Velevski v The Queen

[2001] HCATrans 158

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S197 of 2000

B e t w e e n -

LJUBE VELEVSKI

Appellant

and

THE QUEEN

Respondent

GLEESON CJ
GAUDRON J
GUMMOW J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 31 MAY 2001, AT 10.00 AM

(Continued from 30/5/01)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Haesler.

MR HAESLER:   Your Honours, yesterday Mr Odgers, in regard to another ground, mentioned Dr Oettle’s conclusion with regard to the displacement of the nightwear of the deceased and I just draw the Court’s attention to a passage at page 77 of the appeal books in regard to whether Dr Bradhurst, when he took the rectal temperatures of the deceased to ascertain the time of death, had caused any movement of the bodies or any movement of the nightwear and he answered at 49, “most likely it was me”, and the evidence appears to be that he may well have disturbed the nightwear in order to take the rectal temperature prior to the photographs being taken.  It illustrates the problem of relying upon commonsense factors when forming opinions going to expertise and pathology.

In regard to the bed, the only reference to how far the bed actually may have moved that I can find in the transcript is in Mr Raymond’s – he is the blood analyst – at 341 where he estimates that the bed was out of position between “four to six and a half centimetres”.  The bed itself is described – I will not take you to those passages – by Detective Doherty in the extracted transcripts.

As to the movement of the bodies, Professor Mason, on a number of occasions, speaks of his conclusion that there was movement after death.  When, with respect to the learned professor, he is being careful, however, he seems to use the same term as “movement after death” or “movement after blood was laid down by Snezana” and that is quite an important distinction.

CALLINAN J:   Mr Haesler, I just want to draw your attention to a matter which may or may not assist you.  There was the cause celebre which came to this Court in 1921 called the Peden Case.

MR HAESLER:   Yes, your Honour.

CALLINAN J:   You know about that?

MR HAESLER:   I know about it.  There is a summary of the Peden Case in the Medical Journal of Australia.  If your Honours do not have it, I have copies of it.

GUMMOW J:   We have it.

CALLINAN J:   I have it here.  And there is a book by Mr Molomby. 

MR HAESLER:   Mr Molomby. 

CALLINAN J:   Yes. 

MR HAESLER:   Yes, at one stage I was going to say that this matter was unique.  The history, rich as it is, of this Court illustrates the falsity of making such bland assumptions.  Mr Peden in 1921 was convicted of murder of his wife.  She had an unusual cut throat wound involving five nicks to the spinal column. 

CALLINAN J:   We do have the article and I am having a search made here to find the papers.  It came to this Court, but I do not think there is any report. 

MR HAESLER:   There is no report. 

CALLINAN J:   It failed on an attempt to introduce fresh evidence and that triggered off the Royal Commission that was conducted by Chief Justice Street.

MR HAESLER:   Yes, and what triggered the Royal Commission was, in fact, comments made by the Bench, as I understand from the article and Mr Molomby’s book. 

CALLINAN J:   Yes, and the Court held that it could not receive fresh evidence, but was invited to comment and did comment. 

MR HAESLER:   Yes.  It illustrates, just for historical purposes, that this is not a unique case.  It illustrates, and the article illustrates, that in suicide matters there are on occasions wounds of great ferocity and that people can, when severely wounded, demonstrate feats of strength that ‑ ‑ ‑

CALLINAN J:   For the record, it is the Medical Journal of Australia, volume 153, 3 to 17 December, 1990, page 712.

MR HAESLER:   Thank you, your Honour.  Well, it does assist, your Honour. 

CALLINAN J:   Indirectly. 

MR HAESLER:   Indirectly.  It is not a direct precedent one way or the other.  Mr Molomby’s book does have a fairly extensive extract of the record of the High Court back in 1921.  It also illustrates how quickly a matter can go from trial to this Court back in the 1920s, something we might care to emulate. 

Back to the movement of the bed, your Honours:  at page 395 Professor Mason, while being cross-examined about the movement of the bed at about - the question is at line 7 - volunteers in his answer at 12, a question about the episode:

A.  I think we could, we could limit that, couldn’t we?

That is his volunteering -

It means that Snezana, in relation to the bed was moved, because it was her blood, wasn’t it?

Really, he volunteers that limitation on his own testimony and it is not in dispute that there was some movement.  He is being very careful, perhaps more careful than he was at other stages of his testimony.  There is a key point that the defence was raised by Dr Zillman, and it is discussed in all of the written submissions, both the Crown and the appellant, that arterial blood on the front of the bedside unit - and it is shown in photograph 37 at 999 - appears to have dribbled down over previously dried blood which was deposited by Snezana.  That is not a conclusive one, but it is indicative of later bleeding by Snezana so that her blood is laid down over her own dried blood.

CALLINAN J:   Mr Haesler, can you assist me on a matter?  Perhaps I should have asked Mr Odgers, but it seems to me that at page 99 the topic, if you like - I think one doctor described it as “incongruity of scene tranquillity” was introduced.  Now, that begins, I think, at about line 20 and goes down particularly to about line 39, 38.  It seemed to me that that was the first time that the topic of the unusual nature of the death scene, as it were, was introduced.  Is that right?

MR HAESLER:   I think it is, your Honour ‑ ‑ ‑

CALLINAN J:   I ask you this because it forms the basis, no doubt, for a proposition that this was a topic introduced on behalf of the appellant and it goes to matters not of expertise, as it were.  In fact, it is one of the sorts of matters that Mr Odgers criticises as not being within the field of expertise and a matter of which an expert should not have been invited to give evidence, but the invitation was extended by your side.

GAUDRON J:   It was cross-examination, was it not?

MR HAESLER:   It is cross-examination.

GAUDRON J:   Yes, that was your side.

CALLINAN J:   Yes, but I think it is the first reference, is it not?  I do not think the Crown - there was obviously something to that effect in Dr Bradhurst’s report, but his report itself did not get into evidence, did it; it was only those parts that were introduced orally?

MR HAESLER:   No, only those portions that were introduced orally.

CALLINAN J:   Am I right in thinking that that is the first time this subject matter is raised and it is raised on the appellant’s behalf in cross‑examination?

MR HAESLER:   In-chief, when he was quoting from his report, he did make a mention of the quiet scene before that, so I do not think your Honour is right in that sense.

CALLINAN J:   Well, if somebody can give me a reference to that.  I take it there was no objection?

MR HAESLER:   No.  I will just find the passage:  page 48 line 35, Mr Odgers has found it.

CALLINAN J:   And there is no objection?

MR HAESLER:   Not by Mr McGregor, no.  The next passage I take your Honours to in relation to movement of the bed is in Dr Oettle’s testimony at page 269.  He is reading from his report at about line 15:

I thought that given the extent of the injuries to the neck of Snezana, that is the bilateral severance of the carotid arteries and the major jugular veins, internal jugular veins, the right vertebral artery, the right side of the spinal cord, no movement by her would be possible, subsequent to their infliction.

He is then taken in-chief at ‑ ‑ ‑

GAUDRON J:   Could I ask a question there.  They were the first cuts that he is talking about?

MR HAESLER:   From his report, all of the cuts.  This is the point we make about Dr Oettle, that when he is giving his report he is speaking of after all of the ‑ ‑ ‑

GAUDRON J:   The total injuries?

MR HAESLER:   Yes.

GAUDRON J:   And he is not limiting his evidence to the first cut?

MR HAESLER:   He is not limiting himself to the first cut.  This is a point we make about Dr Oettle, that he has to be dragged to giving an opinion about the Bradhurst scenario, both by counsel for the Crown – and the scenario is put to him in‑chief at the bottom of page 284 of the appeal book.  I will not take your Honours to it; it is a bit too lengthy to quote.  But throughout the answers to the questions, he keeps on going back to his initial comments which are summarised best at 285 line 4:

I would have thought that the repeated cuts that she had to her throat would have stopped her moving as at that time and her bleeding would have been the result of the final movements of her heart trying to get –

So he keeps on going back to the repeated cuts.  He is taken to it in cross‑examination but once again does not address the exact scenario put by Dr Bradhurst.  He does not really do so until the Crown Prosecutor re‑examines at 324.

HAYNE J:   Just before you come to that, at 285, do I understand the thesis that Dr Oettle is putting forward there to be a thesis that because there is so much blood, the major vessels must have been cut and because it is all in one place, it must stem from all of the injuries occurring at once?  Is that the general nub of the thesis he is putting forward there?

MR HAESLER:   He puts it forward both that way and, because of the cuts to the throat cutting bilaterally across, there would have been so much blood.  So each supports the other.  It is not circular in that sense but they both are hypotheses that are consistent with each other.  So he cannot say, and I do not think he does try and say that because there was so much blood, there must have been these wounds, but these wounds would have produced that amount of blood.  It works both ways in that sense.  Eventually Justice Dunford at the top of 325 puts it directly to the doctor:

I think, Doctor, the proposition was put to you the first cut, cut the left carotid artery?
A.  Yes.

Q.  You just referred to the loss of blood on the right?

Which he had done.  Then he makes the proposition which rejects Dr Bradhurst’s and the scenario put by the defence.  It has taken him a very long time to get to it.

If I might take your Honours now to the events of the morning of 20 June 1994.

GAUDRON J:   Before you do that, is there evidence anywhere about whether the room can be locked from the outside?

MR HAESLER:   There was evidence of a locksmith, Mr Arundell - I do not think it has been reproduced – that by manipulating this type of lock it was possible to very carefully close the door so that it locked from the outside and gave the appearance of it being ‑ ‑ ‑

GUMMOW J:   But inside the room can you lock it, as it were, and pull it closed behind you as you leave?

MR HAESLER:   No, but you could, by locking it from the inside and very carefully holding the lock tight, pull it closed.  So, in the ordinary course of events, no, you could not lock it behind you, it would click out, but if you manipulated the lock in a certain way and held it carefully you could create the impression it had been locked from the inside.  It was possible to do that.

HAYNE J:   But there was outside something which by a screwdriver, a “paddlepop” stick, et cetera, you could unlock it?

MR HAESLER:   Yes.

HAYNE J:   And that could not be used to lock it?

MR HAESLER:   My reading of Mr Arundell’s evidence was no, but it was possible to do it by careful manipulation.

MR HAESLER:   We will find that in the transcript, your Honour.

GLEESON CJ:   Would you let us have Mr Arundell’s evidence, and any other evidence bearing on that same subject?

MR HAESLER:   Yes, of course, your Honour.  The point is against the appellant in that it was possible to create the impression the door had been locked from the inside.  Does your Honour understand that concession?

HAYNE J:   No.

MR HAESLER:   No.  They have in fact got the door here – not the door lock, but a – Mr Arundell, who was the lock expert, said that by careful manipulation of the lock, by locking it from the inside and then closing it very carefully as you left, you could create the impression it had been locked form the inside, so it was possible to set up that scenario.  It was not, from the appellant’s point of view, irrefutable proof that the suicide had taken place behind the locked door.  It was possible, if someone knew what they were doing, to so manipulate the lock as to create the appearance it had been locked from the inside.  It is that point that we could not rely upon it as a positive proof of innocence in any way that the door was locked.

GAUDRON J:   You might, I think, have Mr Arundell’s evidence made available. 

MR HAESLER:   Of course.  At about 4 am on the morning of 20 June, the next door neighbour, Mrs Jorge, left her home to go to work.  She said she did not notice anything unusual. 

GUMMOW J:   Now, this is June.  It is the middle of winter. 

MR HAESLER:   Middle of June. 

GUMMOW J:   So what time would the sun rise, normally? 

MR HAESLER:   After 7. 

GUMMOW J:   Certainly not by 6, I think. 

MR HAESLER:   No.  We will take cognisance of the date now.  It is after 7, at the moment.  Mr Velevski woke; it was dark.  He saw his father.  There are competing times as to what is given by his sister and himself as to exactly when he rang her, but certainly by 8 in the morning he and his parents were at his sister’s house – the suburb of Blackbutt, evidence is given, about 10 minutes south of the Velevskis’ home. 

GUMMOW J:   What is the explanation for him having his parents leave the house?  It seems to be about 6 o’clock. 

MR HAESLER:   They woke at 6 o’clock.  They did not in fact leave until sometime around 7 ‑ ‑ ‑

GUMMOW J:   I see. 

MR HAESLER:   They did not in fact leave until after he had had a telephone discussion with his older sister and arrangements were made that the parents would be taken to her house.  So it was not ‑ ‑ ‑

GUMMOW J:   What was his explanation for doing that? 

MR HAESLER:   His explanation for that was that he perceived that there had been a source of hostility between his wife and his parents, that she was caring for them and the children, and it was creating pressure on her.  On a previous occasion, when they had lived at a house in Cringila and tensions had arisen, his parents had voluntarily moved out for a few days in order to relieve the tension in the house.  So that was his evidence, that in order to relieve a source of antagonism between himself and his wife, he would remove his parents from the house.  It was not done immediately, but it was done early that morning, and yes, his mother was roused ‑ ‑ ‑

GUMMOW J:   The theory being that if and when she came out of the room they would not be there. 

MR HAESLER:   Yes.  In other words:  “I have got rid of the parents; we can talk.” 

GUMMOW J:   Yes. 

MR HAESLER:   That sense or source of antagonism was removed.  It was very soon after, and he did wake his mother in the dark, on a June morning, but it was not immediate.  It was within an hour or so, but they got them to the sister’s house at 8.  He then returned to the house at No 10 Castle Court, collected some more material and returned to his sister’s, where he remained until he went to the Macedonian Welfare – also in southern Wollongong.  They say he arrived about 11, but the chronology cannot be right, and it was not cleared up by any of the parties.  The amount of time he spent at Macedonian Welfare would not have fitted; he must have been there a bit earlier. 

What it allows is a short period of time after he left his parents, he returned to the home.  The Crown rely upon this, that, when he returned to the home, he told them that he did not check the room.  And they rely upon that as somehow indicative of his guilt.  They rely upon that to show he had time to clean up the house – and I cannot quote the exact words - but considerable amount of time to clean up the house.  It is obvious he did not have a large amount of time, but, yes, he was alone in the house for a period.  But that period takes into account having to get his parents to his sister’s, so for that period of time - an hour, an hour and a half - they were in the home, from 6 am to 7.30.

GUMMOW J:   How far away is his sister? 

MR HAESLER:   Blackbutt is a suburb south, about 10 minutes drive away. 

HAYNE J:   Is it clear on the evidence that by the time the parents leave the house, the children and their mother are already dead? 

MR HAESLER:   No one contradicted Dr Bradhurst’s estimation as to the time of death as being between 9 pm on the Sunday evening and 5 am on the Monday morning. 

HAYNE J:   That is, the murder of the children occurred while the parents were in the house. 

MR HAESLER:   All of the deaths occurred, yes.

HAYNE J:   Yes, and thus either suicide/murder or murder/murder occurred in a way where, on the evidence given by the parents, they heard nothing.

MR HAESLER:   That is the situation and the evidence given by neighbours that they heard nothing.  Whether they would have heard anything is a question, but at least at 4 am Mrs Jorge, next door, was out, and we do know from the evidence that you could hear the phone from the front door, at least, of the Jorge house coming from between No 10 and No 11.

GUMMOW J:   No one saw a light on?

MR HAESLER:   No.  So he did have time alone in the house ‑ ‑ ‑

GUMMOW J:   Presumably she was not suiciding in the dark.  She would need to be able to see what she was doing.

MR HAESLER:   As far as the evidence is, it was in the dark.

HAYNE J:   There were no lights on in the room when it was first broken into?

MR HAESLER:   No.

HAYNE J:   Is there any evidence about what natural light, if any, was available in that room during the night?

MR HAESLER:   The curtains were drawn but, no.

HAYNE J:   Drawn closed?

MR HAESLER:   Yes.  But how much light was available coming round those curtains from the street, we do not know.

HAYNE J:   But the thesis must be that whoever murdered the children did so in the dark.

MR HAESLER:   Did so in the dark – no, your Honour.  The Crown would say that Mr Velevski murdered the children with the light on ‑ ‑ ‑

HAYNE J:   I understand that.

MR HAESLER:   ‑ ‑ ‑ and then turned the light off as he left, hence, Detective Doherty checking very carefully the light switches.  If there was a suicide ‑ ‑ ‑

HAYNE J:   But the defence explanation would have it that it all occurred in the dark?

MR HAESLER:   In the dark.

GAUDRON J:   That light switch was checked for blood and for fingerprints?

MR HAESLER:   Yes.

GAUDRON J:   And nothing?

MR HAESLER:   Nothing.

GAUDRON J:   Not even fingerprints?

MR HAESLER:   No.  When they took it apart, they found nothing.

GLEESON CJ:   No fingerprints at all on the light switch?

MR HAESLER:   The evidence was the only prints that were able to be found were found on the knife and the cot.  Now, I appreciate that ‑ ‑ ‑

GLEESON CJ:   I was only going to ask how it would come about that a light switch would not have any fingerprints on it.

MR HAESLER:   There was no evidence ‑ ‑ ‑

GLEESON CJ:   I can think of one possible explanation.

MR HAESLER:   No, your Honour, it is identifiable prints.

GLEESON CJ:   That is why I asked you whether it had any prints on it.

MR HAESLER:   Yes, well, that is why I cannot – the evidence was given as to identifiable prints.  As I understand, there was no evidence to see whether it had been completely wiped clean, whether it was a clean light switch or whether it was a dirty light switch.  I am going beyond the evidence here.  It is the regular evidence that we only found identifiable prints.  People will say, “We might have found smudges, we might have found something else, but it was not identifiable”.  Friction ridges were not seen.

The evidence on that point was primarily given in regard to the marks on her leg.  They may have looked like finger marks but no friction ridges were able to be found.  That is not uncommon, that you will see something that might look like a fingerprint or might look like a smudge, but unless there is something – that friction ridge left by the print – to be developed or picked up, then it will not be tested.  So we do not have photographs of – it is often the case you will see where dusting has been done for fingerprints, there are marks and smudges turned up, but it is only those where an identifiable print friction ridge can be seen that are actually photographed and checked.  So there was certainly no evidence to say the house and everything in it had been wiped clean of stains or marks.  The evidence was simply the only identifiable fingerprints capable of being looked at were found on the handle of the knife and on the cot, and that on the cot turned out to be one of the investigating forensic police officers.

The evidence was not everything has been wiped clean of prints.  Certainly that evidence was not given in the case.  To check that you would have had to then go back – I could not find anything.  So, no, the obvious inference is not the lights were wiped clean; it is just no identifiable prints were found on the light.

He did have some time in the house, but we are talking well under an hour, probably less than half an hour, in the morning.  Of course, he could have used that time to dispose of things and clean up, but it was not a lengthy amount of time.  His sister, when he returned to the home – and he spent some time at her home between around 8.30 and before he went to Welfare – suggested he go to Macedonian Welfare, so he went to Macedonian Welfare.  It was the people at Welfare who asked him, “Have you checked the school?”, and they suggested to him he go in the afternoon.  He returned home, he took notes and he saw, on his own admission, his daughter’s school bag, but he went to the school.

GUMMOW J:   Now, the twins, they would require feeding at what intervals?  Is there evidence about that?  They were only three months old, were they not?

MR HAESLER:   Yes, there was evidence about that they were regularly fed and they were bottle fed.  He gave evidence that when he returned he did not think his wife was at the home.

CALLINAN J:   There was alcohol in their bloodstream when their blood – was there not – the twins?

MR HAESLER:   Yes.  Dr Bradhurst was asked – questions were asked of the alcohol and Dr Oettle gave an explanation that it may well have been decompositional change, but it was not.

CALLINAN J:   Yes, but Dr Bradhurst did not think it was, did he?

MR HAESLER:   No.

CALLINAN J:   He thought it was consistent with sedation; is that right?  You are not sure?

MR HAESLER:   I cannot answer that precisely, your Honour.  But the passage where he goes and visits the schoolteacher is discussed at length in Justice Kirby’s judgment in the Court of Criminal Appeal.  It is odd that he went there, but he went there partly because it had been suggested by Welfare.  He went to Welfare because it had been suggested by his sister.  It does not appear to be part of a coherent plan of dissembling.  He returned to his home around midday.  Certainly, at that time, he had more than two and a half hours in the home and at that time he had opportunity to clean the home.  Your Honour Justice Callinan is correct.  At 114 Dr Bradhurst comments about line 18, in answer to the question:

Q.  And that alcohol in children of such tender age would have had or alcohol in children of such an age has a significant sedating effect, doesn’t it?

A.  Yes.

Q.  You are unable to say by whom or when that alcohol was administered to the two baby children?

A.  No, I am unable to say that.  There is another factor too.  Decomposition as such can cause alcohol to either appear in the body or to be reduced in the body so it is important to exclude decomposition.

And further down:

A. I am unable to exclude the mother giving the children alcohol and in relation to that I didn’t notice any evidence of decomposition at my autopsy –

and similarly, he notes the Government Analyst made no note of decomposition.  So, yes, it remains a possibility that something was administered to the children.  Questions were asked as to whether alcohol was kept in the home and it certainly a house replete with alcohol.  There may have been some in a cupboard somewhere for special occasions, but it certainly would not match my own.

HAYNE J:   While you are interrupted, can I draw your attention to a point with which you may care to deal at the end of your address, rather than now.  You are engaging in an extensive review of all of the evidence directed to the proposition that the jury must have had a doubt or ought properly to have had a doubt.  Reviewing the whole of the evidence with a view to demonstrating that requires consideration of its entirety.  Do I understand the submission to be that the doubt which you contend the jury must have properly felt, or should properly to have felt, is a doubt that can be discerned only by review of the whole of the evidence, or do you put the argument that because of facts A, B, C, D, they must have felt a doubt?  That is, are you asking us, in effect, to retry the whole case, or do you point to a limited group of specific items as founding the doubt?  Now, as I say, if you care to deal with that at the end, by all means do.

MR HAESLER:   Yes.  Your Honour, we cannot say there is one significant factor or one or two significant factors which say there must be a doubt, and it is clear from the exposition to date that there are – and this was one of the problems faced by the Court of Criminal Appeal – differing view and parts where minds may differ as to what is given emphasis and what is not given emphasis.  It must require, unfortunate though that may be, a review of all of the evidence.

HAYNE J:   Yes ‑ ‑ ‑

MR HAESLER:   We have particularly emphasised some aspects of it, but, yes ‑ ‑ ‑

HAYNE J:   I understand that.

MR HAESLER:   To continue the chronology, Mr Velevski was in the home between approximately 12 o’clock and 2.40 pm when he went next door to his neighbours.  He was asking them questions, had they seen ‑ ‑ ‑

GUMMOW J:   What does he say he was doing in the house while he was there?

MR HAESLER:   Sitting, thinking, looking at photographs, the photographs in the lounge area.  He does not say he checked the room, he did not attempt to enter the room.  That is relied upon.  What he says he did not do is relied upon by the Crown.

He went to the neighbours to see if they had seen anything, seen anyone coming and going in the house and it was while he was talking to them that suggestion was made that perhaps the police be called and the police were called.  While he was speaking to them, his phone rang, he answered that, it was his sister, and arrangements were made for her to come to his house.  The police arrived around 4 o’clock and the bodies were discovered soon after.

The focus of the Crown’s submissions appears to be based upon what the appellant told the police and what, in his recollection and his statements as to his movements, on what he did not do.  He did not break into the bedroom, he did not go and visit his mother-in-law’s where he said he thought they might be.  Then it is asked why did he not do these things, and the answer is given, he needed time to clean up or he knew where his family was all along, so his attempt to find them was unrealistic and half‑hearted.

If, as the respondent says, he was deliberately creating a false impression, he was looking for his family, then why did he not do the obvious and go to his mother‑in‑law’s or the police?  If he was genuinely distressed, what was to be gained by going to the mother‑in‑law’s?  Peace of mind, perhaps.  He certainly did ask his aunt to ring.  He gave a history of antagonism between himself and his mother‑in‑law and that was not in dispute, as I understand it.

If he did go to his mother‑in‑law’s and his wife was there, then one would have expected confrontation and further aggravation of the situation.  If she was not there, then he was sending his mother‑in‑law and her family a message that something significant was wrong between himself and his wife, again, continuing animosity.  The Crown, in many ways, use this as a way of having it both ways, that he acted inconsistently with setting up a suicide scenario, therefore, his actions, which were odd, can be used to show his guilt.

If he had broken in some time during the day, we can then easily anticipate a respondent’s submissions that he did so in order to contaminate the scene.  That would have been the smart move, just in case he had missed something in the clean‑up.  His behaviour, we say, exhibits confusion brought about by distress.  He relied on his relatives for advice.  He did not give himself a huge amount of time before going to agencies such as the school and Welfare in order to clean‑up, taking a great risk, if he is the murderer, that someone might suggest, “Well, I will come around” or, “I will call the police”.

GAUDRON J:   But what was the point of the notes to the school?

MR HAESLER:   The child had not been at school on the previous Friday, perhaps even the Thursday, so there were absentee notes.  It makes no sense, on one level – why go to the school?  Her school bag is there.  The notes that she would have taken to school were not there.  Macedonian Welfare said to him, “Have you checked the school?  Check at 3 o’clock”.  He says, “I didn’t wait until 3 o’clock.  I went as soon as I got back to the house”.  No, it does not make a great deal of sense on either the murder or the suicide scenario is the point we are making.

We cannot explain it other than he was a man where there had been considerable distress in the household.  On any view, there had to have been distress because it was either enough to turn Mr Velevski homicidal or his wife suicidal.  He was told, “Have you checked the school?”, so he checked the school.  He was told by his sister to go to Welfare.  He discussed with his sister, going backwards in time, bringing the parents over to relieve the tension in the household.  If he had gone to his mother‑in‑law, that would have fitted the pattern of behaviour of someone who was trying to create an impression that his wife had suicided, in other words, “I am genuinely looking for my family”.

What he was doing was randomly – and Justice Grove used the words “perambulation” – randomly going around acting on the advice of others.  It does not fit a pattern of fake suicide.  It may be he had lost the rationality he had when he created that suicide, but it also is indicative of someone who was acting with confusion, of a simple man with limited emotional resources.

The record of interview, which is in volume 5, we say supports that because the number of points the police almost hand him on a plate the opportunity of making a comment adverse to his wife or planting a seed relating to suicide.  At question 89, which is found on 1019, he is asked - he is talking about his wife in hospital:

And how was she when she came home from hospital?

A (INTPRTR)  For one week she wasn’t able to straighten her body.

Q 90  Was she happy with the children?

A (SUSPECT)  Yeah; yeah, yeah.

At page 1031, he is given the ideal opportunity when the police raised with him:

Q 189  Had your wife been depressed recently?

A (INTPRTR)  What do you mean by depressed?

Q 190  Well, had she - had - was there anything in her life recently that had upset her?

A (INTPRTR)  Between me and her nothing has upset her.

Then he goes on to problems with her family.  But, on the Crown scenario, this careful charade of suicide, he passes up an opportunity, “Has your wife been depressed?”.

In relation to the “perambulations”, as Justice Grove calls them, the respondent says he needed more time.  But that hypothesis is really inconsistent, we say, with his behaviour that morning and the amount of time he, in fact, gave himself in the home prior, at least, to going to welfare and going to school.  His behaviour after 20 June, we say, becomes entirely consistent again.  He was under regular police surveillance and he was under regular media surveillance, as one would imagine.  He participated in over 24 hours of interviews with the police and, apart from entirely appropriate demonstrations of grief, there is nothing in any of that, or no evidence called to suggest that he exhibited anything to indicate his mind was unhinged.

The respondents set about their task, at trial and here, in establishing a circumstantial case based upon his behaviour, the lie, what he did on the following day and, of course, the medical evidence.  An analysis of those submissions - and it is set out in the written submissions - makes it apparent that so far as the medical evidence is concerned, the emphasis relied upon by the Crown was on the defects in the suicide scenario, and that was a legitimate tactic.

But we say this, Justice Hayne, requires a close examination of that medical evidence to see if the problems and anomalies and uncertainties in that evidence arise, we say, really, in regard to either hypothesis.  One can create an argument based upon certain assumptions but one is left, as it was left to the jury, in that there is a preference for one or a preference for the other:  homicidal or suicidal injury.  The problems that do arise were, and are, affected and summarised in the article from the Medical Journal of Australia.

This was an unusual case and if one applied a criteria of usualness, then obviously the behaviour of Mr Velevski, particularly on the day following the incident on 20 June, is odd, but unusualness is not guilt.  It does require careful scrutiny and we say that scrutiny reveals, as set out in the previous submissions and in the written submissions, discrepancies, matters which lack probative force, matters where the investigation was simply inadequate to allow a decision to be made.  The nature of this case is such that careful scrutiny can be given to the various points.  If you look for complexity in this case you will find it, but we say there are some simple things and Mr Velevski is not the calm, calculated murderer he was made out to be.  He did odd things and those odd things he did are relied upon to show his guilt when in fact all they are is, to use “odd” in reference to a scenario or a theory, that he is a murderer, because he did not do in many cases what one would expect a murderer to do; therefore he is behaving oddly, therefore he is the murderer.

It is a circular argument that relies primarily upon him doing unusual things on the day of the 20th.  It does not, we say, in any way found a case sufficient to prove guilt beyond reasonable doubt, no matter how you look at that concatenation of evidence.  When all of those matters are considered, and it is all of the matters considered, we say there is a significant possibility an innocent man has been convicted.

GLEESON CJ:   Thank you, Mr Haesler.  Yes, Mr Blackmore.

MR BLACKMORE:   Your Honours, if I could commence at the beginning with ground 1.  In essence our submissions will follow the written submissions that we have put in.  We are not proposing to read them to the Court or to go through them in any great detail.  There are things though that I want to add to the written submissions as I go through my address and I will go through each ground as I do so.

It is the contention of the respondent that there was no obligation to call additional experts referred to by Dr Bradhurst in his report to the coroner, and that was where it was initially reported on 26 August 1994.  Those other experts were not qualified in the sense that they did not have the brief of material from the Crown of the evidence.  The appellant’s real point must be, if this was correct, that it is the obligation of the Crown to qualify witnesses, not to call qualified witnesses.  There was no evidence that these witnesses were in fact properly qualified.

If that was taken to its logical conclusion and if it was suggested that somehow this should be balanced, in every case the Crown would be required to obtain witnesses, to somehow qualify those witnesses and then call them in the Crown case.  We submit that there is no such requirement and therefore the suggestion that somehow the Crown should have called those witnesses in this case is misconceived.

Further, we have submitted, though, at paragraph 4.5 of our written submissions, that even if there was some duty, if some possible duty in this case could be found to call those witnesses, the circumstances in this case do not lead to a miscarriage of justice.  The reason that we make that submission is the direction given by his Honour to the jury.  That direction is at page 751 in book No 4, and I wanted to just briefly go to it, your Honours, because it is a very powerful direction in relation to these experts. 

Our principal submission in relation to this is it really did not get any better for the appellant than this.  A proper understanding of what was being said showed that, in essence, Dr Bradhurst’s evidence was supported by these other witnesses.  We have made the point before that in fact all of this evidence was inadmissible, but it got before the jury.  These people in effect got their ex parte opinions before the jury, and the way they got them before the jury is and the way it was addressed to the jury was this - it is about line 25 on page 751: 

Reference has been made by defence counsel to the failure of the Crown to call particular persons as witnesses, e.g. Prof. Hilton, Dr Duflou, Dr Botterill and also I think, the father and brother of Snezana Velevska.  It is desirable that I give you a direction in this regard –

and then he gives a standard direction, Jones v Dunkel direction, in relation to that.  That of itself is a powerful direction in this case.  But then he goes on to say, at the bottom of the page – and this is extremely important, in our submission: 

Here however, in relation to the pathologists at least, there is no reason to speculate on what they might have said.  There is evidence both from Dr Bradhurst and from Det. Sgt. Whyte that they agreed with Dr Bradhurst’s opinion.  The Crown did not say that their agreement may have ‑ ‑ ‑

GAUDRON J:   The Crown did say. 

MR BLACKMORE:   Sorry: 

The Crown did say that their agreement may have –

and I will just leave out the other “may have” –

only been in passing and on limited information, as did Dr Oettle initially.  You will remember that Dr Oettle changed his mind when he got a more complete picture but there is no evidence that their concurrence with Dr Bradhurst was on this limited basis; and if they had expressed an agreement on incomplete information and/or later changed their minds, it would have been open to the Crown to call them to say so. 

Now whether that would be correct or not, that is what the jury was told.  Further on, the direction continues, “Similarly, of course” and this was the answer that was in fact given to the jury – the question was asked yesterday, I think, by Justice Hayne, and then the answer is given that yes, the defence could have called them, but it is then said this: 

The fact of the matter is they have not been called, and the only evidence about their opinions i.e. the pathologists, is that they have expressed agreement with Dr Bradhurst. 

It was an extremely powerful direction in relation to balance to give.  In effect, it meant that the jury could regard those doctors along with Dr Bradhurst, and if we were simply adding up numbers, they could be added into the numbers.  That is not, with respect, the way in which it ought to be done, but there has been suggestion that there was a lack of balance.  So, in essence, we suggest and we submit that that was an extremely favourable direction in relation to this matter, and that we have also addressed other aspects in our submissions in paragraph 4.5 that this case does not involve any miscarriage of justice in relation to the failure to call those witnesses. 

I want to now move on to ground 2 – otherwise we rely upon our written submissions in relation to ground 1.  Again in relation to ground 2 we submit that we have argued this ground in writing and we rely upon all of those submissions.  We argue this ground is a new ground.  It was not argued, as is implied, at least, in the initial submissions of the appellant in the Court of Criminal Appeal in this way.  It was argued in a different way in the Court of Criminal Appeal.  There is a requirement, in our submission, to comply with the requirements of Crampton v The Queen, and I just point out that in the appellant’s reply at paragraph 4 he says:

This Court should exercise its power to cure a substantial and grave injustice.

The words lifted from Crampton v The Queen.  We would rely upon that as a concession that, in fact, before this ground could be relied upon, as an individual separate ground, that conclusion would have to be arrived at.

On the assumption that the Court will entertain the ground, we have also argued the substance of the ground.  Could I briefly just go to paragraph 5.3 of our written submissions.  We refer there to section 79, about a third of the way down, and I merely note that yesterday there was a concession in relation to section 80 given to Justice Callinan and to the Court.  The concession was to this effect, that section 80 does not prevent an expert giving evidence on or of a fact in issue.  That was as I took it down yesterday.  In that regard, there is no need now to take the Court to the ALRC Reports, Nos  26 and 38, in which there is a discussion of the purpose of the legislation, in particular section 80, but we have provided page references and paragraph references to that material in our supplementary list of authorities.

The only other aspect of this particular ground that I wanted to particularly mention was the appellant relies upon the American authority of Daubert.  That case was specifically considered and spoken about in HG v The Queen.  Your Honour the Chief Justice indicated that it was not necessary to go to that case at that time.  Your Honour Justice Gaudron indicated that section 79 did not appear to change the common law and the common law is not in Australia Daubert.

If you go to ground 5, we argue ground 5 at paragraphs 6.1 and 6.2 of our written submissions.  We oppose leave being granted to add this ground and have argued that at paragraph 6.1.  I note the further concession by the appellant that rule 4 of the Criminal Appeal Rules would have applied to this matter had it been raised in the court below.  During the course of argument, counsel was asked to set out what he considered was the appropriate direction that he now sought.  This was following questions by your Honour Justice Gaudron.  I note that your Honour Justice Gaudron was of the view that perhaps a slightly different direction was required than that which was suggested by the appellant and I did not take a full note of what your Honour said, but the directions your Honour was referring to, in our submission, can be found in the summing up.  If I could give your Honours reference to that.  It is in volume 4 page 749 line 32 to 46.  The direction is:

Furthermore, in assessing the evidence of those experts whom you find to be credible and impartial, it is proper for you to bear in mind that you lack the scientific knowledge and experience of those experts and, insofar as their opinions depend on scientific medical or physiological knowledge, as opposed to the common experience of people in general such as yourselves or on commonsense, it would not be proper to find an issue against the accused by accepting one body of expert evidence and rejecting another unless there was good reason for doing so.

But it may not have been exactly the form of the direction that your Honour had in mind, but it was to similar effect, in our submission.

GAUDRON J:   It is to similar effect to the direction that Mr Odgers said ‑ ‑ ‑

MR BLACKMORE:   He referred to the word “dangerous” and he does not refer to the word “dangerous”, but with respect, there is no authority that that word is required.

GLEESON CJ:   No, but defence counsel like that word “danger”.

MR BLACKMORE:   They very much like that word “dangerous”, yes.

GLEESON CJ:   It is a good word to have ringing in the ears of the jury.

MR BLACKMORE:   “Dangerous to convict”, yes, your Honour.  As to the contention made in relation to Chamberlain’s Case, which was a matter that Justice Callinan took up to some extent yesterday, in our submission, Chamberlain’s Case does not require the judge to merely and only direct with respect to the first two matters that his Honour summed up – again, this is at page 749 and 750.  Your Honours will recall that the appellant submits that at the bottom of page 749 his Honour puts one matter to the jury and then at the top of page 750 puts another matter to the jury, but those are exclusively the only matters that should be put and that he should have told the jury that.

We submit to the contrary, that that is a misunderstanding with respect to what is said in Chamberlain’s Case and even in the joint judgment of the Chief Justice in Mason.  I simply give this reference.  At the top of page 559, it is at the very page after the discussion in relation to Justice Jenkinson’s decision.  Perhaps if I just go back to page 558 and read:

We agree with Jenkinson J.  The most that could be said against Professors Boettcher and Nairn was that their work was done in the comparative seclusion of academic surroundings, so that they lacked the day-to-day experience of the forensic scientists called for the Crown, and that they exhibited “an unbecoming arrogance” . . . There was no challenge to their knowledge or their honesty or impartiality.

The next sentence is important, in our submission:

The criticisms they advanced appear to be rational and compelling.

The word “compelling” there is important, in our submission.  It requires an assessment of the evidence.  Whilst it could be accepted and might be accepted that most experts could give a rational explanation, it is not necessarily the case that it will be a compelling explanation.  In order to decide whether it will be a compelling explanation, it requires consideration by the tribunal of fact, whoever that may be – in this case a jury – of relevant matters in relation to the way in which they gave their evidence and the matters that they talked about.  Those are the very matters that his Honour addressed them on in the next two points at page 750 of the appeal books.

The other aspect about that is Chamberlain’s Case, I think it was your Honour Justice Gaudron said, was a case in relation to an unreasonable verdict.  It was an appellant consideration.  They were not considering at that point what directions to give to the jury in relation to expert evidence.  Finally, the other aspect that must be borne in mind in relation to Chamberlain – and again this is something that your Honour Justice Gaudron pointed to very clearly, I thought – was that the question in Chamberlain was a question about the primary fact.

GAUDRON J:   Primary scientific facts.

MR BLACKMORE:   Yes.  It was whether or not there was foetal blood, something very difficult for a jury to have any commonsense approach about.  Either it is or it is not foetal blood.  Here it was a different nature.  The evidence was in relation to things that were already accepted.  The petechial haemorrhages, for example, were clear.  Everybody acknowledge Dr Bradhurst found those haemorrhages.  The question was how they were caused and the way in which they were caused was various.  Everybody accepted that they could be caused in different ways, scientifically, but it was the way in which they could have been caused in this particular case which did in fact lead, or could lead the jury into a situation where they could consider, in a commonsense sort of way, the scenario that was being put forward.

On the one hand, a scenario that involved compressing the back of Snezana, while her throat was cut and the other, that she simply inhaled this blood and that it somehow then became reflected in these haemorrhages.  Those are things that the jury could consider.  They were not of such a scientific nature as, for example, whether or not something is or is not blood.  Subject to simply relying again on the balance of our submissions in relation to that ground, those are our submissions in relation to ground 2.

If I can then move to ground 3 which is a ground in relation to lies.  This ground is dealt with at paragraph 7 and following of our submissions.  Again, I will not take the Court through - just simply reading them.  In essence, we argue that the lie was material because it related to the appellant’s opportunity.  Obviously, his opportunity to commit the offence, but also his opportunity to explain why it was that he as the father of children in a room next door heard nothing when on the objective evidence a healthy six year old child defended herself against a brutal attack made on her.

That is an extraordinary fact.  An extraordinary fact, in any circumstance, whether it is suicide or murder, that he is next door and hears nothing.  Now, it could be said, “Well, his parents heard nothing”.  They are more remote in the house and it must be said that they were his parents.  They were not her parents.  Two matters need to be noted, in our submission, in respect of this.  The proof of the lie was not limited in the way in which it has been suggested by the appellant that at 8.30 pm he was out of the room.  The proof of the lie was simply, as more compellingly proved, in the sheer unlikelihood of the claim.

GAUDRON J:   Although in the record of interview, which is a little bit unclear, he does not say he was asleep all the time, he says was drowsing, he was in the room, he did not leave the room.

MR BLACKMORE:   No, I acknowledge what your Honour says and he said the same thing in evidence and I want to come to that because that is actually very indicative of his consciousness of guilt in respect to this matter because he says, in addition to that, he was asleep; he was in a deep sleep, a sleep that he had never had before.  That was a crucial matter for him.  This was, as your Honour Justice Gummow I think pointed out, in the room next door.  There was evidence that this was a house that was a brick veneer house; part of the wall was removed; it was a plasterboard wall.  This was a dividing wall in which he had his children next door murdered and one of them, at least, defended herself significantly against this murder.

It was vital for him to be able to explain how it is he heard nothing and, yet, he had never slept like this before.  It was a very important matter.  It was not, in our submission, such that it required, though, any more direction than simply to say it was another part of a circumstantial case.

In that respect, the appellant relies upon the decision of Laz in Victoria.  We simply submit that in this case the lie was not an indispensable link in the chain of reasoning towards guilt.  But, importantly, there was - and this is really the second part of the submission, importantly, there was no realistic probability or possibility that the jury would have treated it as such.  There was a very substantial circumstantial case here in addition to the lie.  This was not a case where the Crown perhaps had the murder scenario, if I can use that term, and the lie.  It had a lot of other features in the case to rely upon.

It was the cumulative effect of all of those features, including the lie, a significant matter, but not the only matter by any means.  There was no realistic possibility that the jury would simply have treated that lie as the only confession in the case, for example, and, therefore, we submit that there was no requirement in this case for an additional direction.  I just note - this is in the record of interview from page 1038.  Your Honour Justice Gaudron raised this.  He says the dozing was initially at the beginning of the time that he was in the room.

GAUDRON J:   Page 1038?

MR BLACKMORE:   Page 1038 in volume No 5 at question 249 and 250.

HAYNE J:   You have it, yes, 249, “I wasn’t really sleeping. . .”.

MR BLACKMORE:   Those are the submissions that we seek to make in addition to our written submissions in relation to that ground.  If I can go to ‑ ‑ ‑

HAYNE J:   What is the reference to the evidence he gave at trial?

MR BLACKMORE:   Right, I will find that, your Honour.

HAYNE J:   If you simply give me a reference ‑ ‑ ‑

MR BLACKMORE:   Yes, I will.  I will find that, certainly, your Honour, a reference to that.  In relation to whether or not this was an unreasonable verdict, we submit that the key to this case is to be found in the circumstantial evidence itself.  We have, in the written submissions, again, taken the Court to a very large number of particular circumstances that were relied upon in this case.

HAYNE J:   If, for a moment, we segment this case a little and we put aside what you describe as the circumstantial evidence and focus only on the conflict between the pathologists, are you able to identify for me, in summary form, the features which you say, in the pathological evidence, lead to a conclusion that suicide has been excluded as a reasonable hypothesis?

MR BLACKMORE:   If the answer is comprehensively right now, not exactly, but I can certainly point your Honour to matters that the jury could have accepted and would have, in our submission, accepted, to that effect and it appears at least in the evidence of Dr Oettle and I will take your Honour to precise parts of that.

HAYNE J:   What I would be assisted by is a summary - if you cannot do it on your feet, then subject to what other members of the Court may wish, I would be glad of a note about it ‑ ‑ ‑

MR BLACKMORE:   I would be happy to put in a further submission on that.

HAYNE J:   Can I tell you what it seems to me to come down to and I need to be corrected on this?

MR BLACKMORE:   Certainly.

HAYNE J:   I give it so that counsel replying may deal with it.  It seems to me to turn on two things:  one, body position and, two, blood stains and patterns.  How you then deal with it under that may be a matter for debate but, one, there was evidence that Snezana would not have moved after the first wounds.  That evidence was contested.  Two, there was evidence that the blood identified as Snezana’s blood was found in positions not consistent with her body position on discovery.  Three, there was the question of the children’s blood on the back of Snezana.  Four, there was the question of the bed and its movement.  Five, there was evidence given by the pathologists about the kind of wounds sustained and, hesitation wounds, the whole subject of wounds.  Now, it seems to me, those, at least, are included in the way in which you put it, but I would be assisted by having a note about it.

MR BLACKMORE:   I certainly can do that.  Can I just also say though, your Honour, the case cannot be looked at totally in a scientific way.  The jury were entitled to also look at the way in which the evidence was given by the experts that were relied upon by the appellant and, in that respect, it is relevant to look at, for example, the evidence of Dr Zillman, because the jury may simply have found it unacceptable ‑ ‑ ‑

HAYNE J:   But you have to be able to construct, do you not, from the evidence, a collection of pieces of evidence which, if accepted by the jury, taken together, excluded suicide as a reasonable hypothesis?

MR BLACKMORE:   Yes, quite clearly.

HAYNE J:   And if you cannot do that, you are out.

MR BLACKMORE:   And there is such evidence.  There is some of that material in our written submissions, but I take your Honour’s point and they will be addressed individually and comprehensively.

GAUDRON J:   And perhaps if you would not mind adding to that note any directions that were given to the jury with respect to any of those matters that might be taken to be commonsense matters, that is to say, well ‑ ‑ ‑

MR BLACKMORE:   When they could and when they could not apply commonsense to the ‑ ‑ ‑

GAUDRON J:   Yes.  Well, things like, if, for example, you rely on the displacement of the night clothes ‑ ‑ ‑

CALLINAN J:   The hair clip and ‑ ‑ ‑

GAUDRON J:   ‑ ‑ ‑ the hair clip and things of that nature, I would like to have a note of the directions that were given to the jury with respect to the level of satisfaction they must have about any of those matters ‑ ‑ ‑

CALLINAN J:   Damage to the necklace, was another one.

GAUDRON J:   ‑ ‑ ‑ before accepting the opinion of the expert whose evidence adverted to those matters.

MR BLACKMORE:   I can certainly find the passages.  Whether or not they will say that – yes, I will certainly find the passages that relate to that.

CALLINAN J:   I think two of them that we have mentioned are probably the only ones, apart from so-called scene tranquillity, that were referred to by Mr Odgers.  Are there any others?

MR BLACKMORE:   Well, arguably, yes, in a sense – and this is what I was saying to Justice Hayne – you have to consider their medical evidence in its whole.  The evidence of ‑ ‑ ‑

CALLINAN J:   No, but I mean matters of the kind that Justice Gaudron referred you to, apparently exclusively non-expert matters.

MR BLACKMORE:    I think this is one.  It is a bit of a difficult line to cut, in this sense:  is it an expert opinion for a doctor to say that a baby could be lifted up over the shoulders and there have her throat cut?  Is that a matter of expert opinion?

HAYNE J:   There was a lot of debate in the evidence about whether you could do it without inflicting wounds on yourself or achieving the wound that was the fatal wound of the child.

MR BLACKMORE:   Arguably it was not the difficulty with analysing this question, in terms of admissibility, is that the objections were not taken to the qualifications of the experts.

CALLINAN J:   Look, probably there is no need to take time on it, but there are effectively two categories.  One category, matters that are exclusively non-expert but which were adduced from the experts; and another category, which, perhaps arguably, might be wholly or in part matters of expertise, and you know what they are; they are the ones that are questioned.  So if we could get two categories.

MR BLACKMORE:   There is a further comment in relation to that, that part of the evidence was simply a comment on matters that were not expert matters.  For example, the hairclip was something that was observed by others and evidence was given about it by others.  Comment was invited from the experts in relation to that, and the question really is:  were they entitled to use those matters? 

CALLINAN J:   Well, take the hairclip.  I think the appellant’s counsel cross‑examined on that at page 145.  I rather suspect that he did that in anticipation of the evidence that he expected that Dr Oettle to give, because Dr Oettle did give evidence about that.  But I rather suspect that it was in anticipatory refutation, as it were, of that that the appellant’s counsel cross‑examined Dr Bradhurst.  But having done that, he seemed to introduce the topic, chose to do it that way rather than, for example, waiting and objecting to any evidence that Dr Oettle might give on that.  And those are the sorts of matters that we need to know about, I think.  Also, who introduced the topics and at what place. 

MR BLACKMORE:   It is starting to get a very long document, that is all. 

CALLINAN J:   No, it is not a terribly long document.  It just means that you will have to have another look at the evidence.  But some of the passages are already identified by Mr Odgers. 

MR BLACKMORE:   Yes.  The passages are readily identifiable, it is just they would take a long time to go through individually in Court. 

CALLINAN J:   Well, not now, but if you give us a document. 

MR BLACKMORE:   That will certainly be done.  There is another matter that probably relates to ground 2 more than anything, but it is worth considering.  That is:  why were the experts not challenged in relation to their expertise?  This seems to be a matter that is relied upon by the appellant, that their evidence was not admissible.

But there are, in fact, reasonable grounds for saying that a very experienced counsel in this case was aware of matters that the court was not aware of and the jury were not going to be made aware of.  For example, they would have had the reports of the doctors themselves.  They would not have been relying upon some statement or simply what was led in evidence‑in‑chief.  And it may well have been that if you start cross‑examining one of the experts in relation to his expertise – let us take, for example, Professor Mason, who was one of the world’s leading experts in relation to forensic pathology.  If you start cross-examining him in relation to his qualifications, you simply invite the same sort of cross‑examination in relation to Dr Zillman, who, as it turns out, had two years experience in that similar role.  It is misleading at times to think that counsel ‑ ‑ ‑

GAUDRON J:   I do not think either their experience or qualifications was in issue.

MR BLACKMORE:   But in a sense ‑ ‑ ‑

GAUDRON J:   What is now in issue is not that either.  It really is about the extent to which you can say the evidence is substantially based on a field of generally accepted knowledge or something of that order. 

MR BLACKMORE:   Perhaps I was not making my point very clear.  My point is that there was no evidence on that.

GAUDRON J:   No evidence on what? 

MR BLACKMORE:   On what the extent of their knowledge was.  People can be qualified by both their scientific knowledge ‑ ‑ ‑

GAUDRON J:   Let me ask you this – and if there is, I would be very grateful to be put in touch with it, not for the purposes of this case but for my own personal purposes.  Is there a standard of generally accepted scientific knowledge on hairclips?  There is not. 

aMR BLACKMORE:   There is not.  That is an easy question to answer.  The question though perhaps could be turned around in this way.  Is it accepted that somebody who has experience of visiting hundreds, if not thousands, of death scenes is able to use the things that he sees at those scenes in reaching his conclusion in relation to death?  If one of those things is the displacement of a hairclip, which he says may be consistent with a defence situation, is that relevant?

GAUDRON J:   I do not think they said simply “may be consistent with”, did they, in relation to the hairclip?

MR BLACKMORE:   Again, Dr Oettle’s evidence was primarily based upon the quantity of blood that was at the scene at a particular site which was inconsistent with where Snezana’s body – that is the deceased, the appellant’s wife – was found.  I will come to that.  There is an additional piece of evidence which I simply want to note in relation to that.  Another aspect though that ought to be borne in mind in this case is that the material that was before the jury was extensive.  The trial went for nearly eight weeks.  The jury had the benefit of seeing all of the experts give their evidence.  I will not belabour this; it is fairly obvious.  But in addition to that and what may not be immediately obvious is they had projected photographs in court to which the experts were making marks.  They were pointing towards parts of the photographs and saying, “There, there, there, for example”.  Reading the transcript of itself is not going to be sufficient to know exactly what they were saying.  The jury had the benefit of all of that extra explanation.

There are some specific matters that were raised by the appellant and I will limit those matters to simply matters that now will not be touched by this note.  At page 342 it was suggested there is a reference to how far the bed was out from the wall.  It was said by the appellant that at about lines 5 to 10:

Some of the blood appeared to be projected directly onto the wall.  The bed was not in its usual position, having been moved approximately four to six and a half centimetres away from the unit.

The unit there being described is not the wall.  The unit there being described is the unit next to the bed.

GAUDRON J:   The bedside table, as it were.

MR BLACKMORE:   Yes.  In fact, further down on the same page at line 20:

Q.  You have the photographs of the bed in situ.  Are you able to express any opinion about that?
A.  Some of those stains could not have got on to the wall if the bed was pressed up against it or pressed up against the skirting board.  It would have to be some centimetres away but, because I haven’t actually reconstructed the scene itself, I cannot say how many centimetres away.

So in fact as to how far it was out from the wall, he never reconstructed the scene.  In addition to that, there are photographs which show the extent to which blood moved along the wall and in particular how high it went up the wall.  There are photographs which have measurements on them in relation to that and they clearly show that the bed must have been not in the position up against the wall.

The point was a very significant one, even in the mind of Justice Kirby.  I do not say that in any pejorative sense, but he recognised that this question in relation to the bed was a very important one.  In his judgment at volume 5 at the bottom of page 1179, he says this at paragraph 339:

It seems to me, however, that it is highly improbable that Snezana would have bothered to return the bed to its former location.

With all due respect to the demonstration that was given yesterday in Court, there is no evidence that that was a capable possibility, that simply pushing on the bed in a certain angle would return it to its position.  It is highly speculative, in our submission, to attempt to reconstruct it in that way.  Anyway, the next paragraph in particular is important:

The evidence, therefore, unless otherwise explained, strongly suggested the presence of another person within the bedroom, who restored the bed to its former position.  It was this evidence that Professor Mason found compelling.

In our submission, it was extremely compelling, along with the movement of the bodies.  Justice Kirby then hypothesised that maybe somebody else moved the bed.  We have addressed this in our written submissions in detail.  There was evidence in relation to that very issue.  It was put to the witnesses, “Did you move the bed?” and the answer was given, “Definitely no”.  Therefore, in those circumstances, it was not the position where there was no evidence about which you could perhaps infer something.  There was direct evidence on the point and the point was and the evidence was the bed was not moved by anybody after the door was broken in.

In relation to the lock, we accept – that is our understanding as well, that the lock could be locked from outside by holding the door handle in a certain position.  That evidence will be need to obtained and put before the Court.  That will be done.  In relation to the evidence of Dr Oettle – and this is perhaps something that will be touched upon in the further submission – but it should be noted also, because it was raised by your Honours, that the trial judge, in fact, himself raised with Dr Oettle the scenario put forward by Dr Bradhurst – and it was not at the point that was suggested by the appellant or was not first at that point – at page 285 of the appeal book, volume 2, at line 30 on that page his Honour says:

In other words, are you saying that, having lost that amount of blood, at the spot shown in the photographs near the cabinet, irrespective of whether she had at that stage received the cut that cut into the spinal column, because of the loss of blood she would not have been able to move to the spot where she was found?
A.  Yes.

So, the scenario from Dr Oettle was a very clear one.  It was, in our submission, a readily understandable one, given the quantity of blood and the descriptions in relation to the blood and it may be that ‑ ‑ ‑

GAUDRON J:   And there was contrary expert opinion to that effect?

MR BLACKMORE:   There were other opinions to a different effect.

GAUDRON J:   That brings you, does it not, right within the problem posed by Chamberlain?

MR BLACKMORE:   We would submit no, because this was not of that order of scientific knowledge.  The jury had detailed, uncontested evidence about the quantity of blood.

GAUDRON J:   Yes.  Well, was the quantity of blood disputed between experts?

MR BLACKMORE:   No, not the quantity.  The quality of it – and my friends addressed on this – was hypothesised, although the people that actually tested the blood said, “Well, when there was a mixture we noticed the mixture”.  I will need to perhaps go to this evidence as well in considering this further submission, but ‑ ‑ ‑

GAUDRON J:   What was it then, other than their own expertise, that led the experts to the differ upon whether or not the deceased could have moved after the first cut or series of cuts to her throat, that is, before severing of the spinal column?

MR BLACKMORE:   It was only the quantity of blood, in a sense, that Dr Oettle relies upon and ‑ ‑ ‑

GAUDRON J:   But was there anything else – maybe I am not making myself clear – did the experts then differ about the quantity of blood that had been lost?

MR BLACKMORE:   No, I am sorry, perhaps I have missed your Honour’s – the experts differed as to whether or not she could have moved ‑ ‑ ‑

GAUDRON J:   Yes, but were there any primary facts leading to that conclusion that were in dispute between the experts?

MR BLACKMORE:   No, no, your Honour, there was not, and ‑ ‑ ‑

GAUDRON J:   Then do we not come exactly to the problem adverted to in Chamberlain?  How were the jury to be instructed at least as to how they should resolve that difference?

MR BLACKMORE:   They were entitled, even in Chamberlain’s Case, to decide whether that evidence was compelling or not and ‑ ‑ ‑

GAUDRON J:   But there is nothing other than the mere expression of different opinions.

MR BLACKMORE:   But it is the way they were expressed and how they were expressed.  These things were not expressed simply as one-off statements, they were put together ‑ ‑ ‑

GAUDRON J:   No, but they were conflicting opinions.  There were conflicting opinions as to whether or not the deceased was capable of movement after one series of wounds, but before the spinal column was severed.

MR BLACKMORE:   I think that is right, yes.

GAUDRON J:   Those conflicting opinions did not proceed from different primary facts in issue between the experts.

MR BLACKMORE:   No, except in the very limited extent that I have said that there was some suggestion that there may have been a mixture of blood, but otherwise no.  My junior reminds me there was no quantification in the sense of litres of blood.  There was a quantification only in terms of there was a great deal of blood still pooled under the carpet.  That is not a direct answer to what your Honour has put though.

GAUDRON J:   Now, would I be correct in thinking that the only direction with respect to how the jury should then resolve a pure conflict of opinion evidence was the direction that it would not be proper to resolve it one way rather than the other, if it led to the conviction of the accused, the direction you took me to earlier?

MR BLACKMORE:   Yes, the one I pointed your Honour to, that is the only one of that nature that exists.

HAYNE J:   Which makes it very important that in this note that you prepare we understand precisely what it is that you say excluded the reasonable hypothesis of suicide.

MR BLACKMORE:   I appreciate that.

HAYNE J:   If it is a cumulation of factors, by all means, but that means lose one of them and the argument fails.

MR BLACKMORE:   Well, it does not necessarily mean that, with respect, but ‑ ‑ ‑

HAYNE J:   That is why I want to understand from what you put in whether you are saying that, “I need to have all of these steps in order to eliminate suicide”.

MR BLACKMORE:   I understand that, your Honour.  The other matter that was suggested just latterly was that the appellant, in answering the police, never suggested suicide on behalf of Snezana.  Just as an observation, with respect, that would be somewhat unrealistic.  It was not even suggested that he ever saw the scene of the bodies themselves.  I mean, it is unlikely in those circumstances, unless he was professing some knowledge about the scene itself, that he would have suggested any method of death and any answer to that effect ‑ ‑ ‑

GAUDRON J:   He did not have to, did he?

MR BLACKMORE:   He did not have to.

GAUDRON J:   And it surely does not matter that he did not.

MR BLACKMORE:   Well, it is suggested that it does.

GAUDRON J:   Suggested by whom?

MR BLACKMORE:   The appellant.  That was, in effect, his submission, that the fact that he did not volunteer the suggestion is something that can be taken in his favour.  Well, with respect, it is equally consistent with, had he mentioned it, being taken very much in his disfavour.  In any case, your Honours, we have now, I hope, set out in the written submissions the matters of circumstantial evidence that we rely upon.  In doing so, we have addressed each of the matters that was raised by Justice Kirby in relation to the circumstantial evidence and I do not need to take your Honours individually to each matter.  We have discussed the medical pathology to an extent in our submissions at paragraphs 8.11 and following but I will add to that in relation to the matters asked of me by your Honours.

Finally, we have addressed what was said to be the defence scenario in relation to the crime at paragraph 8.25.  I do not seek to add to those submissions.  In answer to your Honour Justice Hayne’s question in relation to his evidence of sleeping, that is to be found at appeal book - I think it is volume 3, page 549 at line 21.  Thank you, your Honours.

GLEESON CJ:   Thank you, Mr Blackmore.  Yes, Mr Haesler.

MR HAESLER:   Very briefly, it is the appellant’s case that the medical evidence, pathology evidence, taken alone could not exclude suicide.  In our submissions we have identified a number of points, (a) to (l), which address - and we are happy to address anything the Crown brought on - that point in detail with references to the appeal books.

GLEESON CJ:   You will have an opportunity to respond within seven day to the written material that the Crown relies upon.

MR HAESLER:   Thank you, your Honour.  It is there at least set out.  We put in a reasonably - it can always be better - succinct way the matters that we say indicate that the Crown cannot exclude suicide.  One of those matters, of course, is Dr Zillman’s blood hypothesis.  If that is the case, that she took time to die, then that is one factor which would be powerfully in favour of suicide, although it may not be conclusive of it.

There is some confusion in the evidence as to what the first cut was and the second cut was.  It is impossible to reconstruct and no one says these were the first or second cuts; they merely hypothesise on it.  But it is obvious that if the first cut severed the spinal cord, then there could not have been movement afterwards, but a number of hypotheses of the various doctors proceed on that basis.  If it was the last cut, of course, then movement could have been possible, we say, prior to it.  It is not just hairclips, Justice Gaudron, it is also buttons on nightwear.  It occupied a lot of time of some of the experts as to whether a button was missing and whether that was indicative of struggle.

GAUDRON J:   Were loose buttons found?

MR HAESLER:   No, just the odd tear, but that was said to be indicative that there had been a struggle and then a cleaning up of the missing – I did not address those in the written submissions because they assumed a degree of triviality that we did not want to bother the Court with.  In relation to the movement of the bed, witnesses had attended the scene, including ambulance officers, who had checked for vital signs.  They said they did not move the bed, but they were on the bed, checking for vital signs, in relation to, obviously, doing their job.  So there was the capacity for doing it, but that is the highest the defence can put.

CALLINAN J:   Just before you sit down.  I myself would be inclined to accept as correct a statement or a definition of expert evidence what appears in paragraph 37.01 of Phipson on Evidence 15th Edition, at page 917.  So that if anybody wants to make any submissions about that in writing, which is a statement of what it is at common law, but I do not think it is any different under the Evidence Act.

MR HAESLER:   The respondent made a point about looking at photographs.  We have tried to identify the key photographs which were referred to by the witnesses, in particular a photograph which is at 36 and 37, and you can see a trickle of blood that Dr Zillman identifies as running down over the dried blood previously deposited.  Dr Zillman – and the passages are set out in our reply – indicated when he first gave evidence, and was qualified, that he had been following the trial, that he had only the day before been to Glebe and that he had been, in essence, building his opinion based upon the evidence that had been given in the trial.  No evidence in reply was called by the Crown in regard to that point.

HAYNE J:   It was a point that emerged only in the course of Zillman’s evidence; it had not been put to anyone before?

MR HAESLER:   No, your Honour.

GAUDRON J:   And the significance of that was?

MR HAESLER:   The significance is, your Honour, that if clearly Snezana’s blood had been laid down and had time to dry – 30 seconds to three minutes were the estimates given – and then arterial blood was laid down on top of that and dribbled down into the dried blood, then that was powerful evidence to suggest that there had been a second incident or a second wound to the right side, or the side of her neck, producing an arterial spurt, and Mr Raymond indicated there were arterial spurts.  If she is dead, her heart would not have been beating and her arteries would not have been projecting blood onto the – and if Dr Oettle is correct, then she would have been dead very quickly as a result of all of the ferocious wounds being inflicted at the same time.

If, however, she was capable of laying down an arterial spurt which went over the dried blood, her own dried blood, then she was alive for some period of time.  And if she was alive for some period of time, then she had the capacity to do things.  We cannot say she did it, but we say she had the capacity, and in that regard the Medical Journal article is instructive, because it does give another - independently verified examples of people

who are capable of quite ferocious movement, having inflicted serious wounds to themselves. 

GAUDRON J:   Was there any – perhaps this could be a note.  So far as concerns the hairclip, was there anything to suggest that that might have been disturbed by any of the children? 

MR HAESLER:   Dr Zillman gave some evidence in hypothetical terms that it may have been displaced during the struggle with Zaklina, as the bed may have been ‑ ‑ ‑

GAUDRON J:   With the cleaner? 

MR HAESLER:   Zaklina. 

GAUDRON J:   With Zaklina, yes. 

MR HAESLER:   Her 6-year-old daughter.  The only direction I could find quickly was at page 871 – no, that is the buttons.  There are summaries of the evidence; he points out the buttons are missing – this is Oettle - he submits the scene is consistent with as a result of a surprise attack.  So it was used, certainly, in the summary of the evidence by Justice Dunford, what we say were non-medical factors.  But obviously we will find that material in response to the Crown’s searches. 

GLEESON CJ:   Yes, thank you. 

MR HAESLER:   Your Honour, it was a joint appeal book; we did not put every page of transcript in – perhaps we should have, but we did put, by consent of both parties, the summary as an aide-memoire, that is the Part A particulars which are prepared for the Court of Criminal Appeal by the Crown.  It is their summary but it at least gives the overview of all of the evidence.  Justice Dunford was also fairly comprehensive in his summaries of the evidence of the civilian witnesses and what they said.  So you can get a fairly good overview of the perhaps non-controversial aspects or bits which are not in dispute as to what evidence was actually given from those documents and Justice Dunford’s summary.  Thank you. 

GLEESON CJ:   Thank you, Mr Haesler.  We will reserve our decision in this matter.  We will adjourn for a short time to reconstitute for the next case. 

AT 11.45 AM THE MATTER WAS ADJOURNED