R v Farquharson

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 889 of 2007

THE QUEEN
	v
ROBERT DONALD WILLIAM FARQUHARSON

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JUDGES	WARREN CJ, NETTLE and REDLICH JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 and 2 June 2009
DATE OF JUDGMENT	17 December 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 307
JUDGMENT APPEALED FROM	[2007] VSC 469 (Cummins J)

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CRIMINAL LAW – Conviction – Murder – Applicant alleged to have murdered three children, by drowning, by driving car into dam – Evidence – Expert evidence – Medical opinion – Whether opinion of specialist thoracic physician admissible to prove applicant not likely to have suffered cough syncope before driving car off road into dam – Engineering opinion – Whether opinion of expert accident reconstruction engineer admissible to prove car ‘under control’ and subject to ‘three steering movements’ before entry into dam – Whether accident re-enactment evidence and computer simulations admissible to establish likely path of vehicle from road into dam – Whether judge erred in refusing to exclude evidence in exercise of discretion – Directions to jury – Whether permissible to summarise expert evidence by reference to counsel’s arguments – Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Festa v The Queen (2001) 208 CLR 593, applied; R v Andrakakos [2003] VSCA 170, R v VN (2006) 15 VR 113, referred to.

Consciousness of guilt – Post offence conduct – Conversations between applicant and friend after drowning of children – Whether requests that friend not mention parts of pre-incident conversations admissible as evidence of consciousness of guilt - Directions to jury – Failure to direct jury of need to be satisfied of contents of pre-incident conversations – Failure to direct jury of need to be satisfied of those parts of pre-incident conversations applicant sought to conceal – Need to direct jury that, unless prepared to convict in absence of evidence of consciousness of guilt, jury must be satisfied of that evidence beyond reasonable doubt – Need to give jury Edwards direction in respect of denials – R v Ciantar (2006) 16 VR 26, R v Cuenco (2007) 16 VR 118, applied; R v Laz [1998] 1 VR 453, R v Franklin (2001) 3 VR 9, followed; Edwards v The Queen (1992) 173 CLR 653, considered.

Procedure – Crown’s duty of full disclosure and fairness – Failure of Crown to inform applicant that witness for Crown faced pending indictable offences – Whether productive of miscarriage of justice – R v Spiteri (2004) 61 NSWLR 369, applied; Cannon v Tahche (2002) 5 VR 317, Mallard v The Queen (2005) 224 CLR 125, referred to.

Trial – Final address of Crown prosecutor – Impermissibility of posing question as to why witness for Crown would lie – Palmer v The Queen (1998) 193 CLR 1, applied.

Verdict – Whether unsafe and unsatisfactory – Conflicting expert opinions – Whether sufficient evidence to sustain conviction – M v The Queen (1994) 181 CLR 487, applied.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J Rapke QC with Mr D Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr P J Morrissey SC with Mr C Mylonas	Victoria Legal Aid, Geelong

WARREN CJ
NETTLE JA
REDLICH JA:

The applicant, Robert Donald William Farquharson, was convicted in the Supreme Court, at Melbourne of the murder of his three children Jai, Tyler and Bailey Farquharson. He was sentenced to life imprisonment with no minimum term. He now seeks leave to appeal against both his conviction and sentence.

The Facts

On Fathers’ Day 2005 the applicant had the care of his three children, Jai aged 10, Tyler aged 7 and Bailey aged 2. These were children from a relationship with his former partner and wife, Cindy Gambino.

Having spent the day with the children, the applicant drove to the house of friends in Mt Moriac. He arrived at approximately 7.00 pm and visited for about 10 to 15 minutes. He left that property with the children in his car, a ‘Commodore’ sedan, and began to drive along the Princes Highway in the direction of Winchelsea where he was to return the children to the care of Ms Gambino.

In his record of interview, the applicant gave the following account of what occurred next. He said that there was a bit of traffic on the highway, which he put down to it being Fathers’ Day. The children talked amongst themselves. Despite it being a 100kph zone, he drove under 100kph and said he intended to do so as he had his children in the car.

The Princes Highway was a two lane, two way undivided road with sealed shoulders and rumble strips outlining the shoulders. The road was straight and horizontal, and then travelled over an overpass bridge before coming down and sweeping through to the right. In the direction in which the applicant was travelling there was a dam on the right-hand side of the road a short distance beyond the overpass. The car there left the Princes Highway and ran into the dam.

The applicant said that he did not recall running into the dam. He recalled driving over an overpass and that, when he had just come over it, he started coughing. He then ‘really really’ started coughing and recalls nothing further.

He said that he found himself under water. He told the kids not to panic, but as Jai (the eldest child) opened the front passenger door, the car began to fill with water and it nose dived slightly. He reached over and shut Jai’s door. He managed to get out of the vehicle after which it sank further. He claimed that he then attempted to go around to the other side but could not get there due to the water pressure.

Having made it to the shore of the dam, he then approached the Princes Highway with the intention of waving down passing traffic. A car carrying Mr Atkinson and Mr McClelland pulled over, the applicant having been spotted at the side of the road. Mr Atkinson yelled to him ‘what the fuck are you doing mate, are you trying to kill yourself’. The applicant did not answer but repeatedly said, ‘Oh no, fuck what have I done, what’s happened’. He then said ‘I’ve killed the kids. They’ve drowned’. Within a few minutes he then asked ‘can I grab a smoke off you mate’.

Both Mr Atkinson and Mr McClelland had difficulty getting any sense out of the applicant. Later, Mr Atkinson recalled the applicant saying he had put his car into a dam and had either a coughing fit or ‘done’ a wheel bearing. Mr McClelland also said the applicant told them he must have ‘done a wheel bearing’ and then shortly after that he said he ‘must have had a coughing fit and blacked out and just woke up in the water … and [he] couldn’t get the kids out’. He repeatedly told them that he had ‘killed’ his kids and that he had to go home to tell ‘Cindy’ that he had ‘killed them’.

The request to be taken to ‘Cindy’ was a reference to Cindy Gambino, the applicant’s former partner and mother of the children. The applicant and Ms Gambino had known each other since 1990, commenced a romantic relationship in 1993 and were married in August 2000. The relationship came to an end in the late part of 2004 when Ms Gambino asked the applicant to leave the family home. She had told him that she did not want the marriage any longer. Later the applicant was told that Ms Gambino had commenced a new relationship with another man by the name of Stephen Moules.

The applicant was driven by Mr Atkinson and Mr McClelland to Ms Gambino’s property. The applicant there informed her of the incident. Distraught, Ms Gambino immediately rang Mr Moules. She then drove down to the dam with Mr Moules’ son and the applicant in the back seat. Mr Moules drove separately to the dam.

Upon arrival, the applicant’s vehicle was not visible. It was fully submerged in the dam. A number of attempts were made to rescue the children, searching for them in what was described as ‘freezing’ cold water. This included attempts by Mr Moules, Mr McClelland and another person, a Mr Cromer. The applicant did not participate meaningfully in any of those efforts. Within a short time a large number of emergency personnel attended the site including the SES and the Urban Fire Brigade.

After some time, the applicant was taken to the back of an ambulance and assessed. He was then taken to the Geelong Hospital where he arrived at 9.00pm. He was there treated by Dr Bruce Bartley in the emergency department. A physical examination revealed nothing untoward. But as a result of the history given to him by the applicant, Dr Bartley made a provisional diagnosis of cough syncope; meaning that the applicant had lost consciousness as a result of coughing.

The applicant’s vehicle was eventually located and recovered from the dam. The applicant’s three children were found deceased inside. The cause of death in each case was later confirmed as drowning.

Overview of the Crown Case

The Crown case was that the incident was not an accident. Rather, it was the result of a conscious, voluntary and deliberate act by the applicant who wanted to punish his former partner, Ms Gambino, for their marital break-up. He deliberately drove his children into the dam with murderous intent. His intention was to drown his children and then to escape and inform his wife of their deaths. He was determined to punish her by making her suffer a loss she would always remember with the date of Fathers’ Day chosen for this purpose.

The Crown case was predominantly circumstantial, comprised of three strands. These were: (a) medical evidence as to the general rarity and specific unlikelihood of the condition that was consistent with the applicant’s account of cough syncope; (b) engineering and reconstruction evidence relating to the movement of the applicant’s vehicle; and (c) statements made by the applicant to the witness Greg King.

Medical Evidence

There was a deal of evidence about the applicant’s health before the incident. Ms Gambino said the applicant suffered coughs most winters. On 17 August 2005 he suffered a severe coughing fit when speaking to his employer. The next day he saw his doctor and was prescribed medication. A few days later he saw the doctor again citing worsening symptoms of a cough. After almost two weeks absence the applicant returned to work on 28 August 2005. On 1 September 2005 the applicant was found walking along a road, complaining of a coughing fit when driving that he said rendered him unconscious. On 2 September 2005 he suffered another coughing episode when with his employer. Around the same time others noticed his cough.

The defence was that the applicant blacked out at the wheel of the car while it was in motion after he had a coughing fit. The Crown relied upon its medical evidence to exclude that as a reasonable hypothesis. It called three expert medical witnesses. The first was Dr Bruce Bartley, a specialist emergency physician who treated the applicant at Geelong Hospital following the incident and who, based upon the history which the applicant gave at that time, made a provisional working diagnosis of cough syncope. The defence relied on that diagnosis. The second was Dr John King, a consultant neurologist with the Royal Melbourne Hospital and an associate professor of medicine at the University of Melbourne, who gave expert opinion evidence generally as to the ætiology and incidence of cough syncope. That was less favourable to the defence because it suggested that cough syncope was unlikely to occur in patients other than middle-aged men suffering from obstructive airway disease or similar disorders. There were, however, some aspects of Dr King’s evidence which were of advantage to the defence. The third was Dr Thomas Naughton, a specialist thoracic physician and associate professor of medicine in the Department of Medicine at Monash University who, over objection, expressed a conclusory opinion that it was most unlikely that the applicant had suffered from cough syncope.

The defence called another neurologist, Dr Christopher Steinfort, a consultant physician in thoracic and general medicine, and head of thoracic medicine at the Geelong Hospital whose testimony was similar in effect to Dr King’s opinion.

Dr King gave evidence that blackouts were common within his area of practice. He said that cough syncope is an uncommon cause of syncope, characterised by a sudden loss of consciousness after a bout of coughing. In terms of its rarity, Dr King estimated that, in Melbourne, less than two per cent of cases of syncope were due to coughing. Dr King said he had never seen a patient collapse before him, though he had diagnosed a number of patients with cough syncope based on their histories. He said that diagnosis was based solely on a patient’s history, and its accuracy was entirely dependent on the patient or witness. He estimated that in 30 years of medical practice, he would have diagnosed only a very small number of patients with cough syncope and could not recall one who did not have lung disease. He acknowledged that cough syncope had been seen in patients without chronic airways disease. He said that patients usually only suffer from a momentary loss of consciousness, in the order of seconds, but that an episode may last 20 seconds from start to finish.

Professor Naughton gave evidence that cough syncope was a recognised syndrome and a condition with which he was familiar. He described it as involving a very brief loss of consciousness following episodes of intensive coughing. The loss of consciousness was transient, lasting just a couple of seconds. He said it was usually described in middle-aged men who were heavy smokers, usually with underlying heart or lung disease and often with elevated body weight. Dr Naughton testified that it is an ‘extremely uncommon’ condition and that in 25 years of practice, he had never seen it personally. He said that there was an absence of good quality scientific rationale supporting the validity of the condition in the medical literature. Having regard to the history given to him, it was his opinion that it was ‘medically, extremely unlikely’ that the applicant had suffered an episode of cough syncope. The defence challenged the admissibility of Dr Naughton’s opinion.

Dr Steinfort’s evidence was that cough syncope resulted in sudden loss of consciousness following an episode of coughing. He said that it was diagnosed principally on a patient’s history. He estimated that an actual loss of consciousness associated with cough syncope lasted approximately ten seconds. He said that he had previously diagnosed cough syncope in 15 patients. He referred to a database he had kept since 1995 of patients seen in his consulting rooms (which represented half his practice) that included an approximate total of 6,500 patients. Of this total he had diagnosed 32 patients with syncope, and coughing was attributed as the cause in 15 of those patients. Although chronic obstructive airways disease was common in people who had suffered from cough syncope, he said it was not a necessary pre-existing condition. He concluded that cough syncope was ‘an appropriate diagnosis’ of the applicant’s condition. Dr Steinfort stated that he was surprised Dr Naughton had not seen or diagnosed cough syncope, attributing this to the filtering process that he would expect to take place before patients were referred to his specialised practice. He disagreed that it was medically highly unlikely that the applicant had suffered from cough syncope. Dr Steinfort’s opinion was attacked by the Crown on the basis that it was based on a history that included an established lie by the applicant, namely, that he had previously coughed to the point of losing consciousness and that it had been witnessed.

The defence also led medical evidence of the applicant’s condition prior to Fathers’ Day 2005, that was said to have increased the likelihood that the applicant had suffered from cough syncope. This evidence showed that the applicant had been suffering from an upper respiratory tract infection which, on occasions, had caused him to cough severely. The evidence was given by Dr Ian McDonald, who was the applicant’s treating physician. He testified that on 18 August 2005, the applicant consulted him regarding an upper respiratory infection, which was worsening into pharyngitis and sinusitis. On 23 August 2005, the applicant returned with worsened symptoms of a chesty cough. He also complained of sore and aching ribs that Dr McDonald expected were a result of his coughing. The applicant did not state that he had had difficulty with breathing, passing out or feeling dizzy as a result of his coughing. On examination, the applicant’s chest was clear. Dr McDonald prescribed a different set of antibiotics.

Engineering and Reconstruction Evidence

The engineering and reconstruction evidence was led by the Crown for the purpose of showing that the path taken by the vehicle was consistent with the driver exercising control of that vehicle. Evidence was led of three steering inputs after the time at which the applicant claimed to have lost consciousness.

The key Crown engineering witness was Acting Sergeant Glen Urquhart, an accident reconstruction expert with Victoria Police. He attended the dam site on the morning after the incident and made a number of observations. In his later reconstruction of the incident, he relied upon these observations, photographs taken by other police members and plans of the area. His observations also formed the basis for a drive-through experiment and a computer simulation.

Of particular importance were the tyre marks that were used to determine the location and angle of the car when it left the road and the rolling prints in the grass that were used to demonstrate the path of the vehicle.

Acting Sergeant Urquhart testified that the course of the vehicle altered three times after the point at which the applicant claims to have lost consciousness. This was said to reflect three steering inputs. He said the car did not veer to the left according to what would be the natural path of a car if it were being correctly driven but went across the highway to its incorrect side of the road and off the road. This involved a steering input of some 220 degrees. Then it straightened up a little with a small steering input to the left. That was the second input. Finally, as the car approached the dam, the car made a slight deviation to the right to avoid running into the trunk of a tree. That, he said, was the third steering input.

As part of his evidence, Urquhart presented the results of a ‘drive through’ experiment to the jury. In this experiment he drove a car without any steering input down the Princes Highway in the direction of the dam. As the exact speed travelled by the applicant’s car could not be determined from evidence at the scene, this test was conducted at three different speeds. He said that, when driving at 64kph, the car veered so far to the left that he had to steer right to prevent the car running off the road. At both 82kph and 100kph the car maintained a virtual straight line. This provided a basis for his opinion that the movement towards the dam required a steering input to the right by the driver.

Urquhart also presented a simulation using a software program known as ‘PC Crash’. Two simulations were conducted at different speeds, with two variances, one attempting to replicate the path followed by the vehicle as calculated by Urquhart from his observations at the scene and one involving a constant steering input (on the basis that that would be more consistent with an unconscious driver). From this it was calculated that the vehicle required three steering inputs for it to follow the path determined by Urquhart from the scene.

The evidence of Urquhart was challenged by the defence in cross-examination; first, on the basis that he did not conduct a survey of the camber of the road. The consequence, it was said, was that the ‘drive through’ experiment was of no value to the jury. Urquhart strongly disagreed on the basis that knowing the camber would not change the result of the experiment. The proposed evidence of a Mr Jacobs, a mechanic that the defence would call, that the car driven by the applicant may have had a steering bias to the right was put to Urquhart. He considered that at the lower speed, if the steering pulled to the right, with a left veering camber in the road, the car should maintain equilibrium and travel in a straight line. However, at the higher speeds, Urquhart drew a distinction between a drift to the right and movement at a sharp angle off the road to the right. Such movement was relied upon by the defence as inconsistent with the Crown case that there had been a sharp steering input to the right. Urquhart was also questioned as to what was said to be inconsistent evidence as to which of the crime scene markings was used to calculate the movement of the car. Finally, Urquhart conceded that three steering inputs were not the only movements consistent with the path of the vehicle as determined from the evidence at the scene, and that it may have been consistent with a series of smaller movements.

The key defence reconstruction witness was David Axup, a traffic analyst. In his opinion the applicant’s vehicle followed a smooth arc to the dam with at least three steering inputs. In contrast to Urquhart, he testified that there were a number of hypotheses (apart from conscious driving) that might explain such inputs.

Commenting upon the evidence given by Urquhart, Axup opined that a steering input of 220 degrees in a vehicle travelling at 60kph, being the change in angle of the car as calculated by Urquhart, would cause a car to spin out and leave yaw marks on the road surface, in turn resulting in sideways skid marks. Given the absence of such evidence, Axup said he doubted the correctness of Urquhart’s opinion. He calculated instead that the vehicle had taken a curved path, and calculated the angle of departure from the road surface as approximately 12 degrees, which would require a constant input at the steering wheel of 23.5 degrees.

Sergeant Geoffrey Exton was stationed at the Major Collision Investigation Unit at Glen Waverley. Exton’s observations at the scene were of rolling tyre prints leaving the right-hand side of the road when heading towards Winchelsea at an approximate angle of 30 degrees. The tyre prints left the road’s sealed surface and travelled down a slight slope, where the surface then began to level out slightly. The front of the vehicle then would have dropped into a spoon drain. Beyond the spoon drain the grass was longer and had been flattened by the bottom of the car. The tracks continued on into a farm fence. The vehicle had struck two fairly solid upright wooden posts and, as the car went through the fence, it cause the wire to tension and break. The rolling tyre prints continued to a tree on the embankment of the dam, which it appeared had been struck by the vehicle which continued on and then entered the dam.

Sergeant Exton said he expected the vehicle could not follow the path that he had determined, particularly over the rough terrain, without some pressure at the steering wheel. His evidence was said to support the Crown case that the path of the vehicle was consistent with the applicant having conscious control.

Statements of intention made to Greg King and subsequent false denials

Some days after Fathers’ Day 2005, a long time friend of the applicant, Greg King, reported to police that he had had a conversation with the applicant some two to three months before Fathers’ Day, outside the fish and chip shop in Winchelsea (‘the fish and chip shop conversation’), in which the applicant said that he intended to get even ‘big time’ with his former wife, Cindy, and also said ‘I’ll pay her back, I’ll teach her.’ King said he went home and told his wife about the conversation. His wife said she had no recollection of the details of the conversation.

At the trial, it was common ground that there had been a fish and chip shop conversation, in which the applicant said words to the effect that he would pay Cindy back ‘big time’, and also that, as he spoke, he nodded his head towards the fish and chip shop window where Cindy and the children were. But there was a dispute as to what if anything else was said during the conversation.

Part of the difficulty was that King made three different statements to police about the fish and chip conversation. Those statements were not tendered at the trial and we have not been provided with copies. But one is able to glean an understanding of their content from the cross-examination of King. Each of the second and third statements contained a version of the fish and chip shop conversation which was considerably more detailed and more serious than the preceding version. According to King’s evidence at trial, that was due to the fact that the conversation came back to him in stages over time after the death of the applicant’s children. King’s evidence at trial was in accordance with the third and most serious version. This account was contested by the defence, who argued that King’s memory of the details of the conversation was flawed, due to the emotional turmoil of the children’s death.

To understand the Crown and defence allegations, it is necessary to state briefly the timeline of statements made by King. King made his first statement to the police on 9 September 2005. That was a date five days after the incident. He did so after he was observed crying at work, at which point the suggestion was made that he should speak to the police.

In his statement of 9 September 2005, King said that the applicant had complained to him about getting the ‘shit car’ and that ‘Cindy gets to drive around in the good car’. He also stated that the accused said ‘She’s going to pay big time for this. She’s not going to do that and get away with it’. He said something about the kids but King could not remember what it was, other than that he was going to take away the most important thing to her, and that he mentioned something about having a dream and going into a dam.

Three days later, on 12 September 2005, King spoke to the police and added to the statement that, when the applicant had said he was going to take away from Cindy the thing that was most important to her, he had pointed his head towards the children in the shop and went on to mention something about an accident in which he got out and the kids did not.

In response to these statements, investigating police suggested to King that he should speak to the applicant while wearing a hidden tape recorder, with the purpose of obtaining a confession. Thereafter, King had two covertly taped conversations with the applicant. Each was played to the jury. In the first, recorded on 15 September 2005, King put to the applicant that the applicant had said in the fish and chip shop conversation that ‘I’ll pay her back big time’. Without addressing the specifics of the conversation, the applicant urged King not to publish the conversation.

The second taped conversation occurred on 13 October 2005. In that, King put a version of the fish and chip shop conversation to the applicant which included the suggestion that the applicant had said ‘Well funny about dreams the way I have an accident’ and ‘… I have an accident and the kids die’. This was denied by the applicant who urged non-publication. That suggestion, in combination with the statements, comprised what was described between the parties as the ‘dream allegation’.

The Crown contended that the applicant’s denials, and in particular what was said to be the manipulative nature of the applicant’s exhortations not to publish the fish and chip shop conversation, as revealed in the two taped conversations of 15 September 2005 and 13 October 2005, were evidence of consciousness of guilt. The defence contended that these statements were not evidence of consciousness of guilt, that the applicant was merely expressing concern that what King was saying might create a false picture and unfair treatment from law enforcement authorities.

On 4 December 2005 King made a further statement that was more extensive than the ‘dream allegation’. It was provided to the police as a formal statement on 19 December 2005. It was to be the third and final statement provided by King. The contents of this statement were read into evidence:

I was down at the Winchelsea fish and chip shop one Friday night. My kids went into the shop to wait for our order. Robbie was in there with his kids. He saw my kids come in and looked out the window and saw me. He came out. He stood beside my driver’s side window. We were talking away, I don’t remember what about, but he seemed down in the dumps. Then Cindy pulled up. She got out of her car and said, ‘hello Greg and Robbie’. I said, ‘hello Cindy’, Robbie said nothing. I looked at Robbie and said, ‘I have to say hello’. He said, ‘No you don’t’ and got very angry. I said, ‘Come on, Robbie, you have to move on’. He said, ‘Move on how, I’ve got nothing’. Then he said, ‘Nobody does that to me and gets away with it, its all her fault’. I said, ‘What is’? He said, ‘Take that Sports Pack car, I paid $30,000 for, she wanted it and they are fucking driving it. Look what I’m driving, the fucking shit one’. Then he started on about the house and said that she wanted the best of everything and ‘we couldn’t afford it’. ‘Now it looks like she wants to marry that fucking dickhead. There is no way I am going to let him and her and the kids fucking live in my house together and I have to pay for it. I also pay fucking maintenance for the kids, no way’. Then he said, ‘I’m going to pay her back big time’. I asked him how, he then said, ‘I’ll take away the most important thing that means to her’. Then I asked him, ‘What’s that, Robbie?’ He then nodded his head towards the fish and chip shop window where the kids were standing with Cindy and my kids. I then said, ‘What, the kids?’ He said, ‘Yes’. I asked him ‘What would you do, would you take them away or something?’ He then just stared at me in my eyes and said, ‘Kill them’. I said, ‘Bullshit, that’s your own flesh and blood, Robbie’. He said, ‘So I hate them’. I said, ‘You would go to goal’. He said, ‘No, I wont, I will kill myself before it gets to that’. Then I asked him how, he said ‘It would be close by’. I said, ‘What’? He said, ‘Accident involving a dam where I survive and the kids don’t’. He then said it would be on a special day. I asked him what day, he said, ‘Something like father’s day so everybody would remember it when it was father’s day and I was the last one to have them for the last time, not her. Then every Father’s Day she would suffer for the rest of her life’. Then I said, ‘You don’t even dream of that, Robbie’. Nothing was said, my kids started to come out of the shop and then I said to him, ‘You deserve to get caught’. Then we went home, I told my wife about the conversation. We didn’t do anything about it because we thought he was only bullshitting like he did a fair bit.

This version of the fish and chip shop conversation was described as the ‘extreme allegation’, in contradistinction to the ‘dream allegation’. As can be seen, it contained allegations that went well beyond the ‘dream allegation’, including the highly damaging specific assertions that the applicant had stated that he hated his children, intended to kill them and that this would occur in a dam on Fathers’ Day so that everybody would remember it. It was this account that King maintained without substantive alteration from the date of the third and final statement until the trial.

King also gave evidence of other conversations with the applicant. He said that, on one occasion when visiting in 2004, the applicant referred to driving off a cliff. In January or February 2005 he saw the applicant sitting under a tree in his car on the other side of the road. At their next meeting the applicant told King ‘I was thinking about lining a truck up’. This was said by the Crown to demonstrate that the applicant often made threats that were not acted upon, so as to explain King’s failure to take action following the fish and chip shop conversation.

The Crown also led evidence that the applicant was angry and suffering from depression in the period prior to the incident. This was said to create a ‘violent cocktail’ of emotions.

Dam-Side Conduct

In addition to the three strands the Crown relied upon evidence of ‘dam-side conduct’ of the applicant as revealing the applicant’s attitude towards his children and former partner. Such conduct was said to include statements that he had killed his kids and that he wanted to go and tell Cindy what had happened, his refusal to assist with the search for the children and constant requests for cigarettes during that search.

The defence called Gregory Roberts who was a social worker with four years experience specialising in grief and loss counselling. His evidence was adduced to explain the applicant’s post-incident conduct as being a normal response to a traumatic event. He testified that an expression like ‘I’ve just killed my kids’ is common and evidence of a person in surrender mode where the reality of the statement may not quite ‘hit home’ to the person at that time. The applicant’s request to go to Cindy was said by Roberts to be common in the case of a child’s death where one parent is present, irrespective of whether the parent’s relationship is intact. He opined that, after the applicant emerged from the dam, this would have been the next focus for a parent in trauma who had become hyper-focused. Mr Roberts said that not assisting with search attempts was consistent with the applicant being exhausted from being in a high adrenalin state. In relation to the requests for cigarettes, he said it is a physiological fact that the body will crave a stimulant when it is experiencing a traumatic or stressful event.

The Grounds of Appeal

The notice of appeal specified 30 grounds of appeal. By way of submissions received from the applicant prior to the appeal, and in oral argument, the applicant abandoned grounds 3, 4, 9, 16, 26, 28, 29 and paragraph (c) of ground 30.

The applicant therefore relied on 24 grounds, which were grouped primarily by reference to the evidentiary matters concerned, as follows:
Unsafe and Unsatisfactory Grounds
1The verdict was unsafe and unsatisfactory because there was insufficient evidence to sustain a conviction on any count.
2Alternatively, the verdict was unsafe and unsatisfactory because the jury ought not to have been satisfied of the guilt of Mr Farquharson on any count.
…
Grounds concerning disclosure of evidence
5The trial miscarried because of the many failures of timely disclosure by the prosecution, as to:
(a)       the basis of the prosecution case; and
(b)      significant items of evidence; and
(c)       the evidentiary basis for expert opinions offered.
6        Fresh evidence ought be admitted in support of this ground.
Grounds concerning the medical opinion evidence
7The Learned Trial Judge erred in failing to apply the correct test to the admissibility of the opinion evidence of Dr Matthew Naughton
8The Learned Trial Judge erred in admitting the opinion evidence of Dr Matthew Naughton that it was ‘extremely unlikely’ that Mr Farquharson suffered a bout of cough syncope.
…
10The trial miscarried because of the directions given by the Learned Trial Judge concerning:
(a)       the effect of the medical evidence, and
(b)      the summary of evidence and submissions about it
Grounds concerning the evidence about the path of the vehicle
11The trial miscarried as a result of serial and significant failures of timely disclosure by the prosecution concerning the path of the vehicle.
12The Learned Trial Judge erred in failing to apply the correct test to the admissibility of the opinion evidence of Messrs Urquhart and Exton.
13The Learned Trial Judge erred in admitting the opinion evidence of Mr Urquhart on several topics:
(a)Evidence that Mr Farquharson’s vehicle was ‘under control’;
(b)Evidence concerning three steering movements, including one involving a steering-wheel turn of 220 degrees;
(c)Evidence concerning the ‘re-enactment’ evidence behaviour of a dissimilar vehicle
(d)      Evidence of a computer ‘simulation’.
14The Learned Trial Judge erred in admitting the opinion evidence of Sergeant Exton of the inference to be drawn from the course followed by Mr Farquharson’s vehicle
15 Alternatively, the Learned Trial Judge failed to discharge the jury following this evidence.
…
17The Learned Trial Judge failed adequately to summarise the cross-examination of the reconstruction witnesses, or adequately to put the defence case with respect to the reconstruction evidence.
Grounds concerning the evidence of King
18The Learned Trial Judge erred in directing the jury that King’s ‘reply’ to defence criticism was ‘why would I lie?’
19The Learned Trial Judge erred in failing to put fully to the jury the defence criticism of Mr King’s evidence.
20The trial miscarried because of the prosecution’s failure to disclose, prior to verdict, that Mr King had indictable offence charges pending, and that police were prepared to (and ultimately did) provide a letter of support upon his plea and sentence.
21       Fresh evidence should be admitted in support of this ground.
Grounds concerning Consciousness of Guilt
22The Learned Trial Judge erred in allowing the recorded words of Mr Farquharson to be used by the jury as consciousness of guilt.
23The Learned Trial Judge erred in his directions to the jury on consciousness of guilt.
Ground concerning admissibility of telephone intercepts
24The Learned Trial Judge erred in declining to admit evidence relevant to the jury’s consideration of the alleged consciousness of guilt of Mr Farquharson.
Ground concerning dam-side conversation
25Regarding the evidence of the ‘dam-side’ conduct of Mr Farquharson, the Learned Trial Judge erred by failing to give adequate directions to guard against the danger that the jury might misuse this evidence as admissions by conduct.
Grounds concerning adequacy of Directions
Ground concerning the witness Greg Roberts
27The Learned Trial Judge erred in his directions concerning the relevance and weight of the evidence of Mr Roberts         .
Grounds concerning the charge
30The trial miscarried because of numerous errors in the form and conduct of His Honour’s charge:
(a)the charge distorted the issues;
(b)the charge ignored or underplayed matters of importance in the defence case.
Kotzmann ground
31The trial miscarried because of an aggregate of errors.
Grounds 7 and 8: Admissibility of Dr Naughton’s Opinion

Under Grounds 7 and 8 it was contended by the applicant that the trial judge erred in recognising Dr Naughton as an expert in cough syncope and that he erred in admitting Dr Naughton’s conclusory opinion that it was unlikely that the applicant had suffered from cough syncope.

In order to put the objection and the judge’s ruling in context, it is necessary to refer further to the evidence given by each of the four expert medical witnesses.

Dr Bartley’s Evidence

Dr Bartley had specialist qualifications in both surgery and emergency medicine and examined the applicant after he was brought to the emergency department of the Geelong Hospital, following the accident, on the night of 4 September 2005. He said that the applicant told him that he was driving over an overpass near Winchelsea with his three children in the car when he suffered a violent coughing fit and that the next thing he was aware of was sitting in the car with water all around it. When questioned further about his coughing, the applicant stated that he had taken a week off work two weeks previously for a throat infection, and that he had had a dry cough ever since, but that he had never before passed out from a violent coughing fit.

Dr Bartley said that, based on that history and the incident, he made a working or provisional diagnosis that the applicant had suffered cough syncope, which is to say that the applicant had coughed to the point of passing out. He explained that a working or provisional diagnosis is one based on the information given by the patient which is either later confirmed or refuted over a period of observation as information comes to light.

Asked specifically about cough syncope, Dr Bartley said that he had never before made a provisional diagnosis of cough syncope or seen another patient who reported having that condition and that, after forming his provisional diagnosis of the applicant, he had never seen the applicant again. The applicant’s condition was not acute and so he was moved out of the emergency department and into observation over night, where other medical staff were responsible for his care.

When cross-examined by defence counsel, Dr Bartley said that his provisional diagnosis was necessarily uncertain and based solely on the patient’s history and, in re-examination, he said that cough syncope was rare and something of which he knew only because he had read about it.

Dr King’s Evidence

Dr King gave expert evidence that syncope is a loss of consciousness due to a failure of circulation of blood to the brain; that there are many different causes of syncope; and that cough syncope is an uncommon species of syncope, characterised by a sudden loss of consciousness after a bout of coughing which may consist of multiple coughs or a single cough after which the patient suddenly loses consciousness.

Dr King said that there was a paper from the Mayo Clinic in the United States which stated that cough syncope makes up about two per cent of cases of syncope that were investigated there, but that the Mayo Clinic was not really representative of normal general practice incidents because patients with rare and unusual diseases are referred there from all over the world (and thus the Mayo Clinic tends to see more uncommon diseases than are seen in general medical practice). As was earlier noted, Dr King considered that there may be less than two per cent of cases of syncope in Melbourne that are due to cough syncope and he said that he had never seen a case of cough syncope in front of him, even among individuals with chronic obstructive airway disease. The only case of cough syncope which Dr King had ever seen was on a teaching video.

Asked about the diagnostic features of cough syncope, Dr King said that the critical factor is the onset with coughing and evidence of that may be provided by a witness, such as a spouse, or it may be elaborated by the individual who suffers the cough syncope; for example, the patient may recall that before losing consciousness he had a number of coughs and then blacked out. The diagnosis is, therefore, almost inevitably based on history occurring in an individual, often with chronic lung disease, and chronic lung disease tends to occur in males who are smokers who are overweight. As we have said, Dr King could recall only six patients over the last 30 years who were clear cases of coughing followed by blackouts and he could not recall one of them who did not also have lung disease.

Dr King said that the loss of consciousness is usually a matter of seconds, perhaps five, ten, 20 seconds, and that, in contradistinction to patients who suffer from epilepsy, patients who suffer from cough syncope usually recover very quickly and are rapidly oriented as to where they are and they can recall what had happened immediately beforehand. Dr King added that, although the condition was rare, it was a well defined entity: a situation in which the patient suffers one, two, three, four, five coughs, often violent coughs, and then drops into unconsciousness was very characteristic of the condition.

In cross-examination, Dr King agreed that a patient might suffer a pre-syncopal episode, in which a paroxysm of coughing leads to the patient feeling very unwell, light headed, dizzy, and will cause the patient to sit down and then try to control the cough. Such a pre-syncopal episode can involve narrowing of the person’s vision and a feeling of dizziness. Blackout can occur suddenly without warning and, after an episode of cough syncope, there would also be a loss of consciousness which may be a matter of a few seconds. Dr King also agreed that it was quite reasonable to make a provisional diagnosis of cough syncope, as Dr Bartley had done, based on a history of a paroxysm of coughing followed by a transient loss of consciousness.

Dr King accepted that, although cough syncope tends to be confined to middle-aged men who are smokers and overweight, it could occur in a male who is a moderate smoker and thick set who is suffering from an acute respiratory tract illness associated with some quite severe coughing paroxysms.

Dr King further agreed that he had given evidence at the committal hearing that, after a loss of consciousness, if there are convulsive movements, they could involve grabbing the steering wheel but not in a purposeful manner; meaning that it would not have been a purposeful grabbing of the steering wheel, but rather possibly falling on the steering wheel and making some twitching movements; it was not beyond the bounds of possibility that a person who suffered cough syncope while driving a car could have maintained his grip on the steering wheel or moved the steering wheel and that the car could have gone anywhere.

Dr Naughton’s Evidence

Dr Naughton was head of the General Respiratory and Sleep Medicine Service in the Department of Allergy and Respiratory Medicine at the Alfred Hospital. He held a doctoral degree in medicine from the University of Melbourne and in the past had held positions as a Clinical Research Fellow in the Department of Respiratory Medicine in the Faculty of Medicine at the University of Toronto and Acting Director of the Intensive Care Unit at Repatriation General Hospital, Heidelberg. He had published more than 50 manuscripts in the field of his specialisation and reviewed and otherwise been involved in a great many others. He said that he had been provided with a copy of the police summary of the case and several witness statements and that, in order to prepare himself to give opinion evidence, he had consulted with colleagues about the matters on which he was to give evidence and had regard to his own expertise and training in the field of respiratory illnesses and diseases.

Dr Naughton opined that there were two schools of thought in the literature as to the causative mechanism of cough syncope. One was pressure in the chest associated with coughing, which was thought to impair blood returning to the heart and thereby deprive the heart of blood, resulting in a transient reduction in forward cardiac output. The other was impairment of venous drainage from the brain to the thorax with resultant back pressure which interferes with the circulation of blood through the brain.

Dr Naughton added, however, that he had trouble ‘getting [his] head around this condition [of cough syncope] because it’s so nebulous’. He said that he had spent a fair amount of his time reading scientific articles and literature trying to verify the truth and the substance behind various conditions and that he had found there was an absence of good quality scientific rationale to back up the validity of cough syncope. He said it was ‘extremely uncommon’, that he had never seen it personally and that it was ‘an extremely rare condition’. Nor had he ever seen a case of cough syncope in the modern medical literature in which the person suffering had normal heart, lung and neurological condition.

Dr Naughton then had put to him, as a hypothetical problem, a male driver aged 37 who was moderately overweight and smoked a packet of cigarettes every three days. He was asked to assume that the subject was generally of robust health but had been suffering for about three weeks with a respiratory tract infection which commenced as an upper tract infection and then developed lower down into a lower infection which was being treated with antibiotics. An ECG examination detected no abnormality in heart function. The subject had taken fluids within a period of about two hours prior to the incident and the incident occurred while he was seated driving. After the incident, the subject was generally coherent and had managed to extract himself from cold water in which he had been immersed. Asked how likely it was that the subject would have suffered an episode of cough syncope while driving the car, Dr Naughton replied that in his opinion it was ‘extremely unlikely’. When asked what it was that led him to form that opinion, he answered:

From the description provided it appears that this particular gentleman had a reasonably good cardiac and pulmonary health. He was – didn’t appear to be disabled by breathlessness. He hadn’t sought, apart from the respiratory tract infection, I don’t believe he was on other medications for heart or lungs, nor had he had any testing for heart or lungs previously. The fact that it occurred, the fact that there had been some liquid consumed within two hours meant that he’s – and his blood pressure was, I think you mentioned - - - 140? --- 140. Indicates that his volume status was satisfactory. In other words he was not dehydrated, which a dehydrated person would be more likely to be susceptible to changes in their intrathoracic pressure if they were to cough…The fact that there was no coughing after the event when he was exposed to cold air outside with cold wet clothing as opposed to in a car when the temperature possibly would have been warmed [sic] than it would be outside in the open with wet clothing, the concept of being cold can often trigger coughing, so a warmer environment would steer someone away from coughing. The fact that he was seated is – often cough syncope is more likely to occur if someone is fully upright because of the – a lot of our blood volume is in our abdomen and in our lower limbs and if someone is seated that is less likely to be a contributing factor. So, I suppose my judgment is that the individual did not have any established significant cardiac or pulmonary disease. Yes he did have a – what the medical profession and myself would describe as a garden variety respiratory tract infection, which are commonplace, happening every day in society, but these people aren’t having cough syncope on a day to day basis. We just don’t see it … I think the single episode of cough syncope in an environment where it’s relatively warm and was not replicated thereafter I think is highly unusual, and I mean I just think the whole circumstance is an unusual environment for cough syncope to occur.

Asked whether it would affect his opinion if told that the subject had been observed two days before the incident suffering from a severe coughing fit while standing, which was of such intensity that it caused the subject to become red in the face and prompt another person present to urge the subject to sit down, Dr Naughton answered:

it would affect my opinion because the witnessed episode of severe coughing did not elicit syncope….
It favours my opinion as I think it is extremely unlikely that cough syncope occurred.

Asked whether a person who suffers cough syncope gets any warning that it is going to occur, he answered:

The literature does describe, and certainly I’ve had patients who have what’s called a pre-syncopal episode. That is where people do feel a bit light headed. Patients sometimes describe seeing stars in front of their eyes. It’s usually a transient phenomenon and subsides once the coughing stops. But usually there is no loss of consciousness.

Asked what the literature said about the period of time that a person would remain unconscious following a cough syncope, Dr Naughton answered:

The literature suggests seconds, and I appreciate that’s a very loose term. But as far as I’m aware there’s no objective number of seconds. We know from – slightly digressing – but we now know that if the heart were to stop[,] loss of consciousness would normally occur somewhere between six and 12 or 13 seconds. That’s usually the range of time. So our bodies normally have enough blood and oxygen circulating in our system to allow our brain still to function for about five or six seconds in the absence of our heart beating. In fact the converse sometimes happens with coughing that coughing, in someone whose heart stops[,] coughing has been shown to maintain blood pressure and consciousness …
How rapidly would you expect a person to recover from a period of unconsciousness – I mean - - - ?--- Usually within a couple of seconds.
What would their state be afterwards, would there be any - - - ? --- They may be a little bit confused but that would usually be a couple of seconds. One of the reports that I read described – and these are sort of papers from 30/40 years ago before detailed monitoring, but they would described [sic] people becoming flaccid during the cough syncope, so during the syncopal episode, loss of consciousness, and the muscle tone would just deteriorate and they would fall to the ground, but usually that’s associated with cessation of coughing, and when you stop coughing everything sort of returns to normal. So it’s the speed of recovery which is usually within a couple of seconds, in the descriptions I've read.
In that period of unconsciousness would the person be capable of any purposeful movement? - - - Well if they’re unconscious they wouldn’t.
You said that the diagnosis of cough syncope, or indeed even a provisional diagnosis of cough syncope is done on history? - - - Correct.
What to do you mean by that? - - - Well there is no definitive test for cough syncope that is in the medical literature. We’re dealing with an extremely rare condition for which there is no test. Now my personal opinion is that, you know, you could argue that inducing coughing might predispose after the event, that you might be able to trigger, through intensive coughing, a loss of consciousness, but it’s not in the text books, it’s not an established test by any means. So there is no definitive test that confirms or refutes cough syncope apart from a classic description.
So if the diagnosis or the provisional diagnosis is dependent upon history, on what is the accuracy of the diagnosis then solely dependent? - - - A hundred per cent.
On what? - - - On the history of – provided by the patient.
… how does one test the accuracy, the diagnosis then? - - - Well it’s impossible to test, it really relies on the individual providing an accurate history of what went on.

In cross-examination, however, Dr Naughton agreed that he had never seen an episode of cough syncope and had never diagnosed an episode of cough syncope in any of his patients. Nor had any of his colleagues to whom he had spoken about the subject. He had never published an article on cough syncope or any book which mentioned the subject and he had never had a patient give a history which he considered to be indicative of cough syncope.

He agreed further that, after he had made a statement in May 2007, in which he opined that it was ‘extremely unlikely’ that the applicant had suffered an episode of cough syncope, he was cross-examined on the voir dire as to his expertise and had stated at that time that he could not agree that cough syncope is typically diagnosed by reference to history, because he was not aware of someone who had had a clear cut case of cough syncope and he would like to see it happen. He agreed that, at that time, he had been unaware from the literature as to whether or not taking a history was the appropriate way to diagnose cough syncope; that he could not comment on how quickly people recover consciousness from cough syncope, or how long a person might typically remain unconscious after an episode of cough syncope; that he had been unaware of the degree of impairment of consciousness such persons may suffer when they wake up, or how long they might remain impaired; and that each of those matters lay outside his area of expertise. The voir dire was on 16 August 2007, only three weeks before the trial.

He also accepted that he was not an expert in cough syncope. He said, however, that he was educated about it; that he did take a history of it when it was presented to him; that it was ‘certainly something’ that he was aware of in patients who had chronic cough or episodes of cough, and about which he did ask questions as part of his job; and that he did seek to identify whether people were having syncopal episodes with coughing. He said that he was unfamiliar with the clinical unfolding of an episode of cough syncope, because he had never seen it, but that he read the literature and looked for descriptions from others.

He agreed that, at the time of the voir dire, the only literature which he had read on the subject of cough syncope was a general reference textbook for practitioners and medical students – ‘The Textbook of Respiratory Medicine’ edited by John F Murray – which covered a number of topics including cough syncope, and one article, the name of which he could not recall but which he ‘broadly knew’ was associated with the American Thoracic Society. He also agreed that since the voir dire, he had been provided with a list of articles relied upon by the defence and that he had done his best to find them but that he could not locate all of them.

The Judge’s Ruling

In ruling against the applicant’s objection to the admission of Dr Naughton’s opinion, the judge said this:

In this matter, Mr Morrissey helpfully and responsibly has raised a number of issues for pre-empanelment determination. I will state my conclusions on them as they involve a substantial amount of evidentiary material and reference to authorities. I will not give my reasons now, but shall at some convenient time during the trial[1] as we are about to empanel and I have got another case to deal with in the next five minutes.
In relation to admissibility of expert evidence, that which to juries I always call specialist evidence, I consider that the evidence of Associate Professor Naughton is relevant and admissible. The evidence is essentially contained in his statement of 7 May 2007 attached to the Notice of Additional Witnesses of 8 May 2007 and extrapolated on a Basha inquiry before the Court.
Associate Professor Naughton is a highly qualified physician and head of the general respiratory and sleep medicine service at the Alfred Hospital. He deposes that in his specialist opinion it is very unlikely that the accused medically suffered from an episode of cough syncope in the predicated circumstances. It will of course be necessary with this witness, as with all specialist witnesses, to give the jury directions as to the proper use and limitation of specialist evidence. Bearing that in mind I consider that the doctor is well qualified to express the opinion he has deposed to. He was cross-examined very helpfully on the voir dire by Mr Morrissey but that did not to me elicit anything which detracted from his qualifications to express the opinion he expresses. His opinion does not need to be predicated upon statistics in a naked sense or upon measurement in an overt sense. It can be predicated upon vast reading and knowledge, and accordingly I consider that his evidence is admissible.

[1]In fact, the judge never did give any reasons in support of his conclusion other than those stated.

Counsel for the applicant contended that the judge erred in determining the admissibility of Dr Naughton’s evidence, by failing to apply the tests of admissibility adumbrated in Makita (Australia)Pty Ltd v Sprowles.[2] He submitted that, if the correct tests had been applied, it would have been plain that the opinion was inadmissible. Counsel argued that because of Dr Naughton’s lack of reading in the area, his ignorance (at the time of the voir dire) of whether cough syncope is to be diagnosed on the basis of a patient’s history, and his ignorance of the basic features of a bout of cough syncope and how to distinguish it from other relevant conditions, Dr Naughton was singularly unqualified to offer expert opinion on the likelihood of the hypothetical subject having suffered a cough syncope in the conditions propounded.
[2](2001) 52 NSWLR 705, [85]; R v Bjordal (2005) 93 SASR 237; Heydon, Cross on Evidence, [29045].

The Makita Tests

Taking counsel’s points in turn, we start with the seven tests adumbrated in Makita for the admissibility of expert opinion evidence. The first is that there must be a field of specialised knowledge or organised branch of knowledge in which the witness is an expert.[3] An organised branch of knowledge is normally one in which those trained or experienced share generally accepted principles and techniques, and it must so far partake of the nature of a science as to require a course of previous habit, or study, in order to the attainment of knowledge of it.[4] Plainly, medicine is a field of specialised knowledge within which there are organised branches wherein those trained or experienced share generally accepted principles.
[3]Clark v Ryan (1960) 103 CLR 486, 501–2, 508.
[4]Ibid 491 (Dixon CJ).

The second is that there must be an identified aspect of that field of specialised knowledge in which the witness demonstrates that, by reason of specific training, study or experience, the witness has become an expert. The nature and extent of studies required, however, depend on the science in question. It is important to keep in mind that it is not only the general nature, but also the precise character of the question upon which expert evidence is sought to be given which is determinative of whether the putative expert’s qualifications are sufficient.[5] Satisfaction of the second test is thus a question of fact and degree. For example, it has been held that it is not necessary for a general practitioner to have specialised in studies concerned with the rate at which alcohol metabolizes in order to give evidence of that rate based on analysis tables.[6] On the other hand, an emergency-room physician and a surgeon who treated an accused for knife wounds following the death of his wife were held not to be competent to give expert opinion evidence as to whether the wounds were self-inflicted.[7] In the former case, it was considered that the rate at which alcohol metabolizes was a matter within the ordinary knowledge of a general practitioner and, therefore, something on which he was entitled to refresh his memory from a publication of the British Medical Association which provided the current knowledge on the subject. In the latter case, the forensic analysis of knife wounds (in order to determine the probability of self-infliction) was found to be a specialised field of knowledge within medicine in which neither the physician nor the surgeon was able to demonstrate that he was qualified by study or experience.
[5]Ajami v Comptroller of Customs [1954] 1 WLR 1405, 1408 (PC); Murphy v The Queen (1989) 167 CLR 94, 120.
[6]R v Somers [1963] 3 All ER CCA 808, 810 WLR 1306, 1310 (CCA); Reg v Richards (Stanley) [1975] 1 WLR 131.
[7]R v Anderson (2000) 1 VR 1, 24 [58].

As appears to us from the evidence earlier set out, cough syncope, although rare, is one of a number of neurological conditions within the ordinary knowledge of physicians, or at least something which it may be supposed is within the ordinary knowledge of a specialist thoracic physician. The fact that it is dealt with in a general student and practitioner text book like ‘The Textbook of Respiratory Medicine’, and was apparently well known to an emergency medicine specialist like Dr Bartley, tends to make the point. The evidence was that it is something about which doctors are taught or read and are expected to know, even if most of them never get to deal with a patient who is perceived to suffer from it. If follows, we think, that it was not essential for Dr Naughton to have specialised in the study of cough syncope as such in order to express an opinion concerning its occurrence and ætiology.

So to say is not to minimise the significance of Dr Naughton’s confessed lack of study of the subject. Given his admission on the voir dire that his reading on cough syncope was confined to ‘The Textbook of Respiratory Medicine’ and the one journal article of which he could not remember the name, it was open to the jury to conclude that his opinion as to the likelihood of an attack of cough syncope may have been no better informed than that of a well read general practitioner. But that limitation goes to the weight of Dr Naughton’s evidence, not its admissibility.

In assessing its weight, it was also necessary to bear in mind that Dr Naughton had great experience and profound learning in the physiology of the organs most affected by syncope. Consequently, assuming that the mechanism of cough syncope is one or other of the two processes suggested in the literature, and there was general agreement among the experts on both sides that it is, Dr Naughton’s specialist knowledge of the physiology of the organs most closely affected by cough syncope meant that he was well disposed to opine on the likelihood of a subject’s heart and brain having functioned, in specified conditions, in the fashion which it is thought is productive or indicative of cough syncope.

The third and fourth requirements adumbrated in Makita are that the expert must identify the facts or assumptions on which his or her opinion is based and explain how the field in which he or she is expert applies to those facts or assumptions so as to produce the opinion.[8] In this case, it appears to us that Dr Naughton did that. As has been observed, he explained that there are two schools of thought as to the causative mechanism of cough syncope, namely: pressure in the chest associated with coughing that restricts the flow of blood returning to the heart, with a resultant transient reduction in forward cardiac output; and impairment of venous drainage from the brain to the thorax, with resultant back pressure and consequent interference with the circulation of blood through the brain. He also explained that, according to the literature and the enquiries which he had made of his colleagues, cough syncope is a particularly rare disorder which is by and large confined to middle-aged men suffering from chronic obstructive airway disease or similar disorders. The assumed facts on which his opinion were based were identified by the prosecutor in the passage of Dr Naughton’s evidence in chief which we have set out in paragraph [68] above. And after that, Dr Naughton explained in terms of the thoracic physiology in which he is expert, why he supposed that the conditions to which the subject was assumed to have been exposed on the night of the incident were contra-indicative of organic dysfunction of the kind which is generally accepted to be productive or symptomatic of cough syncope.
[8]Ramsay v Watson (1961) 108 CLR 642, 645.

Once again, we do not overlook Dr Naughton’s lack of reading in the area of cough syncope. It is significant because, although there was no doubt about his expertise in thoracic physiology, and hence his ability to comment on the likely reaction of thoracic organs to given physical conditions, it is at least conceivable that greater reading on the specific subject of cough syncope might have alerted him to clinical observations or other phenomena affecting the correlation between cough syncope and the organic dysfunction to which or with which it is customarily attributed or associated. Once again, however, that is a criticism which goes to weight, as opposed to admissibility and, if it had any substance, it was capable of being dealt with in cross-examination.

The fifth test is that the facts or assumptions on which the opinion is based be proved.[9] There is no difficulty with that in this case as they were not in issue. The assumptions which the prosecutor asked Dr Naughton to make were all based on the applicant’s record of interview and the evidence of other witnesses.
[9]Paric v John Holland (Constructions) Pty Ltd (1985) 62 ALR 85, 87–8; R v Ping (2005) 159 A Crim R 90, [43]; Heydon, Cross on Evidence, [29070].

The sixth and seventh tests, which may conveniently be dealt with together, are that the facts or assumptions on which the opinion is based must form a proper foundation for it, and the scientific or other intellectual basis for the opinion must be demonstrated. As is explained in Cross on Evidence,[10] that means that:

the expert’s evidence must explain how the field of specialised knowledge in which the witness is expert by reason of training, study or experience, and on which the opinion is wholly or substantially based, applies to the facts assumed so as to produce the opinion propounded.

[10]Ibid [29075].

In this case, that effectively takes one back to the third test, of the expert demonstrating how the field in which he or she is expert applies to the facts assumed so as to produce the opinion proffered. For the reasons already given, we consider that that test was complied with.

Lack of Reading On Cough Syncope

In substance, we have dealt already with the criticism of Dr Naughton’s lack of reading in the area of cough syncope. For the reasons given, we consider that Dr Naughton was competent to state the generally accepted theories of the physiological mechanism of cough syncope and, because of his specialist knowledge of thoracic medicine, to express an opinion as to whether, if a hypothetical subject were exposed to stated conditions, the subject would likely have suffered from the sorts of organic dysfunction which are associated with cough syncope. As we have also observed, it may be that Dr Naughton’s lack of reading in the specific area of cough syncope, threw doubt on the integrity of his opinion. But, as we have said, we regard that as a matter going to weight.

Knowledge of Means of Diagnosis

We turn to the criticism that, at the time of the voir dire, Dr Naughton was unaware from the literature whether or not taking a history was the appropriate way to diagnose cough syncope. We agree it is surprising that he was ignorant of that fact. It is demonstrative of Dr Naughton’s lack of reading on cough syncope at the time of the voir dire. To that extent, it affects the weight of his evidence, as has been explained. But, in our view, it did not affect its admissibility. Whether or not Dr Naughton knew at the time of the voir dire that the only way in which to diagnose cough syncope was by taking a history, there is no doubt that he was competent to express an opinion as to whether, in given conditions, thoracic organs would react in a fashion which was consistent with the generally accepted mechanisms of cough syncope.

Furthermore, the effect upon Dr Naughton’s credibility may well have been limited. After all, to say that the only way in which to diagnose cough syncope is by taking a history is to assume that there has never been a patient who has suffered an attack of cough syncope in the presence of a diagnostician. It does not imply that the physiological considerations to which Dr Naughton referred are not relevant to the probability of the disorder having occurred. It is true that Dr King said in his evidence there was nothing in the practice of his specialty (scil neurology) which could be tested or measured to verify a diagnosis of cough syncope. As he put it, the diagnostician is solely dependent upon the history provided by the patient and, if available, other witnesses. But Dr King did not suggest that it would be impossible to diagnose cough syncope on the basis of the diagnostician viewing the attack as it occurred, or suggest that, where the diagnostician has not seen the attack occur, the physiological considerations to which Dr Naughton referred would not be a relevant consideration for the purposes of the diagnosis. In effect, the point really rises no higher than that, whereas in the literature it is accepted that it is permissible to diagnose cough syncope on the basis of history alone, and at the time of the voir dire Dr Naughton was ignorant of that consensus, Dr Naughton was of the view that he would like to see physical evidence of an attack before committing himself to a diagnosis of cough syncope. To that extent, Dr Naughton may have been out of step with the majority of the profession, or at least so much of it as are generally concerned with the diagnosis of cough syncope. But that does not necessarily impugn Dr McNaughton’s expertise or point of view. A witness may be an expert and his or her opinion will be admissible even though not accepted by others, so long as is it not scientifically established to be false.[11]
[11]Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, 306; R v Robb (1991) 93 Cr App R 161, 165; Heydon, Cross on Evidence [29055].

Ignorance of distinction between features of cough syncope and other disorders

The criticism that Dr Naughton was ignorant of the basic features of cough syncope is in our view misplaced. It is true that Dr Naughton did not know the period of time for which a person who has suffered a cough syncope is likely to remain unconscious or how that compares with the period of unconsciousness which results from an epileptic fit. As he said on the voir dire, those matters were outside his area of expertise. But that does not alter the fact that, as a specialist thoracic physician, he was an expert in cough paroxysms and able to venture an opinion as to whether such a paroxysm would likely result in a loss of consciousness. Given that by definition cough syncope is a loss of consciousness the result of cough paroxysm, his opinion was relevant and admissible.

Once again, his ignorance of some relevant effects of cough syncope, in particular the period of unconsciousness which it is likely to produce, may be thought to reflect upon the reliability of his ultimate opinion that a person of a particular state of health, if subjected to specified conditions, would be most unlikely to suffer cough syncope. But at the risk of repetition, that goes to weight, not admissibility. The basis of his opinion, at least as finally expressed in evidence (if not at the time of the voir dire), was that the specified conditions would be unlikely to result in the kinds of organic dysfunction which are generally accepted as causative or emblematic of cough syncope.

Change in Basis of Opinion

It is also necessary to say something of the improvement in Dr Naughton’s evidence between the time of the voir dire and the time of giving evidence at trial. As has been seen, at the time of the voir dire, Dr Naughton’s reading on the subject of cough syncope was at best rudimentary. By the time of the trial, he had read considerably more and, as a consequence, was more conversant with what had been written about the diagnosis of it on the basis of history and its incidence among patients other than those suffering from obstructive airway disease and similar maladies. Whereas Dr Naughton’s opinion at the time of the voir dire was, on one view, no more than that because cough syncope is an extremely rare phenomenon, it was highly unlikely that the applicant had suffered cough syncope on the night of the incident, by the time of trial his opinion had been improved to a logically defensible thesis based upon his expert knowledge of thoracic physiology. At trial he opined as to the improbability in specified conditions of a subject of a particular state of health suffering such organic dysfunction as to cause or be consistent with the generally recognised mechanisms of cough syncope.

Evidently, the fact of that improvement or change of basis of opinion provided fertile ground for attack on Dr Naughton’s credibility, and defence counsel exploited it extensively in the course of cross-examination. Defence counsel put to Dr Naughton, in effect, that to begin with he had jumped to conclusions which were really nothing more than an ipse dixit based upon the rarity of cough syncope, and that the inherent weaknesses in his opinion having been exposed at the voir dire, he had then gone away and read up on the literature against a background of having committed himself to an opinion from which he was unwilling to depart.

Needless to say, all of that was capable of bearing significantly on Dr Naughton’s credibility, and may well have done so. But contrary to the submissions of counsel on behalf of the applicant, we do not accept that it went to the admissibility of the opinion. For, although the rules of admissibility of expert opinion evidence require the expert to demonstrate the facts or assumptions and reasoning process which are advanced in support of an expert opinion, they do not require the expert to identify the basis on which his or her opinion was initially formed. The expert is not to be confined to defending the opinion on the basis that it was initially formed. If there is a difference, it goes to weight and, depending upon the circumstances, could result in exclusion in the exercise of discretion. But it does not affect admissibility of the opinion.[12]
[12]Heydon, Cross on Evidence, [29045], Australian Securities and Investments Commission v Rich (2005) 218 ALR 764, [91]–[136].

Form of Dr Naughton’s Opinion

Finally, with respect to Dr Naughton’s evidence, counsel for the applicant submitted that, if Dr Naughton were entitled to express an opinion concerning cough syncope, it should have been confined to a statement that cough syncope is a rare condition occurring most often in middle-aged men with obstructive airway disease and that, if a given individual of a specified state of health were subjected to identified physical conditions, it would be ‘unusual’ for the individual to suffer an episode of cough syncope. More particularly, counsel submitted, Dr Naughton should not have been permitted to express a conclusory opinion that it was ‘extremely unlikely’ that the individual would suffer an episode of cough syncope, because so to conclude would be to transgress upon a matter properly left to the jury; involve unstated assumptions as to disputed facts; function as a comment on the truth of the applicant’s account of what occurred; and apply an uncertain standard of ‘extremely unlikely’ which was impressionistic and which blurred the line between legal and medical standards.

None of that appears to us to go to the admissibility of Dr Naughton’s opinion. Subject to exclusion in the exercise of discretion, provided Dr Naughton satisfied the Makita tests, his opinion was admissible in the form in which he chose to express it. If his considered opinion was that an episode of cough syncope in the circumstances postulated was ‘extremely unlikely’, and he was able to support that opinion in accordance with the Makita tests by reference to the assumed facts on which it was based and to reasoning upon an area of medicine in which he was expert, it was not a valid objection to his conclusion that it was capable of being re-expressed in a fashion that was less damaging to the applicant. As an expert, Dr Naughton was entitled to express his opinion, not just the considerations which he regarded as relevant to its formation.

Nor did it transgress upon matters properly to be left to the jury for Dr Naughton to express an opinion in the form that a hypothetical individual of the same state of health as the applicant, if subjected to conditions to which it was known that the applicant was subjected on the night of the incident, would have been most unlikely to suffer an episode of cough syncope. For, whatever be the current status of the ultimate issue rule,[13] the issue for the jury in this case was whether the applicant blacked out before driving his car into the dam, not the probability that a person of his state of health in similar circumstances would suffer from an episode of cough syncope (although of course the latter is plainly relevant to the former).[14]
[13]Murphy v The Queen (1989) 167 CLR 94, 110–111.
[14]Cf Director of Public Prosecutions v A and BC Chewing Gum Ltd [1968] 1 QB 159, 164.

Additionally, as is observed in Cross on Evidence,[15] there is now a greater willingness on the part of courts, born of the necessity to rely upon expert medical opinion evidence on matters in which lay persons have no learning or experience, to admit expert opinion as to the ultimate issue. It is a daily occurrence when one is concerned with questions of fitness to stand trial and mental disability and other medical conditions on which lay persons are unable or ill-equipped to conjecture. In our opinion, that was so here, where what was in issue was a medical condition which even among those skilled in the area was regarded as rare and about which there was reasoned debate as to incidence and causation.
[15]Heydon, Cross on Evidence, [29015].

We allow that it would have been preferable if Dr Naughton had been confined to an opinion expressed in terms of a hypothetical subject of similar state of health to the applicant and subjected to the same conditions as the applicant on the night of the accident. To have done so would have assisted the jury in observing the direction, which was given to them, that they were not bound by any of the experts’ opinions. If there is to be another trial we suggest that the evidence be dealt with in that fashion, as indeed by and large it was at this trial, as opposed to the statement of opinion which was tested on the voir dire. For present purposes, however, it is enough to observe that we do not consider that the opinion was inadmissible in the way in which it was expressed. Nor do we consider that the judge is shown to have erred in refusing to exclude the opinion in the exercise of the Christie discretion. The opinion of Dr Naughton had a probative value. It had no potential unfair prejudicial effect as the term is explained by Gleeson CJ in Festa v The Queen.[16] Despite the criticisms upon Dr Naughton’s credibility, they did not require his opinion to be excluded in the exercise of discretion.
[16](2001) 208 CLR 593, [22]. See also R v Swaffield (1998) 192 CLR 159, [64]; R v Papakosmas (1999) 196 CLR 297, [91]–[97] (McHugh J).

Mr Morrissey called in aid two particular matters to defeat the normal exclusionary principle of out of Court self-serving statements. One is Mr Morrissey wants to elicit the material to show that the accused had additional pressure, not only of being possibly wrongly charged with an offence but also having a mental breakdown. Further, Mr Morrissey has sought to rely upon the material as to its tone.
In my view neither argument suffices to make this material admissible. There is a substantial amount of material, as Mr Rapke reviewed at T1557 to T1558 of the general state of the accused, plus of course the material in the King tapes which has already been played before the jury. As to that last matter, Mr Morrissey has said this TI material is different from the King material because the King material could be said by the prosecution to be manipulation by the accused of Mr King to stop Mr King going to a counsellor and thereby the material getting to the police. Doubtless that is what the prosecution will say. Mr Morrissey has said that this extraneous material, the TI material, does not have that characteristic and therefore should be admitted on that account because it is different from the purpose-specific King material which is to prevent King going to a counsellor.
In my view that is a distinction without a difference. The reality is that these are self-serving statements made out of Court; they have no admissibility for testimonial purposes; no admissibility otherwise; and I rule that they are not admissible.
A further issue was raised by Mr Rapke, in my view it is not necessary to go to this but I simply record it – as to the TI intercept between 11 and 21 September 2005, is that inherent in them is the spectre of a lie detector test, which was in fact conducted on 20 September 2005. Mr Rapke has put that if the TI self-serving proclamations of innocence, with their emotional panoply, go in, the prosecution, in order to properly present that material, would need to have in the lie detector test aspects of it because, Mr Rapke said, they are integral to the holistic entity. Demonstrably it would be undesirable for the accused if any lie detector reference went in, let alone any suggestion that he failed it. That plainly should never go before the jury, and it will not. But Mr Rapke’s submission is that not to have the lie detector reference in these TI materials unfairly puts the Crown in a wrongful position. I think that is right but I do not rely upon that in itself. I think antecedently the material is simply self-serving and inadmissible, and I so rule.

The Court was provided with a schedule which referred to the telephone intercepts and the primary statements made by the applicant in those intercepts upon which the defence had wished to rely. The judge’s ruling excluding such evidence, it was submitted, had created a miscarriage of justice as the applicant was deprived of material which supported his characterisation of his part in the conversations with King contained in exhibits H and I; namely that he was a stressed man fearing the further stress of an unjustified investigation, based upon what turned out to be an incorrect recollection by King.[48]
[48]The ‘dream of an accident’ raised by King in his conversations with the applicant in Exhibits H and I was recanted by King in evidence and was replaced by the explicit statement that the applicant intended to drown the children on Fathers’ Day in a dam.

The general rule precluding the admission of self-serving out of Court statements and the exception which permits exculpatory utterances to be admitted where they are ‘mixed’ with inculpatory statements was recently considered by this Court in R v Rudd.[49] Redlich JA (with whom Maxwell P and Vickery AJA agreed) said.

Ordinarily, a statement which is purely exculpatory or self-serving is not evidence of the truth of its contents and is not admissible. The clear exception is usually expressed as follows. A self-serving statement will be admissible where it forms part of a mixed statement made before the accused is charged, which contains both inculpatory and exculpatory passages. Hence, where one party puts in evidence a statement made by the other, the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated. The genesis of the exception is the essential notion of ‘fair play’. The exception is identified in Cross as being that ‘when an admission is read, everything ought to be read which is fairly connected with that admission’. Thus a statement of the accused placed in evidence by the Crown becomes evidence for the accused as well as against him. The accused is not confined to passages of his statement that qualify or explain the admissions upon which the Crown relies[50]

Later his Honour stated:
In addition, the mixed statement exception is broad enough to admit exculpatory statements not made at the same time as the inculpatory statement relied upon by the Crown, provided that the exculpatory statement is made in circumstances which connect it to the purpose upon which the admissibility of the inculpatory statement rests.[51]

[49][2009] VSCA 213.

[50]Ibid [43].

[51]Ibid [57].

The telephone intercepts cannot be viewed as part of a ‘mixed statement’ nor can they be brought within the exception to the rule explained in Rudd. The trial judge in our view rightly ruled the intercepts inadmissible.

Before leaving this ground we observe that the defence at trial wished to have excluded from the content of the telephone intercepts, any passages which referred to the lie detector test to which the applicant submitted. The prosecution resisted the suggestion that the conversations could be so edited. The implication that arose from the defence submission was that the applicant would not have persisted with the application to have the telephone conversations admitted in the event that those passages were not removed. No argument was advanced on the appeal that the trial judge was incorrect in concluding that to have removed the passages which referred to the lie detector test would have unfairly unprejudiced the Crown.

This ground is not made out.

Ground 25: Failure to give an adequate Zoneff warning regarding the evidence of the ‘dam-side’ conduct of the applicant
Regarding the evidence of the ‘dam-side’ conduct of Mr Farquharson, the learned trial judge erred by failing to give adequate directions to guard against the danger that the jury might misuse this evidence as admissions by conduct.

It is convenient to refer to the trial judge’s summary of this particular evidence which was addressed in the course of the applicant’s no case submission at the conclusion of the prosecution evidence.[52]

When the accused first spoke to the first of two persons who came to the scene, Mr Shane Atkinson, the accused said he had either had a coughing fit or had done a wheel-bearing and two minutes later asked for a smoke. In cross-examination Mr Atkinson said that the accused said, ‘I must have had a coughing fit and passed out. I woke up in the water’, which statement was not made at the commencement of the conversation but during its progress. To the other person who first arrived, Mr Toni McClelland, the accused said ‘it must have been a wheel-bearing’. Then shortly after that he said ‘I must have had a coughing fit, I woke up in the water and I couldn’t get the kids out’. To the first police officer who arrived, Snr Constable Harmon, at 8.10pm from Geelong Uniform, the accused said ‘I’ve had a chest pain and I just blacked out of the bridge and the car went into the dam’. The accused did not mention anything to the first police officer at the scene about a coughing fit. The accused said to a number of persons attending the scene, notably the first two, Mr Atkinson and Mr McClelland ‘its too late’ in response to the young men offering to dive into the dam to seek the children. The accused in his interview, exhibit L, by the homicide squad on 6 September, at question 100 said that he thought ‘if I can wave someone down they might be able to come and help me’. At question 103 he said ‘I swam to the road [sic] and walked back to the road and tried to wave people down to stop and help me’. At question 418 he said ‘I went and swam to the road to get people to help me’. The accused did not ask for help to the persons who first came to the scene. Rather, the statements by the accused at the scene were ‘its too late’. Indeed to Mr Atkinson, ‘its too late. No, don’t go down there’ – referring to the dam. Further, the accused refused the offer of telephone 000. No person who attended the scene observed the accused attempt to rescue the children.
That is the factual state of the evidence at the scene. The jury would be entitled to act upon the conduct of the accused as being so contrary to ordinary human behaviour and especially so contrary to ordinary paternal behaviour, as to be capable with other material of founding an inference of guilt in this case.[53]

[52]See Ruling No 10 2007 VSC 464.

[53]Paragraphs [6] and [7].

On appeal it was submitted that his Honour in his charge had given an inadequate Zoneff direction regarding the conduct of the applicant upon emerging from the dam. In fact the trial judge did not seek to give a Zoneff direction at all. He instructed the jury as follows:

If you find on the evidence, ladies and gentlemen, that beside the dam, after the accused came out of the dam and when people arrived, the accused did nothing to help the children, you are entitled to use that finding, if you make it, on the question of the truthfulness of the accused when he said to the police and others, ‘I tried to help the children.’
You are also entitled to use him not helping the children beside the dam, if you find that, on the question of his general relationship with his wife and children. But you are not entitled to use not helping the children beside the dam as evidence of intention to kill them. It can only be used on the question of, did he tell the police the truth when he said, ‘I tried to help them,’ or not, and on the question of his general relationship to his wife and children.

It was not in dispute that the Crown did not rely upon this evidence, nor could it have, to support a consciousness of guilt. The trial judge having instructed the jury that it could only be used for two purposes, and no others, it was unnecessary that he further specifically instruct the jury that they could not use it as evidence of consciousness of guilt. This ground is thus not made out.

Under cover of ground 30 the applicant also complained that the trial judge gave excessive attention to the applicant’s conduct at the dam in the aftermath of the incident, by a detailed restatement of the evidence; and a failure to remind the jury of the cross-examination or the countervailing evidence of Roberts which answered the allegation that the applicant showed a lack of concern for his children. This was said to constitute prejudicial overemphasis as the applicant contended that it was the clear position of both parties that this material had limited relevance. Given the limited purposes which the judge ascribed to this evidence, it is not entirely clear why the applicant’s conduct at the dam-side received the attention which it did.

In the event that the Crown is to again rely upon this evidence in a re-trial, it is necessary to make some observations about this evidence and the direction which should accompany it. First, contrary to the trial judge’s direction to the jury, it was the Crown’s submission to this Court that it did rely upon this evidence as circumstantial evidence which bore upon the issue of the applicant’s intent. The prosecutor’s closing address shows that it was submitted to the jury that the applicant’s dam-side conduct should be viewed as ‘bizarre’ and ‘troubling’ and not the sort of conduct that one would accept from a loving father who desperately wanted to save his children. The prosecutor had also submitted to the jury that the applicant had embellished his account to investigators that he had done all he could to assist his children and that his conduct at the dam demonstrated that he was an ‘unreliable historian’.

As the joint judgment in R v Gojanovic[54] states, relationship evidence is admissible provided it is relevant to an issue between the Crown and the accused. The joint judgment contains the following important passage:

[it] is insufficient for the evidence to be admissible simply on the basis that it relates to or bears upon a relationship between the accused and the victim. Rather, as evidence arising from the relationship, it must as a matter of logic add to or detract from the probabilities of the Crown case in respect of one or more of the elements of the offence which must be established by the Crown. Those principles are not in dispute and derive from cases such as Wilson v The Queen; R v Iuliano; R v Hissey; R v Anderson; R v Frawley.
In Anderson’s case Winneke P (with whom Phillips and Chernov JJA agreed) stated that such evidence is particularly relevant where the state of mind of the accused at the time of the offence is in issue.[55]

[54][No 2] [2007] VSCA 153, [87] (Ashley, Kellam JJA, Kay AJA).

[55]Heydon J had expressed a similar view in R v Clark [2001] NSWCCA 494, [85]-[109].

If the conduct of the applicant at the dam was admissible – and we are not to be understood as expressing any view about the questions of its admissibility as it was not raised on the appeal – it could relate to the applicant’s relationship with his wife and children, which in turn would be relevant to the issue of the applicant’s intent[56] – or it could relate the truthfulness of his assertion to investigators that he tried to help the children, which in turn would be relevant to the credibility of the applicant’s account.
[56]See Wilson v The Queen (1971) 123 CLR 334 and the reference in a number of the judgements to the dicta of Kennedy J in R v Bond [1906] 2 KB 389, 397 and 398.

Ground 27: The adequacy of Directions concerning Robert’s evidence.

The thrust of the complaint made under ground 27 is that the trial judge failed to adequately sum up the evidence of Greg Roberts to the jury. As described above, Roberts was a grief counsellor who sought to explain the dam-side conduct of the applicant, including the request for cigarettes and a lack of any obvious display of grief or concern.

The applicant’s counsel was content to rely upon his written submissions in relation to this ground. The complaint made under this ground is similar to the complaint made concerning the summing up of the evidence of Urquhart. Furthermore, it was said the trial judge failed to draw sufficient attention to the evidence of Roberts, given the potential for prejudice that might flow from evidence of the dam-side conduct. It was also said that this evidence was improperly summarised and was dealt with together with the medical evidence, thereby reducing its prominence and importance before to the jury.

There is nothing to this ground. If anything, as was pointed out by the Crown, summarising this evidence alongside the medical evidence might have inadvertently given the evidence of Roberts (a social worker and not medically qualified) a gravitas that it might not have otherwise possessed. The trial judge properly summarised his evidence and, having done so, it was a matter for the jury to consider the weight which it ought to have been afforded. This ground is not made out.

Ground 30: Misdirections – Charge Unbalanced

We have largely addressed the specific complaints about the adequacy of the directions in dealing with each of the strand of the Crown case.[57] Ground 30 was argued at a more general level it being contended that the charge was unbalanced. Under cover of this ground the applicant complained that the trial judge had failed to remind the jury of the alternative views of the evidence relevant to the path of the vehicle into the dam and had failed to put the defence arguments about matters which undermined Urquhart’s and Dr Naughton’s evidence and the adequacy of the police investigation. As we have said, it was open to his Honour to select the method which he did to remind the jury of the issues and the evidence which related to them. We consider that the directions which were given were sufficient.
[57]The applicant acknowledged that in view of the complaints raised under ground 10, which concerned the adequacy of the directions on the medical evidence, ground 17, which concerned the adequacy of the directions on the engineering and reconstruction evidence, ground 19 which concerned the adequacy of the directions on King’s evidence , ground of 23 which concerned the adequacy of the directions on consciousness of guilt, and ground 27 which concerned the adequacy of the directions on Roberts evidence, ground 30 would be pursued only at a more general level.

Other aspects of the charge were the subject of complaint but given the conclusions that we have reached on other grounds it is unnecessary to give any further consideration to this particular ground.

Grounds 1 and 2: Unsafe and Unsatisfactory Grounds

Ground 1 raises the contention that the verdict was unsafe and unsatisfactory because there was insufficient evidence to sustain a conviction on any count. Under ground 2 it is said that the verdict was unsafe and unsatisfactory because the jury ought not to have been satisfied of the guilt of the applicant on any count.

The grounds of appeal have required us to give detailed consideration to each of the three principle strands of the Crown case. The first, the scientific and engineering evidence related to the movement of the applicant’s vehicle. That evidence raised the hypothesis that the vehicle would not have travelled as it did unless it had been purposefully steered and controlled. The second was the medical evidence which was directed to excluding as a reasonable hypothesis consistent with innocence that the applicant had blacked out at the wheel of his vehicle as a consequence of a coughing fit. Third was the admissions made by the applicant to Gregory King some months before the fatal incident that he hated his wife and children and that he intended to pay back his wife ‘big time’. The evidence of King that the applicant had said he would take away the thing most precious to his wife, her children, and that this would occur on Fathers’ Day and would involve a dam and an accident in which he got out but his children did not was, if accepted, cogent evidence of the applicant’s guilt.

We accept that, if the jury were satisfied that the terms of the conversation were as alleged in King’s third statement, a finding that the applicant’s responses in Exhibit I were born of consciousness of guilt would add little to the jury’s satisfaction that the applicant was guilty of murder. When coupled with the accident reconstruction and medical evidence, the fact that the applicant had told King that he hated his children and intended to kill them in a drowning accident on Fathers’ Day from which only he escaped, and the fact that his children were indeed killed in that fashion on that day, would almost certainly be enough without more for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder.

In addition to the three principle strands of evidence, there was other circumstantial evidence relied upon by the Crown. First, there was the marital break-up between the applicant and his wife in 2004 and its affect on the applicant. Secondly, there was the fact that the applicant had been suffering from a chronic depressive illness since 2000 and was on anti-depression medication at the time of the crime. Thirdly, there was the fact that the applicant’s former wife had formed a romantic attachment with a man, Stephen Moules. The Crown relied upon the affect that this had on the applicant. There was evidence that the applicant feared that Moules would supplant him as the father figure to his three children. Fourthly, there was evidence of the applicant’s antipathy towards his former wife. Fifthly, the applicant was under financial pressure at the time of the crime and was angry that he had received recent notification of a requirement that he increase his child support to his former wife. Sixthly, there was evidence that the applicant was annoyed at the fact that his former wife had retained the better vehicle. Seventhly, when the applicant’s vehicle was recovered from the dam the lights were switched off and the ignition was locked. Eighthly, there was evidence consistent with the view that the applicant had failed to take any steps to assist his children after his got out of the dam. Ninthly, there was other evidence of the applicant’s general demeanour and behaviour in the aftermath of the fatal incident and later that evening when he returned to the dam-site. Tenthly, there was evidence in the taped conversations Exhibits H and I regarding the applicant’s attempts to dissuade King from talking about his alleged conversation with the applicant at the fish and chip shop in June/July 2005 from which a consciousness of guilt might be inferred. Finally, we should refer to counsel for the applicant’s frank acknowledgement that if Urquhart’s evidence of three steering inputs was accepted, predicated as it was on the assumption that the vehicle was on its correct side of the road before the first input, that evidence, in conjunction with the evidence of King could support the verdict.

The applicant’s criticisms of the strands of the Crown case, the evidence of consciousness of guilt and the applicant’s conduct at the dam site have all been the subject of consideration in the context of the specific grounds of appeal concerned with those subjects. It is unnecessary to revisit those criticisms. In addition, the applicant placed particular emphasis on a number of features of the trial. First, it was said that that there was no evidence that the applicant was aware of the condition of cough syncope before the accident. Secondly, cough syncope could not be excluded as an innocent hypothesis, particularly in the light of Dr Steinfort’s evidence and Dr Naughton’s unsatisfactory testimony. Thirdly, the circumstances in which King came to make the extreme allegations gave rise to a reasonable doubt about his evidence. Counsel placed emphasis upon the fact that King’s account changed in a crucial way and that his wife had no recollection of him mentioning the conversation with the applicant to her. It was said that the applicant’s guilt could not be established unless the jury were satisfied beyond reasonable doubt about King’s evidence and that as there was no corroboration of King the verdict was unsafe.

In our view the criticisms advanced of the Crown case do not individually or collectively preclude the conclusion that the evidence was sufficient to establish the applicant’s guilt beyond reasonable doubt. This was not a circumstantial case in which the Crown relied upon ‘links in a chain’. The accumulation of circumstantial evidence was sufficient to establish guilt, the acceptance of one circumstance enabling other circumstances to be more readily accepted. In our view there was no aspect of the evidence which must have led the jury to entertain a reasonable doubt about the applicant’s guilt.[58] That is to say it was open to a jury acting reasonably to be satisfied of guilt to the requisite standard.[59]
[58]Libke v The Queen (2007) 230 CLR 559; R v Klamo (2008) 18VR 644, [38]-[40].
[59]M v The Queen (1994) 181 CLR 482.

Grounds 1 and 2 are not made out.

Conclusion

The applicant has succeeded on a number of grounds. We would grant the application for leave to appeal, determine the appeal instanter, allow the appeal and order that there be a retrial.

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[2009] VSCA 307

17 December 2009