R v Alexander
[2006] VSCA 142
•6 July 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 95 of 2005
| THE QUEEN |
| v. |
| GRAEME JOHN ALEXANDER |
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JUDGES: | BUCHANAN, VINCENT and NEAVE, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF MENTION: | 23 March 2006 | |
DATES OF HEARING: | 22, 23, 24 May 2006 | |
DATE OF JUDGMENT: | 6 July 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 142 | |
PETITION FOR MERCY
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Criminal law – Murder – Petition for mercy – Fresh evidence – No significant possibility that the jury acting reasonably would have acquitted the petitioner had the fresh evidence been before it at trial.
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| APPEARANCES: | Counsel | Solicitors |
| For the Petitioner | Mr R. Richter, Q.C. with Mr C.B. Boyce | Lewenbeg & Lewenberg |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P. Mrs C.M. Quin | Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions |
BUCHANAN, J.A.:
VINCENT, J.A.:
NEAVE, J.A.:
The petitioner was found guilty in the Trial Division of this Court of the murder, on 26 November 1990, of his wife, Tania Alexander. He was subsequently sentenced to 18 years’ imprisonment and a minimum term of 15 years’ imprisonment was fixed.
By a notice dated 6 September 1993 the petitioner sought leave to appeal against his conviction. On 15 April 1994, the petitioner’s application was dismissed.[1]
[1]R. v. Alexander [1994] 2 V.R. 249.
On 26 April 2004, the petitioner submitted a petition for mercy to the Attorney-General and, on or about 22 March 2005, the Attorney-General referred the case to the Court of Appeal pursuant to s.584(a) of the Crimes Act 1958. The petition was based upon what was said to be new or fresh evidence.
The Background
In November 1990, the petitioner was residing in Yuille Street, Frankston with his wife and their three children. The family had moved from Queensland to the Yuille Street residence in July 1990.
Michael Devola, an estate agent, gave evidence that he prepared on behalf of the owner of the Yuille Street property a terms contract for the sale of the property to the deceased. On 24 July 1990, the petitioner, the deceased and the vendor attended at Devola’s office, where the contracts were signed by the deceased and the vendor and were exchanged. The contract price was $135,000 with a deposit of $70,000. The residue was payable on 24 July 1991. Devola gave evidence that at the time the contracts were signed and exchanged, the petitioner said that he expected to pay the residue after he had sold a boat he owned.
Michael Nathaniels, an estate agent, gave evidence that on 17 November 1990, he was instructed to list the Yuille Street property for sale and that the vendor was the deceased.
The petitioner, at that time, had been unemployed for the past two years.
During the trial, evidence was given that in 1988 and 1989, four life insurance policies with a total payout of approximately $800,000 had been taken out against the deceased’s life. The details of these policies were as follows:
· On 24 October 1988, a proposal was submitted to New Zealand Insurance Limited by the petitioner and the deceased for a term life insurance policy on the life of the deceased with a proposed sum of $600,000. On 9 December 1988 this proposal was altered to reduce the sum insured to $300,000 and a policy for that sum was issued on 4 January 1989 with monthly premiums of $75.25. This policy was owned by both the deceased and the petitioner.
· On 28 September 1989, Sun Alliance Life Assurance received proposals for life assurance policies in respect of each of the petitioner and the deceased in the sum of $200,000 each and payable to the estate of the insured person. These proposals were accepted on 10 October 1989 and policy documents were issued.
· On 2 November 1988 the petitioner made a written application to Westpac Life Limited for an accidental death policy to cover the petitioner and the deceased for the sum of $100,000 payable to the petitioner or to his estate.
· On 28 November 1988 the petitioner and the deceased made application to NRMA Life Limited for a term life insurance policy insuring the deceased’s life for the sum of $200,000 payable to the petitioner in the event of her death. The policy was issued on 9 February 1989. On 26 April 1989, ownership of that policy was assigned from the petitioner to the deceased.
On 26 April 1989, the deceased executed a will naming the petitioner as the sole life tenant of her estate and her three children as the residual beneficiaries.
Various relatives gave evidence that the deceased wore two rings on her fingers, one being a wedding ring and the other an engagement ring. She usually removed the engagement ring when she was doing the washing up.
The deceased’s sister, Rossanna Robertson, who resided in the United States of America, visited Australia for three weeks in August or September 1990. During that visit she saw the deceased on four occasions and on two of those occasions she also saw the petitioner. Robertson observed that during her visit the petitioner and the deceased were behaving towards each other in a manner different to that which she had observed in earlier years. She said: “I thought they were very cold to each other.” On the first of the occasions when she saw the petitioner with the deceased, the petitioner talked about a boat and said that unfortunately he had to sell it. The petitioner also told Robertson about intruders breaking into the house and told Robertson that those incidents had not been reported to the police.
The petitioner’s daughter, Michelle Alexander, deposed that two Sundays before 26 November 1990, she had seen a scruffy looking man leaning against the front fence and looking at their house. She had told the deceased about it.
The petitioner’s children and various relatives gave evidence to the effect that the petitioner had told them about previous break-ins and prowlers.
In the evening of Sunday 25 November 1990, Nathaniels, the estate agent, attended at the Yuille Street residence with prospective purchasers. He observed that there was a subdued atmosphere with no conversation occurring and he said that he just wanted to get out as quickly as possible.
The deceased’s father, Victor Pasitchnyj, stated that on 25 November 1990 he received a telephone call from the deceased and she sounded very upset.
The deceased’s sister, Rita Pasitchnyj, gave evidence that the family dog, a German Shepherd, was very protective of the deceased.
26 November 1990
On the morning of Monday 26 November 1990, the petitioner’s daughter, Michelle Alexander, left the family home to go to school at about 8.30 a.m. The deceased was then awake. The eldest son, Christopher, woke up at 8.30 a.m. and had breakfast. He had told his parents that he planned to go to the airport to pick up a copy of the Brisbane Courier Mail to look for jobs in Queensland, as he had the week before. Christopher and his brother, Shane, left at 9.30 a.m. and Shane was dropped off at a friend’s home at Mount Erin. Christopher then drove on to Tullamarine Airport and purchased a copy of the Brisbane Courier Mail. On his way home, he stopped at a friend’s home in Kananook.
A next door neighbour, Simon Lavallin spent the morning in his workshop at 60 Yuille Street between 9.00 a.m. and midday. He had a view of 62 Yuille Street and he could often hear sounds from inside the deceased’s house such as the squeaky wheel on the deceased’s laundry trolley. On this morning he did not hear or notice anything.
Christopher Alexander gave evidence that he arrived at 62 Yuille Street between midday and 1.00 p.m. He parked his car in the garage and walked into the house. He called out to the deceased. He observed the dog barking and upset at the side of the house.
Christopher found the deceased’s body slumped against the wall of the walk-in wardrobe in her bedroom. She was covered in blood and had many stab wounds to the chest.
Christopher reacted by punching a hole in the plaster of his bedroom wall. He went to Gary Hermsen’s nearby milk bar to call for help. Hermsen observed that Christopher was terribly upset. Hermsen went back to the house with Christopher who opened the door and walked in. The family dog prevented Hermsen from entering after Christopher and he was only able to enter after Christopher had locked the dog out of the house. When Hermsen saw the body he observed that there was a lot of dried blood around her chest and throat.
An ambulance officer, Gary Sanders, attended at 62 Yuille Street, at 12.58 p.m. When he touched the deceased’s skin he found that it was cold, pale and dry. There were no vital signs. The police attended soon afterwards.
At about 1.20 p.m., the petitioner attended at Wittner’s Shoe Store in Wells Street, Frankston, where he was served by Pamela Francis-Pester. The petitioner appeared scruffy and untidy and the witness described him as “a bit grubby”. He was wearing white shorts and a T-shirt. He had a large graze on his right knee and a Band-Aid over a cut on his left leg, which was still bleeding. Francis-Pester showed the petitioner several pairs of shoes, none of which fitted. After she made some inquiries, she advised the petitioner that there were no shoes available for his particular shoe size and the petitioner left the store.
At about 2.00 p.m., the petitioner arrived at 62 Yuille Street in his car, when police officers approached and spoke to him. Various police officers observed injuries to the petitioner’s legs which corresponded with those observed by Ms Francis-Pester.
On his arrival at the property the petitioner was spoken to by detective senior constable Darren O’Loughlin as he alighted from his car. When the petitioner was told that his wife was dead, he replied, “What happened?” and showed no emotion. The petitioner was told that the police were still trying to find out and he then asked where the children were. O’Loughlin observed that the petitioner’s injuries included a graze to his right hand and asked what happened to his hand. The petitioner stated that he had fallen over while shopping in Dandenong. As he said this he leant down and touched his thigh where the Band-Aid was. Detective senior constable Peter Tyler gave evidence that he was present when O’Loughlin spoke to the petitioner. He corroborated O’Loughlin’s evidence as to the content of the conversation.
Inside the boot of the petitioner’s vehicle, police found recently purchased food in plastic shopping bags.
The petitioner was examined at 6.20 p.m. by Dr Kenneth Ball, a police surgeon, who observed a recent abrasion of the right hand knuckle at the base of the right little finger, an abrasion to the left thumb, a two centimetre long abrasion to the right knee with a smaller abrasion below it and a fresh 4 ½ centimetre long wound immediately above the left knee. The wound to the left knee was covered by a Band-Aid, which was taken by Dr Ball for testing. He also observed that the petitioner was calm and appeared unwilling to be examined.
Later on in the evening, detective senior sergeant Paul Sheridan reduced to writing the petitioner’s account of what he had done that day and his explanation for his injuries. This statement was signed by the petitioner and witnessed by his solicitor on 20 February 1991 and forwarded to police. The contents of that statement are summarised as follows:
The petitioner left the deceased at home between 10.15 and 10.30 a.m. He drove his car to a bank in Dandenong to deposit a cheque for $1,200 which had been received as payment for the sale of his boat. He drove to Hastings in order to purchase fruit and vegetables and then drove to Frankston where he attended a bank automatic teller machine which was not operating. He also attended: a tobacconist; a shoe shop in Wells Street to purchase shoes; the French Bakehouse Shop where he purchased some French sticks; a local market in order to purchase more food; and a coffee shop in Thomson Street where he bought coffee and a sandwich. When he returned home he saw that the police were in attendance. The petitioner stated that his injuries were sustained while he was playing with his dog that morning. He had slipped while he was out in the backyard at approximately 10.00 a.m. He had washed the wound to the left knee and put a Band-Aid on it. Whilst in Dandenong he purchased a new packet of bandaids and put a new Band-Aid on the wound. The petitioner said that the injuries were caused when he fell onto the concrete near his garage.
Senior constables Francis Kealy, and Forensic Scientists Michael Raymond and Maxwell Jones each gave evidence of their search and examination of 62 Yuille Street. They said that the deceased’s body was slumped on the floor of a walk-in wardrobe, off the main bedroom. There was blood splattered inside the wardrobe and on clothing and blood droplets on the floor of the ensuite bathroom next to the walk-in wardrobe and on the bathroom door jamb. There were blood droplets on the tiled wall adjacent to the shower recess and inside the shower and two groups of blood droplets were found on the carpet on either side of the doorway between the main bedroom and the dining area.
The post mortem tests revealed that the deceased’s blood grouping was 2-1S. The petitioner’s blood grouping was 1S. Both of these blood groups are very common. All the samples found at 62 Yuille Street which could be tested were grouped as 2-1S, with the exception of Item 51. Item 51 was tested on 21 December 1990. It was determined that the blood group was 1S. A subsequent test on 30 January 1991 produced a result of 2-1F or 2-1S. The forensic scientists concluded that they had falsely assumed that the four droplets all came from a single event and a single person. Subsequent testing determined that the blood droplets comprising Item 51 came from at least two individuals.
Generally, the house was very clean and tidy. Drawers in the main bedroom and the sons’ bedroom had been pulled open but their contents had not been disturbed. A packet of Band-Aids was located in the bathroom cupboard. No blood stained cotton or used Band-Aids were found anywhere in the house.
A packet of Longbeach cigarettes, a mug containing black coffee, and an empty Marlboro cigarette packet were found on the dining table. The ashtray contained two Marlboro cigarette butts and one Longbeach cigarette butt. There were coffee stains on a place mat and the table cloth.
In the walk-in wardrobe of the main bedroom, the police found on the shelves a cloth bag containing cash and a coffee tin containing $40.15.
When the petitioner’s car was examined on 27 November 1990, the police found a blood stain on the driver’s seat. In the boot they found several packets of Marlboro cigarettes, fruit, vegetables and bread in plastic shopping bags. On the passenger’s side floor of the car they found an open packet of Handiplast Band-Aids and a brown paper bag bearing the label of a chemist shop. In the pocket of the driver’s side door the police located a top off a Handiplast packet and on the driver’s side floor they found a Handiplast wrapper.
The backyard of the Yuille Street property was searched on 26 and 27 November 1990. No sign of blood could be found. No broken glass was found. There was no sign of forced entry anywhere in the house. Apart from the cash found in the wardrobe there were also a camera, a mobile phone and a diamond in a black case which were visible and easy to find. On the dressing table in the main bedroom there was a gold chain with a crucifix. In the bedroom drawers and other places the police found various items of jewellery. The house also had an extensive range of electrical sound and video equipment, which had not been removed.
The police relinquished control of the Yuille Street residence on 27 November 1990 and the petitioner regained access. At that time, the blood found inside the bathroom had been removed for testing. The petitioner was not informed that blood had been found in the bathroom and he had not been admitted to the house until the police had finished.
The deceased’s father, Victor Pasitchnyj, was visited by the petitioner about four days after 26 November 1990. Two of the petitioner’s children, Shane and Michelle were with him. The petitioner showed Mr Pasitchnyj a scratch on his right hand and told Mr Pasitchnyj that he had a bruised leg. He explained that he had gone to do some business in Dandenong and had fallen on some steps. Mr Pasitchnyj was again visited by the petitioner in company with his two sons, Christopher and Shane on or about 15 January 1991. The petitioner talked about the police investigation and asked if the police had come to see him.
The deceased’s sister, Rita Pasitchnyj, gave evidence of continued contact with the petitioner in early 1991. On a Sunday in February 1991, the petitioner came to her shop at about lunch time. Her conversation included a discussion about the deceased’s rings having been set in Sydney previously. The petitioner told Ms Pasitchnyj that they were not to mention where the rings were reset. On another occasion in February 1991, the petitioner came to dinner at Ms Pasitchnyj’s home and he told her that he had found a pair of Fletcher Jones trousers which did not belong to him. He also said that whoever had murdered the deceased had taken a shower and cleaned up afterwards. He also stated that the knife would not be found.
The petitioner’s children gave evidence of being present when the abovementioned conversations took place. Their evidence differed from the accounts given by those witnesses.
On 18 February 1991, the petitioner telephoned detective senior constable Solomon and told him that he had found a pair of brown trousers inside the walk-in wardrobe which did not belong to him or to his sons. Solomon told him to bring them into the homicide squad office and the trousers were received by Solomon on 20 February 1991. When he searched the pockets he found a raffle ticket.
Solomon ascertained that the round trip which the petitioner had taken to Dandenong and Frankston on 26 November 1990 was approximately 80 kilometres. Solomon was able to confirm that the petitioner had deposited a cheque with the Commonwealth Bank in Dandenong but could not establish the time of the transaction. The purchase of petrol at Carrum Downs on the way to Frankston was confirmed by the production of a bankcard voucher signed by the petitioner and the chemist shop in Dandenong confirmed the sale of a box of Handiplast to the petitioner. He made inquiries concerning the operation of two Commonwealth Bank automatic teller machines in Frankston Those machines were in Wells Street, Frankston. One of the machines was closed between 10.16 a.m. and 10.50 a.m. and from 10.50 a.m. to 10.52 a.m. and then for 15 minutes after 3.06 p.m. on 26 November 1990. The second machine was closed from 10.54 a.m. to 11.22 a.m. and for 15 minutes after 3.15 p.m.
The brown trousers brought in by the petitioner were found to have blood stains. The trousers were compared with blow-ups of photographs of the clothing in the walk-in wardrobe. Those photographs depicted a pair of brown trousers hanging in the wardrobe at the time the deceased was found dead. Inquiries were made of the manufacturer concerning the rate of incidence of the particular type of seam discovered. The police concluded that the trousers were identical to those in the photographs.
On 6 April 1992, the petitioner was interviewed by homicide squad detectives in Sydney. He declined to answer any questions. He was then charged with the murder of the deceased.
Stephen Nielsen gave evidence of a conversation he had with the petitioner in Queensland in mid 1991 concerning the murder charge. Peter Carr also gave evidence of being present. Nielsen stated that the petitioner told him that the police could not prove anything because they had left their forensic evidence too late. Carr was able to recollect the petitioner saying that the police did not have anything and would not find anything. Both witnesses stated that at no time did the petitioner say whether or not he had been rightly charged or whether the allegation of murder was correct or not.
The petitioner’s sister, Christine Peterson stated that she moved into the petitioner’s home on 1 January 1991. She stated that during her stay at his home she was cleaning up around the backyard and noticed a considerable amount of broken glass. Most of it was from broken beer bottles. She gathered up the glass and filled about a quarter of a medium sized kitchen garbage bag.
Christopher Alexander gave evidence that he received a payout from an insurance company under one of the policies taken out on the deceased’s life.
Defence case
Counsel for the petitioner submitted that there was no case to answer. The trial judge rejected the submission.
The petitioner stood mute and did not call any evidence.
The petition and outline of argument
The petition of mercy was initially based on the contention that evidence discovered since the petitioner’s trial indicated that members of the police force tampered with and withheld evidence relevant to the crime. The petition also asserted that the Crown failed to disclose evidence which was vital to the petitioner’s defence. That case changed significantly during the course of the hearing.
It was alleged in the petition that a miscarriage of justice had occurred because new evidence that had emerged since the petitioner’s trial would have led a reasonable jury to entertain a doubt as to his guilt. Alternatively fresh evidence had come to light which would not have been available to defence counsel acting with reasonable diligence. The evidence in question related to:
· The presence of a packet of Benson & Hedges cigarette packet on the dining room table in the Yuille St house which was said to have been there when the police entered the premises; and
· the existence of a police attendance log which was said to show that detective senior constable Tyler, could not have been present when a conversation took place between detective senior constable O’Loughlin and the petitioner.
The Benson & Hedges cigarette packet
It was submitted that when the police first entered the crime scene there was a Benson & Hedges Extra Mild packet of cigarettes on the table with a cellophane wrapper bearing traces of blood. The prosecution case was that only the deceased and the defendant were present in the house immediately before the murder occurred. The appearance of the dining room table, which had on it a single coffee cup on an angle, two place mats in front of seats and another six place mats in the centre, stains on place mats indicating spilt coffee, a Marlboro soft pack, and a packet of Longbeach cigarettes, provided circumstantial support for this case. It was common ground that the petitioner smoked Marlboro cigarettes and the deceased smoked Longbeach cigarettes.
The petition asserted that the police had tampered with the evidence by removing the Benson & Hedges Extra Mild packet from the dining room table and that “the bloodied cellophane which covered this packet of cigarettes was made to seem by investigators as if it had come from… the Marlboro soft packet.”
Photographs of the dining room table and a video which showed only the Marlboro and the Longbeach cigarette packets were tendered in the course of the trial. The petitioner asserted that earlier photographs of the scene would have shown the Benson & Hedges packet on the table.
It was asserted in the outline of the petitioner’s argument:
“Given the issue that was presented to the jury for determination, this evidence of tampering suggests that investigating police were prepared to manipulate the crime scene in a manner that was calculated to (a) remove evidence consistent with a potential defence, and (b) falsely implicate the petitioner in a positive sense. There is, therefore, strong evidence of a breach of the obligation to correctly record the crime scene.
…
Police might have possessed a clear motive to tamper with the evidence in the manner described if they thought that the presence of a packet of Benson & Hedges Extra Mild cigarettes with blood on its covering cellophane was part of a false trail of evidence left by the petitioner to suggest that the killing was committed by an intruder. Investigative police did, at some stage, conclude that the petitioner had left such a trail .”
Circumstantial support for the assertion that the police had removed the Benson & Hedges packet, which would have been photographed when the police photographers initially entered the premises, was said to be provided by a diagram of a cellophane wrapper, which the petitioner said came from the Benson & Hedges packet. The petitioner also relied upon “the curious responses made by the police to the petitioner’s frequent requests that he be provided with all undisclosed photographs and proof negatives” relating to the murder. The petitioner asserted that 89 photographs taken by the police photographer were missing[2]. Destruction of exhibits in 1998, after an expert retained by the Alexander family had sought access to them for forensic examination, was said to provide further circumstantial support for the assertion that the police had tampered with the evidence.
[2]The figure of 89 photographs takes account of 21 photographs which it was conceded were lost or destroyed, and the difference between the 242 photographs which were said to exist in 1996 (following an FOI query by the petitioner) and the 174 photographs which were said to exist in response to another FOI request in 2002.
A miscarriage of justice was said to have occurred either because the police had concealed the existence of the Benson & Hedges packet with blood stains on its cellophane or because the prosecution had not disclosed the existence of notes made by Sergeant Casey, the fingerprint examiner. It was suggested that the notes would have revealed that he had found a Benson & Hedges packet on the dining room table. Although counsel for the petitioner had been handed the notes at the committal he had not looked at the second page, which referred to the Benson & Hedges packet. Sergeant Casey had not mentioned the packet in his oral evidence at the committal. The petitioner asserted that this had deprived his counsel of the opportunity to draw the significance of the packet to the jury’s attention.
The police attendance log
As we have recounted, detective senior constable O’Loughlin gave evidence that the petitioner told him that he injured himself when he fell over while shopping in Dandenong. Later he told other policemen that his injuries were caused by a fall in his backyard while he was playing with his dog. Detective senior constable Tyler corroborated O’Loughlin’s evidence.
The prosecution case was that the petitioner had changed his story about how he was injured in order to explain the presence of his blood in the house. Thus the changed story about how he was injured was used as evidence of consciousness of guilt. The petitioner submitted that the police attendance log did not disclose the presence of Tyler at the scene at any stage and that this cast doubt upon Tyler’s corroboration of detective O’Loughlin’s conversation with the petitioner.
As with the Benson & Hedges packet, it was alleged that the police had given false evidence about Tyler’s presence during the petitioner’s conversation with O’Loughlin. It was also submitted that the prosecution had failed to disclose this evidence, which was vital to the petitioner’s defence. The attendance log was not included in the committal brief of evidence nor in the depositional material placed before the trial judge. Again it was submitted that the unavailability of this evidence at the petitioner’s trial had led to a miscarriage of justice.
The Evolution of the Petitioner’s Case
During the hearing parts of the foreshadowed argument on behalf of the petitioner were entirely abandoned and others were substantially recast.
Police recording of the crime scene
At the beginning of the hearing and at various points throughout it counsel for the petitioner disavowed allegations of a police conspiracy to conceal the existence of the third packet. Any allegation of tampering with or concealment or deliberate non-disclosure of evidence was withdrawn. Nevertheless it was maintained that evidence which was vital to the petitioner’s defence had not been made available by the police or disclosed to the defence.
Initially counsel relied on non-production of the police video and the absence of photographs and negatives as circumstantial support for the proposition that crucial evidence was withheld at the petitioner’s trial. The Crown arranged for the petitioner’s counsel to have access to the police video of the crime scene, to crime scene photographs and proofs of negatives. Senior constable Stephens, the police photographer who took photographs of the crime scene, swore an affidavit and gave oral evidence about normal photographic procedures at a crime scene, and how decisions were made as to which negatives were to be developed. Fourteen of the fifteen films which he had taken remained in existence.
Senior constable Stephens gave evidence that he had searched unsuccessfully for other negatives and photographs. He testified that it was normal police practice to take several photographs of a particular object or scene and to discard negatives which were duplicates or which were not clear. This practice explained why some negatives of the scene had not been kept.
The negatives were cut into strips for storage purposes. Stephens was able to sort the cut strips of negatives into the sequence in which they were taken within a particular film, but could not ascertain the chronological order in which the different films were taken.
It was submitted on behalf of the petitioner that a photograph of the kitchen shown to the jury was taken after removal of the third cigarette packet from the dining room table.
This was said to be supported by visible differences between the photograph seen by the jury and another photograph of the same scene which the petitioner had obtained as a result of an FOI request. It was suggested that disparities between the photographs including different levels of light outside the window and the appearance of the display panel on a video recorder, showed that these photographs were taken at different times.
Stephens gave evidence that “these photographs were taken consecutively from the same position.” The differences between the appearances of the photographs of the same scene was said to be the result of one having been taken with a direct flash and the other having been taken on a time exposure using available light. He testified that “Both were taken during daylight hours.”
As a result of Stephen’s evidence and viewing of the video, negatives and photographs, counsel for the petitioner abandoned the contention that the third cigarette packet was on the dining room table at the time the police entered the crime scene and that this had been concealed by the police. It was replaced by the proposition that the police had found a Benson & Hedges cigarette packet elsewhere in the house “perhaps under a couch” and an unknown person had later placed it on the dining room table, where it had been found by Sergeant Casey, the fingerprint examiner.
The significance of the police log
Senior constable Chrisp’s evidence was that the crime scene log covered people who entered the crime scene “that being from the front gate of the premises and including any part of the house occupied by the petitioner and the deceased. Police crime scene tape had been placed along the fence line at the front and left side of the property and anything within this area was part of the crime scene… No person was permitted to enter the crime scene without the knowledge and consent of the investigating CIB members.”
The Crown asserted that the reason why detective senior constable Tyler was not recorded in the log was that he did not enter the crime scene, but remained at the intersection of Yuille St and Jasper Terrace. It was here that the conversation was said to have occurred between the petitioner and O’Loughlin.
Counsel for the petitioner abandoned the submission that the failure to disclose the police log had led to a miscarriage of justice.
The Benson & Hedges Cigarette Packet
By the second day of the hearing of the appeal, the fresh or new evidence said to found the petition was reduced to evidence that a packet of cigarettes of a brand other than the brands smoked by the deceased and the petitioner and a cellophane wrapper from a cigarette packet upon which there was a speck of blood had been found in the house in which the deceased had been killed.
Affidavits by each of the persons who attended the crime scene were filed in this proceeding: many of the deponents were cross-examination by counsel on behalf of the petitioner.
At about midnight on 26 November 1990, some 11 hours after the crime scene was isolated, David Casey, a policeman who had attended at the scene of the crime to take fingerprints, removed from the dining room table three cigarette packets. According to his contemporaneous notes, the packets were respectively of Marlboro, Longbeach and Benson & Hedges cigarettes. Mr Casey partially removed the cellophane wrappers of the packets in order to examine the wrappers unimpeded by the background colours of the cigarette packets. Mr Casey noticed what he thought was a minute speck of blood on the Marlboro packet. In an affidavit Casey deposed that when he partially removed the cellophane wrappers and studied them through a magnifying glass:
“It was only then that I noticed what I thought to be a minute speck of blood on the Marlboro packet. I did not observe any similar blood specks on the other two packets nor were any identifiable fingerprints developed. I specifically remember that the Marlboro packet was in its cellophane wrapper because of the blood speck.”
Mr Casey handed the Marlboro packet to another policeman, Francis Kealy, a crime scene examiner, and pointed out what he believed to be the blood speck.
According to notes made by Mr Kealy, he received the empty Marlboro packet with what appeared to be spots of blood on the wrapper at 5.35 p.m. on 27 November 1990. He delivered the Marlboro packet to the liaison officer at the State Forensic Science Centre at McLeod. Maxwell Jones, a forensic biologist at the State Forensic Science Centre, took possession of a paper bag labelled Item 26, containing an empty packet of Marlboro cigarettes and an empty cellophane wrapper.
The evidence was said to found the reasonable hypothesis that the murder was committed by an unknown person, who entered the house after the petitioner left.
The house at Yuille Street was cordoned off by the police as a crime scene soon after 1.00 p.m. on 26 November 1990. It was then photographed and a video film was made showing the interior of the house. Counsel for the petitioner accepted that there were then only two cigarette packets on the dining table, one a packet of Marlboro cigarettes, the other a packet of Longbeach cigarettes. It was common ground that the deceased smoked Longbeach cigarettes and that the petitioner smoked Marlboro cigarettes. Not only was the third cigarette packet not on the dining table when the police arrived at the house; it had not been discovered by the policeman who carefully examined the house and noted its contents immediately after the crime scene was cordoned off. Counsel for the petitioner speculated that it may have been found later by an unknown person and placed on the table. Yet, in the course of cross-examination by counsel for the petitioner, the police officer who conducted the investigation into the death of the deceased said:
“I know for a fact that there was never a Benson & Hedges cigarette packet at the crime scene when I arrived or any of the homicide squad members arrived or when the first police arrived at the scene and at the time it was examined during the critical examination … the photographing, video taping and searching.”
It would appear that the petitioner could have produced the additional evidence at trial. Mr Casey made a note referring to the packet being found on the dining room table and his notes were given to counsel for the petitioner at the committal hearing in the course of his cross-examination of Casey. The same counsel appeared for the petitioner at trial. For present purposes we are prepared to assume that counsel for the petitioner failed either to notice the reference to the packet of Benson & Hedges cigarettes or to appreciate the forensic use he could make of it. We would not conclude that the petitioner and his advisors made a deliberate choice not to call the evidence, for it does not appear that any advantage was to be gained thereby.[3] Nevertheless, in our opinion the failure to elicit evidence of the presence of the Benson & Hedges packet did not bring about a miscarriage of justice.
[3]See Re. Patten [1974] V.R. 201 at 214 per Smith, Tate and Adam, JJ.
The presence of a packet of Benson & Hedges cigarettes on the dining room table, discovered in the circumstances we have related, is of slight importance. The petitioner, however, sought to prove that the packet was present when and at the place the murder occurred because the cellophane wrapper containing the packet carried a speck of blood.
The Benson & Hedges cigarette packet may have been placed on the table by one of the persons attending the crime scene. An investigation of the matters raised by the petition revealed that the photographer at the crime scene smoked Benson & Hedges cigarettes at that time. It must be borne in mind, however, that those who examine and analyse crime scenes are trained not to pollute crime scenes by introducing any objects to them. Nevertheless, the packet was not on the table when the police arrived and was not found when the house was first examined. The connection between the packet of Benson & Hedges cigarettes and the commission of the crime depends upon the conclusion that the cellophane wrapper examined by Mr Jones was the wrapper from the Benson & Hedges cigarette packet.
Mr Jones made a freehand sketch of the cellophane wrapper on the paper bag labelled Item 26 and wrote “~ 1:1” alongside it. The height of the wrapper drawn by Mr Jones varied from 63 mm at one point to 60 mm at another point. Its width varied between 52 mm and 53 mm. The distance between the base of the cellophane wrapper on a packet of Benson & Hedges cigarettes and the bottom edge of the tear strip in the cellophane wrapper was 60 mm. The width of the packet was 55 mm. The distance between the base of the cellophane wrapper containing a packet of Marlboro cigarettes and the bottom edge of the tear strip in the cellophane wrapper was between 80 and 83 mm. The width of the packet was 53 mm. The petitioner’s case depended upon the accuracy of Mr Jones’s drawing.
Mr Jones gave evidence before this Court, evidence which we accept. He said that he did not intend to produce a drawing that was precisely to scale, but rather to draw a packet approximating its size for the purpose of identifying the part of the wrapper on which the speck of blood appeared. He said the drawing was “a rough approximation” and argued with counsel that the “squiggly line” he drew denoted approximation or similarity. He said:
“[T]he intention was to put the [blood] stain in context of the plastic … - where it was on the packet … The exact size of the packet … was sort of irrelevant …”
He rejected a suggestion by counsel that he had placed the wrapper on a sheet of paper and traced its outline, a contention which was an important plank in the petitioner’s case.
Conclusion
There was a substantial body of evidence implicating the petitioner in the murder of his wife. In the light of that evidence we consider that the appearance of a cigarette packet apparently unrelated to the petitioner and the deceased some eleven hours after the police first attended at the house would not have caused the jury to entertain a reasonable doubt as to the guilt of the petitioner. The evidence of Casey, Jones and Kealy rules out the possibility that a speck of blood fell on cellophane wrapper containing the Benson & Hedges cigarette packet. In our opinion there is no significant possibility that the jury, acting reasonably, would have acquitted the petitioner had the fresh evidence been before it at the trial.[4]
[4]Gallagher v. R. (1986) 160 C.L.R. 392 at 402 per Mason and Deane, JJ., at 399 per Gibbs, C.J. and at 421 per Dawson, J.; Mickleberg v. R. (1989) 167 C.L.R. 259 at 273 per Mason, C.J.
We would dismiss the appeal constituted by the reference.
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