The State of Western Australia v Mack [No 2] - [2012] WASC 445

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- MACK [No 2] [2012] WASC 445

CORAM: McKECHNIE J

HEARD: 6 - 9 NOVEMBER 2012

DELIVERED : 23 NOVEMBER 2012

FILE NO/S: INS 49 of 2011

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Prosecution
AND
BRENT DONALD MACK
Accused

Catchwords:

Criminal law - Trial by judge alone - Murder - Circumstantial evidence - Inferences to be drawn - Motive - Conduct - Opportunity - Whether inferences other than guilt available

Legislation:

Criminal Code (WA), s 279

Result:

Guilty of murder
Conviction recorded

Category: B

Representation:

Counsel:

Prosecution : Mr D Dempster
Accused: Mr S Vandongen SC & Mr S F Rafferty

Solicitors:

Prosecution : Director of Public Prosecutions (WA)
Accused: Seamus Rafferty

Case(s) referred to in judgment(s):

Axford v The Queen (Unreported; WASC, Library No 980200; 20 April 1998)
Barca v The Queen (1975) 133 CLR 82
Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291
Buckland v The Queen (Unreported, WASCA, Library No 970112, 21 March 1997)
De Gruchy v The Queen [2002] HCA 33; (2011) 211 CLR 85
Edmonds v Edmonds (1935) VLR 177
Edwards v The Queen (1993) 178 CLR 193
Greer v The Queen (Unreported, WASCA, Library No 960120, 6 March 1996)
Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416
Pfennig v The Queen (1994) 182 CLR 461
Plomp v The Queen (1963) 110 CLR 234
R v Ciantar (2006) 16 VR 26
R v Onufrejczyk [1955] 1 QB 388
R v Rice (1996) 2 VR 406
Roberts v The State of Western Australia [2007] WASCA 48; (2007) 34 WAR 1
State of Western Australia v Mack [2012] WASC 127
The King v Horry [1952] NZLR 111
Whitsed v The Queen [2005] WASCA 208

McKECHNIE J:

How this matter comes to court

After the death of her husband Donald on 9 August 2008, Mrs Pauline Mack continued to live in the family home at 144 Fairfield Street, Mount Hawthorn, with her son, Brent, who had returned home that year. She was a person with few friends although she was close to her adopted brother Harry Chew and his wife Nellie. Apart from Brent, no one who knew her said that they saw or had contact with her after Christmas 2008.
In August 2010, Harry and Nellie Chew reported Pauline's disappearance to police setting in train an investigation which led to the arrest and eventual trial of Brent for her murder.

The indictment

The accused, Brent Donald Mack, is charged on indictment that:
On a date unknown between the 18 December 2008 and 29 December 2008 at Mount Hawthorn, Brent Donald Mack, murdered Ah Bee (also known as Pauline) Mack. Criminal Code s 279
The possible verdicts available on this indictment are:
•Guilty of murder
•Guilty of manslaughter
•Not guilty

The trial

The trial took place between 6 and 9 November 2012 before a judge sitting without a jury: State of Western Australia v Mack [2012] WASC 127.
Western Australian law provides for alternative modes of trial for indictable offences: Criminal Procedure Act 2004 (WA). Neither mode is superior. They are just different. The inscrutability of a verdict by a jury is tempered by the need for unanimity. The verdict of a judge sitting alone is tempered by the need to give detailed reasons for a verdict.
Therefore, I took time to consider the evidence and prepare my reasons.
As a result of agreement between the prosecution and the defence, most of the prosecution case was tendered, without objection, in the form of wtiness statements read into evidence by Mr Dempster. Without objection, Mr Dempster also tendered 29 exhibits.
When evidence is adduced in this way, I am entitled to accept and rely on the contents of the witness statement as a truthful and accurate account of what is contained within the statement. Indeed, Mr Vandongen of Senior Counsel does not challenge the evidence and accepts the facts, though disputes the inferences the prosecution seek to draw from the primary facts.
The prosecution called two witnesses to give oral evidence, Mr Adrian Mack and Detective Senior Sergeant Scantlebury.
Adrian Mack appeared to be suffering an affliction while giving evidence and on one occasion had to be woken by the Orderly. His limited evidence concerning the state of the house at 144 Fairfield Street, especially the condition of the rear bathroom, was disjointed and vague.
However, his evidence was not significantly challenged. The major part of his evidence is incontrovertible. On two occasions he recorded conversations with the accused at the request of police. The recordings are of good quality. The first conversation was on 9 September 2010 and the second conversation on 15 February 2011.
In addition, Adrian received telephone calls from the accused. As the accused was in prison, the calls were recorded. Again, the quality of the recording is good. There were a number of calls but in essence there were two phone conversations - 19 October 2011 and 6 May 2012. Despite his apparent condition while giving evidence, I accept Adrian Mack as a witness of truth, even though vague.
Detective Sergeant Scantlebury was present when the accused was interviewed on four occasions, taking part in each. The interviews were electronically recorded. Each EROI was tendered into evidence. He also gave evidence as to tests of water flow in the rear bathroom at 144 Fairfield Street. This evidence is subject to an objection as to admissibility.
The evidence can broadly be divided into a number of categories:
•Evidence from relations of Mrs Mack and others to whom the accused lied.
•Evidence from Adrian Mack, the accused's brother about recorded discussions.
•Evidence of Mrs Mack's financial position.
•Other forensic evidence of fingerprints and handwriting.
•Evidence from four EROI.

Verdict

The accused is guilty of murder. I will enter a judgment of conviction.
These are my reasons for reaching that verdict.

The elements of the crime of murder

The crime of murder is relevantly defined in s 279(1)(a) and (b):
(1)If a person unlawfully kills another person and -
(a)the person intends to cause the death of the person killed or another person; or
(b)the person intends to cause a bodily injury of such a nature as to endanger, or be likely to endanger, the life of the person killed or another person; or
Any person who causes the death of another directly or indirectly by any means whatever is deemed to have killed that other person: Criminal Code s 270.
The killing of a human being is unlawful unless a killing is authorised or justified or excused by law: Criminal Code s 268.
Although the prosecution left open the possibility of a finding under s 279(1)(b), the prosecution case on motive and conduct was that the accused killed his mother to gain access to the money she inherited or controlled after the death of her husband, Donald, in August 2008.
The alternative, under s 279(1)(b) is not realistically open on the evidence although the alternative verdict of manslaughter is open if the prosecution case fails to establish beyond reasonable doubt whether an unlawful killing was intentional.

Manslaughter

The crime of manslaughter is committed if a person unlawfully kills another person under such circumstances as not to constitute murder: Criminal Code s 280.

Fundamental legal principles

There are three fundamental legal principles that apply to this case, as indeed they do to all criminal trials. They are:
1.The presumption of innocence.
2.The burden of proof.
3.The standard of proof.

1. The presumption of innocence

The first fundamental principle is a legal presumption that the accused is innocent of the charge of murder or the alternative manslaughter. That presumption continues to apply throughout the trial and my deliberation ceasing only if displaced by proof of guilt beyond reasonable doubt.

2. The burden of proof

The second fundamental principle flows from the first. At all times the onus is on the prosecution to prove its case. This onus never shifts to the accused for the simple reason that his innocence is presumed. If there is any evidence which may be exculpatory, the burden is on the prosecution to negative that evidence. In this case, the exculpatory material is chiefly contained in an EROI recorded on 5 July 2012 (Exhibit 22A and 22B) when the accused gives an account that his mother died by suicide. It is especially important to stress that he bears no onus of establishing what he says in that EROI is true. The prosecution must completely disprove his explanation and, additionally, positively prove its case of murder or manslaughter.

3. The standard of proof

In order to sustain a verdict of guilty and negate the presumption of innocence, the prosecution must prove its case beyond reasonable doubt. Any less standard of proof is insufficient to find the accused guilty of the count of murder or its alternative, manslaughter. If not satisfied beyond reasonable doubt that the only inference available is one of the accused's guilt, then the prosecution has failed to discharge the high standard of proof necessary to sustain a conviction. A conviction can only be recorded if there is no reasonable doubt about the accused's guilt.
I have applied these principles to the facts which I have found.

Principles relating to circumstantial evidence

This is a case in which the prosecution relies entirely on circumstantial evidence and the drawing of inferences.
There is no direct evidence that Mrs Pauline Mack is dead and no direct evidence that the accused unlawfully killed her. The State's case is entirely circumstantial.
To describe evidence as circumstantial makes no judgment about its reliability. It does not mean that it is less reliable than other evidence such as direct evidence. On the contrary, it may be as convincing as direct evidence. Circumstantial evidence involves a second step; that is, the drawing of an inference or inferences from proved facts. An inference is a logical deduction from facts which have been accepted and proven. It is not guesswork, speculation, surmise or an imaginative stab in the dark but a logical deduction.
Evaluation of evidence in a circumstantial case is then a two stage process. First, facts must be found. Only when facts have been established is the fact‑finder in a position to draw, if it is possible, a logical inference from those facts. If different inferences can be drawn from the same set of circumstances the inference is equivocal. A conclusion of proof beyond reasonable doubt cannot be established from circumstances which are equivocal. There cannot be satisfaction beyond reasonable doubt as to the accused's guilt so long as there are other reasonable hypotheses consistent with innocence.
Put another way, the circumstances and facts proved must not only be such as are consistent only with guilt but must be such as are inconsistent with any reasonable conclusion other than guilt.
Guilt must be the only rational inference which can be drawn from the circumstances beyond reasonable doubt before a verdict of guilty can be pronounced.

Absence of a body or a cause of death: circumstantial evidence

Circumstantial evidence is capable of proving a case even when there is no body and no cause of death.
The cases which follow analyse the principles to be applied but, of course, provide no guidance as to whether the facts in this case prove the accused's guilt.
In The King v Horry [1952] NZLR 111:
In this case, there is nothing in the shape of a confession, nor is there any sort of trace of a body. There does not appear to be any case in which, without any evidence of a body, or traces of a body, or violence used to a body, or of anything approximating to a confession, the factum of the murder has been held to have been sufficiently proved by circumstantial evidence. In the absence of any authority exactly in point, the approach must be to determine the governing principle and to apply it to the somewhat unusual facts of this case (121).
…
There are many cases where convictions for murder have been upheld in the absence of evidence of the body in an identifiable form of the person alleged to have been murdered; in such cases, it has been held that either the finding of traces of a body or evidence as to violence having been shown to the person whose body had disappeared (as in R v Hindmarsh ((1792) 2 Leach 569; 168 ER 387)) would suffice, or that a confession, even if subsequently denied or retracted, was sufficient evidence, together with such other evidence as was present, to lead to a moral conviction that murder had been committed. In this case, there is neither the body nor traces of the body, nor anything in the form of a confession, but, in our opinion, that does not exhaust the possibilities. There may be other facts so incriminating and so incapable of any reasonable explanation as to be incompatible with any hypothesis other than murder. It is in accord both with principle and with authority that the fact of death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt - that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
The circumstances pointing both to murder and to appellant as the perpetrator are so interwoven that, even though the inquiry falls into two successive stages - namely, (i) the question as to whether Eileen was murdered, and (ii) the question whether it was done by appellant - the whole of the evidence bears on both questions (122 - 123).
…
In this case, though there was nothing approximating to a confession, there were statements, both verbal and in writing, that Eileen had died; appellant asserted his belief in the fact of her death with such insistence that a jury was entitled to accept it as having happened, and, if that were true, all the other evidence points to her having met her death at appellant's hands. The appellant in arranging the marriage used deceit, falsehood, and concealment on a large scale (124).
In R v Onufrejczyk [1955] 1 QB 388, the Court of Appeal per Lord Goddard CJ approved Horry:
[T]he circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for (394).
Pfennig v The Queen (1994) 182 CLR 461 is a case well known to lawyers about the admissibility of propensity evidence, a matter not in issue in the present case. However, it was a case where a 10‑year‑old boy went missing and his body was never found. The majority held that the appellant was properly convicted. Propensity evidence is a special class of circumstantial evidence. The appellant was the last person seen talking to the boy and he was possessed of the means, a van, to effect an abduction at that time and place. The jury were also entitled to conclude that the purpose of the abduction was sexual gratification.
In Buckland v The Queen (Unreported, WASCA, Library No 970112, 21 March 1997) (Owen J):
[T]o the deteriorating relationship, the prior assault, the earlier threat to 'see [the deceased] dead' if she took the baby away, the disposal of the body, the attempts to deflect attention from the disappearance and the statement to the deceased's mother about giving part of a life for a life. Much of this evidence is circumstantial but to describe evidence as circumstantial does not mean that it is less reliable than other evidence. However, the process of reasoning necessary to sustain a finding of guilt includes the requirement to exclude every reasonable hypothesis which is consistent with the person's innocence. In my opinion it was open to the jury to conclude that the inference of an intent to kill was 'the only inference open to reasonable [people] upon a consideration of all the facts in evidence': Peacock v R (1911) 13 CLR 619 per O'Connor J at 661.
If, as I believe to be the case, it was open to the jury to be satisfied that the applicant caused the deceased's death and that he did so unlawfully, then in the circumstances of this case the jury would have been entitled to discard the possibility that it should acquit the applicant or return a verdict of guilty of manslaughter. The choice was then narrowed to wilful murder or murder. It was for the jury to decide whether it was satisfied beyond reasonable doubt that the intent with which the applicant acted was to kill or to cause grievous bodily harm. It is apparent from the trial Judge's directions and from a question asked during its deliberations that the jury was aware of these choices and of the bases on which they were to be made. The jury must have been satisfied of an intention to kill.
In Whitsed v The Queen [2005] WASCA 208 the circumstantial evidence enabled the jury to be satisfied that the accused was guilty of wilful murder. The circumstantial evidence included lies told by the accused as to the cause of death which was contradicted by forensic evidence [36].
In Macartney v The Queen [2006] WASCA 29; (2006) 31 WAR 416 per Roberts‑Smith JA (Wheeler JA agreeing) analysed the earlier case of Greer v The Queen (Unreported, WASCA, Library No 960120, 6 March 1996):
440.Pidgeon J (with whom Wallwork and Scott JJ agreed) held that even though the remains disclosed no evidence of violence or cause of death, it was still open to the jury to find the appellant caused the victim's death. That was clearly so.
441With respect to specific intent, Pidgeon J said (at 49):
Ground 4(1)(a) states that the Crown failed to establish the cause of death or any bodily injury to the deceased. If the arguments suggested by these grounds were taken further, then it could be argued, at law, that if the proven facts were that the accused person did an act to cause a person's death; successfully disposed of the body so no trace was found and elected to make no statement to the police or give evidence at the trial, then he could not be convicted of an offence other than manslaughter. This is not the law. As I see the law, it is open to conclude that if it were proved that a person did the act to cause the death followed by disposing of the body so it is not recovered and with nothing else being known, he can be convicted of murder [440] - [441].
In Barca v The Queen (1975) 133 CLR 82 there was a body and evidence which suggested that the father of the deceased had killed as an honour killing. The judge directed that there was no evidence that was consistent with the murder being committed by the father. The plurality Gibbs, Steven, Mason JJ:
If the jury think that the evidence as a whole is susceptible of a reasonable explanation other than that the accused committed the crime charged the accused is entitled to be acquitted (105).
At 104:
When the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused'. To enable a jury to be satisfied beyond reasonable doubt of guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen.
R v Rice (1996) 2 VR 406. The accused was convicted of manslaughter although charged with murder:
The accused was charged with the murder of a woman with whom he was having a sexual relationship. She was not seen alive following a weekend which they had arranged to spend together to patch up differences that had arisen between them. Almost four years later her body was found in a locked 44 gallon drum filled with lime in a shed on a farm owned by an acquaintance of the accused. The accused had left the drum and other belongings with the acquaintance before leaving Australia for the United States. In the period following the deceased's disappearance the accused told various lies regarding the deceased's movements and plans. There was evidence of other unusual behaviour by the accused in that period. An autopsy revealed no natural cause of death and some evidence of strangulation, although it was not conclusive.
...
The concealment of the body by the male prisoner, however atrocious, must not lead you to conclude that the crime of murder was committed by him, though concealment is in general a difficult thing to get over.
So began the address to the jury of counsel for the prisoners in R v Greenacre (1837) 8 Car and P 35; 173 ER 388. Greenacre had cut off the head and legs from the trunk of Hannah Brown and concealed the remains in several places (Wills, Circumstantial Evidence, 7th ed, (1937), at 148‑9). His defence was accidental death. He was convicted of murder and executed. The man who secretes a body and lies about it may be found, in most cases, to be concealing his own crime, and therefore to be the murderer. That is so because personal guilt, unless the circumstances point to some other connection, is the reasonable inference.
The words are those of Cardozo J in People v Galbo 218 NY 283; 112 NE 1041 (1916), the annotations to which in 2 ALR 1227-9 deal with a number of the earlier American and English cases in which an attempt to conceal or dispose of the body was considered as evidence connecting the accused with homicide. In Greenacre and in Galbo there were injuries to the body additional to those inflicted in dismembering it. Where, the body having decomposed or been destroyed or disappeared, the cause of death cannot be shown by means of an autopsy and there is no eyewitness and no admission from which the cause of death can be ascertained, judges have had to consider what inferences might be drawn on the whole of the evidence about the way in which death came about (411 - 412).

Brooking JA conducted an exhaustive examination of cases where cause of death was impossible to determine.
R v Ciantar (2006) 16 VR 26. In this case a court of five judges was convened:
In our view the argument cannot be sustained. For even allowing that a possible explanation of the applicant's post-offence conduct was that he was conscious that he had committed one or more of the lesser offences, as opposed to the offence charged, it does not follow that the post-offence conduct could not be left to the jury as something which was capable of supporting an inference that the applicant was conscious that he had committed 'the offence charged'.
We accept that there may be some circumstances in which post-offence conduct is equally consistent with two or more possible offences or is otherwise intractably neutral. Where that is so, it may not be open, even on the totality of the evidence, to draw an inference that the accused had a consciousness of guilt of some particular conduct at the time that he told lies or performed some act which the prosecution relies upon as constituting post-offence conduct. But where such lies or conduct are considered in the context of all of the evidence it is not to be assumed that it will usually be so. Indeed, in the scheme of things, it is not likely to be so in many cases. And, to the extent that Heyes implies the contrary, in our view it should not be followed.
...
These propositions do not accurately reflect the law in this country. Lies and post-offence conduct are a species of circumstantial evidence. An inference of guilt may be drawn from the concatenation of circumstances including the post-offence conduct. The process of reasoning from 'strands in a cable' of circumstantial evidence discussed in Shepherd v R was applied in Edwards v R. Whether a statement proved to be false is capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon 'the terms of the statement, the circumstances in which it is made, the nature of the offence charged and the other evidence in the case'
As with other forms of circumstantial evidence of guilt, a jury may accept evidence of lies and other post-offence conduct and act upon it without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is to say, without being satisfied that there is no other explanation of the lies and post-offence conduct which is reasonably open on the facts).
...
That accords with Edwards. A jury may have regard to lies and post‑offence conduct without being satisfied that there are not other potential explanations for them apart from guilt of the offence which is charged, even though it is customary to direct a jury, for 'prudential reasons', that they should not act on evidence of consciousness of guilt unless satisfied of it beyond reasonable doubt. As we have already said, lies and post‑offence conduct are circumstantial evidence which the jury may take into account together with all of the other evidence, giving to the lies and conduct such weight as the circumstances allow. As Shepherdson J put it in R v Melrose, in a passage which has since been approved by the South Australian Court of Criminal Appeal in R v Power and Power and by the New South Wales Court of Criminal Appeal in R v Ho:
Since Dickson the High Court has decided Chamberlain (No 2). I agree with my brother Connolly’s analysis of and comments on Chamberlain (No 2).
I would however say that in my opinion, when there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person's flight but that if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference [39], [40], [44], [45], [52].
I have also had regard to the re‑statement of general principles in Roberts v The State of Western Australia [2007] WASCA 48; (2007) 34 WAR 1.

Motive

The prosecution contends that the accused had a motive:
The prosecution case is that the accused killed his mother by some unknown means, some means as cannot possibly discovered, as matters stand. He did that though to obtain her money and her property and his motive was strong because he did obtain her money and property. He did that by falsifying her signature, by transferring money from her accounts into his own account. In particular, your Honour will hear from a financial investigator giving expert evidence which is not contested, that in the period from 29 December 2008 until 30 June 2010, more than $225,000 in cheques were drawn on Commonwealth Bank accounts of Ah Bee Mack and those funds were traced to St George Bank accounts held in the name of the accused. … I mentioned there were significant properties and, of course, the accused remained staying alone until his arrest at the Fairfield Street address. His intent, on the prosecution case, was not simply to obtain the money which he did, in fact, obtain but also to succeed to the various properties. The commercial properties, in particular, after the accused's father was no longer able to work, provided a substantial income (ts 145 ‑ 146).
Plomp v The Queen (1963) 110 CLR 234 is a case well‑known to criminal lawyers in relation to directions on circumstantial evidence. It was argued that Plomp's motives could not be taken into account until it was shown by evidence that the accused's physical actions were responsible for his wife's death. Dixon CJ held there was no such legal doctrine:
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think however that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not be weighed as part of the proof of what was done (242).
Kitto and Taylor JJ agreed with the Chief Justice as did Windeyer J, who also agreed with Menzies J who delivered separate reasons:
The cause of death, to the exclusion of suicide or accident, is unquestionably part of the corpus delicti, yet proof of this is often inseparably involved with proof that the person who is charged with homicide caused the death. In such a case it could not be maintained that proof of identity must wait upon proof of the corpus delicti. Furthermore, in such a case any evidence to show that an accused person caused the death would be at once evidence of the corpus delicti and an indication of who it was that committed the crime. Indeed, this is just such a case and any evidence tending to prove that the deceased was drowned by the applicant was evidence against him for all purposes of the case. Such evidence - as will appear in greater detail when I come to the third question - included that there were inducements for his killing his wife; that immediately before her death he spoke of her as dead and introduced another woman as her successor, so, it could be taken, manifesting a disposition to kill her; that immediately after her death he sought to take advantage of her death by attempting to marry the other woman; that he lied about his relationship with the other woman and sought to induce her to do the same; and that he gave various accounts of what happened when the deceased was drowned. It hardly needs to be stated that to prove motive for a crime and no more could never be sufficient evidence upon which to convict anyone and it is to this that it seems to me some of the authorities cited are really directed, but, in a case like this, proof of such matters as I have just indicated does bear upon the probability that the applicant killed the deceased. Such proof was therefore admissible and could be used as evidence both that Fay Irene Plomp was killed and that it was the applicant who killed her (248).
Further on his Honour said:
When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form such an intention. … The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally. … The statement that 'the existence of a motive may tend to show that the person in question did the act simpliciter' is in my opinion sound law because it is sound sense. Similarly, in R v Ball (1911) AC 47 Lord Atkinson said: surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to shew he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his 'malice aforethought,' inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not (249).
In De Gruchy v The Queen [2002] HCA 33; (2011) 211 CLR 85 the appellant was convicted of the murder of his mother, brother and sister. It was not in issue that each had been murdered but the case that they were murdered by the appellant was entirely circumstantial. At [28] the plurality quoted with approval from Lord Atkinson in R v Ball and from Menzies J in Plomp v The Queen.
The principle is that motive can be used as a part of the circumstances both as to the question whether the accused unlawfully killed the deceased and also if that is established, whether the accused intended to kill or do a life threatening injury so as to constitute the crime of murder.
Motive alone, however, is insufficient to establish the case.
I have applied these principles to the evaluation of the prosecution case.

Who was Mrs Pauline Mack?

Jiang Ah Bee was of Chinese Malaysian origin born about 1954. She always used the name Pauline. At the age of seven or eight she was unofficially adopted by Maria Tan in Malaysia. She regarded Ms Tan's natural son, Harry Chew, as her brother. She left home when she was 21 or 22 and moved out on her own. She responded to an advertisement in a Malaysian paper and communicated with Donald Ernest Mack (Don), moving to Australia on a ticket he paid for and marrying him on 25 August 1982.
There were two children of the marriage, Brent Donald (the accused) born 24 May 1985 and Adrian Ernest born 15 May 1987.
Don Mack was already living in the house at 144 Fairfield Street, Mount Hawthorn. That became their home. He had also acquired property in the form of three units at 369 Oxford Street, Mount Hawthorn which were managed by Mr Peter Beckton of Acton Real Estate.
Pauline had few friends, one of whom was Heather Paikos. In 2004 Heather's son, Matthew, died as a result of a car accident as a passenger in a car driven by Adrian Mack. The death was not Adrian's fault. After that Pauline and she became closer and it was then that Heather realised how horrible Pauline's life really was: 'Pauline had sweetness about her and you would never think she was going through all of this'. She spoke to Pauline around 1 August 2008. This was at a time that Don was close to death. Pauline did not really want to talk. She never gave Heather the impression that she was in any danger or in fear of her life, she just seemed so miserable and unhappy.
Pauline was very shy, reserved and uncomfortable in company. One to one she was better. She did have a sense of humour and could laugh at things.
Pauline always kept the house very clean and tidy.
Dr Somers practises at the Dunedin Street Medical Centre, Mount Hawthorn. Mrs Mack was her patient from 31 May 1983. Mrs Mack was first treated by Dr Somers on 5 September 1984 and last treated on 7 May 2008.
On reviewing Mrs Mack's medical notes I saw her on several occasions mainly for medication to control hypertension and other routine medical matters.
On no occasion did Mrs Mack present any history relating to suicide or suicidal ideations (ts 168).

Pauline Mack is dead

I am satisfied beyond reasonable doubt that Pauline Mack is dead. She has not accessed any bank accounts since the end of 2008. She has not made contact with her step‑sister, Nancy Tan, in circumstances where contact would have been expected. She did not respond to Nellie Chew's invitation to Christmas 2008 and has not been seen by them, or made contact with Harry and Nellie Chew since September 2008. She was close to her brother and would have made contact. She has not spoken or communicated with Mr Beckton. She has not visited her medical practitioner since 7 May 2008.
The accused says she is dead and he disposed of the body. I accept that part of his evidence as truthful.

Who is Brent Donald Mack?

The accused clearly has an interest in and skill with computers. He started a computer repair business and the evidence shows he is proficient in computer use.
No evidence was led that the accused suffers from any personality disorder or mental condition.
His behaviour is certainly odd. I observed him during the course of the trial and earlier when I ordered trial by judge alone. I ruled at that time that the accused could appear by video link which he did on the first and last days of trial. In the middle two days of the trial he appeared in person. This was because the prosecution played a number of DVDs and it is not possible for the court to both receive an image of the accused from the prison and display a DVD both ways.
During the first day on video link he spent the entire day with his head down making no eye contact. He answered his name in a low voice. At one stage he appeared to be writing on a sheet of paper. On the days when the accused was present, at the request of counsel, I permitted him to be supplied with a gardening magazine. During those days he maintained the same posture as he had while on video link, head down and staring at what appeared to be the same page of the gardening magazine. The same demeanour was observed throughout final addresses on the fourth day when the accused was once again on video link.
The accused's demeanour changes over the various records of interview. In the first record of interview on 26 August 2010, he maintains reasonable eye contact and reasonable responses. In the second interview of 2 September 2010, eye contact is generally, but not entirely, maintained. The accused is able to make a small joke about a police officer's tie. In the third interview of 10 September 2010, the accused's demeanour is more withdrawn.
Between the time of his arrest and the interview of 5 July 2012, the accused was recorded in conversations with his brother on four occasions. Two of these were when his brother wore a listening device and two were telephone conversations recorded by the prison. All four conversations of course do not display any facial expression. The conversations however flow normally and indicate that the accused has a very clear understanding of his situation and the issues.
The interviews of 5 July 2012 were conducted in the kitchen of 144 Fairfield Street; outside in a shed; inside in the rear bathroom; and finally at Lake Gwelup. In each of these locations the accused displays no eye contact and keeps his head well down, looking at the ground. His answers to questions however are responsive. On occasions during the shed segment, he looks up and looks around. This is also observable at Lake Gwelup when he is looking for particular places or trees or markers. He tends not to make direct eye contact with the interviewer, in fact generally standing with his back to the interviewer.
Detective Sergeant Scantlebury was questioned about the accused (ts 242). He described finding in 144 Fairfield Street multiple containers of personal hygiene products arranged in very neat order which appeared to be quite excessive and well in excess of what a person would use in a year.
It became apparent to Detective Sergeant Scantlebury that the accused was a person with some very strict routines in his life. He would get up every morning at exactly the same time and the things he did from that time on every day would be exactly the same at the same time within a minute. He would read the back of the newspaper then have dinner then read the front of the newspaper. He went to bed at the same time when Sporting Talk had finished and Mr Mabury was coming on the radio. He was very regimented with timings. He was a person who during the interview on 5 July 2012 insisted on things being done in a chronological order. This is clear on the EROIs both at the house at 144 Fairfield Street and at Lake Gwelup. Detective Sergeant Scantlebury agreed that on occasions the accused would indicate that he would need time to think about what was being put to him. He said at page 243:
It would take him time. You could ask a simple question and unless he could go back and do it in his chronological order, it would take him time to be able to - to come to terms with - with even a very simple question and then give the answer. If he did it chronologically and followed his - his system then he could answer it very - a lot easier.
I have taken this behaviour into account in assessing the accused's credibility, especially in relation to the final EROI of 5 July 2012 when, for the first time, the accused advances an exculpatory suicide explanation.
Mr Vandongen argues that the accused's behaviour allows for the possibility that the accused has needed time to process the changes in his life and to work through the reasons for keeping silent about his mother's suicide. The argument is expansively put from ts 290 and I will return to it in more detail.

A chronology of significant events

I set out a full chronology and then return to years of significance.

YEARS	ACTUAL DATE	DESCRIPTION
1954	Circa	Ah Bee (Pauline) Mack born
1961	Circa	Pauline adopted by Maria Tan
1982	31 May	Pauline becomes patient at Dunedin Street Medical Clinic
25 August	Pauline marries Donald Ernest Mack
1984	5 September	Pauline first seen by Dr Somers
24 May	Accused, Brent Donald Mack, born
1987	15 May	Adrian Ernest born
2007	5 February	Maria Tan dies, Pauline attends funeral

2008	January	Brent moved back to 144 Fairfield Street
15 March	Lease agreement 369 Oxford Street executed by Pauline
7 May	Last treated at Dunedin Street Medical Centre
9 August	Donald Ernest Mack dies
20 August	Donald's funeral
5 September	Pauline helps make satay sticks for Harry Chew's birthday
7 September	Harry's birthday: Pauline and Brent attend
28 September	Nancy Tan visits - lunch at Chew's: Pauline attends
10 October	Long phone conversation with Nancy
Christmas	Nellie sends card and invitation for Christmas - no reply
29 December	Money transferred - Pauline to Brent First of 40 cheques and other payments that continued for 18 months
2009	10 January	Change of ownership of Commodore 8DD 908
13 January	Traffic crash with Rudzinski
10 May	Lease executed for 369 Oxford Street
27 September	Lease executed for 369 Oxford Street
2010	5 July	Nellie writes to Pauline about Harry
25 July	Nellie and Harry visit 144 Fairfield Street and speak to Brent

1 August	Brent phones Nellie
6 August	Nellie and Harry receive card
7 August	Nellie and Harry contact police
7 August	Bear and Ball attend 144 Fairfield Street and speak to Brent
8 August	Bear phones Brent
26 August	Brent arrested
26 August	First EROI
2 September	Second EROI
9 September	Conversation Adrian and Brent
10 September	Third EROI
26 September	Minett finds cheque book
2011	15 February	Conversation Adrian and Brent
19 October	Phone call Adrian and Brent
2012	6 May	Phone call Adrian and Brent
5 July	Fourth EROI

The events of 2008

In January 2008 the accused, Brent, moved back to 144 Fairfield Street. Don became more and more sick and was in and out of hospital. Pauline was told he needed to go to a home but she wanted him to stay at home and she would be his carer. She was not keen for him to go as she would lose her house and she would rather look after him herself.
On 9 August 2008, Don Mack died and the funeral was held on 20 August 2008. The funeral was attended by Nellie Chew and her daughter, Constance, the accused, Adrian and Pauline. Nellie is the widow of Harry Chew who died before trial.
On 5 September 2008, Pauline went to the Chew's house to help make up satay sticks for Harry's birthday party which was held on 7 September 2008. The accused, Brent, came to the party and kept to himself, spending most of the time in the house making cups of coffee.
On 28 September 2008, Nancy Tan, Pauline's adopted sister, and Harry Chew's sister visited from Adelaide and had lunch at the Chew house with Pauline.
At this time Pauline was well. She was always well groomed and made up and had never been ill to Nellie Chew's knowledge. At lunch Pauline said once her husband's estate had gone through she would have some money. She wanted to buy a more fuel efficient car. Nancy planned to go to China for a holiday and said to Pauline she should come. Pauline said it was a good idea.
On 10 October 2008, Nancy and Pauline had a long telephone conversation. Pauline was in a happy and positive frame of mind. Pauline told Nancy she wanted to get a job as a carer and Nancy encouraged her to check up on what qualifications and training she would need to be able to achieve this. They also discussed her money situation and Pauline told Nancy that money was not a problem. They discussed the possibility of doing some travelling together. They agreed to keep in more regular contact but that was the last that Nancy heard of Pauline.
Nellie Chew sent a Christmas card to Pauline as usual and an invitation to come to Christmas lunch but received no reply.
By Christmas 2008 Pauline was dead.

Events of 2009

The events of 2009 and 2010 which I am about to describe are set against the background where, for reasons I will explain, the accused had killed his mother and plundered her finances for his own purposes commencing with a cheque payable to B D Mack for $3,250 dated Christmas Day 2008.
Mr Rudzinski was driving a truck on 13 January 2009 at about 3.35 pm towards Fremantle on Leach Highway approaching the Kwinana Freeway overpass. A faded grey/blue Holden Commodore was in front of him in the right hand lane when it suddenly veered left trying to reach the Freeway North onramp. It was unable to do so. It then veered right back across the lanes, and ended up in front of the truck. At the next break in the median strip (at Amur Place, Bateman), the driver of the Commodore suddenly stopped to do a 'U turn' to travel back along Leach Highway when Mr Rudzinski, unable to avoid it, ran into the Commodore which went under the truck. The car had extensive rear end damage. The rear was creased on the outside. The driver gave his name as 'Mack'. Mr Rudzinski never noted the registration number and the driver drove the car away. This otherwise inconsequential event assumes significance when the accused is later interviewed and in statements he made to Adrian.
On 10 January 2009, the accused forged his mother's signature for a change of ownership of the Commodore registration number 8DD 908. He was involved in the traffic accident with Mr Rudzinski on 13 January, some three days later. The accused later lied to police about this transfer, saying that Pauline had made him transfer the car following the accident.
On 10 May and again on 27 September 2009, Mr Beckton mailed a lease renewal to 144 Fairfield Street. The accused forged Pauline's signature on each lease and returned them. Mr Beckton tried to contact Pauline by phone and having no success, went around to the house and spoke to the accused who told him she was overseas and that she had returned home to where her family comes from. The accused did not know when she was returning to Australia.
During 2009, the Chews were preoccupied with Harry's cancer, which he contracted that year, and other matters and did not have the time to visit Pauline.

2010: Enquiries are made

By mid 2010 Harry's condition had stabilised and Nellie Chew began to think of Pauline. On 5 July 2010, Nellie Chew wrote to Pauline about Harry and his medical issues. She received no reply and so on Sunday, 25 July 2010, she and Harry visited 144 Fairfield Street and spoke to the accused.
Nellie Chew noticed the house and garden were messy, in contrast to the way Pauline kept a very neat house and garden. There was a padlocked timber framed gate and a German Shepherd dog in the front yard. She made enquiry of neighbours and when she returned to the front of 144 Fairfield Street Brent was talking to Harry:
Brent told us mum doesn't want to see us. She has gone to live somewhere else. Things had changed since his father died and she doesn't want to see anyone.
I asked, 'Who is she living with?' Brent said, 'Someone she met in 2005. Mum doesn't want anyone to know'. I told him we have to hear from her. It wasn't enough, what he said, we had to hear from her but she didn't want to see us. And if that was the case that was okay but we had to hear it from her.
He said he would talk to her. We asked him how she could be living on her own with no one and no income. Brent said it wasn't true that she had no income. I asked him about his dad's relatives and about his brother, Adrian. Brent said his dad's relatives were only interested in ripping us off and that he hadn't seen Adrian for quite some time.
We told Brent that we had to see or hear from Pauline and then it would be fine. He said he would go and see his mum and try and get her to phone. He said, 'I'll talk to her but I can't promise' (ts 152)
On 6 August 2010 the Chews received a greeting card in the mail.

A fabricated greeting card

The greeting card (Exhibit 2) is cogent evidence as to the length that the accused went to pretend that Pauline was still alive and well.
The timing is significant. On 25 July 2010, Harry and Nellie went to 144 Fairfield Street to see Pauline.
On 1 August 2010 the accused rang Nellie Chew at 9.30:
He told me that he saw his mum and that she was angry that we were trying to get in touch with her. She doesn't want to see us. He told me his mum was having emotional problems.
When he said that I said, 'She may need help'. I told him that if we didn't get a satisfactory answer about it all we may need help from the police. He said he would try and he would ring me back. He rang back at 10.55 and said he had told her that she must call us next week. He gave me his mobile number; she never called (ts 153).
Less than a week later, the card arrived.
Nellie said that the handwriting was wrong. Pauline normally starts by saying, 'Dear brother, ah soh (meaning sister‑in‑law in Chinese) and my children's name. She always signed using her name Pauline saying, With love Pauline, Don, Adrian and Brent'. This card was signed, 'Best wishes Ah Bee'. Pauline had never used the name Ah Bee in the family. Obviously, though she used the name Ah Bee when she signed official documents such as leases and cheques.
The arrival of the card had the opposite effect to that no doubt intended by the accused. Far from allaying their suspicions, Mr and Mrs Chew took the card and their concerns straight to the police.
The card was undoubtedly sent by the accused: it has his fingerprint on it. It is the effort and cunning to which he went in constructing the card that is of importance.
The outer portion of the card purports to be a John Sands card with a heading 'Good Luck to You'. The inner part of the card consists of a piece of paper glued to the inner surface of the harder card material. The printed words are 'Wishing you every success - you deserve it' accompanied by five printed clover leafs. The writing of the card is as follows:
August 2
I have made new friendships while Brent is looking after my home.
I also do not want any contact whatsoever!! Sorry to trouble you with these problems, but I felt that you should know.
Don't be angry with me.
Best wishes
Ah Bee
The card was examined by a forensic handwriting expert, Mr McGinn, who compared the handwriting to samples which I am satisfied represent the true specimens of the handwriting of Pauline Mack.
Mr McGinn concludes in his report:
3.The right hand inside page displays the printed text 'Wishing you every success you deserve it' and 5 leaf patterns that have been produced using a commercial lithographic print process.
4.On the inside left page, on the lower left corner is a printed text DA47359 that has been produced using a commercial lithographic print process.
5.The inside left hand page displays printed text commencing: 'August 2nd I have made new friendships ...' that has been produced using a four colour toner process. (The term toner process describes commonly available technology also referred to as laser printers, photocopies or multi-function devices)
Mr McGinn identifies from original specimen handwritten entries attributed to Mrs Mack words which have been reproduced in the writing in the card:
3.It is my opinion that the body of non‑original hand written entries on the inside front cover of [Exhibit 2] is a composite, reproduced in part from original handwritten words and phrases.
There is an anti‑counterfeiting measure which consists of a repeated pattern of small yellow dots in the background of the inner piece of paper which was identical to that made by a Hewlett Packard printer, one of which was seized from the accused's computer shop.
In other words, the accused went to the trouble to comb through letters and other material written by Pauline and construct the short note entirely from facsimiles of real words. He used a facsimile of a signature from an official document.

Initial police enquiry - 7 August 2010

Constable Bear and Senior Constable Ball went to 144 Fairfield Street on Saturday, 7 August 2010 at 8.14 am. Their purpose was to ascertain the welfare of Pauline Mack. A wooden gate was shut and a large German Shepherd was running around the front yard. Also in the front yard were numerous car parts. Because of the dog, Constable Bear did not enter the premises but phoned Brent Mack on his mobile and arranged to meet him around the back:
I said, 'Are we able to speak to your mother? Is she home?'
He said, 'No, mum moved out the Sunday before Christmas in 2008'.
I said, 'Are you able to tell us where your mother is at the moment'.
He said, 'No, I cannot'.
I said, 'Are we able to call you mother so we can speak to her'.
He said, 'No, I don't have the phone number for her'.
Senior Constable Ball said, 'How do we contact her?'
he said, 'I can't say'
Senior Constable Ball said, 'All we need to do is make sure she is ok and then we can close the job off. We won't disclose her location to anyone'.
He said, 'I can't do that I made a promise'.
I said, 'Are you able to tell us whether you spoke to her last night, last week, last month?'
He said, 'Sorry I cannot'.
I said, 'All we need to do is make sure she's ok and that's it'.
He said, 'I was a missing person once and the Police never sighted me, they just came to the house, said I wasn't there and that was it'.
I said, 'Well that's not what we will be doing'.
The accused seemed emotional talking to Police about the matter.
At one stage it appeared as though the accused was tearing up whilst talking to me.
I said, 'What about if we give you our work phone number and you can pass that onto your mother?'
The accused picked up and handed me what I believed was his mobile phone.
He said, 'Put the number in there and I will try'.
I keyed in our work mobile phone number and saved it under 'We' as the accused phone was hard to operate.
Whilst attempting to input our number I noted a contact in the phone under the heading 'mum'.
I noted the number for future reference should it be required.
I advised him that the number was located under 'we' and if he could pass that onto his mother (ts 166).

The prosecution case overview

I have set out facts which I find to be proved and which are in any event uncontested.
The prosecution case is based on the following circumstances:
•the accused's motive;
•his conduct after Christmas 2008;
•his lies evidencing a consciousness of guilt
•the implausibility of his account that his mother killed herself;
•the admission that he disposed of her body and the circumstances of its disposal.
In assessing the evidence, I also have had regard to the accused's opportunity to commit the crime.

Opportunity

Pauline Mack had few friends or visitors, certainly no one with whom she was in regular contact. Adrian, her son, was estranged from her. She was very isolated. There is no evidence she was in poor health. Nellie Chew had never known her to be ill. The accused lived at 144 Fairfield Street with her. They were the only occupants of the house. The accused had access to a motor vehicle to dispose of the body. There were means at hand by which the deceased could be killed.
Pauline Mack did not respond to the Chew's invitation to Christmas but her absence did not excite enquiry.
I am satisfied the accused had the opportunity to kill his mother.

Conduct

Conduct before December 2008

There is no evidence whatever as to any ill will between Pauline and the accused. The limited evidence as to observations at Donald's funeral and Harry Chew's birthday discloses nothing out of the ordinary and certainly nothing adverse to the accused.

Conduct after Christmas 2008

The conduct after Christmas both suggests a motive for a killing and is consistent with a killing to gain access to large amounts of money.
Donald Mack owned property at 369 Oxford Street, Mount Hawthorn, a set of three commercial units currently leased to three separate tenants. The property generates approximately $53,000 per annum in rental income. The rent was deposited into Commonwealth Bank account in the name of D E and A B Mack. Periodically leases came up for renewal. On 15 March 2008, Pauline Mack executed a renewal of contract for one of the units. Following Don's death, the money continued to be deposited in the joint account. Pauline Mack drew on the account until December 2008. The accused looted the account thereafter.
This is clearly demonstrated in Exhibits 10 and 11, the financial investigator's reports prepared by Mr Neil Barlow.
His overall opinion:
6.1Based upon my analysis, I have concluded that the transactions through bank accounts held in the name of Ah Bee Mack and other financial dealings indicate that:
6.1.1The main sources of income available to Ah Bee Mack are rental income of approximately $3,000 per month and Government pensions of approximately $1,375 per month. The general level of income from these sources of income has remained reasonably stable throughout the Relevant Period.
6.1.2Ah Bee Mack also earned interest income of almost $750 per month in 2008, but the level of income from this source has reduced as funds held in the name of Ah Bee Mack have been withdrawn.
6.1.3Apart from payment of funeral expenses, the death of Donald Ernest Mack does not appear to have resulted in any immediate or significant change in the expenditure patterns of Ah Bee Mack.
6.1.4Other than utility payments for the Mount Hawthorn home, there does not appear to be any payments related to meeting the normal day to day living expenses of Ah Bee Mack through her known bank accounts since 19 December 2008.
The analysis deals with known sources of income. The total deposits, excluding transfers, into the bank accounts of Ah Bee Mack during the relevant period average just over $5,000 per month which is broadly consistent with her known sources of income. Significantly unknown deposits to bank accounts maintained by Ah Bee Mack shows deposits in January, April, May and September 2008 with none thereafter:
7.26Between 1 January 2008 and 19 December 2008, 21 cheques and withdrawals ranging in value from $600 to $2,000 were cashed at the Mount Hawthorn branch of the Commonwealth Bank.
7.27The cheques were typically cashed on a Friday or Monday and the total values of these withdrawals was $22,800.
7.28In my experience, this sudden and seemingly permanent change in withdrawal pattern since 19 December 2008 is unusual. Core spending patterns tend to be stable, and whilst some changes over time can be expected, in my opinion such a dramatic change in expenditure suggests a significant lifestyle change.
7.29Between January 2008 and December 2008, a range of other cheques and payments were made from the Commonwealth Bank accounts, including regular insurance premiums paid to HBF, an annual insurance premium to Nexus Risk Services, council rates, utility payments, payment of taxes and payment of funeral expenses for Donald Ernest Mack.
7.30Whilst there continue to be other cheques and payments made from the Commonwealth Bank accounts since January 2009, the nature of these cheques and payments have changed. For example, the regular insurance premiums to HBF ceased, and regular payments to the Magistrates Court, e‑Bay and to internet service provider Internode commenced.
7.31Further, in December 2009, two cheques totalling $15,290 are drawn payable to 'Help in a Hurry Home Maintenance'.
7.32In my opinion, there has been a significant change in the nature of cheque and other payments since late December 2008.
The accused had a number of accounts with the Commonwealth Bank, St George's Bank and Westpac Bank. The two Westpac accounts were opened on 30 July 2008 and closed on 12 February 2009 but recorded no activity. The four Commonwealth accounts were closed in October, November and December 2008, the last being closed on 30 December 2008. There were a number of dishonoured transactions and bank fees but all accounts were overdrawn and written off by the bank. The only 'live' accounts were those with the St George Bank. An examination of the chart (Figure 2) shows that prior to December 2008 there were minimal deposits which were matched by withdrawals. In December 2008 the deposits were matched by a deposit from Pauline Mack's account. Thereafter, except for November 2009, April 2010 and May 2010, the only moneys available to the accused were from Pauline Mack's account. Those amounts are significant.
Between 29 December 2008 and 29 June 2010, 40 cheques ranging in value from $120 to $33,000 with a total value of $227,351 were drawn from the Commonwealth Bank account of Ah Bee Mack payable to Brent Mack. The cheques all match deposits made to the St George's Bank accounts operated by Brent Donald Mack. The payments between January and October 2009 worth on average just over $6,000 per month - slightly more than the income received over the same period ($5,200) per month:
7.36The value of these payments increased significantly in November 2009 following the transfer of two Commonwealth Bank term deposits into the Commonwealth Bank cheque account.

The accused began withdrawing money in December 2008 with the Christmas Day cheque. In January and February 2009 there were two deposits of $10,000 and then regular deposits of lesser but significant sums until November 2009 when there was a deposit of $40,000.
In November 2009, two Commonwealth Bank term deposits totalling just over $163,000 held by Ah Bee Mack were transferred into the Commonwealth Bank Pensioner Security account. This transfer was arranged by the accused. The funds were then paid by cheque into the accused's St George's account between November 2009 and June 2010.
Many of the transactions on the accused's account were Eftpos and Visa transactions totalling $143,230.95 in net Eftpos and Visa purchases. Between October 2008 and October 2009, the majority were personal type expenses including motor vehicle related expenditure but the activity increased significantly from November 2009. It appears that the increase in Eftpos and Visa purchases is attributed to computer and other business expenses.
In addition a total of $47,480.16 in internet withdrawals was made from the accused's account, commencing in June 2009. Paypal accounts to a total of $25,124.40 were made from the account. As the report states:
6.37From 29 December 2008 until 26 October 2009, Brent Donald Mack deposited cheques drawn from his mother's Commonwealth Bank account worth on average just over $6,000.00 per month into his St George Bank accounts. These deposits appear to have been the main source of funds available to Brent Donald Mack during this period.
6.38Between 3 November 2009 and 29 June 2010, Brent Donald Mack made seven deposits into his St George Bank accounts totalling $166,000.00. The source of these funds was traced back to two Commonwealth Bank term deposits held by his mother. The funds appear to have been spent on personal living expenses and on start up costs to establish business premises in Maylands.
6.39The last cash withdrawal from the St George Bank accounts of Brent Donald Mack during the relevant period was on 21 February 2010.

Forensic Handwriting Examination

Mr John Alexander McGinn is a document examiner. I accept that he is an expert in the forensic examination of documents and in handwriting.
As is usual practice, he conducted a comparison of the handwriting of numerous documents including questioned documents. I am satisfied that the matter of items 11 to 20 enumerated in Mr McGinn's report dated 9 January 2011 were written by Mrs Pauline Mack as were items number 1 to 5.
In respect of a series of cheques apparently signed 'A B Mack':
9.There are two propositions as to why the questioned signature is completed in a manner that differs from the specimen signatures:
a.The writer of the specimen has an alternative signature formation, styled and formatted as 'A.B.Mack' that is fundamentally different, and not represented, in the specimen material obtained.
b.The questioned signature has been completed by another writer either as an attempted freehand simulation of the specimen signature, or as a spurious representation of a signature with little regard for the characteristics and appearance of the specimen signature form
Mr McGinn completed a supplementary report on 4 May 2011 in respect of questioned documents being three loose sheets of paper forming a Contract to Lease retail premises referred to by Mr Beckton, together with a Disclosure Statement, in relation to 369 ‑ 371 Oxford Street, Mount Hawthorn. In his opinion, the sheets comprising the contract to lease dated 15 March 2008 were written by the writer of the specimen A Mack signatures. That is proven to be Mrs Mack's.
Mr McGinn compared the other contract to lease document and also noted item 6 (S36):
A yellow coloured 'post‑it' note bearing original handwritten entries in a blue colour ink commencing: '17/10/08 Dear Peter Please insert ...' and an 'A.Mack' formation purportedly completed by Ahbee Mack.
In his opinion there is qualified support for the proposition:
It is my opinion that there is qualified support for the proposition that the 'A.Mack' formation on Q12.6 is a generation of the original 'A.Mack' formation on S36. There is a degree of qualification associated with this opinion due to the diminished quality and fine detail of the toner signature on Q12.6. The existence of another original 'A.Mack' formation displaying similar characteristics, appearance and proportion is not reasonable.
6.The signature formation on Q12.8 displays some characteristics associated with the Ahbee Mack specimen signatures.
7.The diminished quality of the formation does not allow for an opinion to be formed as to whether or not it is a generation of a genuine Ahbee Mack signature formation.
In relation to Item 3, the contract to lease dated 27 September 2009:
10.There are two propositions as to why the questioned signature is completed in a manner that differs from the specimen signatures:
a.The writer of the specimen has an alterative signature formation, styled and formatted as 'A.B.Mack' that is fundamentally different, and not represented, in the specimen material obtained.
b.The questioned signature has been completed by another writer either as an attempted freehand simulation of the specimen signature, or as a spurious representation of a signature with little regard for the characteristics and appearance of the specimen signature form.
11.In considering the propositions, the specimen signature displays consistent and repeated habits within a range of variation throughout the examined material, without exhibiting any alternative and grossly different characteristics. There are no factors to support that the writer of the specimen material is capable of constructing an alternative and fundamentally different 'A.B.Mack' styled signature.
12.Whilst it is not possible to eliminate the proposition of the specimen writer being capable of completing the questioned signature, due to the consistent and repeated creation of the questioned signatures in a fundamentally different manner to the specimen formation, it is my opinion that there is qualified support that the writer of the specimen signatures has not completed the questioned signatures.
Mr McGinn reached similar conclusions in respect of the vehicle change of ownership dated 10 June 2009 (Exhibit 8). This was also forged by the accused.

Pauline Mack's cheque book

In the EROI (Exhibit 19A) on 26 August 2010 the accused was asked about a cheque. He denied ever writing a cheque from the deceased's account (EROI brief 399). He was asked (EROI brief 406):
Q.[A]re any of your mum's cheque books lying around?
A.There might be some very old ones from ages ago like 2007.
Q.Where are they?
A.Well they - if they are still in the same spot, my dad used to keep them, they would be in the lounge room.
The accused denied writing on the cheque saying emphatically: 'That's not my writing'.
In Exhibit 19B (brief 450):
Q.[D]id your mum leave any of her cheque books behind? When we searched like your work and all that are we gonna find any of them?
A.No.
This statement is a lie. Mr Minett's evidence was that on 26 September 2010 he was assisting Adrian to clean out the accused's computer shop at 315 Guildford Road, Maylands:
5.Whilst helping him, I located a Commonwealth Bank cheque book on the floor of the main shop area.
6.As you walk into the premises through the rear door you walk through a smaller back room and through another door into the main shop.
7.I found the cheque book just to the right of that second area going into the main shop area.
He handed the cheque book to Adrian who gave it to the police (ts 194).

The cheques (Exhibit 29A to E)

The timing of these cheques is significant. The accused says that Pauline Mack died on 21 December 2008, a Sunday. She remained at the house, he says, until she was buried at dead of night on New Year's Eve. Four cheques were dated during this period. Four cheques drawn on the deceased's account are as follows:
•25 December 2008 B. D. Mack $3,250;
•29 December 2008 Magistrates Court of WA $175.00;
•29 December 2008 Walcott News Delivery $48.50;
•29 December 2008 Magistrates Court of WA $175.00.
The last cheque was not cleared by the bank until 23 January 2009.
The accused admitted to pre‑dating cheques. That explanation may make sense in relation to the Magistrates Court cheque but does not make any sense with the cheque for $3,250 written by the accused to himself on Christmas Day 2008. Christmas Day fell on Thursday, so the first available opportunity to cash the cheque was Monday, 29 December 2008 when it was debited in the account. Even taking a generous view that the cheque was not written until 29 December 2008, it was certainly presented for payment on that day when the accused, on his account, knew his mother was dead in the shower. He had not yet disposed of her body.
Mr Vandongen submits that the personality of the accused is such that he needs time to process information and changes. A huge change in his life was finding his mother dead. He needed time to process that information and then realised that he had done too little, and it was too late, so he had to dispose of the body. However, as the cheques show, he was quite capable of paying himself and paying off debts. The speed at which he began to draw on Pauline's money is powerful evidence the accused had processed her death and was acting to his own advantage in respect of it.

The electronic records of interview and conversations with Adrian Mack

The accused took part in four interviews with police. The first occurred on 26 August commencing at 3.55 pm (Exhibit 19A and 19B). This interview was at the time the accused was arrested.
The second interview occurred on 2 September 2010 at 11.28 am at the Hakea Remand Centre (Exhibit 20).
This was followed by a third interview on 10 September 2010 also at Hakea at 1.36 pm (Exhibit 21).
In 2012 the accused advised police of the whereabouts of his mother's body. As a result police conducted exhaustive and intensive investigations at an area at Lake Gwelup culminating in removal of four feet of top soil. No body was recovered. The accused declined to be video recorded during the five day search.
Subsequently, through his lawyer, the accused again contacted police and on this occasion, in the presence of his solicitor, he undertook a series of interviews pointing out various places of interest at 144 Fairfield Street (Exhibit 22A and 22B) and then at Lake Gwelup later in the afternoon (Exhibit 23).
Between the police interviews the accused talked to his brother by phone and in person. The conversations were recorded on 9 September 2010 and 15 February 2011. The phone conversations were 19 October 2011 and 6 May 2012.
The State provided transcripts of the EROIs. I have used the transcripts as an aid but relied on what is said on the DVDs. There are some discrepancies. The same is true for the conversations recorded with Adrian Mack.
In respect of the first three interviews, it is not in contention that the accused told lies.
However, it is the defence submission that in the EROI on 5 July 2012 the accused told the truth about the demise of his mother when he said she killed herself in the shower by slashing her arms.
The lies told by the accused to the police (together with the other lies and evasions) and the lies told to Adrian Mack are significant in evaluating whether the account he gives on 5 July 2012 has a reasonable possibility of being a truthful account or whether that is also a lie.
The EROI of 5 July 2012 has to be examined in the context of all that had gone before. I have concluded that the accused's exculpatory account on 5 July 2012 is yet another lie. In order to understand why I reach this conclusion it is necessary to take account of many statements to the contrary which the accused has made.
I set out the salient features. Necessarily that is a lot of material.

EROI - 26 August 2010 (Exhibit 19A)

This interview commences by recounting events which had occurred earlier when 144 Fairfield Street was searched by police pursuant to warrant. The video record of that search was not tendered in evidence but was referred to in Exhibit 19A:
Q.All right. And as it's explained to you today the reason that we got the search warrant is she hasn't been seen as far as we can tell for a couple of years.
A.Yes.
Q.Yep, okay. And we asked you where your mum was.
A.Yes, on camera.
Q.Yep, okay. And what did you say?
A.I said I'm not allowed to say.
Q.Okay.
A.It ‑ wouldn't all this be on camera?
Q.It, it is. I guess I'm just trying to ‑ when you say you're not allowed to say that's the bit that you're not explaining to us and it's making it difficult.
A.Yes, I realise that.
Q.Mm hmm. When you say you're not allowed to say why are you now allowed to say? Who's not allowing you to say?
A.My mum doesn't allow me to tell anyone.
Q.Your mum doesn't allow you ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ to tell anyone where she is? Okay.
A.It's not that simple (brief 378 - 379).
...
DETECTIVE SCANTLEBURY: ‑ ‑ ‑ (indistinct) from there. And what you're hoping for, and if I'm gettin the words wrong then please tell me, you were hoping that even though we haven't been able to find your mum in the last three weeks you were hoping that because this new media, ah, (indistinct) media but the request that, ah, is gonna go out by, um, our boss that if anyone's seen your mum ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ you're hoping that's gonna help out?
A.Yes, that's just so that it's not me whose done it. It's not me whose caused you to, to get into contact with her. It's not my fault.
Q.And, and, correct me if I'm wrong, ‑ ‑ ‑
A.That's, that ‑ it's too late now. I, I couldn't even think before. As I said this afternoon and I couldn't make up my mind in time.
Q.Yeah, and I'll ‑ ‑ ‑
A.Sorry, now the media's out and it's too late ‑ ‑ ‑
Q.If I can ‑ ‑ ‑
A.‑ ‑ ‑ so it has to be that option.
Q.I'll just recap on that, that part there where we discussed the fact that, um, you were giving some thought, some serious thought, for quite a long time that you would take us to where mum is?
A.Something like that.
Q.Yep. And what we're trying to do is work out a way that we can make sure mum is alive without her knowing that you told us.
A.Yes. Yes, ‑ ‑ ‑
Q.Yeah.
A.‑ ‑ ‑ that's what it was.
Q.Yeah. And, and as you said you couldn't think clearly enough obviously cos of the, um, now all this attention so that's why it's come to this now that you said look I, I won't tell you where, where she is, um, but hopefully the media will help you find her.
A.Yes (brief 380 ‑ 381).
The interview then covered financial matters including the accused's business in computers:
Q.How much money does your mum give you for your business?
A.It's not really giving me money, it's to help with paying bills and that sort of thing.
Q.Okay, so how much money does your mum give you to help pay bills?
A.It might be a couple of thousand dollars a month.
Q.And how does she do that?
A.Cheque.
Q.So she gives you cheques?
A.Normally, yes, I would say.
Q.You seem a bit unsure then.
A.Yes, I have to show the account first, get it, it authorised and then I may get payment.
Q.Okay, so, sorry, you show her the account ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ and then she authorises payment?
A.Yes.
Q.How ‑ when you say authorises payment what do you mean, what does she do?
A.Decides whether she wants to help me or not.
Q.Yep. So the cheques that she writes does she write those or do you write those?
A.No, she writes them.
Q.And does she write cheques to you or does she writes cheques to the companies that you have accounts with?
A.Well see that's what I meant before. Normally it's to pay for bills but it hasn't always been the case.
Q.Yep.
A.But then again they ‑ those were just to get it, um, it just, just help with other things but not, not bills.
Q.How long has she been doing that for?
A.Late 2009 or so.
Q.Mm hmm. And how much money do you think she's given you then since late 2009, just approximately?
A.I don't know (brief 383 - 384).
...
Q.Yeah. And from memory you said to us before mum moved out the weekend before Christmas in 2008?
A.Sunday before Christmas 2008.
Q.So you've got your business and you get some money from your mum. When you ‑ how do you contact her and how does that all come about?
A.I can't say that.
Q.You can't say.
A.I told you that before (brief 385).
...
Q.Mm hmm. Um, just in relation to this, Brent, we spoke to you back at your house about your mum's driver's licence.
A.Yes, and I said she's not driving anymore so she doesn't need it.
Q.Okay. How come she doesn't drive anymore?
A.Well she, she doesn't need to.
Q.What if ‑ ‑ ‑
A.But I said she should still have it because if you just renew it then you've always got it.
Q.All right. But if she's not driving why would she need it?
A.Well, well you may as well renewal [sic] it if you can.
Q.Okay. How come you haven't given it to her?
A.Because I wasn't really supposed to renew it.
Q.You weren't supposed to renew it?
A.Yes, I, I wasn't supposed to have it renewed. As I said to you before I, I get ‑ collect the payment sometimes and send off the bills and that sort of thing but I wasn't really supposed to end up sending it.
Q.Okay. So you renewed this not your mum?
A.I ‑ as I've told you before I have to check with her first ‑ ‑ ‑
Q.Mm hmm.
A.‑ ‑ ‑ and, ah, I didn't follow her instruction in this case to the word but as I said it, it's a good idea to renew driver's licences.
Q.Okay. And what were your instructions in this case?
A.Basically to not do it (brief 389 - 390).
...
Q.I'm just wondering, Brent, if you actually wrote that cheque yourself?
A.If it was from my account then I would have. If it was from her account then she gave it to me. I can't remember the exact details.
Q.Okay. It was from her account, ‑ ‑ ‑
A.Okay.
Q.‑ ‑ ‑ okay.
A.Well in that case she would've given it to me and I sent it off.
Q.Okay. But you said to me just then that she didn't want it renewed. Your instructions were not to renew it and yet you're telling me that she's given you the cheque written out to the Department of Transport to renew it.
A.It's, it's not that simple. It ‑ she didn't really want me to do it but you speak with her again and then it's, it's okay. And then it's not (brief 391).
...
Q.All right. Have you ever written from mum's account like on mum's cheques?
A.No, because she's got that.
Q.Yep. Your mum's got that cheque book with her?
A.It's her of course she does (brief 392).
...
Q.No, okay. What about the car that she owned at the time?
A.Yes.
Q.What happened to that?
A.Well that one was left there at first and then unfortunately a road train ran into the back of it. His fault. Ah, and then she made me purchase it off her and then, um, eventually I just used it up for parts, I sold it.
Q.Okay. So do you still have the body for ‑ of that one anywhere?
A.No.
Q.No, okay. So you sold it with the registration plates or without the plates?
A.Ah, without. I'm pretty sure I sold it.
Q.When did you sell it?
A.Um, it was, ah, I can't remember now. It was some time ago like two years ago ‑ ‑ ‑
Q.Okay.
A.‑ ‑ ‑ and the driver of the truck I showed him my licence and we exchanged the details and all that stuff. Um, even though it was him who ran in the back it was just on Leach Highway I think it was and, um, I'd just changed from the left lane into the right lane and there was the truck behind and the next moment he, he hit ‑ he, he runs up the back and I thought he was getting a bit close but the next moment he, he runs up the back.
Q.Okay.
A.So that's, that's, that's what happened.
Q.So your mum ‑ you had a crash in the car when you were driving?
A.I didn't, someone ran up the back ‑ ‑ ‑
Q.Someone ran up, ‑ ‑ ‑
A.‑ ‑ ‑ while I was driving.
Q.‑ ‑ ‑ ran up the back of you while you were driving.
A.While I was driving at 70 Ks an hour.
Q.Okay. And after that your mum made you buy that car?
A.Yes.
Q.Yep. Okay, and it was a wreck and eventually you sold the wreck?
A.Oh, it wasn't a wreck, it was ‑ ‑ ‑
Q.It was sold ‑ ‑ ‑
A.‑ ‑ ‑ accident damaged.
Q.Accident damaged and eventually ‑ ‑ ‑
A.Yes (brief 395 - 396).
...
Q.What's the biggest amount of money she's given you at one time?
A.That would've been to start the business running.
Q.Yep.
A.And it would've been, um, quite a lot, I think about 20 or $30,000.
Q.Okay. So she gave you a cheque one time for 20 or $30,000?
A.Yes.
Q.Okay. How, how many ‑ ‑ ‑
A.That was just for things I just pay in cash to get the ‑ get it fixed up, get the place fixed up.
Q.All right. And this is the time after your mum's moved out of the house, so she ‑ ‑ ‑
A.That was quite a long time afterwards. That was about a year after that.
Q.Okay, yep. Okay. And how did you get that cheque from her, did you ‑ ‑ ‑
A.I can't say that.
Q.Do you speak to her on the phone or what do you do?
A.I can't say that.
Q.Okay. How many times did she send you cheques like that?
A.I'm going every fortnight or something.
Q.All right. So she gave you one big cheque for 20,000 or 20 or 30,000?
A.Something like that.
Q.Yeah. Has she given you any other big cheques?
A.Well there's, there's those ones and there would've been a couple of those I think. And then there's the smaller ones I mentioned which is something like $2000 a month I think.
Q.Okay. So she sent you $2000 a month plus a couple of cheques?
A.Oh, hang on. No, no, there's 2000 a month. That's mainly to help out with some bills.
Q.Mm hmm. Okay. So how many big cheques has she given you?
A.I don't know, a couple or so.
...
Q.‑ ‑ ‑ 2008? No. So how did she go about her banking or how did she used to do it, what did she used to do? If she doesn't have an ATM card how does she pay things?
A.She would see the statements and then pay with cheque. That's all I know of.
Q.How does she get cash for herself?
A.I believe she would write ‑ she would cash a cheque.
Q.She would cash a cheque to herself?
A.Yes (brief 397 - 399).
...
Q.Okay. So what have you spent $160,000 on?
A.On the business basically.
Q.On the business, okay. And that's not including all the smaller cheques as well.
A.Not including any (indistinct) for help with bills, no.
Q.All right. How did your mum support herself?
A.Well it's, it's not really herself.
Q.And how does she live because all of her money, all of it, is going to you?
A.Ah, that's not correct. Some of the money goes to her but as I ‑ hang on, you're just trying to find ‑ I, I can't say what her living arrangements are.
Q.I, I guess what I'm saying, Brent, is that I've looked at her bank account and I've looked at your bank account and ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ all of the money that she's had has not been spent on living expenses for her. All of that money has gone to you and there's almost nothing left in there.
A.That wouldn't be true and as I said it doesn't all simply go to me.
Q.Do you use it for the business?
A.I use ‑ some of the money I, I use for her as well. It's not just for the business.
Q.Okay. What money do you use for her?
A.Well I can't say that.
Q.Do you buy her things, food?
A.I can't say that.
Q.All right. What's, what ‑ how does money go to her?
A.You're ‑ I can't say that. You're just trying to find ‑ you're just trying to get me to say where she is and I'm not doing that.
...
Q.Did you write those cheques to yourself?
A.No, I told you.
Q.Cos it's actually in your handwriting.
A.That's not correct except as I said before except for small portion. That's not correct (401 - 402).
...
Q.bdmack1@gmail, ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ who uses that email?
A.It's an email account that I opened up some time ago and there have been other people who have used it besides me.
Q.Are these the people that are hiding your mum?
A.I never said that.
Q.Or is it connected to that?
A.I never ‑ ‑ ‑
Q.Have you, have you ever written to the bank on behalf of your mum asking about her term deposit?
A.I don't think so (brief 409).
...
[I]'ve asked you a number of times where mum is. I've asked you a number of times where ‑ if you ‑ if mum was alive. I've asked you ‑ ‑ ‑
A.Yes, I know.
Q.‑ ‑ ‑ a number of times if you've killed mum.
A.Yes, you have.
Q.Okay. And on each occasion you've given me an answer.
A.Yes, I have.
Q.Yep. And the majority of the answers are in relation to where is mum is you won't tell me, okay, so I'm not gonna try and trick ya into asking ya I'll only ask you straight up, mate. And that's why I was asking you in quite ‑ in a straight forward manner this account here and knowing that you protect your passwords as I do and as Heather would you don't give it out. So if someone ‑ ‑ ‑
A.No (brief 415).
...
Q.Yeah. But it's just a little bit ‑ from us and, and, and if you put yourself in my shoes, mate, got someone here that won't tell me where mum is. No one's seen her for such a long time and all her money gets drawn from her accounts and her fixed term into the person, the only person in this room, the only person in this building, and could be the only person in the world who knows where your mum is. You see where ‑ ‑ ‑
A.Well I understand what you're saying.
Q.Mm.
A.That's all I can say. I, I understand what you are saying.
Q.Can you help me with an answer.
A.Well it's not, it's not like that.
Q.You can allay my suspicions easy, you know that.
A.Well I, I, I, I think it's ‑ that's the police point of view (brief 417).
...
Q.Okay. And the other thing is too, and, sorry, Heather, I'm just gonna backtrack for a minute, when we were talking back at the house and, and you were concerned about mum finding out that you told us where she was and if that was the case you ‑ she would tell you to leave the house and you'd have nowhere for your dogs and your, and your birds and basically ‑ ‑ ‑
A.Yes, I remember.
Q.Yeah. And we come up with a couple of ideas of what we could do, you know, and one of them was perhaps get Alinta Gas to go in and, and we, ah, evacuate ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ 20 houses, you know, and, and that way they can see if mum's alive without you (indistinct)
A.I know but it's too late now.
Q.No, it's not.
A.Cos I couldn't think.
Q.Nah, nah, nah, it's not, it's not too late, okay. But what I'm saying ‑ ‑ ‑
A.It's too late now because the media's in it now.
Q.That doesn't matter. Even if the media reported it, mate, ‑ ‑ ‑
A.Of course they have. It's ‑ it would've been on the news.
Q.But where's it ‑ they don't know what's going on, okay. They don't know what's going on. Your mum won't know what's going on. She won't.
A.It's in the news.
Q.Yes, it's in the news, okay, and if we say worse gets to worse, we get very pessimistic on it, and say mum watches the news and mum sees her house being searched in, ah, in Mt Hawthorn, um, and there's cameras here, your mum sees a map book, ah, recognises a hand that could be her son's and she thinks my son's been taken into custody how is she gonna put that and the fact that her and 20 other neighbours have been evacuated by Alinta Gas on the premise of a, of a gas leak so we can identify her. I mean that's just one of the ‑ a very quick thought we had and we had a hundred different ones we could've gone through.
A.I know but it's too late now.
Q.It's never too late. It's never too late for you to help us to locate mum or to alleviate all of this, okay.
A.I did tell you some concerns I had ‑ ‑ ‑
Q.Yeah, yeah, ‑ ‑ ‑
A.‑ ‑ ‑ before ‑ ‑ ‑
Q.‑ ‑ ‑ yeah, you did.
A.‑ ‑ ‑ and, and I wasn't able to finish thinking (brief 418 ‑ 419).
...
Q.‑ ‑ ‑ out of the way and also if down the track, um, if we can get in contact with mum, if we get in contact with mum, she can say well those cheques are ‑ haven't been fraudulently written by my son, all the money hasn't been sent from my account into his account. And without that, mate, it makes it pretty hard for us.
A.Well I did tell you before I thought of ‑ if, if the dogs and the birds will be held for 28 days then I've got some time to hopefully finish what I was trying to think about and that's only if you don't find her first because if you find her it's nothing of ‑ ‑ ‑
Q.That's right.
A.‑ ‑ ‑ my doing.
Q.Yeah. And don't think ‑ ‑ ‑
A.And then I can get the dogs and the birds back.
Q.But you know that, you know the dogs and birds aren't being held (indistinct) You know that's not a pressure or, or a, um, an inducement for us to ‑ just cos the, the dogs are now at the pound as you know and that had to be done so the forensic could go in and search the place ‑ ‑ ‑
A.Yeah.
Q.‑ ‑ ‑ and the birds are gonna be taken and looked after so that they can get in there and search those areas ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ and they don't get out, all right. So none of that, and (indistinct) not to you to let me know if, if it's confusing for you, none of that is an inducement. You know, there's no pressure saying to you in 28 days if you haven't told us where your mum is then we're gonna put your dog down or in 28 days if you don't tell us where your mum we're gonna let your birds out. That's not the case, okay. What the case is is the pound holds them for 28 days, ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ okay, and then we have to make decisions from there, okay. And those decisions will be in consultation with yourself and you might know who you can give em to and you might ‑ however it is, all right, so don't for a minute think those things are held over you, okay. All right, sorry, Heather.
OFFICER:   That's all right. Is, is there a way, Brent, of us finding your mum that's not gonna get you into trouble?
A.I have to think.
Q.Okay. Well we've been with you a few hours now.
A.Yep. I can't think because I told you before everything's different (brief 420 ‑ 421).
...
Q.Mm, okay. That handwriting is also not your mum's, Brent.
A.That's not my handwriting.
Q.Okay. Well could this be one of the blank cheques she's given you and you've written your name and the amount?
A.That's not my writing (brief 423).
...
Q.What I think it is, Brent, is that your mum's not alive anymore and you've got her cheque book and you're forging cheques to yourself and you're going through the money.
A.If, if that's what you want to think then fine. I can't tell you what to think.
...
Q.Okay. Cos what I can see from your mum's bank accounts interesting that you say that, um, your mum was last at your house on the weekend before Christmas in 2008.
A.Sunday.
Q.Sunday. The Sunday, sorry, before Christmas 2008. Because I think you, you've chose that date for a reason. Because after that day is when we can no longer find any trace legitimate of your mum except ‑ ‑ ‑
A.Well that's obvious.
Q.‑ ‑ ‑ for what you're saying.
A.That's obvious.
Q.Mm hmm. All of your mum's money after that date goes to you.
A.That's false.
Q.But it is.
A.It's not correct. You said all of the money has gone to me. That's simply not correct. That would mean 100 per cent of every cent ‑ ‑ ‑
Q.Okay, well how much ‑ ‑ ‑
A.‑ ‑ ‑ goes to me.
Q.‑ ‑ ‑ of it, how much of it ‑ say that 160, how much of that has actually gone to you?
A.The 160 if that's what it actually adds up to wouldn't be all of what she has. And secondly some of that is not ‑ it, it is not for me. I told you so many times.
Q.So some of that's for her?
A.Yes.
Q.So she gives you money for her?
A.It doesn't ‑ basically, yes (brief 426 - 427).
...
Q.And the next thing that happens is an email comes from your account asking how she can access her term deposits which have got a ‑ quite a substantial amount of money in.
A.Fine.
Q.And the next thing that happens is that term deposit goes into her account and comes across via cheques to you, cheques that don't appear to be written by her and that the bank says is not her signature.
A.Again it's you could've made all this up and it's not ‑ ‑ ‑
Q.I haven't, I haven't made this up.
A.‑ ‑ ‑ how it is.
Q.Well how is it then?
A.It's not ‑ I, I think I've already told you and I've already answered all the questions. It's, it's ‑ I can't run through it all again. I can't, um, it's too much and I'm too tired now.
Q.You just haven't given me an explanation that makes sense, Brent. We've asked you quite a few times what happened to your mother and all you can say to us is I can't tell you, I can't tell you and it's like that, you wouldn't understand. I mean you're sitting here being interviewed by homicide detectives, Brent, and if there's a simple explanation then we'd like to hear it.
A.Well there isn't a simple explanation.
Q.Okay.
A.I've told you that. And it's on camera from at home all those conversations. You've got all those. And whatever you've brought up here again you've ‑ you could have some stuff here of this tape as well.
Q.But there's nothing that's telling us how ‑ where mum is. You're telling us your mum's alive and well but you've given us nothing all day.
A.Well I disagree with that. I think you're just making it sound good for you for this tape and this tape's the one you want to use as the main one or something. You seem to be different now (brief 427 ‑ 428).
...
Q.‑ ‑ ‑ said where she is there's, there's a number of different stories that you've told people.
A.No, that's not correct.
Q.Okay. So what have you told people?
A.Well you, you tell me what you think. I told you on camera at the house that I, I just say what I've been told to say which is something such as she's overseas and can't deal with you now.
Q.She's overseas and can't deal with you now.
A.Not those words but that sort of thing.
Q.All right. So what is it you've been told to say, sorry?
A.That she's overseas and, and obviously as a result can't deal direct with you.
Q.Okay. Why do you have to say that?
A.Because that's what I have to say.
Q.Is she overseas?
A.I told you I can't say where she is (brief 431).
...
Q.So all of these times you ‑ when you need to talk to her about something you don't ring her you see her?
A.So what?
Q.So she must be somewhere close by for you to see her.
A.So you're saying that her being overseas is a lie. Of course it is. I've been told to say that's where she is.
Q.What, she told you to say that?
A.Yes. That's just the ‑ what I need ‑ what I have to say if someone asks where is she.
Q.What else did she tell you to say?
A.It's not for me to say. That's about it I think.
Q.Okay. Um, just one quick thing and then I'm pretty much done. When Nellie and that came over they received some sort of communication from your mother afterwards when they came to your house.
A.No, they left with nothing.
Q.Yeah, but after that they received something from your mum.
A.Okay, what was it?
Q.For them to do that you must've been in contact with your mum.
A.So what?
Q.So after they came to see you were you in contact with your mum and not ‑ ‑ ‑
A.Yes.
Q.What did you tell her?
A.That Auntie Nellie and Auntie [Uncle] Harry came.
Q.What did she say?
A.I don't wanna go through that.
Q.Okay. The correspondence that they received from, from your mum was a letter.
A.Okay.
Q.Did ‑ have you seen the letter?
A.Well it seems very strange because after everything we've been through today and you're saying that they got a letter.
Q.Has ‑ is that a letter you've seen? Did your mum give it to you to send on?
A.I don't think she sent a letter.
Q.Well who sent the letter then?
A.What are you trying to tell me that she has sent a letter or she hasn't or what?
Q.Did you send a letter on her behalf?
A.No.
Q.Okay. Cos I don't think she sent that letter.
A.Of course you don't as you've said about everything in this, this tape here.
Q.Because that letter is not an original handwritten letter.
A.I don't know what it looks like (brief 434 ‑ 436).
...
Q.Has she been to see the business and see how it works?
A.Why do you want to know that?
Q.Well I'm just asking the question. Mate, from what you've told me today I think it's fairly reasonable for me to assume that mum's not overseas and that mum is in an area where you can, if mum's alive, that you can go and see her. Okay, so it's not too far and it's ‑ you can go ‑ cos you must have to go there regularly to pick your cheques up and those sorts of things. Would that be fair?
A.It's not, it's not that regular.
Q.No, but it's more than, it's more than once every six months.
A.Oh, yeah, yeah (brief 438).
...
Q.And mental health? And that could be, and that ... That's gonna finish now or soon. That's gonna finish, I'll be very quick. (indistinct) pushing you cos I know your mum had stress and mental pressures in the, the time that dad died and, and your brother and that sort of thing, okay, so I understand that she would be under some stress so we're not pushing there but ‑ and I'll go back to her physical health. Did mum have any, um, any illnesses at all that she had to (indistinct) medications ‑ ‑ ‑
A.No.
Q.‑ ‑ ‑ for? She wasn't under any ‑ ‑ ‑
A.She was fine (brief 439).
...
Q.Okay. Um, we've asked you this question a few times today, Brent, but you've gotta understand that if there's a jury sitting there they're, they're gonna want ‑ they are gonna want an answer on this. How ‑ what can we do ‑ ‑ ‑
A.I'm not planning to go ‑ ‑ ‑
Q.‑ ‑ ‑ to any, any ‑ ‑ ‑
A.‑ ‑ ‑ as far as a jury.
Q.I don't think that's gonna be your decision, Brent. What can we do to ease where the concerns you have about your mum? If your mum's somewhere alive and you're worried ‑ ‑ ‑
A.Yes, in 28 days ‑ ‑ ‑
Q.‑ ‑ ‑ about it what can we do?
A.‑ ‑ ‑ for me to make a decision isn't there?
Q.That's about your animals. That's nothing to do with this.
A.Yes, it is because if you haven't found her then I can think of whether something can be planned as we talked about at home.
Q.Okay. So what you're telling the jury is that you need 28 days to think of a plan to find your mum?
A.I don't, I don't understand (brief 440).
...
Um, what I was asking you before the video turned off and I'm not sure if you understand me here, if a jury sits and listens to this I can guarantee they're gonna have one question on their minds, why can't he tell us where she is if she's alive.
A.Yeah, I don't plan on it getting that far.
DETECTIVE SCANTLEBURY:   What ya planning?
A.Well either you find her. If you don't I'll have to think about what you mentioned in the house where you can pretend to be someone else. Do you know what I'm saying?
Q.Yeah, yeah, I know what you're saying. And how long until (indistinct) 21 days as (indistinct) how much time ‑ even though we spoke about wasting police resources and all those sorts of things, ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ how long do you think you're gonna wait until, until you tell us or until you help out?
A.I, I'm not sure. It has to be within the 28 days.
Q.And you ‑ so ‑ ‑ ‑
A.It depends ‑ ‑ ‑
Q.‑ ‑ ‑ you're saying 28 days ‑ ‑ ‑
A.‑ ‑ ‑ on what (indistinct)
Q.‑ ‑ ‑ cos you're only concerned about the dogs and your birds.
A.And the birds.
Q.Yeah. Well shouldn't you got more concerns about yourself and what could happen to you as opposed to the dogs and birds?
A.As I said at home, no (brief 442 ‑ 443).
...
Q.‑ ‑ ‑ told you that we need to access those aviaries ‑ ‑ ‑
A.Yes.
Q.‑ ‑ ‑ so we tried to arrange someone, some bird person, to come and get the birds. Do you understand that we will be ripping your house up and we will be ripping your backyard up? All, all of that ‑ you're gonna let 40 police officers spend five days doing that and put yourself up for murder charge. People won't understand why you're doing ‑ help me understand, why you'll let all of that happen rather than tell us that your mum's alive and let us know ‑ work out a way of finding her.
A.Yeah, I told you it's too hard to say and you won't understand. It'll take too long (brief 444).
...
OFFICER:   If she's alive, Brent, tell us how we can work a way to find that out. We'll work with you.
A.I have to think.
Q.If she's alive then we need, ‑ ‑ ‑
A.I, I ‑ ‑ ‑
Q.‑ ‑ ‑ we need ‑ ‑ ‑
A.‑ ‑ ‑ need to think.
Q.‑ ‑ ‑ we need to stop doing all these things we're doing because we're doing that, believe me, she's dead.
A.Well you're still looking.
Q.But if she's alive and we find her like we're gonna stop doing that.
A.Yes.
Q.So if she's alive tell us how we can find her.
A.I told you you will do (indistinct) and there's the media (indistinct) as well and if that doesn't work then there's only one choice I've got.
Q.So we've got maybe all these possibilities but you in fact know where she is that she's alive and well but you just won't tell us.
A.It's not just that I won't tell you. It's not that. You, you just have a look at the video from the house, you know what it was.
Q.But you never actually told us what it was. You keep telling us that you can't tell us what it is but you won't tell us why.
A.I'm not in the right state of mind to think at the moment.
Q.Is there any way we can work around it? Is there anything we can do?
A.I don't know, I need to think and I can't even think again now (brief 445).

The accused described how he entered the room:
Q.So the flyscreen was on there but it had a hole in it. Is that right?
A.Big. It was ripped down and was hanging.
Q.Okay. That's how you got through because you didn't remove it when you came through?
A.I used a hammer and either a chisel or a screwdriver, and I banged it from the other side. It must have been from - maybe from this side.
Q.When you came in? So this was damaged, was it?
A. Yes. This wasn't here (brief 1038 ‑ 1039).
The accused is referring to a security screen which is evident in the video and which Adrian Mack confirmed he had fitted to the bathroom, also repairing the lock on the window.
The accused then describes how he moved the body. He goes into considerable detail and on this occasion I am satisfied that his account of moving the body is essentially truthful. This includes taking lime from the rear shed where his father used to store it and putting lime in with the body which he says he buried in the wetlands at Lake Gwelup.
Towards the end of the interview he was asked:
Q.This version of events, is it your version of events or has someone helped you with this version of events to try and get you out of trouble?
A.No, this is all 100 per cent what happened. It's not made by someone else to be something that it's not (brief 1078).
At the conclusion of the scene at Lake Gwelup the accused is asked about the cheques and what they were used for and whether they were predated before being asked:
Q.I saw that, but I did see a lot of money was spent on your business and a lot of money was spent on your cars. But the question I want to ask you the most, mate, is did you kill your mum?
A.What do you mean?
Q.Did you kill your mum?
A.I already told you. I already told you.
Q.You told me a version of events. I just want you to answer that question for me, please. Did you kill your mum?
A.She didn't want any help. That's what she meant. Didn't want any help.
Q.Okay. I'm going to ask you the question one more time and I want you to think about what I'm actually asking you; not about whether mum wanted help or mum didn't want help. I'm asking did you kill your mum?
A.She didn't want any help, so no. And even if she did want help - but she didn't - it was her initiation.
Q.Did you assist her in any way?
A.She didn't want help, so no.
Q.Did you help her do what she did?
A.I wasn't there when she initiated that.
Q.Ian asked you before, and I said I'd give you time to think about it. What were the words that mum said to you when she was in the shower?
A.Didn't want to think about that.
Q.But now can you think about what she said?
A.I don't want to think about that time.
Q.Don't you realise that if you had called an ambulance when you first saw mum in the shower that she may be alive today?
A.She didn't want any help and didn't know what to do. And then after - as I said, after a few days it would have made it worse. And even if an ambulance was called then everyone would find out.
Q.Do you agree that when I asked you in 2010 - and if we look at the videos again - that if mum had done something to herself or if mum had died of natural causes or something had happened, you could have told us then.
A.She didn't want anyone to know.
Q.So why are you telling us now?
A.Because of Seamus and it was her that didn't want help.
Q.But you can't tell us what she said?
A.I don't want to think about that.
Q.Okay, so you won't tell us what she said?
A.She meant that she didn't want help (brief 1083 ‑ 1084).

Lies as consciousness of guilt

Mr Dempster, in opening the prosecution case, outlined six lies upon which he said the prosecution relies in a positive sense to an Edwards lie as to what may become the crucial issue of intent. They were:
•First, in 2009 telling Peter Beckton that his mother was overseas.
•Secondly, in July 2010 - 25 July 2010, telling both Nellie Chew and Harry Chew that his mother was living with someone else.
•Thirdly, on 7 August 2010, telling Constables Bear and Ball that his mother moved out the Sunday before Christmas in 2008.
•Fourthly, on 9 September 2010 telling his brother that she was staying with someone from the Chung Wah Association in a house in Balcatta near the tip.
•Fifthly, in February 2011, telling his brother that she was staying more in the Dianella side and that she was psycho and being looked after by a man.
•Sixthly, telling the police on 26 August that she had made him buy her a car after the car crash.
To this may be added a seventh lie:
•Telling police that she was alive, although he could not tell them where she was. That was repeated numerous times over various interviews conducted with him.
The prosecution's reference to 'Edwards lies' is a reference to Edwards v The Queen (1993) 178 CLR 193. The test for using a lie as consciousness of guilt is set out by the majority (Deane, Dawson, Gaudron JJ), 208 ‑ 209 as follows:
Ordinarily, the telling of a lie will merely affect the credit of the witness who tells it. A lie told by an accused may go further and, in limited circumstances, amount to conduct which is inconsistent with innocence, and amount therefore to an implied admission of guilt. In this way the telling of a lie may constitute evidence. When it does so, it may amount to corroboration provided that it is not necessary to rely upon the evidence to be corroborated to establish the lie. … When the telling of a lie by an accused amounts to an implied admission, the prosecution may rely upon it as independent evidence to 'convert what would otherwise have been insufficient into sufficient evidence of guilt' or as corroborative evidence.
But not every lie told by an accused provides evidence probative of guilt. It is only if the accused is telling a lie because he perceives that the truth is inconsistent with his innocence that the telling of the lie may constitute evidence against him. In other words, in telling the lie the accused must be acting as if he were guilty. It must be a lie which an innocent person would not tell. That is why the lie must be deliberate. Telling an untruth inadvertently cannot be indicative of guilt. And the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie. To say that the lie must spring from a realization or consciousness of guilt is really another way of saying the same thing. It is to say that the accused must be lying because he is conscious that 'if he tells the truth, the truth will convict him'.
…
If the lie said to constitute the admission is the only evidence against the accused or is an indispensable link in a chain of evidence necessary to prove guilt, then the lie and its character as an admission against interest must be proved beyond reasonable doubt before the jury may conclude that the accused is guilty. But ordinarily a lie will form part of the body of evidence to be considered by the jury in reaching their conclusion according to the required standard of proof. The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him exhibits a consciousness of guilt. They may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt (208 ‑ 209, 210).
In Axford v The Queen (Unreported; WASC, Library No 980200; 20 April 1998) the Crown case was that the appellant killed the deceased by cutting her throat with the intention of killing her. The appellant had called out for the police and ambulance. When the police arrived he told them that he had just arrived home and found her 'like this'. The deceased had had her cut throat.
In relation to lies:
It [the jury] was entitled to take into account the lies told if satisfied of their relevance as instructed by His Honour. It is not necessary that the lie, if found to be a relevant lie, go directly to the issue of intent. The test of its relevance is that it 'must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie'. (Edwards (supra) at 48). That implication can only be by way of inference and, in my opinion, it may, in appropriate circumstances, result from the lie itself and, in other circumstances, from the lie considered together with other direct or circumstantial evidence. Whether or not the implication is to be made and in what respect it implicates the accused are matters for the jury. In my view it would be inappropriate and indeed wrong for the learned trial Judge to have directed the jury, as the applicant's counsel submits he should have done, that it could only use the lies to inculpate the applicant in the offence of manslaughter (26).
I am satisfied that each statement identified by the prosecution was relevantly a lie.
Each statement was, I am satisfied, made by the accused knowing it to be untrue. Mr Vandongen points out correctly that they are essentially one lie. The lie is that Pauline Mack is still alive. I accept the point. That essential lie is indicative of a consciousness that the accused's mother is dead. Moreover, in combination with other evidence, such as the use of money, it supports a conclusion that the deceased died by the accused's hand.
The number and nature of the various lies also reflects adversely on the accused's credibility in relation to his claim that the deceased died by her own hand.
In 2009 the accused commenced lying when he gave Mr Beckton an account that his mother was overseas. The variations in 2010 to Mr and Mrs Chew and Constable Bear show an inventive nature and willingness to adapt the lies to the circumstances. The same can be said of the accused's lies to his brother in September 2010 and February 2011. In the latter conversation the accused, confronted with attempts by his brother to find their mother, altered details of the location.
I am satisfied that Pauline Mack was dead by 29 December 2008 when the accused first delved into her bank account. Had she been alive after that time, the accused's actions would have, in due course, been exposed to her. The accused was living with her in the house at 144 Fairfield Street. That he knew she was dead, I am satisfied beyond reasonable doubt.
Therefore, the lies that he told are a deliberate falsehood designed to deflect attention from Pauline's death by pretending that she was alive and out of contact.
They, were not the only lies that were told. I regard the card (Exhibit 2) as effectively a lie or guilty behaviour designed to advance the same theme that Pauline was alive and uncontactable. The card is also relevant to the credit of the accused. Its creation shows a highly manipulative and devious mind.
He lied to police about the cheque book. He lied about forging the signature 'Ah Bee Mack' on cheques. He lied when he said that his mother had advanced money to him from time to time to cover his expenses in the business.
He also gave inconsistent answers to police on matters of real significance. He denied that his mother had committed suicide and yet later told police an elaborate story about finding his mother in the shower bleeding, having slashed her arms with a knife. The time when he was asked whether his mother had committed suicide and he denied it was the opportunity, if it was really true, to explain the circumstances of her death. He was aware this may have led to his release.
His behaviour may be odd but he is intelligent. This lie is not explained by needing time to process information. He had plenty of time.
The accused is an inveterate and accomplished liar who has lied so often on matters of such significance that little of whatever he says can be safely accepted by me. I reject his self‑serving story of suicide. However, rejection of his explanations and in particular his final explanation of finding his mother in the shower, and subsequently burying her, does not convert the prosecution case into proof. The onus remains upon the prosecution to prove its case beyond reasonable doubt.
The lies are a major part of the prosecution case and as indicating a consciousness of guilt are an indispensible link in a chain of evidence necessary to prove guilt.
I am mindful, as was stated by the majority in Edwards:
Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence (211).
I am satisfied beyond reasonable doubt first that the statements outlined by the prosecution are each a lie; and, secondly, that they were told in consciousness of guilt of a homicide.
If a reason of the kind mentioned in Edwards is the explanation for a lie I cannot regard it as an admission.
This is relevant because it is submitted, in part, that the reason for the lies as to the deceased being alive was not to cover up the accused's crime but to cover up the deceased's suicide. The accused took the word 'No' as effectively meaning that no one should know the deceased had killed herself.
I understand the submission but I am completely unpersuaded by it.
By reason of his behaviour in relation to the deceased's accounts, including forging his mother's signature, his multiple lies, the creation of the card (Exhibit 2), he has no credibility whatever.

Findings on the accused's exculpatory account of suicide

It accords with both law and experience that a witness may be entirely truthful, be an entire liar, or may tell the truth about some matters and on some occasions, and be untruthful about other matters. A person who makes an EROI is not giving sworn testimony. They are not subject to cross‑examination. Nevertheless, comments made on an EROI are part of the evidence in the case to be accorded weight such as the court thinks fit.
A person may tell part of the truth and lie about another aspect of an event they are describing. This is what the accused has done.
I consider the accused's account to police at 144 Fairfield Street on 5 July 2012 is partially accurate. He did move and dispose of the deceased's body as he said.
I accept also the probability that his explanation where and how he buried the body is accurate even though the body was not found. It is coherent and plausible.
In contrast, his explanation that he broke into the shower through the window without first checking the door is implausible in the extreme. He found his mother with slashed arms and a knife. Simply because she said 'No' he left her under a cold shower for a week. He never called an ambulance or sought other help.
Instead he helped himself to her money while, on his story, his mother lay dead in the shower.
I completely reject as untruthful the accused's account that he found his mother in the shower, she having effectively committed suicide. These are my further reasons for rejection.
Throughout repeated accounts to police and to his brother the accused constantly minimized his involvement in any crime. His varying accounts of the use of money from his mother's cheque account attest to this. They range from outright denial to concessions in the face of overwhelming evidence. He denied that his mother committed suicide.
He constantly misled his brother and maintained a story that his mother was alive until it became untenable after his brother had made efforts to try and locate her. The telephone conversation of 6 May 2012 is telling.
Mr Vandongen forcefully argues that I should find there is a reasonable possibility that his explanation is true (ts 287). As he put it:
And can I suggest, just by way of general observations, that it's a record of him relaying genuine memories? And I made the point earlier that the prosecution don't seem to suggest that much of it was genuine, in fact, relies upon, speculatively, the notion that the death occurred in the bathroom. It's a situation, in my submission, which can't be discounted, that stupidly but loyally he put himself in this position. That he - that most people wouldn't do it, most people would have helped despite the request not to. Most people would not leave her in the shower. Most people would not have buried her and most people would not have covered up by lying, but he's clearly not most people. His character, as I've said, comes through on the video, particularly this one on 5 July. There's an absolute fascination with making sure that everything was done chronologically which, in my submission, supports the notion that what he was doing was reliving and relaying exactly what had occurred - it being so important to him that it be done chronologically. And in my submission that it's reasonably possible that this strangely-behaved man did all of those things and did not in fact kill his mother (288).
Mr Vandongen expanded this submission, correctly pointing out, that there is no evidence to show that Mrs Mack was not suicidal during the particular time.
I have taken into account all that Mr Vandongen said in support of the proposition that I cannot exclude beyond reasonable doubt the possibility that the deceased killed herself. I remain unpersuaded. First of all, the accused's account flies in the face of the accounts he has given before on every occasion when he has emphatically asserted that is mother is alive. Having seen him on video and listened to him, despite the oddness of his mannerisms, about which I have commented, I consider he is an intelligent and cunning person. He is aware of the difference between manslaughter and suicide. He is aware that suicide would exculpate him.
His behaviour in maintaining the lie that is mother was alive, if the truth was that she had killed herself, is inexplicable and incredible. Although he claimed that he remained silent out of some sort of regard for his mother and her wishes that no‑one should know, he felt no compunction in bad‑mouthing her to his brother, accusing her of being, amongst other things, insane and of taking out her anger on their late father.
Because the accused is intelligent and because Detective Sergeant Scantlebury told him so, it is inconceivable that he would have sat on a 'get out of gaol free' card for as long as he did rather than exonerate himself.
His evidence about what he says he did on 21 December 2008 is unbelievable. According to the accused, he is out in the shed working on computers and becomes concerned that his mother is too long in the shower. He does not suggest why her behaviour should cause him to become concerned. Most people in that situation would, as a first response, knock on the bathroom door and call out. They would not break in through the window. I am fully aware that the accused's actions have to be judged from his point not from the standpoint of the ordinary person. But the manner in which an ordinary person might react does have some part to play in evaluating the accused's version so long as it is remembered, as I do remember, that the accused is an unusual individual who does take time to process information.
Mr Vandongen placed great store on the broken lock and the popping off of the lock. He said:
[I] ask rhetorically, is it reasonably possible that he thought through all of this story to the degree of such minutia about the popping off of the lock? (295)

It is true that Adrian Mack confirmed the lock had been popped off and that he had to repair it. However, the accused was living in the house from the beginning of 2008 until his arrest in August 2010 and had plenty of opportunity to observe the state of the window and the lock. I attribute no weight to this submission.

Water flow in the rear bathroom - 144 Fairfield Street

The accused said that when he discovered his mother in the shower he turned off the hot water tap and left the cold water tap running for a week (Exhibit 22B, EROI 5 July 2012).
On 10 August 2012 officers from the forensic division conducted water flow tests of the shower which are recorded on Exhibit 25. The results of the tests are shown at Exhibit 26. The test procedure consisted of placing a graduated 10 litre bucket under the flowing shower (cold tap turned on to full flow) and timing how long it took to fill the buckets to the 10 litre mark. The test was conducted three times and the fill times were averaged. The average time was 22.5 seconds.
From this test, using the average time to fill a 10 litre bucket the follow rate, in litres per minute, was calculated at 26.27 litres per minute.
The volume of water over a seven day period using these figures was 268.83 kilo litres.
Mr Adrian Mack gave evidence that no work had been done in the bathroom since he moved back into 144 Fairfield Street after his brother had been arrested: 'I haven't even gotten around to fixing the hot water system yet in the front bathroom' (ts 196).
Detective Sergeant Scantlebury described the tap and when turned on the water started almost immediately and there is a constant flow (ts 230). He conceded in cross‑examination that full flow starts after a quarter turn of the tap.
The Water Corporation records for metre readings at 144 Fairfield Street, Mount Hawthorn are Exhibit 27. They show metre readings commencing on 30 October 2007. On 28 April 2008 the kilolitres used in the intervening period was 180. On 27 October 2008 usage was 146 kilolitres. On 20 April 2009 the usage was 154 kilolitres for the intervening period. The prosecution contends that this evidence is admissible and disproves the accused's account that his mother was in the shower and he left the cold water tap on for a week. If the flow reading is accurate, this inference has substance because it indicates that the volume of water of 268.83 kilo litres discharged in a week is not reflected in the metre readings of 27 October 2008 and 20 April 2009.
Counsel for the accused objected to the admission of the water flow evidence.
The law in relation to experiments is conveniently set out in Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [48] ‑ [55].
I doubt whether the water flow test can be described as an experiment. The flow of water from the showerhead on 10 August 2012 is an observable fact both as to volume and time. The projected calculations are simple arithmetic.
The issue is whether any inference can be drawn that the flow on 10 August 2012 is similar to the flow of water from the same shower head in December 2008. If no inference can be reasonably drawn as to similarity, then the evidence is irrelevant.
When Adrian Mack moved into the house he said he did not do any renovations to the rear bathroom. The evidence is silent as to whether the accused did or did not do any renovations to the rear bathroom involving the plumbing. Water coming from a shower head is a relatively commonplace event. Exhibit 27 does not show significant changes to water flows until 23 April 2010. No change of meter is recorded.
There is nothing to suggest that the readings in 2012 would give markedly different readings from 2008. The evidence of the tests is admissible.
In any event, commonsense would suggest that if a shower was running continuously for a week, there would be a significant increase in water usage.
Even drawing inferences most favourable to the accused, as a matter of ordinary knowledge about the flow of water supply by the Water Authority through domestic piping, the increase of only 8 kl cannot account for a week of water running continuously.
This evidence though is not decisive. It is part of the circumstances but from my point of view it simply provides confirmation of the conclusion I had reached independently of this evidence.
The accused's explanation that his mother killed herself is a lie. To summarise, the accused's explanation of what he did when he was confronted by his mother in the shower is unbelievable. He claims to have interpreted the word 'no' as a requirement that he do nothing, call no‑one, call no ambulance and never tell anyone. His story that he had the wit to turn the hot water off but turned the cold water on and left it running makes no sense at all. It is argued that the accused takes time to process information and then realised that he had done too little and it was too late to do anything. After a week his mother was dead. He needed money to live and it was not for a year that large sums were drawn. That submission overlooks two early drawings of $10,000 each.
Mr Vandongen argued that the accused's account is so bizarre that it is not possible it is just made up.
I find it so bizarre precisely because it was made up.

There is no evidence of cause of death

The fact that a person has lied does not of itself establish a specific contrary proposition. The majority in Edwards cited Edmonds v Edmonds (1935) VLR 177, 186 (Lowe J):
[By] no torturing of the statement 'I did not do the act' can you extract the evidence 'I did do the act'.
Rejecting, as I do, the suicide story, there is no evidence as to when or how Mrs Mack died. It may or may not have been on Sunday, 21 December 2008, although it must have been no later than 29 December when the first cheque, written by the accused, was presented to the bank.
As a result of my rejection of his exculpatory story there is no evidence as to the way in which, or the time at which, the deceased came by her death. However, I am satisfied, first, that she is dead and, secondly, that she was killed by the accused.
I reach the degree of satisfaction beyond reasonable doubt by virtue of his motive for her killing, his conduct in the use of her bank account to steal a large amount of money for his own purposes, his repeated lies, including the creation of Exhibit 2 and his account, which I accept, that he disposed of the body in the dark of night by burying it in a grave which he had dug, adding lime to the grave to hasten decomposition. That part of the interview was plausible and coherent.
The evidence to which I have just referred also satisfies me beyond reasonable doubt that the death was unlawful; that is, it was not authorised, justified or excused. The inference from all the circumstances admits to no other rational conclusion.

Murder or manslaughter

My finding that the accused unlawfully killed the deceased within the time specified in the indictment leads to the question whether the State has established, beyond reasonable doubt, that the killing was accompanied by an intention to kill or to do a life threatening injury. For reasons already expressed, I set aside the question whether the accused intended a life threatening injury. There is no direct evidence of that intention and an inference that there was such an intention is against logic in the way in which the prosecution case was presented as to motive and conduct.
There is no evidence of the accused's predisposition towards his mother. There is no evidence of prior acts of violence or anger that he showed towards her.
The accused had the opportunity to kill his mother. If, as he admits she died in the house, it is very difficult to see how anyone else could have killed her, especially without the accused's knowledge.
The accused's motive or purpose in killing his mother was to gain control of her property and money. This is evidenced by his post offence conduct when he put his purpose into effect by writing cheques, transferring funds, forging leases and indeed continuing to live at 144 Fairfield Street. The money he stole financed his business venture in computer repairs.
The lies he told are equally consistent with knowledge that he had unlawfully killed the deceased and with knowledge that he had intentionally killed the deceased. Because the inference from the lies is equivocal it would not be possible to be satisfied beyond reasonable doubt if they constituted the only evidence of guilt.
The disposition of the body in the manner described by the accused which, as I have said, I accept, is also consistent with an unlawful killing and with an intentional killing although far more consistent with an intentional killing.
Viewed separately, the circumstances could not sustain a verdict of murder, only manslaughter.
However, circumstances should not be viewed separately but together.
By the combination of all the circumstances I am satisfied beyond reasonable doubt:
1.The accused had a motive to kill Pauline Mack to gain control of her money and property.
2.Mrs Pauline Mack is dead.
3.The accused killed her by some unknown means prior to 29 December 2008, possibly on 21 December 2008.
4.The killing was an unlawful killing.
5.The accused disposed of her body in a way calculated to conceal her death and the cause of death.
6.The accused put his motive into immediate action by stealing from the accounts, to the eventual extent of more than $225,000.
7.The accused consistently and consciously told lies to divert attention from his crime because he knew he could not tell the truth and remain unpunished. He did so to cover up his crime of murder, not just a homicide.
The combination of circumstances points irresistibly to the conclusion that the accused unlawfully killed the deceased intending to bring about her death. No alternative inference is reasonably open. I harbour no doubt that the accused murdered Pauline Mack.

Verdict

Brent Donald Mack is guilty of the murder of Ah Bee (Pauline) Mack.

Order

Judgement of conviction is entered.