R. v. Camilleri

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 86 of 1999

THE QUEEN
	v.
LESLIE ALFRED CAMILLERI

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JUDGES:	PHILLIPS, C.J., BROOKING and ORMISTON, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	31 January, 1 and 5 February 2001
DATE OF JUDGMENT:	7 March 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 14

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CRIMINAL LAW – Consciousness of guilt – No particular standard of proof where merely one piece of evidence – Murder following rape – Previous attack on different victim in similar circumstances – Admissibility and permissible use – Concert – “Presence” at scene – Remote rural area – Manslaughter – No basis in evidence to warrant leaving to jury.

CRIMINAL LAW – Sentence – Murder – Life without possibility of parole upheld.

Crimes Act 1958, s.398A.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G. Hicks, S.C. Mr P.B. Kidd	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr M. Croucher	Stary Myall

PHILLIPS, C.J.:
BROOKING, J.A.:

Introduction

There is no doubt that on 6 October 1997 two schoolgirls, Lauren Barry, aged 14, and Nichole Collins, aged 16, were murdered in remote bushland at Fiddler’s Green Creek. There is no doubt that in the ten hours before their death they had been repeatedly raped and that they had, in the hours of darkness and the early morning that followed, been driven long distances in a car in company with two men, Leslie Alfred Camilleri and his friend, Lindsay Hoani Beckett. There is no doubt that the two girls were murdered by Beckett. He ultimately confessed to the crimes and pleaded guilty without any committal and is now serving two life sentences. Camilleri stood his trial and Beckett was the main witness against him. He was convicted after a long trial and he too is now serving life sentences. Unlike Beckett, who will be eligible for parole after serving 35 years[1], Camilleri was sentenced to life without possibility of parole. He wishes to appeal against conviction and, in the alternative, sentence. He gave no evidence on his trial, which ran from 15 February to 10 April 1999. His defence was that he was in a drug-induced sleep for most of the long car journey and that his companion, Beckett, alone violated and murdered the two girls, who had gone missing in New South Wales near Bega in circumstances which quickly became notorious and whose fate was not known until several weeks after their disappearance.
[1]He sought leave to appeal against sentence without success: R. v. Beckett [1998] VSCA 148.

Both girls being dead, the crimes having from the outset attracted very widespread publicity, Beckett’s application for leave to appeal against the minimum term having already been dealt with and Camilleri having been tried and sentenced, there is no point in our trying to protect the identity of the victims or their families. That has long been impossible.

Background to the crimes

It was on Friday, 3 October 1997 that the father of Nichole Collins set up a campsite, not far from his home, for the long weekend. It was at “White Rock” on the Tathra-Bega Road and was for use by his daughter and her friend Lauren Barry and other boys and girls from the Bega area. On Sunday, 6 October, Camilleri and Beckett were driving near Bega in a car – a Ford Telstar – belonging to Camilleri or perhaps his de facto wife. They had been drinking beer and injecting each other with amphetamine. The back doors of the car were locked and could only be opened from the outside. The two men were no strangers to each other. They had been friends for two or three years. For a few months Beckett had lived with Camilleri and his de facto wife. By October 1997 the two men were living together in Yass with a man named Andrew Smart in a flat occupied by Beckett. The three evidently made it a practice to steal cars together. On the weekend beginning Friday 3 October Camilleri and Beckett went to Bega. They took with them a pink painted television set belonging to Smart and some cheques of his. (The television set was to figure in the trial.) In Cooma, en route to Bega, Beckett bought a carton of Victoria Bitter stubbies. (The torn-off top of this would also figure in the trial.)

Only about three weeks before the events about to be related – on 14 September 1997 – Camilleri and Beckett had, according to Beckett and the woman concerned, picked up a young woman (“Ms G.”) in the same car in Canberra and held her captive for about 12 hours, raping her repeatedly. (That this evidence was let in and what the judge told the jury about it are grounds of appeal.)

The abduction and rapes

At about 9 o’clock on the night of Sunday 6 October Lauren and Nichole, as we shall call the victims, had left their friends at the White Rock campsite and walked down the dirt track to the Bega-Tathra Road on their way to a party. The Crown case, which we must summarise at some length, was that Camilleri was driving the car along that road; that he pulled up and the girls got into the car of their own free will; that after a visit to the Tathra Beach the car was supposed to be returning to the campsite, to enable the girls to tell their friends they were going to a concert in Bega, when it changed direction and Camilleri and Beckett each produced a knife and Camilleri, who was driving, told Beckett to stab the girls if they tried anything stupid. Camilleri – we continue to summarise the Crown case – drove the car down the Old Wallagoot Road, which ran off the Bega-Tathra Road not far from the girls’ homes, until the car reached a rubbish dump. Here Beckett raped Lauren both vaginally and orally notwithstanding that she told him she was a virgin and was having her period and although she was wearing a sanitary pad. While this was going on Camilleri was raping Nichole orally. She was wearing her high school jacket. (On 6 October 1997 clothing belonging to Lauren was found by the side of the Old Wallagoot Road, some distance from the rubbish dump. It included the shirt she was wearing when she last left the campsite. A seminal stain on the shirt was found by DNA testing to match fully a blood sample from Camilleri. Only one person in a million would have had that combination of DNA types. These pieces of evidence were among those at the forefront of the Crown case and were said to be irreconcilable with the defence that, Camilleri being in a drug-induced sleep during the journey, Beckett alone raped and murdered the girls.)

After the stop in the Old Wallagoot Road the car drove off in the direction of Merimbula, with Camilleri still at the wheel. They passed through Merimbula and headed towards Eden. The men injected themselves with amphetamine on the way. Before reaching Eden they stopped at Ben Boyd National Park because (as Camilleri told Beckett) he wanted to rape Lauren. The car drove from the main road to a gravel area, where it stopped. Camilleri was still driving. He took Lauren from the car and through some bushes and returned about 20 minutes later, saying that he “couldn’t get it in”. In the meantime, Beckett had raped Nichole orally. (A small black rubber torch and a tampon were later found in the national park at the carpark.

Lauren owned an identical torch and the girls had it with them when they disappeared. Nichole was menstruating and using tampons at the time.)

Camilleri next drove through Eden and stopped at the edge of the town, where a bitumen road came to an end. Here he made Lauren give him oral sex while Beckett did the same to Nichole.

After this Camilleri told Beckett to drive and he did so, driving off in the direction of Orbost. In the course of this journey Camilleri raped Lauren orally in the backseat of the moving car. They crossed the border and arrived at Wingan Point. Camilleri said to Beckett he “wanted to have another go at” Lauren and told him to drive along a gravel road into the forest, which he did, stopping near a big log as Camilleri asked him to. By now it was daybreak. Camilleri got out of the car with Lauren, tore the lid off the Victoria Bitter stubby carton and put it on the big log to serve as a marker for Beckett, so that he would know where to stop on his return. Camilleri told Beckett to come back in 10 to 15 minutes. Beckett drove off with Nichole and returned after a short time as requested by Camilleri. He saw Camilleri and Lauren emerging from the forest. She was for the first time wearing Camilleri’s T-shirt. With all four back in the car, Beckett continued to drive towards Orbost and Camilleri fell asleep. When he awoke and was told they were going towards Orbost he complained that he wanted to go to Sydney so that the girls could be thrown off a bridge. At about this time he said repeatedly, “They can’t go back”.

The murders

On reaching the Cann River the car, still driven by Beckett, stopped travelling towards Orbost and went instead up the Cann River Highway. One of the girls asked if they were going to be killed and Camilleri replied that they were only going to be tied up so that the men could get away. Camilleri told Beckett to find somewhere to turn off the highway and so Beckett turned off at the bridge over Fiddler’s Creek, which is not far south of the New South Wales border. He drove some distance up a dirt track and stopped. He tied Nichole’s hands with a cloth and Camilleri opened the boot and they both cut lengths from a long piece of rope stored in the boot. Beckett used a length of rope to tie Nichole’s hands and Camilleri used another length to tie Lauren’s hands. The girls asked more than once if they were going to be killed and Camilleri said that they were only going to be tied up so that the men could get away and would not be caught for raping them.

The men led the girls along the dirt track, which ran along a ridge, and then led them through the dense bush for about 150-200 metres, down to a creek. Camilleri was in front, leading Lauren by a six foot length of rope tied to her hands, and Beckett was behind, leading Nichole. It was a very remote and isolated place. At the creek, Camilleri told Nichole to go in the water and wash all the sperm from her vagina. Beckett untied her and she took off her clothes and squatted in the creek and did as she was told. She then dressed herself and Beckett tied her hands with rope again. Camilleri untied one of Lauren’s hands. The six foot rope was still tied to her other hand and he was using this to restrain her while swearing at her and telling her not to whinge as she took off clothing and washed herself out to his satisfaction. Then she put on her clothes again. Camilleri made both girls lie on their stomachs on the sand by a large uprooted tree. He made gags by cutting strips from the jeans Lauren was wearing. (Each man had taken his knife with him to the creek.) Camilleri told Beckett to gag Nichole. Before Beckett pushed the gag into her mouth Nichole asked again if they were going to let her go. There was no reply. Camilleri not only gagged Lauren but used a rope to tie her legs and pulled them up behind her buttocks, with her hands tied behind her back and a rope around her neck and twice around her mouth. Camilleri then told Beckett to take Nichole up to the top of an embankment and tie her to a tree, which he did, first untying her hands and then making her sit at the base of the tree while her hands were tied behind it.

Next, halfway down the embankment, Camilleri told Beckett to go down and drown Lauren and then go up to Nichole and kill her. Beckett, expecting that they would kill one girl each, said, “No, I don’t want to do it”, but Camilleri replied, “Just do it, just fucking do it, or I’ll stab you here and now.” Beckett ran down the embankment and dragged Lauren into the water by the ropes and tried to drown her. She struggled and his knee got wet and so he became angry and pulled out his knife and stabbed her in the throat. As soon as Lauren stopped moving he ran up the embankment to Nichole, who said to him, “You’re going to kill me, aren’t you?” He told her to shut up and cut her throat three or four times. She struggled and tried to get off the ground, tied to the tree as she was. And so he kicked her a number of times and then tried to keep her down on the ground with his foot. Next he tried to stab her in the throat. After this he took the knife in both hands and stabbed her in the chest. Once Nichole was dead he gathered up the ropes and gags and ran back to the car with much blood on him. There Camilleri asked, “Did you do it?” and he said that he had. Camilleri kept asking him, “Did you see the demon?”

Conduct after the killings

They left after only a few more minutes, with Camilleri driving. Beckett had the ropes and gags on the floor of the car in front of him. Once they reached the Cann River Highway they drove in the direction of New South Wales. At Camilleri’s suggestion Beckett took clean clothes and changed out of his clothing, which was heavily stained with blood, put the discarded clothing with the ropes and gags and fell asleep. When he awoke they were near a lookout at the entrance to Canberra (Theodore Lookout). Camilleri told him to get a can of petrol from the boot and burn his discarded clothing. He did so, burning his shoes, socks, underwear, jumper, T-shirt and tracksuit pants. He burnt the ropes and gags too. Camilleri then drove to Tuggeranong shopping centre, where he bought a pair of shoes for Beckett, who, having burnt his own, had none. They paused for a light meal and set off again, with Camilleri still driving. By now it was about midday. They reached Lake Burley Griffin and on Camilleri’s instructions, when the car was on the Commonwealth Bridge, Beckett threw their two knives out of the car window and into different parts of the lake. (One of the knives was later recovered by police divers. It was exactly the same as one which Beckett had been seen handling shortly before it disappeared from its owner’s home.) Camilleri headed in the direction of Yass, where the two men lived, and Beckett fell asleep. When he awoke the car was pulled up at the side of the road outside Canberra. It was Camilleri’s sister who woke him up and Camilleri drove the car to her home. Then the two men made a brief visit to Camilleri’s former flat. Next they went to Beckett’s flat, where the two of them were living with Andrew Smart. (Smart was dead by the time of the trial.) Camilleri’s concern at this stage was to recover from Smart some money that was owed for drugs. The three men went into Canberra – apparently on Tuesday 7 October – and committed some crimes together. The three then drove to Sydney, on about Wednesday 8 October, still travelling in Camilleri’s car, and stayed with Camilleri’s brother, Michael Tierney, for several days. A few days later, when Camilleri, Beckett and Smart were in Campbelltown, they took Camilleri’s car to a car wash named Car Lovers and spent six hours or more cleaning it most thoroughly. Not only the carpets but also the seats were removed. The carpet was shampooed and vacuumed several times. The boot was thoroughly cleaned, as was the outside of the car. (Camilleri was later to admit to the police that the three men had given the car a very good cleaning at about this time.)

About a week after the abduction of the girls, Camilleri, Beckett and Smart drove to the Theodore Lookout in Canberra, where Beckett poured more petrol on the remains of the burnt clothing and burnt them again. It was at about this time that Camilleri and Beckett returned to the Bega area in an unsuccessful search for the pink television set which, just before the girls entered the car, Beckett, to make room for them, had removed from the rear seat and left at the side of the road. (There was a good deal of evidence at the trial about the sighting of this television set and its removal by a council worker to a rubbish bin.)

The Crown relied on other evidence to show that at the time the girls first got into the car Camilleri, far from being insensible, was driving it. Part of this was the evidence of Glenis Wilson, which the Crown said showed that Camilleri was driving the car at a time when Beckett was talking to the girls at the side of the road, shortly before they first got into the car. (Camilleri had told the police that when the girls first entered the car Beckett was driving it, he himself being so affected by heroin as to be incapable of driving.)

Police interviews

Now we must go back to what happened after the killings. On 25 October, about three weeks after the abduction, a stolen car searched by police in Canberra after its occupants had fled was found to contain maps of the Bega area and some belongings of Beckett. This was reported to the Bega Task Force, which interviewed Beckett on 5 November and Camilleri on the following day. Each told the same story, which, according to Beckett, had been made up by Camilleri for them both to put forward. The story was that on Sunday 5 October they went to the Bega festival and then visited Yass and Canberra and ultimately arrived in Sydney; that they knew nothing about the girls apart from what they had read in the newspapers; that they had not gone to Tathra; and that they had not jettisoned a television set at the place where one was found on the Bega-Tathra Road, although Camilleri said that he might have had a television set in his car and might have got rid of it somewhere near Bega by leaving it in front of or behind (he said both) St. Vincent De Paul premises.

On 12 November the Task Force interviewed Beckett again and he made a full confession. Later that day he went with police to a number of sites and at Fiddler’s Creek helped them find what was left of the bodies. That of Lauren was beneath the roots of a big fallen tree which lay across the creek. That of Nichole was among the saplings.

On the day of Beckett’s confession, and after he had made it, Camilleri was again interviewed at Goulburn, where he had been in custody on other charges since 27 October. The police told Camilleri of Beckett’s confession and he gave the following account of events:

“We picked up the girls and went to the beach. I had a shot behind the shed. While the girls were drinking I was trying to OD. We drove around with them. I was asleep most the time. Beckett told me he dropped them off at home. I remember waking up and seeing the girls and then later I asked Beckett where we were and he said Victoria, on the main road somewhere. And I went off my head. I told him to go home, get the fuck out of here. Then I saw him walking out of the bush. He had blood all over him. Told me he cut his finger.”

These questions and answers then followed:
“I said: ‘Did he tell you how he cut his finger?’ He said: ‘No, he had a knife though.’ I said: ‘How do you know that?’ He said: ‘I saw him throw it out of the car.’ I said: ‘Where was that?’ He said: ‘On a bridge. I think it was in Canberra somewhere.’”

Next a record of interview was made, 53 pages long. Because of the answers given in it, quite apart from its length, one cannot provide a summary of reasonable length which adequately conveys the tenor of the interview and its effect upon the mind. Those who wish to form an opinion on the strength of the Crown case should read it in full; we shall come back to it in dealing with the question whether that case can be described as overwhelming. It is enough now to note that in the course of the interview Camilleri said that after going to the music festival in Bega he and Beckett went under a bridge, where Beckett injected him with heroin and also amphetamine, and he went to sleep; that when he awoke Beckett was driving the car on the road between Bega and the beach – he himself being unable to drive because of the heroin – and that Beckett stopped the car and talked to two girls, who got into the back seat after Beckett had taken a television set from there and put it on the side of the road; that he then passed out; that they went to the beach, where Beckett and the girls were drinking while he went behind the surf club shed and prepared a mixture of heroin and amphetamine with which Beckett then injected him; that they all got into the car and he passed out; that when he came to he saw a sign showing that they were at the Victorian border and that he said to Beckett, “Take me back. What the fuck are we doin’ all the way here?”; that Beckett then pulled up at a dirt track; that here Beckett injected him with heroin and he went back to sleep; that he then felt someone touch him on the head; that when he woke up they were on top of a big hill and Beckett was coming up from the bush; that he heard some screaming and then he woke up and Beckett was walking up the hill and had blood all over him; that he had been yelling out “Lindsay” for ten minutes before Beckett appeared, coming up the hill with blood all over him; that when he asked what had happened Beckett said, “I was having a shit and I fuckin’ cut my finger”; that Beckett had a fair bit of blood on his pants, shoes and shirt but that he felt that a cut finger would explain that; that Beckett got in the car and drove off and that he told Beckett that he smelt like a slaughter house; that he then went back to sleep and when he woke up they were in Canberra; that Beckett set fire to something on the side of the road, using petrol, and that what he burnt was a plastic bag containing what Beckett said was all the papers from a stolen car – earlier in the interview Camilleri had described what was burnt as papers from a stolen car and then as “those clothes”; that Beckett then continued to drive and that when they reached Tuggeranong he bought Beckett a pair of shoes because Beckett told him he had left his shoes behind by mistake somewhere – earlier in the interview he had said that Beckett had asked him to buy a pair of shoes because there was blood all over his shoes; that when they were driving across a bridge in Canberra Beckett threw out of the window a knife which he said was broken; that Beckett probably threw two knives out of the window; that when they arrived in Sydney he saw a newspaper account about the missing girls and said to Beckett, “I hope you didn’t do” – meaning kill – “those girls”; that while the two men were with the girls he might have said hello to them but that he did not talk to them because he was asleep most of the time; that after going to Sydney “we” had gone back to the place where Beckett had burnt the clothes and Beckett had burnt them again.

The abandoned television set

Beckett’s evidence was that he made room for the girls to get into the car by taking a pink painted television set from the rear seat and leaving it at the side of the road. There was abundant additional evidence confirming that a television set had been left at the side of the road at the place in question. It had been stolen by Beckett and Camilleri from their companion Andrew Smart because of Smart’s failure to pay Camilleri some money due for drugs. Beckett’s evidence was that about a week after the killings he and Camilleri returned to the Bega area, trying to find the television set. It was part of the Crown case that Camilleri was extremely concerned that the television set would link him to the killings. In his record of interview made on 6 November – the one in which he claimed never to have set eyes on the girls – Camilleri gave answers about the television set which could be regarded as very unsatisfactory. He said he could not remember whether there had been a television set in the car; that he took “some stuff” belonging to Smart and threw it out when they were in Bega behind – he also said in front of – a house belonging to St. Vincent De Paul; that he had taken a television set belonging to Smart (a moment later he said he did not know whether he had taken it); that he did leave an old wooden television set in front of St. Vincent De Paul’s premises; that he did not know whether it was a television set or something else. When interviewed on 12 November, knowing that Beckett had confessed, Camilleri said that there was a television set in the back of the car and that Beckett, not he himself, had put it on the side of the road so that the girls could get in. He said it was a big set. Asked whether they had ever gone back for it, he first did not reply and then said no.

The psychologist

The Crown also relied on the evidence of Gillian Tulloh, a psychologist at the Goulburn prison. Her evidence was that she made a suicide assessment of Camilleri at the prison in November 1997, when he was depressed as a result of other criminal proceedings against him. The jury were simply told that there were events quite unrelated to the offences for which he was being tried by them. In fact Camilleri had been charged with several offences of rape against a child who was his de facto wife’s daughter. The resulting trial had been aborted on 10 September 1997 and he was on bail awaiting retrial on those charges at the time of the Ms G. incident and at the time of these killings. Ms Tulloh gave evidence that she made a suicide assessment of Camilleri on 3 November 1997 and saw him again three days later. This was after he had been interviewed by the police on that day and had made the record of interview putting forward the agreed false story. When Ms Tulloh saw him on 6 November she knew he had been interviewed by the police about some matter but did not know what it was. She asked him what had happened and he told her that the police had been to interview him over the disappearance of the two girls in Bega. She said that in the course of her interview with him the accused was extremely distressed and had difficulty in maintaining a consistent train of thought. He said to her a number of times, of the police, that they knew about “the telly”, and said that there had been a television set in the back of the car; that Beckett had told him that they had dropped it off at St. Vincent De Paul; that he did not know where he had been; that he had had a large shot of heroin and had blacked out; that the next thing he remembered was waking up in Canberra; and that he and “Mick” had found a bag of bloodstained female clothing and a towel at Beckett’s flat and that they had used petrol to burn it. (In the latter part of his interview on 12 November Camilleri told the police that about ten days before that interview he had come across some clothes that belonged to Beckett with blood on them at the back of a laundromat in King’s Cross when he was with his brother Mick and that he and Mick had burnt the clothing because they thought that Beckett was trying to set them up.)

The trial and the points not taken at it

Camilleri, as we shall continue to call the applicant, stood mute and called two witnesses, a forensic pathologist, whose evidence need not be mentioned, and a forensic scientist, whose evidence also need not be mentioned having regard to the course of argument. About 70 witnesses in all were called. Then the Crown addressed for rather more than a day. The defence address went for something like 3½ days. The judge charged the jury for well over two days, reviewing the evidence and the submissions with great care and in very great detail.

On at least eleven occasions the judge gave counsel a chance to take exception to his charge. This produced very little in the light of what are now said to be fatal defects in the charge. The present case is yet another example of a criminal trial which is now said to have miscarried as a result of errors which to a very large extent were not complained of below.[2] When Camilleri applied for leave to appeal against his conviction, after a trial at which he was represented by two counsel, the senior of whom has most extensive experience in the criminal jurisdiction, he relied only on the alleged erroneous admission of the evidence of the earlier rape victim (Ms G.) and the “unsafe and unsatisfactory” ground, of which no particulars were given. In what we regret to say must be described as the usual way the notice of appeal was extensively amended at the last minute, by which we mean a few days before the long vacation, by the addition of five grounds. Of these, grounds 3 and 5, to which we turn in a moment, concern the directions given about consciousness of guilt and corroboration respectively, while the remaining grounds are as follows:

“4.The learned trial judge erred in his directions regarding the evidence of uncharged acts of rape and violence perpetrated against [Ms G.].
…
6.The learned trial judge erred in failing to leave manslaughter to the jury.
7.An aggregate of errors caused the trial to miscarry.”

[2]Compare what is said about the prevalence of late amendments in R v. Challoner [2000] VSCA 32 at [4].

All seven grounds have been relied upon.

In considering grounds raising points not taken below, it is helpful to bear in mind what has recently been said by Gleeson, C.J.[3] and by Hayne, J.[4]
[3]Crampton v. R. (2000) 75 A.L.J.R. 133 at 136-7.
[4]Ibid. at 162-3.

Consciousness of guilt again; corroboration

Grounds 3 and 5 are as follows:

“3. The learned trial judge erred:
(a)in his directions concerning lies and consciousness of guilt;
(b)in directing that ‘[i]f … you come to the finding that someone has told a lie by reason of consciousness of guilt, you have in fact found that person guilty because you have decided that the lie has been uttered because the individual is aware of his own guilt, so inherent in that notion is a finding of guilt’.”

“5.The learned trial judge erred in his directions concerning corroboration.”

“Finding of guilt inherent in finding of consciousness of guilt”

What the judge told the jury about consciousness of guilt and his ruling on what pieces of evidence should be left to the jury as capable of corroborating Beckett’s evidence were both affected by his view of the appropriate approach by a jury to the question of consciousness of guilt, particularly as regards the standard of proof to be applied. The connection between the two grounds was recognised by counsel, they being argued consecutively for Camilleri and together by the Crown. It should be made clear at the outset that notwithstanding the breadth (on one view) of ground 3(a) it has not been suggested as regards this ground that the charge suffers from imperfections which are commonly put forward when a trial is said to have miscarried by reason of failure to direct the jury in accordance with Edwards v. R.[5]. By this we mean that it is not, for example, contended that the judge failed properly to identify the lies put forward by the prosecution as manifesting consciousness of guilt; or that the judge failed to make it clear that what was relied on as a lie had to be shown to be a deliberate lie; or that the judge failed to make it clear to the jury that they could use the lie in the way suggested by the Crown only if they were satisfied that the accused told it because he knew that the truth of the matter about which he lied would implicate him in the commission of the offence. Nor is it suggested that the lies relied upon did not relate to a material issue, or that the need for this was not made clear to the jury, or that it was not open to the jury, having considered other possible explanations, to conclude that the lie was told because the accused knew that the truth of the matter would implicate him in the offence. The case is an unusual one, in that the real point sought to be made under ground 3 relates to a particular view taken by the judge – in this and, it would seem, other cases – and expressed by him in the passage in the charge from which ground 3(b) is drawn:

“Now I want to deal with two pieces of evidence upon which the prosecution has placed some particular reliance as themselves indicating what is termed a consciousness of guilt. The first thing I want to say to you is this concept of consciousness of guilt is one which has proved to be somewhat troublesome in the law because it is very easily misunderstood. If, and you will appreciate why this is so, you come to the finding that someone has told a lie by reason of consciousness of guilt, you have in fact found that person guilty because you have decided that the lie has been uttered because the individual is aware of his own guilt; so inherent in that notion is a finding of guilt.”

[5](1993) 178 C.L.R. 193.

His Honour went on to identify the two lies relied on by the prosecution as demonstrating consciousness of guilt, the first about his whereabouts on the night of the girls’ disappearance and the second about the television set, and no complaint is made about this.

Consciousness of guilt and the corroboration ruling

The judge’s view, expressed in the passage cited, that if a jury found that an accused person had told a lie by reason of consciousness of guilt they had in fact found that person guilty, was the foundation of his ruling that the two lies relied on by the Crown as manifesting consciousness of guilt should not be left to the jury as evidence capable of corroborating that of Beckett.

At the virtual conclusion of the evidence the judge received lengthy written and oral submissions concerning what evidence could be regarded as corroborating that of Beckett. Quite early in this discussion junior counsel for the Crown identified the two lies we have already mentioned and said that the Crown submitted that they were of particular significance and went to such material circumstances as to make it proper to rely on them as showing consciousness of guilt and so to rely on them as corroboration. His Honour then said that once a jury found consciousness of guilt, the issue of guilt had been determined, so that it was unnecessary to consider whether the evidence of a witness was corroborated. This discussion as a whole in the absence of the jury made it plain that it was his Honour’s view that a jury could use a lie as manifesting consciousness of guilt only if it was satisfied beyond reasonable doubt that a deliberate lie had been told and that the reason for the telling of it was consciousness of guilt. He was later to direct the jury in accordance with this view, which appears clearly from this passage in the ruling on corroboration:

“The first [matter in dispute] was concerned with the use of evidence of statements or conduct asserted by the prosecution to demonstrate the existence of a consciousness of guilt of the crime charged as possibly corroborative of the evidence of an alleged accomplice. As I commented in the course of discussion, I have some difficulty with this notion as once the evidence is accepted by the jury according to the standard which the law would require as demonstrating consciousness of guilt on the part of the accused of the offence alleged against him, there is an adequate basis for conviction in its own right. It is difficult to see how there would be in that circumstance any practical area of operation for the principle of corroboration; in other words, the principle would only come into play once the statement was accepted as indicative of a consciousness of guilt, at which point of time there would be no need for a jury to decide anything else.
If, by some employment of varying standards of proof in relation to such statements, which I perceive as problematic in view of the way in which the issue has been dealt with in a number of cases, in any event it was possible to use what is alleged to be a lie in this fashion, it seems to me that there is a risk of confusion and circularity of reasoning in the minds of the jurors, as well as a possible diminution in the strength of the necessary instruction which a judge is required to give in relation to consciousness of guilt in a criminal trial.”

Standard of proof in consciousness of guilt

Consistently with his view expressed during discussion and also in his ruling on corroboration, the judge directed the jury clearly and emphatically that before finding that a lie showed consciousness of guilt they had to be satisfied beyond reasonable doubt that the lie had been deliberately told, that it related to a matter of importance in relation to the crime of murder and that the only reasonable explanation for the telling of the lie was awareness of guilt of the crime of murder. He also emphasised that in deciding whether the Crown had proved guilt the jury had to consider not pieces of evidence in isolation but the evidence as a whole. The Crown had put a submission, in accordance with what is laid down in Edwards, that in a case like the present, where the lie simply forms part of the body of evidence to be considered by the jury, they may conclude that a lie exhibits consciousness of guilt without applying any particular standard of proof. What is laid down in Edwards in this regard has not, so far as we are aware, been departed from or called in question in any later decision of the High Court.[6] Despite some persisting judicial comments on the question of circularity[7], intermediate appellant courts have of course had constant recourse to Edwards as the leading authority in this field and have accepted, as of course they are bound to do, the distinction drawn in Edwards as regards the standard of proof between cases like the present, where the supposed lie is no more than part of a body of evidence, and other cases.[8]
[6]Note in particular Zoneff v. R. (2000) 172 A.L.R. 1.
[7]R. v. O’Brien, unreported, Queensland Court of Appeal, 11 June 1999, BC9903126, in the judgments of McMurdo, P. and Pincus, J.A.
[8]R. v. Trinh [1998] VSCA 137 at [19]; Adam (1999) 106 A.Crim.R. 510 at 511-2 and other decisions of the New South Wales Court of Criminal Appeal there cited; R. v. Hytch, unreported, Queensland Court of Appeal, 4 August 2000, BC200004971.

It may be that in forming the view which he did, and charging the jury as he did, his Honour was influenced by certain dicta in a decision of this Court[9]. Be that as it may, those dicta do not and could not impinge upon the rule as to the standard of proof laid down by the High Court in Edwards. The direction given in this case about the standard of proof was undoubtedly more favourable to the accused than the appropriate direction according to the law as authoritatively established by Edwards. The judge’s observation in his charge that inherent in the notion of consciousness of guilt was a finding of guilt was itself inherent in his own view on the subject. No exception was taken to it notwithstanding that the distinction drawn in Edwards between cases of the present kind – a lie as part of the evidence – and other cases had been relied on by the Crown and notwithstanding that Edwards has become part of the armoury of every experienced member of the criminal bar. Mr Croucher submitted that there was no forensic advantage to the defence in not complaining of the direction impugned in ground 3(b). We do not agree. Any properly argued submission would have had to accept that the impugned direction was, having regard to Edwards, based on a view of the standard of proof too favourable to the accused.
[9]R. v. Laz [1998] 1 V.R. 453 at 468-9.

We do not think it can be said that the accused man has been, or may have been, prejudiced by what was said in the charge. Taken as a whole, the charge would have had the effect that the jury would not use the lies as showing realisation of guilt unless they were, on the evidence as a whole, satisfied of guilt beyond reasonable doubt. The suggestion now put forward that the judge had, by the impugned direction, in some way withdrawn from the jury the issue of guilt is far-fetched. The whole of the charge makes it clear to the jury that this is for them and for them alone. If the accused man’s counsel had thought that there was any danger of the jury’s being misled they would undoubtedly have intervened.

Notwithstanding our view on this point, we wish to make it clear that in our opinion it is very undesirable to tell a jury that if they find that the accused has told a lie by reason of consciousness of guilt they have found the accused guilty.

Under ground 3 it was also argued, very briefly, that that the judge should have warned the jury that whenever the Crown was suggesting that what the accused had said in his principal record of interview (that of 12 November) was not true they should not treat any of those lies as an admission of guilt. Whether this falls within the ground is doubtful but in any event the point has no substance. Having regard to the conduct of the case, including the addresses, and the charge, such a direction was not necessary and might have confused the jury. Significantly, it was never sought at the trial.

Consciousness of guilt left to jury on limited basis

After the decision in Edwards and the numerous attacks on verdicts in this State on the ground that the trial had miscarried because of what had been said or not said to the jury about consciousness of guilt, there arose a marked reluctance on the part of Crown prosecutors to rely, and trial judges to permit reliance, on consciousness of guilt. Attempts have been made in this Court in recent times to correct what appeared to it to be an undue reluctance.[10] In the present case both the Crown and the judge were, not surprisingly, having regard to the number of applications for leave to appeal alleging that consciousness of guilt had caused a trial to miscarry, extremely cautious about the role which it was to play in this trial. The question arose before a jury was empanelled, at a time when a number of questions about the reception and use of evidence were being discussed. Junior counsel for the Crown said that it relied on the fact that Beckett and Camilleri had, in their first police interviews, put forward substantially identical false stories about their movements on the night of 5 October. This, said the Crown, showed concerted action, as did the burning of the clothes, the throwing away of the knives and the cleaning of the car. Thereupon the judge confirmed with counsel that the false alibi was relied on, not as showing consciousness of guilt, but only as further evidence of concert. His Honour went on to express concern that the complication of consciousness of guilt should not be introduced in relation to “a relatively small piece of evidence”. The following exchange then took place between junior counsel for the accused and the judge:
[10]R. v. Chan, unreported, Court of Appeal, 12 March 1998; R. v. Bandiera and Licastro [1999] 3 V.R. 103 at 107; R. v. Mazur [2000] VSCA 111.

“MR MULLALY:     [W]hat the Crown intend to do is to put this evidence forward and then confine it in some way that wouldn’t permit the benefit that may arise from the proper direction as to the consciousness of guilt that the jury should get.
HIS HONOUR:     I would be quite happy to give it if you wanted me. [Emphasis supplied.]
MR MULLALY:     That’s the difficulty.
HIS HONOUR:     The position, Mr Mullaly, is that when I spoke about the complication with respect to consciousness of guilt, I was rather thinking of myself than anyone else.
MR MULLALY:     But the difficulty arises that if the Crown, as the argument favoured them, were not wishing to put forward - - -
HIS HONOUR:     He capitulated to my obvious reluctance to introduce that question.
MR MULLALY:     That’s right. … [I]f the Crown ask that there be an inference drawn that if they were acting cooperatively after the event, that they therefore were acting cooperatively before, it raises this problem, that other inferences are open and to explain those other inferences it is necessary that the defence is put in the peculiar problem that … arose that there may be other reasons of guilt for which these explanations follow. …
HIS HONOUR:     I take your point in relation to this, Mr Mullaly, but I am confronted with a situation in which there are a series of actions undertaken for which they are both present after the event. I am going to have to provide to a jury an instruction as to how those actions can be viewed and the manner in which they can deal with them. It appeared to me that it may be possible to deal with this piece of evidence as just another incident of no different character from any of the other pieces of evidence. It is an instruction and an area with which I would have to deal in any event. The one thing that I did not think made sense was to elevate this particular piece of behaviour beyond any other piece of behaviour and, if one were dealing with the kinds of issues of the inferences to be drawn from behaviours after the event, various burning of the clothes and the cleaning and all that kind of stuff, are things with which I will have to deal. I can’t avoid that. What would be the problem of incorporating this piece of evidence in that scenario as being just another piece of that type of behaviour?”

Judge’s offer of a further direction declined

Mr Mullaly then said that the problem with the particular piece of evidence, that is, the evidence of concerted false denials, was that the Crown would be playing Beckett’s record of interview containing the false alibi “in a self-serving sort of way”. What the difficulty was said to be in this regard is difficult to see: it was not disputed that Beckett had made the record of interview setting up the false alibi and not disputed that it was false, and the placing of that interview before the jury would not, as it seems to us, have had a tendency to reinforce his evidence on any contentious question. Be that as it may, the judge observed that counsel was raising a different point and suggested that it could be overcome by the Crown’s not putting in evidence Beckett’s record of interview of 5 November and instead leading from Beckett and the police short evidence of the essence of what had been said in the interview. (This was the course actually adopted at the trial, although Camilleri’s record of interview of 6 November and his record of interview of 12 November were both placed before the jury.) It was evidently thought by the judge that the accused man might suffer some forensic disadvantage if Beckett’s interview of 5 November and Camilleri’s of 6 November were both before the jury in full. The judge made his suggestion already mentioned and Mr Mullaly, having been given a moment for consideration or consultation or both, said, in answer to the judge’s remark (“It’s not a bad deal”), “That is, in a short-cut way, where we want it to be.”

Although the immediately preceding discussion had plainly not been confined to the alleged concerted false alibi but extended to the other concerted conduct after the killings, and although Mr Mullaly had, in a passage we have already cited, submitted that consciousness of guilt difficulties might arise if the Crown relied on the actions of the two men after the killings as bearing on concert, no further objection was raised on Camilleri’s behalf thereafter. It is to be borne in mind that, again in a passage which we have cited, the judge had said that he would be quite happy to give a consciousness of guilt direction if Camilleri’s counsel wanted it. The result of the discussion before the jury was empanelled was that Camilleri’s counsel did not persist with the suggestion that it would present difficulties if the Crown relied on what was said and done by the two men after the killings as evidence of concert and that it was accepted that nothing would be said to the jury on the question of consciousness of guilt as regards that conduct. The subsequent conduct of the trial, including in particular the failure to take exception, confirms that this was the position.

Mr Croucher advanced to us the argument, not put at any stage below, that the jury should have been given an Edwards direction in relation to what may be called the subsequent words and acts. He did, we think, in the end concede that the ground did not cover this point. No application was made to amend further the grounds of appeal. Had such an application been made we would not have been in favour of granting it, having regard to our view on the merits of the point. True it is that the judge, in summarising the Crown’s submission about the subsequent words and acts, used the words “to conceal their involvement in the murder of the two girls”. This phrase assumed no significance at the trial: counsel took no point then with regard to it. Mr Croucher accepts that, in accordance with the understanding on which the trial had at all times proceeded, the Crown in fact did not invite the jury to use the putting forward of the false alibi and the acts of the men after the killings as showing a realisation of guilt and that they were relied on only as evidence of continuing concert.[11] As is shown by the passage already set out from the discussion preceding the empanelment of the jury, the accused man’s counsel was offered by the judge the direction which it is now said should have been given, but declined it. He had the best of forensic reasons for doing so. The course he adopted is by no means decisive, but it is significant. In his final address counsel invited the jury to attach no weight to the identical false alibis or the acts of the accused after the deaths, saying that his client had obviously panicked and co-operated with Beckett out of fear of being falsely accused. The judge reminded the jury of this submission. In all the circumstances we are not persuaded that the accused man was prejudiced at his trial in the way suggested.
[11]Conduct after the killings was relied on by the Crown in its final address both in listing the evidence corroborating that of Beckett and in dealing in a general way with the circumstantial case against Camilleri.

Consciousness of guilt unduly confined

With all respect to the judge, who dealt with care with numerous problems in the course of this long trial, we can see no reason why the Crown should not have relied on Camilleri’s record of interview of 6 November as evidencing consciousness of guilt. The same may be said of his oral statements which immediately preceded the interview. And if it was open to the jury to find that he had joined with Beckett in burning the bloodstained clothing and other items, and in disposing of the knives, and in cleaning the car, then we can see no reason why the Crown should not have relied on that conduct also as showing consciousness of guilt. In the discussion before the empanelling of the jury the judge was plainly proceeding on the basis that the evidence of the substantially identical false alibis and the other conduct after the killings would be before the jury. It was never suggested that the evidence was not admissible as bearing on whether the men were acting in concert before and at the time of the killings; plainly it was admissible for that purpose. If two persons have jointly committed a crime, it is on the cards that they will act in concert in the days following its commission and that this concerted action will be directed towards preventing their successful prosecution, by giving the same false account and by cleaning, destroying or concealing physical objects that may incriminate them. We find this happening all the time. We must say that it seems to us both sensible and proper that the jury should have been asked to consider in this case whether what the two men said and did shortly after the killings showed them to be men still acting together and doing so with a view to escaping punishment for their crimes. That the jury were asked to consider the subsequent words and acts only as bearing on concert notwithstanding its prima facie guilty character is, we are afraid, the result of the regrettable but understandable tendency, already mentioned, not to rely on guilty lies and conduct in appropriate cases.

Corroboration

Having dealt with ground 3, we turn to the related matter of corroboration (ground 5). The judge’s ruling, reflected in his charge and in the Crown’s final address, was that the evidence capable of corroborating that of Beckett comprised evidence about the following matters: the abduction of and assaults on Ms G.; the observations of Glenis Wilson (relied on as showing that Camilleri was driving at the time the girls entered the car); the seminal stain on Lauren’s shirt; the torch identical to Lauren’s found some distance from the point which a car could have reached at Ben Boyd National Park; the beer carton marker on the log at Wingan Point; the physical features of the location at Fiddler’s Green Creek (said to make it extremely improbable that one man could have taken the girls to their deaths); and the actions of both men after the murders. These actions were the burning of clothing and other items at the lookout, what was done with the knives, the cleaning of the car and the putting forward of the same false alibi.

The ground about corroboration is so widely expressed as to be useless as an indication of what is said to have gone wrong with this trial. Although there had been competing submissions about what should be left to the jury as possible corroboration, leading to the ruling already mentioned, most of the criticisms now advanced under cover of this vaguely expressed ground were raised for the first time in this Court. None of the points argued has any substance. In the end it was not submitted by Mr Croucher that any of the evidence left by the judge to the jury as possible corroboration was not capable of being so regarded. What he said rather was that Beckett gave evidence about each of the matters and that there was a danger that the jury would fail to ignore the contribution made by Beckett’s own evidence in considering whether his evidence was corroborated. The judge should, it was said, have been more specific in his directions, making it clear to the jury, in relation to each particular matter, what evidence – that coming from Beckett – had to be ignored in looking for corroboration. But the judge, who charged the jury for well over two days, was never asked by counsel to assume, and so impose upon the jury, this further burden. Nor was it necessary that he do so. Time and again he made it clear to the jury that corroboration had to come from a source independent of the accomplice. There is no substance in the complaints that the passage read to the jury from the law reports or the judge’s reference to “the statements which are made by Mr Camilleri to the police in relation to his own activities” may have thrown the

door open to the jury’s use as corroboration of evidence additional to the items specifically left to them.

We have not dealt in terms with every argument advanced under grounds 3 and 5, but we are satisfied that neither ground is made out.

The previous attack on Ms G.

According to ground 1:

“The learned judge erred in admitting the evidence of [Ms G.] and as a consequence a miscarriage of justice occurred.”

The evidence of Ms G. has thus far only been very briefly mentioned. At Camilleri’s trial her evidence was confirmed by Beckett, and these grounds have been argued on the basis that they encompass the evidence of both witnesses. The evidence was that, only about three weeks before the present murders, Camilleri and Beckett abducted a young woman in Canberra, using the same car, with the rear doors with their broken locks. According to the evidence it was Camilleri who started the attack on this woman inside the car by producing a sharp knife and digging it into her ribs, demanding sex. She was subsequently, over a period of time, raped orally, vaginally and anally. She was repeatedly hit on the head by Camilleri to make her co-operate and she was threatened with being tied up. At one stage the car in which she was held captive pulled into a rest area off the Hume Highway near Bowral, New South Wales. She told the men she had to go to the toilet and then managed to flee through the bush, wearing only socks and a T-shirt. Both men pursued her, but she managed to escape by hiding in a wombat hole. She then ran on through the bush, suffering multiple abrasions and lacerations, until she came to a farm house, where she obtained help.

At the outset of the trial objection was raised by Camilleri’s counsel to the admission of this evidence. The judge heard counsel and gave a ruling. Written outlines of argument had been submitted. Reference was made to them during oral

argument. Counsel for the Crown began his oral submissions by citing Pfennig v. R.[12] and referring to s.398A of the Crimes Act 1958, which reads:
[12](1995) 182 C.L.R. 461.

“(1)This section applies to proceedings for an indictable or summary offence.
(2)Propensity evidence relevant to facts in issue in a proceeding for an offence is admissible if the court considers that in all the circumstances it is just to admit it despite any prejudicial effect it may have on the person charged with the offence.
(3)The possibility of a reasonable explanation consistent with the innocence of the person charged with an offence is not relevant to the admissibility of evidence referred to in sub-section (2).
(4)Nothing in this section prevents a court taking into account the possibility of a reasonable explanation consistent with the innocence of the person charged with an offence when considering the weight of the evidence or the credibility of a witness.
(5)This section has effect despite any rule of law to the contrary.”

Counsel for the Crown went on to submit that “398A does seem to cover the field in terms of what propensity evidence is, whether it be similar fact, relationship or some other description”, and said that the Crown sought to have the evidence admitted pursuant to 398A. He further said that Ms G.’s evidence was propensity evidence within the meaning of sub-section (2) of the section and, as such, was admissible if the Court “considers it just in all the circumstances” that it be admitted. He went on to contend that Ms G.’s evidence was relevant in no less than five ways:

“First, it permits the inference that Camilleri played the role attributed to him by Beckett; secondly, it rebuts the defence that Camilleri was asleep throughout the present incident; (c) it goes to sustain the relationship between Camilleri and Beckett, and (d) it goes to Camilleri’s knowledge of the likely consequence or outcomes in the present matter; (e) it affords an explanation of the words and directions used by Camilleri in the present matter.”

We here interpolate that the relevance of the evidence to facts in issue, which is expressly mentioned in the sub-section, was accepted before us by counsel for the applicant.

Continuing his argument, counsel submitted that Ms G.’s evidence disclosed, as a minimum, that the applicant:

“…(a) acted together with Beckett; (b) drove the car away; (c) pulled a knife on [Ms G.] and threatened her with it; (d) orally, anally and vaginally raped [Ms G.] on multiple occasions at multiple sites great distances apart; (e) was physically violent towards [Ms G.]; and (f) actively participated in holding her captive for some 12 hours…”.

He went on to contend that there was a “underlying pattern” revealed which showed that the applicant was the only one exerting physical violence and giving directions about where the vehicle was to stop and what was to take place. This pattern, so it was said, led overwhelmingly to the inference that the applicant was not passive, as he had claimed to the police, but was actively involved in the present rapes and thus had a strong motive for wanting the victims to be killed.

During this submission the judge was supplied with a written list of 37 similarities between matters disclosed by Ms G.’s evidence and others referred to in the evidence of Beckett about the present crimes. That these similarities did exist has not been a matter of dispute before us or at the trial. They are set out as an appendix to the judge’s ruling. The central submissions of counsel for the Crown followed and they were that Ms G.’s evidence lent exceptionally strong force to the claims of Beckett about the role Camilleri played during the commission of the present offences, that it made improbable Camilleri’s assertions of passivity and that it constituted cogent evidence of the relationship between the two men.

It was submitted on behalf of the accused at trial as a “general proposition” that the “ordinary rule” applicable was that evidence of pure propensity should not be admitted and that the prosecution was obliged to show “something compelling as to the relevance of the material” before its admission was warranted: the “compelling character” of the evidence had to be such that it overrode the prejudicial effect. It was argued the prejudicial effect of the impugned evidence on the applicant was overwhelming. Counsel referred to what he described as the “single issue” in the case, namely, whether the applicant gave Beckett orders to murder.

In his ruling, which admitted the evidence, the judge appears to have generally accepted the submissions made on behalf of the Crown; he indicated that in the setting of the trial he regarded it as having a “highly probative character”. He allowed that its admission might very well have “an adverse prejudicial effect on the accused”, and continued:

“There is a potential for the misuse of this evidence. This would include, but is certainly not confined to, the granting of undue weight to the propensity to engage in serious criminal behaviour involving violence and sexual abuse which it may be seen to disclose. It is clearly evidence which must be approached with the utmost care on this basis also.” (Emphasis supplied.)

In addressing the topic of fairness to the accused, the prosecution and the “wider society”, which doubtless related to the question whether it was “just” to admit Ms G.’s evidence, his Honour concluded that it was proper that it be admitted and stated that he thought the risk of prejudice to the applicant could be addressed by instructions to the jury.

Before us, counsel for Camilleri fastened on the expression “undue weight” which appears in the passage cited above. It was submitted that this was indicative of his Honour’s having misdirected himself in a serious way in his consideration of the provisions of s.398A. Instead of “undue”, it was said, established principle required the use of “any”. It necessarily followed, so the argument went, that the judge had placed insufficient weight on the risk of prejudice and had overvalued the probative effect of the evidence. Counsel cited, in the above connection, R. v. Best[13] and went on to submit that Ms G.’s evidence was so prejudicial that it was not just to admit it and that its admission would serve to complicate the jury’s task, induce them to engage in impermissible reasoning and distract them from central issues. Nor, it was said, could directions redress the matter.
[13][1998] 4 V.R. 603 at 614 and 616.

The defence faced altogether too many questions. For example, why did Camilleri and Beckett stay together and act together after the killings? What of the admitted burning at the lookout? What of the admitted throwing away of the knives? What of the admitted cleaning of the car? What of the concerted false denials of any knowledge of the girls? What of the admitted return to the lookout for the second burning? What of the earlier abduction of Ms G.?
In his false alibi, at a time when he had no reason to conceal his supposed use of heroin, Camilleri claimed to have been injected not with heroin but with amphetamine. This would not, on the evidence, have made him sleepy: quite the reverse. The Crown said that he changed to heroin in his account once he thought it necessary to confess and avoid his having been in the girls’ company.
Beckett’s admitted role in the rapes and killings, and his character as otherwise shown, made him a man whose evidence had to be approached with great caution. Yet there is much force in the Crown’s contention that his evidence, although he was an accomplice and the actual killer of both girls, was uncommonly persuasive. His terrible description of the rapes, and indeed the whole journey, and his account of what took place at Fiddler’s Green Creek, both before and during the killings, have a sickening ring of truth about them. They are notable, as the Crown pointed out time and again in its address, for the absence of any attempt to suppress or explain away facts showing himself in the worst possible light. Even to a reader of the transcript, they suggest a man without pity, without conscience, giving a matter of fact account of horrible events as if they were commonplace.

No reasonable jury, properly instructed in every way, would have entertained the defence hypothesis of an inert and inoffensive man, stupified by drugs, waking only occasionally and playing no role in a prolonged series of rapes.
It was, however, said at the trial, and it is said now, on his behalf, that for the jury to go beyond a finding of rape to one of murder was too great a leap. But there is no gulf between the findings. On the contrary, the allegations of rape and murder, while of course separate and distinct, were very closely related. The Crown case was that the one set of crimes led naturally, indeed, in the particular circumstances of this case, almost inevitably, to the other. The Crown case was that the men hunted together, caught their prey together, sated themselves together and at the end of it all, in order to escape many years’ imprisonment, killed together. Once the girls were dead Camilleri, who must on any reasonable view have known that Beckett had murdered them, continued to associate closely with him and to act together with him in ways which tended to conceal their connection with the girls. Camilleri’s assertions and denials can only be described as inconsistent, improbable and unconvincing. Once the jury rejected the ten hour stupor hypothesis and found him to be a rapist, they could not, if properly instructed, in the light of all the evidence reasonably have failed to convict him of the murders.
Sentence

The application for leave to appeal against sentence alleges manifest excess, error in failing to fix a non-parole period and error in finding that Camilleri instructed Beckett to kill the girls. This last ground has been abandoned, with the result that there is now no attack on the judge’s findings of fact in his careful reasons for sentence. Moreover, it has not been argued that the judge erred in passing sentences of life imprisonment; such a contention would have been entirely hopeless. Mr Croucher has simply attempted to persuade us that a non-parole period should have been fixed.

Camilleri was 28 at the time of the offences. He had been before the court nine times for other offences, between 1988 and 1997. The convictions were mostly for offences of dishonesty and wilful damage; some had resulted in sentences of imprisonment; none was an offence against the person. No proceedings had resulted from the incidents concerning Ms G, which had occurred only about three weeks before the present offences. As earlier mentioned, Camilleri was at the time of the present offences on bail awaiting retrial on several counts of raping the female child of his former de facto wife. In passing sentence the judge referred to a psychiatric report prepared in 1993 which spoke of a deprived background and “a pattern of theft and vandalism which have been his reaction to social ostracism, leading to frustration, which because of poor impulse control has ended in explosive outbursts of destructive behaviour.”

The judge who sentenced Camilleri had also sentenced Beckett. Beckett had eleven prior convictions, some for offences of violence, arising from seven appearances in court. It was accepted by Beckett’s counsel that life imprisonment was not only appropriate but the only appropriate sentence. At the end of very careful reasons for sentence his Honour referred to such considerations as could be put forward in favour of leniency and observed that, had it not been for Beckett’s undertaking to give evidence against Camilleri, it was highly unlikely that he would have fixed a non-parole period. He went on to fix a period of 35 years and on 3 December 1998 this Court dismissed an application for leave to appeal against sentence, observing that it was not at all persuaded that the sentence was not an appropriate response to the applicant’s crimes.

In sentencing Camilleri his Honour in terms accepted that the killings had occurred in the circumstances described by Beckett, including the preliminary acts at Fiddler’s Green Creek. More generally, he accepted that Beckett’s whole account of events was substantially accurate.

In finding that Camilleri had instructed Beckett to kill the girls his Honour said this:

“Then, using the control which you clearly had over your weaker willed but equally evil companion, you instructed him to perform acts that, in a somewhat perverse way, it could be said that you probably did not possess the courage to perform yourself.”

After making further findings the judge continued:
“I have, I think, made it relatively clear in what I have already said that I consider your level of responsibility for the two murders to be very great indeed, and at least equal to that of Beckett.”

His Honour’s reasons for sentence could, with profit, be set out at greater length but we shall make no further citations from them, beyond noting that his Honour, conscious that the sentence he was about to pass was a terrible one, formed the view that his duty was clear.

Mr Croucher has relied on his client’s disadvantaged background and his relative youth and has suggested that he will serve his entire sentence in “protection”. He contends that other more serious cases of murder can be imagined and have indeed come before the Court. He has referred us to certain other sentences for murder. The present case is undoubtedly one of the worst examples of murder to be found in this State: it is the worst in our experience. We shall not repeat the salient facts making this so, which speak for themselves. Nor shall we cite from any of the important recent authorities in this Court dealing with life sentences and minimum terms for the crime of murder and how multiple killings should be approached. It is enough to mention R. v. Coulston[31], R. v. Lowe[32], R. v. DJH[33] and what was said by the Court in disposing of Beckett’s application[34]. We would have been surprised if sentences of life imprisonment without the possibility of parole had

not been passed for these remorseless killings and we regard the application for leave to appeal against sentence as one which could not possibly succeed.

ORMISTON, J.A.:

[31][1997] 2 V.R. 446.

[32][1997] 2 V.R. 465.

[33][1998] VSCA 108.

[34][1998] VSCA 148.

On these applications for leave to appeal against both conviction and sentence I have had the advantage of considering in detail the joint judgment of the Chief Justice and Brooking, J.A. Save and except for one matter, which in my opinion is largely peripheral to the issues raised by these applications and determined in the joint judgment, I agree entirely with what is there said both as to the determination of the issues and as to the reasons for disposing of both applications. In particular, I would emphasise my complete concurrence with what is there said at paras.[92]ff. as to the strength of the prosecution case and also as to the circumstances and reasons which ought to lead to the rejection of the application for leave to appeal against sentence. Although my experience in this field is somewhat less than that of the other members of the Court, I likewise have found this the worst case of murder with which I have had to deal.

The one subject, represented by ground 3, about which I have some reservations so far as the reasoning in the joint judgment is concerned, is that related to consciousness of guilt. I should first make clear, however, that I agree entirely with the rejection of the ground and with the essential reasoning which leads to the rejection of that ground. Where I differ, and I differ only in that I would prefer not to express concluded views on the issues, is, in the first place, as to the more general observations as to the use of consciousness of guilt evidence and, in the second place, as to whether the Crown should have relied upon, and the judge should have left to the jury, other acts or statements which might have been said to evince consciousness of guilt.

As to the specific ground of objection to the learned judge’s charge on this subject I would agree that the judge erred in the passage referred to at the end of

paragraph [26] of the joint judgment. In so far as his Honour suggested that a finding that a lie has been told by reason of consciousness of guilt would in itself amount to holding that the person is guilty of the offence charged, I can well understand what the learned judge was driving at, but it was not an observation which should have been made to the jury who, I would venture to suggest, would find the relevant directions relating to consciousness of guilt difficult enough to comprehend. As I would understand it, the theory behind the reception of evidence of consciousness of guilt is that, if it is established, then the relevant conduct may be treated as an implied admission of guilt. But it is no more than evidence of such an implied admission and therefore must be weighed with all the other evidence in determining whether the prosecution case has been made out beyond reasonable doubt. This must be so however compelling the admission may seem, so that even explicit confessions still have to be tested by the jury appropriately: cf., e.g., Burns v. The Queen[35] and McKinney v. The Queen[36]. All I believe that the learned judge was adverting to was the stringency of the tests taken from R. v. Lucas[37], and adopted in Edwards v. The Queen[38], especially as they require that the jury must be satisfied, inter alia, that the conduct sprang from both a realisation of guilt of the relevant offence and a fear that the truth might be discovered. Implicit in the judge’s reasoning, moreover, was his belief, as represented by his direction to the jury, that satisfaction as to consciousness of guilt by them had to be established beyond reasonable doubt. As a generalisation, that was likewise erroneous according to the well-known principles laid down in Edwards. Applying such a standard, the jury in making a finding of consciousness of guilt would, as a matter of practicality, necessarily be a long way down the track to concluding that the accused was guilty of the offences charged, however wrong it may be to tell that to the jury.

[35](1975) 132 C.L.R. 258.

[36](1991) 171 C.L.R. 468.

[37][1981] Q.B. 720.

[38](1993) 178 C.L.R. 193 at 208-211.

I am not confident, however, that the very experienced trial judge was deliberately refusing to apply the test as to burden of proof in Edwards. What was said about onus of proof in Edwards was expressed by the majority (Deane, Dawson and Gaudron, JJ.) as follows[39]:

“Although guilt must ultimately be proved beyond all reasonable doubt, an alleged admission constituted by the telling of a lie may be considered together with the other evidence and for that purpose does not have to be proved to any particular standard of proof. It may be considered together with the other evidence which as a whole must establish guilt beyond reasonable doubt if the accused is to be convicted. If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude the accused is guilty.”

Now, although I was first inclined to believe that this evidence was being put forward as part of a circumstantial case against the applicant, in particular on the alternative basis of acting in concert, I am by no means confident that the judge saw it in that way. Rather, I believe his Honour saw the two items as each providing, if accepted as evincing consciousness of guilt, independent evidence of an admission against interest, separate from the circumstantial case and separate from the issue of corroboration. If so, the higher standard of proof would, on the authority of Edwards’ case, have been appropriate. Even if I am wrong here, the judge may well have been directing the jury as a matter of caution and simplicity upon the basis that they were either independent implied admissions or part of the circumstantial case, but in circumstances where it was thought preferable only to refer to the one standard of proof, as was suggested in R. v. Laz[40].

[39]At 210.

[40][1998] 1 V.R. 453 at 468-469.

As to Laz, to which I was a party, and other cases which are said to be critical of an undue reliance upon acts of consciousness of guilt, I should prefer here to express no opinion as it is unnecessary for the determination of this case. It is possible, but only possible, that some of the dicta in that case are inconsistent with later decisions of this Court and in particular with the observations of the majority, although expressed with great generality, in Zoneff v. The Queen[41]. Nor would I wish to make any comment on the extent to which evidence of consciousness of guilt is or is not used in criminal trials at the present: all I can say is that the present tests have produced about twenty appeals on the subject in the last two years in this Court and this is one of three consecutive applications for leave to appeal against murder convictions which I have heard which each have included grounds raising consciousness of guilt findings.
[41][2000] H.C.A. 28; 74 A.L.J.R. 895 esp. at 899-900 paras.[15]-[17].

Nevertheless, the apparent errors of the learned judge are of no consequence on this application. As I understand the Crown case to be a circumstantial case and that the claims of consciousness of guilt were directed towards that case, the onus of proof according to Edwards and Zoneff was too highly expressed by his Honour. That, of course, favoured the applicant and made it less likely that the jury would have made the relevant findings for the purpose of reaching its verdicts. As to the general comment which appeared to treat such a finding as effectively a finding of guilt, then although erroneous in the strict sense, it was merely an introductory observation, one which strictly did not form part of his directions on the subject and, if anything, made it more likely that the jury would view any such finding as one of gravity and not lightly to be reached.

All in all and having otherwise regard to the observations in the joint judgment relating to this matter, I would not uphold the specific objection. Furthermore, the more general part of ground 3, which appears to take objection that the judge’s directions as to the lies and consciousness of guilt were generally erroneous, lacks particularity and seems none the better for its exposition in argument. As I would understand it, counsel sought to argue that other examples of lies and consciousness of guilt should have been the subject of specific directions. They were not specifically relied upon by the Crown for that purpose, whatever otherwise may have been the merits of their relying on those items.[42] I would for myself not wish to express any views as to what might otherwise have occurred in this complex trial. If, however, the jury had decided to try to use the items in that way, notwithstanding they were not specifically relied on for that purpose by either counsel or judge, then they had entirely adequate and detailed directions on the subject of consciousness of guilt, together with a higher burden of proof than would otherwise have been appropriate for a circumstantial case. Consequently, the likelihood of their misusing these supposed additional items was negligible, if not non-existent.
[42]As to the need, on occasions, for a judge to give directions where the prosecution has not directly relied on consciousness of guilt, cf., e.g., Zoneff and R. v. Nguyen [2001] VSCA 1.

Ground 3 was therefore not made out and, for the reasons appearing in the joint judgment, none of the other grounds were made out in either application and each should be dismissed.

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[2001] VSCA 14

7 March 2001