R v Weiss (No 2)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 94 of 2002

THE QUEEN
	v.
BOHDAN WEISS (NO. 2)

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JUDGES:	MAXWELL, P., VINCENT and NETTLE, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2006
DATE OF JUDGMENT:	17 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 161	1^ST REVISION, 17.8.06

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CRIMINAL LAW – Conviction – Murder – Matter remitted to appellate court pursuant to s.37 of the Judiciary Act 1903 (Cth) – Approach to be taken by appellate court in applying proviso – Crimes Act 1958 (Vic) s.568(1) – Whether “substantial miscarriage of justice” occurred – Prejudicial evidence of little or no value admitted at trial – Whether trial contaminated by the introduction of such evidence – Weiss v. The Queen (2005) 80 A.L.J.R. 444 – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Mr C.B. Boyce	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C. with Mr S.T. Russell and Mr L.C. Carter	Falcone & Adams

MAXWELL, P.,
VINCENT, J.A.,
NETTLE, J.A.:

The body of Helen Grey was discovered on Friday, 25 November 1994, lying on her side on a couch in her home in Gumbaya Close, Eumemmering. A subsequent autopsy revealed that she had sustained a number of heavy blows to the head.

The applicant (“Weiss”) was tried before the Supreme Court at Melbourne and on 13 April 2002 was found guilty of her murder.

An application for leave to appeal to this court failed. One ground of appeal was upheld but the Court held, for reasons which are considered more fully below, that the proviso to s.568(1) of the Crimes Act applied.

Weiss appealed successfully to the High Court, which has remitted the matter for further consideration of the applicability of the proviso. We deal later in this judgment with what the High Court said about the nature of the appellate court’s task in considering whether or not to apply the proviso. We begin, however, with an examination of the evidence which was before the trial jury, and of the cases presented respectively by the prosecution and the defence. Not only is this essential to the task we have to perform, but it provides the necessary context for an understanding of the course of the criminal proceeding to this point.

Prosecution evidence[1]
[1]The outline of the evidence set out in this judgment has been prepared from the trial transcript and the exhibits available to us. Obviously, it does not purport to be a complete record of all witnesses called, or of what was said or transpired, but it is intended to encompass the evidence and issues that can be seen to be significant in the consideration to be undertaken by the Court.
Maxwell Jones

Mr Jones is a forensic biologist, whose expertise includes blood stain pattern interpretation. Based upon his investigation of the crime scene, he considered that Helen Grey’s assailant had been standing behind the couch on which she was lying when he delivered a series of at least three blows with a cricket bat that was found near her body[2]. Mr Jones examined the bat, observing that it was bloodstained and that the outer cover of its handle was missing.[3]
[2]He described numerous blood stains around the immediate vicinity of the deceased’s head and noted that there were further, medium velocity, blood stains projected across to the western wall of the room directly opposite to the position of the couch. This indicated that a degree of force had been applied to that blood. On the eastern wall he found cast off blood stains consistent with having emanated from the cricket bat as it was wielded back before being used to strike the deceased a further time. Mr Jones expressed the view that, as the attacker struck the deceased from behind the couch, which could have acted as a shield against blood spatter, it would not be surprising if the assailant was not blood stained.
[3]There was some human hair on the bat and an indentation consistent with its use as the murder weapon.

Brian Gamble

Mr Gamble was, at that time, a sergeant of police attached to the Victorian Forensic Science Centre. His examination of the scene disclosed nothing that suggested that there had been any forced entry to the premises[4] or that any of the rooms had been ransacked.
[4]As we understand the evidence, there was no indication that anything, save the rubber grip on the cricket bat handle, had been removed from the house.

Jean Horstead

At the time of Helen Grey’s death, Ms Jean Horstead[5] was living in a de facto relationship with Weiss in North Dandenong (a few miles from Gumbaya Close). At about 6.00 p.m. on Thursday, 24 November 1994, two friends, Michael Havers and Carolyn Heenan, came to their home. There had apparently been much gossip in the group of people with whom they associated, and the couple wished to confront Weiss because they thought that it was he who was spreading it.
[5]This witness gave evidence via a video link from Atlanta, Georgia, USA.

Ms Heenan aggressively confronted Weiss concerning a statement she said had been made to her by Ms Grey, about some sexual activities in which members of the group, including Ms Grey, had allegedly engaged. Ms Heenan had told Weiss previously about what was being circulated and had asked him not to say anything about it to Ms Grey. When the matter was raised, Weiss expressed indignation and, at one point in their conversation, said to Ms Horstead “Set the alarm clock for 4 o’clock because I’ve got something to do. I’m going to get that bitch.” After Mr Havers and Ms Heenan left at approximately 6.30 p.m., Weiss went to soccer training, returning home at about 8.30 p.m.

Later that evening, at a time after 9.30 p.m., Weiss and Ms Horstead were watching television when he told her that he was going somewhere. He then left without specifying his destination. He arrived back at the house at about 10.30 p.m., or a little after.

When Weiss walked into the lounge room on his return, Ms Horstead noted that he was shaking and very pale. She had not seen him in that state on any prior occasion and asked him what had happened. After a small delay, Weiss responded with words to the effect “I did it. I killed her.” She asked him what he meant. He repeated, “I knocked her off. I killed Helen”[6]. She said that she still did not comprehend what Weiss was telling her and repeated her enquiry.
[6]Ms Horstead did not claim that these were the precise expressions employed.

Weiss then gave Ms Horstead the following account. He had driven to a main road near the deceased’s home, left his car there and walked a short distance to a small park located opposite her house. He saw two of the deceased’s friends, Bradley Connor and Marina Matos[7], leaving and waited in a fort-like cubby house in the park to see if they would return. He then went to the front door, knocked on it and Ms Grey answered. He told her that his car had broken down and asked to use her telephone to call Ms Horstead’s stepfather to assist him. He was admitted and Ms Grey went and lay down on a couch, indicating to him that she was not feeling very well. Weiss went to the kitchen and pretended to make a phone call.
[7]Bradley O’Connor and Marina Matos were the persons about whom the rumours had spread. It was suggested that the deceased had slept with them in a “threesome” or “foursome” (with another person, Ms Horstead thought, called Danny).

When he finished, Weiss turned around and saw an entertainment unit or cabinet, with a cricket bat nearby. He picked up the bat, approached Helen Grey from behind the couch on which she was lying, and started beating her with it. He stopped when he observed that she was “a mess”; “gurgling and bleeding”. At this point in the recounting, Ms Horstead asked Weiss whether Ms Grey could still have been alive at that stage. He answered by saying that he had leaned down and spoken into her ear, telling her to “let go”. He said that he took the rubber grip from the bat’s handle and put the bat down next to the couch. He then left, closing the door behind him.

Weiss told Ms Horstead that, as he was driving home near the Freeway Sports Centre, he threw the rubber grip out of the car. She asked about the whereabouts of the deceased’s young son, Steven. Weiss said that he had thought about doing the same thing to the boy, but had decided against it. To Ms Horstead’s enquiry concerning whether he might have left his fingerprints in the house, he responded that he had taken care of that possibility by wiping the phone with his socks.

The following morning, Weiss suggested to Ms Horstead that they call in at Ms Heenan’s and Mr Havers’ home, to repair the friendship from the earlier evening and to make everything appear normal. She said that when they arrived, the couple were “fine” with her but they did not acknowledge Weiss, as they were still upset with him. Weiss tried to speak to them about the argument of the night before, but they indicated that they did not want to discuss the matter. After they had been there for 10 to 15 minutes, Ms Matos arrived and told them that Ms Grey had been killed and that she needed to find Ian (referring to the deceased’s husband, Ian Grey).

At about 3.00 p.m. that afternoon, some detectives attended the home of Ms Horstead and Weiss. They asked him to go with them to answer some questions concerning his whereabouts on the previous night. He agreed and left with them.

Ms Horstead said that, when Weiss had left their house the previous evening, he was wearing tracksuit pants, a T-shirt and runners. When she was washing laundry on the Friday afternoon, she noticed a few spots of blood below the knee area of the tracksuit pants. She panicked and burnt them in the backyard. During the following weekend, she told Weiss that she had done this. He said that it had not been necessary, saying that he had already wiped some blood from his shoes[8] and that it was only necessary to wash them.
[8]This piece of evidence became a focus of the substantial attack that was made on the credibility of Ms Horstead, as she claimed in a statement to the police that Weiss had told her that he had removed his shoes at the doorway and used his socks to wipe the telephone.

Ms Horstead said that Weiss was distraught after he returned on the Friday evening following his questioning by the police. He indicated that he was concerned that others had told the police that he might have had a motive for killing Ms Grey, and said that he and Ms Horstead would need to “get their stories straight” before they were questioned further, so as to keep him out of gaol. Weiss suggested that they should say that they had spent the previous evening at home together and that he had not gone anywhere. He told her to say that she would have awoken if he had left the house during the night, because she was a light sleeper. The following Tuesday, they went to the Dandenong police station and Ms Horstead made a statement in accordance with the agreed version. When cross-examined by counsel for Weiss, she conceded that she had attempted in her statement to make it seem that others might have had a motive for killing the deceased, including the deceased’s estranged husband, Ian Grey.

After November 1994, the relationship between Ms Horstead and Weiss deteriorated. On occasions, when they argued, she would remind him that he was a murderer and threaten to call the police[9]. She said that that would stop the argument. But he would respond that, if she did tell the police, he would leave and no-one would find him, but he would know where she and her parents were.
[9]This conduct does not appear to be consistent with Ms Horstead’s claim to have stayed with Weiss because she was frightened of him.

Ms Horstead lived with Weiss until they separated in November 1997. In 1998, she went to America, where she met a man named Eddie Keller. She came back to Australia for a while and then returned to the U.S. to live with him.

In May 2000, Ms Horstead contacted the Homicide Squad from the U.S. Not long afterwards, Detective Sergeant Stephen Mitchell flew to Georgia, U.S.A. and spoke to her. Arrangements were made for her to talk to Weiss about the murder by telephone.[10] She made a number of untrue statements in the course of the ensuing conversations, in an endeavour to induce Weiss to talk about what had happened[11] and to obtain corroboration for her second statement to the police. She was afraid that, if she was unable to prove that Weiss was the murderer, it would seem suspicious to police that she was the only one who knew details of the killing that had not been made public.
[10]Recordings of five telephone calls were played to Ms Horstead: Exhibits F, G, H, J and K.
[11]She said that it was Mr Keller who first suggested the idea of recording telephone conversations with Weiss.

Ms Horstead said that she feared for her life and the lives of her children from November 1994 to 1997. It was for this reason that she had initially provided a false alibi for Weiss[12]. During that period, she was looking for an excuse to end the relationship and was relieved when she discovered that Weiss was having an affair. She said that she was frustrated with him because he would not admit this involvement. There was no violence in her relationship with Weiss prior to November 1994, but afterwards there was some pushing and shoving[13]. On occasion, Weiss would scream at her and use expletives. Her relationship with Weiss ended because he was having an affair with someone else.
[12]She could not tell the police what she knew until after her family moved out of the Doveton area.
[13]Ms Horstead said that she did not mention this incident to anyone.

On 16 January 2001, Ms Horstead was granted an indemnity from prosecution by the Director of Public Prosecutions, which protected her against being prosecuted as an accessory after the fact to murder. She understood, however, that this did not give her immunity with respect to any perjury committed in connection with the case.

Eddie Dwayne Keller[14]

[14]Ms Horstead’s partner (T 596-613).

Mr Keller came to Australia from the U.S. on 2 November 2000[15]. On his arrival, Victoria Police equipped him with a listening device prior to Weiss collecting him from the airport. An audio tape of a conversation between Weiss and Mr Keller was played to the court.[16]
[15]Mr Keller also gave evidence via a video-link from Atlanta, Georgia.
[16]Exhibit L.

In cross-examination, Mr. Keller said that Ms Horstead had first told him, in May 2000, that Weiss had killed Helen Grey. This was contrary to her initial version to him, which was that Weiss had not been involved.

Bradley John Connor[17]

[17]A friend of the deceased (T 622-648).

On the evening of 24 November 1994, Mr Connor went to Helen Grey’s home. When he arrived at about 7.00 p.m., Ms Matos, Ms Grey and Ms Grey’s son, Steven, were there. Ms Grey complained that she had a headache. She was lying on the couch. Connor went home at around 9.00 p.m. Ian Grey arrived at Connor’s house at 9.30 p.m. and stayed with him until about midnight.

In cross-examination, Mr Connor said that Ms Grey’s house was a well-known location for buying marijuana, and that she used amphetamine. He had a few “bongs” when he was there on this night. The later arrival of Ian Grey at his home was unexpected and it appeared to him that Mr Grey had had “a few drinks”. He consumed more marijuana with Mr Grey. He subsequently became aware that the police suspected Mr Grey of killing his wife. Police told Connor that, if he “covered” for Grey, he would be charged with being an accessory. He understood that Helen Grey had taken out an intervention order against Ian Grey on the Tuesday before her death. He said that the rumour about Helen Grey having sex with a number of men at a motel was not true, as he was present on the occasion on which this was supposed to have occurred.

Marina Matos[18]

[18]A friend of the deceased (T 660-682).

On the afternoon of 24 November 1994, Ms Matos went to Helen Grey’s home and remained there until about 9.30 p.m. In cross-examination, Ms Matos said that she had stayed at the house on a number of occasions at the request of Helen Grey, who told her that she was scared. Ms Matos did not enquire as to the basis of these concerns. On the day before Ms Grey was killed, Ms Matos saw her receive what appeared to be an unwelcome telephone call. Ms Grey told her that the caller was her next door neighbour, “Howie”. “Howie” arrived at the deceased’s home in a seemingly drunken state on the evening of the murder, while Ms Matos was there, and stayed for a short time. Ms Grey had six “bongs” whilst Ms Matos was at the house on this evening. Ms Matos knew that Ms Grey had a problem with amphetamine use and, two nights earlier, had seen her experience a seizure or fit, apparently due to abuse of this drug. Ms Grey asked Ms Matos to stay at her home on the night of the murder after Mr Connor had left, but she could not do so as she had to work the following morning.

Ms Matos said that Ian Grey would often abuse Ms Grey about the custody of their son, her drug use and her alleged promiscuity. This upset Ms Grey. She was also upset about rumours, which she asserted were untrue, that she had participated in group sex. On the night of the murder, Ms Matos saw Ms Grey lying on the couch in the lounge room. She complained of a stomach ache and a headache. Ian Grey rang while Ms Matos was present. She heard Ms Grey tell the caller that she would ring him later when she was feeling better. When she was leaving, Ms Grey came to the door with her. She did not hear the door or the security door lock after her. She said that “there was no secret” about the fact that a cricket bat had been used to kill Ms Grey.

Carolyn Maree Heenan[19]

[19]An acquaintance of both Weiss and the deceased (T 682-705).

At about 6.00 p.m. on 24 November 1994, Ms Heenan and her partner, Mr Havers, went to Weiss’s home. She said that she was angry with Weiss for telling Helen Grey about the rumours involving her. Weiss denied that he had said anything to Ms Grey about those matters. He became very angry and said that he would pay Helen Grey back, and that he would secure a gun from Johan[20] and “pop” the deceased from the corner of her street. Weiss told Ms Horstead to set the alarm at 4 o’clock, because he “had something to do”. Ms Heenan and her partner left to go home after about an hour. They arrived home at Doveton at about 7.00 or 7.30 p.m. Ian Grey arrived and stayed for a few hours. He had a “few beers” and left at about 9.30 p.m.
[20]Johan was apparently a friend of Weiss.

In cross-examination, Ms Heenan said that Helen Grey and Ian Grey had had a turbulent relationship. There was a rumour circulating in their group to the effect that Helen Grey had slept with people in a motel. She said that this rumour had reached Helen Grey through Weiss. This was why she (Heenan) was angry with Weiss. She did not take his threats seriously, however, and understood that by the time that they left Weiss’s house on the Thursday night, their dispute had been resolved. She said that many people attended at Helen Grey’s home to buy marijuana and amphetamine.

Michael Gordon Havers[21]

[21]An acquaintance of the deceased and Weiss (T 705-715).

Mr Havers went to Weiss’s home on the evening of 24 November 1994 with Ms Heenan. After Ms Heenan accused Weiss of informing Helen Grey about what she (Heenan) had said to him, Weiss became angry and stated that he had “had enough” of Helen Grey. Weiss told Ms Horstead to set the alarm, as he wanted to get up early, because he was going to get Johan’s rifle and “pop [Helen Grey] off” from the end of the street.

In cross-examination, Mr Havers said that the situation had settled by the time he and Ms Heenan left, and that he took Weiss’s threat with “a grain of salt”. Ian Grey arrived at their house later that evening, but his memory was not “very good” about what time he left. Mr Havers said that he (Havers) suffered from alcoholism, epilepsy and a head injury, but he thought that Mr Grey and he had watched the Footy Show (which started at 9.27 p.m.) together.

Ian William Grey[22]

[22]The former husband of the deceased (T 721-807).

Mr Grey denied killing his former wife. In cross-examination, he admitted having verbally abused her. He had written her an apologetic letter about his behaviour only a week before the killing. He understood that for some time he was the “prime suspect” for her death. He had been interviewed by the police and accused by them of her murder. He was married to Helen Grey for about nine years, and lived nearby after they separated. She was using drugs for about three years before she was killed, and he had heard “nasty” messages that were left on her answering machine from her drug contacts. He often argued with his wife about money and drinking. There had been a drug raid on her house six weeks before she was killed, in consequence of which he was charged. He said that he was not violent towards his wife, although he had damaged her car on two occasions.

He had last lived with his wife about four weeks before her death. They argued and she ejected him from the house. They maintained some contact nevertheless, and he may have threatened her “a couple of weeks” later. He was aware that Weiss had removed a camera that had been left by the drug squad at the deceased’s house after the raid earlier mentioned. He said that “Howie” and he had had consensual group sex with Helen Grey, and thought that this was probably the basis for the rumours that had circulated about her behaviour.

Mr Grey agreed that an intervention order had been taken out against him by his wife two days before her death. He was disappointed when this occurred, as there had never been an issue about him seeing their son and he had only threatened to take the boy from her because she would not stop abusing drugs.

Mr Grey said that, after being at Mr Havers’ house on the night of 24 November, he visited Mr Connor at his home. He did not know at what time he had arrived there. From there, he went with Mr Connor to the house of another friend.

Detective Sergeant Stephen Malcolm Mitchell[23]

[23]Detective Sergeant of Police (T 840-845).

Detective Sergeant Mitchell became involved in the investigation into the death in the year 2000. At that stage, little progress was being made. The position changed in consequence of telephone conversations he had with Ms Horstead, who was in Georgia, U.S.A. On 13 September 2000, Mitchell took a statement from her, in Georgia, and on 28 November 2000 he arrested Weiss at his home[24]. He conducted the first interview with him and, after Weiss had spoken to Detective Sergeant Thomas, the second.[25]
[24]Senior Constable Graham Ross (T 1019-1032) said that, on 18 September 2000, Senior Sergeant Ron Iddles and he went to Weiss’s home at Cockatoo to let him know that the investigation was being pursued in order to try to establish an atmosphere that would encourage him to speak to Ms Horstead when she called.
[25]Exhibit N.

Mitchell tendered the record of Weiss’s first interview[26]. He said that there was no intention to speak to Weiss again after that interview. Upon the completion of the interview, he had told Weiss that he was going to be charged with murder.
[26]Exhibit M.

In cross-examination, Mitchell said that he discussed with Ms Horstead possible ways in which she might introduce the topic of the deceased’s murder into telephone conversations with Weiss which were proposed to be monitored. But he left it to her to decide what precise matters would be discussed.

Detective Sergeant Dean James Thomas[27]

[27]Detective Sergeant of Police (T 845-870).

Detective Sergeant Thomas was not involved in the investigation into the death of Helen Grey until, on 28 November 2000, he was asked to speak to Weiss[28]. Weiss told Thomas that he had not told the truth in his recorded interview. He wanted to talk with Thomas as he was the only “copper” that had treated him well over the years[29]. Weiss told Thomas that he went to Helen Grey’s house and argued with her. In the course of their dispute, Ms Grey pushed him onto the cricket bat which he picked up and used to strike her over the head. Thomas told Weiss that he would have to inform Mitchell about what he had said, and that there would need to be another interview.
[28]Evidence concerning the making of these arrangements was given by Sergeant Mark Colbert (T 822-833).
[29]He did not record this conversation, although he accepted in cross-examination that he could have done so surreptitiously.

The Interview Process – 28 November 2000

The first interview commenced at 9.55 a.m. on 28 November 2000, Weiss confirmed that the contents of his statement of 29 November 1994 were true and correct, as far as he could remember. He said he did not know who had killed Helen Grey. When Mitchell informed him that Jean Horstead had made a second statement, in which she alleged that he had confessed to her, Weiss responded that she was lying.

Mitchell put to Weiss that, in a conversation with Eddie Keller, he (Weiss) had intimated that he not only knew the identity of Helen Grey’s killer, but had been aware a week before her death that she was going to be killed. Mitchell then asked for the name of this person and Weiss replied “No comment”. When Mitchell queried this response, Weiss stated: “It’s a little bit more involved than that.”

In response to a number of allegations put to him regarding conversations that he had had with Ms Horstead and Eddie Keller, Weiss said:

“… I didn’t kill Helen Grey, okay. I’m not gonna tell you who did, okay. She knows that I know who did. If I tell you who did, I’m not gonna last if I go inside. I’m gonna come out and I’m gonna be happy. If you guys, you know, want to put me in jail, that’s not a problem. I’ll go and sit it because if I dog, I’m gonna be gone, so it doesn’t really matter to me. It’s a little more involved than that. I’m not gonna – look, I’m not gonna tell you who did it, okay. I’m telling you I didn’t do it and that’s as simple as that and that’s why I was scared that she was tape recoding the conversation, because she was trying to get it out of me, the whole conversation, who did it.
…
[T]here’s certain people involved that I don’t want nothin’ to do with and I don’t ever wanna see again. And I don’t really wanna see again, not even drivin’ past. Some mean, mean people and I don’t want nothin’ to do with it.”

Mitchell asked Weiss whether he left his house again after returning home from soccer training on the night of Helen Grey’s murder. Weiss replied:

“She’s obviously already told you, right. … It’s pretty obvious to me that she’s told you, so you know exactly what’s goin’ on, you know exactly what I told her, right, so you’ve got a rough idea. What you’re lookin’ for is somebody to turn around and go right, there’s your man. I can’t do that. I’m really sorry. I would sooner sit than – than dog someone in and get done over out – out here. I’ve also got [T] to worry about, if somebody comes lookin’ for me.”[30]

[30]The reference to ‘T’ is a reference to the girl with whom Weiss had an affair: see [70]-[72] below.

Detective Senior Constable Graham Ross, who was present, then asked Weiss:

“What’s the obvious thing that she has told us?”

Weiss said:
“She obviously told you that I wasn’t home that night … where I went … who I went to see.”

Ross then asked Weiss how long it had been since he had had any involvement with “these people”. Weiss said that he had not had any involvement with them since that time, “but [he] did not doubt for a minute they knew exactly where [he] was.”

Mitchell[31] asked Weiss if he knew what weapon was used to kill the deceased. He responded that it was either a cricket or baseball bat and that he had learned this when he had last been interviewed. Mitchell then informed him that he was going to be charged with the murder of Helen Grey. The interview concluded at 11.40 a.m.
[31]The interview was suspended at 10.55 am and resumed at 11.30 am. It was on its resumption that this question was asked.

The second interview commenced at 12.25 p.m. In the interim, as earlier mentioned, Weiss had spoken to Thomas. Mitchell asked him whether there was anything that he wished to say. He replied that he had visited Helen Grey at her home on Thursday 24 November 1994, in order to have “a go at her.” He continued:

“I don’t remember exactly what happened, but all I remember is that she came at me, asked me to leave her house, we had a bit of a wrestle, she slapped me across the face and just pushed me and pushed me towards the bat and I grabbed the bat and I hit her. I didn’t – I didn’t think that I would kill her. I didn’t mean it. It was an accident and she just fell and I ran and the next day I found out she was dead. And I’m sorry I did it. I’m so sorry. It was never meant to happen. It was never meant to happen like that. I did not go over there with the intentions to kill her. I just wanted to just give her my mind and just a mouthful. I’m just sorry.”

Weiss stated that he left for Helen Grey’s home at “probably around midnight … 11.00 or – it was dark”. He said that he parked his car “a bit up the street” and then walked directly to the house. He did not hide in the playground area. He knocked on the door and after some time, as Ms Grey had apparently been asleep, she responded and admitted him. He could not recall asking Ms Grey whether he could use her telephone to call his “father-in-law” as his car had broken down. He said that they had a “heated chat” and “push came to shove”. In the course of this confrontation, he picked up the cricket bat and struck Ms Grey with it “once or twice” to the head, causing her to fall. He said that he thought that he had rendered her unconscious.

He said the altercation had occurred in the lounge room and that –

“She was sittin’ on the couch and I was sittin’ on the chair and when she got up and pushed me I pushed her back, she fell onto the couch and she got up and pushed me towards the bat. … The [bat] was next to the wall. And I fell and tripped. Well, I fell on top of it and that’s when I picked it up. As I got up, I picked it up and I hit her and she fell onto the couch and that’s when I ran out”.

He could not recall whether he had hit her more than twice.

Weiss said he could not recall using his socks to wipe the telephone receiver before leaving the house, but did remember removing the rubber grip from the bat and throwing it out of his car window as he drove along the Princes Highway in the vicinity of the Freeway Sports Centre. He did so because he did not want to leave his fingerprints at the premises.

Weiss said that Ms Grey was not lying on the couch at the time she was hit and that he struck her when he was “looking her in the eye”. He could not remember what clothing he was wearing on that night, but thought that he probably had on tracksuit pants. He was not aware that Ms Horstead had burnt his tracksuit pants.

Weiss said he had gone to Helen Grey’s house alone and that, when he returned home, he told Ms Horstead that he had struck the deceased with the cricket bat. He said he learnt of Helen Grey’s death from a woman who came to the home of Caroline Heenan and Mick Havers when he was there the following morning, but he could not recall who she was.

The interview was effectively completed at 12.50 p.m. but recommenced at 12.54 p.m. as Weiss wished to add the following:

“I didn’t plan to do it. I didn’t plan to kill the woman. … I went there to approach her …. …… I didn’t do it – I didn’t do it – I didn’t – to this day I have been able to convince myself that I didn’t do it because I didn’t mean to do it.”

Evidence on behalf of the defence
Bohdan Weiss[32]

[32]Weiss (T 1094-1256).

Weiss gave evidence in the trial. He said that he had lived with Ms Horstead in Cornelius Street, North Dandenong, for approximately three years at the time of Helen Grey’s death, and then for the three years following. Ms Grey sold amphetamines. They had known her for a few months, and had gone to her house a few times. Shortly before Ms Grey’s death, he had told her about the rumours that she had taken part in “threesomes” or “foursomes”.

When Ms Heenan and Mr Havers came to his home on 24 November 1994, Ms Heenan attacked him verbally and he became upset. He could not remember having threatened to “get” Helen Grey, as Heenan and Havers said he had done. He said that, if he did make those threats, he had not been serious. “Sometimes I go off at the mouth and my mouth gets me into trouble.” Their visitors left at about 7.00 or 7.30 p.m., after which he went to soccer training and came home before the television program, “The Footy Show” started (9.27 p.m.). About 20 minutes later, he left to go to Helen Grey’s house to speak to her about the rumours. He went there with no feeling of animosity towards her, but “just to sort it out”.

Weiss parked his car some distance from Ms Grey’s house, following advice which she had previously given him. After the raid earlier mentioned, the police had left an evidence camera in the premises, which he had helped her remove. After that was done, according to Helen Grey, she was subjected to constant surveillance. As she did not want to implicate Weiss in her problem, she suggested that when he called in, he should leave his car some distance away.

Weiss went directly to Helen Grey’s house. He found that the security door was open and the front door was not snibbed properly. He grabbed the door handle and called out her name, but received no answer. After calling out a second time and again receiving no answer, he entered and saw a cricket bat leaning up against the arm of the couch, near where her head was resting.

Weiss walked to the couch, knocking over the bat as he did so. When he moved closer, he realised that there was “blood everywhere”. He put his hand on Ms Grey’s shoulder and said, “Hello, Helen”, but she did not respond.

After he realised that Ms Grey was dead, he picked up the bat, thinking that there was something terribly wrong and that he needed to get out of there. He then remembered that he had touched the grip of the bat and, appreciating that he might have left his fingerprints on it, decided to remove the grip. He thought that, if he told the police the truth about discovering the body, he would not be believed.

Weiss said that Helen Grey did not meet him at the door; there was no struggle; he did not strike her; and he did not remove his shoes. He denied having had any conversation with Ms Horstead about wiping blood from his shoes. He said that, when he returned home, he felt sick and told Ms Horstead what had happened. They decided to say that he had not gone to Ms Grey’s house and knew nothing about her death.

On the next day, they went to Ms Heenan and Mr Havers’ home, as they usually did, in order to keep up the appearance of normalcy. After about 20 minutes, Ms Matos arrived and told them of the discovery of Helen Grey’s body. He then went to the toilet and vomited.

The relationship between Weiss and Ms Horstead deteriorated following these events. Sometimes she would threaten to tell the police that he was a murderer and they would often argue about him having affairs. Accordingly, he was surprised when she called from America. He was suspicious that she would attempt to “frame” him.

Weiss said that, on the day of his arrest, Detective Sergeant Mitchell told him that they had new scientific evidence and that he had better start thinking about manslaughter. He was then taken to his first interview. He was surprised when, at the conclusion of the interview, he was informed that he was going to be charged with murder. He asked to speak to Detective Sergeant Thomas, so that he could tell the detectives that they had arrested the wrong person.

He told Thomas that he was innocent and was being “framed” by Ms Horstead. Thomas asked Weiss whom he was protecting and suggested that he should think about the possibility of pleading guilty to manslaughter. Weiss asked what was involved in that offence and Thomas told him that he would be guilty of manslaughter if the death of the deceased was “an accident”. According to Weiss, Thomas indicated that, if he co-operated, there was a good chance that the matter could be treated as a case of manslaughter and that he (Thomas) would probably know the prosecutor and, implicitly, be in a position to influence the prosecutor to achieve that outcome. According to Weiss, Thomas suggested that the detectives could provide him with necessary details relating to the crime scene if he did not know them. Accepting this advice, he said, he decided then to tell the detectives that he was responsible for striking Ms Grey with the bat, but that her death was unintended.

Weiss was then taken to his second interview.[33] In that interview, he said, he had been concerned to provide a version which created the impression that Helen Grey’s death was accidental, so that it would be treated as manslaughter. He did not tell the truth in the second interview. In cross-examination, he did not concede that he had had a realistic choice of telling Thomas the truth in the interview room, rather than agreeing to accept responsibility on the basis of manslaughter.
[33]The record of this interview was admitted as Exhibit N.

Weiss denied killing the deceased.

In cross-examination, he said that at the time of the second interview he thought that the solution to his problems was to admit his involvement. He did not protest when he was charged with murder, as he thought that Thomas would honour his indication and that, in due course, the charge would be reduced to manslaughter.

Weiss was cross-examined about his version of events at Helen Grey’s house. He said that it was easy to remove the grip from the bat. He conceded that he took no steps to protect the deceased’s young son who, he accepted, would have been in the house. He said that he had given no thought to the presence of the boy, then or later. He said that he had put the bat back against the couch. He could not explain how it came to be on the floor, as shown in the police photographs. He had no particular reason for picking up the bat and suggested that he might have done so from “force of habit”. He was taken through the various telephone conversations with Ms Horstead and Mr Keller, and said that he could not remember saying many of the things which he had been recorded as saying.

One passage of the cross-examination needs to be set out in full, as it gave rise to the only successful ground of appeal:

“You were asked a number of questions by [your counsel] yesterday about your relationship with Jean?---Yes.
It was just in general terms, right?---Yes.
And the ending of that relationship?---Yes.
I think, in general terms, it was established that you were having an affair with [T] and that was, as it were, the trigger for the ending of the relationship with Jean?---Yes.
In general terms, your evidence was, yesterday, wasn’t it, that Jean reacted, what, jealously, very jealously about this?---Yes.
You said, at 1122 – I’m just giving the answers, but is this what your position is; ‘She rang all my friends and quizzed them about it’ – meaning her fear – ‘because, obviously, they all knew about it. She wasn’t happy with the situation, but she told me that if I was to leave her, and (indistinct) sack her, because she was working for me, at that time, we could start all over again.’ That’s the thrust of what you’re saying, isn’t it?---Yes.

The fact is, isn’t it, that at the time you commenced this affair with [T], [T] was 14 years old, wasn’t she?---She was 15, yes, almost 15, yes.
She was 14. She wasn’t yet 15?---Yes, [Prosecutor].
And the reason for Jean Horstead complaining bitterly about this, was that she thought it was inappropriate for you to be having an affair with a 14-year-old girl, didn’t she?---No, [Prosecutor].
She never criticised you for having an affair with a 14-year-old girl – never?---No.”[34]

[34]T 1228.

The trial judge ruled that the evidence of T’s age at the time of the commencement of her relationship with Weiss was –

“… relevant to matters joined in issue: it is put by the defence, in order to seek to undermine the confession which Ms Horstead says she received from [Weiss] on the night of 24 November 1994, that she voluntarily stayed with him and indeed fought to keep him, and this material can go to the circumstances of their difference of opinion in relation to [T]; that is to say, why there was a difference of opinion. That is not an unimportant matter, although by no means the most important matter in this trial.”[35]

The Judge went on to say that he did not consider that the admission of this evidence was inherently prejudicial in the context of the trial.

[35]DPP v Bohdan Weiss [2002] VSC 136 at [2], Ruling No. 3.

For reasons set out below, this Court ruled that the evidence of T’s age ought not to have been admitted. It was that ruling which necessitated consideration of the proviso.

The case for the prosecution

The case for the prosecution was that Weiss’s confession to Jean Horstead, when he returned home on the evening of 24 November 1994, was true. His confession in his second police interview was also substantially true, although he presented a version designed to minimize his own responsibility for the death.

On the night of 24 November 1994, Weiss was very angry with Helen Grey. He had made threats against her, and set out with the sole purpose of confronting her. When he did so, he lost his temper, grabbed a cricket bat and killed her. In order to conceal his responsibility for what had occurred, he removed the rubber grip from the bat handle and disposed of it on his way home. Two answers which he gave to questions put to him that night by Ms Horstead were particularly informative. The first question, “Are you sure she’s dead?”, produced the reply, “I leant down, I heard her gurgling and I told her to let go”. The second, “What about Steven?”, received the response, “I thought of doing him too.”

The Crown submitted that, when considering the evidence and the conduct of Ms Horstead in relation to this matter, the jury should remember that she was, in November 1994, a very vulnerable person. She was six-and-a-half months pregnant with their child and she had two other children. Ultimately, she was able to leave Weiss in a way which would not arouse his suspicions, because of his affair with the 14-year-old (T).

With respect to the various recorded phone calls, Ms Horstead had invented numerous false stories in an endeavour to encourage Weiss to admit his involvement in the death of Helen Grey. He resisted those attempts and could be seen to have instructed her to “stick to the story. We were home. Right? That’s that.”

In the first interview on 28 November 2000, Weiss could be seen to have been initially quite self-assured and confident, thinking that all he needed to do to avoid responsibility was to follow his own instructions. Unbeknown to him, Ms Horstead had informed the police about what he had told her. In consequence Weiss was “stumped” when the question was posed, “Why would you be worried if Jean was taping the phone call?”. He realized then that he might need to alter his stance. This was why, after Weiss was charged with murder, he called for Detective Sergeant Thomas. Thomas attended because he thought there was a welfare issue involved. By the time of the second interview, Weiss presented in a markedly different fashion.

Weiss had provided three different versions of what had taken place. In the first interview, he said that he was at home all night, in bed with his wife; in the second interview, he accepted that he did strike Helen Grey with the cricket bat, but claimed to have had no murderous intent when he did so; according to the third version, given in court, he was in no way responsible for her death. He had simply gone to Ms Grey’s house, where he found her dead body and a bat that he accidentally touched.

The prosecutor submitted to the jury that the third version was implausible. The jury should reject his assertion in evidence that Ms Horstead had dissuaded him from calling the police.

The detailed explanation by Weiss as to the circumstances under which he handled the cricket bat was nonsense. Why, asked the prosecutor, would the applicant be so worried about his conduct in innocently picking up the cricket bat and leaving it just where he found it, when he was faced with the shocking discovery of the deceased’s body? The answer was that his conduct was not innocent and that it was he who had killed Helen Grey, in circumstances constituting murder.

The case for the defence

The case for the defence may be summarised as follows. The “so-called” confession in the second interview was forensic nonsense. It was clear from the evidence that Ms Grey was not standing when she was first hit with the cricket bat, but was lying on the couch with a rug still over her. There were a number of inconsistencies in that interview,[36] which pointed to its unreliability.
[36]They included Weiss’s statement that he went out at about midnight or 11.00 p.m., when it was obvious he left at about 9.50 p.m.

The evidence of Jean Horstead was the linchpin of the Crown case. She was cunning, manipulative and capable of enormous deceit and amazing embellishment. Defence counsel pointed to Ms Horstead’s various inventions in the telephone calls made to Weiss. If Ms Horstead was capable of lying in this fashion, he said, there had to be very serious doubts concerning her credibility generally. She could well have obtained much of her information concerning the death of Helen Grey from “around the place”, and it was clear that “the word was out” that Ms Grey had been killed with a cricket bat. The defence argued that Ms Horstead had put together the snippets of information that she had gleaned, and had “fixed” Weiss with her reconstruction. She had falsely asserted that Weiss had said “I thought I’d do [Steven] too”, in an attempt to present him as a monster. How likely was it, asked defence counsel, that she would have stayed with such a person after that night? In fact, she continued to do so for a further three years and only broke off her relationship with him when he became involved with someone else.

No adverse inference should be drawn, it was argued, from Weiss’s careful reactions in the taped telephone conversations. Weiss was not sure what was happening or intended. He was concerned that he was being “set up” and was, understandably, guarded in what he said.

The prosecution’s suggested motive was “pathetic”. A minor dispute about the dissemination of gossip of the kind involved was highly unlikely to have produced such an intense reaction, particularly when regard was had to the lifestyles of those involved. The Eumemmerring and Doveton areas in which they lived were “pretty tough,” and alcohol and drug use and unemployment were common. It was in this context that the lifestyle of Helen Grey, and of those with whom she associated, needed to be understood.

The reasonable possibility that Ian Grey was responsible for the deceased’s death could not be excluded. There was evidence that Ian and Helen Grey had had a volatile relationship and that Ian Grey’s conduct was by no means limited to verbal abuse. The defence pointed to the evidence that Ian Grey had put his fist through a car window and had threatened to punch Helen Grey. Ian Grey was experiencing severe emotional turmoil and it would not have been surprising, or inconsistent with what was known about him, for him to have reacted with violence.

The defence attacked the evidence of Detective Sergeant Thomas, that Weiss had said to him, “I feel so much better now that I’ve been charged”. This was “absurd nonsense, more fitting for a musical play than for evidence in a court.”

Upon finding Helen Grey dead, Weiss made the mistaken decision to flee. He was confronted with an horrific situation. It was by no means difficult to understand that he panicked and left for fear of being wrongly accused of murder.

When Weiss indicated that he wished to speak further to the police, prior to the second interview, he did so because he appreciated that they knew that he had lied to them about his attending Helen Grey’s home. He thought that he was in danger of being held responsible for a murder that he did not commit. In that situation, the defence contended, Weiss considered that he had no alternative but to accept the police suggestions of “going for manslaughter”. The fact that Weiss’s conversation with Thomas was not recorded was illustrative of the true police agenda, which was to try and obtain a confession. Thomas was “in on it”.

This “so-called confession” was demonstrably untrue in several respects. Specifically -

(1)Weiss told police that he had made a phone call to Helen Grey before he went to her home, but there was no evidence of such a call;
(2)Weiss said that he went out at about midnight or 11.00 p.m., but the evidence was clear that he had left at around 9.50 p.m.;
(3)Weiss said when he hit Helen Grey she was standing in her lounge room, arguing and fighting with him. This was demonstrably untrue because, according to the evidence, she must have been lying down on the couch with the rug over her when she was hit the first time; and
(4)Weiss told the police that he thought she was just “knocked out” when he left, whereas the forensic evidence showed that she must have been dead at the time.

The fact that the police did not question Weiss closely about those inconsistencies showed that the interviewer was endeavouring to “con” Weiss into “going for manslaughter”.

In summary, it was contended, Weiss was guilty of neither murder nor manslaughter.

The appeal process

In his application for leave to appeal to this Court against his conviction, Weiss raised a number of grounds. Only one was considered to be of substance. It concerned the admission of evidence as to the age of T. Callaway, J.A.[37] explained why the evidence of her age was inadmissible and the ground should therefore be upheld:

“[59] By the time [Weiss] was being cross-examined on the 13^th day of the trial, the jury were aware that he and Ms Horstead had broken up some time after the murder of Ms Grey and that the reason, or ostensible reason, had been [Weiss’s] affair with [T]. They were not aware of [T’s] age. The prosecutor wished to ask questions designed to elicit the fact that she was only 14. He sought a ruling from the judge before doing so, saying:
‘My instructions are indeed the evidence of Jean Horstead in the first trial are that the reason why she had cross words with [Weiss] was that [T] was 14 and that he was carrying on with a 14 year old. Now that hasn’t come out as such in this trial, but [defence counsel] has led from this witness about Horstead’s credit as to why she was angry and that they had angry discussion. Now I want to put to him that one of the – one part of the angry discussion with him was that Jean was angry because this girl was 14. Now if he has got any objection to that, he can say that now, otherwise I will just do it. It is clear he asked him about the angry discussions and I want to fill in one of the details which, as I said, Horstead has given sworn evidence about it in the first trial and that is the reason why Horstead was angry.’

[60] His Honour ruled that the questions might be asked and that the evidence should not be excluded in the exercise of the Christie discretion. With great respect, I do not think that that ruling can be supported and Mr McArdle [senior counsel for the Crown] found it difficult to do so. In the first place, we are concerned only with [T’s] age. The jury already knew about the affair. Her age was not relevant to any issue in the trial. If it was probative at all, it was insufficiently probative. Secondly, evidence cannot be led from one witness solely to bolster the credit of another, even in cross-examination. It is not admissible for that purpose. Thirdly, if, contrary to my view, evidence of [T’s] age did have significant probative value, it was outweighed by its prejudicial quality. The jury became aware, in effect, that Weiss had had carnal knowledge of a girl of 14.”[38]

[37]With whom Batt, J.A. and Harper, A.J.A. agreed.

[38]R v Weiss (2004) 8 VR 388 at 396 [59]-[60] (footnotes omitted).

As we said at the outset, the Court nevertheless dismissed Weiss’s application for leave to appeal, holding that the proviso to s.568(1) of the Crimes Act (“the proviso”) applied. That subsection provides, in full, as follows:

“The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice and in any other case shall dismiss the appeal:
Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.” (emphasis added).

Callaway, J.A. concluded[39] that, given the weight of the evidence against Weiss, the jury at his trial would still have convicted him in the absence of the irregularity. His Honour said:

“I have always proceeded on the basis that the proviso may be applied where the wrong decision on a question of law or other irregularity made no difference and that that is all that is meant when it is said that an appellant’s conviction was inevitable. It was “inevitable” in the sense that this jury would still have convicted the appellant in the absence of the irregularity, not that he or she would have been convicted by any reasonable jury.“[40]
[39]ibid at 400-401 [70].
[40]ibid at 400 [70] (footnotes omitted).

The appeal to the High Court

Weiss sought special leave to appeal to the High Court on two grounds, namely, that the Court of Appeal had erred –

(a)in concluding that the trial did not miscarry on account of what was said to have been the misconduct of defence counsel; and

(b) in holding that the proviso applied.

Special leave was granted only in relation to the second ground, concerning the application of the proviso.[41] The transcript of the special leave application records Hayne, J. as having expressed the view that this Court’s decision concerning the misconduct of counsel was not attended by doubt and that the grant of special leave would be limited accordingly.
[41]Weiss v. The Queen (2005) 80 ALJR 444 at 447 [8].

On 15 December 2005, the High Court upheld the appeal, ruling that the Court of Appeal had erred –

“... by asking what the trial jury would have done had the wrongly admitted evidence not been before it. Approaching the task in that way was to divert attention from the question presented by the proviso and may (we do not say must) have led the Court of Appeal to a wrong conclusion about the application of the proviso in this case.”[42]

[42]ibid at 456 [48].

The High Court said that the Court of Appeal should have determined instead whether it could be satisfied that “no substantial miscarriage of justice [had] actually occurred”. That task had to be undertaken -

“ … in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.”[43]

[43]ibid at 454 [41].

The High Court therefore remitted the matter to this court, saying:

“It may be that on examining the whole of the record of the trial, the Court of Appeal will not be persuaded to the requisite standard that, allowing for the natural limitations on an appellate court, what the appellant said in his second interview with police can be accepted as proving, beyond reasonable doubt, his guilt of murder. But that is a question that the Court of Appeal has not yet addressed. The matter should be remitted for that Court’s further consideration. That reconsideration must take place because, in applying the proviso to s.568(1) of the Crimes Act, the Court of Appeal erred when the reasons that it gave are considered by reference to language of the Crimes Act expressing that Court’s appellate duty.”[44]
[44]ibid at 457 [58] (emphasis added).

The scope of the remitter

The order remitting the matter to this Court is to be understood as having been made in exercise of the power conferred on the High Court by s.37 of the Judiciary Act 1903. That section provides that:

“37. The High Court in the exercise of its appellate jurisdiction my affirm, reverse or modify the judgment appealed from, and may give such judgment as ought to have been given in the first instance, and if the cause is not pending then the High Court may in its discretion award execution from the High Court or remit the cause to the Court from which the appeal was brought for the execution of the judgment of the High Court; and in the latter case it shall be the duty of that Court to execute the judgment of the High Court in the same manner as if it were its own judgment.” (Emphasis added)

It was established very early in the life of the Commonwealth that the imposition on a State Supreme Court of the duty of executing a judgment of the High Court was a valid exercise by the Commonwealth Parliament of the power conferred by s.51(xxxix) of the Constitution.[45] It was also established at about the same time that, upon such a remitter, the Supreme Court has jurisdiction to make any order consequent on the order of the High Court for the purpose of executing the latter order but that the Court ought make no order inconsistent with the High Court’s order.[46]
[45]Bayne v Blake (1908) 5 CLR 497.
[46]Peacock v DM Osborne & Co (1907) 4 CLR 1564 at 1567-68.

It follows that our task in this matter is limited to a reconsideration of the exercise of the proviso, in the light of the High Court’s decision and in accordance with the approach there prescribed. The High Court’s refusal to entertain an appeal on the “misconduct of counsel” ground leaves undisturbed the conclusion arrived at on the appeal to this Court, namely, that there was one error – and one error alone – which fell within s.568(1).

Were it otherwise, and this Court were to revisit the question of error, the possibility would exist of a different decision being arrived at (as to the presence or absence of one or more errors) from that arrived at on the first occasion, the latter decision not having been appealed.

The test in Weiss

The focal point of the High Court’s judgment is its prescription that the task of considering whether the proviso is applicable –

“is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence.”[47]

That prescription was repeated recently, in the same terms, in the majority judgment of the Court (Gleeson, C.J., Gummow, Heydon and Crennan, JJ.) in Darkan v The Queen[48].

[47](2005) 80 ALJR 444 at 454 [41].

[48][2006] HCA 34 at [84].

Accordingly, it is appropriate to begin our application of the test in Weiss by referring to the way in which an appellate court decides whether a verdict should be set aside on the ground that it is unreasonable or cannot be supported on the evidence. As the High Court made clear in M v The Queen,[49] where that ground (“the unreasonableness ground”) is raised:

“[t]he question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.”[50]

[49](1994) 181 CLR 487.

[50]At 493 per Mason, C.J., Deane, Dawson and Toohey, JJ., with whom on this point Gaudron, J. concurred (at 508).

As the decision in M also makes plain, however, the unreasonableness ground does not turn on whether as a matter of law there was evidence to support the verdict. Rather, the court is to make its own independent assessment of all the evidence,[51] while at the same time paying full regard to two considerations, namely, that –

(a)the jury is the body entrusted with the primary responsibility of determining guilt or innocence; and
(b)the jury has had the benefit of having seen and heard the witnesses.[52]

[51]ibid at 492.

[52]ibid at 493.

The unreasonableness ground is approached on the basis that the court’s perception of the evidence may provide a guide to the jury’s perception of the evidence. If the court’s perception is that there is a reasonable doubt about the guilt of an accused, it will likely provide a reliable basis for answering the critical question of whether the jury should have had a reasonable doubt in relation to the charges against the accused. As it was put in M -

“[I]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.”[53]

[53]ibid at 494; see also Chamberlain v The Queen[No.2] (1983) 153 CLR 521 at 534 per Gibbs, C.J. and Mason, J.

A similar approach is required when dealing with the proviso. Driscoll v The Queen[54] was a proviso case. In a passage from Driscoll referred to by the High Court in Weiss,[55] Barwick, C.J. said that, for the purpose of applying the proviso –

“... the court will consider for itself the evidence and the inferences properly available therefrom. Where the credit to be given to oral evidence is in question, the court will act on that view which the court thinks the jury must have formed, having regard to the verdict they have returned or, where no inference can be relevantly drawn from the verdict, the view which the court thinks they could reasonably have formed.”[56]

[54](1977) 137 CLR 517.

[55](2005) 80 ALJR 444 at 454 [41] fn. 56.

[56](1977) 137 CLR 517 at 525.

The High Court in Weiss[57] referred also to a passage from Festa v. The Queen[58], another proviso case, where McHugh, J. highlighted the similarity of approach to the unreasonableness ground on the one hand and to the proviso on the other. His Honour said:

“Although the term ‘miscarriage of justice’ appears both as ground of appeal and as part of the criterion for determining whether a conviction should stand, the issue under each provision is different. In one, the issue is whether the jury must have had a reasonable doubt; in the other, it is whether the jury must have convicted. But that said, there is no reason why the role of a court of criminal appeal should differ in deciding these issues. In examining the evidence for the purpose of applying the proviso, the court should assume that ordinarily if it thinks that the accused must be convicted, so would a reasonable jury.”[59]

[57](2005) 80 ALJR 444 at 454 [41] fn.56.

[58](2001) 208 CLR 593.

[59]At 632 [123] (emphasis added).

The bringing to account of the jury’s unique perspective may work to the advantage or to the disadvantage of an appellant, depending on the circumstances. As the majority noted in M:

“It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.”[60]

Equally, as the Court said in Weiss, there will be –
“ ... cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial.”[61]

[60](1994) 181 CLR 487 at 494.

[61](2005) 80 ALJR 444 at 455 [43].

Elucidating the parallel with the unreasonableness ground, the High Court in Weiss (and again in Darkan) said that in considering the proviso:

“The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty.”[62]

In Weiss, the Court added that:
“There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction.”[63]

[62]Weiss at 454 [41] (footnotes omitted); Darkan at [84].

[63]At 454 [41].

The High Court in Weiss considered that, given the “very wide diversity of circumstances” in which the proviso falls to be considered, it was “neither right nor useful” to attempt to lay down absolute rules to be applied by an appellate court when it examines the record for itself. The Court identified, nevertheless, three “fundamental propositions”, as follows:

“First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Third, the standard of proof of criminal guilt is beyond reasonable doubt.”[64]

[64]At 454 [39].

The Court drew particular attention to the importance of the role of the jury, and the likely effect of the relevant error in determining the verdict which the jury returned. The Court said:

“… [T]he appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not ‘to speculate upon probable reconviction and decide according to how the speculation comes out’. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial.”[65]

[65]At 455 [43] (emphasis added) (footnotes omitted).

As is the case with the “unreasonableness” task, it is only by giving full weight to the role of the jury that we can avoid “substituting trial by a court of appeal for trial by jury”.[66] As Dawson J put it in Chidiac v The Queen[67] -

“ ... [A] court of criminal appeal must act upon that view of the facts which the jury was entitled to take, having seen and heard the witnesses.”

[66]M at 494.

[67](1991) 171 CLR 432 at 452.

The same point was made by McHugh, J. in Festa[68], in the passage referred to in Weiss[69], where his Honour said:

“Speaking generally, the court’s view of the evidence should prevail except where the error has so affected issues of credibility that the court cannot determine what are the primary facts of the case. In cases of circumstantial evidence, for example, the court’s view of the evidence should be regarded as the view of the reasonable jury unless of one or more circumstances has been affected by an error relating to credibility.”[70]

[68]Supra.

[69](2005) 80 ALJR 444 at 454 [41] fn. 56.

[70](2001) 208 CLR 593 at 632 [123].

To summarise, therefore, our task in considering the application of the proviso in the present case is to review the record for ourselves and decide whether, on the evidence at the trial, Weiss was proved beyond reasonable doubt to be guilty of murder. Only if we reach an affirmative conclusion on that question can it be said that no substantial miscarriage of justice has occurred.[71] In considering that question, we are to take account of the fact that the jury convicted him, and to give due weight to the advantage which the jury had in seeing the witnesses and assessing their credibility. We are also to bear in mind that there are some cases where it is possible to conclude that an error made at trial would, or should, have had no significance in determining the verdict that was returned by the trial jury.
[71](2005) 80 ALJR 444 at 455 [44].

In relation to the present case, the High Court said it was -

“…necessary to look beyond what the jury may be assumed to have accepted and for the Court, so far as it properly can, to judge the evidence for itself. That is best done in this case by focusing first upon the chief evidence against the appellant – his alleged admissions – rather than exclusively or mainly upon the two questions and answers that mentioned [T’s] age which must necessarily be considered in the context of the whole trial.”[72]
[72]ibid at 456 [51].

Was guilt proved beyond reasonable doubt?

We turn to consider whether Weiss was proved beyond reasonable doubt to be guilty of murder. As the High Court has emphasised, the focus of attention must be upon the issues and the evidence in the trial, and the instructions given to the jury by the trial judge. The findings of fact inherent in the jury’s verdict will, of necessity, assume great importance when making this assessment, as it is the possible contamination of the reasoning processes upon which the guilt of the accused has been based that will give rise to concerns about the correctness of their verdict.

In this matter, evidence of little or no probative value, but which did possess prejudicial quality, was admitted in the trial. Obviously, the possibility that its introduction may have contaminated the proceeding must be considered. We approach the question taking into account the perspective of a jury that is presumed to have acted reasonably in the circumstances of the trial. As we said earlier, the appeal court is not itself a jury which determines the guilt of the accused person; nor does an appellate court, in the performance of its function, have the advantage of seeing or hearing the witnesses or experiencing the atmosphere within which the evidence has been given in the trial.

While the evidence about T’s age undoubtedly created a further potential source of prejudice against Weiss, we fail to see that it would have assumed any significant weight or importance in the determination of the jury’s verdict. It is important to remember that Weiss was on trial for beating a person to death with a cricket bat. It can be reasonably assumed that the jury would have appreciated that it is a far cry from engagement in the kind of sexual misconduct admitted by Weiss to the commission of the horrendous crime charged. The jury was appropriately instructed by the trial judge regarding potential sources of prejudice in the trial, of which there were a number, and there is no reason to suppose that they failed to understand, or comply with, his directions.

It would be surprising if at least some members of the jury did not form the view that there was a generally unsavoury character about the milieu in which Weiss operated. As the High Court pointed out:

“Neither counsel nor the trial judge had invited the jury to conclude that the appellant’s evidence at trial could more easily be rejected by the jury because he was a man of poor character. There was a deal of evidence that revealed the appellant had done discreditable things with [T], when under-age. On the appellant’s own account of his dealings with Detective Thomas, he had asked to see him because he was a police officer who had dealt fairly with him when he was investigated for, and ultimately charged with, theft. There was frequent reference at trial to the appellant and others using drugs. ”[73]

[73]Weiss v The Queen (2005) 80 ALJR 444 at 457 [57].

At the same time, the assumption can safely be made that, whilst these features constituted part of the background of persons and interactions against which the evidence had to be assessed, the jury understood the nature of their role and responsibility and acted in accordance with the instructions given to them. This was well appreciated by Callaway JA, who expressed the opinion in his judgment – with which we agree – that -

“[the] jury were not going to believe Ms Horstead or disbelieve Weiss or convict him because of a sexual liaison, even with a child”.[74]

[74](2004) 8 VR 388 at 400 [69].

When the whole of the evidence is taken into account, it is, we consider, quite unrealistic to suggest that the introduction of the evidence as to the age of T could have played any significant part in the trial, whether directly through some form of impermissible propensity reasoning, by reason of its impact upon the credibility of Ms Horstead, Weiss or any of the witnesses, or because it contributed to an atmosphere of prejudice that may indirectly or subconsciously have influenced the jury adversely to Weiss. The only use made of it by the prosecutor was in support of his argument that the entry into this relationship provided Ms Horstead with an opportunity to extract herself from a very difficult situation. As Callaway, J.A. pointed out, the evidence was not deployed by the prosecutor as a matter going to Weiss’s credit[75]. On the other hand, although no reference was made to the age of T by counsel for Weiss, he argued that Ms Horstead was motivated to lie about his client by her anger at the fact that he had taken up with another woman.
[75]ibid.

For practical purposes, the Crown case at the trial was dependent upon the acceptance by the jury of at least one of the two confessions of responsibility for the death of the deceased made by Weiss. The first of them was made – if the jury accepted her evidence – to Jean Horstead. Her credibility was strenuously challenged, and a number criticisms could be, and were, properly advanced concerning her honesty, motivation and general reliability. Some of the detail contained in her version may well have been available to her from sources other than Weiss. With respect to some matters, Weiss claimed that she had taken information provided by him and adapted it to fit her version of their conversation.

There were discrepancies in and between her various versions, all of which were emphasized with considerable force by Weiss’s counsel. The defence argument was that, in assessing her evidence, the jury should accept the possibility that – “Hell hath no fury like a woman scorned”.

The strength of the jury system is frequently said to derive from the accepted ability of members of the community to make findings of fact, bringing to bear in the performance of their role their combined and individual experiences and understandings of human interaction. The possibility has long been recognised that an individual, who for some reason seeks vengefully to hurt or harm another, may attempt to achieve that objective through the giving of a false or distorted version of events involving the other person. There was nothing special about the present case in that regard, and the issues arising from Ms Horstead’s evidence would have been apparent even if – as was certainly not the case – nothing whatever had been said to the jury about them.

All of these features and arguments were before the jury and, it can reasonably be assumed, were given proper consideration by them. Notwithstanding the criticisms that could be made of the evidence of Ms Horstead, it simply could not reasonably be held that reliance upon it was productive of a miscarriage of justice or that a verdict based upon it could be regarded as dangerous, unsafe or unsatisfactory.

In our view, the acceptance of her evidence by the jury cannot be seen to have been influenced by the intrusion of the evidence of the age of T, which can be put to one side as an “unimportant side [issue] when viewed in the context of the trial.”[76] In the language of the High Court judgment, this is a case where it is –

“possible to conclude that the error would ... have had no significance in determining the verdict that was returned by the trial jury.”[77]

[76]Weiss v The Queen (2005) 80 ALJR 444 at 457 [57].

[77]ibid at 455 [43].

If the jury accepted the central features of Ms Horstead’s evidence, they were clearly entitled to return a verdict of guilty of murder. In any event, there was other and quite independent confessional material, in the form of admissions to the police, capable of supporting that verdict.

There was one matter which attracted the attention of the Court in the course of the present hearing, to which some reference should be made, as it does provide independent support for a critical part of Ms Horstead’s version of the conversation with Weiss on the night of the murder.

Ms Horstead claimed that Weiss had told her that he was positioned behind the couch, and that Ms Grey was lying on her side when he struck her with the cricket bat. That description correlated closely with the evidence of the forensic experts as to the respective positions of the deceased and the assailant at the time that the attack took place. As it appeared to be doubtful that a specific detail of that kind would have been known to any save those intimately involved in the events or the investigation, the Court queried during argument whether it was suggested in the trial that this information could have been obtained by Ms Horstead from any source other than Weiss.

We were informed that the only reference to it was in a short passage almost at the end of the lengthy, and sometimes aggressive, cross-examination of Ms. Horstead by defence counsel. It reads:

“Now, one of the things that you told the police in your second statement – and I mentioned it before lunch – was that the accused man said he came up behind the deceased, Helen Grey, and that she was laying on the couch. When did you first learn that she was, effectively, on the couch when she was struck with the cricket bat? I suppose you say it’s when the accused man told you; is that right?---When Bob told me the story that evening when he came home, yes.
Were you ever told or prompted about anything by the police in the course of their – in the year 2000, between May when you spoke with Mitchell, and September, when you made your statement, were you ever asked any questions that suggested to you, ‘Well, they’d probably want me to say such and such’; do you understand what I mean? Sometimes a question suggests an answer?---No, sir, I never felt that they’d put any questions like that to me.
Were you not given any information, ‘Look, it’s our belief that she was struck whilst laying on the couch, and someone’s come up behind the couch and hit her with a cricket bat as she lay on the couch’; nothing like that was ever said to you - - -?---No, sir.
- - - in order to prompt your memory as to what you were told by the accused or anything like that?---No, sir, never. Nothing like that at all.”[78]

[78]T 580-581.

No suggestion was made to any of the other witnesses that they had provided this information to Ms Horstead. Nor did Weiss in his evidence indicate that he made any such assessment, and he did not claim to have communicated any such opinion to Ms Horstead concerning what had occurred.

The second body of confessional evidence was in the second record of interview. As earlier mentioned, Weiss maintained his denial that he had gone to Helen Grey’s home on the night of the murder, until he was asked by Detective Sergeant Mitchell whether he had gone out again after returning home from soccer training. He then responded:

“She’s obviously already told you, right. … It’s pretty obvious to me that she’s told you, so you know exactly what’s goin’ on, you know exactly what I told her, right, so you’ve got a rough idea. What you’re lookin’ for is somebody to turn around and go right, there’s your man. I can’t do that. I’m really sorry. I would sooner sit than – than dog someone in and get done over out – out here. I’ve also got [T] to worry about, if somebody comes lookin’ for me.”

It was following that exchange, and upon being told that he was going to be charged with murder, that Weiss asked to speak to Detective Sergeant Thomas and subsequently made the admission that he had struck the deceased with the cricket bat.

The explanation he later gave was that he had falsely implicated himself, at the instigation of Thomas and Mitchell, in order to avoid a possible conviction for murder when he was guilty of nothing, and (presumably) because he thought that Ms Horstead had told lies about him. This purported explanation defies commonsense in the circumstances, and would undoubtedly have been so regarded by the jury. They may well have considered that a far more likely reason for his change of position was that, being aware of the detail that he had provided to Ms Horstead, Weiss recognized that he was no longer able to maintain that he was not involved in Helen Grey’s death and adapted his story accordingly.

Again, the reasonable possibility that the jury’s assessment of this confession would have been influenced by knowledge of the age of T can be safely discounted.

Conclusion

Based upon our consideration of the whole of the record, including the fact that the jury returned a guilty verdict, and bearing in mind the natural limitations of proceeding wholly or substantially on the record, we are satisfied that Weiss’s guilt was proved beyond reasonable doubt and that no substantial miscarriage of justice occurred.

Accordingly, we apply the proviso and dismiss the application for leave to appeal against conviction.

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R v Weiss (No 2) [2006] VSCA 161

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[2006] VSCA 161

17 August 2006