R v Lewis

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 191 of 1998

THE QUEEN

EDWIN ANDREW LEWIS

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JUDGES:	WINNEKE, P., TADGELL, J.A. and HEDIGAN, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	27 and 28 March 2000
DATE OF JUDGMENT:	9 August 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 140

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Criminal law – Murder – Evidence of confessional statements to undercover police operative – Undercover police operative introduced into the cell of the accused following charge of murder being preferred and whilst accused awaiting extradition to State of jurisdiction – Whether trial judge should have excluded confessional evidence in accordance with residual discretion – R. v. Swaffield/Pavic (1998) 192 C.L.R. 159 considered.

Criminal law – Practice and procedure – Empanelment of jury – Judge taking excuses from panel members in writing – Whether breach of Juries Act 1967 (Vic.), s.13(2).

Criminal law – Directions to jury – Lies amounting to consciousness of guilt – Whether judge entitled to direct jury that certain alleged lies were capable of amounting to consciousness of guilt.

Criminal law – Directions by judge as to use which jury can make of confessional evidence – Whether judge bound to direct jury that such evidence can only be used if satisfied that such confessions have been made and/or are a true acknowledgment of guilt.

Criminal law – Discretion to discharge jury – Judge commenting upon undue length of counsel’s final address and repetitive nature of comments therein – Respective obligations of counsel and judge considered.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan Q.C. and Ms. M. Sexton	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr. O.P. Holdenson Q.C. and Ms. J.A. Dixon	Victoria Legal Aid

WINNEKE, P.,
TADGELL, J.A.,
HEDIGAN, A.J.A.:

Background

In May 1998, the applicant, Edwin Andrew Lewis, was presented for trial in the Supreme Court on two counts of murder - one of murdering Dennis Richard Paul Higgins (“Mr. Higgins”) and the other of murdering Mr. Higgins’ wife Carmel Margarita Higgins (“Mrs. Higgins”). Each murder was alleged to have occurred on 21 April 1995 at premises owned and occupied by Mr. and Mrs. Higgins at 15 Deanswood Road, Forest Hill. The presentment also alleged, as count 3, that, on the same day, the applicant stole certain personal belongings of Mr. Higgins and a further offence of stealing a Porsche motor vehicle belonging to Mrs. Higgins (count 4). The applicant pleaded not guilty to the murder counts, and to the count of theft alleged in count 3. He pleaded guilty to the theft of the motor car alleged in count 4.

After a trial lasting two months, the jury, on 14 July 1998, returned a verdict of not guilty of the murder of Mr. Higgins, but guilty of manslaughter; guilty of the murder of Mrs. Higgins; and guilty of the theft alleged in count 3. On 6 August 1998, the trial judge sentenced the applicant to ten years’ imprisonment for the manslaughter of Mr. Higgins (count 1), to 20 years’ imprisonment for the murder of Mrs. Higgins (count 2), to one month’s imprisonment for the theft alleged in count 3 and to 6 months’ imprisonment for the theft of the motor car. His Honour directed that 6 years of the sentence imposed on count 1 be served cumulatively upon the term of 20 years’ imprisonment imposed on count 2, thereby making a total effective sentence of 26 years’ imprisonment. He further directed the applicant to serve a minimum term of 21 years before being eligible for parole.

In the course of his charge to the jury, his Honour had directed them that it would be open on the evidence to find, at least in respect of the male deceased, that the Crown had not excluded the possibility that the killing was provoked and it is reasonable to infer that such direction explains the verdict on count 1.

The trial at which the applicant was convicted was the third trial at which a jury had been asked to consider a verdict in respect of the counts alleged against him. Trials in 1996 and 1997, conducted before Cummins, J., had resulted in disagreements. There were two further trials in those years during which the jury had been discharged prematurely for differing reasons.

Initially the applicant sought leave to appeal against both the convictions recorded and the sentences imposed. He has abandoned his application for leave to appeal against sentence and has pursued only his application for leave to appeal against the convictions. Initially his application was based upon eight stated grounds but, by leave of the Registrar granted on 2 July 1999, four more grounds were added. It should, perhaps, be noted that the hearing of the application was delayed pending the determination by the High Court of the appeal in Katsuno v. R.[1] which involved a consideration of matters raised in one of the applicant’s grounds of appeal, concerning the manner in which the jury was selected (ground 10). Having regard to the decision of the High Court in the Katsuno case, that ground has not been strenuously pressed on the hearing of the appeal. However, a further ground relating to the manner in which the judge took excuses from members of the jury panel, has been argued (ground 9).
[1](1999) 166 A.L.R. 159

Thus at the hearing of this application counsel for the applicant made no submissions in support of grounds 1, 3, 4, 6 and 7 of the amended grounds of appeal and confined themselves to the remaining grounds. Before turning to the grounds argued, it is necessary to say something about the facts, disclosed in evidence at the trial, insofar as they bear upon those grounds. Many, but not all, of those facts are taken from a “summary of evidence” prepared for the Court, and agreed by the parties to be accurate.

The Facts

Early in the morning of Tuesday 25 April 1995, police exhumed the bodies of Mr. and Mrs. Higgins from a grave in which they had been buried in the pool-side garden at their Deanswood Road premises. The bodies were wrapped in black plastic sheeting and the hands and feet of Mrs. Higgins were bound with “ducting tape”. Examination quickly revealed that each deceased had been stabbed a number of times; Mr. Higgins in the chest and back; and Mrs. Higgins in the chest and neck. Mrs. Higgins had also suffered a deep knife wound to her right thumb. The size of the wounds indicated that the murder weapon was a knife of considerable size and length.

Mr. and Mrs. Higgins had one child of their union, Amanda Higgins (“Amanda”), who was 25 years of age in 1995. Each, however, had been previously married and there were children of those marriages. John Mitchell, Carolyne Mitchell and Kerry Spiteri were children of Mrs. Higgins; Paul and Mark Higgins were children of Mr. Higgins.

It was on Monday 24 April 1995 that Amanda Higgins, John Mitchell and Kerry Spiteri had first alerted police of their concern for their missing parents. Police met them at the Deanswood Road premises, which were securely locked. Inspection of the garage revealed that Mrs. Higgins’ Porsche motor vehicle was missing but that Mr. Higgins’ Mercedes Benz was still present. Forced entry into the premises, and a quick inspection thereof, suggested that something more sinister may have befallen the couple than a voluntary “weekend holiday”. Although there appeared to have been determined efforts to clean carpets, walls and doors in the vicinity of the laundry and hall, there were traces of blood capable of being detected by the trained eye. Information obtained by the police from the family members led to a suspicion that the applicant may have been involved in the disappearance of Mr. and Mrs. Higgins; and an alert was sent to police in New South Wales and Queensland to which areas it was believed the applicant may have been heading. The applicant was ultimately apprehended in Surfer’s Paradise in the morning of 26 April. When apprehended, he was staying in a room at the “Hi-Ho Apartments”. Queensland police received a warrant to search the applicant’s apartment and a number of items were seized. Although no knife was found, he had in his possession some rubber straps which subsequent information revealed came with a “New Sun Fish” diving knife which the applicant had purchased on the preceding Wednesday (19 April) at a sports store in Forest Hill. Police also found in the applicant’s possession clothing and personal effects belonging to Mr. Higgins. Later in the day, police located Mrs. Higgins’ Porsche motor vehicle concealed in the carpark of the Aegean Apartments, which were some distance from where the applicant was staying. The number plates of the Porsche had been removed.

The applicant was conveyed to the Broadbeach Police complex to await the arrival of members of the Homicide Squad from Melbourne. Senior Sergeant Maher and Senior Detective Harrison arrived later in the day and commenced an interview with the applicant. The interview was video and tape recorded and, during the course of it, the applicant confessed to the killings in circumstances to which we will hereafter refer. It is readily apparent from their verdicts that the jury acted upon the content of that confession.

There was no issue at the trial that the killings were committed at the Deanswood Road premises in the early afternoon of Friday, 21 April 1995, which was the wedding anniversary of the Higgins. Nor was there any issue that the murder weapon was the diving knife purchased by the applicant on Wednesday, 19 April. Indeed the only issue at the trial was whether it was the applicant who had killed the deceased, as the Crown alleged; or whether it was Amanda who killed her parents, as the applicant alleged.

The applicant, who was aged 32 in 1995, met Amanda early in that year. It was the Crown’s contention that the applicant was a confidence trickster and a plausible liar. It was further alleged that he was much attracted to the trappings of wealth, and that the “trappings” displayed by the Higgins attracted him to them. The contention that he was a plausible liar was supported by his antecedents, which were ventilated during the trial. Indeed, in his own defence, he asserted that he had used his skills as such to embroider a false confession to the Police when apprehended at Broadbeach.

The applicant had come to Australia from New Zealand in 1990. He was part Maori and distinctive in appearance. In the early years of the 1990’s he was employed by a number of organizations as a salesman. He was, however, interested in the fitness industry and, in 1994, he became a part owner of a fitness centre – known as “Best Results Fitness Centre” – in Forest Hill. Not long after the business had begun, the applicant was declared bankrupt for non-payment of debts, but continued to work as an instructor at the gym. It was in that capacity that he met Mrs. Higgins and Amanda, who were members of the fitness centre. The applicant and Amanda were attracted to one another and, within a short time, were living together. It would seem that Mrs. Higgins was well disposed towards the applicant; but not so Mr. Higgins who was said to have intensely disliked and distrusted him. Part of the lack of trust stemmed, so the evidence suggested, from Amanda’s own background.

Amanda had a troubled history. She had left home in her mid-teens, rebelling against her parents’ authority. She drifted into bad company, abused drugs and alcohol, worked at massage parlours as a prostitute and was convicted of petty crimes. She lost contact with her parents, lived in Adelaide between 1987 and 1989 following which she went to Perth where she lived with a known drug user. She was finally reclaimed by her parents in October 1994. She was emaciated and in urgent need of rehabilitation. Her parents put her into the care of their family doctor - Dr. Pellegrini at Blackburn. He, in turn, made arrangements for her admission to the Warburton Clinic. Towards the end of 1994, she returned to live with her parents, seemingly more robust physically and mentally. Her mother enticed her to join the Best Results Fitness Centre and, before long, she was keeping company with the applicant. Their companionship, so shortly after Amanda’s first steps towards rehabilitation, was - so the Crown asserted – one of the reasons for Mr. Higgins’ lack of trust in the applicant. He clearly made it known that he was displeased that the applicant was driving Amanda’s car – a Mitsubishi sedan which Mr. and Mrs. Higgins had purchased for Amanda’s birthday in March 1995. Amanda allowed the applicant to use the car. He was, by this time, a salesman for “Microtag” which sold security systems to retail premises.

At the end of March 1995, Amanda and the applicant commenced to rent premises at 1 Little Kent Street, Richmond, using a loan secured on Amanda’s car for both bond and rent. The applicant had his heart set on moving to Queensland where, so he said, he had organized for himself a position as a gym instructor at a business being conducted in Noosa, where his sister lived. He had travelled to Queensland for a substantial portion of March 1995, where he had apparently come into contact with a Michael Woodbine and a Colin Twilley; two people whom the Crown described as “petty crooks”. Towards the end of March, Woodbine offered to drive the applicant to Melbourne in a Mazda RX5 which was apparently a stolen car. A police chase had ensued over some distance near Balranald in New South Wales, following which Woodbine escaped, but the applicant was apprehended. The applicant was released on bail to appear at the Balranald court on 19 April 1995. Of course, he did not appear. When released, he called Amanda on his mobile phone, which was constantly in his possession; and she drove to New South Wales to collect him.

There was a difference of view between the applicant and Amanda as to the state of their relationship as the month of April wore on. The applicant claimed that their relationship was strong, that Amanda had told him in March that she was pregnant with their child and that they were both looking forward to making a “new life” in Queensland. The only concern he had was that Amanda was turning to drugs, both marijuana and heroin; something which – so he said - he did not like and could not condone. On the other hand Amanda said that she had lost faith in the applicant; had decided that she would not go to Queensland with him; and that she was not pregnant with his child (as was the fact) and did not tell him that she was. She said that she was feeling increasingly “used” by the applicant and knew that he was keeping company with another woman - Allyson Morgan.

It was against this background that the events of 18 April and the following days fell to be considered by the jury. Many of these events can be placed - as to dates, times and places – by mobile telephone records produced at the trial by representatives of Telstra. There were differences between the Crown witnesses and the applicant as to the content of these calls, but what follows is a resume of the evidence, led by the Crown, which the jury was entitled to accept.

On Tuesday 18 April, the applicant rang Woodbine in Queensland to tell him that he (the applicant) would soon be acquiring a new Porsche motor vehicle and some credit cards. He asked Woodbine whether he knew of anyone who would pay $20,000 for the car. On the same day, according to Amanda, the applicant said that he had been to see her parents. He told her that Mr. Higgins had been diagnosed with prostate cancer and that she “should not be surprised if he (that is, Mr. Higgins) disappears without telling anyone”.

On Wednesday, 19 April, the applicant spent some time with Allyson Morgan at her home near Forest Hill. During the day he went to a sports store at the Forest Hill shopping centre. He purchased the “diving knife” which eventually became the murder weapon. In his own evidence he conceded that he had bought the knife but had intended to use it for “fishing and diving” purposes in Queensland. On the same day Amanda had lunch with her mother and Kerry Spiteri. There was discussion about the health of Mr. Higgins. In the evening the applicant returned to Kent Street with the knife. He said he was going out with “friends” and would leave the knife with her “for protection”. He put it under the bed. It was contained in the manufacturer’s box, complete with rubber clips used for attaching it to the driver’s suit.

On Thursday, 20 April, the applicant had Amanda’s car during the morning. He returned to Kent Street at about lunch-time, asking Amanda whether he could have the car the following day to go to the “Microtag” premises in St. Kida. Amanda said that he could take it, provided that he returned it by “late morning”, so that she could collect a birthday cake which she was proposing to take to Carolyne Mitchell’s birthday dinner on the Friday evening. She also told him that she had an appointment with Dr Pelligrini at 5 p.m. on the Friday afternoon., Telephone records disclosed that the applicant had contacted Woodbine on Thursday afternoon. Woodbine said that the applicant had asked him whether he had a “buyer” for the Porsche. He also said that he had told the applicant that he would contact a used car dealer, one Michael Simeon, whom he knew in Sydney. The telephone records disclosed that calls were placed from Woodbine’s mobile phone in Queensland to Simeon’s number in Sydney on Thursday.

On Friday 21 April – the day on which Mr. and Mrs. Higgins were killed - arrangements had been made for a party to be held in celebration of Carolyne Mitchell’s birthday at an Indian Restaurant in South Yarra. The applicant and Amanda were expected to attend. In accordance with the arrangements which he had made with Amanda on the preceding day, the applicant left the flat at Little Kent Street in Amanda’s car at about 9 a.m. As we have stated, he was expected to return the car by lunch-time so that Amanda could collect the birthday cake and then attend Dr. Pellegrini’s surgery in Blackburn by 5 p.m. These arrangements were not met. At about 10 a.m. there was a phone call from the applicant’s mobile phone to the Higgins’ number at Deanswood Road. Some three-quarters of an hour later, at about 10.45 a.m., there was a lengthy call, of some 13 minutes duration, from the Higgins’ home to the applicant’s phone. It was not in dispute that this was a conversation between Mrs. Higgins and the applicant. The next known event occurred at about 11.30 a.m. when Dean Cresswell, a builder who frequently performed building and carpentry work at 15 Deanswood Road, arrived at the property with an invoice which he had prepared for Mr. Higgins. He said that he had spoken with Mr. Higgins at the front door. Mr. Higgins took the invoice and told him to wait whilst he wrote a cheque. Whilst he was waiting, Cresswell said he could hear Mrs. Higgins talking to a person who was not Mr. Higgins. Cresswell received his cheque and left. He was the last person – other than the killer – to see Mr. Higgins alive.

Shortly after 12.30 p.m. on 21 April, and in accordance with a previous arrangement, Mrs. Higgins met her friend, Judith Bolton, for lunch at a small restaurant in Blackburn. Mrs. Bolton said that Mrs. Higgins, who was upset, had told her the applicant had been at Deanswood Road discussing, with her and her husband, his relationship with Amanda. She said that the applicant became emotional, that she had endeavoured to console him, but that Mr. Higgins had become angry with her. Mrs. Higgins left the restaurant after about an hour, saying that she was going to post a birthday card to Carolyne and then go straight home. This was the last time she was seen alive.

At 2.26 in the afternoon of 21 April, Stuart Hall, a taxi driver, received a call to attend at 15 Deanswood Road. He reversed his taxi into the driveway of the premises and sounded the horn. Shortly after, the applicant emerged wearing light-coloured clothing and carrying a camel coloured overcoat. He directed Hall to take him to Box Hill, saying he was in a hurry. Hall left the premises at about 2.35 p.m. Shortly after they left, the applicant instructed him to return. The applicant went through a gate to the back of the house and came back to the taxi 5 to 10 minutes later. Hall then drove him to Box Hill and turned the meter off at 2.52 p.m. At 3.12 p.m., the Telstra records showed that a call had been made from the applicant’s mobile phone to the number of Woodbine in Queensland. Woodbine said that the applicant told him that he should make arrangements to travel to Sydney, where they would meet the following day. This was the first call to have been made from the applicant’s mobile phone for three hours. The Crown case was that, during this period, he had murdered both Mr. and Mrs. Higgins.

In the meantime, Amanda was waiting at Little Kent Street for her car. There was no telephone at the flat and, at about noon, she had gone to a “7/11” store nearby to make a call to the applicant, but was unable to raise him on his mobile phone. She then rang her sister, Kerry Spiteri, told her that the applicant had not come home, and asked her to collect the birthday cake. She gave evidence that the applicant had not returned until after 3 p.m., saying that he had been “tied up” at Microtag. She then set off for her appointment with Dr. Pellegrini, having rung her sister Carolyne to tell her that Kerry would be collecting the cake, and that the applicant would not be coming to dinner with them that night because he was “going out with friends including Allyson Morgan”. She then drove to Dr. Pellegrini’s surgery where she consulted with him for some 30 minutes. Pellegrini said that she appeared relaxed but “down in the dumps” which he attributed to her “break-up” with the applicant. Amanda drove back to Little Kent Street to find that the applicant had already departed. She left a note for him which read:

“came back at 6.00, I guess you’ve already gone, have fun, see you later, love Amanda.”

She then drove to Carolyne’s place in South Yarra and was there when the applicant rang at about 6.40 p.m. The applicant spoke to Carolyne, wished her a “happy birthday” and then spoke to Amanda. She said that he had told her that his sister in Noosa had purchased air tickets to Queensland for him and that he would be leaving early the following morning. He said that he would not be seeing her again, but hoped that she would change her mind and follow him to Queensland at a later date. Thereafter Amanda, her sisters and a number of other people went to the restaurant in South Yarra where Amanda stayed for a number of hours, leaving at approximately 10.30 p.m.

At approximately 6.10 p.m. on the evening of 21 April the applicant entered McEwan’s hardware store in Bourke Street Melbourne where he purchased a quantity of builder’s “poly-tarp” black plastic sheeting, ducting tape and a spade. He was issued with a McEwan’s recipt for these items. This receipt was later found on the floor inside the back-door of the Deanswood Road premises. The applicant admitted, pursuant to the procedure provided by s.149A of the Evidence Act 1958 that, at about 7 p.m., he had taken a taxi to Deanswood Road. The Crown case was, and it was ultimately not in contest, that the items purchased by the applicant from McEwans were used in disposing of the bodies of the Higgins. Later in the evening, at times said to be between approximately 8.30 p.m. and 10 p.m., neighbours of the Deanswood Road premises said that they had heard the Higgins’ dogs barking and had seen lights on in the pool area of 15 Deanswood Road.

Between 7.45 p.m. and 8 p.m. on the night of 21 April, the Telstra records showed that two calls were placed from Queensland to the applicant’s mobile phone. Woodbine said that he had made the calls whilst he was at a way-side stop on a bus journey from Brisbane to Sydney. He said that he arranged to meet the applicant at the bus station at Darlinghurst in Sydney on the following day. The applicant told him that he had a credit card which they would be able to use in Sydney.

When Amanda returned to Little Kent Street at about 11 p.m. on 21 April, she noticed that the applicant’s belongings had been packed and ready to be taken away. She went to bed, presuming that the applicant would return to collect them. At 7 a.m. on the following morning, Saturday 22nd April, the applicant approached a taxi-driver at the Melbourne Airport and requested the driver to take him to Little Kent Street. When they arrived there, he asked him to wait. Amanda said that it was about 8.30 a.m. when the applicant knocked on the door. He told her that he had spent the night at the Tunnel night club in the city. He collected his belongings and told Amanda that he was “in a hurry, because his flight was leaving at 10.30 a.m.”. The taxi driver took the applicant back to the airport where he was instructed to drive into the short term car park. He dropped the applicant off next to a dark blue Porsche motor vehicle. This was Mrs. Higgins’ vehicle which, so the Crown alleged, had been earlier driven by the applicant from Deanswood Road to the airport so as to avoid having to explain to Amanda why he was in possession of her mother’s car.

The applicant did not take a flight to Queensland. He drove the Porsche up the Hume Highway to Sydney. On the way he made a number of calls from his mobile phone. At 9.12 a.m. he called Allyson Morgan to tell her that he was going to Noosa and that he was leaving Amanda. He also made calls to the Deanswood Road premises, which the Crown described as “callous covering calls”. One such message left on the answering machine at Deanswood Road stated:

“Hi Mr. Higgins, this is Eddie. I’m just ringing to say goodbye, I should, hopefully, see you soon. Look after Amanda for me, will you? I know you will. If you need to call me, call me on 018 576 527, but take care of yourselves. And, Mrs. Higgins, thank you for everything that you’ve done for me.”

In the meantime, Woodbine had arrived at the bus depot in Sydney. He rang the applicant from a mobile telephone. The applicant told him that he was in a taxi travelling to the Melbourne Airport to pick up the car. He said he would meet Woodbine in Sydney later that day. He gave Woodbine a credit card number and asked Woodbine to use it to book the applicant into a “five star” hotel. Woodbine made a booking for a room in the Sheraton Hotel in the name of “Paul Higgins”, using the credit card number of Mr. Higgins. Later in the day of 22 April Woodbine rang the applicant again, expressing his anger that the applicant was not in Sydney as arranged and telling him that he was proposing to get on the next bus back to Queensland. The applicant told him not to do that, that he had had a “hard night partying with some girls from the gym” and that he had “something to tell him”, which he could not disclose over the telephone. When pressed, the applicant said “I bumped off Amanda’s parents”. Woodbine said that he had related this to Twilley, who was in Sydney with him, and Twilley had told him that the applicant was “talking big” and to take no notice. Thereafter Twilley arranged accommodation for himself and Woodbine in the Gazebo Hotel in King’s Cross.

In the meantime, Amanda was trying to contact her parents at Deanswood Road. At about 10 a.m. she went to Carolyne’s flat in South Yarra and used her telephone. On each occasion she was met with the “answering service”. Carolyne said that Amanda appeared angry with the applicant, stating that she and the applicant had planned to have lunch with Mrs. Higgins, but that he had left early that day, having spent the “entire night” at a night club. Carolyne had to leave her apartment early on the Saturday because she was booked on a flight to Sydney at 11.30 a.m.

Events in Sydney on 22 and 23 April 1995

At approximately 11 p.m. on the night of Saturday 22 April, the applicant rang Woodbine at the Gazebo Motel. He said he had “just arrived”. Woodbine met him in the foyer and saw the Porsche motor car. The applicant then drove him to the Nikko Hotel (formerly known as the Landmark Hotel) in Macleay Street, Potts Point. They arrived there at about 11.20 p.m. Their arrival was recorded by the hotel’s security camera and the recordings were tendered at the trial through the witness Pinto, the hotel porter. The applicant spoke to the night receptionist and asked for a reservation. He had no identification but produced a roll of $50 and $100 notes and offered $1,000 in cash. She accepted $760 to cover two nights’ accommodation plus deposit. The applicant gave his name and address as “James Kerry, Wellington, N.Z.”. Shortly after, he rang the porter and asked him to bring the car up again and to assist in bringing some of his luggage to the room. The video recording shows the applicant wearing a striped shirt belonging to Mr. Higgins. Thereafter the applicant and Woodbine went to the “Golden Apple” Escort Agency at Victoria Street, Potts Point, where they collected two prostitutes and drove them back to the Nikko hotel. They paid for the prostitutes using Mr. Higgins’ credit card. Having “re-delivered” the prostitutes at about 2.30 a.m. on the 23 April, the applicant returned to his room and made another call to Deanswood Road. In part, the message left on the answering machine at 3.55 a.m. was:

“Hello, it’s Eddie. I’m … trying to get hold of Amanda. Sweetie, if you’re there give me a call … Mrs. Higgins, hi!; if you’re there give me a call; just let me know what’s going on. See if Amanda is around. I can’t seem to get hold of her anywhere.”

On Sunday 23 April, the applicant arranged to meet Woodbine and Twilley at the Court House hotel. They spent part of the day shopping in Oxford Street and making purchases at the “Guys & Dolls” clothing shop on the credit of Mr. Higgins’ card. By coincidence the applicant saw Carolyne in a coffee shop in Oxford Street. He went in and spoke to her. She asked the applicant where he was staying; he said he “could not remember”. He said he was “in a hurry”; he had an appointment with someone named “Colin”. He asked her “not to tell Amanda that she had seen him”. He later met with Woodbine and Twilley in the Court House hotel. In the course of their conversation, so Woodbine said, Twilley had asked the applicant whether he had killed Amanda’s parents. Twilley said that he recalled the applicant say that he had “killed two people”. Woodbine said that the applicant had told Twilley that he ”had killed them”. Later in the evening the applicant took both Woodbine and Twilley back to the Nikko hotel to inspect the Porsche.

Events in Melbourne on 23 and 24 April

The members of the Higgins’ family became increasingly concerned about the inability to contact Mr. and Mrs. Higgins during the Saturday and Sunday. On the Sunday, Amanda went to the premises. They were locked and she had no key to enter. The newspapers were scattered around the front drive and the dogs appeared to be without water or food. She enlisted the aid of a Michael McLennan, a friend who lived in the area. From his place, she rang Deanswood Road but, again, all she received was the “answering machine”. She bought some dog food and, with McLennan, took it around to give to the dogs. They noticed that the house was fully secured and, by looking through the rear window to the garage, noticed that the Porsche was still missing. The garage itself was locked. She spoke to her sister, Kerry, on the Sunday night and agreed to meet her and John Mitchell on the following morning at the house. They met at Deanswood Road on the morning of 24 April. They were able to open a window at the rear of the house and thus gained entry. There were a number of things which aroused their suspicions. Although the house appeared undisturbed, the carpets were damp and smelled of “cleanser”; the clothes in the washing machine were damp; the coffee pot was still “half full”; and the gate to the swimming pool was open and the pool cleaner was switched on. None of these things was consistent with their parents’ habits. They also found the “McEwan’s receipt” inside the back door. Amanda rang a number of her parents’ friends, but none knew where the Higgins were. She called the applicant on his mobile phone. He told her “not to worry, they have probably gone away for the week-end”. He also told her that he had been in Sydney “selling cocaine for his friend, Colin”. Unsatisfied, they called the police. The local police came first but, after initial inquiries, they called the Homicide Squad. The suspicions of that Squad were aroused, particularly by what appeared to be freshly turned soil in the garden area around the pool. They forced entry into the separate bedrooms of Mr. and Mrs. Higgins, which were locked, and found that many of their clothes were missing. In the early hours of the morning of 25 April, they uncovered the bodies of Mr. and Mrs. Higgins in the garden by the pool. Their inquiries from the family members, as we have said, led them to suspect the applicant, and they alerted police both in Sydney and Brisbane. By 25 April 1995 they knew, from information received from Allyson Morgan, that he was staying at the Hi Ho Apartments in Surfers Paradise.

Movements of Applicant on Monday 24 April and Tuesday 25 April

On the morning of Monday 24 April, the applicant enquired of the receptionist at the Nikko Hotel whether he could change $US 20,000 into Australian currency. On the same day he and Woodbine drove to “A.S.A.P. Printing” at Liverpool, a business conducted by one Barry Davidson, an acquaintance of Woodbine. Woodbine asked him to print some false driver’s licences and passports. Davidson said he would if they procured some photographs. Woodbine and the applicant then obtained the photographs and the applicant took them back to Davidson. On the same day, they attended at Michael Simeon’s Car Yard and enquired whether they could have the Porsche transported by truck to Surfers Paradise. Simeon said that, if the car was stolen, it could be “traced back” to them. Woodbine said it was then arranged that the applicant would drive the car to Surfers Paradise and that he, Woodbine, would travel by bus. Woodbine arrived at the bus station at Surfers Paradise on the morning of 25 April. The applicant arrived some 20 minutes later. He checked into the Hi Ho Apartments at Broadbeach. Woodbine said that, shortly afterwards, the applicant asked him to go into the shopping centre at Surfers Paradise to change the American currency and to buy some jewellery with the credit cards. Woodbine said that, when he attempted to use Mr. Higgins’ credit card, there appeared to be a “check” on it and he abandoned the attempt. He then told the applicant that the card was no longer “effective”. According to Woodbine, the applicant became enraged, said that there were “thousands of dollars” in the account, and that “the old man was a tight old bastard who would not let him marry Amanda, because he did not want a ‘black baby’ in the family”. Woodbine said that the applicant had then told him that he had confronted Mr. Higgins in the lounge room and had stabbed him a couple of times in the back and a couple of times in the chest. The applicant said that Mr. Higgins had screamed “Why are you doing this?” and the applicant said that he had replied “because you’re a tight old bastard”. The applicant had further told him that he had dragged Mr. Higgins’ body into the toilet because he had heard Mrs. Higgins arriving home, and that he was fond of her and did not want to kill her. He said he had tried to persuade her to have a coffee and attempted to keep her in the kitchen. Because she said she needed to go to the toilet, he had no choice but to kill her too. Woodbine said that the applicant told him he had come up behind her with the knife and ”came over her shoulder” and stabbed her in the chest. He said that she had put her hand out to stop it and he had “nearly cut her thumb off”. He further said “you wouldn’t believe how easy it is, how easy a knife goes into a person’s body”; it is “like pushing a knife into warm butter”. He further told Woodbine that he had obtained tape and gloves and spent the night burying the bodies in the back yard and cleaning up the blood. He said it had taken him “ages” because he only had a small shovel. Woodbine also said that the applicant had then produced the knife from his overnight bag – a “diver’s knife, 25 cm-30 cm long, with a moulded plastic handle and a serration on the back of the blade”. Woodbine observed that the blade was a “rusty brownish colour”. He said that the applicant moved towards him with the knife and said: “I’m going to have to kill you now”. Woodbine said that he was terrified but tried to pacify the applicant by saying that the best he could do was to go back down to A.S.A.P. Printing to get the false identification, and that the applicant could then leave the country. The applicant appeared to calm down and said: “O.K., do that”. The applicant gave him sufficient money to buy a bus ticket. The applicant, he said, also gave him his grey overnight bag containing the knife and told him “to get rid of it”. Woodbine said that he left, caught a bus to Sydney and then fled to Perth where, ultimately, he made a statement to police.

The Applicant’s Arrest and Interview on 26 April

At about 6.00 a.m. on the 26 April, Broadbeach Police went to the Hi Ho Apartments and arrested the applicant. They had a warrant to search the apartment and they took possession of property, some of which belonged to the deceased. A video tape was taken of the search and the recording was tendered in evidence. There was no sign of the Porsche vehicle at the Hi Ho Apartments. They then conveyed the applicant to the Broadbeach Police Station where he was kept in custody to await the arrival of police from Victoria.

In the early afternoon of 26 April, Senior Detective Harrison and Senior Sergeant Maher, from the Victoria Police Homicide Squad, arrived. At 3.10 p.m. they commenced a formal video-tape recorded interview with the applicant. The applicant was duly cautioned and given an opportunity to contact his sister in Noosa and also to contact a legal adviser. He took advantage of each. The video recorded interview, and a transcript made from it, were tendered in evidence.

By the time the applicant had spoken to his sister and a solicitor, it was 4.15 p.m. The interview proceeded, in stages, until approximately 10.30 p.m. when the applicant was charged with the murders of Mr. and Mrs. Higgins and placed into custody pending an application on the following day for his extradition to Victoria. During the initial stages of the interview, the applicant made many statements inconsistent with the facts as the police knew them to be; as to his movements on Friday 21 April and Saturday 22 April; as to his possession of clothes and other items belonging to Mr. Higgins; as to the whereabouts of the Porsche motor vehicle; and as to his relationship with and his knowledge as to the whereabouts of the persons whom he described to the police only as “Mike” and “Colin”. As the interview proceeded, however, the police put a number of matters to him which, as the Crown contended, must have indicated to the applicant that they knew much more about what he had been doing than he had believed was the case. Such matters included the provenance of the Cartier cigarette lighter and credit card holder found in his possession; the fact that he had been to Deanswood Road on Friday 21 April with flowers for Mrs. Higgins; the fact that he had been to McEwans store on the evening of 21 April to buy polytarp, ducting tape and a spade; the fact that he had been with others to the “Guys & Dolls” clothing shop in Sydney on 22 April; that he had spoken to Carolyne in Sydney on 22 April; that he had endeavoured to exchange U.S. currency in Sydney; that he had been seen driving Mrs. Higgins’ Porsche motor vehicle; that he had purchased a “diver’s knife”; and several other matters. At some stage during the interview they informed him that they had located the Porsche motor vehicle, without its number plates, in the basement of the Aegean apartments. At approximately 7.50 p.m., the police asked him if he would be willing to participate in an identification parade in Broadbeach. He said that he would and the interview was suspended at 7.55 p.m. Shortly thereafter, the applicant called for Harrison and Maher and told them that he wished to speak with them “off the record”. In the course of that conversation, he informed the police officers of the circumstances surrounding the deaths of Mr. and Mrs. Higgins. When the interview resumed at 9.15 p.m. “on the record”, the applicant agreed that the events, which he had earlier described, had occurred and that no “threat or inducement” had been held out to him by the police officers which led him to make the “off the record” statements. When the recorded interview resumed, he was asked by Harrison to “tell us, as you told us before, the circumstances surrounding [the deaths]”. The applicant then recited, in narrative form, those circumstances.

In its essence, the applicant then told the police that, on 21 April, he had taken flowers to the Deanswood Road premises to speak to Mr. and Mrs. Higgins about his relationship with Amanda. He had told them that Amanda was pregnant and that he was happy with the news “and so forth”. He said that Mr. Higgins had become enraged and had shouted that “there was no way his daughter was going to have a black baby” and that he would see to it that she would have the child aborted. Mr. Higgins had then told him to “get out of the house”. He said that he had hailed a taxi and was taken back to Amanda’s car which he could not drive to the Higgins’ house because Mr. Higgins did not like him using it. He had then driven to Little Kent Street. Amanda was angry because she was unable to keep her doctor’s appointment. She had then driven off to her sister’s place. Shortly thereafter, Mr. Higgins had rung him on his mobile telephone, saying that he (Mr. Higgins) wanted to talk to Amanda. When he told him that Amanda was not there, he was told that he was a liar; that he (Mr. Higgins) would see to it that Amanda had an abortion; and that he would “see me in the gutter”. Mr. Higgins had then “hung up”. The applicant said that he had rung back and told Mr. Higgins that he wanted to speak with him “face to face”. Mr. Higgins said that he did not want to speak to the applicant. The applicant said that he was “hurt and angry”. He said he called a taxi “at about 4 or 5 p.m.”. He did not know what had possessed him to take the knife with him. When he arrived at Deanswood Road, Mr. Higgins came to the door, but Mrs. Higgins was not home. Mr. Higgins would not open the security door to let him in and was abusive to him. He said he was going to “ruin me”. The applicant said that, after a while, he got Mr. Higgins to let him in. He accused the applicant of “getting Amanda back onto drugs”, and that they began to struggle. He said that Mr. Higgins “went crazy”, grabbed him by the shoulders and said “I’ll kill you”. He said that they were pushing each other and that he “managed to spin him around and the knife went in and it kept going”. Mr. Higgins fell to the floor and that he, the applicant, kept stabbing him. Mr. Higgins became still and he pulled him towards the toilet. He heard the front door close and knew that Mrs. Higgins had come home. She had seen Mr. Higgins on the floor. He had then panicked, grabbed her and pulled her to the floor. She was “kicking and yelling”, it was “all a blur” and he kept stabbing her. He said he pulled the body of Mr. Higgins into the toilet; and Mrs. Higgins’ body into the laundry. There was blood on the floor and on him. He said that he had then called for a taxi to take him into the city. He was “walking around the Bourke Street Mall” when “the phone rang and it was Mike”. He told Mike what he had done and Mike told him “what to do” – “to grab a shovel and some stuff to wrap them up in, and some tape”. Mike had told him that he would help him and that he “would be there soon”; and “to find some place for them”. He had then gone to McEwans and bought the shovel, plastic and tape, and had thereafter taken a taxi back to Deanswood Road. He said he had sat outside wondering “where to dig a hole” and “what to do”. He sat there “until Mike turned up”. Mike then “took over”. They had then identified the “pool area” as the best place to bury the bodies. He started digging, while Mike went inside “and started cleaning up and cutting the plastic”. He dug until 3 or 4 o’clock in the morning. He said he could not remember what time Mike had arrived but it was “a few hours after the telephone call”. They wrapped the bodies and dragged them out and put them in the hole. He said that, whilst he was covering the bodies, Mike went inside to “see what he could get”. He “grabbed the wallets” and came outside with the keys to the Porsche. He could not find the keys to the Mercedes. They had then “split up”; he (the applicant) had taken the Porsche and he believed that Mike had taken a taxi. The police told him that a person had seen him leaving Deanswood Road in the Porsche. He agreed that it was probably him. It was “starting to become daylight”. He drove to th e airport and took a taxi back to Little Kent Street. Amanda was there but he “could not look at her”. He said that he “grabbed his gear” and told Amanda that he was “flying to Sydney”. In fact he had taken the taxi back to the airport, where he had put his belongings into the Porsche which he then drove to Sydney. He said he had “met up with Mike” at King’s Cross and had booked into the Landmark Hotel. Mike had the credit cards and the money. Mike had said “let’s have some fun”. He said “I’ll get your mind off it; come with me”; and he “took me to this bloody whore house”. He said he had “checked the credit card and it was O.K.”. The applicant stated that, on the following day, Mike had arrived at his hotel early and said: “we’re going out to use this card”; and “we’re meeting up with Colin”, whom the applicant said he had never met before. He said that he went out with Mike; that Mike had gone to get his hair cut and had come back with it dyed “bleached blond”. Later, they had met up with Colin and had a drink. He had then gone back to his hotel because he was tired. On the following day Mike “made a few phone calls” and had told the applicant to “head up here” (that is, Surfers Paradise) and that he would “meet me here”. Mike had said that he had it “sorted out” and that he “could get us some I.D.”. The applicant said that he and Mike had agreed to meet in Surfers Paradise and that, when he had arrived, Mike had called him on his mobile telephone. They agreed to meet in the Surfers Paradise Mall. They had done so. Mike had told him that he would “take the car and get rid of it”. Mike had then taken the car, and he had booked into the Hi-Ho Apartments. He had been there waiting for Mike to call him, but Mike did not call. He had simply “taken all the money, apart from what I had .. and just disappeared”. The applicant said that, when he was arrested that morning, the police had told him they had a “tip-off”. He said that there was “only one person who knew where I was”. He further said that he had bought the knife in Melbourne in Bourke Street and that Mike had taken it. He said that Mike had supplied the “surgical gloves” which he had used when disposing of the bodies, and that he had disposed of all the clothes which he had been wearing on the Friday night in a disposal bin on his way to Sydney. When his attention was directed to what appeared to be blood on the sleeve of the “Christopher George shirt”, recovered from the Hi-Ho Apartments, he said that it must have got there “when I was stabbing them”. In conclusion, the police asked the applicant a number of questions regarding “Mike’s” description, the clothes which he had been wearing, and where he was likely to be. The applicant was then charged with the murder of Mr. and Mrs. Higgins.

The Somerville Confession

When the applicant was lodged in the cells at the Southport Watch-house, another person was in the cell into which he was placed. That person was, in fact, Constable Jason Somerville – a young member from the Covert Surveillance Unit of the Queensland Police Force. He was posing as a University student who had been arrested for possession of drugs. In truth, he was there pursuant to an arrangement which had been made at about 5 p.m. on the afternoon of 26 April between Sergeant Bunton, his “controller”, and Senior Sergeant Maher. Maher and Harrison gave evidence that the arrangement had been made during the early part of their interview with the applicant, at a time when it appeared to them that the applicant was not prepared to tell them the true circumstances surrounding the deaths of Mr. and Mrs. Higgins. Following the receipt of the confessions to which we have referred in the preceding paragraph, Maher and Harrison said that they had decided to continue with the covert operation because they wished to receive further information about the identity and whereabouts of the man named “Mike” who, according to the applicant, was an “accessory after the fact” to the murders, and who, on the applicant’s version, may still have been in Surfers Paradise and in possession of the murder weapon. Following the conclusion of the interview, during which the applicant conceded that he had been “fairly treated” by his interviewers, Maher spoke again to Sergeant Bunton, the “controller”. Sergeant Bunton agreed that Somerville could be used in an attempt to gather further information about “Mike”. In accordance with what was said to be proper police procedure, no person other than “the controller” could give instructions to the undercover operative. Somerville said, and the judge accepted, that the briefing which he received was limited; namely “to go into the cells and to try to get [the applicant] to talk”. Somerville said that he knew something about the allegations made against his “cell-mate” from wide-spread media publicity. He had concealed on his body a micro-cassette tape, designed to record conversation. The conversation was recorded in two parts; from approximately 11.20 p.m. for some 40 minutes, following which Somerville was removed from the cell. Shortly after, he was returned to the cell and spent a further 35 minutes with the applicant. Somerville’s evidence, the tape of his conversations and a transcript of them were admitted into evidence over the objection of the applicant’s counsel. At the outset of the trial, the learned judge had declined an application to exclude the evidence. The Crown relied upon statements made during the first of these conversations, but placed no reliance upon the statements made in the second.

The incriminating parts of the first conversation included the following (we will use the abbreviations “S” and “L” for Somerville and the applicant):

S.        “You look like you’re making yourself comfortable”.
L.        “I’ll be in here for a while”.
…
S.        “You don’t look happy”.
L.        “If I catch the cunt that fucking done me in, I’ll fucking kill him”.
S.        “Yeah?”
L.        “So much for my fucking mate … My fucking mate done me in”.
…
L.        “I’ll be here for about 2 days”.
S.        “Yeah?”
L.        “Then I’ll be off to Melbourne”.
S.        “What are you going to Melbourne for?”
L.        “Extradition, man”.
S.        “Oh, fuck eh!   Mate I’d get up and give you a hand, but I’ve got a bung ankle, and I can’t walk real well at the moment.”
L.        “I’m going to get a lot of fucking practice”.
S.        “Sounds ominous”.
L.        “Yeah, I’ll be going away for a while.   Don’t ask what for, you don’t want to know.
S.        “Okay, fair enough … alright, I’ll bite, what for?”
L.        “You don’t want to know. You might shit yourself.”
S.        “Hey?”
L.        “You might shit yourself”.
S.        “Nah, nothing worries me. Well that’s not strictly true … wanting to go home for breakfast worries me.   I know what slop food is like, mate. I pity you if you’re going to be here for two days”.
L.        “They’re bringing me a pizza, mate.”
S.        “Are they”.
L.        “Yeah, I’m a celebrity”.
S.        “Oh, mate. Can I have some?”
L.        “Yeah, sure.”
S.        “You’re a celebrity?”
L.        “Yep, all the cameras are out there for me”.
S.        “Oh, is that who they’re for”.
L.        “Yep”.
S.        “I thought I was going to be famous there for a minute, with all those cameras, when they brought me up.   I thought – you beauty, fame and fortune, here I come.”
L.        “You bet you don’t fucking want it, I’ll tell ya.”

There was then a discussion about Somerville’s ankle, which he had broken some time before, but was still causing pain. The applicant said that “in a previous life”, he used to “look after” people like Somerville. He then gave advice to Somerville as to how to “work” his ankle to “go past the pain”. The applicant then asked Somerville what they “caught him for”. Somerville told him and said that he had been told he would be “fingerprinted” and released. The conversation continued:

L.        “Oh well, tomorrow morning, have a look at the Herald, the Herald Sun.”
S.        “The Herald Sun?”
L.        “Yeah; sorry the Courier”.
S.        “Oh, yeah?”
L.        “I’ll be front page news, boy”.
S.        “Front page”.
L.        “Front page”.
S.        “Hey mate, I’m intrigued … I’m intrigued; tell me about it. Why am I going to shit myself?”
L.        “Double murder, that’s what I’m in for”.
S.        “You’re in for a double murder. Yeah, right I’m not going to say anything”.
L.        “Don’t worry”.
S.        “Fair enough. So … where did you say you were from?”
L.        “Melbourne”.
S.        “Oh, Melbourne. That’s right. You said you were being extradited”.
L.        “Don’t freak out, man. I won’t do anything”.
S.        “No, you know, hey. I suppose it’s not every day I get to meet a …”
L.        “Killer”.
S.        “Yeah, well, am I allowed to ask who you killed?”
L.        “Just one cunt; and then fucking somebody else. It was just bad timing”.
S.        “Yeah.   … Melbourne, Melbourne”.
L.        “You might have heard on the T.V . or something”.
S.        “No.   There’s something in the paper about – yeah a double killing in Melbourne.   A couple of pages in”.
L.        “It’s not something I’m proud of, either”.
S.        “Hey?”
L.        “It’s not something I’m proud of”.
…
S.        “… Oh shit.   Fuck, you spin me out.   Six thirty this morning huh?”
L.        “Yeah”.
S.        “Fuckin hammered you then?”
L.        “Sorry?”
S.        “Hammered you?”
L.        “Did they ever”.
S.        “Did you tell them?”
L.        “Oh they had fucking evidence on me anyway; fucking anonymous tip. There’s only one cunt who knew where I was.”
S.        “Yeah?”
L.        “When I catch him”.
S.        “What, is he a mate of yours?”
L.        “If I ever catch him”.
S.        “Mate of yours?”
L.        “If I ever catch him”.
S.        “What the fuck were you doing up here, then?”
L.        “Hey? I was on the run”.

The conversation then moved into other areas before the applicant returned to the subject of the cameras that “will all be there tomorrow”. He said:

L.        “I think the pigs love it. Getting on the bloody news; caught the fucking double killer”.
S.        “Yeah; fucking big boys for the day.   They go home and say, ‘look that’s me, see’.”
L.        “Yeah, ‘we caught him’ … now you can say you shared a cell with me”.
S.        “I wonder how much they’d give me if I write a book about it. What do you reckon?”
L.        “I wonder how much they’d give me”.
S.        “Where were you when they got you?”
L.        “Crashed out in a car in … an underground car park”.
S.        “Hey; did you take the car, was that a …”
L.        “A Porsche”.
S.        “The Porsche, nice car”.
L.        “Fucking beautiful; I wanted the Merc, though”.
S.        “Hey?”
L.        “There was a Merc. there”.
S.        “Yeah?”
L.        “I couldn’t get the fucking thing going”.
…
S.        “How much have they got on you?”
L.        “Some bitch saw me coming out of the place”.
S.        “Did you tell them?”
L.        “They had my fucking, somebody left … the knife that I used”.
S.        “Hmm”.
L.        “At the Police Station”.
S.        “Somebody left it at the police station? What, took it there”.
L.        “Took it there and left it there”.
S.        “What, didn’t they say they fucking found them on Tuesday or Monday or            some shit?   When did they get the fucking knife?”
L.        “From the fucking guy I was with.   He was supposed to fuck, a few connections I had; fucking supposed to get rid of the knife … themselves.”
S.        “Is this the guy you reckon that fucking …”.
L.        “There was only one cunt knew where I was”.
S.        “ Hmm, and that’s obviously him”.
L.        “Yep”.
S.        “Did he come up here?”
L.        “Fucking mongrel”.
S.        “Mate, I’ve got some connections.   I can find him if you want”.
L.        “I’ve got my own”.
S.        “… I’ll be out of here before you will”.
L.        “Hey?”
S.        “I will be out of here before you will”.
L.        “I’ve already rung”.
…
S.        “Hey … but why, I mean why?”
L.        “Why what?”
S.        “Why did you do it?   What makes a person do that?”
L.        “Circumstances”.
S.        “Circumstances … I dunno. I suppose I never thought. I suppose I have thought about it …   a few people that would piss you off or something … I haven’t; I don’t think I could”.
L.        “It’s a lot easier than you think”.
…

We have found it necessary to set out significant portions of the Somerville conversation, because it became one of the focal points of the arguments addressed on behalf of the applicant to this Court. Although the applicant did not volunteer to Somerville any further information about the identity or whereabouts of “Mike”, he did repeat a number of the self-incriminating statements which he had already made to the police, but in circumstances where they became significant in the light of subsequent events.

Subsequent Events – Change of Heart by the Applicant

On 27 April 1995, the applicant was taken before the Southport Magistrates Court where, upon the production of the relevant warrant, an order was made pursuant to the provisions of Division 1 of Part 5 of the Service and Execution of Process Act 1992 (Cth.) that he be taken in custody to Melbourne. The application for extradition pursuant to the warrant was not opposed. Accordingly, the order having been made, the applicant was returned to Melbourne on 28 April 1995 and retained in custody at the Melbourne Remand Centre.

At a time shortly before 30 May 1995, Detective Senior Constable Harrison was informed by a Victoria Legal Aid solicitor, acting on the applicant’s behalf, that the applicant wished to provide some further information to the police in respect of the murders of Mr. and Mrs. Higgins. On 30 May 1995, Maher and Harrison saw the applicant at the Remand Centre. The applicant told them that he was not responsible for the murders of the Higgins, but that Amanda was. This was the first time that the applicant had made any mention of what was to become the focal point of his defence to the charges which had been preferred against him. The police treated his assertion as lacking foundation, and took no action upon it. At his trial – indeed at each of his trials – they were taken to task for not further investigating this “fresh” assertion; the contention being that they should have realized that the confession which the applicant had made to them at Broadbeach on 26 April 1995 was contrived, false in material parts and designed to shield Amanda from investigation and to protect him from further interrogation.

The Applicant’s Defence

The applicant gave sworn evidence at the trial. Indeed he had given sworn evidence at each of his previous trials. His defence was that he had not committed the murders, but that Amanda had. He did not take issue with the chronology of events attested to by prosecution witnesses. He gave explanations for those events, including explanations for each of the telephone calls upon which the prosecution relied. He agreed, as we have said, that he had purchased the murder weapon on 19 April, but said that he had done so for innocent purposes. He further agreed that the murders had occurred early in the afternoon of Friday, 21 April 1995, but asserted that Amanda had killed her father in his presence and that, after he had left the premises, had killed her mother - a fact which he had learned from Amanda later in the afternoon. He said that he had been told by Amanda, on or about 13 April 1995, that she was pregnant to him, and that thereafter he had become increasingly concerned about the effect which her resumed drug use would have upon their unborn child. He agreed that, on 21 April 1995, he had set off for work in Amanda’s car at about 9 a.m. He received a call from Mrs. Higgins at about 10.50 a.m. asking him to come to Deanswood Road. He denied taking flowers to the house on that day. He said that he had gone to Deanswood Road at Mrs. Higgins’ request and had spoken with her and her husband. Mr. Higgins wanted to know who was supplying Amanda with drugs and he told him whom he believed it was. He recalled that, during the conversation, Mr. Higgins had gone to speak to someone at the front door and that, when he returned, he wanted to know about the loan which had been obtained on the security of Amanda’s car. As a result of the conversation he realized that Amanda’s drug addiction was more long-standing than he had believed; and that the Higgins knew more about it than he did. Mrs. Higgins was sympathetic and comforted him, but Mr. Higgins demanded that he leave at once and to bring Amanda to the house. Mrs. Higgins said that she had to go to lunch and said that it could wait until the following day. Mr. Higgins, however, repeated his demand and the applicant left the house with Mrs. Higgins. He went back to where he had left the car in Forest Hill and drove it back to the flat at Little Kent Street. He told Amanda that her father knew about the loan and her resumption of drug abuse and that he wanted to see her immediately. She said she would come but was annoyed with him for talking to her parents. He said that, before leaving, she smoked some marijuana and that, on the way, she “snorted” some white powder “through a rolled $10 note”. He said that she drove the car into the garage at Deanswood Road, having first “looked through the side window” to see if there was room. Thereafter, a row had erupted between Amanda and her father over her drug taking. The applicant said that Amanda was “stoned” and that her father had told her that she was “going back into rehabilitation” and that he was “taking the car”. He said that Amanda became belligerent in a way which he had never before observed. Mr. Higgins then told the applicant to leave the house and started to push him. The applicant told Mr. Higgins that Amanda was “old enough to look after herself” and that “she was pregnant”. Mr. Higgins had replied by saying that he was not going to have a black grand-son in his family and that he, the applicant, was not “good enough”. Amanda became enraged and came up behind her father screaming. At first he thought she was merely hitting him with her fists, but that Mr. Higgins fell to the ground. He, the applicant, grabbed him as he fell and they both fell to the floor. Amanda then continued to hit her father and it was then that the applicant saw she had the knife. He said he took hold of the knife and then realised that Mr. Higgins was dead. Amanda had asked him to help her and he had replied that he was not “getting involved”. She responded by telling him that he was “already involved” because his fingerprints were on the knife, and that police would believe her, not him. He said that Amanda called for a taxi and told him to go back to the flat. He got into the taxi and left, but decided to return to get Amanda. She refused to come because, he said, she wanted to stay and talk to her mother. He then returned to the waiting taxi and went to Box Hill, whence he took a train to Richmond. He said that, whilst on the train, he made a call to Twilley. He asked Twilley to get Woodbine to call him because Woodbine knew people who could get false passports and drivers’ licences. He said that as he was walking up Punt Road at about 4 p.m. he saw Amanda driving her car towards him. When he got into the car Amanda told him that she needed him to assist her in “getting rid of them”. He then knew that she had killed her mother as well, and that he was obligated to assist her in disposing of the bodies. His evidence was that all that happened thereafter was done at Amanda’s direction, including the purchase of materials from McEwans, the telephone calls to Spiteri and Carolyne Mitchell, and the theft of the credit cards, money and car from the premises. It was her idea that she would see Dr. Pellegrini and then go to Carolyne’s birthday party to make it appear that all was well. She would give him a call from the party to make arrangements to meet him at Deanswood Road. In accordance with this arrangement, she had rung him at about 10 p.m. (a call which did not show on the Telstra records). He then went to the vicinity of the house but “not too close” because the dogs would bark. Amanda arrived some half an hour later and they set about disposing of the bodies. He dug the hole; she cleaned up the house; and together they wrapped and carried the bodies to the hole. She encouraged him to take the Porsche and told him that there was “money in the house”. He said that she left before him saying that she would go back to Little Kent Street to “pack his bags”. According to him, Amanda told him that she would give him as much time as possible to leave the country, and that, at some later time, they would meet up in another country.

The applicant said that Woodbine was lying when he said that he, the applicant, had confessed to him that he had killed the Higgins. He also said that Woodbine was lying when he said that the applicant had produced the knife at the Hi-Ho Apartments. He said that he had disposed of the knife on his way to Sydney.

It was a necessary part of the applicant’s case that the confession which he had made to Maher and Harrison at Broadbeach on 26 April 1995 was false. He made three claims. The first that he was threatened and assaulted by Maher during the suspended period of the interview when he was said to have first confessed; secondly that he was telling a false story to give the police what they “wanted” and to enable him to “get out of their clutches” and back to the lawyer of his choice in Melbourne; and thirdly that he had falsely implicated himself to “protect” Amanda and falsely implicated Woodbine into being the “accessory” in place of himself because he believed that Woodbine had “put him in” to the police. He said that he knew that Woodbine had an alibi anyway. He also said that he had intentionally altered the times of the killings to provide Amanda with an alibi. So far as the “Somerville confession” was concerned, he said that that also was false. He was “acting tough” to stop his “cell-mate” from talking and asking questions.

Grounds of Appeal

As we have stated, there were initially twelve grounds of appeal. Of those, five were abandoned (namely grounds 1, 3, 4, 6 and 7) and the remaining seven were argued. Ground 8 – namely that the verdicts on counts 1, 2 and 3 were “unsafe and unsatisfactory” – was reduced to an argument that the cumulation of errors reflected in grounds 2, 5, 9, 10, 11 and 12 rendered the verdicts unsafe and unsatisfactory in the sense that the applicant was denied a fair trial[2]. Thus, the substantive arguments were addressed in respect of grounds 2, 5, 9, 10, 11 and 12 which, in substance, were as follows:

2.        That the trial judge erred in admitting into evidence the “Somerville confession”.
5.        That the trial judge erred in failing to direct the jury that they could not use the evidence of the applicant about disposing of the knife as indicating a consciousness of guilt.
9.        That the learned judge erred in taking excuses from members of the jury panel in writing and not in open court.
10.      That the Crown had relied upon information improperly received in selecting the jury.
11.      That the learned judge erred in failing to discharge the jury upon the application of defence counsel consequent upon the judge’s interruption of defence counsel’s final address.
12.      That the judge erred in failing to direct the jury that, before they could act on the evidence of Woodbine, Twilley, Somerville, Maher and Harrison in respect of confessional statements made to them by the applicant, they had first to be satisfied beyond reasonable doubt that the confessions were true and/or a truthful acknowledgement on account of the applicant’s guilt of the two killings.

[2]R. v. Ireland (1970) 126 C.L.R. 321 at 331; R. v. Kotzmann [1999] 2 V.R. 123 at 157.

Ground 2 - Admission of the “Somerville confession”

As we have already noted, the trial judge declined, at the outset of the trial, to exclude from evidence the confessions admittedly made by the applicant to Somerville in the cells at Southport. In doing so he rejected a submission that he was precluded from revisiting the earlier discretionary exercises made by Cummins, J. in the two earlier trials in accordance with which that judge had excluded the confessions on the grounds of unfairness and public policy. The judge concluded that he was not precluded from revisiting the question as a consequence of the High Court decision in Rogers v. R.[3] because there was no issue of fact or law conclusively or finally decided by the discretionary rulings of Cummins, J.[4]. Mr. Holdenson, who appeared with Ms. Dixon for the applicant, contended that the decision in Edwards was inconsistent with the principles enunciated in Rogers but, recognizing that that decision would govern the circumstances of the present case, addressed no further argument on the point. Because we assume that he was “reserving” the applicant’s position with respect to the matter, we think it appropriate to state that, in our view, the decision in Edwards is not inconsistent with the principles enunciated in Rogers and that it was competent for his Honour to revisit the question whether, in the exercise of his discretion, he should exclude “the Somerville confessions”.

[3](1994) 181 C.L.R. 251

[4]R. v. Edwards [1998] 2 V.R. 354 per Hayne, J.A. at 355-6, per Batt, J.A. at 356; per Eames, A.J.A. at 365.

Mr. Holdenson submitted that, in exercising his discretion not to exclude the Somerville confessions, the judge was in error. The essence of his submission was that, in circumstances where the applicant had just been charged with two counts of murder and taken into custody pursuant to an extradition warrant, it was an abuse of the applicant’s rights and privileges to introduce into his cell an agent of the State, in the form of an undercover police officer, who was “wired for sound” and instructed to engage the applicant in conversation. He contended that such a procedure amounted to a breach of rights impliedly afforded to the applicant by s.83 of the Service and Execution of Process Act which required the applicant to be taken before a magistrate as soon as practicable after he had been apprehended.

Mr. Holdenson accepted that the evidence demonstrated that the warrant must have been issued at some point after the applicant had been charged and before he was placed in the cells. Nevertheless, his custody was “by virtue of the warrant”. Although he conceded that it might, in other circumstances, have been legitimate for police officers to use an “undercover policeman” as a legitimate investigative tool to obtain further information as to a co-offender nominated but unidentified by the applicant, it was implicit in the provisions of s.83 that such a procedure was unwarranted and unlawful. Although, as he conceded, the judge had not been asked to exercise his discretion to exclude the evidence on this basis, this Court should nevertheless be prepared to have regard to it in determining whether the discretion was properly exercised. In any event, it was submitted, his Honour was wrong in concluding that it would not be unfair to admit the evidence. It was said that, by the time Somerville was introduced into the cell, the applicant had been formally interviewed, charged and placed in custody. The focus of the police investigation had therefore passed beyond the investigative stage and the accusatory stage. In such circumstances, the applicant was in a position where a decision whether to speak or remain silent had become crucial, and it was the obligation of any police officer who sought to question him to remind and advise him of that right. It was unfair, so the applicant contended, for the police, as agents of the State, to deliberately introduce into the cells of a person in the applicant’s position one of their number for the purpose of deceiving him into making further confessional statements. It amounted to an “unfair trap”, and the confessions so obtained should have been excluded pursuant to the residual discretion reserved to the trial judge.

Nothwithstanding the force of these submissions, we are not persuaded that his Honour erred in the exercise of his discretion in admitting the statements which the applicant made to Somerville. His Honour found that these statements were relevant and probative, were made voluntarily and were apparently reliable. These findings were well open to him on the material before the court. Indeed, such findings were not strongly contested on this appeal, during the course of which the central submission of the applicant was that the exercise of the judge’s discretion had miscarried. Unless this Court is satisfied that some error of principle has been demonstrated or that the exercise of his Honour’s discretion can be shown to be wholly wrong, it would be inappropriate for it to interfere. As we have said, we can perceive no such error in the very careful reasons given by the judge.

The fact that confessional statements are made to an “undercover police operative” by a person who has been charged with an offence and lodged in custody, does not necessarily lead to the conclusion that the statements – otherwise found to be voluntary, reliable and relevant – should be excluded by the trial judge from the jury’s consideration pursuant to the “residual” or “overall” discretion invested in him, as those terms have been explained in R. v. Swaffield; Pavic v. R.[5]. The fact that an accused man is in detention and charged with an offence may be a factor, perhaps a significant factor, to be weighed by the judge in exercising his discretion[6]; but it is not a universally conclusive factor which predetermines the exercise of that discretion[7]. Each case must depend upon its own peculiar circumstances.[8] In the earlier trials of the applicant, which had resulted in disagreements, Cummins, J. appears to have taken the view that incriminating statements made by a person charged, and in custody, to an undercover police officer should be excluded, almost as a matter of course. Mr. Holdenson made submissions to this Court adopting, in essence, the view taken by Cummins, J. It is a view with which, respectfully, we cannot agree. It is true, as Mr. Holdenson submitted, that once an accused person has been charged and placed in custody, his situation, vis a vis the State, changes in the sense that the investigative processes are, at least with regard to the person charged, prima facie at an end and the accused is in control of the State[9]. However, that circumstance, in our view, merely emphasizes the need for caution to be exercised by the police in seeking to obtain further information, and to refrain from engaging in conduct which would make it unfair to the accused or contrary to policy to tender in evidence the information so obtained.
[5](1998) 192 C.L.R. 159
[6]See, for example, R. v. Pfenning (No.1) (1992) 57 S.A.S.R. 507; R. v. Roba & Ors. [2000] VSC 96.
[7]cf. R. v. Lowe [1997] 2 V.R. 465; R. v. Franklin [1998] VSC 217.
[8]Duke v. R. (1989) 180 C.L.R. 508 at 513, per Brennan, J.
[9]cf. R. v. Hebert [1990] 2 S.C.R. 151 at 182-5.

The particular circumstances which existed in this case, in our view, justified the trial judge’s conclusion not to exclude the “Somerville statements”. This was not a case where the police had deliberately introduced an undercover operative into the cell of the applicant for the purpose of circumventing his right to speak or remain silent, and thereby inducing him to make incriminating statements which he had earlier, in the exercise of his rights, declined to make. If that had been the purpose and effect of the police conduct, then the judge’s discretion may well have been exercised differently[10]. But, as his Honour found, that was not the purpose of introducing Somerville into the applicant’s cell. The applicant had shortly before, in the full and free exercise of his rights to speak or remain silent, confessed his guilt of the murder of Mr. and Mrs. Higgins. Somerville was introduced into the cells, not for the purpose of obtaining further statements incriminating the applicant, but in the hope that he might obtain information as to the identity and whereabouts of the person to whom the applicant had referred as “Mike”, and whom the police had reason to suspect may have been an accomplice of the applicant; may have been in possession of the murder weapon; and may still have been in the environment of Surfers Paradise. As it turned out, Somerville did not get the information which Maher and Harrison wanted, but obtained further admissions from the applicant as to his guilt of the murders.
[10]cf. R. v. Swaffield, supra, at 203 per Toohey, Gaudron and Gummow, JJ.

At the time when these further incriminating statements were made to Somerville they added very little, if anything, to the full and voluntary admissions which the applicant had already made shortly before in the recorded interview. It was what he had said in that record of interview which undoubtedly was, and remained, the primary confessional material upon which the Crown relied in proof of its case against the applicant. The impugned statements to Somerville took on a significance of a secondary character only when, in the course of his defence, and after time to re-consider what he had previously said, the applicant recanted the confessions which he had made to the police; asserted that Amanda had killed her parents; alleged that Woodbine was lying when he said the applicant had confessed his guilt to him and had given him the knife to dispose of; and asserted that the police had been both slovenly and biased in failing to further investigate his allegations against Amanda. The statements made to Somerville tended to demonstrate the implausibility of each of these contentions. Indeed, it was that acquired significance of the “Somerville statements” which, so Mr. Holdenson submitted, should have compelled his Honour to conclude that it would be unfair to the accused to admit such statements, because they undermined his defence.

We do not agree. It is true that the evidence was capable of demonstrating that aspects of the defence case were implausible, but that of itself does not conclusively establish that it was unfair to the accused to use his statements against him. Unfairness, in this sense, is concerned not so much with the question whether the police have acted unfairly, but more with – although not solely – the right of the accused to a fair trial[11]. In our view, it would be more than a little absurd if the process of a fair trial dictated that the applicant could assert, without let or hindrance, that one of the principal Crown witnesses was the murderer, and a perjuror to boot; and that another was falsely implicating him in a murder which he did not commit; yet the Crown should be denied the right to tender evidence of voluntary and reliable statements from the mouth of the applicant suggesting that those assertions were implausible. In our view, before the trial judge could permit such a situation to arise in the interests of a fair trial, it would need to be cogently demonstrated that the conduct of the police in obtaining the impugned material was sufficiently improper that fairness to the accused or policy considerations required that such material be withheld from the jury.
[11]Van der Meer v. R. (1988) 62 A.L.J.R. 656 at 666 per Wilson, Dawson and Toohey, JJ.; Duke v. R. (1989) 180 C.L.R. 508 at 513 per Brennan, J.; Swaffield (supra) at 189-90, 193, 195-6, 197 per Toohey, Gaudron and Gummow, JJ.

His Honour, we think, was entitled to conclude that the police conduct could not be so categorized. We agree with Mr. Coghlan, who appeared for the Crown in this Court, that it was perfectly understandable and legitimate for the police, in the situation in which they found themselves, to wish to identify and locate the applicant’s associate whilst he was still in the locality. In those circumstances, the use of the undercover policeman was in aid of investigating, not the applicant, but his alleged co-offender. As his Honour concluded, and in our view was entitled to conclude, there was nothing defiantly unlawful or contrary to contemporary standards in using an undercover operative for such a purpose. The provisions of sub-division 30A of Part 3 of the Crimes Act 1958 (Vic.) did not, strictly speaking, apply to the circumstances of this case. Mr. Holdenson, on the hearing of this appeal, did not contend that they did. However, in determining the propriety of the police conduct, and the gravity of its departure from contemporary standards, the Court will, as his Honour did, measure such conduct against what is required by the Crimes Act[12]. As the judge noted, however, an “investigating official” for the purposes of the sub-division does not include an “undercover operative” (s.464(1) Crimes Act 1958). Nor, in our view, is there anything to be found in s.83 of the Service and Execution of Process Act (Cth.) which rendered the police conduct in this case unlawful. It is true, as Mr. Holdenson submitted, that once a person has been apprehended pursuant to the relevant warrant, he is to be taken before the magistrate “as soon as practicable”. The provisions of Part 5 of the Act constitute a code, so it was submitted, for the apprehension and management of persons apprehended outside the state of jurisdiction[13]. In the circumstances which existed here, that requirement was complied with. We do not read into s.83 a legislative prohibition against further questioning of the person apprehended, as Mr. Holdenson submitted, pending compliance with s.83(1) of the Act. More particularly, it does not seem to us that, for the purposes of the exclusionary discretion, the propriety of introducing an undercover operative into the cell of a person apprehended pursuant to an extradition warrant should be treated any differently from circumstances in which such an operative is introduced into the cell of a person who has been placed in custody in the State of jurisdiction. No doubt there is always a degree of deception involved in the use of an undercover operative but, as has been frequently said, the investigation of serious crimes (our emphasis) cannot always be played out in accordance with a sportsman’s code of conduct[14].
[12]cf. R. v. Bartlett, unreported, Court of Criminal Appeal (Vic.), 14 September 1994 at pp.7-8.
[13]R. v. Forrest (1988) 35 A.Crim.R. 421; R. v. Bondareff & Ors. (1999) 74 S.A.S.R. 353 at 371.
[14]cf. per Brennan, C.J. in Swaffield/Pavic at pp.185-6.

Accordingly, we can see no reason to differ from the view which the judge took that such breaches of statute or police procedures as occurred during the “Somerville interview” were not so great as to make the conduct unacceptable, but rather warranted that they should be treated only as “a factor of some significance” in the exercise of the discretion. It is in the nature of their job that police undercover operatives do not identify themselves to those to whom they are talking, nor give to them the usual “caution”, a factor recognized by the court in Swaffield/Pavic.[15] Provided that they do not abuse their position or exploit the vulnerability of the person in custody, the latter takes the risk that he may be talking to an informer. In this case, his Honour was satisfied that Somerville did not abuse his position; nor did he take advantage of the applicant. The inter-action between them was not in the form of interrogation or elicitation by Somerville, but rather in the nature of conversation in which each of the parties was on equal terms. Mr. Holdenson attacked these conclusions, contending that they were not warranted by the written material. However, our own observations of that written material would not lead us to the view that his Honour was in error in concluding as he did. Furthermore, his Honour was in a position of advantage, because, unlike this Court, he had the opportunity to listen to the tapes – something which he did on several occasions. In this vexed area of the admissibility of confessional material given to a police undercover operative, some store appears to have been placed by the authorities upon the question of whether the operative has “elicited” the impugned material or whether it has been willingly conveyed to him during “neutral conversation”[16]. It has been suggested, we think with some justification, that such a subjective and nebulous test is an unsafe touchstone to guide the trial judge’s discretion on the question of admission or exclusion of relevant and admissible evidence[17]. However whether one regards the appropriate test as focussing upon unacceptable police conduct deliberately undertaken to circumvent fundamental rights of the accused; or upon the question whether the conduct, in all the circumstances, is acceptable according to contemporary community standards; or upon narrower issues such as “elicitation”, we are firmly of the view, for the reasons which we have stated, that there is no basis for interfering with the exercise of his Honour’s discretion not to exclude the “Somerville statements”. If it matters, we also agree with his Honour’s conclusion that the probative value of that evidence far exceeded its prejudicial effect, notwithstanding that some of the statements were couched in language which could reasonably be regarded as cold, calculating and callous.
[15]Supra, at pp.203-4 per Toohey, Gaudron and Gummow, JJ.; per Kirby, J. at p.216.
[16]cf. Swaffield/Pavic, supra, at pp.203-4, 224-5; R. v. Hebert; R. v. Suckling [1999] N.S.W. CCA 36.
[17]Martinez; “Confessions and Admissions to Undercover Police and Police Agents”; [2000] A.L.J. 391 at 403.

According to the transcript his Honour, upon returning to the bench, stated that he had read through the written applications and that he intended to excuse a number of applicants, whom he would name, without further explanation from them. The transcript then records simply, and perhaps a little enigmatically: “(His Honour read through the list of written excuses)”. So ended the transcribed record of proceedings for 7 May. The transcript continued with a record of the arraignment of the applicant on the following day.

It is against that background that consideration is to be given to ground 9, which reads –

“The learned trial judge erred in taking excuses from members of the jury panel in a manner which was contrary to either the Juries Act, 1967 (Vic.) (as amended) or the common law or both and, as a consequence, there has been a substantial miscarriage of justice.
PARTICULARS
(i) Those members of the jury panel who sought to be excused:
(a) made their applications not on oath; and
(b)supported their applications with material which was not on oath.

(ii)Those members of the jury panel who sought to be excused made their applications:
(a)in circumstances where the material relied upon by the applicants was not made known to either the Applicant or his legal representatives; and
(b)in circumstances where the material relied upon by the applicants was not made known to any member of the public who was present in Court.

(iii)Those members of the jury panel who sought to be excused, but were not excused by the learned trial judge, were returned to the jury panel and, by reason of the matters set out in paragraphs (i) and (ii) herein the Applicant was deprived of material relevant to the question of whether or not such member(s) ought be challenged either for cause or, alternatively, peremptorily by the Applicant during the process of the empanelment of the jury.”

The only provision in the Juries Act on which reliance was placed was s.13 which, so far as is now relevant, provides as follows –

“13(1) On proof on oath or by affidavit or statutory declaration or otherwise in writing to the satisfaction of the sheriff by or on behalf of a person whom he has recorded as liable for service as a juror that such person ought to be excused from service as a juror by reason of any illness or incapacity or any other matter of special urgency or importance the sheriff may if he thinks fit at any time before such person is required by his summons to attend in any court, excuse such person from serving as a juror for the whole or any part of the period of the currency of the jury list.
(2)          On proof on oath or by affidavit or statutory declaration or otherwise in writing to the satisfaction of the court in which a person is summoned to attend and serve as a juror –
(a)       that such person has not applied to the sheriff to be excused as aforesaid but that there was good reason for his failure to apply or has applied and the sheriff has not excused such person; and
(b)      that such person ought to be excused from attendance by reason of any illness or incapacity or any other matter of special urgency or importance –

the court may at any time if it thinks fit excuse such person from attendance for the whole or any part of the current sittings of the court and the court shall direct the sheriff to make a record thereof.
…”

The primary argument for the applicant, reduced to simplicity, was twofold. It was submitted, first, that sub.s.(2) of s.13 requires that the grounds for an application to the court for excusal from attendance for jury service should be stated on oath. Secondly, it was submitted that the requirement was mandatory and that in this case the judge granted applications for reasons not stated on oath, thus vitiating the empanelling of the jury and rendering the verdicts void.

The basic submission was that proof “otherwise in writing” referred to in the second line of subss. (1) and (2) of s.13 of the Juries Act is to be read ejusdem generis , so to speak, with the kinds of proof earlier enumerated, namely proof on oath or by affidavit or statutory declaration. The argument was that, as a matter of construction, s.13(2) requires all applications to the Court for excusal to be supported by material binding on the conscience of the applicant; and that unverified material, such as that merely written on the back of a list of witnesses, was insufficient to satisfy the requirement or to justify the grant of an excuse. That was the only statutory prerequisite that was said in this case not to have been satisfied. It was not submitted, for example, that there should have been proof, as subs.(2)(a) of s.13 perhaps contemplates, of circumstances in which the sheriff had not previously granted an application to be excused.

In our opinion the interpretation of the words “or otherwise in writing” that is so contended for is not open. The words were added to each of subss. (1) and (2) of s.13 of the 1967 Act by s. 2(1)(a) of the Juries (Amendment) Act 1975. Before the addition of those words s.13 required proof “on oath or by affidavit or by statutory declaration”. The words “on oath or by affidavit” might be thought a little odd and not to indicate a dichotomy for, of course, an affidavit was and is often – indeed usually – made on oath. That formula as used in the 1967 section has, however, a long history, reaching back at least to s.2 of the Juries Act 1904 of this State, in which it was presumably intended to distinguish between proof orally given on oath or affirmation and proof by written statement made on oath or affirmation. Although the 1904 Act did not refer in terms to an affirmation, the term “oath” doubtless included it: ever since the enactment of s.2 of the Oaths and Evidence Act 1890 a person objecting to being sworn was entitled (subject to conditions) to make a solemn affirmation having the same force and effect as an oath. When s. 2 of the 1904 Act was re-enacted as s. 13 of the Juries Act 1915 the formula “oath or affidavit” was expanded to include a statutory declaration, and that was continued in succeeding re-enactments down to the present. Notably, none of the statutes from 1904 onwards that contained the old formula, or the expanded version of it that now exists, required the oath, affidavit or statutory declaration (whatever it was) to be taken or made necessarily by the person summoned and seeking to be excused. That consideration of itself would appear to detract from the argument now advanced on behalf of the applicant to this Court. Nor does there seem to us to be any good reason to interpret the added words “or otherwise in writing” as contemplating that the applicant should necessarily provide, subscribe to or otherwise verify the writing. That is to say, what is “otherwise in writing” in support of an application for excusal might be provided by someone on behalf of the applicant, just as an affidavit or statutory declaration might be made and provided by another on behalf of an applicant.

So much appears to us to be clear as a matter of pure statutory construction. If there were any doubt about it, however, the question is, we think, put to rest by the second reading speeches of the ministers who introduced the Juries (Amendment) Bill in the Parliament in 1975 when the words “or otherwise in writing” were added to subss.(1) and (2) of s. 13 of the Juries Act 1967. The relevant part of the speeches was this –

“There is another amendment which will be of real practical value. The existing provision in the principal Act – section 13 – requires that written explanations for exemption from jury service must be on oath, by affidavit or by statutory declaration. Frequently, letters are received from hospitals, managers of homes for the aged, or medical practitioners advising of the medical or physical incapacity of persons called for jury service who are personally unable to apply to be excused. Such letters are not in the form required by the Act, but in the sheriff’s view are generally adequate evidence that a person can be excused. The new provision will enable the sheriff to accept any written explanation in appropriate cases.”

The excerpt we have quoted obviously refers to the insertion of the new words in subs.(1) of s.13, and counsel for the applicant submitted that it had no necessary bearing on the meaning of the same words that were inserted at the same time into subs.(2). We think the submission untenable. An intention to attach to the words a meaning and scope that differed between the two sub-sections should not, in the absence of necessity, be ascribed to the draftsman or any legislator. There is no necessity to do so here. We have no doubt that the words “or otherwise in writing” bear the same connotation in both sub-sections, namely a document in writing not being an affidavit or a statutory declaration .

Although ground 9 refers to an error by the judge contrary to the common law, no argument was addressed to us in reliance on any non-statutory substantive law. Rather it was said, as an argument alternative to that based on s. 13 of the Juries Act, that the procedure adopted by the judge was contrary to some fundamental rules or principles relating to the conduct of criminal trials. These included (as the argument ran) the right of an accused person to be present in court throughout his trial and to hear what is there said; the obligation of a court exercising criminal jurisdiction to sit in public and to conduct no part of a trial in private; and an obligation to ensure that justice must not only be done but be seen to be done. It was submitted that, consistently with these rules or principles, the applicant had not had a fair trial. More particularly, it was said that the procedure adopted unwarrantably disadvantaged the applicant by depriving him of knowledge of the identity of those members of the jury panel who sought unsuccessfully to be excused and of the basis on which their applications failed. This, as it was said, disadvantaged the applicant inasmuch as he was deprived of the ability to use that knowledge in mounting a challenge, either peremptorily or for cause, to any member of the panel who had unsuccessfully sought to be excused.

To this argument it must first be answered that the material on which the present application is brought does not actually demonstrate that the judge refused any application by a member of the panel to be excused. It may be that the judge entertained one application or more made to him orally, in which case it would seem that proof on oath (or affirmation) would have been required. There is no indication, however, that any such application was made, let alone refused. Although it seems that defence counsel at the trial (who did not appear in this Court) chose to be absent during the period when applications for excusal were made, there is no indication that the accused and his solicitor were not present in court throughout, and we take it that they were. Had any oral application for excusal been made and refused, it would presumably have been simple enough to provide this Court with evidence of it. Moreover, assuming for the sake of argument that an oral application was made and refused, it cannot be supposed that the accused was not aware at least that it was made and of the identity of the person making it and of the basis on which it was made.

The submission that the accused was prejudiced by the judge’s considering in his chambers written reasons relied on by panel members in support of their applications is also, in our opinion, without substance. The contention was that the procedure unwarrantably deprived the accused of information relating to members of the panel whose applications were refused that could have been useful to him in exercising his right of challenge. Again, the submission fails at the threshold for want of evidence of any such refusal. Assuming once more, however, that the judge did refuse an application, the submission presupposes an entitlement on the part of the accused to know the basis on which the application was made and the reason for its failure. There is, we think, no such entitlement. It was said in support of the submission that, as a matter of long-standing practice in this State, an application for excusal made by a member of a jury panel is always heard and determined in open court, so that the accused knows who makes it, the ground on which it is made and the basis of any refusal of it. That is, it may be conceded, the common practice; and it is presumably the norm because it is generally convenient. We were referred to no authority however, and we know of none, requiring such a practice to be followed and decreeing that, in default, there is a mistrial. We were referred on behalf of the applicant to R. v. Fitzgerald[28], a case in which the jury, having retired to consider their verdict, sent a message asking a question of the judge, who had left the court; and he, without communicating with the accused or his counsel, sent an answer in writing by the sheriff to the jury. There was a division of opinion of the majority constituting the Full Bench[29] upon a Special Case whether what occurred had been unlawful or merely irregular; but it was at all events held, whether there had been an illegality or an irregularity, that the trial had thereby been rendered a nullity. The decision is quite understandable on the footing that the communication between judge and jury should properly have been regarded as part of the trial, the accused having been still in the jury’s charge; and that what had been done infringed the fundamental principle that the prisoner or his counsel is to be afforded the opportunity of hearing and seeing all that takes place during his trial[30]; or at least all that takes place bearing on matters pertinent to any of the issues between the Crown and the prisoner.[31] There is room for debate as to whether, at the time any member of the jury panel might have sought to be, or to have been, excused a “trial” had begun in the sense in which Williams, J. used the word: cf. R.v. Symonds[32]. Even assuming, however, that the applicant’s trial should be taken then to have begun, we do not consider that there is any principle of the common law or of criminal practice or procedure in this State with which the learned judge’s course was inconsistent.
[28](1889) 15 V.L.R. 40.
[29]Of which the trial judge, Kerferd, J., was one.
[30]Per Williams, J., at 48.
[31]Per Holroyd, J., at 51.
[32][1981] V.R. 297, at 312-3.

There were, it seems, doubts whether the common law allowed a judge to excuse a juror from serving. Section 15 of the Juries Procedure (Ireland) Act 1876[33] recognised the doubts and, in order expediently to remove them, declared that –

“…it shall be lawful for the judge, if he shall so think fit, of any court before which any person may be summoned as a juror, to discharge in open court such person from further attendance on such court, or to excuse such person from attendance for any period during the sittings of such court.”

That provision evidently inspired s. 2 of the Juries Act 1904, as the side-note attests. The section clearly enough authorised the judge to grant excusal in open court, and that was the position under the corresponding provisions of the 1915 and 1928 consolidations of the Juries Act. The Juries Act 1956, however, which newly consolidated and amended the law relating to juries, by subs.(1)(a) of s.9 – the forerunner of s.13 of the 1967 Act – conferred power on the sheriff to excuse a person who had been summoned as a juror, and to do so at any time before he was required by his summons to attend in court. Clearly enough, the sheriff’s power was exercisable out of court and at a time before a person seeking to be excused had had anything to do with any particular accused person. Subsection (1)(b) of s.9 of the 1956 Act conferred power on a judge identical to that conferred by s.13(2) of the present Act – save for the words “or otherwise in writing”. Notably, there was no requirement, as formerly there had been, that the power be exercised in open court; and like the sheriff, the judge was empowered to exercise it “at any time”.

[33]39 & 40 Vict. C. 78.

Of course, the judge’s power to excuse may be and commonly is exercised in open court. It might be thought desirable generally to exercise it in public in order to demonstrate publicly the seriousness with which the court regards a citizen’s obligation to serve as a juror, and the trouble that the court takes in deciding whether a person summoned ought to be excused. The hearing and determination of applications for excusal in public may incidentally benefit an accused person who happens to be present or to be represented at the time. There is in our opinion, however, no absolute right of an accused person to be told the ground on which a prospective member of his jury applies to be excused from serving or, if the application is refused, the ground of the refusal. We see no reason to say that fairness necessarily requires that an accused (or indeed the Crown) should be entitled to assess the appropriateness of prospective jurors by reference to the process of hearing and determining applications to be excused. The consideration and determination by a judge of such applications is essentially an administrative task. It is not one in which the parties have any role to play. Even when an application supported by written material is heard and determined in open court, there is in our opinion no requirement that either the supporting material or the reasons for any refusal of the application should be publicly disclosed. The application for excusal might be made on grounds which the applicant reasonably wishes for good reason to keep confidential. The judge in this case referred to that very possibility. In the event that an accused person or his counsel sought to peruse written supporting material the judge might in his discretion allow or disallow that to be done; but we do not see that, save perhaps in exceptional circumstances where fairness dictated it, there would be any necessity to allow it.

We shall not pursue the point further because, there being no evidence that any application for excusal was refused by the judge, it is not possible to conclude that the present applicant was subjected to any unfairness or was in any other way prejudiced by the procedure in hearing applications for excuses that the judge adopted. Ground 9 therefore fails.

Ground 10 is as follows –

“The jury was empanelled in circumstances where the Crown peremptorily challenged a number of potential jurors by reference to their non-disqualifying prior convictions in circumstances where the information relied upon by the Crown:
(i)was provided to the Crown in circumstances not permitted by the Juries Act, 1967 (Vic.) (as amended); and/or
(ii)was used by the Crown in circumstances not permitted by the Juries Act, 1967 (Vic.) (as amended); and/or
(iii)was not provided to the defence –

and, as a consequence, there has been a substantial miscarriage of justice.”

For the purpose of this application the respondent admits the factual foundation outlined in ground 10. The Crown had peremptorily challenged some members of the jury panel in reliance on information supplied to the Crown in advance of the trial by the Chief Commissioner of Police. The Chief Commissioner had obtained the information as a result of inquiries made pursuant to his obligation to make them for the specific purpose imposed by s. 21(3) of the Juries Act 1967, namely to ascertain and to inform the sheriff whether any person disqualified under s.4 of the Act from serving as a juror was named on the panel. Defence counsel complained about the supply of the information to the Crown but the judge, applying the decisions of this Court in R. v. Su & Ors[34] and R. v. Katsuno[35], as he was no doubt bound to do, did not accede to the complaint. On 30 September 1999, well after the trial in this case concluded, the High Court delivered its judgment in the appeal against this Court’s decision in Katsuno. By majority decision the appeal was dismissed. All justices, however, disagreed with this Court’s conclusion that the Chief Commissioner’s practice of supplying to the Crown details or information of the kind relied on by the here unless some other flaw in the trial were shown. In the circumstances ground 10 does Crown in this case was not in contravention of s.21(3). The High Court decided that the practice was unlawful, essentially because that sub-section, properly interpreted, requires that the Chief Commissioner report the result of his enquiries only to the sheriff. The majority decision in Katsuno was that, despite the unlawfulness of the practice, it did not in that case result in the denial of a fair trial to the accused, and so the trial was not thereby rendered a nullity. Counsel for the applicant conceded that by parity of reasoning ground 10, although made out, could not avail the applicant not avail the applicant since counsel was disposed to rely on it only in combination with ground 9.

Ground 11

[34][1997] V.R. 1.

[35][1998] 4 V.R. 414.

We turn to consider ground 11, which is in these terms –

“The learned trial judge erred in the exercise of his discretion in that he failed to discharge the jury without verdict consequent upon the application by leading counsel for the defence to discharge the jury consequent upon the interruption by the learned trial judge during the final address by leading counsel for the defence, such interruption being in the presence of the jury.”

This ground derives from an exchange between the judge and leading counsel for the applicant in the course of his final address. The address began on the morning of Wednesday 1 July and endured until about mid-morning on Tuesday 7 July 1998 (the court having sat for only half a day on Monday 6 July) and occupied over 300 pages of transcript. The exchange in question occurred shortly before the luncheon adjournment on Friday 3 July, in the presence of the jury, and began as follows –

“HIS HONOUR:     Could I ask you, Mr Langslow, how much longer you anticipate you’ll be? It’s just there’s been an element of repetition that causes me some concern - - -
MR LANGSLOW: Your Honour, I will not finish today by any means.
HIS HONOUR:      Well, how longer do you anticipate that you’ll go? As I’ve indicated I’m not disposed to put any limit, but I think that there does come a time where really it is inappropriate if you continue to repeat the same material, that really is an insult to the jury, that they haven’t understood it the first time, that last piece of information falls into that category. I’m encouraging you really to be more focused rather than to assume that because you’ve got an open cheque that you should take advantage of it.
[MR LANGSLOW]:           With respect, sir, I find that somewhat insulting and - - -“

The judge pointed out that senior counsel for the Crown had addressed for three hours and that the address for the defence had already gone some three times as long as that. His Honour said that he was not seeking to impose a limit on counsel’s address but suggested in effect that the jury might have a view about that. In the event the jury were not invited to express a view and defence counsel indicated that he was likely to address for a further four hours. The court then adjourned for luncheon.

Upon resumption after the adjournment defence counsel submitted, in the absence of the jury that, as a result of the judge’s intervention, “the fair trial of the accused has been prejudiced to a degree”, and he made application that the jury be discharged without verdict. The application was refused and counsel’s address continued. It went on for the whole of the afternoon of Friday 3 July, for the whole of the afternoon of Monday 6 July and (to judge by the transcript) for about half of the morning of Tuesday 7 July.

In substance, the judge’s intervention on 3 July attracted the following submissions in support of ground 11. It had been an unnecessary, inappropriate and unwarrantable intrusion into defence counsel’s address, instead of which the judge should have waited a few minutes, allowed the jury to go to lunch and discussed the matter with counsel in the absence of the jury. Leading counsel should not have been inhibited in any manner in the presentation of the defence case. The intervention produced the risk that the jury understood or believed that the judge disapproved of the arguments being advanced for the defence, or that they were flawed, erroneous or unmeritorious; or that the judge took an adverse view of the whole of part of the defence case or had reached the opinion that the accused was guilty. The result was said to be that the defence case was impermissibly prejudiced and that its credibility was or may have been undermined and that the accused lost, or might have lost, an opportunity to have his defence fully and fairly considered by the jury, who should have been discharged.

In our opinion these criticisms are both extravagantly made and wholly without substance. It is of course defence counsel’s undeniable privilege to present the defence case to the jury in what he judges to be the most effective fashion. Counsel’s privilege is derived, however, only in the capacity of counsel – as a professional advocate who, in exercising the privilege, owes a duty not merely to the accused but to the court, whose task it is to sustain the system of justice upon which the accused depends for a fair and effective trial. As the Full Court said in R. v. Sorby[36], the system under which a fair trial is conducted is not to be exploited for the time being at the expense of those who are entitled to expect that the system will survive. To beset a jury of ordinary citizens in a trial like this, with prolonged and irritating repetition, over a period in excess of four days does no service to the system; and it is seriously to be doubted whether it can usefully serve the accused. It cannot be good advocacy to condemn a jury to be treated as a captive audience. The judge was well entitled to draw these matters to counsel’s attention. In R. v. Wilson and Grimwade[37], it was appropriately pointed out that “part of the responsibility of all counsel at any trial, civil or criminal, is to co-operate with the court and each other so far as is necessary to ensure that the system of justice is not betrayed…”; and, at 185, due warning was given that counsel who would not co-operate to avoid a mockery of the system of justice should expect to receive, with the sanction of an appellate court, appropriate regimentation by the trial judge. The attempt by the judge in this case to curb counsel’s excesses was at once well justified and a study in moderation. Counsel would have been wise to heed it. Instead, he continued for about another day and a half. The criticism on which ground 11 depends is fanciful and the ground fails.

Ground 12 – Misdirection as to the manner in which the jury could use evidence of confessions to Woodbine, Twilley, the police and Somerville

[36][1986] V.R. 753, at 786.

[37][1995] 1 V.R. 163, at 180.

There were, as we have previously noted, a number of confessional statements alleged to have been made by the applicant to a number of different witnesses. The Crown led evidence from Woodbine that the applicant had, on some five occasions, confessed to him his guilt of stabbing the deceased. It also led evidence that the applicant had confessed his guilt to Twilley. Further, there was the evidence, to which we have previously referred, that he had confessed his guilt to Maher and Harrison at the Broadbeach Police complex and, shortly thereafter, to Somerville in the cells.

The applicant’s case, through cross-examination and his own evidence, was that he had made no confessions to Woodbine or Twilley, and that they had concocted their evidence of his alleged confessional statements. In respect of the confessions made to Maher and Harrison, the applicant’s evidence was that these were falsely made for reasons to which we have previously adverted. The confessions made to Somerville, so the applicant asserted, were also false and made out of a sense of “self-assumed bravado” for his own protection and to prevent his “cell-mate” from continuing to talk to him.

Mr. Holdenson submitted that the learned judge was obliged to direct the jury – but did not – that they could only act upon these confessions if they were satisfied that they had been made and were also satisfied that they amounted to truthful acknowledgements by the applicant of his guilt. The judge’s conceded failure to so direct, Mr. Holdenson submitted, amounted to a substantial miscarriage of justice. In particular he relied upon passages in the judgments of this Court in R. v. D’Orta-Ekenaike[38]; R. v. Robertson[39] and R. v. Kotzmann[40].
[38][1998] 2 V.R. 140 at 147.
[39][1998] 4 V.R. 30 at 40-41.
[40][1999] 2 V.R. 123 at 130.

There is, we think, nothing in this ground of appeal. The judge’s directions of law to the jury are required to be moulded to meet the particular circumstances of the case before them. His obligation is to give them so much of the law as will guide them to a decision on the real issues in the case[41]. There is no rule of law or practice which prescribes that, whenever a confession is tendered in evidence, the jury must be directed in the manner in which Mr. Holdenson submitted they should have been directed in this case[42]. In some cases, of which D’Orta-Ekenaike (supra) is an example, the circumstances may be such that the judge is required, at least as a matter of prudence, to tell the jury that they should be satisfied, before acting on confessional evidence, that the confession was in fact made and/or that it was a truthful acknowledgement of the accused’s guilt of the crime charged. That was a case in which the Crown led in evidence and relied upon a plea of guilty tendered at a committal hearing; and the accused asserted that he did not understand the legal or factual ramifications of such a plea and that it had been tendered on advice which had been received at the time. The judge had given no appropriate instruction to the jury as to the manner in which they should approach such evidence and the Court of Appeal took the view that, in the circumstances of that case, the directions were insufficient. Again, in Robertson (supra), the alleged admissions were so unspecific that the Court concluded that the judge was duty bound to give the jury express directions as to how they should treat and use that evidence[43]. In this case, however, the issues were clear-cut. In respect of the admissions alleged to have been made to Woodbine and Twilley, the defence case was that they were concocted by Woodbine and Twilley. In the case of the admissions made to the police and to Somerville the defence case was that they were deliberate falsehoods concocted by the accused for reasons which he gave. These issues were clearly before the jury, the Crown asserting that in each case they were made and were true; and the defence asserting that in two instances they were not made at all and, in the other two instances, that they were made, but were false. The judge identified those issues and left them to the jury. In our view the circumstances were such, and the issues so clearly defined, that no duty rested upon the judge to tell the jury what must have been clearly apparent to them – namely, that they had to be satisfied that the confessions were made and were true before they could act upon them[44]. The views expressed by the Full Court in Burns[45] are, we think, apposite to the circumstances of this case. The Court said:

“In our opinion, there was in the circumstances of this case, where the truth of what was allegedly confessed was so clearly in issue, no duty resting upon the judge to direct the jury in express terms that they must be satisfied as to the truth of such confession before convicting the accused. That they must be so satisfied must have been clearly apparent to them and … it would be completely unreal in the circumstances of this case to suggest otherwise.”

Likewise, in the circumstances of this case where the issues relating to the confessional evidence were so clear-cut and squarely before the jury, there is an air of unreality in the suggestion that the jury needed to be told in express terms that they had to be satisfied of the fact that the respective confessions were made and of their truth before they could act on them. In each instance, there was no room for doubt as to the content or significance of the alleged confession; namely “I stabbed the deceased”. That was the case which the Crown set out to prove and the applicant set out to meet. Having regard to the full and unexceptionable directions given by his Honour on the onus and standard of proof, it would have been unnecessary surplusage for him to have given the jury the directions now contended for by the applicant. The adequacy of the directions which were given, and the fact that they met the circumstances of the case, is confirmed by the lack of exception taken to this aspect of the charge by the very experienced trial counsel who appeared for the applicant.

[41]Alford v. Magee (1952) 85 C.L.R. 437 at 466

[42]Ross v. R. (1922) 30 C.L.R. 246 at 255; Burns v. R. (1975) 132 C.L.R. 258 at 261; R. v. Brooks (1999) 103 A.Crim.R. 234 at 247.

[43][1998] 4 V.R. 30 at 40-1.

[44]cf. McKay v. R. (1935) 54 C.L.R. 1 at 7, per Latham, C.J.; R. v. Burns [1975] V.R. 241 at 259 per Pape, Menhennitt and Wilson, JJ.

[45][1975] V.R. 241 at 259.

Mr. Holdenson, in addressing argument in support of this ground, did not dispute the proposition that directions in the form for which he contended are only required where the circumstances call for them. Although he persisted in his submission that such directions were called for in the circumstances of this case, he ultimately conceded that the point was a “narrow” one. In our view, for the reasons given, the point is without substance and, accordingly, ground 12 is rejected.

Conclusion

It follows, from the foregoing, that each of the grounds of appeal argued on behalf of the applicant is rejected. Because, as we have already noted, ground 8 (namely that the verdicts were “unsafe and unsatisfactory”) depended for its efficacy upon an accumulation of errors, said to be identified in the grounds considered and rejected, it too must fail. Accordingly, the application for leave to appeal against conviction is refused.

[2000] VSCA 140

9 August 2000