R v Loughnane (No 4)
[2025] VSC 206
•20 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0173
| THE KING | Crown |
| v | |
| TOBY LOUGHNANE | Accused |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 June 2024 |
DATE OF RULING: | 20 June 2024 |
DATE OF REASONS: | 16 April 2025 |
CASE MAY BE CITED AS: | R v Loughnane (No 4) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 206 |
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CRIMINAL LAW — Murder — Whether certain post-offence conduct capable of being viewed by the jury as incriminating conduct — DPP v Lynn [2024] VSCA 62 — Jury Directions Act 2015, ss 18, 19, 20, 21.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Ms S Holmes | Office of Public Prosecutions |
| For the Accused | Mr D Sala with Ms G Boe | Stary Norton Halphen Solicitors |
Contents
INTRODUCTION
Legal Framework
Incriminating Conduct Notice
ITEM 2F – NOT CONTACTING 000, POLICE OR DECEASED’S FAMILY
Evidence
Submissions
Analysis
ITEM 2H – FAILING TO RESPOND TO NEWMAN’S INQUIRY ON 12 APRIL 2021 “DID YOU HIT HER?”
Evidence
Submissions
Analysis
ITEM 2O – COVERING THE DECEASED’S BODY IN LIME
Evidence
Submissions
Analysis
ITEM 2S –TASKING NEWMAN ON 15 APRIL 2021 TO GET HIM A STEAM CLEANER
Evidence
Submissions
Analysis
HIS HONOUR:
INTRODUCTION
These are my reasons for ruling that certain evidence of post-offence conduct could be relied upon by the prosecution as evidence of incriminating conduct.
Toby Loughnane was charged with murder. It was alleged by the prosecution that he fatally assaulted his girlfriend, Maryam Hamka, at his home in Brighton on the night of 10 to 11 April 2021. It was not in dispute that he disposed of her body in a shallow grave in bushland at Cape Schank on or about 14 April 2021. Her remains were not discovered until 2023.
The accused denied having assaulted Ms Hamka. The accused claimed that both he and Ms Hamka were using drugs at his home on the night in question. He claimed that she overdosed and that he was criminally responsible only insofar as, knowing that she had overdosed, he failed to get her medical assistance which may have prevented her death. On arraignment before the jury panel, the accused pleaded not guilty to murder but guilty to manslaughter by criminal negligence. The prosecution did not accept his plea of guilty to manslaughter, a jury was empanelled and the trial on the charge of murder proceeded.
At the close of the evidence, the accused submitted that I should not permit the prosecution to rely on evidence of certain post-offence conduct by the accused as evidence of incriminating conduct.
On 20 June 2024, in the course of the discussion required under the Jury Directions Act 2015 (Vic),[1] I ruled that the impugned evidence of post-offence conduct could be relied on by the prosecution as evidence of incriminating conduct.[2] I said I would provide written reasons for my rulings, which I do now.
[1]Trial transcript, 513–533.
[2]Trial transcript, 532–533.
Legal Framework
The Jury Directions Act 2015 (Vic) provides, relevantly:
18 Definitions
In this Division—
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused—
(a) of having committed an offence charged or an element of an offence charged; or
(b) which negates a defence to an offence charged;
19 Prosecution notice of evidence to be relied on as evidence of incriminating conduct
(1) The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence—
(a) a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and
(b) a copy of the evidence on which the prosecution intends to rely.
(2) A notice under subsection (1) must be served in accordance with Part 8.3 of Chapter 8 of the Criminal Procedure Act 2009.
20 Evidence of incriminating conduct
(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless—
(a) the prosecution has given notice in accordance with section 19; and
(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.
…
(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.
21 Mandatory direction on use of evidence of incriminating conduct
(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that—
(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that—
(i) the conduct occurred; and
(ii) the only reasonable explanation of the conduct is that the accused held that belief; and
(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.
…
In applying these provisions, I note the guidance provided by the Court of Appeal in DPP v Lynn[3] (footnotes deleted):
114. …the judge must determine whether the evidence is reasonably capable of being viewed by the jury as evidence of an implied admission by the accused of having committed an offence charged, an element of an offence charged or negating a defence to an offence charged. That determination must be based on the whole of the evidence. It involves no determination of whether the jury would so view the evidence, only whether the jury could do so.
…
116. The combination of these provisions indicates that the JDA contemplates that post- offence conduct evidence may be presented to the jury as evidence of incriminating conduct of the offence charged that ultimately may not be able to be treated as such by the jury because there are other reasonable explanations for that conduct. In other words, evidence of conduct explicable by more than one reasonable argument will, usually, pass through the gateway in s 20(1)(b).
…
121. Thus the s 20(1)(b) question is not whether the only reasonable explanation for the conduct is that the accused believed he or she had committed the offence charged, but, rather, is another explanation one which the jury could accept or reject as reasonably possible. If so, the evidence must pass through the gateway. It is then for the jury to determine whether, on the evidence as a whole and bringing its collective life experience, wisdom and common sense, it accepts or rejects the reasonable possibility of the non-incriminating or alternative explanation.
…
126. Hence s 20(1)(b) means that the trial judge must make a determination, based on the whole of the evidence, that the conduct evidence was such that the jury could rationally conclude that the only reasonable explanation for it was that the accused held the belief that he or she committed the offence charged. That the jury might not so conclude, because the conduct evidence might be reasonably explicable of a belief that the accused had committed a different offence (or for any other reason) is, generally, a matter for them.
[3]DPP v Lynn [2024] VSCA 62.
Incriminating Conduct Notice
The prosecution’s incriminating conduct notice[4] indicated that the prosecution sought to rely on evidence of the following post-offence conduct as incriminating conduct.[5] Initially the accused objected to all of the post-offence conduct being used as incriminating conduct,[6] but in the wake of the Court of Appeal’s decision in DPP v Lynn,[7] the accused narrowed his objections to items 2(f), (h), (o) and (s) in the prosecution’s incriminating conduct notice,[8] which I have underlined for convenience.
[4]The prosecution’s further amended notice of incriminating conduct dated 19 April 2024.
[5]In addition to the matters referred to in the notice, the prosecution indicated in oral submissions that it also sought to rely on additional conduct as incriminating conduct. The relevant conduct was a text message and three unanswered calls on 12 April 2021 from the accused to the deceased’s phone number. No objection was taken by the accused to the prosecution relying on this conduct as incriminating conduct, so I shall say nothing more about it.
[6]See defence written submissions dated 29 April 2024 at [90]–[92].
[7]DPP v Lynn [2024] VSCA 62.
[8]See defence written submissions dated 17 May 2024 at [9].
2. The conduct that the prosecution proposes to rely on as evidence of incriminating conduct is as follows:
a. At 4.37am and 4.41am on 11 April 2021, the accused sent messages to Shane Allan from the deceased phone, pretending to be the deceased.
b. At 4.45am on 11 April 2021, the accused removed the SIM card from the deceased’s mobile phone, placing it in his mobile phone.
c. On 11 April 2021, the accused sent the following messages to the deceased’s mobile phone numbers at a time when she was deceased:
i. Call me (4.52pm)
ii. Check app (4.52pm)
iii. Oi, call me I just woke up (4.55pm).
iv. ‘I’m getting a parma with O at the Marine Hotel is you want to come’ (5.58pm)
v. Neither of you called I’m just gonna get maccas. Come and watch a DVD (7.01pm)
vi. ‘Neither of u got back t ok me…I’m getting macas and going to watch a DVD call me did d u get ur car’ (7.01pm)
vii. Did you getbcaror u needed me to pick u up the weather’s shit let me know(7.02pm)
viii. Where are you? Call me ill come past soon (10.21pm)
d. On 11 April 2021, the accused sent the following messages to the deceased via the Signal application at a time when she was deceased:
i. Where are u ? I BLEW OUT ON THE G BAD…
ii. Thx for leaving me food and somemciggies call me when ur up
iii. I’ll come past later u left ur headphones here
iv. Call me asap
v. Yo
vi. Did u take the bottle of drink with u ?
vii. U with Mark or Shane?
viii. Nswer
ix. Come for a Parma at marine I’ve asked oska
x. I can pick u up call me
xi. Ur at Shane shot marks or rons I’ll go past rons on wayntours and then Shane then marks y
xii. Call me
e. On 11 April 2021, the accused attempted to call the deceased twice via the Signal application at a time when she was deceased.
f. At no time, either in the early hours of 11 April 2021 or after, did the accused call 000 or the police. From this date onwards, the accused avoided contact with the deceased’s family and failed to notify them of the deceased’s death.
g. On 12 April 2021, the accused sent the following messages to the deceased’s mobile phone numbers at a time when she was deceased:
i. Here (1.06am).
ii. Yo, what sup y haven’t you called? Are you at rons Mark or Shane sorry I couldn’t drive u I had too much juice,,I BLEW out upstairs and u were gone…..call me I’m sorry I’ll give you $ for taxi (1.12am)
iii. Imgoningtnto do a drive by rons ur s Shane s and Mark (1.13am)
iv. U only never respond when ur with them (1.14am)
h. At approximately 1pm on 12 April 2021, Oscar Newman asked the accused if he had hit the deceased, to which the accused avoided answering.
i. At approximately 1pm on 12 April 2021, the accused said that if NEWMAN “got dragged into” the matter, that he would own up to what he had done.
j. At 1.13pm on 12 April 2021, the accused attended Coles supermarket in Brighton and purchased cleaning products, including a 3 pack of paper towels and bottles of White King bleach, Supreme Ammonia, Dr Beckmann carpet brush cleaner, Coles disinfectant, Coles floor cleaner and Coles multi-purpose cleaner.
k. On 12 April 2021, the accused sent the following messages to the deceased via the Signal application at a time when she was deceased:
i. Turn it phone on babe. Don’t be shitty I couldn’t drive you
ii. Call me I’m sorry I BLEW OUT
l. The accused removed the deceased’s body from his address.
m. At 8.15 am on 13 April 2021, the accused utilised the Samsung tablet to send messages to the deceased at a time when she was deceased:
i. I guess it over me I spent most past night driving around looking for u…went past Shane ur s marks rons and johns wtf y u avoiding me
ii. Or having been arrested for ur mum thing
iii. Call me bb
n. On 14 April 2021, the accused drove the deceased’s body to bushland near Cape Schanck and buried her.
o. Whilst burying her, he covered her body with calcium oxide, commonly known as lime.
p. On 15 April 2021, the accused was spoken to at his address by police conducting a welfare check on the deceased. The accused lied to police at that time, stating he had last spoken to the deceased over the phone “maybe 2 days ago”.
q. On 15 April 2021, the accused asked Oscar Newman for coins to use a payphone, stating he had used a payphone to call the deceased’s phone.
r. On 15 April 2021, after the police had attended the accused’s home to conduct a welfare check on the deceased and to serve an intervention order on the accused, the accused used a public pay phone to send text messages to the deceased’s two phone numbers which read:
i. CALL ME jax cum tomy place cal o ph or pop round
ii. CALL ME IVE GOT NO PH COPS CAME BY BEFORE IVO weird anyways have they been to yrs call o or cum past
s. On 15 April 2021, the accused tasked Oscar Newman to obtain a steam cleaner that Oscar Newman obtained and delivered to the accused at 11.14 pm.
t. On 16 April 2021, when police attended the accused’s address to execute a search warrant:
i. the carpet at the foot of the stairs near the entry was soaked and had foamed soap on it. It wasin the process of being deeply scrubbedby the accused;
ii. two pairs of the accused’s runners and a glove were in the washing machine having been washed by the accused;
iii. a sheet was being soaked in the bath by the accused;
iv. The shower where the deceased was seen by Newman had a mop in it and cleaning products in the vanity sink, and is alleged to have been cleaned by the accused.
u. The accused told lies to the police when interviewed on 16 April 2021, when he stated the following:
i. “I have no idea where she is. I’ve seen her about three days ago, four days ago”;
ii. In response to the question about when he last spoke with deceased he said “I didn’t say we spoke. I said I had seen her”;
iii. “I told you I haven’t got a phone in the last interview”;
iv. In response to the question “Is there any reason why you don’t want to tell me about the last sighting you had of Maryam”, he answered “’Cause this is the first instance that I – that I’ve known she’s been missing”; and
v. ‘So she’s had a falling – she’s had a falling-out with one of her friends recently. That’s why you should ask the family”.
ITEM 2F – NOT CONTACTING 000, POLICE OR DECEASED’S FAMILY
Evidence
Regarding Item 2f, relevant evidence was given by Oscar Newman and the Informant, Detective Senior Constable Stewart.
Newman told the jury that he attended the accused’s home on 11 April 2021 and let himself in. He saw what appeared to be blood near the base of the stairs.[9] He went upstairs and saw the deceased naked and seemingly passed out in the shower of the ensuite of Bedroom 2.[10] He went into Bedroom 1 and saw the accused passed out on the bed.[11] He returned on 12 April and asked the accused what had happened. The accused told him that the deceased had overdosed. Newman said he asked the accused to call an ambulance. The accused responded “I can’t, I can’t, I’ll get done for manslaughter.” Newman indicated that he kept telling the accused to call an ambulance but realised he would not do so.[12]
[9]Trial transcript, 254.
[10]Trial transcript, 258.
[11]Trial transcript, 259.
[12]Trial transcript, 262.
DSC Stewart told the jury that analysis of the phone records for phones associated with the accused did not reveal any calls made by him on or around 10 or 11 April 2021 to 000, the ambulance or the police.[13]
[13]Trial transcript, 486.
I also note that messages sent by the accused to the deceased throughout their relationship included many negative comments about police and Ms Hamka being a dog for reporting him or threatening to report him to police.
Submissions
Regarding item 2f, the prosecution indicated at the close of evidence that it would not rely on the evidence of the accused’s avoidance of contact with the deceased’s family or failure to notify them of the deceased’s death.[14]
[14]Trial transcript, 515.
The prosecution submitted, however, that the accused’s failure to call 000 or the police was capable of being viewed as incriminating conduct. The accused was running a positive case that the deceased had overdosed rather than him having assaulted her. If he had not assaulted her, the prosecution argued that it was reasonable to expect him to have called 000 or the police.[15]
[15]Trial transcript, 515.
The accused argued that the evidence demonstrated he had a negative attitude towards police and “it’s not realistic or an appropriate probability that he is an individual who would reach out to police”.[16]
[16]Trial transcript, 527.
Analysis
I accept that the evidence adduced by the prosecution demonstrated a negative attitude on the accused’s part towards police. But, on the accused’s account, he had not fatally assaulted the deceased. Rather, she had taken a fatal overdose. Given that she was a drug addict, police were unlikely to reject that explanation out of hand. Indeed, he had a video recording of her in a seemingly substance affected state at 11:45pm on the night in question.[17] In all the circumstances, a jury could reject the hypothesis that he failed to call 000 or the police simply because of his negative attitude towards the police. Considered in combination with other conduct relied on as incriminating conduct (to which no objection was taken), a jury could conclude that the only reasonable explanation for him not calling 000 or the police was that he knew he had fatally assaulted Ms Hamka with murderous intention.
ITEM 2H – FAILING TO RESPOND TO NEWMAN’S INQUIRY ON 12 APRIL 2021 “DID YOU HIT HER?”
[17]Exhibit 54.
Evidence
Regarding Item 2h, Newman was asked the following questions and gave the following answers in examination in chief:
Q. You said when you spoke to Toby on 12 April he pretty quickly said Maryam had had an overdose. Did he say anything else about their night before?
A. No, but I asked him what happened. I said, 'Did you hit her?' because - in reference to the blood and he didn't respond. He didn't give me a yes or no.
Q. He didn't give you a yes or no?
A. No.
Q. What did he do when you asked that question?
A. I think he was just silent.[18]
[18]Trial transcript, 261–262.
Newman was not cross-examined in relation to this particular piece of evidence.
Submissions
The prosecution submitted that Newman and the accused were equal parties and that one would have expected the accused to respond to the question “Did you hit her?” if he had not done so. Having regard to the timing of the inquiry — one day after Mr Newman had found Ms Hamka seemingly passed out in the shower — and the rest of the conversation, the failure to respond supports an adverse inference.[19]
[19]Trial transcript, 516–517.
The accused submitted that, although Newman’s evidence was that the accused did not respond verbally when he asked him on 12 April 2021 “Did you hit her?”, it did not exclude the possibility that the accused responded non-verbally. When Newman was asked in examination in chief what the accused “did” in response to the question “Did you hit her?”, Newman said “I think he was just silent”.[20] The accused submitted that the state of the evidence was such that the prosecution could not establish that there was no response.[21]
[20]Trial transcript, 525.
[21]Trial transcript, 525–526.
Analysis
In my view, a jury could reasonably infer from Newman’s evidence that the accused made no response, verbally or otherwise, to Newman’s question to the accused “Did you hit her?”. The prosecutor’s question to Newman “What did he do?” is broader than “what did he say?”. Newman answered the prosecutor “I think he was just silent.” If the accused had responded non-verbally to Newman’s question by, for example, shaking his head, one would have expected Newman to say so in response to the question asked by the prosecutor.
Further, I find that a jury could reasonably view the accused’s failure to respond to Newman’s pointed question as an implied admission of guilt of murder. I note that it was not submitted by the accused that, if a jury could find that he had failed to respond to Newman’s question, that conduct was incapable of being viewed by a jury as incriminating conduct.
ITEM 2O – COVERING THE DECEASED’S BODY IN LIME
Evidence
Regarding Item 2o, relevant evidence was given by archaeologist John Sterenberg, forensic scientist Emily Aplegren and archaeological scientist Dr Schotsmans.
Sterenberg told the jury that on 7 August 2023 he attended the Cape Schank grave site and that he observed a chemical substance at the bottom of the pit and covering “certain skeletal elements of a single individual”[22] which were in the pit.
[22]Trial transcript, 385–386.
Aplegren told the jury that on 17 August 2023 she was provided with two items for analysis, one being a white solid mass (item 61) and the other a large mass containing a white layer, an off-white layer and a grey layer (item 62). On analysis, item 61 was found to be calcium oxide, also known as lime. Item 62 contained calcium oxide and calcium carbonate. She explained that calcium oxide converts into calcium carbonate when it is exposed to carbon dioxide in the atmosphere.[23]
[23]Trial transcript, 285–286.
Dr Schotsmans told the jury that Sterenberg’s report indicated that there was lime on the bottom of the pit, on top of the body deposited in the pit, and then the pit or grave had been backfilled with soil.[24] She told the jury that lime slows down decomposition of a body[25] and it may also suppress the smell.[26]
[24]Trial transcript, 285–286.
[25]Trial transcript, 394.
[26]Trial transcript, 399.
Submissions
The prosecution relied on the evidence that there was lime on the bottom of the grave and on top of the body as well as Dr Schotsmans’ evidence that lime may supress the smell of a decomposing body.[27] The prosecution submitted that the use of lime was one of a number of steps to conceal the deceased’s body.[28]
[27]Trial transcript, 517–518.
[28]Trial transcript, 524.
The accused submitted that the “gloss” of the evidence about the lime added nothing to the evidence about the removal of the body and its disposal in dense bushland.[29] Further, there was no evidence about where the lime came from, which might encourage the jury to speculate.[30] And Dr Schotsmans’ evidence that lime slows the decomposition of body ran counter to the prosecution’s argument.[31] Moreover, Dr Schotsmans only said that lime may supress smell.[32]
[29]Trial transcript, 527–528.
[30]Trial transcript, 528, 530.
[31]Trial transcript, 529.
[32]Trial transcript, 531.
Analysis
The evidence about the use of lime in the burial of the deceased’s body in the shallow grave has to be viewed in combination with the other evidence regarding the disposal of the body. When viewed in that way, it is part of a course of conduct to dispose of the body and conceal its whereabouts rather than being a gloss and, as such, was capable of being viewed by the jury as incriminating conduct. The jurors were unlikely to be concerned about where the lime came from and so were unlikely to engage in speculation in that respect.
ITEM 2S –TASKING NEWMAN ON 15 APRIL 2021 TO GET HIM A STEAM CLEANER
Evidence
Regarding item 2s, relevant evidence was given by Oscar Newman and DSC Stewart. Exhibits 15, 16 and 52 were also relevant.
Newman told the jury in examination in chief that the accused asked Newman to get him a steam cleaner. Newman said the accused had been asking for a steam cleaner for some time, in connection with the painting of the townhouse. The accused’s previous steam cleaner had broken down a couple of months prior. Newman said he sourced a steam cleaner through Gumtree.[33] He added that between 10 and 15 April 2021, he estimated that the accused asked him at least three times to get a steam cleaner.[34] Newman confirmed that Exhibit 15 was a photograph of the steam cleaner sourced by Newman, and Exhibit 16 was his correspondence with the seller of the steam cleaner on 15 April 2021.[35]
[33]Trial transcript, 264–265.
[34]Trial transcript, 266.
[35]Trial transcript, 264–266.
Newman told the jury in cross-examination that the accused was required to paint the unit. The accused had a steam cleaner which he had used to clean paint off the carpet, but it was broken. He confirmed that the accused had been asking Newman to source a steam cleaner for months.[36]
[36]Trial transcript, 312.
DSC Stewart told the jury that Newman’s Samsung Tablet revealed two Google searches on 15 April 2021 at 11:58 pm on how to fill a steam cleaner (see Exhibit 52).
Submissions
The prosecution submitted that although the accused had previously asked Newman to obtain a steam cleaner for him, those requests intensified after Ms Hamka’s death. The sourcing of the steam cleaner on 15 April 2021, considered in combination with the purchase and use of cleaning products subsequent to Ms Hamka’s death, was capable of being viewed as incriminating conduct.[37]
[37]Trial transcript, 524–525.
The accused submitted first, that the evidence about the steam cleaner added nothing of significance, given the other evidence about the purchase and use of cleaning products by the accused subsequent to Ms Hamka’s death and, second, the accused’s requests of Newman to source a steam cleaner predated the death of Ms Hamka.[38]
[38]Trial transcript, 531–532.
Analysis
Acquiring the means to steam clean carpets could be regarded by the jury as an important aspect of the accused’s post-offence conduct, in combination with the purchase and application of cleaning products. And Newman’s evidence was clear that there was an urgency to the accused’s requests for a steam cleaner after the events of 10 to 11 April 2021, which a jury could reasonably regard as incriminating conduct. The prosecution’s analysis was sound.
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