Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Perish, Anthony v R; Perish, Andrew v R; Lawton, Matthew v R [2016] NSWCCA 89 Hearing dates: 8 September 2015; 9 September 2015 Date of orders: 20 May 2016 Decision date: 20 May 2016 Before: Bathurst CJ; Hoeben CJ at CL; Bellew J Decision: Anthony Perish: (1) Appeal against conviction dismissed. Andrew Perish: (1) In relation to Grounds 1 and 2 challenging the conviction, we would grant leave to appeal but dismiss the appeal. (2) In relation to Ground 4 in respect of sentence, we would grant leave to appeal but dismiss the appeal. Matthew Lawton: (1) In respect of Ground 1, appeal against conviction dismissed (2) In respect of each of Grounds 2, 3 and 4, leave to appeal refused. Catchwords: CRIMINAL LAW – appeal – conviction – miscarriage of justice – whether miscarriage resulted from admission of hearsay evidence – whether misdirection as to available use of hearsay evidence – whether miscarriage resulted from joint trial with co-accused – whether misdirection regarding plea of co-accused – whether misdirection as to matters which could be taken into account CRIMINAL LAW – appeal – conviction – evidence – whether hearsay evidence only inadmissible over objection – whether error in admitting credibility evidence – whether verdicts unreasonable or unsupported on evidence CRIMINAL LAW – appeal – sentencing – whether manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), s 424A Criminal Appeal Act 1912 (NSW), ss 5(1), 6(1) Criminal Procedure Act 1986 (NSW), s 21 Evidence Act 1995 (NSW), ss 38, 59, 102, 103, 106, 118, 137, 165(1)(a), 190 Cases Cited: ARS v The Queen [2011] NSWCCA 266 Atai v The Queen [2014] NSWCCA 210 Burrell v The Queen [2009] NSWCCA 193 Carroll v The Queen [2009] HCA 13; 254 CLR 259 Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 Gilham v The Queen [2012] NSWCCA 131; 224 A Crim R 22 Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232 Gray v Ware Building Pty Ltd [2013] NSWCA 271 House v The King [1936] HCA 40; 55 CLR 499 James v The Queen [2014] HCA 6; 253 CLR 475 Lee v The Queen [1998] HCA 60; 195 CLR 524 M v The Queen [1994] HCA 16; 184 CLR 487 MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 Markarian v The Queen [2005] HCA 25; 228 CLR 357 MFA v The Queen [2002] HCA 53; 213 CLR 606 Pemble v The Queen [1971] HCA 20; 124 CLR 107 Poniris v The Queen [2014] NSWCCA 100 R v FDP [2008] NSWCCA 317; (2009) 74 NSWLR 645 R v Hillier [2007] HCA 13; (2007) 228 CLR 618 R v Kaddour [2005] NSWCCA 303; 156 A Crim R 11 R v Le [2002] NSWCCA 232; 130 A Crim R 44 R v Lyberopoulos [2002] NSWCCA 280 R v Micallef [2002] NSWCCA 480; 136 A Crim R 127 R v Nguyen [2010] HCA 38; 242 CLR 491 R v Pham [2004] NSWCCA 190 R v Reid [1999] NSWCCA 258 R v Spathis [2001] NSWCCA 476 Ross v The Queen [2012] NSWCCA 207 Selstam v McGuinness [2000] NSWCA 29; 49 NSWLR 262 SKA v The Queen [2011] HCA 13; 243 CLR 400 TKWJ v The Queen [2002] HCA 46; 212 CLR 124 Velkoski v The Queen [2014] VSCA 141 Walker v Walker [1937] HCA 44; 57 CLR 630 WC v The Queen [2015] NSWCCA 52 Texts Cited: J D Heydon, Cross on Evidence (10th ed 2015, Lexis Nexis) Stephen Odgers, Uniform Evidence Law (11th ed 2014, Thomson Reuters) Category: Principal judgment Parties: Anthony John Perish – Applicant Andrew Michael Perish – Applicant Matthew Robert Lawton – Applicant Regina – Respondent Crown Representation: Counsel: Mr H Dhanji SC/Ms G Lewer – Applicant Anthony John Perish Mr J Trevallion – Applicant Andrew Michael Perish Mr P Lange – Applicant Matthew Robert Lawton Ms S Dowling SC/Mr F Veltro – Respondent Crown Solicitors: Legal Aid NSW – Applicant Anthony John Perish Archbold Legal – Applicant Andrew Michael Perish Matouk Joyner Lawyers – Applicant Matthew Robert Lawton Solicitor for Public Prosecutions – Respondent Crown File Number(s): 2009/1480022009/1501112009/145260 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: [2012] NSWSC 355 Date of Decision: 13 April 2012 Before: Price J File Number(s): 2009/148002 2009/150111 2009/145260 HEADNOTE [This headnote is not to be read as part of the judgment] Anthony Perish (the first appellant), Andrew Perish (the second appellant) and Matthew Lawton (the third appellant) were jointly charged with conspiracy to murder Terrence Falconer (the deceased). The first and third appellants were jointly charged with the murder of the deceased. The first appellant pleaded not guilty to both charges but guilty to manslaughter, a plea that was not accepted by the Crown. The second and third appellants pleaded not guilty to all charges. It was the Crown case that the first and second appellants, who were brothers, believed the deceased had murdered their grandparents. The Crown argued that the appellants planned and coordinated the abduction and murder of the deceased, who was on work release from Silverwater prison. The abduction was performed by three men including Witness E. Witness E's car had been altered with wheels provided by the third appellant to give it the appearance of a detective's car. The abductors, dressed as police officers, then purported to arrest the deceased. The deceased was handcuffed, subdued with chloroform or a similar agent, placed in a metal box and transferred to another van. Witness E then drove the deceased, unconscious in the metal box, to the first appellant's residence in Turramurra where the first and third appellants were waiting. There was conflicting evidence as to whether the deceased was alive when he arrived at Turramurra. It was submitted by the first appellant that his intention in directing the kidnapping of the deceased was to interrogate him and thereafter return him to prison. He submitted that the deceased was already dead when they opened the box at Turramurra. In a recorded interview with police, Witness E claimed the deceased was still alive when they reached Turramurra, that he attempted to get out of the box and that the first appellant slammed his head back down and shut the lid. At trial, Witness E claimed to not remember many of the key events but appeared to remember the deceased coughing in the back of the van when they arrived at Turramurra. After a number of unfavourable responses to questions regarding what was said in the recorded interview, Witness E was determined to be an unfavourable Crown witness and, after consultation between the parties, an edited transcript of the recorded interview was admitted into evidence (Ex AA). There was evidence that Witness E had given different accounts to different people, claiming that he was responsible for killing the deceased. Witness E claimed the reason for these different accounts was "because then if someone goes bad you can tell who". At trial, Witness C gave evidence that Witness E told him he was concerned that he was going to be in trouble with the first appellant because the deceased had died before he got to him but "[the first appellant] said that it didn't matter, that's how he would have ended up anyway". No objection was made to this statement by trial counsel for the first appellant. In an affidavit filed by the first appellant, trial counsel for the first appellant indicated that she had not objected to the evidence as she wished to have the initial representation, that the deceased had died before they got to the first appellant, admitted into evidence and believed this could not happen if she objected to the latter representation. It was common ground that after meeting at Turramurra, the first and third appellant and Witness E drove with the box to a property at Girvan, to which the first appellant had access. There they dismembered the body of the deceased using saw blades, packaged the body parts in plastic bags wrapped in chicken wire and disposed of the bags in the Hastings River. Witness E gave evidence that there were three plastic body suits available to be worn during the dismembering, plastic floor sheeting, a block and tackle to suspend the body and chemicals to clean the floor. It was the Crown case that the appellants had initially made plans to dump the body parts at sea. This was derived from the evidence of Witness A, a member of the Rebels Outlaw Motorcycle Club (the Rebels), of which the second appellant was also a member. His evidence was obtained across a number of meetings with police, often in situations where the detectives could not take notes. He stated that he was approached at his home by the third appellant's wife who handed him $1000 and told him to attend a dinner with the first appellant. A few days later, he was picked up by the second appellant and driven to dinner in Newtown. Present at the dinner were the first and second appellant. The first appellant proposed that he would pay for repairs to Witness A's boat so that it could be used to dispose of human remains beyond the Continental Shelf. The first appellant told Witness A he would be waiting at a wharf in the Central Coast with eskys containing the body parts. The second appellant dropped Witness A home, gave him $2000 for boat repairs and told him a phone would be dropped to him the following day. Witness A stated that he put the boat in for repairs the following morning. A receipt indicated that it was put in on 12 October 2001 yet phone records indicated that contact between Witness A and the second appellant began on 9 October 2001. A few days after the dinner, Witness A claimed the third appellant delivered a phone to him registered in the name McDowell (the McDowell phone) and told him it was from the first appellant. Around a week after the dinner, Witness A stated that he travelled to Newcastle and the Salamander Bay area for reconnaissance with Witness F, his girlfriend at the time. Phone records from Witness A's personal phones and a receipt from the Salamander Shores Hotel indicated he stayed there on 31 October 2001. Witness A stated that he saw the second appellant on a number of occasions when he arranged for money to be given to Witness A for repairs and expenses. Witness A claimed he saw the first and third appellants on three to four occasions when they visited him at his home to check on the progress of the boat. He claimed that he recorded each of these visits on security cameras but that Witness F had accidentally taped over all but one. On the second last visit, Witness A stated that the first appellant showed him a police document revealing the deceased was prepared to give evidence against the Rebels. On the last visit, of which Witness A still had a recording, albeit without audio, Witness A claimed that the first appellant had told him to hurry up because "this cunt goes Friday regardless". Witness A gave evidence that he never intended on following through with the plan. After the final meeting, there was no further conversation between Witness A and the appellants and the McDowell phone was turned off. Phone records indicated that the second appellant attempted to call Witness A's personal phone on the Wednesday and Thursday before the murder, which occurred on a Friday. The records could not establish if there was any attempt to contact the McDowell phone. Witness F did not recall Witness A being handed the $1000 by the third appellant's wife or taping over Witness A's security tapes. She denied travelling with Witness A to Newcastle and Salamander Bay. Witness A indicated that when he was approached by police he was in a state of hyper-vigilance and feared for his life as he had given evidence against the Rebels and had been stabbed 7 times when in custody in Lithgow gaol. While giving evidence to police he reported a number of bizarre incidents indicating paranoia. Witness A agreed to speak to the second appellant while wearing a listening device. On one occasion he said "I need to know that fuckin' piece of paper you showed me about Terry Falconer is gone because it's got my fuckin' prints on it", referring to the document the first appellant had shown him on the second last visit. The second appellant had answered "It's gone mate, don't worry". On another occasion, the recording was affected by background noise of which Witness A was not aware. He gave evidence that the second appellant said "nobody knows we done it". This was not audible on the recording. On a further occasion Witness A said "Remember the conversation we had? … And you said nobody knows who done it?" the second appellant said "Yeah" and Witness A said "Fuckin' everybody knows who done it". Witness B, a relative of the first and second appellant, gave evidence that the first appellant told him "we killed [the deceased] at [Witness E's] mother's property up the coast". He also gave evidence that the first appellant said to the second appellant "this cunt's been talking" and tapped the side of his nose. Witness B did not know that Witness A's nickname was "Nosey". The trial judge gave warnings to the jury that Witness A and Witness E's evidence should be scrutinised with care and was potentially unreliable by reason of them having been criminally involved in the matters about which they gave evidence. The issues on appeal were: First Appellant 1. Whether a miscarriage of justice was occasioned by the admission of the evidence of Witness C that Witness E told him that the first appellant said "it didn't matter [that the deceased had died before he got to the first appellant as] that's how he would have ended up anyway" (the second hand hearsay evidence); 2. Whether the trial judge erred in directing the jury with respect to the second hand hearsay evidence such that the evidence was available to the jury as evidence of an admission by the first appellant; 3. Whether the verdicts of the jury were unreasonable or could not be supported by the evidence where there was reasonable doubt as to whether the deceased was alive upon reaching Turramurra and otherwise rested significantly on the evidence of Witness A. Second Appellant 1. Whether the verdicts of the jury were unreasonable or could not be supported on the evidence where the verdict against the second appellant rested mainly on the evidence of Witness A; 2. Whether a miscarriage of justice occurred as a result of the second appellant being tried together with his co-accused; 3. Whether the sentence imposed was manifestly excessive. Third Appellant 1. Whether the verdicts of the jury were unreasonable and could not be supported by the evidence where the conclusion that the third appellant had any knowledge of the conspiracy prior to the deceased's arrival at Turramurra rested on the evidence of Witnesses A and E; 2. Whether a miscarriage of justice arose in circumstances where the trial judge directed the jury that the first appellant had offered to plead guilty to the offence of manslaughter where that plea was inadmissible against the third appellant; 3. Whether the trial judge erred in admitting Ex AA where the substance of Ex AA had not been put to Witness E in accordance with the prerequisites of s 106 of the Evidence Act 1995 (NSW) (Evidence Act); 4. Whether the trial judge erred in directing the jury that it could take into account evidence of Witness A being given money by the second appellant as evidence of the third appellant's participation in the charged conspiracy. The Court held (Bathurst CJ, Hoeben CJ at CL and Bellew J) dismissing the appeal: First appellant Admission of second hand hearsay evidence (i) In circumstances where trial counsel made a conscious decision not to object to the evidence and there was, objectively speaking, a rational basis for not objecting to the evidence, admission of the evidence did not mean the first appellant lost the chance of an acquittal fairly open to him: [254]-[259] (Bathurst CJ, Hoeben CJ at CL and Bellew J). TKWJ v The Queen [2002] HCA 46; 212 CLR 124 applied (ii) Even if it could not be said that the decision not to object to the evidence was a rational forensic decision, the first appellant did not in fact lose a real chance of acquittal where the Crown did not place reliance on the evidence complained of, where there was a caution about its use and where both parties contended the witness was unreliable: [274]-[277] (Bathurst CJ, Hoeben CJ at CL and Bellew J). ARS v The Queen [2011] NSWCCA 266; Poniris v The Queen [2014] NSWCCA 100 applied Trial judge's direction regarding the second hand hearsay evidence (iii) There is a consistent, although not uncontroversial, line of authority that the words "not admissible" mean "not admissible over objection". That construction is not plainly wrong: [261]-[269] (Bathurst CJ, Hoeben CJ at CL and Bellew J). R v Reid [1999] NSWCCA 258; R v Spathis [2001] NSWCCA 476; R v Lyberopoulos [2002] NSWCCA 280; R v Kaddour [2005] NSWCCA 303; 156 A Crim R 11; Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232; WC v The Queen [2015] NSWCCA 52; Selstam v McGuinness [2000] NSWCA 29; 49 NSWLR 262; Gray v Ware Building Pty Ltd [2013] NSWCA 271; Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 applied Velkoski v The Queen [2014] VSCA 141 considered Walker v Walker [1937] HCA 44; 57 CLR 630 distinguished (iv) The construction of "not admissible" meaning "not admissible over objection" is consistent with the adversarial nature of a trial: [268], [270]-[271] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1 applied (v) The effect of the supported construction is ameliorated by the fact that the trial judge retains his or her overriding obligation to ensure a fair trial according to law and would thus have an obligation to exclude inadmissible evidence or direct a jury not to take account of a particular piece of evidence if it would otherwise deny a fair trial: [272] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Pemble v The Queen [1971] HCA 20; 124 CLR 107; James v The Queen [2014] HCA 6; 253 CLR 475 applied (vi) Even if the trial judge's direction was erroneous, the first appellant did not in fact lose a real chance of acquittal where the Crown did not place reliance on the evidence complained of, where there was a caution about its use and where both parties contended the witness was unreliable: [274]-[277] (Bathurst CJ, Hoeben CJ at CL and Bellew J). ARS v The Queen [2011] NSWCCA 266; Poniris v The Queen [2014] NSWCCA 100 applied Unreasonable verdict (vii) Where a verdict is challenged as unreasonable, the appellate court is required to make its own independent assessment of the evidence. The verdict should be set aside only if the Court is still in doubt after taking into account the primary responsibility of the jury and its benefit of having seen and heard the evidence: [327] (Bathurst CJ, Hoeben CJ at CL and Bellew J). SKA v The Queen [2011] HCA 13; 243 CLR 400; M v The Queen [1994] HCA 16; 184 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606 applied (viii) It was not unreasonable for the jury to believe the evidence of Witness A where his evidence of what was proposed bore a marked similarity to what in fact occurred and to reject the hypothesis that Witness A had discovered this information from other sources and weaved it into his story: [330] (Bathurst CJ, Hoeben CJ at CL and Bellew J). (ix) Whether Witness A's testimony was put in doubt by his paranoid behaviour was a matter particularly for the jury who saw and heard his testimony: [331] (Bathurst CJ, Hoeben CJ at CL and Bellew J). (x) The objective evidence did not undermine Witness A's testimony such that there was reasonable doubt regarding the key elements of his testimony: [332], [334] (Bathurst CJ, Hoeben CJ at CL and Bellew J). (xi) Even if the jury rejected the evidence of Witness E in some respects, namely whether the deceased was alive upon reaching Turramurra, it was open for the jury to accept his evidence in other respects, in particular the material that was available to dismember the body at the Girvan property, which supported an intention to murder the deceased: [336] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Second appellant Unreasonable verdict (xii) When considering whether a verdict is unreasonable, the question for the Court is whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in the circumstances to let the verdict of guilty stand, or put another way, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: [350] (Bathurst CJ, Hoeben CJ at CL and Bellew J). M v The Queen [1994] HCA 16; 184 CLR 487; MFA v The Queen [2002] HCA 53; 213 CLR 606; R v Nguyen [2010] HCA 38; 242 CLR 491; SKA v The Queen [2011] HCA 13; 243 CLR 400 applied (xiii) Where a verdict is challenged as unreasonable on the basis of the credibility of a witness, the Court must be acutely conscious of the advantage of the jury in seeing and hearing the evidence the witness gave: [351], [354] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Atai v The Queen [2014] NSWCCA 210; MFA v The Queen [2002] HCA 53; 213 CLR 606 applied (xiv) Tortuous reasoning in order to explain every individual circumstance as being consistent with innocence should not be engaged in: [352] (Bathurst CJ, Hoeben CJ at CL and Bellew J). R v Micallef [2002] NSWCCA 480; 136 A Crim R 127; Burrell v The Queen [2009] NSWCCA 193 applied (xv) In circumstances where Witness A came under sustained cross-examination on each of the bases identified on the appeal, where his evidence was independently supported by extrinsic evidence, where the trial judge gave the jury all the warnings required by law and where discrepancies between his evidence to police and at trial were explicable, it was open to the jury to accept the evidence of Witness A: [355]-[368], [372]-[375] (Bathurst CJ, Hoeben CJ at CL and Bellew J). (xvi) Despite criticisms that Witness A exhibited paranoid behaviour, there were justifiable reasons for this and no indication of mental instability at the time of the trial. In those circumstances it was open to the jury to accept his evidence: [369]-[371] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Joint trial (xvii) No miscarriage of justice occurred where much of the evidence against the co-accused was necessary to establish the context in which the second appellant's participation in the conspiracy occurred. This factual matrix could not be dealt with by an agreed statement of facts where much of the evidence was controversial: [389]-[391] (Bathurst CJ, Hoeben CJ at CL and Bellew J). (xviii) Where the risk of inconsistent verdicts, inconvenience to witnesses and substantial delay is high, there is clear public interest in conducting a joint trial which is to be given weight in assessing whether there was a miscarriage of justice: [388], [391], [397] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Ross v The Queen [2012] NSWCCA 207 applied (xix) Where the evidence that could not be used against the second appellant, namely the admission by the first appellant to Witness B, was readily severable from the rest of the evidence and comprised a very small part of the evidence at trial, any prejudice was easily overcome by directions to the jury: [393]-[394], [396]-[397] (Bathurst CJ, Hoeben CJ at CL and Bellew J). R v Pham [2004] NSWCCA 190 distinguished Gilbert v The Queen [2000] HCA 15; 201 CLR 414 applied Manifestly excessive sentence (xx) In order for the second appellant to show that his sentence was manifestly excessive, it was necessary for him to show that the sentence was unreasonable or plainly unjust. It was not sufficient that the appellate court would have exercised its discretion differently: [411] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Markarian v The Queen [2005] HCA 25; 228 CLR 357; Carroll v The Queen [2009] HCA 13; 254 CLR 259 applied (xxi) The sentence was not manifestly excessive where the second appellant's role in the conspiracy was not found to be minimal. He was a committed and knowing participant in the conspiracy up until the day before the murder. The fact that the second appellant did not play an active role in the murder did not reduce his culpability for the conspiracy offence, rather it affected the charge brought against him: [412]-[414] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Third appellant Unreasonable verdict (xxii) Where the case against the third appellant was circumstantial, concentration on certain parts of the evidence to the exclusion of others was erroneous. When analysed as a whole, there were a number of circumstances that supported the conclusion that the third appellant was involved in the criminal enterprise not only after the death of the deceased but in the preparations leading up to it: [426]-[442] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Directions regarding the first appellant's plea (xxiii) There was no misdirection where the trial judge made it clear to the jury that, in determining the case against the third appellant, it was necessary to consider (a) the existence of the joint criminal enterprise and (b) the third appellant's participation in it and that it was imperative to consider the cases against each of the appellants separately by reference only to the evidence properly admissible against each of the appellants: [452]-[454] (Bathurst CJ, Hoeben CJ at CL and Bellew J). (xxiv) To show that the direction regarding the first appellant's plea led to a miscarriage of justice, it would be necessary to show that there was reasonable doubt as to the substance of that plea, namely that the first appellant was involved in the kidnapping of the deceased: [455] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Admissibility of Ex AA (xxv) As Ex AA was admitted without objection, it was admissible irrespective of the provisions of s 106 of the Evidence Act: [475]-[478] (Bathurst CJ, Hoeben CJ at CL and Bellew J). WC v The Queen [2015] NSWCCA 52 applied (xxvi) In any event, s 106 does not require the adoption of a mechanistic approach in which each and every proposition contained in the evidence is put to the witness. The substance of the evidence was put to the witness such as to satisfy s 106 of the Evidence Act: [479]-[480] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Direction regarding matters which could be taken into account (xxvii) Evidence which did not directly implicate the third appellant was nevertheless available to prove the nature and scope of the conspiracy: [489] (Bathurst CJ, Hoeben CJ at CL and Bellew J). (xxviii) When taken in the context of the summing up as a whole there was no misdirection, particularly where the trial judge repeatedly reminded the jury of the requirement to consider the case against each appellant separately, set out the matters specifically relied upon by the Crown to establish the third appellant's participation in the conspiracy and directed the jury that establishing the existence of the conspiracy was separate from establishing the third appellant's participation in it: [490]-[497] (Bathurst CJ, Hoeben CJ at CL and Bellew J). Judgment 1. THE COURT: Offences and sentence Anthony Perish and Matthew Lawton were jointly charged that: 1. On or about 16 November 2001 at Sydney in the State of NSW they did murder Terrence Falconer. Anthony Perish, Matthew Lawton and Andrew Perish were jointly charged that: 1. Between 1 January 2001 and 17 November 2001 at Sydney in the State of NSW they did conspire to murder Terrence Falconer. 1. In relation to the first count, Anthony Perish pleaded not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown. He and the other applicants pleaded not guilty to the second count. Matthew Lawton pleaded not guilty to the first count. 2. The matter came before the Supreme Court on 31 January 2011 before Price J. On 17 February 2011 it was adjourned as a result of the publication of prejudicial material regarding the trial. The matter came before the Court again for trial on 4 July 2011. The trial proceeded until it was aborted on 25 July 2011. 3. A new trial began on 27 July 2011. The jury retired to consider its verdicts on 5 September 2011 and on 13 September the jury indicated that they were unable to reach a unanimous verdict. A Black direction was given and the jury returned that day with verdicts of guilty to murder and conspiracy to murder against Anthony Perish. A verdict of guilty of murder was returned against Matthew Lawton. A verdict of guilty of conspiracy to murder was returned against Andrew Perish. A verdict of guilty to conspiracy to murder was returned against Matthew Lawton on 14 September 2011. 4. The applicants were sentenced as follows: Anthony Perish For the offence of murder – imprisonment with a non-parole period of 18 years commencing 19 March 2009 and expiring 18 March 2027 with a balance of term of 6 years, expiring 18 March 2033. For the offence of conspiracy to murder – imprisonment with a non-parole period of 10 years and 6 months commencing 19 March 2009 and expiring 18 September 2019 with a balance of term of 3 ½ years, expiring 18 March 2023. Andrew Perish For the offence of conspiracy to murder – imprisonment with a non-parole period of 9 years commencing 4 October 2010 and expiring 3 October 2019 with a balance of term of 3 years, expiring 3 October 2022. Matthew Lawton For the offence of murder – imprisonment with a non-parole period of 15 years commencing 27 January 2009 and expiring 26 January 2024 with a balance of term of 5 years, expiring 26 January 2029. For the offence of conspiracy to murder – imprisonment with a non-parole period of 7 years and 6 months commencing 27 January 2009 and expiring 26 July 2016 with a balance of term of 2 ½ years, expiring 26 January 2019. Crown case and overview of evidence 1. Anthony Perish and Andrew Perish believed Terrence Falconer (the deceased) murdered their grandparents. They also believed that the deceased was a police informer. To exact revenge, they directed the abduction of the deceased on 16 November 2001. At the time, the deceased was an inmate of Silverwater Prison and had been granted work release which allowed him to leave gaol and travel by train to a smash repair business at Ingleburn. 2. Evidence of the events, the subject of the charges, was primarily given by witnesses who were criminally involved. A number of these witnesses were identified by pseudonyms – "Witness A" through to "Witness H". 3. On 16 November 2001 three men, Witness E, Witness H and Craig Bottin (Bottin) attended the smash repair business at Ingleburn where the deceased was working. They impersonated police officers and purported to arrest the deceased, handcuffing him and placing him in Witness E's vehicle. The wheels of the vehicle had been modified so as to appear consistent with an undercover police vehicle. The vehicle was driven to a nearby location during the course of which the deceased was subdued using Chloroform or some other agent. 4. Upon reaching that location (referred to at trial as "the grassy embankment") the deceased was transferred unconscious from Witness E's vehicle to a metal box and placed in a van. Witness E then drove the deceased in the metal box from that location to Anthony Perish's residence in North Turramurra. It was not clear whether the deceased was dead by the time he arrived at Turramurra. Witness E said that he was met by Anthony Perish on his arrival at the residence at North Turramurra. He said that the metal box was opened and the deceased attempted to get up. He said that he and Anthony Perish assaulted the deceased and the box was closed again. 5. Witness E, Anthony Perish and Matthew Lawton, using two separate vehicles, drove with the box from North Turramurra to a property at Girvan to which Anthony Perish had access. By that time, the deceased was dead. The van was never located. At Girvan the body of the deceased was dismembered using saws and wrapped up for disposal. 6. It was the Crown case that preparations had been made in advance to destroy the deceased's corpse. A block and tackle was ready from which to suspend the body. Plastic sheeting was available and rolled out to cover the floor. Saws and other tools were on hand and chemicals were ready to clean the crime scene. Anthony Perish, Matthew Lawton and Witness E then cut up the deceased's body and parcelled it into seven separate packages which were wrapped in chicken wire and weighted with stones. 7. It was the Crown case that Anthony Perish and Andrew Perish had initially made plans to dump the body parts at sea. When those plans were frustrated, Anthony Perish disposed of the remains in the Hastings River. Six of the seven parcels washed ashore in various places along the Hastings River. The human remains in the packages were examined and sufficient fingerprint detail was found to identify the remains as those of the deceased. Some time later a resident living near the Hastings River found another package wrapped in blue plastic and bound using wire and duct tape. That package also contained human remains, later identified as belonging to the deceased. 8. The Crown case was that Anthony Perish, seeking vengeance, meticulously planned and co-ordinated the kidnapping and murder of the deceased. The Crown case was that irrespective of when and how the deceased died, Anthony Perish was guilty of his murder because he always intended that the deceased would die. The Crown relied on evidence of motive, means and opportunity given by three participants in the conspiracy to abduct and murder the deceased. The Crown also relied upon an admission subsequently made by Anthony Perish to a family member that "we killed him … killed Falconer" and forensic evidence from the North Coast crime scene. 9. At trial Anthony Perish accepted that he was responsible for some of the acts of Witness E. He admitted that he was part of a joint criminal enterprise to abduct the deceased. He asserted that the plan was only to abduct and question the deceased. He agreed that he foresaw the possibility that Witness E might use force resulting in the infliction of injury to the deceased that ultimately caused his death. Factual background in further detail 1. On 16 June 1993 the grandparents of Anthony and Andrew Perish were found murdered in their home at Leppington. There was evidence that Andrew Perish became extremely upset when he arrived at the home, screaming and crying. Despite inquests in 1997 and 2002, the murders remain unsolved. A number of people were considered as potential suspects: their son, Albert; their daughter, Elana; a solicitor named Justin Birk Hill; their granddaughter, Colleen; and a woman called Wendy Stott. 2. The first time the deceased's name was raised was on 15 March 2004 when an anonymous caller telephoned Burwood Police Station and claimed to a detective that the deceased had murdered the Perish grandparents. There was other evidence that the deceased had some involvement in the deaths. Police also received information that Robert Institoris and Witness A, who were both from the Rebels Motorcycle Club, had nominated the deceased as having been involved. 3. The police position in early 2001 was that there were rumours that the deceased was involved in the murder of the grandparents but there was no hard evidence. In early 2001 Anthony Perish recruited Witness E to investigate the murder of his grandparents. 4. Witness B had married into the Perish family. His brother-in-law was a serving NSW police officer. In March 2001 he had dinner with Anthony Perish who asked him to obtain some police uniforms for him. He did not ask Anthony Perish why and Anthony Perish did not tell him. Anthony Perish had not made such a request previously. About a month later Anthony Perish asked Witness B whether he had approached his brother-in-law about the police uniforms to which Witness B responded "Yeah, but he wouldn't do it". In fact Witness B never made the request to his brother-in-law. 5. Detective Inspector Bryne Ruse was a member of the strike force investigating the murder of the Perish grandparents. He was approached by Andrew Perish in June 2001 about the investigation. Thereafter he spoke to Andrew Perish on a number of occasions during which Andrew Perish expressed dissatisfaction with the investigation and suggested that there might have been a cover up by the police. Andrew Perish told Inspector Ruse that he had received information that the deceased admitted to two employees of a motor vehicle wrecker in Sydney that he had murdered the grandparents. Inspector Ruse spoke to the deceased's wife, who claimed to have some information from her daughter's boyfriend, Robert Institoris, that the deceased was involved in the murder of the grandparents. When Inspector Ruse spoke to the deceased, who was then in gaol, he denied the allegation and said that his wife wanted to keep him in gaol so that she could steal from him and that they were involved in a property dispute. 6. The deceased's former wife gave evidence that in the 12 months before his death she and the deceased were estranged. Her evidence was as follows. In 1996 the deceased gave her his brief of evidence which set out the assistance which he was prepared to give to police in respect of the Rebels Motorcycle Club and their drug activities. In 2001 she showed that document to a number of people, including Andrew Perish. She did this because the deceased was putting it around that she was informing on the Rebels. When she showed the document to Andrew Perish, he appeared to read it. She did not think he took it with him. 7. In cross-examination she agreed that when she gave evidence before the Crime Commission in 2002, she had said nothing about speaking to Andrew Perish at this time. She had lied to the Crime Commission because she did not want to bring Andrew into it and did not want him to think that she was an informer. She did not tell the police about meeting with Andrew Perish until November 2006. Witness A 1. Witness A had a nickname "Nosey". Except where otherwise indicated, the following evidence was given by Witness A. He was a member of the Rebels Motorcycle Club and had been since 1991. Andrew Perish had become a member of the Rebels Motorcycle Club some time after him. Anthony Perish was not a member of the Club but was associated with it. 2. In October 2001 a woman named Denise (Matthew Lawton's wife) arrived at the home he shared with his then girlfriend (Witness F). Denise told him "I got a message from our mate". When Witness A said "Who?", she said "Rooster" which was a nickname of Anthony Perish. She handed Witness A $1,000 and told him to buy some decent clothes to wear out to dinner. She said that Andrew Perish would come and see him in a couple of days. Her arrival on that day was unexpected. 3. Witness F gave evidence at trial. At the time she gave evidence she was experiencing health problems and was taking a number of medications that slowed her down and adversely affected her memory. She had been in a relationship with Witness A ten years before, for about two years. When she gave her statement to police in 2009, she did not have medical problems and her memory was better. She knew Denise, who had visited her on a couple of occasions. In cross-examination she said that Witness A had not told her that Denise had given money to him. She had no knowledge of Denise delivering money to him. 4. Between two and four days later Andrew Perish arrived in the morning in a maroon and grey Toyota Surf motor vehicle. He said that he would return around 7pm because they were going to dinner with "our mate". A Roads and Traffic Authority certificate of registration confirmed that a maroon Toyota Surf motor vehicle WPE 089 was registered in the name of Andrew Perish at that time. Andrew Perish returned that evening at around 7pm and drove Witness A to a suburb that he said was Newtown. After they met Anthony Perish, the three men went to a restaurant and had dinner. 5. During the dinner Anthony Perish said "So Nosey, what can you do for the company?" Witness A said, "What would the company have me do for them?". Anthony Perish said, "You've got a boat?" Witness A said that he did but it needed repairs. Anthony Perish said "If the boat was fixed, would it make it out to the shelf and back?". Witness A told him that it would and that he would be able to captain it. Witness A took "the shelf" to mean the Continental Shelf. There was a discussion about the cost of repairs and Anthony Perish asked whether if he gave Witness A a couple of grand tomorrow, he would put the boat in to be fixed. Witness A said that he would. Andrew Perish was present during the entire conversation. 6. Anthony then asked Andrew if he [Andrew] could give Witness A the couple of grand on the way home and Andrew said he could. Anthony Perish said to Witness A, "I want you to put the boat in – come up the Karuah River to Bulahdelah. There's a wharf up there. Come up to the wharf and I'll be waiting for you just like a fisherman with a couple of eskys because the cunt might be in a few pieces." Witness A said that there would be people everywhere and Anthony said "Mate, nobody will know any different, we'll just look like a couple of fisherman going out for a day's fishing". Witness A asked who it was that would be killed and Anthony said "Don't worry, it's no-one in the club". Witness A said "Who is the cunt?" and Anthony said, "Don't worry, it's not you". 7. Anthony Perish told Witness A that he would be paid $20,000 for the job. Witness A did not say anything but "Just looked at him" and Anthony sat back in his chair and said, "Tell you what, I'll pay you thirty grand". Witness A said "Half up front and half when the job's done" and Anthony said "No, no, no, I don't work like that". Witness A said "Well you pay me half up front and I'll incur the expenses". Anthony said "No, I don't work like that. We'll give you money for your expenses". Anthony Perish told Witness A that someone would drop off a mobile phone to him the next day. He mentioned a name but Witness A did not recognise it. He asked who it was and Anthony said it was the same person that drove the truck down to Adelaide when Witness A and his then partner Nicole moved to Adelaide. 8. Exhibit E was a large laminated map showing areas of the Central Coast, including Bulahdelah and Girvan and numbered photographs of boat ramps along the river systems. Anthony Perish had access to a property at 158 Brooks Road, Girvan where the deceased was dismembered. Girvan is approximately 10 kms from the Karuah River and 20 kms from Bulahdelah. 9. Witness A had met the deceased once in his life in 1999 in the visitors' section of the Remand Centre at Long Bay when they were both in custody. Witness A knew him by face and knew that he was in another bike club. They said hello and spoke about the deceased's daughter going out with Rob Institoris whom Witness A knew was in the Rebels Motorcycle Club. The topic turned to the Perish family and Witness A said, "I heard you killed the Perish grandparents". The deceased said, "Yeah, I heard that one too". 10. During the dinner with Anthony and Andrew Perish, Anthony told Witness A that he knew that the deceased had told him while they were in gaol that he had killed the grandparents. Witness A responded that he had a mobile phone in gaol and that if he had been given that information, Anthony would have known straight away. Anthony thought about it for a minute and said "Yeah, I guess". Witness A asked who had told him this and Anthony said "We got a phone call from Liz (the deceased's wife); it was she who said it". (When asked in the year 2001 whether he had had any contact, either direct or indirect, with the deceased's wife Witness A answered "Never met the woman, no".) 11. During small talk at the restaurant the name "Perry" was mentioned. Witness A asked Anthony Perish "Do you still see Perry?" to which Anthony replied "No, I don't like the cunt any more". When the three men left the restaurant Witness A accompanied Andrew Perish to his home where Andrew gave him $2,000 in cash for the repairs to the boat. Andrew Perish then drove Witness A home. 12. The following morning Witness A took his boat to Marine Scene at Campbelltown for repairs. Exhibit S was the service repair order from Marine Scene showing that the boat was received for repair on 12 October 2001 and a deposit paid on 19 October 2001. Witness A was subsequently advised that the cost of replacing one of the motors would be about $4,000 in addition to the $2,000 he had been given after dinner. After he received the quote, he contacted Andrew Perish who said "Just get it done" and agreed to pay the necessary amount. Andrew Perish provided further funding during October in order for the boat to be seaworthy. 13. Telephone records established various contacts between Witness A and Andrew Perish during October 2001. On 9 October 2001 Witness A's phone, Mobile 1, called Andrew Perish's phone four times between 3.12.59 and 3.14.28 but the calls were diverted. One call at 3.20.39 was answered and there was a conversation for 88 seconds. On the same date, Witness A's phone, Mobile 2, called Andrew Perish's phone at 14.08.38, 14.33.01 and 18.57.12 and those calls were diverted. Mobile 2 sent a text message to Andrew Perish's phone at 18.58.39. On 10 October 2001 Andrew Perish phoned Witness A's Mobile 1 at 1.05.36 and that call was diverted. At 1.06.23 Andrew Perish phoned Witness A's Mobile 2 and that call was also diverted. On 11 October 2001 Mobile 2 rang Andrew Perish at 21.11.49 and that call was diverted. On 12 October 2001 Mobile 2 rang Andrew Perish at 15.15.02 and that call was diverted. On 25 October 2001 there was a Mobile 2 text message to Andrew Perish. On 26 October 2001 there was a Mobile 2 text message to Andrew Perish and two calls to him. There were two text messages from Andrew Perish to Mobile 2 on that day. On 27 October 2001 there was a Mobile 2 text message to Andrew Perish. On 28 October 2001 there were three Mobile 2 texts to Andrew Perish and one call. There were four texts from Andrew Perish to Mobile 2 and one call to Mobile 2. 14. A few days after the meeting at the restaurant, Matthew Lawton arrived at Witness A's home in a white EL utility Ford and gave him a mobile phone. He told Witness A "This is the phone from Steve" (Steve was one of the nicknames of Anthony Perish). Witness A said "Who?" and he said, "Rooster". He also said "Keep it on and charged and don't use it for anything other than contacting each other". At that time, Witness A did not know Matthew Lawton's name but recognised him as the man who had driven him to Adelaide. The phone handset was a Motorola Talkabout model and came with a prepaid Optus SIM card, subscribed in the name "McDowell". 15. Witness F said that Witness A did not tell her about a man delivering a mobile phone to him. Witness A did not tell police until his ninth meeting with them on 4 October 2002 that it was Matthew Lawton who had delivered the mobile phone to him. The mobile phone in the name of John McDowell was activated on 29 October 2001 at 14.52.42. On 29 October 2001 at 9.22.15 Andrew Perish rang Witness A's Mobile 2 and spoke for 30 seconds. Following the activation of the McDowell mobile, the Andrew Perish number did not initiate contact with Mobile 1 or Mobile 2 until 14 November 2001. 16. Although Matthew Lawton gave Witness A instructions not to use the McDowell phone to contact anyone other than Anthony and Andrew Perish, Witness A did not follow those instructions and used the phone to call Marine Scene, his home phone and possibly other numbers. He did this so as to "leave a traceable trail" because he had no intention of carrying out the job. At this time he believed that he was either being set up or lined up to be killed himself. 17. Whereas phone records for the McDowell phone could record outward calls, there were no charge records recording incoming calls for the McDowell phone. 18. Subsequent to the dinner meeting, Anthony Perish came to Witness A's home on three or four occasions. On the first occasion between 6 and 10 days after the boat was taken to Marine Scene for repairs, Anthony Perish and Matthew Lawton visited Witness A to check on the progress of the boat. Matthew Lawton was driving the same white EL Ford utility as when he delivered the phone. Witness A was not expecting them so when they arrived he started recording from the security camera which he had installed just after the phone was dropped off. To the best of his recollection, they had a conversation next to the car, near the front door of his house. Matthew Lawton was present during the discussion between Witness A and Anthony Perish in respect of the progress of the repairs to the boat. Witness F knew that Witness A had a security camera on the gate, but had never seen any of the videos he made of people coming to see him. She did not recall accidentally taping over any videos of people coming to see him, nor that he was angry that she had taped over the videos. Witness A gave evidence that the reason why he did not have a video of each visit to him by Anthony Perish was because Witness F had accidentally taped over those videos. 19. Possibly within a week of the dinner with Anthony and Andrew Perish, Witness A took a trip to Newcastle with Witness F. His destination was Salamander Bay because it had a boat ramp next to the pub that was not too close or too far away from Bulahdelah. On the way he stopped at the Waterways office in Newcastle and requested a duplicate set of papers for the boat which was registered in Witness F's name. He also picked up four maps of the surrounding waterways and areas of Newcastle, Salamander Bay and Myall Lakes. He attended the Newcastle Waterways office to assist him in leaving a trail. He believed that the boat was still at Marine Scene being worked on at this time. He did not take the boat with him. 20. Witness F said that at the time she and Witness A separated just before Christmas 2001, they had plans to go away in the boat, up near Newcastle. Witness A had taken the trip. She did not know if he had gone alone but she knew he had met a woman up there. She did not remember taking an overnight trip with him in the months leading up to their separation. The only occasion that she could remember them being on the boat was on the Nepean River at Penrith. She had never been to Soldiers Point, Soldiers Bay or Salamander Bay on the Central Coast. 21. Witness F said that Witness A went "to see a bloke that lived by himself on an island. Around this time he did go up to the Newcastle area with the boat and a girl called Annie from Minchinbury on a holiday". Witness F did not go because they had been having arguments. Witness A was still living with her at the time he took the trip with Annie. Witness F did not recall the boat being away from the house for a couple of weeks to be repaired. 22. After the stop at the Waterways office in Newcastle, he and Witness F continued up to Salamander Bay. They stayed overnight at the Salamander Shores Hotel. Exhibit R was the receipt from the Salamander Shores Hotel dated 31 October 2001. They returned to Sydney the next day. During that period of traveling and staying overnight Anthony Perish rang Witness A on the McDowell phone and they spoke about the reconnaissance of the waterways. 23. Telephone records (Exhibit HH) showed calls made by Mobiles 1 & 2 on 31 October 2001 and 1 November 2001 being picked up by communications towers at Narong, Glovers Hill, Nelson Bay and Rydalmere. On 1 November 2001 (at 18.45.52) and on 2 November (15.47.54) Mobile 2 sent text messages to Andrew Perish's mobile phone. Cell tower locations are not available for text messages. 24. Witness A marked the map of Port Stephens with a line from the Salamander Bay Hotel pointing up through the Karuah River, an "X" at Tea Gardens and an "X" at Jimmy's Beach. On the second last visit from Anthony Perish, he and Witness A discussed the Karuah River and the information Witness A had found out about that river including depth, speed restrictions and police presence. They were standing in the boat as they discussed this. Witness A complained that there were too many police and speed restrictions. Anthony said, "What about here?" while pointing to Tea Gardens on the map, so Witness A put an "X" at Tea Gardens. Witness A made the other markings during the discussion. The boat ramp at Salamander Bay was where the boat was going to be put in. Witness A eliminated Bulahdelah because of information he had received that there was a four or five knot speed restriction throughout the river. 25. It was common ground that there was no connection between the Hastings River and the Bulahdelah River or the Myall River. To get to the Bulahdelah River, one would go up the Myall River and the Bulahdelah River ran off it. The Myall River was in a different river system to the Karuah River, although they had the same inlet, Port Stephens. 26. Witness A saw Andrew Perish a number of times after the Newtown dinner. He saw him at his [Witness A's] home on more than three occasions. He remembered two specific instances that he saw Andrew Perish at other places - once at the Rossmore shops on Bringelly Road and the other was at Dan Perish's place. The occasion at Bringelly was not a planned meeting. 27. The recollection of Witness A was that the total for the repairs to the boat was around $5,000. There were other expenses incurred as a result of the trip to Salamander Bay. After he spoke to Andrew Perish and indicated that the repairs involved a greater sum of money, Andrew told him to go ahead with the job. Arrangements were made for Witness A to pick up some money from Dan Perish's (Andrew's brother's) place at Rossmore. His memory was that Andrew picked him up from his house and drove him there, where he was given $3,000 to cover the cost of all the necessary repairs to the boat. Andrew then drove him home. On another occasion Andrew Perish gave Witness A $1,500 to cover expenses. The amounts were clarified to be: $2,000 from Andrew at his house at Eagle Vale; $1,500 from Andrew at the property at Greendale; $3,000 from Andrew at his brother's place; and $1,800 from Anthony Perish for expenses at the second last meeting at Witness A's house. 28. On the second last visit by Anthony Perish and Matthew Lawton (which was either the second or third visit) Anthony Perish handed Witness A a police document or what seemed to be a police document with the deceased's name on it. It stated that the deceased was prepared to give evidence to the Crime Commission against the Rebels Motorcycle Club in Dubbo in relation to their drug dealing. Matthew Lawton was present when Witness A was handed the document. Witness A was standing between the front seat and the open door of the white utility. Anthony Perish was standing right next to the seat. Matthew Lawton was sitting in the driver's seat. 29. Witness A was shown a document during his evidence in chief. He did not think it was the same document that Anthony Perish had shown him but the content of paragraph three said the same thing, "Not in those words but pretty much what it said". 30. On the last visit by Anthony Perish and Matthew Lawton to the home of Witness A, there was discussion about the boat being ready. Witness A said it had to be "run in". Anthony Perish said to him "Get on with it" and "Hurry up because this cunt goes this Friday regardless". This last visit was on a Friday and the deceased went missing the following Friday. Each of the visits was recorded by Witness A using the surveillance system that he had installed. He had a recording of the last visit but did not know what happened to the other tape recordings. Exhibit N was the video recording of the last visit. There was no audio. Witness A said that it was when he and Anthony Perish walked away from the car that Anthony Perish said "This cunt's going this Friday regardless". Exhibit N showed Witness A and Anthony Perish walk to the gate. At the gate Anthony Perish said: "You'll come up, you'll pick up a couple of eskys, you'll go out and take them out to the continental shelf, you will empty out the contents over a big hole using a depth sounder. On the way back wash those eskys out half way back and throw them over the side. When you get back, wash the boat out with ammonia." Witness A said: 'Huh?' Anthony Perish said: 'If you wash it out with ammonia they can tell there's been blood in the boat but they can't tell whose it is. It fucks the DNA.'" 1. Witness A raised with Anthony Perish that the plan seemed to have changed to him going out by himself. He said "What, you're not coming with me?" Anthony said "Nah, that's what I'm paying you for". It was also at the gate that Anthony Perish said "Hurry up, this cunt's going this Friday no matter what". 2. Witness A did not recall any discussion before Anthony Perish and Matthew Lawton left about whether there would be any further contact connected with the plan in the following days. There was in fact no further contact after the last meeting. Witness A switched off the McDowell phone after the last visit by Anthony Perish on the Friday. 3. Phone records (Exhibit HH) show that Andrew Perish's phone called Witness A's Mobile 2 phone on 14 November 2001 (the Wednesday before the deceased was abducted) at 19.27.21, 19.39.41 and 19.46.44 and on each occasion was diverted to voicemail. On 15 November 2001 Andrew Perish's phone called Witness A's Mobile 2 at 9.57.34 and 9.58.56 and each call was diverted to voicemail. The McDowell phone was used daily to make calls until Tuesday, 12 November 2001. There was then a gap of eight days when no calls were made until Tuesday, 20 November 2001. 4. Witness A did not participate in the disposal of the remains of the deceased and never had any intention of doing so. He confirmed that on each occasion that Anthony Perish attended his house in relation to the boat, Matthew Lawton was the driver. He said it was "quite possible" that Lawton spoke to him about the boat, but he could not recall. Matthew Lawton was present during conversations between Witness A and Anthony Perish about the boat and was present when Anthony Perish gave him the police document to read. 5. Before his reconnaissance in the Salamander Bay region, Witness A had been there many times, the last time having been around 1982 when he went fishing with his father. He had never heard of Girvan until after the deceased's death. 6. Witness A learned of the abduction of the deceased from the news media on the Saturday after he was abducted. On the morning of Thursday, 29 August 2002 police knocked on his door and told him that they were investigating the murder of the deceased. Between the time he last saw Anthony Perish and the police arriving on 29 August 2002, Witness A did not approach police or any other authority and indicate his knowledge in relation to the matter. 7. The police note (Inspector Jubelin) in relation to 29 August 2002 stated: "[Witness A] stated that Steve Perish had approached him after his release and he believes without ever being told specifically, tried to recruit him to participate in some way in the murder of Terry Falconer and/or the disposal of his remains". 8. When the police arrived on 29 August 2002 Witness A indicated to them that he might have some information. During the course of his assistance to police, he agreed to speak to Andrew Perish while wearing a listening device. One occasion when he participated in this procedure was at Andrew Perish's place of work at Camden on 30 September 2002. He explained the contents of that conversation. When he said, "Don't need this shit mate, that's why I pulled out of the fuckin' job in the first place", he was referring to the disposal of the deceased's body. When he said "and sort the fuckin' money out too, all right" he was referring to the $8,300 that had been paid to him. During the recorded conversation Witness A asked Andrew Perish what he should say to police. Andrew Perish said "They're not going to want you to say nothing about knocking the other thing". When he said "I'm not a weak cunt mate. It's just things weren't right, I was fresh out of gaol", he was referring to having been released from gaol in 2001. "I need to know that fuckin' piece of paper you showed me about Terry Falconer is gone because it's got my fuckin' prints on it" referring to the document Anthony Perish had shown him on the second last visit. Andrew Perish had answered "It's gone mate, don't worry". 9. On 1 October 2002 Camden police provided Witness A with the sum of $1,000 to give to Andrew Perish in part repayment for moneys pertaining to the boat. Witness A attended Andrew Perish's business premises in Camden and had a conversation with him that was recorded by a listening device (Exhibit U). Witness A gave Andrew Perish the $1,000 and asked "Do I have to pay the whole eight and a half or just fuckin' … 'cause I don't really wanna fuckin' put a new motor on the boat" which referred to the money he had been paid in preparation for disposing of the body. 10. On 16 October 2002 Witness A again engaged Andrew Perish in conversation in Camden, while wired with a recording device (Exhibit V). At the time there was background noise of a compressor on one of the fridges. Witness A gave evidence that Andrew said in a whisper "Nosey, Nosey, nobody knows we done it". Witness A believed this should have been recorded in the transcript of the conversation at p 5, 1.30.15 "where it commences". He could not recall what he had said to elicit that answer. The words "Nosey, Nosey, nobody knows we done it" are not recorded in the transcript. 11. Exhibit X was the recorded conversation between Witness A and Andrew Perish on 17 November 2002 at premises at Camden. In that conversation Witness A referred to the job involving the disposal of the deceased's body. Later in the conversation, Witness A continued to tell Andrew Perish that he did not want any part of it and for Andrew to sort it out. At p 9 of the transcript, Witness A said "Remember the conversation we had? At the back of the place? And you said nobody knows who done it?" Perish said "Yeah". Witness A said "Fuckin' everybody knows who done it". Here Witness A was referring to the conversation of 16 October 2002, which was not audible. 12. At pp 18-19 of the transcript, Witness A said "Listen Frank's also the one who told me that you called me a weak cunt because I didn't go through with the job for ya. So you go fuckin' talk to Frank. That's why I came down the fuckin' track that night". Andrew Perish said "That cunt likes to cause as much trouble as he can that cunt". Later Witness A said "Well that's Frank, the photos are Frank's because he told me you were setting me up. I see you with Perry?" Andrew Perish said "But that's not the case I'm not fuckin' … ". Witness A said "You've always trusted me yeah?" and Perish said "Yeah we fuckin' do, mate". 13. In cross-examination Witness A was not able to remember the name of the restaurant where he had dinner with Anthony and Andrew Perish. He said that when the police spoke to him on 29 August 2002 they said "we've got nothing, anything you know or anything you can tell us?" and he said "It just so happens I can tell you who, where, when, how. If you meet me at another address tonight I will take it from there". 14. He agreed that in late 1996 and again in 1997 he had gone to the NSW Crime Commission as a result of a warrant he requested to be activated. He had given the Crime Commission information, his aim being to get bail so he could prove that he was not guilty of the offence for which he was incarcerated. He had not seen Detective Browne's investigator's notes about the detectives' meetings with him. He had communicated with Detective Browne "dozens and dozens of times". On some occasions he thought that the police were watching him with helicopters and had taken photographs of helicopters. He thought that one helicopter looked like a police helicopter with no markings on it and it seemed to be carrying a camera. He had contacted police when he observed four Jatz crackers in the swimming pool at his home which he believed indicated that somebody had been in his yard while he was asleep and put them in the pool. 15. There was an instance when a man had walked into a shop with a golf club in his hand with the word "Hush" written on the cover. The man had handed the golf club to the attendant behind the counter and asked her to look after it and then drove off. Witness A believed that this was a message to him to "Shut the fuck up", and that he "was talking to the wrong people". He further reported a break-in by individuals who were using a car with the licence plate HSV-DNA which he believed indicated there was a plan to collect his DNA. 16. There was a period when he did not trust the police. He made two phone calls to police and mentioned in those calls that he was going to Channel 9. It was after those calls that the incident with the Hush golf putter took place. He went to Channel 9 and later Channel 7 because he wanted someone other than the police to know what was going on. At the time he did not trust the police "full stop". As far as he knew, three police officers had abducted the deceased, who was later found in bags, allegedly killed by police. He believed that the police wanted him dead so he wanted a third party to know what was going on. 17. He was in a state of "hyper-vigilance from the word go; not distressed. I was hyper-vigilant, yes". He believed that a lot of suspicious things had happened "a lot of things happened in that highly stressed environment. It may or may not have been what I thought at the time, but it happened". It was his belief at the time that he was being set up. He did not trust the police and did not think that they were being honest with him "when this first started". 18. He did not try to deceive police when he was speaking to them, but he did hold things back. What he told them was true. They came to his door and "it was a split second decision to give them the video" and to tell them what he knew, because he "never had any intention of going through with any job". He had not approached police because initially he believed that he was the target. He was never told that the deceased was the one that was going to be killed. Although he was suspicious of the police, he was talking to them because he "needed to know what the hell was going on". 19. He made his statement to police in a secure location over four days for a number of hours each day. Police then took away their computers, printed it out and gave him a copy. He declined to sign it at that stage. He made some adjustments to it and signed it at another time. His belief was that if he were not the target, he was going to be set up with somebody else's murder. He denied he was called "Nosey" because he made up stories about people. He had acquired his nickname in 1985-1986 when he used to ride in a different motorcycle club. When he saw members talking, he would go over and say "What's going on, what's happening?" He was often told "Piss off you nosey bastard". He said that the nickname suggested that he was a "sticky beak". It did not suggest that he was a gossip. 20. He agreed that he was seriously injured when stabbed seven times while in custody at Lithgow before he was released to parole in 2001. After he was released, he had grave fears for his safety if he went back to gaol because of the information he had supplied to the Crime Commission about the Rebels. He was on parole at the time police knocked on his door and remained on parole during the time he assisted police. 21. He had taken amphetamines over the years. He may have had a cone of marijuana to help him sleep when he was stressed during the investigation. He agreed with the proposition that "giving amphetamines a decent going over" could make him paranoid. In conversation with the police, he recalled the word "paranoid" being used on occasions. When asked if he thought he had been paranoid he said, "Well if I was, I was still alive and if I was paranoid and didn't see what I thought I saw, that's okay with me, I'm here today". 22. He had never before worn a listening device. Straight after he heard the confession from Andrew Perish, he sent a text message to police. He believed the confession had been captured on the tape. When he was asked where it had gone, he said "Behind the compressor or noises". He had heard it; he could not explain the recording equipment. He said, "I know when it took place and I believe I can hear the whisper, but I can't explain it for you, or anyone else's hearing. I was there and I know it was said". Witness A said: "I believe I said that at one stage, that I had listened to the recording, what I believed was the original recording, and I believe I can hear it. I know what conversation took place before and after and I also know where we were sitting and how it was said. It was said in a whisper and it was covered by the sound of the compressor. That's all I can say." 1. He had been found guilty of murder at trial and had successfully appealed his conviction. After his conviction was overturned, he had pleaded guilty to manslaughter on the basis that he had been present at the scene. 2. At the time that he was giving evidence at trial he had a new identity and had been relocated, partly as a result of the investigation of the murder of the deceased. When asked if police had assisted him, he said he had changed his name legally and requested where he wanted to go. After he went to the Crime Commission in 1997 an anonymous letter was sent to the gaol, so he was moved to Goulburn. Another anonymous letter was sent to the effect that he was going to be killed there, so he was moved back to Long Bay. He was in Lithgow Gaol when he was attacked and stabbed seven times and seriously injured. 3. He could not remember exactly when he put the cameras up at his home, but it was after the McDowell phone was dropped off at Bringelly. He denied that he was making up the evidence as he went along. He said, "It's been ten years … I can't be perfect". What was in his statement was the truth; and the reason he did not recall bits and pieces was because he had not learned it word for word. He did not read his statement every day. He just wanted to forget the whole incident. He was able to distinguish the second last meeting from the last meeting because the video did not show a document handed to him at the car, did not show them hop in the boat and the boat did not shake. 4. The video depicted the last time Anthony Perish came to his house on 9 November 2001. Watching the video refreshed his memory that on that occasion he and Anthony Perish did not get into the boat and look at maps. At no time did he tell Anthony Perish that he was not going to go through with the job. He was just "running in parallel with them and seeing what happens". He was doing everything he could to delay the matter while trying to find out what was going on. When he asked at the Newtown dinner "Who is the cunt?", he was told it was none of his business. At the last meeting, the plans had changed from "we" to just him [Witness A] taking the boat up so he decided he was not the one who would be killed, but that he was possibly being set up. He thought that having his prints on the document about the deceased was part of the set up. Detective Browne 1. Detective Browne spoke to Witness A for the first time on 29 August 2002. He gave the following evidence. Initially police had some information from Corrective Services that suggested that Witness A may have had some involvement with the deceased. He was accompanied by Detective Rankin and they arrived at Witness A's house just before midday. Witness A took them around the side of the house where they had a conversation. They told Witness A that they were there to speak to him regarding the murder of the deceased. Witness A asked "Where do I fit in?" Detective Rankin said "Do you know Terry Falconer?" and Witness A said "Look, I know who did it, and I know why they did it, but I don't know if I should be telling you". He told them to come back at 8pm, just the two of them, and not to tell anyone. He gave them a different address to attend that night. 2. Detectives Browne and Rankin met Witness A that night at the new address. He took them to a small flat at the back of the house where they had a discussion. Not long into the discussion Witness A produced a video (Exhibit N) and played it for them. Thereafter Detective Browne had meetings with Witness A in various discreet locations during the day and night. Police did not know what he was going to tell them so they just let him speak. On some occasions, Detective Browne took notes but on other occasions it was not possible to do so at the time. When police first spoke to Witness A, he was very much against giving a statement and it took some time to get him to agree to the listening device operation. 3. When Witness A played the video (Exhibit N), he said that on that occasion 'Steve' Perish (i.e. Anthony) handed him a police running sheet that indicated that the deceased was a police informant and had stated to police that he was prepared to assist them and provide information regarding the Rebels at Dubbo and their involvement in the manufacturing of amphetamines. He had recorded in his notes that at the dinner at Newtown, 'Steve' asked Witness A "Did Terry Falconer tell you that he killed our grandparents? Liz Falconer told us that Terry told you in gaol he killed my grandparents". Witness A told Detective Browne that "he had never had this conversation and believed it was caused by Liz Falconer causing trouble as she was a conniving bitch". He recorded in his notes the next day that Witness A told him that "Steve and Andrew had maps of Newcastle to Bulahdelah area". Inspector Jubelin 1. Detective Inspector Gary Jubelin was the officer in charge of the investigation from 2 December 2001 until November 2004 when he left the Homicide Squad, after which Detective Browne was the officer in charge. He first met Witness A on 6 September 2002. Except where otherwise indicated, his evidence was as follows. Witness A had met with Detectives Browne and Rankin on two previous occasions. Witness A had not yet made a statement but had provided information. During this first meeting, Inspector Jubelin raised with him the possibility of meeting with the persons of interest while wearing a listening device. On 25 September 2002 Witness A agreed to do so. There were two benefits to this operation. One was to establish if Witness A was being truthful and the second was to gather additional information and corroborative evidence. Certain details were withheld from Witness A to protect the integrity of the investigation and also police methodology. Specifically, Inspector Jubelin did not disclose the malfunction of the listening device to Witness A as it would have been detrimental to future operations because Witness A had participated at what he considered significant risk and the police had let him down with the failure of the technical equipment. 2. The first recorded conversation took place on 30 September 2002 and the second on 1 October 2002 when Witness A was provided with $1,000, which was to obtain corroboration from Andrew Perish that Witness A had received money in relation to his boat. The poor quality of the recording of 16 October 2002 was because the primary device placed on Witness A, which was to provide the best quality recording, failed very early in the operation. It stopped recording and did not restart. The second device was a back-up device. Witness A was never told that the device had failed and still did not know. Inspector Jubelin was aware that Witness A believed that the quality was impaired due to the background noise of a compressor or refrigerator. Inspector Jubelin had listened to the tape alone and with Witness A and was unable to hear the words that Witness A asserted were said. Police endeavoured to enhance the quality of the tape but that was unsuccessful. 3. After November 2003 Witness A was treated as a witness and not involved in the investigation. He "got on with his life" and there was very limited contact between him and police for about four years. 4. In about July 2003 Inspector Jubelin's assessment of Witness A was that he was under extreme stress. Inspector Jubelin said: "He had broken a code; a code that he had been living by since he was about 14, and that code I am referring to relates to dealings and assisting police. He had not only assisted the police, which was breaking the code in which he was living, but he had participated in listening device operations and probably worse still, in his mind, he had signed a statement to police in regards to a serious criminal matter. I am not a medical person, but from my observation of him at the time, I thought that he was a person on the verge of a nervous breakdown and for that reason, I thought it appropriate, and so did the then Homicide Superintendent, decide that we make available to him the services of a psychiatrist." 1. In 2003 police provided money and helped facilitate Witness A's relocation. He was provided with a new identity and this was done at the State's expense. It was mainly Inspector Jubelin and Detective Browne who met with Witness A. The meetings with Witness A were covert so they did not take notes while he was speaking and did not tape record the conversations. They made the notes as contemporaneously as they could and worked off their recollection. 2. Witness A gave Inspector Jubelin information that while he was in gaol Rob Institoris told him that the deceased was going to the Crime Commission to tell them everything he knew about everyone. Witness A believed Liz Falconer became aware of this and rang Anthony Perish and told him. Inspector Jubelin knew that Rob Institoris was married to the deceased's daughter Linda, and the boat the subject of the investigation had been owned by Institoris. It had been transferred to Witness A because Institoris was indebted to him, because Witness A had taken the blame for a murder that Institoris had committed. 3. Between 29 August 2002 and November 2003 police had 58 face-to-face meetings with Witness A and countless telephone calls and text messages. Witness A had a concern about going back to gaol. Inspector Jubelin emphasised that the investigator's notes were made from conversations to the best of his and Detective Browne's recollections, but that they may not be completely accurate. It was Witness A's statement that should be relied upon. Witness A's statement to police was taken over seven days from 8 May 2003. On 29 May 2003 Witness A was provided with a draft incomplete copy of the statement. On 17 June 2003 there was a meeting to work on the statement. On 19 June 2003 he was provided with a draft copy of the unsigned statement. On 14 July 2003 there was some further work on the statement and on 15 July 2003 Witness A signed his statement. 4. Inspector Jubelin asked Witness A to keep them informed of anything that concerned him, in view of the fact that they were at a sensitive stage in the investigation. Witness A was seeing threatening things in his environment and relaying them to police. Both he and Detective Browne believed Witness A was "slightly paranoid with his activities with police". Inspector Jubelin believed that Witness A "saw what he said he saw. What I took issue with was his interpretation of what he saw". 5. It was on 19 July 2003, shortly after signing his statement on 15 July 2003 that Superintendent Kaldas and Inspector Jubelin spoke to Witness A and offered the services of a psychiatrist. The signing of the statement "was a pivotal moment, I believe, in his thought process at that particular point in time. He always had concerns that once he signed off on the statement, that things were out of his control; police then had a document that we wanted and I think he felt extremely stressed and vulnerable at that time". At one point, Witness A believed that "crooked police were behind the abduction and murder of Terry Falconer". Despite the suggestion that he see a psychiatrist, Witness A declined to do so. He said that he would see a psychiatrist of his own choosing, but Inspector Jubelin did not know if he did so. Although Witness A had some complaints, they were not to the same extent after November 2003, when Witness A obtained his new identity and was relocated. There was little contact between him and the police from that time until 2007. The abduction and death of the deceased 1. The deceased was on work release after serving the bulk of a sentence for offences of manufacturing drugs. He was a panel beater by trade, and was employed by his friend, Alan Morcomb, who owned a smash repair business at Ingleburn. The deceased worked Monday to Saturday and the occasional Sunday. He generally arrived about 7.30-7.45am and left at 4.30-5.00pm to return to Silverwater Prison, travelling by bus and train. He was required to be back at the prison by 7.00pm. 2. On the morning of Friday 16 November 2001, the deceased caught a train from Silverwater Prison to Ingleburn Railway Station and walked a short distance to the smash repair business to work for the day. He was required to wear a Corrective Services ankle bracelet. The ankle bracelet contained a monitoring device which could track his location. However, there was no electronic monitoring box at the smash repair business because the conditions of the workshop would interfere with transmission. In those circumstances, random checks were carried out by Corrective Services by attending with a hand monitor and checking manually. Although the ankle bracelet will emit a signal if it is damaged, there needs to be a box or hand held monitor within range to receive the signal. 3. On the afternoon of 16 November 2001 Mr Morcomb left the workshop at 1.30pm or 2.00pm to make a delivery. When he returned around 3.00pm the deceased was gone. The foreman told him that the deceased had been taken by detectives for questioning. His daughter, who worked in the office, had already rung the gaol and was told that they knew nothing about it. Mr Morcomb went to the Macquarie Fields Police Station to make an enquiry about it. Police checked the computer and said there was no record of the deceased being taken to a police station. Mr Morcomb told police that he thought something was not right. He rang the gaol at 7:00pm and was told that the deceased had not returned and would be listed as an escapee. 4. George Kaillis was the head spray painter at the business and saw a blue Ford or Holden arrive and two men get out and speak to the deceased. He saw one of them "the big fellow" put on surgical gloves and search the deceased up and down his body and look in his mouth. The men were dressed in blue suits and blue shirts and appeared to be plain clothes detectives. 5. Landon Halliday was a panel beater working at the business. Sometime after 1.45pm he saw a blue VT Commodore cruise past at slow speed. It looked to him like a detective's car as it was lowered with an FE2 suspension and had a standard rim painted silver called the "Chaser rim". He saw two men talking to the deceased and another man was nearby. The vehicle's engine was running. Everyone was talking calmly. The men were dressed well in business suits. Mr Halliday believed they were police officers. He saw them put handcuffs on the deceased. 6. Detective Sergeant Glenn Williams was a crime scene examiner attached to the Taree Crime Scene Section in 2001. On 27 November 2001, he and other police, with the assistance of SES volunteers, conducted a search of the Hastings River near Wauchope. The Hastings River at Wauchope is under tidal influence for 32 kilometres from the entrance at Port Macquarie to a point about 8 kilometres north of Wauchope. During the search, six bags containing body parts of Terry Falconer were located on the banks of the river. Bags 1, 2, 4, 5 and 6 were blue industrial style plastic bags gathered tight and bound with grey/silver duct tape and cut off above the tape. Each was bound with chicken wire, which encased a round river stone between the bag and the chicken wire. Bag 3 did not have grey/silver duct tape sealing it but there was a yellow plastic pull-cord sealing the bag. 7. On 17 June 2008 Witness C attended the Maroubra Police Station and provided certain information in relation to Witness E. As a result, Detectives Browne and Inspector Jubelin and Superintendent McIlwain met with Witness C on 11 July 2008. From 15 September 2008 over a couple of weeks, they obtained a statement from him. Witness C 1. Except as otherwise indicated, the following evidence was given by Witness C. He was employed at the Bourbon & Beefsteak Bar in Kings Cross as Security Manager in 1997 when he met Witness E who was doing security work on the door. They became good friends. Witness C had met Anthony Perish, whom he knew as "Steve", in about 1996 and also knew Andrew Perish. Witness C stopped working at the Bourbon & Beefsteak Bar in 1999. 2. In the late 1990s Witness C and Witness E became business partners in a security firm. The firm held licences to possess firearms. Witness E purchased four or five Glock semi-automatic pistols. Witness C was aware that Witness E had an interest in firearms. The security firm also purchased two Holden standard factory Equipe Commodores in Bermuda Blue, with alloy wheels in late 1999-2000. In about 2002 the partnership was dissolved and the Glocks were sold. 3. Sometime in 2001 Witness E and Witness H came to where Witness C was working, for a few drinks. While they were there, Witness E asked Witness C if he had heard about "the bloke being abducted from the panel beater's shop by police". Witness C said that he had. Witness E said "That was Witness H, Bottin and me that did it". Witness E went on to say that Witness H was wearing the police uniform and he was making fun of him because the uniform did not fit properly. Witness E said it would be funny if a witness took down the numberplates as he and Bottin stole the plates from a police car and put them back on after the job. 4. Witness E went on to say "We went into the panel beater's shop and told them we were cops. We showed them a badge. We grabbed Falconer and put him into the car. There was a struggle in the back seat. I hit him too hard and he died. I really fucked up. I was only supposed to take him to somebody else to be tortured. I fucked up". Witness C was in shock because he had been unaware that Falconer was dead. Witness H and Witness E had been drinking but they were not drunk. They were enjoying themselves, laughing and having a good time. Witness C formed the impression that when they saw that he was shocked, the conversation ended and they left him. 5. A few days later, Witness E brought up the subject again. He said that he had abducted the deceased for Steve because Steve believed that the deceased and another man called Stott had murdered his grandparents. He told Witness C that "a crazy woman out Leppington way who caged up a girl and had been locked up for it" was Stott's mother. He said that he was concerned at the time that he was going to be in trouble with Steve because the deceased had died before he got to Steve but "Steve said that it didn't matter, that's how he would have ended up anyway". 6. Witness C learned through the media that the deceased's remains were located in the Hastings River by fishermen. Subsequently Witness E came to his house and Witness C asked him whether he had seen the article in the newspaper about the body parts turning up in the river to which Witness E said "Yes, Steve asked me if I'd ever chopped up a body before". Witness E then told him he was going to Queensland to do some work for Steve. 7. After Witness E returned from Queensland he arrived at Witness C's home. He told Witness C that he had changed the interior of his car to leather. He opened the door and showed Witness C, who asked him why he had done it. Witness E said "It just had to be done". 8. After he returned from Queensland at the end of 2001 or early 2002 Witness E invited Witness C out to dinner. When Witness C arrived at the restaurant, he saw that Steve was present. They had a meal together and Steve said something about body parts. Steve and Witness E were talking about themselves and Witness E said to Steve "You couldn't even get rid of the body parts" in a way that seemed like he was making fun of Steve. 9. Witness C said that he ceased seeing Witness E at the end of 2007. He said that Witness E was very proud of his military training and skills. Everything Witness E told him about himself emphasised that he was mentally and physically well trained and tough. Witness E was "a very intelligent man". Witness E told him that he could do anything that a qualified locksmith could do and seemed proficient with locks. 10. Witness C denied that around 1999-2000 he borrowed $100,000 from Anthony Perish. He denied that he had a meeting with Anthony Perish at Danny's restaurant at Bondi and asked him to lend him money for the security business. He denied he ever gave Witness E $30,000 from money that he had borrowed. 11. Witness C first met Witness H when he worked at the Bourbon and Beefsteak Bar. He later hired Witness H to work for him when he was running the security business. Witness C did not know Witness H particularly well. Before telling him about his involvement in the abduction of the deceased, Witness H had never told him about "illegal things". On the occasion that Witness E and Witness H told him about their involvement with the deceased, they were not remorseful or regretful. Witness B 1. On 31 October 2006 police served Witness B with a summons to appear before the NSW Crime Commission inquiry into the murder of the deceased for a hearing on 2 November 2007. On 19 November 2007 Detective Browne served Witness B with a further summons to attend the NSW Crime Commission on 21 November 2007. 2. After Witness B appeared at the inquiry, he was at a meeting with Anthony and Andrew Perish, their brother Matthew and their mother (Thea), sitting at a table. Except as otherwise indicated, Witness B gave the following evidence. Anthony Perish said to Andrew Perish, "This cunt's been talking". As he said this Anthony Perish tapped the side of his nose a couple of times. Anthony and Andrew Perish then went to the other side of the room and spoke amongst themselves. After returning to the table Anthony said to Witness B, "And you don't know anything about those police uniforms". 3. After his divorce from Colleen Perish in 2000, Witness B was not invited to any family gathering where Colleen might be invited. He continued to see Anthony and to a lesser extent, Andrew. At the time of the discussion referred to in the previous paragraph, Daniel Perish, a solicitor named Monika and Albert Perish (the father of Anthony, Andrew and Daniel) were also present. In his statement Witness B said: "Anthony said to Andrew, 'Come here' and as he did this Anthony stood up and started walking away from the table. Andrew got up to follow him and as they were walking away from the table I heard Anthony say, 'This cunt's been talking'." 1. At the time he did not know Witness A and did not know that his nickname was Nosey until he was told by police. Until then he had not appreciated the significance of Anthony Perish having tapped the side of his nose twice with his index finger. In cross-examination, Witness B agreed that he had given different accounts of who was present when this was said. This was because it was not important to him who was actually present at the time. 2. In the middle of 2006, Witness B, Anthony Perish and Witness E met at a restaurant at McMahons Point which was "the restaurant where Anthony was arrested". During the meeting, Anthony Perish said to Witness E, "Should we tell him?" Witness E said "Yes." Anthony Perish said to Witness B "We did it". Witness B said "Did what?" Anthony Perish said "Killed Falconer." Witness B asked "Who killed Terry Falconer?" and Anthony Perish said, "Me and Undies and Redman was one of the kidnappers" (Redman was a nickname of Witness E and Undies was a nickname of Andrew Perish). 3. Anthony Perish then said to Witness B "What, did you do it? ... Did you kill Falconer?" and Witness B said sarcastically, "Oh yeah, I killed Falconer". At this point Witness E leaned over with a dictaphone and tried to tape the words "I killed Terry Falconer". Witness B described the dictaphone as about five inches long and two inches wide, with a strap. He did not know if what they were saying was true or not; they were laughing. Anthony Perish said, "We killed him at Redman's mother's property up the coast". Witness B was in shock. He went out to have a cigarette because he was "freaking out". 4. There was no issue that Anthony Perish and Witness E were arrested on 19 January 2009 at the Lavender Blue Café in McMahon's Point. Witness E's motor vehicle was searched and police located a loaded handgun, a Sony hand held dictaphone and a Forest brand hand-held dictaphone. There were three mini or micro cassette tapes found in the car. Police listened to all of the tapes which contained general conversation that had been recorded between Witness E and other people. 5. When Witness B got back from having his cigarette, Witness E asked him if he wanted to commit suicide after his divorce from Colleen and he said "Yes, it had gone through [his] mind". Witness E then tried to get him to say into the dictaphone that he wanted to kill himself. Anthony Perish was present at the time. In cross-examination Witness B agreed that in his statement he had said that he had repeated "I killed Terry Falconer" whereas in his evidence, he said that Witness E tried to make him repeat it but he did not do so. Witness B explained this discrepancy by saying he was so traumatised by what had happened that he tried to put it at the back of his mind and that is why it was not included in his statement of 27 November 2007 but was contained in his statement of March 2008. Witness B said that he had said the words "I killed Terry Falconer" because they were intimidating him. 6. Witness B denied that he had lied to the Crime Commission on 2 November 2007 when he said that he knew nothing about the murder of the deceased. He agreed that when questioned by the Crime Commission he had said nothing about the conversation with Anthony Perish about getting access to police uniforms. He denied that this was because the conversation had not occurred. He had put that matter to the back of his mind and did not want to remember it. That is why he said nothing about it until his statement to the police on 27 November 2007. He had remembered it because Anthony Perish had stalked him at the St George Rowing Club and made threatening phone calls to him, forcing him into this position. 7. Witness B said that he had met Witness E ten or fifteen times and knew him quite well and that they got along quite well. He did not know the deceased. When he first said "I killed Terry Falconer", he did so in a sarcastic tone of voice not by way of admission. This was not in his first statement to police because his post-traumatic stress disorder allowed him to remember only bits and pieces. 8. On 18 November 2007 Witness B was at the St George Rowing Club with his mother and girlfriend. Witness E rang him and told him that they would be there in one minute. Anthony Perish and Witness E arrived about a minute later. Anthony Perish asked him "Who do they reckon it is?" and Witness B said "You and Undies". Anthony Perish said "Oh, good". He then said "Get in the car. Tell your dad we've got to go for a road trip and we'll be back in a week". Witness B did not agree to this. He felt intimidated. (Exhibit H comprised five colour photographs of Anthony Perish and Witness E outside the St George Rowing Club taken from CCTV footage dated 18 November 2007. Witness B had not spoken to police before 18 November 2007 in relation to the killing of the deceased. The photographs were first shown to him by police on 13 March 2008). 9. In his statement to police on 29 November 2007, Witness B had made no mention of having been followed to the St George Rowing Club by Anthony Perish and Witness E, or that he felt intimidated by their presence. He maintained that Anthony Perish and Witness E had followed him to the Club and did not accept that they were there because they wanted to meet him there. (Exhibit J was the intercepted phone call of 18 November 2007 in which Witness E contacted Witness B and said that they would see him at the Rowing Club). Witness E 1. On Monday 19 January 2009 Witness E and Anthony Perish were arrested in Blues Point Road, McMahons Point. Witness E was taken to Chatswood Police Station and declined to be interviewed. 2. On 22 January 2009, Witness E participated in an electronically recorded interview at the Parramatta Police Station regarding the murder of the deceased. Detective Browne was not aware of any deals discussed, negotiations conducted or contact had with the Director of Public Prosecutions or police as between those authorities and Witness E in respect of any promise or inducement or anything of that kind. 3. Before the interview with Witness E, police were not aware of the property at Girvan. Witness E told them about the property, gave them directions and ultimately took them there. As a result of this information, police attended the property and executed a search warrant. 4. On 22 January 2009 Matthew Lawton was arrested and charged. Andrew Perish was arrested on 5 February 2009. 5. Witness E pleaded guilty in the District Court to the following offences: 1. Maliciously shooting Garry Mack with intent to do grievous bodily harm on 14 October 2001; 2. Kidnapping Terrence Falconer for advantage during which detaining Mr Falconer died on about 16 November 2001. 3. Being an accessory after the fact to the murder of Terrence Falconer by Anthony Perish and Matthew Lawton by assisting them on or about 16 November 2001. 4. Conspiring to murder Felix Lyle or Dallas Fitzgerald between 12 July and 9 October 2002. 5. Shooting a pistol at Raniera Puketapa with intent to murder him on 8 October 2002. 6. Possessing an unregistered firearm, a .45 Norinco pistol on 19 January 2009. 7. Possessing seven unregistered firearms, including one prohibited firearm and four pistols, they being circumstances of aggravation, when he was not authorised to do so, on 19 January 2009. 8. Possessing a prohibited weapon, a pistol silencer, without being authorised to do so by permit on 19 January 2009. 1. When Witness E was sentenced by Judge Sweeney in the District Court on 28 May 2010, her Honour took into account a further 14 offences on a Form 1 when sentencing for the third count (the accessory charge). Those offences were seven aggravated armed robberies, firing a firearm in a public place, a specially aggravated break, enter and steal, manufacturing a prohibited drug, supplying a prohibited drug, possession of a tablet press, damaging property by fire, and taking and driving a motorcycle without the owner's consent. Those offences occurred between 2000 and 2008. 2. Her Honour also took into account when sentencing him for the seventh count, a further three offences on a second Form 1, being two offences of possessing a prohibited weapon, and one of possessing items of police uniform, all relating to items found at his home on 19 January 2009. 3. Witness E was sentenced to a term of imprisonment of 20 years with a non-parole period of 15 years. He received a 50 per cent discount for his pleas of guilty, and for his past and future assistance to police. Her Honour quantified 15 per cent of that discount for future assistance, which included Witness E undertaking to give evidence in the trial. Witness E's ERISP 1. After his arrest on 19 January 2009, Witness E participated in an ERISP on 22 January 2009 with Detectives Browne and Edwards. Except as otherwise indicated, the following sets out the effect of what Witness E said in his ERISP. His description of how he met Witness C accords with the evidence of Witness C on that subject. When he first met Anthony Perish, he did not know much about him but on one occasion, Anthony Perish had given him $2,000 sponsorship money for motorcycle racing. On an occasion when he and Witness C had lunch with Anthony Perish at Danny's restaurant at Bondi Beach, Witness C had formally asked him for a $100,000 loan. Sometime after that Anthony Perish gave Witness C $100,000 cash and Witness C gave $30,000 of it to Witness E. 2. Anthony Perish approached Witness E, through Witness C, and asked him to look into some information which he had, before the coronial inquest into the death of his grandparents. Anthony Perish said that he wanted to bring the guilty people to justice and that Witness E should start investigating it. Witness E identified a number of people who might have been involved, including Justin Birk Hill, a solicitor from South Australia, a woman known as "Mad Wendy" [Stott] and the deceased. Anthony Perish said they needed to get a hold of the deceased and get him to give up who did it. Witness E said, "From my understanding at that stage he didn't think that Falconer was directly involved in the doing of it, but knew information about it." Anthony Perish told Witness E that the deceased was on day release, working at a smash repairer's at Ingleburn. 3. Anthony Perish had arranged for a person whose nickname was Snowy, to observe the deceased and call in when he was at the smash repair shop. The plan was for Witness E and others to pose as police, cut the tracking device off, take the deceased to be questioned by Anthony Perish and then drop him back. "Witness C and I decided" to get Craig Bottin and Witness H to help. Anthony Perish said he would pay $15,000 and take some more money off the amount owing on the loan. Witness E and Witness C did not think at any stage that the deceased was going to be killed. Anthony Perish advised Witness E to get a van, a box and a police badge. Witness E rented a badge for $200 and Anthony Perish provided a general duties police shirt. Witness E used his personal car and Matthew Lawton sourced wheels that looked like detectives' wheels and painted them at the Turramurra house. Witness E did not know the address at Turramurra, but told police that he could point it out. 4. Anthony Perish instructed Witness E: "He'll put up a fight, so make sure you handcuff him and put this anaesthetic over his mouth". He told Witness E it was "kind of like a chloroform" and would help him sleep until he got to Turramurra. Witness E drove the van to an area not far from the smash repairer's. He could not recall if Anthony Perish had provided the lock box and pad bolts but thought that he had, because he [Witness E] did not have the keys. "Bodgie number plates" and the wheels Matthew Lawton had painted silver were placed on Witness E's car. Witness E put a magnetic two-way radio aerial on one side to make it look more like a vehicle that was used by detectives. 5. Witness E, Bottin and Witness H drove to the smash repair premises where they posed as police officers. He and Bottin wore suits like detectives and Witness H wore a police shirt and dark blue pants. Witness E told the deceased that they needed to take him in for questioning and the deceased said "Oh, not again". He appeared to accept they were police. Witness E put on latex gloves and searched him, handcuffed him at the front and took him to the vehicle. Witness E sat on his left and Bottin was on his right. The deceased said "I hope it's not about those silly murders". Witness E pretended they had to "suss out" the van and when they drove near it Witness E put some of the chemical on a handkerchief and put it over the deceased's face. The deceased struggled for about thirty seconds so that Bottin had to help to subdue him. 6. Either Bottin or Witness H helped Witness E carry the deceased into the van and put him into the lock box. Witness E did not know where the ankle bracelet was discarded because Bottin took care of that. Witness E did not recall what kind of firearm he was carrying; it was in a holster on his hip, as was Bottin's. He did not think that Witness H was carrying a firearm. (The ankle bracelet was not found until 22 April 2002 when a Corrective Services Officer picked up the signal by chance.) 7. The deceased was "really really dopey". Witness H had already opened the side of the van and opened the lock box. They put him in the box and Witness E tossed the handkerchief in with him. He secured the box and put the pad bolts on it. He and the other two then changed their clothes, hubcaps were put over the wheel rims and the licence plate was changed. Bottin and Witness H then left that location in Witness E's car. 8. Witness E drove the van to Anthony Perish's house at Turramurra. The deceased was coughing in the back and banging on the sides of the box. On arrival Anthony Perish and Matthew Lawton were there. One of them directed Witness E to drive the van into the garage. Anthony Perish said "Well?" and Witness E gave him the thumbs up. They took the box out and someone opened it with the keys. As soon as it opened, the deceased started to get up and Witness E put his foot on his torso. Anthony Perish grabbed his head and slammed it down, saying "Yep". Anthony Perish pulled up the deceased's shirt and Witness E saw that he had a Gypsy Joker tattoo. Anthony Perish shut the lid and Witness E said "Man, don't you think we should get him out? He's pretty hot in there". Anthony Perish put his hand on a silver five-shot revolver and said "Are you fuckin' with us or what?". Witness E said "Man, I think he needs to get up" because the deceased looked "fucked" and "struggling". Anthony Perish became irate at being questioned. 9. Anthony Perish said "you and Muzz [Matthew Lawton] … take it up to this place, we can get rid of it". Anthony Perish had his hand on his gun the whole time. He said that he would get rid of the van. They put the box in the back of an XD ute with NSW registration plates beginning VDE and ending in a 2. Witness E saw that Muzz now had a gun. Witness E was unarmed. He felt under threat and thought if he bailed out his family would be under threat. He believed that he had to play along. He got into the ute and they drove the back way to the property at Girvan, which "took ages". Witness E thought that if the deceased "spent another hour in that box he would, he was going to be dead for sure". When the box was put back into the ute the tarp was put over the box. 10. Witness E did not know how long it took to get to Girvan but thought "this guy's not going to survive that trip, he was already hot back at Turramurra". When they arrived at Girvan, Matthew Lawton said "Let's go inside" and Witness E asked "Aren't we going to get him out?" Matthew Lawton said "No, we'll wait for mate", referring to Anthony Perish. Witness E had heard noises from the back of the ute "initially, but not for long". 11. Anthony Perish arrived "hours later". They took the box into the shed and someone cut the padlock bolts off because the keys had been left behind. When they opened the box the deceased was dead. They put on suits and gloves and Witness E helped roll out heavy plastic sheeting. Anthony Perish threw a suit to Witness E and told him to put it on. He said "Just remember everyone last saw you with the body, they're gonna think you're the killer, even your own mates. You're the one that's been seen, your car, but I'll help ya, I'll help ya get rid of it." 12. Anthony Perish and Matthew Lawton then suspended the deceased's body using a block and tackle and started cutting him up. Anthony Perish threw a leg to Witness E and said "Here get into it" and passed him an implement. After the deceased's body was cut up they packaged him in plastic bags, took up the plastic sheeting and placed it in a bag and poured hydrochloric acid on the floor. Anthony Perish extracted the deceased's teeth before he was suspended on the block and tackle. The deceased was suspended by the handcuffs. Witness E could not remember if his clothes were cut off before or after he was suspended. The bags in which the body parts were contained, were secured with electrical tape. 13. Witness E described the suits as like a "white-ish fibreglassing suit", "a plastic-y material", "like a spray painter's one". He thought "it contained feet in it". Witness E, Anthony Perish and Matthew Lawton cut up the body. Witness E said "I never intended for that guy to die. He didn't even ask him one fucken question". The next day the bags were loaded into the ute and Witness E rode with Lawton to an off-ramp near the Pacific Highway where they waited for Anthony Perish. He arrived in his four-wheel drive, they swapped cars and Witness E and Matthew Lawton drove the four-wheel drive back to Turramurra while Anthony Perish drove off in the ute. 14. The metal box, the handcuffs, padlocks and anything else used at the property were burned at the front of the property to the left-hand side. 15. Witness H, Bottin, Witness C and Witness E were each paid $5000 to "just take a guy to be questioned about their grandparents' murder". The deceased "was alive when he got to Turramurra, he was still active, he was coughing, he was breathing. He was very hot, very red in the face but he was alive, he still had strength". 16. When the body parts were found and identified as the deceased's, Witness E told Witness H and Bottin different versions of the story. He recalled telling both of them that "the guy had to die because he was going to rat on us". He remembered being instructed by Anthony Perish "to tell [Witness C] that he died because of a broken neck and it was all an accident". Witness E identified a photograph of Matthew Lawton and wrote Lawton's name and nicknames (Muzz and Bristle Hound) on the photograph. 17. Witness E could not recall how long before the kidnapping he was first approached by Anthony Perish. He thought it was not as long as a year before, but he was given the documentation more than three months before. Anthony Perish told him "the best way to get answers about who murdered his grandparents was to take this guy that was on day release … the only way to do that in a way which won't arouse suspicion so you can get away is to do it by dressing up as cops, bring him back to me and we can question him and he'll tell us the answers". That conversation occurred at least three months prior to the abduction. Witness E was following Anthony Perish's directions in relation to what to do and how to do it. Witness E recruited Bottin and Witness H to "take him [Falconer] in for some questioning, rough him up and then drop him off later". Anthony Perish decided it should take place at the smash repair business. 18. Anthony Perish was organising Matthew Lawton to prepare the wheels. Witness E was to get the police badge and get the uniform from Anthony Perish. Anthony Perish was to provide the anaesthetic. The silver wheels were provided a day or two before the abduction. 19. The box was galvanised tin and big enough "to fit a grown man in so he didn't have to be crunched up". It was close to six feet long, maybe five and a half feet long. Bottin got the "bodgie plates" from another Commodore. 20. Witness E was asked if, to his knowledge, Andrew Perish was involved in the kidnapping or murder of the deceased and answered "I can't say that he was at all. I did not see him or hear from him or know that he had any part". 21. Witness H and Bottin "never went to Turramurra … everyone was always at arm's length". 22. Witness E had the upholstery, carpet and seatbelts in his car changed because "I'd used my personal car and there could be his DNA on my personal car". Evidence of Witness E at trial 1. Witness E gave evidence at trial. Except as otherwise indicated, the following is the effect of the evidence of Witness E at trial. He understood that if he did not adhere to his promise to give evidence at the trial, he could be re-sentenced in relation to the eight offences with which he had been charged. 2. Witness C was his boss at the Bourbon and Beefsteak Bar when he started working there as a security guard in the mid-1990s. He met Anthony Perish, whom he knew as Steve Perish, when he used to come to the bar. Later Witness E and Witness C became business partners in a security firm, which subsequently had some financial difficulties. Witness C received a $100,000 loan from Anthony Perish. 3. Anthony Perish spoke to Witness E about his grandparents having been murdered and that the police had "botched up the investigation" and that he wanted to find out who was responsible and whether or not there had been a cover up. Sometime later, at Turramurra, Anthony Perish provided Witness E with a folder of documents. Before reading the documents Witness E had never heard of the deceased. He could not recall when it was that the plan to abduct the deceased first arose. He did not recall whose idea it was to carry out the abduction or the conversation in relation to the idea of the abduction. 4. He recalled that someone put "dodgy plates" on his company car and that he put an antenna on it so it resembled a detective's car. He knew the wheels had been changed but did not remember them being changed or any conversation about the wheels being changed. 5. Witness E referred to Anthony Perish as "the client" and said that he requested that certain questions be asked of the deceased. Witness E abducted the deceased and took him to a grassy area where there was a van. He could not remember who put the deceased in the galvanised box, but remembered that he took the deceased's feet to carry him. He did not remember locking the box. He thought that the deceased "would have been conscious". He remembered that he handcuffed the deceased but could not remember if he took off the handcuffs. He drove to the house at Turramurra. The other two did not come with him. Either Anthony Perish or Matthew Lawton was at the house, or it could have been Roy [there was no evidence as to who Roy was] instead of Matthew Lawton. When specifically asked if Matthew Lawton had assisted in any way in the preparation of the abduction Witness E answered "Not to my knowledge". Witness E did not think that he had spoken to Matthew Lawton in the days or weeks leading up to the abduction. After he drove the van into the garage he and one other person took the galvanized box out. He remembered observing that "the guy looked pretty crook"; "I think he was alive". He recalled the deceased "in the back coughing". 6. Witness E recalled driving north with either Matthew Lawton or Roy. He remembered being on a property but did not know what area it was in. He remembered sleeping the night there. Either Matthew Lawton or Roy was also there. 7. He remembered an occasion when he had something to eat with Anthony Perish and Witness B and agreed that he possessed a hand held tape recorder in order to record conversations. He denied having that device with him at the meal with Anthony Perish and Witness B and did not recall taping what Witness B said. He identified himself and Anthony Perish in a photograph outside the St Georges Rowing Club (Exhibit H). When he was played Exhibit J (the call between himself and Witness B) he believed that Anthony Perish spoke with Witness B but he did not know what they spoke about because he went to the toilet or for a drink. 8. At trial the ERISP of Witness E of 22 January 2009 (Exhibit AA) was played to the jury and Witness E was cross-examined on it by the Crown pursuant to s 38 of the Evidence Act 1995 (NSW). The effect of that evidence was as follows. 9. Witness E did not remember an occasion when he, Anthony Perish and Witness B were in a café at McMahon's Point and the topic of the deceased arose. He did not remember giving evidence at committal proceedings on 16 June 2010. He was read evidence in which he said "I recall Anthony was having a conversation with [Witness B] and did make reference to the Falconer abduction. I don't remember the exact content of what was said. I really didn't want to get involved in that conversation". Witness E did not recall giving that answer and did not recall the abduction of the deceased having been discussed. 10. When it was put to him that what he told the police about Anthony Perish's role in recruiting him for the abduction was the truth, Witness E said "I can't say that. What I can remember is that Anthony said that the guy needed to be asked some questions". 11. It was put to him that in the execution of the abduction plan, Matthew Lawton changed the appearance of the rims of his car. Witness E said "I don't remember the execution of the plan". He did not recall the manner in which Mr Falconer's body was dismembered. He could not recall having the interview with police. He could not recall certain aspects of the crime. 12. Witness E had been in solitary confinement for a long time. In cross-examination by the defence, he agreed this could be a factor that affected his ability to recall things. He had recently had some major surgery and had been ill, which was another factor. He did not recall giving evidence in the committal proceedings in which he said that he did not recall if Matthew Lawton was present during the planning and discussions between himself and Anthony Perish. He did not recall Matthew Lawton being involved in the planning, however he could not remember the planning. 13. He did not recall what he told Witness H or Bottin about the deceased when they were planning the abduction. He did not recall purchasing the lock box but said "I am pretty sure I would have". He did not recall a decision being made to place the deceased in the lock box. 14. He agreed he had a background as an investigator and in martial arts, had military and security training in relation to firearms, had a couple of Glock pistols and had been a Commando for four and a half years and was proud of this. 15. He could not recall having a conversation with Anthony Perish during which a decision was made to kidnap the deceased and ask him some questions. He was not able to recall evidence which he gave at the committal proceedings concerning a discussion between himself and Anthony Perish on the day of the abduction in which Anthony Perish had told him that the job was to go ahead. 16. He did not recall obtaining the chloroform-like substance or the handcuffs. He did not recall having to punch the deceased to subdue him and did not recall seeing Bottin punch the deceased to the right side of his face near his right eye and temple area. He did not remember if he hit the deceased. He thought his hands were holding the deceased's head and that he was blocking himself from the deceased's strikes. The deceased became progressively limp and gradually stopped struggling and became very drowsy. He did not recall if the deceased was on his back or on his side, but he was definitely not on his face. The deceased was not coherent. The cloth Witness E threw into the box had a "methy" smell. 17. Witness E did not recall if he checked to see whether there was sufficient air getting into the box, but thought he would have checked that there were gaps between the lid. He accepted that there was a risk in using a chemical he did not know. He did not stop during the journey to Turramurra. He did not recall telling Witness C that he had killed the deceased. He said that "if the intent was something to cause his life to end, I would definitely have not used my car". 18. Witness E denied that when he left Turramurra he knew that the deceased was dead. He did not recall saying to Matthew Lawton or Anthony Perish "I hit him but I didn't think I hit him that hard". He did not recall telling Witness C that he had hit the deceased too hard and killed him. 19. He did not recall telling Witness H that it was necessary for him to kill the deceased "because he was going to dob on everyone". He did not recall telling Witness H that he chopped off the deceased's head. He agreed that he might have told him a different version of events. He might tell different people "a different version, because then if someone goes bad you can tell who". 20. Witness E denied that when he said in his ERISP that Anthony Perish had told him "We can get rid of it", he had referred to the deceased as "it" because he was already dead when he arrived at Turramurra. 21. After watching his ERISP in court, Witness E said "there are peculiarities with it", including that his solicitor rang and he did not ask to speak to his solicitor. Other peculiarities were that his family was mentioned first and "I seem robotic initially" and "at the end when they go did you make this of your own free will, it's like I didn't, even though I said I did". 22. He agreed that he was leading a double life when he was committing offences and had hidden his criminal lifestyle from his wife. He agreed he had a loaded gun in his car when he was arrested. Searches of his house and his mother's house located firearms, ammunition, wigs, masks, an SAS survival handbook, police shoulder patches, balaclavas and other items. The wigs were for disguise when he or someone working for him did reconnaissance. He also had Improvised Explosive Devices (IEDs) at one of the properties under his control. 23. Witness E denied that in his ERISP he minimised his role in the death of the deceased and had agreed to give evidence against Anthony Perish and Matthew Lawton in order to cut a deal. He agreed that in the five years before his arrest, he had completed a university course, had a fulltime job and was doing consultancy work but had also stolen a motorcycle in Balmain and stored it in his mother's garage. In 2008 he used the motorcycle during an armed robbery. He agreed that putting the deceased into a box with little air while he was under the effects of chloroform was a mistake and that he "should have organised holes" but he did not believe it resulted in his death. He denied that his lack of recall and memory was a ploy and playacting. He agreed that he had received $30,000 from Witness C, but did not know where it came from but was told it came from Anthony Perish. He could not remember if his job was to abduct the deceased, take him to Anthony Perish to be questioned and then return him to the gaol. He did not recall having a conversation with Witness C in which he said "I really fucked up there. He was only supposed to be taken to somebody else. I fucked up." He did not recall his ERISP so he could not answer whether he was trying to portray himself as an unwilling participant in what happened at Girvan. 24. Witness E continued to have contact with Anthony Perish after the events of 2001 and had invited him to his wedding in 2008. They were together at a café in McMahon's Point when they were arrested. He could not remember who was at Turramurra when he arrived and what was said. He did not recall Anthony Perish being present when the box was opened at Turramurra. He could not remember Matthew Lawton being at Turramurra. He could not recall any discussion at Girvan about what to do with the deceased's body. Witness E thought that one of the reasons why he had trouble remembering things was because he had been deliberately refused medical care while in prison. 25. When Witness E was asked whether as a joke, he would confess to killing someone he said "I guess you would only joke with people you trust, wouldn't you. If you were going to say something like that". He did not recall being asked to kill the deceased. If he had agreed to "knock" him, he would have just shot him. The fact that he was not wearing a disguise meant that it was "not that sort of job". 26. He did not recall telling Witness H that he had chopped off the deceased's head, nor saying to him "the bloke we picked up is dead, he was going to rat on us and he had to go". Witness E got on very well with Witness H. They trusted each other and they had committed a number of criminal offences together, including armed robberies. He was the person who told Witness H what to do. Witness H 1. Witness H worked as a security guard at the Bourbon and Beefsteak Bar in 1998. He met Witness C and Witness E when doing that work. Witness C was initially in the senior position and subsequently Witness E performed the duties of Operations Manager. Witness H used to socialise with Witness C on a monthly basis and with Witness E every ten days or so, usually at bars around Kings Cross. Except where otherwise indicated, his evidence was as follows. 2. He became very close to Witness E, looked up to him as an older brother figure. When Witness C and Witness E set up their security business, he went to work for them. He was aware that Witness E had been a Special Forces soldier with the Commando Regiment in the Army and had experience with a wide variety of firearms 3. In 2000 he had a falling out with Witness C, but remained friends with Witness E. In 2001 he became aware of Witness E's involvement in criminal activities. In the middle of 2001 he had a meeting with Witness E and Bottin, during which Witness E initially brought up the abduction plan. Witness E said: "There's a job that has come up. There's a guy who he needs to get information, a guy who has done terrible things, he's a scum bag". Witness E needed him and Bottin to help out because "this is a guy who's able to take care of himself physically". Witness E told them the person was on work release from Silverwater Gaol. 4. Within a week there was a second meeting, at which more details of the plan were outlined. Witness E proposed that they dress up as police officers and pretend to arrest the deceased and take him away for questioning. Witness E was to use chloroform to drug the deceased as he thought this was the best way to cause the least harm. It was to be done at the place of his work release. Witness H's role would be that of driver and he would be wearing something that resembled a police uniform. Bottin's role was to assist Witness E in "arresting" the deceased. Witness E did not indicate from where he was going to obtain things that resembled police items, such as uniforms. They were to meet at a rendezvous point where the hub caps were to be taken off the car to make it look like it had police "Chaser" rims, an aerial put on the back window and the licence plates changed. The result was to make it look like an unmarked detective's car. Both he and Bottin were sceptical about joining the enterprise insofar as dressing up as police officers was concerned, but Witness E continued to push them to help him because they were the only two people he could trust to do the job with. 5. On the day of the abduction, Witness H took the car to pick up Bottin and drove to a grassy embankment a short distance from the smash repair business where Witness E was waiting with a white work van with sliding doors. They changed into their uniforms. Bottin took the hubcaps off the Commodore, changed the licence plates and an aerial was put on the back window. Witness H drove to the smash repair business. Once there, Bottin and Witness E went inside and spoke to a younger man and then to the deceased, who was handcuffed and led to the car. Witness H saw the police badge that Witness E produced to the deceased and it appeared genuine. Bottin and Witness E each had Glock pistols with them. Witness H was provided with what looked like a police shirt with police badges on either side and a pair of dark navy blue pants. 6. Witness E placed the deceased in the rear of the car and he and Bottin sat either side of him. As Witness H drove to the grassy embankment, he heard Witness E and the deceased have a brief conversation. He then heard a scuffle in the backseat. He turned around and saw Witness E placing what looked like a rag with the chloroform on it on the deceased's mouth. The deceased was almost unconscious and was "putting up a bit of a struggle". It was only a matter of seconds before the deceased became unconscious in the rear of the vehicle. Witness H did not see anyone strike the deceased physically in any way before or during the process of rendering him unconscious. Witness H did not recall seeing an electronic monitoring ankle bracelet on the deceased. 7. At the grassy embankment, Witness H was told to open the sliding door of the van and open the toolbox. The use of the toolbox came as a surprise to him. Witness H described the box as being like a normal toolbox, "that a tradie would use but there were no tools in it". After he opened the toolbox he saw Witness E and Bottin carry the deceased to the box by his arms and legs. The deceased was placed in the toolbox on his back, wearing his clothes. He was snoring. Witness H expressed concern that he was going to be placed in a box and Witness E said, "Yeah, yeah, don't fucken worry about him. He'll be all right. He'll be dropped off before the day's out". The lid was shut. 8. He and Bottin then changed their clothes. The number plates were replaced, the aerial taken off and the hubcaps put back on. He and Bottin then left Witness E with the deceased in the box in the van. Before they left, Witness E told him to wash the exterior and interior of the car, which he did at a carwash, and to park the car at his [Witness H's] unit where it was not visible from the street in the underground car park. As far as Witness H was aware, no items of clothing were left behind at the grassy embankment. 9. Witness H next saw Witness E a couple of days later when he came to collect his car. He and Witness E went to lunch at a restaurant at Double Bay. Before this meeting, Witness H did not know the deceased's name. At lunch Witness E said, "Look, I don't know if you've heard or read anything, but Falconer had to go. He was going to rat us out." Witness E said words to the effect, "I'm sorry I told you it wasn't meant to happen this way". Witness H was shocked and upset, so Witness E dropped the subject. To smooth things over, Witness E handed him $7,000 in cash. 10. They were at the café for about 45 minutes and then went to have a few drinks and play the pokies. After about an hour and a half, Witness E brought up the topic again and told Witness H that "Falconer was not giving him the answers he wanted, he was being a smart arse. So as an effect of this, he chopped Falconer's head off". They never spoke of the killing of the deceased again. 11. Witness E was happy with his and Bottin's professionalism on the job, but was concerned to ensure that he and Bottin kept their mouths shut. Not long after this, Bottin was arrested on unrelated matters and Witness E and he contributed to Bottin's legal fees. 12. In cross-examination Witness H agreed that when Witness E told him that the deceased "was going to rat on us … he had to go" he was shocked but he "knew he was capable of it". He agreed that when Witness E said, "It was not meant to happen this way. He got a bit lippy and he was mouthing off and being smart, so I went up and chopped his head off" Witness H had not doubted that this had occurred since he knew that Witness E was capable of chopping off someone's head. He interpreted these two statements to mean that Witness E had killed the deceased. He agreed that Witness E had never said to him that someone else had killed the deceased. Witness E had a dominating personality and was very persuasive. 13. As far as he was aware, Witness C did not play any part in the plan. Witness E used to try to plan everything like a military operation. The toolbox into which the deceased was placed, did not have any obvious part where air could get in. There were no air holes drilled in it that he could see. His main concern was that once the lid was closed, the deceased might not be able to breathe and in order to allay his fears, Witness E told him that the deceased was not going to be in the box for long. Witness E never told him that he had died before he was able to be questioned. Post mortem results 1. Professor Timothy Lyons, Chief Forensic Pathologist at the Department of Forensic Medicine at Newcastle gave evidence in relation to the two post-mortem examinations conducted by Dr Kevin Lee, who was no longer with the Department. The first autopsy was conducted on 28 November 2001. The remains that were presented were in six plastic bags. After each bag was opened and the contents observed and recorded, Dr Lee reconstructed the body with the remains. He noted that the remains were found to be almost complete, however the internal organs were missing as was the anterior abdominal wall. 2. Dr Lee listed four signs of recent injury, being: 1. An ill-defined area of bruising extending from the lateral right cheek passing the outer aspect of the eye to involve the right lateral forehead and extending into the hair line. (Bruising occurs when someone is alive and does not occur if the person is dead.) This bruising was due to blunt force trauma injury. It could have been the result of a blow with a fist or a boot. It was the sort of injury that could occur if that part of the body were knocked against a hard surface. 2. A transverse laceration approximately 3.9 centimetre long, situated just under the central part of the point of the chin without evidence of surrounding bruising. 3. An ill-defined area of apparent light bruising situated over the right middle side of the jaw. 4. An ill-defined area of skin damage resembling superficial burning was present in the right armpit, extending over an area approximately 12 centimetres in diameter. It was Dr Lee's view that the lesions he was seeing were blisters. The blisters took the form of a series of closely spaced rounded blisters. The blisters resembled superficial burning of the skin. There was no singeing of the axillary hair, and the border between it and the normal undamaged skin was clearly defined. Dr Lee did not state an opinion as to how such burns might have been caused. 1. There were numerous post-mortem injuries due to the way in which the body had been dissected. There was an area of light bruising over the inner aspect of the left wrist and a small area of bruising on the radial aspect of the right wrist. Dr Lee's pathological findings were: 1. The body was dismembered. 2. There were multiple penetrating and incised wounds 3. Evisceration. 1. A second autopsy was conducted on 18 September 2002 at Newcastle after the discovery of the seventh bag. The contents of that bag were the missing internal organs, his lungs, his bowel and his lower jaw which was the mandible that was noted as missing during the first autopsy. Also located in the bag was a series of ribs and rib cartilages. 2. The skin that was missing from the remains in the first six bags was also located in the seventh bag. By using tattoos, Dr Lee was able to match the remains from the seventh bag with the remains of the other six. On the skin that covers the lower chest and abdomen, was a part completed tattoo of a skull wearing a jester's cap with skulls as bells. This was recognised as the insignia of the Gypsy Jokers Motorcycle Club which was more established in South Australia than New South Wales. 3. The cause of death was unable to be determined. If someone is in a box where there is no clear ventilation, that person might find themselves in a situation of lack of oxygen. If a person were unconscious and was lying on their back they would have an unprotected airway. Normally an unconscious person is placed in the coma position on their side to keep the airways open. Over time while lying on one's back, the body would consume oxygen and produce carbon dioxide. Carbon dioxide levels could then rise to a level that would adversely affect the brain and the heart to the point that the person stopped breathing. It was possible that someone in a very restricted area who was snoring, on his back and was subjected to some form of anaesthesia could die within two hours. Phone records 1. The Crown led expert evidence concerning the phone records. Because of the lapse of time between when events occurred and when police sought to examine the phone records, many of the records had disappeared because telecoms at the time only kept records for limited periods. 2. There were records of calls made from a Vodafone number used by Andrew Perish from 1 September 2001 to 16 September 2002. Reverse call charge records were not available for that phone. 3. There were two mobile phone numbers associated with Witness A. "Mobile 1" was used by Witness A but was registered in the name of Tracey Hill. Reference has already been made to calls from that phone to Andrew Perish. After 9 October 2001 there were no calls from Mobile 1 to Andrew Perish. "Mobile 2" was also associated with Witness A. It was registered in the name of Paul Jeffreys. Records were available for that phone for the period 1 October 2001 to 17 November 2001. Reference has already been made to calls from that phone. Witness A also used the "McDowell phone". It was activated on 29 October 2001 and last used on 26 November 2001. Exhibit HH was the summary of calls between the various phones that showed contact between Witness A and Andrew Perish by calls and texts and phone contact between Witness A and Marine Scene. That summary and the records did not contain all the usage of the identified telephone numbers. 4. After the McDowell phone was activated on 29 October 2001, Andrew Perish did not initiate contact to Mobile 1 or Mobile 2 until 14 November 2001. The McDowell phone was not used between 12 November and 20 November 2001. Mobile 1 did not make any outgoing calls after Friday 9 November 2001. Mobile 2 made no outgoing calls from 12 November until the end of the available records which was 18 November 2001. All incoming calls were diverted. 5. On 14 November 2001 the Andrew Perish phone called Mobile 2 three times. No return call was made from any of the Witness A phones. On Thursday, 15 November 2001 there were two calls from the Andrew Perish phone to Mobile 2. There was no return call made from any of the Witness A phones. From Friday 16 November 2001 until the end of the records on 29 August 2002, there were no calls from the Andrew Perish phone to Mobile 1 or Mobile 2. The search of the Girvan property and related evidence 1. On Thursday 19 March 2009, a crime scene warrant was executed at the property at 158 Brooks Road, Girvan. Photographs were taken. In the walkaround, Witness E indicated to police a beam within the main shed from which the deceased had been hung. When tested, the beam easily took the weight of a policeman weighing 85 kilograms, which was more than the deceased had weighed at the time of his death. 2. As part of the forensic examinations, a number of fingerprints were discovered within buildings on the property. Anthony Perish's fingerprints were identified on a can of air freshener in the toilet in the house and on a bottle of pasta sauce in a kitchen cupboard. Matthew Lawton's fingerprint was identified on a jar of coffee in the kitchen of the house. It was not possible to estimate when the fingerprints were deposited on the items. 3. On 16 April 2009, an additional crime scene warrant was executed at that property. An area was excavated where there had been a fire which was then backfilled. During the examination, a number of items were located including the remains of a large metal tool box, a padlock, three saw blades, a ball hammer head, plastic sheeting and portions of plastic garbage bags similar to the bags in which the deceased's remains were located. One of the items collected was a section of blue plastic with a yellow pull cord which was consistent in appearance with the bags in which the deceased's remains were located in the Hastings River. 4. Items retrieved from the burned out area included the remains of a hammer, burnt pieces of a meat tenderising mallet, a hacksaw blade, an electric saw blade, a broken hacksaw blade, chicken wire, a partially burnt thick black plastic like a drop sheet, part of a blue plastic garbage bag with a yellow cord attached and silver coloured duct tape. The dimensions of the box were estimated at 500mm wide, 500mm high and in excess of 1760mm long. The evidence and cases for the defence Case for Anthony Perish 1. Anthony Perish pleaded guilty to manslaughter on the basis that he was part of a joint criminal enterprise to abduct the deceased. It was his case that when Witness E arrived at North Turramurra and the box was opened, the deceased was already dead. Through his counsel he sought to show that he had loaned money to Witness A to repair his boat as a friendly gesture and had not engaged him to assist in the disposal of the deceased's body. 2. Through his counsel he admitted that from December 2000 through to August 2002 he did reside at North Turramurra and that between 1999 and 2009 he had access to and stayed at the property at 158 Brooks Road, Girvan. He accepted that on 16 November 2001 the body of the deceased was dismembered at that property at Girvan. 3. He had one conviction for offensive language in 1990. He did not give evidence or call any witnesses. Case for Matthew Lawton 1. Matthew Lawton did not give evidence or call witnesses. 2. It was his case that he was Anthony Perish's driver and did not hear any conversations between Witness A and Anthony Perish. He was not at the Turramurra property when Witness E arrived in the white van. When he arrived at Turramurra the deceased was already dead. Case for Andrew Perish 1. Andrew Perish did not give evidence. He sought to show through cross-examination of Witness A and Witness B particularly, that he had no knowledge of, or involvement in, the conspiracy to murder the deceased. He called two of his brothers to give evidence to rebut the evidence of Witness B and Witness A. 2. Matthew Perish, the brother of Anthony and Andrew Perish, gave evidence that he did not recall ever attending a meeting in about October 2006 involving his parents, his brothers Anthony, Andrew and Daniel, Witness B and a solicitor named Monika Mellar. He had not attended a meeting involving those persons where Anthony Perish or any of his brothers had touched their nose and said words like, "This cunt has been talking". 3. In cross-examination by the Crown he said he had heard of a person called Nosey. Other than over the last couple of days, he had not heard his name for about twenty years. The last time he saw Witness B in the company of his parents and brothers was about twenty years before and the last time he saw Witness B was about ten years before. When asked if he recalled a meeting in October 2006 with some, but not all of the people mentioned, he said he had seen Anthony once in 2006 and had not seen Anthony and Andrew together for the previous five years. 4. Daniel Perish did not know Witness A but knew of a man called Nosey. He did not recall meeting him. He denied that in 2001 he gave Witness A $3,000 in cash. At the time he was living in Hoxton Park or Rossmore. He denied that he had ever attended a meeting involving his parents, his brothers Anthony, Andrew and Matthew, Witness B and a solicitor named Monika Mellar where Anthony touched his nose and said words like, "This cunt has been talking". The last time he saw Witness B was about four years before. He had not seen him very often back in 2001. He had met Monika Mellar. He thought that in 2006 she was studying to become a lawyer. 5. In cross-examination by the Crown, he agreed that in 2001 he worked at Diesel Dan's, and was in regular contact with his brother Andrew. He did not recall receiving two telephone calls on 29 October 2001 at 9.51 and 9.54 or that it was at about that time that Andrew came to his house with Witness A. He denied that in late 2001 Andrew came to his house to collect some money. 6. Monika Mellar was a family friend but Daniel Perish did not know for how long she had been a family friend. He had only seen her a handful of times in his life and did not remember her further back than ten years before. 7. He knew that Witness B shared a house with Anthony in 2006 or 2007. He had never met Witness E and was not aware he was a good friend of Anthony's. He had heard that Witness A's nickname was Nosey and knew that from growing up in Leppington. He believed Witness A had some association with the local motorcycle club. Daniel himself did not have an association with any motorcycle club. 8. Daniel had remained in contact with all of his family and was close to all of his family members. Mr Anthony Perish – Conviction appeal 1. Mr Anthony Perish (who for convenience in this section of the judgment we will call the first appellant) raises three grounds of appeal. The grounds are as follows: "1. A miscarriage of justice was occasioned by the admission of the evidence of witness C that witness E told him that the applicant told witness E that 'it didn't matter [that the deceased had died before he got to the applicant as] that's how he would have ended up anyway'. 1A. The learned trial judge erred in directing the jury with respect to the evidence of witness C that witness E told him that 'it didn't matter [that the deceased had died before he got to the applicant as] that's how he would have ended up anyway', such that, as a result of the directions, the evidence was available to the jury as evidence of an admission by the applicant. 3. The verdicts of the jury are unreasonable or cannot be supported by the evidence." 1. There was no appeal against the sentence imposed. Grounds 1 and 1A 1. Grounds 1 and 1A are related and it is convenient to deal with them together. 2. To understand these grounds it is necessary to have some regard to the manner in which the case was conducted by the first appellant. The first appellant did not dispute that he participated in an arrangement for Witness E, amongst others, to abduct the deceased and that the deceased was at risk of harm in the carrying out of this enterprise. He pleaded guilty to manslaughter on that basis. 3. The first appellant submitted that a critical issue in the appeal was whether the deceased was alive at the time when Witness E's vehicle arrived at Turramurra. We have pointed to the evidence of Witness E in his ERISP at [128]-[149] above. Relevantly, this evidence, if accepted, established first, that the first appellant requested that Witness E abduct the deceased, bring him for questioning and thereafter return him to prison. It would also establish that the deceased was alive when Witness E's vehicle arrived at Turramurra, that the first defendant assaulted him and that thereafter the deceased was driven to Girvan. 4. As we also pointed out, in his evidence at trial, Witness E said that at Turramurra he thought the deceased was alive, he recalled that he was in the back coughing. He also stated he could not recall having a conversation with the first appellant during the course of which a decision was made to kidnap the deceased and ask him some questions. He denied that when he left Turramurra he knew the deceased was dead. As we pointed out at [167] above, he could not recall telling Witness C that he had hit the deceased too hard and killed him. 5. The first appellant thus contended that a critical issue in the proceedings was whether the deceased was alive at the time he arrived at Turramurra. If the jury was not satisfied beyond reasonable doubt that the deceased was alive at that time, it would be necessary for them to be satisfied beyond reasonable doubt that it was always the intention of the first appellant that the deceased was to be killed. 6. In this context, the first appellant pointed out that Witness E had a strong motive for maintaining the deceased was still alive when he delivered him to Turramurra, namely to avoid liability for the murder. He pointed out that in sentencing, the trial judge was unable to conclude beyond reasonable doubt that the deceased was the alive when he reached Turramurra. 7. It is against this background that the evidence the subject of Grounds 1 and 1A of the appeal fall to be considered. 8. Witness C gave evidence that he was told by Witness E about the abduction. He then gave evidence of a conversation with Witness E in which Witness E stated that the reason the deceased was abducted was because the first appellant believed that the deceased and another gentleman had murdered his grandparents. In further questioning concerning this conversation, Witness C gave the following evidence: "Q. Was there any further conversation about the episode other than that? A. He also relayed that he was concerned at the time that [the applicant] was going to be, he was going to be in trouble with [the applicant] because Falconer had got to [the applicant] but he died before he got to him and [witness E] went on to say that [the applicant] said that it didn't matter, that's how he would have ended up anyway." 1. The Crown addressed on the evidence making the following remarks: "Now the question of whether he was alive or dead at Turramurra matters not to the Crown, for the reason I indicated to you ladies and gentlemen, because the Crown says to you there was an intention to kill this man all along, and that the act, or acts, whatever they were, that caused his death were caused whilst there was on foot an intention to kill him, and that is murder, but I do want to examine this question because you would have to look for evidence to support as a foundation to support the proposition that Mr Falconer was dead by the time he got to Turramurra. In support of that proposition there is only this: First, well after the event Witness E saying to Witness H something along the lines of, 'He got a bit lippy and he was mouthing off and being smart so I went up and chopped his head off'. That didn't happen at Turramurra anyway. Further, 'He was going to rat on us, and he had to go'. That is what he told Witness H. What he told Witness C was, 'I hit him too hard and he died, but it didn't matter, that would have happened anyway'. Witness E gave an explanation for giving varying tales, varying accounts to each of those witnesses in his record of interview, and I have already read this to you but whilst we're dealing with this particular island of evidence I will remind you of it. He said: 'There is one thing I should add probably before being questioned … broken neck, and it was all an accident'. Now you can infer from that that firstly [Witness H] and Craig were only told that part of the plan that had to involve them, the abduction, because Witness E purports to say that he had to explain to them why it was, a man they had been involved in abducting, was then dead. But as an extension of the explanation he gives for giving those varying stories in his interview, he said this in his evidence to you when he was being cross-examined at 1157, line 6: 'Q. And you might have implicated yourself … the reason.' Now as chilling as it may be, what Witness E is saying is that he deliberately fed some misinformation to each of those individuals because if any one of them were to roll, he would be able to identify who was the source of the particular piece of misinformation. So that again is part of that window into another society that when you think it through you can see what Witness E is saying. Well, you feed a bit of this misinformation here, you feed a bit of misinformation there, and if someone rolls, you would be able to track it back. So you have got to take that into account when you consider the proposition that Falconer was dead before he got to Turramurra on the basis of things that Witness E said to Witness H and Witness C's [sic]. It's not much of a foundation." 1. Senior counsel for the first appellant who appeared at the trial (trial counsel) also addressed on the evidence: "So what do you make of Witness E's evidence? His Honour will give you some directions about the approach that you must take in relation to assessing believability and his credibility, but at the foundation of it in my submission is the fact that he is inherently unreliable, because he was trying to give a version of the facts that gave him least responsibility, and that that act that you saw, the crying, the performance that he gave, is not inconsistent with the performance that he gave here. That performance which, as Mr Hanley has pointed out to you, meant that those representing the accused, particularly Anthony Perish and Matthew Lawton, couldn't cross-examine him, couldn't challenge or test his version of events, because his answer to everything was, 'I don't remember'. But one thing he could remember and he insisted upon was that Mr Falconer was still alive at Turramurra. Because he knew that if Mr Falconer was still alive at Turramurra, then his responsibility for the death went away, he could blame it on other people, but if Mr Falconer was dead at Turramurra, then he bore responsibility, not alone, but with others for that death; with Anthony Perish at least. But he is spreading responsibility for these things to Anthony Perish. What does he do? He implicates Witness C. He says Witness C knew all about this plan before it happened. That Anthony Perish approached Witness C and talked about this plan to abduct Terry Falconer long before it happened. And of course he gives us his reason for becoming involved in it is this hundred thousand dollars that he claims Witness C borrowed from Anthony Perish, of which he was given 30,000, and he owed this debt. What does Witness C say? No he never borrowed a hundred thousand dollars from Anthony Perish, and no he knew nothing about this plan until after Mr Falconer had been abducted. So again, that it is the spreading of the blame. It's not just me, he knew about it too. The reason I did it was because I owed money, and I had to pay off the debt. All those things. But the real truth of what happened you might think comes from the things that he told other people after the event. Why would he tell somebody that he had been the cause of the death if that wasn't so? Why would he tell Witness H? Why would he tell Witness C? Witness H, he had to go. He was going to rat on us. He was not giving me the answers that he wanted so I chopped his head off. That is what he told Witness H. Not it was a terrible accident, wasn't meant to happen. That's what he told him happened. But more importantly Witness C, there was a struggle in the backseat, I hit him too hard and he died. That was the first version. Then a few days later Witness C saw him again, and he was told by Witness E that in my submission to you was the most telling piece of admission by Witness E at all. He was dead before he got to Steve, and he couldn't question him. He was dead before he got to Steve. Because he was concerned that he would be in trouble. He was explaining to [Witness C] what had happened, that he was dead before he got to Steve, and he couldn't question him. What does that mean, he was dead before he got to Turramurra? That is what he told him. He then went onto [sic] throw in the line oh, but Steve said that okay because he was going to die anyway. He never said that to police. And you will have to approach that with great caution because I have to say Witness E doesn't attribute that to Mr Perish, that is what Witness C remembers him saying. He was concerned about being in trouble with Mr Perish because the whole point to the exercise had been lost because he was dead before he got him to Steve." 1. The trial judge repeated the evidence in his summing up and gave the jury the following direction in respect of it (substituting the pseudonyms used for Witnesses C and E with their actual names, which were used in the directions): "Members of the jury, [Witness C's] evidence that [Witness E] told him that Steve said that it didn't matter 'that's how he would have ended up any way [sic]' is hearsay. And, as I have said, the law considers that it may be unreliable. I warn you, you should treat this evidence with care and caution in determining whether to accept the evidence and the weight to be given to it. Once again, as a matter of common sense, you might think that if a person is being talked about in a conversation and he is not there at the time he is unable to say 'hang on, that's not true'. The conversation occurred some time ago and [Witness C] may not have accurately recalled it. Once again I am not suggesting that this evidence of [Witness C's] must be regarded as unreliable. Whether you accept the evidence and what weight you attach to it is a matter for you." 1. There was no objection either to the admissibility of the evidence or the direction given by the trial judge. The first appellant's submissions 1. The first appellant submitted that the evidence of Witness C contained a representation that the first appellant had told Witness E that the deceased was going to end up dead anyway. He submitted this evidence was second hand hearsay and not admissible under any of the exceptions to s 59 of the Evidence Act 1995 (NSW) (the Act). 2. Senior counsel for the first appellant submitted that the significance of the evidence lay in the fact that there were two significant strands of evidence: that of Witness A and that of Witness E. He pointed out that the evidence of Witness A was significant to the Crown case because he gave evidence that established a pre-existing intention to kill the deceased, however, he was not involved in the events leading up to the deceased's death. 3. Senior counsel pointed to the fact that Witness E gave evidence that the original plan was to abduct the deceased and return him to Silverwater. He pointed out that Witness E ultimately gave evidence consistent with there being an intention to kill, referring to the evidence of the first appellant's assault on the deceased and the placement of him back in the box for a number of hours. He submitted that the difficulty with that evidence was that it was dependent upon the jury being satisfied beyond reasonable doubt that the deceased was alive when he arrived at Turramurra. 4. Senior counsel for the first appellant submitted that by contrast the hearsay evidence the subject of this ground of appeal suggested it was always intended the deceased was going to be killed. He described it as a crossover between the two bodies of evidence and thus powerful evidence in favour of the Crown. 5. Senior counsel for the first appellant accepted that the evidence was admitted without objection. In that context he made two submissions. First, to the extent that r 4 of the Criminal Appeal Rules had any application, the admission of the evidence gave rise to a substantial miscarriage of justice. Second, he submitted that notwithstanding its admission, it was not available to prove the truth of the representation complained of. In this context, he submitted that the direction of the trial judge, which at least impliedly accepted that the evidence was admissible to prove the truth of the representation said to have been made by the first appellant, was erroneous. He submitted this gave rise to a substantial miscarriage of justice such that r 4 applied. 6. The first appellant filed an affidavit by trial counsel. It is convenient to set out the relevant paragraphs of that affidavit in full: "3. I recall that a critical issue in the applicant's trial was whether the deceased was still alive when he arrived at Turramurra. In this regard it was an important part of the applicant's case to establish that the deceased was already dead by this time, or at least there was a reasonable possibility that this was so. 4. I have, in the course of preparing this affidavit been reminded that Witness E gave his evidence before Witness C. Prior to witness C giving evidence I anticipated that he would give evidence of a conversation he had with Witness E. I cross-examined witness E on the basis of the evidence I anticipated that witness C could give. In particular I have been shown the transcript of my cross-examination of witness C at T1216.39ff where I put the following to witness C: Q. What I want to suggest to you is that after the event, in one of the conversations you had with witness, when you were telling him what happened, you said to him that you thought you were going to be in trouble with Steve – that was a name that Anthony Perish used, wasn't it? A. Yeah, I remember that. Q. Because Falconer was dead before he got him? A. I don't recall having a conversation with [Witness C], what the content was, but – I would have had a conversation with him, but I can't comment on what was said. I can't comment on whether that's true or not. Q. And one of the other things that you said to Witness C was that: 'I really fucked up there. He was only supposed to be taken to somebody else. I fucked up? A. I can't remember the content of the conversation. I would definitely have had a conversation with him. 5. I asked the above questions as the statements made by Witness E to Witness C (on the expected evidence of Witness C) were inconsistent with Witness E's evidence including the evidence in his recorded interview. As noted above, I wanted to discredit Witness E's evidence that the deceased was still alive when he reached Turramurra. 6. When C gave evidence I was of the view that it was important to prove the prior inconsistent statement that I had put to witness E. I am aware that the following evidence was given by witness C in his evidence in chief (at T1273.18): Q. Was there any further conversation about the episode other than that? A. He relayed that he was concerned at the time that Steve was going to be, he was going to be in trouble with Steve because Falconer had got to Steve but he died before he got to him and [Witness E] went on to say that Steve said it didn't matter, that's how he would have ended up anyway. 7. At the time witness C gave evidence I was aware he was likely to give the above evidence having regard to the evidence he gave at committal. I did not turn my mind to the fact that the evidence 'it didn't matter, that's how he would have ended up anyway' was second hand hearsay and may have been rejected had I objected to it. 8. I was of the view that the representation 'Steve said it didn't matter, that's how he would have ended up anyway' was damaging to the applicant's case. However I did not object to this part of the evidence as I was of the view that in order to have the first part of the conversation, that is the statement: 'he was concerned at the time that Steve was going to be, he was going to be in trouble with Steve because Falconer had got to Steve but he died before he got to him' I had to accept the second part of the conversation would be admitted. 9. Thus, whilst I was of the view that the statement attributed to the applicant 'it didn't matter, that's how he would have ended up anyway' was damaging to his case, it was my forensic decision that I was prepared to have that evidence in if it meant that the evidence that Witness E had previously made a statement that the deceased was dead at Turramurra would also be admitted. 10. I am aware that in cross-examining witness C, I asked him questions (at T1282) with respect [to] the utterance that the deceased was already dead before he got to the applicant but did not ask any questions in relation to the utterance 'Steve said it didn't matter, that's how he would have ended up anyway'. This was because I wanted to highlight the helpful part of this evidence and not the damaging part." 1. The first appellant contended that if, objectively speaking, the decision to not object to the evidence was not a rational forensic decision, the only question which remained was whether the first appellant had lost the chance of an acquittal. 2. In that context, senior counsel for the first appellant submitted that the evidence in question contained three representations. First, Witness E told Witness C that the deceased was dead before he got to the first appellant. Second, Witness E told Witness C that he was worried as to the first appellant's reaction to that fact and third, that Witness E told Witness C that the first appellant told him the deceased was going to end up dead anyway. 3. Senior counsel for the first appellant submitted that the first two representations were admissible but the third was not. He submitted it was not a rational forensic decision not to object to the third representation. For the reasons indicated above, he also contended that the admission into evidence of the third representation constituted a miscarriage of justice. 4. In support of this proposition, senior counsel for the first appellant referred to the cross-examination on this topic by trial counsel. He submitted that the cross-examination of each of Witnesses C and E avoided any examination on what we have described as the third representation. He submitted this showed that the admission of the unfavourable portion of the communication could not be justified as a rational forensic choice. 5. Senior Counsel for the first appellant also submitted that irrespective of whether the evidence was not objected to, it had no probative force. This was because, even after admission, the effect of s 59 of the Act was that the evidence was not admissible to prove that the first appellant had stated that the deceased would end up dead. Thus, he said, it had no relevance and the trial judge erred in effectively directing the jury that they could take it into account. He also submitted, referring to Poniris v The Queen [2014] NSWCCA 100 (Poniris) at [49] that where, as in this case, the danger of unfair prejudice was manifest there was an obligation on the trial judge to exclude the evidence under s 137 of the Act as part of his or her continuing obligation to ensure a fair trial according to law. He submitted that the trial judge should have at least directed the jury that they could not take account of the evidence. In that context, he accepted that r 4 applied but submitted there was a substantial miscarriage of justice in the direction given. 6. Senior counsel for the first appellant accepted that trial counsel was aware of s 59 of the Act and the manner it was interpreted in Lee v The Queen [1998] HCA 60; 195 CLR 594 (Lee) but submitted that this did not alter the fact that s 59 applied to the evidence. He also submitted the evidence was irrelevant to Witness E's credit. The Crown submissions 1. The Crown submitted that hearsay evidence (not falling within any of the exceptions to the hearsay rule) was inadmissible over objection. It was submitted that no objection was taken to the evidence, which was similar to that which previously had been given at the committal hearing. It was also submitted that the Crown did not rely on the evidence as truth of the representation and, by contrast, the first appellant sought to take advantage of the conversation generally. In those circumstances, it was submitted there was no miscarriage of justice. 2. The Crown submitted, referring to portions of the trial counsel's address to which we have referred at [228] above, that it did not seek to use the evidence as truth of the representation but that by contrast trial counsel embraced what was described as the misinformation evidence and urged the jury to use it as an indication of Witness E's unreliability. 3. The Crown submitted that, subject to ensuring a fair trial according to law, there is no obligation on a trial judge to reject evidence to which no objection was taken and that it was well recognised that the words not admissible when used in the Act are to be construed as meaning "not admissible over objection". The Crown pointed to the fact that the Act operates within an adversarial context. It was submitted that the first appellant made a legitimate forensic choice to make use of the evidence and that this was not a case where there was a manifest danger of unfair prejudice, such as to require the trial judge to reject the evidence of his own motion. 4. Senior counsel for the Crown pointed to argument at the trial in respect of the ERISP given by Witness E, where trial counsel had argued that certain portions of it were not admissible, relying on Lee. She contended that it was clear that trial counsel would have been aware that the evidence was inadmissible but made a deliberate decision not to object to it. Senior counsel for the Crown submitted that this occurred in circumstances where trial counsel was aware from what occurred at the committal hearing that Witness C was going to give the evidence in question. 5. Senior counsel for the Crown submitted that the key to understanding the significance of the evidence was to appreciate its relationship to Witness E's "misinformation strategy". She pointed to the fact that in his ERISP, Witness E stated that the deceased was alive when he arrived at Turramurra and died en route to Girvan. She also pointed to evidence where Witness E stated that, in order to keep tabs on other members of his team and to trace the leaking of information concerning the abduction, he told different persons different things. She submitted a key aspect in the proceedings was the timing of the deceased's death which was why it was important to the first appellant that Witness E be discredited on this issue, particularly having regard to his defence to the effect that he was a party to a joint criminal enterprise to kidnap the deceased, anticipated that force might be used and was an active participant in the disposal of the body but had no intention to kill the deceased. 6. So far as Ground 1A was concerned, senior counsel for the Crown submitted that inadmissible in s 59 of the Act meant inadmissible over objection and that the proposition that even after admission it could not support the hearsay representation was contrary to authority. 7. In supplementary submissions on Ground 1A, filed after the conclusion of the hearing, the Crown accepted that the evidence was second hand hearsay and thus did not fall within the exception to the hearsay rule contained in s 60(1) by virtue of s 60(3) and that the admission was not admissible under s 81 as it was not firsthand hearsay. 8. However, the Crown reiterated its submission that the evidence was relevant for a non-hearsay purpose, namely to attack the credit of Witness E on the basis that what he told Witness C was different to what he told the police. The Crown pointed out that the impugned statement was the last part of a conversation in which Witness E told Witness C the deceased was dead when he arrived at Turramurra. It was submitted that it was used to attack Witness E's statements in the ERISP. 9. In relation to the direction complained of, the Crown submitted that when the direction was read in the context of the summing up as a whole, it did not constitute a direction relevant to the first appellant's state of mind. It submitted that the evidence was not referred to in the course of directions on the issue of state of mind but only in that portion of the directions which dealt with the time and manner of the deceased's death. It was submitted that a fair reading of the charge to the jury showed that the direction was correct in warning the jury about the use they could properly make of the conversation in assessing the credibility of Witness E. In that context, the Crown contrasted the direction with the two other directions concerning admissions. 10. The Crown submitted that r 4 applied and, as such, it was necessary for the applicant to show that it lost a real chance (or a chance fairly open) of being acquitted. It was submitted that, having regard to the approach taken by trial counsel and the trial judge, the risk of impermissible reasoning was negligible. Further, it submitted that the jury could find it was part of Witness E's misinformation strategy and unlikely to be given any weight. Finally, the Crown submitted there was compelling evidence to support the guilty verdict and in those circumstances alone there was no miscarriage of justice. Consideration 1. As indicated above, it was common ground that the evidence complained of was not admissible under any of the exceptions to s 59 of the Act, nor as an admission. 2. It is also clear from the affidavit of trial counsel that she made a conscious decision not to object to the evidence. In her affidavit she stated she was aware the evidence in question would be given. Although she stated she did not turn her mind to whether it was second hand hearsay, she stated it was her forensic decision that she was prepared to have that statement in evidence if Witness E's evidence that he had previously stated the deceased was dead when he arrived at Turramurra would be admitted. 3. In TKWJ v The Queen [2002] HCA 46; 212 CLR 124, Gaudron J with whom Gummow J agreed, made the following comments on the question of whether decisions made by trial counsel were productive of a miscarriage of justice: "[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. [27] One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis. [28] As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice." 1. Her Honour also stated that "an accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not pursue a particular course at trial": at [32]. In that context, her Honour made the following remarks: "[33] Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that 'when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused'." 1. Hayne J, with whom Gummow J also agreed, expressed the position in the following terms: "[107] No less importantly, however, it follows from the characteristics of a criminal trial which I have identified that, when it is said that a failure to call evidence which was available to the defence at trial has led to a miscarriage of justice, the question presented to an appellate court requires an objective inquiry, not an inquiry into the subjective thought processes of those who appeared for, or advised, the accused at trial. The relevant question is not: why did counsel not lead the evidence, or was counsel competent or incompetent? It is: could there be any reasonable explanation for not calling the evidence? [108] If there could not be any such explanation, there may have been a miscarriage of justice. It would then be necessary to go on to ask whether the jury would have been likely to entertain a reasonable doubt about guilt if the evidence had been led. If, however, there could be a reasonable explanation for not calling the evidence, that will be the end of the matter. It is not to the point then to inquire whether counsel did or did not think about the point, or acted competently or incompetently, even though the conclusion that there could be no reasonable explanation for the course followed at trial would seem to entail the conclusion that counsel did not act competently. [109] To hold that the inquiry is not an objective inquiry of the kind I have described would require an appellate court to apply inquisitorial methods and standards in determining an appeal from what, at trial, has been an accusatorial and adversarial process. It would require the appellate court to examine whether, on all the material available, a jury would have been likely to entertain a doubt. That is a very different process from the process undertaken at trial which is predicated upon the parties choosing the field for debate and (subject to the obligations of the prosecution) the evidence that is to be led. The principles which inform the two processes are so radically different that they cannot be applied at successive stages of the judicial process. If they are to be merged in some way, that must occur throughout the system, not by applying one set of principles at trial and another, contrary, set of principles on appeal." See also Gleeson CJ at [8]-[16]. 1. In the present case, there was, objectively speaking, a rational basis for not objecting to the evidence. For the reasons we have given in dealing with Ground 3, in our opinion, the Crown case was powerful, even if the jury was not satisfied beyond reasonable doubt that the deceased was alive at the time he arrived at Turramurra. If the jury concluded beyond reasonable doubt that the deceased was alive at that time, the case becomes overwhelming. The first appellant admitted involvement in the kidnapping and the disposal of the body. If it was found the deceased was alive on reaching Turramurra, it is difficult to see how any conclusion other than that the first appellant murdered him could be reached. That is why it was vital to contradict Witness E's evidence that the deceased was alive at that time. In those circumstances, it was, in our opinion, a rational decision not to object to the unhelpful part of the conversation to ensure Witness E's prior statement to Witness C, that the deceased was dead when he arrived at Turramurra, was before the jury. This particular piece of evidence was described by trial counsel in her address as "the most telling piece of admission by Witness E at all". 2. In these circumstances, it does not seem to us that the admission of the evidence meant the first appellant lost the chance of an acquittal fairly open to him. However, even if it could not be said that the decision not to object to the evidence was a rational forensic decision, in our opinion, there was no miscarriage of justice as the first appellant did not in fact lose the chance of an acquittal. It is convenient to deal with that question after dealing with Ground 1A. 3. For the first appellant to succeed on Ground 1A, it is necessary for him to establish two matters: first, that notwithstanding the admission of the evidence it was not available to prove the truth of the representations that the first appellant told Witness E that the deceased would end up dead anyway; second, that the failure to direct the jury to that effect constituted a miscarriage of justice. In that context, the first appellant accepted r 4 applied. 4. There has been a consistent line of authority that the words "not admissible", where they appear in the Act, mean "not admissible over objection". 5. R v Reid [1999] NSWCCA 258 (Reid) concerned the then s 424A of the Crimes Act 1900 (NSW) which provided that unrecorded admissions by an accused to investigating officers were not admissible except in certain circumstances. Spigelman CJ at [3] noted that s 424A commenced at the same time as the Act. He stated at [5] that "the words 'is not admissible' should be construed as meaning 'is not admissible over objection'", stating that at the time it enacted the legislation, Parliament was well aware that the usual course in trials under the adversary system requires objection be taken to evidence. Greg James J agreed at [11]. That decision has been followed by this Court on a number of occasions: R v Spathis [2001] NSWCCA 476 at [416]; R v Lyberopoulos [2002] NSWCCA 280 at [41] (where Hulme J, with whom Mason P and Simpson J agreed, described the proposition as "trite law"); R v Kaddour [2005] NSWCCA 303; 156 A Crim R 11 at [62]; Gonzales v The Queen [2007] NSWCCA 321; 178 A Crim R 232 (Gonzales) at [25]-[26]; WC v The Queen [2015] NSWCCA 52 (WC) at [20]. 6. A similar approach has been taken by the Court of Appeal in civil proceedings: Selstam v McGuinness [2000] NSWCA 29; 49 NSWLR 262 at [149]; Gray v Ware Building Pty Ltd [2013] NSWCA 271 (Gray) at [94]. 7. The same conclusion was reached by the Full Court of the Federal Court in Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74 (SNF); 193 FCR 149. In that case, the Court expressed its conclusion in the following terms: "[25] Even if it were shown that Mr Schlag's evidence was hearsay and assuming that Mr Schroeter's was too, it would not follow that the trial judge was disabled from acting upon it once it was admitted into evidence, as it was, without objection. There is, in the Commissioner's favour, some academic support for the proposition that inadmissible hearsay, even when admitted, continues to have no value. The best arguments were marshalled by Professor W N Harrison in 'Hearsay admitted without objection' (1955) 7 Res Jud 58. Reference is made in that article (at 69-70) to Walker v Walker [1937] HCA 44; (1937) 57 CLR 630 which appears to show that a hearsay letter, once placed in evidence, is a legitimate source of probative material. Only Starke J arrived at the contrary conclusion. Of the four judges in the majority on this point, Evatt J (at 638) perhaps put it most clearly: 'I deny the proposition that, merely because the document was 'hearsay' and therefore inadmissible, it is necessarily deprived of probative value.' Professor Harrison sought to argue that Walker was better understood as a decision dealing with the principle which requires a cross-examiner who calls for a document to place it into evidence but this cannot be correct. Walker deals with both arguments and deals with them separately. So much is clear from the dissenting judgment of Starke J who agreed with the other judges as to the operation of the cross-examination rule (at 635) but disagreed with them about what the status of the document was once it was placed in evidence. That being so, Walker binds this Court to reject the Commissioner's contention. [26] In any event, later commentators have differed from Professor Harrison. Professor Heydon, as his Honour then was, commented that a contrary view to Professor Harrison's was preferable 'if only to prevent a large jump in the number of possible appeals based on the hearsay rule': 'Current Trends in the Law of Evidence' (1977) Sydney Law Review 305 at 307 fn 7; an observation having a certain resonance with the present appeal. The same author in the eighth edition of Cross on Evidence observed that 'the modern authorities appear to have moved beyond the conclusion for which Harrison contended': at [1680] p 133. In that regard, it is useful to note the conclusion reached by Spigelman CJ in Seltsam Pty Ltd v McGuinness [2000] NSWCA 29 (2000) 49 NSWLR 262 at 247 [149] that the words 'not admissible' in the Evidence Act 1995 (NSW) means 'not admissible over objection'. No principled reason for approaching the meaning of the same words in the statutory embodiment of the hearsay rule (s 59 of the Evidence Act 1995 (Cth)) presents itself; no justification for taking some other course. 1. These decisions have not been uncontroversial. In Cross on Evidence, the learned author states that the question has been sadly under analysed by both judges and jurists: J D Heydon (10th ed 2015, Lexis Nexis) at [1680]. In Uniform Evidence Law, the learned author describes the proposition in Reid as highly questionable as it failed to take into account the provisions of s 190 of the Act: Stephen Odgers (11th ed 2014, Thomson Reuters) at [1.3.290]. In Velkoski v The Queen [2014] VSCA 121 this criticism was said to have some force but the court did not rule on the issue. 2. There are a number of matters which it may be said suggest a contrary conclusion to that reached in the authorities above. First, the words "not admissible" in s 59 (and other sections of the Act) are not expressly qualified by the words "over objection". The same words are used in s 56(2) in respect of the inadmissibility of irrelevant evidence. This tends to suggest a contrary conclusion to that reached in the cases to which we have referred. 3. Furthermore, s 190 of the Act deals with waiver of the rules of evidence. As Giles JA recognised in Gonzales at [25], that section lends some further support to a conclusion contrary to that reached in the cases referred to above. However, s 190 deals with waiver of particular provisions of the Act. If as a matter of construction s 59 means inadmissible over objection, failing to object does not constitute any waiver of the provision within the meaning of s 190. 4. The words "not admissible" are to be contrasted against the use of words of prohibition, "shall not be adduced", in s 118 of the Act and the obligation of the court to refuse to admit evidence if the preconditions in s 137 of the Act are met. (It is unnecessary in these proceedings to form any view as to whether the approach to be taken by the trial judge to his or her obligations under that section are as set out in R v FDP [2008] NSWCCA 317; (2009) 74 NSWLR 645 or R v Le [2002] NSWCCA 186; 130 A Crim R 44). The different wording does lend support for the view that "admissible" means "admissible over objection", particularly when viewed in the context that Parliament would have been aware that s 59 would operate in adversarial proceedings, in which generally it is counsel's responsibility to present their clients' case and to object to such evidence as they think fit in the interests of their client. 5. We should add that we are not of the view that the decision of the High Court in Walker v Walker [1937] HCA 44; 57 CLR 630 (Walker) provides support for the conclusion reached in the cases to which we have referred: See particularly SNF and Gray at [94]. The issue in Walker was the evidentiary effect of a document which the appellant was required to tender having called for it, a rule abolished by s 35 of the Act. In these circumstances it does not appear to be of assistance in construing the present legislation. 6. Taking these considerations into account, we are not satisfied that the construction of the words "not admissible", in the cases to which we have referred above, is plainly wrong. Indeed, the better view is that it is correct. We are fortified in reaching this conclusion by two matters. First, the conclusion is consistent with the adversarial nature of a trial, including a criminal trial. The fact that the Act applies in an adversarial context was made plain in Dhanhoa v The Queen [2003] HCA 40; 217 CLR 1. In a joint judgment, Gleeson CJ and Hayne J made the following remarks: "[20] Sections 114 and 115, like many other provisions of the Evidence Act, declare that evidence of a certain kind is not admissible in certain circumstances, or unless certain conditions are fulfilled. Yet evidence of a kind to which those sections refer may not be the subject of objection. Counsel for an accused person may have any one of a number of reasons for not objecting. A trial judge ordinarily will not know why no objection is taken, and may have no right to enquire. Counsel might decide not to object simply because he or she knows that that accused, upon giving evidence, will admit that the identification evidence is correct. The Evidence Act applies in an adversarial context. It is the parties, and their counsel, who define the issues at trial, select the witnesses, and choose the evidence that they will lead, and to which they will take objection. It is the duty of the prosecution, in its case, to lead the whole of the evidence to which the accused is required to make answer. It will often appear, in the course of a defence case, that some, perhaps much, of that evidence is not in dispute. In that event, it will be appropriate for a judge to point that out to the jury." 1. This statement, particularly the comment that it is for the parties to choose the evidence to which they will take objection, lends support to the conclusion contended for by the Crown. 2. Second, nothing we have said relieves the trial judge from his or her overriding obligation to ensure a fair trial according to law: Pemble v The Queen [1971] HCA 20; 124 CLR 107 at [18]-[20]; James v The Queen [2014] HCA 6; 253 CLR 475 at [24]. To the extent necessary, this obligation would extend to requiring the trial judge on his or her own motion to exclude inadmissible evidence, the effect of which would deny a fair trial, and in other circumstances to direct the jury not to take account of a particular piece of evidence which would have been rejected had objection been taken. 3. In the present case, the admission of the evidence resulted from a rational forensic decision made by trial counsel. In these circumstances, there was no need for the trial judge to intervene to reject its admission. 4. It remains to be considered whether a miscarriage of justice resulted from the failure of the trial judge to direct that the evidence could not be used as an admission by the first appellant that he intended to kill the deceased. The first appellant accepted r 4 applied and it was necessary for him to show that as a result of the failure to give the direction, the first appellant lost a real chance, or a chance fairly open, of being acquitted: ARS v The Queen [2011] NSWCCA 266 at [148]; Poniris at [59]. 5. In the present case, we do not consider the first appellant lost such a chance. The relevant portions of the addresses to the jury have been set out above, as well as the direction by the trial judge. It is important to note that the Crown in its address stated that it was immaterial to the Crown case that the deceased was killed before or after he reached Turramurra. However, the Crown relied on Witness E's evidence that he was alive when he reached Turramurra but sought to dismiss what Witness C alleged he was told by Witness E, as one of Witness E's varying accounts given to different people as part of his misinformation strategy. The Crown did not rely on the admission complained of to support the Crown case. 6. Trial counsel advanced the submission that Witness E was inherently unreliable but emphasised that he had told Witness C that the deceased was dead before he reached Turramurra. She emphasised that he did not tell the police that the first appellant said he was going to die anyway and emphasised the care that had to be used in dealing with the hearsay evidence. 7. In these circumstances, when the Crown placed no reliance on the admission and the defence dealt with it in the terms indicated, it does not seem to us that the first appellant was deprived of a real chance of acquittal as a result of the direction by the trial judge, even if it could be said the direction was erroneous. The hearsay evidence of a statement given by a person who both parties contended was unreliable in particular respects, coupled with a caution about its use, leads to the conclusion that the admission would be unlikely to be a significant factor in the jury's deliberations. It is necessary to consider this question in the context of the case against the first appellant as a whole. This has been dealt with in our consideration of Ground 3. The matters to which we have referred in dealing with that ground show, in our opinion, that the case was strong – discounting the evidence complained of and accepting that there was reasonable doubt that the deceased was alive when he reached Turramurra. In these circumstances, we do not think the admission of the evidence or the direction given by the trial judge deprived the first appellant of a real chance of acquittal. 8. It follows that Grounds 1 and 1A have not been made out. Ground 3 The first appellant's submissions 1. The first appellant submitted that the primary issues were, first, whether it was established beyond reasonable doubt that the deceased was still alive at the time he reached Turramurra and second, whether the first appellant, prior to the abduction, had the intention to kill the deceased. 2. The first appellant accepted that if the deceased was alive at Turramurra, there was a strong case of murder against him. However, he submitted the case was not strong if the deceased was not alive at that time. He submitted that whilst reckless indifference to life was raised, there was no real case of reckless indifference available. In that context, the first appellant pointed out that he was not present when the relevant decisions concerning the abduction were made and that it was inherently unlikely that he believed the deceased would die as a result of being transported to Turramurra. He submitted that the manner of the abduction indicated an intention to bring him to Turramurra alive. Further, he contended that the need to prove an intention to kill was reflected in the Crown's address. 3. The first appellant submitted that the trial judge's finding, contained in his remarks on sentence, to the effect there was a reasonable possibility that the deceased was dead by the time he reached Turramurra, was amply supported by the evidence. He submitted that the evidence of Witness E to the contrary was undermined by a motivation which he had to limit his liability in respect of the killing. He also submitted that the possibility the deceased died before reaching Turramurra was supported by the fact that on a hot day he was locked in a metal box with no air holes for over two hours whilst being transported to Turramurra. He pointed to the evidence of Professor Lyons, a forensic pathologist, who explained it was a possibility that a person under the influence of anaesthetic and positioned in a metal box the same way as the deceased was, would die within two hours. 4. The first appellant also referred to the evidence of Professor Lyons to the effect that the trauma sustained by the deceased was inconsistent with Witness E's evidence that the appellant had grabbed the deceased's head and slammed it into the box and rather, was more consistent with injury as a result of a kick or a punch to the face. He submitted this cast further doubt on Witness E's evidence. 5. The first appellant also referred to other inconsistent accounts given by Witness E as casting doubts on the reliability of his evidence. He referred to the evidence of Witness H to the effect Witness E told him the deceased "had to go" and that he was not giving the answers they wanted so "he chopped [the deceased's] head off". 6. In these circumstances, the first appellant submitted, it was not established beyond reasonable doubt that the deceased was alive at the time he arrived at Turramurra. 7. The first appellant further submitted that the evidence of Witnesses A and E and to a lesser extent Witness B was not a sound basis to establish beyond reasonable doubt that he had the intention to kill the deceased. 8. The first appellant submitted that, with the exception of the evidence the subject of Grounds 1 and 1A, Witness E did not give evidence supporting the existence of an intention on the part of the first appellant to kill the deceased prior to the abduction. He submitted that, to the extent Witness E gave evidence of events after the abduction, once it was accepted there was a reasonable possibility the deceased was dead on arrival at Turramurra, his evidence could not be relied upon in relation to subsequent events. 9. The first appellant disputed the fact that Witness E's evidence of the first appellant having duct tape and wire to wrap up the body indicated a high degree of planning. Rather, the first appellant contended it was reasonably possible that these items were present in a shed on a country property without prearrangement. 10. Senior counsel for the first appellant referred to the evidence of Witness E that white suits were available at the Girvan premises where the dismemberment took place. He said the evidence had to be treated with caution having regard to Witness E's credibility. 11. The first appellant also pointed to the fact that both Witnesses H and E consistently gave evidence that the abduction of the deceased was for the purpose of questioning him and that he was to be dropped back to work after being questioned. 12. The first appellant submitted it was not possible to rely on Witness A's evidence to reach a conclusion to the requisite standard. He submitted Witness A was a career criminal and generally disreputable. 13. The first appellant also submitted that throughout his involvement with the police investigation, Witness A reported a number of bizarre incidents which cast doubt on his mental state. We referred to this evidence at [65]-[66] above. The first appellant submitted these reportings indicated that Witness A was suffering from intense paranoia. 14. However, the first appellant conceded there was a legitimate basis for Witness A's belief that he was in danger. He had given evidence against the Rebels Outlaw Motorcycle Club and had been stabbed seven times whilst at Lithgow Gaol. He submitted Witness A's intense fear of being murdered provided him with a powerful motive to obtain police protection. 15. The first appellant also referred to the fact that Witness A's statement was given after 26 meetings with the police which took place between 29 August 2002 and 8 May 2003 and that his statement was not finalised until 15 July 2003. He submitted, in those circumstances, Witness A had ample time to obtain details of the matter which gave him an opportunity to fabricate a story which would assist the police. 16. The first appellant pointed to a number of other matters which he submitted cast doubt on Witness A's evidence. First, Witness A initially told the police he was obliged to repay the money given to him by the first appellant to repair the boat, which was inconsistent with the Crown case that the first appellant financed the repairs as part payment for the disposal of the body. 17. Second, the first appellant pointed to the evidence of Witness A concerning the McDowell phone, which he said was given to him by Matthew Lawton (see above at [35]-[38]). He pointed to the evidence of Witness A that, to the best of his knowledge, the phone was delivered a couple of days after the dinner with the first appellant and Mr Andrew Perish at Newtown and to his evidence that he never intended to go through with the plan but rather, was using the McDowell phone to leave a trail which would assist him when police became aware of the enterprise. 18. The first appellant pointed to the fact that the receipt from the company which repaired the boat indicated it was put in for repairs on 12 October 2001, which having regard to Witness A's evidence, put the Newtown meeting on 11 October 2001. However, he submitted the evidence from Witness A's phone records established that Witness A was in phone contact with Mr Andrew Perish by 9 October 2001 (see above at [34]). He submitted that this contradicted Witness A's evidence that he had no contact with Mr Andrew Perish prior to the day of the Newtown meeting. The first appellant also referred to phone records which showed a call made from Witness A's phone to Anthony Perish originating from Badgery's Creek at 9.11pm on 11 October, the day of the Newtown dinner. He submitted this cast considerable doubt on whether the Newtown dinner occurred at all. 19. In relation to the McDowell phone, the first appellant submitted the record showed it was not activated, and therefore could not have been used, prior to 29 October 2001. Further, he submitted that following the call which activated the SIM card there were no calls supporting Witness A's use of the phone. He submitted the McDowell phone thus provided no real support for the evidence of Witness A. 20. The first appellant also pointed to the fact that although Witness A said he went to Newcastle on 31 October solely for the purpose of reconnaissance for the first appellant and did not take the boat, he conceded in cross-examination that he may have in fact taken it. The first appellant submitted that on that basis, the trip was entirely consistent with wanting to take the boat out after repairs. 21. In relation to the proposition that the dismemberment of the deceased took place in the same region of NSW as that referred to by Witness A, the first appellant submitted that Witness A had ample opportunity to weave this into his story. 22. The first appellant also submitted it was unlikely, having invested $8,700 in repairs, that after being unable to contact Witness A on his Mobile 2 phone, no attempt would be made to contact him on his other phones or visit him to inquire as to the status of the boat. He submitted that the sudden end to Witness A's involvement cast doubt on the question of whether Witness A was involved at all. 23. Senior counsel for the first appellant sought to further attack the evidence of Witness A. He referred to the evidence of Witness A to the effect that his girlfriend, Witness F, was present when $1000 was given to him by a woman named Denise prior to the Newtown meeting (see above at [23]). He pointed out that by contrast, Witness F's evidence was that she did not see Witness A receiving any money. 24. The first appellant stated that the evidence of Witness B to the effect that a meeting took place between Witness B, Witness E and himself in which he stated "We killed him at [Witness E's] mother's property up the coast", did not advance the matter as it was inconsistent with the fact that the Girvan property had no connection with Witness E and there was no evidence the deceased was killed at the property. 25. The first appellant submitted that the timing of the abduction and, in particular, the fact that it would have been impossible to return the deceased to prison at the allotted time, did not support the inference that there was always an intention to kill him. He submitted there were a number of alternate explanations. First, the abduction took place later than anticipated, second, no thought was given to this issue and third, the deceased would sooner accept the consequence of his late return rather than implicate the first appellant and the other participants. 26. The first appellant made similar submissions as to the question whether an inference could be drawn from the failure of the abductors to wear masks. In particular, he pointed out that in addition to the deceased, the employees at the smash repair business would have seen the abductors. It was thus contended the failure to wear masks was inconsistent with the intention to murder the deceased. The Crown submissions 1. The Crown emphasised that the Court must not discount either the consideration that the jury is the body entrusted with the primary responsibility for determining guilt or the consideration that the jury has had the benefit of seeing and hearing the witnesses. The importance of this principle was emphasised in the context of the evidence of Witness A. It was submitted that Witness A had a cogent response to each of the criticisms levelled at him and that his evidence was supported by extrinsic material. 2. The Crown also submitted the trial judge gave the jury all the warnings required by law and directed them that each of Witnesses E and A were potentially unreliable by reason of having been criminally involved in the matters the subject of the proceedings. It was submitted that each of the problems with their evidence identified by the first appellant was raised by trial counsel for the Crown. 3. The Crown submitted that its case was that irrespective of when or how the deceased died; the first appellant always intended that the death would occur. The mode of the disposal of the body changed but the intent was always present. 4. The Crown pointed out that it was the Crown case that the deceased died in the furtherance of a joint criminal enterprise in which it was always intended that he be killed. However, the case also envisaged the alternative possibility that the first appellant acted with reckless indifference to human life. It submitted no application was made to the trial judge to suggest that a verdict of guilty on that basis was only available if the jury concluded the deceased was alive when he reached Turramurra. 5. The Crown submitted that the first appellant's submission that Witness E had a motive for minimising his liability overlooked the fact that he had already pleaded guilty and had been sentenced for his part in the offence. 6. In these circumstances, the Crown submitted that the evidence of Professor Lyons was of no assistance to the first appellant. The Crown referred to the evidence of Witness E to the effect that the appellant told him to handcuff the deceased, anaesthetise him, place him in a metal box and drive him to Turramurra. It was submitted that it could be inferred from that evidence that the applicant intended either to kill the deceased or was recklessly indifferent to his life. 7. In dealing with the inconsistent evidence of Witness E on the question of time of death, the Crown submitted it was open to the jury to conclude that such inconsistency was a result of the misinformation strategy which would permit the identification of anyone who leaked information concerning the abduction. The Crown also submitted that Witness E's evidence of the detailed preparations made by the first appellant for the abduction was probative of an inference that he had an intention to kill because it was consistent with Witness A's evidence of the first appellant's state of mind at the same time. The Crown referred to Witness A's evidence of the first appellant's keen awareness of the repairs made to the boat and the location from which it should be launched and to evidence that the first appellant counselled Witness A that it should be washed down with ammonia after the body had been dumped (see above at [51]). Senior counsel for the Crown pointed to the fact that Witness E gave evidence that the planning for the abduction commenced about three months before it occurred, which was the same time that Witness A said he was meeting the first appellant. 8. The Crown also emphasised the evidence of Witness E in which he described the first appellant's possession of three all-in-one suits available to be worn when the body was dismembered, the cutting of plastic matting to cover the floor, the block and tackle used to hang the corpse, the chemicals with which to wash the floor, the tools for cutting bone and the plan to burn the implements immediately after use (see above at [138]-[141]). It submitted the available material could not be described as items commonly found in a country shed. 9. Senior Counsel for the Crown also referred to the dismemberment of the body at the Girvan property, pointing out there was no suggestion that the first appellant was engaged in rural pursuits that required chicken wire, the plastic sheets and the block and tackle on which the deceased was dismembered. She submitted there was no challenge to the evidence concerning the suits, plastic, chemicals or material that was present at Girvan. 10. So far as the evidence of Witness A was concerned, the Crown pointed to the direction of the trial judge that his evidence should be scrutinised with care. It further pointed out that at the time of Witness A reporting the instances which the first appellant's submissions described as involving extreme paranoia, Witness A's evidence was that he had turned Crown witness both against the Perishes and the Rebels Outlaw Motorcycle Club and that he trusted neither the Perishes nor the police. The Crown submitted that given those factors, the circumstances of the deceased's abduction and the fact he had been stabbed at Lithgow Gaol, Witness A's fears were justified. It was submitted that the reporting of the bizarre incidents did not provide a proper basis to reject Witness A's evidence. 11. Although not of particular significance, the Crown also pointed to the fact that Witness A's home was within an area designated for training helicopter pilots. 12. The Crown pointed to the fact that Witness A denied the proposition that he gave evidence because he was afraid for his safety as a result of giving evidence to the Crime Commission. 13. The Crown referred to the first appellant's submissions to the effect that Witness A's account to the police about money owed for boat repairs was inconsistent with his evidence at trial. It submitted that the inconsistency was a result of police investigator's notes. The Crown pointed out that the investigating police had numerous meetings with Witness A at discreet locations and notes were not always taken (see above at [79]). The Crown pointed to the fact that eventually Witness A gave a statement, at which time he was not shown the investigator's notes nor invited to approve or adopt them. The Crown noted that his evidence at the trial was consistent with this first statement. In relation to the inconsistency between his statement to police that he owed money to the first appellant for the boat repairs and his evidence at the trial, the Crown pointed out that Witness A's evidence, that "Anthony Perish had given him $8,000 to fix the boat", was not undermined by the investigator's notes, although the police officer may have described it as money owed. 14. So far as the date of the Newtown dinner was concerned, the Crown pointed out that Witness A did not state that the dinner occurred on 11 October, rather the date was inferred from the date the boat was put in for repairs. The Crown emphasised that Witness A said he could not recall specific dates. 15. The Crown submitted that Witness A's credibility was not affected by the fact that a phone call was processed at Badgery's Creek at 9.11pm on the night the Newtown dinner was said to have occurred. It pointed out that Witness A had two mobile phones in active service and the fact the call was processed at Badgery's Creek did not mean he was in the area at that time. 16. In relation to the McDowell phone, the Crown pointed to the fact that Witness A did not say that two days after putting in the boat for repairs the McDowell phone was delivered, rather he stated that it was within a couple of days of the dinner. In relation to the use of the McDowell phone, the Crown pointed to the evidence of a police intelligence analyst, Mr Vogels, to the effect it was in daily or frequent use (see above at [54]). The Crown also pointed to the fact that the police were unable to obtain call charge records relating to the McDowell phone, so it was not possible to conclude that Mr Andrew Perish made no attempt to contact Witness A on it. The Crown pointed out that the phone records showed Andrew Perish trying to contact Witness A, three times on 14 November and twice on 15 November, the day before the murder. It was submitted that this was consistent with Witness A's account of his withdrawal from the conspiracy. 17. The Crown also contended that Witness A did not concede that he took the boat to Newcastle, rather, he was asked if he picked up the boat on the day he went to Newcastle and he said he could not specifically recall. The Crown pointed to the fact that when specifically asked where the boat was on 31 October he said he could not recall but "it wasn't with us". 18. The Crown also submitted that its case derived considerable support from the evidence of Witness B (see above at [18] and [108]-[119]). 19. In relation to the submissions of the first appellant that the Girvan property was not associated with Witness E, the Crown pointed to the fact that it was agreed in the proceedings that the first appellant had access to the Girvan property between 1999 and 2009 and that the first appellant admitted the body was dismembered at that property. 20. The Crown also highlighted the fact that the first appellant did not insist the abductors wear masks so that the deceased could not identify them and that it would not have been possible to return the deceased to prison at the appointed time. It was submitted it was never suggested to Witnesses H or E that they were late in picking up the deceased, describing the first appellant's submission to that effect as utter speculation. 21. Senior counsel for the Crown also pointed to the fact that the requisite intention was either an intention to kill or reckless indifference to life. She submitted the evidence of Witnesses A and E formed part of a continuum which started with the first contact with Witness A and finished with the dismembered body being thrown into the river. She submitted that the first appellant was pulling the strings, knew about the conversations between Andrew Perish and Witness E, was party to the conversation with Witness B when he requested Witness B obtain police uniforms and organised with Witness E to have the abduction carried out. 22. In these circumstances, senior counsel for the Crown submitted that the first appellant, having a motive to kill the deceased, namely a belief that the deceased killed his grandparents, actively took steps to ensure that the unlawful object bore fruit. Consideration 1. The principles on which a court will set aside a verdict as unreasonable are well established. In SKA v The Queen [2011] HCA 13; 243 CLR 400 (SKA) at [11]-[14] the Court stated that the approach to be adopted was that laid down in M v The Queen [1994] HCA 16; 181 CLR 487 (M) at 492-494. The Court is required to make its own independent assessment of the evidence. If after taking into account the primary responsibility of the jury in determining the question of guilt or innocence and the benefit of the jury having seen and heard the evidence, the Court is left in doubt as to the reasonableness of the verdict, the verdict should be set aside. In M the Court also stated, at 494, that in most cases the doubt experienced by an appellate court would be a doubt which a jury ought also have experienced and that it is only where a jury's advantage in seeing or hearing the evidence is capable of resolving the doubt that the court may conclude no miscarriage of justice occurred: See also MFA v The Queen [2002] HCA 53; 213 CLR 606 at [59]. 2. As is apparent from the summary of the Crown case, the case against the first appellant does depend significantly on the evidence of Witnesses A and E. However, a number of factors were either undisputed or unchallenged. First, the first appellant accepted that he was part of the joint criminal enterprise to kidnap the deceased. Second, it was not disputed that the first appellant was responsible for directing that the deceased's body be disposed of by transporting it to Girvan, dissecting it at a property to which he had access and disposing of the parts by dumping them into the Hastings River. Further, the Crown case showed that the first appellant had a motive to kill the deceased, namely his belief the deceased was responsible for the death of his grandparents. Even on the defence case, the deceased was to be abducted for the purpose of being questioned about their death. 3. We are prepared to accept that the jury should have had a reasonable doubt that the deceased was alive when he reached Turramurra. That has two consequences. First, for the jury to convict of murder it would be necessary for them to be satisfied beyond reasonable doubt that the first appellant intended that the deceased be killed from the time of his abduction or at least embarked on the criminal enterprise involving the abduction with reckless indifference to his life. Second, if the evidence of Witness E as to what occurred at Turramurra could not be accepted beyond reasonable doubt, it raised further issues as to his credibility. 4. It is convenient to deal first with the evidence of Witness A. The first matter which should be noted was that Witness A's evidence as to what was proposed to him by the first appellant, namely that the dismembered body of the deceased be placed in eskys and deposited into the sea, bore a marked similarity to what in fact occurred. Although it may have been possible for the jury to have concluded that Witness A learnt about the disposal of the deceased's body from other sources and wove it into his story, it was not unreasonable for the jury, having seen the witness, to reject this hypothesis. 5. There were other matters of concern with respect to Witness A's evidence. The incidents he reported to the police (see above at [65]-[66]) could well indicate some sort of mental disability. However, as the first appellant accepted, he had good reason for his fears. Whether these incidents were such as to cast doubt on his evidence was particularly a matter for the jury, which had the advantage of seeing him. 6. We do not think the fact that Witness A's evidence may have been incorrect as to the date of the November dinner necessarily led to there being reasonable doubt as to the question of whether it occurred, particularly when considered in conjunction with the similarity between what occurred and the proposal which Witness A said was put to him at that dinner. For similar reasons, the fact that a call from one of Witness A's mobile phones was logged at Badgery's Creek on 11 October does not, in our opinion, coupled with other evidence concerning the date of the November dinner, lead to there being reasonable doubt that that dinner occurred, although there may be uncertainty as to the precise date on which it took place. 7. In dealing with the November dinner, the Crown relied on what was said in a recorded conversation between Mr Andrew Perish and Witness A on 30 September. However, the exhibit was not tendered against the first appellant and in those circumstances we have not taken it into account. 8. We have referred to the submissions concerning the telephone conversations between the first appellant and Mr Andrew Perish above and it is unnecessary to repeat them. However, in circumstances where the evidence was such that it was impossible to conclude one way or the other whether Mr Andrew Perish contacted Witness A on the McDowell phone and, importantly, that Mr Andrew Perish was endeavouring to contact Witness A on the days immediately prior to the murder, there is nothing in the phone records which, in our opinion, cast doubt on Witness A's testimony. 9. In these circumstances, taking into account the fact the jury saw and heard Witness A, it was open to them to conclude beyond reasonable doubt that the first appellant intended to kill the deceased. 10. Witness E supports this conclusion. Even if the jury was unable to accept his evidence that the deceased was alive at the time he reached Turramurra, it was open to them to be satisfied of his evidence that he abducted the deceased at the request of the first appellant and his evidence regarding the method of the disposal of the body. Furthermore, it was open to the jury to infer that the disposal was prearranged, further strengthening a conclusion that the first appellant intended to kill the deceased or was at least recklessly indifferent to that outcome. He was not challenged on his evidence concerning the suits, plastic or chemicals which were available at Girvan to accomplish this object. 11. In these circumstances applying the principles in M and SKA, we are of the view that the verdict was not unreasonable. This ground of appeal has not been made out. In reaching this conclusion we have not taken any account of the second hand hearsay the subject of Grounds 1 and 1A. Conclusion 1. In the result we would make the following order: 1. Appeal against conviction dismissed. Mr Andrew Perish – Conviction and sentence appeal 1. Mr Andrew Perish (who in this section of the judgment we will call the second appellant) has appealed against his conviction and sentence. Initially he relied upon the following grounds of appeal. "1. That a miscarriage of justice occurred as a result of the appellant being tried together with his co-accused. 2. That the verdicts of the jury are unreasonable and cannot be supported by the evidence. 3. That a miscarriage of justice was occasioned as a result of the failure to disclose to the applicant information relevant to the eligibility and intention of a prosecution witness or witnesses to claim reward monies from the State in the event that the appellant was convicted in breach of s 15A of the Director of Public Prosecutions Act 1986 (NSW) or s 137 of the Criminal Procedure Act 1987 (NSW) or both; and 4. The sentence imposed upon the appellant was manifestly excessive." 1. At the hearing of the appeal on 8 and 9 September 2015 the second appellant did not press Ground 3. 2. Because the consideration of Ground 1 (separate trials) requires an analysis of relevant evidence, it is convenient to address Ground 2 first. As this ground does not involve a question of law alone, the second appellant requires leave to appeal against conviction: s 5(1) Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act). Ground 2 – That the verdicts of the jury are unreasonable and cannot be supported by the evidence. 1. The second appellant submitted that his role in the offending was confined to assisting in recruiting Witness A into the conspiracy and acting as a "go between" between Anthony Perish and Witness A. He submitted that the admissible evidence against him came almost entirely from Witness A (see above at [22]-[23], [25]-[28]). It was Witness A's evidence that the second appellant was present during the conversation which took place at the Newtown dinner. 2. The second appellant submitted that there was no evidence of any direct participation by him in either the abduction or the killing of the deceased. In contrast, there was a large body of evidence that both Anthony Perish and Matthew Lawton were involved in the planning, abduction and killing of the deceased. 3. The second appellant submitted that although Witness A had met with him when "wired" by the police, and conversations had been recorded, he made no express admissions. He submitted that the contexts of recorded conversations are almost impossible to determine. The admission by the second appellant, which Witness A claimed to have heard: "Nosey, Nosey nobody knows we done it" was not heard by anyone else, nor was it otherwise proved to have occurred. It depended entirely on an acceptance of the evidence of Witness A. The second appellant submitted that the subsequent conversation on 17 November 2002 added little because the important assertion "everybody knows who done it" came from Witness A not him. 4. The second appellant submitted that there were other difficulties with the evidence of Witness A. He had a long history of involvement in criminal activity, including crimes of violence, a background of heavy drug abuse and had served time in prison for offences including manslaughter. He was on parole for that offence as at October 2001. The second appellant submitted that Witness A had a strong motive to lie to the police. 5. The second appellant submitted that on his own evidence and the evidence of the police, Witness A was paranoid, possibly delusional and intentionally untruthful at the time that he made his statement to the police. His bizarre beliefs and behaviour at the time were sufficient to call into question the reliability of any account given by him. The second appellant noted that there was undisputed evidence that at one time police were so concerned for Witness A's mental health that they asked him to see a psychiatrist. The second appellant submitted that Witness A's belief concerning the helicopter, the incident with the golf club, the Jatz biscuits in the pool and other instances made it clear that at the time that he was speaking to the police he had serious mental health issues. The second appellant submitted that the evidence of Witness A, which was not otherwise corroborated, was unreliable. 6. The second appellant submitted that even if one accepted the accuracy of the conversation during the Newtown dinner, the detail was so general and the inconsistencies were such that it would be unsafe to infer that he [the second appellant] knew of the nature and extent of his brother's intentions towards the deceased. 7. The second appellant submitted that Witness A had a strong motive to lie because in providing information to the police he effectively expunged his previous offences and was relocated to a place well away from his enemies and potential enemies. The second appellant submitted that the evidence collected by the listening devices did not assist the Crown case. His alleged admission was not found in the material gathered from the listening devices. The fact that Witness A claimed that he was able to hear the confession in the recording, despite the fact that it was plainly not there, supported the submission as to the unreliability of his evidence. He submitted that Witness A was prepared to go to considerable lengths to implicate him in the conspiracy. 8. The second appellant submitted that for those reasons, the Court would have a reasonable doubt as to his guilt. He submitted that for him to be found guilty of the charge of conspiracy to murder, the Crown was obliged to prove that there was in fact a conspiracy to kill the deceased, that he had joined in the agreement and that he had done some positive act in furtherance of the conspiracy. He submitted that the evidence at trial was incapable of establishing those matters beyond reasonable doubt. Consideration 1. The manner in which this Court should approach its task pursuant to s 6(1) of the Criminal Appeal Act was set out in M, MFA, R v Nguyen [2010] HCA 38; 242 CLR 491 and SKA. When considering whether a verdict was unreasonable, the Court is to make its own independent assessment of the sufficiency and quality of the evidence. The question for the Court is whether, notwithstanding that there is evidence upon which a jury might convict, it would be dangerous in the circumstances to let the verdict of guilty stand. Put another way, the question is whether, upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. 2. In carrying out that task, the Court must not disregard or discount that the jury is the body entrusted with the primary responsibility of determining guilt or the consideration that the jury has had the benefit of having seen and heard the witnesses. As McHugh, Gummow and Kirby JJ observed in MFA at [59] the determination by an appellate court as to the reasonableness of a jury's verdict "involves a function to be performed within a legal system that accords special respect and legitimacy to jury verdicts deciding contested factual questions concerning the guilt of the accused in serious criminal trials". 3. Tortuous reasoning in order to explain every individual circumstance as being consistent with innocence should not be engaged in: R v Micallef [2002] NSWCCA 480; 136 A Crim R 127 (Micallef); Burrell v The Queen [2009] NSWCCA 193 (Burrell) at [55]. Finally, the burden of persuasion that appellate interference is required rests with the party who impugns the verdict: MacKenzie v The Queen [1996] HCA 35; 190 CLR 348 at 370. 4. The thrust of the second appellant's submission on this ground is that Witness A was so unreliable that the verdict against him, which rested mainly on his evidence, was unreasonable. The problem with that submission is that it fails to acknowledge a substantial body of evidence which corroborates Witness A, that the murder of the deceased eventuated in the manner discussed at Newtown by the second appellant and Anthony Perish and the unchallenged evidence of motive adduced against the second appellant. The second appellant's submissions also fail to acknowledge the great advantage which the jury had in seeing and hearing Witness A give his evidence. 5. In Atai v The Queen [2014] NSWCCA 210, R A Hulme J (with whom Basten JA and Schmidt J agreed) said: "134 In considering a ground asserting the unreasonableness of a verdict it is necessary that 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': M v The Queen [1994] HCA 63; 181 CLR 487 at [7]. The assessment of the credibility and reliability of the evidence of Yazin was quintessentially one for a jury to determine and, in the circumstances of this case, difficult for this Court to gainsay." 1. That observation is apposite when considering the position of Witness A in this case. In a case such as this where the second appellant has attacked the credibility of a witness, the Court must be acutely conscious of the advantage of the jury. Witness A came under sustained attack on each of the bases now identified by the second appellant. For each of those allegations, he had a cogent and persuasive response. In many respects, his evidence was independently supported by extrinsic evidence and it was well open to the jury, who observed this sustained cross-examination, to accept his evidence. 2. Moreover, the trial judge gave the jury all the warnings required by law in relation to Witness A's evidence. No complaint was made, nor could be made, about the summing up. Price J warned the jury to scrutinise Witness A's evidence with care and directed them that he was potentially unreliable by reason of having been criminally involved in the matters about which he gave evidence. His Honour reminded the jury of each of the problems now identified by the second appellant which were also raised in each closing address by defence counsel. Support for Witness A's evidence 1. There was undisputed evidence that the second appellant had a motive for conspiring to murder the deceased in that he believed that he had informed on the Rebels Motorcycle Club, of which he was a member, and that he was either involved in or had knowledge of the murder of his grandparents. The second appellant had consulted Inspector Ruse in June 2001 and subsequently concerning the investigation into the murder of his grandparents. Elizabeth Falconer had shown him the police document setting out the deceased's offer of assistance. She also told police that she understood that the second appellant thought the deceased had killed his grandparents. 2. Although the "admission" made by Andrew Perish to Witness A: "Nosey, Nosey, nobody knows we done it" depended upon an acceptance of Witness A's evidence, there were other matters which supported that evidence. 3. Witness A did not know that the listening device had failed and immediately reported to police following the conversation that the second appellant had admitted his involvement. Witness A's evidence on this issue was supported by the later recorded conversation with the second appellant where Witness A said "remember the conversation we had … and you said nobody knows who done it … fucken everybody knows who done it" in that the second appellant did not deny the reference to an earlier conversation but said "yeah" (see above at [61]-[62]). 4. The call charge records support Witness A's evidence. While allowing for the limitations of that evidence, e.g. the outgoing call charge records were available in relation to the second appellant but not the reverse (incoming) call charge records. Witness A's evidence was supported by the pattern of contact between the second appellant and Witness A's phone. On 12 October 2001 Witness A spoke to Marine Scene and shortly afterwards texted the second appellant. The receipt (Exhibit S) from Marine Scene showed that $2000 was paid on that date. This was the amount that the second appellant gave Witness A after the Newtown dinner (see above at [33]). 5. On 28 October 2001 (shortly before the boat was picked up) there were nine contacts (texts and calls) between the second appellant and Witness A. Between 9 October and 29 October 2001 (the day the McDowell phone was activated) the second appellant called or texted Witness A's phones ten times. Once the McDowell phone was activated, there were no calls recorded from the second appellant to Mobile 1 or Mobile 2 until 14 November 2001. 6. The phone records for 31 October and 1 November 2001 corroborate Witness A's evidence about travelling to the Salamander Bay area to check out possible locations to launch the boat. These records show Mobile 1 and Mobile 2 were used in the Salamander Bay area. The call charge records show that Witness A stopped making calls from any of his three phones from 12 November 2001 corroborating his evidence that he withdrew from the conspiracy about a week before the deceased was killed (see above at [34], [36], [53]-[56]). 7. It was the Crown case that by 14 November 2001 the second appellant was desperate to contact Witness A, who had ceased contact with him. It was the Crown case that the second appellant was anxious to contact Witness A because 16 November was the date set for the deceased's abduction and murder. Between 14 and 15 November 2001 the second appellant called Witness A five times. 8. The delivery of the McDowell phone and its subsequent use also support Witness A's evidence. All contact between Witness A and the second appellant between 29 October 2001 and 12 November 2001 occurred using the McDowell phone. The second appellant only sought to contact Witness A on Mobile 1 and Mobile 2 on 14 November 2001 because he could not contact him on the McDowell phone. 9. Witness A gave evidence that on the second last visit by Anthony Perish and Matthew Lawton to his home, Anthony Perish handed him what seemed to be a police document stating that the deceased was prepared to give evidence to the Crime Commission against the Rebels Motorcycle Club in Dubbo. This is consistent with the evidence of Elizabeth Falconer that in March or April 2001 she showed Andrew Perish a document (Exhibit F) which indicated that the deceased was prepared to assist police as an informer against the Rebels Motorcycle Club in Dubbo. That evidence is also given support by Exhibit T where Witness A expressed his concern to the second appellant about "that piece of paper you showed me about Terry Falconer … it's got my prints on it" to which the second appellant replied, "It's gone mate, don't worry". Significantly, the second appellant did not question Witness A about what document he was talking about but appeared to fully understand Witness A's concern. 10. There are documents which also support Witness A's evidence. 1. The boat registration certificate (Exhibit P). 2. The Salamander Shores Hotel receipt, dated 31 October 2001 (Exhibit R). 3. The marked up maps of the river systems (Exhibit Q, see above at [45]). 4. The Marine Scene service repair order and receipt dated 12 October 2001 and 31 October 2001 (Exhibit S). 1. Witness B's evidence of the occasion in 2006 when he received a summons to appear before the NSW Crime Commission in relation to its inquiry into the murder of the deceased, is capable of supporting Witness A. This was the occasion when Witness B met with the second appellant, Anthony Perish and other persons after his appearance at the Commission. He described Anthony saying to the second appellant "this cunt's been talking" and touching his nose. This was at a time when Witness B did not know that Witness A's nickname was "Nosey". It was also of significance that immediately following that comment and gesture, Anthony Perish said to Witness B "and you don't know anything about those police uniforms". An inference was available that Anthony Perish and the second appellant were familiar with how the crime was committed and with their approaches to Witness A about using the boat. 2. Although it is not necessary to go into the detail of the evidence of Witness E, it should be noted that his evidence as to how the murder was carried out and the disposal of the deceased's body was admissible against the second appellant as showing that the object of the conspiracy to murder was achieved in a way very similar to that originally planned by the second appellant. Those matters support the evidence of Witness A as to what he was told about the plan by Anthony Perish in the presence of the second appellant. The reliability of Witness A's evidence 1. All of Witness A's unusual beliefs and behaviour, at the time that he made his statement to the police and was working with them, were put to him in cross-examination. His response was that he was under extreme stress. He had good reason for being so. Not only had he turned Crown witness against both Anthony Perish and the second appellant, but also against the Rebels Motorcycle Club. Despite co-operating with police, he was still extremely distrustful of them because of his belief that they had been involved in the deceased's abduction. 2. The stress and pressures to which Witness A was exposed were vividly described by Inspector Jubelin (see above at [84]). Moreover, Inspector Jubelin formed the opinion that Witness A "saw what he said he saw" but what he took issue with was the interpretation which Witness A gave to those matters (see above at [88]). Witness A had already been threatened and stabbed in gaol because it was believed that he had acted as an informer. 3. An important consideration which the second appellant's submissions did not address was that at the time Witness A gave evidence, there was no indication of mental instability. On the contrary, his evidence was careful and logical. When cross-examined about his mental state, his responses were persuasive. He readily conceded that his interpretation of events may have been somewhat paranoid but said that the underlying events actually occurred. This evidence was supported by both Detective Browne and Inspector Jubelin, who considered that the events which Witness A reported were real, but not necessarily his interpretation of them. 4. While there are some discrepancies between the evidence of Witness A at trial and the contents of the police investigator's notes, the discrepancies are not great and are readily explained by the circumstances in which the investigator's notes were prepared. There were in total some 58 meetings between Witness A and the police. These meetings occurred in cars, car-parks and other discreet locations, often at night. Detective Browne pointed out that it was not possible to take contemporaneous notes of their meetings with Witness A. Sometimes the investigator's notes were reconstructed a day or so after a meeting, relying upon recollection. Importantly, the investigator's notes were not shown to Witness A, nor was he invited to approve or adopt them. Both Detective Browne and Inspector Jubelin accepted that the investigator's notes might not be completely accurate (see above at [87]). Witness A was extensively cross-examined about the asserted discrepancies and the jury was well aware of those matters. 5. Witness A's evidence concerning the Newtown dinner was challenged on the basis that an incorrect date was nominated for the dinner. This challenge was based on the fact that the receipt from Marine Scene was dated 12 October 2001 and on the evidence of Witness A that the receipt was received the day following the dinner. This criticism does not withstand scrutiny. In his evidence, Witness A never proffered a date for the Newtown dinner. Rather, the date of the dinner was inferred by the parties from Witness A's evidence that he put the boat in to be repaired the day after the dinner. Since Witness A said at various times that he could not recall specific dates, it is quite possible that the Newtown dinner occurred a day or so earlier than that inferred from the date of the receipt. More importantly, when Witness A referred to "that dinner", in a recorded conversation with the second appellant on 17 November 2003, the second appellant did not query the reference and clearly understood what Witness A was referring to. Conclusion as to Ground 2 1. In summary, Witness A was cross-examined for four of the five days during which he gave evidence. Much of that cross-examination related to his criminal history and his role as an informer. His criminal history and possible motives to lie were thoroughly canvassed by three very experienced defence counsel. The jury was directed in detailed terms by the trial judge as to Witness A's potential unreliability. The jury was directed by the trial judge that because the Crown case against the second appellant rested principally on the evidence of Witness A, before they could convict the second appellant they must scrutinise Witness A's evidence with care. The trial judge gave a warning to the jury pursuant to s 165(1)(a) of the Act in relation to the evidence of Witness A about the second appellant's admissions. The various shortcomings in Witness A's evidence were repeated in detail to the jury by the trial judge. 2. Bearing in mind the guidance which has been provided in M and SKA, and having particular regard to the position of advantage of the jury in this matter, we are satisfied upon the whole of the evidence that it was open to the jury to be satisfied beyond reasonable doubt that the second appellant was guilty. The second appellant's motive to participate in the conspiracy to kill the deceased was clear. There was ample evidence that the second appellant was present at the Newtown dinner and knew that the plan was to kill the deceased, dismember his body and dispose of it using Witness A's boat. The second appellant participated in the implementation of that plan by channelling money to Witness A to get the boat repaired and at times, acting as a go-between for Anthony Perish. The call charge records show a high level of contact between the second appellant and Witness A which ceased abruptly the day before the deceased was abducted and killed. There is also support for the evidence of Witness A from the matters already referred to. 3. This ground has not been made out and should be dismissed. Ground 1 - That a miscarriage of justice occurred as a result of the appellant being tried together with his co-accused. 1. In order to better understand the submissions in respect of Ground 1, some further factual background needs to be set out. On 14 December 2010 the second appellant applied to be tried separately from the co-accused. The application was heard by Latham J, who handed down judgment refusing the application on 17 December 2010. At the time of the application, the two co-accused had each been charged with murder and only the second appellant had been charged with a count of conspiracy to murder. By the time the matter came to trial, however, the indictment charged conspiracy to murder against all three of the appellants. 2. Orders for the separation of trials are governed by s 21 of the Criminal Procedure Act 1986 (NSW). Relevantly, that section provides: "21 Orders for amendment of indictment, separate trial and postponement of trial … (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. …" 1. The second appellant relied upon the following matters, arising from the joint trial, as giving rise to a miscarriage of justice. The first was the evidence of Witness B of a statement made to him by Anthony Perish many years after the murder that he and the second appellant had killed the deceased. The second appellant submitted that this evidence gave rise to significant prejudice against him, despite directions by the judge that the evidence was inadmissible against him. The second appellant submitted that the prejudice was so great that it could not be appropriately offset by such a direction. 2. The second matter relied upon by the second appellant was that the evidence against him was significantly weaker and different to that admissible against the other two appellants. He submitted that the evidence against his co-accused was of a kind which was so prejudicial that although it was not admissible against him, it gave rise to a real risk that the Crown case against him would be made "immeasurably stronger" because of that prejudicial material. 3. The second appellant supported that second submission by reference to the evidence against him. He submitted that the Crown case against him derived almost exclusively from Witness A and comprised an allegation of the second appellant playing a very small role in the planning of the murder of the deceased. The second appellant submitted that the effect of the evidence of Witness A was that he was no more than a conduit for the passing of money between Anthony Perish and Witness A. He submitted that the only evidence from which an inference could have been drawn that he was aware that the deceased was the intended victim and that he was to be dismembered was Witness A's evidence of what was said at the Newtown restaurant meeting. The second appellant submitted that whether the meeting took place and what was said at the meeting were matters of considerable controversy. 4. The second appellant submitted that his relatively modest role was to be contrasted with that of the co-accused who were charged with kidnapping and murdering the deceased in rather gruesome circumstances. The second appellant submitted that according to the detailed accounts of witnesses involved in the abduction and murder, he had no involvement. The second appellant submitted that in those circumstances, there was a high probability that he would be associated with the horrific details surrounding the abduction and murder by the jury, even though there was no evidence to that effect. 5. The second appellant submitted that he suffered significant prejudice as a result of the joint trial because of the large body of brutal and gruesome evidence against his co-accused in circumstances where much of that evidence might not have been admissible in a separate trial against him. He submitted that added to that prejudice was the admission by Anthony Perish to Witness B that he and the second appellant killed the deceased. The evidence of Witness B was that Anthony Perish expressly referred to the second appellant as included in "we" by using the nickname "Undies" (see above at [112]). 6. The second appellant submitted that this alleged admission by Anthony Perish to Witness B raised two significant issues. The first was that it was made by his brother so that it was likely that the jury would consciously or unconsciously consider it improbable that his brother would implicate him in a murder if he had not in fact been involved. The second appellant submitted that the evidence would also have (again consciously or unconsciously) impacted on the jury's assessment of Witness A's credibility. The second appellant submitted that when assessing Witness A's credibility, it would be unrealistic to assume that none of the jurors would have been consciously or unconsciously influenced by his brother's admission. 7. The second appellant placed considerable weight on the observations of Adams J (with whom Spigelman CJ and RS Hulme J agreed) in R v Pham [2004] NSWCCA 190 (Pham) where his Honour said: "32 It is obvious from what has been set out above that Phong's account was dramatic and memorable and, so far as the relationship between him and his brother, their fear of the deceased, the circumstances in which this arose and the motive for an arrangement to kill the deceased up to the appearance of Lam on the scene were concerned, compelling. Not only did the transcription of the interview become an exhibit, but the jury watched the interview on video and needed carefully to analyse and evaluate what Phong said in connexion with the case against him. Moreover, Phong was not implicating a stranger or mere associate but his own brother. This situation was very different to the cut-throat defence by a co-offender. First, and most significantly, the statements that incriminated the appellant also incriminated Phong and the Crown placed considerable reliance on them to procure Phong's conviction. It was therefore inevitable that, in order to accept these parts of the interview, the jury had to conclude that they were reliable. It was necessary, therefore, that they should disregard that conclusion – which was very much in dispute – when they came to consider the appellant's case. In the cut-throat defence situation, the allegations against the co-accused need only to raise a reasonable doubt to justify acquittal and it is unnecessary – indeed, juries are so directed – to determine that the allegations are truthful. There is a very significant difference between an attempt to entirely disregard prejudicial material that might possibly be true on the one hand and, on the other hand, the attempt to entirely disregard material that has been carefully evaluated after extensive debate and relied on as true as against a co-offender. Secondly, it is obvious that a co-offender has a very strong motive to place responsibility on the other offender and thus a cut-throat defence will inevitably attract significant scepticism. In the present case, however, Phong had no motive for implicating his brother. Indeed, to the contrary. And the fact that he did so gave a considerable persuasive thrust to the Crown's submission to the jury that they would conclude that Phong's incriminating statements were truthful and reliable. In this context, the fact that the appellant was implicated in the offence by his brother gained additional significance. Furthermore, Phong's statement provided significant corroboration of Lam's claim that his presence at the scene was innocent." 1. The second appellant submitted that Pham was relevant not only because of the statement of principle in it, but because of its factual similarity to the circumstances of this case, i.e. the possibility, despite directions to the jury, of an alleged admission by one brother being wrongfully relied upon in the case against another brother. Consideration 1. The second appellant did not in terms challenge the decision of Latham J not to order separate trials and thereby become involved in an argument as to whether her Honour had correctly exercised her discretion in accordance with House v The King [1936] HCA 40; 55 CLR 499 principles. Rather, the burden of his submission was that the result of the joint trial was to give rise to a miscarriage of justice, i.e. that the trial was not fair. Accordingly, what the Court has to do is to look at what happened at trial to assess whether such a miscarriage of justice occurred. 2. It was common ground that the relevant principles were summarised by Allsop P (with whom Hidden and Davies JJ agreed) in Ross v The Queen [2012] NSWCCA 207 at [24]-[26]: "24 The appellant and the mother were jointly charged with a number of the offences. In the ordinary course one would not expect them to be tried separately: R v Demirok [1976] VR 244 at 254; Demirok v R [1977] HCA 21; 137 CLR 20; and see generally R v Fernando [1999] NSWCCA 66 at [199]-[212]. The danger that may exist is by the admission of evidence against one only of the accused. This risk is to be obviated by express and careful directions as to the use of evidence: R v Harbach (1973) 6 SASR 427 at 433. There is a public interest in the avoidance of the risk of inconsistent verdicts, of inconvenience to witnesses, and in ensuring finality is reached as expeditiously as possible by having one trial. The interests of justice in this respect are not limited to those of the accused: Demirok; Webb and Hay v R [1994] HCA 30; 181 CLR 41 at 89. 25 In R v Baartman (NSW Court of Criminal Appeal, Gleeson CJ, Powell JA and Smart J, 6 October 1994, unreported), the Chief Justice accepted as stating the relevant principles what Hunt J had said in R v Middis (Supreme Court of NSW, 27 March 1991, unreported): '1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2. where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial.' 26 There is a balance to be struck between the public interest and any prejudice to the accused, relevant to which assessment is whether there is positive injustice to the accused: R v Dellapatrona (1993) 31 NSWLR 123 at 133." 1. As is apparent from the evidence against the second appellant, referred to in the discussion of Ground 2, it was not of a kind which could be neatly separated from that against the co-accused. This is particularly so in relation to the evidence of Witness E. His evidence was admissible against the second appellant on the basis that the carrying out of the abduction of the deceased and subsequent dismemberment of his body, was in accordance with the plan described by Anthony Perish to Witness A in the presence of the second appellant. The effect of that evidence could not be realistically dealt with by a statement of agreed facts or some similar technique. This was particularly so since much of what Witness E said was challenged by the co-accused. 2. It is also not correct to say that the evidence of the actual dismemberment of the deceased's body was so gruesome as to unfairly give rise to irreversible prejudice against the second appellant. Such a submission fails to have regard to the evidence that at the Newtown dinner the dismemberment of the deceased's body was specifically raised by Anthony Perish in the presence of the second appellant without any demur from him. On the contrary, the second appellant thereafter was actively engaged in assisting Witness A to repair the boat so as to implement the final phase of the dismemberment process, i.e. the disposal of the body. That fact, unpleasant as it is, formed an important part of the Crown case against the second appellant. 3. If a separate trial of the second appellant had taken place, not only would there have been a risk of inconsistent verdicts, inconvenience to witnesses and of substantial delay, there was a real risk that if most of the evidence actually led at trial was not adduced against the second appellant, the context in which his participation occurred would have been substantially distorted. This would also have been so if an attempt had been made to rely upon agreed facts. In the circumstances of this trial where so much of the evidence depended upon persons such as Witness A and E whose evidence was controversial, it is unrealistic to suggest that an agreed statement of facts could be formulated which would adequately inform the jury of the context in which these events occurred. 4. It is also not without significance that senior counsel for the second appellant, who appeared before Latham J in the separate trial application, accepted and conceded that had the conspiracy to murder charge been brought against all three co-accused, he would not have brought a separate trial application. While that, of course, is not conclusive, it gives weight to the proposition that once that charge was brought against all of the appellants, it was necessary to establish the full background and context in which the conspiracy was entered into. 5. The outcome and statements in Pham provide little assistance for the second appellant. In Pham the part played by the evidence of his brother Phong, was pivotal. It was described as "dramatic and memorable". In that case, the jury were not only provided with a transcript but also watched the interview on video. The statement of Phong had to be carefully examined by the jury so that they could determine which parts were reliable and which were not. As was pointed out in the passage cited from that case in the second appellant's submissions, the task required of the jury was an impossible one if a joint trial were to take place. On the one hand they were required to carefully assess the Phong statement, but then entirely disregard it when considering the actions of Pham. 6. What occurred in this case was very different. The evidence of Witness B to which the second appellant has referred comprised a very small part of the evidence in the trial. It was readily severable, not only from the other evidence at trial but from most of the evidence given by Witness B, particularly when that evidence was directed entirely at Anthony Perish, with this being the only reference to the second appellant. This was clearly a circumstance in which a direction from the trial judge that the evidence could not be used against the second appellant would be easily understood by the jury and easily implemented by them. 7. It is not accurate to characterise the part played by the second appellant in the conspiracy as that of a mere "conduit". His role in preparing for the disposal of the deceased was important. He arranged the meeting between Anthony Perish and Witness A, he was present when Anthony Perish outlined the plan and he was active in providing funds to enable the boat to be brought to a state whereby the plan to dispose of the deceased's body beyond the continental shelf could be implemented. The funds which he expended for that purpose were substantial. The high level of communication by phone and text between him and Witness A is confirmatory of the second appellant's substantial involvement in the conspiracy, especially in relation to that part which concerned the disposal of the deceased's body. It is true that the second appellant played no direct role in the eventual abduction, death and disposal of the deceased. That situation only arose because the plan to use the boat was no longer viable after the withdrawal of Witness A. This significant role of the second appellant was another reason why it was important for the jury to have before them evidence of the factual matrix in which these events were taking place. 8. As to the efficacy of directions given by the trial judge in respect of the evidence of Witness B, there was no suggestion at trial that the jury would not comply with judicial directions, particularly a simple direction as was given here, that a small piece of evidence not be used against the second appellant. That direction was given in circumstances where there was no attempt by the Crown to rely upon such evidence against the second appellant. It is a fundamental assumption that juries will act in accordance with directions: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31]-[32]. This is particularly so where, as happened here, the jury was given the direction at the time the evidence was adduced and was twice reminded in the summing up that the admission was not available against the second appellant. 9. There was a clear public interest in avoiding the risk of inconsistent verdicts, inconsistent credit findings, inconvenience to witnesses and in ensuring that finality of the litigation was reached as expeditiously as possible by having one trial. Much of the evidence at trial was common to all three appellants and they all stood trial for the same conspiracy. Careful and clear directions were given to the jury about the manner in which they should approach the evidence, particularly that of Witness B. Given the narrow compass of that evidence, any potential prejudice to the second appellant was capable of remedy by the careful directions given by the trial judge. It follows that the second appellant has failed to demonstrate that a miscarriage of justice has occurred as a result of the joint trial. This ground has not been made out and should be dismissed. Ground 4 – The sentence imposed upon the second appellant was manifestly excessive. Remarks on sentence 1. His Honour found that in accordance with the verdicts of the jury, all three offenders entered into an agreement to kill the deceased and that each of them participated in that agreement. His Honour identified Anthony Perish as the mastermind behind the plan to abduct the deceased, kill him and dismember his body and to dispose of his remains. 2. In relation to the second appellant, he said: "63 Andrew Perish was present at the Newtown Dinner and knew that the plan was to kill Mr Falconer, dissect his body and [A] was to be used to dispose of the remains. He assisted his brother in recruiting A, paid for the repairs to his boat and authorised him to proceed with further repair work to the vessel which Andrew Perish paid for. Andrew Perish with his brother, Anthony, were the only persons that A was to contact on the McDowell phone. He endeavoured unsuccessfully to ring A on 14 and 15 November 2001. There is no evidence that Andrew Perish played any part in the procurement of E or that he knew E was to abduct the deceased. His role was confined to A. The Crown has not established beyond reasonable doubt that Andrew Perish played any part in the agreement to kill Mr Falconer after 15 November 2001. His culpability for the conspiracy to murder is less than that of Anthony Perish." 1. His Honour accepted that the second appellant agreed to kill the deceased for the principal reasons that he believed he was involved in the murder of his grandparents and had become frustrated with the lack of progress in the police investigation. His Honour found that although this might explain the agreement to kill the deceased, it did not mitigate the objective seriousness of the offence. His Honour observed that a civilised society could not condone the second appellant's conduct: "67 … It is well established that resort to criminal conduct as a response to a crime believed to have been committed by the victim is to be severely discouraged. In our society crime must be investigated by police and dealt with by the courts: Barlow v R [2008] NSWCCA 96; R v Mitchell [2007] NSWCCA 296. The existence of such a motive remains relevant, however, to questions of personal deterrence and protection of the community." 1. His Honour reviewed the second appellant's subjective case as follows: 2. The second appellant was born in January 1971, was aged 30 at the time of his offending and 41 at the time of sentence. He had a criminal record. In September 1994 he was convicted of conspiracy to manufacture a commercial quantity of a prohibited drug. In 2007 he was convicted of stalking with intention to cause fear. In March 2009 he was imprisoned for manufacturing a commercial quantity of a prohibited drug and possession of an unauthorised pistol. In December 2011 he was convicted of attempting on 9 June 2010 to wilfully dissuade Witness A from giving truthful evidence against him in committal proceedings. His Honour concluded that the second appellant's criminal history did not entitle him to leniency, but it was not such as would amount to a matter of aggravation. 3. The second appellant did not give evidence during the trial or upon sentence. There was tendered on his behalf a psychologist's report from Mr W John Taylor, dated 9 March 2012. This provided some details of his personal history. 4. He was one of five children and was raised on the family poultry farm at Leppington. He left school at the age of 17 after completing the Higher School Certificate. He completed a plumbing course at TAFE and obtained a certificate for the safe handling of chemicals. He worked for the Department of Works as a plumber for four years, then as a plumbing sub-contractor and eventually commenced his own business, contracting to farmers. That job involved using a Bobcat, slashing grass and other services. He also ran a beef feedlot and supplied butcher shops for some seven or eight years. These activities ceased when he went to prison in 2007. He was a long-time member of the Rebels Motorcycle Club. 5. Mr Taylor recounted that the second appellant experienced a great deal of grief and trauma following his grandparents' murder. His consumption of alcohol increased and he began abusing drugs, such as speed, ecstasy and cocaine. While in prison the second appellant undertook counselling and had completed the "Enough is Enough" program. Mr Taylor was of the opinion that the second appellant had a low to moderate risk of recidivism and good prospects for rehabilitation. 6. His Honour noted that consistent with his plea of not guilty, the second appellant had neither expressed nor shown contrition for the offence and no allowance could be made for those factors in mitigation. His Honour also noted that the second appellant had not accepted responsibility for his actions and accordingly, his prospects of rehabilitation remain guarded. His Honour disagreed with the assessment of Mr Taylor that the second appellant was unlikely to re-offend or had good prospects of rehabilitation. Nevertheless, his Honour found that the motive of avenging his grandparents lessened the need for personal deterrence and protection of the community. 7. His Honour took into account that he was required to sentence the second appellant in accordance with sentencing practice in 2001. His Honour determined to commence the second appellant's sentence on 4 October 2010, being the date on which the non-parole period expired for a sentence which he was then serving. In the absence of any submissions as to the existence of special circumstances, the sentence imposed by his Honour was that to which reference has already been made, imprisonment for 12 years with a non-parole period of 9 years. The maximum penalty for the offence was imprisonment for 25 years. 8. The second appellant's submission was that having regard to the minimal role which he played in the conspiracy, his motive and other favourable subjective circumstances, the sentence imposed by his Honour was simply too long. Consideration 1. His Honour did not in terms assess the objective seriousness of the offending. It is clear, however, from the effect of his Honour's remarks, that he regarded this as a serious example of offending. His Honour specifically noted that an agreement to kill "is a most serious crime" and that the second appellant, along with his co-offenders, took steps directed at its successful completion. His Honour specifically found that the second appellant was present at the Newtown dinner, was aware of the plan to kill the deceased and dispose of his remains and that the second appellant specifically recruited Witness A for that purpose. He took positive steps to promote the conspiracy by arranging for the repair of the boat and by regularly communicating with Witness A. His Honour also noted that vigilante behaviour was to be severely discouraged. 2. His Honour comprehensively reviewed the second appellant's subjective case, keeping in mind that the second appellant did not give evidence. He had been continuously employed since leaving school until he commenced his first sentence of imprisonment in 2007. There were no psychological problems, although he had a history of alcohol, ecstasy and cocaine abuse. The absence of any remorse and poor prospects of rehabilitation were important considerations. Although his Honour did not specifically refer to this in the context of the second appellant, general deterrence was an important consideration in this sentencing exercise. The effect of his Honour's analysis was that the second appellant's subjective case was not particularly strong. Apart from the motive it did little to mitigate the seriousness of the offending. 3. To make good this ground of appeal, the second appellant was obliged to satisfy the Court that the sentence was manifestly excessive in the well-recognised sense that it was unreasonable and plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370; Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8]-[9]. It is not sufficient that this Court be of the view that had it been sentencing the second appellant, it might have exercised its discretion differently to that of the sentencing judge. Intervention is warranted only where error is demonstrated in accordance with the principles in House v The King. 4. The fact that the second appellant did not play an active part in the murder does not reduce his culpability for this offence. Had he taken a more active role, he may well have been charged with the more serious offence. In any event, the cessation of his participation in the conspiracy was due to the withdrawal of Witness A, not because of any change of heart on his part. The call charge records suggest that the second appellant was still actively pursuing Witness A to participate in the conspiracy until the day before the murder. 5. As has been stated elsewhere, contrary to the second appellant's submissions, his role in the conspiracy was not minimal. He actively recruited Witness A and helped him organise the repairs to the boat which was to be used to dispose of the deceased's remains. The payments of money occurred over a number of weeks and were substantial in amount. It was the second appellant's intention that Witness A play an important role in the murder, i.e. disposing of the body in such a way that had the plan proceeded to fruition, the crime might never have been discovered. The second appellant was a committed and knowing participant in the conspiracy to murder, right up until the day before the killing. 6. When the lengthy and complex planning to which the second appellant was a party is taken into account, including his knowledge of the ultimate fate that faced the deceased, a sentence of 12 years with a non-parole period of 9 years imposed after trial cannot be considered as plainly unreasonable or unjust. This ground of appeal has not been made out. Conclusion 1. The orders which we propose are as follows: 1. In relation to Grounds 1 and 2 challenging the conviction, we would grant leave to appeal but dismiss the appeal. 2. In relation to Ground 4 in respect of sentence, we would grant leave to appeal but dismiss the appeal. Mr Matthew Lawton – Conviction appeal 1. Grounds 5 and 6 of the amended grounds of appeal filed on behalf of Matthew Lawton (who in this section of the judgment, and again for convenience, we will call the third appellant) were abandoned. The remaining four grounds are in the following terms: "1. …that the jury's verdicts were unreasonable; 2. That a miscarriage of justice arose in circumstances where his Honour directed the jury that the co-accused, Anthony Perish, had offered to plead guilty to the offence of manslaughter, notwithstanding that there was no evidence before the jury of such a plea; and in any event, such a plea was inadmissible in relation to the [third] appellant; 3. His Honour erred in admitting Exhibit AA in circumstances where the prerequisites set out in s 106(1)(a) Evidence Act 1995 had not been satisfied; 4. His Honour erred in directing the jury that it could take into account, as evidence of the [third] appellant's participation in the charged conspiracy, matters which were in no way probative of the [third] appellant's participation in the conspiracy." 1. Counsel for the third appellant expressly acknowledged that grounds 2, 3 and 4 required leave pursuant to rule 4, the matters raised by those grounds not having been raised at trial. Ground 1 The third appellant's submissions 1. Counsel for the third appellant submitted that there was "no convincing evidence" upon which it was open to the jury to conclude that the third appellant: 1. was a participant in any enterprise to kidnap the deceased; or 2. did any act with an intention to kill or with reckless indifference to human life. 1. In terms of conclusions which were open to be reached from the evidence of Witness A and Witness E, counsel for the third appellant submitted that the position of the third appellant was "different" from that of his co-accused. He submitted that it was necessary, when analysing the evidence, to pay close attention to what had occurred prior to the arrival of the deceased at Turramurra, and, in particular, to the conduct of the third appellant during that period. 2. Counsel for the third appellant submitted that the evidence of events prior to the arrival of the deceased at Turramurra fell short of being sufficient to support a conclusion that the third appellant had any knowledge of what was to take place. It was submitted that the evidence demonstrated that the purpose of those meetings at which the third appellant had attended with Anthony Perish and Witness A was kept hidden from the third appellant. Counsel submitted, in particular, that in the case of each of the meetings which had taken place between Anthony Perish and Witness A, and at which the third appellant was present, it was plain that the third appellant was specifically excluded from any discussion which had taken place. 3. In respect of the evidence of Witness E regarding the painting of the wheels on the vehicle used to kidnap the deceased, counsel for the third appellant submitted that there was no evidence which was capable of establishing any knowledge on the part of the third appellant of the reason(s) why that was being done, nor was there any evidence which established that the third appellant knew of the use to which the vehicle was intended to be put. 4. Although counsel for the third appellant attacked the credibility of Witness A, he made it clear in oral submissions that his position in respect of Ground 1 did not depend upon a conclusion being reached that Witness A could not be believed. In this respect, counsel for the third appellant again reiterated the importance of the evidence of the conversations which had taken place between Anthony Perish and Witness A from which, it was said, the third appellant had been excluded. It was submitted in this regard that if the third appellant had truly been a participant in the enterprise alleged by the Crown, there would have been no need for him to be excluded at all. It was submitted in all of these circumstances that the verdict reached by the jury was unreasonable. The Crown submissions 1. Senior counsel for the Crown drew particular attention to the evidence of Witness A that the third appellant: 1. was present during the discussion between Anthony Perish and Witness A about the progress of repairs to the boat; 2. was present when Anthony Perish handed Witness A the document relating to assistance provided by the deceased to the police; and 3. had driven Anthony Perish on every relevant occasion. 1. The Crown submitted that this evidence was entirely inconsistent with the submission advanced on behalf of the third appellant. The Crown submitted that the approach to analysing the evidence which had been adopted by counsel for the third appellant failed to have regard to the totality of the evidence in the Crown case which, it was submitted, supported the jury's verdict. In this regard, senior counsel for the Crown emphasised the evidence of the third appellant's involvement before the arrival of the deceased at Turramurra which, it was submitted, supported the conclusion that the third appellant was a part of the conspiracy alleged by the Crown. Consideration 1. We have set out above at [327] and [350]-[352] the principles governing the setting aside, by an appellate court, of the verdict of a jury. 2. The Crown case against the third appellant was circumstantial. As such, the evidence must not be analysed in a piecemeal way. The whole of the evidence, and the inferences which are available to be drawn from it, must be considered and weighed: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [46]. 3. To some extent, the approach taken by counsel for the third appellant in both written and oral submissions involved concentrating upon specific circumstances relied upon by the Crown and then seeking to advance, in response, an innocent explanation in relation to each of them. The emphasis placed by counsel for the third appellant upon the meetings between the first appellant and Witness A, at which the third appellant was said to have been excluded from discussions, exemplified that approach. 4. An approach to the assessment of a circumstantial case which concentrates upon certain parts of the evidence to the exclusion of others is erroneous: Gilham v The Queen [2012] NSWCCA 131; 224 A Crim R 22 at [466] citing Micallef at [42] and Burrell at [55]. Moreover, the adoption of that approach in the present case resulted in other evidence being overlooked which, contrary to the submissions of counsel for the third appellant, supported a conclusion the third appellant was indeed present when important discussions about matters relating to the kidnapping of the deceased took place. 5. There was, in our view, evidence of a number of circumstances which, when considered together, supports the conclusions reached by the jury. 6. First, the third appellant delivered the phone to the premises of Witness A. This occurred only a few days following the meeting at the Newtown restaurant between Witness A and Anthony Perish. 7. Secondly, when delivering the phone the third appellant made it clear to Witness A that he was delivering it on behalf of Anthony Perish. 8. Thirdly, the third appellant also made it clear that the phone was to be used solely for the purposes of contact between Witness A and Anthony Perish. 9. Fourthly, between six and ten days after the boat was taken for repairs, Anthony Perish and the third appellant visited Witness A to check on the progress of such repairs. On that occasion the third appellant was driving the same vehicle has he had been driving when he delivered the phone to Witness A. On that occasion, contrary to the submissions made on his behalf, the third appellant was present during the discussion between Witness A and Anthony Perish regarding the repairs. 10. Fifthly, there was a further visit by Anthony Perish and third appellant to Witness A, at which time a document regarding the preparedness of the deceased to assist police was handed to Witness A. 11. Sixthly, there was a further visit by Anthony Perish and the third appellant to Witness A at which there was discussion about readiness of the boat. The evidence was that the discussion which had taken place between Anthony Perish and Witness A on that occasion, in which Anthony Perish had said to Witness A "This cunt's going on Friday regardless", was conducted in circumstances where they had separated from the third appellant. 12. Seventhly, the third appellant sourced and painted the wheels that were placed on the vehicle of Witness E which was used to kidnap the deceased. Those steps were obviously taken for the purpose of disguising the vehicle. There was, in these circumstances, an available inference that the third appellant knew of that purpose. 13. Eighthly, the third appellant was present at Turramurra when Witness E arrived with the body of the deceased. 14. Ninthly, in accordance with a direction from Anthony Perish, and in possession of a gun, the third appellant drove to Girvan, that being the location to which the deceased's body was taken. 15. Tenthly, upon arrival at Girvan, and at the third appellant's direction, the third appellant and Witness E waited for Anthony Perish. The third appellant's attendance at Girvan was corroborated by fingerprint evidence. 16. Finally, following the arrival of Anthony Perish at Girvan, the third appellant: 1. assisted in taking the box containing the deceased's body into a shed; 2. assisted in removing the deceased's body from the box; and 3. participated in dismembering it. 1. Contrary to the tenor of the submissions advanced by counsel for the third appellant, the evidence of the third appellant's involvement in the enterprise was not confined to matters occurring after the death of the deceased. As outlined above, he was responsible for sourcing and painting the wheels fitted to Witness E's vehicle, delivering a telephone to Witness A and directing him as to the purpose for which it was to be used. He was also present at two meetings between Anthony Perish and Witness A. Although there was discussion at the third of those meetings to which the third appellant was not privy, this was not the case with the first two, at each of which he was present when matters germane to the conspiracy were discussed. 2. In our view, on the whole of the evidence, it was open to the jury to conclude that the Crown case against the third appellant was established beyond reasonable doubt. It follows that this ground is not made out. Ground 2 The directions of the trial judge 1. Anthony Perish, when arraigned, pleaded not guilty to murder but guilty to manslaughter. The Crown rejected that plea. 2. In the course of his directions to the jury the trial judge said: "The Crown must prove; (1) that Anthony Perish procured [Witness E] to kidnap Terrence Falconer, and (2) that [the third appellant] was party to the joint criminal enterprise to kidnap Terrence Falconer, and (3) that [Witness E] kidnapped Terrence Falconer, and (4) Terrence Falconer was taken to … Turramurra in a metal box, and (5) Terrence Falconer was taken to … Girvan in a metal box, and (6) that one or more of those act were accompanied by an intention to kill on the part of [the third appellant] or were done with reckless indifference to human life. You will see that the second essential element the Crown must establish beyond reasonable doubt is that [the third appellant] was a party to a joint criminal enterprise to kidnap Mr Falconer. We will now consider what is meant by a joint criminal enterprise. You see that is referred to on page 3 of the summing-up document – Joint Criminal Enterprise. Anthony Perish accepts by his plea of guilty to manslaughter that he participated in the joint criminal enterprise to kidnap Terrence Falconer. The Crown alleges that [the third appellant] was participating in the joint criminal enterprise to kidnap Terrence Falconer in that he assisted in the advanced stages of the exercise by obtaining steel wheel rims and spray painting them silver in order that [Witness E's] motor vehicle would resemble a police vehicle [the third appellant] stood ready to assist upon Terrence Falconer arriving in captivity in Turramurra and drove Terrence Falconer north to Girvan. The law is that where two or more persons carry out a joint criminal enterprise each is responsible for the act of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by [the third appellant]" The third appellant's submissions 1. The third appellant submitted that the directions of the trial judge in the passages above "entirely relieved" the jury of the need to consider whether, in the light of Anthony Perish's plea of guilty to manslaughter, the joint criminal enterprise to kidnap the deceased existed. It was submitted that far from directing the jury to disregard the plea which had been entered, the trial judge had effectively directed the jury that the plea could properly be taken into account in assessing the case against the third appellant. 2. In advancing these submissions, counsel for the third appellant conceded that the third appellant had been represented at trial by experienced senior counsel who had taken no issue with the directions of the trial judge. Counsel for the third appellant accepted that in these circumstances rule 4 applied. However, he submitted that there had been a miscarriage of justice because the directions given by the trial judge had resulted in the jury not properly considering the evidence of Witness A and Witness E, and that leave should therefore be granted. The Crown submissions 1. The Crown pointed to the fact that following the direction about which the third appellant now complained, the trial judge had also directed the jury in the following terms: "…In order for [the third appellant] to have participated in the agreement to kidnap Mr Falconer, the Crown must prove beyond reasonable doubt that he knew that the objective of the agreement was to kidnap Mr Falconer and must have intended that objective to be carried into effect. The Crown invites you to find from the circumstances that he assisted in the advanced stages of the enterprise by obtaining steel wheel rims and spray painting them silver in order that the motor vehicle would resemble a police vehicle and that he stood ready upon Mr Falconer arriving in captivity at Turramurra, then driving him to Girvan, that [the third appellant] was a participant in the agreement to kidnap the deceased." 1. The Crown submitted that, when read as a whole and in its proper context, the summing-up of the trial judge did not lend itself to the construction urged by counsel for the third appellant. 2. It was submitted that the effect of the reference, by the trial judge, to the fact that Anthony Perish did not challenge his participation in the joint criminal enterprise simply highlighted the fact that no similar admission was ever made by the third appellant and that accordingly, it was an issue which had to be addressed and determined when considering the case against him. 3. The Crown also pointed to the fact that the trial judge carefully directed the jury of the requirement to consider the case against each of the appellants separately. The Crown further submitted that the trial judge did not suggest, at any stage, that the plea of guilty by Anthony Perish could be used either: 1. as evidence of any of the matters which the jury were required to find established beyond reasonable doubt before finding the third appellant guilty; or 2. in substitution for such evidence. 1. Finally, the Crown submitted that in circumstances where experienced senior counsel appearing at trial did not take issue with the matter, this should be viewed as a case where no re-direction was sought because there was no error and that accordingly, leave should be refused. Consideration 1. A fair reading of the passage of the summing up which is relied upon by the third appellant does not support the complaint raised by this ground. Contrary to counsel for the third appellant's submissions, the trial judge did not even remotely suggest to the jury that Anthony Perish's plea could be considered in determining the case against the third appellant. On the contrary, the trial judge went to some lengths to remind the jury that in determining the case against the third appellant it was necessary to consider: 1. the existence of the joint criminal enterprise; and 2. the third appellant's participation in it. 1. In directing the jury as to the second of those matters, the trial judge did not suggest that the evidence that the jury were entitled to consider included Anthony Perish's plea. On the contrary, he made specific reference to some of those matters relied upon by the Crown in determining the case against the third appellant. He had previously exhaustively set out those matters. Those matters did not include the fact of Anthony Perish's plea of guilty to manslaughter. 2. Moreover, trial judge made it clear to the jury that it was imperative that the cases of each appellant be considered separately, by reference only to the evidence properly admissible against that particular appellant. The trial judge had previously reminded the jury of this necessity. In all of these circumstances the submission by counsel for the third appellant that the trial judge's directions had the effect of "relieving" the jury of the need to consider where a joint criminal enterprise existed simply cannot be accepted. 3. Further, in order to establish that the third appellant lost a fair chance of acquittal as a result of the matters relied upon in support of this ground, it would be incumbent upon him to establish that notwithstanding Anthony Perish's admission that he was a party to the deceased's kidnapping, there was a reasonable doubt that this was the case. Counsel for the third appellant before this Court expressly acknowledged that it was never seriously in issue that Anthony Perish was involved in the deceased's kidnapping. 4. Finally, the complaint which is now made was not raised by experienced senior counsel who appeared for the third appellant at trial. That is perfectly understandable, as there was no error. 5. Leave in respect of this ground should be refused. Ground 3 Background 1. In considering this ground it is necessary to set out the background which resulted in the tender of Ex AA. 2. Prior to giving evidence before the jury, Witness E was called on the voir dire. Having been asked questions about his sentence and his undertaking to give evidence, Witness E was asked about his participation in a record of interview with police following his arrest and the contents of that interview. He gave a series of answers to questions put by the Crown, which were generally unfavourable to the Crown case. When cross-examined on the voir dire he claimed that his memory of relevant events was adversely affected by, inter alia, the time that he had spent in custody. 3. Following the conclusion of the voir dire, the Crown made an application to cross examine Witness E pursuant to s 38 of the Act. The trial judge concluded that it was appropriate to determine any application under s 38 once any evidence in chief had been led before the jury. At that time, the Crown Prosecutor informed the trial judge that Witness E had indicated that he did not wish to speak with him. 4. Witness E was then recalled on the voir dire at which time the trial judge reminded him of the importance, when giving evidence before the jury, of answering only the particular question that he was asked. The trial judge also made Witness E aware of the fact that it was open to him to object to answering any question on the grounds that it may tend to prove that he had committed an offence with which he had not been charged. 5. On the following day Witness E's treating medical practitioner, Dr Etties, was called to give evidence. Having produced the records of medical treatment administered to Witness E, Dr Etties confirmed that Witness E was not under any medication at the time, but was to undergo a treatment regime for cancer. 6. Following Dr Etties' evidence the Crown Prosecutor informed the trial judge that Witness E had refused to see him for the purposes of a conference, and had asked to be given some time to "look over some documents" before being called to give evidence before the jury. 7. Witness E was then called to give evidence before the jury. Having been taken through the details of the sentences which were imposed upon him, the Crown commenced to ask him about his association with Anthony Perish and, in particular, whether Anthony Perish had spoken to him about "anything to do with his grandparents". He was then asked a number of further questions, the answers to which were generally unfavourable to the Crown. These answers culminated in the Crown making an application under s 38 of the Act. 8. Over the ensuing days, an agreement was reached between all counsel that an edited copy of the interview between Witness E and the police would be tendered. The trial judge then formulated a direction for the jury, with which all parties agreed, regarding the Crown's cross-examination of Witness E on the contents of the interview. 9. Witness E was then recalled by the Crown. The trial judge confirmed a grant of leave to the Crown under s 38 "to cross-examine on the matters in the edited transcript". The edited interview with Witness E was then admitted without objection. It became Ex AA and was played to the jury. 10. Witness E was then asked questions based upon what he had told the police during that interview. The third appellant's submissions 1. Counsel for the third appellant submitted that there was no proper basis for the tender of Ex AA. In particular, it was submitted that Ex AA was not admissible because: 1. it was plainly hearsay; 2. it was therefore not admissible to prove the truth of its contents, unless it was admissible for some other purpose; 3. the only basis on which it was admissible was that it constituted credibility evidence; 4. because of the credibility rule in s 102 of the Act, it was not admissible unless it fell within one of the exceptions to that rule; 5. the only possible relevant exception was that contained in s 106 of the Act; and 6. the pre-requisites contained in s 106(1)(a) of the Act, namely that: 1. the substance of the evidence be put to the witness; and 2. the witness deny, or not admit or agree to, the substance of the evidence were not satisfied 1. In developing these submissions, counsel for the third appellant argued that at no stage did the Crown Prosecutor seek to put the substance of Ex AA to Witness E before tendering it. It was submitted that as a consequence, Witness E was not given the opportunity to admit or deny what had been recorded and that accordingly, the exception set out in s 106 was not available to exclude the operation of the credibility rule, and that accordingly, the evidence was not admissible. Again, in making these submissions counsel for the third appellant accepted that r 4 applied. The Crown submissions 1. The Crown submitted that in light of the circumstances which led to the tender of Ex AA there had been adequate compliance with s 106(1)(a) of the Act. It was submitted that by the time Ex AA was played, the jury were necessarily aware of the extent of Witness E's recollection of events and that after Ex AA had been played, Witness E had been given the opportunity to admit, deny or agree to the substance of the evidence, but had continued to maintain that he had no recollection of relevant events. 2. The Crown further submitted that in any event, Ex AA was properly admissible under s 103 of the Act which governs cross-examination as to credibility. It was submitted that the provisions of that section were attracted in light of the fact that Ex AA was adduced in cross examination of Witness E pursuant to a grant of leave under s 38 of the Act. Consideration 1. Section 102 of the Act is in the following terms: 102 The credibility rule Credibility evidence about a witness is not admissible. 1. Section 106 of the Act creates an exception to the credibility rule and is in the following terms: 106 Exception: rebutting denials by other evidence (1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if: (a) in cross-examination of the witness: (i) the substance of the evidence was put to the witness, and (ii) the witness denied, or did not admit or agree to, the substance of the evidence, and (b) the court gives leave to adduce the evidence. (2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness: (a) is biased or has a motive for being untruthful, or (b) has been convicted of an offence, including an offence against the law of a foreign country, or (c) has made a prior inconsistent statement, or (d) is, or was, unable to be aware of matters to which his or her evidence relates, or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth. 1. Before this Court, both the Crown and counsel for the third appellant accepted that Ex AA was "credibility evidence". Section 102 of the Act provides that such evidence is "not admissible". Sections 103 to 108 of the Act create a number of exceptions to the application of the credibility rule. 2. Counsel for the third appellant submitted that the line of reasoning in the authorities set out above at [261]-[270] should no longer be followed. For the reasons already expressed we do not accept that submission. Given that Ex AA was admitted without objection, it was admissible irrespective of the provisions of s 106. 3. Counsel for the third appellant specifically submitted that the line of reasoning in such authorities should not be followed in light of s 190 of the Act which is in the following terms: 190 Waiver of rules of evidence (1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of: (a) Division 3, 4 or 5 of Part 2.1, or (b) Part 2.2 or 2.3, or (c) Parts 3.2-3.8, in relation to particular evidence or generally. (2) In a criminal proceeding, a defendant's consent is not effective for the purposes of subsection (1) unless: (a) the defendant has been advised to do so by his or her Australian legal practitioner or legal counsel, or (b) the court is satisfied that the defendant understands the consequences of giving the consent. (3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if: (a) the matter to which the evidence relates is not genuinely in dispute, or (b) the application of those provisions would cause or involve unnecessary expense or delay. (4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account: (a) the importance of the evidence in the proceeding, and (b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding, and (c) the probative value of the evidence, and (d) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence. 1. It was submitted that the authorities in [261]-[270] ignored the provisions of s 190 and that, in particular, if the absence of objection was sufficient to exclude (in the context of the present case) the operation of the credibility rule, s 190 would have no practical work to do. 2. That submission is contrary to authority. In WC, Meagher JA (with whom Simpson and Wilson JJ agreed) rejected such a proposition at [24]-[25]: "[24] It was submitted that by not rejecting the record of S's evidence as excluded by the hearsay rule the trial judge was to be taken to have dispensed with the application of s 59 in Pt 3.2 in relation to that evidence in circumstances where WC's consent to the making of such an order was not effective because neither of the conditions in subs 190(2)(a) and (b) was satisfied. [25] This argument must be rejected simply because in admitting the relevant evidence the trial judge made no order under subs 190(1). Nor was it necessary for him to do so. The hearsay evidence was not admissible over objection and no objection was taken. It was not necessary to dispense with the application of s 59 in order to admit the evidence." 1. Quite apart from the fact that Ex AA was admissible in the absence of objection, and on a fair reading of what transpired prior to the admission of Ex AA, there was compliance with the provisions of s 106 of the Act in any event. Prior to the admission of Ex AA, Witness E had effectively refused to acknowledge what he had said to the police when previously interviewed. 2. Section 106 does not require the adoption of a mechanistic approach, in which each and every proposition contained in the evidence in question is put to the witness. It requires only that the substance of the evidence be put. In the circumstances of the present case, that requirement was met. 3. For all of these reasons, leave should be refused in respect of this ground. Ground 4 The directions of the trial judge 1. Central to this ground is the following direction given by the trial judge: "The evidence of Witness A of being given money by Andrew Perish and the discussions with Andrew Perish about the repairs to the boat is available for you to consider in the cases of each of the accused, even though Anthony Perish and [the third appellant] may not have been present when the acts were done or the statements made, not only as establishing the existence and nature of the alleged conspiracy but if they were done or made in furtherance of the alleged conspiracy as establishing the participation of each of the accused in it." The third appellant's submissions 1. In advancing this ground, counsel for the third appellant acknowledged that much of the evidence led against the third appellant was admissible to prove the nature and scope of the alleged conspiracy, even if the evidence touched upon acts which did not specifically involve the third appellant. 2. However, counsel for the third appellant submitted that the trial judge had erred in directing the jury that they were entitled to take into account acts of one of the co-accused which were entirely unconnected with the third appellant. 3. It was submitted that the vice in the trial judge's direction set out above at [482] was that it invited the jury to conclude, on the basis of acts with which he was entirely unconnected, that the third appellant had participated in the conspiracy. It was submitted that the effect of the trial judge's direction was to permit the jury to conclude that the third appellant was a participant in the conspiracy, in the absence of any evidence of his participation. Counsel submitted that these circumstances led to a miscarriage of justice, such that leave should be granted under r 4. The Crown submissions 1. The Crown submitted that the approach to this ground adopted by counsel for the third appellant overlooked other directions given by the trial judge, in which the jury had been specifically directed as to, inter alia, the elements of conspiracy to murder. It was submitted that when the summing up was read as a whole, there was no risk that the jury would have used the evidence of the conversation between Witness A and Anthony Perish as evidence of the participation, by the third appellant, in the conspiracy. 2. The Crown again emphasised that no further direction was sought by experienced senior counsel who appeared for the third appellant at trial. It was submitted that the only conclusion which could be drawn in these circumstances was that counsel perceived no danger that the jury might misunderstand the directions which had been given by the trial judge. Consideration 1. For a number of reasons, there is no merit in this ground. 2. As counsel for the third appellant expressly acknowledged, evidence which did not directly implicate the third appellant was nevertheless available to prove the nature and scope of the conspiracy. 3. Moreover, the approach taken by counsel for the third appellant in respect of this ground again failed to have regard to the summing up as a whole, and ignored a number of other directions given by the trial judge. Having regard to those other directions, the jury could not possibly have been in any doubt about the evidence which was available to them to consider in determining the issue of the participation of the third appellant in the conspiracy. 4. Specifically, having directed the jury in relation to the general nature of a conspiracy, the trial judge then said: "In order for you to find any of the accused guilty the Crown must satisfy you beyond reasonable doubt of the following essential legal elements in relation to the particular accused whose case you are considering: 1. That there was in fact an agreement between two or more persons to kill Terrence Falconer, and 2. That the particular accused whose case you are considering participated in the agreement in the sense that: (a) the particular accused agreed with one or more of the other persons referred to in the count of conspiracy to murder that the unlawful objective of the conspiracy, that is the killing of Terrence Falconer, should be carried out and (b) at the time of agreeing to this he intended that unlawful objective – the killing of Terrence Falconer – should be carried into effect" (emphasis added). 1. These directions were specifically set out in MFI 79. Having directed the jury in those terms, the trial judge reminded the jury of the requirement to consider the case against each appellant separately. 2. The trial judge then directed the jury in the following terms: "Let us now consider together the second essential legal element which the Crown must prove beyond reasonable doubt. That is that the particular accused whose case you are considering participated in the agreement to kill Terrence Falconer. In order for an accused to have participated in the agreement, the Crown must prove beyond reasonable doubt that he knew that the objective of the agreement was to kill Terrence Falconer, and must have intended to carry that objective into effect. It is not necessary for the Crown to prove that the agreement was carried into effect, but it is necessary for the Crown to prove beyond reasonable doubt that the particular accused intended that it be carried into effect. He must have been a party to that common design with at least one other person ….. Please remember that you must consider the case against each accused separately. The Crown relies on circumstantial evidence to prove that there was an agreement to kill Mr Falconer and each of the accused participated in that agreement" (emphasis added in each case). 1. The trial judge then set out those matters specifically relied upon by the Crown to establish the third appellant's participation in the conspiracy (such matters having been considered in respect of Ground 1). He repeated some of those matters in the passage extracted above at [444]. 2. Finally, the trial judge returned to the issue of the necessity to consider the cases separately: "It is important, members of the jury, that I now provide you with some assistance with the evidence that is available for you to consider on the count of conspiracy to murder. As you know, I have emphasised that there are three trials going on here. A trial against each of the accused. I have directed you during the trial at relevant times about particular parts of the evidence and have done so to assist you to understand whether a particular piece of evidence is available for your consideration in the case of a particular accused. I have also referred during these directions to two distinct legal elements in a charge of conspiracy. The existence of the conspiracy and the participation of the accused in that conspiracy. Please remember that proof of the existence of the conspiracy does not mean proof that a particular accused participated in it. The evidence against each of the accused may include evidence relating to what the accused did or said. It might also include what was said or done by other alleged conspirators in the presence of the particular accused. Generally speaking an accused is not to be held liable for the acts or statements of others if he is not present when those acts were done or those statements were made. However, there is an exception to this rule in the case of a charge of conspiracy. This exception permits in certain circumstances, and for certain limited purposes, evidence of acts done, and statements made by other alleged conspirators in the absence of one of their number to be admissible in the case against him" (emphasis added in each case). 1. Contrary to the submission advanced by counsel for the third appellant, the jury were not invited to conclude that the third appellant had participated in the conspiracy on the basis of acts with which he was entirely unconnected. The trial judge directed the jury, with precision, as to the evidence upon which the Crown relied to establish the third appellant's participation. That direction was given in the context of the jury being directed as to the necessity to consider the case against each of the appellants separately, as well as being directed as to the fact that establishing the existence of the conspiracy was quite separate from establishing the third appellant's participation in it. 2. In all of these circumstances, there is no room for a suggestion that the effect of the trial judge's directions was to permit the jury to conclude that the third appellant was a participant in the conspiracy in the absence of any evidence of his participation. 3. It is unsurprising in these circumstances that no issue was taken by experienced senior counsel at trial in respect of the trial judge's directions. Leave to appeal in respect of this ground should be refused. Conclusion 1. We would make the following orders: 1. In respect of Ground 1, appeal against conviction dismissed 2. In respect of each of Grounds 2, 3 and 4, leave to appeal refused. ********** Amendments 20 May 2016 - Cover Sheet - Representation Change "Ms A Lewer" to "Ms G Lewer" 31 May 2016 - Pars [329] [332] [333] [334] [337] change "I" to "we" 02 November 2016 - Par [228] name anonymised 01 February 2017 - Pars [15] [129] change "Justin Burkhill" to "Justice Birk Hill" [99] change "Witness C" to "Witness E" [190] change "later" to "lateral" [203] change "760mm" to "1760mm" [221] change "Parramatta" to "Turramurra" [227] anonymise name [233] change "Parramatta" to "Silverwater" [242] change "CLR 524" to "CLR 594" [244] change "[227]" to "[228]" [265] change "VSCA 141" to "VSCA 121" [268] change "NSWCCA 232" to "NSWCCA 186" [327] change "184 CLR 487" to "181 CLR 487" [361] change "eight" to "nine"; change "called Witness A" to "called or texted Witness A" [388] change "[27]" to "[26]" [403] change "Dr" to "Mr" [411] change "254 CLR 259" to "83 ALJR 579" [478] change "Simpson JA and Wilson J" to "Simpson and Wilson JJ" 03 February 2017 - Par [384] Change "none of the jurors would not have been" to "none of the jurors would have been" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2017