Hague v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0134

KARL HAGUE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	FERGUSON CJ, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 September 2019
DATE OF JUDGMENT:	3 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 218	First revision: 6 October 2020
JUDGMENT APPEALED FROM:	R v Hague [2018] VSC 323 (Lasry J)

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CRIMINAL LAW – Conviction – Murder – Whether trial judge erred in refusing to stay indictment as abuse of process – Evidence said to be ‘weak or tenuous’ – Such evidence, even if correctly characterised, does not give rise to abuse of process – No power of Court of Appeal to allow appeal on this basis – Jago v District Court of New South Wales (1989) 168 CLR 23; Doney v The Queen (1990) 171 CLR 207; IMM v The Queen (2016) 257 CLR 300 – Whether verdict unsafe or unsatisfactory – Circumstantial case in part – Eye-witness to offending – Identification of applicant – Confession evidence – No doubt as to correctness of verdict – M v The Queen (1994) 181 CLR 487 – Whether fresh evidence – Affidavits proposing alternative killer – Evidence not credible – No significant possibility jury would have acquitted – R v Nguyen [1998] 4 VR 394 – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Murder – Sentence of 26 years’ imprisonment with non-parole period of 20 years – Whether sentence manifestly excessive – Significant time between offending and sentencing – Change in sentencing practices – Mitigating impact of youth – Seriousness of offence – General and specific deterrence – Guarded prospects of rehabilitation – Sentence within range – Leave to appeal refused – Azzopardi v The Queen (2011) 35 VR 43; Stalio v The Queen (2012) 46 VR 426; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms F Gerry QC with Dr T Alexander	Nelson Brown Legal
For the Respondent	Ms F Dalziel QC with Ms A Ellis	Mr J Cain, Solicitor for Public Prosecutions
Attorney-General for the State of Victoria (Intervener)	Mr N Robinson QC with Mr L Brown	Victoria Government Solicitor’s Office

FERGUSON CJ

NIALL JA
WEINBERG JA:

Following a trial before Lasry J and a jury, the applicant was convicted of a single charge of murder. He was sentenced to a term of imprisonment of 26 years with a non–parole period of 20 years.

The applicant has applied for leave to appeal against both his conviction and sentence. For the reasons that follow, both applications will be refused.

Overview of the prosecution case

The deceased, Ricky Balcombe, died on 5 May 1995, from two stab wounds to the back. He was stabbed at around 3:20 pm in the Market Square Shopping Centre in central Geelong. He was 16 years of age. The shopping centre fronts on to Little Malop Street, which was a pedestrian mall closed to traffic. The mall runs east–west between Yarra Street and Moorabool Street.

At the time he was killed, Balcombe was a member of a gang called the Red Bandanas or Main Street/Stream Criminals (‘MSC’). The gang frequented the Geelong Mall in Little Malop Street and the Golden Cue Billiard Parlour (‘Golden Cue’) in the mid 1990s. Other members of the gang included Nick Munn, Paul Bellia and Stephen Cramer.

On the evening of 21 April 1995, Balcombe was with Munn. Following a hostile exchange with the applicant, who was clearly both older and stronger than them, Balcombe and Munn fled along Malop Street, pursued by the applicant. The applicant caught Balcombe and punched him to the head several times, which resulted in him falling to the ground. The applicant continued to hit Balcombe until the applicant was pulled away by an associate, Nathan O’Neil. As a result, Balcombe had injuries to his face and a cut to his leg.

In retaliation, Munn organised a number of fellow MSC members and other friends to meet in Malop Street in the early hours of 22 April 1995. The applicant and his friends saw the group approaching and they jumped into a brown Holden Kingswood sedan. The applicant was seated in the driver’s seat. The vehicle was attacked by the group with weapons, including a small axe and a machete. The vehicle was damaged and the driver’s side window was smashed, which resulted in minor injury to the applicant. The applicant drove away from the group who had attacked the car before turning around and driving towards the group, causing them to take evasive action.

On the afternoon of 5 May 1995, Balcombe and a number of other MSC members, including Munn and Bellia, were at the Golden Cue in the mall. Balcombe and Bellia left the Golden Cue and headed downstairs, into the mall. They stopped briefly to talk to Michael Lawson and his brother Christopher Lawson.

Importantly, two witnesses, Christopher Lawson and Leigh Witcombe gave evidence that they saw the applicant at the mall on the afternoon of the murder.

Balcombe and Bellia went into Market Square Shopping Centre and walked along the corridor towards the supermarket. When they got to the lifts, the applicant approached them and said ‘Do you remember me, motherfucker?’ and then he stabbed Balcombe twice in the back. Bellia ran off and the applicant chased after him.

After the incident, the applicant and his friend David Lewin went to a unit in Corio, where Briony Eccles lived. The applicant and Lewin locked themselves in the garage and when the applicant emerged he had changed his clothes.

He then went to his girlfriend Belinda Witcombe’s house. A few days after the death of the deceased, he told a group of people, including Janelle Landy, who later testified, that ‘I stabbed him in the back, fuck him.’ Later again, in prison, he told another prisoner, Michael Ansell, that he had stabbed the deceased.

The applicant made a number of statements to police and gave evidence at his trial. The prosecution relied on three lies, which they contended were told by the applicant, and the evidence of Eccles that he had changed his clothes after the offence, as incriminating conduct.

It follows from that synopsis that the prosecution sought to establish the applicant’s guilt by pointing to motive (revenge for the attack on the vehicle), opportunity (evidence that placed the applicant at the mall and rebutting the applicant’s various claims as to where he was at the time), identification (Bellia), admissions (Landy and Ansell) and incriminating conduct (lies about the extent of the assault on Balcombe and his denial that he was driving the car, and the fact that he changed his clothes at Eccles’ house ).

The defence case

It was not in issue at trial that, although he had given differing accounts to police, the applicant assaulted Balcombe on 21 April 1995 and was in the Kingswood when it was attacked in the early hours of the following morning. On the day of the murder, he was with Nathan O’Neil and his father Waina O’Neil, unloading a truck at Geelong Grammar School, had lunch at a roadside cafe, went home and then to his girlfriend’s house. He denied being in the mall on the day and denied any involvement in the death of Balcombe.

Although he had no onus to do so, he put forward a number of alternative hypotheses at trial, including that Balcombe had been killed as a result of gang conflict, probably involving drug dealing; that the assailant was Asian or, alternatively, the assailant was Blair Anson, who was a person whom Bellia had identified to police as the killer; or that a youth called Shane Wild had orchestrated the killing because Balcombe, or other members of his gang, had robbed Wild of a jacket. We note that, by ground 3, the applicant seeks to adduce fresh evidence in order to show that Munn was the killer.

Proposed grounds of appeal — Conviction

On the conviction application, there are three proposed grounds of appeal. They are as follows:

1. The learned trial judge was wrong to refuse the application to stay the indictment as an abuse of process: s 276(1)(b) [of the Criminal Procedure Act 2009].
2. The conviction is unreasonable and cannot be supported having regard to the evidence: s 276(1)(a).
3. There has been a substantial miscarriage of justice by reason of the discovery of fresh evidence: s 276(1)(c).

As will appear, ground 1 does not turn on our assessment of the evidence, but fails on a point of principle.

Ground 3 relies on the admission of fresh evidence, in the form of third–party confessions, to establish that there was a real likelihood that Munn, rather than the applicant, had killed Balcombe, and turns on the nature and quality of the fresh evidence.

Ground 2, which asserts that the verdict is unreasonable, requires this Court to consider the whole of the evidence. We have done that. In order to explain our reasons, it is not necessary to recount or summarise the totality of the evidence. There were around 60 witnesses at the trial. Rather, the focus of these reasons will be on the specific matters relied on in the submissions in this Court and so much of the broader evidence as is necessary to explain our conclusions.

Accordingly, before turning to the grounds, it is necessary to survey the evidence of the eyewitness Bellia; the evidence of other witness to the stabbing; the evidence that placed the applicant at the scene of the murder; the evidence concerning the movements of the applicant at about the time of the murder and afterwards; and, finally, the evidence of the applicant.

The evidence of Paul Bellia

Bellia was a challenging witness for both the prosecution and the defence. As will emerge, he described a different person to the police immediately after the incident; he twice failed to identify the applicant in a line–up, in 1995 and 1996; he declined to identify the applicant in a committal in 1997, where he said that the killer could be anyone; he had numerous hospitalisations for mental illness, including as an involuntary patient, and received electroconvulsive therapy; and he gave inconsistent answers in his evidence. Against those powerful matters that compelled a high level of caution in accepting his evidence, he was present at the attack on the Kingswood and, at that time, had the opportunity to observe the applicant in the front seat of the car. He was also present at the fatal attack, where he had a reasonable opportunity to identify the assailant.

Recognising the potential flaws in the evidence of Bellia, the prosecutor emphasised in his closing address to the jury that the prosecution case did not depend solely on his evidence. That said, his evidence was clearly of importance and it is necessary to refer to it in some detail.

Bellia was a member of the MSC gang. He said that he received a telephone call from Munn late on the evening of 21 April 1995, saying that Balcombe had been bashed and that Munn was assembling the members of the gang to retaliate. Bellia went to the Golden Triangle, where he saw two carloads of people arrive carrying weapons including poles, a tomahawk axe of some description, machetes and possibly a hammer. In accordance with Munn’s instruction, Bellia met them in the alleyway next to the Golden Triangle. He saw Balcombe, who was limping and had blood on his leg. He said it was clear that Balcombe had been hurt. Balcombe remained in the car during the ensuing attack.

Bellia described the attack on the Kingswood which involved, on his estimation, around 20 people. His evidence was that the group, using weapons, had engaged in a vicious attack on the car and its occupants. He said there were four or five people in the car, which was a four–door sedan, and he was variously positioned at the passenger side and the driver’s side during the attack.

Bellia said that he was in a position to see the driver very clearly. He said that he was perhaps just a metre away from the driver’s side window when the attack was launched upon those in the car. He said that he did not know and had not seen the applicant before that time. He said the car drove away and then returned, and was driven towards the attackers, requiring them to take evasive action.

He said he got a good look at the driver and described him as Caucasian with dark, or dark brown, long hair. He estimated the driver was around 20 to 25, or possibly 30, years of age.

On 5 May 1995, Bellia, Balcombe and Stephen Cramer caught the bus to Geelong and went to the Golden Cue, where Bellia saw Munn and the Lawson brothers. He and Balcombe decided to go to Myer to steal aftershave and headed towards the shopping centre, entering the centre from a side entrance fronting the mall. He said that he saw a man, who he later knew to be Lewin, who made a threatening gesture or remark to him. Bellia said that he saw Lewin on two occasions that day: the first in the mall ,where there had been a brief interaction, and a short time later inside the shopping centre.

At approximately 3:20 pm, they were in the shopping centre and were walking along a corridor towards the lifts. Bellia described seeing a man coming towards them. He noticed the person’s face from a distance of about five metres and that the man’s eyes ‘looked angry’. The man produced a knife and said ‘Do you remember me motherfucker?’, before stabbing Balcombe. Bellia, who was within two metres of the attack, described the fatal attack as comprising two definite strikes, and the assailant ‘did not pull back whatsoever’.

When asked in his evidence whether he had seen the man’s face before, Bellia answered that ‘at that moment I didn’t straight away put together, I didn’t realise … that it was the same, same face as I [had] seen in the car. The same face’. He said that he made that realisation within the next few days.

As Balcombe fell to the ground, Bellia ran from the scene. As he was fleeing, he saw an Asian male, who he knew as Johnny and who was later identified as Phong Huynh, coming towards his direction.

Later that day, Bellia spoke to Detective Senior Constable John McKinnon. He gave the police officer a description which matched a youth named Blair Anson. Although Bellia did not name Anson, he told the police officer that the assailant was around 18 years of age with brown curly hair, past the shoulder, and had watery eyes. He said that ‘a friend stabbed him a couple of years ago’ and that he was wearing a blue and white Adidas Geelong Football Club jacket.

We interpolate that the police officer gave evidence that he had been told by another witness that, a few days earlier, Anson had been beaten up and covered in blood and that he was ‘going to get back at them’.

On 16 May 1995, Bellia participated in an identification parade at the Geelong police station. He said that there were 10, or possibly 12, men standing in a line, including the applicant, who he was standing very close to them. He was asked to walk along the line and indicate or touch any person he identified as the killer. He told police that he did not recognise anyone as the assailant. In his evidence, Bellia said that he recognised the applicant as the man who had stabbed Balcombe. He explained that he did not tell police because he was overwhelmed with fear.

Bellia said that, in July 1995, he had seen the applicant in the Herne Hill area, near Geelong, in a red and black Ford GT style car and that, as the applicant had seen him, the applicant said something along the lines of ‘you’re fucked’ or ‘you’re dead’.

Bellia said that the next time he saw the applicant was at the Geelong show in October 1995. On that occasion, he said he was with Munn, Cramer, Mathew Davies and a couple of females. He said he was walking along a walkway inside the showgrounds and saw the applicant walking straight towards him. He said that one of the people he was with, most probably Cramer, asked him ‘was that him?’ and, a little later, one of them asked ‘was that Karl?’.

On 28 March 1996, Bellia participated in another identification parade at the St Kilda Road police complex, in Melbourne. On that occasion, there was a glass screen separating him from the parade. He said that he was ‘pretty sure’ that he recognised the applicant. However, he said that he did not identify the applicant to the police because ‘I was just scared, I was still scared of something happening to me if I said something’.

The applicant was charged with murder in October 1996. A committal hearing was held in 1997, at which Bellia was called as a witness. In his statement, he said that he did not identify the applicant or anyone as he did not have a vivid recollection of what the offender looked like. At the committal he said, among other things, that the killer ‘could have been anyone’.

We note that the prosecution was subsequently discontinued before it was renewed by direct presentment in 2017.

Extensive medical records relating to Bellia were produced to the applicant as part of the trial process. Those records established that Bellia had numerous hospitalisations for mental illness, had been an involuntary patient, received electroconvulsive therapy treatment and was prescribed psychiatric medication for extended periods. His symptoms included hallucinations. Notes written by Bellia during this time identified a number of people as the killer, including a fellow patient, and, in other places, stated that Bellia did not know who the killer was.

In cross–examination, he accepted he had a history of post–traumatic stress disorder, and possibly a diagnosis of schizophrenia. However, his understanding was that drug induced psychosis was a more probable diagnosis. He explained that his mental health had been stable for the preceding 15 years, without any episodes of mental illness, and that, during that time, he had been healthy, stable, held jobs and raised his children.

Ultimately, Bellia said he was clear in his evidence that he had seen the assailant and that it was the same person who was in the driver’s seat of the Kingswood, at the Geelong show and in the identification parades.

Other witnesses to the stabbing

The prosecution called a number of witnesses who were present within the shopping centre at the time of the stabbing. They had varying opportunities to witness the stabbing or its immediate aftermath. None of them, with the exception of Bellia, identified the applicant. A number of them identified an assailant who met the general description of the applicant. It is not necessary to refer to all of them.

Elizabeth Todorovska

Elizabeth Todorovska[1] was waiting to use one of the public phones near the lifts when she witnessed the stabbing. She described seeing Balcombe crouching and holding his left leg.[2] She said the corridor was dark and that she only had a quick glance at the killer before turning away in panic. She described him as being in his 20s, looking bigger than Balcombe, very stocky and with no facial hair and dark hair. He was wearing a bomber jacket with three diagonal colours.
[1]Elizabeth Timanowicz at the time of trial.
[2]The autopsy recorded an injury to the right leg.

On 16 May 1995, she participated in an identification parade, but did not identify anyone as the assailant. A police record of that occasion attributed her as describing the offender as Asian. She did not give that evidence at the trial, saying only that her observation was affected by the fact that it was dark in the corridor. Neither in the description she gave on the day to another witness, David Gasparini, or in her statement to police did she describe the attacker as Asian.

Tolga Savas

Tolga Savas gave evidence that he met his friend Huynh, also known as Johnny, at the Geelong Mall on 5 May 1995. Shortly before the attack, he was standing with Huynh, holding a baby that he was looking after while the baby’s mother was shopping or in another part of the centre. Although the evidence was a little unclear, it appears that Huynh was the baby’s father.

He said he heard footsteps and saw a frightened looking man, who he identified as Bellia, yelling ‘he’s got a knife’ and running past him. He said that Huynh walked towards the place where the person had come from. As this was happening, another man came towards them, holding a knife which had blood on it. He heard Huynh say to the man with the knife ‘Drop it drop it’, which the man then did. He said that he was not sure whether the knife had come into contact with Huynh. He said that he and Huynh then chased after the man, but they could not see where he went and soon lost sight of him.

In cross–examination, it was put to Savas that he knew that someone was going to be stabbed at the mall that day. It was Munn who was to be stabbed in retaliation for an earlier assault on another person, Wild. The witness denied knowing Munn or Wild, and denied any knowledge that someone was going to be attacked at the mall that day. It was also put to him, and he denied, that the killer had passed him a jacket which the killer had been wearing. Extracts of an earlier statement, in which he had said that the knife had come into contact with Huynh were also put to him, but he said that he could not recall whether or not that had occurred. It was then put to him that Huynh was in fact the killer and that Savas had identified him in the preparation of a photo identification with police. This was denied.

Phong Tan Huynh

Huynh gave evidence. As a result of an injury to his head sustained in a machete attack, his memory was affected. Before his brain injury, he had given a statement to police. On the day of the murder, he was with Savas. Earlier that morning, he had been to the Golden Cue where he had seen Munn, Bellia and Balcombe. He later went to the mall with his partner, their child and Savas.

He described seeing Bellia run from the scene, followed by a man carrying a knife. He described the man carrying the knife as of Australian appearance, 17 to 18 years’ old, taller than his own height (being 175 cm), of slim build and with dark brown hair. He described the person as wearing a Geelong Football Club jumper.

He was cross–examined extensively and it was put to him that he and Savas had been involved with Wild, who had organised for them to attack Munn with a knife in order to recover a jacket that had been stolen from Wild. It was also suggested to him that the attack was by members of a Vietnamese gang in retaliation for a fight that had occurred at a party attended by Vietnamese gang members. He emphatically denied both suggestions.

After a series of questions directed at establishing that Huynh had knowledge of, or was involved in, the stabbing, he replied ‘I am the fuckin’ good side here, right, I’m trying to help and you’re accusing me of wrongdoing here. No, I don’t know anything about a plot or murder or anything like that, okay’.

The other evidence placing the applicant at the scene

Christopher Lawson first made a statement to police in 2017. He was subsequently diagnosed with terminal lymphatic cancer and gave evidence before the judge in advance of the trial. A recording of his evidence was played to the jury.

In his evidence, he described going to the mall on 5 May 1995 with his brother Michael. After having lunch, he said that at about 2:10 pm they walked along the mall, where he saw the applicant leaning against a pillar. He described the applicant as wearing blue jeans, a dark blue Adidas jacket and white sneakers. His hair was long, in a mullet style, being longer at the back, extending down to his shoulders. As they approached, the applicant said to them ‘you’re fucked you dogs’. Christopher Lawson responded in aggressive terms and Michael pulled his brother away. Christopher Lawson had known of the applicant for a number of years through his sister and her husband. He had had little contact, however, with him over that period.

As they walked further along the mall, they saw Balcombe and Bellia sitting out the front of a store and had a brief chat with them.

Christopher Lawson was interviewed by the police following the murder. He did not tell the police that he had seen the applicant in the mall that day. He gave evidence, in explanation, that everyone was afraid of the repercussions of saying something to the police. He described a code of silence that inhibited gang members from talking to police. It was not until 2017 that he told police that he had seen the applicant at the mall that day.

Michael Lawson gave evidence that he and his brother were in the mall on 5 May 1995 for most of the day. They spoke briefly to Balcombe and Bellia. He did not know the applicant personally and did not know what he looked like. He could not remember his brother having an altercation in the mall on that day. He said that his brother was regularly in altercations with people and he had often needed to pull him away from altercations.

Leigh Witcombe made a statement to police on 23 October 1995. He gave evidence and was cross–examined in the committal in 1997. By the time of the trial, he had died and his statement and evidence from the committal was read to the jury.

In his statement he said that he was in year seven when he first met the applicant. In 1995, the applicant was going out with his sister and he had seen him on a number of occasions before the day of the murder. He said that he had been at school that day and caught the bus to Geelong at about 3:00 pm. He said that he noticed the time on the clock on the T & G building. He said that after he had obtained a drink and a snack from the supermarket, he sat in the mall near the Sportsgirl store. While he was sitting there, he saw the applicant, a person well known to him, and they exchanged greetings. After that brief interaction, he did not see where the applicant went. He then went for a walk. He returned to the murder scene and he observed police everywhere. He admitted that he had smoked marijuana after school and then had gone to the mall, and that this may have affected his recall.

In cross–examination at the committal, he accepted that he did not make a statement to police until 23 October 1995, after he had spoken with his sister and after he was aware that there was a reward of $10,000[3] for assistance leading to a conviction. He accepted that at the time he saw the applicant in the mall he was ‘under the influence’ of the marijuana joint that he had smoked. He maintained that he was ‘pretty sure’ that he had seen the applicant on that day, and that he was ’95 per cent sure that it was definitely him’.
[3]Although evidence is available that suggests that the reward was $50,000 at that time, Leigh Witcombe’s statement suggests that he thought the reward was $10,000.

The movements of the applicant on 5 May 1995

A number of witnesses gave evidence about the applicant’s movements on 5 May 1995.

Nathan O’Neil was a friend of the applicant and was with him when the applicant struck Balcombe and during the attack on the Kingswood. He said that on 5 May 1995 he was working with his father at Geelong Grammar School. The applicant and the applicant’s friend Lewin turned up at around 12:30 pm and then the three of them went to the Corio Roadhouse for lunch, which would have taken about 20 minutes. They returned to the school and unloaded a delivery of timber. The applicant and Lewin left the school at about 2:15 to 2:30 pm. His father, Waina O’Neil, gave evidence that the applicant, together with Lewin, had arrived at Geelong Grammar School at about 12:30 pm and left between 2:00 and 2:30 pm.

Lewin was with the applicant on the night the Kingswood was attacked, although, for reasons that do not presently matter, he was not present during the attack but returned shortly after it had occurred. He drove the applicant and some other people away from the scene and the applicant explained to Lewin what had happened. The applicant wanted to find out who had attacked the car and said that he would bash them.

In evidence in chief, Lewin said that he had collected the applicant at around 1:30 pm on 5 May 1995, and took him to Geelong Grammar School. When they got there, he and the applicant, together with Nathan O’Neil, went for lunch, then returned to the school and commenced unloading a truck. He said that took until around 3:00 pm, after which he dropped the applicant off at his house. That evidence reflected the contents of the first statement that Lewin had given to police. However, his evidence had been significantly altered in a second statement, which had Lewin dropping the applicant back at his home between 1:30 and 2:00 pm.

That evidence having been given, the prosecutor applied for, and was given, leave under s 38 of the Evidence Act 2008 (‘Evidence Act’) to cross–examine Lewin as an unfavourable witness. With that leave, Lewin was questioned by the prosecutor and it was put to him that in a second statement, prepared after referring to some telephone records, he had told police that he had gone to Geelong Grammar School, had lunch, unloaded the truck and then returned the applicant to his home between 1:30 and 2:00 pm, and not after 3.00 pm as he had said in his first statement. He denied that his evidence in chief was false and designed to help the applicant. He also denied driving the applicant to the home of Eccles on that day and denied that the applicant had changed his clothes.

In cross–examination, he was taken to a number of entries in a telephone record and he accepted it was possible that he did not collect the applicant and take him to Geelong Grammar School until around 2:00 pm. He agreed with the cross–examiner who suggested that the different versions were a result of him being ‘in a muddle’.

Belinda Witcombe was the applicant’s girlfriend at the time of the murder. After the incident, but before the trial, she had sustained an acquired brain injury as a result of a motor vehicle accident and was unavailable to give evidence. A statement that she had given to police before the accident was read to the jury.

In that statement she said that she finished work at about 2:30 pm on 5 May 1995 and arrived home at 3:45 pm. At 4:00pm she had a conversation on the telephone with the applicant and, at about 4:45 pm, he rang her back and told her that he would be riding his bike to her house. He arrived at about 5:05 pm and told her it had taken him 18 minutes to ride there from his house. She said this was the only time she had known the applicant to ride a bike.

In a second statement, she had corrected the time at which she finished work to 1:30 pm and gave a different account of what she had done between leaving work and arriving home. She said she had gone to a tattoo shop to arrange an appointment, but had hidden this from her mother. This change to what she had done before arriving home did not alter the time she said that she arrived home, nor did it affect the time that she said the applicant had arrived at her house.

Sandra Williamson, the mother of Belinda Witcombe, said that Belinda had arrived home from work at about 3:40 pm. Ms Williamson had been minding a child of the next door neighbour on that day and gave various times at which she said she saw the applicant. She said the applicant arrived at her house somewhere between 4:15 and 4:30 pm, wearing an Adidas T–shirt and jeans. She said he was not wearing an Adidas jacket that she had previously seen him wearing on many occasions. In cross–examination, it was put to her that she had deliberately falsified the times at which she had seen the applicant and that she had only mentioned the jacket as a result of an article published in the Geelong Advertiser newspaper which had mentioned a jacket being worn by the killer. She denied this and said that she had been asked by the police at the time of her statement to describe what the applicant was wearing and not what he was not wearing.

Simone Stamalos gave evidence that she had seen the applicant regularly in the period up to May 1995. At that time, she had been going out with a friend of his, Nathan O’Neil, for about three years. She said that on the evening of 5 May 1995 she was in a car with Nathan O’Neil and the applicant. A report came on the car radio that a person had been stabbed at the Market Square Shopping Centre. The identity of the applicant was not revealed in the radio report. She said there was a discussion about the incident in the car and the applicant said ‘that’s the little cunt that knifed my car’.

The next day, Stamalos said she asked the applicant whether he had killed him, which he denied, adding that he was at his girlfriend’s house. He said that he had got there at 3:00 pm. She said that she had gone to the police together with Belinda Witcombe on 20 October 1995 and had made a statement to the police on 30 December 1995. She told the police that the applicant had a jacket similar to that which the offender had worn and that she had seen it on top of his cupboard under a blanket. She said she had seen the jacket in the applicant’s bedroom about two months before she had first attended the police station on 20 October 1995.

Eccles gave evidence that, on the afternoon of the day of the murder, she saw the applicant and Lewin arrive at her house and they went straight to her garage, where they locked themselves in. She said that she tried to enter the garage but was excluded. She then saw the applicant and Lewin emerge from the garage and she noticed that the applicant had changed his clothes. They then went to the car and left. She fixed the date as being the same day she found a dead rat in a washing machine she had acquired from the Salvation Army.

In cross–examination, Eccles acknowledged that she first gave a statement to police on 11 May 2017. By that time, she had seen a preview for the Million Dollar Cold Case television program about the murder of Balcombe. At around this time, a reward of $1 million was offered for information leading to conviction. Images of Balcombe’s mother crying were included in the preview. She denied seeing the entire episode. Evidence called from a police officer established that police were contacted by telephone by an anonymous source, who said that Eccles may be able to provide information in relation to the murder. Following that lead, police contacted Eccles for a statement.

Eccles said that the police contacted her and, having discussed the matter with her partner, she agreed to give a statement to the police. She accepted that she had a history of drug use and prostitution. She denied that she came forward motivated by the potential for the reward.

Admissions

Landy was 17 years’ old at the time of the murder. She described herself as being a member of a gang called ‘Syndicate’. She said she knew Balcombe from around town. She had also seen the applicant on a number of occasions and had spoken to him, but they were not friends. She described the applicant as having dark hair, short around the top and long at the back, which she described as a mullet. She recalled him wearing dark or navy blue Adidas tracksuit pants.

She said that, within a couple of days of the murder, she had been in the mall and that the incident involving Balcombe had been the subject of a lot of talk. She said she heard the applicant say ‘I stabbed him in the back, fuck him’.

At the time, she did not tell the police what she had heard or discuss it with anyone else. In 2017, she first made a statement to the police. She said it was her understanding that the applicant had already been convicted of the murder and was in jail. In around March 2017, she saw a reference to the murder on Facebook and that it was now being investigated as a cold case. She said she then watched the Million Dollar Cold Case television program and, the next day, rang Crime Stoppers. She was then contacted by police and made a statement.

In cross–examination, she was unable to provide any context to what was said by the applicant before or after he had admitted to stabbing Balcombe. Landy denied that she was motivated by the reward when she gave a statement to police.

Ansell gave evidence that he was in the Metropolitan Reception Prison, which was part of the Pentridge complex, with the applicant. He said that he asked the applicant ‘how Ricky got bowled’, to which he said the applicant responded ‘I stabbed him’. Ansell had a very extensive criminal record.

The evidence of the applicant

The applicant gave evidence.

In his evidence in chief, the applicant said that on 21 April 1995, after he had been drinking, he got into a fight with someone he did not know, but who he now knows was Balcombe, and hit him once or twice. He accepted in cross–examination that he lied to the police when he told them he had only hit Balcombe once and that it was Adam Moreland who had chased and assaulted Balcombe.

He accepted that when the Kingswood was attacked he was in the driver’s seat and later drove the car. He accepted that he had lied to police by telling them that he had been in the back seat and that the car had been driven by Moreland. His explanation for the lie was that his licence had been suspended and he did not want to admit to a driving offence.

He said that on 5 May 1995 he had gone to Geelong Grammar School together with Lewin and Nathan and Waina O’Neil and, after lunch, had been dropped home between 2:00 and 3:00 pm. His girlfriend, Belinda Witcombe, had called him and he rode his bike to her house. He denied killing Balcombe.

In cross–examination, it was put to him that he had given different versions of his movements on the afternoon of 5 May 1995 in his three interviews with police. In his first interview, on 8 May 1995, he said that on the day of the murder he had arrived at his girlfriend’s place at around 3:00 pm, or ‘probably a bit after’ 3:00 pm.

In his second interview, on 16 May 1995, he said that Belinda had rung him at about 3:40 pm and that he had ridden his bike from his home in Corio, arriving 18 minutes later, just before 4:00 pm. That would have placed him alone, at his home, around the time of the murder.

In his third interview, on 28 March 1996, he said that he arrived home a bit before 3:00 pm and then, 10 minutes later, Belinda rang him and he agreed to come over. He rode his bike, arriving at her place between 3:15 and 3:30 pm.

In cross–examination, he said that at the time of the murder he was at home, probably with his mother, waiting to go to Belinda’s house and that he had left his house shortly after the telephone call. When cross–examined about whether he now said that he might have been with his mother that afternoon at 3:20 pm, his answer was ‘if my mother was home I would have been at home with her. I just can’t remember’.

The applicant’s movements on 5 May 1995 were also the subject of an alibi notice. On 14 May 1997, the applicant filed an alibi notice, which was amended on 24 July 1997 to correct a typographical error. As corrected, the alibi notice stated that on 5 May 1995, between 3:00 pm and 3:30 pm, the applicant was in the company of Lewin. In his evidence, the applicant said that he knew nothing about the alibi notice, and that he had never seen it before and did not know it existed.

The applicant participated in an interview with the Geelong Advertiser on 28 March 2017, in which he said he was on his pushbike from his mother’s house to Belinda’s house at the time of the murder, arriving at around 4:00 pm. A short time later, he said in an interview with Channel 7 that at the time of the murder he would have been on his pushbike on the way to Belinda’s house, or thereabouts.

The applicant said that he did not hear about the death of Balcombe until the police came to his house on 8 May 1995. He denied having any discussion with Stamalos on the day of the murder in which he identified the deceased as the person who had ‘knifed’ the car.

Course of the trial

It is necessary to make brief reference to a number of aspects of the trial.

First, the applicant was originally committed for trial in 1997 and subsequently the prosecution was discontinued. In around 2016, the investigation was reactivated as a cold case. In March 2017, the television programme entitled ‘Million Dollar Cold Case’ was broadcast on Channel 7. The tenor of the program was that the applicant was the key suspect in the murder and that police were seeking further information in order to prosecute him. As noted above, at around the same time, the reward for information leading to a conviction was increased to $1 million.

Four witnesses in the trial came forward and provided statements to police after the broadcast of the program. They were Eccles, Landy, Ansell and Christopher Lawson.

Secondly, the judge acceded to an application to exclude the evidence of Bellia under s 137 of the Evidence Act. In assessing the probative value of the evidence, the judge set out a large number of matters touching on the reliability of Bellia’s evidence and concluded that:

given the history, the evidence of Bellia has very little weight, with his final definitive position provided 22 years after the death of Balcombe. Honest and convincing witnesses can be mistaken when making identifications, however such a high level of inconsistency in this case undermines the honesty of the witness and heavily impacts the reliability of his evidence. In my view, this evidence, taken at its highest ‘is not very high at all’.[4]

[4]R v Hague [2018] VSC 26 [48] (‘Evidence Ruling’) (citations omitted).

On an interlocutory appeal, that decision was overturned on the basis that the course taken by the judge was foreclosed by the decision of the High Court in IMM v The Queen.[5] IMM established that the assessment of probative value must be approached in the same way as the assessment of relevance, that is, on the assumption that the jury will accept the evidence. This Court held that the judge had erred by treating the ‘inherent contradictions’ and ‘internal inconsistencies’ between Bellia’s successive statements to police as relevant to the probative value of the evidence for the purpose of the evaluative task in s 137 of the Evidence Act.[6] That was erroneous because those matters went to the credibility and reliability of the evidence, the very matters which the majority in IMM said must be assumed for the purposes of the s 137 assessment.
[5](2016) 257 CLR 300 (‘IMM’).
[6]DPP v Hague [2018] VSCA 39 [26] (Maxwell P and Beach JA) (‘Interlocutory Reasons’).

Thirdly, at the close of the prosecution case, the applicant applied to the judge to stay the prosecution on the basis that the applicant could not receive a fair trial. The factors underpinning the application were adverse publicity, delay and forensic disadvantage as a result of lost records and exhibits and unavailable witnesses, including Munn. Specific complaint was made about the quality of the evidence under the headings: identification, alibi, description, confession and police evidence. The submissions in relation to identification evidence focused on Bellia, which the judge recognised as being open to substantial criticism.

In relation to the alibi evidence, it was submitted that material such as CCTV footage in the mall had been disposed of or not obtained. In relation to Lewin, it was said that he was denied the opportunity to test his location by reference to telephone tower records, in circumstances where there was evidence concerning telephone calls made to and from his mobile telephone that was adduced to establish the whereabouts of the applicant on 5 May 1995.

It was said that the absence of Belinda and Leigh Witcombe made it difficult to challenge their evidence. In relation to the evidence of Landy and Ansell, it was said this evidence was inherently unreliable. Finally, it was said that the broadcast of the Million Dollar Cold Case program on 22 March 2017 had prejudiced a fair trial.

The judge refused that application and gave reasons for doing so. In relation to each of the matters, the judge said that the issues that were raised could be addressed by strong directions and that they did not warrant a stay of the prosecution. Specifically, in relation to the Million Dollar Cold Case program, the judge noted that at the start of the trial the jury were asked to consider whether they had seen the program in March 2017 and, if they had, whether it would compromise their ability to be impartial. No potential juror sought to make an application to be excused on that basis.

Finally, in his charge to the jury, the judge gave a number of directions about the evidence. They included firm directions in relation to delay, reliability, and incriminating conduct.

In relation to incriminating conduct, the prosecution had served a notice of incriminating conduct under s 20 of the Jury Directions Act2015 (‘Jury Directions Act’), identifying various items of alleged incriminating conduct. Ultimately, the judge gave directions, in unexceptionable terms, identifying incriminating conduct comprising three lies and the evidence of Eccles that the applicant had, together with Lewin, locked himself in her garage and changed his clothes. The three lies were: first, his assertion in his first record of interview that all he did in assaulting Balcombe was hit him once to the face; secondly, that he did not chase Balcombe; and, thirdly, that at the time the vehicle was attacked, he was sitting in the rear seat rather than the driver’s seat.

More generally in relation to the lies, the judge directed the jury that, if they were satisfied the applicant had lied in his evidence, they could use those lies in assessing the applicant’s credibility.[7]
[7]Zoneff v The Queen (2000) 200 CLR 234.

No complaint was made about those directions.

Ground 1 —Abuse of process

By this ground, the applicant asserted that a stay should be granted because the evidence, when looked at as a whole, was so weak that it rendered the trial unfair. It was said that this Court has the jurisdiction and responsibility to oversee the trial process and must intervene, by granting a stay, if to fail to do so would mean that the applicant was convicted after an unfair trial.

In making that submission, the applicant accepted that the evidence adduced at the trial was admissible. It satisfied the basal test of relevance[8] and was not inadmissible under any of the exclusionary rules, including s 137 of the Evidence Act.
[8]Evidence Act s 55.

The attack was on the cogency of the evidence, compounded by delay and forensic disadvantage. It was submitted that the combination of delay, unreliable and unavailable evidence and the influence from the television program, which deliberately implicated the applicant, amounted to an abuse of process that meant the defendant did not and could not receive a fair trial.

The judge rejected the application for a stay. The judge’s decision in that regard was discretionary and any appeal from it attracts the principles in House v The King.[9] No attempt was made to identify an error on the part of the judge by reference to the reasons that he gave. Nor was it submitted that the judge’s decision was not open to him on the material before him. That is reason enough for rejecting ground 1.
[9](1936) 55 CLR 499. See also R v Carroll (2002) 213 CLR 635, 657 [73] (Gaudron and Gummow JJ).

In substance, the applicant submitted that this Court should approach the task afresh and determine whether a stay should be granted. That approach does not accord with principle or the statutory jurisdiction conferred on this Court. This Court does not sit as if at first instance and decide for itself whether a stay should be granted. That would obliterate the necessary distinction between primary and appellate jurisdiction.

In any event, and more fundamentally, the underlying premise that a trial judge, or on an application for leave to appeal, this Court, can stay a prosecution because the evidence, although admissible, is collectively so weak as to be inconsistent with a fair trial must be rejected because it is foreclosed by authority.

First, it must be accepted that the applicant was entitled to a fair trial. Addressing questions of procedural fairness more generally, Gageler J said in Assistant Commissioner Michael James Condon v Pompano Pty Ltd:[10]

Procedural fairness is an immutable characteristic of a court. No court in Australia can be required by statute to adopt an unfair procedure. If a procedure cannot be adopted without unfairness, then it cannot be required of a court.[11]

[10](2013) 252 CLR 38 (‘Pompano’).

[11]Ibid 110 [194].

Further, s 24 of the Charter of Human Rights and Responsibilities Act 2006 provides that a person charged with a criminal offence has the right to have the charge decided after a fair and public hearing.

The judge had the power to stay the trial if the commencement or the continuation of the prosecution would constitute an abuse of process.[12] A permanent stay of a proceeding on indictment is a remedy of last resort, only to be granted in exceptional circumstances.[13] In some cases, delay may require that a prosecution be stayed.[14]
[12]Jago v District Court (NSW) (1989) 168 CLR 23 (‘Jago’).
[13]Ibid 31 (Mason CJ), 49–50 (Brennan J), 56–60 (Deane J), 76 (Gaudron J).
[14]Ibid; Hermanus (a pseudonym) v The Queen (2015) 44 VR 335.

Prosecutorial or investigative misconduct may also lead to a stay of criminal proceedings.[15] Although it was submitted that the informant, Detective Senior Sergeant Iddles, played some impermissible role in the identification parades and participated in the television program in a way that demonstrated his firm belief in the applicant’s guilt, neither matter justified a stay. As to the first point, the evidence showed that proper police practice entailed that police members who are responsible for investigating a crime not play an active role in identification parades. However, it was not demonstrated that Mr Iddles transgressed the proper boundary. Further, the applicant was not identified in any identification parade, so any supposed transgression could not have had an impact. There is no suggestion that the jury members either watched or were impermissibly influenced by the television program.
[15]Strickland (a pseudonym) v DPP (Cth) [2018] HCA 53; Lee v The Queen (2014) 253 CLR 455.

As already observed, the thrust of the submission on ground 1 concerned the asserted unreliability of the evidence. However, the fact that the evidence in support of a charge may be weak or tenuous does not, of itself, give rise to an abuse of process. Nor does it render the trial unfair.

In Doney v The Queen,[16] the High Court held that a trial judge has no power to direct a jury to enter a verdict of not guilty on the ground that, although there was sufficient evidence to sustain a conviction, a verdict of guilty would be unsafe and unsatisfactory.
[16](1990) 171 CLR 207 (‘Doney’).

The Court drew the distinction between a trial judge’s duty to direct a verdict of acquittal if the evidence cannot sustain a guilty verdict, in the sense that there is no evidence upon which a jury could convict, and a power to terminate a trial where the judge considers a verdict of guilt would be unsafe and unsatisfactory.[17]
[17]Ibid 212–3.

The High Court reached its conclusion after recognising:

the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.[18]

[18]Ibid 214.

It followed from the respective roles of judge and jury that ‘if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision’.[19]
[19]Ibid 214–5.

The High Court in Doney expressly rejected a submission that a power should be given to a trial judge, as a reflex of both the power in an appellate court to set aside a conviction on the basis that it is unsafe and unsatisfactory and to stay a prosecution because of an abuse of process.

There is thus no foundation for the submission that this Court has the power, on an application for leave to appeal against conviction, to allow the appeal on the basis that the trial should have been stayed merely because it is now said that the evidence led on behalf of the prosecution was tenuous and/or weak. Of course, this Court has the power to overturn a conviction on the basis that it is unsafe or unsatisfactory in the relevant sense. Nothing is served, however, by trying to re–engineer that power into a power to stay the prosecution. The applicant’s submission that a stay is justified because his complaints involved an error of law was unpersuasive. It failed entirely to grapple with the reasons in Doney.

As was said in Doney:

The power of a court of criminal appeal to set aside a verdict on the ground that it is unsafe or unsatisfactory, like other appellate powers, is supervisory in nature. Its application to the fact–finding function of a jury does not involve an interference with the traditional division of functions between judge and jury in a criminal trial. Nor does the existence in a trial judge or a court of powers to stay process or delay proceedings where the circumstances are such that the trial would be an abuse of process.[20]

[20]Ibid 215.

The applicant sought to distinguish Doney on two bases. First, that changes to the Evidence Act made it easier to admit evidence, including hearsay evidence, and that this correspondingly increased the risk of tenuous evidence going before the jury. Secondly, the issue in Doney was whether the matter should be taken away from the jury by a directed acquittal, whereas the present application concerns a stay.

Neither argument provides a basis to distinguish Doney. The role of the jury to assess the reliability and credibility of evidence is reinforced by the Evidence Act which has, as an organising principle, that, generally speaking, questions as to the reliability or otherwise of evidence are matters for a jury, albeit that a jury would need to be warned by the trial judge about evidence which may be unreliable pursuant to s 165.[21]
[21]IMM (2016) 257 CLR 300, 316 [54] (French CJ, Kiefel, Bell and Keane JJ).

For present purposes, there is no substantive distinction between taking the matter away from the jury and ordering a permanent stay. The reasoning of the High Court in Doney applies with equal force to both. Moreover, the High Court referred to the capacity of a court to stay a proceeding as an abuse of process. It could not have been contemplated that this alternative route remain open on the basis that the evidence was tenuous or weak, but a trial judge could not take the matter away from the jury on the same factual footing.

The constraining effect of Doney and the observations in IMM mean that ground 1 must fail. The judge was correct to refuse the stay. To the extent that there was prejudice to the applicant occasioned by delay or forensic disadvantage, it was addressed by the firm directions given by the judge. Once the evidence was admissible, the trial did not become unfair because the evidence was weak or tenuous. None of the features identified by the applicant had the effect of reversing the onus of proof or of requiring the applicant to prove his alibi.

Ground 2 — Whether conviction unreasonable

Section 276(1)(a) of the Criminal Procedure Act 2009 (‘Criminal Procedure Act’) provides that this Court must allow an appeal against conviction if the appellant satisfies the court that the verdict of the jury is ‘unreasonable or cannot be supported having regard to the evidence’.

The principles in relation to this ground are well established. The question, derived from M v The Queen,[22] is whether this Court considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. The Court must make its own independent assessment of whether, on the evidence, there is a reasonable doubt as to guilt, giving full weight to the jury’s advantage in seeing and hearing the witnesses.
[22](1994) 181 CLR 487. See also Chidiac v The Queen (1991) 171 CLR 432; Palmer v The Queen (1998) 193 CLR 1; SKA v The Queen (2011) 243 CLR 400; and, most recently, Pell v The Queen [2019] VSCA 186.

In M v The Queen, the plurality said:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.[23]

[23](1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).

In explanation of the test, various formulations have been used, including whether the jury was bound to have a reasonable doubt[24] and whether a reasonable jury must have had a reasonable doubt about the accused’s guilt.[25]
[24]Chidiac v The Queen (1991) 171 CLR 432, 451–2 (Dawson J).
[25]Libke v The Queen (2007) 230 CLR 559, 596–7 (Hayne J, Gleeson CJ and Heydon J separately agreeing) (‘Libke’).

Those different formulations do not essay a different test nor suggest a task that is different to that set down in M v The Queen. As this Court said in Tyrrell v The Queen:[26]

Hayne J [in Libke] did not restate the test in terms that were more stringent than that in which it was expressed in [M v The Queen]. Rather, by emphasising that the question is whether the jury ‘must’ have entertained a doubt about the appellant’s guilt, Hayne J gave emphasis to the essential test, to be applied by the appellate court, as to whether it was ‘open’ to the jury to be so satisfied beyond reasonable doubt.[27]

[26][2019] VSCA 52.

[27]Ibid [70].

The advantages that a jury has over an appellate court have often been stated.[28] The jury see the witnesses and have the benefit of observing the evidence emerge over time, giving them the opportunity to assimilate details as they evolve in the trial and, perhaps, more easily reflect on the evidence as a whole. In R v Baden‑Clay,[29] the High Court emphasised the advantages in the following terms:

It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by a jury that the jury is ‘the constitutional tribunal for deciding issues of fact’. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury’s verdict on the ground that it is ‘unreasonable’ ... is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.[30]

[28]See, eg, Whitehorn v The Queen (1983) 152 CLR 657; R v Baden–Clay (2016) 258 CLR 308.

[29](2016) 258 CLR 308.

[30]Ibid 329 [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ) (citations omitted).

In support of ground 2, the applicant advanced the following propositions.

First, the evidence of Bellia was manifestly unreliable given the different versions he had provided and his history of drug use and severe mental illness. More specifically, Bellia’s identification evidence was totally unreliable given the shift in his evidence and because he had been prompted by other people referring to the applicant’s name, both when he returned to the Golden Cue shortly after the murder and at the showgrounds.

As to the first aspect, it was noted that, at one point in his evidence, he said that on the day of the murder, or very shortly thereafter, he recognised the applicant as the person in the Kingswood. Later in his evidence, he said that it was not until he saw him at the showgrounds that he realised that the person in the car and the murderer were the same person. It was said this blurred evidence of identification and recognition.

Secondly, the applicant was not identified in either of the two identification parades. Bellia, Todorovska, Savas, Huynh, and two other witnesses, Susan Dangerfield and Pauline Butterworth,[31] gave evidence that they participated in an identification parade but none of them identified the applicant.
[31]The name of the witness is provided as Pauline Butterworth in some parts of the evidence, and Pauline Butterfield in others.

Thirdly, the confession evidence was inherently unreliable and its admission tainted the trial. Both Landy and Ansell had motives to lie and their evidence was vague and unconvincing. Landy could not provide context for the confession and could not recall anything else the applicant said. Ansell had a lengthy criminal history, including for dishonesty offences, and his use of prison jargon rang hollow.

Fourthly, the delay caused significant prejudice and resulted in witnesses not being available and an inability to verify the evidence of Lewin as to the time they left the school by reference to call records and telephone tower data.

Having considered the totality of the evidence, we are not persuaded that the verdict of guilty is unreasonable, or that it cannot be supported.

Dealing first with the evidence of Bellia, it is understandable that the applicant focused on the weaknesses in his evidence. He was far from a perfect witness. In his ruling to exclude the evidence under s 137, which was reversed on appeal, the judge listed a number of significant problems with the evidence of Bellia and concluded that, taken at its highest, it was ‘not very high at all’.[32] On the interlocutory appeal, Priest JA described his evidence as ‘unconvincing and weak’ and ‘subject to a plethora of infirmities’.[33]
[32]Evidence Ruling [48] (citations omitted).
[33]Interlocutory Reasons [51].

There were a number of obvious reasons for the jury to approach his evidence with great caution. They were directed by the judge to do so.

However, the evidence established that he had an opportunity to observe the applicant on three occasions: at the attack on the Kingswood, at the time of the stabbing and at the Geelong showgrounds.

Moreover, his explanation for the false description he gave to police on the day of the murder and his failure to point out the applicant at two parades was that he was terrified. Given that he was 17 years of age, had seen his friend brutally stabbed and lived in an environment where cooperation with police was despised, his explanation for not telling the truth was capable of being accepted by the jury.

The description he gave to police which matched Anson, a person who could not have been the murderer, was not a mistake. It does not suggest that he was incapable of describing the assailant, but rather was deliberately giving the police a false lead. That significantly undermined his credibility as a witness, but it did not preclude the jury from accepting that he had observed the applicant and could identify him as the killer.

It must be accepted that the evidence of Bellia was weak, but, importantly for present purposes, the prosecution case did not stand or fall on the testimony of Bellia and it was open to the jury to consider Bellia’s evidence in light of all of the evidence before them. In other words, it would be a mistake to proceed on the basis that his evidence was worthless. The jury were entitled to assess it in light of the other evidence that implicated the applicant, including by reason of motive and opportunity.

The evidence that placed the applicant within the vicinity of the murder scene at, or very near to, the time of the attack was important. It came from two witnesses, and there was no basis to suggest collusion between them. The applicant was hampered in his ability to test the evidence of Leigh Witcombe, but it was admissible and remained powerful evidence. It came from someone who knew the applicant well and was of a chance encounter. It was limited in its scope but none the weaker for that.

Similarly the jury could accept the evidence of Christopher Lawson that he had seen the applicant in the mall. Lawson came forward after seeing the Million Dollar Cold Case television program and the jury would have taken that matter into account in assessing the evidence.

Given that the applicant had given differing accounts of his movements on 5 May 1995, it was open to the jury to reject his evidence. His admitted lies weakened his credibility. His explanation of not having seen the alibi notice which placed him with Lewin was implausible. Further, he gave three different versions of the time at which he said he arrived at his girlfriend’s house.

In addition, Lewin, who had been nominated as an alibi witness, gave two different accounts. In his first statement, he said that he was with the applicant and dropped him off at his house at around 3:00 pm. In a subsequent statement, he told police that he dropped the applicant home before 2:00 pm.

Our own assessment of the applicant’s evidence is that it was entirely unreliable. We are conscious, of course, that the rejection of his evidence did not provide affirmative evidence of his guilt. However, the specific lies in relation to his attack on Balcombe and his attempts to place himself in the back seat of the Kingswood were deliberate attempts to diminish evidence of motive. Moreover, to the extent that his evidence was adduced to provide positive evidence that exculpated the applicant, it was most unpersuasive.

It was well open to the jury to conclude that there was no credible evidence from the applicant or Lewin as to where the applicant was at the time of the murder. Although the rejection of that evidence would not have permitted the jury to reach a conclusion of guilt, it meant that, in assessing the evidence of the two witnesses who said they saw the applicant at the shopping centre at the relevant time, there was no credible contradictory evidence.

There was also the evidence of Stamalos that she was with the applicant on the night of the murder and that, after hearing a radio report referring to the incident, the applicant identified the victim by referring back to the attack on the Kingswood. This was in a context where the applicant said that he did not know about the killing until the police contacted him on 8 May 1995.

Further, the evidence that the applicant had linked the attack on the Kingswood to his earlier assault on Balcombe, and his anger and desire for revenge was powerful. Lewin, who made obvious attempts to tailor his evidence to assist the applicant, nevertheless gave evidence that the applicant had told him that he wanted to assault the person responsible for the attack on the car. To similar effect, another witness, John Nelis, who owned the Kingswood, said that the applicant was angry and said that they should ‘bash’ the people who had attacked the car. The applicant denied being angry after the attack on the car and sought to downplay the extent of his assault on Balcombe and his role in the incident involving the Kingswood. The jury were entitled to reject that evidence and accept that the attacker knew the victim, and that the attack was in revenge for the earlier wrong done to the applicant. The violent nature of the stabbing was consistent with the evidence that showed the applicant as angry and desirous of revenge.

For our part, the evidence of the confessions to Landy and Ansell was highly problematic. They both stood to profit from their evidence. Ansell was an entirely compromised witness. The jury were given very firm directions about the caution that they needed to apply in considering the evidence of admissions. Specifically, in relation to Ansell, the judge reminded the jury that he had a very substantial 43 page criminal history, he had a motive to distort the truth or fabricate evidence and of the ease with which oral admissions can be fabricated. Having regard to the evidence as a whole, even if the testimony of those two witnesses was rejected outright, we would still be satisfied that the verdict is not unsafe or unsatisfactory.

The applicant had no onus but, in considering the evidence as a whole, it is relevant to have regard to the defence hypotheses, and there were a number of them. He argued that the killer may have been Asian or may have been Anson, being the person identified by Bellia to police on the day of the killing. Neither theory stood up to any scrutiny. It was put to Huynh that he was the killer, yet there was no evidentiary foundation at all for such a suggestion. Of course, the defence was under no obligation to point to an alternative killer, but, having done so, it is permissible to test the verdict by having regard to these theories.

Undoubtedly, there were problems with many of the prosecution witnesses. The immediate environment in which Balcombe lived at the time he died was not conducive to producing witnesses of impeccable recall. A number of the witnesses were engaged at the time, and since, in criminal behaviour of varying degrees of seriousness. Many gave different or incomplete accounts or failed entirely to cooperate with police in the initial stages of the investigation. Further, the delay in the trial meant that a number of witnesses were not available and their statements were read to the jury. In addition, the passage of time clearly affected their memories on matters of detail.

However, this was, at least in part, a circumstantial case. When viewed in its entirety, we consider that it was a strong case. We are not left in doubt as to the correctness of the jury’s verdict. At the very least, it was reasonably open to the jury to convict the applicant.

It follows that we are not persuaded that the verdict is unreasonable. Ground 2 must be rejected.

Ground 3 — Fresh evidence

In support of this ground, the applicant identified four separate ‘representations’, or other items of evidence, which, he submitted, constituted ‘fresh evidence’ of a kind that vitiates this conviction.

The ‘representations’ upon which the applicant relied were:

(a)an alleged ‘admission’ by a former police officer, Detective Senior Sergeant Ron Iddles, in a media interview after the conclusion of the trial to the effect that he had ‘influenced’ the identification by Paul Bellia, a key witness at the trial, of the applicant as Balcombe’s killer.
(b)supposed ‘confession’ evidence on the part of Nick Munn to Rodney Whitehand, who made two statements to police in 2018 (in relation to the prosecution of Munn for the murder of Jason Fry), but who said that Munn had admitted to having killed Balcombe. Munn was also said to have told Whitehand that Christopher Lawson, an important prosecution witness, had given false evidence of having been present at the scene of the murder of Balcombe.
(c)supposed ‘confession’ evidence on the part of Nick Munn to James Middleton, who swore an affidavit alleging that in 2003, Munn had confessed to him that Munn had killed Balcombe.
(d)evidence that the applicant had been subjected to a ‘scenario’ investigation by police in an unsuccessful effort to persuade him to confess to Balcombe’s murder.

There was no substance to either item (a) or (d). We shall deal with them briefly.

(a) Iddles

Regarding item (a), the applicant relied on a podcast interview that The Geelong Advertiser had conducted with Detective Senior Sergeant Iddles. During that interview, Iddles said the following regarding Bellia’s identification of the applicant as Balcombe’s killer:

I have another witness at the crime and that’s Paul Bellia — he later went on to tell me that the person responsible was seen at the Geelong show and that was Karl Hague.
…
Karl would say that I wanted him from day one — the name Karl Hague means nothing to me … It’s not until we do two identification parades, he’s not picked up, then I have a conversation at some time with Paul Bellia who says: ‘Look, I was at the Show. I saw a person. That person was identified to me as Karl. That’s the person who I saw stab Ricky.’

When asked specifically about Bellia’s identification and involvement in the case, Iddles responded as follows:

INTERVIEWER: Paul Bellia is an interesting character … what did you make of him? Obviously you first interviewed him on the night of the killing, would that be right?
IDDLES:Yeah I spoke to Paul on the night, he was somebody who I would say was a follower … He was controlled, and I think to some extent that probably went against his own values because eventually he rang me and I came to Geelong and he said: ‘Look, I’ve told you some things in the past that aren’t true and now I want to tell you the truth’, and he did. He sat down and he made a statement. I didn’t ring him, he rang me …
INTERVIEWER: There’s a real sense that … [Bellia] had this internal struggle between wanting to do the right thing but then also his own fear and his loyalty to his gang who were telling him not to do anything.
IDDLES:Yeah I think there was an internal struggle … I think honestly, deep down, he could have — there’s no doubt I believe — identified Karl on both occasions …
I think on both occasions he could have identified him, which would have changed the whole course of the investigation early on …

At no point in the interview does Iddles acknowledge (expressly or otherwise) having sought to influence Bellia in the process of identification.

The respondent, quite correctly, submitted that there was no basis whatever to support the contention that Iddles had done anything untoward by way of influencing Bellia to pick out the applicant as the person who murdered Balcombe. It was submitted that nothing that he had said in the course of that media interview lends the slightest support to the applicant’s proposition that he had exercised improper influence. Therefore, the respondent submitted that there was no fresh evidence. We agree.

(d) The scenario evidence

Item (d), which concerns the evidence of the applicant having taken part in what is generally described as a ‘scenario’ investigation, could not possibly meet the threshold requirements for fresh evidence on appeal. The applicant knew full well that he had been subjected to various blandishments in an effort to persuade him to confess to the murder of Balcombe. If he chose not to inform his legal representatives of that fact, or if having informed them of the ‘scenario’ that he had taken part in, they chose not to adduce that evidence in the trial, that was a matter for the defence. It cannot be said that the ‘scenario’ material could not, with reasonable diligence, have been discovered.

That leaves items (b) and (c).

(b) Whitehand

Turning first to Whitehand, the applicant relied upon two statements made by him to police. The first was dated 15 April 2018, and the second was dated 28 June 2018.

The first statement concerned the murder of a man named Jason Fry in April 2018. Soon afterwards, Whitehand spoke to police, implicating Munn as Fry’s killer. Whitehand said that he had rented a shed in North Shore in order to pursue both his trade as a motor mechanic and his hobby of restoring and building cars. He spent a great deal of his spare time at the shed.

Whitehand said that Fry occupied an adjoining shed. At the time of his statement, he had known Fry for approximately one year. Fry lived in the shed and also built and restored cars. On the very week Whitehand gave his statement, he had seen some of Fry’s ‘stuff for sale’ on Facebook. However, he acknowledged that he had difficulty remembering times and dates because of past health issues, which had affected his memory.

Whitehand said there was a caravan on the property in the front corner of Fry’s yard. An old school friend of Fry’s was subletting the caravan, and paid rent. Fry was always complaining that the occupant of the caravan was behind in his payments. According to Whitehand, Fry had asked him for some money around two weeks prior to his death, telling Whitehand that he was in debt to the tune of about $5,200. He told Whitehand that if he could not raise that sum, he would be evicted.

Whitehand said that he first saw Munn at Fry’s property late–March or early‑April 2018. He had not met Munn previously, but was introduced to him by Fry as an ‘old mate.’

Whitehand said that he had bumped into Munn again a couple of times at Fry’s property over the previous two weeks. He believed that Munn had been staying there, occupying Fry’s shed. There was only one bed in that shed. Whitehand said that he last saw Fry on the weekend of 7 and 8 April 2018. He entered Fry’s shed and saw both Munn and Fry in the part of the shed used as a bedroom. Munn had some kind of injury to his leg, which he wrapped in some form of gauze, or tape. He spoke to Munn and Fry for about five minutes. He said ‘there was nothing out of the ordinary about our short conversation; [Fry] asked me again, just quietly, if I could help him with his rent.’

Whitehand did not see Fry again after that time. He had, however, seen Munn at the property ‘a handful of times’ following that weekend visit. On Wednesday 11 April 2018, or thereabouts, Whitehand realised that the caravan had been moved from the yard out onto the street. The gates to Fry’s shed were locked. That night, Whitehand went to his shed straight after work. He said he was there until about 4.30 am the following morning. He spoke to the occupant of the caravan earlier in the evening. Munn had been there as well.

The occupant said that Munn had been taking Fry’s things from the property, and that Fry had ‘done a runner.’ He told Whitehand that Fry had said that they could take whatever they liked.

According to Whitehand, Munn introduced himself as ‘Nick Munn.’ The statement proceeds as follows:

I recognised his name and I had a cold feeling straight away.
I recognised his name as having a connection with the Ricky Balcombe case, I have been following this case because I’m a mate of Karl Hague’s and the matter has been in the papers and I have sat in court one day to support Karl.
I already thought he is probably no good, and then he talked about starting fights or stabbing someone or something. He wasn’t telling me anything specific but he was talking himself up as a really handy fighter. He said he always stabs people in three specific spots so that they bleed out pretty quickly. And he seemed to be pretty knowledgeable. I can’t remember the specific spots that he said.
We didn’t go into the shed and take anything.
I didn’t try to get in touch with Jase or anything. I have his phone number but we don’t really text or anything.

Later in his statement, Whitehand said that on the morning of Sunday 15 April 2018, he arrived at Fry’s shed at around 9:00 or 10 am. The occupant of the caravan was there. He told Whitehand that Munn had been at the shed, taking things. Whitehand then went into his own shed and reviewed several hours of his CCTV footage. On that footage, he observed Munn and another male apparently cutting the padlock to Fry’s shed with a grinder. Munn was going back and forth between Fry’s trailer at the property, and inside the shed.

Turning then to the first of the four threshold matters set out in R v Nguyen, the question that arises is ‘could the evidence of Whitehand and Middleton respectively, with reasonable diligence, have been discovered at, or before, the trial?’

The respondent conceded that Whitehand’s evidence was ‘fresh’, in the relevant sense, and therefore met the first condition for its being placed before this Court. No such concession was made with regard to Middleton. Nonetheless, we are prepared to proceed on the basis that even acting with reasonable diligence, the applicant could not have been aware, during the course of his trial, of what either of these two witnesses would be prepared to say.

The second threshold requirement is that the fresh evidence be relevant and admissible. There can be no doubt that the evidence of both Whitehand and Middleton meets the test of relevance,[42] since it constitutes, at least in part, a confession on the part of Nick Munn that he, and not the applicant, murdered Balcombe.
[42]See generally, Evidence Act, ss 55, 56.

With regard to admissibility, the matter is somewhat more complex. At common law, third party confessions were inadmissible as an exception to the hearsay rule.[43]
[43]Bannon v The Queen (1995) 185 CLR 1. See also, Sussex Peerage Case (1844) 11 Cl & Fin 85; 8 ER 1034, 1044–5; In re Van Beelen (1974) 9 SASR 163, 206–7, 209; R v Blastland [1986] AC 41, 52–3.

It may be that senior counsel for the applicant in the present case presented her argument to this Court on the footing that this common law position still applied, despite the enactment of the Evidence Act. For that reason, she argued that the evidence of both Whitehand and Middleton was not being tendered, primarily, to prove the truth of the representations ostensibly made by Munn to those witnesses. Rather, had their statements been available at trial, she could have pressed more vigorously for Munn to be called so that she could put those statements to him in cross–examination. In that sense, the evidence of both Whitehand and Middleton was said to be ‘original’, rather than hearsay, and the failure of the prosecution to have produced Munn at the applicant’s trial was said to have given rise to a substantial miscarriage of justice, pursuant to s 276(1)(c) of the Criminal Procedure Act.

This somewhat convoluted analysis lacked any real substance. It could hardly be expected that, had Munn been called, and the statements of both Whitehand and Middleton put to him, he would have acknowledged their truth and admitted to having confessed to Balcombe’s murder. Indeed, it would be fanciful to think that he would have done so.

Senior counsel was also concerned about the fact that, had Munn refuted the evidence of Whitehand and Middleton, she would have been prevented under what used to be called the collateral evidence rule from calling these witnesses to prove that the confessions had been made. That concern may or may not have been misplaced.

There is a much simpler answer to the question of the admissibility of this evidence. Section 59 of the Evidence Act is a statutory form of the common law rule against hearsay, requiring the exclusion of hearsay evidence. Section 60 provides that the hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact. Senior counsel for the applicant sought to bring the statements of Whitehand and Middleton within that provision.

Section 65 makes provision for the admissibility in criminal proceedings of what would otherwise be inadmissible hearsay evidence. Section 65(2)(c) provides that the hearsay rule does not apply to evidence of a previous representation given by a person who saw or heard the representation being made if that representation was made in circumstances that ‘make it highly probable that the representation is reliable.’ Section 65(2)(d) provides a further exception to the hearsay rule in circumstances where the representation was ‘against the interests of the person who made it at the time it was made’, and in ‘circumstances that make it likely that the representation is reliable.’

It seems highly unlikely that either s 65(2)(c) or (d) could be invoked to render Munn’s supposed confessional statements admissible as evidence of the truth of that which was asserted. It would be hard to argue that those statements were made in circumstances that either make it ‘highly probable’[44] that the statements were reliable (s 65(2)(c)), or even likely that they were reliable (s 65(2)(d)).[45]
[44]Conway v The Queen (2000) 98 FCR 204, 244 [146], albeit in the context of an attempt by the prosecution to lead evidence as an exception to the hearsay rule.
[45]R v Suteski (2002) 56 NSWLR 182, 196 [94]; R v Sio (2013) 234 A Crim R 508, 516 [53].

However, s 65(8) is an altogether different proposition. That subsection relevantly reads as follows:

(8) The hearsay rule does not apply to—
(a)evidence of a previous representation adduced by an accused if the evidence is given by a person who saw, heard or otherwise perceived the representation being made …

It seems tolerably clear that this subsection was intended to enable evidence to be led of third party confessions provided, of course, that the person giving that evidence saw or heard the confessional statement being made. Section 67 provides a mechanism whereby reasonable notice must be given of an intention to rely upon s 65(8). Of course, even if such evidence is led before the jury, the judge may be required to give an unreliability direction, in accordance with s 32 of the Jury Directions Act. That direction will identify the factors that render the evidence potentially unreliable, and the need for caution in determining whether to accept the evidence and the weight to be given to it.

In short, the effect of s 65(8) is that first–hand hearsay, whether in oral or documentary form, is not excluded by the hearsay rule when such evidence is adduced by the defendant in a criminal proceeding. That is so, of course, provided that the person who made the previous representation is not available to give evidence.

Munn was listed on the indictment to be a witness in the applicant’s trial. He made himself scarce, and could not, therefore, be called to give evidence. He was, relevantly, ‘unavailable.’

Munn has since been tried for the murder of Fry, and convicted of that offence. He would now be ‘available’ to be called if there were a retrial of the applicant. Once again, however, the prospect that he would agree to the suggestion that he was Balcombe’s killer, and that he had confessed to that murder on at least two occasions can only be regarded as fanciful.

The third requirement is that the ‘fresh evidence’ is credible. As regards Whitehand, that requirement is plainly not met. Whitehand’s evidence before this Court, perhaps not surprisingly, was singularly unimpressive. Our impression was that his account was largely fabricated, in a somewhat desperate effort to assist the applicant. He provided no satisfactory explanation as to why, when he made his first statement to police on 15 April 2018, he made no mention of Munn’s confession. His list of prior convictions was lengthy, and further diminished his credibility.

Middleton appears to have simply avoided service. In these circumstances, we would give little or no credence to what he said in his affidavit of September 2018.

In much the same vein, this takes us to the fourth threshold requirement for fresh evidence, namely that if it had been put before the jury, there would have been a significant possibility that the jury might have acquitted.

That threshold requirement was not met. In argument before this Court, senior counsel for the applicant submitted that had the evidence of Whitehand and Middleton been put before the jury, and Munn called by the prosecution, the applicant could, somehow, have adduced evidence, on a tendency basis (Munn having a tendency to kill using a particular arm movement with a weapon), arising out of Munn’s having murdered Fry. That clearly would not have been admissible.

It was submitted on behalf of the respondent that neither Whitehand or Middleton could provide credible or cogent evidence. Nothing that they might say could conceivably indicate that a substantial miscarriage of justice had occurred.

The respondent noted that it had not been the Crown’s choice not to call Munn in the applicant’s trial. He simply could not be located. There had been no application made on behalf of the applicant to adjourn the trial in order to secure his attendance at court.

As regards much of what was now sought to be relied upon from Whitehand’s evidence, it really came from Fry. In that sense, it was second–hand, and not first–hand hearsay. The theory that Munn’s motive for murdering Fry had been to prevent him from seeking the reward arising out of Balcombe’s murder was essentially conjecture on the part of Whitehand. The respondent drew attention to the fact that in Whitehand’s 000 call, he drew no attention to any supposed confession by Munn. Nothing along those lines emerged until Whitehand’s second statement on 28 June 2018. By that stage, Whitehand had already visited the applicant in prison. We were invited to put two and two together, and arrive at the appropriate conclusion.

Finally, the respondent noted that a number of witnesses at the applicant’s trial had testified that Munn was inside the Golden Cue at the precise moment that Balcombe was murdered. Indeed, Munn was the very person to whom Bellia had reported the stabbing. Many witnesses, all of whom knew Munn, gave evidence, and none suggested that it was he who was the assailant. In effect, there was no evidence that pointed to Munn as the person who killed Balcombe, and it made no sense that he would have done so. Balcombe and Munn were friends. Indeed, Balcombe was Munn’s best friend. On the night before Balcombe died, Munn had stayed at Balcombe’s grandmother’s house. On the night after Balcombe was murdered, Bellia stayed at Munn’s mother’s home. None of this would make any sense if Munn were, in fact, the person who murdered Balcombe.

With regard to Middleton, the respondent put before the Court a document referring to his comprehensive prison history. It seems that Middleton was in prison throughout almost all of 2003, having been released from custody only in December of that year. Finally, it was noted that the applicant and Middleton had been together in the same prison between May and September 2018. The Court was invited to draw the appropriate inference.

Conclusion re Ground 3

The fresh evidence upon which the applicant now seeks to rely, the confessional statements made to Whitehand and Middleton, does not meet either the third or fourth of the threshold requirements for the reception of such evidence on appeal, as discussed at [207] of these reasons. The evidence lacks ‘apparent credibility.’ Moreover, if this evidence were to be placed before a jury, there is no ‘significant possibility’ that it would affect the outcome of the trial. Accordingly, the fact that this evidence might now be available does not mean that the applicant, by having been convicted, suffered a substantial miscarriage of justice.

The sentence appeal

The applicant seeks leave to appeal on the ground that the sentence is manifestly excessive. To succeed, he must establish that the sentence was wholly outside the range of sentencing options available to the judge.

The judge’s sentencing remarks

Having referred to the maximum penalty of life imprisonment,[46] the sentencing judge noted the seriousness of the offending. He referred to the fact that the applicant sought out Balcombe and brazenly stabbed him in a public place at a time when there were a large number of people in the vicinity who were witnesses. The judge also noted that at the time, Balcombe was five years his junior, with the fatal stab wounds being inflicted when Balcombe had no opportunity to defend himself, and with the applicant then fleeing the scene. The judge described the offending as a deliberate and callous stabbing which the applicant had thought about for some time.[47]
[46]Crimes Act 1958 (Vic) s 3.
[47]R v Hague [2018] VSC 323 [25] (‘Sentencing Reasons’).

Next, the judge referred to the victims’ impact statements and noted the extended trauma each of them had endured, with the effect of the applicant’s actions to remain with the victims for the rest of their lives.[48]
[48]Sentencing Reasons [29].

The judge then considered the applicant’s personal circumstances.[49] The applicant was in his twenties at the time he committed the offence and was 44 at the time of sentencing. He had relatively few prior convictions at the time he committed the crime. The judge noted that the applicant had a difficult childhood. At the age of eight, the applicant was diagnosed with Attention Deficit Hyperactivity Disorder. He had a short course of treatment for this condition in childhood which was stopped due to the side effects. His treatment recommenced in adulthood. The judge noted that the applicant was still affected by the condition and was also suffering anxiety and depression.
[49]Sentencing Reasons [30]–[36].

The applicant told a consultant psychologist that he was a victim of sexual interference when he was nine years old. He suffered a number of tragedies and losses (for example, a friend’s suicide).

The applicant’s secondary education finished at year 11, when he obtained (but did not complete) an apprenticeship as a structural aircraft maintenance technician. He struggled to maintain employment working in various skilled and unskilled positions. More recently, he held self–employed positions. The applicant completed vocational courses in occupational health and safety and obtained licences in relation to earthmoving equipment. He held a pilot’s licence for about 12 years.

At the time of sentencing, the applicant had two children, aged 14 and 22, and maintained a good relationship with them. His relationship with their mother lasted about eight years. He was then involved in another relationship. That concluded before the relationship he was in at the time of sentencing began. The judge accepted that this latest relationship was a committed one.

The judge assessed the applicant’s prospects for rehabilitation as guarded at best, although he acknowledged the apparently stable nature of the applicant’s circumstances at the time of his most recent arrest. In making his rehabilitation assessment, the judge took into account the applicant’s criminal record.[50] The applicant had convictions for a number of offences before he committed the offence of murder. Those convictions began in 1990. The offences included burglary, theft, street offences, traffic offences, damage to property, possessing a prescribed weapon and receiving stolen goods. There were other offences committed after the murder in 1995.
[50]Sentencing Reasons [37]–[39].

The judge also set out the procedural history and referred to the delay and its effect.[51] As noted above, the applicant was charged in 1996. He was committed for trial on 8 May 1997, but the trial did not proceed at that time. Another indictment was filed in 2017 and the trial took place in 2018. The judge noted that the applicant had always maintained that he was not the person who murdered Balcombe and that since the commission of that crime, his criminal record indicated that he had not been rehabilitated. There was no remorse shown by the applicant.
[51]Sentencing Reasons [40]–[45].

Another aspect of delay was referred to by the judge – consideration of sentencing practices at the time of the offence in contrast to when this sentence was imposed. In this regard, the judge quoted from Stalio v R:[52]

It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.[53]

[52](2012) 46 VR 426.

[53]Ibid 441 [54] (Neave and Osborn JJA and King AJA).

Noting their limited use because of their generality, the judge observed that the broad figures provided by the Sentencing Advisory Council suggested that head sentences for murder have increased by a factor of four or more years since 2006.[54] The judge stated that to the extent he could, he had taken that into account.
[54]Sentencing Advisory Council, Sentencing Trends for Murder in Victoria 1998–99 to 2003–04 (Sentencing Snapshot No 4, 9 September 2005) (‘September 2005 Snapshot’); Sentencing Advisory Council, Sentencing Trends for Murder in the Higher Courts of Victoria 2011–12 to 2015–16 (Sentencing Snapshot No 198, 27 April 2017). Note: there are no Sentencing Snapshots prior to the September 2005 Snapshot, which takes into account sentencing trends for murder in Victoria between 1998–99 and 2003–04.

In sentencing the applicant, the judge was not satisfied beyond reasonable doubt that the applicant’s intention at the time he stabbed Balcombe was to kill him as opposed to cause him really serious injury.[55] The judge concluded:

Nevertheless this was a serious stabbing of a teenager, that occurred in broad daylight and in a well–populated area. It is clear that principles of denunciation and general and specific deterrence must be taken into account. The violence you resorted to must be denounced and condemned by this Court. General deterrence should be taken into account as it should be acknowledged that exacting revenge is never acceptable. Whilst I note it would be open to me to reduce the weight given to general deterrence because of the effect of delay, I decline to do so here on the basis, as I have already said, that you have shown little prospect for rehabilitation in the subsequent years. You also need to be deterred yourself from any repeat of such behaviour in the future and the principle of specific deterrence remains significant.[56]

[55]Sentencing Reasons [28], [48].

[56]Sentencing Reasons [49].

The judge sentenced the applicant to 26 years’ imprisonment with a non‑parole period of 20 years.

The applicant’s contentions

The applicant’s case is that because an intention to kill was not established, the sentence was too long for an unplanned opportunistic stabbing with an intent to cause serious harm by a relatively young man with Attention Deficit Hyperactivity Disorder who had been the subject of a gang related attack. The applicant submitted that there is a distinction between retaliation and reaction which should have mitigated the sentence further. On the hearing of the application, senior counsel for the applicant stressed the youthfulness of the applicant at the time of the offence and the spontaneity of the offence. Counsel submitted that at the time the offence was committed, the applicant would have been subject to a sentence that was significantly less.

The respondent submitted that this was a serious example of murder and that the judge had taken into account all relevant matters and his discretion had not miscarried. The respondent noted that the applicant was not entitled to any discount for pleading guilty. The respondent noted that the judge found that the murder occurred in circumstances of retaliation not reaction. As to youth as a mitigating factor, the respondent submitted that the seriousness of the crime meant that no significant reduction in sentence was warranted.

Conclusion on sentence

The sentence imposed was within the sentencing options available to the judge. This was a serious example of murder, committed as revenge (albeit that it was not established that the applicant intended to kill Balcombe; rather only that he intended to seriously harm him). Revenge was taken days after the attack on the applicant in the car. The action taken by the applicant in stabbing Balcombe was not an immediate reaction to the attack on him. While it was not planned (in the sense that the applicant did not seek out Balcombe on that particular day at that particular time), the attack was not spontaneous either. General and specific deterrence loomed large in the exercise of the sentencing discretion.

True it is that the applicant was only 21 at the time of the murder. Had the crime not been so serious, his relative youth might have had more of a mitigating effect in respect of his moral culpability.[57] Other matters that may be taken into account because of the youthfulness of an offender (such as rehabilitation and that a term of imprisonment in an adult prison may be more arduous for a young offender) have no role in this case.[58] At the time of sentencing, the applicant was 44 years old. As noted, the judge assessed the applicant’s prospects of rehabilitation as guarded. The judge was right to observe that the applicant’s criminal record (both before and after the offending) raised significant doubts in relation to his ability to rehabilitate.
[57]Azzopardi v R (2011) 35 VR 43, 55–56 [37]–[40] (Redlich JA, Coghlan and Macaulay AJJA separately agreeing) (‘Azzopardi’); Director of Public Prosecutions v Lawrence (2004) 10 VR 125, 132 [22] (Batt JA, Winneke P and Nettle JA separately agreeing).
[58]Azzopardi, 53–54 [34]–[36].

The judge was clearly alive to the issue of sentences for murder having increased since the offence was committed. Neither his reasons for sentence, nor the sentence imposed, give a basis for concluding that he did not take this matter into account in an appropriate way. The applicant was not to be sentenced on the hypothetical basis that he was being sentenced at the time the offence occurred. As already observed, he was not to be sentenced in 2018 on the basis that he was 21 years of age.

The sentencing practice that applied to offending of this kind at the time of the offence is relevant to the extent that it can be ascertained. Like the judge, our own assessment is that current sentencing practice for murder reveals that longer terms of imprisonment are now imposed when compared with comparable offending in the mid–1990s. The applicant was entitled to some moderation in sentence on that account. However, just as current sentencing practice cannot control the sentencing discretion in a particular case and does not cap and collar the sentence, past practice cannot have a greater or more controlling effect.[59]
[59]Director of Public Prosecutions (Vic) vDalgliesh (a pseudonym) (2017) 262 CLR 428.

Indeed, the judge’s reasons explain all of the matters taken into account by him. There can be no legitimate criticism that the sentence that he arrived at was not open to him. The sentence imposed was not manifestly excessive.

The application for leave to appeal in relation to sentence will be refused.

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[2019] VSCA 218

3 October 2019