R v Russo (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 265 of 2005
	v
GIUSEPPE RUSSO (No. 2)

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JUDGES:	NETTLE and NEAVE, JJA and KING, AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 November 2006
DATE OF JUDGMENT:	20 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 297	1^st Revision 20 December 2006

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CRIMINAL LAW – Conviction – Murder – Evidence – Post-offence conduct – Whether lies and other post-offence conduct capable of evidencing consciousness of guilt – Admission - Whether judge erred in failing to give a Burns direction – DNA – Unknown contributor – Whether judge erred in failing to give a Pantoja direction – Juries – Jury announcing that they were “locked up 50-50” – Whether judge erred in failing to give a Black direction – Verdict – Whether unsafe and unsatisfactory – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle, QC	Ms A Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr G F Meredith	John Anile Pty

NETTLE, JA:

This is an application for leave to appeal from the applicant’s conviction, for the second time, of the murders of his parents. He was first tried and convicted of those offences in 2003. He appealed, and in 2004 this court allowed the appeals and quashed the convictions on the basis that some of the alleged lies left to the jury as capable of constituting evidence of consciousness of guilt were incapable of that effect and that the prosecutor had encouraged the jury to speculate as to who it may have been who had killed the deceased if it were not the applicant.[1] He was retried in 2005, and he was once again convicted of both murders,[2] and it is against those convictions for which he now seeks leave to appeal.
[1]R v Russo (2004) 11 VR 1.
[2]For which he was sentenced for those offences to a total effective sentence of 28 years’ imprisonment with a non-parole period of 23 years.

For the purpose of this application the grounds of appeal are:

·     Ground 5: The judge erred with respect to the directions concerning consciousness of guilt and lies.
Ground 5 (bis): The judge erred in failing to give the jury a Black direction after they announced they were “locked up 50-50”.
·     Ground 4: The judge erred in that he failed to direct the jury sufficiently that the evidence of DNA found at the scene of the killings could not be used as part of the prosecution’s circumstantial case against the applicant.
·     Ground 3: The judge erred in that he failed to direct the jury sufficiently that the evidence of a boot print found at the scene of the killings could not be used as part of the prosecution’s circumstantial case against the applicant.
·     Grounds 1 & 2:
The verdicts of the jury are unsafe and unsatisfactory; and in particular, a properly instructed and reasonable jury ought to have entertained a reasonable doubt as to the applicant’s guilt on each count.

Ground 5: Consciousness of guilt

The Crown’s case at trial was that the applicant killed his parents out of frustration and anger born of their refusal to help him financially and the burden of having to look after them in their advancing years. It was alleged that he had gone to their home at about 6.00pm on Saturday 18 April 1998 and, after ferociously beating them to death with a walking stick, that he had taken money from their safe and then ransacked their house to make it appear as though the killings were committed by a burglar. As part of that case, three items were left to the jury as capable of constituting evidence of consciousness of guilt:

·First, an explanation which the applicant gave police in his record of interview of 27 April 1998 for having moved the safe, and a cardboard fan box in which it was usually kept, away from the position where he said he found them close to his deceased father. He told police that he moved the objects in order to clear the way for ambulance officers.
·Secondly, a statement which the applicant made to police in the course of his interview of 27 April 1998, that it was as a result of returning to his parents’ home on the day before the interview that he remembered that he had discovered the safe on the floor of his parents’ home when he first found his parents dead, and it was then that he placed the safe in the cupboard and threw the fan box into the laundry.
·Thirdly, the applicant’s post-offence conduct in moving the safe and fan box, in order to disguise the fact that he was the murderer and that he had taken cash from the scene of the murder.

Counsel for the applicant contends that a jury could not have been satisfied that the alleged lies or post-offence conduct established consciousness of guilt beyond reasonable doubt and therefore that neither the lies nor conduct should have been left to the jury as capable of constituting evidence of consciousness of guilt. In his submission that is enough in itself to vitiate the convictions.

I do not accept that contention. At least since Edwards,[3] the law has been that, where the Crown presents a circumstantial case, the Crown may rely on lies or other post-offence conduct as evidencing consciousness of guilt without necessarily establishing the lie or the conduct or the character of either beyond reasonable doubt. Deane, Dawson and Gaudron JJ made the point in Edwards, as follows:
[3]Edwards v The Queen (1993) 178 CLR 193.

“The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him [or post offence conduct] exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt.”[4]

More recently, in R v Ho[5] Bell J of the New South Wales Court of Criminal Appeal observed to the same effect that:
“Since Edwards it has been repeatedly held by this Court that `where lies are used merely as evidencing a consciousness of guilt, as part of the circumstantial evidence case, it is unnecessary to establish either the lie or its character beyond reasonable doubt': Taylor (unreported, Court of Criminal Appeal, NSW, No 60593 of 1993, 18 April 1995) at 19 per Hunt CJ at CL; citing Dellapatrona (1993) 31 NSWLR 123 at 150; Sandford (1994) 72 A. Crim. R. 160 at 181; Small (1994) 33 N.S.W.L.R. 575 at 596.”

The point was also dealt with recently by this court in R v Ciantar,[6] where a number of the authorities are analysed.

[4](1993) 178 CLR at 210; R v Adam (1999) 106 A Crim R 510 at 521[55], per Spiegelman CJ.

[5]R v Dat Quoc Ho (2002) 130 A Crim R 545 at 561.

[6][2006] VSCA 263.

Of course, it is different where evidence of a lie or of other post-offence conduct stands alone. In that sort of case the lie or other conduct is incapable of supporting an inference of guilt unless established beyond reasonable doubt.

Callaway JA demonstrated the distinction in R v Kotzmann.[7] But that is not so here. In this case the Crown relied on a broad circumstantial case constituted of opportunity, motive and post-offence conduct, and in those circumstances I see no reason in principle, and it was not suggested that there was any in fact, why the jury could not have concluded that in context the lies and conduct bespoke consciousness of guilt.
[7][1999] 2 VR 123 at 128-130; see also R v Melrose [1989] 1 Qd R 572 at 579; R v Power (1996) 87 A Crim R 407 at 409; R v Nguyen (2001) 118 A Crim R 479 at 489; R v Ho (2002) 130 A Crim R 545 at 557; R v Ibrahim (2003) 7 VR 141 at 161[72].

Counsel for the applicant pointed out that the prosecutor conceded at trial, and the judge directed the jury, that they could not treat the lies or conduct as constituting evidence of consciousness of guilt unless satisfied beyond reasonable doubt that they bespoke guilt. He submitted that, since it was dealt with on that basis at trial, it should also be dealt with on that basis on appeal. Alternatively, he said, the fact that it was dealt with in that manner at trial implied that the judge and the prosecutor were of the view that there was a risk of the jury misusing the evidence unless constrained by a test of beyond reasonable doubt, and that it was not for this court to say otherwise.

I do not accept those contentions either. For the reasons already stated, the nature of the case was such that it was open to the jury to act on the basis of the evidence of consciousness of guilt without being satisfied of it beyond reasonable doubt. Neither the fact that the Crown made a concession which did not need to be made nor the fact that the judge directed the jury in terms more favourable to the applicant than was required was such as to alter that position. The applicant was treated more favourably than he needed to be. But that could not have harmed his chances of an acquittal.[8]
[8]R v Moore, unreported, NSWCCA, 21 June 1995, BC 9504828 at 16, per Gleeson CJ; R v Adam, unreported, NSWCCA, 23 July 1999, BC 9904090 at [54]-[60], per Spiegelman CJ.

Counsel for the applicant advanced a further contention that the judge erred in failing to give the jury an Edwards direction in respect of evidence that the applicant told his friend Mr Cipriano that the applicant had taken money from the safe at his parents’ house and that he should have taken the rest of the money “from some box”. Although accepting that the Crown did not at trial specifically identify that evidence as evidence from which the jury should infer consciousness of guilt, counsel submitted that it was so inextricably bound up with evidence of the applicant’s conduct in moving the safe and fan box that there was a real danger that the jury might regard it as being evidence of consciousness of guilt and treat it as such. In counsel’s submission, the problem was exacerbated by the prosecutor’s submission to the jury that:

“What is said to [Cipriano] outside the police station, we say, is capable of only one interpretation logically and no other. When he says he should have taken the rest of the money he’s talking about what the police ultimately found left behind. How could he know there’s money left unless he simply left it? To suggest the interrupted burglary again.
He would have, we suggest to you, no knowledge of what was left in that house [unless he had left it] and he left it in order to make it look like a burglar interrupted, fleeing the scene after the homicide and leaving things behind – the partially turned over bedrooms, for example. No, we say on that night you can accept Cipriano, he [the applicant] was aware, we say, [of] what was left that night and deliberately left it. The one who deliberately left it was the killer and the thief – the accused.”

I reject that submission. The purpose of an Edwards direction is to make plain to a jury that they are not to treat a lie as evidence of consciousness of guilt unless satisfied that the accused told the lie because he or she was conscious of being implicated in the offence charged and sought by means of the lie to distance himself or herself from it. But the evidence of what the applicant told Mr Cipriano was not and was not suggested to be evidence of a lie. It was put forward by the Crown for the truth of its contents in order to establish that the applicant knew that money had been left at the house and therefore by implication that the applicant must have seen it at the house. It was evidence of a circumstantial fact which, together with evidence of opportunity and motive, was put forward as part of the Crown’s wholly circumstantial case.

Certainly, the statement to Mr Cipriano was in the nature of an admission, because it implied that the applicant was or may have been at the house at the time that the deceased were killed. Accordingly, the judge needed to make the jury understand that they were not to treat the statement as implicating the applicant unless they were satisfied that the statement was made and that it was true. And one way in which that might have been achieved was by means a Burns direction,[9] which is the course that I would favour.[10] But as Burns makes clear, it is not every case in which such a direction needs to be given. [11] Where, an accused’s position at trial is that evidence of an alleged admission is false, a reasonable jury once satisfied that the admission was made might readily be satisfied that it was true and hence it may not be necessary to warn the jury that they should not act upon the statement unless satisfied of its truth. As it was put in Burns,

“…The nature of the direction necessary to be given properly to instruct the jury as to the use of [an admission] must depend on all the circumstances of the case. ‘There is no rule of law or practice which requires the Judge to caution the jury against acting on such evidence or which prescribes any measure of comment which it is his duty to make upon it.’ …In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.”[12]

[9]Burns v The Queen (1975) 132 CLR 258.

[10]See R v Russo (2004) 11 VR 1 at 10 [28].

[11]See also R v PFG [2006] VSCA 130 at [31].

[12]ibid. at 261, citing Ross v The King (1922) 30 CLR 246 at 255.

Parity of reasoning implies that where there is really no dispute that an alleged statement was made and the only issue is the sense in which the applicant intended it to be understood, it is hardly necessary to point out to the jury that, if they were satisfied about the effect of the statement, they should not act upon it unless they are satisfied it was made.

In my view that is the case here. It was not contended that the statement was not made. The defence stance at trial was that Mr Cipriano conceded in cross-examination that the money which the applicant said he wished he had taken was money he found at the house when he arrived to find his parents dead. And the defence position was made plain to the jury in final address and by the judge in his Honour’s summary of defence counsel’s submission on the point as follows:

“Mr Cipriano said in examination-in-chief that the accused said he should have taken the rest of the money because the coppers were going to grab it out of some box but in cross-examination, it was pointed out to you by [defence counsel], he conceded that the accused was really ta[l]king about the money at the house which was there when he found his parents dead which was contrary to the prosecution theory.”

The judge also specifically directed the jury that they should not treat the statement as evidence of the applicant’s knowledge unless they were satisfied beyond reasonable doubt that it had that effect:

“The evidence of opportunity, motive, and consciousness of guilt, and such evidence as the evidence of the accused’s knowledge as allegedly shown in his remarks to Mr Cipriano outside the North Altona Police Station, are all matters of central importance to the prosecution case which must be established beyond reasonable doubt if you intend to use such facts as part of the reasoning process towards a conclusion of guilt. “

If anything, the judge’s directions were too favourable to the applicant. For the reasons already given, I do not consider that it was necessary that the jury be satisfied of the admission beyond reasonable doubt. Like the evidence of lies and post-offence conduct, it was something which, even if established only to a lesser standard than beyond reasonable doubt, was capable as part of the totality of the circumstantial case of sustaining an inference of guilt beyond reasonable doubt. But once again, the fact that judge gave that direction could only have been of advantage to the applicant. And it was prudent of his Honour to do so. It was certainly sufficient in the context to make clear to the jury that they should not place any reliance on the alleged admission unless satisfied of its effect.

Ground 4: Evidence of DNA

Under Ground 4, counsel for the applicant submitted that the judge erred by failing to direct the jury about the significance of DNA evidence in what were said were two important respects. The first concerned composite samples of DNA taken from the crime scene which upon test were found to show a mixture of the DNA of both deceased and that the applicant could not be excluded as a contributor (because he was biological child of both deceased). Counsel complained that no probability was ascribed to the possibility of the applicant being a contributor and thus that the evidence was left hanging in a fashion that may have been used by the jury to the detriment of the applicant. He contended that in those circumstances it was incumbent on the judge to direct the jury that they could not use that evidence in the process of reasoning to guilt.

The second aspect concerned some DNA samples taken from the crime scene from which the applicant could be excluded as a contributor. Counsel submitted that it was potentially exculpatory evidence and therefore called for a direction along the lines suggested in Pantoja.[13]
[13]R v Pantoja (1996) 88 A Crim R 554 at 563.

In my view, neither submission is persuasive. As to the first, the Crown did not invite the jury to use the DNA evidence in reasoning to a conclusion of guilt. To the contrary, it argued that it was not surprising that the deceased’s DNA and the applicant’s DNA were found at the crime scene - because it was known that they had all been at the scene in recent times. The defence position was just the same. Defence counsel submitted to the jury that since the applicant had on occasion stayed in the house and was a frequent visitor, it was not the least surprising that his DNA should be detected. In the result, the likelihood of the applicant’s DNA being present was not in issue and consequently there was no point in attempting to ascribe a probability to the chance that the applicant was a contributor. It could not have improved the applicant’s chance of acquittal.

As to the second aspect of the matter, there was a difference between the Crown and the defence. The Crown put to the jury that they should not treat as significant the fact that there was DNA from an unknown source - because it may well have been left by someone, coughing, sweating or dropping hair or skin particles. In effect the Crown’s position at trial was that the DNA evidence was a diversion. The defence argument, however, was that it was significant that DNA from an unknown source had been found because it showed that someone other than the deceased had handled the murder weapon. The difference between the two positions was put to the jury in final addresses and in the judge’s summary of counsel’s arguments.

But the point about Pantoja seems to me to be misconceived. Pantoja was concerned with the need to direct juries that the probability that DNA was contributed by an accused may have to be reduced if the offender is of a race which is not appropriately represented in the data base against which the sample is compared. I am unable to see that that has anything to do with a case like this, where it was not in issue that there was DNA contributed by someone other than the deceased or the applicant. There was nothing here which qualified the exculpatory effect of the unknown DNA. It was clear to the jury that it was there and clear therefore that someone other than the deceased and the applicant had been in the house.

Ground 5, bis: Failure to give a Black direction

Under the second ground of appeal numbered 5, counsel for the applicant referred to the fact that, after the jury had been deliberating for some time, they returned to the court room and announced that they were “locked up 50-50” and required direction. Counsel submitted that, in those circumstances, it was incumbent on the judge to give the jury what he described as a full Black direction including a reminder to the jury of the need to be satisfied of guilt beyond reasonable doubt.

I do not accept that submission. The circumstances of the matter are set out in the judge’s ruling. As his Honour records, the trial lasted two weeks and involved 32 witnesses and he charged the jury for two days before they retired to consider their verdict at 3.29pm on Monday 16 May 2005. They continued to deliberate on 17 May 2005 and during the course of that day requested and were supplied with transcript of some of the evidence. Then, at about 4.00pm that day, they asked two questions:

“(1)We are locked up 50-50, please can you give us directions as we have gone through all of the details?

(2) When was probate finished?”

After consulting counsel, and without objection, his Honour told the jury that the experience of the courts was that in a case of the kind with which the jury were concerned, where there was a significant amount of evidence to consider, a jury may well take more time to reach a verdict than in some other cases. Accordingly, his Honour said, he encouraged the jury to keep at their deliberations with appropriate breaks as they considered fit. He also told them that there was no evidence as to when probate was finalised. His Honour, however, rejected defence applications to remind the jury of the need to be satisfied of guilt beyond reasonable doubt, holding that he had no reason to doubt that the jury were well aware of that by reason of the directions which he had given them in the course of his charge.

With respect, all of that appears to me to be unremarkable and unexceptionable. The circumstances in which it is appropriate to give a Black direction were recently considered by this court in R v Makrae-Bathory,[14] and as was there said:

“…Generally speaking, [a Black direction] should only be given when the jury has indicated that they are having difficulty in reaching a unanimous verdict. The purpose of the direction is to encourage the jury to persevere with the process. The giving of such a direction is a precondition to the acceptance of a majority verdict pursuant to s.46 of the Juries Act 2000. But whether a direction is appropriate is essentially a question of discretion of the trial judge…”

[14][2006] VSCA 179 at [58].

In this case those circumstances did not arise. The jury may have indicated that they were having some difficulty in reaching a verdict. But it was anything but intractable. They were seeking guidance as to how to go about overcoming their difficulties and the judge’s response was precisely directed to meeting that requirement. Thereafter they retired and continued their deliberations until about 6.00 pm that day and then continued again the next morning until returning a verdict at 3.20 pm. The point never arose at which it was necessary to tell the jury of the possibility of discharge and, because the judge had previously gone to considerable lengths in instructing the jury on the burden and onus of proof, I see no reason to think that the jury were in any doubt as to the need for proof of guilt beyond reasonable doubt.

Grounds 1 and 2

Under the heading of Grounds 1 and 2, counsel for the applicant argued that the verdicts were unsafe and unsatisfactory in that a properly instructed and reasonable jury ought to have entertained a reasonable doubt as to the applicant’s guilt on each count. That submission is more troubling.

As has been observed, the Crown’s case was wholly circumstantial. At the time of the murders, the applicant was 34 years of age and had been unemployed since taking a retrenchment package from Victorian Rail in 1992. In the five years in which he had been out of work he had exhausted all of his capital and his available lines of credit. He had also separated from his wife, Michelle Russo, and he had given her the family home and car. Unknown to his wife or to his parents, he was living with his girlfriend at her residence in a northern suburb and, as the evidence disclosed, he was in pressing need of between $11,000 and $15,000 with which to meet some unspecified obligation. The Crown contended that the applicant killed his parents out of frustration and anger born of their refusal to help him financially and because of the burden of attending to their requirements in their advancing years. Against the background of the evidence which was presented, that was a compelling theory.

As opposed to that, however, while the applicant did not give evidence or call any witnesses, there are some aspects of the Crown case that were made to look doubtful and others about which more than one view was open.

I turn therefore to the evidence

(i) Michelle Russo

The Crown called the applicant’s former wife, Michelle Russo, to give evidence of the family history and as to the events of 18 and 19 April 1998. She said that she and the applicant had married in 1989 and that there were two children of the marriage, Guy born in October 1990 and Gemma in August 1993. When first married, they had lived in a unit in Sunshine which was purchased for them by the applicant’s father. The applicant began work as a railways guard in 1989 and continued as such until retrenched in 1993.

In 1991 she and the applicant moved to a house in Laverton, which was also purchased for them by the applicant’s father, and was registered in the joint names of the applicant and his father. It was valued at about $200,000. They then sold the unit in Sunshine for about $80,000, and the proceeds were deposited into the applicant’s bank account. The applicant spent $20,000 of those moneys in the purchase of a Toyota Camry.

Upon being retrenched in 1993, the applicant received a severance payment of some $20,000 and that money was also paid into the applicant’s bank account and thereafter used to defray family expenses. At about the same time the applicant’s father fell ill with cancer and over time he was treated with chemo-therapy and surgery. Mrs Russo said that she and the applicant used to visit the deceased together at least once or twice a fortnight. She added that on the occasions she had been there during the day the doors were usually left unlocked until the deceased went to bed, and she noted that the side gate did not have a proper lock but was secured with a piece of wire put over the fence.

Mrs Russo said that she and the applicant separated in 1997 and at that point the applicant moved out of the matrimonial home and left the house and the Camry with her and the children. They agreed not to tell the applicant’s parents about the separation, because they did not want to upset them. But at around the same time, the applicant’s mother purchased the applicant a second car - a blue Holden Kingswood. According to Mrs Russo, she did not know where the applicant went to live and she did not know that the applicant had a girl friend. She said that she did not find out about Ms Rinon until the morning after the deceased were found.

Mrs Russo said that prior to the weekend of 18 and 19 April 1998, she had arranged for her children to go and stay with her parents in Buanger, near Ararat and on Saturday, 18 April 1998 the applicant and Mrs Russo drove to Buanger to collect the children. She said that they left Melbourne at approximately 9.00am and returned at approximately 3.00pm. They bought fish and chips for the children and ate together. The applicant left at between 5.00 and 5.30pm.

Mrs Russo said that on Sunday 19 April 1998, the applicant telephoned her at about 9.00am to check the details of a prior arrangement to baby-sit their son, Guy, while Mrs Russo attended her sister’s kitchen tea party in Gisborne. He arrived at between 10.00 and 10.30am. She said that she returned home at just after 7.00pm, at which time he told her that he had been trying to telephone his parents and that they were not answering. He asked her to try telephoning, which she did, but there was no answer. He told her he was worried because his parents should have been able to hear the phone ringing. He said that he was going to go past their house and just look in and see if they were there. If they were, he was going to continue on to wherever he was going. The applicant left at approximately 7.15 pm and Mrs Russo estimated that it would have taken him between 10 and 15 minutes to reach the deceased’s house.

Mrs Russo said that at 7.30pm she received a telephone call from the applicant, in which he asked her to call an ambulance because he had found his dad and his dad was dead on the floor and that he could not find his mother. She telephoned the ambulance and directed them to the address. Mrs Russo said that she then received a second call from the applicant at 7.42pm, at which time he asked her to call the police. Mrs Russo said that she asked the applicant whether he had found his mother, and the applicant replied: “Just call the police”. Mrs Russo telephoned the police, then took her children to a friend’s house and drove to the deceaseds’ house.

Mrs Russo said that she arrived there just after 8.00 pm. and saw an ambulance leaving and a few people standing on the corner and police tape around the house. She saw the applicant on the nature strip outside the front of the house in Blackshaws Road and saw Rocco Cipriano walking towards the applicant. She asked the applicant where his mother was, and he said: “She’s gone”. She asked what he meant and the applicant said: “She’s dead too”. She started to cry and the applicant did too. Mrs Russo left the scene at approximately 8.30pm.

In the course of cross-examination, Mrs Russo said that she had been asked by police about whether she had seen the applicant wearing Blundstone boots, and that she had said that she had not seen him in Blundstone boots but that he had had some working boots when working for the railways. She described the shoes the applicant wore on the night of 19 April 1998 as smart casual shoes. She also said that the applicant had been very close to his parents and that they had been very generous to her and the applicant.

(ii) Janette Hardie

Mrs Russo’s mother, Janette Hardie, gave evidence that she had met the applicant’s parents about five or six times.

Ms Hardie confirmed Mrs Russo’s evidence that she had dropped off applicant’s children on Sunday 12 April 1998 to stay with her at Buangor for a week, and that they were collected by the applicant and Mrs Russo on Saturday 18 April 1998. She said that she had driven back to Melbourne with the applicant, Mrs Russo and the children, and was delivered to her house in Sunshine at about 3.15pm. She said that the next morning Mrs Russo and Gemma had arrived at her house at about 12.00 noon, and that they drove to Gisborne where they spent the day until Mrs Russo left Gisborne just before 6.00pm.

(iii) Andrew David Went

Andrew David Went was an electrician who had installed three ceiling fans at the deceased’s house on 10 July 1996. Mr Went said that the applicant and his parents were present at the house on that day. On his arrival, the applicant answered the door and his parents were standing behind him. During the job, Mr Went had to return to his car on various occasions, and on each occasion the deceased locked the front door, so he had to knock on the door each time to get back inside. Mr Went was not aware of the back door.

(iv) Margaret Jean Rigoni

Margaret Jean Rigoni was a registered nurse and qualified stomal therapy nurse. She gave evidence that she had first met the applicant’s father, Gaetano Russo, on or about 14 October 1997, and had visited him at his home on six occasions. On those occasions she entered through the front door, a wire door with a solid door behind it, which was locked before her arrival. She said that the applicant had attended a course at the Western Hospital to learn how to change the colostomy bag and she had seen him change his father’s colostomy bag.

(v) Louise Dorothy Williams

Louise Dorothy Williams was a district nurse who had attended the deceased’s home on four occasions between January 1998 and March 1998. On one of those occasions she entered the house through the back door. She said, however, that she usually entered through the front door, which had a security door which was opened with a key, and another door. She had met the applicant at the deceased’s home on two occasions and she was aware that the applicant changed his father’s colostomy bag although she had never observed him doing so. Louise Williams regularly drove past the deceased’s home and frequently saw Maria Russo in the front yard. She said that she drove past the house on Saturday, 18 April 1998, and saw Maria Russo in the front yard at about 1.00pm.

(vi) Catherine Elizabeth Hoskin

Catherine Elizabeth Hoskin lived in Mahon Avenue, Altona North, next door to the doctor’s surgery on the corner of Mahon Avenue and Blackshaws Road. She gave evidence that she knew the deceased by sight, but did not know their names. She knew their son, the applicant, and had spoken to him.

Ms Hoskin said that some time before the killings she had seen the applicant enter the house via the front door in Mahon Avenue, and that: “Well, I don’t know whether he had a key or not, but I never see the elderly couple around and he just went in”. In cross-examination she was shown photograph 6 in Exhibit B which depicts the security door fitted to the front door way of the deceased’s house. She said that she did not believe the security was there on the occasion that she observed the applicant enter the house.

(vii) Barry Anthony Walmsley

Barry Anthony Walmsley was a plasterer who lived in Altona North. He gave evidence that between 17 and 20 April 1998 he was working in Mill Road, Altona North and drove each day to work by the same route past the deceased’s home on the corner of Blackshaws Road and Mahon Avenue. He said that he recalled seeing an elderly lady in her front yard at some time between 9.00am and 10.00am in the morning during that weekend.

In his statement to police, he had stated that he saw her on the Sunday morning, but in his evidence he said: “Well, I’m sort of not convinced myself, to be honest with you, it could have been the Saturday morning”.

(viii) Peter Grigoriadis

Peter Grigoriadis had known the applicant for some 20 years and lived in a nearby suburb. They were friends. He said that he was in the habit of seeing the applicant once or twice a fortnight when the applicant used to visit his home. He said that he did not know where the applicant lived and he did not know that he was married. But he knew where the applicant’s parents lived at the corner of Blackshaws and Mahon Avenue.

Mr Grigoriadis stated that he had a conversation with the applicant about money some time before the killings. Asked the details, Mr Grigoriadis said:

“That he [the applicant] needed some money, for whatever reason, I don’t know what it was, and from memory it [was] roughly about $15,000. He said his parents wouldn’t give it to him and then I said to him, at the end of the day it’s all yours anyway, so – and I think his reply – because he always answers things, ‘Yeah, I know, I know’”.

Mr Grigoriadis also gave evidence of another conversation about two weeks before the killings. He said that he was at his home with George Kanaris when the applicant visited. He stated that on that occasion he heard the “tail end” of a conversation between the applicant and Mr Kanaris, in which the applicant said something about the applicant’s parents, and Mr Kanaris said to the applicant that he “shouldn’t say that,” but that he did not hear the conversation leading up to that comment.

In cross-examination on the terms of that conversation, Mr Grigoriadis conceded that he had discussed it with Mr Kanaris, who had told him some things that had been said in conversations between the applicant and Mr Kanaris, and that it was difficult to sort out whether he heard things from the applicant or from what Mr Kanaris said about them.

Mr Grigoriadis said that he then saw the applicant during the weekend of the killings when he was driving past the applicant’s parents’ home on 18 April 1998 “pretty close to five o’clock.” He saw the applicant in the middle of the front yard and Mr Grigoriadis said that he had honked the horn and the applicant had waved back.

He next saw the applicant on 21 April 1998, two days after the killings were discovered, when the applicant visited him at his home. He said that at that stage the applicant appeared “okay” and did not seem distressed and that he had told Mr Grigoriadis that his parents had had a bad habit of leaving the doors open.

In cross-examination Mr Grigoriadis agreed that the police had later asked him to help with the investigation, and had supplied him with a small tape recorder to record conversations with the applicant. He said that he had recorded conversations with the applicant on two occasions and that the applicant did not say anything to suggest that he was involved in the murder of his parents and denied that he was involved.

(ix) George Kanaris

George Kanaris had known the applicant for between 15 and 20 years and had seen him at Peter Grigoriadis’ home on a number of occasions prior to the killings. He said that on one such occasion, about two weeks before the killings, he had a conversation with the applicant in the garage of Mr Grigoriadis’ house while he was sanding down part of a car. The topic of the conversation was about making money. The applicant said he needed some money. Mr Kanaris said that he handed the applicant a piece of sandpaper and offered him some work sanding the car to earn some money. The applicant declined the offer, saying: “no, there’s got to be an easier way of doing it.” They talked then about their parents. Mr Kanaris’ father had cancer as did Mr Russo senior and they talked about the burden of looking after them. The applicant told Mr Kanaris he was sick and tired of looking after his father because it gets a bit of a burden. The applicant said: “He just wanted to make some money?”, and Mr Kanaris said: “Go and see your dad and get some money”, “and he goes, ‘I have but he wouldn’t give it to [me]’ and he also said something about 15 grand, he needed 15 grand or 11 grand.” The applicant specified an amount, which as best Mr Kanaris could remember was $11,000 or $15,000. The conversation continued and the applicant “was saying that his old man was old and all that and he hasn’t got much time left and … something about bashing his parents or something to that regard”. Mr Kanaris told the applicant: “you can’t think of things like that”. Two days after the killing the applicant told Kanaris not to talk to the police and seemed “pissed off” and “anxious” and “hyper”.

In cross-examination, Mr Kanaris agreed that he had made two police statements and he conceded that he had not used the word “bashing” in his first statement but rather had described the conversation as one in which the applicant made a remark which stuck in his head and made him turn around and look at the applicant. “It was something to do with his parents” and Mr Kanaris said to the applicant: “how can you think of things like that.” He said that the applicant had complained that it was a burden going up and down looking after his parents. He said that the applicant was always coming and wanting money.

In further cross-examination Mr Kanaris said that two days after the killing the applicant was at Mr Grigoriadis’ home again and had asked Mr Kanaris whether he had spoken to the police. Mr Kanaris replied that he had not, and the applicant said: “Don’t talk to them”. Mr Kanaris asked: “Why?”, and the applicant replied: “What we spoke about”.

Pressed as to what it was that had led him back to the police to make a second statement, Mr Kanaris replied “guilt”. There was then this exchange:

COUNSEL: Guilt? --- Guilt. I was calling me Mum and Mum wanted me to go, so I ended up finally going.
COUNSEL: It was guilt, was it? --- There was a suggestion that it - look. Because we spoke about it two weeks prior to the murders. He spoke about bashing his parents or something. That was mentioned, we were talking and then blah, blah, blah. And then two weeks later it happens, and I didn’t think – yes, I didn’t think much of it, but then thinking and thinking and putting everything together.”
(x) Robert Francis Horne

Robert Francis Horne lived in Blackshaws Road, Altona North, next door to Gaetano and Maria Russo. They had been neighbours for 10 to 15 years and knew the applicant as a fairly regular visitor.

Mr Horne said that on Saturday 18 April 1998, he was out for most of the day and that he returned at approximately 6.00pm. He noticed then that the deceased’s lights were on at the house, and that that was not unusual. He made and ate dinner until 7.30pm and then watched football on television. At 9.00pm he went outside again, and saw the lights were still on next door, and that the back door was open, but he did not really take much notice of it. At about 11.00pm he went outside again, and saw that the lights were still on and the door was still open, which on that occasion he thought was a little unusual because he said that the deceased usually retired for bed before that time and turned off the porch light. He said there was no set time at which they went to bed but that they would usually be inside and shut the door between 9.00pm and 10.00pm.

Mr Horne said that on Sunday 19 April, 1998, he went outside at approximately 6.00am and noticed that everything was the same as it had been the night before: the lights were still on and the door open. He thought that was unusual because they usually got up between 7.00am and 8.00am, although that could also vary.

(xi) Brendan John Bettess

Brendan John Bettess lived in a nearby suburb. He said that on 19 April 1998 the applicant arrived unexpectedly at his house at approximately 12.50pm with his son Guy. Before that day Mr Bettess had not seen the applicant for approximately two to three months. He said that they had a conversation in the driveway for 30-45 minutes, focussing on a 1970 Ford Falcon utility which Mr Bettess had recently purchased for just $800.

In cross examination Mr Bettess said that he had never seen the applicant wearing Blundstone boots. He also said that he was later asked by the police to approach the applicant and say to him that he had been observed throwing away a bag, which Mr Bettess did, but that the applicant had answered: “I don’t know what you are talking about”.

(xii) Jason Mark Kindred

Jason Mark Kindred lived in a block of flats across the road from the deceased’s house. He said that on Sunday 19 April 1998, he was returning home when he noticed a car parked outside the house at 348 Blackshaws Road. He said that he saw it there at approximately 4.30pm, although it was possible that it was one or two hours earlier. He described the car as a blue Holden Premier, and he said that he had seen the car in the area a couple of times before. He identified it as being the same car as was shown in Exhibit B, photograph 6, which was a photograph of the applicant’s car. In cross-examination he acknowledged that the photograph showed that the car was a Kingswood, not a Premier. In re-examination, he stated he had believed the car was a Premier because it had Premier hubcaps on it, which it did.

(xiii) Nicolas Paul Roder

Nicholas Paul Roder was a MICA paramedic with 12 years’ experience. He was dispatched via radio on Sunday 19 April 1998 to the deceased’s address. He received the call at 7.30pm, and he said that it took him 7 to 10 minutes to reach the scene. Another ambulance was already at the house when he arrived. The applicant appeared distressed.

Mr Roder stated that the scene upon his arrival was as depicted in the police photographs. He confirmed that he saw a deceased male in the position as depicted in photograph 23, just inside the kitchen eating area, and saw a deceased female in the position as depicted in photograph 170, in the backyard adjacent to the back steps. In his opinion it appeared as if the deceased had been dead for between 12 and 24 hours. He recalled quite vividly that the deceased female’s face was covered.

(xiv) Senior Constable Cameron Tullberg

Senior Constable Tullberg was stationed at Altona North police station. On 19 April 1998 at approximately 7.55pm he received a message via Intergraph to attend at the deceased’s address. He and Senior Constable Stovell were the first police to arrive and ambulance officers were already in attendance. He said that Detective Hill from Altona North CIB was also at the scene. Senior Constable Tullberg said that he began to secure the scene whilst Senior Constable Stovell and Detective Hill went inside the premises. He placed tape around the outside of the premises, and commenced an attendance log. He remained at the property until 11.00pm.

(xv) Detective Senior Constable Alan Henry James Hill

Detective Senior Constable Hill gave evidence that he arrived at the premises at approximately 8.00pm, and found Senior Constables Stovell and Tullberg in attendance together with four ambulance officers. He said that he observed the applicant outside the premises, and that he appeared upset and was being comforted by ambulance officers. He entered the premises and saw a deceased in the kitchen area. He did not touch anything. He contacted specialist squads to attend the scene and delegated duties to police personnel in attendance.

(xvi) Brendan Stovell

Mr Stovell, formerly a constable of police, gave evidence that he was on divisional duty with Constable Tullberg on Sunday 19 April 1998. They arrived at the scene at 7.55pm. He saw the applicant seated at the rear of an ambulance and spoke to him briefly. Constable Tullberg said that the applicant told him he had arrived at about 20 minutes to 8.00pm in his blue Holden Kingswood sedan for a routine visit and that he had been trying to contact his parents during the day by telephone but there had been no answer. The applicant said that he entered the house because he had keys, and that he had only touched the phone, that was all.

Mr Stovell entered the premises through the front door, and observed a deceased male on the kitchen floor as portrayed in photograph 24 of Exhibit B. He also observed a deceased female lying up against a set of back steps with her face covered by a dress or a piece of cloth as depicted in photograph 171. He said that he and Detective Hill left by a gate not going back through the house.

(xvii) Rocco Tony Cipriano

Rocco Tony Cipriano gave evidence that he had known the applicant for about 20 years, since they were teenagers. He attended the applicant’s wedding to Michelle Russo in 1989, after which the applicant and his wife moved to Laverton. For some time thereafter Mr Cipriano continued to see the applicant two or three times a week but he said that they had drifted apart in the months prior to the killings.

Mr Cipriano said that he knew that the applicant was retrenched from the railways and that after his retrenchment he did not find work again. He said the applicant met his girl friend, Jenny Rinon, before separating from his wife. The applicant told Mr Cipriano of his separation a few months before the murders, and said: “He gave Michelle the house and the car and the only thing he has got is his car”. Mr Cipriano said money was not a topic of conversation between the two of them: “Just it would have been good if their parents helped them out a bit more”. On a couple of occasions the applicant had said something about being short of money. In relation to his parents, the applicant had said: “They were a hassle, that’s what he said, they were a burden”. The applicant had said his father was dying of cancer.

Mr Cipriano said that he on Sunday 19 April 1998, he received a telephone call from the applicant at approximately 4.00pm. “Yes, he called me by phone … He said to me ‘What did you do last night?’ I said, ‘I went to the Carousel.’ And I said, ‘What did you do?’ He said to me, ‘I’ve no money, I just chilled out, stayed home’. He said that at 7.55pm the applicant telephoned again: “[He] said to me, ‘Roc?’. I said, ‘Yeah’. He said to me, ‘I just found my mum and dad dead. You’re my brother, man. I’ve got no brothers and sisters.’” Mr Cipriano said he was attending a Greek Easter celebration in Avondale Heights at the time, and he left the party to attend Blackshaws Road. He arrived at about 8.30pm, at which point: “it was all taped up, and he was there on the nature strip; he grabbed me, gave me a quick hug and let go”. “We didn’t sort of say much, he didn’t say much to me. His wife arrived, Michelle, and I got there first and she went to run in and he screamed and pulled her, just pulled her back into her own car in the back seat and then he said to me, ‘Let’s jump into your car’. And then he just said to me, ‘I can’t believe it, how I found them’”.

Mr Cipriano and the applicant were both taken to the Altona North police station to make statements. Mr Cipriano said that while they were waiting on the nature strip outside the station, the applicant asked him to call Jenny Rinon. He was asked then whether there was any conversation about money and he said that there was. Asked the details, he said:

“He said to me I should have grabbed the rest of the money because the coppers are going to grab it from some box – that’s all I remember.”

Mr Cipriano said that he visited the applicant at Jenny Rinon’s house the next night, “I think it was that [next] night,” and that:

“…as soon as I walked in we sat down at the kitchen table and he had his cassette player, the radio playing on that, and he had his phone and her phone already next to the cassette player, I had mine on the table, he grabbed mine and put it next to the cassette player…the volume was already up.
I said to him ‘what’s going on’, I said – I said, ‘your parents don’t get killed for nothing’, I said and he goes ‘probably some junkie in the area’.
And he said, oh, he goes, ‘let’s go down the road and have something to eat – no good to be here’.”

Mr Cipriano said that on the way back from getting the pizza the applicant was having a conversation with Jenny Rinon in the car and:

“When she said to him ‘what’s going on Len’ he just put the volume up on my stereo in the car, flat out.”

Mr Cipriano said that in November 1998 he was asked by police to speak to the applicant with a tape recorder. He was given false documents, including a bail document, which made it appear that he had been charged as an accessory over the murder. He visited the applicant, with the tape recorder and documents, and suggested to the applicant “that he had implicated [the applicant] in something that [the applicant] had no involvement in whatsoever” to which the applicant said he didn’t know what Mr Cipriano was talking about, and that the police were bluffing. Mr Cipriano agreed in cross-examination that he believed at the time that he was a suspect himself and that he had been put under a fair bit of pressure by police to attempt to obtain admissions from the applicant.

(xviii) Soula Dimitriadis

Soula Dimitriadis lived next door to the deceased, the side of her property adjoining the rear of the deceased’s property. Six years before their death, she had been involved in a dispute with Mr and Mrs Russo about a chimney, and that had involved the council and threats of legal action.

She gave evidence that the deceased were hesitant to admit people to their home. Mrs Dimitriadis said that the deceased: “never leave the door open”.

Ms Dimitradis stated that on Saturday 18 April 1998 at about 5.00pm she was outside and heard voices coming from the Russo’s house. She recognised the voices as belonging to the applicant and his parents. She said the voices were raised at first and after that they came down a little and then that they went up again. She said the voices were not calm voices and that she could not understand what they said because they were speaking in Italian. Mrs Dimitriadis said that she went inside at 6.00pm, and did not hear any noises from the Russo’s house after that time.

On Sunday 19 April 1998, she woke at 7.30am. Normally she said she would hear Mr or Mrs Russo in the morning. But on that day she did not hear anything.

About a week after the killings, Mrs Dimitriadis saw the applicant at the house as she was walking by. Although they had not spoken for six year he called to her and said that: “he wanted to come over to my place to apologise to my son for the trouble the parents caused and he said, ‘my parents are old, they come from village, and my mother she is stupid, because she keeps leaving the doors open’.” She said that she was in shock “Because the lady never leaves the doors open.”

(xix) Giovanni Noto

Giovani Noto was a friend of the deceased Gaetano Russo and had known him for over three years before his death. He said that he had been to the Russos’ house on four or five occasions and on quite a number of occasions had collected Gaetano Russo to take him to the Italian club. Mr Noto said he never saw other visitors at the house. When he went to the house, he either knocked on the door or went through the side gate, which was closed but had a latch.

(xx) Dr Matthew Lynch

Dr Lynch was the a pathologist who performed post mortem examinations on both deceased. He described the injuries to Maria Russo as consisting of a number of lacerations to her head and injuries to her face suggestive of blunt trauma. The back of her head showed separate linear and splitting-type injuries, typically produced by a blow with a reasonably heavy object such as a walking stick. The injuries to her face consisted of damaged skin with bruising and splitting and significant breaks of the bones underneath, consistent with her face being pushed against something heavy such as a concrete step. Mrs Russo had fractures of her skull at the back and front, involving her right eye and cheekbone, and breaks of some ribs and one of the bones that made up the voice-box. Dr Lynch determined that the cause of her death was head injuries, and that her death was probably a rapid process. He identified a minimum of 10 blunt impacts. He estimated she had been dead for between one to four days, although such estimate was imprecise.

Dr Lynch described the injuries to Gaetano Russo as consisting of extensive splitting type injuries suggestive of blunt trauma to the head. He also had injuries to his chest and defence-type injuries to his upper limbs. One of Mr Russo’s injuries was a tram-track bruise, which is typically produced by a blow with something long and cylindrical and smooth, such as a walking stick. Dr Lynch formed the view that there were a minimum of 18 impacts or separate blows. The deceased had extensive rib fractures on the right side of his body. Dr Lynch determined that the cause of Mr Russo’s death was head injuries and that the time of death was similar to that of Maria Russo. Dr Lynch was not able to say who of them died first.

In cross-examination he said that depending on the position of the person who struck Mr and Mrs Russo, they may or may not have had blood on them. He agreed some of Mr Russo’s rib injuries may have been produced by him falling against the coffee table.

(xxi) Sergeant Christopher John Paulet

Sergeant Paulet, of the Crime Scene Unit of the Victoria Forensic Science Centre, was the crime scene examiner. He located seven bloodstained footprints in positions which he identified. The location of the shoe impressions were cross referenced to the photographs in a chart which was tendered. The footprints were found in the hallway, kitchen, back bedroom, and back door entrance. The shoe impressions located in blood from the hallway were identified as being similar to a Blundstone brand boot, in a size approximately between a size 8 and a size 10, but most likely a size nine. Further shoe impressions were located in dust. Of those impressions, one was similar to a Blundstone. The other was similar to an Italian brand of shoe called CP brand, in a size between 8 and 10. In the kitchen area, Sergeant Paulet observed the body of a male deceased [the applicant’s father] lying on the floor, with his head adjacent to the bench and his legs adjacent to the doorway. There was a pool of blood around the deceased’s head and what appeared to be a smear drag mark on the north side of the deceased that led to a pantry cupboard. Adjacent to the smear marks, Sergeant Paulet observed a wooden walking cane.

Sergeant Paulet later inspected the pantry in the kitchen. He observed blood stains on the floor of the pantry and on the second shelf. On the top shelf of the pantry, he located a safe. There were blood smears on the inside and outside of the safe.

In the lounge room, Sergeant Paulet observed “bloodstaining in the form of spatter to the northern side wall glass sliding doors to both the architraves and the adjacent wall areas and floor”. He also observed the glass top of a coffee table on the floor. There was blood under the glass top table. He noted a number of pieces of wood scattered over the floor area, that appeared to be part of a walking stick.

In the bathroom, he found a small area of staining to the light switch and blood smears or marks on the floor. He also observed staining to the light switches in bedrooms 1, 2 and 3. Bedrooms 1 and 3 appeared to have various items strewn around the room that had been pulled out of the cupboards.

Upon examination outside the premises, he observed the body of a deceased female [the applicant’s mother] lying on the ground, with the back of her head against a brick wall of a porch attached to the rear of the house. Her face was covered with a piece of material. He found some pieces of broken walking stick near her body. He examined the gate area and found a blood smear on the metal gate just above the latch.

He examined the laundry and found a fan box which had blood staining on the lid. He also examined the applicant’s car, but found nothing of value, and no blood or human tissue.

(xxii) Senior Constable Andrew John Rutherford

Senior Constable Rutherford was stationed at the Fingerprint Branch of the Victorian Forensic Science Centre, where he had been so stationed for 11 years. He identified and developed one fingerprint on the underside of the glass coffee table in the loungeroom. That fingerprint was of the deceased, Maria Russo. On 28 April 1998, he received a number of items for examination, including a piece of broken wood that came from a walking stick, a small safe and an empty exhaust fan cardboard box. He developed a fingerprint that was visible in blood on the top lid of the exhaust fan box. This fingerprint belonged to the deceased, Gaetano Russo, who it seemed had blood on his fingers when he touched the box.

(xxiii) Nigel Murray George Hall

Mr Hall was a forensic scientist at the Victoria Forensic Science Centre and attended 348 Blackshaws Road, Altona North on 19 April 1998 to interpret blood staining patterns. He later performed DNA testing on a number of blood samples taken from the scene.

He described a large blood stained area on the carpet and timber floor of the lounge room, drag marks on the carpet and spattered blood on the wall and floor of the entrance hall. He considered that Gaetano Russo was struck in the loungeroom and lay in a position to allow the blood to pool. He subsequently either crawled or was dragged into the kitchen area, where he lay for some time. There was a lack of spatter blood in the kitchen, indicating Mr Russo probably did not receive any more blows whilst in the kitchen.

Mr Hall also noted blood staining around the deceased, Maria Russo, either on the steps close to her head or on the brick wall adjoining the steps. There was no other blood staining either leading away or leading to where she was found, indicating Mrs Russo had been assaulted in the vicinity in which she was found.

Analysis of blood on the inside of the safe revealed a mixture of DNA from Maria and Gaetano Russo, and the applicant could not be excluded as a contributor to the mixture. Analysis of blood staining on the shelf of the pantry also revealed a mixture of DNA from Maria and Gaetano Russo, from which the applicant was excluded as a contributor. Analysis of blood staining on the walking stick handle found near Maria Russo revealed the presence of the DNA of Maria Russo and one other unidentified person; Gaetano Russo and the applicant being excluded as contributors.

(xxiv) Senior Constable Kylie Joy Chisholm

Senior Constable Chisholm was stationed at the Sunshine Criminal Investigation Unit. She attended the scene at 348 Blackshaws Road, Altona North on Sunday 19 April 1998, arriving at approximately 8.00pm. She said that she entered the property through the front door, which was unlocked, and she identified the state of the premises upon inspection as corresponding with what is shown in the crime scene photographs in Exhibit B. When rain started to fall Senior Constable Chisholm placed a plastic over the body of Maria Russo.

Senior Constable Chisholm had a conversation with the applicant on the nature strip at the front of the premises in Blackshaws Road. She said that the applicant was at that point with his ex-wife, Mrs Russo, and his friend, Rocco Cipriano. During the conversation, the applicant told Senior Constable Chisholm that “he arrived at his parents home at approximately 11.00am on Saturday 18 April [1998] and stayed until approximately 1.00pm. During that time both his parents had lunch”. The applicant also told Senior Constable Chisholm that on Sunday 19 April 1998:

“He tried to contact them numerous times both in the morning and afternoon of 19 April, but couldn’t raise a response from them. He said that at about 7.40pm on Sunday evening 19 April he arrived at the premises. He said he used a side gate [to enter the premises]... He had to undo some wire that was securing the gate to open it. He then entered the house via the eastern side door.”

He told Senior Constable Chisholm that he discovered the body of his deceased father in the kitchen, then rang his ex-wife Ellen Michelle Russo and asked her to call an ambulance on his behalf.
(xxv) Detective Sergeant Stephen Barry White

Detective Sergeant White was stationed at the Homicide Squad and on 19 April 1998 at approximately 9.45pm he attended the Altona North police station in company with Detective Sergeant Smith. Outside the station, he observed the applicant having a conversation with Rocco Cipriano. Inside the station, he had a conversation with the applicant in which the applicant gave a version of the facts similar to the one he had given to Senior Constable Chisholm. According to Detective White’s notes of the conversation, the applicant said:

“He drove around to the house at around 7.30pm. The lights were on and he pressed the button and he was calling out. He went down the side, couldn’t open the gate. He opened up the gate and saw the front door open. Last saw Mum and Dad between 11.00am and 12.00 noon yesterday. He then walked in and saw the old man there lying on the kitchen floor, blood everywhere. He rang Michelle from home to ring an ambulance. Looking for Mum in backyard. Slumped next to rocks. Too scared to touch her. Rang Michelle and asked her to ring the police as well. Waited for an ambulance to front. Rang Rocco from house… Mum and Dad always arguing, no enemies. Had a look around. All the house upside down. Haven’t touched anything. Not that wealthy.”

On Tuesday 21 April 1998, Mr White attended 348 Blackshaws Road, and conducted a search of the premises. He located $3,500 in the main bedroom, jewellery in the cupboard of the second bedroom, and a wallet containing $55 cash and personal documents in the self-contained flat at the back of the property.

(xxvi) Detective Senior Sergeant Ronald William Iddles

Detective Senior Sergeant Ronald Iddles of the Homicide Squad attended 348 Blackshaws Road, Altona North, at 9.20pm on 19 April 1998, in company with Detective Senior Constable Ross. At about 11.00pm, he attended the Altona North police station, and at 11.45pm had a conversation with the applicant in which the applicant gave a somewhat different version of the facts to the one he had given to Detective White. The applicant gave his address as 348 Blackshaws Road, Altona North, and said that he last stayed at the deceased’s address about a week ago. When asked about his movements on Saturday 18 April 1998, the applicant said that he had attended the deceased’s house at about 9.00am to change his father’s stoma, but his Dad was not at home. He returned to the house at 6.00pm, and put a light on in the shed. He and his mother talked in the shed, he did not have dinner there but he may have told a female detective he had a bite there. He spent Saturday night at Jenny’s house. They had KFC for dinner and watched the football on television. When asked what he had been wearing that night, the applicant said “Probably wearing these clothes, maybe another pair of black pants.”

Mr Iddles said that the applicant was asked about his movements on Sunday 19 April 1998, and said: “Today I rang home a few times. Michelle came home. No one was picking up the phone. I went home and went to the side gate. I jumped over the fence as the gate was tied up with a piece of wire. I saw the back door was open. I walked into the kitchen, saw my father on the floor. I freaked out. I could see he had been bleeding internally. I walked around the house looking for Mum. I didn’t walk in any blood. I rang Michelle and told her to ring an ambulance. Then I went around the back of the house and found Mum lying there. I then rang Michelle and told her to ring the police.” Mr Iddles seized the applicant’s shoes and examined them, but they did not correspond with any of the footprints found at the scene of the killings.

(xxvii) Detective Senior Constable Graham Ross

Detective Senior Constable Graham Ross interviewed the applicant formally in the early hours of Monday 20 April 1998. During that interview the applicant gave a different version of the weekend of 18 and 19 April 1998. He said he visited his parents at between 9.00am and midday on 18 April 1998 then spent the afternoon with his children at Alma Street. He returned to his parent’s house just before it got dark, and returned to Jenny’s house at approximately 7.00pm. On Sunday, he visited his friend, Brendan, and returned to Alma Street at 3.00pm. He tried to ring his parent’s during the afternoon, and at 7.00pm went to the house to check on them because they had not been answering the phone. During the course of that interview the applicant put forward a theory that the murders had been committed by a robber and he mentioned that his parents kept a bit of money here and a bit of money there and he said that his parents’ safe was kept in the pantry. But he said nothing about touching the safe on that occasion. He claimed that the only thing which he touched was the telephone.

Eight hours later at 10.30am the applicant telephoned Detective Iddles and stated that he had given his wrong movements for Saturday 18 April 1998. A second interview was conducted with the applicant on 21 April 1998 at 1.30pm in order to clarify the applicant’s movements. During that interview, the applicant read from an exercise book that on Saturday 18 April 1998 he had travelled to Buanger with Michelle to collect their children and that he did not go to see his parents that day until 6.00pm, at which time he stayed for about 20 minutes and after that he had gone back to Jenny Rinon’s, had KFC for dinner and then gone to Swanston Dock to view the industrial blockade.

(xxviii) Sergeant Gordan Andrew Hynd

At 7.30pm on Saturday 25 April 1998 Sergeant Hynd received a telephone call from the applicant. The applicant said that he had been to his parent’s house and as a result he had recalled that when he found his father’s body, he saw the safe lying on the floor and that he picked up the safe and put it back in the pantry. He said the safe was open, and that he picked it up because he did not want it to be in the way of ambulance officers when they arrived.

(xxix) Detective Senior Sergeant Iddles

Detective Senior Sergeant Iddles said that a re-enactment interview was conducted on 27 April 1998. During that interview the applicant said that he did not have keys to the house, and did not try to enter via the front door. He said that when he arrived at the house, he used his mobile telephone to ring his parent’s home phone. He then entered the house through the side door which he found to be open. Once inside he found the safe on the kitchen floor and climbed up the pantry to put the safe back on the top shelf, in order to clear the way for the ambulance officers. He said that he moved a cardboard exhaust fan box into the laundry as that was also in the way. When asked when he had first recalled moving the safe and box he said it was when he visited the house. Asked then when he had visited the house since the killing, he said only once, on Sunday, 26 April 1998. Asked then why he had not told Mr Iddles on 20 April 1998 that he had moved the safe and the fan box, he said:

“Well, I didn’t even thi-, think - I didn’t even think of it, you know what I mean? My mind was just freakin’ out so much. It was just freakin’ out so much, my mind. I didn’t even think of that. I was just thinkin’ of them so much, you know.
When did you recall the – the fact that you did find it on the floor and placed it back in the cupboard?
Well, when I come back to the house. Like, I’ve been getting images – images. I – then I though, like, there was ants around and that, you know – there was ants, this and that , you know. I’ve been racking my brain now to try and just think – to try and recall things.”

On 5 May 1998 the applicant contacted Mr Iddles, to say that he had heard of a number of things from friends around the area which he wished to disclose.

On 6 May 1998 a fourth interview was conducted and during that interview the applicant stated that he had heard there had been a few druggies in the area and that they had now gone quiet. He said that his parents would have been upset if they had known he and Michelle were separated. He agreed that his parents had assisted him financially. He also said that, although he was unemployed, he sometimes told his parents he was working so that they would not worry about him.

On 13 July 1998 a fifth interview was conducted with the applicant, in the presence of his solicitor. During that interview the applicant stated as follows:

-He had been to a shoe shop on Racecourse Road, Flemington, but could not recall the last time he was there, nor when he picked up the business card found in his vehicle.
-His father purchased a unit at 55 Monash Street Sunshine for between $70,000 and $80,000, in which he and Michelle had lived.
-His father purchased the house at 104 Alma Avenue, Laverton six years ago.
-The money from the sale of the unit was deposited into the applicant’s bank account, and some of it was used to holiday in Queensland with Jenny Rinon.
-His parents purchased the applicant’s blue car. The applicant denied otherwise asking his parents for a loan of money.
-He stated he had a key to the garage door of his parent’s house, but did not have keys to the front or back door, or to the self contained unit at the rear of the property.
-He denied asking his parents for a loan of $15,000.
(xxx) Detective Senior Constable Graham Grant Ross

Detective Senior Constable Ross was present during the conversation between the applicant and Detective Senior Sergeant Iddles at the Altona North Police Station, and corroborated each of the records of interview conducted by Detective Senior Sergeant Iddles.

On 21 April 1998 he attended the crime scene and located the cardboard box in the laundry and $15 cash in a purse under the sink. Jenny Rinon’s flat was extensively searched, but no blood stained clothing or boots were found. Nor were any large sums of cash on the applicant’s person or any premises associated with him. A listening device was placed at Jenny Rinon’s flat, but no admissions were heard on tape. An undercover policeman was brought into the investigation, and the applicant told the undercover officer that it could not have been him who killed his parents.

What the evidence established

The striking thing about the Crown case is that there was nothing in it which directly connected the applicant with the killings. One might have expected at least some forensic evidence or the discovery of some of the money or some other thing which physically tied him to the killings. Looking at the evidence as a whole, however, it appears to me that there are a number of things which it established clearly. First, it is plain from Messrs Kanaris and Grigoriadis’ evidence that the applicant let it be known before the killings that he was under financial pressure and in need of funds which his parents had refused to provide. That same evidence also established that the applicant was likely to be the sole beneficiary of his parent’s estate and it was something of which he was aware. The applicant told Mr Kanaris that he was tired of having to run around after his parents – it was a burden – and he was considering or had considered bashing his parents. Two weeks later they were found bashed to death with their money gone from the safe, and two days after the killing the applicant told Mr Kanaris not to talk to the police about what he had said when they had spoken.

Secondly, the evidence of Messrs Kanaris and Soula Dimitrakis established that that the applicant was at his parents’ house at about 6.00pm on the evening of Saturday 18 April 1998 and indeed he admitted that he was there at the time. The evidence of Soula Dimitriakis established that there was an argument or conversation conducted in raised voices in Italian on that occasion.

Thirdly, the evidence of Dr Burke and Mr Roder established that it is probable the deceased were killed between 12 and 24 hours before they were discovered, which would mean at or after the time that the applicant was at their home on the evening of Saturday 18 April 1998.

Fourthly, the evidence of Mr Horne established that it is probable that nothing untoward happened after 7.00 pm on Saturday 18 April 1998.

Thus it is open to conclude that the killings occurred sometime between about 6.00pm and 7.00pm on the evening of Saturday 18 April 1998, shortly after Soula Dimitriakis heard the argument taking place.

Fifthly, the evidence of Mr Bettess and Mrs Russo relating to the events of Sunday 19 April 1998 suggest that the applicant may have been stalling for time. The concern which he expressed to his wife about the welfare of his parents appears to have been feigned. He had telephoned on numerous occasions before she returned to the house and was supposed to have become increasingly concerned that there was no answer. Yet it was only 10 to 15 minutes drive down to their house to check on them and he had been driving around all Sunday afternoon looking to kill time with Bettess. Watching the videotape of his record of interview of 20 April 1998 and reading the transcript of it conveys the impression that he was anxious to anticipate a question of why he had not gone to see his parents when he was driving around on Sunday afternoon. He volunteered that he did not go there because his son did not wish to go.

Sixthly, there is then the conversation with Mr Cipriano outside the police station on 19 April 1998, only hours after he is supposed to have discovered his parents killed by a robber and to be greatly upset by their loss, in which he told Mr Cipriano that he should have grabbed the rest of the money because the coppers are going to grab it from some box. Plainly enough the safe was on his mind, and if he had seen it open next to his deceased father it would have been a powerful indication that his father had been killed by a robber. Yet the applicant said nothing about seeing it open on that occasion.

Seventhly, he gave a version of the facts to Senior Constable Stobel and Senior Constable Chisholm in which he admitted he had a key to the premises. Later he changed that and said that he did not. He initially told police that he went to his parents’ home on Saturday morning 18 April 1998 and stayed for lunch. Later that evening in his interview with Mr Iddles he said that he had arrived on 18 April 1998 at 9.00am and found that his father was out walking and had left shortly afterwards without seeing him, before returning at 6.00pm that evening to change his father’s stoma. Then on 21 April 1998 he altered his story again when he told Mr Iddles that he did not go to his parents’ house on 18 April 1998 before about 6.00pm.

Eighthly, when Mr Cipriano went to visit him at Jenny Rinon’s flat on the evening of 20 April 1998 the applicant took Mr Cipriano’ mobile phone and the other mobile phones and put them near the cassette player with the radio turned up and then in the car, when asked by Jenny Rinon what was going on, he turned up the car radio to high volume.

Finally, on 21 April 1998 he told Mr Kanaris not to talk to the police and on the same day he changed the version of events he had given police about his movements on Saturday 18 April 1998. Five days later he revealed to police that he had moved the safe after finding it open near his father, and put it back in the pantry and “chucked” the fan box in the laundry, and the only reason he could give for moving it was to get it out of the way of ambulance officers. But the safe and fan box were no larger than a small attaché case. They would not have impeded ambulance officers. And, contrary to what he told police he was not caused to remember that by going back to the house, because he had not been back to the house at the time he told Detective Hynd that he remembered finding the safe open and putting it away.

In summary, therefore, and despite the absence of evidence directly connecting the applicant with the killings, the evidence established the motive, opportunity and consciousness of guilt for which the Crown contended.

Specific attacks on the Crown case

Counsel for the applicant also attacked the strength of the Crown on several specific bases. So far as opportunity was concerned, he said, the Crown’s case rested on the assumption that the murders occurred between approximately 6.00pm and 9.00pm on Saturday the 18 April 1998. In his submission, that should have been rejected or at least discounted as involving a circular process of reasoning that, because the applicant was seen at the Crown Casino at 9.00pm the killing must have occurred before 9.00pm, despite the fact that the forensic evidence was that death could have occurred during a period concluding well after 9.00pm.

I do not accept that contention. The Crown’s position was that it was very possible that the killing occurred at a time when the applicant could have committed it. There was no circularity of logic involved in that. The fact that the applicant had opportunity does not establish beyond reasonable doubt that he exploited it. But it was not suggested that it did. The evidence of opportunity was put forward to be considered in conjunction with the other circumstances of motive, lies, post-offence conduct and the admission made to Mr Cipriano, as capable in aggregate of supporting an inference of guilt beyond reasonable doubt.

So far as motive was concerned, counsel for the applicant submitted that there was no direct evidence that the applicant was in pressing financial need - to the contrary, he said, the evidence showed that the applicant had joint ownership of the premises at 104 Alma Street Laverton (which he later assigned to his former wife) – and, although there was evidence that he had been asking his parents for money, and in particular a sum of between $11,000 and $15,000, in counsel’s submission it was vague.[15]
[15] Kanaris Tr 244, 252 : 31 – 253 : 28, Grigoriadis Tr 266.

I reject that contention also. I do not think that the evidence was vague. The applicant had a half interest in the matrimonial home, but he had separated from his wife, apparently because of Jenny Rinon, and he had in effect handed over the family home and car to his wife. In the circumstances he could have had little expectation of retaining much if any of his equity in the house upon dissolution of their marriage. Mr Kanaris said in chief and in cross-examination that the applicant told him he was in need of $11,000 for which he had asked his father and that his father had refused him. He also gave hearsay evidence, in answer to questions asked in cross-examination, that the applicant had sought $15,000. The hearsay evidence could not take the matter any further, but it is significant that nothing was said which detracted from the force of the evidence that the applicant spoke to him of a sum of $11,000. Mr Grigoriadis also gave unchallenged evidence that there had been a conversation at his premises in which the applicant had said that he needed some money, roughly about $15,000 and that the applicant had said that his parents would not give it to him.

Counsel for the applicant submitted that the evidence of consciousness of guilt was at best equivocal, and he referred again to what he had said about the applicant’s statement that it was not until the day before the interview that he remembered he found the safe on the floor and picked it up and put it in the cupboard.

I accept that submission up to a point. Standing alone, the so-called evidence of consciousness of guilt does not prove a great deal. But, as has already been observed, it needs to be considered in the context of the totality of the circumstantial case. If the applicant were present at his parents’ home at or about the time of the killing, and he was in need of financial assistance which his parents had refused him, and he was tired of running after them, and after their deaths it was discovered that he told untruths about matters which tended to connect him to the crime scene at the time of their deaths, it is open to infer that he told those lies because of a consciousness of having been involved in their deaths.

Counsel for the applicant also referred again to the concession which Mr Cipriano was said to have made in cross-examination that when the applicant said he wished he had taken the rest of the money he was referring to money he had seen at his parents’ home before they were killed. That appears to be so. But that was explained to the jury, and in any event the fact that the applicant may have been referring to moneys of which he knew because of earlier visits does not make the admission any less pertinent.

Finally, counsel for the applicant referred to three aspects of the evidence which he submitted pointed affirmatively to the innocence of the applicant:

·First, the fact that the plasterer, Barry Walmsley, gave a statement to police contemporaneously with the killings in which he swore that he had seen Mrs Russo, deceased in her garden on Sunday 19 April 1998, the day after the killings were supposed to have occurred.
·Secondly, samples of composite DNA from which the applicant was excluded as a donor, located at the scene of the killings, items 8, 12 (i) & (ii), on the handle of a walking stick and another piece found next to Mrs Russo. Since the walking stick was likely to have been the murder weapon, it was submitted that those samples supported a reasonable possibility that someone other than the applicant was the killer.
·Thirdly, shoe impressions left by the Blundstone-type boot found both in dust and in blood which suggested that the killer wore such boots. There was no evidence that the applicant owned boots of that kind, and some evidence given by his estranged wife and one of his friends, Brendan Bettess, to suggest that he did not.

Counsel submitted that in light of that evidence the verdicts ought be set aside and judgements and verdicts of acquittal entered, on the basis that it was not open to a jury to be satisfied of the applicant’s guilt

I do not accept that submission. By the time of the trial, Mr Walmsley said that he could have been mistaken. He had done several trips back and forth and it may have been on the Saturday that he had seen the applicant’s mother in the garden. The significance of the DNA evidence was clearly explained to the jury and there is no reason to doubt that they comprehended it. And the shoe impressions were equivocal. All that can be said is that there were a number of impressions found and that some of them did not and others could not have come from the applicant. It is true that he was not found or seen in possession of Blundstone boots, but assuming that he did kill his parents on the night of Saturday 18 April 1998 and was wearing the boots, he had the best part of 24 hours to get rid of the incriminating evidence.

It may be that this was not the strongest circumstantial case that may be imagined. But, as authority makes plain, where a court of criminal appeal is asked to conclude that a verdict is usafe or unsatisfactory, the court must ask whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. In my view it was. Here, the applicant had motive and opportunity, he did lie about his involvement and given the nature of the injuries inflicted on both deceased it is inherently unlikely that they were inflicted by a burglar disturbed in the course of a theft.

It must also be borne in mind that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and that the jury alone has had the benefit of having seen and heard the witnesses. Consequently, even if this court were to entertain some doubt as to the guilt of the accused, but the doubt were capable of being resolved by jury’s advantage in seeing and hearing the evidence, the court should conclude that no miscarriage of justice occurred.[16] Despite the submissions of counsel I think that to be the case here. There are some doubts born of the fact that no money was ever discovered and that there was no forensic evidence to link the applicant to the crime scene (other than the estimated time of death taken in conjunction with the evidence that he was present at about that time). But this is a case in which depended to a very considerable extent on the assessment of the creditability and reliability of Messrs Kanaris, Grigoriadis and Cipriano. There were also five records of interview of the applicant and all of them were videotaped and shown to the jury. While each of those pieces of evidence could have been interpreted in a number of ways, I consider that it was open to the jury with the

natural advantages which it possessed over a court of appeal to interpret them in a fashion which was unfavourable to the applicant and ultimately such as to establish his guilt beyond reasonable doubt.

[16]M v The Queen (1994) 181 CLR. 487 at 494, Jones v The Queen (1997) 191 CLR 439 at 451 and 468; and Fleming v The Queen (1998) 197 CLR 250 at 255-6; see also Weiss v The Queen (2005) 80 ALJR 444; (2005) 158 A Crim R 133 at[41].

It follows that, notwithstanding the weaknesses in the case which counsel has identified, I consider that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty of the murders of his parents.

Conclusion

I would dismiss the application.

NEAVE, JA:

I have had the advantage of reading in draft the reasons of Nettle, JA. For the reasons that his Honour gives, I agree that the application for leave to appeal against conviction should be refused.

KING, AJA:

I agree that this application should be refused for the reasons advanced by Nettle, JA in his judgment.

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[2006] VSCA 297

20 December 2006