R v Freeman
[2000] VSCA 88
•25 May 2000
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted
No. 131 of 1999
| THE QUEEN |
| v |
| SUSAN ELIZABETH FREEMAN |
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JUDGES: | PHILLIPS and CALLAWAY, JJ.A. and CUMMINS, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 21 and 22 February 2000 | |
DATE OF JUDGMENT: | 25 May 2000 | |
MEDIUM NEUTRAL CITATION: | [2000] VSCA 88 | |
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Criminal law – Murder – Wife accused of procuring another to murder her husband – Evidence of go-between - Unreliability of witness – Whether verdict unsafe and unsatisfactory.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr. G.R. Flatman, Q.C., D.P.P. | P.C. Wood, Solicitor for Public Prosecutions |
| For the Applicant | Mr. I.D. Hill, Q.C. with Miss L. Torres | J.A. Middlemis |
PHILLIPS, J. A.:
I agree in the judgment of Cummins, A.J.A.
CALLAWAY, J. A.:
I also agree in the judgment of Cummins, A.J.A.
CUMMINS, A.J.A.:
The applicant, Susan Elizabeth Freeman, was convicted in the Supreme Court at Melbourne of the murder near Castlemaine on 28 November 1996 of Ian Freeman. The deceased was the applicant's husband. The prosecution case was that the deceased was killed by one Emmanuel Chatzidimitriou who was retained for reward by the applicant to kill her husband. Both the applicant and Mr Chatzidimitriou were charged as principals with the murder. They were jointly presented. The learned trial judge directed that each be tried separately. The learned judge so directed essentially because he found that the admissible prosecution evidence against each respective accused was significantly different, as contemplated by R v Darby.[1] In the event Mr Chatzidimitriou was tried first, at the sittings of the Court at Bendigo. He was convicted by a jury of murder. Sentence was deferred. Then the applicant was tried in Melbourne. She too was convicted by a jury of murder. The learned trial judge (who had presided at the Bendigo and Melbourne trials), after pleas, sentenced each accused to 22 years' imprisonment with a direction that a minimum period of 17 years' imprisonment be served before eligibility for parole. Each has applied (on different grounds) for leave to appeal against conviction. The applications, as with the trials, were heard separately.
[1](1982) 148 C.L.R. 668
The applicant Mrs Freeman has applied for leave to appeal against conviction on the following grounds:
1.The verdict of the jury in all the circumstances was unsafe or unsatisfactory so as to constitute a miscarriage of justice.
2.The verdict of the jury was unreasonable and in all the circumstances existing cannot be supported having regard to all the evidence.
Mrs Freeman has not applied for leave to appeal against sentence.
Before us, the two grounds of appeal were argued together. At trial the prosecution alleged that the applicant was a disaffected wife driven by greed and who wished to have her husband killed so that she would benefit from his death. The case was that the applicant initially approached one Ian Richard Brown with the proposal that for reward he kill her husband, that Mr Brown declined himself to do so but informed Mr Chatzidimitriou of the proposal, that Mr Chatzidimitriou took up the proposal, and that after considerable discussion and planning with the applicant, on 28 November 1996 Mr Chatzidimitriou killed the deceased. Ian Richard Brown was a leading witness for the prosecution at the trial of the applicant Mrs Freeman (as he was, too, at the earlier trial of Mr Chatzidimitriou). Counsel for Mrs. Freeman submitted on this application that the prosecution case depended upon the evidence of Mr Brown and that that evidence was tainted and unreliable, thereby rendering the verdict unsafe and unsatisfactory in the sense that it was unreasonable or could not be supported having regard to the evidence. As will be seen, however, there was much more to the prosecution case than Mr Brown's evidence. The two grounds taken by the applicant require this Court to exercise its own judgment as to the evidence to determine whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty[2]. In my judgment it was plainly so and accordingly neither ground is made out.
[2]M. v. R. (1994) 181 C.L.R. 487; see also Chidiac v. R (1991) 171 C.L.R. 432 and Jones v R (1997) 191 C.L.R. 439.
Context of the application
Mrs Freeman was born on 20 February 1965 and was 31 years of age at the time of the relevant events in 1996. Her husband, the deceased, was 54 years of age. The applicant and the deceased married in 1991. It was the second marriage for each of them and they each had children by those previous marriages. It was the prosecution case that from early in their marriage there was tension between the applicant and the deceased because of the difficulties a number of the children had in adjusting to their new relationships. After living in Mildura and Wodonga, the applicant and the deceased moved in 1995 to Bendigo. There they purchased a Tattslotto agency at the Lansell Plaza Shopping Centre, Kangaroo Flat, Bendigo. This was a heavy financial commitment, financed partly from assets of theirs and partly from the deceased's superannuation. The applicant conducted the agency. The deceased was a local teacher who assisted part time in the agency. By 1996 the business was floundering and so was the marriage.
The prosecution case was that the applicant disliked her husband, was suspicious of him and believed he was dishonestly removing cash from the business and gratuitously giving Tattslotto tickets to his children. It appeared that the deceased was contemplating leaving the applicant and had told his children so. It was in September 1996 that the applicant, who knew Mr Brown, complained to him about the relationship with her husband and (the prosecution claimed) asked Brown if he would kill him or knew anyone else who would and, although Brown himself declined to do the killing, he told Mr Chatzidimitriou of the proposal and introduced him to the applicant to that end. The arrangement between the applicant and Mr Chatzidimitriou was allegedly for a down payment of $10,000 and a further payment of $40,000 upon the killing of the deceased. As will be seen, there were numerous telephone discussions and meetings between the applicant and Mr Brown from August 1996 and between the applicant and Mr Chatzidimitriou from September 1996.
On the morning of Friday 29 November 1996 the body of the deceased was found floating in the waters of Cairn Curran Reservoir. The reservoir is just west of Castlemaine and some kilometres south-west of Bendigo. The body was floating near the deceased’s vehicle which was partially submerged near the shore of the reservoir. The body was removed to the Bendigo Hospital for autopsy. The pathologist, Dr M.E. Robson, found that the cause of death was consistent with drowning.
At the autopsy were discovered a number of petechial haemorrhages, which are unusual in cases of drowning. There were abrasions to the deceased, notably to his right and left wrists. The deceased was short sighted and wore glasses when he drove. The glasses were found not on the deceased but on the rear seat of the vehicle. Two days after the funeral, the applicant with Mr Brown attended at the A.N.Z. Bank in Collins Street, Melbourne and withdrew the deceased's stamp and coin collections, the former of which she estimated to be valued at $25,000. According to the prosecution, the applicant believed that she stood to gain from the death of the deceased by inheriting his stamp and coin collection, superannuation (of some $76,000) and as beneficiary under his will. She was unaware that the applicant had changed his will to make his children his sole beneficiaries.
Then Mr Brown came forward to police. He had numerous conversations with the applicant, and with Mr Chatzidimitriou, which were covertly tape-recorded. Ultimately both the applicant and Mr Chatzidimitriou were charged with the murder of the deceased. At the trial in Melbourne of the applicant, the defence was that this indeed was a suicide or, accurately, that the prosecution had failed to prove beyond reasonable doubt that this was a homicide. Mr. Brown was cross examined; Mr. Chatzidimitriou was not called as witness and Mrs Freeman remained mute. (Although not here relevant, at the earlier trial in Bendigo of Mr Chatzidimitriou the defence was that this was not a suicide but a homicide and that the killer was none other than Ian Richard Brown. Brown was cross-examined to that end and Mr Chatzidimitriou gave evidence).
At Mrs. Freeman's trial, the evidence in the prosecution case can be divided into six main areas: the scene; the autopsy; the conduct of the deceased and the applicant; the evidence of Mr Brown; the movements and enrichment of Mr Chatzidimitriou; and correspondence and telephone conversations of the applicant. I deal with each in turn.
The scene
The deceased’s floating body was discovered by two fishers, the Polinelli brothers, at about 9.10 a.m. on Friday, 29 November 1996, in the Cairn Curran Reservoir west of Castlemaine. From their small fishing boat on the Reservoir, the Polinellis noticed a vehicle – the deceased's beige Mitsubishi Colt sedan – partly submerged in water near the reservoir shore, noticed that the driver's door was open, and that a rag or bag was floating nearby. They came closer and observed the deceased's body floating face down in the water, about 10 metres from the shore. It was in about a metre of water, bobbing up and down, some ten to fifteen metres from the driver's door of the car. They caused "weir blokes" to be called and attend. About half an hour later two employees of Goulburn Murray Water attended the scene. During that period the body was not interfered with and it remained substantially in the same position as the weather at that time was calm. Mr K. J. Henderson and Mr P. Gerolemou, employees of Goulburn Murray Water, attended the scene. Ambulance and police were called. About half an hour after the Polinelli discovery of the body, it was removed from the reservoir. By that time the wind had sprung up. One of the ambulance officers and one of the Polinellis went out in the boat to where the body was floating. The ambulance officer held the collar of the deceased's clothing and his body was floated to a nearby retaining wall. The body was in a state of rigor mortis with the right arm extended forwards. At the retaining wall, another ambulance officer and other persons pulled the body from the water onto the wall. The body had been face down in the water, which was shallow at the wall and had rocks beneath. In removing the body from the water it was rolled onto its back, lifted up the bank, laid down and covered with a blanket. The body had been clothed in a short sleeved shirt, long trousers with a belt, socks and shoes. By the time local police arrived, just before 10.00 a.m., the deceased's body was lying on dry land.
Around mid-morning, a tow-truck arrived from Castlemaine. By means of an extendable crane the deceased's vehicle was lifted from the water. To do so the tow-truck operator partially wound down the four windows of the vehicle in order to insert ropes. In the water the vehicle was in an unlocked state and in forward gear. The interior was water filled and personal effects were floating inside. The driver's door was closed at this stage, apparently from the action of the water under wind. Upon land, the vehicle was examined. Keys were in the ignition, the ignition was on and the battery flat. The rear left split seat was down. The deceased's wallet containing personal papers was found amongst items on the front floor of the vehicle. Upon later examination at the Forensic Science Centre Macleod, when the rear split seat was folded up, a pair of spectacles was found on the seat. They were the spectacles of the deceased. All the locking knobs for the doors of the vehicle were missing. No hair or blood was found in the vehicle. Upon later mechanical examination the steering and brakes of the vehicle were found to be in working order and there were no holes in the exhaust. No identifiable fingerprints were found on the deceased's vehicle.
The daughter of the deceased gave evidence that the deceased wore glasses when he drove and the glasses were usually kept in the glove box of the vehicle. An optometrist gave evidence that the deceased suffered from shortsightedness, that his vision would begin to be blurry at 1.5 metres, and that unaided he would have difficulty reading street signs while driving, especially at night. A spectacle maker gave evidence that the frame of the spectacles on the back seat appeared to be distorted and that the frame was quite strong, being made of stainless steel and would take a fair amount of knocking around to be bent. The floor of the reservoir where the body had been floating and the car had been positioned were examined and nothing was found.
The autopsy
One of the ambulance officers stated that in removing the deceased from the water he held on to the cuff of the deceased's trousers. Another ambulance officer grabbed the middle of the body in the shirt or belt area. The third grabbed a wrist of the deceased. The skin did not give way when she grabbed it. When the body was on the shore, Mr G. Polinelli noticed what appeared to be bruising (but what may have been post mortem lividity, according to a medical technician later called) around the deceased's right ribs. Detective Senior Constable Pearson from Maryborough C.I.B. arrived at 10.15 a.m. He examined the body of the deceased on the bank and found a very minor cut on the left elbow but no other apparent marks or injuries.
In early afternoon an undertaker, Mr N. T. Walsh, arrived. The body was on the bank and in a state of rigor mortis. The arms of the deceased were in a state of extension and would not straighten. Ultimately Mr Walsh undid the trouser belt (which had a buckle) of the deceased, held the arms down and fastened the belt around the arms and body. He said that was a normal procedure. When trying to straighten the arms, he noticed marks on the back and side of the deceased's left wrist. When straightening the arms he did not use excessive force. The body was removed to the mortuary at the Bendigo Hospital.
When the body was received there, a mortuary technician, Mrs L. M. Boyle, observed brownish marks on both wrists of the deceased, in the position where the belt was but at which sites there was no pressure indentation. The belt was removed from the arms and then re-fastened until the autopsy. Senior Constable Holland was in attendance and observed a distinct red mark on the inside of each wrist when the belt was removed. The body was refrigerated, awaiting autopsy the following Monday, 2 December 1996.
On Monday 2 December, the body was prepared for autopsy by Mr N. J. Britten, mortuary technician. He observed brown marks around the wrists of the deceased in the area where the belt had been and concluded the marks were made by the belt. No photographs were taken because the only mortuary camera was being repaired at the time.
The autopsy was conducted by Dr M. E. Robson, Director of Pathology at the Bendigo Hospital, at that hospital on 2 December 1996. He noted that the deceased's clothing was not ripped or torn. He observed the following upon examination of the body:
(a) in the conjunciva (or whites) of the eyes, there were 5 to 10 petechial haemorrhages which are quite unusual in cases of drowning and usual in cases of asphyxia;
(b) there was a very small abrasion to the iliac crest;
(c) there was a superficial abrasion to the right elbow, which could have been caused during transportation of the body;
(d) there was a band-like abrasion on the back of the right wrist measuring 90 by 10mm;
(e) there were two similar abrasions on the lateral and medial aspects of the left wrist measuring 25 by 10mm and 50 by 10mm respectively;
(f) there were no abrasions or cuts to the fingers or hands; and
(g) the lungs were heavy, weighing approximately twice normal weight, and there was a frothy pink fluid in the trachea, both of which findings being indicators of death by drowning.
Dr Robson arranged for a toxicology report which found no trace of alcohol or illicit drugs in the blood of the deceased. Dr Robson found the cause of death to be consistent with drowning. He was unable to state whether the marks on the wrists of the deceased were caused before or after death. The jury, in a perceptive question, asked: "If a person is already deceased when entering the water, can water enter the lungs to this extent and can pink frothing occur?" Dr. Robson said that could not occur in a deceased person.
Professor Stephen Moyle Cordner, Director of the Victorian Institute of Forensic Medicine and Professor of Forensic Medicine at Monash University, gave evidence that he had read the autopsy report of Dr. Robson and had examined the photographs of the deceased by the reservoir. He gave evidence as follows. He had no basis for disagreeing that the cause of death was consistent with drowning. The findings of petechial haemorrhages was fairly uncommon if not rare in drowning. It is quite hard to drown yourself. Of particular interest were the presence of petechial haemorrhages, the description Dr. Robson gave of abrasion around the back of the right wrist, abrasion on each side of the left wrist, the fact that Dr. Robson concluded the cause of death was consistent with drowning and the fact that there was no other significant injury. The discolouration on the photograph of the right wrist is probably a bruise, but could be an abrasion. For a bruise to occur after death requires a lot of damage as the heart is not pumping. The trauma required to force the arms to be held by the belt as here occurred would not be close to or in the same dimension as the type of trauma associated with post mortem bruising. The level of force associated with securing the deceased's arms is not anywhere near the degree of force associated with causing bruising after death. The marks on the wrists obviously bring to mind the possibility that the wrists were bound (ante mortem) in some sort of way. Suicide by drowning is of the order of 5% of suicides. We do not recognise that fit and healthy people really have the capacity to drown themselves unless they have assisted themselves to drown in some other way such as by drugs or alcohol. A forensic pathologist's approach to this death would be that the circumstances are outside his experience of accident and of suicide and there was no natural cause, which by exclusion leaves the option homicide. He would conclude this was a suspicious death. He could not exclude accident or suicide and cannot conclude it was homicide. In cross-examination the Professor stated that his saying that the injuries to the wrists were possibly from the wrists being bound was not a guess and was based upon the pattern of those injuries. The possibility is indicated by the fact that the injuries were around the wrist and not somewhere else, the fact that it involves both wrists, and the fact that all three of the wrist injuries as described by Dr. Robson have the same width.
During the night of 28 November 1996 and early morning of 29 November, the applicant twice rang the watchhouse at the Bendigo Police Station (at unstated times) and reported her husband as missing. At about 9.00 a.m. on Friday 29 November, Senior Constable Holland of the Bendigo Police attended at the applicant's premises and completed a missing person's report upon information provided by the applicant. The applicant told him there were no problems with the marriage, her husband was not depressed and everything was okay. Later on 29 November, about mid-morning, after receiving a police message as to the discovery of the deceased's body at Cairn Curran Reservoir, he attended the applicant's premises and informed her of his death. The applicant became visibly distressed. Mr I. R. Brown was present at the premises when the police attended. Later that day the applicant in the company of Mr Brown attended the Bendigo mortuary for the purpose of identifying the body. Again the applicant became visibly upset. The mortuary technician, Mrs L. M. Boyle, had a conversation with the applicant. The applicant came into the mortuary, sat on the couch and said, "she didn't understand what had happened and that she just couldn't understand why he would have taken his own life."
The conduct of deceased and applicant
The deceased was employed in the Victorian Public Service as an educational support officer. On 28 November 1996 he underwent his first annual performance assessment. His manager, Mr D. Baud, was present during the assessment and stated that it went extremely well. The deceased was graded as something like highly competent. Mr Baud believed that this meant a lot to the deceased as it was his first year of employment with the office, and it was a recognition that he had performed extremely well. It also meant that he would get a pay rise. Mr Baud also noted that funding for his job had been guaranteed for 1997, and that the deceased left the office that day in a very buoyant mood. The next day, being the 29 November 1996, the deceased was to take part in a meeting to determine what funding was going to be allocated to service providers in the following year. The meeting was scheduled to commence at 9.00 a.m. After he left the office on 28 November 1996, the deceased commenced his shift at the Tattslotto outlet. At about 9.30 p.m., his daughter Claire Freeman called him and they spoke for a few minutes before they were interrupted by a number of customers. Claire Freeman described her father's mood as "just happy, normal and joking". She arranged for her father to come to visit her on the Mornington Peninsula on the following Friday night. After he had stayed on the Friday night he was going to Mallacoota with her for the weekend. She last spoke to him when he called her back and told her that he had just finished vacuuming, and was ready to lock up the shop and go home. She identified a letter which was tendered as exhibit C as a letter from her father asking her to come to Mallacoota with him on Sunday 8 and Monday 9 December 1996. Computer records stated that the alarm of the Tattslotto premises was activated at 21.39 hours on 28 November 1996, which meant that the alarm had been turned on at 9.38 p.m. that night.
Claire Freeman stated that on an occasion when he visited her in Queensland on Australia Day in 1995, her father told her that he was going to leave the applicant. He discussed his intention to leave her during several telephone conversations. On the Wednesday before he died he told her that he was looking for a flat so that he could move out. He also discussed the flat while he was working at the Tattslotto outlet on 28 November 1996.
Ms C. C. Childs, one of the deceased's day co-workers, would see him regularly at work. She had known him since March 1995. She recalled seeing him at about 4.30 p.m. on 28 November 1996. He came into her office and she noticed that his mood was different to usual. Instead of coming into her office and talking, he just kept looking at her, appeared to be distracted and made no conversation. She was trying to work at her computer, and did not talk to him. She eventually went home about ten minutes later. She recalled that in July 1996 her niece had disappeared and was presumed to be drowned. The deceased had tried to console her and told her that drowning was meant to be the most peaceful way to die. She stated that the deceased had previously expressed some affection towards her. He also told her how he was unhappily married. She told him that she was happily married and told her husband about these approaches. In cross-examination she stated that she had noted for some time that he often appeared to be depressed. She agreed that the romantic approaches had stopped for a period of time, but began again towards the end of 1996 after the death of her niece. However, she maintained a friendship with him, and his romantic approaches would not occur every time they met.
Mrs F. T. Whelan, another day co-worker of the deceased, also saw him on the afternoon of 28 November 1996. She had taken part in a meeting with the deceased and other people during the afternoon before his performance appraisal. She stated that he was quite professional during the course of the meeting. However, she spoke to him after the meeting at about 3.30 p.m. and he became emotional, had tears in is eyes and his hands were trembling. He then began talking about what it must be like for someone like him not to have work at his stage of life.
In November 1996 Ms R. E. Sandner, the proprietor of a Tattslotto outlet in Strath Village, Bendigo, met the applicant who was the only other female representative for Tattersalls in Bendigo. They discussed their businesses, and the applicant told her that their outlet was not doing as well as it had been prior to the time they took over. She gave Sandner the impression that she did not have a very good relationship with her husband, and never had anything positive to say about him. She said she disliked him and was sick of him not pulling his weight around the shop. She also said he spent more time looking after the kids than her. She stated that she thought that tickets had been going missing, but did not do a reconciliation at the end of the day so it would have been difficult to pinpoint when or how much. She also recalled that the applicant had told her that she thought that her husband was having an affair with the lady from the Bright Eyes Sunglasses shop which was opposite the Tattslotto outlet in Lansel Plaza.
Ms Sandner began to work for the applicant in the Tattslotto agency about a week after the death of the deceased. After his death the applicant told her a number of different stories about how he died. On one occasion she told Sandner that he had driven off a cliff in the Reservoir (which she thought was odd because there are no cliffs near the reservoir). On another occasion she told Sandner that he had driven the car into the reservoir and drowned in the car, and another time told her that he had got out of the car and drowned.
Sandner described the Tattslotto business as a disgrace. It was losing a great deal of money and the staff were not properly trained. She stated that she had not met Ian Brown but that the applicant had spoken to him about him. At first she told her that he was her cousin, and then later changed the story and told her that he was a friend she had met through the lotto agency. In cross-examination Sandner stated that it was quite apparent to her that the applicant was unwell after the death of her husband. She was receiving medical attention and taking sedatives.
Mr P. J. Davies, a solicitor employed by Tattersalls, stated that the Freemans had purchased the Tattslotto outlet for $455,000.00 and had borrowed $310,000.00. At the time they purchased the business it was taking about $30,000.00 per week. However by November 1996 it had a weekly income of between $17,365.00 and $19,500.00. The deceased held a policy with the State Superannuation Board. Mr J. L. McKelvie, an employee of the Board, stated that upon his death on 28 November 1996 the deceased's widow was entitled to $417.00 pension a fortnight. If he had not died he would have been entitled to $565.00 a fortnight after he turned 60. It would also possible for her to ask for the pension to be converted into a lump sum. In that case 7 years' worth of the pension would be paid up front, and she would have been entitled to $76,000.00. Claire Freeman stated that her father was an excellent swimmer and collected stamps all of his life. He also received some coins from his father after he died. The stamps and coins were kept in an ANZ Safety bank on the corner of Queen and Collins Streets in Melbourne. She identified the stamps in photograph 13 of booklet two as the stamps that had been kept at the bank. Mr Brown stated that on the Thursday after the deceased was buried Brown accompanied the applicant to Melbourne to collect the coins and stamps from the safe deposit box at the ANZ Bank in Melbourne. She told him that the stamps were worth around $25,000.00 and that the coins were very valuable. He recognised the items depicted in photograph 11 of booklet two as the stamps that were recovered from the bank.
On 1 August 1996 the deceased attended the offices of Mr I. R. Monotti, a solicitor who practised in Bendigo. He instructed Mr Monotti to draft a new will and gave him written instructions that only his two children, Paul and Claire, should be beneficiaries. The will was subsequently drafted and executed on that day. A copy of the will was tendered as exhibit R.
On 11 December 1996 the deceased's desk at his day employment was cleared. Amongst other papers was found two drafts of a letter which appeared to have been written over a period of some months. The drafts were tendered in evidence. They related to the deceased's regrets about the breakdown of his first marriage and were melancholy in character. In it he wrote of the children by his first marriage thus:
"…. They are my only priority in life, for whatever time is left, and it's clear that I can never have anything like the real relationships they deserve and I need, until my personal situation changes radically. I will be making the changes very soon and I hope that we all then can share some semblance of our real family life and good relationships again."
The evidence of Mr Brown
Ian Richard Brown, a pensioner, gave evidence that prior to November 1996 he had done a course at Advanced Techniques in Melbourne and became registered as a crowd control security guard, and had done a correspondence course with Advanced Techniques and became certified as a private inquiry agent. He did not work in those capacities. He first met the applicant in about 1995 or 1996 at her Tattslotto agency in Lansell Plaza, Bendigo where he was a patron. He also met the deceased there. He would see the applicant regularly, sometimes twice a week. They had coffee together some five months before the death of the deceased. On occasions Mr Brown spoke to the applicant about his marital situation. He borrowed money twice from the applicant, once when his car broke down and he borrowed $500.00, and shortly thereafter $250.00 for a friend of his, Ms E. McInnes. On an occasion when he was buying a Tattslotto ticket at Lansell Plaza, the applicant approached him and asked if he would kill her husband or if he knew of anyone who would kill her husband. He told her "No" because he was a professional person, and suggested that she seek some kind of marriage counselling. He was not sure how long before the death of Ian Freeman she made that request, but did note that Ian Freeman lived for three months after he introduced Mr Chatzidimitriou to the applicant. In cross‑examination he stated that she "just said she wanted him taken care of permanently." He asked her what she meant by "taken care of permanently" and she said she wanted him killed. She made a similar request after she asked to speak privately with him away from the shop. He believed that it may have been in Lansell Plaza somewhere, and he told her that if he found a person who was capable of killing her husband he would introduce that person to her. He could not say how long after the first request the second request took place. He told her he would do that because he wanted to get her "off his back." In cross‑examination he stated that he could not say where the request was made: at Lansell Plaza, what day of the week it was, or what month it was. She had told him that she thought her husband was having an affair with another woman. She gave Mr Brown a Tattslotto ticket upon which she drew a map of how to get to her home, and wrote her work and home telephone number, which was tendered. She gave him this ticket after she had requested him to kill her husband. On another occasion she asked him to carry out surveillance on her husband, but he declined as he was not a registered Private Agent. Mrs J. L. Evans, who worked part time at the Tattslotto outlet, confirmed that she saw Mr Brown come into the shop, presumably to get tickets. She also saw him talk to the applicant, and recalled that they went out from the shop together more than once.
On an occasion after the applicant had made the second request, Brown was delivering some engines to a Shell Garage known as Lightning Automotives in Wandong for Mr A. Beacham. Mr Beacham was the proprietor of a motor wreckers in Epsom. The garage was run by Mr Chatzidimitriou. Mr Brown stayed at the garage for about an hour. Mr Beacham confirmed that on 26 July 1996 (or thereabouts) he asked Mr Brown to deliver some engines to Mr Chatzidimitriou. Mr Brown subsequently delivered the motor and the parts. On a later occasion (perhaps a couple of months later) he returned to Mr Chatzidimitriou's garage to collect a motor because the original one he delivered was faulty. Mr Beacham confirmed that the motor or some of the parts were returned on 4 September 1996. He was not able to say whether Brown returned them or a courier was organised. However, his computer record for that day indicated that at 4.22 p.m. a "core deposit" was done for the return of motor parts on that day. On this occasion Mr Brown said to Mr Chatzidimitriou, "I met a woman who wanted to have her husband killed and she was prepared to offer any amount of money, within reason." In fact the applicant had previously said that to Mr Brown. Mr Chatzidimitriou was interested and wanted to know how much she would be paying. Mr Brown told him that was between him and the applicant. After Mr Chatzidimitriou had shown interest, Brown telephoned the applicant and told her he had found somebody who was interested in killing her husband and then put Mr Chatzidimitriou on the phone. He made the call on his mobile phone. About a month or a couple of months after he picked up the motors he saw Mr Chatzidimitriou at Lansell Plaza. The next time Mr Brown met the applicant she told him that she had recently met with Mr Chatzidimitriou at the lake in Bendigo and that he had "frisked" her before the conversation to make sure he wasn't being recorded. She had told him that they had come to some agreement but did not say what was actually discussed. Mr Brown went to the applicant's home on a couple of occasions. He also saw her a couple of times when they had coffee at Lansell Plaza. On one of these occasions she told Mr Brown that she had paid Mr Chatzidimitriou $10,000.00 as a deposit to kill her husband. This conversation was at Lansell Plaza, possibly three months before the death of the deceased.
On 28 November 1996, Mr Brown was at home in Eaglehawk until 7.30 pm. He then drove to an Alcoholics Anonymous meeting in Castlemaine. On that night there were about 15 to 20 people at the meeting. He arrived just before 8. 00 p.m. The meeting finished at 9.30 p.m. and he left at 9.40 p.m. He then drove back home and arrived home a bit after 10.00 p.m. He later stated that he stopped at a service station in Golden Square on the way home because he was running out of petrol. He noted that his car ran on petrol and gas, and recalled going to a service station near the St. John's Ambulance. He originally intended to get gas but could not as they did not have it connected. He then pumped up his tyres before going to speak to the console operator. He then bought a drink, and continued to drive home. He arrived home and went to bed at 11.00 p.m. In cross-examination he conceded that he had returned to the Service Station to create an alibi, but stated that he actually had been there and that it was not a false alibi. He agreed that he wrote a note to the console operator but did not write the names of the Homicide Squad detectives on the note. Mr H. F. Mitchell confirmed that Mr Brown attended the Alcoholics Anonymous meeting on 28 November 1996. He first saw him at approximately 7.45 p.m. and Mr Brown left at approximately 9.45 p.m. In cross-examination he confirmed that Mr Brown was a regular attender at the meeting. Ms T. A. Morgan was a console operator who worked at the Ampol Road Pantry, Golden Square. She stated that on 12 January 1997 Mr Brown came into the premises and began asking questions about 28 November 1996. He was trying to establish who was working on that night. He then gave her a note to give to her boss. He told her that he had filled his car with LPG and she told him that they did not sell LPG. He then took the first note he had given her and wrote another note. He then left and she took a note of his registration number. He returned a short while later asked for the second note and handed her a further note. She identified the note that had been tendered as exhibit 6 as the final version of the note. She stated that she had written the words "very important" at the top of the note.
On Friday 29 November 1996, Mr Brown telephoned the applicant because he had an argument with his ex-wife and wanted to talk to her. She then told him that the deceased had not returned home that night and she was very upset. After he had spoken to the applicant he was listening to a scanner in his bedroom and he heard that police had found a body in the Cairn Curran Reservoir. He then went to see the applicant. When he arrived she told him that the police had been there because she had reported her husband missing. In cross‑examination Mr Brown agreed that she was worried about her husband, and was crying and very upset. While he was there the police returned and told her that they had found a body in Cairn Curran Reservoir and they wanted her to go and identify the body to see if it was Ian Freeman. Mr Brown stated that he asked Senior Constable Holland if it was an accident or if they were treating it as suicide. Senior Constable Holland replied that they were treating it as suicide at the time. Mr Brown then accompanied her to the mortuary. He noted that she was upset and crying. When she saw the deceased's body she just broke down and cried. On the way home she asked Mr Brown if there was going to be a post mortem, and he told her that he would call Mr N. Britten. He then went around and saw Mr Britten at his house and called the applicant so that Mr Britten could explain the standard procedure to her. In cross‑examination he stated that even though he was suspicious during his dealings with the applicant on that day, he could not be sure if he actually said anything to her about the arrangement that had been made through him. Later in cross‑examination he agreed that it would be fair to assume that he thought the deceased had committed suicide until he read about the investigation in the Bendigo Advertiser.
On another occasion the applicant telephoned Mr Brown and told him that Homicide detectives had been around to see her. He asked her if he was involved in the murder of the deceased or not, and she said, "No, it had nothing to do with you at all". In fact Mr Brown was interviewed by Homicide officers shortly thereafter. On 23 December 1996 Brown was introduced to a person whom he knew as "Dave" by Ms McInnes. Dave was in fact an undercover police officer, but Mr Brown thought that he was an associate of McInnes who could help him. After he met Dave, they went to see the applicant at the Lotto outlet. Dave was wearing a covert tape recorder which recorded conversation between the applicant, Mr Brown and Dave. Mr Brown also utilised a covert tape recorder when speaking to the applicant and Mr Chatzidimitriou.
Mr Brown conceded that due to excessive drinking in his past he had done damage to his memory. He also conceded that sometimes whilst he had been under oath he had not been able to remember what he did the day before. He conceded that at times his memory and concentration were poor, his thinking would become confused and he would become agitated. He was prescribed a large number of drugs and the doctor would be changing them all the time. He conceded that he was prescribed Serepax by a doctor in Melbourne and Valium by another doctor, and that one doctor told him she thought he was abusing the drugs. He also admitted that he provided McInnes with Serepax and Valium that he had been prescribed.
Dr Olaf Drummer, a toxicologist and pharmocologist, was asked to comment on the following drugs that Brown had admitted to taking in 1996 during the previous trial and he stated as follows:
(a) Serepax: the brand name for Oxazepam which is primarily prescribed for the treatment of anxiety and is a minor tranquilliser. Its most common use is for people who are having difficulty sleeping. The sedative effect of the drug can affect concentration and slow down brain activity. An uncommon side effect associated with abuse is confusion and bizarre behaviour;
(b) Valium: in same class of drugs as Serepax. It would be uncommon and dangerous to prescribe both Valium and Serepax at the same time;
(c) Pethidine: a strong analgesic with similar effects to morphine. It is a narcotic, and can induce sleep and cloud the mind in an abuse setting;
(d) Oxycodone: an opiate in the same class as morphine and Pethidine.
He noted that it would be unwise to prescribe all four types of medication together, which could cause depression of the central nervous system and induce a higher risk of side effects or even overdose. He stated that Prozac was an antidepressant and is a relatively safe drug. In re‑examination he noted that the effects of these drugs would depend upon the dosage and vary from individual to individual. Many people take these medications and remain effectively employed.
The movements of Mr Chatzidimitriou and his enrichment
Theodore Chatzidimitriou, Mr Chatzidimitriou's son, observed his father's vehicle at Lansell Plaza Shopping Centre, Bendigo around 8.30 p.m. on a Wednesday or Thursday in late November 1996. He saw and spoke to his father there at that time, when the shopping centre was about to close. Ms L. Morrison who was with Theodore Chatzidimitriou stated that the date of the casual meeting was 28 November 1996. Another son, Matthew, gave evidence that he was at home on 28 November 1996 when he received a mobile phone call from his father some time after 10.00 p.m. A Telstra employee, Mr S. Wilson, formerly manager of its mobile network security group, gave evidence of coverage provided by mobile telephone ground stations located around Cairn Curran Reservoir and of tracing of mobile telephone calls. He produced two computer generated prediction charts purporting to set out the areas covered by each of the ground stations. Senior Constable Kurzke made a number of mobile test calls in locations near Cairn Curran on 15 and 16 September 1998. Mr Wilson gave evidence of his conclusions as to which ground stations would carry such calls. He gave evidence from telephone records of three telephone calls from Mr Chatzidimitriou's mobile phone in the early hours of 29 November 1996. The first was at 12 minutes past midnight, through the base station at Maryborough, to his home phone. The second was at 56 minutes past midnight and the third less than a minute later, both to Matthew Chatzidimitriou's mobile phone. Those two calls went through the base station at Mt. Macedon which has isolated receptor stations near the Cairn Curran Reservoir, consistent with the applicant being in the general area of the reservoir at those times.
Theodore Chatzidimitriou gave evidence that on an occasion after 7 April 1997 he was at his father's house. He looked behind an airconditioner and saw a sunglasses case which contained a bundle of $100 notes. The notes were stowed flat and there were as many notes as would fit in the glasses case. He only had a quick look. A teacher, Mr K. J. McKimmie gave evidence that he sold a Mitsubishi Pajero four wheel drive vehicle to Mr Chatzidimitriou in October 1996 on a deposit of $500 with the balance of $8,000 paid in cash upon delivery of the vehicle. Ms Morrison said the vehicle was purchased not long before Christmas 1996. In November 1996 Mr S. McCormack sold Mr Chatzidimitriou a Holden Jackaroo for $2,000 which was paid in cash. At the time of payment Mr Chatzidimitriou had a large sum of cash on his person and still had at least $2,000 when he left. Mr B. Mitchell sold Mr Chatzidimitriou a caravan in October 1997 for $1,700 which was paid in cash. In February 1995 Mr Chatzidimitriou had sold some excess property at auction and had received $4,774 for it and much remained unsold. In October 1994 an auction had been held at his property which realised $15,000 in cash.
On 10 August 1998 Mr Chatzidimitriou's home was searched by police and a letter from the applicant was found. It was tendered as exhibit "S". It concluded with these words:
"Please say little and no deals. If I can my trial will be first and suicide will be proved. I'm strong and so must you be. My lips are sealed forever."
Telephone intercepts
Authorised telephone intercepts were placed on the telephone services of the applicant, Mr Chatzidimitriou and Mr Brown. Transcripts of a number of telephone conversations between the applicant and Mr Chatzidimitriou were tendered. On 23 December 1996 at 9.23 a.m., Mr Brown telephoned the applicant at the Agency. In that conversation the applicant stated, "they've got nothing" and "they've got absolutely zilch" in the context of the investigation into her husband's death. That night the applicant at 8.31 p.m. telephoned Mr Chatzidimitriou and commenced by saying, "We had a Merry Christmas phone call from our friend, Mr B….. I need to tell you about it." She arranged to meet Mr Chatzidimitriou at 10.00 p.m. that night at the Bendigo fountain. There were numerous guarded and opaque discussions which it is unnecessary to detail here.
After the meeting between Mr Brown and Mr Chatzidimitriou at his workshop at Wandong, there was frequent contact by Mr Chatzidimitriou with the applicant, by telephone: on 12 September 1996 (twice), 15 September, 17 September, 25 October (twice), 27 October, 12 November and 21 November (twice); and after the death of the deceased, 2 December (twice), 21 December, 23 December and 1 December 1996.
Detective Senior Constable Clifford, of the Homicide Squad, gave evidence that in company with Detective Sergeant Shallies he spoke with the applicant at the Agency at Lansell Plaza Bendigo on 17 December 1996. He informed her that they were from the Homicide Squad and were looking into the death of her husband. The officer enquired of various background matters concerning the deceased. The applicant then was asked if she was aware of any injuries the deceased may have had and she replied that he had spent a lot of time gardening recently and that he had marks down his arms. She could not recall if they were cuts or bruises. She also said the deceased had previously fallen asleep while driving his car at night.
Detective Sergeant Shallies, the informant, produced a silent video of a meeting between the applicant and Mr Chatzidimitriou on 13 January 1997 at the Bendigo ornamental lake. In cross-examination he stated that the applicant had no "criminal history".
As I said earlier, the applicant stood mute. No oral evidence was called on her behalf.
Assessment
Plainly the prosecution case was a strong one. The circumstances of the deceased's car and body betokened homicide, not suicide. The car was in shallow water, in forward gear, with the ignition on, with the locking knobs missing, with the deceased's driving glasses under the rear split seat and with his wallet loose on the front floor. The body of the deceased showed no alcohol or drugs, there were petechial haemorrhages in the eyes, and marks on the wrists. The considered evidence of a distinguished pathologist, Professor Cordner, was damaging to the defence hypothesis of suicide. The deceased had completed a successful work assessment and was looking forward to a rapprochement with the children of his first marriage. The applicant had a motive and demonstrated planning. Mr Brown's evidence directly implicated the applicant. The applicant had frequent contact with Mr Chatzidimitriou. On the fatal night, Mr Chatzidimitriou was seen in the vicinity of the deceased's workplace at Lansell Plaza. Just after midnight (the first hour of 29 November 1996) three phone calls were made on Mr Chatzidimitriou's mobile phone, at 12 minutes past midnight and 56 minutes past midnight, consistent with movement in the relevant area. After the death of the deceased the applicant wrote to Mr Chatzidimitriou: "My lips are sealed forever." They were indeed. She stood mute at her trial.
Counsel for the applicant submitted that "the Crown case relied entirely on the evidence of Ian Richard Brown to establish (a) that the deceased was murdered by Mr Chatzidimitriou, and (b) that the Applicant had procured Mr Chatzidimitriou to murder the deceased." It did not. As has been outlined, there was a significant amount of evidence from various sources implicating the applicant in the death of the deceased. The applicant's counsel understandably criticised the nature and quality of Mr Brown's evidence. But the jury had a full opportunity of assessing him, and the learned trial judge gave the jury a proper and full direction of law as to the scrupulous care to be applied to his evidence as an uncorroborated accomplice. No exception is taken to His Honour's charge nor could there be by the applicant. I do not pause to analyse whether in truth there was corroboration of Mr Brown. It is sufficient to proceed upon the basis of the learned trial judge's direction to the jury. Counsel submitted that the mobile phone test calls were self-serving as they were effected from the very area in question rather than from elsewhere, and that the telephone intercepts, tape recordings and correspondence were equivocal and vague as was the evidence of Mr Chatzidimitriou's purported enrichment. All these are legitimate jury arguments which doubtless were put to the jury. The Court’s task consonant with the principles enunciated in M. v. The Queen is to exercise its own judgment on the evidence to ascertain whether it was open to the jury properly instructed to find the applicant guilty. The jury was properly instructed. It was amply open to the jury properly to find the applicant guilty of murder.
Conclusion
Accordingly, the application for leave to appeal against conviction should be dismissed.
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