De Gruchy v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S252 of 2001

B e t w e e n -
MATTHEW WAYNE DE GRUCHY
Appellant
and
THE QUEEN
Respondent

GAUDRON J
McHUGH J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 MARCH 2002, AT 10.18 AM

MR T.A. GAME, SC: If the Court pleases, I appear for the appellant with my learned junior, MR J.S. STRATTON. (instructed by Andrews Solicitors)

MR R.D. ELLIS: If the Court pleases, I appear for the respondent with my learned friend, MR L.M.B. LAMPRATI. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

MR GAME: If the Court pleases, we have an application to amend the grounds of appeal.

GAUDRON J: I understand that is not opposed.

MR GAME: That is correct.

GAUDRON J: But it does rather enlarge the basis on which special leave was granted, does it not?

MR GAME: It does, your Honour. Two things: one is the argument about the hairs was merely an aspect of the argument about unsafe and unsatisfactory. The second thing is ‑ and it is not really put in my client’s favour, but the second thing is that the first sentence in the existing ground 2 is too strong, that is to say it is too strong to say that the hair could not have come from the appellant. So ground 2 really loses much of its force. The question really left to argue is whether or not the court erred in concluding that the verdict was not unsafe.

GAUDRON J: You have leave to amend the grounds of appeal.

MR GAME: If the Court pleases.

GAUDRON J: You will file the amended grounds of appeal in ‑ ‑ ‑

MR GAME: I will, but could I just say this: the amended notice of appeal will say that the Court of Criminal Appeal erred in holding that the verdicts of the jury were not unreasonable and that the verdicts could be supported having regard to the evidence.

KIRBY J: That is the language of the Criminal Appeal Act.

MR GAME: It is the language of the Criminal Appeal Act, and it is the language that has been adopted since the decision of this Court in Farrell. Now, may we have leave to file that amended notice of appeal at some time during today?

GAUDRON J: Yes, thank you, Mr Game.

MR GAME: If the Court pleases, the first matter that I wish to address is ground 3, which relates to the directions which were given by the trial judge in relation to the Crown Prosecutor’s address to the effect that the person who committed this offence was of disturbed mind. If I could take your Honours briefly to our written submissions at page 7 ‑ ‑ ‑

KIRBY J: This was properly reserved at the trial, I think, was it?

MR GAME: It certainly was, your Honour.

KIRBY J: In fact, counsel for your client asked that the directions be withdrawn on this point.

MR GAME: Yes, your Honour. It was fought about, yes. It was very much in contest at the trial.

KIRBY J: How long did the directions go?

MR GAME: In pages?

KIRBY J: The total. I know one cannot do it by mathematics.

MR GAME: The directions on this topic went for five, and I think that the total summing up was – my junior will remind me, but I think it was 54 or 55 pages. But one of our important points is that what defence counsel said should be put to the jury was not put. If I could just take the Court briefly to our written submissions at page 7, just because there it is extracted material relating to the good character of the appellant. The effect of the evidence was that the appellant had no motive to murder his family.

KIRBY J: No known motive.

MR GAME: No known motive, but actually we would contest that proposition, your Honour. We would say that the evidence showed that he had no motive – no known motive.

McHUGH J: It depends what inference you might draw from the note, if you assume that it was his note.

MR GAME: The note does not disclose a motive though, your Honour.

KIRBY J: The devil himself knoweth not the motives of man.

MR GAME: That is true. A motive was advanced by the Crown but not successfully. There is no need to take your Honours to it, but at 759 to 760 the Crown advanced a proposition that there were many confrontations between him and his mother over the use of the car in the preceding months. The question was allowed but he refuted it and there was no evidence to support that proposition.

KIRBY J: It is pretty thin anyway. What child does not have confrontations with a parent?

MR GAME: Over the car or otherwise, so there would not be many surviving parents. But one sees at paragraphs 42 and following extracted material relating to his good character. There is a reference there in paragraph 45 to the appellant’s father and he did say that the appellant was devoted to his mother, and that is also at 458 and I do not need to take your Honours to that. He got on well with his siblings, and that is at 459. On 10 March they had had a happy day at Kangaroo Valley – that is the Sunday – with the family of the girlfriend. There was evidence that on the day of the killing he had helped his mother repair the fish pond.

That just gives the Court an outline of the material relating to the issue of good character and absence of motive. If we go from there to page 800 in the appeal books, volume 3. The addresses were not transcribed. Mr Ramage complains about the prosecutor’s address and he complained about two things that had been put, one, that in cases “where there has been extreme violence visited, there is quite often no motive”. We see that at line 15. The second at line 20:

The Crown has now put as a proposition that the actions of the accused were the actions of a person with a disturbed mind. That is, it was put it was a disturbed mind that committed these offences. The Crown knows very well that it has not sought to have the accused examined at any stage, and indeed, he knows – though it will not be before this jury – something very clear, that is there have been examinations conducted as directions by the Supreme Court, and they have come to a totally contrary proposition.

CALLINAN J: Mr Game, I did not understand this point because everybody seemed to assume, or certainly on your side, that “disturbed” had to be equated with somebody who was mentally ill in some way. In ordinary speech people often talk about “a disturbed mind”. It does not necessarily, I would not have thought, imply any mental illness.

MR GAME: In our submission, it does. It implies that the person is – it does not have to imply a medical condition but it implies that the person has some underlying pathology that ‑ ‑ ‑

CALLINAN J: Not necessarily. Why? I mean, people ‑ often their minds are disturbed by some event or some occasion. I do not think that it by any means implies mental instability of any kind.

MR GAME: In the context of a highly violent murder, with three killings, it must imply, in our submission, something quite serious.

KIRBY J: And of family members, as it is alleged.

MR GAME: Yes, and of family ‑ something quite serious and something that would enable the person to have a covert motive which is where it is all heading.

KIRBY J: Or covert explanation.

MR GAME: Yes.

HAYNE J: What does that mean, Mr Game? What do you mean, a covert motive?

MR GAME: What it means is that he cannot know what his motive is because he is, for instance, a psychopath, or, for instance, he is a person with something that drives him that is not a normal rational thought process. For instance, if he had killed the dog in some meaningless sense then that would be evidence of a disturbed mind.

HAYNE J: The jury were confronted with evidence of a particularly brutal, horrible killing – three of them.

MR GAME: Quite.

HAYNE J: What was this comment other than an uniformed futile piece of colourful speculation by the prosecution? What were the jury to make of it, do you say, that worked to your client’s detriment?

MR GAME: What we say is that it worked this way: the prosecutor says, “Look, we have got a violent death and we have got a circumstantial case” and the defence say, “We have no motive and we have good character”. The prosecutor says, “Look, we have a violent death and it shows that the violent death is evidence of a disturbed mind. Disturbed mind equals or leads to the conclusion that you can say the person has a secret motive”.

HAYNE J: I just do not follow what you mean by that, Mr Game. You have to explain it further.

McHUGH J: The expression in the context seems to me to record the result, not the motive. I mean, this was killings that were so violent that the sergeant of police who attended and saw the people has never been able to work again as a policeman. Now, why would not a lay person think that a person who committed this had a disturbed mind? That does not say it was your client, but if you conclude it was your client, a layman might well think he must have had a disturbed mind.

KIRBY J: But your point is your lack of motive plus your good character was the strength of your case and it hypothesised that there was no reason and then at the last minute the prosecutor postulates a reason, without a proper foundation in evidence for it, and does so in a way which is highly prejudicial to you.

MR GAME: Yes.

HAYNE J: But why is it prejudicial to you? Explain to me in words of one syllable what the prejudice is.

MR GAME: I will not do one syllable but ‑ ‑ ‑

HAYNE J: It is about all I can cope with, Mr Game.

MR GAME: Is that all those special leaves that you did? Well, what it is really doing, it is saying that there is – because he has a disturbed mind – and they are saying the accused has a disturbed mind. They are saying couple the violent death with the circumstances and you would conclude that the accused has a disturbed mind.

GAUDRON J: Is there not an unstated premise in your argument that we may have to come to? You say absence of motive is itself, ordinarily, a positive matter to be taken into account on the question of guilt or innocence.

MR GAME: Yes.

GAUDRON J: Not only, I think you say, did you not get a direction in those terms but the effect of saying it must have been the product of a disturbed mind was to detract from the positive significance of the absence of motive.

MR GAME: Exactly.

GAUDRON J: But you have to make good your first proposition, do you not, that the absence of motive is a positive consideration to be taken into account?

MR GAME: Well, your Honour, we make that submission. We have dealt with that in our reply, it having ‑ ‑ ‑

GAUDRON J: But is it correct?

MR GAME: Well, Plomp says it is and O’Donohue says it is. Plomp, in the judgment of Justice Menzies at 250 ‑ ‑ ‑

KIRBY J: This is as a matter of fact, or as a matter of law, or both? Is it a requirement that a judge direct a jury? That is a third question.

MR GAME: The judge in O’Donohue directed the jury that it was a neutral, in effect, and it was held to be an error. That is a New South Wales Court of Criminal Appeal case that we have provided the Court with. But in Plomp, in the judgment at page 250, there is a reference to Chief Justice Griffith’s judgment in Mutual Life Insurance v Moss. At 249, at about point 4, it starts:

When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act is the more important becomes the question of motive. When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form ‑ ‑ ‑

GAUDRON J: But that goes to intention.

MR GAME: Yes, but it says ‑ ‑ ‑

GAUDRON J: I mean, there was no issue here that whoever did these acts intended the consequence.

MR GAME: Yes, but if you read on to the following page:

It would be just as unrealistic to treat the presence of a motive for doing an act which, if it occurred at all, was done by the accused as irrelevant to determining whether he did it as to treat the absence of a motive as irrelevant to that determination; yet the absence of a motive is commonly relied upon as a circumstance tending in favour of accidental death as against suicide or in favour of a person accused of a crime.

In the case of O’Donohue, if I could take the Court to that ‑ ‑ ‑

GAUDRON J: But does that really go to anything more than how a jury might infer intention?

MR GAME: It does, your Honour. It is absence of motive in the person, we would say, is a circumstance favouring innocence.

HAYNE J: Would it have been open to the prosecutor in this case to say, “The defence is the accused had no motive. None was demonstrated. Absence of motive is relied on in his support but I say to you there are some crimes which are not committed out of reason but are committed with no reason.” Would that have been open?

MR GAME: We would submit not, your Honour.

HAYNE J: That is, does your submission at least tend in the direction of contending that absence of motive can never be challenged on the basis that some criminal conduct is unreasoned and unreasonable?

MR GAME: No, I would not go that far, your Honour. I would go so far as to say that in circumstances where you have a young man who has no reason to kill his family, then that itself is a circumstance that makes it unlikely that he did kill his family, and that is all I would say.

If I could take the Court to the decision in O’Donohue on this same point that your Honour Justice Gaudron raised a moment ago. Excuse me, I seem to have misplaced the very notes I am using, it is not the first time. In O’Donohue [2001] NSWCCA 458, paragraphs 24 and following were the relevant paragraphs. If we go from paragraph 24, what was said in that case. Then the judge said at paragraph 25:

That’s because motive plays no part in your consideration of this case.

The Court of Criminal Appeal held that that direction was in error, so that in a case where there is an absence of motive, O’Donohue stands for the proposition that it is in error to say that motive plays no part in the court’s consideration of the case, relying on Plomp. If O’Donohue be right, and if the passage in Justice Menzies judgment in Plomp be right, we would say that absence of motive as a general proposition is a positive circumstance in favour of innocence.

KIRBY J: Did the Court of Criminal Appeal have O’Donohue or was it before O’Donohue, in this case?

MR GAME: This case was handed down in March 2000 and O’Donohue was not handed down until ‑ ‑ ‑

KIRBY J: November.

MR GAME: 2001, so the answer is it had not been handed down at that point. What actually was done in this case by the trial judge, we submit, made the whole situation substantially worse. Before I come to that could I just say in answer to the first question that your Honour Justice Callinan said this morning. Your Honour said, why is it that this “disturbed mind” evidence goes any further than suggesting some kind of disturbance?

CALLINAN J: A temporary aberration or fury, or it could mean anything, well short of a mental illness.

MR GAME: Your Honour, the whole point about character evidence is that character evidence brings in every aspect of a person’s character. So it brings in their disposition. So that if they have a disposition to behave in a particular way, then the prosecution can introduce that evidence into the case. So that if he has had outbursts of anger on any previous occasion or if, as I said, he has irrationally killed the dog or something like that, then that evidence would be admissible. Section 110 of the Evidence Act is in the broadest possible terms ‑ ‑ ‑

CALLINAN J: We are not in that territory, Mr Game. A random remark, as it were, by a Crown Prosecutor offered as a possible explanation for otherwise inexplicable conduct and not an explanation which to me suggests any kind of mental instability. I do not think it really has anything to do with your evidence of good character or matters of that kind or, indeed, even motive.

MR GAME: Your Honour, it was said to meet the issue of motive, and the judge made that quite clear in his directions to the jury. It was explicitly put on the basis that it was said to meet the defence arguments which, no doubt, would be forcefully put in defence address that the absence of motive was a positive circumstance in favour of innocence, and so much is clear from what the judge had to say.

CALLINAN J: The point is whether he was disturbed or not, in any sense, either did or did not meet the submission that he was of good character.

MR GAME: Sorry, I missed the last few words, your Honour.

CALLINAN J: Either did or did not meet the submission that he was of good character. My own thinking on it would be that it would not. It would not go anywhere near meeting those submissions, but that is a question of fact really for the jury. The jury would be searching around in their minds for some explanation. It is only natural that they would be.

MR GAME: They were searching around for an explanation and the prosecutor was trying to give them one that met the issue of motive.

CALLINAN J: He may not have succeeded, but it does not seem to me ‑ ‑ ‑

MR GAME: But he was not entitled to put this submission.

CALLINAN J: I will need a lot of persuasion about that, Mr Game, I really will.

MR GAME: I will endeavour to do so, your Honour. If I could take the Court from ‑ ‑ ‑

KIRBY J: We have to be careful, as you would understand, putting straitjackets on either judges or counsel. There have to be limits, but here we are parsing and analysing what the prosecutor said in the flourish of an address. It is putting a great burden on criminal trials for Courts of Criminal Appeal or this Court to interfere for this matter. The judge did try to correct it. It may be more to your point that he made things worse.

MR GAME: We say that he did make things worse, but I will come to that in a moment.

CALLINAN J: Mr Game, would it be wrong for a Crown Prosecutor to say to the jury, “This may strike you as aberrational behaviour, but people do act in aberrated ways from time to time”? Would that be wrong?

KIRBY J: You are on your feet and you are in the middle of your address and you are about to say something and you have to ask yourself, “Am I going to cause the High Court to set aside a jury’s verdict after a long trial”.

MR GAME: Aberrated behaviour is less troubling than disturbed.

CALLINAN J: Not to me it is not. Indeed, I doubt whether it means anything different in the circumstances. It is certainly capable of meaning exactly the same thing, I would have thought, as “disturbed”. Might I say this, Mr Game: it does not strike me at the moment that any jury, no matter what a judge might say about it, could be satisfied that it of itself was an answer to your point about good character and absence of motive. It does not strike me as really weighing very much against your client in the balance against those two powerful matters. There may be other matters against your client but I do not find that one at all very convincing, I have to say.

MR GAME: In my submission, it is relatively clear that this particular aspect of the address had some prominence, and it clearly had some prominence when one looks at the way in which defence counsel responded to it and what the prosecutor then said at the bottom of pages 800 and 801 about the issue.

KIRBY J: I have not read this, so, if it is important, we had better look at that.

CALLINAN J: At the bottom of page 800 the Crown Prosecutor is simply recapitulating. He is trying to summarise what he said.

MR GAME: Then at the top of page 801:

The second matter, disturbed mind, what my actual words were I’m not sure . . . I did make reference to the person who is responsible for these acts, it would be the product of a disturbed mind. Now again in my submission, because of the nature of the acts themselves, that again is a matter which I would be entitled to comment on. As a general proposition, anybody responsible for these acts must have had a disturbed mind.

McHUGH J: That is why I said to you that it is describing the result, whoever was responsible. It does not go to the issue of who was responsible. It says whoever was responsible for this has a disturbed mind. I would have thought that was fairly obvious.

MR GAME: It says “disturbed mind”, so what it is saying is: violent death plus circumstantial case trumps evidence of no motive.

McHUGH J: No, it does not. It is just a comment, a throwaway line by a prosecutor. Really, if convictions in criminal trials are going to be set aside for a remark like this, then God help the administration of justice in this country. This is a long trial, you have several volumes of evidence. Would you think a remark like this is going to influence a jury? The jury may well have thought, “That’s a stupid proposition to be put by the Crown Prosecutor. I don’t think much of that submission. It might reflect on the whole of his submissions”.

KIRBY J: Your better point may be that the judge in trying to correct things made things worse by saying there is no evidence one way or the other, whereas your point is that there is evidence, on your client’s side of the ledger, and the judge then misdirected the jury.

MR GAME: Yes. Perhaps if I could take the Court to what the judge said. The character directions are at 820 and then at 822 the judge starts with respect to motive. We see directions on 822. On 822 down to about line 40 the judge appears to be saying that motive may be unknowable, that the judge did not say at any point – what he should have said about it, we would submit, is that the absence of motive was a positive circumstance.

KIRBY J: So your complaints are two: the judge did not give you the positive statement about the absence of motive and then, secondly, in trying to correct any possible prejudice in the Crown Prosecutor’s address, he compounded things by saying there was no evidence one way or the other.

MR GAME: Yes, but then it goes further, your Honour. It says:

the Crown was not bound to prove the matter of motive.

That is true enough. Then it is said:

It was said that the Crown Prosecutor had observed to you that frequently it was the case that crimes of great violence had been committed without motive . . . I did not understand him to say that there was no motive; merely that the motive was unknown.

Then it goes on at line 25:

But if I may just recapitulate with you, the law is that the Crown is not obliged to prove motive. Further, that the Crown may prove motive if it wishes and if it can, but the proof of motive is no part of the proof of guilt of the crime –

Just pausing there, it seems to be suggesting that motive is, as it were, some optional extra.

GAUDRON J: I think you have to come back to this proposition, it may not be an optional extra where intention is in issue but what else would motive go to, really? You see, you may deduce from motive, intent.

MR GAME: If a person has a reason to do something, then you will more readily conclude that they did it.

KIRBY J: It goes to the proof of guilt on the high standard that our law requires that most children do not murder their mother and siblings.

MR GAME: Yes. As they said in Plomp – as Justice Menzies said:

Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his ‘malice aforethought’, inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not”.

That is the rationale for it, your Honour.

CALLINAN J: You really say that because the Crown does not have to prove it, it does not mean that it cannot be a very powerful factor if its absence is demonstrated by the defence.

MR GAME: That is correct, your Honour.

CALLINAN J: I wondered whether perhaps you understated it a little. You really did. I would have thought the father’s evidence really negatived motive, in so far as we could ever know whether there was a motive ‑ ‑ ‑

MR GAME: That is what I was trying to say before. I may not have said it very well, but I was trying to say that this is not a case of unknown motive; this is a case of no motive.

CALLINAN J: You showed that it was unlikely that he did have a motive, at least as far as that.

MR GAME: What I am saying is, if you go back to that line at 15, this may not be the right word, but there is something like an elision, when you say:

I did not understand him to say that there was no motive; merely that the motive was unknown.

But you are shifting between two very different ideas.

CALLINAN J: I understand that submission.

HAYNE J: Do you say that this was a case of proved absence of motive, rather than absence of proved motive?

MR GAME: Yes, your Honour.

KIRBY J: Well, I just have a little anxiety about that because of the incapacity of proof, and a particular proof by the Crown which may not be in the position to know all the complex motivations of any human being.

MR GAME: But in so far as one can know, those facts were extracted in this case.

KIRBY J: You say the father’s testimony and that of your client lifted it up to a case where it simply was not anything on the point. Apart from character evidence, there was positive testimony against any motive.

MR GAME: Yes, your Honour. Now, if we go on to line 35, page 823:

The matter which is argued by counsel or related to what was said about that, is an expression used by the Crown Prosecutor when he was talking about motive and making submissions to you and he went on to say that the three killings and of the level of violence with which you had to deal would have been the product of a disturbed mind.

Now, it is quite clear from that passage that what he is saying is said to meet the argument about motive, and that connection is very important. The judge is acknowledging it, without anybody disputing it, that that is the connection that the prosecutor was making. It is said against us, in our friend’s submissions, that what was said about disturbed mind had nothing to do with what was said about motive, but what appears here at line 36, in our submission, is the clearest indication to the contrary. His Honour went on to say:

Let me say that at the very least I would suggest to you that that was an unfortunate expression for counsel to use in the flourish of advocacy. This is not a case about disturbed mind.

Then his Honour referred to “there were two elements to murder”. Then he said:

However, the remark by the Crown Prosecutor provoked – and I am not being critical of either him or his opponent – this response. In the course of address on Friday counsel for the accused said there was no evidence here or anywhere else that the accused had a disturbed mind.

In our submission, that is something akin to a Jones v Dunkel type submission, where they would have had it in their power to call it, if it existed, but they did not call it, and you can take it that such evidence, if they had called it, would not have assisted them – is the Jones v Dunkel direction and it is similar, in my submission, to this. If I can go on:

I confirm to you there is no evidence here –

and we would put the emphasis on the word “here” in that sentence –

that the accused has a disturbed mind or anything that might be described ‑ ‑ ‑

KIRBY J: Now, if the judge had stopped there, would you have a complaint?

MR GAME: Only about the word “here”.

KIRBY J: Really. It seems to me the problem is when he added the words “one way or other” ‑ ‑ ‑

MR GAME: Well, that makes it worse, yes.

KIRBY J: ‑ ‑ ‑ which he said three times, I think. At least twice.

MR GAME: One of the things he said, which I will come to shortly, is that he explicitly told the jury to put to one side defence counsel’s submission.

KIRBY J: Anyway, that is a different thing.

MR GAME: It is a part of this, but anyway.

KIRBY J: Stay on your course.

MR GAME: Next:

So far as anywhere else is concerned, neither you nor I know whether there is such evidence one way or other and it is entirely irrelevant.

We say that there is an important – there may be more than one – but that sentence is highly problematic.

HAYNE J: Why?

MR GAME: One way ‑ ‑ ‑

HAYNE J: The judge has been confronted with a statement by the prosecutor that was, at best, possibly unwise. The judge can see the jury wandering off into areas of sanity, diminished responsibility and the like, where there has been no evidence led by either side that bears on the issue. I read this judge as trying to dissuade the jury from heading down some inquiry into sanity and the like based on this foolish remark of the Crown.

CALLINAN J: Invited by the submissions of defence counsel who wanted it corrected.

MR GAME: This does not correct it, in our submission. It says:

neither you nor I know whether there is such evidence one way or other –

It suggests that there might be such evidence elsewhere, “or other” very much suggests that there might. In fact, what comes about diminished responsibility and mental illness, in our submission, makes it worse because it suggests that if this was that type of case then you might have such evidence but it is not that type of case. In any case, whether or not he is of disturbed mind is not entirely irrelevant. What the defence is saying to the jury is that when he has spent the day with his mother in fixing the fish pond he had a placid temperament and he had a placid temperament when he asked if he could drive the Toyota, that he did not have a disturbed mind however you describe it. There was evidence in this case that however you describe it and whatever the jury might make of those two words “disturbed mind”, the appellant did not have a disturbed mind, so there was evidence in the case and the jury did have it and it was not entirely irrelevant. In fact, it was very much at the heart of the defence case, that he had a placid temperament.

Then it goes on further down, “I expect in the course”, and then it goes on to say a reference to “psychiatrists”, a reference to how “an accused is in terms of normality”.

Sometimes issues arise in a trial, for example where a person is charged with murder, as to whether or not that person should be found not guilty on the grounds of mental illness.

Then it goes on to say it involves a particular inquiry as to whether or not the person appreciated “the nature and quality of the act”.

Sometimes, in a cases of murder, defences, as they are called, arise concerning what is called diminished responsibility.

Then his Honour goes on at line 19 to say – and he says that can result in manslaughter ‑ “No such issue arises in this case.” So he is saying to the jury that this is not a medical case, this is not a diminished responsibility or a mental illness case where you might get such evidence. Whatever the jury thought about disturbed mind to start with and whether or not was disturbed mind of the kind that your Honour Justice Callinan referred to, by this time they are thinking it may be something much more significant than that sort of thing, and it would have been within the power of the prosecutor to call evidence that this accused has a disturbed mind of this particular type.

Lowery is a case that we have put on our list of authorities, where evidence was led by one accused against another, where one had raised evidence of good character, that the person was in effect a psychopath. One of the reasons for it being said to be admissible was because the accused had raised evidence of good character. Now, it goes on:

No such issue arises in this case. If such an issue had arisen, it is conceivable that evidence could have been called about the state of mind of the accused.

So what this is suggesting is that that type of evidence has been cut out of this case because it is not a medical case. Then he goes on to say:

I emphasise to you there is no such evidence and I am not suggesting I know one way or other whether any such evidence exists.

Once again that, in our submission, is problematic for the reasons that I gave before. Then it goes on to say:

This matter has been somewhat elaborated, starting with a flourish by the Crown Prosecutor, as a murder by a disturbed mind and responded by his opponent that if that is what he wanted to suggest you would have heard about it. You would have heard evidence and there were no questions even hinting that the accused had a disturbed mind.

But his Honour did not go on to endorse that statement. His Honour went on to say that the jury should disregard that statement by defence counsel.

For my part and this is a comment of mine, I do not know what the Crown Prosecutor meant by his expression “disturbed mind” but this I can tell you, there is no issue in this case about the state of mind of the accused other than the allegation that if he was the person that caused the death, at the time of causing the death he intended to kill or do grievous bodily harm.

As I said before, there was plenty of evidence in the case about the state of mind of the accused. The defence has brought that and made that a live issue in the case. I would remind your Honours of the breadth of section 110 when it says that opinion hearsay, tendency and the like, none of them apply to section 110. So section 110 goes very broad in its application. As I said:

there is no issue in this case about the state of mind of the accused other than the allegation that if he was the person that caused the death, at the time of causing the death he intended to kill or do grievous bodily harm.

His Honour went on to say:

You should put entirely to one side, first, the observation by the Crown Prosecutor about “disturbed mind” and secondly the observations by his opponent that you could have heard evidence called by the Crown or otherwise about it.

As I said before, the defence counsel’s submission was legally correct, and his Honour should not have told the jury to put it to one side. Then his Honour goes on ‑ ‑ ‑

McHUGH J: All the judge was doing was just putting this out of the jury’s consideration altogether.

MR GAME: He was not – this language ‑ ‑ ‑

McHUGH J: I will read this transcript of your argument, but I have to say this is one of the poorest arguments I have ever heard from you, Mr Game. Maybe there is something the matter with me, but I cannot see any substance in this argument at the moment.

MR GAME: Could I be permitted to ‑ ‑ ‑

GAUDRON J: You are at least entitled to say this, are you not?

MR GAME: I am sorry, I missed ‑ ‑ ‑

GAUDRON J: You are at least entitled to say this, that the proper direction would have been a Jones v Dunkel direction.

MR GAME: Yes. Sorry, too, a proper direction would have been that the evidence of “no motive” was a positive circumstance coupled with a Jones v Dunkel ‑ ‑ ‑

GAUDRON J: That if there had been evidence, the Crown would have been entitled to lead it.

MR GAME: Yes.

GAUDRON J: Then to go on and say, “it wasn’t led so put out of your mind any possibility”.

MR GAME: Yes, your Honour.

CALLINAN J: Possibly obliged to lead it, not merely entitled to; possibly obliged to.

MR GAME: Yes. If I could just go on ‑ ‑ ‑

KIRBY J: Can I just ask you, because you can answer this, Jones v Dunkel does not apply to the accused in a criminal trial but it does apply to the Crown, does it not?

MR GAME: It does not apply to the accused in a criminal trial.

KIRBY J: No. What is the case that says that? That has been said in this Court, I think.

HAYNE J: Azzopardi probably is the most recent.

MR GAME: Yes, Azzopardi. Harper, yes, is the one, I think, that first said it. When I say first, most recently first said it.

KIRBY J: We just have to be a little careful about bandying Jones v Dunkel around. It might just lead people into thinking it applies to the accused.

MR GAME: If I could go on with what appears on page 826.

KIRBY J: Why did his Honour go on and on and on about it? It must have been a great contretemps because he is really ‑ ‑ ‑

MR GAME: Well, the thing must have had some – I know that your Honour Justice McHugh does not accept many, or any, of the steps in my argument, but it must have had quite some prominence in the prosecutor’s address for the judge to have gone on about it in this particular ‑ ‑ ‑

KIRBY J: He was probably conscious that somebody would come up to the Court of Criminal Appeal and maybe the High Court, pour over this point, and he was going to do what he could do to try and save the trial which is something never far distant from the minds of trial judges. It is clear that that is what he was trying to do. Whether he succeeded is the point.

MR GAME: He received another application at the end of this, but I will come to that shortly, but his Honour goes on:

It is, as I said to you earlier, to say the least, unfortunate that this contretemps has arisen but what I tell you as a matter of law is that you in this case put entirely –

so it is now a direction of law that he is putting to the jury –

that you in this case put entirely to one side both the observations as to the disturbance of mind made by the Crown Prosecutor and by counsel for the accused –

So the Jones v Dunkel submission has not only gone by the wayside but the jury have been told, as a matter of law, that it was wrong and defence counsel should not have put it. That is the effect of what is being said. Defence counsel should not have put it – that really does raise the spectre of there being, possibly out there, some evidence that defence counsel knew about which was adverse to his client, that elsewhere, the constant reference to “elsewhere” suggests that there may be such evidence. Then his Honour goes on:

because one thing is certain in this case, there is no evidence as to the state of mind of the accused, so far as disturbance –

of mind –

is concerned one way or the other.

Once again, we say that that is wrong, there is such evidence in the case, however the jury construed “disturbance” of mind. What you are invited to infer ‑ and why we would distinguish that from something like aberrance, maybe, that your Honour Justice Callinan referred to, is that aberrance suggests something may be temporary, “disturbance” of mind suggests something that is deep seated in a person.

CALLINAN J: No, not to me, it does not, you can have a temporary disturbance of the mind or you can have a permanent one. Why does it suggest permanence?

MR GAME: Well, because the jury have been told that disturbance of mind is something that comes in in psychiatric cases in respect of mental illness and diminished responsibility. Obviously, in our submission, it would embrace the notion of something more deep seated than an aberrance.

CALLINAN J: But the judge dealt with it in that way because that was the substance of the complaint that was made by defence counsel. It was defence counsel who took it this way, and I do not think there is any need at all to take it that way. Whether in fact the judge when he summed up may have made it worse, or may have created the problem, is another question. I am still not persuaded that the first use of it by the Crown Prosecutor was wrong or misleading in any way at all. I think, frankly, it was a suggestion he was entitled to make.

KIRBY J: This all goes to show that one’s impression on these things is a matter that is personal. I take a different view and the Court of Criminal Appeal unanimously took a different view, but I think you see where the lines are drawn.

MR GAME: Yes, your Honour.

HAYNE J: In the end, is this direction of the trial judge anything more than an over-elaborate direction to the jury, “Attend to the evidence that’s been given. Don’t speculate about what wasn’t given and don’t listen to what counsel for the prosecution said to you about disturbed mind”? Is that not all his Honour was saying in an overly-elaborate fashion?

MR GAME: The jury are being told, one, that there is no evidence one way or the other about disturbed mind, and that is wrong, and they are being ‑ ‑ ‑

McHUGH J: Yes, but that is the difficulty I have with the whole of your argument on this case. You seem to be taking these remarks of the judge as in some way intending to undermine the evidence of good character or the evidence of no motive. It does not seem to me to touch any of those aspects. You have to make that good to get your case off the ground. That is why I cannot see any substance in it at the moment, Mr Game.

MR GAME: But the whole argument is addressed to the issue of motive.

McHUGH J: That is because that is the context. The Crown Prosecutor has made this remark. I have not looked at the photographs in this case. I assume that they are there. The destruction of the mother’s features was so extensive that the coroner required blood samples to be taken to prove her identity, so, if you saw somebody’s face smashed in with a blunt weapon, why would you not think that it was a frenzied beating, as I think the trial judge said on sentencing? The Crown Prosecutor makes this remark. It does not seem to me to have any logic about it in terms of the issues. Then Mr Ramage gets up and makes a great play about it. He apparently says something about it and the judge thinks he has to intervene. I agree with those who say the judge probably went on for much too long. In fact, I am sure he went on for much too long about it, but it does not seem to me to undermine the case on good character.

MR GAME: But he has neutralised, in our submission, the case on absence of motive along the way. That also is in error and in an important way. That is where I started ‑ ‑ ‑

KIRBY J: Factually, the strengths of your case were, as it seems to me, the lack of apparent proved demonstrated motive and his cool conduct with his girlfriend.

MR GAME: And his demeanour, yes, with his girlfriend in the following ‑ ‑ ‑

KIRBY J: Factually, they are very powerful elements in the case – factually.

MR GAME: They were the central features of the defence case. If I could go back to visit – these directions are coming to an end, but if I could come back to the end of these directions at 826:

As I say to you ‑ ‑ ‑

KIRBY J: They do come to an end, do they?

MR GAME: I am sorry, they do come to an end:

As I say to you, I do not know precisely what the Crown Prosecutor meant when he used the phrase in the first place and I can say no more than that the response to it, which seems to me to carry the implication that the Crown was somehow seeking to raise one of the issues that I mentioned to you that you could have in some trials but not as an issue in this trial was perhaps an understandable response but nevertheless an unnecessary one. I apologise to you for spending so much time on this. I am only seeking to emphasise that you should put to one side the original remark and the response to it.

For the reasons that I have given previously, we submit that that approach was erroneous.

KIRBY J: Is there any English authority on what juries should be told on motive, or any Canadian or New Zealand authority on the point? It is amazing if there is not because it is often a very important issue.

MR GAME: I have to confess ‑ ‑ ‑

McHUGH J: Plomp decides in express terms, does it not, that motive is relevant not merely to intention but to the fact of the actus reus, in effect?

MR GAME: Yes.

McHUGH J: And in Chamberlain Justice Murphy, and I think Justice Deane, put absence of motive as very strong factors. I would have thought it was not even arguable that absence of motive was not a relevant factor. Plainly there is both – so far as I am concerned, anyway – whether or not the accused did the act and whether or not he or she had the relevant intention.

KIRBY J: But your first submission to us was that the judge should have affirmatively told the jury that the fact that no motive was demonstrated, indeed, that there was no proved motive and that there was evidence to the contrary.

McHUGH J: Is that the fact that the judge never left absence of motive to the jury?

MR GAME: It is the fact, your Honour.

McHUGH J: Is it?

GAUDRON J: What did the trial judge say about character evidence in ‑ ‑ ‑

MR GAME: That appears at page 820.

GAUDRON J: Page 820. You see, I would have thought that proper directions about character and absence of motive might well have meant that the directions about what we can call the contretemps were really just a side issue.

MR GAME: Yes, your Honour. You could really deal with it in the context of proper directions on motive and character and you would not have to go on and on and on.

GAUDRON J: This is a funny thing.

MR GAME: Which page, your Honour?

GAUDRON J: At page 820:

If you accept that the accused is a person of good character –

that is a funny way to put it, that ‑ ‑ ‑

MR GAME: Can I just stop you for a moment?

GAUDRON J: Yes.

MR GAME: I mean, it is needless to say there are cases that say that character evidence just goes in with all of the other evidence and there is no onus on the accused with respect to character evidence, although there used to be a New South Wales case that said there was an onus on the balance of probabilities, and that has been long since overturned. So, the accused does not have to establish good character, in any sense.

GAUDRON J: No, but that is why I say it is a funny way to say that if you accept that the accused is a person of good character, then it goes on:

that fact may persuade you that the Crown evidence must be mistaken ‑ ‑ ‑

MR GAME: Which line is that at, your Honour?

GAUDRON J: Lines 34 and 35.

KIRBY J: Page 820.

MR GAME: He says the same thing again at line 49, “if you accept” ‑ ‑ ‑

GAUDRON J: That “may persuade you to give greater weight to his evidence given on oath”.

KIRBY J: He does say “that it may show that it is unlikely that he committed the offence alleged against him” at line 45.

MR GAME: Yes.

HAYNE J: As this trial was run, Mr Game, accepting that you begin with this issue about character, motive and the like, this trial turned, did it not, on the note. That is where the weight of the judge’s summing up is to be found, it is where the weight of counsel’s argument was put, and your client stood or fell on what answers he gave concerning the note. Are we not off on a side issue according to the way this trial was run?

MR GAME: Your Honour, I am going to say something more about the note shortly. What we say about the note is, first, there seems to be an excessive weight given to the explanation given. That is to say it is the note, absent an explanation, which must be the force in the Crown case.

HAYNE J: The way your client gave his evidence and the answers he gave in is evidence which, presumably, in the atmosphere of this trial, dominated the trial.

MR GAME: They did with respect to probably his credibility. I am trying to make the point that the rejection of an explanation it not itself evidence of his guilt. One has to go back into the note and see what the note is probative of.

HAYNE J: The point I want you to grapple with at the moment is the suggestion I am putting to you that this question of character, motive, proved absence of motive if it rose so high, is a side issue in the way this trial was conducted.

MR GAME: My answer to that has to be the answer is in sort of weighing what is on both sides and what your Honour is really putting to me is that there is an awful lot on the Crown side and there is not terribly much on the defence side.

HAYNE J: No. What I am saying to you is that when you read the whole of the judge’s charge, the thrust of the charge is directed to getting the jury to focus on the way in which the accused man explained this note. What I am asking for your help about is whether I am right or wrong to draw from that the conclusion that that is where the weight of issues at this trial lay?

MR GAME: We do not accept that proposition. What we do accept is that that is the way the Crown put the weight of their case, on the note and on the explanation. I think the judge did say at some point, “Just because I say more about the Crown case and less about the defence case” – I am pretty sure it is in this case – “doesn’t mean that there’s more weight to be given to what I say about the Crown than about the defence”, so he may have gone on about it. It does not mean that the weight of the case is put. It certainly would not be that the weight of the case put by defence counsel would be on the note.

I think the defence counsel would be trying to find a way of saying that the Crown had not discharged their burden, because why would this young man in these circumstances with this background, with this personality and temperament, living in a happy family, suddenly take to three members of his family and commit the most violent death that the forensic pathologist has ever seen or the sergeant has ever seen? I accept what your Honour Justice Hayne puts in so far as it describes in terms of content how much was put about it, but I do not think that it is fair to say that was the weight of the case, at least from the point of view of the defence.

KIRBY J: Where does the judge deal with motive in his charge? Where does he say ‑ ‑ ‑

MR GAME: In his remarks or in his address?

KIRBY J: In his charge to the jury.

MR GAME: Here on page 822.

KIRBY J: That is all, is it?

MR GAME: That is all I could find, your Honour.

CALLINAN J: Mr Game, I could not find any complaint about that. There is one, is there?

MR GAME: There is not a complaint about it, your Honour.

McHUGH J: No, and there was no ground of appeal either in the Court of Criminal Appeal or this Court.

MR GAME: No, your Honour, but it is really part of the same argument about the way in which the judge directed the jury on ‑ ‑ ‑

CALLINAN J: I think you should be putting it in the alternative, frankly, Mr Game.

McHUGH J: It is a different ground altogether. I do not think it is ‑ ‑ ‑

MR GAME: I know this may seem a bit like taking advice on the run, but I think I had better make an application to amend paragraph 3 and add the words, “on the question of motive and whether there was evidence”. I do make that application.

GAUDRON J: We had better perhaps see what Mr Ellis says about that. There would not seem to be any prejudice to you in that, would there? Do you object to it?

MR ELLIS: No, your Honour.

KIRBY J: The only prejudice I can think is that, had it been raised in the Court of Criminal Appeal, it would have needed leave to raise the point.

MR ELLIS: Yes, that is so, and certainly perhaps a little more concentration on that topic might have taken place both in the CCA as well as here.

HAYNE J: It might also have led to a court, whether this Court or the CCA, having the assistance of knowing exactly how it was that counsel for the accused put the case to the jury. I know the New South Wales practice is not to transcribe counsel’s addresses, but it really leaves appeal courts searching to know the case that was put by each side. For my own part I regard it as entirely unsatisfactory.

MR ELLIS: I have to say that there is considerable agreement among those who appear in those courts with what your Honour said about that but, unfortunately, for financial reasons apparently, it is not provided. Some change, I am told.

CALLINAN J: Mr Game, could we get an amended notice of appeal?

GAUDRON J: Yes, well, you have leave to make that amendment.

MR GAME: May I make that – yes.

GAUDRON J: Could you read it again onto the transcript?

MR GAME: Yes. I want to add the words, “on the question of motive” ‑ ‑ ‑

KIRBY J: Where does it come in? I do not ‑ ‑ ‑

MR GAME: Paragraph 3, where it says, “on the question”. One takes, after the word “of”, put in the word “motive and”. The two words are “motive” ‑ ‑ ‑

KIRBY J: Which line of paragraph 3?

MR GAME: Line 2.

KIRBY J: But how can you say: “The Court of Criminal Appeal erred in concluding” if the matter was not put forward? I think you have to have a separate ground, do you not?

GAUDRON J: Well, the directions were in the context of motive, I suppose.

KIRBY J: I know in Ipp and other cases we have said that there is no constitutional bar, but it is pretty hard on the Court of Criminal Appeal to say they erred if there was no ground of appeal and the matter was not argued before them. I do not feel inclined to say they did err.

MR GAME: Can I ‑ ‑ ‑

CALLINAN J: Further, or alternatively, “The trial judge failed to give the jury adequate directions with respect to absence of motive.” Is that not the ground you want?

MR GAME: Yes, your Honour. What I will do – I am not sure whether I will be able to get the amended notice filed today – but if I may have leave to add another ground of appeal, that “The trial miscarried by reason of the failure of the trial judge to give adequate and proper directions on the question of motive.” I will not be able to file that today, but if I could have leave to add a ground in those terms.

GAUDRON J: Yes, very well.

MR GAME: Now, having said that, that really does address the issue with respect to motive and disturbed mind, as I wish to put it to the Court. That leaves for the Court ‑ ‑ ‑

KIRBY J: Do you say Plomp rises to the level that you are asserting? That is to say, that a judge is bound to give a jury, in the absence of proof of motive, instruction that that absence is itself evidence that weighs against guilt?

MR GAME: Yes, I do, your Honour, but I would put it in terms of there being evidence of absence of motive, rather than absence of proof of motive, because we have evidence of absence of motive in this case, rather than a want of evidence of motive.

KIRBY J: Well, your assertion is both: that you had an absence of proof of any motive and proof to the contrary.

MR GAME: Yes.

KIRBY J: Now, did Plomp deal with that particular question, or not? I think the Court has said – Justice Hayne most clearly – that we have to be very careful of adding compulsory directions, because of the variety of factual circumstances of cases.

MR GAME: Yes, I accept that, your Honour, but in O’Donohue, the case I took you to earlier this morning, that was a case where the judge had told the jury that the absence of motive was neutral. Now, that is an erroneous direction. The question will arise whether or not if there is evidence of absence of motive, the judge must direct the jury that that is a circumstance to take into account in favour of innocence, or against a conclusion of guilt.

GAUDRON J: Could the direction be any more than this, that you would seek in this case, that in the light of the evidence of the father and so forth, and the evidence of good character, you might conclude that there was no motive?

MR GAME: Yes.

GAUDRON J: And if so, you should take that into account in determining whether it has been proved beyond reasonable doubt. But I wonder if you would need that in every case. I wonder, if it is not the situation, that it was that sort of direction that was required by virtue of the trial judge’s elaboration of “disturbed mind”.

HAYNE J: May not a charge in those terms begin to flirt with an inversion of burden of proof, namely that it is somehow for the accused to demonstrate absence of motive? You have to tread a very fine line here to avoid putting a burden on the accused.

MR GAME: Yes, I understand. The same as the directions on character, if it is established, immediately you think you have to do something in respect of it.

HAYNE J: Yes.

MR GAME: In my submission, a direction could be fashioned that appropriately put it in the context of the burden of proof.

GAUDRON J: You had better do that, more precisely.

HAYNE J: Would it not be then: the Crown has led no evidence of motive, either directly or by its cross‑examination of the accused; there being no evidence of motive, that is a matter you may take to account in assessing the evidence generally? Does it go beyond that?

MR GAME: It does in a sense because we have the positive evidence of absence of motive ‑ ‑ ‑

GAUDRON J: I do not know that there is positive evidence of absence of motive.

McHUGH J: That is not positive evidence.

GAUDRON J: I think at best you could say you might infer that he was unlikely to have had a motive.

CALLINAN J: It is a negative, and you say that in so far as one can reasonably exclude a negative, you have done it. I mean it is different from proving a positive fact. But is not the correct view, based upon what Sir Owen Dixon said at page 242 of Plomp, that motive or - his Honour did not say this; he was speaking in positive terms, presence of motive, but on inference perhaps – motive, or absence of motive is a circumstance and in some cases it may be a very important circumstance in determining guilt or not. You say this is a case in which you have refuted the presence of motive to the extent that it is possible to do so and it is an important circumstance in this case. That was the sort of direction you should have got.

MR GAME: Yes.

KIRBY J: I just remember from, I think it is Mr Ellis’s submission, Justice Windeyer’s warning that you have too look at directions the judges give in the context of the issue for trial and the addresses. Now, we do not have the addresses, but it is pretty hard to believe that absence of motive was not a major aspect of the addresses in this trial. It was one of the two big strengths of your client’s case and Mr Ramage, who was very vigilant and leapt to his feet about the point that we have occupied the morning with, did not say anything about that issue.

MR GAME: In respect of the judge’s directions, that is true, and I will have to accept that.

GAUDRON J: But he did complain about the “disturbed mind” directions.

MR GAME: He thought that his case on absence of motive was slipping away from his because of what the prosecutor had said about disturbed mind.

CALLINAN J: If that is so, though, I would have expected that he would have asked the trial judge to emphasise absence of motive and would have asked for a redirection to that effect. That is why I asked you before whether there had been any applications.

MR GAME: There was not. There was an ‑ ‑ ‑

CALLINAN J: I know what the application was that was made, but it is confused with this issue of disturbance of mind.

MR GAME: Yes, there was a further submission put at 859 but it is not going to assist your Honours because it is about disturbance of mind, but there was a further submission put and at 862 his Honour said that he would not give further directions. So, you do see it further ‑ ‑ ‑

KIRBY J: He felt he had said enough.

MR GAME: Yes.

CALLINAN J: If it had been a matter that was emphasised by defence counsel, one would have expected that either the trial judge would have said something more about it or would have been invited to redirect in respect of it.

MR GAME: Maybe, your Honour, but, I know people say they do things or do not do things for tactical reasons, but there could not be any reason why he did not ask for the direction ‑ ‑ ‑

CALLINAN J: No, certainly.

MR GAME: But, really, that direction back at 822 does anything but convey to the jury that absence of motive is a positive circumstance. It is really sweeping absence of motive away because it is saying you cannot know. It says there are two things, somebody might tell you something or you might deduce it, but neither way it “is really your own subjective judgment”, he says, at line 30. He is really trying to say that motive is unknowable, that is really the heart of this direction at 822. In our submission, that tends very much against a direction that, whether it be put in the way that your Honour Justice Hayne put it or the way your Honour Justice Callinan put it, that absence of motive is a positive circumstance.

So it is belated, but we do weigh heavily on what is said at 822 in terms of our case on how absence of motive was dealt with in this case. That is all I wanted to say about what are now the grounds concerning disturbed mind and absence of motive. In respect of the unsafe ground, if I can take the Court, first, to the judgment of the Court of Criminal Appeal – I hope to deal with this ground relatively briefly – but if you look at Justice Simpson’s judgment at page 1212, line 118, she refers to here, it “could not have been that of the appellant” found in “Adrian’s hand”.

Now, I think it is fair to say that a careful examination of the evidence would lead one to the conclusion that you cannot put the appellant’s case that high and the reason for that is this. Put briefly, the strands of hair, which were about 8 to 10 centimetres long and described as dark brown, had blood on them and the blood could not be separated from the hair for the purposes of DNA analysis and the DNA analysis was such that the DNA could have come from Adrian or Sarah, so as a matter of logic, the DNA could have come from the blood.

Therefore, it leaves open the possibility that the hair came from the appellant subject to issues of colour and length. Adrian’s hair was 4 centimetres at the longest. A video of the appellant’s hair shows that is was very long, maybe as long as 30 centimetres long.

KIRBY J: Was there evidence of how long the sister, Sarah’s, was?

MR GAME: I do not recall but you can see on the photos that is at least probably 20 centimetres long, the hair is on her shoulders, you can see that, your Honour. The hair of the appellant ‑ the Court of Criminal Appeal was not prepared to make much of colour but the video would show that the hair of the appellant is either very dark brown or close to black, so the colour issue not of ‑ ‑ ‑

KIRBY J: In any case it was not as long? There is no question that it was long hair?

MR GAME: No question is was long hair, no. Where the evidence rests with respect to the hair and why the appellant must inevitably retreat from putting the hair at the forefront of the argument is that it leaves open the possibility that the hair came from him, subject to issues of length. That is to say, was it unlikely that the hair of that length – 8 to 10 centimetres – was found in Adrian’s hand, and subject to the issue of colour.

In the ground that was previously argued as ground 2, what was put at the forefront appears in paragraphs 98 to 101 of Justice Wood’s judgment at page 1206. You see, for example, it says in the last line, line 20 of paragraph 98:

To this extent the evidence does not inevitably suggest that the strands were torn from the head of an assailant.

In paragraph 101, at the end of the paragraph referring to two factors, it goes on to say:

the evidence concerning the strands was equivocal, since DNA that could have come from either Adrian or Sarah was found in the sample, and it could not be said with any certainty, that the hair inevitably must have come from an assailant who could not have been the appellant.

It is necessary for us to reframe the argument because, as I said before, we cannot rely on the DNA point with such confidence. We do put that the hair must inevitably have come from the assailant, the idea that it came from the floor or the idea that it came from Sarah’s hair, we would put that those submissions that that really is fanciful.

GAUDRON J: It may have come from the weapon?

MR GAME: It may have come from the weapon, that is possible, I suppose.

GAUDRON J: I do not know, was there any sequence of these deaths decided? No?

MR GAME: No. The brother was found dead in the garage, the mother in her bed and the sister in her bed, and I think you could infer from that that the brother was still up and that the mother and sister had gone to bed. Whether you can infer a sequence from that, I do not know. You might postulate that the brother was first.

GAUDRON J: But there is no evidence one way or the other.

MR GAME: No. The only reason I say you might postulate the brother was first was because otherwise he would have heard what was going on in the rest of the house if the others were asleep. But one of the things about this hair is, if the Court is prepared to go so far as to accept the possibility that the hair came from the assailant, or the likelihood, then it suggests a fight and the absence of any injuries on the accused may have more significance in that context.

Ultimately, the real question with respect to this hair, and why we say those passages at 98 to 101, notwithstanding the factual problem the appellant has, nevertheless bespeak some error because the real question is, “Did this evidence, together with the other evidence, including motive and character, give rise to a reasonable doubt?” not, “Was it inevitable that the hair came from an assailant and was it inevitable that the hair came from an assailant who was not the appellant?”, which is how the question is framed at paragraph 101.

Now, with respect to the balance of the judgment in respect of the verdict not being sustainable on the evidence, we would make some short points. At paragraph 108 at 1208 we see the importance given to the absence of any explanation being able to be given in respect of the items in the list. The explanation is given more weight in 109. Once again we would say that, in a sense, excessive weight is being given to the unsatisfactory explanations. That may be relevant to credit, but, ultimately, the approach must be, if we disbelieve his account, were we satisfied on the note and the other evidence of his guilt? That is the true question for the Court, in our submission.

GAUDRON J: I am not too sure that that is right in a case such as this. If you disbelieved his account, might that not be, in this case, evidence of consciousness of guilt? Might that not ‑ ‑ ‑

MR GAME: It might be but the jury were never directed in that way.

McHUGH J: That does not mean they cannot take these matters into account. Take the question of the maroon Quiksilver T‑shirt. He said it was given to him by a friend after the killing, but then since it was found in the dam with other items, his explanation seems to have been that the police planted it on him.

MR GAME: That is what he – in cross‑examination – and it was not a happy moment in cross‑examination ‑ ‑ ‑

McHUGH J: No, it certainly was not.

MR GAME: ‑ ‑ ‑ I think probably to the surprise of everyone he volunteered that the Quiksilver T‑shirt must have got into the dam, in effect, after – he said “After”, and the prosecutor said “After” again to him. “Do you really mean after?” and he said, “Yes”. So, yes, I accept that, but it must be taken that none of these matters were put, in effect, as consciousness of guilt evidence. It was not approached on that basis except ‑ ‑ ‑

HAYNE J: The note was treated, in effect, as an admission, was it not? The note was treated as a checklist of things to do after the murder and he could not explain it, was the way the Crown went to the jury, was it not?

MR GAME: I may be being excessively technical about this, but except as to credit you have to sweep aside the absence of a satisfactory explanation for the note and look at the note and ask yourself whether you are satisfied that the note points to guilt coupled with the other evidence in the case.

HAYNE J: Do we have the note in the appeal books?

MR GAME: We do not, your Honour. The Crown has a copy of the note. In our written submissions at page 6 we have extracted the items in the note. Perhaps if I could just take your Honours through that document at paragraph 35 of our submissions. Now, “through bottle down the back”, there was no evidence that he did that; “throw things down wall in roof”, there was no evidence that he did that. A pair of tracksuit pants was found in the dam, a knife was found in the dam, two T‑shirts were found in the dam, but we would ask why would you write “2 T-shirts”, why would you have an intention to throw away two T‑shirts? “Shoes 2”: as I recall, a pair of women’s running shoes were found; “hanky”, why you would throw away a hanky I do not know, but a hanky was found in the mud. No pole was found. A towel was found in the dam. “open blinds to see through”, there is no reason to that, we would suggest; “Sarah Mum” ‑ ‑ ‑

KIRBY J: Were the blinds found open by police after the police were called?

MR GAME: No, your Honour. In the mother’s bedroom there are curtains and blinds, but the curtains were closed and the blinds, as I recall, were closed. “Sarah Mum”, “Adrian”, those words were written in a different bluish pen on the right side of the note; “head butt mirror”, there is no evidence that he did that; “have shower”, the Crown case is that he would have had a shower; “throw hi fi down back”, there is no evidence of that; “hit arm with pole”, no evidence of that; and “hit leg pole” and “cut somewhere with knife”, and there is no evidence that he did that. Page 911 shows the curtains in the mother’s room and my junior tells me there are no blinds in the mother’s room. The question we would ask rhetorically is: why would you open the blinds to see through at night when you are trying to conceal your activities?

McHUGH J: No, the plan may have been that that would enable somebody outside to see what was going on in there.

GAUDRON J: There may have been things to make it look as though an intruder could have seen inside and therefore – that seems to me to read like a plan, the details of which might have been refined as time went by.

KIRBY J: The fact that your client could not remember it – I mean, that is so unlikely. Or, at least, open to a jury to believe that it is so unlikely. It is weird.

MR GAME: It is very unsatisfactory evidence, but what I was ‑ ‑ ‑

KIRBY J: And the fact that it coincides with things found thrown away.

MR GAME: We would say that the coincidence has been given more weight than its due. We would say that the note has limited significance, and then the significance is, in a way, made more significant, or sought to be made more significant, because of the unsatisfactory answers that are given about it. But can I just mention a thing about – one of the points that we would say. I have mentioned character, motive, demeanour. There are no injuries. The Crown says he might have had a blood nose, but a blood nose makes it very difficult to see how a spot of blood which went perpendicularly could have got on the wall above the mother’s bed. There was no evidence of any bruising or injury on the appellant, so the absence of injuries, we say, is important, and meets a number of the Crown’s points. But we say that the timing which the Crown – the Crown sees it as a circumstance strongly favouring their case. We say about that – it is addressed in paragraph 96 of our submissions – even if the mother and Sarah were in bed and asleep by nine o’clock, that leaves only two hours to do all this: to clean up, to cut portions out of the carpet, to clean the hallway floor – there is some evidence that it ‑ ‑ ‑

KIRBY J: What was the theory for the cutting of the portion? That some of his blood had got onto that, was it?

MR GAME: Yes. And a ‑ ‑ ‑

KIRBY J: Contradicting, or against that, is that his girlfriend did not notice any abrasion.

MR GAME: Yes. Both the girlfriend and the girlfriend’s mother said that there was no sign of any injuries on him. He slept in the same bed as the girlfriend that night.

KIRBY J: But he was a person given to nosebleeds, apparently.

MR GAME: Yes, a long time ago. There was also some curious evidence that there was a picture on the wall in the bedroom, which had been taken down quite shortly before – but I do not know that that evidence went anywhere. What I was saying about the timing is that it really does leave – you would have to have ice-cold ability to carry out a plan to do all those things: have a shower, clean up, cut part out of the carpet, put the items in a Le Sport bag and in a rucksack, dispose of the murder weapon somewhere else than in the dam – because the hammer that was found in the dam was not the murder weapon – the small sledgehammer found in the dam, sorry, was not from the house – it may have been the murder weapon but it was not from the house. The doona which the mother slept under was not found in the dam, so at least that item and the wheel brace and the jack handle must have been disposed of elsewhere ‑ do all of these things, and get to the girlfriend’s place, which itself is a half an hour drive. Get to the girlfriend’s place, either on the girlfriend’s evidence of 11.30, or the girlfriend’s mother’s evidence, at 11 pm. Now, that is quite an achievement.

KIRBY J: But the girlfriend’s place was close to where the bag was abandoned.

MR GAME: It was a few minutes from where the bag was, yes.

KIRBY J: Two minutes.

MR GAME: So the defence case really is based on character, absence of motive, demeanour, absence of injuries, timing, hair and things found in the dam, not found in the dam, things found in the dam that did not come from the home and things that were not in the dam that did come from the house, and in addition to all this, make it look like a botched robbery.

GAUDRON J: Things that were not in the dam – were not found in the dam.

MR GAME: Yes. There were some things that were not found in the dam that came from the house, for instance the doona was not found anywhere. The jack handle and the wheel brace were not found in the dam. So those are two other items. Now, finally, I wanted to make some brief submissions about the ‑ ‑ ‑

KIRBY J: Why would another person throw away your client’s bag containing a number of items, about which he made a note to himself? Why would another person do it, and not, in a sense, some of the other incriminating things that the real miscreant might have wanted to get rid of, like the doona?

MR GAME: That is the circumstance that was relied upon against the appellant.

KIRBY J: It is a pretty strong circumstance, really.

GAUDRON J: It does seem as though, if it was to be thought that there was a robbery, that was clearly a faked ‑ ‑ ‑

MR GAME: Yes, that is correct.

GAUDRON J: And one might well conclude that there was a faked robbery.

MR GAME: Yes, that is true.

GAUDRON J: That having been done, we know we are not dealing with a robber or an ordinary intruder, do we not?

MR GAME: Yes, that is true, but it means that the person was likely to have been known to the deceased. It does not necessarily mean that it was the appellant. That is how we would put our ‑ ‑ ‑

KIRBY J: Could you help me on this, at some time, since I have looked at the authorities. My understanding of the requirement of the Criminal Appeal Act and the process we are going through here is that Courts of Criminal Appeal and this Court stand back from, as it were, retrying, in the disadvantageous situation of an appellate court, the criminal trial. We neither have the time nor do we have the advantages nor the constitutional right to do that. Our role in a sense is a sort of protective one against the risk of injustice. If you have a case where there is, on one view, open to a jury properly a lot of evidence which would sustain their conclusion, it is not, as I understand it, our role simply to say, “Well, we just don’t happen to agree with the jury.”

MR GAME: That is correct.

KIRBY J: Otherwise you abolish jury trial and you substitute trial by appellate court, at a disadvantage.

MR GAME: No, quite, your Honour. Actually, the question for this Court is whether or not the Court of Criminal Appeal fell into error and, if they did, then for this Court to make its own assessment with respect to whether or not the verdict ‑ ‑ ‑

KIRBY J: But fell into what error?

MR GAME: The error must be either how they approached the question of whether the verdict was unsafe or the conclusion itself that they reached.

KIRBY J: You know that passage in Justice Wood’s reasons where he lists in abbreviated form the matters that are strongly probative of his opinion and then the list of your criticisms?

MR GAME: Yes.

KIRBY J: Well, are they not just classic jury issues that juries for hundreds of years have been grappling with and deciding?

MR GAME: The cases say – and I think Justice Wood said it himself – that the court does its best having regard to the advantage that the jury had and, if the court entertains a doubt, then normally the court will conclude that the verdict is unreasonable.

GAUDRON J: In a case such as this was there ever any need for an appellate court to see was there some piece of evidence which may have been given greater weight than overall it was entitled, than should have been the case?

MR GAME: No.

GAUDRON J: And, two, was there a reasonable hypothesis consistent with innocence? Just in this case, do you think there was anything more an appellate court should have done?

MR GAME: No, your Honour.

GAUDRON J: No.

MR GAME: But we do say ‑ ‑ ‑

GAUDRON J: And, really, there is no evidence, apart from perhaps that hair, is there, that you point to which says it might have been given greater weight than it was entitled to or lesser weight than it deserved?

MR GAME: No, that is true, your Honour, but what I do say, and I do make this submission, is that excessive weight was given to the lies, inconsistencies and unlikely explanations in the reasons of the Court of Criminal Appeal. I took the Court to 1208 and we see a similar weight given to that material at 1209.

HAYNE J: What is an appellate court to do in a case where the accused has given evidence, as he did here, and has been cross‑examined to the effect he was by the prosecutor? How does the appellate court approach the task? What question should we be asking ourselves?

MR GAME: I think the Court is entitled to assess the material on the basis that the material itself shows that substantial inroads were made to the appellant’s credit in cross‑examination. That is not a question of demeanour. I think you can actually see that on the evidence.

HAYNE J: What then are we either entitled or bound to do with that conclusion in assessing the unsafe, unsatisfactory suggestion?

MR GAME: My argument is that you therefore have to put his evidence to one side. What I am really trying to say is that something more is being done than putting his evidence to one side, that the court is doing something ‑ ‑ ‑

HAYNE J: You are left in a position of neutrality as a result of his evidence; you are not left in a position where the Crown’s case is advanced?

MR GAME: That is right. That is how we would put it. Unless you are actively advancing material as evidence of consciousness of guilt and the like - and, for instance, the explanation that not mentioning an item to the police is something that is put as a factor against him. Not mentioning the content of the prank calls which he had disclosed to his girlfriend, well, that must – if it is going to be relied upon it must be relied upon as consciousness of guilt because he mentions the calls to the police but does not say what was said.

I wanted to make some brief points addressed to the respondent’s submissions, and it should not take terribly long, but if I can just make some brief points addressed to the respondent’s submissions. First, with respect to the blood in the bedroom, there is a spot of – that is the submission that they deal with on page 2 of their submissions, the blood in the bedroom. There is evidence that the blood above the bed was non‑directional. I will just give your Honours a reference to that - at 202. It was described as a fine blood splatter at 61.

We would say it is very difficult to see how blood which goes “at 90 degrees to the wall”, as Mr Doherty said at 181, could come from a blood nose. So, we would say that that evidence does not advance the Crown case. There was evidence of a blood nose at 770. Again, I will not take your Honours to that now. So, that is the point we make about the spot of blood above the bed.

Now, with respect to the fingerprints – much of this is dealt with in our submissions in‑chief and the reason why I am dealing with this in a summary matter is simply to put any additional points that might be put with respect to the matters raised by our opponents. The fingerprints – well, we say it was his house. The fingerprints could have been there for several years. Again, I will not take your Honours to it, but Mr Moffitt, the fingerprint expert, said that at 598, line 33. With respect to the DNA on the vanity, it is not clear that that was blood, and I refer you to our submissions at page 16. Again, with respect to the cut‑out carpet which is relied upon us as evidence - and that is dealt with in our opponent’s submissions at page 3 – we say the fact that carpet is cut out does not necessarily point to the appellant and our point is made stronger by the absence of injuries.

With respect to the note, I have taken your Honours through and we have dealt with it in our written submissions at page 6 and later. We say many things were not done and some of the things on the note appear to have been meaningless, although arguments have been put against me on that already, for instance, with respect to open blinds to see through. With respect to material found in the dam, which is dealt with in our opponent’s submissions at page 5, I have made the point the hammer did not come from the house. The hammer at the home was different. There were things in the dam that the father could not identify. We have dealt with that in our written submissions.

With respect to the next item in our opponent’s submissions, car tools, we make the point that Mr Cala, the forensic pathologist, said that a whole range of implements could have been used and we make the point that the car tools were never found, including in the dam. With respect to phone calls – this is at page 7 of our opponent’s submissions - the fact that Alyssa Brindley made a number of phone calls and the phone was engaged, it may be that any assailant could have taken the phone off the hook. The photograph would show that the ‑ ‑ ‑

GAUDRON J: But wait a jiff. At what time are you postulating that assailant came?

MR GAME: At 10 o’clock is when she rang – 10.03.

GAUDRON J: It does not take your client more than half an hour to get to her place, so that does not really advance your case at all.

MR GAME: It does not really advance my case, but it does not – we are saying, I do not think it advances our case, but I am saying that it is not a strong point against us.

GAUDRON J: Yes.

MR GAME: He also said that, yes, he was waiting around outside his girlfriend’s place before he went in. The point we make about the ‑ ‑ ‑

GAUDRON J: Why? Does he explain why?

MR GAME: Because all the lights were out and he did not know whether to go in or not. His girlfriend had gone to bed and she had written a note on the window which he did not find for a while, your Honour. With respect to the content of the prank telephone calls, the point we make is, if he was going to put them on the wrong scent by saying somebody had rung and said, “Three people in your family would be deceased”, which is what he said to Alyssa Brindley, why would he not say that to the police?

McHUGH J: Yes, but the point about it is that he has a bit of a dilemma, has he not? On the one hand, he gives the telephone calls as his explanation for being late, and then he says they are prank calls, and if the first explanation was true, you would wonder why he left at all and, in any event, why he never telephoned his girlfriend to say he would be late. And, you have to add to that, that the deceased people had various phone calls, or spoke to people, and they never mentioned any prank calls or threats.

MR GAME: I think the last of those calls was at 8.40 which was ‑ ‑ ‑

McHUGH J: I know, that is 20 to 9.

MR GAME: It was to Ray Halliwell, who was the brother of the deceased mother. The appellant did say that the calls came after that. But if it is used as consciousness of guilt evidence, then you have to exclude the possibility of some other explanation for why he would say that, and it certainly was not advanced in that particular way. The next submissions relate to his conduct on the morning and I have dealt with that. I say that that points to innocence. With respect to the “Mum and Sarah” ‑ ‑ ‑

KIRBY J: Except that he said that, yes, Sarah ‑ ‑ ‑

MR GAME: Yes, I am sorry, except to “Mum and Sarah”, Mr Hoogvliet said that he was practically incomprehensible at the time. He was the next door neighbour. There is evidence that the appellant knocked on his sister’s door, that is at page 1099. Lastly, with respect to this, the point is made against us with respect to the dog barking: there were witnesses who said that the dog barked and – sorry, a dog barked, and I will just give your Honours references to that, 531 to 532.

Now, those submissions that I have put now with respect to “unsafe”, also go to meeting the Crown’s submissions with respect to the application of the proviso should our other ground succeed. We would say, for the reasons that I have put to the Court, that the proviso should not be applied if we succeed with respect to our grounds concerning motive and disturbed mind, but if we succeed only in respect of those grounds. Those are my submissions, if the Court pleases.

GAUDRON J: Yes, thank you, Mr Game.

MR GAME: Just before I resume my seat, would it be acceptable if I file – today is Thursday – if we file the amended notice of appeal maybe some time tomorrow?

GAUDRON J: Yes, you will have that leave.

MR GAME: Thank you, your Honour.

GAUDRON J: Yes, Mr Ellis.

MR ELLIS: Your Honours, perhaps dealing with the hair issue, the Crown’s submission is that there was no definitive evidence which would have allowed the jury to determine that the hair which was located between the fingers of the deceased, Adrian De Gruchy, had not come from the head of the appellant.

GAUDRON J: That is the wrong way of putting it though, is it not?

MR ELLIS: What I am trying to say, your Honour, is that I understand from the point of proving it, but in terms of what the evidence says, the DNA evidence does not say anything positive about the hair. So on that basis, the Crown says obviously there is an issue perhaps about length but, then again, length of one’s hair can vary. There is no suggestion, as I understand from the evidence, that there was actually a root attached to the hair. It was a hair, so it may have ‑ ‑ ‑

GAUDRON J: It was a single hair, was it?

MR ELLIS: There may have been more than one. It is a bit confusing on that. At some stage “singular” is mentioned but at other points it refers to “strands”. Certainly I could not say that it was singular.

GAUDRON J: Was it tendered?

MR ELLIS: The hair was not, no. The certificate from Dr Atchison from the Victorian Forensic Centre was tendered and I think it is exhibit Y.

GAUDRON J: Who gave evidence of the finding of the hair or hairs?

MR ELLIS: There was evidence from Dr Cala.

GAUDRON J: What did he say?

MR ELLIS: He gave evidence that the hair was found between the ‑ ‑ ‑

GAUDRON J: “The hair”?

MR ELLIS: He gave evidence that hairs were found, strands of hair were found ‑ ‑ ‑

GAUDRON J: “Strands of hair”? I mean, the inferences you might draw from a strand of hair are different from a hair or one or two hairs.

MR ELLIS: I understand that, your Honour.

GAUDRON J: Can you at some convenient time give me a reference to all of that evidence, please?

MR ELLIS: Yes.

HAYNE J: The certificate is at 1093 and 1094.

MR ELLIS: Thank you, your Honour. The position was that it was between the fingers of the right hand of the deceased, Adrian. There was also evidence from Dr Goetz, who is a senior forensic biologist at the analytical laboratories in Sydney. He gave evidence that he too had conducted a number of tests but that he was unable to determine the origin of the DNA which was extracted. His evidence can be found at appeal book 276 line 10 and on. Apart from hair, the substance tested positive to blood, so it could have been blood. If one looks at the photos, there is a lot of blood associated with the deceased, Adrian De Gruchy, in terms that virtually he is lying in a pool of blood.

Effectively, in this evidence the Crown is unable to establish any positive. The most that the Crown could ever say about this evidence is that it was possible that the hairs located came from the accused. There are a number of other possibilities the Crown could raise to explain that hair.

KIRBY J: Let me get this clear. The certificate says it could not have come from the accused?

MR ELLIS: No, the certificate does not say that.

KIRBY J: I thought it did.

MR ELLIS: No, your Honour. What the certificate says is that it was impossible to determine what the source of the DNA was which had been located. That is, whether it was ‑ ‑ ‑

KIRBY J: I think it goes on to - I am looking at 1094.

MR ELLIS: It says that the DNA did not ‑ ‑ ‑

KIRBY J:

No DNA originating from Matthew DEGRUCHY was detected on item 3 (hairs/blood).

MR ELLIS: Yes. So the DNA was consistent with the deceased and inconsistent with the accused.

KIRBY J: That is right.

MR ELLIS: The difficulty was that the experts were unable to say where it was that that DNA had come from, whether it had come from the substance on the hairs or from the hairs themselves.

KIRBY J: But this is a bit unrealistic. It is a very long hair and the accused does not have long hair.

MR ELLIS: The accused does, in fact, have long hair. It was the deceased, Adrian, who had the hair which was said to be – by Dr Cala – four centimetres in length.

KIRBY J: Is the accused’s long hair long enough for these samples?

MR ELLIS: Yes, certainly, longer than the samples.

CALLINAN J: The way it is put in paragraph 24 of the appellant’s submissions is correct, is that right?

MR ELLIS: Yes, your Honour. It was suggested by my learned friend that the location of the hairs in the hand or between the fingers of the deceased, together with some other evidence within the garage, would indicate that there had been some fight perhaps between them. The Crown says that at the highest it is clear from the evidence that there may have been some struggle. It is very difficult to determine to what extent. It is very difficult to determine, for instance, whether it was an all one‑way struggle. That no injuries were noted by either Mrs Brindley or Alyssa Brindley, my friend says was significant, but the reality is that blood of the accused was located within that house. It was located on the tiles in the hallway and it was located above the bedhead, immediately above where the deceased, Mrs Jennifer De Gruchy, was found.

The Crown would say that the other evidence in terms of the general cleanliness of the house, the accused himself said that cleanliness was one of the ways in which he had been brought up, he had been brought up to be clean, that it is highly unlikely that the blood on the floor in the hall and the blood on the wall above the deceased, Jennifer, had been there for any prolonged period of time. So that if, in fact, there was fresh blood of the appellant within the house, he points to the fact that there had been some bleeding on that occasion, that evening, despite the fact that nothing was noted by Mrs Brindley and Alyssa Brindley.

The possibility was raised, obviously, of a nosebleed. There is also the possibility that they simply did not notice anything that night, which does not mean to say that there was not something there which had been cleaned up. It may, for instance, theoretically, could have been a scalp wound, which might not have been readily discernible. So there are a number of potential explanations, but the reality is that his blood was in fact found in the house and found on the tuft of carpet which was located in the Toyota Corolla.

GAUDRON J: It was only DNA. Was that determined that that was blood?

MR ELLIS: It was his DNA, yes. When one looks at it, it looks to be a red substance, but yes, technically, it is found to be his DNA on that tuft.

KIRBY J: Is there a photograph of the spot on the wall?

MR ELLIS: Yes, there is, your Honour. Just pardon me a moment. The photographs are in volume 4.

KIRBY J: I am just wanting to see whether it is the sort of spot that a jury would be entitled to say it was unlikely, in a clean household, would be left unattended.

MR ELLIS: It is not huge, your Honour, by any means, but it can be seen. I will just find the photographs. It is photographs 49 and 50.

KIRBY J: What page?

MR ELLIS: Page 919 of the appeal book.

HAYNE J: What is the scale that is against that? Is it centimetres?

MR ELLIS: It appears to be centimetres, your Honour. It appears to be 1½ centimetres.

GAUDRON J: 50 is the tile in the hallway, is it? No, it is the wall.

MR ELLIS: No, 50 is the wall, which is the same – it is just a close-up of 49.

GAUDRON J: I see, yes.

MR ELLIS: The position of the deceased Jennifer – without going to some of the more graphic photos – if your Honours go back one page just to photograph 48, where all the blood is there on the pillow is where her head was located, and this spot is immediately above that, as you can see from 49, relative to the corner of the mattress. Photograph 183 at page 987 shows the substance located on the tuft of carpet. Photograph 30, which is not of great assistance, actually shows the hall, and there are a number of markings and numbers placed on the hall. As I understand the evidence, the blood associated with the appellant is associated with No 3. As I say, the photograph is so far away, it does not assist.

KIRBY J: Is the DNA evidence good enough to say it is the appellant’s, or is consistent with the appellant’s?

MR ELLIS: It was consistent with the appellant’s. I think ‑ I am trying to remember – it was certainly inconsistent with any other family members.

KIRBY J: Inconsistent with the deceased?

MR ELLIS: Inconsistent with the deceased, yes. And also the father. In my written submissions, a correction needs to be made, because in relation to the tuft, in paragraph 12 of my written submissions, having previously put the correct position, I have incorrectly indicated that the DNA on the tuft could have come from the appellant or his father. In fact, the evidence was that it could only have come from the appellant, not from his father, or any other members – or of the deceased.

KIRBY J: So we delete the words “or his father”?

MR ELLIS: Yes, and then “either”, so that it is, “with DNA from the appellant”.

GAUDRON J: Was any other carpet found in the dam?

MR ELLIS: Yes, your Honour. There were pieces of carpet located in the dam and those items are depicted ‑ ‑ ‑

GAUDRON J: There was no blood on those, or no DNA?

KIRBY J: There was blood but it could not be ‑ ‑ ‑

MR ELLIS: Yes, there were traces of DNA, I think, as distinct from blood. I do not know that they could say it was blood. There were traces of DNA but unable to be identified. At appeal book 1002 there is a series of photographs which depict the items which were located in the dam and if the Court moves to page 1006, in photograph 222, there is a section of carpet which is located.

GAUDRON J: I take it these items had been water damaged, had they?

MR ELLIS: Yes. Effectively, as I understand it, items were initially located by two young boys in late March, or the middle of March – it is a bit difficult to tell exactly when – but it was not until some time in May that the police were told and they attended the dam and the dam was drained and things were located. The piece which was removed ‑ ‑ ‑

KIRBY J: What is the significance of the vanity unit imprint? It was in blood, was it?

MR ELLIS: The palm print on the nob of the vanity unit appeared to be a print in a substance which tested positive to blood. The evidence was ‑ ‑ ‑

KIRBY J: It was not just a fingerprint in an ordinary sense?

MR ELLIS: No, it was a palm print, as I understand it. I had a feeling left hand, but I may not be correct on that, but it certainly is a palm print. Just on the carpet, your Honour Justice Gaudron, at 915, photograph 42, there is a photo of the section which was removed near the bed in Mrs De Gruchy’s bedroom and certainly the Crown submission is that the pieces which were located are consistent with having been cut from such a piece. The evidence from the fibre experts was that it was consistent with having come from that carpet, and he did a series of different tests.

KIRBY J: There would be no rational reason for anybody in such a situation to cut a section of the carpet and remove it unless there was some evidence on it that could associate that person with the murders.

MR ELLIS: Yes. It would either have to be something which would have DNA in it such as either blood or vomit, perhaps dry‑retching even, something which would have had some DNA, and when one looks at the size that has been removed – there was no scale there but just by looking at the bedside table and the slippers beside the bed, it is a reasonably large size which has been removed, and whilst there is a lot of other places where blood is located from the victims, obviously there has been no attempt to remove that. So clearly the attempt was made to remove ‑ ‑ ‑

KIRBY J: What was thought to be incriminating

MR ELLIS: ‑ ‑ ‑ what was thought to be potentially incriminating evidence and perhaps the chain of significance is that you have this missing, some evidence of blood in this same room very close to where this occurs, on the wall, so that if a person was standing in that position, which they would need to have been to have inflicted the injuries that they did, and if they bled, they would have bled to the carpet in that area. If there was some movement, for instance, of a blood nose, one can imagine a spatter flying off, even at a right angle, onto a wall – that would be, perhaps, consistent more with a nose bleed type situation during the beating which was occasioned.

Then the significance of the tuft becomes greater because, given the – there are a number of photos over the page at photograph 43, 916, one can see that it is not a clean cut. The carpet has been hacked out, literally, and a tuft is located in the car, the Crown evidence being that it is that car which was used by the accused to go that night and used by him, on the Crown case, to transport these items to the dam, that that tuft is something which may well have been a loose tuft which was picked up on some other article which was placed in the car, like a bag, and it is very small and it is easily missed.

We then have, within the dam, pieces of carpet which are similar to the carpet in the bedroom and a consistent size and even shape, to a certain degree, although there is a number of pieces, and it has a note written by the accused within that same material that is located. So there is a chain of material from the carpet and the blood on the wall to the DNA of the accused on the tuft within the car, to then carpet pieces dumped in company with a letter written by, or a note, a piece of paper which has writing on it which was under the hand of the appellant.

Your Honours, perhaps dealing with the unreasonable and not supported count ‑ ‑ ‑

HAYNE J: Just before you go to that. Is the carpet tuft depicted at page 984, photos 178 and 9?

MR ELLIS: Yes, your Honour, just in that little corner behind the driver’s seat on the floor.

HAYNE J: Yes.

MR ELLIS: The Crown would say coincidentally, this being a car which has missing from it the necessary tools for the changing of a tyre, those tools being consistent in that it is possible that they were used to inflict the injuries which were inflicted. Dr Cala does not say it had to be those tools but he used similar tools, made a comparison by laying the tools on the bodies and the various injuries and is able to say that those injuries are consistent with having been caused by items of that type.

KIRBY J: The accused’s only explanation for the spot of his blood in the bedroom was an ancient nosebleed.

MR ELLIS: No, he did not say it was a nosebleed. He had nothing in terms of anything recent, but he said that he had bled in the house, as a general proposition. When asked about the bedroom, he said that it may have been when they were moving in and he was moving furniture. I think the evidence was they had been in the house some two to three years – I think two years.

He gave no other explanation, other than that, about that particular incident. In terms of the hall, though, he had said, “Well, I bled within the house”. He was not able to say exactly why but that he had had various nicks and cuts and the Crown would say the strength of the Crown case is the actual location of that and the fact that every time Mrs De Gruchy got into her bed that the spot was right there, unlikely to have been left like that for any period of time.

The evidence about the fingerprints. There is the palm print in the substance which tested positive for blood. It was indicated that there were a number of other things which could test positive but none of them were the sort of thing which you would expect to find in a bathroom or on such a nob but the fingerprint which was found on the petrol can, or the jerry can, it is suggested by my learned friend that the fingerprint expert indicated that you cannot age the prints, it could have been there for some time.

The evidence from both the appellant and his father was that each of them had, from time to time, cause to use the jerry can to fill the car up with petrol, but the reality is that there was no print of Wayne De Gruchy located on that item. There were no other prints. The only print which was located was that of the appellant and it is clear, that both from the smell of petrol and the fact that there was petrol on the clothing and the body of Adrian that the petrol can been utilised, petrol had been poured from that can, so it is clear that the killer touched that petrol can.

GAUDRON J: There were no other fingerprints?

MR ELLIS: No, there is only the two sets of fingerprints, yes.

KIRBY J: Both of the appellant?

MR ELLIS: Both of the appellant. There were no ‑ ‑ ‑

KIRBY J: No fingerprints of the father and none of any strangers or unaccounted persons.

MR ELLIS: On the jerry can?

KIRBY J: Yes.

MR ELLIS: No.

KIRBY J: No fingerprints in the house or ‑ ‑ ‑

MR ELLIS: Well, your Honours, obviously they did not fingerprint the entire house. One assumes that there would have been fingerprints of the deceased and also of Wayne De Gruchy, but there were no fingerprints in any situation associated with any substance which may have been suspected as being blood, for instance, and/or any other item such as the jerry can which could, in some way, have been associated with the killings.

The evidence in relation to the prank calls: the Crown says that, in fact, what can happen if the jury rejects that, which they were entitled to, given that Mrs De Gruchy did not mention to anybody that she spoke to that night, being her mother, and her brother, and her husband, that she received the death threats. She did not ring her husband, for instance, and say, “Look, you had better come home”, or just to ring him to tell him of her concerns that ‑ ‑ ‑

KIRBY J: It is not an everyday event in a suburban house.

MR ELLIS: No, especially when it is specified as being three. I mean, it is too convenient that the accused leaves, making it three.

KIRBY J: Is there any way to check incoming calls? Does Telstra have a way of monitoring whether there were incoming calls, or not?

MR ELLIS: I am not sure in that – they do now, but in 1996 I do not believe there was any evidence – there was evidence of mobile phone records. For instance, the mobile phone record of Mr Wayne De Gruchy was tendered and it showed that no calls were made by him in that time frame to the house, but there was no evidence, one way or the other, of the land line records.

Yes, my learned friend confirms that at that stage, they did not have all the ability to obtain record of incoming calls. Outgoing calls were a different matter, but not the incoming.

KIRBY J: Well, outgoing calls were billed.

MR ELLIS: Outgoing calls were billed ‑ ‑ ‑

KIRBY J: Incoming calls were not.

MR ELLIS: You might not necessarily have got a time for it, if it was a local call; you would have just had a number – another local call rung up. But the reality is that he then did not stay, despite the fact that he had been asked. He says his mother asked him to stay, but he did not. He did not ring Alyssa to say that he was going to be late. Clearly, he was expected there before 10 o’clock, because she rang at 10.03 and rang six times to his house, wanting to speak to him, to find out where he was. So clearly, she expected him to be there before 10 o’clock. Her evidence was that there were a number of issues in their relationship which were causing problems and needed to be discussed, and that was the purpose of his coming around, it being a weeknight and that not being a usual practice. He would normally come around on weekends, rather than, necessarily, weeknights. She rang at 10.03; he was not there. She ‑ ‑ ‑

GAUDRON J: The phone was engaged.

MR ELLIS: I am sorry, the phone was engaged on six occasions. She then went to bed – well, at some stage she went to bed, because she was asleep, she says, at some time between 11 and 11.30 when the accused rapped on her window, she having left a note on one of the doors - back door, I think.

The accused mentioned it to her but did not subsequently mention it the next morning when he discovered his mother deceased. He did not mention it to the police when he made a statement on the 13th or when he participated, I think, on 17 March in an electronic interview. He mentioned that prank calls had been received but he made no mention of a death threat.

McHUGH J: He went further than that, did he not? In a signed statement, which appears at page 1101, he said that there were no conversations on any of the phone calls. They just hung up.

MR ELLIS: Yes, that is so, your Honour. In fact, each time the caller hung up. The reality is that he arrived at Alyssa’s house much later, without having rung her to say that he would be late. There was no reason why he could not have done that, in fact no reason why he would not, if his mother had asked him, stayed. Whilst a young man, he was still the only adult. As it turns out, he was 18.

GAUDRON J: He was older than Adrian, was he?

MR ELLIS: Adrian was, I think, 15.

KIRBY J: He was 15, I think.

CALLINAN J: And 13, I think, for the girl.

MR ELLIS: And 13 for Sarah.

CALLINAN J: How old was the mother, incidentally?

MR ELLIS: The mother was in her mid-30s, I think, mid to late 30s. I had a recollection of 38, but I would need to check that, your Honour. So that it is inconceivable that he would leave at such a time as knowing that he is not going to get to his girlfriend’s until late – 11.00 11.30 – leaving his mother and siblings in light of these death threats when the matters that they had to discuss could have been discussed at any time and getting there exceedingly late was perhaps not conducive to a discussion about some of the problems within their relationship, so the Crown would say it is congruous that he would in fact have left.

Certainly, circumstantially, where these items were located in the dam was, in effect, on the way to this home. It was a couple of minutes away. The evidence was that he knew about this particular place. He had ridden bicycles there.

McHUGH J: There is evidence he had been to the brick pit. Is that the same thing?

MR ELLIS: It is the same place, yes, your Honour.

McHUGH J: The same place.

MR ELLIS: It is not actually a dam, as I understand it. It is a brick quarry which fills up with water and in fact it was drained.

McHUGH J: Right.

MR ELLIS: The factors that the Crown relies on – I have extended them or they are fleshed out a little more in the written submissions but clearly this was a fake robbery. No one other than a family member, the Crown would say, would want to fake a robbery. Indeed, an external person would not want to do that because it takes away, immediately, part of the remaining family as being a suspect, so, it is not in the interests of a stranger to fake a robbery, and if it was a genuine robbery why were the goods immediately dumped, why did he take T‑shirts which appeared to be the property of either the appellant and/or his brother. It is interesting that why would he need to – there was DNA again, I think, found on the two shirts which were depicted in some of those photos but it could be determined as to whether it was in fact blood or identifiable DNA, but, nevertheless, they are stained, as one can see.

The only reason for dumping shirts of that type would be if, again, they had potential incriminating material. The Crown would say that, certainly, an outside killer would be unlikely to have bled on T-shirts belonging to either Adrian and the appellant. Interestingly enough, the appellant himself says that that evening he wore two T-shirts to his girlfriend Alyssa’s place when he went there. So we have two T-shirts being mentioned on the note, two T-shirts being found, and then a coincidence to be considered that ‑ ‑ ‑

GAUDRON J: Would that be a convenient time for you?

MR ELLIS: Thank you, yes, your Honour.

GAUDRON J: Yes. The Court will adjourn now until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.17 PM:

GAUDRON J: Yes, thank you, Mr Ellis.

MR ELLIS: Thank you, your Honours. Just in relation to the unreasonable ground, there were just a few more points I wanted to take your Honours to, otherwise I rely on the written submissions which are more extensive in dealing with the particular circumstances. One of the ones was the issue of a dog barking. My learned friend made reference to the appeal book page of 531 wherein a neighbour ‑ it was the questioning of a police officer that a neighbour had reported having heard a dog bark some time after 4.00 am. The most likely time of death for all three deceased, according to Dr Cala, was between 8.00 am and 8.00 pm and 1.00 am, with he being prepared to concede that it was possible it could have been as late as 3.00 am.

The Maltese Terrier, which was kept within the house as the normal practice: there is no evidence of any misbehaviour of that dog during what might be the most likely period that these killings took place. The issue in terms of what was said that morning, “Mum and Sarah”: the evidence of Mr Bailey, which is dealt with at paragraphs 37 and 38 of the Crown submissions ‑ and clearly that the three words that he did hear, despite having difficulty with others, was “Mum and Sarah”. The Crown would say that the point which was made about that reference was a legitimate point available to the Crown.

The cumulative effect of all of the individual pieces of circumstantial evidence was significant and the Crown’s submission is that it could have led to only one conclusion and that is that there was no reasonable hypothesis consistent with innocence which was available, no reasonable hypothesis of some other person as the killer. The case was not perfect. Circumstantial cases are very rarely perfect, as I think was said in the decision of this Court in Veleveski in the judgment of your Honours Justice Gummow and Justice Callinan:

it would be a mistake to think that with respect to every crime there will be no loose ends as to detail at the end of the trial.

So, certainly, the Crown submission is there may well be loose ends but when you look at the strength, in combination, it is a very strong Crown case. The Crown could not prove motive in this case. There was no evidence of any motive for anybody to do what was done and, certainly, no motive that the Crown was able to establish for this appellant.

There were a couple of things which were raised during my learned friend’s submissions. One was, what would be the effect of the rejection by the jury of the evidence of the accused? The first thing that can be said about that is that I think my learned friend, Mr Game, conceded that the jury may well have, or could have, at the very least, rejected his evidence in relation to the note and perhaps the Quiksilver T‑shirt – that was another example – and, indeed, the death threats.

The Crown submission is that if the jury did reject the appellant on those aspects, or any of them, then that would severely weaken the operation of the character direction which had been given, at least so far as it related – or that leg of it which related to the issue of credibility.

So that where there may here be criticism that the reference to “disturbed mind” impacted upon character, the reality, the Crown says, is that his evidence is far more likely to have had a significant adverse impact on that direction. If his evidence had been rejected in relation to the note, then that left the Crown inference available to the jury with no other reasonable inference, which left the jury in a position to be able to conclude that the note was, in fact, as the Crown suggested it was, a plan or some type of aide-memoire, either before or after the commission of this offence. If the jury rejected the evidence in relation to the death threats, then there was no evidence before the jury of death threats.

They would then have been entitled perhaps to reject even the whole concept of prank calls, but at the very least, they had no evidence before them of death threats and, therefore, there was no reason for the appellant to be late in arriving at his girlfriend’s house. If no death threats occurred, the only explanation for his late arrival at his girlfriend’s house was that suggested by the Crown, that is that he was the killer and he had been busy with the murders and the cleaning up thereafter.

It is fair to say that any negative in a Crown case, in a sense, is a positive to the accused. In a case where there are no admissions, for instance, that can be positively put to the jury and the jury can have regard to that. In this case, there is no admission made by this accused.

It is not necessary for the court or the trial judge to give a direction to the jury that that is a positive. It is a factor which is taken into account. If the evidence in this case of the accused was rejected, that would certainly significantly have weakened the importance of any issue about lack of motive.

The Crown submission briefly ‑ because we have dealt with it in the written submissions ‑ is that the Crown Prosecutor did not connect his comment with the accused. He made a comment which I think, as your Honour Justice McHugh said, was a statement of fact really of what in fact had occurred.

GAUDRON J: We cannot be sure one way or the other what happened there, can we, in the absence of ‑ ‑ ‑

MR ELLIS: Only in this sense, your Honour, that at page – I think it is ‑ ‑ ‑

GAUDRON J: The trial judge, in his direction, seemed to think he linked it with the question of motive.

MR ELLIS: Yes, he certainly made that as a possibility, and he clearly said if that was so then ‑ he gave a direction as a consequence of that. If one looks at page 801 of the appeal book and 802, which my learned friend took your Honours to, the Crown Prosecutor there made a statement which was not challenged by Mr Ramage. That is the one at 801:

I did make reference to the person who is responsible for these acts, it would be the product of a disturbed mind.

He goes on:

Now again in my submission, because of the nature of the acts themselves, that again is a matter which I would be entitled to comment on. As a general proposition, anybody responsible for these acts must have had a disturbed mind.

Mr Ramage did not, as I read it, thereafter challenge that interpretation, or that reconstruction by the Crown Prosecutor, of the thrust of his comment.

The connection to the accused came about when defence counsel, in fact, in his closing address raised the prospect that if the Crown had had any such evidence of disturbed mind in relation to the accused it could have led that evidence.

The Crown submission is that the character direction was a strong direction, for instance, it was stronger than the direction which was given in Melbourne’s Case which this Court looked at, I think, a couple of years ago where, in that case, the first leg or the disposition‑type direction had been given but not the credibility. In this case the full direction was given; no complaint was made; no complaint was made at the time by trial counsel as regards the motive direction. It was a very live issue during the course of the trial and the Crown would suggest ‑ ‑ ‑

KIRBY J: You say motive direction. What was the motive direction?

MR ELLIS: The motive direction which is the direction found at page 822 from memory. That page contains the motive direction. I agree with my friend, I do not know that there is any other specific reference other than during the “disturbed mind” directions. As a consequence of that direction experienced senior counsel, in the context of that trial, did not raise with his Honour or request that his Honour give any further directions in relation to motive. Clearly, the closing addresses of both counsel would have touched on it and certainly from the defence point of view and if learned senior counsel at the time did not see that there was any difficulty in such a direction, the Crown would say that it is not appropriate at this stage to now go back and start examining sentence by sentence what, in fact, was said.

KIRBY J: The suggestion is, as I understand it, good or bad, that the two strong things going for the accused were the lack of motive and his good character on the one hand, and his presentation to his girlfriend and the girlfriend’s mother without apparent indications of injury, distress, excitement or anything. That first one was significant and it is a puzzle. It is significant. In that context the main thrust of his Honour’s direction is simply to the effect that the Crown does not have to prove character, that “you the jury have to weigh this up”. It looks to me as though the direction may have come from a judge’s handbook dealing with ‑ ‑ ‑

MR ELLIS: It is a standard direction in relation to motive, which I think is why no one has taken issue with it until my learned friend was on his feet today.

KIRBY J: It does not seem to rise to the level of Plomp. It does not seem to deal with ‑ ‑ ‑

MR ELLIS: But, your Honour, Plomp was a completely different case really. In Plomp there is no doubt that without the evidence of motive, the Crown could not prove that case. It was a circumstantial case that had as an essential link in the chain the motive evidence. Without the motive for that man to have killed his wife, it was an accident that she drowned simply by misadventure. So clearly in a case like Plomp, the importance of the evidence would have made it necessary in such a case for directions to have been given as to the importance of that motive, just as directions are required in other cases where you have one piece of evidence which provides the only sustainable link towards conviction. So that motive is no different than many other pieces of evidence. Sometimes it can be very significant; other times it is neither here nor there because there are in fact crimes which are committed without reason.

KIRBY J: That is true.

MR ELLIS: There is a lot of things in between on that continuum clearly. It is also fair to say that from the jury’s point of view it is clear that if the Crown is unable to prove motive, then that is a plus for the accused, just as it is clear that if the Crown is unable to draw their attention to a confession or just as it may be true if the Crown is unable to lead evidence of an eyewitness in some cases. So all of those are comments which are generally made, certainly by counsel, and they are issues which are live through the trial and there can be no doubt that given the length of this trial, the significance in this trial, which must have been obvious to all, including the jury, from a very early point in time, that this was a crime apparently without motive, whoever the killer was. What the motive was to kill these three people in the manner in which they were killed, the Crown was unable to say, either generally or specifically, about this individual accused.

It is generally a requirement of directions that directions are given where the jury needs guidance, either as to a specific area of law or because the courts have experienced difficulties in an area that the jury may not be aware of, necessarily. But, here, in this type of thing, it is really just an evidentiary matter which varies from case to case, people call for different directions in different cases. It would be impossible to determine what would be an appropriate direction in every single case because it could not possibly meet all the potential permutations.

What happens here is it is a straight direction, a technically correct direction, that the Crown only has to prove the essential elements of the offence. His Honour said that at some earlier point, and it is always said, and motive is not an essential element of the offence, so it is not a matter which the Crown has to prove. But, clearly, if the Crown can prove it in some cases, such as Plomp, it is very significant. The converse of that, in Plomp, is that had the Crown not been able to prove it, the Crown had no case.

So, often motive can be put forward in a crime of passion, for instance, and it has questionable weight, it is a matter for the jury to determine what weight they give any motive that they, in fact, find exists because it is a fact‑finding exercise for the jury to determine, but it is still not an essential element of the case and the Crown is still entitled to say to the jury, “Well, we have not been able to prove motive, we accept that. But we say, notwithstanding that, when you look at the evidence and you accumulate the effect of all of these circumstances, you will arrive at a position where you are satisfied to the required standard.”.

Now, had there been, in this case, some special need, and it is more likely to have been in a case where it is perhaps not as obvious as this and not as clear cut as this, then the Crown submission is that trial counsel would have asked for that. Indeed, the trial judge himself, having a feel for what is necessary in directions, may well have added to a standard direction.

KIRBY J: Mr Game said two things, and they are interrelated, though different. One is that, in this case, there was the added factor which his Honour should have drawn attention to, that there was positive, affirmative evidence that there was no motive. Secondly, he says that when you read that with the attempt to redirect, his Honour gave an incorrect direction in saying there was no evidence one way or the other, because the character evidence and the evidence of the father and the uncle, I think, as to the sweet temperament of the appellant were, as it is said, positive evidence that he positively did not have a motivation. He had been cleaning out the fish pool; he had gone to a picnic, within days. He had a gentle disposition.

MR ELLIS: I understand that. It is a fairly long question, I will try to deal with perhaps the first part.

KIRBY J: It is the affirmative fact.

MR ELLIS: Yes. What there is, in this case, is evidence from a number of people – the brother, the father and the girlfriend – about good character. That is a different issue, the Crown would say. There is evidence from the accused himself and, I think, from others that there had not been a particular problem – and there were a number of things which were raised. There was some evidence that they had happily gardened. None of that necessarily proves positively that – and who has the onus? If the Crown does not have to prove it, the accused certainly does not have to prove it. How do you ever deal with that? But none of that positively proves that there was no motive. It still only establishes that there is no known motive.

It is very difficult for a jury to ever be able to conclude that someone in fact had no motive, because it is in the realm of the unknown. So the Crown’s submission is that it is a fallacy to suggest here that there was a positive proving of no motive. What there was was a failure on the part of the Crown to be able to prove any known motive, and the accused had an ability to lead some evidence about a number of peripheral things that could not have been a motive, so they have been ruled out as motives. But that, of itself, does not create a positive impact. Moving then to the second leg of my learned friend’s submission, which I have just had a complete blank about ‑ ‑ ‑

KIRBY J: It is the fact that the judge said: there is no evidence one way or the other.

MR ELLIS: Yes. Your Honour, during the course of those directions ‑ and I will take your Honours to it – obviously, from pages 223 through to 226, I think it is, of the appeal book there are a number of directions. The Crown says, the thrust of those directions, though, is in fact that – and perhaps can be found in our written – if I said 222, it was 823 through to 826 – submissions at paragraph 66. The Crown submits that the thrust of those directions if they are read in the context of why they were given in the first place was to say that the remark by the Crown Prosecutor was unfortunate and made “in the flourish of advocacy”; that unlike other cases of which the jury might be aware through their general experience, the present case was not one in which the state of mind of the accused was an issue; accordingly, the jury should excise from their deliberations any considerations of the Crown Prosecutor’s remarks; that the only issue for determination in this context was whether the act or acts of the accused caused the deaths of the victims.

If one goes through them sentence by sentence – and I do not propose to do that, it would take too long, but I would ask your Honours to read those directions and to read the written submissions, in the Crown’s submissions, from paragraph 62 through to paragraph 70, although there are, in fact, two paragraph 69s, which I apologise for. It is clear from that that his Honour was intending to ensure that there was no perverse verdict such as not guilty by reason of mental illness, or manslaughter on the basis of diminished responsibility. He was trying to ensure that if there had, in fact, been any damage occasioned by either the remark of the Crown or of the accused counsel, that that should be put aside. He was, in essence, trying to bury this entire issue. It ought not to be taken as in any way reflecting upon what he had very shortly before said to the jury about character.

For instance, he, in fact, reminded the jury, in giving the character direction, that the Crown had not challenged the good character of the accused. So it was clear – and all of these are within a few moments. The character direction was at page 820 to 821 followed then by the motive at 822, and then commencing at 823 the dealing with the disturbed mind. So it was fresh in their mind that there was unchallenged character evidence, that the Crown had not sought to do anything in relation to that, to call any evidence to the contrary. Then his Honour, the Crown says, effectively dealt with by telling them to just disregard the Crown’s comment and any comment on anybody thereafter because it was not an issue, that mental illness was not an issue.

Certainly the Crown’s submission is, as was put perhaps far more ably by his Honour Justice Callinan, that “disturbed mind” does not necessarily, in the way in which it was used here, have a legal context of meaning, either diminished or of mentally ill. It simply was a statement that some person at the time that they committed this offence, maybe not before and maybe not after, but at the time they were disturbed in some way, because it is impossible to think that such savagery could have been used unless somebody was disturbed.

So that in a sense it was a nothing comment. In fact, on one argument which is available, defence counsel would have been entitled, and may well have done so – we do not know, because interestingly he received or sought and received a direction from the judge as to what direction he would give in relation to character. That was sought before Mr Ramage’s closing address. Once his Honour made the ruling, Mr Ramage clearly knew the direction which was to be given in relation to character. A strong submission available to him would have been, “Well, as the Crown says, these acts are the acts of a man with a disturbed mind, yet, in fact, that is proof that it would not be likely to have been my client because he is a person of good character and the Crown does not challenge that.”

HAYNE J: In the end, then, does your argument come down to this: this was a single issue trial. There is only one issue in this trial: was it the accused who committed the acts because whoever committed the acts was guilty of murder? It was a single issue. That was a factual issue, a factual issue for the jury. The directions that were called for were a direction about what to do about evidence of character, a direction that the Crown did not have to establish motive and other then than the general directions about ‑ ‑ ‑

MR ELLIS: Circumstantial evidence.

HAYNE J: ‑ ‑ ‑ burdens, standard of proof, inferences and the usual matters, the issues were entirely for the jury.

MR ELLIS: Yes, that is the Crown’s submission. All of these issues were jury issues and that is why I would think his Honour was at such pains to have them put out of their mind this whole aspect of “disturbed” because it went into an area that was not relevant.

HAYNE J: The argument against you on that is that the “disturbed mind” direction told the jury either that they could not use, or at least could not use to the extent that was properly open to them, either the evidence of the accused’s good character or, be it the absence of proved motive or the proved absence of motive, whatever may have been the state of the evidence about motive. Now, is that not the argument you have to meet?

MR ELLIS: Yes, I accept that that is the way it has been put, your Honour. The Crown’s argument in relation to that is that his Honour has compartmentalised the directions that he has given on this disturbed mind in an attempt to, as it were, have the jury excise it completely, the entire issue from their minds, and that one cannot take some of the sentences because for every sentence that might be suggestive of saying perhaps there could be evidence out there that he has a disturbed mind or some evidence of mental illness, there is at least one other, if not two other occasions, on which his Honour has said to them that it is entirely irrelevant that there is not any evidence. He has previously given them general directions about only acting on the evidence and not on speculation. If you go through it, he says at page 824 the only state of mind that is relevant is in relation to the intention. He says at line 20:

I confirm to you there is no evidence here that the accused has a disturbed mind or anything that might be described.

A bit further down, line 28:

and it is entirely irrelevant.

Now, he said there, and I think this was one of the passages:

So far as anywhere else is concerned, neither you nor I know whether there is such evidence one way or the other and it is entirely irrelevant. To your mind, excise it in this case.

Forget it. He then goes on further down the page to indicate that sometimes issues do arise about mental illness and diminished responsibility, over the page. He gives them a brief indication as to the impact of that in trials and then says at line 19, I think:

No such issue arises in this case. If such an issue had arisen, it is conceivable that evidence could have been called about the state of mind of the accused.
I emphasise to you there is no such evidence and I am not suggesting I know one way or other whether any such evidence exists.

He goes on to apologise for how long it has taken. He says at line 35:

You would have heard evidence and there were no questions even hinting that the accused had a disturbed mind.

He may well have withdrawn that. There were a number of matters which his Honour withdrew at the end, so I will not press that particular passage. Yes, he was asked to and did, in fact, withdraw it. At the bottom of that page, again said at line 45:

there is no issue in this case about the state of mind of the accused other than the allegation that if he was the person that caused the death, at the time of causing the death he intended to kill or do grievous bodily harm. You should put entirely to one side, first, the observation by the Crown Prosecutor about “disturbed mind” and secondly the observations by his opponent that you could have heard evidence called by the Crown or otherwise about it.

He then goes on to say:

I tell you as a matter of law is that you in this case put entirely to one side both the observations as to disturbance of mind made by the Crown Prosecutor and by counsel for the accused because one thing is certain in this case, there is no evidence as to the state of mind of the accused, so far as disturbance is concerned one way or the other. What you are invited to infer from the evidence is that whoever perpetrated these killings intended at that time to cause death or grievous bodily harm.
But insofar as the remarks that have been made to you invite you to speculate about disturbance of mind, in the sense that the phrase is commonly used, that is not an issue for deliberation in this case.

The Crown would say that on a fair reading of that the conclusion which was reached in the Court of Criminal Appeal by his Honour Justice Wood was open. At AB 1197, which is in paragraph 83 at about line 53, his Honour said:

Read fairly, and in its full context, what his Honour was at pains to do was make it clear that this was not a case in which any issue arose going to the state of health of the appellant’s mind, as would arise in a case where issues as to mental illness or diminished responsibility arose.
I am satisfied that the jury would have understood the remarks of his Honour to have been directed to that matter, and in that respect to have neutralised the somewhat ill‑advised and circular observation of the Crown Prosecutor. Once these directions were given, there is no reason for supposing that the jury were left with the apprehension that there might have been some uncalled evidence available to this effect, or that they might properly speculate that the accused had been suffering from a disturbed state of mind.
I am also satisfied that the directions did not have the effect of watering down the character evidence which remained available and capable of showing that it would have been out of character for this appellant to have committed crimes of the savagery here involved. Nor did it water down the proposition that the Crown had not proved, and could not prove, a motive on the part of the appellant – a matter it conceded throughout.

The Crown says that that conclusion was open to the Court of Criminal Appeal on any fair reading of the directions which were, in fact, given and of the context of those directions within the trial.

GAUDRON J: You have to put it a bit higher than that, do you not? You have to say that that was the view the jury would have taken or must have taken, and therefore there was no miscarriage of justice.

MR ELLIS: Your Honour, I think what the Court of Criminal Appeal was saying was that ‑ ‑ ‑

GAUDRON J: Or not satisfied that there is any miscarriage of justice, because the jury would have understood or was likely to have understood it like this.

MR ELLIS: Yes. Character evidence is not a defence. For instance, the Crown is entitled to make the observation that people of good character commit crimes. People of good character can commit terrible crimes and people of good character can have temporary aberrations in which such crimes are committed. Theoretically, the character evidence is not just contingent upon a person having no prior convictions, because theoretically all persons at one stage in their life therefore were of good character, but it also relates to reputation and evidence of disposition. In some cases, for instance, in Melbourne’s Case Mr Melbourne was I think around 60 years of age. Whilst I am thinking of that, I did look up the age, your Honour Justice Kirby, of the deceased, Mrs De Gruchy. She was aged 42. Mr Melbourne’s age of 60 perhaps was stronger evidence. Obviously a person who has no convictions by age 60 and of whom people speak well still at that stage probably has stronger evidence of good character than someone who, as is the case here, was but 18 years of age with a life still to lead.

So it was a matter for the jury to assess the character evidence, to assess what weight they would give to the character evidence in terms of both the disposition as well as the credit, but the difficulty that he had was that the cross‑examination of him inevitably, the Crown would say, would have led the jury to reject his evidence which undermines significantly the importance of character evidence in this trial, certainly so far as the credibility side of things.

The other case which was mentioned on motive was O’Donohue but in O’Donohue the jury were told that motive had absolutely no relevance. That is not what happened here. The correct direction is to say that the Crown does not have to prove motive but motive is still a factor which is to be considered and will have differing weight in different cases. There is no suggestion here that the jury were not completely aware of that issue of motive. The Crown says that had there been motive in this case, had the Crown been able to prove motive, it would have been an overwhelming case. As it was, without motive it was weaker but still a very strong Crown case.

KIRBY J: I notice that the jury were out the whole of the first day and sent a message that they could not reach a unanimous verdict, and then came back the next day and within half an hour had reached a unanimous verdict.

MR ELLIS: That is so, your Honour. It is not unusual in a trial of that length with that many witnesses and that many issues that they would be out for some time and, indeed, not necessarily unusual that there may be some form one view, at least initially, until other aspects of the evidence are highlighted for them. Perhaps what it does show, though, is that if one of the important legs, in terms of the strength of the defence case was motive, then that was effectively before the jury because it did take some time. It was not straight out and straight back with a result.

The difficulty is that the second leg which is argued as the strength, being the no injuries, really suffers from the fact that there is clear evidence that he did bleed in that house and, inferentially, within a very short period of time. So that, it is clear that whilst no one saw the injuries, he must have had injuries because of the blood that was located ‑ ‑ ‑

KIRBY J: The girlfriend and her mother would not have been looking for them. All that one can say is that there was no obvious injury.

MR ELLIS: One can hardly imagine that the mother ‑ she said that she saw him with a towel around his waist, so, naked from the waist up, but I mean it is her daughter’s boyfriend, she is not likely to be minutely examining all parts of his body with her eyes and there is no reason, at that point in time, for that to have been done. A nosebleed would not have been detectable, nor would a cut, for instance, under the hairline. The reality in this case, too, is that senior counsel, whilst asking for redirections, did not ask for a discharge of the jury.

It is hard to accept that very experienced senior counsel, alive to the particular issue, would not seek a discharge of the jury if he considered that a miscarriage of justice was about to occur. The Crown says that, in the context of the trial, that is a strong pointer to the atmosphere within the trial. The Crown would argue that even if there is some technical error, which the Crown does not concede, that the proviso would have been well and truly alive in relation to this case in any event, and whilst I do not wish to speak ‑ ‑ ‑

GAUDRON J: On what grounds?

MR ELLIS: On the grounds that nothing which was said or done in the directions would have caused a substantial miscarriage of justice or could have led to a loss of acquittal, bearing in mind the strength of the Crown case.

Your Honours, I think that all of the points are dealt with in greater detail in my written submissions and unless there is some particular area that your Honours would like me to go to, they would be my oral submissions.

GAUDRON J: Yes, thank you, Mr Ellis.

MR ELLIS: Thank you.

GAUDRON J: Yes, Mr Game.

MR GAME: First, that passage at 825 line 38 to 40, where it says:

You would have heard evidence and there were no questions even hinting that the accused had a disturbed mind.

That is a passage that the judge is telling the jury explicitly to reject, and that was what I framed as the Jones v Dunkel part of my argument. So he was actually telling them to put to one side what Mr Ramage had said in that respect. As I have put already, that is an important part of our argument.

Now, I mentioned this morning that Mr Ramage sought further directions at 859 and he raised the issue of character at 859 line 20. I took the Court to that passage but I did not read from it. I simply draw your attention to that passage. In addition, I neglected to direct you to 866 where defence counsel complained that the trial judge had not put the defence case adequately or fairly.

KIRBY J: The judge suggested that they were not speaking the same language.

MR GAME: They were not getting on particularly well, it would seem.

KIRBY J: At that stage of the trial it was a wonder they were speaking at all.

MR GAME: Anyway, that is all I wanted to say about that, your Honour. Now, the submission was put – I may be overstating it, but it was really at the heart of ‑ ‑ ‑

KIRBY J: Were there some parts that his Honour – you said something sotto voce to Mr Ellis about there were some parts of his directions withdraw. Were ‑ ‑ ‑

MR GAME: No. What I was trying to say was that that passage between line 25 and line 40 on page 825, what the judge does, where it says “responded by his opponent” and “responded to by his opponent”, where that ends up is that the judge rejects that. He is saying, “Put that submission to one side.” He did not withdraw the direction. He said, “Put that to one side.” That is where we say, amongst other things, that he fell into error.

Now, my friend – and I may be overstating this – put an argument that absence of motive was like no confession or no identification and built an argument about that. We say that that is completely wrong. We say that to show an absence of motive goes to the unlikelihood of guilt, and we draw that from that passage in Plomp’s Case that I referred to this morning from Justice Menzies’ judgment. Just as presence of motive goes to likelihood of ‑ ‑ ‑

McHUGH J: That, with respect, cannot be accurate, can it, to say it is no evidence of guilt? If it is relevant at all, it is a legal conclusion. It must be relevant to the question of whether or not the accused caused the act that brought about death, or the accused’s state of mind. It is each of those elements.

MR GAME: Your Honour may have misunderstood me, but all I was saying was that presence goes one way and absence goes the other way, in terms ‑ ‑ ‑

McHUGH J: Yes, I understand.

MR GAME: That is all I am saying. I am not saying anything more or less elaborate than that. I may have misunderstood your question, but that is all I am trying to say.

McHUGH J: I thought you were, in effect, inviting us to say something to the effect that absence of motive goes to absence of guilt. And what I was saying there, one has to be a lot more precise than that.

MR GAME: Sorry. Yes, the way I just put it is the way I would say it should be put. I accept that ‑ ‑ ‑

HAYNE J: The proposition is one that is slipping and sliding about onus and burden of proof.

MR GAME: But, your Honour, evidence of good character goes in centrally as to evidence as to the unlikelihood of guilt ‑ ‑ ‑

HAYNE J: I understand that, but ‑ ‑ ‑

MR GAME: So, too, can this.

HAYNE J: Motive?

MR GAME: Absence of motive.

HAYNE J: Proved absence of motive, I can understand. That is, the alleged arsonist who lost everything, financially, socially, et cetera, as a result of the fire might be proved to have no motive to have torched the business premises.

MR GAME: All it has to be is evidence of absence of motive. “Proved” does not take it any higher, unless you are talking about onus.

HAYNE J: Well, if there is no evidence demonstrating motive, the prosecution does not have something available to it which it might pray in aid in support of the proposition that it has proved its case. But the converse by no means follows, does it?

MR GAME: It depends on the evidence, but we would say that the evidence in this case tended to show, or went to prove, that the appellant did not have a motive. Now, that is all you need for it to be thrown into the mix with the character evidence and so forth, as evidence that goes to the unlikelihood of guilt.

McHUGH J: When you talk about the unlikelihood of guilt, what you are really saying is that it goes to the issue as to whether there was a reasonable hypothesis, on the evidence, consistent with the accused’s innocence.

MR GAME: Yes.

McHUGH J: Your case here has go to be that there was a reasonable hypothesis on the evidence consistent with the accused’s innocence and basically it was that the crime may have been committed by an unknown assailant and the factors that supported that hypothesis from an evidentiary point of view were these hairs found, if not clutched by Adrian at least on his hand ‑ and they were not the hairs of the accused ‑ that there was no proved motive – call it an absence of motive if you like – and he was a person of good character and all those factors support the hypothesis. Is there anything further that supported his hypothesis, Mr Game?

MR GAME: It depends what you make of them but there was the demeanour afterwards with the girlfriend on the following morning and there was the absence of injuries. I think that they were the main ones.

McHUGH J: For 40 years I have always had problems with a Peacock direction about reasonable hypothesis being consistent with innocence. I have always felt in some way it really inverts the onus.

MR GAME: It has been argued in a couple of cases in the Court of Criminal Appeal, unsuccessfully. Your Honour may recall that Plomp’s Case speaks in language of “a reasonable explanation consistent with innocence” and historically that is not quite what Peacock said and it is certainly not what Hodge said.

McHUGH J: Yes.

MR GAME: What has happened in the movement of the cases is that Plomp’s Case and Osborne v Martin have ‑ ‑ ‑

McHUGH J: Martin v Osborne 55 CLR.

MR GAME: Martin v Osborne, sorry. Then you move along to Knight’s Case – I notice that your Honour in Chamberlain’s Case argued on the bail application that Plomp’s Case was wrongly decided but you did not pursue that argument on the appeal. Once you talk about a reasonable explanation consistent with innocence ‑ and that is the language that this judge used in this particular case. He used language of Plomp. What that means is that in terms of the minds of the jury, the jury are going to have to find something that constitutes a reasonable explanation before they acquit. We have not sought to bite off the whole of the problems of Plomp v The Queen but what it means in practical terms is that you are looking for a reasonable explanation coming from the accused.

McHUGH J: That was understandable in the days of Peacock because, before Woolmington, once death was proved, there was in effect an onus on the accused to show that the accused was not responsible for the death. Woolmington blew that away. I have always had doubts about the directions in this area. In fact, when I was at the Bar I argued it a number of times. I had forgotten about arguing it in Mrs Chamberlain’s case.

MR GAME: I can only say I have argued it a few times myself unsuccessfully.

McHUGH J: Yes, I never had any luck either.

MR GAME: As soon as you talk about another explanation which is reasonable, then you are introducing something that the defence has to prove, and that is what the Plomp direction does. The relevance of it for this case, without biting off the whole subject, is that the defence does have to get something into the mix that will, as it were, discharge that evidentiary onus of bringing in a ‑ ‑ ‑

McHUGH J: Yes. You have to raise an evidentiary onus ‑ ‑ ‑

MR GAME: Yes.

HAYNE J: Which is driving us back to the point that I was coming to with Mr Ellis about the function of the judge. The function of the judge is to identify the issues. That was easy in this case. There was a single issue. It might have been said there was an issue about intention, but given the injuries really intention surely went away. The only real issue in this case was: was it the accused? Then what is the function of the judge? How much further must the judge go?

MR GAME: If he is going to say – I have found the passage, now, at page 819.

HAYNE J: I understand you say what he said was wrong.

MR GAME: No, this is a little bit different, your Honour. This is the Plomp direction. At line 26:

It follows that if there is another finding which is reasonably open, that is if there is another reasonable explanation –

that is to say so you have to bring something into the case and if you have to bring something into the case ‑ ‑ ‑

GAUDRON J: The direction should be, should it not, if it is possible that there is another explanation – reasonably possible?

MR GAME: Which is reasonably open that it ‑ ‑ ‑

GAUDRON J: If it is possible that there is another explanation, there is some other reasonable explanation, or if it is reasonably possible that there is some other explanation, either would seem to do it.

HAYNE J: But, again, we are down flirting with let us explain to the jury what “reasonable doubt” means which has never been helpful.

McHUGH J: Certainly, I would think that the direction at 819 at 25 is wrong.

MR GAME: I would say that it is put that it is wrong, too, but ‑ ‑ ‑

McHUGH J: No point has been taken about it. Barca suggests that it is just enough that you raise an issue and to talk about if there is another finding rather places an onus on the accused to establish ‑ ‑ ‑

MR GAME: That is what we put but the reason I am relying on it now is for another purpose, which is to bring in the relevance of absence of motive, but that – if I just mention Knight v The Queen again. What happened in Knight v The Queen was that a formulation of words very similar to that sentence was approved from Martin v Osborne and that is where the jurisprudence stands at the present time on this kind of direction, but I might mention, also, whilst on this topic, that those words ‑ ‑ ‑

McHUGH J: Did not Knight refer to a rational possibility?

HAYNE J: If there is error here, it is that the judge has used finding in making the contrast rather than finding followed by possibility, which was the true contrast, and it is going from one line to the next where the error has crept in.

MR GAME: Yes. I know this is not, strictly speaking, relevant to this appeal, but at the bottom of page 815 there is a Supreme Court of Canada authority that says that those words, with respect to “beyond”, “reasonable” and “doubt” should not be used, and one day that will have to be ‑ ‑ ‑

HAYNE J: Again, it may be that one day we ought to look at this question of possibility reasonably open or other variance on that theme, about whether judges ought to be telling jurors how to perform their task of assessing the fact.

MR GAME: Yes. Now, with respect to the submission that was put by Mr Ellis to the effect that ‑ it went like this, in effect, that since Mr De Gruchy was substantially discredited in cross‑examination, therefore, the character directions were not so important. Well, we would dispute that proposition, and I know Melbourne is a more recent authority on the proposition, but in Stalder (1981) 2 NSWLR 17 at point G, Chief Justice Street made the point that good character went to the topic, in effect, of unlikelihood of guilt and that credit was incidental and he described it as such.

GAUDRON J: Mr Game, one of the problems I have with this is, it seems to me inevitable that counsel would have addressed the jury on the absence of motive - we will just use that term for the moment - and it seems that the prosecution conceded that it had not proved a motive otherwise it would not have strayed into the “disturbed mind” area. Now, one wonders whether, really, there was any need for any directions about motive at all.

MR GAME: But, your Honour, what has happened is that no motive is being turned into unknown motive, into you can ignore motive. That is the effect of ‑ ‑ ‑

GAUDRON J: But the trial judge said, “Just ignore what people have said about that. Just ignore it.” It seems to me almost inevitable that there must have been addresses about motive and absence of motive.

MR GAME: No doubt.

GAUDRON J: So there was no need in this case really for the trial judge to get into that area unless in some way the “disturbed mind” submissions or directions brought it back into play.

MR GAME: If the matter had been left at the end of defence counsel’s address in a way that put forward the evidence showing an absence of motive, untrammelled as it were, then maybe that proposition would have some force. Even if that were correct, what the judge says at page 822 undercuts that proposition. It takes it away from that. It is taking away the proposition that absence of motive is a positive circumstance. It is trying to say that motive is unknowable. That is what it is trying to say. That is why it is putting those two different propositions.

There is something else – this is a sideways look – but the character said if you find the evidence of proved character likewise ties back into what was said about the reasonable explanation, that is the language of the defence having to establish something which makes it that much ‑ ‑ ‑

HAYNE J: Or is it just the judge leaving to the jury the conclusion about which evidence they accept and which they reject.

MR GAME: It could be.

HAYNE J: The judge could hardly say to them, “You must conclude this man is a person of good character”, could he?

MR GAME: That is true. No, it is true in the context of the evidence of this case, because the character evidence was not the subject of serious challenge.

HAYNE J: He told them, “Listen, there’s the evidence. It is unchallenged. It’s a matter for you.”

MR GAME: Yes.

HAYNE J: On this question of motive, are we talking about motive to kill or motive to kill with the brutality that occurred? Does it matter?

MR GAME: The case that was discussed in Plomp seemed to suggest that the brutality of the killing and the motive were somehow connected to each other. That in a case where there is ‑ ‑ ‑

HAYNE J: Mr Plomp went for a swim with his wife, and Mr Plomp came out of the surf and Mrs Plomp did not. That was a relevantly narrow ‑ ‑ ‑

MR GAME: No, but the other case where Chief Justice Griffiths’ passage is referred to, it speaks to crimes of where a man does an extraordinary or a wicked thing et cetera. It may be that the brutality of the issue is relevant to the issue of motive. It is not just the motive to kill, but to kill in a very violent way. That may be so.

There was another point that I mentioned in passing this morning. There were reports which the Crown – which everybody had, which showed that the appellant had a perfectly normal mind, and they were in the possession of the parties, and the Crown’s submission was made knowing that to be the case. Just a couple of factual matters. With respect to the evidence about the hairs. The evidence of Mr Cala was at page 655, referred to a number of hairs, 655 and 656, your Honours. That was the material that your Honour Justice Gaudron asked for.

GAUDRON J: Thank you.

MR ELLIS: Line 28 to 42 on 655, and line 50 from 656 through to line 40 on 657.

MR GAME: Just a couple of other short factual matters, and I will just give page references and mention them. With respect to the blood on the floor, it is said that the stains were extremely faint, and that is at 61. The knob in the vanity case only reacted for blood in preliminary tests, and the DNA tests were unsuccessful, and that is at 275. At 598, with respect to the smudge on the jerry can, it could not be said whether or not it was a wiped fingerprint. With respect to reverse phone calls, the question your Honour Justice Kirby asked, at page 517 the evidence was you cannot do reverse phone calls. Those are the matters that I wanted to address in reply.

GAUDRON J: Thank you, Mr Game. The Court will consider its decision in this matter, and will adjourn until 10.15 am tomorrow.

AT 3.23 PM THE MATTER WAS ADJOURNED

[2002] HCATrans 72

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