R v Baden-Clay - [2016] HCATrans 166

[2016] HCATrans 166

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B33 of 2016

B e t w e e n -
THE QUEEN
Appellant
and
GERARD ROBERT BADEN-CLAY
Respondent

FRENCH CJ
KIEFEL J
BELL J
KEANE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 26 JULY 2016, AT 10.16 AM

MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friends, MR D.C. BOYLE and MS S.J. HEDGE, for the appellant. My learned pupil, MS P. KINCHINA, is attending with us. (instructed by the Director of Public Prosecutions (Qld))

MR M.J. BYRNE, QC: May the Court please, I appear for the respondent, along with my friend, MR M.J. COPLEY, QC. (instructed by Peter Shields Lawyers)

FRENCH CJ: Yes, Mr Sofronoff.

MR SOFRONOFF: Could I invite your Honours to go to volume 4 of the appeal record, to the reasons of the Court of Appeal, relevantly at page 1812.

FRENCH CJ: Paragraph [42]?

MR SOFRONOFF: Yes, your Honour. In our submission, the Court of Appeal made three errors in its reasoning. The first was that the court concluded that there was no evidence of motive. Having concluded that and put that evidence to one side, the court then concluded that the evidence of post‑offence conduct on the part of the respondent was neutral as to the issue of intent. Thirdly, the court then led itself to the conclusion that the evidence threw up a reasonable factual hypothesis consistent with innocence of murder but guilt of manslaughter.

The passages in which your Honours will see those matters are, firstly, at page 1812 in paragraph [42]. In the last sentence of that paragraph, just below line 40 – I will use the line references of the appeal book record – their Honours said:

The evidence of financial stress and the extra‑marital affair suggested a context of strain between the couple which might well have culminated in a confrontation; but it did not provide a motive or point to murder rather than manslaughter.

At page 1813, at line 10, the first sentence of paragraph [44]:

Putting aside the idea that the pressures on the appellant provided a motive in any conventional sense of the word, the respondent’s argument on intent rested on the consciousness of guilt evidence.

We read the expression “Putting aside the idea” as a rejection of that idea. At the same page, at line 50, the second sentence in the fourth line:

But in the present case there was no evidence of motive in the sense of a reason to kill, and the appellant had never intimated any intention of harming his wife.

As to the post‑offence conduct, your Honours, at page 1814, at line 10, their Honours cited a passage from the decision of the Victorian Court of Appeal in Ciantar concerning evidence of post‑offence conduct which can be described as “neutral” on the issue of guilt, and then in the next paragraph their Honours said:

Thus, while findings that the appellant lied about the cause of his facial injuries and had endeavoured to conceal his wife’s body should not be separated out from the other evidence in considering their effect, the difficulty is that, viewed in that way, the post‑offence conduct evidence nonetheless remained neutral on the issue of intent.

The third error that we respectfully submit can be seen concerns the identification of what was said to be a reasonable factual hypothesis consistent with innocence of murder. At page 1811, at line 40, the first sentence of paragraph [39]:

A reasonably open hypothesis was that the appellant’s wife had attacked him, scratching his face.

At page 1814, line 25, the fifth line of paragraph [48]:

To put it another way, there remained in this case a reasonable hypothesis consistent with innocence of murder: that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm –

Then their Honours go on to deal with the other post‑offence conduct.

FRENCH CJ: The prosecution eschewed a premeditation case. Is that just a matter of the timing of the asserted intent?

MR SOFRONOFF: Yes, it is; premeditated in the sense of a plan, as opposed to killing on the incident but with an intention to kill or cause grievous bodily harm.

As to the issue of motive, your Honours, evidence was led, as your Honours know, about the respondent’s love affair with another woman and his longing to be with her, and evidence was led about the respondent’s financial position, which was one in which he could not afford a divorce.

I will come to the evidence shortly, but could I deal with the leading authority, which is still, in our submission, Plomp v The Queen (1963) 110 CLR 235. Your Honours will no doubt recall that Plomp, at the time he murdered his wife, was married with two children. On a February evening in 1961 he and his wife and one of the children were at Southport where he and his wife went into the surf. Mrs Plomp drowned. Plomp said that there had been an undertow and a wave had then sucked his wife under. He had struggled to save her but had failed. That was the only direct evidence of what had happened.

Before this event Plomp had begun an affair with another woman. A few days before the killing Plomp had asked that woman to marry him. He had said to her that he wanted to live with her and for her to look after his children. After the death, Plomp lied to the police about the affair and he asked the woman to lie to the police also. Chief Justice Dixon said that the starting point was, of course, that the deceased was a good swimmer, unlikely to drown in the way described by Plomp. At page 242 – if your Honours would go there – at the foot of the page, the third last line, his Honour said:

I think that if the whole of the evidence is read and what the accused said and did both before and after his wife’s drowning is considered with all the circumstances of her drowning a reasonably strong circumstantial case is made against him, but I cannot think that this is so if you omitted from it all the detailed circumstances of his dealings with the other woman.

Towards the foot of page 243, just above the last paragraph beginning on that page:

But the class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability, judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.”

That is to say, evidence of the affair with the other woman and his desire to be with her is something that rendered more likely an intentional killing. Justice Menzies, at page 248, at about point 7 of the page:

Such evidence – as will appear in greater detail when I come to the third question – included that there were inducements for his killing his wife; that immediately before her death he spoke of her as dead and introduced another woman as her successor, so, it could be taken, manifesting a disposition to kill her; that immediately after her death he sought to take advantage of her death by attempting to marry the other woman; that he lied about his relationship with the other woman and sought to induce her to do the same; and that he gave various accounts of what happened when the deceased was drowned. It hardly needs to be stated that to prove motive for a crime and no more could never be sufficient evidence upon which to convict anyone and it is to this that it seems to me some of the authorities cited are really directed, but, in a case like this, proof of such matters as I have just indicated does bear upon the probability that the applicant killed the deceased.

At the foot of page 249, your Honours, quoting from the reasons of Lord Atkinson in an English case R v Ball, Justice Menzies quoted:

“Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased’s life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his ‘malice aforethought’, inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not”.

Your Honours, we have cited in our outline a number of cases which are all authority for the proposition that evidence of motive, including evidence of a man’s longing to be with a woman other than his wife, is evidence from which intent to murder could be inferred.

Could I summarise the evidence in this case relevant to that proposition. The affair of the respondent began in 2008 with an employee of the real estate agency that he was conducting. They met for sex about four times a week. In September 2011, his wife learned of it and his lover then immediately left his employ. The affair began again over the Christmas holidays of 2011, in the same year. It began at the respondent’s instigation.

Could I ask your Honours to go to volume 1 of the record where your Honours will see the evidence‑in‑chief of Ms McHugh, beginning at page 310 at line 20. They met over the Christmas break of 2011 at his instigation at a cafe and at line 20 she described what happened:

We met at the coffee shop. I was really very happy to see him. He explained to me, first of all, that he still – he wasn’t – he wasn’t ready to leave his wife, but he was going to leave his wife, and that he wanted me to know that.

Question:

Did he say anything about his relationship with you?---That he loved me and that one day he did want to come to me unconditionally and be out of the marriage.
Did he actually use the term “unconditionally”?---Yes.

At page 311, at the top of the page:

Now, how ‑ how often were you in contact with him, either meeting in person, talking or emailing during the week?---Not as – nearly as regularly, but still enough to – we’d try every day. It wasn’t always possible.
Right. If we’re thinking about December ’11 through to April 2012, almost on a daily basis during that time, when it was possible?

She appears to answer in the affirmative:

So it wasn’t every day?---Not on weekends.

At line 30 she explained it was too difficult, because the wife had found out, for them to meet physically. Could I ask your Honours to go to page 311, at the foot of the page, at line 35:

So what was your response to him when he said he didn’t want to – or he couldn’t see you any more?---I was – I was surprised. I – I questioned whether he was having doubts about being together, and I asked him – I said have you – if you need to be with your wife, if that’s the decision that you’re making, make it. Say it.
How did he respond to that ‑ ‑ ‑?---No.
‑ ‑ ‑ when you challenged him?---No.
What did he say to you?---I will be leaving my wife. I am leaving my wife.

Then over the page, line 5:

Was there any timeframe put on when you might next be able to see each other?---I – I pressed for – I – in that same context of I need to know what’s happening one way or the other. I need to know when this is going – when it’s going to change, when it’s going to – and he said I will – I will be out of my marriage by 1 July.

There were emails between the parties using an email account in a false name. If your Honours would go to volume 4, at page 1446.

FRENCH CJ: I am sorry, what was the date of that conversation that you have just recounted to us?

MR SOFRONOFF: The last one, I think, was April, your Honour. In volume 4, at page 1446, your Honours will see the first of a series of emails that were tendered by the prosecution. This is Ms McHugh’s email to him. Relevantly, the tenor of it is her communication of her distress at having to wait for him to make up his mind. If your Honours go over the page, on 27 March she wrote to inform him that she was already looking at rental properties that they could rent together and putting a proposal to him about how he and she could live together and what would happen in terms of the care of his children. On 3 April, the next page, at 1450, is an important email from him:

I have given you a commitment and I intend to stick to it – I will be separated by 1 July –

And that must have been a reference to the commitment that he made during the conversation. A few days later, a week later, on 11 April – this is now a week before he killed his wife:

This is agony for me too. I love you. I’m sorry you hung up on me. It sounded like you were getting very angry. I love you GG. Leave things to me now. I love you. GM.

He gave evidence – or she gave evidence that “GG” meant “gorgeous girl” and “GM” meant “gorgeous man”, the terms of endearment they used towards each other.

By then, as the respondent said in evidence, he and his wife had not had sex together for years. And it is clear, if one takes those emails at face value and the evidence of Ms McHugh at face value, as the jury could do, that he wanted to be with her but felt torn about the need – the condition that he would have to separate from his wife. He was, plainly, a man, on the evidence, who was charged with sexual urges and who had had a lot of affairs with other women but, in the case of this woman, he had pronounced and affirmed his love for her verbally and in writing, as late as days before he killed his wife. And he had made a promise to end his marriage, a promise that he described as unconditional and he had fixed a firm deadline for consummating that promise.

FRENCH CJ: Given the lead‑up and the prior existence of the long‑term financial difficulties, and the prosecution having eschewed a premeditation scenario, what was the prosecution case as to when the relevant intention was formed?

MR SOFRONOFF: On the night of the killing. On that night there was an altercation between them and there was an additional factor leading up to that night – two additional factors, to which I will come. One was the phone call Ms McHugh made to him that afternoon ‑ ‑ ‑

FRENCH CJ: About the conference?

MR SOFRONOFF: ‑ ‑ ‑ predicting a possible meeting between her and his wife. And the second, of course, was the ritual that the psychologist, the counsellor, had asked them to undergo that I will describe in a moment. So that led, on the Crown’s case, to the interaction during which he formed a relevant intent and killed her.

It is clear, in our submission, that there was evidence from which the jury could conclude that the respondent had found living with his wife intolerable and unendurable. They had attended marriage counselling – and could I give your Honours the reference, without taking you to it, volume 1, at 378. The counsellor had explained to him in private that his wife needed to know the truth about the affair. I will remind your Honours that the wife learned of the affair – Allison learnt of the affair in September because somebody informed her of it and there was great distress. The counsellor, in those circumstances, explained to Mr Baden‑Clay during a private session that his wife needed to know the truth and needed to feel that she commanded the facts concerning it if she was going to come to terms with it. That meant that he, the respondent, had to submit to her questions and answer them candidly.

We can see some of the questions that she prepared to ask him and did ask him in volume 4, at page 1737. She kept a journal, which was tendered. The evidence which emerged from the cross‑examinations of the respondent – and I will give your Honours the references, volume 3 at 1004 and following – was that the questions that she wrote in her journal and crossed out were questions that she actually asked him. Questions that she wrote in her journal in the same places but which were not crossed out were, he said, questions that she had not asked him. We can see from the terms of the questions on page 1737 that had been crossed out that they were extremely intrusive in the sense that she wanted to know detailed truth about what he and Ms McHugh had done:

Movies ‑ drive together
            - how many times?
            - what see
            - dinner?
            - scared of being seen
            - kiss/hug?

And so on. The jury, in our submission, could infer that, having to undergo such a questioning, even if the affair had ended would have been a very painful matter for both of them, but speaking from his point of view, from his point of view. But to have to undergo these questions in relation to an affair that she believed had ended but that he knew had not ended and requiring him to answer, in essence, on a false pretext rendered the process, as he described it – rendered the circumstances, I should say, as he described them, as “agony.”

His lover, on the one hand, was demanding unconditional love and presence and his wife, falsely believing that his affair was over, was working with him but, from his point of view, upon him in a way that required him solemnly to lie to her and to lie by not disclosing the truth of the continuing affair. And, in our respectful submission, that is evidence, on the authority of Plomp and the other cases, which is capable of being regarded by the jury as evidence of motive to kill and then as going to proof of intention, if the jury chose to see it that way.

As to financial distress, it is clear that the position of this family was desperate. We give your Honours the references in the outline but, in summary, the respondent owed three close friends loan amounts of $90,000 each, plus interest. In early March 2012, that is the month before he killed his wife, he sought a loan of $300,000 from an acquaintance. This was sought through the agency of another acquaintance, who gave evidence, and said – the respondent denied this, but her evidence was that the respondent was, in asking for the loan, distressed and said that if he did not get it, then he would go broke or bankrupt and the loan was refused.

Under an agreement for the purchase of real estate agency rent rolls he owed two vendors $180,000 and $90,000 respectively. This was payable in June of that year, although there was a possibility of an extension of 90 days. At the relevant time he was unable to meet interest payments. On the other hand, the net assets of him and his wife was just under $75,000. And he admitted, in evidence, that a separation from his wife would have had a significant impact on his business, obviously, but also because she was now working on it and not being paid. He accepted that if he had separated from his wife lawfully, that would potentially cause the business to go to the wall.

Your Honours, in our outline we have cited a dictum from Chief Justice Griffith in Mutual Life Insurance v Moss. Your Honours need not go to it. It is a short passage that I will read. That case is reported in (1904) 4 CLR 311, at 317. His Honour said:

When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form such an intention. On charges of murder sometimes the question is whether or not the accused caused the death, and sometimes whether, if he caused it, he did so intentionally or accidentally. The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; and in cases depending on circumstantial evidence the question of probability may be most important.

Chief Justice Dixon’s dictum that I read earlier of course echoes those last two propositions.

Now, the defence understood at the trial, as in our submission everybody understood at the trial, that the prosecution was leading all of this evidence as evidence of motive. Could I ask your Honours to go to volume 3? At page 1166, at line 40, in my learned friend, Mr Byrne’s, closing address to the jury, he said:

The Crown have put up a motive. Now, they don’t have to prove motive. But they put up on day 1 that not only did he murder her but, quote:
He wanted to leave his wife and be with Toni McHugh.

At page 1173, just above line 20:

Why would Gerard Baden‑Clay kill his wife? The prosecution again on day 1 gave you two things. He wanted to leave his wife and be with Toni McHugh. Well, we’ve dealt with that on the evidence, not on the sensationalism. And he was under financial pressure.

Then if we skip three lines, the rhetorical question is then put:

is money of this sort, financial pressure, is that a reasonable motive for killing, murdering, your wife of 14 years? Money.

Could I give your Honours also a further reference ‑ ‑ ‑

FRENCH CJ: This is designed to show what? That the defence engaged on the topic of motive going to intention?

MR SOFRONOFF: Yes. Could I give your Honours the references, without taking you to them, of similar passages: at page 1186, 1217, and in volume 2, at page 807, and to the same effect the prosecutor, at pages 1261, 1270, 1272, 1276, 1280, 1289 and 1290.

FRENCH CJ: Does that go to the further proposition that it was common ground that motive was relevant to intention?

MR SOFRONOFF: Yes. If your Honours would go to volume 4, the reasons of the Court of Appeal, at page 1813, it is for those reasons that, in our submission, the sentence beginning on the fourth line of paragraph [46] is, in our respectful submission, wrong. But in the present case there was no evidence of motive in the sense of a reason to kill. There is another error, in our respectful submission, in this connection, in paragraph [38], at page 1811. In the middle of the paragraph their Honours said:

Nothing had changed in the appellant’s marriage to make him take the step of intentionally killing his wife.

But a great deal had changed. The financial pressure was building, for the reasons I have shown, and Ms McHugh had confronted him and he had made the commitment that your Honours have heard about.

GORDON J: Do you challenge the next sentence that follows that one?

MR SOFRONOFF: We do, your Honour, because in April the position had changed from one where he thought he would get a loan or two to a position where he was being refused loans.

KIEFEL J: Was reliance placed upon the policy of insurance by the prosecution?

MR SOFRONOFF: No, no.

KIEFEL J: That did not feature?

MR SOFRONOFF: No. The evidence which, I think, the prosecution had accepted was that the inquiry that was later made about the policy was at the instigation of the respondent’s father. So no reliance was placed upon the benefit that would flow from ‑ ‑ ‑

KIEFEL J: Reliance would have been inconsistent with the Crown conceding no premeditation.

MR SOFRONOFF: That is right. That is right, yes. There was also this change on the night that he killed his wife that that afternoon, in evidence to which I will come, he and Ms McHugh had had a telephone conversation in the afternoon during which it had emerged that both she and Allison would be attending the same professional seminar and that there was a risk that they could meet and, in Ms McHugh’s opinion, if not his, that was intolerable to her, and as she put it, as your Honours will see in due course, in her view intolerable for Allison as well that each of them should be put in that position, and she demanded that he tell his wife. So a number of things had changed by that night from the position that had obtained, say, in December 2011.

So, in our respectful submission, that error then affected the court’s reasoning in other ways. We can see this in the first sentence at paragraph [46] when their Honours came to consider post‑offence conduct. The reasons say:

In some cases, post‑offence conduct may take its complexion from other circumstances: evidence of motive –

of which there is none in this case:

forensic evidence suggesting a bloody or protracted killing –

One cannot call this a bloody killing, but there was evidence of blood in the rear section of an almost new Captiva motorcar used by ‑ ‑ ‑

FRENCH CJ: You say almost new because the blood could not be aged?

MR SOFRONOFF: No, I meant the car was almost new.

FRENCH CJ: Yes, I know that, but I think you have to make that point ‑ ‑ ‑

MR SOFRONOFF: But the blood was hers, yes. The car was almost new. The blood could not be aged, but it was her blood and there was no explanation for it. Their Honours go on:

statements of intent by the accused –

There were not any here:

or, in the case of concealment of a body –

There was that here:

that there are injuries to the victim which would point to a deliberate killing.

There was no evidence of that here, but the medical evidence was that she had not died from natural causes. The consequence of discarding treating the evidence that I have related as not going to motive and therefore of not going to intent is that the court’s reasoning was reasoning which involved a piecemeal evaluation of the evidence, a separation of each piece and a criticism of each piece as not capable on its own of proving intent.

One powerful piece of evidence, when considered in the light of the whole of the evidence in this circumstantial case, was the respondent’s lies to police about the continuation of the affair, as well as the evidence of its sequelae. He hid two things. From the first, he hid the continuation of the affair from police and this, in our submission, is as significant as the affair itself.

Could I ask your Honours to go to volume 4? He had a conversation with police who appeared at his house at his request on the morning after the killing and at page 1525, in the middle of the page just below line 20, after denying that he and his wife were estranged, below line 20, Senior Sergeant Curtis asked:

Alright. So there’s no ah i‑, indication that the marriage is going to break up or?
BADEN-CLAY: Um I hope not. [INDISTINCT]—
SSGT CURTIS: She wouldn’t have?
BADEN-CLAY: There is some other information but—

Then he asked the policeman to ask members of his own family to leave the room and they did. At page 1526, after his relatives had left the room, below line 10:

SSGT CURTIS: Okay. So what’s been happening, Gerard?
BADEN-CLAY: I had an affair I‑, um that ended last year.
SSGT CURTIS: Alright.
BADEN-CLAY: Um and obviously that has put a, a strain on the relationship.
SSGT CURTIS: Mmhmm. Okay.
BADEN-CLAY: Um but we’ve been working through it and—
SSGT CURTIS: Mmhmm.
BADEN-CLAY: Um, and in fact we went and saw a counsellor on Monday -

and he identified the counsellor. At the foot of the page, the second last – the last question:

SSGT CURTIS: Was there anything that came out of that um, that’s Kenmore, isn’t it –

Where the counsellor was:

was there anything that came out of that session that would have upset your wife?
BADEN-CLAY: No. Overall it was pretty positive thing, I think. She had seen her previously um in Spring Hill.

Now, if your Honours would go then to page 1534, recalling that on the night of the 18th and the night of the 19th Allison had put questions to him, at the top of page 1534:

SSGT CURTIS: Alright. Well is there any incident or anything that happened last night that could have set her off?

He is speaking here in the context – Sergeant Curtis is asking what set her off in the sense of make her wander off –

BADEN-CLAY: Ah I don’t think so. I mean the, the, the, the counsellor on Monday suggested that we set aside fifteen minutes a night to, for Allison to be able to vent and grill me on, you know, the [INDISTINCT]—
SSGT CURTIS: Mmm.
BADEN-CLAY: And all of that sort of thing. And we did that. But that was no, you know, it wasn’t.
SGT JACKSON: When she vents, does she scream at you?
BADEN-CLAY: [INDISTINCT] no. She’s not like that. Um no. She has, she has—

Now, I will not read the rest of it, your Honours, but the rest of it is consistent with what I have just read and consistent with other evidence in cross‑examination and examination‑in‑chief in which the respondent repeated that his wife was not excitable in the sense of demonstrating anger towards him by physical means. So on this day he has hidden his – the continuation of the affair from police, and if your Honours would go to volume 1 at page 317 – I am sorry, at page 315, line 25, she called him – Ms McHugh called the respondent:

I made the call through to him. I was coming home, going down Coronation Drive, and the phone kept cutting in and out, so – I don’t know whether he rang me back or I rang him –

and she says – I will skip a couple of questions. He is in the supermarket:

Was there anything raised about the conference on Friday?‑‑‑Yes.

That is the real estate seminar:

Could you tell us about that, please?‑‑‑I remember just saying I – you know, look, property management. I’ll get there, and, you know, I didn’t – it felt like a let down from – from sales –

She means that she had been in sales and regarded working in property management as a reduction in rank:

but I was really hoping that that conference was – the property management conference was going to give me a little boost and feel good about it, and I said, oh, well the conference is on tomorrow. It’ll be really great. And that’s when he said, well, yeah, I’ve got to tell you – I’ve got to talk to you about that. Two of my staff members are going.
Was that the words that he actually used?‑‑‑I think ‑ ‑ ‑
Two of my staff members are going?‑‑‑Yeah.
How did you respond to that?‑‑‑Well, I knew who the staff members were. I said Allison is going. And Kate, he said. And ‑ ‑ ‑
How did you know that they would be going?‑‑‑I knew that Kate was the other property manager and the only property manager at the time.

She explained why she knew that Allison was going. Just below 15:

Well, what happened after he told you that Kate and Allison were going? How did you react to that?‑‑‑I lost it. I just – I just said I – and when were you going to tell me that. And he said I didn’t really know – I didn’t know myself until just the last minute. Kate had booked the tickets. I went into a rage about, well, that doesn’t really make sense for a business that’s failing to support two property managers to go to this conference. What is going on. And how could you put us in that situation. You need to tell her.
And how did he respond to that?‑‑‑Well, he didn’t, really.
Well, you’ve told us you lost it. Do I gather from that that you were quite angry?‑‑‑Yes.
All right. How were you talking on the phone to him?‑‑‑I was getting angry. I just – I just felt like I was being played again. So I asked – I said what – what is going on. You need to tell her. It’s not fair that we’re in the same room together. It’s not fair on either of us. It wasn’t an option for me to not attend. I’d only just started this new job.

At the top of 317 she continued:

I said I need to know what is going on. What – what is happening here. What – you know, what is – what are – what is your plan? What are you going to do to change things for us to be able to be together. And he said I’m thinking of – I’m thinking of selling the business. And I said and when are you going to – are you going to do that before you leave your wife or after you leave your wife.
Did he respond to that?‑‑‑After.

Now, the jury was entitled, in our submission, to conclude if it thought fit that this evidence of non‑disclosure while this was going on was evidence that the respondent was alive to the significance as an indicator of his guilt of his desire to be with Ms McHugh and the significance as evidence of motive and of his guilt, his hiding of what had been happening since December of the previous year.

In our respectful submission, the dictum of Chief Justice Dixon in Plomp concerning the relevance of evidence of this kind as evidence of motive and therefore as going to intent is not just a legal proposition but it is a statement of a logical induction that is based upon human experience, and the jury might well have concluded and, having convicted him, we would submit probably did conclude, that it was the respondent who immediately appreciated the significance of the hidden affair as a motive for murder and that is why he hid it.

If the state of his relationship offered evidence of a motive for murder, as Plomp says it does and, in our submission, his effort to hide it before and after he killed his wife is evidence of what that motive – non‑disclosure itself is evidence of what that motive could signify - an intentional killing, because the Court of Appeal rejected all of that as evidence of motive, it gave no significance to the respondent’s guilty attempts to hide it. In addition, there was other evidence.

Your Honours have no doubt read in the reasons of the Court of Appeal the evidence that there were scratches on the respondent’s face. Could I hand up one of the photographs that was tendered at the trial, your Honours? They were not included in the record book, but I will hand up one of them. Your Honours will see the character of the scratch marks that the jury had to consider.

The learned trial judge, Justice Byrne, dealt with the expert evidence concerning that in his summing‑up in volume 3 at page 1321, your Honours. His treatment of it begins at 1321, line 5, and continues over to 1323 at the foot of the page, but what it describes is that all of the experts were unanimous in their view that there were two different sorts of scratch marks on the face caused by two different agents. One set was caused by – in their view was consistent with finger marks and inconsistent with a razor, and the second was consistent with having been caused by a razor being moved in an unnatural manner across the face rather than down it.

There was, in addition, evidence that the respondent had a bruise under his right armpit. Could I give your Honours the reference to the evidence - volume 2, 529. There was a reddening mark, a bruise which was consistent with either his having had a backpack on and somebody pulling it hard, or with having clothing on that was pulled hard - clothing that did not stretch – or with scratch marks, fingernail scratch marks through clothing. There was blood in the car that had been bought in February.

BELL J: Just before you move to the blood in the car, the Court of Appeal at appeal book 1812, paragraph [43], referred to what was characterised as a strap mark near the appellant’s left armpit, noting that it might be consistent with the deceased having pulled at her husband’s clothing. Then their Honours went on to say:

the Crown at trial did not seek to rely on any of the other marks on his body as having been occasioned in any physical conflict -

But do I understand the Crown did maintain, in addition to the scratch marks, that the armpit mark was consistent with a struggle?

MR SOFRONOFF: My understanding, your Honour, is that, leaving aside the scratches on the face, there were two other sets of marks, one somewhere on the neck, which he explained was caused by insect bite, and the one I have just been talking about. The Crown did not rely upon the first one that I mentioned but relied upon this.

FRENCH CJ: He said he had scratched the insect bites.

MR SOFRONOFF: That is right, so that was not relied upon, but the marks near the armpit were relied upon. I will check that I am correct about that, your Honour. Yes, your Honour, in volume 3 at page 1059 at line 40 Mr Fuller, the prosecutor, put to him in cross‑examination:

You killed her either in or at your house at Brookfield that night or in the early hours of the morning?---No, I did not.
You attacked her and the only way that she could respond was to lash out and claw at your face and leave marks upon it?---That is not true.
Probably as you smothered her and took her life from her?---That is not true.
Perhaps she grabbed at your clothing; is that why you had that injury under your right shoulder?---No.
Why do you have that injury?---I don’t know.
You have no idea?---No.

That was the evidence. The blood in the car, your Honours, was on the driver’s side in the rear section of a car that had three rows of seats. Neither the respondent, at volume 3, page 911, nor his children in the videoed evidence that was given, could account for its presence.

Then the respondent said that he had gone to bed leaving his wife awake watching TV and that he had gone to bed at about 10 o’clock, but tests on his iPhone showed that it had been placed on a charger by somebody at 1.48 am in his bedroom, by his bed, on the side of the bed on which he slept. His wife’s side of the bed had its own charger for her phone.

Allison Baden‑Clay’s hair had leaves tangled in it. Four of the six species of plants from which the leaves had come grew at the respondent’s home and did not grow where he left his wife’s body.

FRENCH CJ: This goes to the question whether he was responsible for her death and took the body from the house subsequently. The premise we are operating on is that the jury has found that he was responsible for her death. The question is whether there was a verdict of murder open.

MR SOFRONOFF: That is right – I understand, your Honour. In relation to that, it is not that the leaves show that he killed her at the house; it is that the leaves show that she did not die where she was found. Therefore, that was evidence that he disposed of the body.

FRENCH CJ: Yes.

MR SOFRONOFF: The disposal of the body is evidence that the jury could take into account on the question of intent with the other evidence, in our submission.

BELL J: In that regard, I think the trial judge took an approach which the Court of Appeal considered overly favourable to the accused.

MR SOFRONOFF: In our submission, it is the same, yes.

BELL J: But the Court of Appeal accepted that the evidence of the concealment of the body was evidence capable of being taken into account together with other evidence as establishing an intent to kill or to do grievous bodily harm.

MR SOFRONOFF: Yes, that is right. Their Honours, as we submit too, concluded that evidence of the disposal could go to intent subject to there being other evidence.

FRENCH CJ: It is calculated conduct post ‑ ‑ ‑

MR SOFRONOFF: Yes, that is right. Could I pause there - the characterisation of all of his conduct from the time he killed her to the time he has finished giving evidence at the trial can rightly be described, in our respectful submission, as not only calculated but cold‑blooded, for reasons I will develop.

FRENCH CJ: What does that add?

MR SOFRONOFF: It adds this, that in R v Heyes, the decision of the Victorian Court of Appeal, to which I will come, a case that preceded Ciantar, dealing with post‑offence conduct, Justice Charles, who was in dissent, observed that sometimes it is not just the conduct itself but it is the character of the conduct that might give rise to an inference of intention.

If, as in this case, we submit, a person conducts himself so that not only does he dispose of his wife’s body but disposes of it in the manner in which he did, but in addition then, if the jury concludes that the scratch marks were caused by her defending herself, he then used one of his daughters as some sort of amateurish self‑corroboration by telling her he had scratched himself shaving so now she would recount that if asked, and asking her to put a bandaid on it to cover the marks, and then in the course of the next many days that followed until the body was found, he pretended that he did not know where his wife’s body was when he knew all along, if the jury concluded that he did, and left his children in a state and not knowing where the mother was when he knew what had happened to her, in our respectful submission, one could look at that and conclude that this is a man who at least is capable of murder and let us look at the evidence to see whether we are satisfied of it.

KIEFEL J: Does it go that far or is it really that he is a man who is reasonably comfortable with lying and is able to construct it fairly quickly.

MR SOFRONOFF: Your Honour, that is for the jury. Yes, one could.

KIEFEL J: Quite, but as the Chief Justice has asked, adding other layers to it seemed to be more speculative than reasonable inference.

MR SOFRONOFF: I will come to the passage and seek to get aid from it in terms of articulating the proposition, your Honour, when I do in a few minutes.

FRENCH CJ: It is just that “cold‑blooded” is a metaphor and I am not sure that it adds anything to the notion of calculation. You might say “calm calculation” and he was being presented by the defence as a calm man, which by then, presumably on your case, feeds into the whole notion that his conduct was that of a man who had been acting intentionally, that it was not a question of an accidental death.

MR SOFRONOFF: Could I put it into this context then, your Honour, without using emotive adjectives. Having regard to the deliberateness of what he did and his preparedness to use members of his own family to pretend to search for his wife and his preparedness to cloak the truth from his children, having regard to what we might infer was the cost to them in not knowing where their mother was, one could conclude about him – one does not have to but one could conclude about him that this was a man, and this is only the first step, who is capable of murder.

The defence, of course, argued the contrary at trial, that this is a man who had never laid a finger on his wife, had never applied any force to her. He was not a man against whom it was said that he was violent in any way. As against that, having ‑ now we know on the jury’s verdict and it is not challenged – killed his wife, then on the one hand he acted as a man conscious of the guilt of having killed her but in addition the jury could conclude from all of the evidence, including the kinds of things he was prepared to do, that this was a man capable of murder and, on that evidence, in our submission – motive and the rest of it – they could conclude, if they wished to, that he intended to kill her.

BELL J: Is another way of looking at it that here the Court of Appeal considered there was a reasonable hypothesis consistent with his innocence of murder and that was that the wife had become angered, attacked him, he had responded by striking her not intending to do grievous bodily harm to her but she had fallen and sustained some severe and fatal injury? Might one look at the post‑offence conduct as in the ordinary experience of mankind inconsistent with the conduct of a person who had admittedly and unlawfully brought about the death of his wife but without the necessary intent? One might think that would be a process of reasoning that would be open in terms of the exclusion of the asserted reasonable hypothesis.

MR SOFRONOFF: Yes. It is conduct that a reasonable jury could conclude was inconsistent in the acts and the character of some of those acts with the position of a man who had unintentionally killed his wife.

FRENCH CJ: That, I thought, was how really the case was being put.

MR SOFRONOFF: Yes.

FRENCH CJ: The notion of it leading to an inference that somebody is capable of murder – I mean I am not sure what that means. That is a general judgment which goes beyond the facts of the particular case.

MR SOFRONOFF: Your Honour, I do not want to make too much of it but, of course, as a matter of human judgment one might be told things about an alleged killer and conclude that although there is evidence this person’s character does not seem to be, at first step, the character of a person who could intentionally do this whereas one could look at other evidence, as in this case the Crown argued saying, “This is a man who could well have done it because of what he did after.”

KIEFEL J: Mr Sofronoff, you mentioned before that the foliage found in Mrs Baden‑Clay’s hair was not relied upon by the prosecution ‑ ‑ ‑

MR SOFRONOFF: No, I did not say that, your Honour.

KIEFEL J: I was not quite sure exactly what you said but I thought you said it did not place the killing at the house.

MR SOFRONOFF: No. The Chief Justice, I think, put to me that the foliage proved that the killing happened at the house and that therefore there was a killing at the house and that tended to show that he did it. My submission was yes, it went to that, but it also went another step. Once you place the killing at the house and find her body at the creek then somebody transported her - he then transported her. “Disposed of the body” has its own significance.

FRENCH CJ: It has a double effect ‑ ‑ ‑

MR SOFRONOFF: That is right.

FRENCH CJ: The calculated conduct ‑ ‑ ‑

MR SOFRONOFF: Yes. For what it is worth, in the jury’s mind, the disposal of the body - it could also be inferred from the respondent’s evidence that he had gone to bed at 10.00 pm. Can I your Honours the reference – volume 3 at page 1333 – I think that is a reference to the summing‑up, your Honours. As his Honour summed up to the jury, there was evidence that the phone had been put on a charger at 1.48 am at a time he must have been asleep. He could not explain it. At volume 3, 1017, he denied that he had put the phone on the charger at that time. He had to deny it because otherwise he would have been awake and that would implicate him in the disposal of the body of his wife.

Once the jury concluded, if they had concluded, that he had killed his wife, then they could take into account his phony concern about her whereabouts the next morning. Could I give your Honours the references to the evidence – volume 3, pages 921 to 924. He not only drove around the suburb pretending to look for her but he rang his parents and then his sister came with him on this search for his wife.

He had, early that morning, the jury could conclude, to suit the building up of a story, used his daughter to give verisimilitude to the story of how he had cut himself shaving. The reference is at volume 3, 920. All of this, in our respectful submission, raises an inference of consciousness of guilt of murder for the jury to consider.

Justice Byrne gave an Edwards direction. Your Honours will find that in due course in volume 4 at 1325 to 1326. His Honour told the jury that there was only one lie that was capable of raising an inference of guilt, the lie about the scratches. In our respectful submission, that was too generous a direction because the lies to the police about the affair were also capable of raising such an inference, in our submission.

But in any case, consistently with what Edwards requires, the defence was asked what alternative inference they wished the judge to put to explain the lies, if the jury concluded that they were lies. That your Honours will find in due course in volume 3 at 1130, and none were forthcoming.

Now, as your Honours have seen, the Court of Appeal concluded by process of reasoning that the post‑offence conduct that I have described was intractably neutral on the issue of intent. That appears at paragraphs 47 and 48 of their Honours’ reasons. Those two paragraphs echo earlier authority in Queensland, which are – could I give your Honours the citations and, at lunchtime, we will give your Honours’ associates the cases; I do not intend to take your Honours to them now. The first one is R v Huebner [2004] QCA 98 at paragraph [121]; R v Dan [2007] QCA 66 at paragraph [133]; and R v Lennox [2007] QCA 383 at paragraph [52].

Could I, to give your Honours the flavour of the line of authority, read one passage from the reasons of Justice Holmes, as her Honour then was, in Lennox, at 52? Justice Williams had concluded that certain post‑offence conduct was capable of giving rise to an inference of intent in a murder case. Her Honour disagreed and said in paragraph 52:

I do not think that the lies told by the appellant in the interview on 23 November – his denial of contact with the deceased and his lie about how he came to have her credit card – could, taken alone, have justified the inference of a consciousness of guilt of murder. That evidence was, in my view, intractably neutral as between murder and manslaughter. That is not to say, however, that those lies could not have been relied on, had the Crown so chosen, as a circumstance to be taken into account in a larger case.

Those three cases – Dan, Lennox and Huebner – and indeed, this case, in our submission, demonstrate the existence of a controversy, if I can put it that way, that exists about how one uses post‑offence conduct in cases of murder/manslaughter, at least in this State.

The Court of Appeal in this case referred to the decision of the Victorian Court of Appeal in Ciantar. Could I ask your Honours to go to that? Ciantar was evidently a specially constituted Bench of five which delivered a single judgment in a case that raised for consideration the significance of consciousness of guilt evidence, failure to stop at the scene of an accident, and lies, in a traffic case. If your Honours would go to Ciantar at page 46, paragraph 62 and following, their Honours at paragraph 62 dealt with the decision of the Queensland Court of Appeal in Huebner. Then, at paragraphs 65 and 66, their Honours said:

Of course, there will be circumstances in which post‑offence conduct is incapable of being probative of guilt of the charged offence as opposed to a lesser alternative . . . For example, if a case of murder were presented to a jury on the sole basis that the accused admitted that he killed the deceased unlawfully, but denied murder, and the only evidence of the killing, apart from the admission, was that the accused had fled the killing and initially denied involvement in it, the jury could not properly be satisfied that the accused was guilty of murder . . . one could not exclude as a reasonable possibility that the accused was guilty of manslaughter . . .

But in most murder cases the evidence is more extensive than that. Usually, the Crown presents evidence –

as here:

about the relationship if any between the deceased and the accused, the events leading up to the time of death –

as here:

the place and time and the circumstances of the death, the means of killing –

as here; at least, not natural death:

and the cause of death, other injuries which may have been inflicted on the deceased and any injuries suffered by the accused in the course of the killing -

as here:

Although the post‑offence conduct may not be enough in itself to sustain an inference that an accused killed with intent to kill or cause really serious injury, as opposed to some lesser state of mind, such evidence, when combined with evidence of the accused’s words and conduct before and during the killing and forensic evidence, may well satisfy the jury –

In short, post‑offence conduct is one category of circumstantial evidence to be considered in a circumstantial case with all the other circumstantial evidence.

FRENCH CJ: Now, I am not sure whether you referred to this earlier, Mr Sofronoff. There was a redirection, I think, in relation to the use of lies for the purpose of inferring intention, at 1387 in volume 4. I do not think there was any complaint about that.

MR SOFRONOFF: No. We made no complaint then or now about that.

FRENCH CJ: And none from the defence.

MR SOFRONOFF: Sorry, your Honour.

FRENCH CJ: There was no complaint from the defence.

MR SOFRONOFF: No, there was no complaint from the defence. The point we wish to stress is that, in some respects, a circumstantial case is different from a case in which there is direct evidence. It is different because, to the extent that the Crown can say, as it always does, that there is an inference of guilt that arises from the evidence, always the defence can say there are other inferences that can arise on the evidence, and they did so here. Each circumstantial case is pregnant with competing inferences, as was this one, and it is then a matter for the jury to determine, according to the rules of reasoning that judges instruct them about, whether they are prepared to accept this inference because all the other inferences have been excluded, or not.

Could I ask your Honours to go back to Plomp at page 246, where Justice Menzies cited a passage from the reasons of Justice Barton in Peacock, just below halfway:

But when the case is undoubtedly capable of the inference of guilt, albeit some other inference or theory be possible, it is for the jury, properly directed, and for them alone, to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds”.

The function, in our respectful submission, is a jury function, not a judge’s function. In considering the evidence and the competing inferences, it is relevant to consider not only the acts, but what they might signify about the person who did those acts.

Could I ask your Honours, then, to go to R v Heyes, the case I mentioned a little while ago. I have cited it in our outline, your Honours. I am told it is not on our list, but may I read you this passage from paragraph 9 of the reasons of Justice Charles, who was in dissent on this issue. At paragraph 9, his Honour said:

This passage –

one he had cited from a Canadian case:

illustrates that post‑offence conduct may –

He emphasised the word “may”:

support a distinction between two levels of culpability for a single act, or between two offences arising from the same set of facts in at least a situation where the post‑offence conduct is out of all proportion to the level of culpability admitted. Post‑offence conduct may also be relied on where the accused has admitted the actus reus but asserted some justification (such as self‑defence). There may be a third possibility, that post‑offence conduct may support a distinction between two levels of culpability when the actions of the accused which the jury find proved in the killing of the victim were similarly “out of all proportion to the level of culpability” involved in the lesser offences being considered by the jury.

That is the point I was attempting to make earlier, that one might infer something more from post‑offence conduct than consciousness of guilt. One might infer in a particular case consciousness of guilt of the more serious offence; in a murder case, consciousness of guilt of intentionally having killed the deceased.

Could I ask your Honours then to go to R v Rice? I am sorry, your Honours, this case was also not on the list. It was a case in which the accused had had a relationship with a woman. He took her away for a weekend and she was not seen alive again ‑ ‑ ‑

FRENCH CJ: What is the citation, Mr Sofronoff?

MR SOFRONOFF: It is [1996] 2 VR 406. Her body was found four years later in a 44‑gallon drum that the accused had left with a friend, and the autopsy revealed no natural cause of death. The learned trial judge withdrew the murder case from the jury, and the trial proceeded as manslaughter, and the accused was convicted of manslaughter and appealed. Could I give your Honours the citation - page 420. At halfway, his Honour referred to the argument of the appellant, who had been convicted – I am sorry, of the prosecutor:

This approach accepts that, if it was open to the jury to find that the applicant killed the deceased, then it was open to them to find that he murdered her. On this approach, it is accepted that no practical issue arises about specific intent. [Defence counsel] Mr. Tehan then submitted that it was not open to the jury to find that the applicant had caused the death; there was, he said, at least one reasonable alternative hypothesis, that of death from natural causes. He did go on to submit, however, that it was not open to the jury to find that the applicant had caused the death by an unlawful and dangerous act. In the end it seems to me that he is to be taken as having submitted that manslaughter could not be found . . .
I would not have withdrawn the case of murder from the jury, having regard to the whole of the evidence, which in my view permitted of a finding that the applicant strangled the victim. But we are not directly concerned with the correctness of that ruling.

So what we have is three decisions of the Supreme Court of Victoria – Rice, Heyes and Ciantar – Ciantar being conclusive in the sense that it was a five‑member Bench which gave a unanimous judgment, but which demonstrates that a controversy appears to exist about how post‑offence conduct ought to be considered by a jury.

In our respectful submission, drawing from Ciantar, in this case the evidence as a whole, including evidence of motive, the respondent’s pre‑offence conduct, the events of the afternoon, of the night of the killing, and the post‑offence conduct and the lies was evidence which was capable for a jury to accept as raising an inference which excluded all other inferences.

Now, one turns then to the proposition, what are the reasonable hypotheses consistent with innocence which had been excluded by the Crown case. As I have earlier submitted, any circumstantial case will raise competing inferences, but the point is that the reasonable hypothesis must arise from the evidence. That, we would submit, is not a controversial proposition.

Could I give your Honours three references: Peacock v The King (1911) 13 CLR 619 at 629, Barca v The Queen (1975) 133 CLR 82 at 104, and Lane v The Queen, a decision of the New South Wales Court of Criminal Appeal (2013) 241 A Crim R 321 at 348, in which the court cited the English decision Caswell v Powell Duffryn Associated Collieries [1940] AC 152, for the proposition that for a hypothesis to arise to be considered as competing with the hypothesis urged by the Crown, it must arise on the evidence. In this case, Justice Byrne invited the defence to submit what are the hypotheses consistent with innocence. If your Honours would go to appeal book 3, please ‑ ‑ ‑

FRENCH CJ: Well, these are all hypotheses involving the proposition that he did not do it.

MR SOFRONOFF: He was not involved, yes. I will not waste your Honours’ time with taking you to the passages in the book.

KIEFEL J: It is your argument that the Court of Appeal engaged in speculation?

MR SOFRONOFF: Yes, and not only that, but it was speculation which was in conflict with the case upon which the parties joined issue. By that I mean that the prosecution’s case was murder and nothing else. Of course, it had to prove intent and if it failed, then there would be the outcome. The defence case was that the respondent had nothing whatsoever to do with his wife’s death and he raised a number of possibilities - intoxication by prescription medicine or alcohol, suicide and something called serotonin or sertraline poisoning to do with some medicine she was taking. The prosecution ‑ ‑ ‑

KIEFEL J: Did the defence put a different case in the Court of Appeal?

MR SOFRONOFF: I think the answer is that it put the case that intent had not been proven. The appellant put the case that the Crown had not proven intent and the proposition, as I understand it, that there was an actual factual hypothesis that should have been excluded by the Crown came from the Bench.

KEANE J: But in this case the hypothesis that was put, not having been excluded, was actually contrary to the evidence that the accused himself had given.

MR SOFRONOFF: That is right, that is right.

KEANE J: So that in this case, this case is actually a stronger case for the Crown than Weissensteiner.

MR SOFRONOFF: Yes, that is right, your Honour. That is our submission.

KEANE J: If the Court of Appeal was right, then there is nothing left of Weissensteiner.

MR SOFRONOFF: That is right. That is our submission, your Honour, and I am coming to Weissensteiner because it is an important factor for your Honours to consider in due course. We use Edwards, the inference to be drawn from lies, in cases where the prosecution’s evidence is direct, as Edwards was - a case of sexual assault in a prison van, direct witnesses. We also use it in a circumstantial case to raise an inference within a class of inferences that are competing inferences.

Weissensteiner is concerned with a circumstantial case in which an inference arises that is not rebutted because of silence. This is a case which is an entirely circumstantial case in which the Crown raises an inference. The defence raises other inferences. We can take it that those other inferences have been demolished.

In accordance with Weissensteiner then, what is left is silence on the part of the accused, in a circumstantial case where he could have offered evidence. So, like Weissensteiner, it would have been permissible to submit that if you reject his evidence then there is no evidence coming from him to give an innocent explanation to all of these things and that would make the inference raised by the Crown stronger. It does not supply evidence but it is stronger.

But you have also the reason why there is silence is because the jury concludes that he has lied. So you have a double reinforcement from the absence of evidence from the man who could have given it to you, if he was innocent, and the lies compounding that reinforcement because the reason for the absence of evidence is that he chose to tell lies, if that is what you conclude as the jury.

To come back to the point, in those circumstances, in our submission, it is simply not open for anybody to say, at the stage of say closing address or on appeal, but there is this other possibility that arose on the evidence, namely, a violent altercation, whoever started it does not matter, and an unintentional killing, in circumstances where first, there is no evidence and secondly, the defendant denied that anything like that had happened and asserted repeatedly, as I was at pains to point out, that his wife was not like that, they do not have physical fights.

Could I refer your Honours to three cases that we cited in our oral outline and in the other outline for the proposition that we submit in this case that in a case like this, where the parties have chosen to join issue and to define the issues in the way that they have, it is not open then for the

defence to raise on appeal some other factual basis that might have been run at trial but was not and indeed was expressly denied at trial.

The cases we rely upon, your Honours, are Nudd v The Queen (2006) 80 ALJR 614 at 619 at paragraph 9 in the reasons of Chief Justice Gleeson, the Victorian Court of Appeal decision in R v Momcilovic (2010) 25 VR 436 at 481 - it was overruled but not on that aspect, R v Luhan [2009] VSCA 30 at paragraphs [31] through [37].

The upshot, in our submission, was that there was the inference that the Crown sought to raise of intentional killing, for the reasons I have explained, and then one asks the question what inference was against it. What was against it were these theories of suicide and depression and the rest of it which it was open to the jury to reject because there was evidence led by the prosecution to negate them. Having negated those, there was no competing inference.

Of course, in a universe of possibilities anything is possible but, in the context of this discourse, for there to be a competing inference for the purposes of the process of reasoning identified in Peacock v The King it has to be a reasonable inference and, as this Court explained in Barca for hypothesis to be reasonable, it must arise on the evidence and this hypothesis did not only not arise on the evidence, it was contrary to the evidence.
That being the position, in our submission then, Weissensteiner and what that cases says about the absence of evidence and Edwards and what that case says about the effect of relevant lies reinforcing Crown inferences, is apposite and makes the reasoning that we respectfully criticise in the Court of Appeal’s reasons, invalid. Those are our submissions, your Honours.

FRENCH CJ: Thank you, Mr Sofronoff. Yes, Mr Byrne.

MR BYRNE: If the Court please. Could I begin by just dealing with a couple of the questions asked by the Court to my friend and give our response to those. Your Honour Justice Bell asked our friends in relation to the injuries that were left to the jury by the prosecutor. In our submission, the answer to that is to be found - we note it in footnote 14 of our outline and the reference is to page 1260 of the appeal book which is in volume 3 and this relates to the address by the Crown Prosecutor. If I may take the Court briefly to about line 14 on that page where the Crown Prosecutor submits this:

This is close quarters, close‑up violence. They are within arm’s reach of each other. The only injury she is able to inflict upon him is a scratch to her face –

It is corrected to:

his face.

I emphasise the word “only” there because that is the way, as the evidence fell out and the evidence, cross‑examination of various experts, that was the Crown position at the end of the evidence and that was the way it was put to the jury, and lines 19 and 20 for completeness:

She’s unable to cause any injury to him other than the face.

So that just hopefully answers that question that your Honour raises. The other aspect is, and I can deal with this immediately, the submission by our friend most recently in respect to the hypotheses that were put forward by the defence. Our submission in respect of that can be concise. Those hypotheses were, as my friend properly identified, consistent hypotheses going to innocence, innocence being a reference to the respondent not being involved in the killing at all.

That was, indeed, the way the trial was conducted by the defence on instructions that this was an unlawful killing. Well, it was a death which was unexplained and which the respondent had no involvement in so those hypotheses were put forward as to innocence. They were not hypotheses put forward in respect to an unlawful killing because it is correct to say that that was not the way the case was litigated below.

But can we say immediately, and if we can take your Honours to volume 2 and your Honours would be aware that there was at the close of the Crown case a no‑case submission made and that commences at page 781 and it is the submissions that were made here on behalf of the respondent, in our submission, clearly explained what the position of the defence was, that at the close of the Crown case, before any evidence was called or given on behalf of the respondent, the submission was made that the evidence led did not establish an intentional infliction of grievous bodily harm or an intentional causation of death.

Can I take your Honours immediately to page 783 - this is submissions made by my learned friend, Mr Copley, where it said, a submission is made clear:

there is no evidence that would elevate the prosecution case from one of an unlawful killing to the offence of murder, because there’s no evidence that is available from which it can be inferred that the accused intended to kill or do grievous bodily harm.

That is expanded upon at page 784, commencing at line 35:

All the evidence goes to show is that, your Honour, there was an argument. There was then arguably a fight. She responded physically towards him, and she is dead. That is all the evidence shows.

FRENCH CJ: Now, this was in the context of a no‑case submission.

MR BYRNE: That is so, your Honour.

FRENCH CJ: In terms of what was being put to the jury, can I just ask you to look at 1182 in volume 3. I think you were discussing his Honour’s direction to the jury under the heading “Accused’s Evidence” ‑ ‑ ‑

MR BYRNE: Yes, your Honour.

FRENCH CJ: ‑ ‑ ‑ at about line 20. I do not want to misconstrue this. The proposed draft was - under the Accused’s Evidence:

Alternatively, the conduct in question does not tend to prove an intentional killing as distinct from manslaughter.

Then coming down to line 35, you say:

The difficulty with leaving it in that fashion is the passage your Honour identified earlier on that the defence do not contend for it.

MR BYRNE: That is quite so. We could not on the way that the trial was conducted.

FRENCH CJ: That was not a case that was being put to the jury as a sort of default position.

MR BYRNE: No, no, but we have made ‑ ‑ ‑

BELL J: One difficulty, Mr Byrne, is your no‑case submission was made at the close of the Crown case. By the time the matter was left for the jury what was in play was the whole of the evidence and the whole of the evidence included the evidence of the accused concerning the events that were material and an issue that arises is whether the rational hypothesis ceases to be one in circumstances where the only person who could speak to it gives an account and denies that version of events. I have in mind, in part, a passage in Peacock in the judgment of Chief Justice Griffiths at 629, it is the passage to which Mr Sofronoff refers.

Now, in fact, in that passage the Chief Justice is quoting from Starkie on Evidence, and it is the 1842 version of Starkie, and what is being discussed is the significance of the account that an accused gave in the days before the accused could give evidence. The conclusion of the passage is that the effect ‑ this is of the accused’s account ‑ may be on the one hand to suggest a view of the case which consists with the innocence of the accused and which might otherwise have escaped observation. On the other hand, its effect may be to narrow the question to the consideration whether that statement being or be not excluded or falsified by the evidence. I suppose, one way of looking at this is looking at the whole of the evidence at the time when it came for the jury’s retirement was the question of that alternative hypothesis narrowed having regard to the totality of the evidence, including the evidence of the accused.

MR BYRNE: In our submission, no, the point of principle must remain that by a plea of not guilty all issues are put in contention.

BELL J: Yes.

MR BYRNE: Where the defence, which is run on instructions, is I was not involved in these events, then by necessity we would say, and as a point of principle, that does not exclude the Court or the jury, or the Court of Appeal, seeing a reasonable hypothesis being still open. It is certainly a factor to be taken into account by both of the tribunals of fact, if I can put it that way, but it does not – it cannot lead to a reversal of onus that if the defence chooses to run a case one way, he or she is denied a reasonable hypothesis which remains open.

That is why we sought to take the Court to what was said in the no case as to why the Crown evidence established a basis on which there was a short sharp altercation between the two persons leading to a death with no known cause and then, as the Court of Appeal found, the subsequent actions and panic of the respondent in disposing of the body. Whilst it is true, as our friends put, that there are aspects of callousness about those actions, they do not deprive, we would say, a tribunal from determining that that was still a reasonable hypothesis.

KIEFEL J: How does the hypothesis remain open if the accused’s version of events is contrary to it?

MR BYRNE: We say it works this way, as the Court of Appeal dealt with that. I will just turn that up quickly. It is in the judgment which is in volume 4, in paragraph [45] on page 1813, commencing the third sentence:

The jury could properly have rejected every word the appellant said as a lie. But that would, with the exception of his explanation of the scratches on his face, have done nothing to advance the Crown case. Conclusions that he had lied in that regard and that he had taken steps to dispose of his wife’s body were properly to be taken into account, as evidence of a consciousness of guilt, in the context of all the evidence in the case.

So, we say, the orthodox approach adopted by the Court of Appeal, namely to assess or take into account the accused’s evidence but the three options which are normally given to a jury, namely, it may convince them of his innocence, it may lead to doubt or they may reject all of it but that still leaves the onus on the Crown to ‑ ‑ ‑

KEANE J: It leaves the onus on the Crown but it also takes out of play a rational hypothesis available on the evidence consistent with innocence. The Crown has got to prove that he intended to kill.

MR BYRNE: That is so.

KEANE J: But once he swears that the circumstances of the event were such that the possibility of an unintended killing occurred, once he swears that, there is just no basis on the evidence. He has had the opportunity to give the evidence. He has given the evidence. It is inconsistent with any notion at all that there has been an unintended killing by him. He has given evidence which has precluded the possibility of that hypothesis being a reasonable one available on the evidence.

MR BYRNE: Your Honour, that was similar, if not identical to the situation which this Court confronted in Knight v The Queen (1992) 175 CLR 495, tab 3 of our authorities, and I will just take your Honours briefly to that if I could. Just to remind your Honours of the facts and general terms of that. That was a case we say of some similarities in that there were ongoing dealings and perhaps stronger evidence of motive and I will have to deal with that in due course, but that was a case in which Mr Knight had been – made threats to the associates, if not directly to the ultimate complainant, of harm.

He had been beaten up, to use the vernacular, by the complainant earlier days than what occurred on the night. He had then taken a firearm to a venue in which there was expected to be a confrontation with the other parties and he had, when the confrontation occurred, fired a shot, ultimately killing one participant on the other side for which a manslaughter conviction resulted due to provocation, it would seem. Then there were two shots fired in close quarters in respect to the second complainant who ultimately suffered injury but the jury convicted of attempted murder on the basis that there had to be the intent, in that case of course, to kill.

Now, Mr Knight gave evidence and he said he simply could not recall firing that shot. The majority of this Court held that that did not exclude there being a reasonable hypothesis and the relevant passage for our purposes is at about page 504 of the majority judgment, commencing the second full paragraph on that page:

And the jury may well have disbelieved the appellant’s story, having regard to the way in which he disposed of the gun, shaved off his moustache and, upon one view of the evidence, told lies to the police when first questioned about the events of the Tuesday evening.

Nevertheless, even assuming that the jury decided all of these matters against the appellant, it does not appear to us to be possible to exclude, as not being reasonably open on the evidence, the hypothesis or inference that the appellant did not fire the shot which hit Salvo with intent to kill.

On the penultimate paragraph on that page, their Honours go on to explain the basis on which they found that hypothesis open. That, as we read the judgment, was the hypothesis not given in evidence under oath by the appellant in that case.

KIEFEL J: But, nevertheless, the Court there considers in some detail what the evidence might be said to disclose. What evidence was there in this case which is consistent with the Court of Appeal’s hypothesis which takes it out of the realms of speculation?

MR BYRNE: In that regard, can we walk your Honours through quickly, albeit, our written outline of submissions because we have attempted in the early part of that, in Part IV, commencing at 4.1, to raise the factors which we say were properly taken into account by the Court of Appeal in reaching the hypothesis that they say was open. We emphasise that this was a hypothesis which is open on the Crown case.

KIEFEL J: I am sorry, what was that reference, Mr Byrne, in your written submissions?

MR BYRNE: It is Part IV beginning perhaps at paragraph 4.2 on page 2 of our submissions.

GORDON J: So, basically, this submission is a submission to make good, is it, the way in which the Court of Appeal dealt with the matter?

MR BYRNE: Yes, your Honour. We note there ‑ and this is in accordance with the evidence, we do not understand our friends to differ from this ‑ there was some ongoing tension between the husband and wife. There was the advice given by the counsellor as to the 15 minutes as to discussions or venting. We put it about line 15 there. The quote was “vent and grill me”. There had been a 15 minute session on the night of the 19th in which there were “some difficult things that we talked about”. The situation was “pretty tight” financially and there were questions from the list which our friend has taken you to, exhibit 98, I believe it was, which were personal questions, for example, how often in the car that they called in the family, “Snowy”, were the seats put down to facilitate activities between the respondent and Ms McHugh.

So, they were questions which seem to have been asked on the night before which, certainly, and as the Court of Appeal found, we would submit, give rise to this tension which they ultimately find, jumping forward, to the – an explosion in which it could not be determined on the evidence the circumstances in which the scratch marks were inflicted on the respondent, be they defence or be they offence. We say the circumstances here justify that hypothesis being open. It is a different question that your Honour Justice Keane puts to me as to whether that is excluded by the evidence which was given by the respondent but, we say, certainly here that the evidence justifies the conclusion reached by the Court of Appeal as to that being available on the evidence and not just ‑ ‑ ‑

KIEFEL J: But the evidence that you are referring to really goes to the question of intention, does it not? The hypothesis that is referred to at paragraph [48] of the Court of Appeal’s judgment is:

that there was a physical confrontation between the appellant and his wife in which he delivered a blow which killed her (for example, by the effects of a fall hitting her head against a hard surface) without intending to cause serious harm –

Now, the factual substratum for that, where is that found in the evidence?

MR BYRNE: We would say, your Honour, it comes from that there was this discussion between the parties the night before. There were questions asked ‑ and this comes from the evidence of the appellant – sorry, the respondent, but it also comes from the Crown case where he was questioned by police who arrived at the scene the following day and so it is there; there was this tension. What the Court of Appeal simply found was that that tension could have erupted ‑ my word ‑ in a fashion which led to an altercation such as a blow and an unintentional killing.

KIEFEL J: Well, on your submission, that allows for the inference that there was an altercation but what about the rest of the facts that the Court of Appeal adds to that. What resulted in the altercation, how it occurred – the falling, the possible striking of the head, is that not in the realm of speculation? Or are you saying that to identify that there was a mere altercation is sufficient to take it out of the area of intention?

MR BYRNE: No, the Court of Appeal – if I can just find the other passages, back to the judgment. There was a deal of background about both the respondent and the relationship, and I will not go over again what our friend has said, but it was important that there was simply no evidence of any violence or previous arguments, serious arguments between the two. That came from all three of the children who gave evidence, prerecorded evidence, as to the relationships between their mother and their father. The Court of Appeal accepted that, that there was no evidence of pre‑existing violence, domestic violence, there was never any intention or any threats or intimation of threats of harm towards her.

The Crown put this on the basis that what happened happened on the quick, if you like, that there was an explosion of emotions in circumstances where there had been obviously discussions about sensitive issues between them, but this was not a case where there had been previous violence. It was not a case where there had been threats. Indeed, our friend’s reliance upon motive which was dealt with in some detail this morning, we would submit, is not the basis on which it was argued either before the jury nor in the Court of Appeal. None of the factors such as the relationship with Ms McHugh nor the financial pressures were put before the jury or the Court of Appeal as motive in the sense of a pre‑existing reason for an intention to kill. They were put, and we have given your Honours a reference to all of those.

BELL J: Mr Byrne, this is where there seems to be some conflation between the acceptance that the case was not one of a planned or premeditated killing and the case that under the very considerable pressures that existed at the time, there was a physical confrontation in which the accused intentionally killed the deceased, either by smothering her or perhaps in some other way, possessing in that at the time of so doing, the intention at the least to do her grievous bodily harm.

To take up the question that Justice Kiefel has raised with you, the significance of the Court of Appeal’s alternative reasonable hypothesis is that there is a blow causing the deceased to fall, striking her head and thereby suffering a fatal injury and the significance of that is it is not easy, necessarily, to kill a person without intending at the least to do them grievous bodily harm. A mechanism by which that sometimes happens is a punch or forceful blow that causes a person to fall.

Take that out of the picture and the circumstance of evidence of a confrontation, taking into account the scratches on the face and all of the other circumstances on which the prosecution relied, one might think well capable of excluding other than that the accused caused the death of the deceased and in doing so intended at the least to do her grievous bodily harm.

MR BYRNE: Can we deal with that in a couple of ways, your Honour Justice Bell? The first is the Court of Appeal reference to a blow to the head. That is not out of the blue. There was, on the evidence, no injuries to other parts of the body other than a punitive, perhaps post‑mortem bruise near one of the ribs. There was a chipped tooth that could not be aged so without a natural cause of death it was not only reasonable but probably an inevitable conclusion that there was some trauma to the head region of the deceased which led to her death.

So that seems to be not, one would not have thought, controversial. The mechanism perhaps was but certainly the blow to the head was not I would not have thought, in my submission, controversial. The question your Honour then puts to me is what regard was to be had to all the other evidence of the relationship.

BELL J: Before we come to that, it is Justice Kiefel’s point that there may be evidence from which one could infer a physical altercation between the two based on the scratches to the face but something as specific as a punch or other blow that then leads to her falling and explains a death produced by force from which one would not infer an intention at least to do grievous bodily harm.

MR BYRNE: What we have here on either case was that there was something quick and, I think, the Crown used the word “efficient” that led to the death because there was seemingly no noise. The children were not awakened, so whatever occurred occurred quickly. Certainly, either from the prosecution point of view or the defence that is easily explained by a single blow which could be inflicted either with intent or simply in anger or frustration. The end result may well be the same, a death, by striking the head or some injury being done but they are the two, in our submission, hypotheses which were open to the jury.

The question was whether, having regard to all the other evidence which the Court of Appeal, we say, approached in an orthodox way that was a reasonable hypothesis which was not excluded at the trial. Does that answer, in some way, your Honour’s question?

BELL J: It prompts another, which is if that is the reasonable hypothesis and in a moment of anger there is some physical confrontation, a blow struck, not of sufficient force to bespeak an intention to do grievous bodily harm but then the deceased falls and is mortally wounded, why was it not open to the jury, having regard to all of the facts, to conclude that the lies about the scratches to the face and the post‑offence conduct was simply not consistent with that hypothesis because acceptance of that hypothesis would lead naturally to a person calling for medical assistance or something of that character?

MR BYRNE: The answer to that is, as best we can put it, this, your Honour. Assuming on either case there was that violence leading to a mortal wound, as your Honour puts to us, we have a situation where a husband has killed, to use that as a neutral term, his wife and the mother of their three children. The three children are asleep in the house. He is aware that his behaviour, at least morally, so far as other persons are concerned, is known to persons outside the circle.

The Court of Appeal explained it and we would endorse this that those circumstances were well capable of giving rise to a sense of panic and that he acted on the quick in that panicked sense and did what he did. That is the explanation or the hypothesis which the Court of Appeal gave and I do not wish to second‑guess any other hypothesis before this Court.

Going back to the other evidence that your Honour raises with me, a big part of that seems to be said to be the motive for killing. We have dealt in paragraph 4 of our oral – outline of oral submissions handed up this morning with the way in which motive was dealt with by the prosecution and, in my submission, it is quite clear that it was never put before the jury or, indeed, before the Court of Appeal. Can we add there paragraph [42] of the judgment, page 1812 deals with how it was presented to the Court of Appeal by the Crown.

GORDON J: Is that not Justice Bell’s point, that it is a conflation of premeditation and circumstantial evidence that is all of the evidence being looked at as to whether or not it is consistent with only one hypothesis than that of guilt of murder given the way in which only murder or not guilty of murder was left at trial?

MR BYRNE: We would say not, your Honour.

GORDON J: There is a difference between premeditation and looking at all the circumstantial evidence as to whether or not there is sufficient hypothesis to give rise to a guilty verdict or murder?

MR BYRNE: Your Honour, our answer to that is that the way it was put by the prosecution was that this was evidence of pressures, not motive, but pressures acting upon the respondent to cause him to act out of character and acting out of character is a long step, we would say, from having a predeterminate intention to kill another human being. Acting out of character would be to strike her because there was simply no evidence of any other physical violence or confrontation between them. So, it was – I am sorry, your Honour Justice Bell wants to ask me a question.

BELL J: It is elemental that one accepts as relevant evidence of the relations between the accused and the deceased and one can label some of this evidence as motive. Sometimes in the way the argument has been developed both here and in the Court of Appeal, there may be some confusion between ideas of premeditation and a motive in the sense of a plan to kill as distinct from looking at these pressures as making likely, indeed, providing cogent evidence explaining the circumstance that the accused comes to kill his wife where had it been the case that the evidence was all one way, they were an entirely happy couple, and it was completely inexplicable that the wife should end up dead. That is one case. That is not this case on the prosecution’s analysis of the pressures that were bearing on him that might, without any extensive planning, lead to a circumstance on that night in which he killed, intending at least to do grievous bodily harm by whatever it was he did.

MR BYRNE: We understand that, your Honour, and can we just deal with that in this sense. One needs to fully develop that proposition or to examine that proposition to look at the evidence in respect to these so‑called “pressures”. They really fall in to two categories. One is the pressure said to arise from the relationship with Ms McHugh and the second relates to financial pressures said to be bearing upon the respondent.

In respect of the financial pressures, firstly, it seems uncontroversial that the three persons, the friends who lent money to him to support the business, were not pressing for payment, and nothing had changed there. It also – this was the passage that our friends said before that was accepted by the defence in the course of address that motive was a relevant point.

Well, in our submission, if one looks at those passages in context what is being said is that certain things were put forward as possible motives at the beginning of the trial such as the insurance policy being the – if you like, the solution to the respondent’s financial situations. That went away in the course of the evidence. That is why it was being said that something that was put forward initially as a motive no longer was one. It had gone away because there was no suggestion and none pressed that that was, in any way, a reason or a basis upon which there would be an intended killing. So, the financial pressures can be categorised simply in that regard.

So far as the personal pressures, so far as the relationship with Ms McHugh is concerned, again, there needs to be an analysis of her evidence, which I am sure your Honours have at least read. A summary of that seems to be that from 2008 up to April 2012 she was being strung along, if you like, by the respondent. She speaks in the evidence of promises being made, promises being broken – that that was, in effect, the nature of the relationship between them. In respect to the specific promises which our friend took you to in the emails, she testified in‑chief that she simply did not believe that that was real on this occasion either, that he had, her words, “picked a date out of the air”. She did not believe that that would actually occur.

The other aspect of that, which I can invite your Honours to look at is the evidence of what the reaction was that afternoon with the phone call of Ms McHugh to the respondent about the upcoming real estate conference. Our friend has taken you to the passage, but it is quite apparent, when one looks at that, that there was no sense of panic; there was no sense of heightened drama, if you like, in respect to his reaction. It was “Yes, the tickets came at the last moment. Kate booked them. It is happening tomorrow”. She “loses it”, her words; he does not appear to, he just says “Well, it is happening”; and goes on, as the evidence emerges, buying sausages at the supermarket to go to a barbecue in respect of his children.

There is no sense of heightened concern that there would be this confrontation the following day. That is, in our respectful submission, somewhat of a furphy in the sense that it was a big seminar, on the evidence. Both of them knew prior to any of these events that there had been an affair between the respondent and Ms McHugh, who was still married to Allison Baden‑Clay. The chances of either of them confronting each other the next day would have been absolutely, in our submission, minimal. Hence, there appears to be no concern expressed by the respondent in respect of that.

So that pressure was a pressure that was there – that is, the ongoing relationship – but it is not something which would, taken, as your Honour Justice Bell puts to me, as a full context of the evidence to be something as to convert that explosion of events from one of unlawful killing to one of intentional infliction of grievous bodily harm.

FRENCH CJ: In terms of the way the prosecution case was put, at 1360, the trial judge in the latter part of his direction seems to be encapsulating the submissions, at about line 10, by the prosecutor:

-          an opportunity to kill;
-          scratches . . .
-          long-term tension in his relationship with his wife;
-          tension in his relationship with Ms McHugh;
-          [the financial issues];
-          discussions . . . on the night of the 19^th; and –

the conference question and then he says:

Mr Fuller contended that the case is not about pressures on the deceased. Rather, it is about a man having to deal with the consequences of his conduct.

So all those things, it seems to me – and you will no doubt correct me if I am reading this incorrectly – that that is a direction about a prosecution case on both the proposition that the accused killed his wife and that he intended to do so.

MR BYRNE: If your Honour goes on, the next sentence there, where this was being canvassed as well:

It is not suggested that the killing was premeditated.

FRENCH CJ: That seems to be understood as a temporal thing; in other words, it had not been planned a long time before.

MR BYRNE: That is so. Hence, if one goes back to those dot points that your Honour the Chief Justice points out, they are matters which were pre‑existing ‑ ‑ ‑

FRENCH CJ: Well, some of them are pre‑existing, and some of them have just emerged.

MR BYRNE: That is why I have attempted to address – the emergence of those was not something that was extraordinary. It was ‑ ‑ ‑

FRENCH CJ: No, no, I am just trying to characterise the way in which the prosecution is putting its case and the way in which the trial judge explained the prosecution case to the jury.

MR BYRNE: We do not quibble with that. That is, we submit, summarised by the fact that these things caused him to act in an uncharacteristic way or out of character. We say that that certainly encompasses, as a hypothesis, there was ‑ ‑ ‑

FRENCH CJ: Well, acting in an uncharacteristic way covers a multitude of sins.

MR BYRNE: It does, and it does not necessarily lead to an intentional infliction of grievous bodily harm, or intention to kill. That is the basis on which the Court of Appeal approached this, that there was – I am sorry.

BELL J: No. Mr Byrne, I understand your position is the fact that the accused’s account is not accepted by the jury takes us back, as it were, to a position as if he had not given evidence. That is your contention. That does seem to raise, on one view, a tension with the analysis in Weissensteiner. What is your submission in that respect?

MR BYRNE: Having appeared for the Crown in Weissensteiner, it is a principle that seems to have fluctuated in the course of time as to the weight or the approach to be taken to it. It is certainly – my understanding of what was said in Dyers and subsequent cases – no longer the principle that was espoused by the majority in Weissensteiner itself. In fact, as you would be aware, Justice McHugh who was part of a minority in Weissensteiner came to be a champion of the majority view later on, but was not in the majority of the Court in subsequent decisions. In our submission, it is not something that, if evidence was given, or even if evidence was not given, it deprives a person of there being a reasonable hypothesis consistent with innocence being considered either by the Court of Appeal, or by the jury at first instance.

BELL J: It is one thing to recognise that the fact that a person tells a lie about something does not prove the contrary, and it is undoubtedly the case that the prosecution bears the onus throughout. In a circumstantial case, where one is looking at the capacity of evidence to exclude a reasonable hypothesis, that may incline one to the view that when the accused – if it be on the facts that the accused is the only person to know something, and the accused chooses to give evidence and excludes one hypothesis by his or her evidence, then that is the end of that hypothesis.

MR BYRNE: Again, we can do little more than point to both the passages we have set in our outline with respect to Knight v The Queen and Barca v The Queen, as to there is no onus upon an accused person to raise hypotheses. The question ultimately for the Court is whether such a hypothesis is open, and in Knight’s Case, specifically where the sworn evidence did not encompass such a hypothesis.

KEANE J: But it was consistent with it. In Knight’s Case, the sworn evidence was consistent. In Knight’s Case, he said “I do not actually recall what I was doing in terms of pulling the trigger”. It is consistent with the other evidence. In this case, your client’s evidence is inconsistent with the hypothesis of innocence of murder.

MR BYRNE: That is so, your Honour; that is so. We say, as a point of principle and onus that does not exclude a reasonable hypothesis, if it exists, from being relied upon by the Court of Appeal.

KEANE J: Mr Byrne, can I ask you this, in relation to this notion of intractable neutrality? Accepting for the moment that the jury were entitled to accept that your client saw himself as being in a fix so far as his promises to Ms McHugh were concerned, and his situation with his wife, if the jury were to accept that he was conscious of a problem and that he actually did intend to keep the promises he had made in his email, that evidence insofar as it shows motive on his part – that is, a desire to be out of the relationship – that is not neutral as between an unintentional killing and an intentional killing, because an altercation which just happens, which does not lead to his wife’s death, does not solve his problem. Only an altercation that results in her death solves his problem.

MR BYRNE: Can I address it in this way. It is hard, even from taking the scenario that your Honour properly puts to us, that the intentional killing of his wife would solve any of his problems. To put it in context, as I have said – without repeating myself – Ms McHugh, over the four‑year relationship that she had with him, simply did not believe that he was going to honour any commitment. It is, in our submission, also a big step to say ‑ ‑ ‑

KEANE J: It is not a matter about what she made of him. It is about his position, what he is saying to her. He has put himself in a position, in writing, that he has declared himself, in terms of being with her by 1 July. He has confronted with the prospect that Ms McHugh and his wife might meet on the following Friday. If it is open to the jury to consider, or to conclude, that he saw himself as being in a fix, there are not any other ways out.

There is no suggestion that divorce proceedings are contemplated, much less that they could be completed by 1 July. There is no suggestion that he is intending to leave home without resolving his situation with his business and his wife. So far as the jury are confronted with this evidence about how he is thinking – not about what Ms McHugh is making of him, but what he is thinking – a mere confrontation with his wife that does not result in her death does not get him out of the corner that he has painted himself into.

GORDON J: The corner added to by the last bullet point on 1360 that he had been telling his wife the affair was over and he ran the risk that the next day his wife would find out that it was not over.

MR BYRNE: A way to solve that, if that was the principal pressure, would be simply an attempt to convince Ms McHugh not to attend the following day, or similarly to his wife. But on the evidence, so far as at least Ms McHugh was concerned, he never made that attempt, nor even seemed overly concerned that she was attending the next day.

BELL J: In that 29‑minute phone call with Ms McHugh, Ms McHugh made clear that she had no option but to go because she had only just obtained her employment. She could not fail to attend, and she was making very clear how unfair she saw it, that both of them should be present at the same conference. Ms McHugh was angry and distressed. It would be a very calm individual who entertained no thought that Ms McHugh might not confront the wife and bring into the open that the affair was very much ongoing.

MR BYRNE: Could I say this? Even when the affair was first exposed, it was not through Ms McHugh’s doing; it was through a then partner of the real estate firm. There simply was no, if you like, history of her being that type of person, and she expressed no intention of doing that the following day. As your Honour puts it, she thought it was unfair that they would both be there together, but it goes no higher than that, and it is those things which were being put to the respondent which he responds in a sanguine manner, it would seem, on McHugh’s evidence. My friend points out that she was saying he has to deal with it, and it was left there. There was no suggestion that she was going to deal with it the following day.

Your Honour, we have in our outline dealt with the other contentions which are raised. The format of the outline is to deal with what we say is the evidence giving rise to the alternate hypothesis. We deal with the authorities as to why we say this was not motive, in the ordinary sense of the word, and nothing other than that was found here by the Court of Appeal. They did not disregard it. They certainly had regard to that evidence, along with all the other evidence in the case.

Firstly, this is not a Hillier situation, where there was a piecemeal approach. The Court of Appeal specifically, on a number of occasions, stressed that they were taking into account all of the evidence, albeit on the basis it was presented to the prosecution.

We have dealt with why we say that, despite the sworn evidence, there remains a question of principle and onus as to why an alternate

hypothesis was still open to be considered by the Court of Appeal. Unless there is something further that we can assist with, those are our submissions.

FRENCH CJ: Yes.

MR BYRNE: One further thing – yes, I am reminded, this arises from something which was said in discussion with my friend, Mr Sofronoff. If your Honours go to the judgment at page 1811 in volume 4, my friend, who has the advantage of appearing in the Court of Appeal over me – he reminds that paragraphs [38] and [39] were, in effect, the submissions made on behalf of the then appellant in the Court of Appeal, although not a question of the court coming up with the same hypothesis or misunderstanding the evidence. They were submissions made on behalf of the appellant. Paragraph [40] appears to be the then respondent, now appellant’s answer to those, and thereafter follows the conclusions reached by the Court of Appeal as against those competing propositions or contentions.

FRENCH CJ: Thank you, Mr Byrne. Yes, Mr Sofronoff.

MR SOFRONOFF: Your Honours, could I invite you to go to volume 2 at 785. As we pointed out in our principal outline, the trial judge asked on a couple of occasions to be told what is the reasonable hypothesis consistent with an absence of intention to kill rather than non‑involvement, a hypothesis which he understood. At the foot of 785, his Honour asked that question:

HIS HONOUR: What is the reasonable hypothesis consistent with an absence of intention to kill?
MR COPLEY: That, on the prosecution case, death was occasioned unintentionally.

That is not a hypothesis, in our submission; that is merely a statement of what would happen if the Crown failed to prove to discharge its onus:

HIS HONOUR: There are no fractures of the head.
MR COPLEY: No.
HIS HONOUR: So there’s no suggestion that she’s fallen and hit her head on bricks or cement.
MR COPLEY: No ‑

That is the first place. The second place is in volume 3 at 1182. Your Honours saw this a little while ago. At line 20 his Honour was proposing to put into his directions this sentence:

Alternatively, the conduct in question does not tend to prove an intentional killing as distinct from manslaughter.

And at line 35, as your Honours have seen, after his Honour asked, you really want me to do this, my learned friend said:

The difficulty with leaving it in that fashion is the passage your Honour identified earlier on that the defence do not contend for it ‑

as appeared from Mr Copley’s earlier submission. Then finally at page 1216, consistently with that way of fashioning the case, moulding the case, at line 20, in closing defence submissions it was put to the jury:

Now, there are two possibilities when you think about it: (1) he has murdered his wife and disposed of the body, placed it underneath the Kholo Creek bridge in the mud. That’s one possibility on the morning of the 20^th. The other possibility is as he told you in evidence, that he was worried, that he expected Allison to either walk in the door or be found, having slipped over or hurt herself, in the near future . . . Now, they’re the two possibilities.

It is true, in our submission, that being bound by the respondent’s instructions that he was not involved in his wife’s death did not mean that the Crown is absolved from proving intent in a murder or nothing case, but in our submission it is also true on the basis of the authorities that we put before your Honours that the defence can, by its choice in that respect, exclude from the need for the prosecution to prove by exclusion or for the jury to consider a particular factual scenario, as opposed to shifting the onus of proof, which never shifts. And as a consequence of running a case in that fashion, on instructions, one result may be that if the accused person is disbelieved that might render the Crown inference stronger or indeed irresistible.

That brings us to Weissensteiner, and in response to something that was submitted, could we remind your Honours that Weissensteiner has not been overruled or reinterpreted; it was indeed approved by this case in RPS v The Queen (2000) 199 CLR 620 and in Azzopardi v The Queen (2001) 205 CLR 50.

We would also observe that if this factual scenario had arisen for the jury’s consideration, the trial judge would have been bound then to consider

directing the jury in terms of self‑defence, possibly, and certainly section 23 in terms of Stevens v The Queen, which has never been an issue in this case from trial to appeal.

As to Knight, Knight is entirely distinguishable, in our submission, because there was there direct evidence by the accused who said, “I had hold of the rifle and I did not intend to shoot anybody and I did not even know the rifle went off”. At page 504, in the passage to which your Honours were directed by our learned friends, their Honours said that the jury could reject all of that but still conclude that the killing was unintentional because the other evidence raised a factual scenario ‑ it was not an onus of proof issue – that was not inconsistent at a minimum and was consistent on one view with the evidence of the accused person. That is not this case. Those are our submissions, your Honours.

FRENCH CJ: Thank you, Mr Sofronoff. The Court will reserve its decision. The Court adjourns until 9.15 am tomorrow morning for the pronouncement of orders and thereafter to 10 am.

AT 12.39 PM THE MATTER WAS CONCLUDED