| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0248 |
| PAUL ROSS CHARLTON | Applicant |
| v | |
| THE KING | Respondent |
---
JUDGES: | PRIEST, WALKER and BOYCE JJA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 March 2025 |
DATE OF JUDGMENT: | 25 March 2025 |
MEDIUM NEUTRAL CITATION: | [2025] VSCA 46 |
JUDGMENT APPEALED FROM: | DPP v Charlton (No 2) [2023] VSC 707 (Sentence) |
---
CRIMINAL LAW – Appeal – Conviction – Murder – Whether direction that an ‘unrealistic possibility’ is not a reasonable doubt diminished the criminal standard of criminal proof – Beyond reasonable doubt explained in terms prescribed by legislature – Whether verdict of the jury unreasonable or cannot be supported having regard to the evidence – Defence case that an intruder killed the deceased – Open to the jury to reject hypothesis of intruder – Leave to appeal refused.
Jury Directions Act 2015, ss 63, 64.
Farshchi v The King [2024] VSCA 235; R v Dookheea (2017) 262 CLR 402.
---
| Counsel | |||
| Applicant: | Mr PJ Smallwood and Ms A Dixon | ||
| Respondent: | Ms E Ruddle KC with Mr G Buchhorn | ||
Solicitors | |||
| Applicant: | Galbally Parker Lawyers | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
•
PRIEST JA
WALKER JA
BOYCE JA:
Introduction
At 11.19 pm, on Saturday, 21 April 2007, Paul Charlton, the applicant, then aged 53 years, called the ‘000’ emergency services number and reported that he had found his domestic partner, Joanne Howell, then aged 52 years, lying at the bottom of the stairs in their unit in Poath Road, Hughesdale, unresponsive and cold to the touch.
When ambulance paramedics arrived at the premises at 11.29 pm, they pulled back Ms Howell’s top to apply defibrillation pads so as to establish if there was any cardiac electrical activity, but there was none. Ambulance personnel decided that any attempt at resuscitation would be futile — Ms Howell was obviously deceased — so no attempt was made.
Dr Michael Burke, a forensic pathologist with the Victorian Institute of Forensic Medicine, attended the scene at about 2.00 am the following morning, 22 April 2007, and inspected Ms Howell’s body. He saw that a large amount of blood had soaked into the posterior aspect of her hair; she had two black eyes; and florid petechial haemorrhages around the upper eyelids. Later that morning, at 7.45 am, Dr Burke performed an autopsy on Ms Howell’s body. He observed that she had two black eyes, secondary to an impact to the back of her head which had caused contrecoup contusions to the brain. There was an eight centimetre ‘horseshoe’ fracture to the back of the skull, reflecting the fact that significant force had been applied to the back of the head. The impact to Ms Howell’s head caused haemorrhages to various parts of the brain. There were also ligature marks to the neck, indicating that Ms Howell had been strangled. The fact that there was ‘very minor’ bruising associated with the ligature marks suggested that Ms Howell was not struggling when strangled. Dr Burke expressed the opinion that the blow to the head came first, and then Ms Howell was strangled. He determined that the cause of death was head injury and ligature strangulation.
When first spoken to by police, the applicant told them that he and Ms Howell had argued earlier in the evening. He said that he then went out to walk the dog, and when he arrived home, he found Ms Howell dead at the bottom of the stairs. The applicant claimed that the door leading from the garage into the lounge room of the house had been broken open.
Police released the applicant pending further investigation. More than 13 years later, however, in January 2021, police charged the applicant with Ms Howell’s murder.
Throughout June and July 2023, the applicant was tried for Ms Howell’s murder in the Supreme Court, the prosecution alleging that he killed her at approximately 9.15 pm on 21 April 2007. The defence case was that, while the applicant had been at home earlier that evening, he had left to walk the dog and was still doing so when Ms Howell was killed. Among other things, the defence contended that the prosecution could not exclude the reasonable possibility that another person — Ms Howell’s former partner, Mark Spiers; her brother, Steven Gray; or an unknown intruder — was responsible for killing her.
On 6 July 2023, the jury empanelled to try him found the applicant guilty of murder. Following a plea hearing on 8 August 2023, on 29 November 2023 the trial judge sentenced the applicant to 24 years’ imprisonment, with a non-parole period of 19 years.
The applicant now seeks leave to appeal against his conviction on two grounds:
1A substantial miscarriage of justice resulted from what the jury was told about proof beyond reasonable doubt by the trial prosecutor (in his closing address) and the trial judge (in giving the direction provided for by s 64(1)(e) of the Jury Directions Act 2015 (Vic)).
2The verdict of the jury is unreasonable or cannot be supported having regard to the evidence.
For the reasons that follow, we would refuse leave to appeal.
The evidence at trial
The following overview, in roughly chronological order, is drawn from the evidence in the trial.
Around 1992, Joanne Howell, of whose murder the applicant was to be convicted, met Mark Spiers — whom the defence at trial presented as an alternative suspect in Ms Howell’s murder — and they formed an intimate relationship which lasted for a number of months. During the course of their relationship, Spiers lived with Ms Howell and her adopted daughter, Tanya-Lee (‘Tahnee’) Stevenson, for a short time. Spiers gave evidence that, after their intimate relationship ended, he and Ms Howell remained good friends for several years. In 1993, a person by the name of Sally Boyden took out an interim intervention order against Spiers.
Tahnee Stevenson is the biological daughter of Ms Howell’s deceased sister, Simone Mole. She regarded Joanne Howell as her mother and called her ‘Mum’. Ms Stevenson gave evidence that when she was about seven or eight, around 1996 to 1997, Mark Spiers was her Mum’s boyfriend. The relationship lasted only a couple of months. Spiers lived with them for part of that period. On one occasion, Ms Stevenson witnessed Spiers push her mother on the shoulders. Years later, in late January 2007, her mother told her that she had received a visit from Spiers. Her mother was very upset about Spiers showing up and she told him to leave.
Tahnee Stevenson further gave evidence that she met Steven Gray, Ms Howell’s brother — according to the defence theory at trial, another alternative suspect in Ms Howell’s murder — on two occasions. The second occasion was at her school when she was aged 14 or 15. (Police Law Enforcement Assistance Program (‘LEAP’) database records showed that this encounter occurred on 10 May 2005.) Gray approached her and asked whether she knew a ‘Tanya Stevenson’, who would be a year above her. She responded by saying that she did not know anyone by that name and she made an excuse to go back inside the school gates. Ms Stevenson’s evidence was that Gray told her not to tell Ms Howell that he was looking for his niece. (LEAP records contained a different version; that is, that Gray told Ms Stevenson that she was not to tell Ms Howell that he was talking to her.) Ms Howell made a statement against Gray concerning his visit to the school, which, on 15 September 2006, led to Gray, a registered sex offender, being convicted of an offence related to loitering near the school.[1] Under cross-examination, Ms Stevenson said that her Mum had told her that Gray had ‘a deep, unnatural infatuation with his sisters’, and had stalked her after he was released from prison for sex offences.[2] Ms Howell told her that she had awoken one night with Gray in her bed. Gray had also stalked Ms Stevenson’s Aunt Sally. Her Mum had told her these things when she was aged 15 or 16 to give her an understanding of why Ms Howell needed to protect her from Gray.
[1]The informant, Detective Brett Smith, gave evidence that Gray received an 18 month community correction order for this offending, with conditions that he perform 100 hours’ unpaid community work and undertake a sex offender program.
[2]There was evidence that Gray had been convicted of sex offences against a seven year old female child and had been sentenced to a total effective sentence of five years’ imprisonment for the offending. It was alleged that, on 5 September 1993, he offended against the daughter of a female acquaintance by getting into the child’s bed, licking her vagina and penetrating her vagina with his penis.
Mark Spiers gave evidence that, about 12 to 14 months after the relationship with Ms Howell ended, he commenced a relationship with Ms Howell’s sister, Robyn Sutherland-Howell. According to Spiers, this put the two sisters at loggerheads with each other. In May 1996, Ms Howell took out an interim intervention order against Spiers which prohibited him from contacting her or being within a hundred metres of her home or the local primary school. She also took out an interim intervention order against her sister, Ms Sutherland-Howell. Spiers’ evidence was that the intervention orders were taken out by Ms Howell as a reaction to him commencing a relationship with her sister. In June 1996, Ms Howell took out a final intervention order against Spiers. Spiers gave evidence that he did not attend court in relation to the intervention orders taken out against him by Ms Howell, so that her allegations against him were never tested.
In March 1997, Ms Sutherland-Howell was also granted an interim intervention order against Spiers. No final order was made, however, and the application was struck out the following month. In 2001, Ms Sutherland-Howell applied for a further intervention order against Spiers, the order being made final in August 2001. Once more, Spiers’ evidence was that the allegations made by Ms Sutherland-Howell were not tested.
Ms Stevenson’s evidence was that around 2005, when she was aged 15 or 16, she moved out of Ms Howell’s Poath Road unit. She said that while she had lived at the unit the plants in the garden bed in front of the lounge room window which faced the street would get trampled quite frequently. Ms Howell’s friend, Howard Williams, also gave evidence that she told him that the plants underneath her lounge room window had been trampled.
The relationship between the applicant and Ms Howell commenced in 2006. Rosalind Macdonald was an acquaintance of Ms Howell. The applicant was a mate of Ms Macdonald’s husband, Tom, and had been best man at their wedding. Ms Howell mentioned to Ms Macdonald that she was having troubles with her computer, and Ms Macdonald put her in touch with the applicant. Ms Macdonald’s evidence was that it was probably around mid-to-late November 2006 that the applicant moved into the Poath Road unit with Ms Howell.
According to Spiers’ evidence, around October or November 2006 — that is, around the time that other evidence suggested that the applicant moved in with Ms Howell — he bumped into Ms Howell’s mother in the street. He had a cup of tea with her at her home, and, having obtained Ms Howell’s address from her mother over tea, drove to the Poath Road unit and knocked on the door. Spiers gave conflicting accounts of the subsequent encounter. Thus, he told police in 2007 that he was met at the door by the applicant (this account being consistent with what the applicant told police). Spiers’ account in court, however, was that he was greeted by Ms Howell and spoke to her for a little while before the applicant arrived. Further, Spiers initially gave evidence that the encounter was two weeks to a month before Ms Howell’s death, but later seemed to accept that it may have been six months before her death.
There was also evidence that Ms Howell at some point told a friend, Howard Williams, that she had received an ‘unexpected visit’ from Mark Spiers late in 2006. When she answered her door she was ‘shocked’ to see Mr Spiers, of whom she was ‘petrified’. As we have mentioned, Ms Stevenson gave evidence that, in around late January 2007, Ms Howell had told her about Spiers’ visit. Ms Howell said that she had asked Spiers to leave, and that she was very upset about him showing up. Ms Stevenson described her mother as ‘hysterical’.
In early December 2006, the applicant had a discussion with Claire Bamber and Toni Mitchell about his relationship with Ms Howell. Ms Bamber gave evidence that the applicant told them how much he loved Ms Howell, and said he could not understand why Ms Howell acted in the way that she did, with her terrible mood swings. He told them that Ms Howell had slapped him across the face, and that Ms Howell was making noises about stopping him from living with her. Ms Mitchell gave a similar account to Ms Bamber, and said that the applicant was very upset during this conversation.
There was evidence that Ms Howell and the applicant travelled to Horsham and stayed with a friend of Ms Howell’s, Howard Williams, at his house for the 2006-2007 New Year. When they arrived, they were arguing about the applicant’s driving. According to Mr Williams, everything settled down, however, and it was a good weekend. At the end of their stay, Ms Howell and the applicant left together, only to return 20 minutes later, again arguing. The applicant told Mr Williams that Ms Howell had complained about the applicant purchasing the wrong hamburger. In response, the applicant threw the hamburger in Ms Howell’s lap, and she then threw it in his face. Mr Williams said he spoke separately to Ms Howell. She told him that the applicant had driven like a madman, and for that reason was worried about travelling back to Melbourne with him. Ms Howell and the applicant left together, however, and Ms Howell rang Mr Williams later that day to say that they had arrived in Melbourne safely. About a week later, Mr Williams rang the applicant, who sounded quiet on the phone and told Mr Williams he did not think he could continue with the relationship with Ms Howell, because he could not get anything right.
In early April 2007, Claire Bamber received a telephone call from Ms Howell, who sounded a little upset, started to cry and told Ms Bamber that she had a blood nose. Ms Howell told her that the applicant had accidentally hit her in the garage. Ms Bamber’s daughter, Jade Bamber, gave evidence that, later that day, she saw Ms Howell and the applicant at a nearby shopping centre holding hands. That same day, Toni Mitchell spoke to Ms Howell on the telephone. Ms Howell told her that she and the applicant had had a big fight, but that it was all okay, and that there was no need for concern.
Also in April 2007, Ms Howell contacted her property manager, Betty Giourtus, stating that she needed the internal garage door at the rear of the garage of the Poath Road unit to be fixed because she did not feel safe. Ms Giourtus gave a statement to the police on 27 April 2007, in which she said that Ms Howell had told her that she did not feel safe, and she believed that someone had tampered with her door.
On 10 April 2007, Ms Howell had a car accident. She suffered injuries, including bruising of the ribs, which left her in pain up until the time of her death. Some time shortly after this, the applicant had a conversation with Catherine Tormey, in which he referred to Ms Howell getting a blood nose. After stating that it was an accident, the applicant said that he and Ms Tormey should not be surprised if he and Ms Howell were no longer together in a few weeks, because in Ms Howell’s eyes he could not do anything right. The applicant also said that, because of the accident that caused the blood nose, he and Ms Howell had not been talking much.
On Sunday, 15 April 2007, Ms Howell and the applicant went to Rosalind Macdonald’s house for dinner. According to Ms Macdonald, the two seemed happy enough.
A few days later, on Thursday, 19 April 2007, Toni Mitchell received a call from Ms Howell, who was very distressed and crying. Ms Howell told Ms Mitchell that she had had enough, and wanted to come over. When she arrived at Ms Mitchell’s home, Ms Howell told her that she could not ‘live like this anymore’. She said she had had it and wanted the applicant out. When Ms Mitchell asked Ms Howell if she only said this because she and the applicant had been fighting, Ms Howell responded, ‘No mate, this is it, this is the end, I want him out’. Ms Howell also told Ms Mitchell that she had told the applicant that he had to leave. Earlier that day, the applicant had driven in a manner that upset Ms Howell, and the two had an argument as a result.
On Friday, 20 April 2007, Ms Bamber drove Ms Howell to work. Ms Howell told Ms Bamber about the driving incident the previous day, and stated that the applicant was an ‘arsehole’, was mean, and that she hated him. She also told Ms Bamber that she had asked the applicant to leave the house the previous evening, but that he would not listen. That evening, Ms Bamber picked up Ms Howell from work and they initially went back to Ms Bamber’s house. Ms Howell said she was not in a hurry to get back home, and that she and the applicant had not spoken since the driving incident the previous evening. Ms Bamber took Ms Howell to her house, and then back home to the Poath Road unit, where they watched a documentary together with the applicant about making coffee. Ms Bamber stayed until around 10.00 pm. She said that there were no arguments between Ms Howell and the applicant while she was present. At the time Ms Bamber left, Ms Howell was still complaining of soreness in her ribs from the car accident 10 days previously.
Catherine Tormey gave evidence that she met Joanne Howell through work in 1991. They were ‘very close’ and would talk weekly. On 21 April 2007, the day Ms Howell was killed, Ms Tormey went to Ms Howell’s home at about 10.00 am. Ms Howell was ‘pale’ and ‘shaky’. She said that she loved the applicant but wanted him out of the house. While Ms Howell and Ms Tormey were talking in the kitchen, the applicant walked in. Ms Howell told him that she wanted him out of the house in four weeks. The applicant responded with a ‘Heil Hitler salute’. Ms Howell then told the applicant to leave them alone and he left and went upstairs. In the conversation that followed, Ms Howell told Ms Tormey that she had falsely told the applicant that she was ending the lease on the unit because she was moving to Perth.
After having left Ms Howell’s unit, Ms Tormey telephoned her because she saw a car in the area that she thought was for sale. She spoke to both Ms Howell and the applicant about coming to look at the car. When it became apparent to her the car was not for sale, Ms Tormey telephoned Ms Howell back, but the applicant arrived soon after. When the applicant arrived, he and Ms Tormey had a conversation about his relationship with Ms Howell. Ms Tormey told the applicant that Ms Howell was serious about wanting him out of the house. Ms Tormey offered to make arrangements for the applicant to stay with her ex-partner, for which the applicant expressed his gratitude. The applicant told Ms Tormey that he felt as though he could not do anything right, but that he still loved Ms Howell. Ms Tormey told the applicant he had to get out of the house. The applicant then showed Ms Tormey a text message from Ms Howell to him three days earlier, in which Ms Howell said she loved him. He referred to Ms Howell having given four weeks’ notice on the lease of the Poath Road unit. Ms Tormey described the applicant as ‘upset’ and ‘probably flat’ during the conversation, but not in an angry sense.
Shortly before 1.00 pm, Ms Tormey picked up Ms Howell and drove her to a nail appointment. Ms Howell told Ms Tormey that she had asked the applicant to move his belongings into the spare room. She also told Ms Tormey that she wanted to walk home after the nail appointment to clear her head. Lisa Phan dealt with Ms Howell at the nail salon. She suggested that when Ms Howell attended at the salon, she was not herself and was wearing plain clothes which was unusual. Ms Howell spoke about her recent car accident and all the painkillers that she was on, but she did not speak about the applicant. Three weeks earlier Ms Howell complained to Ms Phan about the applicant pressing a button when she was taking money from an automated teller machine. Ordinarily, Ms Howell did not talk much about her family or her partner.
Later that afternoon, Ms Tormey spoke to Ms Howell on the telephone on two further occasions. In the first conversation, Ms Howell told Ms Tormey that the applicant had moved his stuff into the spare room, and that he had put an electric blanket on Ms Howell’s bed. Ms Howell declined an offer from Ms Tormey to come over for dinner, saying she would not be good company and did not feel up to it. In a later call, Ms Howell again declined Ms Tormey’s invitation to come over for dinner.
Sometime around mid-afternoon that day, Rosalind Macdonald received a phone call from Ms Howell. Ms Howell sounded like she was crying and stated that she had given the applicant 30 days to leave the house. She said that the applicant had been acting like ‘an absolute prick’ over the last few weeks, and did not want to spend the rest of her life with him. During this conversation, Ms Howell requested that Ms Macdonald and her husband, come over to help move a double bed into the spare room for the applicant. Ms Macdonald suggested this was not a good idea, however, because the applicant would never move out.
Howard Williams gave evidence that he had known Ms Howell for 20 years when she died. They were friends, and would speak every two or three weeks. He spoke to her by telephone at 8.00 pm on Saturday, 21 April 2007. Ms Howell, who sounded ‘scared’ and ‘nervous’, told him that she had given the applicant 30 days to move out because she could not live with him any more. She said that the applicant could be a ‘bastard’ but she still loved him. As we have mentioned, around the time of the 2006-2007 New Year, Mr Williams had witnessed Ms Howell and the applicant argue over his driving and over a hamburger order. The applicant had told Mr Howard that he did not think he could continue in the relationship because ‘he couldn’t do anything right’.
As we have indicated, Mr Williams also gave evidence that Ms Howell told him at some point that she had received an ‘unexpected visit’ from Mark Spiers late in 2006. When she answered her door she was ‘shocked’ to see Mr Spiers, of whom she was ‘petrified’. Under cross-examination, Mr Williams said that Ms Howell had also said that she had ‘issues’ with her brother, Steven Gray. Mr Gray ‘had a reasonably significant criminal history’ that involved ‘sexual offending’. He had turned up at Ms Howell’s daughter’s school in 2005, and both Ms Howell and her daughter had made statements to police about him. Ms Howell also told Mr Williams close to the time of her death that flowers under her window had been trampled, and she was afraid that someone was watching her. Further, as we have mentioned, Mr Williams also gave evidence that Ms Howell told him that the plants underneath her lounge room window had been trampled. During his cross-examination, Mr Williams agreed that he told police in 2007 that Ms Howell showed him the trampled plants when he visited her in the week before her death.
Raj Singh gave evidence that he lived next door to the unit in which Ms Howell resided. On Saturday, 21 April 2007, he was watching a movie with his partner, Kylie Williams, and a friend, Amanda Burgess, when, at approximately 9.15 pm, he heard a loud noise come from Ms Howell’s unit. Kylie Williams and Amanda Burgess both gave evidence that the noise was a ‘dull thud’, which Kylie Williams said was loud enough for Raj Singh to stop the movie and ask, ‘What was that noise?’.
Nicholas and Zeta Locke were neighbours to the rear of Ms Howell’s unit. They both gave evidence of opening their front and back doors to air out their unit after cooking a meal on the night of 21 April 2007. Neither of them could recall hearing anything from Ms Howell’s unit on the night. Both Mr and Mrs Locke gave evidence of previously having heard arguments at Ms Howell’s unit. Ordinarily, it was Ms Howell’s voice that they heard on these occasions.
Ann Raleigh lived to the side of Ms Howell’s unit, a driveway separating their homes. Ms Raleigh gave evidence that, on the evening of 21 April 2007, she arrived home between 9.00 and 9.30 pm. She said that around 30 minutes after she arrived home, she was in her rear garden when she heard a female voice — which she did not recognise — at an elevated pitch simultaneously with a bang or a thud. Ms Raleigh said she heard more than one word, but she could not make out what was said. Her evidence was that these simultaneous sounds were the only unusual things she heard or saw that evening.
Nathan Bell, a ‘000’ emergency services operator, was working on the night of 21 April 2007, when he received a call from the applicant at 11.19 pm. A recording of the call was played to the jury. The applicant told Mr Bell he had returned to the unit two minutes previously and had found his ‘girlfriend’ at the bottom of the stairs, not breathing, ‘cold’ and with ‘blood all over her face’. Mr Bell then transferred the call to the ambulance service. The applicant told the operator that the ‘side door’ had been ‘kicked in’, and that his girlfriend had ‘no pulse’.
Martin Dix, a paramedic, arrived at Ms Howell’s Poath Road unit at 11.29 pm. Ms Howell was apparently unconscious and supine at the bottom of the stairs just inside the front door. Both her eyes were bruised, black and swollen. There was a copious amount of blood on her face and a pool of blood near the right side of her head. Her skin was cold and cyanosed. Paramedics applied defibrillation pads to Ms Howell’s torso, but, since there was no electrical activity present, determined that it would be pointless to attempt resuscitation.
Leading Senior Constable Matthew Sonogan was on duty at Oakleigh Police Station on 21 April 2007 when, at 11.22 pm, he receive a call to attend at the Poath Road unit. When he did so, other police and ambulance officers were in attendance. Ambulance officers stated that Ms Howell was dead. Upon being requested to do so, the applicant exited the unit and stood outside with LSC Sonogan. The applicant asked to enter the garage to obtain a bottle of water from the fridge and opened the front garage door with a remote control in his left trouser pocket to do so. (Evidence given by another officer was that the front door of the garage, which permitted entry from the street into the interior of the garage, was not a roller door, so much as a ‘tilt’ door.) When he did so, he was holding a hands-free telephone in his right hand. Around this time, the applicant told LSC Sonogan that he left the premises at about 9.20 pm to walk the dog, returning at 11.30 pm. When he left, Ms Howell was watching television in the main bedroom upstairs. The applicant said that, upon returning, he entered via the front garage door, and then through the door that leads from the garage into the lounge area. At 1.40 am, other police arrested and cautioned the applicant.
Detective Senior Constable Karen Porter arrived at the Poath Road unit at approximately 12.15 am on 22 April 2007, and proceeded to make notes and take photographs. The applicant was placed under arrest at about 1.40 am, and a record of interview was conducted with him by police at Oakleigh Police Station at around 2.00 am. Dr Burke, the forensic pathologist, attended the crime scene at about the same time, to examine Ms Howell’s body. He performed a post mortem examination later that morning. At approximately 2.20 am, Detective Porter provided a briefing to the Homicide Squad, including information she had obtained about Spiers from the LEAP database.
Senior Constable Anthony Barro conducted a record of interview with the applicant at Oakleigh Police Station at 2.00 am on 22 April 2007. Among other things, the applicant told police that Ms Howell had kicked him out of the main bedroom on the afternoon of the previous day and he had moved his belongings into the spare room. After he arrived home from shopping the previous evening at 8.15 or 8.30 pm, he put on a movie while Ms Howell was in the kitchen. The applicant told police that Ms Howell ‘cracked the shits’ and grabbed the television remote control and threw it outside into the courtyard because she did not want to listen to what he was saying and did not want to watch television. They then argued, but it was not physical. The applicant said he then went into the courtyard to retrieve the remote control but could not find one of the batteries. When he came back the dog was scratching at the lounge room door. He then obtained a plastic bag and latex gloves (to collect any dog excrement) and took the dog for a walk, leaving at 9.15 to 9.30 pm.
The applicant told police that he walked the dog for a bit over an hour — he walked the dog every night, usually for around an hour — and when he returned and entered the unit through the garage, he noticed the door frame was broken. He then pushed the door open and saw Ms Howell lying on the floor, her breasts exposed and her pants pulled down to mid-thigh. (He told police that he pulled up Ms Howell’s pants just before police and ambulance arrived.) The applicant said he tried to rouse her but he could not hear a heartbeat and she felt cold. When he tried to feel for a pulse he could not feel one through the latex gloves, so he took the gloves off. He then got the telephone but it had blood all over it, so went and washed his hands and threw everything in the sink. When he grabbed the phone he called ‘000’ straight away before starting ‘CPR’. The applicant also recounted an incident that occurred in October or November 2006 when an ex-partner of Ms Howell, ‘Mark’, arrived unexpectedly at the unit and she told him to leave immediately. The interview was suspended at 4.07 am.
Sergeant Rodney Oldfield, a crime scene examiner, arrived at the unit at around 3.30 am and conducted various crime scene examinations, including instructing others to take photographs. These photographs and a video of the crime scene were tendered and played to the jury. Sergeant Oldfield inspected Ms Howell’s body, which was lying diagonally on the floor in the entrance foyer inside the front door of the unit. Ms Howell’s pants and underwear were pulled halfway down her buttocks, and her socks were pulled down over her heels. Her cardigan was partially unbuttoned and showed no signs of damage. A handwritten letter addressed to the applicant, and a television remote control with a missing battery, were found on a coffee table in the lounge room (another battery to the remote control being found outside in the courtyard garden bed).
Photographs and a plan tendered in evidence showed that the unit and the garage were part of the one structure. The garage had three doors, two external and one internal. Hence, egress from, and ingress to, the garage could be made through the ‘front’ garage ‘lift-a-door’ — designed for vehicular access — or through a conventional door at the rear of the garage adjacent to an enclosed courtyard. The internal garage door gave a person access from the interior of the garage into the lounge area of the unit. Access to the enclosed courtyard was permitted either by the rear external garage door, or through a glass sliding door at the rear of the unit. There was no gate or other access from the courtyard to the nature strip behind the property.
Sergeant Oldfield’s evidence was that the door between the lounge room and garage showed damage, but there were no other signs of violence in the premises. Blood was found on the handle of the refrigerator in the kitchen. Latex gloves and a blue plastic bag were found in the laundry bathroom, with no blood observed in the vicinity. The staircase showed no unusual signs indicative of a fall. In the outside courtyard the clothesline and clothes appeared undisturbed, and the creeper vine on the fence appeared intact. Chairs in the courtyard showed no signs of having been stepped on. An inspection of the garage revealed the front garage door was undamaged, and, apart from the internal door, the garage showed no signs of violence or disturbance. Detective Porter gave evidence that the rear door leading to the courtyard ‘was shut but unlocked’. Sergeant Oldfield explained that the front garage door was a ‘lift-a-door’, not a ‘roller door’. The door gets pulled from the top on a hinge, and about three-quarters of the way up ‘it pulls itself up and the bottom of it will come up’, so that it will ‘tilt up’.[3]
[3]See also Detective Smith’s evidence concerning the operation of the door, summarised at [53] below.
Somewhere between 3.30 am and 3.55 am, having learned that Ms Howell had taken out an intervention order against Spiers in 1996, Detective Porter attended Spiers’ home in Oakleigh South with another police officer. Statements were taken from Spiers and his housemate Charles Connell (although Connell refused to sign his statement at the time).
Mark Spiers and Charles Connell both gave evidence. They testified that, throughout the afternoon of Saturday, 21 April 2007, they were at the Sandbelt Hotel, leaving at 7.00 pm. They arrived home somewhere between 7.30 and 8.30 pm, and Connell went to bed. Connell said that at this time, as far as he knew, Spiers was in his bedroom. Connell gave evidence that he was an extremely light sleeper and said that he did not hear anything to indicate that Spiers had left the house that night. He said that he did bang on Spiers’ bedroom door at approximately 3.00 am to see if he wanted to go to the casino, but Spiers did not want to do so. Connell acknowledged that he had been intoxicated on 21 April 2007 as a result of having spent many hours drinking at the hotel.
Guillermo Baez, a colleague of the applicant, stated that at about 11.00 or 11.30 am on Sunday, 22 April 2007, he noticed that he had missed a telephone call from the applicant. He tried to call the applicant back twice that afternoon before the applicant returned his call some time before 6.00 pm. The applicant told Mr Baez that he had had an argument with Ms Howell and returned from walking the dog to find Ms Howell dead.
Margaret McNaught, a fingerprint technician, attended the crime scene shortly after midday on 22 April 2007 and collected fingerprint evidence. Ultimately, only fingerprints matching those of the applicant and Ms Stevenson were identified. DNA sampling was also conducted by police at the crime scene, which included samples being taken from Ms Howell’s body and her clothing.
Detective Senior Constable Brett Smith, the informant, conducted a second record of interview with the applicant at the Homicide Squad at 1.37 pm on 22 April 2007, whilst the crime scene investigations were continuing. Without recapitulating the whole of the interview in detail, the applicant told police that he found Ms Howell when he arrived home; that he found the phone and called 000, and was directed to start CPR, which he did; and that Ms Howell was slippery as she was covered in blood so he went to the bathroom to rinse his hands and take off the latex gloves. He said he left for the walk about 9.30 pm, and could have been out for about two hours, getting back about 11.15 pm. The applicant said he left the house through the front garage door, and returned the same way, using a remote control. When he left he locked the internal door between the lounge room and garage. He had a key with him to get back into the lounge room door from the garage. The applicant told police that, in order to leave via the garage, he pushed a button on the inside of the garage which opens the external tilt-up door. There is then a 90 second or two minute delay before the tilt-up door shuts itself automatically.
The applicant told police that his relationship with Ms Howell was generally pretty good but there were times when they had minor arguments. Relationship issues had flared up again on Saturday morning, but he did not know why. Ms Howell said she wanted some space and wanted him to move into the spare bedroom. The applicant told police that after he returned from shopping on Saturday night she was in a bad mood, so he went to watch a movie. After he told Ms Howell he did not want to argue, she grabbed the television remote control and threw it outside. When he came back inside from collecting the remote control, Ms Howell went upstairs. Since the dog started scratching a few minutes later he decided to take it for a walk. The applicant confirmed that a number of letters found at the crime scene from Ms Howell to the applicant — and which subsequently were tendered in evidence at trial — were in Ms Howell’s handwriting. Finally, the applicant denied any involvement in the death of Ms Howell. The interview concluded at 3.40 pm.
In the days and weeks following Ms Howell’s death further investigations were conducted. Detective Smith gave evidence that, on Monday, 23 April 2007, inquiries were made of local businesses for closed circuit television (‘CCTV’) footage. Significantly, the following day, 24 April 2007, he and other police went to the Poath Road unit and carried out an experiment involving the garage tilt-up door. Police opened the garage door three times, and found that the door remained open for between 47 and 48 seconds before it commenced to close. The door then took a minute to close.
Other aspects of the investigation involved police speaking to Steven Gray about his sister’s death on 24 May 2007. More recently, the informant, Detective Sergeant David Woolfe, attached to the Homicide Squad, the ‘lead investigator’ after the investigation into Ms Howell’s murder was re-opened, arranged for the existing DNA evidence obtained at the crime scene to be compared to Gray’s DNA. Detective Woolfe also undertook a review of Ms Howell’s diaries from 2002 to 2007 — the evidence suggested that her diary-keeping was meticulous — and her telephone records for April 2007 were obtained. Defence counsel cross-examined Detective Woolfe in moderate detail about investigations undertaken by police in relation to Spiers and Gray. The cross-examination concerning Gray included the elicitation of an entry in the LEAP to the effect that Gray was a ‘persistent offender’.
Aimee Pollett, a forensic officer with the Victoria Police Forensic Services Centre, gave evidence interpreting the results of DNA testing on samples gathered from the crime scene. Among other things, she testified that, in relation to a DNA profile detected on Ms Howell’s cardigan, the profile was ‘more likely if Steven Gray is not a contributor’. Test results supported there being at least three contributors to a mixed DNA profile in a sample taken from ‘the outer surface of upper-back panel and upper-front panel’ of Ms Howell’s underpants: Ms Howell, the applicant and another male. If the applicant is assumed to be the first male contributor, ‘the DNA evidence is four times more likely if Mr Gray is the second contributor’, so that there was ‘slight support’ for the proposition that Gray was the second contributor. Ms Pollett explained that the results indicated that in a random sample of 58031 males, ‘14117 of them would be equally as likely as Mr Gray’ to fit the profile obtained. In other words, one in four males in the population would be expected to have the profile. If there were ‘80 people in the room, the expectation would be 20 people would fit the bill’. It was not possible to say when the DNA was deposited.
The prosecution case
In his final address to the jury, senior counsel for the prosecution submitted that Ms Howell died as a result of a deliberate, conscious and brutal attack. Importantly, the evidence showed that, right up until the time of her death, there was increasing conflict and acrimony between Ms Howell and the applicant. By the time of her death, Ms Howell had reached a point where she wanted the applicant gone from her home. Indeed, the day she was killed, she had said as much to the applicant in front of Ms Tormey. The prosecution contended that the state of the relationship, and the stance that Ms Howell had adopted, meant that the applicant had a motive to kill her. No other person had a motive to do so.
Moreover, the prosecution contended that the applicant had the opportunity to kill Ms Howell, there being no realistic opportunity available to others to do so. Various aspects of the crime scene put paid to the notion that there had been an intruder, as did the lack of any evidence of a struggle. Other than the thud heard by Mr Singh, Ms Williams and Ms Burgess, no one heard any noises coming from Ms Howell’s unit at the relevant time. (The prosecution suggested that Ms Raleigh’s evidence that she heard a woman’s voice simultaneously with a loud bang or thud related to something other than the circumstances of Ms Howell’s death.)
The prosecution argued that the evidence was inconsistent with any reasonable possibility that Spiers, Gray or some other unknown intruder was responsible for the killing. In light of the state in which the unit was found, and the state of Ms Howell’s body when paramedics arrived, it was difficult to contemplate that an intruder could have broken into the Poath Road unit for the purposes of doing anything other than committing a murder.
Counsel for the prosecution contended that, having regard to the relationship between Spiers and Ms Howell, it was not rational or reasonable to conclude that Spiers killed Ms Howell. Any suggestion by the defence that Spiers was the killer was a ‘red herring’, and any conclusion to that effect would be ‘fanciful’. Equally, in relation to Gray, the prosecution contended the evidence demonstrated that he was completely estranged from Ms Howell, and there had been no contact since 2005. Furthermore, the evidence concerning Gray’s relationship with Ms Howell, and his criminal history, did not fit the kind of animosity which must have attended the killing. And so far as the possibility of a stranger committing the crime was concerned, the prosecution pointed to the fact that no foreign fingerprints were found at the Poath Road unit. The DNA evidence of Ms Pollett was as ‘dull as dishwater’, and had no significance to any issue in the trial. It meant nothing so far as Gray was concerned, and did not support the theory of an alternative killer. The upshot of the DNA evidence in relation to Gray was that he was either excluded, or it made him more likely that he was not the contributor of any of the samples taken from Ms Howell’s clothing.
With respect to the applicant’s version of events, the prosecution contended that, in his records of interview with police, the applicant had been untruthful, or not fully frank, including as to his description of the nature of the relationship that he had with Ms Howell, and the account that he gave with respect to some of his movements on the night of her death.
So far as the quality of the investigation conducted by the police in 2007 was concerned, the prosecution contended that the evidence showed that the police had conducted a thorough and proper investigation into Ms Howell’s death, and that any criticism of the police was unfair and a distraction in the case. Investigative steps taken by police indicated that, rather than acting with tunnel vision, or failing to pursue other possible suspects, police took the necessary steps in considering all avenues of enquiry. In relation to Spiers, the prosecution argued that the police were required to follow the evidence, and that is exactly what they did. As for Gray, the prosecution’s position was that the police correctly identified Gray as providing baseless theories, and properly concluded that he was an unreliable source.
Finally, the prosecution argued that the evidence of the last conversation that Ms Howell is known to have had — that is, her telephone conversation with Mr Williams — showed that she was of the view that the relationship with the applicant could not continue, and that she had given him 30 days to move out of the Poath Road unit. Those circumstances, considered in the context of the evidence as a whole, should satisfy the jury beyond reasonable doubt that the applicant murdered Ms Howell.
The defence case at trial
In her final address, senior counsel for the defence submitted that the prosecution had failed to disprove the reasonable possibility that someone other than the applicant was responsible for the murder of Ms Howell.
Counsel submitted that the relationship between the applicant and Ms Howell was up and down, where Ms Howell loved the applicant one minute, and was kicking him out the door the next. The evidence demonstrated that the events leading up to Ms Howell’s death were relatively normal in the context of their ongoing relationship, which was a bit dysfunctional. In that regard, the evidence of Ms Howell’s neighbours was informative of the state of the relationship in April 2007. Whenever they previously had overheard disagreement between Ms Howell and the applicant it was Ms Howell who raised her voice. But there were a number of matters that indicated the relationship between Ms Howell and the applicant was far from over. Thus, for example, the applicant’s conversation with Ms Tormey the day he went to inspect the car indicated his view that the position between him and Ms Howell was not settled.
As to the state of the relationship on 21 April 2007, the defence did not dispute that Ms Howell was very upset with the applicant, and had given him 30 days to leave the Poath Road unit. That did not mean, however, that he was being kicked out immediately. On the contrary, Ms Howell was only asking him at that time to move into the spare bedroom.
The defence relied on the fact that there was no history of physical violence in the relationship, and no evidence that the applicant had attempted to isolate Ms Howell from her friends or family. In circumstances where they had only been together for a relatively short period of time, any break-up would have been a reasonably simple affair. Hence, counsel argued, the circumstances of the relationship did not provide any motive for murder.
In relation to what the applicant told police in the records of interview, the defence contended that the applicant was forthcoming and gave an honest picture of the nature of the relationship. The applicant must have been in a state of shock, grief, stress and anxiety during questioning, and that needed to be kept in mind when considering the evidence. Further, the applicant had no reason to withhold information, because he must have known the police would talk to Ms Howell’s friends. His account of having taken the dog for a walk for up to two hours that night was entirely consistent with other evidence.
With respect to Mr Singh, Ms Williams and Ms Burgess, the defence accepted that it was obvious from their evidence that something happened, but noted that they only heard one noise during the evening. As to the timing of the thud that they heard, the defence submitted that, based on the evidence of both Mr Singh and Ms Williams, the noise could have been as late as 9.35 pm (which is later than the time that the applicant told police and emergency services that he left for a walk that evening).
The defence contended that there were a number of ways in which an intruder might have entered the Poath Road unit after the applicant left to walk the dog. Counsel argued that there was plenty of time for an intruder to duck under the front garage door when the applicant left. There was an obvious way to get over the fence and into the courtyard of the Poath Road unit without touching the creeper. Further, it was submitted that the prosecution sought to make too much of the matters relating to the crime scene referred to by the applicant in his account to police of what he did when he arrived back at the unit. He must have been in a state of panic, which could be heard in the ‘000’ call.
Counsel for the defence made a number of criticisms of the police investigation, including the time it took to investigate available CCTV footage in the neighbouring area, and that several areas that should have been checked for fingerprints were not.
Senior counsel for the defence argued that the ‘strange silent nature of the killing’ made it less likely that there had been a domestic dispute. Rather than the state of the crime scene suggesting that the applicant staged it, the state of the Poath Road unit was entirely consistent with someone who had an obsession with Ms Howell, watching her and entering when the opportunity arose.
In relation to Spiers, counsel submitted that there were reasons to doubt the truthfulness and reliability of his evidence. Connell’s evidence was not reliable corroboration for Spiers’. He was Mr Spiers’ mate, and his evidence went no higher than that, as far as he knew, Spiers was in his bedroom when Connell went to bed. Connell had also been drinking heavily, and refused to sign a statement in 2007. Police made no attempt to make inquiries of Spiers’ neighbours or to obtain CCTV footage. Counsel submitted that Spier’s position needed to be considered in the context of him having shown up at the Poath Road unit five or six months before Ms Howell was killed, and that Ms Howell had said that she was ‘petrified’. Spiers should have been the subject of further investigation, particularly when some of the allegations underlying the intervention orders taken out against him were considered.
Having criticised the investigation in relation to Spiers, the defence contended that the investigation in relation to Gray was even worse. A profile of Gray made by police in May 2007 contained a list of aliases and a summary of the criminal history of Gray between 1979 and 2006. Had a timely LEAP inquiry been made of Gray, it would have revealed a number of charges outstanding against him for crimes of violence. Police made no attempt to ascertain where Gray was at the time of Ms Howell’s death. Indeed, police did not speak to him in connection with Ms Howell’s death until 24 May 2007, more than a month after Ms Howell was killed. Given Gray’s history, it was unfathomable that police did not take steps, within a few days of Ms Howell’s death, to ascertain Gray’s whereabouts on the night of 21 April 2007.
Counsel contended that the DNA evidence established that it was possible that Gray, or some other unknown male intruder, had contributed to the DNA detected on Ms Howell’s clothing. In any event, the fact that a person is excluded as a result of DNA analysis, or is found not likely to be a contributor, does not mean that they were not present.
Ground 1: Comments and directions concerning ‘beyond reasonable doubt’
As we have indicated, we would not uphold the first proposed ground of appeal, which contends that a substantial miscarriage of justice arose, first, from what the jury were ‘told about proof beyond reasonable doubt’ in the course of the prosecution’s final address; and, secondly, from the trial judge giving the directions provided for by s 64(1)(e) of the Jury Directions Act 2015 (‘JDA’) (when explaining the meaning of the phrase ‘beyond reasonable doubt’).[4]
[4]Counsel for the applicant sought an adjournment of the hearing of the application for leave to appeal on the basis that the High Court had, on 6 March 2025, granted special leave to appeal this Court’s decision in Farshchi v The King [2024] VSCA 235. See Farshchi v The King [2025] HCADisp 41. The Court refused the application on the basis that the issues to be determined by the High Court in that case could not bear on the resolution of the instant case. In particular, the present case does not raise for consideration whether s 64(1)(e) of the JDA is incompatible with s 13.2 of the Criminal Code (Cth) or s 80 of the Constitution (Cth), and therefore not picked-up by s 68(1) of the Judiciary Act 1903 (Cth).
Sections 63 and 64 of the Jury Directions Act
Although the common law generally deprecated any attempt by a trial judge to explain the meaning of the expression ‘beyond reasonable doubt’,[5] s 63(1) of the JDA now requires a trial judge to give to the jury an explanation of the phrase ‘proof beyond reasonable doubt’ unless there are good reasons for not doing so. In turn, s 64(1) sets out the manner in which the mandatory explanation may be given. Those sections provide:
[5]See, e.g., Brown v The King (1913) 17 CLR 570, 584 (Barton ACJ) (‘Brown’); Thomas v The Queen (1960) 102 CLR 584, 587 (McTiernan J), 595 (Kitto J), 604–5 (Windeyer J) (‘Thomas’); Dawson v The Queen (1961) 106 CLR 1, 18 (Dixon CJ) (‘Dawson’); Green v The Queen (1971) 126 CLR 28, 30–4 (Barwick CJ, McTiernan and Owen JJ) (‘Green’); La Fontaine v The Queen (1976) 136 CLR 62, 71 (Barwick CJ) (‘La Fontaine’); R v Dookheea (2017) 262 CLR 402, 407–8 [1], 416 [24], 424 [37], 426–7 [41] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ) (‘Dookheea’).
63Trial judge must explain “proof beyond reasonable doubt”
(1)The trial judge must give the jury an explanation of the phrase “proof beyond reasonable doubt” unless there are good reasons for not doing so.
(2)The trial judge must give the explanation before any evidence is adduced in the trial unless there are good reasons for not doing so.
(3)In determining whether there are good reasons for—
(a) not giving the explanation at all; or
(b) not giving the explanation before any evidence is adduced in the trial—
the trial judge must have regard to the submissions, if any, of the prosecution and defence counsel (or, if the accused is unrepresented, the accused).
(4)If the trial judge determines that there are good reasons for not giving the jury the explanation before any evidence is adduced in the trial, the trial judge must give that explanation to the jury at the earliest time in the trial that the trial judge determines is appropriate.
(5)The trial judge may also give the jury the explanation if the jury asks the trial judge—
(a) a direct question about the meaning of the phrase “proof beyond reasonable doubt”; or
(b) a question that indirectly raises the meaning of that phrase.
(6)The trial judge may repeat an explanation given under this section at any time in the trial.
(7)In repeating an explanation given under this section, the trial judge is not required to give that explanation in exactly the same way that it was first given.
(8)Nothing in this section limits any other power of the trial judge to give the jury an explanation of the phrase “proof beyond reasonable doubt”.
64How explanation may be given
(1) In explaining the phrase “proof beyond reasonable doubt” under section 63, the trial judge may—
(a) refer to—
(i) the presumption of innocence; and
(ii) the prosecution’s obligation to prove that the accused is guilty; or
(b) indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty; or
(c) indicate that—
(i) it is almost impossible to prove anything with absolute certainty when reconstructing past events; and
(ii) the prosecution does not have to do so; or
(d) indicate that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty; or
(e) indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.
In light of the unequivocal terms in which s 63 is couched, unless there are good reasons for not doing so, a trial judge has no option other than to give an explanation of the phrase proof beyond reasonable doubt to the jury before any evidence is adduced (or, at least, at the earliest time in the trial that the trial judge determines is appropriate). The JDA gives no clue as to what might be considered ‘good reasons’ for not giving an explanation of the phrase, but we note that it was not submitted either at trial, or in this Court, that there were good reasons for not giving the required explanation. Rather, the submission in this Court was that a direction should not have been given in the form for which s 64(1)(e) provides.
By its clear terms, s 64 permits the judge, when explaining the phrase beyond reasonable doubt, to ‘refer to’ the presumption of innocence and the burden of proof, and to ‘indicate’ that: first, it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty; secondly, it is almost impossible to prove anything with absolute certainty when reconstructing past events (and the prosecution does not have to do so); thirdly, the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty; and, fourthly, a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.
The prosecution final address and the response to it
In the course of his final address, senior counsel for the prosecution said:
Of course you have a collective common sense, individual common sense and a collective common sense, that we all have from living our lives, and if you think about it, in a criminal trial where the test is beyond reasonable doubt, common sense makes sense. You decide as a jury what in this case for you is reasonable doubt when you go to deliver your verdict of either guilty or not guilty. What does reasonable doubt mean to you? So common sense is the tool, if you like, or the measuring stick that serves our system so well, we believe anyway, the common sense of 12 people combined going into that jury room and talking things out, talking through the evidence amongst yourselves. So it’s beyond reasonable doubt in relation to your verdict but we ask you to apply the blow torch of common sense to the evidence that you’ve heard when you go through that process of deciding whether you have reasonable doubt or not.
Before the prosecution final address had concluded, defence counsel complained to the trial judge that what prosecution counsel had said ‘undermines the standard of proof’. Defence counsel submitted that it was ‘fundamentally wrong’ to ask the jury to apply ‘a blowtorch of common sense … in the context of their assessment of what is a reasonable doubt’. Counsel submitted that it is ‘dangerous to use bits of rhetoric like that around the standard of proof in a trial’, since ‘the test is the test’. Defence counsel submitted that it is ‘important that it be corrected immediately’ and that any correction ‘should have the weight of judicial office’ behind it.
In response, senior counsel for the prosecution submitted that ‘nothing [he] said went anywhere near undermining the standard of proof’.
The trial judge delivered a brief ruling in which he said that he had ‘read carefully’ the transcript of that part of the prosecution final address criticised by defence counsel — including the reference to ‘common sense’ being applied as ‘a blow torch’ to the evidence — and could ‘see no exception to be taken in relation to what was said’.
The trial judge’s directions on the standard of proof
As we have mentioned, beyond criticising that portion of the prosecution final address set out above, the applicant seeks to impugn that part of the judge’s charge in which he dealt with the fourth of the matters which, by reason of s 64(1), a trial judge is permitted to ‘indicate’.
Relevantly, in preliminary directions given before the prosecution case was opened, the judge directed the jury that the prosecution needed to satisfy them of the applicant’s guilt beyond reasonable doubt. The ‘words mean precisely what they say’, being ‘the highest standard of proof that our law demands’. Having reminded the jury of the presumption of innocence, the judge directed the jury that it was not enough for the prosecution to persuade the jury that the applicant was ‘probably guilty or even very likely to be guilty’, bearing in mind that it is ‘almost impossible to prove anything with absolute certainty when reconstructing past events’ (and the prosecution does not have to do that). The judge said that the ‘key message’ was that, if they had a reasonable doubt about his guilt, the jury could not find the applicant guilty, ‘noting that a reasonable doubt is not an imaginary of fanciful doubt or an unrealistic possibility’ (these final directions echoing precisely the terms of s 64(1)(e) of the JDA).
Returning to the burden and standard of proof in his charge, the judge directed the jury in terms that very closely reflected the provisions of s 64(1) of the JDA:[6]
I want to emphasise again that under our justice system, accused persons are presumed innocent.[[7]] And to be innocent unless and until they are proven guilty. So before you may return a verdict on any charge, the prosecution must satisfy you that [the applicant] is guilty of the charge that you are considering.[[8]] [The applicant] does not have to prove anything. That never changes, from the start to the finish.
The onus is on the prosecution to prove [the applicant’s] guilt. It is not for [the applicant] to demonstrate his innocence by proving to you that he did not commit the offence. It is for the prosecution to establish all of the elements of the charge you are considering, and by doing so, the charge in question. The prosecution can only discharge their onus by proving [the applicant’s] guilt of the charge you are considering beyond reasonable doubt.
As I have told you, these words mean exactly what they say; proof beyond reasonable doubt. I am sure you will recall in my preliminary directions I contrasted a lower standard of proof used in civil cases, with the requirement in criminal cases for proof beyond reasonable doubt. Beyond reasonable doubt is the highest standard of proof that our law demands. It is not enough for the prosecution to prove that [the applicant] is probably guilty, or very likely to be guilty.[[9]]
Also as I have told you, it is almost impossible to prove anything with absolute certainty when reconstructing past events,[[10]] and the prosecution does not have to do that.[[11]] A reasonable doubt is not an imaginary or fanciful doubt, or an unrealistic possibility.[[12]] The key point is this; you cannot be satisfied that [the applicant] is guilty if you have a reasonable doubt as to whether he is guilty.[[13]]
The prosecution does not need to prove every fact that it alleges beyond reasonable doubt. It is the essential ingredients or elements of the charge that they must prove beyond reasonable doubt. I will explain these to you in more detail a bit later in these directions. So it is only if you are satisfied that the prosecution has proven all of the elements of the charge you are considering beyond reasonable doubt that you may find [the applicant] guilty of that charge. If you are not satisfied the prosecution has done this, your verdict must be not guilty.
[6]Emphasis added.
[7]See s 64(1)(a)(i) of the JDA.
[8]See s 64(1)(a)(ii) of the JDA.
[9]See s 64(1)(b) of the JDA.
[10]See s 64(1)(c)(i) of the JDA.
[11]See s 64(1)(c)(ii) of the JDA.
[12]See s 64(1)(e) of the JDA.
[13]See s 64(1)(d) of the JDA.
The applicant’s submissions
In support of the first limb of the first proposed ground of appeal, the applicant’s counsel contended that the trial prosecutor’s reference to ‘deciding whether you have a reasonable doubt or not’ reversed the onus of proof. Counsel submitted that the jury’s function was to determine whether the prosecution had proved the charge of murder against the applicant beyond reasonable doubt. Although, of course, the jury were required to apply common sense when performing their function, the ‘vice’ in the trial prosecution’s ‘uncorrected address’ was that it equated proof beyond reasonable doubt ‘with a less rigorous state of satisfaction than that phrase entailed’, and ‘invited the jury to impermissibly ignore reasonable possibilities arising from the evidence that did not suit the prosecution’s case’.
With respect to the second limb of the ground, counsel for the applicant submitted in writing that the judge’s directions that a reasonable doubt is not an unrealistic possibility resulted in a substantial miscarriage of justice. Counsel referred to a number of cases that dealt with the dangers associated with attempts to define the criminal standard for a jury,[14] and pointed out that the High Court in Dookheea had observed that, generally speaking, it was ‘unwise for a trial judge to attempt any explication of the concept of reasonable doubt beyond observing that the expression means what it says and that it is for the jury to decide whether they are left with a reasonable doubt (and in certain circumstances explaining that a reasonable doubt does not include fanciful possibilities)’.[15] The applicant’s counsel specifically acknowledged, however, that ‘in Victoria the position has changed as a result of legislative intervention’, that intervention being the enactment of ss 63 and 64 of the JDA.
[14]Brown, 584–6 (Barton ACJ); Thomas, 584, 587 (McTiernan J), 595 (Kitto J), 604–5 (Windeyer J); Dawson, 18 (Dixon CJ); Green, 30–4 (Barwick CJ, McTiernan and Owen JJ); La Fontaine, 71–3 (Barwick CJ), 80–1 (Gibbs J), 83–5 (Stephen J), 87 (Mason J); Dookheea, 426 [41] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ).
[15]Dookheea, 426 [41] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ).
Furthermore, counsel acknowledged in their written submissions that s 64(1)(e) permits a judge to indicate ‘that a reasonable doubt is not (amongst other things) an unrealistic possibility’. Counsel submitted, however, that notwithstanding that provision, it is ‘essential that, in explaining “proof beyond reasonable doubt”, the criminal standard of proof is not diminished or obscured’. The direction provided for by s 64(1)(e) is ‘problematic’ because, when it is given, it introduces the dangers referred to in the cases adverted to.[16] In particular, counsel submitted, s 64(1)(e) ‘especially introduces the dangers considered in Green’.[17] That provision does not make it mandatory for a jury to be told that ‘a reasonable doubt is not … an unrealistic possibility’. Yet, counsel contended, when a jury is given a direction in those terms, there is a risk that, rather than focussing on whether the prosecution has proved guilt beyond reasonable doubt, the jury will be distracted by considering whether a doubt they might be experiencing could be described as an ‘unrealistic possibility’ (and, if so, by reason of the judge’s directions disregarding that doubt).
[16]See fn 14 above.
[17]See Green, 30–34.
In their written submissions, counsel for the applicant cited the observation in Dookheea that ‘a reasonable doubt is a doubt which the jury as a reasonable jury considers to be reasonable (albeit, of course, that different jurors might have different reasons for their own reasonable doubt)’.[18] The problem with directing a jury that a reasonable doubt is not an unrealistic possibility, counsel contended, is that a juror or a jury might have a doubt which they as a reasonable juror or jury consider to be reasonable, even if they also consider it to be an unrealistic possibility. In such circumstances, a guilty verdict might be returned even though the charge had not been proved to that trier of fact beyond reasonable doubt. Even if, counsel submitted, the jury considered the prospect that the applicant did not cause Ms Howell’s death to be an unrealistic possibility, the applicant was nonetheless entitled to be acquitted if that prospect constituted a doubt which the jury as a reasonable jury considered to be reasonable. Counsel argued that there had been a serious departure from the prescribed processes for trial,[19] given that the observation of the applicable standard of proof is so fundamental to a criminal trial. Alternatively, it could not sensibly be said that the applicant’s conviction was inevitable.[20] As a result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice.[21]
[18]Dookheea, 423 [34].
[19]Baini v The Queen (2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
[20]Ibid 480–1 [28]–[32].
[21]Criminal Procedure Act 2009, s 276(1)(b).
The oral submissions of counsel for the applicant were difficult to follow. Counsel appeared to accept that a direction was to be given as required by s 63 of the JDA, but submitted that a direction should not have been given in the form for which s 64(1)(e) provides because such a direction ‘diminished the standard of proof’. In response to direct questions from the Court, however, counsel leading for the applicant made it clear that he made no challenge to the validity the JDA, and he accepted that it was not beyond the legislative competence of Parliament to ‘modify’, ‘lower’ or ‘diminish’ the criminal standard of proof. Counsel submitted, however, that — despite the clear words of s 64(1)(e) — one could not discern a legislative intention to diminish the standard of proof.
Asked by the Court how he could contend that there had been a miscarriage of justice when the trial judge ‘followed the statutory script’ in s 64(1)(e) ‘almost word for word’, counsel responded that ‘s 64, which provides for how an explanation might be given, is not a code’. Counsel submitted that s 64 ‘does not make it mandatory for a trial judge to give any of the particular directions that are provided for’; and, indeed, ‘s 64 provides for there possibly being in some cases good reason to not give a direction’, all of which ‘points to the possibility that in certain circumstances some of these directions might not be appropriate’. Although counsel accepted that Parliament considered that there may be cases where the direction in s 64(1)(e) can be given — ‘clearly, that’s why they’ve included it’ — any such ‘explanation’ should be tailored to the circumstances of the case in a way ‘that does not diminish the standard of proof’. Counsel submitted that ‘if there is a risk that the giving of the direction does diminish the standard of proof, then the giving of the direction in that case should not be done because there’s nothing here to suggest that Parliament has intended to diminish the criminal standard of proof’. Notwithstanding that contention, at other times during oral argument it appeared to be central to his submissions that the words of s 64(1)(e) did indeed diminish the standard of proof — so that a legislative intention to diminish the standard of proof could thereby be divined — yet counsel did not advance any satisfactory submission harmonising those two antagonistic propositions.
Further, in oral submissions counsel for the applicant submitted that in Green[22] the High Court had observed that, if in the course of a trial counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or ‘completely unreal’ ought to be regarded as affording a reason for doubt, it would be proper for the trial judge to restore the balance by directing the jury that fantastic and ‘unreal possibilities’ ought not to be regarded as a source of reasonable doubt. Counsel submitted that, in light of Green, certain observations made by this Court in Farshchi[23] should be reconsidered. Counsel submitted that there is a significant difference between ‘unreal possibilities’ as adverted to in Green, and the ‘unrealistic possibilit[ies]’ adverted to in s 64(1)(e) of the JDA.
[22]Green, 33.
[23]Farshchi v The King [2024] VSCA 235, [40] (Priest JA, Niall and Taylor JJA agreeing) (‘Farshchi’).
Counsel for the applicant submitted that for the judge to direct the jury that a reasonable doubt was not an ‘unrealistic possibility’ resulted in a substantial miscarriage of justice, albeit that counsel acknowledged that no exception was taken to the directions.
Ultimately, counsel for the applicant contended that, even if the jury considered the prospect that the applicant did not cause Ms Howell’s death to be an unrealistic possibility, the applicant nonetheless fell to be acquitted if that prospect constituted a doubt which the jury considered to be reasonable.
Discussion and analysis
As we have said, the applicant’s counsel sought to impugn that part of the judge’s charge in which the judge used the language of s 64(1)(e), by which the Parliament has permitted a judge to ‘indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility’. As to that, it is worth repeating certain observations made in Farshchi with respect to a similar submission:[24]
An insurmountable obstacle standing in the way of accepting the applicant’s submission that a direction as to an unrealistic possibility diminishes the standard of proof beyond reasonable doubt is the fact that Parliament has said explicitly that a judge may, in explaining the phrase ‘proof beyond reasonable doubt’, ‘indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility’. The legislature has therefore unequivocally expressed the view that an unrealistic possibility is not a reasonable doubt. And importantly, it has expressed an intention that a judge be permitted to explain to a criminal jury that an unrealistic possibility cannot be the foundation of a reasonable doubt.
[24] Ibid [39].
In the next passage from Farshchi — one that counsel for the applicant submitted should be reconsidered — it was observed:[25]
As a matter of ordinary language, a possibility is something that may be true, or something that may exist (or happen). An unrealistic possibility is one that is unreasonable, irrational, illogical, improbable, foolish or similar; and an unreal possibility — as contemplated in Green — is one that is absurd, bizarre, fanciful, fantastic, illusory, non-sensical, preposterous or similar. There may be a semantic difference between the two, although if one exists, it is finely nuanced. Indeed, in my view, there is little or no practical difference between them.
[25]Ibid [40].
And in a passage that is apposite to the resolution of the instant case, it was also observed:[26]
But even if it be accepted for the sake of argument that an unrealistic possibility is not the unreal possibility spoken of in Green, it is impossible to see that any substantial miscarriage of justice was occasioned in this case by the judge’s reference to an unrealistic possibility when giving directions on the standard of proof. Reading the judge’s directions on the topic as a whole, it cannot be concluded that the jury would not have appreciated that ‘these words “proof beyond reasonable doubt” mean exactly what they say, proof beyond reasonable doubt’.
[26]Ibid [41].
In circumstances where the judge’s directions in the present case reflected — almost precisely — the language of s 64(1), it is impossible to conclude that any miscarriage of justice (substantial or otherwise) flowed from them, given that the judge, as the law demanded, gave the jury an explanation of the phrase beyond reasonable doubt in the terms authorised by the legislature.
Moreover, even if, for the sake of argument, it might be concluded that the impugned remarks in the prosecution final address might be seen to reverse the onus of proof — a conclusion that we would not reach — it is clear that, following the judge’s charge, the jury could have been left in no doubt as to the applicable burden and standard of proof.
The first ground must fail.
Ground 2: Is the verdict unreasonable or incapable of being supported by the evidence?
As we have also indicated, we would also reject the second proposed ground of appeal, which contends that the verdict is unreasonable or incapable of being supported by the evidence.
The applicant’s submissions
In support of the second ground, the applicant’s counsel submitted that the prosecution’s circumstantial case did not disprove the reasonable possibility that someone other than the applicant caused Ms Howell’s death. Most particularly, it did not disprove the reasonable possibility that her brother, Steven Gray, had caused her death. Gray was violent and a paedophile, and had a sex offender registration order made against him. He had stalked Ms Howell, and she had made a police statement implicating him as a sex offender loitering around her adopted daughter’s school. Gray was convicted of that offence in September 2006. Importantly, at no stage did police ever determine where he was when Ms Howell was killed. The possibility that he was present when Ms Howell died was not excluded by the evidence. Indeed, so counsel submitted, forensic officer Aimee Pollett gave evidence pointing to his DNA being located on Ms Howell’s underpants.
Counsel submitted that the prosecution’s circumstantial case did not prove beyond reasonable doubt that the applicant caused Ms Howell’s death. There were forensic disadvantages arising from inadequacies in the police investigation, including missed lines of enquiry and the loss of investigative records. There were also forensic disadvantages arising from the prosecution in 2023 of an offence allegedly committed in 2007. Some of the applicant’s answers to police questions could have been, but were not, investigated. The evidence of the applicant’s relationship with Ms Howell did not prove that he killed her. That evidence, counsel submitted, was not capable of filling the gaps in the prosecution’s case. The whole of the evidence, which included DNA evidence, did not exclude the reasonable possibility that Ms Howell was killed by someone entering the unit after the applicant had gone out to walk his dog. Guilt was not the only rational inference available on the evidence. The verdict of the jury is unreasonable and cannot be supported having regard to the evidence. Hence, the applicant’s counsel submitted, the conviction must be set aside and a judgment of acquittal entered.
The respondent’s submissions
There was, the respondent’s counsel submitted, no hypothesis consistent with the applicant’s innocence reasonably open. The defence case at trial was that the prosecution could not exclude the reasonable possibilities that Ms Howell’s former partner, Mark Spiers; her brother, Steven Gray; or an unknown ‘criminal intruder’, were responsible for killing her. When all of the evidence is scrutinised, however, it is clear that it was well open to the jury to reject as unreasonable possibilities each of these three alternatives, and, having done so, to find that the applicant was guilty of Ms Howell’s murder.
Counsel for the respondent submitted that the notion that an intruder — known or unknown — entered the unit to kill Ms Howell does not sit comfortably with the evidence and could safely be rejected by the jury as fanciful or unrealistic. The manner in which Ms Howell was killed, together with the state in which both the unit and Ms Howell’s body were found, strongly supports the proposition that an intruder was not responsible for Howell’s killing. The evidence suggested that Ms Howell was struck to the back of the head near the front door and staircase with such force that she was rendered unconscious nearly immediately, and then strangled. The absence of any evidence of screaming or a struggle suggests that she was not surprised by the presence of her attacker, or by an intruder forcibly breaking into the premises. Given that the unit was left undisturbed, and that Ms Howell’s clothes were not torn or damaged and there was no evidence of a sexual assault, the jury could rule out a random burglar or sex offender as being responsible. Rather, the circumstances suggested that the offender was singularly determined to kill Ms Howell.
It was open to the jury, counsel submitted, to reject the notion that Spiers was the killer. Spiers had no apparent motive to murder Ms Howell. The evidence showed that he had almost no contact with Ms Howell in the decade since their relationship ended. On the occasion that Spiers visited her about six months before her death, Spiers complied with Ms Howell’s request to leave without incident. There subsequently was no further contact between them. Moreover, there was no evidence of any animosity between Spiers and Ms Howell, other than one occasion in or around 1996 when Ms Stevenson saw Spiers push Ms Howell on the shoulders. Other than that incident, Spiers had no history of violence towards Ms Howell (the application for an intervention order sought by Ms Howell against Spiers making no such allegation). Finally, Spiers had a partial alibi for 21 April 2007.
Similarly, counsel for the respondent submitted, it was open to the jury to reject the hypothesis that Gray was the murderer. At the time of her death, Ms Howell was estranged from Gray. She had no contact with him from around 1995. Gray only once attempted to make contact with Ms Stevenson — not Ms Howell — in May 2005. There was no evidence that Gray had any interest in seeing Ms Howell before her death. Moreover, there was no obvious motive for Gray to kill Ms Howell. Gray’s sex offending from 1993 concerned a child, not a female adult, and was opportunistic in nature. There was no evidence Gray had ever sexually abused Ms Howell, or had ever acted violently towards her. Any alleged stalking had occurred many years previously and had not involved violence. It is implausible that the fact that Ms Howell made a statement to police about Gray attending Ms Stevenson’s school would have led to any animosity given that Gray made full admissions and pleaded guilty. And Gray’s conduct after Ms Howell’s death was hardly inculpatory.
Counsel for the respondent also submitted that it is inaccurate to suggest that the evidence ‘pointed’ to Gray’s DNA being located on Ms Howell’s underwear. As the DNA expert Aimee Pollett explained, Gray was excluded as, or was more likely not to be, a contributor to the DNA profiles detected on Ms Howell’s cardigan, pants and socks, and, using one profiling system, was also found more likely not to be a contributor to the DNA profile detected on Ms Howell’s underwear. While another profiling system determined that Gray was ‘four times more likely’ to be a contributor to that same DNA profile, the conclusion rested on several assumptions, and, in any event, provided only ‘slight support’ for the proposition that he was in fact a contributor to that sample. The ratio indicated no more than that one in four Caucasian males shared a similar DNA profile. Gray’s exclusion as a contributor from the DNA samples taken from Ms Howell’s other clothes supported the view that he was not responsible for depositing DNA on Ms Howell’s underwear.
Significantly, counsel submitted, the applicant had both the motive and opportunity to kill Ms Howell. By the time of Ms Howell’s murder, their relationship had significantly deteriorated. Ms Howell had told multiple people that she wanted out and the applicant had 30 days to vacate the unit. Unlike Spiers, Gray or some other person, the applicant lived at the Poath Road unit and was known to be there on the evening that Ms Howell was killed. The absence of any screaming, or any signs of a struggle or disturbance inside the home, can be rationally explained only by the applicant being Howell’s killer.
Finally, the respondent’s counsel also contended that the applicant’s accounts to police were riddled with inconsistencies and contradictions, and comprised aspects which were implausible.
Discussion and analysis
The applicant’s sole ground of appeal invokes s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), which provides that this Court must allow an appeal against conviction if satisfied that ‘the verdict of the jury is unreasonable or cannot be supported having regard to the evidence’. M sets out the test to be applied under that statutory limb: ‘the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[27] M requires each member of this Court to make his or her own independent assessment of whether, on the evidence as a whole, there is a reasonable doubt as to the guilt of the applicant. As is made clear in the joint judgment in M, in most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.[28]
[27]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’); Pell v The Queen (2020) 268 CLR 123, 147 [45]–[46] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).
[28]M, 494.
Having carried out an independent assessment of the whole of the evidence, we are of the view that it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of Ms Howell’s murder. The applicant has failed to persuade us that the jury’s verdict is unreasonable or cannot be supported having regard to the evidence. We do not entertain a reasonable doubt about the applicant’s guilt, and do not consider that the jury should have done so.
To risk repetition, the evidence revealed that, on Saturday, 21 April 2007, at approximately 9.15 pm, Raj Singh, Kylie Williams and Amanda Burgess, watching television in the unit next door to where Ms Howell was bludgeoned, heard a loud noise — Ms Williams and Ms Burgess said it was a ‘dull thud’ — come from Ms Howell’s unit, the thud being loud enough for Mr Singh to stop the movie and ask, ‘What was that noise?’. It is a reasonable inference to draw that the ‘thud’ was either a blunt instrument connecting with Ms Howell’s head, or her body hitting the floor.
By his own admission — to LSC Sonogan at the scene, and to Detectives Barro and Smith in the two records of interview — the applicant left the unit to walk the dog at around the time Ms Howell was killed, somewhere between 9.15 and 9.30 pm. Thus, on his own version, the applicant was present at the unit at a time closely proximate to when Ms Howell was bashed and strangled.
Significantly, an examination of the unit by police revealed that, although an internal door from the garage into the lounge area was found to be damaged, no external doors had been. There were no signs that the external tilt-up door — through which entry could be gained to the garage, and thence to the lounge area from the garage — had been damaged or tampered with. That was significant since, according to the evidence of LSC Sonogan, the applicant used a remote control, which he took from his pocket, to open the front garage tilt-up door in order to obtain a bottle of water. In combination, that evidence was capable of establishing that the person (or persons) who damaged the door leading from the interior of the garage into the unit had not in the first place gained entry into the garage from its exterior through force, in circumstances where the applicant had a ready means of entry by means of the remote control.
Notably, quite apart from the damage to the garage’s internal door, there were no other signs of disturbance or violence inside or outside the unit. In the courtyard, the creeper atop the fence appeared intact; the clothesline was undamaged; and the outdoor chairs showed no evidence of having been stood on. There were no unaccounted for fingerprints detected. So much strongly indicated that an intruder had not gained access to the courtyard by climbing over the back fence, thereby gaining entrance to the garage — and thereafter the lounge area of the unit — through the back door.
Given the injury to her head, and the position where her body was located, it was reasonable to infer that Ms Howell was struck on the back of the head with force when she was situated near the front door and staircase. The nature of the ligature marks, and other medical evidence, strongly suggest that Ms Howell was struck to the back of the had with such force that she was rendered unconscious, and then strangled. Hence, the killing could not have been anything other than deliberate. Indeed, the circumstances indicate that the killer was particularly determined to end Ms Howell’s life.
Moreover, the absence of any evidence of a struggle strongly suggests that Ms Howell had not been surprised by the presence in the unit of whomever attacked her, or by an intruder breaking into the unit forcibly through the door leading from the garage into the lounge area. Indeed, given that the unit appeared to have been left undisturbed; that Ms Howell’s clothes appear not to have been torn or damaged; and that there was no evidence of a sexual assault; the jury could reasonably exclude the possibility that a random burglar or sex offender was responsible for the attack upon her.
In our view, the jury could also safely reject the hypothesis that Mark Spiers was the killer. He had no apparent motive to want to murder Ms Howell. Apart from a single occasion in or around 1996 when Spiers was said to have pushed Ms Howell, there was no evidence of any animosity between them, let alone any history of violence, in circumstances where the killer had made a determined effort to bring about her death. Indeed, the evidence suggested that Spiers had almost no contact with Ms Howell in the decade or so since their relationship ended. Although he had visited her unit in the months before her death, the evidence was that he left without incident upon being requested to do so. Subsequently, there was no further contact between them. Furthermore, Spiers had a partial alibi for 21 April 2007. He and Connell had been drinking together at the Sandbelt Hotel, returning home at 7.30 pm. Thereafter, at 3.00 am the next morning, Connell — who was a light sleeper — requested that Spiers accompany him to the casino, a request that Spiers rebuffed.
We consider that it was also open to the jury to reject the hypothesis that Steven Gray was the killer. There was no apparent motive for Gray to want to kill his sister. It appears that Gray was estranged from Ms Howell at the time of her death. From around 1995, when Ms Stevenson began living with her, Ms Howell had no contact with Gray. Although Gray made one attempt in May 2005 to contact Ms Stevenson, he had not attempted to contact Ms Howell, and there was no evidence that he had any interest in seeing Ms Howell before her death. Gray’s 1993 sex offending concerned a prepubescent girl, not an adult female, and had been opportunistic in nature. There was no evidence Gray had ever sexually abused Ms Howell or had ever acted violently towards her. And given that he had made admissions and pleaded guilty, it is unlikely that Ms Howell’s statement to police about Gray attending Ms Stevenson’s school would have provided a motive for Gray to want to kill Ms Howell.
An important aspect of the defence theory that Gray might have been the killer revolved around a DNA sample obtained from Ms Howell’s underpants. In our view, however, the DNA evidence provided little or no support for that claimed possibility. As the DNA expert, Ms Pollett, explained, Gray was excluded as, or was more likely not to be, a contributor to the DNA profiles detected on Ms Howell’s cardigan, pants and socks. And while one profiling system determined that Gray was ‘four times more likely’ to be a contributor to the mixed DNA profile on her underpants, another system had found that it was more likely that he was not a contributor. That single positive finding rested on several assumptions (including that the applicant was the other contributor to the mixed profile). Ultimately the sample provided only ‘slight support’ for the proposition that Gray was in fact a contributor to it, a ratio indicating no more than that one in four Caucasian men shared a similar DNA profile. Furthermore, even assuming that DNA from an unknown man (other than Gray) was present on Ms Howell’s underwear, there was no evidence about when that DNA might have been deposited.
It was also well-open to the jury to reject the hypothesis that a random burglar opportunistically murdered Ms Howell. There was no physical evidence of a forced entry into the unit, and the physical evidence rendered it unlikely that an intruder had climbed the back fence of the premises to gain access to the rear courtyard (and thereby the unlocked rear garage door). Hence the only other possibility had to be that the posited random burglar entered the garage from outside through the garage tilt-up door, after the applicant exited to take the dog for a walk, during the relatively short period before the door shut automatically;[29] and that, having gained access to the garage during that small window of opportunity, had forced entry into the unit by way of the interior garage door. That hypothesis strikes us — as it likely would have struck the jury — as highly improbable.
[29]See [53] above. The available evidence suggested that the door remained open for between 47 and 48 seconds before it commenced to close. It then took a minute to close.
Perhaps more significantly, quite apart from the fact that the physical evidence — or the lack of it — did not support the hypothesis that somebody had forced entry to the unit, the circumstances of the killing were visceral, and appeared to have been attended by a personal element. On the defence theory (or one of them), the putative random intruder, having been disturbed in the course of a burglary during which nothing was taken, was not content simply to render Ms Howell insensible with a blow to her head, but set about strangling the life from her in a cold, deliberate and utterly gratuitous manner. That possibility impresses us, as we consider it would have the jury, as being extremely unlikely. In our view, the way in which Ms Howell was strangled did not bear the hallmarks of a disturbed intruder gripped by panic.
Finally, the evidence demonstrated that the applicant had both the motive and opportunity to murder Ms Howell. A deal of evidence showed that, at the time of Ms Howell’s murder, the relationship between her and the applicant had deteriorated significantly. By April 2007, Ms Howell had told multiple people that she wanted ‘out’ of her relationship with the applicant and he had 30 days to vacate the unit. Letters written by Ms Howell to the applicant — found after her death and tendered in evidence before the jury — confirmed that Ms Howell considered that the relationship was finished and showed her strong desire that the applicant leave. In the hours before she was found dead, Ms Howell and the applicant had been arguing, culminating in Ms Howell throwing the television remote control into the courtyard. By way of contrast to Spiers, Gray or a posited random intruder, the applicant was known to be at the unit on the evening that Ms Howell was killed, in circumstances where he had a motive to kill her.
Moreover, since Ms Howell would not have been surprised by the applicant’s presence in the unit, the manner and location of her killing, combined with an absence of any signs of any struggle or disturbance inside the premises, point convincingly to the applicant as being her killer.
For these reasons, the applicant’s ground of appeal cannot be upheld.
Leave to appeal against conviction must be refused.
---
- AGLC
- Charlton v The King [2025] VSCA 46
- Case
- [2025] VSCA 46
- Decision Date
CaseChat Overview and Summary
The court considered whether the trial judge's directions were in accordance with the Jury Directions Act 2015, which requires that the jury be directed on the standard of proof 'beyond reasonable doubt' in the terms prescribed by the legislature. The court examined whether the trial judge's explanation of this standard, including the reference to an 'unrealistic possibility,' could be seen as diminishing the standard of proof. The court also assessed whether the jury's verdict was unreasonable or could not be supported given the evidence presented.
The court concluded that the directions given to the jury were consistent with the requirements of the Jury Directions Act 2015. The court found that the trial judge's explanation did not lower the standard of proof required for a conviction. Additionally, the court held that the jury was entitled to reject the appellant's defence that an intruder was responsible for the killing. The court affirmed that the jury's verdict was reasonable and supported by the evidence, and therefore the conviction was upheld. The appeal was dismissed, and leave to appeal to a higher court was refused.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.