R v Spina

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No. 243 of 2003
	v.
NICOLA SPINA

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JUDGES:	EAMES and ASHLEY, JJ.A. and HOLLINGWORTH, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 August 2005
DATE OF JUDGMENT:	22 December 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 319

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Criminal Law – Multiple counts on one presentment – Murder, false imprisonment, threat to kill – Whether judge should have severed presentment – Whether miscarriage of justice, as the trial played out, because no severance – Relationship evidence – Threats of violence – Reports of violence – Crown reliance upon such evidence only as bearing upon state of mind of victim, and thus the improbability that she would have attacked the applicant – Whether propensity direction required -Crown reliance on post-offence conduct to negate defences of self-defence and provocation in respect of alleged murders – Whether Crown position ambiguous – Whether judge should have directed that such conduct was not relied upon as evidencing consciousness of guilt – Crown reliance on particular alleged lies as evidencing consciousness of guilt – Edward’s direction given in respect thereof – Whether the Crown had also relied upon other alleged lies as evidencing consciousness of guilt – Whether jury left uninstructed about those lies – Crown case reliant upon jury drawing inferences as to applicant’s state of mind at the time of killings – Whether circumstantial evidence direction required – Relevance of circumstance that no submission or exception taken at trial in respect of any of the errors alleged in the conduct of the trial – No errors revealed.

Criminal Law – Sentence – Life sentence – Non-parole period of 25 years – Whether head sentence or non-parole period manifestly excessive – Manifest excess not shown.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R.E. Carlin	Mr S. Carisbrooke, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. with Mr P.J. Matthews	John Di Santo & Associates

EAMES, J.A.:

I have had the advantage of reading in draft the reasons of Ashley, J.A. and for the reasons given by his Honour I agree that the application for leave to appeal against conviction should be dismissed. I desire to add some remarks only as to grounds 3 and proposed ground 6 with respect to the conviction application.

The learned trial judge dealt with the relationship evidence on several occasions during the trial. After evidence had been given by a number of witnesses the judge gave a direction to the jury as to the evidence of witnesses concerning conversations with Maria Spina about her husband and his treatment of her. The judge reminded the jury that the prosecutor had said that this evidence could not be used to prove that the applicant actually did or said the things alleged, but was relevant only for the limited purpose of assisting them in determining her state of mind at the relevant time.

At the outset of his charge the judge repeated that direction, but also said that the evidence of the relationship between the accused and the two deceased victims “is also relevant to both counts on the issue of self-defence and provocation”. When directing the jury on the elements of provocation he directed the jury that they ought consider the history of the relationship and in particular the history of disputes and reconciliations between the couple. The jury would have understood that to be again related to the probable state of mind and actions of Maria Spina.

In the course of his summary of evidence in the charge the learned judge introduced the relationship evidence by telling the jury that it provided part of the context in which the jury could view the evidence as to what transpired on the night of the killings. His Honour fully summarised the relationship evidence, and did so under two headings, statements made by the accused to others about his feelings towards his wife and statements made by his wife to others about “her feelings and state of mind shortly prior to the events in question”. Included in the summary was the assertions made to others by the deceased that the applicant on a prior occasion or occasions had placed a rope around her neck.

His Honour then directed the jury, yet again, that the evidence of witnesses as to what Maria Spina said to them, “about things that were allegedly done and said by the accused”, could not be used as evidence that he had in fact said or done any of those things, because it was hearsay. His Honour directed that the evidence of what she had said about her husband was relevant for the limited purpose of its relevance in disclosing her state of mind and bearing on the probability that she would have attacked her husband as he claimed.

Several distinct complaints are now made about suggested omissions in the directions as to the use of relationship evidence. In the first place it is said that the judge should have directed the jury that “the commission of the offences could only be proved by the evidence relating to them, not the relationship evidence. Secondly, the jury should have been given a propensity direction, not to reason that by reference to the relationship evidence he was the kind of person who would have committed the offences charged. Thirdly, the judge should have told the jury the evidence was not to be limited to the state of mind of the deceased woman with respect to the question whether she would have been too frightened to have attacked the applicant, but it could establish that she was a bad-tempered, resentful person who was likely to have attacked him.

Not one of those suggested directions was sought at the trial. The first direction would be wrong in law, since the jury were entitled to have regard to non-hearsay relationship evidence in deciding whether they had a reasonable doubt as to the defences raised in the case[1]. Such a direction would also have focussed attention on the hostile statements about his wife made by the applicant to others. The third direction was merely a matter of factual argument, a matter appropriately addressed, perhaps, by defence counsel in his address (as it was), but not requiring a direction by the judge. The direction given did not prevent the jury making such use of the evidence. It was on the second suggested direction that attention focussed on appeal.
[1]R. v. Anderson (2000) 1 V.R. 1, at 12 [30]-[31], per Winneke, P.

Assuming that the relationship evidence comprised by the statements made to others by Maria Spina was capable of supporting propensity reasoning then it would ordinarily be the case that a propensity direction would be required to be given by the trial judge: R. v. Anderson[2]; R. v. Toki[3]. However, as Chernov, J.A. held in R. v. Mateiasevici[4], such a warning is not always necessary. His Honour cited with approval the following statement of McHugh, J. in BRS v The Queen[5]:

“If evidence revealing a criminal or reprehensible propensity is admitted, the trial judge must give the jury careful directions concerning the use which they can make of the evidence. If the evidence is admitted for a reason other than reliance on propensity, the judge must direct the jury that they can use the evidence for the relevant purpose and for no other purpose. In some cases, the judge may need to be more specific. He or she may need to direct the jurors that they cannot use the evidence for an identified purpose. If the evidence is admitted because the Crown wishes to rely on the accused’s propensity as an element in a chain of proof, it is especially necessary that the judge give the jurors clear directions as to the manner in which they may use the propensity evidence”.

[2]At 14 [34], per Winneke, P.

[3](2000) 116 A.Crim.R. 536, at 547 [78], per Howie, J.

[4][1999] 3 V.R. 185, at 193, [28]-[29].

[5](1997) 191 C.L.R. 275, at 305.

Chernov,J.A. held[6] (stating that his conclusion was in accord with statements of Southwell, A.J.A. in R. v. T[7]) that a case where it might be appropriate that a propensity direction not be given was one “where the warning would prejudice the accused rather than serve his interests, and where in all the circumstances, the omission to give the propensity warning would not result in a miscarriage of justice”. In my opinion, this, too, was such a case.
[6]Mateiasevici, at 194 [31].
[7](1996) 86 A.Crim.R. 293, at 299.

Counsel for the accused, as did counsel on the appeal, accepted that the relationship evidence was properly admitted in this trial. Plainly, the nature of the relationship between the couple and also between the applicant and his wife’s family, was of relevance: see Wilson v. The Queen[8]; R. v. Anderson[9]. It was not admitted for its impact as propensity evidence; the prosecutor expressly disavowed any use other than for the purpose allowed by the judge in his directions. From the point of view of defence counsel the direction given that the evidence from the wife could not be used, at all, as proof of the truth of any words or actions Maria Spina attributed to her husband was of considerable benefit to the applicant. Were the jury to apply propensity reasoning to that evidence then they would be doing so in express disregard of the judge’s very clear and repeated directions that the evidence could only be used as to Maria’s state of mind and could not be used as establishing the truth of her assertions. In my opinion, if the jury were to ignore those directions then the more likely misuse of the evidence would have been that it rendered more probable the fact that the applicant assaulted his wife and mother[10], even strangled them, but those propositions were not in dispute.
[8](1970) 123 C.L.R. 334, at 338-340, per Barwick, C.J., at 344-5, per Menzies, J.
[9]At 12-14 [30]-[33], per Winneke, P.
[10]The applicant told police, however, that he acted in self defence when he assaulted them.

I consider that there was very little likelihood that the jury would have reasoned that by virtue of the relationship evidence attributed to Maria Spina he was the kind of man who might have killed the two people when not acting in self-defence or under provocation. Although the wife’s evidence of attempts being made to strangle her with a rope and of his threats to use a gun were undoubtedly harmful to the cause of the applicant, if the jury accepted the direction then they had no evidence of the truth of those allegations, thus the impact of the evidence was confined to its relevance to the state of mind of his wife.

In my view the absence of a request for a propensity direction is explained by one or both of the factors that any danger of the jury engaging in propensity reasoning seemed to be non-existent or very small, or else, if that factor was seen to have any significance at all, as reflecting a sensible tactical decision of defence counsel. The direction that had been given would have been undermined by a propensity direction. Having directed the jury that they could not treat the evidence of allegations made to others by Maria Spina as any evidence, at all, of the truth of those allegations, it would have been quite confusing to then direct the jury that they could not use that evidence as demonstrating his propensity to commit the crimes charged. That is so because such propensity reasoning could only have been employed by the jury if they were to disregard the general direction, and were to treat the complaints by Maria Spina as evidence of their truth. In addition, a propensity direction would not only have highlighted the statements attributed to the wife, it might have invited closer attention to the statements attributed to the applicant.

The applicant had been very fortunate that the judge did not invite the jury to use the relationship evidence concerning the statements attributed to him by witnesses, when assessing the self-defence and provocation defences. As Mr Tehan conceded, the Crown would have been entitled to rely on those statements for that purpose. It is apparent that the suggested danger of propensity reasoning, which has now received such attention on appeal, was not apparent either to counsel or the judge in the atmosphere of the trial. In assessing whether a direction was required it is important to have regard to the manner in which the trial was conducted by counsel, which gives the clearest indication of the live issues on which directions were required[11]. A decision by experienced counsel not to seek a direction is a pertinent factor for an appeal court in assessing whether a direction was required in order to avoid a miscarriage of justice[12]. The fact that the decision taken by counsel was one based on a rational tactical decision intended to advance the interests of the accused person at trial points strongly to the fact that there had not been a miscarriage of justice[13].
[11]See Doggett v. The Queen (2001) 208 C.L.R. 343 at 346, per Gleeson, C.J.
[12]R. v. Arundell [1999] 2 V.R. 228, at 247-250, per Callaway, J.A.
[13]See TKWJ v. The Queen (2002) 212 C.L.R. 124, at 128 [8], per Gleeson, C.J., at 133 [27]-[28], per Gaudron, J., at 151 [81] per McHugh, J.; Ali v. The Queen (2005) 214 A.L.R. 1, at 4 [7].

As to proposed ground 6, not all cases that, in part, are susceptible to circumstantial reasoning are cases that require a circumstantial evidence direction, particularly when, as here, only a small part of the evidence constitutes circumstantial evidence[14]. This was a case in which the jury were invited to consider a range of evidence which the Crown said ought to have led to satisfaction of guilt beyond reasonable doubt, drawn as an inference from its totality[15]. If it lent itself, in part, to circumstantial evidence reasoning then it did so only in the “strands in a cable” sense. I agree with Ashley, J.A that a circumstantial evidence direction could have added nothing in this case. In a case where the jury had to consider, among other directions, the law relating to self-defence and provocation it would have served no purpose to have added, unnecessarily, another complex direction. The direction was not sought by counsel at trial, and sensibly so. The directions that were given as to proof beyond reasonable doubt and the drawing of inferences were adequate in the circumstances.
[14]Shepherd v. The Queen (1990) 170 C.L.R. 573, at 578 per Dawson, J.
[15]See Knight v. The Queen (1992) 175 C.L.R. 495, at 502, per Mason, C.J., Dawson and Toohey, JJ.

Finally, I turn to the application for leave to appeal against sentence. Had I been the sentencing judge in this case I might not have imposed the sentences of life imprisonment and fixed the non-parole period of 25 years that his Honour imposed. This was, however, a serious case involving the killing of two people, for which the applicant had shown no real remorse and as to which he did not have a claim to mitigation by virtue of pleas of guilty[16]. In addition, he engaged in the dangerous conduct embraced by the other counts. The sentencing judge, unlike myself, had heard all the evidence and the submissions on sentencing. It is significant that defence counsel, who also heard all the evidence, did not seek to argue that life sentences were not open to the judge in the circumstances.
[16]Compare with R. v. Quarry [2005] VSCA 65.

It can not be said that the sentences imposed here were manifestly excessive nor that his Honour’s findings on sentencing displayed sentencing error. Notwithstanding the mitigating factors raised on behalf of the applicant, I have

concluded that the sentences were open to the judge to impose and the application for leave to appeal against sentence, both for these reasons and those given by Ashley, J.A., should be dismissed.

ASHLEY, J.A.:

Statement of the case

At the end of a 10 day trial which commenced on 3 April 2003 and concluded on 16 April 2003, in the course of which the Crown called 33 witnesses and the defence none, the applicant, Nicola Spina, was found guilty of the murders of Maria Spina and Giovanna Persico (Counts 1 and 2), the false imprisonment of Faustino Persico (Count 3), and making a threat to kill the last-mentioned person (Count 4).

On 14 August 2003, having earlier heard a plea, Smith J. sentenced the applicant to life imprisonment in respect of each of the murder convictions, and to four years’ imprisonment in respect of each of the other offences. He made no order for cumulation. He fixed a non-parole period of 25 years.

Now the applicant seeks leave to appeal against both conviction and sentence. He does so upon grounds which, as to the former application, are grossly at variance with the grounds stated shortly after trial.

The grounds set out in a Notice of Application for Leave to Appeal dated 3 September 2003 were as follows:

“1.The verdicts of guilty delivered by the Jury on the various counts were unsafe and unsatisfactory.

2. The sentence was excessive in all the circumstances.”[17]

[17]The second ground was later the subject of a discrete application for leave to appeal against sentence, being re-expressed to contend that the sentences were manifestly excessive.

By order of the Registrar dated 8 August 2005 – that is, more than two years after conviction, and virtually two years after sentence – the applicant was granted leave to add the following grounds referable to the conviction appeal:

“2. The trial of the applicant upon Counts 1 and 2 miscarried because there was no severance of Counts 3 and 4.
3.The learned trial judge erred in failing to properly direct the jury upon the use and misuse of relationship evidence.
4.The learned trial judge erred in failing to properly direct the jury upon the use to be made of the applicant’s out of court statements in respect to self-defence.
5.The learned trial judge erred in failing to properly direct the jury upon the conduct of the applicant at the time of the offences, lies and consciousness of guilt.”

Later still, on 18 August 2005, the applicant’s solicitors gave notice of intention to add a further ground referable to the conviction appeals:

“The learned trial judge erred by failing to give the jury directions upon circumstantial evidence.”

That application to amend was pursued on the hearing of the substantive applications. The Court reserved its decision until after full argument.

At the hearing, the applicant abandoned reliance on Ground 4. That left remaining Grounds 1, 2, 3, 5 and (if permitted) 6, of which the four last-mentioned in substance assert that Smith J. erred in his conduct of the trial. In the case of Grounds 3, 5 and 6 the error is said to lie in his Honour’s failure to properly direct the jury.

It is a singular fact that no submission was made for the applicant at trial that the judge had erred in any one of the ways now alleged[18] by Grounds 2, 3, 5 and 6 of the conviction appeal. Yet the applicant was represented at trial by very experienced and, by common consent, able counsel. Consistently with his experience and expertise, he stoutly propounded his client’s position by cross-examination of Crown witnesses, by making submissions concerning legal issues, and by making a skilful final address. Yet it is implicit in the grounds now pursued that he was unaware of, or silent in the face of, the learned trial judge committing not just one, but a series of errors to his client’s disadvantage in the conduct of the trial.
[18]Or, in the case of Ground 6, sought to be alleged.

So to state the matter implies, as appears to me to be the case, that Grounds 2, 3, 5 and 6 represent the results of a trawling exercise by counsel newly engaged, counsel remote from the trial process, and thus remote from the forensic decisions which must be made by counsel at trial. In R v Shiers[19] I described such a sequence of events, in the context of alleged failure to give an Edwards direction, as “painfully familiar.” I also said that –

“Circumstances such as I have described give particular focus to criticism of a legal system which permits a convicted person to agitate, on appeal, an issue not raised at trial. Such criticism yields, however, to the critical consideration that a conviction should not be permitted to stand if a defect in the trial process led to a miscarriage of justice. Further, the sting of any criticism is ameliorated by the fact that, in considering the merits of a matter newly raised, the way in which the trial was conducted is by no means irrelevant .”[20]

[19](2003) 7 VR 174 at 196, [81].

[20]At 196 – 197, [82]. See also the observations of Eames JA at 195 – 196 [77].

The approach that, in considering the merits of a matter newly raised, the way in which the trial was conducted is by no means irrelevant is, in my opinion, pertinent to the disposition of this appeal.

What was in issue at trial; and what was not

With respect to Counts 1 and 2 on the presentment, it was not in issue that the applicant had killed the two women. The first of them, Maria Spina, was his wife. The second, Giovanna Persico, was his mother-in-law. Neither was it in issue that he had killed them at his home in Mulgrave sometime between Friday 19 and Sunday 21 October 2001. Neither again was it in issue that he had intended to kill them.[21] What was in issue was whether the Crown had negated defences of self-defence and provocation, concerning each of which matters the learned trial judge gave careful and correct directions to the jury.
[21]Although he had denied such an intention in his record of interview.

With respect to Counts 3 and 4, the Crown relied upon events said to have occurred at the applicant’s home on the afternoon of Monday 22 October 2001. It alleged that the applicant requested Faustino Persico (conveniently “Faustino”), the brother of Maria Spina and thus the applicant’s brother-in-law, to attend the premises on a pretext; and that, once Faustino had arrived, he detained him for approximately four hours by barring his exit and by threatening him with death whilst armed with a loaded shotgun.

Concerning the alleged unlawful detention, it was not in dispute that Faustino attended the applicant’s home on the afternoon of 22 October in response to the applicant’s request, and that he was present there for about four hours. Neither was it in issue that in the course of the afternoon one of the two men had taken hold of a shotgun owned by the applicant. The issues at trial were whether the applicant had detained Faustino; and, if he had, whether he had done so deliberately, intending to compel Faustino to remain at the premises.

Concerning the alleged threat to kill, the issues alive at trial were first whether the Crown had proved the making of such a threat; and second, if it had, whether the applicant had acted with a required intent.

The Evidence

Having outlined the issues alive at trial, I must say something about the evidence.

Counts 1 and 2

Only three people were present at the time of the killings – the two women and the applicant. Of the three, only the applicant was able to give an account of events. He did so in a record of interview, and by a video re-enactment, each of which became part of the evidence in the trial.

Evidence pertaining to Counts 1 and 2 was also given by witnesses who saw the applicant and the victims on 19 and/or 20 October, and by witnesses who spoke with the applicant on one or other of 19, 20 and 21 October. Again, evidence was given concerning post-mortem examinations of the two women, a medical examination of the applicant, and findings made on forensic examination of the premises and of items found in the applicant’s motor vehicle when it was intercepted in the early hours of Tuesday, 23 October 2001. I pause to say that the bodies of the two victims were also found in the vehicle at that time; and that later I will have occasion to say something about the circumstances in which the police came to intercept the vehicle at that time.

Apart from the classes of evidence to which I have so far referred, the Crown relied in respect of Counts 1 and 2 upon three other types of evidence: relationship evidence, evidence of post-offence conduct, and evidence said to evince consciousness of guilt of the crime of murder.

The lay evidence was open to more than one interpretation as to when the two women had probably met their death. Mrs Spina was not definitely seen alive after Friday 19 October. Mrs Persico was last seen alive early on the afternoon of Saturday 20 October. Certain witnesses gave evidence of seeing minor injuries to the applicant’s face on the Saturday morning. The lay evidence left open the possibility that, contrary to the applicant’s account, the women were killed at distinctly different times. In that connection there was not only evidence as to when the two women had last been seen alive, but also evidence, inter alia, of contact surprisingly not made by Mrs Spina with her niece on the Saturday, of a comment made by the applicant as to his wife’s whereabouts on the Friday night which did not accord with the fact, and the circumstance that nobody answered the door when a relative attended the home on the Saturday afternoon at about 6.30 p.m. despite there being some indication that the premises were not then empty.

If the two women had been killed at distinctly different times, the applicant’s intendedly exculpatory account of events would have been the more unbelievable. But even if it be assumed that one was killed soon after the other, the applicant’s account, in light of the forensic evidence, was utterly incredible. Putting aside relationship evidence, evidence of post-offence conduct, and conduct said to show consciousness of guilt of the crime of murder, the forensic evidence overwhelmingly demonstrated the applicant’s guilt. I should explain why that is so. I go first to the evidence of post-mortem examinations.

Mrs Spina’s body was examined on 23 October. She had been a heavy woman of short stature. Her body showed an “absolute minimum” of eight separate blows to various parts of the scalp, at least two areas of bruising of the chest region, a number of injuries to the hands, and abrasions to the neck area with bruising to the neck. Internal examination of the neck region showed a fractured larynx, a broken thyroid cartilage, and bruising to the strap muscles deep within the neck. The cause of death was manual neck compression – that is, strangulation. The examining pathologist opined that:

·    The scalp wounds were consistent with a number of discrete applications of moderate to severe force by use of a blunt object such as a billiard cue or a length of fibreglass with a rubber handle which was found in the applicant’s motor vehicle.
·    The distribution and location of the injuries was “totally inconsistent” with the deceased’s head having been hit against a wall.
·    Injuries to the left forearm and hand, and to the back of the right hand, were more likely to be defensive in character.
·    The chest bruising was consistent with the deceased having been punched, or kicked, or having fallen onto an object.
·    The abrasions to the neck were consistent with the application of a hand, or possibly a ligature or loop of material.
·    Bruising to the neck was consistent with the application of blunt force.
·    The damage to the structures of the neck seen on internal examination, including the bruising of muscles deep within the neck, would have required the application of considerable pressure, particularly having regard to the deceased’s thick neck; and certainly pressure sustained over time.
·    Almost all the injuries were caused “in life”.
·    In all, the deceased had been beaten multiple times, which may have rendered her unconscious, and then she had been manually strangled. The injuries inflicted by the apparent beating had been insufficient to cause death.

Mrs Persico’s body was examined by the same surgeon on 23 October. She had been aged 73, had been 162 cms tall and had weighed 76 kgs.

There was evidence of injuries to both sides of the face, bruising beneath a laceration to the left frontoparietal region of the scalp, several areas of bruising of the neck, bilateral petechial haemorrhages, haemorrhages of the skin surrounding the eyeballs, and injuries to the hands and wrists.

Internal examination showed pre-existing cardiovascular disease, bruising to the front left side of the scalp, fractures of the front left 4^th to 6^th ribs; and, significantly, a small amount of bruising in the strap muscle on the right side of the neck.

The doctor opined that:

·Almost all the injuries were caused “in life”.
·The injuries to the face were consistent with blunt force trauma, likewise bruising to the front left side of the scalp and the rib fractures.
·In the case of several of the injuries, what was observed was more in keeping with being forcefully hit onto a flat surface rather than being struck with a weapon or a fist or a foot.
·The injuries to the hands and wrists, involving multiple trauma, were likely to be defensive.
·The cause of death was manual strangulation, preceded by blunt trauma to the head. The head trauma fell “well short” of causing death. There was compelling evidence of neck compression both externally and internally. The external evidence was of bruising with a definite pattern, as may have been caused by a ligature. The haemorrhages of the eyeballs and surrounding skin were such as could have been caused by compression of the neck for the “minimal time” of 15 to 45 seconds; at least a minimum of 15.

I should add two matters: First, the head injuries suffered by each woman, according to the pathologist, had been apt to cause much blood flow. In the case of Mrs Persico, the doctor referred to a “spray of blood followed again by perhaps some broozing which could be forceful.” Second, in the case of neither victim was there blood in the airway, mouth, or nasal passage. That eliminated those areas as the source of bloodstains observed by the forensic biologist.

The applicant was examined by a forensic physician on 23 October. He told the doctor that his face was injured, his hand had been scratched and his hair had been pulled out.

Examination of the applicant showed a number of essentially superficial injuries, mainly in the facial region, but also on the forearms, hands and chest. There was no sign of injury to the forehead or side of the head, or of hair damage or loss. There was no swelling of the face. A brown mark on one arm was swabbed, and was found to contain Mrs Persico’s DNA.

The doctor opined that some of the facial injuries which he observed could be consistent with injuries caused by eye glasses breaking. In that connection, the applicant had mentioned, in the record of interview, that he had broken his glasses.

I turn to the evidence arising out of examination of the home and of certain articles found in the applicant’s motor vehicle. The main witness in that connection was a forensic biologist. She attended the premises on 23 October 2001, and principally inspected:

·The garage.
·The rumpus room (sometimes called “the billiard room”).
·A bedroom.
·The kitchen/dining area.
·A shower room, toilet and laundry.

The gist of her evidence – I will add a few comments – was as follows:
·There were contact type bloodstains on the floor of the garage. I comment that it was not suggested by the Crown or the applicant that either or both of the killings had taken place there.
·The rumpus room connected, although not quite directly, with the garage. At the far end of the rumpus room was a door leading into a bedroom. There were windows in one wall of the rumpus room. Facing towards the bedroom, they were in the wall on the left hand side. They terminated not far from the door leading into the bedroom. They were curtained.
·In the rumpus room, she observed bloodstains high up on the curtains. There were also numerous bloodstains of the spatter type on the wall in the short distance which separated the window from the door leading into the bedroom, also on the wall to the right of the doorway when facing it from the rumpus room, on the carpet in the vicinity of that wall, and on billiard cues at the end of the room distant from the bedroom. Some of the bloodstains on what it is convenient to call the window wall were low down. An attempt had been made to clean that wall, and the curtain, with water.
·The spatter bloodstains were most likely explained by a blunt object striking something that was bloodied.
·The bloodstains on what it is convenient to call the bedroom door wall were, at their highest point, nearly two metres above floor level.
·In the opinion of the witness, the nature and pattern of the bloodstains which she observed on the window wall were inconsistent with the head of one of the women being struck against the wall.
·The door to the bedroom opened into the bedroom, rather than into the billiard room. It opened against the continuation of the window wall. On the wall behind the door, when it was in its opened position, were numerous spatter type bloodstains, of the type that can arise from a weapon hitting a bloodied area. The witness opined that they had originated in the rumpus room and had travelled through the gap between the door jamb and the door, then striking the wall. She noted that areas of the door frame had possibly been cleaned. Nonetheless, she observed bloodstains on the door jamb extending from quite close to its top down towards the floor.
·Further along that wall, that is, travelling away from the rumpus room, there were numerous bloodstains at varying heights on the wall. Some of them were in the order of one and a half metres above floor level. Their disposition indicated, at least in some instances, that they had arced higher, and were descending as they struck the wall; whilst other appeared to have been ascending as they hit the wall, which implied, in effect, a precipitating event at close to floor level. Some at least of those bloodstains may have originated in the rumpus room, and thus have travelled a considerable distance before striking the wall.
·Two billiard cues were examined. They were in a rack fixed to the end wall of the rumpus room distant from the bedroom. They were apparently bloodstained.
·On the carpet in the rumpus room, apart from bloodstains already mentioned, there were bloodstains indicative of a body having been dragged out of the room into what was described as the foyer area.
·Further as to the bedroom, there was a dressing table adjacent to what I have called the bedroom door wall. It had a fabric skirt. Spatter bloodstains were observed on the skirt. Apparently they had originated low down. There were also bloodstains on articles on the top of the dressing table, and indications that bloodstains had been cleaned from the carpet in the vicinity of the table and the bedroom doorway.

The witness also gave evidence of bloodstains observed in the other areas of the home, including the shower and laundry areas. It is unnecessary to refer further to her evidence about those matters.

The witness gave evidence about the results of DNA analysis. The spatter stains on the window wall and the curtain matched Mrs Spina’s DNA profile. Likewise the stains on the skirting board of that wall, the stains on the bedroom door wall in the rumpus room, the stains on the continuation of the window wall in the bedroom, and the stains on one of the billiard cues. Some of the stains on the skirt of the dressing table matched Mrs Persico’s DNA profile, and others matched Mrs Spina’s profile.

I turn to items taken from the applicant’s motor vehicle: a pair of gloves, a pair of shoes, lengths of rope, and an item with a rubber handle and a wood or fibreglass shaft; and to a wooden baton found at the home.

The gloves were bloodstained. Some of the stains matched Mrs Persico’s DNA profile, as did spatter bloodstains on the shoes. Two of five lengths of rope were bloodstained. Stains on those ropes matched Mrs Persico’s DNA profile. No bloodstains were detected either on the implement with the rubber handle, or the wooden baton.

The witness reported on DNA analysis of fingernail scrapings taken from each of the women. There was “no indication of any DNA there from any other individual” – although this, said the witness, did not exclude the possibility that the fingernails had come into contact with a second person.

It is convenient, next, to refer to the applicant’s record of interview. It provided the foundation for his case, which it was for the Crown to negate, that he had acted in self-defence, or under provocation.

The gist of the applicant’s statement was that he had picked up Mrs Persico on the Saturday at his wife’s request. They had been out of the home when his brother in law, Giuseppe, had come at about 6.30 pm. He had gone to bed before the two women. He had been awakened by one of them, probably his wife, punching his head. The two women proceeded to punch, bite, pull and scratch him. They were saying things such as they were going to get him this time. He was in fear of his life. He got out of bed. They chased him around. He started pushing (one of) the women against the wall. He pushed so hard that he did not know what had happened. He smashed the heads of both women into the continuation in the bedroom of what I have called the window wall. He did so to defend himself. He did not intend to kill them. He did not know how many times he hit them. He was “like a Mad Max . . . that mood.” Mrs Persico collapsed quickly. He kept going with his wife. The whole incident in the bedroom, beginning with the attack upon him, took place over 15 minutes.

The applicant denied hitting the women with weapons. He did not acknowledge strangling either of them.

After they were dead, he said, he threw them onto the ground. Later he took their bodies to the garage, cleaned up the blood, and washed his clothes.

He moved the bodies into his vehicle on the Monday night, he said. He was taking them to Springvale Cemetery when his vehicle was stopped by the police on the early Tuesday morning – although, as it turned out, he did not have with him any tools to dig a grave.

As to the past, he admitted, although his marriage had been “beautiful”, that there had been problems with it. He said that he and his wife had hit each other on occasions, but asked who did not have problems these days. He denied that there had been any problems between him, his wife and mother in law on the day of the incident. He particularly blamed Faustino for causing problems in the marriage. Faustino had been “too close to [his] wife.”

In the course of the interview the applicant drew attention to what he said were “all the scratches here . . . and bruises here and here too.”

Later on 23 October the applicant participated in a video re-enactment of the fatal incident. At one point in the re-enactment, having denied that he used either billiard cue as a weapon, he may have said that he recalled them falling as he was struggling. The import of this remark was not altogether clear.

Towards the close of the re-enactment the applicant twice referred to self-defence, and said that he was not guilty of the murders of which he had been told he would be charged.

The forensic evidence showed that each of the women had been beaten, and then strangled. Strangulation required a considerable application of force for a period of a minimum of 15 seconds. Mrs Spina’s neck was thick. The extent of necessary force must have been greater in her case. As to strangulation, the applicant’s account was silent. Then, as to the beatings, the forensic evidence was damming that Mrs Spina had been struck many blows; and that the attack had occurred, in substantial part at least, in the rumpus room. Yet on the applicant’s account, such force as he had inflicted on both women had been carried out in the bedroom; and it had involved striking their heads against the wall. But the forensic evidence was inconsistent with Mrs Spina’s injuries, and probably some of Mrs Persico’s injuries, having been caused in such a way. Rather, it suggested – particularly in Mrs Spina’s case – that the women had been struck with a blunt object. Again, on the applicant’s account he had been assaulted by the two women – being punched, scratched and bitten. Yet the injuries observed by the examining physician were trivial; whilst injuries on the hands and lower arms of the women were at least consistent with their being defensive injuries.

What I have just said is not an entire account of the tension between the forensic evidence and the applicant’s account of events. But it is enough to show how difficult was the applicant’s position. To that observation I should add that the applicant’s own account of what he had done itself presented him with great difficulties in successfully raising (though it was for the Crown to negate) self-defence or provocation.

I noted earlier that the Crown relied, in connection with Counts 1 and 2, upon relationship evidence, evidence of post-offence conduct, and evidence said to show consciousness of guilt of the crime of murder. It is convenient to say something about those aspects of the evidence, not least because directions not given in respect of them are the subject-matter of Grounds 3 and 5 on the conviction appeal.

In substance, the relationship evidence:

·Disclosed long-standing domestic discord between the applicant and his wife, and between the applicant and his wife’s family.
·Detailed threats allegedly made by the applicant towards his wife and members of her family.
·Detailed allegations made by the wife that she had suffered ill-treatment at her husband’s hands – most pertinently, that he had tried to strangle her; and in one connection offered some objective evidence consistent with ill-treatment on a particular occasion.
·Detailed expressions of fearfulness by the wife with respect to what her husband might do to her.

It was not contended at trial that the relationship evidence was inadmissible. Neither was any such contention raised on the appeal. Nor again was it in doubt at trial or on appeal to what limited use the jury was invited, and entitled, to put such evidence. What was agitated on appeal was rather the proposition that the judge did not sufficiently explain permitted and non-permitted uses.

I should note how the jury was directed. The learned judge said this:

“You will recall as to that evidence what I said before, but if you bear with me I will repeat it. What you have there is the evidence of witnesses of what Maria Spina said to them about things that were allegedly done and said by the accused. That evidence can’t be used as evidence to prove that the accused actually did or said those things because if you used it in that way, it would be using the evidence for a hearsay purpose and the law does not allow that. But it is relevant for you to consider and admissible for you to consider for the limited purpose of determining what Maria Spina’s state of mind was at the relevant time. Evidence of witnesses about what she said that she believed the accused had done or had said and what she said about her feelings towards the accused can be considered by you when you consider the issue of her state of mind. You will recall that the Crown put an argument to you that her state of mind was relevant because it was highly improbable that she would have behaved as the accused alleged because her alleged attack would merely have woken and angered him. The Crown also put, as I understand it, that for someone in that frame of mind, if you accept it, it was highly improbable that she would have attacked him in the way alleged.”

His Honour’s reference to “what I said before” was a reference to a very clear warning which he had given the jury in the course of the evidence as to the limited use to which the pertinent evidence could be put.

Against that background, counsel for the applicant submitted on appeal that the direction did not go far enough. That was so for two reasons. First, the judge should have warned the jury that if it accepted the evidence it should not reason from it that the applicant was the type of person who was likely to commit the offences with which he was charged. Second, the judge should have warned the jury that if it accepted the evidence of relationship, the commission of the offences could only be proved by the evidence relating to them, not the relationship evidence. Counsel submitted that a direction should have been given in accordance with R v Grech[22].
[22][1997] 2VR 609 at 614

Developing the submissions just noted, counsel contended that the judge should have given a strong propensity direction.[23] He also submitted, in effect, that the judge had erred by not putting to the jury the applicant’s case – which was that his wife’s state of mind was that she was bad-tempered, resentful woman trapped in an unhappy marriage; and that this went to the probability that she attacked the applicant.
[23]Citing R v Anderson [2000] 1VR1 at [40] per Winneke, P.

Turning to the Crown’s reliance upon post-offence conduct, there was evidence that the applicant, subsequent to the killings, made attempts to clean up the premises, his clothing, and himself; that he attempted to take the bodies away; and that he did not contact the police. I have already referred to some of that evidence. The learned judge asked counsel for the Crown how the Crown sought to use that evidence. Counsel’s reply was that the jury could use it as being inconsistent with the suggestion, made by the applicant in his record of interview, that he had acted in self-defence.

The learned judge put the Crown’s argument this way:

“The Crown submitted that what was involved was an attack carried out with the use of unnecessary and excessive force. The Crown submitted also, as I understand it, that his behaviour afterwards in cleaning up, washing the clothing, showering himself and taking the bodies away was inconsistent with someone who believed he had acted in self-defence.”

His Honour also put fully and fairly, as I see it, the competing submission advanced for the applicant:

“[Counsel] submitted too much emphasis should not be placed upon what he, the accused, did or didn’t do after the event, for example, not ringing the police or his driving away with the bodies after cleaning up. He argued that anyone confronted with that situation, believing that they had acted in self-defence, would have had difficulty in communicating with the police and difficulty in revealing what had occurred. Counsel submitted that the matters relied on by the Crown were in fact not inconsistent with someone who believed he had killed two people in self-defence.”

According to the submission for the applicant, counsel for the Crown had addressed the jury, vis a vis post offence conduct, in an ambiguous way. The jury might have understood the prosecutor to be inviting it to infer consciousness of guilt from such conduct. The judge should have warned the jury against using the evidence in such a way.

I go to the Crown’s reliance upon particular evidence as revealing consciousness of guilt. The forensic evidence being apparently incompatible with the applicant’s account of the events which culminated in the deaths of the two women – that is, as given in the record of interview and by the video re-enactment - the Crown contended that he had lied out of consciousness of guilt of murder in describing - by words and actions – what he had done in the fatal attacks; and where they had taken place.

The learned judge gave an Edwards[24] direction in respect of the particular lies which the Crown contended for. He clearly identified them, and described the pertinent principles.
[24]Edwards v R. (1993) 178 CLR 193.

Counsel for the applicant did not object to that direction. The prosecutor submitted, however, that the learned judge had not charged the jury fully as to the lies which were relied upon; that is, that the Crown’s reliance went beyond the alleged lies to which the judge had drawn attention. After discussion, his Honour decided not to charge the jury further. That decision, by not highlighting an additional alleged lie upon which the Crown relied, was likely favourable to the applicant.

It was not suggested on the appeal that his Honour’s direction was in any way faulty, as far as it went. Rather, counsel for the applicant submitted that the Crown had relied upon still further lies and post-offence conduct as evidencing consciousness of guilt – that is, lies and conduct other than those in respect of which the judge gave an Edwards direction or decided to give no further direction. Counsel submitted that such reliance should have led his Honour to give an Edwards direction in respect of that other evidence. No such submission, it is implicit in what I have already said, was made at trial.

Counsel also submitted, particularly in the context of referring to post-offence conduct and alleged lies, that the judge should have given a circumstantial evidence direction. Of this submission, more later.

Counts 3 and 4

I have already described, shortly, the circumstances of the incident which led to the applicant being charged with the false imprisonment of Faustino, and the threat to kill that man. I should say something of the evidence in that connection, of other evidence given by Faustino, and of an asserted “180 degree turnaround” in the applicant’s defence.

Faustino gave evidence that the applicant called him at about 2 pm on Monday 22 October. The applicant asked him to come to his house that afternoon to fix a telephone answering machine. He went to the applicant’s house, arriving at about 3.40 pm. They had a drink, then the applicant left, saying that he had to get something. The applicant in fact returned with a double-barrelled shotgun. There was a plastic bottle over its end, which the applicant described as a silencer. The applicant said, in effect, that his wife and mother in law were out of the house, but would be returning. He told the witness to lie on the floor, so that when the women returned he could show them that he had killed the witness. Over a period of 3 – 4 hours the applicant refused to allow the witness to leave the premises. He pointed the shotgun at the witness. He showed the witness cartridges for the weapon. He permitted the witness to attempt - unsuccessfully of course - to contact his mother (that is, Mrs Persico) by telephone. He described the witness as his hostage. When the witness attempted to leave, at about 6 o’clock, the applicant told him to sit down, or he would let him have it; and not to make him do it, he was serious, and would blow the witness away. On two occasions the applicant made the witness terminate calls. Later, after 7 o’clock, the witness attempted to make a triple 0 call to the police. Eventually the applicant permitted the witness to leave.

Faustino was cross-examined, in part, to suggest that he had been the person with the firearm; and that, in effect, he had aimed it at the applicant. He denied those allegations.

There was evidence which corroborated Faustino’s account of the attempted telephone call to the police, and as well the attempted calls to Mrs Persico and a short-lived call to his own home.

The applicant dealt with the events of the Monday afternoon in his record of interview. He confirmed his call to Faustino, and the latter’s attendance at his home in response. He said that he had told Faustino that when the women came back he was going to kill them because he was waiting for his dinner. He, the applicant, was “so crazy still” at the time.

The applicant alternated between saying that he was angry at Faustino, and angry at what he had done. He said at one point that he had asked Faustino to come to the house in order to tell him what had happened.

The applicant also stated that he had said to Faustino that the latter should stay because he, the applicant, was so confused.

The applicant agreed that he had told Faustino to lie on the ground and pretend he was dead, so “they” – that is, the women – wouldn’t scream at him any more. Faustino, he said, had laughed. He had then told Faustino to lie on the couch, and stop laughing.

The applicant agreed that when speaking to Faustino he had the gun (which he said he had obtained from a locked place before Faustino arrived), and was pointing it at the other man. He denied cocking the pin, or pushing the weapon into Faustino’s body. He intimated that he had the weapon in case Faustino found out what had happened.

He agreed that Faustino had apparently called triple 0 and asked for the police. He had not tried to stop Faustino doing so. They were, he said, both laughing at the time.

When Faustino left, he said, they shook hands.

Pausing for a moment, it is clear that at no stage in the interview did the applicant suggest that Faustino had found and taken the gun, or had pointed it at him; and yet Faustino, as I noted a few moments ago, was cross-examined to that effect. It was that cross-examination which encouraged the Crown’s submission that the “180 degree turnaround” provided a very strong reason why the jury should not accept the applicant’s account, particularly concerning the events of the Monday afternoon.

Faustino gave other evidence. It was of the relationship kind, and so pertained to Counts 1 and 2. So, he gave evidence that he had heard the applicant threaten Mrs Spina “a lot of times.” He had heard the applicant say that he was going to kill her, and “fix up the whole family.” He had heard the applicant threaten his wife when he found her on the telephone, speaking to him. In August 2001 she had rung him, saying that the applicant had tried to put a rope around her neck and strangle her. She had told him, not long before her death, that she could not leave the applicant because of threats which he had made about killing members of the family.

I should mention three other matters concerning Faustino and/or his evidence. First, he was cross-examined to suggest that Mrs Spina had in fact been quite assertive; that she had “given as good as she got” in the marriage. He was also cross-examined to show that she had made improbable allegations, in effect, that her food was being drugged.

Second, Faustino gave evidence that at one stage in the afternoon, when he asked the applicant if he had had an argument with his wife, the applicant had replied:

“Ask your sister. She took all the money out of the account, the whole $5,000. Someone must have put her up to it.”

The applicant, in his record of interview, admitted saying to Faustino that his wife had withdrawn such a sum, bit by bit. That had been a long time ago. The plain implication in what he told the police interviewer was that at the time of the withdrawals he, as head of the house, had been unaware that they had been made.

Third, Faustino reported the events of the afternoon of 22 October to the police. It was that report which led to the applicant’s home being put under surveillance that night; and to the applicant being apprehended in his vehicle, the bodies also being present therein, in the early hours of 23 October.

The conviction Grounds

I go to the grounds relied upon in support of the conviction application. Ground 1 is expressed generally. That is, it addresses the convictions on all four counts. Ground 2 is specifically directed to Counts 1 and 2. Grounds 3, 5 and 6 in substance relate to the convictions on Counts 1 and 2. In argument, there was almost no discrete reference to Counts 3 and 4.

Ground 2

Ground 2 was not put at the forefront of the arguments advanced for the applicant. But logically it precedes questions of alleged misdirection, and so I address it first.

By s.367 of the Crimes Act 1958, the Rules contained in the Sixth Schedule thereto are to have effect as if enacted in the Act.

Rule 2 is in these terms:
“Charges for any offences may be joined in the same presentment if those charges are founded on the same facts or form or are part of a series of offences of the same or similar character.”
Section 372(3) of the Act vests a discretion in a trial judge to order a separate trial of different offences on the one presentment. Thus:
“Where before trial or at any stage of a trial the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same presentment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in a presentment the court may order a separate trial of any count or counts of such presentment.”
According to the submissions for the applicant, the learned trial judge should have ordered severance because:

·The events the subject of the murder counts were separate from the events the subject of Counts 3 and 4.
·The Crown contention that Counts 1 and 2 gave context to Counts 3 and 4 was very limited.
·There was significant prejudice to the applicant in his defence to Counts 1 and 2 by the introduction of Counts 3 and 4. Evidence adduced in the latter connection showed him to be a man of violence. His defence to Counts 1 and 2 was very different to his defence of Counts 3 and 4. Further, Faustino gave evidence of threats by the applicant to kill the whole family – that is, in connection with Counts 1 and 2. The events giving rise to Counts 3 and 4 showed such hostility to the Persico family as to infect the trial of Counts 1 and 2.
·Alternatively, the jury’s consideration of Counts 3 and 4 so tainted the jury’s consideration of Counts 1 and 2 that the Court should find there had been a miscarriage of justice.[25]

[25]Citing R v Demirok [1976] VR 244 at 255.

For the Crown it was submitted that

·Faustino’s evidence about the events of the Monday afternoon had clearly been admissible on Counts 1 and 2. The trial judge had given an unduly favourable direction to the applicant in that connection, for the evidence bore on the applicant’s state of mind at the time of the fatal incident. It tended to negate his defences to Counts 1 and 2. It showed a continuation of anger towards the victims; and would have entitled the jury to conclude that the applicant’s anger towards Faustino was linked to and illustrative of his anger towards his wife and other family members.
Further, the applicant said things which gave possible explanation why he had killed his wife: that is, he had expressed anger about her withdrawing money from their account unbeknownst to him, in circumstances where the evidence showed the two of them to have been materialistic, and jealous of their possessions.
·There had been no application for severance before trial. There was no such application after the prosecutor abandoned reliance on evidence led concerning Counts 3 and 4 as showing consciousness of guilt on Counts 1 and 2.
·The applicant’s counsel had in fact relied on evidence adduced on Counts 3 and 4 to undermine the Crown case on Counts 1 and 2 – as going in disproof of murderous intent and of murder itself.
·The joinder of counts on the presentment was within Rule 2. The rule has been widely interpreted.[26]
·In any event, the judge’s careful direction to ignore the evidence on Counts 3 and 4 when considering Counts 1 and 2 was sufficient to cure any prejudice arising from assumed wrongful joinder of all the counts on the one presentment, or wrongful failure to order severance.

[26]Citing R v Reid [1999] 2 VR 605 at 621 and De Jesus v R (1986) 68 ALR 1 at 15.

In my opinion there are a number of reasons why Ground 2 has not been made out.

First, no application to sever was made either before the evidence began, or after the prosecutor announced that she would no longer rely upon the applicant’s conduct in connection with Grounds 3 and 4 as bearing upon the applicants’ consciousness of guilt of the offences alleged by Counts 1 and 2. It is not even the situation which arose in R v Reid,[27] where what was later said to be an incomplete application to sever was made at trial in pursuance of a tactical decision by counsel. There the Court said that:

“ . . . subject to one qualification to which we will refer shortly, it is now too late for the applicant to contend that counts 8-12, 16 and 17 should have been severed: see R v Wakim [1998] 2 VR 46 per Ashley A.J.A at 50-1 and Winneke P at 53; R v Osland [1998] 2 VR 636 at 651-2; Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685. The qualification to which we have referred is this. The convictions may be set aside, even if the discretion of the trial judge in refusing severance has not miscarried, if the court is satisfied that having regard to the events which developed during the course of the trial, there has been a miscarriage of justice which could have been avoided by ordering a separate trial in relation to the counts in question: R v Demirok.”[28]

In the present case, the qualification to which the Court referred can be transposed to consideration whether the judge’s failure to order a separate trial in relation to Counts 3 and 4, as events developed in the course of the trial, led to a miscarriage of justice.

[27][1999] 2 VR 605, at 620 – 621, [160].

[28]Reid, at 620 - 621.

Second, counsel’s failure to make any such application reflected, at the very least, the reality that, for the reasons mentioned by counsel for the Crown, virtually all the evidence given by Faustino which particularly pertained to Counts 3 and 4 would have been admissible in the trial on Counts 1 and 2; and further, the likely estimation of applicant’s counsel that Faustino’s evidence pertaining to Counts 3 and 4 was capable of being turned to his client’s advantage in respect of Counts 1 and 2. It is, indeed, the fact that counsel attempted to defuse Faustino’s relationship evidence by attacking the reliability of the witness’s evidence concerning Counts 3 and 4; and that he used the witness’s evidence on the later counts to advance, in effect, the self-defence case on Counts 1 and 2. Further, the learned trial judge not only gave a clear direction concerning discrete consideration of the evidence adduced on the various counts, but he also made a comment concerning the possible relevance of evidence led in respect of Counts 3 and 4 to Counts 1 and 2 which was, I think, very favourable to the applicant. Thus:

“ . . . as I see it the evidence of the events involved in Counts 3 and 4 is not relevant to Counts 1 and 2.”

Third, it is evidently the case, as the learned trial judge told the jury – without exception being taken – that

“The evidence of Counts 1 and 2 is also relevant for you to consider when you are considering Counts 3 and 4 to this limited extent, and I emphasize that, to the limited extent that they provide the context in which to consider the evidence relating to Counts 3 and 4, both as to what the accused did or did not do and what his state of mind was or was not.”

It can confidently be assumed, having regard to counsel’s cross-examination of Faustino, and to his final address, that this aspect of the matter was in his mind. It provided another good reason why no application to sever was made.

Fourth, I consider that the circumstances were comprehended by Rule 2. Reid is a good example of the liberal interpretation of the rule, the operation of which was there explained by this Court as follows:

“ . . . it is desirable to mention that it has long been accepted that the rule should receive a liberal interpretation consistent with the policy underlying it, namely, to enable the joinder of charges which may be “properly and conveniently” dealt with together. This involves the striking of a balance between on the one hand, the need to ensure that by charging the accused with separate offences in the one presentment he or she is not thereby unduly prejudiced or embarrassed at trial by reason of evidence being led in respect of each of the charges and, on the other, the interest of the public in the efficient allocation of judicial resources, consistency in verdicts and expeditious and final litigation as well as with the convenience of witnesses.”[29]
and
“The requirement that the charges are to be founded on the same facts does not mean that the facts in relation to the charges must be identical in substance or be virtually contemporaneous. It is sufficient if the charges have a common factual origin (R. v Barrell and Wilson (1979) 69 Cr. App. R. 250 at 252-3), or if there is a sufficient connection or nexus between them (R. v Collins at 636). In order to determine if the relevant nexus exists, one has regard to the charges and, broadly, the evidence that is to be led in relation to them by the parties.”[30]
and

“It is the presence of a nexus or connection between the charges that establishes they constitute a series of such transactions or offences: De Jesus v R. (1986) 68 A.L.R. 1 at 15; 22 A. Crim. R. 375 at 389; Ludlow v Metropolitan Police Commissioner at 39-40; R. v Kray at 130-1; R. v Collins at 636; R. v Clayton-Wright [1948] 2 All E.R. 763 at 765.”[31]

[29]At 621, [163].

[30]At 621, [164].

[31]At 622, [165].

In my opinion, the offences alleged by the various counts were surely such as should “properly and conveniently” have been dealt with together. Indeed, the circumstances alleged by Counts 3 and 4 would have been almost unintelligible if those counts had been tried other than in conjunction with Counts 1 and 2.

Further, it appears to me that the charges were founded on the same facts in the sense that, at least, there was a sufficient connection or nexus between them. The evidence that was to be led either provided context for the other counts, or else was directly relevant to establishing or negating proof of an element which must be proved in another count.

I do not consider, however, that Counts 1 and 2 on the one hand, and Counts 3 and 4 on the other hand, should be regarded as forming “a series of offences of the same or similar character” for the purposes of Rule 2. See De Jesus v R.[32] But that is beside the point once it is concluded that the presentment complied with the opening part of the Rule.
[32](1986) 68 ALR 1 at 15 per Dawson J.

Fifth, had an application for separate trial of Counts 3 and 4 been made, his Honour must have approached the matter this way:

“. . . the court has the ultimate discretion under s. 372(2) (sic) of the Crimes Act to sever the presentment notwithstanding its compliance with the Act if it comes to the view that a miscarriage of justice could result which would be avoided by an order for separate trials. In exercising its discretion, it should take into account and balance the entitlement of the accused person to a fair trial without embarrassment or prejudice on the one hand, and the entitlement of the public in the efficient allocation of judicial resources, consistency in verdicts, final and expeditious litigation and witness convenience, on the other.”[33]

[33]Reid, at 622, [167].

I do not at all agree with the submission for the applicant that the introduction of Counts 3 and 4 prejudiced the applicant in his defence of Counts 1 and 2. It is true that the defences to the different counts were not the same. But, as I have already said, the applicant’s conduct in connection with the events on the Monday afternoon was in fact called in aid by his counsel in supporting the defence of Counts 1 and 2; and on one view it was capable of doing so beyond counsel’s address to the jury. Further, the suggestion that the events of Counts 3 and 4 showed murderous intent by the applicant towards the Persico family so as to infect the trial of Counts 1 and 2 was controverted by the fact that Faustino departed unharmed, and after a handshake. Again, the applicant’s conduct that afternoon was such as might well have been perceived by the jury as bizarre, and not truly indicative of any particular intention.

Sixth, I do not accept the submission that, even if severance would rightly not have been ordered had any application been made, as the trial played out there was a miscarriage of justice because there had not been severance. The evidence on Counts 3 and 4 would have been admissible on Counts 1 and 2 in any event. The applicant had the advantage of a particular comment by the learned trial judge; and as well there was a very clear direction about discrete consideration of the evidence led with respect to the various counts. Further, the applicant’s counsel in fact called in aid of his client’s defence of Counts 1 and 2, without any objection, or criticism by the trial judge, evidence given by Faustino pertaining to Counts 3 and 4; and an aspect of the applicant’s record of interview pertaining to those counts.

Ground 3

I have earlier summarised[34] the import of the relationship evidence. I have noted that the learned trial judge instructed the jury to what limited use it was able to use such evidence – both by a warning during the trial, and in his charge. I have noted also the submissions made for the applicant on this appeal concerning that evidence.
[34]See at [64].

According to the submissions for the Crown, the relationship evidence was limited in nature. Most of it was hearsay. The judge had specifically directed the jury that such evidence could not be used in proof of earlier violence by the applicant against his wife. It had been unnecessary to give a propensity direction in respect of such evidence. Neither had the evidence of threats and arguments been such as to require a propensity direction. The evidence was of argument going both ways, and of threats made in circumstances that were not taken seriously. Again, the jury had been directed in broader terms than the applicant contended was the case. The relationship evidence had been said by the judge to be relevant to the defences raised on Counts 1 and 2; and not confined to the improbability, as the Crown asserted, that Mrs Spina would have attacked her husband.

In my opinion Ground 3, for a number of reasons, has not been made out.

First, it is necessary to have regard to the way in which the trial was conducted; for it casts light on a point first agitated on appeal. With respect to Counts 1 and 2, the Crown evidently focused upon the forensic evidence; and how it gave the lie to the applicant’s intendedly exculpatory account. That was very much the centrepiece of the prosecutor’s address. The relationship evidence was relied upon, but in a limited way. Eames JA observed in argument, and I agree, that the Crown case was run in a way which was advantageous to the applicant – in that no reliance was placed upon the relationship evidence to show the applicant’s likely state of mind at the critical time(s). As the applicant’s counsel conceded in this Court, some of the relationship evidence would have been admissible against his client for such a purpose.

Second, it is another presently significant aspect of the conduct of the trial, no propensity direction was sought by applicant’s counsel. The circumstance that no such direction was sought has the appearance of a tactical decision by counsel. Had such a direction been sought and given, it was likely to have underlined, in a practical if not a legal way, the strength of the Crown case. As the trial was run, the jury was given the direction, favourable to the applicant, that it could not use the relationship evidence at all in proof of the truth of what was alleged to have been said or done.

Third, two authorities were cited by applicant’s counsel in which a propensity warning was given in respect of relationship evidence. Each, on its facts, differed much from the present case. Neither stands for the proposition that a propensity warning must be given in every case, regardless whether it is sought by counsel for the accused.

R v Grech[35] was a case involving relationship evidence in the form of evidence of uncharged acts. Callaway, JA said that it had been necessary that the jury be warned that -
[35][1997] 2 VR 609.

“(a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

(b) even if the jury accepted that evidence or part of it —
(i)the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and
(ii)they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.”[36]

[36]At 614.

His Honour went on to say, significantly, that -

“The foregoing summary is not intended as a model direction but as a guide to the substance of what was required in this case.”[37]

In that case, the relationship evidence was constituted by direct evidence of conduct of the very kind of which the accused stood charged. The need for the warning which his Honour described can readily be appreciated in such a case.

[37]At 614.

Next, in R v Anderson[38] the accused man was charged with the murder of a woman with whom he had had a volatile and sometimes violent relationship over the years. In a record of interview he gave an account of the relationship which was favourable to him. The Crown adduced, over objection, evidence that the accused man had assaulted, threatened and abused the deceased. The evidence largely consisted of accounts of attacks by the accused upon the deceased witnessed by the persons giving evidence; and of significant injuries which the accused was seen to have inflicted upon the deceased.[39] The judge gave a propensity warning. On appeal, this Court was of opinion that the relationship evidence had rightly been admitted; and that, given the propensity warning, there was no danger that the jury had used the relationship evidence impermissibly.[40]
[38][2000] 1 VR 1.
[39]See at 9, [20].
[40]See at 13 – 18, [26] – [40].

One can readily understand why a propensity warning should have been given in that case. The body of evidence which told of observed, actual violence, was, I think, apt to have had a profound impact upon the jury, such as might well have led it to reason by propensity.

Fourth, and developing my last proposition, the relationship evidence led in the present case was very different in kind to the relationship evidence led in each of Grech and Anderson. In large part it was hearsay, or hearsay on hearsay. As it pertained to Mrs Spina, it mostly consisted of reports of arguments engaged in by husband and wife, of threats by the husband, and of reports of violence. There was only a little direct evidence which was capable of corroborating the reports of violence; and the impact of the direct evidence depended, in any event, upon hearsay and/or hearsay on hearsay. As regards Mrs Persico, the pertinent evidence consisted wholly of non-specific threats of harm in hearsay form. The learned trial judge emphasized the hearsay character of most of the evidence; and emphasized also that it could not stand as any proof of the fact of what had been allegedly said or done.

Fifth, if a propensity warning was to have been given, what form should it have taken? Much of the relationship evidence was of threats, either directed to the applicant’s wife or against the Persico family at large. But Counts 1 and 2 alleged violent conduct in fact. There was, in short, a disconnection between the allegedly criminal conduct and much of the conduct in respect of which, it was claimed, a propensity warning should have been given.

Sixth, it followed on from the proposition just stated, and harks back to my second proposition, the last thing that the applicant’s counsel would have wanted was that the jury should be told, in effect, that even if it was to assume the truth of the allegations of actual violence committed against Mrs Spina, it must not reason from that to a conclusion that he was the type of person who was likely to have murdered both his wife and mother in law.

Seventh, I do not agree with the submission of the applicant’s counsel that there was a particular need to give a propensity warning because some of the conduct allegedly engaged in took place not long before the killings. The possible impact of the relationship evidence must be considered in the broad. There was a real risk that, if a suitable propensity warning could have been formulated, it would have tended to highlight – probably to the applicant’s actual disadvantage – the very matters which counsel at trial would have wished to push into the background.

Eighth, I think that there is nothing to counsel’s alternative complaint that the judge failed to put to the jury what was said to be the applicant’s case as it emerged from the relationship evidence – that is, that Mrs Spina was a bad-tempered, resentful woman trapped in an unhappy marriage, this going to the probability that she had attacked the applicant. No such direction was sought at trial, no doubt for the same sort of reasons that no propensity direction was sought. The more the relationship evidence was highlighted, the more it was likely, in a practical way, to damage the applicant’s defence.

So to conclude is not to accept the Crown’s submission that the judge directed the jury concerning the relationship evidence in broader terms than the applicant contended was the case. It is true that his Honour said that the relationship evidence was relevant to the defences of self-defence and provocation. But I think he was saying no more than that in the case of each defence the necessary starting point was that the women had attacked the applicant; and that the relationship evidence was pertinent as bearing on the probability that Mrs Spina had done so.

Ninth, it picks up between propositions already stated, it does not necessarily follow, because a direction was not sought, that failure to give a direction may not reveal error. But the fact that no direction was sought, no objection was taken, and then that a ground of appeal suddenly emerges late in the piece, is not irrelevant to the question whether there was error in fact. In the context of the present ground, I consider that those circumstances tell against there having been error.

Ground 5

I have noted already the way in which the Crown sought to rely upon certain of the applicant’s post-offence conduct as negating, in effect, the applicant’s suggestion that he had acted in self-defence; and also the learned trial judge’s summation of the way in which the parties put their respective cases.

I have noted also the applicant’s submission that the Crown’s position concerning those matters was in truth ambiguous, that the jury might have understood the prosecutor to be inviting it to infer consciousness of guilt from such conduct, and that his Honour should have given a warning against reasoning by way of consciousness of guilt in reliance upon those circumstances.

I have further noted the Crown’s reliance upon particular alleged lies – things said in the record of interview, and conduct on the video re-enactment – as going to consciousness of guilt; his Honour’s direction in respect thereof; and the applicant’s submission in this Court that the Crown had also relied upon other lies and conduct in respect of which a consciousness of guilt warning should have been given, but was not; the jury having been left “really undirected.”

In my opinion there was absolutely nothing to the submission that the jury might have misunderstood the Crown’s reliance upon identified post-offence conduct as negating self-defence, and have taken it to be an invitation to reason by way of consciousness of guilt. It is the fact that, at one point in her address, the prosecutor referred to that conduct as being “telling.” That was a word which she had used in her opening. The judge, as I noted earlier, questioned the way that the Crown was seeking to use the evidence. He referred to being “super conscious about consciousness of guilt reasoning.” Once the prosecutor had explained the matter, the judge, having remarked that perhaps he was being “a bit pedantic,” asked counsel for the applicant for his response. The response was that “it could probably be dealt with by a remark by your Honour.” And indeed it was, in detail, by his Honour explaining the respective submissions of the parties. No exception was taken to what his Honour said in the passages from his charge which I earlier set out.

That is enough to dispose of the particular argument. But I would add this: I very much doubt, on a reading of the relevant portion of the prosecutor’s address, that there was in truth any ambiguity. I think it clear that she relied upon the particular conduct in the way that she later told the judge was the case. She prefaced her recitation of the particular post-offence conduct by describing it as “telling.” When the recitation was complete, she asked these rhetorical questions, and gave this answer:

“Forced to do what? Self defence? No.”

There was another way that counsel for the applicant submitted the judge had erred in directing the jury about the post-offence conduct in question. It had to do with the more general complaint raised by the (proposed) Ground 6; that is, that the judge should have given a circumstantial evidence direction, but did not do so. I will deal with that submission, in its totality, later in these reasons.

I turn to the applicant’s contention, as I understand it, that

·The prosecutor had asserted that the applicant had told many lies, a number of which were provable by objective evidence to the contrary.
·The judge had left the jury “really undirected as to these matters.”
·The judge should have given a consciousness of guilt direction in respect of those lies.

Here counsel was referring to alleged lies[41] which were not specifically relied upon by the prosecutor as revealing consciousness of guilt.

[41]And other conduct.

It is clear enough that the prosecutor did allege, directly or implicitly, that the applicant had told many lies. It is also clear that the prosecutor relied upon particular lies as evidencing consciousness of guilt of murder.

I agree with the submission of counsel for the applicant that amongst the first class of alleged lies to which I have just referred were the following:

·The applicant telling a relative, late on the Friday evening, that his wife was at church.
·The applicant telling the interviewing police officers that he had been out on the late Saturday afternoon when a relative attended his home.
·The applicant instructing his barrister, contrary to the fact, that it was Faustino who had taken hold of the gun on the Monday afternoon.
·The applicant telling the interviewing police officers that he had picked up Mrs Persico on the Saturday morning.
·The applicant telling the interviewing police officers that his wife and mother in law had been killed in the one incident.
·The applicant telling workmates on the Saturday morning that he had suffered the facial injuries which they observed when he fell over whilst playing with his dog.

The learned trial judge referred specifically to several of those alleged lies in his charge; and as well to the Crown’s claim, generally, that the applicant had told lies other than what may be called the consciousness of guilt lies. Contrary to counsel’s submission on the appeal, his Honour directed the jury what use could be made of them:

“These are all matters for you to consider in deciding what credibility you give to the accused’s account. Was he telling lies, and if he was, was he doing so deliberately? . . . may I give you this warning, that you must be careful to avoid the illogical leap, that if you do decide lies were told, it doesn’t follow that the lie is evidence of guilt. Just because someone is shown to have told a lie about something doesn’t mean they are guilty.”

Immediately thereafter his Honour gave the Edwards direction with respect to particular identified lies – thus highlighting the distinction between the use to which the jury might put the different lies, if lies they were. It is not complained, to reiterate what I said earlier, that the Edwards direction itself was in any way incorrect in principle, or – so far as it pertinently addressed the Crown case - in its identification of particular lies. For that reason, it would be otiose to set it out.

As I noted earlier, after discussion with counsel his Honour did not re-direct upon consciousness of guilt in respect of an additional alleged lie – that is, that the applicant had not used a weapon to assault the victims – which the prosecutor had relied upon as evidence of consciousness of guilt. On appeal, failure to so direct was not specifically complained of by applicant’s counsel. Rather, this alleged lie should be regarded as falling within the group of lies concerning which, it was claimed, no real direction had been given. But, as I have said, a direction was in fact given about alleged lies other than lies identified in the consciousness of guilt context. Moreover, and again as I earlier pointed out, his Honour’s decision not to re-direct about the particular lie was, in the context of the trial, in fact favourable to the applicant.

In my opinion, it is speculative – one might say very improbable - given the very clear directions to which I have referred, that the jury may have misused the evidence of lies relied upon the Crown as going to credibility. There is, as I see it, no reasonable possibility, in the circumstances of this particular case, that the judge’s failure to direct the jury about a matter in respect of which no direction was sought may have affected the verdict.[42] The gulf between, on the one hand, the forensic evidence and, on the other hand, the applicant’s account and re-enactment, on any sensible view of things sealed his conviction on Counts 1 and 2.

Ground 6

[42]Dhanhoa v The Queen (2003) 217 CLR, at 12 [34], 13 [38] and 18 [60].

As I understand it, the threads of the applicant’s argument in respect of Ground 6 were as follows:

·First, in respect of Counts 1 and 2, the conclusions critical to convicting the applicant relied upon inferential reasoning. The killings being admitted, and intention to kill, the questions to be decided were whether the Crown had negated the defences of self-defence and provocation.
·Second, the jury should have been directed that it could not use the post-offence conduct relied upon by the Crown to infer that the applicant did not act in self-defence unless it excluded all hypotheses consistent with innocence which might explain such conduct.
·Third, it had been the Crown’s submission that the jury should infer from a combination of matters that the applicant had not acted in self-defence, or under provocation; those matters being –
* The evidence of the pathologist, the forensic physician, the forensic biologist and the police crime scene examiner.
* The post-offence conduct of the applicant.
* The lack of credibility of the applicant’s record of interview and video re-enactment in light of the forensic evidence.
Given such reliance, it was essential that a circumstantial evidence direction should have been given.
·Fourth, it followed that the direction of the trial judge as to the drawing of inferences had been quite inadequate. His Honour had not connected that direction with the Crown’s reliance on circumstantial evidence.
·Fifth, the need for a circumstantial evidence direction was emphasized in that the Crown had relied upon lies and post-offence conduct in respect of which no clear direction had been given.
·Sixth, in all, the jury should have been directed that it could only draw the ultimate inference that the applicant did not kill his wife and mother in law in self-defence or under provocation if this was the only available inference in all circumstances.
·Seventh, failure to give the direction was fatal to the conviction. The proviso to s. 568(1) of the Crimes Act 1958 could not avail the Crown.

For the Crown, counsel submitted –

·This was not a circumstantial case in the usual sense, which involves proof of the actus reus by circumstantial evidence. There was no dispute that the applicant had killed the two women. The questions for the jury were, in effect, as to his intention at the time. The directions given as to the drawing of inferences were adequate in the circumstances. What would a circumstantial evidence direction have added?
·Many of the alleged lies went simply to the applicant’s credit, and thus to the reliability of his intendedly exculpatory account. The jury had been clearly directed in that connection. The Crown’s reliance upon lies in that way did not call for a circumstantial evidence direction.

In my opinion, it was not necessary for the judge to have given a circumstantial evidence direction. Further, for his Honour to have given such a direction would have added nothing, or almost nothing, and may have been unnecessarily confusing in what was a very simple case. Certainly I do not consider that his Honour’s failure to give such a direction constitutes appellable error. I should explain those conclusions.

First, what remained at the end of the evidence was for the Crown to negate the defences of self-defence and provocation. In respect of each of those defences there was a mixture of aspects which were subjective to the applicant, and aspects which were to be assessed on an objective (or broadly objective) basis. As to the former, the questions in summary form were these: Had the Crown proved that the applicant did not in fact believe that what he had done was necessary to defend himself; and (assuming that it became relevant) had the Crown proved that the applicant had not in fact lost self control in response to provocation, and killed the women during a period of loss of control?

Second, in attempted proof of those matters the Crown relied upon evidence of facts from which the jury was asked to infer further facts. Evidence of the former kind fits the description of circumstantial evidence.[43] The circumstance that the further facts had to do with what can be described as states of mind, rather than with proof of the actus reus, does not tell to the contrary.
[43]Shepherd v The Queen (1970) 170 CLR 573 at 579 per Dawson J.

Third, against that background, this was a case in which the evidence relied upon by the Crown for the drawing of the inferences was of the “strands in a cable” or “mass of evidence” kind. It was not one of intermediate facts constituting “indispensable links in a chain of reasoning towards an inference of guilt.”[44]
[44]Shepherd, at 579.

Fourth, the Crown case was capable of leading to the relevant inferences in a variety of ways, some but not all of which involved an accumulation of evidence. For example, the jury could have reasoned from the forensic evidence alone, or from the record of interview and the re-enactment alone, that the Crown had negated each of the defences. Alternatively the jury could have put those pieces of evidence together. Alternatively again, it could have relied upon any combination of the forensic evidence, the record of interview and the re-enactment, the relationship evidence, and the alleged lies evidencing consciousness of guilt, to infer the matters going in negation of the defences. But one thing is clear: if the jury reasoned to its ultimate conclusion by reliance on different pieces of evidence, none of those pieces was an indispensable link in the chain.

Fifth, it is not the law that every piece of circumstantial evidence relied upon to prove an inference must of itself be proved beyond reasonable doubt. So far as the applicant’s submissions directly or implicitly contended to the contrary, they were not sound. The intent which is, statutory exceptions apart, an element of every crime, was used by Dawson J, in the leading judgment in Shepherd to illustrate the point. His Honour said this:

“As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.”[45]

[45]At 579 – 580. See also R v Kotzmann [1999] 2 VR 123 at 129 [16] per Callaway JA.

Sixth, it is a specific application of the preceding proposition, lies relied upon as evidencing consciousness of guilt do not necessarily require proof beyond reasonable doubt. They do not do so in a “strands in a cable” case, of which the present matter was an instance:

“In other words, a jury may reason as follows:
(a)there is a good deal of evidence, apart from the lie, implicating the accused, but it is not sufficient on its own to establish his guilt beyond reasonable doubt;
(b)applying the judge’s directions about the lie, we think it is more likely than not that the accused did tell it out of consciousness of guilt of this offence and not for some other reason but, if that were the only issue in the case, we could not be sure; but
( c) taking all the evidence together (“strands in a cable”) we are satisfied to the criminal standard.”[46]

[46]Kotzmann, at 130, [20] per Callaway JA. See also Edwards at 210 per Deane, Dawson and Gaudron JJ.

Seventh, it is not the law that a discrete circumstantial evidence direction must be given in every case where circumstantial evidence is relied upon. Particularly there may be no need in a straightforward case of the “strands in a cable” type. Thus, as Dawson J said in Shepherd –

“If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that the fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev. 1981), par. 2497, pp. 412-414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.”[47]

[47]At 579.

His Honour pointed out also that the “customary direction” – that is, that where the jury relies upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn in the circumstances –

“ . . . is no more than an amplification of the rule that the prosecutor must prove its case beyond reasonable doubt.”[48]

and he said that -
. . . there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given.”[49]

[48]At 578.

[49]At 578. There is nothing inconsistent with this in what was said by Callaway JA in Kotzmann at 128 – 129, [15].

Eighth, bearing in mind that this was, put most favourably for the applicant, a circumstantial evidence case of the “strands in a cable” type, I consider that his Honour’s charge was entirely adequate. It protected the applicant’s position in a large number of ways. His Honour stressed the onus of proof resting generally on the Crown. He dealt extensively with inferential reasoning in a way which was essentially favourable to the applicant. He particularly related his direction about inferential reasoning to the defence of self-defence. He gave a definite and correct direction about the relationship evidence, which for reasons I have given was favourable to the applicant. He correctly identified and directed the jury as to the use to which the Crown sought to put certain of the post-offence conduct, as to the consciousness of guilt argument which was raised in respect of particular alleged lies, and as to the “credibility” use to which the Crown sought to put other alleged lies. It is the fact that, with respect to the post-offence conduct relied upon by the Crown to negate the defences, his Honour gave no separate direction that such conduct need be established beyond reasonable doubt. But there was no need for such a direction; and in any event the fact of the conduct was not in issue. In all, I consider that for his Honour to have given a specific circumstantial evidence direction would have added little, if anything. Indeed, it is arguable that directions which his Honour gave – in particular, his direction concerning the alleged lies relied upon as evidencing consciousness of guilt - had the effect of imposing a more severe burden on the Crown than a circumstantial evidence direction would have done.

Ground 1

This ground was advanced on the basis that the verdicts were unsafe in the sense referred to by Dixon J in Davies & Cody v The King;[50] or on the alternative basis that even if none of the other grounds would succeed on its own, a combination of errors ought lead to an order for a retrial.[51]
[50](1937) 57 CLR 170 at 180. This reference was not developed in any way.
[51]Citing Kotzmann, at 157, [114].

In light of my conclusions thus far, there is no warrant for the applicant succeeding on this ground.

The Sentence Application

The sole ground of application is that the sentences were manifestly excessive.

Under cover of that ground, counsel submitted that the sentences on Counts 1 and 2 were manifestly excessive. He advanced the following contentions:

·The offences were not premeditated.
·The applicant was middle-aged, and had no convictions. He had worked all his life, and had led a law-abiding life.
·In short, in light of the matters just mentioned, this was not a worst-case category of offence.
·The applicant’s conduct was explicable, in some measure, by what a psychiatrist and a psychologist had diagnosed as persistent persecutory thoughts/feeling/ideas about his wife and her family. The judge, in effect, had accepted that diagnosis as explaining the applicant’s extraordinary behaviour in killing his victims, and his post-offence conduct.
·The applicant’s mental state stood in favour of a fixed term.
·The judge should not have concluded that there was insufficiency in the applicant’s personal circumstances to justify the mitigation of a life sentence.
·The judge’s findings that the applicant’s mental state provided some explanation of his conduct was inconsistent with the imposition of a life sentence.
·A comparison with other cases indicated that the imposition of life sentences was excessive.[52]

[52]Counsel cited the sentences imposed in Guthrie [2005] VSCA 15, and Nuttal [2005] VSC 14.

Counsel also submitted, baldly, that there should be “a commensurate reduction in the non-parole period.”

For the Crown, counsel submitted that –

·The judge had rightly concluded that, though there was no clear evidence of premeditation, these were brutal and grave examples of the crime of murder.
·The judge had found there was no remorse.
·His Honour had been correct to regard specific deterrence as a significant sentencing consideration having regard to the applicant’s expressed antipathy towards other members of the Persico family.
·Counsel at trial had not argued against the imposition of life sentences.
·The head sentences and non-parole period were within the range having regard to all the circumstances of the case.

In my opinion both the head sentences imposed on Counts 1 and 2, and the non-parole period which his Honour fixed were within the available range.

It is true that the applicant was a man aged nearly 56 when he appeared before the Court, that he had been hard-working, and that he had no criminal history. So also, the judge accepted that some explanation for the killings lay in the applicant’s persecutory thoughts; and accepted also that there had in fact been a history of some acrimony between the applicant, his wife and her family over a period of years. Those matters, to greater or lesser extent, ran in the applicant’s favour.

No argument was addressed to his Honour, however, that life sentences would be inappropriate. Indeed, it is plain, notwithstanding a submission to the contrary by the applicant’s counsel in this Court, that counsel below approached the matter by implicitly conceding that life sentences would be appropriate. For the thrust of his submissions, a number of times repeated both in his initial plea and in reply, was simply that it would be appropriate for the learned trial judge to set a non-parole period.

I should mention, before going further, the Crown’s submissions below as to what sentences should be imposed. They were as follows: life sentences should be imposed on Counts 1 and 2. For that reason alone, there should be concurrency of the sentences passed on Counts 3 and 4. A non-parole period should not be fixed.

I do not say that the concession made by the applicant’s counsel at trial would preclude this Court from concluding that the sentences imposed were in fact manifestly excessive; any more than the Crown’s submission as to what sentences should be imposed would oblige a conclusion that the sentences were within range. I think, however, that the concession made by the applicant’s counsel below was not without some significance. For, with his knowledge of the trial, and viewing matters from his client’s perspective, he implicitly recognised – as the judge found to be the case – that there were weighty considerations tending in favour of the imposition of life sentences.

The learned sentencing judge was satisfied that these were killings attended by grave circumstances. They had involved serious assaults, one upon an essentially helpless victim. Each of the victims had unsuccessfully sought to defend the applicant’s attack. The terminal event, in each case, had been strangulation, this having necessitated the application of considerable force for a relatively protracted period.

His Honour was also satisfied that –

·The jury would have been satisfied that this “was not a self-defence situation.” He noted, particularly, Mrs Persico’s ability to offer only little resistance.
·The applicant’s account that he had been viciously attacked in his sleep should be rejected.
·The applicant had shown no sign of real remorse.
·The offences had involved extreme violence.
·The opinions of the psychiatrists explained, but did not excuse, the applicant’s extraordinary behaviour, as a law-abiding 56 year old man, in killing his wife and mother in law in a sudden outburst of extreme violence.

His Honour accurately summarised the submissions of counsel before concluding that in all the circumstances life sentences ought be imposed on Counts 1 and 2. In explanation, he said:

“Nicola Spina has not sought to argue against the imposition of such sentences. This is understandable from a practical point of view. As a matter of principle, while the murders of Maria Spina and Giovanna Persico cannot be shown to have been pre-planned, they were brutal and constitute a grave example of the crime of murder. He physically assaulted them. They tried to defend themselves. Having gained the ascendancy he strangled one and then the other.”

His Honour referred then to the issues of no genuine remorse and the applicant’s unpreparedness to acknowledge fully what had occurred or address any of the underlying problems. He summarised this part of his remarks by saying that

“Personal deterrence, as well as general deterrence, remain significant matters and do so notwithstanding the assessment of [the applicant’s] mental state.”

His Honour then turned to the question whether a non-parole period should be fixed. Contrary to the submissions for the Crown, he decided that such a period should be fixed. He said this:

“Having regard to the offences committed in this case, the age of Mr Spina and his lack of remorse, it can be strongly argued that there is no indication for fixing a non-parole period, notwithstanding his prior good history. He has, however, moved a little towards acknowledging what he did. He has now acknowledged that he did strangle the two deceased and he has spoken of remorse although showing no emotional response. He has also acknowledged in substance what he did to Faustino Persico. It also needs to be borne in mind that there are public benefits that can flow from the fixing of a non-parole period. One is that the prisoner is likely to be better behaved while in confinement and will have a real incentive to reform and is, therefore, more likely to retain basic self-respect and have some real prospect of rehabilitation. It has been said also that the provision of a time at which a prisoner may be released on parole enables the parole authorities to address issues that can arise on compassionate grounds – for example, where a person has become eligible for release on parole and is terminally ill. It should be emphasised, however, that if a non-parole period is provided, the punishment imposed on the prisoner remains one of imprisonment for life. If at the expiration of any non-parole period, the prisoner's attitude and behaviour are unchanged the prisoner cannot normally expect any prospect of being paroled.
Taking all relevant circumstances into account it seems to me that it would be appropriate to fix a non-parole period of 25 years. It will, in my view, best address relevant sentencing purposes. I am well aware of the fact that fixing such a non-parole period will have the result that Mr Spina will be approximately 80 before he becomes eligible for consideration for parole. Each year of the sentence represents a substantial part of the life that remains to him and, depending on his health, the non-parole period may well prove in any event to be a life sentence. That, however, cannot be avoided. At the same time the possibility of him living beyond his 80th year cannot be discounted and so it cannot be said that that sentence would destroy any reasonable expectation of a useful life after release.”

It was not argued,[53] and could not have been argued, that his Honour’s approach to the sentencing process was marked by any specific error. My analysis of the flow of his sentencing remarks shows why that is so. It is true that there may be

[53]Save for the point taken about the concession made below, concerning which his Honour was correct.

said to be worse cases of murder. But once a certain point is reached, “worse” is a largely meaningless adjective. It is also true that there are instances in which persons who committed killings which may be said to have been “no worse” have been sentenced to lesser terms of imprisonment, or given shorter non-parole periods, than was the applicant. But that does not make good a contention that the sentence imposed on the applicant was manifestly excessive. It rather confirms that there is a range of permissible sentences within which the concept of “manifest excess” has no part to play.
Orders

I would grant the applicant leave to amend the Notice of Application for Leave to Appeal against Conviction by adding the proposed Ground 6. I would dismiss both that application and the Application for Leave to Appeal against Sentence.

HOLLINGWORTH, A.J.A.:

I agree that the applications for leave to appeal against conviction and sentence should be dismissed, for the reasons given by Eames and Ashley, JJA.

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[2005] VSCA 319

22 December 2005