SUPREME COURT OF QUEENSLAND

[1]  MUIR JA:

Introduction On 12 October 2009, after a trial in the Supreme Court, the appellant was convicted of the murder of his wife.  It was alleged by the prosecution that the appellant had procured one Michael Kinsella to kill the deceased in consideration of a promise by the appellant to pay Kinsella $10,000.

[2]  The appellant appealed against his conviction.  Before identifying and considering the grounds of appeal, it is useful to identify the substance of the evidence before the jury.

The evidence

[3]  The appellant married the deceased in 1995.  There were two sons of the marriage.  In November 2001, the deceased left the matrimonial home and formed a relationship with a Mr Morrison.  The appellant and the deceased became engaged in a dispute over the division of their property and also over the custody of their children.  On 13 December 2001, the appellant entered the deceased's home late in the evening, attacked her physically and threatened her.

[4]  On Christmas Day 2001, the appellant went to a camping ground where the deceased and Mr Morrison were staying and violently assaulted Mr Morrison.  The appellant was charged with attempted murder.  He was released on bail on 26 April 2002 on conditions including that he remain out of Queensland except to attend court appearances and he was prohibited from contacting the deceased and Mr Morrison.  The conditions also required the appellant to report each Tuesday and Friday to Victorian police.

[5]  On 10 November 2002, Kinsella, who had known the appellant for a couple of years prior to November 2002, was in the company of Angela Willett when he received a voice message on his mobile telephone.  He played it to Ms Willett who gave evidence that she recognised the voice as the appellant's.  The message was to the effect that Kinsella should have his phone turned on at a certain time.  The appellant telephoned Kinsella again that day telling him not to let Ms Willett know about the call.  At the time of these conversations Kinsella had not heard from the appellant for over a year.  In the second conversation the appellant told Kinsella that he needed to come up and get some money, that he was having a court case and was going to lose the house if he did not have money to fight it.

[6]  In a later telephone call it was arranged that Kinsella would pick up the appellant from a service station "just across the border at Goondiwindi".

[7]  On the morning of 16 November 2002, Kinsella met the appellant at a petrol station on the New South Wales side of the border near Goondiwindi.  The appellant attached the keys to his car to the rear of the number plate by a piece of wire.  He told Kinsella that if he did not "make it back there" Kinsella could have the car.  When the vehicle was seized by Victorian police from the appellant's parents' house on 10 December 2002 a Victorian police officer saw the wire on the number plate.

[8]  As the appellant and Kinsella drove to Hervey Bay where the deceased resided, the appellant spoke of how the deceased had left him for a man who had attended a party held at Kinsella's place.  The appellant said that the deceased had filed for divorce and would get the house and that he needed to dig up some money buried in the yard.  The appellant blamed the deceased for the death of their son, Troy.  Following the appellant's directions, Kinsella stopped his vehicle some distance from the deceased's house and the appellant alighted.  Kinsella, at the appellant's request, then drove by the house to see if the deceased was at home.  Kinsella reported back to the appellant that he could not see any cars.

[9]  The appellant then directed Kinsella to the deceased's workplace and they drove past looking for the deceased's car.  Not finding it, the appellant directed Kinsella to the deceased's mother's place where they also failed to locate the deceased's car.  Whilst this was happening, the appellant was wearing dark glasses and a sombrero and keeping himself low in his seat.

[10]  They stopped at a telephone box and the appellant made three or so calls.  The appellant told Kinsella that his mate in Brisbane was going around to another person's place to check if the deceased's car was there and was going to ring back.  After the third phone call, the appellant returned to the car and asked Kinsella if he wanted to go on a trip to Brisbane with him.

[11]  At least one of the calls made by the appellant on 16 November was to a Mr Kalisperis.  He said that the appellant telephoned him and asked him to go Mr Morrison's house to see if the deceased's car was there.  Mr Kalisperis did as requested.  He rang the appellant back and described to him the vehicle he saw at the house.  The appellant identified the car as the deceased's.  On the trip to Brisbane, the appellant said that he wanted to go down there and kill his wife and her boyfriend.  Kinsella responded, "Can't you just go and get the money out of your house first if she's not there, just go and get it".  The appellant replied, "No, I need her to be there".  The appellant asked Kinsella if he still had a .22 rifle and said, "We could shoot her".  This conversation occurred near the telephone box.  They drove to the Chermside Shopping Centre in Brisbane.  The appellant left the car, saying he was going to try and buy a baseball bat and that he was going to "smash their heads in".  The appellant was unable to purchase a bat and returned to the car.

[12]  The appellant then directed Kinsella to Mr Morrison's house.  They stopped the car in a road near the cul-de-sac in which Mr Morrison's house was located.  At this time "it wasn't properly dark".  Nevertheless, the appellant walked down the road, returned and said the deceased's car was there.  They went to a service station, purchased food and ate it.  At about this time, Kinsella volunteered to the appellant that he had a pipe in the boot of his car which he used for knocking pins out of machinery.  The appellant opened the boot and looked at it.  In the course of the afternoon, the appellant continued to complain about the deceased.  He was angry and blamed the deceased for the death of their son, Troy.  After completing their meal, they went to a nearby school where the appellant took from his duffle bag plastic green trousers, plastic green overalls, "hood type thing", latex gloves and workboots.  The appellant said "He was going in to kill her".

[13]  Kinsella drove the appellant to near Mr Morrison's house, where he alighted.  Kinsella drove back to near the school and waited.  The appellant returned "puffing and said when he went up the stairs an outside light come on and he took off . . . he was sort of whingeing about her.  They were dancing and his son was dead.  His wife was having fun and she . . . didn't deserve it … [the deceased] and the boyfriend were dancing upstairs, listening to music".

[14]  The appellant then spoke of following the deceased "… back home and pushing her off the road with his car".  He also proposed putting speed down her throat so that, "People would think she just overdosed".  In the course of these conversations the appellant offered Kinsella $10,000 to kill the deceased.  He said he would not be able to give it to him straight away and he could not come back up to Hervey Bay because the police would be watching him.  The appellant suggested that Kinsella kill the deceased with a gun. 

[15]  Kinsella then drove back to where the appellant's car was parked where the appellant asked Kinsella if he could also kill the boyfriend for another $10,000.  He said he wanted his wife killed first.  The appellant wrote on a card the telephone number of a person whom he identified as a mate who would help Kinsella find the boyfriend and gave it to Kinsella.

[16]  Mr Morrison said in his evidence that the deceased stayed at his house, which was in a cul-de-sac near a high school, on 15 November 2002.  She arrived in a vehicle of the type Mr Kalisperis had described to the appellant.  In the evening of 16 November Mr Morrison played on his electric guitar while the deceased and a young friend of hers danced in the lounge room.  He heard a loud bang outside the house and, looking out, noticed that the sensor light which was situated at the top of the stairs was on.

[17]  On either the Sunday or the Monday following the appellant's visit to Queensland, the appellant rang Kinsella and asked him if he could do it for him on the Tuesday.  The appellant told Kinsella that he would also give him a boat.  Kinsella went to see his brother and drove over to see a girl who owed him some money.  She was not there so he drove to the deceased's home in Hervey Bay.  The deceased invited him in; they had a cup of coffee, conversed and looked at photo albums.  Kinsella had put the knife purchased by him in Kingaroy that day, which he intended to use for skinning kangaroos, in his trouser's pocket before going into the house.  As he walked to the door as if to leave, he put his hat on, felt the knife, pulled it out and stabbed the deceased in the back.  She fell to the floor and he "finished up killing her".  He said he did it for the $10,000 that the appellant had offered to pay him to kill his wife.

[18]  Telephone records established that Kinsella was called from various public telephones situated in the vicinity of the appellant's parents' house in Melbourne between 2November and 9.01 pm on 18 November 2002.  Nine such calls were made to Kinsella on 18 November 2002 between 7.39 pm and 9.01 pm.  At 9.18pm that day, the appellant rang a Mr Gillespie, who was in Hervey Bay, from the telephone in his parents' house in Melbourne and asked him for a loan of $1,000 for a court case.  The appellant told police about this telephone call when interviewed by them on 20 November 2008.

[19]  On 10 December 2002, the appellant, when asked by a detective if he had ever heard of Kinsella, replied, "No".  In a statement provided by the appellant to Victorian police on 20 November 2002 he stated that the last time he had been in Queensland was when he had to go to court about a custody hearing for his younger son.  That hearing was in August 2002.  He admitted at the trial, pursuant to s 644 of the Criminal Code, that on 16 November 2002 he accompanied Kinsella to the vicinity of the deceased's house, to the Chermside Shopping Centre and to the vicinity of Mr Morrison's house at Salisbury, Brisbane.

[20]  The lies which are apparent from the telephone records, statements and admissions were relied on by the prosecution as lies told out of a consciousness of guilt.

[21]  Troy Lester was killed in a motor cycle accident in April 2002.  At the time, the appellant was in custody.  Before Troy died, the appellant had been taken to the hospital where Troy was on life support.  The parents decided that life support should be withdrawn.  A prison guard heard the appellant say to the deceased at the hospital, "… you've killed our son".  At Troy's funeral the appellant told Mr Birchall-Hunt that it was all the deceased's fault, that she should have been there for him (Troy).

[22]  Mr Bartlett gave evidence of having worked for the appellant.  In 2002, he became aware that the appellant was in custody and he wrote to him.  In a letter to Bartlett the appellant asked Mr Bartlett "to keep an eye on the slut . . . so she would not leave Hervey Bay".  In another letter the appellant wrote, "She'll get what she deserves.  If I get time I'll have to get someone to do it for me".  The appellant mentioned in his letters that he "was very angry over Troy's death . . . and they were splitting up".  In one letter he wrote, "[the deceased] tried so hard to keep me in Jail even for the funeral of Troy's (sic) that's why the condition's (sic) of bail was to live in Victoria".

[23]  Mr Challender had known the appellant for about 30 years and regarded the deceased and the appellant as his friends.  In March 2002 the appellant telephoned him from prison.  The appellant had told Mr Challender that he would have to go to court, the children were going to stay with him, and he would have to see if he could move back into his house.  The appellant said the deceased was trying to get a settlement but he was not signing the house over.  He mentioned that, "The guy from Brisbane" was still seeing the respondent and that he had been, "Just playing around with 'er when we were still together."  He said that the deceased had set him up twice, once for domestic violence and at the second time she had gone up to Woodgate "that day for Christmas" knowing that he was going to be there.  In another telephone conversation, he asked Mr Challender to talk to her and ask her if she still loved him.  He asked also if Mr Challender could tell her that he loved her more than anything in the world.  In a further telephone conversation Mr Challender told the appellant that every time he had been to the house no-one had been home.  The appellant urged Mr Challender to remind her of "the past we had, and the kids and everythin' . . . Give her a real good [ear] bashin', mate, she needs it".

[24]  After the appellant's release on bail, he telephoned Mr Challender on three or four occasions and asked him to go round and speak to the deceased to let her know how he felt.  Between two and four weeks after the deceased was killed Mr Challender asked the appellant if he "did it".  The appellant replied, "Just mind your own fucking business.  Keep out of it.  It's nothing to do with you".

[25]  An employee of Mr Toy's Toyworld in the Chermside Shopping Centre said that she recalled police visiting her and enquiring about baseball bats in December 2002 and at the time, remembering that about two months earlier a man had asked her if her store sold adult size baseball bats.  She said that the store did not sell them.

[26]  When police detained Kinsella at his rural property on 22 November 2002, they found a length of galvanised pipe in his boot.  They located in his wallet a card which Kinsella said was the one the appellant had given him at the appellant's car near Goondiwindi.

[27]  The solicitor retained to act for the deceased in relation to her matrimonial disputes with the appellant first received his instructions in January 2002.  A trial date had been fixed for 4 December 2002 but custody of the younger son had been at least partially agreed on 4 November 2002.  He was to live in Melbourne at his paternal aunt's house for nine months.  The solicitor spoke to the deceased at about 4 pm on 19 November about a letter he had received from the appellant's solicitor containing an offer to settle the property dispute on the basis that the appellant would keep the house but make a payment in the order of $52,500 to the deceased.  He was instructed to reject the offer and he advised the appellant's solicitor of the rejection that afternoon.

[28]  It is now convenient to turn to the grounds of appeal. 

Ground – the trial judge erred in admitting evidence of the conversation in which Mr Challender asked the appellant if he "did it". The appellant's counsel's submissions

[29]  Counsel for the appellant argued that the appellant's response to Mr Challender's question could never constitute an admission of guilt in the context of the subject conversation:  the response was intractably neutral and of no evidentiary value.  The response cannot reasonably be understood to import an admission or imply an awareness of guilt.  It is not ambiguous.  It was simply a command to Mr Challender to go away and stop asking questions.

[30]  Even if the response was thought to have some slight probative value, the evidence should have been excluded by the trial judge in the exercise of his discretion on the basis that its potential prejudicial effect far outweighed any probative value that it had.  That is, because it's evidentiary value was slight at best.

[31]  If not excluded on this basis, the response should have been excluded in the exercise of the trial judge's discretion pursuant to s 130 of the Evidence Act 1977 (Qld).

[32]  Alternatively, if the evidence was properly admitted, the tenuous basis for its admissibility required a robust direction from the trial judge directing the jury against drawing any adverse inference against the appellant because of any imprecision of language on his part.  The direction should have recognised that different people use language in different ways and the fact that the conversation was neither recorded electronically nor was the subject of a contemporaneous note, meant that no evidentiary value could be placed on it.

Consideration of the admissibility ground

[33]  The trial judge declined to rule the evidence inadmissible, finding that the subject words were "expressed in circumstances where it's reasonable to expect that the defendant would immediately deny it, so that the absence of such a denial is some evidence of an admission on his part of the truth of the charge or some evidence of conduct by him such as to show consciousness of guilt".  Reference was made to R v Gallagher[1] and R v Salahattin.[2]

[34]  Counsel for the appellant did not contend that the trial judge applied the wrong test but argued that he erred in its application to the facts.  I am unable to accept that submission.  Mr Challender had known the appellant for about 30 years and the two were friends.  Not long before the killing, the appellant had requested Mr Challender to deal with the deceased on the appellant's behalf.  He entrusted Mr Challender with raising matters of a quite personal nature with the deceased.  The words in question need to be considered against this background.  When so considered, the circumstances were such, as the trial judge found, that it was reasonable to expect that the appellant would have denied killing the deceased if he had not done so.  The words themselves are more suggestive of a rebuke or threat than of an expression of indignation.  It was open to the jury to conclude that there was an admission or behaviour inconsistent with evidence.  Consequently, the trial judge did not err in not directing the jury that the conversation was incapable of supporting or giving rise to any implied admission of guilt.

[35]  The next issue is whether the trial judge should nevertheless have exercised a discretion to exclude the evidence.

[36]  Section 130 of the Evidence Act 1977 (Qld) provides:

"Nothing in this Act derogates from the power of the court in a criminal proceeding to exclude evidence if the court is satisfied that it would be unfair to the person charged to admit that evidence."

[37]  Counsel for the appellant also relied on a discretion at common law to exclude the evidence on the grounds that its prejudicial effect exceeded its probative value.[3]  The relevant principle was stated by Gibbs J, with whose reasons Mason and Jacobs JJ agreed, in Driscoll v The Queen[4] as follows:

"Although as a matter of law a document is admissible against an accused person who has adopted it, that does not seem to me to be the end of the matter.  It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused.  The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused:  see, e.g., R v Christie[5]; Noor Mohamed v The King[6]; Harris v Director of Public Prosecutions[7]; and Kuruma v The Queen.[8]"

[38]  In Papakosmas v The Queen[9], McHugh J said:

"Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.  In R v BD[10], Hunt CJ at CL pointed out:

'The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.'  (Footnote omitted.)'"

[39]  In R v Doolan,[11] which was also relied on by the appellant's counsel, a co-accused of the appellant gave police a written statement which "might be said to implicate the appellant".  When the appellant read it he said, "I thought that bastard had more bloody sense than to give you fellows a statement.  He has dubbed us all in".  Townley J held that although the appellant's statement was "strictly admissible", it would be dangerous to accept the words as an admission of the truth of the facts asserted in the written statement.  He held that "the appellant was at least entitled to a direction to the jury that it would be dangerous to convict him".

[40]  Philp J was of the opinion that the appellant's words could not be construed as an admission and that "the jury should have been so informed".  He continued, "Indeed I think that the judge should have advised the prosecutor not to lead the evidence".

[41]  Mansfield CJ considered that the appellant's statement was admissible "but that it was a matter for the exercise of the discretion of the trial judge as to whether he should refuse to admit it".

[42]  It does not appear to me that R v Doolan provides any insight into how the trial judge's discretion should have been exercised in this case:  it is merely an example of the exercise of the discretion to exclude in relation to particular facts.  The same may be said of R v Williams,[12] which was also relied on by counsel for the appellant.

[43]  The primary judge dealt with the evidence of the subject exchange at some length.  He directed the jury as follows:

"The defendant had been granted bail and had gone to live in Victoria, he also received some phone calls from him asking him to go and see or talk to Mrs Lester in the context of having a good talk to her to let her know how Mr Lester felt.  Later, between two and four weeks after her death, Mr Challender spoke to the defendant about that event.  He asked Mr Lester if he did it.  The defendant told Mr Challender to mind his own business.  Let me read the transcript of it to you.  Mr Boyle asked the witness this:

'Can you tell us about that conversation?-- I asked him was he involved in it.

As best as you can remember the words that you used?--  I asked him did he do it.

And what was his response?--  'Mind your fucking business.'

Did he say anything else?--  No.

Can you recall anything else about that conversation?--  Oh, there could have been a threat among it, that's about all.

Well, can you just as best you can remember what words did he use?--  'Just mind your own fucking business.  Keep out of it.  It's nothing to do with you.'

Is that what he said?--  I'm pretty sure that's what he said.'

Later in cross-examination, when it was suggested that Mr Lester's response was indignant this passage occurred.  Question by Mr Pappas:

'What I want to suggest is that based on the evidence that you've given of that conversation with Mr Lester, you would have understood his response to be one of indignation, wouldn't you?-- Yeah.

Effectively saying, 'I'm not even going to dignify that question with an answer.'?--  He could have gone the other way too, couldn't he?

Well, do you agree with me that that's right, that he was effectively saying to you, 'I'm not going to dignify that question with an answer.'?-- I don't think at the time he said that, though.  He wasn't being smart or being indignatious, anyway.  He said what he said to me.'

Now, you've heard the submissions from Mr Boyle and Mr Pappas about this passage.  I've read it to you.  It's up to you to decide whether that was an accusation or an assertion, or a question which required an answer, friend to friend, and whether the answer or the lack of it given by the defendant is an implied admission that he was somehow involved in the death of Mrs Lester.  It is a matter for you to decide whether those brief interchanges amount to an implied admission by the defendant that he did have something to do with the death because he did not deny it expressly.  You must consider whether a friend asking another friend if he is implicated in his wife's death calls for a denial if in truth he had not been involved and, of course, you must consider whether there was an answer given which amounted to a denial.

You also heard evidence from Mr Challender that he has a condition of schizophrenia which affects his memory.  That creates a risk that his evidence might not be an accurate reflection of what actually occurred.  Because of that risk you must approach his evidence with special care.  He had no notes of the conversation and was only asked to recall it when he gave a statement to police in February 2006, more than three years after the events.  You can act on it if you are convinced of its accuracy, but it would be dangerous to convict the defendant on that evidence if you could not find other evidence to support it."

[44]  I am unable to accept that the primary judge erred in exercising his common law discretion against excluding the evidence.  The evidence was potentially highly prejudicial to the appellant but it has not been shown that its admission was productive of any unfairness to the appellant in his trial.  The jury was given comprehensive and careful directions as to how the appellant's words could or could not be used.  The jury was also warned that Mr Challender's evidence needed to be scrutinised carefully because of his psychiatric condition and the lapse of time between the alleged admission and when he was first asked to recall it.  There was no need for the trial judge to give a further warning concerning "imprecision of language".

[45]  For the same reasons, if s 130 of the Evidence Act creates an additional discretion, the trial judge did not err in exercising it.

Ground - the conviction is unsafe and unsatisfactory as:

(a)the jury was not reasonably entitled to find that Kinsella's conduct on 19 November 2002 was procured by the appellant;

(b)the jury was not reasonably entitled to find that Kinsella was motivated to murder the deceased by anything said or done by the appellant prior to 19 November 2002;

(c)the jury could not reasonably prefer the evidence of Kinsella that he murdered the deceased because of the offer of payment of $10,000 to other evidence of Kinsella that he did not go to the house of the deceased with the intention of murdering her, that he does not know why he went there and that he did not murder her because of anything said to him by the appellant.

The appellant's counsel's submissions

[46]  Counsel for the appellant placed particular reliance on the following matters:

(a)When Kinsella implicated the appellant in the course of a journey in a police car to Maryborough, Kinsella said that he was initially unsure as to how the appellant was going to pay him.  This contrasts with his evidence on trial that he was to be paid $10,000;

(b)Kinsella initially lied to the police about having any involvement in the killing and gave an exculpatory version with a view to throwing investigators off the scent;

(c)Even after confessing his involvement in the crime, Kinsella continued to tell lies to investigators about his movements inside the deceased's house - whether he went into the kitchen at all and that he did not know the deceased's throat was cut;

(d)It follows that Kinsella deliberately attempted to distance himself from the possibility that he had armed himself with a second knife for the purposes of the attack;

(e)Kinsella didn't mention to police in his formal interview at the Maryborough Police Station an offer of another $10,000 from the appellant to murder the deceased.  Nor did he mention the offer of a boat;

(f)Kinsella untruthfully asserted that he told his brother on the day of the killing that he expected to come into money;

(g)Kinsella's evidence of the mechanism of the killing is likely to have been untrue and in many respects was implausible.  For example, he claimed that he pushed down the deceased's skirt during the attack, despite the fact that he was inflicting severe wounds on her with a knife.  It was open to the jury to conclude that Kinsella moved the deceased and/or interfered with her skirt before he left the house; and

(h)Kinsella accepted that at the telephone box at Hervey Bay the appellant may have said to the deceased, "I wish you were dead", rather than that he was intending to kill her;

(i) Kinsella asserted that the appellant gave him specific instructions that the deceased was to be shot with a gun from across the road from her house.  There were no instructions alleged to have been given by the appellant for Kinsella to use a knife;

(j)The aggregation of these matters meant that the quality of Kinsella's evidence was worse than tenuous; and

(k)The frenzied nature of the attack was equally, if not more consistent, with an emotionally driven attack than with a cold blooded killing in pursuit of a plan.

[47]  There was a reasonable, rational hypothesis consistent with the appellant's innocence open on the evidence; Kinsella had gone out looking for a girl (confirmed by his brother, Steven); Kinsella had no success in locating the girl in Gympie; he did not go to the deceased's house intending to kill her; he was unable to explain why he went there when he did.  Kinsella killed the deceased for reasons unrelated to any earlier procurement by the appellant.

[48]  On the basis of Kinsella's evidence that he only intended to kill the deceased when he felt the knife in his pocket while inside the house, the jury could not have excluded the reasonable possibility that Kinsella's motive for the killing was unrelated to whatever earlier procurements were made by the appellant, if in fact any were made.  That proposition was fortified by Kinsella's evidence in the committal hearing that he didn't go to Hervey Bay to kill the deceased, that he did not buy the knife to kill the deceased and that it was only when he felt the knife in his pocket that he made an instantaneous decision to kill the deceased.

[49]  Although Kinsella's evidence was supported by other evidence in peripheral respects, for instance in relation to the key left with the car and the telephone calls to Kinsella's telephone, the evidence of procurement was without corroboration.  Consequently, the case turned on the jury's assessment of Kinsella's motives for the killing.  The accumulation of lies, particularly those relating to the involvement of the appellant and the minimisation of the mechanism of the killing, necessitate a conclusion that it would be dangerous to allow the verdict to stand.

Consideration of the unsafe and unsatisfactory ground

[50]  The test to be applied by this Court in determining whether a verdict is unsafe or unsatisfactory is formulated by the majority in M v The Queen.[13]In MFA v The Queen, Gleeson CJ, Hayne and Callinan JJ, said:[14]

"Where it is argued that the verdict of a jury is unreasonable, or cannot be supported, having regard to the evidence, the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in their joint judgment in M v The Queen.  That test was accepted and applied by this Court in Jones v The Queen.  In M, it was pointed out that it was once common for expressions such as 'unsafe or unsatisfactory', or 'unjust or unsafe', or 'dangerous or unsafe' to be used in place of the language of s 6(1) of the Criminal Appeal Act, and corresponding statutes in other jurisdictions, and that such expressions might cover different parts of the statutory provision, referring, for example, either to a verdict that is unreasonable, or cannot be supported, having regard to the evidence, or to a miscarriage of justice because an accused has not had a fair trial according to law.

Speaking of cases where what is in question is whether a verdict is unreasonable, or cannot be supported having regard to the evidence, the joint judgment said:

'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" (footnotes deleted)

[51]  In their joint reasons in MFA v The Queen, McHugh, Gummow and Kirby JJ said:[15]

"The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'.  In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:

'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.'''

[52]  There was a body of cogent evidence available to the jury which supported the conclusion that Kinsella had murdered the deceased at the request of the appellant.  The appellant had a strong motive for the killing.  Kinsella had none, other than a desire to be paid money by the appellant.  The appellant was engaged in a protracted dispute with the deceased over property and custody.  There was evidence that he was jealous of the deceased's relationship with Mr Morrison.  He had assaulted Mr Morrison and the deceased.  He harboured a strong animosity to the deceased as a result of the marriage break-up and her subsequent conduct, real or imagined.  He blamed her for his imprisonment and for the death of his son, Troy.  He had spoken to persons other than Kinsella of a desire to kill the deceased.

[53]  The appellant's continuing obsession with the deceased was manifested by his venture into Queensland in breach of his bail conditions.  On that occasion he endeavoured to locate the deceased at Hervey Bay.  Unsuccessful in the attempt, he persevered, having Kinsella drive him to Brisbane, where the deceased's vehicle was located at Mr Morrison's house.  Mr Morrison's evidence corroborates Kinsella's evidence that the appellant went to Mr Morrison's house, listened to what was happening there and fled when a sensor light was activated.  The appellant, according to Kinsella, was then clad in camouflage gear and carrying a metal pipe. 

[54]  Prior to calling at Mr Morrison's house, Kinsella told of the appellant's attempt to purchase a baseball bat at the Chermside Shopping Centre.  There is some corroboration for Kinsella's story in this regard.  Admissions made by the appellant also provide some corroboration for this part of Kinsella's evidence.

[55]  Kinsella's evidence is supported by the card given to him, he said, by the appellant over the border near Goondiwindi with Mr Kalisperis' phone number on it.  It will be recalled that on 16 November 2002 the appellant telephoned Mr Kalisperis, who located the deceased's car at Mr Morrison's house.  The telephone records are of particular significance.  There was a flurry of calls between 2 and 18 November 2002 to Kinsella from phone booths near the appellant's parents' house in Melbourne.  Nine of the calls were made in a period of about one and a half hours on 18 November, the day before the killing.  No explanation for these calls was offered by the defence.  Significantly, on the day of the killing, the appellant telephoned Mr Gillespie from his parents' house in Melbourne.  When interviewed by a Victorian police officer on 20 November, the appellant mentioned that telephone call but denied knowing Kinsella.  This lie, coupled with the appellant's lie about when he had last been in Queensland, were capable of being treated by the jury as falsehoods told out of a consciousness of guilt.

[56]  It does not appear to me that lies told by Kinsella in an attempt to divert suspicion from himself before he confessed to killing the deceased are of much significance.  It is only to be expected that a person in his position would do what he could to avoid being convicted of murder and sentenced to life imprisonment.  The discussion of "a letter of comfort" in the police car is something which the jury was entitled to take into account in assessing Kinsella's credibility.  However, they were also able to take into account Kinsella's evidence to the effect that he had no belief that any such cooperation with the authorities could have resulted in his avoiding a life sentence.

[57]  Kinsella's evidence about when he was first asked by the appellant to kill the deceased was not consistent but he was consistent in his assertions that the appellant did ask him to kill his wife for payment and that he did so on more than one occasion.  It was put to Kinsella by defence counsel that on 16 November when the appellant ascertained that the deceased was in Brisbane with Mr Morrison, he became quite upset and emotional.  Kinsella responded, "Yeah, he was crying a bit".  Defence counsel also put to Kinsella and he accepted, "There's no doubt that [the appellant] discussed with you ways in which she could be killed?".  Kinsella conceded that at the time of the appellant's calls from the telephone box in Hervey Bay he could remember the appellant saying something like, "Well, I wish she were dead" and he said that he couldn't remember whether the appellant said, "I want to go down there and kill them both".  He did reaffirm, however, that words to that effect were said by the appellant at the Chermside Shopping Centre.

[58]  As counsel for the respondent submitted, the lies told by Kinsella about the way in which he killed the deceased and the circumstances surrounding her death may well have been because, as Kinsella said in evidence, "No-one likes admitting to murder".  This is particularly true of the gruesome knifing of a defenceless woman.  It was also open to the jury to conclude that there was little reason for Kinsella to wish to implicate his friend if it was not in fact the case that the appellant had procured him to kill the deceased.  They were, after all, long-standing friends and there is no evidence of any dispute or animosity having arisen.

[59]  Acceptance by the jury of Kinsella's evidence that he did not go to Hervey Bay on 18 November intending to kill the deceased did not require the jury to conclude that Kinsella's motive for killing was unrelated to any requests or offers made of him by the appellant.  Kinsella was aware of the appellant's violent disposition and of the appellant's jealousy concerning the deceased.  There was no suggestion of any sexual contact between Kinsella and the deceased.  The evidence was that Kinsella had stayed in the deceased's house on a prior occasion and had a friendly enough relationship with her.  It is difficult to resist the conclusion that Kinsella was motivated to go to the deceased's house because of his recent visit there with the appellant and as a result of his discussions with the appellant.

[60]  Before entering the deceased's house, Kinsella took the opportunity of arming himself with a knife suitable for killing and he ultimately used it in the killing of the deceased.  It was thus well open to the jury to conclude that when Kinsella finally decided to kill the deceased, his reason for doing so was his acceptance of the appellant's request and offer of payment.  The fact that Kinsella killed the deceased other than in a way suggested by the appellant does not weaken these conclusions.  The appellant had put forward a number of suggestions for the killing of the deceased and the evidence does not reveal that the appellant conveyed to Kinsella that he had any special preference for any method of killing.  It was open to the jury to be satisfied beyond reasonable doubt on the whole of the evidence that the appellant was guilty.

Conclusion

[61]  The appellant has therefore failed to succeed on any of the grounds of appeal and I would order that the appeal be dismissed.

[62]  WHITE JA:  I have read the reasons for judgment of Muir JA and agree with his Honour for those reasons that the appeal should be dismissed.

[63]  MULLINS J:  I agree with Muir JA.