| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0241 |
| ASHLEY FEETHAM | Applicant |
| v | |
| THE KING | Respondent |
---
| JUDGES: | EMERTON P, BOYCE and ORR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 March 2025 |
| DATE OF JUDGMENT: | 7 August 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 179 |
| JUDGMENT APPEALED FROM: | [2023] VSC 676 (Kaye JA) |
---
CRIMINAL LAW – Appeal – Conviction – Murder – Unreasonable jury verdict – Two brothers stabbed by applicant in altercation at house – Wounds to one brother fatal – Inconsistent accounts from witnesses – Whether applicant was aggressor or acted in self-defence – Whether open to jury to accept surviving brother’s account of stabbing despite demonstrable lies about circumstances leading up to altercation – Leave to appeal refused.
Pell v The Queen (2020) 268 CLR 123; M v The Queen (1994) 181 CLR 487; Jones v The Queen (1997) 191 CLR 439.
CRIMINAL LAW – Appeal – Conviction – Directions given by trial judge – Proof beyond reasonable doubt – Sections 63 and 64 of Jury Directions Act 2015 – Whether error to direct jury prior to evidence being adduced that ‘proof beyond reasonable doubt’ are plain ordinary English words that mean what they say and do not admit of any better definition – Whether such direction constituted an explanation of the standard of proof – Whether such direction impermissibly precluded jury from asking questions about the standard of proof – Leave to appeal granted – Appeal dismissed.
Jury Directions Act 2015, ss 63 and 64.
Farshchi v The King [2024] VSCA 235; Karam v The King [2023] VSCA 318; Awad v The Queen (2022) 275 CLR 421; Subramaniamv The Queen (2004) 79 ALJR 116.
---
| Counsel | |||
| Applicant: | Mr C Carr SC with Mr H Rattray | ||
| Respondent: | Mr D Glynn with Ms R Barrett | ||
Solicitors | |||
| Applicant: | Balmer & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
EMERTON P
BOYCE JA
ORR JA:
Following a 13-day trial before a judge of this Court in October 2023, the applicant was convicted of one count of murdering Dylan Bond and one count of intentionally causing serious injury to Dylan’s younger brother, Heath Bond.[1]
[1]The charge of murder was contrary to common law. The charge of intentionally causing serious injury was contrary to s 16 of the Crimes Act 1958.
The charges arose out of events that occurred on the afternoon of Monday 26 April 2021 at a house at 2A Fagg Street in Thomson, a suburb of Geelong. Heath Bond had previously resided at this address with Abbey Sexton, to whom he had been engaged. The relationship had recently broken down and Heath had moved out of the house. Abbey had commenced a relationship with the applicant. On the afternoon of 26 April 2021, the applicant was at the Fagg Street address. Heath arrived at the house with his brother, Dylan. During the minutes that followed, Dylan was stabbed multiple times with a kitchen knife, Heath was stabbed once to the chest and the applicant sustained lacerations to his left hand. Dylan died at Fagg Street that afternoon.
The applicant seeks leave to appeal his convictions on two grounds. By proposed ground one, the applicant contends that the verdicts are unreasonable and cannot be supported having regard to the evidence. By proposed ground two, the applicant contends that the directions given to the jury in relation to the standard of proof breached ss 63 and 64 of the Jury Directions Act 2015.
For the reasons that follow, we would grant leave to appeal on proposed ground two only and dismiss the appeal.
Prosecution case
The prosecution opened its case on the basis that it was the applicant who was the aggressor in the events that occurred at Fagg Street on the afternoon of Monday 26 April 2021.
The prosecution referred to a disagreement between the applicant, Heath and Dylan, which had been ‘bubbling away’ over the course of a day or two. The disagreement had its origins in events that had commenced some months prior, when Heath had become suspicious about the nature of the relationship between Abbey, his then fiancée, and the applicant. Around Easter 2021, Heath saw messages on Abbey’s phone that he believed confirmed his suspicions. Heath and Abbey then separated and Heath moved back to his mother’s house in Corio. However, Heath had ‘unanswered questions’ about the relationship between Abbey and the applicant, including how long they had been seeing each other and whether their relationship was ongoing.
On Saturday 24 April 2021, two days before the fatal afternoon at Fagg Street, Heath and the applicant were involved in a late night altercation in the Geelong CBD. Abbey and the applicant were at a nightclub with their friends, Jade Angus and Jackson Marshall. Heath was at another nightclub. Heath contacted Abbey and asked to meet up, to which Abbey agreed. When she told the applicant she was going to meet with Heath, he was not happy and walked off. Heath and Abbey met near the corner of Moorabool Street and Corio Street in the early hours of the morning of Sunday 25 April 2021. They had a lengthy conversation about various aspects of their relationship, and the reason it had ended. The conversation was emotional and argumentative. Heath told Abbey that if she continued to see the applicant, their relationship was at an end.
At some point, the applicant returned and approached Heath and Abbey. He accused Heath of treating Abbey badly. The prosecution case was that the applicant resented the fact that Heath and Abbey were still interacting. He felt angry and jealous. An argument quickly developed between the applicant and Heath. Their interaction became physical. It was captured on CCTV cameras. The applicant attempted to punch Heath but his punch connected with Jackson Marshall, who was also present by this time. The applicant then punched Heath and the two of them wrestled. The applicant headbutted Heath about four times. Following this physical confrontation, Heath walked off. He said something to Abbey about their relationship being over. Abbey and the applicant returned to the Fagg Street address.
On Sunday night, Heath messaged Abbey to tell her that he was going to collect the rest of his belongings from the Fagg Street address the following day. In the early hours of Monday morning, he messaged Abbey again, asking if they could talk further.
Abbey left the Fagg Street address at 5.20 am on Monday morning and drove to work in Colac. The applicant remained at Fagg Street. Heath sent Abbey further messages and they spoke by phone while she was driving to Colac. They tried to arrange a time to meet up and talk. Heath wanted to meet at Fagg Street, but Abbey said that her father was there. The prosecution contended that this was a lie and that the real reason Abbey didn’t want to meet at Fagg Street was that she knew the applicant was still there. She and Heath instead agreed to meet at the Anaconda store in Geelong that afternoon after she had finished work and driven back from Colac.
Just after midday, Heath and Dylan’s mother messaged Abbey, asking her about what had happened on the weekend. Dylan also called Abbey to discuss what had happened in the Geelong CBD. At 12.32 pm, Abbey called the applicant and told him that Dylan had said he was going to come after the applicant. The applicant said something like, ‘let him come’. At 12.40 pm, having found Dylan’s Facebook profile, the applicant sent Dylan the following message: ‘Hey bro what’s happening’. Dylan replied, ‘You tell me’. The applicant said, ‘Don’t know. Abbey called me yelling and screaming that you’re coming after me so I thought I’d skip the back and forth tit for tat and get straight to the point’.
The applicant and Dylan exchanged a series of messages, which became increasingly heated. They spoke about accusations that the applicant had made against Heath during their altercation in the Geelong CBD. At one point, Dylan said, ‘Come on then champ let’s sort it’. At another, the applicant said, ‘I’ll have no remorse in chucking you in your own boot’ and ‘Come to abbey’s 2a Fagg Street’. The applicant then sent Dylan a four second video showing him in the lounge room at Fagg Street. He said, ‘I don’t do this tit for tat bullshit you know where I am’.
Around the same time, the applicant was exchanging messages with Abbey, in which he told her that if she went to meet up with Heath, he wouldn’t be there when she got back. At 3.01 pm, he forwarded Abbey a message showing that he had sent Dylan the video of him at Fagg Street.
At 3.06 pm, Dylan forwarded Heath the video he had received from the applicant. At 3.08 pm, the applicant messaged Dylan, ‘You’re making your brother look more like a little bitch. Can’t fight his own battles’. Dylan responded, ‘Mate, you’ve dug yourself quite the hole here’.
Between 3.12 pm and 3.17 pm, the applicant messaged his sister, Melissa. He said, ‘Heath and his brother is coming to Abbey’s to get me. Can you bring a hammer or something?’. Melissa responded, ‘I’m on my way’. The applicant then messaged Melissa, ‘I got one’. The prosecution case was that the applicant was referring to the kitchen knife that was later used to stab Heath and Dylan. This exchange occurred about 25 minutes or half an hour before the fatal incident.
At 3.26 pm, the applicant rang Jade Angus, who was by that time with Abbey in her car. They were driving towards the Anaconda store in Geelong. The applicant spoke to Abbey on loudspeaker for just over six minutes. At 3.35 pm, the applicant called Abbey and Jade again. They spoke for just over seven minutes. The applicant told Abbey that their relationship would be over if she met up with Heath. The prosecution case was that while he was having these conversations, the applicant was sitting on a chair on the front porch at Fagg Street, having a cigarette and keeping a lookout onto the street.
While the applicant was on the phone, the applicant’s mother, Lorraine Foreman, arrived at Fagg Street in her car. She had brought a metal rake with her, which was in the front seat. She parked on the street and spoke to the applicant from inside her car. She asked the applicant if he wanted to go home. He gestured to indicate that he was on the phone and kept talking on the phone.
A few minutes later, the applicant’s sister, Melissa, arrived at Fagg Street, with some of her children in the car. She parked her car next to her mother’s car. Melissa told her mother that Heath and his brother were coming over. She also said that Abbey was meeting Heath and his brother at Anaconda. Melissa and Lorraine remained outside the house for some time, waiting for the applicant to get off the phone. The applicant did not make any attempt to leave the premises.
At about 3.40 pm, Dylan and Heath arrived at Fagg Street, having left Dylan’s house in Heath’s car at about 3.30 pm. Heath initially pulled the car up behind Lorraine’s car. He and Dylan sat in the car for around five minutes before driving off and parking around the corner.
The prosecution case was that Heath and Dylan then got out of Heath’s car and approached the house. Melissa yelled out to the applicant, warning him that they were coming, and the applicant went inside the house. Melissa approached Heath and Dylan and said, ‘You’re not going to rough him up, are you?’, to which Heath and Dylan replied, ‘No, we’re not going to touch him’. Melissa stepped in between them but Heath walked to the side of the house where there was a sliding door. The prosecution said this had been the normal way for him to enter the house when he had lived there.
Heath yelled out, ‘Ash’, and half-opened the sliding door. He looked up to see the applicant run out of the lounge room area into the kitchen and dining room area. The applicant was holding a large kitchen knife in his right hand. He ran towards Heath and, without saying anything, stabbed Heath once directly to the left side of his stomach, causing a serious and life-threatening injury. Heath stepped back and yelled out to his brother, ‘knife’. Dylan went to where Heath was hunched over at the side of the house. The applicant then swung the knife at Dylan, and may have made contact at this time.
Dylan and the applicant then went inside the house, and there was a scuffle. Dylan tried to restrain the applicant, who was holding the knife. The applicant stabbed Dylan a number of times, including the fatal stab to Dylan’s chest. During this altercation, the applicant received cuts to his left hand.
At some point during these events, each of Melissa and Heath entered the house. Melissa was carrying the metal rake from her mother’s car. She screamed, ‘Get out, get out’, and hit Heath and Dylan with the rake. Heath took the rake off Melissa, threw it on the floor and pushed Melissa away.
Dylan collapsed on the floor. Heath assisted him. The applicant and Melissa left the premises. Heath moved outside, screaming for help. A neighbour attended and called Triple 0. The applicant got into his mother’s car and they drove off. Melissa also drove off, stopping when she saw Abbey and Jade, who had arrived in their car. She told Abbey to go and help Heath.
At 3.47 pm, the applicant’s mother called Triple 0 and reported a stabbing. She said that she was on the way to Geelong Hospital with her son, who had cuts to his hand.
Police attended the Fagg Street address from about 3.50 pm. Dylan was found unresponsive on the floor. He had been stabbed four times. Attempts to resuscitate him were unsuccessful. The fatal stab wound was to the left side of Dylan’s chest. He had also sustained stab wounds to his left hip, the lower left side of his back, and his face. The fatal stab wound was approximately 14 cm deep. The kitchen knife used to inflict the wounds was found on the floor at the house. It had no hilt and had a blade that was approximately 18 cm long.
The applicant was arrested at Geelong Hospital at 4.50 pm that afternoon. He had incisions to his third, fourth and fifth fingers of his left hand, as well as abrasions to his scalp, forehead, chest and right hand, and bruising to his cheek and right hand.
Heath underwent emergency surgery and remained in hospital for a number of days. There was no dispute that the injuries Heath sustained constituted a serious injury as defined by law.
Defence case
The defence case was that the applicant had acted in self-defence. The applicant’s version of events was contained in a series of recorded conversations with police on the day of the fatal incident, as well as a formal interview on 29 April 2021.
In those conversations and interviews, the applicant said that Dylan had messaged him on the afternoon of the fatal incident, saying that he knew where the applicant lived. The applicant said he was concerned that Heath and Dylan might arrive at the Fagg Street house that afternoon, but he also thought they might be going to Anaconda. He said that when Heath and Dylan arrived, he locked himself inside the house. He believed that Dylan and Heath were going to harm him, and he heard them utter threats outside the house.
The applicant told police that he saw the side sliding door rattling and moving, and as he got within five to 10 metres of the door, Heath came through it. The two men rushed at each other and started punching each other. Shortly after this, Dylan entered the house and the fight became ‘two on one’. Both Dylan and Heath were on top of the applicant and punching him. After a short period, Dylan broke away and grabbed a kitchen knife that was on the kitchen bench. The applicant lunged for the knife. He grasped the knife with his left hand and badly injured three fingers of that hand. The three wrestled for a short period. It was dynamic situation and at some point the applicant got hold of the knife. He waved it around in his right hand. Shortly after, the fight stopped and Dylan collapsed.
The defence case was that Heath’s account of the events at Fagg Street, and the lead up to those events, was false. There was no independent support for his evidence and it was contradicted by other evidence, including the medical evidence and the evidence of Melissa Feetham.
Directions prior to the commencement of the evidence
On the second day of the trial, after opening addresses had been given and before the evidence had commenced, the judge gave the jury directions that included the following:
Now, can I start with the burden of proof in this case which is a most important issue in any criminal trial. Counsel have correctly referred to it. It is important that I give you directions relating to it because it is a matter of law of central importance in a criminal trial. As I think you will all understand but it is important to understand it is a cardinal principle of our criminal justice system that any person who is charged with a criminal offence is presumed to be innocent of that offence unless and until the prosecution proves the guilt of that person on that charge beyond reasonable doubt.
Now, that's the principle that you've no doubt have commonly heard referred to as the presumption of innocence. It is the central principle of our system of justice. What it means is that the prosecution charges a person and brings that person to the court and the prosecution bears the burden or onus to prove the guilt of that person on that charge beyond reasonable doubt.
Now, it is important to bear in mind throughout the trial that that burden or no burden ever shifts onto the accused man to prove anything. He is not required to prove anything at all during the trial at all. Throughout the trial from the very beginning until the end of your deliberations, the burden of proof remains on the prosecution.
Now, as I've stated the prosecution must prove the guilt of the accused man on the particular charge you are considering beyond reasonable doubt. That is the highest standard of proof known in our law. The words ‘beyond reasonable doubt’ are plain ordinary English words and they mean exactly what they say. They really do not admit of any better definition.[2]
[2]Emphasis added.
No exception was taken to these directions.
Evidence
The prosecution called evidence from Heath, Abbey, Melissa Feetham, Lorraine Foreman, Jade Angus and various police and medical witnesses. The key witnesses were Heath and Melissa, each of whom gave evidence about the events at Fagg Street.
Heath Bond
Heath gave evidence that he and Abbey had started going out in about 2018 and commenced living together at the end of that year. They signed the first lease for the Fagg Street property in February 2019. They were engaged by early 2020.
Heath said he met the applicant at the applicant’s house around the end of February 2021, while he and Abbey were living at Fagg Street. He and Abbey had been invited over to the applicant’s place for drinks. Others were also present, including the applicant’s sister, Melissa.
In the months that followed this visit to the applicant’s house, Heath said that he and Abbey became more distant. Heath was suspicious and went through Abbey’s phone. He found messages between Abbey and the applicant, which he believed showed that Abbey was sneaking out behind his back while he was at work and going to see the applicant. He spoke to Abbey about it. This was probably the day after Easter Sunday, which was on 4 April 2021.
After this discussion, Heath moved out of the house at Fagg Street and back to his mother’s house. He said he had unanswered questions about his relationship with Abbey and her relationship with the applicant. He had a mixture of positive and negative feelings towards Abbey, but he believed that the engagement was still on foot. They maintained contact but things were rocky at best.
On Saturday 24 April 2021, Heath saw Abbey for the first time since he had moved out about three weeks earlier. He had met up with a couple of mates and gone to the St James Nightclub in the Geelong CBD. A friend of his told him that he had seen Abbey. Heath contacted Abbey by phone and they arranged to meet on the corner of Corio Street and Moorabool Street. Heath met Abbey and they talked for around two and a half hours, into Sunday morning. At times, others joined them, including Abbey’s friends Jade Angus, Crystal, and Jackson Marshall.
Heath said that at around 2.00 am, the applicant appeared. Heath turned to Abbey and said, ‘Tell him to fuck off’. He didn’t think the applicant heard this. As the applicant approached, Heath instinctively stood up. He and the applicant threw a few words at each other. The applicant said things about what sort of person Heath was, and made derogatory comments about how Heath had treated women in the past. Heath was offended but didn’t react to the comments and laughed at the applicant. They were then ‘enticed in a scuffle’. The applicant threw the first punch. Heath defended himself by grabbing hold of the applicant’s shoulders with force and pushing him backwards towards the street. He said he may have grabbed the applicant around the neck or throat but he did not throw a punch. The applicant struck him multiple times, including on the temple. The applicant headbutted him roughly four times. Abbey’s friends were all jumping in and trying to tear them apart. Heath let go of the applicant and they decided to walk away and separate. He walked back to the friend’s house where he was staying that night. As he walked away, he said to the applicant, ‘You can fucking have her’.
At 4.33 am on Sunday 25 April 2021, Heath messaged Abbey, ‘But it’s okay. You go out with him after we split. I understand now. And you walk with him after a scruffle [sic] so I get it’. He said that by this message, he was conveying that if she wanted to pursue something with the applicant, she could, because there was no point in holding on to anything anymore. He had decided that there was no future for him and Abbey.
That afternoon, Heath messaged Abbey, ‘It’s okay. Enjoy everything’. At 7.26 pm, when he had received no response from Abbey, he messaged her, ‘Seriously’.
At 10.00 pm, Heath messaged Abbey, ‘I’m getting my shit tomorrow’. He said he had left some clothing that had belonged to his father at Fagg Street. His father had passed away and the clothing was sentimental to him. Heath said that by this point, he no longer had unanswered questions about the status of his relationship with Abbey or the status of her relationship with the applicant.
Heath’s evidence about the events that occurred on the following day, Monday 26 April 2021, in the lead up to the fatal incident that afternoon, was unclear or inconsistent in a number of respects.
Heath said that he sent a further series of texts to Abbey that morning. They included a message that said, ‘Finish this in person’. He said he may have also spoken to Abbey by phone while she was driving to work in Colac. He said that Abbey told him that she finished work at 2.30 pm and would meet him somewhere. When Heath suggested that they meet at Fagg Street, Abbey said that her dad was going to be there. Heath suggested that they meet at the house after Abbey’s dad had left, but she said she didn’t know what time that would be. They later agreed to meet at Anaconda in Belmont instead. Heath said he wanted to find out why Abbey had done the things she did in their relationship. When asked by the prosecutor what time he had arranged to meet Abbey at Anaconda, Heath initially said that they were to meet at 2.30 pm. Later in his evidence, he said he was uncertain about that timing. He then agreed that the meeting was to be at 3.30 pm.
Heath said that he called Abbey at about 2.15 pm, although he later conceded that this time was wrong. He said that by the time he spoke to Abbey, he had seen a video that the applicant had sent Dylan that showed the applicant at Fagg Street. He asked Abbey why she had lied to him about her dad being at Fagg Street. He initially said that he and Abbey didn’t speak in the call about the meeting they had arranged at Anaconda for that afternoon. He then said that he had told Abbey in the call that she could forget about the meeting at Anaconda, that he was going to get the rest of his shit now and that that was it. He said the phone call ended when he hung up on Abbey.
Heath denied that he had ever said to Abbey that if she didn’t agree to meet at Anaconda, he would go around and ‘get’ the applicant. He said he only had one phone call with Abbey around this time, and he could not explain why phone records indicated that he had called her three times between 3.10 pm and 3.23 pm, and that they had spoken for almost 20 minutes in total.
When asked by the prosecutor at what time he saw the video showing the applicant at Fagg Street, Heath said that Dylan showed it to him while he was on the phone to Abbey in his car, on their way from Dylan’s home to Anaconda. He said they had left Dylan’s home at around 2.00 pm, although he later accepted that this time was wrong. He said that it was at this point that he had decided not to go to Anaconda to meet Abbey but instead to go to Fagg Street to collect his father’s property. He said that after he saw the video, he felt ‘pure resentment’. He knew that the applicant would be at the house when he went to get the property, but he said he had no intention of trying to interact with him. He knew they would have to have ‘a small discussion as to why I am actually at the property and I was thinking that would be it’. He denied that he had continued to suggest to Abbey that she meet him at Anaconda to ensure she wouldn’t be at Fagg Street when he and Dylan got there.
When asked in cross-examination whether he had seen the video for the first time while he was in the car, Heath confirmed that he had. He said that they were driving on the North Geelong Bridge coming off the Princes Highway when Dylan showed him the video. However, after counsel for the applicant showed Heath some messages indicating that Dylan had forwarded the video to Heath using Facebook Messenger and that Heath had responded at 3.06pm by messaging ‘You’re fucking kidding me’, Heath accepted that he had not seen the video for the first time in the car. He then said he couldn’t remember most of that day.
Heath then said there were two videos, and that it was the second video, which Dylan showed him in the car, that caused him to change his mind about going to Anaconda. When asked to explain what was in the second video, Heath said it was ‘just the same’ and that he ‘couldn’t explain it’. He also could not explain why Dylan had only received one video from the applicant at 2.56 pm. He later said that his brother had ‘re-shown’ him the video in the car and he didn’t know if the same video had been ‘re-used’.
Heath accepted that he had gone to Dylan’s house after receiving the video on Facebook Messenger from Dylan, and that it was because of the video that he went to Dylan’s house. He agreed that at the same time he had received the video from his brother, they were exchanging text messages. At 3.05 pm, Dylan had messaged Heath, ‘Apparently that Ash bloke is in your old house’, to which Heath responded, ‘What’. At 3.08 pm, Dylan then messaged Heath, ‘Wanna go for a drive?’.
Heath said that it was after receiving this message that he had driven to his brother’s house. Then at 3.17 pm, he messaged his brother, ‘Let’s go dude’. He said that he didn’t know whether he had sent Dylan this message when sitting in his car outside Dylan’s house, or when he was in the toilet inside Dylan’s house. He said that he had gone into Dylan’s house and spent roughly 10 to 15 minutes there. They left for Fagg Street immediately after he sent that message at 3.17 pm. At another point in his evidence, Heath said that he and Dylan got to Fagg Street at around 3.00 pm.
Heath accepted that there were various inconsistencies between his evidence and previous accounts he had given about the events leading up to the incident at Fagg Street, including the events in the Geelong CBD on the weekend. He also accepted that he had told a police officer at the hospital that he and Dylan had gone to Fagg Street to get straight answers from the applicant. He said that he was on painkillers at that point and not really thinking. He said that his first and only priority had been to get his father’s property. Heath also accepted that he had said in his formal police statement that he had wanted to speak to the applicant because Abbey constantly lied to him and the applicant hadn’t lied to him yet; he needed ‘a form of understanding’; and he wanted to know if they’d ‘done shit’. He ultimately accepted that he had gone to Fagg Street with two intentions, one being to collect property and the other being to speak with the applicant about his relationship with Abbey. He also agreed that he had thought it was possible, or that there was a high probability, that there might be a physical altercation.
Heath said that when he and Dylan arrived at Fagg Street, two cars were there. There was a female driver in one of the cars, who he didn’t recognise. He saw Melissa Feetham come out of the other car and saw two of her children in that car. He said he stopped the car in Fagg Street for up to three seconds but there were no parking spots. He then continued around the corner and parked the car there. He and his brother got out of the car and walked to the Fagg Street property. They were outside the property about one and a half minutes after they had first stopped the car in Fagg Street.
As Heath and Dylan were walking towards the property, Melissa walked up to them and said, ‘You are not going to rough him up, are you?’. Dylan and Heath both responded, ‘No, we’re not going to touch him’. At this point, the other woman was still sitting in the driver’s seat of her car.
Heath said he then walked to the side sliding door of the property, which was the main point of entry. Dylan and Melissa had stopped where the fuse box was on the same side of the property, where they had ‘an interaction’. Heath said he could not hear what they said. Heath denied that Dylan had stayed outside the front door of the house to prevent the applicant from running out that door. He said that neither he nor Dylan had any weapons. Melissa was also not holding anything.
Heath said that as he walked past the windows on the side of the house, he yelled out, ‘Ash’. He did this ‘to acknowledge in what direction I was’, and so the applicant ‘wouldn’t be startled’. Heath then slid the side door open. The door was unlocked, but Heath accepted that he knew how to lift it up and push it open even when it was locked. Having opened the door, he said he did not step into the house but remained on the ‘trim’ for five seconds or less. He accepted that he had told the police at the hospital that he had stepped inside the house, but said that was not correct and that his ‘head wasn’t working that day’.
Heath said he then saw the applicant rushing in a full sprint out of the lounge room ‘and then as soon as he gets to the bench I am aware that he’s holding a knife in his right hand’. The blade of the knife was sticking up. He said that the applicant then ‘decides to put [the knife] between my ribs’. Heath then stepped out and off the premises and hunched over, holding his ribcage where the knife had entered. He called out, ‘knife’, to Dylan as a warning that a weapon was being pulled. Dylan came to Heath’s side and held him. The applicant was in the doorway and stepped onto the ledge and closer towards Heath and Dylan. Heath didn’t know if the applicant swung at or struck Dylan at this time. He said that Dylan let him go and rushed into the house and started to restrain the applicant.
After a ‘very short period of time’, Heath rushed to his brother’s side in the house. He said he froze right next to him ‘as I already see his jumper drenched in blood’. Heath was standing about three centimetres away from Dylan. Dylan had his hands on the applicant’s shoulders and had pushed the applicant against the wall. The applicant’s left hand was on Dylan’s right shoulder and Dylan was using his right hand to strike the applicant in the face. Dylan struck the applicant three or four times. While this was happening, the applicant’s right hand was going over Dylan’s left arm and stabbing Dylan in the chest with the knife. The knife was pointed upright but as the applicant’s arm was coming over, the knife was pointed to Dylan’s chest. The applicant was using a round arm action and then bringing the knife down. Heath said he probably saw Dylan being stabbed five or six times to his ‘central chest’. The blade of the knife was bent afterwards.
Heath said Melissa then ran in from behind and struck him and Dylan with a rake. Heath felt it on his upper back. He said that Melissa hit them once, striking them both at the same time. Under cross-examination, Heath accepted that he had previously said that he was struck two or three times with the rake. He said he could not now remember how many times it happened. Heath said that Melissa must have come in through the sliding door because Heath could see the front door in his peripheral vision and it did not open. He said that after Melissa hit them with the rake, he was able to ‘snap out of it’ and he turned and grabbed the rake off her and threw it away. He said he did not push her away. Heath did not see the rake before this. It felt to him like there was 10 seconds or so when he had his eyes away from Dylan and the applicant to focus on Melissa.
Heath said he and Dylan were then able to separate from Melissa and the applicant. Dylan said, ‘You fucking dog’, to the applicant. Dylan’s eyes then rolled into the back of his head. He collapsed and Heath caught him on his way down. The applicant and Melissa ran over the top of them and left through the sliding door. Heath put Dylan down, fell out the sliding door and called out for help. After a neighbour came, he crawled onto a garden chair and lay there until help arrived.
Heath said that at no time did he see Dylan holding the knife, or holding the applicant’s hand or arm. It felt to him like the entire episode took six minutes or maybe a bit more. He denied that the events in the house were a dynamic situation or that there was a wrestle for the knife.
Abbey Sexton
Abbey gave evidence that, at the time of the trial, she remained in a relationship with the applicant. She said she had previously been in a relationship with Heath. She met Heath in 2015 and started going out with him in 2018. They had started living together in 2019 and became engaged in 2020.
Abbey said she met the applicant in January 2021 through her friend’s Snapchat. In February 2021, she and Heath went to a gathering at the applicant’s house. The applicant’s sister, Melissa, was also there. After this, Abbey met up with the applicant on occasions without Heath’s knowledge. In the lead up to Easter of 2021, her feelings towards Heath changed and their relationship became rocky. Heath had spoken to her about messages he had seen on her phone and he didn’t want her speaking to the applicant anymore. She told Heath that the applicant was just a friend but she continued talking to him without Heath’s knowledge. At Easter, Abbey’s relationship and engagement with Heath ended. Heath left the house and moved back to his mother’s house on the Wednesday after Easter. After a week, he had moved most of his stuff out. The following weekend Abbey packed up the rest of Heath’s stuff, including his dad’s old clothes, and dropped it off out the front of Heath’s mum’s house.
Abbey said she did not see the applicant again until about three to four weeks after Heath had left the house. She said she started seeing the applicant about a week before the night she saw Heath in the Geelong CBD. The applicant had been staying at Fagg Street with her. That night, Abbey went out with the applicant and her friends Jade, Jackson, Crystal and Austin. Another friend came up to her while she was with the applicant and told her that Heath was in town at St James Nightclub and that he wanted to speak to her. The applicant was annoyed that Heath wanted to see her. He walked off. Abbey denied that Heath had contacted her by phone and said that she and Heath happened to cross paths as she was leaving a nightclub. They spoke for about an hour, but Abbey was drunk so she couldn’t remember exactly how long they spoke. Heath became emotional, and they were getting to an understanding. The applicant and Abbey’s friends then walked towards them. She had no recollection of Heath saying anything to her as they approached, or of him saying anything to the applicant. Someone said something and then a fight started. She didn’t see who threw the first punch. Abbey’s friend Jackson tried to break it up. Abbey couldn’t see much of the fight. She was standing behind Heath. She heard the applicant headbutt Heath. She was screaming at both of them to stop. The fight went for twenty minutes. Heath walked off and she remained with the applicant.
After the fight, Abbey said she called Heath a bunch of times to see if he was alright, but he didn’t answer. He eventually started messaging. Abbey was shown a series of messages sent to her by Heath on the Sunday night, which included a message in which Heath said, ‘I’m getting my shit tomorrow’. She did not recall the messages. She said that all of Heath’s belongings were out of the house before then so there was no need for him to collect anything.
Abbey said that she was working in Colac from about 6.00 am to about 2.30 pm the next day. It took her about an hour to drive to work. She spoke to Heath in the car. She sent Heath a message that morning agreeing to meet him somewhere after she finished work. They were going to talk about everything that had happened and get closure for both of them. She arranged to meet Heath in the car park at Anaconda in Geelong. She denied sending messages to Heath telling him that her dad was at the Fagg Street address, but said she thought she had sent messages to him telling him not to meet her there. She said the applicant was at Fagg Street that day.
Abbey said she told the applicant that day that she was going to meet up with Heath that afternoon. He was annoyed and said there was no need for her to talk to him. He said that if she met up with Heath then he wouldn’t be at home when she got back.
Abbey said that Dylan called her that day when she was on her lunch break. He asked her about what had happened on Saturday night. They spoke for 15 minutes or less. Dylan said to her that the applicant was ‘gone’ and that he was ‘coming after him’. She took this threat seriously. She contacted the applicant very soon after this and told him about it. The applicant was silent and then said something like, ‘oh let them come’. She and the applicant also exchanged messages during her lunch hour. The applicant told her that he was talking to Dylan, who was asking for his side of the story. The applicant then sent her screenshots of his messages with Dylan, which included messages in which the applicant criticised the way Heath had treated Abbey.
After she left work that day, Abbey went to her friend Jade’s house on the way back to Geelong. She was on the phone to Heath when she got to Jade’s house. Heath gave her an ultimatum. He told her to pick a spot to meet him or they would go to the house at Fagg Street ‘to get [the applicant]’. She and Jade drove to Anaconda. The applicant called Jade’s phone while Abbey was driving and asked Abbey why she was meeting up with Heath. The applicant sounded calm. He said that he wouldn’t be there when she got back and hung up. When they got to Anaconda, she and Jade sat in the car park waiting for Heath, but he didn’t arrive. Jade said to Abbey that it felt like a set-up. The applicant called again and asked where she was. She told him she was at Anaconda waiting for Heath and Dylan to show up. She messaged Heath, asking where he was. The applicant then called her a third time and she heard his sister Melissa in the background yelling out, ‘they’re here’. It sounded like Melissa was outside the house. Abbey said she had spoken to Melissa earlier, who had told her that she was at the house dropping something off to the applicant. Abbey hung up the phone and raced to Fagg Street.
Abbey said that when they got to Fagg Street, Heath’s car was on the side of the road. Melissa was driving out and cut her off. Melissa jumped out of the car and said to her, ‘They’ve both been stabbed’. Abbey didn’t see the applicant’s mother. At the house, she saw Heath lying on the ground out the back. She went into the house and saw Dylan lying face down in a big pile of blood. She tried to wake him up but there was no response. Jade called the ambulance.
When shown photos of Fagg Street taken by the police, Abbey said that there was a hole in the wall that was not there when she left that morning, and the chest freezer looked like it had been banged through the wall.
Jade Angus
Jade Angus gave evidence that she and Abbey Sexton were good friends in 2021. She said that she had known Abbey for seven years at that point, and she had known Heath for about two years. Abbey and Heath had broken up around early April. Abbey and the applicant started going out together in the same month, maybe after Easter.
Jade said that her partner at that time was Jackson Marshall. There was a Saturday night when she and Jackson went out in the Geelong CBD with Abbey, the applicant and other friends. They went to a nightclub. Jade left the nightclub at ‘like 2.30 in the morning’. The applicant had already gone to McDonald’s. As Jade was heading up Moorabool Street, she heard Abbey’s voice. Abbey and Heath were yelling at each other, so Jade sat across the street about five metres away from them. At some point, the applicant approached Abbey and Heath. By this point Heath was standing up. Heath and the applicant spoke to each other, but Jade could not remember what they said. Then Heath threw a punch and they were fighting. The fight didn’t last long. It was over in ‘like 30 seconds’. The applicant was pushing Heath off and they were pushing each other. The fight ended when Heath walked off. Abbey stayed with the applicant. After this, Jade went back to Fagg Street. She and Jackson stayed there that night with Abbey and the applicant. They were also there the following day.
Jade said that on Monday, Abbey came to her house after work. Jade’s home was about 20 minutes from Geelong. Jade overheard Abbey and Heath on the phone. They were talking about needing to have a conversation. Jade heard Heath threaten Abbey that if she didn’t meet him and Dylan, they would go to get the applicant. Abbey arranged to meet them at the car park at Anaconda. Jade said she and Abbey then immediately headed off to Anaconda. It was a stressful drive, with multiple calls coming in on multiple phones. Jade said she was concerned about the possibility of Heath and Dylan going to Fagg Street. The applicant called and they put him on loudspeaker. The applicant said that he was at Abbey’s house. Abbey told the applicant that they were going to meet Heath at Anaconda. The applicant said, ‘If you go, this is done’. Abbey was crying.
When Heath and Dylan didn’t show up at Anaconda, Jade said she told Abbey that she was worried that the meet up at Anaconda might be a set-up. She and Abbey called the applicant while they were waiting at the car park. The applicant asked if Heath and Dylan ‘were there at Anaconda’ and Jade said, ‘no’. They then asked him if they were at Fagg Street, and he said, ‘no’. Then it went quiet and the applicant said, ‘they’re here’, and the phone call ended. Jade said she didn’t hear any other voice in the phone call. She and Abbey then left Anaconda and went straight to Fagg Street. It took them about eight minutes to get there. Jade saw Heath’s car parked on the street and Melissa leaving in another car. They got out of their car and ran to the house. She saw Heath lying bleeding on the concrete not far from the sliding door. She called an ambulance. Jade said that she did not see Dylan, the applicant or the applicant’s mother.
Melissa Feetham
Melissa Feetham gave evidence that the applicant was living with her in early 2021. She said she came to know Abbey about a month before the fatal incident. Abbey and the applicant were seeing each other. Abbey had also been at a gathering at their house in early 2021. Heath was also at this gathering, and it was the first time Melissa had met him.
Melissa said she was aware of an incident that had occurred on the night of Saturday 24 April 2021. She said the applicant had told her about it on the Sunday afternoon. In the lead up to this incident, the applicant had been staying at Abbey’s some nights. Melissa said he stayed at Abbey’s on the night of that incident, and on the Sunday night.
On Monday 26 April 2021, Melissa said she exchanged a series of messages with the applicant when she was on her way home with her children. The applicant told her that Heath and his brother were coming to Abbey’s to get him. He asked her to bring ‘a hammer or something’, to which Melissa responded that she was on her way. The applicant then replied, ‘I got one’. Melissa asked him where ‘Jacko’ was, meaning the applicant’s friend Jackson Marshall. The applicant told her Jackson was ‘at work’. Melissa asked the applicant, ‘Are they there’, to which he replied, ‘Nah’. She then said, ‘Roll me a smoke’. She said she sent this last message because she didn’t think that Heath and his brother would turn up and so she was going to stop and have a smoke with the applicant before they went home.
Melissa said that at some point around this time, she rang Abbey and asked her if she knew what was going on. Abbey said, ‘yes, and that she had to be, she was directed to go somewhere to meet them’. Melissa told Abbey that she was going to go to the Fagg Street house. She said she did not tell Abbey that the applicant had asked her for a hammer, or that she was taking anything to the applicant. She said that she was worried and wanted to go over there to make sure the applicant was going to be okay. She also rang her mother, who was already on her way to Fagg Street because she was taking the applicant to Melissa’s home for a shower. She said she told her mum what the applicant had said to her.
Melissa said that when she got to Fagg Street, she saw that her mum was already there in her car. Her mum had parked on the nature strip out the front of the house and was in the car with her dog. Melissa parked on the road next to her mum and they then talked to each other through the car windows. The applicant was on the front porch next to the security door of the house. He waved at her from the porch as she arrived. No more than five minutes later, another car arrived. Heath was driving and a person who Melissa believed to be Heath’s brother was also in the car. The applicant was still on the porch and having a smoke. He was on the phone, but Melissa didn’t know who he was talking to. Melissa said to him, ‘that’s Heath’. The applicant flicked his smoke, walked inside and locked the security door.
Melissa said that she saw Heath drive past the house and do a U-turn before parking the car behind her car, a few houses down on Fagg Street. He stayed there for a couple of minutes before taking off again. She said that he drove back past the house and turned left at the end of the street. Less than a minute later, Heath and the other person came walking around the corner. Melissa’s mother got out of her car, as did Melissa. Melissa said, ‘What’s going on boys’, but they kept walking and did not say anything to her. She said she did not see any weapon. Dylan went straight to the front door and Heath went to the side sliding door. Melissa stood in the front yard where she could see both of them. Her mother was behind her on the footpath.
Melissa said she then saw Heath break in through the side sliding door. He pushed the door up and kicked the bottom right of the door to get it open. He was able to slide it back. She said that he didn’t say anything. He went through the door and she could no longer see him. Dylan was at the corner of the house, watching the front door. He then started walking towards the sliding door. She tried to get in his way and said, ‘let them go one on one’, to which he said, ‘No, he wants to lip off’. Melissa said she could hear ‘what sounded like a scuffle and dining chairs being [slid] across the floor’. She was blocking Dylan from getting in and keeping her eyes on him. About 30 seconds later, Dylan barged past her and went in. She said she grabbed the closest thing to her, which was a metal rake on the grass near the porch, and ran in.
Melissa said that when she entered the house, she could see Heath to her right with his back to her. He was standing at the dining table. She then saw that Dylan had the applicant up against the wall opposite the sliding door and the fridge. Heath was just standing there and not doing or saying anything. She said she started screaming, ‘get off him, get off him’. The applicant pushed himself back off the wall. She had the rake in her left hand and her ‘arm up chest level with Heath’ so that if he went to get past she could grab his shirt and push him back. There were punches between Dylan and the applicant that went for about a minute or so. Heath grabbed the rake with his right hand. She turned and faced Heath and screamed at him to give it back, which he did. She said that there was no struggle. Her attention was on Heath for a couple of seconds, while the applicant and Dylan were still fighting.
Melissa said she then heard a deep grunting sound. She was facing Heath and she turned around and saw the applicant bent at a 90 degree angle, holding his left hand with his right hand and looking at his hands. There was blood everywhere. It was on the applicant’s hands and on the floor in front of him. She said Dylan was standing in front of the applicant, watching him. He was in front of the freezer. That was when she saw that Dylan had a knife in his right hand. Nobody was exchanging any words and then all of a sudden she screamed the applicant’s name as Dylan lifted his right hand and went to go hit the applicant. She said the applicant put his head up and, while still holding his hand, used his right shoulder to push Dylan back into the freezer and wall. The applicant then backed off, still holding his hand. Dylan then had his back to Melissa. She said she could see the bottom of the knife in his right hand. He was trying to hit the applicant, and the applicant was backing into a room behind them. She said the applicant had his head down and Dylan was still going. The applicant wasn’t hitting back, and was just covering his head. Then all of a sudden Dylan backed off and moved back to where he had been. The applicant came out and Melissa was side by side with him. Dylan and Heath were side by side. Dylan stepped a couple of steps forward. She was screaming, ‘get out, get out’. Dylan stepped towards the applicant and she stepped in front of him, still screaming.
At this point, something didn’t look right to Melissa. She said she was looking at Dylan and his eyes looked different. She knew something was seriously wrong. She said that Dylan then took a couple of steps back and slid down to his knees. She screamed at the applicant to get out. She said her thinking was that she had to get back to her kids, so she stepped out the sliding door. Heath asked her for help, but she said sorry and went out to the footpath. She saw her mother helping the applicant get into the car. She put the rake in the car and got in. She had blood all over her. She started the car and got to the end of the street, where she saw Abbey coming down the opposite street. She pulled over, jumped out of the car and told Abbey that an ambulance was on the way and that she should go in and help Heath and Dylan. She then drove off and caught up to her mum. She watched her mum pull into the emergency entrance at the hospital.
Melissa said that she didn’t use the rake at any point in time.
Lorraine Foreman
Lorraine Foreman gave evidence that in early 2021, the applicant and Melissa were living together in a house on Slevin Street in Geelong.
Lorraine said she came to know Abbey about six weeks prior to the incident. Abbey had started visiting the applicant at Slevin Street on a daily basis. Lorraine did not know Heath but had heard his name.
On the afternoon of Monday 26 April 2021, Lorraine said she went to Abbey’s house at Fagg Street to pick the applicant up and take him back to Melissa’s to have a shower. Melissa had called her and asked her to pick the applicant up because Melissa had to pick her children up from school. Melissa had also told her that a couple of the ‘Bond boys’ were giving the applicant some grief and to ‘just be aware’.
Lorraine said she got to Fagg Street just before 3.00 pm. She didn’t take anything with her. She had her dog in the car with her, as well as a rake that she had put in the car about four days earlier. It had been on the back seat but she put it in the front seat because the dog was barking at it.
When Lorraine got to Fagg Street, she said she drove past the house, did a U-turn and parked on the nature strip. She stayed sitting in her car. She saw the applicant come out the front door and sit on the front seat on the verandah. He was on the phone. Lorraine put the car window down and told the applicant she was there to pick him up. He acknowledged that she was there and flapped his hand at her. He was still talking on his mobile, sitting on the chair. She said she could not hear the other voice on the phone. Less than 10 minutes after Lorraine had arrived, Melissa turned up in her car with her children and stopped next to Lorraine’s car.
Lorraine said she spoke briefly to Melissa and her grandchildren while they remained in their cars. The applicant was still on his phone, sitting on the front verandah. Lorraine said she and Melissa were just chit-chatting. By this time, it was a good 15 minutes after Lorraine had arrived.
Lorraine then heard Melissa say, ‘here they are’. A dark grey car zoomed into Fagg Street. It went past really slow, went up to the far corner of the street, did a U-turn, stopped two houses down behind Lorraine’s car and parked on the road. Lorraine saw two men in the front of the car. Melissa told her that Heath was the driver and that the other tall guy in the car must be his brother.
Lorraine said the car was in that location for about three minutes. During that time, the applicant remained sitting on the verandah on the phone. He was having a cigarette. The car then drove past slowly. Lorraine yelled out to the applicant, ‘Get inside and lock the door’, which he did. Lorraine did not remember if he was still on the phone when he went inside, but she recalled hearing him lock the door.
Not long after this, Lorraine said she got out of her car and put the rake over the fence near the letterbox. She said she did this because the applicant had wanted a rake the week before but she hadn’t had time to drop it off. She then saw the two men walking from the end of Fagg Street. This was a couple of minutes after they had driven off.
Lorraine said Melissa then got out of her car and locked it. She could not recall if Melissa said anything to the men. Lorraine said to the tall one, ‘What do you think you’re gonna, what do you think you’re gonna do?’. He didn’t reply. He just walked past and stood on the front lawn, about two metres from the front door. The other male did not speak at all.
Lorraine said she then saw the shorter man go to the side of the house and try to slide the sliding door open. He could not initially get it open but then he kicked the bottom of the door with his shoe to get it off the rail. After sliding the door back, he said, ‘I’m in, let’s get him’. This was the last Lorraine saw of him.
Lorraine said that at this point, she was at the letterbox and Melissa was still standing by her car. She said she did not see Melissa on the property in between the two men at any point. After the shorter man yelled, ‘I’m in, let’s get him,’ the taller male ran to the sliding door and went inside.
Lorraine said she couldn’t see inside the house from where she was standing. She screamed for Melissa. Melissa went inside through the sliding door about 30 to 40 seconds after the taller man. Melissa grabbed the rake and took it with her. Lorraine said she heard grunting coming from the house. She heard furniture being pushed around and the sounds of a scuffle. She heard Melissa saying, ‘Get off him, get the fuck off him.’ Melissa screamed and then the applicant came out the front door.
By this time, Lorraine had got back to her car. She opened the car door for the applicant to get in. Blood was pouring out of his hand. His shirt was ripped and there was blood all over him. Less than a minute after he came out of the house, Melissa also came out. Melissa had the rake in her hand and she put it in the boot of her car. Lorraine saw the two guys at the back sliding door. The shorter one was trying to drag the other one out. The shorter one yelled out, ‘fuck’. Lorraine rang Triple 0 and said there had been a home invasion and a brawl. She also told the operator that the applicant had ‘tried to take the knife off’ one of the guys that broke into the house. She then drove the applicant to Geelong Hospital.
First responder evidence
Sergeant James Fitzgerald gave evidence that he had received a call to attend a stabbing at Fagg Street at approximately 3.50 pm on the day of the fatal incident. He and his colleague arrived at Fagg Street about three minutes later. He observed a person he now knows to be Dylan lying face down in the kitchen area inside the premises, soaked in blood. Sergeant Fitzgerald and his colleague dragged Dylan outside the house and administered CPR until paramedics arrived. After attending to his duties in managing the scene, Sergeant Fitzgerald turned his attention to Heath, who was in a lot of pain and seemed to be going in and out of consciousness. Heath had blood on his torso area. Sergeant Fitzgerald called for a second ambulance, which arrived about 15 minutes later and took Heath to hospital. Although paramedics continued to work on Dylan, he was pronounced dead about 25 minutes after Sergeant Fitzgerald arrived. He had not resumed consciousness at any point. At some point Sergeant Fitzgerald was told that the applicant had presented at Geelong Hospital with wounds to his hand. He tasked a unit to attend at the hospital and arrest the applicant.
Hernando Callejas gave evidence that he is a paramedic and that he had received a call to attend Fagg Street at 3.47 pm on the day of the fatal incident. He arrived at Fagg Street at 3.57 pm. He was in the first ambulance crew to arrive. He observed two wounds on Dylan, one on the left side of his chest and one on the left side of his groin. Dylan was not responsive. After various treatments and procedures, Dylan was declared dead at 4.25 pm.
Ricky Commerford, another paramedic, gave evidence that he arrived at Fagg Street at 4.02 pm on the day of the fatal incident, in a different ambulance crew to Mr Callejas. On arrival at the scene, Mr Commerford attended to Heath. Heath was lying flat on his back with his eyes closed. Mr Commerford deemed him alter-conscious. There was a penetrating stab wound on the left side of Heath’s chest. Heath was taken to hospital by ambulance, arriving at 4.17 pm.
Sergeant Peter Cox gave evidence that he is a crime scene officer and that he attended the Fagg Street address with two other crime scene officers at around 7.25 pm on the day of the fatal incident. They photographed and made a video recording of the scene, and collected items from the scene. The video and photographs were tendered, as was a knife that was located in the kitchen. The photographs depicted the knife on the kitchen floor with bloodstaining on it. The blade of the knife was 19.5 cm long and the total length was 31 cm. The photographs also depicted Dylan lying on the ground outside the premises, with bloodstains across his body. They showed a freezer that had been ‘impacted into the wall’ and blood spatter in the meals area, laundry, and the floor between the kitchen and lounge room. There was extensive bloodstaining in front of the sliding door at the side of the house and a blood trail from the front doorstep to the footpath. No hammer was found at the scene, although the crime scene officers were not tasked to look for a hammer or similar tool. In cross-examination, Sergeant Cox agreed that the photos depicted a heavy looking metallic ratchet sitting on a piece of furniture.
Informant
The informant, Detective Senior Constable Brendon Stack, was attached to the Homicide Squad in 2021. He gave evidence about the investigation of the applicant, including three conversations between police and the applicant at the hospital in the hours after the fatal incident.
The first of these occurred at 5.41 pm. In this conversation, the applicant told police that he had been at home and that he received a phone call from Abbey, telling him that ‘they never showed up for the meeting’. He said that Heath and a guy who could be Heath’s brother broke into the house. They came in through the back door, which was locked. One of them ran in and they then ran at each other. The other one then ran in and jumped on top of the applicant. The applicant said he was fighting back. Both men were over him. One of them walked over to the bench, grabbed a knife and came back at the applicant. The applicant then rushed him and grabbed the knife with his left hand. They wrestled over the knife. The applicant said he got the knife and started swinging it around. Everything stopped. One of the guys collapsed. The applicant went out the front of the house, where his mother told him to get in the car and go to hospital.
At one point in this conversation, the applicant said to police, ‘I didn’t see any other way to avoid it. When two guys break into your house, what do you do’.
The second conversation with police occurred at 7.20 pm. In this conversation, the applicant told police that he had got together with Abbey three days ago. He said she had broken up with Heath about a month to a month and a half ago.
The applicant gave a further account of the events at Fagg Street that afternoon. He said that he had been watching a movie after lunch. He got a phone call from Abbey saying that she was meeting up with her ex-partner to have a chat. The applicant said he arranged for his mum to come and pick him up because he was going to go home for the night. The next thing he knew, Heath and the person he now knew to be Heath’s brother, Dylan, rocked up. Melissa had yelled at him when she had seen one of them go through the gate. They had a small conversation with Melissa out the front. The applicant said his sister was there because she had found out that ‘they’ were talking about coming around. ‘They’ were saying that if Abbey didn’t meet up with them they were going to come around to Abbey’s house ‘to kick the fuck out of [the applicant]’. ‘They’ had agreed to meet up at Anaconda to speak to Abbey and Abbey called the applicant and his sister when they didn’t show up.
The applicant told police that he had locked the doors but Heath came in through the back door. It was a sliding door that could just be lifted up even when it was locked. He said they ran at each other and started punching on. It was one on one. Heath got a good hit in and knocked the applicant into the coffee table. Then ‘the other one’ came in and started laying into the applicant as well. There were a couple of punches thrown. The applicant threw punches back. While Heath was still punching the applicant, the other one walked to the bench and grabbed a knife. The applicant said he wrestled with him for the knife for a little bit and then got it less than two seconds later. That’s when he injured his hand, although he didn’t know that had happened at the time. He thought the other one was going to stab him. The applicant just started swinging the knife. He didn’t know that he had got anybody with it.
When asked by police what his intent was when he was swinging the knife, the applicant said that he had no idea. He said that in the heat of the moment, he ‘just wanted to – to get the fuck out of there’. He said he was copping punches the whole time. At one point he was looking at the fridge and the next minute he was looking at the sink. He said had ‘no idea what the fuck was going on’. Then, after two seconds of having the knife, everything stopped. ‘The other one’ stood there, looked at him and then collapsed. This was in the dining room. Heath then asked the applicant to call an ambulance. Heath seemed fine. The applicant looked at his hand and realised he needed an ambulance too. His sister was in the middle of all this somewhere. She had come running in the back door. His mum was out the front.
The third conversation with police occurred at 9.01 pm. In this conversation, the applicant said that when he got control of the knife, he was trying to ‘just stop it all’. He said that he thought he was going to die. He said they weren’t stopping and the punches just kept coming. When police told the applicant that both the other men had stab wounds rather than slash wounds, and asked him to clarify his understanding of how he used the knife, the applicant said, ‘so Heath’s been stabbed too?’. The applicant said he did not remember much of what had happened. He said he remembered ‘the summary of it basically’, ‘just holding a knife’ and ‘him collapsing’. He said he didn’t remember using the knife in any way other than flailing it around. He said he was right-handed and would have held the knife in his right hand. He said he had no idea what had happened to the knife.
The informant also gave evidence about a formal interview with the applicant, which was conducted on Thursday 29 April 2021.
In this interview, the applicant said that he and Heath had a ‘thing’ over the weekend and Heath wanted to have round two. He said that Heath and Dylan didn’t tell him that they were coming to the house, but they had told Abbey they were. He said he ‘was prepared for that’.
The applicant gave an account of the events in the house at Fagg Street that was broadly consistent with his previous accounts. He said that when he saw Dylan with the knife, he didn’t think to try and get away because his sister was there in the house too and he was worried about her. He said that Heath and Dylan were fitter and faster than him. He said he didn’t know what had happened after he got the knife and that the entire incident from when he grabbed the knife to when Dylan collapsed was ‘a blur’ to him. He said he got knocked around a fair bit and the next thing he remembered, he was standing across from Dylan, who then collapsed. His sister was standing beside him. He looked at his hand and felt something wrong with it, before walking out the front door.
When asked about the events in the Geelong CBD on the weekend before the fatal incident, the applicant said he was drunk that night, having had about 11 or 12 drinks. He said he had let Heath and Abbey talk for about an hour and a half, while he sat near McDonald’s. During this time, he was talking to Jade and Jackson on the phone, asking them what was going on. Abbey wasn’t answering his calls. Then he walked to where Abbey and Heath were to see if Abbey was alright. Heath stood up and accused him and Abbey of cheating behind his back while they were together. The applicant said, ‘maybe you should learn how to treat women’, and referred to degrading names that Heath had used for Abbey. Heath went to attack the applicant so they had a punch on. After someone broke them up, Abbey and Heath talked a little bit and then Heath walked off. Heath then came back and tried to shake the applicant’s hand but the applicant didn’t want to. Heath wanted to talk but the applicant told him to fuck off. The applicant said he thought that was the end of that, but that Heath’s brother wanted to get retaliation.
When asked about the events earlier on the day of the fatal incident, the applicant said that Abbey had called him after lunchtime and told him that Heath’s brother had called her. Abbey told him that Heath’s brother said he wanted to come after the applicant. Abbey was screaming at the applicant and telling him that he should be worried. He said that Abbey was ‘saying that I should be scared. But I’m not the type of person to be scared’. He later said that he didn’t think Abbey said that he should be scared, but she implied it.
The applicant said that after this call, he sat and watched TV for a bit in the lounge room at Fagg Street. He got Heath’s brother’s name from Jade. He then messaged Dylan, having found him on Facebook. When asked why he messaged Dylan, the applicant said he had no idea. He then said, ‘I – I knew that he wanted to come after me and I didn’t wanna get surprised’.
The applicant said that he and Dylan messaged for a little while. He said that he couldn’t remember all the messages they exchanged, but that Dylan was asking him questions about what had happened on Saturday and for his side of the story, which the applicant told him.
The applicant said that his messages with Dylan were pretty civil but then, out of nowhere, it turned. Dylan told the applicant that he didn’t believe him, that he was taking his brother’s side, and that he had the applicant’s address. Dylan didn’t say he was going to come over, but the applicant said he implied that he would. The applicant told Dylan that there were children at the house and that he wasn’t even there. He said that he wanted to de-escalate the situation. He told Dylan that he was at Abbey’s.
The applicant said that Abbey called him when she was with Jade. She said that they were going to Anaconda to meet up with Heath and Dylan. The applicant said he asked Abbey not to go. Abbey told the applicant that if she didn’t go to Anaconda, Dylan said that they would go to the house to get him. The applicant said that this was when he messaged his sister and told her what was happening. When asked what he said in his message to his sister, the applicant said he told her that they were coming. He then said he didn’t remember much of that day at all and that he seemed to forget a lot of it.
The applicant said that he was on the phone to Jade on loudspeaker while Jade and Abbey were on their way to Anaconda, when his sister rocked up at Fagg Street, followed by his mum. He said that his mum must have known what was going on from his sister. He said he walked out the front door to have a smoke. He sat on the chair outside, talking on the phone to Abbey and Jade, while his mum and sister talked to each other. When Abbey and Jade got to Anaconda, they told him that Heath and Dylan weren’t there. The applicant said that his sister then yelled at him to get in the house because Heath had driven past with Dylan in the car. He said he hung up the phone to Abbey, got in the house and locked the doors.
The applicant said he watched Heath and Dylan walk into the driveway from the house. He said he was scared. There were two of them. He was not sure what to think. His mum yelled out his sister’s name and he heard his sister running up. She said to Heath and Dylan, ‘What are youse doing?’. Dylan said something about the applicant talking shit and said they were here to ‘kick the fuck out of [the applicant]’. The applicant said that, after this, he thought that he ‘needed to get into the right mindset’. When asked what that would be, he said, ‘I’ve gotta take on two guys’ and that ‘You can’t be calm and take on two guys’. He said that he ‘hyped’ himself up and got himself ‘ready for it’.
In addition to his evidence about the conversations and interview between police and the applicant, the informant also gave evidence about items that were obtained during the investigation, including various phones. In cross-examination, the informant was asked about messages on Dylan’s phone from the day of the fatal incident. He agreed that Dylan had exchanged messages with a person called ‘Ashleigh Maree’. Ashleigh Maree said, ‘Address is 51 Slevin Street. Has told me before. I just found out’. In response, Dylan asked Ashleigh Maree, ‘Does he live with anyone’, to which she responded, ‘His sister and her kid/s, I think’. Dylan’s response was, ‘Ah fuck’. The informant also agreed that Dylan had exchanged messages with his mother around the same time, in which he said he was ‘getting his address now’. Shortly after this, Dylan had sent his mother a message saying, ‘I just rang the fat cunt’, which the informant agreed, based on the chronology, was a reference to Abbey. After that, Dylan messaged his mother about that call, saying, ‘I said, you know, this is where I get involved’.
The informant was also cross-examined about notes that he and Detective Senior Constable O’Brien had made of a conversation they had had with Heath at Geelong Hospital on the night of the fatal incident, which contained Heath’s first account of events to police. The notes recorded that Heath told police:
(a)‘We went there to get straight answers from him’;
(b)‘He said he was at my old house so we went there for answers. I know how to get in’;
(c)‘I was frustrated he was in my old house. Abbey has lied to me a bit … Abbey told me she’d never put him there. I just wanted answers’;
(d)‘Didn’t go to the front door, knew it would be locked’;
(e)‘I opened the sliding door and took one step inside, about halfway opened it. I took two steps in, that’s when [the applicant] came from lounge room with knife’; and
(f)the event lasted ‘40 to 50 seconds maybe. [The applicant] had full control of it … we never had full control’.
The informant agreed that at no stage in the conversation with Heath had Heath ever said that one of the reasons he and Dylan went to Fagg Street that day was to collect property. He also gave evidence that he spoken to the neighbours at Fagg Street, who were also cross-examined at a preliminary hearing, none of whom had heard the word ‘knife’ being shouted on the day of the fatal incident.
Dr Nitin Prakash
Dr Prakash conducted a forensic examination of the applicant’s injuries at Geelong Hospital at 11.05 pm on the day of the fatal incident. Dr Prakash recorded that the applicant had areas of abrasion and bruising, as well as incised wounds over the third, fourth and fifth fingers on the palmar aspect of his left hand. Dr Prakash expressed the opinion that the incised wounds to the applicant’s hand were caused by a sharp cutting force such as a blade.
Dr Sarah Parsons
Dr Sarah Parsons gave evidence that she is a forensic pathologist at the Victorian Institute of Forensic Medicine. She performed an autopsy on Dylan at 10.00 am on Tuesday 27 April 2021.
Dr Parsons said that Dylan was 92 kg at the time of the autopsy and approximately 186 cm tall. His cause of death was stab wounds to the chest.
Dr Parsons found multiple injuries during the autopsy, including four stab wounds. The fatal stab wound was to the left lateral chest. It was at an angle inwards towards the chest, going from the front of the chest to the back. It also extended downwards, in the sense that the injury was in a downward position from where the knife had entered the skin. The fatal wound cut through Dylan’s fifth rib, went through one portion of the lung, extended through the pericardium and into the heart, penetrated the diaphragm and ended in the liver. The wound tract was approximately 14 cm in length.
Dr Parsons said that the other stab wounds entered soft tissue and muscle only. There was a stab wound on the left hip, which extended into the left gluteus maximus and had a wound tract of approximately 14 cm; a stab wound which extended to the latissimus dorsi, the large muscle on the back, which had a wound tract of 12 cm; and a through and through sharp force injury to the buccal mucosa, which is the inside of the lip. The trajectory of the implement that caused the first of these wounds was straight in from the front to the back of the body. The wound went into the abdominal cavity and straight through the soft tissue into the large muscle of the buttock. The trajectory of the implement causing the second wound was through the skin on the left side of the torso, glancing around the rib cage before going into the latissimus dorsi on a slightly upward angle.
Dylan’s other major injuries were bilateral hemopneumothoraces, which is a collection of blood and gas within the spaces between the chest cavity and the lungs; a pulmonary haemorrhage and collapse; and 80 ml of hemopericardium, which is blood around the heart. The autopsy also identified various bruising and superficial abrasions to Dylan’s body.
Dr Parsons said that the description of the mechanism by which the fatal stab wound was inflicted that had been given by Heath was consistent with the observed wound tract. She said that it was a possible mechanism for the injury, as was Melissa’s account of how the fatal injury was inflicted. Dr Parsons could not say that either one of the scenarios was more consistent with Dylan’s injuries than the other. Neither of the two descriptions of the mechanism of the fatal injury was a straightforward stab to the chest. Neither could be excluded as a possible cause.
Dr Parsons said that her observations were based on an assessment of the body in a static state. She was unable to comment on the biomechanics of the injuries. The actual angle of a knife when it entered a moving body was difficult to tell. It would depend on things like the posture of the body at the time the wound was inflicted. In a dynamic fight, muscles can also contract.
Dr Parsons was also unable to comment on the order in which the injuries were inflicted. She was unable to say whether the penetration was caused as a result of the movement of the penetrating implement alone, or as a result of the movement of Dylan’s body alone. It was possible that both were moving when the wound was inflicted. There were also too many variables for her to give an accurate opinion about the force required to cause a penetrating injury other than to say that if a knife went through skin, it required a certain amount of force, and that if it went through a bone, such as a rib, it required more force.
Dr Parsons said that after the fatal stab wound was inflicted, Dylan would only have been able to stand and speak for a period of minutes. Air and blood would have filled his chest. His lungs would have collapsed. His organs would have been pushed across and this would have caused him difficulty in talking, then in breathing, before there was a complete collapse of his circulation. He would only have survived for five to 10 minutes after the infliction of the fatal injury.
Dr Maria Nittis
Dr Maria Nittis gave evidence that in 2021 she was a forensic physician employed by the Victorian Institute of Forensic Medicine. Dr Nittis’s evidence covered two topics: Heath’s injuries and the injuries to the applicant’s hand.
In relation to Heath’s injuries, based on her review of Heath’s medical file, Dr Nittis said that if Heath had not received treatment, it was almost certain that he would not have survived. There was an injury to two segments of his liver; an injury to his left chest wall; a penetrating injury to his left diaphragm; a through and through injury to the front of his stomach; and a penetrating injury to his gall bladder. Heath required surgery, after which he was transferred to the intensive care unit. Heath’s injuries would not necessarily have immediately rendered him unconscious. It would have been possible for him to have remained standing for a period of time.
In relation to the injuries to the applicant’s left hand, Dr Nittis was given photos of the applicant’s injuries and the knife and asked to comment on three hypotheses. The first was that the injuries were self-inflicted. The second was that the injuries occurred while the applicant was holding the knife, assuming the progress of the knife had been halted by contact with a surface, causing the hand to follow through across the blade. The third hypothesis was that the injuries occurred when the applicant grabbed the knife while it was held by another person. Dr Nittis’s opinion was that the first of the three hypotheses was the least likely. She said that the other two hypotheses were both possible.
Closing addresses
The prosecutor commenced his closing address as follows:
In simple terms, the Crown case is that you can accept Heath Bond’s account of what took place in the meals area of the house and you can reject the accounts of both [the applicant], and his sister … This is because Heath Bond explains how he and Dylan sustained their injuries. He explains the circumstances in which he was stabbed once and he explains the circumstances in which Dylan was stabbed multiple times. The [applicant] does not.
The respondent submits that there was no error in the impugned directions and that, in the alternative, if there was such error, it did not give rise to a substantial miscarriage of justice.
The respondent’s primary submission is that the trial judge complied with the obligation in s 63(1), which requires no more than that an explanation of the phrase ‘proof beyond reasonable doubt’ be given. No particular explanation is prescribed, and a judge has the option of including any one or more of the matters in s 64(1). The respondent submits that s 64(1) was presumably enacted because the legislature thought it necessary to address the fact that there had been a series of High Court decisions indicating that the phrase ‘beyond reasonable doubt’ could not be explained at all. In those circumstances, it may have wished to make ‘crystal clear’ that there were various possibilities about the type of explanation that could be given. However, the result of s 64(1) was that a judge could give none or all of the types of explanations within it, because compliance with s 63(1) required only an explanation to be given.
The respondent submits that the impugned directions contained an explanation of the phrase ‘proof beyond reasonable doubt’. The trial judge referred to the matters identified in s 64(1)(a) — the presumption of innocence and the burden of proof. He told the jury that ‘beyond reasonable doubt’ was the highest standard known in our law. And he said that the words ‘beyond reasonable doubt’ were plain ordinary English words that meant what they said.
The respondent’s alternative submission is that even if the Court finds that the impugned directions were inadequate, there was nonetheless no substantial miscarriage of justice. The respondent concedes that if the impugned directions did not constitute an explanation of the phrase ‘proof beyond reasonable doubt’, there were no good reasons in the circumstances of this case for the judge to have not given the jury such an explanation, or to have delayed the giving of the explanation.[29] However, in support of the submission that any error or irregularity in the impugned directions did not result in a substantial miscarriage of justice, the respondent relies on the expanded explanation of the phrase ‘proof beyond reasonable doubt’ that was given in the judge’s charge, as well as the modified Liberato direction and the direction on inferences. The respondent submits that those directions illuminated the meaning of ‘proof beyond reasonable doubt’ to the jury and were given in a way that was relevant to the trial, such that the jury could not misapprehend the correct way to approach their task. The respondent submits that in light of these directions, the jury had the benefit of an explanation of their task that was geared ‘precisely to the subject matter of this case’.
Consideration
[29]See Jury Directions Act 2015, ss 63(1)–(4).
The starting point is whether the impugned directions contained an explanation of the phrase ‘proof beyond reasonable doubt’ for the purpose of s 63(1) of the Jury Directions Act 2015. If they did, it is then necessary to consider whether they were nonetheless non-compliant with ss 63 and 64. For the following reasons, we consider that the impugned directions contained an explanation of the phrase ‘proof beyond reasonable doubt’ for the purpose of s 63(1) and were not otherwise contrary to ss 63 and 64.
The terms of ss 63(1) and (2) are clear — a trial judge must now give the jury an explanation of the phrase ‘proof beyond reasonable doubt’ before any evidence is adduced in the trial, unless there are good reasons for not doing so. The trial judge can also, pursuant to s 63(5), give the jury ‘the explanation’ in response to a direct question from the jury about the meaning of the phrase, or a question that indirectly raises the meaning of the phrase. And the trial judge can repeat ‘an explanation given under this section’ at any time during the trial, but he or she is not required to give that explanation in exactly the same way that it was first given: ss 63(6) and (7).
We are satisfied that the impugned directions contained ‘an explanation’ of the phrase ‘proof beyond reasonable doubt’ for the purpose of ss 63(1) and (2). While it is implicit in s 63(1) that the explanation that is to be provided must not be one that is not inaccurate or misleading, the judge’s explanation suffered from neither vice. It was framed in terms that the common law of this country has long regarded as unexceptional. The judge described the phrase as constituting ‘the highest standard of proof known in our law’.[30] He said that the words ‘beyond reasonable doubt’ were plain ordinary English words that meant exactly what they say. He also referred to the burden of proof and the presumption of innocence, each of which is a matter that the legislature has indicated a judge may ‘refer to’ when explaining the phrase ‘proof beyond reasonable doubt’ in s 63.[31]
[30]See R v Dookheea (2017) 262 CLR 402, 426 [41] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ); [2017] HCA 36 (‘Dookheea’).
[31]Jury Directions Act 2015, s 64(1)(a).
The question then becomes whether there was anything in the content of the judge’s explanation, or anything the judge said in connection with that explanation, which nonetheless breached ss 63 or 64.
Content of the explanation
The applicant argues that an explanation of the phrase ‘proof beyond reasonable doubt’ will not qualify as an explanation for the purposes of ss 63(1) and (2), or will otherwise breach ss 63 or 64, if:
(a)it indicates that the words in the phrase bear their ordinary meanings; and/or
(b)it does not indicate, in line with the terms of s 64(1)(b), that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty.
In support of these propositions, the applicant relies on the legislative purpose that he submits can be derived from the legislative history, including the references in the extrinsic material to jurisprudence from Canada and New Zealand.
It is true, as the applicant submits, that ss 63 and 64 (and their precursors) constitute a departure from the longstanding common law position that it is generally ‘both unnecessary and unwise’[32] for trial judges to attempt to explain the phrase ‘beyond reasonable doubt’ when directing a jury.
[32]La Fontaine v The Queen (1976) 136 CLR 62, 71 (Barwick CJ); [1976] HCA 52 (‘La Fontaine’). See also Brown v The King (1913) 17 CLR 570, 584 (Barton ACJ); [1913] HCA 70; Thomas v The Queen (1960) 102 CLR 584, 587 (McTiernan J), 595 (Kitto J), 604–5 (Windeyer J); [1960] HCA 2; Dawson v The Queen (1961) 106 CLR 1, 18 (Dixon CJ); [1961] HCA 74; Green v The Queen (1971) 126 CLR 28, 30–4 (Barwick CJ, McTiernan and Owen JJ); [1971] HCA 55; Dookheea (2017) 262 CLR 402, 407–8 [1], 416 [24], 424 [37], 426–7 [41] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ); [2017] HCA 36.
Sections 20 and 21 of the Jury Directions Act 2013 came into force on 1 July 2013. Section 20 was entitled ‘When trial judge may explain “proof beyond reasonable doubt”’. Section 20(1) permitted a trial judge to give the jury an explanation of the phrase ‘proof beyond reasonable doubt’ only if the jury asked a direct question about the meaning of the phrase, or a question that indirectly raised the meaning of the phrase. The Explanatory Memorandum to the Jury Directions Bill 2012 (the ‘2012 Bill’) said the following in connection with s 20(1):
Research suggests that this phrase is often not well understood by jurors. Given that it is a fundamental concept in a criminal trial, it is useful for the trial judge to be able to explain it.
The intention is to allow trial judges to explain the meaning of the phrase where it is raised by the jury.[33]
[33]Explanatory Memorandum, Jury Directions Bill 2012 (Vic) 11.
In the Second Reading Speech for the 2012 Bill, the Attorney-General explained the rationale for s 20(1) as follows:
While ‘proof beyond reasonable doubt’ is a commonly used term, its meaning is not always clear or well understood. Research from New Zealand, Queensland and New South Wales indicates that a significant number of jurors either have difficulty with the concept or apply either too low or too high a test. It is also not uncommon for Victorian juries to ask questions about the meaning of the term.
However, if jurors ask what ‘proof beyond reasonable doubt’ means, judges in Victoria are confined by case law to advising that it is a common English expression that means what it conveys, save for limited and exceptional circumstances. This circular definition is unlikely to provide much guidance to jurors.
Given its importance, judges should be able to assist jurors to understand the concept of ‘proof beyond reasonable doubt’. Accordingly, the bill will provide that if a jury asks the trial judge a question about the meaning of the concept, the judge may answer the question.[34]
[34]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5559 (Robert Clark).
Section 21, which was entitled ‘How explanation may be given in response to jury question’, built on s 20 by setting out a list of matters that the trial judge could refer to or indicate if the jury had asked a question, directly or indirectly, that raised the meaning of the phrase ‘proof beyond reasonable doubt’. As the applicant correctly identified, those matters were drawn from case law in Canada and New Zealand.[35]
[35]Explanatory Memorandum, Jury Directions Act Bill 2012 (Vic) 11.
In 2015, the Jury Directions Act 2013 was repealed and replaced with the Jury Directions Act 2015, with ss 20 and 21 re-enacted in full as ss 63 and 64 respectively. The relevant portions of the Explanatory Memorandum for the bill that became the Jury Directions Act 2015 largely replicated the explanations for ss 20 and 21 of the 2012 Bill.
In 2021, the Victorian Law Reform Commission (the ‘VLRC’) published its report ‘Improving the Justice System Response to Sexual Offences’. The VLRC cited material suggesting that jurors may be reluctant to ask the trial judge questions, even when told that they can do so.[36] It referred to the statements of this Court in Dookheea v The Queen[37] that it was not clear why ‘as a matter of policy, the power of a judge to assist a jury in this respect should depend for its exercise upon the jury first having asked a question’, and that ‘consideration should be given to removing the precondition to the power of explanation’.[38] Further, the VLRC expressed concerns about the level of understanding of the phrase ‘beyond reasonable doubt’, pointing to studies suggesting that when asked to explain what the phrase meant in numbers, jurors’ responses varied from needing to be 50 per cent sure to 99 per cent sure.[39]
[36]Victorian Law Reform Commission, Improving the Justice System Response to Sexual Offences (Report, September 2021) [20.93] (‘VLRC Report’).
[37][2016] VSCA 67, [91] (Maxwell P, Redlich JA and Croucher AJA).
[38]VLRC Report, [20.100].
[39]VLRC Report, [20.94].
As a result, the VLRC recommended that s 63 of the Jury Directions Act 2015 be amended to require that the phrase ‘beyond reasonable doubt’ be explained to jurors in all sexual offence trials, without any requirement for the jury to ask a question first.[40] The VLRC also pointed to material suggesting that jury directions in general are most useful when provided as early as possible in the trial, before jurors form any opinions based on misconceptions.[41]
[40]VLRC Report, Recommendation 82.
[41]VLRC Report, [20.54]. See also Explanatory Memorandum, Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022 (Vic) 55–6.
By the Justice Legislation Amendment (Sexual Offences and Other Matters) Act 2022, Parliament implemented the VLRC’s recommendation to amend s 63 of the Jury Directions Act 2015, and elected to extend the application of those amendments to all criminal trials. Section 63 no longer permitted a judge to give an explanation of the phrase ‘proof beyond reasonable doubt’ in response to a question, but required a judge to give an explanation of the phrase before any evidence is adduced, absent good reason to do otherwise. Consequential amendments were also made to the chapeau of s 64 ‘to reflect that the phrase “proof beyond reasonable doubt” will no longer always be given in response to jury questions’.[42] Those amendments came into effect on 1 January 2023, some 10 months before the commencement of the applicant’s trial.
[42]Explanatory Memorandum, Justice Legislation Amendment (Sexual Offences and Other Matters) Bill 2022 (Vic) 56.
This legislative history demonstrates a clear intention to depart from the common law notion that it is ‘both unwise and unnecessary’ for trial judges to attempt an explanation of the phrase ‘proof beyond reasonable doubt’. By the first phase of legislative reform (reflected in the enactment of ss 20 and 21 of the Jury Directions Act 2013), Parliament expressly permitted trial judges to respond to questions from the jury about the meaning of the phrase. And by the second phase of legislative reform (reflected in the 2022 amendments to ss 63 and 64 of the Jury Directions Act 2015), Parliament imposed an obligation on trial judges to provide an explanation of the phrase prior to the commencement of evidence.
However, we do not accept that in enacting either of these phases of legislative reform, Parliament has limited or prescribed the content or context of the required explanation of ‘proof beyond reasonable doubt’ in the ways for which the applicant contends.
Had Parliament wished to prohibit trial judges from explaining the phrase ‘proof beyond reasonable doubt’ by referring to the plain and ordinary meaning of the words, it could have done so expressly. Had Parliament wished to impose an obligation on trial judges to tell juries that ‘it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty’, it could also have done so expressly. We are not persuaded that Parliament has imposed either of these measures by implication.
The scheme that is created by ss 63 and 64: obliges trial judges to give ‘an explanation’ of the phrase ‘proof beyond reasonable doubt’ before any evidence is adduced;[43] permits trial judges to repeat that explanation (or give another explanation) at any other point in the trial, including in response to a question from the jury; and identifies various matters that a trial judge ‘may’ refer to or indicate in giving their explanation of the phrase. By this scheme, as this Court recently observed, a trial judge has ‘a degree of discretion as to how he or she tailors a direction on the topic in any given case’.[44]
[43]Subject to there being good reasons for not doing so.
[44]Farshchi v The King [2024] VSCA 235, [38] (Priest JA, Niall JA agreeing at [79], Taylor JA agreeing at [80]).
The construction of ss 63 and 64 advanced by the applicant relies heavily on certain statements in the extrinsic materials, and on the Canadian and New Zealand cases referred to in those materials. The high points for the applicant in this material are:
(a)the reference in the Second Reading Speech for the 2012 Bill to research that indicates that a significant number of jurors either have difficulty with the concept of ‘proof beyond reasonable doubt’ or apply either too low or too high a test;
(b)a description in the Second Reading Speech for the 2012 Bill of a statement that the phrase ‘proof beyond reasonable doubt’ is a common English expression that means what it conveys, as being a ‘circular definition that is unlikely to provide much guidance to jurors’; and
(c)the references in the Second Reading Speech for the 2012 Bill and the Explanatory Memorandum for that bill to R v Lifchus and R v Wanhalla, which the applicant submits contain observations that are critical of statements of this type.
It is clear from the Second Reading Speech for the 2012 Bill that when Parliament enacted ss 20 and 21 of the Jury Directions Act 2013, it was concerned that jurors needed to be able to ask for, and receive, assistance about the meaning of the phrase ‘proof beyond reasonable doubt’. It is also clear that Parliament turned its mind to the types of explanations that a trial judge could give when asked by a jury about the meaning of the phrase. Yet it elected not to mandate any particular type of explanation. Further, it elected not to prohibit any particular type of explanation, such as the type of explanation that points to the plain and ordinary meaning of the words. To the contrary, in the Second Reading Speech for the 2012 Bill, the Attorney-General stated that judges ‘will not be required to use any particular form of words when explaining the concept of “proof beyond reasonable doubt”’. Instead, trial judges ‘may tailor or adapt the explanations provided for in the bill as appropriate’.[45]
[45]Victoria, Parliamentary Debates, Legislative Assembly, 13 December 2012, 5560 (Robert Clark).
Sections 63 and 64 must also be interpreted having regard to the guiding principles set out in s 5 of the Jury Directions Act 2015.[46] Those principles include an express recognition by Parliament that it is the responsibility of the trial judge to determine the matters in issue in the trial, the directions that the trial judge should give to the jury and the content of those directions.[47] Further, s 6 provides that ‘[i]n giving a direction to the jury, the trial judge need not use any particular form of words’. These provisions are consistent with a construction of ss 63 and 64 that enables trial judges to decide on the appropriate content of an explanation of ‘proof beyond reasonable doubt’ in any given case.
[46]Jury Directions Act 2015, s 5(5).
[47]Jury Directions Act 2015, s 5(2).
To the extent that the Second Reading Speech and Explanatory Memorandum referred to R v Lifchus and R v Wanhalla, these references were linked to the ‘elements’ that s 21 of the Jury Directions Act 2013 (now s 64 of the Jury Directions Act 2015) indicated could be included in an explanation, which were said to be drawn from these cases. Nowhere in the extrinsic material is there any reference to the statement from R v Lifchus on which the applicant relies – that ‘[t]o instruct the jury that reasonable doubt means nothing more than the “everyday sense” of the words is misleading and constitutes reversible error’.[48]
Context of the explanation
[48][1997] 3 SCR 320, 330 [25] (Cory J for Lamer CJ, Sopinka, Cory, McLachlin, Iacobucci and Major JJ).
The applicant submits that ss 63 and 64 do not permit a trial judge to accompany the explanation of the phrase ‘proof beyond reasonable doubt’ that is given prior to any evidence being adduced with any language that indicates that further explication of the phrase is not possible.
We accept that it is implicit in s 63(5) that Parliament intends that juries be able to seek assistance from the trial judge about the meaning of the phrase ‘proof beyond reasonable doubt’ throughout a trial, notwithstanding that they have received an explanation of the phrase from the judge at the outset of the trial. Section 63(5) expressly permits judges to provide that assistance. Further, s 64(1) identifies a range of different matters that may be included in an explanation of the meaning of the phrase, suggesting that a judge may choose to tailor their initial explanation of that phrase in one way, and then tailor a subsequent explanation that is responsive to a question from the jury in a different way. There is therefore a real question about whether an initial explanation of the phrase that is accompanied by language that effectively precludes a jury from seeking further assistance about the meaning of the phrase is compatible with the scheme created by ss 63 and 64.
However, it is unnecessary to decide that question in this case. That is because the language that accompanied the judge’s initial explanation of the phrase, when viewed as part of the judge’s initial directions as a whole and as the jury listening to those directions might understand them, could not reasonably be understood to have had that preclusive effect.[49]
[49]See La Fontaine (1976) 136 CLR 62, 73 (Barwick CJ); [1976] HCA 52; Graham v The Queen (2016) 90 ALJR 820, 832 [59] (Gordon J); [2016] HCA 27, citing R v Stoddart (1909) 2 Cr App Rep 217, 245 (Lord Alverstone LCJ); Dookheea (2017) 262 CLR 402, 424 [37] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ); [2017] HCA 36.
Prior to giving the impugned directions, the judge made clear to the jury that they could ask questions of him during the trial that were related to the law, the evidence and issues in the trial. He told the jury:
[The tipstaff] is not a lawyer, and even if he was it would not be his role — and is not his role — to give you any advice concerning the evidence, concerning the law or anything relating to the issues in the trial. If you have a question to be asked of that kind, then — as I said — it is asked in open court in front of the parties through the foreperson, asked of me. And that generally can occur during deliberations more than during the trial.
The judge also told the jury that the directions that he was about to give are ‘some brief instructions … concerning one very central principle of our criminal justice system that applies to this trial and all other trials’. He said that he would ‘be repeating these instructions in greater detail at the end of the trial so don't worry if you don't get a full grasp on it now’. And at the conclusion of his initial directions, he described his directions as ‘introductory remarks’.
The part of the impugned directions on which the applicant focuses is as follows:
Now, as I've stated the prosecution must prove the guilt of the accused man on the particular charge you are considering beyond reasonable doubt. That is the highest standard of proof known in our law. The words ‘beyond reasonable doubt’ are plain ordinary English words and they mean exactly what they say. They really do not admit of any better definition.[50]
[50]Emphasis added.
In our view, when viewed against the backdrop set out above, the final two sentences of the impugned directions did not have the ‘preclusive’ effect for which the applicant contends. By those sentences, the judge told the jury that the words ‘beyond reasonable doubt’ could not be ‘defined’ in any ‘better’ way than their plain ordinary English meanings. We are not persuaded that the message these sentences conveyed when spoken to the jury was that the jury could not, or should not, ask the judge any questions about the meaning of the phrase ‘proof beyond reasonable doubt’. For example, we are not persuaded that these sentences conveyed to the jury that they could not subsequently ask the judge whether they could find the applicant guilty if they thought he was probably guilty, or very likely to be guilty, particularly in light of the judge’s express indication that the jury could ask him questions about the law, or any other issue in the trial.
Nonetheless, it would appear prudent for judges to avoid using language such as that contained in the final sentence of the impugned directions in the future.
No substantial miscarriage of justice
As a result of our conclusion that the impugned directions constituted an explanation of the phrase ‘proof beyond reasonable doubt’ for the purpose of ss 63(1) and (2) and that the directions were not otherwise incompatible with the scheme created by ss 63 and 64, the impugned directions did not give rise to any error or irregularity in the trial and therefore to any miscarriage of justice.
However, had we concluded that the judge had breached the obligation imposed by ss 63(1) and (2) to give an explanation of the phrase ‘proof beyond reasonable doubt’ before any evidence was adduced because the content of the impugned directions did not contain an explanation of the phrase ‘proof beyond reasonable doubt’, we would not have concluded that there was a fundamental error or irregularity in the trial. In other words, we would not have concluded that there was a substantial miscarriage of justice pursuant to s 276(1)(b) of the Criminal Procedure Act 2009.
The Jury Directions Act 2015 does not specify the consequences of a breach of the obligation imposed by ss 63(1) and (2) to explain the phrase ‘proof beyond reasonable doubt’ before any evidence is adduced in the trial, absent good reason to do otherwise. It is therefore necessary, as the first step, to assess whether the legislative purpose was that non-compliance with this obligation would constitute a fundamental error or irregularity in the trial so as necessarily to have resulted in a substantial miscarriage of justice.[51]
[51]Awad v The Queen (2022) 275 CLR 421, 430 [18] (Kiefel CJ and Gleeson J); [2022] HCA 36 (‘Awad’); Karam v The King [2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA) (‘Karam’).
We consider that the legislature did not intend that every instance of non-compliance with the obligation imposed by ss 63(1) and (2) would constitute a fundamental error or irregularity in the trial. Nowhere in the Jury Directions Act 2015 has the legislature suggested that non-compliance with the obligation necessarily means that a fair trial will be lost in every case.[52] Further, the effects of non-compliance may vary greatly, ranging from the most serious to the very trivial.[53] For example, where a trial judge fails to provide an explanation of ‘proof beyond reasonable doubt’ before any evidence is adduced in the trial, but provides such an explanation shortly after the evidence has commenced, the consequences of non-compliance would likely be marginal at best. On the other hand, where a judge fails to provide an explanation of the phrase at any time in the trial, for no good reason, the consequences may be more serious. We consider that this range of potential consequences suggests that Parliament did not intend that every breach of the obligation to explain the phrase ‘proof beyond reasonable doubt’ before evidence is adduced would constitute a substantial miscarriage of justice.
[52]Awad (2022) 275 CLR 421, 431 [23] (Kiefel CJ and Gleeson J); [2022] HCA 36.
[53]Awad (2022) 275 CLR 421, 447–8 [88] (Gordon and Edelman JJ); [2022] HCA 36.
In reaching this conclusion, we have had regard to the fact the obligation imposed by ss 63(1) and (2) concerns the criminal standard, which has been described as the ‘golden thread’ said to run throughout the web of the criminal law.[54] Contrary to the applicant’s submission, we do not regard this to be determinative of the question before us. The question is whether Parliament intended that non-compliance with this particular obligation in connection with the criminal standard of proof necessarily occasions a substantial miscarriage of justice. While the fundamental nature of the principle or right to which a particular direction is connected will be relevant to that inquiry, it does not supply the answer to the inquiry. Thus, the High Court has held that Parliament did not intend that every instance of non-compliance with s 44J of the Jury Directions Act 2015, which concerns the fundamental right of any accused person to remain silent, would automatically result in a substantial miscarriage of justice.[55]
[54]Woolmington v DPP(UK) [1935] AC 462, 481 (Viscount Sankey LC), cited in R v Chatzidimitriou (2000) 1 VR 493, 502 [26] (Callaway JA); [2000] VSCA 91.
[55]Awad (2022) 275 CLR 421, 429–30 [17]–[18], 431 [21]–[23] (Kiefel CJ and Gleeson J), 447–8 [86]–[91] (Gordon and Edelman JJ); [2022] HCA 36.
In this context, we have also considered the applicant’s reliance on the High Court’s decision in Subramaniam. The High Court there decided that a departure from the requirements of s 21(4) of the Mental Health (Criminal Procedure) Act 1990 (NSW) deprived a special hearing of its fundamental character and constituted a miscarriage of justice. The applicant draws an analogy with the mandatory language used in s 21(4) and submits that just as non-compliance with that provision constituted a miscarriage of justice, so too should non-compliance with ss 63(1) and (2).
We reject that submission. Subramaniam involved a different statutory context, with a different purpose. The (now repealed) Mental Health (Criminal Procedure) Act 1990 (NSW) contained a scheme under which an accused person who was found to be unfit to be tried, and would likely remain unfit to be tried within the next 12 months, could nonetheless be tried by way of a special hearing.[56] The Act required that at the commencement of the special hearing, the matters listed in s 21(4) (described in [212] above) be explained to the jury. The scheme of the Act had dual purposes. The first was the ‘ameliorative’ purpose of enabling the person who was unfit to be tried in an orthodox way to be given the opportunity of being acquitted in a special hearing, so that any possibility of legal proceedings against them of any kind may be brought to an end. Another purpose of the Act was to afford victims an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, had been done. This purpose was secured, among other things, by the holding of the special hearing.[57]
[56]Subramaniam (2004) 79 ALJR 116, 118–19 [4], [7]–[10] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ); [2004] HCA 51.
[57]Subramaniam (2004) 79 ALJR 116, 123 [28] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ); [2004] HCA 51.
The matters a trial judge was required to explain under s 21(4) were matters that made a special hearing relevantly ‘special’. The judge in Subramaniam, by his failure to explain these matters, had failed to adequately distinguish the special hearing from an orthodox trial, which undermined the important purposes of the Act. It was in these circumstances that a failure to comply with s 21(4) was held to be a ‘departure from an essential requirement going to the root of the special hearing’ and thus to constitute a miscarriage of justice.[58]
[58]Subramaniam (2004) 79 ALJR 116, 126 [46], [48] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ); [2004] HCA 51.
Subramaniam does not stand for the proposition that where a statute imposes some sort of ‘mandatory’ requirement on a trial judge, non-compliance with that obligation will necessarily constitute a substantial miscarriage of justice. As the High Court observed in Awad, the question of what may be taken to follow from non-compliance is not resolved by describing statutory requirements as ‘mandatory’. The question is what Parliament intended to flow from an act done in breach of the provision in question.[59]
[59]Awad (2022) 275 CLR 421, 430 [18] (Kiefel CJ and Gleeson J); [2022] HCA 36; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 390 [93] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
Having concluded that any non-compliance with the obligation to give an explanation imposed by ss 63(1) and (2) is not a fundamental irregularity or error, so as necessarily to result in a substantial miscarriage of justice, we would also not have concluded that the applicant has discharged his burden to show that any failure to provide an explanation of the phrase before evidence was adduced had the capacity to affect the outcome of this trial.[60] Having received the expanded explanation of the phrase ‘proof beyond reasonable doubt’ in the judge’s charge, we consider that the jury would ultimately have been left in no doubt as to the standard of proof that was required to convict.
[60]Karam [2023] VSCA 318, [216] (Beach, McLeish and Kennedy JJA).
The modified Liberato direction that formed part of the charge is also significant. The key factual issue at trial was who first possessed the knife — the applicant or Dylan. The modified Liberato direction fixed upon that issue. The jury were instructed to acquit if they could not exclude as a reasonable possibility that it was Dylan who first took possession of the knife. This direction was forensically advantageous to the applicant, and — as the respondent submitted — removed any prospect of a substantial miscarriage of justice.
The knife was the only weapon produced during the fracas. The applicant did not dispute that he ultimately took possession of the knife. As defence counsel argued in closing submissions to the jury:
[The applicant] doesn’t deny stabbing Dylan or Heath after wrestling possession of the knife from Dylan. He doesn’t deny that in his record of interview.
When it came to the murder charge, the applicant’s possession of the knife (either from the start of the events, on Heath’s account, or part way through, on the applicant’s) left Dylan unarmed. On the applicant’s account, it was possible that Heath was already quite seriously injured at this time and unable to be of assistance to Dylan.
Thus, even on the applicant’s account of events, there was at least a prospect that the jury might have been persuaded that the applicant did not believe that stabbing Dylan was necessary to defend himself from the infliction of death or really serious injury, or that stabbing Dylan was not a reasonable response in the circumstances as the applicant perceived them.
By directing the jury that they could not convict the applicant of murder if they decided that it was reasonably possible that Dylan had first possession of the knife, the modified Liberato direction operated to remove at least a prospect, open on the applicant’s version of events, that the prosecution would succeed in negativing self-defence in that circumstance.
The modified Liberato direction impacted upon the consequences of any failure by the judge to give an explanation of the phrase ‘beyond reasonable doubt’ as required by ss 63(1) and (2). As the judge said to the jury when giving the modified Liberato direction:
[I]f you cannot exclude as a reasonable possibility that before Dylan and Heath each sustained their injuries it was Dylan who first took possession of the knife; if you cannot exclude that as a reasonable possibility then it would follow that you could not be satisfied beyond reasonable doubt of the account Heath Bond gave to you in evidence. In those circumstances it would follow, that is if you cannot exclude as a reasonable possibility that it was Dylan who first took possession of the knife, it would follow from that you could not be satisfied beyond reasonable doubt that the accused man was not acting in lawful self-defence in the course of the part of the incident in which both Dylan and Heath did sustain their injuries.[61]
[61]Emphasis added.
The modified Liberato direction — already favourable to the applicant by eliminating a prospect that self-defence would fail — essentially told the jury that if they were unable to exclude the reasonable possibility of the key fact at trial, it ‘would follow’ that they could not be satisfied ‘beyond reasonable doubt’ that the applicant was guilty. Such a direction left little room for uncertainty on the part of the jury about the content or application of the criminal standard in the circumstances of this case. The jury were instructed that if they took a certain view of the facts, then this view was dispositive of the issue of whether the prosecution had proved the applicant’s guilt beyond reasonable doubt.
The applicant did not contend that the modified Liberato direction was erroneous. That is unsurprising given how forensically advantageous the direction was for him. But the modified Liberato direction that was given meant that, even if the judge did fail to give the explanation of the phrase ‘beyond reasonable doubt’ required by ss 63(1) and (2), such failure could not have caused a substantial miscarriage of justice.
Finally, had we concluded that the final sentences of the impugned directions were contrary to the scheme created by ss 63 and 64 because they effectively precluded the jury from asking questions about the meaning of the phrase ‘proof beyond reasonable doubt’, we would also not have found that this constituted a substantial miscarriage of justice. The legislature could not be said to have intended that every instance in which a judge effectively precludes or discourages a jury from asking questions about the meaning of the phrase would constitute a fundamental error or irregularity in the trial. Again, the effects of non-compliance may vary greatly, depending on the extent to which the jury otherwise received guidance on the meaning of the phrase. Further, the fact that the legislative scheme permits, but does not oblige, a judge to answer a jury’s questions about the meaning of the phrase may be thought to demonstrate that the ability of juries to ask such questions, while important, is not regarded as necessarily going to the root of a fair trial.
Further, we have concluded that any error or irregularity caused by any ‘preclusive’ effect of the final sentences of the impugned directions did not have the capacity to affect the outcome of the trial in this case, in circumstances where the judge: told the jury that they could ask him questions about the law or issues in the case; gave a more detailed explanation of the phrase ‘proof beyond reasonable doubt’ in his charge; gave the jury the direction on inferences referred to above; and gave the jury the modified Liberato direction that was forensically advantageous to the applicant in the context of this case and which, for the reasons expressed above, rendered inconsequential any error or irregularity committed by the judge.
We would grant leave to appeal on proposed ground two, but reject that ground.
---
- AGLC
- Feetham v The King [2025] VSCA 179
- Case
- [2025] VSCA 179
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and testimonies presented during the trial and assessed the credibility and consistency of the accounts given by the witnesses. The court considered whether the jury, as the trier of fact, could reasonably accept the surviving brother's account of the stabbing despite its inconsistencies and lies. The court also evaluated whether the trial judge's direction to the jury about the standard of proof beyond reasonable doubt constituted an explanation of the standard of proof and whether such direction impermissibly precluded the jury from asking questions about the standard of proof. The court ultimately concluded that the jury's verdict was not unreasonable and that the trial judge's direction did not constitute an error.
The court granted the appellant leave to appeal on the issue of the trial judge's direction to the jury regarding the standard of proof beyond reasonable doubt. However, upon considering the evidence and the trial judge's direction in the context of the entire trial, the court found no error in the direction and dismissed the appeal. The court upheld the appellant's conviction for murder.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.