence. As the applicant has noted, apparently innocuous words and conduct on the part of the deceased are capable, when considered in the light of the whole history of their relationship (including matters not occurring in the presence of the accused) of amounting to provocation (citing R v R (1981) 28 SASR 321; Moffa v The Queen (1977) 138 CLR 601; [1977] HCA 14 at 616 per Gibbs J as his Honour then was; Peisley). Nevertheless, accepting the version of facts most favourable to the applicant, there is no evidence that the applicant acted in an uncontrolled emotional state (particularly given that his conduct on his own account lasted for several hours and included disarming, punching, tasering and torturing Mr Karmas) nor that the applicant's forming of a murderous intent was induced by the conduct of Mr Karmas (even if it is accepted that he was carrying a taser as the applicant contends). Further, no jury could have been other than satisfied that an ordinary person would not have formed an intention to commit grievous bodily harm or murder, as the applicant did, upon the mere sight of Mr Karmas carrying a taser (being a non-lethal weapon). 4. This ground is not made good. Ground 18: Ineptitude of Counsel – Denial of Due Process 1. Ground 18 was the subject of various submissions (see [1799]-[2382] of the document headed Amended Submissions (3) filed on 10 March 2022; and the reply submissions at [844]-[1041]). A number of complaints are made under this ground, a number of which overlap with other grounds of appeal: * Ground 18A: Counsel failed to utilise documents during the cross-examination of material witnesses, depriving the applicant of the fundamental right to a fair trial, including: (1) emails produced from a subpoena issued to the Commissioner of Police on 3 August 2015; (2) Supreme Court transcripts for a bail application heard on 18 August 2016, including the submissions filed by the applicant (including Enhanced LD Recordings, Ex CS and Ex CX); (3) emails/faxes sent to detectives during the homicide investigation identifying the intent by the strike force (codenamed "Flaggy") to withhold receipts of exhibits seized for an improper purpose; (4) documents attached to subpoenas served on the Commissioner of Police on 12 October 2015 and 28 June 2017; including the applicant's instructions. * Ground 18B: Counsel failed to comply with instructions to press for the production of documents sought in the subpoena served on the Commissioner of Police on 28 June 2017 or to make further enquiries; * Ground 18C: Counsel failed to seek relevant directions as instructed by the applicant, including: (1) Counsel failed to follow written instructions and seek that her Honour directs the jury on the conflict in evidence between the two case theories as they are not alternate case theories; (2) Counsel failed to tender the statement made by Mz [sic] Antonia Fantakis during the argument to exclude the 5 o'clock theory from the jury's consideration; (3) Counsel failed to follow written instruction in relation to the jury ballot argument. * Ground 18D: Legal representatives failed to follow instructions to research information with regards to Ex AA (Georges River Note) to corroborate the applicant's defence that this note was part of an instruction attached to a spiritual healing incantation. Applicant's submissions 1. In summary, the applicant contends that his defence counsel was inept in the conduct of his defence at the trial and that this incompetence went to the root of his representation at trial and enabled the prosecution to obtain a conviction on unacceptable evidence, having regard to contemporary community standards (citing Swaffield at [69]-[70] per Toohey, Gaudron and Gummow JJ). 2. The applicant accepts that counsel is not subservient (either to the client or the solicitor) and is entirely independent to act in accordance with his own judgment, his legal right to conduct the case without any regard to the wishes of the client so long as his mandate is unrecalled (citing R v Irwin [1987] 1 WLR 902; Rondel v Worsley [1969] 1 AC 191); but nevertheless emphasises that counsel has a duty to put the case to the jury in a way which is favourable to the client's interest and that it is not in the public interest that a citizen receive other than a fair trial according to law (citing R v Caine (1990) 48 A Crim R 464). The applicant maintains that there is a "significant possibility" that counsel's incompetence affected the outcome of the trial. 3. The applicant argues that in the event of a re-trial the Crown's case would be subject to a stay of proceedings due to the "calculated pattern of misconduct" followed by senior detectives and evidence that was withheld during cross-examination by counsel during the first trial. 4. The applicant further maintains that there is compelling evidence that raises serious concerns as to "the integrity of the investigation attached to a strictly circumstantial case; a prosecution supported by a brief that was non-contemporaneous in nature consistent with systemic misconduct followed throughout the investigation to obtain a conviction by way of fraud" (referring to Lazarus Estates Ltd v Beasley [1956] 1 QB 702 as to the proposition that an advantage obtained by fraud should not be retained). 5. It is said that the matter also raises a serious public interest concern as to the execution of crime scene warrants and legislative powers that prevent the occupant from supervising any search and seizure. As previous noted, the applicant contends that the seven crime scene warrants executed during the course of the investigation were executed unlawfully and with the intent to injure the public interest and the administration of justice, complaining that: execution of the warrants was not filmed; there was no appointed independent observer; property seizure/exhibit forms had not been utilised; no crime scene logs were disclosed; and no receipts had been issued to the occupant (as the applicant maintains is mandated by legislation). 6. Complaint is further made that detectives executed a number of searches and seizures on the applicant's vehicles without any warrant and without, it is said, following any of the basic procedures required for transparency and accountability purposes. The applicant says that these searches and seizures resulted in evidence tendered during the trial (without objection by defence counsel), including the soil removed from the wheel arches of the applicant's vehicle. 7. The applicant says that: The intention to significantly depart from the standard of probity to be expected from officers attached to a homicide investigation, without excuse or justification, asserts that the misconduct impugned was calculated to injure the public interest and the administration of justice. and says that it would be inconsistent with the rule of law to turn a blind eye to actions of police who have deliberately ignored imperative requirements of statute (citing Levinge v Director of Custodial Services (1987) 9 NSWLR 546; (1987) 27 A Crim R 163 at 565 per McHugh JA, as his Honour then was). The applicant says that this is more so in the present case where the Crown propounded a strictly circumstantial case (where the integrity and credibility of the investigation is of a paramount consideration). 1. Before turning to the particular sub-grounds under this ground of appeal, in reply submissions the applicant places emphasis on the issue identified as being of public interest concern as to whether or not crime scene warrants are required to comply with NSW Police Force search warrant standard operating procedures. In this regard, the applicant says that the NSW Police has taken the position that crime scene warrants are exempt from following those operating procedures (or accountability and transparency); that the NSW Ombudsman has taken the position that the Law Enforcement Conduct Commission (LECC) has jurisdiction over the procedures concerning crime scene warrants and could not assist the applicant; and that the LECC refused to conduct an investigation and had the matter referred to NSW Police. Complaint is made that the applicant has been met with a wall of silence, having requested from LECC a copy of the codes of practice attached to crime scene warrants; and that the NSW Police concluded that no investigation was warranted. 2. In his submissions, the applicant makes much complaint of the manner in which crime scene warrants were executed and the investigation conducted (see his reply submissions, for example, from [865]ff) and also appears to suggest that the refusal of all three defence teams to probe any of the multiple acts of misconduct deserves its own Royal Commission (see at [874]). 3. Complaint is made that two warrants utilised by NSW Police to seize Mr Woods' computer data and personal property in Canberra do not bear a court file stamp or a court file number. The applicant accuses the detectives attached to this investigation of having "made the calculated decision from the first day of this investigation not to follow basic procedures of accountability and transparency in order to be able to mould the evidence to suite a pending prosecution" and says his team "new [sic; knew] about this even before the trial commenced, but refused to expose this nefarious behaviour during the trial". The applicant complains that he was ridiculed by the learned Crown during cross-examination (referring to T 2338-2339) and says that this gave the jury the impression that the applicant's allegations of police corruption must be a recent invention. 4. Turning then to the particular sub-grounds under this overall incompetence ground of appeal, the applicant's submissions may be summarised as follows. Ground 18 A(1): Failure by counsel to utilise emails produced from subpoena issued 3 August 2015 1. This complaint relates to the failure of counsel to cross-examine and tender a number of emails produced in answer to a subpoena served on the Commissioner of Police on 3 August 2015, those emails relating to the seizure and subsequent search of the applicant's blue Transit van on 13-14 August 2011. 2. The applicant says that these emails would have led to a positive finding that four detectives, at the behest of the officer in charge of the investigation, generated false and misleading statements in relation to the continuity of exhibits seized from the applicant's vehicle on 14 August 2011, including the Georges River Note (Ex AA). 3. In particular, reference is made to an email sent by one of the police officers on 17 May 2013 (see Annexure 2 at p 5 of the applicant's affidavit sworn 11 February 2022), which is said to be an instruction to the three other detectives of what needed to be included in their amended statements and attaching a copy of the sender's amended statement (which the applicant maintains was to ensure that all amended statements were corroborative). 4. The applicant says that the amended statements were served to remedy earlier conflicting statements made by the four detectives "and to bridge the shortfall of proof" to validate the ERISP documents on which the officer in charge relied when compiling the prosecution brief. The applicant accuses all five detectives of perverting the course of justice as their amended statements were included in the prosecution brief and utilised during the trial. 5. The applicant says that one of the police officers (Detective Senior Constable Henderson) conceded that his statement made on 17 May 2013 (see Annexure 10 to the applicant's affidavit sworn 11 February 2022) in relation to searching and seizing exhibits on the roadside was false and misleading (see T 961.7-13) and the applicant says that this should be conclusive when assessing the email sent by Detective Senior Constable Dodd to his three subordinates as to what they needed to state in their amended statements (see above). 6. Complaint is further made that defence counsel failed to elicit during cross-examination at trial that the search and seizure executed on the applicant's vehicle was carried out unlawfully (there being no warrant), without following standard operating procedures (as it was not filmed, there was no appointed independent observer, no property seizure/exhibit forms were utilised and no receipt was issued to the applicant). 7. The applicant says that this was compounded by the conflicting evidence given by one of the police officers (Detective Senior Constable Lye) on 31 October 0211 as to the discovery of the Georges River Note (it originally being said that the note was discovered within a sleeve inside the applicant's blue hard cover diary and then that it was discovered in a small grey plastic note book that had been seized from the applicant's vehicle on 14 August 2011). The applicant says that Detective Senior Constable Lye conceded that the discovery process of this note was not conducted according to standard operating procedures and no contemporaneous account was made of the event. 8. The applicant repeats his contentions as to the significance of the Georges River Note in the Crown case and refers to his evidence at trial that the note had been unlawfully seized during the execution of the crime scene warrant 278/11 from the Wilga Street Property and "planted" in the applicant's diary (see the applicant's submissions at [1904]ff). The applicant maintains that both of the operations leading to the discovery of the Georges River Note involved a series of unjustified improprieties and breaches of law, warranting an application to exclude the note on a s 138 basis (as noted above, there was indeed an application to exclude the note – which was dealt with in the trial judge's Admissibility Judgment on 26 February 2018; but that was put pursuant to ss 90 and 137 of the Evidence Act, not s 138 of the Evidence Act as is here contended). The applicant contends that the pattern and gravity of the deliberate breaches of the law favoured the exclusion of the evidence on a public policy basis (citing DPP v Marijanceivc at [68]; R v Grech; R v Kadir [2017] NSWCCA 288 – though, as to the latter, see the High Court decision in Kadir v The Queen; Grech v The Queen (2020) 267 CLR 109; [2020] HCA 1). 9. As to the second of the search and seizure operations about which the applicant complains, this was a search of the vehicle after it was towed to the Bass Hill holding yard (resulting in the seizure of the applicant's diary and the loose Georges River Note). 10. The applicant says that the cross-examination of the detectives was the subject of much controversy because of the obvious conflict between the original and amended statements. Complaint is made that no question was raised by counsel to Detective Senior Constable Forman or Detective Senior Constable Henderson as to the refreshing of their memory by reference to statements made by Detective Senior Constable Dodd. It is submitted that had counsel cross-examined all four detectives on the 17 May 2013 email the explanation by those detectives that conflict in the statements was due to an oversight or to confusion could easily have been negated. The applicant contends that the Crown's submission (at [29]) that the four officers did not pervert the course of justice by generating false and misleading statements cannot be accepted. 11. The applicant maintains that the evidence given by all four detectives at trial confirms that later statements made by all four detectives were false and misleading with regard to the continuity of a main exhibit tendered during the trial. Complaint is made that, during cross-examination, emails between the officer in charge and all four detectives were acknowledged but that counsel only referred to two of these emails (referring to evidence on 27 February 2018 at T 25.37-50; 19 March 2018 at T 964; and T 990; T 991). Further, complaint is made that even then only portions of these emails were utilised and were only marked for identification (MFI 82). Complaint is made that during the cross-examination of Detective Senior Constable Dodd, his counsel only referred to the first paragraph of the email sent on 7 May 2013 (MFI 79); and the email was only marked for identification and no request was made for it to be tendered as an exhibit. 12. In submissions at [1920]-[1932], the applicant sets out further details as to the emails and his arguments as to the conflicting statements, concluding that there was no rational excuse or justification for counsel not to have utilised the email sent on 17 May 2013 by Detective Senior Constable Dodd (and others) to elicit that all four detectives "put their heads together, with the knowledge of S/s McGee, to generate false and misleading statements intent on perverting the course of justice". 13. The applicant says that the contested issue of who was present during the search of his vehicle could have been resolved had the NSW Police produced the log books held by the Bass Hill holding yard (that being sought in the subpoenas issued on 15 October 2015 (item 8) and 28 June 2017 (item 18)). The applicant says that this controversy was known by counsel before entering into negotiations with the prosecution as to the latter subpoena, yet the subpoena was narrowed by consent to exclude documents held by the Bass Hill holding yadr; that there is no rational explanation why counsel did not press for the production of the documents held by the Bass Hill holding yard and the computer data seized from the applicant's premises; that there was a legitimate forensic purpose to compel production of those records; and that counsel's decision to resolve and narrow the subpoena "only served to oppress" him and to provide the NSW Police with an improper advantage. It is said that this significant misbehaviour (of counsel) aligned with counsel's failure not to cross-examine a single detective on the emails and other documents made available by the applicant identifying the calculated pattern of improprieties and contraventions to imperative statutory requirements. 14. As already noted, the applicant complains that both searches of the applicant's vehicle were unlawful in that the detectives failed to follow standard operating procedure and to comply with legislative requirements (being not filmed, unsupervised as there was no appointed independent observer, with no property seizure/exhibit forms utilised and no receipt issued). Complaint is made that the second search and seizure at the Bass Hill holding yard was executed without a warrant (and not in his presence). 15. The applicant argues that it follows that this Court cannot accept the Crown's submission (at [32]), that the four officers in question were permitted to conduct the search and seizures pursuant to s 36 of the LEPRA. The applicant says that these powers were only applicable at the vehicle stop and not after the vehicle had been parked in the holding yard. It is submitted that this second search required a further warrant that had to be executed according to search warrant Standard Operating Procedures and in compliance with LEPRA. 16. The applicant says in this regard that the only item seized at the road stop was a Stanley knife that was held by Mr Cheong; and that all the remaining items had been seized during a search that was conducted after the vehicle the vehicle had been parked at Bass Hill holding yard (including the applicant's diary and the Georges River Note). 17. The applicant says that it is for this reason that the detectives generated the false and misleading statements on 17 May 2013, i.e., to justify the legality of the seizure pursuant to s 36 of the LEPRA. 18. The applicant contends that once a vehicle is parked in a holding yard it is still considered as a private premises, and any entry to conduct a search, to seize or conduct a procedure requires a warrant; as was done on 9 September 2011 (referring to [1982]-[2012] of the applicant's earlier submissions); and that in any event, this was a controlled operation that had been planned earlier in the day, the applicant saying that there was simply no excuse why detectives refused to follow basic procedures to enable proof of continuity. 19. The applicant contends that there were numerous search and seizures that were conducted on the applicant's vehicle leading up to 9 September 2011 and afterwards; all of which the applicant says were executed without any warrant. It is noted that defence counsel cross-examined Senior Constable Gibson on the issue as to whether he needed authorisation to examine the applicant's vehicle on 15 August 2011 (T 1323); and that Senior Constable Gibson said he would have needed something. Complaint is made that Mr Todd did not call on those documents and it is said that he simply ignored all the other unauthorised searches/seizure executed on the applicant's vehicles. 20. The applicant is adamant that a proper appraisal of the prosecution brief confirms that, apart from CSW 3004/11 executed on 9 September 2011, all the remaining search and seizures conducted on the applicant's vehicles, including the soil examined by Professor Fitzpatrick, were conducted without a warrant and ignoring Standard Operating Procedures and LEPRA (see below). It is noted that the NSW Police confirmed in response to the applicant's subpoena served on the Commissioner of Police on 20 September 2021, item 3, that all warrants had been served in the prosecution brief. It is noted that apart from CSW 3004/11, the prosecution brief fails to identify any warrant for at least six further search and seizures that had been conducted on the accused's vehicles. 21. In reply submissions, the applicant says that the Crown (and Mr Todd in his affidavit) have failed to address the email sent by Detective Senior Constable Dodd on 17 May 2013 to his subordinates (with which it is said Detective Senior Constable Dodd provided the three other detectives with a copy of his statement "in aid of corroborating a false account of events that occurred on 13-14 August 2011 to secure evidence of continuity") and that Mr Todd has not addressed why none of the emails he did use during cross-examination was tendered or "properly utilised". 22. The applicant maintains that there was an abundance of evidence to warrant an application to exclude the Georges River Note on a s 138 basis, when taking into account how the vehicle was unlawfully searched, the alleged discovery of the note made by Detective Senior Constable Lye who it is said failed to follow standard operating procedures and the unlawfulness said to have followed during the execution of CSW 278/11; and the evidence that Mr Todd had obtained from the response provided by NSW Police in relation to the subpoena served on 28 June 2017. 23. Thus, the applicant contends that Mr Todd's assertion at [6] of his affidavit affirmed on 11 April 2022 that there was no proper basis to put any assertions of corrupt or conscious wrongdoing by NSW Police cannot be accepted. Ground 18 A(2): Failure by counsel to utilise Supreme Court Bail Transcripts & Submissions "Enhanced" LD Recordings, Ex CS & CX 1. This ground relates to a bail application that was heard by Garling J on 18 August 2016 (see Annexure 4 of the affidavit sworn by the applicant on 11 February 2022), during which application the applicant cross-examined Detective Sergeant McGee as to various matters including the listening device material (Exs CS and CX), the issue as to the withholding of or refusal to provide receipts; and matters in relation to Mr Wood's drug matter (the applicant asserting that exhibits had been planted in relation to that matter). The applicant says that the submissions filed in relation to that hearing clearly identified the defence that the applicant sought to elicit at trial. The applicant says that all his legal representatives had been briefed on the cross-examination of Detective Sergeant McGee and the documents filed in the bail application. 2. The applicant's complaint is that his defence counsel did not rely on the cross-examination of Detective Sergeant McGee during the bail hearing (as to the authenticity of the "enhanced" listening device material that was tendered at trial, Exs CS & CX). The applicant's complaint is that the provenance of the enhanced recordings was not proved (for the reasons outline in his submissions at [2035]-[2039]). 3. First, as to the enhanced recordings, the applicant notes that, in her affidavit of 4 August 2016, Detective Sergeant McGee deposed that the enhanced listening device material originated from a single disc that had been provided by STIB on 29 November 2011; and that this single master copy was conveyed to STIB by Detective Senior Constable Lye on 12 March 2011 resulting in the enhanced recordings. 4. The applicant says that statements made by two independent officers attached to the STIB (Detective Senior Constable Van Dyke and Senior Constable Maglicic) on 18 May 2016 confirmed that three discs had been returned to STIB by Detective Senior Constable Lye on 12 March 2012 to be "enhanced" and not the single master copy provided by STIB on 29 November 2011. The applicant relies on this "conflict in evidence" as establishing a break in the chain of custody of the master copy before the enhanced recordings were generated. 5. The applicant cross-examined Detective Sergeant McGee on this issue; and says that there was no mistake (as Detective Sergeant McGee said she believed there was somewhere); rather, he asserts that the master copy had been altered or amended resulting in three separate discs being created by an unknown party or parties, and without knowing what amendments had been made. 6. The applicant notes that Detective Senior Constable Van Dyke and Senior Constable Maglicic were examined in a voir dire hearing by counsel on 22 February 2018 (T 58-63) and his complaint is that even though it had been brought to Mr Todd's attention that three discs had been enhanced (not the single master copy) no objection was raised by counsel to exclude the tender of the enhanced recordings as instructed by the applicant. Reference is made to the transcript at T 50.2-5 of the cross-examination of Senior Constable Magligic. The applicant takes issue with the fact that Mr Todd "ignored the response by [Senior Constable] Maglicic who informed Mr Todd that it was three (3) CD's that had been brought in by [Detective Senior Constable] Lye to be enhanced and not the single Master copy disc". (The relevant segment of the transcript appears to be a reference to the answer that within an envelope that was provided to the witness there were "three DVD's with files located on each DVD".) 7. The applicant's complaint is that Mr Todd was clearly aware that STIB only provided detectives with a single master recording disc; and the applicant says that it follows that Mr Todd was aware that the "enhanced recordings" were not generated from the original recording, warranting an application to exclude the enhanced recordings. 8. The applicant complains that Mr Todd "chose to ignore" the breach in the chain of custody of the master copy before the enhanced recordings had been generated and failed to follow instructions and use the bail examinations of Detective Sergeant McGee to elicit during cross-examination that there was a serious breach in the continuity of the original recordings. Complaint is made that Counsel failed to cross-examine Detective Senior Constable Lye on the issue as instructed (see T 1607 at 3 April 2018); and that Detective Sergeant McGee was not cross-examined on her affidavit to elicit that the enhanced listening device recordings were not made from the single master copy disc. 9. The applicant says that there was no rational explanation or forensic advantage to justify counsel's conduct for refusing to follow instructions to have these enhanced recordings excluded; and that counsel failed to utilise evidence provided by the applicant during the voir dire hearing to test the provenance of the enhanced recordings (that the applicant says were heavily relied upon by the prosecution to demonstrate consciousness of guilt). 10. The applicant says that the Crown's submission (at [23]) that there was no proper basis on which trial counsel could have sought the exclusion of the listening device recordings cannot be accepted (for the reasons set out in his submissions at [2035]-[2039]); and that the NSW Police failed to prove the provenance of these enhanced recordings. 11. As to the refusal by the NSW Police to provide receipts (see [2040]-[2064] of the applicant's submissions) this complaint relates to the fact that defence counsel did not use certain documents during his cross-examination of Detective Sergeant McGee on the issue of the absence of receipts for items seized during execution of search warrants during the course of the investigation. 12. The applicant says that Detective Sergeant McGee conceded during the bail hearing that a calculated decision had been made by senior co-ordinating detectives not to provide exhibit lists (which the applicant refers to as receipts). Pausing here, while it is true that Detective Sergeant McGee gave evidence that "a decision was made, because the investigation was still current, not to provide [the applicant] with the exhibit list"; it is relevant to note that Detective Sergeant McGee also stated that she "would have to check [her] records to see whether there was a property seizure form", and that if there was such a form, the applicant was provided with one (see T 48.1-8, included as Annexure 4 of the applicant's affidavit sworn 11 February 2022). 13. The applicant relies on cl 8(1) of the LEPR Regulation which provided as at 2011 that a person who seizes a thing while executing a search warrant, or a crime scene warrant issued under Pt 7 of the LEPRA, in any premises must provide the occupier with a receipt acknowledging seizure of the thing if the occupier is then present and it is reasonably practicable to do so. 14. The complaint by the applicant is that the prosecution relied solely on EFIMS details to identify exhibits seized but that EFIMS details only document exhibits and their movements after they have been booked at a police station and do not provide a contemporaneous account of exhibits found in situ and removed from premises. The applicant contends that EFIMS documents "have nothing to do with what is occurring during a warrant, nor can they be relied upon to negate a complaint that undocumented exhibits have been removed from premises for an improper purpose, including the planting of evidence at a later stage". 15. The applicant maintains that it must be inferred that the decision of senior detectives not to follow basic standard operating procedures during all crime scene warrants, refusal to comply with LEPRA and refusal to issue receipts, was with the intent to obtain an improper advantage to pervert the course of justice. 16. The applicant says that he instructed his legal representatives that his defence was centered on persuading the jury that refusal by detectives to comply with standard operating procedures and statute (combined with the intention to withhold receipts) could only be explained for the improper advantage of enabling a flexible use of undocumented or documented exhibits seized from his premises to suit a pending brief. The applicant complains that the wilful neglect of duty by detectives went a long way to explain the non-contemporaneous nature of the prosecution brief. 17. The applicant notes that Detective Sergeant McGee was cross-examined at the trial as to whether exhibit lists had been issued after the warrants were executed and her evidence was that she had provided those exhibit lists to the applicant. The applicant complains that, notwithstanding that defence counsel had compelling evidence to the contrary, defence counsel did not go further to elicit that senior detectives had unlawfully withheld receipts from him after execution of the crime scene warrants and the series of search and seizures executed on the applicant's vehicles (referring to emails and faxes from the applicant's legal representatives to the effect that the police had been refusing to provide receipts to him). The applicant complains that these documents were not put to Detective Sergeant McGee in cross-examination. 18. The applicant submits that there was no rational explanation or forensic advantage to justify counsel's conduct in not utilizing the said documents during cross-examination to expose "the calculated intention by senior detectives to withhold receipts from the first day the investigation commenced". 19. As to the submission by the Crown (at [26]) that there was no useful purpose by further cross-examination of Detective Sergeant McGee in relation to whether the applicant was provided with receipts in respect of items seized from the premises and vehicles during the course of crime scene warrants, the applicant says that this cannot be accepted having regard to the legislation mandating that an occupant must be issued with a receipt in respect of things seized while executing a search or crime scene warrant. 20. The applicant maintains that the deliberate intention by senior detectives to withhold the issue of receipts on all seven crime scene warrants and numerous searches conducted on the applicant's vehicle allows for the strong inference that detectives sought to have a flexible use of exhibits seized to suit a possible pending prosecution (referring to Annexure 9 of the applicant's affidavit sworn 11 May 2022). 21. Combined with the fact that all crime scene warrants were not filmed, and no contemporaneous notes were made of exhibits leaving the premises, the applicant submits that it was a reasonable basis to accuse police that they had "planted" evidence, including the Georges River Note and drugs, during the course of the investigation, to suit the prosecution case "and the agenda of the investigation". 22. The applicant says that defence counsel was aware from the material included in (and excluded from) the brief and what had been produced from the subpoena served on 28 June 2017, with regard to the first crime scene warrant (CSW 278/11) executed on the applicant's home and the proposed crime scene, that it was executed: without being filmed, that there was no appointed Independent Observer (noting that the applicant was prevented from being present during the three days police had exclusive possession of the applicant's home); that property seizure/exhibit forms were not utilised to document what exhibits were being seized during the three days; no crime scene logs were produced in the prosecution brief; and that NSW Police refused to provide the applicant with a receipt of exhibits seized from his home. 23. Complaint is made that Mr Todd failed to utilise this evidence when it was asserted by Detective Sergeant McGee under oath during the trial that exhibit lists were provided to the applicant. It is said that this goes a long way to explain the non-contemporaneous nature of the prosecution brief and why it was possible for all four detectives to generate false and misleading statements to secure proof of continuity of the Georges River Note. 24. The applicant says that Mr Todd was well aware of the legal correspondence sent to Detective Sergeant McGee during the course of the investigation confirming that the applicant was not issued with a single receipt with regards to any crime scene warrant or search conducted on his vehicles. The applicant poses the rhetorical question as to how the prosecution could discharge its onus of proving continuity with such misconduct (i.e. non-compliance with standard operating procedures). It is said that there is no explanation or justification why detectives did not follow basic procedures to ensure proof of continuity of exhibits seized; and that this wilful neglect of duty was calculated to injure the public interest and the administration of justice. Alleged planting of Exhibits 1. As part of this ground of appeal, the applicant raises again allegations as to the unlawful destruction and planting of exhibits by Detective Sergeant McGee during the course of the investigation (referring to [43]-[50] in the applicant's submissions filed in the bail application). The allegation is that Detective Sergeant McGee destroyed drugs located in the applicant's home (drug Ex X0000803 009) in the unrelated drug matter of Mr Woods. 2. This exhibit was seized from the Wilga Street Property on 14 August 2011 during the execution of CSW 278/11. The applicant says that counsel was informed that Detective Sergeant McGee was able to utilise this exhibit in the matter of Mr Woods as no receipt had been issued to the applicant after CSW 278/11 had been executed (see the applicant's submissions at [2069] ) and that the first time the applicant became aware of any exhibit seized during the execution of that warrant was on 10 December 2012 (16 months later) when the applicant was charged for drugs discovered during the execution of that warrant. The applicant says that the same drug exhibit was utilised in the drug matter of Mr Woods (MFI 89). That drug exhibit was destroyed on 15 December 2011 (with the assistance of a police officer whose statement made on 10 January 2012 was included in the prosecution murder brief and the drug brief in the matter involving Mr Woods). 3. The applicant says that a statement made on 8 March 2013 by Detective Senior Constable Blanch states that on 31 January 2012 this exhibit was "re-packaged" with the assistance of the same police officer who had deposed to it being destroyed six weeks earlier. The applicant says that the police were unable to produce any authority from any senior police officer authorising this destruction (something sought in the subpoena served on 28 June 2017 at item 13). The applicant contends that this police officer facilitated the manipulation of the exhibits "at the behest of" Detective Sergeant McGee; that it may be inferred that Detective Sergeant McGee had "an exhibit officer in her pocket" and notes that the same police offer was involved in the booking out and in of the applicant's property on 31 October 2011 when it is said that Detective Senior Constable Lye discovered the loose Georges River Note. 4. The applicant says that the entire "re-packaging" on 31 January 2012 was filmed by Detective Sergeant McGee and the video recording (produced by NSW Police in response to item 24 of the applicant's 28 June 2017 subpoena) confirms that all the drugs being "re-packaged" are "attached to the matter of Mr Woods, including exhibit X0000803 009" that had been seized from the applicant's premises during the execution of CSW 278/11. 5. The applicant says that his former solicitors were served with this video recording but its production was not made known to him and the first he was made aware of it was in January 2022. The applicant says that had counsel utilised the video recording and the documents referred to above during his trial it would have warranted a Prasad invitation (presumably a reference to a 'Prasad direction' pursuant to R v Prasad (1979) 23 SASR 161 at 163 per King CJ, which was recently held to be contrary to law by the High Court in Re Director of Public Prosecutions Reference No 1 of 2017 (2019) 267 CLR 350; [2019] HCA 9) at the end of the prosecution case. 6. The applicant complains that Mr Todd has not addressed the documents that were provided to legal representatives in relation to independent drug matters attached to Mr Woods and the applicant, in which Detective Sergeant McGee was the officer in charge in both matters. It is noted that the Crown has taken the position (at [33]) that the material relied upon the applicant does not provided a proper basis upon which counsel could have put, or even explored, an allegation that Detective Sergeant McGee unlawfully destroyed or planted exhibits. 7. In reply submissions, the applicant notes that Detective Sergeant McGee charged the applicant for drugs on a deemed supply charge that had had been destroyed before the charges were generated (a relevant fact that the applicant says was omitted from the charge sheet and prosecution brief). The applicant says that the charges were an abuse of the court's process and had been utilised to obtain a forensic procedure order against the applicant. 8. The video produced by NSW Police in response to item 24 of the applicant's subpoena served on 28 June 2017 was a video made in the matter of Mr Woods and identified drug that had been seized from the applicant's home during the execution of CSW 278/11. 9. The applicant says that the breakdown of Mr Woods matter and the drug charges served on the applicant (referring to [2085]-[2173] of the applicant's submissions), clearly identifies why Detective Sergeant McGee "needed to plant these drug exhibits in the matter of Mr Woods". In his submissions at [2085] the applicant goes into some detail as to the drugs matter involving Mr Woods. In summary, Mr Woods' vehicle was seized on 7 September 2011, three weeks after the execution of CSW 278/11 and the seizure of Ex X0000803 009 from the Wilga Street Property. Complaint is made as to the lawfulness of the search procedure and it is suggested that the destruction of the drugs was to prevent any independent assessment of the net weight stipulated on the DAL certificate that had been issued. 10. The applicant says that the DAL certificate in the brief served in Mr Woods' drug matter (eight days after the alleged discovery) differed only by less than 1 gram with the gross weight on the charge sheet. The applicant says that the conversation recorded on a listening device on 25 November 2011 between him and Mr Woods was Mr Woods ventilating his frustration because he had been charged by Detective Sergeant McGee for cannabis that simply was not located in his vehicle on 7 September 2011; and the assertion of a falsified DAL certificate. The applicant says that in context this private conversation had no nexus to any matter associated with the disappearance of Mr Karmas or a consciousness of guilt; but was a "rant of anger" directed at Detective Sergeant McGee because she had charged Mr Woods with drugs not present in his vehicle on 7 September 2011. The applicant attaches significance to the fact that the request for access to the drugs (for independent analysis) was followed by advice from the police as to its intention to destroy some of the items. 11. The applicant submits that: If we are to believe the authenticity of this DAL certificate, this Court will have to believe that it was possible to have the certificate generated in 8 days and that the net weight and gross weight only varied by 1 gram, notwithstanding, that there were numerous plastic bags attached to the gross weight. Most interesting where [sic] the seed charges that were issued weeks after Mr Woods van had been seized; seeds that had been allegedly discovered by [Detective Senior Constable] Blanch in a further search of Mr Woods' vehicle at Bass Hill holding yard; seeds that had been missed by forensic examiners. A search and seizure that was conducted without any warrant, was not filmed and in the absence of any independent observer; it is no wonder why the seed charges were dismissed. 1. The applicant says that this was all made possible because the original search of Mr Woods' van on 7 September 2011, under the supervision of Detective Sergeant McGee, was: not filmed; executed in the absence of any independent observer and only after Mr Woods was not present; no property seizure/exhibit forms utilised; and the drugs were not filmed/photographed once they were taken back to Bankstown LAC. The applicant says that Mr Woods was charged for a strictly indictable quantity of cannabis and was made subject to bail, preventing him from leaving NSW; an improper advantage that suited the investigation; and that this explains "why NSW Police went as far as extraditing Mr Woods when he relocated to Canberra and utilising fraudulent warrants to seize his personal computer data and documents" (see the more extensive submissions at [2085]-[2173], which includes allegations of malicious prosecution and charges brought with an intent to pervert the course of justice). Ground 18A(3): Failure to utilise emails/faxes sent to detectives during the investigation 1. This ground of complaint relates to defence counsel not having used, in his cross-examination of Detective Sergeant McGee, a series of correspondence sent by the applicant and his solicitors to senior officers during the course of the investigation identifying the intent by the strike force (Flaggy) to withhold receipts of exhibits seized. 2. The applicant says that it was plainly obvious to counsel that the intent to withhold receipts was a calculated decision for an improper purpose but that this was not elicited during cross-examination. Reference is again here made to the cross-examination of Detective Sergeant McGee during the bail hearing (see above) that a decision had been made by senior co-ordinating detectives not to provide receipts (exhibit lists) to the applicant form the onset of the investigation. It is said that Mr Todd was briefed on the fact that the applicant had not been issued receipts for seven crime scene warrants that had been executed on his premises, including CSW 278/11; and that counsel was made aware that the prosecution brief was absent of any such receipt for all seven crime scene warrants. Ground 18(A)(4): Subpoenas served on NSWPF on 12 October 2015 & 28 June 2017. 1. This complaint relates to the subpoenas served on the Commissioner on 12 October 2015 and 28 June 2017. The applicant says that the subpoena and attached submissions clearly indicate that the applicant was seeking access to his computer data and the Bass Hill holding yard records. The applicant notes that the initial subpoena was contested in the local court; that an appeal was filed in the Supreme Court; and it is said that it was recommended that the subpoena be re-filed in the Supreme Court. 2. The complaint here made is that defence counsel, when dealing with the subpoena served 28 June 2017, kept the applicant "in the dark" as to what had been negotiated with the prosecution before the matter went before the trial judge on 15 December 2017. The applicant complains that he never received any correspondence as to the resolution of this subpoena and was not provided a copy of the video recording produced in relation to item 24. 3. The applicant says that it is clear from the documents produced by his then solicitors that he did not consent to narrowing or not pressing the production of the Bass Hill holding yard documents or obtaining a copy of his computer data that had been seized by NSW Police (both of which had been sought in the subpoena served on 12 October 2015). 4. In his submissions from [2180], the applicant deals with the subpoena complaint. The applicant submits that the narrowing of the subpoena only served to oppress him and benefit the NSW Police. 5. In his submissions, the applicant raises issues as to various of the requests for production, including items 1, 6, 10, 12, 13, 18, 24, 27 and 28. In reply submissions, the applicant focuses on items 18 and 28. 6. As to item 1, the applicant notes that the response from the NSW Police confirms that he was not issued with any contemporaneous receipt of exhibits removed from his premises. 7. As to item 6, seeking production of the current odometer reading for the applicant's vehicle that had been serviced hours before the vehicle was seized, the applicant complains that even though counsel was informed that the police response to this was misleading this item was not pressed by counsel and nothing was done to seek access to the odometer reading. 8. As to item 10, the response confirmed that CSW 278/11 was not filmed. Complaint is made that no further enquiries were made and there was no cross-examination on this issue at the trial. 9. As to item 12 (seeking documentation of drug exhibits being weighed before the drugs had been sent to DAL), complaint is made that the video produced was not made available to the applicant or addressed by counsel. The applicant appears to contend that the video would have proved beyond reasonable doubt that evidence had been planted in the course of investigation and would have explained why standard operating procedures were not followed and why receipts were withheld, warranting a Prasad invitation (see above at [644]). 10. As to item 13, complaint is made that the police failed to respond to the production of all documents authorising the destruction of drugs discovered at the Wilga Street Property during the execution of CSW 278/11. It is submitted that failure to comply with legislative requirements favoured the conclusion that the destruction of drugs in the "Woods matter" was simply a ruse to prevent Mr Woods from being able to have his exhibits independently examined for weight. The applicant complains that his defence counsel was well aware that the drug charges issued by Detective Sergeant McGee on 10 December 2012 were an abuse of process and were issued for a series of improper purposes. 11. As to item 18 (seeking Bass Hill holding yard documents), in respect of which the NSW Police asserted that these documents had already been served in the brief, the applicant says that defence counsel was informed in writing and in person that the brief did not include a copy of any original documents held by Bass Hill holding yard and that the response by NSW Police was misleading and intent on preventing disclosure of basic documents that must be in existence. The applicant says that there is no excuse for Mr Todd not to have pressed the production of the Bass Hill holding yard records (as these records must exist); and that paragraph was unjustifiably narrowed by defence counsel. 12. In reply submissions, the applicant is adamant that the response by NSW Police that these records were produced in the brief was false. It is submitted that this is evident as counsel did not use any such records during his cross-examination of the four officers involved during the seizure of exhibits at Bass Hill holding yard. 13. The applicant says that he provided written instructions to counsel and his former solicitors, well before the subpoena negotiation concluded, informing legal representatives that the prosecution brief was absent of any document produced by Bass Hill holding yard; and notes that none of the documents produced by his former solicitors indicates that this paragraph was no longer being sought by the applicant. 14. The applicant says that it is obvious that these records must exist and would have been paramount in testing who was present during the search of the applicant's vehicle and towards the credibility of all four officers; a search and seizure that was conducted without a warrant resulting in the discovery of the Georges River Note. The applicant says that there is simply no forensic purpose why this paragraph was not pressed, taking into account the controversy surrounding searches conducted on the applicant's vehicles and noting that the item had been sought in a subpoena served on the Commissioner of Police on 20 September 2021, item 12. 15. Insofar as the Crown relies on the affidavit of Detective Sergeant McGee, dated 13 October 2021, as to the relevant Bass Hill documents, the applicant says that Detective Sergeant McGee has misled the court by asserting that these documents had been produced in the prosecution brief. 16. As to item 24, which sought the production of DVD recording made by Detective Sergeant McGee on 31 January 2012 documenting the repackaging of exhibits, the complaint made is that the applicant had no idea that it had been produced to his legal representatives until January 2021; that it confirms that Ex X0000803009 did form part of the drugs in the matter of Mr Woods; and that the inescapable inference is that no exhibit at trial could be trusted knowing that Detective Sergeant McGee had the exhibit officer in her pocket. Complaint is made that the failure to elicit this evidence during the examination of Detective Sergeant McGee and Detective Senior Constable Blanch denied the applicant due process and grounds to have stayed the murder proceedings. 17. As to item 27, which sought the production of the DAL report attached to an exhibit seized on 7 June 2013 during the execution of SW 1274/12 and 1275/3, in respect of which the NSW Police response was that this had been produced in the brief, complaint is made that this is misleading (see at [1128]-[[2250]). Complaint is made that counsel was made aware that the destruction of drugs on 15 December 2011 was a ruse to prevent Mr Woods from being able to test the weight of the drugs and that there is no explanation or justification for the defence counsel's failure to follow the applicant's instructions and press for the production of item 27. 18. As to item 28 (which sought the computer data seized by NSW Police from the Wilga Street Property on 7 June 2013 in relation to the intimidate charges), the applicant says that the response by the NSW Police was that this data had been produced in 2016 in response to a subpoena issued by Mr Woods. 19. The applicant says that Counsel was informed in writing that the applicant was seeking production of data from his home and not that seized from Mr Woods when he was residing in Canberra; and that Counsel was instructed to press this production. It is said that at no time was the applicant notified that this data would not be pursued. 20. The applicant says that he had scanned extensive legal literature on his computers and other documents including court transcripts inferring that Detective Sergeant McGee had generated a false DAL certificate dated 16 September 2011 in Mr Woods' matter. The applicant says that according to the documents produced by his former solicitors, emails sent between Mr Todd and the Crown dated 13 and 14 December 2017, identify that access has yet to occur as to the computer said to have been produced by the police at Burwood Local Court. 21. It is noted that the letter dated 13 December 2017 (Annexure B of Mr Todd's affidavit affirmed 29 April 2022 at [26]) states with regards to the computer data that the material has purportedly been produced to Burwood Local Court; and that Mr Todd sought to have this paragraph reserved until that material has been examined and identified; and that an email dated 15 December 2017 identifies that item 28 is to be stood over so the defence can check what was produced to Burwood Local Court. It is noted that her Honour stood the subpoena over to 19 December 2017 and directed the parties that if there was any issue with item 28 they were to contact her Honour's associate so the matter could be re-listed. 22. The applicant says that it is plainly obvious that the applicant's representatives failed to attend Burwood Local Court and seek access and check the computer data that NSW Police asserted had been previously produced; no such data was provided to the applicant and the matter was never raised again with her Honour. 23. The applicant says that the data that had been produced to Burwood Local Court belonged to Mr Woods and was not the data that the applicant was seeking to be produced. The applicant was seeking production of data seized from his residence on 7 June 2013 pursuant to SW 1274/13 &1275/13. 24. Complaint is made that the applicant was never contacted by his legal representatives and informed as to what had occurred with this paragraph or any paragraph; as indicated by an absence of communication from his previous solicitors and him; and that the applicant was not called to be present when the matters went before the Court (it is said that AVL facilities were available but not utilised.) 25. It is noted that NSW Police were compelled to produce the applicant's computer data in 2020 subsequent to a subpoena that had been served on the Commissioner of Police during the Intimidate Police matter that was heard before LCM Rodgers. The applicant says that if this data had been previously produced, as asserted in the response to the subpoena 28 June 2017, the police would not have needed to comply with the subpoena in 2020. 26. The applicant complains that his legal representatives failed to exercise due diligence to obtain the computer data that the applicant had been seeking access to since his first subpoena that was served on the Commissioner on 12 October 2015. It is said that it is clear that a substantial portion of the prosecution brief included portions of the data seized from the applicant's home, but there were copious amounts of literature that would have assisted the applicant during his trial; documents that had been deliberately withheld by the police. It is noted that the applicant applied for bail during the course of the present appeal, fundamentally, to be permitted access to facilities to examine the voluminous quantity of computer data produced but this was refused; after which he sought orders that NSW Corrective Services provide the necessary facilities but no such orders were made. 27. The applicant contends that this Court has in effect lent itself to an abuse of its own process by denying the applicant a proper opportunity to demonstrate what material could have been relied upon towards an acquittal, in order to make proper and sufficient representations on ground 15. 28. The applicant says that there simply was no excuse or forensic benefit to deprive the accused access to his computer data, the Bass Hill holding yard records or the COP Entries with regards to Mr George Karmas before his trial had commenced. The applicant says that he did not consent to "adverse negotiations' with the Crown Solicitors Office to narrow the scope of the subpoena. 29. Insofar as the Crown states (at [38]) that the gravamen of the applicant's complaint is that the trial counsel engaged in negotiation with the Crown Solicitor's Office in respect of the subpoena without his knowledge and consent, the applicant accepts that Mr Todd's position as the applicant's counsel conferred on him the authority to engage in negotiations. However, he maintains that he was unaware of the negotiations. 30. The applicant insists that he never agreed to narrow the request in items 18 or 28 (and that this was not identified in any document presented by Mr Todd or Zahr Partners); that he did not agree to withdraw item 33 (as stated by Mr Todd), and was not consulted before entering an agreement to withdraw item 4. 31. It is noted that Detective Senior Constable Scipione was cross-examined on the issue of the urgency search warrants applied for on 14 August 2011. The applicant says that he attended the Parramatta Local Registry on 5 June 2013 and inspected the recorded applications to these two urgency warrants; and that it was obvious that Detective Senior Constable Scipione provided false and misleading particulars to the issuing officer. 32. The applicant says that, more importantly, none of the documents produced by Zahr Partners or Mr Todd identifies that the applicant had been informed as to the resolution of this subpoena, or what had been negotiated. It is said that the reason why the other items were not included in the subpoena issued on 15 January 2018, is because the applicant had not been informed that the subpoena served on 28 June 2017 had been resolved. 33. It is submitted that Mr Todd's assertion (at [15] of his affidavit), rejecting any allegation that he failed to consider the issues regarding subpoenas or did so without instructions, should not be accepted. The applicant says that the documents produced from the applicant's legal practitioners confirm that the applicant was not notified how his subpoena was negotiated/narrowed and what documents had been produced. 34. The applicant maintains that Counsel's decision not to press the production of the applicant's computer data and to have this excluded from the subpoena during the negotiations confirms that Mr Todd denied the applicant due process even before the trial commenced. Ground 18 B: Failure by counsel to comply with instructions with regards to subpoena served on 28 June 2017. 1. This ground raises much if not all of the same issues referred to in the previous sub-ground (and see submissions at [2264]-[2297]). Complaint is made that the applicant was not informed of what had resulted after the subpoena had been negotiated or what had been produced; that he did not consent to such adverse negotiations; that he was denied access to his computer data because defence counsel and his then solicitors failed to execute due diligence; and that the NSW Police provided a misleading response that the applicant's data had been produced at Burwood Local Court. 2. Again, it is said that Mr Todd was made well aware of a number of improprieties committed by detectives during the execution of CSW 278, as a result of items 1, 10, 13, and 24, but made no further enquiries as to a further six crime scene warrants that were conducted with the same wilful neglect of duty. 3. The applicant accuses defence counsel of appalling conduct in excluding the documents sought in relation to Mr George Kamas (see at [2287]) which he considered relevant as going to an alternate hypothesis for the events on 11 August 2011; and says that the negotiations and narrowing of the subpoena was a serious breach of professional duty by counsel that compromised his defence; and says that this is unethical misconduct without explanation or justification (and that it goes a long way to explaining why the pattern of grave and calculated improprieties by senior detectives was not elicited in cross-examination). 4. In reply submissions, the applicant reiterates that: he did not agree to withdraw item 4, seeking production of documents utilised by Detective Senior Constable Scipione to obtain the initial urgency warrants that had been executed on the applicants home, SW554/11 and SW555/11; Mr Todd has failed to explain why he did not press the production of the applicant's odometer reading, item 6, or organise access to the applicant's vehicle; Mr Todd has failed to address why he did not press the production of the Bass Hill holding yard records, item 18, after he was instructed that no such records are included in the prosecution brief, as asserted by NSW Police. As to this last matter, the applicant says that his written instructions clearly identify that no documents held by Bass Hill holding yard, item 18, had been included in the prosecution brief and that Zahr Partners and Mr Todd would have realised this if they had examined the prosecution brief. It is said that the trial transcript confirms that no such document had been utilised by Mr Todd during the examination of any detective (in particular, the four detectives who had searched the applicant's vehicle on 14 August 2011 and seized the applicant's diary that was said to contain the Georges River Note) and that this allows for the inference that no original document from Bass Hill holding yard was included in the prosecution brief and that this should have been pressed had the matter argued before her Honour. 5. The applicant complains that he was never provided a copy of the video produced by NSW Police in relation to item 24; a video that was made in the drug matter of Mr Woods, identifying drugs seized from the applicant's home during the execution of CSW 278/11; and that no explanation has been provided by Zahr Partners or Mr Todd in relation to the production of computer data that had been seized from the applicant's home, item 28. 6. Further, the applicant says that he never agreed to withdraw item 33, seeking production of a detailed index of all material held in the police repository in aid of identifying with precision what documents are in existence (referring to a similar direction ordered by Sidis DCJ in NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [40] per Brownie AJA). The applicant says that the production of such a list would have permitted the accused to precisely identify documents sought for production. Ground 18C (1): Counsel failed to follow written instructions and seek that her Honour directs the jury on the conflict in evidence between the two case theories as they are not alternate case theories. 1. The applicant's complaint here is that before Mr Todd had concluded his closing address the applicant provided written instructions by letter dated 9 May 2018 to the applicant's then solicitors (see Annexure 17 to the applicant's 11 February 2022 affidavit). The applicant says that the letter sought that Mr Todd join in an application (by Mr Hughes, counsel for the co-accused Mr Woods) to have the 5 o'clock proposition removed from the jury's consideration (see T 2697.24-26), taking into account the matters set out in his submissions at [2299] (see also the applicant's submissions at [2300]-[2314]). 2. The applicant points to the following in the note which was handed to counsel during the trial: Secondly, if her Honour gives oxygen to the second theory, ie that after 5pm Sam Karmas returned; then Sam Karmas was the author of the messages starting at 3:57pm. She can't accept the second theory without accepting that Sam Karmas sent the messages to Maria Angeles starting at 3:57pm on the 11/8/11. To accept the writings is to accept that Sam Karmas did send the sms's to Maria Angeles, as the writings give a time after 5:00pm. To do otherwise is to simply "Cherry Pick" by the Crown and Her Honour. This needs to be pointed out to her Honour if pressing the second theory. 1. The applicant says that this request was made on two further occasions, with notes passed to the solicitor (Ms Sahar Orya). 2. The applicant says that an inspection of the notes clearly indicates Mr Todd's responses (asserting that he made that point in his summing up and it was not required in the summing up). The complaint here made is that Mr Todd failed to follow instructions "permitting her Honour to mislead the jury that both conflicting theories could be assessed with the same evidence". 3. Reference is made to the responsibility of counsel to assist the trial judge in this regard (citing R v Roberts (2001) 53 NSWLR 138; [2001] NSWCCA 163 at [57] per Howie J, R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 at [54]-[56] per McColl JA and R v Gulliford (2004) 148 A Crim R 558; [2004] NSWCCA 338 at [182]-[184] per Wood CJ at CL). Reference is also made to what was said in R v Micalizzi [2004] NSWCCA 406 at [60] per Howie J. 4. The applicant contends that Counsel was made aware of the distinction between these two conflicting theories but failed to assist her Honour to ensure a fair trial for the accused. It is submitted that a substantial miscarriage must have been occasioned as the jury was permitted to assess both theories using the same evidence, as alternate case theories; explaining why a general verdict was delivered against the applicant instead of two separate verdicts; and it is said that this has left this Court here to speculate. Ground 18C(2): Counsel failed to tender the statement made by Antonia Fantakis during the argument to exclude the 5 o'clock theory from the jury's consideration. 1. This complaint stems from the failure of counsel to tender the statement of Antonia Fantakis (Annexure P to the affidavit of the applicant sworn 1 September 2021) during the argument to prevent the 5 o'clock theory being left for the jury's consideration. The applicant notes that the statement was provided to police on 8 September 2011, asserting that Antonia Fantakis was present at the Wilga Street Property up until 5.30pm. It is said that the statement corroborated material issues raised in the applicant's ERISP and the evidence at trial and that it was critical as Antonia Fantakis was present within the time that Mr Karmas was said to have returned according to the writings admitted into evidence. 2. The applicant contends that this statement should have been tendered by Counsel during oral argument as to whether the 5 o'clock proposition should be excluded from the jury. Reference is made to the submissions made by Mr Hughes on that occasion (see T 2695.34-49). The applicant says that in response to her Honour's observation at T 2696.1-5, the statement should have been tendered or her Honour should have been informed that Antonia Fantakis asserted in her statement that she was present up until 5.30pm (to prevent her Honour from being mistaken in her judgment). 3. It is noted that the transcript records Mr Hughes seeking to have the statement tendered and the Crown objecting thereto (T 2698) but the applicant says that this transcript is not correct (and the applicant has made numerous requests to obtain the audio recording between 9 and 11 May 2018 to establish this). 4. The applicant says that Mr Todd was well aware what was contained in Antonia Fantakis' statement and that her Honour was wrong to assert that Antonia Fantakis' evidence was immaterial. 5. While it is acknowledged that Antonia Fantakis was not going to be called by the defence, the applicant says that this was only on the basis that the Crown was only running the first case theory. It is said that if the Crown or any party sought to rely on the 5 o'clock proposition, Antonia Fantakis would have been called by the defence (in the event that the Crown did not call her). 6. The applicant says that Mr Todd is wrong in asserting in [17] of his affidavit that Antonia Fantakis could not give the accused an alibi for the entire period for the afternoon on 11 August 2011, noting that Antonia Fantakis gave a statement that she was present at the Wilga Street Property just before 4pm up until 5.30pm. It is noted that according to the writings (the only evidence in support of the 5 o'clock theory), Mr Karmas is said to return to the Wilga Street Property at or soon after 5pm. The applicant says that this was clearly a time that he was present. 7. The applicant says that Antonia Fantakis was a crucial witness if the 5 o'clock proposition was to be argued by any party to the proceedings. It is said that she had relevant evidence and should have been called by the Crown if it sought to rely on the alternate case theory; and that the applicant was deprived of his right to a fair trial as the Crown failed to call Antonia Fantakis while seeking that the jury take into consideration the 5 o'clock theory. 8. The applicant points out that her Honour refused to accept the tender of Antonia Fantakis' statement on two separate occasions sought by Mr Hughes and says that this resulted in a wrong finding that deprived the defence of a valid basis during the application to exclude the 5 o'clock proposition from the jury's consideration. 9. The applicant submits that Counsel ineptly denied him of a chance of an acquittal as the jury were mistaken or misled in the assessment of the 5 o'clock theory by failing to tender the statement or at the very least inform her Honour of it and by failing to make an application to re-open the defence case and call Detective Sergeant McGee, Antonia Fantakis and the applicant to provide further evidence and to demonstrate the implausibility and practical impossibility of this conflicting theory. Ground 18C (3): Counsel failed to follow written instruction in relation to the jury ballot argument. 1. This sub-ground relates to the jury ballot argument (see ground 10 above). 2. The complaint here made is that Counsel did not follow the applicant's instructions and failed to make an application to have the foreperson excluded from the ballot pursuant to s 55G(2)(a) of the Jury Act. It was the applicant's instructions that the foreperson be excluded from the jury ballot pursuant to the legislation. 3. The applicant refers to the debate that occurred in relation to this issue (see her Honour's summing up at SU 166-167) and says that it is plain that her Honour was made aware of the correct procedure by the Crown and was taken to a relevant Law Report by Mr Todd in support of the legislation but that her Honour chose to ignore the relevant provision and decided to include the foreperson in the ballot. 4. The applicant says that, just prior to the initial argument with regard to the jury ballot, he provided a note to Counsel on this issue and that Counsel appeared to agree with him on the note but appeared to be reluctant in wanting to follow legislation and "sided" with her Honour's view that the legislation was wrongly drafted. Complaint is made that Counsel refused to follow the applicant's instructions. 5. Insofar as Mr Todd asserts in his affidavit (at [18]) that his submissions were on the basis of what he considered the proper construction of the relevant Act, the applicant submits that the legislation is quite clear that the foreperson in the present case was to be excluded from the ballot. It is submitted that Mr Todd had no valid reason to go against his client's instructions when they were in alignment with legislation; and that there was no rational explanation why counsel refused to follow his client's instructions. Ground 18 D: Failure by legal representatives to research information with regards to the Georges River Note. 1. Finally, as to this ground, the complaint is that, during the trial the applicant instructed counsel and his former solicitors to research the defence that the single page (Georges River Note) was part of the instructions from a spiritual healer. The applicant says that he provided a single page of notes to his then solicitors describing the circumstances surrounding the note (at p 13 of Annexure 17 of the applicant's affidavit sworn 11 February 2022) and that it had originally been located at the Wilga Street Property before the execution of the CSW 278/11. 2. The applicant says that a basic internet search would have yielded copious literature on the subject that could have been introduced by some expert in this field to provide some nexus to the applicant's defence. Indeed, the applicant says that he has recently been provided with documents from his present solicitors (Andrews Solicitors) (presumably before he again became self represented) from what are described as basic internet searches that it is said demonstrate distinctly similar instructions with the use of candles and throwing wrapped packages into flowing water to cleanse (see Annexure 18 to his affidavit sworn 11 February 2022). 3. It is submitted that the applicant's legal representatives have failed to exercise due diligence to discover evidence. 4. Complaint is made in reply submissions that Mr Todd has not explained why the applicant was not asked in chief to give his account of the provenance of the "note". It is noted that, according to the Crown (at [50]) it is unclear how such research would have assisted the applicant. 5. The applicant points to Mr Todd's affidavit at [19]: The last Ground "D" regards the lack of research about "spiritual healing incantation(s)". I accept I did not conduct that search. It was not a central aspect in the trial, in my opinion. 1. As to this, the applicant says that the Georges River Note was a central aspect of the trial, as it gave life to the inference that Mr Karmas' body had been disposed of in the Georges River; and that this was a plank in the prosecution case. It is submitted that this gave life to the substantial evidence received by the Court, including from: Professor Fitzpatrick, the soil expert; the police divers that gave evidence with regards to searching the Georges River; and the extensive ground examinations by police surrounding the Georges River. 2. The applicant complains that both the applicant's solicitors and Counsel were instructed to research the issue and find some expert that could evidence on this issue and that those instructions were ignored. 3. The applicant says that the end result was that the applicant was left to deal with this issue during cross-examination by the Crown as Mr Todd failed to raise this issue in chief. It is said that this had a serious impact on the applicant's credibility as a witness, as his explanation appeared to be a recent invention during his cross-examination. 4. Referring to her Honour's sentencing judgement at [34], it is noted that the trial judge was satisfied to the requisite standard that the "note" Ex AG was found in the blue van owned by Mr Fantakis and was undoubtedly written by him, and is a reference to the concealment of Mr Karmas' body. Thus, the applicant says that the note was obviously of fundamental importance to the Crown's case against the applicant. Reference is also made to [35] (extracted earlier) in this context. 5. The applicant says that the failure by counsel to address this issue, as he requested, clearly had a serious impact on his credibility (again referring to her Honour's view of his evidence as set out in the sentencing judgment). Thus, the applicant submits that the response provided by Mr Todd and the Crown on this ground cannot be accepted. Crown's submissions 1. The Crown filed affidavits from each of Mr Todd (defence counsel appearing for the applicant at trial) and his instructing solicitor (Mr Wasim Jabakhangi), noting that as a matter of fairness the allegations of impropriety made against them should not be left uncontradicted. 2. As to the particular grounds, the Crown says the following. Ground 18A 1. As to the complaint that trial counsel failed to follow instructions the applicant had given to cross-examine "central witnesses" on specified documents for the purpose of eliciting the calculated pattern of serious improprieties and conduct in contravention of Australian law, committed by detectives to enliven the discretion to exclude a number of key exhibits on a public policy basis under s 138" (referring to applicant's submissions at [1829]), the Crown notes that the applicant suggests that he instructed defence Counsel to seek the exclusion of the Georges River Note, evidence of Mr Karmas' DNA in the applicant's blue Transit van and the evidence of the soil expert, Professor Fitzpatrick (see applicant's submissions at [1830], [1903], [1906], [1983]. [1976] and [1980]). 2. The Crown notes that the reference to a "pattern of serious improprieties" is a reference to the following allegations: that four officers generated false and misleading statements with intent to pervert the course of justice ([1828]) and that the Georges River Note was "planted" in the diary recovered from the applicant's van ([1851]); that there was wilful neglect of duty and non-compliance with legislative requirements and standard operating procedures during the execution of the seven crime scene warrants ([1821]); that there was wilful neglect of duty by senior officers during a series of examinations, searches and seizures on the applicant's vehicles ([1832]); that a drug exhibit which was seized from the Wilga Street Property was planted in connection with drug charges laid against Mr Woods ([1832]); that three ancillary charges were generated for an improper purpose ([1832]) (i.e., that the applicant was charged in relation to the intimidation of the officer in charge on 7 June 2013 so that police could obtain a warrant for the seizure of his computer and legal documents – and see similar allegation in relation to drug offences with which he was charged in late 2012 – [2164], [2221]); and the "non-contemporaneous" nature of the prosecution brief, the result of the said improprieties ([1832]). 3. The Crown points to the wide discretion of counsel as to the conduct of proceedings, including what witnesses to call and the manner and content of questioning; noting in this regard that counsel is obliged to do so in conformity with the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers Rules). Reference is made to r 65 in that regard, which provides that a barrister must not allege any matter of fact amounting to criminality, fraud or other misconduct against any person unless the barrister believes on reasonable grounds that there is a proper basis for it. The Crown says that the allegations of serious misconduct (and criminality) against various prosecution witnesses were unsupported by the material on which they are said to be based. 4. As to the complaint in relation to failure to cross-examine as to whether standard operating features were followed during execution of the seven crime scene warrants, the Crown points to the cross-examination of police officers as to the procedures that were adopted in the searches at T 1500.47-1501.15 and T 1796.12-24; T 1798.11-24; and says that further cross-examination would have been inutile in circumstances where it was not established that, at the time of the investigation, the standard operating procedures that applied in respect to search warrants also applied to crime scene warrants. 5. As to the DNA evidence, it is noted that DNA with the same profile as that of Mr Karmas was located on the inner door trim of the driver's door of the applicant's blue Transit van following an examination conducted on 9 September 2011. The Crown says that the applicant's complaint is limited to a complaint that counsel failed to seek to have the DNA evidence excluded because of what are alleged to have been unauthorised searches on 15 and 16 August 2011 and 25 August 2011 (because of failure to follow standard operating procedures). The Crown does not accept that those searches were unauthorised or that the standard operating procedures applied to them but says that, in any event, there is no basis for the suggestion that the integrity of the lawful examination conducted on 9 September 2011 (which it is said relevantly concerned a remote part of the vehicle) was in any way affected by those searches. The Crown refers to Hunt CJ's observation in Ignjatic v R (1993) 68 A Crim R 333 at 338 to the effect that loss of a chance to raise an issue is not sufficient, what must be established is that there has been a miscarriage of justice. The Crown says that the applicant must show that there was at least a substantial chance that he would have succeeded on the application to exclude the evidence and that he lost a chance of acquittal that was fairly open (and that he has not discharged that onus). 6. As to the complaint about the soil evidence, the Crown points out that the soil was recovered during a lawful examination conducted on 12 June 2012 and documented (Ex AW pp 19-32) and that the applicant has not discharged the onus of demonstrating that there is a substantial chance that that evidence would have been excluded. 7. As to the listening device recordings (Exs CS and CX), the Crown says that there was no proper basis on which trial counsel could have sought the exclusion of those recordings. It is noted that the applicant did not suggest at the time (and does not now suggest) that the recordings did not accurately reflect the conversation (whether or not the recordings were enhanced using the original single disc master copy). The Crown refers to the observation by Garling J in this respect in A1 v R; A2 v R [2016] NSWSC 1288 at [96] (in his Honour's judgment on the bail application). 8. As to the allegation that NSW Police improperly charged the applicant with offences relating to the intimidation of the officer in charge on 7 June 2013 for an ulterior purpose, the Crown says that there is no evidentiary foundation for this; and it is said that the applicant has failed to demonstrate that any useful purpose would have been served by the cross-examination of any officer as to the asserted failure of the NSW Police to provide him with a copy of that data. 9. As to the complaint about failure to cross-examine the officer in charge about the non-contemporaneous nature of the prosecution brief, the Crown says that it is not unusual for witness statements to be prepared some time after the relevant event, particularly in the context of a lengthy and complex investigation (noting that in the present case the applicant was charged with the murder of Mr Karmas on 3 October 2013, some 16 months after the event). 10. As to the issue of the receipts in respect of items seized from the applicant's premises and vehicles during the course of the crime scene warrants, the Crown says that no useful purpose would have been served by further cross-examination of Detective Sergeant McGee, noting that she agreed in cross-examination that she had received correspondence from the applicant requesting exhibit and seizure lists and that she said she had provided them to him. It is noted that the applicant in his submissions at [2044] accepts that he was provided with EFIMS exhibit lists but his complaint is that he was not given "a contemporaneous account of exhibits found in situ and removed from a premise". The Crown points out that Detective Senior Constable Scipione gave evidence and was cross-examined about correspondence in 2012 in relation to the requests for copies of search warrants and property seizure forms (the Crown referring to T 1716.14-26; T 1750.31-1753.39; and to Ex 16F). 11. As to the complaint (see applicant's submissions at [1890]-[1941]) concerning the alleged failure of counsel to use emails produced under subpoena to cross-examine the four police officers as to the circumstances in which various police statements were made in relation to the seizure and search of the applicant's blue Transit van on 13 August 2011, the Crown emphasises that the applicant did not dispute that he was the author of the Georges River Note; and did not give a direct response when asked if he was suggesting that the Georges River Note was planted (see T 2337.39-2339.26). 12. The Crown says that at the trial, defence counsel for the applicant did cross-examine the four officers in question as to the circumstances in which they made their police statements (including with respect to the emails exchanged with Detective Sergeant McGee (referring to T 22.35 (on the voir dire) and before the jury at T 1006-1022; T 929-944; T 977-997 and T 949-967). The Crown says that the applicant's real complaint is that counsel only referred to two of the emails exchanged between the officers and did not refer to the email sent by Detective Sergeant McGee on 17 May 2013; that trial counsel did not tender the emails (they being marked for identification) and did not cross-examine the officers on paragraphs 3-5 of the 7 May 2013 email of Detective Sergeant McGee (see applicant's submissions at [1920]-[1932]). 13. The Crown says that the differences in the accounts given by the officers in their statements and at trial indicates that the statements were not the product of collusion; and it is said that there was no attempt to hide the fact that later statements were made after email communication with the officer in charge. 14. It is noted that the officers accepted in cross-examination that some of their statements were incomplete and contained errors (the Crown referring to T 940.34-44; T 959.44-960.2; T 963.18-24; T 964.12-23; T 984.25-34; T 987.7-18; T 1016.26-35; T 1017.26-28; T 1020.4-41). The Crown points out that this cross-examination together with that of Detective Senior Constable Lye, and evidence given by the applicant formed the basis of submissions made by trial counsel in relation to the Georges River Note in closing address (T 2647.31-2648.41) in which the jury was urged to accept the applicant's evidence. The Crown submits that it was well open to trial counsel to pursue a forensic approach that sought to draw out the inconsistencies given by these officers rather than alleging deliberate collusion with the intention of perverting the course of justice. It is submitted that the evidence relied upon by the applicant does not give rise to a proper basis for putting such an allegation of serious (or criminal) misconduct. 15. The Crown says that the real issue in relation to the Georges River Note was whether it set out what the applicant planned to do to Mr Karmas (as the Crown alleged) or whether (as the applicant contended) it was a part of three pages of notes prepared after consulting a spiritual healer. 16. The Crown says that the further complaint by the applicant that trial counsel refused to follow instructions and cross-examine the four police officers on failure to follow standard operating procedures during the search (see the applicant's submissions at [1942]) should not be accepted. The Crown says that the vehicle stop was not a "controlled operation" (cf the applicant's submissions at [1943]). Reference is made to s 36 of LEPRA, which confers power on a police officer to search a vehicle and seize things in certain circumstances without a warrant. The Crown says that it would have been well open to counsel to form the view that the requirements of that section were met, the Crown noting that police were investigating the applicant's involvement in the disappearance of Mr Karmas and that a small black Stanley knife had been found on Mr Cheong (who had been sitting on a small axe on the front passenger seat) and that an extendable baton and large sum of cash were found in the vehicle which smelt strongly of bleach. 17. The Crown says that the material relied upon by the applicant does not provide a proper basis on which trial counsel could have put, or even explore, an allegation that Detective Sergeant McGee planted a drug exhibit that was found at the Wilga Street Property (Ex X0000803009) in connection with charges laid against Mr Woods (nor that she had an exhibit officer in her pocket – see applicant's submissions at [2076]). Moreover, the Crown says that this ignores the deliberate forensic approach adopted by his counsel and counsel for Mr Woods that sought to take advantage of Mr Woods' involvement in the possession and supply of cannabis in support of the suggestion that their actions on the evening of 11 August 2011 and following morning involved the disposal of cannabis related items and not Mr Karmas' body. It is noted that the applicant gave evidence that he knew Mr Woods was involved in the supply and cultivation of cannabis and that the applicant did not (though questioned about the listening device conversations) suggest that Mr Woods' animus towards the officer in charge was motivated by a belief that the officer had planted drugs on him. 18. The Crown says that the applicant's submissions under this ground contain a lengthy complaint as to alleged failure to follow instructions in relation to contested paragraphs of the June 2017 subpoena issued to the Commissioner of Police (dealt with in the context of ground 18B). 19. As to ground 18A, the Crown says that the approach taken by trial counsel in respect of the matters complained of was well within the wide discretion reposed in him as to the manner in which to conduct the proceedings and involved due recognition of his obligations as to the conduct of the trial in conformity with the Barristers Rules. In his affidavit, Mr Todd has deposed that the applicant made no complaint about his approach either during the trial or after it had concluded. The Crown says that the applicant has not established that the conduct of trial counsel resulted in a miscarriage of justice. Ground 18B 1. As to this ground, the Crown says that the gravamen of the complaint is that trial counsel engaged in negotiations with the Crown Solicitor's Office in respect of the subpoena without his knowledge and consent. The Crown points out that Mr Todd's position as the applicant's counsel conferred on him authority to engage in those negotiations. The Crown says that the complaint that the applicant was unaware of the negotiations should not be accepted (pointing to Annexure B to Mr Todd's affidavit which relates to the discussion with the applicant in a conference on 12 December 2017 as to the topic of narrowing aspects of the subpoena). Reference is also made to a discussion in the applicant's presence as to a further subpoena issued on 15 January 2018. The Crown says that the fact that various items were not included on that subpoena (the Bass Hill Police holding yard documents – 18(i); material relating to Mr George Karmas – 17(v); and applicant's computer data – item 28) suggests that those items were no longer being pursued. 2. In any event, the Crown says that the applicant has not established that a miscarriage of justice was occasioned as a result of trial counsel's failure to press for production of those documents. It is said that two further subpoenas in respect of the material relating to Mr George Karmas were issued during the trial and material was produced (see the Crown's submissions as to ground 8 at [244]-[251]). 3. As to the complaint that documents concerning the police investigation into Mr George Karmas were not tendered (see applicant's submissions at [2283]-[2284]) the Crown says that this is without foundation (noting that the documents were MFI 193 and 194; voir dire Ex U). The Crown says that the content of those documents was hearsay and prima facie inadmissible. 4. As to the decision not to call Mr Lafiatis to give evidence, the Crown says that this was well within trial counsel's discretion; that the issue whether Mr George Karmas had been involved in an unrelated fraud was collateral to the murder trial and that it is unclear that either of the two Lafiatis potential witnesses was in a position to give evidence as to the allegation (Mr Lafiatis Snr being described in a July 2011 COPS report as an elderly male with health issues and signs of dementia; and his son having had limited contact with his father and no personal knowledge of the alleged fraud (see the Crown's submissions at fn 15). 5. As to the complaint about the Bass Hill Police holding yard documents, the Crown says that the relevant documentary evidence was served on the applicant in the police brief (referring to Detective Sergeant McGee's affidavit of 13 October 2021) and that the applicant's complaint rests on his belief as to what documents would have established had they been produced. 6. As to the failure of the NSW Police to produce a copy of the applicant's computer data prior to trial, the Crown relies on its submissions at [340]-343] in relation to ground 15. The Crown says that the applicant does not explain why the absence of "legal documents and legal literature" occasioned a miscarriage of justice but in any event a large volume of documents meeting that description was served in the police brief of evidence (referring to Annexure A to Detective Sergeant McGee's 13 October 2021 affidavit). Ground 18C 1. As to the complaint that trial counsel failed to follow written instructions to seek a direction by the trial judge to the jury on the conflict in evidence between the two case theories, the Crown notes that the applicant's trial counsel joined in an application made on behalf of Mr Woods (by Mr Hughes) that their consideration of whether Mr Karmas was murdered at the Wilga Street Property should be confined to a 67 minute window between the three men arriving and the applicant driving Mr Cheong home (see T 2693.26-29) (as acknowledged by the applicant) and that the complaint of the applicant is that his trial counsel failed "to elicit the conflict of the two theories" (see applicant's submissions at [2305]). The Crown says that the relevance of that asserted failure is unclear and that the real issue is that raised by grounds 4 and 5 as to the change in the Crown case (and noting that the related complaint as to failure to seek a direction is dealt with in ground 12). 2. As to the complaint that trial counsel failed to tender a statement made by the applicant's mother during the argument to exclude the 5 o'clock theory from the jury's consideration, the Crown says that this rests on an assertion that a portion of the transcript at T 2698 incorrectly records that the trial judge was provided with a copy of the statement during that legal argument (see applicant's submissions at [2332]). The Crown says that the fact that the document was not marked for identification or as a voir dire exhibit is not determinative of the issue (cf the applicant's submissions at [2333]). The Crown says that, whether or not the statement was provided, it is clear from her Honour's judgment that she properly understood its contents insofar as it was relevant to the application (referring to R v Fantakis, Woods and Cheong [2018] NSWSC 749 at [83]-[86]). In any event, the Crown again argues that the real question is whether there was a miscarriage of justice occasioned by the change in the Crown case. 3. As to the third complaint (that trial counsel failed to follow written instructions in relation to the jury ballot argument), the Crown points to Mr Todd's evidence that the position he took on the issue was based upon his view as to the proper construction of the legislation. The Crown says that in those circumstances trial counsel was not bound by the applicant's instructions on that issue and that (for the reasons given in relation to ground 10 – see Crown's submissions at [274]-[296]), there was no error in the manner in which the jury ballot was conducted and, in any event, no substantial miscarriage of justice. Ground 18D 1. The final sub-ground relates to the complaint that trial counsel failed to research information in relation to spiritual healing and to engage some expert in the field in respect of the applicant's account that the Georges River Note was a document written after consulting a spiritual healer. The Crown says that the material relied on by the applicant in support of this ground (referring to water in the context of spiritual healing) does not establish that the absence of such material occasioned a miscarriage of justice. Determination 1. Where incompetence of trial counsel is alleged, the question is whether what did or did not occur at trial occasioned a miscarriage of justice (Nudd v The Queen (2006) 162 A Crim R 301; [2006] HCA 9 (Nudd v The Queen) at [12] per Gleeson CJ; TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at 149-150 [79] per McHugh J; Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at 665 [18] per Hayne J). In R v Birks (1990) 19 NSWLR 677 (Birks), Gleeson CJ noted (at 683) that, as a general rule, a party is bound by the conduct of his or her counsel and that counsel have a wide discretion as to the manner in which proceedings are conducted but went on to say (at 684) that: It sometimes happens that a person who has been convicted of a crime seeks to have the conviction set aside on the ground that counsel at the trial has acted incompetently, or contrary to instructions. It is well settled that neither of these circumstances will, of itself, attract appellate intervention. At the same time, the courts acknowledge the existence of a power and duty to quash a conviction in some cases. The difficulty is to find, in the authorities, a formula which adequately and accurately defines the class of case in which a Court of Criminal Appeal will intervene. A common them running through the cases, however, is that such intervention is a matter about which the courts are extremely cautious. 1. At p 685, in Birks, his Honour summarised the relevant principles, the third of which was: However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of "flagrant incompetence" of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise, they will attract appellate intervention. 1. In Birks, the two features which his Honour considered took it out of the ordinary run (see at 686) were first, that the matter about which Counsel had virtually failed to cross-examine at all went to the whole issue in relation to a serious charge and second, that there were various ways in which the problem could have been dealt with once the problem had become apparent during the cross-examination of the appellant (relevantly, in that case there was available evidence to support the appellant and to rebut the inference that the jury was invited to draw from counsel's conduct). His Honour said that: The failure to deal with the matter was not the result of a deliberate, even if perhaps unwise, tactical decision to make as little fuss as possible about subjects on which it was thought that the less that was said the better. This was not a matter of taking a calculated risk. The barrister simply did not know what to do, and so, until it was too late, he did nothing. 1. Those principles were applied by Adamson J (with whom Bellew and Cavanagh JJ agreed) in La Rocca v R [2021] NSWCCA 116 (at [136]-[138]). 2. Counsel's conduct is to be examined objectively, from the record of the trial (see Nudd v The Queen per Gleeson CJ (at [9])), and the relevant standard is whether the conduct was "incapable of rational explanation on forensic grounds" (Xie at [415]). 3. As made clear in Birks, it is insufficient for an applicant "simply to point to some failing, even a gross failing, of the legal representative who appeared"; rather, what must be demonstrated is that what did or did not occur affected the outcome of the trial (see Roach v R [2019] NSWCCA 160 at [155] per Bathurst CJ, Bell P, as his Honour then was, and Johnson J; Davis v R [2017] NSWCCA 257 (at [59] per Price J). 4. Having regard to the above principles, it cannot be concluded that any of the matters referred to by the applicant (even if established) amounted to ineptitude or incompetence of the kind that would give rise to a miscarriage of justice and warrant the quashing of the convictions and a retrial. In essence, the complaints under ground 18A go no further than a complaint as to forensic decisions taken by the trial counsel as to cross-examination and the like (and, insofar as the complaint is as to a failure to put to prosecution witnesses serious allegations of misconduct or criminal conduct, there is not established to have been an evidentiary foundation to make such questioning proper in any event). As to the complaints under ground 18B relating to negotiation to narrow the subpoena, this again falls largely within counsel's discretion (and, in the aspects noted by the Crown, without foundation). As to the complaints under ground 18C, the first and third are dealt with in other grounds; and the second (as to Antonia Fantakis' statement) goes nowhere as it is clear that her Honour had that material before her at the time. Finally, as to ground 18D, where the argument in essence is that had there been evidence of a spiritual healer the applicant's credibility would not have been adversely affected by the admission of Ex AA, it is difficult to see how some unidentified spiritual healer would have assisted the applicant (it might have been different had the applicant identified the actual spiritual healer to give evidence as to the content of the advice he says was given). In any event, as explained in relation to ground 3, there was ample evidence even excluding Ex AA to make it reasonably open to the jury to find the applicant guilty of murder and to exclude any rational explanation consistent with the hypothesis of his innocence. 5. Ground 18 is not made good. Complaints as to transcript 1. It is relevant here to note that both before the hearing of the appeal and in the period since judgment was reserved the applicant has been in communication with the Court on a number of occasions, seeking among other things access to audio recordings from the trial, relevantly, the audio recordings for 9, 10 and 11 May 2018 (a three day period that encompassed the summing up, though his request was not confined to the summing up – as per his emails dated 16 March 2022 and 11 August 2022 to the Registrar in the Court of Criminal Appeal and his email dated 25 August 2022 to the associate to Dhanji J). In that correspondence, the applicant noted that his first application to obtain the audio recordings was made in November 2021. The applicant then sent further correspondence identifying problems with the audio recordings (see his handwritten note dated 12 October 2022 attaching correspondence to the Reporting Services Branch). 2. The applicant has identified portions of the transcript for those days that he maintains are in conflict with what was actually said at the time; and attributes the relevance of this issue to grounds 4, 5 and 6(3) of this appeal. The applicant was concerned to draw to this Court's attention that he was disputing portions of the typed transcript attached to the court book (see his email dated 25 August 2022). 3. The amendments that the applicant maintains are required are as follows. 4. First, the applicant complains that the transcript of 9 May 2018 (at T 2698) has been shortened and he says that what the Crown said should be included "word for word". It is clear on the face of that portion of transcript with which the applicant takes issue that the reporting services branch transcriber has not transcribed the whole of the passages there being quoted to her Honour; but has indicated with an ellipsis in the relevant places (i.e., "…") the commencement and end of the quoted passages. That is a not uncommon practice where counsel (in this case the Crown Prosecutor) is reading from a document (be it transcript or text). No possible prejudice can here be said to arise by reference to the fact that the whole of the quote has not been reproduced – it is readily able to be discerned by reference to the passages of transcript there quoted (namely, at T 2431 and T 2459, respectively). 5. As to the submission that reference to the omitted parts of what was quoted from T 2459.34-37, properly assessed, would lead this Court to conclude that the Crown did in fact "shift the case" that it opened and conducted before the close of evidence, that has been addressed in the context of the relevant appeal grounds above. It is not necessary here to repeat that, save to note that it is apparent, read in context, that the trial judge's comment "Yes, so there's no shift" is a statement of her Honour's understanding of the Crown's position as there being stated by the Crown Prosecutor (in the course of submissions made in the absence of the jury as to the tender of the statement of Ms Antonia Fantakis); and (contrary to the applicant's contention in his email of 25 August 2022, footnote 3) this does not support the contention by the applicant of bias. 6. Second, the applicant contends that the transcript of the summing up at SU 26 should be amended on the basis that, in its current form, it appears that the statement "The Crown and I have, at no stage, embraced the submission or the second theory that Mr Karmas left and came back" was part of what was said to the jury (i.e., part of the quote) rather than part of the submissions then being made to the trial judge (in the absence of the jury) as to the summing up. 7. The applicant's contention is well made. The sentence he has identified formed part of the submissions made to her Honour on 9 May 2018, not the closing address to the jury (see T 2459.34-37). It seems likely that this is merely a typographical error on the part of the transcription service. If that be agreed by the Crown then it would surely not be necessary for there to be a formal amendment to the transcript. In any event, it is sufficient to note that this Court will proceed on the basis that the closing address to the jury did not include that sentence. 8. Third, the applicant has requested an amendment to the transcript of the submissions made (in the absence of the jury) on 11 May 2018 (T 164) at the point at which Mr Hughes, Counsel for one of the co-accused (Mr Woods) responded to a question by the trial judge as to whether he was there making a submission as to "the second window for the murder or the disposal of the body". The applicant says that the transcript there fails to record two words (Murder, murder) that he says were said by Mr Hughes at the start of his response to her Honour's question (Mr Hughes there being recorded as saying "[n]o, I'm content with the other direction in relation to the boarded window [sic; perhaps "broadened window"])" but went on to reiterate that his submission to the jury was that if the jury were minded or attracted to the proposition that Mr Karmas left and came back and was murdered in the "second window" then that must be something based only on the writings of Mr Fantakis and not admissible against Mr Woods and that the jury would have to pay close regard to the fact that those writings were not corroborated by any independent evidence that Mr Karmas returned. 9. The applicant fails to indicate the significance he attributes to the omission of those two words and it is not necessary here to make any determination of the accuracy of the recording in those circumstances. 10. Nothing therefore turns on the complaints made by the applicant as to the accuracy of the transcript by reference to the audio recordings from 9-11 May 2018. 11. Most recently, a communication was sent to the associates of the judges who heard this appeal requesting that Mr Fantakis be kept privy to all information the court has received in relation to "this aspect" (what is referred to as "the altered transcripts") "if any news becomes available" and indicating an intention on the part of Mr Fantakis to file a notice of motion seeking orders from the court "to resolve the discrepancy in the written transcript and to order the production of the audio recordings attached to the summing up of the trial". As already noted, nothing here turns on the complaints that Mr Fantakis has agitated as to the transcript. "New developments" 1. In the email sent to the judges' associates on 13 December 2022 on behalf of Mr Fantakis, in which the issue of the accuracy of the transcript was again raised (see above), the Court's attention was drawn to "new developments in regard to many key officers involved in the Fantakis matter" and, in particular to a decision in relation to another matter (Spedding v State of New South Wales [2022] NSWSC 1627 (Spedding)). Mr Fantakis requested that this "new information" be taken into consideration "as the credibility of the officers involved was crucial to his case". The email asserts that what was found in the Spedding decision would affect Grounds 7( Parts 2-4), 9, 14, 15 and 18 (on the basis that those grounds identify police conduct). 2. It is not apparent that the Crown was copied into that communication with the court. Nor is it appropriate for Mr Fantakis, after judgment has been reserved, to continue to make what are in effect submissions as to appeal grounds already the subject of submission at the hearing. The relevance to the present case of police conduct in other cases is by no means apparent and it is not appropriate here to entertain this submission (see Eastman v Director of Public Prosecutions of the Australian Capital Territory (2003) 214 CLR 318 per McHugh J at [27]-[31]; Notaras v Waverley City Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [147]; Nguyen v R [2008] NSWCCA 322 at [27][-[32]. Non-publication order 1. On 24 April 2018, the trial judge made an order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) that any publication or other disclosure of evidence given in these proceedings which touches on the New South Wales Crime Commission, its operation, methodology, role in this matter before the Court, and witnesses examined by it is prohibited beyond that which is necessary for the proper administration of the trial presently before the Court. The Crown submits that it is in the interests of justice that the above order continue. 2. The order that the trial judge made remains in force so it is not necessary to make any further order in that regard. Conclusion 1. Although in my opinion, leave to appeal would not be warranted for many of the grounds in isolation, in the circumstances (and noting the overlapping nature of many of the grounds) to the extent necessary leave should be granted on all grounds. For the above reasons, together with those given by Dhanji J on grounds 4-9 below, the appeal on all grounds should be dismissed. 2. ROTHMAN J: The following reasons relate only to Grounds 1 and 2, upon which I find it necessary to make further comment. As to all the grounds of appeal, I agree with the reasons otherwise expressed and the conclusions in relation thereto. 3. As is clear from the manner in which counsel were only reluctantly permitted to agitate Grounds 1 and 2, by the applicant, on appeal, the failure of counsel at trial to raise the issue of mental illness and/or substantial impairment was not only a forensic decision, but most obviously also the result of instructions from the applicant. As has been already expressed by the presiding judge, whether or not counsel pursues a case based upon mental illness or substantial impairment of the mind, the Court may nevertheless be under a duty to direct the jury in relation to those issues. 4. First, it is necessary to deal with the criminal responsibility of the applicant. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the 2020 Act") provides that a person is not criminally responsible for conduct constituting an offence if, at the time of the conduct, the person had a mental health impairment or a cognitive impairment (or both) which had the effect that the person did not know the nature and quality of the act or did not know that the conduct was wrong. 5. As has been stated, the test under the provisions of s 28 of the 2020 Act has been described, including in the Second Reading Speech, as closely mirroring the M'Naghten test for the common law defence of "insanity". Under this test, a person is presumed sane and, in order to be found not criminally responsible by reason of mental illness, the accused is required to prove that, at the time of the conduct, he or she was labouring under such a defect of reason caused by a disease of the mind as not to know the nature and quality of the act or that it was wrong. [1] A disease of the mind is any disease capable of affecting the mind and includes traumatic injury as well as psychiatric injury. [2] It must be more than transitory. 6. The fact-finder must, thus, be satisfied that the person cannot know the nature and quality of the act or know that the act was wrong. The onus of satisfying that test rests on the accused which, if proved, operates as a "full defence" and a special verdict of act proven but not criminally responsible must ensue. [3] 7. I agree with the analysis earlier provided that there is no evidence, direct or indirect, from which it is possible to conclude — other than by the existence of a theoretical possibility — that the applicant, at the time of the conduct that caused the death of the deceased, did not know the nature and quality of his act, or that what he was doing was wrong. Consequently, I agree that Ground 1 fails. 8. The more difficult issue relates to the defence of substantial impairment of the mind, which gives rise to a partial defence and, in relation to a charge of murder, would, if proved, result in a verdict of manslaughter. [4] Substantial impairment of the mind is a "true defence", in that the accused bears the onus of proof, on the balance of probabilities. [5] In contrast to the complete defence, for substantial impairment to arise, the understanding of events, of right and wrong, or of the ability to control oneself need only be "substantially impaired". 9. By operation of s 23A(1) of the Crimes Act, the jury must be satisfied that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter on the basis that the accused suffered such an impairment and, at the time of the conduct giving rise to alleged criminal responsibility, the accused's capacity to understand events, or to judge whether the conduct was right or wrong, or to control himself or herself, was "substantially impaired" by a mental health impairment, or, irrelevantly for present purposes, a cognitive impairment. 10. In this context the term "substantially" is used to mean more than ephemeral or more than significant. In other words, the impairment must be not insignificant; it must be, at least in part, efficacious or causative. The term "substantially" and/or "substantial" has two quite distinct meanings: "The word 'substantial' is not only susceptible of ambiguity; it is a word calculated to conceal a lack of precision … [I]t can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in the relative sense or can indicate an absolute significance, quantity or size." [6] 1. Otherwise stated, the term substantial or substantially can either qualify the totality of that which is described or qualify its insignificance. In other words, the term can be used to qualify existence at all and is used, in that sense, in contradistinction to the term "nominal" or "ephemeral". [7] 2. The second meaning, which, in the circumstances of this legislation is not the preferred use of the term, is that the word "substantial" or "substantially" means "in substance" and is used to qualify the totality of a class or quantity. In that sense, it is used to mean "essentially" or "essential", for example "substantial compliance" or "substantially all". [8] 3. Given the context of the term "substantial impairment" and/or "substantially impaired", the term is not being used in the sense of meaning essentially totally impaired, otherwise the test would be so similar to the test for insanity that it would have little or no work to do. Thus, the term "substantially impaired" means impaired in a manner which is real and not ephemeral; where the impairment is a cause, or one of the causes, of the state of mind or conduct. 4. However, the fact-finder must also be satisfied that the impairment was "so substantial as to warrant liability" being reduced. In that sense, the term is used to mean "significant" such as to justify an acquittal for murder (that, presumably, would otherwise be proved), and a conviction for manslaughter substituted instead. Of course, manslaughter is still a most serious offence and involves the felonious or unlawful taking of human life. It carries a maximum sentence of 25 years imprisonment. 5. The circumstance that the accused bears the onus of proof, on the balance of probabilities, as to the existence of the substantial impairment and its effect, does not relieve the trial judge of the requirement of directing the jury on the question of substantial impairment when the occasion arises, even though the accused may not have raised the defence nor sought from the trial judge a direction of that kind. The principles which bind a trial judge have already been expressed by Ward ACJ. 6. In terms of the material that was before the Court, for the defence of substantial impairment to arise, it is unnecessary to have expert psychiatric or psychological evidence. Indeed, expert evidence to the effect of the ultimate conclusion, namely that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter, is not admissible in the trial. [9] The fact-finder can be satisfied of the substantial impairment and the requirements of the provision from the conduct of the accused and the surrounding circumstances. Thus, a fact-finder is capable of drawing inferences from all of the evidence otherwise before the Court. 7. The evidence has been summarised accurately and appropriately in these reasons by my learned colleagues, and it is unnecessary to repeat that summary or that evidence. For present purposes it is sufficient to deal with, by way of emphasis, some short aspects of that summary, in the context of the whole of the evidence. 8. First, there is the evidence of Ms P Mantas as to the applicant's conduct and behaviour at the birthday party of Ms A Mantas, her daughter. That birthday party was 7 August 2011, shortly before the date, 11 August 2011, that the Crown was alleging was the date of the murder. Ms P Mantas noticed that the applicant was "down" and depressed, following her observation of a number of times after the death of his brother when the applicant was "quite down". 9. The evidence of Ms A Mantas (then 16 or 17 years of age) is that she did not particularly notice a change in the applicant's mental state towards the end of 2011 and into 2012. 10. Dr Saker first saw the applicant on 4 November 2011, approximately three months after the death of Mr Karmas. His opinion of the mental state and condition of the applicant varied, and he considered the applicant's mental state as becoming more serious over the years. 11. It is fair to say, summarising further the evidence previously outlined, that at least from 4 November 2011, the applicant had a major depressive episode and probably a differential diagnosis of an adjustment disorder with depressed mood. That depression continued throughout. 12. By January 2012, the applicant was described as having "paranoid over-valued ideas about a police conspiracy". While at one stage Dr Saker contemplated that the applicant might be suffering from schizophrenia, on 19 July 2013, he expressed the view that the applicant did not have schizophrenia but has suffered short periods of psychosis when under intense pressure, and short periods of depression, anxiety and despair. 13. The oral evidence of Dr Saker was that the extent to which the applicant was displaying psychosis was transient. Of course, the transient nature of the psychosis does not mean that, at the time of the conduct giving rise to the death of Mr Karmas, the applicant was not suffering some form of psychosis. 14. That which is most disturbing is that the applicant plainly had delusional beliefs, which may have been psychotic. The Crown relied upon the delusional beliefs as motivating the applicant to murder Mr Karmas. 15. Professor Greenberg, who did not examine the applicant, could not diagnose the applicant but said that he most likely met the criteria for having a paranoid delusional disorder, culminating in a psychosis in late 2012 or early 2013. This, of course, was well after the death of Mr Karmas. 16. As earlier stated, the Crown relied upon the delusional beliefs of the applicant as motivating him to kill Mr Karmas. Further, a trial judge is bound, as the extracted principles and citations make clear, to put to a jury, in a criminal trial, every lawfully available defence open to the accused on the evidence. 17. The earlier comments relying upon observations of the Full Court of the Supreme Court of Victoria, in Shields, supra, ought not to be used as elevating the failure, or acquiescence, of counsel for an accused to an independent basis upon which it could be said that the trial judge need not have put the defence of mental impairment or substantial impairment to a jury. Either the evidence that is before a court is sufficient to require the direction to be given — or raises the possibility in a way that it is appropriate, even if not required, that a judge provide direction as to the availability of substantial impairment — or it does not. 18. If it does not — in other words, if there is no evidence upon which mental impairment would arise or no evidence upon which substantial impairment could arise — it is unnecessary and inappropriate for a trial judge to provide directions of that kind. On the other hand, if there is sufficient evidence, such that a jury is capable of drawing the inference, on the balance of probabilities, that the applicant was substantially impaired, a trial judge is required to direct the jury on the availability of substantial impairment and a verdict of manslaughter on that basis. 19. There will be circumstances where the evidence will be such that it is insufficient to "require" a direction on substantial impairment, but may be enough to permit an appropriate direction on substantial impairment, even though the trial judge may take the view that the evidence is insufficient to give rise to the defence. It is then for the jury to draw inferences. In other words, even though the evidence may not amount to sufficient to require a direction, there may be enough evidence to permit an appropriate direction on substantial impairment, as a matter of evaluation by the judge. 20. In her summing up, the trial judge in the applicant's trial referred to the Crown case and the mental state of the applicant as being one that was "out of touch with reality" and that the conduct of the applicant in causing the death of Mr Karmas was "under sway of that delusion". 21. Thus, to summarise the effect of the evidence, there was no direct evidence that, at the time of the applicant's conduct, the applicant was suffering a mental condition or psychosis that substantially impaired his capacity to understand right from wrong; substantially impaired his capacity to control his conduct (which factor does not seem to be directly relevant); nor substantially impaired the applicant's capacity to understand the events. Ordinarily, the circumstance that a person believes (rightly or wrongly) another killed a close relative is not, in the absence of an impairment as to that which is right or wrong, a justification for taking a life. 22. In this case, the conduct and attitude of the applicant was rendered more obvious by the fact that the applicant reported his beliefs to police. In other words, the belief, delusional or otherwise, that a person has killed a close relative or friend is not, without an impairment of that which is right or wrong, such that it would warrant, ordinarily, the reduction of criminality from murder to manslaughter. Nevertheless, where there is a psychosis, or an inference may be drawn that there was a psychosis or a developing psychosis, such a reduction in criminality may be warranted. 23. As has already been explained, in and of itself, a delusional belief is not an impairment of the mind. Many persons have delusional beliefs. Many, for example, suspect and believe, incorrectly, that a partner is or has been unfaithful. Such a delusional belief does not justify a reduction in criminality. 24. However, delusional beliefs range in seriousness from the trivial to the most serious, which, in the latter category, may give rise to a rational view that the delusion is so marked and serious as to evidence, or from which to infer, an impairment of the mind. 25. Because the foregoing refers to inferences that may be drawn by the fact-finder, it is appropriate to expand on how and in what circumstances inferences may be drawn in a criminal trial. The drawing of inferences has been described as "plain commonsense". [10] 26. In Fabre v Arenales, Mahoney JA, (with whom, relevantly, Priestley and Sheller JJA agreed), after citing the judgment of Menzies J in Jones v Dunkel (at 312) and, at length, of Windeyer J in Jones v Dunkel (at 320-321), said, in relation to the drawing of inferences: "There is in this nothing esoteric or peculiar to legal reasoning. It is, as Windeyer J said, 'plain commonsense'. A factual inference (if A, B, C exist, Z exists) is open if, to quote the words of Knox CJ and Dixon J, 'human experience would be contradicted if' Z did not exist: see the cases referred to in Jones v Southerland Shire Council (at 222 et seq). It follows that the inference will or may be drawn if general human experience (plain common sense) will not be contradicted if the inference be drawn." [11] 1. The drawing of inferences in civil and criminal proceedings was explained more fully by Sir Frederick Jordan CJ, in Carr v Baker (1936) SR (NSW) 301, where his Honour said: "In a Court of justice, the question whether a particular fact has been proved must be determined by considering evidence and seeing whether the existence of the fact is probable in the light of that evidence. In a civil matter, it is necessary, in order that a fact may be regarded as established, that the evidence should be such that it is more probable that it exists than that it does not. The position is the same whether the evidence is direct or circumstantial. In a criminal matter, it is necessary, if the fact is to be proved by the prosecution, that the evidence should be such that not only is it more probable than not that the fact exists, but that there is no reasonable probability that it does not: it must be proved that it is so probable that no reasonable doubt exists that it is the fact…. It has been clearly and emphatically laid down … that in no case can a fact be regarded as established unless its existence is at least a reasonable inference from some matter proved in evidence. It is not sufficient that there should be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference and not of conjecture. The existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability – a mere scintilla of probability such as would not warrant a finding in a civil action – to such practical certainty as would justify a conviction in a criminal prosecution.… It is well established that if there is no piece of evidence which, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, it cannot be treated as established. This situation may arise in two different ways. First, there may be no piece of evidence which suggests that the existence of the fact is more than possible. In such a case, since there is nothing to show whether the existence of the fact is probable or not, it is just as likely that it does not exist as that it does. There is no probability either way; and nothing equals nothing. … There may, however, be a case in which the evidence is such that in some aspects it raises a probability that the fact exists, and in other aspects it raises a probability that it does not. If, in such cases, the two countervailing probabilities are in perfect equipoise, the fact cannot be treated as established." [12] (Citations omitted). 1. Drawing an inference is different to conjecturing, even on the balance of probabilities. Inferences must be based upon evidence. [13] Yet the trial judge is required to ensure that the Court directs the jury in a manner that is "astute to secure for the accused a fair trial", by directing on "both … the law and the possible use of the relevant facts upon any matter the jury … could base a verdict in whole or in part". [14] But that direction relates to assistance as to available findings "on the evidence". [15] 2. The material before the Court in this trial includes proved delusional beliefs possessed by the applicant and a later diagnosed psychosis. It would not be irrational to conjecture that the psychosis existed earlier and was causative of the delusions. However, it would also not be irrational to infer, on the material, that the psychosis developed much later, if it did develop, and there was no substantial or causative impairment of the mind affecting the applicant's conduct. 3. To return to the analysis of Jordan CJ, the notion of "equipoised" conclusions is particularly difficult and a fine judgment. It involves a Boolean or binary, mathematical approach to the evaluation of probabilities. From the applicant's perspective, the "inference" of substantial impairment and no substantial impairment would be "equipoised". A better analysis may be to recognise that, since each of the existence and non-existence of a psychosis at the relevant time is available, neither inference can be drawn in a manner that satisfies the applicant's burden of proof at the trial. 4. Ordinarily, that assessment or inference is for the jury to decide; not the trial judge. Where the conflicting inferences are equipoised, no inference can be drawn, and it cannot be said that a trial judge is "required" to give a direction as to the existence of a substantial impairment defence, even if the judge chooses to do so. Where a reasonable possibility exists from which a jury might, in applying its community standards, infer a result that there was substantial impairment of the mind, it would be advisable in most circumstances to direct on the subject matter, including, of course, on the onus of proof and its burdens. 5. It will be a rare circumstance for a judge to determine, as a matter of law, that an inference cannot arise because the competing possible inferences are "equipoised", or that one of them cannot be drawn. This is, in part, because the drawing of the inference is "common sense" and is, in ordinary circumstances a matter that should be left to the jury. This trial is one of those rare instances, assuming the trial judge considered the issue despite the absence of any submission or request, where her Honour was not in error in the result and, as stated, did not deprive the applicant of the possibility of the lesser alternative verdict of manslaughter. 6. Trials for serious criminal offences are generally conducted before a jury because the jury brings its common experience, common sense and sense of justice to the determination of the facts necessary for criminal guilt. A jury is entitled, notwithstanding the law, to bring a sense of communal justice to its fact-finding and the determination of a verdict. 7. To emphasise this point, it may be helpful to consider the following scenario. Even if, on the evidence before the Court of the delusional beliefs of the applicant, there may have been insufficient material to draw an inference that it was more probable than not that the applicant suffered substantial impairment of the mind (as a matter of law), the jury may have formed the view that it was appropriate to return a verdict of the alternative crime of manslaughter — as a matter of mercy, justice, and/or community standards — rather than the more serious crime of murder. In all circumstances that outcome is theoretically possible, rendering it desirable, even though not a requirement, for the judge in a trial such as this to direct the jury on substantial impairment. 8. Frankly, I am somewhat disquieted that, in this case, the direction was not given. Were I to have turned my mind to the issue at a trial, on this evidence, and particularly having regard to what I have said in the paragraph immediately above, I would have directed on the availability of substantial impairment. But on an appeal the test is not what I would have done at trial. Rather, it is whether the trial judge was required to leave the defence. 9. In this case, there was no requirement on the trial judge to direct on the availability of manslaughter by reason of substantial impairment. Given the foregoing conclusions, and the onus on the applicant at trial, it cannot then be said that the trial judge erred in failing to give the direction. The failure did not, on the evidence, deprive the applicant of an opportunity for an acquittal and did not involve a miscarriage of justice. Nevertheless, it may have been desirable and appropriate to provide such a direction. It is not for the Court, on appeal, to insist upon the exercise of a discretion, available to a trial judge, to provide such a direction in circumstances where the law does not require such a direction. 10. As to whether the impairment was "so substantial" to warrant a reduction in the seriousness of the offence — if such an impairment were to have existed and were, in whole or in part, causative — that evaluation is quintessentially for the jury, based upon its understanding of community standards. 11. As a consequence, Ground 2 of the appeal must fail and I agree with the reasons and conclusion of Ward ACJ that Grounds 1 and 2 should be dismissed and otherwise. Since the drafting of these reasons, I have had the opportunity to read the reasons and conclusions of Dhanji J and I agree with them. 12. DHANJI J: Grounds 1 and 2 I have had the considerable advantage of reading the reasons of Ward ACJ and Rothman J in draft. Ward ACJ has comprehensively set out the evidence and submissions relevant to this ground. Having regard to what has been said by both Ward ACJ and Rothman J, my reasons can be brief. 1. The trial proceedings were adversarial. Thus, it was for the parties to decide the evidence to be led, and for the applicant to determine what aspects of the Crown case with which to take issue. There are limits, however to the adversarial quality of a criminal trial. In the present case it was not suggested that the trial judge was obliged to interfere with the general principle of adversarial justice that it is for the parties to determine the evidence to be called: cf Apostolides v The Queen (1984) 154 CLR 563; [1984] HCA 38; R v Damic [1982] 2 NSWLR 750. The adversarial nature of a trial does not generally, and did not here, absolve the trial judge of the responsibility to leave a defence that is, on the evidence, viable, even if contrary to the express position of an accused. 2. The result of the above is that, after a trial at which the applicant denied any responsibility for killing the deceased, and at which the jury found that the applicant was guilty of the murder, he now seeks a new trial on the basis that the trial miscarried because the trial judge failed to leave to the jury the defence of mental illness (ground 1), or the partial defence of substantial impairment (ground 2). Both those defences are predicated on the applicant's responsibility for the killing. In the event that he is successful on either of these grounds the result will be a new trial. Based on his conduct of the trial and this appeal, it is clear that at any new trial he will contest responsibility for the killing. No doubt he will additionally, seek to actively contest evidence supporting the existence of a mental illness or abnormality at the time of the alleged killing on the sound forensic basis that a jury might reason that he was more likely to have killed the deceased if his mental health was impaired at the time. 3. Despite it being unattractive, the prospect of returning a matter for trial on a basis it is anticipated the applicant will then actively contest is not a relevant consideration in determining the appeal. The applicant was entitled to a fair trial. If there was a viable case for a defence of mental illness or substantial impairment, a fair trial required that the jury decide those issues. The principles in this regard have been set out by Ward ACJ and are not in issue. The failure to leave either defence in circumstances where there was evidence capable of supporting it would amount to a miscarriage of justice. 4. The line as to whether a particular defence has been raised on the evidence can be difficult to draw. As a result, at first instance, it is natural for trial judges to err on the side of caution in determining whether a defence should be left: see Masciantonio v The Queen (1994-1995) 183 CLR 58 at 67-68; [1995] HCA 67. On appeal, however it is necessary to determine not whether the defence could have been left but whether it was required to be left. In this regard the appellate court "must apply the test with as much exactitude as the circumstances permit": Lee Chun-Chuen v The Queen [1963] AC 220 at 230, quoted in Masciantonio v The Queen at 68. 5. In the present context it is significant to observe, as Rothman J points out, that the defence of mental illness and the partial defence of substantial impairment are true defences in that, in each case, the onus is on the accused to establish the defence and to do so on the balance of probabilities. Thus, it is not enough that the evidence does not exclude the possibility that the applicant had a defence of mental illness or a defence of substantial impairment available to him. Evidence which leaves open the reasonable possibility of a fact, is very different from evidence from which the positive inference can be drawn as to the existence of a fact. 6. An inference must be logically based, that is, it must bear some logical relationship to the evidence from which it proceeds: see Holloway v McFeeters (1956) 94 CLR 470; [1956] HCA 25; Peacock v The King (1911) 13 CLR 619 at 661; [1911] HCA 66. It must be based on more than mere conjecture: The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47]. In Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317, Bathurst CJ (at [109]-[110]) referred to the "very real" distinction between inference and speculation and said: "109 In Seltsam Pty Ltd v McGuiness; James Hardie & Coy Pty Ltd v McGuiness [2000] NSWCA 29; 49 NSWLR 262, Spigelman CJ considered this very question. He acknowledged that it is often difficult to distinguish between permissible inference and conjecture. Quoting from Jones v Great Western Railway Co (1930) 144 LT 194, his Honour adopted a definition of inference as "a deduction from the evidence" which, if reasonable, may have the validity of legal proof. 110 He referred also to Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, quoting as follows: "Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture." Spigelman CJ stated the test as: "... whether, on the basis of the primary facts, it is reasonable to draw the inference." To similar effect were observations of Gibbs, Stephen and Mason JJ in Barca v The Queen [1975] HCA 42; 133 CLR 82 at 104-105." 1. Returning to the present case, the applicant's approach at trial, in denying all responsibility for the killing, had an obvious impact on the evidence led at trial, and consequently the evidence available to this Court to determine the question of whether there was a basis on which a positive inference could be drawn as to the matters required to establish a defence of mental illness or substantial impairment on the balance of probabilities. 2. The potential defences of mental illness and substantial impairment raise similar issues. With respect to the defence of mental illness, the applicant accepted that, on the (contested) assumption that he killed Mr Karmas, he would likely have known the nature and quality of his act. The issue in relation to mental illness therefore was whether he knew his act was wrong. Knowledge of whether an act was right or wrong is also relevant to the test for substantial impairment. The bar is, however, lower for the applicant with respect to substantial impairment and it is therefore convenient to consider this question first. 3. The defence is provided by s 23A of the Crimes Act 1900 (NSW). Section 23A(1), which has been set out above but reproduced here for convenience, provides: 23A Substantial impairment by abnormality of mind (1) A person who would otherwise be guilty of murder is not to be convicted of murder if: (a) at the time of the acts or omissions causing the death concerned, the person's capacity to understand events, or to judge whether the person's actions were right or wrong, or to control himself or herself, was substantially impaired by an abnormality of mind arising from an underlying condition, and (b) the impairment was so substantial as to warrant liability for murder being reduced to manslaughter. 1. As Rothman J points out, the test in s 23A(1)(b) is "quintessentially a jury question" (an expression discussed by me in Reyne (a pseudonym) v R [2022] NSWCCA 201). In the event that there was evidence to satisfy s 23A(1)(a), it may be that a trial judge will choose to direct a jury as to the defence of substantial impairment. 2. The applicant did not here contend that the evidence was capable of establishing his capacity to understand events was impaired (AWS [28]). Thus, for the purposes of this appeal the question that arises is whether there was evidence capable of satisfying a jury on the balance of probabilities that, as at 11 August 2011, the applicant suffered from an abnormality of mind arising from an underlying condition which substantially impaired his capacity: 1. to judge whether his actions were right or wrong; or 2. to control himself. 1. An "underlying condition" is defined in s 23(8) to mean "a pre-existing mental or physiological condition, other than a condition of a transitory kind". 2. It is clear that sometime after 11 August 2011, the applicant was suffering from a mental illness that would constitute an abnormality of mind as a result of a "pre-existing mental or physiological condition, other than a condition of a transitory kind". There was, however, a question as to when this abnormality of mind first manifested itself, and in particular whether it was present as at 11 August 2011. 3. It is also clear that, while the medical evidence left matters in an uncertain state with respect to the applicant's mental status as at 11 August 2011, the Crown case was that the applicant was suffering a delusional belief at that time. The trial judge put the Crown case to the jury as follows: "the Crown says that Mr Fantakis had, in the period between late May and early August 2011, become convinced that Maria Angeles and Sam Karmas had murdered Nicholas Fantakis, and possibly posed a threat to Mr Fantakis and his mother, and under the sway of that delusion, he threatened to kill Mr Karmas and then did so." 1. And further: "The Crown's case [is] that [the applicant was] in a state of mind which left him out of touch with reality. Mr Fantakis came to hold the belief that Mr Karmas acting in concert with Maria Angeles, had murdered his brother, in May 2011." 1. I accept that the fact that a person has a delusional belief does not mean that they are suffering an abnormality of mind within s 23A of the Crimes Act. Delusional beliefs as to, for example, a person's own abilities, or the prospects of their favoured sporting team are not uncommon. Less prosaic delusions, such as conspiracy theories, inhabit the minds of persons not affected by an abnormality of mind within the provision. However, when I have regard to the particular nature of the delusions in this case, the timing and impact of the deaths of the applicant's father and brother, the evidence of Dr Saker together with the fact that the applicant was, after 11 August 2011, suffering from serious mental illness, in my view it is a rational inference that the delusions he suffered as at 11 August 2011 were the product of, at least, an emerging mental illness. While I accept that this is not the only inference necessarily available, I, like Rothman J am conscious of the role of the jury and, in addition am mindful of the advantage of the jury in not only seeing and hearing witnesses, but seeing and hearing the evidence unfold over the length of the trial: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. 2. The question that then arises is whether there is evidence to sustain an inference that the applicant's capacity to judge whether his actions were right or wrong or to control himself were substantially impaired. 3. I would not regard evidence that the applicant sought to avoid liability as probative of a capacity to understand right or wrong. An awareness that the act will be seen as wrong by others, including those tasked with enforcement of the law, does not answer the question of the applicant's own capacity to judge right from wrong: Stapleton v The Queen (1952) 86 CLR 358 at 368; [1952] HCA 56. But it is also clear that the simple fact of an abnormality of mind cannot satisfy section 23A(1). 4. In the context of mental illness, the concept of knowledge of wrongness requires that the illness "so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act or of comprehending the nature or significance of the act of killing": Stapleton v The Queen at 367. The test is necessarily less stringent in the context of substantial impairment (or the section, or at least this aspect of it, would have no work to do). It remains the case, however, that while an inference of mental abnormity is available, the nature and impact of the illness as at 11 August 2011, apart from the existence of delusional belief, is, as a result of the manner in which the case was run, quite uncertain. Further events, such as the police investigation, and on the basis on which the ground is premised, the applicant having killed Mr Karmas, were additional stressors after 11 August impacting on his mental state. 5. Not only was there no exploration of the impact of any mental abnormality extant as at 11 August 2011 generally, there was no exploration of its impact on the applicant's capacity to understand right or wrong. It does not follow from a delusional belief that Mr Karmas killed the applicant's brother, that the applicant did not understand that it was wrong to kill Mr Karmas or that his understanding of this was impacted by any abnormality of mind. It was not submitted that the fact (or, for the purposes of this ground, assumption) that the applicant killed Mr Karmas was probative of a lack of understanding of right and wrong. It would be an odd result if the fact of killing, in and of itself, could be evidence of a lack of responsibility for killing (or even a lack of responsibility so as to reduce murder to manslaughter). 6. I accept the summing up put the Crown case to the jury on a basis that included a delusion that Mr Karmas posed an ongoing threat. The basis for any belief held by the applicant that Mr Karmas "possibly posed a threat to [him] and his mother" is not altogether clear, at least as to its existence as at 11 August 2011. It does not appear to have been relied on by the Crown in closing. But even if it be the case that the applicant "possibly" perceived a threat, it is still not possible to know the impact that belief may have had. While I accept the imprecision inherent in a test such as "substantial", it requires, at least, the presence of evidence from which the impact of the mental abnormality can be judged. That was absent in this case. 7. The same analysis applies with respect to whether the evidence was capable of sustaining an inference on the balance of probabilities that the applicant's capacity to control himself was substantially impaired. 8. Having regard to what I have said above, I am of the view that the evidence was not such as to oblige the trial judge to leave the partial defence of substantial impairment, or the defence of mental illness, to the jury. It follows there was no miscarriage of justice in her Honour not doing so and grounds 1 and 2 must fail. I would grant leave to rely on these grounds but would dismiss them. 9. Before leaving these grounds, I note that on the analysis above, I accept the possibility remains that the applicant is not criminally responsible for the killing, or potentially, not guilty of murder but guilty of manslaughter. There is necessarily some disquiet that arises as a result. A new trial would not, however, remedy this. As discussed above, it is overwhelmingly likely that at any new trial the issue would remain the applicant's responsibility for the killing and, accordingly, the applicant is likely to eschew any suggestion he was suffering a mental illness or abnormality as at 11 August 2011. It is therefore unlikely that any evidence as to the applicant's mental state at that time will be of any greater assistance with respect to the question of a defence based on the applicant's mental illness or abnormality. If evidence does become available which would allow consideration of the questions posed by a mental illness defence or a defence of diminished responsibility, the applicant has other avenues that remain available to him. Grounds 4 and 5 1. Grounds 4 and 5 of this appeal are as follows: "Ground 4: The Crown did split/shift its case depriving the applicant of a fair trial, causing the trial to miscarry. Ground 5: Miscarriage of justice did occur by her Honour leaving to the jury a possible basis of conviction which had not been relied upon by the Crown and Mr Price." 1. The applicant contends pursuant to ground 4 that he was deprived of a fair trial as a result of the prosecutor advancing "a conceptually different case theory for the first time in its closing submission". He submits that the case until that point had been run on the basis that the applicant murdered Mr Karmas between 1:50pm and 3:07pm while in the presence of Mr Cheong. He complains that the prosecutor in closing advanced, in the alternative, the proposition that Mr Karmas left the Wilga Street Property earlier in the afternoon and returned around 5pm and was then killed by the applicant. This proposition was referred to as "the 5 o'clock theory". Ground 5 relates to the same issue but is directed to the trial judge leaving the 5 o'clock theory to the jury as a possible basis for conviction, or at least, not directing the jury that the Crown must prove that Mr Karmas was killed between 1:50pm and 3:07pm. Given the close relationship between these grounds it is convenient to deal with them together. 2. To understand the applicant's complaint, it is necessary to set out the manner in which the Crown case was formulated. The indictment was in the following terms: "On 26 February 2018, the Director of Public Prosecutions on behalf of Her Majesty charges that Elefterios FANTAKIS 1. On 11 August 2011 at Punchbowl in the State of New South Wales did murder Elisha KARMAS." 1. While the indictment did not particularise the Crown case beyond the date and the suburb, it does not follow that the case, at least by the time it reached the jury, was so unconfined. To determine the question of miscarriage, it is necessary to understand something more as to the case the applicant understood he was required to meet. The Crown case statement, served on the applicant and filed with the Court stated as follows: "The Crown case is that [the applicant] murdered Sam Karmas at [the Wilga Street Property], on 11 August 2011, sometime between 1:50pm and 3:45pm." 1. On the Crown case, Mr Cheong was present at that time. Mr Cheong's presence and consequent (inferred) knowledge of the murder, coupled with actions allegedly taken by him to assist the applicant with respect to removing the body and eliminating evidence, were the foundation for the Crown case against Mr Cheong as an accessory after the fact to the murder by the applicant. 2. The Crown's opening to the jury was consistent with the Crown Case Statement, and made it clear that it was the Crown case that, after Mr Karmas arrived at the Wilga Street Property on 11 August (for the first and only time) "Mr Karmas never left the property alive" (T123.7-20). 3. Ultimately, by the close of the Crown case, the period during which it was alleged Mr Karmas was killed had been refined to 67 minutes. This was based on images captured by a security camera showing the applicant's blue van entering and leaving Wilga Street (on the Crown case, entering with the applicant, Mr Cheong and Mr Karmas, and leaving with the applicant, Mr Cheong and possibly, Mr Karmas' body). 4. The applicant's understanding of the case by the time he came to give evidence (and that of his counsel) was plain. When his counsel asked him, referring to the 67 minute window, "You understand that the Crown case is that the murder happens in this period of time …", the applicant acknowledged this to be the case (T 2311.28-30). 5. In the course of the trial, the Crown tendered various documents (written and audio recordings) which contained admissions made by the applicant. In some of those documents the applicant, while admitting to doing violence to Mr Karmas, said that Mr Karmas had left the Wilga Street Property that afternoon, prior to returning around 5pm, which was inconsistent with the case that Mr Karmas was killed in the period during which Mr Cheong was at the premises. There was evidence Mr Karmas had made arrangements to meet his brother Mr George Karmas between 2pm and 4pm. Mr George Karmas gave evidence of the arrangement but said he did not keep the appointment or notify his brother. There was also evidence he had arranged to meet his friend, Khaled Charawani, for a walk, although the time of that arrangement was less clear. It is possible that Mr Karmas left the Wilga Street Property to meet his brother and returned after his brother failed to turn up. However, the absence of any evidence from Mr George Karmas that his brother called him to enquire of his whereabouts might be thought to cast doubt on this possibility. 6. The Crown, in closing said (T 2430.45-2431.24): "Ladies and gentlemen can I take you to the next topic which is Mr Fantakis' admissions? Can I refer you to exhibit CF, which is the document entitled, "On this particular day," para Z, "Sam's message told me that he was watching the house." Now this, and I won't read what comes before then but in this particular document on this particular day Mr Fantakis has said that Sam Karmas has left. Now you'll recall his evidence and also what he told the police, and also Mr Cheong told the police also that when the three of them arrived at Wilga Street for the purposes of unloading the blue van of those two items of furniture, they get inside the house or at the front door or whichever version you accept and then Sam says, "Look I've forgotten something, I've got to go, I'll see you later." In this particular document which is headed, "On this particular day," exhibit CF, Mr Fantakis says that after Sam leaves, and it'd be my submission to you that Sam Karmas never left [the Wilga Street Property] after they arrived there, that is after he, Mr Cheong and Mr Fantakis arrived Mr Sam Karmas never left there, never walked away from there, however Mr Fantakis says in these writings, para Z, "Sam was coming. Down the side to gain entry via the back door as the front was closed. I left the back door open and he had no choice but to enter. I observed he was holding something in his hand. As he passed me I kicked him off his feet. II punched him in the throat to prevent him from breathing & screaming. And then grabbed a tazer that he was carrying. I used his own weapon to incapacitate him and had him strapped. Sam Karmas confessed a number of things including the fact that he had killed my brother, his involvement with high ranking police, insurance fraud & Maria's involvement. I had torchered him until he spilled his guts on all that are involved in this machine of killing[s]." Ladies and gentlemen I'll come to Mr Fantakis' evidence later and the evidence of the psychiatrist. My submission to you is well you might say well did Sam Karmas confess to Mr Fantakis or is that just a product of his delusion? Did Mr Sam Karmas leave as Mr Fantakis has said in these writings or is that what really happened? Ladies and gentlemen, my submission to you about that is that Mr Fantakis has told this version, that is the version that Sam left and had to leave on a number of occasions, and my submission to you is that that was a lie, that didn't happen. In these writings that he told you in evidence were for therapy, I'd suggest to you that you can accept some of what he said there is what happened and some of what he said there is a product of his delusion, and you might think well Mr Crown, you can't have it both ways." 1. The address continued (at T 2458.30-45): "… When you take into account the time that the blue van enters Wilga Street and then leaves Wilga Street. The blue van was at Wilga Street for 67 minutes. Exhibit CO, the JUS Tiles stills. Mr Cheong told the police that the van - they turn up to Wilga Street, Mr Karmas or Sam says that he'd forgotten something or that he had to leave and that Mr Cheong left with Mr Fantakis, you might think five to ten minutes later. Ladies and gentlemen, that couldn't be right. Five to ten minutes later, even if they were there for ten minutes, you might think that's about 20 minutes. That blue van was in Wilga Street for 67 minutes and you might think during that period of time ladies and gentlemen was when Mr Sam Karmas was killed and it's the Crown case that the driveway was cleared by Mr Cheong to allow that blue van to be backed in so Mr Karmas' body could be loaded into the van. Mr Cheong said the van couldn't be unloaded because Sam was not there. Well you might think well how long would it take to unload that van?" 1. Subsequently, the prosecutor referred to the possibility that Mr Karmas left and returned, or as it came to be described, "the 5 o'clock theory" (T 2459.4-37): "Ladies and gentlemen there's almost an hour unaccounted for at Wilga Street by Mr Cheong. If Sam did not leave Wilga Street alive after first arriving then Mr Cheong must've been lying to the police when he stated Sam left, and you might think that is the same story given by Mr Fantakis, and you might ask yourselves well Mr Fantakis in his writing said Sam left and came back and then he attacked him. So that might be right. Maybe Sam did leave and then he came back as Mr Fantakis said he attacked him and he said that in three different writings of his. Ladies and gentlemen if you accept Mr Fantakis is talking about what really happened, then you might think there are two explanations. Sam did leave and he came back. If he did leave and came back after Mr Cheong's been taken home, well as I said at the beginning of my closing when I was talking about circumstantial evidence and I gave an example well if the only evidence we have in relation to Mr Cheong is that he was there the next day and helping to repair the back room, well you may well not be satisfied beyond reasonable doubt that he knew that Sam Karmas had been killed if he wasn't there. So if Sam did leave and then come back, you might be left with that result. However the only two persons who say Sam left are Mr Fantakis and Mr Cheong. There's no evidence ladies and gentlemen that Mr Sam Karmas left [the Wilga Street Property] on foot alive. As I referred to earlier, if he had something to do - if Mr Karmas had something to do, if he had to go home and he did get home, well he didn't do very much at home. He didn't pick up his wallet if he had to go somewhere, he didn't lock up his tools that he was very fond of, he didn't jump in his vehicle so he could drive out towards Westmead Hospital and make these text messages. So it would be my submission to you ladies and gentlemen that you wouldn't accept that Sam Karmas left Wilga Street on foot. The other explanation and I'm going back to Mr Fantakis' writing saying Sam left, he came back and then he attacked him, is Mr Fantakis has told his story so many times of Sam leaving that he incorporated that into what he actually did to Mr Sam Karmas." (emphasis added) 1. As noted above, the Crown case, to this point, had been that the murder occurred in the 67 minute window between 2pm and 3:07pm. The alternative, that Mr Karmas left and came back in the afternoon was, as the prosecutor acknowledged above, fatal to proof of knowledge of the murder on the part of Mr Cheong. 2. The applicant's counsel, in his closing address, responded to this part of the closing address as follows (T 2643.7-2644.2): "Again, there's alternate theory which is that on some of the writings of Mr Fantakis Mr Karmas comes in, goes out, Mr Fantakis takes Mr Cheong home, comes back, at some point Mr Karmas returns, but if you look carefully at that material Mr Karmas is said to have returned with a taser, which is just fanciful, frankly. There's no reason - if you're thinking of all of the evidence you've heard about Mr Karmas, there's no way, ladies and gentlemen, in my submission to you you would think that he would return with a taser. That's the process of a delusional mind that you see in those writings. That's what I say about those writings and recordings. Also, the Crown left it to you and say, "Well", you know, "possibly that's the case that this is what occurred", but again, as I say there's that part of the writings, at CG, is the part that's in evidence before you of the taser, disabling, torturing Mr Karmas and can I say that when you read this, which is quite - I appreciate it's a bit difficult to read, but if you read that material it includes that Sam is supposed to have revealed that Anna, Maria and Detectives Blanch and McGee were involved somehow and the chip was put in Nick's head to make him mad. It's delusional material and it's obviously the case that no police officer was involved in any criminal activity. There's no chips in people's heads. There's no organs being bought and sold by the coroner or any of that material. This is, as you've heard from the psychiatrists, there was a point in time at which Mr Fantakis developed a mental disorder and I say that when you look at the writings and the recordings, that's what you'll see in there, that's it playing out. But even in that series of delusional recordings and CG is one of the classic versions of that, there's no writings there that Mr Fantakis says, "Oh and I killed him". He says, "I tied him up". You heard from Detective Brennan who went through all the material saying there was never a suggestion of a killing. There was nothing either about where the body was taken and disposed and how and the like. So, these delusional rantings, if I could put it that way, even had a sort of cul-de-sac around them where it stops at a certain point and doesn't lead onto actually having harmed Mr Karmas to the point where he died. Going back to this version about Mr Karmas coming back, my learned friend, the Crown Prosecutor, didn't put that to Mr Fantakis because his case had always been that, look, Mr Karmas never left of his own accord between 2 and 3, that was the Crown case. He left it to you as an alternative theory, but can I just address that in this way? By saying for the same reasons that I said about Mr Hughes' argument about this timeframe, when you're looking at the timeframe and you're looking at exhibit [CJ], you can see that on 11 August, on that afternoon, there is all of those calls being made, there is the version that he gives about what he did, where he went and to whom he spoke. Again, that's one of those fanciful writings of Mr Fantakis that you would take as something that was the product of a delusional disorder." 1. Exhibit CJ, referred to above, contained a further version in which the applicant said that Mr Karmas returned around 5pm, but in which the applicant said that after torturing him for three hours he released him, after which Mr Karmas "staged" his disappearance to "save face". 2. After addresses and prior to the summing up, an issue was raised by counsel for Mr Woods and the applicant with respect to an asserted "shift" in the Crown case. Application was made for a direction to be given to the jury that their consideration of whether Mr Karmas was murdered at the Wilga Street Property be confined to the "67 minute window". The application was opposed by the Crown. It was also opposed by counsel for Mr Cheong. Mr Cheong's opposition was based on the fact the Crown case against him was dependent on his presence in the 67 minute window. Given this, if there was a reasonable possibility the murder occurred later, he was necessarily entitled to an acquittal. Mr Cheong submitted that such a direction would prejudice his defence, in circumstances where the application was made after addresses and he would have no opportunity to tailor his address accordingly. The Crown supported his concerns in this regard. The concerns expressed by counsel for Mr Cheong and supported by the Crown were, in my view, unfounded. If the Crown case was limited as sought by the applicant, then a failure to prove the murder occurred in the window would have resulted in the acquittal of the applicant, Mr Woods, and Mr Cheong. Conversely, if the Crown case was not so limited, a failure to prove the murder occurred in the 67 minute window was fatal to the case against Mr Cheong, but not as against the applicant and Mr Woods. 3. Subsequently in her summing up, her Honour told the jury, by reference to the indictment: "So the Crown must prove beyond reasonable doubt that Mr Karmas was killed in New South Wales at Punchbowl. Punchbowl is the relevant place, members of the jury, not specifically the second bedroom at [the Wilga Street Property]. The Crown case is that Mr Karmas went to [the Wilga Street Property] to help Mr Fantakis move furniture on that afternoon, and he did not leave the house alive. Wilga Street is in Punchbowl, and that is where you get Punchbowl from. The Crown has pointed to two possibilities as to when and where this crime occurred on 11 August 2011. You will recall that in his closing address the Crown said that there was evidence that Mr Karmas was murdered in the early afternoon in the second bedroom at Wilga Street, and that is the Crown's case to you. That is the case the Crown asks you to find beyond reasonable doubt. But the Crown also points to evidence which says that Mr Karmas may have been murdered, still at Wilga Street, but later in the afternoon, at or after 5 o'clock in the afternoon. And specifically the Crown referred you to the writings of Mr Fantakis, some of which refer to Mr Karmas leaving the premises at about 2 o'clock or so, later coming back to the premises and violence being applied to him at that point in time. Whilst the Crown submits to you that you would accept Mr Karmas was killed at the earlier time between 2 and 3 when Mr Cheong was still present somewhere on the property working, the Crown says you would accept that earlier timeframe, it has pointed you to that evidence, and you should bear that other evidence in mind." 1. It is apparent from the above, that while the Crown's primary position was that the murder occurred in the 67 minute window, the case ultimately went to the jury on the basis that it could also have occurred when Mr Karmas returned at around 5pm. Principles 1. In some circumstances a change in the Crown case in the course of a trial will result in a miscarriage of justice. The issue ultimately falls to be determined by reference to the fairness of the applicant's trial. This was the basis upon which her Honour determined the issue, and found against the applicant, leading to her refusal to limit the Crown case as sought: R v Fantakis, Woods and Cheong [2018] NSWSC 749 at [71]. An assessment of whether her Honour erred in her determination requires an examination of the applicable principles. 2. In King v The Queen (1986) 161 CLR 423; [1986] HCA 59, the appellant was convicted of murder after a trial held jointly with an alleged co-offender, Matthews. It was the Crown case that Matthews carried out the murder at the instigation of the appellant. The trial judge initially directed the jury that, given the way in which the case was framed, the acquittal of Matthews would also result in the acquittal of the appellant. However, at the invitation of the Crown, the trial judge directed the jury that the appellant could be convicted if they were satisfied that the appellant was party to an agreement with some other person, and that agreement resulted in the murder of the deceased, whether at the hands of Matthews or otherwise. This Court quashed the appellant's conviction as a result of the unfairness resulting from the change in the case and ordered a new trial. The appellant applied for special leave to appeal to the High Court, the only issue in that Court being whether this Court was wrong to order a retrial rather than enter an acquittal. Dawson J, who gave the reasons for the majority, said (at 432): "The jury brought in a verdict of guilty against King but acquitted Matthews. King appealed to the New South Wales Court of Criminal Appeal, which allowed his appeal upon the basis that the trial had miscarried when, at the instance of the Crown, the trial judge had introduced for the first time in his summing up the possibility that some person other than Matthews had killed the deceased. The element of surprise involved in this course was held to have resulted in possible prejudice to King's case, his counsel having cross-examined Siemsen and addressed the jury in reliance upon the presentation of a case by the Crown that the person who killed the deceased was Matthews. Had King's counsel known that alternatively Siemsen or some other person unknown to the Crown was alleged to be the actual murderer, he may well have cross-examined or addressed in a different way. No exception was taken before us to the finding of an irregularity or the quashing of the conviction. Indeed, it may be said that the direction given by the trial judge at the behest of the Crown involved such a change in the course of the trial at such a late stage that inevitably the conviction could not be allowed to stand: see Reg v Laird; R. v. Thompson and Gamble; McManamy v Fleming; Gregory; Falconer-Atlee; Cross and Channon." [footnotes omitted] 1. While Murphy J was in the minority, given the limited issue, his Honour's observations are also of relevance. Murphy J said (at 425): "Particulars in a Criminal Trial. It is the right of every accused person to know, with particularity, the case which the prosecution wishes to prove at trial. As a direct consequence of this right, a prosecutor "clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge": Johnson v Miller per Dixon J." [footnotes omitted] 1. In KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11, McHugh J said at [15], that the provision creating the offence with which the appellant was there charged: "… operates in the context of an adversary system of criminal justice where an accused person is entitled to be given as high a degree of particularity concerning a criminal charge as the subject matter will bear. An accused person "is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge". These particulars are needed to ensure that the accused person has a fair opportunity to defend the charge." ([footnote omitted] 1. Later, in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, the High Court said (at [26]): "The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge." 1. While an accused is entitled to particulars, clearly particulars are not elements. Proof of guilt of a criminal charge relies on proof of the elements of the offence, not of the particulars. There are circumstances in which proof of a particular will become essential to proof of the charge. An issue commonly arises in sexual assault trials with respect to whether the date on which the offence is alleged to have occurred has, in the circumstances of the case, become a material particular. In R v Kennedy (2000) 118 A Crim R 34; [2000] NSWCCA 487, Studdert J (with whom Heydon JA and Greg James J agreed) said, at [33]: "There are cases where time has been made of the essence of the offence. This was such a case, because the complainant, was insistent that the offence occurred on the same day as the royal wedding, and she was also insistent – she said she was 100 per cent sure – that she witnessed a live broadcast of that royal wedding just before the commission of the offence. The complainant's evidence as to the commission of the first offence made the time of such commission essential to the acceptance of her evidence and was crucial in the sense referred to by Gleeson CJ in VHP (unreported, Court of Criminal Appeal, NSW, No 60733 of 1996, 7 July 1997) where the Chief Justice said (at 15): "As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable." 1. A consequence of time being rendered "of the essence" by the complainant's evidence was that a miscarriage of justice occurred when the Crown prosecutor sought to accommodate evidence that suggested the events could have occurred on a different day to that alleged by the complainant by successfully applying to amend the indictment and submitting in closing that the complainant could have been watching a replay of the royal wedding, with the result that the offence occurred on a different day. See also WGC v The Queen (2007) 233 CLR 66; [2007] HCA 58 at [43], [67] per Kirby J (there in dissent, with whom Gummow J agreed). 2. The "time is of the essence" cases are examples of a broader principle. Robinson v R (2006) 162 A Crim R 88; [2006] NSWCCA 192 was a case in which the change to the bases on which the applicant could be convicted was introduced by the trial judge in the summing up. This situation introduces additional difficulties, including that the parties have necessarily concluded their addresses. However, equally relevant to the present situation are the observations of Johnson J at [141]-[142]: "141 Thirdly, the obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case: Tran v The Queen (2000) 105 FCR 182 at [133]. 142 If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown's colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at [148]." 1. A particularly egregious example of the Crown changing its case in the course of its closing address to the prejudice of the accused is the well known case of R v Anderson (1991) 53 A Crim R 421, which is discussed in some detail in Tran v R, referred to by Johnson J above. 2. As can be seen, the issue requires analysis of the nature of any prejudice suffered by the applicant, such that it might be said there was a miscarriage as a result of the widening of the Crown case, or "wrong decision" on a question of law on the basis of the refusal to limit the Crown case. Application to the present case 1. The applicant contended the "two cases" were mutually exclusive and it was not permissible for the Crown to pursue both. This, the applicant asserted, is what occurred as a result of the trial judge's refusal to limit the Crown case. In one sense the two possibilities were mutually exclusive – if Mr Karmas was murdered before 3:07pm then he was not murdered later. But that does not mean there was necessarily unfairness in the presentation of the case on the basis that it could have been either. It is commonplace that the Crown does not know the precise circumstances in which a crime occurred. A relatively common occurrence is the case where multiple accused acting together are alleged to be responsible for a death. The Crown is entitled to bring a case against an accused on the basis that he or she inflicted the blow causing death, or aided and abetted another accused who did so. Here, had the Crown case, from the outset, been that the murder occurred at some time in the afternoon of 11 August, there would have been no unfairness (although that obviously would have undermined the case against Mr Cheong). The issue is to be resolved on the basis of the asserted change to the Crown case. 2. The nature of the change was to expand the timeframe in which the killing could have occurred. The trial judge, as noted above, considered the question on the basis of the possible prejudice to the applicant (see at [71] of R v Fantakis, Woods and Cheong). Her Honour said (at [74]-[77]): "74. The time at which the murder occurred is of limited significance to either the case relevant to Mr Fantakis or that relevant to Mr Woods, within a period between about 1pm to 5:59pm on 11 August 2011. 75. Mr Fantakis called a case and gave evidence himself. In his evidence he had an opportunity to, and did, address his movements for the whole of the afternoon of 11 August 2011, not restricted to the period 2pm to 3pm: [her Honour then set out numerous transcript references in support of her proposition]. 76. There was nothing in his evidence that gave rise to an alibi for the whole of the period after Mr Cheong's departure, or other matter which could cast doubt on the possibility of him having killed Mr Karmas on the afternoon of 11 August 2011, which he did not further pursue because he understood the Crown's case to be restricted to the period between 2pm and 3pm that day. On his evidence, the accused was alone at Wilga Street for, at least, two periods of time after Mr Cheong had left for the day, being before his mother arrived sometime shortly before 4pm, and after she left at around 5pm or 5.30pm, and his own departure from Wilga Street, at about 6.30pm. 77. In those circumstances, fairness does not dictate the necessity of confining the Crown to a case wherein the murder occurred in the period between 2 and 3pm on 11 August 2011." 1. In support of his complaint, the applicant points to the evidence his mother could have given, and its significance in the context of what he complains was an alternative case theory advanced by the Crown. The applicant's mother, if called, may have supported the applicant's evidence with respect to her presence for part of the relevant afternoon. While the Crown did not challenge the applicant's evidence that his mother was there for part of the time, it is necessary to have closer regard to the evidence of the applicant, and the evidence he says his mother could have given. 2. The applicant's evidence was that Mr Karmas contacted him on 11 August and offered to help him. The applicant said Mr Karmas came to the Warwick Street property and assisted him there for about an hour. The applicant, Mr Cheong and Mr Karmas loaded some items into the blue van and drove to the Wilga Street Property. The applicant said Mr Karmas entered the house but only went as far as the hallway. He said that as soon as he arrived, he realised he had forgotten something and he left. He said he did not see him again after that. He said he received a text message from Mr Karmas telling him that he (Mr Karmas) would not be able to return. His evidence was that he worked at Wilga Street with Mr Cheong until leaving to take Mr Cheong home. He then returned to Wilga Street. He said his mother arrived about 15 to 20 minutes before he received the text message from Mr Karmas and she remained at Wilga Street until about 5 or 5:30pm. The applicant said he remained at Wilga Street until about 6:30pm when he left in the blue van to meet Mr Woods. 3. The applicant tendered the statement of his mother, Antonia Fantakis given to the police on 8 September 2011 in support of this ground (Annex P of the applicant's affidavit of 1 September 2021). In her statement, Antonia Fantakis said she arrived at Warwick Street at about 1pm on 11 August 2011. The applicant was there, as was another man fitting the description of Mr Cheong. She said Mr Karmas arrived about 5 minutes later, said hello, and then went upstairs to fix a lock on the bedroom door. She said that just before she left to go to a nearby shopping centre, Mr Karmas came halfway down the stairs and said he would see her later that afternoon. She had planned to provide food for the applicant and Mr Karmas as she had earlier been told that Mr Karmas would be helping the applicant at the Wilga Street property. 4. Antonia Fantakis' statement indicated she returned to the Wilga Street house. She said it "must have been after 3:00pm when school finishes" as she recalled seeing school kids on the way back. She said that at this time the applicant was on his own at the house and was working on the walls in the second bedroom. She said, further, that shortly after she arrived the applicant's mobile phone sounded and the applicant told her not to prepare food as Mr Karmas had told him that he had to go somewhere. She told police that she then stayed outside gardening in the front yard until about 5:30pm when it started to get dark. 5. Antonia Fantakis' statement that the applicant was alone at the premises when she returned from the shops and the evidence of the applicant to the same effect meant that she arrived after Mr Cheong had been taken home and her evidence was, consequently, of limited relevance to a case based solely on the 67 minute window. This might explain a decision not to call her as a witness if the Crown case was limited to the narrower timeframe. However, her assertion that she was at Wilga Street until 5:30pm does not fit easily with Mr Karmas having returned to the premises sometime around 5pm and being killed after that time. The question arises, therefore, as to whether the Crown's reliance on a wider timeframe caused unfairness or prejudice to the applicant by impacting the decision not to call Antonia Fantakis. A number of considerations operate together to support the conclusion that there was not such unfairness. 6. Firstly, there was clearly a reluctance on the part of the applicant to call his mother. Antonia Fantakis' statement to the police, as discussed above, said that when she returned, the applicant was working on his own on the walls in the second bedroom. That Antonia Fantakis did not suggest that she observed anything untoward on her return might have been considered helpful to the applicant in rebutting the Crown case that the murder had occurred in the 67 minute window. While this statement had been served on the applicant, the applicant was on notice prior to the start of the trial that the Crown did not propose to call Antonia Fantakis, having regard to the fact that she was the mother of the applicant and had, herself, been charged with accessory after the fact to murder. Having been so advised, the applicant made no request that she be called by the Crown and the applicant did not call her himself. Of course, that is not to say the same forensic decision would necessarily have been made if the applicant understood the case would go to the jury on the basis that he may have killed Mr Karmas after 5pm. It does, however, suggest a reluctance to call Antonia Fantakis. 7. Significantly, the version given by Antonia Fantakis in the statement referred to above was not the only version given by her to police. The Crown tendered, in response to this ground, the transcript of an electronically recorded interview between Antonia Fantakis and the police conducted on 13 August 2011; that is, two days after Mr Karmas disappeared and approximately one month prior to the statement referred to above. In that interview, she gave the following answers in relation to 11 August: [Annexure W to McGee affidavit 13 Oct 2021] "Q123 So when was the next time you spoke to your son, Terry? A When I come back to the other house. Q124 Which one? A The 34 Warwick, 37 - - - Q125 Oh, to Wilga. A Yeah. Q126 37 Wilga. A Yes, Terry said to me, "Sam is going to give me a hand to put some in the van" and I took it they going to go to the other house, because they painted the other house also too. Q127 O.K. A And ah I went there and I said, "Terry, what are you going to do, where you are going to eat for dinner?" He say, "Mum, don't worry, Sam just mention to me he's not ah he's ..... because he has to go somewhere" and left. Q128 O.K. So what time do you reckon you got to 37 Wilga? A 3.30 or something like that. Q129 Yeah. A 3.00, 3.30 something like that. Q130 O.K. And you said you asked Terry about dinner. A Yeah, Terry said to me. "Don't worry mum because just now, Sam give me, send me a message and say he's not going to come, because he has to go somewhere." Q131 Oh, O.K., yeah. A And I left, since that I didn't know nothing." 1. The answer "[a]nd I left, since that I didn't know nothing" on its face appears to be inconsistent with the later assertion that she remained at Wilga Street gardening until about 5:30pm. This inconsistency would further militate in favour of a forensic decision not to call Mrs Fantakis. An additional matter militating against calling Mrs Fantakis was an answer given in the interview in response to a question as to the relationship between the applicant and Mr Karmas. While throughout the interview, Antonia Fantakis said the relationship between the families including that between the applicant and Mr Karmas was good, there was one answer which did not sit squarely with this. At one point, Antonia Fantakis was asked whether the applicant's relationship with Mr Karmas was still good to which she responded "[y]eah, until ... three weeks ago" (see McGee Annexure W, p7). While this was not explored in the interview, clearly it was a matter likely to be explored in evidence. Again, however, despite the obvious potential risk in calling Mrs Fantakis, it is not known as to whether that forensic decision may have been affected had counsel understood it would be open to the jury to convict the applicant on the basis that he killed Mr Karmas outside the 67 minute window. 2. The Crown on the appeal read an affidavit of the applicant's trial counsel. In it he said, relevant to this ground: "As I understood the evidence, Mrs Fantakis could not give the accused an alibi for the entire period of that afternoon as she came and went at various times. Further, instructions had been received at the start of the trial that Mrs Fantakis not be called. This was on the basis of her age, lack of sophistication in English, emotional distress likely to be experienced by her giving evidence about the death of one son in the murder trial of her other son, and about matters that would not, on balance, advance the applicant's case in a material respect. It was also clear that the Crown would press her, properly, on her own actions and motivations that had previously seen her charged with accessory after the fact to murder. The applicant understood these facts and did not wish for his mother to be subjected to the trial process." 1. Mr Todd was cross-examined by the applicant on his affidavit. He agreed that the 5 o'clock proposition was "somewhat of a surprise when it arose". Counsel went on to say, with respect to the applicant's writings, which were the genesis of the 5 o'clock theory: "… my strategy was to try and have the jury consider those matters and things that were recorded to be non-sensical and as I say the product of a disordered mind, therefore I did not wish to focus upon those writings in any way shape or form, and I, as I understood it from you, and this note [a reference to a file note taken by the solicitor] reinforces the belief that I had, considered that this splitting of the case in that way, if the Crown was to adopt that, would weaken their primary case." 1. This answer neatly encapsulates the forensic considerations at play. Any attempt to deal directly with the 5 o'clock theory ran the risk of giving weight to the applicant's statement in the writings that Mr Karmas returned around 5 o'clock. This in turn necessarily gave weight to the aspect of the writings in which the applicant said he harmed Mr Karmas (and explained his motives for doing so). It was a legitimate forensic decision to use the Crown's reference to the 5 o'clock theory as a sign of weakness with respect to the primary case. Any potential gain from calling Antonia Fantakis was very limited, especially given that the primary Crown case remained that the killing occurred in the 67 minute window. 2. Ultimately, while there was clearly a forensic advantage in seeking to have the Crown case limited, when this application was refused there was no further application made by the applicant. While the defence case had closed and the Crown had addressed, the applicant was not precluded from an application to reopen his case in order to call Antonia Fantakis or to otherwise deal with the 5 o'clock theory. In Mahmood, the plurality (Gleeson CJ, Gummow, Kirby and Kiefel JJ) observed at [15], that courts are "usually inclined to allow a re-opening to call evidence considered to be of sufficient importance, even after addresses". No such application was made. 3. The applicant also suggested in submissions that he was prejudiced in that he was denied the opportunity to test the 5 o'clock theory during cross-examination of "a number of prosecution witnesses" or to call further evidence. The applicant did not, however identify the nature of any such cross-examination, or, with the exception of his mother, what witnesses might have been called. Nor are these matters apparent. In these circumstances, this submission did not advance the applicant's appeal. 4. The applicant also submitted that the 5 o'clock theory was inconsistent with the sending of the text messages from Mr Karmas' phone commencing at 3:57pm. It will be recalled that it was the Crown case that those messages were sent by Mr Woods, using Mr Karmas' telephone. Mr Woods' phone was in the vicinity of Granville at 5:09pm. The messages sent from Mr Karmas' phone asserted that he was, at 4:54pm and 5:09pm, near Westmead Hospital, which the Crown alleged the applicant believed was Ms Angeles' former workplace. This aspect of the Crown case does not fit well with the alternative theory that Mr Karmas was killed after 5pm (although it is not necessarily inconsistent). If the jury (or some jurors) were of the view that Mr Karmas was killed after 5pm (or that this was reasonably possible), the Crown case lost some of its force insofar as it relied on these text messages. However, that is simply a matter that made the alternative theory weaker and does not assist the applicant's appeal. 5. Ultimately, the primary basis on which the Crown case was put was that the murder occurred between 2pm and 3:07pm. This was the strongest basis for the Crown case and was very likely the basis on which the jury accepted the applicant's guilt. This was consistent with the Crown theory with respect to the text messages referred to above. 6. While the evidence established Mr Cheong was present at Wilga Street between 2pm and 3:07pm, his acquittal is not necessarily inconsistent with the jury convicting the applicant on the basis that the murder occurred during that 67 minute window. The jury may have found the murder occurred during that timeframe but was not satisfied beyond reasonable doubt that Mr Cheong was aware of it. Mr Cheong may have been working in a different part of the house. In his interview he told police that he was listening to music through his earbuds. Consequently, he may not have heard anything which may have otherwise concerned him. As Mr Cheong's counsel pointed out, it was not in the applicant's interests to make Mr Cheong aware of the murder. Given the limited relationship between the two men there was no basis to assume that Mr Cheong would assist the applicant rather than alert the authorities. While Mr Cheong's assertion in his interview with police that Mr Karmas left shortly after arriving was more consistent with the 5 o'clock theory, even if this was a lie (which, if the murder occurred in the 67 minute window it likely was), this was not enough to demonstrate his knowledge of the murder and to accordingly require the conviction of Mr Cheong. Conclusion on grounds 4 and 5 1. It is apparent from the applicant's trial counsel's evidence on the appeal that he was taken by surprise when the 5 o'clock theory was raised in the Crown address. However, having regard to the above, it cannot be said that there was a miscarriage of justice as a result of the reference to the 5 o'clock theory in the Crown's closing address. The primary basis on which the applicant claims to be prejudiced was in the decision not to call his mother to give evidence. There were clearly sound forensic reasons militating against calling the applicant's mother. More significantly, while the applicant's trial counsel on his evidence on the appeal agreed he had been taken by surprise, once the problem had arisen, he regarded it to be advantageous to the applicant to rely on it as an indication of weakness in the Crown case, while keeping focus away from the veracity of the writings. Ultimately, those matters provide the forensic context in which to view the absence of any application to reopen the defence case. It also follows from the above that there was no miscarriage of justice as a result of any shift in the Crown case or the manner in which the case was left to the jury by the trial judge. I would, to the extent that leave is required, grant leave but would otherwise reject grounds 4 and 5. Ground 6 1. Ground 6 contains five sub-grounds, each of which complained about a failure to give a direction, or in the case of ground 6(5), the balance of the summing up generally. No complaint was made at trial by the applicant in relation to any of the matters that are now raised under this ground. Accordingly, the applicant requires leave to rely on each of these grounds pursuant to r 4.15 of the Criminal Appeal Rules. Ground 6(1) - the failure to give a Shepherd direction 1. This sub-ground is based on the High Court's decision in Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 (Shepherd). The trial judge directed the jury that while individual facts did not have to be proved beyond reasonable doubt, the jury was required to consider whether the established facts proved each element of the offence beyond reasonable doubt. Her Honour further directed the jury that, assuming they were so satisfied, they would still need to consider whether "there is any other reasonable conclusion arising from the facts which is inconsistent with the guilt of the accused". This was entirely orthodox. 2. Particular directions in relation to proof of a circumstantial case, such as a direction that the inference of guilt should not only be a rational inference, but rather, the only rational inference that can be drawn, are no more than "an amplification of the rule that the prosecution must prove its case beyond reasonable doubt": Shepherd at 578 per Dawson J. His Honour went on to observe that there is "no invariable rule of practice, let alone rule of law" that a circumstantial evidence direction should be given in every case involving circumstantial evidence. As noted above, her Honour in the present case gave a circumstantial evidence direction. The applicant contends, however, that more was required. 3. The applicant submits that the case against him involved a series of intermediate facts, each of which constituted an indispensable step in the reasoning process towards guilt. The applicant submitted that that chain "included" the following steps: 1. The applicant was present at the Wilga Street Property; 2. Mr Karmas attended the Wilga Street Property; 3. Mr Karmas was attacked and killed by the applicant at the Wilga Street Property; and 4. The body of Mr Karmas was disposed of by the applicant with the assistance of Mr Woods. 1. I note that Mr Woods did not accept the fourth of the above propositions. Nothing, however, turns on this for present purposes. It can be accepted that the above statements reflect the manner in which the Crown put its case. It does not follow that the jury was required to be directed that each was an indispensable step required to be proved beyond reasonable doubt. In Shepherd, Dawson J said (at 579): "The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol. 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." 1. Thus, that a matter can be identified as an "indispensable fact" does not warrant a conclusion that it was incumbent on the trial judge to direct the jury as to this. In the present case, the jury was properly directed as to the onus and standard of proof. The practical reality was that satisfaction of the elements beyond reasonable doubt necessarily implied satisfaction of the steps referred to above (at [901]), and vice versa. Each step relied on a body of circumstantial evidence which was to be considered together and not in a piecemeal fashion: Hillier. There is no basis on which to conclude that the application of the standard of proof was undermined in any way by the absence of an "indispensable fact" direction. 2. The applicant also complains that proof that Mr Karmas returned to Wilga Street around 5pm on 11 August was an indispensable intermediate fact. For the reasons given with respect to grounds 4 and 5, it was open to the jury to conclude that the murder occurred earlier, in the 67 minute window. There is no merit in this complaint. 3. Finally, in relation to this sub-ground, the applicant complains that the jury was directed that the facts making up the Crown's circumstantial case did not need to be proved beyond reasonable doubt. It was further submitted that this error was compounded by directing the jury that it would be wrong to consider a particular fact in isolation. There is no substance in either complaint. Gleeson CJ in HML v The Queen (2008) 235 CLR 334; [2008] HCA 16 said at [29]: "It is the elements of the offence charged that, as a matter of law, must be proved beyond reasonable doubt. (I leave aside presently irrelevant cases where insanity or some other defence is raised.) If evidence of a fact relevant to a fact in issue is the only evidence of the fact in issue, or is an indispensable link in a chain of evidence necessary to prove guilt, then it will be necessary for a trial judge to direct a jury that the prosecution must establish the fact beyond reasonable doubt; generally, however, the law as to standard of proof applies to the elements of the offence, not particular facts. … Trial judges commonly, and appropriately, direct juries in terms of their possible satisfaction of particular matters relied upon by the prosecution, without referring to a standard of proof in relation to each such matter. To do otherwise would risk error." 1. I pause to note that none of the four stages of proof set out above as indispensable "facts" were reliant on a single item of evidence. It follows that there was no single item of evidence which required a direction that it was necessary that the Crown prove that evidence beyond reasonable doubt. Further, it would have been wrong to direct the jury to consider various items of circumstantial evidence in isolation: Hillier. This sub-ground is not made out. I would grant leave but dismiss this ground. Ground 6(2) - breaches of the Browne v Dunn rule 1. This sub-ground is a complaint about the breach of the rule in Browne v Dunn (1894) 6 R 67. The applicant under this sub-ground complains that at no time during the trial was any witness, including the applicant, cross-examined on the proposition that Mr Karmas may have returned to the Wilga Street Property after Mr Cheong was taken home by the applicant. In other words, the applicant complains that the 5 o'clock theory was not advanced through cross-examination. 2. In MWJ v The Queen (2005) 80 ALJR 329; [2005] HCA 74, Gleeson CJ and Heydon J said (at [18]): "The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held in England, New South Wales, South Australia, Queensland, and New Zealand, to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial. Murphy J, in this Court, even applied it to the conduct of an unrepresented accused. However, for reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings." [footnotes omitted] 1. The above observations are most commonly considered in the context of complaints by appellants convicted after the prosecution makes submissions on, or the trial judge gives a direction as to, a failure of defence counsel to cross-examine prosecution witnesses on a matter inconsistent with the subsequently revealed defence position: see, for example, Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937. This, of course, arises in a context where defence witnesses generally give evidence after prosecution witnesses and the prosecution bears the onus of proof. The particular context here is the applicant's complaint that he was taken by surprise by the prosecution address. 2. What must be established by the applicant is a miscarriage of justice. In the present case, there was no unfairness to the applicant with respect to the evidence he gave, in not putting to him that Mr Karmas returned after 5pm. Irrespective of when the 5 o'clock theory first arose, it was plain on the applicant's evidence that his version was that Mr Karmas left shortly after arriving at Wilga Street and never returned. In these circumstances, there is no unfairness caused by the suggested denial of the opportunity of dealing with the 5 o'clock theory in his evidence. 3. The applicant, however, submits that the unfairness was not simply in the absence of an opportunity for the applicant to deal with the 5 o'clock theory, but rather, had the proposition been put to him or to any of the witnesses, it would have alerted the applicant to the prosecution's reliance on the alternative theory. This is another manifestation of the argument that a miscarriage was occasioned as a result of the point at which the Crown raised the alternative theory. This has been dealt with in the context of grounds 4 and 5 above. 4. I would grant leave but reject ground 6(2). Ground 6(3) – Jones v Dunkel 1. The applicant complains of a failure to give a "Jones v Dunkel direction" in relation to an asserted failure by the Crown to call the applicant's mother, Antonia Fantakis (referring to Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 (Jones v Dunkel)). The High Court in RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 held that the considerations that apply in a criminal trial make the application of the Jones v Dunkel direction inapposite. The situation is governed by what has come to be known as a "Mahmood direction", a reference to Mahmood where Gleeson CJ, Gummow, Kirby and Kiefel JJ said (at [27]): "It was neither necessary nor appropriate for the trial judge to direct the jury that an inference adverse to the case for the prosecution could be drawn because the presence of blood in the appellant's trouser pocket had not been the subject of evidence by the prosecution's witnesses. In the joint reasons in RPS v The Queen it was pointed out that where a witness, who might have been expected to be called and to give evidence on a matter, is not called by the prosecution, the question is not whether the jury may properly reach conclusions about issues of fact but whether, in the circumstances, they should entertain a reasonable doubt about the guilt of the accused. Similar views were expressed by Gaudron and Hayne JJ and by Callinan J in Dyers v The Queen." [footnotes omitted] 1. The appropriateness of such a direction is predicated on an expectation that the witness would be called. Here, it is not in issue that the Crown prosecutor advised the applicant's counsel that he did not intend to call Mrs Fantakis. No issue was raised by the applicant's counsel as to the prosecutor's decision. This was presumably based on an acceptance that the prosecutor had fulfilled his obligations in assessing the prospective witnesses' credit, at least partially on the basis of a consideration of the matters including those referred to above at [889]-[892] in the context of grounds 4 and 5: cf R v Kneebone (1999) 47 NSWLR 450; [1999] NSWCCA 279. Additionally, as noted above at [866], the evidence of the applicant's counsel read on the appeal was that the applicant did not want his mother to be called. It is not open to the applicant to now complain that the prosecution was obliged to call her. 2. It can be accepted that the decision of the prosecutor not to call the applicant's mother and the absence of any issue being raised as to this, occurred prior to the 5 o'clock theory being raised in the Crown address. However, as discussed above, it was still open for her to be called following the addresses. There was no application in this regard. 3. Accordingly, the applicant has not established a miscarriage of justice on the basis of a failure to give a Jones v Dunkel direction or a Mahmood direction. I would grant leave but reject ground 6(3). Ground 6(4) – warning of danger to convict on "writing" evidence 1. Under this sub-ground, the applicant complains that the trial judge failed to adequately warn the jury of the "danger of convicting the applicant solely on the writings and videos made by the applicant, taking into account that the evidence was not corroborated by any other evidence led by the Crown, and were made by the applicant who at the time was suffering from psychosis". The short answer to this argument is that the Crown case did not rely "solely" on admissions of the applicant in the "writings". Indeed, the prosecution case accepted that parts of those materials were unreliable. The present case was not one akin to a prosecution case reliant on a single witness, where a warning may be required (or may have, at one time, been required) as to the need to be satisfied of the evidence of that witness beyond reasonable doubt, and the consequent need to scrutinise that witness' evidence with care: cf R v Murray (1987) 11 NSWLR 12. I would grant leave but reject ground 6(4). Ground 6(5) – the summing up was unbalanced 1. It is not in dispute that a miscarriage of justice may be occasioned by a lack of balance in the trial judge's summing up to the jury: see McKell v The Queen (2019) 264 CLR 307; [2019] HCA 5 at [4]; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 at [61]. 2. There was no request for any redirection in relation to any matters that the applicant now relies upon. This suggests counsel did not perceive there to be any imbalance in the summing up on any of the bases now relied on. This is, of course, not conclusive: see, for example, Decision restricted [2022] NSWCCA 95. 3. In the present case the applicant relied upon eight submissions in support of his contention that the summing up was lacking in balance such that a miscarriage was occasioned. While an analysis of these submissions requires that they be dealt with sequentially, the summing up must be considered as a whole. A corollary of this fundamental proposition is that any cumulative effect resulting from individual complaints must be considered. Ground 6(5)(i) 1. The applicant submits that the failure to raise the directions the subject of grounds 6(1) to 6(4) give rise to imbalance in the summing up. Given the conclusions set out above, those matters do not raise any issue of imbalance in the summing up, whether considered individually or cumulatively. I would grant leave but reject ground 6(5)(i). Ground 6(5)(ii) 1. The applicant complains that the trial judge "reinforced the existence of the writing evidence, whilst failing to raise the obvious contradiction made by the Crown on the first day of its closing that the only evidence going to the second case theory was not reliable and lacked credibility". Her Honour, in her summing up of the case for the jury, referred to the "writing evidence". A discussion of that evidence was not, however, "extensive" in the sense that any undue weight was given to it. Further, while her Honour referred to the writing evidence at a number of points, her Honour also referred to the applicant's response to that evidence. 2. With respect to the reliability of the evidence her Honour told the jury the Crown submission was that "whilst some references in the material are clearly fanciful, others, including the admissions to harming Mr Karmas, are grounded in reality and should be accepted by you as reliable". A short time later, her Honour made further brief reference to the writing evidence, prefacing the discussion by saying "[t]he Crown says that some of what is in the recording certainly is clearly deluded, such as the reference to police involvement with Mr Karmas in the murder of Nicholas Fantakis, and the nanochips in his head and so forth. But other references, the Crown says, are clearly to real events." Her Honour then referred to Ex CF, without, in my view, either undue emphasis or detail. 3. Prior to the jury retiring to consider its verdict, in response to a request from counsel, her Honour reminded the jury that they had heard evidence and submissions about the applicant's mental state and its potential impact on the reliability of the writings. Her Honour reminded the jury that the only evidence of Mr Karmas returning at around 5 o'clock came from those writings and this was a matter to be considered in determining whether there was support for the contention that Mr Karmas returned to Wilga Street later in the afternoon. In my view, her Honour properly characterised the manner in which the Crown sought to rely on the writing evidence and identified the potential issues as to its reliability. There was no unfairness in any failure to direct the jury with respect to the unreliability of the evidence suggesting Mr Karmas had returned to Wilga Street at around 5pm. I would grant leave but reject ground 6(5)(ii). Ground 6(5)(iii) 1. The applicant submits that her Honour failed to "emphasise the obvious misconduct by detectives who made false and misleading statements including Delaney Forman Dodd, Henderson and Lye, in relation to Ex AA, statements obviously generated to [suit] the case being pursued by police". It might be recalled that there was no issue that the applicant was the author of this note, which on the Crown case related to a plan to dispose of the body. There was, however, an issue in relation to where it was found. The applicant's counsel's address to the jury pointed to inconsistencies in the evidence of the police in this regard. In relation to Detective Lye, counsel specifically referred to the variation in her evidence and stated explicitly that it did not mean that she was lying, but simply that she was wrong. Deliberate misconduct of these officers in relation to this piece of evidence was not part of the applicant's case. In summing up, her Honour instructed the jury that Mr Fantakis pointed out "the uncertainty of some of the police evidence about precisely where that note had been found, and he disputes that it was ever in the blue van". Having regard to the way in which the applicant's case was conducted, there was no unfairness in the manner in which her Honour dealt with this issue. I would grant leave but reject ground 6(5)(iii). Ground 6(5)(iv) 1. The applicant complains that "[n]o remarks [were] made on the obviously flawed investigation" whereas her Honour "[gave] an opinion about how circumstantial cases such as this can be very strong". What her Honour said in this regard was that "[a] circumstantial case is not necessarily weaker than a case based on direct evidence". Her Honour then gave an example of a case of direct evidence where that evidence might be regarded as seriously flawed. Having done so, her Honour reiterated that a case based on direct evidence is "not necessarily a strong case, and the inverse, I suppose here, is that a circumstantial case, even though it lacks direct evidence, is not necessarily a weak case". Her Honour then commented that it can be a "very strong case" and that it really depends upon the number of circumstances to be taken together in proving the case. Her Honour, in so directing the jury, did not express any view as to the strength of the case. Her Honour did no more than to point out, in orthodox fashion, that the strength of the case is not determined by classifying it as based on either direct evidence or circumstantial evidence. The words "I suppose here" refer to the present case being a circumstantial case, and that it did not follow from this fact alone that it was a weak case. As her Honour made plain, the case was to be assessed on its merits. There is no substance in this complaint. I would grant leave but reject ground 6(5)(iv). Ground 6(5)(v) 1. The applicant further complains that her Honour failed to "raise the second part of Mr Charawani'[s] evidence and the conduct by police, that sought only to obtain evidence in support of … convicting the applicant". The "first part" of Mr Charawani's evidence was in relation to the applicant threatening Mr Karmas. The "second part" related to evidence elicited in cross-examination that Mr Charawani thought Mr George Karmas was a dangerous man and that he had been told by Mr Karmas that Mr George Karmas had collected large amounts of money from "an old Greek guy". He said some of this money was used by Mr George Karmas to repay Mr Karmas money he owed him. Mr Karmas' receipt of these monies was relevant to the possibility of other persons having a motive to murder Mr Karmas. The evidence of Mr Charawani in this respect was not a major part of the applicant's case. The trial judge did direct the jury in relation to the defence theory with respect to possible "bad actors" around Mr Karmas. The absence of reference to the particular evidence of Mr Charawani in this regard was not such as to render the summing up unbalanced. 2. The second aspect of the submission is that the evidence revealed a bias in the investigation which should have been dealt with by her Honour. As noted above, the evidence in relation to the suggestion that Mr Karmas may have been impacted as a result of the activities of Mr George Karmas was elicited in cross-examination. The focus of the prosecution with respect to Mr Charawani's evidence was his evidence with respect to the threats made to kill Mr Karmas. That did not, however, necessitate any direction as to bias in the investigation. Indeed, there was no submission by the applicant's counsel with respect to Mr Charawani's evidence in this regard. It was not necessary for the trial judge to refer to this. I would grant leave but reject ground 6(5)(v). Ground 6(5)(vi) 1. The applicant complains that the trial judge referred on multiple occasions to evidence that Mr Karmas' DNA was located in the applicant's van, "emphasising the presumptive test being of blood, omitting that the defence were not able to test this as the sample was destroyed" (emphasis in original). The short answer to this is her Honour made plain to the jury that the testing was no more than a presumptive test. Her Honour reminded the jury that "there are many, many substances which can give false positives for human blood, including things like rust, I think even broccoli was one of the possible false positives". This was sufficient to ensure undue weight was not given to this evidence. I would grant leave but reject ground 6(5)(vi). Ground 6(5)(vii) 1. The applicant complains that her Honour failed to tell the jury that Mr Karmas' DNA may have been deposited as a result of transference. Contrary to the applicant's submission, her Honour not only referred to the multiple opportunities for Mr Karmas' DNA to be deposited in the van prior to 11 August, but also told the jury that "DNA could have been deposited by what was referred to as transference" such as by being deposited by the applicant after he had been in contact with Mr Karmas. There is no merit in this complaint. I would grant leave but reject ground 6(5)(vii). Ground 6(5)(viii) 1. Finally, under this sub-ground, the applicant asserts that the "emphasis and detail of the summing [up] was centred on the Crown's [case], while protecting the Crown's case from criticism, notwithstanding, the unfairness caused by the Crown in advancing the second case theory after the evidence closed". Insofar as this complaint relies on the "second case" or "5 o'clock" theory", this has been dealt with above. As already observed, no issue was raised by counsel as to the balance of the summing up generally, and no further detail has been provided by the applicant in relation to this ground (noting the more specific complaints that have been made above). The summing up as a whole traversed the evidence and the respective cases of the Crown and the applicant in a fair and balanced manner. This sub-ground is not made out. I would grant leave but reject ground 6(5)(viii). Conclusion with respect to ground 6 1. For the reasons set out above, none of the individual sub-grounds have been made out. Nor am I of the view that the cumulative effect of the sub-grounds was such that the summing up lacked appropriate balance. As noted above, while I would grant leave, I would reject each part of ground 6. Ground 7 – Non-disclosure of documents resulting in a miscarriage of justice 1. Under this ground the applicant complains that "NSW Police and the prosecution failed to disclose documents in existence causing a miscarriage of justice". It is not in dispute that a failure by the prosecution to comply with its duty of disclosure may lead to a miscarriage of justice: Edwards v The Queen (2021) 95 ALJR 808; [2021] HCA 28; Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708. 2. It is convenient to consider in turn the various documents or classes of documents with respect to which the applicant asserts there was a relevant non-disclosure of documents. Ground 7(1) – The phone records used to compile Exhibit J 1. Exhibit J was a spreadsheet which compiled telecommunications data from a number of different telephones in the period between 10 and 15 August 2011 into a single document. The applicant complains that the exhibit was not included in the brief of evidence and the late tender of the document was conditioned on the production of the original records on which the spreadsheet was based. The applicant complains that those records, and in particular Vodafone documents related to Mr Karmas' telephone, have not been produced. The applicant additionally notes the absence of cell tower information with respect to the entries relating to Mr Karmas' telephone. Any such information was clearly of significance, particularly with respect to the text messages from that telephone to the telephone of Ms Angeles on the afternoon of 11 August. 2. Contrary to the applicant's claim, records obtained from the various service providers were annexed to a statement of Sergeant Dennett dated 15 August 2015, including Vodafone records for Mr Karmas' phone. The affidavit of Detective Sergeant McGee read on the appeal confirms the statements of Sergeant Dennett of 12 November 2014 (which provided a compilation of data with respect to a number of relevant phones) and that of 15 August 2015 were served on the applicant as part of the brief of evidence. Those statements were subsequently tendered on a Basha inquiry as Exhibit O. Sergeant Dennett gave evidence on the Basha inquiry and explained how Exhibit J was compiled. 3. Sergeant Dennett also gave evidence in the trial on 19 and 20 March 2018. In his evidence before the jury, he explained Exhibit J was produced from the call charge records relating to about 40 different telephone services. His evidence was that not all of the records included the same information. For that reason some of the cells in Exhibit J were marked "@@@@" and some of the cells were blank. Sergeant Dennett gave evidence that Vodafone appeared to use the notation "@@@@" in place of the cell tower code to signify where a cell tower is not identified. In such cases, the corresponding cell tower location was left blank, consistent with the absence of any information from the provider. This was the case with respect to the cell tower locations in relation to the SMS messages from Mr Karmas' phone to Ms Angeles on the afternoon of 11 August. He said that no further information was available beyond that which had been supplied by the telecommunications companies (and what was provided was included). 4. Having regard to the above, it is clear that the information that was available was disclosed. It has not been established that there was any relevant non-disclosure with respect to the telephone records. Ground 7(2) – Documents sought in item 13 of the applicant's subpoena of 28 June 2017 1. On 28 June 2017, a subpoena was issued by the Supreme Court in these proceedings and directed to the New South Wales Police. Item 13 sought production of: "… all documents authorising the destruction of drugs allegedly discovered during the execution of SW 554/11 & CSW 278/11 at 37 Wilga Street, Punchbowl between the 14-18 August 2011 attached to DAL 2011 003804." 1. A central aspect of the applicant's complaint is that he was not provided with the relevant records in relation to the custody of drugs seized from the Wilga Street premises in the course of the execution of the search warrant. He complains that he only became aware of the document relating to the destruction of the drugs as a result of it being served in a brief with respect to drug charges against Mr Woods. It is true, as the applicant pointed out, that in correspondence relating to the subpoena, lawyers for the Commissioner of the NSW Police provided a response to each of the items in the subpoena with the exception of item 13. It is not known why there was no response in relation to item 13 in circumstances where each of the other items was specifically addressed. Ultimately, this is of no moment. The short answer to the applicant's complaint is that the affidavit of Detective Sergeant McGee read on the appeal establishes the document was served on the applicant prior to trial, as were the various police statements referred to by the applicant in his submissions in support of this ground. It follows that the applicant's complaint as to the non-disclosure of this document is not made out. Further, the applicant's submission that the asserted non-disclosure provides a basis for an inference of police misconduct loses its foundation. 2. The applicant under this heading additionally complains in relation to the execution of crime scene warrants, and in particular a failure to film the execution of the warrant, the failure to appoint an independent observer and a failure to use property seizure forms and provide receipts to the occupant. Legislative provisions in relation to crime scenes and crime scene warrants are contained in Part 7 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). While the applicant relies on the NSW Police's standard operating procedures for the execution of search warrants, together with statements made in the second reading speech introducing the Act, Part 7 of LEPRA imposes no such requirements. To the extent that the applicant relies on these asserted failures as misconduct, the legislation does not support him. In any event, any asserted failings in this regard were available to the applicant to exploit at trial if it was considered forensically advantageous to do so. Ground 7(3) – Documents held by Bass Hill Police holding yard 1. The applicant complains that there was a failure to produce documents related to the storage of, access to, and examination of the blue van at the Bass Hill Police holding yard. The affidavit of Detective Sergeant McGee states that the relevant documentary material was served on the applicant as part of the police brief. Accepting this, the applicant's complaint appears to relate to the adequacy of that documentation, and consequently police record-keeping with respect to the van. To the extent there was any inadequacy, this was a matter available to the applicant to exploit at trial to the extent that it was likely to assist him. No miscarriage of justice is established on the basis of any failure to produce documents included in this sub-ground. Ground 7(4) – The odometer reading of the seized blue van 1. The applicant complains that having subpoenaed the odometer reading of the blue van, this was not produced. The applicant points to evidence that established the van had been serviced on the day on which it was seized and the odometer reading was recorded. He submits that access to the odometer reading after the vehicle was seized would reveal how far the vehicle had travelled and would, in turn, potentially cast doubt over whether the mud scrapings taken from the vehicle were deposited before the vehicle was seized (or, having regard to the distance travelled according to the odometer, whether the scrapings were likely to have been, or at least possibly accumulated later). The Crown submits that all documentary records held by police regarding the odometer reading were served on the applicant, as deposed by Detective Sergeant McGee in her affidavit sworn on 13 October 2021. In that affidavit, Detective Sergeant McGee refers to the statement of the mechanic in relation to the servicing of the vehicle and states that it was served as an annexure to a police statement. She then states "[t]o my knowledge, there are no further records maintained in relation to the odometer reading" ([7] of affidavit 13 Oct 2021). The Crown submits that "[t]he Police were not obliged to produce, in answer to the subpoena, documents which did not exist and were not in their possession". 2. It is true that the subpoena could not oblige the police to produce a document with a record of the odometer reading. That said, in circumstances where it was clear that all the applicant sought was a current odometer reading, it is regrettable that such readily ascertainable information was not provided. This is particularly so given the circumstance that the applicant was charged with the most serious of criminal offences. That said, there was no non-compliance or other misconduct on the part of the police in this regard. In any case, lack of cooperation by the police, or obfuscation with respect to later odometer readings, was, again, available to the applicant to exploit if it was considered expedient. As it was, it does not appear that any cross-examination took place with a view to establishing whether the van was still in the possession of police and, if so, whether the odometer could be checked and, if necessary, a photograph taken. Conclusion with respect to Ground 7 1. It follows from the above that the applicant has not established a miscarriage of justice as a result of the non-disclosure with respect to any of the matters raised under this ground. To the extent that leave is required under s 5(1) of the Criminal Appeal Act, I would grant leave to rely on each part of ground 7 but would otherwise dismiss the ground. Ground 8 - Her Honour [erred] in law by denying production of documents in relation to a subpoena filed by the defence on 16 March 2018 1. On 16 March 2018, at the request of the applicant a subpoena was issued to the Commissioner of the NSW Police seeking production of the documents relating to an investigation of fraud based on a complaint against George Karmas. While the parties to the appeal are not the same as the parties to the subpoena, there may, nonetheless, be a wrong decision or other miscarriage of justice affecting the trial within s 6 of the Criminal Appeal Act in making orders in relation to a subpoena: see, for example Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [81]-[96]. 2. Details of the fraud complaint against George Karmas, and the subsequent investigation, were set out in a police event record (E 46810282) and a case report (C 45042572) (the police reports), which were together Exhibit U on the voir dire. The subpoena sought the following documents: "(a) All statements made by Sergeant Anthony Asquini and any other police officers involved in making any inquiries. (b) All police notebooks, investigator reports and any relevant documents made by Sergeant Anthony Asquini and any other police officers involved in the matter. (c) All statements from Steven Lafiatis and George Lafiatis. (d) All statements made by any other civilians in the matter including Minh Tran, Frances Tran, Bland Pharmacy Haymarket, Igal Makler, real estate agent, David Leaney, solicitor and Na Yi, tenant. (e) Any banking records, bank statements or bank documents obtained in relation to the matters including from the Commonwealth Bank and the ANZ Bank relating to any person involved in this matter including banking records for Australian Greek Investments and Lafiatis Investments Pty Limited. (f) ASIC reports, notes and reports from the City Fraud Unit." 1. The Commissioner of the NSW Police sought to have the subpoena set aside on the basis that it was a "fishing expedition" and it was not "on the cards" that anything produced would be of assistance to the accused in the trial. In ex-tempore reasons given on 22 March 2018, the trial judge set aside paragraphs (a), (b), (d), (e) and (f). Her Honour ruled that, having regard to the material in the police reports, it could not be said that it was "on the cards" that the material sought in those paragraphs could assist the applicant. 2. The material in the police reports established that on 12 July 2011, Stephen (or Steven) Lafiatis (both spellings are used in the reports) attended Waverley Police Station to report what he appears to have believed was a fraud perpetrated on his father, George Lafiatis (Mr Lafiatis), by George Karmas. George Karmas was known to Mr Lafiatis, as the former managed a number of properties owned by Mr Lafiatis. It was alleged that a power of attorney purported to have been executed by Mr Lafiatis in favour of George Karmas in 2009 was the result of either forgery or deception. It was alleged that George Karmas consequently obtained from Mr Lafiatis a number of properties with a value in excess of $3 million. Additionally, it was suggested that rent was not received from a tenant occupying one of the properties (the implication being these monies were misappropriated). 3. The police reports indicate the investigation was ultimately suspended on 19 March 2012. The reports indicate that after interviewing the purported witnesses to the execution of the power of attorney, the police were unable to find any support for an allegation of fraud. Records further indicate that the only witness to Mr Lafiatis' state of mind at the time of signing the power of attorney, a solicitor, told police that Mr Lafiatis was "in his right state of mind" at the time of signing. In relation to non-receipt of rent, the police reports indicated that the rent was in fact deposited into Mr Lafiatis' account. 4. Her Honour, at the time of her judgment, did not have the benefit of the decision of the Court of Appeal in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. There, Bell P (as the Chief Justice then was) said (at [60]-[61]): "60 There is a danger in using the language of "tests" for the setting aside of subpoenas and such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court's general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories: see CSR Limited v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 392; [1997] HCA 33. The variety of grounds on which a subpoena may be set aside is illustrated by the list of examples supplied by Powell J in [Botany Bay Instrumentation and Control Pty Limited v Stewart [1984] 3 NSWLR 98] at 100 (see [45] above). 61 As Brereton J said in A v Z at [3], a "subpoena will self-evidently be an abuse of process if it is not issued for a legitimate forensic purpose, of which it is an instance if it has not been issued bona fide for the purpose of obtaining relevant evidence." Evidence in that sense need not be admissible evidence and, as Samuels JA observed in Maddison v Goldrick at 663, documents subpoenaed for the purposes of cross-examining a witness have been treated as documents required for the purposes of evidence. This extends to cross-examination on issues of credit: see, eg, Brand at [36]; Norris v Kandiah [2007] NSWSC 1296 at [3]; and Liristis v Gadelrabb [2009] NSWSC 441 at [5] (Liristis)." 1. His Honour later said (at [65]): "It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are "apparently relevant" or, to use the words of Nicholas J in ICAP at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist." (emphasis in original) 1. His Honour, at [68]-[69] said: "68 There is a plain difference between "apparent relevance" and "fishing", the latter being the metaphor that is frequently deployed in this area of discourse: see, for example, The Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; (1938) 55 WN (NSW) 215. The word "apparent" admits of the possibility that the documents sought by way of subpoena may not ultimately turn out to be relevant. Their apparent relevance, however, should be able to be ascertained by an examination of the description or identification of the document or documents sought in the schedule to the subpoena in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements if they have been filed or served at the time of the issue of the subpoena. 69 If the documents are apparently relevant and, provided that the terms of the subpoena are not unduly vague or the ambit of the subpoena is not such that it would be oppressive to comply with it, the subpoena should not be set aside. …" 1. While it can be accepted that her Honour, based on the (then) current authority, determined the issue on the basis that "there [was] nothing to suggest it is on the cards that this material could assist the [applicant]" rather than on the basis of a test of "apparent relevance", nothing turns on this in the circumstances of this case. The enquiries made by police did not, according to the police reports, produce evidence of any fraud. There was no basis on which to conclude that any police statements, notebooks or investigator reports were capable of materially assisting with respect to any identified issue. This was similarly the case with respect to item (f), which sought similar material but from ASIC and the City Fraud Unit. Item (d) sought statements made by civilians, including a real estate agent, those connected with witnessing the power of attorney, and the tenant in relation to whom there was a suggestion rent was misappropriated. Firstly, there was no suggestion in the police reports that any of these people had in fact made statements. Minh Tran, in fact, expressly refused to do so. Further, and as noted above, the witnesses to, or persons potentially relevant to the witnessing of, the power of attorney (Minh Tran, Frances Tran, Bland Pharmacy Haymarket, and David Leaney) did not support any allegation of fraud. In relation to the tenant, Na Yi, the police reports indicate rent was paid into Mr Lafiatis' bank account and there is no reason to think this person could provide any further relevant information. The final person in relation to whom a statement was sought in this paragraph is a real estate agent, Igal Makler, who according to the police reports apparently indicated a concern for Mr Lafiatis and provided documents to police on 1 August 2011. There is, however, nothing to indicate that this person had any knowledge of George Karmas or that he was able to provide any information to materially further the investigation. 2. It is to be noted that her Honour did not set aside paragraph (b). Ultimately, if there was to be any material of relevance, it was to be found in reports to police by Stephen Lafiatis and Mr Lafiatis. Of course, if such material led to further lines of enquiry, it was open to the applicant to pursue them, using the documents obtained to establish the potential relevance of the documents sought. The potential relevance of the reports to police by Stephen Lafiatis and Mr Lafiatis sought by paragraph (b) of the subpoena, to the disappearance of Mr Karmas was, as the trial judge acknowledged, somewhat tangential. However, from the applicant's perspective, any support for the contention that there were other persons with an animus against Mr Karmas who may have been involved in his disappearance could only come through the material the trial judge allowed. There was nothing to suggest that any of the other material could provide any further support. 3. I am not of the view that the trial judge erred in denying production of the documents referred to in this ground. This ground must fail. To the extent that leave is required under s 5(1) of the Criminal Appeal Act, I would grant leave but reject ground 8. Ground 9 - Her Honour wrongly admitted listening device evidence, Exhibits CS and CX on the grounds of consciousness of guilt 1. As a result of warrants granted to police, numerous conversations including conversations between the applicant and Mr Woods were recorded. Objection was taken to a part of the recordings taken on 25 and 26 November 2011. The Crown submitted the evidence was available to go to the jury as evidence of consciousness of the applicant's guilt. The applicant submitted the evidence was inadmissible because it was not relevant (as required by s 55 of the Evidence Act 1995 (NSW)), or, failing this, because it was inadmissible pursuant to ss 135 or 137 of the Evidence Act. 2. Her Honour ruled substantial portions of the recordings to be inadmissible pursuant to s 137 of the Evidence Act. Two recordings, the first between 18:21 and 18:44 on 25 November and the second between 18:46 and 18:55 on the same date were found to be admissible: R v Fantakis; R v Woods [2018] NSWSC 1814. Those recordings formed part of what became Exhibit CS. (Other parts of Exhibit CS were recordings which were not relied on as consciousness of guilt, and not the subject of objection.) While determinations of relevance, and of inadmissibility pursuant to ss 135 and 137 generally involve questions of degree, they do not involve the exercise of discretion. As is ordinarily the case for determinations in the nature of evaluative judgements, review in this Court is on the basis of whether the decision at first instance was correct (and not whether the decision was open): see Rogerson v R; McNamara v R (2021) 290 A Crim R 239; [2021] NSWCCA 160 (Rogerson v R; McNamara v R) at [542]-[548]. 3. On the Crown case, the relevant recordings were of a discussion between the applicant and Mr Woods in relation to killing the officer-in-charge of the investigation, Detective Senior Constable McGee (Sergeant McGee by the time of her evidence in this trial), although on any view, the discussion was led by Mr Woods. It is convenient to consider this ground in the context of the manner in which the evidence was used in the trial. 4. In addressing the jury, the Crown referred to evidence that on 21 December 2011, Mr Woods was seen with a person fitting the description of the applicant at a café adjacent to the Bankstown Police Station, where Strike Force Flaggy was headquartered. Reference was made to the evidence of Inspector Doueihi that he became aware in November 2011 of possible threats towards Detective Sergeant McGee and advised the applicant and Mr Woods that there was a current investigation in place in this regard with the purpose of discouraging them from acting on any alleged threats. The Crown Prosecutor noted that both the applicant and Mr Woods denied the allegation when it was put to them. The Crown Prosecutor then addressed the two tracks in Exhibit CS, as follows: " … track 2, 25 November 2011 at 6.21pm, … Well you might think there's no doubt about who [Mr Woods is] referring to and not a mistake as to what was said, "Officer-in-charge Flaggy dead." "That won't be a problem man, haha." Track 3 on 25 November 2011 at 6.46pm, … Woods says: "Gun, fuck this," and as it's been explained, ladies and gentlemen, and you might recall these recordings aren't the best quality, so it's a matter for you what you hear whether it's "gun" or "get it done." "We've got to get a gun," or "get it done." Fantakis says, "It's the only fuckin' way." Woods: "What do you mean it's the only fuckin' way?" Fantakis, "What are you talking about the only way." Woods, "That's how you deal with it like that I'm just asking because … if you can't help me I'll do it myself." And then at p 10, Mr Woods says, "I want to influence the fuckin' hunter," obviously referring to Detective Senior Constable McGee. Now the Crown relies upon this evidence as showing a consciousness of guilt by each of the accused in relation to their involvement of the murder of Sam Karmas. The Crown says that this evidence supports an inference that each accused planned to kill the officer-in-charge, Detective Senior Constable McGee, or wanted to see her dead because she was investigating the crime that they knew that they each had committed, and that this is another piece of circumstantial evidence that the Crown relies upon in relation to Mr Fantakis and Mr Woods, that they wanted to disrupt the investigation of which she was the officer-in-charge." 1. In her summing up, the trial judge instructed the jury as follows: "The Crown also relies on what has been referred to, on occasion, as the evidence of intimidation. That is, some telephone conversations and listening device product, intercepted conversations in evidence before you, which, if you agree with what the Crown says is on those recordings, you might think demonstrates some level of antipathy or hostility to police, to Strike Force Flaggy, and in particular, to Detective Sergeant McGee, who was in charge of the operation investigating Mr Karmas' disappearance. The Crown points you to track 2 of exhibit CS. That is a recording of a conversation between Mr Woods and Mr Fantakis on 25 November 2011 in the evening of that day, where there was a discussion which - it is up to you, but it seems to have been about finding out where Detective Sergeant McGee lived, wanting to blind her, "officer in charge of Flaggy dead" and so on. Mr Woods was the person who said those things; Mr Fantakis was engaged in that conversation with him. Track 3 of exhibit CS, there is a reference which, depending on your conclusion, may be a reference to getting a gun, but you will recall there is a dispute between the parties as to whether it is "getting a gun", or "getting it done". It may be with the headphones you have, you will be able to work it out rather better than we could do so here in the courtroom. But if you conclude that that is a reference to getting a gun, then you may consider that that is evidence going to what the Crown says is contemplation of doing harm to Detective Sergeant McGee. You know from evidence from Detective Inspector [Doueihi] that he spoke to both Mr Fantakis and Mr Woods on the telephone, as it happened, about this suggestion that they wanted to harm Detective Sergeant McGee. He talked to them in July 2012. Each of them denied any such intent." 1. Her Honour later gave directions in relation to the use of this evidence as evidence of a consciousness of guilt in terms that are not the subject of complaint (although it was submitted her Honour's directions were not able to cure the prejudice resulting from the admission and use of the evidence). 2. Returning to the ruling on the admissibility of the evidence, her Honour, having referred to various authorities, [16] said, with respect, correctly: "In summary, for evidence of conduct to be admissible as evidence of consciousness of guilt, (1) The conduct must be deliberate; (2) It must relate to a material issue; and (3) It must be open to infer that the motivation for the conduct was comprehension of guilt of the charged offence." 1. The conduct in this case satisfied those three criteria. The applicant had deliberately engaged in a discussion which related to causing harm to Detective Sergeant McGee. That conduct went to a material issue; it was relevant to establish that the applicant had a level of antipathy towards the lead investigator and an interest in doing her harm, and in doing so, to disrupt the investigation. Finally, it was open to infer that the applicant was motivated by an awareness that the investigation may uncover evidence of his guilt of the crime charged. The evidence was therefore, as the trial judge found, relevant within the terms of s 55 of the Evidence Act. 2. Section 135 at the relevant time provided: 135 General discretion to exclude evidence The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 1. Section 137 provided: 137 Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant. 1. The trial judge (at [67]) noted, correctly in my view, that ss 135(b) and 135(c) had no application. The evidence was not, in the context of the trial, unduly lengthy. The evidence was relatively straightforward, albeit the Crown submitted some words could be made out while the applicant contended that other words were said, or at least that the Crown interpretation was not correct. While there was a dispute about the content, this did not make it misleading or confusing. 2. The real issue was whether the probative value of the evidence was substantially outweighed by "the danger that the evidence might be unfairly prejudicial" under s 135(a) or whether, pursuant to s 137, the "probative value [of the evidence was] outweighed by the danger of unfair prejudice to the defendant". It might be noted that the terms of s 135 are permissive ("may refuse to admit") while s 137 mandates exclusion ("must refuse to admit") and is limited to evidence adduced by the prosecutor in criminal proceedings. Thus, where objection is taken to evidence led by a co-accused, it is only s 135 that has application: Rogerson v R; McNamara v R. More significantly, s 137 does not require, as s 135 does, that the probative value be "substantially" outweighed. 3. Unfair prejudice arises where there is a danger the jury will use the evidence in a manner adverse to the accused and logically unconnected with the purpose of its tender: Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37. The probative value of the evidence lies in the purpose for which it was tendered. That probative value is to be assessed on the basis of the definition of the term in the Dictionary of the Evidence Act: "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". Having regard to the word "could", this is to be done without seeking to evaluate the reliability or credibility of the evidence: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14. 4. Before the trial judge, the applicant, joined by Mr Woods, submitted that the evidence was unfairly prejudicial on the following bases (as set out by the trial judge at [70]): "The prejudice which the accused argue will be unfairly occasioned to them is: (1) in the evidence being unduly focused upon by the jury in circumstances where the mental illness of the accused men provides an innocent explanation for the conduct but which, if revealed, could of itself lead to prejudice; (2) in a jury's distaste for the idea of two men discussing the violent death of a woman; (3) in the unpleasant nature of some of the language; and (4) in the evidence being used as tendency evidence, suggesting that the accused have a disposition to violence." 1. With respect to the first matter, the existence of a possible explanation consistent with innocence does not render the evidence inadmissible. The evidence in this matter was not "intractably neutral": see R v Ciantar (2006) 16 VR 26; [2006] VSCA 263; Edwards v R (2022) 107 NSWLR 301; [2022] NSWCCA 22. It was open to the jury to find the discussion was motivated by a concern that the participants' involvement in the crimes charged would be revealed. To the extent the evidence suggested, or could be explained by, the mental illness of the applicant and Mr Woods, her Honour had regard to this consideration. I find no error in her Honour's view (at [72]) that while "the jury could be prejudiced against the accused because of the suggestion (or reality) of their mental illnesses, [her Honour does] not regard the risk of that as a significant one". In the context of the trial as a whole, it is to be observed that the applicant himself relied on the existence of mental illness to explain his writings relied upon by the Crown as admissions. 2. As to matters (2), (3) and (4), they were all theoretical possibilities. Evidence of other criminal or discreditable conduct is regularly put, or sought to be put, before a jury. While at times the nature of such evidence will be such that its prejudicial quality outweighs its probative value, the nature of the evidence in this case was not such that any prejudice on this basis could not be addressed with appropriate directions to the jury. The probative value of the evidence was, in my view, not outweighed by the danger of the unfair prejudice relied on before the trial judge. 3. Before this Court the applicant added to the above bases on which unfair prejudice was said to exist. In his most recent written submissions, he relied on the following factors: "1. Had no connection to the elements of the offence; 2. Did not go towards negating any proposed defence; 3. Did not go to any material issue at trial; 4. Was evidence attached to a post offence that had yet to be adjudicated, charges that were eventually dismissed in 2021; 5. Obviously, evidence that could be misused as tendency evidence; 6. Insurmountable prejudice that could not be remedied by directions; 7. The evidence was misleading due to the poor quality of the recordings and that the conversation had been taken out of context ([s] 135(b)). 8. The makers of these conversation could not be compelled to be cross-examined to put the conversations into context (s135(b)); 9. Went against the presumption of innocence; 10. Destroyed the character of the applicant who was the main witness in his own case; a person who was deemed a person of good character by the Court." 1. Matters 1, 3, 5 and 6 have been dealt with above. As to matter 2, it is enough that the evidence went to proof of the Crown case. As to matter 4, it is not to the point that the evidence was the foundation of other charges or that those charges were dismissed. Quite apart from the need, in the context of proving a criminal offence, to prove a number of elements, the evidence was led here as part of a circumstantial case and did not have to be proved beyond reasonable doubt. Matter 7 has also been dealt with above. Alternative interpretations did not make it "misleading", at least to the extent that its probative value was substantially outweighed by this danger. Similarly, as to any potential alternative context. While it is true that the makers of the conversations (or more relevantly, Mr Woods, given the applicant could, and did, choose to give evidence) could not be compelled, in the context of the onus of proof, and the directions to be given with respect to the drawing of inferences, this was not such as to cause the probative value to be substantially outweighed by the danger that the evidence might be misleading. As to matter 9, the evidence led against an accused in a criminal prosecution is, with limited exceptions, led to displace the presumption of innocence. As to matter 10, this effectively replicates the complaint made at first instance with respect to the use of the evidence as tendency evidence, or otherwise evidence of engaging in discreditable conduct and has been dealt with above. 2. While the ground refers to Exhibits CS and CX, only the portion of Exhibit CS referred to above was the subject of objection over its admission as evidence of a consciousness of guilt. It is also noted that the timing of the recordings in Exhibit CX do not fit within the timeframe of the recordings identified in submissions in support of the ground (see at Applicant's Written Submissions, 3 May 2021 at [1319]). 3. Finally, before leaving this ground, the applicant raises an issue with respect to the authenticity of the recordings. The applicant, according to his submissions, was charged with an offence of intimidation of Detective Sergeant McGee, based on the recordings made between 24 and 29 November 2011. That charge was heard between 27 and 31 July 2020 at the Central Local Court. The applicant asserts that there is evidence, arising out of this hearing, that establishes that the discs received by the relevant section of the police for the purposes of being enhanced, were not, contrary to the assertion of Detective Sergeant McGee, the master copy. He seeks to rely on the evidence tendered in the Local Court together with the relevant transcript. 4. While the applicant seeks to raise this as fresh evidence, the issue was known to him prior to his trial. It was raised by him on the bail application in 2016. In his judgment, published as A1 v R; A2 v R [2016] NSWSC 1288, (A1 being a pseudonym for the applicant), Garling J said (at [95]-96]): "[95] … A1, in his cross-examination of Sergeant McGee, established a discrepancy between statements of various police officers with respect to a DVD containing the product of a listening device which lawfully recorded conversations in which A1 was involved. It is readily apparent that there is inconsistency between the statements as to whether there was one or three discs containing the relevant recording. [96] However, this challenge did not address itself to a more fundamental question, namely whether the recording contained the voices that the police contended for and whether it contained the contents asserted by the police. There was no challenge to these central facts. There is no reason, from this cross-examination, to doubt the integrity of the recordings." 1. Having regard to the applicant's awareness of the issue prior to trial, the evidence is not relevantly "fresh" evidence: see R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63]. There was no challenge at trial as to the identity of the participants or the veracity of the recording, a matter as to which the applicant, given he was a participant, was in a position to give instructions. The applicant gave evidence and did not suggest he had not participated in the conversations attributed to him. In these circumstances admission of the evidence is not capable of establishing a miscarriage of justice in the relevant sense: Mickelberg v The Queen (1989) 167 CLR 259; [1989] HCA 35. The evidence sought to now be relied upon is not admissible on the appeal. 2. For the reasons set out above, ground 9 is not made out. To the extent that leave is required under s 5(1) of the Criminal Appeal Act, I would grant leave but reject ground 9. Remaining Grounds 1. With respect to the remaining grounds, I agree with Ward ACJ. ********** Endnotes 1. Re M'Naghten's Case (1843) 8 ER 718 at 722. 2. R v Kemp [1957] 1 QB 399. 3. Mental Health and Cognitive Impairment Forensic Provisions Act, s 30. 4. Crimes Act 1900 (NSW), s 23A. 5. Ibid, s 23A(4). 6. Tillmanns Butcheries v Australasian Meat Industry Employees Union (1979) 42 FLR 331 at 348 (Deane J) (as a member of a Full Court of the Federal Court of Australia). 7. See Tillmans Butcheries, supra; O'Brien Glass Industries Ltd v Cool and Sons Pty Ltd t/a Wagga Windscreen Service (1983) 77 FLR 441. 8. Bonnard v London General Omnibus (1921) 38 RPC 1; Re Bonny [1986] 2 Qd.R 80; Re Migliorini; ex parte Silk Brothers (1974) 22 FLR 491; Marc A Hammond Pty Ltd v Papa Carmine Pty Ltd (1977) 28 FLR 160; Palser v Grinling [1948] A.C. 291; Chatsworth Investments Ltd v Amoco (UK) Ltd [1968] 1 Ch 665; Re Burford; Burford v Clifford [1932] 2 Ch 122; A.E.Terry's Motors Ltd v Rinder [1948] SASR 167; Commissioner for Superannuation v Scott (1987) 13 FCR 404. 9. Crimes Act 1900, s 23A(2). 10. Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Jones v Sutherland Shire Council [1979] 2 NSWLR 206; Fabre v Arenales (1992) 27 NSWLR 437. 11. Fabre v Arenales, supra, at 455. 12. Carr v Baker [1936] SR (NSW) 301 at 306-307. 13. The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [47] and [62] (French CJ, Kiefel, Bell, Keane and Gordon JJ). 14. Ibid, at [62], citing Pemble v The Queen (1971) 124 CLR 107 at 117. 15. Ibid. 16. Her Honour referred to Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63; R v Sutton (1986) 5 NSWLR 697; R v Egan (Court of Criminal Appeal (NSW), 7 July 1997, unrep); R v MMJ (2006) 166 A Crim R 501; [2006] VSCA 226; R v Nguyen (2001) 118 A Crim R 479; [2001] VSCA 1; DN v R (2016) 92 NSWLR 600; [2016] NSWCCA 252; R v Smit & Ors [2004] NSWCCA 409; Kuehne v R; Humphries M v R; Humphries A v R [2012] NSWCCA 270. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2023