Chalmers v The Queen
[2011] VSCA 436
•16 December 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2009 0709 | |
| NEIL CAMERON CHALMERS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | MAXWELL P, REDLICH JA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 March 2011 |
| DATE OF JUDGMENT | 16 December 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 436 |
| JUDGMENT APPEALED FROM | [2009] VSC 251 (Osborn J) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Circumstantial evidence – Post-offence conduct – Lies, concealment of body – Whether applicant’s explanation raised reasonable doubt – Verdict not unsafe and unsatisfactory – Application refused.
CRIMINAL LAW – Appeal – Sentence – Murder – Conviction after trial – Sentenced to 22 years’ imprisonment with non-parole period of 18 years – Whether open to conclude that killing premeditated – Whether applicant suffering from mental illness – Whether sentence manifestly excessive – Application refused.
CRIMINAL LAW – Appeal – Forfeiture – ‘Tainted property’ – Whether property ‘used in connection with the commission of the offence’ or merely the location – Review of interstate authorities – Whether property enlisted to applicant’s purpose – Forfeiture order made by consent – Whether open to challenge on appeal – Appeal allowed – Forfeiture order varied – Confiscation Act 1997 ss 32, 33.
WORDS AND PHRASES – ‘Use’, ‘used in connection with the commission of the offence’.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr T F Danos | Jeremy Harper & Associates |
| For the Crown | Mr C B Boyce | Mr C Hyland, Solicitor for Public Prosecutions |
MAXWELL P
REDLICH JA
KYROU AJA:
Following a trial in the Supreme Court, the applicant was found guilty of murdering his de facto partner, Xiao Ling Liang. He seeks leave to appeal against his conviction on two grounds both of which amount in substance to a complaint that the verdict of guilty to murder was not open to the jury.
He also seeks leave to appeal against the sentence of 22 years’ imprisonment, with a non-parole period of 18 years, and seeks an order setting aside part of a forfeiture order that was made following his conviction. For reasons which follow, we would refuse the application for leave to appeal against conviction. We would refuse leave to appeal against the sentence imposed by Justice Osborn on 22 June 2009. Assuming leave is necessary,[1] we would grant leave to appeal against part of the forfeiture order made by Justice Osborn on 3 April 2009 and would allow the appeal and vary that order by deleting paragraph 1 of the schedule to that order.
[1]See Confiscation Act 1997, s 142(1)(c).
A. THE CONVICTION APPEAL
It was not in issue at the trial that the applicant had caused Ms Liang’s death. The sole issue was whether he had the requisite intent to constitute murder or whether her death was accidental. Counsel for the applicant thus suggested in his closing address to the jury that they return a verdict of guilty to manslaughter.
The circumstances of the offence
The applicant ran a landscaping business with work initially in Sydney and then also in Melbourne. Ms Liang was a sex worker and managed a brothel known as Studio 466. The applicant and Ms Liang were in a de facto relationship which had commenced in 2003. They resided together in an apartment in Melbourne with Ms Liang’s two-year-old daughter from a previous relationship.
From a computer found in the applicant’s possession after Ms Liang’s death, the investigating police recovered email exchanges between a ‘Michael Wong’ (who did not exist) and Ms Liang, in which ‘Wong’ advised that he would make monthly trips to Melbourne in 2006 and would seek an escort. The email account of Michael Wong had been created on the applicant’s own broadband account on 2 October 2005.
On 23 February 2006, the applicant returned to Melbourne from a trip to Sydney. The same day he visited the area of Ennis Road, Tallarook, for a period of at least four hours. He then returned to Melbourne. The following day he was to return to this area to bury Ms Liang’s body.
Sometime between 8:00 pm on 24 February 2006 and 4:48 am on 25 February 2006, while the applicant and Ms Liang were in the bedroom of their apartment, the applicant gripped her neck with his right hand and applied force with his thumb, as a result of which she died. The applicant claimed that her death was accidental. Ms Liang’s daughter was asleep in the same room when Ms Liang was killed. The applicant then wrapped her body in a sheet.
The applicant appeared on footage from a surveillance camera in the lobby of the apartment building at 1:53 am on 25 February 2006, looking around the security desk where there were monitors for the surveillance cameras in the building. Further footage from a surveillance camera showed the applicant at about 4:48 am that morning carrying Ms Liang’s wrapped body downstairs to the car park from the apartment. He then transported Ms Liang’s body to Ennis Road, Tallarook where he buried it in the bushland, packing the grave with a substantial quantity of industrial lime because he wanted the body to ‘disappear’. From the times recorded by the GPS in the applicant’s car and the time of a phone call made later that morning from the Glenroy area, it was apparent that he could only have been at the site of the burial for about one-and-a-half hours that morning.
Thereafter the applicant lied to Ms Liang’s family and friends, pretending that he thought she had disappeared. He flew to Hong Kong on 27 February 2006. When he returned to Australia on 2 March 2006, he was arrested at Sydney Airport and was subsequently charged with her murder.
On 8 August 2007 the applicant pleaded not guilty to one count of murder. In the course of giving evidence in his trial, the applicant indicated that he was willing to assist the police in locating the body of Ms Liang. Subsequently, on 13 October 2007, the applicant accompanied police officers to the area where it was believed the body might be buried, and he there participated in a recorded interview with the police while they searched the area. The search led to the location of Ms Liang’s body. On 15 October 2007, the jury in the first trial was discharged without verdict. The applicant was then again presented for trial on 5 February 2008, which led to his conviction on 19 February 2009.
On the appeal the applicant submitted under cover of the first ground that the learned trial judge should have ruled that there was insufficient evidence on which the jury could have convicted the applicant of murder, and accordingly his Honour should not have left the charge of murder to the jury, but only its statutory lesser alternative of manslaughter. Under the second ground of appeal the applicant submitted that the verdict of murder was unsafe and unsatisfactory as it was not supported by the evidence.
The applicant’s evidence
In the course of his examination-in-chief and cross-examination, the applicant made a number of admissions. He also proffered explanations for his post-offence conduct that the prosecution relied upon as demonstrating pre-meditation or consciousness of guilt or both.
The applicant acknowledged he was aware that Ms Liang worked as a prostitute and ran an escort business. He admitted that, several months prior to her death, in around October 2005, he had created the false identity of Michael Wong, with a false email address, and had sent emails to Ms Liang as if he were a client, including a proposal that he meet with her. The applicant said he did so because he was interested to know how she ran her business.
The applicant admitted going to Tallarook after flying in from Sydney on 23 February 2006. He said he had never been there before that day. He said that he had gone to the area on that day for the purpose of sourcing a particular type of rock for a landscaping contract for a client. He had heard he could find such rocks in Tallarook. He said that he did not use a rock supplier for the job because he had not previously needed to use rocks in Melbourne, as he was usually based in Sydney. He admitted that it was his usual practice in Sydney to go to a rock supplier but that it was not necessarily the practice for landscapers to go to a rock supplier and that if he wanted a particular size of rock, shape of rock, or rock with a particular dimension or facet, he might go and source it himself. He said he had a three-ton tipper or trailer in Sydney that he could have brought down to use to take the rocks. He admitted that he had not discussed with anybody the idea of using these rocks for the particular job, and did not produce any written records of the contract. He said that on that first visit to Tallarook, he did not at any time get out of the car.
The applicant stated that the reason he had gone down to the security desk at 1:53 in the morning on 25 February was that Ms Liang had told him that a friend of hers who was a Chinese chef was going to deliver some documents to the desk at that time, and he was looking for them.
The applicant gave evidence that on the night of Ms Liang’s death, they had both taken amyl nitrate. It had made him dizzy. A bottle of amyl nitrate had been found in his luggage when he was arrested at Sydney airport. In examination-in-chief he stated that he thought it was the same bottle as the couple had used on the night Ms Liang died. In cross-examination he stated that it might have been a different bottle than that found in his luggage.
The applicant gave evidence that Ms Liang died in the early hours of 25 February 2006 while they were engaging in a sexual act. He admitted that he had placed his right hand around Ms Liang’s throat and applied pressure with his thumb, at which time she died. He denied that he intended to kill her, claiming that he had performed the act at Ms Liang’s request. In cross-examination he said that it was possible that the Crown was right in saying that he had strangled Ms Liang, because he had pressed on her throat, but he strongly denied that he murdered his wife. He said ‘I loved her, I didn’t kill her … There was no intention, there was no reason to kill her’. He testified that Ms Liang was naked at the time she died but that he had put her clothes back on her except for her underwear.
He gave evidence that, after he realised Ms Liang was dead, he had succumbed to a panic attack. He said he had gone straight to Tallarook because he was originally from Sydney and did not know Melbourne very well but knew Tallarook from his visit two days before. He said:
All I wanted to do was just have Shirley’s body disappear, I just didn’t want to – I couldn’t handle seeing her dead, I just had to have her disappear so the only place I knew was Tallarook so I went there.
In cross-examination he admitted that he had been working in Melbourne for some five years prior to Ms Liang’s death. He admitted that he drove to Ennis Road and that he then dug the grave which he said did not take very long. He said he was ‘used to digging in hard heavy ground’ as part of his work. He laid the body in the grave and covered it over with lime, which he had in the back of his car left over from a landscaping job.
The applicant admitted that, when he returned to Melbourne after burying the body at Tallarook, he told lies to people who had known Ms Liang, in order to cover up what had happened. One such lie was that Ms Liang had gone on a two-week trip with Michael Wong for $10,000, he being the fictitious client created by the applicant several months earlier.
The applicant also admitted that on the day he left for Hong Kong, he had left a note on Ms Liang’s pillow which gave the appearance that she had disappeared. He admitted that he had written the note several weeks beforehand, and that it had been on Ms Liang’s bedside table. When asked in cross-examination why he used the note, the applicant replied:
I expect I was using that as part of the lies as I did with the emails [sent from the address he created for Michael Wong] to just get the whole circumstance of Shirley’s passing and me burying her out of my mind and to leave – just to make it all disappear.
After returning from burying the body, the applicant also went to the brothel where Ms Liang had worked and asked some of the women working there to take the phones she had used to organise jobs. He asked them to cover some of her clients. He admitted he took one of the prostitutes to a job. She testified at the trial that the applicant at that time asked her for sex.
The applicant admitted that, prior to Ms Liang’s death, he had arranged to fly to Hong Kong for business purposes. He said that he took advantage of his pre-arranged plans to go to Hong Kong on 27 February 2006 because he was ‘running away from the situation, of Shirley’s death’.
The applicant testified that he had understood the first trial was aborted because there was some sort of deal foreshadowed in relation to him pleading guilty to manslaughter. He said that, when that did not come through, he still wanted to show the police where Ms Liang’s body was, and that he knew that they would find Ms Liang had no bruises or cuts, as he ‘didn’t do anything to her.’
The Crown case against the applicant
Because of the admissions made by the applicant, the dispute at trial was confined to the question whether the applicant had the requisite intent for murder
when he applied pressure to Ms Liang’s neck.[2] The prosecutor submitted that there was circumstantial evidence, including post-offence conduct evidencing consciousness of guilt, which was sufficient to satisfy the jury not only that the applicant had the necessary intent but that the killing was pre-meditated. The prosecution case, and the evidence upon which it relied (including evidence of the applicant), was as follows.[2]In his closing submissions counsel for the applicant told the jury ‘he has obviously killed her. You won’t have any trouble about finding that. There is no mystery … she has either died by not allowing enough air to get into her brain or she has died by this vagus nerve reaction that drops the heart down and she dies instantly. Both of them occur when this particular location of the body is pressed … we are not arguing with that.’
The applicant travelled to Ennis Road in Tallarook on 23 February 2006. He spent some four hours at the site that day, during which time he could have dug a grave for Ms Liang. It was the prosecution case that the approximately one and a half hours he spent there on 25 February was not enough time to dig the grave and bury the body. The prosecution submitted that it was open to the jury to reject the applicant’s explanation for his first trip to Tallarook as fanciful, for a number of reasons. The prosecution led evidence through expert witnesses that rocks of the type found at Tallarook could easily have been sourced from rock suppliers, and at a relatively low cost. The expert witnesses gave evidence that it was not usual practice in the landscaping business for a landscaper to source rocks in the way the applicant claimed to have been doing. The applicant had worked as a landscaper in Melbourne for about five years prior to Ms Liang’s death and would know about landscape material suppliers in Melbourne. The applicant had not spoken with any land-owners in the Tallarook area about obtaining the rocks he had allegedly sourced there.
The applicant had changed his account as to why he was at that site on the first occasion. When he accompanied the police to locate and recover the body on 13 October 2007, he said that he had gone to Tallarook to source rocks because they were so expensive. When he gave evidence at the trial, however, he said he went there to conduct a preliminary investigation as to that type of rock before sourcing them from a rock supplier. The prosecution claimed that he changed his account to fit in with the expert evidence that the prosecution had called and to explain why he did not have the means to transport the rocks from Tallarook on that day.
The prosecution submitted that the circumstantial evidence entitled the jury to reject the applicant’s explanation for his visit to Tallarook on the 23rd as a fiction. It also submitted that the evidence from the GPS in the applicant’s car, as to his movements on 25 February when he returned to Tallarook, showed that he had made one or possibly two u-turns immediately before stopping and that this suggested he was searching for a previously-located site. The prosecution contended that the fact that he was only there for one to one and a half hours showed he had already made preparations for the burial at that site at an earlier time, because he could not have dug the grave in the time available.
As evidence of premeditation, the prosecution relied upon the applicant’s creation of ‘Mr Wong’ and the sending of emails from ‘Mr Wong’s’ email address to Ms Liang in October 2005, talking about Ms Liang and ‘Mr Wong’ going away together. The prosecution called a cleaner, Mr Esenyel, who worked at Ms Liang’s brothel and who had known her for several years. Mr Esenyel gave evidence that, prior to Ms Liang’s death, the applicant had asked him what Ms Liang did as part of her business. The applicant told Mr Esenyel that he was suspicious that Ms Liang was going to go away with a wealthy Chinese businessman. The applicant said he had been checking her emails and found that she had been contacting a Chinese businessman who was going to pay her $10,000 to be his escort for two weeks. The applicant told Mr Esenyel that he wanted someone else to know, in case anything happened to Ms Liang while she was with the client.
Mr Esenyel also testified that, on the day after Ms Liang disappeared, he had spoken to the applicant and asked him where Ms Liang was. The applicant reminded him what he had said about the Chinese man. The applicant said that the Chinese man had come to Melbourne the previous morning at 9:30 am in a stretch-limo and had picked up Ms Liang. The prosecution submitted that the applicant’s creation of this fictitious client and proposed trip away with Ms Liang, his mentioning of the arrangement to Mr Esenyel, and the use of the story to cover Ms Liang’s disappearance after he had buried her, was evidence that he had intended to kill his partner and that her death was not accidental.
The prosecution led evidence that the applicant’s arrangements to go away to Hong Kong had been made prior to Ms Liang’s death. The applicant admitted this, but denied that the plans had included his former girlfriend, Deslie Blinco. Ms Blinco gave evidence, however, that he had arranged the holiday for both of them on 21 February 2006, and that it had seemed ‘out of the blue’. In accordance with that arrangement, she flew to Melbourne from Sydney on 27 February and they then departed Melbourne for Hong Kong where they stayed for four days.
The prosecution submitted that the post-offence conduct of the applicant could be used as evidence of his consciousness of guilt. The post-offence conduct comprised:
·the removal and burying of the body;
·the continued concealment of the body for 18 months;
·the mode of the burial, specifically the deliberate use of the industrial lime to make the body ‘disappear’;
·the placing of the note on the pillow;
·the taking of the trip to Hong Kong with his ex-partner;
·the attempts to get other girls to take Ms Liang’s phones and cover her work; and
·the lies told about her whereabouts, in particular that she was away with a client for two weeks.
The prosecution also submitted that there was a lack of evidential support for the applicant’s claim that he and Ms Liang had used amyl nitrate in the bedroom on the night of Ms Liang’s death. It submitted that his actions, in asking a prostitute for sex and flying to Hong Kong with a friend within two days of his partner’s death, were not those of a man who had just lost his partner in a tragic accident.
Ground 1: murder should not have been left to the jury
This ground of appeal was couched in terms of a challenge to a ruling by the learned trial judge refusing a no-case submission. It was conceded on the appeal, however, that there had been no such submission and hence no such ruling. It was acknowledged that, as the applicant had given evidence, this Court must have regard to the whole of the evidence placed before the jury, including the applicant’s testimony, when considering whether a miscarriage of justice occurred.[3] There would have been no miscarriage if, on the whole of the evidence, the verdict was supportable.[4] During argument counsel rightly conceded that ground 1 was effectively subsumed within ground 2, and did not further pursue it as a separate ground.
[3]R v Wood [1974] VR 117, 119.
[4]Ibid.
Ground 2: verdict was unsafe and unsatisfactory
Under ground 2, the applicant argued that it had been wrong for the jury to be told that they could draw an adverse inference from the applicant’s trip to Ennis Road in Tallarook two days before Ms Liang’s death. The conduct was said to have been ‘intractably neutral’ as between the offences of murder and manslaughter. That is, it was equally consistent with consciousness of guilt of either offence.[5] As a consequence of the importance which that particular post-offence conduct assumed in the prosecution case, the conviction was therefore unsafe and unsatisfactory.
[5]R v Ciantar (2006) 16 VR 26, 39 [40] (‘Ciantar’).
It was further submitted that a state of panic following an accidental killing could adequately explain the disposal of the body in the remote bushland, the use of the pre-prepared and self-serving note left on Ms Liang’s pillow, the pre-concocted alibi in the form of Michael Wong, the flight to Hong Kong with his ex-partner, the attempts to have other girls in the escort agency take Ms Liang’s phones and cover her work, and the lies told about her whereabouts.
These submissions cannot be sustained, in our view. First, the post-offence conduct was not relied upon only to support an inference of a consciousness of guilt. The claim that Ms Liang had gone away with the previously-created fictitious character, Michael Wong, the use of the pre-prepared and self-serving note and the combined effect of the applicant’s previous visits to Tallarook and his subsequent burial of Ms Liang at that place also supported an inference that the killing of Ms Liang was premeditated.
Secondly, the submission that the evidence of post-offence conduct cannot be relied on to show consciousness of guilt if it is equivocal reflects the persistent fallacy advanced in this Court that such conduct cannot be relied upon where there are other potential explanations for it apart from guilt of the offence which is charged. Such evidence is not to be scrutinised in individual segments to ascertain whether each, viewed separately, permits a finding that the accused has impliedly admitted his guilt of the offence charged. Whether an inference of guilt may be drawn beyond reasonable doubt depends upon a consideration of all of the circumstances, including the post-offence conduct.[6]
[6]Ibid 40 [44].
Save where post-offence conduct is the only evidence from which to infer guilt of a specific offence, or where it is likely to assume particular significance in the jury’s process of reasoning, the jury need not be directed that they cannot draw an inference of guilt unless satisfied that there is no other reasonable explanation for that conduct.[7] As this Court stated in Ciantar:
Although the post-offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words and conduct before and during the killing and forensic evidence, may well satisfy the jury beyond reasonable doubt that the accused killed the deceased with murderous intent.[8]
[7]Edwards v The Queen (1993) 178 CLR 193, 210.
[8]Ciantar (2006) 16 VR 26, 47 [67].
Counsel for the applicant conceded that it was open to the trial judge to leave the evidence of the first trip to Tallarook to the jury and, further, that the jury was entitled to reject the applicant’s explanation for that trip. But it was submitted that, even if the jury rejected the applicant’s explanation, that did not advance the prosecution hypothesis that the purpose of his trip was to prepare the grave. It was said that there was no evidence to sustain the inference that the applicant did anything at the site on the 23rd which was in any way connected to the subsequent death and burial of Ms Liang.
The applicant’s prior visit to Tallarook was clearly relevant, as it was a visit to the very bushland area where Ms Liang’s body was subsequently buried. The significance of the visit to Tallarook two days before Ms Liang’s death was not to be assessed separately from the rest of the circumstantial evidence which could support a finding of guilt. In considering whether an inference can be drawn from a particular circumstance, the jury is not confined to consideration of that circumstance in isolation, but can consider that circumstance in light of all the other evidence pointing to the guilt of the accused.[9]
[9]Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535 (Gibbs CJ and Mason J).
If it was open to the jury to reject the explanation proffered by the applicant as a reasonable possibility, then this Court will not interfere with the jury’s verdict unless the evidence raised a reasonable doubt about the applicant’s guilt. In our view, having regard to the matters set out in paragraphs [26]–[28], there were ample grounds to justify the jury’s rejection of the applicant’s account as to why he went to Tallarook on 23 February. Once the applicant’s explanation for the visit was rejected as not being a reasonable possibility, it was as if the applicant had given no explanation at all for visiting this secluded area of bushland.[10] In the absence of a credible explanation from the applicant, the jury could more readily draw the adverse inference because there was no other hypothesis or explanation available that was consistent with his innocence.[11]
[10]Weissensteiner v The Queen (1993) 178 CLR 217, 246 (Gaudron and McHugh JJ).
[11]Ibid 229–30 (Mason CJ, Deane and Dawson JJ).
It was open to the jury to infer that, on the applicant’s first visit to the area, he located a site and made some preparations for the grave because he intended to kill his partner. We do not accept, as the applicant contended, that such an inference is mere speculation. It is a deduction which can reasonably be drawn from all of the established facts.[12] In the absence of an innocent explanation for the earlier visit, it was a compelling piece of circumstantial evidence.
[12]Holloway v McFeeters (1956) 94 CLR 470, 477 (Dixon CJ); Linfox Resources Pty Ltd v The Queen [2010] VSCA 319, [49].
The applicant placed heavy reliance upon a ruling made by Hampel J in the unreported case of R v Rice.[13] His Honour had directed the jury that a verdict of guilty to murder, as opposed to manslaughter, was not open on the facts. Rice was an entirely circumstantial case which included elaborate lies and deception by the accused following the victim’s disappearance. Crucially, there was no evidence of any facts from which the jury could properly infer that the accused had the requisite mens rea for murder when he killed the victim. Moreover, as the respondent pointed out, the Court of Appeal disagreed with the ruling, although this was not central to the appeal.
[13]This ruling was referred to by this Court on the appeal against the conviction for manslaughter: R v Rice [1996] 2 VR 406 (‘Rice’).
The applicant also submitted that the jury should not have been told that they could draw an adverse inference from the fact, if so found, that the applicant asked a prostitute for sex days after his de facto wife died. This submission is also unsustainable. It was well open to the jury, in our view, to draw the inference that this was not the behaviour of a man who was grieving after having accidentally caused the death of his wife. It was for the jury to determine what (if any) inference to draw from it and to assess what weight to give that evidence.
In our opinion, the circumstantial evidence provided a compelling basis for the conclusion that the applicant had intended to kill his de facto partner and that her death was premeditated. Our consideration of the entirety of the evidence, including the applicant’s implausible explanations, does not engender any doubt as to the applicant’s guilt.[14]
[14]M v The Queen (1994) 181 CLR 487.
As this ground is not made out, the application for leave to appeal against conviction must be refused.
B. THE SENTENCE APPEAL
As mentioned earlier, the applicant was sentenced to 22 years’ imprisonment, with a non-parole period of 18 years, on the basis that the killing of Ms Liang was premeditated. The applicant seeks leave to appeal against his sentence on five grounds.
Ground 1: error in concluding that applicant failed to show remorse
In response to the submission on the plea that the applicant felt ‘real and continuing remorse’ for Ms Liang’s death, the sentencing judge concluded that ‘when your behaviour after the killing is considered your expressions of remorse looked at as a whole are to be regarded as “somewhat limited”.’[15] The fact that the applicant had deliberately concealed Ms Liang’s body for a lengthy period before offering to help police locate it led his Honour to conclude that he could not give significant weight to the suggestion of genuine remorse.
[15]R v Chalmers [2009] VSC 251, [43].
This ground of appeal could only succeed if the finding of limited remorse was not open. The appeal submission relied on the applicant’s willingness to plead guilty to manslaughter at the time of the first trial, his cooperation with police in October 2007 to help them find the body, and the comments he made in the course of his recorded conversations with the police on the day they located the body, to the effect that he was helping them locate the body so that the applicant’s family could have closure.
Where there is a dispute as to whether a plea of guilty, or an offer to plead guilty, is demonstrative of the offender’s remorse, the context in which the plea or offer is proffered will be relevant. Although the fact that the prosecution case is strong does not by itself provide a basis for concluding that a plea of guilty is not attended by genuine remorse, consideration of the context may reveal that the dominant reason for the plea was not remorse but a recognition of the strength of the prosecution case.[16] Similar considerations may apply where an offender offers to plead guilty to a lesser offence than that for which he or she is being tried and is ultimately convicted of the lesser offence.
[16]R v Pajic (2009) 23 VR 527, 532 [20].
The context in which the offer to plead is made may permit the conclusion that it was not remorse which motivated the offer. Where the offender offers to plead guilty only to a less serious offence and is convicted of the more serious offence, the context may more readily permit the conclusion that the offer was not motivated by remorse. This is such a case. The assistance given by the applicant in helping the police to locate Ms Liang’s grave was, as he said in his evidence, in the hope that he would be charged with manslaughter. The applicant’s offer to plead guilty to manslaughter did not involve any acknowledgement that he intended to harm his partner. It must have rested upon his claim that her death was an accident. It was an offer made in the face of a very strong prosecution case that demonstrated his intention at the time of his partner’s death. In that context his concern about Ms Liang’s family expressed at that time was consistent with a finding that his remorse was ‘somewhat limited’.
This ground fails.
Grounds 2 and 3: error in sentencing applicant on basis the killing of Ms Liang was premeditated
Under proposed grounds 2 and 3, the applicant submitted that the sentencing judge erred in finding that the applicant planned to kill Ms Liang, and that the applicant had dug the grave prior to killing her.
The arguments advanced by the applicant in support of these grounds were substantially the same as those made in the course of contending that the verdict was unsafe and unsatisfactory. For the reasons given above, it was open to the sentencing judge to be satisfied beyond reasonable doubt that the applicant had planned to kill his partner. Such a finding was consistent with the jury’s verdict.
These grounds fail.
Ground 4: error in rejecting expert evidence of applicant’s bipolar disorder
On the plea the applicant tendered a report prepared by Dr Lester Walton who noted that the applicant had been diagnosed in the early 1980s with bipolar affective disorder. Dr Walton stated:
Routinely medical practitioners are reliant upon the accuracy of the history provided by their patients in order to reach sound conclusions and I note that Mr Chalmers does have an established history of providing false information. However, there is a grandiosity to at least some of his criminal offending involving dishonesty which is consistent with a diagnosis of bipolar affective disorder.
Clearly I am not in a position to provide a rigorous unequivocal opinion because I have not observed it directly myself but I am satisfied that Mr Chalmers is validly diagnosed with a bipolar affective disorder, which is why I have continued his treatment for that condition.
The sentencing judge was not persuaded on the balance of probabilities that the applicant was in fact suffering from bipolar disorder. His Honour concluded that some of the information which the applicant conveyed to Dr Walton, and upon which his opinion rested, was not to be regarded as truthful.[17] In his sentencing remarks, the judge referred to the fact that the applicant did not give any evidence at trial that he was suffering from any ‘major mood swing’ at the time Ms Liang was killed.[18] He did not regard a history of grandiosity in the applicant’s dishonesty as a sufficient basis for a conclusion that he was suffering from a bipolar disorder at the time of the offence. His Honour also concluded that there was no direct evidence of such a disorder since the applicant had been in custody.[19]
[17]R v Chalmers [2009] VSC 251, [37].
[18]Ibid [39].
[19]Ibid [40].
The applicant submitted that his Honour erred in rejecting Dr Walton’s evidence of the applicant’s diagnosis, which was not contradicted. More specifically, it was submitted that it was wrong for the sentencing judge to have drawn any conclusions from the fact that the applicant did not give evidence at the trial about his bipolar disorder in the course of giving his version of events from the witness box.
During oral argument on appeal it was conceded that, even if his Honour did err in rejecting such evidence, this was an immaterial error, as counsel had not on the plea relied upon the disorder as reducing his moral culpability under principle 1 in R v Verdins.[20] It was acknowledged on appeal that the evidence had only been relied upon to support the submission that prison would be more onerous for the applicant (principle 5). Despite rejecting the evidence of the psychiatric disorder, the sentencing judge did accept that a sentence of imprisonment would weigh more heavily on the applicant than on a person of normal health, due to the combination of his health problems (other than any mental disorder), which included sleep apnoea and chronic back pain. Consequently, counsel did not press the contention that any error in relation to the evidence of bipolar disorder affected the applicant’s sentence.
[20](2007) 16 VR 269.
Ground 5: sentence was manifestly excessive
Under the final ground the applicant submitted that the sentence of 22 years’ imprisonment with 18 years’ non-parole period for murder was manifestly excessive, given that the applicant did not have a history of violence and had demonstrated a level of remorse and that no motive was proven for the murder. To make out the submission that 22 years was manifestly excessive, the applicant referred to two cases involving the murder of a female by her male partner, R v McCullagh[21] and R v Gojanovic(No 2),[22] in each of which the offender received 20 years’ imprisonment.
[21](2003) 141 A Crim R 150.
[22][2007] VSCA 153.
Spousal murders are not to be regarded as a different and less heinous category of murder, as the recent decision of this court in Felicite v The Queen[23] makes clear. Particular focus on sentences imposed in cases involving the murder of a partner will only inform the assessment of the appropriate sentence in a particular case where the relevant circumstances make the cases properly comparable with the case at hand. Comparable cases are, of course, relevant only to the determination of the applicable sentencing range in the case at hand.[24]
[23][2011] VSCA 274.
[24]Hudson v The Queen [2010] VSCA 332; Hasanv The Queen [2010] VSCA 352.
The applicant was found by the jury to have deliberately planned to kill his de facto wife. He did so in the presence of her sleeping daughter, and subsequently buried her body in lime to destroy the evidence of his crime. He pleaded not guilty to the murder, and did not tell the authorities about the location of her grave for over a year and a half. In those circumstances a sentence of 22 years’ imprisonment was well within the range of sentences reasonably available to the sentencing judge.
We would refuse leave to appeal.
C. THE ORDER FOR FORFEITURE
On the plea, counsel for the Crown applied under s 32 of the Confiscation Act 1997 (the ‘Act’) for an order that certain items of property belonging to the applicant be forfeited on the basis that they constituted ‘tainted property’. The purposes of the Act are set out in s 1. The relevant purpose, as set out in that section, is ‘to provide for the forfeiture of property used in connection with the commission of certain offences’.[25]
[25]Confiscation Act 1997 s 1(d).
The phrase ‘tainted property’ is relevantly defined in s 3(1) of the Act as follows:
tainted property, in relation to an offence, means property that—
(a)was used, or was intended by the accused to be used in, or in connection with, the commission of the offence …
‘Property’ is defined as ‘real or personal property of every description, whether situated within or outside Victoria and whether tangible or intangible, and includes any interest in any such real or personal property’.[26] ‘Forfeiture order’ is defined as ‘an order made under Division 1 of Part 3’.[27] That Division comprises ss 32 to 34 of the Act.
[26]Ibid s 3(1).
[27]Ibid s 3(1).
Section 32(1) of the Act provides that, ‘[i]f an accused is convicted of a Schedule 1 offence, the DPP or an appropriate officer may apply to the Supreme Court or the court before which the accused was convicted of the offence for a forfeiture order in respect of tainted property’. (A ‘Schedule 1 offence’ includes any indictable offence against the law of Victoria.[28])
[28]Ibid sch 1 item 1.
Section 33 of the Act specifies, among other things, when the court may make a forfeiture order and what the court may consider in deciding whether to make a forfeiture order. It relevantly provides as follows:
33 Determination of application for forfeiture order
(1)On an application under section 32(1), if the court is satisfied that the property is tainted property in relation to the offence, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the Minister.
(2)A forfeiture order must specify the interests in property to which it applies.
(3)If an application is made under section 32(1) to the court before which the person was convicted of the offence before that court has passed sentence for the offence, that court may make a forfeiture order at the time of passing sentence and for this purpose the court may, if it thinks it necessary to do so, defer the passing of sentence until it has determined the application for the order.
(4)On an application under section 32(1) a court may, subject to Part 3.10 of the Evidence Act 2008 and any rules of court, take into account in determining the application any material that it thinks fit, including evidence given in any proceeding relating to the offence in reliance on the conviction of which the application is made and, for this purpose, the whole or any part of the transcript of those proceedings is admissible in evidence as if it were a record of evidence given on the hearing of the application.
(5)In considering whether to make an order under subsection (1) in respect of particular property, the court may have regard to—
(a)the use that is ordinarily made, or had been intended to be made, of the property; and
(b)any hardship that may reasonably be likely to be caused to any person by the order; and
(c)the claim of any person to an interest in the property having regard to the matters specified in section 50(1).
(6)A court must give priority to an application made under section 84 (restitution order) or Division 2 of Part 4 (compensation order) of the Sentencing Act 1991 in relation to the same conviction and, accordingly, may defer the determination of an application under section 32(1) until the application under the Sentencing Act 1991 has been determined.
One item of property which the judge ordered be forfeited was the applicant’s interest in the apartment in Melbourne in which he murdered Ms Liang. On the plea, counsel for the applicant advised the sentencing judge that the applicant agreed to the making of the order. His Honour accordingly announced at the end of the plea in mitigation that, since there was agreement between the parties, he would make the order for forfeiture in the form sought by the Crown.
On appeal the applicant submitted that his Honour did not have jurisdiction under the Act to order that the interest in the apartment be forfeited, as it did not fall within the definition of tainted property. The central contention was that property that was merely the location of an offence – such as the applicant’s apartment – could not be said to have been ‘used in, or in connection with’ the commission of the offence.
In the alternative, the applicant submitted that, if the forfeiture order validly extended to his interest in the apartment, the judge erred by failing to take the order into account as required by s 5(2A) of the Sentencing Act 1991.
The Crown submitted that, as senior counsel for the applicant on the plea had agreed to the making of the forfeiture order, the applicant must be taken to have conceded that the apartment was ‘tainted property’ under the Act, such that it could not now be open to the applicant to challenge the making of the forfeiture order. This submission must be rejected. Jurisdiction cannot be conferred by consent. If, on the proper construction of the Act, the apartment was not ‘tainted property’, then the power to order its forfeiture was not enlivened.
The Crown further submitted that, because the applicant did not challenge the making of the order on the plea, the Crown had been denied the opportunity to adduce evidence and advance arguments based upon such additional evidence as to why the apartment should have been included in the forfeiture order as tainted property. Therefore it was said it would be procedurally unfair to allow the applicant to raise this issue on appeal.[29] When the Crown was pressed as to what additional evidence might have been adduced, it was submitted that the applicant might have been subpoenaed to give evidence.
[29]Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, 461 [51] (Gleeson CJ, McHugh and Gummow JJ).
This submission must also be rejected. Given the lengthy sworn evidence the applicant had given at trial, in which he said that the killing was accidental and occurred in the course of consensual intercourse in the bedroom, there is no realistic possibility that further evidence from the applicant might have advanced the application for an order for forfeiture.
‘Used in connection with’
This Court has not previously had occasion to consider the correct interpretation of the phrase ‘used in connection with the commission of the offence’, as used in the definition of ‘tainted property’. Over the past two decades, however, the intermediate appellate courts of several other states have given detailed consideration to the same phrase, or close equivalents of it, in cognate statutory contexts.[30] The High Court, too, has recently expressed relevant views, although the Court did not need to decide this particular question of construction.[31]
[30]NSW: R v Hadad (1989) 16 NSWLR 476, re Crimes (Confiscation of Profits) Act 1985 (NSW) (‘Hadad’); SA: Taylor v Attorney-General (SA) (1991) 55 SASR 462, re Crimes (Confiscation of Profits) Act 1986 (SA) (‘Taylor’); DPP (SA) v George (2008) 102 SASR 246 re Criminal Assets Confiscation Act 2005 (SA) (‘George’); WA: Rintel v The Queen (1991) 3 WAR 527, re Crimes (Confiscation of Profits) Act 1988 (WA) (‘Rintel’); DPP (WA) v White (2010) 41 WAR 249, re Criminal Property Confiscation Act 2000 (WA) (‘White’) and see White v DPP (WA) [2011] HCA 20 (‘White (HCA)’).
[31]White(HCA) [2011] HCA 20.
We have found the analyses by the respective courts illuminating, and they disclose a high degree of unanimity of approach. We would respectfully adopt the following propositions which emerge from those authorities:
1. The word ‘used’ should be given its ordinary meaning of ‘employed, or made use of, for a particular end or purpose’.[32]
[32]Rintel (1991) 3 WAR 527, 529, 542; White (2010) 41 WAR 249, 257 [27]; White (HCA) [2011] HCA 20, [21].
2. The statutory phrase is of wide scope. The inclusion of the words ‘in connection with’ was plainly intended to extend the scope of the definition of ‘tainted property’ beyond circumstances where the property could be said to have been ‘used in the commission of’ the offence.[33]
[33]Taylor (1991) 55 SASR 462, 471; Hadad (1989) 16 NSWLR 476, 481D; George (2008) 102 SASR 246, 261 [57].
3. Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree.[34] It is not necessary for it to be established that there was a ‘substantial’ connection, or that the crime could not have been committed without using the property.[35]
4. The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the Court’s discretion whether or not to order forfeiture of the property.[36]
[34]Taylor (1991) 55 SASR 462, 472; DPP (NSW) vKing (2000) 49 NSWLR 727, 731 [15] (O’Keefe J) (‘King’); George (2008) 102 SASR 246, 261 [57].
[35]Taylor (1991) 55 SASR 462, 466, 471-2; George (2008) 102 SASR, 246, 262 [62]; Hadad (1989) 16 NSWLR 476, 482E; Rintel (1991) 3 WAR 527, 531.
[36]Hadad (1989) 16 NSWLR 476, 481–2; Rintel (1991) 3 WAR 527, 530.
Very often, the decisive issue will be whether the relevant property can be said to have been ‘used’,[37] since ‘use’ is (by definition) employment for a purpose. Once it is concluded that the offender ‘used’ the property at or around the time of the commission of the offence, it will usually follow that there was the requisite connection between the use of the property and the commission of the offence. Put differently, if the offender (or some other person) ‘employed or made use of’ the property for a purpose associated with the offending, then it would follow that the property was ‘used in connection with the commission’ of the offence.
[37]White (2010) 41 WAR 249, 258–9 [37]–[39].
The importance of the ‘use’ question is illustrated by cases in which the requisite connection was found to exist between the use of the property and the commission of the offence, as follows:
·the use of a yacht to monitor arrangements for the importation of drugs;[38]
·the use of a car for storage, concealment and/or transportation of drugs in connection with drug trafficking;[39]
·the use of a farm or a house to grow cannabis;[40]
·the use of cash to facilitate drug trafficking deals;[41]
·the use of (activities in) a boat or a house as a lure for intended victims of sexual assault;[42] and
·the use of a fenced property to facilitate murder, and to store the body of the victim.[43]
[38]DPP v Brauer (1991) 2 Qd R 261, 270.
[39]Hadad (1989) 16 NSWLR 476, 482F; Rintel (1991) 3 WAR 527, 533, 543.
[40]Taylor (1991) 55 SASR 462, 472; George (2008) 102 SASR 246, 263 [76]–[78]; cf DPP v Dickfoss (2011) 28 NTLR 71, 93–4 [67].
[41]King (2000) 49 NSWLR 727, 731 [16]–[17], citing Sultana v The Queen (1994) 74 A Crim R 27 and R v Polain (1989) 52 SASR 526.
[42]King (2000) 49 NSWLR 727, 732 [22], citing DPP v Garner (unreported, County Court of Victoria, Judge Kelly, 26 April 1999) (‘Garner’); King (2000) 49 NSWLR 727, 733–4 [30], citing DPP (WA) v Farley (unreported, Supreme Court, WA, Heenan J, 17 September 1996).
[43]White (2010) 41 WAR 249, 259 [39].
Express statutory provision apart,[44] the mere fact that an act is done in or on a particular property will ordinarily not suffice to bring that property within the definition.[45] That is because, as a matter of ordinary language, this could not be characterised as a ‘use’ of the property.[46] In their joint judgment in White, French CJ and Crennan and Bell JJ said:
On the face of it, the mere doing of an act in or on a property in connection with the commission of a confiscation offence, does not necessarily fit comfortably within the concept of use applied to property. The relevant ordinary meaning of the verb ‘use’ is to [m]ake use of [a thing], esp. for a particular end or purpose; utilise, turn to account.[47]
[44]Under s 146(1)(c) of the Criminal Property Confiscation Act 2000 (WA), property is ‘crime-used’ if ‘any act … was done … in or on the property’ in connection with the commission of a relevant offence: see White (2010) 41 WAR 249, 254 [15]–[16] and White (HCA) [2011] HCA 20, [33].
[45]Rintel (1991) 3 WAR 527, 542–3; George (2008) 102 SASR 246, 263 [76]–[77]; White (2010) 41 WAR 249, 257–8 [27]–[31].
[46]White(HCA) [2011] HCA 20, [21].
[47]Ibid.
It is only when the property, or some feature or attribute of it, has been turned to advantage by the offender, or enlisted to the offender’s purpose, that it will be possible to say that the property has been ‘used’. In King,[48] for example, the offending took place on board a boat but it was held that the boat was no more than the location of the offending. The boat had not been ‘employed’ for any purpose related to the offending. In Garner,[49] by contrast, the court held that the offender had used a houseboat to provide the intended victims with ‘a pleasurable environment and exciting activities’, such that the boat became ‘an efficient tool of seduction’.
[48]King (2000) 49 NSWLR 727, 735 [36].
[49]Cited in King (2000) 49 NSWLR 727, 732 [22].
Conduct after an offence is completed may also constitute a use of property in connection with the commission of the offence.[50] In White,[51] for example, the West Australian Court of Appeal held that the use of the relevant property to store the body of the murder victim was use in connection with the offence. The issue arose in the context of the commission of a murder by White on an industrial property that was leased by him.
[50]Hadad (1989) 16 NSWLR 476, 482–3; White (2010) 41 WAR 249, 259 [39].
[51]White (2010) 41 WAR 249, 259 [39].
The property was enclosed by a six foot cyclone fence, with two double cyclone metal gates at the front of the property. While the victim was at the property, and before White arrived, he arranged for the gates to be locked. After White arrived, he shot the victim in the shoulder. As the victim ran through the yard, White pursued him and fired three more times. As the victim climbed on top of the gate in order to escape, White shot him in the buttocks. The victim fell to the ground outside the property. White left the property through the gate and, as the victim lay on the ground struggling for breath, White fired a sixth shot at the victim’s head and killed him. White then dragged the victim’s body back onto the property.
McLure P, with whom Owen and Buss JJA agreed, held that the expression ‘in connection with’ required that there be ‘a link between the relevant use of, or act or omission on, the property on the one hand and the commission or facilitating the commission of a confiscation offence on the other’.[52] Her Honour concluded:
It is clear from the statutory language that the relationship between the use of, or the act or omission on (the conduct), the property and the confiscation offence does not have to be direct and immediate. However, having regard to the consequence of falling within the definition of crime-used, it is not sufficient if the relationship be merely tenuous and remote. The requisite relationship would fall between these two extremes and involve matters of degree and judgment. In considering whether the relationship is sufficiently proximate, the purpose and effect of the conduct would be relevant considerations.[53]
[52]White (2010) 41 WAR 249, 258 [31].
[53]Ibid [33].
On the facts of the case before her, McLure P held that, as intentional locking of the gates of the property was for the purpose, and had the effect, of preventing or impeding the victim departing from the property before White finished dealing with him, the use of the property facilitated the murder. Her Honour held that White’s subsequent conduct in using the land to store the body away from public view pending its disposal was also a relevant use.
Whether there has been a relevant use will depend upon the property in question and the precise way it was used. As the same property can be put to different uses, the determination of whether there is a connection between the particular use of the property and the commission of the offence will involve questions of fact and degree that need to be determined in a commonsense manner.[54]
[54]Taylor (1991) 55 SASR 462, 471–2; Sultana v The Queen (1994) 74 A Crim R 27, 31; King (2000) 49 NSWLR 727, 730–1 [14]; R v Zerafa (2003) 139 A Crim R 439, 443–5 [9]–[17]; George (2008) 102 SASR 246, 261 [57]; White (2010) 41 WAR 249, 258 [33].
In George, the Full Court of the South Australian Supreme Court was concerned with land on which was situated a shed in which cannabis plants had been grown hydroponically. Doyle CJ (with whom White J agreed) held that the composite expression ‘used … in connection with the commission of an offence’ involved practical considerations and matters of degree, such that each case would turn on its own facts.[55] His Honour held that the composite expression did not require a causal connection between the property and the offence. Nor was it necessary that the property be something which was essential or necessary for, or made a unique contribution to, the commission of the offence.[56] His Honour concluded as follows:
As a matter of ordinary language, and bearing in mind that the word defined is ‘instrument’, I consider that the definition refers to a use of property that facilitates, assists or contributes to the commission of an offence. That is a starting point, not a conclusion. The use of the property must be sufficiently significant (I realise that this is question begging) to warrant a conclusion (especially when the property is the place where the offence is committed) that the property is used in connection with the commission of the offence. This invites attention to the role that the property plays in the commission of the offence, to the extent to which the property is so used, and to how much of the property, or what part of it, is used. I doubt whether one can usefully go any further than that.[57]
[55]George (2008) 102 SASR 246, 261 [57].
[56]Ibid 262 [63].
[57]Ibid 262 [65] (emphasis added).
Doyle CJ held that the land was used in connection with the commission of the offence of producing cannabis. It could be inferred that the offender had chosen the shed ‘as a suitable place to grow the cannabis.’[58] The use of the land ‘facilitated and contributed to the commission of the offence. It was not just the place where the offence was committed.’[59] (Vanstone J dissented, holding that the property was merely the place where the crime occurred.[60])
[58]Ibid 263 [76].
[59]Ibid 263 [77].
[60]Ibid 281 [169].
At one end of the spectrum are cases where the property is deployed in an instrumental sense to commit the offence. An obvious example is the weapon that is used to inflict an injury. Land can be used to cause death or injury, such as where a domestic pool is used to drown the victim. Another example is where a beam in a ceiling of a house is used to support a rope for the purpose of hanging the victim. A further example is where the victim is thrown off a second floor balcony. These are examples of cases where an attribute or feature of the property is actively used in the commission of the offence.
At the other end of the spectrum are cases where the property is merely the passive location at which the offence is committed. An example is where a discussion takes place in the offender’s home which constitutes a conspiracy to commit an offence at another location. Another example is where, during dinner in the family home, a domestic dispute erupts spontaneously which leads to one person reaching across the table and assaulting another person. These are examples of cases where an offence is committed at the property (the home) but there is no relevant connection between the use of the property and the commission of the offence.
There will, of course, be cases along this spectrum where the question whether the requisite connection exists (between the use of the property and the commission of the offence) will be a matter of difficulty. Those cases will require a close examination of the nature of the property, its precise use, the nature of the offence that was committed and the manner, if any, in which the property was used in connection with the commission of the offence. The more passive the use of the property and the more incidental its role, the less likely it is that the requisite connection will be found to exist.
Conclusion: the property is not ‘tainted property’
In the present case, it was submitted on behalf of the Crown that the applicant had used the property in connection with the murder of Ms Liang and that the property was not merely the location of the crime. This submission was made on the following bases:
(a) the applicant planned to commit the offence at the property;
(b) the offence was committed at the property; and
(c) the commission of the offence at the property provided a means by which the applicant might avoid detection for the offence.
Of these matters, only the second was the subject of an express finding. As noted earlier, the judge was satisfied that the killing of Ms Liang was premeditated.[61] His Honour did not, however, specifically find that the applicant’s planning extended to the killing of Ms Liang at the property.
[61]R v Chalmers [2009] VSC 251, [13]–[16], [22], [27].
Counsel for the applicant submitted that there was no evidence that the applicant’s plan included a deliberate choice of location, or that the property was employed in any way in the commission of the crime. The sentencing judge found, however, that the murder was pre-meditated, having been planned over a number of days, and that it did not occur in the course of consensual intercourse. These were findings which, we have concluded, were open to his Honour on the evidence.
His Honour also found that the applicant had gone to considerable lengths to conceal the body and destroy it, and had created a cover story so that he could say that Ms Liang had disappeared. Hence, the Crown submitted, it could be inferred that the applicant had made a deliberate choice to kill Ms Liang in the privacy of the apartment. The finding that the killing of Ms Liang and the concealment of her body were pre-meditated could support the hypothesis that the applicant planned to kill Ms Liang in the apartment.
A finding that the locus in quo is premeditated would not, however, mean that the apartment was ‘used’ in connection with the commission of the offence. In our view, the applicant did not employ or utilise the property in any relevant sense. Rather, he took advantage of the fact that the apartment was the place where he and Ms Liang lived together and where he knew they would be alone together. There was nothing about the property itself which facilitated or furthered the commission of the offence. Unlike the houseboat example, the applicant had not ‘used’ the apartment to lure Ms Liang to her death. Instead, their pre-existing relationship meant that she would be present in the apartment.
Nor, in our view, was there any relevant ‘use’ of the apartment after Ms Liang had been killed. Plainly enough, the applicant took pains to avoid being seen to remove the body and, subsequently, to ensure that the body would not be discovered. But the apartment was no more than the place from which he endeavoured to make an unseen departure. He did not, in any active sense, utilise the property, or any feature of it, in removing the body. Merely to carry the body downstairs from the apartment to the carpark could not be described as a ‘use’ of the apartment.
This is not, in our view, the kind of case which Parliament had in contemplation in enacting the definition of ‘tainted property’.
The position might well have been different if the trial judge had found that the applicant had chosen the apartment as the location for the killing because of particular features which he utilised. No such finding was made, however, because the forfeiture order was made by consent. The judge, having seen and heard the applicant give evidence, would have been in a position to consider whether such an inference should be drawn but he was not asked to do so. We do not consider that it would be either possible or appropriate for that task to be undertaken now.
We would, therefore, grant leave to appeal against the forfeiture order, allow the appeal and vary it by deleting paragraph 1 of the schedule to that order which relates to the applicant’s apartment. The effect of the making of such an order is that the sentencing judge did not err in failing to take into account the forfeiture order in sentencing the applicant to 22 years’ imprisonment with a non-parole period of 18 years.[62] That sentence is affirmed.
[62]The applicant did not complain about the other items that were the subject of the forfeiture order. Those items did not have any material value.
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