New South Wales Court of Criminal Appeal Regina v Anthony John Hore Regina v Stanley James Fyffe [2005] NSWCCA 3 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 2 March 2004; 3 March 2004 JUDGMENT DATE: 9 March 2005 JUDGMENT OF: Tobias JA at 1; James J at 2; Smart AJ at 3 DECISION: In each case appeal against conviction dismissed; leave to appeal against sentence granted; appeal against sentence dismissed . CATCHWORDS: Prison murder - Evidence sufficient to support verdict - detailed factual analysis - Joint enterprise directions adequate and supported by evidence - circumstantial evidence directions, identification directions, directions as to lies adequate - application of s 128 Evidence Act 1995 (self incrimination) - judge refuses to direct witnesses to answer questions but explains fully to jury why witnesses not answering questions - directions favourable to accused - extensive warnings given as to the unreliability of the evidence of prison informers and specifying the weaknesses in the evidence of each - summing-up contained adequate summaries of evidence and adequately exposed and covered issues and case of each accused. - Life sentences imposed for savage and callous murder. Evidence Act 1995 s 128(1)-(7) LEGISLATION CITED: Crimes Act 1900, Crimes (Sentencing Procedure) Act 1999, ss 61 and 21 Ahern v The Queen (1988) 165 CLR 87. Edwards v The Queen (1993) 178 CLR 193 at 209-211 King v The Queen (1986) 161 CLR 423 at 437 M v The Queen (1994) 181 CLR 487 at 493-494 MFA v The Queen (2002) 213 CLR 606 at 614-615 & 622-623. Osland v The Queen (1998) 197 CLR 361 at [72] R v Clough (1992) 28 NSWLR 396. CASES CITED: R v Harris 50 NSWLR 409 at [60] (2001); 121 A Crim R 342 R v Mai (1992) 26 NSWLR at 375 R v Masters (1992) 26 NSWLR at 465-6 R v Mohan [1967] 2 AC 187 R v Phan (2001) 123 A Crim R 30 at [65] Pollitt v The Queen (1993) 174 CLR 558 Shepherd v The Queen (1990) 170 CLR 573 at 579-580 Tripodi v The Queen (1960-1961) 104 CLR 1 PARTIES: Regina v Anthony John Hore; Regina v Stanley James Fyffe FILE NUMBER(S): CCA 60068/03; 60490/03 P Power SC (Crown) C Papayanni (Hore) COUNSEL: M Ramage QC (Fyffe) S Kavanagh (Crown) C Jeffreys (Hore) SOLICITORS: Voros Lawyers [Fyffe] LOWER COURT JURISDICTION: Supreme Court 70059/01 (Hore) LOWER COURT FILE NUMBER(S): 70060/01 (Fyffe) LOWER COURT JUDICIAL OFFICER: Barr J IN THE COURT OF CRIMINAL APPEAL 60068/03 60490/03 TOBIAS JA JAMES J SMART AJ Wednesday, 9 March 2005 Regina v Anthony John Hore Regina v Stanley James Fyffe ________________________ Judgment 1. TOBIAS JA: I agree with Smart AJ 2. JAMES J: I also agree with Smart AJ 3. SMART AJ: Hore and Fyffe were jointly charged with the murder of Steven Moore at Silverwater Gaol on 19 March 2000. The jury found both guilty of murder. Both were sentenced to life imprisonment. Both appeal against conviction and both seek leave to appeal against sentence. 4. On Sunday, 19 March 2000 the deceased was an inmate at Silverwater Gaol. He was visited by his mother and some time after 2pm he returned to B Block where he was housed. About 2.30pm – 2.40pm prison officers found his body lying in a pool of blood at the back of B Block in the gym area. Near his body were a sandstone rock and half a brick. The rock, brick and nearby walls appeared to be bloodstained. The deceased suffered extensive fracturing to the base of his skull, fracturing of his cheekbone and jaw and abrasions and bruises to the neck and lower back. He died as a result of his head injuries, caused by the rock or brick or both striking him. 5. Hore challenged his conviction on numerous grounds, including erroneous or inadequate rulings and directions, incorrect admission of evidence and that the verdict was unreasonable or could not be supported having regard to the evidence. 6. Fyffe also challenged his conviction on many grounds including wrongful admission of evidence, erroneous rulings and directions and that the verdict was unsafe (that is, unreasonable or could not be supported having regard to the evidence). Some grounds of appeal were common to both appeals. 7. The Crown case was that Hore, Fyffe and a third inmate John Hart, were seen by other inmates in the area of B Block very close to the time the deceased was killed. Two of them (Hore and Fyffe) walked around the other or rear side of B Block while the other one (Hart) went into B Block, emerged with the deceased about two or three minutes later and walked around towards the back of B Block. The two groups respectively walked around the opposite ends of B Block and to the back of that Block. Hore, Fyffe and Hart were next seen a few minutes later walking together in a friendly fashion from the area of B Block. Shortly afterwards the deceased was seen by an inmate lying in a pool of blood at the back of B Block in what is termed the gym area. 8. The gym area at the back of B Block consists of a large partially roofed yard with a punching bag; men skip and exercise there. The yard is substantially V-shaped being bounded by two wings of B Block; they form what is described as the southern exterior wall of B Block. The opposite side of the yard is bounded by the tennis courts. At the apex of the V there is an awning about 12 feet above the ground and extending out for some distance from the apex and along the walls. The deceased was found at the apex of the V, that is, in the corner where the two wings meet and under the awning. The awning restricts the view from the cells. 9. One inmate, Matthew Chatto, was in his cell (Cell 57) in B Block when he heard the sound of thuds coming from the gym area. On looking out of his window he saw Hore and Fyffe walking from under the awning in the gym area. The awning was to his right as he looked out his window. The area under the awning was concreted. There was a large concrete drain and a further area beyond the drain which was concreted. There were areas of blood splatter on the concrete area beyond the drain and on the concrete close to one of the walls. There were bloodstains in some eight areas on the walls in the corner where the two wings of the building met. Evidence from Inmates 10. Matthew Chatto was watching motor sports on Channel 10 on the TV in his cell around 2 pm when he heard something that he described as "totally different … it was just like a thud sound and some sort of a weird sound I really couldn't make out." He heard three or possibly four of these noises. The repetition of the noises caught his attention. He looked out the widow of his cell and saw two men, an arm's length apart, walking in single file from under the awning outside from his right to his left. Chatto's cell (No 57) was on the upper floor of the building and looked down on the gym area but his view under the awning was restricted. Chatto recognised the two men. One had a nickname "Horse" (Hore). He came from Cell 72 and had no cellmates. The second man came from Cell 70 and his cellmate was "Old Bill" (Charlton). The second man was Fyffe. Hore was "the shorter of the two with a stocky build", his hair was "no longer than shoulder length" and "a bit wavy" and "a touch of receding at the front". The second man was taller than Hore; he had a medium to thin build and a "goatee or moustache, or something like that". He demonstrated in court "a moustache curving around the sides of the mouth and onto the chin". The second man had tattoos. Chatto was "one hundred per cent sure" of the men's identities. There was no one else around when he saw these two men walk from the area under the awning, Hore and the other man were "a matter of steps", "a couple of feet, half a metre to a metre", from the awning when he first saw them. Shortly after he saw Hore and Fyffe walk around from the area under the awning, Chatto saw three other men look around the corner of the building. 11. When Chatto went outside to look at the area under the awning he found that the man lying there was deceased and that the man was Moore. Several days later Chatto saw Hore removed, some time later Fyffe and also Hart, who had been occupying Cell 71. 12. Chatto stated that he did not receive any discount in his sentence for assisting the authorities and that he had been released from custody "a long time ago" at the time of the trial in May 2002. William Charlton was Fyffe's cellmate. Hart was in the cell next to Charlton and Horse was two cells away. Charlton said that on the evening before the deceased's death Hore (Horse) came into their cell to talk to Fyffe. Charlton said, "I'd be asked to leave and I would leave, or they would go into Horse's room or one of the other rooms." By "they" he meant Fyffe, Hore and Hart. Shortly after the discovery of the deceased's body, Charlton saw Hore taking a shower. Hore took a shower in that part of the shower room where he could be seen from outside the shower block having a shower. 13. Charlton said that he and Fyffe "got along very well". Charlton said that he was a friend of the deceased who would occasionally visit him in his cell to talk. On one occasion, soon after Fyffe became Charlton's cellmate, the deceased visited. Fyffe told Charlton afterwards that he did not want the deceased in their cell "because he was a dog". 14. After the discovery of the deceased's body and when Charlton was going into his cell, Fyffe joined him about the same time. Fyffe remarked, "If anybody asks you just tell them I was asleep." The Crown case was that this was a lie by the appellant evidencing a consciousness of guilt. It was an attempt by Fyffe to create a false alibi. 15. Charlton said that on the following morning, 20 March 2000 he and Fyffe were in their cell when Fyffe said, "He got his right whack." 16. Charlton stated that after Hore had been removed by the prison authorities he had a conversation with William Bond near the doorway to his cell. Fyffe was sitting on his bed about two to three metres away. The conversation between Charlton and Bond lasted for about five minutes. Bond left. Fyffe told Charlton that Bond "was a dog and he knows too much". Charlton said, "[H]e actually said something to the effect, 'You ought to knock him', but I took that in jest." Charlton observed that Hart talked to Fyffe and took Fyffe into his (Hart's) cell. This was on 20 March 2000. 17. Bond had been the deceased's cellmate for about two weeks prior to the deceased's death. Bond's ex-cellmate was John Hart. After lunch on 19 March 2000 Bond was on a small rise near the visitors' area known in the prison as "Heartbreak Hill" when he saw Hart and spoke with him. Bond said that a man came from behind his right hand side and said to Hart, "Let's go" and they passed a medium-sized object that may have been a rock or brick between their hands until they went out of sight behind the back of B Block. The object was "probably … a little bigger than an AFL football and had a pyramid or triangular shape". He estimated that this occurred at about 1.30pm to 1.40pm. The man who came up from behind said, "Come on, let's go and pass this like a football." 18. Initially during his evidence in chief Bond claimed that he was unsure of the identity of the man who came up from behind. The trial judge granted the Crown leave to cross-examine Bond and his evidence then was that the man "could have been Mr Fyffe, it could not have been. I'm not sure whether it could have been or not". His committal evidence, in which he identified the man as Fyffe, was read to him; for example, he gave evidence at the committal that "Stan Fyffe come (sic) up from behind." Bond maintained at the trial, "I was only assuming it might have been Stanley Fyffe." Bond had made a statement on 3 April 2000 to the same effect as the evidence he gave at the committal proceedings. 19. Bond claimed that his memory had been impaired by his drug use both before and after he made his statement. He claimed that his memory was not better on 3 April 2000 than in May 2002 because he was "on a lot more drugs back then than what I am to-day." He added that he would not say he was affected by drugs on the day he made his statement but he had been using drugs the night before. He said that he could not remember if he was affected by drugs on the day he spoke to the police. At the trial he claimed, "I am affected by drugs to-day. I had my medication last night." 20. Bond agreed that in his signed statement to the police he was recorded as saying: "Stan said to me, 'Don't say anything about the rock cause I don't need the dramas'." Bond claimed, "I don't recall what he said." He explained that he could not remember because there was so much going on in the gaol at the time – they were all locked down On the diagram he had prepared for the police he showed "A Block", "B Block" and "Gardens" and in the area of "gardens" he had written "Stan gets rock from here." He had also written "rock" under a marking on the diagram within the "Gardens". Bond agreed that it was his writing on the diagram. Bond said, "I could have been referring to Stanley Fyffe, but I don't recall because I didn't see the person's face. I was just assuming it might have been Stanley Fyffe because he hung around John Hart a lot." The sketch was admitted in evidence against both appellants. The judge explained to the jury that what Bond said Fyffe said about the events of 19 March 2000 on Heartbreak Hill or in that general area, was only tendered in the case of Fyffe and was not tendered against Hore. However, what Bond said about what happened was tendered in the case of both accused and that included any conclusions drawn from the sketch. The judge also told the jury that what Bond said Fyffe said on 20 March 2000 was tendered by the Crown only in the case of Fyffe. 21. The judge took the view that the diagram was relevant to the case against both accused as a description of what the two persons did. 22. AH was sitting outside B Block on the afternoon of 19 March 2000 when he saw three inmates together. Two walked around the other or rear side of B Block, while the first went into B Block and emerged two or three minutes later with the deceased, talking in a friendly manner with him and walking very close to him. He and the deceased walked around towards the back of B Block. AH saw the three men (that is, without the deceased) as they returned from the back of B Block. They were walking, talking, laughing and patting each other in a friendly way. AH went around the back of B Block and saw blood all over the floor and the person lying there. 23. AH described the man he saw walking with the deceased out of B Block as having wavy hair and broken teeth. Of the other two, one was a very big man who had messy hair and a few broken teeth and there was a big difference in height between him and the second man. 24. Senior Correctional Officer Clarke found the deceased's body at about 2.40pm on 19 March 2000. 25. Senior Cons Anastasiou from the Forensic Services Group attended at Silverwater Gaol at about 5.10pm on 19 March 2000. He saw the deceased lying face up on the ground adjacent to B Block in the gym area. Thirty-one photographs of the area and two sketch plans with accurate measurements were prepared and tendered. The photographs revealed the condition of the deceased's body, the bloodstains on the walls near the deceased, the sandstone rock and the brick with hairs adhering to it. The sketches show that the brick was beside the deceased's shoulder and the sandstone rock was a short distance (about half a metre) from his body. It illustrates the window to Cell 57 which is about 8 – 9 metres from the corner where the two walls meet and the deceased's body was found. The awning ends at the lower level a little before the window to Cell 57 on the upper level of Block B. After the murder was committed it would have taken no more than twenty seconds to walk from the murder scene out from under the awning into the view of a person watching from the window of Cell 57. Sgt Maurer also spoke of the sandstone rock, the brick and the two walls in the vicinity of the body appearing to be bloodstained. 26. Inspector Jenkins gave the following description of the deceased, Fyffe, Hore and Hart during investigations. The deceased was a relatively short man, roughly 5 feet 6 inches. Hart was about 5 feet 7 inches with straggly hair, unkempt and about shoulder length. (Jenkins thought Hore looked a bit smaller at his trial in May 2002 compared with 2000). Hore was about 6 feet 2 inches. His hair was not well groomed when Jenkins saw him. Fyffe was much slighter but about 6 feet 1 inch tall. Fyffe's teeth were broken and "all over the place". Medical and Scientific Evidence 27. A post mortem examination of the deceased performed by Dr Hulewicz on 21 March 2000 identified 29 injuries or wounds including defensive type wounds and abrasions to his hands. The head injuries were caused by blunt force trauma. Dr Hulewicz thought the head injuries were consistent with the sandstone rock coming into contact with the deceased's head. Dr Hulewicz said: "[I]t is entirely possible to lift up the rock and strike the side of the head once, a second time, a third time, a fourth time, (indicated) producing the injuries that were found … or equally possible that the rock was actually forcibly dropped on the side of the head, (indicated). They are the two possible scenarios". There was a triangular-shaped injury to the forehead and this was consistent with the brick being used. Death was almost immediate or occurred shortly after the infliction of the head injuries. The head injuries were consistent with the deceased being struck to the head while lying on the ground. 28. Sgt Jones, a crime scene officer, said that the bloodstain patterns suggested a low level attack on the deceased, that is, while he was on the ground. 29. Forensic biologist, Robert Goetz, found human blood on the rock and the brick. Analysis of samples on the rock and brick showed DNA. The deceased's DNA profile could be expected to occur in one in 10 billion people in the general population. Mr Goetz excluded Fyffe, Hore and Hart as the source of the DNA on the rock and brick. Lies evidencing consciousness of guilt by Fyffe 30. Lies attributable to Fyffe include: (a) as mentioned he told Charlton, after discovery of the deceased's body, that if anybody asked Charlton, he was to say that Fyffe was asleep in his cell; (b) Fyffe told the investigating police that he was asleep between 1.30 and 3pm on 19 March;2000; (c) he told the police that he did not know the deceased.. Lies evidencing consciousness of guilt by Hore 31. Lies attributable to Hore include: (a) he told police on 20 march 2000 that at the relevant time he was "in my cell", maybe John Hart was with me; (b) he told police that he did not have any boots in his cell. The Boots 32. A pair of safety boots was issued to Hore on 3 March 2000. Work boots at the gaol could be re-issued to different inmates. It was impossible to tell whether the work boots issued to the appellant were new or second-hand. The prison records did not indicate the brand of boots issued to Hore. There were probably two other brands of boots apart from "Howler" boots issued at the gaol. Over 100 inmates wore safety boots in order to attend the four workplaces in the gaol. Another estimate by another officer was that more than 200 inmates wore boots for work. Hore was recorded as working in the engineering section at the Silverwater Gaol from 2 to 8 March 2000. 33. On 20 March 2000 Hore was removed from Cell 72, about 7pm or 8pm by Correctional Officers wearing blue overalls from the Security Emergency Response Team (SERT). For about 15 minutes a search was conducted, after which the cell was locked. Senior Correctional Officer Damaso assisted in the search of the cells in B Block on the afternoon of 21 March 2000. He removed one pair of black boots from outside Cell 70. He removed one pair of black boots from Cell 72 from underneath a shelf on the left-hand side of the cell. The boots from Cell 72 given to Snr Cons Anastasiou were black Howler, size 12 boots. He noticed stains on them and conducted a positive presumptive test for blood on the boots. He described the red staining on the right boot (shown in photograph 49) as "basically circles, almost like an impact mark on the boot." 34. Mr Goetz said that a preliminary screening was positive for the presence of blood on one of the boots identified as taken from Hore's cell. Analysis of samples from the staining on the right boot showed DNA was present and consistent with the deceased's DNA. The deceased's DNA profile as earlier mentioned, could be expected to occur in one in 10 billion people in the general population. Mr Goetz excluded Hore, Fyffe and Hart as the sources of the DNA on the rock, brick and staining on the right boot. 35. On testing the rear tags on the boots (used to assist in pulling the boot on) Mr Goetz found DNA on the left boot rear tag that came from at least three individuals. It was impossible to exclude the deceased, Hore, Fyffe and Hart, plus at least one other person as the source of that DNA. He also found DNA on the right boot tag that came from at least two individuals. The major DNA type found on that mixture was possessed by Hore so he could not be excluded as the source. 36. Forensic scientist Katherine Lee also conducted DNA testing (in which she had experience) and found that the DNA on the rock and on the inner toe of the right boot could have come from the deceased. She took a swab from the interior of the left boot and found a DNA profile that could have come from at least two individuals, the main component of the DNA having the same profile as that of Hore. She tested the front tab of the right boot and found that there were at least two contributors of the DNA present there, one of whom could have been Hore. 37. Fyffe and Hart each had size 8 to 8½ feet while Hore had size 10½ to 11. As stated, the boots from Cell 72 were size 12. The forensic podiatrist confirmed that there was nothing inside those boots to enable her to say whether Hore wore the boots and the only thing that suggested to her that Hore could have worn them was their size. 38. During the course of the trial Sgt Maurer made a closer examination of the video tape of the crime scene he had made from 7pm onwards on 19 March 2000. Sgt Maurer identified a two-minute portion of the tape which he said showed footprints in the area of the crime scene. 39. Pausing here, it seems clear enough that one of the boots found in Cell 72 had bloodstains on it containing a DNA profile matching that of the deceased and that a matching profile was likely to be found in one in 10 billion people. The DNA profile on the rock and brick matched that of the deceased. The evidence points to Hore being the wearer of that boot but it is not watertight. While the boot was found in Hore's cell it could have been put there by others, or put there by Hore after others had worn it. Security was not tight and others could have gained access to Hore's cell. While his DNA was on the boots this was to be expected. The DNA of others was also found on the boots. What has some force is the combination of the deceased's DNA on the right boot, Hore and Fyffe being excluded as the sources of the DNA on the rock, brick and staining on the right boot, Hore's DNA being found on other places on the boots and the boots being of a size to fit Hore approximately. View 40. The jury had a view of Cell 57 and the gym area at the back of B Block. Hore's Case 41. Hore did not give evidence 42. He relied in part on concessions obtained in cross-examination. No fingerprint testing was attempted on the sandstone or brick. Senior Correctional Officer Clarke was unsure whether he was standing or sitting when he took photographs from Cell 57 (Chatto). Chatto conceded in cross-examination by Fyffe's counsel that the noises he heard may have come from the shower block. Chatto agreed that he did not observe anyone specifically walking from underneath the awning. The first observation made of Hore and Fyffe was when they were underneath his window. He observed them from above from the front down at an angle. He said the observation lasted as long as it took the men to walk past, that is, a couple of seconds. 43. During the course of his cross-examination Chatto declined to answer any questions relating to the presence and activities of Stephen McIvor after 2pm on the ground that the answers might tend to incriminate him. The reason for this was that Chatto and McIvor were friends and their plan was as reflected in their statements to the police, to put McIvor in a position where he could appear to be assisting the Authorities and obtain a reduction in the period he had to serve. McIvor was not in fact in the cell at the relevant time nor was he able to render useful assistance. The jury were not told the reason. The jury understood that Chatto was refusing to answer many questions because the answers might tend to incriminate him. 44. Counsel for Fyffe and counsel for Hore made a substantial attack on Chatto's credibility, namely that he had not seen two men from his cell window and that he had manufactured his account in an effort to secure an advantage for himself in the form of a reduced period to be spent in gaol. 45. In cross-examination Chatto agreed that he only got a glance at the two men who were moving quickly. 46. Steven McIvor agreed in cross-examination that he shared a cell with Chatto but refused to answer any questions at all about what he did or did not do with Chatto on 19 March 2000 on the ground that he may incriminate himself. 47. None of the cells in B Block were locked from the time the deceased was found on the afternoon of 19 March 2000 until the time the SERT officers arrived the following night about 7 or 8pm. During that time any prisoner could enter a cell in B Block. 48. Mr Goetz agreed in cross examination that he did not conduct any test on the right boot to confirm conclusively that it was blood. There was insufficient material to do more than a presumptive test for blood. Thus he could not say conclusively whether the stain on the right boot was blood. 49. As to the rear tags of the boots Mr Goetz agreed that the DNA could have been deposited by someone picking up the boot and carrying it around. He did not conduct a conclusive or presumptive test for the presence of blood on any of the boot tags. In the DNA test of the left boot rear tag, there was a drop-out of one of the alleles or indicators, which meant that there was a possibility that Hore was not the source of the DNA. In that particular test there was considerably less material to test than the amount recommended by the "Profiler Plus" DNA test manufacturer. 50. Hore's work record covered a weekend and supported his estimate of working for about four days. 51. Dr Brian McDonald, a DNA expert, was called by Hore. He was critical of the findings of Mr Goetz on the source of the DNA on the tags. Dr McDonald agreed that there was a mixture of DNA on the tags and that there were low-level amounts of the DNA present. This combined with the drop-out of the allele in one of the tests, meant that the interpretation of the DNA results was complex, particularly those as to the left boot rear tag which he concluded were "impossible" to interpret. DNA can come from blood, saliva, semen, dandruff and skin scrapings. 52. In his closing address, counsel for Hore relied on the following: a) the Crown case was a circumstantial one as there was no eye witness to the deceased's killing; b) it was not known who inflicted the fatal blows; c) the danger of identification evidence – Chatto had but a fleeting glimpse of Hore. Chatto admitted that the men he saw from his window were moving quickly and that he only saw them for a couple of seconds; d) no conclusive test was performed to show that the staining on the boot was blood; e) the cells in B Block could be accessed by the prisoners in B Block after the deceased's death; f) the photographs taken by Clarke from Cell 57 of the gym area might have been taken by him standing up or sitting down; g) the evidence of Chatto must be considered in the light of his refusal and that of McIvor to answer questions about what they did together and pointed clearly to concoction on their part. Chatto had concocted his evidence implicating Hore for personal advantage, for example, early release; h) Hore selected a shower in easy view from the doorway of the shower block on 19 March 2000; i) Hore co-operated with the police, for example by giving a DNA sample and allowing his feet to be measured and tested; j) Hore's estimate of working for "about four days" was supported by the prison records and pointed to his honesty; k) there was no evidence about what footwear Hore was wearing on 19 March 2000; thongs were found in his cell as well. Fyffe's Case 53. Fyffe did not give evidence 54. His counsel mounted a major attack on the credibility of Chatto and his evidence, contending, inter alia, that Chatto in order to procure his early release concocted a story that he had seen Fyffe walking under his window in the circumstances he had described and also to shift any suspicion away from himself. 55. Weight should not be put on what Fyffe said to Charlton. Charlton agreed under cross-examination that Fyffe "quite often mouthed off about other prisoners and what was happening in the gaol." He also told Charlton on occasions that he did not like other prisoners, particularly younger prisoners, coming into their cell. It was contended that Charlton could not be certain as to the details of conversations he had had with others about the death of the deceased. 56. Fyffe relied on Bond's agreement under cross examination that if he were to say that he had seen Fyffe with a sandstone rock on the day of the deceased's death, he would be committing perjury. Fyffe relied strongly on Bond being an unsatisfactory witness. For example, in cross-examination Bond said: "Q. And the fact is you didn't have any conversation in which Mr Fyffe asked you not to say anything about what you'd seen that day, did you? A. I don't recall, sir. I don't remember anyway. Q And you certainly didn't have any conversation with Mr Fyffe that involved you referring to your having seen him with a rock or anything like that? A. I still don't remember." 57. Fyffe relied on the evidence of Inspector Jenkins that when he attended at Silverwater Prison on 19 March 2000 he saw a number of sandstone rocks in different locations around the gaol. 58. Fyffe contended that his comments to the investigating officer that he did not know the deceased could not be taken as a lie as people in the wing of a prison come and go. 59. Fyffe maintained that he was asleep in his cell at the time of the murder. 60. Fyffe stressed that the prison witnesses in the Crown case were unreliable. AH did not identify Fyffe and Chatto saw Fyffe and Hore removed by prison officers after the murder, so he effectively only identified suspects who had been identified already by the Authorities. Joint Enterprise 61. In his opening address, the prosecutor told the jury that the Crown alleged that the two accused were acting jointly in the murder. "Either both accused participated in the physical attack upon the deceased with the purpose of hitting the deceased with an object such as the rock with the purpose of killing him or doing him very serious injury and that one or both of the accused inflicted fatal blows on the deceased. Alternatively, the Crown case is on the basis that one of the accused inflicted the fatal blows on the deceased intending to do very serious injury or killing and that the other accused was present and assisting and encouraging what occurred." Grounds of Appeal 62. Many of the appeal grounds will be taken in groups. Some of those taken by Hore and some taken by Fyffe cover substantially the same areas. Hore Grounds Of Appeal: 1,1A, 2(a) and (b) and 3 Fyffe Grounds of Appeal 2, 3 and 14 Hore Ground 1: His Honour erred in law in directing and/or failing to direct the jury adequately or properly in respect of joint enterprise as follows: (a) in that there was no evidence of pre-concert; (b) in that the acts or declarations of others could not be taken into consideration in respect of the agreement or understanding; (c) in that the acts of others could only be considered in respect of the commission of the crime (if such had been admitted); (d) in that presence of Hore could not be proved beyond reasonable doubt. Hore Ground 1A: (a) His Honour erred in law in failing to find a prima facie case in respect of Hore to consider the admissibility of the acts of others in Hore's case. (b) The acts and declarations of others were not admissible in Hore's case in that there was no prima facie case of murder in respect of Hore. Hore Ground 2: The facts do not support the offence in that: (a) there was no evidence of pre-concert; (b) the evidence did not support the agreement as alleged; (c) … Hore Ground 3 His Honour erred in law in failing adequately to set out separately for the jury in respect of Hore the facts and circumstances constituting the circumstantial case against Hore in respect of: (a) pre-concert; (b) the agreement or understanding amounting to an agreement; (c) presence at the scene; Fyffe Ground 2: The trial judge erred in respect to common or joint criminal enterprise. Fyffe Ground 3: The trial judge erred in admitting evidence relevant only to the co-accused [Hore] against the appellant [Fyffe]. Fyffe Ground 4: The trial judge erred in his further directions to the jury on accessorial liability. 63. Both Hore and Fyffe submitted that there was no evidence of a joint enterprise to kill the deceased between the three men (Hore, Fyffe and Hart), that is, there was no evidence against Hore of his participation in the joint enterprise alleged and no evidence against Fyffe of his participation in such an enterprise. 64. However, I think that there was evidence of a circumstantial nature against both Hore and Fyffe of each's participation in the joint enterprise alleged It included: (a) their meeting privately on the night of 18 March 2000; (b) their meeting shortly prior to the commission of the killing; (c) Hore and Fyffe going around the back of B Block together almost immediately prior to the killing; (d) Hart fetching the deceased from B Block and taking him around behind B Block immediately prior to the killing; (e) the making of dull thuds which could have come from the area behind B Block; (f) the emergence, immediately afterwards, from under the awning of Hore and Fyffe walking in single file immediately after each other; (g) Hore and Fyffe being identified by Chatto (h) about two minutes after hearing the first sounds, Chatto investigated by walking behind B Block and seeing the body of the deceased and the rock and the brick nearby; these were apparently blood-stained; (i) a few minutes after four men (Hore, Fyffe, Hart and the deceased) had gone behind B Block, three of them, namely Hore Fyffe and Hart returned to the area in front of B Block walking, talking and laughing together and patting each other. The deceased lay dead in the area under the awning. 65. As against Fyffe alone the evidence includes: (i) Fyffe stating he did not want the deceased in his cell as the deceased was a dog (Charlton); (ii) Fyffe stating "he got his right whack"; (iii) Fyffe telling Charlton to say, "If anybody asks just tell them I was asleep"; (iv) Hart and Fyffe seen walking together from B Block in the afternoon; (v) two men passing medium sized object "back and forth" between them as they moved behind B Block; Fyffe was carrying a rock bigger than the size of a football; (vi) Bond being told by Fyffe, "Don't say anything about the rock I don't need dramas". 66. From all this material it was apparent that Hore, Fyffe and Hart enjoyed a close relationship and that there was a joint enterprise to kill the deceased. No other rational inference was open. The critical events took place within a very short time frame. It is important to look at what was done overall. The end which the deceased met so speedily after he was taken behind B Block was eloquent of the purpose and intent of those who gathered there. The conduct of the three men on their return to the front of B Block after the death of the deceased spoke of a common enterprise. 67. Hore submitted that the trial judge's directions to the jury regarding joint enterprise "could be misleading and did not differentiate between principal in the first degree and second degree". This submission does not sufficiently appreciate the way in which the Crown case was put in the alternative. In King v The Queen (1986) 161 CLR 423 at 437 Dawson J stated that in "cases in which the degree of participation of the offenders is not known… it is appropriate to charge them all as principals…" 68. In Osland v The Queen (1998) 197 CLR 361 at [72] McHugh J pointed to the case: "…where a person was not only present at the scene with the person who committed the acts alleged to constitute the crime but was there by reason of a pre-concert or agreement with that person to commit the crime. In that category the liability of each person present as the result of the pre-concert is not derivative but primary. He or she is a principal in the first degree. In that category each of the persons acting in concert is equally responsible for the acts of the other or others." 69. Thus, where the legal responsibility for the acts of another arises from a joint criminal enterprise, the secondary party is liable as a principal in the first degree for the crime committed by the perpetrator. 70. One further development of principle should be noted. In R v Phan (2001) 123 A Crim R 30 at [65] Wood CJ at CL said: "Rather it was a case, if anything, of common enterprise in which the parties to it were each active participants and hence liable as principals in the first degree, or one where the Crown being unable to prove which of several persons, present at the scene of a crime, committed the particular act giving rise to the offence, nevertheless was able to establish that each was assisting the other, in which event it was properly left as one of principal and accessory: Mohan (1967) 2 AC 187 and Clough (1992) 28 NSWLR 396." 71. Mohan has been frequently applied and, importantly, decides that a prosecution should not fail where it can be established that each of the accused was assisting in the act causing death but the prosecution cannot prove exactly what each accused did and who administered the fatal blows. 72. In summing up (SU16) the judge reminded the jury that the trial had been conducted upon the understanding that whoever attacked the deceased and inflicted those injuries intended to kill him. He continued, "The question over which this trial has been fought is whether in each case [Fyffe and Hore] the accused killed the deceased or made himself responsible for the killing." 73. The judge at SU 16-18 explained the concept of a "joint criminal enterprise" and what had to be proved by the Crown to make each of Hore and Fyffe criminally responsible. Amongst other things the judge told the jury (at SU 17-18) : "A person participates in a joint criminal enterprise either by committing the crime charged itself, or knowing that the crime is being or is about to be committed by intentionally assisting or encouraging another party to the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and the readiness to give aid, if required, is sufficient to amount to an encouragement to the other participants in the joint criminal enterprise to commit the crime." 74. At SU 18 the judge emphasised that mere presence at the scene of a crime is never enough and that there must be intentional assistance or encouragement or a standing by ready to assist if called upon. 75. The judge's directions were correct and in accordance with King, Mohan, Clough and Phan. They were easy to understand and apply. The judge then applied the law to the facts of the case at SU 21: "The Crown case is that there was an agreement between the two accused and Mr Hart to attack the deceased and kill him or do him really serious injury. The Crown says that there was an arrangement between the three of them to take Mr Moore to the back of B Block and deal with him there. In accordance with that arrangement one of them brought him out of B Block and took him to the back of the Block. The other two went together to the back of the Block, carrying the piece of sandstone that was used to kill him. The Crown cannot say whether they took the half brick there or picked it up there. The Crown cannot say when the accused and Hart came to this arrangement, but says that they must have done so at the latest by the time the two pairs of men walked to the back of B Block. The Crown must prove beyond reasonable doubt that there was such a joint criminal enterprise, at the latest, by the time the two pairs of men walked around B Block towards the place where Mr Moore was killed." 76. A little later that day the judge corrected an error in the first paragraph of this passage. He said: "I said to you that it was the Crown case that the piece of sandstone was being carried at that stage. It is not the Crown case and there is no evidence to that effect. I am sorry for my mistake. The evidence about a piece of sandstone being carried is on the occasion described by Mr Bond. It is not suggested by the Crown that this is immediately connected with the killing of Mr Moore. What I mean by that is that was not part of the action when he was taken round the back of B Block and killed. It was an event which, if you accept that it happened, took place at an earlier time and this is the only evidence of the carrying of a sandstone block. The next evidence you have of a sandstone block is when one was found near the body of Mr Moore, so I am sorry for that mistake and I am grateful to counsel for pointing it out to me". 77. The judge directed at SU 22 that in the cases of Hore and Fyffe the Crown must prove beyond reasonable doubt that: i) the accused whose case was being considered was a party to a joint criminal enterprise to attack the deceased and kill him or do him really serious injury; and ii) acting in accordance with that enterprise that accused was present when the deceased was attacked, attacking him or assisting in the attack or encouraging the attacker or attackers or being ready to assist. 78. That direction was in substance repeated at SU 178. The judge added at SU 23: "The Crown alleges that Mr Fyffe, Mr Hore and Mr Hart were all present in accordance with the arrangement that they had made and that they all took part in it, though it cannot say which part any of them played individually. It says that they must each have played some part, making themselves responsible in any of the ways I have summarised." 79. Hore submitted that the directions at SU 22 and 23 (and 178) evinced confusion. Hore contended that these directions made it clear that "the joint criminal enterprise relied upon was that of principal in the first degree in respect of him (Hore) and not that of principal in the second degree as it cannot be said who was 'attacking him or assisting in the attack or encouraging the attacker or attackers or being ready to assist' which would be necessary in the case of a principal in the second degree. Further support for this appears, again confused, in the direction on p178 of the SU that there 'must be the agreement and presence by the direction'." 80. This submission does not take into account the remarks of Dawson J in King that in cases in which the degree of participation of the offenders is not known it is appropriate to charge them all as principals; nor the observations of McHugh J in Osland nor the practice referred to in Mohan, Clough or Phan. In the circumstances which prevail in the present case, the principle that a principal in the second degree could only be found guilty of the crime of which the principal offender was found guilty is inapplicable. 81. In a case such as this the Crown is in substance saying, all the facts are peculiarly within the knowledge of the accused. We do not know whether the true analysis is one of acts committed pursuant to a joint enterprise or whether it is one of accessorial liability but it must be one or the other and in either case the accused is guilty of the offence charged. Of course, in the case of a joint enterprise the accused may actually carry out the offending acts or have entered into an agreement with his co-offender to carry them out. In such a case there is little point in undertaking a detailed analysis of whether the evidence proves beyond reasonable doubt that there was a joint enterprise in which the accused participated. Nor is there any point in undertaking a detailed analysis of whether the evidence establishes beyond a reasonable doubt a case of criminal accessorial liability on the part of the accused. The true question to be asked is whether, on the facts of which the jury is satisfied beyond reasonable doubt, what happened must have been either an instance of joint enterprise liability or accessorial liability. If on the facts proved it must have been one or the other the accused is guilty of the offence charged, namely, murder. The judge, in his directions was endeavouring to pose this as the true issue for the jury to decide. This does not mean that there was no point in considering whether the evidence was capable of supporting a verdict based on joint enterprise and accessorial liability. The acts leading to the attack on the deceased and those involved were clear as were those immediately after the attack resulting in the death of the deceased. What was unknown was who struck the fatal blows and who knocked the deceased to the ground. 82. In Mohan [1967] 2 AC 187 both the appellants were armed with cutlasses, attacked the deceased at the same time and struck him with the common intention that he should suffer grievous bodily harm. Each of the appellants was present aiding and abetting the other in the wounding of the deceased. Lord Pearson in delivering the advice of the Board said at 194: "That is the feature which distinguishes this case from cases in which one of the accused was not present or not participating in the attack or not using any dangerous weapon, but may be held liable as a conspirator or an accessory before the fact or by virtue of a common design if it can be shown that he was a party to a pre-arranged plan in pursuance of which the fatal blow was struck. In this case one of the appellants struck the fatal blow and the other of them was present aiding and abetting him. In such a case the prosecution do not have to prove that the accused were acting in a pursuance of a pre-arranged plan". 83. And at 195 "A person who is present aiding and abetting the commission of an offence is without any pre-arranged plan or plot guilty of the offence as a principal in the second degree." 84. Mohan establishes that an offender will be guilty of the offence charged as a principal where the evidence does not enable the court to decide whether he is the principal or an accessory before the fact. The offender had to be guilty on one basis or the other. That suffices. By parity of reasoning that applies where the evidence does not allow the court to say whether the offender acted pursuant to a common enterprise or in an accessorial capacity. 85. Hore also complained that the judge did not direct the jury that in determining in his case whether there was an agreement as alleged, only the acts or omissions of Hore could be taken into account. Before analysing what was required in the present case it is desirable to refer to Tripodi v The Queen (1961) 104 CLR 1 and Ahern v The Queen (1988) 165 CLR 87. In Tripodi at 6-7 the High Court (Dixon CJ, Fullagar J and Windeyer JJ) said: "But when a substantive crime, not a conspiracy, is charged… it is the ingredients of the substantive crime that must be proved, not combination for a common purpose. When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others, that is to say of course, unless some other ground for admitting the evidence exists in the given case." 86. In Ahern at 93 when dealing with conspiracy cases, the joint judgment stated that for the purpose of proving the agreement or combination to engage in a common enterprise (which is the nub of the offence) "evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided that such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependant upon some circumstance to take it outside the hearsay rule…" 87. At 99 the joint judgment pointed out that the question of the admission in evidence of the acts and declarations of others outside the presence of the accused does not arise in cases other than conspiracy to prove the combination except as evidence of separate acts from which a combination might be inferred. 88. At 99 the joint judgment continued: "Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove not the fact of participation in the combination, but the offence charged." 89. At 103 the joint judgment held that the trial judge alone should determine the sufficiency of the independent evidence. At 104 the joint judgment stated: "It will often be difficult, if not impossible, to segregate the evidence so as to enable a ruling to be given in advance. In most cases, evidence of the acts and declarations of alleged co-conspirators will be admissible in the form of separate acts to prove the fact of combination. In those circumstances the trial judge may postpone until all the evidence is in, his ruling whether the proof of the combination sufficiently implicates an individual accused to allow the acts and declarations of the others in his absence to be used against him as proof of participation." 90. It was for the judge to determine whether there was reasonable evidence of the pre-concert. As was pointed out in R v Mai (1992) 26 NSWLR at 375 and R v Masters (1992) 26 NSWLR at 465-6 it was not always necessary for the trial judge to rule formally upon the existence of "reasonable evidence". Often, as in this case, it is obvious that such evidence had been adduced. The judge made it clear in his summing up (SU 17) that in each case the Crown had to prove that each accused (Hore and Fyffe) took part in the joint criminal enterprise. See also at SU 26. 91. In the summing up the judge marshalled the evidence in such a way that it was apparent what evidence was admissible against both Hore and Fyffe, what evidence was admissible against Hore and what evidence was admissible against Fyffe. The judge reminded the jury that the evidence against each man had to be considered and addressed separately. 92. The summing up does not suffer from the defects suggested. 93. Hore submitted that it was not established that the pre-concert agreement was to kill or inflict really serious injury. While it was not in issue that the person who killed the deceased intended to do so, this did not mean that the others involved agreed to do so and that this was part of the plan. Hore further submitted that even if regard was had to the whole of the evidence the plan could have been, as far as the others were concerned, to lure the deceased to the back of B Block for the purpose of: (i) giving him a severe warning as to being a "dog" in the future; (ii) threatening him of the consequences of such conduct; (iii) assaulting him to add strength to the warning and/or threat; (iv) doing him really serious injury or killing him. 94. Hore submitted that so far as all but the killer was concerned there was no evidence available to exclude alternatives (i), (ii) and (iii) and accordingly (iv) was not the only inference which could be drawn. Hore submitted that for this reason also there was no evidence of the pre-concert agreement on his part. 95. These submissions are incorrect. The deceased was taken around the back of B Block by one of the group of three in circumstances of apparent friendliness and the two others were there waiting for him. Within a very short time the deceased had been killed under the cover of an awning which made it difficult to see what was happening and the three men came back to the front of B Block laughing, patting each other and in a spirit of friendliness. There was no need to take the deceased around the back to warn him or threaten him. If only a modest assault had been intended the deceased could have been so assaulted in B Block out of the sight of the warders. There was an abundance of material from which it could be inferred by the jury beyond reasonable doubt that the pre-concert arrangement was to kill the deceased. 96. Hore submitted that it was unclear what conduct of his the Crown could rely upon as showing that he was assisting and encouraging as distinct from merely being present. The Crown could not say what part each of Hore, Fyffe and Hart played. It was submitted that the jury ought to have had a reasonable doubt about whether the Crown had proved the guilt of the appellant on the accessorial liability basis. 97. The conduct of the three men Hore, Fyffe and Hart both before and after the killing showed that they were acting together. Hore was seen to go to the rear of B Block as were Fyffe and Hart and to come back from there. Hore was also seen coming from the area to the end of the awning and walking away with Fyffe. The body of the deceased was found under the awning within a couple of minutes of Hore and the others leaving. Nor should it be overlooked that the apparent blood splatter occasioned by virtue of the blows to the head of the deceased was at a low level and within a relatively small radius from his head. There was the finding of DNA consistent with that of the deceased on the boots taken from the cell of Hore, the sounds consistent with the body of the deceased being struck and, almost immediately thereafter, the departure of Hore and Fyffe from the general location of the scene of the attack. 98. Hore submitted that the evidence did not prove beyond reasonable doubt that he was present at the scene at the time of the attack. The evidence of Chatto, AH and Bond, if accepted by the jury, established that Hore was present at the scene and that Hore was part of a joint enterprise with Fyffe and Hart to kill the deceased. 99. Hore submitted that there was no prima facie evidence of pre-concert agreement and accordingly there was no basis on which to admit the acts of others in order to prove the crime. Thus it was contended that the acts of Hart, Fyffe and any other person did not become admissible against Hore. 100. However, this does not take sufficiently into account the previously quoted remarks of the joint judgment in Ahern at 99 which envisaged the acts and declarations of participants in furtherance of the common purpose being used to prove the offence charged once there is reasonable ground for inferring a combination. 101. There was plenty of evidence in the present case which would justify the inference by the jury of a combination between Hore, Fyffe and Hart. The conduct of Hore immediately before and after the killing of the deceased was strong evidence of Hore's participation in an arrangement with Fyffe and Hart. Thus the evidence of the acts of Fyffe and Hart was correctly admitted in the case against Hore. 102. Hitherto, while primarily dealing with Hore I have referred to material and considerations which also bear strongly upon Fyffe's appeal. The grounds of appeal in Fyffe cover much of the ground covered by those in Hore. 103. Fyffe submitted that the judge erred in leaving common criminal enterprise to the jury and in his directions as to it, that there was no evidence of a joint enterprise to kill the deceased between Hore, Fyffe and Hart and that there was no evidence of a common enterprise with Hart. However, the jury was entitled to accept what Bond said in his original statement and confirmed in his evidence at the committal proceedings. His evidence to the contrary at the trial was unconvincing. He said that he saw Hart and Fyffe together and that during that time they were passing a rock between themselves. The prosecutor referred to this evidence in his closing speech. The jury was entitled to view that rock as a weapon used shortly thereafter to kill the deceased. Bond's evidence was part of an overall picture which revealed a close association between Hore, Fyffe and Hart immediately before and after the killing. 104. Fyffe contended that the judge in his summing up dealt unfairly and inaccurately with the evidence as to the passing of the rock. Immediately after the closing speech of counsel for Fyffe the judge referred to Bond suggesting that the second man involved with Hart was an unidentified man, and to the comment "let's pass this like a football" and said, "Mr Bond seems to have been describing something other than the beginnings of the attack … He puts the time at 1.30, twenty to 2. Estimates of time can be way out … but the Crown put it that this was some earlier and separate incident. The Crown didn't say what it was. Perhaps it was a dry run … some sort of artifice to deflect attention or suspicion from what they knew there were intending to do later on. Anyway, it seems to have been a separate incident and may I take it that you all take that view of the evidence?" 105. The prosecutor, counsel for Hore and counsel for Fyffe agreed. 106. While the incident mentioned occurred earlier and was separate, the prosecutor did not suggest that it was irrelevant. Indeed, in the prosecutor's final speech he spent some little time (T554, secondly numbered, there being two sets of pages numbered 554) suggesting to the jury that Bond was lying when he claimed in his evidence that he could not identify Fyffe and that he had made an assumption. The prosecutor pointed out that there did not seem to be a dispute about the incident of a rock being thrown involving Hart. The prosecutor invited the jury to accept parts of Bond's evidence. The prosecutor referred to the rock being one of the murder weapons, indeed the murder weapon in terms of the pathologist's evidence and the evidence of two men heading off in the direction of the back of B Block throwing around a large rock some hours prior to the murder. The prosecutor said: "Look, I would suggest to you at that stage it was Mr Hart passing the rock and … he was passing this rock around with … Fyffe some hours before the death of Mr Moore at the hands of the person using the rock." 107. The Crown would seem to be alleging a degree of preparation and planning on the part of Hart and Fyffe. 108. The judge after summarising and reviewing the evidence of Bond, said (48-49): "The Crown relies on the evidence of Mr Bond. The Crown says that the importance of this incident [Hart and Fyffe passing the rock] is that whatever was happening was obviously connected with what happened a little later to Mr Moore. There is no precise attempt by the Crown to say just what it was that was going on, that the Crown at least impliedly invite you to conclude that Mr Fyffe on that occasion picked up the sandstone block and was using it, and I say the sandstone block because the Crown case is that that was the sandstone block that was found by Mr Moore's body shortly after he was killed. It was used to kill him." 109. The judge then cautioned the jury about relying on Bond's evidence. There is nothing unfair or inaccurate or erroneous about the way in which the judge dealt with Bond's evidence. The jury may well have regarded Bond's original version of what happened as telling and destructive of Fyffe's case. This is so even allowing that Bond never claimed that the rock he saw was the rock used to assault the deceased. However, the description of the rock, in size and material when seen in the light of the other evidence could well have been regarded by the jury as matching the rock found at the murder scene. It was open to the jury reasonably so to conclude. 110. Fyffe submitted that there was no evidence against him of pre concert in a common enterprise with Hore to kill the deceased. Fyffe submitted that there was no evidence of Fyffe, Hore and Hart having been in the presence of each other immediately prior to the death of the deceased. 111. There was evidence from Charlton of the private meeting on the evening of 18 March 2000 between Hore, Fyffe and Hart and the evidence of the conduct of Hore and Fyffe before and after the killing. The lies told by Fyffe and Hore also had to be taken into account. The evidence justified the jury in concluding that Fyffe was in very close proximity to the deceased when he was killed and that he was acting in concert with Hore and Hart. 112. In support of his complaint that the judge erred in admitting evidence relevant only to Hore against him, Fyffe pointed out that the prosecutor in his opening speech had stated that a search of Hore's cell located a pair of size 12 boots, that on the right boot there appeared to be individual blood spots consistent with being splattered onto the boot, that these spots were examined and an area of staining was submitted for scientific investigation and that the stain examined had a DNA profile consistent with that of the deceased. There was an issue whether the boots were worn by Hore. The judge reminded the jury that there was a real issue whether the right boot was ever worn by Hore (SU 125.9, SU 127.4). At SU 127.4-5 the judge directed the jury that if they were going to rely on the test results they needed to be confident that Hore did wear the boots. The judge summarised the arguments for and against the conclusion that Hore wore the boots (SU 127 and 128). He then summarised the DNA evidence and what it meant. 113. At SU 143 the judge stated. "…the effect of all this expert evidence, the DNA experts and Miss Fogarty, seems to be this, that that condition of the boots as revealed by the tests … shows that they could have been worn by Mr Hore. There is nothing that they noticed that showed that they could not but that is as far as it goes and it is also acknowledged by them that the test results are consistent with those boots having been worn by any number of other people …" 114. At SU 144 the judge reminded the jury that the issue raised by Hore's counsel was whether the boots were worn by Hore at the time the deceased was killed. The judge dealt specifically with the DNA on the right boot and told the jury that they were entitled to conclude that the contributor to the DNA on the boot could have been the deceased and that the contributor and the deceased share a DNA profile which occurs very rarely in the community. The judge reminded the jury that Hore contended that they would not be satisfied that the DNA on the boots came from blood. It was never ultimately established that what was on the boot was blood. The Crown contended that the stained area on the right boot looked like blood, splattered like blood and shared DNA as blood can do. The DNA on the boot could have come from some other deposit on the boot. 115. The judge dealt in a comprehensive way with the issue of whether Hore was wearing the boots, the test results and what was found on the boots and its import , pointing to the evidence and contentions in support of Hore's case. 116. At the trial the judge confined Sgt Jones (the police blood splatter expert) to saying that the numerous individual spots on the surface of the right boot had the appearance of blood. Objection was taken to the admission of the boots, and the test results and the evidence relating to them as against Fyffe. 117. The judge held that: (i) the evidence was capable of showing that the boots bore the blood of the deceased; (ii) the place and the time at which the boots were obtained, combined with DNA evidence showed that the boots could have been worn by Hore at the time of the killing; (iii) if the splashes on the boots were splashes of the deceased's blood, the evidence was capable of showing that Hore was present when the deceased was killed; (iv) the evidence was capable of showing that Fyffe was in the presence of Hore near the place of the death of the deceased and moving towards it at a time that could have been shortly before the time of death and that the two were in each other's presence moving away from the direction of that place at a time that could have been shortly after the time of death; and (v) any-evidence which proves Hore was present when the deceased was killed was therefore capable of proving Fyffe was also present. 118. I agree with the reasons given by the judge for admitting the challenged evidence against Fyffe. The judge's decision was correct. 119. At the trial the judge was not asked to exercise his discretion to reject the evidence. However, on appeal it was submitted that the evidence was so patently tenuous and had such a disproportionate prejudicial effect that it should have been rejected in the exercise of the judge's discretion. It was further submitted that, whether or not this point was raised by counsel for Fyffe, the judge should have considered it. Fyffe complained that the judge had not made positive findings and relied on a series of possibilities. The judge, recognising that he was not the fact finding tribunal, was indicating, in measured terms the positive findings which the jury could make. Fyffe complained that the Crown did not open a case that Fyffe and Hore were together immediately before the death nor that either had carried a sandstone block. Fyffe submitted that there was no evidence that he was in the presence of Hore at a time which was shortly before the time of death. 120. The Crown did specifically refer to the presence of Hore in Fyffe's company at about the same time Hart walked out of B Block with the deceased and to all these men walking around behind B Block. Further, AH saw Hore, Fyffe and Hart walk back from behind B Block. There was evidence that prior to the death on 19 March 2000 Hart and Fyffe had been seen passing a substantial rock between themselves and going behind B Block. There was also evidence that shortly before the killing Hore, Fyffe and Hart had been seen going behind B Block, admittedly in groups and via different routes with one of them, Hart, having fetched the deceased and escorted him around behind B Block. 121. Fyffe submitted that the judge erred in his directions on accessorial liability. The judge told the jury (SU 178-9) that the Crown had to prove beyond reasonable doubt that: (i) there was, at the relevant time, a joint criminal enterprise by which the accused, whose case was being considered, and others agreed to attack the deceased and kill him or do him really serious injury; and (ii) the accused, whose case was being considered, took part in accordance with the agreement by attacking Mr Moore or by assisting the attack, or by encouraging it or by being present standing by ready to assist if called upon. 122. The judge reminded the jury that mere presence without encouragement or assistance or readiness to assist is not enough. 123. These directions appeared towards the end of the summing up when the judge was reminding the jury "of the most important things that I have said to you." 124. Fyffe complained that the judge gave no direction or explanation of what kind of encouragement by one who was not present would suffice and that in a case where the Crown sought to rely on expressed animosity sometime before the killing this was doubly dangerous. 125. This was not a case where further explanation was required. "Encouraging" is an ordinary English word in wide popular use whose meaning is well understood. Further, the Crown case was that Hore, Fyffe and Hart were present in person at the murder scene. 126. Fyffe submitted that even if the jury could have been satisfied of his presence at the time of the killing (which he submitted it could not) there remained no evidence of an agreement to murder. While it was not in issue that whoever struck the deceased intended to kill or at least cause grievous bodily harm that did not mean that others present agreed to do so, nor that this was part of the plan. 127. In view of the evidence earlier mentioned the jury would not have had any difficulty in concluding that Fyffe was present at the time of the killing. That evidence was also capable of justifying the inference of an agreement to murder between Hore, Fyffe and Hart and that that agreement was implemented. . 128. The numerous post trial objections to the summing up should be rejected. In the main they raise theoretical objections of no practical consequence in the light of the evidence. 129. These grounds of appeal should be rejected. Hore Ground Of Appeal 2(c) 130. This ground reads: (c) alternatively to (b), if the evidence did support the offence of murder in each case his Honour erred in law in not directing as to manslaughter and the intentions of Hore if shown to be present at the scene beyond reasonable doubt. 131. This ground is raised for consideration in the event of the court concluding that the summing up covered and adequately directed the jury as to accessorial liability. 132. Hore contended that this was a case in which, absent proof of the specific state of mind required for murder, the act of the offender might answer the description of an unlawful and dangerous act. It was implicit in the submission that on one view of the facts the Crown might not prove that Hore had the requisite specific intent. Fyffe contended that manslaughter was a viable verdict. It was submitted that the judge was obliged to give a direction as to manslaughter even though such a direction had not been sought. 133. In the present case a verdict of manslaughter was not reasonably open on the evidence. The savage assault pointed unequivocally to an intention to kill This was not a case where there was any suggestion or any basis for the suggestion that Hore was an innocent bystander to an assault by Fyffe and Hart. Hore's defence was that he was never present. I accept the Crown submission that the jury was entitled to reject Hore's contention that he was never present and to conclude from the identification evidence, the DNA evidence relating to the boots found in the possession of Hore, Hore's subsequent actions in immediately showering, and the remainder of the evidence that Hore was part of a joint criminal enterprise to kill the deceased. 134. Upon the evidence it was not possible to reach any conclusion other than that Hore was acting in concert with Fyffe and Hart. Indeed, the Crown correctly did not advance any other case. Once the conclusion mentioned was reached there was no realistic basis on which a verdict of manslaughter could be entered as the suggestion that Hore lacked the necessary intent was not open. 135. This ground of appeal is rejected. Hore Grounds of Appeal 4, 5 and 6 Fyffe Grounds of Appeal 4 and 5 Hore Ground 4: His Honour erred in law in reversing the onus of proof in respect of: (a) the intention of Hore; (b) the wearing and/or possession of the boots Ex Q; (c) not directing that the denial of Hore in respect of the boots had to be negatived by the Crown. Ground 5: (a) The evidence of Sgt Jones was not admissible wholly or in part. (b) His Honour misdirected and/or failed to direct adequately in respect of Sgt Jones' evidence or parts thereof. G round 6: His Honour erred in law in misdirecting and/or failing to direct the jury that the following in respect of the boots Ex Q had to be proved beyond reasonable doubt (a) possession; (b) wearing at the time of death at the scene; (c) that the splatter was of blood; and/or (d) such blood was that of the deceased. Fyffe Ground 4: The trial judge erred in directing the jury that they did not have to find a particular fact proved beyond reasonable doubt. Ground 5: The trial judge erred in his directions to the jury on the use they might make of DNA and assumed blood on a boot. The submissions in support of these grounds were wide-ranging and did not always seem to be related to these grounds. 136. Hore submitted that the evidence in respect of the boots had to be considered independently of the acts of Hart and Fyffe and in the first place separately in respect of him (Hore) to establish a prima facie case of murder. A jury does not have to consider evidence in any sequential order although it must apply the correct legal principles. The jury determines how it will approach the evidence. In some instances the application of the correct legal principles may point to the order in which the issues should be considered. 137. Hore undertook a detailed review of the evidence as to the boots and the tests which were carried out and the gaps and deficiencies in such evidence. He submitted that the evidence against him as to presence at the scene in the first place was as to the boots. While the boots and the tests were aspects of the evidence there was other evidence from which it could be safely inferred, indeed had to be inferred, that Hore was present at the scene of the murder. 138. Hore submitted that there was no independent evidence (that is, other than possibly the boots themselves) that he was wearing boots on 19 March 2000. There was no direct evidence of that. However, the scientific evidence established that Hore could not be excluded as a person who wore the subject boots and could have been a contributor to the DNA found on them. There was the further evidence of the boots being in Hore's cell and Hore's foot size being broadly consistent with the boot size whereas both Hart and Fyffe had a much smaller foot size. In the light of this evidence and all the other evidence the jury was entitled to conclude that Hore was not only wearing the subject boots but was also in very close proximity to the deceased's head when it was struck with a brick and/or a rock. 139. The evidence of Hore taking a shower in the middle of the afternoon immediately after the killing supports the inference that Hore was taking prompt steps to remove any traces of blood from his person. The failure to clean the boots is explicable, as is apparent from the photos of the boot, by the blood splatter on the right boot being in minute quantities and not readily visible being on the sole of the boot just above its base. 140. As to Hore Ground 4, the judge did not reverse the onus of proof in respect of the intention of Hore, the wearing and/or possession of the boots by Hore and not directing the jury that the denial of Hore in respect of the boots had to be negatived by the Crown. The Crown led its evidence as to the boots from a series of witnesses. Hore did not give evidence but he had made a statement about the boots to a police officer. The jury had to evaluate all the evidence. The direction suggested would have been incorrect. Hore did not develop any submissions relating to this ground. 141. As to Hore Ground 5, Sgt Jones was, by having completed the Crime Scene Examiner's Course, NSW Police Service, Forensic Medicine Certificate 12, Sydney University and the Diploma of Applied Science in Forensic Investigation, Canberra Institute of Technology, by having examined many hundreds of crime scenes over the past sixteen years and by having studied and examined bloodstain patterns, qualified to give expert evidence as to crime scenes and bloodstain patterns. He was trained in the use of photographic equipment and low powered microscopes. Sgt Jones had not visited the crime scene but he had studied photographs of it. He explained what conclusions could be drawn from what is depicted in the photographs. The judge ruled that Sgt Jones was not qualified to say that the stains and spots on the boot were blood but that he could say that they had the appearance of blood. He was correctly permitted to say that what was on the boots looked like blood and bore a pattern characteristic of the way that blood splatters. 142. In his submissions Hore did not elaborate on Ground 5. Perhaps one basis for the ground was that Sgt Jones was relying principally upon his extensive practical experience and examination of numerous crime scenes. As the judge pointed out in his summing up, the evidence of the pathologist (Dr Hulewicz) and the photographs revealed that the splattering of blood demonstrated that the deceased was struck repeatedly while his wounds were bleeding. 143. Perhaps Ground 5 reflects the objection taken during the trial that Sgt Jones had not seen the crime scene and was relying on his examination of numerous photographs taken by Snr Const Anastasiou and of his examination of the boots from Hore's cell. 144. The judge was correct in holding that Sgt Jones was qualified to give evidence as to the markings, splatters and patterns of blood which he observed. He demonstrated to the jury his points about the splattering on the boot (SU 168). 145. The judge dealt carefully with the evidence of Sgt Jones and its limits (SU 149 and 168). The criticism that the judge misdirected and/or failed to direct adequately in respect of Sgt Jones' evidence or parts thereof is unfounded. 146. Ground 5 should be rejected. 147. As to Hore Ground 6, he complained that the judge's directions as to circumstantial evidence were inadequate and that the judge should have directed the jury that two facts had to be proved beyond reasonable doubt, namely, that the substance on the boots (or boot) was blood and that the blood was that of the deceased. Reliance was placed on the judgment of Dawson J in Shepherd v The Queen (1990) 170 CLR 573 at 579-580. It was submitted that proof of the two facts mentioned was indispensable to the proof of Hore's guilt and had to be proved beyond reasonable doubt. They were characterised as primary or intermediate facts. 148. Hore advanced these contentions: "The only evidence of presence was the pre-concert agreement, of which there was no evidence, the boots and the evidence of Chatto of seeing the appellant walking away from the scene. The evidence of Chatto in isolation was capable of the innocent explanation that he (Hore) was in the vicinity, saw the attack and was getting away from any involvement. To put the appellant at the scene itself the evidence of the boots was essential. (There was no evidence aliunde that one of the attackers wore boots). …if it were not proved that it was blood on the boots and that it was the deceased's blood, presence of the appellant could not be proved beyond reasonable doubt… …It would also need to be proved that it was the accused who was wearing them at the time beyond reasonable doubt …" 149. The Crown contended that as the finding of blood on the right boot was not an essential element of the Crown case it was not required to prove this fact beyond reasonable doubt. The other evidence against Hore was sufficient to prove the Crown case beyond reasonable doubt. That included Chatto's evidence of Hore and Fyffe walking in single file from an area near the awning. The area where the killing took place under the awning was not visible from the surrounding cells. That area occupied a relatively small space. It must not be overlooked that Chatto saw the battered dead body of the deceased at the crime scene within a very short time of Hore and Fyffe walking away from the area adjacent to the awning. There was also the evidence of DNA consistent with that of the deceased's DNA, which was of rare occurrence, being found on the boot, the rock and the brick. Mr Goetz conducted a presumptive test on the boot for blood and this was positive. There was insufficient material to conduct further tests including a conclusive test. The circumstantial evidence direction given was adequate in the circumstances of the present case (SU25-27). The judge told the jury that: (a) they could only find an accused guilty of a crime on the basis of circumstantial evidence if all other reasonable explanations consistent with innocence are excluded; (b) there were two essential circumstances in the case of each accused which the Crown had to prove beyond reasonable doubt, namely, "he was a party to the joint criminal enterprise alleged and that he was present when Mr Moore was killed, taking part in the attack or assisting in it or encouraging in it or standing by ready to assist if called upon.; (c) none of the other circumstances was essential provided the circumstances which had been proved led to the inference of guilt and no other reasonable explanation; (d) they did not have to be satisfied beyond reasonable doubt that it was blood on the boots. 150. Those directions were correct and adequate. Ground 6 of Hore's appeal is rejected. 151. In support of his Appeal Ground 4 Fyffe submitted that it was essential that the Crown establish that he was present at the scene at the time of the killing and that Chatto's evidence could not establish that. Fyffe submitted that to establish that fact against Hore (and wrongly against Fyffe) the Crown relied on the presence of the deceased's blood and DNA on the boots. Fyffe contended that establishing the blood and DNA on the boots was an indispensable intermediate fact which had to be found beyond reasonable doubt. I do not agree. Fyffe was seen walking from the area near the awning with Hore. Chatto found the dead body of the deceased within minutes of seeing Fyffe walking away. Further, Hore and Fyffe had gone around the back of B Block as had the deceased very shortly beforehand. There was ample evidence apart from what appeared to be blood on the boots to establish Fyffe's presence at the scene. The circumstantial evidence gave rise to a compelling inference that Fyffe was present at the killing. 152. Fyffe contended that although the judge did tell the jury that there was a live issue as to whether there was blood on the boots and whether the DNA which was ultimately located came in fact from blood (SU 179/180), that direction was effectively minimised by his earlier direction at SU 149 "Now the Crown case on the right boot is that the large splatters identified by Sgt Jones were blood and the blood was deposited there during the attack on Mr Moore. The Crown case is that the DNA extracted from the sample taken from the boot came from the blood. Fyffe further complained that the DNA sample taken from the boot came from the blood". I do not agree that summarising the Crown case effectively minimised the judge's reminder to the jury that there was a live issue as to the matters mentioned at the start of this paragraph. 153. Fyffe further complained that despite there being no precise evidence from what stain or other mark Sgt Jones had taken a scraping or stain, the judge described the evidence as "Those areas are generally the same, in other words, the DNA sample was taken from a scraping or stain in the general area of the boot" (SU150) and also stated, "this was in the same area tested by Goetz". This is not objectionable. Fyffe's submissions involve an approach which is overly refined. 154. Fyffe further submitted that though the judge posed some of the issues at SU151 (and following), he never instructed the jury that they had to reach even a firm conclusion nor how they could do so. Fyffe contended that the jury on any standard could only guess. 155. The jury could reach a finding of guilt by a number of paths and so long as each member reached that finding it was not essential for them all to travel the same path. He told the jury the essential facts which had to be found to sustain such a finding. The judge made it clear that the facts found proved by them must be such that the only rational inference was one of guilt. See the judge's directions at SU26-27. The judge referred to the facts in considerable detail. The jury would have understood the task which they had to perform. Appeal Ground 4 of Fyffe should be rejected. 156. As to Fyffe Ground 5, reference was made to these directions of the judge (SU148-149). "If it was blood on the boot, if that is the conclusion you come to, you can use the evidence, if you wish, to reason that the DNA that was extracted by Mr Goetz came from that blood. You know the DNA had a profile which matched the profile of Mr Moore's DNA and that that profile is very rare in the community with the consequent high probability, though there is no certainty, that the DNA on the boot came from Mr Moore. If it did, you may reason that Mr Moore's blood was deposited on the boot during the attack and that would require the wearer of the boot to have been present during the attack. If you come by this process of reasoning to the conclusion that Mr Hore was present when Mr Moore was attacked, you can use your conclusion to support the evidence of anybody who identified him as one of the men near the place where Mr Moore was killed close to the time at which he was killed. If you accept the evidence which is said to identify Mr Fyffe as being a man in the presence of Mr Hore close to the time and place at which Mr Moore was killed, then you can use the evidence of the DNA and blood in Mr Fyffe's case. You may reason if you wish that if Mr Fyffe was with Mr Hore at the time and if the blood shows that Mr Hore must have been present during the act of killing, there is consequently a greater probability that Mr Fyffe was present also during the act of killing." 157. Fyffe contended that the argument and directions were fallacious in so far as they concerned him. This point was developed in oral argument. The judge was pointing out to the jury that if: (1) Fyffe and Hore were together immediately before and immediately after the killing; and (2) they were satisfied that there was blood on Hore's boot; and (3) by reason of the DNA tests it came from the deceased; then it could be inferred that both Hore and Fyffe were present at the killing. 158. The combination of the positive presumptive test of blood, the material on the boot having the appearance of blood, the splatter pattern on the boot resembling that of the blood splatter and the DNA evidence taken from the boot and matched to that of the deceased, when taken with the evidence of the close association in time and location of Hore and Fyffe, was very damaging to the case of Fyffe as well as that of Hore. 159. The directions given by the judge were not objectionable. He was not inviting the jury to reason impermissibly. The bloodstain and DNA evidence were secondary. What was of primary importance was the prior close association of Hore and Fyffe and their being together immediately before and immediately after the killing in the area where the deceased was killed. While invitations to embark upon logically impermissible exercises cannot be sustained, that did not happen in this instance. The strength and bite of the Crown case should not be overlooked. 160. Appeal Ground 5 of Fyffe should be rejected. Hore Ground 7 His Honour erred in law in directing and or failing to direct the jury adequately or properly as to lies. 161. At SU160-161 the judge, when dealing with what the Crown alleged were lies on the part of Fyffe,gave general and unexceptional directions as to when lies could be used as evidence of consciousness of guilt. At SU170-172 the judge dealt with an alleged lie on the part of Hore. 162. During an interview on 15 May 2000 at Burwood Police Station between Hore and Det Sgt Jenkins (now an Inspector), this conversation occurred: " Jenkins: "At the time you were in Silverwater, did you have a pair of black boots? Hore: Yeah, while I was working in the metal shop. That was for about four days." Jenkins said that he then showed Hore four photos of a pair of black boots which were removed from his cell, Cell 72, on 21 March 2000 " Jenkins : Are these your boots? Hore: They all look the same. Jenkins: This pair of boots was removed from your cell after a search by Corrective Services officers. Hore: Was that while I was present. I was present? Jenkins: No. Hore: I didn't have any boots in my cell. I only worked in the shop 4 days" 163. Unfortunately, the judge (at SU171) slightly misquoted the evidence due to it being slightly out of sequence. According to the summing-up (but not the transcript of the evidence) after Hore had asked "Was that while I was present?" this followed " 'A. Yes, that's right' and Inspector Jenkins said 'No' and Mr Hore said: 'I didn't have any boots in my cell. I only worked in the shop 4 days'." 164. Both the general sense of the answer and the fact were that Hore was not present when the boots were removed. The slip of "Yes, that's right" is of no consequence. 165. The judge gave the jury these directions at SU172-173: "The Crown says that what Mr Hore said was a lie and was told because Mr Hore could not give an explanation of the presence of the boots in his cell in any way consistent with his innocence. In other words, that he knew that he killed Mr Moore and that is why he gave that untruthful answer. I have already told you the care you have to take in approaching evidence of this kind and let me repeat to you that before you can use it in the way contended for by the Crown you must be satisfied not only that it was a lie but that it was a deliberate lie, that is, told for that purpose. If you are satisfied that it was a deliberate lie, you must be satisfied that it related to an issue material to the trial, that it revealed some knowledge of the offence and that it was told because Mr Hore knew the truth of the matter and he knew the truth of the matter would implicate him in the offence charged if he told it. Putting it another way, he said what he said was untruthful to his knowledge because of the realisation of guilt and a fear of the truth. You must also be satisfied before you can use it that what was in his mind was guilt of the offence charged and not some other crime. I went on before to point out to you that people do not always act rationally and there are often all sorts of reasons why they may say things which they know are not true. Now the response to this is very simple. It is not a lie at all. I don't need to rehearse the arguments again, but you know what Mr Spencer submits to you about the opportunity that others had, you know, to put the boots in cell 72.You know that Mr Hore had boots. You have the record there of them. He was telling the truth in at least part of that conversation because you know that he had boots on issue and that he wore them for work. He said that he had them for about four days he said. In fact that is dead right if you regard 'about four days' the same as five days because the record of work shows that he was working for the period of five working days between 2 and 8 March. So Mr Spencer says, 'Don't use this evidence. It is simply not a lie at all. It just goes nowhere'." 166. Hore submitted that the first paragraph of these directions reverses the onus of proof as the onus was on the Crown to show that Hore had the particular boots in his cell prior to his being removed and that the boots could not have been "planted" (which could not be and was not proved) and that the boots found were those in fact issued to him. 167. Hore further submitted that the second sentence of the first paragraph of the passage quoted went too far as the Crown did not allege that Hore personally killed the deceased. 168. In that first paragraph the judge was summarising the Crown's argument and its effect and no more. He then proceeded to give unexceptional directions as to the matters of which the jury must be satisfied before it could rely on lies as evidence of a consciousness of guilt. 169. The judge next put Hore's defence, namely, that what he said was not a lie, that others had plenty of opportunity to put the boots in his cell and that he told the truth because he said he had boots for work for about four days. The records show he was working for five days between 2 and 8 March 2000. The boots were found in Hore's cell a day after he was removed from it. 170. Hore made a series of factual submissions the effect of which was that it was not reasonably open to the jury to find that he had told a lie when he said that he did not have any boots in his cell. These factual submissions include that his answers were not shown to be incorrect, that what he said was not shown to be a deliberate lie about a material matter and that he was not questioned about the boots for some two months after the killing. After such a lapse of time the memory of all the details fades. Hore submitted that his statement to Inspector Jenkins could not be proven beyond reasonable doubt to be a deliberate lie or even on the balance of probabilities and could not be used to show a consciousness of guilt. 171. Despite the lapse of two months Hore would have realised the questions of Inspector Jenkins about the boots could be significant. Hore's statement that he did not have any boots in his cell was clear and that answer was given after he had asked and been told that the boots had been removed from his cell when he was not present. One of the difficulties for Hore was that there appeared to be blood on the boots in a telltale splatter pattern. The jury was entitled to reject the suggestion that the boots had been "planted" in Hore's cell. The judge adequately put the contentions of both the Crown and Hore and correctly gave extensive directions as to lies and their use in accordance with Edwards v The Queen (1993) 178 CLR 193 at 209-211. The Crown had specifically relied upon the denial by Hore of having the boots in his cell and his assertion that he was in his cell at the relevant time. 172. No re-directions were sought by counsel as to the judge's directions on lies, his summary of the evidence and his summary of the submissions of the Crown and Hore on this issue. 173. Appeal Ground 7 of Hore should be rejected. 174. Hore's Grounds 9, 10 and 11 and Fyffe's Ground 6 may be taken together. Hore Ground 9 His Honour erred in law in failing to determine on the voir dire the facts necessary to determine in the trial whether the interests of justice would require the witness Chatto to answer questions. Hore Ground 10 His Honor erred in law in determining not to apply the provisions of s 128 of the Evidence Act in the trial in respect of requiring the witness Chatto to answer questions as provided in the section and granting a certificate under the section. Hore Ground 11 His Honour erred in law in misdirecting or failing to direct the jury adequately or properly in respect of the witness Chatto. Fyffe Ground 6 The trial judge erred in not requiring the witness Chatto to answer questions. 175. Chatto had initially claimed that his cell mate, McIvor, was present in his cell when he made his observations of the appellants leaving the crime scene and later gave evidence in the committal proceedings to that effect. Later, he told the Crown that the assertion that McIvor was present was a lie. He wanted to assist McIvor gain a benefit from the Parole Board. 176. At the start of the trial on 6 May 2002, and in the jury's absence, the judge was told by the prosecutor that it would be necessary to have Chatto called in the absence of the jury and, "the issue of whether a certificate should be granted in terms of s 128 of Evidence Act [resolved]. There would need to be an exploring of his evidence concerning the issue as to why it is that he lied in his original statement to police about McIvor being present with him when he made certain observations." 177. The jury was empanelled early on 7 May 2002. The judge then sent them away so he could deal with a number of preliminary matters including what was to happen as to the evidence of Chatto. Hore's counsel (at p6 of 7/5/02) told the judge that he had been supplied with a copy of some notes of conferences held by the Crown Prosecutor with Chatto and McIvor. Hore's counsel indicated that there was "not only a question of perjury but … also an attempt to pervert the course of justice." Counsel commented: "That may well be relevant as to whether your Honour may be minded to consider a certificate specifically relating to this area [McIvor's presence in the cell and the provision of statements by them as to that]. I alert my friend to that. I flag it so your Honour can give it consideration." 178. The prosecutor submitted that Chatto would be entitled to ask for a certificate. He had been asked to obtain some private legal advice but had not done so. The prosecutor stated that if he were to use Chatto "he would need to be warned. It is entirely a matter for himself as to what he wishes to do but … the calling of him and he being warned, should occur at least in the absence of the jury and then the question of whether he wishes to avail himself of whether a certificate should be given might be considered." 179. Chatto was called and examined by the prosecution on the voir dire. He identified an eight page statement he had made and signed for the police on 21 March 2000. When asked if the contents of all the statement were true or whether he would like to amend something in his statement, Chatto replied, "Yes there is something here actually … I wish not to give any evidence that may incriminate me." 180. The judge explained to Chatto (p9 of transcript of 7/5/02) that he had to enquire into and ascertain whether there were reasonable grounds for Chatto's objection. The judge continued: "If I do [so] find … the result may be that I will not require you to give evidence. On the other hand I may decide to require you to give evidence so that you will be obliged to give the evidence even though the answers you give may tend to incriminate you. But in that circumstance if I require you to give the evidence then the Court will give you a certificate which will stop the authorities proceeding against you for any offence based on anything you said in that evidence. Do you follow?" 181. Chatto replied "Yes". 182. The judge then had Chatto specify the portion of his statement he wished to amend. Paragraphs 7 and 8, p3, para 9, lines 4-6 and the other references in the statement to McIvor were affected. Chatto, in answer to the judge said that these portions were not true. 183. The judge said: "…it has been established that there are reasonable grounds for Mr Chatto to have raised an objection to giving evidence in this matter … I will give him a certificate for such answers as he has so far given as might tend to incriminate him." 184. The judge was told by counsel for Hore that there was to be argument about whether Chatto should have a certificate for evidence generally in the trial. 185. The prosecutor completed asking questions on the voir dire and tendered Chatto's statement. Counsel for Hore cross-examined Chatto who declined to answer many of counsel's questions on the ground of self-incrimination. Chatto did however say that he decided to tell the authorities that he had lied because of his conscience. 186. Counsel for Fyffe also cross-examined Chatto on the voir dire. Chatto claimed that he had first told a police officer late in 2001 when the case was due to be heard, that McIvor was not present and that he showed that officer which parts of his statement he wished to change. Chatto was unable to recollect the officer's name. 187. Hore's counsel submitted that the judge should not make any determination as to Chatto until McIvor had been called. The Crown had had difficulty in locating and contacting McIvor. Although served with a subpoena he had not attended at Court on Monday, 6 May 2002. At that stage the Crown was unsure whether the attendance of McIvor at the trial could be procured. 188. The transcript records that counsel addressed on the voir dire but does not record the submissions which were put. 189. In his reasons the judge stated, "An application has been made for the granting of a certificate under s 128 Evidence Act to … Chatto". It is not stated who made the application. There is one minor factual inaccuracy in para 5 of the judge's reasons. Chatto told a police officer, not the prosecutor and his solicitor late in 2001, that the presence of McIvor was untrue. He told the prosecutor and the instructing solicitor of this at a conference on 1 May 2002 confirming that he had previously told a police officer at Court on the previous time the matter was listed for hearing. This inaccuracy is of no consequence. 190. The judge notes that McIvor had a conference with the prosecutor on 30 April 2002 in which he stated that he was not present in the cell as outlined in his statement and that as a result the Crown did not intend to call McIvor to give evidence. 191. To follow the judge's reasons I interpolate the provisions of s 128(1)-(7) of the Evidence Act 1995: "128 Privilege in respect of self-incrimination in other proceedings (1) This section applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness: (a) has committed an offence against or arising under an Australian law or a law of a foreign country, or (b) is liable to a civil penalty. (2) Subject to subsection (5), if the court finds that there are reasonable grounds for the objection, the court is not to require the witness to give that particular evidence, and is to inform the witness: (a) that he or she need not give the evidence, and (b) that, if he or she gives the evidence, the court will give a certificate under this section, and (c) of the effect of such a certificate. (3) If the witness gives the evidence, the court is to cause the witness to be given a certificate under this section in respect of the evidence. (4) The court is also to cause a witness to be given a certificate under this section if: (a) the objection has been overruled, and (b) after the evidence has been given, the court finds that there were reasonable grounds for the objection. (5) If the court is satisfied that: (a) the evidence concerned may tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, an Australian law, and (b) the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country, and (c) the interests of justice require that the witness give the evidence, the court may require the witness to give the evidence. (6) If the court so requires, it is to cause the witness to be given a certificate under this section in respect of the evidence. (7) In any proceeding in a NSW court: (a) evidence given by a person in respect of which a certificate under this section has been given, and (b) evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence, cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence." 192. The judge, after referring to s 128(2) of the Evidence Act 1995 held that Chatto had reasonable grounds for not wishing to "give evidence about the circumstances in which he decided to include and then exclude the claim that Mr McIvor was present, including about conversations he had with Mr McIvor before or after the making of the statements". 193. The judge then said: " 9. As the Crown Prosecutor has pointed out, the inquiry is for the moment limited to s 128(2). In that respect I direct that a transcript of Mr Chatto's evidence today be taken out and annexed to a certificate under s 128(3), which should refer to that evidence. 10. Technically the position has not been arrived at at which Mr Chatto refuses to give evidence so as to bring into play the provisions of subs (5). It seems appropriate, however, to assume that Mr Chatto will, if asked before the jury, refuse to give evidence about relevant matters on the ground that his answers may tend to incriminate him. It seems certain that subs (5) will come into play. Para (a) is fulfilled because Mr Chatto's answers, if given, will reveal that he has at least given untrue evidence on oath to the Magistrate. It may also reveal other offences, including offences based upon whatever arrangement he may have had with McIvor. 11. The question which will then arise is whether in accordance with para (c) the interests of justice require that the witness give the evidence to which objection is taken. 12. As I said before, evidence of this nature is always regarded by the courts as likely to be unreliable, if only because witnesses may expect to receive a benefit from giving it. This evidence is subject to the additional unreliability, in my view, that it may be seen as tainted by the attempt by Mr Chatto to have another person corroborate his evidence. It is true that the portion of Mr Chatto's statement now said to be false may be regarded as a discrete portion of it and that one possible view is that all Mr Chatto has done is unwisely try to assist another prisoner get some time off his sentence by coming in on his story. As I say, that is a possible explanation, but it does leave the evidence in my mind in a very parlous state, and in deciding how the interests of justice are best served it weighs heavily in my mind. 13. Accordingly I indicate that although Mr Chatto may have a certificate for the evidence he has so far given I am not inclined to grant him a certificate for any evidence he may give if called to give evidence before the jury." 194. The judge helpfully added an addendum to his extempore judgment further explaining his reasons for decision. He was troubled by the deliberately untrue portions of Chatto's statement, repeated in his evidence in the committal proceedings, and the doubts which that cast on the reliability of his evidence as a whole. The judge concluded: "If he is called to give evidence he will be told that he need not answer any question the answer to which may incriminate him. He will not be directed to answer any such question. If he chooses to give any answer which may tend to incriminate him he will suffer the consequences and that, I think, will serve the interests of justice. If he refuses to answer any such question the defence will be entitled to comment, the value of his evidence will be reduced and the Crown case weakened. That, too, will serve the interests of justice." 195. The subject arose again while Chatto was giving evidence at the trial on 9 May 2002. The morning adjournment occurred during his evidence in chief. On resumption and in the absence of the jury the prosecutor, in response to the judge, stated that he did not intend to ask Chatto any question the answer to which would be likely to expose any offence he had committed. 196. Counsel for Fyffe acceded to the judge's request to indicate when he arrived at the point in his cross-examination where Chatto's answer would expose him (to possible prosecution). The judge said: "I am assuming then that Mr Chatto will take the objection. I mean he has fairly indicated that he will. I have indicated there are reasonable grounds for the objection. I am also bound to tell him that if he decides, notwithstanding that he has been told to give that evidence (sic) , then he will get a certificate and the effect of the certificate. I have already indicated however, that when we come to subsection 5 I would not be inclined to require him to give the evidence. In other words, I think I expressed it the other day in terms of I would not be inclined to give a certificate. That is strictly not correct to put it that way. If I require him to give the evidence, then I have to give him a certificate. So the real question for me is whether I should require him to give the evidence and, as I am presently inclined to think, I do not propose to require him to give the evidence." 197. Counsel for Fyffe said that he saw that Chatto's concession that McIvor was not present did not matter one way or the other and that what mattered was getting before the jury Chatto's prior inconsistent statement. 198. In discussion the prosecutor referred to s 192 of the Evidence Act. The judge explained that he did not think that he had a discretion under s 128(2) of the Evidence Act 1995 and that was why he went to s 128(5). The judge said: "… it seemed to me that the only discretion that arises is under subsection (5) that that was the discretion I was being asked to exercise …" 199. The evidence in chief of Chatto continued until the luncheon adjournment. 200. At an early stage of Chatto's cross-examination by counsel for Fyffe (T108 of 9/5/02) and in front of the jury, the judge told Chatto that he need not answer any question if the answer may tend to prove that he had committed an offence. The judge further told Chatto, "if notwithstanding what I have just said to you, you do give any such answer the Court will give you a certificate. That certificate will have the effect that the evidence you give and the evidence of any information, document or thing obtained as a direct or indirect consequence of your having given that evidence cannot be used against you." The judge explained that this would not stop him being prosecuted for giving false evidence in that proceeding. 201. Chatto refused to answer certain questions as to the truth of some of the statements in paras 7 and 8 of his statement. He also refused to answer some questions as to matters he had been asked concerning McIvor at the committal proceedings and his response. 202. Both Hore and Fyffe complained that the voir dire was incorrectly limited and that the interests of justice required a fuller enquiry. The Crown and both appellants were given a full opportunity to cross-examine Chatto on the voir dire and counsel for both appellants did cross-examine him. They did not then complain or suggest that they wanted to cross-examine Chatto further on the voir dire or that they had been cut shoprt in their cross-examination. Both were given the opportunity to make submissions and did so. Counsel were entitled to press for a direction under s 128(5) that Chatto answer questions, even though the answers may incriminate him. If the judge resolved that the interests of justice required that Chatto give the evidence he could have required Chatto to do so. If the judge so required he was bound to cause Chatto to be given a certificate in respect of the incriminating evidence. 203. The judge took the view that the interests of justice, which clearly required the unreliability and dishonesty of Chatto, a very important witness for the Crown, to be placed before the jury, would be sufficiently achieved if he were asked questions about McIvor's presence and role and he declined to answer them on the ground that the answers would incriminate him. The jury would also have the benefit of the evidence given by Chatto at the trial, the terms of his statement as to McIvor and the answers he gave at the committal proceedings as to McIvor's presence and role. The contrast was stark. 204. The judge was reluctant to require Chatto to give answers which would have been self-incriminating when there was an alternative which, in his opinion, equally served the interests of justice. It was reasonably open to the judge to take such an approach. 205. In his closing speech the prosecutor (T559-560) submitted that Chatto was a significant witness for the Crown, and a compelling witness who described events as they occurred. The prosecutor reminded the jury of the view they had had of Chatto's cell and what could be seen from it and the sounds which Chatto said he had heard. The prosecutor told the jury (T560) that they obviously had to consider his evidence with the caution that he was a prisoner. The prosecutor noted that the appellants had challenged Chatto's evidence in various ways (T560 and T563). The prosecutor invited the jury, by way of counter attack, to consider the lies told by the appellants and addressed on these. The prosecutor did not seek in his address to deal with the false aspects of Chatto's statement and committal evidence. 206. Hore's counsel, in the course of a lengthy final address, dealt in detail with the evidence of Chatto, whom counsel described as probably the most important witness for the Crown. Hore's counsel said, amongst other things: (T577-578) "…it is obvious Mr Chatto at some stage was attempting to get Mr McIvor to corroborate the fact that McIvor was in the cell when he made the observations he says he made. On seven occasions I attempted to get McIvor to say that but on seven occasions he said he wouldn't answer that on the grounds it would incriminate him. You can see it is clear he was caught telling an untruth and he is not proposing to say anything about that. To use American parlance he 'takes the Fifth'. He is asked many times on oath to answer questions, he won't answer them. That doesn't mean because even if you found he lied about the presence of McIvor you have to automatically reject the totality of his evidence, it does not mean that, but it gives it a certain smell. We have got a man, got a man. You will be told by his Honour that when you are dealing with the evidence of persons who are termed to be prison informers there are special directions of law to be given to you about how you deal with their evidence. I won't go through those, that is his Honour's province. Suffice to say in general terms he will give you a warning. The Crown's told you about that; you have to be very careful to accept that sort of evidence. But here you have the additional problem of a man who I submit to you has clearly lied to the police and at the lower court about the presence of someone to corroborate him, Mr McIvor, so not only do you have the general warning, the additional caution, then you have the problem of identification which again must be viewed carefully." 207. Fyffe's counsel in his final address told the jury that before they could make a finding of guilt they had to be able to rely on Chatto's evidence (T601). Counsel submitted that they could not rely on Chatto's evidence as he was not truthful. Counsel illustrated his point by contrasting evidence given by Chatto at the trial and at the committal proceedings (T602). A little later in his address counsel subjected Chatto's evidence to critical analysis. He contended that Chatto had made up a story to avoid becoming a suspect. At T607-608 counsel told the jury: "Mr McIvor refuses to answer questions on the ground the answer to those questions may incriminate him so there are no answers to any questions from Mr McIvor. There isn't any evidence from Mr McIvor he was present in the cell at the time Mr Chatto makes these observations, a matter Mr Chatto made clear in his statement was the truth and a matter he claimed, continued to claim to be true at the committal proceedings, and you have had evidence before you that that is the case. Now, Mr Chatto in this Court in his evidence in chief does not say a word about the presence of Mr McIvor but what he said was he gave evidence to the police in his statement that had Mr McIvor present and he gave evidence at the committal that said Mr McIvor was present, and every time what he said about it he was asked at the committal to say something about McIvor he refused to give evidence about that and there was, there were questions and answers at committal, that is what was said, Mr McIvor was walking between the beds. Not a word about it here. Mr Chatto needed someone to corroborate his story. Not because he thought he wouldn't be believed not because he thought: 'I am a prison witness and no one would believe me so I need some corroboration', he needed someone because [he] was an informer, he needed an alibi, he needed someone to be a suspect, he needed someone to come along and say he was telling the truth about this story he had made up. That is a problem with his evidence that is enormous." 208. Counsel for Fyffe returned to Chatto's evidence the following morning and took the jury to the evidence which Chatto had given at the trial and his prior inconsistent statement to the police about the presence and role of McIvor. Counsel dwelt on the refusal of Chatto to answer questions in relation to details contained in his statement as to McIvor. Counsel undertook a similar exercise in relation to the evidence Chatto gave as to McIvor in the committal proceedings. 209. Counsel submitted that it was very telling that Chatto was in the past claiming McIvor was present. Chatto wanted corroboration of his being in his cell at the time of the killing. Counsel stressed that there was a danger that Chatto was making up a story in circumstances where he wanted any investigation to go away from himself. Counsel concluded this part of his address thus (T614): "So here is a man who I submit to you not only is audacious enough to make up a story to suggest that he had become aware there were suspects, people who were coming out from someone (sic) here under the awning being seen but continuing in that story with the hope of getting some advantage for himself to use it hoping in part it may get him home early. All those matters are significant in relation to whether Mr Chatto is a credible witness, whether beyond reasonable doubt you can believe him, and in this case it is, that is highly significant because in relation to the case against Mr Fyffe, the evidence of Mr Chatto is central. I suggest to you it is essential you believe the evidence of Mr Chatto and it has been put to you you can believe it in part, you don't have to believe the whole of his evidence. Well, that is true, you can use part of someone's evidence but if the person seems to you to be fundamentally unreliable, what part of their evidence would you use in relation to Mr Chatto? I would suggest you would not use his evidence, not to found a verdict of guilty in relation to murder as far as Mr Fyffe is concerned. That evidence just isn't good enough quality. It isn't cogent, it isn't reliable." 210. What appears so strongly from the addresses of counsel is that Chatto had not told the truth as to the presence and role of McIvor and that the remainder of Chatto's evidence needed to be scrutinised very carefully. 211. The judge (at SU76-119) dealt with Chatto's evidence at length and read extracts from that evidence to the jury. In the course of doing so he reminded the jury that he had warned Chatto that he was not obliged to answer any question if the answer would tend to incriminate him. The judge reminded the jury that Chatto had refused to answer questions whether assertions he had made in his statement as to McIvor's presence and activities were true (SU96-98). 212. The judge reminded the jury that Chatto had said, when he first spoke to the police, that he wanted to tell the police what and whom he had seen. He was also hoping by assisting the police to get an early release. Chatto agreed that he was desperate to get out of gaol. 213. The judge, after contrasting Chatto's evidence at the trial and at the committal proceedings as to McIvor, remarked (SU106-107): "Now it is quite obvious to you from the way Mr Chatto selectively answered his questions and was permitted not to answer questions that he had changed his evidence. … Chatto, like anybody else, is a compellable witness obliged to answer questions. You did hear me tell him he was not obliged to answer questions if the answer would incriminate him. So you know why he did not answer certain of the questions. … if he had given them the answers might have shown that he had committed an offence." 214. The offence, the judge explained, was giving false evidence. The judge continued (at SU107-108): "… when he made his statement to police and when he gave his evidence on oath before the magistrate he was saying that when he heard what he heard and when he saw what he saw McIvor, his cell mate, was in the cell with him. In his evidence before you he was not saying anything about that and there is no evidence before you that McIvor was in the cell with Chatto. So you proceed with this case on the basis that Chatto was in the cell, whether you accept him about what he says he heard and whether you accept him about what he saw that is a matter for you … it is not open to you to find that McIvor was in the cell with him [Chatto]. McIvor was called to give evidence, said nothing about it and left the scene very quickly, you will remember. So you know from Mr Chatto's evidence and from the other evidence … that a truthful answer to the questions Mr Chatto was asked and declined to answer would have shown that he told a lie to the magistrate." 215. The judge explained (SU 108) to the jury that they would have to decide whether this was a fundamental change which required them to reject as reliable anything that Chatto said. Alternatively, they could put what he had said as to McIvor to one side if they thought he was reliable in everything else. 216. The judge told the jury that the issues raised on Chatto's evidence seemed to be these: (i) whether because of his change in what he was prepared to say about the events, the presence of McIvor, was such as to make his evidence altogether unacceptable; (ii) whether he thought he was a suspect and therefore had a motive to try and divert suspicion from himself by proving that he was somewhere e.g., in his cell and seeing people walking away from the place where he then thought that the killing had taken place; (iii) Whether Chatto hoped to obtain a benefit in making a statement to the police and giving evidence. Chatto admitted, frankly, that this was so. 217. The judge then rehearsed the arguments of the Crown in support of the acceptance of the remainder of Chatto's evidence and those of the appellants against accepting any of Chatto's evidence because of his dishonesty. They also advanced arguments as to the reliability of Chatto's evidence, that is, its accuracy. 218. In view of the way in which the judge treated the evidence of Chatto and the extensive directions which he gave as to it, particularly as it related to McIvor, the appellants could not have been better off if the judge had required Chatto to answer the questions of trial counsel for each of the appellants. The effect of what the judge told the jury was that Chatto had not told the truth in his statement and had lied on his oath to the magistrate. The judge correctly posed the correct questions for the jury's consideration and correctly emphasised that the jury had to decide whether in view of the lies about McIvor they could accept the remainder of Chatto's evidence. 219. When the judge exercised his discretion under s 128(5) of the Evidence Act 1995 he would have had in mind how he proposed to leave the matter to the jury. 220. Grounds 9, 10 and 11 of Hore and Ground 6 of Fyffe should be rejected. Hore Ground 13 (a) His Honour failed in not asking [requiring] McIvor to answer questions and/or failing to ascertain whether it was in the interests of justice to require him to do so. (b) His Honour erred in directing the jury that "there is no evidence before you that McIvor was in the cell with Chatto" and the point is it is not open to you to find that McIvor was in the cell with him (Chatto)." Fyffe Ground 7 The trial judge erred in ruling that McIvor did not have to answer questions. 221. During the trial and after the evidence of Chatto and Charlton had been given, the prosecutor announced that the Crown was not calling McIvor in its case but that he was prepared to agree to the request (from Hore's counsel) to call him. 222. McIvor was then called on the voir dire. He declined to answer the question whether he had signed a statement dated 28 March 2000 for the police on the ground that the answer may incriminate him. McIvor agreed that in March 2000 he occupied a cell with Chatto and that on 19 March 2000 he became aware that Steven Moore's body had been found. In the morning he had had a visit from his father. McIvor said that he did not know Hart or Fyffe and that he did not see anything occurring in relation to a sandstone rock on that day. He thought that at some stage, probably around 1.30pm, he returned to his cell. Chatto was there. He stayed there for "probably five minutes, 10 minutes". McIvor explained that he returned to his cell following an announcement from the gaol authorities for prisoners to return to their cells. There was a "lockdown". McIvor declined to answer whether at any stage when he was in the cell he made observations out of the cell window and whether he had a conversation with Chatto about observations made outside the cell. He refused to answer whether he had seen Chatto making observations at the window of the cell and also whether he had seen Fyffe, Hart or Hore walking in the area outside his (McIvor's) cell at some stage on 19 March 2000. He also refused to answer whether he had seen or heard the sounds as though a rock was hitting the ground. The prosecutor applied to the judge for an order compelling McIvor to answer his questions. 223. The judge commented: "…according to the Evidence Act , if it seems to me that there are reasonable grounds for Mr McIvor's having taken the objection, then I am not to require him to answer the questions I am to tell him however, that he need not give the evidence and I am to tell him what will happen if he gives the evidence, that is, that he will get a certificate and what the effect of the certificate is." 224. The Crown asked the judge to give consideration to the process described in s 128(2). The judge's statement of the position was not complete. It did not refer to s 128(5) or the substance of that provision under which the Court may require the witness to give the evidence if the interests of justice so require. Section 128(2) is subject to s 128(5). 225. The judge confirmed with McIvor that he had refused to answer some questions on the ground of self incrimination and continued: "… I have already been informed something about the statement that you made on 28 March 2000 and the position you now take with respect to it and I know that you have had a conference with the Crown and I know that because of those matters the Crown was not intending to call you in the trial … … there are reasonable grounds for you claiming that privilege and I therefore do what the law requires me to do, that is, I tell you that you need not give the evidence if you do not want to do so. …" 226. The judge explained the position further. 227. The Crown accepted the judge's ruling. The judge does not appear to have considered whether under s 128(5) it was in the interests of justice to require McIvor to answer questions. 228. Counsel for Fyffe told the judge that he did not require "this witness". Counsel for Hore said that he did not want McIvor on the voir dire, but he did want him in the trial. 229. The jury returned and in their presence the prosecutor, after eliciting McIvor's name and address, announced, "this witness is called as a result of requests from … defence counsel … I have no further questions." 230. Hore's counsel cross-examined McIvor. After McIvor agreed that on 19 March 2000 he shared a cell with Chatto, McIvor hesitated about answering the next question. The judge explained to McIvor that if he objected to giving evidence on the ground of self-incrimination he need not do so (T174). The judge held that there were reasonable grounds on which McIvor's objection of self-incrimination was based and that he need not answer the question if he did not wish to do so. McIvor refused to answer that question,. McIvor stated that he did not want to answer any questions concerning what he did or did not do with Chatto on 19 March 2000. No party at the trial asked the judge to exercise his powers under s 128(5). 231. In the light of the way the judge left the Chatto/McIvor issue to the jury neither Hore nor Fyffe suffered any disadvantage of consequence in the judge not requiring McIvor to answer questions. Chatto's lie and McIvor's lie and their dishonest illegal conduct were plain. Neither counsel for the appellants asked the judge to require McIvor to answer questions. Counsel for Fyffe did not require McIvor to be called. 232. Hore Ground 13 and Fyffe Ground 7 should be rejected. Hore Ground 12 His Honour erred in law in misdirecting and/or failing to direct the jury adequately and/or properly in respect of the evidence of Bond, [AH], Charlton and especially as required by section 165 of the Evidence Act 1995 and/or in accordance with the standards established by Pollitt v The Queen (1993) 174 CLR 558 and followed by R v Clough (1992) 28 NSWLR 396. Fyffe Ground 8 The trial judge erred in admitting the evidence of AH. Fyffe Ground 9 The trial judge erred in permitting the witness [AH] to refresh his memory from his statement. Fyffe Ground 10 The trial judge misdirected the jury as to [AH's] evidence and its effect. 233. The judge dealt with the evidence of the witnesses who were confined in the prison at the time of the killing. Chatto, AH and Bond had been released by the time they gave evidence at the trial. Charlton was still in gaol at the time. 234. The judge treated Chatto, AH, Bond and Charlton as prison informers. After giving the jury a series of warnings as to the unreliability of the evidence of prison informers the judge pointed out the difficulties with the evidence of each. 235. The judge (SU30-31) said: "The experience of the Court demonstrates that evidence from prison informers is potentially unreliable because such witnesses are, first, likely to be of bad character and motivated to fabricate evidence against an accused by the perception of a likely benefit in their sentence, or by reason of pressure put upon them in the prison system that may not be apparent to the jury." 236. The judge then explained "the pressure put upon them by the prison system" and the benefits which could flow to a prisoner who assisted the authorities in a formal way. The judge also instructed the jury that because "the evidence of a prison informer is potentially unreliable, it is necessary for you to be cautious about relying on the evidence and to scrutinise it very carefully". 237. The judge reviewed the evidence of Bond from SU36 to SU45 and explained to the jury that assisting the police can result in a lesser sentence or the Parole Board releasing a prisoner on early parole. The judge continued to review the evidence of Bond from SU47 to SU48. From SU48 to SU52 the judge summarised the arguments of the Crown and the arguments of the appellants as to Bond's evidence. The review made it plain that Bond had lied, and that the jury had to decide whether they could accept any of his evidence. 238. The judge reviewed the evidence of AH from SU54 to SU57 and reminded the jury that after a series of answers (SU64), where he could not recall the position he was (SU65) permitted to look at his statement. Part of his evidence dealt with identification and that led to the judge giving the jury a special warning about evidence of identification (SU67-70) and the need for extreme caution before accepting such evidence. The judge pointed to the weaknesses in the identification evidence of AH (SU70-71). The judge summarised the appellants' arguments and those of the Crown on AH's evidence and his alleged identification. 239. As earlier mentioned the judge reviewed the evidence of Chatto. I have earlier referred to portions of the evidence, especially as it related to McIvor and I will not repeat what has earlier been written. The judge also summarised the arguments of the appellants and the Crown as to Chatto's evidence. Inter alia, the judge pointed out that the jury had to consider and evaluate the quality of the view Chatto had from his cell. The jury had had a view of Chatto's cell and were aware what could be seen from it. 240. Somewhat later in the summing-up the judge dealt with evidence from Charlton and Bond as it affected Fyffe. At SU151-152 the judge pointed out that no problem as to identification arose on Charlton's evidence as he and Fyffe shared a cell. The judge indicated that a different problem arose as to the evidence given by Charlton, that is, statements allegedly made by an accused to other inmates inferring that he was guilty of killing the deceased. 241. The judge directed the jury (SU152) that if a prison informer witness gave evidence of such statements by the accused there arose an even greater need for caution than that which arises because he is a prison informer witness. The judge continued: "Mr Charlton and Mr Bond gave evidence of things said by Mr Fyffe which may show that he said what he said because he knew that he was guilty. Such statements are easy to fabricate and hard to test. Such evidence is not of a permanent nature like, for example, a signed document or a photograph. For those reasons, it is, as I say, easy to make up and very difficult to refute. When a prison informer gives evidence of statements like these, it is necessary for me to warn you that, in the absence of substantial confirmation by independent evidence that each such thing was said, it is dangerous to convict the accused on that evidence. Here, I might say, there is no supporting evidence to show that what Mr Fyffe is said to have said to Mr Charlton was said. There is no supporting evidence to show that what Mr Fyffe is said to have said to Mr Bond was said. I have already explained why this is so." 242. The judge then reviewed the evidence of Charlton setting out the various statements allegedly made by Fyffe to Charlton and their context. These included Fyffe saying he did not want the deceased in their cell (i.e., the one shared by Fyffe and Charlton), a group of statements on the afternoon of the killing, namely, "If anybody asks you just tell them I was asleep"; "He's dead, otherwise they [the ambulance officers] would have brought him back" and statements made on the following day (20 March) "Yeah. He got his right whack"; "if they came to get him [Fyffe] would I pack his gear?"; "He [Bond] is a dog and he knows too much". 243. The judge proceeded to deal with three alleged lies of Fyffe relied on by the Crown. 244. The judge passed to the evidence of Bond before the magistrate and his statement to the effect "I went up to see Bill Charlton – his eyes were wide open. Stan said to me 'don't say anything about the rock because I don't need the dramas'." The judge directed the jury to treat this evidence of Bond with the same caution they treated the evidence of Charlton attributing statements to Fyffe. 245. The warnings given by the judge were comprehensive. Not only did he give warnings required by s 165 of the Evidence Act 1995 and those which were necessary in terms of Pollitt v The Queen (1993) 174 CLR 558 and Clough (1992) 28 NSWLR 396, but he reviewed the evidence in detail pointing to its weaknesses and inadequacies. Ground 12 of Hore lacks substance having regard to the terms of the summing-up. 246. Fyffe contended that the evidence of AH anticipated from his statement and his evidence on the voir dire should never have been admitted at Fyffe's trial in the first place. His evidence at the trial was significantly weaker than anticipated from the sources mentioned. It was contended by Fyffe that AH's evidence at the trial was so weak and so vague that, having been admitted, the judge should have withdrawn it from the jury's consideration. It had virtually no probative effect and could only give rise to illicit prejudice. 247. AH stated that when he was individually interviewed by the police on the day after the killing he indicated what he had seen. The police interviewed him at length on 31 March 2000 and he made a statement in which he said that he had seen three men come from the area of C Block, one go into B Block and come out with another man (the deceased) in an apparently friendly manner and walk around one side of B Block with the other two men walking around the other side of B Block. About five or ten minutes later three of the four men (that is excluding the deceased) came back from the other side of B Block. They were patting each other on the back and having a laugh. AH said in his statement that he saw another fellow run around from the same side of B Block, looking shocked. AH said that he and his cell mate walked around the same side of B Block. He saw the deceased lying in a pool of blood near the boxing bag. 248. In his statement AH provided these descriptions: "The guy I seen walking around the wing with his arm over the shoulder of guy who was killed is long blackish, brownish hair with grey in it, down to about his shoulders, all messy, his (sic) g ot broken teeth, he was a little bit taller than the guy who was killed, normal build. He was wearing green clothes and I think running shoes. The guys that walked around the other side I would describe one as taller than the other guy, medium build, moustache going down the side of his mouth, broken teeth, a fair few tattoos, short brown hair, he was wearing greens, shorts and singlet and sports shoes, the third guy was very big build, giant, wavy messy brownish hair down to his shoulders, wearing greens and shoes I can't remember the sort. He was the one the others were patting on the back. They all seemed happy and he seemed the happiest. They were the guys who were taken out of the Wing by the MEU. The big guy was taken that night and the others the next day." 249. AH did not give evidence in the committal proceedings and was thus the subject of a voir dire examination on 6 and 7 May 2002. At an early stage of that examination AH said that the contents of the statement were true at the time he signed it. In cross-examination he agreed that it was on 31 March 2000 that he first recorded in writing the description of those men. He could not remember exactly what night or day the men were removed. He thought that the "big guy" was removed on the night of 20 March 2000 and the other two on the next day. 250. This passage appears (at T14) in the voir dire cross-examination of AH by Fyffe's counsel: "Q. When you came to give your statement you offered a description based on having seen those men in the presence of the MEU officers. A. No, not because of that, because I knew exactly who they were, not because of that, just because they took them. I saw them, they took them, that's all they did." 251. AH agreed that when he came to make his statement he knew that these were men who were suspected of being involved in a killing that had occurred on the wing. 252. In re-examination on the voir dire AH said that he had seen those three men every day before 19 March 2000 but he did not associate with them. 253. Not surprisingly, in the light of the terms of the statement of AH and his evidence on the voir dire, the judge ruled that AH's evidence was admissible. 254. On 9 May 2002, during the trial, after AH had confirmed that he did not want to give evidence the judge stood him down so he could obtain legal advice. He was recalled on 13 May 2002, having seen a solicitor. 255. AH was examined in chief. He said that on 19 March 2000 he and his cell mate were sitting outside B Block. He had seen the deceased about the gaol prior to this day. He saw the deceased coming out the front of B Block with another guy whose name he did not know but whom he had seen in Silverwater Gaol a few times. The deceased and this other guy were very close to each other. 256. Prior to this he had seen this other guy with two other men coming from somewhere near C Block. They travelled together until they got to B Block. When they arrived at B Block one of them went inside. This was the man who subsequently came out of B Block with the deceased. The other two men went around the other side of B Block. AH said that he could not recall what the other two men looked like and that he could not recognise those men. 257. AH said that as some men came from the back of B Block and were walking back towards C Block he saw that they were the three men he had seen earlier, excluding the deceased. These three men were talking and walking. They were laughing and being friendly and patting each other. He could not recall who was doing the patting. AH said that after these three men had come around the side of B Block and moved off towards C Block, someone came running from the back of B Block. This was a minute or two later. AH said that he and his friend (cell mate) went around the back of B Block and saw someone on the floor with blood all over him. He did not recognise who was on he ground as he did not take a good close look. He went straight back to B Block. An announcement was made cancelling visits. 258. He said that he did not see any of the three men after this. There was a lockdown. That night he became aware an inmate had died. He said that he did not see any of these three men again around the prison. He said that over the next few days MEU officers (emergency officers) were around and he saw them take other prisoners away. He did not remember how many prisoners were so taken. He gave this evidence: "Q. Do you have any recollection as to ever seeing the three men that you spoke to us about earlier, man one and men three and four, during this period of time? A. During what period of time? Q. After the death of Mr Moore? A. Well, I seen I think it was one of them taken out by the MEU. Q. And when you say 'one of them', can you just describe that man for us? A. I can't describe him. It's been so long." and "Q. Can you tell us if it was man one or man three and four [Fyffe and Hore] A. It was one of man three and four … Q. Can you recall any detail of the man that you referred to? A. It was so long I don't remember." 259. AH said that he had seen the man taken away by MEU officers on more than a few occasions around the gaol "probably a month or something" prior to the deceased's death. He did not know the name or nickname of the man he saw taken away by the MEU officers or what cell he occupied. 260. AH said he had seen man one (the man who had been with the deceased) and the man who had been with the man removed by the MEU officers probably every day. AH said he did not know the name of man one. He had seen him outside Blocks A, B, and C. AH had also seen him in B Block now and then. AH said that he did not recall seeing him after the deceased's death. 261. AH said that as to the man who was either three or four being other than the man taken by the MEU officers, he saw that man roughly 30 times around the gaol and now and then in B Block. AH did not know that man's name or nickname. AH said that he was not able to describe that man. He no longer recollected his features or his height. He thought that man was of "just normal build". He did not recall the colour of that man's hair, its length and the extent of hair coverage. He did not have any recollection of any of that man's facial features because "it's been so long". He never saw this man after 18 March 2000. He said that his recollection was "heaps better" when he made his statement. AH said that he was not able to recollect what the first man and the third man (presumably Hart and Fyffe) looked like. 262. AH said that when he made his statement he provided a description to the police. Over the strong objections of counsel for Hore the judge permitted AH to be shown his statement to the police and to read paragraph 9. 263. AH was asked whether paragraph 9 (quoted earlier) assisted him to recall the descriptions of these three men. AH replied, "Not exactly". He said it did not assist him to recall with any exactitude how these men used to look. 264. The effect of AH's evidence was that while he could recall the features of each of the three men as mentioned in his statement he could no longer picture each man. Of men three and four he recalled that one of them was a very big man but did not recall any of his other features. It was the big man whom he recalled. AH said he had no recollection of seeing man one or the man with the bigger man after the deceased's death. 265. The prosecutor applied to cross-examine AH pursuant to s 38 of the Evidence Act 1995. It was strongly opposed by Fyffe's counsel who stressed the inherent unreliability of AH's evidence and that it was an identification upon which reliance should not be placed. The judge refused the prosecution application to cross-examine AH. 266. In his closing speech the prosecutor relied on the evidence of AH, the evidence of Chatto and the other evidence to establish that Hore was one of the participants (T546). While the prosecutor relied on the evidence of AH as to the movement of the three men immediately before and after the killing, it was not suggested that AH's evidence amounted to evidence of identification of Fyffe. The prosecutor relied on the other evidence to identify Fyffe. That included the evidence of Chatto, Charlton and Bond. The evidence of AH has to be taken in conjunction with the evidence of Chatto and the other evidence. The movements of the three men both before and after the killing point strongly to a team effort. AH was the last person to see the deceased alive. The prosecutor attached some importance to AH's evidence, pointing out that when considered with the other evidence it established three men walking together towards B Block and a short time later, after the killing, those same three men together emerging from the eastern end of B Block happy and engaging in some slapping or patting on the back. Two of those men were at the site of the murder. 267. The judge (SU67), when introducing his warnings as to the evidence of identification, commenced with the comment "insofar as AH purports to identify anyone" and later (SU70) expressed doubts whether the evidence of AH could be described as identification of anyone. The judge commented that AH's recollection of the events was not good and that "even after he refreshed his memory from his statement he gave only a general description in the terms of general size, hair of the person he saw". The judge also warned the jury of the possible displacement effect arising from AH having seen a man or men removed from the wing. 268. There was no basis for the judge to withdraw the evidence of AH. It told of the movements and disposition of the three men immediately before and after the killing and linked in with the evidence of Chatto. It also told of the deceased immediately before his death being escorted from B Block and around its western end. The jury were alerted to the considerable questions attending AH's evidence of identification if it could be so described. The judge reminded the jury that it was never put to AH that he was lying. Counsel for Fyffe at the trial sought no further directions on these points. 269. Fyffe's counsel submitted that, although it seemed to be true, the judge should not have told the jury that AH did not want to give evidence, as it was irrelevant. AH was concerned about reprisals to family members if he gave evidence. A reluctant witness may not wish to tell all that he has seen and heard. It may assist in assessing the evidence of a witness. 270. Fyffe's counsel contended that the judge in his summary left out significant pieces of the evidence, namely: (i) at SU 59 the judge left out the balance of the answer given at 257.1 and the next two questions and answers. (ii) at SU60 the judge left out Q/A T 258 53/54 (iii) at SU61 the judge left out Q/A 261.14 and .36 (iv) at SU62 the judge left out Q/A 262.48 (v) at SU63 the judge left out Q/A 265.12 (vi) at SU64 the judge left out Q/A 267.1 (vii) at SU65 the judge left out Q/A T268.29-50 (viii) at SU66 the judge left out Q/A 272.47-58 (ix) at SU 66/7 the judge left out Q/A 276.47-53 and Q/A 280.4-14 271. Fyffe's counsel submitted that the collective effect of the passages not referred to was to strengthen the apparent effect of AH's evidence. That puts the matter at too high a level. 272. The judge was only endeavouring to give a summary of AH's evidence. The summary covers the point being made by AH that because of the lapse of time he was not able to recall much of the detail of the men and that while he had a general recollection of the men and events he could not now (over two years later) identify them. The judge's review of the evidence of AH and his comments raised the question whether AH's evidence could be classed correctly as identification evidence. 273. The judge gave the jury the usual instructions (SU8) that it was their opinion as to the evidence that mattered. He also summarised the submissions of the parties as to AH's evidence 274. Fyffe pointed out that the judge had incorrectly summarised the evidence of AH when in apparent reference to Hore and Fyffe by AH the judge stated [AH] "said individually of the two men that they both had messy hair and broken teeth". AH said that two men being the first man (i.e. the one with the deceased) and the man with the big man (Hore) had "messy hair and broken teeth, few broken teeth" (T271). This was said immediately before the morning adjournment. Although counsel raised other matters with the judge immediately, this matter was not raised. The judge had read the evidence from T271 earlier in his summing-up (SU65) so that everyone knew what the judge meant. This point is of no consequence. 275. Fyffe submitted that the judge should have reminded the jury that AH agreed that he did not make any observations of what the men looked like because there was no reason to (T277). The judge did remind the jury of this evidence (SU66). He did not refer to AH's earlier answer that the reason why the movements of the two men (men 3 and 4) towards the visitor's gatehouse and the eastern end of B Block) attracted attention was that it was the only thing happening around AH and his cell mate at the time. 276. Fyffe also submitted that the judge should have drawn to the jury's attention that the description given by AH in no way matched that given by Chatto and insofar as that witness (and the Crown) claimed that the other man was bigger, flatly contradicted him and that AH made no observations of seeing Chatto either leave or return to B Block. At SU 65 the judge set out AH's description of men 3 and 4. AH said one of them was a very big man and that there was a big difference in height between men 3 and 4. AH could not remember who was the taller. The evidence of AH suggests that his recollection of the comparative sizes and features of men 3 and 4 was fairly general. He recalled that one of them was a big man. Chatto was more aware of the physical size and features of Hore and Fyffe. He described Hore as shorter than Fyffe but with a stocky build. Fyffe was taller than Hore but Fyffe had a medium to thin build. Chatto's descriptions were contained in the evidence quoted by the judge at SU88. Thus, the judge in his summing-up reminded the jury of the evidence of AH and Chatto as to the size and features of both Hore and Fyffe. Inspector Jenkins described Hore as "a very big man, very tall and muscular" (about 6 feet 2 inches) and Fyffe as having "a much slighter build". Inspector Jenkins said that Fyffe was quite a tall man, maybe 6 feet 1 inch, 6 feet. It had been a while since he had seen him. 277. Fyffe complained that the judge did not refer to AH having made no observations of seeing Chatto either leave or return to B Block. This was not a matter which the judge was required to mention in his summing-up. There was evidence of other persons having gone around to the rear of B Block. 278. Appeal Grounds 8, 9, and 10 of Fyffe should be rejected. Fyffe Ground 11 The trial judge erred in inviting the jury to make a comparison with the accused. 279. Fyffe complained that these directions should not have been given. "I direct you to take into account when assessing the evidence of any of these inmates who you may think identifies either of the accused …" and "… also in so far as [AH] purports to identify (SU67) …" [AH] "gave only a general description in terms of general size, hair of the person he saw you might think that the description of teeth however is something that might be more exact. (SU71)…" "… if you thought that there might have been some description there [in the evidence of AH]" [the prosecutor] "says the reference to broken teeth is to Mr Fyffe and he says you will derive from [AH's] evidence support for the proposition that the third and fourth men were Mr Hore and Mr Fyffe." 280. It was submitted that descriptions were vague and very general and lacking in probative detail. 281. Fyffe pointed out that there was no evidence of how many prisoners in gaol had broken or decayed teeth and submitted that no adequate comparison could be made even in terms of probability. Fyffe submitted that the jury was likely to compare the descriptions given with the accused they saw in the dock. The attention of the jury should have been drawn to the differing descriptions given by Chatto and AH. 282. The judge had given the jury both a general and a detailed warning as to identification evidence and directed them to exercise caution. The jury had the benefit of seeing Hore and Fyffe over a number of weeks. They also had the benefit of the descriptions of Inspector Jenkins of Hart, the deceased, Hore and Fyffe and his observation that Hore seemed a little smaller at the trial than he had in March 2000. The jury were entitled to rely on this evidence, the evidence of Chatto and the other evidence. The strength of the Crown case lay in the combination of the evidence given by the witnesses. The points being raised now were not taken at the trial. Counsel for Fyffe made no objection to the judge's directions as to the care they should exercise before accepting any of the possible identifications. The overall impression left by the judge's directions was that AH's evidence, while very useful, was not particularly strong on some of the identification aspects. 283. Ground 11 of Fyffe should be rejected. Fyffe Ground 12 The judge erred in his summary of Bond's evidence. 284. The errors alleged include (a) Bond apparently knew Fyffe well (SU120). Bond had been the cell mate of the deceased for about two weeks in Cell 75. Prior to this he had shared a cell with Hart. Fyffe and Hart occupied Cell 71. Both were in wing B1. Bond recalled that Fyffe had passed him a couple of times on Sunday 19 March 2000 prior to the deceased's death (T204). From the cross-examination of Bond by the Crown based on the evidence Bond gave at the committal proceedings, it was also apparent that Bond knew Fyffe well. That does not mean that they were friends. This complaint is without merit. (b) On the occasion (when Fyffe allegedly picked up a rock bigger than the size of a football and came running up to Hart) he [Bond] heard Fyffe speak to Hart (SU120). The words allegedly uttered were "Come on John let's pass this like a football, like we did yesterday." The judge simply referred to Bond hearing Fyffe speaking to Hart. That is what Bond said at the committal proceedings. It was not suggested that those relatively few words amounted to an identification on their own. (c) The whole description necessarily requires that he had the two men under observation for quite a few minutes (SU120). In the context the judge was speaking of the time Hart came up to Bond at Heartbreak Hill and spoke to him, a man (allegedly Fyffe) coming up from behind Bond's right hand side, the alleged uttering of the words by the men, and Hart and the man running off passing the rock between them and disappearing behind B Block. It could be inferred that this took a few minutes. 285. Complaints (b) and (c) lack merit. The judge was putting the case for relying on that evidence by way of identification of Fyffe. The judge immediately pointed out that Bond said he had not seen the man's face. The judge suggested that the jury might think that the question which really arose was not whether Bond was an accurate observer, but whether he was lying. Fyffe Ground 13 The trial judge erred in his further directions re Jenkins' evidence. 286. During the summing-up the jury sent the judge this note (SU122): "Your summing-up indicated that no evidence was presented that indicated Chatto attempted to make eye contact with police on day of offence. Inspector Jenkins' evidence indicated that he did make eye contact with Chatto on this day and can this be confirmed." 287. The judge told the jury that the first sentence of the note did not accurately summarise what he said in the summing-up and said: "What I said in the summing-up was that the evidence shows that Chatto did such a thing but there was no evidence that any police officer had seen him do such a thing." 288. The judge then read excerpts from the evidence of Chatto, Inspector Jenkins and Det Berenger. Chatto's evidence was that he indicated to a police officer by pointing to his eye when standing at the window of his cell (Cell 57). Inspector Jenkins having been told something by Det Inspector Leonard, looked up discreetly to a cell window on the first level of B Block which overlooked the awning and saw two persons inside the cell near the window. He did not know the cell number at the time but believed it was Cell 56. 289. Det Berenger (who was with Inspector Jenkins and heard what Det Inspector Leonard said) also looked up discreetly and saw two persons at the window of a cell looking out on to the crime scene. That cell overlooked the awning. The jury were reminded that Cells 56 and 57 adjoined. 290. The judge told the jury it was possible that the police officers were speaking about Cell 57 and that Inspector Jenkins' belief that it was Cell 56 was mistaken. 291. The judge told the jury that that was where the evidence was left, adding: "But if you think that what is being described there is some reaction to what Mr Chatto said he did, then it does provide support for Mr Chatto." 292. The judge's response to the jury's question was unobjectionable. The critical matters are that Chatto gave an indication and Det Inspector Leonard told Inspector Jenkins and Det Berenger. Each looked up discreetly and saw two men by the window of the cell which overlooked the awning. It was reasonably open to the jury to regard the actions of Insp Jenkins and Det Berenger as a consequence of Chatto's initial indication. 293. Fyffe Ground 13 should be rejected. Hore Ground 8 The verdict of the jury should be set aside on the ground that [it] is unreasonable or cannot be supported having regard to the evidence or that it is unsafe and unsatisfactory giving rise to a miscarriage of justice. Fyffe Ground 15 The verdict of the jury was unsafe. 294. In support of his Ground 8 Hore relied on the submissions advanced in support of Grounds 1, 1A, 2, 3, 6, 12 and 13. Hore emphasised that the critical evidence in the Crown case was given by fellow prisoners, albeit that three of them, Chatto, AH and Bond were not in prison at the time of the trial. There was no evidence of any of them having received a benefit for their assistance to the authorities. 295. Hore contended that the evidence of each of them and that of Charlton was patently unreliable. 296. Fyffe repeated his submission that there was no evidence of a common enterprise. 297. Fyffe also contended that the evidence of each of the prison witnesses was so unsatisfactory that a reasonable jury correctly instructed on the evidence must have had a reasonable doubt as to his guilt. 298. Fyffe contended that Chatto's evidence was more than usually dangerous, unreliable and warranting disbelief. Chatto had undoubtedly lied about McIvor being present in his cell at the same time he claimed to have made the vital observations. Chatto had apparently prevailed on McIvor to give an initial lying statement supporting Chatto. Chatto's claims could not be adequately explored or verified. 299. In a series of submissions Fyffe claimed it was unlikely that Chatto heard the sounds he claimed as he was watching a motor sport on TV with the sound not at maximum level, but loud. Chatto was uncertain as to the direction from which the sounds came. He did not see the appellants actually walk out from under the awning but as they moved away from the awning. Chatto was unable to describe the other persons he had seen look around the corner of B Block. Fyffe submitted that Chatto's opportunities to make observations and recognise him were very limited and that Chatto was unable to identify him. Chatto had limited prior knowledge of Fyffe. 300. Fyffe further submitted that although Chatto professed to recognise two persons, his identification of him (Fyffe) was by cell number. He did not know his name (T90). Chatto said of the second man who walked away, "I didn't really know of him, no. I just sort of know by face and appearance". Fyffe submitted that Chatto described him only by association with his cell. Fyffe's submissions devoted attention to the evidence Chatto gave at T88-94. 301. Chatto saw the faces of the appellants from a "sort of top view". He could see the build of the two men and readily recognized who they were. He recognized the first man coming away from the awning as "Horse". He was wearing a faded green T-shirt. Chatto said that when he saw the two men he automatically knew who they were. Chatto insisted that he recognized the second man (Fyffe). 302. Chatto said he had never come into contact with Hore, but had seen him around on other occasions over a few weeks. It wasn't long. He had seen the second man less than he had seen Hore. Chatto had seen Fyffe around B1 Block. His recollection was that Hore occupied Cell 72 as a "one out". The second man occupied Cell 70 with Old Bill (Charlton). Chatto described Hore as shorter than the second man but with a stocky build and described his hair. He described the second man as taller than Hore but with a medium to thin build. Chatto claimed he knew the second man's face and to be 100 per cent sure of his identification. 303. From being in the same wing Chatto had ample opportunity to come to know the physical features of the appellants and to recognize them. He knew in which cell each appellant was located and he had come to know by virtual daily seeing each of them what each looked like. Fyffe has dissected the evidence of Chatto but his submissions and criticism fail to make adequate allowance for the recognition that comes from daily living in the same wing. It was open to the jury, acting reasonably, to accept Chatto's identification of each of the appellants as they walked away from the awning. 304. Fyffe relied on a number of other matters which he submitted should have caused the jury to doubt Chatto, including: (i) he was hoping to get the advantage for himself of an early release; (ii) although Chatto claimed to have immediately gone and examined the deceased's body he did not report this to the prison authorities; (iii) Chatto was aware before he spoke to the police that Fyffe had been taken by MEU officers from his cell as a suspect. He had seen this; (iv) Chatto was himself a potential suspect and was aware of this. He washed his shirt before he gave it to the police; (v) Chatto alleged that he spoke to another prisoner called "Kev" before returning to his (Chatto's) cell; he was unable to further identify him. 305. Chatto made no secret of his desire to obtain an early release. He claimed that he was distressed by the murder of the deceased and felt this could not be allowed to pass. He initially adopted the course of not becoming involved and thus did not report the killing. Chatto indicated to the police on the night of the killing that he had seen some of the relevant events and on the following day was interviewed by the police. His formal statement was made on 22 March 2000 at a police station. Chatto was not regarded by the police as a suspect, although at an early stage he may have feared that he would be. Chatto said that he did not think that he was a suspect. The jury was aware of all these matters. Much depended on their assessment of Chatto, whose evidence the judge, in his remarks on sentence, described as impressive. 306. Fyffe complained that the judge erroneously referred with apparent approval to a Crown argument that Dr Hulewicz supported some evidence given by Chatto. Chatto spoke of hearing a number of thuds, "may be about three, could have been four". At T406 Dr Hulewicz said there was definitely one blow from the rock striking the side of the head. It was impossible to say whether there was one or more than one. Dr Hulewicz said it was possible to strike the head "once, a second time, a third time, a fourth time". The Crown contended that Chatto hearing three or four sounds was entirely consistent with the evidence of Dr Hulewicz. That was not an erroneous statement, but it was not apowerful argument. The judge did not indicate his approval or disapproval of the argument. He summarised it. 307. Fyffe further complained that the judge (SU119) referred with evident approval to the argument of the Crown that Chatto's "identification consisted of a recognition of people whose names he well knew so that two seconds in a case like that would probably be a long time." Chatto did not seem to know Fyffe's name. However he knew Hore by his nickname of "Horse". Chatto did assert that he knew Hore and the other man by sight. He had seen them around wing B1. He could and did recognize them by their faces and their build. He knew which cell each occupied, including that Hore occupied a one man cell and Fyffe shared his cell. In the circumstances there was no more than a slip of the tongue of no consequence. No-one was troubled by it at the trial. It is incorrect to say that the judge referred to the argument of the Crown with evident approval. The judge was merely purporting to summarise arguments advanced by the Crown. In his remarks on sentence as to Fyffe the judge described Chatto's evidence as impressive and remarked that the jury accepted it. 308. Fyffe contended that there were a number of problems with Bond's evidence which should have caused the jury to reject it. These included: (a) He was either lying to the jury or had lied to the police when he made his statement. He told the jury that he had not told the truth in the committal proceedings and that he would be committing perjury if he told the jury that he saw Fyffe with a sandstone rock on 19 March 2000. There was no evidence from any other prisoner corroborating what he said in his statement. (b) He had been spoken to by the police on the evening of the killing and told them he did not have any relevant information. (c) He had seen Fyffe and Hart taken away before he made his statement to the police on 3 April 2000. (d) Although he had been returned to custody for breach of parole and had some other matters he was seeking an early release on parole and was aware that his statement of 3 April 2000 to the police had been sent to the Parole Board. (e) He was taking drugs daily at the time. 309. Bond sought to explain his evidence at the committal proceedings on the basis that he had read the statement before giving evidence and believed he was bound to adhere to his statement. Bond said that he was primarily concerned about the safety of his mother. Bond's evidence had to be carefully studied and very considerable caution exercised before accepting any of it. His police statement and his evidence at the committal proceedings supported that he had seen Fyffe and had a good view of him. His subsequent attempts to explain away what he said in his statement and in his evidence at the committal proceedings as to seeing Fyffe and the handling of the rock could well have been regarded as unconvincing. Bond was well aware of Fyffe as they were in the same wing. 310. Fyffe submitted that [AH] did not purport to identify him as one of three persons seen in each other's company before and after the deceased's death. It was submitted that his evidence should have been treated as irrelevant except in so far as it cast doubt on Chatto's evidence. The evidence of AH established that there were three men involved both before and after the deceased's death. It pointed to a common enterprise AH's evidence was indirect but it was not without value, especially when taken with the other evidence. 311. I have examined the whole of the evidence given at the trial and reflected upon it. I have applied the test propounded by the High Court in M v The Queen (1994) 181 CLR 487 at 493-494 and confirmed in MFA v The Queen (2002) 213 CLR 606 at 614-615 and 622-623. In both Hore's case and Fyffe's case, upon the whole of the evidence it was reasonably open to the jury to be satisfied beyond reasonable doubt as to the guilt of each of them. 312. The appeal against conviction should in each instance be dismissed. Sentence 313. The facts have been set out earlier. The judge in his remarks on sentence has provided a valuable review of the way in which the Crown case was proved and made important findings. 314. The judge was satisfied that at about 1.30pm on 19 March 2000 Fyffe and Hart took a block of sandstone slightly larger than a football and weighing more than six kilograms from the front to the back of B Block throwing it back and forth between themselves as though it were a football, to divert suspicion from themselves by appearing to be involved in innocent play. They left the block near to or in the place where the deceased was killed in preparation for the attack upon him. 315. Shortly before the deceased was killed Hore, Fyffe and Hart walked together towards B Block where they separated. Two of them (Hore and Fyffe) walked around the eastern end of the Block and went towards the back, out of sight. The other man (Hart) went into the Block and emerged some two minutes later with the deceased. They walked together in a friendly manner around the western side of B Block towards the rear and out of sight. A little later the same three men, but not the deceased, re-emerged from the back of B Block, walking along, talking, laughing and patting each other. They continued on towards C Block. Shortly afterwards the deceased was found. The sandstone block and a half brick each bore the deceased's blood. 316. The judge found that the sandstone block was dropped three or four times on to the head of the deceased as he lay on the concrete surface of the yard. The judge thought that it was possible that before the block was dropped on to the deceased's head he was felled by a blow with the half brick. A triangular laceration to the forehead 3½ centimetres in size was consistent with having been caused by a corner of the half brick. 317. The judge found that there was no evidence to show precisely when Hore entered the compact to kill the deceased, but he must have done so before he, Fyffe, Hart and the deceased walked to the back of B Block. Hore must also then have known that Fyffe and Hart had placed the sandstone block there. The judge found that Fyffe entered into the compact to kill the deceased at the latest by the time he and Hart took the sandstone block to the back of the Block. 318. The judge held that there was no evidence of who used the half brick or of who dropped the sandstone block on to the deceased's head. All that can be said about Hore and Fyffe is that each was present with the intention that the deceased should be killed and participated by either doing the act which caused death or by assisting in its commission or by encouraging another or others to do so. 319. The evidence does not establish why either Hore or Fyffe participated in the subject crime. 320. The judge had regard to s 19A of the Crimes Act 1900, ss 61 and 21 of the Crimes (Sentencing Procedure) Act 1999 and R v Harris (2000) 5 NSWLR 409 and addressed the question whether he should impose a sentence of life imprisonment or for a specified term. Hore 321. He was born on 20 November 1965. He is powerful and well built. He has a poor criminal record. During his early teenage years he was dealt with by the Children's Court for stealing. Between 1984 and 1986 he was convicted four times for stealing and like offences and robbery. In June 1987 he was released from prison on probation. On 14 December 1987 he, Ms Christine Rush (his girl friend) and another went to rob a man at his house. He took no weapon but as he entered the premises he picked up a spade and left it close at hand. They carried out the robbery. Hore killed the victim with the spade. On 29 July 1988 he was sentenced to imprisonment for life. The remarks of the trial judge (Mathews J) included these passages: "… you appeared to show some vacillation in the early stages, as to whether to proceed with this projected robbery, and you required some encouragement from your co-offender before you went back and committed the offence. However, having embarked upon it, you did so with the greatest of savagery and violence, leading ultimately to the infliction of horrible injuries on that man. You tackled him, it seems, and he went to the ground. But he was still struggling, he was kicking at you, and this was too much for you. You grabbed the spade and, it would seem from the medical evidence, you struck him on four separate occasions with different parts of it. Two blows were to the head, one of them to the back of the head. Presumably that was inflicted with a corner of the spade, for it gouged out a portion of his skull. The last and final blow was with one side of the spade, and it penetrated deep into that man's face, approximately at eye level, going three and a half centimetres into the skull according to the medical evidence. A mere statement of that final injury indicated the force with which the blows must have been inflicted, and it is little wonder in the circumstances that the jury returned the verdict it did. It was an entirely uncalled for, unwarranted attack on a defenceless man who had done nothing whatsoever to provoke it. Indeed, you said at the time that all you wanted to do was to stop him from kicking, he being already it seems on the ground at the time." 322. A concurrent sentence of 14 years penal servitude was imposed for robbery with striking. Mathews J accepted that Rush was the instigator. Barr J summarised the post sentence history of Hore thus: "25 In August 1997 the offender applied to the Court under s 13A Sentencing Act for a redetermination of his life sentence. The term imposed for the robbery had already been translated under the provisions of the Sentencing Act to allow for remissions and had expired. Before the Court was a report dated 20 June 1996 from the Serious Offenders Review Council. It showed that the offender was still classified A2, which required that he be kept in a maximum security institution subject to electronic surveillance. According to the report, antisocial tendencies had begun from the start of his incarceration. Although a number of goals were achieved under a therapeutic programme at the special care unit at Long Bay, his behaviour had deteriorated when he was pressured to communicate more. He had threatened other inmates with knives. 26 In 1991 he was placed in segregation for skylarking and fighting with other prisoners. He had tried to commit suicide by hanging. By May 1993 there was a history of suicide attempts and he was assessed as emotional, lacking the ability effectively to handle any personal crisis. He and another prisoner had been standing over inmates for items of food. 27 In May 1993 he became involved in acts of vandalism and of standing over other inmates, again in the company of another prisoner. 28 In 1994 he incurred a number of misconduct reports. Weapons capable of inflicting serious harm were found in his cell. He was moved to another prison and went on a hunger strike and cut his arm with a razor blade. 29 He was treated for depression in January 1995. In February 1995 he pleaded guilty to assaulting two female prison officers. He was found to have committed theft. In December 1995 he was found unconscious in his cell, having apparently overdosed on heroin. 30 The report concluded with the opinion that he had made little progress in qualifying for release. His behaviour had been unstable, oscillating between episodes of self-harm and aggression with violence towards others. There were prospects of some progress to a lower security classification but time would be needed to effect any substantial and long-lasting change in his attitudes and behaviour. 31 In a supplementary report of 13 March 1997 the Council referred to an incident in June 1996 in which the offender threw a cup of hot water at a prison officer. He was charged with assault and sentenced in the Local Court to two months' imprisonment. The report concluded by stating that the offender's instability had continued. He would require ongoing support and psychological assistance over a long period if he were to develop to a point at which he would be ready to return into the community." 323. On the re-determination hearing, Mr W J Taylor, a psychologist, expressed the opinion that a sense of hope that he would ultimately be released would contribute to Hore's sense of motivation to improve his own functioning. Mr Taylor pointed to Hore's age and to the experience that the patterns of rule-breaking associated with antisocial personality disorder which Hore was said to have, tended to diminish by the fourth decade of life. Mr Taylor saw signs of personality development. Sperling J accepted Mr Taylor's evidence. 324. Sperling J thought that there were a number of indicators suggesting that Hore was moving towards rehabilitation and made a number of favourable findings as to his development and progression. That judge set a minimum term of 13 years, expiring on 13 December 2000 and an additional term of 7 years. 325. On 15 November 1998 at Junee Gaol Hore went into the cell of another inmate (a small man), seized him by the throat, lifted him clear of the floor, pushed him against the concrete wall of the cell and let go. As Hore did so he pushed the victim's head against a desk or shelf, causing a deep laceration in the victim's head. When the victim was on the floor Hore kicked him a number of times in the lower back and hip. Hore left the cell and his victim. He told two other inmates that he thought that he had killed the victim. The latter sustained a deep laceration to the left side of his head. His skull was visible under the laceration. He also sustained severe bruising. Hore was sentenced to a fixed term of 12 months imprisonment commencing on 19 January 2000 and expiring on 18 January 2001 for the malicious infliction of grievous bodily harm. 326. Dr B Westmore, forensic psychiatrist, examined Hore on 7 August 2002. Hore insisted that he had no idea of the events leading up to the second homicide and maintained his innocence. Hore was in the psychiatric unit at Long Bay Prison Hospital for a total of four to five months in 1993 and 1994 as he was self-harming. Hore told Dr Westmore that he did not still have any thoughts of self-harm. He has a daughter whom he sees regularly. She lives with her grandparents. Dr Westmore detected no psychotic features and thought that Hore's early contact with the criminal justice system suggested that he had an antisocial personality disorder or certainly traits of that type. 327. Dr Westmore concluded: "The second homicide is obviously of major concern and of some significance regarding Mr Hore's personality characteristics and development. I do note however he is maintaining his innocence in relation to the second homicide and I am therefore unable to comment on issues relating to regret and remorse. If the 'ground truth' is that Mr Hore did commit the second homicide then obviously that has some grave prognostic indicators regarding his potential future behaviour. If on the other hand the 'ground truth' is that Mr Hore did not commit this homicide, then it would be reasonable to assume that he probably has undergone some personality growth and development during the years that he has been in custody." 328. This Court must proceed on the basis that Hore committed the second homicide. This has some grave prognostic indicators, not the least of which is his continued violent behaviour when there is no warrant for such violence. 329. Hore also relied upon the report of Mr A D Diment, consultant psychologist, who interviewed him for about 2½ hours on 16 July 2002. Mr Diment described Hore as mentally alert, well oriented, coherent and composed. Mr Diment found no evidence of serious psychopathology. Hore maintained that he was innocent. On well recognized tests Hore scored in the minimal range both for clinical anxiety and clinical depression. Mr Diment administered a series of other tests. 330. Mr Diment wrote: "…Hore has formally assessed with a realistic well integrated personality profile, which is in contrast to psychiatric and psychological assessments carried out earlier in life … He regretted what happened to the victim but could not express remorse 'because I did not do it.' He has on this current assessment shown he has 'reversed' or improved, albeit with professional help, serious personality and behavioural characteristics evident earlier. He was vulnerable to influence by Ms Rush when 21 and this led to tragic consequences … he would benefit from further appropriate professional psychological assistance in future to consolidate the gains he has made." 331. Barr J was unable to accept Mr Diment's conclusions. He said: "… I do not understand how a conclusion can be reached that [Hore] is now contented, composed, reasonable, reality oriented and has a sense of self-worth … I do not accept that he has reversed or improved his anti-social personality disorder or his behavioural characteristics. I think that Dr Westmore's observation is much nearer to the truth, namely that if it be accepted that [Hore] did murder the deceased, as it must, there are grave prognostic indicators for his future behaviour." 332. These comments should be made. Mr Diment seems to have acted primarily on the results of the tests administered to Hore and his observations and assessment during the interview. There may have been some growth and development on Hore's part. Dr Westmore regarded this as possible and perhaps even likely as Hore matured. It was not nearly enough. Dr Westmore regarded the issue whether Hore committed the second homicide as largely determinative. If he did, Hore's future prognosis was a grim one. 333. Barr J reached these conclusions: "40 The offender is utterly without remorse. The murder of which he stands convicted is the latest in a series of violent attacks on other people, prison inmates, prison officers and members of the public. I see no prospect of his rehabilitation. I think that he is dangerous and that the community needs to be protected from him. 41 A serious feature of the murder is that it was carried out in a prison. It was a minimum security prison and the offender abused the freedom that his classification in that environment afforded him. It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them. 42 The murder of the deceased was an execution of the coolest kind. It was carefully planned. The deceased, a man of small build, was lured under some pretext to the place of execution. He was there swiftly and efficiently put down by three strong men. His injuries were horrific. The murder was an act of great depravity. The fact that it is not possible to say precisely why the offender committed the offence or what part he played does not remove his crime from the worst category of offences of murder. Neither does the fact that he was not involved in placing the instrument of execution at the place of execution. 43 In my opinion the offender's level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only through the imposition of a sentence of imprisonment for life." 334. Hore contends in his Ground 14 that the sentence was excessive given: (a) the offence was not in the worst category of murder; (b) the circumstances of the offence. (c) the judge's findings were not available on the evidence 335. Hore pointed out that the evidence failed to indicate what part he took in the actual offence. The evidence did not establish that Hore was the actual perpetrator of the assault. Somebody else may have administered the fatal blow. Hore submitted that Barr J erred in finding that he (Hore) was present with the intention that the deceased should be killed. 336. Hore submitted that the jury's verdict meant that there had been a pre-concert agreement to cause serious injury, but not necessarily to kill. He also submitted that the nature of this agreement and the details available did not necessarily mean that it had been planned beforehand to use the rock previously seen and identified as similar to the rock allegedly used. It was only speculation that the appellant was aware of this as part of the agreement. 337. Hore submitted that Barr J determined that it was an "execution", that is, there was an intention to kill. Hore also submitted that it was obvious that the person who used the rock intended to kill, but not that this person was Hore. He submitted that it would need clear evidence and not speculation to apply that intent to himself. 338. Hore contended that while the deterrent aspect of crimes in prison is significant it could not be said that his part in the offence, without clear evidence, warranted the imposition of a life sentence. 339. Hore's submissions overlook the combined effect of the various pieces of evidence. A substantial piece of rock was taken around to the back of B Block by Hart and Fyffe. Later Hart, Fyffe and Hore walked towards B Block. Fyffe and Hore went around the back of B Block. Hart entered B Block and collected the deceased, inducing him to come around to the area at the back of B Block where he was to meet his death. In that area the deceased was knocked to the ground and savagely set upon, the rock being used to break his skull. Fyffe and Hore were present. The blood splattered at a level on and close to the ground. Applying the rock to the deceased's head could only have one result, namely the death of the deceased. Fyffe and Hore were seen moving away from just beyond the awning shortly after the blows were administered. Hart, Fyffe and Hore reappeared within a short time of the blows being administered, in a friendly, jovial mood and patting each other. Such behaviour on Hore's part does not indicate a person who did not intend to kill or who only intended to injure. Within a very short period after this the deceased's dead body with its grave head wounds was found. 340. This was a planned, fatal and unwarranted attack on the deceased. 341. This was a very bad case of murder; the violence and savagery were compelling. There can be no doubt that Hore and Fyffe had an intention to kill. Hore had no claim to leniency. This was his second homicide. He is a man given to violence and the community needs protection from him. 342. While the sentence imposed was a stern one it was justified. The discretion of Barr J in imposing it did not miscarry. 343. Leave to appeal against sentence should be granted, but the appeal should be dismissed. Fyffe 344. He was born on 30 September 1966. His criminal career began at the age of thirteen with car stealing. Since then he has committed many such offences and has served a number of prison terms. He has a bad record for traffic offences, many of them involving alcohol. He has two convictions for assault. In 1993 he was sentenced to imprisonment for interfering with a witness. At the time of the murder he was serving a number of sentences which were due to expire on 15 June 2001. He was later sentenced to serve a further term which expired on 11 April 2002. 345. As Fyffe did not give evidence on sentence Barr J took details of his personal background from the report of Anna Robilliard, psychologist. The judge regarded the report as partially reliable as to the things only Fyffe could say. Fyffe supplied her with details which pointed to him having a severely disadvantaged and disrupted childhood and upbringing, characterised by neglect and violent treatment of him and one instance of him being charged and gaoled for 6 months at the behest of his father and stepmother when he would not comply with their wishes. 346. Fyffe had a number of relationships with women and has a daughter and a son. He wishes to maintain the relationship he formed with the mother of his son. He claims that he had work and worked until 1998 when he suffered a severe back injury in an accident, such injury necessitating surgery in 1999. He claims that he has not been able to return to work. 347. Fyffe told Ms Robilliard that he had been a heavy drinker over the years but in 1998 he stopped drinking as it was causing arguments with his de facto. They attended Alcoholics Anonymous together. He admitted smoking cannabis occasionally because he said it relaxes him and relieves his back pain. He became addicted to heroin about a month prior to his imprisonment in February 2000 to alleviate his pain. 348. The core of the judge's reasons are contained in these paragraphs. "30 The deprivation and cruelty which attended the offender's childhood and teenage years were likely to lead to criminal behaviour and to the use of and perhaps addiction to alcohol and other drugs. They make much of the offender's criminal history understandable. They were also likely to reduce his sensitivity to violence and it is surprising that the offences he committed before the present murder, though many, have not been characterised by violent acts. … 31 However, none of the events of his life explains why he might have committed this offence. No alcohol or other drug was involved. There was no confrontation, no flaring of temper, no spontaneity. 32 The offender continues to deny the offence and is without remorse. 33 A serious feature of the murder is that it was carried out in a prison. It was a minimum security prison and the offender abused the freedom that his classification in that environment afforded him. It is particularly important that courts impose sentences calculated to deter the commission of offences in prison. Officers who administer prison communities are entitled to expect that inmates will be deterred from offending. Equally, inmates serving their sentences as best they may are entitled to as much protection as the courts can afford them. 34 The murder of the deceased was an execution of the coolest kind. It was carefully planned. The deceased, a man of small build, was lured under some pretext to the place of execution. He was there swiftly and efficiently put down by three strong men. His injuries were horrific. The murder was an act of great depravity. The fact that it is not possible to say precisely what part the offender played does not remove his crime from the worst category of offences of murder. 35 There are some cases where the level of culpability is so extreme that the community interest in retribution and punishment can be met only through the imposition of the maximum penalty. In such cases it is necessary to disregard what might otherwise be persuasive subjective circumstances, so that they play no part in the decision of the Court. In my opinion this is such a case because the wickedness of the offender's crime was so great. 36 In my opinion the offender's level of culpability is so extreme that the community interest in retribution, punishment, community protection and deterrence can be met only through the imposition of a sentence of imprisonment for life." 349. There are significant differences between the cases of Hore and Fyffe. The latter endured a childhood and experiences in his teenage years which were very bad and likely to lead to criminal behaviour and the use of drugs and alcohol. While Fyffe has a poor criminal record it does not approach the serious violent crimes committed by Hore, including a previous murder. Many of Fyffe's offences were towards the lower end of the criminal scale, but there were many of them. 350. Fyffe submitted that the murder found by the jury was not in the worst category type of case and should not have been dealt with by a sentence pursuant to ss 19A, Crimes Act and s 61(1), Crimes (Sentencing Procedure) Act. It was submitted that his criminality lacked that quality of greater heinousness that leads to such sentences. Fyffe submitted that there was no evidence as to, and no finding could be made of, who actually killed the deceased nor what role he played in the actual killing. He submitted that he should have been sentenced to a finite head sentence with a stated non-parole period. 351. Set out below are the errors of the sentencing judge as alleged by Fyffe, with my comments: (a) finding as proved beyond reasonable doubt as an aggravating matter that Fyffe had taken a sandstone block to the scene of the killing and thus was part of a deliberately planned execution. This involved the judge rejecting portion of the evidence given by Bond at the trial and acting on what Bond said to the police and in the committal proceedings. This should have given rise to a doubt. The judge was aware from the evidence Bond gave on the voir dire that Bond did not wish to give evidence because of fears he held for the safety of members of his family. It was open to the judge to be satisfied beyond reasonable doubt that what Bond said to the police and in the committal proceedings was the truth. In further submissions Fyffe contended it was unlikely that the jury convicted on the basis that the rock was taken to the crime scene to kill the deceased, particularly since the Crown did not allege the rock found was the rock earlier seen, there was no attempt to connect it through Bond's evidence and this was otherwise inconsistent with the directions given in the trial. Fyffe emphasised that Bond told the jury that he would be committing perjury if he identified Fyffe. Neither the jury nor the judge accepted the last mentioned evidence of Bond. On the evidence the judge, when sentencing, was entitled to be satisfied beyond reasonable doubt that Fyffe was a party to taking the piece of rock to the crime scene to prepare for the killing. (b) finding as aggravating factors warranting a condign sentence for general deterrence that the murder occurred in a minimum security prison. The judge correctly treated this as a serious feature of the murder. However, it was the factors mentioned in paragraph 34 of his reasons quoted earlier that primarily led to the sentence imposed. (c) finding as further aggravating factors that "it was an execution of the coolest kind" and "the deceased … a man of small build … was swiftly and efficiently put down by three strong men". Each of these findings was justified. They form part of a paragraph, namely 34, in which the judge sums up his assessment of what occurred. That assessment, while stern, was justified. (d) finding that it was necessary to disregard the persuasive personal circumstances of the offender [Fyffe], and (e) disregarding the offender's background and personal circumstances. 352. Grounds (d) and (e) should be taken together. 353. Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 provides that a life sentence is to be imposed where: "The court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." 354. Section 61(3) of that Act provides: "Nothing in subsection (1) affects s.21(1)." 355. That provision permits the Court to impose a sentence for a specified term even where an offender is liable to a sentence of life imprisonment. In the present case Barr J was firmly of the view that the provisions of s 61(1) quoted above were satisfied and should be applied. That was a finding which was reasonably open. 356. In R v Harris (2000) 50 NSWLR 409 at [60] Wood CJ at CL (with the concurrence of Giles JA and James J) endorsed the approach of Bell J that "the assessment of the culpability of the prisoner that was required had to be directed to the circumstances surrounding or causally connected with the offence, leaving aside matters such as remorse, pleas of guilty, prospects of rehabilitation and the like. In substance this required attention to be given to the blameworthiness of the person standing for sentence, although that did not preclude consideration being given, for example, to the extent to which the deprived life and upbringing of the accused may have contributed to the commission of the offence." 357. In Harris it was held that s 61 had not abrogated the common law. At [87] Wood CJ at CL doubted whether the assessment that a case falls within the "worst case category" at common law was any different from that under s 61(1). At [103]–[104] Wood CJ at CL accepted the proposition that some offences are so heinous that the offender's subjective circumstances should be wholly or substantially disregarded. Barr J took the view that the present case was such a case and that the subjective circumstances could not displace the need for a life sentence. 358. In Harris at [100] Wood CJ at CL emphasised, as many judges have done in the past, that the sanctity of human life is of great significance. That concept lies at the heart of the criminal law. 359. This was a savage and brutal killing where the perpetrators had scant regard for the life of the deceased. There were no grounds which would justify such an attack, or indeed, any attack. 360. I am acutely conscious of the terrible impact of a life sentence, especially bearing in mind Fyffe's age and his subjective circumstances. Nevertheless the crime was so terrible and the treatment of the deceased so callous and so savage that I have reluctantly concluded that it cannot be said that the judge erred in imposing a sentence of life imprisonment on Fyffe. 361. I would grant leave to Fyffe to appeal against sentence but dismiss his appeal. 362. I propose the following orders in each of the cases of Hore and Fyffe. 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted; appeal against sentence dismissed. ********** 15/04/2005 - Name of appellant Fyffe's solicitors - Paragraph(s) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.