Payne v The King
[2024] VSCA 273
•20 November 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0214 |
| REBECCA PAYNE | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | McLEISH, KAYE and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 October 2024 |
| DATE OF JUDGMENT: | 20 November 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 273 |
| JUDGMENT APPEALED FROM: | DPP v Payne (Supreme Court of Victoria, Incerti J, 15 March 2023) (Conviction); [2023] VSC 286 (Sentence) |
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CRIMINAL LAW – Appeal – Conviction – Witness gave evidence in VARE, s 198B hearing and special hearing – Differences in accounts – Witness alleged to have recanted VARE evidence during special hearing – Witness accepted evidence product of guesswork – Whether evidence relevant – Whether evidence so inherently incredible, fanciful or preposterous it could not be accepted by rational jury – Evidentiary issues within province of jury to resolve – Evidence relevant – Whether probative value of evidence outweighed by danger of unfair prejudice – Evidence prejudicial but not unfair – Leave to appeal refused.
CRIMINAL LAW – Appeal – Conviction – Prosecutor’s closing address – Criticism of prosecution witness – Speculation – Characterisation of expert evidence – Onus of proof – Personal opinion – Hypothetical scenario – Whether failure to act with scrupulous fairness – Whether issues giving rise to substantial miscarriage of justice – Leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Murder – Standard sentence offence – Applicant gave deceased biscuit containing crushed temazepam tablets – Body of deceased placed in freezer – Deceased subjected applicant to ongoing extreme and prolonged physical sexual and emotional abuse – Applicant’s situation ‘inescapable’ – Sentence 16 years’ imprisonment – Non-parole period 10 years – Whether sentence and non-parole period manifestly excessive – Provocation relevant to moral culpability – Tyne v Tasmania (2005) 15 Tas R 221, referred to – No cases available to consider current sentencing practice – Applicant’s moral culpability so attenuated that maximum and standard sentences not helpful yardsticks – Mercy – Unusual and remarkable case – Leave to appeal granted – Appeal allowed – Sentence 12 years’ imprisonment – Non-parole period 7 years.
Evidence Act 2008, ss 55, 56, 137.
IMM v The Queen (2016) 257 CLR 300, applied.
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| Counsel | |||
| Applicant: | Ms V Drago | ||
| Respondent: | Ms S Flynn KC with Mr ES Dober | ||
Solicitors | |||
| Applicant: | Balmer & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
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MCLEISH JA
KAYE JA
T FORREST JA:
Introduction
On 15 March 2023, the applicant, now aged 45 years, was convicted of murder following a 15 day trial by jury in the Supreme Court. She had pleaded guilty to a charge of manslaughter when arraigned before the jury.
Following a plea in mitigation on 22 May 2023, the applicant was sentenced on 1 June 2023 to 16 years’ imprisonment with a non-parole period of 10 years. She seeks leave to appeal against both conviction and sentence.[1]
[1]An extension of time is required: see [140] below.
Overview of facts and proceedings
In light of the relatively narrow proposed grounds of appeal in this matter, only a brief overview of the case against the applicant is required at this point.
The applicant and Noel Payne were married in 2006. She was born in 1979 and he was born in 1952. They had two children who were born in 2006 and 2007. The applicant had two children from a previous relationship. The first, Brock, took Noel Payne’s surname and spent a period of time living with him and the applicant. The second child was murdered in 2017.
In 2007, the family moved to a remote town in north western Victoria. On two occasions — in 2008 and 2012 — the applicant fled the family home because of violence inflicted by Noel Payne.
During the second separation, Noel Payne moved a woman who was 36 years younger than him into the family home. It is convenient to call her by the pseudonym ‘Alice’. Alice suffered from an intellectual disability and an acquired brain injury. She and Noel Payne began an intimate relationship.
In October 2012, the applicant returned to the family home. Alice moved into the bedroom next door and Noel Payne continued his relationship with her, as well as the relationship with the applicant. The women were each subjected to abuse by Noel Payne including physical assaults, rapes, other coercive sexual behaviour and emotional abuse.
On 29 August 2020, the applicant contacted a friend seeking a biscuit recipe. She made a batch of biscuits the next day.
On 1 September 2020, the applicant made a second batch of biscuits. She crushed a number of temazepam tablets — which had been prescribed to her for insomnia — and placed some into the icing of one of the biscuits. Late that day, the applicant gave Noel Payne the biscuit containing the temazepam.
After eating the biscuit, Noel Payne fell into unconsciousness. On her account, the applicant found him slumped at a computer and, upon being unable to detect a pulse, she concluded that he had died. In any event, during the night of 1 September 2020, the applicant wrapped him in a blanket and moved him outside where she placed his body into an unused freezer on the back veranda. She sealed the freezer with straps and moved it to the rear of the backyard using a trolley.
On 2 September 2020, the applicant went shopping with Alice and the children and visited friends. They made purchases including a number of new iPhones; the applicant had made phone calls to various stores the previous day, after making the biscuits, to compare iPhone prices.
On 4 September 2020, the applicant asked her neighbour whether she could leave a broken freezer containing rotten meat in her backyard, explaining that someone would come to collect it. Her neighbour agreed. The neighbour’s son became suspicious and opened the lid of the freezer, where he discovered Noel Payne’s body. Police were called and the applicant was arrested.
The applicant gave evidence at trial of the extreme levels of violence and abuse inflicted upon her at the hands of her husband. Much of that evidence was corroborated by other witnesses and exhibits tendered during the trial. The applicant gave evidence that when she administered the adulterated biscuit to Noel Payne, she intended only to sedate him so that she could enjoy a break from his abusive behaviour. She denied an intention to kill him or to cause him really serious injury. By its verdict, the jury rejected that evidence.
Grounds of appeal
The applicant seeks leave to appeal against conviction on the following grounds:
1. The evidence of [Alice] should not have been adduced in the applicant’s trial as the probative value of that evidence was not (i) relevant or (ii) the probative value of that evidence was outweighed by its unfair prejudice and the admission of that evidence occasioned a substantial miscarriage of justice.
2. A substantial miscarriage of justice occurred because of submissions made during the prosecutor’s closing address.
PARTICULARS
i. Criticism of a key prosecution witness when those matters were not put to that witness in cross-examination and where no application had been made that the witness was ‘unfavourable’ to the prosecution case;
ii. Provided speculative ‘reasons’ to account for the state of the evidence of a key prosecution witness;
iii. Overstated the import of the toxicologist’s findings as to the amount of temazepam that had been administered to the deceased;
iv. Made submissions on the issue of positional asphyxia not supported by the evidence;
v. Reserved the onus of proof on a number of occasions;
vi. Conveyed the personal opinion of the prosecutor in the issue of ‘family violence’;
vii. Placed before the jury a hypothetical example based on the self-defence provisions of the Crimes Act 1958 when those provisions were irrelevant to the issues in the trial.
The applicant seeks leave to appeal against sentence on the ground that the sentence imposed and non-parole period were manifestly excessive.
CONVICTION APPEAL
Ground 1
The first ground concerns the evidence of Alice. Her evidence played a significant role in the trial. The applicant submits that it should not have been admitted, for two reasons. First, the evidence is said not to have been relevant. Secondly, the probative value of the evidence is said to have been outweighed by the danger of unfair prejudice to the applicant. On either basis, the applicant submits that the admission of Alice’s evidence gave rise to a substantial miscarriage of justice.
Alice’s evidence was derived from questioning on three occasions over four days. On 5 September 2020, a VARE was conducted with Alice at Mildura. On 4 May 2021, she was cross-examined at a s 198B hearing, and on 13 and 14 February 2023, she was cross-examined further at a special hearing.
Objection was taken to the admissibility of the VARE conducted on 5 September 2020 pursuant to ss 56 and 137 of the Evidence Act 2008. The judge ruled that the VARE was admissible.
Evidence of Alice in her VARE on 5 September 2020
The VARE was conducted with the assistance of an independent person from the Office of the Public Advocate, in light of Alice’s mental impairment. It took place a few days after the events of the night of 1 September 2020. In the VARE, Alice initially indicated that the events of that night were ordinary, involving showering, settling her dog and packing away shopping. She recalled that Noel Payne was not ‘feeling the best’ that night and that he had brushed his teeth before going to bed. She said that she did not see anything after that.
Further into the VARE, Alice was asked ‘what do you understand about how Noel died?’. She responded:
Hoe [sic] Noel died? I don’t – I don’t really know. I don’t know how Noel – I don’t know how Noel died. And she – unless she put something in – in – in – in her – in the food or something, I don’t know. I wasn’t – I was doing something. Because she makes biscuits - - -
Alice then said:
I’m gunna be honest with you … She might’ve put something in his biscuits or something and, yeah, like, probably, like, pills or something, I don’t know. I don’t know what was in – in the biscuits because she – she put – put it on the side.
The interview was immediately stopped at that point, and Alice was cautioned before questioning resumed.
Alice then went on to say that the applicant had made biscuits and put one on the side ‘for him’. The applicant had crushed some sleeping tablets. She made Noel Payne a Milo every night and she had offered him a biscuit, which contained the crushed drugs. After eating the biscuit, Noel Payne was on the computer, looking at cars. He was slurring his speech and had trouble getting up. The applicant put him to bed.
Later that night, Alice went to the toilet and the applicant gave her a ‘two thumbs up’ sign, that Alice understood to mean ‘good, I got rid of him’. After that, the applicant ‘just dragged him, put him down on the floor in his room’; then she dragged him into the lounge room and wrapped him in a light blue winter blanket. Alice said that the applicant ‘taped the ends up’ with grey duct tape.
Alice said that the applicant then dragged the body outside and put it in the freezer, before putting the freezer near the back shed.
Alice said that she saw what the applicant did with the pills, but didn’t know the applicant was going to do what she did. She said ‘she was going to ask me to do it and I said no, and I didn’t want to do it in case I got myself in trouble … and she went and done it herself’. She confirmed that this was something the two women had spoken about beforehand.
Alice said she ‘felt awful’ when the applicant gave her the thumbs up sign. She saw the applicant drag Noel Payne from his bed onto the floor. She said she ‘had to go and see what’s going on’. She saw the applicant wrapping the body in a blanket. The applicant dragged the body outside by herself and came back and told Alice that she had ‘put him in the freezer’. She said that the applicant panicked in case he ‘hits her or something’.
Alice also described how, after putting the body in the freezer, the applicant ‘went and got straps’ in case he tried ‘to get up’. She described a red strap.
Alice also gave a detailed description of what she recalled seeing Noel Payne wearing that night, including boxer shorts with kisses on them, grey socks, and a t-shirt with a logo across the chest.
As set out below, in later questioning, Alice’s account was very different.
Alice’s evidence at the s 198B hearing on 4 May 2021
At a s 198B hearing on 4 May 2021, Alice gave evidence that she did not actually see some of the events she described in her VARE.
On this occasion, she gave evidence that she got up in the night to take her dog out and to go to the toilet and then she went straight back to bed and to sleep. She said that no one was up at that time as they were all in bed. She recalled that the applicant took the freezer to the neighbour’s house using a furniture trolley and that Noel Payne was in the freezer, but she did not see him being put there. She said that the applicant dragged him out the back door but said that she did not see that happen. She said she had gone to bed early and did not see Noel Payne go to bed that night.
Alice said that she knew that Noel Payne had died because the applicant made biscuits, and she was there when the applicant made them. She explained that the applicant made a batch of biscuits and put one aside for him. She initially said that she witnessed this. Later, she said that she was in her room when this occurred. She said she did not see anyone eat any biscuits.
Alice’s evidence at the special hearing on 13 and 14 February 2023
At the special hearing, Alice said that the last time she saw Noel Payne alive was when he went to bed. She said, as she had in the s 198B hearing, that she did not see anything during that night. She did not see the applicant give her the ‘thumbs up’ gesture. She was not there when Noel Payne was put in the freezer, she did not see him being dragged through the house or wrapped in a blanket, she did not see the applicant make the biscuits or put one aside, and she did not see Noel Payne eat the biscuit because she was in her room.
Alice was taken to some of her answers in her VARE and was asked whether she had been guessing about what happened to Noel Payne when she said ‘unless she put something in – in – in – in her – in the food or something, I don’t know. I wasn’t – I was doing something. Because she makes biscuits’. She responded that she was trying not to guess but that, while she did not see it happen, she thought the applicant did put something in his food. She then stated that she did not see the applicant crush some pills, nor put a biscuit to the side, nor did she see the applicant ask Noel Payne whether he would like a biscuit or a Milo, and she did not see the applicant give him the biscuit.
Alice agreed that she was guessing her responses in her VARE and that she was doing so to be helpful to police. She continued to retract the statements she gave in her VARE. In re-examination, however, Alice said that she did not make things up in her VARE.
Ruling as to admissibility of VARE
Defence counsel objected to the admissibility of Alice’s VARE, in particular, the evidence of the acts allegedly done by the applicant. It was submitted that evidence that is a product of guesswork is not admissible pursuant to s 56 of the Evidence Act 2008. Alternatively, it was said that the VARE should be excluded pursuant to s 137 of the Evidence Act because the probative value of the evidence was outweighed by the danger of unfair prejudice to the applicant.
The prosecutor submitted that Alice’s VARE evidence was admissible. The fact that she subsequently recanted much of that evidence did not render it inadmissible. It was submitted that there were plausible reasons why Alice had agreed to the suggestion that she had been guessing, and the question of reliability of the VARE evidence was properly to be resolved by the jury.
The prosecutor submitted there was no unfairness in admitting the evidence. Alice was cross-examined and almost all of the facts she asserted in the VARE were ultimately accepted or not contested by the applicant.
The judge ruled as follows:
Having considered [Alice’s] evidence in relation to these matters in the special hearing it is open to conclude that [Alice] adopted the suggestion from the defence that she was guessing about certain things in her VARE. … as the transcript excerpt I have just read out highlights [Alice’s] use of words such as ‘I reckon’, might well suggest that she was not sure or even guessing. As such, it was appropriate for defence counsel to explore the issue.
Whether [Alice] was guessing at the special hearing is by no means certain. It may well be that [she] agreed she was guessing for many plausible reasons, and not necessarily because she was deliberately lying. It was abundantly clear that by the time this series of questions was put to [Alice] she was extremely anxious to finish. [Alice], on numerous occasions, agreed with propositions from both counsel and, when further questioned, in fact gave evidence that was different, or even contradictory to her original answers. What is important to note is at the beginning and at the end of her evidence at the special hearing [Alice] said that her VARE was truthful and that she was doing her best to tell the police what happened.
….
On the three occasions [Alice] has given evidence, the VARE, the s 198B, and the special hearing, [she] was supported each time. There is no evidence the VARE was not conducted appropriately and [it] took into account [Alice’s] special needs. Witnesses often change their evidence over time and sometimes recant their previous representations. In such a case the previous representations remain admissible.
This is the purpose of s 66 [scil 56] and as noted by the prosecution where applicable s 38 of the Evidence Act. This is the very function that juries are expected to conduct to evaluate the credibility and reliability of the previous representations taking into account the later representation. The jury will be given instructions on how to deal with prior inconsistent statements and the assessment of witnesses.
I do not consider the jury will have to speculate about [Alice’s] evidence. I consider [Alice’s] VARE to be relevant. The fact that she now gives a different representation to an earlier one does not make it less probative if accepted by a jury. A jury will be required to assess [Alice’s] evidence and to decide if what she said at the VARE is, on balance, correct.
Alternatively, the jury may conclude [Alice’s] evidence is neither credible nor reliable. It is a matter for the jury.
I do not consider the changes in [Alice’s] evidence are likely to cause significant confusion for a jury. There is nothing complicated in the versions of her evidence about these key issues. [Alice] is not now giving a different version of the events but simply saying she does not remember or that she is guessing. I do not consider [Alice’s] evidence in totality is inherently preposterous such that it could not be understood and determined by any reasonable jury.
Finally, I do not consider there is any unfairness to the accused in admitting this evidence. [Alice] has been cross-examined, the evidence is not unsafe, and as noted, the evidence is to a large extent confirmed by other evidence or in part admitted.
I do not consider that there is any prejudice to the accused in the current circumstances. I will allow [Alice’s] VARE evidence to be admitted into evidence.
Submissions — ground 1
The applicant submitted that Alice gave three different accounts of the night of 1 September 2020. First, she told investigators that she did not know what had happened to Noel Payne. Secondly, she said that she had heard or seen Noel Payne brush his teeth before going to bed after saying that he did not ‘feel the best’. Thirdly, Alice referred to the applicant making biscuits, crushing sleeping pills, administering the biscuits to Noel Payne with accompanying words, giving Alice the ‘thumbs up’ gesture, wrapping Noel Payne (or his body) in a blanket, dragging the body through the house, and placing it in a chest freezer secured by straps.
At the s 198B hearing, Alice gave evidence that she had not in fact seen what she had described in her VARE. The applicant submitted that, at the special hearing, Alice was taken to all key parts of her narrative and conceded in detail that she did not actually observe that which she had originally claimed. It was submitted that, in effect, Alice made a full retraction of the core details of her narrative and provided an explanation that she was trying to be helpful by ‘guessing’. In effect, it was submitted, she reverted to her original position in the VARE that she did not know what happened to Noel Payne.
The applicant submitted that this was a case in which the evidence was so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury.[2] It was said that the evidence was in the unusual and exceptional category of having no relevance pursuant to the definition of that concept in s 55 of the Evidence Act. It was submitted that the jury could not rationally decide between the differing versions of events put forward by Alice, and the evidence could not have rationally affected the probability of any issue in the case.
[2]IMM v The Queen (2016) 257 CLR 300, 312 [39] (French CJ, Kiefel, Bell and Keane JJ) (‘IMM’).
Alternatively, given that Alice had accepted that the VARE evidence was the product of guesswork, its probative value did not outweigh the danger of unfair prejudice to the applicant. It was said to be unclear how the jury could be properly directed about the assessment of the evidence in the circumstances.
In response, the respondent submitted that the impugned evidence went directly to the immediate circumstances and conduct of the applicant concerning the death of the deceased. It was said to be plainly capable of rationally affecting an assessment of the probability of the existence of facts in issue concerning whether the applicant caused the deceased’s death and, if so, her state of mind when she did so.
The respondent submitted that the question whether the earlier representations were speculation was a matter contested at trial. These were matters for the jury to resolve. It was far from certain that Alice was in fact guessing. Most of her VARE evidence was supported by other evidence. In the circumstances, it could not be characterised as incredible, fanciful or preposterous. Moreover, it would be unusual for a previous representation to become inadmissible merely because the witness retracted it.
In relation to s 137 of the Evidence Act, the respondent submitted that questions of unreliability of the impugned evidence were to be resolved by the jury rather than the trial judge when assessing probative value at the admissibility stage. It was submitted that the impugned evidence was highly probative in the context of the issues at trial, going to the heart of the prosecution case.
The respondent submitted that the High Court’s decision in IMM, in contemplating a case where evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury, was not stating an exception to the position that the trial judge must assume the credibility and reliability of the impugned evidence. The statement instead reflected the fact that some evidence, even taken at its highest, lacks probative value. Here, the applicant had not argued that the evidence, taken at its highest, was inherently weak. The applicant submitted instead that Alice was guessing — a question appropriately left for the jury to determine.[3]
[3]The respondent submitted that the questions of credibility and reliability in this case, to be assumed for the purposes of s 137, were comparable to those that arose in Hague v The Queen [2019] VSCA 218.
In addition, the respondent submitted that the applicant had not identified unfair prejudice which would arise if the evidence were admitted. It was submitted that even evidence of low probative value is not excluded under s 137 unless its value is outweighed by the danger of unfair prejudice.[4] The respondent submitted that, if the jury accepted Alice’s VARE evidence, it was highly damaging to the defence case, but not unfairly so. That was especially the case where the impugned evidence was largely confirmed by other evidence. The respondent contended that it was a matter for the jury to consider whether it was possible to reconcile the evidence given by Alice in the special hearing with the answers she had given to police in her VARE.
[4]R v Dickman (2017) 261 CLR 601, 615 [44] (Kiefel CJ, Bell, Keane, Nettle and Edelman JJ).
Consideration — ground 1
Section 56 of the Evidence Act provides that, except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceeding.
Section 55 provides that the evidence that is ‘relevant’ is ‘evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding’.
The High Court explained the operation of these provisions in IMM v The Queen, as follows:
The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. This follows from the words ‘if it were accepted’, which are expressed to qualify the assessment of the relevance of the evidence. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether the evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a fact in issue would be nil and it would not meet the criterion of relevance.
Because evidence which is relevant has the capability to affect the assessment of the probability of the existence of a fact in issue, it is ‘probative’. Therefore, evidence which is relevant according to s 55 and admissible under s 56 is, by definition, ‘probative’. But neither s 55 nor s 56 requires that evidence be probative to a particular degree for it to be admissible. Evidence that is of only some, even slight, probative value will be prima facie admissible, just as it is at common law.[5]
[5](2016) 257 CLR 300, 312 [39]–[40] (French CJ, Kiefel, Bell and Keane JJ).
These observations make it clear that the task for the judge in the present case was to decide whether Alice’s evidence had the capability, rationally, to affect findings of fact (namely, whether the applicant killed the deceased and, if so, what was her state of mind when she did so). Some evidence, the Court recognises, could not be accepted by a rational jury. The example given is of evidence that is inherently incredible, fanciful or preposterous.
Alice gave evidence during her VARE of having seen things intimately connected to facts in issue in the case, including (on her account) the applicant preparing the poisoned biscuit and setting it aside before giving it to the deceased, the ensuing collapse of the deceased, and the applicant wrapping him in a blanket and securing it with duct tape, before dragging the bundle through the house and placing it in a freezer, secured with straps. She said that she and the applicant had discussed giving the deceased a poisoned biscuit but Alice had declined to be involved. She described the applicant giving her a ‘thumbs up’ before dragging the deceased onto the floor.
The fact that Alice later attributed some, perhaps all, of this evidence to guesswork does not rob it of its ability rationally to affect the probability of the existence of the identified facts in issue. It might affect the decision whether to accept the truth of the evidence, or the weight to be given to it, but IMM makes it clear that this is the province of the jury, not the judge determining admissibility. In that regard, it is significant that in the special hearing Alice also confirmed the truth of what she said in the VARE. It is also particularly significant that much of Alice’s evidence was corroborated either by the evidence of other witnesses or by the physical evidence (such as the use, and colour, of the blanket and the duct tape used to hide the body) and the discovery of the body in the freezer. This was not the limiting case referred to in IMM, where the evidence could not rationally have been accepted by the jury.
Nor does s 137 assist the applicant. That section provides that, in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.
Here, for the reasons already identified by reference to IMM, the evidence had probative value. As the Court in IMM observed, the definition of ‘probative value’ in the dictionary to the Evidence Act mirrors the definition of relevant evidence: it means ‘the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue’.[6] The applicant’s submission that it had no such value must be rejected for the reasons already stated.
[6]Ibid 313 [42].
Moreover, the applicant has pointed to no ‘unfair prejudice’. There is real prejudice, of course, in admitting such potentially damaging evidence in the applicant’s trial. But that is not ‘unfair’ prejudice. It is the prejudice that comes with probative evidence advanced as part of the case against an accused.
Finally, the applicant made reference to the fact that Alice was not able to be cross-examined in the ordinary way, by virtue of her mental impairment. It is not clear, however, that the manner of cross-examination of Alice prejudiced the applicant (unfairly or otherwise). It was in cross-examination that Alice gave answers favourable to the applicant. The potential for prejudice to the applicant arose from Alice’s evidence-in-chief. In any event, the jury were directed by the judge as to that matter and must be taken to have understood the constraints under which this placed the applicant.[7]
[7]Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J), 426 [32] (McHugh J); Dupas v The Queen 241 CLR 237, 247–9 [26]–[29] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
The judge’s directions to the jury both explained the manner in which Alice gave evidence and the way the jury should approach her evidence. The judge said:
I now want to direct you about [Alice’s] evidence. ... [Alice] has a cognitive impairment and specifically she has got a diagnosis of intellectual disability and acquired brain injury. Because [Alice] has a cognitive impairment, the law allows an intermediary to be appointed to help the parties question [Alice]. Catherine Collins is that intermediary and is an independent person who is here to assist the court by providing advice on how [Alice] should be questioned.
As a person with a cognitive impairment, [Alice’s] language skills and processing skills are not as developed as those of many other witnesses. Catherine Collins’ role was to ensure [Alice] was questioned using language that she could understand. Giving evidence, as you have probably already seen, in court can be a stressful process especially for a person with a cognitive impairment. At an earlier hearing, counsel and I discussed how [Alice] would be asked questions. This was to ensure the questions were formulated in such a way that [Alice] could understand what was being asked of her. You would appreciate that as a matter of fairness, these adjustments were necessary to ensure that [Alice] was able to understand the questions and that [Alice] was able to answer those questions without being overwhelmed by complex language or by other stressors or pressures that might affect her evidence.
It is also important to understand that ordinarily, cross-examination is the method that lawyers use to test evidence. However, in the case of a person with a cognitive impairment, cross-examination cannot proceed in the same robust manner that it might for an adult witness without a cognitive impairment. The form of questions, the tone of questions and the contents of the questions must be adapted to accommodate the understanding of the witness. The law requires this to be done.
You may have noticed [Alice] was questioned in a different way from other witnesses. Generally, the questions were simpler and more direct. As I said, [Alice’s] language skills and processing skills are not as developed as many other witnesses and therefore counsel had to adapt their questions to match [Alice’s] language and processing ability. Otherwise, there was a risk that [Alice] would have become tired, stressed or confused and might have given answers that she did not mean to give. This would not have been fair to [Alice] and would have made your task of assessing the evidence even more difficult than it should be.
When you are assessing [Alice’s] evidence, you are also to have regard to the fact that her evidence in the special hearing is said to conflict with the earlier versions given in her VARE on 5 September 2020. In legal terms, the earlier versions of events is said to be a prior inconsistent statement.
After addressing the jury about the permitted uses of prior inconsistent statements, and the parties’ respective submissions, the judge continued:
I must now warn you about the need for caution when considering [Alice’s] evidence. I must give you this warning because [Alice] has an intellectual disability and an acquired brain injury which impacted the way she gave her evidence.
My warning to you is as follows: it is the experience of the law that the evidence of a witness who has a cognitive impairment, such as [Alice’s], may be unreliable. This unreliability can arise due to a number of factors including [Alice’s] language skills, processing skills, understanding of the questions put to her, the impact of her cognitive impairments on her perceptions and recollections, and her tendency to hesitate and second-guess herself when challenged or unsure.
The law says that every jury must take this potential unreliability into account when considering the evidence of a witness such as [Alice]. You must take it into account in determining whether you accept [Alice’s] evidence at all and if you do accept it, in whole or in part, in deciding what weight to give to that evidence. Please keep this in mind when considering [Alice’s] evidence generally.
No criticism was, or could be, made of these directions. The jury was well-equipped to evaluate the evidence Alice gave and the parties’ respective submissions about that evidence.
For these reasons, leave to appeal on the first proposed ground should be refused.
Ground 2
By ground 2, the applicant contends that a substantial miscarriage of justice occurred because of submissions made by the prosecutor during his closing address. Seven specific criticisms are made, which are said to have that cumulative effect.
Criticism of key prosecution witness
The applicant submitted that the prosecutor had criticised Alice, who was a central prosecution witness, without having made an application to cross-examine her as an unfavourable witness under s 38 of the Evidence Act. It was submitted that it was inevitable that such an application would have been successful, allowing the prosecutor to confront the witness with the reasons for her change of position. The applicant submitted that the prosecutor had impermissibly suggested that Alice was implicated in the death of the deceased, without having put that allegation to her by way of a s 38 application.[8] In so doing, the prosecutor had improperly widened the Crown case.
[8]Browne v Dunn (1893) 6 R 67.
The respondent submitted that the prosecutor did not criticise the evidence of Alice. He invited the jury to adopt her evidence-in-chief constituted by her VARE. It was necessary, the respondent submitted, for the prosecutor to address the inconsistencies in Alice’s evidence. His treatment of the matter reflected the reality of the differences in her accounts, rather than criticising the witness. The prosecutor was doing no more than seeking to persuade the jury as to how they might assess the evidence of a witness.
The respondent pointed out that, at the special hearing, Alice commenced by saying that the evidence in her VARE was true and correct. During re-examination, she said that she was trying her best to tell the truth during her VARE and that she had told the police officer things she knew had happened.
The prosecutor submitted to the jury that Alice’s evidence in her VARE was reliable and should be preferred to the answers she gave in cross-examination. It was submitted that the idea that she had guessed her VARE evidence was simply a suggestion made by defence counsel in cross-examination with which the witness had agreed. However, it was improbable that she had accurately guessed the very specific information that she provided in the VARE.
The respondent submitted that these arguments made by the prosecutor did not cause unfairness to the applicant and there was no requirement for a Browne v Dunn direction or for the prosecutor to have made a s 38 application. It was submitted that the judge directed the jury in conventional terms concerning their assessment of witnesses and provided careful and detailed directions about their task in assessing Alice’s evidence in particular, including by giving the jury an unreliable witness warning.
The respondent rejected the applicant’s argument that the prosecutor had alleged that Alice was implicated in the offending. The prosecutor had only said that Alice might have been worried that she would get herself into trouble as an explanation for why she agreed she was guessing. That submission related to the state of mind of the witness, not to any suggestion that the applicant and Alice were jointly involved in the murder.
The submissions of the respondent should be accepted. Since the witness had given conflicting evidence, it was necessary for the prosecutor to explain to the jury how they should approach that circumstance. The prosecutor was not urging the jury to reject Alice’s evidence in its entirety, or without the jury having heard from her about the version of events which the prosecutor urged the jury to accept. Those situations may demand an application to cross-examine a prosecution witness under s 38, so that the version may be put to the witness and his or her evidence in relation to it be presented before the jury.[9] Here, the evidence of the witness supporting the prosecution case was already before the jury and all that was required was for the prosecutor to address the discrepancy in her evidence in closing submissions.
[9]Gant v The Queen [2017] VSCA 104 [106], [113] (Weinberg, Priest and McLeish JJA); Shams v The King [2024] VSCA 260 [115] (McLeish, Orr and Kaye JJA).
The prosecutor did not invite the jury to find that Alice was implicated in the offending. His submission was confined to the argument that she might have agreed that she was guessing in her VARE evidence, because she feared that she might get into trouble of some sort. That was a submission about her state of mind only. There was no enlargement of the Crown case. This matter is mentioned again in the next section of these reasons.
Speculative reasons
Next, the applicant submitted that the prosecutor provided reasons to account for the state of the evidence of Alice and why she was ‘guessing’. The applicant submitted that there was no evidentiary basis to make such submissions, and that they were speculative because they had never been put to Alice.
The prosecutor suggested that ‘there are good reasons why, I’d suggest, [Alice has] agreed that she was guessing and some or all of these could be true’. The reasons advanced by the prosecutor were as follows:
(i)she [Alice] might have thought it would get her out of the witness box earlier;
(ii)her memory of the events might have been pretty poor;
(iii)‘she [Alice] might have been worried she would get herself into trouble’;
(iv)‘she might have hated implicating Rebecca Payne’; and
(v)‘there could be other reasons’;
(vi)‘so there’s a whole bunch of reasons and maybe they’re all working together, maybe they’re all working in combination, but you can see a whole bunch of reasons why she’s gone along with the suggestion she’s guessing’; and
(vii)finally, the idea of ‘guessing’ came merely from the defence who ‘put it to her [Alice] in a way that’s made it very easy for her to go along with … when you ask those sort of questions of a witness like [Alice] you do not get reliable answers, you get — well, you get nonsense’.
The respondent submitted that the prosecutor was entitled to make submissions to the jury about how they should resolve the inconsistencies in Alice’s evidence. The respondent contended that this was a variation on the first objection, advanced above.
The applicant’s submission is without substance. The prosecutor suggested possible bases for relying on Alice’s VARE answers in preference to her answers given under cross-examination, and those possible bases had proper foundations in the evidence. The VARE was conducted within days of Noel Payne’s death, and it was obvious that Alice’s memory of events might have been better at that time. Her intellectual impairment, and the manner in which she gave evidence, were matters before the jury upon which the prosecutor could legitimately address. The same is true of the possibility that she was keen to finish her evidence. The special hearing extended over two days and at the end of the first day she said it was ‘hard’ after being told that counsel was ‘hopeful’ that he would finish the next day. She said in terms that she had been worried at the time of the offending about getting into trouble herself.[10] Her reluctance to implicate the applicant was evident in the special hearing; she said she had nowhere to live as a result of the applicant’s arrest.
Toxicologist’s findings
[10]See [26] above.
Thirdly, the applicant submitted that the prosecutor overstated the import of the toxicologist’s evidence as to the amount of temazepam that had been administered to the deceased by the applicant.
The toxicologist, Associate Professor Dimitri Gerostamoulos, gave evidence of his opinion that there were at least six and a half or seven temazepam tablets in the stomach contents of the deceased. There was further temazepam in the deceased’s blood stream and in his urine. The witness said:
it is likely to be more than six and a half or seven tablets. I can’t be specific about how much more that might be. It may be a few tablets, it may be five tablets, but it’s at least – at least seven – six and a half to seven tablets plus some more.
Associate Professor Gerostamoulos said it was not scientifically possible to determine, on the basis of the information available, how many tablets were administered. Under cross-examination, he said it was unlikely that a total of 50 tablets had been administered, and that 25 was also unlikely. It was difficult to say, beyond six and a half or seven tablets. In re-examination, he said that the number of tablets administered to the deceased had to be more than six and a half or seven, but he didn’t know ‘whether that’s five or whether that’s 10 tablets’ but it would ‘have to be a few more tablets’.
The prosecutor said in his closing address:
He’s had a large dose of temazepam, I’ll get to that issue of how many she gave him but it’s a lot. Well, you know how much it is. There’s the remnants of seven pills in his stomach and there’s more in his bloodstream so, you know, Dr Gerostamoulos didn’t want to give a figure but it’s comfortably more than 10 I’d suggest or should I say at least 10; 15. It’s a lot of pills.
The respondent submitted that, in circumstances where there was uncertainty as to how many tablets were administered, the prosecutor had appropriately said that Associate Professor Gerostamoulos ‘didn’t want to give a figure’ as to the number of tablets consumed by the deceased. The prosecutor told the jury to focus on what the expert witness had said and to base their conclusions on his evidence. He then took the jury through the evidence. The respondent submitted that there was a sufficient evidential basis for the prosecutor to submit to the jury that 10 to 15 tablets had been consumed by the deceased. The prosecutor made clear that it was his own suggestion that the figure was comfortably at least 10, and probably more.
The respondent noted that defence counsel made detailed submissions about the toxicology evidence and the trial judge gave comprehensive directions to the jury concerning the arguments of both parties.
In the above submissions, the prosecutor was doing no more than offering a possible quantification of the dosage of temazepam implied by the expert evidence. The prosecutor made it clear that Associate Professor Gerostamoulos himself had not wanted to give a figure, but it is significant that Associate Professor Gerostamoulos had himself suggested around five to 10 extra tablets, which would produce a total quantity of 12 to 17 tablets. In the circumstances, a number around 10 to 15 was consistent with the expert evidence, and it was not inappropriate for the prosecutor to have offered the jury his own calculation on that basis, while making clear that the expert had not endorsed a figure.
Positional asphyxia
Next, the prosecutor made statements about the evidence of Dr Paul Bedford, a forensic pathologist, and the possibility of positional asphyxia having caused the death of the deceased. The applicant submitted that this included reference to scenarios that had not been considered by Dr Bedford, and the prosecutor’s submission therefore did not possess an evidentiary basis.
The respondent submitted that the prosecutor in his closing address had compared the medical evidence to the scenario presented by the applicant in her evidence, namely that she found the deceased unresponsive and face down at his computer. The respondent submitted that the prosecutor had an evidential basis to connect the positional asphyxia hypothesis to the drugs given to the deceased. In those circumstances, the prosecutor was doing no more than inviting the jury to apply its common sense in deciding whether to accept the applicant’s account of the deceased having died at his computer.
Associate Professor Gerostamoulos opined that a severe overdose of temazepam could lead to respiratory depression (meaning a slowing of breathing), coma and death. He did not go further into the question of positional asphyxia.
Doctor Bedford gave evidence about the autopsy upon the body of the deceased. He was unable to ascertain the cause of death because it was unclear whether the deceased had died purely as a result of the temazepam he had ingested or whether the temazepam had brought him to an unconscious state and he had then become asphyxiated and died within the low oxygen environment of the freezer. When he was cross-examined, Dr Bedford also agreed that there was a reasonable possibility that the deceased had suffered positional asphyxia, meaning that the person’s body is in an unusual position that is detrimental to being able to breathe. He gave the examples of the neck being severely bent forward or the body being wedged in a position where the chest could not move in normal respiratory movement. He agreed that sitting at a table or desk and falling forward with the head on the desk or table could have that result and lead to death. Such a result could follow from the intake of temazepam identified in this case.
In re-examination, Dr Bedford was taken back to the desk scenario. He said that if ‘the neck goes into hard flexion and their face is straight down on the table and their airways, their nose and their mouth are obstructed, that would not be a good position to be in’. He said that ‘the degree of compromise, if the nose and mouth were totally obstructed, that would be another factor in them not being able to breathe, or if the neck is so far forward that their upper airways are, in a similar way, blocked, then there’s no oxygen supply’. He said breathing problems would be caused by ‘a combination of factors’ and ‘usually not just the neck’.
In his closing address, the prosecutor said that, while there had been evidence from the applicant that the deceased was slumped forward face down on his computer, the evidence did not provide any real basis for knowing if Noel Payne could have died from positional asphyxia in that situation. The prosecutor said:
We’ve got evidence that he was slumped forward, face down on the laptop. Would that have blocked his mouth and nose? Don’t know. I mean, a keyboard’s hard, isn’t it? It’s not soft, it doesn’t wrap around. A face is curved. If you put a curved surface on a flat surface, it doesn’t obstruct the whole curved surface, does it? Is his neck obstructed? Don’t know. If you slump forward from the waist then your neck’s – your head’s still in line with your body, isn’t it? So your neck’s not in any unusual position. But this is all speculative because we don’t really know, if you’re prepared to give this any credence, what body position Noel was in.
The gist of the prosecutor’s submission was that it was a matter of speculation whether Noel Payne had died as a result of positional asphyxia while sitting at his computer. That was an accurate summation of the evidence. There was no detailed evidence of the position in which the applicant had found him slumped in that location, in particular the position of his nose and mouth. Dr Bedford therefore could not be asked about the likelihood of positional asphyxia in the present case, and gave evidence only in generalities. He had said that a significant factor was whether the nose and mouth were blocked. The prosecutor was merely stating the obvious when he said, in effect, that it was not apparent on the evidence how that could have happened.
Reversal of onus of proof
Fifthly, the applicant submitted that the prosecutor reversed the onus of proof in making submissions about the evidence given by the applicant. In particular, the prosecutor told the jury that the applicant was ‘asking you to accept’ her account, despite the applicant having no burden of proof. He said that the applicant’s failure to try to resuscitate the deceased, or to call triple zero, was ‘completely inconsistent with the story she’s trying to spin to you about his death being accidental’. The prosecutor also suggested in closing that, if the death of the deceased had been accidental, the applicant would have said so at the time.
The respondent submitted that, in giving evidence at the trial, the applicant invited the jury to accept the truth of that evidence, and the prosecutor was entitled to challenge that position. In addition, the prosecutor had reminded the jury at the end of his closing address that the prosecution retains the burden of proof and that there was no onus on the applicant to prove her innocence or that her evidence was truthful.
The respondent’s submissions should be accepted. The prosecutor was entitled, if not obliged, to seek to persuade the jury not to accept the applicant’s evidence generally, and in particular her claim that the death of Noel Payne was accidental, in particular. That did not involve reversing the onus of proof. As the respondent pointed out, the prosecutor was careful to remind the jury that there was no onus on the applicant. He said:
I’ve spent a bit of time criticising Rebecca’s evidence. I mean I have to because I have to persuade you that it’s not true and, remember, the burden of proof is on me which means that the prosecution has to prove to you that Rebecca Payne is guilty. … I have to prove that what she said was not true.
Moreover, the judge gave detailed directions about the onus and standard of proof and said, specifically concerning the evidence of the applicant:
[I]f you do not think that Rebecca told the truth in her evidence, but are unsure where the truth lies, you must find her not guilty. In fact, even if you are convinced that Rebecca did not tell the truth, it is not the case that you must convict her. In such circumstances you should put Rebecca’s evidence to one side and ask yourself whether the prosecution proved Rebecca’s guilt beyond reasonable doubt based on the evidence you accept.
In the circumstances, there was no reversal of the onus of proof as alleged by the applicant.
Personal opinion of the prosecutor
The applicant next submitted that the prosecutor conveyed his personal opinions to the jury on the issue of family violence and whether there was sufficient evidence of it in the case. The applicant submitted that the prosecutor’s personal opinions were entirely irrelevant to the jury’s task. It was submitted that the way in which the prosecutor approached the question of domestic violence, in particular, unfairly diminished its significance.
The respondent submitted that it was the applicant who introduced the issue of family violence into the trial, and the prosecutor was entitled to respond to that evidence. The respondent submitted that it was not improper for the prosecutor to acknowledge the likely family violence upon the applicant, Alice and Brock Payne. Although it might have been better for the prosecutor to have stated that it was the prosecution’s position rather than his own, he was only indicating that the prosecution accepted that there had been some level of family violence perpetrated by the deceased.
The respondent submitted that it was telling that no objection was taken by experienced defence counsel on this issue following the prosecutor’s address. It was submitted that no prejudice could flow to the applicant from the comments made by the prosecutor and that they did not amount or contribute to any miscarriage of justice.
The applicant’s written submissions in this context rested on a series of passages in which the prosecutor used language suggesting that he was offering his personal opinions to the jury. On examination, however, the statements are nothing more than submissions phrased in the language of opinion. So, the prosecutor said ‘I’d say’ that Noel Payne mistreated the applicant, and ‘I reckon’ he mistreated Brock Payne as well. Similarly, he said ‘I’m sure’ the applicant was a victim of domestic violence. The jury would plainly have understood these statements as submissions, rather than assertions of some expertise on the part of the prosecutor. As the respondent pointed out, it is also telling that no objection was taken at trial to this language. There is no substance in the objection to the prosecutor articulating his submissions in this way.
In oral argument, the applicant concentrated on the following passage in the closing address:
So I just want to say something about the domestic violence and the relevance or the lack of relevance about that because there’s been a lot of evidence about that in this trial and yesterday of course the first hour or so of Ms Payne’s evidence, we heard a lot of - well, you know, some pretty gruesome details she was giving us about her life with Noel Payne.
In terms of that account, well, it’s a matter for you. I mean, my personal opinions don’t matter, lawyers aren’t really supposed to talk about it but no doubt at least some of it’s true, some of it may be a bit exaggerated, some parts might not be true. I mean, Noel Payne isn’t here to give you his side of it but no question from me, there’s validity to at least a substantial amount of it but what’s the relevance of it is the real question because - I mean, sometimes in a case where domestic violence is raised what happens is the surviving spouse says - and it’s often in these scenarios a woman - usually of course, says that she had to do what she did in self-defence, you know, she’s married to an abusive and violent man, and she’s worried he’s going to kill her or kill someone else, perhaps the child or kill her usually. She had to kill him in self-defence.
This passage led in to a submission that this was not a self-defence case, and that the defence was that death was accidental. As such, it was said, the evidence of domestic violence had limited relevance, the key issue instead being ‘Did she mean to kill him?’.
It would have been better, in handling this sensitive topic, for the prosecutor to have avoided the language of personal opinion — as he himself acknowledged. But the evidence of domestic violence was not unfairly diminished by the way the prosecutor approached the topic. He was entitled to submit that the issue was of limited relevance in the case, in the way he explained.
Self-defence
Finally, the applicant relied on a hypothetical scenario put forward by the prosecutor in which a woman ‘says that she had to do what she did in self-defence’. The applicant pointed out that self-defence was not part of the defence case and was entirely irrelevant to it.
The respondent submitted that the prosecutor acted properly in identifying and addressing an issue that may have been in the minds of the jury. It was submitted that counsel is entitled to address such issues and make clear that they do not form part of the trial. It was submitted that it was appropriate for the parties to assist the jury in how the issue of family violence could be relevant to their task, and how it could not. It was further submitted that no objection was taken by experienced defence counsel at trial.
In relation to the final matter, the applicant submitted that the fact that no objection was taken, and no application for the discharge of the jury was made, was not a bar to the Court upholding this submission.[11]
[11]Saddik v The Queen [2018] VSCA 249 [115]–[119] (Kaye and Niall JJA).
The applicant’s argument on this issue builds on the one about personal opinion, just considered, and must be rejected for the same reasons.
Conclusion — ground 2
The applicant submitted that it is well established that a prosecutor must act with scrupulous fairness in the presentation of a prosecution case, and a failure to do so may result in a substantial miscarriage of justice. In particular, a prosecutor should refrain in a closing address from:
(a)making submissions unsupported by evidence;
(b)making submissions intended to persuade the jury by reason of factors of prejudice against the accused;
(c)making submissions which invite an impermissible path of reasoning, including by inviting the jury to speculate or reason by conjecture;
(d)making submissions that undermine the onus of proof;
(e)making submissions criticising a witness without giving that witness an opportunity to respond to those criticisms; and
(f)making submissions that convey the prosecutor’s personal opinions.
So much may be readily accepted. But for the reasons given above, the prosecutor’s submissions did not contravene these requirements. Nor is the applicant’s case strengthened by considering the cumulative effect of the matters identified. It is relevant in that regard that no application for the discharge of the jury was made after the prosecutor’s address, notwithstanding it is now submitted to have caused a substantial miscarriage of justice. There is no substance in the ground.
It follows that the applicant has not established a substantial miscarriage of justice.
This proposed ground must therefore fail and leave to appeal must be refused accordingly
SENTENCE APPEAL
Sentencing submissions
At the plea hearing, counsel for the applicant argued for a significant degree of mercy and a longer than usual parole period. It was submitted that the objective gravity of the offending fell at the lowest end and that the background of chronic and sustained family violence justified leniency and mercy in the sentence. It was submitted that the offending was unsophisticated, demonstrating a lack of premeditation. Counsel contended that specific deterrence and community protection were not relevant to the applicant’s sentence but that rehabilitation was a prominent consideration.
The mitigating factors submitted on behalf of the applicant included suffering from a very difficult upbringing, with significant exposure to family violence. The applicant fell pregnant at a young age and did not finish high school as a result. She had almost no employment history. She is the mother of six children, one of whom was murdered in 2017. She had endured a marriage of significant family violence, sexual, financial, and psychological abuse, and was forced by Noel Payne to cease contact with her parents and eldest children. She had a limited criminal history which was irrelevant.
The applicant suffered from a range of mental health issues including depression, persistent depressive disorder, chronic non-psychotic mood disorder, and post-traumatic stress disorder. She had previously attempted suicide.
It was submitted that the applicant displayed extreme remorse for her actions. While in custody she had gained employment and engaged in every therapeutic opportunity to deal with her underlying issues, and to further her rehabilitation and education. She acted as a ‘mother’ role model to fellow prisoners.
The prosecutor submitted at the plea hearing that this was a serious example of murder and that it was premeditated and involved a gross breach of trust against a helpless victim. It was submitted that the applicant intended to kill, rather than cause really serious injury, and that the offending was not unsophisticated.
The prosecutor also submitted that the applicant had lied about certain matters when giving evidence at trial and that facts attested to by her on the plea, such as her history of family violence, should be treated with caution and only accepted where there was supporting evidence. The prosecutor rejected the suggestion that the applicant was remorseful.
The prosecutor submitted that, although the deceased’s behaviour towards the applicant was relevant to her moral culpability, the applicant had options which would have enabled her to leave the relationship, as she had done twice before, including ownership of a car and a phone and a bank account holding $9,000.
Sentencing remarks
The judge found it unnecessary to decide whether the applicant intended to kill the deceased or to cause him really serious injury.[12] Her Honour was satisfied that the applicant’s actions did not indicate any careful planning, and that it was not a sophisticated plan, especially because the substance administered was not intrinsically lethal. The judge found that the actions of the applicant in concealing the deceased’s body had all the hallmarks of someone in a disorganised and panicked state of mind.[13]
[12]DPP v Payne [2023] VSC 286 [23] (Incerti J) (‘Sentencing Remarks’). The judge said that this was on the basis that moral culpability was to be determined by reference to the conduct and nature of the killing, rather than intent, citing R v Walters [2012] VSC 608 (‘Walters’). Although nothing turns on it for present purposes, the judge should not be understood as having expressed this as a general principle: see Likiardopoulos v The Queen (2010) 30 VR 654, 685 [145], 688 [161] (Buchanan, Ashley and Tate JJA); and Barrett v The Queen (2010) 27 VR 522, 528 [27] (Maxwell P and Neave JA, Nettle JA agreeing at [61]), cited in Walters at [20]–[21] (Macaulay J).
[13]Sentencing Remarks [25].
Next, the judge referred to victim impact statements prepared by Noel Payne’s daughter, sister-in-law and niece, and by Alice. The judge noted that the statements spoke of the heartbreak and life-changing effect of the applicant’s actions.[14]
[14]Ibid [28].
Turning to the question of moral culpability, the judge rejected the submission of the prosecutor that the applicant had options to leave the deceased. Limiting factors included his controlling and coercive behaviour, court orders preventing her from taking her children, her limited financial means and the fact that she and the deceased lived in a remote and isolated part of Victoria during the COVID-19 pandemic. The judge said that, while such considerations did not provide an excuse for murder, they explained why the applicant’s moral culpability was at the lower end.[15]
[15]Ibid [33].
The judge accepted that the applicant’s actions took place in the context of considerable emotional, sexual and physical abuse and that she was entitled to be distressed, overwhelmed or even angry, but not to ‘deliberately kill’ the deceased as she did.[16] The judge referred to the evidence of domestic violence, including from the applicant, Alice, Brock Payne and others, as well as court documents, photographs and videos taken by Noel Payne of the applicant and Alice.[17] The judge continued:
[16]Ibid [67].
[17]Ibid [47].
It is true that the jury did not accept all of your evidence and concluded that you were not truthful in some matters. I have assessed your evidence in relation to the family violence bearing in mind the jury found you to be untruthful in some matters. Having heard your evidence and considering the corroborating evidence, I consider you were truthful in your account of the ongoing, extreme and prolonged physical, sexual and emotional abuse and coercive control that you were subjected to over many years by Mr Payne.
You gave evidence that Mr Payne first became violent towards you approximately three years into your relationship with him. The abuse began before you moved to Walpeup.
You were subjected to physical violence during the marriage including being pushed, shoved, punched, spat on, and choked when you refused to have sex. You were subjected to degrading verbal abuse most days. You were subjected to sexually coercive behaviour of various kinds, such as being forced to engage in sexual activity with [Alice] while Mr Payne filmed it and being repeatedly raped by Mr Payne when you declined his requests for sex. You explained in your evidence, that Mr Payne would do this ‘really whenever he felt like it because if I said no, he’d just take it and do it anyway’. For example, you gave evidence that there were ‘times when the kids would be in their room and he’d want sex and I’d say, “no”, so he’d just push me down and rape me, and then as soon as he heard … the boys coming down, he would stop’.
Mr Payne exerted a high level of control over the minutiae of your day-to-day life. You were not allowed to speak to any of your family or friends. You were not allowed to shower alone, go for a walk or even check the mail by yourself. Mr Payne exerted his power over your body such as wanting you to be a certain weight and taking photos of you to track your weight. He would not allow you to go out on your own and required you to repeat housework if there was any aspect that was not done to his satisfaction. You had to ‘cut, file, shape and moisturise his feet and get the dead skin off his feet and lay his clothes out’. Your mobile phone was in Mr Payne’s name so that he could control the billing and monitor your communications. Mr Payne had control of the household finances. He accompanied you to doctors’ appointments and would wait in the waiting room and then interrogate you immediately afterwards. He did not allow you to have any ongoing contact with your parents or broader family and, as I have said, did not allow you to attend your son’s funeral.
After a second period of separation from Mr Payne, in 2012, you lived in a women’s shelter for about four months. When you returned to the home, [Alice] had moved in.
About a month or so after you returned, you and Mr Payne had an argument in relation to his control over the finances. Mr Payne took you to a gravel road, near the cemetery. He dragged you out of the car by your hair. He kicked you in the ribs while you were on the ground and spat on you. When you returned to the house you were too scared to go inside, so you stayed outside until Mr Payne went to sleep. [Alice] gave evidence that on that day she saw dirt on your arms, and on your clothing.
You have Mr Payne’s name tattooed on your body 18 times, including across your neck, in between your legs, across your tailbone, bottom, hip, pelvis, shoulder blades and four times across both breasts. Your evidence was that Mr Payne ‘wanted his name tattooed all over [your] body because who would want someone who had someone else’s name tattooed all over [them]’.
Before [Alice] moved into the home, she had no tattoos. [Alice] now has Mr Payne’s name five times on her body, in ‘places you can only see if [she is] naked’. [Alice] has Mr Payne’s name tattooed underneath her breast and on her right thigh. [Alice] said in her victim impact statement that Mr Payne ‘made [her] get these because he wouldn’t let [her] find someone else’. In describing the impact of this, [Alice] told the Court, they ‘can’t be removed they are very dark and thick writing – he wanted to keep me all for himself’.
Mr Payne would take sexual images of you at least four or five times a week. Mr Payne would often force you and [Alice] to stand together naked, in various degrading positions while he took photos and videos.
Mr Payne would also make you and [Alice] dress up in costumes, lingerie or identical dresses, for the purpose of taking sexual photos of you both.
The Court was shown only a limited number of the images and photographs of you and [Alice] found on Mr Payne’s phone. The photos and videos shown during the trial depicting the sexual abuse of you and [Alice] were so depraved and distressing that it is difficult to capture the horror of such abuse with words.
…
The nature and severity of the emotional and physical abuse inflicted on you by Mr Payne was graphically shown in the videos and photographs tendered into evidence. I reject the prosecution’s submission that the videos and photographs of you do not reflect abuse by Mr Payne on you. The abuse was insidious. The videos depict you engaging in demeaning and cruel acts and I accept your evidence that you were not a willing participant. He made you perform sexual acts, including having sex with him and recording the acts on video. I accept that these were done without your consent. You were trapped in an abusive, violent and cruel environment for over a decade. In addition to your own circumstance of family violence, you were also subjected to witnessing family violence perpetrated by Mr Payne on your children and [Alice].[18]
[18]Ibid [48]–[58], [63].
Notwithstanding this terrible history, however, as the sentencing judge observed, the applicant was not entitled to deliberately kill Noel Payne by administering the temazepam in a biscuit to him. There was no legally justifiable reason to kill him.
The judge took into account the applicant’s personal history, her relationship with Noel Payne, her mental health, the principles of Bugmy, her limited criminal history, and her good character. The judge had regard to the standard sentence of 25 years’ imprisonment for murder, as well as the nature and gravity of the offence and the applicant’s degree of responsibility.[19]
[19]Sentencing Remarks [36]–[73], [76], [81].
The judge described the case as unique, in that the applicant was a victim of family violence at the hands of the person she had killed, but not in the context of self-defence which would have provided a legal excuse. Ultimately, the judge considered that the offending fell at the lower range of objective seriousness for the offence of murder.[20]
[20]Ibid [79]–[80].
The judge considered the applicant had excellent prospects of rehabilitation. She treated the applicant’s offer of a plea of guilty to manslaughter as an acceptance of her responsibility for causing the death of the deceased. The judge accepted that the applicant was remorseful and that the burden of imprisonment would be greater for her as a result of being separated from her children; she had also been on remand during the COVID-19 pandemic, which involved a more burdensome and punitive form of custody. The judge considered denunciation, and specific and general deterrence, as less relevant sentencing considerations, whereas mercy and parsimony were important factors.[21]
[21]Ibid [82]–[83], [85]–[98].
Submissions on sentence
The applicant submitted that mercy played a pivotal role on the plea and, while it was acknowledged to an extent in the sentence imposed, the sentence and non-parole period remained manifestly excessive. It was submitted that the applicant’s circumstances were so unique and the depravity she was exposed and subjected to so prolonged that no other comparable case could properly be called in aid to assist the sentencing judge as to an appropriate disposition. The applicant submitted that the case called out irresistibly for the exercise of the discretion of mercy to reflect the underlying sense of humanity which guides proper sentencing.[22]
[22]DPP v Snow [2020] VSCA 67 [86] (Maxwell P, Beach JA and Croucher AJA).
The respondent submitted that the sentence imposed was lenient. It was submitted that the objective gravity of the offending was high, being a murder in a domestic environment followed by an attempt to conceal the body. The respondent noted the standard sentence of 25 years for the offence of murder and submitted that a head sentence of 16 years was amongst the lowest imposed for murder since the standard sentence scheme was introduced — and this was following a contested trial. A table of sentences provided to the judge on the plea showed that the most lenient sentence under the standard sentence scheme following a not guilty plea for the offence of murder was 22 years’ imprisonment.
Consideration
As noted, the applicant was sentenced for murder under the standard sentence scheme in the Sentencing Act 1991. The standard sentence for murder is 25 years’ imprisonment.[23] As such, the period of 25 years is the sentence for murder, taking into account only the objective factors affecting the relative seriousness of that offence, that is in the middle of the range of seriousness: s 5A(1)(b). Those objective factors are to be determined without reference to matters personal to the particular offender and wholly by reference to the nature of the offending: s 5A(3)(b).
[23]Crimes Act 1958, s 3(2)(b).
The court is required to take the standard sentence into account as one of the factors relevant to sentencing, but this does not limit the matters that the court is otherwise required or permitted to take into account in determining the appropriate sentence: s 5B(2), (3). Unless the court considers that it is the interests of justice not to do so, it must fix a non-parole period of at least 60 per cent of the head sentence, if that is a term of less than 20 years: s 11A(4)(c).
The standard sentence scheme does not displace the instinctive synthesis approach to sentencing: s 5B(3)(b). The standard sentence is but one of a number of relevant considerations, and it operates as a guidepost or yardstick within that approach.[24]
[24]Brown v The Queen (2019) 59 VR 462, 479 [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA)
An argument alleging manifest excess in a sentence impugns the exercise of the sentencing discretion, without necessarily ascribing the asserted miscarriage in the discretion to any specific error, as contemplated in House v The King.[25] The applicant must show that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[26]
[25](1936) 55 CLR 499, 504–5 (Dixon, Evatt and McTiernan JJ). See Markarian v The Queen (2005) 228 CLR 357, 370–1 [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Hili v The Queen (2010) 242 CLR 520, 538 [58] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[26]Ayol v The Queen [2014] VSCA 151 [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
The sentencing task in the present case was a complex one. The murder of Noel Payne was deliberate. Although the judge found that the offence did not involve ‘any real degree of premeditation or significant planning’,[27] and while it lacked sophistication, it had been contemplated for a time beforehand. At the same time, the motive for the killing had built up and festered in the sordid and stifling environment created by the cruel and degrading conduct of the deceased over many years. The sentencing task was made more difficult by the absence of any comparable case under the standard sentence scheme. The judge was not permitted to have regard to sentences imposed outside the standard sentence scheme: s 5B(2)(b). She was therefore sentencing effectively without the benefit of one of the yardsticks normally available to sentencing judges, in the form of current sentencing practice.[28]
[27]Sentencing Remarks [26].
[28]That is not to say, sadly, that the circumstances in which the applicant, and Alice, were living were unique to this case: see, eg, Rowan v The King [2022] VSCA 236 [92]–[109] (Kyrou, McLeish and Niall JJA).
The other principal yardsticks, being the maximum sentence of imprisonment for life and the standard sentence of 25 years, were not especially helpful in a case where the offender’s moral culpability was as attenuated as the judge found. Moreover, the sentencing exercise in this case involved consideration of the important role to be played by mercy, inherently a difficult factor to weigh in any case.
The judge was keenly alive to all these matters, and appropriately acknowledged that the case was one calling for mercy. At the same time, the sentence needed to denounce the deliberate taking of human life, and to act as a general deterrent, lest it be mistakenly perceived that the law encourages others to act as this offender did. And the applicant did not have the sentencing benefit that a plea of guilty would have conferred. It is significant, however, that when the applicant was arraigned at the commencement of the trial, she did plead guilty to manslaughter, and, to that extent, she admitted to, and took responsibility for, causing the death of Noel Payne by an unlawful and dangerous act.
It is important not to understate the significance of the judge’s finding as to the applicant’s reduced moral culpability. In that respect, it is noted that the defence of provocation, which formerly supported a verdict of manslaughter in cases like this one, where the accused caused death while provoked in a manner capable of causing an ordinary person to lose self-control and act as the accused did, was abolished in 2005;[29] the successor offence of defensive homicide was itself abolished in 2014.[30] Although the law as to criminal responsibility has changed in this way, however, the circumstances which underlay the former defence of provocation remain relevant to sentencing generally, and to an assessment of an accused’s moral culpability, in particular.[31]
[29]Crimes (Homicide) Act 2005, s 3, inserting Crimes Act 1958 s 3B.
[30]As to defensive homicide, see Crimes (Homicide ) Act 2005, s 6, inserting Crimes Act 1958, s 9AD (repealed by Crimes Amendment (Abolition of Defensive Homicide) Act 2014, s 3(3)). At the same time, a statutory form of self-defence was introduced: s 9AC; see now, Crimes Act 1958, ss 322K, 322M as inserted by Crimes Amendment (Abolition of Defensive Homicide) Act 2014, s 4 (which was not relied upon in the present case).
[31]Tyne v Tasmania (2005) 15 Tas R 221, 227 [18] (Underwood CJ, Slicer J agreeing at 227 [21]), 228–9 [26]–[28] (Blow J); Kourpanidis v The Queen [2022] ACTCA 11 [27] (Mossop, Abraham JJ and Walmsley AJ); R v Freeman [2015] VSC 506 [34]–[38], [42] (Croucher J); Victoria, Hansard, Legislative Assembly, 6 October 2005, 1349 (the Honourable Rob Hulls, Attorney-General); see also Kelly v The Queen [2000] VSCA 164 [13]–[15] (Chernov JA, Charles JA agreeing at [26], Buchanan JA agreeing at [27]).
Taking all these matters together, along with the other factors canvassed in the judge’s comprehensive and thoughtful sentencing remarks, we have come to the view that this sentence, despite the acknowledged role that mercy played in the judge’s instinctive synthesis, was manifestly excessive.
The applicant was 41 years old at the time of the offending. She had endured upwards of ten years of intolerable and seemingly escalating emotional and physical torment at the hands of the deceased. Her situation was, the judge found, inescapable.[32] Having lost her thirties in this way, she now stands to lose her forties and more as a result of the offence she committed. That is no small thing, especially given that she will be separated from her children. These exceptional circumstances are a sure foundation for a proper exercise of mercy, and for an assessment of the applicant’s reduced moral culpability for her offending.
[32]Sentencing Remarks [33].
In all the circumstances of this remarkable case, we will allow the appeal against sentence and in its place impose a sentence of 12 years’ imprisonment, with a non-parole period of 7 years. We regard this case as wholly exceptional.
The period of 7 years that we will fix as the non-parole period is less than 60 per cent of the head sentence. Section 11A(4) of the Sentencing Act permits that course where the court considers that it is in the interests of justice. The court is required to state its reasons for doing so.[33] In short, having regard to the applicant’s reduced moral culpability and her excellent prospects of rehabilitation as found by the sentencing judge, together with the other matters referred to above, 7 years is the minimum time that we consider justice requires the applicant to serve, having regard to all the circumstances of the case.[34]
[33]Sentencing Act, s 5B(4)(b).
[34]Bugmy v The Queen(1990) 169 CLR 525, 530–1 (Mason CJ and McHugh J), 536 (Dawson, Toohey and Gaudron JJ).
Conclusion
The applicant applied for leave to appeal her conviction and sentence several months out of time. In seeking an extension of time, she relied principally upon circumstances involving her legal advisers which were said to be outside her control. Leave to extend time to seek leave to appeal against sentence should be granted. It would, however, be futile to grant an extension of time in which to seek leave to appeal against conviction.
In the result, the application for an extension of time in which to seek leave to appeal against conviction should be dismissed. The application for an extension of time in which to seek leave to appeal against sentence should be allowed, leave to appeal should be granted and the appeal allowed. The sentence imposed on the applicant should be set aside and she should be resentenced as set out above.
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