IN THE COURT OF APPEAL [1993] QCA 559 SUPREME COURT OF QUEENSLAND C.A. No. 292 of 1993 Brisbane [R. v. Griffiths] BETWEEN: T H E Q U E E N v. SHANE PAUL GRIFFITHS (Appellant) The President Mr Justice Davies Mr Justice Pincus Judgment delivered 20/12/93 Joint reasons for judgment by Pincus and Davies JJA. The President dissenting. APPEAL AGAINST CONVICTION DISMISSED. APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE REFUSED. CATCHWORDS: CRIMINAL LAW - Manslaughter - evidence of

admissions to four girls, with whom appellant acquainted, that he killed the deceased - deceased shot once through back of head - deceased was classmate of appellant - whether verdict unsafe and unsatisfactory - duty of appellate court.

Counsel: S Herbert QC for the appellant. D Bullock for the respondent. Solicitors: Legal Aid Office for the appellant. Director of Prosecutions for the respondent. Hearing Date: 8 October 1993

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IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 292 of 1993 Brisbane Before The President Mr Justice Davies Mr Justice Pincus [R. v. Griffiths] BETWEEN: T H E Q U E E N v. SHANE PAUL GRIFFITHS (Appellant) REASONS FOR JUDGMENT - THE PRESIDENT Judgment delivered 20/12/93 The appellant has appealed against his conviction for

manslaughter in the Supreme Court at Brisbane on 30 July 1993.

He has also sought leave to appeal against the sentence imposed

upon him, which was imprisonment for five years with a

recommendation that he be considered for parole after eighteen

months. The grounds of appeal are as follows:

"1. The learned Trial Judge erred in not allowing the defence of accident to be considered by the Jury.

2. The verdict was unsafe and unsatisfactory insofar as

it was based on the evidence of Jodie Parker, Janelle Bingham, Lee Anne Clarke, and Shandelle Smerdon, which evidence was demonstrably unreliable.

3. The sentence is manifestly excessive in all the

circumstances." The deceased, John Lachlan Apps, who was a classmate of the

appellant at Caboolture State High School, disappeared on about

28 November 1989 and his skeletal remains were not found until

24 November, 1990, almost a year later. Medical evidence

established that he died within 3 months of his disappearance.

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He had been shot once, through the back of the head, with a .22

weapon which possibly belonged to his father. Neither the

weapon which caused the death of the deceased nor his father's

rifle was found after the deceased disappeared.

The appellant, who was born on 2 September 1973, and the

deceased, who was born on 23 September that year, were each 16

years of age when the deceased disappeared and the appellant was

19 years old when he was convicted and sentenced. He has no

other criminal convictions and there is nothing to connect him

to the death of the deceased except his statements to four girls

with whom he and the deceased were acquainted. Some, at least,

of the girls attended the same school as the appellant and the

deceased and all seem to have been approximately the same age as

the two boys although, in some cases, somewhat younger.

One of the girls, Jodie Parker, gave evidence of an

occasion when she was walking on a bridge over the railway line

at Caboolture with a friend, Natasha Davidson, and had a

conversation with the appellant. Ms. Davidson confirmed such an

occurrence, but described it differently. According to Ms.

Parker, the appellant joined her when she was walking with Ms.

Davidson, who then fell behind to walk with other friends.

According to Ms. Davidson, she was walking with Ms. Parker when

she crossed the road to speak to the appellant. On neither

version was Ms. Davidson able to hear the conversation between

the appellant and Ms. Parker. However, she described a change

in Ms. Parker's demeanour following her conversation with the

appellant, "... when she left she was her normal self, bubbly,

when she was back, she was quiet and hardly talking, which isn't

Jodie."

Ms. Parker was initially unsure when the conversation with

the appellant occurred, but later accepted that it was probably

after the deceased's body was found and, it seems from the

appellant's statements to Ms. Parker, that it was before it was

known that the body had been identified as that of the deceased.

Ms. Parker's evidence was as follows:

"Tell us what conversation you had then with Shane ? -- he said to me, 'I know whose body is up in the mountains.' He didn't say whose it was. He just said, 'I know whose it is

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and I was the one that killed him.' Did you say anything to that ?-- I turned around and said,

'I don't want to know.', and walked away. You said what ?-- 'I don't want to know about it.' ... Just go on from that, sorry, I didn't get it all down ?--

He said, 'I know whose body it is up the mountain. I was the one that killed him', and do I have to say the next bit?

If there was more, say it ?-- Okay. 'If you tell anybody,

I'll do the same to you.'" It is necessary also to quote some of Ms.Parker's cross-

examination, which in part related to evidence which she had

given at an earlier, abortive trial.

"HIS HONOUR: What do you say about that suggestion, Miss Parker? You really have to make a response. He is suggesting that none of that conversation took place and, in particular, the last bit about, "If you tell anybody I'll do the same to you." What do you say to that suggestion?-- Well, it happened. That's all I've got to say.

MR PARKER: Did you take it seriously?-- Yeah. Who

wouldn't? You thought it was a joke, didn't you?-- At first I did. You say that this was said, those words that I have just gone over with you, and that you said, "I don't want to know about it.", and you walked away?-- Yes. That was the end of the conversation?-- Mmm hmm. That's the total sum and substance of the conversation?--

Yep. So you say Shane Griffiths walked up to you out of the blue

in the middle of Caboolture, tapped you on the shoulder and confessed to a killing and then walked away, you walked away?-- That's the way it happened. I can't say anything else. That is the way it happened.

I put it to you that's nonsense, Miss Parker, it's

nonsense?-Well, it's not. It never took place. How long were you with him? How long

did this conversation take?-- Less than five minutes.

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Less than five?-- I wasn't going to stay around. . . . Did it occur to you when you heard these words, as you say

you heard, that this was a joke he was playing on you?-- It did at the time, until later on.

That he was teasing you?-- It did at the time but not

later on. Hang on a minute. You never told the police about this;

did you?-- No. Did you tell anyone about it?-- Yes. Who?-- My brother. But you never brought it to the attention of the police?--

No. . . . Yes. You didn't bring it to the attention of the police

until-----?-- Last year. . . . Was it after you had heard that Shane Griffiths had been

committed for trial?-- I got a phone call at school from a friend saying that he had been put on trial.

Right. Up until that point these remarks you hadn't

brought to the attention of anybody?-- That's right. Other than your brother?-- That's right. It was only when you heard that Shane was put on trial that

you put this information forward, wasn't it?-- Yep. Was that because you had regarded it all as having been a

joke or as having been a cruel teasing?-- Not all the time.

Wasn't it the case that you hadn't taken his remarks

seriously and had, for that reason, not brought them to the attention of the police?-- No, I took them seriously, after a while.

After a while?-- Mmm hmm. Like about three months. But at the time you say the remarks were made you took it

as-----?-- At that time I thought it was a joke. You thought it was a joke?-- Until later.

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And he was trying, perhaps, to frighten you or something

like that?-- Mmm hmm. Is that right?-- Yep. You agree with me, don't you, that you could be either

confused or mistaken about what took place at Caboolture?--Nope.

You don't agree with that?-- Nope. Do you remember giving evidence in a proceedings similar to

this?-- Yep. Earlier this year?-- Mmm hmm. Do you remember me asking you questions?-- Yep. Do you remember me asking you these questions and you

giving these answers - page 129. "What I'm putting to you is that you are confused about that conversation or you have made it up, one or the other.", and you said, "I'm very confused and no, I have not made it up."?-- Yes, I remember that.

Question, "You could have made a mistake, couldn't you?--

could have."?-- I remember that. "You could have misunderstood?", I said to you, "You could

have misunderstood?!', and you said, "What he meant."?-- Mmm hmm -

You said, "Yes, I could have. It's possible."?-- Yep. Do you still agree with that?-- No. You don't agree with that?-- No. You said that under oath last time, didn't you?-- I know.

The only reason - I was confused because the questions that you kept asking were all twisted around, but it was still the same question and that really confused me then. I'm not confused now because I understand.

I haven't been twisting anything you have said today, have

I?-- No. Do you remember I asked you this on page 128, "Are you

confused about what Griffiths said to you?-- Yes."?-- Yeah, I remember that.

It's a simple question, isn't it?-- Yes. You said you were confused?-- I did. Do you remember His Honour the Judge at that time - a

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different Judge-----?-- Mmm hmm. -----saying, "You see, the possibility that I am trying to

see is whether there was a possibility of this, whether Shane was trying to scare you.", and you said, "Yes. I don't know. That's what I thought it was at first."?-- I remember that.

Do you still agree with that?-- Yes. . . . Miss Parker, you were two years younger than Griffiths,

weren't you?-- Yes. Would you agree with me that when kids - and this is a

generalisation I suppose, but when kids are in their teens, two years of age difference is a big difference, isn't it?-In some cases, yes.

You say that this young boy or young man came up to you

right out of the blue, you, a girl who is two years younger than him, right out of the blue, in the middle of Caboolture, and says this to you?-- Yes.

You say, "I don't want to know about it.", and you walk

away?-- Mmm hmm. End of conversation?-- Yes. It never happened, did it?-- It did. You weren't curious to ask him what he was talking about?--

No. And that was the end of it?-- Yep." The other witness who gave evidence that the appellant

admitted killing the deceased was Lee Anne Clarke. It is

convenient to quote passages from her evidence as to what

occurred while she was waiting for her brother outside a

doctor's surgery in Caboolture one evening on a date which was

not established.

In her examination in chief, Ms. Clarke said:

"Did you see somebody? Did you see somebody come along?--Yes.

Who was that?-- Shane. What happened then?-- We stopped and we were talking. We

asked each other how we were going and what did we actually

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- what have we been up to and we just had a few laughs, and after that we were in a joking - it was a joking sort of situation. His tone was like getting serious and then joking and then he turned around and he said to me, "I shot or I killed John. It was an accident. I didn't mean to do it.", and like, I thought he was joking. I took it as he was joking.

MR COSTANZO: But had his tone changed at that stage?--

Well, he was - like, at first when he said it was like when he came straight out with it and then afterwards, he turned around and he was laughing about it and I took him - I just thought he was joking.

HIS HONOUR: Did he say it more than once or only once?--

Only once. Only once? So you and he are having a bit of a joke

together and talking about what you had been doing and that sort of thing for a while?-- Yes.

Then his mood seems to get more serious and he says those

words, "I killed John and it was an accident and I didn't mean to do it."?-- Yes.

You thought he was joking, did you?-- Yes. MR COSTANZO: You mentioned shooting. Do you recall

anything more about the words he used?-- No, I don't. I can't remember.

Did he use the word "shooting" or "shot"?-- I can't

remember. HIS HONOUR: When you gave your evidence before I think you

said that he said, "I shot" or "killed John."?-- Yes. Remember saying that?-- Yes. Are you able now to remember accurately which word he

used?-- "Killed". "Killed"? You are fairly confident about that, are you?--

Yes. MR COSTANZO: Did he expand on that, did he say how he

killed him?-- I can't remember. What do you say he said immediately after he said "killed

him"?-- I am sorry, I don't understand. Perhaps you can just repeat what he said?-- He turned

around and said to me that he accidentally killed him, that "I killed John but I didn't mean to do it.

Did he use the word "accident"?-- Accident?

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Did he use the word "accident"?-- Yes. Did he explain how that happened? - I can't remember. How long did this part of the conversation last?-- Not

long. Just after that I just sort of turned off and, like, he turned around and he said that he had to go and we said, 'Bye , and that was it. He left and I was just waiting for my brother."

. . . Under cross-examination, she said: "Do you remember hearing about John or a body, in any

event, being found at the end of 1990 ?-- I heard about it. You heard about it. Did you read about it in the paper?--

No. Did you hear about it on the news?-- No, I heard it on the

radio. Heard it on the radio, did you? Then shortly after that,

did the police come and ask you any questions about what you knew about John Apps and his disappearance?-- Yes, they come and asked me a few questions and I couldn't say anything because I didn't know anything. I didn't know what had happened, how he went missing. At that stage I was really confused and upset and I was having hassles with my own family. I couldn't say anything. That's why I did a second statement.

But you did give a statement to the police in October of

1991, didn't you?-- Yes. Did the police tell you what they wanted that for - that

that was for an inquest that was to be held?-- Yes. When you gave that statement to police in October of 1991,

that was after you had had this conversation which you have told us about outside the doctor's surgery, was it?-- I can't remember.

You can't remember? Can you say when this conversation

outside the doctor's surgery in Caboolture happened?-- I'm not sure what date it was.

I think you said earlier it was about halfway through Grade

9?-- Yes, but I don't know what month or what year. I knew it was just before dark. It was starting to get dark then.

Weren't you in Grade 10 the year that John Apps went

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missing?-- I would say so. I'm not quite sure. I can't remember back that far.

You can't remember. Your memory of all of these events is

pretty hazy, isn't it?-- Yes, it is really hard to think back and remember. I haven't been - like, it has been such a long time and I haven't been myself.

What do you mean by that?-- Well, I have had a few

problems, like, I have been on some nerve tablets and that and it is reallY hard to think all the way back there because it has been so long.

You have had some emotional problems of your own?-- Yes. In any event, when you spoke to the police in 1991, October

of 1991, and gave them a statement, would you agree with me that you said this - have you had a chance to look at that statement recently?-- Yes.

Would you agree that you said this to them: "I don't

remember ever talking to Shane Griffiths about where John had gone or what happened to him."?-- Yes.

You said that to the police, didn't you?-- Yes. That was in October of '91?-- Yes. Do you agree that you also said this: "I do not know how he

died, but I do remember a rumour that Shane Griffiths was supposed to have killed him, but I don't think it is true." ?-- Yes.

You never said anything to the police then about any

conversation with Shane Griffiths, did you?- No. You talk about a rumour, "I do remember a rumour". There

were all sorts of rumours going around about what happened to Appsie", as he was known, weren't there?-- Yes.

. . . MR PARKER: And one of them was Shane Griffiths had done it;

is that right?-- Yes. You said to the police at that time, "I do remember a

rumour, but I don't think it's true."? - Yes. Were you aware that in 1992 an inquest was held into the

death of Mr Apps?-- Yes. Were you called as a witness at that inquest?-- No. When I say "were you called", I know you didn't give

evidence?-- I was called, but I didn't give evidence.

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But were you asked to come to Court and that you might have to give evidence?-- Yes.

That was at the Magistrates Court at Maroochydore, was

it?-- Yes. Did you, in fact, go to the Court to give evidence?-- No. Who contacted you in that regard?-- I can't remember. Was it a police officer?-- Yes. I take it when that police officer contacted you about the

inquest you didn't say anything to him or her about this conversation outside the doctor's surgery?-- No.

You never mentioned it then? In fact, it wasn't until

January of 1993 that you ever mentioned this conversation, wasn't it?-- I can't remember.

Let me refresh your memory. Do you recall at the beginning

of this year - I am talking about January of this year - being called upon with a possibility that you might have to give evidence in another proceedings relating to this matter?-- Yes.

That was at the beginning of January this year?-- Yes. Were you then contacted by Sergeant Thompson, the gentleman

seated up the back there, the police officer, about giving evidence here?-- Yes.

Was it at that time that you first mentioned this

conversation that you say happened outside the doctor's surgery? - Yes.

That's the first time you ever mentioned it to a police

officer, wasn't it?-- Yes. In fact, is that the first time you mentioned it to

anyone?-- Yes. This conversation that you say took place, that Shane

Griffiths had with you, outside the surgery. I think it was your evidence that you were there with your brother to take him to the doctor?-- Yes.

And that Shane came along?-- Yes. And that you had a bit of a conversation about general

things?-- Yes. Can you remember how long it had been since you had seen

Shane on that occasion?-- No.

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Then you say that Shane made this remark to you, either, "I shot John, but it was an accident, I didn't mean to do it.", or, "I killed John, but it was an accident, I didn't mean to do it.", something along those lines?-- Yes.

Firstly, can you tell us whether the word "shot" was used

or whether the word "kill" was used?-- "Killed." "Kill." You see, you are trying to remember something that

happened years ago, aren't you?-- Yes. . . . ... You say that he said these words to you, "I killed

John, but it was an accident, I didn't mean to do it.", Something like that?-- Yes.

You thought he was joking, didn't you?-- Yes, because we

were all friends. You know, we were friends and I couldn't believe that he would do anything on purpose, you know.

Was it because you thought he was joking, that he wasn't

serious, that it couldn't be true, you simply put it to one side and never mentioned it to anyone?-- Yes.

That's why it never came to light until January of '93; is

that right?-- Yes. Was it because Sergeant Thompson, when he contacted you

about Court, asked you, "Is there anything else you can remember?", that you mentioned this remark?-- Yes.

When you mentioned that remark to him, he then came down

and took another statement from you at Logan Police Station; is that right?-- Yes.

It is a fair while ago that this meeting, you say, took

place and you say you have had some emotional problems?-- Yes.

. . . Could you be confused about that conversation? - No. . . . Did you only ever have one meeting with Shane outside the

doctor's surgery above the K Mart?-- Yes. Only on one occasion?-- Yes. In any event, you say that you didn't take these comments

seriously?-- No, I didn't. HIS HONOUR: It was a statement, it wasn't a comment.

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You didn't take the statement seriously?----- MR PARKER: The things that Shane had said?-- No, I didn't

take them seriously. XXN: You thought he was joking?-- Yes." The remaining evidence implicating the accused related to a

conversation which the appellant had with Janelle Bingham and

Shandelle Smerdon at a discotheque in 1990.

In her evidence-in-chief, Ms. Bingham said:

"Do you recall any further conversation with Shane Griffiths about John Apps after that time?-- At a Blue Light Shane said that he had been called by John and that John was going to send up the address.

Let's try and get more detail there. You say that was at a

Blue Light?-- Yes. You mean a Blue Light Disco?-- A Blue Light Disco. Where was it held?-- Caboolture State High School. Can you be more specific about the time?-- Probably around

7 o'clock when everyone was arriving. What about the date?-- I couldn't tell you the date. When is your birthday?-- 15.6.74. Your birthday is in June?-- Yes. Was it before or after - I will take it back a step - in

what year was this further conversation at the Blue Light? - It would have been 1990.

Was it before or after your birthday in June?-- It would

have been after. Were you with anyone?-- Yes, Shandelle Smerdon. Was she with you or not when you had this conversation with

Shane Griffiths?-- She was standing beside me. Can you give us again what he said?-- He just said that

John had rang him and given him - talking to him and he was going to send his address up.

Did he say where John had rung from?-- No. Have you received any such phone calls yourself?-- One. When was that?-- I couldn't tell you. I don't remember

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the date. Who did you speak to?-- John. Can you be any more specific about the date?-- No, I

couldn't. Was it before or after the last time you saw him?-- After

the last time I saw him. How long after?-- I couldn't tell you. It was two years

ago. I don't remember. It was longer than that, actually. How are you able to say that it was John?-- Because he

knew things about the group that nobody else but the people in the group knew.

What about the voice? Were you able to identify the

voice?-- It sounded like John. How long did that conversation last?-- 20 minutes. It sounded like John's voice?-- Yes. You said you were together with Shandelle Smerdon at the

Blue Light?-- Yes. Have you seen her much since those days?-- Yes. Do you still see her?-- Yes." Under cross-examination, Ms. Bingham said: "... sometime after that you received a phone call from

John?-- Yes. Can you say how long after that was?-- No. After the last time that you saw him - you said you saw him

about three weeks before the end of school. How long afterwards was that phone call?-- It would have been a long time afterwards.

Can you say how far into the next year?-- No, not off the

top of my head. Was it in the next year, was it?-- Yeah. I assume when you received that phone call, you would have

been anxious to let other of your friends know that John had called?-- Not really.

. . . You said that you had a conversation - make sure I get this

you said you had a conversation with Shane at a Blue Light

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Disco?-- Yes. Where was that? At the school, was it?-- Yes, it was held

at Caboolture High. What do you say that Shane said to you?-- That he had a

phone call from John and that John was sending up his address.

Could it not be that you said that to Shane, because you

had -----?-- No. Let me finish - you had had a phone call from John, hadn't you?-- Yes. Wasn't it the case that you said that to Shane?- No. That you said that you had heard from him?-- No. . . . MR PARKER: I am not suggesting that you are not telling

the truth or anything. What I am saying to you - this all happened years ago, didn't it?-- Yes.

When Apps - when John Apps went missing, there were a lot

of rumours around, a lot of speculation about where he had gone or what had happened to him, wasn't there?-- Yes.

The kids at Caboolture High talked about it a lot, didn't

they?-- Yeah. . . . You had received this phone call from John?-- Yes. And had he told you where he was?- No. Did he tell you he was in Sydney?- No. Did you ask him where he was?-- No. Weren't you curious to know where he was?-- At the time

all I cared about was the fact he was safe and he was talking to me and that was it.

Now, since this all happened a long time ago, and since

there was a lot of talk and rumour about what had happened, what I am suggesting to you is that you may be mistaken. I am not saying you are not telling the truth, but you may be mistaken about how that conversation occurred and that it was you that said to John that you had heard from - that you said to Shane that you had heard from John; could that

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have happened?-- No, it couldn't have happened. No, the conversation was Shane told me. I never told Shane

about John calling me. I never mentioned the telephone call.

Well, if Shane said something to you about John, wouldn't

you have brought it to his attention that you had heard from John?-- Why?

You knew that Shane was John's best friend?-- Yeah, but

John had already contacted Shane, so why would I need to tell him?

How do you know that? How do you know that John had

contacted Shane?-- Because he'd told me in a conversation at the Blue Light.

Could it not have been that what he said to you was

something along the lines, "I have heard that John's in Sydney", not that, "I have heard from John", but "I've heard that John's in Sydney."?-- No.

What do you say that he said to you?-- He told me - I

couldn't tell you the exact wording because it's been so long, but he told me that John had called him, because I was going to get the address from him to give to Christine so that we could find out where John was.

You say that he said that to you, but you didn't tell him

that you had heard from John?-- No. Why?-- It happened. I don't know why I didn't tell him.

I just didn't. HIS HONOUR: Can you remember if you had received your

phone call, which you say was from John, at that stage, that is at the stage of the Blue Light disco conversation?-- It would have been before, a long time before.

What would have been before?-- The telephone call that I

had from John would have been up to about two months before I had spoken to Shane.

Before you spoke to Shane, yes?-- Mmm. MR PARKER: Are you sure this conversation that you have

related ever took place at a Blue Light disco?-- Yes, I'm sure.

You are sure of that?-- Yes.

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Did you ever have conversations with Shane near the K-Mart in Caboolture?-- No.

No? I am going to suggest to you once again that you are

confused about that and that I will put this to you: that that conversation - or I will put it this way: no conversation took place at all with Shane at a Blue Light disco about Apps. What do you say about that? ~ I'd say that there was a conversation and it took place out front of the Blue Light and I was with Shandelle Smerdon at the time.

Out front of the Blue Light?-- Yes. Is that near the K-Mart?-- Nowhere near it. It was down

at Caboolture State High School. I suggest to you that the only time Shane spoke to you

about John Apps was outside the K-Mart, not at the Blue Light, and he told you that he had heard that John had a paper run. Do you remember that?-- No conversation was held about that was held with me. I don't know anything about that at all.

You say that Smerdon was with you, Shandelle Smerdon was

with you when this all took place?-- Yes. Do you know whether or not she was in a position to hear

these conversations?-- I couldn't tell you. I will put it to you that Shane never said to you that he

had been telephoned by John from Sydney or from anywhere. What do you say to that?-- I say that he did."

Shandelle Smerdon gave evidence as follows:

"Do you recall going to a Blue Light disco?-- Yes, I do. Did you have a conversation there with Shane Griffiths?--

Yes. Was anyone else present?-- Janelle. Do you recall when this was?-- It was in 1990. Can you recall what part of the year it was?-- Hey ? Can you recall if it was the first or the second half of

the year? -- No, I can't. Would you tell us your recollection of this conversation,

who said what?-- Shane said, "Hello." and we both said, "Hello.", and then Shane said that he had heard from John and I said, "Oh, how is he?" He said, "He's fine.", and I said where was he and he said he was in New South

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Wales and that was it. The rest of the time I was listening to the music.

Yes. Other than that, have you had any other

conversations with Shane Griffiths about John Apps?-- No, I haven't."

The following are extracts from her cross-examination: "What I am saying is that you never heard - tell us what

you say you heard about the conversation that you have just related to my learned friend, Mr. Costanzo?-- I heard the conversation but I didn't - I listened to it and then I started listening to the music because Shane and Janelle started talking more.

Tell us what you say you heard---- HIS HONOUR: Can I just ask you first - at this time

you were about to say what someone said and perhaps what you responded. At this time was Janelle there?-- Yes, she was.

Within hearing distance?-- Yes, she was. She was standing

right beside me. So she would have heard this too?-- Yes. No----- MR PARKER: What did he say----- HIS HONOUR: You said hello to Shane?--- Yes. Then what happened? What was said then?-- Then he said

he's heard from John and he said that John was down in New South Wales and I said, "How is he?" He said he was fine and that he was down in New South Wales and I said, "Okay.", and that was it.

When you say, "I said, "Okay." "---?---- Yes . ------ you don't remember saying that, obviously, do

you?-- No, but it was on that line, yeah. That was sort of the substance of the conversation, was

it?--- yes." Later, she was asked about testimony which she had

previously given at the inquest into the death of the

deceased:

" Would you agree that there was this question and answer? "You say you saw Shane at a Blue Light disco?",

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and you said, "Disco."?-- Yes. The policeman said, "What was the significance of that?",

and do you recall saying this, "Janelle and Shane were just talking about John. I don't know what they were saying." Remember saying that? - Yes, but that was after I asked Shane about John.

HIS HONOUR: You are saying that you had this little

conversation with Shane?-- Yeah. And then after that?-- Shane and Janelle started

talking. Shane and Janelle-----?-- Started talking. Continued talking?-- Yes, and that's when I continued

listening to the music. MR PARKER: You heard nothing of the conversation between

Janelle and Shane; is that right?-- Except for the part where we asked Shane about John. That's all I heard, and the rest I wasn't really listening to.

Do you remember - at page 237 line 10 or a bit before

that, line 8 - do you remember these questions and answers, "You do remember that after the conversation you asked Janelle what the conversation was about?-- Yes." "Janelle told you?-- Yes." "That Shane had said John was in Sydney? - Yeah, because I heard that part but I wanted to find out more." Then a bit further on line 22, "Are you sure it was Shane that was telling Janelle that John was in Sydney?-- Yes, I'm pretty sure." You are not positive about that?-- I am sure.

I will ask again: could it have been he said he had heard

that John was in Sydney? - No, I am sure he said that he heard from John from Sydney.

Did Janelle ever tell you she had heard from John from

Sydney?-- No, she didn't. Had she ever told you at any time since or up until now?-

Oh, she did, once. When was that?-- I don't know. I can't remember. You do remember her telling you that she had heard from

John in Sydney? - Only once that I do remember, but I cannot remember the conversation that we had."

Counsel for the appellant submitted that the conversation

deposed to by Miss Parker was most unlikely to have occurred,

and it does seem strange that, without apparent reason or

20

explanation, the appellant should have made a damning

admission to a younger girl who was not a particular friend

and then threatened her in an effort to cause her to keep what

he had said secret.

There is also the different version given by Miss Parker

at the earlier trial. It is possible that, as she said, she

initially did not take the appellant's statements seriously

and that it was only subsequently that she did so: perhaps

after it became known that the body was that of the deceased,

although she was not asked, and did not give evidence to that

effect. Further, that was a considerable time before Ms.

Parker came forward with her evidence, probably somewhere

between 1 and 2 years. It is perhaps possible that she only

decided to reveal what she had been told after the appellant

was committed for trial. However, at the earlier trial, she

had accepted that she could have been confused concerning

either what the appellant said or meant, and that seems more

credible than her dogmatic assertion in the present proceeding

that she was neither mistaken nor confused. It is unlikely

that her recollection of a conversation which at the time she

thought was a joke would have improved with the passage of

time.

From its contents according to Ms. Clarke, the

appellant's conversation with her must have occurred after the

body of the deceased had been found and identified; that is to

say, after 24 November, 1990. Possibly it was considerably

later; Ms. Clarke made no mention of the appellant's

statements when she was interviewed by police in October,

1991. Indeed, she first mentioned the conversation in a

subsequent interview by police in January, 1993. Further,

there is a passage in her evidence which must, at least, be

mistaken, which seems to accept that her conversation with the

appellant took place mid-way through the year in which the

deceased was killed or even during the previous year.

There is also the consideration that, as in the

conversation with the appellant sworn to by Ms. Parker, it

seems curious that the appellant should have chosen Ms. Clarke

21

as the repository of his confidence. Ms. Clarke, like Ms.

Parker, initially thought that the appellant was joking, and

indeed might well have continued to do so for a considerable

time if her asserted belief that the appellant was joking was

the reason why she did not mention their conversation to

anyone until January this year.

Further, both conversations lack any detail except as to

the admission said to have been made. Ms. Clarke acknowledged

that her recollection was poor. As set out above, she agreed

that "it is really hard to think back and remember" and that

she had had personal difficulties which had affected her

health and, it seems, her memory, which she agreed was "hazy".

As earlier noted, the date of the deceased's death was

not precisely established but it was put within a period of

three months from the date of his disappearance on 28

November, 1989; that is, prior to the end of February 1990.

That being so, if Ms. Bingham's evidence be taken literally,

she claimed to have spoken to him after he was dead. Her

evidence was that she spoke to the appellant in 1990 after her

birthday in June and had spoken to the deceased "up to about

two months before" her conversation with the appellant; that

is, after the beginning of April 1990. However, this is an

artificial exercise no matter how superficially logical it may

seem. Time estimates such as those engaged in by Ms. Bingham

are notoriously imprecise, as is confirmed by the

uncertainties in Ms. Bingham's evidence. Nonetheless, this

proposition carries another difficulty for the prosecution.

If Ms. Bingham was out in her opinion concerning when she

spoke to the deceased, she may equally have been mistaken in

her view as to when she spoke to the appellant. It might have

been before her birthday in 1990 and, perhaps, before the end

of February that year when, according to the medical evidence,

the deceased might have been alive. Ms. Smerdon could do no

more than place the conversation with the appellant as

sometime in 1990; she could not "recall if it was the first or

the second half of the year".

It might be argued that, at the least, Ms. Bingham and

22

Ms. Smerdon corroborate each other's statements that they had

a conversation with the appellant at a "Blue Light Disco" at

Caboolture State High School. However, their versions are so

different as to suggest that one, or both, were inaccurate. It

was also pointed out for the appellant that their evidence

lacked credibility in that what they said occurred was

unlikely, especially their omission "... to ask the appellant

how Mr. Apps was, where he was, any of those things ...". It

is also somewhat implausible that, although she wanted the

appellant to give her the deceased's address for "Christine",

Ms. Bingham made no request for him to provide that

information when he received it, and did not even inquire of

the appellant as to the deceased's whereabouts.

Additionally, no reason emerged as to why the deceased

would have telephoned Ms. Bingham; there was no suggestion

that they were particularly close friends. For that matter, no

explanation appeared as to why the appellant would have

related a fictitious communication from the deceased to Ms.

Bingham and Ms. Smerdon, or why, if he did so, he did not also

tell other, perhaps closer, friends.

Finally, it is clear that none of the girls recollected

the exact words used by the appellant in their conversations.

Each was only reconstructing the particular conversation to

the best of her memory. Importantly, a small difference

between the words recollected and the words used could totally

alter the effect. Thus, for example, Ms. Bingham and Ms.

Smerdon gave evidence that the appellant had said that he had

been called by the deceased who was "going to send up the

address " (Ms. Bingham), or "was down in New South Wales" (Ms.

Smerdon). There is very little difference in the words used,

but a huge difference in meaning, if the appellant said not

that he had heard from the deceased that he was "down in New

South Wales" but that he had heard from an unspecified sources

that the deceased was "down in New South Wales."

The testimony of each of the four witnesses is

undoubtedly susceptible of substantial criticism, and no

witness's evidence, taken in isolation, could possibly justify

23

the conviction of the appellant. The question remains whether

the four strands, taken together, are collectively strong

enough to support the conviction. In my opinion, they are

not.

In view of the different conclusion arrived at by

Pincus and Davies JJA., I should briefly state my

understanding of this Court's function.

In their dissenting judgment in Knight v. R. (1992) 175

CLR 495, Brennan and Gaudron JJ. spoke at p. 511 of "(t)he

deference which is due to a jury's verdict, both by reason of

the jury's presence at the trial and by reason of its function

as the constitutional arbiter of the facts ...". So much may

be unhesitatingly accepted, although there are other

fundamental principles also to be kept in mind, including the

presumption of an accused's innocence and his/her entitlement

to an acquittal unless the prosecution case is proved beyond

reasonable doubt. It is the interaction of these principles

which gives rise to the undoubted duty of an appellate court

to set aside a jury verdict if convinced that it is unsafe and

unsatisfactory.

In Knight, Brennan and Gaudron JJ. went on to say,

following the passage quoted above, that an appellate court is

precluded "... from simply substituting its view of the

evidence for the view formed by the jury under proper

direction. It is only when an appellate court, giving the

verdict appropriate deference, concludes that it was not open

to the jury to convict that it is right to set aside a verdict

of guilty."

In the same case, Mason CJ., Dawson and Toohey JJ. said

at p. 503:

"The question which arose in the Full Court and which arises in this appeal is whether the verdict of the jury on the second count was unsafe and unsatisfactory. ... In considering that question, the Full Court were required to make their own assessment of the evidence, within the limits imposed by the fact that they neither saw nor heard the witnesses. They were required to act upon that view of the facts which the jury were entitled to take having seen and heard the witnesses."

24

Earlier, at p. 502, their Honours had said that "(t)he

question is ... whether the jury, acting reasonably, must have

entertained a reasonable doubt about the guilt of the

appellant."

As I understand these principles, an appellate court is

required to make its own assessment of the evidence within the

limits imposed by the fact that it has neither seen nor heard

the witnesses. It is not enough that the court, on a review

of the record, holds a reasonable doubt about the guilt of the

appellant because, for example, it doubts the veracity and

accuracy of evidence given by witnesses for the prosecution.

Such a conclusion, if arrived at, is only a step in the

reasoning process. The real question for the appellate court

is whether a reasonable jury, acting reasonably, must have

entertained a reasonable doubt about the guilt of the

appellant because, for example, the prosecution evidence

should have left a reasonable jury, acting reasonably, with a

reasonable doubt as to the veracity and accuracy of the

evidence, no matter how much it might have been impressed by

the witnesses or their demeanour.

It would substantially erode an appellate court's duty if

the requirement that it give "deference" to the jury's role

and advantages obliged it merely to say that the jury might

have been impressed by a witness and his/her demeanour. The

appellate court must itself look at the evidence given and

must assess for itself, making all due assumptions in favour

of the advantages enjoyed by the jury and the correctness of

its verdict, whether a reasonable jury, acting reasonably,

could have relied upon the evidence in the case as a basis for

its verdict.

With some deference, both because I am conscious that a

jury verdict should not lightly be interfered with and because

Pincus and Davies JJA. have arrived at a different conclusion,

I am satisfied in this case that a reasonable jury, acting

reasonably, should not have been sufficiently persuaded by the

evidence of the four witnesses, with all its imperfections,

including the passage of time, that the appellant was guilty

25

beyond reasonable doubt.

Accordingly, I would allow the appeal and set aside the

conviction and sentence. There is no purpose to be served by

a further trial and a verdict of acquittal should be entered.

IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND C.A. No. 292 of 1993. Brisbane Before The President Pincus J.A. Davies J.A. [R v. Griffiths] T H E Q U E E N v. SHANE PAUL GRIFFITHS JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND DAVIES J.A. Judgment delivered 20 December 1993 This is an appeal against a conviction of manslaughter

and an application for leave to appeal against sentence. The

appellant and the deceased, John Lachlan Apps, were close

friends and fellow students at Caboolture High School. Late

in November 1989, at a time when school activities were

winding down, Apps disappeared. He had been living with his

father at a place called the Log Cabin Caravan Park. His

father gave evidence that on a Tuesday - the father could not

fix the date - when young Apps was supposed to go to school,

the boy did not come home in the evening and the father never

saw him again. From the fact that there was present in the

caravan a note the father had written, by way of excuse for

the boy not having attended school on the previous day,

Monday, it may be deduced that he did not go to school on the

27

Tuesday. The father became increasingly alarmed as time went

by and his son did not turn up. The father noticed that his

son's bicycle was missing, as was his knapsack.

The father reported his son as having been missing on the

Thursday of the same week and tried to conduct his own

investigations as to what might have happened to him,

including passing photos of him around the area. The boy's

mother - the two were living apart - came to give assistance.

Somewhat curiously, despite the close friendship between the

appellant and the missing boy, there was, according to the

father, no conversation between the father and the appellant

about John Apps' whereabouts.

The date of the disappearance cannot be certainly fixed.

John Apps sat for a mathematics examination in the week 20-24

November. His building society statement shows that he used

to withdraw amounts of cash fairly often; for example, in

October 1989 eight cash withdrawals are recorded. In

November, four cash withdrawals are recorded, the last being

on 18 November 1989, that leaving a balance of one dollar in

the account. It seems likely that the Tuesday of which his

father spoke was Tuesday 28 November 1989 - but the precise

date is not of great significance.

About a year after the boy's disappearance, his remains

were found at a place described as Little Barrs Hill in the

Glasshouse Mountains area. There was a bullet hole found in

28

the skull just to the right of the midline of the skull, low

down near the junction with the neck. The bullet was still in

the skull; it had hit the front of the skull just to the

right of the midline without going through. The bullet was

thought to be of .22 calibre, but it had deteriorated to such

an extent that one could not tell what make of bullet it was,

nor see any rifling marks. That, presumably, made it

impossible to say whether the bullet was fired from a rifle

which had been owned by the father of the deceased boy. The

father gave evidence that he had had a .22 rifle in the

caravan, which was missing; he did not notice its

disappearance until some time after the death. Although the

area in which the remains were found was searched by many

people for days, no rifle was located. The deceased was

identified by dental evidence. There were found in the

vicinity a bicycle identified as his and a backpack which was

damaged; it contained some Poppers and a knife which was

described as a fishing knife.

One of the appellant's friends, Jason Fischer, who was,

it appears, regarded by the trial judge as a reluctant

witness, said that the last time he saw John Apps was at a

park at Glasshouse, when John Apps said that he was running

away to his aunty's place on the next day or the day after.

Fischer also said that he thought that one or other of the

appellant and Apps said that they were "going to go fishing"

before John ran away. Fischer added that :

"John had always wanted to climb that mountain up near Ngungun mountain. I'm not sure whether they

29

did or not." On the evidence so far mentioned, an inference open to

the jury was that on the Tuesday the deceased's father last

saw his son, the boy, with his bike and rucksack, went on an

expedition in the nearby bush with provisions for the day and

with his father's rifle; and that a companion shot him in the

back of the head with the rifle.

There was evidence which, if accepted, proved that the

person who shot the deceased was the appellant, but before

coming to that, the overall probability of the accusation

might be considered. On the one hand, as Mr Herbert QC

emphasised, for the appellant, there was evidence that the

deceased and his alleged killer were best friends and that on

the last occasion the witness Fischer saw them there was

discussion of the two boys going fishing. More generally, the

tenor of the evidence is that the two associated closely

together, so that there was no improbability about the

deceased and the appellant, at the end of the school year,

going together for a day in the bush. What does seem

improbable - although by no means impossible - is that a boy

would deliberately, as opposed to accidentally, kill one who

had been a close friend; but the charge and conviction were

of manslaughter, not murder.

Two girls who had been fellow students of the deceased

and of the appellant at Caboolture High School gave evidence

30

to the effect that the appellant said that he shot or that he

killed John Apps. There was also other evidence of

conversations with the appellant suggestive of guilty

knowledge on the appellant's part; but the latter category of

evidence cannot possibly, by itself, support the conviction.

The critical question is whether the jury could reasonably

have accepted the evidence of the two girls who said that the

appellant admitted, indeed asserted, that he had killed John

Apps. That evidence was not contradicted.

There were significant defects in the evidence of the two

girls and they are discussed below, but it is convenient at

the outset to remind oneself of the task which the Court is

set in a case of this kind.

In Whitehorn (1983) 152 C.L.R. 657, Dawson J., at p. 687

referred to a view expressed in Ratten v. The Queen (1974) 131

C.L.R. at 516, that if the appeal court has a doubt as to

guilt "a reasonable jury should be of a like mind". Dawson J.

said that :

"...it does not appear to me to be circumlocution to speak in terms of a doubt which ought to have been entertained by any reasonable jury rather than in terms of a doubt which the court has."

His Honour went on to discuss "important differences" between

the functions of a jury and those of a Court of Appeal .

"A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot. A court of appeal is concerned to maintain the standards required by the law in the conduct of trials, including a standard of proof...No doubt when an appeal court is required to embark upon questions of fact there is a coincidence of

31

function between it and a jury...But the coincidence is far from complete, for the functions of a jury extend beyond those which an appeal court is required to exercise or is capable of exercising. Far-reaching as the ground of appeal relied upon is, it 'is not intended to substitute for trial by twelve jurymen who have seen and heard the witnesses trial by three Judges who have not': Reg. v. Cable (1947) S.R.(N.S.W.) 183, at p. 185.

It is far from inconceivable that a court of appeal

may, upon the material before it and without regard to the verdict of the jury, entertain the possibility of a doubt itself but may properly conclude that the jury might reasonably have reached a verdict of guilty upon the evidence given at the trial. Where a result may have turned wholly or largely upon questions of credibility or upon competing inferences such may well be the case. It is, I think, for this reason that the observation has been made that the power to set aside verdicts which are against the weight of the evidence is to be exercised with caution and discrimination. See Raspor v. The Queen (1958) 99 C.L.R., at p. 352. Such an observation would be largely meaningless if the question were merely whether the appellate court itself experienced a doubt." (687-688).

As was pointed out by Brennan and Gaudron JJ, in Knight

(1992) 66 A.L.J.R. 860 at 866, Gibbs C.J. and Brennan J.

agreed in their reasons in Whitehorn with what Dawson J. said,

in relevant respects: 660. In Knight Brennan and Gaudron JJ.

referred to :

"The deference which is due to a jury's verdict, both by reason of the jury's presence at the trial and by reason of its function as the constitutional arbiter of the facts..." (867)

It commonly occurs that this Court is invited to set

aside a jury's verdict on the "unsafe and unsatisfactory"

ground, and commonly the basis of that attack is in the same

category as in the present case: that evidence which was

undoubtedly incriminating should not have been accepted,

32

because of contradictions within it, expressions of

uncertainty and matters of that sort. In our respectful

opinion this Court should be slow to accept submissions of

that kind, unless it is reasonably clear that the verdict had

no rational basis. Evidence which is unimpressive in print

may produce quite a different impact when delivered orally in

the atmosphere of the trial as a whole. One may be pardoned

the observation that the notion that the young girls whose

evidence brought about the appellant's conviction in this case

were unworthy of credit is inconsistent with a view expressed

by the trial judge immediately prior to his remarks on

sentence. This Court is not bound by his Honour's opinion,

but the fact that the trial judge described the four girls as

witnesses who "quite courageously told the truth" is a

pertinent example of the validity of the propositions referred

to by Dawson J. in Whitehorn, and raises the possibility that

an observer of this four day trial might have received

impressions distinctly different from those of a reader of the

record.

The more relevant parts of the evidence of the two

critical witnesses, Leanne Clack and Jodie Parker, are set out

at length in the reasons of the President. Miss Clack said

that she had been the appellant's girlfriend and was still

friendly with him in the year in which John Apps went missing.

Nothing was put to that witness to suggest that she had any

reason to lie about the matter and, as it seems to us, if her

evidence that the appellant said that he shot or that he

33

killed John Apps was incorrect, that is unlikely to be due to

faulty recollection. This conversation, if it occurred, would

surely be one whose substance would be well remembered. The

principal reasons against accepting Leanne Clack's evidence

were two. First, she was unable satisfactorily to fix the

date on which the conversation occurred. She related it to an

incident involving her brother; she said she was outside a

doctor's surgery in Caboolture waiting for her brother, who

was attending the doctor. An attempt was made by the

prosecution to call evidence from the doctor as to the date of

the consultation, but that was rejected on the ground that it

went only to the witness's credit. A second reason for

rejecting Miss Clack's evidence was that she did not tell the

police about the conversation with the appellant until January

1993; when she was first interviewed by the police about John

Apps' disappearance, in October 1991, her statement was quite

inconsistent with the evidence she gave in court.

Of these two obstacles, the second is the more weighty.

Confusion about the date does not seem to us at all

surprising; if the conversation occurred, it was obviously

after John Apps disappearance and that is all that matters.

But the inconsistency in the statement to the police - first

denying any relevant conversation with the appellant and later

saying that the appellant told Miss Clack that he had killed

John Apps - was a matter which should have concerned the jury.

If they were prepared to accept Miss Clack's evidence, that

could only have been on the basis that when first questioned

34

she did not wish to say anything adverse to the appellant's

interests.

The other witness in this category, Jodie Parker, also

was rightly subjected to criticism on the ground that she

revealed her story very late. She said in effect that she did

not disclose that the appellant had told her that he had

killed the "body up in the mountains", which was that of John

Apps, until she heard that the appellant had been "put up on

trial". Also, Miss Parker said at the first trial, when asked

whether she could have misunderstood the appellant, "Yes, I

could have. It's possible". She explained that by saying

"The questions that you kept asking were all twisted around.".

Again, it appears to us improbable that if this witness's

evidence is in substance untrue, that is due to faulty

recollection. Further, it must have seemed to the jury

unlikely that the appellant could be so unlucky as to have two

girls, one of whom had been his girlfriend, both mistakenly

think that he admitted killing Apps. In our opinion, the real

question as regards these two witnesses, might well have

seemed to the jury to be whether they were telling deliberate

untruths.

The other two girls gave evidence of lesser importance,

which, as we have said, was not of itself enough to convict.

Janelle Bingham said that one evening at the school - "it

would have been 1990" - the appellant said that John had

35

phoned him. Her evidence was gravely weakened, in our

opinion, by her claiming to recollect that she herself

received a phone call from John Apps after he disappeared; it

seems evident that he was killed about the time of his

disappearance. The evidence of Shandelle Smerdon, on the

same subject, should in our view have been regarded by the

jury as of little weight.

Two other categories of evidence should be mentioned.

Natasha Davidson gave evidence which provided some very

general support to Jodie Parker's. Miss Davidson spoke of

having observed contact between Jodie Parker and the appellant

which apparently included some conversation and after which

Jodie Parker's manner altered. Miss Davidson's evidence,

although it did not correspond in detail with that of Jodie

Parker was, in our opinion, enough to assist the jury to be

satisfied that there was a conversation between Jodie Parker

and the appellant on the occasion Jodie Parker mentioned. But

that did not take the Crown far; Miss Davidson did not claim

to know what the conversation was about and the apparent

change in Miss Parker's manner could have been due to any

circumstance.

There was evidence of three police interviews with the

appellant, two of which were audio taped and the last video

taped; all occurred on 28 November 1990. It appears from the

summing-up that the Crown submitted to the jury that the

appellant had told lies to the police, but that the Crown did

36

not contend that the appellant could be found guilty on that

basis. The judge gave the jury directions about the relevance

of untruths said to have been told by an accused person; no

complaint is made of the content of those directions.

There are what seem to us to be odd contradictions within

the appellant's discussions with the police. The appellant

initially said that he had gone fishing with Apps on a Sunday,

but Apps came to school on the Monday or Tuesday and that this

was the last time the appellant saw him. He also said that

Apps told him (the appellant) that Apps was going to run away,

but did not say where to. In a subsequent interview on the

same day, the appellant said that Apps had told him he was

heading south to New South Wales to his mother's or somewhere

there. In the third interview, the appellant told the police

that if Apps had a fight with his parents he would run away to

his cubbyhouse near the Caboolture River in Caboolture. The

appellant said that he did not know where Apps was at the time

of the interview, but that Apps was most probably at

Caboolture in his cubbyhouse.

Having told the police initially that he last saw the

appellant at school, he subsequently said that he last saw him

on a fishing trip on a Sunday after the two had finished

school. He then said that he last saw the appellant on the

Monday at the caravan park, the two having spent the day

together. Another version, in the next interview, was that he

last saw Apps on the Tuesday or Wednesday coming out of the

37

Apps caravan with his backpack on his back. At that time,

according to the appellant, he was on the bus going to school;

the appellant subsequently amended that to say that the

appellant was going to Caboolture skateboarding and that Apps

was also supposed to go skating; the bus driver would not

stop for Apps. In the last interview, the appellant said that

he had arranged to meet Apps on the bus on the Tuesday morning

and that when he did not see him waiting for the bus the

appellant assumed he had gone to Caboolture. That is quite

inconsistent with both previous versions.

In the second interview the appellant told the police

that Apps used to go shooting with his father or uncle outside

Caboolture. In the last interview, the appellant said that

Apps used to go shooting with someone from Caboolture school,

but the appellant did not know who it was.

It appears to be important to notice that the appellant

was the only friend of Apps identified in the evidence as

having gone with him on any expedition of the kind mentioned

in the interviews. One would expect the jury to have been

puzzled by the conflicts within the accounts given by the

appellant to the police, and to be particularly interested, in

view of the fact that a backpack was found near the remains,

in the appellant's having said, in the second interview,

inconsistently with what he said in the first, that he last

saw Apps coming out of his caravan with a backpack on his

back. It would, however, be surprising if the jury regarded

38

matters of that kind as anything other than some modest

support for the Crown contention.

Because of the discrepancies we have mentioned, the

appellant's conversations with the police were not very

satisfactory from the point of view of the defence. But there

was nothing in them capable of curing the Crown case if it

was, as the appellant's counsel contended, fatally deficient.

One thing which clearly emerged from the interviews with the

police was that the two boys were very close; they went

fishing together often. Counsel for the appellant concluded

that the jury could reasonably conclude that the appellant and

Apps were together "on the relevant day".

In the end, the question is whether or not the jury were

entitled to accept the Crown evidence that the appellant had

told Miss Clack and Miss Parker that he killed John Apps. But

they were obliged to consider that against the background of

evidence suggesting that, if a companion did the shooting, it

was by no means improbable that that companion was the

appellant. No-one, other than the appellant, was identified

in the evidence as being likely to be out with John Apps on

such an expedition. On the week-end immediately preceding

John Apps' disappearance the two had spent a day together

fishing.

We are of opinion that the evidence of Miss Clack and

Miss Parker that the appellant said he killed John Apps was

39

capable of acceptance, to the requisite standard, by a

rational jury. Our principal reasons for thinking that are

three. First, the evidence may well have appeared to be quite

convincing as given, despite discrepancies in it discussed

above and those discussed in the reasons of the President.

Secondly, the discrepancies were mostly of such a kind as to

suggest faulty recollection; but it must have seemed to the

jury that, if the two girls were not telling the truth, the

untruths were deliberate and not simply due to mistake.

Thirdly, no motive or other explanation was able to be put

forward to account for the two girls, either independently or

putting their heads together, inventing the story that the

appellant admitted killing John Apps.

A subsidiary point taken by Mr Herbert QC was that, as he

contended, the judge should have left a defence of accident to

the jury. The necessity of considering that defence arose, so

it was submitted, because Miss Clack gave evidence that when

the appellant told her that he shot or that he killed Apps he

said "It was an accident. I didn't mean to do it.". In Miss

Parker's account of the conversation with her in which the

appellant said that he killed Apps, there was no mention of

accident. The trial judge declined to put the defence of

accident to the jury as there was no evidence of facts making

a defence applicable; his Honour pointed out that the word

"accident" is used loosely in ordinary speech. His Honour

also said that he wondered how the jury could sensibly analyse

the applicability of the defence in the case before him.

40

There was evidence before the jury on which it could be

concluded that the appellant shot Apps without meaning to do

so. Section 23, which establishes the defence of accident,

commences "Subject to the express provisions of this Code

relating to negligent acts and omissions..."; those

provisions are found in Ch.XXVII: see in particular s. 289.

The jury was satisfied that Apps was killed by the appellant

and may well have thought that he did not mean to do so; but

there was no possible path, logically, to a positive

conclusion either that the circumstances were such as to

exonerate the appellant, on the basis of accident or that they

were not of that character.

The question is whether a bald statement that a death by

shooting was an accident is enough to throw on the Crown the

burden of excluding s. 23. Since there was no possible means

of telling how the bullet came to be discharged, it is

impossible to see how the Crown could have discharged such an

onus and, if the jury took a direction placing the onus as to

accident on the Crown seriously, the result must have been an

acquittal. Putting the matter generally, where there is an

apparently motiveless death by shooting, with no evidence as

to the circumstances in which the shooting came to occur, the

question is whether it is enough, in order to raise the

defence of accident, for the person who fired the shot to say

out of court "the shooting was an accident". In our opinion,

the mere assertion does not go far enough to require the

41

defence to be put to the jury. A mere broad statement that a

Code defence applies does not, in general, provide evidence to

support it. As was pointed out during the course of the

hearing, the statement relied on did not even go as far as

that, for the popular meaning of "accident" differs from the

legal meaning.

In our opinion the appeal against conviction should be

dismissed.

There was also, as has been mentioned, an application for

leave to appeal against sentence. The judge imposed a

sentence of five years, recommending that the appellant be

eligible for parole after having served 18 months. In

summary, the principal points made by the judge in his

sentencing remarks were as follows. His Honour said that he

was left to speculate as to how the killing occurred, but he

would proceed on the basis that it was the result of negligent

handling of the rifle. His Honour inferred that the appellant

had left Apps either dying or near death, and described that

as callous. He also mentioned that the appellant had

deliberately "sought to create a smokescreen" by contending

that Apps was alive and living in New South Wales. His Honour

thought that the appellant had deliberately attempted to

disguise his own responsibility.

Although the reasons given by the sentencing judge were

criticised, it appears to us that his Honour's view of the

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case was, at least in substance, one which was reasonably open

to him. Nor does there appear to us to be any good ground for

contending that the sentence imposed on that basis was outside

the range which could be thought consonant with the exercise

of a sound discretion.

In our opinion the appeal should be dismissed and the application for leave to appeal against sentence refused.