R v Badenoch
[2004] VSCA 95
•27 May 2004
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 183 of 2002
THE QUEEN
v.
FARREN DEACON BADENOCH
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JUDGES:
CHARLES, BATT and VINCENT, JJ.A.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
19 April 2004
DATE OF JUDGMENT:
27 May 2004
MEDIUM NEUTRAL CITATION:
[2004] VSCA 95
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Criminal Law – Conviction – Murder – Challenge to jury array – Whether applicant unfit to plead or unable to instruct legal representatives – Bias application against trial judge – Johnson v. Johnson (2000) 201 C.L.R. 488 – Admissibility of various parts of record of interview – Whether applicant in fit state to be interviewed – Alleged breach of duty by Crown to call all relevant and material witnesses – Alleged incompetent legal representation – Whether verdict of jury was unsafe and unsatisfactory – Application dismissed.
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APPEARANCES: Counsel Solicitors For the Crown Mr G.J.C. Silbert K. Robertson, Solicitor for Public Prosecutions
For the Applicant Case and argument presented in writing by applicant. CHARLES, J.A.:
1 The applicant chose to present his arguments for this appeal in writing, by submission of three large volumes of material containing in excess of 800 pages of submissions and evidence which were considered by the Court in addition to a lengthy transcript of the trial and the voir dire. The applicant also chose not to appear in person or by legal representative at the hearing of the appeal. Mr Silbert appeared for the Crown in this Court. With his assistance the Court gave consideration to each of the applicant’s grounds of appeal during argument which lasted nearly a full hearing day.
2 I have had the considerable advantage of reading the reasons for judgment prepared by Vincent, J.A. I agree with the reasons his Honour gives for dismissing the application for leave to appeal against conviction. The trial was heard before a judge of long experience in criminal matters, as also was counsel who appeared for the applicant. Since the applicant has made many complaints as to the conduct of both the judge and his counsel, I should say that I entirely agree with Vincent, J.A. that not one of these complaints has been shown to be justified.
3 The applicant also submits in various ways that the verdict is unsafe and unsatisfactory and that he should have been acquitted. Having carefully reviewed the evidence at trial, I agree with Vincent, J.A. that the verdict of guilty of murder was open to the jury and was neither unsafe nor unsatisfactory.
4 The application should be dismissed.
BATT, J.A.:
5 I concur in the reasons for judgment of Vincent, J.A., which I have had the considerable benefit of reading. Besides revealing his Honour’s mastery of the mass of material in this case, they demonstrate why this application must be dismissed.
VINCENT, J.A.:
6 The applicant was, in October 2001, found guilty by the jury empanelled on his trial, of the murder of his sister, Amalie Margaret Badenoch, at Mildura South, on 1 March 2000.
7 After hearing a plea in mitigation of penalty, the learned sentencing judge, on 31 July 2002, ordered that the applicant be imprisoned for a period of 14 years with a non-parole period of nine years for this offence.
8 The applicant now seeks leave to appeal against his conviction.
9 An application for leave to appeal against the sentence imposed upon him was initially lodged but later abandoned.
10 In support of his application, which he has chosen to present by way of written submissions incorporated in three folders and approximately 800 pages, reliance has been placed by the applicant upon 44 grounds[1] containing a wide variety of complaints, some of which rest upon a substantial number of separate assertions of fact and law. In my opinion, it is neither practical nor useful to attempt to recite the extraordinarily large number of contentions advanced in that material, the vast majority of which are so lacking in merit that to respond to them would be to suggest a possibility of serious argument that simply does not exist. Nevertheless, in order to avoid any possible perception of unfairness that might arise from the adoption of this course, I consider that the written submissions should be retained as part of the court file. Many of the contentions are relied upon to support more than one ground and a number of the arguments advanced are not encompassed by the particular ground or grounds to which they are related in the submissions. Having regard to the fact that neither the grounds nor the submissions have been professionally prepared, attention has been directed to the substance of the various complaints rather than the fashion in which they have been formulated.
[1]The Court early in the hearing gave the applicant leave to amend his notice of appeal as sought in his written submissions.
11 The applicant also chose not to attend the hearing of the matter and no legal representative appeared on his behalf. In the circumstances, Mr Silbert, who appeared for the Crown, was requested by the Court to draw to our attention any arguments or factual circumstances that might reasonably operate in the applicant’s favour when considering the application. He informed us that he was not aware of the existence of any such matters.
The Background
12 Amalie Badenoch, in the words of the learned sentencing judge, “led a sadly troubled life”[2]. It was undisputed that she had for a number of years prior to her death suffered from a serious drug problem and a severe personality disorder. She possessed a propensity for violent behaviour which included the use of weapons, particularly when she was affected by alcohol or drugs.
[2]Sentence, T750
13 The deceased had long been estranged from the applicant, her older brother, until, in 1999, he returned to the Mildura area and attempted to repair the rift. There was evidence at the trial that the applicant and his family used to visit the deceased at her home on a fairly regular basis until around the end of 1999 when, for some reason, a serious deterioration in their already fragile relationship developed. This situation became manifest during the late evening of 29 February 2000, that is approximately 24 hours prior to death of the deceased, when an incident occurred between them at the Woolworths Supermarket in Mildura. There was dispute at the trial concerning who initiated the confrontation and its commencement was not observed by any of the witnesses called. There was evidence, however, given by friends of the deceased, of statements made by her that she head-butted the applicant. Whatever may have precipitated his actions, there would seem to have been no dispute that he punched his sister in the face, grabbed her by the head and threw her into a supermarket trolley. He also accepted, as I understand his position in the trial, that he struck her with his knee around her shoulder, neck and head. When the police were called, the applicant told them that he had responded in this fashion as she had head-butted him and indicated that he wanted her charged.
14 Following this incident, and whilst they were still present at the supermarket, an abusive verbal exchange took place between the applicant and the deceased. One of the witnesses to what occurred, Robert Wilson, recalled that the applicant said that it was “not finished” and that the deceased was “gone”. He said that he saw the applicant draw his index finger across his throat horizontally.
15 During the next several hours, the deceased contacted a number of friends by telephone to tell them about what had taken place. According to each of these witnesses, she appeared to be in an extremely aggressive state of mind. To one, Elizabeth Cheyne, she complained that the person who had hit her had been arrested, but had been released and no one was going to do anything about the matter. To another, Kerryn Donnell, she indicated that she was going to do something about it. In a later telephone call, she requested the same witness to take her to the police station and remain with her while she lodged a complaint. She also told Ms Donnell that she was going to kill the applicant.
16 Some time after 2 p.m. on 1 March 2000, Julie Brennan, the Koori co-ordinator at the Mildura Primary School, spoke to the deceased at the school. She said that the deceased told her that she was going to “get” the applicant and that one of them would die. This witness formed the opinion that the deceased was very angry and appeared to be determined to exact revenge upon him.
17 Leanne McNulty stated that, during the late afternoon or early evening of that day, she also received a telephone call from the deceased who told her that she was going to kill the applicant.
18 At about 8.30 p.m., Elizabeth Cheyne received a further telephone call from the deceased. She told this witness that she was going to deal with the person who had hit her the night before and that she was going to ram his car.
19 She told another person, Douglas Gray, who called her at about 8.45 p.m. that she was going to see the applicant to ask him why he had assaulted her.
20 There was evidence from the deceased’s 12 year-old son, Sandawarra, that he sat in the front passenger seat of the deceased’s motor car as she drove to the Sun Siesta Caravan Park, at which the applicant was residing, on the evening of 1 March 2000. She told the boy that she was going to ram the applicant’s car because he had hurt her on the previous night.
21 Whatever may have been the precise circumstances of the events of the night before, it is, I think, reasonable to infer that the jury would have inevitably concluded, as they were invited to do by both Counsel, that the deceased went to the caravan park in an extremely aggressive state of mind and for the purpose of exacting some form of revenge. The principal areas of controversy related to what took place once she arrived there.
22 Two residents of the park, Ronald and Tina Sedgley, gave evidence that they saw the deceased driving her vehicle through the park at an excessive speed and in a dangerous fashion.
23 She was observed by four witnesses, Kylie Madigan, Natalie Dawes, Tina Sedgley and Stephen Kindred, to drive across a grassed area in the direction of the caravan occupied by the applicant. She applied the brakes and her car skidded, stopping just short of the caravan’s awning. The vehicle was reversed and then driven into the driver’s side door of the applicant’s yellow Sigma station wagon. She reversed again until the back of her car struck a tree, causing the engine to stall. The car rolled forward and came to rest across the roadway.
24 Kylie Madigan gave evidence that the deceased stepped from the car and walked towards the applicant’s caravan. Finding that the front door was locked, she screamed words to the effect, “I’m going to kill you, open that fucking door.”
25 Tina Sedgley stated that after the deceased’s car stopped, the applicant came running from his caravan and the two started exchanging verbal abuse.
26 Sandawarra said that after his mother had collided with the applicant’s car, they were reversing when the applicant came from the caravan, ran to the car and, through the open window, punched the deceased twice to the side of the head. He then reached in and removed the vehicle’s car keys. The applicant then walked around to the front of the vehicle, picked up something from the ground near the left front tyre and commenced to walk towards the front kiosk of the caravan park. The deceased and Sandawarra got out of the car. His mother instructed him to lock the doors. She had, apparently, left one of her shoes in the vehicle and carried the other in her hand as she proceeded to walk after the applicant. He said that he heard Natalie Dawes, the de facto wife of the applicant, who was standing outside the caravan, call out that the deceased had a bottle or knife.
27 Dawes stated that she had come out of the caravan and, observing the damage to the vehicle, screamed out “She smashed my car”. She heard the applicant call “Where’s my shorts.” She then went back into the caravan, located his shorts and returned to the front door where she passed them to him. According to Dawes, at that stage the deceased was still in her vehicle. She said that she next saw the deceased and the young boy standing outside the deceased’s car while the applicant was walking towards the caravan park kiosk. She said that the deceased slapped the boy and heard her say “Don’t ever let me hear ‘please uncle’ again.” The deceased then went to the front of the passenger side of the car and looked for something in the vehicle. Dawes then observed the deceased and the boy run in the direction of the applicant and she called out to him “Watch out, she’s got a bottle behind her back.” The deceased said, “It’s a shoe.” According to Dawes, the applicant continued to walk towards the kiosk.
28 Tina Sedgley gave evidence that after the deceased’s car had stopped, the applicant came running from his caravan and started arguing with her outside the vehicle. They exchanged verbal abuse, which included talk of killing themselves and each other. She saw them swinging punches at each other, and said that the deceased was the first to do this. She saw them both trip and fall to the ground next to the passenger side of the car. The deceased crawled around to the front of the vehicle. The applicant stood up and chased after her. She heard Dawes call out that the deceased had something behind her back and saw the deceased turn and shout to Dawes “It’s my shoe, you stupid bitch.” She then saw the deceased run towards the kiosk followed by the applicant. She then saw one of the two was on the ground while the other was standing, kicking and punching. She could not make out which of them was on the ground due to poor light and said that they were fighting, shouting and screaming.
29 Sandawarra said that his mother walked quickly towards the applicant who was ahead of them and proceeding in the direction of the kiosk. The deceased demanded that he return her keys to her. He said that the applicant turned, walked back towards her and punched her in the face with his fist. The boy saw an object in the hand of the applicant but could not make out what it was. The deceased staggered and the applicant then took hold of her by restraining her arms. They both fell to the ground. The boy heard his mother say “Help”. The applicant said to him “Go to the front kiosk.”
30 A resident at the park, Dulcie Marlow was watching television when she heard a male voice shouting outside. She then heard a sound “as if someone had hit someone else”. Afterward she heard a moaning noise. She heard a male voice shout words to the effect “Keep away from her, she is dangerous.”
31 Stephen Kindred stated that he saw the applicant come out of the caravan and punch a window of the deceased’s car with his fist. The window was still closed at the time. He then saw the applicant walk back towards the caravan and Kindred went to a neighbour’s van. This witness said that he stepped out about half a minute or so later and saw the applicant walking up the road in the park towards the kiosk. He was not able to see whether the applicant was carrying anything. The applicant then passed some caravans and out of Kindred’s sight. He heard what he described as “two or three quick yelps from a female voice”.
32 At about 9 p.m. the caravan proprietor, James Baxter, received a telephone call as a consequence of which he contacted the police. He saw the applicant and Dawes outside his residence. He saw that the applicant was wearing shorts and that there appeared to be blood on the front of them. Baxter picked up a torch and they went along the roadway until they came upon the deceased lying on the ground. There was blood on her clothing and he heard a groaning sound. He saw a stab wound when he lifted the bottom end of her T-shirt. He called his wife who was a registered nurse. She checked the deceased’s carotid pulse and was unable to detect any sign of life.
33 Senior Constable Kelly attended at the caravan park. He gave evidence of a conversation that he conducted with the applicant, referring to notes taken at the time. He said that the applicant identified himself as the deceased’s brother and explained, “We were wrestling around. I don’t know what went wrong”, and when asked why, the applicant is recorded as having said “We’ve been blueing for some time last night.”
34 According to Dawes, soon after the police had attended, she spoke to the applicant who said “I did it. It’s not our knife. She must have brought it with her.”
35 Ronald Sedgley said that he also spoke to the applicant after the incident and was told “I think I’ve gone too far this time. I think I’ve killed her.” A little later, when an ambulance arrived, he went with the applicant to have his foot treated. There were police in attendance at that stage. The applicant and he then went to the witness’s caravan where Mr Sedgley loaned him a Dolphin torch.
36 After marking off relevant locations with crime scene tape, Senior Constable Kelly spoke to the applicant again. He asked “Amalie has got some cuts on her, how did that happen?” The applicant replied, “She had a knife. I didn’t want to tell you before.” He then asked “Where is the knife now?” The applicant responded “On top in the caravan.” Senior Constable Kelly’s attention was drawn to the fact that the applicant had an injury to his left big toe. The applicant then requested medical attention.
37 Dulcie Marlow said that a man came to her door and asked if he could borrow her torch. She opened her door a little and pushed a torch out. She then closed and locked the door. She noticed that this man was wearing shorts.
38 Tina Sedgley saw the applicant apparently searching for something with the aid of a torch. She asked him what he was looking for and he provided several different responses. They included statements to the effect that he was looking for whatever it was that the deceased had behind her back; he was not sure; he was checking to see if the deceased had anything; and that he was looking for a knife.
39 After these occurrences, the applicant was taken to the Mildura Police Station. Soon after midnight, he was examined by Dr Gerald Murphy who observed that he was vomiting into a waste paper basket. There was blood-staining on the applicant’s shorts and blood-staining near his left wrist. Dr Murphy observed a fresh graze on the point of the applicant’s left elbow, bloodstained skin on the right elbow, a superficial graze over the back of the right chest and a fresh deep graze over the inner side of the applicant’s left knee. The applicant had an old infected blister on the underside of his left big toe. Dr Murphy enquired as to possible causes of the vomiting, nominating some. However, the applicant denied that any of them were present. He attended the station to review the applicant’s health about 24 hours later. However, the applicant appeared agitated and refused to see him.
40 At the police station, a series of conversations took place before a video tape-recorded interview was conducted by members of the Homicide Squad with the applicant. This commenced at 11.06 a.m. on 2 March 2000. In that interview, the recording of which, I should indicate, I have taken the opportunity to play, the applicant stated that, after the deceased had rammed his car, he had come out from his caravan and punched her while she was still in the vehicle. He removed her keys and he walked away, but was pursued by her. A physical altercation developed, during which he punched, kicked and wrestled with the deceased. He denied having stabbed her or ever having previously seen a knife which was shown to him. He said that the deceased must have brought it with her. He had searched for it after the incident and had taken it into his caravan in order to avoid his sister being charged with the commission of a serious offence. During the course of the interview, he suggested that the deceased must either have intentionally or accidentally stabbed herself.
41 There was evidence that the Homicide Squad members returned to the Sun Siesta Caravan Park where they spoke to Dawes. She identified one of a number of knives shown to her as one which had been in the cutlery drawer of their caravan.
42 The applicant was interviewed again and was recorded, using audio tape equipment at the Mildura Police Station. In that interview, he stated that he had taken the knife with him when he left his caravan and went to confront the deceased. He explained that he had lied about this as he was concerned that he would be charged with murder. He said that he had tucked the knife into his shorts with the blade protruding upward. After his taking the keys from the deceased’s vehicle, she had pursued him on foot as he walked towards the front office. He said that in the ensuing physical fight, he punched, kicked and wrestled with her. He was unable, he said, to explain how she had come to be stabbed.
43 Dr Shelley Robertson, a forensic pathologist employed by the Victorian Institute of Forensic Medicine, conducted a post mortem examination of the deceased. She expressed the opinion that death had resulted from haemorrhage following an unusual injury to the upper abdomen which damaged the splenic vein. Dr Robertson said she observed a vertically oriented incised wound in the centre of the abdomen, just to the left of the naval. The wound track passed almost directly backwards into the body and probably deviated slightly downwards. She was unable to provide more than an approximation of its depth which she estimated at several centimetres. The wound was consistent with a single knife blow inflicted using moderate force.
44 In cross-examination, she accepted that beyond saying that the wound was more than two-and-a-half centimetres, she was unable to express an opinion as to its depth.
45 At the trial, the applicant made a number of admissions pursuant to s.149A of the Evidence Act 1958. They included an admission that the deceased died at the Sun Siesta Caravan Park at about 9 p.m. on 1 March 2000 as a result of a knife wound to the abdominal area. He admitted that the knife was removed by him from the kitchen drawer of his caravan shortly after the arrival of the deceased, and that he returned it to his caravan and placed it in the sink. He admitted that that knife bore his right thumbprint.
The Proceedings
46 In view of the nature of some of the grounds of the application for leave to appeal in this matter, it is, I think, necessary to set out some parts of the history of the legal proceedings that followed the death of the deceased.
47 On 28 September 2000, after a contested committal hearing, the applicant was committed for trial before the Supreme Court on the charge of murder. He entered a plea of not guilty.
48 On 16 January 2001, he was arraigned on presentment on this charge.
49 On 8 August 2001, he was presented in the Supreme Court at Mildura for trial.
50 Between 8 August 2001 and 10 August 2001, a hearing on the voir dire was conducted with respect to the admissibility of tape-recorded interviews conducted by the police of the applicant.
51 On 13 August 2001, the trial judge was advised by Mr Hartnett, counsel appearing for the applicant, that he understood his client intended to withdraw his instructions. The matter was then adjourned to the following day.
52 On 14 August 2001, Mr Hartnett confirmed that his instructions had been withdrawn. The matter was adjourned for mention on the following day.
53 On 15 August 2001, Mr Drazetic of Victoria Legal Aid advised the Court that funding for the trial had been confirmed and that Mr O’Doherty of counsel would be briefed to appear for the applicant. The trial was set down for hearing on 8 October 2001.
54 On 9 October 2001, the trial commenced before the same judge and a jury was empanelled. Counsel requested the trial judge to adopt the evidence previously adduced on the voir dire for the purpose of determining the admissibility of the evidence of the various interviews. His Honour agreed that it would be appropriate to adopt this course and received submissions based on the previously adduced evidence.
55 On 17 October 2001 the prosecution closed its case. The applicant called no evidence.
56 On 19 October 2001 the jury returned their verdict.
57 On 5 February 2002, the applicant’s plea in mitigation was called on for mention before the trial judge. His Honour was advised that the applicant’s legal representatives could no longer act and that steps were being taken to arrange alternative representation. The applicant submitted that his Honour should disqualify himself form the further hearing of the case. The hearing of the matter was then adjourned.
58 On 13 March 2002, the applicant’s plea in mitigation was called on for hearing. He appeared in person and Mr D’Arcy of counsel appeared on behalf of Mr Drazetic on whom a subpoena to give evidence had been served. His Honour heard and dismissed applications that he disqualify himself and that the proceeding be stayed as an abuse of the process of the Court.
59 The matter came back before the Court on 17 April 2002 and 30 May 2002.
60 On 16, 17 and 31 July 2002, counsel for the applicant presented a plea in mitigation of penalty.
61 On 31 July 2002, his Honour imposed the sentence of imprisonment for 14 years with a non-parole period of nine years.
The Prosecution Case
62 In his charge to the jury, the trial judge, Coldrey, J., summarized the Crown case as follows:
“On behalf of the Crown, Mr McDermott told you that the evidence revealed a stormy and violent relationship between the accused and his sister, particularly in the 24 hours before Amalie Badenoch’s death. The supermarket incident revealed that the accused was ill-disposed to his sister and it was Mr McDermott’s submission that the accused initiated the violence on that night. Additionally, the evidence of witnesses who spoke to the deceased prior to her going to the caravan park, suggested that the deceased had some intention to obtain vengeance for what had occurred at the supermarket to even the score. This was the background to the events of that evening and to your decision as to whether the Crown had satisfied you of the guilt of the accused.
…
Turning to the cause of death, Mr McDermott submitted you should have no difficulty in deciding that the cause of death was the stab wound with its resulting haemorrhage. That was the evidence of Dr Robertson. You should be in no doubt that this was a deeply penetrating injury going through the left lobe of the liver and ending, as it did, in slicing the splenic vein.
The Crown rely on the depth and track of the wound as making quite illogical and fanciful any suggestion that it was inflicted accidentally by the accused. It was caused, submitted Mr McDermott, by the deliberate use of the knife by the accused.”[3]
…
“Turning to the accused’s state of mind at the time of the stabbing, Mr McDermott put to you that the accused claimed in the second interview to have armed himself for protection. It follows that the accused had deliberately armed himself with the knife at an early stage with the intention of using it if necessary. The compelling inference was that the knife was in his hand, given the lack of injuries to his abdomen. Mr McDermott submitted that the accused decided to use the knife and stabbed his sister.
Mr McDermott submitted the relationship of the accused had reached the stage that the accused decided to stab her and he was not acting in self-defence. Even if his sister rushed at him and might have had a bottle – to his mind – and even given the sister’s reputation and background, was the response of the accused out of proportion to any danger he believed he faced? Mr McDermott submitted it was. He said he did not retreat at any time and any danger his sister represented to him did not warrant the use of the knife.
Accordingly, Mr McDermott submitted, the accused was not acting in self-defence.”[4]
[3]T626-628.
[4]T630-631.
The prosecutor also addressed the possibility that the applicant may have acted under provocation and whether he may have been guilty of manslaughter through the commission of an unlawful and dangerous act. I need not deal with those aspects.
The Defence Case
63 Mr O’Doherty, who appeared for the applicant, in his final address submitted to the jury that:
“Mr Badenoch’s position here of course is that this is a tragic accident. That is it from start to finish[5].
…
He wasn’t looking for trouble. Mr McDermott says that this man intentionally stabbed and killed his sister. This man, in my submission, was doing everything that he could reasonably do to avoid a confrontation. He had immobilised the car, thus preventing any further damage; he had left the scene, just dis-engaged himself from her and headed off up to get help, that’s where he was going. Had she sat in the car he’d have no doubt got to the office and a phone call would have been made, something different might have happened – but he didn’t get to the office. We now know what happened.
And young Sandawarra, tragically for him, saw most of this unfold in front of him. He told you that what he saw was his uncle restraining, that’s his word, ‘restraining’ his mother; holding on to her, with his arms around her and his legs entangled in hers and whilst in that position, he was asking the boy to go to the office.
There is no suggestion by that young boy that Mr Badenoch had a knife in his hands. The clear impression, clear observation, if you like, of the boy was that his uncle was trying to hold his mother and restrain her, stop her. Not to inflict injury on her, not to kill her, not to stab her.
We know what happened now, that they fell to the ground and we know that she suffered a fatal wound.
…
How do you know when that wound was inflicted; how do you know she was standing up when it happened? Have you got any idea when it occurred, was she on the ground; was she crouched over; was she on her back; was it during the time that he had her in the bear hug pulling her head down? Was it before Sandawarra asked his uncle to stop, before or after Mr Badenoch asked Sandawarra to go to the office? You’ve got no idea; no one has any idea.
Did she get hold of the knife? I’m not seriously suggesting that she did this to herself, but Dr Robertson says it’s consistent, in any other way it’s not inconsistent with being self-inflicted. I’m not saying that she did it, I’m not asking you to accept that she did, there’s no evidence that she did it to herself. There’s no evidence that he did it deliberately to her; there’s no evidence that he even knew he did it until afterwards.”[6]
[5]T519.
[6]T510-511.
64 The trial judge summarized the defence case as follows:
“Mr O’Doherty said that there is no doubt there was an unseemly incident at the supermarket. It was claimed by the Crown that it demonstrated that the accused was ill-disposed to his sister and the aggressor. Mr O’Doherty submitted that the evidence indicated that the deceased was the aggressor. Further, it was the deceased who worked herself up into a frenzy on the day of the incident at the caravan park. The deceased was the one who demonstrated ill-will towards her brother.
On that evening it was the deceased who came to the caravan park with an intention of causing damage. She deliberately rammed the car. This was no accident.
Mr O’Doherty submitted that Mr Badenoch, being close to his sister, had a good knowledge of the deceased’s volatility, her capacity to indulge in violence. Consequently, he would know of the possibility of something serious occurring to himself or his family. While he took possession of the knife, the intention of Mr Badenoch right up until the end was to enlist the aid of the authorities. Indeed, he directed Sandawarra to go to the office. The accused was not looking for trouble, submitted Mr O’Doherty.
The accused did not deliberately stab his sister intending to kill her. In fact he was doing everything to avoid a confrontation. He had immobilised the car preventing further damage and he had gone off to obtain help. He disengaged himself from her.”[7]
[7]T634-635.
The Judge’s Charge
65 There is no need to set out the matters covered by the trial judge in his charge to the jury. It is sufficient to state that there has been no complaint advanced as to the accuracy or adequacy of the charge itself. On examination of the transcript, it has become clear that his Honour provided the jury with appropriate instructions on all relevant matters of law. They included directions on the onus and standard of proof in a criminal trial, inferential reasoning, the elements of murder and manslaughter, including the concepts of self defence and provocation. He identified the issues raised by the prosecution and the defence in the presentation of their respective cases and related the principles of law to the evidence and those issues.
The Grounds of Application
Ground 1
Challenge to the jury array
66 Prior to the selection of the jury, on 9 October 2001, counsel for the applicant informed the trial judge that his client objected to the composition of the panel from which it was to be chosen as he, an Australian aborigine, had not observed anyone that he identified as an indigenous person in it. It was asserted that the panel was therefore unrepresentative of the Mildura community in which the trial was being conducted and in which it was well known that many persons of indigenous origin resided. There was, however, no contention advanced that, assuming that the observation was correct and that, based upon external appearance, there was no such person in the panel[8], the fair trial of the applicant could be perceived as likely to be compromised in any specific respect. Although not so expressed by counsel, his Honour appropriately approached this submission as a challenge to the array and governed by the principles applicable to such applications.
[8]This assumption may not have been correct and could have been perceived as extremely offensive to any aboriginal person present if it was not the case.
67 When the complaint was drawn to his attention, he made the comment:
“I might say that my preliminary view, without knowing what any authority is, is that the submission is spurious. Whether you’re an Aboriginal Australian or a European Australian or a Turkish Australian, you’re an Australian, you’re part of the panel, you’re part of the community.”[9]
[9]T27-28.
68 Only a moment’s thought is required to appreciate the force of that remark and to perceive the terrible consequences which could result if criminal juries in this country were selected on the basis of some ethnic or other discriminatory criteria. The arguments against the adoption of such modes of selection are so obvious and so powerful that they do not need to be set out here. It is necessary only to point to the complex multicultural character of the Australian society in order to indicate the practical problems which would be confronted, setting to one side the fundamental departure from the principles upon which our society is based, and the nature and role of the jury function in a criminal trial in it that would be involved. In any event, as the judge remarked after he had familiarized himself with the authorities in which the question had been considered, it is simply not the law that a jury must contain one or more members of the accused’s ethnic, cultural, gender or age group in order to be validly constituted.
69 In his ruling, his Honour referred to what was said by McInerney, J. in R. v. Grant and Lovett concerning a similar application:
“The compiling of a jury list and the summoning of jurors for service in a particular case proceeds on the basis of a random selection of names. In such a random selection it may well come about that a panel emerges, in the end, as being of some general overall pattern as to occupations or income, but unless it is shown that this is a result of some deliberate contriving of the sheriff, it does not appear to me that this constitutes a ground for setting aside the panel.”[10]
[10]R. v. Grant and Lovett [1972] V.R. 423 at 425.
70 There was nothing before his Honour that could be seen to raise the possibility that the panel had not been assembled in compliance with the provisions of the Juries Act 2000 which were applicable[11] or that, by reason of possible impropriety or breach of duty or for some other reason, a problem could be seen to have arisen with respect to its composition.
[11]See s.2(3) and Schedule 6.
71 His Honour’s rejection of the complaint was in accordance with the view adopted in the authorities to which he directed attention[12] and, in my view, was correct in principle.
[12]His Honour also referred to R. v. Thomas [1958] V.R. 97 and the relevant passage in Fox Victorian Criminal Procedure and to R. v. Greer (1996) 84 A.C.R. 482.
72 This ground must fail.
Grounds 2 and 3
“2. The trial judge erred in law when he permitted the trial to continue after being furnished with uncontradicted evidence from a registered medical practitioner that there was a real and substantial question as to the stability of the defendant’s mental state, in that he failed to meet his obligations pursuant to the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 once the question had arisen.
3.Once the trial judge was in possession of uncontradicted evidence from a registered medical practitioner that there was a real and substantial question as to the stability of the defendant’s mental state, a failure to act pursuant to Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, vitiated the entire trial process which followed, and it creates such doubt as to the guilt of the defendant, that the verdict is a nullity.”
73 As indicated in the chronology set out earlier, the applicant was first presented for trial in the Supreme Court at Mildura on 8 August 2001, and the trial judge commenced a hearing on the voir dire with respect to the admissibility of some tape-recorded police interviews. On 13 August, Mr Hartnett of counsel who had been appearing for him in that proceeding, informed his Honour that he understood that his instructions had been withdrawn. However, he wished to await the arrival of Mr Drazetic whom he described as “a representative of Victoria Legal Aid” before he made that announcement. The position was confirmed by him on the following day.
74 Mr Hartnett then applied for a variation of the applicant’s bail conditions saying:
“My former client wants to go to Melbourne, ... he’s been feeling very stressed about the last few days and wants to go to see a psychologist via the Aboriginal Medical Service. Your Honour, he would seek a variation of the bail conditions to that end for two weeks, to go to Melbourne.”[13]
[13]T192.
The prosecutor responded:
“If Mr Badenoch truly has some serious psychological or psychiatric problem, then that be another thing but I would like to hear some evidence about that before Your Honour just took that at face value.”[14]
His Honour then said:
“I think if Mr Badenoch wants his bail varied to go to Melbourne, rather than see a psychologist up here; I would need some evidence about that. The fact is that anybody facing a murder trial is stressed.”[15]
[14]T196.
[15]T197.
75 After further discussion, his Honour indicated a letter from the Aboriginal Medical Service would suffice for this purpose. On 15 August, Mr Drazetic informed him (inter alia):
“Your Honour, in addition I have also been in contact with the Victorian Aboriginal Health Service and have now received a faxed letter[16] in relation to the matters that Mr Hartnett mentioned yesterday. We would seek a bail variation for two days, namely Monday 21st and Tuesday 22nd, for Mr Badenoch to travel to Melbourne and to be examined and consulted by Dr Clare Stainsby, who has seen him previously in respect of medical issues and other matters.”[17]
After perusing the letter, his Honour made the requested order.
[16] Relevant portions of that letter read:
“Mr Farren Badenoch has been a patient of this practice since 1997. I have reviewed his Medical Records here and find that in 1997 he attended for counselling with Anton Provan, who was a counsellor at this service. This counselling was about dealing with violence and disagreements and anger management. I have seen him as a patient on two occasions, both in this year. He saw Dr Liz Moore and orthopedic specialist Mr Rush for a knee injury in 1998.
This year I have seen Mr Farren Badenoch on 2 occasions, on 21/05/01 for problems of R shoulder muscle wasting and nerve pain following an electrical injury, abdominal pain from Gastro-oesophageal reflux and asthma. He also complained of stress and worry regarding an [impending] court case surrounding allegations of the Murder of his sister.
On 22/06/01 I again saw Mr Farren Badenoch in a consultation. On this occasion he was very stressed about the court case coming up, he described feeling a great deal of stress about the prospect of facing Gaol. At this time I believed him to be suffering from an acute stress disorder. He also still suffered from muscle and nerve pains in his R shoulder, and Gastric reflux.
From his medical records and from my consultations with the patient it is my opinion that he has a stress or adjustment disorder following the death of his sister and the accusation of murder charges that he is facing currently. It is possible that with the actual trial now running that his pre-existing psychological problems could be aggravated. Any worsening of his psychological or psychiatric state needs to be assessed by an appropriate psychiatric team.
If he is not at urgent risk of self harm it would be appropriate for him to be referred to our health service where we can make arrangements for psychiatric assessment as an outpatient, or if necessary an inpatient. If he is in immediate risk urgent assessment should be sought as soon as possible in Mildura, or referral made to the Koori Psychiatric Inpatients Unit at St Vincent’s Hospital Melbourne.”
[17]T203.
76 The letter of Dr Stainsby[18], it should be noted, was written two months prior to the commencement of the trial at which the applicant was convicted and without the opportunity of a prior consultation with him. It did little more than indicate that the applicant was extremely stressed, point to possibilities and sensibly suggest that his situation required careful monitoring. There was certainly nothing in it which could be seen to cast upon the trial judge an obligation to conduct a hearing into his fitness to stand trial when the matter came before him two months later. No reference was made to the possibility that he may have been unfit to plead or instruct his legal representatives and there was nothing in the circumstances that might have suggested to a trial judge that the applicant may have been disadvantaged in the trial process.[19]
[18]See footnote 16.
[19]Section 6 of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997 states:
“6. When is a person unfit to stand trial?
(1)A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be –
(a)unable to understand the nature of the charge; or
(b)unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c)unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d)unable to follow the course of the trial; or
(e)unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f)unable to give instructions to his or her legal practitioner.
(2)A person is not unfit to stand trial only because he or she is suffering from memory loss.”
See also R. v. Presser [1958] V.R. 45; R. v. Kesavarajah (1994) 181 C.L.R. 230.
77 These grounds also cannot succeed.
Grounds 4-11
“4.The trial judge erred in not disqualifying himself after the defendant made an application that any reasonable lay observer of the proceedings would have formed the view that the trial judge was biased against the defendant.
5.The trial judge erred in applying a ‘personally subjective’ test as to the question of bias when he should have applied the ‘from a reasonable lay observer’s point of view’, test.
6.The trial judge erred in not allowing the defendant to put arguments within the bias application, namely:
(a)that an inappropriate relationship developed between the Crown and the defence counsel at the urging of the trial judge about his upcoming sabbatical and his travel plans and the time table for hearing the trial;
(b)that the dishonest activities of the Crown in withholding evidence led the trial judge to bias and the Court to a miscarriage of justice; and
(c)that the incompetent conduct of the case by defence counsel led the trial judge to bias and the Court to a miscarriage of justice.
7.The trial judge erred in not allowing the defendant to call a witness to further the bias application, namely one Steven Drazetic.
8.The trial judge erred in ruling that calling witnesses on the bias application would fragment the trial process.
9.The trial judge erred in not answering the defendant’s submissions in relation to the application that he dismiss himself because of bias, in relation to the following issues:
(a)suspicion of bias;
(b)ostensible bias; and
(c)bias which allowed the proceedings to become an instrument of unfair oppression.
10.The trial judge erred when he demonstrated bias which would have been plain to any reasonable lay observer.
11.The trial judge erred when he claimed at trial, on 13 March 2002, that he had not read the depositional material and therefore he denied the defendant the opportunity to be fully heard in relation to aspects of a bias application.
78 There is, upon examination of the transcript, nothing capable of supporting any of these assertions. The test to be applied when addressing the possibility of the presence of some bias in legal proceedings was the subject of attention by the High Court in Johnson v. Johnson where it was said by five justices to be:
“… based upon the need for public confidence in the administration of justice. ‘If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision.‘ The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial‘.
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.‘ Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”[20] (Footnotes omitted.)
[20]Johnson v. Johnson (2000) 201 C.L.R. 488 at 493.
79 With respect to specific claims made, I observe, for example, that the complaint made in ground 6(a) is based upon a typographical error in the transcript. The trial did not commence until after his Honour returned from leave which was taken in September and not October as indicated. However, the discussion which took place with counsel at the August hearing concerning the arrangements for the new trial is informative in more than one respect and bears upon several assertions made about his Honour’s conduct. It is apparent from the transcript that when he learned of the dismissal of Mr Hartnett by the applicant, he became concerned about a number of possibilities. Among them was the response that might be made by the legal aid authorities to the applicant’s dismissal of his experienced counsel. Substantial amounts of money had been expended to that stage which could be viewed by them as thrown away and the possibility existed that funding could be withdrawn. Mr Drazetic informed him, however, on 15 August that that would not occur. Although his Honour had been told by Mr Hartnett on 14 August that the applicant had indicated that he did not wish to dispense with the services of Mr Drazetic, it was appreciated that some time would be needed for the new counsel to become familiar with the material. Mr Hartnett also said that the applicant had stated that he had become aware of some further witnesses within the previous four days and that the explanation of their potential relevance might necessitate some further delay. His Honour was troubled by the emergence of the unidentified persons at such a late stage. He was also aware that County Court sittings were due to commence in the Mildura Court House on 27 August. Accordingly, there was clearly little prospect that the trial could be conducted before he went on leave in September. Enquiries were made and it was fixed for hearing in October after his return.
80 There is no basis upon which the discussion concerning these matters could be reasonably perceived as inappropriate, viewed from the perspective of the judge’s conduct, or as calculated to develop an “inappropriate relationship between the Crown and the defence” as claimed in ground 6(a). Certainly, the relatively short delay in the commencement of the trial cannot be seen to have adversely compromised the fair trial of the applicant in any respect. If anything, in view of the change in the applicant’s legal representation which occurred in August, it may well have operated to his advantage in the sense that he had more time to instruct his new counsel and for his representatives to prepare his defence.
81 Ground 7 is misconceived. The applicant sought to subpoena Mr Drazetic to give evidence at the March hearing in support of the bias application, arguing that his Honour was “led into bias from the things that were going on that probably you were not aware of. You were not aware of them simply because you haven’t heard them and if you hadn’t heard them then you can’t judge.” The judge then directed the applicant to the four grounds which he had advanced. They were:
“1.That the dishonest activities of the Crown by withholding evidence had led him to bias;
2. that he was so led by the incompetence of defence counsel;
3.the lack of diligence on the part of his Honour in not reading the depositions; and
4.that comments made by his Honour in the course of the trial indicated prejudgment.”
82 Rather than repeat the trial judge’s response to the various complaints, his ruling on the bias application is attached as an appendix to this judgment. I add however that, on my reading of the material, there were no comments made by him at any stage, whether before or after the trial, or during the plea hearing or in his sentencing remarks, that contained any suggestion of bias against the applicant or pre-judgment by his Honour.
83 The trial judge clearly did not apply a “personally subjective test” when considering the application to disqualify himself as asserted in ground 5. In his ruling, he specifically referred to the decision of the High Court in Johnson v. Johnson[21] and concluded:
“Having listened to your submissions, it is my view that nothing raised in them would warrant me disqualifying myself or, alternatively, staying these proceedings as an abuse of process.”[22]
His Honour’s use of the expression “it is my view” cannot be seen as raising the possibility that, as a very experienced trial judge, he was unaware of or did not apply long-recognized principles of law with respect to applications of the kind before him, or as suggesting that he may have been applying some subjective test, but to indicate that he had applied those principles in the instant case.
[21]Supra.
[22]T62a.
84 Ground 8 appears to have been based upon a misreading of the transcript of the hearing of 13 March 2002 when the bias application was made. The only reference to the undesirability of fragmentation of the process was made by counsel appearing on behalf of Mr Drazetic. There was no ruling made by his Honour which can be seen to bear upon the question and no suggestion in any of his remarks that a desire to avoid “fracturing the proceedings” played any part in his reasoning with respect to the application before him.
85 Ground 11 is also misconceived. His Honour made it plain that he was concerned to ensure that his approach to a challenge as to the admissibility of admissions made by an accused in a police interview would not be influenced by material or information not properly taken into account. He explained his view to the applicant as follows:
“For your own information I should tell you that it is not my practice to read the depositional material when I’m aware that there will be a voir dire and some of that material will be challenged as inadmissible in evidence. In this case this related to parts of various records of interview. I regard it as preferable to bring to such consideration a mind that is not in any way distracted, even subconsciously, by the effect that any ruling I might make or would have on the Crown case. So I do that deliberately, so I can approach the whole matter with a clear and - - -
APPLICANT: Open mind.
HIS HONOUR: - - - -uncluttered and open mind. That’s always been my practice. If you see that as indicating bias, well you can argue that further, but I think I should apprise you of the way I conduct trials where there are going to be voir dires.
APPLICANT: Yes.
HIS HONOUR: I do have an overall summary of the case prepared by my associate, which is a page or two, but I don’t read the depositional material in the case.”[23]
[23]T22-23.
86 There is nothing to support the claim that his Honour’s view was based on a want of diligence. Although there are differing views among judges concerning the desirability or otherwise of reading the depositions, the fact that his Honour did not do so in the present case does not demonstrate error on his part. Nor does the convoluted reasoning through which it is asserted that it led to the development of some bias against the appellant possess any force.
87 These grounds also must fail.
Grounds 12 and 13
“12.The trial judge erred when he allowed parts of the record of interview to go to the jury against the objections of the defendant.
13.The trial judge erred when he did not allow parts of the record of interview to go to the jury against the objections of the defendant.”
88 These grounds rest essentially upon two assertions. First it was claimed that there was evidence that the applicant was, by reason of a number of factors, not in a fit state to be interviewed and, second, that the issues raised by the circumstances under which the interviews were conducted were not properly explored by his legal representatives on his behalf.
89 There were, after the applicant was initially taken into custody, a number of conversations and formal interviews conducted with him by members of Victoria Police.
90 Some conversations which took place at the caravan park were not the subject of controversy in the trial as agreement was reached by the parties concerning them.
91 The admissibility of a series of interviews of varying length which took place at the Mildura Police Station was, however, the subject of challenge. There was a hearing on the voir dire with respect to them when the matter came before the Court in August 2002. Mr Hartnett raised the issue of their voluntariness and the possible exclusion of this evidence in the exercise of judicial discretion based upon the notion of unfairness. During this hearing which occupied three days, the prosecution adduced evidence from all, save one or possibly two, of those who were present at relevant stages of the arrest and interviewing of the applicant. As I understand the thrust of the generally fairly vigorous cross-examination of these witnesses by Mr Hartnett, it was being put that his client had been subjected to persistent questioning against his expressed wishes and that questions arose as to whether any of the statements made by him could properly be regarded as voluntary, in the sense that they were made in the exercise of a free choice to speak or remain silent, and as to whether the admission of the evidence of those statements should be excluded on the basis of unfairness.
92 At the completion of that process, counsel for the applicant indicated that the calling of the one or two persons, to whom I have referred, was not required. His Honour then enquired as to the course that the defence proposed to adopt; in other words, was it intended that the applicant be called or other evidence be adduced? Mr Hartnett responded “could I delay until Monday morning?” The judge acceded to this request and the court adjourned for the weekend. On resumption, his Honour was informed by Mr Hartnett that he understood his instructions were going to be withdrawn and, accordingly, no further steps were then taken with respect to the application.
93 The matter was reconsidered at the trial which commenced in October. Mr O’Doherty of counsel, who was then appearing for the applicant, requested the trial judge to adopt the evidence given on the voir dire at the earlier hearing, and announced that he proposed to adduce no further evidence, but said that he wanted to present submissions based upon the material already before the court. His Honour, who had, of course, presided at the earlier hearing, reasonably regarded the adoption of this course as appropriate and oral submissions were presented by the prosecution and the defence.
94 The central proposition advanced by counsel for the applicant was encapsulated in the following passage:
“It is clear, in my submission, that right from the very beginning that the accused person wished to exercise his rights and there are numerous references in the interviews, certainly the first few interviews of him stating in no uncertain terms that he wanted to follow the advice of his solicitor; he wanted to speak to his solicitor.
The questioning continued notwithstanding his protestation that he wanted to speak to a solicitor and the police officers in the course of their evidence on the voir dire made it perfectly clear that they were going to continue to question him irrespective of what he said he wanted to do.”[24]
He argued that it had not been established that his client’s statements were voluntary and submitted that, even if that were the case, they should be excluded in the exercise of discretion.
[24]T7.
95 When regard is had to the efforts of counsel, as recorded in the transcript, to maximise the applicant’s prospects of success in the proceedings, the unfairness of the many criticisms and allegations concerning his representation of his client is starkly exposed. The submission advanced on the admissibility of the police interviews provides a good example of forceful presentation of argument on an issue of difficulty for the defence. For example, he contended at one point:
“The truth of the matter in my submission Your Honour is that what the interrogator wanted to do was to break him down to get him to make selective answers, to get him to talk because at that stage there was no indication that there would be any relenting on the part of the interrogators, it was just going to go on and on and on.
Bear in mind that he had been interviewed at this point in time at least three times if not four times, and if anyone was in doubt about what he wanted in terms of his rights at that point in time they must have been asleep or not listening to him or alternatively deliberately blinding themselves to what he wanted.”[25]
…
“Now, in my submission. Your Honour, based on the context of the records of interview, the tenor of the records of interview and the evidence given by the witnesses on the voir dire, it is clear beyond question that the breaches were deliberate, that they are fundamental, they go to the central issue here of the deprivation of rights; they are unfair breaches and in my submission Your Honour ought to exclude the entirety of the records of interview for those reasons.”[26]
It was certainly through no lack of forensic competence or dearth of application on his part that the trial judge rejected his arguments.
[25]T17-18.
[26]T19.
96 I should add that whilst some reference was made in the trial to the applicant’s physical condition at the scene and when interviewed, no contention was advanced at the hearing on the voir dire or at the trial, either specifically, or as a matter of inference from the cross-examination, by defence counsel that, by reason of the applicant’s physical condition, any admissions made by him could not be found to have been voluntarily made or should be excluded in the exercise of judicial discretion.
97 Having perused the transcripts and played the video recording of part of the process, I do not find that to be at all surprising, particularly when the fact that, in the course of the interviews, the applicant spoke to a number of independent persons is taken into account. They included (at the time of three short interviews[27] which commenced shortly after he was initially taken to the Mildura Police Station) a solicitor from the Aboriginal Legal Aid Service at 11.46 p.m. on 1 March, Dr Gerald Murphy at 12.05 a.m. on 2 March and Mr Ray Clark from the Aboriginal Co‑Operative at 12.15 a.m.
[27]These interviews were of a formal character designed to ensure that the applicant was aware of his rights and were not led in evidence.
98 The trial judge found that:
“Having listened carefully to these tape recordings it is quite clear that the accused was not only aware of his rights but was forcefully asserting them. His comments included his disinclination to be interviewed by Messrs Irwin and Wellington but a willingness to participate in an interview with other police.
…
I should add that it is not contended that the accused was physically incapable of participating in any records of interview despite his complaints about a sore toe and some vomiting which Dr Gerald Murphy attributed to nervousness, an understandable state in the circumstances. Dr Murphy’s view was that the accused was fit to be interviewed.
In so far as it is submitted that these interviews demonstrate any overbearing of the accused’s will, the material itself leads to very opposite conclusions. In any event, I have already indicated that the interviews should be excluded on the grounds of relevance.”[28]
[28]Ruling, T38.
99 Subsequent to those interviews, the applicant also spoke to another representative of the Aboriginal Co-Operative at 1.42 a.m.
100 A second series of more substantial interviews commenced at 5.05 a.m. on 2 March, in the course of which he spoke to Mr Bourke from the Aboriginal Legal Service at around 6.38 a.m., Ms Hennessy, another solicitor, at about 9.10 a.m. and Mr Anderson, who was also a solicitor, at 10.30 a.m.
101 The submission that the applicant may not have been in a fit state to be interviewed and that his condition may not have been appreciated by any of those persons whose very presence was directed to the enforcement of his rights, is, in my view, quite unrealistic in the circumstances. Nor do I consider that the conduct of either of the two counsel who represented him at the separate trial proceedings can be criticized for any failure to deal appropriately with the issue of the admissibility of the various statements made by the applicant to the police.
102 The remarks of the trial judge in his ruling made clear that he was mindful of the applicable principles of law when considering the question of the voluntariness of admissions made by an accused person or their exclusion in the exercise of discretion. There is nothing to suggest that he did not apply those principles correctly or that his discretion may have miscarried. There is, in my opinion and contrary to the assertion in his submission, nothing in the evidence concerning the later analysis of the sample of blood taken from the applicant that can be seen to possibly affect this situation. Nor do I consider that the evidence concerning the possible state of tiredness of the applicant was simply ignored by his Honour.
103 Finally, I have not been able to identify any parts of the interview that the applicant desired to place before the jury which were excluded by his Honour as claimed in ground 13.
104 In summary, I consider that these grounds must fail.
Grounds 14 and 15
“14.The trial judge erred when he charged the jury that Sedgley was an important witness to the Crown case.
15The trial judge erred when he did not raise the issue of Sedgley being an inherently unreliable witness and therefore enlivening the need for a warning to the jury when there was evidence before the Court which clearly proved that Sedgley’s evidence could not be reliable.”
105 The evidence of the making of the statement to Ronald Sedgley “I think I’ve gone too far this time, I think I’ve killed her” was, the prosecutor submitted in his address to the jury, important for more than one reason. First, he linked it with the evidence of Ms Dawes that the applicant said to her “I did it. It’s not our knife, she must have brought it with her”, and argued that these statements were at odds with what the applicant said to the police in his first interview. If accepted, it was submitted, the applicant could be seen to have lied to the police on a matter of real significance in the circumstances when he asserted to them that he had no knowledge of how the deceased met her death. Second, the fact that in this unprompted utterance there was no reference to the possibility that the applicant may have acted in self-defence, or that there had been an accidental stabbing, rendered these possibilities even less likely.
106 In his charge, the trial judge summarized these contentions in a conventional fashion. He did not fall into error in so doing. When dealing with the evidence of the witness, he drew the attention of the jury to the various criticisms of it advanced by the defence. This was done against a background of the provision of proper instructions to the jury concerning the onus and standard of proof in a criminal trial, the manner in which the evidence of individual witnesses was to be approached, and the circumstances under which evidence might be viewed as demonstrating the consciousness of guilt of an accused of the crime charged.
107 The written submissions contain extensive criticisms of the evidence of Ronald Sedgley presented in a highly polemical style. Again, the conduct of counsel was heavily attacked on the basis that he failed to expose what were claimed to be its fundamental defects. However, it seems to me that any realistically available bases of challenge to the reliability of the evidence of the witness that were open in the circumstances were pursued. In any event, any deficiencies in that respect could hardly be laid at the door of the trial judge.
108 The evidence of Ronald Sedgley could reasonably be regarded as important on an objective assessment of the evidence in this case and was so viewed by the prosecution, although its acceptance was by no means crucial to the success of the Crown case. It was admissible and there is no foundation upon which this Court would be entitled to conclude that the judge fell into error in his instructions to the jury with respect to it, or that he should have provided any further directions to them on this topic.
Grounds 16, 17 and 18
“16.The defendant was represented in Court by Mr Steve Drazetic who represented himself to be a ‘Solicitor’ but who was in fact not legally qualified in Victoria to practice law, and who is not admitted to the Bar in Victoria or in any other jurisdiction in Australia.
17.The trial judge erred when he permitted a person who was not legally qualified in Victoria to practice law, and who is not admitted to the Bar in Victoria or in any other jurisdiction in Australia, to represent the defendant from the bar table without seeking the leave of the Court.
18.That the defendant was misled and pressured by the trial judge into accepting ‘legal advice’ from a person who was not legally qualified in Victoria to practice law and who is not admitted to the Bar in Victoria or in any other jurisdiction in Australia.”
109 There is no factual foundation for the contention that Mr Drazetic represented himself as a solicitor at any stage of the matter. There have been affidavits filed in support of the application to which, in the circumstances, I consider regard should be had and which contain statements to the effect that the applicant and his family members assumed that Mr Drazetic was legally qualified when it transpired that that was not the case. They contain no contention that he ever made any such representation or that anyone else ever did. His Honour did refer to Mr Drazetic at the hearing on 13 August 2001 as a “legal representative with the Victorian Legal Aid for many years, many many years.” As earlier indicated, this statement was made in the context of an announcement by counsel then appearing for the applicant that he understood that:
“Mr Badenoch has told Mr Drazetic in as many words and told me that he wants to withdraw my instructions from this trial and he wants to do so now.”[29]
[29]T186.
Counsel requested an adjournment to the following day stating:
“…if there is a finality to that then it be done with Mr Drazetic who represents of course Victorian Legal Aid, is a representative of Victorian Legal Aid, my client being a recipient of Legal Aid from that institution.
I feel very reluctant, Your Honour, just in the absence of Mr Drazetic being here just to announce my withdrawal from the case, Your Honour.”[30]
His Honour responded:
“I think Mr Badenoch ought to reflect on it and I think he ought to reflect on it long and hard because Mr Hartnett is a very experienced counsel – and I’m saying these remarks so you can hear them Mr Badenoch; he has conducted many serious criminal trials, it is a very drastic step to terminate his services. It shouldn’t be something that you easily do, nor should you dismiss his advice easily.
You face presently the most serious charge known to this court, that of murder. Now, maybe the matter can be resolved without it going on as a murder; I don’t know. I think you should consider your position very carefully before you go rejecting Mr Hartnett’s advice or dismissing him as your counsel.
Ultimately, it is a matter for you, but I think you should think about it long and hard and that is why I will adjourn this matter till tomorrow morning. You will have the opportunity of discussing the matter with Mr Drazetic, who also has been a legal representative with the Victorian Legal Aid for many years, many many years and he is another person whose advice you would be wise to listen to.
Ultimately, it is your decision but I wouldn’t want to see you foolishly make the wrong one.”[31]
[30]T186.
[31]T187-188.
110 Speaking directly to the applicant, after some further short discussion, his Honour pointed out:
“…but of course it is ultimately a matter for you.”[32]
[32]T189.
111 It is apparent from these remarks that the trial judge was concerned that the applicant might well be acting contrary to his own interests in dismissing counsel whom his Honour regarded as competent and experienced in the conduct of such trials. I have no doubt that his Honour was also concerned about the possibility that the applicant may have chosen to proceed without legal representation, a highly undesirable state of affairs from whatever perspective the matter was viewed. There was a risk that the nature and extent of the disadvantage to which he might subject himself was not fully appreciated by the applicant. He urged the applicant to consult with Mr Drazetic, who, he also knew, had been dealing with criminal matters over a very long period as an employee of the Legal Aid Commission before making a decision, but he pointed out “ultimately it’s your decision.”
112 To criticize his Honour for his endeavour to ensure that the applicant did not compromise his own position is quite unreasonable. In any event, the withdrawal of instructions was maintained. It was in those circumstances that on the following Wednesday morning, and after counsel had gone, the following exchange took place:
“HIS HONOUR: Mr Drazetic, I think we’ll start with you; what is the situation?
MR DRAZETIC: The situation, Your Honour, is the same as advised yesterday by Mr Hartnett. I have been in contact with Victoria Legal Aid, it seems that funding will be available for the trial. I have also briefed another counsel for this matter, Mr David O’Doherty. I had discussions with him this morning and last night. He will be apprised of this matter once I return to Melbourne and he will be furnished with all the documents in this matter.
Your Honour, in addition I have also been in contact with the Aboriginal Health Service and have now received a faxed letter in relation to the matters that Mr Hartnett mentioned yesterday. We would seek a bail variation for two days, namely Monday 21st and Tuesday 22nd, for Mr Badenoch to travel to Melbourne and to be examined and consulted by Dr Clare Stainsby, who has seen him previously in respect of medical issues and other matters.” [33]
[33]T203 (bis).
113 Apart from the provision of some details as to the proposed residence in Melbourne of the applicant if bail were granted and the arrangements for travel and the appointment, that, as I understood the position, constitutes the totality of the representation “from the bar table” encompassed by ground 17.
114 These grounds lack substance.
Ground 19
“19.The trial judge erred when he ruled that Dr Shelley Robertson could not give expert evidence in relation to her reports of 1 May 2000 and 2 June 2000.”
115 Dr Robertson was the pathologist who conducted the post mortem examination of the deceased. Her findings were set out in two reports dated 1 May 2000 and 2 June 2000. Under cross-examination at the committal hearing, she was asked whether she had read the medical file of the deceased and she responded:
“I can’t recall exactly. But there were a number of instances of documented descriptions of bizarre behaviour and psychiatric disturbance.”[34]
[34]Committal T186.
She was then asked:
“What do you mean by the comment in your report that it is possible that this [psychiatric disturbance] may have contributed to death by producing an alteration in mental status?”[35]
She replied:
“Only that in view of the history of behavioural disturbances in the deceased, it is possible that such a disturbance in some way may have either led to an altercation in which she sustained the injury, or maybe even led to self-infliction of the injury.”[36]
[35]Committal T186.
[36]Committal T186.
116 Counsel appearing for the applicant at the trial in October 2001 attempted to elicit this opinion to support the defence that the prosecution could not exclude beyond reasonable doubt the possibility by reason of her mental state of self-infliction of the fatal wound. His Honour ruled that, as Dr Robertson possessed no expertise which would enable her to express such an opinion, this could not be done. Whether she was able to express an opinion as a pathologist that the wound could have been self-inflicted was, he said, another matter. After a further short examination on the voir dire, counsel on the return of the jury asked in cross-examination:
“Let me put this to you, that that injury, the causation of that injury is consistent with having been self-inflicted; is that correct?---Yes.”[37]
She subsequently stated in re-examination that there was nothing about the wound itself that would indicate that this had occurred.
[37]T100.
117 The ruling of the trial judge was clearly correct and this ground must fail.
Ground 20
“20.The trial judge erred when he allowed Dr Gerald Murphy, a General Practitioner, to give expert evidence about a toxicology report compiled by Professor Olaf Drummer when on Dr Murphy’s own admission issues of toxicology were ‘outside his area of expertise’.”
118 In the course of cross-examination at the trial, Dr Murphy, a general medical practitioner, who had examined the applicant at the Mildura Police Station shortly after he was taken into custody on the night of 2 March, was requested to look at a toxicology report prepared by Dr Olaf Drummer relating to blood samples taken from the deceased. He said, as one might reasonably anticipate from the nature of his practice, that he was familiar with the drugs found there and indicated that he had “come across those substances” in his experience. With respect to the identified prescription drugs, he was acquainted with their effects and the limits of the amounts that would be prescribed. He was then asked:
“Q.Having regard to the finding that Professor Drummer made as to the amount of various substances in the deceased’s blood, would you agree that she would have been at the time affected by excessive amounts of drugs?
A.I wouldn’t have the experience to comment on the word, ‘excessive’ I don’t know the …
Q.She was affected, you’d have to agree with that, wouldn’t you?
A.Again, I think it’s outside my realm of …
Q.Is it, all right. Look at the finding for the marijuana; do you see that?
A.Yes.
Q.How much was there?
A.Twenty-two nanograms per mL.
Q.That’s a significant amount, is it not?
A.Well, again this is outside my level of experience.”[38]
However, he accepted that, given the amount of cannabis in the deceased’s system, she would have been adversely affected.
[38]T432-433.
119 It is apparent that whilst Dr Murphy was concerned not to stray beyond the limits of his expertise, counsel for the applicant was desirous of emphasizing the possible effect of the drugs consumed by the deceased upon her behaviour at the relevant time. In my opinion, both substantially succeeded. The evidence given by Dr Murphy was, save perhaps with respect to his view concerning the cannabis detected, within his unchallenged area of expertise and properly admitted in the circumstances. If, however, I am incorrect in this view, its admission could only have assisted the applicant and no miscarriage of justice could be seen to arise by reason of its presentation in the trial. It was, after all, adduced on behalf of the applicant.
Ground 21
“21.That the Crown failed to call all relevant material witnesses for the consideration of the jury, namely:
(a) Police officer Brendon Francis Carrodus;
(b) Police officer Bruce Roberston;
(c) Police officer Shaun Rothe; and
(d) Forensic scientist Kathryn Bradley.”
120 Senior Constable Carrodus spoke to the deceased and the applicant following the supermarket incident. In the applicant’s submissions, the claim is made that his presence at the trial was essential to the defence in order to establish that the deceased was the aggressor on that occasion and because he was able to provide evidence as to the condition of the applicant on that night. Whilst what occurred at the supermarket was important for a number of reasons, including setting the background for what occurred later, the trial was centrally concerned with what took place when the deceased went to the caravan park on the following night. As I have pointed out in other contexts, there was ample and uncontroversial evidence of the violent disposition of the deceased and there could have been no doubt in the minds of jury members that her purpose for going to the caravan park was to effect some form of pay back. Carrodus had little to add to the evidence before them on what could be reasonably described as the real issues in the trial. The absence of Carrodus, in all the circumstances, cannot be seen to be a source of possible injustice to the applicant. This was presumably the view taken by both his legal representatives and the Crown.
121 Next, the assertion is advanced in the applicant’s written submissions that Sergeant Bruce Robertson, who was at the time stationed at the Mildura Police Station, was a material witness and should have been called by the Crown. Although the material contains no statement by him, Sergeant Robertson gave evidence at the voir dire hearing. He said that he had attended at the caravan park with other police members following the incident. He was in the vicinity of the body of the deceased when he was approached by the applicant who told him that the deceased was his sister and that he wanted treatment for an injured toe. Sergeant Robertson then walked with him to where the ambulance was parked and introduced him to the ambulance officer who treated him.
122 The claim is made that this evidence stood in direct contradiction to that of Ronald Sedgley who told the jury that he went with the applicant to the ambulance to have his foot treated. There is a discrepancy between these two accounts. However, it does not follow that Sedgley’s recollection was necessarily inaccurate. Even if he was in error, it must also be borne in mind that Sedgley also stated that he was extremely shocked upon hearing of the death of the deceased and gave evidence that he was concerned about his “wife’s girls and the Badenoch children” who became very distressed.
123 The presence of a discrepancy of the kind upon which reliance has been placed as requiring the calling of Sergeant Robertson is hardly noteworthy in the circumstances and certainly insufficient to cast doubt upon the veracity or reliability of Sedgley concerning the central piece of evidence given by him, that is, that the applicant said “I think I’ve gone too far. I think I’ve killed her.” In a situation in which the witness had given evidence on the voir dire and presumably was available to give evidence if required, I neither regard the failure of the prosecution to call him as constituting a breach of their obligation to act fairly, nor do I consider that the absence of the witness was capable of occasioning a miscarriage of justice.
124 According to his evidence on the voir dire, Senior Constable Rothe was engaged in divisional van duties when he was called to the caravan park. On arrival he saw the applicant squatting near the body of the deceased. The witness then ascertained from the ambulance officers that Ms Badenoch was dead and then performed other duties concerned with the investigation of the circumstances. He was then approached by Sergeant Robertson and the applicant was taken for treatment to his foot.
125 Again it is contended by the applicant in his written submissions that this version is inconsistent with that provided by Ronald Sedgley and negates the possibility of the conversation about which Sedgley gave evidence having taken place. A careful reading of the transcript reveals that this is not the case.
126 A similar claim is made with respect to the evidence of Senior Constable Kelly who went to the caravan park with Senior Constable Rothe. It fails for the same reason. I note that Senior Constable Kelly said that it was he who arranged for the applicant to receive treatment to his foot. I have mentioned this aspect of his evidence as it serves to demonstrate the inconsequential character of the type of discrepancies, if they can be seen to be present, upon which the ground rests.
127 The absence of the forensic scientist Ms Bradley who found biological material of the deceased on the handle and blade of the knife with which she was stabbed could not seriously be argued to have contributed to a possible miscarriage of justice.
128 There is no suggestion in the transcript of the trial, or in any other material before the Court, that the Crown refused to call or make available any of these persons. Nor is this a case in which the absence of the potential witnesses could be viewed as the consequence of a conscious decision by the prosecution to secure some forensic advantage in the trial. Whether considered individually or in conjunction each of these persons had almost nothing of relevance to say with respect to the issues in the proceeding.
129 Ground 35
“35.Further to ground 21, the Crown failed to call all relevant and material witnesses for the consideration of the jury, namely:
(a)Dr Olaf Drummer;
(b)Michael Faulks;
(c)Andrew Michael Jeffries;
(d)Senior Constable Schultz – Mildura Traffic Management Unit;
(e)Jindalee Alice Sibley; and
(f)Raymond Ronald Clarke.”
130 Dr Olaf Drummer was a forensic toxicologist who examined biological specimens taken from the deceased. His report was tendered in the trial. It is claimed that as a consequence of his absence from the witness box, the circumstance that “the defendant was faced with a badly drug affected person was something that was effectively concealed from the jury.” There is no substance in this complaint.
131 Michael Faulks was, according to his police statement, employed as an ambulance officer on 2 March 2000, and in that capacity attended at the caravan park. It is recorded in that statement that he told the police that when he arrived, the deceased was lying on the road, and that there were several people, including the applicant “milling around near her”. The applicant approached him and asked if she was going to be all right. Faulks responded that unfortunately she was deceased. This caused the applicant to say “Oh no”. Faulks observed “at some stage [the applicant] went and sat on his haunches by the roadside”.
132 The applicant’s written submission contains the following passage;
“Faulks is an important witness for the defence case because he places the defendant near to Amalie when he first arrived and the [sic] reports that the defendant squatted down on his haunches at the side of the road and near Amalie and remained there until the police arrived a short time later. The evidence of Faulks is significant because it substantially refutes the evidence of Sedgley and the claims that Sedgley made in relation to the actions and the utterances of the defendant.”
133 It is obvious that the factual assertion underlying the contention is not supported by the witness’ statement.
134 Andrew Jeffries was a resident at the Sun Siesta Caravan Park on 1 March 2000. He made a statement to the police in which he stated that, after hearing yelling and “two very loud bangs”, he went outside to investigate. He saw people running past the front of his caravan towards the front of the park. His attention was drawn to the deceased’s vehicle which had apparently backed into a tree. The statement records that he told the police:
“There was a kid in the car and he was trying to get out. There was a lady at the car yelling out ‘Get the fuck out of the car.’ I watched what was happening. I heard someone yell “leave the fucking car there, who gives a shit.”
He was unable to identify the voice or whether it was male or female. He then returned to his caravan. Jeffries gave evidence at the committal hearing to the same effect, saying when he saw the person, she was running from the passenger side of the vehicle to the driver’s side. He formed the impression that this person was not the driver but may have been as there was sufficient time for that to have been the case. The woman was at the front of the vehicle and yelling at the child as the car was rolling forward.
135 In his written submission, the applicant contends that this evidence indicates that the deceased was “in an abusive and agitated state” at the time. The jury would not have required this confirmation, bearing in mind that she had threatened to kill the applicant and, after having driven to the caravan park, had, immediately prior to Jeffries’ observations, rammed her car into a vehicle outside the applicant’s caravan.
136 He further submitted that the evidence was inconsistent with that of Tina Sedgley when that is by no means necessarily the case. Even if it were, the situation would not be significantly altered. As earlier mentioned, it would seldom be the situation that discrepancies of a minor, and even sometimes of a major, kind are not present when unexpected events are viewed by separate witnesses from different perspectives, different distances and so forth. The particular witness had given evidence at the committal hearing and, presumably, would have been available to give evidence had his presence at the trial been requested by the defence. There is no obligation upon the prosecution to call every person from whom a statement is taken in the course of an investigation, but only those whose evidence can be seen to bear in some material respect upon the issues in the proceeding. The decision not to call this particular witness does not constitute a breach of its duty in the circumstances.
137 Senior Constable Schultz was a police officer attached to the Mildura Traffic Management Unit. He attended the caravan park and had a conversation with Ronald Sedgley which he recorded in the form of contemporaneous hand written notes.
138 The applicant has submitted that there were significant differences between the version given by Ronald Sedgley to Schultz as noted by the latter and that given by him in the trial. The prosecution secured an unfair advantage, the contention was advanced, by not calling Schultz and denied the jury the opportunity to consider the veracity of Ronald Sedgley in the light of his earlier version. The notes taken by Schultz, in relation to Sedgley, record that “ Ron – Heard and saw car come in and heard collision – didn’t see driver.” As the applicant claims in his submission, his counsel at the trial was obviously aware that the first recorded statement with a reference to a conversation having been had with the applicant was made some months later. The importance attributed to Senior Constable Schultz by the applicant is that Sedgley gave him an inconsistent version. Counsel explored this possibility in cross-examination of Sedgley.
“Q.Had you told the policeman, the highway policeman at the scene that Mr Badenoch had said those words to you?
A.I am unable to remember that because I was in shock. That actual one statement put me in shock for days after, knowing that somebody had been stabbed in my vicinity.
Q.Yes, I follow, yes. But what you are saying is you are unsure whether you told the policeman that night what Mr Badenoch had said to you?
A.I told the police officer the movements once I’d been involved with the children and I’d got Farren to come and sit down on the lawn with me to relax to sort of – to wind down a bit, to relax before I took him up to the ambulance officers.
Q.Yes?
A.And possibly – I am pretty certain I did tell him – I would have told him the main content of what was said, but I had done – as you said, I haven’t seen that police officer since that night.
…
Q.You never told your wife or in fact anybody else, for that matter, that Mr Badenoch said those words to you, have you?
A.No.”[39]
The decision of counsel for the applicant not to pursue this matter in the light of the last answer was sound and there was no basis for the Crown to call Schulz who for practical purposes had no admissible evidence to give.
[39]T328-329
139 Jindalee Sibley is the daughter of the deceased who, based upon the statements made by her at the committal hearing, could have provided evidence of the deceased’s violent disposition and that her mother and the applicant had a good relationship until shortly before her death. There was no obligation upon the Crown to call this witness in the circumstances and her absence from the trial is, in my opinion, incapable of supporting the complaint that the prosecution had behaved unfairly or that a miscarriage of justice may have occurred.
140 Raymond Clark, a Client Service Officer with the Victorian Aboriginal Legal Service, made a statement to the police in which he said that he had known the deceased for 30 years. He identified her body. Again it is claimed he may have been able to provide further evidence of her violent disposition. For reasons already canvassed, there is no substance in the complaint that by failing to call him the Crown effectively denied the applicant “the opportunity to fully explore the issues surrounding the violent disposition of Amalie and her life-threatening behaviour to support the defence case and the opportunity for the defendant to fully put his case.”
Ground 22
“By failing to call all material and relevant witnesses the Crown effectively denied the defendant the opportunity to fully put a defence.”
141 I have already addressed the claimed failure of the Crown to adduce the particular persons encompassed by this general assertion which lacks substance for the reasons already given.
Grounds 33 and 34
“33.That the Crown failed in its duty to fairly and fully put its case when it did not reveal to the Court that Senior Constable Brendon Francis Carrodus had sustained a broken leg on 26 July 2002 and that this was the reason that he was supposedly unable to give evidence 75 or 80 days later in October 2002.
34.That the defence failed in its duty to properly defend the accused person and represent his interests when it failed to inquire into, or ask that evidence be called to explain to the Court why a broken leg in July 2002 prevented Police Officer Brendon Francis Carrodus from giving evidence in October 2002 some 75 to 80 days later.”
142 I have already addressed the significance of the absence of Senior Constable Carrodus from the trial. There is nothing in these grounds
Ground 24
143 In his submission, the applicant states that at the trial which commenced on 8 August 2001, he was represented by Mr Hartnett of counsel, Mr Nunzio La Rosa, who is described as “managing solicitor” and Mr Drazetic.
144 This ground alleges incompetency in the performance of his role by La Rosa, relying upon what are described as five particulars, but which involve complaints of different forms of extremely serious conduct, none of which can be sustained on the material before the Court. In any event, even if any of the complaints could be properly supported, none could be regarded as possibly compromising the trial at which the applicant was convicted two months later and in relation to which it is not contended that La Rosa played any role whatever.
Ground 25
145 This ground contains a complaint of incompetent representation of the applicant at the August trial by Mr Hartnett. It sets out 13 particulars, none of which possesses substance. Again, even if the various claims could be regarded as substantiated, I fail to see how any of them could have compromised the later trial of the applicant which did not commence until well after the services of Mr Hartnett were terminated.
Ground 26
146 This ground contains a complaint of incompetency in his representation of the applicant by Mr Drazetic, to whom I have earlier referred. Reliance is placed upon 17 particulars, alleging a wide variety of forms of egregious conduct and breaches of his duty to his client. I do not propose to address these various assertions seriatim. It is, I consider, sufficient to state that I have been unable to find substance in law or factual support for any of them.
Grounds 27, 39 and 44
147 Again I do not propose to set out the 45 particulars of incompetence contained in this ground which relates to the quality of the representation of the applicant by Mr O’Doherty who appeared before him at the trial in October 2002. They are variously misconceived, factually unsupported, and on occasions inconsistent with each other. A number involve the consideration by the court of difficult forensic decisions made by counsel and the tactics adopted in the course of the trial generally, to which the recent decision of the High Court in TKWJ v. The Queen[40] applies.
[40](2002) 212 C.L.R. 124.
148 As in the case of each of the other persons involved in his representation of the applicant, there are allegations of extraordinary seriousness which cover almost all aspects of the trial. There are allegations that counsel “refused to explore key parts of the defence … as he was specifically instructed to do”. They include, for example, “that the fatal wound was self-inflicted by the deceased”. There is no substantiation of this claim. Even if it were true, any reasonably competent legal practitioner would have been reluctant to press such an inherently unlikely scenario to a jury that would presumably be invited to consider the possibility that the deceased removed the knife which the applicant was carrying in his shorts, blade upward, and, unnoticed by him, stabbed herself with it, whilst at the same time she was involved in a struggle, or that, observing the upturned knife in his shorts, she deliberately forced herself upon it in such a fashion that a vertical wound, which penetrated with no horizontal deviation, was received.
149 A number of the complaints relate to the manner in which counsel dealt with the incident in the supermarket and the available evidence that the deceased was extremely unstable and violent. There was, however, a great deal of uncontroverted evidence before the jury dealing with these matters. Whatever and whoever precipitated the incident in the supermarket, at its conclusion there was, any jury would have inevitably found, mutual hostility between the parties. They had before them the evidence of the telephone calls made by the deceased, her various threats against the applicant, her journey to the caravan park to seek him out and the observations of witnesses of what transpired when she arrived there.
150 In summary, I do not find these grounds to have been made out.
Grounds 28 and 29
“28.In all of the circumstances associated with the flagrant incompetence of counsel, the defendant was denied the opportunity to fully put a defence.
29.In all the circumstances associated with the flagrant incompetence of counsel, the defendant was denied the opportunity of an acquittal which was fairly open to him.”
151 These are compendious grounds encompassing the issues raised in those concerned with his legal representation and need not be further addressed.
Grounds 23, 30, 31, 36, 37 and 38
“23.By its conduct of the case, the Crown caused the trial to miscarry because it unfairly denied the defendant the opportunity of an acquittal that was reasonably open to him.”
30. That the conviction for murder was against the weight of the evidence.
31.In all the circumstances, and taking all of the above grounds of appeal together, the cumulative effect is that there was a serious miscarriage of justice which causes the conviction to be manifestly unsafe and unsatisfactory.
36.That in all the circumstances of the case the decision of the Crown in not making all witnesses available caused a serious miscarriage of justice.
37.That in all the circumstances the verdict is unsafe and unsatisfactory, and that considering all of the grounds of appeal in total and cumulative upon each other, the conviction and sentence should be quashed and a verdict of acquittal should be entered and no retrial ordered.
38.That the conviction for murder was against the weight of the evidence, and considering all of the circumstances the conviction, a properly instructed jury acting reasonably, could not have arrived at the verdict that was delivered, the conviction and sentence should be quashed and a verdict of acquittal should be entered and no retrial ordered.”
152 These grounds set out in different forms two broad general assertions, namely, that the verdict of the jury should not be permitted to stand as it was unsafe and unsatisfactory in all of the circumstances, and that, by reason of the manner in which the prosecution was conducted, the applicant was denied the opportunity of an acquittal that was reasonably open to him. With respect to these claims, I am satisfied on a review of the evidence adduced at the trial and the complaints set out in his submissions to this Court, that neither has been made out.[41]
[41]See M v. R (1994) 181 C.L.R. 487.
Ground 32
“32.At the time of filing this notice of appeal the defendant is not represented by counsel for the appeal, and under those circumstances he asks for the consideration of the Court in allowing amendments to the grounds relied upon.”
153 This is not a ground of appeal and is included for completeness.
Grounds 40 and 41
“40Counsel for the defence as an officer of the Court failed in his duty as an officer of the Court to ensure that the defendant was not tried unfairly.
41.Counsel for the defence, as an officer of the Court, failed in his duty as an officer of the Court to ensure that the proceedings were not an abuse of process and an instrument of unfair oppression towards the defendant.”
154 These are compendious assertions made against “counsel” who acted on his behalf, a term used in other grounds to apply to all of the four persons involved in his representation at different times. In so far as they can be interpreted as providing grounds of application for leave to appeal, these claims have been taken into account in the consideration of the individual complaints made and which have provided the foundation for other grounds.
Grounds 42 and 43
“42.Counsel for the Crown, as an officer of the Court, failed in his duty as an officer of the Court to ensure that the defendant was not tried unfairly.
43.Counsel for the Crown, as an officer of the Court, failed in his duty as an officer of the Court to ensure that the proceedings were not an abuse of process and an instrument of unfair oppression towards the defendant.”
155 These are similar assertions made against the prosecution and for the reason set out above need not be further addressed.
156 There being no substance in any of the grounds advanced, I have concluded that none of the grounds advanced possesses substance and that this application should be refused.
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APPENDIX
R U L I N G
HIS HONOUR: This is an application by Mr Farren Badenoch, who appears in person, that I disqualify myself from further hearing this case, on the basis of actual or apprehended bias. Such disqualification must relate to my hearing of a plea in mitigation and my passing of sentence since the decision to convict Mr Badenoch has already been made by a jury.
There is a further application made by Mr Badenoch that I order that these proceedings be stayed as an abuse of process.
It is not clear what would legally follow from the success of either of these applications but, because of the conclusion I have reached about them, it is not necessary to explore either their appropriateness at this stage of the proceedings or their legal consequences.
The law relating to bias has recently been considered in Johnson v. Johnson [2000] HCA 48. Reference to the principles relating to abuse of process is contained in Victorian Criminal Procedures : Fox (2000) at paragraph 2.3.4.1. It is not necessary to set out this material.
Mr Badenoch, I do not intend to respond in detail to the lengthy submissions made by you but I will make some comments.
I cannot, obviously, comment upon any views Mr Drazetic may have of his relationship with me, but I have had no professional or social association with him for very many years.
In this case I advised you to discuss the matter of terminating the services of experienced defence counsel Mr Len Hartnett with those representing you who, in fact, included Mr Drazetic, as the Victoria Legal Aid representative. As you quoted from the transcript, I also indicated that the decision as to whether you terminated the services of your counsel was ultimately a matter for you (P.188).
As to any lack of inquiry as to why you sacked Mr Hartnett, this was a matter between you and your counsel and, on its face, one of legal professional privilege. Accordingly, I did not regard it appropriate that I inquire into those circumstances.
As the transcript indicates, I indicated to you that you should not seek to manipulate the system by the device of terminating the services of counsel. I did not, however, find that you had done so. In fact I adjourned the trial and I extended and varied your bail so as you could attend the Aboriginal Health Service in Melbourne
I have already mentioned my practice in relation to the reading of the depositions when there is to be a voir dire (P.22/23 of discussion). I do not intend to repeat those comments.
No pressure was put on the defence in this matter in terms of the speed of the completion of this trial. The suggestion that the trial had to be concluded by a date in October because of my sabbatical leave is misconceived. Although the transcript refers to October (at p.199) this should be a reference to September. As I pointed out to you during the course of your submission today, my sabbatical leave actually preceded the trial. Further, you had a period of about two months for trial preparation between August and 8 October including the proofing of any witnesses.
Next, my query to counsel as to the length of the trial is a query made by all judges and the reason that information is sought is for the benefit of the jury who are members of the community and who wish to know how much of their daily lives they must give up for jury service. Similar information will also be sought by a judge as to the progress of a trial.
In relation to your challenge to the composition of the jury panel, I expressed the view that the application had no substance. Subsequently, a legal ruling was given by me on this issue and it is subject to the scrutiny of the Court of Appeal.
As to the issue of your fitness for trial, I have indicated that I varied your bail so as to enable you to consult with your medical advisers. This was in August 2001 in response to a letter dated 14th August form Dr Claire Stainsby. At your trial in October 2001, almost two months later, no evidence was presented by your counsel indicating your inability to participate in your trial; consequently the question of the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 did not arise. I should add that the relevant medical file was returned to the custody of the Court and did not indicate that you had ever visited Dr Stainsby in the interim period.
You have raised a number of evidentiary matters and rulings in the course of your submissions. It is again, I think, sufficient to respond that the fairness of the conduct of this trial is open to scrutiny by the Appellate Court. In this regard the transcript speaks for itself. The same may be said for those passages quoted by you in this bias application.
Having listened to your submissions it is my view that nothing raised in them would warrant me disqualifying myself or, alternatively, staying these proceedings as an abuse of process. That finding itself is, of course, open to consideration by the Court of Appeal.
That being my conclusion, I do not propose to disqualify myself and we should move, at a time suitable to you, to your plea in this matter and then ultimately to my sentencing of you. I don’t need to tell you that any sentence I impose will also be subject to appeal by you.
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