Robyn Lindholm v The Queen
[2022] VSCA 141
•20 July 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0202 |
| ROBYN LINDHOLM | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KYROU and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 26 May 2022 |
| DATE OF JUDGMENT: | 20 July 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 141 |
| JUDGMENT APPEALED FROM: | [2019] VSC 720 (Beale J) |
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CRIMINAL LAW – Appeal – Conviction – Murder – Joint criminal enterprise – Murder of de facto husband – Whether inadmissible evidence led in trial amounted to substantial miscarriage of justice – Unedited telephone intercept inadvertently played to jury – Found that irregularity did not affect outcome of trial – Whether verdict unreasonable or cannot be supported having regard to evidence – Certain witnesses alleged to be unreliable – Found that jury appropriately directed on credibility and reliability – Substantial body of evidence from non-impugned witnesses and forensics pointing to applicant’s guilt – Extension of time granted – Leave to appeal refused.
Criminal Procedure Act 2009, s 276(1).
M v The Queen (1994) 181 CLR 487, Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59, Libke v The Queen (2011) 230 CLR 559; [2007] HCA 30, Smith (a pseudonym) v The Queen [2022] VSCA 129 applied.
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| Counsel | |||
| Applicant: | Mr J Kelly SC with Ms K Mildenhall | ||
| Respondent: | Ms E Ruddle QC with Ms J Warren | ||
Solicitors | |||
| Applicant: | Leanne Warren & Associates | ||
| Respondent: | Ms A Hogan, Solicitor for Public Prosecutions | ||
PRIEST JA
KYROU JA
T FORREST JA:
Introduction
In 2005 the applicant, Robyn Lindholm, and George Templeton were cohabiting. They had been partners for about seven years. Templeton planned to celebrate the anniversary of his father’s death on the evening of 2 May 2005. He proposed to do so by consuming ‘a big chunk’ of a bottle of Metaxa spirits. At the time, the couple were living at 13 Tambo Avenue, Reservoir.
The applicant and a friend, Matilda Burke,[1] prepared dinner for the applicant. Also present for the dinner were Ross (Templeton’s teenage son) and Nathan Morris (an apprentice in a carpet business Templeton conducted with his brother, Nick Teazis). These latter two consumed their meal in Ross’ bungalow at the back of the Tambo Avenue house.
[1]Pursuant to the proceeding suppression order made by Jane Dixon J on 15 May 2018 under s 17 of the Open Courts Act 2013, the identity of this witness has been anonymised in these reasons to protect the safety of the witness.
Templeton became inebriated as the evening developed. He relaxed on a three-seater couch in the lounge room.
The applicant at this time was conducting a secret relationship with one Wayne Amey. Late in the evening, Templeton was drunk and possibly affected by marijuana. The applicant and Burke left the Tambo Avenue house under a pretext that Burke had to return to her house to provide lunch money to her teenage son for his next school day. The two women then drove to Trudgeon Avenue, Reservoir.
Whilst at Burke’s house the applicant is said to have received two mobile telephone calls. Burke thought the applicant received those calls on her second phone — a phone Amey had given her. After the second call, in which the applicant was heard to say ‘OK’, but not much more, she expressed a wish to go back to Tambo Avenue. The applicant and Burke then drove back to that address.
When they arrived at the Tambo Avenue house, it was apparent that Templeton was gone, as was his Holden Rodeo ute.
The applicant was charged with Templeton’s murder 11 years later, on 31 May 2016. The prosecution case at trial was that:
while the accused was at Trudgeon Avenue … Amey and another unidentified man came to the Tambo Avenue address and either murdered [Templeton] there and took his body away or abducted him and murdered him somewhere else later. The deceased’s body has never been recovered.
The prosecution alleged that the applicant was a party to the joint criminal enterprise to murder Templeton and that she left the house with Burke that night so as to facilitate the murder and to claim an alibi.
The first trial of the applicant took place in 2018.[2] Following a second trial, the applicant was convicted of murder on 26 September 2019. She was sentenced to 28 years’ imprisonment. Fourteen years of that sentence was directed to be served concurrently with a 25-year prison sentence the applicant was already serving, having pleaded guilty in 2015 to the murder of Amey. Thus the total combined effect of these two sentences was 39 years’ imprisonment. The judge directed that a new non-parole period of 30 years be fixed.
[2]For reasons irrelevant to this application the jury were discharged on the 9th day of the first trial.
The applicant seeks leave under s 313 of the Criminal Procedure Act 2009 (‘CPA’) for an extension of time within which to file notice of application for leave to appeal against conviction, and seeks leave to appeal on the following grounds:
Ground 1: There has been a substantial miscarriage of justice because:
1.1:Evidence that was ruled to be inadmissible because its probative value was outweighed by the danger of unfair prejudice to the applicant was led by the prosecution; and
1.2:The leading of that evidence could not be, and was not, cured by directions.
Ground 2:The verdict of the jury was unreasonable or cannot be supported having regard to the evidence.
Extension of time
The statutory expiry date for an application for leave to appeal in this matter was 5 December 2019. The application was filed a little over nine months out of time. The explanation given for this significant delay was related to the workload and personal commitments of counsel. It should be noted that the author of the written case and (presumably) the belated notice of application was not trial senior or junior counsel, nor counsel who appeared on the oral hearing of this application.
The reasons advanced for this delay are unsatisfactory. Time limits exist for sound reasons. There is a strong public interest in the achievement of finality in criminal proceedings with reasonable expedition.[3] This Court has a broad discretion whether to grant an extension of time the exercise of which involves not only scrutiny of the reasons for delay, but also the merits of the proposed appeal. The respondent focusses on the unsatisfactory nature of the reasons for the delay and opposes the extension of time. Given that the applicant is now serving one of the longer sentences imposed in recent times in this state, and that the respondent does not identify any specific prejudice that would attach to a belated extension of time, and that no fault can be attributed to the applicant herself, we will grant the application for an extension of time.
[3]Madafferi v The Queen [2017] VSCA 302, [11].
It is convenient to consider ground 2 first.
Legal principles
Section 276(1) of the CPA obliges the Court to allow an appeal if it considers that a jury verdict under appeal is ‘unreasonable or cannot be supported having regard to the evidence’. Setting aside a jury verdict is a significant step and not done lightly. This Court must undertake its own independent evaluation of the evidence, as a whole, in order to determine whether the jury must, as opposed to might, have entertained a reasonable doubt about an applicant’s guilt.[4] The appellate court must take into account the jury’s advantage in having seen and heard the witnesses.[5] Further, the composition of a jury, comprising as it does 12 jurors drawn at random from the community, will represent a broader experience of life than three appellate judges.[6] The collective good sense or wisdom of a jury cannot be underestimated.[7]
[4]Libke v The Queen (2011) 230 CLR 559, 596–7 [113] (Heydon J); [2007] HCA 30 (‘Libke’); Mejia v The Queen [2016] VSCA 296, [140]; Serjeant v The Queen [2020] VSCA 45, [4].
[5]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ) (‘M’).
[6]Abbas v The Queen [2022] VSCA 39, [11] (‘Abbas’) citing AK v The Queen [2021] VSCA 165, [23].
[7]Ibid.
In most cases, a doubt expressed by an appellate court will be a doubt that a jury ought to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by the appellate court that the court may conclude that no miscarriage of justice has occurred.[8]
[8]M (1994) 181 CLR 487, 494 (Mason CJ, Deane, Dawson and Toohey JJ).
In a circumstantial case, where the prosecution case rests upon inference, the same test may be stated a little differently. If, after a consideration of all the evidence, an inference consistent with innocence remains reasonably open, then there remains a significant possibility that an innocent person has been convicted. In those circumstances the jury would have been bound to have a reasonable doubt and it is the appellate court’s duty to intervene.[9] An inference consistent with innocence
must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable [jurors] upon a consideration of all the facts in evidence.[10]
[9]R v Hillier (2007) 228 CLR 618; [2007] HCA 13.
[10]Peacock v The King (1911) 13 CLR 619, 661 (O’Connor J) quoted in R v Baden-Clay (2016) 258 CLR 308, 324 [47] (French CJ, Kiefel, Bell, Keane and Gordon JJ); [2016] HCA 35 (emphasis in original); Abbas [2022] VSCA 39, [12].
Further, ‘it is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.’[11] This Court has also held, ‘[t]o compel a reasonable doubt the inference consistent with innocence must be reasonably open. If it is so, ipso facto the inference of guilt will not be the only inference reasonably open, and the appellate court will intervene.’[12]
[11]Libke (2011) 230 CLR 559, 597 [113] (Heydon J); [2007] HCA 30.
[12]Abbas [2022] VSCA 39, [12].
Complicity
It was common ground that the applicant did not carry out the act or acts that caused Templeton’s death. The case against her, as we have said, was put on the basis that while the applicant was at Trudgeon Avenue, Amey and another unidentified man came to the Tambo Avenue address and either murdered Templeton there, or abducted him and murdered him somewhere later. The applicant was alleged by the prosecution to be party to the joint criminal enterprise to murder Templeton.
The jury was directed appropriately as to the elements of joint criminal enterprise. In order to convict the applicant the jury must have been satisfied of the following:
(1)The applicant agreed with another person or persons to murder Templeton; and
(2)At the time of entering into that agreement the applicant intended that Templeton be killed; and
(3)The applicant participated in the joint criminal enterprise in some way; and
(4)In accordance with the agreement a party or parties to the agreement murdered Templeton.
In this case, as we have said, the prosecution alleged that the applicant and Amey agreed to murder Templeton. This agreement was said to be settled some time prior to Templeton’s disappearance in the early hours of 3 May 2005. The prosecution alleged that when the applicant entered into the agreement she intended that Templeton be killed, and that she participated in the execution of that plan.
The prosecution alleged that she participated in a number of ways, including facilitating the location from where Templeton was murdered or abducted; facilitating the entry and timing of that entry to this location by her accomplices; communicating the timing of the attack and Templeton’s state of inebriation to Amey; the pretext of leaving the Tambo Avenue address to go to the Trudgeon Avenue address to facilitate the appearance that Templeton had simply disappeared; providing the keys to Templeton’s Holden Rodeo to her accomplices and perhaps putting sleeping pills in Templeton’s pepper steak dinner.
The prosecution case on the execution of the agreement required that one of the accomplices murdered Templeton and that that act was within the scope of the agreement.
Evidence
It is necessary to set out a summary of the more important evidence. For the purposes of this appeal, the respondent has very helpfully provided a comprehensive schedule of evidence which has not been factually disputed. The following summary borrows heavily from that schedule, which we have checked for accuracy. We have modified and added to it where necessary.
Spiros ‘Ross’ Teazis[13]
[13]He is referred to as Ross throughout these reasons.
This witness is the son of Templeton. He moved into 13 Tambo Avenue about six months before his father’s disappearance. The applicant lived there with his father. Kara Decandia lived in a bungalow at the rear of the block. When she moved out, the witness moved into the bungalow. On 2 May 2005, he finished work at about 3:00 or 4:00 pm. He went to 13 Tambo Avenue with Morris and his father. The applicant and Burke were there. They cooked steak and vegetables for dinner. The witness had his dinner in the bungalow. Later, he saw all three sitting on the couch drinking. Later again, his father came into the bungalow to say goodnight. He stumbled up the stairs and was drunk. He said goodnight — he never drove when drunk. He seemed merry; happy. He never saw his father again. In the morning Morris came to the bungalow looking for Templeton. They went inside and asked the applicant. She said, ‘he’s not here’. In the days after he disappeared, the couch from the lounge room was moved to the sunroom by Burke and the applicant. The applicant said it had a red wine stain on it. His father’s boat had an anchor which was in it the last time they used the boat.
Nick Teazis
He is the deceased’s brother. He worked with him on 2 May 2005. Templeton was in a good mood and was planning to put a ‘big chunk’ in a bottle of Metaxa cognac that night. The witness spoke to him twice that night. On the second occasion, Templeton was inebriated and slurring his words. They discussed a job for the next day. He has not seen or heard from his brother since. The morning after the disappearance, the applicant rang him. She said George was missing or he hadn’t been home all night and she was concerned. The witness didn’t think too much about it because it ‘wasn’t uncommon’ for George to vanish for a day.
Nathan Morris
In 2005 he worked with Templeton as an apprentice carpet layer. He knew the applicant. On most Monday nights he had dinner at their house. On Monday 2 May 2005, he went back to George’s after work. He had dinner with Ross. It was steak with pepper sauce and vegetables. He went inside about 6:30/7:00 pm to say goodbye. George, the applicant and Burke were sitting in the three-seater lounge. They were drinking cognac and there was about a quarter of the contents remaining. When he left the (Holden) Rodeo was there. The next morning he went to 13 Tambo Avenue to go to work with George. The applicant told him George was not there. She said he had left while she was out and she got a text from him later saying he’d got himself into a bit of trouble and needed her help and he would contact her later with details. The applicant said she had gone out to Burke’s house to give her son some money for the next day. She showed the text to the witness. She said that George had taken the Rodeo. The witness noticed that in the lounge room the heater was on and there was a red general cleaning bucket next to the heater. He also noticed the covering on the couch near the window was gone. He had never seen George drink and drive.
Antoinette Velardi
The witness was the applicant’s next door neighbour. On 2 May 2005, she heard the motor boat start up at about 10:00 pm, she assumed it was George. The next day she saw the applicant about mid-morning. The applicant asked her whether she’d seen George, and that he went out at night and hadn’t returned. The applicant said that she went out between 12:00 and 12:30 am in the morning to go see a friend to drop off a child’s lunch money. She got a message from George saying that his car had broken down and that he’d call her later. When the applicant got home, he wasn’t there. The applicant thought that George may have gone to the cemetery for the anniversary of his father’s death. The applicant moved out a couple of weeks later.
Constable Claire McDonald
On Tuesday 3 May 2005, she was performing watchhouse keeper duties at the Reservoir Police Station. At about 8:00 am, she received a telephone call from the applicant who stated her fiancé George Templeton had not returned home the night before. She said she had received a text message saying he had some kind of trouble and would need a lift, but that he would ring later. The applicant said she was not concerned, assumed he was drunk and unable to drive home. She asked how long she should wait before reporting him missing. On 4 May 2005, the applicant came to the watchhouse at 8:10 am with Burke and Ross. She was upset and appeared to have been crying. She stated she and Burke left Tambo Avenue to go to the shops at approximately midnight and were gone for approximately 30 minutes. When they returned George was gone and the Rodeo was also gone. His jacket and wallet were still at home. No other personal items were gone. The witness asked to see the text message. The applicant checked her phone and said she must have deleted it accidentally.
Maxine Fensom
She employed the applicant on a casual basis in the late 1990s. She met Templeton through the applicant. The applicant told the witness that she was sick of George, he was an arsehole and was violent to her. The witness met Amey in 2003 and trained with him three times weekly. He formed a relationship with the applicant and talked about her all the time. He was upset about things the applicant said about George and said on a number of occasions that he was going to kill George.
Enisa Birdahic
This witness was a neighbour of Templeton. On 3 May 2005 at around 1:30 am she heard the gate at 13 Tambo Avenue slamming and car doors closing. She said this happened a lot so she wasn’t alarmed.
Matilda Burke
The witness had known the deceased for around 15 years. He was a friend of her ex-husband’s. She met the applicant a couple of years before 2005 at the Clifton Hill Hotel where they both worked. On 2 May 2005, she went shopping in Reservoir with the applicant around lunchtime. After dropping off the applicant at 13 Tambo Avenue, Burke went back to her own home to organise dinner for her mother and son. She then returned to Tambo Avenue around 5:00/5:30 pm. She saw George and Ross playing with a remote-controlled petrol car out the front of the house when she arrived. The witness and the applicant cooked steak and veggies with pepper sauce in the kitchen. George opened a bottle of Metaxa brandy or scotch in the kitchen and everybody had a drink. George downed more shots than the others. The witness, the applicant, George and Ross had dinner together at the kitchen table. They smoked marijuana in the lounge room. George continued drinking brandy. He looked ‘pretty stoned’.
The witness was asked to come into the kitchen by the applicant, who then asked Burke to make an excuse to go to her house so that the applicant could meet Amey. During this time, the applicant and Amey were having an affair. The witness would drive the applicant to Hawthorn so that Amey and her could meet. It was a very intense and physical relationship. The witness agreed to drive the applicant to her house and made the excuse that she needed to give her son some lunch money for school the next day. The applicant told George where they were going. They left 13 Tambo Avenue after 9:00 pm and drove to the witness’ home, which didn’t take long. As the witness was getting out of the car, the applicant’s phone rang and she was talking to Amey. At that time the witness had her ‘normal phone’ and another phone that Amey had given her. Inside, the witness left money out for her son and then she and the applicant went into Burke’s bedroom. The applicant then received another call on the phone that Amey had given her. She heard the applicant say, ‘okay, all right.’ When the applicant hung up she asked the witness, ‘can you take me home’.
At 13 Tambo Avenue, George’s work ute was gone from out the front. The applicant let them into the house. Nothing seemed different or odd about the premises and George was not there. In the lounge room, the applicant told the witness ‘that Wayne Amey had paid somebody to help him get rid of George’. The person who was paid was ‘a nasty piece of work’. The applicant told the witness to stick to the story, that they went to give her son some money.
The witness once overheard the applicant and Amey saying that they should bump George off, but the witness thought they were just joking.
The witness stayed the night at the applicant’s house. The applicant received a text message from George’s phone, the witness couldn’t remember at what time. The text said he was having some trouble. The applicant tried to ring George’s phone a few times.
The next morning, the witness woke up and the applicant was in the bed next to her. They were woken by Morris knocking on the front door around 7:00 am. He said he wanted to know where Templeton was because they were supposed to be doing a job. The applicant told Morris and Ross that Templeton had gone out and hadn’t come home.
The next day, 4 May, the witness took the applicant to the Reservoir police station.
At one stage, the witness made a statement at the Preston Police Station. She did not tell the police the truth about what had taken place that night. She only said that Templeton had gone out and hadn’t come home.
Two weeks after Templeton’s disappearance, the applicant moved to Amey’s house in Surrey Hills. She got rid of everything that was George’s at 13 Tambo Avenue. She sold his cars and motorbike. Amey helped her.
When the applicant moved to Surrey Hills, Templeton’s boat was stored at the back of the witness’ house until the boat was sold six months later.
The relationship between the applicant and Templeton leading up to May was ‘a bit strained at times’. She described him as ‘the plastic gangster’.
The applicant and Amey later moved into a penthouse in Hawthorn. One night when the witness was driving the applicant, she brought George up and, talking about him as a deceased person, said he was ‘by the water or something’.
On another occasion following Templeton’s disappearance, the witness and the applicant were at the home of the applicant’s mother. Her mother asked what was going on with George. The applicant mouthed to her, ‘Wayne did it’. She was smiling when she did this.
The witness also said that the applicant would refer to Amey as ‘Batman’.
In cross-examination, the witness agreed that in August 2015, when she was visited by two Homicide Squad detectives, her account was exactly as it had been from May 2005. That is, she and the applicant left 13 Tambo Avenue late at night to give her son lunch money and upon their return, George was gone. She agreed that this was the account she gave in the first trial at the Supreme Court in 2018 and earlier at a committal hearing in the Magistrates’ Court in 2017.
A recorded telephone call between the witness and the applicant from August 2005 was played in the courtroom. The witness said ‘look, I’ll tell them I don’t know anything’ in the recording. The witness agreed in cross-examination that here she was telling the applicant that she ‘was going to stick to the story’ when speaking to police.
The witness was called to give evidence at the first trial of the applicant on 11 May 2018 before a judge of the Supreme Court. In re-examination in the second trial the subject of this appeal, she admitted that she gave false evidence on this date. After giving evidence on 11 May 2018 when she was sitting outside the courtroom, the applicant was taken past in handcuffs and smiled at the witness. Further, the witness had found it upsetting to hear her late mother’s voice in a recording played to the courtroom. These events motivated the witness to contact the police. She ‘just wanted to tell the truth’. The next day the witness told Detective Senior Constable (‘DSC’) Berens that Amey had paid somebody to help him get rid of George and the applicant was aware of it.
Deborah Teazis
The deceased was her brother-in-law. On the morning after the disappearance, the applicant rang John Teazis, Templeton’s brother (and the witness’ husband). She went to a media appeal at Preston Police Station on 13 May. She observed the applicant and Burke there, doing their hair and makeup, laughing and giggling before the cameras started. Later back at 13 Tambo Avenue she was in the kitchen with the applicant, Burke and Ross. The witness said: ‘I’m expecting George to come in and want to know what I’m doing here’. The applicant looked at Burke, laughed and replied, ‘I wouldn’t worry about it, he’s not coming back.’ The witness told her husband about this conversation.
John Teazis
This witness is Templeton’s brother. He spoke to Templeton about one month before his disappearance. Templeton sounded upset and distressed, there were obviously some issues in the relationship with the applicant. They later caught up at Tambo Avenue. The witness asked the applicant if everything was all right. She replied that everything was fine and that she and Templeton were planning a trip to Queensland. On the morning of 3 May 2005, he received a call from the applicant. She seemed quite concerned and asked the witness if he had seen his brother because he didn’t come home that evening and whether he had any idea where Templeton might be. The day of that phone call, the witness dropped in to Tambo Avenue to see if he could assist. The witness asked the applicant what had happened. She said: ‘Look. You know, everything was fine’, she went out that evening to catch up with her friend [Burke] and left George asleep on the couch.
On 13 May 2005, his wife Deborah Teazis came home from a media appeal distressed and concerned. She recounted a conversation she had with the applicant at 13 Tambo Avenue after the media event. Deborah Teazis said to the applicant that she was expecting George to walk through that door and the applicant replied along the lines of, ‘oh he won’t be coming back’, appearing slightly amused about that.
Kyle Elliot
This witness commenced a relationship with the applicant in 2010 or 2011. At this stage the applicant was still in a relationship with Amey, but it was not going well. On several occasions the applicant stated to him that she had killed her former partner George. The first time the witness was told this was before he went to gaol for 15 months in March 2012. The applicant said he had gone missing and that she had killed him. She said she drugged him and beat him to death with a fire poker. She put the music on really loud. The applicant said she had drugged him with sleeping pills on a pepper steak that she had prepared. She said there was blood and stuff everywhere; there was blood on the couch he had fallen asleep on. She said they had to dismantle the couch he’d fallen asleep on and get rid of it. The applicant said there was blood on the walls and that she had help moving the body which was dumped in Port Phillip Bay. The witness said the applicant told him that Ray Kelly had been lined up to kill him but had ‘dropped his nuts at the last minute’ and couldn’t do it. She said to the witness that she was arrested riding a little motorbike and she referred to using it as an alibi. She said she was arrested with Burke. She said the boat was missing its anchor because it was tied to George. She said that Amey had a piece of George’s jewellery — a gold chain with a cross. She said she had been questioned by police several times and that she used to play the victim. She said George was violent and used to rape her. Amey also told the witness that George was violent. The witness said that the applicant used to sing a song about someone being under the deep blue sea. She used to say that’s where George was, swimming with the fish.
In cross-examination, the witness admitted that he was a long-term drug user and was using ice daily when he met the applicant and he had a number of criminal convictions.
Aaron Ardley
He met the applicant in mid-2012, through a friend. After three or four months, he started a secret relationship with her. They were together for nine to 12 months. The applicant led the witness to believe that her relationship with Amey was not good or had ended at that time. She told the witness about her previous relationship with George. She said she was gang raped by him and a number of his mates and locked in a cupboard for days. She said she had killed George. She said she killed him at his house in Preston. She was with another man, although the witness was not 100 per cent sure on this. She said George was chopped up and dismembered on a boat and she threw him off the boat. The applicant said to the witness that she had help from a Hell’s Angels bikie named Ball Bearing, although the witness was not sure of the nature of his involvement. The witness went to Amey’s gym once with the applicant. He saw, inside a safe in Amey’s office, a gold pendant that had a pattern. The applicant later told him that it was a trophy that was George’s and she had taken it when they killed him. She used to make jokes about George or someone being under the sea, something to do with swimming with the fishes.
The witness accepted that he had sustained a head injury as a consequence of being thrown from the roof of a car.
In cross-examination, the witness accepted that he had not mentioned his trip to Amey’s gym with the applicant and seeing the pendant until his police statement given on 27 April 2018 ahead of the first trial, despite having been spoken to ‘on numerous occasions’ by police officers before then.
The witness admitted that at the time he made his first formal statement to police on 13 January 2014, he was worried about going to gaol for a number of pending criminal charges. In exchange for making statements to police, the witness received indemnity and letters of comfort for three unrelated criminal matters.
The witness also admitted that he was a long-term drug user and had a criminal history.
Kara Decandia
She first met the applicant in 2003 or 2004 at the Clifton where the applicant worked. The witness used to drink there with her girlfriend and became friends with the applicant. The witness moved into the bungalow at the back of the applicant’s house and stayed there for six or seven months, leaving in August or September 2004. The applicant would confide in her that she was very unhappy with George because he was very controlling. He would follow her to jobs sometimes. Whilst the witness was living in the bungalow, the applicant was secretly seeing Amey. She had a second mobile phone which was for Amey and other contacts she wished to keep private. The applicant also kept a small pistol in the bungalow. The applicant said to her that the only way she could get away from George was to kill him. She said she had a plan to shoot him, wrap him in a rug from the lounge room and take him out to Port Phillip Bay. One option she talked about was shooting him on New Year’s Eve when fireworks would camouflage the noise. She talked about getting him ‘really smashed’ to make it easier. She discussed these plans with the witness quite a few times. She said she would then be free to live with Wayne. She said she would lie low for a little while and she would be a ‘very demure and upset girlfriend’.
The witness left the bungalow after she was accused of stealing money from the applicant’s wardrobe.
When she found out Templeton was missing she didn’t come forward out of fear for her safety.
In cross-examination, she stated that she knew George was a drug dealer and a standover merchant. She stated that she became quite close to George and came to regard him as a sort of ‘brother’. She did not warn him of the applicant’s plan to kill him. She said the reason she didn’t call him was because she left on bad terms. She agreed that she had given different accounts to police about the presence of bruises on the applicant in 2016 and 2017. She agreed that in 2005 and 2016 when she spoke to police she said nothing about the New Year’s Eve plan and she only told police about it in 2017. She said she didn’t think she would be believed, she was scared of the applicant and in the past she had said she thought the New Year’s Eve conversation was hearsay.
Annabel Plunkett[14]
[14]Pursuant to the proceeding suppression order made by Jane Dixon J on 15 May 2018 under s 17 of the Open Courts Act 2013, the identity of this witness has been anonymised in these reasons to protect the safety of the witness.
The witness met the applicant while in custody in the Dame Phyllis Frost Centre in early 2014. The applicant was in the adjoining cell. She had daily contact with the applicant until 23 April 2015 when she was released on parole and then from 15 May 2015 when she was returned to custody. On one occasion, another prisoner came up to the table where the witness and the applicant were sitting. The other prisoner produced a newspaper and put it in front of the applicant. It showed a picture of two males and a female. One of the males was called George. The applicant said she’d already been questioned and ‘they haven’t got anything’. Later, the witness and the applicant went for a walk. The applicant said that she killed George, that she did it while she was on top of him and that she slit his throat as he came (the witness assumed they were having sex). A person called Ray was waiting for her downstairs and wanted to know why she was taking so long. The applicant laughed because she had forgotten he was downstairs and said he was too heavy, she couldn’t lift him. She said, ‘he raped my dog. And he killed my dog, and he threatened my family. He was going to burn them alive. He bashed me, he raped me, his friends raped me. I come out of a tied up cupboard one time’. She said she killed him because she couldn’t leave him. She told the witness that George was at a place he hated and that he was buried in a cemetery. The applicant and the witness asked the librarian to remove the article from every copy of that newspaper.
On 25 September 2015, the witness received a Minnie Mouse birthday card from the applicant. Inside the message read, ‘To my beautiful friend … Lots of love from your 5-8 for life, Robyn Banx xoxo 2015’.
Not long after the applicant told her that she had killed Templeton, the witness spoke about it to a prison officer. She ended up speaking to the police and making a statement. Later that day another prisoner, Martine, handed her a note and said she better go and see Robyn. The note read, ‘No matter how good or bad your life is, wake up each morning and be thankful you still have one’. The witness went and spoke to the applicant — the witness said ‘what’s this’? The applicant said, ‘Be careful’. The witness became distressed and the applicant said, ‘There’s no point questioning anyone. I haven’t told anyone anything.’ The applicant then gave the witness a hug and said, ‘do the right thing’. As the witness walked away, she said to the applicant, ‘if it was anyone other than you, [I’d] do it Robyn’. The applicant said, ‘No you wouldn’t … did you sign anything?’ The witness replied ‘No’ and immediately requested to be transferred into isolation.
In cross-examination, the witness accepted that not long before she spoke to a supervisor from Corrections Victoria about the applicant telling her she had killed Templeton, the witness had learnt that her children had been removed from their father’s care and she wanted to change her situation.
Coral Dyason
She worked in the library at the Dame Phyllis Frost Centre. On one occasion the applicant came in and asked her to get rid of some articles from the Herald Sun as she would prefer they were not available for everyone to see.
Jordan Diamandis[15]
[15]A pseudonym.
This witness is Burke’s son. He remembered an occasion in early May 2005 when his mother came home with the applicant. They arrived around midnight and his mother left lunch money. They then went to her bedroom, stayed for about 20 minutes and then left. He didn’t phone his mother that evening. She stayed at the applicant’s house that evening. Templeton went missing the next day or the day after.
Detective Senior Sergeant Paul Lloyd
On 16 August 2005, the witness was attached to the Homicide Squad. He searched Amey’s address in Surrey Hills. He located:
•A photograph of Amey and the applicant. (Exhibit 11)
•A Valentine’s Day card dated 2003 with a message, ‘To Wayne, thank you for just being you, you really make me happy. Love Robyn’. (Exhibit 12)
•A Christmas card with a message inside: ‘To the most precious person that ever walked this earth – Wayne … I love you so much I can’t wait to wake up next to you each day, [love heart], Robyn xxxx’. (Exhibit 13)
On the same day, a search warrant was executed at 1207/377 Burwood Road, Hawthorn. This was the penthouse apartment used by Amey and the applicant. A Claude Monet diary was seized. The name ‘Robyn Lindholm’ was written on the inside cover with contact details. Amongst other entries were:
•2 May 2005: love heart with arrow.
•3 May 2005: the word ‘Batman’ surrounded by love hearts with arrows through the centre of them.
•31 May 2005: ‘Shifted to Hawthorn’.
Dale Fanning
The witness said he knew Amey for many years. He heard about a boat for sale. He bought the boat from the applicant on 30 December 2005. His memory was that the boat did not have an anchor at the time of purchase.
Lyam Murray
Fanning is his father. He stated that when they went out on the boat his father bought in 2005, it did not have an anchor.
Forensic evidence
The forensic evidence component of the case can be summarised more efficiently.
At 13 Tambo Avenue, Reservoir, forensic scientist Stephen Fowler, who has qualifications in bloodstain pattern analysis, made the following observations:
(a)Lounge room
•Area one — three spatter bloodstains were on the windowsill. He formed the opinion that force in addition to gravity had been applied to a source of liquid blood to the right of that surface.
•Area two — he observed a cluster of seven spatter bloodstains on the bottom section of the right window frame. He formed the opinion that some degree of force in addition to gravity was required to break up the droplets into the observed size. The source of the stains was within two metres of the surface.
•Area three — on the wall below the bottom edge of the window frame he observed 10 spatter stains and formed the opinion that force in addition to gravity had been applied to a source of liquid blood proximal to the surface.
The witness stated that further testing on the swabs taken of areas one, two and three confirmed the presence of blood.
(b)Back room
On the couch in the back room the witness observed the presence of possible spatter stains distributed over the right side of the back-rest of the couch, extending on to the top edge. He directed that a large section of the fabric be cut from the couch for later analysis. Further testing confirmed the presence of blood.
Other areas of possible blood staining were located throughout the house although blood could not be positively confirmed. These were:
•Area L1 — cluster of at least 100 spatter stains indicative of an expirated bloodstain pattern on the door frame to the lounge room.
•Area H1 — on the wall in the hallway the witness observed a cluster of at least 50 spatter bloodstains, likely to be an impact pattern.
•Area H2 — a wall area near Area H1, where there were at least six transfer stains.
Mr Fowler’s overall conclusion based on the spatter staining distributed over the long couch and the widely disbursed clusters of spatter staining on and around the lounge room window, was that one or multiple events of force were applied to liquid blood at the east end of the lounge room.
A silver metal Stanley knife, also located at 13 Tambo Avenue, displayed two stains towards the end of the handle. These were sampled and confirmed to be blood.
A forensic scientist at Victoria Police Forensic Services Centre, Julie McCall conducted a DNA analysis of the samples taken from the areas observed by Mr Fowler. Her findings were:
(1)Area 1 (the three spatter bloodstains on the windowsill) swabs confirmed to be blood. A single source DNA profile was obtained. It was 120 million times more likely that Templeton was a source of the DNA ‘in the blood’, than if he was not a source of that DNA. The DNA evidence provides extremely strong support that Templeton was the source of that DNA.
(2)Area 2 (cluster of seven spatter bloodstains on the bottom section of the window frame) swabs provided the same result.
(3)Area 3 (10 spatter stains on the wall of the lounge room below the bottom edge of the window frame) swabs provided the same result.
(4)Area 4 (not confirmed to be blood; no evidence before the jury as to their location) swabs provided the same result.
(5)Sample 2A (blood on casing/handle of Stanley knife) provided the same result.
(6)Sample 5A (blood stain on the couch fabric) provided the same result.
(7)Sample 5B (stains on the couch fabric) provided the same result.[16]
[16]Ms McCall stated that ‘a central stain was selected and confirmed to be blood’: this was sample 5A. ‘The remaining stains were then excised and combined as one sample for DNA testing’: this was sample 5B. It is not explicit from the witness’ evidence whether these stains were confirmed to be blood, however it appears to us to be a safe assumption that they were.
We interpose to reiterate that all seven results referred to above yielded a single source DNA profile that was 120 million times more likely to be Templeton’s DNA than not, and this provided extremely strong support that Templeton was the source of that DNA. Further, at five of the seven sites above (the exceptions being Area 4 and Sample 5B), the presence of blood was detected at the site that provided the above DNA evidence.
In cross-examination, the witness confirmed that the presence of blood was determined by a different process to that which determined the presence of DNA from biological material. The presence of blood was determined by a test called haemochromogen which is a confirmatory test for blood but does not disclose whether the source was human or some type of animal. The witness, however, stated that she could say (if it be the case) that from a particular blood sample a human DNA profile was obtained.
Other prosecution witnesses
Inspector Juliann Goldrick was performing duties for Preston Crime Investigation Unit on 6 May 2005. On that day she took a four-page statement from the applicant. The statement contained the following assertions, amongst other matters:
•I have been going out with George Templeton for seven years.
•George was heavily into the drug scene. He used speed, cannabis and would smoke cocaine. He would deal drugs to support his habit.
•George cleaned up his act after being arrested and gaoled for carrying drugs and a gun about two years ago. After that to my knowledge he didn’t deal drugs or use them anymore.
•On Monday night[17] we were at home. George came home from work. My friend [Burke] came over. We made dinner and drank a bottle of Metaxas brandy between the three of us. George also smoked a small amount of cannabis.
•At about midnight [Burke’s] son called her. She had forgotten to leave lunch money out so we decided to get in her car and go to her house. ‘It was a stupid thing to do I know because we’d been drinking, but we did it anyway … we were probably gone for about an hour.’
•When we left [my house] George stayed there. He was heavily asleep on the couch. He asked me to get him some bread and cigarettes while I was out.
•When we got back George was not at home. ‘His Rodeo was gone as well so I assumed he’d gone to the shop for ciggies as I was taking too long.’
•I sent him a text message but got no reply. I went to bed a bit later, probably about 2:30 am.
•George’s wallet, money and ATM cards were still at home.
•At about 2:40 am I received a text message from George. It read, ‘got problem ned a lift wl call soon cum get me.’ I tried to call him back straight away but his phone said it was off or out of service area.
•George hasn’t gone away like this before.
•I am beginning to think George may be getting back into the drug scene.
[17]Incorrectly dated 1 May 2005.
Detective Acting Superintendent Damian Jackson attended at 13 Tambo Avenue on 16 May 2005 and obtained a further statement from the applicant. In short, she stated:
•The last time I saw George he was sitting in the single chair in the lounge room. He was drunk.
•We decided to move the couch because the back was broken and it was uncomfortable.
•Burke and her son Jordan helped Ross to move the couch. ‘Both the couches that we moved out the back room are covered in stains and have been partied on hard. I don’t know how any of the stains have been caused.’
•George and I have occupied this house for three years in December 2005.
•George’s phone is missing.
•George wears a big thick gold chain around his neck with a gold cross. The cross is Jesus on a guitar.
On 16 August 2005, the witness conducted a record of interview with the applicant. (Exhibit 21.) The applicant essentially gave the same account as above.
Inspector Shane Brundell, in May 2005 was attached to the Homicide Squad’s missing persons unit.[18] He attended 13 Tambo Avenue on various dates in May 2005 and collected a Ventolin inhaler, a Metaxa bottle and other personal items. On 13 August, he ascertained that Amey was in Perth with the applicant. The Rodeo was discovered on 16 May 2005, however he didn’t inform the applicant of that until August 2005. This was done to lay a false trail hoping it would excite recorded conversation between the applicant and Amey.
[18]Mr Brundell was a Detective Sergeant in 2005.
DSC Berens is the informant in this matter. He conducted checks as to whether there were any signs of Templeton being alive since 3 May 2005. This included checks of bank accounts, national police agencies, the Coroner’s Court, Medicare and Templeton’s passport. There is no indication that Templeton is still alive.
DSC Berens stated that Burke made a new statement during the applicant’s first trial in 2018. On Friday 11 May 2018, after giving evidence, she was driven back to her motel room. Later, DSC Berens received a telephone call from her. She said, ‘I need to see you tomorrow’. He met her the next day with Detective Sergeant Nick Densley. She said certain things and was placed under arrest for perjury and attempting to pervert the course of justice. She spoke to a solicitor and was interviewed and then provided a ‘detailed’ statement. At the conclusion of the interview she indicated she didn’t want to make a further statement, however she became very upset, changed her mind and wrote a statement which she signed as being true and correct.
Telephone intercepts were played to the jury (see [92] below) and the witness explained the warrants that authorised those interceptions and the identities of the participants. The police summary for Burke’s perjury plea was tendered and reads as follows:
As at 2 May 2005 George Templeton, herein referred to as the deceased, and Robyn Lindholm herein referred to as Lindholm, had been involved in a relationship off and on for approximately seven years and had been engaged for the previous two years. On Tuesday 3 May 2005 the deceased was assaulted at 13 Tambo Avenue Reservoir resulting in his death. The deceased’s body was then removed from the house and disposed of. The remains of the deceased have never been recovered. On 4 May 2005 [Matilda Burke], herein known as the accused, and Lindholm reported the deceased as missing at the Reservoir police station. On 6 May 2005 the accused attended the Preston police station where she made a statement to the police detailing what she did on the night the deceased went missing. On 1 August 2005 the accused was arrested and interviewed at Preston police station in relation to the disappearance and suspicious death of the deceased. The accused detailed again what she did on the night the deceased went missing. In late 2015 investigators from the Homicide Squad re-opened the investigation into the disappearance and suspected murder of the deceased. In June 2016 Robyn Lindholm was charged with the murder of the deceased. In June 2017 during a contested committal at the Melbourne Magistrates’ Court the accused gave evidence, adopted her statement as being true and correct. Robyn Lindholm was committed to stand trial for the murder of the deceased. The trial of Robyn Lindholm commenced in April 2018 in relation to the murder of the deceased at the Melbourne Supreme Court. The accused repeated and acknowledged the affirmation in this trial on Friday 11 May 2018. Prior to the accused giving evidence the prosecution made application to cross-examine the accused, which was granted by the presiding judge. During cross-examination by the prosecutor the accused was asked if Robyn Lindholm had told her she had a telephone, which she used specifically to contact a particular phone that Wayne Amey had, and that they would only use to contact each other. The accused replied ‘no, not that I ever saw, no’. The accused was further asked if she was only aware of one telephone and the accused replied yes. During further cross-examination by the prosecutor the accused was asked if she knew the nickname of Wayne Amey to which she replied she didn’t. During further cross-examination the accused admitted that she lied and that in fact she knew his nickname was ‘Batman’. The accused concluded giving her evidence for the day and was due to give further evidence on Monday 14 May 2018. On 12 May the accused was arrested and interviewed at the Docklands police complex as a result of the accused making contact with the police the previous night and requesting to meet investigators. The accused made full admissions to the fact that she had lied to the Melbourne Supreme Court on 11 May 2018. The accused indicated that she had lied to the Melbourne Supreme Court because she was scared of Robyn Lindholm, and an unknown male that helped dispose of the deceased with Wayne Amey because she thought she might be next. The accused then made a statement at the conclusion of the interview detailing everything that happened on the night in relation to the deceased. The accused then made a third statement clarifying some points in her second statement.
DSC Berens confirmed that an article appeared in the Herald Sun on 27 June 2015 which showed a photograph of the applicant and other photographs of two males. One of those males was Templeton.
The informant was also called as a witness in the defence case and confirmed that he took a statement from a man nicknamed Ball Bearing. He confirmed knowing Amey and the applicant. He denied knowing what happened to Templeton.
The Metaxa bottle was tested for traces of sedative — none were detected.
Telephone intercepts
A summary of the time and content of relevant telephone intercepts has been prepared by the respondent. Its contents were not disputed on this application. We are grateful for the industry that went into the production of this summary. It is convenient and efficient to simply reproduce the summary. The summary includes the respondent’s assertions about certain identities referred to in the calls. These assertions were not disputed at trial or on the appeal:
CALL NO
DATE AND TIME
SUMMARY OF CALL
49
28 May 2005 at 12:35 pm
Lindholm call to [Matilda Burke]
- Lindholm speaks about going home.
- [Burke] suggests ‘he’ drops Lindholm at her place first, so she and Lindholm can go back to Lindholm’s together.
- [Burke] tells Lindholm she is scared people are going to ask questions.
- Lindholm agrees it is better to go to [Burke’s] house.
141
30 May 2005 at 9:30 am
Lindholm call to M Rickwood
- Lindholm tells Rickwood that George has been missing for a month and they [police] are ‘going through her pretty hard’.
- Lindholm says, ‘I couldn’t get away from him, mate. Ah-ha, but I’ll have to see you to talk to you’.
7 and 8
3 June 2005 at 4:12 pm and 4:18 pm
Lindholm call to Wayne Amey
- Lindholm and Amey laughing and joking.
- Discussion about penthouse, taking photographs.
- They arrange to meet that evening at home.
20
4 June 2005 at 9:29 pm
Wayne Amey call to Lindholm
- Lindholm talks about moving her property out of Tambo Avenue and getting rid of the deceased’s property.
- Lindholm states she wants to get Ross Teazis out of the house.
23 and 25
4 June 2005 at 1:09 pm and 3:23 pm
Wayne Amey call to Lindholm and then Lindholm call to Amey
- Discussion about the removal of items from Tambo Avenue.
51
5 June 2005 at 5:48 pm
Wayne Amey call to Lindholm
- Discussion about Lindholm putting her personal photographs and anything that’s special in Amey’s safe.
589
6 June 2005 at 10:20 am
Lindholm call to Rosemary Kevekordes
- Lindholm says she has stopped working because it’s too dangerous at the moment.
- Lindholm claims she has to find a place for Ross Teazis to live because he’s with her.
- Lindholm says police came and went through her thoroughly and she was quite amazed when they didn’t find much.
- Lindholm complains that the police have turned her life upside down.
78
6 June 2005 at 4:26 pm
Lindholm call to Wayne Amey
- Lindholm says that Mifsud offered to take any furniture from Tambo that Lindholm did not want.
- Lindholm says ‘So the kid and all the stuff I don’t want (laughs) will be gone. So I’ve just got to worry about my own stuff.’
- Lindholm says that she told Mifsud that she was going to get a couple of bikies she knows to help Mifsud move property out of Tambo.
- Lindholm says that the fridge and washing machine can be sold because they’re worth something.
- Amey says ‘Well you’ll have an extra spring in your step now.’
- Discussion about giving Mifsud the couch in the loungeroom and that the old couch can be dumped.
- Lindholm tells Amey she loves him.
84
6 June 2005 at 2:32 pm
Lindholm call to Wayne Amey
- Discussion about the next night and getting the keys to the penthouse.
92
7 June 2005 at 9:54 am
Lindholm call to Wayne Amey
- Lindholm tells Amey that her mother has commented on how happy and different Amey is.
- Lindholm tells Amey that she responded to her mother ‘Yes, we both are.’
646
8 June 2005 at 12:20 pm
Dorothy Burke[[19]] call to Lindholm
- Lindholm discusses selling the washing machine from Tambo and how much it would be worth.
- Lindholm tells her mother she’s at the gym.
- Lindholm says she’s been at the ‘unit’ and that she has quotes coming in for curtains.
686
9 June 2005 at 12:09 pm
Dorothy Burke call to Lindholm
- Lindholm tells Burke that they are no longer going to move the boat to the farm and will leave it at [Matilda Burke’s] house.
- Lindholm says she might have a buyer for it, otherwise she’ll sell it on the internet.
781
10 June 2005 at 6:07 pm
Lindholm call to D/S/C Shane Brundell
- Lindholm asks if he has any news.
- Brundell says there are no new leads.
- Lindholm claims that she’s living at Tambo and says she doesn’t want to uproot Ross Teazis at the moment.
- Lindholm claims that she and Ross are freaked out and scared and don’t know what to think.
- Lindholm asks about what to do in relation to the repayments for the Rodeo.
1020
14 June 2005 at 11:57 am
Lisa Kiely call to Lindholm
- Lindholm tells Kiely that she’ll have to come up to Lindholm’s new place, she’s moved in with Wayne on the 12th floor penthouse.
- Lindholm says she’s moved some of her stuff out of Tambo Avenue and has pretty much moved most out.
- Lindholm says a lot of the contents of the house have been dumped and other stuff will be sent to a friend.
- Kiely says ‘You sound really happy’.
- Lindholm responds ‘Yeah, I’m really well, look it’s all. I’m just gonna move on …’
- Lindholm discusses the police investigation and whether the deceased is still alive.
1140
16 June 2005 at 2:12 pm
Vicky Lavender call to Lindholm
- Lindholm discusses selling the pinball machine from Tambo and whether Lavender will buy it.
- Lavender jokes that if the deceased comes back, she can give it back and then laughs.
- Lindholm responds ‘He won’t come back. It’s been too long. It’s fuckin’ way too long.’
- Lindholm tells Lavender that she’s given notice on Tambo.
- Lindholm says that she’s moved into Hawthorn.
- Lavender asks if Lindholm is in the penthouse and Lindholm responds ‘Ye-ah.’
- Lindholm tells Lavender that it’s the best view in Melbourne she’s ever seen.
- Lindholm refers to Amey as Batman.
485
16 June 2005 at 5:55 pm
Lindholm call to Wayne Amey
- [Matilda Burke] in background.
- References made to ‘Batman’.
- References made in the call to ‘that phone’.
- Amey refers to Ross Teazis — getting him out of her life and they discuss selling and getting rid of property from Tambo Avenue.
- Amey refers to giving Ross the couch — ‘he can take that back couch if he wants it. Go and get that recovered’. Lindholm says ‘that’s funny. Oh very funny.’ (laughs).
657
17 June 2005 at 6:53 pm
Lindholm call to Wayne Amey
- Lindholm refers to Ross Teazis and says ‘He thinks his dad is gonna come back.’
738
20 June 2005 at 1:50 pm
Wayne Amey call to Lindholm
- Lindholm refers to her other phone.
- Amey warns Lindholm to not answer that other phone if it’s a private number.
1343
21 June 2005 at 3:16 pm
Dorothy Burke call to Lindholm
- Lindholm says that Mad Mick is coming to Tambo with a trailer and will take the weights.
- Burke tells Lindholm not to give Ross Teazis anything.
- Burke says Ross is worse than his father.
- Burke warns Lindholm to be careful because the police will have cameras everywhere and Lindholm won’t know where they are.
1554
26 June 2005 at 9:43 am
Lindholm call to Vicky Lavender
- Lindholm asks Lavender whether she wants her to come over and go through the deceased’s clothing and see what Shane (Shane Scott) wants.
- Lindholm says ‘There’s some really nice leather jackets there and stuff. Some really nice jackets if you want.’
- Lindholm says ‘Because Shane’s almost as big as George’.
1978
6 July 2005 at 2:43 pm
Lindholm call to Chris Rominidis
- Rominidis tells Lindholm that he was sorry to hear about her boyfriend.
- Lindholm tells Rominidis ‘…actually the guy that went missing wasn’t my boyfriend, he was my ex-boyfriend… the press have put it as my boyfriend’.
- Lindholm says ‘My boyfriend actually runs a gym in Hawthorn. And, um, I live in his penthouse which is in Hawthorn …’
- Lindholm says that she gave up work and doesn’t strip anymore.
394
23 July 2005 at 11:40 am
Lindholm call to Wayne Amey
- Lindholm says she walked into Surrey Hills and there’s a spade on the floor in the loungeroom.
- Lindholm says ‘Ah, no, nothing really sprung to mind other than maybe burying someone or –’
- Amey then jokes that burying is very old fashioned.
- They then discuss the trip to Perth.[20]
799
8 August 2005 at 8:07 am
Wayne Amey call to Lindholm
- Amey tells Lindholm to turn off her phone as she doesn’t want a second phone ringing when she has visitors.
- Amey tells Lindholm to not let them see the phone and then says ‘It’s my phone anyway’.
942
13 August 2005 at 10:04 am
[Matilda Burke] call to Lindholm
- Lindholm says they’ve had Shane Brundell on the phone wanting to speak to Amey.
- Lindholm jokes that the fact that Amey is away with her is apparently a problem and laughs.
- Lindholm says to [Burke] ‘Don’t be surprised if they pay a visit to the house or anything.’
- [Burke] says, ‘I’m just gonna say that I don’t really know.’
- Lindholm says ‘he [Amey] knew by seeing me it would be a bit of a risk’.
- [Burke] says, ‘There’s a hell of a lot more people out there with more reason to want to hurt George than fuckin’ Batman ever would.’
968
15 August 2005 at 9:28 am
Lindholm call to [Matilda Burke]
- Lindholm says she hoped to see [Burke].
- [Burke] says she won’t speak to anyone until she sees Lindholm.
- [Burke] says ‘‘What’s-a-name’ [Amey] rang me from the phonebox. I just won’t speak to anybody until I speak to you.’
- Lindholm discusses search warrant at the gym.
- Lindholm says: ‘They had sort of a warrant for the gym and they’ve got on it for — wanted for murder. They reckon — well obviously they must’ve found the body or something, but see they told me nothing.’
1093
17 August 2005 at 12:47 pm
Wayne Amey call to Lindholm
- Amey tells Lindholm he is on a public phone.
- Lindholm tells Amey that Kara Decandia has had a few cards dropped off for her by police.
- Lindholm says she is going to go and see Kara.
- Lindholm says she is also going to see Vicky Lavender.
- Lindholm says ‘I have to go around and visit all my friends today I think’ and ‘I’ll ring that other person as well’.
- Amey responds ‘Yeah, that’d be pretty wise’.
- Lindholm says ‘I think there’s a few people I have to ring.’
[19]The applicant’s mother. No relation to Matilda Burke.
[20]For further detail see ground 2.
Analysis
The focus of the applicant’s written case was on the asserted unreliability of witnesses Burke, Ardley, Elliot, Plunkett and Decandia. Each witness attracted an unreliability warning pursuant to s 32 of the Jury Directions Act 2015, and each as we have recounted, gave evidence that was highly damaging to the applicant.
The applicant faces a difficult hurdle in persuading this Court that the unreliability of this evidence, considered individually or as a block, was of such a quality that the jury must have entertained a doubt as to the applicant’s guilt. The reliability of these witnesses was front and square before the jury. The jury was appropriately directed to exercise caution insofar as each of these witnesses was concerned. A large proportion of the evidence and of the final addresses was occupied with examining the reliability of these witnesses. And it must be assumed, at least as a default position, that the jury accepted as credible and reliable sufficient of the evidence of these witnesses to find guilt.[21] It also must be borne steadily in mind that there was a lot more to the Crown case than merely the evidence of these witnesses.
[21]In Pell v The Queen (2020) 268 CLR 123, 145 [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); [2020] HCA 12, the High Court said, in relation to a complainant in a trial involving sex offending that an appellate court conducting this sort of inquiry must start from the assumption that the jury regarded the complainant’s evidence as both credible and reliable.
Before commencing a short examination of each witness, we observe that while each of them was an ‘unreliable witness’, the jury was fully directed and warned of the inherent and specific issues that they should consider when evaluating the credibility and reliability of each of these witnesses. The judge, in a comprehensive charge, then summarised the evidence of each of these witnesses and the ways in which the defence had sought to challenge those witnesses. With respect, his Honour’s charge on this aspect was impeccable.
Matilda Burke
We have set out Burke’s evidence and some of its evolution over the course of time at [31] to [47] above. From May 2005 onwards, she was a critical exculpatory witness in support of the applicant’s account. She provided a plausible account of why the applicant left 13 Tambo Avenue at the relevant time. She stuck to that account at the committal, on her own admission perjuring herself by attesting to its accuracy. She initially stuck with it in her evidence-in-chief at the first trial which commenced in April 2018. It was only some time after her evidence was challenged by the prosecutor[22] that she retracted all earlier versions and provided her highly incriminating account. The applicant had asked her to find a pretext to leave Tambo Avenue, and that while they were absent the applicant received two phone calls from Amey. When they arrived back at 13 Tambo Avenue and found Mr Templeton missing, on this account the applicant said to Burke, ‘Wayne Amey had paid somebody to help him get rid of George’. Later the applicant cautioned Burke to ‘stick to the story’. Burke gave evidence about how it came to be that she decided to retract her previous evidence and ‘come clean’. We have set this out at [47] above. It was only upon hearing her deceased mother’s voice on a telephone intercept played in court, and after interacting with the applicant in a corridor of the court building that she had a change of heart.
[22]The prosecutor had been given leave to cross-examine Matilda Burke as an unfavourable witness pursuant to s 38 of the Evidence Act 2008.
The jury was required to evaluate Burke’s new account, the reasons that she gave for her about-face, the conduct of the police in speaking to her over a weekend break in her evidence, the fact that she was at risk of being re-sentenced for perjury if she changed from her belated inculpatory account and the fact that she was a self-confessed perjurer. In our view, there was nothing inherently implausible about her fresh inculpatory account. Further, we consider that the circumstances that led to her retracting the old account and substituting a new one were not unreasonable or far-fetched, and certainly, not so highly improbable as to defy belief. Essentially she claimed that her conscience overrode her loyalty to the applicant. It happens.
This Court said in Smith (a pseudonym) v The Queen:[23]
Questions of improbability are questions for juries, not for appeal judges. As we have said, they involve the making of judgments about human behaviour, which juries are peculiarly well placed to make. Jurors have the advantage not only of a far wider range of life experience than that of three judges but of being able to draw on each other’s experiences in the course of their deliberations. There may be, of course, cases where the improbability of the impugned conduct is so extreme as to compel the reasonable doubt that has somehow eluded the jury. But, as we said earlier, the appellate court should be very cautious before arriving at that conclusion.
As the High Court said in Doney v The Queen:
[T]he purpose and the genius of the jury system is that it allows for the ordinary experiences of ordinary people to be brought to bear in the determination of factual matters. It is fundamental to that purpose that the jury be allowed to determine, by inference from its collective experience of ordinary affairs, whether and, in the case of conflict, what evidence is truthful.[24]
[23][2022] VSCA 129, [34]–[35] (citation as in original).
[24](1990) 171 CLR 207, 214 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1990] HCA 51.
It was open to the jury to accept Burke’s fresh account as reliable and credible.
Aaron Ardley
Ardley was a former intimate friend of the applicant. In about 2012, as we have set out at [53] above, the applicant confessed to Ardley that she had killed Templeton, that she and another person dismembered the deceased and disposed of the remains in Port Phillip Bay. She also told Ardley that Templeton had gang raped her, locked her in a cupboard for days and was generally controlling and violent.
Further, it will be recalled that Ardley asserted the applicant had taken Templeton’s gold pendant as a trophy and it was stored in Amey’s safe. Ardley also said that she would joke and sing about someone being under the sea and swimming with the fishes.
The applicant submitted in her written case and orally to this Court that these admissions were inconsistent with the Crown hypothesis. Ardley was a criminal (ie, of bad character) and had substantial motives to lie. Further, he was a long term drug user, consuming ice on a daily basis prior to engaging with the applicant in 2012. He was using ice when he made his final statement to police, and had serious police matters pending (including kidnapping, armed robbery, false imprisonment and intentionally causing injury) at about the time of his second statement in April 2017.
As with the other four witnesses in this ‘unreliable witness’ category, this witness’ shortcomings were fully ventilated before the jury and there were comprehensive directions that identified the ‘significant matters or circumstances’ that may cause the evidence to be unreliable. Ardley’s evidence, in some respects, was at odds with the prosecution case (that the applicant was absent during the murder/abduction) and particularly with Burke’s evidence. This cannot be gainsaid, however it was open to the jury to select as much or as little of Ardley’s evidence as they chose. On any view, the jury was entitled to accept from Ardley’s evidence at least that the applicant knew that the deceased had been murdered, that a gold pendant or similar had been in some way souvenired as a trophy, that it was stored in Amey’s safe, that the deceased had been dumped in the sea, and that the applicant sang a song about that topic. It would have been open to the jury to accept this evidence which was supported by other evidence in the case as relevant to the guilt of the applicant, and reject the admission that she carried out the murder herself on the basis of unreliability by either the applicant (as the maker of the admission) or Ardley (as the witness recounting this admission).
Kara Decandia
Decandia, it will be recalled, lived in the bungalow at the rear of 13 Tambo Avenue for a period of six or seven months until August/September 2004. The applicant, according to Decandia, confided in her how unhappy she was with Templeton, who was jealous and controlling. The applicant spoke of killing Templeton as a means of ‘get(ting) away from him’ and spoke of a scheme to do so on New Years’ Eve by shooting him during the fireworks display. Decandia gave evidence that the applicant confided that once Templeton was dead she would be free to be with Amey.
On this appeal, the applicant challenged Decandia’s evidence. The applicant submitted that Decandia did not warn Templeton or the police about this proposal. She made several prior inconsistent statements as to a) whether or not Templeton was in gaol when she moved into Tambo Avenue; b) whether her relationship with Templeton was akin to brother/sister or something more distant than that; and c) whether she had knowledge of people with whom Templeton may have had problems.
It was open to the jury to accept Decandia’s evidence. As we have said, the jury was comprehensively directed about it, the reliability and credibility of Decandia was central to the case as this was highly damaging evidence, and it was fully tested and critically analysed by experienced senior counsel for the applicant.
Kyle Elliot
Elliot described the applicant confessing to him that she had drugged Templeton by putting sleeping pills in his pepper steak, and then beaten him to death with a fire poker while he was sitting on a couch. The applicant submitted that this supposed admission was contrary to the prosecution hypothesis, contrary to the evidence of Burke, contrary to the evidence of her son and made by a man who was of bad character, with a motive to lie, who had made a series of prior inconsistent statements and who was, by his own admission, a practised liar.
This evidence in many ways is similar to that of Ardley. Both witnesses had numerous shortcomings which could have impacted the jury in its assessment of their credibility and reliability. Both described the applicant as confessing to the physical act of murder, and as such their evidence is at odds with the prosecution case at trial. It was clearly open to the jury to reject this apparent confession to the physical act of murder as unreliably emanating from the applicant, or unreliably recounted by Elliot. Either way, it is capable of impacting the overall assessment of Elliot’s unreliability but it does not have to adversely affect other aspects of Elliot’s evidence. It would have been open to the jury, after giving due weight to the judge’s directions and the arguments put by both sides, to accept that the applicant had admitted to the witness that Templeton had been murdered on or near the couch in the lounge room and that the applicant had earlier drugged him by adulterating his pepper steak. The fact that pepper steak was cooked for Templeton that night was an uncontested fact on the trial. It would have been open to the jury to conclude that the applicant told Elliot this (for how else could he have known?) and that the context was in discussing her participation in that part of the scheme to murder Templeton. We shall review the forensic evidence in due course, however, it is clear to us that the jury could have concluded that blood spatter consistent with forcible trauma was found on both the couch and nearby surfaces. This is consistent with Elliot’s evidence that the applicant told him there was ‘blood and stuff everywhere’ and there was blood on the couch on which Templeton had fallen asleep.
Annabel Plunkett
Plunkett gave evidence that the applicant told her in custody that she (the applicant) had ‘slit his throat as he came’. This is at odds with the prosecution case and likely, in our view, to be dismissed by the jury as fanciful, whether emanating from the applicant or the witness. Certain other evidence is not so easily dismissed. The admission recounted by Plunkett that the applicant said she killed him because she couldn’t leave him (or similar) recurs in the evidence of other witnesses.[25] Exhibit 8, the note reading ‘[n]o matter how good or bad your life is, wake up each morning and be thankful you still have one’ penned on the same day the witness spoke to the police could obviously be used by the jury as evidence of incriminating conduct and is some evidence to support the proposition that the applicant made admissions at about that time to the witness. Otherwise, why the threat?
[25]Eg, Decandia gave evidence that: ‘[the applicant] believed that the only way to get away from George was to kill him’.
For the reasons that we have expressed above it was open to the jury to accept or reject the above evidence or particular parts of the evidence. There was nothing about this evidence that compels its complete rejection.
Further, as the respondent points out, there was a substantial body of other evidence that taken as a whole contributed to what was described as a ‘strong circumstantial case’. We agree with that assessment. In a non-exhaustive catalogue of the evidence, in addition to the impugned evidence from the five ‘unreliable witnesses’, there was evidence as follows:
•The applicant was most unhappy in her relationship with Templeton.[26]
[26]Fensom’s evidence summarised at [29] above. See also John Teazis’ evidence at [49] above.
•The applicant had a protracted secret relationship with Amey.[27]
[27]Fensom’s evidence at [29] above.
•Amey appeared obsessed with the applicant.[28]
[28]Ibid.
•Amey spoke to Fensom about killing Templeton. This was undisputed at trial.[29]
•The evidence of Deborah Teazis, that the applicant said ‘he’s not coming back’. This was said as early as 13 May 2005.[30]
•Evidence of confirmed blood spatter staining on and around the couch/windowsill area, located at Tambo Avenue on 16 May 2005. This was where Templeton was last seen.
•Evidence of DNA samples taken from areas of the couch and its surrounds that upon analysis strongly supported that Templeton was the source.
•Evidence that in five of the sites from which this DNA evidence was extracted, there was also evidence of blood.
•The Monet diary evidence, including the entry for 3 May 2005 (the alleged date of Templeton’s murder) — ‘Batman’ (Amey’s nickname) surrounded by love hearts.
•Evidence of telephone intercepts subsequent to Templeton’s disappearance which demonstrate the applicant’s indifference to his fate.
•Evidence that the applicant disposed of Templeton’s assets from as soon as two weeks after his disappearance.
•The telephone intercept evidence, in particular as summarised in calls 49, 141, 51, 78, 84, 1140, 488, 657, 394, 968 and 1093.
•Evidence that Diamandis did not call his mother Matilda Burke asking for lunch money on the relevant evening. This provides support for Burke’s ultimate account and disputes an answer given by the applicant in her record of interview of 6 May 2015.
[29]Ibid.
[30]See [48] above.
Further, it would have been open to the jury to find that the applicant made implied admissions of guilt by carrying out the following post-offence incriminating conduct:
•Lying to police in her second formal statement and in the record of interview when she said the couch in the lounge room was moved a few weeks after Templeton’s disappearance because it was broken and uncomfortable. This was contradicted by other witnesses, for example by Ross who said that the applicant told him she moved the couch with Burke’s help because of a red wine stain and the couch was moved three or four days after Templeton’s disappearance.
•Lying to police that her relationship with Templeton was going well, in her first statement made on 6 May 2005 and her record of interview on 16 August 2005. This was contradicted by multiple witnesses.[31]
•Lying to police about the state of her relationship with Amey. In her record of interview the applicant described having ‘a brief affair’ with Amey while Templeton was in prison around two years ago. She claimed the affair ended when Templeton was released and only resumed after Templeton’s disappearance. Again, this was contradicted by multiple witnesses.
•Lying to police about Burke’s son calling up around midnight on 2 May 2005 to ask Burke to come home with some lunch money. This was contradicted by both Diamandis and Burke, who said there was no such call.
•Telling Burke on 3 May 2005 at 13 Tambo Avenue to ‘stick to the story’.
•The note passed to Plunkett, in which the applicant wrote ‘no matter how good or bad your life is, wake up and be thankful you still have one’. Further, the applicant telling Plunkett to be careful and do the right thing.
[31]See, eg, the evidence of the Fensom at [29], Burke at [41], Elliot at [51], Ardley at [53], Decandia at [58].
In our view, on the basis of the ‘unreliable witness’ evidence and the other evidence in the case, it was open to the jury to infer:
(1)Templeton was dead;
(2)He was murdered by Amey and perhaps another man at the Tambo Avenue address, alternatively that he was disabled at that address and murdered elsewhere. More specifically Amey, or Amey and another man, carried out the act or acts that killed Templeton. At that time they intended to kill him and there was no lawful excuse for the act or acts that caused death;
(3)The applicant agreed with Amey and perhaps another person to carry out the murder;
(4)At the time of entering into the agreement the applicant intended that Templeton be killed; and
(5)The applicant participated in this joint criminal enterprise by one or more of the following:
• Prevailing upon Burke to provide a pretext to leave the address;
• clearing the location where the murder (or abduction) was to take place;
• communicating with Amey the timing for the attack;
•communicating with Amey with respect to Templeton’s state of inebriation;
•providing the keys to Templeton’s Holden Rodeo to the accomplices so that it could be moved from Tambo Avenue to support the appearance that Templeton had left of his own volition; and
•adulterating Templeton’s dinner with sleeping pills so as to assist in disabling him.
Ground 2 must be rejected.
Ground 1
This ground alleges that a substantial miscarriage of justice occurred as a consequence of evidence, ruled as inadmissible, being led by the prosecution; it was further contended that the introduction of that evidence into the case could not be cured by direction as to do so would serve only to highlight the impugned material.
As we have observed in considering ground 2, there were a substantial number of telephone intercepts played as part of the prosecution case. In total 88 telephone intercepts were introduced into evidence in a trial that occupied 33 sitting days before the jury retired. The impugned evidence related to a short passage contained in Call Number 394 recorded on 23 July 2005. We shall set out the full unedited conversation below — we have emphasised the portion relevant to the ground.
Amey: [to person in background]: Well (inaudible) anyway let me know if you’re keen. Thanks. See ya.
Lindholm: Hello.
Amey: Sorry.
Lindholm: Hello.
Amey: Yeah. Sorry, just talkin’ to someone over there.
Lindholm: Oh’hh.
Amey: Oh, I got the —
Lindhom: It looked funny, I walked into Surrey Hills and there’s the — the spade on the floor in the lounge room. (Laughs)
Amey: Oh, yeah.
Lindholm: Are you trying to give me a — a clue or a — a tip or a hint or —
Amey: Well —
Lindholm: A direct. What is it?
Amey: That’s, ah —
Lindholm: I don’t know how to take it.
Amey: That’s what I used the other day so —
Lindholm: (Laughs)
Amey: (Laughs) Yeah, ah, ah —
Lindholm: I don’t know, I didn’t know what — you know, I’m trying to work out —
Amey: Thank — thank you —
Lindholm: What it’s there for —
Amey: Um —
Lindholm: I — I’m —
Amey: Excuse me, mate, you might have seen that and had a guilty conscience, I don’t know. It’s, er — (laughs)
Lindholm: Ah, no, nothing really sprung to mind other than maybe burying someone or —
Amey: Yeah.
Lindholm: I don’t know.
Amey: You know. Well, ah —
Lindholm: Ah’ha, I don’t know what it was there for, I’ve —
Amey: Be —, burying is —
Lindholm: I don’t know.
Amey: Burying is very old fashioned.
Lindholm: Hey?
Amey: Bur —, burying is very old fashioned.
Lindholm: Oh, okay.
Amey: (Laughs)
Lindholm: Well I don’t know what it’s for then, I’m confused.
Amey: (Laughs)
Lindholm: (Laughs)
Amey: Yeah, anyway stand in a couple of (inaudible) and then you’ll remember.
In pre-trial argument the judge excluded the impugned passage under s 137 of the Evidence Act 2008. Senior counsel for the applicant had contended that Amey, an alleged co-offender, had asserted that the applicant had a guilty conscience. The prosecution did not seek to lead that part of the conversation as proof of the asserted fact, but merely to provide context to the relationship between Amey and the applicant. The judge excluded the conversation in a brief ex tempore ruling. Relevantly his Honour said that if it were only to be used for a context purpose, there was a ‘considerable risk’ that the jury ‘would use it for the asserted fact’ notwithstanding jury directions not to use it for that purpose. It seems that his Honour was unimpressed by the probative value of the impugned passage, and considered it was outweighed by the danger of unfair prejudice.
On day 22 of the trial, as a result of human error, the unedited recording of Call Number 394 was played to the jury. At the time the jury members had before each of them a redacted transcript of the call. Senior counsel for the applicant immediately made a discharge application. The judge refused that application for the following reasons:
I’m not going to discharge the jury. I’m not satisfied that the test of the high degree of necessity is met here. It’s extremely unfortunate that the right disc, which included the redactions that I ordered last week, wasn’t played to the jury. And I haven’t frankly heard a satisfactory explanation for why the mistake was made, because the correct disc should have been in the system in the player. But I think the best course is to just tell the jury when they come back in that the wrong disc was inserted, the correct disc is now ready for play and to get on with it, and I consider that dealing with it in that way in circumstances where the exchange seemed to be a fairly light-hearted exchange between Wayne Amey and Robyn Lindholm, which was only heard once by the jury, that they wouldn’t attach the significance that they might otherwise attach if they heard it repeatedly, and had also had the transcript of the words that should have been redacted in front of them. So I propose to deal with the matter in that way.
The judge then instructed the jury that, ‘before the break the wrong disc was put into the player. We’ve now sorted it out, we’ve got the right disc, and we’re going to listen now to call no. 394 on 23 July 2005.’
There was a short discussion before this instruction as to whether any directions ought be given to the jury concerning the impugned material, however defence senior counsel, correctly in our view, submitted that any direction to the jury to ignore that material would serve only to highlight it.
Before this Court, the applicant contended that any juror listening to the unedited recording while following the edited transcript would have immediately identified that the transcript had been edited and that the content not in the transcript was important — it was one co-offender (Amey) suggesting to the applicant about a spade seen on the floor of his lounge room that she ‘might have seen that and had a guilty conscience’ and in the context of admissible content including that ‘burying is very old fashioned’.
The respondent conceded that the playing of the incorrect disc was an irregularity in the applicant’s trial. Assuming this to be the case (and we consider this concession to be correctly made), the question becomes whether this Court is ‘satisfied that the irregularity did not make a difference to the outcome of the trial’. In Baini v The Queen,[32] the High Court discussed the notion of a substantial miscarriage of justice under s 276(1) of the CPA. The Court identified (non-exhaustively) three categories where such a miscarriage might arise. The second category was:
the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial.[33]
This Court has considered and applied this passage on many occasions.[34]
[32](2012) 246 CLR 469, 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); [2012] HCA 59.
[33]Ibid.
[34]See, eg, Boucher v The Queen [2022] VSCA 3, [81]; Awad v The Queen [2021] VSCA 285, [143]–[154]; Bufton v The Queen [2021] VSCA 228, [43]; Yannic (a pseudonym) v The Queen [2021] VSCA 150, [71].
We are positively satisfied that the irregularity identified and conceded by the respondent did not make a difference to the outcome of the trial. The excluded passage was only a snippet of evidence in a relatively light-hearted conversation. We think it likely that it would be forgotten quickly enough by the jury as adding nothing to the substantial body of admissible evidence that constituted the Crown case. In particular, we are of the view that the admissible balance of this call, by itself, conveys more potent evidence than the impugned sentence. For example:
Lindholm: Ah, no, nothing really sprung to mind other than maybe burying someone or —
Amey: Yeah.
Lindholm: I don’t know.
Amey: You know. Well, ah —
Lindholm: Ah’ha, I don’t know what it was there for, I’ve —
Amey: Be —, burying is —
Lindholm: I don’t know.
Amey: Burying is very old fashioned.
Lindholm: Hey?
Amey: Bur —, burying is very old fashioned.
Lindholm: Oh, okay.
Amey: (Laughs)
The prosecution case was replete with references to disposing of Templeton’s body in Port Phillip Bay. We consider that the impugned sentence added effectively nothing to the admissible portions of this conversation. Further, when the balance of the prosecution evidence, as we have set out under ground 2, is considered, particularly, in our view, the critical evidence of Burke, and the DNA and blood spatter evidence, the prosecution case was compelling.
We consider that the irregularity identified was inconsequential. As we are positively satisfied that the irregularity did not make a difference to the outcome of the trial, leave to appeal under ground 1 must be refused.
Conclusion
The application for leave to appeal must be refused.
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