Reported Decision: 196 A Crim R 199 Appeal Outcome: Special leave refused by the High Court (s14/2010) 28 May 2010 New South Wales Court of Criminal Appeal CITATION: Burrell v Regina [2009] NSWCCA 163 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 18 and 19 December 2008 JUDGMENT DATE: 17 June 2009 JUDGMENT OF: Beazley JA at 1; Grove J at 1; Howie J at 1 DECISION: 1. Leave to appeal is granted; 2. The appeal is dismissed. CATCHWORDS: CRIMINAL LAW – appeal – indispensable intermediate facts and circumstantial evidence – directions to jury – whether the trial judge erred in refusing to give a direction in accordance with Shepherd v R [1990] HCA 56 - (1990) 170 CLR 573 - CRIMINAL LAW – appeal – indispensable intermediate facts and circumstantial evidence – whether verdicts unsafe and unsatisfactory, insofar as they are unreasonable and cannot be supported having regard to the evidence - CRIMINAL LAW – appeal – orders made by Court of Criminal Appeal – orders reopened after factual errors discovered in judgment – some grounds appealed to the High Court – case remitted to the Court of Criminal Appeal from the High Court – whether remitter includes grounds not appealed to the High Court - CRIMINAL LAW – appeal – evidence – witnesses – further cross-examination under the Evidence Act 1995, s 38 - whether the trial judge erred in permitting further cross-examination of particular witnesses by one party after cross-examination by the other party of those witnesses - CRIMINAL LAW – appeal – note from juror to trial judge- whether note reveals irregularity during the jury's deliberations – whether the trial judge erred in giving a direction in accordance with Black v R [1993] HCA 71 - (1993) 179 CLR 44 – whether the trial judge erred in not discharging the jury – whether the trial judge erred in failing to enquire whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance - CRIMINAL LAW – appeal – sentence – life imprisonment for murder – whether the trial judge erred in imposing a sentence of life imprisonment Crimes (Sentencing Procedure) Act 1999, s 61(1) LEGISLATION CITED: Criminal Appeal Act 1912, s 6(1) Evidence Act 1995, s 38, s 135, s 137, s 192 High Court Rules 2004 (Cth), reg 3.01 CATEGORY: Principal judgment Black v R [1993] HCA 71; (1993) 179 CLR 44 Burrell v R [2007] NSWCCA 65 Burrell v The Queen [2008] HCA 34 Chamberlain v The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521 Davidson v R [2009] NSWCCA 150 Edwards v The Queen (1993) 178 CLR 193 Grierson v R [1938] HCA 45; (1938) 60 CLR 431 Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 House v R [1936] HCA 40; (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Knight v Regina [2006] NSWCCA 292; 164 A Crim R 126 M v R [1994] HCA 63; (1994) 181 CLR 487 MFA v R [2002] HCA 53; (2002) 213 CLR 606 Minniti v R [2006] NSWCCA 30; 159 A Crim R 394; 196 FLR 431 Plomp v R [1963] HCA 44; (1963) 110 CLR 234 R v Arthurell (Supreme Court of New South Wales, 3 October 1997, unreported) R v Baker (Court of Criminal Appeal, 20 September 1995, unreported) R v Bell (1985) 2 NSWLR 466 R v Valera [2002] NSWCCA 50 R v Burrell [2007] NSWCCA 79 R v Chetcuti (Court of Criminal Appeal, 24 December 1993, unreported) R v Crofts (Supreme Court of New South Wales, 6 December 1996, unreported) R v Fowler [2000] NSWCCA 142 R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported) R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409; 121 A Crim R 342 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 CASES CITED : R v Kalajzich (1997) 94 A Crim R 41 R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 R v Kingswell (Court of Criminal Appeal, 2 September 1998, unreported) R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 R v Markulevski [2001] NSWCCA 290; (2001) 52 NSWLR 82; (2001) 125 A Crim R 186 R v Merritt [1999] NSWCCA 29 R v Merritt [1999] NSWCCA 29 R v Milat (Supreme Court of New South Wales, 23 April 1996, unreported) R v Miles [2002] NSWCCA 276 R v Mrish (Supreme Court of New South Wales, 13 December 1996, unreported) R v Ngo [2001] NSWSC 1021; (2001) 125 A Crim R 495 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 R v Petrinovic [1999] NSWSC 1131 R v Petroff (Court of Criminal Appeal, 12 November 1991, unreported) R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported) R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) R v Zaiter [2004] NSWCCA 35 Ramstead v The Queen [1999] 2 AC 92 Regina v Dellapatrona (1993) 31 NSWLR 123 Regina v Kilbourne (1973) AC 729 Regina v Sandford (1994) 72 A Crim R 160 Regina v Small (1994) 33 NSWLR 575 Regina v Willard [2005] NSWSC 402 Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 Velevski v R [2002] HCA 4; (2002) 187 ALR 233 Yuill v R (1994) 34 NSWLR 179; (1994) 77 A Crim R 314 PARTIES: Bruce BURRELL (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2006/2061 COUNSEL: I Barker QC; D Dalton SC (Appellant) M Sexton SC; T Smith (Respondent) SOLICITORS: Legal Aid Commission (Appellant) Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 2002/101 LOWER COURT JUDICIAL OFFICER: Barr J LOWER COURT DATE OF DECISION: 9 August 2006 LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Bruce Allan Burrell [2006] NSWSC 581 - 57 - IN THE COURT OF CRIMINAL APPEAL CCA 2002/2381 BEAZLEY JA GROVE J HOWIE J 17 June 2009 Bruce Allan Burrell v Regina Headnote On 6 June 2006, a jury convicted the appellant of the kidnapping and murder of Kerry Whelan. This was the second trial of the appellant for the charges of murder and kidnapping, the jury at the first trial having been unable to reach a unanimous verdict. Mrs Whelan was seen in the carpark at the Parkroyal Hotel in Parramatta at 9:38 am on 6 May 1997. Apart from some possible sightings of her later that day and another possible sighting on 9 May 1997, she has not been seen since and her body has never been found. On 9 August 2006, Barr J sentenced the appellant to life imprisonment on the charge of murder and a term of 16 years imprisonment with a non-parole period of 12 years on the charge of kidnapping. The appellant appealed against his convictions and sought leave to appeal against his sentence to life imprisonment. On 16 March 2007, the Court dismissed the appeal against conviction and granted leave to the appellant to appeal against the sentence, but dismissed the appeal: see Burrell v R [2007] NSWCCA 65 (the first appeal). The Court purported to reopen the appeal and reconsidered the grounds of appeal to address factual errors said to be contained in the judgment: R v Burrell [2007] NSWCCA 79. The appellant appealed to the High Court, who quashed the orders made by the Court and remitted the matter for rehearing of the appeal: Burrell v The Queen [2008] HCA 34; (2008) 248 ALR 428. The appeal with which this Court is concerned is the rehearing ordered by the High Court. Held Per the Court Issue one: Did the trial judge err in failing to give the jury a direction in accordance with Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that they had to be satisfied beyond reasonable doubt before being able to convict the appellant of either: (a) three specified indispensable intermediate facts, or, alternatively; (b) that they had to be satisfied beyond reasonable doubt of at least one of those three indispensable intermediate facts? (ground 1) Issue two: Did the trial judge err in directing the jury that the appellant's counsel at trial had made incorrect statements of law in his address to the jury in respect of the Crown's reliance on the indispensable intermediate facts? (ground 2) Where the Crown relies on indispensable intermediate facts, but does not restrict its case to those facts, it does not have to satisfy the jury beyond reasonable doubt of any of those facts. What the Crown has to do, however, is satisfy the jury beyond reasonable doubt that the accused is guilty of the offence. The Crown can only do that if it satisfies the jury beyond reasonable doubt about each of the elements of the charge of murder: [120] and [132]-[136]. Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 (considered) Chamberlain v The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521 (considered) R v Merritt [1999] NSWCCA 29 (considered) Minniti v R [2006] NSWCCA 30; 159 A Crim R 394; 196 FLR 431 (considered) R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported) (considered) R v Zaiter [2004] NSWCCA 35 (considered) Davidson v R [2009] NSWCCA 150 (considered) Velevski v R [2002] HCA 4; (2002) 187 ALR 233 (referred to) R v Hillier [2007] HCA 13; (2007) 228 CLR 618 (referred to) R v Keenan [2009] HCA 1; (2009) 83 ALJR 243 (referred to) Plomp v R [1963] HCA 44; (1963) 110 CLR 234 (referred to) A Shepherd direction is unlikely to be required where its effect in respect of certain evidence would deprive the jury of a consideration of possibilities, which are clearly open on the evidence and are part of the Crown case: [132]-[136]. A Shepherd direction is unlikely to be required where the Crown case relies upon a combination of circumstantial facts. This is so even if there is certain evidence which, if taken by itself and accepted by the jury beyond reasonable doubt, would be sufficient to find the accused guilty [132]-[136]. Issue three: Are the verdicts unsafe and unsatisfactory, insofar as they are unreasonable and cannot be supported having regard to the evidence? (ground 10) Where the Crown case is a very strong circumstantial case and where the jury is appropriately directed as to how to approach such a case, then notwithstanding evidence tending against the Crown's case, it is open for the jury to deliver a verdict of guilty: [128]-[130], [132]-[136] and [176]. M v R [1994] HCA 63; (1994) 181 CLR 487 (considered) MFA v R [2002] HCA 53; (2002) 213 CLR 606 (referred to) R v Markulevski [2001] NSWCCA 290; (2001) 52 NSWLR 82; (2001) 125 A Crim R 186 (referred to) Issue four: Were the challenges comprehended in grounds 8 and 9 intended to be included in the remitter to this Court? Where the High Court grants special leave to appeal on some, but not all, grounds of appeal and then remits the case to the court below after determining the grounds of appeal granted leave, the preferable view of the High Court's order is that the court below does not have to consider the grounds of appeal that were refused special leave: [187] Burrell v The Queen [2008] HCA 34 (considered) Burrell v R [2007] NSWCCA 65 (referred to) Issue five: Assuming that the challenges comprehended in grounds 8 and 9 were intended to be included in the remitter to this Court, did the trial judge err in permitting further cross-examination by the Crown after cross-examination by the appellant of some of the Crown's witnesses? (ground 8) A trial judge does not exercise his/her discretion erroneously where he/she permits a party to further cross-examine a witness where evidence given at an earlier trial places both parties in the position where they would have been able to anticipate the course of evidence and the course of cross-examination: [198], [204] and [212] R v Kneebone [1999] NSWCCA 279; (1999) 47 NSWLR 450 (referred to) R v Fowler [2000] NSWCCA 142 (referred to) R v Milat (Supreme Court of New South Wales, 23 April 1996, unreported) (referred to) R v Parkes [2003] NSWCCA 12; 147 A Crim R 450 (referred to) R v Kingswell (Court of Criminal Appeal, 2 September 1998, unreported) (referred to) Burrell v R [2007] NSWCCA 65 (referred to) Issue six: Assuming that the challenges comprehended in grounds 8 and 9 were intended to be included in the remitter to this Court, did the trial judge err in not discharging the jury and in giving in the circumstances a direction in accordance with Black v R [1993] HCA 71; (1993) 179 CLR 44? Did the trial judge err in not giving not giving in the circumstances a modified direction to that outlined in Black? Having given a Black direction, did the trial judge err by failing to enquire whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance? (ground 9) Where it might be said that a juror's note to the trial judge reveals irregularity in the jury's deliberations, such as a threat by the majority to disclose to the trial judge transgressions made by that juror, the trial judge does not have to discharge the jury but may give a direction as to the nature of the irregularity and trangressions: [216]. Black v R [1993] HCA 71; (1993) 179 CLR 44 (considered) Ramstead v The Queen [1999] 2 AC 92 (referred to) Yuill v R (1994) 34 NSWLR 179; (1994) 77 A Crim R 314 (referred to) Burrell v R [2007] NSWCCA 65 (followed) The fact that a minority juror feels pressure from the other jurors does not, of itself, give rise to concerns that a miscarriage of justice is occurring and does not, of itself, require the trial judge to discharge the jury: [220]. Ramstead v The Queen [1999] 2 AC 92 (referred to) Yuill v R (1994) 34 NSWLR 179; (1994) 77 A Crim R 314 (referred to) Burrell v R [2007] NSWCCA 65 (followed) It is for the trial judge to determine whether it was appropriate, after receiving a note from a juror that he/she did not feel that deliberations were any longer genuine, to enquire as to the jury's progress in their deliberations: [225]. Issue seven: Did the trial judge err in sentencing the appellant to life imprisonment in respect of the conviction for murder? (grounds 11 and 12) It is not necessary in order for a sentence of imprisonment for life to be imposed for the Court to be satisfied that the crime is of the most serious or most heinous category or for the Court to be satisfied that the crime is analogous to other crimes that have attracted a sentence of imprisonment for life: [207], [212]. R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 (referred to) R v Merritt [1999] NSWCCA 29 (considered) R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) (considered) R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409; 121 A Crim R 342 (referred to) R v Arthurell (Supreme Court of New South Wales, 3 October 1997, unreported) (considered) Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 (considered) R v Miles [2002] NSWCCA 276 (referred to) Knight v Regina [2006] NSWCCA 292; 164 A Crim R 126 (considered) R v Kalajzich (1997) 94 A Crim R 41 (considered) R v Petrinovic [1999] NSWSC 1131 (referred to) R v Baker (Court of Criminal Appeal, 20 September 1995, unreported) (referred to) R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported) (referred to) Regina v Willard [2005] NSWSC 402 (referred to) R v Mrish (Supreme Court of New South Wales, 13 December 1996, unreported) (referred to) R v Chetcuti (Court of Criminal Appeal, 24 December 1993, unreported) (referred to) R v Crofts (Supreme Court of New South Wales, 6 December 1996, unreported) (considered) R v Ngo [2001] NSWSC 1021; (2001) 125 A Crim R 495 (considered) House v R [1936] HCA 40; (1936) 55 CLR 499 (referred to) IN THE COURT OF CRIMINAL APPEAL CCA 2002/2381 BEAZLEY JA GROVE J HOWIE J 17 June 2009 Bruce Allan Burrell v Regina Judgment 1 THE COURT: On 6 June 2006, a jury convicted the appellant of the kidnapping and murder of Kerry Whelan. Mrs Whelan was seen at 9:38 am on 6 May 1997 walking up the ramp of the carpark at the Parkroyal Hotel in Parramatta. Apart from some possible sightings of her on that day and another possible sighting on 9 May 1997, she has not been seen since and her body has never been discovered. On 9 August 2006, Barr J sentenced the appellant to life imprisonment on the charge of murder and a term of 16 years imprisonment with a non-parole period of 12 years for the offence contrary to the Crimes Act 1900, s 90A. 2 The appellant appealed against his convictions and sought leave to appeal against his sentence. On 16 March 2007, the Court dismissed the appeal against conviction and granted leave to the appellant to appeal against the sentence, but dismissed the appeal: see Burrell v R [2007] NSWCCA 65 (the first appeal). However, because of factual errors contained in the judgment, the Court purported to reopen the appeal and reconsidered the grounds of appeal. 3 On 23 March 2007, the Court published a further judgment in which it again dismissed the appeals, but delivered different reasons: R v Burrell [2007] NSWCCA 79. The appellant was granted leave to appeal to the High Court in respect of both the first and second judgments. The central issue before the High Court was whether the Court of Criminal Appeal had power to reopen the appeals after orders had been made on the appeal and those orders been formally recorded. It was held that the Court of Criminal Appeal did not have that power. As the Court itself had acknowledged in its second set of reasons that its first set of reasons were based on erroneous matters, the High Court quashed the orders made by the Court and remitted the matter for rehearing of the appeal: Burrell v The Queen [2008] HCA 34; (2008) 248 ALR 428. 4 The orders made by the High Court in remitting the matter to this Court have implications for the rehearing, as discussed below. In particular, there is a question as to what grounds this Court was required to redetermine. 5 The appeal with which this Court is concerned is the rehearing ordered by the High Court. On the present appeal against conviction, the appellant relied on the following five grounds (the reference to the appeal ground number is a reference to the appeal ground in the original notice of appeal filed on 6 September 2006): (1) That the trial judge erred in failing to give the jury a direction in accordance with Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that they had to be satisfied beyond reasonable doubt before being able to convict the appellant of either: (a) three specified indispensable intermediate facts, or, alternatively; (b) that they had to be satisfied beyond reasonable doubt of at least one of those three indispensable intermediate facts (ground 1). (2) That the trial judge had erred in directing the jury that the appellant's counsel at trial had made incorrect statements of law in his address to the jury in respect of the Crown's reliance on the indispensable intermediate facts (ground 2). (3) That the trial judge erred in permitting further cross-examination by the Crown pursuant to the Evidence Act 1995, s 38, after cross-examination by the appellant of witnesses Francis Cater, Norman Elliott and Allan Burrell (ground 8). (4) That the trial judge erred in: (a) not discharging the jury and giving, in the circumstances, a direction in accordance with Black v R [1993] HCA 71; (1993) 179 CLR 44; (b) not giving, in the circumstances, a modified direction to that outlined in Black ; and (c) failing to enquire at the end of the day on 5 June (the jury having retired at 12.58 am on 24 May), having already given a Black direction, as to whether there was any real prospect of the jury reaching unanimous verdicts or whether the jury or any of its number required any assistance (ground 9). (Grounds 8 and 9 are the grounds in respect of which there is a question as to whether they are to be reheard pursuant to the High Court's order). (5) That the verdicts were unsafe and unsatisfactory, insofar as they are unreasonable and cannot be supported having regard to the evidence (ground 10). 6 The appellant also appealed against the sentence of life imprisonment in respect of the conviction for murder (grounds 11 and 12). The Crown case 7 The Crown case at trial was a circumstantial case, as there was no direct evidence linking the appellant to the disappearance of Mrs Whelan. Her body was never recovered. There were three major planks in the Crown case: (a) evidence suggesting that Mrs Whelan was last seen as a passenger in a vehicle similar to that of the appellant's leaving the vicinity of the Parkroyal Hotel at Parramatta on the morning of 6 May 1997 and she was never seen again; (b) notes found in the appellant's handwriting at his premises on 21 May 1997 which the Crown alleged were an outline of things that had to be done in connection with obtaining ransom from the disappearance of Mrs Whelan; and (c) a call made by the kidnapper on 23 May 1997 from Goulburn at a time when the appellant was in the city and from a telephone box that was admittedly used by him on the day of the call. This evidence was placed against a background of the appellant's financial difficulties and his unexpectedly making contact with the Whelans shortly before Mrs Whelan's disappearance. The appellant's financial difficulties prior to May 1997 8 The appellant was born and raised in the Goulburn district. He became employed as an advertising agent. Whilst working at The Advertising Works in 1985, he married his now ex-wife, Dallas Bromley. In 1988, the appellant and Ms Bromley, in conjunction with her parents, bought a 485 acre rural property called Hillydale near the village of Bungonia. 9 The appellant left The Advertising Works in 1989 and commenced employment with Crown Equipment. The appellant was retrenched in December 1990. The appellant then worked shortly at Printout and then for a few months with Peter Grace. He also did some sporadic freelance work. 10 In January 1995, Ms Bromley set up an advertising business with the appellant. The business prospered and, although the appellant was doing some freelance work, Ms Bromley was earning the majority of the income. Their marriage eventually deteriorated and in December 1996, they settled their financial affairs by each taking out a $125,000 loan and buying Ms Bromley's parents' share of Hillydale. Relevantly, as a result of those financial arrangements, the appellant retained ownership of Hillydale. 11 As at May 1996, Ms Bromley had stopped providing financial assistance to the appellant. It was clear from evidence led from the appellant's father, Allan Burrell, that the appellant was in financial difficulty. He said that over the period of twelve months after the appellant's separation from his wife, he loaned the appellant between $25,000 and $30,000 to assist him in maintaining Hillydale. 12 Peter Buckley was the director of Ultra Tune Australia. Between January and March of 1997, the appellant asked him to either gift or loan him $15,000 on six occasions. In March or April 1997, the appellant used these words: "Get me the fucking money. Just make it happen. Just fucking get it now". 13 Analysis of several of the appellant's bank accounts showed that by May 1997, the appellant had a balance of only $634.00, insufficient to pay off one month's interest on his bank loan. The appellant's knowledge of Mrs Whelan 14 During the 1980's, the appellant worked for a firm that did work for Crown Equipment, a company of which Mrs Whelan's husband, Mr Bernard Whelan, was the Managing Director in Australia. The appellant came to know Mr Whelan when he attended a number of social functions at which Mr Whelan and Mrs Whelan were present. The appellant and Mr Whelan went on hunting trips together, and Mr Whelan and Mrs Whelan attended the appellant's wedding in 1985. 15 Whilst employed at Crown Equipment, the appellant and his wife visited the Whelans' home at Kurrajong for a tennis day. The appellant was also given the Whelans' home telephone number and he would sometimes call Mrs Whelan at home. 16 After the appellant left Crown Equipment, he maintained contact with Mr Whelan until two events occurred. The first was the escape of some of Mr Whelan's pedigree cattle from the appellant's land, where they were being agisted, into a National Park. Mr Whelan's cattle were expensive and not insured. The second was the theft of Mr Whelan's .44 magnum semi-automatic rifle when it was in the possession of the appellant for sale to a neighbour. Following these events, Mr Whelan had very little to do with the appellant from 1993 until a phone call on 7 April 1997. 7 April: a telephone call from the appellant 17 After not speaking to each other for four years, the appellant telephoned Crown Equipment on 7 April 1997 asking to speak to Mr Whelan. Janet O'Hanlon, a personal assistant, received the call and told the appellant, whose voice she recognised, that Mr Whelan was unavailable. The appellant left a message asking Mr Whelan to call him. On his way home from work, Mr Whelan called the appellant from his car. The call dropped out, so he later called the appellant from home. The appellant engaged him in some general conversation, including asking whether Mr Whelan travelled much. Mr Whelan replied that he went to Adelaide every week or two. 18 Mr Whelan gave evidence that he was baffled as to the purpose of the call. It was the Crown case that the appellant learned that Mr Whelan would be visiting Adelaide on 15 April 1997 to attend a meeting the next day. 16 April: a visit by the appellant to Mrs Whelan 19 On 16 April, the appellant went unannounced to the Whelans' house at Kurrajong. Mrs Whelan was there, as was her son, James, who was home from school ill. Upon reaching the front gate, the appellant realised it was locked. Instead of using his mobile phone, he returned about 10 km to Richmond to telephone the house. 20 Amanda Peters, who worked full-time for the Whelans looking after the horses and the children, answered the appellant's call. The appellant said that he was "Bruce" and a friend of the Whelans. She told him that Mr Whelan was not home and that, although she had attempted to transfer the call to Mrs Whelan, Mrs Whelan was not answering and Ms Peters could not locate her. Ms Peters gave the appellant the code for the security gate and soon after the appellant arrived at the house. 21 Ms Peters saw the appellant's vehicle arrive at the house but she did not see him meet Mrs Whelan or what they did or where they went. At some point, she entered the kitchen of the house and saw Mrs Whelan hand a cup of coffee to the appellant. They then went outside to drink it. A while later, Ms Peters saw Mrs Whelan and the appellant get up from the outdoor table and chairs. The appellant gave Mrs Whelan a kiss on the cheek and then left. The visit lasted about 40 minutes. 22 Mrs Whelan asked Ms Peters not to tell anyone of the appellant's visit. She said that it was a surprise that she would reveal in a couple of weeks. She made it clear to Ms Peters that she was not having an affair. She never told her husband of the visit. 23 The appellant told police on 21 May that on the morning of 16 April he had telephoned Crown Equipment and was told that Mr Whelan was not in that day. No person who was in a position to answer such a call had a recollection of the call and it was against company policy to inform callers of Mr Whelan's movements. 16 April to 6 May: the appellant's bad back 24 Between the visit on 16 April and 6 May, the appellant spoke to a number of people complaining of back pain. On 2 May, he contacted Dr Harmon seeking medical advice in regard to an old back injury, which he said had flared up again. The appellant was not one of Dr Harmon's patients. On 4 May, the appellant attended the property of his neighbours, Mr and Mrs Cooper. During this visit the appellant told them that he had a bad back. 25 On 5 May, the appellant made a purchase from Woolworths in Goulburn at 8:31 am and cashed a cheque at about mid-morning. 26 On 6 May, between 6:00 am and 8:00 am, the appellant made a call to Mrs Cooper, his neighbour, in which he mentioned the problem with his back. 27 The appellant told investigating police officers that he had been at Hillydale, on 6 May, incapacitated. 6 May: Mrs Whelan disappears 28 On 6 May, Mrs Whelan had arranged to exchange vehicles with Ms Peters so that the vehicle Ms Peters drove could be serviced. She arrived at Ms Peters' mother's home in Glossodia at about 8:20 am. Mrs Whelan was looking forward to going to Adelaide with her husband overnight. She seemed happy, although she looked at her watch a number of times as she said she had an appointment in Parramatta at 9:30am. The Whelans' household diary showed "9:30" on the page for 6 May 1997 written in Mrs Whelan's handwriting. She left for Parramatta from Ms Peter's home at 8:45 am. 29 After leaving Ms Peter's home, Mrs Whelan had two telephone conversations with her husband. She told him that she was going to Parramatta that morning to see a beautician or a skin specialist for a skin condition. She said she would leave her car where she usually parked it, in the Parkroyal Hotel in Phillip Street. She had arranged to meet her husband at Crown Equipment at 3:45 pm. 30 At about 9:40 am, Mrs Whelan arrived at the Parkroyal Hotel car park. She was seen by two people, the car park attendant, Mr Mascari and a Mr Shah. Mr Mascari told Mrs Whelan that the car park was full but he would look after her vehicle. He gave her a parking ticket and she walked up the ramp from the car park. She did not seem distressed. 31 Mr Shah had parked his vehicle at the car park at about 9:38am. As he walked up the ramp there was a woman on the other side ahead of him. He heard Mr Mascari call out to her about her keys and she told him they were in the vehicle. Mr Shah went to the left and the woman, whom he identified as Mrs Whelan, exited the ramp to the right. He thought she was walking towards an off-white sedan, not a four-wheel drive vehicle, parked outside the hotel. 32 Ms Peters attempted to contact Mrs Whelan on her mobile telephone at about 1:30 pm and at 3:30 pm. On neither occasion was she able to get through to Mrs Whelan's phone. She was on her way to pick up James Whelan from school at about 3:45 pm, when Mr Whelan rang and asked whether she had any recent contact with Mrs Whelan. 33 When Mrs Whelan did not appear at Crown Equipment at the arranged time, Mr Whelan called her, and continued to call her until 4:40 pm, when he drove to Parramatta to look for her. After finding Mrs Whelan's car in the car park with the keys still in the ignition, he became worried and asked the car park attendant to call '000'. He later attended at Parramatta police station and reported his wife as missing. 34 At the time of her disappearance, Mrs Whelan was wearing jewellery to the value of $50,000 and a valuable watch that her husband had given her on his recent return from Asia. Her passport was in a safe at home. A joint bank account was untouched after her disappearance. Surveillance footage 35 In the course of the investigation that ensued, police inspected camera surveillance footage of the Parkroyal Hotel captured on 6 May. Of relevance, from 9:01:00 to 9:01:24 am, is an image of a Pajero 4WD, the type of vehicle in possession of the appellant, moving forward outside the Parkroyal Hotel. At 9:38:03 am, Mrs Whelan is seen walking up the right-hand side of the car park ramp and exiting the ramp. From 9:38:08 to 9:38:12 am, there is a dark image, which the Crown suggested was the top of Mrs Whelan's head walking towards the Pajero. 36 From 9:38:45 to 9:38:46 am, the Pajero can be seen pulling away from the Parkroyal Hotel. This occurred 42 to 43 seconds after Mrs Whelan exited the car park ramp. 37 Police investigated hairdressers, beauticians, and skin specialists in Parramatta, but found no trace of Mrs Whelan having an appointment or having attended those premises on the day of her disappearance. 6 May: possible sightings of Mrs Whelan in Parramatta 38 Frances Carter worked on George Street Parramatta, and gave evidence that she saw a woman, she believed to be Mrs Whelan, on 6 May 1997 sometime between 10:00 and 10:15 am. Her evidence was that when she was going for a walk around the block she saw "Mrs Whelan" walking towards her. "Mrs Whelan" seemed spaced out, on drugs, in shock or in need of help. Mrs Carter also noticed a man walking with "Mrs Whelan". He appeared to be of Anglo Saxon descent, was shorter than she and was of a slimmer build. He was walking very close to "Mrs Whelan" and appeared to be in control and not worried. 39 Norman Elliott saw a person he believed to be Mrs Whelan on 6 May 1997. At about 9:35 am, he parked his company vehicle in Phillip Street on the opposite side of the Parkroyal Hotel, about 50 or 60 m away from it. He needed to go to the toilet. While walking towards the Parkroyal Hotel, he saw "Mrs Whelan" and a young man walking up the car park ramp. After coming out of the toilet, he saw the same woman standing near the lane that runs towards the David Jones car park beside the Parkroyal Hotel. He saw a different male standing with her who appeared to be "chatting her up". He overheard "Mrs Whelan" say, "how do you know that?" and after a short pause, she said, "that's right". After returning to his vehicle and doing a U-turn, he saw a white commercial-type van come out of the lane where he had seen the two persons standing. When the van had gone, he could no longer see the man or "Mrs Whelan". 7 May: a ransom note is delivered 40 On 7 May, Mr Whelan was at home at Kurrajong. The mail was collected and at about 5:00 pm he opened it. There was a ransom note that demanded the payment of $US1 M and gave instructions about an advertisement that was to be placed in the Daily Telegraph when the money was ready for collection. The note also stated that after the advertisement was placed in the newspaper "we will be in touch within three days at your home to tell you the next step". There was a direction that the money was to be delivered by Mr Whelan and only by Mr Whelan, that he must be alone and neither he nor his car was to be wired. He was not to use his car radio. The money was to in $AU100 bank notes, the notes were not to be consecutively numbered and not treated with dye or radioactive dust. It was to be delivered in a green plastic bag. The note stated that complying with its terms was "your only means of ever seeing her alive again". 41 The note set out the advertisement to be placed in the following terms: "ANYONE WHO WITNESSED A WHITE VOLKSWAGON BEETLE PARKED BESIDE THE EASTERN GATES OF THE SYDNEY OLYMPIC SITE AT 10:30 PM ON TUESDAY 8.4.97 PLEASE CALL -------------- THEN PUT YOUR HOME TELEPHONE NUMBER AT THE END OF THE ADVERTISEMENT . " 42 The ransom note also stated: "TO ENSURE HER SAFE RETURN YOU MUST AT NO TIME BRING IN THE POLICE THE PRESS ANY AUTHORITIES OR OUTSIDE ASSISTANCE. WE WILL KNOW IF YOU DO SO." 43 Notwithstanding this command, Mr Whelan immediately contacted the police. Mr Whelan had also been advised to contact a person, reputed to have criminal connections and whom he had met previously, as he might be able to help gather information. At Mr Whelan's request, Ms Peters' mother made contact with this person, a man maned Karl Bonnette. About a month after the disappearance, Mr Whelan spoke to Mr Bonnette at a party. He advised police that he had done this. Mr Bonnette later said that he had been unsuccessful in finding out anything. Mr Whelan admitted having discussed some aspects of the ransom note with Mr Bonnette, but not the amount of the ransom nor the requirement to place the advertisement in the paper. 44 Mr Bonnette gave evidence that he was not at the Whelans' house when the ransom note arrived. He was unaware of its contents until Ms Peters told him about it after the contents were published in the media. He denied any involvement in the kidnapping. 45 The ransom note was tested for fingerprints and DNA. The only fingerprints identified were those of Mr Whelan and his son. No DNA evidence was found. 9 May: possible sighting of Mrs Whelan in Brisbane 46 Robyn Lambert was a customs officer at the Brisbane International Airport and gave evidence that on 9 May 1997 between 10:30 and 11:00 am, she observed a very emotional and distraught woman who said she did not think that she would ever see her children again. On 23 May, Ms Lambert became aware of the disappearance of Mrs Whelan. That night she realised that woman she processed on 9 May looked like Mrs Whelan. 13 May: an advertisement is placed 47 Mr Whelan placed the advertisement in accordance with the ransom note in the Daily Telegraph on 13 May. The appellant was seen purchasing the Daily Telegraph from an Ampol service station on this day. The advertisement ran until 21 May 1997, but there was no response from the kidnapper. 16 May: the appellant's vehicle is seized 48 On 16 May 1997 in Goulburn, police spoke to the appellant and took possession of his Pajero. Also on this day, police executed a covert search warrant on the appellant's home. There was no sign of Mrs Whelan. 21 May: search of Hillydale and two notes are found 49 On 21 May 1997, police executed a search warrant on the appellant's Hillydale property. The search lasted five days. Police took possession of, inter alia, a silver 1995 Jaguar Sovereign sedan motor vehicle. Found underneath the front passenger seat of that vehicle was a UBD street directory. The position of the Parkroyal Hotel was highlighted in purple and the hotel's address written in the margin. 50 Two Woolworths dockets, dated 5 May 1997 and 23 May 1997 were taken into police possession. The notepads 51 Two notepads were taken from the appellant's home. The foolscap notepad contained this writing on the last page: "1. HAS BEEN K 2. NO P. 3. LETTER WITHIN 2 DAYS. 4. NOTHING UNTIL RECEIVED 5. STRESS '2'." The smaller notepad had this writing a few pages into it: "1. COLLECTION 2. ADVISEMENT 3. WAITING 4. HOW TO PROCEED 5. PICK UP 6. COVER ALL" 52 These notes were referred to at trial as the 'dot point notes'. 53 It was the Crown case that the shorthand in the dot point notes meant: "1. HAS BEEN Kidnapped 2. NO Police. 3. Ransom LETTER WITHIN 2 DAYS. 4. No return of Mrs Whelan [NOTHING] UNTIL RECEIVED 5. STRESS '2'. Meaning that no contact with the police was to be stressed" The notes in the smaller notepad were alleged to mean: "1. COLLECTION of Mrs Whelan 2. ADVISEMENT - that is advising the family of the kidnapping and the ransom demand 3. WAITING for the family to get the ransom together 4. HOW TO PROCEED - that is giving the family further instructions 5. PICK UP the money 6. COVER ALL tracks" 54 A document examiner gave evidence that the writing in both notepads was the appellant's handwriting. The appellant conceded at trial that he had written the notes. The typewriter 55 Police also took possession of a Canon QS100 typewriter. A "Courier 10" daisywheel was in the typewriter. The document examiner concluded that the ransom note was created with an "Orator 10" daisywheel, but that the daisywheel could easily be removed from the typewriter and replaced. Both of these types of daisy wheels could be used in this typewriter. 56 A total of 22 exhibit bags were filled with documents seized from the appellant's house. At the end of the search, the appellant checked and signed the exhibit record. Detective Sergeant Allan Duncan and Detective Sergeant Richard Agius picked up the exhibits from Goulburn Police Station on 23 May 1997. Some were taken to Lidcombe Analytical Laboratories and some to Parramatta Police Station. 57 Evidence was led from Detective Sergeant Duncan that the two officers had travelled from Goulburn Police Academy on the morning of 23 May 1997 to Goulburn Police station. They then travelled to Hillydale, where they conferred with other police. From there they travelled to Lidcombe Analytical Laboratories and from there, went to Parramatta Police Station. Evidence was led from Detective Sergeant Agius that the officers went from Goulburn Police Academy in the morning, to Hillydale, then to the Goulburn Police station, then next to Lidcombe, and then to Parramatta. First record of interview with appellant 58 The appellant was formally interviewed at Goulburn Police Station on 21 May 1997. He answered questions about his relationship with the Whelans. He admitted attending their home on 16 April because he was in the area, staying with his father at Balgowlah. He intended to see Mr Whelan in the hope of obtaining freelance work. When he learned that Mr Whelan was not at the office, he assumed he was at home. Mrs Whelan later told him her husband was away and offered to speak to her husband for him. He was at the property for about an hour and a half. 59 He said that he was at home on 6 May, incapacitated with a sciatic nerve problem. He spoke with Dr Harmon on 2 May who advised him to take Panadol and Morphine. A neighbour had suggested he see a physiotherapist. He rang to make an appointment, but cancelled it because he could barely move. He denied meeting Mrs Whelan on 6 May. He admitted his finances were "pretty damn low". 23 May: the kidnapper telephones from Goulburn 60 At around 9:30 am on 23 May 1997, Kathleen Pemberton, a receptionist at Crown Equipment, received a telephone call from the kidnapper. The caller said that Mr Whelan ought to call off the police and media "today" and that he would be in touch in two weeks. The caller had knowledge of the ransom note. Ms Pemberton said that the caller had a "deep, husky-tone" voice and that he did not have an accent, sounded educated and in his 40s. 61 The call was made from a public telephone booth located outside the Empire Hotel on Auburn Street, Goulburn. Voice identification 62 In December 1997, Inspector Peter Walsh played seven tapes with seven different voices to Ms Pemberton. Ms Pemberton listened to the tapes twice and then selected tapes C and D as having voices closest to that of the caller. The voice on tape C belonged to Senior Constable Michael Lewis, and the voice on tape D belonged to the appellant. 63 Sergeant Warren Hamilton was present at Hillydale on 23 May and kept a log for the day. He recorded that the appellant left the property at 7:20 am on a blue quad bike, returned at 9:55 am in a white utility, left again at 10:00 am in the white utility and finally returned at 10:15 am on the quad bike. 64 Phillip Broadhead, the appellant's neighbour, gave evidence that the appellant arrived at his property on the quad bike just before 8:00 am. The appellant left with his utility around 8:00 am. At almost 10:00 am, the appellant returned in the utility and then left on his quad bike. 65 The appellant admitted to making a telephone call from a public telephone booth on Auburn Street Goulburn between 9:20 and 9:30 am. He asserted that this call was to his solicitor. Emma Hill was a receptionist for the solicitor and gave evidence that the call from the appellant was made between 9:00 and 9:10 am, based upon her contemporaneous note of calls made that day. The appellant called again at 2.17 pm, confirming a future appointment. 66 On 25 May 1997, Sergeant Nargis Fam examined the telephone booth on Auburn Street and found no fingerprints that matched any persons of interest, including the appellant. 15 June: second record of interview 67 An interview was conducted with the appellant at his property on 15 June 1997. He admitted his financial situation was not good and he was looking for work. He said that he telephoned Mr Whelan on 7 April to look for work but thought it was better to speak to him face to face. He learned in that telephone call that Mr Whelan was doing a lot of business in Adelaide. Mr Whelan confirmed in his evidence in chief that he told the appellant in this telephone call that he usually had a meeting on a Wednesday in Adelaide either every week or every second week. 68 The appellant said he was at home from 2 to 9 May with a sciatic nerve problem and that he did not go to Parramatta on 6 May. He said had a physiotherapy appointment for later that week but he cancelled it because he was unable to get out of bed. 69 He said that on 23 May while police were searching his property he borrowed his neighbour's vehicle to go into Goulburn for some shopping. While there he rang his solicitor at about 9:00 am from the post office. He rang again about 20 minutes later from the phone box in Auburn Street. 70 Janelle McDonald was a bank clerk at the Westpac Bank in Goulburn. Her evidence was that she cashed a cheque for the appellant on 5 May at the Bank. She asked him for identification because he was not a regular customer. Other matters Kidnapping and death insurance policies 71 Mr Whelan had been given, about 15 years before his wife's disappearance, an envelope from the President of Crown Equipment with instructions that it was only to be opened when he or other senior executives were under threat. After the disappearance of Mrs Whelan, he opened the envelope and learned that the company had a kidnapping insurance policy in place. 72 On 13 May 1998, Mr Whalen received an e-mail from the President of Crown Equipment, informing him of the existence of a $US100,000 death benefit. The e-mail said that this was being brought to his attention as a result of what had been reported in the papers. Mr Whelan at some later stage received an insurance benefit in the sum of $US100,000. He denied under cross-examination of being aware of these policies before the disappearance of his wife. Trevor Whelan 73 Mr Whelan's adopted son from his first marriage gave evidence that he was angry and bitter towards his father after his father separated from his mother to start a relationship with Mrs Whelan. However, he became reconciled and attended their wedding. He said he had a good relationship with Mrs Whelan, who was about his age. 74 Mr Whelan said that in 1980 or 1981, Trevor had threatened to kill him with a knife. In 1980, Mr Whelan had excluded him from his will. After they were reconciled, Trevor worked for Crown Equipment for a short period and then with Mr Whelan in an enterprise involving boats called Whelan Marine. When that business came to an end, Mr Whelan did not have any contact with Trevor until the time of Mrs Whelan's disappearance. Mr Whelan described Trevor as being a very violent and disturbed person at that time and had no further contact with him after he made threats to a member of the family in 1995. Trevor had never threatened Mrs Whelan. 75 Trevor said that at the time of Mrs Whelan's disappearance, he was not in regular contact with his father and was unaware they were living in Kurrajong. He thought they lived in Castle Hill. He agreed in cross-examination that in a drunken state he would ring his father and threaten him and that he could become violent when intoxicated. The appellant's case at trial 76 The appellant's case in general was that there was no, or insufficient, evidence to connect the appellant with the disappearance of Mrs Whelan. In particular, the appellant denied that the Crown could prove that Mrs Whelan left the vicinity of the Parkroyal Hotel in a vehicle similar to that of the appellant on 6 May and was never seen again. 77 There was evidence to support the appellant's claim that he had a back condition. Dr Allan Watts was working at Carcoar District Hospital when the appellant sustained an injury following a fall while unloading hay, in 1982 or 1983. Dr Watts gave evidence that the injury was close to the path of the sciatic nerve and could have caused it damage, which could result in ongoing back pain. 78 There was evidence of attempts by the appellant to find work. Des Bridekirk had worked with the appellant in the late 1970s and 1980s at Country TV in Orange. The appellant called him in 1997 and asked whether he knew of any employment opportunities in the television industry. Mr Bridekirk could not help him but they agreed to catch up with each other. The appellant contacted Anthony Cavanagh by phone on 30 April or 7 May 1997 and asked whether he had any leads for the appellant to get back into advertising. Mr Cavanagh could not help him. 79 It was the appellant's case at trial that a police officer may have made the telephone call to Crown Equipment on 23 May 1997. A number of police officers were cross-examined on this possibility. 80 The appellant's case suggested that there were other possible suspects, including associates of Mr Whelan who had criminal associations, such as Mr Bonnette. There was also Trevor Whelan. It was also put to Mr Whelan that he was having an extramarital affair with, for example, Ms Peters. The suggestion was that this provided a motive for Mr Whelan having killed his wife. Grounds 1 and 2: the requirement for a Shepherd direction 81 Grounds 1 and 2 are set out above at [5] and may be considered together, as they raise the same essential question, namely, whether a Shepherd direction should have been given in this case. 82 The appellant contended that the Crown case depended upon the following indispensable intermediate facts being established: (1) that Mrs Whelan in fact left from the front of the Parkroyal Hotel by way of the Pajero 4WD seen in camera 7 at 9.38.45/46 am on 6 May 1997 (the Pajero evidence); (2) that the terms of the two dot point notes found at the appellant's home on 21 May had the meaning ascribed to them by the Crown's theory, that is, that they were an outline of the things to be done in connection with obtaining the ransom (the dot point evidence); and (3) that the appellant was in fact in the phone booth outside the Empire Hotel in Goulburn at the time the subject call was made to Crown Equipment at 9.21 am on 23 May 1997 (the telephone call evidence). 83 The appellant submitted that in accordance with the principles stated in Shepherd the jury had to be satisfied of each of those matters beyond reasonable doubt, the trial judge was required to direct to that effect. His Honour failed to do so. Alternatively, the appellant contended that his Honour erred in failing to direct the jury that if the jury was to convict him upon any one of the three independent bodies of evidence, at least one indispensable intermediate fact had to be found beyond reasonable doubt. The principles in Shepherd v R 84 In Shepherd, the High Court was concerned with the directions required to be given to a jury in a case based on circumstantial evidence. The High Court recognised in that case that an apparent misunderstanding had arisen out of the joint judgment of Gibbs CJ and Mason J in Chamberlain v The Queen (No. 2) [1984] HCA 7; (1984) 153 CLR 521. The misconception was that in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon individual items of evidence, each of which had been proved beyond reasonable doubt. 85 Dawson J (Mason CJ, Toohey and Gaudron JJ agreeing) explained both the misconception and the correct position in these terms, at [14]-[15] 585: "The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts - individual items of evidence - proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt. Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful." 86 Earlier in his judgment, at [4]-[5] 579, Dawson J said in respect of the matters of which a jury had to be satisfied in a circumstantial evidence case, and the directions required to be given by a trial judge in such a case: "Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed. On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore on Evidence, vol.9 (Chadbourn rev. 1981), par.2497, pp 412-414 - the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so . It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence." (Emphases added) 87 Dawson J reiterated the fundamental proposition that the prosecution bears the burden of proving all the elements of the crime beyond a reasonable doubt. As his Honour noted, that means that the essential ingredients of each element must be proved beyond reasonable doubt. It does not mean that every piece of evidence relied upon to prove an element by inference must itself be proved beyond reasonable doubt. His Honour referred, by way of example, to the element of intent, noting that, save for certain statutory exceptions, intent is an ingredient of every crime and that, apart from admissions, must be proved by inference. His Honour continued, at [6] 580: "But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately." 88 McHugh J also emphasised the cumulative nature of circumstantial evidence, stating at [10] 592: "There are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances of the case is greater than the probability of the truth of any of the individual circumstances. As Lord Simon of Glaisdale pointed out in Reg. v. Kilbourne (1973) AC 729, at p 758: 'Circumstantial evidence ... works by cumulatively, in geometrical progression, eliminating other possibilities.'" 89 His Honour continued that in a case based on circumstantial evidence, the jury was not concerned with the question whether any particular fact has been proved beyond reasonable doubt, but whether, if an inference of guilt is open on the evidence, that inference has been proved beyond a reasonable doubt. As his Honour explained, at [11]-[12] 593: "… [t]he cogency of the inference of guilt is derived from the cumulative weight of circumstances, not the quality of proof of each circumstance. In a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt. This is likely to be the case where the incriminating facts relied on to establish the inference are few in number. But the more facts that are relied on to found the inference of guilt, the less likely it is that each or any fact will have to be proved beyond reasonable doubt to establish guilt beyond reasonable doubt. Consequently, even when guilt beyond reasonable doubt cannot be inferred unless certain facts are proved, it may still be open to infer guilt beyond reasonable doubt even though each fact is not proved to that standard." 90 The application of these principles was considered by the Court in R v Merritt [1999] NSWCCA 29. There, the Court (Wood CJ at CL, James and Adams JJ) said, at [70], that it is for the trial judge to determine whether it is necessary to give a direction in respect of the standard of proof of what are, or might be, indispensable intermediate facts. In deciding whether such a direction is necessary, the Court said that the trial judge should consider whether the jury might reasonably regard certain facts to be indispensable intermediate facts, even if the judge does not. Importantly for present purposes, the Court also said, at [70] (in a passage relied upon by the appellant): "… In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting." 91 In Merritt, the Court considered, at [71], that there were relatively so few incriminating facts that it was incumbent upon the trial judge to identify for the jury the crucial factual matters and assist the jury in applying the legal rule requiring proof beyond a reasonable doubt of the Crown case to those facts. The Court continued that the trial judge should direct the jury: "… in particular … that if they [regard] any particular fact as being an indispensable link in the chain of proof, then that fact must be proved to their satisfaction beyond reasonable doubt before they could convict. We do not think that this was a case of such simplicity as to enable a general direction concerning the onus and standard of proof to suffice." 92 In Minniti v R, [2006] NSWCCA 30; 159 A Crim R 394; 196 FLR 431 a question arose as to how a trial judge ought determine whether a direction in respect of indispensable intermediate facts is necessary. Sully J, with whom Hoeben and Latham JJ agreed, referred, at [35], to the metaphorical description used by Dawson J in Shepherd distinguishing the case where the evidence consists of "strands in a cable" rather than "links in a chain". Sully J asked what were the principles upon which a trial judge could determine whether the case was one calling for "links in a chain" directions; or, rather, a case calling for "strands in a cable" directions. His Honour noted that the problem was a real one, as in Merritt itself, the Court, at [69], said that the case could reasonably have been considered either a "links in a chain" case or a "strands in a cable" case. 93 Sully J acknowledged that in such a case, it is easy to understand why directions dealing with both circumstances are required. His Honour's concern, however, was that that there was no clear statement of principle by reference to which a particular case could be categorised as a "links in a chain" case as distinct from a "strands in a cable" case. His Honour, at [42], drew assistance from what Hunt CJ at CL, with whom Sully and Levine JJ agreed, said in R v Taylor (Court of Criminal Appeal, 18 April 1995, unreported) in relation to the manner in which the topic of lies was treated in a particular case. The passage from Taylor is as follows: "The ground of appeal numbered 6B asserts that the judge misdirected the jury as to lies. In his written submissions, counsel for the appellant complained that the judge failed to identify the particular lies which could be considered by the jury as evidencing a consciousness of guilt, and that he should have directed them 'that, before they could use the telling of a lie as an independent proof of guilt, they would have to be satisfied as to the lie and its character beyond reasonable doubt'. The simple answer to the second complaint is that it was no part of the Crown case as put to the jury that they should use any lie as independent proof of guilt. And, where lies are used merely as evidencing a consciousness of guilt, as part of a circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt: Regina v Dellapatrona (1993) 31 NSWLR 123 at 150; Edwards v The Queen (1993) 178 CLR 193 at 210; Regina v Sandford (1994) 72 A Crim R 160 at 181; Regina v Small (1994) 33 NSWLR 575 at 596." 94 In R v Zaiter [2004] NSWCCA 35 Ipp JA considered, at [8], that if one particular factual matter was removed from the list of facts relied upon by the Crown to prove its case, one was "left with an empty shell" and, accordingly, a direction should have been given that that was an indispensable intermediate fact that had to be proved beyond a reasonable doubt. 95 The comments of Hunt CJ at CL in Taylor, relied upon by Sully J in Minniti say no more than that the trial judge must give careful consideration to the Crown case in order to determine whether a direction should be given to the jury in respect of intermediate facts. The analysis of the factual circumstances in Zaiter is an example of when a fact might properly be considered an indispensable intermediate fact in respect of which a direction is required. A trial judge has to be astute, therefore, to analyse the facts and circumstances of the particular case to determine whether a Shepherd direction should be given. 96 That this is so was emphasised by this Court recently in Davidson v R [2009] NSWCCA 150. Spigelman CJ, at [8], noted that in a case like Merritt where there were only two intermediate facts, it would not be " 'unnecessary' nor 'confusing' " to give a Shepherd direction. However, in a case where: "… there are numerous separate facts, of varying degrees of probative force, it could very well be confusing to do so. The prospect of confusion is a matter which has been emphasised in later cases. (See eg Minniti … at [45]; Hannes v DPP (Cth) (No 2) [2006] NSWCCA 373; (2006) 165 A Crim R 151 at [665].)" 97 We have already referred to Minniti. In Hannes Hall J, after referring to the comment by Dawson J that a Shepherd direction should not be given if it was "unnecessary or confusing to do so" (being the second bolded portion of the passage set out at [86] above), said, at [665]: "There were, no doubt, a number of reasons why Dawson J was careful to express himself in guarded terms. Such a direction may be "unnecessary or confusing", depending on what else the jury has been told and depending on the circumstances of the case. Further, however the Crown may have presented its case, one cannot be sure what process of reasoning a jury will necessarily follow and it may be difficult to determine whether the jury will treat a particular fact as "indispensable". As Dawson J noted, there is a useful metaphorical distinction drawn between evidence which may be understood to consist of 'strands in a cable', as opposed to evidence which forms 'links in a chain', links in a chain providing indispensable intermediate facts. Nevertheless, there may be no clear dichotomy between the two images in particular circumstances: see Merritt … at [69]." 98 In Davidson Spigelman CJ noted that having regard to these later authorities, the statement in Merritt at [70] may need to be reconsidered. His Honour then referred to Velevski v R [2002] HCA 4; (2002) 187 ALR 233; R v Hillier [2007] HCA 13; (2007) 228 CLR 618 and R v Keenan [2009] HCA 1; (2009) 83 ALJR 243. The relevant passages from those authorities bear directly upon the question whether the trial judge erred in this case in not giving a Shepherd direction and hence should be set out verbatim. 99 In Velevski Gleeson and Hayne JJ said, at [43]-[44]: "It was next submitted that, even if it was permissible to leave the alleged lie to the jury in the way it was, it was necessary, in the circumstances, to give the jury a direction that they could rely upon an intermediate fact as a link in a chain of reasoning only if satisfied beyond reasonable doubt of that intermediate fact. Stated in that form the proposition is legally accurate but its recitation to the jury would be of no assistance unless its application to this case were explained. How that could have been done in this case was not made clear. It was submitted that the jury may (but need not) have concluded that the telling of the lie settled any reasonable doubt that consideration of the other evidence tendered at trial allowed. If the jury followed this path, it would, so it was said, make the telling of the lie an indispensable intermediate fact. It was the possibility that the jury might reason in this way that called, so it was submitted, for judicial instruction about how it should be undertaken. The argument should be rejected. It proceeds from a premise about the way in which the jury might approach the task which is wrong. It assumes that the jury will consider the evidence in separate and isolated compartments. That assumption is not made because the evidence relates to different steps in a chain of reasoning, but solely because it suits the appellant's immediate forensic purposes to isolate one of the pieces of evidence as the critical element that will conclude the issue of guilt. Once it is accepted, as it was, that the telling of the lie was not necessarily an intermediate indispensable fact in this case, it becomes apparent that the jury had to consider the evidence as a whole. The lie was not a separate fact which, together with other facts, would form links in a chain of reasoning." (Citations omitted; emphasis original) 100 In Hillier, Gummow, Hayne and Crennan JJ (Gleeson CJ agreeing), said, at [46]: "… It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence." (Citations omitted) 101 Their Honours further stated, at [48]: "Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal." 102 Their Honours referred to Chamberlain v R (No 2) where Gibbs CJ and Mason J said, at [15] 539: "Similarly, in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider 'the weight which is to be given to the united force of all the circumstances put together': per Lord Cairns, in Belhaven and Stenton Peerage , cited in Reg v Van Beelen ; and see Thomas v The Queen and cases there cited" (Citations omitted) and to Plomp v R [1963] HCA 44; (1963) 110 CLR 234 where Dixon CJ said, at [5] 242: "All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. " (Emphasis as added by High Court in Hillier ) 103 In Keenan Keifel J noted at [126] that the "usual direction" given in a circumstantial evidence case that the accused could only be found guilty if no other inference favourable to the accused was reasonably open, was no more than an amplification of the principle that the prosecution must prove its case beyond reasonable doubt. Her Honour, at [128], observed that in Hillier the Court had said that a case was not to be considered piecemeal and added that it was of critical importance that all the circumstances established by the evidence be considered. Was a Shepherd direction required in this case? 104 The Crown contended that the appellant's motive for kidnapping and murdering Mrs Whelan was his desperate financial situation. It contended that his financial circumstances were such that they necessitated a desperate move and that desperate move was kidnapping Mrs Whelan for a ransom. It relied upon a large body of circumstantial evidence to prove that the appellant had kidnapped and murdered her. However, the Pajero evidence, the dot point evidence and the telephone call evidence were the three prominent factual circumstances upon which the Crown relied. 105 The appellant contended that these three areas of evidence were indispensable intermediate facts which required the judge give a direction that the jury had to be satisfied of each beyond a reasonable doubt before they could convict the appellant. ground 1(a). The appellant argued in the alternative that the jury had to be satisfied beyond a reasonable doubt of at least one of the three before being able to convict: ground 1(b). 106 As the appellant's case was developed in oral argument on the appeal, the emphasis was in respect of the Pajero evidence. That evidence, on the appellant's argument was the only evidence capable of demonstrating a physical connection between the appellant and Mrs Whelan. The appellant submitted that this was a critical indispensable intermediate fact in the jury's chain of reasoning in determining whether the appellant was guilty of kidnapping and murdering Mrs Whelan. The jury had to be satisfied beyond a reasonable doubt that Mrs Whelan left the front of the Parkroyal Hotel in the Pajero at 9:38 am on 6 May and the jury should have been so directed by the trial judge. 107 The Crown submitted that its case as presented at trial was that this was a "strands in a cable" case, not a "links in the chain" case and the trial judge had correctly so directed the jury. The Crown submitted that this case did not require a Shepherd direction. Rather, as was the case in Shepherd, itself grouping the evidence into separate categories was done as a matter of convenience. The convenience in doing so did not convert the case into one where a direction was required in respect of indispensable intermediate facts. Dawson J had referred to this in Shepherd when he said, at [16] 586: "Whilst it was possible to categorize the evidence in this manner and, no doubt, convenient for certain purposes to do so, it was not necessary for the jury to reach any conclusion upon the evidence in one category before considering the evidence in another. Indeed, the only proper course for the jury to adopt was to consider all the evidence together. Nor was it necessary for the jury to reach any particular intermediate conclusion of fact in making an inference of guilt on the part of the applicant, other than the obvious one, tantamount to an inference of guilt, that the applicant was engaged in a combination of the kind alleged against him. Of course, the jury could not properly have made that inference unless they were satisfied that, upon the whole of the evidence in all three categories, there was no reasonable explanation consistent with the applicant's innocence. It was appropriate that the jury should have been given a direction in those terms and they were given one. The case did not admit of any further direction upon the standard of proof required, save, of course, for the ordinary direction that the prosecution was required to prove its case beyond reasonable doubt." 108 The appellant contended, however, that a problem arose, because of the manner in which the Crown put its case to the jury, such that a Shepherd direction was required. Counsel for the Crown, having identified the appellant's alleged motive, said in his closing address to the jury on 15 May 2006: "It is the Crown submission to you that in this trial you have heard three completely independent bodies of evidence. The first body of evidence is the Pajero evidence; the second body of evidence is the dot-point notes; and their similarity to the ransom note; and the third body of evidence is the call from the Empire Hotel. If you are satisfied in relation to the Pajero evidence; namely, that it was [the appellant's] Pajero outside the Parkroyal Hotel, that is the end of the matter. You would have to convict him, because there is no other explanation for his vehicle outside the Parkroyal Hotel. Finished. If you are satisfied beyond a reasonable doubt that those dot-point notes contained his early thoughts about a kidnapping and a ransom note, that's the end of it. You would have to convict him. There is no other explanation for why he would have written such notes. If you are satisfied beyond a reasonable doubt that he made that call to Crown Equipment from outside the Empire Hotel on 23 May, that's the end of it: You would have to convict him, because there is no other possible explanation other than that he was the kidnapper. Now, you can look at those three bodies of evidence independently but you can also look at them all together and you can say to yourself: What an amazing body of evidence – three completely independent bodies of evidence that don't depend on each other, each of which inevitably and irrevocably points to the involvement of the accused in the kidnapping and death of Kerry Whelan. So, we submit to you that this is a classic example of a very strong circumstantial case. And a circumstantial case is a case that depends upon a whole lot of building blocks to make a wall. It has to be contrasted with a direct evidence case which, is evidence by a witness, 'I saw the accused committing the crime', or evidence that 'the accused admitted to me he committed the crime'. That's an example of direct evidence." 109 Prior to the trial recommencing before the jury on 16 May 2006, the Crown Prosecutor informed the trial judge that the appellant's counsel, Mr Dalton SC, had brought to his attention that in his address the previous day, he had stated that the jury had to be satisfied of the telephone call evidence beyond a reasonable doubt. Counsel for the Crown then sought to clarify to his Honour what the Crown's position was. He said: "… my intention in relation to all three bodies of evidence was to say that if they were satisfied beyond a reasonable doubt of any individual one of those three categories, that that would be sufficient to convict. It was not my intention to suggest to the jury that they needed to be satisfied of that piece of evidence beyond a reasonable doubt in order to convict, and I went on to address the jury on the totality of all the evidence. So, it was not my intention to suggest that that piece of evidence was one that required the direction from your Honour that they needed to be satisfied of it beyond a reasonable doubt before they could convict." 110 His Honour stated: "I didn't so understand it, Mr Crown and Mr Dalton. I wouldn't have expected the Crown to be directing the jury on matters of law as important as those." 111 The appellant contended that the Crown's statement to the jury demonstrated that it was in fact relying upon the three categories of evidence as indispensable intermediate facts, notwithstanding what the Crown said to the trial judge on 16 May (see [109]). Accordingly, it was submitted that the trial judge erred in the following passages of his summing up to the jury: "Mr Dalton says to you that you cannot be satisfied beyond reasonable doubt that Mrs Whelan was abducted by [the appellant]. I have told you the things you have to be satisfied about beyond reasonable doubt and that is one of them. You must be satisfied that [the appellant] abducted, detained Mrs Whelan. It is possible that you may find yourselves satisfied beyond reasonable doubt that she was detained in precisely the same way as is submitted to you by the Crown, that is to say, that [the appellant] drove her away at 9.38 and some seconds travelling eastwards and that within some time shortly after that she was detained because she became an unwilling passenger. It is not, however, necessary for you to be satisfied beyond reasonable doubt that that is precisely how [the appellant] went about the detention. What you must be satisfied about beyond reasonable doubt is that, by some manner and means, and certainly by, say, a quarter to four on the same afternoon, 6 May, [the appellant] detained Mrs Whelan. I say a quarter to four because that is about the time Mrs Whelan was due to arrive at her husband's office at Smithfield for the journey to the airport and to Adelaide and clearly, if she was kidnapped, she had been kidnapped by then. Both counsel have said things to you in their closing addresses that may possibly lead to a misunderstanding of the law. I have told you that you are to judge this case on the evidence, and that means all the evidence. The Crown submitted to you that you could be satisfied beyond reasonable doubt, on the evidence of the events at Parramatta on 6 May that [the appellant] was the kidnapper. Whether you can be satisfied beyond reasonable doubt about that conclusion on that evidence alone, I do not know, and I express no view about it. The point I wish to make now is that what the Crown said to you may have given you the impression that you can properly find [the appellant guilty only if this evidence, standing by itself, is sufficient to prove beyond reasonable doubt that [the appellant] was the kidnapper. That is not the law. You are not restricted to any piece of body of evidence, when deciding whether the Crown has proved the guilt of [the appellant], whether the Crown has proved any essential element on either of the charges. You should judge the case on all the evidence. In the same way, Mr Dalton said to you that he understood that I would be directing you that you were not restricted to a consideration of the Parramatta evidence in deciding whether the Crown had proved the guilt of [the appellant] and he went on to refer to two other bodies of evidence; namely, the evidence of the telephone call of 23 May and the evidence of the dot-point notes found at [the appellant's] house. Last Wednesday, Mr Dalton said this [at Tr 2328]: 'Apparently the trial will be left to you on the basis that, even if you cannot be satisfied, which in our submission you clearly cannot be, that Mrs Whelan had left by way of that Pajero outside the Parkroyal Hotel, you could still rely upon other material in the nature of the dot-point notes and/or the phone call.' Later on he said this [at Tr 2361]: 'Still, as I understand, the matter would be left to you, even if he was not at Parramatta, even if it was not his vehicle and it was not there at Parramatta on the morning of 6 May at 9.38, we can still convict on other evidence and that other evidence will be the dot-point notes on the one hand, and/or the telephone call on 23 May.' Last Friday Mr Dalton – and I think this Monday – made a number of references saying that the Crown relied on 'those three flawed bricks,' referring to the Parramatta evidence, the telephone evidence and the dot-point note evidence. They were not correct statements of the law. You are not restricted, in deciding whether the Crown has proved its case on kidnapping or murder, to evidence of events at Parramatta or the dot-point notes, or of the telephone call to Crown Equipment, or to any two of those bodies of evidence, or even to all three. In coming to your decision on any element of the charge, you are to take into account every piece of evidence in the case that, in your view, is capable of bearing upon your decision, You already know that when you are assessing the evidence of any witness you are not required to consider the evidence of that witness in isolation. You judge it by reference to all the relevant evidence in the case. The same principle applies here and you will understand, I am sure, that there are several other pieces of evidence upon which the Crown relies, other than the three pieces of evidence to which I have referred. There is the telephone call on 7 April. There is the visit on 16 April. There is the existence of the street directory found in the Jaguar at [the appellant's] house. I will come to that one shortly." The bolded portion above contains the specific error of which the appellant complained, although in the passage as a whole, his Honour was giving a very specific direction that this was not a case where the jury had to be satisfied of one or more intermediate facts beyond a reasonable doubt. That part of the direction which refers to Mr Dalton's address and his Honour's comment that that part of the address " were not correct statements of the law " is the subject of ground 2 of the appeal. 112 The appellant submitted that the trial judge erred in giving this direction, because the three intermediate sets of fact, and the Pajero evidence in particular, were of such importance in the Crown case, that all other matters were subsumed. In short, the appellant's submission was that the Crown case was not based upon a general circumstantial case constituted by a combination of all of the evidence. Accordingly, a specific "Shepherd direction" was required in respect of each of the three intermediate sets of facts, which on the appellant's submission, were indispensable intermediate facts upon which the Crown case depended. 113 This was the appellant's second trial in respect of these charges. The issue raised by the appellant's submission has its genesis in the first trial. At the first trial, the trial judge had rejected the appellant's contention that the Crown case was based upon the proof of three indispensable intermediate facts, or alternative proof of at least one of three indispensable intermediate facts. His Honour thus rejected the appellant's application at the first trial that a Shepherd direction be given. 114 The present trial (the second trial) proceeded on the basis that certain rulings given in the first trial, including that relating to the Shepherd direction, were binding in the second trial. However, the appellant's counsel at trial considered that the terms of the Crown's address to the jury in the passage referred to above at [108] had changed the landscape, such that a Shepherd direction was required. He thus made application to the trial judge that such a direction be given. 115 The terms of the direction sought by Mr Dalton, and which were set out in a document which became MFI 106, were as follows (the reference to the accused is a reference to the appellant): "Yesterday I referred to Mr Dalton's submissions regarding the three major aspects of the Crown case from which the Crown asks you to infer guilt. I said Mr Dalton was incorrect at law to only refer to those three aspects of the Crown case being the only three matters from which you could infer the guilt of the Accused. What I said in that regard was not quite correct. Mr Dalton was in the course of these submissions referring to the fact the Crown leaves its case to you upon three independent bodies of evidence as follows: i) Firstly, what I would loosely call the Pajero evidence, but which includes the Accused's visit to the Whelan's house on 16 April; his call the previous week on – I think it was 7 April; the evidence about the car; the ransom note, and all the evidence surrounding those pieces of evidence. ii) The second area of evidence concerns the dot point notes and the other material found at the Accused's home at Hillydale . iii) And the third area of evidence is the call to Crown [Equipment]. 'The jury could be satisfied beyond a reasonable doubt of any one of those, but not be satisfied of the other two areas. Alternatively, the jury could look at all of the evidence in combination from each of those three different areas and be satisfied beyond a reasonable doubt that it couldn't possibly be a coincidence, but that it is consistent only with the guilt of the Accused; without being satisfied of each or any of those three individual areas.' (Tp 2130; 10/10/05) Therefore the Crown suggests you could infer the guilt of the Accused from either one or a combination of those three bodies of evidence finding either Kerry Whelan left the front of the Parkroyal hotel on the morning of the 6 th of May 1997 at 9.38.45/46 by way of the Accused's Pajero; and/or the dot point notes are early drafts of the ransom note and/or the kidnapping plan; and/or the Accused made the phone call to Crown Equipment at 9.21am on the morning of the 23 rd of May 1997. Mr Dalton says there are equally available inferences consistent with the innocence of the Accused with respect to all three of those bodies of evidence. That Ms Whelan did not leave the front of the hotel by way of the Accused's Pajero, the dot point notes are equally consistent with unrelated general notes in the Accused's working and/or private life; and that someone else most likely a police officer and in particular Mr Duncan made the phone call on the morning of the 23 rd of May 1997. And accordingly Mr Dalton says you should acquit the Accused. Mr Dalton also says if you are unable to make a positive finding with respect to any one of those bodies of evidence upon which the Crown contends you could infer the guilt of the Accused, you should exercise caution in utilising the evidence with respect to that body of evidence which he then suggests becomes what he terms a 'flawed brick' when considering the evidence on one or both of the remaining topics. You have heard his arguments in that regard and you will no doubt consider them carefully in the context of the evidence. What I wish to direct you at law is this:- that any item of evidence adduced in the trial is available to you to consider in the context of any of those three major aspects of the Crown case and no item of evidence is limited to any one category albeit you would ultimately have to be able to infer the guilt of the Accused upon at least one or upon a number in combination of those three major aspects of the Crown case before being able to convict the Accused." 116 The trial judge rejected Mr Dalton's application and reiterated his ruling of the first trial, that there was "no Shepherd intermediate fact". 117 At the end of his summing up, the trial judge asked the Crown and Mr Dalton whether they had any application to make in respect of the summing up. Relevantly, for present purposes, the Crown prosecutor indicated that his Honour had not specifically mentioned the three bodies of evidence, that is, the Pajero evidence, the dot point evidence, and the Empire Hotel telephone call, that is, that his Honour had not directed the jury that they did not have to be satisfied of any one of those matters in order to convict. The Crown prosecutor requested that his Honour remind the jury that although the Crown had identified three separate bodies of evidence, they did not have to be satisfied of any of them beyond a reasonable doubt. Rather, their satisfaction beyond a reasonable doubt had to be of the elements of the crimes. His Honour indicated that he would deal with that matter. 118 Mr Dalton, on behalf of the appellant, again sought a direction in the terms of MFI 106. He submitted that as the appellant understood the Crown case, it was that the Crown relied upon three independent bodies of evidence, which either alone, or in combination, could be used by the jury to prove the elements of the offence. He submitted that one or more of those matters had to be established beyond reasonable doubt before the jury could convict. 119 His Honour responded that he did not understand that the Crown had ever limited its case in that way. There was further discussion as to what the Crown case was. Again, Mr Dalton asserted that the Crown case, as was apparent from the Crown prosecutor's address to the jury, was that the jury could be satisfied of the appellant's guilt on the basis of one or more of the three individual matters. Mr Dalton once more requested that the directions in the form of those set out in MFI 106 be made. His Honour again rejected that application. It is apparent that his Honour did so, at least in so far as the Pajero incident was concerned, because the Crown case was that Mrs Whelan had been detained by about 4 pm that day, not at about 9:38 am, and not necessarily in the Pajero. 120 The jury was recalled and his Honour gave the following and final direction to the jury in these terms: "Ladies and gentlemen, I read to you for the most part from the portion of the summing up about the circumstantial case, what a circumstantial case is and how you may reason and how you must not reason when reasoning by inference. I omitted to conclude what I said to you before, and I will say that to you now. I was then about to sum up the facts of the case to you – I am not going to do that now – but this is the context in which I said those words. 'As I sum up I will review the circumstances in which the Crown submits combine to prove the guilt of [the appellant].' And I went on to say: 'You may care to regard those circumstances like strands in a rope. If one piece of evidence does not satisfy you the strand breaks but the rope does not necessarily break; in other words, the Crown can still prove its case even if it fails to prove one or more of the circumstances it relies on. The individual circumstances do not have to be proved beyond reasonable doubt.' Now, I listed for you in my summing up a fairly large number of circumstances the Crown relied on. They did include three, what you might think, fairly important circumstances in the scheme of things. Both counsel have had a lot to say about them. Those circumstances were the events at Parramatta; the dot-point notes, in combination with the ransom note; and the telephone call on 23 May. The Crown does rely on those three, of course, but the Crown has not restricted its case. It does not have to satisfy you beyond reasonable doubt about any of those three. What is has to satisfy you about beyond reasonable doubt is that the ultimate conclusion about the guilt of [the appellant], and that it can only do if it satisfies you beyond reasonable doubt about each of the elements of the charge – those six elements – those are the things that must be proved beyond reasonable doubt." 121 On the appeal, the appellant refined his argument submitting that the trial judge erred in not giving a direction to the jury that if the jury was going to act on the Pajero evidence, then it had to be satisfied beyond reasonable doubt of the facts alleged. Those facts were that not only had Mrs Whelan arranged to have a meeting with someone at the Parkroyal Hotel at 9:30 am on 6 May 1997, but that she had got into the Pajero, which was being driven by the appellant and drove away with him at 9:38 am and was thus thereby detained. 122 The appellant contended that that direction was necessary, because of certain other aspects of the evidence. Those features were that: no one saw Mrs Whelan get into the Pajero and that there was no clear evidence that Mrs Whelan got into the Pajero immediately after she exited the car park. In this regard, although the Crown contended that the CCTV video images showed a person in the passenger seat of the car at the time it was being driven away from the hotel, the appellant contended the images were insufficient to establish this at any level of proof. Indeed, it was the appellant's case that there was no passenger in the car when it was being driven away. 123 The appellant also relied upon the evidence of sightings of Mrs Whelan later than 9:38 am. This evidence included that of Mrs Carter, who said she saw Mrs Whelan in Parramatta sometime between 10 am and 10:15 am; the evidence of Mr Elliott, who gave evidence that he had seen a woman whose description accorded with that of Mrs Whelan, walking up the ramp of the hotel with a younger man; the evidence of Ms McMurray, who said that she saw a woman fitting Mrs Whelan's description walking along Smith Street Parramatta at 9:40 am on 6 May; and the evidence of an airport officer, who thought she saw Mrs Whelan board a plane in Brisbane. The appellant submitted that the evidence of these witnesses were impediments to proof that Mrs Whelan had driven off with the appellant at 9:38 am, highlighting the need for the Shepherd direction. 124 Although the main focus of the appellant's submission on the appeal was in respect of the Pajero evidence, the appellant also submitted that the jury could not be satisfied beyond reasonable doubt that the appellant was in the public telephone box outside the Empire Hotel at 9:21 am on 23 May when the telephone call was made to Crown Equipment by the kidnapper. The appellant contended there was a significant body of evidence from which the jury could infer that the appellant had insufficient time to travel from the phone booth and to arrive back at Hillydale between 9:51 and 9:55 am. Indeed, senior counsel for the appellant submitted on the appeal that it was unlikely in the extreme that the appellant could or would have made that phone call. The appellant's case was that he had used the public telephone box outside the Empire Hotel to call his solicitor, between 9:20 am and 9:30 am. 125 Likewise, the appellant contended that the Crown relied upon the dot point evidence, and the meaning that it ascribed to them, to demonstrate that the appellant had been planning to kidnap Mrs Whelan. As such, this evidence was an indispensable link in the chain of reasoning. That was especially so if the evidence was considered in isolation. Accordingly, a Shepherd direction was also required in respect of this evidence. The appellant acknowledged that there was other circumstantial evidence that supported the meaning of the notes as contended for by the Crown. That did not obviate the need, however, on the appellant's submission for a Shepherd direction. Did the trial judge err in not giving a Shepherd direction? 126 As previously mentioned, the trial judge had ruled at the first trial that this was not an appropriate case for a Shepherd direction. In dealing with that question at the first trial, his Honour had said, during argument: "You can test that, can't you, in this way. Take away all the evidence of any Pajero in Parramatta. Let's suppose the cameras were off that day. Let's suppose nobody knows anything about Mrs Whelan, except that she has a 9.30 appointment in her diary. She went to Parramatta about 9.30. She wasn't heard from again. There is evidence that [the appellant] contrived a telephone conversation with Mr Whelan in which he ascertained he was going to be absent on Wednesday. On a Wednesday he went to Kurrajong. There he made some arrangement by inference, causing Mrs Whelan to make that remarkable statement that she did to [Ms Peters]; that on 23 May [the appellant] went to a telephone booth in Goulburn and telephoned Crown Equipment uttering words that must have been – could only have been known by the kidnapper, why isn't that case – why can't be [sic] convicted on that case?" 127 One could add to the matters to which the trial judge adverted in this exchange the dot point evidence found at the appellant's property and which were in the appellant's handwriting. Notwithstanding that the appellant contended that there were other rational interpretations of those notes inconsistent with guilt, it is difficult to conceive what those meanings might be. Perhaps the most that can be said is that there was no express reference in the notes to Mrs Whelan. 128 The point is, however, as his Honour's comments to which we have just referred make apparent, this was not a case that was dependent upon the Pajero evidence (or the other two bodies of evidence) being proved beyond a reasonable doubt. There was a large body of evidence upon which the jury could be satisfied beyond a reasonable doubt that the appellant abducted and later murdered Mrs Whelan. Those various matters have been canvassed and do not benefit from repetition. The trial judge's illustration is sufficient to demonstrate the point. 129 There was considerable forensic importance to the appellant in having a Shepherd direction given, at least in respect of the Pajero evidence. If that was an indispensable intermediate fact of which the jury had to be satisfied in order to be satisfied of the appellant's guilt, then the evidence of the later sightings of Mrs Whelan took on a particular significance. If the jury believed that any one of those sightings was credible, in the sense of being a sighting of Mrs Whelan, then the jury would have been required to have a reasonable doubt as to the Pajero evidence, and thus of the guilt of the appellant. 130 However, an acceptance that those later sightings, particularly those on 6 May, were sightings of Mrs Whelan, was consistent with a case that she was abducted, not at about 9:38 am, but at some later point of time, most likely before 4 pm. An acceptance that Mrs Whelan was sighted at Brisbane airport some days later would be consistent with a case that she was murdered sometime later than 6 May. The effect of a Shepherd direction in respect of the Pajero evidence would have deprived the jury of a consideration of these possibilities, which were clearly open on the evidence and were part of the Crown case. 131 The appellant did not, at trial, contend that a Shepherd direction should be given in the alternative, that is, that if the jury proposed to act upon the Pajero evidence, they had to be satisfied of that matter beyond a reasonable doubt, but that even if they were not so satisfied, they could rely upon a combination of facts to infer guilt. Rather, the appellant specifically sought a direction in terms that the jury: "… would ultimately have to be able to infer the guilt of [the appellant] upon at least one or upon a number in combination of those three major aspects of the Crown case before being able to convict [the appellant]" (being the final part of the direction sought in MFI 106) 132 As already stated in these reasons, the jury did not have to be so satisfied in relation to the Pajero evidence. The trial judge's direction to the jury made it plain to them how they could and should approach this evidence. There was a combination of circumstances that had to be considered. His Honour explained to the jury (see [111] above) that although they may be satisfied beyond a reasonable doubt that Mrs Whelan drove away with the appellant in the Pajero at about 9:38 am and was detained by him shortly thereafter, in that she became an unwilling passenger, they did not have to be satisfied that was how the appellant went about the detention. If they did not accept that she was detained at about 9:38 am, they had to be satisfied beyond a reasonable doubt that she was detained by the appellant against her will at some later time, and probably before 4 pm that day. 133 His Honour's direction was correct. The Crown case was not confined to the Pajero evidence in the sense that it was an indispensable intermediate fact. Although the primary thrust of the Crown case was that the Pajero evidence was the most likely means and time at which Mrs Whelan was abducted, it relied upon all of the circumstances of the case, including circumstances that had no direct link with the Pajero evidence or the other two main bodies of evidence. That other evidence included the appellant's telephone call to Mr Whelan on 7 April; the appellant's visit to the Whelans' property on 16 April; the fact that the appellant had a financial motive for the kidnapping; the evidence concerning the Canon typewriter; and the finding of the street directory in another of the appellant's cars. This evidence varied in strength (especially that relating to the street directory, which might have been thought to be a weak piece of evidence). 134 Even if one or more of the three independent bodies of evidence was not sufficient, the inference of guilt could be drawn from a combination of the range of circumstantial facts of which the Crown adduced evidence. The broader case was not abandoned by the Crown, nor did it undergo any mutation in the Crown's address to the jury, considered in its entirety, in which the Crown reminded the jury of the larger body of evidence. The Crown case at all times remained one where individual facts gained cogency from other facts in the case. In particular, as the trial judge directed the jury, the appellant could have been detained much later than shortly after 9:38 am, which was a requisite finding on the Pajero evidence. The inference that she had been kidnapped arose from the combination of circumstances: that she did not meet her husband as previously arranged; the receipt of the ransom note; and the fact that it was out of character for her to disappear of her own accord. 135 The evidence which established the death of Mrs Whelan was as follows. The nature of the relationship between Mr and Mrs Whelan and between Mrs Whelan and her children was such that she would not have disappeared of her own accord. Mrs Whelan's plans for her future were inconsistent with her leaving unexpectedly and voluntarily, without notice. There has been no contact by Mrs Whelan with any family or friends since 6 May 1997. Her bank accounts were not accessed following her disappearance and no significant withdrawals had been made just prior to her disappearance. There were no Department of Immigration or Medicare records accounting for her following her disappearance. Although there were possible sightings of Mrs Whelan after 9:38am on 6 May 1997, there was no sighting by anyone who knew her or could definitively identify her. 136 In the Court's opinion, this was not a case where a Shepherd direction was required. Indeed, the giving of such a direction may well have confused the jury. The jury was clearly directed that they had to be satisfied of the guilt of the appellant beyond a reasonable doubt. They were directed that if they could be satisfied on the basis of the Pajero evidence alone, that is that if they were satisfied beyond a reasonable doubt of that evidence, they could convict. However, the trial judge directed them that they did not have to be so satisfied of the guilt of the appellant. Their ultimate task was to consider the whole of the evidence. There was no error in the trial judge's directions and grounds 1 and 2 should be dismissed. Ground 10: the unsafe and unsatisfactory ground 137 The appellant submitted that the verdicts are unsafe and unsatisfactory insofar as they are unreasonable and cannot be supported having regard to the evidence. This ground of appeal is based upon the statutory requirements specified in the Criminal Appeal Act 1912, s 6(1). That section provides: " 6 Determination of appeals in ordinary cases (1) The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that 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 the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 138 In M v R [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ stated at [7] 493: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty … But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations …" (Citations omitted) 139 Their Honours then explained, at [9] 494: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence …" (Citations omitted) 140 The principles in M v R were re-iterated in MFA v R [2002] HCA 53; (2002) 213 CLR 606: see especially at [25] 614, [59] 624. See also R v Markulevski [2001] NSWCCA 290; (2001) 52 NSWLR 82; (2001) 125 A Crim R 186. 141 To a large extent, the success of this ground depends upon the determination of grounds 1 and 2. As the appellant conceded, the Crown case was much weaker if any of the three independent bodies of evidence had to be proved beyond reasonable doubt. 142 The corollary of this is that if those matters did not have to be established beyond reasonable doubt and the Crown garners cogency from the whole of this evidence, then this ground itself lost its force. Many of the factors relied upon by the appellant in support of this ground were directed to undermining the Crown case in respect of those three bodies of evidence. However, in adopting this approach, the appellant, perhaps unwittingly, reinforced the correctness of the trial judge's approach in refusing to give a Shepherd direction and demonstrated why the case was one that was properly approached by looking at the whole of the evidence. The following analysis of the evidence reveals why this is so, particularly in relation to the Pajero evidence. The Pajero evidence 143 The evidence regarding the Pajero was as follows. A two-tone two-door Pajero with a dusty rear window with wiper marks was recorded by security cameras pulling up outside the Parkroyal Hotel between 9:01 am 9:01:24 am on 6 May 1997. The appellant was in possession of a Pajero fitting this description at the relevant time. The likelihood that the appellant's vehicle had a dusty rear window could be inferred from the fact he lived on a rural property. Mrs Whelan left her vehicle in the Parkroyal Hotel carpark just before 9:38 am and she never recovered her vehicle, which was located that afternoon in the hotel car park. At 9:38:45 am the two-tone, two-door Pajero, seen earlier at 9:01:24 am, was recorded pulling out from the kerb lane just to the west of the car park ramp and proceeding in an easterly direction down Phillip Street. There was CCTV footage that would have enabled the jury to conclude there was a passenger in the vehicle when it drove away. This particular type of vehicle was rare and police had contacted the majority of Pajero owners to exclude their vehicles from the scene. 144 This evidence was strong circumstantial evidence that the appellant had arrived at the car park shortly before Mrs Whelan for the purposes of meeting her as previously arranged and that they in fact did meet and drove away together. The telephone call evidence 145 The Crown case in respect of the telephone call was that by 23 May, the appellant was under incredible pressure and because of that pressure, he made a serious mistake by going to Goulburn and making a call to Crown Equipment. The appellant sought to resist the inference that he had made the telephone call by contending that he could not have made the telephone call at 9:21 and arrive back at Hillydale at 9:55 am (give or take a couple of minutes). He also contended that other factors pointed to the unlikelihood of him making the call. 146 The evidence that was directed to establishing that the appellant made the telephone call to Crown Equipment was as follows. On 23 May, the appellant had borrowed a motor vehicle from his neighbour, Mr Broadhead, as the appellant's vehicles had been confiscated by the police. The appellant had driven a quad bike to Mr Broadhead's property and then borrowed Mr Broadhead's vehicle to travel to Goulburn. The appellant left Mr Broadhead's property at 8 am, or possibly a minute or two thereafter. By 8:31 am, the appellant had arrived in Goulburn, parked his car outside Liquorland, gone into Liquorland and made a purchase of beer. The cash register docket showed that a purchase of beer was rung up at 8:31 am. 147 At about 9 am, the appellant went to the public phone outside the Empire Hotel and telephoned his solicitor. The solicitor's record of that call showed that it was the second telephone call received by the office on that day. The evidence established that 10 calls were received by the solicitor's office between about 9 and 9:30 am. That inference was derived from the fact that the receptionist said that the office opened at 9 am and she was on time. The person who was recorded as having made the tenth call, Jenny Elliott, gave evidence that she had made her call to the solicitor at about 9:30 am. 148 The Crown asked the jury to deduce that during this period, telephone calls to the solicitor's office were made approximately every three minutes. On that basis, the appellant would have made his call to the solicitor at about 9:06 am. If telephone calls for the entire day were averaged out, a call was made to the solicitor's office every four minutes. On that basis, the appellant would have rung the solicitor's office by about 9:08 or 9:10 am. 149 It was the Crown case that the appellant made the call to the solicitor to create an alibi. The appellant's case was that he had made a telephone call to his solicitor from outside the Empire Hotel, sometime between 9:20 and 9:30 am. 150 The call to Crown Equipment was made from a public telephone outside the Empire Hotel in Goulburn at 9:21 am. The Crown asked the jury to infer that the appellant believed that telephone calls from public telephone boxes could not be traced. That was not in fact the case, and the call to Crown Equipment had been traced to the telephone box outside the Empire Hotel. 151 The appellant submitted that the content of the telephone call to Crown Equipment was such that it was unlikely that it was him who called. It was submitted that if, as the Crown alleged, the telephone call was made because the appellant was desperate to get the police and media "off his back", then he may as well have rung and invited Mr Whelan to come to Hillydale with the $1 M, and then let Mrs Whelan go. On the appellant's argument, the concept of the appellant making such a phone call at all was extremely odd. The appellant also contended that had he made the telephone call, then it was probable that the receptionist would have recognised his voice, as he had worked at Crown Equipment a few years earlier. This risk pointed to the unlikelihood that he had made the call. The appellant also submitted it was unlikely he would have made the call, because he would have anticipated that he would have been followed by the police, who were watching his movements at that time. 152 The appellant's major challenge to the inference that he made the telephone call to Crown Equipment related to the time it would have taken the appellant to drive from the Empire Hotel to Hillydale. If it was assumed that the appellant left the phone booth at 9:22 am, he had to walk to the car park and then drive to Hillydale. The police timed his return to Hillydale at sometime between 9:51 and 9.55 am. There was a range of evidence as to the time it took to drive from Goulburn to Hillydale. Superintendent Bray had driven that route in 29.5 minutes. There had to be added to that time the time taken to get from the phone booth to his vehicle and also the time to get from the front gate of Hillydale to the homestead. In total, on Superintendent Bray's exercise, the time involved was 32.5 minutes. 153 Mr Broadhead gave evidence that it usually took him 25 minutes to travel from his property to Goulburn. Mr Broadhead lived about four and a half minutes away from Hillydale, although it is unclear on the evidence whether his property was closer to Goulburn than Hillydale. Mr Cooper gave the same evidence, saying that it took 25 minutes if he was in a hurry, but that normally, the journey took about half an hour. Likewise, it was not apparent whether Mr Cooper's property was closer to Goulburn than Hillydale. There was other evidence that the weather was inclement at the time and that in those circumstances, the journey could take 45 minutes. Detective Crouch confirmed this time in such conditions in his evidence at trial. 154 Subject to the question whether it was raining, the time that it took the appellant to travel from Goulburn to Hillydale ranged from 9:24 to 9:51 am (27 minutes) to 9:24 to 9:55 am (31 minutes). The allowance of two minutes to get to the car from the telephone box was an estimate only and it could have taken a little longer, or even a little less. If the time taken was 31 minutes, that is not so far from the time estimate given by Superintendent Bray. However, if the time taken was closer to 27 minutes, it was not inconceivable that the appellant could have done the trip in that time. Very little by way of increased speed would have been involved. 155 The appellant placed some emphasis upon the weather being inclement, which would mean that the time taken would be much longer. However, Mr Broadhead said the weather was fine. The dot point evidence 156 The Crown case was that the dot point evidence was preparatory work for the kidnap plan and the ransom note. The Crown relied upon the similarities between the dot point evidence and what actually happened in the kidnapping. The Crown also relied upon the correlation between the dot point evidence (at [51]) and the ransom note (at [53]). Particular emphasis was placed upon the command in the ransom note that the police not be brought in by Mr Whelan (item 2 in the first note); as well as the advice to the family of the kidnapping and the ransom demand in the note (item 2 in the second note); that instructions were given as to how to proceed once the ransom was got together (item 4 in the second note); that the only way Mrs Whelan would be returned was by compliance with the ransom note (item 4 in the first note); and the instructions for the delivery of the money (item 5 in the second note). Other circumstances relied upon by the appellant 157 In further support of his ground of appeal that the verdict was unsafe and unsatisfactory, the appellant argued that he could not have been in Parramatta at 9:38 am on 6 May, because he had telephoned his neighbours, Mr and Mrs Cooper, on a UHF radio, between 6 and 8 am on 6 May. It was agreed that if the call was in fact made on 6 May and if the UHF radio was used, the call could not have been made from Parramatta. 158 The background to that telephone call is as follows. Mr Cooper's son was a forester and an appointment had been arranged for him and another forester to inspect a portion of the appellant's property, known as Rabbit Ears, to see whether it was suitable for planting pine trees. That appointment was to be on 6 May. 159 On Sunday, 4 May, the appellant went to the Coopers' house. The Crown contended that the appellant's purpose in going to the Coopers' house on 4 May was to inform them that he would not be able to attend the inspection with the two foresters. However, the Coopers' evidence did not support this thesis. It was Mr Cooper's recollection that the appellant had brought over some material for photocopying, which he did from time to time. Mrs Cooper did not overhear any conversation between the appellant and Mr Cooper, but confirmed the appellant sometimes did photocopying at their house. Both Mr and Mrs Cooper said that during this visit, the appellant told them his back was hurting him badly and that he could not sit down. Both gave evidence that he stood up whilst speaking to them. There was other evidence that the appellant had a long-standing back condition. 160 The Crown case was that the appellant either did not have a bad back, or a back condition of any severity as at 4 May, because on 5 May, he drove into Goulburn and bought some beer. It was also part of the Crown case that the appellant travelled to Sydney sometime on 5 May, which explained why he did not answer his telephone when Mrs Cooper called that day to let him know that she and Mr Cooper had inspected Rabbit Ears earlier that day. The appellant argued that the mere fact he had a bad back did not mean he was totally incapacitated and he was likely to have been doing something on the property when the Coopers telephoned. 161 The Crown also submitted that the appellant's claim that he had a back condition was part of the deception he was creating at this time. The Crown relied on the fact that, although the appellant had requested a prescription for anti-inflammatory medication from his doctor, he did not pick up the prescription, nor was it ever filled. The Crown suggested that the request for the prescription was another attempt by the appellant to provide a smokescreen for his movements and, in particular, to provide a reason for not being able to go to Rabbit Ears on the morning of 6 May as had previously been arranged. 162 That brings the chronology back to 6 May and the appellant's contention that he made a telephone call to the Coopers between 6 and 8 am on that morning. The Crown's position was that there was no telephone call that morning and that this too was an attempt by the appellant to create a false alibi. This, on the Crown's submission, was apparent from the fact that the appellant did not raise the call in his Record of Interview with the police on 21 May 1997, nor did he refer to it in his next interview with the police on 15 June 1997. 163 The Crown contended that Mrs Cooper was mistaken in respect of receiving a call from the appellant on 6 May and said that the appellant had advised the Coopers of his inability to keep the appointment when he visited them on 4 May. At trial, Mrs Cooper gave evidence that on 6 May, she received a call from the appellant over their UHF radio, during which he told her he would not be at Rabbit Ears as arranged. She said she received the call at breakfast time, which could be any time between 6 am and 8 am. Mrs Cooper's statements as to when this telephone call occurred varied. In her police statement dated 13 August 1997, she was unsure whether such a call had been received on 6 May, but thought that was when the appellant had telephoned her. At the committal in December 1999, she said she didn't think she had spoken to the appellant on 6 May, although her evidence at that time was not clear. In a television interview in August 1997, she said the appellant had made the telephone call on 6 May, between 6 and 9 am. The Crown contended that Mrs Cooper's evidence was unreliable and the jury should not accept her evidence. 164 In further support of its position, the Crown relied on a telephone call by the appellant to Mr Cooper on 8 August 1997. The Crown and the appellant placed different interpretations on that telephone call. The Crown contended that it is apparent from the terms of that call that the appellant planted in Mr Cooper's mind that he had rung the Coopers on 6 May and that his evidence was thereby contaminated. For his part, the appellant contended that the conversation supported his case that Mr Cooper spontaneously recollected a call being made on that day. The transcript of the telephone call of 8 August was in evidence (Exhibit CY) and after introductory greetings was, relevantly, as follows: (" V1 " refers to Mr Cooper, " V2 " to the appellant) "V2: … Mate, just a quick question for you. Do you remember the day that, um – remember we were talking about putting in the pines over here up on that shaly stuff? V1: Yeah. V2: Do you remember, um, your son and a mate of his – well, it was up from Canberra, and they came across and had a look? (Pause) V1: That'd be Neil and Dave. V2: Yeah, Neil and Dave. V1: Yeah. V2: That's right. Do you – you remember that don't you? V1: I remember it, yeah, but I wouldn't know the date. V2: Well, mate, it was in the middle of your shearing from memory. V1: Well Neil was working all the time at the shearing. … V2: Mate, is there any way you can remember what that date was? V1: No, not unless … V2: All I'm thinking is, mate, I've got a feeling it was around a specific date and I'm just wondering whether if I could find – whether you rang me that day. Apparently Telecom keep records of local calls but they just don't send them out. I'm just wondering if you make requests for them and so on: you know what I mean? V1: What day was – that would be in May. V2: Yeah, mate, it was early May. And, mate, I've got a feeling it was the sixth of May that we spoke – that you rang me. (Pause) V1: Oh, I've got it in the diary. V2: Yeah? V1: 'Bruce Burrell, Rabbit Ears.' V2: What's 'Rabbit Ears'? V1: That's the name of the paddock. V2: Oh, is it. V1: That's what we used to call it. V2: What's the date on that? V1: The sixth of May. V2: You're fuckin' joking? Are you serious? V1: Yeah, that's what I got in my diary, but I don't know whether we went down to see it that day or not. V2: Kevin, do me a favour. V1: Yeah. V2: Will you make sure you hang on to that? V1: Yeah. V2: Ah, and mate, don't tell anybody – I, I'll come over and see you over the weekend. V1: I got 'late morning.' V2: Late morning? V1: '… Di and Phil', and 'Bruce Burrell, Rabbit Ears.' So that'd be when Neil and Dave come down. V2: Mate, can you … V1: On the fifth, the Monday … V2: Yeah? V1: I've got down in my diary 'Check the Rabbit Ears paddock.' V2: Right. V1: So I would have gone down and checked it first. V2: Right. So you saw it on the day before? V1: Yeah. I, I went down and drove round it. V2: Yep. V1: … before Neil had a look at it. V2: And Neil had a look at it the next day, and that was the day that you rang me and said that – you know mate, look, this is all making some sense. Look, Kev, can you hang on to that? V1: Yep. V2: And, mate, just, just keep it to yourself if you wouldn't mind. V1: Yeah, righto. I – that's all I got in the diary, so … V2: Mate, that's fine. But, look, mate, I'll come over and see you over the weekend. V1: Righto. … (Call concluded)" 165 The Crown's position at trial and on appeal was that at most this transcript revealed that Mr Cooper had a reference in his diary relating to the intended visit to Rabbit Ears by the two foresters on 6 May. The appellant relied on this evidence as demonstrating that Mr Cooper recollected the telephone call. Either interpretation could be open. The jury was required to assess the contents of this telephone call along with the other evidence, particularly the evidence of the Coopers. We have already referred to Mrs Cooper's evidence. So far as Mr Cooper's evidence was concerned, the Crown submitted to the jury, correctly, that the only clear recollection that Mr Cooper had of 6 May was that he was certain that the appellant did not attend at Rabbit Ears in accordance with the arrangement that had been made earlier. 166 However, even if the appellant had made a call to the Coopers on the morning of 6 May, the Crown pointed out that this was not fatal to its case. The travelling time between Hillydale and Parramatta was one and a half hours. Provided the telephone call was made before 7:30 am, it was still possible for the appellant to be at Parramatta by 9:01 am when the vehicle fitting the description of his vehicle was seen in the car park of the Parkroyal Hotel. 167 In addition to the above evidence, the Crown relied upon other surrounding circumstances. Reference has already been made to those matters above. However, it is important that they be reconsidered in the light of the unsafe and unsatisfactory ground. They demonstrate a strong circumstantial case, involving, relevantly, motive, knowledge and opportunity. 168 At the time of the disappearance of Mrs Whelan, the appellant was in serious financial trouble. He was no longer able to rely on the income of his ex-wife. He had mortgage repayments of $1,016 per month. He was unemployed. He had little money in his bank accounts and had borrowed money from family members (and he asked for, then demanded, $15,000 from Mr Buckley). The appellant knew the Whelans and knew that they were financially well-off. The appellant telephoned Mr Whelan unexpectedly on 7 April 1997 and in a return telephone call, Mr Whelan mentioned his Wednesday business trips to Adelaide every couple of weeks. 169 The appellant visited the Whelan property on Wednesday, 16 April 1997. This visit was unannounced. To gain access to the property, the appellant telephoned from a public phone, rather than using his mobile telephone. Mrs Whelan was not alone at the property, but the appellant spoke privately with her and Mrs Whelan asked Ms Peters to keep his visit a secret until she could reveal the purpose of the visit in a few weeks. The appellant's explanation for going to the Whelan property (that he assumed Mr Whelan, from whom he wanted to ask for work, was there because he had contacted Mr Whelan's office that day and was told he wasn't at work) was not supported by the evidence given by the reception staff. 170 Mrs Whelan told Mr Whelan she had an appointment in Parramatta on 6 May 1997. The diary entry made by her for that day was simply "9.30". The Whelans were due to fly to Adelaide together that afternoon. 171 Mr Whelan received a ransom note on 7 May 1997, including instructions to leave a coded advertisement in the Daily Telegraph on 13 May 1997. During the search of Hillydale on 25 May 1997, police located the dot point evidence in the appellant's handwriting, which were consistent with them being an early outline of a kidnapping plan and a preparatory note for the ransom demand. 172 A call was made by a male person from outside the Empire Hotel at Goulburn at 9:21 am on 23 May 1997 to Crown Equipment. The caller revealed a knowledge of the contents of the ransom note. The appellant admitted using the telephone outside the Empire Hotel, but said he used it to call his solicitor for a second time that morning, at about 20 or 30 minutes after 9 am. This account was inconsistent with the record of calls kept by the solicitor's office. 173 During a search of the appellant's premises, police located a Canon typewriter which could have been used to type the ransom note, if the standard daisy wheel which the typewriter came with and which had been found at his home had been replaced with another daisy wheel. 174 A UBD directory was found by police in a Jaguar motor vehicle that was in the appellant's possession. It had Phillip Street Parramatta heavily highlighted and the address of the Parkroyal Hotel written in the margin of the map. There was also some highlighting in the same colour leading away from the Parkroyal Hotel in a general southwest direction. Whilst this evidence provided some support for the Crown case it was not particularly strong as there was another explanation of it, namely that the appellant had marked up the directory when he had first gone to the Parkroyal Hotel sometime years earlier. The directory was outdated and roads in the vicinity of the Hotel had since been reconfigured. 175 The evidence in the case was not all one way. The evidence of the sightings of Mrs Whelan after 9.38 am, if accepted by the jury, meant that they could not be satisfied that she was abducted shortly after she left the car park. The Coopers' evidence in relation to the phone call on 6 May, if accepted, could have supported the appellant's defence, especially if the jury accepted that the phone call occurred between 7:30 and 9 am. However, the sightings of Mrs Whelan did not mean that she was not abducted at some time later on 6 May. The Coopers' evidence as to the time that the telephone call was made, if made at all, was uncertain. To the extent that the Crown relied on the street directory, that evidence was equivocal. 176 Notwithstanding these matters, the Crown case was a very strong circumstantial case. The evidence that supported the presence of the appellant in Parramatta; the evidence supporting the inference that Mrs Whelan had planned to meet the appellant at 9:30; the unexpected contact by the appellant with Mr Whelan in early April; the unexpected visit to the Whelans' home on 16 April; the dot point evidence; the telephone call evidence; and the evidence that indicated that the reports of a bad back were part of a smokescreen, pointed overwhelmingly to the guilt of the appellant on both counts. 177 We are not of the opinion that there is a significant possibility that an innocent person has been convicted of the offences in the indictment: M v R at [9] 494. 178 Accordingly, ground 10 should also be dismissed. Grounds 8 and 9 179 The appellant was granted special leave to appeal to the High Court. On 31 July 2008, the High Court in its decision Burrell v The Queen [2008] HCA 34 held that the Court of Criminal Appeal had no jurisdiction or power to recall its earlier decision, or to reconsider or alter the orders previously pronounced and entered. It followed that, as the Court's first orders had been based on admittedly wrong facts, the appeal from the first decision had to be allowed. As the Court had no power to make the second orders, they also had to be set aside. The High Court made the following orders: "THE COURT ORDERS THAT: 1. So much of the appellant's applications for special leave to appeal to this Court on grounds other than those upon which the appeals to this Court are founded be dismissed. 2. The appeal against the judgment of the New South Wales Court of Criminal Appeal given and made on 23 March 2007 be allowed. 3. The appeal against the judgment of the New South Wales Court of Criminal Appeal given and made on 16 March 2007 be allowed. 4. The order of the New South Wales Court of Criminal Appeal made on 23 March 2007 be set aside. 5. The order of the New South Wales Court of Criminal Appeal made on 16 March 2007 be set aside. 6. The appellant's appeal against conviction and his application for leave to appeal against sentence be remitted to the New South Wales Court of Criminal Appeal for rehearing. DATE AUTHENTICATED: 13 August 2008" 180 A question arose as to whether the challenges comprehended in grounds 8 and 9 were intended to be included in the remitter to this Court for rehearing. The "infirm factual foundation" which gave rise to the judgment of 23 March 2007 was not germane to these grounds and had no bearing on the arguments in support of them or their determination. 181 Grounds 8 and 9 were considered and rejected by the Court in Burrell v R [2007] NSWCCA 65. The High Court refused special leave to argue these grounds on the basis that there were insufficient prospects of success to warrant a grant of special leave in respect of them. 182 The grounds upon which the appellant sought to rely in this regard can be regarded as being in three categories, first, those upon which special leave was granted, second, those (being grounds 8 and 9) upon which special leave was refused on the basis that they lacked prospects of success and, third, the remaining grounds. The remaining grounds can be identified as grounds 1, 2 and 10 now advanced in this Court as well as the challenge to sentence. 183 This categorisation is compatible with the expression in the joint judgment of the High Court dealing with the appeal where their Honours said, at [12]: "Against the possibility that remitter to the Court of Criminal Appeal, for rehearing of the appeals by that Court, may not be thought appropriate, the appellant sought special leave to appeal on grounds alleging, in effect, that the Court of Criminal Appeal should have found errors in the proceedings at trial. In so far as the application for special leave raised those matters, it was referred for consideration by the Full Court of this Court that would hear and determine the appeals. The matters giving rise to these additional grounds should be dealt with afresh on the rehearing of the matter in the Court of Criminal Appeal. So much of the appellant's applications for special leave to appeal to this Court on grounds other than those upon which the appeals to this Court are founded should be dismissed. As is implicit in what has been said, however, that dismissal is not to be understood as expressing nay view about the merits of those other issues." 184 Again, that categorisation of the grounds is also consistent with the comment by Gleeson CJ and the responses of counsel (who have continued their respective representation in the present appeal) at the conclusion of the special leave application hearing: " GLEESON CJ: We intend to grant the application for special leave to appeal insofar as it is based upon ground 1 on page 519 and grounds 1 and 2 on page 544. As to the remaining proposed grounds of appeal, which I will describe generally as the Shepherd grounds, and the unsafe and unsatisfactory grounds, what we have in mind, subject to any comment counsel may want to make, is to refer the application, insofar as it is based on those grounds, into the Full Court that hears the appeal in respect of which we have already said we would be minded to grant special leave, thereby leaving it to that Full Court to decide whether to deal with those remaining grounds as applications for special leave or whether to hear full argument as on appeal or possibly to refer them back to a differently constituted Court of Criminal Appeal depending upon the outcome of your [ Grierson v R [1938] HCA 45; (1938) 60 CLR 431] point. MR BARKER : Yes, I understand. GLEESON CJ : Is there any comment you would want to make on that course? MR BARKER : No, your Honour. GLEESON CJ : Mr Solicitor? MR SEXTON : No, your Honour." 185 What the Chief Justice there described in general terms as the Shepherd grounds and the unsafe and unsatisfactory grounds, are grounds 1, 2 and 10 in the notice of appeal before this Court. Clearly, these grounds are the subject of the remitter for rehearing by this Court and we have dealt with them on the arguments put to us. 186 Whether grounds 8 and 9 have been remitted for rehearing is not so clear. As we have already indicated, special leave to appeal in reliance on those grounds was refused. Because of this uncertainty, this Court raised at the commencement of this appeal the question as to whether grounds 8 and 9 were the subject of the remitter for rehearing. The Court also invited the parties, and in particular the Crown, to seek clarification of the High Court's orders, including by use of the power in High Court Rules 2004 (Cth), reg 3.01 (the slip rule provision). That invitation was declined. 187 It is the Court's view that the remitter does not encompass those grounds. However, the ultimate submission of both counsel for the appellant and for the Crown was that the grounds should be regarded as comprehended within the remitter. Both parties presented submissions in respect of these grounds, which were the same as those put in the first appeal and which were rejected by the Court in that appeal. The reasons given for the rejection were extensive and detailed. This enables this Court to deal with these grounds briefly and we do so in substantial part by adoption of those reasons. We stress, however, we have only considered these grounds should we be wrong in our view that they were not encompassed in the remitter. Ground 8 188 Ground 8 related to the evidence of three witnesses: Norman Elliott, Karen Carter and Allan Burrell. Mrs Carter and Mr Elliot were witnesses to sightings of Mrs Whelan on 6 May. Allan Burrell is the appellant's father and his evidence related to the appellant's movements in April 2007. They were called in the Crown case. The Crown had been given leave to question each of these witnesses under the Evidence Act, s 38, on the basis that the leave was to be utilised by the Crown prior to cross-examination by the appellant's counsel. However, after cross-examination by the appellant's counsel the Crown again sought leave, under s 38, to further question those witnesses, having regard to certain evidence each had given in cross-examination. 189 The Evidence Act, s 38 provides " 38 Unfavourable witnesses (1) A party who called a witness may, with the leave of the court, question the witness, as though the party were cross-examining the witness, about: (a) evidence given by the witness that is unfavourable to the party … (2) Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than section 39). … (4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs. (5) If the court so directs, the order in which the parties question the witness is to be as the court directs. (6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party …" 190 In the first appeal, the Court dealt extensively with the law relating to the application of s 38. We rely upon the Court's review of the law with which we agree and do not propose to set out the authorities referred to by the Court on that occasion. It is sufficient to refer in brief terms to the principles to be derived from the authorities. The permission provided by s 38 for the cross-examination of a party's own witness is more liberal that than provided by the common law (the first appeal at [232]); notwithstanding the flexibility provided by the section, the trial judge's discretion to permit cross-examination of a party's own witness must be exercised so as to ensure that the trial remains fair (the first appeal at [233]-[234], citing R v Kneebone [1999] NSWCCA 279 at [104]; (1999) 47 NSWLR 450 at 471); and s 38 should be used with care in criminal cases: R v Fowler [2000] NSWCCA 142 at [120]. 191 Before granting leave the court is required to consider s 38(6), s 135 and s 137 dealing with prejudicial evidence, and s 192 which provides that where a court may give leave under the Act, the court is to take into account, relevantly, "the extent to which [the grant of leave] would be unfair to a party or to a witness": s 192(2)(b). 192 Cross-examination under s 38 should usually occur before any other party cross-examines (s 38(4)); however, leave may be granted under s 38 after an opposing party has cross-examined (R v Milat (Supreme Court of New South Wales, 23 April 1996, unreported); R v Parkes [2003] NSWCCA 12; 147 A Crim R 450). In that circumstance, fairness may require that the opposing party be given a further opportunity to cross-examine: Milat at 6-7. In R v Kingswell (Court of Criminal Appeal, 2 September 1998, unreported) Studdert J held that the trial judge had erred in granting leave to cross-examine after the opposing party had cross-examined in circumstances where the Crown anticipated the unfavourable evidence. His Honour considered that the matter should have been dealt with before cross-examination by the defence. Smart J disagreed, stating that fairness could be achieved by affording the defence a further opportunity to cross-examine. 193 In Mr Elliot's evidence in chief was that on 6 May, he said he had entered the Parkroyal Hotel through the main revolving door in the front lobby to use the toilets that were close by. He said that as he walked across the front of the hotel towards the entrance, he looked to his right and saw a woman, whom he thought was Mrs Whelan, and a man, coming from the carpark ramp. Mr Elliot recalled the man moving from the right to the left in front of the woman as they were walking up the ramp and identified him as being a white Caucasian. In his evidence in chief, Mr Elliot had marked on a plan, with dotted lines, the route by which he entered the hotel. The dotted lines led to the revolving front door. However, Mr Elliot was not seen on the CCTV footage that covered the front entrance of the hotel (camera 6). The period between images on the camera was approximately four seconds and on that basis, it was the Crown case that Mr Elliot could not possibly have entered the hotel at that time. Nor could he be seen on the CCTV footage that covered the entrance to the toilet where he said he went (camera 5). The Crown, who had leave to question Mr Elliot pursuant to s 38, showed him the CCTV footage from both cameras 5 and 6. 194 In cross-examination, Mr Elliot agreed it was possible he could have entered the hotel through an entrance that was to the east of the main revolving door in the front lobby. If that was so, that would explain why he did not appear on the CCTV footage. It is relevant at this stage to note that the Crown was asserting that Mr Elliot could not possibly have sighted Mrs Whelan, whereas the appellant was seeking to use Mr Elliot's evidence to undermine that part of the Crown case that relied upon the Pajero evidence. 195 The appellant's counsel at trial submitted that the Crown at all times knew that the appellant was seeking to support Mr Elliot's evidence and thus would cross-examine him seeking to reinstate his evidence that he saw Mrs Whelan between 9:38 and 9:40 am. The appellant's counsel submitted, therefore, that as the Crown had already been given leave to question Mr Elliot pursuant to s 38, no further opportunity should be given. 196 The Crown submitted that it should be given further leave pursuant to s 38 so as to show Mr Elliot the footage from CCTV camera 7, which covered the entrance to the east, and to question him on the basis that he did not appear on that footage either. The appellant submitted to the trial judge, however, that that question had been raised with Mr Elliot at the first trial, so that the Crown was on notice that this evidence would be called. It was integral to the submission that if the Crown was proposing to contend that Mr Elliot was not shown on any CCTV footage, any relevant footage should have been shown to him prior to cross-examination. 197 The trial judge resolved the application to further question Mr Elliot under s 38 by accepting that the Crown was entitled to approach Mr Elliot's evidence on the basis that in his evidence in chief, he had identified his entry into the hotel as being through the revolving doors and that he went to the toilets near those doors and not elsewhere. When the appellant's counsel obtained the concession from Mr Elliot that he may have entered through the eastern door, his Honour considered it was reasonable to permit the Crown to then show him the footage from CCTV camera 7. 198 The second trial presented a number of difficulties, many of them emanating from the evidence given and rulings made at the first trial. This was one example. Whilst it is correct that the evidence given on the previous occasion, including in cross-examination, placed both the Crown and the appellant in the position where they would have been able to anticipate not only the course of evidence, but also the course of cross-examination, nonetheless, the trial had to run in a coherent fashion before the jury. Accordingly, the Crown, as his Honour found, was entitled to rely upon answers Mr Elliot gave, without seeking to question him pursuant to the initial leave, on every possible combination of facts on the chance that the appellant would pursue the exact same line of cross-examination as had been pursued at the first trial. The coherent presentation of the case entitled the Crown to rely upon the evidence that Mr Elliot gave in chief, especially as that evidence indicated positively that he had entered through the revolving doors at the front of the hotel. It would have been different had his evidence in chief been that he was unsure through which door he had entered. If that had been the evidence, then it might have been arguable that the Crown should have been refused a second opportunity to suggest to Mr Elliot that he had not entered through any door. That was not the case and his Honour's grant of further leave to cross-examine was not an erroneous exercise of discretion. 199 The second aspect of Mr Elliot's evidence about which the Crown sought further leave under s 38 was in respect of his evidence about the man whom he saw walking up the carpark ramp at the same time as Mrs Whelan. The CCTV footage positively established that the person who walked up the ramp at the same time as Mrs Whelan was Mr Shah, who was of "Indian-type origin". Mr Shah was present at court during the first trial and Mr Elliot gave evidence that the man whom he saw on the carpark ramp was different from the man in court. At the second trial, he confirmed that he had given this evidence. However, in his cross-examination, Mr Elliot said that his evidence about the man's complexion may have been wrong. The appellant's counsel at trial submitted that he had cross-examined Mr Elliot at the first trial and obtained his agreement to the proposition that he may have been wrong in his recollection of the appearance of the man walking up the ramp. However, the trial judge considered there had been a substantial change in the evidence and his Honour thus granted further leave under s 38 on the basis that the appellant's counsel would also have a further opportunity to cross-examine Mr Elliot. For the same reasons as we have given in respect of the evidence relating to Mr Elliot's entry into the hotel, we consider there was no error in the trial judge's grant of leave in respect of this evidence. 200 The Crown's application in respect of Mrs Carter and the trial judge's consideration of it is to be found at Tr 1255-1259. As we have indicated, the Crown had already been granted leave to question Mrs Carter under s 38, in circumstances where she had previously made statements to the police and had given evidence at the first trial. There were differences in her various accounts as to the certainty with which she identified Mrs Whelan on 6 May. The purport of the Crown case was that she was not certain that the woman she saw was Mrs Whelan. Mrs Carter had made a statement to the police on 3 June. In her evidence in chief, Mrs Carter said that the woman she had seen was "possibly" Mrs Whelan. It was this evidence that the Crown was seeking to rely upon. 201 Mrs Carter had had also spoken to police prior to making her statement on 3 June. She had also spoken to the police on two earlier occasions. These were recorded on a police running sheet. Relevantly, on the running sheet for 3 June, she is recorded as saying that she was in no doubt that the person she saw was Mrs Whelan. The Crown had not asked Mrs Carter any questions about what was recorded in the running sheet for 3 June. In cross-examination by the appellant's counsel, Mrs Carter said that she was certain that the woman she saw was Mrs Whelan. The running sheet for 3 June was tendered. This was the evidence in respect of which the Crown sought further leave under s 38. 202 The appellant's counsel submitted that because the Crown knew that Mrs Carter had said different things at different times, it should have anticipated what she was likely to say in cross-examination and, accordingly, any questions that the Crown had on this matter should have been asked by the Crown pursuant to the leave already granted under s 38 prior to the defence commencing its cross-examination. The Crown's response was in these terms: "My response to that is that I had got to the point where [Mrs Carter] admitted telling the police on 3 [June] that the woman was only similar. It is quite unrealistic for me to then say, 'Look, did you also tell them that it was the same woman, and why did you say that?'" 203 His Honour responded "Yes, I think that is the answer to it". His Honour indicated to the appellant's counsel that he would permit further cross-examination. 204 No error has been demonstrated in the trial judge's exercise of discretion. His Honour accepted it had been reasonable for the Crown not to raise this matter in the initial questioning of Mrs Carter, whether in chief, or pursuant to the leave that had already been granted. This was a reasonable approach to the case by the Crown for the reasons we have explained above in relation to Mr Elliott, at [198]. His Honour was satisfied that the evidence given in cross-examination was unfavourable to the Crown and that, in the circumstances, leave should be given to enable the Crown to question Mrs Carter in respect of the statement to the police. Once it is accepted that the initial approach of the Crown was reasonable, there is no basis for finding error in the grant of leave to further question the witness. 205 The next application related to Allan Burrell. Allan Burrell had given evidence that the appellant had stayed at his home for three days and two nights in April 1997. Initially, in his evidence in chief, Allan Burrell said that the appellant had arrived on Tuesday 15 April, stayed Tuesday and Wednesday night and left on the Thursday. He said he believed that the appellant was going to see Mr Whelan on the Wednesday, that is, 16 April. Allan Burrell's phone had been the subject of telephone intercepts and a telephone call he had with one of his two daughters on 11 July had been recorded. In that conversation, Allan Burrell had told his daughters that the appellant had stayed with him on Monday 14 April, through to Wednesday 16 April and that he said as he left on the Wednesday, the appellant had said he was going to the Whelans' residence. In another intercepted telephone conversation with one of his daughters, on 19 June, Allan Burrell said that on the third day when the appellant had left his place, he had said he was going to the Whelans' to pick up some work. 206 In cross-examination, Allan Burrell agreed with the suggestion that it was the Wednesday the appellant had visited the Whelans, but that he was mistaken about it being the third day of the appellant's visit. The Crown sought leave under s 38 to question Allan Burrell on the basis of a statement he had made to police dated 19 June 1997, in which he said that the appellant stayed at his home on the Monday and Tuesday nights and visited the Whelans on the Wednesday, being the third day. 207 The Crown's case was that Allan Burrell was correct when he said the appellant was going to see Mr Whelan on the third day of his stay, but was incorrect about that being the Wednesday. The appellant's case was that Allan Burrell was correct about the Wednesday, but was mistaken about it being the third day of the appellant's stay with him. 208 If the appellant was able to rely upon Allan Burrell's evidence that it was the Wednesday, that is, 16 April, that the appellant went to the Whelans' property, then this was, on the appellant's submission, powerful evidence in its case negating the Crown's speculation that he was planning to abduct Mrs Whelan at that time. 209 The resolution of this dispute in their respective favour was important for both parties. On the Crown's version of events, the appellant had falsely told his father of his intention to go to the Whelans' property on the Thursday, 17 April, whereas in fact, he had already been there the day before, in his failed attempt to kidnap Mrs Whelan. The Crown thereby sought to refute the appellant's case that when he went to the Whelans' property on 16 April, he could not have been intending to kidnap Mrs Whelan, because, had that been the case, he would not have told his father he was going to the Whelans' property. 210 The appellant submitted that any further opportunity to question Allan Burrell would give the Crown an unfair opportunity to undermine Allan Burrell's evidence as given in cross-examination. It was submitted that this was particularly so, given that the Crown was on notice of the factual dispute between the parties from the first trial. 211 There was some force in the position taken by the appellant's counsel at trial that this statement made to the police should have been put to Allan Burrell prior to cross-examination. It appears to have fallen into the same category of evidence as the telephone calls to his daughters, where Allan Burrell had given different versions of the appellant's visit. The Crown appears to have recognised this, as counsel for the Crown submitted to the trial judge that if his Honour had a concern that this should not be a matter for leave pursuant to s 38, then the Crown would seek leave to reopen in chief, so that the appellant's counsel would have a further opportunity to cross-examine. 212 The trial judge's ultimate discretion had to be exercised in a manner so as to ensure that there was a fair trial. Having regard to the importance of this evidence and the need to ensure that all relevant evidence was available to the jury, we see no error in permitting this evidence to be adduced pursuant to s 38. His Honour gave leave to the appellant's counsel to further cross-examine Allan Burrell if it was thought appropriate. His Honour could have exercised his discretion to permitted the Crown to adduce this evidence by way of further evidence. We see no error in the approach taken by his Honour. Accordingly, in conformity with the reasons of the Court in Burrell v R [2007] NSWCCA 65, we would also reject ground 8. Ground 9 213 Ground 9 was in the following terms: His Honour erred in: (a) not discharging the jury and giving in the circumstances a direction in accordance with Black ; (b) not giving in the circumstances a modified direction to that outlined in Black ; and (c) failing to enquire at the end of the day of 5 June 2006 as to , having already given a Black direction, as to whether there was any real prospect of the jury reaching unanimous verdicts or if the jury or any of its number required any assistance. 214 The jury retired to consider its verdicts shortly before 1 pm on Wednesday 24 May, 2006. On the morning of the ninth day of deliberation after that, that is, on Monday 59 June 2006, his Honour received a note from a juror. The note essentially raised two matters. The first was that the author of the note was concerned that he/she had made two 'mistakes'. The first mistake was putting his/her notes in his/her bag to take home. Another juror noticed this and informed the author of the note that that could not be done. The author of the note immediately took the notes out of the bag and left them in the jury room. The second mistake was that the author of the note looked up the location of the town of Guyra on a map, as he/she did not know where the town was. The juror stated that he/she understood that that was an infraction of directions the trial judge had given the jury. The second matter raised by the note was that any continued deliberations would serve no purpose. The author asked that the trial be brought to an end. The note revealed that the juror felt pressured and, in particular, was concerned that the above-mentioned transgressions were being used to pressure him/her into agreeing with the other jurors. 215 The trial judge made available to the Crown and appellant's counsel an edited version of the note, with the references to the pressure the author indicated was being exerted on him/her edited out. His Honour indicated that he was taking that action because the note contained some accounts of events in the jury room which were not appropriate to disclose. The Crown submitted that the matters raised by the juror were not sufficient for his Honour to discharge the jury. However, the Crown submitted that it would be appropriate for a Black direction to be given. The appellant's counsel submitted that the jury should be discharged and that it would be inappropriate to give a Black direction, as in the circumstances, that direction would be seen as being directed personally at the juror the author of the note. The trial judge determined that a Black direction should be given. 216 At the hearing of the first appeal, the Court considered it was appropriate that the Crown and the appellant's counsel have access to the whole note for the purposes of the appeal. Having considered the full terms of the note, the appellant's counsel sought leave to supplement ground 9. He contended that the trial judge had erred in not disclosing the full terms of the note, or at least in not disclosing the note to the extent it revealed that: the minority juror did not feel the deliberations were any longer genuine; the juror was intimidated by fear of exposure of the two transgressions; the juror was seeking to have the proceedings brought to an end on the basis that the juror had been told by the majority jurors that rather than accept his/her decision, they would drag the deliberations out and treat the minority juror in an extremely unpleasant manner, by "freezing" him/her out until he/she "came across". The appellant also contended that his Honour erred in not requesting evidence on oath pursuant to the Jury Act 1977 and, in not discharging the jury because of the irregularity caused by the juror's breach of the Jury Act in writing the note. 217 The Court, on the first appeal, acknowledged, at [261], that in most cases, any communication between the jury and the judge should be disclosed in full to counsel for both parties. There are narrowly confined exceptions to that principle (see Ramstead v The Queen [1999] 2 AC 92 at 98). Those exceptions were discussed in Yuill v R (1994) 34 NSWLR 179; (1994) 77 A Crim R 314. The Court there noted that there are two exceptions to the basic rule: first, where the communication relates to a subject matter unconnected with the issues which the jury has to determine; and secondly, where the communication concerns some subject about which it is inappropriate for the jury to have communicated with the judge. The Court, by way of example, instanced the disclosure of the voting figures when otherwise properly informing the judge of the existence of a disagreement. 218 The Court, on the first appeal, concluded that the trial judge had taken a correct approach in concluding that the entirety of the note ought not to be disclosed to the Crown and the appellant's counsel. The Court considered that the portions of the note relating to the manner in which the jurors had been conducting their deliberations were, as the Court had noted in Yuill, a matter for the jury. There was nothing in the juror's note that revealed there was any illegality or irregularity in those deliberations, notwithstanding that they appeared to have been robust and perhaps even heated. Their Honours considered that the experience of the juror, whilst it may have been unpleasant, was not beyond the bounds of normal human behaviour. To the extent that it might be said that there was any irregularity in the jury's deliberation, being the supposed threat by the majority to disclose to the trial judge the juror's mistakes in putting the notes into his/her bag and in looking up the location of Guyra on a map, the Court considered that was adequately dealt with by the trial judge, who directed the jury that those matters were minor transgressions. We agree with the Court's reasoning on these matters and have nothing further to add. Likewise, we agree with the Court's conclusion that there had been no breach of the Jury Act, s 68B and that s 55D did not have any relevance to the case. 219 That then leads to the question whether his Honour should have discharged the jury, rather than give a Black direction. The appellant submitted that the juror's note may have given rise to a reasonable apprehension of suspicion of bias in a fair-minded and informed member of the public, in two ways. First, it was submitted that the note revealed that the intractable majority would not discharge their task impartially and, secondly, it demonstrated that the minority juror would not or could not discharge his/her task impartially, because of that juror's evident distress. The Court on the first appeal rejected this submission. The Court noted that the jury had been in deliberation for a number of days (at least seven and a half days). The Court considered that it was not unexpected that during that period of time, certain positions would have been taken and that the case was undoubtedly subject to rigorous debate. McClellan CJ at CL stated, at [294]: "It could not rationally be suggested that all jurors must come to the same conclusion at the same time before they may enter a valid verdict. If it could be argued that a minority juror's decision to join the majority gives rise to an inference of bias, then in almost any case where the jury deliberated for any length of time there may be grounds for discharge." 220 At [297], McClellan CJ at CL identified the issue for the Court's determination as being whether the trial judge erred by giving a Black direction when, because of the juror's note, his Honour knew that the minority juror was under pressure from the majority. His Honour noted that the giving of the direction was a matter for his Honour's discretion. His Honour had presided over a lengthy trial with the attendant advantage of being able to assess the demeanour of the jury. His Honour did not find it surprising that a minority juror felt pressure from the other jurors. However, that factor, of itself, would not give rise to concerns that a miscarriage of justice had, or was, occurring. In any event, any ability of the jurors to exert pressure on a minority juror by threatening to reveal that juror's transgressions was dispelled by his Honour's unequivocal direction stated in open court, that they were not matters of concern. 221 McClellan CJ at CL concluded, at [299]: "In the present case I am satisfied that it was appropriate for his Honour to give a Black direction. Although he had received information that the jury were having difficulty reaching agreement he was also informed that discussions were ongoing. Indeed, the essence of the communications from the juror was that debate was continuing. The juror was being asked to explain his or her position. There is no reason to believe that in the hours which followed, the debate did not resolve the remaining difficulties, resulting in a unanimous verdict." 222 We agree with his Honour's reasoning and nothing further was put in submissions to this Court to explain why that reasoning was not available. 223 Finally, the appellant submitted that the Black direction should have been modified. The modifications that should have been made, on the appellant's submission, were that "the jury be told that the direction was the normal given in such circumstances" and that the fact of giving the direction or its terms should not be perceived as pressure being exerted by the Court on any juror to compromise his/her decision, nor be used by the majority to try and force the minority to compromise their position. 224 The trial judge gave careful and clear directions to the jury which addressed these matters. Those directions are set out at [301]-[302] of the judgment in the first appeal and it not necessary to set them out again. We agree with the Court's opinion in that case that the directions were appropriately formulated. 225 Finally, we agree with the Court's determination in the first appeal that there was no error in the trial judge's failure to enquire at the end of 5 June as to whether there was any real prospect of reaching a unanimous verdict. As the Court pointed out in the first appeal, after his Honour gave the first direction, it was for him to determine when it was appropriate to enquire as to the jury's progress in their deliberations. There was no error in his Honour's failure to make that enquiry at the end of the day on 5 June. 226 It follows that ground 9 should be rejected. Application for leave to appeal against sentence 227 The appellant also sought leave to appeal against sentence. 228 The trial judge stated, at [27]-[30] of his remarks on sentence, that a good deal of planning went into the commission of the offences, including early preparations for a ransom note, the drafting and typing of the ransom note, the ascertainment of times when Mrs Whelan was more likely to be alone at her house and the invention of a reason compelling enough to persuade Mrs Whelan to meet him at Parramatta on 6 May. His Honour also remarked upon the steps the appellant took to try to avoid detention, including the false account he had given of his movements to his father; the disposal of the daisy wheel and typewriter tape used to type the ransom note; and the use of a public telephone on 16 April, when he realised he could not access the Whelans' property unannounced, rather than his mobile phone, which he was carrying. His Honour further commented upon the appellant's persistence when things did not go as planned. In this regard, his Honour found that the appellant's intention in going to the Whelans' property on 16 April was to abduct Mrs Whelan on that day and leave the ransom note at the house. 229 His Honour stated, at [32], in relation to the position of a life sentence, that: "The law requires that if it is satisfied that the level of culpability in the commission of the offence of murder 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, the Court is to impose that sentence. In my opinion [the appellant's] detailed planning, his persistence, the precautions he took to avoid detection, his motive, namely the cold desire to extort a large sum of money, and the intent he harboured between 16 April at the latest and 6 May to kill Mrs Whelan, comprehend a level of culpability that is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum sentence." 230 His Honour also considered that a sentence that strongly deterred others from committing offences such as kidnapping was also appropriate. 231 So far as the appellant's personal circumstances were concerned, his Honour noted his age, being 53 years old at the date of sentence; that he had a modest criminal record, which his Honour ignored for the purposes of sentencing; and that although it had been suggested during a bail hearing that the appellant was not in good health, no such evidence was tendered on sentence, nor was there any other evidence relating to the appellant's personal circumstances. His Honour considered in those circumstances that the proper approach was to assume the appellant would get appropriate medical or other assistance whilst he was in custody. His Honour also found there were no subjective features by reference to which any argument could be put for a mitigation in sentence. His Honour also noted that the appellant had shown no remorse. 232 The trial judge considered the act of detaining Mrs Whelan against her will for the purposes of creating a chance that the ransom demand might be met to be part of the appellant's criminality in the offence of murder. In this regard, his Honour considered that the circumstances of the two offences were inextricably tied together, as was exemplified by the fact that the appellant's reason for killing Mrs Whelan was to conceal his responsibility for her detention. His Honour, therefore, indicated his intention to impose concurrent sentences for the two offences. 233 His Honour also considered that the offence of detaining for advantage was a very serious one of its kind. His Honour again emphasised that the appellant had engaged in long, careful and persistent preparatory acts. His Honour found, at [45], that the appellant's motive was "the cold desire to enrich himself". 234 His Honour referred to the appellant's specific intent relating to the crime of murder. It was the Crown case that because Mrs Whelan knew the appellant, once he had detained her he could never let her go, because he knew that if he did, he would be exposed. His Honour did not expressly make a finding as to whether he accepted that was appellant's intent. However, it is apparent from his remarks on sentence generally that his Honour accepted that the jury had so found. The law relating to the imposition of a life sentence 235 The Crimes (Sentencing Procedure) Act 1999, s 61(1) provides: " 61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if 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." 236 The burden of proving that a case falls within s 61(1) rests on the Crown. The standard of proof in such case is beyond reasonable doubt: see R v Olbrich [1999] HCA 54; (1999) 199 CLR 270; Merritt. In R v Twala (Court of Criminal Appeal, 4 November 1994, unreported), the Court stated: " … in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed) …" 237 Twala was cited with approval in R v Harris [2000] NSWCCA 469; (2000) 50 NSWLR 409; 121 A Crim R 342 per Wood CJ at CL (Giles JA and James J agreeing) at [84]-[85] and again in Merritt. 238 In R v Arthurell (Supreme Court of New South Wales, 3 October 1997, unreported) Hunt CJ at CL referred, at 11, to the meaning of "heinousness" as "atrocious, detestable, hateful, odious, gravely reprehensible and extremely wicked". His Honour held, therefore, that the test to be satisfied in determining whether to impose a life sentence, was "a substantial one". These comments were approved in Merritt at [39] and Harris at [84]-[85]. 239 In Merritt, the question arose whether a sentencing judge had to be satisfied, before imposing a life sentence, of the presence of each of the indicia referred to in s 61(1), that is, that the culpability was so extreme that the community interest in "retribution, punishment, community protection and deterrence" could only be met by the imposition of a life sentence. Wood CJ at CL considered, at [42], that there were several possible interpretations of the section and enumerated the following: "(a) First, that a life sentence is required, if the culpability is so extreme that the community interest, in any one of the four indicia, is such that it could only be met by such a sentence; (b) Second, that such a sentence is only required if the culpability is so extreme that the community interest, in each of the four indicia, is such that it could only be met by such a sentence; … (c) Third, that such a sentence is required if the culpability is so extreme that the community interest, in the combined effect of such of the four indicia as are applicable, could only be met by such a sentence (a construction which would embrace a circumstance where any one or more of those factors may be of itself insufficient, or inapplicable); and (d) Fourth, a variation of the third construction, that such a sentence is only required where the culpability is so extreme that the combined effect of the four indicia, with each contributing to some degree, is such that it could only be met by such a sentence." (Emphasis original) 240 His Honour noted that the drafting of the section was not clear and looked at the legislative history to obtain assistance in determining the correct construction of the section. His Honour held, at [50], that s 61(1) should be given a purposive construction. On that approach, his Honour considered that the third of the possible interpretations was the correct approach. He gained further support for that approach from the comments of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v R (No 2) [1988] HCA 14 at [13]; (1988) 164 CLR 465 at 476, where their Honours said: "However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions." 241 His Honour also considered that this approach was supported by the acceptance in Harris and most likely, in R v Miles [2002] NSWCCA 276, that the test in s 61(1) broadly accorded with the common law approach. His Honour concluded: "[52] In my assessment, the primary focus of the legislation is directed towards how extreme the offender's culpability is. Both Harris and Miles , and the various decisions that have led to life sentences, have emphasised the importance of this factor, and for the need for the court to find features of very great heinousness, along with the absence of any facts mitigating the seriousness of the crime. In these circumstances, I can see no reason why the section should not apply, if the culpability is so extreme that any combination of the stated indicia would lead to the view that the only sentence, that can be passed, is one of imprisonment for life. [53] While in most cases of extreme heinousness each of the relevant elements will be present to some degree, it is unlikely that they will be present to the same degree. For example, that might be so in the case of an offender who has a significant mental condition, which renders him of very great continuing dangerousness, but in whose case, in accordance with established sentencing principle, the element of personal deterrence may be of limited importance." 242 Whilst accepting the correctness of Wood CJ at CL's conclusion, with which Tobias JA and Hidden J agreed, the appellant also placed emphasis upon the following comments of Tobias JA, with which Hidden J also agreed: "[5] Obviously, the absence of any one or more of those indicia will make it more difficult for a trial judge to reach the state of satisfaction required by the section before such a sentence is mandated (subject always to s 61(3)). This is particularly so as the trial judge must be satisfied beyond reasonable doubt that the level of culpability is so extreme as to require the imposition of that sentence. [6] It would, I tend to think, be a rare case where the total absence of one or more of the indicia will still permit the relevant degree of satisfaction to be attained. On the other hand, as [Wood CJ at CL) observes in [53] of his judgment, absence of the need for personal, as distinct from general, deterrence, is unlikely to influence the decision to any significant degree. [7] As his Honour also observes, it is the combination of the statutory indicia established on the evidence to which regard must be had. It is only where the significance of those indicia, taken in combination, leads inevitably to the conclusion that the level of culpability is so extreme that the community interest can only be met through the imposition of a sentence of imprisonment for life, that such a sentence must be imposed." (Emphasis original) 243 The principles that apply in determining whether a life sentence should be imposed were summarised by McClellan CJ at CL in Knight v Regina [2006] NSWCCA 292; 164 A Crim R 126, at [23], as follows: "Section 61(1) has been the subject of consideration in a number of decisions. It is not necessary to analyse them for present purposes beyond a statement of the following principles: the maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which that penalty is prescribed: Ibbs v The Queen (1987) 163 CLR 447 at 451-452. it is not possible to prescribe a list of cases falling within the worst category – ingenuity can always conjure up a case of greater heinousness: [ Veen (No 2) at 478; R v Petroff (Court of Criminal Appeal, 12 November 1991, unreported)]. a life sentence is not reserved only for those cases where the offender is likely to remain a continuing danger to society for the rest of his or her life or for cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by a sentence of life imprisonment; [ R v Kalajzich (1997) 94 A Crim R 41 at (50-51); R v Baker (Court of Criminal Appeal, 20 September 1995, unreported); R v Garforth (Court of Criminal Appeal, 23 May 1994, unreported)]. in many cases a two stage approach to the consideration of whether the maximum penalty should be imposed is appropriate. Firstly, consideration is given to whether the objective gravity of the offence brings it within the worst class of case and then consideration is given to whether the subjective circumstances of the offender require a lesser sentence: R v Bell (1985) 2 NSWLR 466; R v Valera [2002] NSWCCA 50. it is the combined effect of the four indicia in s 61(1) which is critical: [ Merritt ]. the absence of any one or more of the indicia of retribution, punishment, community protection or deterrence may make it more difficult for a sentencing judge to reach the conclusion that a life sentence is required although will not be determinative: Merritt at 559." (The last-mentioned reference to Merritt at 559 is a reference to the comments of Tobias JA at [5] to [7] referred to above at [242].) 244 In Knight, Adams J, who substantially agreed with McClellan CJ at CL, emphasised, at [55], in respect of s 61(1) that: "It is obvious that such a punishment can only be justified for an offence that falls into the worst class of case. Furthermore, the circumstances must be such that the only way by which the relevant community interest can be met is by imposing a life sentence. Since s61(1) is part of a legislative scheme including, self-evidently, s54, this last sentence should be extended to read: the circumstances must be such that the only way by which the relevant community interest can be met is by imposing a life sentence without the possibility of being considered for release on parole . To ignore this aspect of the sentence would be to ignore its overwhelmingly most significant attribute." (Emphasis original) 245 However, it is not necessary in order for a sentence of imprisonment for life to be imposed for the Court to be satisfied that the crime is of the most serious or most heinous category. Rather, as the High Court said in Veen (No 2), at [15] 478: "… the maximum penalty … is intended for cases falling within the worst category of cases for which that penalty is prescribed … That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness." (Citations omitted) 246 The Crimes (Sentencing Procedure) Act, s 21(1) provides that if an offender is made liable to imprisonment for life, a court may nonetheless impose a sentence of imprisonment for a specified term. In Merritt, Wood CJ at CL noted the tension between the apparent mandatory requirement to impose a life sentence where a case falls within s 61(1) and s 21(1). His Honour noted that the tension had been recognised in the authorities: see R v Petrinovic [1999] NSWSC 1131 and Harris, where that tension had been resolved in favour of recognising the continued existence of the discretion provided for by s 21(1), notwithstanding the fact that the s 61(1) criteria had been met in circumstances where the offender's subjective circumstances justified a lesser sentence that one of life imprisonment. 247 The Crown submitted that there was nothing of significance in the appellant's subjective circumstances in this case, such as youth or mental illness. The appellant had not pleaded guilty so as to obtain the benefit of such a plea, nor had he expressed remorse or regret for his criminal behaviour. The appellant was aged 53 years at the time of sentencing and the Crown submitted that even if he would reach an age at which he no longer posed a threat to the community, it was open to his Honour to impose the maximum penalty in the circumstances of this case. This question was addressed by Hunt CJ in CL in Kalajzich at 50-51, where his Honour stated: "The maximum penalty for murder of penal servitude for life, meaning for the term of the prisoner's natural life, is … reserved for cases falling within the worst category of cases, but it is not reserved only for those cases where the prisoner is likely to remain a continuing danger to society for the rest of his life or for those cases where there is no chance of rehabilitation; the maximum may be appropriate where the level of culpability is so extreme that the community interest in retribution and punishment can only be met by such a punishment." 248 The Crown also submitted that there was no evidence of favourable prospects of rehabilitation, but even if there were, this would not mean that a sentence of life imprisonment should not be imposed: see Garforth and Baker. 249 The appellant submitted that premeditated, planned killings that are financially motivated do not fall within any recognised category of case where the maximum penalty was the only sentence able to meet the interests set out in s 61(1). He pointed to a number of cases where a life sentence had not been imposed, notwithstanding a finding that the murder had been premeditated and financially motivated (see Regina v Willard [2005] NSWSC 402; R v Mrish (Supreme Court of New South Wales, 13 December 1996, unreported); R v Chetcuti (Court of Criminal Appeal, 24 December 1993, unreported)). 250 It was submitted that premeditation, planning and financial motivation did not point to a level of culpability that was so extreme the community interest could only be met through the imposition of a sentence of imprisonment for life. It was submitted that those features were not "of very great heinousness", even if the detention of Mrs Whelan was taken into account. In that regard, it was submitted there was no evidence to support a contention that Mrs Whelan was exposed to any period of fear and that his Honour did not make such a finding. 251 The appellant accepted that the effect of the sentence imposed was to make his crime comparable to a contract killing. In respect of that type of case, Grove J in R v Crofts (Supreme Court of New South Wales, 6 December 1996, unreported) had commented that: "A deliberate killing for payment would prima facie find its place in the worst category of case with a potential for the imposition of the maximum penalty of penal servitude for life." 252 Hunt CJ at CL endorsed this comment in Kalajzich, at 52, stating: "With [the statement from Crofts above], I entirely agree. The word "potential" is important, for not every case of a contract killing would attract the maximum penalty. There will sometimes be a distinction to be drawn between the person who pays and the person who kills. Facts mitigating the objective seriousness of the crime may well eliminate that potential, at least so far as the person who pays." (Citations omitted) 253 The Crown and the appellant advanced directly opposing cases as to whether this case ought to be likened to a contract killing. The Crown submitted that the fact the murder was motivated by a desire for financial gain was a factor relevant to whether the crime fell within the worst case category. It was submitted that it was in that regard that the murder committed by the appellant was akin to a contract killing. 254 The appellant submitted that this case was to be distinguished from a contract killing case, in that it was the appellant's own financial ruin and desperation which motivated the killing. It was submitted that it was an ameliorating factor that as the person with the motive to kill, the appellant did not exploit others to bring about Mrs Whelan's death: see by contrast, Willard and Kalajzich. 255 The appellant acknowledged that an offender did not need to be found to be a continuing danger for the rest of his life, or to have no chance of rehabilitation, before a sentence of life imprisonment could be imposed. However, it was submitted that those factors were matters that would justify the imposition of a life sentence. In this case, the absence of either factor was to be given weight. Insofar as the appellant being a danger to society, it was submitted there was nothing of significance in his criminal antecedents. 256 Finally, the appellant sought to draw a distinction between this case and a case such as R v Ngo [2001] NSWSC 1021; (2001) 125 A Crim R 495. In that case, the trial judge was satisfied that Ngo's motive for killing the Member of Parliament, John Newman, was "naked political ambition and impatience", the deceased having stood in the way of Mr Ngo's wish to be the Legislative Assembly Member for Cabramatta. That offence involved careful planning, including the recruitment of others. Notwithstanding that a life sentence was imposed, the trial judge in that case indicated that he did not consider that Mr Ngo needed to be kept in custody for the whole of that time and said he would have fixed a non-parole period had he the power to do so (Ngo involved a different sentencing regime to the present). It was submitted that it was significant in Ngo that there were two features of the offence that made the maximum sentence of imprisonment for life applicable, namely, the actual killing itself, as well as the attack on the constitutional system of parliamentary democracy. In this regard, the killing of a Member of Parliament for political purposes was viewed as striking at the very fabric of our public institutions. It was submitted that there was no comparable consideration in this case. 257 However, the comparison with Ngo is not of any particular assistance. Indeed, it invokes no more than the comments of the High Court in Veen (No 2) to which we have already referred above at [245]. 258 In this Court's opinion, there was no error in the trial judge's sentencing approach. This was clearly a premeditated, planned murder for financial gain. It is not necessary to reiterate the matters the trial judge took into account. No error of principle has been demonstrated. Nor is this a case where the sentence imposed was so unreasonable that there must have been some underlying error in the sense described in House v R [1936] HCA 40; (1936) 55 CLR 499. Leave to appeal should be granted, but the appeal dismissed. ********** 13/07/2009 - typographical error - Paragraph(s) [98] and [103] 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.