Kamalasanan v The Queen; Sam v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0139

S APCR 2019 0136

ARUN KAMALASANAN	Applicant
v
THE QUEEN	Respondent

S APCR 2018 0146

SOFIA SAM	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2019
DATE OF JUDGMENT:	16 August 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 180
JUDGMENT APPEALED FROM:	DPP v Kamalasanan & Sam (Unreported, Supreme Court of Victoria, Coghlan JA, 21 February 2018 (Conviction)); [2018] VSC 340 (Sentence)

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CRIMINAL LAW – Appeal – Conviction – Murder – Deceased poisoned with cyanide – Deceased’s wife and friend in romantic relationship – Prosecution case that deceased’s wife and friend complicit in murder – Admissions by deceased’s friend to covert police operatives of putting sleeping pills in avocado shake and cyanide in orange juice fed to deceased in his sleep – Whether wife suffered substantial miscarriage of justice as a result of joint trial – Whether substantial miscarriage of justice resulting from judge’s comment to jury – Whether verdict unsafe and unsatisfactory – Leave to appeal refused.

CRIMINAL LAW – Appeal – Sentence – Applicant Kamalasanan sentenced 27 years’ imprisonment with non-parole period 23 years – Applicant Sam sentenced 22 years with non-parole period 18 years – Whether unacceptable disparity – Whether Kamalasanan’s sentence manifestly excessive – Appeal allowed – Kamalasanan resentenced to 24 years’ imprisonment with non-parole period 20 years.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Kamalasanan	In person (Conviction) Ms C A Boston (Sentence)	Giorgianni & Liang (Sentence only)
For the Applicant Sam	Mr P J Hannebery QC with Ms A J Burnnard	Victoria Legal Aid
For the Respondent	Ms K Judd QC, DPP with Ms E Ruddle	Mr John Cain, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
WEINBERG JA:

Introduction

At 9.14 am on 14 October 2015, emergency services were called to a residential unit in Epping that Sam Abraham shared with his wife, Sofia Sam, and their son. Mr Abraham was unconscious and could not be roused. Paramedics arrived at 9.27 am, but despite their efforts, Mr Abraham could not be revived. He was dead.

Shortly afterward, a forensic pathologist, Dr Michael Burke, conducted a post-mortem examination of Mr Abraham’s body and concluded that death had resulted from cyanide poisoning. Since the death was suspicious, police kept the cause of death confidential. Other than forensic officers and police, nobody — not Sofia Sam, immediate family or anyone else — knew that Mr Abraham died from poisoning.

The applicant Arun Kamalasanan (for convenience, ‘Kamalasanan’) had been a long-time friend of Mr Abraham, who had married the applicant Sofia Sam (for convenience, ‘Sam’), in 2008. Sam came to Australia with her son on 2 December 2012. Mr Abraham joined them in May 2013. Not long afterwards, on 7 July 2013, Kamalasanan arrived in Australia on a student visa, leaving his wife and son behind in India. Sam, Kamalasanan and Mr Abraham had been friends since attending university together in India. It was the prosecution case that the relationship between Sam and Kamalasanan was much deeper than had been publicly acknowledged, and that they had been involved in a long-term romantic relationship notwithstanding that they were married to other people.

Following an investigation which we will in due course describe, Kamalasanan and Sam were arrested and charged with Mr Abraham’s murder. They were jointly tried, a jury finding them both guilty of murder on 21 February 2018. Following pleas in mitigation, on 21 June 2018 the trial judge sentenced Kamalasanan to 27 years’ imprisonment, with a non-parole period of 23 years; and sentenced Sam to be imprisoned for 22 years, with a non-parole period of 18 years.

By a notice dated 20 July 2018, Sam seeks leave to appeal against her conviction on two grounds:

1. The verdict of the jury was unsafe and unsatisfactory.
2. That a substantial miscarriage of justice resulted from the failure to order that the Applicant’s trial be heard separately from that of the co-accused.

Initially, Kamalasanan sought leave to appeal only against sentence. By a notice dated 3 July 2019, however, he sought leave to appeal against his conviction out of time on two grounds. On the hearing of the application in this Court, he was granted leave to add a third ground (formulated by counsel).[1] The grounds are:

1. Substantial miscarriage of justice occurred by partial analysis of evidence.
2. New evidence can be produced if court allows.
3. A substantial miscarriage of justice occurred by reason of the learned trial judge making a comment to the jury that the prosecutor had not adverted to evidence that the applicant had been home sick in bed at the time of the alleged murder because it had not previously been raised and had not been adverted to by the applicant in his record of interview.

[1]See [74] below.

Kamalasanan’s notice seeking leave to appeal against sentence, dated 19 July 2018, contained two grounds as follows:

1. The head sentence and the non-parole period are manifestly excessive.
2. The sentence is manifestly disparate with the sentence passed upon the co-accused Sofia Sam.

For the reasons that follow, we would refuse Sam’s application for leave to appeal against her conviction.

Since his application for leave to appeal against conviction has no prospects of success, we would also refuse Kamalasanan’s application for leave to appeal against conviction out of time. We consider, however, that his application for leave to appeal — and his appeal — against sentence should succeed, and that he should be re-sentenced to a term of 24 years’ imprisonment, with a non-parole period of 20 years.

The offending: background and aftermath

It is necessary to summarise the facts leading up to Mr Abraham’s death, the manner of his killing and relevant events subsequent to his demise.

The prosecution case was that Kamalasanan and Sam had an agreement, arrangement or understanding to murder Mr Abraham, the relationship between them supplying the motive. Although the prosecution was unable to point with any precision to when that agreement, arrangement or understanding was formed, it was alleged that it certainly was in place when the murder was committed.

So far as Kamalasanan was concerned, the centrepiece of the prosecution case was his admissions made to covert police operatives that he had administered the cyanide.

With respect to Sam, the prosecution case principally was that she acted to support an agreement, arrangement or understanding with Kamalasanan to murder her husband. She was present in the house on the very night (or morning) that the poison was administered; and, indeed, was sleeping in the same bed as her husband. There were no signs of forced entry, and any person who entered the unit had to have entered or remained with her consent. Even if she did not directly administer the cyanide, she must have known of, and been complicit in, what was going on. Alternatively, the prosecution case was that Sam administered the cyanide herself. She had the opportunity to do so, by putting the poison in an avocado shake or in orange juice.

As we have indicated, Sam Abraham was found by emergency workers to be dead at 9.27 am on 14 October 2015. He died from cyanide poisoning. Those present when he ingested the poison were his wife and six-year old son, and, according to his admissions to police, his erstwhile friend, Kamalasanan. Although the pathologist, Dr Michael Burke, had determined that cyanide poisoning was the cause of death, that fact was not revealed to anybody beside forensic staff and police.

Relationship evidence

There was ample evidence to show that Sam and Kamalasanan were romantically involved. Thus, an ‘Upward’ brand diary seized by police after Sam and Kamalasanan were arrested, showed that Sam had made many entries in it — in English, Hindi and Malayalam — commencing 28 January 2013. Between 23 July and 8 August 2013, Kamalasanan — who moved to Australia on 7 July 2013 — also made entries in the diary. We do not consider it necessary to set out the entries in great detail.[2] It is enough to say that it was well open to the jury to conclude that the entries evidenced the fact that Sam and Kamalasanan were romantically involved, the entries being replete with expressions of love one for the other. Further, entries on a Seagate computer hard drive found at Kamalasanan’s home after his arrest were capable of showing his romantic attachment to Sam. Kamalasanan and Sam also opened a joint Commonwealth Bank account in their names on 8 January 2014, using Kamalasanan’s as the contact address. (There was, however, no direct evidence of a sexual relationship.)
[2]See [49] below.

At trial, Aji Parameswaran, who lived with Kamalasanan, gave evidence that he met Sam at his house a few days after Kamalasanan arrived from India. Kamalasanan told him not to tell his (Kamalasanan’s) family about Sam.Mr Parameswaran said that he did not observe any intimacy between Kamalasanan and Sam over the hour that Sam was at the house, but he knew they were good friends. He also gave evidence of being told by Kamalasanan that he had attended Mr Abraham’s funeral, and that he had bought a car that had belonged to Sam and Mr Abraham (and was living in it).

Arun Yoshith was Sam’s employer. He had also met Kamalasanan and Mr Abraham. He gave evidence of seeing Sam and Kamalasanan in early 2015, sitting side-by-side in a food court.

The morning of the death

Turning to the morning that Mr Abraham was found dead, Sam’s sister, Soniya Roshin, a registered nurse, said (in a statement read into evidence) that Sam called her in the morning of 14 October 2015. In response to the call, she attended Sam’s unit and attempted unsuccessfully to resuscitate Mr Abraham.

Anu Tomy, also a registered nurse, who was a family friend of Sam’s, accompanied Ms Roshin. In her statement, which was read into evidence, she said that she went to Sam’s unit with Soniya Roshin, after receiving a call from Sam. She said that, after arriving

Sofia [Sam] opened the door in tears. I knew something was very wrong and she was crying uncontrollably, we moved her aside and went in the house and went straight to the master bedroom which is on the left as you enter the house.
I saw [Mr Abraham] straightaway on the bed, Soniya [Roshin] was with me. Sam was on the side of the bed. As a trained nurse I knew it wasn’t good, I noticed he had a cut on his lip.
I touched his hand and felt that it was very cold. Soniya and I pulled him from the bed onto the floor. [Sam and Mr Abraham’s six-year old son] was also in the bedroom, just sitting on the bed. I took him and said that he needed to go out of the room.
Soniya started resuscitation whilst I rang for an ambulance. I think I used my phone [to] call 000 and tried to get an ambulance to attend. I didn’t know the address and the operator was having problems working out where to send the ambulance. The operator was helping us by talking us through the resuscitation.
Soniya started to get tired, so I took over from her. The force of the resus [scil,. resuscitation] caused a frothy secretion with some blood in it to seep from [Mr Abraham’s] mouth. During the process, we checked [Mr Abraham’s] pulse a couple of times and kept going with the resus until the ambulance arrived.
Sofia isn’t from a medical background so didn’t really know what to do and was massaging his feet, trying to keep him warm. Sofia was still crying heavily. Soniya was asking her what happened and Sofia replied, ‘I don’t know. I woke up this morning and this is how I found him.’ The ambulance arrived and took over from us, so we all came out of the room.

Darko Nikolovski was a neighbour of Sam and Mr Abraham. His statement was read. He described attending on the morning of 14 October 2015 while CPR was being performed on Mr Abraham.

Steven Hoe, an ambulance officer, gave evidence of attending on Mr Abraham on the morning of 14 October 2015. He observed that Mr Abraham was deceased. Mr Hoe said that he was told at the scene that the deceased was last seen alive at 2.00 am, and had been found in his current state at 9.00 am.

Responding police

Fay Menezes-Moras, a constable of police then stationed at Epping Police Station, gave evidence that she was despatched to Sam’s unit at 9.37 am on 14 October 2015, arriving at 9.44 am. She observed that the deceased was lying on his back next to the bed, and that ‘his lower lip appeared to be dark reddish in colour’. Sam was sobbing. Her son, Anu Tomy and Soniya Roshin were also present. Sam told her that the deceased had not eaten anything before going to sleep, but mentioned that he had ‘avocado juice’ before going to sleep. Constable Menezes-Moras said that she and Senior Constable Torrelli then did a search of the unit. She did not know at that stage what the cause of death was, and she did not find any item that in her view ‘would assist the investigation’. There were no signs of forced entry. Undertakers arrived and removed the deceased’s body at 12.28 pm. Senior Constable Torrelli took photographs, but no items were seized. Constable Menezes-Moras was cross-examined on a purple cup — containing orange liquid — depicted in the photos. The cross-examination included the following:[3]
[3]Emphasis added.

… And the reality is that there was absolutely no evidence obtained which could be of any value in explaining the death of the deceased?---Ah, whilst we were on scene, there was no evidence available that could explain, yeah.
In particular, could I take you to Photograph 18 in Exhibit 2, if that could be called up, Your Honour. ... Now you see that table there, that little table [in the deceased’s bedroom]?---Yes.
You’ll see on it that there’s a cup, a purple cup?---Yes.
It seems to have some liquid in it, it seems to be of an orange colour, just looking at it?---Yes.
…
But the cup itself was not seized for any further forensic examination?---When we left the scene, we didn’t have any items that were seized, yeah.
In fact, no items from the house were seized?---As far as I recollect, there were no items seized.

Senior Constable David Torrelli had attended Sam’s unit with Constable Menezes-Moras. He conducted a search of each room of the house and made no observations of forced entry. In the deceased’s bedroom, he took a number of photographs. At the time he had no reason to seize a purple cup depicted in the photos. His evidence-in-chief included the following passage:

Photograph 18?---That is a bedside table directly to the right-hand side [in the deceased’s bedroom].
And why did you take that photo?---Um, I basically took a photo of … as much of the whole room as possible, and I noticed … the purple cup had been tipped over with some liquid content in there. Whether that had anything to do with … the reason the deceased was dead or not, I didn’t know, but I took it anyway, just in case.
Did you seize that cup?---Ah, no.
Are you aware as to whether anyone seized it?---I’m not aware that anyone did.
Why did you not seize that cup?---Well I wasn’t sure if it had anything to do with anything so I’d rather photograph it and then proceed from there, but I had no real reason at the time to seize the cup.
At that point in time was this being treated as a crime scene?---Not as a crime scene as such, it’s a reportable death for the Coroner, so that’s how we treated it.

Forensic pathology evidence

Dr Michael Burke, the senior forensic pathologist at the Victorian Institute of Forensic Medicine, carried out an autopsy on the body of the deceased at 8.00 am on 16 October 2015. Among other observations, he said that there was no food in the deceased’s stomach, just ‘a small volume of brownish fluid’. A toxicology report showed cyanide within the blood, the liver and stomach contents. There was also Clonazepam — which is a ‘benzodiazepine’, ‘like Valium’ — in the blood. Dr Burke also gave the following evidence in chief:

Now, you were also asked your opinion on whether an individual could be administered cyanide in a drink whilst unconscious after being given some type of sleeping tablet or sedative?---Yes, I was.
And the context was … that the Clonazepam was found in, in the blood?---Yes, it’s a drug like Valium.
And what is your opinion in respect of that?---When it was first put to me I thought it sounded very unlikely, I must say, upfront … but I did some reading and I’ve referenced a couple of articles and as I have said in my report here, ‘Lay experience informs us that saliva is swallowed throughout the night whilst one is asleep.’ So, even, we are always producing saliva and, and we swallow it. So, um, reading the um, the ah papers, experiments are done where um a small syringe puts a small amount of fluid into the back of the throat and that sets off a reflex, a little like if the doctor taps your kneecap and the reflex is that your knee, your knee um jumps, your leg straightens. So, there is a reflex once water or food gets to the back of the throat, there is a reflex you can no longer control which will send the food or water down into your stomach. So, I, I thought it was possible.
In terms of those experimental studies … what kind of quantities were being administered and over what period of time?---[T]hey were very small volumes, very small, a mil [scil., millilitre], couple of mils.
…
When you say ‘very small amounts’ I just missed what you said?---Ah, less than a mil. A small amount of fluid.

Dimitri Gerostamoulos, a toxicologist and pharmacologist, tested samples taken from the deceased. Cyanide was found in blood taken from the deceased’s leg at a level of 35 milligrams per litre; in a section of the deceased’s liver at a level of 28 milligrams per kilogram; and in the deceased’s stomach at a level of 16.5 milligrams. Clonazepam and heavy metals were also found in the deceased’s blood.

Covert investigation into the death

After Mr Abraham’s death, his wife and Kamalasanan were seen together on a number of occasions. Thus, on 25 November 2015, police Covert Operative 83 saw them drive to a VicRoads office, an Aldi Supermarket and a Chemist Warehouse together. Covert Operative 110 undertook surveillance of Kamalasanan on 29 November 2015. Kamalasanan went to Parkville and spoke to Sam, who was seated in a parked vehicle. He later travelled by train to Epping, and was collected by Sam. On 4 December 2015, Covert Operative 71 observed Sam and Kamalasanan meet. Sam gave Kamalasanan a key, and the two then ate lunch together. Sam and Kamalasanan were also seen by Covert Operative 52 to have lunch together on 9 February 2016. On 16 March 2016, Covert Operative 61 observed Sam and Kamalasanan walking from Sam’s work, having lunch together and going to the Commonwealth Bank. Covert Operative 128 saw them together on 16 May 2016. They met in Kamalasanan’s car. Kamalasanan sat in the driver’s seat, and Sam in the back seat. Sam left and Kamalasanan drove away.

Very significantly, on 17 March 2016, police commenced an undercover operation. Kamalasanan was the target. The operation involved covert operatives engaging with Kamalasanan to gain his trust. Over a period of six months, between 17 March 2016 and 18 August 2016, several covert operatives conducted some 37 planned ‘scenarios’ with Kamalasanan, which involved Kamalasanan engaging in simulated criminal (and non-criminal) activities, each of these scenarios being covertly recorded.

On 17 March 2016, covert operative ‘Damien’ introduced himself to Kamalasanan, asking for Kamalasanan’s help to locate a missing girl. Damien told Kamalasanan that he would pay him for his help.

Thereafter, until Kamalasanan’s arrest on 18 August 2016, Damien and Kamalasanan had many meetings. Damien told Kamalasanan that he was part of a criminal syndicate and wanted Kamalasanan to assist the syndicate. He introduced Kamalasanan to other covert operatives, and told Kamalasanan that ‘Jack’ was the syndicate’s ‘boss’.

Damien, Kamalasanan and two covert operatives, ‘Alex’ and ‘Vili’, went out to dinner on 8 July 2016. In the course of dinner, Kamalasanan told the others that potassium cyanide can be extracted from tapioca and that it will kill you in three minutes.

Less than a week later, on 14 July 2016, Damien and Kamalasanan met. Kamalasanan told Damien that he had brought an item from India and needed to store it. It was a powder that was ‘seriously bad’, so that if someone smelled it they would be dead on the spot. Kamalasanan said that he did not want to get rid of it and he needed to keep it. He also told Damien that it was really easy to take one man out without any trace. Kamalasanan said that people might be searching for him for something nasty that he did; and that, if the incident came to light it would be international news. He told Damien that the incident was personal, not terrorism related. Kamalasanan said that he had been planning it for three years and had carried out the plan seven months earlier. If he was compromised, Kamalasanan said, his best option was to ‘switch off’. That was why he kept that powder.

On 16 July 2016, Damien again met Kamalasanan. Damien told Kamalasanan that he had arranged a storage place. Kamalasanan gave Damien a cylindrical item wrapped in packing tape. He told Damien that it was potassium cyanide that he had brought into Australia from India about one and a half years earlier. Kamalasanan said that he had breached a security area and stolen the item. It was a powder that would go into water. Kamalasanan claimed that it was assassin’s medicine which would kill painlessly in seconds.

We pause to note that Damien provided the item for analysis. Despite Kamalasanan’s grandiose claims, however, analysis showed that the powder did not contain cyanide.

Two critical meetings took place on 18 August 2016, the day that both Kamalasanan and Sam were arrested. The first meeting was between Damien and Kamalasanan. During the meeting, Damien took a telephone call. After the call, Damien told Kamalasanan that there was a ‘problem’ with Kamalasanan’s ‘immigration’. Damien said that there was an alert out for Kamalasanan and ‘some chick, [Sofia] Sam’. He said they were ‘to be arrested for a murder or something that happened last year’. Kamalasanan told Damien that this was what he had previously been talking about. He said he ‘took that guy off’. Kamalasanan said that Sofia was a friend of his and that the guy was Sofia’s husband. Sofia’s husband, Kamalasanan said, had been ‘troubling her for a long time’, but because of her culture she could not divorce. Emergency Services had ‘initially spotted it as a suicide’ and then ‘spotted it as a heart attack’. Kamalasanan said that Sofia presently was at his place. They studied together. He had known Sofia for fifteen years but she had never accepted him. Sofia, Kamalasanan asserted, did not know much about the murder and did not know about his involvement. Kamalasanan said that he ‘drugged the entire family’ in order to commit the murder. He said that he jumped into the house and put pills into an avocado shake. Kamalasanan claimed that he later drugged the deceased ‘more’ with sleeping pills and gave him the cyanide powder in orange juice ‘because it works well with orange juice’. He held him and ‘made him drink’ while he was in bed ‘asleep’. Damien told Kamalasanan that they would ‘deal with it’ and that he would introduce him to Jack.

Later that day, the second meeting took place. Damien introduced Kamalasanan to Jack. Kamalasanan told Jack that he went to India for some months and brought some potassium cyanide back with him. On the night of the murder, Kamalasanan said, he ‘snuck in through the garage’ when Sofia came home. He gave them sleeping pills in a milkshake ‘so that everyone went to sleep’. Later, he gave the deceased more sleeping pills ‘so he went into a deep sleep’. Kamalasanan said that he added the ‘potassium cyanide’ to orange juice and made the deceased drink it. He said that he ‘holded [sic] him up’ and the deceased swallowed it. Sofia was asleep. Kamalasanan said that he then got out ‘the same way’. Sofia did not know anything at the time. She ‘came to know only after few months’ after he told her, and ‘she knows about everything now’ that he did. Kamalasanan said that he had ‘planned’ the killing for ‘three years’.

Arrests and interviews

Police arrested both Kamalasanan and Sam later that day. In police interviews, both denied any involvement in Mr Abraham’s killing. Further, both asserted that they were not involved romantically or sexually and suggested that they had met in Australia by chance. Kamalasanan told police that, when he moved to Australia, he did not know that Sam and Mr Abraham were living here, and that after a few months he had a chance meeting with them in the street. He did not have much contact with them, however, because he was too busy. Sam said that she did not know that Kamalasanan was moving to Australia to study and that she was surprised to meet him six months to a year after he did move.

Kamalasanan also told police that he was married and ‘we don’t divorce, man’. He said he had researched cyanide at school, and knew that potassium cyanide was contained in apples and tapioca.

Importantly, Sam said that the statement that she made to police on 16 October 2015 was true. Sam told police that ‘in our culture you only marry one person and we live with that’. She said that she had studied cyanide at school. It was a poison that could cause death, and she believed that nobody knows the taste of cyanide. Sam could not give an explanation as to how her husband had ingested cyanide. When asked by police to tell them what had happened from the time she got home, Sam said that her husband was not feeling well, had a headache and did not want to eat. She said that she made him an ‘avocado shake’, which consisted of ‘just avocado, sugar and cold milk’ mixed in a blender. After that, Sam said, she made her husband orange juice, which she squeezed using a plastic utensil. She gave him the orange juice in a small, coloured plastic ‘kid’s cup’. Sam said that she did not know the colour of the cup, but they had purple, pink, green and blue cups. When she went to bed, she slept in the ‘middle’, with her husband and child either side of her.

In her statement of the previous year, Sam had said that on 13 October 2015 she got home after work at 7.00 pm. She said that at 9.30 pm she had to drop some food items at her sister’s house. Her son had been put to bed at about that time. She then got groceries at Woolworths’, arriving back home sometime after 10.00 pm. Soon after she got home, she was ready to have dinner, but her husband told her that he was not hungry. He said he would have a drink. Mr Abraham told her that he had a headache and that he had taken some Panadol or Panamax. Sam stated that she got him a drink of orange juice. After dinner, she was cleaning the kitchen. Her husband had gone to bed, but ‘he kept getting up and down because he could not sleep’. Sam said that she went to bed at about 11.30 pm. Her husband was still awake. He got in and out of bed a few times to go to the toilet or have a drink. She stated:

I also offered to make him an orange juice. He said he didn’t want it, but I made it anyway. I squeezed the oranges and left it in the kitchen and I told [Mr Abraham] it was there if he wanted it. I am not sure what time it was that we fell asleep. We kept waking up during the night and at one stage, [Mr Abraham] told me that he was going to go to the gym. I think this may have been about 1.00 am the next morning. I told him that I didn’t want him to go the gym that late and I held him to stop him from going. He pushed me and I fell down onto the ground. [Mr Abraham] did not go to the gym and he sat on the end of the bed. We again continued to talk. I don’t know what time it was but we eventually both fell asleep. I normally set my mobile phone alarm in the morning for 5.45 am but I hadn’t put my phone in my room so I didn’t hear it go off. When I woke I opened my eyes and noticed that it was still dark. I thought that Sam was still asleep as he was next to me and looked like he was sleeping. I closed my eyes again and went back to sleep. The next time I woke, I noticed that the room was very bright so I got up and quickly went into the other room to check the time. I saw that it was 9.00 am. This was now Wednesday the 14th of October. I knew that my son was late for school and I was also late for work. [Mr Abraham] starts work at 11.00 am and he drops [our son] at school. I then went back to the bedroom. I saw that [our son] was still asleep and I noticed that [Mr Abraham’s] right hand was out of the bed, I was calling for him to wake and shaking him but he was not responding. I noticed that his lips were dry and dark red. I again tried to wake him and shake him but he would not wake up. I then got the land phone and tried to ring my sister Sonia. I couldn’t get through on the phone so I went to the kitchen and got my mobile and rang my sister from my mobile. My sister did not answer but my sister’s cousin Anu answered. I just asked for my sister to come to my house. I couldn’t tell them what had happened. I then called my sisters [sic] mobile and she answered. I told her to come to my house. I couldn’t tell her what had happened. While I was waiting for my sister, I kept trying to wake [Mr Abraham] but he was not responding. When my sister arrived with her cousin, I opened the door and let them in. My sister and Anu both went into the bedroom and pushed [Mr Abraham] onto the floor and my sister then asked me what had happened and she was pushing on [Mr Abraham’s] chest. [Our son] was still asleep so my sister told me to wake him up which I did. I could not do anything, I think my sister or Anu called the ambulance. I don’t know what time it was but I remember the ambulance arriving. The ambulance asked all of us to leave the room. My sister was speaking to the ambulance officers. They told us that [Mr Abraham] had passed away. I am not sure what time it was but the police also came.

The toxicologist: Professor Nerendra Gunja

Professor Nerendra Gunja, clinical and forensic toxicologist and emergency medicine physician, gave evidence at trial. He said that the deceased’s lips being very bright red was an indicator of cyanide poisoning. The deceased had ingested a large dose of cyanide and an amount of Clonazepam consistent with ‘one or a few tablets’. Professor Gunja said that cyanide is highly toxic, and that levels such as found in the deceased are not able to be obtained from foods. He gave evidence that, ‘Deaths have occurred with levels above 1 mg/L [scil., one milligram per litre]’, and ‘here we have a level that is 35 mg/L, which is clearly within the lethal range’. Cyanide powder, he said, ‘would have to be mixed in liquid’ to be ingested, since, ‘If you ingest a powder, it would just burn your tongue and you wouldn’t swallow it very well’. Professor Gunja gave evidence that

if you drank a whole, you know, cup of cyanide, you would usually vomit almost immediately. If you ingested it slowly, it’s possible that you don’t vomit, that you either have only a little bit of vomiting or you just have a bit of regurgitation and don’t vomit completely and the same process would happen. That you would become unconscious, you would start having seizure activity, you would possibly be thrashing about with convulsions, and then become blue, turn blue and then your heart and blood vessels wouldn’t be working as well and you would die with cardiovascular collapse ...
[I]f it was a gaseous exposure it would happen instantly and you would see the person in front of you collapse and have seizures and die in front of you. If it was ingestion, similarly they would collapse, become unconscious, be convulsing like in a generalised tonic-[clonic seizures] manner which jerking movements and then pass away, yep. And … if they drank it all in one go you would observe the vomiting, and the retching and so forth.

Professor Gunja said that the Clonazepam levels in the deceased were consistent with a person being drowsy, not deeply unconscious. He said that

how [the deceased’s] ingestion happened we cannot exactly say based on the autopsy report or the levels. However … in general people who take a large amount of cyanide all in one go usually have corrosive lesions in their stomach and in their oesophagus because cyanide is a corrosive substance. So if you drink … a high concentration cyanide you will have erosions in your oesophagus, the food pipe. You’d have red spots and that’s not visible in the autopsy so that makes me think that a very high concentration, small volume, all in one go … would be less likely rather than a lower concentration, small sips over time based on the autopsy finding of the oesophagus. … over many minutes to … a few hours. … Not in ten minutes. … Like I’m talking half an hour to a few hours.

In answer to questions asked by the trial judge, Professor Gunja also gave the following evidence:[4]

HIS HONOUR: When you say over time, is that a description of a continuous process or is it also consistent with some being taken at some time, say – well I don't know. Some being taken at some time, and then some being taken at a later time?---Yeah.
Not just sitting there, sipping … sip after sip?---So you can’t … distinguish between those two scenarios. You could have had a moderate amount now and then, an hour later, had another moderate amount, or you could have had a continuous, or intermittent sips of liquid over an hour, for example. What you can say is a large amount of cyanide went into the stomach, but the fact that there were no erosions suggests that the cyanide got in over more than just a few minutes.

[4]Emphasis added to this and following passages.

Professor Gunja then gave evidence as follows:

[COUNSEL]: Okay. One other matter that you were asked to give your opinion on is, assuming the … deceased was asleep at the time some kind of liquid with the cyanide was administered, … could the deceased have stayed asleep if small amounts of liquid containing cyanide had been administered? If we take that one first?---Yes, if someone was asleep or drowsy, you could give them cups of a liquid and they – over time that they swallowed, a gulp at a time, swallow at a time. It’d be hard to give, like, a whole cupful all in one go to someone who’s asleep, because they would gag and vomit and splutter. [B]ut little sips, you could give to someone who’s asleep, propping them up.
And when you … say little sips, what type of amounts?---I’m talking ---
If you could explain that?---Between, you know, normal adult mouth is about 50 mils in volume. ... So I’m talking volumes around 20–50 ml. … Like a tablespoon … about 20 ml, roughly.
Yes but if a scenario of the liquid being poured down the throat all in one go were the case, would the deceased or could the deceased have stayed asleep?---They could – they might have stayed asleep but they would have had reflexive coughing and gagging and spluttering, and it would be much more likely that they would wake up from that. … I think to stay asleep completely would be difficult and less likely.
HIS HONOUR: Professor, would there be convulsions?---Seizure activity?
Yes?---So as that cyanide level increased in your body over time, it would get to a point where there was enough toxin in your body to cause seizure activity, yes. So the convulsions would begin after ingesting enough of it.

The informant

The informant, Detective Leading Senior Constable Joseph Paul Strachan, gave evidence concerning the investigation following the autopsy of Mr Abraham. He gave evidence that nothing in the investigation pointed towards Mr Abraham’s death being suicide. Crucially, neither Sam nor Kamalasanan were told of the cause of death. In cross-examination, Detective Strachan confirmed that Sam and Kamalasanan did not have criminal histories. No forensic material was found to link Kamalasanan to Sam’s house, and cyanide and clonazepam were not found at Kamalasanan’s premises.

Sam’s first ground: Is the verdict unsafe and unsatisfactory?

In our opinion, it was well-open to the jury to convict Sam of murder on the evidence solely admissible against her. Her complaint that the verdict of murder against her is unsafe and unsatisfactory cannot be upheld.

We have, of course, approached the matter mindful of the guiding principles, recently once more restated in Conolly:[5]

By virtue of s 276(1)(a) of the Criminal Procedure Act 2009 (‘CPA’), this Court must allow an appeal against conviction if the jury’s verdict ‘is unreasonable or cannot be supported having regard to the evidence’. The test to be applied under that statutory limb is as formulated by Mason CJ, Deane, Dawson and Toohey JJ in M.[6] Thus, ‘the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty’.[7] 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.[8] Generally, a reasonable doubt about guilt experienced by the appellate court is one that the jury should also have experienced. As was observed:[9]
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. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
In written submissions, the respondent contended that ‘the test applicable to this ground’ was stated by Hayne J in Libke; that is, ‘the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt’.[10] That statement is, however, apt to be misunderstood. Properly viewed, it does not constitute a gloss on the M test, let alone operate as a substitute for it. As this Court explained in Tyrrell:[11]
It is important to bear in mind that, in that passage, Hayne J did not restate the test in terms that were more stringent than that in which it was expressed in M. 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.^[[12]]

[5]Conolly (a Pseudonym) v The Queen [2019] VSCA 125, [7]–[8] (Priest, Beach and Kyrou JJA) (citations as in original).

[6]M v The Queen (1994) 181 CLR 487 (‘M’).

[7]Ibid 493.

[8]M, 492–4; R v Baden-Clay (2016) 258 CLR 308, 329–30 [65]–[66] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

[9]M, 494.

[10]Libke v The Queen (2007) 230 CLR 559, 596–7 [113] (Hayne J) (‘Libke’) (emphasis in the original).

[11]Tyrrell v The Queen [2019] VSCA 52, [70] (Kaye, Niall and Weinberg JJA) (‘Tyrrell’).

[12]An application by the Director of Public Prosecutions for special leave to appeal this Court’s decision in Tyrell was refused on 7 August 2019. See The Queen v Tyrrell [2019] HCASL 220.

In support of the contention that the verdict is unsafe and unsatisfactory, counsel for Sam in summary advanced the following submissions:

· First, there was insufficient evidence that, at the time of the murder Sam regarded her relationship with Kamalasanan as anything more than a close friendship.

· Secondly, there was a paucity of evidence that Sam desired to leave her husband and considered that his death was the only means by which she could do so.

· Thirdly, there was no evidence that Sam had possessed cyanide at any time, had the ability to access it or had more than basic knowledge of its properties.

· Fourthly, there was no direct evidence to contradict Sam’s contention that she was unaware that her husband died of cyanide poisoning until she was informed of this during her police interview.

· Fifthly, the evidence admissible against Sam did not permit any conclusion as to how the cyanide was administered to, or ingested by, the deceased.

· Sixthly, there was no evidence as to the commission by Sam of any physical element of the offence.

· Seventhly, there were no admissions in any form of Sam’s intention to commit the offence of murder, or of her entering into any agreement, arrangement or understanding with any person to do so.

· Eighthly, on the available evidence, the jury could not properly exclude that the deceased was poisoned without Sam’s knowledge or participation.

In our view, however, the evidence admissible against Sam paints a compelling picture of her guilt.

To begin with — and contrary to one of the primary contentions of Sam’s counsel — there was ample evidence to demonstrate that Sam and Kamalasanan had a romantic relationship (from which Mr Abraham was excluded) which was more than merely a ‘close friendship’. They had opened a joint bank account. Both before and after Mr Abraham’s death, they were seen together doing things that only intimates would. And they had professed their love and desire for each other — and their ambition to be together — in the Upward diary. From Sam’s musings we consider it to be very clear that her feelings for Kamalasanan went well beyond platonic friendship. Thus, for example, Sam had written things such as the following:[13]
[13]Grammar, syntax and punctuation of original source preserved so far as practical.

·Tuesday, 30 January 2013:
I feel to hug you & comfort u
Don’t look at me like this or I will start crying
I want to hug you and make all your sorrows disappear
·Saturday, 2 February 2013:
Was waiting …
With your memories on my mind, I’m waiting for you …
·Sunday, 3 February 2013:
You are unable to meet me …
I’m unable to live …
Miss u - … a lot
What kind of senselessness is this …
·Friday, 8 February 2013:
I wish to sleep in your arms but I can’t do that.
I want to be yours but you are not mine.
You are the one for me but you don’t belong to me.
·Sunday, 17 February 2013:
Miss you a lot dear
Can you hold me tight ...
I want to drift away in your love
I want to forget myself in your arms
Just come for a moment
Take me in your arms
Hug me tight ... hold me rude ...
I am here for you ... Miss you dear
·Tuesday, 23 April 2013:
Freedom of life
This is the need or right of each and every individual … and when this not allowed … it makes the life worst … especially the gals have to suffer always …
·Friday, 10 May 2013:
AM I DOING WRONG !!??
They say I am wrong … they say I am bad … they say I always do mistakes … all are there to correct me!! They say I don’t know anything They say I have ‘stubbornness’ stubborn female They will say I am bad
·Wednesday, 2 May 2013:
I am kind of habituated to you What magic have you and your love done?

Next, by her own admission to police — in her statement of 16 October 2015 and record of interview on 18 August 2016 — Sam was in the unit at the time her husband ingested the cyanide; had given him orange juice to drink; and had slept beside him. Each of those three admissions was important to establishing her guilt.

Professor Gunja’s evidence, it will be remembered,[14] made it plain that the deceased can only have ingested the cyanide in a liquid, since the corrosive properties of cyanide in powder form meant that it could not be ingested orally in that form. The deceased had a large amount of cyanide in his stomach, which must have been swallowed in small doses; since, as Professor Gunja’s evidence made clear, had the deceased swallowed a large amount ‘in one go’ — ‘a cupful’ — he would immediately have vomited it up. Moreover, had the deceased swallowed a large amount at one time, given that cyanide is a corrosive substance, the deceased would have had ‘corrosive lesions’ in his stomach and oesophagus. Professor Gunja said that ‘a large amount of cyanide went into the stomach, but the fact that there were no erosions suggests that the cyanide got in over more than just a few minutes’. The effect of Professor Gunja’s evidence was that the deceased could have been propped up, and given ‘little sips’ to get the cyanide into his stomach. Significantly, Professor Gunja’s evidence was that, if a person ingests cyanide slowly, and does not vomit it up completely, the person will ‘start having seizure activity … thrashing about with convulsions’, and that ‘the convulsions would begin after ingesting enough of it’.
[14]See [40]–[43] above.

The importance of Professor Gunja’s evidence is, of course, at least threefold. First, Mr Abraham must have ingested the cyanide in a liquid, in circumstances where it might readily be inferred that the liquid was orange juice. Sam said that she had given her husband orange juice in a plastic cup, and there was an upended purple plastic cup in the bedroom containing orange-coloured liquid. Further, Dr Burke had detected ‘brownish fluid’ — consistent with orange juice, it might be thought — in the deceased’s stomach. Next, from Professor Gunja’s evidence it may readily be concluded that the deceased could not have swallowed the cyanide without the intervention of another. Thus, excluding the six year old child, that other can only have been Sam herself, or a third person (or persons). Self-evidently, if Sam had been (as she claimed) lying beside her husband to sleep, she could not have failed to notice someone propping her husband up, feeding him small doses of poisoned liquid over an extended period. And finally, it beggars belief that Sam could have failed to observe her husband in the throes of death. From Professor Gunja’s evidence one might infer with little hesitation that, as the cyanide invaded his system, the deceased would have been thrashing about and convulsing, something which could not have gone unnoticed by Sam (who claimed to be next to him).

It is important to note that Sam’s counsel did not advance suicide as a possible cause of her husband’s death, either at trial or on appeal. Thus, as senior counsel for Sam submitted to this Court:

[Suicide was not] put forward as an alternative. The issue was that the only conclusion you could make was that he had been intentionally poisoned by someone intending to cause his death, and the issue was, was [Sam] either the person who did that or a participant in an agreement to do that and supportive of that agreement? So on [Sam’s] case to the jury the suicide issue was positively conceded.
So essentially her argument before the jury was that he was intentionally poisoned in her home that evening but that she was not knowingly involved in that event and was unaware of that poisoning until told by the police in her record of interview, and the only other relevant piece of evidence from the defence perspective, or relevant part of the argument, was essentially what could be made of her previous good character and things going to that nature.
So the question for the jury in this trial was essentially was it a reasonable possibility that that intentional poisoning occurred without [Sam] being involved? And they weren’t asked to determine precisely how she was involved. It was put to the jury that there was no evidence as to how she was meant to have either supported this agreement or whether she was meant to have [done] something herself. The issue was essentially looking at all those circumstantial matters, is the only reasonable conclusion, or the only reasonable possibility that she knew of the poisoning and was intentionally involved in its commission?

For the reasons discussed, we consider that the jury was confronted with very powerful evidence of Sam’s guilt. On the evidence admissible solely against Sam, the inference that she either administered the poison alone, or connived with another as part of a criminal combination to do so, was overwhelming. Simply stated, the conclusion is irresistible that the deceased could not have been poisoned with cyanide — and died while reacting to the poison in the manner Professor Gunja described — without Sam’s direct action or her collusion with another (or others).

There was nothing that should have constrained the jury to have a reasonable doubt about Sam’s guilt. Indeed, we consider her conviction to have been inevitable.

Sam’s first ground fails.

Sam’s second ground: Should she have had a separate trial?

Counsel for Sam made an application to the trial judge that she be tried separately from Kamalasanan. The judge refused that application.

In this Court, Sam’s counsel did not contend that the trial judge’s discretion in not ordering a separate trial miscarried. Rather, counsel contended that, all of the evidence now having been given at trial, with the benefit of ‘hindsight’ it can be seen that Sam has suffered a substantial miscarriage of justice as a result of not being tried separately. We do not agree.

When an indictment names more than one accused, whether in the same or separate charges, they must be tried together unless a judge makes an order under s 193 of the Criminal Procedure Act 2009.[15] Thus, s 193(3) permits a court to order that an accused, charged on the same indictment with another, be tried separately if ‘a trial with the co-accused would prejudice the fair trial of the accused’ or ‘for any other reason it is appropriate to do so’. Before a separate trial is ordered, however, not only must there be substantial prejudice to an accused arising from a joint trial, but the prejudice must be of a kind not really amenable to nullification by judicial direction.[16]
[15]Criminal Procedure Act 2009, s 170(2). See also R v Grondkowski & Malinowski [1946] KB 369; R v Demirok [1976] VR 244 (‘Demirok’); R v Torney (1983) 8 A Crim R 437; R v Collie (1991) 56 SASR 302 (‘Collie’); Webb v The Queen (1994) 181 CLR 41, 88–9 (Toohey J); R v Alexander and McKenzie (2002) 6 VR 53, 67 [31] (Winneke P); R v Ferguson (2009) 24 VR 531, 587 [310] (Maxwell P, Buchanan and Weinberg JJA) (‘Ferguson’); Mwamba v The Queen [2015] VSCA 338, [24] (Priest, Beach and Kaye JJA).
[16]R v Jones & Waghorn (1991) 55 A Crim R 159, 164 (Crockett J); Ferguson, 587 [310]. See also R v Gibb & McKenzie [1983] 2 VR 155; R v Ditroia & Tucci [1981] VR 247.

Whether to order a separate trial is a decision within the discretion of the trial judge. In Demirok, the Court of Criminal Appeal spelled out the matters of public interest which must be considered in all such cases:[17]

In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason witnesses should not be required to give evidence of the same events at a succession of trials.

[17]Demirok, 254 (Young CJ, Lush and Crockett JJ). See also Collie, 308–10 (King CJ). Compare Western Australia v Bowen (2006) 32 WAR 81, 89-90 [25]–[32] (Pullin JA).

As we have said, under cover of ground 2 counsel for Sam did not attack the trial judge’s exercise of discretion. Rather, it was asserted that a substantial miscarriage of justice flowed from Sam being tried with Kamalasanan. As is the usual practice, the trial judge refused the separate trial application based principally on the contents of the depositions. Based on the complete record of the trial, however, Sam’s counsel now invite this Court to conclude that — notwithstanding that the judge’s decision cannot be shown to have been incorrect on the basis of what was then before him — Sam nonetheless can be seen to have suffered a substantial miscarriage of justice by reason of being tried jointly with Kamalasanan. Senior counsel for Sam summarised the essential submissions advanced under cover of ground 2 as follows:

Now the position of the applicant is that there was a miscarriage of justice that was produced by the joint trials, despite the fact that the directions given by his Honour are not complained about and there’s no suggestion that his Honour could’ve done more or any suggestion that his Honour is erred in some way in identifying to the jury their responsibilities to consider the matters separately and identifying the matters going to that.
And what really is the case here is that there’s a miscarriage of justice that’s evident when you examine what the issue in dispute was at trial, what evidence was admissible solely against the applicant Ms Sam and what the forensic impact of the material heard by the jury that was admissible against the co-accused, but not her, had upon the trial.

Quite clearly, Sam cannot succeed unless this Court is satisfied that, due to an error or irregularity in or in relation to the trial, or for any other reason, there has been a substantial miscarriage of justice.[18] Relevantly, it was observed in Demirok:[19]

When the judge’s exercise of his discretion comes to be challenged in an appellate court, the trial has been completed and the appellate court has the advantage of knowing how in the end it was conducted. This circumstance means that any review of the judge’s discretion has unusual qualities. If it can be shown that the judge made an error in the exercise of his discretion the appellate court will nevertheless not put the judge’s decision aside and substitute a different view of its own unless, in the event, it considers that the course of the trial constituted a miscarriage of justice. Conversely, if the decision of the trial judge was made on correct grounds and was in itself a decision which the appeal court would consider to be unimpeachable, it may nevertheless appear that developments at the trial were such as to constitute a miscarriage of justice. In the latter case, the ground of appeal taken no doubt should not be the ground that the trial judge’s discretion miscarried, but simply that because of the course of events which developed during the trial, the nature of the trial constituted such a miscarriage.

[18]Criminal Procedure Act 2009, s 276(1).

[19]Demirok, 251 (emphasis added). See also Collie, 310.

Having regard to the whole of the record of the trial, we have been unable to conclude that Sam has suffered a substantial miscarriage of justice.

It was not disputed by Sam’s counsel that the trial judge gave a clear separate consideration direction — which included directions that the evidence of the covert operatives could only be used against Kamalasanan — and that, both during the trial and throughout his charge, repeatedly referred to the need for the jury to consider the evidence admissible against Sam and Kamalasanan separately.

Counsel for Sam contended, however, that notwithstanding the judge’s repeated admonitions to the jury to consider the cases separately, it was in effect inevitable that the jury would have been incapable of putting out of their collective mind highly prejudicial evidence admissible only against Kamalasanan. There was a real risk that the evidence admissible only against Kamalasanan would be misused when considering Sam’s case. Senior counsel put it this way:

… the exposure to the jury of the Kamalasanan account to the undercover operatives, had a significant detrimental impact on [Sam’s] defence because what it had the tendency to do — and I’ll come to some examples of how this tendency played out in the closing addresses — what it had the tendency to do, was to artificially narrow Sofia Sam’s defence down to an assessment of the Kamalasanan account to the undercover operatives, namely, it had the tendency to effectively say, his account to those undercover operatives is her defence, and … I’d submit that in this case, the way the case was put, the way it was argued, that was a task that was too difficult to achieve even with those directions as clear as [the Court] described them as being. And the second problem with Kamalasanan’s evidence being in the same joint trial, is that there was a tendency to conflate evidence admissible against either, but not both, and to fill in gaps in the narrative and which I’d submit had an invariable tendency to mean that it was difficult for Ms Sam’s trial to be assessed solely on the evidence against her. Further said, it had a tendency to enable the criticisms of Mr Kamalasanan’s credibility to impermissibly and unfairly add to the evidence against Sofia Sam.

In support of these contentions — and by way of example — counsel for Sam drew attention to the fact that Sam had told police that she made orange juice for her husband and that he drank it. On a trial of Sam alone, no significance could have attached to that evidence. Kamalasanan, however, told the covert operatives that he had put the cyanide into the orange juice, thereby imbuing Sam’s provision of the orange juice to her husband with a sinister flavour. That is particularly so in view of Kamalasanan’s admissions to covert operatives that he had first drugged the deceased with sleeping tablets, then poisoned the deceased with cyanide by administering a liquid laced with cyanide directly into his mouth (albeit he claimed that he did this whilst the deceased was in bed and without Sam becoming aware of his actions).

Further, counsel submitted, Sam told police that she had made avocado shakes, and later prepared orange juice for her husband. On its own, this evidence could have had no legitimate probative value against Sam. Kamalasanan, however, told covert operatives that he put sleeping pills into the avocado shakes and cyanide into orange juice. Sam’s counsel argued that there was no direct evidence that she knew prior to the record of interview that her husband had been intentionally poisoned. Indeed, Sam specifically denied knowing any such thing, that contention being at the core of her defence. In this context, it was especially significant that the jury heard Kamalasanan’s assertion to the covert operative prior to Sam’s interview that ‘she knows everything now’. Regardless of proper directions, counsel submitted, such evidence could only have impermissibly influenced the jury when considering Sam’s professions of ignorance.

In order to make good the submission that the jury would have been — despite repeated directions from the judge to consider the cases separately — incapable of putting the evidence solely admissible against Kamalasanan to one side when considering the case against Sam, senior counsel for Sam drew attention to the address to the jury by senior counsel for the prosecution which showed, he submitted, the ease with which the two cases could be conflated, even by experienced counsel. The thrust of his submission was: if experienced counsel was unable to keep the two cases separate, what hope did the jury have? Counsel for Sam relied in particular on the following passage from the final address of senior counsel for the prosecution:[20]
[20]Emphasis added.

Now Arun Kamalasanan said this, to covert operative Jack. ... Covert Operative Jack said, ‘What, did he wake up and drink it when he went to?’. Arun Kamalasanan said this, ‘No, I holded [sic] him up.’ … Jack said. ‘Oh you poured it into his mouth.’ Answer, no audible reply. Jack, ‘When - when he was unconscious.’ Answer, ‘Yeah.’ So he holded him up, exactly what Dr Gunja said would need to be done.
Second point. The administering of the poison was done in a manner that would not cause burns, so again you remember Dr Gunja’s evidence about that. What Arun Kamalasanan says is normally the tongue will come off, burns off, so many things will happen, but it didn’t happen. So again Arun Kamalasanan is describing his knowledge about the fact that there might be burns on the tongue and that normally that might happen but in this case it didn’t happen because he knew to administer the poison in a particular way.
The third point is, the use of a sleeping tablet to sedate the deceased. Now remember that the deceased had Clonazepam in his system. This was consistent with having taken a couple of sleeping pills. Now it just so happens that the male accused told the covert operatives that he had given the deceased sleeping pills. You can rely on that confession.
The other thing to remember about the confession to the covert operatives is to not consider it in isolation. Consider the confession in the context of Arun Kamalasanan’s relationship with Sofia Sam. Consider the confession in the context that in his culture they don’t divorce. Consider the confession in the context that Arun Kamalasanan seems to know all about cyanide. In his record of interview he said that he knew of potassium cyanide, that it was contained in apples and tapioca. That he had researched cyanide at school. Consider the confession in the context that Arun Kamalasanan regarded covert operative Damien as his friend and a person he could trust.
We accept that not everything that the male accused says to the covert operatives is true. Indeed, we invite you to reject much of what he says. Arun Kamalasanan is a person who exaggerates and big-notes himself. He was very keen to show off to covert operative Damien and prove himself as being worthy of the criminal syndicate.
He talked about it being really easy, to take one man out without any trace. He gave covert operative Damien a package purportedly containing cyanide which in fact when analysed did not contain cyanide. He also made up an extraordinary story about Sofia Sam not even knowing that he was at the house that night and of initially drugging all members of the household by putting sleeping pills in an avocado shake.
In this regard it is fanciful to think that Arun Kamalasanan could sneak into the garage without Sofia Sam knowing and even more fanciful to think that he could get into the kitchen to put sleeping pills in an avocado shake without any of the three members of that household seeing him.
An avocado shake has been referred to in the evidence but it was purportedly an avocado shake that Sofia Sam prepared prior to visiting her sister, an avocado shake taken many hours before those in the house fell asleep.

Sam’s counsel submitted that it can be seen from this passage of the prosecution’s final address that counsel had been addressing evidence solely admissible in Kamalasanan’s case, but at two points introduced into the narrative evidence solely admissible in Sam’s case. The fact that an experienced prosecutor could unwittingly (but illegitimately) elide the evidence in the two cases demonstrates the impossibility of a jury of lay persons being able to intellectually separate the evidence admissible solely against each of the accused.

There is no doubt that some of the evidence admissible solely against Kamalasanan had the potential to cause prejudice to Sam. The trial judge was, however, astute to guard against that potential prejudice. As was observed in Gilbert:[21]

The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.

[21]Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J).

In the present case, we are of the view that the jury would have been capable of understanding and following the judge’s directions to consider the evidence admissible against Sam and Kamalasanan separately, and of excluding from their consideration of Sam’s case otherwise prejudicial material relevant only to Kamalasanan’s case.

We are fortified in that view, as we have indicated, by the fact that the judge gave repeated and forceful directions to the jury to consider each case separately, and specifically instructed the jury not to use Kamalasanan’s statements to police against Sam. That message was driven home more than once. For example, in his charge the judge directed the jury as follows:[22]

I will now give the formal direction about what separate trials mean. There are really two trials being heard together and we do that as a matter of convenience. In particular because there is an allegation of joint conduct in the commission of their crime is one of the 8 ways at least in which the case is put.
It is thought that such matters are better dealt with in the context of conducting a single trial without the need to repeat the evidence and so on, or such parts of the evidence as would need to be repeated.
But I remind you that you have got to be careful not to allow convenience to override justice. The accused and the prosecution are entitled to have the case against each accused considered separately. You must consider the case against each accused separately in light only of the evidence which applies to that accused.
You must ask yourselves in relation to each accused whether the evidence relating to that accused has satisfied you beyond reasonable doubt that he or she is guilty of the offence that he or she has been charged with. If the answer in either case is yes, then you should find him or her guilty. If the answer in either case is no, then you should find him or her not guilty.
You will note that I said you must consider the case against each accused in light only of the evidence which applies to that accused. That is because some of the evidence you have heard in this case is only relevant to the case against one accused or the other. If a particular piece of evidence is only relevant for one accused you may only use it when deciding whether or not that accused is guilty. You must not consider it in relation to the other accused.
So as I have already referred to the agreed facts, they are in the case of the individual you are dealing with separately. So, all of the dealings that Mr Kamalasanan with the undercover operatives is evidence in his case and his case alone. His record of interview is evidence in his case alone.

[22]Emphasis added.

We consider that the jury would have followed the trial judge’s directions to consider separately the evidence admissible in Sam’s and Kamalasanan’s cases respectively. But even could be concluded that there was undue danger that the jury was incapable of following the judge’s directions, we would nevertheless reject ground 2. As we endeavoured to convey when examining the contention that Sam’s conviction is unsafe and unsatisfactory, we consider that the evidence solely admissible against Sam rendered her conviction inevitable.[23]
[23]Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659.

Kamalasanan’s first conviction ground: Is the verdict unsafe and unsatisfactory?

Kamalasanan had legal aid for his sentence application, but not conviction. When announcing her appearance for Kamalasanan on his application for leave to appeal against sentence, however, his counsel — in the best traditions of the Bar — informed the Court that with respect to Kamalasanan’s applications concerning conviction she would ‘provide assistance to the extent that [she is] able’. In the event, counsel did her best to distil the essence of Kamalasanan’s complaints from the documents that he had prepared, and, indeed, formulated ground 3 for him. We wish to record our gratitude to counsel for her assistance.

As we have mentioned, Kamalasanan sought leave to appeal against his conviction out of time. At the outset of his oral submissions in this Court, we told Kamalasanan not to address the issue of extension of time, and invited him instead to say what he wanted to about his conviction. As a result, he made oral submissions with respect to conviction — his counsel later making some further submissions — the flavour of which may be gleaned from his opening remarks:

Your Honour, as you know, the heart of my conviction is based on the fake admissions and the contradictory and biased evidence by the expert witness.

We treated Kamalasanan’s first ‘ground’ — ‘Substantial miscarriage of justice occurred by partial analysis of evidence’ — as a complaint that his conviction is unsafe and unsatisfactory. From his written case — apparently he had hand-written it without the assistance of a trained legal practitioner — and his oral submissions it was possible (with some effort) to identify several distinct complaints:

· first, a miscarriage of justice occurred because the police did not seize material evidence at the crime scene (for example, the purple plastic cup containing orange liquid);

· secondly, his admissions to the covert operatives should not have been admitted into evidence because they were lies;

· thirdly, an error occurred because not all of the transcripts of his conversations with the covert operatives were put into evidence;

· fourthly, the surveillance evidence of him being seen with Sam should not have been admitted; and

· fifthly, the evidence is open to the interpretation that the deceased committed suicide, by ingesting the cyanide voluntarily.

In the course of his oral submissions, it became plain that Kamalasanan potentially was about to elicit material that was greatly prejudicial to him. We thus stood down for a period to permit counsel to speak to him. After the break, counsel helpfully put the following submissions on Kamalasanan’s behalf:

In terms of the specific matters that he wishes to raise which haven’t already been raised. He points to the fact that Ms Sam in her statement to police and in her interview which were before the jury – when one looks at that material, we get a sense of a gradual progression of symptoms from cyanide poisoning.
…
He wishes to raise the fact that in his culture, it’s impossible to commit a crime of any kind and that his family depends upon him. And that it wouldn’t benefit him to commit a crime of this sort because it would prevent his return to his country. So … it’s implausible that he would commit a crime of this type.
In terms of the relationship with the co-accused, he points out that the material itself did not support the Crown’s position of a very deep relationship in that the surveillance showed no evidence of intimacy … the relationship wasn’t as powerful as alleged by the Crown. … it wasn’t a sexual relationship. It was a deep relationship going back to college days. A deep friendship which was not intimate or sexual.
…
In terms of the diary … it’s pointed out that that diary ceased two and a half years before the killing. So it was … quite old.
…
He points out as well that in terms of that diary, if he committed this offence, … it wouldn’t make any sense to hold onto the diary for all that time. It’s implausible.
… there was an entry in that diary relied upon by [the prosecution] in the closing address …, ‘And yet she wrote in her diary on 30 January that she was waiting for him.’ The applicant makes the point … that diaries are very personal things and that there was nothing said about waiting for him to come over to Australia. Simply waiting for a phone call or contact of that nature. … He’s simply pointing out that there are different interpretations of diaries.
…
In terms of the entry … that Ms Sam made about ‘I would break down. Wish this had not happened. Can't sit awake anymore, I would broke down.’ Again, what’s actually meant there is simply that she was tired. It’s not in respect of anything more than that.
He’d like to point out that he had girlfriend at the time.
…
Before the covert operative, in terms of plausibility of the relationship, … he was enjoying his life here. Was [not] struggling. It simply doesn’t make sense that he would commit this offence.
In Ms Sam’s record of interview, she mentions that the deceased has sexual issues which is a massive issue for males … in his culture. And that when she suggested counselling that interview, he starts crying. And he puts this forward as one possible explanation for the alternative explanation of suicide, your Honour. Asks, can you exclude that he did not suicide?

Counsel then made submissions relevant to what became the third ground of appeal.

In our opinion, none of the complaints made under cover of the first ground has any merit.

First, it is difficult to see how the failure of attending police to seize any items — such as the purple plastic cup with orange liquid — could be the source of any miscarriage of justice. Police did not know that a crime had been committed, and did not appreciate the possible relevance that observed items subsequently might be seen to possess.

Secondly, Kamalasanan’s case at trial was that the admissions made to the covert operatives were all lies, a matter that the jury could properly evaluate. In our view, it was open to the jury to accept relevant admissions were true, even if parts of what Kamalasanan told the covert operatives were not true. There is no error in the use of that evidence and no arguable miscarriage of justice arises from the jury’s acceptance of those admissions. Indeed, we consider that what he told the covert operatives possessed powerful probative value. The fact that Mr Abraham had died from cyanide poisoning was not revealed even to his own family; yet Kamalasanan’s statements to the covert operatives revealed not only that cyanide poisoning was the means of death, but also the drinks that were used. Those facts must have been key to Kamalasanan’s conviction.

Thirdly, we are unable to see that the failure to tender all of the transcripts of conversations with the covert operatives can have been the source of any miscarriage of justice. It will be remembered that Kamalasanan was defended by senior and junior counsel. Had it been thought that Kamalasanan’s defence would be compromised by failure to introduce into evidence transcripts other than those that were in fact tendered, presumably counsel would have been astute to ensure that any necessary further transcripts were put before the jury. We note in this regard that Kamalasanan eschewed any reliance on the suggestion that his counsel were negligent or incompetent.

Fourthly, we consider that the surveillance evidence, in which Kamalasanan and Sam were seen together, plainly was relevant and admissible. The evidence was relevant to showing the ongoing relationship between them after the death of Sam’s husband.

Finally, the submission that suicide could not be excluded on the evidence cannot be accepted. In our view, the prosecution’s case for murder against Kamalasanan was completely overwhelming. When he spoke to the covert operatives, he knew that Mr Abraham had been poisoned with cyanide, in circumstances where only forensic officers and police knew that to be the case. Kamalasanan told the officers that the cyanide had been put into orange juice, and that he had ‘holded’ the deceased up to feed the cyanide-laced orange juice to him. This evidence was wholly consistent with that of Professor Gunja, that cyanide could have been administered to the sleeping deceased by propping him up and feeding him liquid containing cyanide in small doses. The correspondence of Kamalasanan’s explanation as to how he poisoned the deceased to the objective scientific evidence is striking. Indeed, it is devastating to Kamalasanan’s assertion of innocence.

None of the other matters raised by Kamalasanan has merit.[24]
[24]See [77] above.

Having conducted our own independent assessment of the evidence we are left in no doubt whatsoever that it was open to the jury to find Kamalasanan guilty of murder. Indeed, based on the evidence given at trial, we cannot see that any other verdict could realistically have been returned.

Kamalasanan’s second conviction ground: Is a television news item fresh evidence?

The applicant provided the Court with a video, which appears to be a news segment from Manorama News, a Malayalam language news channel. He claimed that the video shed light on whether the deceased committed suicide by voluntarily ingesting cyanide. Kamalasanan asserted that the video constituted fresh evidence.

A translation of the news segment was as follows:[25]
[25]The translation was arranged by the Office of Public Prosecutions.

News anchor: Relatives and people of Karavaloor village in Punaloor (district) of Kollam heard with shock the news, that [Abraham] was murdered by his wife Sophie.
‘If getting rid of [Abraham] was the aim, why was divorce not an option’ is the question family members are asking.
[Abraham] and Sophie met at church when they were young, fell in love and later married.

Reporter:Sophie returned to Melbourne after [Abraham’s] funeral at Karavaloor Marthoma church. Since that day, [Abraham’s] family has regularly visited [Abraham’s] tomb and prayed. But they were unaware that he was murderer [scil., murdered].
News anchor: [Abraham’s] smiling face is still vivid in family’s mind.
Two days after returning to Melbourne from Karavaloor (on holiday), it was the wife Sophie who informed the families that [Abraham] had died suddenly of cardiac arrest.
The body was brought back to Karavaloor and buried at Marthoma church. Sophie then returned to Melbourne, without raising any suspicion in anyone’s mind.
[Abraham] and Sophie were childhood friends, fell in love and got married. Both were active members of (choral) singing group.
Sophie moved to Melbourne for work and took [Abraham] to Melbourne only three years ago.
The days following the arrival of [Abraham’s] body for funeral at Karavaloor, Sophie was not talking to anyone and was sleeping in the bedroom. [Abraham’s] uncle (father’s brother) said that they thought that it was due to mental anguish/grief.

Uncle:Got a phone call in the morning, from my brother to inform me about [Abraham’s] death. He (Abraham’s father) said it was a silent attack. [Abraham] had gone back (to Melbourne) only two days before. Unusually, [Abraham] hugged and kissed me and said that he will send me money, only 50k (rupees), to repair the house because he himself had just bought a car. He doesn’t do that usually (hug and kiss).
My brother said that the body is coming and the funeral will be held at the local church, and [Abraham] would be buried at our father’s vault (family plot) and there should be a cortege.

As for Sophie’s, her mother’s and son’s behaviour, they were lying in a room as though they were tired.
Their behaviour was like a setting a scene for sympathy.
After the funeral, I went inside the house, saw them all discussing with brother-in-law.
Don’t know what they were talking about, but I saw Sophie was crying.

News anchor: Sophie, her elder sister and parents all live in Melbourne.
[Abraham’s] family cannot believe that Sophie had another lover.
Sophie and [Abraham’s] family live within two km of each other in Karavaloor.
[Abraham’s] parents were shattered when they found out that their son’s death was not natural and that he was poisoned by his wife.
The family now suspects that Sophie brought the body back to Karavaloor for burial to cover up and avoid suspicion.
Relatives find it hard to believe that Sophie, who was friendly towards everyone, is a murderer.

In written submissions, Kamalasanan complained that the italicised portion of the transcription immediately above is a mistranslation. He disputes that part of the transcript and asserts that what Mr Abraham’s uncle actually said was as follows:

[Abraham] said his body will come soon. Take me to church in a vintage push hearse, bury me in grandfather’s vault.

Kamalasanan also asserts that immediately after Mr Abraham’s uncle said this, the reporter asked, ‘Who said this?’, and the uncle answered, ‘[Abraham]’.

Kamalasanan submitted that what Mr Abraham’s uncle said in the news report demonstrates that Mr Abraham had been contemplating suicide. It is fresh evidence which lends support to Kamalasanan’s defence.

We disagree. Putting aside the second-hand hearsay nature of the putative evidence, and assuming in Kamalasanan’s favour that his version of the disputed part of the transcript is correct, by no stretching of the imagination can one draw from what Mr Abraham supposedly said to his uncle that he was either contemplating, or had a present intention to commit, suicide. It is thus unnecessary to consider the rules that govern the reception of fresh evidence.

Even had we been of the view that the evidence of the news report was relevant and admissible, however, we would nonetheless have rejected this ground. In our opinion, had the jury had the news report before them, Kamalasanan’s conviction for Mr Abraham’s murder would still have been inevitable.

Kamalasanan’s third conviction ground: Did the judge wrongly comment?

Ground 3 of Kamalasanan’s conviction application was, as we have mentioned, formulated by counsel. It asserts that a substantial miscarriage of justice occurred because the trial judge made a comment to the jury that the prosecutor had not referred to evidence that Kamalasanan had been home sick in bed at the time of the alleged murder because it had not previously been raised and had not been adverted to by Kamalasanan in his record of interview.

When cross-examined by Kamalasanan’s senior counsel, Aji Parameswaran, with whom Kamalasanan lived, agreed that Kamalasanan had returned from India ‘around 10 or 11 October’ 2015. He thought — but was ‘not sure’ — that Kamalasanan did not come out of his room for ‘two days’ was because he was sick.

Further, in Kamalasanan’s record of interview there was the following questions and answer:

Do you remember what you were doing on the day that [Mr Abraham] died?---I was at home, I think. I don’t remember. [Aji Parameswaran’s] wife’s mum was there.

Kamalasanan’s senior counsel put the following to the jury in his final address:

The reality is that [Kamalasanan] wasn’t at [Sam’s] house that night [of the death]. You will recall that he returned from India on 12 October. Aji [Parameswaran] gave evidence that [Kamalasanan] was living with him at this time and he was asked about [Kamalasanan] being at his house after his return from India.
He said that he recalled a time or the time when [Kamalasanan] came back from India in October 2015 and brought with him and gave to him some curry powder and tea. … [Kamalasanan] told him about spending time with his family. He said this. ‘My family was saying that he is not coming out from the room for the last two days. ...
He went on to say this. ‘Because he's not coming out from the toilet, not coming, not even drinking a glass of water’. Then it was put to him that the reason why he was not coming out was because he was sick. And he said, ‘I think so. I’m not sure’. Then His Honour pointed out that the witness was not speaking from his own knowledge. It was then put to him that his wife had told him that [Kamalasanan] was sick and he agreed with that.
Finally this question and answer were given. ... ‘Who told you that the reason why he wasn’t coming out of his room was because he was sick?’ ‘We don’t know whether he, ah, was sick or not because my wife just told me that he – I don't know what is wrong with [Kamalasanan] because he’s not coming out from the room. So I went to him and asked him whether there was any problem and he said nothing. He said the flight, you know, jet lag, or something like that.’
Well that’s the evidence, and in our respectful submission, you can rely upon that evidence. The defence case is that [Kamalasanan] was not at [Sam’s] house on the night of 13 October or in the early hours of 14 October, but was in … [Aji Parameswaran’s] flat. And there’s some evidence, in our respectful submission, to support that, which I just referred to.

In the course of his charge, when dealing with part of the address of Kamalasanan’s senior counsel, the judge said:

The other matter submitted by [counsel] was that there was evidence in which you can say Mr Kamalasanan was at home sick in bed. That is contained in the evidence of [Aji] Parameswaran. Well, it is a matter for you what you make of that evidence. It was not a matter averted to the prosecutor because it hadn’t been previously raised. It is not a matter adverted to by [Kamalasanan] in his record of interview — a comment of mine. When he denies involvement in the murder he does not say, ‘By the way, I was home in bed for three days.’ It’s a matter for you.

Kamalasanan’s counsel took an exception, but it seems plain that he did so having misunderstood what the judge had said, since he submitted that the judge ‘made comment that in his record of interview, Kamalasanan had not said that on the night he had been at Parameswaran’s place’. As the judge correctly observed in response:

No, that isn’t what I said. What I said was, he didn’t say he had been sick in bed for three days.

The judge did not redirect. He was justified in not doing so.

No alibi notice had been given by the defence,[26] yet senior counsel for Kamalasanan plainly attempted to raise an alibi in his final address. Self-evidently, no notice of alibi having been given, counsel was wrong to have attempted to advance an alibi. Quite clearly, no notice of alibi having been given, the prosecution could not reasonably have anticipated that Kamalasanan would attempt to rely on an alibi, and deal with it in the course of the prosecution’s final address. In those circumstances, the judge was entitled to make the comment that he did, redressing the imbalance caused by Kamalasanan’s counsel’s address.[27] And it must be said, we think, that the judge’s comment in restoring the balance was in any event somewhat benign.
[26]See Criminal Procedure Act 2009, s 190.
[27]McKell v The Queen (2019) 363 ALR 668, 679 [53] (Bell, Keane, Gordon and Edelman JJ).

But had we taken the view that the judge’s comment was unwarranted, we would not have upheld this ground of appeal. It could not reasonably have caused any substantial miscarriage of justice, since, as previously indicated, we consider that Kamalasanan’s conviction was inevitable.

Conclusion on Kamalasanan’s applications concerning conviction

Kamalasanan’s application for extension of time must, as we have said, be refused.

The principles relevant to such an application were summed up in Madafferi:[28]

The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[29] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[30] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[31] the length of the delay — and the reasons for it[32] — and the prospects of success should the extension be granted,[33] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[34] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[35] The discretion must, as we have said, be exercised according to the individual facts of each case.[36]

[28]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations as in original).

[29]Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA) (‘Jopar’).

[30]Ibid 707 [60].

[31]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).

[32]Ibid 614 [31].

[33]Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175, [25] (Priest JA).

[34]Jopar (2013) 44 VR 695, 707 [60].

[35]Ibid.

[36]Ibid.

Since all of Kamalasanan’s proposed grounds touching conviction are devoid of merit, it would be futile to grant an extension of time.

Kamalasanan’s sentence application

As we have indicated, we are of the view that Kamalasanan’s application for leave to appeal against sentence should succeed.

It is convenient to consider grounds 1 and 2 together. In substance, ground 1 asserts that the sentence is manifestly excessive and ground 2 contends that Kamalasanan’s head sentence of 27 years is manifestly disparate from Sam’s head sentence of 22 years.

In sentencing both offenders, the judge made the following observations of their roles:

I am satisfied that on the whole of the evidence [Kamalasanan was] the architect and driving force of the murder of Sam Abraham. To a large degree, that analysis is based upon what [Kamalasanan] told the covert operatives.
I am satisfied that [Kamalasanan’s] conduct was pre-meditated. [Kamalasanan] told the covert operatives that [he] had been planning the murder for three years, and that [he] had brought the cyanide to Australia during [his] trip back to [and from] India.
In the case against you, Sofia Sam, I am satisfied that you were involved in the murder of your husband. It is not possible to say what precise role you played, but I am satisfied that your husband could not have been murdered without your knowledge and acquiescence and that it is likely that the jury proceeded to find you guilty on that basis.
…
In particular, it is not possible to say what part you played in the planning of your husband's murder, or the extent of your physical involvement in his poisoning. As I said earlier, I am satisfied you must have had some degree of prior notice and participation, but not in a way that can be taken any further in assessing your culpability.[37]

[37]DPP v Kamalasanan [2018] VSC 340, [19]–[21], [23] (‘Reasons’).

His Honour correctly observed that this was a very serious crime of murder with a man being poisoned in bed in his home with his young son beside him.[38] The offending involved significant preplanning and the poison chosen as the ‘murder weapon’ was likely done so to avoid detection.[39] His Honour was satisfied that both accused knew that death ‘would probably be excruciating’,[40] although there was insufficient evidence to show that the victim did suffer in that way.
[38]Ibid [24].
[39]Ibid.
[40]Ibid.

Were Kamalasanan’s application for leave to appeal based on manifest excess alone, we would have had little difficulty in refusing leave to appeal against sentence. In our view, the head sentence of 27 years, in a serious case of murder and after a contested trial, is well within the range of sentences open to his Honour in the exercise of his sentencing discretion.

We have had more difficulty, however, with ground 2. Kamalasanan received a sentence that was five years longer than that imposed on his co-accused — a little more than 22 per cent greater. Counsel for Kamalasanan accepted — correctly, in our view — that there was little to choose between the subjective sentencing factors pertaining to either applicant. Both were of prior good character. Both had young children. Both are intelligent and well-educated. Both fundamentally and egregiously breached the trust they owed to their friend or spouse. The question under ground 2 really distils to this — can the identifiable distinctions between the roles played by Kamalasanan and Sam justify the five-year, 22 per cent disparity to which we have adverted?

The principles governing sentencing parity are well established. They were conveniently restated recently in Collins v The Queen:

Equal justice requires that like offences be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a ‘marked’ or ‘manifest’ disparity between sentences which gives rise to a justifiable sense of grievance on an appellant’s part, then the principle of parity may be said to have been infringed. However, no justifiable sense of grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way in which he or she did. When an appellate court considers whether it was open to the sentencing judge to differentiate, or not differentiate, in the way he or she did, the approach is relevantly analogous to that which arises where it is said that a sentence is manifestly excessive.[41]

[41][2015] VSCA 106, [23] (citations omitted) (Whelan, Santamaria and Beach JJA).

In our view, the sentence imposed on Sam was, in all the circumstances, lenient. She participated in the plan to sedate and then murder her husband by the administration of cyanide. By its verdict, the jury must have been satisfied, at the very least, that Sam acted together with Kamalasanan to murder her husband, and that she acted to support the agreement by permitting her co-accused to enter the house and to poison her husband by repeated small administrations of cyanide.

We consider that his Honour was correct in characterising Kamalasanan as ‘the architect and driving force’ of this plan.[42] By implication, this characterisation tends, however, to devalue Sam’s involvement in the offending. The verdict exposed Sam’s role as a full and willing participant in this serious premeditated crime. In our view, it was not open to his Honour to distinguish between Kamalasanan and Sam to the extent that he did. The disparity of five years between head sentences is sufficient, in our view, to create in Kamalasanan a legitimate sense of grievance.
[42]Reasons [19].

We will grant Kamalasanan’s application for leave to appeal against sentence on ground 2 and allow the appeal against sentence. In place of the original head sentence, we will order that Kamalasanan be imprisoned for 24 years. We will further order that he serve 20 years’ imprisonment before becoming eligible for parole.

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[2019] VSCA 180

16 August 2019