New South Wales Court of Criminal Appeal CITATION : R v Spathis; R v Patsalis [2001] NSWCCA 476 FILE NUMBER(S) : CCA 60093/00; 60139/00 HEARING DATE(S) : 30/07/01, 31/07/01 JUDGMENT DATE : 29 November 2001 PARTIES : Regina v Alexios Spathis; Regina v Michael Patsalis JUDGMENT OF : Heydon JA at 1; Carruthers AJ at 201; Smart AJ at 446 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70200/97; 70002/97 LOWER COURT JUDICIAL Kirby J OFFICER : Crown: Mr G E Smith COUNSEL : Spathis: Mr A J Bellanto QC/Mr P Lowe Patsalis: In person SOLICITORS : Crown: S E O'Connor Spathis: Patricia White & Associates CATCHWORDS : Criminal Law - Murder - Appeal - Conviction - Conduct of legal practitioners - Incompetent representation - Whether legal representatives at trial were incompetent - Whether counsel should have led further character evidence - Whether counsel should have applied for separate trials of co-accused - Whether incompetence caused prejudice to appellant creating miscarriage of justice - Criminal Law - Murder - Appeal - Application to adduce further evidence on appeal - Whether "fresh evidence" - Whether further evidence likely to lead to new trial - Whether further evidence raised possibility of miscarriage of justice - Criminal Law - Murder - Appeal - Judicial directions to jury - Whether misdirections - Whether direction necessary that jury members must all be satisfied on at least one basis of liability - Where one indictment count of murder but alternate bases of liability at trial including felony murder and mens rea murder - Whether manslaughter verdict ought to have been left open to jury - Directions re elements of felony murder - Directions re use of relationship evidence - Directions re lies of accused and consciousness of guilt - Directions re evidence from deceased witness - Criminal Law - Murder - Appeal - Evidence - Whether trial judge erred in permitting Crown to cross-examine a witness as unfavourable - Evidence Act 1995, s 38(1)(c) - Whether trial judge erred in failing to exclude evidence of lies as "admissions" - Crimes Act 1990 (NSW), s 424A. - Criminal Law - Murder - Appeal - Joint-trial - Whether trial judge ought to have ordered separate trial of co-accused - Criminal Law - Murder - Appeal - Sentence - Whether sentence excessive - Whether lack of parity between sentences imposed upon co-offenders - Whether proper consideration by sentencing judge of assistance given to police by appellant - D Crimes Act 1900 Criminal Appeal Act 1912 LEGISLATION CITED : Criminal Procedure Act 1986 Evidence Act 1995 (NSW) Evidence Act 1995 (Cth) Prevention of Fraud (Investments) Act 1958 Adam v The Queen [2001] HCA 57 Barlow v The Queen (1997) 188 CLR 1 R v Birks (1990) 19 NSWLR 677 R v Boreman and Ors [2000] 1 All ER 307 R v Bowden (1981) 7 A Crim R 378 R v Kevin Brown (1983) 79 Cr App R 115 Browne v Dunn (1893) 6 R 67 Bullard v The Queen [1975] AC 635 R v Burke [1983] 2 NSWLR 93 R v Carberry [1994] Crim LR 446 R v Connelly [1991] 2 Qd R 171 R v Crabbe (1985) 156 CLR 464 R v Cramp (1999) 110 A Crim R 198 R v Drummond and Domican (No 2) (1990) 46 A Crim R 408 R v Clarke; Ex parte Attorney-General of Queensland [1999] QCA 438 Edwards v The Queen (1993) 178 CLR 193 R v Foley (1998) 105 A Crim R 1 Gallagher v R (1986) 160 CLR 392 R v Giannetto [1997] 1 Cr App R 1 Gilbert v The Queen (2000) 74 ALJR 676 Gipp v The Queen (1998) 194 CLR 106 R v GH (2000) 105 FCR 419 R v Hamilton (1983) 68 A Crim R 298 Harriman v The Queen (1989) 167 CLR 590 R v Hauser (1982) 6 A Crim R 68 Henriques v The Queen [1991] 1 WLR 242 R v Henry (1992) 28 NSWLR 348 CASES CITED: R v Hitchins [1983] 3 NSWLR 318 R v Horton (1998) 45 NSWLR 426 R v Hunter and Sharah [1999] NSWCCA 5 R v Johns [1978] 1 NSWLR 282 Leivers & Ballinger (1998) 101 A Crim R 175 R v Mansour (unreported, NSWSC, 19 November 1996) R v Mendham & Foster (1993) 71 A Crim R 382 Mickelberg v R (1989) 167 CLR 259 Moss v Brown [1979] 1 NSWLR 114 R v Munro (1981) 4 A Crim R 67 Osland v The Queen (1998) 197 CLR 333 Palmer v R (1998) 193 CLR 1 Pemble v The Queen (1971) 124 CLR 107 R v Phan [2001] NSWCCA 29 Ratten v R (1974) 131 CLR 510 R v Reed [1999] NSWCCA 258 R v Rees [2001] NSWCCA 23 Ryan v The Queen (1966-1967) 121 CLR 205 R v Ajiit Sing Sat-Bhambra (1989) 88 Cr App R 55 R v Schneidas [1981] 2 NSWLR 713 R v Serratore (1999) 48 NSWLR 101 R v Sharah (1992) 30 NSWLR 292 R v Stewart and Schofield [1995] 1 Cr App R 441 R v Taouk (unreported, NSWCCA, 17 December 1992) R v Thatcher (1987) 39 DLR (4th) 275 R v Williamson [2000] 1 VR 58 Wilson v The Queen (1970) 123 CLR 334 Wilson v The Queen (1992) 174 CLR 313 R v Zaidi (1991) 57 A Crim R 189 DECISION : See paras 199 and 200 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60093/00 60139/00 HEYDON JA CARRUTHERS AJ SMART AJ 29 November 2001 REGINA v Alexios SPATHIS REGINA v Michael PATSALIS Criminal Law – Murder – Appeal - Conviction – Conduct of legal practitioners – Incompetent representation - Whether legal representatives at trial were incompetent – Whether counsel should have led further character evidence - Whether counsel should have applied for separate trials of co-accused - Whether incompetence caused prejudice to appellant creating miscarriage of justice Criminal Law – Murder – Appeal – Application to adduce further evidence on appeal – Whether "fresh evidence" – Whether further evidence likely to lead to new trial – Whether further evidence raised possibility of miscarriage of justice Criminal Law – Murder – Appeal – Judicial directions to jury – Whether misdirections – Whether direction necessary that jury members must all be satisfied on at least one basis of liability – Where one indictment count of murder but alternate bases of liability at trial including felony murder and mens rea murder – Whether manslaughter verdict ought to have been left open to jury – Directions re elements of felony murder – Directions re use of relationship evidence – Directions re lies of accused and consciousness of guilt – Directions re evidence from deceased witness Criminal Law – Murder – Appeal – Evidence – Whether trial judge erred in permitting Crown to cross-examine a witness as unfavourable – Evidence Act 1995, s 38(1)(c) – Whether trial judge erred in failing to exclude evidence of lies as "admissions" – Crimes Act 1990 (NSW), s 424A. Criminal Law – Murder – Appeal – Joint-trial – Whether trial judge ought to have ordered separate trial of co-accused Criminal Law – Murder – Appeal - Sentence – Whether sentence excessive – Whether lack of parity between sentences imposed upon co-offenders – Whether proper consideration by sentencing judge of assistance given to police by appellant On 10 June 1999 Michael Patsalis and Alexios Spathis (the appellants) were charged with the murder of Klaus Peter Ludwig (the victim). At trial the Crown formulated its case on alternative bases including felony murder and mens rea murder. After a trial before a judge and jury, both appellants were convicted of murder. Patsalis had two different counsel during the trial, both of whom he dismissed. Patsalis was sentenced to 21 years and 6 months of penal servitude with a minimum term of 16 years and an additional term of 5 years and 6 months. Spathis was sentenced to 19 years of penal servitude with a minimum term of 14 years and an additional term of 5 years. Both Patsalis and Spathis appealed against their convictions and applied for leave to appeal against their sentences. Only Patsalis advanced arguments in relation to sentence. Held by Heydon JA (Carruthers and Smart AJJ concurring): 1. Dismissing Patsalis' appeal against conviction: A. The factual issues to which Patsalis' complaints on appeal related, however decided, would not affect the Crown case as proved before the jury and as set out in the trial judge's remarks on sentence. B. There was no direct evidence of many of the factual allegations made by Patsalis against his lawyers. These allegations could be supported, if at all, only by inferences from the transcript and the trial record generally. Nothing in Patsalis' challenge to the performance of his lawyers demonstrated that they provided him with less than professional and capable service. C. Although neither of Patsalis' counsel had a junior, this did not create a miscarriage of justice. None of the other counsel at the trial had a junior, and barristers without juniors conduct many serious criminal trials. D. The two applications made by Patsalis to rely on further evidence on the appeal, should be refused: i. The first matter (a statement from a travel consultant relating to a conversation with Mrs Spathis) was not "fresh evidence" because either it was known to Patsalis or to his lawyers at the time of the trial, or it ought to have been known to them. Even if it was "fresh evidence" it went to credit and is unlikely to lead to a new trial. R v Zaidi (1991) 57 A Crim R 189, referred to. It concerned peripheral and marginal issues and lacked sufficient strength to raise the possibility of a miscarriage of justice within s 6(1) of the Criminal Appeal Act 1912. Gallagher v R (1986) 160 CLR 392, R v Henry (1992) 28 NSWLR 348, Ratten v R (1974) 131 CLR 510, Mickelberg v R (1989) 167 CLR 259, and R v Drummond and Domican (No 2) (1990) 46 A Crim R 408, referred to. ii. The second matter (police computer records), would not have affected the admissibility at trial of Exhibit G (a statement written by Patsalis and handed to police). E. The grounds of appeal advanced by Spathis, all of which were adopted by Patsalis, were rejected for the same reasons as those for which they were rejected in relation to Spathis (see below). 2. Dismissing Patsalis' application for leave to appeal against sentence: A. The sentence imposed upon Patsalis was not too severe for such a serious crime and there was no lack of parity between Patsalis' sentence and Spathis' sentence. Although the Crown did not submit that there was any difference in the culpability of each accused, the trial judge was entitled to reach his own view as to relative culpability. There was no convincing reason to doubt the trial judge's factual findings, which were based upon his impressions of the credibility of witnesses and what was necessarily implicit within the jury verdict. B. The trial judge did not err in deciding not to discount Patsalis' sentence in relation to the assistance Patsalis gave to the police. The trial judge was entitled to conclude that Patsalis assisted police in order to incriminate Spathis, rather than to help police solve the crime. The trial judge was also entitled to conclude that the account that Patsalis gave to the police was untruthful, incomplete and unreliable. Held by Carruthers AJ (Heydon JA and Smart AJ concurring): 1. Dismissing Spathis' appeal against conviction: A. The Crown's failure to include felony murder as a separate count to mens rea murder in the indictment, did not cause Spathis unfairness to such an extent that his conviction should be set aside. It was open to the Crown to include the felony murder alternative in the one comprehensive murder count. The trial judge was not required to direct the jury that they must all be satisfied on at least one basis of liability. In this case, the alternate bases of liability did not involve materially different issues or consequences. Leivers & Ballinger (1998) 101 A Crim R 175, applied. Discussion of relevant cases. B. The trial judge did not err in failing to direct the jury that a manslaughter verdict was open. In order for manslaughter to be left to the jury, there must be an evidentiary basis for it. The Crown excluded beyond reasonable doubt all reasonable views of the facts that could be consistent with innocence of murder. The jury's verdicts indicate that they were satisfied that either Patsalis or Spathis stabbed the victim. Manslaughter could not have arisen in relation to Spathis on either hypothesis. Gilbert v The Queen (2000) 74 ALJR 676, distinguished. Discussion of relevant cases. C. The trial judge did not err in his directions to the jury as to the elements of felony murder within s 18(1) of the Crimes Act 1900. i. It was not necessary for the jury to be directed that for Spathis to be guilty of felony murder, he must have been aware that death or grievous bodily harm was probable, rather than merely possible. The Queen v Crabbe (1985) 156 CLR 464, distinguished (as a case with only one accused and concerning reckless indifference to human life rather than felony murder). ii. It was not necessary for the jury to be directed that the death of the victim must be a foreseeable result of the underlying felony. R v Munro (1981) 4 A Crim R 67, applied. The critical question is whether the act causing death was within the contemplation of the accessory in his role as a principal in the original criminal enterprise. D. The trial judge did not misdirect the jury as to the use of relationship evidence (i.e.. Exhibit G - a statement written by Patsalis and handed to police). The evidence was not relied on by the Crown as propensity or tendency evidence. Rather, it was relationship evidence from which relevant inferences could be logically and reasonably drawn. E. The trial judge did not err in permitting the Crown to cross- examine Mrs Spathis as an unfavourable witness in its case pursuant to s 38(1)(c) of the Evidence Act 1995. The Crown did not attempt to exploit the provisions in order to rectify damage done in cross-examination. R v Mansour (unreported, NSWSC, 19 November 1996) and Adam v The Queen [2001] HCA 57, referred to. F. The trial judge did not err in his directions to the jury as to Spathis' lies in relation to proof of the Crown case against him. i. It was not necessary for the jury to be directed that the lies were relevant only to Spathis' credit, since the Crown was clearly relying upon the lies as going directly to a consciousness of guilt of the crime of murder. Osland v The Queen (1998) 197 CLR 333, distinguished. ii. The trial judge made it sufficiently clear to the jury that Spathis may have told the lies to avoid implication in offences other than murder. G. The trial was not rendered unfair by reason of the trial judge's failure to grant a separate trial in circumstances where Patsalis had decided to represent himself. There was not sufficient cause for concern that a potential miscarriage of justice may have occurred, and Spathis' trial counsel did not apply for discharge of the jury or separate trials on this ground. H. The failure by Spathis' counsel to lead further evidence of Spathis' good character and to make applications for separate trials did not render Spathis' trial unfair. i. Considering the amount of evidence and the length of the trial, Spathis' counsel was entitled to decide not to call further character evidence, and was not "flagrantly incompetent". R v Birks (1990) 19 NSWLR 677, R v Hamilton (1983) 68 A Crim R 298 and R v Hunter and Sharah [1999] NSWCCA 5, distinguished. ii. The overriding factor was that this was quintessentially a case for a joint trial. The interests of the Crown in having a joint trial must be considered in this regard. Moss v Brown [1979] 1 NSWLR 114, referred to. I. The trial judge did not err by failing to exclude evidence of Spathis' lies to arresting police officers as "admissions" under s 424A of the Crimes Act 1900, since there was no objection to their being tendered. R v Reed [1999] NSWCCA 258, applied. The Queen v GH (2000) 105 FCR 419 , referred to. J. The trial judge did not err in relation to the warnings he gave to the jury as to the use of deposition evidence (containing hearsay) from a deceased witness. K. In Obiter dicta: Discussion of errors in trial judge's directions to the jury. O R D E R S Patsalis' appeal: 1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is dismissed. Spathis' appeal: 1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is dismissed. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL 60093/00 60139/00 HEYDON JA CARRUTHERS AJ SMART AJ 29 November 2001 REGINA v Alexios SPATHIS REGINA v Michael PATSALIS JUDGMENT 1 HEYDON JA: After a trial lasting 55 days before Kirby J and a jury, Michael Patsalis and Alexios Spathis were on 24 September 1999 convicted of murdering Klaus Peter Ludwig on 11 April 1996 at Botany. On 23 February 2000 Patsalis was sentenced to penal servitude for 21 years and 6 months, consisting of a minimum term of 16 years and an additional term of 5 years and 6 months. Spathis was sentenced to penal servitude for 19 years, consisting of a minimum term of 14 years and an additional term of 5 years. 2 Each has appealed against his conviction and sentence, though only Patsalis advanced arguments in relation to sentence. Accordingly Spathis' application for leave to appeal against sentence will be dismissed. These reasons deal with Patsalis' appeal. Background 3 The background circumstances are important in understanding the grounds of Patsalis' appeal. They are also important in evaluating the force of various arguments he advanced to the effect that there had been a miscarriage of justice because those arguments must be assessed in the light of the very strong Crown case. It is convenient to foreshadow a general conclusion: the factual issues to which Patsalis' complaints go, however they were to be decided, would not affect the Crown case as proved before the jury and as set out in the trial judge's remarks on sentence. "Mr Patsalis and Mr Spathis each provided lengthy interviews to the police. Each gave evidence at the trial. Neither gave evidence on sentence. In some important respects their accounts correspond. In others they differ markedly. I will begin by identifying the common ground. The Common Ground Mr Patsalis and Mr Spathis were friends, although not of long standing. Mr Spathis had a business serving food at the Three Swallows Hotel. Mr Patsalis was a patron of that hotel. They shared certain interests. In the year or so before Mr Ludwig's murder, Mr Spathis advanced $16,500 to Mr Patsalis by way of loan. They gave strikingly different accounts of the circumstances in which the debt accumulated. It was, however, acknowledged by Mr Patsalis that certain advances had been made in circumstances where he had deceived Mr Spathis. The money was used for gambling, and lost. Mr Patsalis was not in a position to repay the loan. And so the friendship soured. It was in the context of that debt, that Mr Patsalis became acquainted with Mr Ludwig. Mr Ludwig had a small business restocking cigarette vending machines. One such machine was located in a small coffee house at Restwell Parade, Bankstown. The coffee house was frequented mainly by persons of Greek origin. They included Mr Patsalis. Mr Patsalis was attracted by a card game in which patrons played for money. Mr Patsalis met Mr Ludwig. He discussed with him the prospect of obtaining cheap cigarettes, which was a matter of interest to Mr Ludwig. Although Mr Patsalis may describe it otherwise, I am satisfied that he persuaded Mr Ludwig that he was able to arrange the supply of cheap cigarettes through contacts he had. Mr Ludwig, on the evening he met his death, believed that he was travelling to a warehouse at Botany where he would exchange the cash he was carrying ($58,500) for a large consignment of contraband cigarettes. The accounts given by Mr Patsalis and Mr Spathis as to the events before and after the stabbing of Mr Ludwig were not remarkably different. They met at 3.00pm at Mr Patsalis' flat. Thereafter a number of purchases were made. There were two pairs of gloves, two knives, a tarpaulin, and one tin of petrol. Mr Patsalis and Mr Spathis differed from each other as to the circumstances in which the purchases were made, and their knowledge of the items purchased. They both denied having any appreciation of the sinister purpose of these items, as revealed by the events of that evening. I will return to this issue shortly. Arrangements were thereafter made to meet Mr Ludwig at Bankstown. Two vehicles were driven from Bankstown to the Marrickville RSL. Mr Spathis drove his car [POZ 344]. Mr Patsalis was a passenger in the truck driven by Mr Ludwig. It was common ground that Mr Spathis, having left first, doubled back in order to follow the truck, and thereby ensure that the truck was not being followed. This fact was communicated to Mr Patsalis. Both, therefore, knew that Mr Ludwig was alone. Once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany. At some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Mr Patsalis and Mr Spathis each blamed the other for the stabbing. Each asserted ignorance of the sinister purpose of the other. Both acknowledged that money was removed from Mr Ludwig's jacket after the stabbing by Mr Spathis. Mr Spathis asserted (and Mr Patsalis denied) that he did so at the direction of Mr Patsalis. Mr Spathis drove the truck back to Marrickville with Mr Patsalis as a passenger. Mr Ludwig's body remained in the cabin. Mr Patsalis then alighted. He thereafter drove Mr Spathis' vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day. The two vehicles were driven to Terrey Hills, although by a circuitous route. Each asserted the other led the way. At Terrey Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight. There were differences as to who removed the money, and who set fire to the body. The vehicles then left the scene, although in circumstances which were somewhat chaotic. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles which were in the area. The vehicles proceeded to Mr Patsalis' flat at Homebush. Mr Spathis drove the truck, whilst Mr Patsalis remained in Mr Spathis' car. Having met at Homebush, the two vehicles were then driven to Chester Hill, where the truck was set alight. Mr Patsalis placed his bloodstained clothes inside the truck, so that they were also destroyed. The Crown Case The Crown contended, and the jury accepted, that both Mr Patsalis and Mr Spathis were responsible for Mr Ludwig's murder. The Crown case was put in three ways. · First, a joint attack by both accused. Two knives had been purchased. Mr Patsalis and Mr Spathis were arranged on either side of Mr Ludwig. The wounds were consistent with both knives (or either knife), although it was not possible to say, simply based upon the wounds, whether they came from the left or the right, or from both directions. · Secondly, a joint criminal enterprise to either rob and/or murder Mr Ludwig. If the agreement was to rob, it was the Crown case that the accused who did not do the stabbing was aware of the possibility (amounting to a substantial risk) that, in the course of the robbery, his co-accused may intentionally kill, or cause grievous bodily harm, to the person being robbed, Mr Ludwig. · The third basis upon which the Crown suggested that both accused were responsible, was felony murder, either as the person who stabbed the deceased, or '… being aware that the co-accused was armed with a knife, the accused was aware that there was a substantial risk that his co-accused might immediately before, during, or immediately after the commission of the robbery, stab (the victim) seriously injuring him or killing him.' … The Gravity of the Crime By any standard, this was a cold-blooded and shocking crime. The deceased was lured into a trap. He was alone. There was no suggestion that he was armed. He was out-numbered. He was taken at night to a deserted location where he was attacked. He was repeatedly stabbed, such that he died almost at once. Counsel for Mr Spathis submitted that the wounds suggested frenzy, and were consistent with panic. Certainly, there were multiple wounds, front and back, and to the head. The victim was given no chance. There is nothing in the evidence which suggests panic to my mind. Mr Ludwig was deliberately slain where he sat, between Mr Patsalis and Mr Spathis. Premeditation The Crown asserts that the crime was premeditated, and that is a circumstance of aggravation. Counsel for Mr Spathis sought to refine the issue by asking what crime was planned? It was said, on behalf of Mr Spathis, that the Court should not find beyond reasonable doubt that there was premeditation of murder. Rather, the crime in contemplation, in respect of which there was planning, was robbery, where one at least of those involved was carrying a weapon. Although the same submissions were not made on behalf of Mr Patsalis, the same issue arises. It requires an examination of the events which preceded the stabbing. It was Mr Patsalis who befriended Mr Ludwig. He sought to gain his confidence. They met a number of times at the Restwell Parade coffee shop, and at the Bankstown Sports Club. Mr Patsalis gave evidence that, on Saturday 6 March 1996 (five days before the murder), he discussed at length the purchase by Mr Ludwig of contraband cigarettes for cash. I have no doubt that he persuaded Mr Ludwig to become involved. He did so, knowing that there were no cigarettes on offer. Mr Patsalis' purpose, rather, was crime. I will leave to one side, for the moment, the nature of that crime. Certainly, his purpose included robbing Mr Ludwig of the cash which he was required to bring to a meeting which was then organised. Mr Patsalis gave an account to the jury which involved Mr John Spathis, an uncle of Mr Alexios Spathis. He said that he believed, as Mr Ludwig believed, that Mr John Spathis had available a large consignment of contraband cigarettes. He described discussions with Mr John Spathis, before the murder, concerning such cigarettes. Mr John Spathis, it should be said, had a small supermarket at Ashfield. He stocked, amongst other things, cigarettes. Mr Patsalis said that Mr John Spathis had told him that he had spoken to Mr Ludwig. It is reasonable to suppose that the jury rejected Mr Patsalis' account. It is hardly surprising that they should have done so. It was implausible. In a lengthy interview to the police upon his arrest, Mr Patsalis made a passing reference to Mr Alexios Spathis' uncle. He did not include the detail of the matters which were to emerge as his 'defence'. His account, moreover, was not supported by the text of the letter Mr Ludwig left behind, written the day before his murder (Exhibit AX). I repeat, that I have no doubt that Mr Patsalis knew full well that there were no cigarettes on offer, and that he was luring Mr Ludwig into a trap. I have made reference already to the purchases which were made on the afternoon of 11 April 1996, the day Mr Ludwig was murdered. The meeting with Mr Ludwig was arranged for 5.00 pm. As it happened, he was late. He arrived shortly after 5.30 pm. Between 3.45 pm and 4.38 pm a number of items were purchased. The times of each purchase can be fixed with precision by reference to the computer print-out of the cash registers within the stores from which the purchases were made. The items purchased were as follows: · At 3.35 pm from BBC Hardware, Yagoona, two pairs of gloves, and one blue tarpaulin/ground sheet. · Between 4.00 pm and 4.20 pm, a can of petrol from a Mobil service station at Yagoona. · At 4.38 pm at K-Mart, Bankstown Square, two knives (one with a 7 inch blade and the other with a 9 inch blade), each within a protective knife sharpener, which was like a scabbard. It may be helpful if I first state the position of each prisoner in respect of these purchases. Mr Patsalis acknowledged that he made the first purchase (at 3.45 pm). Mr Spathis was not present. Mr Spathis denied knowledge of the gloves. He saw the blue tarpaulin, but thought nothing of it. Mr Patsalis also made the purchase of the can of petrol. He did so on the instructions of Mr Spathis. Mr Spathis acknowledged having given those instructions. They were given because he noticed his car was running low on fuel. Mr Spathis said that he did not enter the petrol station because he was aware that petrol stations have video surveillance. He had no wish to be filmed in circumstances where he was assisting in a transaction which involved contraband cigarettes. The petrol was in a 5 litre tin. It was put in the boot. It was not added to the tank. Mr Patsalis was present when the knives were purchased from K-Mart. He insisted that they were purchased by Mr Spathis. He was sufficiently concerned to enquire of Mr Spathis as to his purpose. He was told that they were required for Mr Spathis' business at the hotel. That explanation satisfied him. Mr Spathis denied having purchased the knives. He waited in the car park at K-Mart whilst Mr Patsalis made the purchases. When Mr Patsalis returned to the car, he was carrying a shopping bag. Mr Spathis asserted that he was not aware of the contents of the shopping bag, namely the knives, before the stabbing. Mr Patsalis therefore knew of each purchase; the two pairs of gloves, the tarpaulin, the petrol and the knives. He said he had no appreciation of the purpose of these items, and specifically their connection with the crime which was about to occur. The jury verdict may be taken as a rejection of that assertion, at least in respect of the knives. The jury was directed that it was an essential circumstance in the Crown case that each accused should have known of the knives, or at least one knife, and should have been aware of the possibility (amounting to a substantial risk) that his co-accused may use the knife to rob Mr Ludwig or cause him serious harm. The Crown attached considerable significance to the purchases made that afternoon. The purchase of two knives and two pairs of gloves pointed to a joint criminal enterprise between Mr Patsalis and Mr Spathis, in its submission. The goods purchased, moreover, defined the nature and scope of the enterprise according to the Crown. They were the tools for the night's work. The knives were to attack Mr Ludwig. The gloves were to avoid fingerprints. The petrol was to burn the body and the truck. The tarpaulin was ultimately used that evening to protect Mr Spathis' car. Mr Patsalis' trousers were soaked in blood. The tarpaulin prevented the transfer of that blood to the car seat. It is possible that the tarpaulin may have been intended to wrap Mr Ludwig's body. I am satisfied that Mr Patsalis had these purposes in mind, and that there was, in his case, premeditation of murder. Mr Spathis is in a slightly different position. On his own account, he was aware of the tarpaulin, and the petrol. I accept that Mr Spathis was not present when the knives were purchased from K-Mart. However, by the jury verdict, he must be taken to have been aware of at least one knife, and the purpose of that knife, namely, to rob or cause serious harm to Mr Ludwig. It was urged on behalf of Mr Spathis that I should not find (beyond reasonable doubt) premeditation of murder. If one confined oneself to matters which Mr Spathis acknowledges he knew, or which he can be taken to have known, by reason of the verdict, that may be so. However, in drawing the appropriate inference, I do not believe that the available material is so limited. Mr Patsalis gave the following account to the police of an episode at the Marrickville RSL. It provides insight into the role of Mr Spathis on this evening. Mr Spathis, having parked his car at Marrickville, then joined Mr Ludwig and Mr Patsalis at the truck. According to Mr Patsalis, there was an argument about who should drive the truck. Mr Patsalis, in his interview to the police the day after the murder, described what happened in these words: 'Then what occurs was – and they had a bit of a dispute about this – was who should drive the truck. Alex wanted to drive the truck, Peter wanted to drive the truck. Alex said to him, 'Listen, I want to make sure that we're not being followed.' And he goes to him, 'Crikey, he takes a lot of precautions', something along those lines. He goes, 'I'm, the one who should be worried.' Alex said to him, 'Well, listen, I know the way and it's better for me to drive because that way I don't have to tell you to turn right and turn left at the last moment and you miss a turn,' and so he convinced Peter to allow him to drive. And Peter made a big fuss over that if Alex was to have an accident that Alex would pay for the damage.' Mr Spathis denied that account. However, I have no doubt that it occurred. Mr Ludwig had hired the vehicle from Thrifty Rent-A-Car. The Hiring Agreement included a clause (Exhibit W), which stated 'No other driver permitted'. Mr Patsalis' account is consistent with the Hiring Agreement, and the picture of Mr Ludwig which emerged from the evidence. I infer that it was important to the arrangements between Mr Patsalis and Mr Spathis that evening that Mr Spathis should drive the truck. Counsel submitted that each of these matters was consistent with the possibility that the common purpose was robbery (with possible wounding), rather than murder. The petrol may have been purchased to burn the truck. Mr Ludwig, when stripped of his money, could hardly complain to the police. He had chosen to embark upon what he knew was an illegal enterprise. However, I am not persuaded. I accept in the case of Mr Spathis, as I did in the case of Mr Patsalis, that there was premeditation of murder. I do accept, nonetheless, that Mr Patsalis was the dominant party in the enterprise. It was Mr Patsalis who planned the crime. It was Mr Patsalis who seduced Mr Ludwig into believing that there were cigarettes on offer. It was Mr Patsalis who made the purchases. Mr Patsalis persuaded Mr Spathis to assist him. Mr Spathis, weakly, agreed to do so. … Mr Patsalis before these events, was a compulsive gambler. His gambling lies at the heart of his involvement in this crime. He is described by Dr Lisa Brown, psychiatrist, as a pathological gambler." 4 In discussing a submission by Patsalis that he should be given a discount for assisting the police, the trial judge said: "There is no question in my mind that Mr Patsalis recognised that the crime, in its execution, had gone badly wrong. It appears that Mr Spathis may have panicked when at Terrey Hills, so that Mr Ludwig's body was left by the side of a suburban road, where it was then set alight. However it came about, Mr Patsalis appreciated that they had been seen. I accept the account of Mr Spathis, given to the police the day following the murder, where he attributed to Mr Patsalis these words, spoken as they were about to part company: 'He said, 'Don't say anything ever, you know, even if, even if, you know, you get caught, you know, if, if your name, 'cause they seen your car.' Either shortly before, or shortly after, saying these words, Mr Patsalis determined that he would go to the police. He went to the Hilton Hotel at 4.00 am the morning following the murder. He began to write out his story. He presented himself at the Bankstown Police Station shortly after 6.00 pm. His motive was entirely self interest. It had nothing to do with assisting the authorities to solve the crime. It was a pre-emptive strike against Mr Spathis. Nonetheless, Mr Patsalis provided the police with important information concerning Mr Spathis, and the crime. Because it served his purpose (in that he was less likely to slip up), he substantially related events as they occurred. However, he omitted entirely his role in these events. The information provided by Mr Patsalis could hardly be described as full and frank. It did, however, contribute to the success of the prosecution against Mr Spathis, and also, ironically, against Mr Patsalis himself. In blaming Mr Spathis, Mr Patsalis unwittingly incriminated himself." The nature of Patsalis' submissions 5 Patsalis was not represented on the hearing of the appeal. His oral submissions were relatively brief. Most of his submissions were advanced in written documents which he had prepared with little assistance. They were supplied in five parts. Two were supplied before oral argument, one late on the first day of the appeal, and the others after the court had reserved judgment. The first consisted of 93 pages (principally attacking Mr MacGregor QC), to which were attached a further 36 pages (principally attacking Mr Amor-Smith). The second consisted of 10 pages (principally dealing with the failure of both counsel to secure a separate trial). The third consisted of 56 pages (principally dealing with attempts to tender further evidence on the appeal and with Mr Amor-Smith's alleged incompetence). The fourth (97 pages) repeated and developed various earlier submissions. The fifth (24 pages) dealt with sentence. The submissions annexed a substantial amount of evidentiary material and referred to a great deal more. Not surprisingly, the Crown felt obliged to respond to these bulky submissions at some length. Because they are repetitive and ill-organised, it is far from easy to reduce Patsalis' submissions to order, summarise them coherently and consider them in a concise way. Spathis' grounds of appeal 6 Patsalis adopted all the grounds of appeal advanced by Spathis. Those grounds are rejected for the reasons given by Carruthers AJ in relation to Spathis' appeal. Incompetence of Patsalis' lawyers: background 7 Patsalis expressed the initial grounds of his appeal against conviction as follows. "In support of the notice of appeal which was previously lodged the appellant agitates the following grounds of appeal: 1. Procedure – Defence counsel fails to put case to Crown witnesses – form of the 'Browne v Dunn' direction (UK Browne v Dunn (1893) 6 R 67). A. Evidence – Witnesses – Cross-examination – Need to cross-examine on case on which reliance to be placed – Rule in Browne v Dunn – Criminal Proceedings – Part of defence case not put – Application to criminal proceedings – Consequences of failure to observe rule – Inferences to be drawn – Caution in directing on. B. Criminal Law – Evidence – Burden of proof – Defences – Need to cross-examine on case on which reliance to be placed – Rule in Browne v Dunn – Criminal proceedings – Part of defence case not put – Application to criminal proceedings – Consequences of failure to observe rule – Inferences to be drawn – Caution in directing on. Criminal law – Conduct of legal practitioners – Incompetence of counsel – Relevant principals. C. Criminal law – Miscarriage of justice – Improper admission of evidence. D. Legal Practitioners – Barristers – Incompetence of counsel – Criminal trial – Whether ground for contending miscarriage of justice – Relevant principals." 8 Despite the way in which these grounds of appeal are expressed, the essential complaint was that the lawyers representing Patsalis had behaved with such incompetence as to cause him prejudice amounting to a miscarriage of justice. 9 The trial, which ran for a much longer period than it was originally contemplated that it would, proved to be a difficult one. There was scarcely any procedural issue on which the parties agreed, and on most of them each party had a separate position, usually not precisely coincident with that taken up by the trial judge. This led to repeated interruptions in the flow of evidence before the jury. There were difficulties caused by illnesses, late arrivals and absences on the part of jurors, counsel and Patsalis. But the greatest difficulties were created by Patsalis' dismissal of his two counsel and his solicitors. Patsalis was represented by Mr M MacGregor QC from at a time just before the commencement of the trial on Monday 28 June 1999 until Friday 23 July 1999, when Patsalis dismissed him. Patsalis was represented by Mr J Amor-Smith from Friday 30 July 1999, and Mr Amor-Smith announced his appearance on Monday 2 August 1999. On 2 September 1999 Patsalis dismissed him. Throughout the periods in which Patsalis had counsel, he was also represented by solicitors. They withdrew from the case on 27 July, but returned to it on the same day. The attack on them was much less specific than on counsel. Legal principles 10 Patsalis referred to the principles of law stated in relation to incompetent representation in R v Birks (1990) 19 NSWLR 677 at 679F, 685B-F, 689G and 703A. He referred to numerous cases relating to the rule in Browne v Dunn (1893) 6 R 67, particularly R v Foley (1998) 105 A Crim R 1 (Qld CA). In fact, despite the terms of the grounds of appeal set out above, his submissions did not centre on breach of the rule in Browne v Dunn; instead they selected particular passages from R v Foley which were said to advance other contentions. 11 The essence of the test to which Patsalis appealed in relation to his lawyers' alleged incompetence turns on whether there has been a miscarriage of justice, whether caused by the flagrant incompetence of counsel or otherwise. The most favourable authorities from Patsalis' point of view are those holding that a miscarriage of justice may be found if the court has a lurking doubt that an appellant has suffered some injustice because of incompetent advocacy. General nature of attack on Mr MacGregor 12 Patsalis' attacks on the competence of Mr MacGregor face several hurdles. 13 One group of hurdles consists of statements by the trial judge, counsel for other parties, and Patsalis himself. The trial judge told Patsalis, the day after Mr MacGregor had been dismissed, that "his conduct of the case on your behalf appeared to be completely professional". Perhaps less materially, both the Crown, expressly, and counsel for Spathis, implicitly, praised it immediately after Mr MacGregor was dismissed. Even Patsalis said that Mr MacGregor's "knowledge and application of the law was exceptional and beyond reproach", and that he followed instructions while the court was actually sitting. 14 Another hurdle is that in large measure Patsalis' criticisms rest on factual contentions which could only succeed if supported by evidence (for example, that Mr MacGregor failed to follow pre-trial instructions and failed to seek appropriate instructions). There is no evidence to support them. 15 Despite these hurdles, Patsalis made the following general complaints about Mr MacGregor. He lacked the time to prepare for the trial, and failed to read all the relevant material. He failed to understand the complex nature of the brief. He was not fully instructed, and failed to understand instructions given to him by Patsalis. On occasion (it is alleged without evidence) he approached the dock to obtain instructions in the presence of the jury, creating an undesirable spectacle in comparison with the position of Spathis "in the dock, at least, having been afforded the opportunity to fully brief counsel with instructions and having a case fully prepared". In consequence he relied "on advocacy skills in law to conceal a lack of knowledge and understanding" of the case and of the evidence. He failed to visit and investigate the sites visited by the appellants on 11 and 12 April 1996. He failed to have appropriate subpoenas issued. He failed to obtain "independent certificates of expert evidence". He failed to call independent witnesses to contradict the Crown case and Spathis' assertions. He failed successfully to object to the reception of inadmissible exhibits. 16 In consequence of these failures, it was alleged that he did not properly cross-examine the Crown witnesses. He asked questions which invited witnesses to answer by commenting on the truthfulness of other witnesses. 17 He did not seek judicial directions which would overcome the consequences of the above difficulties, and Patsalis himself lacked the legal knowledge to do so. 18 All these factors made the result unsafe, and unfairly influenced the jury on the all-important matter of Patsalis' credit. Patsalis' affidavit 19 Patsalis read an affidavit sworn by him on 25 July 2001. The Crown then objected to many parts of it. Patsalis then indicated he wished to withdraw the affidavit, a course to which the Crown did not object. 20 As has already been indicated, Patsalis made many specific factual allegations against his lawyers. For example, Patsalis submitted that by 2 July 1999 it was "clear that counsel had not read the majority of the material" and that at a conference between himself and Mr MacGregor on 1 July 1999 "counsel was familiarising himself with the ERISP material". The consequence of there being no affidavit before this Court from Patsalis is that there is no direct evidence of many factual allegations which Patsalis made against his lawyers, and they can be supported if at all, only by inferences from the transcript and the trial record generally. History 21 It is convenient to set out as a matter of background the history of the trial with particular reference to matters to which Patsalis pointed on the appeal as supporting his argument that there was a miscarriage of justice because of his lawyers' incompetence. 22 The trial commenced on Monday 28 June 1999. Mr MacGregor QC, an extremely experienced criminal counsel of nearly forty years' standing, announced his appearance for Patsalis. He said: "There are some problems in relation to my retainer. I would need to announce my appearance pro bono at the moment until certain events may happen during the course of the day. The reasons for that are set out in [a letter of 8 June 1999 to the Legal Aid Commission]." The rest of the day was spent in discussing procedural questions, particularly those relating to an application which Mr MacGregor made for a separate trial. 23 On Tuesday 29 June 1999, the second day of the trial, Mr MacGregor indicated that most of the difficulties with the Legal Aid Commission had gone, and that he proposed to continue in the matter. The bulk of that day was spent in the trial judge hearing Mr MacGregor's application for a separate trial. Late that day Mr MacGregor requested a daily transcript free of charge. He said: "I foreshadow that unless the government of New South Wales, either through the office of the Director of Public prosecutions or the court system or otherwise affords to my client free of charge a day-to-day transcript of the trial then I will make an application for the trial for my client be permanently stayed, or stayed until such time as he has the benefit given to both the judge and the Crown to have a detailed daily record of the evidence, it being professionally incumbent upon me to take proper objection to assist your Honour to determine the case according to law, which is a duty because I do not have total recall or the facility to take a full note, nor do I have a junior, I will be seriously impeded and wholly unfairly impeded in the proper conduct of the defence if the playing field is so imbalanced that the State makes a copy of the transcript freely available to the prosecutor and denies it to an accused on Legal Aid." 24 On Wednesday 30 June 1999, the third day of the trial, the trial judge rejected Patsalis' application for separate trials. 25 On Thursday 1 July 1999 the court did not sit. 26 On Friday 2 July 1999, the fourth day of the trial, Mr MacGregor said at the outset: "I indicated to your Honour on the first day of the trial that I was appearing in the matter pro bono until such time as I would be adequately compensated for the trial. For the purpose of the pro bono aspect of the matter I spent some time reading as much of the material as I could and preparing submissions. I spent some five and a half hours of viewing video. The Legal Aid Commission pays for no conferences at the start and two conferences per week thereafter at $120 per conference. In order for me to discharge my professional duty I set about having a full day's conference with my client yesterday. At that stage I believed that I might have to open to the jury some time this afternoon so I was concerned to sort out in my mind what had to be done in the time available, in the expectation that the matter would be called on today. When I was informed that it was not to be called on today it was clear that I would have to spend all weekend preparing for the trial on Monday. I don't make any point about that but it does impose enormous obligations upon us. On Tuesday I had a conversation with Mr Power [counsel for the Crown], knowing he was anxious to open the case and I indicated that I would go through the material and indicate to him, if I was able, at about 3 o'clock yesterday afternoon any issues that arose. I commenced a conference at about 9.20 or 9.30 in the morning with my client, who was under some considerable stress; I was in conference all afternoon until Mr Power rang me on my direct line and complained about breaches of undertakings." 27 Mr MacGregor then said, referring to what became Exhibit G, a statement written out by Patsalis before he went to the police on 12 April 1996 and which he handed over to them: "The other matter I have to investigate and I have not been able to investigate but had proposed to do so this morning if I were not occupied so unnecessarily, was to ascertain from my client precisely the circumstances of what warning he was given before the production of that document." 28 Mr MacGregor a little later said: "I've not had a chance to fully prepare my client's defence". The trial judge replied: "I must say I don't under-estimate for one moment the enormity of the task the defence and for that matter the prosecution has in being ready for this trial and I don't under-estimate in particular the problems that Mr MacGregor has relating to his retainer." Later on Mr MacGregor said: "I have given full advice to my solicitor and because English is not his native language there is a little bit of a problem there but it can be resolved." This was a reference to Mr Ho, a solicitor working in the firm of which Mr Coustas was a principal. 29 On Monday 5 July 1999, the fifth day of the trial, Mr MacGregor said he had now obtained instructions about Exhibit G. The indictment was read, the accused pleaded not guilty, and a jury was empanelled. A problem about the empanelling then arose, and the jury were discharged. Mr MacGregor and other counsel then debated various issues of evidentiary admissibility for the rest of the day. In that period Mr MacGregor showed considerable familiarity with the documents he was dealing with – certainly equal to that of the other counsel. 30 On Tuesday 6 July 1999, the sixth day of the trial, those debates continued. While Mr MacGregor was objecting to what became Exhibit G, the following exchange took place with the trial judge: "HIS HONOUR: But if it transpires that the evidence is that Mr Patsalis simply turned up at the Bankstown police station and said to the constable on the desk; I have just witnessed a murder; I have prepared a document in this book which I now hand you, which gives some background to the story, I would like to tell the police about it, and hands it over, then how can there be any suggestion in that circumstance of any impropriety? MAGREGOR: With respect, that is not really the question. I think the question is this, is it not; we don't know what arose before the document was handed over. If Mr Patsalis, for instance, had said – and I have no instructions to this effect – but if there was sufficient communication between a person who came in off the street to say: I know you are investigating the setting fire to the body in Frenchs Forest last night, I was there when the fellow was stabbed, and I was there when the body was set fire to, then clearly there is information in the hands of the police arising from that statement which gives rise to the necessity to warn the person against self incrimination." The indictment was then read again, the accused pleaded not guilty again, and a second jury was empanelled. They were told they could go and need not return until Monday 12 July 1999. The rest of the day was spent on taking evidence on the voir dire from a police officer in relation to Exhibit G. 31 Wednesday 7 July 1999, the seventh day of the trial, commenced with the following statement by Mr MacGregor: "I have got a couple of housekeeping matters. My instructing solicitors are in the course of preparing subpoenas to be directed to the police officers Bowditch, Cook, Young and Jubelin for the production of their notebooks and duty books and contemporaneous records relating to their attendance on 12 April 1996; and subpoenas for the attendance to give evidence on the voir dire of Detectives Cook, Bowditch and Jubelin." 32 On Monday 12 July 1999, the eighth day, Mr MacGregor, on instructions, asked that a particular juror be discharged. After that matter was dealt with, the jury was addressed by the judge and all counsel. The taking of police evidence on the voir dire then resumed. 33 That process was continued on the ninth day, Tuesday 13 July 1999. In the course of Mr MacGregor's cross-examination of Detective Hull, he expressed a desire to see a certain police record. The trial judge said: "I think to some degree, though perhaps not completely, in fairness, the issues were predictable and perhaps ought to have been predicted and covered by subpoenas in advance so that one wouldn't have forever a postponing of the actual time at which one finally concludes the evidence." Mr MacGregor responded: "Indeed. My response to that, may say two things, first, I indicated to your Honour the extraordinarily difficult position I, as counsel, are placed, particularly as senior counsel undertaking responsibility of a murder trial and the circumstances in which that arose, and particularly the reticence of the police to provide this information fully and immediately." The Crown undertook to make inquiries with a view to having the records brought to court. The first witness to give evidence before the jury was then called. Mr MacGregor cross-examined that witness, Mr Jefferis, without apparent difficulty. He was followed into the witness box by Mrs Jefferis. Mr MacGregor began to cross-examine her. 34 On Wednesday 14 July 1999, the tenth day, the Crown announced that the documents sought by Mr MacGregor had been produced. Mr MacGregor and the Crown then put submissions on the voir dire. The trial judge said, in relation to the notice requirements in relation to material in the records of interview which might be tendency evidence: "I assume that the statement and the ERISP indeed formed part of that committal, that it was served in the usual way after the committal, that the accused and those representing him have been on notice of this material, so that the only issue is that there has apparently been, by oversight, no formal communication that reliance would be had upon this provision of the Evidence Act in so far as the material fell within it." The transcript then records: "MACGREGOR: Well to the extent that your Honour may be thought to have been critical of the conduct of the defence for not issuing subpoenas, the absence of notice is directly relevant to that question. Now I don't suggest for one moment that your Honour's criticism – conduct of the defence is really relevant and I don't apprehend that your Honour's criticism was a severe censure. HIS HONOUR: It wasn't. MAGREGOR: But your Honour can see what I'm suggesting. HIS HONOUR: Well -- MAGREGOR: If there was no notice we could not be criticised for not dealing with the matter in advance until such time as we had notice that it was sought to be raised." The case soon after resumed in the presence of the jury. Mr MacGregor completed his cross-examination of Mrs Jefferis. He and counsel for Spathis cross-examined the next witness, Mr Groves, briefly. Neither cross-examined the following witness, Mrs Groves. She was followed by her son, Mr A D A Groves, whom Mr MacGregor cross-examined briefly. Detective Hill gave evidence in chief. Mr Jackson gave evidence without being cross-examined by either defence counsel. 35 On Thursday 15 July 1999, the eleventh day, various short witnesses gave evidence, some being cross-examined by Mr MacGregor. Patsalis' record of interview was then played. 36 On Friday 16 July 1999, the twelfth day, this process continued. A video of Patsalis and Detective Hull visiting various locations on 13 April 1996 was then played. Certain documents were tendered. Mr MacGregor cross-examined Detective Hull about his movements with Patsalis on 12 and 13 April 1996. Mr MacGregor showed no difficulty in questioning him, and no lack of familiarity with the areas he questioned him about. Counsel for Spathis then cross-examined Detective Hull. Detective Kelly began his evidence in chief. 37 On Monday 19 July 1999, the thirteenth day, Detective Kelly continued his evidence in chief. Mr MacGregor cross-examined him about Patsalis' arrival at the police station on the evening of 12 April 1996. Detective McGillicuddy then gave evidence in chief about events at the police station on 12 April 1996. Mr MacGregor cross-examined him briefly. Detective Sergeant Jacob then gave evidence in chief about his observations of the victim and materials found on and near the victim, and about the arrest of Spathis. Spathis' record of interview was played. 38 On Tuesday 20 July 1999, the fourteenth day, Mr MacGregor was absent at the outset for a medical reason. In his absence, the playing of Spathis' record of interview continued to its conclusion. On Mr MacGregor's arrival, Detective Sergeant Jacob continued his evidence in chief. Mr MacGregor then cross-examined him at some length, in part on relevant locations, with which Mr MacGregor showed familiarity. Counsel for Spathis then cross-examined Detective Sergeant Jacob, and he was re-examined. Some short witnesses followed: Detective Hull, Ms Penny and Mr Greentree. The last two were cross-examined briefly by both defence counsel. Detective Fitzgibbins then commenced his evidence in chief. 39 On Wednesday 21 July 1999, the fifteenth day, Mr MacGregor cross-examined Detective Fitzgibbins. In part this dealt with relevant locations, and showed Mr MacGregor's familiarity with them. The same is true of his cross-examination of the next witnesses, Detective Locke, Detective Young, Ms Hamilton, Detective Langford and Detective Kehoe. The day concluded with evidence in chief from Detective Gibbs. In the course of that day the following exchange, on which Patsalis now relies, took place: "MACGREGOR: My learned friend tendered some tracksuit trousers. At the time I was conscious of some material in my client's record of interview but, as I understand it, there is no evidence linking the tracksuit trousers found at Mr Spathis' home with the tracksuit trousers referred to in my client's record of interview and indeed, as I understand it, I have just been informed that in Mr Spathis' record of interview he says he disposed of those tracksuit trousers aliunde. HIS HONOUR: I must say I was somewhat puzzled by the evidence for a number of reasons. (1) Mr Spathis says in relation to the trousers he was wearing he put them in the bin at work. In relation to Mr Patsalis, the jeans went into the truck, and in relation to the substitute trousers, they were said to be put in a bin at Earlwood, so that these blue trousers may have nothing to do with anything, where they lead I'm not quite sure. MAGREGOR: They don't constitute in my submission evidence against my client. It took my client to point that out to me and he's entirely right. I didn't have the grasp of the evidence that your Honour had but under s 161, contrary to my client's interests, but I do object to the tender against my client and I understand my friend is prepared to withdraw it." 40 On Thursday 22 July 1999, the sixteenth day, the jury was not present for some time while a voir dire was conducted and counsel addressed. When the jury returned Constable Wood gave evidence about his investigation of the burnt vehicle; Mr MacGregor cross-examined him. Mr Gould, who extinguished the fire on 12 April 1996, then gave evidence. The jury then left. On their return, they heard evidence from Ms Taylor, Mr Youlten, Mr Zografos and Detective Kendall. A voir dire examination of Mr Clugston then commenced. After Mr MacGregor's cross-examination of Mr Clugston on that voir dire, Mr MacGregor said: "That is the point I wanted to make your Honour, and I needed the assistance of my client to do it". 41 On Friday 23 July 1999, the seventeenth day of the trial, the following events happened. Mr MacGregor announced at the outset that his instructions had been withdrawn. He sought and obtained leave to withdraw. Patsalis had not withdrawn his instructions from his solicitors. At this stage the trial judge had been told that the Crown case was within one week of finishing. Patsalis said: "I am going to have to weigh all my options up. It was a decision that I have been thinking about for two weeks since the beginning of this trial and I made the decision late last night." Patsalis then expressed a desire to explain his position by reading from a prepared statement, but the trial judge said it was better to wait until the following Tuesday after he had taken legal advice. 42 On Tuesday 27 July 1999, the eighteenth day, Mr Coustas, who was a principal of the firm of solicitors retained by Patsalis, said that new counsel could be obtained for the following Monday. He then said: "However, in discussing the matter with my client, my client is of the opinion that would not be appropriate to his case, that it would be insufficient time for a person to be made fully aware of the full – all of the matters contained in the brief, and on that basis he believes he will be in no better position than the situation he was in with his former counsel." Mr Coustas said that he had been invited by Patsalis to conduct the defence, but said he felt he had neither the ability nor the time to do so and had only accepted instructions on the basis that counsel would be briefed. The trial judge gave him leave to withdraw. Patsalis then began reading notes to the Court. He said he would undertake his own defence. He referred to the retaining of fresh counsel and said: "But that would place me in the same predicament I was in previously, that being, counsel not being prepared in relation to the facts of the matter. For every statement contained within the brief, no matter what its substance is, is important to varying degrees in relation to the proceedings in my case. If I was to obtain new counsel then I believe I would be worse off. Therefore, having taken into consideration what his Honour told me on Friday, I have no other option but to undertake my defence." After Patsalis raised various issues about the future progress of the matter, the trial judge urged him to seek fresh counsel, and said picking up the brief would not be a substantial burden for experienced counsel. Patsalis said: "I, I'd like to elaborate on what your Honour has said to me because I think it's very important that you do realise that, and I do not wish to degrade anyone in this matter, your Honour stated earlier than an experienced counsel should be able to pick up a brief such as this being two folders, as your Honour stated, and see the relevance in relation to the statements that are contained in there. Now it amazed me, this is my perception, that how quickly you picked up the material yourself. That means your reading the brief. In my view, and you may have become aware or may not, I'm sitting here in the dock and I'm passing instructions to my counsel to explain issues in relation to witnesses. I would spend – I would leave the court and I would go home and I would write instructions in relation to the witnesses that would arrive the next day and pass them on to my counsel. Now obviously there was – it's very hard for me to understand." After the trial judge, Crown counsel and counsel for Spathis stated the desirability in Patsalis' interests of being represented by counsel, a short adjournment was granted. Mr Coustas then sought leave to represent Patsalis again, said he expected counsel to be ready by Friday, and asked for an adjournment until Monday 2 August 1999. The trial judge granted that application. 43 On Monday 2 August 1999, the nineteenth day, Mr Amor-Smith, a junior counsel of fourteen years' standing, announced his appearance for Patsalis. He applied for the matter to be adjourned for a week, or alternatively two or three days, to enable him to prepare the case. The trial judge granted an adjournment for the balance of that day only. While making that adjournment application Mr Amor-Smith said: "At about approximately 4.30 last Friday afternoon I received formal instructions to appear in this matter for Mr Patsalis. I had a lengthy conference from 4.30 until about 9pm. The next morning I received certain papers. I have read certain papers. The totality of the brief in mass is about 60 centimetres or about 2 feet. I have read very little of that. I have been supplied with three video recordings which I haven't seen. As I understand it they relate to records of interview and a cook's tour of the locus in quo. There are transcripts of various days which I have seen in a bundle but haven't read." The trial judge said: "The jury was not summoned until certain preliminary issues were dealt with. They occupied substantially the first two weeks of the time allocated for the trial. Having been disposed of it was everyone's hope that the thing would run more or less continuously, and it substantially has. There have been the usual interruptions, but by and large it has proceeded relatively smoothly until this particular problem arose. Since then of course the jury on Friday week ago was sent away until Wednesday and was thereafter notified on the Wednesday not to return until today. It was certainly my hope and intention that the matter would proceed today, though I had had signalled to me that because of the particular dilemma of another counsel who preceded you it may be necessary to put the matter over until tomorrow. I have to say that beyond that, especially having regard to the fact that there has been a weekend intervening, and I would hope and have expected that some substantial part of that may have been devoted to reading the material, that the matter would proceed, if not today then certainly tomorrow. I sympathise with the problem, but a lot of the material, as I say, has been dealt with by way of preliminary issue and has been disposed of so that what remains I don't think is within a very broad compass. It is certainly within two lever arch folders so far as the Crown brief is concerned, and even that as I understand it has been pared down quite considerably through jettisoning certain witnesses no longer thought to be essential. What remains is therefore simply the proving of the various circumstances which themselves necessitate a variety of particular witnesses but nothing, one would imagine, that would take a great deal of time to master or to deal with." The trial judge then said that the Crown would initially be calling witnesses relating specifically to Spathis, not Patsalis. Crown counsel said those Spathis witnesses would take one to one and a half days. After the adjournment application was disposed of, there were some further procedural debates. 44 On Tuesday 3 August 1999, the twentieth day, the evidence of Mr Lajkowski and Mr Eldridge, which was said to be tendered only against Spathis, was taken. The following testimony against both accused was then received: that of Mr Ghobrial, Constable Wells, Mr Gentles and Mr Najjar. There was then debate about the admissibility of parts of the anticipated testimony of Mr Stratikopoulos, on which the trial judge ruled. Mr Stratikopoulos then gave his evidence. Spathis' wife (Elizabeth Spathis, nee Figueira) then gave evidence. 45 On Wednesday 4 August 1999, the twenty-first day, proceedings opened with a debate about an inspection of a truck similar to that used on the night of the crime and a debate about whether an order under s 38 of the Evidence Act 1995 should be made in relation to Mrs Spathis. The trial judge refused the latter application. The inspection then took place. Mr Millard, who hired the truck to the victim, then gave evidence. Mrs Spathis' evidence then resumed. It was interrupted, pending a further s 38 application, by the evidence of Mr Harrison and Mr Clugston. 46 On Thursday 5 August 1999, the twenty-second day, there was a debate on the further s 38 application. In the course of that debate the Crown relied on certain inconsistencies to which Mr Amor-Smith had drawn attention in his cross-examination of Mrs Spathis. The Crown said: "while certain matters were put to Mrs Spathis yesterday afternoon by Mr Amor-Smith – and of course he did ask her to read through those sections of the statement which I was addressing your Honour about yesterday when this argument was dealt with in the morning – there was no specific detailed cross-examination about those inconsistencies and it might well be that my learned friend chose to take that course for a deliberate reason. … It might well be that my learned friend Mr Amor-Smith chose to adopt that course for a deliberate reason, which as I say he is entitled to adopt. But it would be the Crown's submission that the Crown could take it further." The transcript thereafter records the following: "HIS HONOUR: I must say I was not sure having re-read the cross-examination of Mr Amor-Smith whether it was proposed to suggest, for instance, in the final address that by reason of the differences between the statement as originally given and the evidence as given that Mrs Spathis was not to be believed or was in some way motivated by some desire to assist her husband. If that was the purpose then that wasn't put. CROWN PROSECUTOR: Yes, your Honour, and my view would be that the Crown might well want to put that, as you can well appreciate, and he is somewhat restrained because it wasn't put to suggest, as I certainly am entitled to, that she has embellished her evidence in some way, she has added to it considerably and that in actual fact – and I will be entitled to put this – it is not in accordance with what she originally recalled, that she has added to it to help her husband. I don't have a foundation for putting that in the sense it hasn't been put to the witness. Technically I think I am precluded from doing that. I suppose I could qualify that by saying there is a more liberal interpretation taken by Browne v Dunn than possibly was traditionally thought and certainly it is not always felt that specific things have to be put to a witness. HIS HONOUR: So long as the witness is challenged. CROWN PROSECUTOR: Yes, and it could be open to suggest that commonsense would lead one to suggest she could be a biased witness being married to the accused. I do not think that would necessarily have to be put, it would be open to the jury to infer that. HIS HONOUR: Perhaps I should enquire of Mr Amor-Smith, is it proposed or was it proposed to ultimately make a submission along those lines? AMOR-SMITH: No, I was more concerned to let the jury see the comparison of the two versions of what could be called the truth. For logistical reasons I was mindful of the calibre and the age group of the jury, the differences -- HIS HONOUR: I am not really asking to you justify it, I am simply asking you to understand, you are not proposing as I rather gather the Crown is proposing that to put to the jury that the version given to this court on oath by Mrs Spathis should not be believed because she is motivated by a desire to assist her husband? AMOR-SMITH: In my submission that could be an argument that I will advance. HIS HONOUR: I don't think you have put it. AMOR-SMITH: I am going to reserve my position." Somewhat later the trial judge referred to Mr Amor-Smith's having "reserved his position – whether he is entitled to do so or not is another matter … ." Yet later the transcript records the following: "HIS HONOUR: … Another aspect that concerns me is this, if Mr Amor-Smith does seek to reserve his position in respect of putting to Mrs Spathis that she is giving untruthful evidence or to put it at its lowest she is colouring her account in order to assist her husband then it seems to me that should have been put and put directly. CAMPBELL: In my respectful submission it is akin to a cross-examiner in a sexual assault trial failing to put to a complainant, 'I suggest to you that your motivation of your evidence because of some ill will towards the accused by reason of an unhappy family lawsuit' if you don't put it you can't make the submission. You have got to do it when the witness is there. HIS HONOUR: I think the position is as you stated, it has to be put if it is going to be ultimately submitted. I therefore am concerned that Mr Amor-Smith if he wishes to put that this would necessitate leave and no doubt you would say something about it, but he should seek leave to put that question. CAMPBELL: It also has forensic consequences. He has made a forensic choice at this point because he knows that if he does make an assertion of that kind and s 108 is invoked or may be invoked. HIS HONOUR: It may have consequences. CAMPBELL: And he may have taken the view, I don't know, I haven't spoken to him, he may have taken the view that he does not wish to run the gauntlet, as it were, of additional evidence being led to re-establish the credibility of the witness. For example, if I could use just a very simple example, it may be if someone does that I could [lead] evidence from another person to whom she spoke very shortly after the so called representation because s 108 and 66 seem to permit that. It is no easy matter and he for no doubt good reason chose not to introduce the question of motive or bias or recent invention or fabrication or anything of that description." The trial judge granted the s 38 application on three issues. After Mrs Spathis' evidence concluded, evidence was called from Miss Hall, Mr Walburn, Miss Croxson, Mr Rohlfs, Mr Weigner, Mr Heyn, Detective Fam and Detective Sergeant Olen. 47 On Friday 6 August 1999, the twenty-third day, little useful was achieved since one juror was absent through illness. The same is true of Monday 9 August 1999, the twenty-fourth day, because two further jurors were ill. The matter was adjourned to 11 August 1999. On Wednesday 11 August 1999, the twenty-fifth day, after some debate in the absence of the jury, one juror was discharged. Mrs Hamilton was recalled. Evidence was taken from Miss Rodwell, Mr John Spathis, Mr Walter, Mr Ashworth and Detective Senior Constable Gibbs. 48 On Thursday 12 August 1999, the twenty-sixth day, the trial judge said that the jury had requested a copy of the transcript of Mr John Spathis' evidence and of the original of a letter from the victim held by Mr Rohlfs. The former request was acceded to and the second deferred. Evidence was then taken from Detective Senior Constable Gibbs, Mr Manovski, Detective Senior Sergeant Forbes, Mr Haniotis, Mr Anastasios Spathis (Spathis' father), Mr Grisdale, Senior Sergent Mesker, Mr Wilson and Mrs Moffatt. 49 On Friday 13 August 1999, the twenty-seventh day, Dr Lawrence gave evidence. A statement of Mr Redfearn, and his evidence at the committal hearing, were read. Procedural questions were discussed. 50 On Monday 16 August 1999, the twenty-eighth day, one juror was absent through illness. Patsalis personally presented submissions in support of an application, which he advised Mr Amor-Smith that morning he desired to have made, to conduct a voir dire in relation to Exhibit G and motor vehicle POZ 344. Patsalis was given leave to give sworn evidence in support of that application. The trial judge declined to alter his ruling on Exhibit G, and ordered Mr and Mrs Jefferis to be recalled to be further cross-examined on behalf of Patsalis in relation to POZ 344. 51 On Tuesday 17 August 1999, the twenty-ninth day, the Crown announced that Mr Amor-Smith had informed him that Patsalis did not now require the recall of Mr and Mrs Jefferis. The Crown case was closed. Patsalis began his evidence in chief. 52 On Wednesday 18 August 1999, the thirtieth day, Mr Amor-Smith announced that though Patsalis had suffered severe chest pains overnight he wished to proceed. Patsalis continued his evidence in chief. Near the end of it he gave the following evidence: "Q. In relation to the record of interview that was conducted via the video system, have you had time to reflect on that record of interview? A. I have had three, three years and a bit to reflect on that. Q. Is there anything in that record of interview which you now wish to amend? A. There was a lot of mistakes which I did make, but – a lot. Q. You made some, you say a lot of mistakes? A. Yes. Q. Are you able to identify those mistakes? A. Not without having my transcript in front of me, you know. Q.. Are there some highlights that you can identify? A. Yes, definitely. Q. What are those highlights? A. The major point would have to be – because of my, as I said, because of my state of mind at that time I made a lot of errors – the one major one that has always bothered me was when I mentioned that Alex Spathis was standing next to us in relation to when Peter was talking about precaution. Now that didn't occur, the first – if you look at page 39 of my record of interview and then you go back to when I talk about the precaution I make mention of us being in the truck at first when I actually start talking about the precaution which was correct, that was a correct version. The correct start of it. And later on on the following page I make mention that he was standing next to us and I even in my record of interview I recall that even said standing next to me – and I'm not saying this because that has – it's because of what I now know, I've always known it all along, it's just that at that time I could not express myself and even now I still feel I don't express myself as I should. Because – but back then it was much worse than what it is today. I was under great – I was suffering from shock and that was the reason for me drafting up these notes, because I wanted to say the whole truth in relation to this matter and that is why I even incorporated – I went back in time and mentioned my debts to Mr Spathis in – and how it all coincided. Now I wanted to be truthful in every aspect, my intentions, I knew that I had to – I had to – when I went to the police I had to tell them the whole truth in relation to all of the matters and all the matters included my debt to him and because that had bearing on how everything came into being, if I can use that term. And my state of mind at that time and that is why I tried all along throughout the following day and that was when I went to the Hilton Hotel and when I went and bought this notebook was so that I could put it all down in writing and not speak it. Q. Was there another reason why you went to the Hilton Hotel, besides writing your notes? A. Yes, because I didn't have a place to stay because there was no way I was going back to 1 Arthur Street, Homebush, because I didn't know if Mr Spathis was going to return or not or what was going to occur in relation to him because he had always made threats to me and now from my point of view I've just witnessed him kill somebody. I was the only witness to that killing. He did not know what I knew in relation to the precaution and that I was Peter's security. Now for me I could have – and I knew when I gave him – it goes back to the 6th of the 4th of 1996 when I gave Peter my licence details. I knew that I could not in any way, shape or form hurt him or do anything to him because he, if I can use the term, had something on me. And if anything was to happen to him it was all going to come back into my direction." The trial judge warned the jury that having Patsalis' evidence in chief, and knowing that Spathis' record of interview contradicted it, it was important for them to keep an open mind. 53 On Thursday 19 August 1999, the thirty-first day, Mr Amor-Smith informed the court that Patsalis was still suffering ill health. After the procedural consequences of that and other difficulties were discussed, the trial judge said: "HIS HONOUR: The question was not asked in terms: Is everything you said in the record of interview true? It is clear, the implication of the questions put, namely, the invitation to correct anything which was not accurate, so that Mr Patsalis' interview is now evidence, generally, available. CAMPBELL: Subject to matters I will come to later. He has not expressed its veracity on oath. HIS HONOUR: I don't know whether that was an oversight on the part of Mr Amor-Smith or whether that was quite deliberate. AMOR-SMITH: I thought the video record of interview had gone into evidence some time ago. HIS HONOUR: It has. You did not put to him, specifically, is everything you said to the police before you were interviewed and after you were interviewed true; is there anything you want to withdraw or modify? AMOR-SMITH: As I understand it, I asked him questions referable to the record of interview, is there anything you wish to change? He said there were things there but he would have to look at his record of interview. I then said, any specific you wish to raise at this time? He then said, one issue referable to a particular matter. Otherwise, if we were to go through that procedure, it could take half day or so, and if that is required, I, certainly, will do it. HIS HONOUR: What I had anticipated you would do is to put a question along the lines I have just put, is everything you said to the police both before your interview and during the course of your interview true? One would anticipate that he would say, yes. However, there were some inaccuracies that came into the interview of which these are the important ones. One he mentioned. If there are any other important ones, I would have thought that it was fairly important that he also mention them. I just want to be clear in my own mind as to how it is put, so that I can, ultimately, tell the jury whether or not this is evidence which is available, generally, in the case against both accused which, if it is incorporated, as I would understand the position it would be, if it is incorporated by reference that what I said then, I now say that everything I said was true, although I was inaccurate in this or that respect, it then becomes evidence, generally; is that not right? AMOR-SMITH: Yes. That be the situation, I may have to seek your Honour's leave to adduce further evidence in relation to that area. HIS HONOUR: It is your case. All I am seeking is clarification. AMOR-SMITH: I made an assumption, perhaps I was wrong, that the record of interview had gone in. HIS HONOUR: It has, but it is at the moment only in your client's case. AMOR-SMITH: I would want to put further questions in that area. I seek instructions in the matter of inconsistencies and if there are, where they are. HIS HONOUR: This is not an invitation to down tools to comb through the record of interview. I thought you would have been in a position to say at once, leaving aside minor slips of the tongue, but to say these matters on the evening for whatever reason I got wrong and now I want to correct. You have corrected one. If there are others, it seems to me it should be corrected." Mr Amor-Smith successfully applied to call further evidence in chief. Part of it was: "Q. Yesterday I was asking you some questions about your record of interview, do you recall that? A. Yes, I do. Q. As I understand it you subsequently received a hard copy of that record of interview, do you recall that? A. Yes. Q. I show you a folder, would you open that black folder and what is contained within that black folder? A. The record of interview that I gave on the 12th of the 4th 1996. Q. Is everything that you said in that record of interview to the police before, during and after the record of interview true and correct? A. Yes. Q. True and correct? A. What is contained in here? Q. Yes? A. Except for the mistakes that I mentioned yesterday that I had made. Q. As I recall your evidence you said that there were some mistakes or some things that you would like to fix up in that record of interview, is that correct? A. Well, I fixed up the mistake in relation to the precaution and how it was only told to me and not in the presence of Mr Spathis. Q. Are there any other matters contained within that record of interview, the hard copy that you have got in front of you, which you now wish to amend, change and/or alter? A. Not only that I can really think of at this time, no. Q. So other than the matters that you amended and/or altered and/or changed yesterday everything that you say in that record of interview during, before and after the record of interview is true and correct, is that what you say? A. To the best of my recollection, yes." The trial judge delivered a judgment permitting certain categories of cross-examination concerning Patsalis' character. The cross-examination of Patsalis began. 54 On Friday 20 August 1999, the thirty-second day, Patsalis' cross-examination by the Crown continued. The brief evidence of Patsalis' sister, Betty Patsalis, was then interposed. Mr Amor-Smith was then given leave to ask further questions in chief about Exhibit 8P. The Crown cross-examination then resumed. 55 On Monday 23 August 1999, the thirty-third day, Patsalis' cross-examination by the Crown concluded. His cross-examination by counsel for Spathis then commenced. 56 On Tuesday 24 August 1999, the thirty-fourth day, Patsalis' cross-examination by counsel for Spathis continued. 57 On Wednesday 25 August 1999, the thirty-fifth day, Patsalis' cross-examination by counsel for Spathis finished and re-examination started. 58 On Thursday 26 August 1999, the thirty-sixth day, Mr Amor-Smith applied for and obtained an order for a view of Bankstown Square. Mr Andrew Patsalis, Patsalis' brother, gave evidence. 59 On Friday 27 August 1999, the thirty-seventh day, Mr Amor-Smith applied unsuccessfully for an extended view. Debate about procedural issues and jury directions took place. 60 On Tuesday 31 August 1999, the thirty-eighth day, a juror was discharged and the view took place. 61 On Wednesday 1 September 1999, the thirty-ninth day, argument took place on an application made by Mr Amor-Smith on Patsalis' instructions that Exhibit AG (a jacket allegedly worn by Spathis during the crime and found in his house) should be excluded. The trial judge concluded that it should not be. Detective Sergeant Jacob gave some evidence about photographs. Patsalis was recalled to deal with a plan relating to access to Bankstown Shopping Mall in relation to which Spathis' legal advisers had made an error. The Crown then re-opened its case to recall Mr John Spathis to enable further cross-examination by Mr Amor-Smith to be conducted without objection from Spathis. The case for Patsalis was then closed. Debate then ensued in which the following was said: "CAMPBELL: "I take it at the end of the day your Honour will give the jury some kind of direction along the lines of Mr John Spathis was recalled because there was an oversight which was corrected. The normal principle is that somebody has an opportunity to contradict an assertion, a Browne v Dunn type principle. The jury asked for the transcript of his earlier evidence, they obviously were concerned about his evidence regarding it as of importance. We would see it as important that they understand the forensic reason why he was brought back when he was and the way in which he was and why other witnesses have not. HIS HONOUR: As I say, at some point I am going to invite each of you to catalogue all the warnings and directions that you believe I ought to include somewhere or other. I will certainly make a note that that is one matter that you specifically have drawn to my attention. CAMPBELL: It is not just the one that has been brought back, it is the ones that haven't as well in our submission." Counsel for Spathis then opened his case and Spathis began to give evidence in chief. 62 On Thursday 2 September 1999, the fourtieth day, while the Court waited for a late juror, the following debate took place: "HIS HONOUR: Mr Campbell, if I could just address something to you. Following your remark about Mr John Spathis, I was looking at the sort of Browne v Dunn type point, and the directions that are given in that context, and I haven't got beyond, I have to say, looking at the convenient summary which appears in criminal directions. There are a number of things for instance that it is perhaps surprising that questions were not asked of various witnesses, and that might apply to you as much as – not perhaps as much as, but some degree as it does to Mr Patsalis. And one could understand good forensic reasons for this, but nonetheless I'm looking at the viewpoint of the jury, Mr Amor-Smith chose not to open up the issue of the exclusion from The Three Swallows Hotel with his brother, nor threats against his brother. Nor did you. Now, who would ordinarily be expected to take that up? I can understand you not going into it when he does not. CAMPBELL: That is the decision I took. HIS HONOUR: It is a tactical decision in some respects, and from the viewpoint of the jury, if I were to give a direction, it would have to be a fairly wishy-washy sort of summary; on the one hand this, on the one hand that, and it's a question for you, you know, and I am not sure that it is appropriate in that context at all, so that I think you will need to define very precisely in the areas where you say there has been some default. That is the first thing. The second thing is I do think it is the fact that it has been said repeatedly by Mr Patsalis that there was a difficulty in his case, and it was evidence that there was the change of counsel, and in the nature of things Mr Amor-Smith had a large task in taking up what was then already a fair mass of paper, whatever I might have said at the time, and I do not resile from that. It was fundamentally two folders, but it is to get the flavour and the feel of a case, when you come into it partway through I think is not easy. CAMPBELL: Of course in any case people do miss things." After other procedural debate, Spathis' examination in chief continued until the luncheon adjournment. On resumption, Mr Amor-Smith said: "AMOR-SMITH: As your Honour will recall and appreciate Mr Patsalis has substantially prepared his own case. He has now informed me that he has prepared his cross-examination of Mr Spathis and he has prepared his closing address for the jury. He has worked for the last six weeks preparing those two aspects, that is the cross-examination and the closing address. He has now given formal instructions to my instructing solicitor my instructing solicitor's instructions are to be withdrawn at 3.30pm, 2 September 1999. On that basis my instructing solicitor has advised me that as their instructions are withdrawn my instructions will also be withdrawn. The situation came about this way, the indication was that I would be at some stage cross-examining Mr Spathis. Mr Patsalis advised me last Tuesday, or was it Monday, that he was preparing a thousand page question and answer for me and that I was to contract with him rigorously to ask those questions and only those questions and I was not to divert from his thousand page question and answer transcript. I advised him that that would be an impossibility and I could not contract, nor could I give an undertaking that I would ask any or all of those questions. I indicated to him that I have prepared my cross-examination which consists of approximately 98 points but I haven't got a question and answer format because my questions and answers would vary according to the questions and answers as the case proceeded. Mr Patsalis has considered that aspect and just prior, 1.55 this afternoon, the question was posed, 'Will you or will you not be cross-examining yourself?' It was agreed that Mr Patsalis would complete the rest of the case on his own initiative. On that basis at 3.30 this afternoon, subject to your Honour's leave, I propose to withdraw from the proceedings as do my instructing solicitors." Soon afterwards Spathis' evidence in chief concluded and the Crown's cross-examination began. 63 The course of proceedings thereafter can be summarised more briefly. On Monday 6 September 1999, the forty-first day, the Crown's cross-examination of Spathis finished. Patsalis' cross-examination of Spathis started. It continued on Tuesday 7 September 1999, Wednesday 8 September 1999, Thursday 9 September 1999 and Wednesday 15 September 1999. Re-examination of Spathis concluded on that day. The Crown address began and concluded on that day. On 16 September 1999 counsel for Spathis addressed the jury, and Patsalis addressed the jury. On 17 September 1999 Patsalis was unfit. On 20 September 1999 he finished his address. On 21, 22 and 23 September 1999 the trial judge summed up. On 23 September 1999 the jury retired. On 24 September 1999 they convicted each accused of murder. Some general submissions of Patsalis 64 There are some general submissions advanced by Patsalis that should be considered first. 65 Patsalis submitted that he had been forced into direct participation in the trial because there was no junior and Mr Ho's English was inadequate, and because "counsel was impeded by not having a junior or solicitor competent enough to point out various inconsistencies". There is no evidence that Mr Ho's English was inadequate: Mr MacGregor described it only as creating "a little bit of a problem". Nor is there any evidence that Mr Ho was incompetent. It is true that Mr MacGregor had no junior, but no other counsel at the trial had a junior either, and innumerable serious criminal trials, including murder trials, are conducted by barristers who have no juniors. These factors do not support the view that there was any miscarriage of justice. 66 Patsalis submitted that if Mr MacGregor lacked time to prepare, he should have sought an adjournment. Despite the manner in which the trial judge was solicitous, almost to a fault, for the interests of the accused and in particular Patsalis, it is highly unlikely that that application would have been granted. In any event the delays in the first two weeks of the trial amounted in substance to an adjournment. 67 Patsalis drew attention to Mr MacGregor's statements on 2 July 1999 to the effect that he had not yet read the whole brief, that he had not yet received instructions about Exhibit G, and that he was under time pressure. He submitted that it followed that Mr MacGregor had behaved with flagrant incompetence. That submission is rejected. Mr MacGregor would only have behaved incompetently if he had not used all reasonable endeavours in the time available to master what materials he had. The evidence does not show that he had not mastered them. It does show that he had put significant effort into dealing with the particular tasks that had arisen in the first week. He objected to a significant quantity of Patsalis' record of interview. His argument on the first and second days in support of the application for separate trials was vigorous and impressive. He revealed familiarity with the contents of both records of interview. He had protested with appropriate force about various difficulties he was facing, such as transcript difficulties. To some extent those of his assertions from which Patsalis sought to infer unpreparedness can be read as the somewhat exaggerated claims of an advocate seeking to achieve a particular forensic purpose. The jury was not empanelled, the indictment was not presented, and the accused did not plead until Monday 5 July 1999. That empanelling miscarried. The indictment was not presented a second time, the accused did not plead and the jury which heard the trial was not empanelled until Tuesday 6 July 1999. Various voir dires and other procedural activities took place in the absence of the jury until 12 July 1999, the eighth day: not until then did the Crown and counsel for the accused open. The first witness before the jury was not called until 13 July 1999, the ninth day. 68 The point is that even if Mr MacGregor felt he was less than fully prepared on 2 July, the rather stuttering progress of events over the succeeding days gave him ample opportunities to become more fully prepared in the next ten days, and in particular before any evidence was called before the jury. 69 A particular submission about Mr MacGregor's conduct on 2 July 1999 related to the warnings given before the production of Exhibit G. Patsalis submitted that if Mr MacGregor had read the brief, he would have seen the statements of Detective McGillicuddy, Constable Kelly and Constable Agnew, which described the warnings. That misses Mr MacGregor's point which was that he wanted to "ascertain from my client precisely the circumstances of what warnings he was given" – not from the police officers. In any event by Monday 5 July 1999 Mr MacGregor had examined the police statements. 70 Patsalis submitted that the observation by Mr MacGregor on Tuesday 6 July 1999 "I have no instructions to this effect" showed that Mr MacGregor's promise on 2 July 1999 to obtain instructions about Exhibit G had not yet been fulfilled. Patsalis submitted that this conduct "is not professional, nor is it honest or in the interests of" his case. However, the submission rests on a misunderstanding of what Mr MacGregor was doing. He was engaged in a hypothetical debate with the trial judge. He was not saying that he had not sought instructions; merely that his instructions did not correspond with the hypothetical example he gave. 71 Mr MacGregor was criticised for relying on a Crown assurance that the police documents he wanted in connection with Exhibit G were being produced, because it was naïve to expect police officers in trouble to produce evidence adverse to them. If this unjustified attack on the officers were sound, of course, they could have made a selective response to any subpoena as well. Mr MacGregor was not incompetent in relying on Crown counsel. Defence tactics: general 72 In relation to what Patsalis called "subpoenas, certificates of expert evidence and the summonsing of independent parties", he submitted: "The absence of notice relating to the production of certificates of expert evidence, and the summonsing of independent parties left various critical matters unresolved, unchallenged and open to speculation. Such critical matters, it is respectfully submitted, gave an unfair advantage to a party who lies by and belatedly produces a version tailored to meet the evidence. Whilst various subpoenas were issued during the course of the trial, they were filed incorrectly, or very late, or the wrong information was recorded and therefore, when the subpoenas were answered the material was useless. With respect the subpoenas only begin to be filed due to the continued insistence of the appellant, or by the direct participation of the appellant whilst the trial was in progress. The issues that required investigation were highly predictable and therefore it is respectfully submitted, ought to have been anticipated. The absence of notice is directly relevant." So far as this rests on allegations of fact, they are unsupported either by any affidavit or by the transcript. 73 It is now necessary to go to specific instances advanced by Patsalis. Subpoenas Subpoenas to Spathis 74 Patsalis submitted that Spathis should have been served with a subpoena for "All work, home and mobile telephone records for the period" 1 January–12 April 1996 in order to demonstrate supposed errors in Spathis' distancing of himself in his record of interview from the cigarette transaction with the victim, and to achieve other goals of supposed value to Patsalis. For example, Patsalis said that if the records showed a closer association between the victim and Spathis, the jury would infer how clever Spathis was in keeping himself at a distance while leaving Patsalis to do the preparatory work. "It could then be inferred that such a terrible crime was in the mind of only one person. It is consistent with the innocence of one of the men in terms of their joint agreement or joint participation or joint knowledge." 75 The first problem with this submission is that Spathis would have been highly likely to rely on his privilege against self-incrimination. The second is that Patsalis has not demonstrated that the materials which he submitted Spathis (or Telstra, if a subpoena were directed to it) would produce would in fact be useful. It is wholly speculative whether anything of value would have turned up. Subpoenas to Mr John Spathis 76 Patsalis submitted that subpoenas should have been served on Spathis' uncle, Mr John Spathis. The documents sought were telephone records from 1 January–12 April 1996, as well as those permitting an "independent investigation" into Mr John Spathis' business activities relating to his dealings with his cigarette purchases and sales". Patsalis submitted: "The material could provide a logical nexus between the ERISP and evidence of the appellant with the precautionary letter (Exhibit AX), with the note found in Mr Ludwig's home (Exhibit 8P), with the statements of Mr Redfern and with the statements of Mr Grisdale. It is respectfully submitted, that it is naïve, or it would be naïve simply to accept Mr John Spathis' statement and evidence at face value. The existence of Mr Redfern and Mr Grisdale's statements, and the Exhibits AX and 8P were critical matters in the defence case." In Exhibit AX the victim said, in a note only to be opened after 11pm on 11 April 1996, that Spathis' uncle was supposedly involved in the cigarette business. Exhibit AP is a typed list of notes made by the victim. The reference to Mr John Spathis' statement and evidence is a reference to his denials that he knew Patsalis, to his statement that Spathis had never approached him with a proposal to buy or sell cigarettes, and to his statements that he never bought illegal cigarettes. In cross-examination Mr Amor-Smith put to Mr John Spathis, who ran a supermarket which sold cigarettes, that he, Spathis and Patsalis had a conversation in October 1995 at the Three Swallows Hotel in which Patsalis discussed acquiring soft drinks from Mr John Spathis for a charity night being run by Patsalis' sister at the Bankstown Greek Orthodox Church. Mr John Spathis denied this. Mr Amor-Smith also put to John Spathis that he had seen Patsalis on at least fifteen occasions at the Three Swallows Hotel. Mr John Spathis denied this too. Mr Amor-Smith further put to Mr John Spathis that he and Patsalis had a conversation in late March or early April 1996 about supplying cigarettes to the victim with the involvement of Spathis; and that he and Spathis were to sell cigarettes to the victim through Patsalis as middleman for a commission of $3,500. Mr John Spathis denied this. He also denied any knowledge of the victim. Patsalis submitted that the documents he claimed should have been subpoenaed "may have been able to reveal" that both Mr John Spathis and Spathis were lying and that Patsalis' account of the transaction was correct. 77 There is no evidence that Patsalis ever gave Mr MacGregor or his instructing solicitors during the time when Mr MacGregor was briefed instructions along the lines of the propositions underlying the questions put to John Spathis by Mr Amor-Smith. Propositions along those lines do not appear in Exhibit G (the handwritten statement Patsalis composed before going to the police) or in his record of interview. Mr MacGregor did not mention them in opening. This casts a grave doubt over those propositions. Nor, even given the furtiveness with which, according to the propositions put by Mr Amor-Smith, Mr John Spathis behaved, is it likely that the telephone records would have corroborated them. 78 Further, subpoenas wide enough to support the "independent investigation" of Mr John Spathis' business activities would probably have been set aside by the court at the instigation of Mr John Spathis as an abuse of process. It would have been natural for an uncle to advance his nephew's interests in this way Subpoenas to Metropolitan Security Services and its officers 79 Metropolitan Security Services was Patsalis' employer in the period before the victim died. 80 Patsalis submitted that Spathis in his record of interview and his evidence had suggested that Patsalis was out of work and dependent on Spathis for living expenses. 81 Patsalis submitted that Metropolitan Security Services should have been served with a subpoena to produce documents showing, and Mr Harding (Operations Manager) and Miss Jenkens should have been called to say, that Patsalis had been "in stable employment and had a steady income" from 24 November 1994 on, even while he was on workers' compensation or while placed on light duties. 82 Contrary to what Patsalis told the trial judge on 8 September 1999 (2411 lines 16-20), there is no evidence that he had ever asked his lawyers to serve a subpoena on Metropolitan Security Services. According to what Patsalis told the trial judge on 8 September 1999 (2411 lines 22-45), Metropolitan Security Services had been taken over by Chubb and Mayne Nickless Ltd. On that day the trial judge said he remembered a subpoena addressed to Chubb, which had said there were no documents (352 line 28). That subpoena had been issued by Spathis. On 9 September 1999 counsel for both Spathis and the Crown said they had no records from Patsalis' employer (2447 lines 44-49). In those circumstances it would seem that any attempt by Patsalis' legal advisers to pursue Metropolitan Security Services by a subpoena duces tecum would have been futile. 83 There is a sharp contradiction between the reason now advanced for the utility of the subpoena to Metropolitan Security Services and the reason which Patsalis gave the trial judge for the supposed instruction to his solicitors to obtain his 1995–1996 work records. The reason now advanced is that the subpoena could have produced documents discrediting Spathis by showing that Patsalis was in employment. The reason then advanced was that the documents produced would "perhaps" give Patsalis an alibi in relation to some unspecified meetings with Spathis. Inquiries – in which the trial judge arguably went well beyond the call of the Court's duty to an unrepresented litigant – proceeded with a view to establishing the alibi which Patsalis desired. The Crown's solicitors had dealings with Mr Harding (2511-2512). The Crown made inquiries of the police (2527 line 55). Patsalis suggested that examination of his pay slips might assist, which the trial judge doubted (2528 lines 26-37). Further dealings between Detective Hull and Ms Williams suggested that Patsalis was not at work for various periods including a crucial period in February 1996. Patsalis then suggested that an examination of Mr Coustas' workers' compensation file might be fruitful (2530 lines 4-32). A little later Patsalis said he was deciphering some manuscript records (2535 line 55). Patsalis then said he needed a document which he had at home to prove he was working in January 1996 (2536 lines 19-29). In the next sitting day (Monday 13 September 1999) Patsalis said further difficulties had been caused by the illness of the lady who had promised him all necessary information (2534 line 10–2555 line 13). On the next sitting day (Tuesday 14 September 1999) Patsalis reported that further inquiries of Mayne Nickless had been fruitless (2562–2564). 84 The fact is that the Crown never appears to have alleged that the reason why Patsalis kept asking Spathis for money was a lack of income, and Spathis himself put little stress on that proposition. Spathis' main point was that Patsalis kept borrowing money to feed a gambling habit. The Crown's point was that Patsalis' motive was a need to repay his debts to Spathis, who was putting pressure on Patsalis to repay those debts. Patsalis in fact repeatedly admitted both that he was a heavy and unsuccessful gambler and that he owed Spathis about $16,500. None of these matters could have been affected by proof that Patsalis had been in regular employment. 85 This chain of events suggests that in truth there was no real prospect of obtaining useful records by a subpoena to Metropolitan Security Services; that even if there was, and even if his lawyers failed to get them, the trial judge would have allowed Patsalis himself to issue any relevant subpoena right up to the close of the evidence; that what Patsalis was trying to prove at the trial is different from what he says now that he was trying to prove; that what he says now that he was trying to prove would not have assisted his cause at the trial; and that what he was trying to prove at the trial was so marginal to the very strong case against him that his failure to prove it, whatever the cause, did not produce any miscarriage of justice. Subpoena to Dr Mahony 86 Patsalis submitted that it would have been useful for him to establish that his acquaintance with the victim was "simply a coincidence" in that the victim had a business of restocking cigarette vending machines, one of which was at 12B Restwell Street, Bankstown, and that Patsalis only went there in order to have minor surgery from Dr Mahony because of a work-related injury. 87 A perusal of this part of Patsalis' written submissions might suggest that there was no material from Dr Mahony before the jury. In fact both Patsalis and Spathis tendered material from Dr Mahony. It did not support the point which Patsalis now says Dr Mahony's material would have supported. But Patsalis himself could have subpoenaed any other material; and proof of the fact which Patsalis says he wishes to establish would have made no difference whatever to the case against him. Subpoenas to Mr Clark or Mr Harding 88 Patsalis submitted that subpoenas to the Metropolitan Security Services Training Officer (Mr Clark) or Operations Officer (Mr Harding) to give evidence would have enabled him to refute Spathis' suggestion that Patsalis knew of a "Gun Club" at Terry Hills, which Metropolitan Security Services used for training. Patsalis could have issued the subpoenas himself. And it is impossible to see how the evidence in question would have created any chance of acquittal. Failure to call expert evidence 89 Patsalis submitted that Dr Lawrence, the only forensic pathologist who testified at the trial, was not independent, and that an independent witness should have been called. 90 Patsalis and Spathis each said that the other was sitting in the driver's seat, i.e. on the victim's right. Dr Lawrence expressed the view that some of the wounds could have been caused by either knife found at the scene. He also said that three of the wounds on the left hand side of the victim could have been inflicted from the left side, while seven wounds could have been inflicted from the right, as their wound tracks were mostly from right to left. This left it open to the jury to find that two knives were used and that the victim was attacked from both sides, that is, that each accused stabbed the victim. Dr Lawrence said that given the unknown movements of the victim at the time of the stabbing, it would only be speculation to estimate whether they all came from the right or some from the right and some from the left. Dr Lawrence also said that the wounds could have been caused by one knife, two knives, or by many other knives. 91 Patsalis was acting for himself when the time came for the calling of expert evidence in his own case. There is no explanation why, if he found Dr Lawrence's evidence vulnerable, he did not do so. There is no reason to suppose that it was vulnerable. Patsalis did not point to anything which any witness might have said which would have contradicted Dr Lawrence. That in turn means there was nothing useful which could have been asked of Dr Lawrence which was not asked. Patsalis did not submit that he gave any instruction to Mr Amor-Smith that the latter should ask the questions which Patsalis now contends should have been asked. K-Mart Store subpoena 92 Patsalis submitted that a subpoena should have been issued to obtain film of the person who bought knives at the K-Mart Store. There is no evidence that appropriate inquiries were not made. There is every possibility that no relevant record had been kept, or that it was indistinct. Subpoena re telephone booth near Patsalis' house 93 Patsalis said that his lawyers had failed to subpoena the telephone records relating to the telephone booth near his home to confirm calls made to the victim. In fact there was documentary evidence of a call made at the relevant time from another booth (Exhibit BB), and the jury was entitled to accept it. Subpoena to Commonwealth Bank 94 Patsalis said he wished to prove that he had procured payment to Spathis of a Commonwealth Bank cheque from a Green Orthodox priest. Since Spathis admitted this, no prejudice was caused by the failure to issue any subpoena. In any event, the point was entirely trivial. Independent report about fire 95 Patsalis submitted that counsel should have had independent tests conducted "to ascertain the height of the flames when the fire was first lit" and "to ascertain how long the body of [the victim] had been subjected to fire". Patsalis did not, however, explain how those tests would have helped his case. Failure of counsel to visit relevant scenes 96 Patsalis submitted, first, that counsel failed to "visit and investigate crime scenes critical to the case" and, secondly, that this led to an inability of counsel to understand the facts. 97 There is no evidence that counsel did not conduct appropriate visits. And even if counsel did not do this, there is nothing to suggest any misunderstanding of the evidence. Mr MacGregor's cross-examinations of relevant witnesses, in particular, showed adequate familiarity with the scenes. Though criticism was made of Mr Amor-Smith's cross-examination in relation to the K-Mart Store at Bankstown, that criticism was unconvincing. In any event, issues about the details of particular locations were quite minor. Failure of counsel to object Exhibit AA 98 Exhibit AA consisted of certain tracksuit trousers. Initially they were admitted without objection. This was said by Patsalis to illustrate that so far as Mr MacGregor was concerned "there was next to no preparation done". Mr MacGregor and the trial judge then discussed the matter on 21 July 1999 in a passage set out above. 99 If counsel erred, it was a harmless error, since the trial judge excluded the evidence (766). Exhibit AG 100 Exhibit AG was a jacket allegedly worn by Spathis on 11 April 1996. It was tendered during the evidence of Detective Gibbs, who said he found it in a search of Spathis' home. Patsalis has not demonstrated why Exhibit AG was inadmissible or how its reception unfairly prejudiced him. Errors in cross-examination Clugston 101 Patsalis made lengthy criticism of Mr MacGregor's handling of Mr Clugston the day before Mr MacGregor was dismissed. Patsalis attributed the fact that Mr MacGregor applied to examine Mr Clugston on the voir dire to Mr MacGregor's lack of preparation. That is not a safe inference, since Mr MacGregor cross-examined Mr Clugston effectively to establish the system administered by Mr Clugston at the Bankstown Sports Club. 102 Patsalis attributed his decision to dismiss Mr MacGregor to Mr MacGregor's statement that he needed Patsalis' assistance to get a point made through Mr Clugston. That statement does not establish that Mr MacGregor was incompetent; it was probably only an attempt to change the atmosphere in a manner favourable to Patsalis. And since the cross-examination was on the voir dire, not before the jury, any defects in it cannot have reduced Patsalis' chances of acquittal. Kehoe and Kendall 103 Patsalis criticised Mr MacGregor's cross-examination of Detective Kehoe and his failure to cross-examine Dr Kendall. His submissions, however, do not demonstrate either that Mr MacGregor committed any blunder or, if he did, that it prejudiced Patsalis. Jacob 104 Patsalis' criticism of Mr MacGregor's cross-examination of Detective Sergeant Jacob depends on repeated assertions of Mr MacGregor's unpreparedness. That proposition of fact has not been demonstrated. Nor, in the absence of evidence from Mr MacGregor, can it be said that he was not pursuing rational tactics. Patsalis also suggested a large number of questions which Mr MacGregor should have asked. Most of them appear to be open to valid objection. Caruso 105 Patsalis submitted that Caruso should have been cross-examined with a view to revealing that Spathis was more likely to have been standing near the victim's body at the place where it was found than Patsalis was. It might equally have assisted Spathis by demonstrating that one imprint near the body was made by Mr Caruso, not Spathis. It is hard in any event to see how Patsalis lost any chance of acquittal. The same is true of the suggestion that Mr Caruso should have been asked questions directed to showing that the area was a built-up residential area. Langford and Hull 106 Patsalis submitted that since counsel for Spathis cross-examined Detective Langford on whether video surveillance cameras existed at the K-Mart Store, while Mr MacGregor did not, the jury could have been left with the impression that Patsalis was sensitive about possible footage. 107 Patsalis also suggested that Detective Langford and Detective Hull should have been questioned about the time of purchases made on 11 April 1996 with a view to negating pre-planning and revealing that Patsalis had a clear conscience. 108 The lack of the questioning which Patsalis submitted ought to have been engaged in does not suggest that Patsalis lost any chance of acquittal. Other mistakes 109 Patsalis relied on various other supposed errors of Mr MacGregor, and, for example, on occasional statements by Mr MacGregor in the course of conducting questioning to the effect: "I made a mistake, I apologise" (336 line 26). Virtually every cross-examination contains minor "mistakes". No mistake has been shown to have caused Patsalis to have lost a chance of acquittal. Further evidence: Martinez statement 110 It is convenient at this point to consider two applications made by Patsalis to rely on further evidence. That evidence provides background to Patsalis' arguments about both Mr MacGregor and Mr Amor-Smith. 111 Patsalis attempted to tender for the consideration of this Court a statement of Mr Francisco Martinez dated 18 April 1996. He was a Senior Travel Consultant with Jetset Travel, Wynyard. His statement related to his dealings on 11 and 12 April 1996 with a person at that time known as Elizabeth Figueria, who at the time of the trial was Mrs Spathis. In April 1996 they were engaged and living together. His statement said: "While at work on Thursday the 11 April, 1996 about 10 or 11 am I received a phone call to check availability of a package over the weekend period of 13 and 14 April, 1996. This call was from a female, giving her name as Elizabeth. She said, 'I'd like to look into going up to the Gold Coast for two people over the weekend on one of your five night specials'. I said 'I can check availability of flights, but I'd have to get back to you regarding accommodation'. She said 'That's fine, can you get back to me something this afternoon'. I said 'Yes, can I have your particulars, so if there is anything available I can provisionally book it for you and you can advise me if it's suitable or not'. She said 'The names are Elizabeth Figueira and Alex Spathis'. I said 'Can I have a contact so I can get back to you?' and she said 'That's fine, its 3981230'. I said 'I'll get back to you this afternoon'. I then ended the call. I then made some inquiries and then called Elizabeth about 2 or 3 pm that day. I introduced myself and explained the alternatives that I had listed for her. I specifically remember her asking for the Moroccan Beach Resort. She said 'Can you look into the Moroccan for me, otherwise I take the Surfers Beachside or The Shrangi La Apartments'. I said 'I'll get back to you and you can decide'. The call then ended. Within half an hour I called her back letting her know that the Moroccan was unavailable. She then confirmed to me that she wanted to go ahead with the Shrangi La Apartments. I then gave her the costings and details of flights and accommodation and told her that I'd need payment by cash or bank cheque only, by 10am Friday morning. She said 'That's fine, I'll be in first thing Friday morning to pay for it.' About 9.30am on Friday the 12 April 1996 I was at work and Elizabeth Figueria came into the shop and gave me a total of $993.00 cash, which I then receipted and gave her an itinerary and confirmation. I then told her to come back within a ten minute period and I'd have her tickets ready. I requested no formal identification from Elizabeth, because it was a domestic booking and she paid by cash. She went away and then came back about ten minutes later. I then gave her the documents and she left. After taking the money I put it in my drawer, then within ten minutes Nagwa Kaldas came from upstairs in the office and took possession of the money after signing a receipt on the top right corner of the receipt that I had filled out. She then took the money away." 112 Patsalis said, without giving evidence on the point, that he was ignorant of the existence of Mr Martinez' statement at the trial. 113 The purpose of seeking to tender Mr Martinez' statement was not directly to demonstrate the incompetence of Patsalis' lawyers. Rather Patsalis submitted that the statement of Mr Martinez was relevant in establishing errors in the evidence of Mrs Spathis and Mr Stratikopoulos. The essential differences from which these "errors" were inferred were as follows. Mrs Spathis said that during the morning of 11 April 1996 she spoke to Mr Martinez "confirming some departure times" and said that her first contact was on 10 April 1996; Mr Martinez suggested not that he was confirming times on 11 April 1996, but was making initial inquiries on that day and that there had been no inquiry on 10 April 1996. Mr Martinez' statement suggested that the proposed holiday was not arranged prior to 11 April 1996, while Mr Stratikopoulos (Mr Spathis' business partner) said the holiday had been discussed with him "about four, five months, three months before" and that the holiday was planned to take place from Monday 15 April to Friday 19 April (the latter being the date of Mrs Spathis' birthday). 114 These arguments proceed on narrow differences between Mr Martinez' statement and Mrs Spathis' evidence. They also overlook the vagueness of Mr Stratikopoulos' evidence and thereby exaggerate its significance. They attribute excessive significance to the fact that a five day holiday from 13 to 17 April 1996 does not precisely coincide with Mrs Spathis' birthday on 19 April. 115 Mr Martinez' statement was not "fresh" evidence. It was either known to Patsalis or to his advisers at the time of the trial, or ought reasonably to have been known to them: the Crown informed this Court, without contradiction, that the statement of Mr Martinez was among the committal papers; that Patsalis' solicitor was informed that the Crown did not intend to call Mr Martinez at the trial; and that the Crown received no request to call him at the trial. Further, in the course of the trial the Crown mentioned, at a time when Patsalis was represented by Mr Amor-Smith, that it had evidence taken from a person at the travel agency with which Mrs Spathis had dealt. 116 Since the evidence is not "fresh" evidence, there is no point in admitting it unless it could lead to the quashing of the conviction, and it will not have this result unless the Court is "convinced that there has been a miscarriage of justice": R v Henry (1992) 28 NSWLR 348 at 351 per Loveday J, Priestley JA and Sully J concurring, citing Ratten v R (1974) 131 CLR 510 at 517-518 per Barwick CJ, McTiernan, Stephen and Jacobs JJ concurring. 117 Even if Mr Martinez' statement was "fresh" evidence, so far as it goes only to credit it is less likely to lead to a new trial: R v Zaidi (1991) 57 A Crim R 189 at 193 et seq per Priestley JA, Allen and Badgery-Parker JJ concurring. 118 Whether or not the precise rules governing the reception of further evidence on appeal, "fresh" or not, can be said to be entirely clear, and whether or not it is desirable that they be entirely clear, are not questions which it is necessary to examine in detail. That is because it is clear that even if the evidence is not "fresh", "the strength of the … evidence may in some cases be such as to justify interference with the verdict, even though that evidence might have been discovered before the trial": Gallagher v R (1986) 160 CLR 392 at 395 per Gibbs CJ. 119 Mr Martinez' statement lacks sufficient strength to raise the possibility of a miscarriage of justice within the meaning of s 6(1) of the Criminal Appeal Act 1912. That is not because it was not available. It is because it went to peripheral and marginal issues. The precise dealings between Mrs Spathis and Mr Martinez, and the precise question of whether the holiday was in fact planned and for how long would not have affected the conclusion to which the jury came in view of the strength of the direct evidence against Patsalis. If the question is whether, in the language of Mason CJ in Mickelberg v R (1989) 167 CLR 259 at 273, applied by this Court in R v Drummond and Domican (No 2) (1990) 46 A Crim R 408 at 419 by Kirby ACJ, Campbell and Studdert JJ concurring (which were both cases of "fresh" evidence), there was "a significant possibility that the jury acting reasonably would have acquitted the [accused] of the charge if the new evidence had been before it at the trial", the answer should be "no". Further evidence: production of police records 120 Patsalis indicated a desire to obtain production of certain computer records dated 12 April 1996 associated with the investigation into the murder of the victim. He described what he hoped to prove thus: "I will prove that no police inquiry was made on the computer system until well after 6.30pm on the Friday evening of 12 April 1996. In the court transcript and on the voir dires in particular where counsel continually cross-examined the police officers their in court testimony was that at about ten past six in the evening of 12 April 1996 that they received a telephone call from particular witnesses i.e. Mr and Mrs Jeffries who passed on the car registration of POZ-344 which was the vehicle of Mr Spathis. And in turn they used that information to find out Mrs Spathis' home address at Randwick and they specifically testified to these events as being true and correct. What I will be hoping to prove to the court are two matters: one is that no search was made until after 6.30pm on that evening. Two, that the in court testimony of the police officers was from the voir dires false and two particular police officers had in fact lied. Three, it then goes to the admissibility of Ex G and how it was illegally obtained and fourthly it will allow me to make further allegations that two witnesses' statements were manufactured in the police brief and I will be able to prove all that through those two documents." 121 Patsalis gave no satisfactory explanation for why he had taken no effective steps to obtain the documents in the twenty months that passed between his conviction and the hearing of the appeal. The Crown said it had not received any notice since the trial that Patsalis wanted the material included in the appeal papers. The Crown also said that the Registrar of this Court had warned Patsalis that all relevant material had to be before the Court by 2 July 2001. And the Crown pointed out that even if the police records recorded no call before 6.10pm, it would not follow that none had been made. None of these propositions was controverted by Patsalis. 122 Leaving aside the wholly unsatisfactory failure to bring this matter before the Court with appropriate speed and the fact that Patsalis evidently and unacceptably contemplated that the appeal could be adjourned as often and for as long as he desired, no substantive ground was made out for an adjournment of the appeal or for an order to be made under s 12 of the Criminal Appeal Act 1912. That is because the matter of whether Exhibit G was admissible was thoroughly investigated at trial. Even if the production of the documents sought might have showed that some part of the relevant police officers' evidence was mistaken, it was not shown how any part of the trial judge's reasoning in support of the admission of Exhibit G was flawed in such a way as to raise any reasonable possibility that the conclusion was wrong. 123 Further, even if further police records would reveal that Exhibit G was handed in by Patsalis at a time when one of the circumstances described in s 139(1)(a) or (5)(a), (b) or (c) of the Evidence Act 1995 existed, it is inconceivable that the trial judge would have exercised his discretion under s 138 against reception of the evidence. All the material factors bearing on the problem pointed towards admission. Alleged incompetence of Mr Amor-Smith: general 124 Before examining the detail of Patsalis' complaints about Mr Amor-Smith's alleged incompetence, some preliminary matters should be borne in mind. 125 When Patsalis was being cross-examined by counsel for Spathis on 24 August 1999, he was asked, and he answered the following question: "Q. You sat here and had your counsel put your case with great care and thoroughness, day in and day out. He spent two days taking you through your account, didn't he? A. And I did all the preparation in relation to a lot of works sir because I don't have anyone to just jump in and take control of the situation." No doubt Patsalis did a lot of preparation, but he did not dissent from the description of Mr Amor-Smith as having shown "great care and thoroughness". Further, the trial judge described Mr Amor-Smith's written submissions on sentence as being "helpful". There are other instances where the trial judge praised Mr Amor-Smith's efforts, though he, like the other counsel, was also subjected to observations of an apparently critical character from time to time by the trial judge. 126 So far as Mr Amor-Smith was attacked by Patsalis for not having prepared the case, the author of this state of affairs was Patsalis himself. It flowed from his decision to dismiss Mr MacGregor, which was foolish at best. It may be that if the possibility of a miscarriage of justice emerged, it would be no answer to a challenge to the conviction that that possibility was the result of the accused's own doing. But an issue would then arise whether what Patsalis did was only foolish or was part of a more sinister tactical ploy. Some support for the view that it was a tactical ploy might be afforded by Patsalis' dismissal in turn of Mr Amor-Smith, and by his behaviour in the days before final address, in which much time was frittered away in vain inquiries about Patsalis' employment records. But it is not necessary to investigate that issue. 127 Patsalis criticised Mr Amor-Smith's lack of preparedness on Monday 2 August 1999. That is an invalid criticism, since Mr Amor-Smith had only been briefed the previous Friday. Mr Amor-Smith's account of what he had done is entirely consistent with having spent the whole weekend on the case. So far as Patsalis made criticisms of Mr Amor-Smith's lack of preparation and knowledge of the case thereafter, they have not been made out. 128 Patsalis submitted that Mr Amor-Smith's account of his dismissal on 2 September 1999 was "dramatic and unusual which created unfairness and prejudice" to Patsalis. Any such outcome was entirely self-induced. It was not open to Mr Amor-Smith simply to depart in meek silence without some explanation to the trial judge for his departure. In any event, Mr Amor-Smith account was given in the absence of the jury. 129 Patsalis complained that there was a failure to ask the trial judge for a direction to the jury not to speculate about the reason for the termination of the retainer of a kind similar to that which the trial judge gave after Mr MacGregor was dismissed. Yet it was Patsalis who failed to apply for the direction, not Mr Amor-Smith. Mr Amor-Smith's role had ceased at 3.30 pm on 2 September 1999. 130 Patsalis pointed out that the trial judge said that Mrs Spathis, from Spathis' viewpoint, "got off reasonably lightly, in terms of cross-examination" by Mr Amor-Smith. This was said to be a criticism by the trial judge of Mr Amor-Smith. Yet in the same breath the trial judge indicated that that statement was made without "in any way disparaging Mr Amor-Smith, who was plainly doing his best and doing a professional job". 131 Patsalis complained that Mr Amor-Smith failed to put questions in accordance with instructions. It is for counsel to form a judgment as to what questions to ask. Non-compliance with a client's instructions about the lines to be taken in cross-examination is not evidence of incompetence, let alone prejudice or a miscarriage of justice. Complaints about Mr Amor-Smith's examination in chief of Patsalis 132 Mr Amor-Smith was said by Patsalis to have been flagrantly incompetent for not verifying "the accuracy and truthfulness" of Patsalis' record of interview. By this Patsalis meant that he had not been asked in terms while testifying near the end of his evidence in chief on 18 August 1999 whether everything he said in his record of interview was true. But as the trial judge said when the matter was discussed on 19 August 1999, Mr Amor-Smith's questions achieved the same ultimate result as if he had asked Patsalis to verify the record of interview, namely putting the record of interview in evidence for all purposes by asking Patsalis to correct anything that was inaccurate. And the record of interview was explicitly stated to be true and correct, but for some mistakes, in further evidence in chief given by Patsalis on 19 August. If there is any error here, it was certainly not prejudicial. 133 Patsalis then submitted that Mr Amor-Smith should have given him an opportunity to point out the inaccuracies, particularly the important inaccuracies, in the record of interview; an opportunity to explain why they occurred; and an opportunity to modify and correct the inaccuracies. Yet when the matter was dealt with in the additional evidence in chief given by Patsalis, Mr Amor-Smith repeatedly gave Patsalis opportunities to correct inaccuracies. It was for Patsalis, who was giving the evidence, not counsel able to do no more than elicit it by non-leading questions, to identify inaccuracies. Further, it is far from clear that evidence in chief explaining why the inaccuracies occurred would, strictly speaking, have been admissible. Arguably questions directed to that would have been questions seeking evidence which "merely bolsters the credibility of a party": Palmer v R (1998) 193 CLR 1 at 21 per McHugh J. "Only facts in issue should be led in chief. A witness may not lift himself by his own bootstraps to enhance his credit": R v Connelly [1991] 2 Qd R 171 at 173 per Thomas J, Dowsett J concurring. Arguably the evidence in chief suggested would have been a "premature attempted rebuttal of [a] challenge", which is a practice which "should cease": at 173-174. Patsalis submitted that he suffered prejudice in not being assisted in understanding "his possible rights particularly in connection with any compromise of the case". The reference to a compromise, which is not unique in Patsalis' submissions, is totally unrealistic. Patsalis submitted that the matter was dealt with on the run, without him having had the opportunity to reflect on matters. Yet he had just given lengthy evidence in chief on the twenty-ninth and thirtieth day of the trial: he had had every opportunity to reflect on the errors in his record of interview. 134 Patsalis submitted that Mr Amor-Smith's examination in chief of him was equivalent to cross-examination, it being repetitive and intimidating, despite the "precision" of Patsalis' answers. Yet in fact it was largely Mr Amor-Smith's persistence which enabled clarity to be brought into those answers. Complaints about Mr Amor-Smith's failure to object to questions in cross-examination of Patsalis 135 Mr Amor-Smith was criticised for not objecting to questions asked by counsel for the Crown and Spathis of Patsalis inviting his assent to the proposition that other witnesses were giving "deliberately misleading" or "false" or "made up" or "completely made up" evidence, or "were lying" or "lied". Among other cases, Patsalis cited R v Foley (1998) 105 A Crim R 1 at 8 for the proposition that counsel should not invite a witness to answer by commenting on the truthfulness of other witnesses. But he did not mention the following statement by the Queensland Court of Appeal in that case: "There must of course be a certain degree of tolerance of loose practices in cross-examination, and such errors commonly occur without impairing overall the receipt of a fair trial by an accused person". 136 Patsalis submitted that the use of the inadmissible questions "forced [him] to retract his evidence, in order to preserve his credit and credibility and to prevent the cross-examination from escalating and continuing along the same lines. 137 So far as the questions merely asked Patsalis to agree that if his evidence was correct, that of other witnesses was incorrect, they were not impermissible. That is merely a strong way of identifying precisely what the evidence of Patsalis was in relation to that of other witnesses. Contrary to Patsalis' submissions, the questions did not go so far as to seek Patsalis' views on why the other witnesses were lying. Patsalis submitted that some questions by the Crown "by implication" asked the question "Why would witnesses be in conflict with Patsalis?" This is incorrect. The closest the questioning came to a question of that prohibited kind is one asked when differences between Patsalis' evidence and that of the Jefferis family were being explored. At 1575 line 6-10, the evidence was: "Q. You've got no reason you can suggest to the court that they would completely make up their evidence, have you? A. That's not what I'm referring to when I say it's totally false." That question asked why the Jefferis family might be lying but the mischief was removed by Patsalis' contention that they were not. At 1660 lines 21-39 the following appears: "Q. Would you agree with me that it is impossible to reconcile the two versions, in the sense your version is very different from their version? A. Yes I don't deny saying that sir. Q. Would you agree with me that it is impossible to reconcile the two versions, in the sense that your version is very different from their version? A. Yes it is different sir. Q. Quite different, isn't it? A. It is sir. Q. Have you got any explanation for that now? A. The only thing that I can think of sir is in relation to perhaps they may have seen me when I came out of the car when I was parked behind the red car. I don't know. When I was driving up that road, I certainly don't recall seeing a car as is in the diagram that we saw of Mr and Mrs Jefferis, so – they gave their evidence and as you stated earlier they are independent. We have never met so they wouldn't hold a grudge against me, so, I don't know. I have no explanation for that." To ask for an "explanation" in one sense invites the possible answer "They are lying and I am not". That was not an answer which Patsalis gave. Further, Patsalis' submission that in final address the Crown asked "Why would the Jefferis family lie?" is also quite baseless. There were questions in which Patsalis was asked to accept characterisations of the evidence of other witnesses as being deliberately untrue. In general that is a form of questioning to be avoided. But Patsalis has not demonstrated the proposition that he was forced to retract his evidence or that the style of questioning "pressured and bullied" him. And he has certainly not demonstrated that the questioning not objected to has caused any prejudice. Further, non-objection may well have been seen as a prudent tactic, and that perception has solid justification. Triers of fact often do not like to see excessive protectiveness of party-witnesses on the part of the counsel calling them. Trial judges often resent the flow of cross-examination being interrupted by objections even if they have some technical force because they may be seen as an attempt to rest the witness or to hint at particular answers. Successful resistance by a party-witness, unassisted by helpful objections, to an aggressive cross-examination can improve that party-witness's acceptability in the eyes of triers of fact. These are all valid tactical considerations which may well have influenced Mr Amor-Smith's approach. 138 The same answer invalidates Patsalis' complaint that Mr Amor-Smith failed to object to questions which were, or which Patsalis submits were, inadmissible by reason of s 41 of the Evidence Act 1995. 139 In general Patsalis submitted that the Crown's cross-examination of him was impermissible to the extent that this caused a miscarriage of justice. Any departure by the Crown from what the law strictly requires of a cross-examiner was not sufficiently prejudicial to the interests of Patsalis to amount to appellable error or to create any risk of a miscarriage of justice, whether considered by itself or with any other complaint. Re-examination by Mr Amor-Smith 140 Patsalis submitted that Mr Amor-Smith failed to clarify ambiguities which had been left unexplained and incomplete during the cross-examination which counsel for the Crown and Spathis conducted of Patsalis. In large measure Patsalis submitted that much of this re-examination could have been conducted "by simply picking up the appellant's record of interview and addressing the areas in question". This is the same record of interview, of course, which Mr Amor-Smith was criticised for failing to have corrected in the evidence in chief. However, since the contents of the record of interview were in evidence in relation to Patsalis because the Crown had tendered it, and in evidence for all purposes by reason of Patsalis' adoption of it in the witness box, it is hard to see how any evidentiary gap was created which might have led to a miscarriage of justice. Much of the suggested re-examination would not have been permissible, because the cross-examiners gave Patsalis an opportunity to give explanations and because in many instances there was nothing to clear up in the sense that any re-examination would merely have been an invitation to Patsalis to change his testimony. A large part of the suggested re-examination would have been an invitation to Patsalis to give evidence which he had opportunities to give in chief or in cross-examination, and which he often had given (for example, evidence about his fatigue while being interviewed by the police). Further, many of the points which Patsalis submits should have been cleared up were trivial to a degree. 141 A failure to re-examine is not necessarily a sign of incompetence. It can flow from a conscious and sensible decision based on the desire to reduce forensic damage. A lengthy re-examination can be a tribute paid to cross-examining counsel for the latter's great success in cross-examination – a tribute which it can be unwise to pay in the presence of the trier of fact. 142 In no respect has any possibility of a miscarriage of justice arising from defective re-examination been demonstrated. Mr Amor-Smith's capacity to argue legal submissions 143 Patsalis submitted that Mr Amor-Smith did not satisfactorily advance arguments of law to the trial judge. Many of the examples given relate to the period just after Mr Amor-Smith came into the case. Patsalis submitted that he was prejudiced by Mr Amor-Smith's "ineptness and inefficiency in matters of law". Mr Amor-Smith's knowledge and application of the law were also said to be "deficient, appalling and incompetent in the extreme". 144 These submissions should be rejected. A perusal of Mr Amor-Smith's contributions to legal argument does not reveal either that they were incompetent (in particular, given the time at which they were made) or that they were likely to create any possible miscarriage of justice. Patsalis' submissions fail to distinguish between the proposition that some of Mr Amor-Smith's arguments failed and the proposition that Mr Amor-Smith was incompetent. Mr Amor-Smith's failure to seek adjournments 145 Patsalis submitted that Mr Amor-Smith should have sought an adjournment or adjournments soon after he came into the case to enable him to prepare it. It is highly unlikely that the trial judge would have allowed any substantial adjournment in view of the terms of what he said to Mr Amor-Smith on 2 August 1999. Mr Amor-Smith's admissions 146 To some extent Patsalis relied on various self-deprecating remarks Mr Amor-Smith made. For example, at 2015 line 48 he said he had been trying to catch up since he came into the case. That and other similar remarks are understandable, but they do not indicate that Patsalis was not being professionally served by Mr Amor-Smith or that any possibility of a miscarriage of justice was generated. They are no more significant than similar remarks which Mr MacGregor had made. Non-separation of trials 147 Patsalis propounded arguments in support of a supplementary ground of appeal that the trial judge's failure to separate the trials led to unfairness arising from the admission of prejudicial evidence which was otherwise inadmissible. To some extent the arguments overlap with arguments based on the supposed incompetence of both Patsalis' counsel. 148 So far as Patsalis' arguments contended that the trial judge should have ordered separate trials from the outset, they were all put to and considered by the trial judge in his reasons for judgment delivered on 30 June 1999 in which he rejected Mr MacGregor's application on behalf of Patsalis for separation: [1999] NSWSC 649. Those reasons for judgment are a model of their kind. They are adopted as part of these reasons for judgment. It is only necessary to add, in particular, that it cannot be said that the evidence against one accused was significantly weaker than and different from the evidence against the other. 149 Patsalis submitted that even if the trial judge's initial decision was correct, it should have been reconsidered when Spathis gave evidence and swore to the truth of his record of interview. Patsalis has not, however, demonstrated that any greater prejudice then arose than that which the trial judge had already taken into account. Further, an application for separate trials at that stage would mean that at least one trial would have to start afresh even though the very lengthy hearing was nearly over. That is not an outcome which the trial judge could have been expected to have accepted with any equanimity. Accomplice warning 150 Patsalis submitted that the trial judge erred in giving an "accomplice warning" to the jury pursuant to s 165(1)(d) of the Evidence Act 1995, and that Mr Amor-Smith was incompetent in permitting this. Far from this being an error, if Mr Amor-Smith had not permitted it to happen, and if the trial judge had not given the warning, an appeal brought by Spathis might have succeeded, subject to the application of the proviso. Warning about Patsalis' evidence 151 Patsalis submitted that when the trial judge warned the jury, near the end of his evidence-in-chief, to keep an open mind about the issues, he erred. At worst that warning appears harmless; at best it was necessary from Spathis' point of view. Alleged failure of Mr Amor-Smith to cross-examine Spathis' wife, uncle, father and business partner 152 Patsalis submitted that his credit was the most vital issue in the case. He submitted: "Counsel ought to have protected the appellant's credit by cross-examining critical witnesses on the primary facts associated with the essential elements of the eventual case by one, challenging on oath the evidence of various witnesses to determine their 'mettle under attack', two, challenge the corroborative evidence, three, to highlight and illustrate the various inconsistencies and contradictions, four, to challenge the explanations or qualifications made by a witness, five, to contradict a witness's evidence especially when it related to or concerned directly the case of the appellant … ." 153 To some extent this submission was supported by authorities on the rule in Browne v Dunn (1893) 6 R 67. That rule is a rule intended to protect the party whose witness was not cross-examined, and also to protect that witness; it is not intended to protect the party represented by the counsel who does not cross-examine. However, in general the description of counsel's duty as propounded by Patsalis may be accepted. The question is whether any significant breach of it took place. Mrs Spathis 154 Patsalis submitted that Mr Amor-Smith should have cross-examined Mrs Spathis about precisely when she withdrew $1,000 from an automatic teller machine to pay for the holiday she and Spathis were planning to take on the Gold Coast. This was said to have been a "highly relevant" issue "as it allows one to further draw a number of inferences upon such matters as time and telephone calls which originated between the two on Thursday 11 April 1996". Whether this refers to calls between Mrs Spathis and Spathis or Mrs Spathis and Mr Martinez, Patsalis never explained why it was highly relevant and what significance the supposed inferences would have had. 155 Patsalis criticised Mr Amor-Smith for not cross-examining Mrs Spathis on her evidence that at 4.40pm on Thursday 11 April 1996, she called Spathis; asked him where he was; and was told he was parked outside Bankstown shopping centre reading the Trading Post since he was looking for a car part. She testified that they talked about the holiday and he asked what she wanted for her birthday. She testified that they discussed whether she would attend The Three Swallows Hotel that evening and that she would call him back at 7pm to confirm this. 156 Patsalis drew attention to the fact that in her statement of 12 April 1996 she said Spathis "was apparently doing some running around for the holiday in between lunches at the bistro [run by Spathis and Mr Stratikopoulos at The Three Swallows Hotel] and re-opening". Patsalis submitted that this was surprising since she had not yet informed Spathis she had provisionally booked the Gold Coast holiday, and one would have expected her to have told him what she had done in the 4.40pm telephone conversation. Yet the call only lasted one minute and twenty-five seconds, which was insufficient to pass on all the details. 157 Patsalis submitted: "As has been previously discussed Mrs Spathis' prior-statements make no reference of Mr Spathis having parked outside the Bankstown Shopping Centre, that he was reading the Trading Post looking for car parts. There is no discussion recorded between the two that Mr Spathis asked his wife what she wanted for her birthday, and that they made arrangements for her to go to the Three Swallows Hotel that evening. Counsel failed to put or even challenge the conversations in this call, on the basis that they were recently invented to accord with the objective facts ie the telephone records (Exhibit BB), the records of interview and in particular that of her husband and ultimately upon the proof of evidence of her husband to which she was privy." 158 However, Mr Amor-Smith may well have thought the differences immaterial. He may have thought that to allege that Mrs Spathis was "privy" to anything improper or was lying, leaving aside the ethical question of whether he had any instructions or adequate material on which to do this, may have been adverse to Patsalis' interests. Further, to put that allegation might attract the reception under s 108(3)(b) of the Evidence Act 1995 of prior consistent statements of Mrs Spathis, which might have worsened Patsalis' position by enhancing Mrs Spathis' credibility. This was a matter flagged in argument both before the trial judge's s 38 rulings and after Mrs Spathis left the witness box on 5 August 1999. That supports the conclusion that Mr Amor-Smith may well have had this problem in mind. Whatever Mr Amor-Smith thought, however, Patsalis has not shown any possibility that because Mr Amor-Smith cross-examined in the way he did, as distinct from the way which Patsalis now says should have been employed, a miscarriage of justice was caused. 159 Patsalis submitted that Mr Amor-Smith should have challenged Mrs Spathis' evidence that while she and her husband were driving into the city on the morning of Friday 12 April 1996 to pay for their Gold Coast holiday tickets, he suggested that they not do so that day, she broke down in tears and told him he was "really stressed out". Patsalis submitted that this was not mentioned in her statement of 12 April 1996 or her record of interview. Patsalis submitted: "Mrs Spathis' in-court testimony could be characterised as quite a dramatic and an emotional breakdown by her whilst in the car with Mr Spathis comforting her laying the foundation for the submission later on that he was troubled about what had happened." Other differences were relied on. But it was open to Mr Amor-Smith to decline to cross-examine on the basis that Spathis' distress in fact supported Patsalis' case. 160 Patsalis also submitted that Mr Amor-Smith "failed to put to Mrs Spathis that she was lying to assist her husband with his case, tailoring her evidence to fit the objective facts." Patsalis pointed to the fact that at 8.44pm on 11 April 1996 Spathis rang his wife from the Ryde-Epping area. In that call he falsely said his car had broken down and he was waiting for a tow. Mrs Spathis timed that call at about 8.30pm in her testimony in chief, and at 8.44pm in her cross-examination. She explained that improved specificity by having had access to telephone company records. Patsalis pointed out that in her statement of 12 April 1996 she had timed the call at 7pm. This difference by itself is scarcely significant. However, Patsalis said that in her testimony, unlike her 12 April 1996 statement, her husband sounded as though he was in a state of anxiety. Patsalis said this reflected badly on him, and that Mr Amor-Smith failed to notice this. However, in the course of argument on 4 August 1999 during the Crown's first s 38 application, he did notice it (924 lines 34-38). He said he would return to her statement of 12 April 1996 (924 line 53). He did so (955 line 49-961 line 35). In the course of the Crown's second s 38 application on 5 August 1996 counsel representing the Crown noted that while Mr Amor-Smith drew attention to differences between Mrs Spathis' testimony and her statement, he did not cross-examine in detail about it. The fact is, however, that Mr Amor-Smith did expose to the jury many differences between what Mrs Spathis said in her 12 April 1996 statement and what she said in chief. This left it open to the jury to draw inferences about her bias. His instructions may not have permitted him to do more. Even if they did, he may have thought a frontal assault on Mrs Spathis imprudent, and likely to cause the jury to sympathise with her husband and become prejudiced against Patsalis. That tactical approach would be understandable. Mr Amor-Smith evidently had some tactical plan in mind, and he was interrupted while endeavouring to explain it to the trial judge (981 lines 3-24). But in any event no chance of any miscarriage of justice exists, because the Crown prosecutor later cross-examined Mrs Spathis on the inconsistencies. He put to her the accusations of embellishment and lying in order to assist her husband which Patsalis criticised Mr Amor-Smith for not putting. She denied them as put by the Crown prosecutor, as she no doubt would have denied them if they had been put by Mr Amor-Smith. 161 Patsalis attacked Mr Amor-Smith for not cross-examining Mrs Spathis about the clothing Spathis was wearing when he came home on the night of 11 April 1996. Few of the suggested questions would have assisted Patsalis' case and in any event Patsalis could have suggested them to Mr Amor-Smith if they had seemed appropriate at the time. Mr Stratikopoulos 162 Patsalis submitted that Mr Stratikopoulos said he was happy when phoned by Spathis to say he would not be coming to work on the night of 11 April 1996 at the bistro in The Three Swallows Hotel which the two of them ran, because if Mr Stratikopoulos worked that late shift, he could have the nights of Friday 12 and Saturday 13 April off. This was contradicted, said Patsalis, by Mrs Spathis' 12 April 1996 statement indicating that she travelled to pick up her husband from work at 9.30pm on 12 April, which would not have been possible if Mr Stratikopoulos was not on duty to work the late shift. Yet there are possible explanations for the difference between Mr Stratikopoulos' expectation on Thursday night of what would happen on Friday night and what actually did happen on Friday night. This and similar points made by Patsalis on peripheral issues do not reveal the risk of a miscarriage of justice. 163 Another area of Mr Stratikopoulos' evidence which Patsalis said should have been the subject of cross-examination was that which related to Patsalis' boasting in The Three Swallows Hotel in the presence of Spathis about his contacts with police and use of them by Patsalis to enable Spathis to regain his licence, to his flashing of a bank book to Mr Stratikopoulos and Spathis revealing an amount of over $0.5 million in the bank, and to his showing of a car boot full of cigarette cartons to Spathis. Before Mr Stratikopoulos gave evidence for the Crown, counsel for Spathis foreshadowed that he would be cross-examining to elicit that evidence in order to establish "a foundation for a belief on [Spathis'] part that Mr Patsalis was a person who had contacts, who could arrange various things relating to cigarettes", as the trial judge said at 855 lines 38-40. This was in order to rebut a Crown contention that the absence of any cigarettes was adverse to the accused. 164 Patsalis' submission assumes that Mr Amor-Smith was given instructions that these allegations were incorrect and that he failed to cross-examine Mr Stratikopoulos to suggest they were incorrect. 165 There are several problems with the submission, apart from the lack of sworn evidence that the instructions were given. 166 First, as Patsalis' submission acknowledged, "Mr Stratikopoulos had no personal knowledge upon most of the matters to which he testified". By that Patsalis meant that though Mr Stratikopoulos claimed to have heard and seen what he said Patsalis did in his presence, he did not know the truth of the underlying suggestions Patsalis was making. He could not be cross-examined about those suggestions. 167 Secondly, so far as Mr Stratikopoulos gave evidence of the regular presence of Patsalis at The Three Swallows Hotel, it was confirmed by Patsalis' own evidence in chief (1317-1318). So far as Mr Stratikopoulos said Patsalis flashed his bank book and represented that he had over $0.5 million on deposit, Patsalis said the same in his evidence in chief (1326-1329), his record of interview, and in Exhibit G. So far as Mr Stratikopoulos suggested that Patsalis gave Spathis the impression he had valuable police contacts, Patsalis had admitted this in his record of interview (questions 61 and 68). So far as the evidence about a car boot being full of cigarette cartons was concerned, Mr Stratikopoulos was only describing what Spathis told him. Mr Stratikopoulos did not claim that he himself had seen the cigarettes. The appropriate person to cross-examine was Spathis, and when the time for cross-examining Spathis came, Patsalis was representing himself after the dismissal of Mr Amor-Smith. 168 Patsalis complained that Mr Stratikopoulos' evidence that the two knives used in the killing, Exhibit AC, were not of a type to be used by the bistro should have been the subject of cross-examination along the following lines: "1. Counsel failed to put to Mr Stratikopoulos that Exhibit AC were in fact knives used by them in their bistro? 2. That such knives were stuck up on the wall near the knife rack? 3. To challenge Mr Stratikopoulos that they had indeed bought knives whilst Mr Spathis and he ran the bistro? 4. To put to Mr Stratikopoulos what would your taxation records filed at the Australian Taxation Department reveal in respect to purchasing knives? 5. Counsel failed to put to Mr Stratikopoulos questions referable to the Bistro. a) Was it his usual practice to allow patrons in the bistro? b) Why it was that the appellant had unrestricted access to the bistro? c) To his knowledge whilst present how many times over the two year period had the appellant been inside the bistro? d) To describe the layout of the bistro, particularly where the knives were 'struck up' on the tiling and where the knife rack was situated? e) The assistance provided to him and to Mr Spathis whilst they were busy. f) The various duties and tasks performed by the appellant on their behalf in respect to the shopping? g) Mr Stratikopoulos' knowledge of Mr Spathis attending The Bankstown Shopping Centre, for shopping purposes." 169 This submission reveals how inconsequential the supposed deficiencies in Mr Amor-Smith's cross-examination were. The questions proposed veer between the unanswerable, the irrelevant and the harmful. Under cross-examination Patsalis said that had he been cross-examining Mr Stratikopoulos, he would have cross-examined about the knives, but that is highly questionable. He could have asked Mr Amor-Smith to do so. Mr Amor-Smith successfully obtained leave to cross-examine Mr Stratikopoulos further (896) some time after Mr Amor-Smith's first cross-examination of Mr Stratikopoulos had ceased. 170 Patsalis complained that Mr Stratikopoulos' testimony introduced into the evidence the proposition that Patsalis was a former police officer. That was the result of a considered decision of the trial judge. There was nothing more Mr Amor-Smith could have done than he did. For Mr Amor-Smith to have cross-examined Mr Stratikopoulos about it would have worsened matters from Patsalis' point of view. When the Crown prosecutor dealt with aspects of his training at the Police Academy, Mr Amor-Smith argued against admissibility: his opposition failed, but again there was no more he could have done. 171 Patsalis criticised Mr Amor-Smith for not cross-examining Mr Stratikopoulos about the fact that Patsalis stopped coming to The Three Swallows Hotel. Mr Stratikopoulos only gave evidence about the time, not about the reasons. This conformed with a ruling of the trial judge: Mr Amor-Smith could not have cross-examined without contravening that ruling, and it was a ruling which the trial judge had made in the interests of Patsalis. 172 Patsalis also submitted that Mr Amor-Smith should have cross-examined Mr Stratikopoulos about his knowledge of Patsalis' debts to Spathis. The existence of these debts was common ground, readily admitted by Patsalis. A lack of cross-examination on the point was not adverse to Patsalis' interests. 173 Any deficiency in Mr Amor-Smith's cross-examination of Mr Stratikopoulos is readily explained by the fact that Mr Stratikopoulos gave evidence on Tuesday 3 August. It was only on Monday 2 August that Mr Amor-Smith had announced his appearance. He had been granted an adjournment only until 3 August. The Crown said on 2 August that for the next one to one and a half days witnesses relating only to Spathis, not Patsalis, would be called. That prediction was not fulfilled, because though the first two witnesses that day were in that category, as the Crown frankly conceded at 854, the third–sixth witnesses were not, and nor was the seventh, Mr Stratikopoulos, or the eighth, Mrs Spathis. Admission of Exhibit G 174 Patsalis mingled submissions complaining about the misuse by counsel for the Crown and for Spathis of Exhibit G and about Mr Amor-Smith's failure to object to this misuse. 175 Spathis in his appeal complained about the use of Exhibit G as relationship evidence. The arguments advanced on his behalf were, mutatis mutandis, also advanced by Patsalis. Those arguments, as advanced by Patsalis, should be rejected for the reasons given by Carruthers AJ in relation to Spathis. In particular, the trial judge ruled carefully on the limited use to be made of those parts of Exhibit G that did not touch directly on the events surrounding the crime and gave careful directions about Exhibit G. The cross-examination to which Patsalis says Mr Amor-Smith should have objected remained within the trial judge's rulings: in particular, it went to admissible relationship evidence, not inadmissible evidence in the nature of similar fact evidence. Failure of Mr Amor-Smith to attack Spathis' character 176 Patsalis submitted that when counsel for Spathis elicited from Detective Sergeant Jacob the fact that after inquiries were made about Spathis, it was found that no matters were known against him, Spathis threw away his shield. Patsalis submitted "Mr Spathis having raised his character at trial, it afforded counsel the opportunity to challenge and to discredit the co-accused on his character." 177 Three items of discreditable behaviour were referred to. 178 The first related to a mobile phone. Patsalis submitted that Mrs Spathis should have been cross-examined to elicit the fact that mobile phone number 0419444766 was connected in her name but was used by both her and her husband; and that they found it a month or two before 12 April 1996 in the toilets at Coogee. Patsalis submitted that she should have been asked" "1. Was any attempt made to take the phone to the police? Was it ever contemplated to do so? Why not? 2. In your statement you state 'We found it', who actually found the mobile telephone? 3. Was it ever attempted by you or your husband to call the original owner to return the mobile phone? 4. How was it possible for you to activate the phone? 5. You needed to remove the initial owners phone card chip from the back in order to have the phone activated? 6. Generally such behaviour is dishonest." (Patsalis also incidentally submitted: "Counsel having come into the case quite late could not appreciate the relevance and importance of the Coogee area. Had counsel's knowledge been of the required level, counsel would have been required to ask specific questions about the Coogee Bay Hotel, Coogee Beach, the distance between their residence at 18 St Paul Street, Randwick and Coogee Beach. How often it was that Mr and Mrs Spathis frequented Coogee and for what purpose? Such questioning would be later used to accord with the appellant's version of events." But Patsalis did not explain how.) 179 The second item related to a car which Spathis said in his record of interview had been in his possession for seven or eight months but had not been registered. Patsalis submitted that Mr Amor-Smith should have cross-examined "Mrs Spathis about her husband buying and selling … cars which were never registered in his name." 180 The third item was put thus: "Counsel also failed to challenge Mrs Spathis upon her historical recollection of Mr Spathis' anti-social behaviour. (Her knowledge of Mr Spathis' past ie rock and roll bands, a girlfriend who was addicted to drugs who played in the band etc)." 181 The possession of an unregistered car is not unlawful. Only its use on the road is. Participation in rock and roll bands is not of itself discreditable. The circumstances in which having as one's girlfriend a drug addict who played in a rock and roll band would affect one's good character, particularly one's character as far as testimonial credibility is concerned, would have to be precisely defined and are likely to be somewhat confined. And while dishonest dealing in mobile telephones is not creditable, it is very likely that the trial judge would have rejected questions directed to Mr Spathis in the terms identified either in the exercise of his discretion under s 135 or in the exercise of his duty under s 137 of the Evidence Act 1995. Even if the questioning had been permitted, Mr Amor-Smith, had he turned his mind to it, which is unlikely in view of the far-fetched and indeed pointless nature of Patsalis' suggestions, would have formed the view that the questioning would have been counter-productive, since it was likely to increase jury sympathy for Spathis and reduce it for Patsalis. 182 It is noteworthy, incidentally, that Patsalis never cross-examined Spathis on the three matters he contends Mrs Spathis should have been cross-examined on. That shows that this thought of Patsalis is no more than an afterthought. Mr Amor-Smith's failure to call witnesses to contradict Mr Stratikopoulos and Spathis 183 Patsalis submitted that Mr Amor-Smith should have called witnesses to contradict Mr Stratikopoulos and Spathis. He did not, however, identify them (apart from Mr Aroney, Operational Manager of The Three Swallows Hotel). Nor did he identify the subject-matter of their evidence, except for citing a reference which Mr Amor-Smith made to "several witnesses to be called in relation to Mr Patsalis being at The Three Swallows Hotel in the bistro area during 1996" before Patsalis' case closed (see 2002 lines 23-25; see also 1608 lines 43-45, 1613 lines 6-17 and 1871 lines 3-10). After 26 August 1999 they were not mentioned again before the case did close. Patsalis has not established either by direct submission to this Court or by cross-reference to what Mr Amor-Smith said how the failure to call any evidence of this kind created any possibility of a miscarriage of justice. The examples which Patsalis gave are peripheral or have been dealt with earlier or both. Mr John Spathis 184 Patsalis submitted that Mr John Spathis was important because he was the supplier of the cigarettes to be purchased by the victim, because his name was recorded as being involved in the cigarette business in the victim's letter to be opened after 11pm on 11 April 1996 (Exhibit AX) and because on 12 August 1999 the jury asked to see a transcript of his cross-examination on 11 August 1999. Patsalis submitted that had a "detailed and precise cross-examination" of Mr Stratikopoulos and Mr Spathis taken place, it would have illustrated "how the witnesses weaved and tailored their testimony to accord and fit with the objective facts", and "the means and lengths to which the wife and person friend/business partner were willing to lie, embellish, tailor and manufacture their testimony …". Patsalis then submitted that this in turn: "would have laid the foundation for the jury to be more diligent when assessing and evaluating the evidence of other family members of Mr Alexios Spathis and in particular the evidence of Mr John Spathis. It would also allow counsel a foundation upon which he would later be able to use whilst cross-examining Mr John Spathis." However, Patsalis did not demonstrate that any cross-examination of Mr John Spathis which did not take place would have created any greater possibility of acquittal. 185 Mr Amor-Smith was also criticised for not making an application under s 106(a) of the Evidence Act 1995: but Patsalis did not identify the evidence of bias or motive for untruthfulness to which the application would have related. 186 Mr Amor-Smith was criticised for not cross-examining Mr John Spathis about lending $5,000 to Spathis, putting this line of questioning to Mr Anastasios Spathis, and having to have Mr John Spathis recalled. No prejudice was caused. The proposition that Spathis borrowed "from his father, sister and other relatives" derives from Patsalis' record of interview. Spathis' father denied not only a $5,000 loan but a $1,000 loan. Mr John Spathis, when he was asked about the $5,000 loan, denied it. The fact that before this Patsalis was asked one question in cross-examination by Spathis' counsel to the effect that Mr Amor-Smith had not questioned Mr John Spathis about the loan cannot have had any impact on the jury's assessment of Patsalis' credibility, particularly after Mr John Spathis' recall. 187 There were numerous subjects on which Patsalis said Mr Amor-Smith should have cross-examined Mr John Spathis. It has not been shown that any of this cross-examination would have created the possibility of acquittal. Spathis' exploitation of Mr Amor-Smith's failure to question witnesses 188 Patsalis submitted that during the summing up counsel for Spathis continually asked the trial judge to remind the jury that various witnesses were not challenged on particular matters. Some of these requests were declined because the points were trivial. Other contentions were rejected (e.g. the contention that Patsalis should not have submitted that Mrs Spathis was trying to do her best for her husband) because she had been given an opportunity to deal with the proposition that she was colouring her evidence to assist her husband. No prejudice in this respect has been shown to flow from the nature of Mr Amor-Smith's cross-examination which was either defensible or, as the trial judge specifically noted during the arguments which occurred in the course of the summing up in relation to Mrs Spathis, explicable by his extremely recent arrival in the case. Exhibit 7B 189 Patsalis submitted that Mr Amor-Smith failed to deal properly with evidence of a call made on 8 March 1996 at 2.23pm by the victim from the Parramatta area to The Three Swallows Hotel. Patsalis suggested that this established a link between the victim and Spathis. That is speculative, since it has not been shown that the victim did not know other people at the hotel. In any event, the evidence was before the court. Even if it did establish the link suggested, that would not have assisted Patsalis, partly because of the evidence of Patsalis' links with the victim and partly because of the strength of the evidence against him on 11 April 1996. Mr Grisdale and Mr Haniotis 190 Patsalis criticised Mr Amor-Smith for not cross-examining Mr Grisdale (who had dealings in tobacco with the victim) and Mr Haniotis (an habitué of the coffee shop at 12B Restwell Street, Bankstown). None of the questions suggested could have improved Patsalis' chances of acquittal. Conclusion on conviction 191 None of the arguments advanced by Patsalis in support of his appeal against conviction succeed. The position of counsel 192 Neither Mr MacGregor nor Mr Amor-Smith was called to give evidence. No-one represented their interests on the appeal. In these circumstances it is appropriate to say the following. There is no doubt that for both Mr MacGregor and Mr Amor-Smith the trial was most burdensome – because of the nature of the case, because of their late arrival in it, and because Patsalis must have been a difficult client. There is also no doubt that Mr MacGregor and Mr Amor-Smith each put his best efforts into protecting Patsalis' interests. Lest the reasoning set out above leaves any doubt about it, it should be recorded that nothing in Patsalis' challenge to their performance supports any suggestion that Patsalis received less than professional and capable service. Though it is not necessary to reach any conclusion about this, there are grounds for thinking that he received more than that. Sentence 193 Patsalis submitted that the sentence was in itself too severe; that there was a lack of parity in relation to Spathis' sentence; and that the trial judge failed to take into account the assistance he gave to the police. 194 So far as Patsalis' assistance to the police is concerned, the trial judge's reasons for not discounting the sentence have already been set out. Patsalis did not advance specific arguments demonstrating error in that reasoning. The trial judge was entirely entitled to conclude that Patsalis' decision to go to the police was not motivated by a desire to assist the police in solving the crime but to ensure that Spathis, and only Spathis, could be blamed for it. The trial judge was entitled to conclude that though Patsalis' dealings with the police helped them in relation to Spathis, his account to them was untruthful, incomplete and unreliable. 195 The other two arguments were supported in part by references to authorities on parity and on the standard of proof, and in part by a repetition and development of some earlier arguments. Patsalis submitted that the trial judge erred in his fact finding in part because of the alleged incompetence of counsel. The primary errors alleged related to the extent to which Patsalis knew the victim, to the personal characteristics of the victim, and to the role of Mr John Spathis. Patsalis also pointed out that the Crown had not submitted that there was any difference in the culpability of each accused. 196 The trial judge based his findings of fact both on what was necessarily implicit in the jury verdict and on his own impressions. Both the jury verdict and the trial judge's impressions were based on a judgment of the credibility of numerous witnesses. No convincing reason has been assigned for doubting the trial judge's findings. 197 It follows that the sentence in itself was not excessive for so serious a crime and it follows that the conclusions on which the trial judge based the difference in sentences are not assailable. Once those conclusions are accepted, the difference between Patsalis' sentence and Spathis' sentence is not such as to leave Patsalis with a justifiable sense of grievance. The trial judge was entitled to reach a different view as to relative culpability from that which the Crown put to him. Spathis appeal 198 I agree with the reasons of Carruthers AJ. Orders 199 The following orders are proposed in Patsalis' appeal. 1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is dismissed. 200 The following orders are proposed in Spathis' appeal. 1. The appeal against conviction is dismissed. 2. The application for leave to appeal against sentence is dismissed. 201 CARRUTHERS AJ: With regard to the appeal by Michael Patsalis I agree that the appeal should be dismissed for the reasons expressed by Heydon JA whose judgment I have had the benefit of reading in draft form. I also agree that Patsalis should be refused leave to appeal against sentence for the reasons expressed by his Honour. 202 I turn then to the appeal against conviction by Alexios Spathis. As the relevant background facts are set out in the judgment of Heydon JA, it is not necessary for me to repeat them here, except where reference to specific facts is essential. 203 The first ground of appeal (as amended) of the appellant Spathis is in the following terms: - "The Appellant received an unfair trial in that the felony murder charge should have been left as an alternative count in the indictment to mens rea murder, and as a consequence the trial judge failed to properly or adequately direct the jury as to the ingredients of each offence." 204 The indictment in this matter reads as follows: - "On 10th June 1999 the Director of Public Prosecutions on behalf of Her Majesty charges that Michael Patsalis and Alexios Spathis on 11 April 1996 at Sydney in the State of New South Wales did murder Klaus Peter Ludwig." 205 This count was of course laid under the provisions of s 18 of the Crimes Act 1900, as amended, which section is in the following terms: - "Murder and manslaughter defined 18. (1)(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter. (2) (a) No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section. (b) No punishment or forfeiture shall be incurred by any person who kills another by misfortune only, or in his or her own defence." 206 Bearing in mind that the Crown had no independent direct evidence of what actually transpired within the cabin of the truck at the time Mr Ludwig (to whom I shall hereafter refer as "the victim") was fatally stabbed, it was necessary that the Crown formulate its case on alternative bases. Necessarily, felony murder had to be one of the alternatives. It is of course well established that where the essential facts upon which the Crown relies show a clear case against the accused, the Crown may rely on alternatives. The appellant does not challenge that proposition. As is clear from the formulation of the above ground, his contention is that as one of the alternatives upon which the Crown sought to base its case of murder was that of felony murder, that alleged basis of liability should have been the subject of an alternative count in the indictment to what was described as mens rea murder. The appellant contends that the failure to do so by the Crown occasioned him unfairness to such an extent that the conviction should be set aside. 207 It is convenient then to note the way in which the Crown opened its case to the jury. The first limb was described as one of individual responsibility or liability and categorised as mens rea murder. That is to say, in relation to each accused, the Crown alleged that the accused was guilty of murder on the basis that the death of the victim was caused by an act done by the accused himself, namely stabbing the victim, and that act was done with the intention of killing or inflicting grievous bodily harm upon the victim. 208 The second limb was that of joint responsibility. It was based upon the concept of a joint attack by the accused with a common intention to kill or inflict grievous bodily harm upon the victim. 209 The next limb was a common intent to rob the victim in company, during which robbery the victim was wounded, albeit there was no specific intent to kill the victim. That then was felony murder, with a foundational offence of (bare) robbery in company. By the time his Honour summed up to the jury, the Crown had identified armed robbery with wounding under s 98 of the Crimes Act as the foundational crime. The "felony murder" provisions in s 18 displace the common law principles. Accordingly, a preferable expression is "constructive murder". However, as his Honour and counsel throughout the trial, and on this appeal, used the term "felony murder", I will, for the sake of consistency, use that expression in this judgment. 210 During the course of the summing up, his Honour provided the jury with written directions which embraced the various alternatives of criminal liability posited by the Crown. Counsel for all parties agreed to the form of the written directions. Those directions are in the following terms: - " MURDER WITH INTENT Guilt Arising from the Accused's Own Act As to each accused - The accused is guilty of murder if it has been proved beyond reasonable doubt: (a) that the death of Klaus Peter Ludwig was caused by an act done by the accused himself, namely stabbing him; and (b) that that act was done by him with the intention to kill or inflict grievous bodily harm. "Grievous bodily harm" means really serious harm. MURDER WITH INTENT Joint Attack If two people together attack a third person, with similar weapons, and in a similar fashion, and with a common intention at the time of the attack, to kill or inflict really serious injury upon that person, and one inflicts a fatal wound, then, even though it is not possible to determine which of the two inflicted the fatal wound, both will be guilty of murder. MURDER WITH INTENT Criminal Responsibility for the Act of Another Joint criminal enterprise - (1) The law is that where two persons carry out a joint criminal enterprise each is responsible for the acts of the other in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two (or more) persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any particular time before the crime is committed. The circumstances in which two (or more) persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) If the agreed crime is committed by one or other of the parties to that joint criminal enterprise, or if each played some part in committing that crime, each party is equally guilty of the crime regardless of the part he played in its commission. (4) If, instead of the agreed crime, another crime is committed by one or other of the parties to that joint criminal enterprise, or if each played some part in committing that other crime, each party is equally guilty of that other crime regardless of the part played by him in its commission provided that the Crown also establishes that the parties to that enterprise had contemplated that other crime as a possible incident in the execution of the agreed crime. It does not matter that the crime committed does not correspond in every detail with that contemplated by the parties. What must be contemplated by the parties is the substantial risk, not merely a slender chance, that it will be committed. (5) If, instead of the agreed crime, another crime is committed by one or other of the parties to that joint criminal enterprise, all parties are equally guilty of that other crime regardless of the part played by each in its commission provided that the Crown has also established that: (a) the accused had contemplated that other crime as a possible incident in the execution of the agreed crime, and (b) that, with that state of mind, he had continued to participate in the enterprise even though he may have expressly rejected any agreement that that other crime be committed. It does not matter that the crime committed does not correspond in every detail with that contemplated by the parties. What must be contemplated by the parties is the substantial risk that it will be committed, not merely a slender chance. (6) A person participates in a joint criminal enterprise either by himself committing the crime charged itself or, with knowledge that the crime is to be committed, by intentionally assisting or encouraging another party to the joint criminal enterprise to commit that crime. (7) The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the agreed crime. As to each accused - 1. Agreement to Kill He is guilty of murder if it has been proved beyond reasonable doubt that: (a) his co-accused stabbed Klaus Peter Ludwig; and (b) his co-accused, at the time when he stabbed Klaus Peter Ludwig had the intention of killing him or inflicting grievous bodily harm; and (c) he was party with his co-accused to a joint criminal enterprise (ie, a plan or a scheme), one object of which was to kill or inflict grievous bodily harm upon Klaus Peter Ludwig. 2. Agreement to Rob He is guilty of murder if it has been proved beyond reasonable doubt that: (a) his co-accused stabbed Klaus Peter Ludwig; and (b) his co-accused, at the time when he stabbed Klaus Peter Ludwig, had the intention of killing him or inflicting grievous bodily harm; and (c) he was party with his co-accused to a joint criminal enterprise (that is a plan or a scheme), one object of which was to rob Klaus Peter Ludwig; and (d) being aware that his co-accused was armed with an offensive weapon, namely a knife, he was also aware that there was a substantial risk that, in the course of the robbery, his co-accused might stab Klaus Peter Ludwig, with the intention of killing him, or inflicting grievous bodily harm. FELONY MURDER Elements of the foundational felony - 1. In order to prove that the accused is guilty of felony murder, the Crown must prove beyond reasonable doubt the elements of the offence of robbery whilst armed with an offensive weapon with wounding. 2. The elements of the offence of robbery whilst armed with an offensive weapon with wounding are: (a) an act done with intent to steal; and (b) the use of an offensive weapon to inflict force or to convey the threat of force so as to procure the submission of the victim; and (c) the taking of property of the victim or property which was in his presence, custody or control; and (d) that immediately before, during, or immediately after the robbery, the victim was wounded. 3. Whether something is "an offensive weapon" depends upon the type of weapon (in this case a 5 inch or 7 inch knife), and the intention of the carrier or user. What might, in other circumstances, be a domestic item, may become an offensive weapon where it is used for an aggressive purpose to threaten or inflict injury. 4. A person is "armed with an offensive weapon" if the offensive weapon is ready for use. Elements of felony murder - As to each accused: 1. Accused did the Stabbing He is guilty of murder if it has been proved beyond reasonable doubt that: (a) he inflicted the stab wounds that killed Klaus Peter Ludwig; and (b) he did so immediately before, during, or immediately after the commission by himself and/or his co-accused of the offence of robbery while armed with an offensive weapon. 2. Co-Accused did the Stabbing He is guilty of murder if it has been proved beyond reasonable doubt that: (a) his co-accused inflicted the stab wounds that killed Klaus Peter Ludwig; and (b) the stab wounds were inflicted immediately before, during, or immediately after the commission by himself and/or his co-accused of the offence of robbery while armed with an offensive weapon; and (c) being aware that his co-accused was armed with such a weapon, namely a knife, he was aware that there was a substantial risk that his co-accused might immediately before, during or immediately after the commission of the robbery, stab Klaus Peter Ludwig, seriously injuring him or killing him. 3. Undecided as to Who did the Stabbing He is only guilty of murder if it is proved to your satisfaction beyond reasonable doubt: (a) That there was a joint criminal enterprise between both accused to rob Klaus Peter Ludwig of the money he was carrying; and (b) That at least one of the accused was carrying a knife; and (c) That one of the accused, either Mr Patsalis or Mr Spathis, stabbed Klaus Peter Ludwig, and the other was present when he was stabbed; and (d) That the person who stabbed the deceased did so with the intention of killing him or inflicting grievous bodily harm; and (e) That the stab wounds were inflicted immediately before, during, or immediately after the robbery of Klaus Peter Ludwig; and (f) That the one who did not do the stabbing either agreed to the stabbing, or was aware that: (i) his co-accused was carrying a knife at the time of the robbery; and (ii) there was the possibility, amounting to a substantial risk, that in the course of the robbery, the co-accused may stab Klaus Peter Ludwig, thus wounding him, and yet continued to participate in the enterprise. In the circumstances identified in 3, both are guilty of murder, even though you may be uncertain as to either: (a) Who, between the two accused, actually did the stabbing; or (b) Whether the accused who did not do the stabbing was also carrying a knife. " Wounding " is the breaking of all layers of the skin. " 211 On 10 June 1999, prior to the commencement of the trial, the Crown prosecutor wrote to the legal representatives for the appellant, as follows: - "Regarding the manner in which the Crown proposes to posit its case, the Crown will allege that: 1. Either Mr Spathis was a principal in the first degree (with the requisite intent) and stabbed the deceased; or 2. That both Mr Spathis and Mr Patsalis were both principals in the first degree (with the requisite intent) and they both stabbed the deceased; or 3. That Mr Spathis was acting in concert with Patsalis and Patsalis stabbed the deceased (with the requisite intent); or 4. That they both are guilty of murder on the basis of the felony murder rule, namely that they went together with a specific intent to rob the deceased and 'at the time of, or immediately after, such robbery… wound[ed]' the deceased (section 98, Crimes Act 1900 NSW)." 212 Section 98 of the Crimes Act is in the following terms: - " Robbery with arms etc and wounding 98 Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to imprisonment for 25 years." 213 It can be seen that the written directions under the heading Murder with intent - Guilt arising from the Accused's Own Act encompass paragraph 1 of the above particulars. The directions under the heading Murder with intent - Joint Attack encompass paragraph 2 of the particulars. The directions under the heading Murder with intent - Criminal Responsibility for the Act of Another encompass paragraph 3 of the particulars. 214 It is convenient, at this stage, to make certain comments in relation to the directions under the rubric "Joint Criminal Enterprise". 215 The Crown case under this rubric includes two alternatives, firstly, that Mr Ludwig was killed pursuant to a joint criminal enterprise between the appellants, one object of which was to kill or inflict grievous bodily harm upon Mr Ludwig. In these circumstances, of course, it is immaterial which appellant stabbed Mr Ludwig. 216 The second alternative was that there was a joint criminal enterprise between the appellants, one object of which was to rob Mr Ludwig, and that one co-accused was to the knowledge of the other, armed with a knife (which was clearly in the circumstances an offensive weapon). Further, that during the course of the robbery, one co-accused stabbed Mr Ludwig causing his death. 217 This second alternative involves the application of the doctrine of common purpose which extended the concept of the joint criminal enterprise to rob Mr Ludwig, to an incidental crime of murder. The incidental crime must be one which falls within the parties' own purpose and design because it is within their contemplation and is foreseen as a possible incident of the execution of the planned joint criminal enterprise, in this case, to rob Mr Ludwig whilst armed. 218 Stated concisely, and appreciating that some flexibility of language is permissible, the elements which the Crown was required to prove beyond reasonable doubt under this rubric were as follows: (i) that there was a joint criminal enterprise agreed to by the appellants, in company, to rob Mr Ludwig whilst one accused was to the knowledge of his co-accused, armed with an offensive weapon, namely a knife; (ii) that during the course of the armed robbery, one accused stabbed Mr Ludwig with the knife intending to kill or inflict grievous bodily harm upon him, and as a consequence he died; (iii) that the other accused contemplated at the time of entering into the joint criminal enterprise to rob Mr Ludwig, and up to and including the time of the stabbing, that in the carrying out of the joint criminal enterprise of armed robbery, his co-accused might use the knife with the intention of killing or inflicting grievous bodily harm upon Mr Ludwig and that accused, having that contemplation, continued to participate in the joint criminal enterprise. 219 The written directions under the heading "Felony Murder" encompass the particulars contained in paragraph 4 of the letter dated 10 June 1999. It will be noted from paragraph 4 that, as I have already indicated, the Crown's original position was that the foundational offence was robbery in company and wounding. The Crown was entitled in law to rely upon such a foundational offence, however, as I have indicated, the Crown later agreed to rely upon robbery whilst armed with an offensive weapon with wounding. Of course, both alternatives are encompassed within s 98. 220 It is to be noted in the directions relating to felony murder, the compendious expression "stab wounds" is used to embrace both the wounding which was necessary to establish the foundational offence, and the wounding which was the "act of the accused" causing the death charged. 221 Presumably because this phrase "stab wounds" was used compendiously, when one turns to the heading "Accused did the stabbing", sub-paragraph (b) merely states "he did so immediately before, during, or immediately after the commission by himself and/or his co-accused of the offence of robbery while armed with an offensive weapon." The inclusion of the words "with wounding" after "offensive weapon" was apparently considered unnecessary because of the reference to "stab wounds" in sub-paragraph (a), which expression would encompass the wounding necessary to constitute the foundational offence and the wounding which was necessary to cause the death of the victim. 222 The unchallenged evidence of the forensic pathologist Dr Lawrence established that there were seven wounds on the right hand side of the body and three wounds on the left. The wounds were numbered 1 to 10. Although Dr Lawrence was unable to express an opinion as to the order in which those wounds were made, he did express the view that wound number 9 was the lethal injury. That stab wound entered the lung and severed a large pulmonary artery. Dr Lawrence also expressed the view that stab wound number 5 could have caused the lethal injury, but less certainly than number 9. 223 Dr Lawrence also observed some superficial cuts on the palm of the right hand. He said that such injuries are fairly commonly seen in people who have been attacked with a knife. They are called "defence wounds" because they usually occur as a consequence of the victim attempting to grab the assailant's knife in order to protect the body. Dr Lawrence opined that the victim was presumably conscious and able to move at the time that those cuts were inflicted. In any event, the evidence did not identify, beyond reasonable doubt, which wound was the fatal one and this no doubt accounts for the manner in which his Honour directed the jury on felony murder. 224 I turn then to the first ground of appeal. The appellant submitted that the distinction between mens rea murder and felony murder is one involving different and alternative factual bases of liability, and is not a distinction arising from the application of alternative legal formulations of liability. It was submitted that whilst both mens rea murder and felony murder arise by operation of s 18, they are not identical offences and in this respect are constituted by different ingredients. One immediately notes that it is well established by authority that there is but one offence under s 18, namely murder but it may be committed in four different ways. 225 In any event, the submission continues, the principal difference is that in order to establish mens rea murder it is incumbent on the Crown to prove specific intent, namely, an intention to kill or cause grievous bodily harm, whereas no such specific intent is required for felony murder. All that is required is proof of the intent necessary for the foundational crime giving rise to the application of the felony murder doctrine. 226 It was submitted that the possibility arises that the jury's verdict has been compromised, as there was no attempt to ascertain the basis upon which the jury arrived at its verdict. Therefore, it cannot be determined whether the verdict was arrived at by all of the jury being satisfied as to mens rea murder, or all of them being satisfied as to felony murder. In other words, some of the jurors may have been satisfied as to mens rea murder, whereas the remainder were only satisfied as to felony murder. 227 It was submitted that a further distinction also exists in that a verdict of manslaughter is not available in respect of felony murder. It was submitted that the appellant's trial was rendered unfair in that he was deprived of having the jury return its verdict in relation to a full mens rea count and, in the alternative, such count not being established beyond reasonable doubt, to a verdict by the jury on whether felony murder had been made out on the available evidence. 228 It is to be noted that after the jury returned their verdicts of guilty of murder against both accused, no application was made to the judge to question the jury in relation to the basis of criminal liability for murder, upon which the jury reached its verdict. It goes without saying, that there may have been variations between the jurors in this regard and, indeed, those variations may have related both to the accused as well as the categories of liability. 229 In the light of the existing authorities, counsel for the appellant assumed a daunting burden to persuade this Court that it was not open to the Crown to rely on the one count of murder upon the various categories of liability encompassed within his Honour's written directions. Those written directions were of course, appropriately discussed by his Honour during the course of the summing up. Indeed, no case was referred to in this Court (perhaps not surprisingly) in which felony murder was contained in a separate count in an indictment for murder. 230 Reference to certain of the authorities referred to during the course of argument demonstrates the difficulties which the appellant faces. One may conveniently start with the seminal case of Ryan v The Queen (1966-1967) 121 CLR 205. In that case the Crown indicted the accused upon one count of murder, and relied at the trial upon the three alternatives in s 18 which, of course, included felony murder. The foundational offence for the felony murder was, as here, armed robbery with wounding under s 98 of the Act. No point was taken at the trial, on appeal to this Court, or in the High Court that such a course was not open to the Crown and, in particular, that felony murder should have been contained within a separate count. 231 In Regina v Munro (1981) 4 A Crim R 67, the Crown relied (again without demur) upon an indictment containing one count of murder, and relied at the trial upon reckless indifference to human life as an alternative to felony murder. 232 In Regina v Sharah (1992) 30 NSWLR 292, the appellant and an accomplice, Attard, entered a shop with the intention of robbing the occupant. Attard was carrying a loaded shot gun. During the course of the robbery there was a wounding and subsequently the shotgun was discharged and a person within the shop was killed as a consequence. Sharah was separately tried on an indictment containing one count of murder, and one of robbery whilst armed with wounding under s 98 of the Act, which constituted the foundational offence for the murder felony aspect of the murder charge. As an alternative to felony murder, the Crown relied upon "common purpose murder" which involved a common purpose between the appellant and Attard in company to rob the shop keeper whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon. This Court held that the Crown was required to prove that during the course of the armed robbery Attard discharged the gun intending to kill or cause serious bodily harm to one of the occupants, and Sharah contemplated that in the carrying out of the common unlawful purpose of armed robbery, Attard might use the gun with the intention of causing really serious bodily harm. 233 As to the felony murder, it was held that it was sufficient that there existed a common purpose between the appellant and Attard in company to rob the shopkeeper whilst Attard was, to the knowledge of the appellant, armed with an offensive weapon; that during the course of the armed robbery Attard wounded the shop keeper during the course of such armed robbery with wounding, or immediately thereafter, Attard discharged the gun causing the death of an occupant. Further, that the discharge of the gun by Attard during or immediately after the armed robbery with wounding was a contingency which the appellant had in mind, whether or not the gun was fired intentionally, and whether or not in furtherance of the common unlawful purpose. It is to be noted in this case that the evidence was capable of the conclusion that Attard discharged the weapon accidentally during the struggle. 234 The above mentioned summary illustrates the significantly different elements involved in the alternative bases upon which the Crown sought to establish murder. However, as was pointed out by Gleeson CJ in the course of the argument, "the Crown case is a paradigm example of both felony murder and common purpose murder". 235 No point was ever taken that the felony murder limb should have been contained within a separate count. An application for special leave to appeal to the High Court was made by the appellant. It was rejected by the High Court (Mason CJ, Deane and Dawson JJ) on 20 May 1993 upon the basis that the decision of this Court was correct. 236 No doubt countless other cases could be cited in which felony murder was one of the alternative bases on which the Crown sought to establish murder. 237 As the Crown points out, if felony murder had been left in this case as a second and alternative count of murder, the absurd situation could have been reached where the accused were not convicted of murder on either count because not all jurors could agree upon the basis for convicting the accused of murder, albeit they all agreed that the Crown had established their guilt in one way or another. I do not accept the submission that felony murder should have been included in a separate count. 238 I turn then to that part of the appellant's submissions which relies upon the following statement by Lee J in R v Hitchins [1983] 3 NSWLR 318 at 324 for the proposition that a verdict of manslaughter is not available in respect of felony murder: "The submission has been made that his Honour was in error in not leaving for the consideration of the jury the alternative of a verdict of manslaughter. Such a verdict has no relevance to a charge of murder based only on felony-murder as contained in the Crimes Act 1900, s 18, for a verdict of not guilty of murder on that basis entitles an accused to an outright acquittal: see the discussion of felony-murder by Miles J in R v Burke [1983] 2 NSWLR 93." 239 Street CJ and Enderby J concurred in the judgment of Lee J. It is not clear whether his Honour intended, by the use of the word only, to confine that principle to a case where the Crown relied solely on a count based on felony murder, with no alternatives based upon other categories of murder. 240 However, in my view, even if his Honour did intend to restrict the principle to that situation, it is, with due respect, too widely expressed, and it is certainly inconsistent with practice. 241 It is necessary then to consider what was in fact decided in Burke. Burke went with an accomplice to a private home whilst armed with a loaded rifle with the intention of committing armed robbery. When he knocked at the front door, the occupant came to the door. He struggled with the appellant and pushed him away. The occupant then went into the house and returned to the front door. The appellant said at trial, and to investigating police, that he believed that the occupant was armed and thereupon was fatally wounded when the gun discharged whilst the appellant was seeking to defend himself. 242 The trial judge was only prepared to allow felony murder to go to the jury which his Honour believed was the true basis of the Crown's case. He declined to leave self defence, stating: "I do not believe that there is material which fairly raises self-defence in respect of felony murder." 243 Burke was convicted of murder (felony murder) and contended on appeal that, by taking away mens rea murder, the trial judge had wrongly deprived the appellant of the possibility of a verdict of manslaughter upon the basis of self defence. 244 Miles J, in a judgment (with which Street CJ and Nagle CJ at CL agreed) held that in felony murder the mental element accompanying the act causing death is irrelevant, so long as that act can be said to be the act of the accused. Miles J continued: "If the mental state of the accused is irrelevant there is, so it seems to me, considerable conceptual difficulty in relating the issue of self defence (and other matters affecting criminal responsibility such as provocation) to the doctrine of felony murder. That difficulty was I think, with respect, recognised by his Honour the trial judge in his reference to Viro's case: in order to raise self-defence the appellant is required to put significant distance between the original aggressive act on his own part, in this case the armed robbery, and the subsequent act causing death, in this case the firing of the rifle. If the firing of the rifle occurred as part and parcel of the armed robbery, the appellant cannot rely upon it as an act done in self-defence. If on the other hand the firing of the rifle occurred after the acts constituting an armed robbery had come to an end, that is to say after the aggressor had broken off his attack, then it cannot be said to have occurred during or even immediately after the crime punishable by penal servitude for life upon which the Crown relies for the purpose of the felony murder rule. Accordingly, in the latter event the appellant would be entitled to an acquittal on the charge of murder, not because he has succeeded on self-defence, but because the Crown has not proved felony murder as alleged. To speak of self-defence in these circumstances is to raise a false issue." 245 His Honour later said, in an important passage:- "However the case is not one in which the jury were precluded from returning a verdict of manslaughter. His Honour the trial judge put to the jury that if they were not satisfied as to one or more of the elements of murder, then they should consider the alternative verdict of manslaughter based on an unlawful and dangerous act. No objection was taken, nor could be taken, to his Honour's directions in this regard. The appellant was not deprived entirely of the chance of a verdict of manslaughter, but it is true that by the confining of the Crown case to felony murder the appellant was not entitled to seek a verdict of manslaughter on the specific basis of excessive self-defence." 246 Thus Burke's case cannot be taken as authority for the unqualified expression of principle by Lee J in Hitchens. A somewhat similar situation to Burke arose in the earlier case of R v Bowden (1981) 7 A Crim R 378. There the appellant beat the occupant of a house which he was attempting to rob. The appellant contended that he was considerably intoxicated at the time. The Crown at the trial relied only upon felony murder. However, trial counsel submitted that his Honour should also direct the jury on mens rea murder, so that the appellant could have his intoxication raised by way of defence and thereby seek a verdict of manslaughter. This Court (Nagle CJ at CL; Begg and Fisher JJ) rejected an appeal based upon the trial judge's refusal to direct the jury on the other categories of murder in s 18. At 381-382 their Honours said: - "We cannot accept this submission and we do not agree that the course adopted by the trial judge was in any way 'unfair' to the appellant. The trial judge charged the jury in accordance with proper legal principles and in accordance with the authorities. He was in no way obliged to put the alternative bases of murder to the jury merely for the purpose of providing an opportunity for counsel for the appellant to negate them. If a charge of 'felony murder' was not proved, then the accused was entitled to be acquitted; but if it was, it matters not that if the Crown had relied on other portions of s 18 to base its case, the result might have been a verdict of manslaughter. The appellant's submission might well be described as an attempt to revive the 'merciful verdict of manslaughter' so trenchantly criticised in the judgment of the High Court in Gammage (1969) 122 CLR 444." 247 The factual basis in Bowden was such that there is no basis upon which the jury could have returned a verdict of manslaughter, and it is not to be taken, in my view, as supportive of the statement of principle by Lee J upon which the present appellant relies. 248 In my view, it is quite open to a trial judge to leave the alternative verdict of manslaughter to the jury in an appropriate case where the Crown relies solely upon felony murder, or whether it relies upon felony murder as merely one of the alternative bases on which the jury could convict of murder. One can readily think of examples. There may be an issue of fact to be resolved by the jury as to whether the act causing death occurred immediately after the commission of the foundational offence, or whether such act was too remote in time. If the jury were not satisfied that the relevant act occurred sufficiently proximately to the commission of the foundational offence, it would, nevertheless, be open to them in an appropriate case, to convict the accused of manslaughter on the basis that the act which caused death was an unlawful and dangerous act. 249 Thus the appellant cannot call in aid under this ground of appeal an asserted principle that a verdict of manslaughter has no relevance to a charge of murder based only on felony murder. 250 In developing their case under the first ground of appeal counsel for the appellant Spathis relied on a passage in the judgment of Fitzgerald P and Moynihan J in Leivers & Ballinger (1998) 101 A Crim R 175. In that case the prosecution could prove that each of the appellants was guilty of murder or manslaughter, either as a principal because he or she was a party to a joint criminal enterprise (see s 7 of the Criminal Code (Qld)), namely, the beating that resulted in the death of the deceased, or as an accessory, having restrained or disabled the deceased before the beating, or having encouraged others to beat the deceased (see s 8 of the Code). However, the prosecution could not prove that either appellant must have been a principal or an accessory. The appellants argued that the trial judge had erred in directing the jury that all might "have different points of view in the course of reaching a decision, and.. may reach the same conclusion by different routes…in the end you must all agree with the verdict which is announced whether it happens to be guilty or not guilty in each instance". 251 The appellants submitted that the judge should have directed the jury that they had to be unanimous as to the legal basis upon which they found each accused guilty. In a passage which has since been the subject of much attention, Fitzgerald P and Moynihan J said (at 188): - "When more than one basis of criminal liability is relied on against an accused, it is, in our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences." 252 Ultimately their Honours concluded that this ground of appeal had not been made out because the alternative bases of criminal liability did not involve materially different issues or consequences. 253 A helpful passage is to be found in the judgment of Lamer J in R v Thatcher (1987) 39 DLR (4th) 275 at 313, where his Honour said: - "Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually inconsistent theories, even if those theories relate to the particular nature of the accused's participation in the offence. If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt. Otherwise, the jury would be adding against the accused the inculpatory elements of evidence which cannot stand together because they are inconsistent." 254 And LaForest J said relevantly (at 314):- "In each case, therefore, it will be for the trial judge, having regard to the nature of the offence, the theories of the parties, and the totality of the evidence, to realistically assess the possibility that the evidence will be used improperly, and to direct the jury accordingly." 255 One of the cases in which the above quoted passage from the judgment of Fitzgerald P and Moynihan J was considered by this Court is R v Cramp (1999) 110 A Crim R 198. That case involved one count of manslaughter which was presented by the Crown on the alternative bases that the relevant death resulted from the appellant's unlawful and dangerous act, his gross negligence, or from both. On appeal it was submitted that the trial miscarried because the Crown relied on the two bases of guilt, and the judge failed to instruct the jury that they had to be unanimous on one basis or another. 256 The leading judgment was delivered by Barr J and had the concurrence of Sully and Ireland JJ. His Honour reviewed a number of the authorities both in this country as well as the United Kingdom and Canada. His Honour focused on the last sentence in the above quoted passage from the judgment in Leivers: "However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences." 257 Barr J said (at 213): "Using the terminology of Leivers, the alternative bases did not involve materially different issues or consequences. The appellant knew the case he had to meet." 258 Earlier (at 212) Barr J said: "A distinction is to be made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts. The cases to which I have referred speak about the former. This appeal is about the latter." 259 Reverting to Leivers, I note that Pincus JA said, in a separate judgment, (at 191): - "It is, with respect, not clear to me that a juror convinced by the Crown case against one of the appellants under s 7 must have accepted the s 8 case also. A juror accepting that one of the appellants helped in some way in the killing of Hockey would not necessarily have also been convinced that there was any identifiable common intention to prosecute an unlawful purpose other than killing Hockey; to put that more generally, it is by no means in every case that a person guilty under s 7 as an aider could have been successfully prosecuted under s 8. But it is my opinion that if in the present case some of the jurors reached a verdict under s 7 and the rest under s 8, the verdict is good." 260 Having referred to certain authority in New Zealand, Canada and England, Pincus JA said (at 193): - "Accepting that the jury must not only be unanimous as to verdict, but also be unanimous as to the identity of the offence to which the verdict relates, Thatcher tends to support a broad approach to the latter requirement; such an approach would not, in the present case, vitiate a verdict arrived at by some jurors on the basis of s 7 and on others on the basis of s 8." 261 In R v Serratore (1999) 48 NSWLR 101 this Court (Dunford, Greg James JJ and Smart AJ) was concerned with an appeal from a conviction for murder. This Court decided that where there is no question but that a murder has been committed, an indictment comprised of a single count charging the accused "did murder [the deceased]" is proper, permitting the Crown to put its case on the alternative basis that either the accused killed the deceased or arranged for someone else to do it, there being no necessity to plead the alternative forms of murder in two alternative counts, as contended by the appellant. Greg James J considered in some detail the history of the development of the New South Wales practice and procedure in the regulation of criminal proceedings on indictment. His Honour also considered a number of cases relevant to the question of unanimity of verdict where the Crown case was based on two or more alternatives. His Honour reviewed Thatcher and R v Giannetto [1997] 1 Cr App R 1 which both dealt with similar factual circumstances to those in Serratore. There is no need for me to repeat what his Honour said with regard to these cases both of which provided assistance for the resolution of the subject matter. It is of interest to note that his Honour proposed that at the retrial of Serratore, the directions should also include a requirement that the jurors be unanimously satisfied that the accused was at least an accessory before the fact. His Honour, however rejected the ground based upon the unanimity point. In essence, his Honour considered that the reasons for the two bases relied upon by the Crown in the one count were not lawfully incompatible and, accordingly, there was no error. 262 It is convenient now to refer to what is known as the Brown direction; a phrase which emanates from the judgment of the Court of Appeal, Criminal Division in R v Kevin Brown (1983) 79 Cr App R 115. There the accused was charged under s 13 of the U.K. Prevention of Fraud (Investments) Act 1958 of fraudulently inducing four persons to enter into agreements to acquire shares in a company by making misleading statements. Each count in the indictment contained particulars of a number of different statements relied on by the prosecution as constituting the inducement. The jury asked the trial judge "if the individual members of the jury find him guilty of different parts of the count, is he guilty of the whole count, and is the verdict of guilty unanimous?" They were directed that it was sufficient if all agreed that there was a dishonest inducement even though they differed as to the statements and the particulars which they relied upon as the inducement. The appellant was duly convicted and appealed. The Court of Appeal held that the following principles applied in a case such as Brown: (1) Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). (2) However, where a number of matters were specified in the charge together constituting one ingredient in the offence, and any one of them was capable of doing so, then it was enough to establish the ingredient that any of them was proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they were agreed was an inducement as alleged. 263 Thus there had been a misdirection, and the conviction was quashed. 264 The Brown direction was considered subsequently by the Court of Appeal, Criminal Division in R v Boreman and Others [2000] 1 All ER 307 at 310 where their Lordships analysed the decision and indicated that a conviction cannot stand: "…where the allegations made and the evidence adduced by the prosecution reveal more than one factual basis for the conclusion that the accused is guilty and that the possibility arises that some jurors may be satisfied of his guilt only because fact A is proved whereas the others may be satisfied only because fact B is proved …" In other words, where there are two routes by which a murder may have been committed, and those two routes comprise completely different acts happening at different times, the jury must be unanimous on which act leads them to a decision to convict. Thus, in such a case, the judge should direct the jury that they must agree on the basis of an accused's guilt before they can convict. 265 Otton LJ who gave the judgment of the court, said (at 311): - "A related problem arises where the whole jury is satisfied that the defendant committed the crime charged either on occasion (a) or occasion (b) but find it impossible to say which. Professor Smith has expressed the opinion: 'If the two occasions are closely associated in time and are 'part of the same transaction' it seems the conviction is good.' (See [1988] Crim L R 335 at 342)'." 266 At 311-313 Otton LJ continued: - "An application of the R v Brown principle is to be found in R v Smith [1997] 1 Cr App R 14 where the appellant was convicted of affray. The offence was committed during a party, and although the prosecution initially relied on events which had taken place outside the house to found the count of affray, in summing up the judge referred to incidents both inside and outside the house. The appellant appealed on the ground that the recorder had misdirected the jury in failing to direct them that they had to be satisfied that either the events inside the house or those outside the house constituted the offence, leading to the possibility that, although the jury's verdict was unanimous, it had been reached on different factual bases. The Court of Appeal allowing the appeal, held that where the Crown relied on a continuous course of conduct it was not necessary for them to identify and prove particular incidents. Where, however, the conduct relied upon by the Crown was not continuous but fell into separate sequences, different considerations might apply. The jury might not all be persuaded that the same sequence amounted to an affray, the result being that there was no unanimous verdict in support of a conviction based on any one sequence. Lord Bingham of Cornhill CJ giving the decision of the court said (at 17): 'Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of a conviction based on either sequence.' Eight days later the Court of Appeal (Kennedy LJ presiding) gave judgment in R v Giannetto [1997] 1 Cr App R 1. The court considered the previous decision in R v Gaughan [1990] Crim L R 880 where the prosecution alleged that the appellant had damaged the complainant's motor car, or got someone else to do so. On appeal he contended that the two alternatives should have been spelt out in separate counts. That was rejected by this court, Lloyd LJ (as he then was) said: '… committing an offence as a principal and committing an offence as an accessory are two different ways of participating in the same offence. They are not separate offences.' The court in R v Giannetto applied the same principle where the appellant was charged with the murder of his wife. The Crown's case was that he had either murdered her himself, or had got someone else to do so. The appellant was convicted, and appealed on the ground that the trial judge had erred in failing to direct the jury that they must be unanimous as to which of the two competing versions of events put forward by the Crown they accepted. The appeal was dismissed. The judge was right not to direct the jury before they could convict they must all be satisfied as to whether the appellant had killed his wife or that he had got someone else to do so. Kennedy LJ ([1997] 1 Cr App R 1 at 6), giving the judgment of the court, cited and approved a dictum of Hodgson J in R v More (1987) 86 Cr App R 234: 'It seems to us however, that it will only be necessary for us to give a direction on the lines set out in Brown ((1983) 79 Cr App R 115), in the comparatively rare case where it emerges at some stage in the course of the trial, or as a result of a question asked by the jury, that there is a risk of a disagreement between the members of the jury as to whether a particular ingredient of the offence has been proved.' Kennedy LJ noted (at 6): 'Nothing said by the House of Lords detracts from that proposition, which we too respectfully adopt.'" 267 At 317, his Lordship said: - "The principle is that each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction). It is thus necessary to determine what are the ingredients of a particular offence. A comparison between the cases of R v Smith [1997] 1 Cr App R 14 and R v Giannetto [1997] 1 Cr App R 1 discloses the practical difficulty in answering that question in an individual case. When is a method of committing an offence an ingredient of the offence and when is it only the means by which the offence is committed? In murder, the ingredient in question, the actus reus, is that the defendant by his deliberate act kills the deceased. It may be said that it should not matter in the present case whether the jury was split on the precise manner in which a defendant killed the deceased. Provided they are unanimous that the defendant, with the requisite intent, had killed the victim, why should it matter that some were sure it was by inflicting grievous bodily harm and others sure it was by setting the fire? However, applying the second principle enunciated in R v Brown, it seems to us that where the two possible means by which the killing is effected comprise completely different acts, happening at different times, it can properly be said that the jury ought to be unanimous on which act leads them to the decision to convict." 268 The court went on to say that although in that particular case it was satisfied that a Brown direction was required, it was nevertheless satisfied that the lack of such a direction could not in practice have resulted in any division of the jury. The court then gave reasons for such a view, related to the evidence in the case before it, the detail of which it is not necessary, for present purposes, to consider. 269 The court concluded that only two possible conclusions were open to the jury, and the court was satisfied in those circumstances that every juror must have been sure (ie. beyond reasonable doubt) that all three were at least involved in causing the injuries, and that such injuries were an operating cause of death. 270 When asked by this Court to address the difficulties raised in the appellant's case, by the judgment of this Court in Serratore, counsel for the appellant sought to distinguish it on the basis that Serratore was not "a cut throat defence" case. It was submitted that where there is a cut throat defence unique problems arise which require for their resolution an approach different from that approved in Serratore. Likewise, it was submitted, that the cases referred to in Serratore were again a particular species of case, unlike the instant case. It was submitted here that the appellant was entitled to know the basis upon which the jury had found him guilty otherwise, the criminal procedure lacked transparency. It was unlikely, it was submitted, that the jury would return a verdict of guilty on both counts in the circumstances of the case, if felony murder had been pleaded as an alternative count. 271 The appellant's argument conflicts with a long line of authority but his argument also presents, so the Crown contends, an affront to the due administration of the criminal law. The Crown refers to the following passage from the judgment of Dickson CJ in Thatcher: - "…if an accused is to be acquitted in situations where every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, 'it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'." 272 This passage was cited with approval by Greg James J in Serratore (at 144), and is, with respect, undoubtedly correct. 273 The philosophy behind the manner in which the Crown proceeded in the instant case is not, in our view, undermined by the fact that the Crown was presented with a cut throat defence. The identical problems (if such they be) upon which the appellant seeks to rely, would arise if the Crown had proceeded independently against each accused in separate trials. 274 I am of the view that there is no substance in any of the arguments raised under the first ground of appeal. It was, in my view, open to the Crown to include the felony murder alternative in the one comprehensive count. It was in accordance with principle, well established practice and logic. 275 Further, I do not think that his Honour was required to direct the jury that they should all be satisfied on at least one basis of liability. In the instant case there is no distinction between the relevant acts and when they occurred. A juror, if satisfied of any of the alternatives other than felony murder, would necessarily have been satisfied of the appellant's guilt under the doctrine of felony murder. 276 To refer to the test posed by Fitzgerald P and Moynihan J in Leivers, the alternate bases of criminal liability in this case do not involve materially different issues or consequences. The first ground of appeal should be rejected. 277 The second ground of appeal is in the following terms: - "The Appellant received an unfair trial in that the trial judge erred in not directing the jury that, on the available evidence, a verdict of manslaughter was open." 278 No direction was given that it would have been open to find the appellant guilty of manslaughter by way of a dangerous or unlawful act. It was submitted on appeal, however, that such a verdict was open on the available evidence where the crime was incidental to the common purpose and the jury were not satisfied that the appellant was the actual assailant and were unable to be satisfied as to which co-accused was the assailant. At the trial no direction was sought on behalf of either accused to this effect. His Honour expressed the view that the case was one of "murder or nothing" (transcript 2482) and therefore did not consider that he was required, in accordance with the views expressed by the High Court in Pemble v The Queen (1971) 124 CLR 107 at 118 and 132-3, to take it upon himself to give the jury a direction as to the availability of a verdict of manslaughter. Certainly the Crown Prosecutor made it perfectly clear that in his view manslaughter was not available (see transcript 2483), when he said: "I don't see it as available. I don't think the evidence supports it, not for one iota." 279 A verdict of manslaughter was open on the evidence, it was submitted, if the jury was of the view that the appellant was involved in a joint enterprise with Patsalis to rob the deceased but did not foresee (pursuant to the test of an appreciable risk of serious injury) that such a robbery would lead to Mr Ludwig's death, but he contemplated, nevertheless, that some force might be necessary to subdue him in the event that he needed to be subdued. 280 The appellant relied upon some discussion in R v Rees [2001] NSWCCA 23 where, as here, the Crown case was that the appellant was a party to a joint criminal enterprise with an accomplice, to commit robbery whilst armed and the victim was killed during the armed robbery. The appellant Rees contended that he was not present at the time of the armed robbery, and was not a participant in a joint criminal enterprise to rob the victim whilst armed. He relied upon an alibi. 281 Rees was acquitted of murder and convicted of manslaughter. A ground of appeal was that the trial judge should not have left manslaughter to the jury. 282 This Court said that, assuming that killing to be felonious, the crime was incidental to the asserted joint criminal enterprise, and if the jury were not satisfied that the appellant was the actual assailant, and were unable to be satisfied as to which of the appellant and his co-accused was the assailant, the appellant's liability arose out of the commission of the incidental crime to the enterprise of armed robbery, categorised as participation in an "extended joint criminal enterprise". 283 Thus, this Court concluded that it was open to the trial judge to leave to the jury the possibility of conviction for manslaughter on the basis that the knowledge of the appellant was no more than a realisation that in carrying out the armed robbery some harm may be occasioned to the victim, being an appreciable risk of serious injury: see Wilson v The Queen (1992) 174 CLR 313. 284 It was submitted in that instant case that such a verdict would be open, given the inability of the Crown to establish who was actually responsible for the stabbing of the deceased. The Crown case was that it could have been either accused as the actual perpetrator with the other assisting. 285 Rees is an important case, because Rees did not seek a direction on manslaughter at the trial. However, despite the fact that the appellant's case at trial was that he was not present at the time of the armed robbery and the slaying of the victim, it was nevertheless appropriate for the trial judge to direct the jury that manslaughter was an alternative verdict of murder on the basis that if the jury were satisfied that he was a party to the joint criminal enterprise to rob the victim whilst armed, and had the realisation that in carrying out the armed robbery that some harm may be occasioned to the victim, being an appreciable risk of serious injury, he could be convicted of manslaughter. The point must be made, however, in relation to Rees, that there was evidence in the Crown case that he was in fact present at the time of the armed robbery and the slaying of the victim. Thus it was open to the jury to reject the alibi and be satisfied beyond reasonable doubt that Rees was present at the relevant times. 286 R v Stewart and Schofield [1995] 1 Cr App R 441 is authority for the proposition that where proof of participation in the joint criminal enterprise, during the course of which the relevant act was done, was considered to prove only the mens rea appropriate to a lesser offence, only the lesser crime would have been proved against the accused, although the act in question may have involved the commission of a more serious crime by another by whom a specific intent could be proved. 287 Reference should also be made to R v Carberry [1994] Crim L R 446 where it was held that a person could be convicted of manslaughter if he or she agreed to attack the victim, not intending grievous bodily harm, and death resulted from contact which was part of the agreement. The issue for determination by the jury in considering the availability of manslaughter (it was held) was whether there has been a departure from the agreed joint enterprise. For a recent case see R v Williamson [2000] 1 VR 58 where it was argued by the appellant, he having been convicted of murder, that the trial judge erred in refusing to allow manslaughter to go to the jury on the assumption that the jury would not have been satisfied of the necessary murderous intent on the part of the appellant. 288 The Victorian Court of Appeal (Phillips CJ Charles and Buchanan JJA) extracted the following principles from the authorities (at 68):- "It is well established that if any view of the facts proved in a trial for murder might reasonably reduce the crime from murder to manslaughter, it is the duty of the judge in summing up to the jury to deal adequately with that issue and to direct the jury to consider the alternative verdict; and the fact that the alternative case was not mentioned by defence counsel does not relieve the judge from the duty of doing so: Mancini v Director of Public Prosecutions[1942] A C 1 at 7, per Viscount Simon, L. C.; Pemble v R (1971) 124 CLR 107 at 117-118, per Barwick, CJ; Varley v R (1976) 51 ALJR 243, at 245; R v Schneidas [1981] 2 NSWLR 713, at 715-716. These and other authorities leading to the same conclusions were recently discussed in this Court in the context of an issue of provocation in R v Thorpe [1999] 1 VR 326 at 330-331. The cases establish that in an appropriate case the judge is obliged to put the issue of manslaughter to the jury no matter what course is followed by the defence, even if, say, a defence such as provocation has been expressly disavowed by the defence (see e.g. Van Den Hoek v R (1986) 161 CLR 158 at 161-163). Another way of expressing the obligation of the Crown and the Court is that it is necessary for the Crown to exclude beyond reasonable doubt all reasonable views of the facts which are consistent with innocence of murder: R v Koutsourides (1982) 7 A Crim R 237 per Fullagar J (with whom Young CJ and Starke J agreed). On the other hand, if on no view of the evidence which might reasonably be adopted would the crime amount to manslaughter and not murder, and counsel for the accused has not suggested to the jury the possibility of manslaughter, the judge is under no duty to inform the jury that it is within their power to find manslaughter (Crimes Act 1958, s.421(1)(a)) unless the jury ask a question on the subject, in which case it will usually be the judge's duty to inform the jury that upon an indictment for murder it is within the province of the jury to find a verdict of manslaughter: Ross v The King (1922) 30 CLR 246 at 254; Beavan v R (1954) 92 CLR 660 at 662; R v Markby (1978) 140 CLR 108 at 114; R v Holden [1974] 2 NSWLR 548." 289 Having considered the evidence the Court of Appeal took the view that the evidence did not disclose any reasonable basis upon which a verdict of manslaughter might have been found, or any facts a reasonable view of which was consistent with innocence of murder. The Court came to this view after an assessment of the evidence which led to the conclusion that there was an overwhelming case of murder established against the appellant. 290 A similar approach was taken by this Court (Street CJ, O'Brien CJ of Cr D and Lee J) in R v Schneidas [1981] 2 NSWLR 713 at 716 where it was said of the obligation upon the trial judge to leave a verdict of manslaughter to the jury:- "This observation, and others in similar vein to be seen elsewhere in discussion on this topic, are not to be taken to mean that this obligation rests on the trial judge where there is no legitimate basis on the evidence for recognising the possibility of a verdict of manslaughter. 291 The appellant seeks to gain much assistance from the recent judgment of the High Court in Gilbert v The Queen (2000) 74 ALJR 676. There the majority of the High Court (Gleeson CJ, Gummow and Callinan JJ) held that the trial judge was in error in not leaving manslaughter to the jury in a murder trial, albeit it was acknowledged that such course was adopted prior to the High Court's judgment in Barlow v The Queen (1997) 188 CLR 1. At page 680 of the joint judgment of Gleeson CJ and Gummow J, their Honours cited the following well known passage from the judgment of Lord Tucker in Bullard v The Queen [1975] AC 635 at 644: - "Every man on trial for murder has 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. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached." Callinan J, in a separate judgment took the same view as Gleeson CJ and Gummow J. In separate judgments McHugh and Haynes JJ dissented. 292 It is clear from the majority judgments in Gilbert that their Honours were very sensitive to the advantages which they perceived flowed to an accused person on a murder trial if the jury were left with the alternative of finding the accused guilty of manslaughter. 293 I return then to the instant case. It was common ground, at trial, as I have indicated, that a direction on manslaughter was not appropriate. The appellant denied either being involved in the planning of or in the attack that caused Mr Ludwig's death. Indeed, as the Crown points out, his then counsel Mr Campbell, in his opening address (transcript 277), anticipated that the Crown would not be able to prove beyond reasonable doubt that the appellant even knew of the existence of the knife or the gloves. In a further opening on 1 September 1999 (transcript 2112) Mr Campbell submitted that the appellant's case was: "..really quite simple. He says he did not kill Mr Ludwig. He said he did not know that Mr Patsalis was armed with any knives. He says that he didn't even know that Mr Patsalis had purchased any knives. In short he had no contemplation that Mr Patsalis during the evening of April 11 1996 might use any knife." 294 It was therefore a crucial aspect of Spathis' defence that he was unaware that Patsalis had purchased or at any relevant time, was in possession of one or more knives. A finding by the jury that Spathis was aware of the acquisition of the knives or the fact that Patsalis was possessed of a knife at the time both appellants and the deceased were in the cabin of the truck necessarily would have had the most serious consequences so far as Spathis was concerned. Thus it was essential to the conduct of Spathis' defence that he isolate himself entirely from the presence of a knife or knives at the critical time. In these circumstances the only rational tactical decision which Mr Campbell could have made was to refrain from seeking a direction on manslaughter. Indeed, Spathis said that he was unaware that Patsalis intended to rob the deceased; to him, the conduct of the robbery and the stabbing of Mr Ludwig came as complete and unexpected surprises. His explanation for assisting in the attempted destruction of the body and the truck was solely the fear which Patsalis had occasioned in him. 295 By contradistinction, the evidence which Patsalis gave was that not only was Spathis involved in the plan to rob and the actual robbing, but it was he who possessed the knife and administered the fatal stabbing. 296 The recent decision of this Court in R v Phan [2001] NSWCCA 29 raised similar questions for consideration to those in the present case. In Phan the Court held that it does not follow that in every case where murder is charged, manslaughter must also be left to the jury. In order for manslaughter to be left, the case must be one where there is an evidentiary basis for it. The case fought at trial was one of murder or nothing, and the introduction of a possible verdict of manslaughter would have been purely speculative, and potentially disadvantageous to the appellant. Thus Gilbert was distinguished. 297 The difficulties facing a trial judge when deciding whether to leave manslaughter to the jury (absent any request to do so either from the Crown or the accused) are both elegantly and persuasively explained in the following passage from the judgment of this Court in Schneidas (at 716): - "There is no difficulty in recognising and stating the scope of the obligation on the trial judge in formulating his summing-up. The very real difficulties encountered in practice are in determining whether the case is one which the evidence would bear a possible conclusion of manslaughter and, if so, in expressing meaningfully to the jury both the basis in law and the relevant factual conclusions upon which it is open to them to base a verdict of manslaughter. If counsel for the accused seeks a direction on manslaughter, then it is to be expected that he will state expressly the basis in law upon which, on the evidence in the case, a finding of manslaughter could be supported. The attempt to crystallise and support the proposition that manslaughter should be put will at times disclose the absence of any valid basis for a finding of manslaughter, thus placing the case within the second of the two categories mentioned above. As has been mentioned in relation to that first category, however, the trial judge, notwithstanding that he may have been assisted inadequately, or even not at all, by counsel for the accused, has the task of directing his own mind to the question of whether a possible conclusion of manslaughter is open on the evidence and, if so, crystallising the legal and the factual matters to be put to the jury in this regard." 298 Their Honours were satisfied in that case that there was no evidence which could possibly support a verdict of manslaughter and therefore the trial judge was correct in declining to put that option to the jury. 299 The Crown submitted (correctly in my view) that in this case the use of a knife or knives and the vicious stabbing of the deceased while he was trapped in a confined space made out an overwhelming case that his assailant or assailants intended to cause at least grievous bodily harm. The appellant, by admitting that he was at the scene and for most of the time in the cabin with the deceased and Patsalis, so closely connected himself with the offence that the jury, if they believed he was involved in the attack on the deceased in concert with Patsalis, could only reasonably have found that he had the necessary intention to warrant conviction for murder. A verdict of guilty of murder amounted to a rejection by the jury of the basis upon which manslaughter might have been found, namely, that the appellant was not a party to a common purpose which included the intentional stabbing or killing of the deceased, and accordingly it was not necessary for his Honour to direct the jury on manslaughter. 300 It was submitted that a conviction for manslaughter in the circumstances of this case would have been, to paraphrase Phan at paragraph 38, contrary to the evidence and directions given, a verdict either out of perversity or mercy. 301 I am conscious of the emphasis which the majority judgments in Gilbert placed upon the benefits which may flow to an accused person by the trial judge instructing the jury that they may convict of manslaughter upon an indictment for murder. However, the qualification remains, and this is clear from the passage cited from the judgment of Lord Tucker in Bullard, that there must be evidence upon which such a verdict can be given. 302 In my view, this is a case where the evidence (absent unjustified speculation) could not reasonably support a verdict of manslaughter. To put it another way: I am satisfied that the Crown excluded beyond reasonable doubt all reasonable views of the facts which are consistent with innocence of murder. 303 If the jury were satisfied beyond reasonable doubt that it was the appellant Spathis who stabbed Mr Ludwig, no question of manslaughter could arise because of the nature of the attack. If, on the other hand, the jury were satisfied that Patsalis, solely, stabbed Mr Ludwig, but that Spathis agreed to join with Patsalis in robbing Mr Ludwig, knowing that Patsalis was armed with a knife, then again, no question of manslaughter could arise because in the circumstances Spathis would necessarily be convicted of murder under the felony murder doctrine. The jury's verdicts indicate that they must have been satisfied of one or other of those hypotheses. 304 For the sake of good order it should be noted that no question was directed to the judge by the jury as to the possibility of a manslaughter verdict. Therefore, the particular problems associated with such questions do not arise for consideration here. The second ground of appeal should be rejected. 305 The third ground is in the following terms: - "The trial judge erred in his directions to the jury as to the elements of felony murder." This ground is specifically directed to paragraph 3(f) " Undecided as to who did the stabbing" under the heading "Felony Murder" in his Honour's written directions. 306 For the sake of convenience, paragraph 3(f) is repeated: "(f) That the one who did not do the stabbing either agreed to the stabbing, or was aware that: (i) his co-accused was carrying a knife at the time of the robbery; and (ii) there was the possibility, amounting to a substantial risk, that in the course of the robbery, the co-accused may stab Klaus Peter Ludwig, thus wounding him, and yet continued to participate in the enterprise. In the circumstances identified in 3, both are guilty of murder, even though you may be uncertain as to either: (a) who, between the two accused, actually did the stabbing; or (b) whether the accused who did not do the stabbing was also carrying the knife. ' Wounding ' is the breaking of all layers of the skin." 307 The court was reminded that in New South Wales it is not concerned with the common law doctrine of felony murder because felony murder at common law is covered in statutory expression by s 18 (1) of the Crimes Act in a modified form: see Ryan at 220-221 per Barwick CJ and 239 per Windeyer J. However, counsel for the appellant drew upon the common law for the following argument. 308 It was submitted on behalf of the appellant that, on its proper construction, s 18 provided that liability for felony murder, in respect of accessories, would appear to be independent of the liability of the principal. Thus the liability of the accessory is no different from the liability of the principal. Thus it must be established that the relevant act (here the stabbing) was done with knowledge on the part of the accessory that it was probable that death or grievous bodily harm would result. 309 Reliance was sought to be placed in this regard on the judgment of the High Court in The Queen v Crabbe (1985) 156 CLR 464, which held, in respect of a charge of murder based upon reckless indifference to human life, that the common law requires proof that the accused did the act causing death knowing that it was probable that death or grievous bodily harm would result. It is not enough that he or she does the act knowing that it is possible but not likely that death or grievous bodily harm might result, unless death or grievous bodily harm is intended. 310 Thus it is contended in the instant case that the trial judge erred in directing the jury that the accused who did not do the stabbing was liable if he was aware that there was the possibility, amounting to a substantial risk, that in the course of the robbery his co-accused may stab Mr Ludwig, thus wounding him. 311 There is no substance in this submission. Firstly, Crabbe was a case in which there was but one accused; it was concerned with reckless indifference to human life and felony murder did not arise. The impugned direction was quite consistent with well established authority. 312 Secondly, it was contended that the trial judge failed properly to direct the jury regarding the causal relationship to be established by the Crown before they could convict either accused of felony murder. Accepting that no specific intent is required for proof of felony murder, the Crown was still required to establish a causal relationship between the underlying felony and the resulting unlawful death. This, it was argued, required a direction to the jury that the death of the victim was a foreseeable result of the underlying felony, i.e., armed robbery with wounding. Again, this submission is quite inconsistent with established authority that the act causing death need not be in furtherance of the common unlawful purpose: see Sharah at 297-298 citing R v Johns [1978] 1 NSWLR 282, particularly at 294-295. 313 Twenty years ago in R v Munro (1981) 4 A Crim R 67 this Court (Street CJ, Nagle CJ at CL and Slattery J) expressly rejected the proposition that there should be recognised some requirement of foreseeability and causal link between the foundational offence and the act causing death. Nothing has been put before this Court to justify the submission that Munro was wrongly decided. 314 Reliance was sought to be placed upon the following passage in an article entitled "A survey of felony murder" by F. C. Moesel in (1954-1955) 28 Temple Law Quarterly 453 at 461: "The requirement that homicide must result from acts done in furtherance of the common design is not a requirement of agency. It is, rather, a requirement of causation than coincidence or occasion. What is meant by this rule is that acts done in furtherance of the felony must relate to the original felonious design and not be collateral acts or excursions by the individual felon unconnected with the general plan." 315 This case does not require an assessment of the correctness or otherwise of Mr Moesel's conclusion. It is sufficient to note that in order for the jury to be satisfied that the accessory was aware that there was the possibility, amounting to a substantial risk, that in the course of the robbery, the co-accused may stab Mr Ludwig, thus wounding him, they would necessarily have to take into consideration the fact that the co-accused had armed himself with a knife to give effect to his intent to rob. To this extent, it could be said that there was a nexus between the foundational crime and the act causing death. The critical question always must be whether the act causing death was within the contemplation of the accessory in his role as a principal in the original criminal enterprise. 316 No point was taken at trial with regard to the matters raised under this ground of appeal and I consider it appropriate that leave should be refused under Rule 4 of the Criminal Appeal Rules. 317 The fourth ground of appeal is in the following terms: - "The trial judge misdirected the jury as to the use of 'relationship evidence.'" 318 The background to this ground of appeal is that on 12 April 1996 Patsalis attended Bankstown Police Station where he (of his own volition) handed a written statement to the police. That statement was tendered in evidence solely against Patsalis and became Exhibit G. At the time of tender his Honour appropriately directed the jury that it was only evidence against Patsalis. The statement described the circumstances under which Patsalis had become indebted to the appellant. It contained material which was detrimental to the character of both appellants in that it disclosed that Spathis wished to obtain a new driver's licence (his licence having been cancelled) in circumstances which were in breach of the law. The statement also indicated that as a result of getting into debt, Spathis made a number of threats to Patsalis in order to secure repayment of the money which, having been advanced, had been gambled away. 319 During the course of the ERISP in which Patsalis participated, he read the statement onto the record and adhered to its truth. During the course of Patsalis' testimony he again affirmed the accuracy of the statement which he read on to the court record. 320 Exhibit G was originally admitted into evidence over the objection of counsel for Patsalis. His Honour ruled that its relevance was that it disclosed a relationship between the two appellants, as provided by Patsalis himself. It was relevant to the relationship between the parties and the question whether they had reached an agreement or understanding to commit a crime. It was also relevant to motive, i.e., whether Patsalis had a motive to murder or rob Mr Ludwig, or to join in a joint criminal enterprise to do so. His Honour carefully considered ss 135-137 of the Evidence Act 1995. At no stage did counsel for Spathis take any objection to the tender of the document against Patsalis. 321 Exhibit G did, however, ultimately come to be treated as evidence in the trial against both appellants. This is because when Patsalis gave evidence, as I have indicated, he adopted the statement, thereby making it admissible against Spathis. 322 Further, it is relevant to note in relation to this ground, there was cross-examination of Spathis by Patsalis (when acting for himself) directed to a number of the matters which contained material detrimental to Spathis' character, which fell into the category of relationship evidence. 323 When summing up his Honour said this in regard to the relationship evidence, including Exhibit G: - "131. Let me pass to the facts and deal first with the relationship between Mr Patsalis and Mr Spathis. Mr Spathis and Mr Patsalis obviously knew each other for some time. Mr Patsalis, I think, suggested that he had known Mr Spathis for, approximately, two years. Mr Spathis suggested rather a shorter period, I think about fifteen months. But it is common ground that at one time they were good friends. It is also common ground that as of 11 April 1996 Mr Patsalis owed Mr Spathis $16,500. 132. Now, they each give very different accounts as to the way in which that debt came about. You have, as part of the material which you may consider in determining the case brought by the Crown against Mr Patsalis, but also the case involving Mr Spathis, the twelve page handwritten document [Ex G] that you remember that Mr Patsalis prepared before he presented himself at the police station at Bankstown on Friday 12 April 1996 at, roughly, 6.20 pm. 133. Now, this was the document he read in the course of the interview which was later conducted. In that statement, Mr Patsalis described the circumstances in which Mr Spathis advanced him the $16,500. You will remember he described three different episodes which he asserted gave rise to the accumulation of that debt. The sequence, broadly, was as follows: Mr Patsalis said that he was approached by Mr Spathis to arrange for the reinstatement of Mr Spathis' licence, it having been cancelled. Mr Spathis said that he took $5,500 for that purpose. Secondly, Mr Patsalis showed Mr Spathis a bankbook and a forged solicitor's letter, or a letter from a solicitor to which he added a number of words, if not a number of sentences. The letter suggested that he was entitled, as did the bankbook, to a substantial sum of money. The letter suggested it was more than half a million dollars in compensation, and certain monies were advanced on the faith of that, I think $5,500. Thirdly, the cigarette deal with a person known as "Asian Tom". They were to be supplied with cheap cigarettes by this person who then made off with the money, I think $6,000, in the case of Mr Spathis. You remember the evidence about the garage at Bankstown, I think. It was the person disappearing up the stairs, and so on. 134. Now, Mr Spathis gave a completely different account. You remember that he gave evidence of a series of transactions, the largest of which I think was about $2,500 or thereabouts. Some were quite small advances. They began on Grand Final day, 28 September 1995. They ended the day before the date of this indictment, that is they ended on 10 April 1996 with an advance of $200, so that Mr Patsalis could go off and have some fun. I will have more to say about the two versions in a moment. 135. But I should repeat a warning I gave to you when the evidence of Mr Patsalis was given and, specifically, when the 12 page document was introduced. Mr Patsalis is charged with murder. Ordinarily, it is not permissible to lead evidence of other conduct which may be misconduct, even criminal conduct, on occasions other than the occasion with which a person has been charged. In other words, which is the subject of the particular charge. The reasons for that are not difficult to understand. There is the danger that such evidence may be used inappropriately or misunderstood. It may be thought that if someone is guilty of misconduct on one occasion, then probably he did what is alleged against him. Such reasoning is wrong and unfair. 136. Mr Patsalis is entitled to ask you to judge him, whether he is guilty or not guilty of the crime for which he stands indicted, upon the evidence which is said to connect him with that crime, that is the crime of murder. The law demands that you should do so. It would be completely wrong and unfair to reason along the following lines; that because Mr Patsalis has acknowledged that he was guilty of misconduct on one occasion, or more than one occasion in the past, therefore, he is a person who is likely to offend again, and we may infer that he is guilty of the matter charged. That would not be a permissible way to reason. 137. Since Mr Spathis, on his version, was party to the scheme to reinstate his licence, it would likewise be unfair and inappropriate to reason the same way in respect of him. 138. The evidence concerning the circumstances in which Mr Patsalis says that he came to owe Mr Spathis $16,500 has been admitted on a limited basis. I will identify a number of purposes for which it may, legitimately, be used. First, such evidence may furnish some insight into the relationship between Mr Patsalis and Mr Spathis and that in its turn may or may not assist you in deciding whether they entered a joint criminal enterprise suggested by the Crown, namely, an agreement to rob and/or murder Mr Ludwig. 139. Further, each has alleged that threats were made against the other, and they describe their response to those threats. The description of their relationship may or may not assist you in assessing that evidence. So, that is the first use to which this evidence may be used, that is the relationship between Mr Patsalis and Mr Spathis. 140. The second is that the material may be of assistance in determining whether there was a motive on the part of either to rob or kill Mr Ludwig. Now, whether you find the material of assistance, in respect of either accused, is entirely a matter for you." 324 Counsel for the appellant Spathis submitted that his Honour erred in admitting Exhibit G because he failed properly to consider the prejudicial nature of the document in so far as it related to the appellant. There was too much scope, it was said, for the document to be misused by the jury to the detriment of Spathis. The prejudice, it was argued, was irremediable. 325 There is a fundamental misconception in the submissions which have been made to this Court in relation to the relationship evidence generally and to Exhibit G in particular. The misconception is that the evidence was "in truth propensity evidence relating to the violent disposition, such as it was, of Spathis". 326 It is manifestly clear that at no stage did the Crown seek to rely upon the relationship evidence as propensity or tendency evidence related to the asserted violent disposition of Spathis or in any other respect. The Crown relied upon the material purely as relationship evidence directed, as I have already said, to give insight into the relationship between the accused which was directly relevant to the issues in this case, including motive to rob and/or kill Mr Ludwig. 327 Relationship evidence serves two purposes. The first is to explain what happened, and why it happened. The second is to furnish the context within which the allegations against the accused may be examined: see Wilson v The Queen (1970) 123 CLR 334 at 338, per Barwick CJ; Harriman v The Queen (1989) 167 CLR 590 at 630 per HcHugh J. 328 And, as Barwick CJ explained in Wilson at 339: "The touchstone is logic. It is not that all the evidence of the relationship of the parties is admissible, but only that from which a relevant inference may logically and reasonably be drawn." 329 McHugh and Hayne JJ said in Gipp v The Queen (1998) 194 CLR 106 at 130-131: - "Without knowing the course of the relationship, the jury may have had great difficulty in accepting that the incidents could have occurred in the way that the complainant described: R v Etherington (1982) 32 SASR 230." 330 In the instant case the relationship evidence clearly passed the test of logic. It was a critical aspect of the Crown case directed to explaining what might otherwise be thought to be an almost inexplicable series of events associated with the robbery, death and incineration of the body of Mr Ludwig. At no stage did either the Crown or his Honour trespass into the field of propensity or tendency in so far as this evidence is concerned. This ground of appeal should be rejected. 331 Ground of appeal 5 is in the following terms:- "The trial judge erred in permitting the Crown pursuant to section 38(1)(c) of the Evidence Act 1995 to cross-examine Mrs Spathis in its case." 332 It is convenient to note at this stage the terms of s 38 of the Evidence Act: "38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party, or (b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence, or (c) whether the witness has, at any time, made a prior inconsistent statement. (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). (3) The party questioning the witness under this section may, with the leave of the court, question the witness about matters relevant only to the witness's credibility. Note. The rules about admissibility of evidence relevant only to credibility are set out in Part 3.7. (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. (7) A party is subject to the same liability to be cross-examined under this section as any other witness if: (a) a proceeding is being conducted in the name of the party by or on behalf of an insurer or other person, and (b) the party is a witness in the proceeding." 333 The Crown called, during its case in chief, Mrs Elizabeth Spathis, who is, and was at the date of the trial, the wife of the appellant. 334 In April 1996 Mrs Spathis was living with the appellant, which was prior to their marriage. On the evening of 12 April 1996 Mrs Spathis was interviewed at the Botany Police Station and a statement was taken and dated that day. Subsequently an ERISP interview was conducted. On the following day a further interview was conducted. 335 In the course of her evidence in chief Mrs Spathis was invited by the Crown, in non-leading questions, to recount certain telephone conversations she had with Spathis on the afternoon and evening of 11 April 1996. 336 According to his Honour, when ruling on this matter, she gave an account which, on any view, was considerably more elaborate than the account which emerged from the above mentioned statements. In particular, she gave evidence that Spathis sounded "weird", and sounded "as though he had been running a marathon" because he was speaking so quickly, and he was acutely anxious. 337 The Crown prosecutor applied to his Honour, bearing in mind these differences, for an order under s 38(1)(a) and (c) to cross-examine Mrs Spathis. In essence, it was argued that her evidence was unfavourable to the Crown and/or inconsistent with her prior statements to investigating police. 338 Counsel for Spathis objected to leave being granted on the basis that her evidence involved (except in one minor respect) nothing more than the embellishment or elaboration of her earlier statements. 339 Referring to s 38(6)(b), his Honour declined to grant leave "for the time being", bearing in mind that Mrs Spathis was still to be cross-examined by counsel for Patsalis and the fact that the Crown had a right of re-examination. 340 However, the Crown renewed its application following cross-examination of Mrs Spathis by counsel for Patsalis and counsel for Spathis. His Honour then granted leave to the Crown to cross-examine Mrs Spathis. 341 On 10 August 1999, his Honour gave reasons for the leave which he granted. It is convenient to quote paragraphs 19-33 of his Honour's reasons for ruling in favour of the Crown, and the precise nature of the specific leave which his Honour gave: - "19. The Crown relied upon s 38(1)(a) and (c). Specifically, it pointed to four matters: · First, the elaboration by Mrs Spathis upon her initial statement was a significant departure from the account previously given. The Crown had sought a short adjournment to confer with Mrs Spathis before she gave evidence . Nothing was said in that conference which signalled the additional evidence which ultimately emerged. Had the Crown been on notice of such evidence, it would have given consideration to whether she should be called in the Crown case. Thought would need to have been given as to whether she could be relied upon as a witness of truth. · Secondly, there was a contradiction in her evidence as to when she soaked the clothing of Mr Spathis. Washing the clothing was material because of the possibility of bloodstains, or other indicia (including smell) which may have connected Mr Spathis with the events of the previous evening. · Thirdly, her description of Mr Spathis, then her fiancee, after his arrival home was significantly different from the description she provided in her evidence. It is the difference between "frustration" and "acute anxiety". A specific cause had been identified for the frustration, namely the car. The acute anxiety on the other hand, was largely unexplained. · Fourthly, Mrs Spathis' description of her conversation with her fiancee before she went to sleep was again significantly different from her statement that "we stayed up and talked about the holiday and the car and went to sleep." 20. There were other matters to which the Crown drew attention, including a conversation between Mrs Spathis and her husband on the way to the travel agent. The original statements did not deal with those matters (either expressly or by implication). They therefore seem to me to be in a somewhat different category. The Response of Mr Spathis 21. Counsel for Mr Spathis responded in a number of ways. The statements provided by Mrs Spathis were clearly not an exhaustive account of her conversations with her fiancee that evening. They were confined to the subject of immediate interest to the police at that time, namely the whereabouts of Mr Spathis, and his car. There had been many conversations in the course of the evening. It was reasonable to suppose that other things were said. The Crown, by the very general questions directed to Mrs Spathis, invited disclosure of the additional material. They cannot now be heard to complain. The elaboration could not be characterised as either 'unfavourable' or 'inconsistent'. Analysis of Evidence 22. In R v Lozano (CCA, unreported, 10 June 1997) Hunt CJ at CL (with whom Barr J agreed) made a number of comments in relation to s 38, and specifically s 38(1)(a). He said this: (at 10) 'Section 38 was intended by the Law Reform Commission to abrogate the common law relating to hostile witnesses (26 ALRC vol 1, par 625), and the Act has been successful in doing so (Regina v Ivan Robert Marko Milat (Hunt CJ at CL, 23 April 1996, unreported, at 4-5). The word 'unfavourable' which is used in the section (and which is not defined in the Act) should not therefore be interpreted as necessarily requiring either the witness or the evidence itself to be hostile or adverse to the case of the party calling the witness, in the sense that the evidence denies that case or attacks other evidence upon which that party relies. In Regina v Souleyman ((1996) 40 NSWLR 712 at 715), Smart J adopted a dictionary meaning of unfavourable as 'not favourable'. I am content, too, to adopt that meaning.' 23. See also R v GAC (CCA, unreported, 19 December 1996) and R v Richard Adam (Wood CJ at CL, unreported, 3 December 1998) especially p 14. 24. The impression created by the statements of Mrs Spathis is of a series of calls to Mr Spathis concerned with the break-down of his car, and delay whilst he waited for a tow truck. Nothing was said which indicated anxiety, or concern on his part for the welfare of his wife, or members of his family. In para 8, having recounted in the first person the conversations concerning the break down, Mrs Spathis concluded her account with these words: 'We spoke about the car a bit more and then hung up.' 25. The impression is reinforced by the opening words of paragraph 11, namely: 'When he arrived home he was frustrated about the car. He had been able to drive the car home. I remember he had oil all over him and he smelt like the car.' 26. The car was still prominent in Mrs Spathis' account as she spoke with her fiancee in bed. Her statement is in these terms: 'After he had showered he came to bed and we stayed up and talked about the holiday and the car and we went to sleep.' 27. I have some misgivings about whether the elaboration by Mrs Spathis may be regarded as 'unfavourable', within the meaning of s 38(1)(a). Simply because a witness may add something favourable to an accused does not render the evidence 'unfavourable' to the Crown. If the elaboration is patently truthful it could not be so regarded in my view. It is 'unfavourable', within the meaning of s38(1)(a), where it may rationally be inferred that the elaboration may be untruthful, and motivated by a desire to assist the accused. 28. On balance, I believe the evidence of Mrs Spathis can be characterised as 'unfavourable' to the Crown in this sense. However, I prefer to determine the matter by reference to s 38(1)(c). 29. The evidence given by Mrs Spathis on 5 August in this Court, taken as a whole, is inconsistent with the statement made to the police on 12 April 1996 in the various respects identified by the Crown. The inconsistencies are open to the construction that Mrs Spathis may have coloured her evidence to assist her husband. Her husband asserted that he was threatened by Mr Patsalis. He sought to explain his actions on 11 April 1996, in part, by reference to such threats. Discretionary Matters 30. Leave under s 38(1) is discretionary. Questions of fairness also arise under s135, s137 and, specifically, s192(2)(b). For a number of reasons, I believe it is appropriate to give the Crown leave to cross examine Mrs Spathis. The cross examination, however, should be limited to certain issues. 31. First, given the cross examination of Mrs Spathis by counsel for Mr Patsalis, the Crown would, in any event, be entitled to seek from Mrs Spathis an explanation for the differences between her statement to the police, and her evidence. Much of the cross examination that can be expected, were leave given, would be material which could be pursued in re-examination without leave (although by non-leading questions). 32. Secondly, the Crown, however, seeks to go further. It wishes to challenge Mrs Spathis, and suggest that she is colouring her evidence to assist her husband. Given the way in which the issue arose, I believe that the Crown should be allowed to put that suggestion (cf s192(2)(b)). I also believe that it is fairer to Mrs Spathis (cf s192(2)(b)). At the conclusion of the cross examination on behalf of Mr Patsalis, the issue was left hanging in the air, unresolved. Although insight may have been provided by re-examination, I believe that cross examination, in the circumstances, is more appropriate. It will provide the jury with a more substantial foundation (which is less speculative) upon which to make its judgment in respect of Mrs Spathis. The conversations which Mrs Spathis recounts are important evidence (s192(2)(c)). 33. Thirdly, the disadvantage to Mr Spathis, were leave given, is ameliorated, in my view, by the timing of the cross examination. Mrs Spathis has been permitted to give her evidence in chief without challenge by the Crown. She has now been cross examined by counsel for the co-accused. As mentioned, that cross examination left certain issues unresolved. Those issues may now be addressed by cross examination by the Crown. I have indicated to Mr Campbell that he may ask further questions of Mrs Spathis at the conclusion of the Crown's cross examination. Leave was therefore given, confined to the following issues: · First, the suggestion in conversations at 8.44 and 8.46pm and later that there was a need for Mrs Spathis and members of her family to stay indoors, and a concern on the part of Mr Spathis for their safety. · Secondly, the issue raised by para 11 concerning the presentation of Mr Spathis upon his arrival home, whether frustration or anxiety. · Thirdly, para 11 generally, including the topic in the final sentence concerning the conversation before going to sleep." 342 I note that the Dictionary in the Evidence Act contains the following definition of a prior inconsistent statement. " prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness." 343 Counsel for the appellant has submitted to this Court that the circumstances of the case did not warrant the grant of leave under s 38(1)(c). It was submitted that in determining whether a statement is inconsistent, one must have recourse to the information or document embodying that information to which the inconsistency is said to arise. The evidence given by Mrs Spathis was not inconsistent but, rather, merely amplified the information that had previously been given to the police. 344 Reliance was sought to be placed upon the ruling of Levine J in R v Mansour (unreported, NSWSC 19 November 1996) where his Honour held that s 38 cannot be availed of in the adversary system purely as a device to cure damage done in cross-examination. 345 In any event, it was argued, in the alternative, that the granting of leave was misconceived as there was ample opportunity for the Crown to re-examine Mrs Spathis and clear up any unresolved issues, without any recourse to s 38. 346 Having carefully considered the reasons advanced by his Honour for the restricted grant of leave which he gave, in the light of criticisms made by counsel for the appellant, I am quite unable to conclude that in any respect the judge's discretion to grant leave miscarried. In particular, this was clearly not a case where an attempt was made by the Crown to exploit the provisions of s 38 in order to rectify damage done in cross-examination. It is of significance to note in this respect that the Crown sought leave under s 38 prior to the commencement of cross-examination of Mrs Spathis. 347 Since the hearing of argument in this appeal the High Court has handed down judgment in Adam v The Queen [2001] HCA 57. The views expressed by the majority of the High Court (Gleeson CJ, McHugh, Kirby and Hayne JJ) in Adam as to the operation of s 38 served to confirm the correctness of the approach which the trial judge took in the instant case. Ground of appeal 5 should be rejected. 348 Ground of appeal 6 is in the following terms: "The trial judge erred in his directions to the jury as to lies in proof of the Crown case against the appellant." 349 Paragraphs 535 to 554 in the summing up clearly identify the lies told by the appellant Spathis and the relevant directions of law by his Honour. "535. Let me go through those requirements in greater detail. First, the requirement that there be a lie by the accused. One way of proving that there is a lie is to prove what someone said in relation to a particular matter, and contrast it with what they knew about that matter. If there is a difference, then that difference may suggest that there is a lie. Another way is to contrast what is said by someone in two different conversations, or even in the same conversation, where there is a contradiction between what the person says on those two occasions. Yet another way is for the person to admit that they may have lied. So in each case you need to be satisfied that the accused made the statements which are attributed to him, and to accept that by reason of facts known to him one statement is untrue, that is it is a lie. So that is the first thing, there must be a lie. 536. Secondly, it must be a deliberate lie. It must be shown to your satisfaction that the accused when he made the statement, which is a lie, knew that it was a lie. A careless, unintentional misstatement of fact or simple mistake could not be regarded as a deliberate lie. 537. Thirdly, you must be satisfied that the statement said to be a lie related to a material matter, that is it related to a matter which is centrally connected with the alleged offence. It has to be something that goes to an important or significant event, not some peripheral matter, but something which is a central event in the Crown case. 538. Finally, the Crown must prove that the accused's motive for the deliberate lie was a consciousness of guilt, in respect of the offence which has been charged, that is the offence of murder. In other words, the Crown must prove that there was no reason for telling the lie other than a fear or belief that the truth would implicate the accused in that offence - I emphasise that offence - that the lie was told to escape the consequences of that offence. I should emphasise that, even if you were satisfied that Mr Spathis or Mr Patsalis told lies motivated by a consciousness of guilt, before that can assist the Crown, you must further be satisfied that what was in the person's mind was guilt, in respect of the offence charged, that is murder not some other crime. 539. Now, I should point out that as a matter of experience in these courts people sometimes do lie, do tell deliberate lies, even lies on very important issues, material issues, for reasons other than an awareness of their own guilt. They may tell lies out of panic. They may tell lies out of fear that they might be wrongly accused of some crime. They tell lies to protect another person who may be guilty of the offence or sometimes to cover up some other misconduct, other than the offence charged. So it is for the Crown to satisfy you on each of these four matters, that is first that it is a lie; second, that it is a deliberate lie; third, that it relates to a material issue and, fourth, that the sole reason that it was told was a consciousness of guilt in respect of the crime charged, that is murder. 540. Now if you are satisfied on those matters in respect of a particular issue it may be added as yet another circumstance which you may consider when determining whether or not, on the whole of the evidence, the Crown has established beyond reasonable doubt the guilt of the accused. Now let me deal with the alleged lies said to have been told by Mr Spathis, and there are six in number that the Crown points to. 541. The first was at the Bankstown Police Station shortly after arrest. There was Mr Spathis, you will remember, who was searched, and there was a conversation between Detective Jacob and Mr Spathis (transcript page 514) where Detective Jacob, having gone through his wallet said 'Where's this money from?', and Mr Spathis said 'It is money from work. I just kept it on me.' And you will remember - well, I have reminded you that the conversation was in the context of that search. So dealing with the four criteria that I have identified, is the statement a lie? The Crown points to the exhibit itself, that is exhibit R, they are the four $50 notes that were removed from Mr Spathis' wallet. It points to exhibit AQ, which is the list of serial numbers where the serial numbers on those notes appear. It says therefore that these notes were not money from work, they were money from Mr Ludwig, that is they were the proceeds of the robbery, and Mr Spathis had taken money from the bathroom that morning and placed it in his wallet. So that is the first issue: Is it a lie? 542. The second issue is: Is it a deliberate lie? You will remember that when cross-examined by Mr Patsalis, Mr Spathis said that he had thought that he had given Elizabeth that morning at the travel agency all of the money that he had taken from the wardrobe. He suggested, in other words, that he made a mistake when he answered the police, he was under the mistaken belief that he handed over to Elizabeth all of the money and therefore if that were right then clearly that would not be a deliberate lie. Now, if you accept that explanation then of course it would not be a deliberate lie, or even if you think that explanation might be true. So that is the second matter. 543. The third matter is: Is it a material matter? The Crown would say that the possession of the proceeds of the robbery ought to be regarded by you as a material matter, that is a matter central to the alleged crime, not something peripheral, and that is a matter for you. 544. Next, was the motive for the lie a consciousness of guilt? Was that the sole motive, a consciousness of guilt of the crime of murder, in other words, not panic or other reasons that sometimes cause people to lie but, rather, a consciousness of the fact that the revelation of the truth would implicate Mr Spathis in the crime, and that was then the subject of the questioning, namely robbery and/or murder. I again emphasise that it is not any crime. It is not the cigarette transaction. That would not be enough. The only crime which is relevant is the crime that is the subject of these charges. 545. Now let me leave that one and pass to three other matters and deal with these globally because, to some extent I think they arise in the same context. 546. You will remember that Mr Spathis acknowledged that in that early stage of the interview with Detective Jacob he was less than frank, and indeed I think when Mr Patsalis questioned him he acknowledged readily that he was lying. In many of the answers that he gave to Detective Jacob, and he told you the reason: His reason was that he was under instructions from Mr Patsalis to deny everything, not to say anything, and he was in fear of reprisals, either against himself or, more especially, against his fiancee and family until such time as he became aware later in the evening of the whereabouts and the safety of his fiancee and the whereabouts in the same police station of Mr Patsalis, at which time he told the police, very candidly on his case, the truth. 547. Now the suggested lies are these. Detective Jacob at page 540 said to Mr Spathis - and this evidence I do think was contested - 'What's this all about? I don't know about a murder.' So that is the next one. So that is suggested by the Crown as lie number two. 548. Lie number three emerges in this passage - this is also taken from Detective Jacob's at transcript page 540: 'Detective Jacob: Do you own a green coloured '73 Datsun? A. Yes. Q. Registration number POZ-344? A. Yes I lent my car to Michael last night. Q. Michael who? A. Michael Patsalis Q. What did he want to do with it? A. I don't know, he just wanted to borrow it.' 549. Now it is suggested that the last sentence, the 'I don't know' is a lie because Mr Spathis was well aware of the use of the vehicle that evening, that is the evening of Mr Ludwig's death. So that is the third one. 550. The fourth one relied upon by the Crown appears at transcript page 540 and 541: 'Detective Jacob: Where were you last night? A. I was at Michael's waiting for him to bring my car back. Q. What time were you at Michael's till? A. About 11 o'clock, I kept ringing him wanting to bring my car back.' 551. Now again it is suggested that this is a lie, because Mr Spathis acknowledged, in his record of interview, his various movements that evening, and it is suggested he plainly did not wait at Mr Patsalis' home for his car to be returned. The matter for you to determine, I remind you, is whether it is a lie, and a deliberate lie, a deliberate lie that relates to a material issue and told out of a consciousness of guilt of this crime, that is murder, and if you accept Mr Spathis' evidence that he was acting on Mr Patsalis' orders and out of fear of reprisals against his fiancee and family, or if you accept that that might possibly be true, then you would not determine that these were lies told out of a consciousness of guilt. 552. Now lie number five relied upon by the Crown, or alleged lie number five, I should say, relates to the various conversations - because I deal with these to some extent globally as well, and I do not think there is any contest about the conversations between Mr Spathis, on the one hand, and Mrs Spathis; and Mr Spathis and Mr Stratikopoulos. These are the conversations where, in the course of the evening on a number of occasions he said words to the effect 'My car's broken down. I am waiting for a tow' and things of that sort at a time when he was in the truck, Mr Patsalis was driving his car; they plainly were not at Parramatta Road waiting for a tow, as Mr Spathis readily acknowledged. So this is said to be a lie. The Crown contends that these were deliberate lies, and that they related to a material issue in that they were designed to conceal his whereabouts and what in fact he was doing. Disclosure of the truth, it is suggested, would have implicated him in the crime that had been perpetrated that evening. Again, it is a matter for you whether the false story, which Mr Spathis acknowledges that he told his wife and his business partner, were told for reasons other than a consciousness of guilt or whether they related to a material issue, that is an impression of the truth, because the truth would implicate him in the commission of the crime. Again, if you accept his version that at all times he was acting under threat of Mr Patsalis, or if you consider that that may possibly be true, then you would not regard those as lies told out of a consciousness of guilt. 553. Now lie number six. The Crown points to what it claims were attempts by Mr Spathis to validate the lie concerning the car playing up, that is the evidence relating to Foxman's auto, the suggestion to Mr Lajkoski that the car was misfiring and spluttering, and generally not running smoothly, and I have read that evidence recently to you, and you will remember that. 554. Mr Spathis, in his evidence in this court, as he said on the evening that he was interviewed, that is not a lie; in fact the car, when he picked it up from Mr Patsalis and drove it was in fact running rough and running rougher, to the point that he had to keep the revs up, in the way that he revs up, as he described. By the next morning, as he said to Mr Lajkoski, it wasn't running too badly but it needed checking over and a tune. So upon the basis of that material, again you will apply your mind to those four criteria. I cannot say them too often number; (sic) lie, deliberate lie, material issue, told out of a consciousness of guilt of this crime, murder." 350 It is not disputed by the appellant that the matters identified by his Honour were lies told by him. 351 It is further conceded that the directions of law complied with the principles laid down by the High Court in Edwards v The Queen (1993) 178 CLR 193 @ 210-211; per Deane, Dawson and Gummow JJ. 352 However, it is contended that error lay in the failure to properly direct the jury in accordance with Osland v The Queen (1998) 197 CLR 333 at 333-334; per Gaudron and Gummow JJ, namely, they should have been directed that should they be of the opinion that the lies told by the appellant were told for a reason other than a realisation of guilt, they could not regard such lies as admissions against interest. 353 In this respect it is necessary to note carefully what their Honours said in Osland. In Osland the Crown did not rely upon lies told by Mrs Osland intended to conceal her husband's death, as going to a consciousness of guilt on her part. The jury was not directed that they might treat her conduct as evidence of guilt. Accordingly it was not directed in the manner required by Edwards. 354 However, Gaudron and Gummow JJ considered that there was a real risk that the jury might reason that, because she lied about her husband's disappearance, she must have known that he had been the victim of premeditated murder. Thus, their Honours said that where there is a risk that a jury might treat lies as evidence of guilt, the preferable course is for the trial judge to ascertain precisely what use the prosecution contends may be made of the evidence in question. And if the evidence is to be left to the jury as evidence of guilt, it should be instructed as required by Edwards. If not, it should be instructed that the evidence is relevant only to the credit of the accused. Only by adopting that course can a trial judge guard against a perceptible risk of injustice. 355 In the instant case, the Crown Prosecutor made it clear, prior to addresses and his Honour's summing-up, that the Crown relied upon the lies told by Spathis as going directly to a consciousness of guilt of the crime of murder. Thus, his Honour gave a direction which, admittedly, conformed entirely with the principles laid down by the High Court in Edwards. Therefore, there was no scope for the possible conclusion which concerned Gaudron and Gummow JJ in Osland. Specifically it was not necessary for the jury to be instructed that the evidence was relevant only to the credit of the accused. 356 The trial judge gave a direction (in paragraph 544) to the effect that the only crime that was relevant for a finding of consciousness of guilt, was the crime which was the subject of the charge, namely murder, with no lesser offence such as the illegal cigarette transaction being sufficient. 357 It was submitted that this was erroneous. His Honour should have directed the jury that the relevant admissions were sufficient in law to establish the commission of a number of different offences but not murder, in particular the offence of Misconduct with regard to corpses pursuant to s 81C of the Crimes Act. Other offences in relation to which an inference was available included robbery with wounding (s 96) or robbery with arms and wounding (s 98). 358 It was submitted that his Honour erred in failing to direct on other potential offences in relation to which an inference of consciousness of guilt was available. 359 This submission seems to me to raise the question whether in directing the jury that there may be reasons other than realisation of guilt of the crime of murder, why Spathis told the lies (as required by Edwards), his Honour should have drawn the attention of the jury to the fact that the accused may have told the lies to avoid implication in the other offences identified in the above submission. 360 This submission lacks substance because, effectively, his Honour made that perfectly clear to the jury in the following passage in paragraph 538: "I should emphasise that, even if you were satisfied that Mr Spathis or Mr Patsalis told lies motivated by a consciousness of guilt, before that can assist the Crown, you must further be satisfied that what was in the person's mind was guilt, in respect of the offence charged, that is murder not some other crime." 361 It was completely unnecessary, in my view, for his Honour to elaborate that direction by referring to other criminal offences of which Spathis was seeking to avoid disclosure. 362 In my view this was an exemplary direction on lies which provided the appellant with completely adequate safeguards against the jury misusing the evidence of lies, admittedly told, which was before them. Ground of appeal 6 should be rejected. 363 Ground of appeal 7 is in the following terms: - "The trial of the appellant was rendered unfair by reason of the trial judge not granting a separate trial in circumstances where Patsalis made a tactical decision to represent himself and to conduct his own defence in a manner prejudicial to the appellant." 364 Prior to commencement of the trial there was an application by Patsalis for a separate trial on the basis that a joint trial would bring about a positive injustice to him. Both Spathis and the Crown objected to separate trials; Spathis contending that "severance may operate so as to deprive (him) of a fair trial". The application was rejected by Kirby J on 30 June 1999, his Honour's careful reasons for judgment being reported at (1999) 107 A Crim R 432. 365 In what was referred to by counsel for Spathis as "a tactical decision", Patsalis terminated his counsel's retainer after the close of his own case and just after Spathis opened his case. The decision to terminate his counsel's retainer was made by Patsalis following his instructions (which were not accepted) to put a lengthy series of questions to Spathis from a prepared document. The document consisted of "a thousand page question and answer script." (Transcript 2178). No application was made by Spathis' counsel for a discharge of the jury and a separate trial after Patsalis undertook his own defence. 366 Thereafter, Patsalis conducted his own case including the cross-examination of Spathis. During the course of this cross-examination Patsalis put a series of questions including allegations that Spathis was untruthful and told lies to the police prior to participating in his ERISP (see transcript 2269-2271, 2276-2282). 367 It was submitted that Spathis was clearly prejudiced to a manifest degree by Patsalis' tactical decision. Such prejudice was irremediable, it was said, and had the tendency to distract the jury's attention from the real issues relating to Spathis' defence. Further, there was a real risk that the jury would, in these circumstances, fail to distinguish between the two separate cases. As the trial continued, there was potential, it was said, for manifest injustice to Spathis which could only be avoided either by discharging the jury in respect of Spathis and continuing the trial as a separate trial or by the giving of very full and detailed directions to the jury sufficient to exclude the risk of prejudice. 368 Reliance was placed upon the judgment of this Court in R v Taouk (unreported, 17 December 1992) which held that where the defence of one accused is conducted in a manner likely to prejudice the co-accused, very careful directions are called for; and if the nature of the prejudice is such that no direction can overcome it, the judge should discharge the jury in respect of that co-accused and order that he be tried separately. See also R v Hauser (1982) 6 A Crim R 68, a case which emphasises the care which must be exercised by the trial judge in a joint trial to avoid prejudice to a co-accused. 369 One instance is given in the written submissions on behalf of the appellant Spathis of prejudice likely to have occurred to him as a result of a submission by Patsalis to the jury in his closing address. This involved a criticism of Spathis in relation to a matter that was not put to him by Patsalis in cross-examination, in breach of the rule in Browne v Dunn. 370 The Crown has pointed out however, that a careful direction was given by his Honour in his summing up directed to avoiding any possible prejudice to Spathis by this submission. 371 Counsel for Spathis at the trial made no application either for a discharge of the jury in relation to the case against him or for separate trials as a consequence of the events which followed the termination by Patsalis of his counsel's retainer. 372 This case may be distinguished from Taouk, where this Court held that there had been a miscarriage of justice as a result of a vociferous attack by the co-accused's counsel on the principal police witness, which prejudice was incapable of being cured by a direction. 373 Difficulties always arise in the conduct of a joint trial where one party is unrepresented. A careful reading of the transcript does not reveal sufficient cause for concern that the difficulties created by Patsalis representing himself were such as to have caused a potential miscarriage of justice. Obviously trial counsel for Spathis took the same view. In the circumstances I would allow this point to be argued, but ground 7 should be rejected. 374 Ground of appeal 8 is in the following terms: "The appellant received an unfair trial in that his trial counsel erred in not leading relevant evidence and failed to make applications for separate trial on behalf of the appellant." 375 Dealing first with the submission that trial counsel for Spathis erred in not leading relevant evidence as to his client's good character, it is relevant to note that at an early stage in the proceedings counsel informed his Honour that Spathis would raise character (transcript 865). Counsel relied in this regard on cross-examination of police witnesses that prior to the subject charges Spathis had never been in trouble with the law and consequently had no criminal record. When Mr Stratikopoulos (the appellant's business partner) was called by the Crown he was cross-examined by counsel as to Spathis' good character. That cross-examination adduced the following evidence, which was not the subject of challenge: - "Q. You had been in business with Alex for I think you said 18 months or so, how was he as a partner? A. He was good. Q. Was he – A. He was honest, always on time, we never had a problem together, ever, ever. There was no problem with money. If he said he was going to do something he done it and likewise for me. We always met each other at each other's words that's it. It was sweet. Q. As you know he was charged with the matter before this court and in effect that charge resulted in this business coming to an end? A. Correct. Q. Subsequently you and he have got into another venture together, that is you are both driving in the same business together now? A. That's correct. Q. How do you find him now? A. The same as he always was, happy, cheerful, honest. And just a top bloke. Q. Has he ever displayed any signs of violence to you? A. Never." (Transcript at page 895). 376 Mr John Spathis, the uncle of the appellant, was called by the Crown. He was cross-examined by counsel for the appellant to the following effect: - "Q. You were asked some questions about your relationship with Alex your nephew, and you said that the two families were fairly close but that you didn't see very much of Alex, is that right? A. That's true. Q. You have seen him grow up? A. Yes, I do. I did. Q. From you observation and the contact you had with him what sort of a fellow is he? A. He's a really nice guy. Q. You have likewise come to know his wife Elizabeth? A. Yes, I have. Q. How does he present to you as a husband of hers from the observations you have made? A. Really good." (Transcript at page 1120). 377 Trial counsel did not call any evidence on the question of good character in the defence case, but sought to rely wholly on the above quoted evidence established in the Crown case. 378 Patsalis did not raise good character. The raising of character by Spathis was something of a "two-edged sword" in that there was countervailing evidence on which the Crown could rely to neutralise the good character evidence led by Spathis. So much is clear from the following instructions which his Honour gave to the jury on the question of character: - "563. Mr Spathis has called evidence to establish that he is a person of good character, and I will shortly refer to that evidence. If you find, upon the basis of that evidence, that Mr Spathis is indeed a person of good character that finding is relevant in two ways. First, the fact of good character may persuade you that the Crown submission that Mr Spathis is implicated in a crime is mistaken. A person of good character is unlikely to have committed the offence or an offence. 564. Secondly, if you accept that Mr Spathis is a person of good character that fact may persuade you to give greater weight to his evidence on oath denying his guilt, in other words good character also is relevant to the issue of credibility. The possession of good character may persuade you that Mr Spathis' evidence is more worthy of belief and is the more reliable. 565. Now none of that of course means that good character provides an accused person with some kind of defence. It is one of many factors which you must take into account on the question of guilt. It may or may not be the determining factor but that is a matter for you to determine. 566. What is the evidence relating to Mr Spathis' character? First, Mr Spathis described his life before these events, and he said that he had never been in trouble with the law; 12 April 1996, when he was arrested, was the first time that he had been to a police station. 567. Secondly, Sergeant Jacob, after Mr Spathis' arrest, made a number of routine enquiries to determine whether or not Mr Spathis was known to the police. He determined that he had no criminal record, and you will remember that he updated that search at the time he gave his evidence and that remained the position. There is no suggestion whatever that Mr Spathis has ever previously been in trouble with the law. 568. Thirdly, Mr Stratikopoulos, Mr Spathis' business partner, also gave evidence about Mr Spathis' character. They had a partnership agreement which was purely informal; it was made on the handshake, and he had found Mr Spathis to be absolutely honest and reliable. He had never had problems with him. He always kept his word. He was a happy and cheerful fellow, and he was described by Mr Stratikopoulos as a top bloke. He had never known him to be violent. He, Mr Stratikopoulos, you will remember, such was his faith in him, had even gone into another venture with him and was still his business partner. 569. Finally, Mr John Spathis, who was the uncle of Mr Alex Spathis, gave evidence concerning his nephew's character. He had watched him grow up. He came from a close-knit family. He described Mr Alex Spathis as a really nice guy and a good husband. 570. Now, there is evidence the other way which you may consider or which you must consider when you are forming your view. 571. First, Mr Spathis acknowledged that he gave money to Mr Patsalis in the belief that Mr Patsalis could corruptly organise the reinstatement of his driver's licence which was then cancelled. 572. Secondly, on Mr Spathis' version, he described his actions on the evening of 11 April and they were the actions, he acknowledged, of a person who was prepared to lend some form of assistance in the commission of a crime. You will remember his words in the record of interview, namely, 'I knew this was illegal. I wasn't happy with it, but I had to get my money back'. 573. Thirdly, Mr Patsalis gave an account of a number of conversations that he alleges that he had with Mr Spathis. He asserted they discussed or Mr Spathis, rather, suggested a number of robberies, including one of a woman who was an invalid, and who owned a valuable comic collection. You will remember Mr Campbell's cross-examination of Mr Patsalis in respect of that, namely that this was an absurd suggestion. This woman in fact had a husband and knew Mr Spathis well, and this was an example of Mr Patsalis taking something which had a small grain of truth, embellishing it and turning it into a wicked lie. It is suggested, on behalf of Mr Spathis, that you would give no credence to these allegations by Mr Patsalis. 574. Mr Patsalis, on the other hand, insisted that what he was saying was true. 575. Now, ultimately, these are matters for you to consider and determine. If you find Mr Spathis has good character, he is of good character, you may take that into account in the way that I have identified. If you do not accept that he is of good character then you must put this matter to one side. 576. If you took a view which was adverse to the view that Mr Spathis is of good character, that must not be used to in any way strengthen the Crown case against him. It would, I emphasise, be entirely wrong for you to reason that he is a person of bad character or suspect character, therefore he is guilty of the offence charged. You simply put it out of account. It is something which he points to as something which can favour him in various ways, if you accept it, but if you do not accept it you certainly cannot penalise him in respect of it." 379 And then later when summarising submissions by Spathis' counsel, his Honour said: - "604. Further, he points to the way in which Mr Spathis gave his evidence. His version remains consistent. His version fits with the other evidence, apart from that of Mr Patsalis. It does not offend commonsense, he suggests. And, fourthly, look at the man himself. He is a person who has raised character. He is a person with past good character and unlikely to offend. There is nothing in his past which suggests that he is in any way disposed to violence. The reverse. He is a gentle person. That character can also be used when you assess his credibility. Certainly he was gullible, and he was led by the nose by a person who had the ability to spin a tale, to take a grain of truth and embellish it and transform it into a wicked lie, and the aspersions against his character, the suggestion of guns, the suggestion of cartoon collections which were going to be taken from an invalid woman, depend upon the word of Mr Patsalis, and you would not accept that word. Mr Patsalis, he suggested, acknowledged, in the context of the accumulation of the debt, that he was a liar and a person who had deceived Mr Spathis." 380 In written submissions, counsel for Spathis stated that they had been instructed that there were a variety of character witnesses who were at court at the relevant time, whom trial counsel refused to call, notwithstanding the instructions of the appellant that they were available to be called on his behalf to establish good character. No affidavit was filed on behalf of the appellant in support of this ground identifying the witnesses who were said to be available to be called on the issue of credit, but who were not called. 381 When the absence of such evidence was raised on the hearing of the appeal, counsel for the appellant stated that he was relying upon the fact that over 40 references were tendered to his Honour on the sentence proceedings and this was an indication that a significant number of persons would have been available at trial to be called in support of Spathis' prior good character. 382 A good proportion of these references were written by relatives of the appellant but in addition there were a number written by persons who occupied diverse positions in the community. 383 Indeed, when sentencing the appellant, his Honour said: "Before these events, Mr Spathis led an exemplary life. It is plain from the many references provided that he was held in high regard by a great many people. He had no criminal convictions. He was in full time employment in a variety of jobs. At the time of these events he had his own business (in partnership) running a bistro at the Three Swallows Hotel at Yagoona." 384 It is perhaps appropriate to comment, however, that in these remarks on sentence his Honour emphasised the gravity of the objective circumstances of the crime in the following terms: - "By any standard, this was a cold-blooded and shocking crime. The deceased was lured into a trap. He was alone. There was no suggestion that he was armed. He was out-numbered. He was taken at night to a deserted location where he was attacked. He was repeatedly stabbed, such that he died almost at once. Counsel for Mr Spathis submitted that the wounds suggested frenzy, and were consistent with panic. Certainly, there were multiple wounds, front and back, and to the head. The victim was given no chance. There is nothing in the evidence which suggests panic to my mind. Mr Ludwig was deliberately slain where he sat, between Mr Patsalis and Mr Spathis." 385 Later in these remarks his Honour, rejecting a submission to the contrary, concluded beyond reasonable doubt that there was premeditation of murder on Spathis' part. 386 I refer to these remarks to emphasise the fact that trial counsel for Spathis was faced with a powerful Crown case which encompassed objective evidence of grave criminality on the part of Spathis. 387 Trial counsel was faced with a difficult tactical decision in these circumstances with regard to the amount of evidence he should lead on the question of character. Added to this was the length of time which the trial occupied (overall some 45 days). Counsel in these circumstances was entitled, in my view, to conclude that no real benefit would accrue to the appellant by occupying additional hearing time by calling further character evidence. 388 The instant case is vastly different to cases such as R v Birks (1990) 19 NSWLR 677, R v Hamilton (1983) 68 A Crim R 298 and R v Hunter and Sharah [1999] NSWCCA 5. The touchstone identified in each of these cases is that if this Court has a "lurking doubt" that the appellant might have suffered some injustice, as a result of some flagrantly incompetent advocacy by his or her advocate, then it would quash the convictions. In the instant case I would have difficulty in concluding or having "a lurking doubt" that it was imprudent of trial counsel not to have led further character evidence, far be it from concluding that he was guilty in this respect of flagrantly incompetent advocacy. This submission should be rejected. 389 It is necessary however, to consider in this context, the second limb of this ground of appeal, namely, that trial counsel failed to make applications for a separate trial on behalf of the appellant. 390 In this regard I have already indicated that ground 7 should be rejected, which ground asserted that the trial judge erred in not granting a separate trial after Patsalis elected to conduct his own defence. Ground 8, however, is concerned with the asserted failure of trial counsel to make an application for a separate trial, a distinction being drawn between the judge declining of his own motion to order a separate trial and the fact that no such application was made to him. 391 It is further argued that counsel for the appellant erred in pressing for a joint trial at the time Patsalis unsuccessfully applied for separate trials. 392 In this respect it is argued that a comparison of the respective records of interview of each accused discloses greater prejudice flowing to Spathis than to Patsalis, such prejudice being constituted by the greater length of the record of interview and the allegation of bad character on the part of Spathis raised therein. It was said that the only way to cure such prejudice was by way of separate trials. 393 The problem was aggravated by the fact that during Patsalis' evidence in chief he raised, for the first time, allegations of physical violence perpetrated against him by the appellant. At that stage a separate trial should have been sought. 394 Finally, it is said that irrespective of what had transpired in the past, the dismissal by Patsalis of his counsel created a situation where an application for a separate trial was imperative. Of course, one does not know what decision the trial judge would have made if an application had been made to him by trial counsel when Patsalis withdrew his counsel's retainer. 395 In my view, the overriding factor is that this was quintessentially a case for a joint trial. That was the position at the commencement of the trial and it remained so during the course of the trial. 396 It would have been a serious disadvantage to the presentation of the Crown case against the two accused if the Crown had been required to present its case separately. This is manifestly clear from the nature of the evidence which the Crown called and the interrelationship between the conduct of the two accused. 397 It is now well established that: "In determining the practical content of the requirement that a criminal trial be fair, regard must be had 'to the interests of the Crown acting on behalf of the community as well as to the interests of the accused', per Deane J in Dietrich v The Queen (1992) 177 CLR 292 at 206 quoting Gibbs ACJ and Mason J in Barton v The Queen (1980) 147 CLR 75 at 101. Relevantly, in Moss v Brown [1979] 1 NSWLR 114 at 126, the Court of Appeal (Moffitt P, Reynolds and Hutley JJA) said: 'In any discussion of fairness, it is imperative to consider the position of all parties. It is sometimes forgotten that the Crown has rights and, as it has a heavy responsibility in respect of the invoking and enforcement of the criminal law, which includes seeing that the public revenue is not imposed upon, it is entitled to maintain these rights, even if they may bear heavily upon some accused. As Lord Goddard CJ said in Grondkowski [1946] KB 369 at 372: 'The judge must consider the interests of justice as well as the interests of the prisoners'." 398 For the sake of completeness it should be noted that evidence has been placed before this Court by the Crown that attempts were made by the solicitor responsible for the conduct of the appeal to obtain an affidavit from trial counsel "stipulating his reasons for not calling additional character evidence and not making an application for separate trials when Mr Patsalis dismissed his lawyer during the trial." However, the solicitor was ultimately informed that the appellant would waive his legal privilege in this regard. 399 Ground 8 should be rejected. 400 Supplementary ground of appeal 1 is in the following terms: - "The trial judge erred in not excluding under s 424A of the Crimes Act 1900, the evidence of admissions to the arresting police officers." 401 Section 424A of the Crimes Act 1900 applied at the time of the trial. It has since been repealed and replaced by s 108 of the Criminal Procedure Act 1986. For present purposes it is only necessary to note sub-section 2 of s 424A, which was in the following terms: "(2) Evidence of an admission is not admissible unless: (a) there is available to the court a tape recording made by an investigating official of the interview in the course of which the admission was made, or (b) if the prosecution establishes that there was a reasonable excuse as to why a tape recording referred to in paragraph (a) could not be made, there is available to the court a tape recording of an interview with the person who made the admission about the making and terms of the admission in the course of which the person states that he or she made an admission in those terms, or (c) the prosecution establishes that there was a reasonable excuse as to why the tape recordings referred to in paragraphs (a) and (b) could not be made." 402 In order to appreciate this ground it is necessary to trace some of the history of the trial. First it is necessary to note the evidence that is the subject of dispute. On the day following the death, Detective Sergeant Jacob together with Detective Jubelin went to the Three Swallows Hotel, Yagoona which was the appellant's place of business. Detective Sergeant Jacob gave evidence in chief that he saw a person identified to him as the appellant, and said to him: "… 'Are you Alexios Spathis?' He said, 'Yes.' I said, 'I'm Detective Sergeant Jacob and this is Detective Jubelin from the Homicide Squad.' He said, 'What is this about?' I said, 'We would like to speak to you about the murder of a man whose body was found at Terrey Hills earlier today.' He said, 'I can't leave work.' I said, 'Well you are under arrest in relation to this murder, you'll have to come to Bankstown police station with us now. Is that your jacket?' He said, 'No, it's Peter's.' The accused indicated another male person who was in the bistro area. The accused was led out to the police vehicle where he was searched by Detectives MacNamara and Banfield. I saw a quantity of money, a set of keys and personal papers taken from him and retained by Detective MacNamara. I said, 'Where is this money from?' He said, 'It's money from work, I just keep it on me.' The accused was placed in the rear of the police vehicle. The accused said, 'What's this all about? I don't know about a murder.' I said, 'I'll explain exactly what this is about at Bankstown police station.' The accused was taken to Bankstown detectives' office where he was taken to an interview room and seated. The accused was offered a meal or refreshments but declined. I then made some inquiries and about 10.03pm I returned to where the accused was seated and in the presence of Detective Jubelin I said, 'Before I speak to you about this matter I want you to understand that you do not have to say or do anything, but anything you say or do may later be used in evidence, do you understand?' He said, 'Yes.' I said, 'I have reason to believe that you were involved in the death of a man named Klaus Peter Ludwig whose body was located at Terrey Hills earlier today, what do you say about that?' He said, 'I don't know about it.'" (Transcript 540). 403 The appellant was then cautioned and asked certain questions directed to determining whether he was involved in Mr Ludwig's death. In response he told certain lies which were the subject of the later direction on lies which his Honour gave in summing up. These are the lies referred to in ground of appeal 6, which has been dealt with above. Counsel for the appellant contends that these lies constituted admissions within the meaning of s 424A in reliance upon the judgment of this Court in R v Horton (1998) 45 NSWLR 426. The question whether such lies could constitute admissions within the meaning of s 424A will be considered shortly. 404 There was no objection at trial to the tender of this evidence upon the basis that there was a failure by the police to comply with the requirements of s 424A(2). The apparent reason for there being no objection, this Court was told, is to be found in the history of the matter. 405 When opening the case for the Crown, the Crown prosecutor did not refer to these alleged lies, presumably because he thought they may be the subject of objection when tendered. However, when Mr MacGregor QC for Patsalis opened the case for Patsalis, immediately following the opening of the Crown case, he said: "So there are a number of extremely significant matters. It was Mr Patsalis who went to the police. It was Mr Spathis who lied to the police about the matter, he had to be arrested, they had to go to his home - I think they may have gone to his work, I don't want to mistate the evidence, there will be evidence, and when he first gave his account to them he denied any knowledge of what had happen (sic)" (transcript 275). 406 At some stage prior to Detective Sergeant Jacob giving evidence, the Crown prosecutor reached an agreement with counsel for Spathis, that the Crown would not seek to rely upon the lies told to Detective Sergeant Jacob as constituting consciousness of guilt. His Honour was not aware of such an agreement until much later in the trial. 407 At the close of the Crown case his Honour was informed that there would be no application for a direction concerning lies with regard to any of the material preceding the record of interview, that is to say, as to lies demonstrating a consciousness of guilt, in so far as Spathis was concerned. This was consistent with the agreement between the Crown and counsel for Spathis, to which reference has already been made. 408 The position then became complicated by the fact that when Spathis was being cross-examined by Patsalis, reference was made to the conversations with Detective Jacob prior to the ERISP. The relevant evidence is as follows: - "Q. You accept that during those conversations you were being less than frank with the police officers? Yes. Q. Why was it that you weren't being forthright when you were being asked those questions? A. I was told not to say anything to anyone. I was - I thought I was protecting my family. I didn't know what was going on. Q. Then at 12.20 you were told by Detective Jacob that he had reason to believe that you were directly involved in the death of a man whose body was found at Terrey Hills and that he would like to interview you about it? A. Yes. Q. Do you remember that question? And your reply is that 'If you have got half an hour, it will take some time to tell you. I have been threatened. My family has been threatened. My girlfriend has been threatened'. Do you recall that? A. Yes. Was it at that point that you made the decision to come forward and tell the police what happened? A. Yes." 409 Prior to Patsalis cross-examining Spathis, his Honour warned Patsalis, he then being unrepresented, that if he cross-examined Spathis with regard to the pre-ERISP lies told by Spathis, those statements would become evidence in the trial generally, as distinct from being, as they were at that stage, evidence only against Spathis. 410 Nevertheless, Patsalis cross-examined Spathis at some length with regard to the pre-ERISP conversations, and elicited from him admissions that a number of his answers were deliberate lies, Spathis claiming in his defence that he told those lies out of fear of Patsalis, who, he claimed, had threatened that he would harm him, his girlfriend and his family. Spathis denied that he had told the lies to cover up his killing of Mr Ludwig. 411 Prior to Spathis concluding his evidence, his Honour informed counsel that he would be giving the traditional direction as to lies, where the Crown relied upon them as being indicative of a consciousness of guilt, and that such direction would include the pre-ERISP lies by Spathis. His Honour indicated during discussion that he was not bound by any agreement out of court by counsel. 412 On appeal, the Crown has contended that Spathis' counsel clearly had tactical reasons for allowing the evidence now impugned to be led. Allowing that Mr MacGregor would be cross-examining on the evidence, there was a tactical advantage to Spathis to allow the evidence in the Crown case in an attempt to ensure that subsequent cross-examination on this topic was not given greater impact when introduced for the first time at a much later stage in the trial and, presumably, over objection. 413 It was submitted on behalf of the appellant that as a consequence of the events which occurred, as outlined above, the Crown obtained an unfair, albeit not deliberately unfair, tactical advantage. Once the evidence was in, it left the way open for Patsalis to cross-examine Spathis about the lies, albeit there was necessarily consequential damage to Patsalis' own case. 414 Although the submission was not developed, the Crown submitted on the appeal that Horton was wrongly decided. This submission is based on the recent decision of the Full Court of the Federal Court of Australia in The Queen v GH (2000) 105 FCR 419 where the majority held that lies do not constitute admissions within the meaning of that expression in the Evidence Act 1995 (Cth) which is identical, in relevant respects, to the Dictionary definition of admission in the New South Wales Evidence Act. 415 The Crown can also obtain support for its submission that lies do not constitute admissions within the meaning of s 424A in R v Ajiit Sing Sat-Bhambra (1989) 88 Cr App R 55 and R v Clarke; Ex Parte Attorney-General of Queensland [1999] QCA 438. 416 This is an important debate and ultimately will have to be resolved in an appropriate case, perhaps, by a five judge bench. In R v Reed [1999] NSWCCA 258, Spigelman CJ was dealing with an identical situation to that which arose in the instant case, in that no objection was taken to the admissibility of statements (alleged to be lies) made to police officers apparently in breach of s 424A. The Chief Justice held that the words "is not admissible" in s 424A should be construed as meaning "is not admissible over objection." The full passage in his Honour's judgment, upon which the Crown relies, is as follows: - "The Parliament was well aware, particularly in the context of legislation cognate with the general amendments to the scheme of evidence contained in the Evidence Act 1995, that the usual course of proceedings in trials under the adversary system requires objection to be taken to evidence. The words 'is not admissible' should be construed as meaning 'is not admissible over objection.' The usual practice in the course of trials was part of the total context in which Parliament used these words and the narrow literal interpretation propounded on behalf of the Appellant is not appropriate." 417 There being no objection to the tender of the evidence in the instant case, his Honour was perfectly entitled to allow the evidence to proceed and not raise an objection of his own motion. 418 Thereafter, as the matter developed and Patsalis was cross-examined about the lies in detail (without objection), his Honour was left with no alternative but to give the jury a full Edwards direction to ensure that the jury fully understood the true legal significance of the lies in the context of the case as a whole. It must not be forgotten that the jury had before them an explanation by Spathis for the telling of the lies. This ground of appeal has, in my view, not been made out and should be rejected. 419 Supplementary ground of appeal 2 is in the following terms:- "The Appellant received an unfair trial in that, in admitting the depositions of Lionel Redfearn (a witness who was deceased), the trial judge failed to give a proper or adequate warning to the jury as to the use of that evidence." 420 Mr Redfearn gave evidence at the committal proceedings when a statement which he had made to the police officers was tendered and he was cross-examined by counsel for Spathis. Mr Redfearn's evidence was directed to a conversation which he had with Mr Ludwig on the afternoon of the day of his death. The significant paragraph from his statement is in the following terms: - "On Thursday 11 April 1996 at about 5.30 pm Peter Ludwig contacted me and we had some general conversion relating to lending. Then I said during the conversation, because he appeared agitated, 'you sound very agitated, Peter. What appears to be the problem?' He said, 'Look, Lionel, I am arranging to meet one or two people tonight and I will be carrying a large amount of money on me.' I said, 'Who are the people?' He said, 'I met them a couple of months ago. I don't know what they are like.' I said, 'Where did you meet them?' He said, 'One I originally met in a hotel, but I will be meeting the other one tonight. He will be taking me to the second one tonight.' I said, 'Where are you meeting him?' He said, 'I can't tell you that. I don't know.' I said, 'When will you be meeting them?' He said, 'Very shortly. I have written a letter or note which I intend to leave with a friend in the event that something does happen to me'." 421 It was accepted that the significance of Mr Redfearn's evidence was that it went to the issue of the victim's state of mind on the day of his death and also to the issue of the number of men he was to meet that evening. 422 There was cross-examination at committal, that the police had indicated to Mr Redfearn that two persons had been charged, but there was no cross-examination as to the reliability of his recollection regarding the number of persons involved. 423 When the Crown became aware of Mr Redfearn's death, notice was given to the appellants under s 409 of the Crimes Act (now s 112 of the Criminal Procedure Act 1986) that the Crown proposed at the trial to tender Mr Redfearn's deposition. Notice was also given under s 67 of the Evidence Act 1995 of the Crown's intention to tender the deposition. The deposition does, of course, contain hearsay. 424 When this matter was raised at a relatively early stage in the trial, his Honour gave a general ruling to the effect that evidence relating to suspicions or feelings of the deceased Mr Ludwig, should not be permitted to be led (transcript 1088). 425 His Honour then left it to counsel to endeavour to reach an agreement as to suitable editing of the deposition. Counsel for both appellants reached agreement with the Crown prosecutor as to the editing. Thus by consent, the statement of Mr Redfearn and deposition of his evidence in the committal proceedings was tendered against both appellants. The material was then read to the jury. His Honour did not give a warning at that stage in the proceedings as to the reliability of such evidence, however he was careful to give an appropriate warning during the course of his summing up. Firstly (at paragraph 190) his Honour gave the traditional warning in respect of hearsay evidence to comply with s 165(1)(a) and (2) of the Evidence Act. Then he gave a specific warning in relation to Mr Redfearn's deposition in the following terms (at paragraph 193): - "In the case of Mr Redfearn, the gentleman who died after he had given evidence in what is referred to as the committal proceedings, and before these proceedings, you do not have the advantage of seeing him in the witness box. You do not, therefore, have the advantage of seeing him cross-examined. You remember that he was cross-examined, indeed, cross-examined by the very counsel who appears in this trial for Mr Spathis, Mr Campbell. However you have not actually seen him give that evidence, although it has been read to you. In each case you must exercise some care in assessing the reliability of this evidence. You may accept it, however, you should be aware that it may be unreliable." 426 At a later stage in the summing up his Honour referred to further aspects of Mr Redfearn's deposition and repeated his earlier warning (paragraphs 265-267). 427 After the jury had retired to consider their verdict they returned shortly thereafter with a note, paragraph 2 of which was in the following terms: - "(2) Could we have transcript of all your Honour's summing up; Mr Redfearn's evidence/interview; Mr Rohlfs' evidence/interview; (b) Mr Grisdale's evidence/interview?" 428 Having informed the jury that such transcript would be made available, his Honour gave the following further warning (at paragraph 634): - "As to the remaining paragraphs, Mr Redfearn's, Mr Rohlfs', Mr Grisdale's evidence, they can be provided and will be provided. I trust the Crown can arrange that, but that may take a little time, so you probably wouldn't get them until some time tomorrow. When you do get them, I might just remind you that, in each case, the warning, which I gave you, in respect of hearsay evidence, may well have application. In other words, in some cases and, certainly in the case of I think Mr Redfearn, indeed, in all cases, they include conversations with others where you have not seen that other person. For instance, they include conversations with Mr Ludwig, so that insofar as that conversation incorporates statements of fact, then you must be aware that there are dangers in simply acting upon that statement. You must be aware that there is the danger that it may be unreliable, that is not to say that you cannot accept it, but you must certainly examine it with some care and be cautious of the pitfalls which are inevitably involved in hearsay evidence, that is repetition of out of court statements of people who, when they made them, were not giving that evidence on oath and were not before you, so you could make an assessment and were not in many cases subjected to cross-examination. Now, Mr Redfearn was a person, you remember, who had died before giving evidence, and I gave you some word of warning about that as well. So, simply bear that in mind when you do see that evidence. But that can be provided to you." (Transcript paragraph 634). 429 Counsel for the appellant made the point that as the jury had sought a copy of the transcript of Mr Redfearn's evidence, it had obviously assumed a significant importance in the minds of the jurors. Thus it was contended that in addition to the warnings which his Honour gave, he should have instructed the jury that there was no requirement on Spathis' counsel at the committal proceedings to cross-examine Crown witnesses either in detail or at all: see Birks at 689-690, 703. This direction was required, it was submitted, because there was no cross-examination of Mr Redfearn at the committal proceedings as to the reliability of his recollection regarding the number of persons to whom he was to meet that night. Thus it was incumbent on the trial judge to specifically direct the jury that as there was a live issue at trial as to the participation of each appellant in the commission of the offence, the evidence of Mr Redfearn on this vital issue was never tested, and given the state of his evidence, they should carefully scrutinise it before relying on it. 430 In R v Mendham & Foster (1993) 71 A Crim R 382, this Court (Gleeson CJ, Sheller JA and Grove J) cited the following passage from the judgment of the Privy Council in Henriques v The Queen [1991] 1WLR 242 at 247: - "When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffiths said in Scott v The Queen, at p1259: 'in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination.'" 431 It would have been a counsel of perfection to expect the trial judge in the instant case to have, of his own motion, alerted the jury to the point which the appellant now seeks to raise. 432 Moreover, a real question arises as to whether, if counsel at the trial had raised this point with the trial judge, his Honour would have given the direction sought. 433 For the purposes of this case the warnings which his Honour gave as to the care with which the jury should approach Mr Redfearn's evidence, were completely adequate. A submission was put by the appellant's counsel that the evidence of Mr Ludwig's representations to Mr Redfearn was wrongly admitted in breach of s 65 of the Evidence Act. However, this submission was not developed and accordingly not responded to by Crown counsel. 434 On the face of it the evidence does not appear to fall outside the terms of s 65 and in the absence of submissions this Court does not find it necessary to further explore the issue. The appellant requires leave under Rule 4 in relation to this ground. The ground has, in my view, no substance, and leave to rely upon the ground should be refused. 435 Counsel for the appellant handed to the Court a document headed "Appellant's Document on Matters Not Raised by Counsel for the Appellant". 436 Although it was not made clear during the course of argument, the Court presumes that the appellant sought to have these matters included in one or more of its grounds of appeal. Each of the 15 points asserts a failure by trial counsel to appropriately protect the interests of the appellant. Paragraphs 1, 2, 3, 4, 5 and 15 have already been considered under discrete grounds of appeal. 437 The remaining matters advert to alleged failures to adequately cross-examine in certain respects and to elicit evidence either in chief or in re-examination from the appellant. 438 There is no substance in these allegations so far as the material before this Court is concerned. 439 For the reasons set out above I propose that the appeal by Spathis against conviction be dismissed. No argument was addressed to this Court in support of his application for leave to appeal against sentence and, in the circumstances, leave should, in my view, be refused. 440 This was a long and complex trial conducted with skill and impeccable fairness by his Honour. It is therefore, not without hesitation, that I express certain comments about aspects of the written directions which were, in my respectful view, inconsistent with established authority. These misdirections were not the subject of grounds of appeal and were not capable in the circumstances of giving rise to a miscarriage of justice, being in most respects unduly favourable to the appellants. However, it is important that they be referred to, to avoid replication. 441 The written directions under the heading "Joint criminal enterprise" do not accurately make clear the distinction between the planned enterprise and the incidental crime. Paragraphs (4) and (5) inappropriately refer to the incidental crime as one being committed "instead of the agreed crime", whereas, as is generally the case, and certainly (on the Crown case) what was alleged here was that both the agreed crime and the incidental crime were committed. In his oral directions on this aspect of the case, his Honour did, however, clearly and accurately explain the relevant principles to the jury. 442 With regard to the Elements of felony murder and the sub-heading Co-Accused did the Stabbing, there is a misdirection in sub-paragraph (b) in that to establish felony murder in this context it was necessary for the Crown to prove beyond reasonable doubt that the fatal wound was inflicted during, or immediately after the commission by the accused and/or his co-accused of the offence of robbery while armed with an offensive weapon with wounding. Section 18 makes no provision for the fatal wound to be inflicted "immediately before" the commission of the foundational offence. In the circumstances of the present case, however, the insertion of the words "immediately before" in sub-paragraph (b) is of no real consequence as there was no suggestion in the evidence that the fatal stab wound was inflicted immediately before the armed robbery with wounding. 443 With reference to sub-paragraph 2(c) under the heading "Co-Accused did the Stabbing", it was not necessary for the Crown to prove that the accused who did not do the stabbing, being aware that his co-accused was armed with an offensive weapon, namely a knife, was aware that there was a substantial risk that his co-accused might during, or immediately after the commission of the robbery stab Klaus Peter Ludwig seriously injuring him, or killing him. It would be enough for the jury to be satisfied that the stabbing by the knife being carried by the co-accused during or immediately after the robbery of Mr Ludwig, was a contingency which the accused had in mind, whether or not the stabbing was intentional and whether or not in furtherance of the common unlawful purpose: see R v Sharah (1992) 30 NSWLR 292 at 297 and R v Johns [1978] 1 NSWLR 282 at 294-295. 444 With reference to paragraph 3 under the heading "Undecided as to who did the stabbing" sub-paragraph (d) of the direction states "That the person who stabbed the deceased did so with the intention of killing him or inflicting grievous bodily harm". It was sufficient for the Crown to have established in this regard, however, that the infliction of the fatal wound was a willed act, whether or not the stabbing was intentional and whether or not in furtherance of the common unlawful purpose. 445 As to sub-paragraph (f)(ii) under the same heading, it was sufficient that the Crown establish that there was the possibility, amounting to a substantial risk, that in the course of the robbery, the co-accused may stab the deceased (irrespective of whether the stabbing was intentional or not or in furtherance of the common unlawful purpose or not) and yet the one who did not do the stabbing continued to participate in the enterprise. 446 SMART AJ: For the reasons given by Heydon JA I agree that the appeal by Michael Patsalis against his conviction should be dismissed and that his application for leave to appeal against sentence should be refused. 447 For the reasons given by Carruthers AJ I agree that the appeal by Alexios Spathis against his conviction should be dismissed and that his application for leave to appeal against sentence should be refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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