R v Doherty

[2003] VSCA 158

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 319  of  2001

THE QUEEN

v.

ANDREW STEPHEN DOHERTY

---

JUDGES:	WINNEKE, P., VINCENT, J.A. and ASHLEY, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 2003
DATE OF JUDGMENT:	10 October 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 158

---

Criminal law – Murder – Circumstantial evidence – Whether jury’s verdict unsafe and unsatisfactory – Evidence sufficient to entitle jury to convict and no error in judge’s directions – Significance of failure of accused to give evidence in a circumstantial case discussed.

Sentence – 21 years with minimum term of 16 years not manifestly excessive.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. G.J.C. Silbert	K.  Robertson, Solicitor for Public Prosecutions
The Applicant in person.

WINNEKE, P.:

1. On 14 February 2000 the deceased, Vivienne Doherty, was bludgeoned to death with a steel bar in a bedroom of her house at 27 Larne Avenue, Donvale.   There was no dispute that the deceased had been murdered;  the issue for the police who investigated the crime was “who murdered her”?   On 9 March 2000 the police arrested, and charged with the murder, her husband, Andrew Doherty (the applicant) who, at about 3.30 p.m. on 14 February 2000, had summoned them to the scene of the crime.   At the time of his arrest the applicant was aged 50 years and had been married to the deceased for some 14 years.

1. It was apparent from investigations made on 14 February 2000 that the deceased had been killed by a series of blows to the back of her skull inflicted by a steel bar, which had been purchased, for a domestic purpose, some time before the incident by the applicant and kept in the bedroom of the house.   Forensic examination revealed that the deceased had been struck about seven times, some of the blows being inflicted after she had fallen face first to the floor.   Death was due to brain injury and appears to have been almost instantaneous.   The time of death could not be ascertained with any accuracy.   It certainly could not have been before 11 a.m. because that was the time when the deceased would, at the earliest, have returned to her home after taking her children to school, attending a parents’ meeting at the school, and leaving for home at approximately 10.50 a.m.   Independent evidence revealed those facts.   Nor could the murder have taken place after 3.25 p.m. on the day in question when the applicant rang the school to make arrangements for the care of the children, in the course of which he informed the school officer that he had found his wife dead in the bedroom.   Immediately following this call, the applicant rang the police who arrived shortly afterwards.   It thus became clear that the murder occurred between 11 a.m. at the earliest and 3.25 p.m. at the latest.   Forensic evidence was unable to confirm when, within this four-and-a-half hour period, the deceased had died.   The best that the pathologist could do was to estimate that death had occurred some 16 hours before the time of his examination (which was at approximately midnight on 14 February 2000 “plus or minus some four to five hours”).   The jury would have been entitled to infer that death occurred shortly after the deceased had arrived home in the morning from school, because her black leather bag was still hanging by its strap from her left shoulder.

1. The applicant, who is a man of previous good character, has always denied that he was the killer of his wife.   The case made against him by the Crown at his trial in late 2001 was entirely circumstantial.   The evidence before the jury made it clear that, at the date of her death, the marriage between her and the applicant was “all but over”.   They had met some 17 years before at a “singles’ function” organized by the local Church of Christ.   Each had been previously married.   The deceased had twin boys by her earlier marriage who were 21 years of age at the time of trial.   The applicant had no children from his previous marriage which was of short duration before it had ended in divorce.   The applicant and the deceased were married in or about 1985.   There were two children of their marriage (both boys) who were aged respectively 11 years and 9 years at the time of their mother’s death.   There was no dispute at the trial that, by the time when the deceased met her death, the applicant and the deceased were estranged, each of them occupying separate rooms in the house at Larne Avenue.   The evidence revealed that, for some time before the date of death, the deceased had been informing some of her friends that she wished to terminate the marriage and to live separately and apart from the applicant.   Four days before she met her death the deceased had enlisted the aid of one Martin Gillespie (a senior member of their Church congregation) to assist her in bringing it home to the applicant that she wanted to leave him.   When informed of this fact by Gillespie, the applicant (so Gillespie said) appeared “stunned”.   The applicant told police that he was aware of the intentions of the deceased but hoped that she might “change her mind”, although – as he said – the chances were “marginal”.  

1. The applicant and the deceased had pooled their resources to purchase their house at 27 Larne Avenue some 10 years before the deceased met her death.   The house was situated upon a large block of approximately one acre in a semi-rural area.   Not long before the purchase the applicant had left his former employment as a technician at Telecom and had received, by way of lump sum, a termination payment.   With some of the proceeds he had established a small engineering business which, in the events that happened, did not succeed.   By the date of his wife’s death he had few assets (apart from his interest in the house) and made little income.   Some years before 14 February 2000 the applicant had developed a disorder known as “chronic fatigue syndrome” which manifested itself in lassitude following exertion.   As a consequence he was accepted as a “disability pensioner” and the receipt of that pension appeared to be his major source of income at the time when his wife met her death.   Following the death of the deceased, the applicant made a number of statements to the police.   In those statements he told the police that, for a period of time prior to her death, his wife was constantly critical of him for not working and also criticized him for the manner in which he disciplined the children.   In a written statement made to the police in the early hours of the morning following the death of his wife, the applicant described the relationship which he had with her in the following way:

“My commitment to our marriage was total, however I would say we just had a marriage.   Even in the early stages the marriage just chugged along.   One factor causing strain was our continuing different sexual expectations.   I enjoyed sex, and she didn’t.   Vivienne was dogmatic and very judgmental.   This led to conflict and she would go crook about decisions I made in her absence.   For instance, if I was baby sitting and allowed the children to stay up for an extra half hour, she would go crook at me.”

The applicant then described how, early in the new year of 2000, his wife had told him that she was not going to sleep with him any more and that she had had “enough” of the marriage.   Following that, she had moved her things out of the main bedroom and, thereafter, she slept in the study.   Their relationship became “cooly civil” and, in effect, they led separate lives.

Case made by the Crown at trial

1. The case made by the prosecution against the applicant at trial was, as I have said, entirely circumstantial although, as it seems to me, the evidence given by one witness – Lisa Scerri – was an important part of that case.   The prosecution contended that the evidence supported the following propositions:

(a)That the deceased was murdered at a time approximating 11.45 a.m.;

(b)That before and/or after the killing, the murderer had taken steps to falsely make it appear that the deceased had interrupted a burglary at the house;

(c)That the applicant had lied to the police about his movements on the day of the killing and had persisted in those lies until it had become apparent to him that the police were aware of them;

(d)That the applicant had a motivation to “stage” the burglary and to kill the deceased;  such motivation to be found in his desire to prevent the impending separation and the sale of the joint property;

(e)There were other less significant matters upon which the prosecution relied and in respect of which it contended that the jury should be satisfied:

(i)the fact that the applicant had taken pains to establish an alibi for his movements on 14 February;  but was unable to establish an alibi for his whereabouts over a period of almost two-and-a-half  hours during which the murder was alleged to have occurred;

(ii)that the murder occurred when the deceased was struck from behind and was committed in a fashion (namely the delivery of seven blows) whilst the deceased was both standing and prostrate, indicating anger which, so it was alleged, was inconsistent with what could reasonably be expected from a person who had been interrupted whilst committing a burglary;

(iii)that there was no evidence of any money or goods having been stolen (save a statement made by the applicant to police some days after the murder that $800 was missing);

(iv)that there was scientific evidence which, although not conclusive, pointed to the applicant as the killer;

(v)that the dog of the applicant and the deceased – a doberman- normally barked loudly at any unknown intruder;  although there was no evidence that the dog had been barking at the relevant time.

Case made on behalf of the applicant at trial

1. The applicant gave no evidence upon his trial.   Although he stood mute, he called a number of witnesses to testify:

(i)that he was a person of good character and of generally mild mannered disposition;

(ii)that it was not the case that the applicant’s dog inevitably barked when strangers entered the house.

The applicant further contended, through his counsel, that the circumstances upon which the Crown relied to prove that the burglary was “staged” were equivocal and were equally consistent with an intruder who had been interrupted and surprised by the deceased in the course of a burglary in fact being carried out.   Furthermore, it was contended on behalf of the applicant that he had no motive to murder his wife and, for that purpose, relied upon the content of the statements which he had made to the police.   He further contended that, although he had lied as to certain of his movements, those lies were disclosed by himself and were in respect of immaterial matters, having regard to the Crown allegation that the murder had occurred before noon on 14 February.   In the course of the case made on his behalf at trial, a strong attack had been made on the evidence of Mrs. Scerri, as a consequence of which it was put that her credibility had been so undermined that no jury, acting reasonably, could rely upon any part – or any relevant part – of her evidence.

The evidence of Lisa Scerri

1. As I have already indicated, the evidence of Lisa Scerri, if accepted, was a potent piece of evidence pointing towards the guilt of the applicant.   If it was accepted as reliable by the jury, it undermined the applicant’s case that he was nowhere near his house in Larne Avenue between the time when he left it at approximately 9.30 in the morning and the time when he returned at approximately 3.20 in the afternoon.   Indeed, as I have previously remarked, the applicant had made several statements to the police as to his movements on the 14 February 2000 which, if believed, had him at various places consecutively throughout the six hour period.   Although he was able to verify, by the production of receipts, certain of the locations where he claimed to be, there was no documentary verification in respect of the period of more than two hours between 10.10 a.m. in the morning and 12.26 in the afternoon.   The thrust of Lisa Scerri’s evidence was that she had received a telephone call from her husband at approximately 11.30 in the morning requesting her to go to their local bank at Tunstall Square for the purpose of paying an overdue bill.   She said that at approximately 11.40 she collected her three year old son and left the premises for the purposes of entering her car.   She said that she heard a “moaning scream” of a female coming from the direction of the house occupied by the deceased and the applicant.   The property of the Scerri’s backed onto the Doherty’s property and, according to Lisa Scerri, the “unpleasant scream” which she heard came from the direction of that property.   Mrs. Scerri said that she drove her car out of their driveway into Drummond Close which was a “court” off Larne Avenue.   She drove to the corner of Drummond Close and Larne Avenue where she intended to turn right into Larne Avenue to drive towards Tunstall Square.   She said she saw no cars in the street as she turned into Larne Avenue but, as she went past the driveway into the Doherty property, she slowed down to have a look into that property because she was concerned on account of what she had previously heard.   She could see the car of the deceased parked in a position where it was normally parked when the deceased was at home.   Mrs. Scerri drove on along Larne Avenue towards its intersection with Conway Avenue, some 175 metres further on.   She said that as she passed Conway Avenue she looked to her right and she saw the distinctive converted ambulance, white in colour, commonly used by the applicant proceeding away from her up the hill in Conway Avenue.   She said that it “registered with her” that the deceased and the applicant may have had what she described as a “domestic”.

1. This evidence of Mrs. Scerri was strongly attacked by defence counsel as a figment of her imagination.   The basis of that attack was that she had made no statement to the police to the effect of her evidence until 28 February – i.e. some two weeks after the murder.   No statement had been made by her to that effect notwithstanding that she had spoken to the police on two occasions in the days following the killing.   In the course of the statements which she made to the police she had referred to various things she was doing on the morning of 14 February but had said nothing about the “scream” or the sighting of the applicant’s vehicle.   The explanation which she gave for this omission was that she was in a state of what she described as “real shock” after being informed of the murder of the deceased, and that the matter of what she had heard and observed had been repressed and did not appear to be relevant.   She said that, at some time after she had made the early statements, she thought that she should tell the police of her observations but her husband had become “furious”, advising her not to “become involved”.   Although she delayed, her conscience had finally prevailed, and she rang the police on 27 February, which led to the taking of a statement on the following day.   Even in that statement she had said that she was not “100% certain” that the sighting of the applicant’s vehicle in Conway Avenue had been on 14 February.   In the course of giving her evidence, she claimed that she had used that expression partly to appease her husband and partly because it was “such a big statement to make”, and she wanted to be satisfied in her own mind that the two events which she remembered – namely the scream and the sighting of the ambulance – occurred on the same morning.   In the course of the trial she was adamant that such was the case because, as she said, she could recall saying to herself, when she saw the applicant’s vehicle, words to the effect of “bingo, there’s been a domestic”.

1. The attack on Mrs. Scerri’s credibility was substantial and sustained;  and it had a basis.   In the long run, of course, the jury had to determine what to make of it.   In that respect they had the benefit of substantial addresses from both counsel and full directions from the judge, to which no objection was taken.   Although it might have seemed odd to the jury, at first blush, that Mrs. Scerri had not volunteered her observations at the first opportunity, it must be remembered that, at the relevant time, she had no reason for believing that the applicant would have been suspected of murdering his wife, nor would she have had any knowledge that the applicant was contending to the police that he had been nowhere near the home on that day between 9.30 in the morning and 3.15 in the afternoon.   If, however, the jury accepted the evidence of Mrs, Scerri, it was – as I have said – a potent piece of evidence amongst the body of evidence relied upon by the Crown.

Further evidence relating to the movements, or potential movements, of the applicant’s vehicle

1. The Crown led evidence from one Babette Bruders, a “remedial educator”.   At approximately 11 a.m. on the morning of the 14 February 2000 she was travelling from Warranwood to Doncaster along Park Road towards Mitcham Road.   In that direction of travel she passed the intersection of White Lodge Court, with which street Larne Avenue intersects.   When she was approximately one kilometre from Mitcham Road her vehicle ran out of petrol.   She had with her her young child, and they commenced to walk towards Mitcham Road where she knew there to be a petrol station.   After they had walked approximately half a kilometre she noticed a converted ambulance, white in colour, coming towards them.   Her attention was directed towards it because she had a friend who owned a similar vehicle.   As the converted ambulance passed them she noted that it contained only the male driver.   The prosecution contended that this piece of evidence was significant notwithstanding that Mrs. Bruders could not conclusively identify the vehicle which she had seen as the one owned by the applicant.   Its significance, so it was said, was to be found in the time and the vehicle’s direction of travel.   The route being taken, so the Crown alleged, would be the route of travel expected to be taken by the applicant if he was driving his vehicle from Nunawading to his home in Larne Avenue.   From the evidence of the receipts accumulated by the applicant, and ultimately left by him on the hall table in the house at Larne Avenue, the applicant had been at Hardware House in Nunawading at 10.10 a.m. on the morning in question.

Evidence of other circumstantial facts relied upon by the prosecution

1. It was the Crown’s case that the evidence showed that the applicant was falsely contending that there had been a burglary at the house.   Rather, so the Crown alleged, the burglary was contrived so as to make it appear that some unknown intruder had entered the house, killing the deceased when she surprised him.   The evidential facts relied upon by the prosecution to support that conclusion included:

(a)The fact that, in the silence of the valley through which Larne Avenue ran, no one had heard any excited barking from the doberman dog owned by the applicant and the deceased.   It was highly unlikely, so the Crown suggested, that an unknown intruder would venture into premises where such a dog existed;  and that, if he had, he would not be able to remain there long without the dog becoming excited.

(b)The point of entry into the premises was said to be the boys’ bathroom window at the front of the house.   Although the window bracket and its chain winder had been “jemmied” away from its base plate, there was no evidence, so the Crown contended, that the window had been penetrated by any person.   Cobwebs running from the window sill down to bikes stored below remained unbroken, and the accumulation of dust along the sill of the window remained undisturbed, as did bars of soap which were lined up along that sill.   Furthermore, the police crime scene examiner could find no disturbance of the film of dust on the vanity cabinet below the window or any impressions of shoe prints of persons who entered the house via the window.   The scene within the house, so the police witnesses contended, was inconsistent with a “genuine interrupted burglary”.   This was because, so those witnesses said, drawers in two separate rooms (namely the master bedroom and the study) had been opened or removed and their contents dumped in piles on a bed or the floor.   Yet none of the piles of contents had the appearance of being “sifted through” in either bedroom;  and valuables such as cash and jewellery were simply left undisturbed.   There was nothing, so said the police crime scene examiners, which suggested that anything had been taken away, and there was nothing left behind to identify an intruder who was foreign to the family.   Searches for fingerprints and/or traces of biological material – other than those left by the deceased and the applicant and their children – proved fruitless.   Although, in the family room, a CD player and a VHS video recorder and cassette tapes had been removed from their shelves and placed in a bag, that bag remained where it was.

(c)There was evidence of biological testing of certain items.   One item was a sock worn by the applicant;  and the other was the murder weapon which had been found beside the body of the deceased.   Forensic evidence was that there was a stain on the front top of one of the applicant’s socks.   Although that stain did not ultimately test absolutely positive for blood, it nevertheless gave DNA results upon typing.   The results indicated a mixture of biological material;  the major contributor to that biological mixture being the deceased to a probability of 30 billion to one.   The swabs taken from the murder weapon also disclosed a biological mixture, the major portion of which clearly was contributed by the deceased.   There was evidence consistent with a minor contribution from the applicant but that, as the forensic scientist conceded, could have been due to the handling of the metal bar over a period of time in the days or weeks previously.

(d)      “Cover up” by the applicant of his movements on 14 February

It was the Crown contention that the applicant had been astute to record his movements on the 14 February by collecting receipts from the various places where he had been.   Those included receipts for payment of rates and telephone and water charges at the Tunstall Square shopping centre shortly after 9.30 a.m. on that day.   The receipt from the post office for the payment of water and phone charges bears the time of 9.39 a.m.   The next receipt is from Hardware House in Whitehorse Road, Nunawading, which bears the time of 10.10 a.m.   Thereafter the next receipt is from the Nunawading Library which is across the road from Hardware House.   That receipt bears the time of 12.26 p.m. and records a book, “The Technique of Glass Forming”, taken from the library by the applicant.   After 2 p.m. there was further documentary evidence of the applicant’s presence at commercial outlets in Boronia, Bayswater and Ringwood.

(e)Senior Detective Moir from the Doncaster Police Station arrived at the applicant’s premises shortly after 3.40 p.m. on 14 February 2000.   She asked the applicant various questions about his movements on that day.   The applicant, whom she said appeared genuinely upset, told her that he had left home at about 9.30 a.m., when his wife had already left to take the children to school.   Amongst other things she asked:

“Where did you go when you went out.”

To which the applicant replied:

“I went out and paid a few bills, went to the library, Eastland shops, Boronia Scrap Metal, Waugh’s;  I took back a gas bottle to Bayswater.   I went to Troy Music in Ringwood and I came home.”

This was the first account given by the applicant of his movements on the relevant day.   It was repeated and expanded in a statement which he made to the police at the Doncaster police station later that night, and signed by him at the police station early in the morning of the following day, namely 15 February 2000.   In the course of that statement he said:

“Around 9.30 a.m. I got into my car which is a white F100 and drove to Tunstall Square shopping centre.   I went to the post office and paid the telephone and water bills.   I then went to the National Bank and paid the rates.   I then went to Hardware House in Whitehorse Road, Nunawading.   I then went to the Nunawading Library and returned some books.   I spent some hours at the Library reading magazines and lead lighting books.   I borrowed a book about art glass.   It would have been about 12.30 p.m. or so when I left the Library.   I then went to Eastland Shopping Centre where I spent some time looking for a musical instrument shop.   Bryce is learning the cornet and seems to be doing well so I was considering buying him a new instrument.   I couldn’t find a musical instrument shop in the complex so I left.   From there I went to a recycling scrap metal merchant at Canterbury Road, Bayswater, to drop off four bags of aluminium cans I had collected.   I spoke to a  young chap who recorded my name and gave me $9 cash for the cans.   It was approximately 2 p.m., possibly later, when I arrived at the metal merchant.   I was there for only 5 or 10 minutes.   I then went to Waugh’s which is an industrial supplier in Malvern Road, Bayswater.   I there returned a gas cylinder I had hired some time ago.   They provided me with a docket to verify the return of the cylinder.   By the time I left there it was getting fairly close to 3 p.m.   I then stopped at Troy Music in Whitehorse Road, Ringwood.   I went in there and spoke to a man about a cornet.   They don’t sell them but they said they could get one in.   He offered what I believe to be a crook brand so I thanked him and left.”

As the Crown pointed out to the jury, there were two unverified gaps in this statement of the applicant’s movements.   The first was the “some hours” which he said he spent at the Library in Nunawading reading “magazines and lead lighting books”.   There is no doubt that he had borrowed a book about “art glass” at about 12.30 p.m.   That is verified by the computer printout from the Library.   No one was able to verify the earlier period of some two-and-a-half hours between the time when he borrowed that book and the time when he had left Hardware House on the opposite side of Whitehorse Road.   If he had been able to remember the names of the books which he claimed to have “returned” to the Library, there may have been some verification of the time of return from the Library records relating to the movement of a particular book.   He was unable to remember the names of those books which he claimed to have returned.   It was the Crown contention that the applicant was not telling the truth in relation to his movements during this period;  it being alleged that, during that time, he had been seen driving his vehicle in Park Road by Mrs. Bruders;  and later seen driving his vehicle in Conway Avenue by Mrs. Scerri.   The other period in respect of which there was no verifying document was the period between approximately 12.30, at which time he said he had left the Library after borrowing a book, and 2 p.m. when he went to the scrap metal merchant in Canterbury Road, Bayswater.   During this period he claimed to have been at the “Eastland Shopping Centre” looking for a musical instrument shop.   On the following day (i.e. 15 February) at about 12.25 p.m. Sergeant Jenks from the Homicide Squad rang the applicant to seek verification of his movements.   In particular, he wanted the applicant to tell him about his movements at the Eastland Shopping Centre.   The applicant told him that he did not know the names of the streets but that it was in the street where the Ringwood Police Station is.   The applicant said to Jenks:

“I drove into the car park through that 2.8 metre high door.    I can get the ambulance in that one.”

Jenks said:

“Where did you park?”

To which the applicant replied:

“In that car park, the undercover car park, against the west wall.”

Jenks then enquired:

“Then what did you do?”,

to which the applicant replied:
           “Walked around the two levels of the mall.”
Jenks asked him:
           “Which shops did you go into?”,
to which the applicant replied:

“I didn’t go into any of the shops.   I was looking for a musical instrument store and there wasn’t one, so I left.”

Jenks then asked him what entrance he had used from the car park to enter the shopping centre, to which the applicant replied:

“You walk straight in from the car park.   When you go through the door there’s a supermarket on the left as you walk in.”

He was then asked what clothes he was wearing to which the applicant replied:

“I had the same clothes on all day.”

He was further asked:

“Can you think of anything else?”,

to which the applicant replied:

“I purchased an ice cream from McDonalds.   They are 30 cents there and I sometimes buy them.”

He said that this had occurred “in the mall, food court”, to which Jenks had replied:

“Thanks.   I have to check out what you’ve told us.”

Nothing more occurred until 6 March 2000 when the applicant sent a facsimile to the police addressed to Mr. Jenks on the Homicide fax number.   This facsimile was as follows:

“On page 3 of my statement dated 15 February 2000 I said that I wandered around Eastland Shopping Centre looking for a cornet.   That was not true.   I made that up because what I did seemed to me at the time to be an unsubstantial explanation.   It was a stupid thing to do brought on by shock and fear.   Actually I went to Blackburn Lake where I sat on a bench in the shade and read my book while lunching.   I then strolled around the lake.   From there I went to Bayswater as indicated.”

1. The Crown alleged that the applicant had told deliberate lies to the police, seeking to construct an alibi to cover his tracks.   It also alleged that his late change of story about visiting the Blackburn Lake was also a lie developed for the same purpose at a time when he knew that his movements during the relevant period could not be traced.   It further alleged that he had persisted in the story which he had originally told until he was aware that the police could check that part of his story relating to the “Eastland Shopping Centre” by recourse to video films taken by security cameras at the shopping centre.   Even then, so the Crown alleged, he had delayed changing that part of the story until sufficient time had elapsed to make sure of the fact that his explanation about being at the Blackburn Lake could not be verified.   These were deliberate lies, so the Crown contended, which the jury could use as proof of guilt emanating from a realisation that the truth would implicate him in the crime charged.   That he regarded himself as a potential suspect in that crime became apparent from the answers which he gave to the police in his Record of Interview following his arrest on 9 March 2000.   When asked about his preceding statements to the effect that he had gone to the Eastland Shopping Centre after leaving the Library, the following exchange occurred:

“I actually went to Blackburn Lake.”

Q.     “Why did you say you went to Eastland Shopping Centre?”

A.“Where as I indicated in the fax that what I’d actually done was – as far as I was – thought at the time was not a very good explanation so far as you would be concerned as to where I’d been, and so I did say I’d been to Eastland.”

Q.“When did you decide to write that out to change or notify us that in fact you were incorrect in what you’d told us and you wanted to tell us that you went to Blackburn Lake, when did you change your mind on that?”

A.“I’d been worrying about it for some time and I’d finally decided I needed to be honest about where I’d been.   As you see, Blackburn Lake isn’t any better excuse than Eastland but for my own conscience I thought I’d better notify you.”

…       

Q.“Right, when you were making a statement to … Detective Sergeant Jenks, when did you decide that you would say that you went to Eastland Shopping Centre?”

A.       “Very early in the piece, I knew that I’d be a prime suspect.”

The applicant’s response to prosecution evidence

1. As I have already noted the applicant gave no evidence upon his trial.   He was content to rely upon his record of interview, and the earlier statements which he had made.   He nevertheless led evidence from a number of people who testified as to his character.   The witnesses testified that he was an honest, trustworthy and diligent person of a gentle disposition.   Other evidence was led suggesting that the dog did not always bark when people entered the premises;  and there was evidence from the applicant’s father confirming the applicant’s interest in glass and lead lighting, and in the Library and its books.

1. The case made on behalf of the applicant, in response to the prosecution evidence, was that that evidence was equivocal and incapable of satisfying the jury to the requisite standard that the applicant was the killer of his wife.   Every aspect of the evidence upon which the Crown relied was put under the microscope by the applicant’s counsel.   There was nothing in the evidence, so it was contended, which excluded the possibility that the deceased was murdered by a stranger who had been interrupted in the course of a burglary.   In particular, it was put that the crime scene examination made it clear that the drawers had been pulled out in the master bedroom and objects strewn about the room before the deceased had been battered to death, because the blood spatter was upon those drawers and objects and not underneath them on the floor.   Furthermore, it was put that the evidence that the intruder had not come through the bathroom window was far from compelling, because there were marks of disturbance on the stool beneath that window and the Crown had conceded that entry could be gained without disturbing the objects or the film of dust on the window sill and vanity basin.   In any event, it was said that the nature of the day was such as to enable dust to accumulate between the time of the murder and the time when the crime scene examination had taken place.   It was put on behalf of the applicant that it was impossible to rationalize what intruders do, or might do, once they are interrupted.   There was nothing in the evidence given by the police officers who investigated the killing of the deceased which proved that burglars in that situation would flee without attacking the person who had interrupted them.   Indeed, it was put that the burglar who broke into this house by the bathroom window was probably one in an irrational state as burglars frequently are.   Nor could it be said that the mere fact that the articles collected for removal in the house – but not taken – suggested that the burglary was “staged”.   Rather, it indicated a realization of the enormity of what had occurred and an exit from the scene as quickly as possible without taking the stolen objects for fear of later incrimination.   In any event, the applicant had later found – and told police – that $800 was missing from the top drawer in his bedroom.   It was put that the lie told about being in Eastland Shopping Centre was no doubt told out of a desperate fear of being wrongly implicated in the killing of his wife;  and, in any event, it was not a lie which was material in the circumstances because the Crown was not suggesting that the deceased was killed during the period of time when the applicant was, as the Crown contended, misrepresenting his whereabouts.

1. Furthermore, it was put on behalf of the applicant that the evidence of Mrs. Scerri and Mrs. Bruders could not satisfy the jury that the applicant was driving his ambulance in the vicinity of 27 Larne Avenue at the times nominated by those witnesses.   In the first place it was put that the credit of Mrs. Scerri had been destroyed by the fact that she had said nothing about the matters that she had heard and observed until some two weeks later, and even then in a less convincing form than the way in which she gave her evidence.   So far as Mrs. Bruders was concerned, it was put that the vehicle which she had seen was not the vehicle of the applicant because the latter vehicle had a black bonnet.   Counsel for the applicant put it to the jury that the evidence relied upon by the Crown was too vague and equivocal and left too many unanswered questions to enable the jury to be satisfied to the requisite extent of the applicant’s guilt.   For example, it was put that Mrs. Scerri’s housekeeper, who attended her house at about 12 o’clock on 14 February, had seen an unidentified old vehicle parked outside 27 Larne Avenue facing “the wrong way”.   That piece of information had excited the police to the point where they made many enquiries to try and exclude it as a relevant piece of evidence but were unable to do so.   Counsel for the applicant relied heavily upon the character evidence called on behalf of the 50 year old applicant and contended that it was preposterous to suggest that this 50 year old man of a caring and gentle nature would so brutally murder his wife of 14 years simply because their marriage was in a parlous state and she was desirous of leaving him.   It was clear, so counsel submitted, that the killer of the deceased must have accumulated a great deal of her blood on his clothing.   That much was conceded by Sergeant Ashley who was the “blood spatter expert”.   It was an insufficient explanation, so it was put, for the Crown to contend that the applicant had no doubt changed his clothing and discarded that which was incriminating.   Furthermore, it was put that the biological material which had been found at the top of one of his socks could easily have been the product of inadvertent contact with the body of his wife at the time when he found her.

1. The instructions which were given by the judge to the jury following the addresses of counsel appear to me to have been full and appropriate, and accurately put to the jury the respective cases made on behalf of the prosecution and the applicant.   There were further directions made to clarify certain factual issues in respect of which counsel had sought redirections;  and during the course of the charge, counsel for the applicant had submitted that the jury should be told that the lies upon which the Crown had relied to demonstrate consciousness of guilt could not do so because it had not been shown that they were “material”.   His Honour declined counsel’s invitation and the directions which he gave to the jury were not the subject of further exception.

1. After a trial which had lasted approximately two weeks, the jury finally retired to consider their verdict at about mid-day on the 17 August 2001.   After a retirement of four-and-a-half hours, they returned a verdict of guilty.   His Honour then adjourned the matter for sentencing on a date to be fixed.   On the 16 November 2001 he entertained a plea in mitigation of sentence;  and finally imposed sentence on 7 December.   His Honour accepted that the applicant, who by then was aged 52, was a man of otherwise good reputation.   He further accepted that until 1991 he had been in regular employment with Telecom for some 24 years.   He noted that the applicant had suffered a series of financial set-backs and had developed a serious health problem.   His Honour indicated that it was not possible for him to determine precisely when the intention to kill the deceased was formed in the applicant’s mind, but that it was reasonable to infer that his meeting with Mr. Gillespie on the Friday preceding the death played a significant part in the decision to murder her.   His Honour took the view that it was impossible to determine whether the intention to kill had been formed on the days preceding the murder or whether it was a decision taken, opportunely, when the chance arose on the Monday morning.   His Honour did find, however, that the fact that the applicant had retained a number of commercial documents enabling him to account for some of his movements on the Monday morning suggested a degree of premeditation.   Nevertheless, he was not prepared to draw that inference beyond reasonable doubt.   He thus sentenced the applicant “on the basis that the degree of premeditation involved in this murder was no more than that necessary to account for the formation of the necessary … intent”.   The judge further found that the attitude which had been adopted by the applicant after the death and up to the trial demonstrated that he had no remorse for the crime which he had committed;  nor was there any indication in the medical reports submitted to the court of what it was which precipitated the criminal activity.   His Honour referred to a psychologist’s report – from Mr. Healey – indicating that the applicant was a depressed person but that his intelligence ranked him “in the 95^th percentile”.   His Honour concluded that “overall it would appear that you are an intelligent, introspective, somewhat withdrawn person prone to episodes of depression to a greater or lesser extent”.   Nevertheless, as his Honour said, the applicant had engaged in “an extreme form of domestic violence” which had to be visited by condign punishment.   He accepted that the applicant was unlikely to offend again and posed no threat to community safety but that his crime demanded that the sentence reflect punishment for the wickedness that he had demonstrated.   He sentenced the applicant to a period of imprisonment for 21 years and ordered that a minimum period of 16 years be served before the applicant would become eligible for parole.

The appeal to this Court

1. The applicant has applied to this Court for leave to appeal against both conviction and the sentence imposed.   The only ground specified in the application for leave to appeal against conviction is that the trial judge, in his directions to the jury as to the “Eastland lie”, erred in failing to adequately identify the factual matters in considering whether the lie “was due to guilt” and in failing to tell the jury that there may be “other reasons which could cause it”.   In respect of the application for leave to appeal against sentence, the only ground taken is that the “sentence was harsh and extreme when considered against the circumstances”.

1. The applicant appeared in person before this Court and conducted his own appeal.   He strayed well beyond the ground outlined in his conviction application.   The Court gave him as much latitude as could be given to an unrepresented litigant notwithstanding the fact that the applicant’s argument was both lucid and well presented.   In essence, his principal contention was that the verdict was unsafe and unsatisfactory in the sense that the evidence was insufficient to enable a jury, acting reasonably, to convict.   In support of that ground, the applicant contended that there was no evidence as to his whereabouts during the day and no evidence that he was at the house in Larne Avenue between 9.30 in the morning and 3.20 in the afternoon.   The Crown case, the applicant contended, was “a house of cards built on an illusory foundation” and that the police had been less than diligent in the investigation of the case.

1. Secondly, the applicant contended that the prosecutor had set out to confuse the jury by presenting two conflicting “scenarios” without differentiating the evidence in relation to each;  and furthermore had failed in his duty by going beyond the dispassionate presentation of the evidence to a “position of winning at any cost”.  

1. The third ground taken by the applicant was that his own counsel was negligent and/or incompetent in a number of areas and fell short of the expertise expected for the proper presentation of the defence.   Finally, it was submitted that the trial judge had wrongly failed to discharge the jury when it became clear that it was prejudiced by a newspaper article published on the morning after the prosecutor’s opening address, and in failing to postpone a re-trial because of the media-induced bias.   It was also submitted that his Honour had erred in his directions to the jury by failing to direct that “the lie” could be due to reasons other than consciousness of guilt.   Further, his Honour had advanced issues to the jury that had not been canvassed by the Crown.

1. In seeking to support the proposition that the verdict was unsafe, the applicant made an analysis of individual items of evidence in much the same way as his counsel had done on the trial.   In a number of respects, in making this analysis, the applicant went beyond the evidence which was before the jury and resorted to evidence given on the committal proceedings.   It was largely because of the lack of familiarity which the applicant has with the nature of the appellate process that I have taken the liberty for myself of looking at the transcript of evidence in detail.   It is, also, for the same reason that I have referred, at length, to the evidence given on the trial and the arguments made by trial counsel in respect of that evidence.  

1. It was apparent, both from the written and oral submissions made by the applicant, that he was challenging many individual aspects of the evidence upon which the Crown had relied for the purpose of making its case against him.   Amongst other things, he challenged the “motive” upon which the Crown relied;  he challenged the Crown’s analysis of what it described as the “alibi” of the applicant;  he challenged the prosecutor’s description to the jury of certain aspects of the evidence including the nature and effect of the applicant’s illness, and the purpose for which the deceased kept a calendar in the house.   He complained of the inability of the prosecutor to establish whether the crime was “planned” or “unplanned” and the mis-description of the evidence about the habits of the dog.   The applicant challenged the reliability of the evidence of Bruders and of Scerri, making essentially the same points as had been made by his counsel during the course of the trial.   The applicant further contended that his persistence in the explanation that he had gone to the “Eastland Shopping Centre” could not be regarded as probative of guilt but rather as an act of panic “to bolster an otherwise true defence”.   Further, in his written submissions, the applicant contended that the evidence was insufficient to enable the jury to find that the burglary was “staged”.   Once again, he made similar arguments to those which had been put to the jury by his counsel.

1. Notwithstanding the apparent logic in the applicant’s arguments as to the evidentiary value of some of the individual circumstances which the Crown set out to prove, the arguments tend to lose sight of the fact that the jury in this case was being asked to determine whether the body of circumstantial evidence, viewed as a whole, could satisfy the jury to the requisite standard that the applicant was the killer.   This Court necessarily recognizes that the unrepresented applicant, who is unfamiliar with the rules of evidence and procedure which govern trials in which the prosecution relies on circumstantial evidence to prove guilt, is at a substantial disadvantage.   That is one of the reasons why we have so carefully reviewed the evidence and the trial judge’s instructions in respect of that evidence.   His Honour correctly told the jury that the case was “a circumstantial” one, and that the ultimate issue for their determination was whether the applicant was the killer of his wife.   He correctly told them that they could only make such a conclusion by drawing an inference from the facts they had found to be proved and that the ultimate fact which they had to determine could not be found unless they were satisfied beyond reasonable doubt that there was no reasonable inference consistent with innocence;  or ”no reasonable inference consistent with the accused not having committed the crime”.   His Honour told the jury on more than one occasion that they could not draw the ultimate inference against the accused “unless it is the only inference reasonably open on the evidence” and that “if there is any other inference reasonably open on the evidence then the accused is entitled to be acquitted”.   He went on to tell the jury that “to put it another way you must exclude all inferences suggestive of innocence.   It is putting it around the other way.   That the accused killed the deceased must be the only inference reasonably open on the evidence when you have examined all the evidence.   It follows from that that if any particular fact, when you are building up this mosaic, is indispensable to your conclusion, then that fact must be proved beyond reasonable doubt.”   His Honour further directed the jury that because of the significance of one of the issues of fact relied upon by the Crown – namely that the burglary was “staged” or “contrived” – they should be satisfied of that fact beyond reasonable doubt before using it as a basis for the inference of guilt.

1. The directions given in respect of the manner in which the jury was to go about its task appear to me to have been appropriate directions to meet the circumstances of this case;  perhaps they may have been even too favourable to the accused.   As Dawson, J. said in Shepherd v. The Queen[1]:-

“… It may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt.   Not every possible intermediate conclusion of fact will be of that character.   If it is appropriate to identify any intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn.   But where – to use the metaphor referred to by Wigmore on Evidence, Vol.9 (Chadbourn Rev. 1981), Par 2497, pages 412-414 – the evidence consists of strands in a cable rather than links in a chain it will not be appropriate to give such a warning.   It should not be given in any event where it would be unnecessary or confusing to do so.   It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”

[1](1990) 170 C.L.R. 573 at 579.

1. It seems to me that the judge’s directions in this case were more than adequate to inform the jury of the task which they were obliged to perform and, as I have said, no exception was taken to them.   This was a case where the Crown set out to prove that what was conceded to be the murder of the deceased was committed by the applicant.   The only essential fact which had to be proved, and proved to the requisite standard, was the identity of the killer.   No one had seen the crime committed and the ultimate fact which was to be found by the jury beyond reasonable doubt fell to be inferred from the accumulation of facts of which the jury were satisfied.   It was not each individual piece of evidence upon which the Crown relied which had to be proved beyond reasonable doubt.   It is pointless to consider the degree of probability of each item of evidence separately.   It is the probative force of the body of evidence, looked at as a whole, from which the ultimate inference of the fact to be proved (in this case, the identity of the killer), must be capable of being drawn beyond reasonable doubt.   It is this aspect of the jury’s task which the applicant’s written and oral submissions to this Court have failed to appreciate.   Those submissions are directed to the probative value of individual items of fact upon which the Crown relied in proving guilt.   As I  have said before, this is no criticism of the applicant, who is not a lawyer, and who, no doubt, is unfamiliar with the manner in which juries are instructed to consider cases which depend for their proof upon circumstantial evidence.   As Tadgell, J.A. said in the case of Transport Industries v. Longmuir[2] (a civil case in which circumstantial evidence was relied upon to prove an insurance fraud by arson):

   [2][1997] 1 V.R. 125 at 141.

“… it should be said that, to assess the evidence in a case like this by reference to various individually-pleaded particulars, as though running through items on a check list, is apt to mislead.   The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. …   A true picture is to be derived from an accumulation of detail.   The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole.”

Although the standard of proof is different in a civil case, the principles are as much applicable to civil cases as they are to criminal cases.   As Gibbs, C.J. and Mason, J. said in Chamberlain v. R. (No.2)[3]:

“It follows from what we have said that the jury should consider whether they accept the evidence of a particular fact not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from the combination of facts, none of which viewed alone would support that inference … . When the evidence is circumstantial, the jury, whether in a civil or criminal case, are required to draw an inference from the circumstances of the case;  in a civil case the circumstances must raise a more probable inference in favour of what is alleged;  and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence … .”

The judge’s directions in this case were, as I have said, appropriate to the circumstances of the case and properly directed the jury’s mind to the task which it had to perform.   I think his Honour was correct to instruct the jury that they could not use the fact that the burglary was “staged” in arriving at their ultimate conclusion that it was the applicant who committed the murder, unless they were satisfied beyond reasonable doubt that that inference was the only one open to them on the evidence.   Although this was essentially a “strands in a cable” case, there may be some facts in such a case on which the Crown relies which are so influential that, standing alone, they can be seen to constitute indispensable links in a chain of sequential reasoning towards guilt[4].   His Honour appears to have regarded the fact that the burglary at 27 Larne Avenue was “a staged burglary” as capable, in itself, of identifying the applicant as the killer.   Whether he was correct in this analysis or not is immaterial because, as I previously said, the directions which he gave on this point may have been favourable to the applicant.   No doubt that is why no exception was taken to them by the experienced counsel who appeared for the applicant.

[3](1984) 153 C.L.R. 521 at 535 ff.

[4]cf. Shepherd v. The Queen, supra, at 579 per Dawson, J.; Edwards v. The Queen (1993) 178 C.L.R. 193 at 210, per Deane, Dawson and Gaudron, JJ.; R. v. Kotzmann (No.1) [1999] 2 V.R. 123 at 140 per Batt, J.A.

1. The applicant’s written submissions, insofar as they relate to the ground which I am presently considering, contend that the evidence was insufficient to enable the jury to convict. This is really a reference to s.568 (1) of the Crimes Act which empowers this Court, upon any appeal against conviction, to allow the appeal “if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence …”.   For the reasons which I have sought to explain that ground cannot be made good.   There was, as it seems to me, sufficient evidence which the prosecution was able to put before the jury from which the necessary inferences could be drawn.   It was not suggested, nor am I of the view that it could have been suggested, that there was no evidence to go to the jury in the sense used in May v. O’Sullivan[5].   Although the applicant did not specifically contend that this Court ought to enter a verdict of acquittal, I apprehend that that was what he was seeking in putting forward his arguments in respect of this ground.   However, it is apparent from what I have so far said that the evidence was not deficient in the respects maintained by the applicant and that it is quite impossible to conclude that the jury were not entitled to convict on the material put before them.   Whether one is able to categorise the Crown case as strong, is of no consequence.   The fact is that there was, in my opinion, a quantity of evidence which entitled the jury, acting reasonably, to convict the applicant.   In this respect, there is another factor which it is necessary to mention.   The accused, as I previously stated, stood mute.   Whilst it is true that he is not obliged to give evidence, and that his failure to do so was not capable of being made the subject of comment by the judge, or the prosecutor, and that the failure could not be regarded as evidence of guilt, it was nevertheless not irrelevant for all purposes, as the predecessor of this Court has previously noted[6].   In Neilan’s case, the Court, comprising the Chief Justice, Brooking and Marks, JJ., said that the failure of an accused man to give evidence in a circumstantial case, similar to the present, was “not irrelevant for all purposes” in the appellate court. As their Honours said (at pages 65-66):

“The jury is entitled, as are we, to consider that the silence of the accused permitted a more ready acceptance of the Crown case.

Moreover, the silence of an accused will be of greater weight where it appears that he alone is able to explain the true facts surrounding a relevant incident.   R. v. Sharmpal Singh (1962) A.C. 188 at 198, R. v.  Voisin [1918] 1 K.B. 531 at 537. …

In R. v. McGibbony [1956] V.L.R. 424 at 428-9, the Full Court said ‘The Solicitor-General contended that in testing the reasonableness of the verdict the Court was entitled to take into account the fact that the accused had not given evidence because, as he contended, the jury were entitled to take this into account in arriving at its verdict. Putting aside for the moment the prohibition against comment contained in s.432(b) of the Crimes Act 1928, we think a jury is entitled to take into account the fact that an accused person has not given evidence though of course only for limited purposes … . The purpose of the legislature enacting s.432(b) was to prohibit such comment except in certain circumstances. But it goes no further than this, and where comment has been made without any contravention of the prohibition the jury may still use the accused’s failure to give evidence as it could have done before the enactment.’ “

Those comments are as relevant to the instant case as they were to the case in Neilan[7].

[5](1955) 92 C.L.R. 654.

[6]R. v. Neilan [1992] 1 V.R. 57 at 65-66.

[7]See also Weissensteiner v. R. (1993) 178 C.L.R. 217 at 224-228, per Mason, C.J., Deane and Dawson, JJ.

1. It was next argued by the applicant that the prosecutor presented a case to the jury which shifted its ground.   In essence, as I understood him, the applicant was suggesting that the prosecutor started out to prove a case of murder on a premeditated basis, but subsequently resiled from that to suggest that the murder might have been unpremeditated.   As I apprehend the point being made by the applicant, it centred around the state of the room in which the deceased was killed.   It was put that the prosecutor had at one stage suggested that the deceased had been killed after the various contents in the room had been so arranged as to make it appear that an intruder had killed the deceased.   Later when the evidence suggested that some of the drawers, which had been pulled out or upturned upon the floor, had “spattered” blood upon them, the prosecutor alleged, so it was contended, that the items removed from the drawers, and the drawers themselves, had been arranged in position before the deceased was killed.   The complaint was, as I apprehend it, that the “first scenario” suggested an unpremeditated killing, whilst the latter one suggested a premeditated killing.   This was the equivalent, so it was contended, of a failure properly to particularise the case being made by the Crown and, thus, to have rendered the trial unfair[8].   However, this was not a case where, as I read the transcript, the Crown had changed its ground at all.   It was contending that the burglary was “staged” but was unable to say whether the “set up of the contents of the house” was constructed before the killing or after, or both.   The applicant further contended that, in that event, the Crown’s inability to “say one way or the other” rendered its case speculative.   However, the essential point of the Crown’s case was that the burglary was “staged”.   Although this matter was laboured by the applicant upon the hearing of this appeal, I am satisfied that it has no foundation in fact or law.   The matter was addressed by both counsel in their addresses to the jury, with the defence counsel pointing to the fact that the evidence of Sergeant Ashley suggested clearly that this was “an interrupted burglary”;  a fact which in itself should cast doubt on the Crown’s proposition that the burglary was “staged”.   All of this was put squarely before the jury for its consideration by the trial judge in his directions, and no doubt contributed to his Honour’s directions that the “staging” of the burglary as alleged by the Crown should not be a fact taken into account by the jury in determining guilt unless they were satisfied of it beyond reasonable doubt.   This was not a case where, in my view, the Crown shifted its stance during the course of the trial;  nor was it a case where the Crown’s particularisation of the offence, or the manner of the presentation of the evidence, led to any unfairness to the accused.

   [8]cf. King v. The Queen (1986) 161 C.L.R. 423.

1. The applicant next submitted that the prosecutor had failed in his duty in that he went beyond presenting the evidence dispassionately “to a position of winning at any cost”.   Again, my reading of the transcript does not bear out that proposition.   Prosecutions which are based on circumstantial evidence almost inevitably promote circumstances in which competing submissions are made on behalf of the Crown and the defence as to the construction which should be placed upon the evidence by the jury.   In this case, it seems to me that, in presenting the evidence, and in making his submissions to the jury about that evidence, the Crown prosecutor did not go beyond the bounds of his duty;  nor did his conduct lead to any unfairness in the trial.   No such contention was made at the trial by the defence counsel, nor was any such suggestion made by the trial judge.   I have myself read the transcript of evidence and the transcript of addresses made by both counsel.   It seems to me that the evidence was adduced fairly, and that the submissions made by each counsel to the jury at the conclusion of evidence were presented appropriately and well.   Again, it must be said, that significant difficulties face a litigant in person in seeking to conduct his own appeal, particularly in a circumstantial case such as this one where the evidence is open to different constructions and counsel must, in the presentation of their respective cases, invite the jury to place a construction on that evidence which favours the conclusion for which they are contending.   The fact that their presentations were “fair” is best reflected by the fact that neither counsel for the applicant, nor the judge, suggested that any unfairness had crept into the trial as a consequence of misconduct by the prosecutor.   Although the applicant has submitted that there were 22 areas of unfairness to be found in the prosecutor’s address, I have been unable to find, in respect of the matters alleged, any indication that the prosecutor had exceeded the bounds of his duty.

1. The next ground taken on behalf of the applicant was that his own counsel’s performance was so deficient in a number of crucial areas that his defence was jeopardised. In support of this ground, the applicant alleged that his counsel had failed to apply to have excluded from the evidence certain of the statements which the applicant had made to the police on the grounds that he should have been “warned”; that his counsel had failed to apply to have the trial postponed or the jury discharged on the grounds of media bias; also on the basis that unfairness had crept into the trial because the Crown case had changed in the manner to which I have already referred; further, on the basis that his counsel had failed to call witnesses which he should have called; that his counsel had failed to take exception where exception should have been taken to the evidence; and on the basis that there had been a failure to put the case on behalf of the applicant in final address. It suffices to say that, in my view, none of these grounds has been made out. The applicant contended that his counsel should have sought to exclude the statement which the applicant had made to the police and which he had signed in the early hours of the morning of 15 February 2000. The application, so it was contended, should have been made pursuant to s.391B of the Crimes Act, which section is a procedural section governing the manner in which applications can be made to exclude evidence “solely by the exercise of a discretion”. It is now contended by the applicant that he was a person who, at the relevant time, was “in custody” within the meaning of s.464(1) of the Crimes Act and should have been warned of his right to silence pursuant to s.464A(3) of the Crimes Act.   In my view, there is nothing in this ground.   At the relevant time, the applicant was not “in custody” within the meaning of the section.   The police, at that stage, were simply seeking to inform themselves of circumstances pertinent to their investigations.   At the relevant time the applicant was neither under arrest nor being questioned or investigated to determine his involvement in the commission of an offence within the meaning of sub-section (1) of s.464.

1. It was next contended by the applicant that his counsel had let him down and subjected him to an unfair trial because, at the outset of the trial, he had failed to make an application for the discharge of the jury following some media publication.   It appears that one jury had already been discharged on account of unfavourable media publication and, following the prosecutor’s opening before the jury in this trial, there was a further newspaper headline about it on the following day which was in a form which his Honour regarded as offensive.   The applicant contended that his counsel should have asked for the jury to again be discharged;  first, because the newspaper headline was inflammatory and, secondly, because it was probable that some members of the jury had already read the newspaper which led to the first jury being discharged.   His Honour raised the matter with counsel on the second day of the trial and outlined various alternatives;  the first being to simply “ignore” the article (or the headline);  secondly to make a point to the jury about it and tell them it had no foundation in anything said in court;  or thirdly, to discharge the jury and start again.   The applicant’s counsel requested the judge to follow the second of these alternatives.   In his view that would be sufficient having regard to the fact that his Honour had already told the jury to be wary about newspaper and television articles in respect of the trial;  and advised them “not to read the newspaper reports or watch television accounts of the trial” because no such report was able to convey accurately the evidence which had been given.   His Honour determined that he would do as invited and warn the jury about the existence of the headline to the article which appeared in the morning newspaper.   His Honour warned the jury to take no account of the article, if they had read it, because it did not represent what had been put to them in the course of the proceedings.

1. In my view, these grounds of the application cannot be made out.   The attitude taken by the applicant’s trial counsel to the publication and to the manner in which the judge should deal with it was perfectly appropriate;  as was the manner in which the judge directed the jury about it.   No miscarriage occurred.   I do not accept the applicant’s submission that his counsel had allowed the matter “to be dealt with in a manner not in my best interests”.   Nor is there anything in the other propositions made in support of this ground of appeal.   Again the applicant contended that his own counsel had permitted the prosecutor to suggest to the jury “different scenarios” in respect of the “burglary”.   For the reasons which I have already given, I cannot accept that defence counsel’s conduct was deficient in this respect;  nor do I accept that defence counsel failed to comply with his duty in dealing with the evidence and the submissions made by the Crown.   On the contrary, it seems to me that his handling of this trial was of the highest order.   Nor in my view is there anything in the applicant’s proposition that his counsel failed to call witnesses who would have been relevant to his case, or in failing to take exceptions to “the many false claims made by the prosecutor” in his address.   Likewise, in my view. there is nothing in the applicant’s submission that his counsel failed to put his case properly in the final address to the jury.   Once again, all I need say is that the nature of these grounds of the application made by the applicant have led me to carefully review the transcript of the proceedings at trial.   That review has led me to the conclusion that the applicant’s trial counsel, who is very experienced in the handling of criminal trials, conducted this case in what seems to me to have been a most competent manner.

1. Finally, it was submitted that the learned trial judge made a number of errors which rendered the trial unfair.   Inter alia, the applicant submitted that the jury should have been discharged by the judge at the outset because of “media induced bias”.   I have already dealt with this matter and I reject it.   Next it was submitted that the judge’s directions to the jury about the “lie” evidencing a consciousness of guilt were faulty in that he failed to tell the jury that the telling of such a lie could be explained by a number of things apart from a realization of guilt.   This indeed was the only ground taken in the notice of application for leave to appeal against conviction.   In my view, the ground is not made out.   His Honour gave full directions to the jury in respect of the use which they could make of the alleged lie which the Crown contended had been told by the applicant;  the first being the admitted falsehood that he had been at Eastland Shopping Centre, and the second being what the Crown contended was a lie – namely that he had been to the Blackburn Lake.   His Honour told the jury that before they could use any so-called “lie” by the accused as probative of his guilt, they had to be satisfied of a number of matters.   He told the jury that the law was “very careful about lies because people lie for all sorts of reasons, not only because they are guilty”.   In addition, his Honour directed the jury as follows:

“We have all had experience of people telling lies to cover one situation when it looks as if they have covered another situation.   So the law is very careful.   The first thing a jury must be satisfied about is that the evidence must reveal a deliberate lie, not an error or untruth arising from a confusion.   In this instance you might think, it is a matter for you, that there is no question about the Eastland statement being a deliberate lie.   That is a matter for you ultimately to determine.   The lie must relate to a material issue, that is, a fact or circumstance connected with the case.   It must also be clearly shown to be a lie by independent evidence.   Now in this case the Eastland lie is shown to be a lie, you might think, by the fact that the accused said it was a lie.   He has admitted it.   You can act on that admission, the letter he wrote to the police where he says ‘Well I lied out of shock and fear’, but a jury can only take such a lie into account if they are also satisfied that it reveals a knowledge of the offence, or some aspect of the offence, and because of a realization of guilt, or a fear of the truth, which it is for them to determine.   In other words, you must be satisfied, and all of these satisfactions must be beyond reasonable doubt, that the lie reveals a knowledge of the offence or some aspect of it, and because of the realization of guilt or a fear of the truth.

Finally, the jury must be warned that there may be reasons for a lie other than a consciousness of guilt, such as panic, or the avoidance of some other consequence extraneous to the offence;  in other words, lying for some other reason.”

His Honour went on to tell the jury that they were able to use what they considered to be “a lie” simply as a matter going to the credit of the accused or to his discredit.   Furthermore, he went on to remind them that the accused’s own explanation in his letter to the police was that he had told the lie about being at the Eastland shopping centre out of shock and fear both from the fact of finding his wife dead and from the fact that he would be wrongly accused of the murder.

1. In my view, these directions to the jury were more than adequate, and probably too favourable to the accused in the sense that the jury were told that they would have to be satisfied beyond reasonable doubt that the lie bore the characteristics which his Honour had put to them[9].   Furthermore, there is no basis for the submission that his Honour failed to tell the jury that there may be reasons for a lie being told other than a consciousness of guilt of the crime charged.   His Honour expressly told the jury that very thing on at least two occasions, and told them what those reasons might be.   Accordingly there is, in my view, no basis for suggesting that his Honour erred in the directions which he gave on this matter.   It was further put by the applicant that the lie told was not in respect of a “material matter”.   In essence, the applicant submitted that the Crown case was that the murder had been committed in the morning and the lie which was alleged to have been told about his movements was in respect of movements which had been made in the afternoon.   These were of course matters which had been canvassed by counsel during the course of addresses and his Honour left it to the jury to decide the materiality of the lie.  The Crown case was that the accused had lied about his movements at a time when it was open to the jury to conclude that he was doing things to cover his tracks in respect of the offence alleged;  including the disposal of clothing and other matters.   It was open to the jury to conclude, but it was clearly left as a matter for them, that the lie was told in respect to a matter material to the commission of the offence.   In this respect it must he recalled that this lie was told early in the piece at a time when the police had no idea as to the time of the murder;  and long before Mrs. Scerri came forward.  

   [9]cf. Edwards v. R., supra, at 210.

1. Accordingly, I am of the view that there is nothing in the submissions made under cover of this ground to support the contention that his Honour misdirected the jury in a manner which created an unfairness in the trial.   Accordingly, for the reasons given, I am of the view that none of the grounds relied upon in support of the application for leave to appeal against the conviction has been made out;  and that, therefore, that application should be dismissed.

Application for leave to appeal against Sentence

1. In substance, the submission made in support of the application for leave to appeal against sentence was that the sentence imposed of 21 years with a minimum term of 16 years is manifestly excessive.   The applicant submitted that the sentence imposed failed to give adequate weight to his previous good character and his Honour’s own finding that the murder was unpremeditated.   It was put by the applicant that, on the material which had been made available to him, perpetrators of premeditated murders “generally” get less than the 21 years which the judge imposed upon him.

1. I am quite unable to accept the applicant’s proposition that this sentence is manifestly excessive.   This was, as his Honour pointed out, a bad killing of a defenceless woman in her own home.   She was attacked from behind and beaten unmercifully to the ground and continued to be beaten while she was on the ground.   Whether a sentence is “manifestly excessive” admits of little argument.   It suffices to say that the sentence imposed by his Honour for this particular murder was well within the range of sentences available to him.   In my view, the application for leave to appeal against the sentence must also be dismissed.

VINCENT, J.A.:

1. I agree that the applications for leave to appeal against conviction and sentence in this case should be refused.  I do so for the reasons advanced by the learned President in his judgment.

ASHLEY, A.J.A.:

1. I had the advantage of reading, in draft, the reasons of Winneke P.  I agree that the applications for leave to appeal against conviction and sentence should be dismissed, essentially for the reasons which his Honour has in detail explained.