Supreme Court of South Australia
(Court of Criminal Appeal)

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R v GASSY (No 3)

Judgment of The Court of Criminal Appeal
(The Honourable Justice Debelle, The Honourable Justice Bleby and The Honourable Justice White)

22 December 2005

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS
Appeal against conviction – Appellant convicted by jury of murder – Prosecution case circumstantial – Appeal on grounds for which leave was granted by a single judge and additional grounds for which leave was granted by this Court – Whether any error or errors established – Whether an error or combination of errors led to miscarriage of justice and unsafe and unsatisfactory verdict – Appeal dismissed by majority.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WARRANTS, ARREST, SEARCH, SEIZURE AND INCIDENTAL POWERS - WARRANTS - SEARCH WARRANTS - ISSUE AND VALIDITY - CERTAINTY AND WIDTH
Two search warrants, dated 28 October 2002 and 10 March 2003, issued under Search Warrants Act 1985 (NSW) to police to enter and search appellant’s home in NSW – Items seized included important items of circumstantial evidence - Whether each search warrant invalid for failure to disclose jurisdiction on its face and for failure to specify the offence to which it related, and, in the case of the first, for misstatement of the address of the premises to be searched, and other inaccuracies – Whether police made representations to appellant and his mother which implied that they held a valid warrant – Where on 29 October 2002 issuing justice corrected the misstated address by substitution of first page of warrant – Whether issue of a new warrant or amendment of warrant issued on 28 October 2002 – Whether trial Judge erred by ruling search warrants to be valid – Whether trial Judge should have exercised public policy discretion to preclude the Crown from adducing into evidence items found during the course of each search.
Held: Not necessary for warrants to disclose jurisdiction on their face – Each warrant issued in conformity with prescribed form of warrant – Sufficient statement of offence to which the first warrant related – When warrant first issued on 28 October 2002, it did not, because of misstatement of the address, authorise search of the appellant’s premises – Invalid on that account – Not necessary to decide whether actions of issuing justice on 29 October 2002 should be characterised as an amendment of the warrant issued on 28 October 2002 or as issue of a new warrant – Not necessary to determine whether police had impliedly represented that they had a valid warrant – Warrant dated 10 March 2003 was invalid because of failure to specify the offence in respect of which the search was authorised – Bunning v Cross discretion could not reasonably have been exercised so as to exclude evidence of items found in each search – Police had had a genuine belief that the first warrant was valid – Police attempted to comply with the law – Contravention of the law not deliberate – Appeal ground dismissed.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MATTERS CONNECTED WITH CONDUCT OF DEFENCE - LEGAL REPRESENTATION - GENERALLY
Appellant sought representation by counsel on voir dire hearing but not at jury trial – Ruling that counsel unable to appear on voir dire unless briefed for entire trial – Consideration of right to legal representation – Appellant not indigent accused – Effect of Criminal Law (Legal Representation) Act 2001 (SA) – Meaning of “trial” – Consideration of trial judges' discretion to control proceedings – Whether sound basis for ruling – Whether denial of legal representation during period for which representation sought led to miscarriage of justice – Whether appellant lost chance fairly open to him of acquittal – Where leave granted to re-open some arguments – Rulings on voir dire not made whilst appellant denied representation - Certain arguments put subject of grounds of appeal – Consideration of involvement of counsel who appeared for parts of voir dire proceedings including after ruling subject of this ground of appeal – Effect of appellant’s choice to terminate counsel’s instructions and to appear in person on appeal – Consideration of discretionary rulings as to admissibility of evidence argued by appellant not subject of application by counsel to re-open nor subject of specific complaints on appeal – Held by majority: Erroneous denial of legal representation did not in this case lead to miscarriage of justice.
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - GENERALLY
CRIMINAL LAW - EVIDENCE - EVIDENTIARY MATTERS RELATING TO WITNESSES AND ACCUSED PERSONS - IDENTIFICATION EVIDENCE
Alleged unreliability of identification evidence – Where one witness originally identified person other than the accused from photographic array – Where witness subsequently requested to repeat procedure and selected photograph of the accused – Whether witness influenced by police officer during identification process – Whether identification evidence wrongly admitted – Whether admission of identification evidence resulted in a miscarriage of justice – Consideration of weaknesses in the positive identification of the accused by eight witnesses – Whether trial Judge adequately directed jury about the deficiencies and dangers of relying on identification evidence – Held: No error demonstrated.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - COURSE OF EVIDENCE, STATEMENTS AND ADDRESSES - GENERALLY
Complaints regarding various comments on evidence and directions to jury given by trial Judge.
Whether comment regarding system of motor vehicle registration in South Australia misleading – Whether matter of common knowledge – Whether comment displaced defence case on that topic – Whether comment demonstrated bias – Held: Comment unnecessary but not misleading, not evidence of bias, no miscarriage of justice.
Black direction given to jury after indication given via note that jury unable to reach verdict – Complaint as to comment made by trial Judge immediately preceding Black direction – Whether comment contrary to principles in Black ie; Whether undue pressure on jury to reach verdict – Held: No error demonstrated.
Redirection given the following day after second note from jury seeking assistance as to “moving on” from impasse – Nature of difficulty not identified – General suggestions given by trial Judge as to possible systematic method for working through evidence and identifying areas of agreement and disagreement – Earlier direction as to proper use of particular evidence concerning appellant’s alleged presence in Brisbane repeated at jury’s request – Whether redirection unbalanced and placed excessive emphasis on prosecution case whilst failing to make adequate reference to defence case – Whether language used suggested or implied jury should make findings consistent with prosecution case – Where jury returned guilty verdict soon after redirection – Held by majority: Redirection not unbalanced, neutral suggestion as to decision-making process which might assist jury, did not imply findings adverse to appellant should be made. 
Statement in summing-up concerning accuracy of appellant’s address and evidentiary basis of submissions – Failure of trial Judge to identify specific inaccuracies and submissions lacking evidentiary basis – Whether direction unfavourable – Whether entire defence case undermined – Held: No error, inaccuracies warranted comments made, comments to be read in context of summing-up as whole - Detailing appellant’s mistakes would have seriously damaged defence case.
Complaint regarding comment made in summing-up concerning evidence of phone calls appellant relied on as alibi – Whether trial Judge made impermissible suggestion that Telstra’s records inaccurate – Whether comment effectively destroyed alibi – Whether prosecution’s burden of proof lowered – Held: No error demonstrated, trial Judge entitled to identify all possible factual scenarios for consideration by jury whether put forward by prosecution, defence or otherwise - Clear and proper directions given as to need for jury to be satisfied beyond reasonable doubt that appellant in Adelaide at relevant time - No risk of miscarriage.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - POWERS OF JUDGE - LEAVE TO RE-OPEN CASE AND RECALL WITNESSES
Trial Judge refused leave to the appellant to cross-examine further two Crown witnesses – Whether refusal resulted in a miscarriage of justice – Decision to grant leave for further cross-examination involved an exercise of discretion by the trial Judge – Consideration of factors influencing exercise of discretion – Held no miscarriage in trial Judge’s exercise of discretion – Appeal ground dismissed.
CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF
Whether trial Judge erred by failing to direct jury that before guilt could be inferred from motive it had to be satisfied that the motive alleged had been proven beyond reasonable doubt – Trial Judge summarised prosecution case as to motive – Conventional directions given as to circumstantial nature of prosecution case – Whether specific direction that motive must be proven necessary – Where prosecution case as to motive not essential link in chain of reasoning which needed to be established before other evidence could be properly considered – Where jury not invited to infer guilt from motive alone – Held: Specific direction unnecessary.
Search Warrants Act 1985 (NSW) Pt 2, s 2, s 5, s 6, s 7, s 9, s 11, s 12A, s 13, s 14, s 15, s 15A, s 16, s 23, s 24, s 26; Search Warrant Regulations 1986, 1994 and 1999 (NSW) Forms 3, 5, 6; Listening Devices Act 1969 (Vic) s 4A; Royal Commission (Police Service) Act 1994 (NSW) s 23; Crimes Act 1900 (NSW) s 18; Justices Act 1902 (NSW) s 20; Telecommunications (Interception) Act 1979 (Cth); Criminal Law (Legal Representation) Act 2001 (SA) s 3, s 4, s 6, s 8, s 9, s 10, s 11; Supreme Court Criminal Rules 1992 (SA) r 9, r 16.01; Criminal Law Consolidation Act 1935 (SA) s 285A, s 288, s 353(1); Legal Services Commission Act 1977 (SA), referred to.
Question of Law Reserved on Acquittal (No 5 of 1999) (2000) 76 SASR 356; Bunning v Cross (1978) 141 CLR 54; R v Tillett; ex parte Newton (1969) 14 FLR 101; Australian Broadcasting Corporation v Cloran (1984) 4 FCR 151; Pressler v Holzberger (1989) 44 A Crim R 261; R v Conley (1979) 21 SASR 166; R v McColl [1999] NZCA 131; Ridgeway v The Queen (1995) 184 CLR 19; WR Carpenter Australia Ltd v Ogle [1999] 2 Qd R 327; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Potter v Minahan (1908) 7 CLR 277; Bropho v State of Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427; Festa v The Queen (2001) 208 CLR 593; Alexander v The Queen (1981) 145 CLR 395; Domican v The Queen (1992) 173 CLR 555; Gilbert v The Queen (2000) 201 CLR 414; Stanton v The Queen (2003) 77 ALJR 1151; Brown v Petranker (1991) 22 NSWLR 717; House v The King (1936) 55 CLR 499; Ramsay v Watson (1961) 108 CLR 642; Paric v John Holland (Constructions) Pty Ltd (1985) 59 ALJR 844; Simic v The Queen (1980) 144 CLR 319; R v Koeleman [2000] 2 VR 20; R v Pantoja [1998] NSWSC 565; R v Plevac [1999] NSWCCA 351; R v Fowler [2000] NSWCCA 142; R v Fowler (2003) 151 A Crim R 166, applied.
Ousley v The Queen (1997) 192 CLR 69; Warner v Elder (Unreported, Supreme Court of New South Wales, 23 April 1997); Carver v Clerk of the Court, Local Court at Blacktown (Unreported, Supreme Court of New South Wales, 13 March 1998); Dover v Ridge (Unreported, Supreme Court of New South Wales, 3 September 1998); Douglas v Blackler [2001] NSWSC 901; Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149; Dietrich v The Queen (1992) 177 CLR 292; Wilde v The Queen (1988) 164 CLR 365; R v Kostic (2004) 237 LSJS 374; R v Southon (2003) 85 SASR 436; Penney v The Queen (1998) 72 ALJR 1316; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; Shepherd v The Queen (No 5) (1990) 170 CLR 573; R v Kotzmann [1999] 2 VR 123, discussed.
Davies and Cody v The King (1937) 57 CLR 170; R v Hulse (1971) SASR 327; Glennon v The Queen (1994) 179 CLR 1; R v D (1997) 68 SASR 571; KTB v The Queen (1997) 191 CLR 417; Quartermaine v The Queen (1980) 143 CLR 595; Sumbramanian v The Queen (2004) 79 ALJR 116; Cleland v The Queen (1982) 151 CLR 1; Love v Attorney-General (NSW) (1990) 169 CR 307; MacGibbon v Warner; MacGibbon v Ventura; MacGibbon v O'Connor (1997) 98 A Crim R 450; Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728; Haynes v Attorney-General of New South Wales (Unreported, Supreme Court of New South Wales, 9 February 1996); Jago v District Court of New South Wales (1989) 168 CLR 23; R v Polley (1997) 68 SASR 227; R v Blayney [2002] 220 LSJS 102; R v Story (2004) 144 A Crim R 370; Black v The Queen (1993) 179 CLR 44; Masters v The Queen (1992) 26 NSWLR 450; R v Grant (1958) Crim LR 42; R v Murphy (1985) 4 NSWLR 42; Peacock v The King (1911) 13 CLR 619; Pantoja v The Queen (2000) 21(2) Leg Rep C3a; R v Plomp (1963) 110 CLR 234; Gipp v The Queen (1998) 194 CLR 106; R v Landells [2000] VSCA 84; R v Nguyen (2001) 118 A Crim R 479; R v Cummins (2004) 10 VR 15; De Gruchy v The Queen (2002) 211 CLR 85; B v The Queen (1992) 175 CLR 599; Carroll v Mijovich (1991) 25 NSWLR 441, considered.

R v GASSY (No 3)
[2005] SASC 496

Court of Criminal Appeal:	Debelle, Bleby and White JJ

TABLE OF CONTENTS
Paragraph No(s)
DEBELLE J

Ground 14 – The Supplementary Direction	  2-21

Ground 2 – Denial of Representation	22-30

BLEBY AND WHITE JJ

1.	Background	

	1.1	The prosecution case	32-42
	1.2	The defence case	43  
	1.3	A voir dire hearing	44

2.	Ground 1 – Evidence of items found on execution of
	search warrants
	
	2.1	The circumstances of the execution of the warrant on
		29 October 2002	47-51
	2.2	The application for exclusion	52-57
	2.3	The decision of the trial Judge	58
	2.4	The arguments on appeal	59	
	2.5	The Search Warrants Act 1985 (NSW)	60-69
	2.6	The search warrant dated 28 October 2002	70
	2.7	Disclosure of jurisdiction on the face of the warrant	71-93
	2.8	The statement of the offence	94-97
	2.9	The misstatement of the address	98-105
	2.10	The procedures adopted on 29 October 2002	106-113
	2.11	Police conduct involving Mrs Gassy and the 
		appellant	114-115
	2.12	Bunning v Cross discretion	116-118
	2.13	The search warrant dated 10 March 2003	119-124

3.	Ground 2 – Legal representation of the appellant

	3.1	Denial of representation	126-137
	3.2	Representation of Mr de Robillard	138-141
	3.3	Mr de Robillard’s instructions terminated	142
	3.4	The period the appellant was not represented	143-144
	3.5	The right to representation	145-158
	3.6	The Criminal Law (Legal Representation) Act 2001	159-183
	3.7	A miscarriage of justice?	184-206

4.	Ground 9 – Ms Durrington’s evidence of identification

	4.1	Ms Durrington’s identification – the facts	209-211
	4.2	Evidence on the voir dire	212-219
	4.3	The allegedly tainted identification	220
	4.4	The alleged unreliability of the identification	221
	4.5	The discretion to exclude	222-228
	4.6	A miscarriage of justice?	229-233

5.	Ground 12 – Warnings about identification evidence

	5.1	The identification evidence	235-237
	5.2	The approach to identification evidence	238-241
	5.3	The significance of the identification evidence	242		
	5.4	The trial Judge’s directions	243-255

6.	Ground 13 – Trial Judge’s comment regarding number plates

	6.1	Background	256-257
	6.2	The appellant’s complaints	258-259
	6.3	A miscarriage of justice?	260-265

7.	Ground 14 – The trial Judge’s redirection to the jury

	7.1	The course of the jury’s deliberations and the 
		Judge’s redirection	266-283
	7.2	Undue pressure on the jury?	284-285
	7.3	Whether the redirection was unbalanced	286-296

8.	Grounds 16.1 and 16.2 – Statements in summing up regarding
	accuracy of the appellant’s address and evidentiary basis of
	submissions

	8.1	The complaints	297-298
	8.2	Context of the directions	299-301
	8.3	Whether the directions were unfavourable	302-306

9.	Ground 16.4 – Statement in summing up regarding Telstra

	9.1	The evidence	307-310
	9.2	The appellant’s complaint	311-312
	9.3	Resolution of the complaint	313-315

10.	Ground 18 – Refusal to permit further cross-examination of 
	witnesses

	10.1	The Principles	318-319
	10.2	Senior Constable Lawrence	320-337
	10.3	Robert Champion	338-343
	10.4	Conclusion on Ground 18	344

11.	Ground 25 – The direction as to motive

	11.1	The complaint	345-347
	11.2	The direction on motive	348-349
	11.3	Whether the direction was defective	350-364

12.	Ground 28 – Unsafe and unsatisfactory verdict	365-368

13.	Conclusion	369

1	DEBELLE J.	This appeal should be allowed on two grounds.  I will confine my attention to them.
Ground 14 – The Supplementary Direction
2	The facts leading to the supplementary direction are recited in the joint judgment of Bleby and White J.  I will add such other facts as are necessary for these reasons.
3	I agree with the reasons of Bleby and White JJ and with their conclusion that the remarks made by the trial judge before she gave the Black direction and that direction itself did not impose undue pressure on the jury to reach a verdict.  However, the direction which the judge gave after the Black direction (“the supplementary direction”) was so seriously flawed that I would allow the appeal on this ground.
4	The trial judge had delivered the Black direction at about 4.15 pm on the day before the verdict was given.  The jury deliberated again until about 7.45 pm when the judge suggested they continue their deliberations next morning at 9.15 am.  The jury had hardly resumed their deliberations the next day when the judge recalled them at 9.29 am and asked if she could assist.  She said:
HER HONOUR:	Good morning, ladies and gentlemen.  I had hoped that you might have a question for me or give me some indication of any way that I could assist you.  Of course, that is entirely for you.  I could suggest some sort of approach for you to take in an attempt to move your discussions along, if you wanted me to, but I am not going to do that uninvited.
As I said last night, if you would like any part of my summing up given to you again I am happy to do that.  Obviously, you cannot go on deliberating forever and you will know if you reach a position where you are hopelessly deadlocked.  If you tell me that is the position after consideration then, of course, you must be discharged.  But while there is still fruitful discussion occurring and while you are all listening to each other’s views and considering each other’s positions and arguments, then I would not interrupt that.  So I urge you, if I can help in any way, I will be very happy to but, if you prefer just to press on as you have been, of course, that is entirely your decision.
About two hours later the jury sent the judge a note in these terms:
The jury would appreciate hearing your suggestions on moving on from this position we are in at this stage.
The judge then recalled the jury.  It is necessary to set out the whole of the supplementary direction.  For ease of reference, I have numbered the paragraphs in the body of the direction.  The transcript reads:
HER HONOUR:	Mr Brebner and Dr Gassy, I have another note which has asked me to give to the jury my suggestions as to how they might move forward.  So I propose to do that.
JURY ENTERS COURT 11.18 A.M.
HER HONOUR:	Ladies and gentlemen, thank you for your note.  I will do what I can, in the hope of assisting you.
1.	Sometimes, when one reaches a difficult position and cannot move on, of course, it is good to go back to the beginning.  I am not suggesting that you would start the whole process again, of course.  I am not suggesting days of work.  But rather, why not take stock right back from the beginning and then, from that point, see if you can move forward in a different way.  A good thing to do along the way is to sort out the common ground.  And once you have got that common ground, ask yourselves how that helps you.  What does it tell you?
2.	Now, you will remember in my summing up I spoke to you about a number of different topics which I suggested made up the prosecution case.  That is only my way of labelling them.  You might have done it differently but, since it is the way I used, I am going to go back to that.  But I do suggest that you look at them in a new order, not the order which I gave you previously.
3.	Perhaps first look at the evidence that I discussed under the heading of “Equipment”.  That is a fairly straightforward topic, I would have thought, and I know you know what the evidence is under that topic.  No doubt you have discussed it already.  With that in mind, ask yourselves “Are we at one about that?  Can we call that evidence, and our view of that evidence, common ground?”  And if you can, then move on.
4.	The next topic you could go to, perhaps, is what I called “Motive”.  That, of course, was the deregistration sequence, and it included that number of statements which various witnesses attributed to the accused about Dr Tobin.  Well, once you have looked at that, again in overview, ask yourselves “Are we at one about that?”
5.	Then I suggest you could go to “Brisbane”.  You will remember that I gave you quite extensive directions about Brisbane because, obviously, it is a very important part of the prosecution case and, in a sense, it is a difficult part of the case.  So the question is, as I told you, “Are you satisfied beyond reasonable doubt that the accused was the man at the Convention Centre, that he was there for a purpose related to Dr Tobin and that his motive was a sinister one?”  And remember I gave you in my summing up - and I will not repeat it now unless you wish me to – a number of areas of evidence that bore on those questions.  Now you need to make a decision about Brisbane, as it seems to me.  It is a very significant part of the prosecution case.
6.	If you have reached that conclusion about Brisbane, then I suggest, look again at the evidence I discussed under the topic of “Opportunity”.  Remember I said to you that it perhaps was not the best word to describe that topic.  The topic is probably bigger than mere opportunity, but I mentioned a number of topics under that heading.
7.	Then, ask yourselves the question “Are we satisfied beyond reasonable doubt that the accused was in Adelaide when Dr Tobin was killed?”  If that is a point of difficulty, then I suggest you go through all the evidence that bears on that question.  If you cannot recall the detail of all that evidence, then, by all means, ask me a question about it and I will go through it systematically.  But if that is where the difficulty is, you need to be able to call to mind all the evidence that bears on that topic and you need to be able to call to mind the arguments that the prosecutor and Dr Gassy put to you about that.
8.	Then, finally, you could look at the scene.  I spent little time on that because it seems to me that it does not help you all that much.  But that is a question for you.  You know from the scene the type of killing it was and, possibly, that the fourth man in the lift was the killer.  But then there are competing arguments about that.  So does that help you?
9.	Of course, I do not know where your difficulty is but, if you get through that process, then you could ask yourselves “Are we in agreement to this point?”  And I say again, if you are not, then you need to isolate the exact point where your views diverge and you need to focus on that point and you need to go through that process:  “What is the evidence on this point?  Do we have adequate recall of all that evidence?  Do we need to hear some of it read?  Do we need a summary of it?  Do we need to know again what anyone said about it?”  Make a list, I suggest, of that evidence and then make a list of the arguments on both sides relating to that point and then analyse those arguments.
10.	Now, let me assume, for the purpose of this exercise, that you are in agreement to that point.  The next question, of course, would be:  “Now we have decided the accused was in Adelaide when Dr Tobin was killed, what was his purpose for being here?  Did he kill her?”.  So then you ask “What evidence helps us on that point?”  Here you will remember I gave you a direction about the use of the Brisbane evidence.  It is a difficult direction in a way and I wonder whether it might help you if I gave it to you again.
11.	FOREPERSON:	Yes.
12.	HER HONOUR:	I will put it into context.
13.	I had just gone through all the evidence I said you could take into account on this question of whether the accused was the man in Brisbane, and I will not go through that at the moment; I have really moved past that point for this purpose.  Then I said to you:  “Now, having considered and evaluated all that evidence, if you are satisfied beyond reasonable doubt that it was the accused acting suspiciously at the Convention Centre on 27 April 2002, and that he was there for a purpose related to Dr Tobin, and that it was a sinister purpose, then you are entitled to use all that material and the conclusion when you come to consider the other evidence which bears on the identity of Dr Tobin’s killer.  You could use that conclusion in this way.  First, you could use it as bearing on the identity of the man David Paes at the Shamrock and the Lindy Lodge Motels, and on the Renmark video.  And, further, if you conclude that the accused and David Paes are one and the same, and that he used the vehicle with the registration number RSX-366 to drive to Adelaide, then you could use the Brisbane evidence to throw light on the reason for the accused’s presence in Adelaide.  Because once you know that Dr Tobin was killed in what might be called execution style in Adelaide in October, then any incident concerning her, or possibly concerning her, in the year or two leading up to that event, would potentially take on a new significance.
14.	If it turns out that there was such an incident in Brisbane earlier in the year, and if you conclude that the accused was the person at the centre of that incident, and then, if you find a number of similarities between the circumstances of the Brisbane and Adelaide incidents, including that, on each occasion, if you find it so, this man with what you might find was a profound resentment towards Dr Tobin, a man who possessed the type of weaponry that killed her, had made a long, clandestine and otherwise unexplained journey to the place where Dr Tobin was at that time; a planned journey, using a hired car, notwithstanding the availability to him of his own and his parents’ cars, a journey each time coinciding with his parents’ absence from the home they shared, then your conclusion that the accused was that man in Brisbane could take on a decisive character in relation to your deliberations about the identity of Dr Tobin’s killer in Adelaide.
15.	It is for you to say whether such a line of reasoning is helpful in this case.  The potential relevance of the Brisbane evidence is then its tendency to prove the accused’s presence in Adelaide and as to his purpose for being here.  That is the proper use of the Brisbane evidence.”
16.	And so you would have, on this question of the accused’s purpose, the Brisbane evidence, the timing of the trip, the hiring of the car, the return of the car, the suggestion of the trip being clandestine, the false names used in the motels, the fact, if you find it so, of the dumping of rubbish at Renmark, potentially linking the two trips, the timing I think I said of the departure from Adelaide, if you find it so, and the very type of killing it was.
17.	Well, again I say to you, if that is the point of difficulty, make a list of the evidence that bears on those matters, discuss what can be drawn from that evidence, recall the arguments as to each of those matters, decide whether you adequately recall all the evidence and all the arguments as to it and, if you do not, then please ask for help.  And that, as I said, could be reading from some passages of a particular witness’s evidence (and you could direct me to the very points that you wanted read out) or it might mean reading a part of my summing up again or asking me for a summary of something that you thought important.  And I could compile something like that and let you have it.
18.	So, that is the series of suggestions that I make to you.  Perhaps I can ask you to retire again.  Hopefully it has been of assistance.
The first three paragraphs contain nothing objectionable.  However, in the fourth paragraph, the judge begins to depart from a mere suggestion as to the process by which the jury might approach the issues.  When reminding the jury of the evidence of prosecution witnesses concerning the events leading to the removal of the appellant from the register of medical practitioners in New South Wales, the judge says nothing as to the evidence given by the appellant on that issue.  Standing alone, this might not have been grounds on which to find that a miscarriage of justice had occurred.  However, the remarks must be viewed with other remarks later in this supplementary direction.
5	The next paragraph referring to the extensive directions concerning events in Brisbane twice highlights the events in Brisbane as a very important part of the prosecution case.  The jury is reminded of the evidence and in the next paragraph the judge states that, if they are satisfied beyond reasonable doubt that the appellant was the man at the Brisbane Convention Centre for a purpose associated with the victim Dr Tobin and that his motive was sinister, then they should consider the evidence discussed under the heading “Opportunity”.  Although the judge does not identify the evidence on this issue, she is clearly spelling out a line of reasoning to the jury which would lead to a verdict of guilty.
6	The judge then moves in para 7 to the question whether the jury is satisfied beyond reasonable doubt that the appellant was in Adelaide when Dr Tobin was killed.  Although the judge asks the jury to consider both prosecution and defence evidence, she continues to spell out a line of reasoning leading to a verdict of guilty.
7	Moving ahead to para 10, the judge assumes for the purpose of the so‑called “exercise” that the jury has determined that the appellant was in Adelaide when Dr Tobin was killed.  She then asks the jury to consider what his purpose was in being in Adelaide and to ask themselves if he killed Dr Tobin.  The question posed by the judge is unfortunately expressed.  It was:
“Now we have decided the accused was in Adelaide when Dr Tobin was killed, what was his purpose for being here?  Did he kill her?”.  So then you ask “What evidence helps us on that point?”
Notwithstanding the judge has been careful to state that she is assuming the jury has reached that conclusion, there was a real risk that some, if not all, members of the jury would understand that the judge had concluded that the appellant was in Adelaide when Dr Tobin was killed.  If understood in that way, the prejudice to the appellant is plain.
8	The trial judge then embarks in para 13 on an exercise which links the evidence concerning events in Brisbane with his presence in Adelaide.  The line of reasoning presented by the judge is very similar to that put by the prosecution in its address to the jury.  It is in effect a summary of the prosecution address.  It is a line of reasoning which points to the guilt of the appellant and which members of the jury would understand to have carried the imprimatur of the trial judge.
9	The fact that the judge uses the conjunction “if” four times in para 14 and then in the next paragraph reminds the jury that it is for them to determine whether the line of reasoning is helpful is not, I think, likely to have alerted the jury to the fact that these were issues they had to decide.  Although the judge is repeating part of her initial direction, it would not be clear to the jury when the judge had ceased quoting from it.  More importantly, what the judge said when initially directing the jury was followed by a summary of the defence case.  That summary is entirely absent from this supplementary direction
10	This was, in short, a recapitulation of the prosecution case, albeit qualified on occasions by reminding the jury that they themselves had to decide the issues of fact.  The prejudicial effect of these remarks is heightened by the fact that the trial judge does not remind the jury of any aspect of the defence case save for one brief and insignificant reference at the end of para 7.
11	The prejudicial effect of this supplementary direction was re‑inforced by the trial judge’s final remarks made after the judge had recalled the jury following the supplementary direction.  Counsel for the prosecution had asked the jury to correct some aspects of the supplementary direction.  The judge recalled the jury and said:
Ladies and gentlemen, I am sorry to interrupt you so soon after sending you back.  There are three matters I wish to mention to you.
The first is that there was a concern that I have not made it clear enough that what I have said to you are merely suggestions for your consideration.  I thought I made that clear, but that is all they are.
Secondly, when I was talking to you, in the last part of what I said about the question of purpose, if you reach the view that the accused was in Adelaide during Dr Tobin’s killing, I meant to say, and I had it in my notes, that motive would be relevant to that as well.  And so you would have Brisbane, the timing of the trip, the suggestion of it being clandestine, the false names, motive of course would be relevant there, the type of killing it was and I should have added that, in those circumstances, on that question, that the gunshot residue in the motor vehicle might be significant.  Those are the only matters.
Although the judge said she was going to mention three matters, she, in fact, mentioned only two.  The jury then retired.
12	The remarks in the final paragraph were especially prejudicial in that it is a re‑iteration of the summary of an important aspect of the prosecution case, an aspect which the judge had described in para 5 of the supplementary direction as “a very significant part of the prosecution case”.  The result is that the last remarks the jury heard from the judge were a firm reminder of the key factors in the prosecution case.  The members of the jury retired with that reminder in their ears.
13	After those remarks, the jury retired at 11.41 am and returned shortly after at 12.16 pm with a unanimous verdict of guilty.  Given the fact that the jury had not earlier been able to reach a verdict after deliberating for one and a half days, it is a matter for remark that the jury was able to reach its verdict so quickly, a little over one half hour after the judge’s supplementary direction.  This was, in my view, a direct consequence of the terms in which the direction had been expressed.  With respect, I cannot share the view of Bleby and White JJ that the fact that the jury returned so soon after the supplementary direction might merely indicate that, if the jury did follow the process suggested by the judge, what may have been only one sticking point was able to be resolved by adopting this suggestion.
14	There will be occasions when it is appropriate for a trial judge to make suggestions as to what might be a convenient way for the jury to approach their deliberations: Stanton v The Queen (2003) 198 ALR 41 at [38].  However, any suggestion of that kind must maintain a proper balance between both the prosecution case and the defence case.  The suggested approach must be expressed in neutral terms so that the jury is aware both that it is free to deliberate without any pressure to reach a verdict and that it may give the issues that free deliberation to which both the accused and the Crown are entitled: Black v The Queen (1993) 179 CLR 44 at 51.  In this case, that balance was not maintained.
15	That balance was described in these terms in Cleland v The Queen (1982) 151 CLR 1 at 10:
It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence.  In what manner, and in what detail, this should be done must of course depend on the circumstances of each case.
Those observations were made in the context of the initial direction to the jury. They have even greater force when, after the jury has been deliberating for a long time and is plainly having difficulty in reaching its verdict, the judge embarks upon suggestions as to how the jury might approach the issues in the trial.
16	As Cox J noted in R v D (1997) 68 SASR 571 at 579 – 580, a trial judge is entitled to comment on the evidence in the course of a direction as long as the effect of the remarks is not to overawe the jury.  The direction must exhibit a judicial balance so that the jury is not deprived of “an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence”: B v The Queen (1992) 175 CLR 599 at 605, per Brennan J citing the Full Court of this State in R v Hulse  (1971) 1 SASR 327.  The reasons of Cox J in R v D at 579 – 584 contain a very helpful summary of the extent to which a judge may comment.  The need for the balance to which Brennan J and later Cox J refer is plainly greater in a supplementary direction late in the course of the deliberations of the jury.
17	While it was appropriate for the judge to make suggestions as to how the jury might approach the evidence and identify areas of disagreement or uncertainty for discussion before proceeding to the next step, the judge did not maintain a fair balance between the prosecution and the defence case.  Although she reminded the jury from time to time that they had to be satisfied beyond reasonable doubt before moving to the next issue of fact, the judge has done little more than recite the elements of the prosecution case and suggest a line of reasoning based on the prosecution case and leading to a verdict of guilty.  That line of reasoning contained no significant reference to the case for the defence and could not, therefore, be described as neutral.  It did not preserve a balance between the prosecution and defence case.  The direction, therefore, deprived the jury of an adequate opportunity of understanding and giving effect to the matters relied upon in support of the defence case.  In the result, the appellant lost a fair chance of an acquittal.  It cannot be said that a jury would inevitably have convicted.  That is apparent from the difficulty the jury was initially having in reaching a verdict.
18	In reaching this conclusion I have given all due weight to those instances when the trial judge has reminded the jury that it is necessary for them to be satisfied beyond reasonable doubt as to a particular fact or set of facts.  However, in my view, they do not counter the overall effect of the line of reasoning suggested by the judge.  I have read and re‑read the main direction and this supplementary direction to gain the overall tenor of each.  I remain with the clear impression that the supplementary direction clearly lacked the neutrality required at this critical stage in the reasoning of the jury.
19	I have also given careful consideration to the views of Bleby and White JJ.  With respect, I cannot share the view that the trial judge was merely making suggestions for the consideration of the jury and that the judge did no more than remind the jury that they needed to recall all the evidence that related to each topic.  My summary of the directions indicates that the trial judge went a good deal further.
20	Where there has been a departure from the requirements of a properly conducted trial, the Court must consider whether the appellant has lost a chance which was fairly open to him of being acquitted.  The test was expressed in these terms by Brennan, Dawson and Toohey JJ in Wilde v The Queen (1988) 164 CLR 365 at 371 – 372:
Where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost “a chance which was fairly open to him of being acquitted” to use the phrase of Fullagar J in Mraz v The Queen or “a real chance of acquittal” to use the phrase of Barwick CJ in Reg v Storey.  Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen; Reg v Storey; Gallagher v The Queen.  Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen.  The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice.  (Citations omitted)
But, as their Honours later noted at 372 – 373, if the error in the conduct of the trial is fundamental, the question whether the jury would inevitably have convicted does not fall for consideration.  After noting the remarks of Gibbs J in Quartermaine v The Queen (1980) 143 CLR 595 at 600 – 601, they continued:
This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all.  It is one thing to apply the proviso to prevent the administration of the criminal law from being “plunged into outworn technicality” (the phrase of Barwick CJ in Driscoll v The Queen); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted.  The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.  If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice.  Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso: see Reg v Hildebrandt; Reg v Henderson; Reg v Couper.
There is no rigid formula to determine what constitutes such a radical or fundamental error.  It may go either to the form of the trial or the manner in which it was conducted.  There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo.  They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, “Venire de Novo” Law Quarterly Review, Vol 71 (1955) 100, at p 128; Reg v Rose; and, in the House of Lords.  But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence.  In the end no mechanical approach can be adopted and each case must be determined on its own circumstances.  (Citations omitted)
Deane J (at 375) expressed the same principle in these terms:
The proviso to s 6(1) – which empowers the New South Wales Court of Criminal Appeal to dismiss an appeal, notwithstanding that it is of [the] opinion that the point or points raised by the appeal might be decided in favour of an appellant, “if it considers that no substantial miscarriage of justice has actually occurred” – does not negate that principle.  The reason why that is so is that it is simply not open to a court of criminal appeal to dismiss an appeal, in reliance on such a proviso, on the ground that there has been “no substantial miscarriage of justice” in a case where error, impropriety or unfairness has pervaded and affected the trial to an extent where the overall trial ceased to be a fair trial according to law.  In such a case, the verdict of guilty is intrinsically flawed and it is no part of the function of a court of criminal appeal to say that the accused is, in its view, so obviously guilty that the requirement of a fair trial according to law can be dispensed with.  If it were otherwise, the fundamental prescript of the criminal law could be reduced to a mockery and the injustice of a conviction without a relevantly fair trial according to law could be made the occasion for trial by appellate judges who had seen no witnesses, heard no evidence and had no direct contact with the atmosphere, the tensions, the nuances or the reality of the actual trial.  In referring to a “relevantly” fair trial, I have intended to exclude the case where it can be seen that any error, impropriety or unfairness did not prejudice or colour the overall trial or that the residual effect (ie viewed in the context of the overall trial) of any such error, impropriety or unfairness could not have influenced the jury in reaching their verdict on the charges upon which the accused was convicted and in respect of which the appeal to a court of criminal appeal is brought.
These principles were summarised in Glennon v The Queen (1994) 179 CLR 1 by Mason CJ, Brennan and Toohey JJ at 8 and by Deane and Gaudron JJ at 12.  As Deane and Gaudron JJ noted, the proviso does not apply where the accused has been denied a fair trial according to law.  They said:
In our view, it follows from ordinary principles of construction that, as Deane J, indicated in Wilde, the common form proviso can have no application in a case where, overall, there has not been a fair trial according to law.  The principle that an accused person is entitled to a fair trial according to law is fundamental to the criminal law and is, arguably, the most important of all legal principles.  It is simply not possible to discern any intention in the proviso, let alone a clear or necessary intention, that a court of criminal appeal should allow a conviction to stand notwithstanding that, overall, the accused was denied a fair trial according to law.
If proceedings have “so far miscarried as hardly to be a trial at all” or have involved “such a departure from the essential requirements of the law that it goes to the root of the proceedings”, there has not been, overall, a fair trial according to law.  (Footnote omitted)
See also KBT v The Queen (1997) 191 CLR 417 at 423 –424 and at 434 - 435; Subramaniam v The Queen (2004) 79 ALJR 116 at 126.  As was pointed out in Subramaniam (supra), where there has been a departure from the essential requirements of law going to the root of the proceedings, it is unnecessary to consider whether the miscarriage of justice has affected the verdict of the jury and there is no need to weigh up the evidence and to consider whether the jury’s finding was inevitable.  It is unnecessary, therefore, to weigh the later conduct of the trial or to weigh the evidence to determine whether the jury would have reached the same verdict.
21	The supplementary direction occurred at a time when it was clear that the jury was having difficulty in reaching their unanimous verdict.  The judge had given a Black direction.  She had informed the jury that she was ready to assist them if they wished.  As is apparent from the note which the judge received, the jury was seeking that assistance.  That assistance had to be given in the most objective and impartial manner.  Instead, the assistance took the form of a résumé of the prosecution case.  The direction was so prejudicial that it went to the root of the proceedings and resulted in a substantial denial of a fair trial.  The errors associated with the supplementary direction are so fundamental and have caused such a miscarriage of justice that there has not been a fair trial according to law.  There is, therefore, no room for the application of the proviso.
Ground 2 – Denial of Representation
22	The appellant complains that the trial judge failed to accede to his request to have legal representation during the voir dire hearing.  The appellant had informed the trial judge that he did not wish to be represented during that part of the trial when evidence was being presented but only during the voir dire hearing.
23	I agree with the reasons of Bleby and White JJ that the trial judge erred in holding that, unless the appellant was represented throughout the trial, he could not be represented during the voir dire hearing.  I agree also with the substance of their reasons for deciding that the Criminal Law (Representation) Act 2001 was not a bar to the appellant having legal representation during the voir dire hearing only.  However, in my view, the fact that the trial judge initially refused the appellant legal representation has led to a miscarriage of justice.
24	The greater part of the appellant’s submissions concerning the exclusion of the identification evidence were made while the appellant was unrepresented.  It is apparent that the appellant was inexperienced.  He was not aware of the extent to which he could test evidence on the voir dire.  Although he was given an opportunity to examine the witness Durrington on the voir dire, he did not avail himself of that opportunity.  Ms Durrington’s evidence was unsatisfactory and the trial judge gave the jury a strong warning about it.  It cannot, I think, be said that her evidence would not have been excluded if the appellant had been represented.  There were grounds upon which the evidence of other witnesses who claimed to have identified the appellant could have been excluded.  Those witnesses concerned both the alleged presence of the appellant in Brisbane during the convention and later in Adelaide at the time when Dr Tobin was shot.  The evidence of those witnesses was clearly quite crucial to the prosecution case.  The evidence of a number of those witnesses was so weak that it is not possible to exclude the possibility that counsel could have persuaded the trial judge not to admit this evidence on the ground that its probative value was so weak and there were grounds on which it should be excluded.  None of the identification witnesses had known the appellant previously.  The risk of wrongful identification was therefore obvious: Davies and Cody v The King (1937) 57 CLR 170; Festa v The Queen (2001) 208 CLR 593.  The judge’s directions to the jury at the close of the trial highlight some of the defects in the evidence of identification witnesses.
25	Had the evidence of a number of identification witnesses been excluded, the prosecution case would have been that much weaker.  It is, of course, not possible to determine precisely how the absence of such evidence could have affected the jury’s consideration of the issues in the trial.  There were serious questions as to the quality of a good deal of the witnesses as to identification.  The evidence of one witness was excluded by the trial judge.  She was very critical of the evidence of others in the course of her direction.  Had the appellant been legally represented, more of the identification evidence might have been excluded.  There is a real possibility that exclusion of that evidence would have had a material effect upon the reasoning of the jury.  That conclusion is re‑inforced by the fact that the jury took some time to reach its verdict.
26	The right to a fair trial according to law is a fundamental element of the criminal justice system: Jago v The District Court of New South Wales (1989) 168 CLR 23 per Mason J at 29, Deane J at 56, Toohey J at 72, Gaudron J at 75; Dietrich v The Queen (1992) 177 CLR 292 per Mason CJ and McHugh J at 299.  Deane J expressed the same principle in these terms in Wilde (supra) at 375:
The fundamental prescript of the administration of criminal justice in this country is that no person should be convicted of a serious crime except by the verdict of a jury after a fair trial according to law.
There is no absolute right to legal representation, so that the question for the Court to determine is whether the lack of representation resulted in the accused being denied a fair trial and led to a miscarriage of justice: Dietrich at 300, 335 ‑ 336.  In this case the appellant wished to have legal representation of his own choice and at his own, not the public, expense.  He had counsel standing by ready to assist but he was not initially permitted to be represented by him.
27	The advantages to an accused of legal representation are plain.  It is in the best interests, not only of an accused but also of the administration of justice that an accused be legally represented, particularly when the offence charged is serious: Dietrich per Mason CJ and McHugh J at 301 – 302, per Brennan J at 317, per Deane J at 334 – 335 and per Dawson J at 344 – 345.  In my view, the fact that the appellant was denied legal representation when he had legal representation available constituted a grave miscarriage of justice in this trial where the appellant was charged with murder.  The common law accords the appellant the right to a fair trial.  The appellant was denied the ability to exercise that right at an important part of the trial, that is to say, for an important part of the voir dire hearing which dealt with much of the identification evidence.
28	There will be cases when an error or impropriety in the trial will not so colour the overall trial that it causes a miscarriage of justice.  In my view, the refusal to permit the appellant to be represented at this important stage of the voir dire hearing dealing with evidence capable of having a critical bearing on the trial was so grave that the trial was fundamentally flawed.
29	If it be said that this is to adopt an unrealistically high standard for the proper conduct of a fair trial, I would conclude that the failure to allow representation had the consequence that the appellant lost a chance fairly open to him of being acquitted.
30	For these reasons, I would allow the appeal.

BLEBY AND WHITE JJ:
1. 	Background
31	The appellant appeals against his conviction of the murder of Dr Margaret Tobin.  The appeal is by leave on the grounds mentioned in these reasons.
1.1	The prosecution case
32	Dr Tobin was the Director of Mental Health for South Australia.  On 14 October 2002 she was shot four times as she was leaving a lift at the eighth floor of the building where she was employed.  The prosecution case was that the appellant had travelled up in the lift with her and shot her as she was leaving the lift.  The prosecution alleged that the motive for the shooting arose out of Dr Tobin’s involvement in the removal of the name of the appellant from the Register of Medical Practitioners by the Medical Tribunal of New South Wales in 1997.
33	The case against the appellant was wholly circumstantial.  At the time of the alleged offence the appellant resided in Sydney at the home of his parents.  The prosecution case was that the appellant had hired a car in Sydney and had driven to Adelaide in order to kill Dr Tobin.  On the prosecution case there was evidence that he had stayed at a motel at Balranald shortly before the shooting, that he had been in Renmark shortly after and was travelling under an assumed name of David Paes.  The appellant denied that he was in Adelaide when Dr Tobin was killed.
34	There was evidence that the appellant owned pistols which were of the same brand and manufacture as the pistol used to shoot Dr Tobin.  It was also alleged that he possessed ammunition of the same kind as that with which Dr Tobin was shot.
35	The prosecution alleged that the appellant had a strong motive to kill Dr Tobin.  The prosecution case in relation to motive was as follows.  The appellant was a qualified psychiatrist.  For a time during the 1990s, Dr Tobin was his superior officer at a hospital in Sydney.  She became concerned about the mental condition of the appellant and expressed her concern to the Medical Board of New South Wales in July 1993.  This was the first in a series of events which led to the appellant’s name being removed from the Register of Medical Practitioners.  There was evidence from various witnesses to the effect that the appellant blamed Dr Tobin for the role she had played in his deregistration.
36	There was evidence that the appellant kept records relating to other persons who had been involved in the process of his removal from the Register.
37	As a result of the execution of a search warrant there was found at the appellant’s home two sheets of paper with photographs, cuttings and handwriting on them apparently related to personal particulars of people shown in the photographs and mentioned in the cuttings.  These sheets were referred during the course of the trial as the “persons of interest list”.  The persons listed were all doctors with whom the appellant had worked and who had played some part in his deregistration or against whom for some other reason it was alleged that the appellant bore a grudge.
38	There was also found in the appellant’s wallet a used railway ticket with initials and addresses written on the back.  Three of the initials and addresses were said to relate to three of the persons on the persons of interest list.  A section of the ticket large enough to accommodate another name and address had been torn off the bottom.
39	The first search also produced the appellant’s certificate of registration as a medical practitioner, a computer, two Glock pistols of the type used to kill Dr Tobin, spare slides and ammunition and a plan of a Sydney hospital indicating where one of the doctors on the persons of interest list was working in 2002.  A subsequent search produced a Brisbane Street Directory for 2002, a calendar for 2002 with relevant markings on it and a series of photocopied maps showing the way from Sydney to Brisbane along the east coast.
40	All of these items seized were important items of circumstantial evidence in the prosecution case against the appellant.
41	It was also alleged that, in April 2002, some six months before Dr Tobin was killed, the appellant had hired a car and had driven to Brisbane at a time when the annual conference of the Royal Australian College of Psychiatrists was in progress at the Brisbane Convention Centre.  Dr Tobin was attending that conference.  The prosecution alleged that the appellant was seen behaving in a suspicious manner in the vicinity of the conference and that there was evidence to suggest that he was carrying a firearm.  On the prosecution case the appellant also used an assumed name of Chris King on that occasion.  The appellant denied being in Brisbane at the time of the conference.
42	There was evidence from a number of witnesses who purported to identify the appellant in Brisbane and in Adelaide.  The admissibility of much of this evidence was the subject of objection.
1.2 	The defence case
43	The appellant gave evidence at the trial.  He denied any involvement in the killing of Dr Tobin.  He denied being in Brisbane at the time of the conference of the Royal Australian College of Psychiatrists.  He denied being in Adelaide at the time of the alleged offence.  He said that the firearms in his possession at the time of the police search were registered and that he was licensed to use them.  He used them, he said, for target shooting.  He relied by way of alibi on a telephone call made from his home in Sydney on the weekend of the shooting which he claimed could only have been made by him as his parents were overseas at the time.
1.3	A voir dire hearing
44	After the appellant had been arraigned but before the jury had been empanelled, the trial Judge conducted a voir dire hearing to determine applications relating to the admissibility of evidence.  The appellant was represented by counsel retained by him for part of that time.  Further detail of that representation is discussed in relation to Ground 2.  After the jury had been empanelled, the appellant was unrepresented for the rest of the trial.  The appellant conducted his own appeal in this Court.
2.	Ground 1 – Evidence of items found on execution of search warrants
45	The appellant submitted that the trial Judge erred in failing to exclude evidence obtained by the police in the course of the execution of two search warrants at his home on 29 October 2002 and 10 March 2003 respectively.  It was submitted that neither of the warrants was valid or, in the alternative, that neither authorised the searches carried out on those respective dates.  
46	The items which the appellant sought to have excluded from admission into evidence were all those items seized during the searches which were important items of circumstantial evidence in the prosecution case.
2.1	The circumstances of the execution of the warrant on 29 October 2002
47	On Monday 28 October 2002, Sergeant Moss of the New South Wales Police obtained from a Justice of the Peace at the Kogarah Local Court a search warrant pursuant to Part 2 of the Search Warrants Act 1985 (NSW) (“the SWA”).  That warrant, comprising two pages, authorised Sergeant Moss “and all other police officers” to enter, between the hours of 6 am and 9 pm “the premises known as 23 St Georges Crescent, Oyster Bay” and there to search for items of a kind specified in the warrant.  The warrant stated incorrectly the address of the premises which the police wished to search, namely, the place where the appellant lived with his parents.  The correct address was 23 Georges River Crescent, Oyster Bay.  The error was not noted at the time that the warrant was issued.
48	Because the appellant was then suspected of the shooting of Dr Tobin, and because they knew that he was registered as the owner of two Glock 9mm pistols, the police had some concern about his possible behaviour at the time of execution of the warrant.  Accordingly, they resolved to speak privately to the appellant’s mother (“Mrs Gassy”) before executing the warrant.  At about 9.50 am on Tuesday, 29 October 2002, New South Wales Police stopped Mrs Gassy as she was driving to a school appointment.  They explained to her that her son was suspected of the murder of Dr Tobin and that they had a search warrant, and requested her assistance in avoiding any incident associated with its execution.  Mrs Gassy agreed to, and did, co-operate with the police.  After first driving to the school to let persons there know that she would not be able to keep her appointment, she allowed police officers to drive her in her car to her home, arriving there at about 10.15 am.  She then approached the front door with the police officers and opened it.  The police officers then had a conversation with the appellant, who was close to the front door.  The police informed the appellant that they were there to execute a search warrant but that the search could not commence until other police officers, in particular a video operator, had arrived.  Shortly afterwards, the police entered the house without any opposition from the appellant or his mother.
49	It was at about this time that the police realised that the search warrant stated incorrectly the address of the appellant’s home.  Immediate steps were taken to correct the position.  Sergeant Moss telephoned the court at Kogarah and explained the problem.  He travelled immediately to the court with a view to having the error rectified.  When he arrived there, he found that the court had prepared an amended front page of the warrant which contained the correct address of the appellant.  He then “re-swore” the warrant before the Justice of the Peace, who substituted the amended page for the first page of the warrant issued on the previous day.  In its amended version, the search warrant still showed its date of issue as having been 28 October 2002.
50	Sergeant Moss then returned to the appellant’s home.  Execution of the warrant commenced after his arrival at approximately 12.30 pm.  In the period between the ascertainment of the misdescription of the address in the warrant and 12.30 pm, other police officers had remained with the appellant in his home.
51	It will be necessary to return in more detail to aspects of these events in the consideration of the particular grounds of appeal.
2.2	The application for exclusion
52	Initially, the appellant sought an order from the trial Judge precluding the Crown from adducing evidence of the items found by the police in the course of execution of the warrant on 29 October 2002 on the grounds that such evidence was irrelevant, or was evidence of propensity only, or because it had a tendency to be more prejudicial than probative.  However, at the hearing of his application the appellant sought a voir dire hearing in relation to the validity of the warrant and the legality of the search of his home. 
53	The appellant impugned the validity of the search warrant dated 28 October 2002 and of the search of his home on 29 October 2002 on a number of grounds.  They were: 
1.	The search warrant was invalid on its face in that, although referring to the offence of murder, it referred to New South Wales statutory provisions which had no application to a murder committed in South Australia; 

2.	The warrant did not contain a statement by the issuing justice that he was satisfied that the jurisdictional prerequisites for the issue of a warrant had been satisfied; 

3.	The mis-statement of the address on the warrant as issued on 28 October 2002 invalidated the warrant itself, or, in the alternative, meant that the police were not entitled by virtue of that warrant, to enter and search his premises;  

4.	His mother had been subjected to undue pressure by the police and had, in effect, been compelled to co-operate with them;  

5.	The police officer who told his mother, and later the appellant, that the police had a search warrant which they wished to execute at his home had impliedly represented that they had a valid warrant authorising such a search.  It was submitted that that representation was false and that it had had the effect of misleading the appellant and his mother into co-operating with the police.  It was submitted that the police officers had effectively tricked their way into his home;

6.	There were some errors of fact in the affidavit sworn by Senior Constable Lacey which had been relied upon in the obtaining of the warrant from the justice of the peace;  

7.	Procedures required by the SWA had not been followed in that the affidavit relied on before the justice for the issue of the warrant was not an affidavit of the applicant for the warrant (Sergeant Moss) which it was said was required by s 11 of that Act; and 

8.	The Crown should be required to establish that all procedures for the obtaining of the warrant had been followed.

54	The trial Judge ordered that evidence be heard on the voir dire in relation to the police conduct involving Mrs Gassy, and in particular, to ascertain whether she had been in any way misled or subjected to inappropriate pressure.  The trial Judge declined to hear evidence on the voir dire as to whether the police had effectively tricked their way into the home by pretending that the warrant was valid.
55	At one stage, and at the request of the appellant, a subpoena directed to the Kogarah Local Court was issued requiring the production of the records held by it relating to the issue of the search warrant on 28 October 2002, the amendment on 29 October 2002 and the search warrant which was issued on 10 March 2003.  However, shortly afterwards, the appellant informed the trial Judge that he wished the subpoena to be cancelled, and effect was given to that request.  The appellant informed the Judge that apart from the evidence of his mother, he did not intend to adduce any other evidence “on the warrant question”.
56	The appellant, who was at that time unrepresented, led evidence from his mother.  The Crown then led evidence from Inspector Leonard and Sergeant Moss from the New South Wales Police and from Sergeant Kinsman from the South Australian Police.  Inspector Leonard was the police officer in charge of the execution of the warrant.  Sergeant Kinsman was an officer involved in the investigation of the death of Dr Tobin.
57	After the evidence of the police officers (other than that of Sergeant Moss) had been completed, the appellant (then represented by counsel) also submitted that the warrant executed on 29 October 2002 was invalid for some further reasons.  It was submitted that the effect of the events on 29 October 2002 before the justice meant either that a fresh warrant had been issued on that day or, alternatively, that the warrant issued on 28 October 2002 had been amended.  In the former case, it was submitted that the warrant was invalid because it showed an incorrect date of issue, namely, 28 October 2002.  In the latter case, the warrant was not endorsed in any way to show that it had been amended.  In addition, it was submitted that the manner of execution of the warrant was unlawful because, although the SWA required the search warrant to be executed between the hours of 6 am and 9 pm the police officers executing the warrant had in fact remained on the premises after 9 pm.
2.3	The decision of the trial Judge
58	In a ruling delivered on 17 June 2004, the trial Judge declined to exclude evidence of the items found in the execution of the search warrant on 29 October 2002.  Her Honour concluded that the search warrant was not attended by illegality or impropriety.  Following the jury’s verdict, the trial Judge published detailed reasons for her ruling.  Those reasons can be summarised as follows:
1.	Although in some circumstances the taking of evidence on a collateral challenge to the validity of a search warrant may be appropriate, there was nothing in the evidence adduced by the appellant which raised any real question as to the sufficiency of the material before the issuing justice to indicate that a voir dire on that topic was appropriate.  In this respect, the trial Judge applied the decision of the Full Court in Question of Law Reserved on Acquittal (No 5 of 1999).

2.	The Crown was not required to prove compliance with the various provisions of the SWA for the issue of a warrant.  It was for the appellant to show that there were serious questions as to the legality of the issue or execution of the warrant.  The appellant had not established that such questions arose.

3.	The warrant issued on 28 October 2002 was not open to attack on the basis of failure to recite satisfaction with jurisdictional factors, because its form complied with the legislative requirements as to its contents.  In this respect the Judge referred to Ousley v The Queen.

4.	The search warrant as amended on 29 October 2002 was not invalid on its face, whether because of a failure to demonstrate on its face that all prerequisites to the grant of a warrant had been met, or because of the erroneous reference to the provisions of New South Wales legislation.

5.	The misdescription of the address was an error of form and not of substance.

6.	There was no impropriety in the police conduct in relation to Mrs Gassy.  The Judge found that Mrs Gassy had voluntarily agreed to assist the police (whose evidence on this issue she described as impressive).

7.	The substitution of an amended first page on 29 October 2002 was not an unlawful or improper method of correcting the error in the statement of the address.

8.	Even if the police had acted unlawfully or improperly so as to enliven the Bunning v Cross discretion, that discretion should not be exercised so as to exclude any of the evidence of items seized at the search.

2.4	The arguments on appeal
59	Pursuant to the grant of leave, on appeal, it was submitted that the trial Judge should have found that the search warrant dated 28 October 2002 was invalid because of the misdescriptions appearing on its face, because jurisdiction was not disclosed on the face of the warrants and because the procedures before the Justice of the Peace at Kogarah on 29 October 2002 did not result in the issue of a valid warrant on that date, or, alternatively, a valid amendment of the warrant issued on 28 October 2002.  In addition, it was submitted that if the search warrant dated 28 October 2002 in the form in which it was at the time of the interception of Mrs Gassy was invalid then the police had impliedly, but wrongly, represented to Mrs Gassy and later to the appellant that they did hold a valid warrant.
2.5	The Search Warrants Act 1985 (NSW)
60	Before addressing those submissions, it is appropriate to identify relevant provisions of the SWA.  The Act abolished any common law power for the issue of warrants authorising entry into premises for the purpose of searching for stolen goods (s 24).  It established a statutory scheme for the issuing of warrants permitting the entry onto premises for the search of things connected with offences, or which had been stolen or otherwise unlawfully obtained.   Section 5 of the SWA permits a member of the Police Force to apply to an authorised justice for a search warrant if that member has reasonable grounds for believing, amongst other things, that there is in any premises a thing connected with “a particular indictable offence”.  The expression “indictable offence” is defined to include an act which if done in New South Wales would constitute an offence punishable on indictment.  Section 6 provides as follows:
An authorised justice to whom an application is made under section 5(1) may, if satisfied that there are reasonable grounds for doing so, issue a search warrant authorising any member of the police force:
(a)	to enter the premises; and
(b)	to search the premises for things of the kind referred to in section 5(1).
61	Section 7 authorises a member of the police force executing a search warrant to seize, amongst other matters, the thing or things mentioned in the warrant.  Section 9 provides that a person is not, without reasonable excuse, to obstruct or hinder a person executing a search warrant.
62	Section 11 provides:
(1)	An application for a search warrant must be in writing in the form prescribed by the regulations and must be made by the applicant in person.
(2)	An authorised justice must not issue a search warrant unless the information given by the applicant in or in connection with the application is verified before the authorised justice upon oath or affirmation or by an affidavit.
(3)	An authorised justice may administer an oath or affirmation or take an affidavit for the purposes of an application for a search warrant.
(4)	This section does not apply to a telephone search warrant.
63	Section 12A stipulates the information which must be included in an application for the issue of a warrant.  Section 13 requires an authorised justice who issues a search warrant to cause a record to be made of all relevant particulars of the grounds relied upon to justify the issue of the warrant.  Regulations made under that section require the keeping of records relating to the issue of the warrant for a period of six years and allow, with some qualifications, for inspection of the records by an occupier of the premises to which the warrant relates.
64	Section 14 provides that:
[a] search warrant shall be in or to the effect of the prescribed form.
65	A feature of the scheme established by the SWA is the requirement that an occupier of the premises to be searched must be provided, at the time of execution of the warrant, with a notice which is to contain important information about the warrant, the circumstances in which it was issued, the powers which may be exercised in reliance on it, and the rights of a person who is affected by the execution of the warrant.  Section 15 requires the authorised justice to prepare and furnish an “occupier’s notice” to the person who is issued with the search warrant.  Section 15(2) specifies matters to be included in the occupier’s notice.  By s 15(3), a person executing a search warrant is to serve a copy of the occupier’s notice on a person in the premises at the time of entry or as soon as practicable thereafter.
66	Section 15A provides:
(1)	One of the persons executing a search warrant must, before any of the persons executing the warrant enters the premises:
(a)	announce that the person is authorised by the search warrant to enter the premises; and
(b)	give any person then on the premises an opportunity to allow entry into or onto the premises.
(2)	A person executing a search warrant is not required to comply with this section if the person believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the search warrant is not frustrated.
67	Section 16 provides that a person executing a search warrant shall produce the warrant for inspection by an occupier of the premises if requested to do so by that occupier.  Finally, s 23 provides that:
A search warrant is not invalidated by any defect, other than a defect which affects the substance of the warrant in a material particular.
68	It is to be noted that, with the exception of s 14, and possibly s 6, the Act does not contain any prescription as to the content of a search warrant issued under the Act.  This contrasts with the specification in s 12A of the information to be included in the application for the warrant and with the specification in s 15(2) of the matters to be included in the notice to the occupier.
69	Regulations pursuant to the New South Wales Act were made in 1999.  Those regulations replaced earlier regulations promulgated in 1994 which in turn replaced regulations which had been in force from the commencement of operation of the SWA.  The Search Warrants Regulation 1999 (as had its predecessors) contained in Form 3 the prescribed form of warrant.
2.6	The search warrant dated 28 October 2002
70	The warrant dated 28 October 2002 in its original form was not tendered on the voir dire.  The warrant as corrected on 29 October 2002 was tendered.  The trial Judge accepted that the only difference between the two documents was in the address.  The warrant tendered is in the form prescribed by the Search Warrant Regulation 1999.  We set out relevant parts of the warrant.
SEARCH WARRANT
Search Warrants Act, 1985
(Part 2 Warrant)

	This search warrant expires at 4.40 pm on the 31/10/2002 and must not be used after that time.

	…

	On the 28/10/2002, J. WISEMAN (name of authorised justice) a justice authorised and empowered to issue search warrants under Part 2 of the Search Warrants Act, 1985, granted this search warrant authorising

	Matthew Robert MOSS a Detective Senior Constable of Homicide Crime Team (the applicant) a police officer and all other police officers:
1. To enter between the hours of 6am to 9pm the premises known as 23 St Georges Crescent, OYSTER BAY being a Dwelling House and
2. There to search those premises for the following things: [there followed a long specification of items, the description of several of which was delineated by their reference to “Jean Gassy” or simply to “Gassy”.] being things that the police officer has reasonable grounds for believing:
(a) are connected with the offence(s) of: Murder (Section 18 of 40/1900) Section 2, Search Warrants Act 1985.

In executing this search warrant the applicant may exercise the powers provided by the Search Warrants act [sic], 1985.
These include the power to:
(a) Enter the named premises
(b) Search for the things mentioned in this warrant
(c) Use any persons necessary to assist in the search
(d) Use any force that is reasonably necessary to enter the premises and to open any receptacle on those premises for the purposes of the search
(e) Search any persons on the premises who are reasonably suspected of having on them a thing mentioned in this warrant.
(f) Arrest any persons on the premises who are reasonably suspected of having on them things mentioned in this warrant
(g) Remove or guard anything found pursuant to this warrant and to hold those things until directed by a Court or Magistrate.

Signed by me J. WISEMAN [and Mr Wiseman’s signature then appeared]

Date: 28/10/2002

[Notes]
(1)	…
(2)	…
(3)	Where the application is made in person or by facsimile transmission, the authorised justice should sign and date the warrant and initial any corrections.  In the case of a telephone search warrant in circumstances were facsimile facilities are not available, the justice should use this form as a copy of the terms of the warrant and the applicant should complete the warrant in the terms dictated by the justice then sign and date the warrant.

NOTE the applicant must deliver this search warrant when reporting to the issuing justice within 10 days of the execution, or if not executed, within 10 days after the expiry of the warrant.

2.7	Disclosure of jurisdiction on the face of the warrant
71	The appellant submitted that the search warrant dated 28 October 2002 failed to show on its face (as it was contended was required by the common law) that each of the jurisdictional requirements for its issue had been satisfied.  In particular, the appellant pointed to the fact that the warrant did not record on its face that an application in writing for its issue had been made (s 11(1)), or that the application had been made in person (s 11(1)), or that the information given by the applicant in connection with the warrant had been verified on oath (s 11(2)), or that a record had been made by the authorised justice of all relevant particulars of the grounds relied on for the issue of the warrant (s 13(1)).  Nor did the warrant record on its face the satisfaction of the authorised justice that there were reasonable grounds for the issue of the warrant (s 6), or that the application for the warrant had contained the information specified in s 12A, or that the authorised justice had prepared and issued an occupier’s notice (s 15(1)).
72	In support of the submission that the common law required the warrant to show on its face that the jurisdictional requirements for its issue had been satisfied, the appellant relied on passages from the judgments in Ousley v The Queen.  The question in issue in Ousley was the validity of a warrant issued by a member of the Supreme Court of Victoria under the Listening Devices Act 1969 (Vic) which, whilst in the form of warrant prescribed by the relevant Supreme Court Rule, recited only one of the two matters of which the judge had to be satisfied before issuing a warrant authorising police officers to use a listening device.  Three members of the Court (Toohey, McHugh and Gummow JJ) held that s 4A of the Listening Devices Act stated exhaustively the matters required to be specified in the warrant for the use of a listening device.  Further, as the warrant was issued in accordance with the form prescribed by the Supreme Court Rule, the circumstance that satisfaction of one jurisdictional fact only was shown on the face of the warrant did not give rise to the inference that the issuing judge had failed to satisfy himself of a second jurisdictional fact necessary for the issue of the warrant.
73	The appellant referred to the following passage in the judgment of McHugh J:
… [s]ubject to any statutory provision to the contrary, a warrant issued by a subordinate authority is bad unless it is apparent that it was issued by a person with jurisdiction to issue it or if it fails to record the ground or grounds upon which it was issued  or is so vaguely worded that a person affected by it cannot know the object of the search or fails to show that an offence has been committed or is suspected of having been committed or fails to recite the information which was the basis of its issue or fails to state an essential basis of jurisdiction or fails to specify the person who is to execute the warrant or indicates that the issuing authority has not addressed the right question or, in the case for search warrant, fails to specify precisely the place to be searched.  [Emphasis added.]
74	There is a passage to similar effect in the judgment of Gaudron J:
In the case of warrants issued by Magistrates or inferior courts or tribunals, it is necessary for them “to shew their authority on the face of them by direct avernment or reasonable intendment”:  Gosset v Howard [1845] 10 QB 411 at 452-3.  There is no such requirement to warrants issued by a superior court.
75	However, contrary to the submission of the appellant, Ousley is not an authority for the proposition that the common law requires in all cases that a warrant of the kind presently being considered should show on its face that the jurisdictional requirements for its issue have been satisfied.  Of the remaining members of the Court, two (Toohey and Kirby JJ) did not consider it necessary to express any view about the matter.  The remaining member, Gummow J, doubted the continued operation of the common law principle upon which the appellant relies.  Gummow J considered that the common law principle, developed at a time when it was understood that the issue of a warrant was a judicial act may no longer be applicable now that it is established that the issue of a warrant under legislation such as the Listening Devices Act 1969 (Vic) involves an exercise of power which is essentially administrative in nature.  In that circumstance, Gummow J considered that the distinction between inferior and superior courts, and the operation of the presumption of regularity in relation to acts of superior courts but not those of inferior courts was not of assistance.  Rather, in his view, the principle to be applied is that the validity of the administrative act or decision and the legality of steps taken pursuant to it are presumed until the act or decision is set aside in appropriate proceedings.
76	It is not necessary, in our opinion, in the present case to consider whether the common law principle continues to apply.  Even if it does, the requirement that jurisdiction be disclosed on the face of the warrant is subject to any statutory indication to the contrary.  It is, therefore, necessary to consider whether the SWA requires, explicitly or by implication, that a warrant state on its face satisfaction of all the jurisdictional prerequisites for its issue.
77	As already noted, s 14 of the SWA prescribes that a search warrant “shall be in or to the effect of the prescribed form”.  The warrant dated 28 October 2002 was in the form of the prescribed form.  Mr Brebner QC, who appeared for the respondent, submitted that that was sufficient to establish the validity of the warrant.  Mr Brebner submitted that Ousley v The Queen was authority for the proposition that where a warrant complies with the form prescribed by an enabling act, the warrant is valid notwithstanding that it does not contain a recital that all of the jurisdictional acts required for its issue have been satisfied.  We do not regard Ousley as being authority for that proposition.  As already noted, the warrant being considered in Ousley had been issued by a member of the Supreme Court of Victoria and was in the form specified in the Rules of that Court for such a warrant.  That form provided for a recitation of compliance with only one of the two statutory prerequisites for the issue of the warrant.  A majority of the Court rejected the argument that the warrant was invalid because of its failure to recite satisfaction with both the statutory requirements or because recitation of satisfaction of one, but not the other, gave rise to an implication that the issuing judge had not been satisfied of the second.  However, none of the majority judgments found that the warrant was valid simply because it was prescribed form.  Rather, each attached significance to the fact that the Listening Devices Act stipulated matters which were to be included in the warrant.  Those matters did not include a recitation that the jurisdictional requirements had been satisfied.  It was held that in the context of the Victorian statute the legislative statement as to the content of the warrant should be regarded as exhaustive of the matters which were required to be included in it.
78	Compliance with the prescribed form was thought relevant by Toohey and McHugh JJ because it explained why there had been a partial recitation only of the jurisdictional factors.  The use of the prescribed form rebutted the inference which might otherwise arise that the express reference to one requirement meant that the other had been ignored.
79	There are a number of features of the SWA which distinguish it from the Listening Devices Act 1969 (Vic) which was considered in Ousley.  In the first place, the SWA is concerned with a search warrant and not a listening devices warrant.  There are material differences between the two types of warrant.  In the second place, as already noted, the Listening Devices Act did contain within the Act itself a specification of the matters which had to be included in the warrant.  For these reasons alone, the decision in Ousley is not decisive of the appellant’s present submission.
80	In our opinion, there are three features of the scheme for issue of search warrants in the SWA which indicate that a recitation of satisfaction of the jurisdictional requirements is not necessary in order that a warrant be valid.  The first is s 14 itself which requires the warrant to be “in or to the effect of the prescribed form”.  Whilst the SWA leaves the content of the warrant to be prescribed by the Executive, it is not readily to be supposed that adherence to the form prescribed may, in the absence of any inconsistency between the form prescribed and the enabling statute, nevertheless result in invalidity of the warrant on the ground of some deficiency in form.  It is significant that the use of the prescribed form is stipulated by the SWA itself.  It is not a case of the SWA leaving it to the Executive, pursuant to the general regulation making power, to prescribe a form and to prescribe its use.  Further, the argument of the appellant, if accepted, would mean that not only must the warrant be to the effect of the prescribed form, it must also give effect to the common law even though that would require inclusion of additional information and may even alter the “effect” sought to be achieved by the prescribed form.  In addition, that would be to add a further requirement to that which is required by the SWA.
81	The second and third features of the scheme established by the SWA suggesting that the common law requirements have been abrogated are the requirements of s 13 and s 15.  Section 13(1) requires the authorising justice issuing a warrant to cause a record to be made “of all relevant particulars of the grounds the authorised justice has relied on to justify the issue of the warrant”.  It has been held by the Full Court in New South Wales that a failure by the authorising justice to comply with the obligation contained in s 13(1) has the effect of rendering the search warrant invalid.  Section 13 has the effect of requiring the authorised justice to record, in documentary form, the grounds which he or she regarded as reasonable and which justified the issue of the warrant.  In this way, one of the rationales for the common law requirement is satisfied.  By resort to the record it can be determined whether or not the issuing justice was satisfied, as required by s 6 of the SWA, that there were reasonable grounds for its issue.  In fact, not only is the common law requirement satisfied, it is extended as the issuing justice must also record particulars of the grounds which were relied upon.
82	The provision in s 15 of the SWA for an occupier’s notice to be provided to the occupier of premises the subject of the search is also important in the present context.  Section 15 prescribes in some detail the contents of the occupier’s notice.  In addition to being “in or to the effect of the prescribed form”, the occupier’s notice is to specify:
(i)	the name of the person who applied for the warrant;
(ii)	the name of the authorised justice who issued the warrant;
(iii)	the date and time when the warrant was issued; and
(iv)	the address or other description of the premises the subject of the warrant;
and further, is to contain a summary of the nature of the warrant and the power conferred by the warrant.
83	Other than in limited circumstances, the person executing a search warrant is to serve the occupier’s notice on the occupier of the premises at the time of entry into or onto the premises or as soon as practicable thereafter.
84	Whilst the content of the prescribed form of occupier’s notice cannot govern the meaning of the SWA, it is relevant to note that the prescribed form appearing in the Search Warrants Regulation 1999 (Form 5) provides for considerable detail to be provided to the occupier including, under the heading “Basis for the Issue of the Warrant”, a statement that the warrant was granted on the basis that the authorised justice found that there were reasonable grounds for issue of the warrant and, in particular, that the applicant police officer had reasonable grounds to believe that there are on the premises things connected with a specified offence.  It is also relevant to note that it is the authorised justice who is to prepare the occupier’s notice and who is to furnish it to the applicant for the warrant.
85	Thus, the occupier’s notice serves, amongst other things, another of the purposes sought to be achieved by the common law principle, namely, informing the occupants of the premises to be searched at the time of the execution of the warrant, of the basis for the issue of the warrant.
86	In our opinion, when ss 13, 14 and 15 of the SWA are considered in combination, a reasonable inference arises that the operation of the common law principle in question has been displaced.
87	As the SWA is New South Wales legislation, it is appropriate to consider whether the question raised by the appellant has been considered in that State.  So far as we can tell, the question has not been raised directly for consideration.
88	In Warner v Elder,  Temby AJ considered the validity of a warrant issued pursuant to the Royal Commission (Police Service) Act 1994 (“The Royal Commission Act”).  By s 23 of that Act, Part 3 of the SWA (which includes ss 13, 14 and 15) was made applicable to warrants issued under the former Act.  This meant that a warrant issued pursuant to the Royal Commission Act had to be in the form prescribed for the purposes of the SWA.  Temby AJ held the warrant invalid because of the width of the description of the matters which could be seized.  Properly construed, it authorised the seizure of anything found in specified premises, and not just items which might relate to the subject matter of the Royal Commission Inquiry.  It was bad on its face for not specifying with sufficient precision what could be seized under it.  In concluding that a valid warrant had to limit the items for which search could be made to the subject matter of the Royal Commission Inquiry, Temby AJ referred to the common law requirement for the offences for which the search related to be stated in the warrant,  and said:
In relation to common Search Warrants, for example issued under s 5 of the Search Warrants Act enabling seizure of things with a view to proving offences, the courts have required that the warrants demonstrate on their face that conditions precedent to their issue have been met and also the possible offences with respect to which search and seizure have been sanctioned.  [Emphasis added.]
Temby AJ did not identify any authority in which it had been held that a warrant issued pursuant to the SWA had to demonstrate on its face that the conditions precedent to its issue had been met.  The defendant in Warner submitted that the lack of specificity did not matter as the warrant was in the form then prescribed by the Search Warrant Regulation 1994, use of which was mandated by s 14 of the SWA.  As then prescribed, that form did not require any delineation of the matters which could be seized by reference to any offence.  The possibility that the occupier’s notice may serve the purpose of providing that information to the occupier, rather than the warrant itself, was also raised.  Temby AJ rejected the defendant’s submission and the possibility that the occupier’s notice served the purpose which had previously been fulfilled by inclusion of material on the face of the warrant itself.  He held that, despite the stipulation that a prescribed form should be used, the common law requirements had not been changed.
I am satisfied that the law as to what a warrant must contain has not been changed by the combination of s 14, s 15 and s 16 of the [SWA], cl 5 and cl 6 and Forms 5 and 6.  I say that because the source of authority for entry search and seizure is the warrant itself, all involved will be or at least should be aware of its terms and just what it authorises, and in the nature of things any lack of information will not be supplied by the occupier’s notice simply because not all need to be aware of what it contains …  In my opinion it is essential under the legislation being considered that the warrant on its face provides full information to those executing it as to purpose, that is to say what they are seeking in relation to what matter of inquiry.  That is manifestly lacking here.  In my opinion these warrants are bad for that reason also.  (Emphasis added)
89	On appeal the decision of Temby AJ was upheld, principally by reference to the provision of the Royal Commission Act.  The obiter comments of Temby AJ in relation to the SWA were addressed obliquely.  Having dealt with the appellant’s primary argument, based on the provisions in the Royal Commission Act, Priestley JA (with whom Handley and Powell JA agreed) concluded his judgment with the following:
To the extent that further arguments were relied on, they were those put before Temby AJ who dealt with them in a way which in my opinion was correct.  In view of the way the argument went in this Court it is unnecessary to say anything further about those arguments.
90	Thus, both at first instance and on appeal, the decisions in Warner appear to provide some support for the submission that, despite the stipulation of use of the prescribed form in s 14 of the SWA and the requirements of s 13 and s 15, a warrant issued pursuant to the SWA should demonstrate, on its face, the jurisdictional facts for its issue.
91	In Carver v Clerk of the Court, Local Court at Blacktown Black AJ said that he regarded the Full Court decision in Warner as confirming the view of Temby AJ that the common law had not been changed by the provisions of SWA and the forms forming part of the Search Warrant Regulation.  In Dover v Ridge Dunford J, although expressing reservations with the proposition that a warrant which complied precisely and completely with the prescribed form was invalid, regarded himself as bound by the decision of the Full Court in Warner to hold that a search warrant which did not specify any offence (as was required by the common law) was invalid.  Dunford J accepted that the Full Court decision in Warner was consistent with other decisions of the Court which had proceeded on the basis that, except where expressly modified by the SWA, the common law rules had not otherwise been abrogated.
92	A similar conclusion was expressed by Taylor AJ in Douglas v Blackler who, after reviewing the authorities to which we have referred above, said:
These authorities require a finding that the warrant is invalid notwithstanding the difficulty with the proposition that a warrant which complies precisely and completely with the prescribed form authorised by the statute is invalid.
93	In each of Carver, Dover and Douglas, the warrant was held invalid because it failed, in accordance with the common law requirements, to specify any offence to which the search authorised by the warrant related.  Each held in effect that the requirement to use the prescribed form did not abrogate the common law requirement that an offence be specified in the warrant.  Such a specification was necessary in order that the power conferred by the warrant not be impermissibly broad.  With the exception of Temby AJ at first instance in Warner, none of the decisions of the New South Wales Supreme Court addressed directly the question which arises in this case.  The comments of Temby AJ were not essential to his determination of the issue in Warner.  The question of whether the common law requirement that the offence or offences to which the warrant relates should be shown on the warrant is of continuing application involves different considerations than does the question of whether satisfaction of the jurisdictional requirements should be shown on the face of the warrant.  Although persuasive, the New South Wales decisions are not binding on this Court.  We do not regard them as indicating that this Court should not give effect to its own conclusion that the scheme in relation to search warrants established by the SWA, and in particular by ss 13, 14 and 15, has abrogated the common law principle (assuming that it still applies) that jurisdiction is to be disclosed on the face of the warrant.  Accordingly, in our opinion, neither the warrant dated 28 October 2002 nor the warrant issued on 10 March 2003 is invalid on account of its failure to state on its face that the jurisdictional requirements for its issue had been satisfied.
2.8	The statement of the offence
94	The appellant submitted that the statement of the offence in the warrant dated 28 October 2002 rendered it invalid.  The warrant authorised the police to search for things which the police officers had reasonable grounds for believing were “connected with the offence of Murder (s 18 of 40/1900).  Section 2, Search Warrants Act 1985”.
95	Act No 40 of 1900 is the Crimes Act (NSW).  Section 18 is the provision in that Act establishing the crime of murder.  As the murder of Dr Tobin occurred in South Australia, it was submitted that this New South Wales provision could have no application to it.  The reference to s 2 of the SWA was, it was submitted, meaningless in this context as the subject matter of s 2 is the date of commencement of operation of the SWA, a date which has long since passed.
96	There are at least two reasons why this argument should be rejected.  First, the warrant did specify an offence, namely, murder.  The addition of the correct statutory provisions relating to that offence was not necessary in order to identify more completely the offence which was the subject matter of the warrant.
97	Secondly, the specification of provisions should, in our opinion, be understood as an attempt, albeit a mistaken attempt, to demonstrate on the face of the warrant the provisions which permitted a warrant to be issued in New South Wales under the SWA in respect of the offence of murder committed in another State.  A warrant may be issued under the SWA to permit a search for a thing connected with a “particular indictable offence”.  The expression “indictable offence” is defined in s 5(2) of the SWA to include “any act or omission which if done, or omitted to be done, in New South Wales would constitute an offence punishable on indictment”.  Hence we think it reasonable to construe the reference to s 18 of 40/1900 as indicating the provision which makes murder punishable on indictment in New South Wales.  The reference to s 2 of the SWA was a mistaken attempt to refer to s 5(2) and its definition of “indictable offence”.  In short, the warrant specifies the offence of murder.  Although the offence occurred in South Australia, a warrant could be issued in New South Wales because murder is an indictable offence in New South Wales (s 18 of 40/1900), and s 5(2) defines an “indictable offence” in respect of which a warrant may be issued to include such an offence.  Viewed in this way, the reference to s 2, rather than s 5(2), of the SWA is of no consequence.  It is a defect to which s 23 of the SWA refers, it not being a defect which affects the warrant in a material particular.  Accordingly, in our opinion, the warrant should not be held invalid on this account.
2.9	The misstatement of the address
98	It was submitted that the misdescription of the address in the search warrant when first issued meant that the warrant was invalid or, at least, did not authorise a search of the appellant’s premises at 23 Georges River Crescent, Oyster Bay.  It will be recalled that the warrant referred to premises at 23 St Georges Crescent, Oyster Bay.
99	It is clear enough that a failure to specify with sufficient precision the place to be searched will invalidate a search warrant.  However, not every defect in the description of premises to be searched will invalidate a warrant.  The general approach to be adopted was stated in Ousley by Kirby J as follows:
Courts properly tend to take a practical rather than an unduly technical view of the challenges to warrants permitting intrusion into the property and privacy of those subject to them.  But when a real defect can be demonstrated, courts err, rightly in my view, on the side defensive of the fundamental rights of the individual affected.
100	A search warrant should state with reasonable particularity the premises which may be searched in order that the police officers executing it may know the premises which they are entitled to enter and search, and so that the occupier may know that it is entry and search of his or her premises which is authorised by the warrant.  The description should appear on the face of the warrant so that any police officers involved in its execution may, without reference to acquired or esoteric knowledge of the circumstances of the investigation to which the warrant relates, or of the person suspected of the offence, determine the premises which may be searched.
101	Minor errors in the description of the premises to be searched will not make the warrant invalid or ineffective if those premises can still be identified with reasonable certainty.  There are, of course, many ways by which premises can be described including by address, description, ownership or by reference to geographic location.  Whether the premises have been sufficiently described will often be a question of fact and degree.
102	Once it be accepted that the premises named in the warrant must be capable of being identified objectively, it becomes difficult, in our opinion, to conclude that the premises named in the warrant dated 28 October 2002 in its original form sufficiently identified the appellant’s premises.  Strictly speaking, that warrant did not identify any premises at all as it was common ground that there was no thoroughfare in Oyster Bay named St Georges Crescent.
103	A person reading the warrant and knowing that fact would naturally assume that the warrant was intended to refer to some premises and that there had been a misdescription.  However, an objective consideration would not assist in identifying the premises to which reference was intended.  The mistake could be in the name of the street (St Georges), the description of the thoroughfare (street, road, crescent, etc) or in the name of the suburb.  Recourse to a street directory shows that there are two suburbs of Sydney which have a thoroughfare named St Georges Crescent, two suburbs with a thoroughfare named St George Crescent, and that there are seven other suburbs with a thoroughfare including the name St Georges.  In addition, there are numerous suburbs which have a thoroughfare the name of which includes the word “George” or “Georges”.  Even if the reader assumed that the suburb of Oyster Bay had been named correctly, that would not assist either as it was common ground that Oyster Bay has both a Georges River Crescent and a Georges River Road.
104	Mr Brebner QC, who appeared for the DPP, argued that the deficiency could be made good by the police officers executing the warrant making use of their knowledge that the appellant did in fact live at 23 Georges River Crescent, Oyster Bay.  In addition, it was submitted that, as a number of the items for which search was authorised were delineated by reference to the appellant’s name, that supported the inference, on an objective basis, that the premises the subject of the warrant were those at which the appellant lived.  We would reject each of those contentions.  The identification of the subject premises should not depend on the nature and extent of the esoteric knowledge of the police officers who may be executing it.  The effect of Mr Brebner’s submissions, if accepted, is that the warrant granted to the police officers a measure of discretion in the selection of the premises to be searched.  The warrant could be executed at any address similar to that named in the warrant at which the police officer believed, rightly or wrongly, that the appellant resided.  Furthermore, it could mean that the identification of the premises to be searched may depend on knowledge acquired for the first time only after the issue of the warrant, or on knowledge which was different from that supplied to the issuing justice when the warrant was obtained.  To our minds these factors illustrate the lack of sufficient particularity in the description of the premises in the warrant.
105	In short, in our view, the premises named in the warrant dated 28 October 2002, when first issued, were non-existent.  The premises intended to be named could not be reasonably ascertained from the warrant.  The police may have intended to obtain a warrant permitting them to search the premises at which the appellant resided but the warrant they obtained did not, in its original form, have that effect.  We disagree, therefore, with the conclusion of the trial Judge that the error in the address was one of form and not of substance.  In our opinion, when first issued, the warrant dated 28 October 2002 did not authorise a search of 23 Georges River Crescent, Oyster Bay.
2.10	The procedures adopted on 29 October 2002
106	The appellant submitted that it was not open to the authorised justice to remedy the deficiency in the address in the warrant in the way in which he did on 29 October 2002.  It will be recalled that Mr Wiseman simply replaced the first page of the warrant issued the previous day with an amended page, showing the address of the Gassy home, and that was then “re-sworn” by Sergeant Moss.
107	The appellant’s submissions were put in the alternative.  If what occurred on 29 October 2002 was to be characterised as the issue of a fresh warrant, then the processes required by the SWA for the issue of a new warrant had not been followed, as there had not been an application in writing as required by s 11(1) and the information given by Sergeant Moss in connection with that warrant had not been verified on oath as required by s 11(2).  Further, it was submitted that the “new” warrant was defective in that it showed on its face that it had been issued on 28 October 2002, whereas in fact it had been issued on 29 October 2002.  In addition, it still suffered from the other defects of which the appellant complained, namely, failure to state the existence of the jurisdictional factors and the error in the description of the offences on its face.
108	In the alternative, if what was done on 29 October 2002 was to be characterised as an amendment of the warrant issued on 28 October 2002, it was submitted that such amendment was not authorised, either because there was no power to amend a warrant at all or, if there was, because such a power could not be exercised after the warrant had been used as, it was submitted, had occurred in this case.
109	A somewhat similar issue was considered by the Full Federal Court in Flanagan v Commissioner of the Australian Federal Police.  A warrant was issued by a judge of the Federal Court pursuant to the Telecommunications (Interception) Act 1979 (Cth).  Although issued on 1 June 1993, the warrant bore the date 1 June 1992.  It also authorised interception with the telecommunications service numbered 018 507493 rather than, as was intended, the service numbered 018 507492.  On the following day, 2 June 1993, an application was made to the same judge for the purpose of overcoming the two typographical errors. The applicant relied on the same written application and supporting affidavit as had been used on 1 June 1993.  A new form of draft warrant was supplied to the judge with the errors corrected.  The judge issued the warrant in those terms.  The validity of that warrant was impugned in the proceedings before the Full Federal Court.  The Court held that the events of 1 and 2 June 1993 leant themselves to two possible legal analyses.  On the first analysis, the warrant bearing the date 1 June 1992 was a nullity.  The judge was empowered to issue an interception warrant in respect of a “telecommunications service”.  As it was accepted that there was no telecommunications service answering the description in the warrant when first issued, the warrant was a nullity in the sense that it was not a warrant issued under the Telecommunications (Interception) Act at all.  Alternatively, if not a nullity, then it should be held that the Telecommunications (Interception) Act 1979 (Cth) carried with it an incidental power to do what was necessary to overcome clerical mistakes or accidental slips or omissions, at least for the purpose of ensuring that a warrant issued, but not yet acted upon, authorised interceptions as intended and had legal efficacy.  The errors on the warrant in question were of that kind.  It was not necessary for the Court to determine which of these two analyses was appropriate as on either analysis it held that the applicant’s challenge should fail.
110	In the present case, it can be said that the warrant, when first issued on 28 October 2002, was a nullity:  there was no address which answered the description in that warrant and no other address could reasonably be identified.  Thus, on the reasoning in Flanagan, on 29 October 2002 the issuing justice was entitled to rely upon the application made in connection with the warrant issued on 28 October 2002 and the affidavit supplied in support of that warrant.  This would overcome the point raised by the appellant that a fresh warrant had been issued without an application having been made.  Apart from the failure to correct the date on the warrant, it was not suggested at the trial, or on appeal, that there had been any other defect in the process adopted on 29 October 2002, eg, a failure by the justice to make a record of the grounds upon which the warrant had been issued (s 13), or to prepare and issue an occupier’s notice (s 15).  If a new warrant did issue on 29 October 2002, then it was incorrectly dated, as it continued to bear the date 28 October 2002.  We would not regard this as a defect invalidating the warrant.  It is the sort of defect to which s 23 refers.  Further, it had the effect of limiting the period in which the warrant could be executed, so if anything, it was an error which operated in the appellant’s favour.
111	There is a difficulty in concluding, on the alternative analysis, that the search warrant had been lawfully amended by Mr Wiseman on 29 October 2002.  In the first place, it is to be doubted that a warrant can be amended after it has been used.  An express power of amendment would be required to permit a warrant to be amended so as to authorise retrospectively conduct which had occurred prior to the amendment being made.  The SWA does not contain any provision with respect to the amendment of a warrant at all.  There is a difficulty in this case in determining whether or not the warrant had been used, in a relevant way, prior to the amendment having occurred.  It is plain that the police had entered the appellant’s home and, indeed, remained there during the time it took Sergeant Moss to travel to the Kogarah Local Court and to return with the warrant in its corrected form.  The appellant claims that the entry into the house and the police remaining there, even though it was with his consent, resulted from a use of the warrant, it having been represented to him that the police did hold a warrant.  The Crown, on the other hand, contends that the use of the warrant did not commence until the time it commenced to be executed which, it was submitted, occurred only after the return of Sergeant Moss with the warrant in its corrected form.  The trial Judge did conclude that the powers of search had not been exercised prior to the return of Sergeant Moss with the corrected warrant.  That finding is not, however, conclusive of the question of whether use had been made of the warrant to obtain consent to the entry of the police to the appellant’s home.  Given the issue upon which the trial Judge permitted a voir dire, it was not necessary for her to make findings of fact on this issue and she did not do so.  That presents a difficulty for this Court in determining whether or not there had been a relevant use of the warrant at the time that Sergeant Moss appeared before Mr Wiseman on 29 October 2002.  In those circumstances, and given our view that the warrant is, in any event, invalid because of its specification of non-existent premises as the place to be searched, it is inappropriate to express a concluded view as to whether it was open to Mr Wiseman to amend the warrant on 29 October 2002. 
112	For the same reason it is unnecessary to determine whether, on either of the appellant’s two analyses, the events before Mr Wiseman on 29 October 2002 failed to result in the issue of a valid warrant.
113	For the purposes of the exercise of the public policy discretion (to which we will refer shortly) we will assume, in favour of the appellant, that on neither of the two analyses of the events of 29 October 2002 did a valid warrant issue.
2.11	Police conduct involving Mrs Gassy and the appellant
114	The appellant submitted that the police had misrepresented the position to his mother and to him when, on 28 October 2002, they informed each that they held a search warrant authorising a search of their home.  It was submitted that each statement contained an implied representation to the effect that the police held a valid search warrant.  
115	We agree that the police statements may be understood as incorporating a representation.  However, that may not be a representation of the kind for which the appellant contended.  The implied representation may have been a statement by Inspector Leonard that he believed that he held a valid warrant.  On the Judge’s findings, that was not a misrepresentation.  These matters were not fully agitated in the submissions before us.  Because of that circumstance, and because of the view which we have reached that the warrant was, at the time of each of those discussions, invalid in any event, we do not consider it necessary to consider this aspect of the appellant’s submissions further.  It is appropriate to record, however, that the trial Judge found expressly that the police had not engaged in any unlawful conduct in relation to Mrs Gassy and, further, had not compelled her co-operation, applied undue pressure or otherwise behaved in an overbearing fashion.  It is also apparent that the trial Judge accepted that the police had, up until the time that the misdescription of the address in the warrant was appreciated, acted in the genuine belief that they held a valid warrant.
2.12	Bunning v Cross discretion
116	The trial Judge held that even if she had accepted that the appellant had made good his submission that the police had applied undue pressure to his mother or that the police had effectively tricked their way into his home when they first arrived there, it would not have been appropriate to exercise the public policy discretion to preclude the Crown from adducing into evidence items found during the course of the search.  The Judge relied on the fact that even if there had been some invalidity in the warrant when first issued, no searching had taken place until after Sergeant Moss had returned with the warrant in its corrected form.  Thus, in the view taken by the trial Judge, no evidence had been obtained by use of a defective warrant.
117	In the view which we have taken, the warrant when originally issued was invalid because the premises in respect of which it authorised a search were non-existent.  We are also prepared to assume (without deciding) in favour of the appellant, that the actions of the issuing justice on 29 October 2002 did not have the effect of bringing into existence a valid warrant.  
118	However, it does not follow that the trial Judge was in error in refusing to exclude from admission into evidence the items found in the course of the search on 29 October 2002.  The discretion which the Judge was asked to exercise is the discretion to preclude the Crown, on public policy grounds, from leading evidence which has been obtained by unlawful or improper conduct on the part of the police.  The discretion is to be exercised in the circumstances of the particular case where considerations of public policy relating to the sound administration of criminal justice outweigh the legitimate public interest in the conviction of the guilty.  In the present case the discretion could not, in our opinion, reasonably have been exercised in favour of the exclusion of the evidence.  The contravention of the law by the police was not deliberate.  The intent of the police to comply with the law is evidenced by the action which was taken once the misdescription of the address was ascertained.  Immediate steps were taken to obtain a corrected warrant.  Inspector Leonard said that he was not prepared to proceed with the execution of the warrant in its uncorrected form.  The items obtained during the course of the search on 29 October 2002 were cogent pieces of evidence in relation to the charge of murder of Dr Tobin.  In circumstances in which the police were intending to act in accordance with the law and in conformity with what they understood to be authorised by the law, we do not consider that the discretion could reasonably be exercised so as to exclude the admission into evidence of items found during the search on 29 October 2002.
2.13	The search warrant dated 10 March 2003
119	On 10 March 2003, Mr Wiseman issued a second warrant to Sergeant Moss pursuant to the SWA.  That warrant was executed on 11 March 2003 and a number of items were then seized.  The appellant sought to have those items, including a 2002 calendar containing certain markings, a 2002 Brisbane Street Directory and other documents, excluded from evidence.  The appellant submitted that the warrant issued on 10 March 2003 was invalid because, like the warrant issued on 28 October 2002, it failed to show on its face compliance with the jurisdictional factors and for a further reason, namely its failure to specify the offence in respect of which the search was authorised. 
120	Subject to some exceptions, the warrant issued on 10 March 2003 was in the same form as that dated on 28 October 2002.  However, paragraph 2(a) of the prescribed form which required a statement of the offence or offences to which the warrant related was left blank.  The warrant authorised Sergeant Moss to enter the premises known as 23 Georges River Crescent, Oyster Bay and: 
there to search those premises for the following things [several items were then described], any other documentation, material or item relevant to the investigation for the offence of murder being an indictable offence in the State of South Australia, being things that the police officer has reasonable grounds for believing:
(a)	are connected with the offence(s) of: [blank]
121	As already noted, the common law requires the offence or offences in respect of which the search warrant is issued to be specified in the warrant.  In addition, the form prescribed in the Search Warrant Regulation 1999 required the offence or offences to be stated.  
122	Having regard to the line of authorities commencing with Warner v Elder to which reference was made earlier, our opinion is that the failure to specify the offence in respect of which a search was authorised means that the warrant issued on 10 March 2003 was also invalid.  That conclusion makes it unnecessary to consider the appellant’s further submission and, in particular, whether the reference to the offence of murder in the description of the items which could be seized meant that there had been a sufficient specification of the offence to which the warrant related.
123	However, even though the warrant dated 10 March 2003 was invalid, we do not consider that the public policy discretion could reasonably have been exercised so as to exclude the admission into evidence of the items seized on 11 March 2003.  There is no suggestion that in March 2003 the police were acting in deliberate disregard of the requirements of the SWA or that they were indifferent to its requirements.  Although the form had not been correctly completed, it did refer to the offence of murder.  As at 10 March 2003, the appellant had already been charged with the murder of Dr Tobin and had been remanded in custody.  In those circumstances, it is likely that the police officers executing the warrant, and the appellant’s parents, were well aware of the subject matter of the search.
124	In summary, in our opinion, the appellant has not made out the first ground of his appeal.
3.	Ground 2 – Legal representation of the appellant
125	This ground alleges that the trial Judge erred as a matter of law in ruling that the appellant could not be represented by counsel for the voir dire only if he was not briefed for the trial before the jury, that is, that legal representation by counsel had to be for the whole trial including the voir dire, or not at all.  The appellant argues that the lack of representation for a number of the pre-trial applications resulted in a substantial miscarriage of justice.
3.1	Denial of representation
126	Following his initial arraignment the appellant was self-represented at various directions hearings and other applications.  On one of them he was represented by Mr de Robillard, a barrister from New South Wales.
127	The first directions hearing to take place before the trial Judge was on 13 January 2004.  Mr de Robillard announced  an appearance for the appellant.  He was asked by the trial Judge whether he was appearing for the appellant just for a particular purpose or whether he would also be counsel at the trial.  In response, Mr de Robillard indicated that he was instructed to appear for the appellant in relation to the directions hearing and on any r 9 application such as a voir dire hearing in relation to the exclusion of evidence from the trial.  He explained that by doing so it was hoped to limit the evidence which might be led at the trial when the appellant would be representing himself.  The trial Judge described that as “an unusual course”.  She saw the voir dire as part of the trial, and that if counsel were retained for the voir dire argument then the Court would expect that counsel would continue to represent the accused at trial as well.  The matter was left unresolved with Mr de Robillard to obtain some further instructions.
128	The next directions hearing was on 3 February 2004.  Mr de Robillard again appeared for the appellant.  Mr de Robillard explained that nothing had changed from his previous position, although he understood that the appellant had made an application for legal assistance, the details of which Mr de Robillard was unsure.  The trial Judge expressed the desirability of the appellant being represented by counsel at what was promising to be a matter of some complexity.
129	It transpired, later in the hearing, that the application of the appellant had been for a grant to cover the cost of some expert witnesses as well as for a lawyer to be present in Court for the purpose of case management and other procedural issues, but it was the intention of the appellant to represent himself.  Mr de Robillard confirmed that he had been retained to do the legal argument on the voir dire, to which the trial Judge replied:
In my mind that is not possible.  Once you commence a trial, as far as I’m concerned whether it’s a voir dire argument or whether it’s a trial in front of a jury, you are an officer of the Court and you are required to continue there acting for your client either until your trial is finished or there is some difficulty in your continuing to act and I wouldn’t necessarily give you leave to withdraw until the trial was finished.
130	The prosecutor then invited the Judge’s attention to s 8 and s 9 of the Criminal Law (Legal Representation) Act 2001 (SA) and the possibility of the Court having to make a direction under that Act that the appellant apply for legal aid.  During the course of that discussion the trial Judge again expressed the view that the voir dire was part of the trial.  The trial Judge noted that the appellant had signed the form pursuant to s 8(3) of the Criminal Law (Legal Representation) Act, the effect of which is addressed later in these reasons.
131	The next directions hearing took place on 3 March 2004.  The appellant was unrepresented.  He was asked by the trial Judge what his position was at that point with respect to representation and the following exchange occurred:
ACCUSED:		I’m self-represented.
HER HONOUR:	Mr de Robillard is no longer acting for you, even on the directions hearing?
ACCUSED:	Not on this occasion.
HER HONOUR:	Is there any plan to retain him for any future hearing?
ACCUSED:	After your Honour ruled that he wouldn’t be able to conduct the voir dire and not conduct the rest of the trial, I notified Mr de Robillard and the prosecution that, in that event, I would elect to conduct the voir dire myself.
132	Further directions hearings were conducted by the trial Judge on 24 March and 2 April 2004 when the appellant appeared in person and on further applications which came before another Judge on 29 April and 3 May 2004.  Hearings on matters preliminary to the empanelment of a jury commenced before the trial Judge on 5 May 2004.
133	On that occasion, in response to a question from the trial Judge, the appellant confirmed that he had chosen to represent himself.  Mr de Robillard was present in the Court, and the appellant informed the Judge that he wanted to have Mr de Robillard available to provide assistance.  The Judge asked why, in those circumstances, it was not expedient to have him acting for the appellant, to which the appellant responded, “I would like to be in control of the case, your Honour, at all times”.  There was some further brief discussion about an application for legal aid which the appellant had withdrawn and the matter was left on the basis that Mr de Robillard would be available to offer the appellant advice and assistance during the pre-trial argument.
134	Shortly after Mr de Robillard sought to intervene on a particular matter and the Judge questioned his right to be heard.  During the course of that exchange Mr de Robillard explained that the reason for his not appearing for the appellant was because of what he perceived to have been the Judge’s ruling that he was not entitled to appear because of the provisions of the Criminal Law (Legal Representation) Act.  The trial Judge disputed that she had made any such order.  Mr de Robillard made a further brief submission that he should be entitled to represent the appellant on preliminary legal argument but acknowledged that the Judge had ruled in the past that he was not entitled to appear unless he appeared in the whole case.  The trial Judge responded:
That is more along the lines of what I did rule.  So far as I am concerned, any legal practitioner that comes before me and announces his appearance and announces that he has been briefed by a solicitor to act may represent Dr Gassy but that representation will continue for the duration of the trial.
135	At the close of the exchange the Judge gave him permission to withdraw, the transcript recording:
I do not expect to see you back at the bar table and making any direct representation to me unless you are represented (sic) to announce your appearance and that you will appear throughout the trial.
136	Arguments on various preliminary applications continued with the appellant representing himself until 11 May 2004, day 5 of the voir dire, when the appellant expressed concern at some impending legal arguments and asked the Judge to reconsider the position about having Mr de Robillard represent him in part at his trial.  The Judge responded that she would be more than happy to have Mr de Robillard represent the appellant at his trial but not for parts of it only.  She said:
That has nothing to do with the Legal Representation Act, that is an attitude I take on the basis of the practice of this Court over many years.
It is quite unacceptable, in my mind, to have a practitioner act for a person only on some issues in the trial and have that person act for himself in relation to the balance.  It just does not work.
137	It was clear that, after Mr de Robillard had been refused leave to appear, he remained in Court every day up to and including 18 May 2004, being day 8 of the voir dire.  He was supplied, without charge, with a copy of the transcript in addition to that supplied to the appellant.  Counsel for the prosecution agreed to supply two copies of all documents being tendered, relied on or referred to so that Mr de Robillard, as well as the appellant, could be provided with a set.  Arrangements were made for Mr de Robillard to have access to the appellant for at least half an hour after the termination of proceedings each day, in the morning before the hearing and at lunch times.  The Judge adopted flexible sitting hours if there were particular matters that required reading or preparation by the appellant.  Notwithstanding that, there was one occasion on 13 May 2004 (day 7 of the voir dire) when the appellant complained of the limited access he had to Mr de Robillard, and raised the possibility of a fresh bail application.
3.2	Representation of Mr de Robillard
138	On 19 May 2004 the trial Judge noted that Mr de Robillard had been in Court every day but was not there on that occasion.  He was also not present on 20 or 21 May. During the afternoon of 21 May (Friday) the appellant informed the Judge that Mr de Robillard might be acting for him from the following Monday. On Monday 24 May Mr de Robillard appeared and announced that he had instructions to appear for the appellant “for the continuation of the proceedings”.  In answer to a question from the trial Judge he gave his assurance that he had been briefed to appear until the end of the trial.  
139	Before allowing him to appear the trial Judge sought and obtained undertakings from Mr de Robillard that he would arrange for an instructing solicitor to file a notice of acting and that he would inform the trial Judge of the attitude of the Law Society as to whether Mr de Robillard could fulfill that role if he sought to do so himself.  Inspector Leonard was then called on the voir dire, and cross‑examined by Mr de Robillard, in relation to the search warrant.
140	On the following day (25 May), Mr de Robillard reported that he had been unable to comply with the undertaking for reasons which he then gave.  He sought an adjournment for the morning to enable him to do so.  The trial Judge also, for the first time, said that she wanted evidence of Mr de Robillard’s entitlement to practise in New South Wales and suggested he might produce his practising certificate.  It would seem that her Honour’s concern arose out of Mr de Robillard’s conduct of the cross‑examination of Inspector Leonard the previous day.  The Judge said that she was not prepared to allow Mr de Robillard to appear until the undertaking was complied with and until he produced evidence of his entitlement to practise in New South Wales.  Given that Inspector Leonard himself was from New South Wales, the Judge was not prepared to adjourn further cross‑examination of him and, in Mr de Robillard’s absence, continued herself to put to Inspector Leonard the evidence of Mrs Gassy previously given as to conversations which she alleged had taken place between them on the day of execution of the first warrant.  The appellant was asked if he had any further questions of Inspector Leonard.  He did not, and after re‑examination Inspector Leonard was discharged.  The hearing was then adjourned until 2.15 p.m., when Mr de Robillard, having complied with the undertaking and having produced a letter from the Director of Conduct of the New South Wales Bar Association confirming that he was a holder of a current practising certificate, was allowed to continue with his representation of the appellant.
141	The refusal to adjourn the hearing that morning was the subject of ground 1.4 of the appellant’s grounds of appeal in connection with his challenge to the warrant.  Duggan J refused leave to appeal on that ground, holding that “the available material does not disclose any cause for concern that these events resulted in a miscarriage of justice.  It has not been suggested that the defence was prevented from investigating any particular issues.  There was no application to recall Leonard after he had given evidence.  Furthermore, it was not inappropriate for the trial Judge to provide this witness with a chance to comment on the version given by Mrs Gassy”.  The application for leave to appeal on this ground was not pursued before the Full Court.
3.3 	Mr de Robillard’s instructions terminated
142	Mr de Robillard’s representation of the appellant continued until 2 June 2004, when he informed the Court that his instructions had been terminated.  He was then excused from further attendance.  Thereafter, the appellant continued to conduct his own defence on the various preliminary applications.  He did not seek any adjournment of the hearing.  The hearing of preliminary matters continued, with the appellant conducting his own case, until a jury was empanelled on 8 July 2004.  The appellant continued to represent himself throughout the trial until the jury retired to consider their verdict on 21 September 2004, delivering a unanimous verdict on 23 September 2004.  As elsewhere noted, the appellant conducted his own application for leave to appeal both before a single judge and before this Court, and conducted his own appeal.
3.4	The period the appellant was not represented
143	The result of the various exchanges between the trial Judge and Mr de Robillard and the appellant was that the appellant was effectively denied legal representation of his choice unless counsel was engaged for the duration of the trial.  Initially, the appellant was not prepared to do that, and so for the period 5‑21 May, a period of 11 sitting days, he was without legal representation at a time when he had required it and was prepared to provide it at his own cost.  This was a period during which there was argument on a number of pre-trial applications of some importance involving the admissibility of quite significant evidence at the trial.  However, to the extent noted above, he had access to advice and assistance of Mr de Robillard out of court.
144	In giving the directions she did, the trial Judge was not relying on any provisions of the Criminal Law (Legal Representation) Act but on the exercise of her own discretion in the conduct of the trial.  It is convenient to consider the position first as the trial Judge considered it, without reference to the Criminal Law (Legal Representation) Act and then to consider the effect of that Act.
3.5	The right to representation
145	The right to a fair trial according to law is a fundamental element of the criminal justice system.  However, as Mason CJ and McHugh J pointed out in Dietrich v The Queen:
There has been no judicial attempt to list exhaustively the attributes of a fair trial.  That is because, in the ordinary course of the criminal appellate process, an appellate court is generally called upon to determine, as here, whether something that was done or said in the course of the trial, or less usually before trial, resulted in the accused being deprived of a fair trial and led to a miscarriage of justice. [Footnote omitted]
146	In Dietrich v The Queen the High Court rejected the appellant’s argument that an accused person had a right to be provided with counsel for his trial at public expense.  However, his appeal was allowed by a majority.  Mason and McHugh JJ observed that Australian law acknowledges that “an accused has a right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial.  Such a finding is, however, inextricably linked to the facts of the case and the background of the accused”.  In the circumstances of that case, they considered that the lack of legal representation deprived the accused of a real chance of acquittal.
147	Brennan J would have dismissed the appeal, holding that it was not part of the common law that a miscarriage of justice occurred by reason of the accused being unrepresented.  There was no miscarriage of justice “arising simply from the fact that the applicant was not legally represented”.
148	Dawson J, while dismissing the appeal did observe that refusal of an adjournment which would deprive an accused of a reasonable opportunity to obtain representation would effectively deny him the form of trial to which he was entitled by statute – a trial at which he was represented by counsel.  He concluded that the common law right did not extend to the right to representation at public expense.
149	Deane and Gaudron JJ considered that the trial was unfair simply by reason of the lack of representation itself.
150	Thus, a majority of the Court in Dietrich declined to hold that lack of legal representation in itself constituted a miscarriage of justice.
151	Nevertheless, the majority which allowed the appeal recognised the power of a Court to stay proceedings that will result in an unfair trial, including a case in which representation by counsel of an indigent accused person, charged with a serious crime, is essential for a fair trial, and where the accused, through no fault of his own, is unable to obtain legal representation.
152	The charge against the accused in this case was one of the most serious.  The case against him was entirely circumstantial.  Significant issues relating to the admissibility of evidence crucial to the prosecution case had been foreshadowed.  These included the admission into evidence of items seized under a search warrant where the validity of the warrant and of the seizure was in question and where the legality of other actions taken in reliance on it was in question.  They included important evidence of identification of the appellant at various times and places crucial to the success of the prosecution.  There can be little doubt that, leaving aside the effect of the Criminal Law (Legal Representation) Act, an indigent accused unable through no fault of his own to obtain legal representation would have been entitled to a stay of the trial because of the substantial risk of the trial being unfair through his lack of legal representation.
153	However, this was not the case of an indigent accused.  The appellant wanted to employ counsel of his choice at his own expense.  Although he wanted to do so for a limited period and for a limited purpose, the risk of a miscarriage of justice by his being denied the right to do so was just as great as in the case of the indigent person unable to obtain legal representation.  Those risks have been recognised by the enactment of s 288 of the Criminal Law Consolidation Act 1935 (SA) and its predecessors.  Section 288 provides:
288	A person charged with an offence may be represented by counsel.
154	That section enshrines the right of a person in the position of the appellant to legal representation whether that be provided at the person’s own expense, through legal aid or pro bono.  Its principal purpose is to diminish the risk of an unfair trial and a miscarriage of justice.  It is a right which no Court has the power to deny or diminish.
155	Section 288 does not qualify the right by providing that it may only be exercised if counsel is briefed to conduct the whole trial.  On the other hand, a trial Judge must be able to regulate the exercise of the right in the interest of the administration of justice by ensuring that a risk of miscarriage is avoided by an undisciplined or haphazard exercise of the right.  There would be obvious difficulties in an accused person engaging counsel and in counsel acting for only part or parts of a trial after a jury is empanelled.  That was not in question in this case.  The appellant, from the outset, had made clear that he would be conducting his own trial before the jury.  He wanted counsel to argue only the preliminary matters, essentially matters of law, with a view to limiting the evidence which would be led at the trial.  Those preliminary matters involved important and quite complex questions of law and the admissibility of evidence, the result of which could have a profound effect on the outcome of the trial.  It is understandable that an accused person in the appellant’s position might wish to be legally represented on preliminary legal arguments but still conduct their own defence at trial.
156	To deny the appellant legal representation when requested in respect of such matters where the appellant acknowledged his own limitations in being able to deal with those points was to countenance a serious risk of injustice and a possible miscarriage by virtue of the accused’s lack of legal expertise.  It is difficult to conceive that other aspects of the trial would have been compromised by allowing legal representation for that limited purpose.  Indeed, when Mr de Robillard was engaged on terms which were acceptable to the trial Judge, he appeared in fact for a limited time and for discrete purposes until his instructions were terminated.  Neither the trial nor the proper determination of the preliminary issues was compromised by that limited appearance.  No delay or embarrassment was caused.
157	A trial judge must always retain control of the exercise of the right to legal representation.  On a series of interlocutory applications, such as were before the trial Judge on this occasion, it might well have been inappropriate for Mr de Robillard to participate in some and not others.  If he was not briefed for the whole trial, the trial Judge was entitled to know with some precision the basis on which he sought to appear, and to make an assessment as to whether that was appropriate and practicable.  However, as it appears that Mr de Robillard was instructed to represent the appellant for all the preliminary applications, there was no good reason why the appellant should have been denied that right to limited representation on what were essentially important questions of law.  The conduct of the balance of the trial after empanelment of the jury would not, it would seem, have been compromised or affected in any way by the appellant then representing himself.
158	Because there was no sound reason to deny the appellant his right to legal representation for that part of the trial, the trial Judge erred in imposing the condition on the right to representation that she did for the reasons that she did.
3.6	The Criminal Law (Legal Representation) Act 2001
159	However, that is not the end of the matter.  In order to regulate the effects of the decision in Dietrich v The Queen, Parliament enacted the Criminal Law (Legal Representation) Act 2001 (SA) (“the Representation Act”).  Its objects are stated in s 3:
The objects of this Act are –
(a)	to ensure that legal representation is available to persons charged with serious offences; and
(b)	as a consequence of the provision made for legal representation – to limit the application of the rule under which the trial of a person charged with a serious offence may be stayed on the ground that the trial would be unfair for want of legal representation; and
(c)	to ensure, as far as practicable, that trials are not disrupted by adjournments arising because the defendant lacks legal representation; and
(d)	to ensure that defendants who obtain legal representation under this Act pay for it to the extent their means allow.
160	Section 6 obliges the Legal Services Commission, subject to the provisions of the Legal Services Commission Act 1977 (SA), to grant legal assistance for a person charged with a serious offence, as defined, by way of legal representation for “the trial” and for certain “associated proceedings”.  “Trial” is defined in s 4(1) as meaning “a trial of a serious offence before the Supreme Court or the District Court”.  It is not necessary to refer to the definition of “serious offence”.  Murder is such an offence.  “Associated proceedings” is defined as follows:
associated proceedings, in relation to a trial, means proceedings that are preliminary or ancillary to the trial (including proceedings in which the validity of the charge is challenged), but does not include –
(a)	any such proceedings that commence before the first directions hearing after arraignment; or
(b)	an appeal; or
(c)	proceedings under this Act.
161	In order to determine what proceedings are “preliminary or ancillary” to a trial, it is necessary first to determine what constitutes a “trial” for the purpose of the definition of “associated proceedings”.  In this case that involves a consideration of when the trial begins.
162	Jowitt’s Dictionary of English Law defines trial as:
The hearing of a cause, civil or criminal, before a judge who has jurisdiction over it, according to the laws of the land.  A trial is the finding out by due examination the truth of the point in issue or question between the parties, whereupon judgment may be given.
…
A trial is that step in an action, prosecution or other judicial proceedings, by which the questions of fact in issue are decided.
…
At a trial by jury, the cause is called on, or the prisoner arraigned, before the jury is sworn.  The parties may then challenge the jury.
… 
The pleadings are opened by counsel for the plaintiff and the case stated to the jury; after this the witnesses for the plaintiff are examined by his counsel, the cross-examination being generally conducted by the senior counsel for the defendant.  If the defendant’s counsel objects to any question or any document, all the defendant’s counsel are entitled to be heard on the objection, and all the plaintiff’s counsel on the other side, and the senior counsel for the defendant in reply; and so if the plaintiff’s counsel objects mutatis mutandis.
…
In a criminal trial the effect of the pleadings is stated to the jury by the clerk of the court, except in a case of misdemeanour, where that is done by counsel as in a civil cause.  In other respects the order of proceeding is the same.  After a conviction for misdemeanour counsel for the defendant may address the court in mitigation, and counsel for the prosecution in aggravation, of his sentence.  Sentence may be deferred to a future day.
163	It will be noted that the trial includes the hearing of argument and the ruling on objections to evidence.
164	What constitutes a trial in the civil context was considered by the Queensland Court of Appeal by WR Carpenter Australia Ltd v Ogle:
The term “trial” is not defined in the Rules.  Counsel for the appellant referred the court to the discussion of the term “trial” in Jowitt’s Dictionary of English Law.  To that may be added the primary definition appearing in Butterworths Australian Legal Dictionary: “A fact finding process, by which the court resolves disputed issues of fact presented by the parties and applies appropriate legal rules, culminating in a judgment.”  That, in my view, is an accurate description of what is meant by the term “trial” when used in the Rules.
That definition would also encompass argument and rulings on legal rules relating to the admissibility of evidence.
165	In our opinion it follows that a trial includes the application of the rules of evidence to determine what evidence is admissible before the jury or judge before whom the trial is conducted, even if it involves the hearing of evidence on a voir dire in order to determine those questions.
166	The ability to conduct hearings on such issues in a criminal case after arraignment and before a jury is empanelled is of relatively recent origin.  The authority to do so is to be found in s 285A of the Criminal Law Consolidation Act 1935 which was enacted in 1981.  That section provides:
A court before which a person has been arraigned may, if it thinks fit, hear and determine any question relating to the admissibility of evidence, and any other question of law affecting the conduct of the trial, before the jury is empanelled.
167	With the complexity of evidence in a modern criminal trial and with ever increasing statutory and other rules governing the admissibility of evidence taking, in some cases, days or weeks to resolve, it is not surprising that Parliament should have legislated to enable that process to occur before a jury is empanelled.
168	However, because that may occur before the jury is empanelled does not mean that such arguments and rulings cease to be part of the trial.  They will be heard and determined only by the judge who presides over the trial.  The judge cannot merely adopt rulings made in earlier interlocutory hearings before another judge.  Previous rulings may be adopted, but it is for the trial judge to consider the issue and to agree with them or not as the case may be.
169	The proceedings in question for which the appellant wanted to be represented by counsel only concerned the admissibility of evidence at the trial.  Whatever else may be encompassed by the definition of “associated proceedings” in the Representation Act, the voir dire hearings and the arguments addressed to the trial Judge on those topics were part of the trial in this case.  They were not “associated proceedings” for the purposes of the Representation Act.
170	Section 8 of the Representation Act provides:
(1)	At the first directions hearing to be held after the defendant’s arraignment, the court –
(a)	must consider the question whether a direction is required under this section; and
(b)	must determine the question at that hearing or as soon as practicable afterwards.
(2)	If the defendant is represented by a lawyer, the lawyer must, at least 7 days before the day fixed for the first directions hearing, file in the court a certificate certifying that –
(a)	the defendant is an assisted person; or
(b)	the lawyer undertakes that the defendant will be provided with legal representation for the duration of the trial; or
(c)	the defendant is not an assisted person and the lawyer is not prepared to give an undertaking under paragraph (b).
(3)	The court must direct the defendant to make an application to the Commission for legal assistance unless –
(a)	the defendant is an assisted person; or
(b)	the defendant’s lawyer has given an undertaking to the court that the defendant will be provided with legal representation for the duration of the trial; or
(c)	the court is satisfied, on the basis of a written assurance given by the defendant, that the defendant does not want legal representation at the trial.
(4)	A direction under this section must fix a reasonable time within which the direction is to be complied with.
171	In this case the appellant, at the time of the first directions hearing, was not represented by a lawyer. On 26 September 2003, he signed an assurance, in accordance with s 8(3), that he did not want to be legally represented at the trial.
172	Section 9 therefore applied to the appellant.  That section provides:
(1)	This section applies to a defendant who –
(a)	is not an assisted person; and
(b)	either –
(i)	has given the court a written assurance that the defendant does not want legal representation at the trial; or
(ii)	has been directed by the court to make an application for legal assistance and has failed to comply with the direction.
(2)	A defendant to whom this section applies may only be represented by a lawyer at the trial or in an associated proceeding if the lawyer, or some other lawyer on whose instructions the lawyer is acting, files in the court a certificate certifying that the lawyer undertakes that the defendant will be provided with legal representation for the duration of the trial.
(3)	A lawyer who provides legal representation, advice or other legal services in connection with the trial or an associated proceeding for a defendant to whom this section applies between the relevant dates is not entitled to any fee for those services.
(4)	The relevant dates are as follows:
(a)	the first date is –
(i)	for a defendant who has given the court a written assurance that he or she does not want legal representation at the trial – the date of that assurance;
(ii)	for a defendant who has been directed by the court to make an application for legal assistance – the date of the direction;
(b)	the second date is the date on which a lawyer files in the court a certificate certifying that the lawyer undertakes that the defendant will be provided with legal representation for the duration of the trial.
173	Section 10 also provides:
If –
(a)	the court adjourns a trial or associated proceedings in order to allow the defendant to make an application for legal assistance or to obtain legal representation in some other way; and
(b)	the adjournment is attributable to the defendant’s failure to make proper arrangements for legal representation in advance of the proceedings or to a change of mind on the part of the defendant about legal representation,
	the court may make an order against the defendant personally for the costs of the adjournment and the costs of the proceedings thrown away by the adjournment.
174	When Mr de Robillard first appeared for the appellant on 13 January 2004 and announced on behalf of his client that he had instructions to appear in relation to the directions hearings and on any r 9 application, that amounted to a withdrawal by the appellant of the assurance that he had previously signed on 26 September 2003 that he did not wish to be legally represented at the trial.  He maintained that attitude throughout the subsequent proceedings until Mr de Robillard’s instructions were terminated.  He only proceeded without representation on the voir dire hearings before that time because he had been denied that right by the trial Judge.  There is no reason why an assurance given under s 8(3) of the Act is not capable of being subsequently withdrawn.  Section 10 contemplates that very possibility.
175	It follows that s 9 of the Act applied to the appellant until 13 January 2004.  It is not necessary to decide whether the withdrawal of the assurance reactivated the requirements of s 8.  It probably did not.  In any event, the appellant was not directed by the Court to make an application for legal assistance.  Section 9 did not apply to the applicant after 13 January 2004.  The appellant was entitled to be represented by Mr de Robillard without the filing of a certificate referred to in s 9(2) of the Act.
176	There remains the question whether, in the circumstances, s 11 of the Representation Act has any application.
177	Section 11 provides:
The fairness of a trial (or a prospective trial) cannot be challenged (and a trial or prospective trial cannot be stayed) on the ground of lack of legal representation unless –
(a)	the Commission has, contrary to this Act, refused or failed to provide legal assistance for the defendant; or
(b)	the Commission has withdrawn legal assistance for the defendant on the ground that it has been unable to reach agreement with the Attorney-General on a case management plan.
178	On its face, s 11 appears to prevent the appellant from asserting this ground.  However, on further examination, it is apparent that s 11 is not a bar to the appellant’s argument.  Section 11 applies in a case where the challenge to the fairness of the trial is on the ground of a lack of legal representation.  The noun “lack” in this context means a deficiency or want or need: see Oxford English Dictionary; Macquarie Dictionary.  Thus, s 11 is intended to bar a challenge to the fairness of a trial where the complaint is that the defendant did not have legal representation available.  That is not the appellant’s complaint.  His complaint is that he had counsel available for the hearing of his pre-trial applications and was denied that assistance.  On its terms, s 11 is not a bar to the appellant’s argument.
179	That conclusion is reinforced by consideration of the objects and purposes of the Representation Act.  Paragraph (a) of s 3 states one of the objects to be to ensure that legal representation is available to persons charged with serious offences – that they are not deprived of legal representation through lack of means.  Subject to compliance with certain conditions, the Act provides for that.  Having provided for the means of representation of such persons, paragraph (b) of s 3 states another of the objects to be to limit the application of the rule under which the trial of a person charged with a serious offence may be stayed on the ground that the trial would be unfair for want of legal representation.  It is not the purpose of the Representation Act to limit the application of this rule in a broad range of other circumstances where, for whatever reason, legal representation is wanting.  In para.(c) of s 3 the verb “lacks” is chosen, thus indicating that the Representation Act is only concerned about disruptive adjournments arising through lack of legal representation rather than through want of legal representation.
180	The Representation Act was enacted for the purpose of dealing with the consequences of the decision in Dietrich and to ensure that legal representation was available to persons charged with serious offences.  The Representation Act is intended to deal with the situation where an accused person wishes to have legal representation for the whole trial but does not have the means to obtain it.  Plainly that was not the case with the appellant.  He had the means to obtain legal representation and had counsel available.  However, he wished to be represented for part of the trial only.
181	There is another ground for that conclusion.  If an accused person has counsel available to represent him, the accused has the common law right to avail himself of the assistance of that counsel.  As Dawson J observed in Dietrich, it is a right of an accused person to avail himself of counsel if counsel is available to him or can be made available to him.  That is a fundamental common law right which exists as a corollary of the common law right to a fair trial.  The courts will not construe a statute as suspending or modifying a fundamental common law right unless the Parliament makes that intention quite clear.  As Brennan J said in Re Bolton; Ex parte Beane:
Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.
That principle has been consistently applied in this country.
182	As Deane and Dawson JJ said in Coco:
It is settled law that a court should not impute to a legislature an intention either to abolish or to modify a fundamental common law right or privilege unless the relevant legislation makes such an intention unambiguously clear.
It is not unambiguously clear that s 11 is intended to qualify the right of a person who has counsel available but who has been denied the right to be represented by that counsel to challenge the fairness of the trial.  Section 11 therefore has no application in the circumstances of this case.
183	For all of these reasons, the Criminal Law (Legal Representation) Act is not a bar to the appellant contending that the trial Judge improperly denied him the benefit of being represented for the purpose of the r 9 applications by the legal counsel he had available to him or that the trial was unfair on that account.
3.7	A miscarriage of justice?
184	As mentioned above, this ground of appeal alleges that the trial Judge erred in law, as we have found, in ruling that the appellant could not be represented by counsel for the voir dire only.  The relevant test as to whether such an error vitiates the trial is stated by the High Court in Wilde v The Queen:
[W]here there has been a departure from the requirement of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost “a chance which was fairly open to him of being acquitted” to use the phrase of Fullagar J in Mraz v The Queen (1955) 93 CLR 493 at 514 or “a real chance of acquittal” to use the phrase of Barwick CJ in Reg v Storey (1978) 140 CLR 364 at 376.  Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen (1977) 137 CLR 517 at 524; Reg v Storey (1978) 149 CLR at 376; Gallagher v The Queen (1986) 160 CLR 392 at 412-413. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen (1955) 93 CLR 493 at 514. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice.
185	Wilde’s Case was concerned with the application of the proviso where there was an error in the trial Judge’s direction to the jury as to the use that could be made of certain evidence led at the trial, but where the prosecution case was nevertheless very strong and the defence case very weak.  The passage is not relied on for the application of the proviso in this case, but as an appropriate test as to whether there has been a miscarriage of justice in a case of this nature.  Just as the proviso has no application where an irregularity has occurred “which is such a departure from the essential requirements of the law that it goes to the root of the proceedings”, so there will be a miscarriage justifying a retrial where such a complaint is made out.
186	As the joint judgment in Wilde continued:
There is no rigid formula to determine what constitutes such a radical or fundamental error.  It may go either to the form of the trial or the manner in which it was conducted. There are those cases which identify irregularities which are sufficient to vitiate a trial and afford a basis for a writ of venire de novo.  They are concerned more with the form of the trial but even in that area they provide no real touchstone for determining when an irregularity is so serious as to cause a mistrial: see Cooke, “Venire de Novo” Law Quarterly Review, Vol. 71 (1955) 100, at p.128; Reg v Rose (1982) 1 WLR 614, at pp. 621-622; [1982] 2 All ER 536 at p.542; and in the House of Lords [1982] AC 822, at pp. 831-834.
187	The question in this case is whether the refusal to allow the appellant to be represented for the period and in the circumstances described constituted such a departure from the essential requirements of a fair trial in the sense discussed in Wilde.
188	Based on the decision of the majority in Dietrich v The Queen, a failure to allow legal representation will not in itself justify allowing the appeal.  The only relevant question is whether the trial was unfair and a chance of acquittal was denied to the appellant by the failure to allow the legal representation.  It is that question which must now be addressed.
189	In the course of a long trial, such as this one was, there will be many forensic decisions which will have been made by counsel representing an accused person in the proper conduct of the defence and which an unrepresented accused, through ignorance of the law or inability to ask appropriate and relevant questions in cross-examination, is unlikely to make and which, for that reason, may well prejudice his or her chance of acquittal.  Depending on the circumstances, it may not be necessary to point to any particular failure or omission on the part of a self represented accused in order to conclude that he or she has suffered a miscarriage of justice by means of their lack of representation through no fault of their own.  Denial of legal representation for a complete trial will usually result in a miscarriage of justice.
190	In this case we are not concerned about the conduct of the trial or of any preliminary proceedings after the point when Mr de Robillard’s instructions were terminated.  It was the appellant’s decision to terminate the instructions and to choose to represent himself thereafter for the duration of the trial.  Likewise we are not concerned with that period of the proceedings when the appellant was represented by Mr de Robillard.  We are only concerned with a discrete part of the proceedings before Mr de Robillard began his representation of the appellant.  That was at a time when previous applications could be (and were) extended or could be re‑opened and fresh applications made.  The question is whether the appellant has lost a chance fairly open to him of being acquitted by virtue of his being required to be self represented, against his will, during that period.
191	Despite his not being allowed to appear, Mr de Robillard, except for the last three days before he began representing the appellant, remained in court each day listening to the proceedings, being supplied with transcript and copies of relevant documents.  The appellant continued to have access to and to make use of Mr de Robillard’s advice as the hearing proceeded.  There is evidence that even during the last three days there was ongoing contact between the appellant and Mr de Robillard.
192	However, let it be assumed for present purposes that Mr de Robillard was not available to provide that service.
193	The relevant period of non-representation was 5–21 May inclusive, a period of 11 sitting days out of a total of 30 occupied on preliminary matters.  Although argument was heard as to the admissibility of evidence relating to identification and admissibility of the Brisbane evidence, with one exception it was entirely on the papers and video evidence of the identifications concerned.  No rulings were made by the Judge until 17 June.  One of the witnesses, a Mr Barker, was called on the voir dire and cross-examined by the appellant.  His evidence was excluded by the trial Judge.  With the advent of counsel, and after his departure, further submissions and application to call further witnesses on the voir dire could have been made before the ruling if it was considered that for some reason the appellant was disadvantaged by the submissions he had made.  The resultant rulings could have been, and in some cases were, the subject of challenge on this appeal.  No miscarriage has occurred in relation to the lack of representation on those topics.
194	Other exclusions argued during this period related to admissibility of the torn ticket, the persons of interest list, the deregistration proceedings before the NSW Medical Tribunal and evidence concerning the appellant’s firearm training and pistol club attendance.  Again, no rulings were made until 17 June and similar comments apply to these proceedings.
195	The only other topic begun but not completed during the relevant period was argument and evidence concerning the validity of the search warrants and their execution, and the admissibility of evidence obtained under the warrants.  The trial Judge made one ruling while the appellant was unrepresented with respect to the extent to which evidence on the voir dire would be allowed.  The ruling allowed a voir dire on issues going to the legality of the search, but refused a voir dire examination on the question whether Inspector Leonard had effectively tricked his way into the appellant’s home by pretending that the warrant was valid.  This was on the basis that the Judge considered that the warrant was not executed until later in the day when the address on the warrant had been corrected.  The parameters of the voir dire had therefore been established before Mr de Robillard’s representation of the appellant began. 
196	In support of the objection to the evidence the appellant called his mother and the prosecution called Sergeant Kinsman and, after Mr de Robillard began representing the appellant, Inspector Leonard and Sergeant Moss.  They were cross-examined by Mr de Robillard.  In the course of his cross‑examination of Sergeant Moss, Mr de Robillard sought to extend the parameters of the inquiry beyond those previously set by the Judge, being matters not limited to the legality of the search, assuming a valid warrant.  The Judge heard extensive submissions from Mr de Robillard on the topic but ultimately refused the application for a voir dire on the extended subject matter.  The significance of this for present purposes is that it was open to Mr de Robillard to seek, and he did seek, to have issues re‑opened which had been decided before he began his representation of the appellant.  There was no application to recall any witness or to call others.  Argument on the validity of the warrants and legality of the search was completed by Mr de Robillard.  He was in a position to rectify any deficiencies that may have been apparent in the appellant’s earlier presentation, and the ultimate ruling was able to be and indeed was challenged on appeal.  No miscarriage has occurred in respect of that issue.
197	It was open to Mr de Robillard, during the period that he represented the appellant, and to the appellant, after he chose to dispense with the services of  Mr de Robillard, to raise any other objection to evidence or matters preliminary to the trial.  There was no miscarriage on that account.
198	Some of the ultimate rulings on matters argued in the relevant period were favourable to the appellant.  Where that occurred there was obviously no injustice to the appellant.
199	Where the ruling was adverse to the appellant, subject to one qualification to be mentioned relating to discretionary exclusion of evidence, it either was or could have been the subject of a ground of appeal.  Where it has not been the subject of a ground of appeal the appellant must be taken to have accepted the ruling.  Where it has been the subject of a ground of appeal, it has either been rejected on the application for leave to appeal as not being an arguable point or leave has been granted and it has become one of the grounds of the appeal.  The result of the argument on that ground will decide whether there was a miscarriage of justice in relation to that point.  It is not sufficient for the appellant merely to argue that in relation to those points he was unable to master concepts and obtain relevant authorities in time to make effective submissions about them.  If his argument was inadequate or if the Judge, with the assistance of counsel, would have made a different decision, that can be corrected on the hearing of this appeal.  If there are some shortcomings in the argument on the appeal, that is by virtue of the appellant’s own choice in representing himself on the appeal.
200	It is insufficient, in a case such as the present, to argue after the event that the appellant, by being unrepresented, was deprived of assistance in a general way with the procedural or substantive issues with which he had to deal.  It might be different if he could point to a failure, through ignorance, to pursue some inquiry on the voir dire which, if it had been pursued, would have resulted in different evidence being led or relevant documents being produced.  By way of example, the appellant made a deliberate forensic decision during the voir dire not to proceed to subpoena documents relating to the issue of the search warrants in New South Wales.  If he had been able to show on appeal that that was an ill-advised decision and that the material, if subpoenaed, would have cast a different complexion on the argument, possibly resulting in rejection of the tender of articles seized under the subpoena, then he might have a chance of success on this ground.  However, his counsel chose not to seek to re‑open that question when he did represent the appellant, and the appellant chose not to pursue that line or to inspect the documents when they were in fact produced under subpoena to this Court for the hearing of the appeal.  In none of the grounds argued on the application for leave to appeal or on the appeal itself did the appellant suggest that some different ruling might have been made by the trial Judge had he had the assistance of counsel in arguing the point.  It has not been suggested that other points would or could have been taken on a preliminary application if the appellant had been represented by counsel for the whole of that time.
201	There remains the qualification referred to above that certain points concerning the admissibility of evidence argued by the appellant, before he was represented by Mr de Robillard, and in respect of which no application was made to re-open the question, were matters which involved the exercise of a discretion by the trial Judge.  It may be said that if they had been argued by counsel, a different ruling may have resulted, with consequences on the evidence able to be led at the trial.  No specific complaint was raised by the appellant on the appeal that any discretionary ruling might have been different if the appellant had been represented.  We do not know if there was a deliberate decision by Mr de Robillard and the appellant not to pursue a matter further before the ruling was made, whether such a decision, if made, was made for tactical reasons, was based on Mr de Robillard’s advice as to the law or was made for some other reason.
202	It must be noted that we are here dealing with an area of the law where differing discretionary decisions may sometimes be arrived at according to differing standards of forensic skill exercised by counsel.  Just because one counsel may be less persuasive than another in advocating the exercise of discretion by a judicial officer does not mean that there has been a miscarriage of justice because another counsel may have procured a different result.  In any event, we know that the appellant demonstrated at his trial and on the hearing of this appeal that he had a clear grasp of the relevant principles applicable to the various points taken, and that he was articulate in arguing them.
203	However, whatever the appellant’s forensic weaknesses may have been in relation to these topics, the opportunity was there, after Mr de Robillard began representing him, to have the matter re‑opened before the ruling was made if it was considered that the appellant had suffered some disadvantage in arguing the matter himself.  Merely because the opportunity was not taken does not mean that there has been a miscarriage of justice.  
204	Finally, there remains the question whether, if the appellant had been represented by counsel at the time, different and perhaps more favorable (to him) forensic decisions would have been made concerning the conduct of the trial.  Where an accused is denied representation for a whole trial, particularly one as complex as this, the conclusion can readily be reached that the accused’s lack of training and forensic experience is likely to have induced decisions about the conduct of the trial as a result of which the accused lost a chance which was fairly open to him or her of being acquitted.  No particular forensic decision need be identified.
205	In this case the appellant prepared his own applications under Rule 9 of the Supreme Court Criminal Rules 1992.  Four of them, involving 121 applications to exclude evidence, had been prepared and lodged before the preliminary hearing commenced on 5 May 2004.  Three more, involving a further 10 exclusions were lodged during the period when the appellant was not represented.  A further application involving one exclusion was lodged after Mr de Robillard’s representation began and before it ended and one further application involving one exclusion was lodged after Mr de Robillard’s instructions were terminated.  During the period prior to Mr de Robillard’s representation of the appellant, no doubt other decisions were made about the conduct of those applications.  During that period the appellant had daily contact with and, one infers, regular advice from Mr de Robillard concerning those applications.  In any event, if it were considered, after Mr de Robillard’s representation began, that some further application should be pursued, the opportunity was there to do so, and was taken.   The opportunity was there to review and to take remedial action in respect of any ill-advised forensic decision taken before the representation began.  It must be repeated that, in considering this ground of appeal, we cannot be concerned about how Mr de Robillard or the appellant conducted themselves from and after 24 May 2004, either on the remainder of the voir dire or after empanelment of the jury.  The appellant’s case was conducted thereafter in accordance with the wishes of the appellant.   The course of the trial and the evidence to be led before the jury had not been finally determined prior to that occurring.
206	In all the circumstances it is not possible to find that the appellant lost a chance fairly open to him of being acquitted by virtue of his failure to be represented by counsel at the relevant time.  Although he was wrongly denied representation when he wanted it, there has been no miscarriage of justice.  Ground 2 of the appeal does not succeed.
4.	Ground 9 – Ms Durrington’s evidence of identification
207	This ground alleges that the trial Judge erred in not excluding the identification evidence of Learne Elizabeth Durrington from the jury.
208	A key issue in the case was the identity of the person who shot Dr Tobin.  A number of witnesses were called who had been asked to identify, from a photographic array, the person they saw at a particular time, be it at the Brisbane Convention Centre, various motels where the accused was alleged to have stayed at material times or, on the day of the murder, at the Citi Centre Building where the murder took place.
4.1	Ms Durrington’s identification – the facts
209	One of the strands of circumstantial evidence relied on by the prosecution was the evidence of identification of Ms Durrington.  She was Director of Community Services in the Department of Human Services and worked on the seventh floor of the Citi Centre Building.  Dr Tobin was the Director of Mental Health in the same Department.  She worked on the eighth floor of the building.  Ms Durrington returned to the building shortly after 11.15 a.m. on the day of the murder but approximately 2½ hours before it occurred.  She entered a lift to return to the seventh floor and was joined in the lift by a male person who was unknown to her, but whom she subsequently identified as the appellant.  She had a brief conversation with him in the lift before she alighted on the seventh floor, leaving the male in the lift by himself.  The evidence was led as one strand of the circumstantial evidence designed to prove that the appellant was in Adelaide on the day of the murder and in the Citi Centre Building within hours of its occurrence.
210	On 11 November 2002 Ms Durrington undertook an identification procedure, which was videotaped, by being asked to identify, if she could, from a selection of twelve head and shoulders photographs, the person who accompanied her in the lift that day.
211	The procedure took an unusual course.  In giving reasons for admitting the evidence, which reasons were published after the trial, the trial Judge described the process as follows:
On 11 November 2002 [Ms Durrington] was presented with the series of photographic images.  Taking quite some time over the procedure, she deliberated between photographs numbered 3 and 5 (Gassy).  She seemed to settle on number 5 but at the last moment changed to number 3.  The procedure was then brought to an end.  During the ensuing 20 minutes or so when she was waiting to be driven back to work the officer who conducted the procedure questioned her as to why she had chosen number 3.  Soon after that she asked whether she could undergo the procedure again.  This time she chose the image of the accused.  In a statement provided during the pre-trial argument and prepared specifically at my request, Ms Durrington indicated that her request to repeat the procedure was motivated not by the police officer’s question but rather by a conviction that she had erred in her selection.  
It seemed to me that while many arguments could be mounted to suggest that little weight should be afforded to Ms Durrington’s final selection, these arguments were to be properly addressed by the jury rather than me.  The process of reasoning followed by Ms Durrington during the first procedure was quite apparent as she was inclined to verbalise it.  It was plain that one of the matters which persuaded her to veer away from the accused’s photograph was that his skin tone was not similar to that of the man she saw.  In fact the photograph used by police was not a good representation of his skin tone.  Moreover, there was so little time separating the first and second procedures that it seemed to me that it would be unfair to the witness and the prosecution to draw an arbitrary line between them and to preclude her from giving evidence of her final selection.  In my view the decision to allow the evidence is consistent with the statements of the Chief Justice in Festa to which I have already made reference.
4.2	Evidence on the voir dire
212	During the course of argument as to the admissibility of this evidence the appellant was offered the opportunity of examining Ms Durrington on the voir dire.  He declined that opportunity, and the decision to admit the evidence was based on the Judge’s viewing of the videotape of the two episodes of identification and the written depositions of Ms Durrington and of the police officer, Detective Huntley, who conducted the procedure and with whom Ms Durrington had the conversation before she undertook the second identification procedure.
213	The appellant objected to the admissibility of the evidence of identification on the ground that the second identification had been tainted by the conversation which took place between the police officer and Ms Durrington between the two procedures, and on the further ground that the evidence was weak, given other descriptions of the person she had seen which did not accord with the relevant features of the appellant.
214	As to the first ground, the Judge had before her not only the videotape of the two procedures but the written depositions of Ms Durrington dated 18 October 2002, 20 January 2003, 25 March 2003 and 12 May 2004, together with the deposition of Detective Huntley relating to a number of photo-identification procedures, including those of Ms Durrington.
215	In her statement of 20 January 2003 she said that after completing the first photographic identification she was shown out of the room by Detective Huntley and had a short conversation with him.  He said, “Why did you pick image 3 over image 5?”. Her response was, “I only saw him for a short while in the lift and the skin tone on 5 is not right”.  She went to the ground floor to wait for her ride back to work.  She then said in her deposition:
Whilst waiting for this ride I thought about my selection and in particular that my original selection was correct, and it was only the skin colour that distracted me, as the critical facial features on image 5 were correct.  During the time I was waiting on the ground floor I spoke with no-one about the process I had just gone through or the selection I made.  As a result I decided I wanted to go back to my original selection and sought to do so.
216	She elaborated on that in her written statement dated 12 May 2004, being the one referred to by the trial Judge as having been provided during the pre-trial argument and prepared at the trial Judge’s request.  In that statement she said:
When making the first selection I selected no.5 of Pack MT D.  I made this selection based on the facial features of the individual in that photograph as it was best likeness to the person I had observed in the Citi-Centre lift and described in my statement.  However the ruddy and reddish skin tone in this photograph was not as I recalled of the person I saw.  Image No.3 of that pack better reflected the skin colour of the person and therefore I chose this image.  This is what the first selection was based on, as the skin colour of the person I saw in the lift was distinctive.
At the completion of the identification process I left the conference room and was shown to the lifts by Fraser Huntley.  Other than the previous stated conversation I was asked to wait in the police station for a ride back to the office.
I sat in the front office of the police station and waited for the police to take me back to my office.  While sitting in the station I thought about the selection.  As stated I thought that the original selection I had made, the person in photograph No.5 (MT Pack D), was actually the correct image from my recollection.  When the police came to take me I asked them if I could go back and make a second identification.
217	She then spoke of the second identification and of selecting image No.10, which in fact was the same as image No.5 in the first procedure.  She said that that photograph, with reddish skin colour, was definitely most like the person she had seen in the lift.  She continued:
The poor quality of this red-faced photograph in both packs had caused me to question my initial response in making the selection.  I had a strong and clear recollection of the person I had seen in the lift.  I can say that I had never previously seen this person in the Citi-Centre building, other than on the 14th October 2002, and have not seen him since.
I do not know Jean Eric Gassy.  I have never seen any photographs of Mr Gassy in the media or elsewhere.  I have worked for the department of human services for the past three and half years.  During this time I have not heard of or had any contact with a person by the name of Jean Eric Gassy.
I can say that I was not influenced in any way to conduct the second viewing of photographs at the police station.  It was a result of my own recollection of the person I had seen in the lift and the photographs in the photo packs.
218	In his statement, Detective Huntley recorded the conversation which occurred after the first procedure to much the same effect, although he recorded Ms Durrington as having said that as she only saw the person in profile, she thought he had higher cheek bones than shown in No.5 and that 3 was a better likeness.
219	The record of the conversation made soonest after the event appears in the videotape of the second procedure where, at the outset, Detective Huntley, by a series of questions, caused Ms Durrington to say what had happened since the end of the previous procedure.  She was asked the “basis” of the conversation between the two of them, and the transcript of the recorded discussion continues as follows:
A.	Um you asked me a couple of questions about my um moving between two choices, and um and what were the, sort of, elements of moving between those choices.
Q.	Yeah um has er speaking with me influenced why you have come back up here?
A.	No, when I sat downstairs I thought through the visual I had and what were the features about that visual that were strong compared to the ones I’d been looking at.
Q.	So the conversation you had with me has not affected …
A.	Nup no no no.
Q.	And you’ve had no other conversation with any other person?
A.	No no.
4.3	The allegedly tainted identification
220	Based on the evidence then before the trial Judge at the time when she was required to rule on the admissibility of the evidence, the Judge was entitled to form the view that Ms Durrington’s request to repeat the procedure was not motivated by the police officer’s question but by the conviction that she had erred in her earlier selection, having been misled by the skin tone depicted in the photograph of the appellant.  She was entitled to form that view not only from the content of the written deposition but from what she had seen of the manner in which Ms Durrington approached the selection as depicted in the videotape of the two procedures.
4.4	The alleged unreliability of the identification 
221	As to the alleged unreliability of her identification, Ms Durrington, when first interviewed on 8 November 2002, had described the male she saw as being 18 to 26 years old.  The appellant was aged 48, although in her cross-examination at the trial Ms Durrington said she did not realise that.  The appellant also relied on the fact that, in the course of making her identification, the photograph of the accused “resembled” the male she had seen; that there was a long delay in her initial selection in the first identification procedure; that in her statement of 8 November 2002 she had described the male as being of “Aboriginal” appearance with fine facial features, which she corrected, in the statement dated 3 February 2003 to “non-Australian Aboriginal”; that, in her statement of 25 March 2004, she described the person as having an accent, “but I could not say what nationality, possibly Sri Lankan”.  It must be noted that there were other features of her description of the man she saw which did accord with relevant features of the appellant.  Finally, the appellant relied on unreliability caused by the delay between seeing the male in the lift on 14 October 2002 and the identification made on 11 November 2002.  There were other grounds relied on by the appellant on the hearing of the appeal, but these related to evidence given by Ms Durrington at the trial and not to matters which were before the trial Judge at the time when she made her ruling as to the admissibility of the evidence.
4.5	The discretion to exclude
222	As with any other evidence, there is a discretion in the court to exclude evidence of identification where its prejudicial effect outweighs its probative value.  This is particularly so where evidence is obtained unfairly or improperly.
223	However, merely because the evidence is weak is no reason in itself to exclude it.  In Festa v The Queen Gleeson CJ said:
Questions as to the admissibility of evidence may be related to, but are different from, questions as to whether the totality of the evidence in a case is sufficient to sustain a jury’s verdict, or questions as to the warnings that need to be given to a jury about the use that may properly be made of the evidence. If evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from a jury’s consideration. It is not enough to say that it is “weak”, and, as already mentioned, whether it is weak might depend on what use is made of it. The totality of the evidence may be such as to render a conviction unsafe. But that does not affect admissibility. And the jury may need to be warned that evidence, if accepted, only shows consistency of appearance between the person and the offender; a fact which may or may not be of much significance depending upon other matters …
For any one of a number of reasons, evidence of observations, including evidence of positive identification, may be made in circumstances which adversely affect its reliability. Those circumstances may be beyond anybody’s control, or they may result, for example, from the way police have conducted an investigation. In Davies and Cody v The King this Court considered evidence of positive identification of an accused by a witness whose previous knowledge had not made him familiar with the accused, and who was first shown the accused, alone, as a suspect. The risk involved in identification made in those circumstances is obvious.
224	Likewise, McHugh J said:
But the weakness of relevant evidence is not a ground for its exclusion.  It is only when the probative value of evidence is outweighed by its prejudicial effect that the Crown can be deprived of the use of relevant but weak evidence.  And evidence is not prejudicial merely because it strengthens the prosecution case.  It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.
Nor is it an automatic ground of exclusion that the identification took place at a court house or after someone has suggested that a suspect may be present at a particular place.  The courts have not gone so far as to say that a court house identification must be automatically excluded where a police officer or other person has suggested that the identifying witness should be on the lookout for the perpetrator of the crime at the court house.  Such statements inevitably weaken the effect of the identification evidence.  They are matters to be considered in determining whether evidence should be excluded because its probative value is outweighed by its prejudicial effect.
225	This Court decided in R v Kostic that evidence led of an identification by means of personal identification in a line-up should not have been admitted because in an earlier statement to the police the witness was positive that the suspect was a woman.  There were no females included in the line-up.  The Court held that by submitting the witness to an all male line-up the police officer was suggesting to him that the person he saw could not possibly have been a woman, and the fact that only males were presented in the line-up suggested to the jury a belief by the police that the suspect must be a man and that the witness’ earlier statement could not be relied on.  There was an obvious feature of suggestibility in that case which rendered the conviction unsafe.
226	On the material before the trial Judge at the time when she was required to rule on the admissibility of the evidence, she was entitled to conclude that the witness had not been influenced in requesting to repeat the procedure by the conversation that she had with the police officer after the first procedure.  It would have been better if the conversation had not occurred, but at the time at which it did occur, the police officer had no idea that the witness would ask to repeat the identification procedure.  It was a question which was not surprising, given the obvious difficulty, as displayed on the videotape of the first procedure, that the witness was having in trying to make up her mind between photographs No.3 and No.5.  Notwithstanding the direction subsequently given to the jury, it was not immediately suggestive that photograph No.5 was that of the appellant.  
227	The fact of the conversation affected the weight that could be given to the subsequent identification because it could never be clear whether the question prompted Ms Durrington to reconsider her previous decision or whether she would have begun thinking about it and have made the request to repeat the procedure in any event.  The trial Judge was entitled to act on the assertion contained in her deposition of 12 May 2004 that she was not influenced in any way to conduct the second viewing, or in making her choice, by other than her own reconsideration of what she had done and the reasons given for that.  She was entitled to let the jury make their own assessment of Ms Durrington’s evidence, albeit with a strong warning to the jury as to the weight that could be given to it.
228	So far as the other alleged weaknesses and inconsistencies in Ms Durrington’s evidence are concerned, they did not provide grounds for rejecting the evidence.  Weak evidence of identification is still relevant evidence, just as is evidence of a person who was in a position to see an accused person and who is unable to identify the accused.  Any person who is alleged to have been in a position to have seen an accused person at some material time will be able to give relevant evidence as to whether the person seen resembled or was the accused.  If it is strong and cogent evidence of identification, it may go a long way towards proof that the accused committed the crime.  If it is weak or the identity of the person seen is not linked to the accused, then it may undermine the prosecution case and will assist the accused.  But the weakness of the identification in itself does not render it inadmissible.  It may require a strong direction from the trial Judge as to the use to which it can be put in assessing the prosecution case, but that is another question.
4.6	A miscarriage of justice?
229	The complaint under this ground is that the evidence was inadmissible.  That complaint must be rejected.  However, that is not the end of the matter.  The question must still be asked whether the admission of the identification evidence in fact resulted in a miscarriage of justice.
230	The evidence given by Ms Durrington and by Detective Huntley as to the conduct of the identification procedures and the conversation that occurred between them was in substance the same as contained in the depositions.  However Ms Durrington’s evidence at the trial exposed a number of other weaknesses concerning her actual identification, such as the fact that her main view of the person in the lift was a profile of his left side, whereas the photographs were all frontal views, and that she had only had a fleeting look at his face as she turned to look at him as she left the lift.  Her hesitation in making the identification was exploited in cross-examination, as was her estimate of age, Ms Durrington having stayed with her previous estimate of age 18 to 26.
231	These and other matters affected the weight of Ms Durrington’s evidence which required the Judge to give a clear warning to the jury about acting on her evidence.  That warning came in the Judge’s summing up.
232	The Judge gave a clear warning in general terms about the acceptance of all the evidence of identification.  That warning is referred to in more detail in the consideration of ground 12 below.  In relation to Ms Durrington’s evidence the Judge gave the following additional direction:
Let me turn then to the evidence of Learne Durrington.  She worked in the Department of Human Services on the 7th level.  At a little after 11 o’clock on the morning of the 14th she walked to the Gays Arcade to get some coffee and then came back, using lift No.1.  A man got into the lift after her and they spoke briefly about the weather.  She gave to you a description of the man as being “not Anglo-Saxon”, of olive complexion, fine featured, high cheekbones, wide brown eyes, five feet six or seven, of indeterminate age with dark wavy brown coarse hair, a short beard or simply unshaven.  She said he was well spoken.
This witness underwent two identification procedures.  That was because on the first occasion, having deliberated between two photographs, she picked out the one which was not of the accused, and this can be seen on the video P78 and the hard copy P80.  Then after that procedure was finalised, she left the area and went downstairs to wait to be driven back to the Citi Centre and Constable Huntley spoke to her and questioned her as to why she had chosen No.3.  Then she asked to undergo the procedure again and this time she chose the photograph of the accused, even though they were remixed.
I can tell you that what occurred in this particular instance is highly unusual and it should give you cause for the greatest concern about relying on the second procedure.  There is a real danger, as it seems to me, that in his question as to why she had selected one photograph over the other, Constable Huntley, perhaps unwittingly, indicated to Durrington that the photograph they had hoped she would pick was No.5.  Certainly he told you that had he known of what was to develop - that she would seek another procedure - he would never have made that comment.
That is bad enough, but there is more.  In cross-examination, Ms Durrington agreed that in her statement she had described the man as being 18 to 26 years of age.  The accused was then 46.  And she had used the word “Aboriginal” to describe the man.  Her answer to that was that she meant not Australian indigenous but cultural aboriginal.  Well, you can see again a good illustration of the dangers of identification evidence.  What, if any, weight you place on Ms Durrington’s evidence is entirely for you, but I would caution against treating it as being of any weight at all.
233	That warning came with the full authority of the office of the trial Judge and was a clear warning against giving any weight to Ms Durrington’s evidence.  The warning was adequate and appropriate.  There was no miscarriage of justice in relation to Ms Durrington’s evidence.  Accordingly, ground 9 of the appeal must be rejected.
5.	Ground 12 – Warnings about identification evidence
234	This ground complains that the trial Judge’s warnings to the jury about the identification evidence were insufficiently specific, detailed and cogent.
5.1	The identification evidence
235	There were eight witnesses who were called to give a description of the person alleged to have been the appellant.  Each of them identified the appellant’s photograph from a photographic array.  The witnesses were:
•	Mr Tuffin, who saw a man said to be the appellant in the foyer of the Citi Centre Building about the time of the shooting;
•	Ms Durrington, the subject of ground 9 of the appeal;
•	Mr Martin Smith, Manager of the Lindy Lodge Motel, said to be the motel where the appellant stayed while he was in Adelaide at the time of the shooting;
•	Mr Pellicone, a hairdresser in a salon a couple of hundred metres from Lindy Lodge Motel who removed the beard of a man said to be the appellant at a time said to be shortly after the murder;
•	Ms Conway, Receptionist at the Shamrock Motel, Balranald who identified a man said to be the appellant who stayed at the motel on the night of 12 October 2002;
•	Mr Ceron, Technical Director for the conference at the Brisbane Convention Centre on 27 April 2002 who observed a man said to be the appellant reading signboards containing information about the conference sessions;
•	Mr Fisher, Security Officer at the Brisbane Convention Centre on 27 April 2002 who saw a person alleged to be the appellant exit from the male toilets on P level of the Centre and move towards the terrace doors.  The person had been reported as acting suspiciously;
•	Mr Allen, Sales Manager, Queensland Gun Exchange in Fortitude Valley on 27 April 2002, who served a customer said to be the appellant seeking a slide for a Glock 26 pistol.
236	Each of these witnesses gave descriptions of the man they saw.  Some had seen an identikit picture of the man the police suspected.  Indeed, that is why some of them identified themselves to the police.  The Adelaide witnesses and Ms Conway were shown the photographic array about four or five weeks after the event.  For the Brisbane witnesses the delay was 6½ to 7 months.  Ms Conway was only shown black and white photographs.  The others were in colour.
237	There were numerous other witnesses who also gave descriptions of a man said to be the appellant at various times and in various locations, including in the Citi Centre Building, in the lift in which Dr Tobin and the likely killer travelled in the building, in Brisbane and at the Brisbane Convention Centre in April 2002.  This list is not exhaustive.  Those witnesses either were not shown or were unable to identify the appellant from a photographic array.  There was evidence that another seven patrons of the Lindy Lodge Motel at the time when the appellant was said to be staying there were unable to recognise the appellant in a photographic array as being someone they might have seen whilst staying at the motel.
5.2	The approach to identification evidence
238	The approach that must be taken by a trial Judge to evidence of identification, particularly by means of photographic array, has been clearly stated in a number of cases.  In their joint judgment, the High Court in Domican v The Queen stated a number of general propositions applicable to all cases in the following terms:
In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyse all the conflicts in the evidence, and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice. 
…
Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way. [Footnotes omitted]
239	The Court then made some particular observations with respect to evidence of identification:
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed.  The terms of the warning need not follow any particular formula.  But it must be cogent and effective. It must be appropriate to the circumstances of the case.  Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”.  A warning in general terms is insufficient.  The attention of the jury “should be drawn to any weaknesses in the identification evidence”.  Reference to counsel’s arguments is insufficient.  The jury must have the benefit of a direction which has the authority of the judge’s office behind it.  It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. [Footnotes omitted]
240	Other cases have repeated warnings to similar effect.
241	In his judgment in R v Southon, Sulan J elaborated on the different approaches that may be needed in particular circumstances.  He said:
Where there is evidence which identifies the accused as the person who committed the crime, or from which the jury is asked to conclude that it was the accused who committed the crime and the reliability of that evidence is disputed, a trial judge is required to warn the jury of the dangers associated with such evidence.  The extent of the warning will vary according to the circumstances of the case.  The warning will remind the jury of mistakes that can occur when witnesses are asked to identify a person who committed the crime.  Such factors as the lighting at the time, whether the witness knew or had seen the accused before, the length of time that the witness had to observe the accused, whether the witness was panicking at the time, and other matters which may have distracted the witness are just some of the factors to which the judge might refer.  The circumstances of the identification are also relevant.  For example, if the identification was made at a line-up and it was some months after the event, the judge should caution the jury about the possibility of error.  If the identification was by way of photographic array, then the judge should direct the jury about the deficiencies of such a method of identification.
There is also evidence which identifies the accused but forms part of the circumstantial evidence upon which the case depends.  On occasions, a witness will pick out an accused in a line-up, or by some other method, and identify the accused as a person who looks similar to the person who committed the crime.  In effect, the witness is saying that the person who is picked out is of a similar height and build, has similar facial characteristics and has similar coloured and length hair and other identifying features as the person who committed the crime.  This evidence is circumstantial evidence.  It is evidence to which the jury is entitled to have regard when considering whether the prosecution has proved that the accused was the person who committed the crime. In those circumstances it may be necessary for a trial judge to give a warning comparable to that which may be given when there is direct evidence of identification. [Footnotes omitted]
5.3	The significance of the identification evidence
242	In this case, each of the descriptions of the persons said to be the appellant and, where they were made, the photographic identifications, were on the prosecution case merely strands of a much more comprehensive circumstantial case tending to show that the appellant was at the Brisbane Convention Centre in April 2002, was in Adelaide on the day of the murder and was in the Citi Centre Building at the time of the murder and on each occasion behaving in a manner consistent with him being the killer of Dr Tobin.  None of the identifications was the sole means of establishing those facts.  It was not a direct evidence case of the type discussed by Sulan J in Southon.  It was not a case where a single personal identification by means of a photographic array becomes a necessary link in a chain to prove that it was the accused who committed the crime.  In such a case it may even be necessary for the fact finder to find that identification of the accused is proved beyond reasonable doubt if the prosecution is to succeed.  In such a situation a trial Judge will need to give a jury some very careful directions identifying any weaknesses in, or associated with, that particular identification.  The same attention to detail may not be necessary where there are many acts of identification forming strands of a much wider circumstantial case.  Nevertheless, warnings appropriate to the circumstances of the case must be given.
5.4	The trial Judge’s directions
243	The trial Judge’s summing up on what she described as “recognition evidence or identification evidence” was extensive and thorough, occupying just under one fifth of her primary summing up of the whole case.  She began by pointing out the relevance of the evidence as adding to the circumstantial case presented by the prosecutor.  She went on to give warnings about the dangers associated with identification evidence generally and how it can be unreliable.  She mentioned a number of factors which the jury would have to consider about the nature and circumstances surrounding each act of identification, reminding them of a great many detailed circumstances that could bear on the reliability of the evidence.  She mentioned the lapse of time between a sighting and the purported identification, the fact that most had seen an identikit picture of the suspect before making the identification and that some only had a fleeting view of the suspect.  She mentioned the limitations associated with photographic identification compared with a physical line-up, pointing out that such limitations were not cured by an in court identification due to the well‑known displacement effect.  She warned the jury generally and effectively about the use that could be made of in court identifications.  The Judge concluded her general remarks as follows:
Those are the general matters touching identification evidence on which I need to direct you.  The answers to the various questions posed will, of course, alter depending on the particular witness under consideration.  The answers will guide you as to the weight that you can give to any particular identification.  Once you have assessed it in that way, you are perfectly entitled to examine it against other evidence which may tend to confirm its correctness.  Indeed, you can put it into the balance alongside all the other evidence in the case.
I shall turn to discuss some of the witnesses in a little more detail, but I reiterate the warning.  This evidence must be approached with great caution.  Honest witnesses can be mistaken, but their evidence can be all the more compelling because they believe it themselves.  Different witnesses can make the same mistake.  Miscarriages of justice have occurred because jurors have been inclined to give greater weight to identification evidence than it deserves.
I suggest that in this case the great majority of identifications have been made on the basis of very limited opportunity to observe the suspect.  All identifications have been made using photographs.  In those circumstances, I suggest you keep firmly in mind the shortcomings of any particular identification and, in addition, that you look for other independent evidence which tends to support any particular identification before placing weight on it.
244	The Judge then proceeded to discuss in detail the evidence of each of the eight witnesses who had given evidence of positive identification of the appellant by means of the photographic array.
245	In the case of Mr Allen she pointed to the length of time (6½ months) between the sighting and the identification.  She summarised his evidence and reminded the jury of the appellant’s suggestion that there was no face to face meeting at all, the issue in this case being as to whether he had seen the appellant at all or whether transactions were conducted over the telephone.
246	The Judge turned to what she described as “the purported identifications of Mr Tuffin and Ms Durrington”.  She summarised the evidence of Mr Tuffin, pointing out that he had the subject in his sight for only a matter of seconds and the lack of certainty in his identification.  She quoted his evidence as being an example of evidence which is “fraught with the dangers that I mentioned to you earlier in terms of mistaken identity”.  The Judge went on to point out a number of factors affecting the reliability of his identification and cautioned the jury “to be extremely careful in giving any weight to Mr Tuffin’s identification”.  The appellant complains that a number of other inconsistencies were not mentioned to the jury, but it was not necessary for the Judge to recite every piece of evidence given by Mr Tuffin.  The warning about his evidence was clear and the reasons for it were apparent to the jury.
247	The Judge then summarised Ms Durrington’s evidence in terms which are set out in full in the discussion on ground 9.  Once again the appellant complains of the omission to mention some relatively minor details of her evidence.  There was no omission of any substance.  The warning against acting on Ms Durrington’s evidence was very clear.
248	The Judge then discussed the evidence of Mr Ceron and Mr Fisher, the two witnesses who gave evidence of the person they saw at the Brisbane Convention Centre.  She summarised their evidence and pointed out the uncertainties apparent in their identification from the photographic array.  In relation to these two witnesses she concluded:
Again I caution you about this evidence, particularly having regard to the fact that the individual at the Convention Centre was unknown to both witnesses, that there was only limited opportunity to see him and there was no face to face interaction.  Further, as applies with Mr Allen, the photographic array procedure was not undertaken for seven months after the incident.  I highlight those four matters, but, of course, I emphasise that in relation to each of these identifications you should have regard to the entirety of my earlier directions about the factors at play and the care which is required to be taken.
249	Again, there is criticism by the appellant of the failure to mention one or two minor details.  However, the warning was adequate and clear.
250	Mr Pellicone’s evidence was summarised along with the uncertainties surrounding his identification.  He had picked out the photograph which “I thought looked like him, but I wasn’t sure though”.  The Judge referred to the “difficulties” about relying on his identification evidence and reminded the jury that in cross-examination it became apparent that he had also been shown a photographic array containing images with men without beards, including the appellant, and that he was unable to make a selection, even though he was the man said to have removed the appellant’s beard.  The Judge referred to discrepancies in Mr Pellicone’s description of the suspect and his assertion that he had only removed the person’s beard and had not cut his hair, which was in a ponytail.  The Judge contrasted that evidence with the evidence from the videotape at the Renmark Service Station said to have been taken while the appellant was on his return journey to Sydney from Adelaide, and showing the appellant with a short back and sides haircut.  The Judge warned the jury that for all the reasons given they “should be very careful in relying on his identification”.
251	In relation to the identifications by Ms Conway and Mr Smith, the Judge said that the jury could conclude that the guest calling himself Mr Paes at each establishment was the one man.  Both had seen an identikit picture and both independently selected the appellant’s photograph.  The Judge pointed out the extent of the contacts in each case and the need of the witnesses to remember who their guests were for the duration of a stay.  The Judge reminded the jury that, notwithstanding the relevant strength of the identifications, they still had to pay careful regard to the matters she had already put to them.  In their case she also pointed out that there was some corroboration of their identification through the evidence of a handwriting expert and the appellant’s former secretary as to the appellant’s presence at those establishments.
252	The appellant complains about the omission of the Judge to mention some relatively minor details and the fact that no DNA or fingerprints were found at either motel.  That is not surprising, as the Judge, at that stage of her summing up, was summarising the prosecution case and in particular the evidence of identification.  For the same reason, there was no need to mention the failure of the waitress at the Shamrock Motel, Balranald, to select any image from the photographic array or the failure of the Judge to mention that none of the seven guests of the Lindy Lodge Motel who took part in identification procedures selected the image of the appellant.
253	The appellant also complained, in respect of a number of witnesses, that the clothing that they described the suspect as wearing was not located during a search of the appellant’s home.  Once again, the Judge, at that stage, was summarising the prosecution case.  The failure to find matching clothing was equivocal and could be explained on a number of grounds.  Besides, the clothing worn by the suspect formed no part of the photographic identification the subject of challenge on this ground.
254	None of this evidence could, in itself, identify the appellant as the killer of Dr Tobin.  The witnesses, with varying degrees of cogency, were merely identifying that a person they could see in the photograph bore similar characteristics to the person they saw at the particular time and place.  The identifications constituted, in each case, but one element of a complex web of circumstances which tended to establish that the appellant was present at the time and places in question.  In those circumstances the jury was adequately and properly directed both as to the general approach that should be taken to the evidence relating to each identification and as to the pitfalls affecting the weight of each episode of identification.
255	Ground 12 of the appeal is not made out.
6.	Ground 13 – Trial Judge’s comment regarding number plates
6.1	Background
256	For the period including the day when the appellant was alleged to be at the Brisbane Convention Centre, the appellant had hired, in Sydney, a Queensland registered motor vehicle with the registration number 183-GEO.  It was a blue Nissan Pulsar sedan.  A man said to be the appellant supplied the registration GCO-183 to the Edmonstone Motel in Brisbane.  The registration “183-GEO or Q” described as “a green/blue hatch back” was recorded in the security log at the Brisbane Convention Centre as being the car driven away by the person said to be the appellant.  There was evidence that the vehicle bearing the registration 183-GEQ was a white Nissan X-trail wagon belonging to persons living at Roma in Queensland. The appellant, who denied being at either the Motel or the Convention Centre, argued that there could be other vehicles in Australia with the registration numbers 183-GEO or 183-GEQ.  In commenting on that submission the trial Judge said:
It has been suggested to you there may be other vehicles of that registration 183-GEO in Australia and that the certificates that you have only cover Queensland and New South Wales.  I might say that I would not think that the South Australian registration numbering system has any number beginning with G.
257	The appellant submits that the trial Judge erred in making the comment in italics in that extract.
6.2	The appellant’s complaints
258	The appellant argues that it would not have been common knowledge among the jurors that the registration 183-GEO does not exist in the ordinary South Australian numbering system and further, that if the trial Judge sought to take judicial notice of that fact then she was required to invite submissions on the topic from both parties.
259	The appellant submits that there was no evidence before the court relating to the South Australian system of vehicle registration and that the onus was on the prosecution to lead evidence to disprove his argument that there may have been other vehicles with the registration number 183-GEO but that it had failed to do so.  He contends that the statement had the effect of overcoming a weakness in the prosecution case, that it effectively lowered the burden of proof and that it demonstrates bias on the part of the trial Judge.  It is argued that the statement contributed to a miscarriage of justice.
6.3	A miscarriage of justice?
260	The comment by the Judge seems to have lacked any relevance.  The submission made by the appellant to the jury was that it had not been shown that there was not another vehicle in Australia bearing the registration number 183‑GEO or 183-GEQ.  The appellant was not, in his address, referring to the number recorded on the registration slip of the Edmondstone Motel.  The numbers of which he was speaking did not begin with “G”.  Therefore, a comment by the Judge that she would not think that the South Australian registration numbering system has any number beginning with “G” had no bearing on or relevance to the submission on which the Judge was commenting.  The comment was unnecessary but not misleading.  It did not take any further the fact referred to by the Judge that the evidence before the jury only showed that there were no other vehicles bearing those registration numbers in Queensland and New South Wales, leaving open the possibility that there were in any of the other States and Territories.
261	The fact that ordinary registration plates in South Australia all begin with letters and not numbers is common knowledge.  The jury would have been entitled to conclude, independently of the Judge’s comment, that the numbers to which the appellant was referring were not standard South Australian numbers.   If South Australian, they would have to be personalised numbers.  Furthermore, it is likely that any juror turning their mind to the question would realise by virtue of their everyday experience that ordinary registration plates in South Australia do not display a letter sequence beginning with G.
262	In any event, the jurors were not, and would not have considered themselves to be, bound by the trial Judge’s comment.  The jurors were directed to come to their own conclusions on the facts.  It must be presumed that they followed the directions given.  It was open to the jury to consider the trial Judge’s statement, if it was relevant at all, in light of their collective general knowledge and decide whether it was justified.
263	Even if the statement carried some weight with the jury, it did not dispose of the appellant’s argument. The jury was still obliged to consider the likelihood of the registration number having been used elsewhere in Australia other than in the States of Queensland and New South Wales.
264	For these reasons the statement complained of does not demonstrate bias or amount to an attempt to assist the prosecution.  It was a comment on a matter of common knowledge.  In assessing the appellant’s argument the jurors would have applied their general knowledge about South Australian registration plates regardless of any statement made by the trial Judge.  Finally, as against the overall background of factual matters which were in issue about the appellant’s alleged presence in Queensland, the question of whether there existed a South Australian-registered vehicle 183-GEO or 183-GEQ was relatively insignificant.
265	 For these reasons it cannot be said that the statement contributed to a miscarriage of justice.  This ground of appeal must fail.
7.	Ground 14 – The trial Judge's redirection to the jury
7.1	The course of the jury’s deliberations and the Judge’s redirection
266	The jury retired to consider its verdict at 5.43 p.m. on Tuesday 21 September 2004, having been empanelled for the trial on 8 July 2004.  They had sat for 2½ months on a circumstantial case of some complexity.  They retired for the night at about 8.30 p.m., resuming at 9.15 a.m. the next morning.
267	The Judge answered a question, not relevant for present purposes, at about 2.15 p.m., and later received a note from the jury saying that they did not believe they would be able to reach a verdict.  This was less than 24 hours after they had retired.  At 4.16 p.m. the jury returned and the Judge said:
Ladies and gentlemen, thank you for your note.  I understand from it that you do not believe that you will be able to reach a verdict in this matter.  Of course, I respect your position but, in terms of the scale of this case, the number of witnesses from whom you have heard, and the time that submissions have taken, and indeed my summing up, your deliberations have not been prolonged.
268	That was immediately followed by a Black direction.  The jury returned to the jury room and retired for the night at 7.52 p.m.
269	On the next morning (Thursday 23 September), before they resumed their discussion, the trial Judge invited the jury to seek further assistance if they considered that they needed it in making a decision.  The Judge later received a note from the jury in the following terms:
The Jury would appreciate having your suggestions on moving on from this position we are in at this stage.
270	Neither this note nor any of the previous communications gave any indication of the nature of the difficulty that the jury had encountered.
271	The trial Judge then addressed the jury for about 15 minutes.  She began by saying:
Ladies and gentlemen, thank you for your note.  I will do what I can, in the hope of assisting you.
Sometimes, when one reaches a difficult position and cannot move on, of course, it is good to go back to the beginning.  I am not suggesting that you would start the whole process again, of course.  I am not suggesting days of work.  But rather, why not take stock right back from the beginning and then, from that point, see if you can move forward in a different way.  A good thing to do along the way is to sort out the common ground.  And once you have got that common ground, ask yourselves how that helps you.  What does it tell you?
Now, you will remember in my summing up I spoke to you about a number of different topics which I suggested made up the prosecution case.  That is only my way of labelling them.  You might have done it differently but, since it is the way I used, I am going to go back to that.  But I do suggest that you look at them in a new order, not the order which I gave you previously.
272	The Judge then invited the jury to examine the evidence relating to each of five topics which she had identified during her main summing up as making up the prosecution case.  Those topics were “Equipment”, being the weapons available to the accused, “Motive”, the “Brisbane evidence”, “Opportunity” and evidence at “the Scene”.
273	She had, in the main summing up, discussed the prosecution and defence cases in respect of each of those topics.  She invited the jury, in relation to each topic, to identify their common ground and, if they were at one, to move onto the next topic and ask the same question.  On the topic of the "Brisbane" evidence the Judge stressed that that was a very important part of the prosecution case, and that in order to convict, they would have to be satisfied beyond reasonable doubt that the accused was the man at the Convention Centre, that he was there for a purpose related to Dr Tobin and that his motive was a sinister one. 
274	In relation to none of the topics did the trial Judge attempt to canvass the evidence.  She was merely suggesting a process which the jury might adopt, if they saw fit, in relation to each topic.  She reminded them that they would need to call to mind all the evidence that bore on each topic and to call to mind the arguments that the prosecutor and the appellant had put about them.
275	The appellant complains, for example, that the Judge said nothing about the evidence of his alibi that on the weekend of the killing he was the only one who could have made the phone call that was made from his Sydney home.  Yet that would necessarily have been considered on a reconsideration of the “opportunity” evidence.
276	The last topic the Judge mentioned was the scene of the killing.  She mentioned that she had spent little time on that because it did not help the jury very much as to the identity of the killer.  Nevertheless, she reminded the jury that they knew from that what type of killing it was and that possibly the fourth man in the lift was the killer.  However, she reminded the jury that there were competing arguments about that.
277	The Judge then continued:
Of course, I do not know where your difficulty is but, if you get through that process, then you could ask yourselves “Are we in agreement to this point?”  And I say again, if you are not, then you need to isolate the exact point where your views diverge and you need to focus on that point and you need to go through that process:  “What is the evidence on this point?  Do we have adequate recall of that evidence?  Do we need to hear some of it read?  Do we need a summary of it?  Do we need to know again what anyone said about it?”  Make a list, I suggest, of that evidence and then make a list of the arguments on both sides relating to that point and then analyse those arguments.
278	One of the topics that the Judge had addressed in her main summing up, and which was included in the review process which the Judge suggested, was whether the appellant was in Adelaide when Dr Tobin was killed.  Following the passage quoted above the Judge then said:
Now, let me assume, for the purpose of this exercise, that you are in agreement to that point.  The next question, of course, would be: “Now we have decided the accused was in Adelaide when Dr Tobin was killed, what was his purpose for being here? Did he kill her?”  So then you ask “What evidence helps us on that point?”  Here you will remember I gave you a direction about the use of the Brisbane evidence. It is a difficult direction in a way and I wonder whether it might help you if I gave it to you again.
279	The jury indicated that they would like the direction repeated.  The direction was repeated.  It was about the use of the Brisbane evidence and its potential relevance, namely its tendency to prove the appellant’s presence in Adelaide and his purpose for being there.
280	The Judge concluded her supplementary remarks by saying:
Well, again I say to you, if that is the point of difficulty, make a list of the evidence that bears on those matters, discuss what can be drawn from that evidence, recall the arguments as to each of those matters, decide whether you adequately recall all the evidence and all the arguments as to it and, if you do not, then please ask for help.  And that, as I said, could be reading from some passages of a particular witness’s evidence (and you could direct me to the very points that you wanted read out) or it might mean reading a part of my summing up again or asking me for a summary of something that you thought important.  And I could compile something like that and let you have it.
281	Viewing this supplementary direction as a whole, it was not intended to be, nor was it, a review of the evidence on which either the prosecution or the defence relied.  If the jury followed the process suggested it would necessarily require a review, in considering those topics, of the evidence of which they had been reminded during the course of the prosecutor’s address, the appellant’s address and the Judge’s summing up.
282	Following a brief discussion with the prosecutor and the appellant after the jury had retired, the Judge brought them back again to emphasise that what she said were merely suggestions for consideration and no more, and corrected one unintended omission from her supplementary direction.
283	The jury retired finally at 11.41 a.m. and returned at 12.16 p.m. with a unanimous verdict of guilty.
7.2	Undue pressure on the jury?
284	There are two criticisms of these supplementary directions.  The first, included by amendment at the hearing of the appeal, is that the Judge erred in inserting the passage quoted in para.[267] above immediately before giving the Black direction.  It is said that this paragraph implied that failure to reach a verdict would cause considerable public inconvenience and expense, thereby imposing undue pressure on the jury to reach a decision.  This was one of the grounds on which the appeals were allowed in Black v The Queen.
285	The passage complained of contains no such implication.  If anything, the Judge was encouraging the jury to take more time, and telling them that, in the context of the scale of the case, they had not in fact been deliberating very long.  Far from applying pressure to the jury, the Judge was doing the opposite, encouraging the jury not to feel disheartened because they had not been able to agree after what was a relatively short time.  There is no substance in this criticism.
7.3	Whether the redirection was unbalanced
286	The second complaint relates to the supplementary direction that the trial Judge gave on the day of the verdict when the jury said that they would appreciate having the Judge’s suggestions on moving forward from what appears to have been a point of difficulty.
287	The appellant complains that, in dealing with the topic of the scene of the shooting, the trial Judge did not put many important aspects of the appellant’s case based on the evidence of what took place at the scene.  However, that misconceives what the trial Judge was then undertaking.  It was not a survey of the evidence but a suggestion as to process which required the jury to analyse all the evidence relevant to that topic to see if they could reach agreement on the inferences to be drawn from the evidence on that topic.  Evidence as to what took place at the scene would necessarily have to have been considered in discussing the final questions raised by the Judge, namely the purpose for the appellant being in Adelaide and whether he killed Dr Tobin.
288	The appellant also argues that the Judge, during this supplementary direction, suggested that the jury should find that the appellant was in Adelaide at the relevant time.  The relevant passage is quoted above.  The effect of that direction was not as put by the appellant.  What the trial Judge was doing was asking the jury to assume that they had followed the process she was suggesting and had reached a point of agreement that the accused was in Adelaide when Dr Tobin was killed.  She was merely suggesting the questions that would then arise if they had got to that point.
289	A further criticism is that the Judge told the jury that the Brisbane evidence “tends to prove the accused’s presence in Adelaide and his purpose for being there”.  Again, that is a misunderstanding of the direction.  The Judge had just repeated her principal direction as to the use that could be made of the evidence, if accepted, that the appellant was in Brisbane earlier in the year.  The Judge at all times made it clear that it was for the jury to decide whether in fact he was in Brisbane and whether he was there for a particular purpose.  The Judge was explaining the potential relevance of the Brisbane evidence if the inferences which the prosecution sought to be drawn from that evidence were able to be drawn beyond reasonable doubt.  The Judge pointed out that a conclusion that the accused was the man in Brisbane could take on “a decisive character in relation to your deliberations about the identity of Dr Tobin’s killer in Adelaide”.  She then continued, in the passage which is criticised:
It is for you to say whether such a line of reasoning is helpful in this case.  The potential relevance of the Brisbane evidence is then its tendency to prove the accused’s presence in Adelaide and as to his purpose for being here.  That is the proper use of the Brisbane evidence.
290	The Judge was not suggesting that the jury should conclude that the Brisbane evidence tended to prove the appellant’s presence in Adelaide and his purpose for being there.
291	The appellant also made a submission about the short time which elapsed between the supplementary direction and the return of the verdict of guilty, and submitted that the direction had been given for the purpose of ensuring a conviction on the anniversary of Dr Tobin’s birthday.  This submission is quite baseless.  The supplementary direction did not amount to a direction or suggestion to convict, and there is no suggestion that anyone, other than the appellant, was aware that that day was the anniversary of Dr Tobin’s birthday.
292	The fact that the jury returned relatively soon after the supplementary direction with a verdict may merely indicate that, if the jury did follow the process suggested by the Judge, what may have been only one sticking point was able to be resolved by adopting the suggestion.  The fact that during the redirection the jury specifically asked for the direction about the Brisbane evidence to be repeated might even suggest where that sticking point was.
293	The trial Judge was aware that the jury appeared to be having some difficulty.  It was appropriate for the Judge to make a suggestion as to how they might approach the evidence and identify any areas of disagreement or uncertainty for discussion before proceeding to the next step.
294	All the Judge did was to suggest a process to the jury.  At no stage did she suggest the conclusion that should be reached at each stage.  It was not her Honour’s intention to, nor did she, recite the respective cases of the prosecution and defence as to how the various issues should be decided. That had been done in the principal summing up.  The Judge did spend more time discussing the Brisbane evidence than any other topic but that was because she was asked by the jury to repeat her direction as to how the jury could use that evidence, if they found the appellant’s presence in Brisbane at the relevant time proved beyond reasonable doubt.   As the Judge did not know where the jury was having trouble in reaching agreement, it was appropriate to suggest the division of the case into stages and to suggest attempting to reach agreement as to one stage before moving on to the next.  That did not amount to suggesting a line of reasoning leading to a verdict of guilty, nor was it suggesting what conclusion the jury should reach at each or at any stage.  It merely suggested an orderly approach to decision making in what was a circumstantial case of some complexity.
295	In making the suggestions she did, the trial Judge did not suggest or imply that the jury should find that the questions arising in relation to any topic should be answered in favour of the prosecution.  It was implicit in the suggestions made that all the evidence and arguments which the jury had heard were to be taken into account on each of the topics in question.  In respect of some of the topics the Judge actually reminded the jury of their duty to do that.  The direction was not unbalanced but was neutral.  It did not imply that any issue should be decided adversely to the appellant.
296	This ground of appeal does not succeed.
8.	Grounds 16.1 and 16.2 – Statements in summing up regarding accuracy of the appellant’s address and evidentiary basis of submissions
8.1	The complaints
297	Grounds 16.1 and 16.2 can be conveniently dealt with together. The appellant submits that the trial Judge erred in making the following two statements in the course of her summing up:
“In Dr Gassy’s address to you he has not always been accurate”; and 

Dr Gassy “sometimes put submissions for which there is no evidentiary basis”.

298	The appellant’s primary complaint, in relation to both statements, is that the trial Judge did not give details of the specific aspects of the appellant’s address said to be inaccurate or identify which submissions were lacking an evidentiary basis.
8.2	Context of the directions
299	The statements must be read in the context of the summing up as a whole.  The Judge had given some general directions and directions as to the elements of the crime of murder.  She indicated that she was moving to a consideration of the evidence and the main limbs of the prosecution case, to be followed by a discussion of and some warnings about the identification evidence.  She had referred to the “thorough” address of the prosecutor and the consequent lack of need to descend into any great detail in discussing the evidence relied on by the prosecution.  The passages complained of appear in the following paragraph:
In Dr Gassy’s address to you he has not always been accurate in his references to evidence, and I say that not to criticise him because, as I said to you before, his task is a daunting one.  But in addition he has sometimes put submissions for which there is no evidentiary basis.  In what I am about to say I will be very careful to be accurate and you will know that you can rely on my statements of the evidence.  If I am inaccurate, after you have retired Mr Brebner or Dr Gassy will correct me and then I will bring you back to correct what I said.
300	The appellant recognises that the trial Judge was not intending to be critical.  In making the statements complained of, the trial Judge was not in any way suggesting that the appellant had deliberately misled the court.  She was in fact attempting to assist the appellant by alerting the jury to the fact that his mistakes could be attributed to the enormous difficulty of the task with which he was confronted as an unrepresented defendant.  Nor is it in dispute that it was certainly within the trial Judge’s discretion to correct errors in the closing address.
301	However, the appellant argues that the failure to particularise the inaccuracies and submissions made without evidentiary foundation undermined his entire case.  He contends that as a result of the statements it would have been unclear to the jurors which aspects of his defence they could rely upon, and consequently they may not have viewed any of his arguments as credible or legitimately open on the evidence.
8.3	Whether the directions were unfavourable
302	It is true that the trial Judge did not immediately go on to list the problematic aspects of the appellant’s address.  However, the whole purpose of the summing up was for her to recall the evidence and summarise it for the benefit of the jury.  Her comments must be read in that context.  The clear direction to the jurors was that they should listen carefully to her restatement of the factual issues which they had to consider and decide upon, because she would be extremely careful to put those matters to them accurately.  In doing this, the trial Judge was able to overcome inaccuracies and unfounded submissions put by the appellant without highlighting each mistake individually.  The jury would realise, where there were differences between what the Judge said and what the appellant had said, where his submissions were inaccurate or unfounded.  If the Judge had identified every inaccurate or unfounded submission the result would have been extremely damaging to the appellant’s case.
303	The respondent has identified a large number of errors in the appellant’s closing address. The appellant disputes the majority of the alleged errors.  However, it appears that most of the respondent’s complaints are justified.  Some are quite serious errors, others are fairly innocuous inaccuracies. It is not necessary to set each of them out here.  It is sufficient to note that the errors warranted the comments made by the trial Judge.
304	It would not have been a simple and straightforward task for the trial Judge to have identified the problematic aspects of the appellant’s address.  Had she gone through each error individually and explained it to the jury, it would have been prejudicial to the appellant’s overall case.  Such a lengthy exercise would have focused the jurors’ attention on the weaknesses in the appellant’s case and his credibility would have been compromised.  There would be a risk that instead of remaining neutral, the overall balance of the summing up would have tilted in favour of the prosecution.
305	It would have also interrupted the flow of the summing up and distracted the jury from the task at hand.  It was preferable to merely alert the jurors to the fact that there were some inaccuracies and leave it to them to determine for themselves, with the assistance of the summing up as a whole, where those inaccuracies lay.  This was not a task beyond the capability of the jury.  It cannot  be said that, on the basis of the statements complained of, the jury would have dismissed all of the appellant’s arguments as unfounded.
306	These grounds of appeal are not made out.
9.	Ground 16.4 – Statement in summing up regarding Telstra
9.1	The evidence
307	Telstra records indicated that at approximately 7.30 p.m. on the day that Dr Tobin was fatally shot, a call of 18 seconds duration was placed from the Gassy residence in Sydney to the mobile phone of a man named Shane Teasel.  The appellant claimed to have been in Sydney at the time of the shooting and claims to have made the call to Mr Teasel, who was not known to the appellant.  His explanation for having called Mr Teasel’s mobile number (0419 224 906) was that he was attempting to telephone his cousin (0412 265 296) but dialled the incorrect number.  He claimed that the reception was poor so he did not check that he had the correct number or attempt to call back. 
308	Although Telstra’s records indicated that Mr Teasel’s mobile phone was answered, he did not remember taking the call.  He gave evidence based on his usual daily routine that he would most likely have been in the kitchen when Telstra’s records indicated that the call was received, and that the reception in his kitchen is strong.
309	Telstra records also indicated that a number of calls to the Gassy house went unanswered during the time when it was alleged that the appellant was in Adelaide.  His explanation for this was that the calls were either made during times when he was out of the house or that he chose not to answer the telephone as the calls were most likely to have been for his mother.
310	The appellant argued that the call to Mr Teasel could only have been made by him because the other occupants of the house, namely his parents, were overseas at the time.  The appellant submitted that the only other person who might have had access to the house was his sister, but that she said that she did not go there during the period in question. The appellant denied having installed a computer program designed to dial numbers in his absence, as was suggested by the prosecution, and argued that if he had done so there would be evidence on the hard drive, even if the program had been subsequently uninstalled.  He argued that had he used such a program it would have been logical to set it up to make numerous calls and that an answering machine could have been used to intercept incoming calls.
9.2	The appellant’s complaint
311	The appellant submits that the trial Judge erred in making the following statement in the course of her summing up:
Well, if you believe that Telstra cannot get it wrong then you will have to consider who might have been in the Gassy household at that time to have made that call.
312	The appellant submits that this amounted to an impermissible suggestion that Telstra’s records were inaccurate when their accuracy was never in issue.  He contends that the statement destroyed his alibi in the eyes of the jury by casting doubt as to whether the call was made at all.  The appellant claims that the statement demonstrates support for the prosecution case and effectively lowered the prosecution’s burden of proof.
9.3	Resolution of the complaint
313	Although an officer of Telstra gave evidence that she believed that the call must have been both made and received as reflected by the company’s records, it was still open to the jury to consider the possibility that the records were inaccurate.  This is especially so given that Mr Teasel did not remember receiving the call.  Simply because it was the prosecution’s case that a computer program was used to dial Mr Teasel’s number does not mean that the jury was not able to consider other possible explanations.  Indeed it was appropriate for the trial Judge to direct the jury in her summing up to consider the different possible factual scenarios, which would have included that the call was in fact never made, that a computer program was used, that Dr Gassy made the call as he claims or that another person made the call.  The assessment of each possible scenario would be influenced by its general plausibility and likelihood and also by the credibility of the witnesses giving evidence in support of each proposition.
314	The crucial issue was that the jury must have been satisfied beyond reasonable doubt that the appellant was in Adelaide at the time of the shooting.  The trial Judge gave clear directions about this.  The jury had to consider the appellant’s assertion that he made the call to Mr Teasel.  But they also had to consider all of the circumstantial evidence which pointed to him being in Adelaide.
315	In light of the directions that were given to ensure that the jurors understood that they had to be satisfied beyond reasonable doubt that the appellant was in Adelaide, there is no risk that the statement could have been misinterpreted or given undue weight so as to pose a threat of a miscarriage of justice.  The statement complained of does not constitute an error and this ground of appeal must be dismissed.
10.	Ground 18 – Refusal to permit further cross-examination of witnesses
316	The appellant submitted that the trial Judge had erred in refusing to permit him to cross-examine further the witnesses Peter Lawrence and Robert Champion.
317	The appellant made two applications for leave to cross-examine further Sen Const Lawrence:  the first at the conclusion of his re-examination and before he had been released and the second some six days later.  The application in respect of Mr Champion was made some four weeks after his evidence had been completed.
10.1	The Principles
318	A decision to recall a witness whose evidence has been concluded for further cross-examination, or to allow further cross-examination of a witness still in the witness box after the re-examination has been completed, involves an exercise of discretion by the trial judge.  That discretion is to be exercised having regard to the requirements of the interests of justice in the circumstances of the case.  Ordinarily, the interests of justice would favour the grant of leave where the evidence sought to be adduced has been overlooked and no prejudice would be occasioned to the other party.  Some authorities have gone further and held that generally speaking a judge should always accede to a request to have a witness recalled for cross-examination upon a point of substance which has been overlooked - however incompetently – unless real and incurable prejudice may be occasioned to the opposing party.  Obviously practical considerations may also intrude:  the availability of the witness and the ease with which he or she may be located so as to be recalled will be relevant matters.
319	Where in a criminal trial a judge has refused to require a witness to be recalled for further cross-examination, or to allow further cross-examination after completion of the re-examination, the first question on appeal is whether the exercise of the discretion of the trial Judge in that respect has miscarried.  The principles governing appellate review of a discretionary decision are applicable.  The discretion may be found to have miscarried if the judge acts on a wrong principle or if extraneous factors have influenced the decision.
10.2 	Senior Constable Lawrence
320	The prosecution case was that the appellant had used one or other of the two Glock pistols which he possessed to shoot Dr Tobin.  The evidence of Snr Const Lawrence was an important part of the prosecution evidence concerning the possible use of the appellant’s Glock pistols.  His investigations did not confirm that either of the appellant’s pistols had been used, but nor, in his opinion, did they enable the use of those pistols to be excluded.  The Crown case in the alternative was that the appellant had used a third Glock pistol, not able to be located, to shoot Dr Tobin.
321	Snr Const Lawrence examined the projectiles retrieved from the body of Dr Tobin, the cartridges found at the scene of the shooting and the two Glock pistols found in the possession of the appellant during the execution of the search warrant on 29 October 2002.  His evidence that Dr Tobin was killed by projectiles fired from a 9mm Glock pistol was not really in dispute.  Nor was it disputed that the appellant was, at the time of Dr Tobin’s death, the owner, and in possession, of two 9mm Glock pistols.
322	Snr Const Lawrence gave evidence that marks or striations can be seen on microscopic examination of the projectiles fired from many firearms.  Those marks or striations may be of two types.  The first are class characteristics, being characteristics found on all projectiles fired from a firearm of a particular make and model.  The second are individual characteristics produced by each firearm.  Many of the individual characteristics are caused by microscopic imperfections on the inner surface of the barrel of the firearm resulting from imperfections in the manufacturing process.  Microscopic imperfections can also evolve over time as a result of corrosion or as a result of the presence of debris or contaminants.  Such contaminants might comprise dust or the residue from a previous firing of a firearm.  Snr Const Lawrence said that the marks or striations were, in effect, a mechanical fingerprint enabling it to be determined in many (but not all) cases whether a given projectile had been fired from a particular firearm.
323	A large part of the appellant’s cross-examination of Snr Const Lawrence (which extended for approximately one and a half days) was a challenge to his opinion that the appellant’s pistols could not be excluded as having been used to shoot Dr Tobin.  The appellant drew attention to differences between the markings found on the projectiles found in Dr Tobin’s body and those on projectiles retrieved from Snr Const Lawrence’s test firing of his pistols.  It was put to Snr Const Lawrence that the differences in the markings were differences in individual characteristics which enabled it to be concluded that the appellant’s pistols had not been used to fire the fatal shots.  Snr Const Lawrence agreed that the difference in markings would not have been produced by the recreational use of the pistols (50 rounds of ammunition) by the appellant between the time of Dr Tobin’s death (14 October 2002) and 29 October 2002, when the pistols were seized.  However, Snr Const Lawrence said that the differences were consistent with the “shot to shot” variations which are to be expected in normal circumstances.  He said that while residue from contaminants may, over a period of time, produce changes in the barrel of a gun which would produce individual characteristics on projectiles, there was also always some difference between projectiles known to have been fired from the same firearm.  The residues and contaminants left from a previous shot were capable, he said, of causing different markings on a subsequent shot.  Snr Const Lawrence was cross-examined in some detail about the contaminants which might cause marks on one projectile but different (or no) marks on the next projectile fired from the same firearm.  Snr Const Lawrence referred to the residue from the propellant compounds, the primer compounds, “frictionators”, and to dust or dirt.  A frictionator is a substance incorporated in the priming compound within the cartridge which is designed to create friction with the primer.  When struck by the firing pin, the frictionator causes the explosive compounds within the primer to detonate.  Snr Const Lawrence said that finely powdered glass is commonly used as a frictionator.  Glass residues, being hard, were capable of producing markings on projectiles.  He did not know what type of frictionator was in fact used in the ammunition found in the appellant’s possession.  The appellant elicited from Snr Const Lawrence evidence that each of the other residues which he had nominated would be likely to be relatively soft and unlikely to cause markings on the bronze jacket of a projectile.  However, Snr Const Lawrence maintained that “shot to shot” variations could not be excluded as an explanation for the difference between the markings on the projectiles retrieved from Dr Tobin’s body and those retrieved on the test firing.
324	In re-examination, Mr Brebner QC elicited evidence that the individual characteristics left on a projectile by a firearm can also be altered by physical alteration of the inside surface of the barrel.  The application of an abrasive valve grinding paste or of a polishing compound to a projectile before it was fired was given as an example.  Snr Const Lawrence said that when that was done, the individual characteristics of a firearm could be altered and further, that any projectile fired on subsequent occasions would be likely to have different markings.
325	In his cross-examination, Snr Const Lawrence had also said that, in his experience, about 50 per cent of firearms produced a reproducible mechanical fingerprint (reproducible in the sense that subsequent firing will produce the same marks on the projectile).  He maintained that evidence after being presented with a statement from a US author that, in the experience of that author, approximately 80 per cent of firearms produced a reproducible mechanical fingerprint.
326	In re-examination, Snr Const Lawrence was asked to give reasons for the difference between his estimate and that of the US author.  Snr Const Lawrence said that he understood the US author to be saying that, in his experience and after considering both individual and class characteristics, about 80 per cent of projectiles can be identified as having been fired from a specific firearm.  He gave some reasons which may have explained the difference between his experience and that of the US author.
327	Following the completion of the re-examination, the appellant sought leave to cross-examine Snr Const Lawrence further.  He contended that the evidence about physical alteration of the inner surface of the barrel by use of a substance such as a grinding paste was a new topic, that is, raised for the first time altogether in the course of the re-examination.  The Judge refused to grant that leave.  It is true that the effect of use of a grinding paste or a polishing compound in the barrel of a firearm was raised for the first time in re-examination.  However, the possibility of physical alteration of the inner surface of a barrel had been raised during the cross-examination.  Snr Const Lawrence told the appellant that he would not expect that the firing of 50 rounds of ammunition from the appellant’s Glocks in the period between Dr Tobin’s death and the time when the Glocks were seized by the police would have produced any significant change in the individual characteristics left on the projectiles fired from those Glocks “unless, of course, there is something drastic that happens to the barrel, such as a large amount of fouling or some other such change”.  He was not asked in the cross-examination to elaborate on that answer.  That was the subject matter which was explored in the re-examination and which elicited the evidence about the effect of the use of a grinding paste.
328	In addition, Snr Const Lawrence had earlier answered a question from the jury, “could scrapings of material from the barrels be checked for carborundum?”  Snr Const Lawrence said that he had physically inspected the inner barrels and had noticed the existence of certain particles which he considered to be particles of propellant.  They were different from carborundum residue.  He also said that he noted nothing unusual about the inside appearance of the barrels.
329	Although the Judge gave no reason for refusing leave to the appellant to cross-examine further on the topic of use of a grinding paste, and although many judges may, in the circumstances, have permitted further cross-examination on that topic, we do not consider that it can be said that the exercise of the discretion has in any way miscarried.  The re-examination on the topic was appropriate, as the possibility of alteration of the inner surface of a barrel resulting from causes other than normal use had emerged in the cross-examination.  It was also related to the question asked by the jury itself.  Furthermore, Snr Const Lawrence did not suggest that grinding paste had in fact been used in either of the appellant’s two pistols.  If that had been the case, the position may have been different.  Snr Const Lawrence had referred to the use of grinding paste by way of example only.  It was not suggested at any time during the trial that the appellant had in fact made use of such a paste.
330	The applicant also sought leave to cross-examine Snr Const Lawrence further contending that in the re-examination he had misquoted or misinterpreted the work of the US author on the topic of reproducible mechanical fingerprints.  The Judge refused that leave.
331	In our opinion, no error in the exercise of the Judge’s discretion in that respect has been shown.  The appellant contended that Snr Const Lawrence had attributed to the US author a statement that 80 per cent of projectiles are identifiable to a specific firearm whereas, in the appellant’s submission, what the US author had said was that 80 per cent of firearms will leave a reproducible mechanical fingerprint on projectiles.  Her Honour reminded the appellant that the statement of the US author was not in evidence in the trial as proof of the fact for which the appellant contended.  We note, in addition, that the appellant had had Snr Const Lawrence read, during the course of the cross-examination, an extract from the publication of the US author which included the passage “it’s been my experience that around 80 per cent of firearms that I examine, and produce is sometimes called a mechanical fingerprint on the bullets and cartridge cases that pass through them”.  Thus, the jury had heard a verbatim statement of the experience of the US author.  Further cross-examination was not necessary to clarify the matter.
332	Snr Const Lawrence was then released from further attendance at the Court.  Four days later, after another witness had given evidence that the frictionator in the ammunition found in the appellant’s possession was not glass but aluminium the appellant applied to have Snr Const Lawrence recalled for further cross-examination.  He said that he wished to confront Snr Const Lawrence with the evidence that the frictionator did not comprise glass.  He hoped that in that circumstance that Snr Const Lawrence would withdraw the suggestion that the difference in the markings on the projectiles found in Dr Tobin’s body and those retrieved on a test firing could be explained as “shot to shot” variations.  In this way he sought to elicit evidence that there were differences in the individual characteristics of the respective projectiles from which, in turn, it could be concluded that neither of his Glock pistols had been used to shoot Dr Tobin.
333	The Judge refused the application to have Snr Const Lawrence recalled.  Her Honour referred to the concession by Snr Const Lawrence that the firing of approximately 50 rounds of ammunition from the appellant’s pistols in the period from 14 October 2002 to 29 October 2002 would be unlikely to have produced any significant change in the individual characteristics on projectiles fired from those firearms.  The absence of glass in frictionators could, her Honour said, only serve to strengthen that conclusion.  The appellant submitted that the trial Judge had overlooked the way in which Snr Const Lawrence had said that glass in the frictionators could produce “shot to shot” variations.  We consider that there is some substance in that complaint but we are not satisfied that the exercise of discretion by the trial Judge miscarried.  It was not necessary for Snr Const Lawrence to be recalled to be confronted with the evidence about the frictionator.  If the facts upon which the opinion of Snr Const Lawrence was based were not proved, then his opinion in that respect ceased to be of value.  Snr Const Lawrence had agreed that the other residues from the propellant compounds and the primer compounds would not be sufficiently hard to cause a marking on the projectile.  No other contaminant, apart from glass, was identified as being likely to be of sufficient hardness.  The exclusion of glass as a contaminant had the effect therefore of undermining the utility of the opinion of Snr Const Lawrence in this respect.
334	In addition, there were practical considerations about the recall of Snr Const Lawrence.  Following his release from evidence, he had embarked upon an interstate motoring holiday.  The Judge was informed that there were difficulties in making contact with him.  However, her Honour did not rely on this factor in refusing leave to have him recalled.
335	On appeal, the appellant also said that he had wished to examine Snr Const Lawrence further in relation to the accuracy of the Lasermax sights on his Glock pistol.  However the appellant had not made any application to the trial Judge for leave to cross-examine further on that topic.  This submission cannot therefore be sustained.  In any event, the appellant had cross-examined extensively about the effect of use of Lasermax sights.
336	Before leaving the subject of the evidence of Snr Const Lawrence, we mention a further matter.
337	Shortly before the hearing of the appeal, the DPP sought leave to adduce evidence from Snr Const Lawrence at the hearing of the appeal.  An affidavit from Snr Const Lawrence accompanied the application.  It was said that his evidence would be relevant to the Court’s consideration of the proviso, in the event that the Court considered that the trial Judge had erred in not directing that Snr Const Lawrence be recalled.  The affidavit of Snr Const Lawrence shows that the DPP wished to enlarge on the evidence of “shot to shot” variation given by Snr Const Lawrence at the trial, and to elicit evidence from him that even in the absence of the presence of glass in the frictionator, he would maintain his evidence that the markings could be attributed to “shot to shot” variation.  No explanation was provided as to why this evidence was not led at trial, nor why there was no mention of shot to shot variation in the evidence-in-chief of Snr Const Lawrence.  Furthermore, counsel for the DPP had opposed the appellant being given leave to cross-examine Snr Const Lawrence further following the re-examination.  In all these circumstances, we would, had we found error by the trial Judge, have treated the present application to lead further evidence from Snr Const Lawrence with some circumspection.  However, as we are not satisfied that the discretion of the judge has miscarried, it is not necessary to consider the matter further.  The application is unnecessary and is therefore refused.
10.3	Robert Champion
338	Mr Champion was working at the Brisbane Convention Centre on 27 April 2002.  He gave evidence of seeing a man behaving suspiciously in the vicinity of the Convention Centre on that day.  Other prosecution evidence suggested that that man was the appellant.  Mr Champion’s evidence was given on 27 July 2004.  On 23 August 2004, the appellant applied to have Mr Champion recalled for further cross-examination.  That application was refused.
339	In his evidence-in-chief, Mr Champion said that whilst outside the Brisbane Convention Centre on 27 April 2002, he heard “a loud hollow metallic sound which sounded to me like a gun being dropped on the concrete”.  When he heard this he saw the man bend, stand back up and, apparently, tuck something into the back of his trousers.  Mr Champion said that he was familiar with the noise made by a gun dropping on concrete by virtue of his business, an aspect of which was the provision of audiovisual and staging services.  His company had a sound effects library which, he said, included the sound of a gun dropping onto concrete.  He had also worked on movie sets in which guns had been dropped.  Finally, he said that he had been brought up on farm at which firearms were used and that he had heard the sound of falling guns in that context as well.  Mr Champion was cross-examined about the nature of the sounds recorded in the sound effects library.
340	As noted, approximately four weeks after the completion of Mr Champion’s evidence, the appellant applied to have him recalled for further cross-examination.  He said that he wished to cross-examine Mr Champion about what he (the appellant) described as a previous inconsistent statement.  In his pre-trial deposition, Mr Champion had said that his familiarity with the sound of a gun dropping on concrete derived from his work in movies.  He had not referred to his sound effects library nor to his farm experience.  The appellant told the trial Judge that this was a matter on which he had simply overlooked cross-examining.
341	In addition, the appellant said that he wished to cross-examine Mr Champion further about the sounds recorded in the sound effects library, in particular, as to whether they were recordings of real or simulated sounds.
342	The Judge refused the application.  Her Honour noted that there had been cross-examination of Mr Champion as to the basis for his opinion.  It is apparent from the Judge’s comments that she was concerned whether Mr Champion was truly in a position to distinguish between the sound of a gun dropping on concrete and any other metal object dropping on concrete.  This concern was reflected in a direction given to the jury during the course of the Judge’s summing-up:
On any view you should be cautious about drawing any conclusions from Mr Champion’s account.  Mr Champion told you that he had access to sound effects in his studio library, which I took to be real sound effects.  But any way, and I mean no disrespect to Mr Champion or the quality of his evidence, it would surely be difficult to identify from such a sound the object which he heard hitting the concrete flooring of the terrace.  On the other hand plainly the man had something and was carrying something on his person.
343	In our opinion, it has not been shown that the Judge was in error in refusing to have Mr Champion recalled.  The Judge saw and heard Mr Champion’s evidence.  She was in a position to make an assessment of its effect on the jury.  The sound of a gun dropping on concrete is, at least in Australia, such a rarely heard sound that Mr Champion’s evidence, even without the further cross-examination contemplated by the appellant, had to be treated with considerable caution.  The jury could reasonably have been expected to hold that view of his evidence.  In that circumstance, the Judge was entitled to take the view that the expense involved in bringing Mr Champion back from Brisbane to Adelaide and the inconvenience to him was not warranted in the interests of justice.
10.4	Conclusion on Ground 18
344	In summary, our opinion is that the appellant has not established any error in the refusal by the Judge to order that Snr Const Lawrence and Mr Champion be cross-examined further, and that each be recalled for that purpose.  No miscarriage of justice was occasioned by that refusal.  The appellant has not lost a chance of acquittal reasonably open to him.
11.	Ground 25 – The direction as to motive
11.1	The complaint
345	In this ground, the appellant contended that the trial Judge had erred by failing to direct the jury that before guilt could be inferred from motive, it had to be satisfied that the motive asserted by the Crown had been proved beyond all reasonable doubt.
346	In support of this ground, the appellant relied on a passage in Penney v The Queen in the judgment of Callinan J:
The appellant submitted that [the direction of the trial judge] confused intention with motive:  if motive is to be relied on then it must be proved beyond all reasonable doubt.  The appellant argued that the trial judge, having referred to what was, in essence, motive, should have given a direction to that effect.
Taken in isolation the passage could have a tendency to confuse motive with intention.  The appellant in this connection relied upon a passage from the unanimous judgment of a New South Wales Court of Appeal of five judges (Street CJ, Hope, Glass, Samuels and Priestley JJA) in R v Murphy (1985) 4 NSWLR 42 in which that Court accurately summarised the relevant principle stated in Chamberlain v The Queen (No 2) which applies if motive is to be used as a factual basis for an inference of guilt:
“In our opinion it is incorrect to direct a jury that the accused’s motive is a ‘subsidiary fact’ or a non-essential element in the case which does not require proof beyond reasonable doubt but may be proved to the jury’s satisfaction or on the balance of probabilities.  Motive is not merely a matter which may explain the accused’s conduct.  It is rather a fact directed to proof of the accused’s guilt; as Chamberlain makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt.” [Emphasis added]
347	It was submitted that the trial Judge should have given a direction to the jury along the lines emphasised in the passage quoted.
11.2	The direction on motive
348	The Judge directed the jury that motive was part of the prosecution case.  Her summary of the prosecution case referred to evidence concerning the “deregistration sequence” and the medical evidence relating to that sequence.  The Judge then said:
The prosecution put evidence of the sequence of events before you as having given rise to a motive against the people whom Dr Gassy saw as principally responsible for his demise as a psychiatrist.  Of course, it is for you to say whether the deregistration sequence does provide a motive.
Later, having referred to the evidence adduced by the Crown to the effect that the appellant had in 1994 suffered a delusional disorder, the Judge said:
What Dr Woodford said to you, and Mr Brebner has referred to, is that persons suffering from a delusional disorder are often resentful and angry against those who they delusionally believe have hurt them.
Well, we can all become resentful and angry.  The relevance of this evidence is that it might explain how the dishonest dealings behind the scenes which the accused allegedly attributed to Dr Tobin, could cause such strong feelings as to give rise to a wish to kill her, and engender the resentment and malice necessary to carry it out.
349	Earlier, the trial Judge had instructed the jury in the conventional way on the circumstantial nature of the prosecution case.  The jury was directed that the charge could not be found proved beyond reasonable doubt if there was some reasonable explanation of the evidence consistent with innocence.  The jury was told that it was open to them, if they thought it appropriate, to consider the various aspects of the prosecution case in combination so as to reach a conclusion which none of those aspects (strands) considered by itself would warrant.  However, the jury was not told that if they were to use motive as one of the strands, they had to be satisfied that the motive for which the Crown contended had been proved beyond all reasonable doubt.  If such a direction was required, it is plain that it was not given.
11.3	Whether the direction was defective
350	In our opinion, the trial Judge was not required to give a direction as to motive in the manner for which the appellant contended.  Neither Penney nor any other authority required such a direction.
351	In Chamberlain v The Queen (No 2), the High Court held that in a circumstantial case, a jury could draw inferences only from facts which were themselves proved beyond all reasonable doubt.  The principle was stated by Gibbs CJ and Mason J as follows:
Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt.  When the evidence is circumstantial, the jury, whether in a civil or a criminal case, [is] required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.
352	However, that position was clarified by the later decision in Shepherd v The Queen (No 5).  Dawson J, with whom Mason CJ and Toohey and Gaudron JJ agreed, held that it was only those facts which were indispensable intermediate steps in the reasoning process towards an inference of guilt about which the jury had to be satisfied beyond reasonable doubt.  Dawson J also said that if it was possible in an individual case to identify a fact, proof of which was indispensable to proof of the guilt of the accused, then the jury should be directed that it had to be satisfied beyond all reasonable doubt of the existence of that fact.  However, in those cases where the evidence against an accused comprised (using Wigmore’s metaphor) strands in a cable rather than links in a chain such a direction was not necessary.  
353	Since Shepherd, it has been accepted that in a circumstantial case, a fact which is not an element of the offence charged or of a defence to be negated need not be established beyond reasonable doubt unless in a strictly logical sense it is regarded as an indispensable link in a chain of sequential reasoning heading to a finding of guilt.
354	The passage from the judgment of Callinan J in Penney upon which the appellant relies cannot be regarded simply as a recitation of the submission of the appellant in that case.  The use of the present tense in the word “applies” indicates that Callinan J was not simply referring to the law which had previously applied.  On the other hand, it is not readily to be supposed that Callinan J was intending to re-establish, in respect of motive, the law established by Chamberlain.  The judgment in Penney made no reference at all to Shepherd.  The Court of Appeal decision in Murphy was decided before Shepherd and has been regarded in NSW as based on an erroneous interpretation of Chamberlain.
355	It may be that Callinan J was intending to refer only to those cases in which motive is an indispensable intermediate step in proof of the Crown case, but such cases are likely to be rare.  Motive (unlike intention) is seldom an indispensable element of an offence.
356	The effect of the judgment in Penney in respect of motive in a circumstantial case has been considered in a number of decisions in New South Wales and Victoria.  In R v Pantoja BM James J (with whom Wood CJ at CL agreed), noted that the passage in the judgment in Penney on which the appellant relies was obiter.  His Honour held that the passage should not be understood as modifying the law with respect to circumstantial evidence as stated in Shepherd, and that, in the circumstances of that case, establishing that the accused had a sexual passion for the deceased’s sister which may have provided a motive for the murder of the deceased was not an indispensable intermediate step in the proof of his guilt.  Adams J, in a separate judgment, expressed a similar view saying:
It seems to me that, especially having regard to the explanation of Chamberlain v The Queen (No 2) expressed in Shepherd v The Queen, no direction along the lines submitted by counsel for the appellant was called for in this case.  There may be cases depending upon circumstantial evidence in which proof of motive is an indispensable link in the chain of proof of the guilt of the accused and thus will need to be established beyond reasonable doubt.  However, such cases must be rare.  This case was certainly not one of them.
357	An application for special leave to appeal to the High Court on grounds which included the direction of the trial Judge concerning motive was refused, with the High Court saying:
The second point concerned proof of motive.  There is insufficient reason to doubt the correctness of the approach taken by the Court of Criminal Appeal in relation to that matter to warrant the grant of special leave.
358	In R v Plevac Grove J, with whose judgment James and Dowd JJ agreed, referred to the passage in the judgment of Adams J in Pantoja quoted above and to the Victorian case of R v Kotzmann to which reference will be made shortly, and held that as the jury in that case was not being invited to infer guilt from motive alone, a direction that motive must be established beyond all reasonable doubt was not required.  A similar view has also been taken in two other decisions of the New South Wales Court of Criminal Appeal.
359	In Victoria, in R v Kotzmann two members of the Court of Appeal held that the absence of any reference to Shepherd in the judgment of Callinan J in Penney meant that the latter case should not be understood as having altered the position with respect to proof of the facts from which inferences were to be drawn as stated in Shepherd.  In a separate judgment, Callaway JA considered that Penney had to be regarded as an endorsement of the statement with respect to proof of motive in Murphy.  This meant, in his view, that there were some facts which, even though not indispensable intermediate facts in the process of reasoning to guilt, had to be established beyond all reasonable doubt.  Reference was made to passages in the judgments in Gipp v The Queen suggesting that where evidence of propensity is relied upon as part of the proof of guilt, the basis for the inference should be proved beyond reasonable doubt.  However, in a postscript to his judgment, Callaway JA indicated that where evidence of motive is simply one of the accumulation of circumstances relied on (strands in a cable) and not an indispensable link, it was not necessary for the jury to be instructed that they needed to be satisfied of its existence beyond all reasonable doubt.
360	In subsequent decisions, the Court of Appeal in Victoria has continued to hold that Penney should not be regarded as having changed the law as clarified in Shepherd insofar as it concerns proof of motive.
361	The question did not arise for consideration in De Gruchy v The Queen in which the question of directions to be given where there was no evidence of motive was considered.  It is to be noted, however, that in his statement of general propositions concerning the instructions to be given to a jury concerning motive, Kirby J did not suggest that the jury should be told that if motive was relied upon, they had to be satisfied that the facts indicating the presence of motive had to be proved beyond all reasonable doubt.
362	In the present case, the existence of motive was not an indispensable intermediate step in the finding of guilt.  Its significance lay in the explanation it provided as to why the appellant, a resident of Sydney, had, on the Crown case, travelled to Adelaide, shot Dr Tobin and then returned almost immediately to Sydney.  It was one of a number of circumstances which, when considered together, could be used to infer guilt.
363	Finally, we mention that on the hearing of the appeal the appellant sought to argue that the directions of the trial Judge with respect to the matters relied upon by the Crown to establish motive were deficient in other respects.  It is not necessary to consider those submissions.  They were directed to complaints of the appellant in respect of which he had not been granted leave to appeal.
364	In short, in our opinion, this ground of appeal is not made out.
12.	Ground 28 – Unsafe and unsatisfactory verdict
365	This ground of appeal asserts that the cumulative effect of the trial Judge’s errors was such as to render the verdict of the jury unsafe and unsatisfactory.
366	It has been shown in relation to ground 1 that the search warrant relied on for the purposes of searching the appellant’s home on 29 October 2002 when first issued was a nullity because it referred to a non-existent address.  If a new warrant was issued on 29 October it was incorrectly dated.  We have held that that is not a defect rendering the warrant invalid.  However, we have also held that even if no valid warrant was issued, the action taken in reliance on its authority did not affect the admissibility into evidence of the items seized.  The evidence was properly admitted.  We have also found that the evidence of Ms Durrington was properly admitted (ground 9).  These grounds cannot be said to have contributed to an unsafe or unsatisfactory verdict.
367	Most of the other grounds involve complaints about the trial Judge’s actual directions or inadequacy of directions to the jury.  In respect of only one (ground 13) have we considered that the direction lacked relevance.  That was concerning a relatively minor matter.  All other directions were properly given or, where the complaint was of failure to give a direction, were not necessary.
368	In relation to ground 2 we have found that the appellant was wrongly denied legal representation during part of the proceedings dealing with preliminary matters before the empanelment of the jury.  In the rather unusual circumstances of this case we have found that that did not in itself give rise to a miscarriage of justice.  The only other ground related to the exercise of the Judge’s discretion not to allow further cross-examination of two witnesses (ground 18).  The error the subject of ground 2 and the failure to exercise the discretion in favour of the appellant, taken together, do not give rise to any reasonable possibility of an unsafe or unsatisfactory verdict.  The prosecution case, although circumstantial, was a strong one.  This ground is not made out.
13.	Conclusion
369	For the reasons we have given, none of the grounds of appeal are made out.  We would dismiss the appeal.