Pyliotis v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0089
S APCR 2019 0128

KATIA PYLIOTIS	Applicant
v
THE QUEEN	Respondent

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
KATIA PYLIOTIS	Respondent

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JUDGES:	PRIEST, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 May 2020
DATE OF JUDGMENT:	27 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 134
JUDGMENT APPEALED FROM:	R v Pyliotis (Unreported, Supreme Court of Victoria, Coghlan JA, 17 December 2018) (Conviction)

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CRIMINAL LAW — Appeal — Conviction — Whether judge’s comments on facts occasioned substantial miscarriage of justice — Appeal allowed — Conviction quashed — New trial ordered – McKell v The Queen (2019) 264 CLR 307.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C B Boyce QC with Ms A Ellis	Ms A Hogan, Solicitor for Public Prosecutions
For the Applicant/Respondent	Mr D A Dann QC with Ms M O’Brien	Stary Norton Halphen

PRIEST JA
NIALL JA
T FORREST JA:

Overview

Eliah Abdelmessih’s badly beaten body was found by police in his East Kew home on Tuesday, 20 September 2005. Mr Abdelmessih had been subjected to a brutal and sustained attack, which had left him with severe head injuries. Police had been called by a concerned neighbour, who had not been able to have Mr Abdelmessih answer the door.

Through forensic investigation, the DNA of a female was found at the scene. That female was to remain unidentified for more than a decade, until, in May 2016, the DNA was matched to Katia Pyliotis (for convenience, ‘the applicant’). Her DNA had been taken when she was involved in a relatively minor criminal matter and her profile placed on the national database. As a result of the match, on 16 May 2016 the applicant was arrested in South Australia at the place at which she was working as a volunteer. She was charged with murder.

In November and December 2018 the applicant was tried for Mr Abdelmessih’s murder in the Supreme Court. The applicant’s ‘defence’ was that there was a reasonable possibility that Susan Reddie — who had confessed to killing Mr Abdelmessih — was in fact the individual responsible for his death. On 17 December 2018, however, after a 25 day trial, the jury empanelled in the applicant’s trial found her guilty of murder.

Later, on 11 April 2019, following a plea conducted on 28 March 2019, the trial judge sentenced the applicant to be imprisoned for 19 years, and fixed a non-parole period of 15 years and six months.

The applicant now seeks leave to appeal against her conviction on two grounds which assert that a substantial miscarriage of justice occurred: first, as a result of the nature and extent of comments made by the trial judge in the course of the trial; and, secondly, because the jury ‘were not sufficiently directed as to the significant forensic disadvantage experienced’ by the applicant.

For the reasons that follow, we are of the opinion that the first ground must succeed. The applicant’s conviction cannot be permitted to stand. Leave to appeal must be granted; the appeal allowed; the conviction set aside; and a new trial ordered.

Given our conclusions as to conviction, it is unnecessary to consider an appeal against the applicant’s sentence initiated by the Director of Public Prosecutions by a Notice dated 9 May 2019.

The evidence

So as to understand the issues raised in the conviction application, it is necessary to summarise the main aspects of the evidence in the trial in some detail.

The applicant and the deceased

In September 2005, the applicant was aged 23 years.[1] At that time, Eliah Abdelmessih — a sometime customer of the McDonald’s restaurant in Kew where the applicant worked — was a 69 year old[2] retired widower living alone in Kew.
[1]Her date of birth is 24 December 1981.
[2]He was born in Egypt on 1 June 1936.

The crime scene

The evidence revealed that Mr Abdelmessih was killed in his home on Sunday, 18 September 2005. He was bludgeoned with household items and was left with his face submerged in a bowl of water. Crime scene investigation revealed DNA from an unidentified female — dubbed by police ‘unknown female 1’ — in various locations throughout Mr Abdelmessih’s house.

Mr Abdelmessih’s body was, as we have mentioned, found on Tuesday, 20 September 2005. A neighbour, William Taylor, concerned for Mr Abdelmessih’s welfare, rang the doorbell of his house and tried the doors, but could not get in. Out of concern, Mr Taylor telephoned the police. As a result, at about 12.40 pm, police attended. Looking through a window, police could see Mr Abdelmessih on the floor. Constable Lindsay Wood climbed in a window. The scene obviously was suspicious. And Mr Abdelmessih obviously was dead. The Homicide Squad was contacted.

The body was face down on the floor in the entry foyer, the legs partly in the lounge room. Mr Abdelmessih was dressed in a white singlet, red flannelette shirt, blue jacket and black underpants. The clothing was bloodstained, and a pair of bloodstained tracksuit pants was located close to his head. There were obvious injuries to Mr Abdelmessih’s head, which was partially immersed in a red plastic bowl containing bloodstained water, with his nose, mouth, eyes and left ear submerged.

Several bloodstained items were located on the floor close to the body, including a broken ceramic statue of the Virgin Mary and a tin of mangos. Damage to the statue of the Virgin Mary had exposed a sharp edge. A vacant area of the mantel piece in the lounge room was observed in a position directly opposite a corresponding statue of Jesus. On the lounge room floor, close to the deceased’s legs, was a black ‘Thinsulate’ brand left glove (later determined to have the applicant’s DNA in it). The glove had damage — appearing to be a combination of a cut and a tear — to the left index finger. (Other evidence showed that, following her arrest, the applicant was found to have a scar on her left index finger.)

Near the entrance to a shower room at the rear of the premises there was a broken and bloodstained wine bottle. Two bloodstained empty cardboard toilet rolls were in the bathroom. Blood staining was observed on the tiles above the bathroom vanity, on a tap in the laundry and on the wrapping of a bunch of flowers in the laundry trough. A plastic shopping bag in the corner of the sunroom (located behind a larger plastic bag) contained bloodstained towels, medical dressings and toilet paper. There was significant blood staining throughout the house, including on both sides of the front door, and on the floors, walls and internal doors in the lounge room and front foyer.

Steven Fowler, a forensic scientist expert in forensic biology, carried out a bloodstain pattern analysis. He concluded that the majority of actions causing blood distribution within the house had occurred in the entry foyer. There had been multiple applications of force to liquid blood in that area, and at least one application of force to a source of liquid blood whilst Mr Abdelmessih had been in a horizontal or near horizontal face down position with his upper clothing pushed up exposing his back. Mr Fowler noted at least five different objects in the entry foyer which could have been directly involved in events causing blood distribution, including the tin of mangos, the statue of the Virgin Mary, a glass vase, two wrenches and at least one ceramic ornament. There had also been an event involving the application of force to a source of liquid blood adjacent to the doorway to the shower room.

DNA analysis of swabs and other items confirmed the presence of Mr Abdelmessih’s blood at a number of locations and on many items within the house. The DNA of an unknown female — as we have said, later shown to be the applicant’s — was also found throughout the house on various items.

Kathryn Bradley, a forensic biologist, was a senior case manager in the biological services group of the Victorian Police Forensic Services Centre. She tested various items from the crime scene in the laboratory for the presence of DNA. The applicant’s and Mr Abdelmessih’s DNA was found on a number of those items. Some items had multiple contributors, including unidentified DNA profiles. Ms Bradley gave evidence that she was asked to compare the DNA profile of Susan Reddie ‘to particular DNA samples, where there was DNA that couldn’t be accounted for by the deceased, or the accused’. Susan Reddie was excluded as a contributor to the mixed DNA profiles found on latex gloves; the handle of a plastic bag; and the handle of a wrench.

We pause to note that, when cross-examined by counsel for the applicant about the absence of DNA on a broken wine bottle found at the crime scene, Ms Bradley gave evidence that ‘the amount of DNA that someone might deposit through touching or handling an item can vary greatly from person to person and our ability to collect and analyse that DNA also can be variable depending on the surface being examined’. There was then further cross-examination, directed to the phenomenon of ‘shedding’:

[DEFENCE COUNSEL]: You’ve just spoken there about the notion of shedding in DNA, that’s right?---Yes, that’s correct.
As individuals – and this is only fairly recent knowledge, is it not, we shed differently?---Yes, so there’s been various studies done about the shedding of DNA or the amount of DNA deposited on surfaces and not only does it vary from person to person, it can also vary for the same person at different times of the day. It can vary depending on how recently someone washed their hands for example, and there’s various other variables involved as well so it’s very difficult to predict whether you can obtain a DNA profile from a touched object or not.
…
The idea of – I think – is it described in the literature as high shedder or low shedder, what's the – what are the descriptors used in the science?---In some of the research papers, some individuals are described as being good shedders of DNA in comparison to others so they’re more likely to deposit detectable quantities of DNA on an item than another individual. But that research also indicates that a person’s shedding status, if you’d like to put it that way, can vary from day to day and time to time.

Post-mortem

A post-mortem examination was performed by Dr David Ranson. Mr Abdelmessih’s body showed many signs of recent injury. There were widespread lacerations, bruising and abrasions to the head, principally over the front of the face on the right side, the right side of the head, and the top and back of the head. On the right side of the back of the head there was extensive laceration with separation of the skin of the scalp from the surface of the skull. There were also bruises and abrasions to other parts of the body, including the right arm and hand and both legs. The cause of death was determined to be ‘head injury in a man with immersion of his head and upper airways’.

Arrest and interview

As previously mentioned, the applicant was involved in a relatively minor criminal matter in South Australia in 2016, which led to her DNA being taken and her profile being placed on the national database. In May 2016, that profile was matched to the DNA which had been extracted from biological samples found in Mr Abdelmessih’s home.

Police arrested the applicant in South Australia on 19 May 2016. The Informant, Detective Senior Constable Joshua Renfrey, and Detective Sergeant Paul Rowe, then conducted a record of interview with the applicant at the Adelaide City Watch House (in the course of which she told a number of lies). By way of brief (and incomplete) summary, at an early stage of the interview police showed the applicant a photograph of Mr Abdelmessih. The applicant said she recognised the photograph, because it had been displayed in the McDonald’s store in Kew where she worked. She said she knew him, and described him as a ‘regular customer’. The applicant said she was in a ‘bit of a shock’ that it was him they were talking about. She said she remembered his ‘big blue beastie car’ which he used to park right in front of the store. One of the other full-time staff at McDonald’s, called ‘Sarah’, had given Mr Abdelmessih a box of items such as bottles, vases and similar, after he had requested that they give him things for his wife. As a result, the applicant said, some evidence will be present.

We pause once more to note that the recorded evidence of Sarah Guest, given during an earlier trial on 10 November 2017, was played to the jury. At the time of giving evidence, she was living in Queensland. Previously, ‘from around August 2005 to around late November or early December 2005’, she had worked at the McDonald’s store in Kew. She did not remember ‘any other Sarahs’ working there. Ms Guest said that she recognised the man who had been murdered from pictures. As far as she could recall, she had no ‘interactions’ with him. Ms Guest said she ‘had a few shifts’ with the applicant, and they ‘shared some friends’ and ‘hung out’ during her time working in Melbourne. She did not give the deceased any items from a ‘garage sale’ and could not remember the applicant having done so.

Returning to the applicant’s record of interview, the applicant told police that the deceased was an ‘old guy’ who seemed a bit lonely. She would say ‘hello’ and ‘goodbye’ to him, but the most she ever talked to him was when she and Sarah gave him the box containing bottles and vases. Police asked the applicant if she had any relationship or association with him outside McDonald’s. She replied, ‘God, no, God, no, no, no, no’, saying, ‘He was like an old man, old enough to be my grandpa’. The applicant told police that she did not know his address, and had never been to his house. She asserted that she had no involvement in his death, and could not tell police anything about his death. The applicant said that he had not done anything that would make her resent or dislike him, or have any animosity towards him. She said he came into the McDonald’s two or three times a day, and seemed to have all his meals there. The deceased, she said, made some people feel uncomfortable. He had poor hygiene, and smelled like a cigarette. She said that he was a lonely old man but that she thought he had a wife.

In the course of the interview, police asked the applicant to show them her hands. She had a scar on her left index finger — matching the tear or cut to the Thinsulate glove found at the crime scene — but ‘couldn’t say from what though’. She said, ‘I think if it was a significant one, I’d probably remember’. Interviewing police showed her a photograph of the damaged black Thinsulate glove and put it to her that the glove had her DNA inside. The applicant said that the glove was not hers. She said that she could not remember ever having owned or worn a pair of gloves like them, but volunteered that ‘maybe’ the glove had been in the box of items that she had given to Mr Abdelmessih. When it was pointed out to her that the damage to the glove corresponded to the scar on her finger, she said, ‘Do you have any proof that that’s my glove? Do you have my DNA?’. When told that her DNA had been found inside the glove, she said that all she could think of was that the glove had been inside the stuff in the box that she gave to Mr Abdelmessih.

Further, the applicant was unable to explain the finding of Mr Abdelmessih’s blood or DNA on the same glove. Nor could she explain the finding of her own blood on the empty toilet roll, or on the tiles in the bathroom or the tap in the laundry. She then said: ‘But I can see where this is all going. I’m going to murder for gaol’ [sic]. She said: ‘I can’t believe it. This is fucked. I’m not going down for this’.

When asked to explain the finding of hers and Mr Abdelmessih’s blood on the statue of the Virgin Mary — with which the deceased apparently had been struck — she said: ‘I don’t know. I’d love to have an answer but I don’t know. I can’t think of anything that makes sense of this. Fuck this, I’m not going down for murder, no way’.

Police then executed a search warrant at the applicant’s premises. In her bedroom, pointed out to police by her housemate, a black Thinsulate glove was found (albeit it was not a pair of the one found at the crime scene).

The applicant was extradited back to Victoria and charged with murder. She provided her fingerprints and forensic buccal swabs for DNA.

Dr Leo Smith carried out a forensic medical examination of the applicant at 2.45 pm on 20 May 2016. On the ‘most outer aspect of the left index finger, just next to the nail bed’, Dr Smith observed ‘a small, pale, faded scar about five millimetres in length, that is slightly arced’. The applicant provided no explanation as to how the scar was caused.

Telephone conversations in custody

Thereafter, whilst in custody, the applicant took part in a number of telephone conversations with family. Significantly, contrary to her denials in the initial interview, the applicant on several occasions during telephone calls said things connecting her to the crime or the crime scene. Thus, by way of example, in a conversation with her sister, Hanna Pyliotis, on 19 August 2016, there was the following exchange:

[APPLICANT]: … my lawyer wants me to, like – I don’t have a motive, I don’t have a motive, I don’t have – like, the other person that they questioned didn’t vouch for me. They’re – they’re denying or – or not cooperating. The other girl who I went to the person’s house with, they’ve unfortunately died, like, in a car accident a year later so urn I’m I’m – I’m being stitched up with everything. There’s no urn – there’s no – yeah, I’m– I’m screwed. I got assessed by a psychologist here and there’s a possibility I might have post-trauma amnesia, like, I can’t – you know, even if I did do it, I can’t remember. That – that might be a possibility but I still don’t think I did it. I think, you know, I would remember and also I reckon if I was to do such a thing to such a person I would have a reason, you know. And I don’t, I don’t have a motive. This person didn’t – this person didn’t harm me. It was my own fault. I should have reported them – the death when – when I found him.
[HANNA PYLIOTIS]: You were scared.
[APPLICANT]: Yeah, I was scared and I – I ran .

In another call the next day, there was the following interchange:

[APPLICANT]: You’d – you’d think that if you – if you did something like that to someone you would remember it.
[HANNA PYLIOTIS]: Yep.
[APPLICANT]: Or – or you would – you would have suffered something from it. Like, other than not reporting it to the police, I didn’t give it much thought after six to 12 months. You know, I carried on with my life and I didn’t look back.
[HANNA PYLIOTIS]: Mm.
[APPLICANT]: Because there’s something that just doesn’t add up and they can’t – I just – I’m not – I’m not – I’m not settled with the idea that there’s no other person’s fingerprints in that premises. That’s – that’s – that’s bullshit, you know. When I found him he was well and truly gone.

Later that same day, 20 August 2016, the applicant had a telephone conversation with her mother, which included:

[MOTHER]: Look is – if the – the – the – the proof, the evidence were against you - - -
[APPLICANT]: Which it is.
[MOTHER]: Yeah, yeah. Look it – .......... that thing happened because that guy tried something ..........
[APPLICANT]: No, I don’t remember it like that mum. Please don’t say that. Please don’t say that ‘cause that’s not the case. I don’t have anything against the person, they didn’t do anything wrong. O.K.

Susan Reddie confesses to the killing

Detective Inspector Wayne Newman gave evidence that in September 2005 he was a Detective Senior Constable attached to the Homicide Squad. He attended Mr Abdelmessih’s home in East Kew at about 2.17 pm on Tuesday, 20 September 2005. As a result of something that he was told by a neighbour, William Taylor, at 9.15 am on 28 September 2005 Detective Newman went to the Cotham Road Community Residential Unit, Kew — a care facility for people with intellectual disabilities — to speak to a resident, Susan Reddie, who ‘may have at some stage, attended at the deceased’s property’. He there spoke to a supervisor, who told him that Susan Reddie had an acquired brain injury. Detective Senior Constable Warren Ryan, the then Informant, had a conversation with Ms Reddie in the supervisor’s presence, which Detective Newman recorded using a digital micro-recording device. The recording, Exhibit 54A, was played to the jury.

In the course of the conversation, Ms Reddie — who died of natural causes in 2012 — said she and the deceased ‘used to make love for $20’. She would ‘wank’ him in the bedroom. It would happen when she would see him at ‘Maccas’ (the Kew McDonald’s restaurant) at 9.00 am. Sometimes she would lie on the bed with her underwear and jeans down and he would ‘climb on top’ of her until he ejaculated (without penetration). Ms Reddie described Mr Abdelmessih as a ‘lonely, ‘nice’ person with a ‘good heart’, who had ‘heaps’ of cash. She had been to his home ‘10 to 15’ times, ‘always for sex’.

Later that day, at 3.40 pm, Detective Newman and Detective Sergeant Timothy Argall, commenced an audio-visual record of interview with Ms Reddie at the Homicide Squad offices. Dr Amanda Wilkin, a forensic medical officer, first assessed that Susan Reddie was fit to be interviewed. An independent third person was present throughout the interview. The record of interview, Exhibit 55A, was played to the jury.

During the interview, Ms Reddie told police that she had anal sex with Mr Abdelmessih for $20. He did that ‘all the time’. She said that she saw ‘Eliah’ at McDonald’s after drinking ‘heaps’ and went back to his place. He gave her bourbon and coke. Importantly, early in the interview Ms Reddie told police that she hit Mr Abdelmessih with a ‘rock’ and ran out the door. The relevant part of the interview is as follows:

Q. O.K.
A. No, no, no, wait a minute, wait a minute, wait. You were asking me about the house, and remember at the start I told you it was James and then you said that – what’s his name again, the guy you’re ---
Q. Elia.
A. Yeah, Elia. And then you said his – you know, his house is a mess and all that garbage. You’d been there, done this, done that, you poor thing. But you said that he’s thing. And I know him. I know about at least 10 times ---
Q. Mm.
A. Even – even more, even more.
Q. O.K.
A. But, listen, I’ve got no idea because I saw him – the last time ever I saw him it was on Sunday ---
Q. Right.
A. Right. But what I can remember – I – I can’ t sort of – I remember I was pissed ---
Q. Yes.
A. --- like – right.
Q. Yeah.
A. I was drunk like a dog, ‘cause I ---
Q. Mm.
A. I went to the bottle shop and bought a cask, right. I used to get that every time he used to take me up to the house. And I was sitting there in the lounge room. It’s a mess, but I sat down.
Q. Yeah.
A. And there was a table beside me and there was a table on the right side. And I dunno why, because I – I must have- slowly .......... hit the roof.
Q. Yeah.
A. Because one thing I cannot remember – it’s a – it’s a weirdos – I cannot remember what – I would have grabbed anything – I would have grabbed, like – you know, whether it was, like, a rock – because he’s been – I would have hit him.
Q. O.K.
A. No, no, look, I’m not gunna lie, mate.
Q. Yeah.
A. It’s the truth. But I must have – I’ve got no idea. I ran out through the door – why – but when I fuckin’ fight, mate, they’re gunna be in hospital.
Q. O.K.
A. I fight them hard, mate.

Ross Bracken worked at the Cotham Road Community Residential Unit in 2005. It was a residence for people with acquired brain injuries, helping them to develop independent living skills. There were five male residents, and two females, including Susan Reddie. Mr Bracken said that Ms Reddie ‘would’ve been the highest functioning client we had there … without her addiction problems, she would’ve been able to live independently’. Sometimes, after being out, Ms Reddie would return to the facility intoxicated, and sometimes with bruising or a cut lip, saying she had been in a fight. Mr Bracken said; ‘She would prostitute [sic] while she was out, so sometimes that would go wrong, um, that sort of thing’. She went missing for a few days — between 15 and 18 September 2005 — and was returned to the facility by police in the evening of 19 September 2005, ‘mildly intoxicated’.

Of some importance, Mr Bracken gave evidence that, after she was returned to the facility on 28 September 2005 following her interview with the Homicide Squad, Susan Reddie said to him: ‘I did it mate. It’s me’. Ms Reddie then confessed that she had killed Mr Abdelmessih. Mr Bracken wrote a report concerning the day’s events — including the confession — which included the following:

At approximately 6 pm Sue [Reddie] arrived back to the service with several members of the investigation team. They produced [the writer] with a search warrant for Cotham Road. The police then proceeded to find a blood spotted pair of runners and a blood spotted towel. Police then requested that Sue go with them to Willow Lodge to point out and photograph the things she was talking about in her interview earlier that day. Sue left with the police team. After arriving home a second time from an extensive day of police questioning, a tired Sue walked into her unit and two members of the police investigation team stayed in the office to talk to [the writer] about Sue’s involvement in the current investigation. The two members of the police informed [the writer] that Sue was involved in the murder of [Eliah]. They informed staff member that they were looking for further information to either include or exclude her in the investigation. They request that all staff interacting with Sue that night and the next day be made aware of the associated investigation with Sue. They informed [the writer] that Sue is a possible threat to staff and other clients at the service. Police informed [the writer] to keep a close eye on Sue in case she decided to do a ‘Thelma and Louise’ or harm herself. After police left [the writer] entered into Sue’s unit and Sue requested [the writer] to have a private talk. [The writer] and Sue went into the bedroom. Sue said, ‘I’ve got something bad to tell you, mate. You know what they [the police] are talking about’. [The writer] asked Sue, ‘Did you do it?’ Sue began to cry and proceeded to inform [the writer] that she went over to the now deceased’s house where she was going to perform sexual acts on him. She explained to [the writer] that she had had quite a lot to drink and was extremely intoxicated. She said the deceased was speaking rudely to her, she asked him to stop, however he continued. Sue then informed [the writer] that something in my head snapped. She picked up an item, which she described to [the writer] as a glass ball paperweight object which was clear or white in colour. She then informed [the writer] that she repeatedly hit the man until he collapsed. She informed [the writer] that blood sprayed over her face, hands and all down the top she was wearing, the top she had on at this time. She then proceeded to wash her hands and leave the deceased’s residence. She then informed [the writer] the next thing she remember is being at Willow Lodge on 18 Bakers Road, Hawthorn, where she asked someone to wash her clothes.

Susan Reddie allegedly recants

Warren Ryan, who in 2005 had been a Detective attached to the Homicide Squad, but was now a police officer in Queensland, gave evidence in the prosecution case. He testified that, soon after the murder, posters displaying the deceased’s photograph, seeking information from the public, were put up in places that Mr Abdelmessih frequented, such as the McDonald’s and Safeway stores in Kew. From information thereby gained, he and Detective Newman went to the facility in Cotham Road, Kew, and recorded a conversation with Susan Reddie, using a ‘field recording device’ that was ‘fashioned into a pen’ worn by Detective Newman.

A matter of some controversy at trial, Mr Ryan claimed that he had a further conversation with Susan Reddie after the interview of 28 September 2005 — the two of them alone — and she recanted her confession. (The defence claimed that the evidence of the supposed recantation was fabricated.)

Although he could not be specific, Mr Ryan asserted in his evidence that the relevant conversation was on a date ‘after’ 3 October 2005. Mr Ryan said he knew it was after that date, because he had Mr Bracken’s statement — made 3 October 2005 — with him. He said he found Ms Reddie ‘around midday’ in a ‘front garden setting’ of the Safeway store in Kew. She got into the rear of the police car, and he took notes of their conversation in his diary. (He did not have the diary — he had not seen it since he resigned from Victoria Police in 2009 — and it could not be found.)

Mr Ryan gave evidence that he wanted to speak to Ms Reddie because he had become aware of the confession made to Mr Bracken. She told him that the confession to Mr Bracken was not true, and she said: ‘No, I thought that’s what he wanted to hear. He was firing questions at me. I wanted him to go away. I wanted the questioning to stop and so I told him that and then um he went away’. By the time that he had this conversation with her, Mr Ryan was also aware that Susan Reddie had been excluded as a depositor of the female DNA found at the crime scene. As he spoke to her, he ‘had the diary rested on the back of the police car and just recorded the conversation that [he] had with her in a paraphrased format’. No further formal interview of Ms Reddie concerning her conversation with Mr Bracken was conducted. Mr Ryan said:

She’d been um formally interviewed um less than a week earlier and um she’d been excluded by way of DNA. Um she’d been partially alibied for that period of time when we believe the deceased had been killed. Ah we’d investigated her through other methods, including witness testimony. We couldn’t place her at the scene by any method. She didn’t have a bank card or phone records which would be a traditional method of investigating someone. Um we couldn’t place her at or near the crime scene and there was no evidence to link her to the crime scene.

Mr Ryan gave evidence that, about a year after Mr Abdelmessih’s death, a reward of $100,000 was offered for information leading to the apprehension of persons responsible. In part, the reward document — prepared by Mr Ryan — read: ‘The Director of Public Prosecutions will consider according to established guidelines the [granting] of the indemnification from prosecution to any person who provided information as to the identity of the principle offender or offenders in this matter’.[3]
[3]After this evidence was elicited, the trial judge interceded and said:
I should perhaps tell the ladies and gentlemen of the jury I was probably the Director of Public Prosecutions who approved that. Nothing turns on it in this case. That is the absolute standard form in which rewards are offered. But they're not offered without consultation with the Director, just because those words are going to be used. But … it’s just better for people to know about these things than not know, that’s all. … But it’s got nothing really to do with the case and I certainly don’t remember the case, I must say.

Cross-examined, Mr Ryan agreed that when he made a statement for the Coroner in 2008, some 67 ‘information reports’ — which record information received, and the steps taken, as part of the investigation — had been generated. None of those 67 information reports recorded his meeting with Susan Reddie, and in none ‘is there any reference to her recanting the confession to Ross Bracken’. When it was put to Mr Ryan that he does not ‘produce any independent record of that recantation’, he answered: ‘Well, I can’t, because it’s recorded in my diary’. He understood that his diary was lost. Mr Ryan denied the allegation put to him that the ‘supposed meeting and recantation of Susan Reddie’ was made up. He agreed, however, that nobody had signed or otherwise corroborated his notes. Further, Mr Ryan agreed that he prepared a witness list and summary for the Coroner; and that, although he had referred to Ms Reddie being ‘formally interviewed by Homicide Squad investigators’, he had made no mention of the supposed recantation.

Counsel also cross-examined Mr Ryan on an email exchange he had in May 2017 with a Homicide Squad officer, Detective Senior Constable Joshua Renfrey — now the Informant — who had arrested and interviewed the applicant. On 22 May 2017, Detective Renfrey wrote: ‘Defence have jumped all over Sue Reddie as the alternate [scil, alternative] suspect … Just trying to negate her confession to her worker and explain it’. Remarkably, when Mr Ryan responded the same day, he said nothing about the recantation; yet, when he came to make a statement in October 2017, he included the supposed recantation. Finally, counsel elicited from Mr Ryan that he had been reprimanded, and had a two year freeze put on his Queensland Police salary, because of misconduct relating to the interview of a suspect.

We pause once again to note that, very significantly, other evidence seemed to establish that it was impossible for Mr Ryan to have had the ‘recantation’ conversation with Ms Reddie when he said that he did. Thus, Angela Robinson, the Manager of Divisional Disability Client Services for the Department of Health and Human Services in the East Division, gave evidence that Susan Reddie was a resident of a facility, Charlton House, located in Bundoora, from 30 September 2005 until 7 November 2005. Ms Reddie’s move to Charlton House from the Cotham Road facility ‘was arranged because she was part of an ongoing police investigation during that period’. Once her involvement in that investigation ceased, she was then able to return to the Cotham Road facility in Kew. While at Charlton House, notes were kept recording her progress. Ms Reddie was able to ‘access the community in the company of a carer’, but there was no ‘record of her having an independent outing whilst at Charlton House’.

At the risk of a further digression, it is also significant that Ms Robinson additionally gave evidence of the contents of a note concerning Ms Reddie made on 1 October 2005 by a carer during her stay at Charlton House:

Sue awoke at approximately 9.30 am. She has been chatty and seems relaxed at Charlton. Easily engaging in conversation with staff and co-clients. Staff have attempted to redirect Sue’s conversation away from her current situation. However, over the space of this eight hour shift, Sue has said to the writer that she, ‘Must have done it. The old man has no other friends’. The last thing she remembers is picking up something heavy. She can’t remember anything. She was extremely drunk. Had to be, in order to do what he wanted sexually. His house is filthy. She was offered the opportunity to go out today, however declined preferring to rest at Charlton. Spoke with Susan Sloane in the afternoon.

A threat to kill

Abouseifein Ayad gave evidence that his former wife, Susan Ayad, was Mr Abdelmessih’s goddaughter. He said Mr Abdelmessih — whose wife, Rita, died in 2004 — was a very religious man who attended the Coptic Orthodox church in Bulleen. Mr Ayad had given evidence at committal that, on Friday, 16 September 2005, he had spoken to Mr Abdelmessih over the telephone. It was the last conversation that he had with him. Mr Ayad said that the deceased had asked him to call every day to check on him. Mr Abdelmessih had told him that a couple of months earlier a ‘crazy woman’ had told the deceased to stay away from her or she would kill him. And in his statement to police, Mr Ayad had said:

Eliah also told me about eight to ten months ago, he was approached by a lady that had been asking for money at the Safeway in Kew. Eliah told me the lady … had come back to his house. Eliah told me that she is always at the Safeway asking for money. Eliah told me that the lady asked him for money while at his house, but he had given her $20. Eliah said that this had upset her, and she left the house. I don’t know if Eliah and this lady had sex or not. Eliah talked about sex, and I know that he watched lots of pornographic videos. …

Susan Reddie’s washed clothes

Christian Ross and Tiffany McFie lived together at Willow House in Barkers Road, Kew — a place where, Mr Ross said, ‘people with mental problems an alcohol problems tend to live’ — in September 2005. Mr Ross gave evidence that he met Sue Reddie when having a few drinks ‘down like near Safeway’. She was living in Cotham Road, but spent the weekend commencing Friday, 16 September 2005, at Willow House with him and Ms McFie drinking. He and Ms McFie — but not ‘Sue’ — used amphetamines. They had a ‘threesome’ on Saturday night. On Sunday, Sue gave Ms McFie her clothes to wash. Mr Ross and Ms McFie took the clothes to Ms McFie’s Richmond home for that to be done. The next day, 19 September 2005, police arrived. Sue left with the police. In her statement, which was read to the jury, Ms McFie — who had since died — said:

Sue was taken away by the police on Thursday, 29 September 2005. Police came to my room in Barkers Road and asked me if I knew where Sue’s clothes were. I took the detective to my place in Richmond to search for the clothes, but I couldn’t find them. I don’t know where Sue’s clothes are, but I will continue to look for them and notify the police if I find them.

Conviction ground 1: The trial judge’s comments

The applicant’s ‘defence’ was, as we have said, that there was a reasonable possibility that Susan Reddie alone was responsible for Mr Abdelmessih’s murder. Put another way, the contention central to the defence case was that the prosecution could not exclude the reasonable hypothesis that Susan Reddie killed Mr Abdelmessih. In support of that contention, counsel for the applicant relied principally (although not exclusively) on the contents of Ms Reddie’s confession to Ross Bracken that she had repeatedly struck the deceased with a glass item until he collapsed. It was also important to the applicant’s ‘defence’ that the jury reject (or at least have a reasonable doubt about) Detective Ryan’s evidence concerning Susan Reddie’s purported recantation of her confession.

It was plain from the outset of the trial that Susan Reddie’s confession — and the suggested recantation of that confession — would be pivotal issues. Thus, in opening the case to the jury, prosecuting counsel informed the jury of Susan Reddie’s confession to Mr Bracken, and the retraction to Detective Ryan, telling the jury they were ‘going to have to assess all of this’. And counsel leading for the defence opened (in part) by saying:

You heard a little bit about what, I suppose, is described as a recantation or a rejection of the confession that she’d made. And you’ll hear evidence from a police officer about that. One of the original investigators, Mr Ryan. That’s going to be in issue in this case. And when we get to his evidence, I want you to think about these questions. Firstly, what were the circumstances of that alleged recantation by Ms Reddie in October 2005? When did it first emerge and in what circumstances? Is that recantation described by Mr Ryan … probable? Is it plausible? Or does some features of his evidence and that recantation which should [sic] concern you? But this will all come out in the evidence. All I can do at this moment is highlight those issues.
So that’s Susan Reddie. That’s the first issue. …

Unsurprisingly, arguments attempting to debunk the defence hypothesis that Susan Reddie was the true killer occupied much of the prosecution’s final address. By way of example, after taking the jury through the critical parts of Susan Reddie’s record of interview, prosecuting counsel submitted (among other things) that there is

almost a willingness in all of that, you might think, to believe that maybe she’d be involved. But it’s hardly a memory of any clarity whatsoever, members of the jury, and it’s got to be on the defence case. ...
Now, Sue Reddie was obviously concerned about the fact that she’d been drunk when she’d last seen him. And she was prepared to volunteer to the police, to the Homicide Squad that she could do violent things when she was drunk, members of the jury. And perhaps she was even willing to believe it.

But if you look at everything else she said in the interview it’s very clear that she had no memory of ever having done anything to Mr Abdelmessih. And really when you look at all of it, it’s also very clear that she’s not describing some event that took place on Sunday, 18 September 2005, when she met him at a McDonald’s. And that just can’t tally up with what she talks about the last time she saw him.
But her willingness to maybe perhaps even entertain the idea that something happened when she was drunk is a reflection of her very limited intelligence, her open manner, her perhaps attitude when she was with the police that day; how impressed she was by it all. Her lack of a filter in the way that she spoke and her suggestable personality, members of the jury.

Correspondingly, the defence theory that Susan Reddie was the killer — or the contention that the prosecution could not exclude beyond reasonable doubt that she was not the killer — was the backbone of the defence final address to the jury. Thus, counsel leading for the applicant submitted that when Susan Reddie used the word ‘rock’ as the object with which she hit the deceased, ‘she’s not saying it was a rock’, but was ‘attempting to describe something in that room’. Counsel drew the jury’s attention to the dimensions of a piece of ceramic found in close proximity to the body, and said: ‘Is Ms Reddie at that point of the record of interview referring to that ceramic piece, which is under the body of the deceased or is she referring to another ceramic item … [?]’. Referring to another part of the interview where Ms Reddie said that the sex was ‘hell’, and that the $20 she was given for it was ‘a bit of a rip off’, counsel argued:

So what are we to make of that? In terms of a potential motive for Susan Reddie? It’ll be a matter for you to assess that. But there is certainly some bitterness. There is certainly some describing it as being in hell, is a very strong expression by her. And I suggest if she was feeling that way, like she told the police, having feelings like that of being in hell could produce very strong feelings in a person, remember, who says that when she was effected by alcohol could become very violent.

Later, counsel for the applicant advanced the following arguments about Susan Reddie’s possible motives:

Because what I want to suggest to you is, in that record of interview and in that field interview, Susan Reddie has detailed a motivation. She’s chronicled how she feels towards this man. How he made her feel powerless and when you look at this crime scene and the extent of the violence, this is clearly a crime of some type of passion and you can see it in the scene. There are multiple weapons. At least two sites where violence has been inflicted. You have the man’s tracksuit pants off.
We know that there was this arrangement between them and if we’re talking about a motive in this case, you appear to have it there in what she told the police and what she told, not only in the record of interview, but also what she told the police in the field interview. …

Later still, counsel turned to Susan Reddie’s confession to Ross Bracken, and the suggested recantation:

Ross Bracken represents, I suggest to you, the obstacle in the pathway of the conviction of my client. The prosecution have tried to get around it, explain it away. We’ve had Mr Ryan come down from Queensland to try and negate this confession to Ross Bracken and I’ll get to him in a moment. But remember this, Ross Bracken’s evidence in this trial went in excess of 100 pages. …
This man provided a substantial, credible, reliable body of evidence and he’s very important. And on many levels he was perhaps one of the most impressive witnesses in this trial. …
… Let’s look at the confession. Now as I said to you before, this is really powerful evidence because it’s effectively not challenged, in the sense that Mr Bracken had this conversation with her. He documented it. So all these years later, you had the benefit of it. And you heard from him, how some of the words were changed but that was his interpretation of certain things.
…
This is the note, … ‘At approximately 6 pm, Sue arrived back to the service. The police then proceeded to find a blood spotted pair of runners and a blood spotted towel. The police then requested that Sue go with them to Willow Lodge, to point out and to photograph, the things she was talking about in her interview earlier today’. Let’s stop there. This towel that was found as part of the execution of the search warrant. That’s been tested. But the shoes haven’t. Where are these shoes? We simply don’t know. But we do know that Ross Bracken saw them and described them with his very own eyes, and they were located in the wardrobe of Susan Reddie’s room.
‘After police left the writer [which is Mr Bracken] entered into Sue’s unit and Sue requested writer to have a private talk. Writer and Sue went into the bedroom. Sue said, “I’ve got something bad to tell you, mate”. “You know what day the police are talking about?” Writer asked Sue, “Did you do it?” Sue began to cry and proceeded to inform writer that she went over to the now-deceased’s house, where she was going to perform sexual acts. She explained to the writer that she had quite a lot to drink and was extremely intoxicated. She said the deceased was speaking rudely to her. She asked him to stop, however he continued. Sue informed writer that “something in my head snapped”. She picked up an item which she described to writer as a glass ball paperweight object, which was clear or white in colour. She then informed the writer that she repeatedly hit the man until he collapsed. She informed writer the blood sprayed over her face, hands and all down the top she was wearing. The top she had on at this time. She then proceeds to wash her hands and leave the deceased’s residence. She informed the writer the next thing she remembers is being at Willow Lodge on Barkers Road, Hawthorn, where she asked someone to wash her clothes’.
The prosecution says not reliable. That argument might have some weight here if Susan Reddie had said, ‘I shot him with a gun’. It might have some weight if she said, ‘I strangled him to death’. It might have some weight if this man was stabbed to death. But we know [he] wasn’t.
You’ve seen the crime scene photos. This was a vicious, sustained attack with objects from that house. No objects brought in, objects at that scene it would appear.
Look at the evidence of Mr Fowler, look at the foyer area. Remember Susan Reddie has not been provided these details. Has not been told by the police any of this, yet somehow, despite some of the difficulties describing objects and you understand from the evidence of Ross Bracken, why that’s so.
She finds it difficult to use complex descriptors to describe objects. But she’s spot-on, isn’t she? Spot-on. She was going to perform sexual acts. His track suit pants are off.
As I say, this is a significant obstacle to any finding of guilt against my client. …

Dealing with the alleged absence of Susan Reddie’s DNA at the crime scene, counsel said:

And that’s really important in a case like this, where a number of potential murder weapons were not tested, and sampled. So you can – all you can say really about Susan Reddie, is she’s excluded from the objects that were collected and sampled and tested. That’s as high as it can go. And that’s really important and put it in perspective. I mean the prosecutor might have been blinded by the DNA evidence. You look at all of the evidence and see if it still marries up. And when you think about it, what are some of the other limitations on this DNA evidence?
Well, remember the notion of shedding. Mr Fowler and Ms Bradley gave evidence of shedding. It wasn’t referred to at all in the prosecutor’s closing because it creates some difficulties, doesn’t it? And you’ll remember the evidence of Ms Bradley. As individuals, we all shed material, biological material that can be tested for DNA differently. There are good shedders, there are poor shedders, and in fact in this particular case, if you look at what she examined … you’ll remember she examined a number of items and she found this.
The following samples gave no DNA, no DNA profile or insufficient DNA profile to enable comparisons to reference samples. So what that means, in effect, is that there can be touch of an object, but it doesn’t necessarily leave a trace, in a sense that the science does not pick up what was – what may have been left behind, and read carefully through that evidence because it is important in the circumstances of this case. Those limitations of DNA science.
And when you think about it, you also had fingerprint evidence in this case, and you might think well what, why is that important? Well, read it … . This is important evidence and it shows you again, like with the DNA, the limitation of this science, and they took many samples, they tested many areas, they had Susan Reddie, they had my client and they had the deceased. He lived there. We know Sue Reddie had been there on a number of occasions. Not one of his fingerprints were found in the house.
You might say, well how does that happen? Well, it shows you again, the limits of fingerprint science to detect matters and similarly, and recognised by both Ms Bradley and Mr Fowler, the notion that every touch leaves a trace is problematic when you look carefully at the DNA science.

Finally, counsel argued:

Very soon the baton’s going to pass to you and you’re going to be sitting in judgment of Ms Pyliotis. A criminal trial, as I said to you at the start, was not a search for the truth. You are not investigators or gap fillers. You don’t speculate. You act on the evidence. You also, in case like this, need to exclude all reasonable hypothesis consistent with innocence and you have before you, do you not, Susan Reddie?
And the way a criminal trial works, you may think, ‘Well, I want all the questions answered. I want this all to be married up in a box’, but it’s not like that. It’s not about that. What it’s about and only about is can you be satisfied beyond reasonable doubt the guilt of the accused and you might think of that, to make a finding of guilt like that, is a positive finding. You find that Ms Pyliotis caused the death of the deceased, but how is that possible with Sue Reddie? How is that simply possible? How can you exclude that reasonable possibility?

Before turning to the comments made by the judge in his charge, impugned under cover of the first ground, we note that counsel for the applicant submitted that various things said by the judge in the absence of the jury indicated that he had a negative view of key aspects of the defence. Those remarks perhaps explained why the judge had made the comments under challenge. Thus, by way of example, in the course of debate concerning an objection to a question asked of Detective Senior Sergeant Timothy Argall concerning his knowledge of Susan Reddie’s retraction, the judge said to defence counsel (in the jury’s absence): ‘… I think it’s all a big red herring’, and ‘… I make it clear to you that’s exactly what I’m going to tell this jury when the moment comes, that it’s a giant red herring’. In our view, however, in circumstances in which no submission of apprehended bias was advanced, such remarks are irrelevant to the resolution of the first ground. The judge’s expression of opinion was neither heard by the jury nor otherwise brought to their attention. Clearly, they cannot in any way have influenced the jury’s consideration of the evidence.

Of more moment are a number of negative comments made by the judge in the presence of the jury about cross-examination by defence counsel. One such comment was made in the course of cross-examination of Steven Fowler, the forensic scientist, as to whether those responsible for locating fingerprints had taken a photograph of a possible fingerprint in blood near the deadlock mechanism of the front door of the deceased’s home:

[PROSECUTOR]: Well, Your Honour, unless the witness has got personal knowledge of what the print people did, he can’t answer the question.
HIS HONOUR: I don’t know, this is even more boring than the other bits of it, but go on.
[DEFENCE COUNSEL]: Sorry, Your Honour?
HIS HONOUR: This is even more boring than the other bits of your cross-examination, but go on with it. It’s go nowhere, is it? We’re going to have the fingerprint people here.
[DEFENCE COUNSEL]: Thank you, Your Honour. Now - - -
HIS HONOUR: I mean, what we find out is, you criticise the man for not having a photograph and he has got a photograph.
[DEFENCE COUNSEL]: Yes, well - - -
HIS HONOUR: And that’s what happens when we keep going on and on and on, things that don’t help you emerge, it seems to me. Well, I’m not trying to be unhelpful, I just don’t - no, I won’t say it. I mean that little - the passage that’s gone on for the last ten minutes is as circular as it can possibly be. …

Even if it be assumed that counsel’s cross-examination had been overly long, and that it had thereby caused the trial judge some frustration, that provided no justification for the judge’s remarks. To describe counsel’s cross-examination as ‘boring’ — indeed, ‘even more boring than the other bits’ of his cross-examination — had the tendency to demean counsel’s competence, and to run the risk of diminishing his standing in the eyes of the jury. Comments such as these — if they are ever justified — should be reserved for occasions when the jury is absent. In our view, however, although the remarks were infelicitous, they would not have had any significant impact on the fairness of the applicant’s trial.

Against that backdrop, it is convenient to turn to the comments made by the trial judge to the jury in the course of his charge, impugned under cover of the first ground. As will be apparent, their significance varies. For ease of reference, they have been numbered (and an attempt made to set them out in the context in which they appear):

[1]The prosecution then submitted that there was overwhelming forensic evidence including the glove plus the lies and the post offence conduct. The lies are ten years after the event, the post offence conduct has gone on over the whole of the ten years. But in relation to the very brief number of things that are set out in the Arunta calls, it is that there is no explanation as to why it is or how it was that she came to be at the deceased’s house. It follows in relation to that, and if this be a comment of mine, treat it as a comment of mine – although I think it flows directly out of what was being said by the prosecutor – in that regard no explanation for being there, no explanation for wearing gloves and being there.
…
[2]Now the other aspect of that really at that time is that if there was an alternative suspect or suspects, they did not happen to leave any DNA or fingerprints at the scene. But you understand the separate criticism about that, which is not everything was examined in a way that might have revealed it. But it does not alter the fact that there is no other evidence.
[3]And this again might be a comment from me, does not seem to fit very well with the possibility of what the accused first says about, ‘I was there with someone else’. Well whoever that someone else is, it would not seem possible that it was Susan Reddie. And that is just one of the unknowns in the case. …
…
[4]And much seemed to have been made about the [Raynham] vase and the extent to which it played a part as a potential murder weapon. And you heard the whole defence argument about the reconstruction of the vase and what might have happened with it. And if I properly understand the argument, that one of the pieces of it, particularly the piece that is found inside the clothing of the deceased, might look something like a ball which might correspond with what was said by Sue Reddie.
This is a comment of mine, that that vase is found under the body. The body has fallen on top of it. Does not mean it did not play a part in it, of course it does not. And the connection with the pieces of the clothes and so on. But what part it played, when it is under the body, and one might imagine under the body at a point before the head or face was placed in the bowl. Just what role it might have played is really a matter for you. But they are all matters as I say, comment of mine, disregard it if you do not think it is helpful.
…
[5]He then dealt with the whole Susan Reddie allegation and before I go on to deal with that I might say of it, one of the things that was … said here was, the debate about Mr Ryan and whether or not he ever got the withdrawal of the confession. One thing seems to me to be certain and whether you take this as a comment of mine or as an instruction it’s not going to matter much. It seems impossible on the evidence that Mr Ryan got that withdrawal of the confession in the circumstances in which he described at the time he described it.
…
[6]So as a matter of fact, the police would have been faced at that time if they’d charged Susan Reddie with running a case dependent upon a confession but in relation to which at the crime scene there was no scientific evidence connecting her to it and a good deal of evidence that related to unidentified female one. So that’s the position that the police were in. Whether there’s some possibility that Mr Ryan is simply mistaken about when it was, would it seems to me to be speculation about it and you simply go that far. But what Ryan said was that he did have a note about it in his diary and his diary can’t be found and that’s one of the tyrannies of time that exist in this case.
But whether he could have known that his diary couldn’t be found might be quite another thing. But if it’s a comment from me, it’s a comment from me but it’s a question really of getting to the point that whether or not he ever had that conversation or not, mightn’t necessarily be a matter about which you need to make any particular finding because what you do know is the decision had been made at some stage, probably by about February, that they weren’t going to prosecute Ms Reddie and they were pressing on to try and find other suspects in the case. See it’s not that they gave up, it is that they pressed on with what was an active investigation which culminated later in 2006 with offer of the reward, so that all went on.
…
[7]… the fact of the matter is about Susan Reddie, there was a two year relationship between them, and a lot of the aspects from what Ms Reddie has said about it have been pretty awful for her, that he was a controlling man, and that it was a relationship in which he was cruel and exploitative.
And it was also true that she was aware of money that he had in his wallet. That is true, and it is one of the features of the case, that he was a person in the habit of having money around the house, you heard the aides give evidence about that, and had money in his wallet. The wallet have never been found, and the keys to the house have never been found, but this a comment of mine, if she committed the murder she returned to Barkers Road, there is not much doubt about that, and that is obvious because she is found at Barkers Road the next morning. The place does not seem to be awash with money. There does not seem to be any additional money.
…
[8]It was submitted to you that you will remember that Mr Ayad had said about the deceased that he had said quite near the time of his death that he was afraid of a crazy woman, and it was put to you that might have been Susan Reddie. This is just a comment of mine, but it strikes me that in relation to largely the relationship that, if you call it a relationship, that the deceased had with Ms Reddie was, he was largely in control of it in the sense that their interactions seemed to be him going to find her at the Safeway car park, and their interaction on the evidence of at least one of the witnesses was that she might even on occasions have stolen his money and run away and did not go with him, so he seemed to control the circumstances in which she came back to the house.

It does not mean of course, and it is not suggested, and it forms no part of the evidence in this case, or could, that the crazy woman being described had anything whatsoever to do with the accused. But all I am suggesting to you is, there is not much evidence to support the proposition that it was Susan Reddie.
…
[9]… Now [defence counsel] says, well if you accept the proposition that Ryan could not have got that … withdrawal of the confession in the circumstances he said, and it is quite clear that it is very difficult for him to have done so, if not impossible for him to have done so, and that therefore makes it difficult to act on his evidence.
Now that is not to say that he is telling lies about it. It is not to say that it could not have been made in different circumstances. But because that is the way it is described as occurring in that particular way, it is very difficult to act upon it. It is really, in [defence counsel’s] argument about it, just a concession of how powerful the confession was that we need to cast around and find evidence that would undermine it.
I said to you yesterday, whether it is a comment from me or really it arises out of what the prosecutor said, the fact of the matter was that by early 2006 the police were not prosecuting Ms Reddie. Whether the confession was formally withdrawn or not, the decision had been made and the emphasis of the case thereafter proceeded on the basis on trying to find the person who was the provider of unidentified female DNA no.1.
But [defence counsel] was putting to you as forcefully as he could, a part of the argument, there really was a feeling in the police that there was some significance about this confession and the attempt was made therefore to get rid of it. …
….
[10]… The inability to cross-examine some of the key witnesses because they had either died or were not here for other reasons, and I have already told you, that is a matter to which you must have proper regard, and the significance that you might think of the lack of complete testing of all of the possible murder weapons and other items at the crime scene.
But I remind you about that, you cannot speculate what such testing might have produced. The fact of the matter is it was not done, and the fact of the matter is that is a disadvantage for those who now have to run the case. But it does not create a piece of evidence of itself.
That it was submitted to you as part of that that – [defence counsel] submitted to you that not all of the pieces of evidence were followed through to the end. But what was clear about it I suppose, and again a comment from me, they kept it alive, the police kept it alive. They kept putting the posters out. They offered the reward. They did not just give up on it. They kept going.
[11]It was submitted by [defence counsel] that the murder might not have occurred on the Sunday morning. He said of that why were the lights left on in the house. It is a matter for you in looking at the photographs and so on about the extent to which blinds were left open and so on and how much came into the house, but if – a comment of mine – if the deceased man returned to the house at 6 am on a wet September Sunday morning, or shortly thereafter, about whether or not the lights would be on in the house.

In our view, the second and third, sixth and eighth comments are of particular significance. Indeed, we consider that they have occasioned a substantial miscarriage of justice.

At the time that the present trial was conducted, the High Court had not delivered McKell.[4] As this Court observed in Mareangareu,[5] until McKell the prevailing view in this State was that, when conducting a criminal jury trial, a trial judge could comment strongly on the facts provided that he or she informed the jury that they were the judges of the facts and were not bound by his or her comments.[6] Given McKell, that view can no longer be accepted (at least, without substantial qualification).[7]
[4]McKell v The Queen (2019) 264 CLR 307 (‘McKell’).
[5]Mareangareu v The Queen [2019] VSCA 101, [67] (Priest, Hargrave and Emerton JJA) (‘Mareangareu’).
[6]See for example R v Kerr(No 2) [1951] VLR 239; R v Tikos (No 2) [1963] VR 306; R v Mawson [1967] VR 205; R v Hughes (1989) 42 A Crim R 270; R v Boykovski (1991) 58 A Crim R 436.
[7]Mareangareu, [67].

In their joint judgment in McKell, Bell, Keane, Gordon and Edelman JJ, having set out a passage from RPS,[8] observed:[9]

A trial judge’s ‘broad discretion’ to comment on the facts of the case in a criminal trial is an aspect of the power by which a trial judge discharges the fundamental task of ensuring a fair trial of the accused. The discretion is to be exercised judicially as part of ensuring that the facts of the case are put ‘accurately and fairly’ to the jury. It is not exercisable, at large, independently of the fundamental task described above. A fortiori, the trial judges summing-up is not an occasion to address the jury in terms apt to add to the force of the case for the prosecution or the accused so as to sway the jury to either view. For that reason, as the plurality in RPS stated, judicial circumspection is required in the exercise of the discretion to comment.

[8]RPS v The Queen (2000) 199 CLR 620, 637 [42] (Gaudron ACJ, Gummow, Kirby and Hayne JJ).

[9]McKell, 312–3 [3] (footnotes omitted).

A majority of the New South Wales Court of Criminal Appeal in McKell (Payne JA and Fagan J, Beech-Jones J dissenting) had upheld convictions in a drug case, holding that certain comments of the trial judge in the course of his summing up had not occasioned a miscarriage of justice. The High Court took a different view. It quashed the convictions, concluding that comments made by the trial judge in the summing-up so favoured the prosecution, and were so unfair in their lack of balance, that justice had miscarried. In the joint judgment it was said:[10]

What has sometimes been described as the ‘right’ of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge’s duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters. Where a trial judge’s summing-up so favours the prosecution as to deny the accused a fair trial, the miscarriage of justice that results cannot be justified or excused by invoking the judge’s ‘right’ to comment on the facts. Accordingly, in the present case, Beech-Jones J was right to conclude that the trial judge’s summing-up was so unfair in its lack of balance that a miscarriage of justice occurred. In consequence, the appeal must be allowed, the conviction quashed and a new trial had.

[10]Ibid 322–3 [45].

As this Court noted in Mareangareu,[11] although what was said in the joint judgment concerning the scope of judicial comment may not have been dispositive of the appeal,[12] their Honours’ statements on the topic must be regarded as seriously considered obiter dicta, from which this Court cannot feel itself at liberty to depart.[13] And the Court said:[14]

It was made plain in the joint judgment that a judge in a criminal trial must bring judicial circumspection to bear when exercising his or her discretion to comment on the facts, and should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury. A judge’s right to comment must be seen as an aspect of the fundamental task of ensuring a fair trial for the accused, and ensuring that the facts are put to the jury accurately and fairly.
Bell, Keane, Gordon and Edelman JJ made clear that a trial judge must not comment on a disputed issue in such a way as to suggest how the jury should resolve that issue.[15] Such comments have two vices. First, since the jury is the constitutional tribunal for deciding issues of fact, a trial judge’s expressions of opinion on a disputed issue of fact is inconsistent with the function of the trial judge as it is now to be understood. It is ‘difficult to conceive of a situation in which the performance of the trial judge’s fundamental task of instructing the jury would be advanced, consistently with the role of the jury, by suggesting the determination of a disputed question of fact, the resolution of such questions being the exclusive province of the jury’.[16] Secondly, there is a tension between suggesting to the jury how they might think and then directing them that they should feel free to ignore the suggestion if they think differently. A jury may be swayed by the trial judge’s suggestion.[17] There remains scope, however, for comment by a trial judge, including where an expression of opinion on the determination of a matter of disputed fact may be necessary to maintain the balance of fairness between the parties.[18] Thus, judicial comment to correct errors that might otherwise adversely affect the jury’s ability to decide the case fairly on the merits is not objectionable.[19]

[11]Mareangareu, [71].

[12]McKell, 323 [46].

[13]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151 [134], 159 [158] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). For a discussion of the precedential effect of obiter dicta by the High Court, see Matthew Harding and Ian Malkin, ‘The High Court of Australia’s Obiter Dicta and Decision-Making in Lower Courts’ (2012) 34 Sydney Law Review 239.

[14]Mareangareu, [72]–[73].

[15]McKell, 323 [46].

[16]Ibid 324 [49].

[17]Ibid 324–5 [50].

[18]Ibid 325–6 [53].

[19]Ibid 326 [54].

Turning first to the second and third of the trial judge’s comments, we consider that there is a real risk that the jury may have interpreted what the judge said as foreclosing the possibility that Susan Reddie was at the scene of the murder. The judge introduced the impugned comment by saying that ‘if there was an alternative suspect or suspects, they did not happen to leave any DNA or fingerprints at the scene’. In the context of dealing with the possibility that the applicant had been at the scene with someone else, the judge said that ‘whoever that someone else is, it would not seem possible that it was Susan Reddie’. Although contextually the comment appears to have been directed to the applicant’s insinuation that she had been present with someone else,[20] and that they arrived after the killing had occurred, in our view there is a substantial risk that the jury may have interpreted the comment more broadly as marking the judge’s approval of the notion that Susan Reddie could not have been at the scene. If, as the judge commented to the jury, the absence of DNA did not ‘sit very well’ with the possibility that the applicant was there with someone else, it must also follow that it did not sit very well with the possibility that Susan Reddie was at the scene. That holds true regardless of whether she was the ‘someone else’ the applicant had referred to in the telephone conversation.
[20]See [30]–[31] above.

Standing alone, the fact that Susan Reddie’s DNA or fingerprints were not located on any item at the murder scene could not decisively have established that she had not been present. Yet, on one interpretation of the judge’s comment, that is what the jury may have understood the judge to have intended to convey. Quite apart from the fact that the comment might be expected to have carried weight in the jury’s eyes simply because it came from the judge, the jury had also been made aware that a reward for information had been posted — Susan Reddie by then having been discounted as a viable suspect — at a time when the judge had been the Director of Public Prosecutions, and probably with his approval.[21] So much was apt to intimate the judge’s negative view of the hypothesis that Susan Reddie may have been the real killer.
[21]See [43] and fn [3] above.

Defence counsel had been astute to emphasise (in no particular order) that Susan Reddie’s DNA and fingerprints had not been found notwithstanding that she had on occasion visited the deceased’s home for sexual purposes; that some people are ‘good shedders of DNA in comparison to others’ (and so are more likely to deposit detectable quantities of DNA on an item than another individual); and that a number of items at the crime scene had not been tested. That this is so, however, could not pre-emptively have neutralised the vice lurking in the third comment. In our view, there is an unacceptable risk that the jury may have interpreted the judge’s comment as endorsing the prosecution’s contention that Susan Reddie could not have been present at the scene, when the defence case rested solely on the proposition that she was the true killer. We acknowledge that counsel did not take an exception. But it is difficult to see how the damage could have been corrected without causing further detriment to the defence.

Turning next to the sixth comment, as discussed, the central pillar in the defence case was Susan Reddie’s confession to Mr Bracken. Defence counsel argued that, in light of the confession, it was not possible for the jury to convict the applicant of murder. They argued that the jury could not exclude the reasonable possibility that the confession may be true. Inextricably intertwined with that theme was the proposition that the compelling nature of the confession remained undiminished by anything that Detective Ryan had said, since the supposed recantation to him was a fabrication. Self-evidently, however, if the jury accepted his evidence that the recantation had been made, the credibility and cogency of the confession was reduced, and, correspondingly, so was the essential ‘defence’.

At trial, counsel for the applicant made an enthusiastic and, it might be thought, effective attack on Detective Ryan’s evidence concerning the claimed retraction. (Indeed, we consider there to have been formidable difficulties in accepting what Detective Ryan said about it.) That attack was necessary if the integrity and viability of the confession — the backbone of the defence — was to be maintained.

In those circumstances, it is regrettable that the judge felt the need to make the comment to the jury that ‘whether or not [Detective Ryan] ever had that conversation or not [sic], mightn’t necessarily be a matter about which you need to make any particular finding because what you do know is the decision had been made at some stage, probably by about February, that they weren’t going to prosecute Ms Reddie’. We consider that the comment was infected by two vices. First, it was apt to convey that acceptance or rejection of the evidence of the recantation was of no moment, when, quite plainly, the jury’s rejection of the evidence would have bolstered the credibility of Susan Reddie’s confession. Secondly, to tell the jury that making a finding about the evidence of the supposed recantation may not much matter had the tendency to endorse the notion that she was not considered to be a viable suspect. Both of these aspects were unduly prejudicial to the applicant’s case.

We note that, having made the sixth comment, the judge went on to tell the jury: ‘I just wanted to deal with what had been said about Mr Ryan, only because I do not want it to be a particular distraction about it’. Counsel for the applicant took exception to the judge’s characterisation of the ‘issue of Ryan being a distraction’, submitting that ‘there is some significance of it [sic] particularly given the communications from Detective Renfrey to Ryan that the police needed to negate the confession’. The trial judge responded:

Yes but I’m saying they can’t use it to negate the confession. That’s what I’ve told them. Because the issue at the end of the day in terms of the events that happened 12 years ago is that they didn’t prosecute. That’s the significance …

As far as we can tell, however, the judge did not instruct the jury at any point that they could not use Detective Ryan’s evidence to ‘negate the confession’.

Plainly, whether Susan Reddie had recanted her confession to Detective Ryan was far more than a mere ‘distraction’. Its importance, in our view, was manifest. Whether she had recanted was a contested fact in issue that had been opened by the prosecution. Indeed, its importance may be gauged from the fact that Detective Renfrey had informed Detective Ryan of the need to ‘negate her confession to her worker and explain it’.[22]
[22]See [45] above.

With respect, the judge’s comment that ‘it seems impossible on the evidence that Mr Ryan got that withdrawal of the confession in the circumstances in which he described at the time he described’, left open that it could have occurred at a different time and place. The comment was not in the nature of an instruction that Detective Ryan’s evidence could not be used to rebut the confession. Moreover, the judge’s comment that the jury need not decide the matter undermined the applicant’s ability to have the jury resolve the contested issue of fact in her favour.

Finally, we regard the eighth comment as having the capacity to undermine the reliance that the defence placed on the evidence of Susan Reddie’s tendency to, and propensity for, violence, particularly when intoxicated. First, the comment conveyed to the jury that Mr Abdelmessih was ‘in control’ of the relationship he had with Susan Reddie, thereby suggesting by a side-wind that it was unlikely that she would have perpetrated violence upon him. Secondly, the judge suggested to the jury in unequivocal terms that there was not much evidence to support the proposition that Susan Reddie was the ‘crazy woman’ whom the deceased feared. Particularly when considered with the other impugned comments, there is a risk that the eighth comment prejudiced the jury’s consideration of the applicant’s ‘defence’.

The judge’s comments added force to the prosecution case and undermined the applicant’s ‘defence’. They were not necessary to restore any balance of fairness between the prosecution and defence, nor to correct errors that might otherwise have adversely affected the jury’s capacity to decide the case fairly on the merits. In our opinion, there is a real risk that the comments may have unfavourably influenced the jury’s consideration of the defence case.

In these circumstances, we consider that there has been a substantial miscarriage of justice. Although we regard the prosecution case as strong, we do not consider conviction to be inevitable.

The first ground must be upheld.

Conviction ground 2: Forensic disadvantage direction

At the close of all of the evidence, the trial judge and counsel took part in the exercise contemplated by ss 11 and 12 of the Jury Directions Act 2015. Counsel for the applicant indicated a forensic disadvantage direction (under s 39) was not being sought. In those circumstances, s 16 constrained the trial judge not to give a forensic disadvantage direction unless satisfied that there were substantial and compelling reasons for doing so.

Under cover of the second ground, counsel for the applicant submitted that — notwithstanding that such a direction had not been sought — a forensic disadvantage direction should nonetheless have been given. That a forensic disadvantage direction was necessary could be gleaned from the fact that a direction had been sought by counsel, and had been given by Lasry J, in a previous trial. The direction given by Lasry J had (among other things) included guidance as to the disadvantage flowing to the defence from the inability to cross-examine Susan Reddie and Tiffany McFie, who had both died.

In this Court, counsel for the applicant submitted that trial counsel’s failure to seek a forensic disadvantage direction can be explained by the trial judge’s expressed view that ‘the whole notion of there being a forensic disadvantage warning in this case, is touching on the bizarre, quite frankly’; and by the judge’s observation that, if he were to give a ‘full’ forensic disadvantage direction, he would accompany it by an analysis which drew the jury’s attention to the fact that it had been open to the applicant to come forward. The applicant’s counsel also pointed to the judge’s observation in the course of the trial that the defence practitioners had not (as they could have) asked that various items located at the crime scene be tested.

The submissions of the applicant’s counsel cannot be accepted.

Were the applicant’s trial counsel of the opinion that a forensic disadvantage direction should have been given in their client’s interests, and so as to avoid a perceptible risk of a miscarriage of justice, it was incumbent upon them to seek it. Despite the judge having expressed in strong terms a negative provisional view about the need for such a direction, if counsel for the applicant genuinely considered that a direction was necessary, they had a duty to ask for it. Although counsel may have had good reason to suspect that any request for a forensic disadvantage direction would not be greeted by the judge with alacrity, counsel nonetheless had a duty to seek the direction, and to attempt — politely but firmly — to persuade the judge that, notwithstanding his tentative view, a direction should be given.[23] But counsel did not do so.
[23]In a different context, see R v Garth (1990) 49 A Crim R 298, 305 (McGarvie J).

This Court is in no position to second-guess why the applicant’s trial counsel did not seek a forensic disadvantage direction (despite such a direction having been given at an earlier trial). Certainly, the Court is unable categorically to say that the failure of counsel to seek the direction could not have been the product of a sound forensic decision. In that regard, we note that in the discussion at the close of the evidence as to the directions to be given in the charge, the judge said:

I mean, it’s necessary to say to the jury, I think from everyone’s point of view that one of the features about this case is that we’re trying events that occurred in 2005 and 2018 and there are elements of the evidence from everyone’s point of view that affects the case. … And if I was going to do it in that way I wouldn’t then go on to say anything about your client not coming forward. So you might have to think about what form of it I might give. But if I was to give a full forensic disadvantage warning I think I’d have to accompany it by saying, but in making that analysis it now appears that she was in a position to have come forward and … I’m not locked into that, but that’s just as a line of thought about it.

In responding to these observations, counsel leading for the defence appeared to concede that the judge’s signalled approach was an ‘attractive way’ — a ‘middle ground’ — ‘to deal with this issue’.

For these reasons, we would not uphold ground 2.

In the event of a retrial — and upon the assumption that the evidence remains substantially as it was in the present trial — it will be open to counsel to seek a forensic disadvantage direction. As we have observed, Lasry J saw fit to give such a direction in an earlier trial.

Conclusion

For the foregoing reasons, leave to appeal against conviction should be granted and the appeal allowed. The appellant’s conviction for murder should be set aside. Although the applicant previously has faced trial on four occasions, we would order a new trial. It will be a matter for the Director of Public Prosecutions whether the applicant faces trial for a fifth time.

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[2020] VSCA 134

27 May 2020