Buchwald v R

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0829
JULIAN MATHIAS BUCHWALD	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NEAVE, REDLICH and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 August 2011
DATE OF JUDGMENT:	20 December 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 445
JUDGMENT APPEALED FROM:	R v Buchwald (Unreported, County Court of Victoria, Judge Smallwood, 18 September and 21 October 2009)

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CRIMINAL LAW – Conviction – Kidnapping – Whether directions impermissibly expanded Crown case – Whether judge impermissibly intervened in trial process by questioning accused – Whether directions about confessions adequate – Whether breach of rule in Browne v Dunn – Whether rule applies where witness has not given evidence inconsistent with cross examiner’s instructions – Truth of confessions – Explanation of detail in confessions – Inadequate directions as to permissible pathway of reasoning where breach of rule – Directions leaving recent invention to jury not justified in circumstances – No substantial miscarriage of justice – Overwhelming prosecution case – Proviso – Leave refused.

CRIMINAL LAW – Sentence – Seven years and six months’ imprisonment for kidnapping – Six months’ imprisonment for false report – Total effective sentence of seven years and nine months’ imprisonment with non-parole period of five years and three months – Subsequent six month sentence for failure to answer bail wholly cumulated – No remorse – All individual sentences, orders for cumulation, total effective sentence and non-parole period within range – No double punishment – Evidence as to protective custody – No basis to reopen sentencing discretion – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr I D Hill QC with Mr T Kassimatis	Valos Black & Associates
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NEAVE JA:

I have had the advantage of reading the draft reasons of Hansen JA. I agree with his Honour, for the reasons he gives, that leave to appeal against conviction and sentence should be refused.

REDLICH JA

I have had the benefit of reading in draft the reasons of Hansen JA and agree that the applications for leave to appeal against conviction and sentence should be refused. I would add only these observations.

Ground 2

Complaint is made under cover of this ground that the trial judge impermissibly intervened in the trial process by cross-examining the applicant in a manner adverse to him and by giving an unbalanced and less than impartial charge to the jury.

Following the applicant’s cross-examination and after his counsel had announced that he had no re-examination, his Honour stated that he wished to ‘clarify a couple of things’. Hansen JA has set out the passages that were the subject of complaint. The trial judge did phrase most of his questions so as to indicate that he was seeking an explanation. The applicant submitted that on proper analysis, little of the questioning could have been for the purpose of clarification as the applicant had already made his position clear in relation to most of those matters. The gravamen of the complaint is that the questions were intended to demonstrate the implausibility of the applicant’s account and establish points in the Crown’s favour. It was said that his Honour would thus have been perceived as aligning himself with the Crown.[1]
[1]R v Mawson [1967] VR 205; R v Esposito (1998) 45 NSWLR 442.

A trial judge has a very broad discretion as to when to ‘descend into the

arena’.[2] The judge may do so to clarify questions or answers. Within reason and showing appropriate circumspection the trial judge may identify matters that may be of concern to the judge. While it may have been better had the trial judge refrained from questioning the applicant about matters that did not really call for elucidation, lest the jury think that his Honour was sceptical of the applicant’s account, it could not be said that the questioning was of such a nature as to create any real risk that the trial was unfair.[3] If counsel had considered that the trial judge went too far, the discharge of his responsibilities required him to raise his concerns with the trial judge. Counsel did not do so. It is significant that trial counsel, immersed in the atmosphere of the trial, did not at the time regard this questioning as inappropriate.

[2]Yuill v Yuill [1945] P 15, 20 (Lord Greene).

[3]Galea v Galea (1990) 19 NSWLR 263, 281 (Kirby A-CJ).

As to the complaint that the charge was unbalanced, there were occasions when his Honour commented upon matters in a manner unfavourable to the applicant. His Honour was entitled to do so provided he made plain, as he did, that it was a comment. I do not consider that his Honour went beyond that which was permissible.

Ground 2A – Browne v Dunn

In the passage of the directions set out in the reasons of Hansen JA, his Honour instructed the jury to the effect that the victim should have been asked by defence counsel whether she had given the applicant the detailed information about her kidnapping that was contained in his answers to questions in his record of interview. That instruction was wrong in principle as I do not consider that defence counsel was under any obligation to do as his Honour suggested.

The trial was conducted on the assumption that the rule in Browne v Dunn required defence counsel to pursue, in cross examination, the content of the victim’s discussions with the applicant about the circumstances in which she was kidnapped. On appeal the assumption was maintained that the failure to put the detail of the applicant’s confession to the victim constituted a breach of the rule.

In a case where there is a dispute whether a confession or admission has been made, the prosecution may adduce evidence that facts contained within the confession or admission were unknown by the investigators and therefore must have come from the accused.[4] Similarly, where the issue is whether a confession by an accused that he committed the crime is true, the prosecution may adduce evidence that the confession contains details concerning the crime which could only have been known by the accused if he had committed the crime.
[4] See, for example, R v Kerr (No 2) [1951] VLR 239; R v Burns (1975) 132 CLR 258; R v Matusevich (1977) 137 CLR 633; Sumner v The Queen (2010) 205 A Crim R 325.

The applicant’s confessions were video recorded. As the making of the confession could not be challenged, the prosecution must have known by the time the victim gave evidence that the applicant’s defence included a denial that he had made a truthful confession. The prosecution would thus have been entitled to ask the victim during her evidence in chief, whether she had given the applicant the detail of various things about her abduction which the applicant had referred to in his confessions. As it was, the victim had given evidence that she had discussed aspects of her abduction with the applicant but she was not asked by either party to state more precisely what detail she had provided. Whether either party would seek to elicit evidence from the victim of the detail of her discussions with the applicant was a forensic decision. As the prosecutor had not asked her, he could have sought to recall her following the applicant’s evidence if he was able to persuade the trial judge that he could not have anticipated the defence explanation for the detail in the applicant’s confessions.

Defence counsel was under no obligation to raise these matters with the victim. She had given no evidence which was inconsistent with the evidence to be adduced from the applicant, nor was her conduct to be in any way impugned so that she should be given some opportunity to respond to such an attack.[5] Neither could it be assumed that if she had been asked whether she gave the applicant the detail contained in his interview, that she would necessarily have said anything inconsistent with the applicant’s explanation for the presence of that detail in his confession.
[5] Rees v Bailey Aluminium Products Pty Ltd (2008) 21 VR 478.

Where later evidence is to be given of a fact which is not inconsistent with the evidence already given by the witness, the rule in Browne v Dunn does not require the cross examiner to explore that question of fact with the witness because the witness might be able to confirm or deny that later evidence. It would be contrary to the Crown’s burden of proof to place the obligation upon the cross examiner to have explored the truthfulness of the confession with the witness.

As the evidence which the applicant was to give was not in any way inconsistent with the account which the victim had given, there was no element of fairness to the victim or the prosecution that dictated that the cross examiner should have questioned the witness as to what she may have told the applicant. Neither the prosecutor nor the trial judge should have suggested that defence counsel was under an obligation to explore the detail of the applicant’s confession with the victim. Both parties had the right to do so in order to strengthen their respective positions on the issue of the truthfulness of the confession. Theirs was a forensic decision; there was no breach of the rule as no obligation rested upon defence counsel to explore with the victim the detail contained in the applicant’s confession.

Assuming there to have been a breach of the rule, the applicant identified a number of complaints of substance arising from the manner in which this issue was dealt with. First, the prosecutor’s cross-examination as to defence counsel’s failure to cross examine various witnesses on certain matters did not exhibit the caution and circumspection which is required of a prosecutor in the context of a criminal trial.[6]
[6]See R v Thompson (2008) 21 VR 135, 157 [113].

Secondly, the trial judge engaged in the same line of questioning of the applicant. That questioning took on particular significance as the jury asked for a passage of his Honour’s questions to be re-read to them during their deliberations and very shortly before they returned a verdict of guilty.

Thirdly, as Hansen JA states, the trial judge’s directions concerning defence counsel’s alleged breach of the rule in Browne v Dunn[7] went beyond that which is permissible. The primary criticism was that his Honour left to the jury as a possible explanation for the failure to put these matters, that they had been made up or recently invented by the applicant. This is yet another example of a direction that has ignored the observations of the High Court that a breach of the rule should not be given prominence in a criminal trial.[8] This court has repeatedly emphasised that a trial judge should not invite a jury to draw adverse inferences as to the credibility of the accused where there has been a failure to comply with the rule.[9] It will seldom be appropriate for a trial judge to go so far.[10]
[7](1893) 6 R 67.
[8]MWI v R (2005) 222 ALR 436, 440-1 [18] (Gleeson CJ and Heydon J), 448-9 ([40]-[41] (Gummow, Kirby and Callinan JJ).
[9]R v Thompson (2008) 21 VR 135, 159 [120]; R v Rajakaruna (No 2) (2006) 15 VR 592, 608 [52]–[53]; R v Morrow (2009) 26 VR 526, 528 [6] (Nettle JA), 544-5 [65]–[70] (Redlich JA).
[10]See also R v Birks (1990) 19 NSWLR 677, 690-1 (Gleeson CJ); R v Foley (2000) 1 Qd R 290, 291.

As Hansen JA has shown, defence counsel failed to comply with the rule when dealing with other matters. Had the trial judge chosen to refer to such matters, it would have been appropriate for the trial judge to draw to the jury’s attention, without any need to explain the rule, that they did not have the benefit of the relevant witness’s evidence on a particular issue. But neither the prosecutor nor the judge should have hinted at, much less made any express suggestion, that the jury could therefore infer that the applicant’s evidence on that issue was recently invented or ‘made up’.

Fourthly, where a judge determines that the case justifies the extreme course of instructing the jury that the failure to put matters could support a conclusion that the accused had recently invented his evidence, a direction is necessary reminding the jury that such a process of reasoning is inferential so that the jury understand that they must exclude any reasonable innocent explanation before they could draw an adverse inference as to the applicant’s credibility.[11] Here, that direction would have required the trial judge to remind the jury of the explanation given by defence counsel in closing.
[11]R v Morrow (2009) 26 VR 526, 545-6 [70].

Fifthly, his Honour emphasised to the jury that his direction involved no criticism of defence counsel. But if it did not, the only conclusion that could then be drawn from the direction which drew attention to the fact that there had been no such cross examination, was that the applicant had failed to inform his counsel of these pertinent matters.

Sixthly, defence counsel had pointed out in his closing address that the victim had acknowledged during her evidence that she had talked to the applicant about the circumstances in which she was kidnapped during the six days she and the applicant were together. He had submitted to the jury that there was therefore no need for him to further question the victim. Given that explanation, there was no basis upon which the jury could have reasoned that the applicant had not instructed his counsel that the detail contained in his interview had come from the victim.

Seventhly, it was unhelpful for his Honour to have told the jury that his instruction on this subject was ‘part comment and part direction’. That would not have revealed to the jury what portions of his directions they were at liberty to disregard.

Notwithstanding these errors, I agree with Hansen JA that they do not lead to the conclusion that the conviction should be quashed. This is a case in which this court is well placed to make its own evaluation of the evidence and a determination of the applicant’s guilt. This was a truly overwhelming case. The applicant’s evidence was utterly implausible having regard to the cogency of the circumstantial

evidence.[12] I entirely concur with Hansen JA that there has been no substantial miscarriage of justice.

[12]See R v Ciantar (2006) 16 VR 26, 57-9 [107]–[112]; Weiss v The Queen (2005) 224 CLR 300, 317 [44]; Gassy v The Queen (2008) 236 CLR 293, 301 [18]; R v Berry & Wenitong (2007) 17 VR 153, 185 [105]; R v Rudd (2009) 23 VR 444, 462-3 [78]–[82].

HANSEN JA:

Introduction

Following a trial in the County Court, Julian Mathias Buchwald (‘the applicant’) was convicted of one charge of kidnapping[13] (count 1) and one charge of making a false report to police[14] (count 2). Following the jury’s verdict,[15] the applicant’s bail was extended to facilitate the preparation of psychological reports for a pre-sentence hearing fixed for 17 September 2009. The applicant absconded and no psychological reports were obtained. On 18 September 2009 the applicant was sentenced, in absentia, to seven years and six months’ imprisonment on count 1, and six months’ imprisonment on count 2. The judge ordered that three months of the latter sentence be served cumulatively on the former, producing a total effective sentence of seven years and nine months’ imprisonment. A non-parole period of five years and three months was fixed.
[13]Maximum penalty 25 years’ imprisonment, Crimes Act 1958, s 320.
[14]Maximum penalty 12 months’ imprisonment, Summary Offences Act 1966, s 53.
[15]On 17 August 2009.

The applicant was subsequently arrested in Singapore and brought back to Australia. He had left Australia on a false passport intending to travel to his native Germany. But he was refused entry to India and sent back to Singapore. He pleaded guilty to the summary offence of failing to answer bail[16] and, on 21 October 2009, was sentenced by the same judge to six months’ imprisonment to be served cumulatively on the earlier sentence.

[16]Maximum penalty 12 months’ imprisonment, Bail Act 1977, s 30.

The applicant now seeks leave to appeal against his conviction and the sentences imposed.

I set out later the grounds of appeal in full. In essence, however, the applicant’s conviction grounds complain that:

(1)The judge’s directions (as to evidence that a third party may have assisted the applicant in the kidnapping) effectively undercut the defence case and improperly expanded the Crown case.
(2)The judge cross-examined the applicant to an impermissible extent, including as to non-puttage of his evidence to the victim.
(2A)The judge permitted the defence’s alleged failure to comply with the rule in Browne v Dunn[17] to assume an unwarranted importance in the trial. Further, the judge failed to instruct the jury as to the proper reasoning process they could adopt in relation to Browne v Dunn.
(3)The judge failed to properly direct the jury on the applicant’s admissions.

[17](1893) 6 R 67.

Counsel for the respondent submitted that none of the grounds were established, but that even if they were, the proviso ought be applied in view of what he described as an overwhelmingly strong Crown case.

For the reasons set out below, each application should be refused.

Given the scope of the matters raised, it is necessary to set out the background facts in detail.

Background

The offending occurred in March 2008, when the applicant was aged 22 and his then girlfriend Carolynne Watson (‘the victim’) was aged 17. The applicant and the victim knew each other through church and had been in a non-sexual relationship for about two years. They planned to marry, and the applicant was building a house on a rural block he had purchased with the intention that they would live there together. However, there was some friction as to when they would marry. The applicant wanted to marry as soon as the victim turned 18, whilst the victim wanted to focus on finishing her high school studies first. After speaking to their pastor, the couple had a break from the relationship for about one month. The relationship resumed but tension remained as to when they would marry.

In the week before the offending, the applicant had sought permission from the victim’s parents to take the victim on a picnic on his parents’ rural property.[18] The victim’s parents agreed. The picnic was to involve tree planting and a walk to some waterfalls.
[18]The property is owned by the applicant’s mother and step-father, but it is convenient to refer to it as his parents’ property.

The Crown alleged that while on their way to the picnic, the applicant kidnapped the victim and, later, falsely reported to the police that he too was a victim of unknown kidnappers. The Crown relied primarily on the applicant’s admissions to police in his record of interview, to the effect that on the day of the picnic, he disguised himself with a balaclava, grabbed the victim from his car, tied and blindfolded her, before putting her back in the car and driving some six hours to a remote location in the Alpine National Park. He then removed her from his car, cut off her clothes, cut off his own clothes, and then lay down near her, calling out to her and pretending that he too was a victim of kidnappers and had been tied up. He ultimately untied her and removed her blindfold. The victim and the applicant, both naked, spent the next week wandering around in the bush, before ultimately coming to a road where they were picked up by a farmer driving a utility, who took them to his farm, where the applicant called the victim’s father. A police officer collected the applicant and the victim and took them to the Buchan police station. The applicant told this officer that both of them had been kidnapped.

In addition to the applicant’s admissions, the Crown relied on evidence of the victim (although she never accused the applicant of being the kidnapper), and a body of circumstantial evidence, linking the applicant to the offending and tending to confirm that his admissions were true.

The defence case was that the admissions were false; in short, that the applicant made false confessions in an attempt to ‘buy his freedom’, after being threatened and offered inducements by various police officers. The applicant gave evidence to that effect, and stated further that, while on their way to the picnic, both he and the victim had been kidnapped.

The applicant’s initial version of events

As mentioned, after the applicant and the victim emerged from their week in the bush, they were taken to Buchan police station where they were interviewed separately. Each stated that they had both been kidnapped. That night, the applicant and the victim were given separate motel rooms. The following morning, the police asked them further questions. The applicant was interviewed further, and his interview was later reduced to a written statement which he signed. Throughout this period the applicant maintained that he was a victim.

Admissions in the field interview

That afternoon, the police took the victim and the applicant back to the bush location where the victim had been untied. They travelled in separate cars. The victim arrived at about 1.15pm. The applicant arrived at about 4.10pm. Within three minutes of arriving, the applicant was arrested. He persisted briefly with his claim that he was a victim, but then admitted that he had kidnapped the victim. At 4.29pm the police commenced a videotaped ‘field interview’, of one hour’s duration, where the applicant essentially showed the police around the bush location and helped them to locate various items connected to the offending.

To summarise, during the field interview the applicant:

·Retracted his initial statement that he had been kidnapped;
·Admitted that he staged the whole kidnapping because he wanted to spend more time with the victim;
·Admitted that he dug holes and buried the various items the police had already located, namely a cap, a backpack, clothes, ropes, and a letter[19] relating to the kidnapping. He said that he buried the items because he did not want the police to find them;
·Took the police to a hole, several hundred metres from where the victim was untied, and pointed out where he had buried the blanket used to cover the victim while in the car. The blanket was dug up during the interview;
·Agreed to help the police find his jeans, balaclava, jacket and gloves, which items he had mentioned to police before the field interview commenced. Initially, the applicant could not locate the items. They then went to a different location, and found a brown leather jacket under some rocks or a log. The applicant stated that he was wearing that jacket at the time of the kidnapping. He stated that no gloves would be found as he assumed they would have floated all the way down the creek. He later said that he might have buried the gloves;
·Admitted that he was the owner of a map found by a police officer in a hole in the course of the interview while on their way back to the place where the victim had been untied. He said there may also be a balaclava buried there, but it was not located. He admitted that he owned a pair of black shoes dug up in a nearby hole. He said he was wearing those shoes at the time of the kidnapping.
[19]This was a copy of what is referred to below as ‘the second note’.

Admissions in the record of interview

After the field interview, the applicant was taken back to Buchan police station, which was at least an hour’s drive away. He was formally cautioned before participating in a tape recorded interview with Detective Senior Constable Ivon Lisa Lowrencev (the informant) and Detective Senior Constable Grant Vincent Condon. The interview commenced at 8.04pm and concluded at 11.01pm. There were three breaks (including a meal break) and a total of nearly 700 questions. The applicant made extensive admissions as follows.

The applicant said that he was frustrated that he and the victim did not see each other often enough. He wanted to spend more time with her. He decided to kidnap her and take her to bushland that was sufficiently remote that they would be together for several days rather than just a few hours.

About a week before the kidnapping, he used his home computer to type a note to the victim’s father, Mr Watson. The context of the note was that, in early February 2008, Mr Watson had witnessed a car burning near his house and had reported this (unrelated) incident to police. The note said:

Christopher Watson
4get wat u 2 saw in th pines those days an tel ur wife th same thing. I ave m8s in high places who ave destroyed th info u gave to th bloody cops but if u go to em again I wil make ur life a bloody misery and fucking destroy u an ur family. u my enemy as christian. accidents can esily be arranged so u leave us alone an we leave u alone an we all ave a gr8 time.

The applicant said that he had nothing against Mr Watson, but wrote the note to ‘create worry’ and to ‘throw them off my trail’. When the detectives asked the applicant about the content of the note, he said that the note referred to Mr Watson having ‘seen something in the bush and reported it to the police, and to keep his mouth shut, otherwise he’d destroy his family’. The applicant said that he printed out the note, drove to the victim’s house in the middle of the night and left the note on the table on the porch. He stole the left shoe from every pair of shoes on the porch, some six or seven pairs, which he dumped in a bin in a park on the way home. He was not trying to make any statement by stealing the shoes, it was ‘just plain vandalism’. The following day, the victim was upset and phoned the applicant. She told him about some family problems, and he thought about confessing to having left the note on the porch, but felt he could not do so in the circumstances.

As to the picnic planned for 4 March 2008, the applicant told the detectives that he had planned a treasure hunt which would culminate with a picnic lunch at the waterfalls on his parents’ property. He described in detail that he hired a metal box, into which he placed a map, and that he had earlier made a carved wooden platter for the victim, which he intended to give to her as a gift. He said that he buried the metal box and the platter near the waterfalls. At about 8.00am on the day of the picnic, the applicant took a bundle of items down to the paddock on his parents’ property. These items included gloves, a balaclava, a jacket, a yellow blanket, ropes, duct tape, and ‘army-type’ pants. As to where the items came from, he had purchased the pants from Big W in Morwell in the last few weeks, but not specifically to use for the kidnapping. He did not wish to say where he bought the balaclava. The other items were already in his possession. After leaving the items in the paddock, he returned to the house and prepared sandwiches and other food for the picnic. At about 9.30am he left the property and drove his Nissan Patrol to the victim’s house to pick her up. They returned to his parents’ property, collected the mail at the front gate, and drove through the paddock. There were deer in the paddock, kept as farm animals. While driving through the paddock, he asked the victim ‘did you see the deer startle?’ and she said ‘no’. They then drove about one hundred metres further to where a deer skin was lying beside the track. The applicant told the victim to wait for him as he was going to see what it was and why it was there. We interpolate that, without any prompting from the detectives, the applicant volunteered that nothing had startled the deer, that he ‘made that up’, and further that he had placed the deer skin next to the road earlier that morning but pretended not to know what it was. Having got out of the car and gone to ‘investigate’, he changed (into the clothes he had earlier left in the paddock), then ran back to the car, approaching it from behind, opened the door, reached in and unbelted the victim, and pulled her out. She fought back a little but he held her down and tied her hands with cotton rope. He did not speak. He wrapped duct tape around her head, covering her eyes, then lifted her and placed her on the back seat floor of the car. He covered her with the yellow blanket and then drove away. He recounted the route taken, which involved turning right upon leaving the property, and taking roads where he would be less likely to be recognised, eventually getting onto four wheel drive tracks in the bush. In the course of the journey he stopped three or four times to check on the victim, lifting the blanket and making sure her hands were still tied and that she had enough air.

Upon reaching a creek in the Buchan Headwaters Wilderness area, the applicant stopped the car. He lifted the victim from the car and put her on her side on the ground. He drove the car about 20 metres further into the bush to hide it. He got out and took his shovel and knife from the boot of the car. He used the shovel to bury their personal belongings, including his backpack, her handbag, and his cap. The victim was 15 to 20 metres away. He then got her to stand up and walk about 30 metres further towards the creek. He then got her to sit down. He dug another hole near her. He then used his knife to cut off her clothes, namely a dress, a singlet, another top under the dress, a bra, two petticoats and underwear. She pleaded with him to stop. He also removed her shoes and socks. He then cut off his own clothes and buried ‘all the items together’. He then ‘pretend tied’ his own hands behind his back with rope.

He then lay down two metres from the victim, just for a few seconds, and pretended to wake up. At this point in the interview, and without any prompting, the applicant told the detectives that he had forgotten to mention that when he was driving into the bush, he had scratched his head on tree branches whilst trying to move some logs from the track. He had a fair bit of blood on his face, which he left there ‘as a pretence’. It was enough blood to make the victim say that he looked like he had come out of a Dracula movie. Returning to the narrative, after he called out to her, the victim initially did not recognise his voice and said ‘who’s asking?’ He called her name, and she then recognised him and said she was glad he was there. He asked her to untie his hands, but she could not. The applicant told the detectives that he had previously dropped the knife, shovel, sleeping bag, and peanut butter next to them. He asked the victim ‘where’s my knife’. He ultimately cut himself loose, although that was ‘for effect’ because he was only ‘pretend tied’ and could just as easily have escaped without cutting. He then carefully cut the victim’s ropes and blindfold loose. He said ‘let’s get out of here’ and they grabbed everything and ran away. They were naked.

The applicant then recounted the events of the following week in the bush. On the first night, they talked about what had happened. The victim said she thought it may have been the people who killed the deer, as the applicant had caught them in the act. He told her that maybe that was not the case. The following day, they continued walking upstream. At about 5pm the victim thought she heard voices and a small dog roaming around, which the applicant assumed was a wild dog. As the victim thought the dog belonged to the kidnappers, they went up into the hills rather than continuing to follow the creek. They talked again that night, indeed they ‘basically talked every night’. Nothing significant happened on the third day. On the fourth day, they spent half the day getting back down to the creek. They continued walking upstream. It was cold and started raining. The applicant thought they would die from the cold and exposure, so he asked her to marry him before they died. She refused, saying only that her parents would not approve. On the fifth day (Saturday), the applicant did not want to continue going upstream because he knew from his maps that it did not lead anywhere. They ultimately turned back and spent the next two days walking. On the sixth day (Sunday), by around midday they got near where the car was. The applicant told the victim to wait at the creek while he went to make sure everything was safe. It took him two hours to walk to the car. He unburied all the clothes, his backpack and her handbag. He took another two hours to walk back to the victim. When he returned, he told her that he had heard a dog bark. That was true, as he had heard a dog, which he assumed was a wild dog. He also told the victim that he had seen a red four wheel drive. That was false. The victim then put her clothes on,[20] and they walked back towards the car, and walked around it at a distance of about 100 metres. He thought the victim never saw the car. They ultimately found a track which they followed which took them out of the bush, where they were picked up by the farmer driving the utility.
[20]The victim said in evidence that she was able to sew together her clothes enough to wear them.

The applicant was then asked further questions to clarify particular matters. There were questions about exactly how many holes he had dug, their location, and what was buried there.

There was also a series of questions about a printed note found in one of the holes, which was a copy of a note that was screwed up and placed in a turpentine bottle, found by the applicant’s mother next to a gate on her property. This note, which will be referred to as the second note, stated:

Cristopher Watson
u bloody couldn’t leave us alone so ur son an girl went walkabout. U get karolin and Mathew[21] bac wen we finish our business in the area but only if u behave urself and don’t shit us around again. Tel everyone they ar on holiday, don’t u dare talk to th fucking cops again, and ull get ur kids bac. Shit us agin nd u never see them again cause we’ll fuck th girl to death nd burn er alive nd the bloody boy we’ll relly enjoy to tortur nd sacrifice to our god to pay back 100 x th hurts he did us wen we picked them up, this is ur last warning. Do wat we say and the kids come back in alive condition.
[21]Matthew was the victim’s younger brother.

In the interview, the applicant initially asked the detectives whether they were referring to the letter left on the victim’s porch. When told that it was another note, the applicant asked to see the note. He then agreed with the suggestion that he had put the note in a turpentine bottle and attached it to the gate at his parents’ property. But then he asked the detectives which gate. This prompted one of them to say ‘I’m not telling you you did this, I’m telling you what we found’. The applicant said ‘Yeah, I don’t know. So, pass on this … no comment.’ It was then put to the applicant that a duplicate of the second note was found in the hole near the creek. He again asked to see the note. Lowrencev left the room to get the note found in the hole, which was an exhibit in a plastic sleeve. It was shown to the applicant, at least in the sense that the applicant was asked to describe what Lowrencev was holding up, and the applicant described it in the interview as containing red printed text. As to whether he had seen it before, he said ‘Yes. I – I put this note into the hole.’ He also agreed that he produced the document. But it is apparent from the transcript that the detectives regarded these answers as equivocal, as the following exchange then occurred:
Condon:
Q:       Well, did you produce it or not?
A:       Ah …
Q:       It’s a – it’s a simple question.
A:       …
Lowrencev:
Q:       Is there something you need to tell us?
A:       No, look, I’ve got no comment. Yeah. I produced it, yes.
Q:       We don’t want to force you into saying something.
A:       Yes, I did.

The applicant then stated that he produced the note on his computer very early on the morning of the picnic. But he said he was not sure at which gate he had left the note. That prompted the following exchange:
Lowrencev:
Q:       And you produced that Tuesday morning?
A:       Yes. No – no comment. No comment on that.
Q:       Did somebody help you with this?
A:       No.
Q:       Did somebody else produce that document?
A:       No.
Q:       Did somebody else put the document on the gate at your property?
A:       No.

The applicant then reiterated that he buried a copy of the note in the hole, and that the copy was in his car from when he had printed it off the computer.

Moving to other matters, the applicant denied that he had asked the victim for sex during their week in the bush. He said that he merely proposed marriage to her twice, because he felt uncomfortable about them sleeping together under the sleeping bag. The applicant also said that he had not really planned the kidnapping in advance. He only decided to do it on the morning of the picnic.

The applicant was asked again whether he knew what was in the second note. He asked to see it to jog his memory. Condon said ‘no’, as he wanted the applicant to tell him. The applicant initially said that the note referred to he and the victim being kidnapped, but then said ‘no comment’. Condon then mentioned that in the applicant’s initial statements to police where he had stated that he was a victim, he referred to the kidnappers saying ‘Don’t try to fight, Matthew’. The applicant then volunteered that ‘in the letter, I referred to Carolynne and Matthew being kidnapped’. He did that ‘to take the attention off myself’. At this point (10.43pm), the interview was suspended. This was the third break.

After the interview resumed at 10.51pm, it was put to the applicant that a set of keys were found at the front gate of his parents’ property. The applicant said that he had left the keys there ‘when the gate swings fully open’ before closing it again. He did that because he did not want to lose the keys in the bush.

As to the peanut butter that was taken to the bush, he purchased that from a shop earlier. As to the other ‘grey substance’ he had mentioned to police earlier, it was tahini which he got from the home pantry. Lowrencev asked the applicant what tahini was. The applicant spelt the word ‘tahini’ and said that it was ‘crushed semolina’.[22]
[22]Tahini is actually a paste made from crushed sesame seeds.

The case at trial

The Crown initially sought to rely on the applicant’s admissions in both the record of interview and the field interview. During pre-trial discussions before the judge in the days immediately before the trial, defence counsel sought exclusion of both the field interview and the record of interview on the basis that, before the field interview commenced, the police (a) failed to inform the applicant of his right to contact a legal practitioner, and (b) failed to tape record the giving of cautions, in breach of s 464C and s 464G respectively of the Crimes Act 1958. Counsel accepted that the police complied with those provisions once they arrived back at the police station; that is, before commencing the record of interview. He also accepted that there was a gap of several hours between the field interview and the record of interview. Nevertheless, he submitted that the earlier breach in relation to the field interview infected both interviews, such that both ought be excluded. Counsel also alluded to the issue of voluntariness, but the judge indicated that on the face of the record of interview the admissions contained therein were voluntary, hence unless counsel called evidence to the contrary (on a voir dire), he did not intend to exclude the record of interview. Counsel chose not to call such evidence, instead relying on his argument that the statutory breaches infected both interviews.

The judge gave a ruling indicating that he would exclude the field interview in the exercise of his discretion but admit the record of interview, subject to editing out references in it to the field interview. The judge also warned defence counsel that the field interview had only been excluded as a matter of discretion, was not inadmissible per se, and might be allowed into evidence depending on the way the defence case was conducted, including the nature of the defence puttage. We refer further to this aspect below. For present purposes, I merely note that the trial commenced on the basis that the record of interview (but not the field interview) would be before the jury.

The prosecutor opened the case on the basis that the Crown sought to establish that the admissions in the record of interview were true. He noted that the admissions contained considerable detail, and stated that at the end of the case he would tell the jury why they ought accept that the admissions were true.

Defence counsel gave a brief opening statement[23] which advanced nothing by way of positive defence.
[23]Barely more than one page of transcript.

The first witness was the victim.

The victim’s evidence

She stated that on Tuesday 4 March 2008 the applicant picked her up from the house where she lived with her parents, and drove back to his parents’ property. While driving through the paddock, the applicant told her that the deer on the property looked ‘spooked’. She looked but did not see anything, apart from the fact that the deer were looking at them. They then came across what the applicant said was a deer skin next to the road, so he stopped the car and got out to check on the deer. He disappeared from view, and she waited in the car with the engine idling. About ten minutes passed without the applicant returning. She began to get concerned, as she understood that there had been problems in the past with animals being stolen on the farm, and she thought the applicant may have come across such a person. The next thing she saw was a man rapidly approaching the car from behind. He was wearing khaki pants, a tan[24] jacket made of lycra or waterproof material, a balaclava and latex gloves. She could not identify this man, who we will call the kidnapper where convenient.
[24]She later agreed in cross-examination that the jacket was ‘bone’ coloured.

The kidnapper unbuckled her seatbelt, pulled her from the car, and threw her face down on a yellow blanket which was folded on the ground. He tied her hands and feet with rope and duct tape, blindfolded her with duct tape, and then put her in the footwell behind the front passenger seat, pushed her head down, and covered her with a blanket. She heard him fumbling through and removing papers from the back of the front passenger seat, then he closed the door. She heard him open the rear door and place things in the back. She thought she heard voices outside, which were very quiet, namely mumbling and mostly whispering. She did not recognise any voice. Someone opened the passenger door and went though her handbag. Someone shut the door and then opened it again. She thought that someone had got in the front passenger seat by the way the seat moved (her shoulder was against the back of the seat) and how it felt, but she could not actually hear someone in the seat. Someone shut the door and then someone got in the driver’s seat and drove off, making a sharp u-turn. The driver stopped, got out and got back in at the various gates on the property. At the final gate she heard the applicant’s keys (a ring of keys to the house, various locks on the property etc) being taken out the driver’s door and when the driver got back in the car she could not hear the keys. She added that ‘the person that I thought was in the passenger seat, if there was somebody there, they also got out of the car then, because there was – it was obvious to me that there was no one in that seat after that point’. The kidnapper then drove for several hours, stopping from time to time to check on her. She initially thought that she was alone, as the kidnapper did not talk at all, merely grunting once, but as he kept checking on her and opening the boot door as well, she thought that the applicant might be in the boot. When the kidnapper got out of the car, she called out the applicant’s name twice but there was no response. She then gave up hope that the applicant might have been there. She assumed that she was alone.

When the car came to its final destination, she was pulled from the car and again thrown to the ground. It was raining and the kidnapper used plastic or tarpaulin to protect her from the rain, which she thought was strange. She could hear a river nearby. She heard the kidnapper drive the car further into the bush, and thought maybe he was going to leave her there. But then he got a shovel and she heard him digging holes nearby. She thought he was going to bury her alive. She heard him burying the plastic he had earlier used to protect her from the rain. He then cut the ropes from her feet, picked her up and pushed her roughly through the bush in the direction of the river. He threw her to the ground and then threw blankets over her head. She then realised that he had a knife and was ‘half cutting half tearing’ her clothes off. She had five layers of clothing, including underwear, a petticoat, two shirts and a dress. After her clothes were removed, she was lying on her side and heard the kidnapper behind her, removing his belt and clothes, which in her mind confirmed her fear that he was going to rape her. She then heard him vomit. The next thing she heard was the applicant saying ‘Carolynne, is that you?’ She initially did not recognise his voice. He repeated her name, and she then recognised his voice. He asked if she was OK. She told him that she could not untie herself. He said that the knife was on the ground between the two of them, and asked if she could get it and untie him. She ultimately put the knife in his hands and he cut his own ropes and then cut off her ropes and the duct tape from her eyes.

In cross-examination, defence counsel explored with the victim whether, after the kidnapper cut off her clothes, he left the scene before the applicant appeared. The victim said initially that she had not formed the view that the kidnapper had left the area. However, by reference to her initial statement to police, she agreed with counsel that she had told the police that the kidnapper had disappeared. Counsel put to the victim that she could only have known that the kidnapper had gone away by what she heard. She said she did not hear the kidnapper go away. Further, she disagreed with counsel’s suggestion that the only reason she could have stated that the kidnapper disappeared was because she had heard him walking around the bush and that then there was no such noise. There was another reason she thought the kidnapper had disappeared, namely because she heard the applicant. She did, however, agree that she did not hear the applicant straight away. Further, she reiterated that she thought the kidnapper had gone away.

Resuming the victim’s narrative, after the applicant removed her blindfold, she was blinded by the light and initially could only make out blurry images. He told her to quickly grab everything that was around them and run. He shoved a sleeping bag into her arms, and the ropes and tape that he had cut from her, which she had earlier thrown on the ground. They ran into the river and eventually she noticed that a black sleeping bag cover was in her hands. She opened it and found it contained half a pillow case, full of desiccated coconut. There was also a brand new sleeping bag, and a tooth brush still in its packet. The applicant was holding a shovel, a knife and two jars containing peanut butter and tahini respectively. By this stage, she was freezing and asked the applicant if she could wear the sleeping bag. She put the sleeping bag around her, he put the smaller items in the sleeping bag cover which he carried, and they continued walking. They eventually walked up into the hills, rather than along the river, as she thought that the kidnappers would be more likely to follow the river. They stopped for a while to catch their breath and talk about what actually happened. She told the applicant how she had been grabbed, and asked him where he had been. He told her that two guys had jumped him, one hitting him in the head with a big metal rod, that he had got back up and tried to fight, and then they had hit him in the stomach. She asked if he had been in the car, and he said that he was in the boot. She asked why he did not respond when she called out to him. He said he was unconscious, had vomited blood, and the crown of his head was still very sore. She was concerned and asked to see the lump on his head. He had blood all over his face and through his hair, and a tiny little scratch on his forehead about one centimetre long, but she could not find any bruise. She did not worry about it, as she was only too happy they were both alive. They talked some more, and he asked who she thought might have kidnapped them. She said she had no idea, but maybe they were connected with the deer on his parents’ property. He said that he thought it was connected to a threatening letter that had been left at the victim’s parents’ house a week earlier.

They walked up the river (away from the place where the victim was untied, which I will call the kidnapping spot) for four days, before deciding on the Saturday morning to turn around and walk back toward the kidnapping spot. On the Sunday afternoon, the applicant told the victim to wait on the bank of the river while he went to scout the area to make sure it was safe. The applicant disappeared for about four hours. When he returned, he was wearing the ripped remains of his jeans and shirt. He told her that when he was crawling on his stomach near the kidnapping spot, he had come across a hole and in that hole was his big hiking backpack, which contained some water and food. He had also recovered her handbag and clothes. He had put everything in the big backpack and left it in the bush. After some discussion, the applicant and the victim walked back toward the kidnapping spot and recovered the backpack. The victim had a sewing kit in her handbag and was able to sew her clothes together enough to wear them. They got back to the junction of two rivers, and the applicant said the kidnappers were 100 metres to the right, so they took the left fork and walked for quite some way. The applicant also told the victim that when he had gone back to the kidnapping spot by himself earlier, he had seen a red four wheel drive with a dog chained to it, so he did not want to take her anywhere near it in case the dog smelt her.

Ultimately, the applicant and the victim were in the bush together for a week. During that time, they slept together under the sleeping bag every night as it got very cold. The applicant proposed marriage to the victim and also said that it would be better if they had sex because it would keep them warmer, and also they would be married before God. During one such proposal, the applicant was angry and yelling at the victim, who refused to have sex. Ultimately, they found their way out of the bush and onto a road where the farmer picked them up and took them to his house. The applicant phoned the victim’s parents and ultimately the police were called and the applicant and victim taken to Buchan police station.

The victim was cross-examined as to some matters of detail, but her evidence was essentially not challenged by defence counsel. That is perhaps not surprising, given that she never accused the applicant of being the kidnapper.

Other Crown witnesses

The applicant’s brother in law, Joshua Morris, who conducted a business with the applicant and the applicant’s mother, gave evidence that he was at the applicant’s parents’ house on 13 March and was shown a shopping receipt by the applicant’s mother. The receipt was from Safeway, Morwell dated Sunday 24 February 2008 and was for two jars of peanut butter and four packets of desiccated coconut. Morris told the applicant the receipt was found in his (the applicant’s) pocket. The applicant told Morris that he had never bought that, he wouldn’t have put it in his pocket, somebody must’ve put it there, and he wouldn’t be so stupid as to leave it, ‘keep the receipt that he’d bought it’. Some time in April, Morris and his wife found further receipts among the mixture of business and household receipts kept at the applicant’s parents’ house. There was a receipt from Aussie Disposals, Traralgon dated 3 December 2007 listing two items entitled ‘4x4’,[25] and ‘sbag’.[26] There was also a receipt from The Warehouse, Morwell dated 10 February 2008 which included items such as ‘twisted rope’, ‘polycotton gloves’, ‘cotton braided clothes line’ and a toothbrush. In cross-examination, Morris said that his family never went to Safeway and that the applicant’s mother told him that she never bought those products from Safeway in Morwell on a Sunday.
[25]A reference to four wheel drive maps.
[26]A reference to a sleeping bag.

A nurse, Anne Marie Brewer, gave evidence of her examination of the victim and the applicant after they first arrived at Buchan police station. The applicant claimed he had been hit in the head by the kidnapper one week earlier. Brewer examined his head and was unable to see any mark on his head, so she examined further and saw that his hair was full of dirt and dandruff. She looked right though his hair. There was no evidence of blood in his hair. She saw no sign of any injury consistent with him being hit on the head. The witness was cross-examined but it is not necessary to recount her evidence. In re-examination, Brewer said that the dirt and dandruff in the applicant’s hair may have prevented her from seeing any mark on his head, and she did not examine the actual skin or scalp.

A digital forensic analyst, John Jensen, gave evidence that he found records of Google searches on the applicant’s family computer, namely ‘living on tree ferns’, ‘bullshit bush foods’, and further that somebody had searched ‘Reedy Track’ and ‘Forlorn Hope’, which I interpolate were two of the places the applicant and the victim went whilst in the bush.

Apart from police witnesses, referred to below, several other witnesses were called, including the victim’s father and brother, but it is not necessary to refer to their evidence.

Police witnesses

Evidence was called from numerous police officers involved in the investigation. It is unnecessary to refer at length to their evidence in chief, where they essentially described their respective roles in the investigation. In cross-examination, defence counsel put to various officers that they had made threats and/or offered inducements to the applicant.

The first such puttage was to Condon who, with Lowrencev, had accompanied the applicant on the car trip back to Buchan police station for the interview immediately following the field interview. Counsel put (and Condon denied) the following:

(a)that during the car trip to Buchan, Condon said that ‘If you make things easier for us and give us a recorded confession, then we’ll make things easy for you, and make sure you don’t go to gaol at all, but only get a two-year suspended sentence’;
(b)that in the interview room Condon said ‘We want a full confession on tape and if you give us that we’ll get you a good meal, and then afterwards take you to Morwell for a good night’s rest, and tomorrow’s we’ll get you bail and you can go home’;
(c)that during a break in the interview, he said ‘stop bloody wasting our time. If you don’t give us a credible confession right now you’ll rot for 25 years behind bars’.

Counsel also asked why, following the third break in the interview, the detectives had not confirmed with the applicant that they had not questioned him during that break, as compared to the earlier two breaks in the interview where such confirmation was sought. Condon said that he had forgotten to raise the matter. He denied counsel’s suggestion that confirmation was not sought because both Condon and Lowrencev had in fact yelled and sworn at the applicant during the third break, and that Condon had said ‘stop fucking us around … If you’re going to give us a confession, you’d better do it properly … If you don’t you can forget about going home tomorrow’. Condon also denied the suggestion that he told the applicant during the third break that his keys were found ‘at the front gate at the end where it swings fully open’.

After this cross-examination of Condon, the prosecutor submitted that the field interview ought be admitted into evidence, essentially as a matter of fairness to the prosecution, on the basis that the defence allegation that the police had unfairly pressured the applicant to give them a ‘recorded confession’ ought be evaluated by the jury in the light of the fact that the police already had a recorded confession, namely the field interview. The judge agreed, and the field interview was admitted into evidence. I interpolate that the applicant abandoned ground 4 which had contended that the judge erred in so admitting the field interview and had erred by earlier failing to exclude the record of interview. In effect, then, the appeal was conducted on the basis that the field interview and record of interview were both properly before the jury.

Following the judge’s decision to admit the field interview, Condon was recalled. In further cross-examination, defence counsel suggested (and Condon denied) that at the start of the record of interview, he told the applicant ‘We’re going to give you your rights, but it’s only a formality. Don’t waste our time with phone calls or anything like that’.

As to the other police officers, without recounting the evidence of each individual officer, we note that Detective Sergeant Gleeson, who was in charge of the investigation and directed Condon to arrest the applicant, gave evidence in chief that after the arrest, but before the field interview, he asked the applicant a series of questions (not recorded) which included telling the applicant that the police believed he had kidnapped the victim and that they wanted him to tell them the truth. The applicant had asked for five minutes to think about it. Thereafter, the applicant admitted his involvement, said that he had buried the clothes, and would lead the police to the yellow blanket. In cross-examination, Gleeson agreed that the applicant had initially asked why they were asking him questions if they did not believe him. As to why he did not record the initial conversation after the arrest, ‘it wasn’t appropriate at the time … once the accused started making admissions, that’s when I made a decision that it should be recorded by way of video’. Counsel put to Gleeson (and to several other police officers) a series of threats/inducements allegedly made to the applicant, which may be summarised as follows:

(a)that the applicant would spend 25 years in jail, but if he cooperated they would make sure he only got a suspended sentence;
(b)that he was told to ‘confess now or rot in gaol for 25 years and regret it for the rest of your life’ to which the applicant responded ‘I will confess if I do not have to go to gaol at all’;

(c) threats to bring the sniffer dogs into the Alpine National Park;

(d)that he was told ‘the games were over’ and it was time to confess. In that regard, officers told the applicant that the victim had already made a statement saying that he did it;
(e)refusing to allow the applicant to talk to the victim, Gleeson saying he would not let the applicant near the victim because he was dangerous;

(f)statements in the bush before the field interview to the effect of ‘stop wasting our time, tell us where the balaclava and everything is before things get really bad for you’. And that the applicant said he did not want to speak to the officers anymore if they did not believe him; and
(g)that Lowrencev told the applicant that if he and the victim had run away together, that was not a crime.

It was also put to various police officers that they believed that the applicant was a suspect before they took him back to the wilderness area, and that they took him back to that inhospitable place in the hope of getting a confession.

In essence, the police officers denied counsel’s suggestions.

The applicant’s evidence

The applicant gave evidence denying that he had kidnapped the victim. It is unnecessary to set out his evidence as to background matters including his relationship with the victim.

As to events on the day of the kidnapping, he stated that he and the victim were driving though the paddock on his parents’ property en route to the planned picnic when he noticed that the deer were startled. He asked the victim if she saw that, and she said she did not. He gave evidence that she was facing away from the deer. They continued about 200 metres and suddenly saw a fresh deer skin and stopped. He told the victim that that was strange, as he had not seen it there earlier that morning. He got out to investigate, as they had had trouble with people coming onto the property, trying to steal the log truck, cutting the fence, letting deer out, and shooting deer. As the deer skin was fresh, and there were drag marks leading into the deer paddock, he thought someone might be there. He left the car idling and followed the fence line about 50 to 70 metres. When he was trying to crawl under the fence, he heard someone behind him, turned around and saw someone standing there. He was wearing dark clothes and a balaclava and had a heavy stick in his hand. He came up behind him and swung the stick at the applicant. The fence reflected most of the blow, but the applicant still received ‘a bit of a blow on the head’, and was then hit a couple of times more. The applicant tried to kick at the assailant’s feet after the first blow. The applicant was ‘groggy’ and did not remember much, except that he was placed in the back of his own car and had no ‘motor control’. He was dazed and then lot consciousness. His next recollection was regaining consciousness at the ‘crime scene’ (in the Alpine National Park), and being roughly pulled out of the car and dropped on the ground. He was still very dazed and could not move, but did not know why. The man picked him up, pushed him through the bush, and then pushed him back to the ground. The man dug a few holes and then cut off all of the applicant’s clothes. He was doing things behind him but the applicant did not know what. The man then walked away and the applicant thought this was his chance to get away. He sat up but felt nauseous and vomited. He then turned around and saw someone lying behind him about seven to ten metres away. He did not recognise the person, and called out. He then realised it was the victim. He asked her to untie him but she could not. Nor could he untie her. At that point, he saw the knife, bag, jars, and other items near them. He grabbed the knife and, ultimately, she held the knife and he cut himself free by moving his hands up and down the knife. He then cut her hands free, cut the tape from her eyes, and told her to grab the things so they could run away, which they did.

On the first night in the bush, at about 5pm when they were tired and starting to think about making camp, they were talking when the victim said ‘shh, I hear voices’. The applicant stopped talking and that was when he heard them too. They waited for the people to pass, ‘there was obviously some kind of animal with them’, and when they passed the applicant went out and had a quick look but could not see the people. He only saw the dog which was after them. It barked a couple of times and the victim said ‘quick, let’s get away from them’, so they started climbing the steep hills until ultimately it got dark and they had to sleep.

As to whether he proposed marriage to her, the applicant found the sleeping arrangements (sharing a sleeping bag) extremely difficult and thought, ‘look, Carolynne, if we can’t find another way of sleeping, the only way out of this for my conscience’s sake if we can maybe just say our vows before God, but not do anything, but just, you know, get married before God and in that way my conscience will be eased.’

As to whether he returned to the area where they were untied, the applicant said that on the Sunday he left the victim to wait while he went to see if the kidnappers were still there, as they may have been able to go back that way if the kidnappers had gone. He recognised the track where they had been, crawled up it, and came across the holes where the man had buried their clothes, the yellow blanket, the backpack and the victim’s handbag. He grabbed the items, and put them all in the backpack. He said ‘I heard a dog barking in the direction where the car had been and I (indistinct) the people were still there’. He returned to the victim, leaving the blanket behind.

As to events after they got out of the bush, the applicant said that he was extremely tired when first taken to the Buchan police station, as he had slept very little during the week in the bush and was tired from so much walking. After being interviewed, he was taken back to the motel at 1.15am and then woken the following morning at 8.00am. He had no shoes on and was only wearing two jumpsuits provided by the police. Later that afternoon he was taken back to the bush. Shortly after arriving, Condon told him he was under arrest for kidnapping the victim. He was ‘shocked and devastated’ and did not know what to do. The applicant gave the following account of the ensuing series of conversations:

I said, “What, that’s crazy. I didn’t kidnap anyone”, and then Gleeson took over and said, “Look, Julian, games are over, time to confess, everyone knows that you’ve really done it; no use trying to deny it”. I said, “Well, I didn’t do it. I didn’t kidnap anyone, I’m a victim. I’m not a perpetrator. I’m not a kidnapper”. And Gleeson said, “Oh, don’t give us that. It’s time to confess now. If you don’t tell us exactly where everything’s buried, if you don’t confess, then we’ll bring the dogs in and then things are going to get so much worse for you”. And I said, “Fine. Bring the dogs in and they’ll show you more things than I can”, and yeah, and I said, “Look, I don’t want to talk to you any more. If you’ve already decided I’m guilty, you know, there’s no point in talking”. And a policeman said, “Look, Carolynne knows you did it. She’s already made a statement saying so. And that hit me because all week we’d been - - - I didn’t believe - I said, “What? Can I talk to her?” And he said, “Well, what do you want to say to her?” I said, “Well, I want to ask her if it’s true that she thinks I really kidnapped her.” And Gleeson said, “No way. I’m not letting you anywhere near her. You’re dangerous - - - and we’re not letting you anywhere near her.” And he said, “Look, the thing is, we’ve got enough evidence to lock you up for 25 years whether you confess or not. We know that you’ve done it. If you try saying in court that you weren’t the kidnapper, you’ll get laughed out of court. No one is going to believe you anyway, so you might as well confess now before things get worse for you.” I said, “Well, I didn’t do it”. And he said, “Well, yes” - what did he say then. He said - yes, there was quite a long conversation, quite a few things were said. To me it seemed like an eternity, maybe it was only 10 minutes, but it seemed like an eternity to me, and he said, you know, “You’re going to - you know - you won’t be seeing your parents again for 25 years if you don’t confess, because everyone knows you kidnapped her.” I said, “Well, I didn’t.” He said, “Well, the only other option is that the two of you have run away and if you want - I mean, you can confess to that if you want, if that’s the case.” And I said, “Well, it isn’t the case.” And at that time Yvon [Lowrencev] had come back to the group and she said to me, “Look, Julian, OK, if you two did run away together, it’s not a crime. We’ll let that pass”, and I said, “But we didn’t.” And Gleeson said, “Look”, he finally said after all these things were said, he said, “Look, I’ve had enough. If you confess right now to kidnapping Carolynne” - or, “We’re going to lock you up”, or, “We’re going to” - you know, “We’ve got all the evidence we need, we’re going to convict you, lock you up for 25 years and you won’t be seeing your parents again for a long time.” And then he said, “Well, however, if you help us, if you confess to this and you help us, then we’ll help you and we can ensure that you get no custodial sentence whatever.” And I said, “Well, can I have five minutes to think about it?” And he said, “No. No more time. You’ve wasted enough of our time. You’ve had six of us working around the clock for a week trying to find you. You have to confess right now or spend the rest of your life regretting it.” And I said, well, could I first retract my previous statement then, and he said, sure. I said, “Well, OK. If I don’t get any custodial sentence whatsoever, then I’ll confess.” He said, “Fine.”

As to the field interview, the applicant said that he participated because:

I thought I was buying my freedom. I believed the police. I didn’t know what evidence they’d have against me, but they said if I didn’t confess, if I didn’t do what they said, then I’d be spending the next 25 years behind bars and that thought - even though I was intimidated by the police, that was the thought that absolutely petrified me, and I thought - I’d had very little sleep. I’d had very little sleep. I wasn’t up to - I just wanted to go home. I just wanted to go home and I didn’t want to - I was just absolutely petrified of the thought of 25 years behind bars.

He reiterated that his confession in the field interview was not true.

After the field interview, the applicant was placed in a car and taken back to the police station by Condon and Favre. He gave evidence that the conversation in the car was as follows:

I said, “Look am I going home now?” and they said “No we’re going back to the station for another recording, for another interview.” I said, “What? I was told if I confessed then I can go home” and Detective Condon said, “No what you were told is that we told you that we’ve got enough evidence to convict you for 25 years but if you help us, we’ll help you and if you give us a full confession which is what we did up there but also back at the station, we haven’t finished yet, we want a full confession then we’ll help you and we’ll give you - we’ll give you only two years suspended sentence.”

The applicant did not know what to do, as he had already confessed, was tired, and really just wanted to go home. Once he was placed in the interview room, the conversation was as follows:

I said, “So what is the deal now?” And they said, “Look we want a full confession on tape where you go through everything, you tell us exactly how everything happened and then while that’s being done we’ll organise a good meal for you and once the confession is over - once the confession is over we’ll send you back to Morwell, you can have a good night’s rest and tomorrow we’ll get you bail because you’re under arrest, we do have to, you know, go through the proper procedures.” And I said, “Look I’m really tired. If I’m going to be in custody tomorrow anyway, can’t we just do the interview tomorrow” because I was very tired and they said “No don’t waste our time. We’re doing this today. If you want us to help you then you have to help us, you have to do the right thing. We want the full confession today. We don’t want you wasting our time by, you know, tomorrow, doing it tomorrow or now trying to get lawyers or anything like that.”

He participated in the record of interview because ‘again, I thought I was buying my freedom.’ His confessions as to doing the kidnapping were not true. As to some of the specific matters in the interview, the first question which he did not know how to answer, was ‘a question about where I’d bought the balaclava because I’d never bought a balaclava before and because with any of the other questions - Carolynne and I had talked all week about what the kidnappers had done, what happened, yes we might have had a few other conversations but the bulk of the conversation was what had happened to us, why, how and so on’. During the third break in the interview:

… even though I tried, I hadn’t been able to please Detective Condon and Yvon [Lowrencev] to their satisfaction. They were very frustrated with me and during the third gap they yelled at me and swore at me to - they yelled at me and swore at me and told me to improve - basically, answer the questions properly so - yeah.

As to the two notes to the victim’s father, the applicant did not create them, did not place the first note at the victim’s house, and did not place the second note in a turpentine bottle at his parents’ property. However, he knew about the first note because on the day the Watsons found the note, the victim rang him up and told him all about it. The police showed him a copy of the second note, in a plastic sleeve, during the interview. He could read that it was addressed to Christopher Watson, and quickly scanned it, seeing a few swear words, and the names Matthew, Carolynne, and Christopher Watson.

The applicant also denied ever accessing the websites referred to in Jensen’s evidence.

The applicant was cross-examined on a number of matters, including as to non-puttage of his evidence to the victim. We refer to that matter below under ground 2A.

The applicant was also asked why, if he was still conscious when he was placed in the back of the car, he did not call out to the victim. The following exchange occurred:

A:I didn’t want - the driver was obviously in the car. I didn’t want to get any undue attention from him. I didn’t know what was going on. I wasn’t thinking clearly at the time. I was extremely groggy. My thoughts were blurred.
Q:In fact you were so groggy that you’re basically unconscious for the next six hours?
A:Yes.
Q:You must have been hit pretty hard?
A:I don’t attribute it to a hit on the head necessarily.
Q:You’re not going to suggest you were drugged, are you?
A:I can’t say that I was because I did not know that I was, but I wouldn’t rule it out either.

In the course of cross-examination, the applicant generally reiterated his evidence that he had been kidnapped, and that he had given false confessions to ‘buy his freedom’ because he was ‘petrified’ of going to gaol.

Other evidence called by the applicant

The applicant called evidence from two further witnesses.

A family friend, William Athol Jones, gave evidence that he saw a vehicle similar to the applicant’s outside his (Jones’) property on the afternoon of 4 March, but the applicant was not driving it. In cross-examination, Jones conceded that he was not sure who was driving and never told the police about seeing the car, even when the applicant’s mother had told him the applicant had been kidnapped, because he was not sure. He also gave evidence as to the route from the applicant’s parent’s property, the relevance of which is explained below when summarising defence counsel’s closing argument.

The other witness called by the defence was Jacob Matthews, a school principal, who visited the applicant’s parent’s property on 10 March to offer emotional support. While walking on the property, he saw a severed bird’s head hanging on the fence, apparently tied to the fence, while the body was on the ground with fresh blood present. It is apparent that this evidence was led by defence counsel in support of a case theory (never developed in closing address, in view of the complete lack of evidence) that a cult may have been involved in the kidnapping.

Prosecutor’s closing address

The prosecutor submitted that the jury ought accept the truthfulness of the confessions in the field interview and the record of interview.

As to the field interview, he submitted that Gleeson did not overbear the applicant’s will. Indeed, that the applicant did not appear to be intimidated in the witness box or in either interview. On the applicant’s own account of the conversations he had with police immediately before the field interview, the applicant stood up to the police, in the sense that he protested his innocence, said it was crazy that he was being arrested for kidnapping, told them he did not want to speak further, and that after the police threatened to bring the dogs in, he said ‘fine, bring in the dogs, they’ll show you more than I can’. This attitude was inconsistent with him being intimidated to the point of confessing to a crime he did not commit against a person he planned to marry.

As to the veracity of the field interview, the prosecutor noted that the applicant directed police to the blanket in the field interview, and they dug it up, and similarly, he directed police to the jacket under logs in the creek.

As to the record of interview, the prosecutor submitted that it reflected the applicant’s personal recollection of events rather than recounting what the victim had told him, at the behest of the detectives. He emphasised the following matters:

· the applicant provided details that were unnecessary unless he was telling the truth. For example, the fact that he lied to the victim about having seen a red four wheel drive in the bush. Also, there was the admission that he wrote the first note on his computer and delivered it to the victim’s house to ‘throw them off his trail’ together with the detail of his taking left shoes;

· the applicant’s answer that he bought the khaki pants at Big W had the ring of truth, as compared to his explanation in evidence that he had said Big W because the victim told him in the bush that that was the sort of place you would buy such pants;

· the volunteered information about the scratch on his head bleeding had the ring of truth and was consistent with the victim’s evidence;

· the applicant knew the content of the second note, and must have written it because he could not have gleaned the content just by glancing at it in the interview, when Condon specifically did not want him to look at it;

· the defence suggestion that the detectives got angry during the third break in the interview due to an alleged lack of cooperation was fanciful, given that by that stage in the interview they already had a full confession that he kidnapped the victim;

· further, the applicant did at times exercise his rights, declining to answer where he bought the balaclava;

· the applicant corrected the detectives when they got details wrong, for example when Lowrencev asserted that he ‘ripped off’ the victim’s clothes, the applicant replied ‘no, cut off’.

In addition to the admissions in both interviews, the prosecutor referred to the body of circumstantial evidence which tended to confirm the truth of the admissions. That evidence included the following:

· The applicant was a solidly built man who, on his evidence, was semi-conscious when placed in the back of the car. In those circumstances, one might expect that the victim would have heard something if he was placed in the car. The fact that she did not hear or perceive anything suggested that he was not placed in the back of the car.

· The lack of sound from start to finish was extraordinary.

Further, the applicant gave several details in his interview that could not have come from the victim. First, there was the statement that he had left the clothes and disguise in the paddock. Second, that he had dropped the keys at the front gate of his parents’ property ‘where the gate swings fully open’.

Next, there were several aspects of the applicant’s evidence which were inherently implausible. If the applicant had been kidnapped, it made no sense to leave the victim by herself for four hours while he scouted the area to see if there were still kidnappers on the loose. Further, it would have been an amazing coincidence that he was able to locate the various items buried in holes that he had not dug, after several hours walking through unfamiliar bush. Further, his account in cross-examination - that he had found the blanket in the bush and then reburied it because he wanted to avoid an argument with the victim - was implausible.

Moreover, unless the applicant was the perpetrator, the kidnapping was utterly inexplicable. Leaving aside speculation about deer poachers and satanic cults, which defence counsel (understandably) refrained from relying on before the jury, there was a complete lack of motive for any other person to have kidnapped the victim and the applicant. There was no demand for ransom, no threats of violence, yet a knife, food, a map, a sleeping bag and other items were left next to the victim. As against this, the applicant’s behaviour in the bush regarding requests for sex and marriage vows was entirely consistent with the victim’s evidence that he was pushing for marriage, and his confessions that he kidnapped the victim in order to spend more time with her. That is, the applicant had a clear, albeit bizarre, motive for the crime.

Further, the evidence as to the alleged police intimidation was singularly weak and unconvincing. And even if the applicant’s evidence as to the conduct of the police were accepted, it was inexplicable that the applicant - a strong willed person who at the age of 22 had decided he wanted to marry and had started building a house in which to live with the victim – would falsely confess to a crime he did not commit and thus effectively end all prospects of marrying the victim.

The mere fact that the victim acknowledged in cross-examination that she knew the applicant’s gait, how he walked and how he smelt, yet did not recognise him as the kidnapper, did not undermine the Crown case. Given the stress of the situation, his disguise, and the fact that the victim evidently did not want to believe the worst about him, as exemplified by the measured tone of her evidence, it is unsurprising that she never accused him of being the kidnapper.

This was an overwhelming case. The applicant’s account was so implausible having regard to the cogency of the circumstantial evidence that I am affirmatively satisfied of his guilt. The fact that the applicant gave evidence did not preclude the application of the proviso.[53]
[53]See R v Rudd (2009) 23 VR 444, 462-3 [78]–[82].

Ground 2A is not made out.

Ground 3

The applicant submitted that the judge failed to properly direct the jury as to the defence position in relation to the applicant’s admissions. It was submitted in particular that the judge did not refer to the applicant’s evidence in cross-examination that he had been threatened with 25 years’ imprisonment, offered inducements, and effectively deceived and threatened into confessing. And that the judge ought to have related the law to the facts regarding the defence position.

There is no substance in this complaint. The judge directed the jury that:

You have to be satisfied beyond reasonable doubt that the relevant parts or the gist of that record of interview were true, and that is what the Crown asks you - I am not saying solely it is a circumstantial case. It does depend upon the record of interview being true, where he confesses. Now, it is not a matter of this being decided on whether a person had not given him a proper caution, all that sort of thing.
The defence is the [sic] and they do not have to prove - establish anything that he was, effectively, coerced and bullied into making what turned out to be two separate and distinct untrue confessions. You have to be satisfied - if you are satisfied beyond reasonable doubt that the confession is true, you do not go off investigating matters of law. Like, breaches of sections, and things like that. That is not your function at all. Your function is to return [sic] - and those matters may come into play.
It is strongly argued by the defence in terms of whether the interview is true or not, bearing in mind there is no onus on the accused, but take yourself off on some sort of Royal Commission; the police have done that. That is what is [sic] all about. It is whether you are satisfied beyond reasonable doubt in all the circumstances that the record of interview is true. If you are not satisfied beyond reasonable doubt that the appropriate or confessional parts of it are true, then you have got to acquit him.[54]

[54]T 743-4.

It would have been clear to the jury that the defence case was that the applicant had made false confessions as a result of threats and inducements by police officers. Counsel for the applicant did not point to any specific way in which the judge should have related the law to the facts, or how the applicant was disadvantaged by the directions actually given. In the circumstances, the judge’s directions were sufficient to assist the jury in their practical task of determining whether the Crown had proved beyond reasonable doubt that the confessions were true. Ground 3 is not made out.

Ground 5

There is no substance in this ground which alleges an aggregation of errors.

I would refuse leave to appeal against conviction.

Sentence

The applicant abandoned ground 1 and was granted leave to add ground 4. He thus relied on the following grounds of appeal against sentence:

2.The learned sentencing judge erred by proceeding, on the [false report] offence to:
(a)convict the Applicant;
(b)impose an individual term of imprisonment; and
(c)make orders for cumulation
and by so doing, subjected the Applicant to double punishment.

3.The learned sentencing Judge erred by imposing on Counts 1 and 2 of the Applicant’s trial and the subsequent offence of failing to appear:
(a)individual sentences;
(b)a total effective sentence; and
(c)a non-parole period
which are manifestly excessive and which offend the principle of totality.

4.The sentencing discretion ought to be re-exercised by reason of the Applicant’s having, as a consequence of:

(a) the Applicant’s having been assaulted in custody; and
(b)the screening of a program on television devoted to the Applicant’s offending
spent the most part of his time in gaol in protective custody.

I deal with each ground in turn.

Ground 2 – Double punishment

The false report (count 2) arose from the applicant’s statement to the police officer who collected him and the victim from the farm, to the effect that both had been kidnapped. The maximum penalty for that offence was 12 months’ imprisonment. The applicant was sentenced to six months’ imprisonment, three months of which was cumulated on the kidnapping sentence. In contending that the sentence and order for cumulation had resulted in double punishment, the applicant focused on the judge’s statement in his sentencing remarks that the false report was serious because of the circumstances under which it was made and the police time and expense involved in the search. Counsel submitted that the time and expense associated with the week-long police search was a result of the kidnapping rather than the false report. And as this wasted time and expense occurred before the false report had been made, the false report did not add to the time and expense of the investigation. Thus, it was submitted, the applicant had been doubly punished for the consequences of the kidnapping.

Counsel for the respondent conceded that no further investigation was required as a result of the false report. That concession was not surprising, given that the applicant made full confessions within a day of making the false report. And while it might be said that if the applicant had made full confessions one day earlier, the scale of the operation that returned to the bush the following day might have been reduced, nevertheless it would still have been necessary for the police to return to the bush to locate items to confirm the applicant’s confessions and otherwise complete the investigation. Thus I consider that the respondent’s concession was properly made. As to the respondent’s submission that the false report, which included allegations of the involvement of a satanic cult and potential links to Mr Watson’s earlier report of the burning car, had the potential to complicate the investigation and put the police to further time and effort, in my view this is a matter of speculation. The fact is that, as the respondent conceded, the false report occasioned no additional time and expense. It follows that the wasted police time and expense were not matters on account of which the judge could conclude that the false report was serious. But it does not follow that the false report was not a serious offence. On the contrary, I consider that the false report perpetuated the victim’s belief that she and the applicant had been kidnapped by strangers. Further, while the false report arose from the same basic factual matrix as the kidnapping, it was a discrete incident of criminality deserving recognition through a separate sentence and a measure of cumulation. I am not persuaded that the sentence of six months and the cumulation of three months went beyond what was open in the circumstances.

Ground 3 – Manifest excess

As this ground is drafted, the complaint of manifest excess includes the kidnapping, the false report, and the subsequent sentence for failing to answer bail. However, in both written and oral submissions, the applicant did not contend that the sentence for failing to answer bail was manifestly excessive. That aspect of the complaint was effectively abandoned. Lest there be any doubt, however, I consider that the sentence of six months’ imprisonment for failing to answer bail, wholly cumulative on the earlier sentence, was not manifestly excessive. The judge was correct to regard the failure to answer bail as a serious example of the offence. The judge was entitled to reject the passive statement in one of the psychological reports to the effect that the false Indian passport the applicant travelled on had ‘found its way into the applicant’s hands’. As the judge said, the applicant’s decision to obtain a false passport and flee the jurisdiction in order to avoid the sentencing process was calculated and considered. Specific and general deterrence loomed large. Further, being an offence committed whilst on bail, the statutory presumption of cumulation applied, subject of course to the discretion to order otherwise informed in part by considerations of totality. In my view, the sentence and cumulation was neither manifestly excessive nor infringed the principle of totality.

As to the sentence for making a false report, for the reasons given under ground 2 I consider that the sentence and cumulation ordered were within the range open to the judge and did not offend totality.

As to the kidnapping sentence, counsel for the applicant submitted that the upper end of the Crown range (the Crown had suggested a head sentence of six to eight years with a minimum term of four to six years) was too high, which led to a manifestly excessive sentence. He submitted that the judge gave insufficient weight to the applicant’s youth, lack of priors, good work record, stable family environment and the fact that the offence was not committed for profit.

In my view, the objective gravity of the offending was high. The judge was entitled to sentence, as he did, on the basis that the kidnapping was part of an elaborate scheme devised by the applicant to pressure the victim into marrying him. And while aspects of the scheme were amateurish in the extreme – in particular the failure to devise any plausible motive to explain why unknown persons would have kidnapped both of them - the applicant nevertheless exhibited significant planning and forethought designed to achieve his goal of spending an extended period of time alone with the victim, while at the same time avoiding her recognising him as the kidnapper. Also, as the judge found, the applicant generally knew from his maps where they were throughout and, at any time, could have ended the ordeal. Yet, he chose to perpetuate the terrifying charade for his own perverse gratification. In short, the offending was pre-meditated, calculated and prolonged.

Further, the impact on the victim was significant. The terror she experienced as a result of being hog-tied and blind-folded during the six hour car trip cannot be overstated. Following that, the applicant’s digging of holes and cutting off his and the victim’s clothes, led the victim to believe that she would be raped and murdered. And while this did not come to pass, the terror of that experience again cannot be overstated. Further, she was particularly traumatised by the experience of being stripped naked with a knife and the ensuing publicity surrounding the trial. Moreover, the victim has been left to deal with the ongoing trauma of having been kidnapped by the man she intended to marry and said she would have entrusted with her life. In that regard, the judge correctly described the offending as a massive breach of trust. Finally, while the victim’s physical injuries were not as serious as the ongoing psychological trauma, it should be noted that she suffered severe sunburn, nerve damage to her neck because of the applicant’s rough handling which prevented her from playing the piano for a year, and ongoing pain in her lower back. She has required ongoing physiotherapy and counselling.

As to the applicant’s personal circumstances, it is clear that the judge had regard to the mitigating features referred to by counsel as set out above, and while the judge did not specifically mention that the offending was not motivated by monetary gain, he plainly sentenced on that basis. As against the mitigating features, however, the applicant showed a complete lack of remorse. That was inherent in his defence, which denied any responsibility and sought to blame the police for inducing a false confession. The lack of remorse was emphasised by his evidence to the effect that the victim had become ‘distant and self-centred’, apparently because her immediate priority was her studies and church rather than marriage. Further, there was his attempt to downplay any suggestion that he had sought to have sex with the victim in order to persuade her to marry him. Rather, he painted himself as the one who felt uncomfortable sleeping with her in the sleeping bag. And even in his confessions, there was no sense of empathy for the victim.

In all the circumstances, the judge was correct to describe this as a very serious example of kidnapping. And while the judge found that the applicant’s risk of re-offending was low due to the situational nature of the crime, his complete lack of remorse and empathy caused concern as to his prospects for rehabilitation. I would add that while the crime was not committed for monetary gain, the applicant’s motive was not a mitigating feature of the offending. Indeed, the offending ought not be trivialised by categorising it as the deeds of a misguided man hopelessly in love. Rather, it was callous and remorseless offending motivated by a base desire to subjugate the victim to his will.

The complaint of manifest excess really amounts to a contention that if proper weight were given to all the mitigating factors, no reasonable judge could have imposed a sentence of seven years and six months’ imprisonment. I am not persuaded of that contention. Nor am I persuaded that the total effective sentence and non-parole period were manifestly excessive. In my view, while the sentences were stern, it cannot be said that they were outside the range open to the judge in a sound exercise of the sentencing discretion.

Ground 4 – Protective custody

Counsel for the applicant relied on an affidavit of Brendan Francis Money, Director of the Sentence Management Branch at Corrections Victoria, sworn 23 August 2011 as to the conditions of the applicant’s imprisonment, in particular that he was now in protective custody. Counsel noted that the judge only became aware of this matter when sentencing the applicant for failing to answer bail. Counsel conceded that the applicant could not complain about the judge not considering this matter when passing the earlier sentences – given that the applicant’s absconding had created the situation whereby only limited material was before the judge. He submitted, however, that the Court could now consider the matters raised in the affidavit as ongoing further material demonstrating that the applicant has served his sentence under conditions materially more onerous than for most prisoners. Counsel for the respondent submitted that while evidence of events subsequent to sentence bearing on the applicant’s experience of prison might be relevant, in the present case the affidavit did not establish that prison was more onerous for the applicant, thus there was no basis on which to reopen the sentencing discretion.

The relevant evidence was as follows. Mr Money deposed that the applicant received a black eye from another prisoner whilst on remand at the Metropolitan Remand Centre on 20 May 2008. The police were informed but the applicant made no formal complaint and no further action was taken. The applicant was ultimately released on bail on 13 August 2008. After being sentenced, he was received into Melbourne Assessment Prison on 24 September 2009 and was at Fulham from 8 October 2009. Following a television program on 21 July 2010 which described the applicant’s offending, he felt unsafe at Fulham and accepted a protection placement at Barwon. He arrived at the Grevillea Unit at Barwon on 27 July 2010. On 31 July he was moved to the Banksia Management Unit at his own request, saying that other prisoners were taunting him and hitting him in the groin region, as a result of the recent publicity concerning his offending. On 12 August 2010 the applicant was relocated to Fulham, where he has remained in the protection unit without further incident. The applicant has since worked in the nursery, studied, and engaged in recreational activities. Mr Money further deposed that protection prisoners are able to access programs and services ‘at a generally equitable level to mainstream prisoners’. He considers that the applicant is safely and appropriately accommodated at Fulham, and his protection status does not prevent him participating in programs and education, and allows him to have the same time out of his cell each day as other prisoners at Fulham.

In my view, the applicant has not established that the circumstances of his incarceration are such as to make prison more onerous for him than for other prisoners. The initial assault occurred at the Metropolitan Remand Centre and the subsequent intimidation occurred at Barwon. The applicant is now at Fulham and, while it may be readily accepted that the applicant continues to be fearful for his safety, the unchallenged affidavit indicates that the applicant is safe and able to participate in programs at Fulham as fully as other prisoners. Indeed, it would appear that the applicant has been willing and able to put his time in prison to good use. It follows that there is no basis on which to re-open the sentencing discretion.

I would refuse leave to appeal against sentence.

- - -

[2011] VSCA 445

20 December 2011