Meade v The Queen
[2021] VSCA 74
•29 March 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0022
| ROBERT MEADE | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | BEACH, KENNEDY and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 March 2021 |
| DATE OF JUDGMENT: | 29 March 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 74 |
---
CRIMINAL LAW – Application for leave to bring second appeal – Criminal Procedure Act 2009 s 326A – Murder conviction – Fresh and compelling evidence of alibi – Whether evidence is reliable – Evidence neither credible nor a trustworthy basis for fact-finding – Application dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr B F Kissane QC with Mr T Bourbon | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
KENNEDY JA
WHELAN JA:
On 1 July 2011, Sally Brooks was savagely attacked in her home in Donvale, a suburb of Melbourne. She died of the injuries she sustained 10 days later, on 11 July 2011. In 2013, her former husband, Robert Arthur Meade, was tried and convicted of her murder. He was sentenced to a term of imprisonment of 23 years with a non-parole period of 19 years.[1] Mr Meade appealed his conviction. That appeal was dismissed in 2015.[2]
[1]R v Meade [2013] VSC 682.
[2]Meade v The Queen [2015] VSCA 171 (‘the Appeal Judgment’).
The case against Mr Meade at trial was circumstantial. There was strong evidence of a motive. There was evidence that he had the opportunity to kill his wife in Melbourne, notwithstanding that he lived and worked in Adelaide at the time. Further, the circumstances by virtue of which that opportunity had been created were open to be seen as incriminating. There was evidence of Mr Meade’s conduct both before and after the murder which was also open to be seen as incriminating. There was no evidence, scientific or otherwise, which directly linked Mr Meade to the scene of the crime in Donvale on the day of the murder.
Mr Meade pleaded not guilty at his trial. He did not give evidence. He had made a statement to South Australian police on the night of 1 July 2011. When interviewed by Victoria Police he exercised his right to silence.
Mr Meade now applies for leave to bring a second appeal under s 326A of the Criminal Procedure Act 2009 (‘the Act’). He contends that there is fresh and compelling evidence that should, in the interests of justice, be considered on a second appeal. The evidence is that of a fellow prisoner, who has since died, named Scott Leslie Martin. Before he died, Mr Martin swore an affidavit in which he deposed to having seen Mr Meade in the Strathbogie Ranges, far from Donvale, at the time the prosecution alleged that Ms Brooks was attacked.
The relevant legislation and the applicable principles
Section 326A of the Act relevantly provides that a second or subsequent appeal against conviction may be brought if the Court of Appeal gives the convicted person leave to appeal.
Section 326C sets out the circumstances in which the Court may grant that leave. The Court must be satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. Evidence is ‘fresh’ if it was not adduced at the trial and could not, even with the exercise of reasonable diligence, have been adduced at the trial. The legislation provides in s 326C(3)(b) that evidence is ‘compelling’ if:
(i) it is reliable; and
(ii) it is substantial; and
(iii) either —
(A)it is highly probative in the context of the issues in dispute at the trial of the offence; or
(B)it would have eliminated or substantially weakened the prosecution case if it had been presented at trial.
The first application for leave to appeal under these provisions was brought before this Court in Roberts v The Queen (‘Roberts’).[3] This Court held that eleven basic principles emerged from the language of the statute and from the authority of a decision of the High Court in the context of broadly similar legislation in South Australia, Van Beelen v The Queen (‘Van Beelen’).[4] The eleven basic principles are, in summary, the following:[5]
[3]Roberts v The Queen [2020] VSCA 58 (‘Roberts’).
[4]Van Beelen v The Queen [2017] 262 CLR 565 (‘Van Beelen’).
[5]Roberts v The Queen [2020] VSCA 58, [40]–[51].
1.The section manifests an intention that the finality of the criminal process yield in the face of fresh and compelling evidence which satisfies an appellate court that there has been a substantial miscarriage of justice.
2.The right to seek leave to appeal is additional to, and to be contrasted with, the mechanism of executive referral in the case of a petition for mercy. The leave requirement is intended to prevent successive meritless applications.
3.The statutory preconditions for the grant of leave under the new legislation may be compared and contrasted with the statutory provisions governing the grant of leave in the ordinary case.
4.The notion of fresh evidence as opposed to new evidence reflects an underlying concept commonly applied by appellate courts.
5.The fresh evidence must have the qualities prescribed by s 326C(3). It will not be sufficient for the purpose of leave to establish that it is reasonably arguable that the evidence has these qualities.
6.The onus is upon the applicant to satisfy the Court that the preconditions to the grant of leave are met.
7.The words ‘reliable’, ‘substantial’ and ‘highly probative’ are to be given their ordinary meanings. In that context, the Court in Roberts quoted a passage from Van Beelen. Amongst other things, in that passage the High Court observed that:
The criterion of reliability requires the evidence to be credible and provide a trustworthy basis for fact finding.
8.The Victorian legislation has a component not present in the South Australian statute, being that evidence is ‘compelling’ if it would have eliminated or substantially weakened the prosecution case.
9.Section 326C has the further condition that it is in the interests of justice that the fresh evidence be considered on appeal.
10.The notion of a substantial miscarriage of justice is not limited to consideration of evidentiary questions but may embrace questions of irregularity in the trial.
11.The concept of the ‘interests of justice’ in the context of the grant of leave is not to be conflated with the ultimate issue of whether there has been a substantial miscarriage of justice.
The relevant issue on this application
Leave was granted in Roberts because police misconduct had affected the fairness of the trial to such an extent that it was in the interests of justice that leave to appeal be granted.
The High Court decision in Van Beelen concerned fresh expert evidence on issues of forensic science, as did earlier South Australian decisions in R v Keogh [No 2],[6] and R v Drummond [No 2].[7]
[6]R v Keogh [No 2] (2014) 121 SASR 307.
[7]R v Drummond [No 2] [2015] SASCFC 82.
The character of the fresh evidence in this case differs from the character of the evidence which was the subject of the decisions in Roberts, Van Beelen and the earlier South Australian cases.
On the one hand, unlike Roberts, Van Beelen and the earlier South Australian cases, here the significance of the fresh evidence, if it were accepted, is not a matter which requires analysis. If Mr Martin’s evidence were accepted, Mr Meade could not have committed the murder in the manner alleged by the prosecution. He would have been more than 100 kilometres away from the scene of the crime at the relevant time. On the other hand, unlike Roberts, Van Beelen and the earlier South Australian cases where the reliability of the relevant evidence (concerning police misconduct and issues of forensic science) was not in issue, here the reliability of the fresh evidence is a matter of real contention.
The respondent concedes that Mr Martin’s evidence is ‘fresh’.
If Mr Martin’s evidence is reliable, it is substantial and highly probative, and it would have eliminated or substantially weakened the prosecution case. Thus, the issue before this Court is whether Mr Meade has satisfied the Court that Mr Martin’s evidence is reliable. Leave can only be granted if the applicant has discharged the onus of establishing the fresh evidence is credible and provides a trustworthy basis for fact finding.
Material relied upon by the applicant
On 10 January 2020, Mr Meade filed notice of this application for leave under s 326A of the Act. On the same day, Mr Meade also filed what purported to be an application for an extension of time within which to appeal under s 313 of the Act. That application was misconceived. Mr Meade has already had an appeal. The only issue now to be determined is whether he should be granted leave to bring a second appeal. That is the matter which is the subject of his application under s 326A.
Mr Meade has affirmed three affidavits in support of the application. The first, affirmed on 10 January 2020, identifies the fresh evidence as being an affidavit sworn by Mr Martin on 11 September 2018. It asserts that that evidence ‘establishes unequivocally’ the absence of the applicant from the crime scene at the time of the assault.
Mr Meade affirmed a further affidavit on 28 September 2020 headed: ‘Affidavit Outlining the Applicant’s Recollection of the Chronology of Events Leading to Mr Martin’s Admissions’.
In that affidavit, Mr Meade deposed that in around July 2017, he commenced the role of a ‘peer listener’ within Barwon Prison under the guidance of a senior clinician named Ms Denise Reid. He explained his role as a peer listener and the issues he addressed in his dealings with prisoners in that context. He deposed that one of the prisoners with whom he commenced having dealings in or around September 2017 was Mr Martin. Mr Martin and Mr Meade were both at the relevant time accommodated in the Eucalypt Unit of Barwon Prison. Mr Martin requested Mr Meade’s assistance in liaising with the Adult Parole Board. Mr Meade deposed that on Saturday 24 February 2018, Mr Martin approached him with a letter from the Adult Parole Board which both he and Mr Martin found confusing. Mr Meade deposed that on Monday 26 February 2018, Mr Martin asked him to accompany him to the Eucalypt Unit console in order to discuss the letter from the Adult Parole Board with a senior Corrections officer who might then be able to refer the matter to the Assessment and Transition Coordinator at Barwon Prison.
Mr Meade deposed that there was a discussion at the console about the letter and about the Adult Parole Board’s requirements with two Corrections officers, Mr Michael Baxter and Ms Lauren Bath. As the conversation concerning the parole issues was coming to a close, Mr Meade deposed that Mr Martin said to him:
We have met, just briefly, once before up in the Strathbogie’s. Don’t you remember? You’re from New South Wales aren’t you? You drive a blue Landcruiser with yellow New South Wales plates. You met me, spoke to me up in the bush.
Mr Meade deposed that he was ‘stunned’ by what was said. He deposed that Mr Baxter commented upon Mr Meade’s reaction saying:
You can pick your jaw up off the floor now Robert.
Mr Meade deposed that Mr Martin then explained that Mr Meade might not have recognised him because he had put on at least 50 kilograms since then and his hair was different.
Mr Meade deposed that 20 minutes later he requested Mr Martin to accompany him to the day room. He says that he asked Mr Martin to repeat the statement he had made, which Mr Martin did. Mr Meade deposed that he recognised that he needed to document Mr Martin’s recollection. He deposed that he was concerned about the possibility of changing Mr Martin’s memory through conversation so he did not ask further questions but requested Mr Martin to document the information on his own and suggested that the appropriate format would be a sworn affidavit. Mr Martin said he would be glad to do this.
Mr Meade deposed that approximately an hour or so after the conversation at the Eucalypt Unit console, Ms Bath ‘made opportunity to speak to me directly in relation to Mr Martin’s admissions’. Mr Meade deposed that he was later advised by Ms Bath that ‘she had documented her account of Mr Martin’s admissions’ and of his ‘disturbed emotional state of mind’ in a note on a file.
Mr Meade deposed that on 15 March 2018, Mr Martin gave him a four-page signed handwritten statement. He says that he ‘received advice’ that he should request an affidavit. He says that Mr Martin provided him with a two-page affidavit sworn 11 September 2018.
Mr Meade deposed that at no time did he ever discuss any aspect or detail of his criminal matter with Mr Martin and at no time did he ‘collude or concoct’ anything with Mr Martin. Mr Meade deposed that he never developed a personal relationship with Mr Martin other than in his capacity as a peer listener. He deposed that he had had no social interaction with Mr Martin.
Finally, Mr Meade deposed to the appreciation which he has received from the prison administration for his work as a peer listener.
Mr Meade affirmed a second affidavit on 28 September 2020 which produced a four-page handwritten statement of Mr Martin bearing the date 15-3-18. The handwritten statement begins with an explanation of Mr Martin’s relationship with Mr Meade. It asserts that they were ‘not friends socially’, but that in the period September 2017 to February 2018 Mr Martin had asked Mr Meade for his help on 15 different occasions, all to do with Mr Martin’s parole. The statement sets out an account of what had occurred on 26 February 2018 in essentially the same terms as those deposed to by Mr Meade. In relation to meeting Mr Meade in the Strathbogie Ranges, Mr Martin stated that he went to the area because he wanted to get some garden rocks. He specified the date of the encounter with Mr Meade, and gave an account of the death of his dog ‘Trixie’ on that day shortly after the encounter. After laying Trixie to rest in the bush the statement says he drove back to Wodonga and didn’t worry about the rocks.
Finally, Mr Meade has filed an affidavit of Mr Martin sworn 11 September 2018. This is the fresh evidence upon which he relies.
Mr Martin’s affidavit sworn 11 September 2018 reads as follows:
I, Scott Leslie Martin, now incarcerated at Barwon Prison swear/affirm and declare the following:
1.On Monday 26th February 2018 while at the console I told Rob that I had met him before in the Strathbogie Ranges. At that time Rob appeared surprised and even more so when I described his vehicle.
2.At that time I had no idea why Rob was in gaol I had no idea of the reasons why Rob was in gaol or that it was related to anything in 2011.
3.I met Rob once before in the Strathbogie Ranges in 2011, and I remember the day as Friday 1 July 2011.
4.At this meeting Rob was driving a dark blue Landcruiser station wagon with yellow New South Wales number plates.
5.I was parked at a parking area next to an old mine where people had dumped trash, and there was a table a chairs.
6.I remember the time I saw Rob in the Strathbogie Ranges as between 8.30 am and 9.00 am.
7.At that time Rob was driving slowly from right to left in the direction towards Bonnie Doon.
8.The weather was very cold, very foggy and wet because there had been a few showers during the night.
9.Rob stopped his 4WD near me and I noticed his front passenger window come down. He was alone and I remember he was wearing a beanie. He asked me if I was okay. I asked him what he was doing because he was from New South Wales. He said something about looking for gold or searching for gold, and in the rain I gave him a ‘thumbs up’ and he drove off.
10.I was in the Strathbogie Ranges looking for garden rocks.
11.I was driving a Ford Falcon wagon.
12.I remember the day as Friday 1 July 2011 because my dog Trixie died that day, at the location where I met Rob.
13.Trixie died about 20 minutes after Rob left. I found her lying dead down in the old mine area next to some old rusty bent star pickets next to a big tree.
14.I have not had a dog since that time.
15.At the console on Monday 26 February 2018 I told Rob and the Officers that he may not remember me because I am now 50kg heavier and have different hair.
16.I have stopped at that location only once, and it was the day I saw Rob.
17.I am 49 years old and have no relationship with Rob.
18.I have nothing to gain by providing this information and do so gladly because it is the truth.
19.These comments are made freely and are true.
20.The way in which this information was revealed was accidental and by chance.
Mr Meade applied to the Court for production of the note which Ms Bath had made of her discussion with him on 26 February 2018 under s 317 of the Act. That application was granted by a judicial registrar on 24 November 2020. The note was then produced and is now before the Court.
Ms Bath’s note dated 26 February 2018 reads as follows:
Today Robert approached me and asked if we could chat in the office. Robert appeared shaken and upset. He said that the earlier conversation that he had at the console with Scott Martin 168290 had really messed with his head. Earlier at approx 09.30 hrs Meade was at the console with Martin who out of the blue told Robert that he knew or met him on the outside before. Scott asked if he drove a Blue landcruiser with yellow & black plates to which Robert with a shocked look on his face replied ‘yes’. Scott said he saw him in the Strathbogie Ranges. Robert’s demeanour was clearly upset and shaken and they left the console together. I asked Robert why this conversation has affected him so much & he said that this information could have a bearing on his ongoing appeal. Robert said that he is going to make a few phone calls to make more enquiries. As Robert’s demeanour was visibly changed I asked Robert if he was ok to which he said ‘yes’. I asked him if he would like to speak to a psych nurse and he said he is alright for now. I encouraged Robert to speak up & seek help if his mental state changes. I also told Robert that I am also here if he needs help.
Mr Meade also applied under s 318 of the Act seeking orders that Mr Baxter, Ms Bath and Ms Reid attend the Court to be examined.
Section 318 applications and evidence given
Mr Meade affirmed an affidavit in support of his applications under s 318 of the Act on 29 September 2020 (dated 28 September 2020). In that affidavit, he indicated that he requested leave from the Court to examine Mr Baxter and Ms Bath about the conversation on the morning of 26 February 2018 at the console in the Eucalypt Unit, as well as to address what was described as ‘personal information’ concerning Mr Martin and Mr Meade. Given the centrality of what occurred at the Eucalypt Unit console on that day to Mr Meade’s application under s 326A, we acceded to his application to hear oral evidence from Ms Bath and Mr Baxter. Mr Meade’s affidavit concerning Ms Reid indicated that she had no relevant evidence to give concerning what had occurred at the Eucalypt Unit console, or concerning Mr Martin. The affidavit indicated that her evidence would concern her observation of Mr Meade in his role as a peer listener, and explanations of a number of background matters. We did not consider that proposed evidence to be sufficiently relevant to warrant an order under s 318, and that application was refused in relation to Ms Reid.
Both Ms Bath and Mr Baxter gave evidence before us. They each described Mr Meade as an exemplary prisoner who had, in their experience, always conducted himself well. They were unaware of any occasions upon which he had deceived them, any other corrections officer, or any other person.[8]
[8]Transcript of Proceedings, Meade v The Queen (Supreme Court of Victoria – Court of Appeal, Beach, Kennedy and Whelan JJA, 22 March 2021) 8 – 10, 12, 20 (Ms Bath), 23-24, 28 (Mr Baxter).
Ms Bath confirmed the accuracy of the note which she had made of the events on 26 February 2018.[9] She said that she made the note for two reasons, because of her concern in relation to Mr Meade’s reaction to the conversation, and because Mr Meade had asked her to document what had occurred.[10]
[9]Ibid 16 – 17.
[10]Ibid 17.
Both Ms Bath and Mr Baxter gave evidence that Mr Meade’s reaction to what Mr Martin had said in their presence on 26 February 2018 seemed to be genuine.[11]
[11]Transcript of Proceedings, Meade v The Queen (Supreme Court of Victoria – Court of Appeal, Beach, Kennedy and Whelan JJA, 22 March 2021) 18 (Ms Bath), 26-27 (Mr Baxter).
Material relied upon by the respondent
The informant on the investigation of Ms Brooks’ murder, Kyle Simpson, affirmed an affidavit on 21 July 2020 setting out the results of inquiries which he had made after reviewing Mr Martin’s affidavit.
The principal relevant matters deposed to are as follows:
(1)Mr Martin died on 19 June 2019. A post-mortem and toxicology examination indicated that the cause of his death was mixed toxicity.
(2)Mr Martin had an extensive criminal history over a period of 27 years including numerous drug, violence and dishonesty offences. The dishonesty offences included offences of theft, burglary, aggravated burglary, the retention and handling of stolen goods, dealing with property suspected to be the proceeds of crime, and obtaining financial advantage by deception from a Commonwealth entity.
(3)Mr Meade and Mr Martin were detained together in the Eucalyptus Unit at Barwon Prison between 6 June 2017 and 1 October 2018.
(4)A statement obtained from Mr Martin’s mother says that Mr Martin spoke of a fellow prisoner who was ‘a really good bloke’, in jail for murder, who had been ‘framed’. Mr Meade wrote a letter to Mr Martin dated 30 January 2020.
(5)Mr Martin’s family had owned a fox terrier named ‘Trixie’ but that was approximately twenty years ago, and that dog died of old age. Inquiries of Mr Martin’s family and neighbours reveal that he did not own a dog of that name in 2011.
(6)Mr Martin suffered from health issues in 2011 which, at times at least, severely restricted his mobility.
Relevant aspects of the evidence at trial
The evidence at trial was canvassed in some detail in Mr Meade’s appeal against conviction. It is neither necessary nor desirable to canvass the full detail of the case against Mr Meade but certain aspects of the evidence are relevant to the application now before the Court.
As indicated at the outset, there was strong evidence of a motive.
Ms Brooks was English. She and Mr Meade met in Australia while she was holidaying. She returned to the United Kingdom, came back to Australia, and then they married in 1999 in the United Kingdom. They had three children who, at the time of Ms Brooks’ murder, were aged 10, 9 and 7. Mr Meade and Ms Brooks separated a number of times before eventually divorcing in 2009. Mr Meade remarried in February 2011. At the time of Ms Brooks’ murder Mr Meade was living with his new wife (referred to in the Appeal Judgment as ‘IA’) in Adelaide, and he was working as a geologist full-time for a company in Adelaide.
In 2010 Ms Brooks told Mr Meade of her wish to relocate to the United Kingdom with the children. After initially opposing the idea, which prompted Ms Brooks to commence proceedings in the Family Court, in March 2011 Mr Meade consented to orders permitting Ms Brooks to take the children to the United Kingdom. Ms Brooks and the children were due to leave Australia for the United Kingdom on 8 July 2011. The last day of school for the children was the day of Ms Brooks’ murder, Friday 1 July 2011.
In June 2011 Mr Meade had a conversation with a work colleague, Mr Nesbitt, in relation to his ex-wife. According to Mr Nesbitt’s evidence at trial, Mr Meade told Mr Nesbitt a series of extraordinary lies about his ex-wife and his children. He falsely told Mr Nesbitt that Ms Brooks was involved in hard drugs and alcohol and was in a relationship with someone involved with hard drugs. He falsely told Mr Nesbitt that his daughter had been raped in his ex-wife’s presence. He falsely told Mr Nesbitt that his daughter had been unable to testify against his ex-wife’s ‘boyfriend’ without permission from both parents and that Ms Brooks had refused to give permission. He falsely told Mr Nesbitt that his son had been tied to a chair and beaten in 2010.[12]
[12]Appeal Judgment (n 2), [38]–[45]; Transcript of Proceedings, R v Meade (Supreme Court of Victoria, Weinberg JA, 17 September 2013) 505–544.
It is noted that there are some discrepancies in the page numbers between various versions of the trial transcript. The page numbers referred to in this judgment pertain to the version of the transcript used for the 2014 appeal.
Mr Nesbitt’s evidence was that Mr Meade asked Mr Nesbitt for his assistance. He did so in such a way as to prompt Mr Nesbitt to ask him whether he was looking for someone to perform ‘a hit’. Mr Nesbitt said this would be a ‘bad idea’ and suggested other legal means of addressing the problem including consulting a lawyer. In response, Mr Meade told another lie about his ex-wife. He said that she was seeing ‘an ex-judge’ and that a private investigator who Mr Meade had engaged to gather evidence against her had been ‘warned off’. After the conversation Mr Nesbitt sent Mr Meade an email in which he repeated his warning against ‘doing anything that is not above board’. Mr Meade subsequently asked Mr Nesbitt to delete that email.[13]
[13]Ibid.
As this Court observed upon Mr Meade’s appeal, Mr Nesbitt’s evidence of what Mr Meade had said about his ex-wife in June 2011 was open to be seen by the jury as an expression of ‘the true intensity of his animosity towards her’.[14]
[14]Appeal Judgment (n 2), [48].
As indicated earlier, there was also evidence of opportunity. That opportunity was created in circumstances open to be seen as incriminating in themselves. On Monday 27 June 2011, Mr Meade left his workplace in Adelaide on the basis that he was ill. On each of the following three days, being Tuesday, Wednesday and Thursday, he sent messages to his work falsely claiming to be at home sick. In fact on the same day he left work, the Monday, he made a booking at the Molesworth Hotel in Victoria for three nights, Tuesday 28 June, Wednesday 29 June and Thursday 30 June. The Molesworth Hotel is approximately 40 kilometres south of the Strathbogie Ranges and approximately 140 kilometres north of the suburb of Donvale.
The only police statement made by Mr Meade in relation to his whereabouts at the relevant time was a statement made to South Australian police late on the evening of 1 July 2011 after he had returned to Adelaide. He said:
I left Adelaide @ 5:00 am on Tuesday 28 June 2011 to drive to St Arnaud VICTORIA for work. I stayed at the Molesworth Hotel which is in the township of Molesworth, VICTORIA. During my stay which was for prospecting (GOLD) I worked in the Strathbogie Ranges and I stayed there for the entire time. I made the trip alone & I did not work with anyone whilst there.
On the morning of the murder, Friday 1 July 2011, between 4:00 am and 11:00 am Mr Meade’s mobile phone was either off or in a place from which there was no reception.[15]
[15]Appeal Judgment (n 2), [66]–[70].
Mr Meade’s visit to Victoria was not ‘for work’ in the sense that it was not in any way related to the duties for which he was employed in Adelaide. His employer was falsely told by Mr Meade that he was ill and at home. An explanation suggested to the jury by defence counsel at the trial was that this was some form of unauthorised trip for his own private business purposes.[16]
[16]Transcript of Proceedings, R v Meade (Supreme Court of Victoria, Weinberg JA, 3 October 2013) 1160.
Mr Meade had undertaken a similar journey to Victoria between Wednesday 8 June 2011 and Friday 10 June 2011. On that occasion he had also stayed at the Molesworth Hotel. Mr Meade’s telephone records revealed that on 9 June 2011 he was in the Donvale area. In text messages to Ms Brooks he falsely told her that he was unemployed but would be starting a new job on 1 July, and also that he was in Jamieson when he was in fact in the Donvale area.
The prosecution contended that the earlier trip to the Molesworth Hotel and to Donvale was a ‘dry run’ for his later trip when, the prosecution alleged, he had murdered his wife.
There was a great deal of post-offence conduct that was relied upon by the prosecution. For present purposes, the matters of relevance are certain covertly recorded discussions between Mr Meade and IA concerning his whereabouts on the morning of 1 July 2011, and Mr Meade’s activities in September 2011.
In August 2011 listening devices were installed in Mr Meade’s home and conversations between Mr Meade and IA were recorded. Both Mr Meade and IA were focused upon the issue of where he was on the morning of 1 July 2011.
The only evidence before the jury concerning what Mr Meade now contends to be the alibi established by Mr Martin’s affidavit is contained in Mr Meade’s discussions with his wife in the covertly recorded conversations.
In various conversations, at the urging of IA, Mr Meade identified persons who saw him in the Strathbogie Ranges or in nearby towns on that morning. He identified a man having a cigarette at the top of Cockers’ Sluice at 9:00 am, a man in a yellow ute that he passed at 9:25, a man named ‘Pieter’ in a takeaway food shop from whom he bought potato cakes, and a person who might identify him from a coffee shop called ‘Frostbite’ where he bought coffee.
In the Appeal Judgment this Court addressed these conversations in detail.[17] Whereas Mr Meade’s wife (IA) continually sought to encourage him to attempt to identify and locate persons who could confirm his presence far from Melbourne on the morning of 1 July 2011, he persistently found reasons for not investigating.
[17]Appeal Judgment (n 2), [77]–[86].
In September 2011 Mr Meade embarked on a flurry of activity in the Molesworth district. He went to the shop where he says he bought the potato cakes, he went to the shop where he says he bought the coffee, and he visited other places in the area. He went to great lengths to ensure that those who he approached would remember him, giving ‘Pieter’, for example, a small nugget of gold. He never asked the shop proprietors whether they could confirm that he had been there on the morning of 1 July 2011.[18]
[18]Appeal Judgment (n 2), [94]–[100].
In both the trial and on the appeal counsel for Mr Meade had to address the evidence of the lies which Mr Meade had told about matters related to the case, and other unrelated matters as well.
In his final address to the jury, senior counsel for Mr Meade addressed this position as follows:[19]
And you all know a bit about Mr Meade; complicated, unusual chap, in some ways you could say capable, competent geologist, some ways eastern suburbs eccentric, well spoken chap. But he does have an exaggerating, confabulating, trying to organise the facts to suit himself. That’s what he’s like. It was his personality before any of this happened. What do you make of that? It’s not sinister to say that he rescued Chelsea Clinton.
It’s just him, it’s just a bloke who under pressure, perhaps under social pressure, perhaps when he’s not feeling confident of himself, could be all sorts of reasons for it, confabulates, rabbits on, exaggerates, organises the facts to suit himself regardless of whether they’re true or not, and it was a marvellous piece of evidence in this case, you know, it’s not the time for me to make my silly jokes in court, you know, but sometimes that happens, but it’s not the time now. But, you know, there was a sad side, and a comic side to all those things that he said, rescuing Chelsea Clinton, you know, being a spy, geology is just a cover, well it’s not just a cover. That’s what he is. He’s a geologist. So that’s the bloke who panicked, that’s the bloke who was put under pressure when the South Australians came to town and said to him ‘We’re taking your boots’. That’s why (indistinct) about the way it did. It’s not because he’s sitting there thinking ‘I have a plan’. He talks rubbish, he talks cloud after cloud after cloud of words.
[19]Transcript of Proceedings, R v Meade (Supreme Court of Victoria, Weinberg JA, 2 October 2013) 1130.
The reference to ‘boots’ was a reference to a matter which was the subject of considerable evidence at the trial but which it is unnecessary to address in this context.
The reference to Chelsea Clinton was a reference to evidence given by Mr Meade’s friend, Bernard Michaelsen. In the course of cross-examination by Mr Meade’s counsel, Mr Michaelsen described a conversation in which Mr Meade had told him that he was an undercover spy who had rescued Chelsea Clinton from kidnappers.[20] Mr Michaelsen also gave an account of Mr Meade having told him that he had bashed a lover of Ms Brooks and been sentenced to a term of imprisonment but that through ‘some influential friends’ he had been able to organise that his sentence was commuted to 2000 hours of community service.[21] All of this was untrue. As was confirmed in the cross-examination of the informant at the trial by Mr Meade’s counsel.[22]
[20]Transcript of Proceedings, R v Meade (Supreme Court of Victoria, Weinberg JA, 18 September 2013) 558-559.
[21]Ibid 550.
[22]Transcript of Proceedings, R v Meade (Supreme Court of Victoria, Weinberg JA, 1 October 2013) 986-987.
On the appeal, Mr Meade’s counsel adopted a similar characterisation of Mr Meade’s lies to that which had been adopted by his counsel at the trial.[23]
[23]Transcript of Proceedings, Meade v The Queen (Supreme Court of Victoria – Court of Appeal, Maxwell P, Redlich and Whelan JJA, 17 November 2014) 15.
On both his trial and on his appeal, there was never any controversy about the fact that Mr Meade had told a number of lies about matters relevant to the case and other matters which were raised by the evidence in the case.
In the context of the matters now relied upon by Mr Meade, one of his lies may be seen to have particular relevance. It concerned a retired police officer, who had been a friend or acquaintance of Mr Meade, named David Roger Reid, referred to as ‘Roger’. In the covert recordings, Mr Meade told IA the following concerning what he said had been advice that Mr Reid had given him:[24]
He said I only have two options; he didn’t know if either was best ‘cause both had potential downsides. The first option was to find the man in the yellow ute and bribe him. The second option was to find anyone. ‘Cause he said, the chances of finding someone now able to remember anything on that day is smaller than this one.
[24]Transcript of Listening Device Recordings 3647; read to the Court on the appeal by Mr Meade’s counsel at Transcript of Proceedings, Meade v The Queen (Supreme Court of Victoria – Court of Appeal, Maxwell P, Redlich and Whelan JJA, 17 November 2014) 48.
Mr Reid gave unchallenged evidence at the trial that he had never discussed the case with Mr Meade, and had not in fact spoken to him at all for many years.[25]
[25]Transcript of Proceedings, R v Meade (Supreme Court of Victoria, Weinberg JA, 17 September 2013) 493–494.
Submissions on behalf of the applicant
The applicant’s written case contained a good deal of florid material in relation to the Crown case, describing it as speculative, dishonest, illegitimate and fanciful and involving reconstruction and fabrication. This was of little assistance and, in many respects, was an attempt to reargue matters which had been dealt with in his appeal.
Insofar as the written case was relevant to this application, reliance was placed upon what was said to be the ‘accidental, unforeseen, and surprising manner’ in which the fresh evidence came to Mr Meade’s attention, which was said to be ‘supported and corroborated’ by Ms Bath’s note. The submission emphasised the ‘unique, emotional and memorable reasons’ underlying Mr Martin’s recollection, a reference to the account of the death of the dog Trixie.
The submission referred to the reference made in the covert recordings to Mr Meade having seen a man at 9:00 am at Cockers’ Sluice, and to his statement to the South Australian police that he was in the Strathbogie Ranges on the morning of 1 July 2011. It was submitted that these statements have now been revealed to have been correct by Mr Martin’s affidavit.
Mr Meade’s submission relied upon authorities concerning the reception of fresh evidence on a first appeal. In that context, it was submitted that had the jury heard Mr Martin’s evidence, they ‘must’, as distinct from ‘might’, have entertained a doubt as to his guilt.
In his oral submissions, Mr Meade emphasised some of the matters set out in his written case. He particularly emphasised the cogency of Mr Martin’s account given the knowledge he displayed of relevant matters, including that Mr Meade had been wearing a beanie, had been driving a dark blue Landcruiser with New South Wales number plates, had said that he was in the area to do with something about gold, and that the weather was cold and wet. Mr Meade also emphasised what he described as the spontaneous way in which Mr Martin had revealed the fact that he had seen Mr Meade in the Strathbogie Ranges.
Mr Meade relied upon the evidence of Ms Bath and Mr Baxter that the disclosure had not appeared to have been in any way orchestrated or contrived.
In response to a question as to when the date upon which Mr Martin says he saw Mr Meade in the Strathbogie Ranges was first stated in the material, Mr Meade said it was in Mr Martin’s handwritten statement.[26]
[26]Transcript of Proceedings, Meade v The Queen (Supreme Court of Victoria – Court of Appeal, Beach, Kennedy and Whelan JJA, 22 March 2021) 38-40.
Mr Meade was asked about issues of his own credit and in particular the evidence given at trial by Mr Nesbitt, and the conversation concerning Mr Reid. Mr Meade responded saying that Mr Nesbitt was a liar and that that would be established at his second trial. In relation to Mr Reid, Mr Meade said that what he had told his wife (IA) about Mr Reid was an attempt by him to ‘close the conversation down’ in response to what he considered to be the persistent raising of inappropriate matters by her.[27]
[27]Transcript of Proceedings, Meade v The Queen (Supreme Court of Victoria – Court of Appeal, Beach, Kennedy and Whelan JJA, 22 March 2021) 37-38.
Submissions on behalf of the respondent
In the respondent’s written case, reliance was placed upon the outcome of the informant’s inquiries. It was conceded that the evidence of Mr Martin was ‘fresh’. It was submitted that Mr Martin’s evidence was not reliable because it was not credible and did not provide a trustworthy basis for fact finding, having regard to the following matters:
(a) Mr Martin’s lack of credibility as a witness generally;
(b) the circumstances in which the purported disclosure was first made;
(c)Mr Martin’s state of health around July 2011 particularly in the context of the reason he gave for his presence in the Strathbogie Ranges;
(d)the factual error or lie told by Mr Martin in relation to the dog Trixie;
(e)the noticeable lack of detail in Mr Martin’s evidence in relation to the circumstances concerning his purported encounter with Mr Meade;
(f)the sheer improbability of his evidence, particularly having regard to the nature of the purported encounter in July 2011 and the time which had elapsed between that encounter and the disclosure in February 2018.
In developing those submissions, the written case relied upon Mr Martin’s extensive criminal history including the dishonesty offences. It relied upon the fact that Mr Martin and Mr Meade had been in the same unit for almost eight months together. It was submitted that they were clearly friendly as revealed by the terms of the letter Mr Meade wrote Mr Martin, and the statement which Mr Simpson obtained from Mr Martin’s mother. It was submitted that Mr Martin’s explanation that he was in the area in July 2011 ‘to look for garden rocks’ was not credible given his state of health at the time and the fact that Mr Martin’s residence was approximately 171 kilometres from the Strathbogie Ranges.
It was submitted that Mr Martin’s recollection of the date was related to the account of the death of the dog Trixie. It was submitted that subsequent police inquiries have revealed that this was at best a significant error and, more likely, a lie. According to Mr Martin’s daughter, he did not have a dog when she lived with him around the relevant period. According to his then neighbour, he had at one time had a dog called ‘Sally’, who that neighbour took possession of in 2010–2011 and was not killed in the Strathbogie Ranges. The Martin family had had a dog named Trixie, but that was approximately 20 years ago, and that dog had died of old age.
It was submitted that the very substance of Mr Martin’s evidence was highly improbable. He was purporting to recollect ‘a wholly unremarkable encounter’ with a complete stranger almost seven years earlier. It was submitted that this was ‘utterly implausible’.
Reference was made to the fact that due to Mr Martin’s death, if Mr Martin’s evidence were admissible, at a subsequent trial, the Crown would be prejudiced by its inability to cross-examine him.
It was submitted that Mr Martin’s evidence was not substantial or highly probative or such as to eliminate or substantially weaken the prosecution case because of its unreliability, and that it would not be in the interests of justice for the Court to grant leave to appeal.
In oral submissions, senior counsel for the respondent repeated submissions made in the written case. He submitted in addition that even if the second trial were eventually ordered, Mr Martin’s affidavit evidence was unlikely to be admissible.
In the course of submissions senior counsel for the respondent agreed that the only issue was the reliability of Mr Martin’s account. It was submitted the Court had to be positively satisfied that Mr Martin’s account was reliable. It was submitted that Mr Meade’s credibility was also relevant.
As to the circumstances in which the disclosure was made, the respondent submitted that the disclosure was ‘orchestrated and contrived’.[28] The circumstances were said to be ‘suggestive of contrivance’.[29] In addition to the matters relied upon in the written case, the respondent relied upon Ms Bath’s evidence that Mr Meade had asked her to document what had occurred.
[28]Transcript of Proceedings, Meade v The Queen (Supreme Court of Victoria – Court of Appeal, Beach, Kennedy and Whelan JJA, 22 March 2021) 41.
[29]Ibid 43.
Analysis
In this application, the onus is upon Mr Meade to satisfy the Court that Mr Martin’s evidence is reliable, meaning that it is credible and provides a trustworthy basis for fact-finding. It would not be sufficient to establish that it was arguably reliable. On the material before the Court, we are not satisfied that Mr Martin’s evidence is reliable. Indeed, we consider the evidence to be unreliable in that it is neither credible nor a trustworthy basis for fact-finding.
Our reasons are as follows.
First, we find Mr Martin’s account to be inherently improbable. The meeting with Mr Meade which he purported to describe on 26 February 2018 was of an event which had occurred approximately six years eight months earlier, on 1 July 2011. The event which he purported to describe was an incident which was inconsequential at the time, and of very short duration. Indeed, on Mr Martin and Mr Meade’s account, as far as Mr Martin knew the encounter remained inconsequential at the time of disclosure.
Second, Mr Martin’s credibility is affected by his long criminal history, which includes a number of offences of dishonesty.
Third, Mr Martin’s account of the death of a dog named Trixie is not credible. On the evidence before us, Mr Martin did not have a dog named Trixie in 2011. The death of the dog Trixie is very important because it is the fact by reference to which it is asserted that Mr Martin was credibly able to date his interaction with Mr Meade in the Strathbogie Ranges. Mr Meade had been in the Strathbogie Ranges on many occasions prior to 1 July 2011.
Fourth, there are other aspects of Mr Martin’s account which affect its reliability. His explanation for being in the Strathbogie Ranges, namely that he was looking for garden rocks, is difficult to accept. The location is 170 kilometres from his residence at the time. He says he left without the rocks. Mr Martin’s assertion that he had ‘no relationship’ with Mr Meade is not consistent with his mother’s statement; and is not consistent with the letter which Mr Meade wrote him, which does appear to us to have been a letter written by a friend. Mr Martin’s handwritten statement says he went to Mr Meade for help on 15 occasions between September 2017 and February 2018.
Fifth, the prison context to Mr Martin’s evidence is relevant. The observations of McHugh J in Pollitt v The Queen[30] are worth repeating:
Many years of experience in hearing prisoners give evidence for and against accused persons has alerted the judiciary to the unreliability of the evidence of serving prisoners.
[30]Pollitt v The Queen (1992) 174 CLR 558, 614.
Sixth, Mr Meade’s own credit is relevant. He is held in high regard by the Corrections officers who gave evidence. The evidence is that he has been an exemplary prisoner. But we cannot overlook the lies he told which were the subject of the evidence at his trial. As his counsel said at his trial, the evidence there had revealed him to be a person who ‘confabulates’ and ‘organises the facts to suit himself regardless of whether they are true or not’. His recorded statements to IA concerning Mr Reid which amounted, in our view, to a suggestion that an alibi witness be bribed, are obviously concerning in the context of this application. The explanation he gave us for that interchange (he was trying to ‘close the conversation down’) did not allay those obvious concerns.
Finally, notwithstanding the high regard in which Mr Meade is apparently held within the prison system, there are real grounds for concern that Mr Martin’s evidence has been fabricated. In combination with the other matters referred to above, there are the following matters:
(a) Mr Martin and Mr Meade were together in the Eucalypt Unit for a considerable period prior to the disclosure, and Mr Meade had assisted Mr Martin on many occasions during that period. It seems extraordinary that this disclosure should have occurred for the first time, in a discussion about a completely unrelated matter, in front of two Corrections officers. In the words of Ms Bath’s note, the disclosure came ‘out of the blue’.
(b) The first line of Ms Bath’s note records Mr Meade as approaching her after the disclosure at the console (‘Today Robert approached me...’). Her evidence before us was that Mr Meade requested her to document what had occurred. Mr Meade was apparently concerned from the outset to have a record by a Corrections’ officer of what had occurred.
(c) On Mr Meade’s own account of events, he had been in the Strathbogie Ranges on other occasions prior to 1 July 2011, including in the days immediately prior to 1 July 2011 and during his similar earlier trip between 8 and 10 June 2011. What Mr Martin had disclosed would only have been significant if it was possible to confidently fix the date of the encounter as being on 1 July. It seems that that did not happen until the handwritten statement was produced. When asked about this in the hearing, Mr Meade confirmed that he had been in the Strathbogie Ranges at least a dozen time, including earlier in June 2011, and he confirmed he did not know the date Mr Martin subsequently put on the meeting at the time of the disclosure. When asked why he had responded as he did at the initial disclosure when Mr Martin could have seen him in the Strathbogie Ranges on any one of the other times he had been there, he responded by saying that ‘[h]e could have, but I don’t recall seeing anyone but that time that I was there on that day’.[31] That explanation seems to us to be unconvincing, and it also seems to be inconsistent with what Mr Meade had said about the man in the yellow ute. In our opinion, Mr Meade’s reaction when the date was unknown, and the failure to enquire as to the date, are further matters which cause one to doubt the veracity of what occurred.
[31]Transcript of Proceedings, Meade v The Queen (Supreme Court of Victoria – Court of Appeal, Beach, Kennedy and Whelan JJA, 22 March 2021) 39-40
It is not necessary for us to make a finding that there was fabrication. For present purposes, it is sufficient to say that there are real grounds for concern in that regard.
The relevant issue is whether Mr Martin’s evidence is reliable or, more precisely, whether the applicant has discharged the burden of establishing that it is reliable. He has not discharged that burden. In our opinion, the evidence is not reliable.
Since Mr Martin swore his affidavit, he has died. In oral submissions, the respondent submitted that the affidavit would not be admissible in a retrial. We have proceeded on the assumption (without deciding) that it would be admissible.[32]
[32]Evidence Act 2008, s 65(8); see also commentary in Stephen Odgers, Uniform Evidence Law in Victoria (Thomson Reuters, 13th ed, 2018) 438.
The application under s 326A of the Act will be dismissed.
We will also order that the misconceived application under s 313 of the Act be dismissed.
Mr Meade has an application for bail, which is premised upon leave being granted under s 326A of the Act. In the circumstances, that application will also be dismissed.
- - -
3
5
0