Velevski v The Queen
[2001] HCATrans 155
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 WEDNESDAY, 30 MAY 2001, AT 10.16 AM
Copyright in the High Court of Australia
MR S.J. ODGERS, SC: May it please the Court, I appear for the appellant with my learned friend, MR A.C. HAESLER. (instructed by Murphy’s Lawyers Inc)
MR A.M. BLACKMORE: May it please the Court, I appear with my learned friend, MR M.C. MARIEN, for the respondent. (instructed by S.E. O’Connor, Director of Public Prosecutions (New South Wales))
GLEESON CJ: Yes, Mr Odgers.
MR ODGERS: Your Honours, the appellant has filed written submissions, a reply, a chronology, some additional transcript, which I trust your Honours have. In addition, in discussions with the respondent, to assist your Honours, we thought it may be helpful to provide a document which was the Crown’s submissions, Part A in the Court of Criminal Appeal, which summarised the evidence. It is a 76‑page document. I have provided it to your Honours if that is to be of some assistance in looking at the totality of the evidence. Of course, only parts of the transcript have been put in the appeal books. It has been annotated on the side of the document with the relevant appeal book numbers where that part of the transcript is in the appeal books.
In addition, your Honours, in the submissions, we flagged that we would be making an application for leave to add an additional ground, that is, a ground which we numbered 5 in the written submissions, but in an amended notice of appeal which we have prepared, it is paragraph (e). If I can hand up to your Honours – and I apologise, I only have the original copy – an amended notice of appeal with the flagged additional ground of appeal.
GLEESON CJ: We can hear what you have to say in argument about this and we will hear what Mr Blackmore has to say and we will deal with that in due course.
MR ODGERS: Thank you, your Honour. I will proceed on that basis. If I can follow the order that was followed in the written submissions and begin with ground 2. The first point I should make is that in respect of the question of objection being taken at the trial, there were two relevant objections which have been referred to in the written submissions, but if I could take your Honours to this quickly, and I will deal with the issue of admissibility generally. The objections, firstly, in appeal book 2 at page 267.
Of course, your Honours appreciate that the global attack that is made by the appellant is that substantial parts of the opinions expressed by the experts were inadmissible. There was no global objection taken by defence counsel, and that is a matter with which I will have to deal. There were two specific objections. The first is at 267, and your Honours will see that Dr Oettle was giving evidence and, in the paragraph at the top of the page, he was referring to the presence of blood smears on the left lower leg of ‑ ‑ ‑
GLEESON CJ: Just before you come to that.
MR ODGERS: Yes, your Honour.
GLEESON CJ: Was an objection given to his evidence on the bottom of the preceding page, at 266, at lines 45 and 50?
MR ODGERS: No, your Honour.
GLEESON CJ: Well, then the objection was to him giving reasons for that opinion, was it?
MR ODGERS: The objection appears to be, as I interpret it, even more specific than that. It was to reliance on the blood smears on the leg and his expressions of opinion about those blood smears. If I could step back for a moment, with respect to all the experts, except, of course, Dr Cooke, the fact of the matter was that they talked in terms of probability. Probability is something is likely, and Dr Oettle perhaps went the furthest ‑ ‑ ‑
GUMMOW J: It is not talking in terms of probability at 266.
MR ODGERS: No, your Honour, that is true on the face of it. However, in my submission, a complete reading of what Dr Oettle said reveals that he was relying to a large extent on a concatenation of probabilities which led him to a particular view which he expressed very forcefully, but, in my submission, he really was, in substance, expressing a view as to probabilities.
HAYNE J: Was this not the forensic choice that was then before trial counsel? Did trial counsel choose to let the witness go on to express an opinion in the belief, expectation or hope that the cross‑examination and address could then fasten on the qualifications inserted by the witness, and why should we now retry the case on a wholly new basis, different from that chosen by trial counsel?
MR ODGERS: The ultimate submission we make is that very important evidence was inadmissible; that it went to the ultimate issue in the trial; that, notwithstanding the failure of defence counsel to make a global objection, that it caused a substantial miscarriage of justice in the particular circumstances of this case. I accept the burden that we bear is heavy in the circumstances where no global objection was taken. I can only say two particular things about that, well, three. I am taking your Honours to specific objections and we rely on those, obviously.
HAYNE J: But the expression “global objection” may mask much more than it reveals. What do you say the global objection would constitute? Objection to what?
MR ODGERS: Three objections. Firstly, an objection to the prosecution experts, forensic pathologists, saying that it was more likely that the wounds on Snezana Velevski were homicidal rather than suicidal. I have used the term “more likely” and that is designed to incorporate various formulations that each of them adopted in that regard. Secondly, that - I think this may be an aspect of that general objection that the expression of opinion on the ultimate issue - I will withdraw that. Perhaps it may well be that this is more an aspect of the reasoning why it was inadmissible but, certainly, the opinion, we say, was based on matters outside expertise. But as I see the argument, that really goes to the proposition that the ultimate opinion was inadmissible.
Perhaps I would go one step further, that specific statements of opinion relating to particular phenomena, for example, whether or not, in this case, blood smears on the leg were likely or unlikely to have been made by the deceased. In my submission, opinions of that sort, in addition, were inadmissible.
GLEESON CJ: I cannot helping whether by “global objection” you mean tactical decision as to how the case would be fought.
MR ODGERS: I appreciate the problem that the appellant faces is that it – in the absence of any evidence, defence counsel did not object to the ultimate opinions that were expressed by the forensic pathologist. He did make some objections to the more limited statements of probability - I have just given your Honours one example - but that is true, he did not, and the two answers that I was going to advance, or rely on – well, the first answer is I say a substantial miscarriage of justice resulted. The second is that, as we have put in the reply and it is perhaps put too strongly, that defence counsel was put in a position – I do not suggest deliberately – whereby the Crown adduced evidence from Dr Bradhurst of an opinion that it was more likely that the wounds were suicidal. In our submission, that evidence was inadmissible.
The Crown, we say, adduced it. Well, it plainly adduced the evidence. It then put the defence in a remarkably difficult forensic position.
The defence was faced by the inevitability that if there was objection taken to the other experts expressing the opinions about which we have complained that it would have been inevitable that Dr Bradhurst’s opinion would have been excluded. Now, the answer is that defence counsel made that choice, and I cannot disagree with that, but we say that it is a relevant consideration in terms of this Court’s intervention that it was a choice which was essentially forced upon defence counsel by the way the Crown ran its case.
HAYNE J: Well, can I understand that a little better. Do you say that it would have been open to the prosecution in this case to call an expert and ask the expert whether observed features of the wounds suffered by the victim were consistent or inconsistent with self-infliction?
MR ODGERS: I concede that.
HAYNE J: Would it have been open to the prosecution to ask the expert to explain the basis upon which that opinion of consistency or inconsistency was founded?
MR ODGERS: Yes.
HAYNE J: If that is so, what I at the moment do not understand is, how much further do you say the prosecution went in this case beyond that pair of questions?
MR ODGERS: What I have submitted is that the inference should be drawn that the Crown would have known what the basis of the opinion was and that the Crown would have known that, in substance, it was not so much an opinion as to consistency, but rather an opinion as to likelihood, that the Crown would have known that, in substance, Dr Bradhurst was not saying that the observed phenomena were inconsistent with homicide, but rather that on his global assessment of all the circumstances it was more likely to be suicide and, in those circumstances, the Crown, it may be reasonably inferred, proceeded to adduce that evidence.
GLEESON CJ: This was all presumably evidence that had been led at the committal? I mean, it did not come as a surprise to defence counsel when the answer at the bottom of page 266 was given, I would assume?
MR ODGERS: I am sure that is correct, your Honour, nor would it have been a surprise to defence counsel that the Crown, in calling Dr Bradhurst, would reveal that his opinion was one of likelihood. Can I say that the Crown would have known what Dr Bradhurst was saying and the Crown adduced evidence before he even gave his opinion, which was designed to diminish its reliability by pointing out that the opinion he expressed, at least in the written reports, was given before all the investigations were in.
My submission is that it may be reasonably inferred that the Crown’s strategy was to attack Dr Bradhurst before even adducing evidence of his opinion, reveal that he was talking about likelihood, subsequently intend to make criticisms of his opinion because of the point that had been raised, to call Dr Oettle, knowing that he had initially agreed with Dr Bradhurst, but then when all the investigations came in, had changed his mind, and put the argument to the jury, “Dr Bradhurst had basically stuck himself to a particular position and was unwilling to move. Dr Oettle, when all the evidence was in, had changed his opinion and you should rely on what he says”.
GLEESON CJ: If counsel had wanted to object to the third-last question on page 266, there was a very simple ground of objection, which was that the answer to the second‑last question was not an answer to the question. The answer to the question was, “She bled to death”.
MR ODGERS: Yes, your Honour. One difficulty is that Dr Oettle was the expert who was closest to the proposition of inconsistency with suicide. Although I have submitted that his opinion was in substance, like the others, one of probabilities or likelihoods, on the face of it, one interpretation of what he is saying there on 266 is that the observed phenomena were inconsistent with suicide. It was only subsequently that it became clear, in my respectful submission, that he did not go quite that far. One other point that I should draw to your Honours’ attention – do your Honours have the Evidence Act in totality? If I can take your Honours to section 190(1) of the Evidence Act:
The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of –
and it refers to Parts 3.2 to 3.8 of the Evidence Act. The rules relating to opinion evidence are in Part 3.3, so that is included, so there is a power to the court by order if the parties consent to dispense with the application of the rules relating to expert evidence in respect of particular evidence or generally. Under subsection (2):
In a criminal proceeding, a defendant’s consent is not effective for the purposes of subsection (1) unless:
(a)the defendant has been advised to do so by his or her lawyer, or
(b) the court is satisfied that the defendant understands the consequences of giving the consent.
I am not aware of any authority on this provision. Nevertheless, according to its terms, it does provide that the Court may dispense with the application of the rules relating to expert evidence by order and if the parties consent and where the defendant has been advised to so consent. Now, it is abundantly clear that there was no advertence to this provision in the trial ‑ ‑ ‑
GLEESON CJ: How does this provision operate in the ordinary case of a series of leading questions asked without objection, in circumstances where nobody bothers to insist on rules of evidence because there is no dispute about the matters in question?
MR ODGERS: Your Honour asked me how does it operate. If your Honour is asking me what happens in New South Wales trials ‑ ‑ ‑
GLEESON CJ: The answer is “nothing”.
MR ODGERS: ‑ ‑ ‑ the answer is “nothing”. Section 190 does include within its terms “Division 3, 4 or 5 of Part 2.1” The provisions relating to leading questions appear in Part 2.1, Division 4 and certainly that is specifically referred to in subsection (1).
GLEESON CJ: It would be an extremely rare case where a lawyer consulted his client and got instructions about when he should begin objecting to the prosecuting leading.
MR ODGERS: I understand that, your Honour, and that is the practice. The reason I refer to this provision is that it discloses, in my respectful submission, a concern by the Parliament to ensure that, particularly in criminal proceedings, that there be some advertence to the absence of objection and it may well be appropriate that in some cases, that a judge raise with the parties, and particularly in a criminal proceeding, raise with the defendant or his lawyer whether or not there is a consent to non‑application of particular provisions of the Evidence Act.
In my submission, it will depend on all the circumstances. Some situations one can entirely reasonably, it would seem, adopt an informal approach. But the more important the evidence, the more it relates to the ultimate issues in the case, the more that there is a real issue of admissibility arising, then in my respectful submission, a court should give serious consideration to the formalities of section 190 and the need to ensure that it is not simply assumed that the parties are happy for something to proceed without objection. Having said that, I understand that defence counsel in this case was very experienced and the argument will be put that he made a deliberate decision not to object, but, in my submission, section 190 does provide some guidance as to how the courts should approach that situation.
Just returning then, briefly, to page 267, objection was taken to, it seems, Dr Oettle expressing an opinion that the position and direction of the blood smears on Snezana’s leg were “most unlikely to have been made by the deceased”. I have dealt with this, among other aspects of the opinion evidence, in the written submissions at paragraph 5.9 and it falls within what we say is the general proposition that the experts were impermissibly permitted to rely upon phenomena which required no expertise to assess. Essentially, the ultimate opinion was based on matters outside their area of expertise.
The other objection of a similar type was at page 358 of the appeal book, perhaps more precisely at page 357. At line 10, Professor Mason was being asked to read from his report and his answer was:
I agree with the comment that was made by Dr Bradhurst at page 4 of his report that the scene looks peaceful and looking at it myself, I thought to myself it looked almost too peaceful considering the mayhem that must have occurred irrespective of the precise –
then there was an objection, and over the page your Honours will see submissions that were made by defence counsel about this. It was submitted – and I am paraphrasing – that there was an absence of established expertise to express the opinion, that it was not a scientific opinion nor a pathological opinion and his Honour ruled, on page 358, that Professor Mason was qualified to express that opinion.
GLEESON CJ: Were these reports in evidence?
MR ODGERS: No, your Honour.
GLEESON CJ: They were just being used conveniently or referred to as a matter of convenience?
MR ODGERS: Yes, your Honour. They were being read from by the experts. Your Honour, I should have mentioned it before: it is proposed by the appellant that I will advance argument on grounds 1, 2, 3 and 5, and that Mr Haesler will address your Honours on the “unreasonable verdict” ground, ground 4.
GLEESON CJ: Thank you.
MR ODGERS: Again, as I say, I have dealt with this particular aspect of the evidence in paragraph 5.9, and other examples are being given there of what we say were impermissible reliance on matters outside the area of expertise of these experts. I should just give one more example that we discovered. Your Honours will see that there is a reference there to Dr Oettle relying on the fact that Snezana’s nightie was displaced. Professor Mason gave similar evidence at 359, which is on the next page of the appeal books, where, at line 20, it is put to him:
You then comment in your report that the disturbance of her slip or nightdress is compatible with her having been pushed into that position?
Answer: “It was rolled up”.
GLEESON CJ: Mr Odgers, can I take you back to pages 266 and 267?
MR ODGERS: Yes, your Honour.
GLEESON CJ: Just to be clear as to what went on at the trial. Is the objection on page 267, line 17, the objection to the last sentence, that is, the immediately preceding sentence?
MR ODGERS: I do not know the answer to that. I have assumed that it was.
GLEESON CJ: On that assumption, it might be thought that it would have been open to counsel not simply to object to the evidence in that particular sentence, but to say: if this opinion turns out to have been based on a matter outside the expertise of the witness, then the whole opinion should go. That never seems to have been argued.
MR ODGERS: No.
GLEESON CJ: Was that because counsel wanted to rely on like opinions himself, from other witnesses?
MR ODGERS: Your Honour, I cannot read the mind of defence counsel ‑ ‑ ‑
GLEESON CJ: It is a fairly obvious possible tactical explanation.
MR ODGERS: I have conceded pretty much close to that, that one inference is that defence counsel did not object because of the anticipation of the consequences for Dr Bradhurst’s opinion. I think I have to concede that Dr Bradhurst himself did rely on phenomena which we would have to concede were outside the area of his expertise. I think we would have to concede that. Of course, we have given an argument in respect of that, but I do not think we could argue that Dr Bradhurst’s opinion was not contaminated in the same way as we have argued that almost all the other experts had their opinions contaminated.
Your Honours, we have summarised as best we can in the written submissions at paragraphs 5.6 through to 5.12, the points that we make about admissibility. I should also say that we, of course, rely on Justice Kirby’s analysis in this regard. I will not read it out, but his analysis was in the appeal books in volume 5, pages 1169, really going all the way through to 1176. We submit that his analysis is correct and we have, really, I think, just put his analysis in a slightly different way. He referred at various points in that part of his judgment to the speculative nature of the material that was relied upon. At 1171, for example, he says at line 35 that:
in the circumstances where the requirement was proof beyond reasonable doubt, the view of the pathologists, on the totality of the evidence, expressed on the balance of probabilities, was irrelevant.
We would go so far as to say that, but our primary position is a reliance on the terms of section 79, as has been made clear in the written submissions.
HAYNE J: Well, again, can I just understand what you say should have happened at trial. There was no objection other than those to which you have taken us?
MR ODGERS: I have not been able to find any others.
HAYNE J: It follows, does it, that your contention is that the trial judge should have intervened?
MR ODGERS: Yes.
HAYNE J: When, and on what basis? Because the one thing you never know as a trial judge is what counsel has in their brief and every trial judge, the moment they intervene, suddenly discover that counsel has a perfectly good reason for what they are doing. What should the trial judge in this case have done?
MR ODGERS: My submission is that as soon as it became apparent that Dr Bradhurst’s opinion was really one of probabilities, likelihoods based on matters which are outside the area of his expertise ‑ ‑ ‑
HAYNE J: So the trial judge, what, should have excluded the evidence of the witness who suggested suicide?
MR ODGERS: Yes.
HAYNE J: That would have been a rather bold judgment to make, would it not, in a trial of this kind for the trial judge to say, “No, Crown, you may not lead evidence from the pathologist who asserts suicide”?
MR ODGERS: If that submission is not accepted, then the submission is made that as soon as the next – I am sorry, after Dr Cooke, who we make no complaint about, testified, that when the next forensic expert, who was Dr Collins, testified – and I will find the particular passage. There were certainly parts of Dr Collins’ evidence, starting at page 216, where he referred to whether or not a particular wound – this is line 50 – where he talked about whether a wound was “unusual”. One of our submissions is that in the absence of any established statistical material that it was essentially outside his area of expertise to talk about what was usual or unusual and, indeed, such evidence was essentially irrelevant.
GLEESON CJ: What is the area of expertise of a forensic pathologist?
MR ODGERS: Certainly to give evidence of observations in relation to a death, to describe and explain what those phenomena involve.
GLEESON CJ: Well take an extremely common type of evidence given by such a witness, “I think death occurred between 9 pm and 11 30 pm.”
MR ODGERS: Yes.
GLEESON CJ: That opinion might be based on matters of science, but also matters of commonsense and experience, might it not?
MR ODGERS: In my submission, no. As I understand it, there is a recognised and reliable body of knowledge which permits the combination of observed phenomena, for example taking body temperatures or whatever technique you use, comparing that information with established statistical information and then relying on that to come to a conclusion with an error, a plus or minus element to it, based on prior experience and then to express the opinion in that way to say that based on the temperature, given this established knowledge, one can say that death occurred at a particular time with a plus or minus aspect to it.
GLEESON CJ: There is something in the Evidence Act, is there not, that says that experts can now give opinion on the ultimate issue?
MR ODGERS: Yes, section 80.
GLEESON CJ: Section 80.
MR ODGERS: Well, to put it more precisely, you are not prohibited from giving an opinion because it is on an “ultimate issue”. That does not mean, of course, that it may be that there are reasons of relevance or section 79 why that opinion is impermissible nor that there may not be very good discretionary reasons for preventing that opinion to be given. Our argument relies on, primarily, section 79 for the proposition that these opinions were not wholly or substantially based on specialised knowledge.
CALLINAN J: Mr Odgers, what does it mean in section 80 when it says that:
Evidence of an opinion is not inadmissible only because it is about:
(a) a fact in issue –
Does that mean that it can be evidence of the issue itself, expressing an opinion about the issue itself?
MR ODGERS: I believe that was the intention of this provision, your Honour.
CALLINAN J: It is a little ambiguous to me, I am not absolutely certain about that.
MR ODGERS: Your Honour, the Law Reform Commission talked about this provision in its reports and my learned friend has put on his list of authorities the Law Reform Commission Reports. I can only say that the appellant does not argue that the opinion evidence in this case was inadmissible simply because it was about an “ultimate issue” of whether or not it was suicide or homicide.
CALLINAN J: You concede that experts can give evidence pursuant to section 80 on the issue itself and of the issue itself?
MR ODGERS: Yes.
CALLINAN J: That would have been more precise language, would it not?
MR ODGERS: It would have been, your Honour, yes; I accept that.
CALLINAN J: I am not too sure that “about” is the same, frankly, but it does not arise apparently.
MR ODGERS: I do not rely on it. I am just going through Dr Collins’ evidence as to matters that we say should have been the subject – that his Honour should have at least adverted to the question of whether or not the evidence was admissible. At the top of page 223 he is then asked about his second report:
You indicate in that second report that you are of the opinion that in all probability the fatal neck wound to the throat of Snezana Velevski was not self inflicted?
We say that at that point his Honour should have raised the question as to whether or not that evidence was admissible. Subsequently there was other evidence. I am reminded of page 227, at the bottom of the page:
A. In summary, the fatal wound to the throat of Snezana Velevski, when considered in isolation –
and stopping there for a moment, one of our complaints is that the experts should have looked at it in isolation, that where some of them went too far was to start incorporating matters which were outside their area of particular expertise: the appearance of the scene, for example, other information they had. He is saying:
when considered in isolation, could be . . . self inflicted. However, when it is viewed in conjunction with the other inconsistencies as listed above, it is my opinion that it was most unlikely to have been produced by her own hand.
As I say, we rely on Justice Kirby’s analysis and the written submissions that I have addressed your Honours to.
In terms of authorities, I have referred to the decision in HG and I will not take your Honours to that – I am sure your Honours are familiar with it. I have also put on the list of authorities the case of Anderson (2000) 1 VR 1. If I could just take your Honours briefly to that case. This was a case which had some similarities, although I think in some respects it was a lot easier to resolve than the present case. It involved evidence from doctors as to the question of whether or not wounds were self‑inflicted or not. Two of the prosecution experts testified that they thought the wounds were self‑inflicted. That was in order to rebut a defence of provocation. The defence case was that the wounds were inflicted by the ultimate victim.
The court discussed this evidence at some length beginning at page 17 of the report under the heading “The expert opinion evidence”. That goes for some pages. The only part that I particularly draw to your Honours’ attention is at the bottom of page 22 of the report in paragraph 55. As I say, before I go to that passage, this case was a lot simpler than the present one because there was evidence in Anderson from general practitioners and persons who plainly, one could say, had doubtful expertise. That is not this case. Nonetheless, his Honour Justice Winneke, the President of the Victorian Court of Appeal, discussed this area of evidence and at the bottom of page 22 he said three lines from the bottom:
Counsel was prepared to accept, and asked the court to accept, that there is an organised body of knowledge and experience, based on the observation of wounds alone –
and I notice that point –
which will entitle a person, skilled in the knowledge, to express an expert opinion upon the question of whether particular wounds observed are self-inflicted –
and there is a reference to general authorities about expertise. His Honour says:
I must confess to some difficulty in comprehending how a person, medically qualified or not, by merely observing wounds, can express an opinion that they have been “self-inflicted”. However, I am prepared to accept that such a body of knowledge exists. The evidence of Wells and Collins tends to lend some support to its existence. What is clear, however, is that such a body of knowledge does not derive from recognised principles of medical science, but rather from the study of characteristics and patterns of wounds from which one may infer, by comparison with recognised standards, that the wounds being studied are themselves self-inflicted. Such an expertise would not necessarily be limited to medical practitioners although, by dint of their practice, they would be the more likely possessors of it. In a real sense, as I understand it, the claimed expertise is derived from empirical data in much the same way as those who claim an expertise in analysing and interpreting blood stains to determine their source of origin, whence they emanate and the force of impact required to produce them. However the field of expertise, which we are asked to assume in this case, would seem to me to be necessarily an imprecise one simply by reason of the infinite variety of circumstances in which wounds are produced and can be suffered. In general terms, the law’s own experience suggests that expressions of opinions that a wound or wounds are self‑inflicted are those expressed with full knowledge of surrounding circumstances; for example the history given by the victim or the knowledge that the victim was found in circumstances suggesting self-harm, etc. It is, perhaps, instructive that counsel have not been able to cite to the court any case where opinion evidence of this type, given in circumstances where the accused denies self-infliction and asserts infliction by a third party, has been recognised or received in evidence.
Of course, there is the English case of Mason which was referred to by the Crown – it is not on the list of authorities – and that was a case slightly different, where it was accepted – this is 1911 – that a doctor could express an opinion as to whether or not wounds were self-inflicted or not. There is some American authority which would support that as well. I would make a number of observations about all of that, though. Firstly, one has to be very careful about the limits of the opinion. We say that ‑ ‑ ‑
GUMMOW J: What is the citation of Mason?
MR ODGERS: Mason (1911) 7 Cr App R 67, and it is referred to in the written submissions, at paragraph 5.7 of the appellant’s submissions. The first point I was making was that, in our submission, it is legitimate to talk about whether or not wounds were consistent or inconsistent with self‑infliction, but, in our submission, that should be the limit of it, and we say that the authorities should be understood in that sense.
Secondly, we say that the authorities do not permit an expert to rely on circumstances which do not involve medical or scientific matters. So that while, as his Honour Justice Winneke, with respect, correctly points out, really you have to look at the whole circumstances to come to a conclusion, that, we say, is a question for the jury and that the reason it is impermissible for an expert is not because it is the ultimate issue, but simply because, ultimately, the expert is relying on matters that are not within the area of expertise.
The third thing we would say is that, to the extent that the whole logic of the reasoning is reliance on empirical data, we make the submission that there was really no evidence at the trial that relevant empirical data are kept in respect of these matters. The only time that the issue seems to have arisen was when Dr Cooke was asked whether or not statistics are kept in relation to one particular aspect which was whether suicide victims damage jewellery that they are wearing around their neck when they cut their throat.
He said, “No, there are no statistics on that”, because some of the experts referred to that as a factor, that they thought it was odd that Snezana was wearing jewellery and that there was damage to the jewellery if she was committing suicide and they suggested that did not normally - normally, people, when they commit suicide by cutting their throats, remove jewellery or take great care to ensure that they do not damage it. But, of course, there are no statistics about that and we would say that there was no evidence that statistics were kept about any of the matters that they were referring to when they talked about whether something was unusual or not. We say that that was a significant deficiency in the process of reasoning and the ultimate opinions expressed.
CALLINAN J: Could an expert give evidence as to the observations that he made in the past of the appearance, for example, of defensive wounds on murder victims?
MR ODGERS: Yes, your Honour.
CALLINAN J: There is evidence of the absence of such wounds in this case, was there not?
MR ODGERS: I think I would go so far as to concede that an expert could certainly express an opinion as to whether or not defensive wounds on the hands of a victim were consistent with a person acting in defence of themselves against an attack.
CALLINAN J: That could form the basis of an opinion that the injuries were not self-inflicted?
MR ODGERS: Well, the difficulty is whether or not - and I am not sure whether I would go so far as to concede that the expert could then go to the next step of saying, “Well, I think it is likely that these are defensive wounds rather than some other cause”. My submission is the answer would be that you could not go so far as to say that because it is ultimately speculative. All that the expert can relevantly say is that, “These wounds could have been defensive wounds, but then they may not have been”.
CALLINAN J: Well, you would hardly think an assailant who wants to murder somebody is going to cut their hands and arms first, would you?
MR ODGERS: Of course not, your Honour, but there are other explanations for wounds, for injuries.
CALLINAN J: It is difficult to think of any.
MR ODGERS: They may have been incurred before at some other time than the actual incident itself.
CALLINAN J: I am assuming that they are fresh wounds.
MR ODGERS: My understanding is that an expert could not say that they were necessarily at the same time as the incident. There would be a period of time during which they would have occurred. Again, that would be analogous to expressing an opinion as to the time of death so you could express an opinion as to when the wounds - the period of time during which the wounds would have been inflicted or the injuries would have been incurred. But you could not say, for example, the wound definitely occurred at a particular time.
CALLINAN J: You could say, though, that it occurred at about the same time as the wound that caused death.
MR ODGERS: Yes. I would concede that, your Honour.
GLEESON CJ: Could you give an example, consistently with section 80, of a case where an expert gives evidence on the ultimate issue in the case without moving, to some extent, beyond the precise field of expertise?
MR ODGERS: “In my opinion, the defendant is insane”. One of the points that the Law Reform Commission made was that experts often use terminology which is the same as legal terminology but it has a different meaning, and that when a psychiatrist, for example, says, “In my opinion, this person was insane” that may not be using “insane” in the legal sense, and that one of the purposes of section 80 was to avoid any difficulty with the expert expressing the opinion in that form. A separate question would be if the expert was going so far as to say, “Well, I think he was insane by the legal test”, then the answer would be section 80 would not prevent it, but section 79 would, or may, because the expert does not have relevant legal expertise. In any event, his opinion is irrelevant.
GLEESON CJ: Psychiatrists who give evidence that people are suffering from delusions often are making an assumption about whether something did or did not happen.
MR ODGERS: Yes, that they are assumed facts.
GLEESON CJ: Now, if a person believes that something has occurred that could not possibly have occurred, you can describe that as a delusion. But sometimes experts give evidence which is based in part upon supposed knowledge or an inference that something is a delusion because of the existence or non-existence of a state of affairs that could exist.
MR ODGERS: Yes.
GLEESON CJ: Provided they make clear the steps in their process of reasoning, are they not permitted to give evidence of that character?
MR ODGERS: The only answer – and it may not be a sufficient answer, your Honour – is I do not understand section 80 to prevent that. The effect of section 80 is really, in a sense, to prevent a reliance on common law authority relating to ultimate issues as the basis for excluding an opinion. The provision is designed to say that is not a basis; you really have to look at 79 and discretions for the purposes of resolving the question of admissibility.
GLEESON CJ: But opinions are commonly, in fact, usually based upon hypotheses which may or may not be true. The fact that one of the hypotheses that went into the formation of Dr Oettle’s opinion was concerned with smears on legs, the fact that that hypothesis may have been contestable does not make his opinion inadmissible, does it?
MR ODGERS: No, your Honour. The challenge that is made is not that but rather that – there was no dispute that there was a blood smear on Snezana’s leg. What is challenged is that he should be permitted to say that that was likely to have been placed there by some other person.
GLEESON CJ: That may explain why Mr MacGregor was limiting his objection to the hypothesis rather than to the ultimate opinion.
MR ODGERS: Yes. Your Honours, really there is little more that I can say about this ground. Ultimately, we rely on it in combination with ground 1 and also, if leave is granted, ground 5, and I will turn, then, to ground 1. Our submission, ultimately, is that in combination with a situation where the Crown was permitted to adduce opinion evidence on the ultimate issue, based on opinions which are based on matters outside the expertise of the forensic pathologists, that given that, it was particularly unfair not to call experts known to the police and the Crown to agree with Dr Bradhurst. At the very least, we say, relying on what Justice Kirby said, to ensure that there was some balance in what was put before the jury. Justice Kirby dealt with this at appeal book 5, 1176.
HAYNE J: I find the notion of “balance” in this context elusive. What do you mean by it?
MR ODGERS: Essentially, that – I will get to the precise answer in a moment – but that it lacked balance to have a situation where the Crown called Dr Bradhurst knowing that he would say “likely suicide”; they called Dr Cooke knowing that he would say “neutral” and they called three other forensic pathologists who they knew would say, with greater or lesser degrees of emphasis, “likely homicide”, and that just looking at it in the most simplistic way that one had a situation where there is one in the middle, one going towards suicide and three going towards homicide – imbalanced.
GAUDRON J: On the other hand, you could say two against three, could you not, in the sense that ‑ ‑ ‑
HAYNE J: Given the burden.
GAUDRON J: Given the burden.
MR ODGERS: Given the burden of proof?
GAUDRON J: Yes.
MR ODGERS: Your Honour is referring to Dr Zillman, the defence ‑ ‑ ‑
GAUDRON J: Well, I do not know. Dr Collins, I would have thought.
HAYNE J: Does not the fact that the middle man says, “I can’t say”?
GAUDRON J: Dr Cooke.
MR ODGERS: I am sorry, yes, I see. Yes, you could say that given the burden and standard of proof that Dr Cooke favoured, in that sense, the defence, yes. The submission we make is – we go further than Justice Kirby, but I will just take your Honours to what he said at 1176 under the heading, “The Imbalance in the Evidence”. He referred to established authority, Whitehorn v The Queen, and I will not read the extract there. He referred to the fact, which is undisputed, at paragraph 329, that the police officer involved:
deliberately refrained from seeking reports from doctors whose views coincided with those of Dr Bradhurst –
He did not criticise the police for that. Then over page at paragraph 330:
However, in the result, three of the pathologists (Dr Oettle, Dr Byron Collins and Professor Mason), with varying degrees of emphasis, formed views distinctly adverse to the accused. Dr Cooke, although ultimately undecided on which hypothesis he favoured, nonetheless –
and perhaps is the answer to what your Honour Justice Gaudron put to me –
identified eight matters which suggested to him that the wound was more likely to have been inflicted by another than inflicted by Snezana.
And if I could just stop there. We have not criticised Dr Cooke for the ultimate opinion because he did not go so far as to talk about whether or not it was likely to be homicide or suicide. He refrained from doing so and we say, correctly, but he did, which we have also criticised, talked about particular phenomena and made general observations about whether or not they are usual or unusual in cases of suicide and homicide and, as I have indicated, in the absence really of any statistical information or basis for those assertions. In any event, Justice Kirby continued:
He also identified two matters which were consistent with suicide –
The Crown Prosecutor, in these circumstances, ought, in my view, to have recognised that the presentation of only those witnesses from whom Det Whyte had solicited reports was potentially unfair to the accused. The other witnesses should have been called in the Crown case.....Alternatively, reports should have ‑ ‑ ‑
GAUDRON J: Now was there any reason why the defence could not have called those witnesses?
MR ODGERS: Other than whatever inferences – no, your Honour, of course not, subject to this, that I would invite your Honours to take notice of the limitations of funding that legal aid has and that one should ‑ ‑ ‑
GAUDRON J: No, one is not going to speculate about that.
MR ODGERS: I would not invite your Honours to speculate about any aspect of it. I think the Crown has invited your Honours to speculate in another way about what happened and I would accept that one should not speculate, but certainly the defence complained about the fact that the Crown had not called these witnesses. That was done, admittedly, at the end of the trial rather than ‑ ‑ ‑
HAYNE J: The hypothesis for this part of the argument is that the evidence in question would have assisted the defence. So the complaint is, a complaint about evidence not being called that would have assisted the defence, is that right?
MR ODGERS: Yes, your Honour.
GAUDRON J: Were these overseas witnesses?
MR ODGERS: No, your Honour.
GAUDRON J: These were local pathologists?
MR ODGERS: Yes. These were local pathologists who work with Dr Bradhurst and with whom he discussed the case at the time that he was forming the opinion that he ultimately formed.
HAYNE J: So Sydney pathologists?
MR ODGERS: Yes, your Honour.
HAYNE J: So the conduct money involved would have been $5 to get them there?
MR ODGERS: I cannot speculate on that, your Honour. The complaint that is made is referred to in the transcript, which we provided to your Honours in a bundle. If I can just take your Honours to that. This is the bundle of additional transcript, and on the first page of transcript, which we have provided to your Honours, on page 1 on 7 July 1997 – this is during addresses, the Crown Prosecutor says, at line 30, “I would make some very strong submissions about that in relation to or following the attack by my learned friend on the prosecution, referring to its approach as being improper” – I am sorry, this is in the context of what his Honour had said in the previous paragraph. The jury asked ‑ ‑ ‑
GUMMOW J: What page are we on, Mr Odgers.
MR ODGERS: I am sorry. This is the first page of transcript, your Honour.
GUMMOW J: First page.
MR ODGERS: There is a question from the jury about whether it was permissible for the defence to call those experts. His Honour says, “the answer is yes”. The Crown Prosecutor then said there has been an attack made by defence counsel plainly enough in addresses on the failure of the Crown to call the experts. He says, “the defence were entitled to go and call them”, which is correct. Over the page, defence counsel, at line 5, says that he took “what I put from the judgment of Dawson J in R v Whitehorn” and he refers to the “duty of the prosecutor.”
GAUDRON J: But Whitehorn does not govern this, does it? And if they are available to the defence, they are available to the defence, and it might be quite different if the existence of these opinions was concealed.
MR ODGERS: I understand that that would be a clear case, but the Whitehorn premise, as I understand it, is that, quite apart from the availability of witnesses to the defence, there is a duty on the Crown to call all witnesses who are able to give evidence in order to present the whole picture. That has been generally understood as relating to witnesses who observed relevant events. There is no doubt that it is well established that in the accusatorial system we have there is a duty on the Crown to call all witnesses who are able to give evidence about the whole picture. That is reading from Justice Deane at 664. Justice Dawson discussed the principle ‑ ‑ ‑
GAUDRON J: Was there any tactical consideration here?
MR ODGERS: There is no evidence about whether there was or there was not.
GAUDRON J: No.
HAYNE J: Does it follow from your submission that it should have been the Crown that called the pathologist who gave evidence in the defence case? A pathologist did give evidence in the defence case, did he not?
MR ODGERS: Yes. The answer is: no, that does not follow from my argument.
HAYNE J: Why not? If your argument is that the Crown has to put up all these people, why should it not put up the one whom you called?
MR ODGERS: It is speculative as to what the Crown knew about what Dr Zillman would say. It is also relevant to something that will emerge later, that it is plain that Dr Zillman’s opinion was in fact being formed as the trial was proceeding. That is an important matter which I will come back to later. We say where there is a situation that the police get a report from Dr Bradhurst saying, “I think it’s suicide”, they know that there are at least four other of Dr Bradhurst’s colleagues who agree with that and, because they know that they agree, they choose not to get reports from them but to go elsewhere. Of course, there is no doubt the police suspected murder and they were looking for evidence to support that allegation. There was a relevant unfairness in the Crown in those circumstances.
GAUDRON J: Let us go back to Whitehorn, shall we? That was a case where the complainant was not called, was it not?
MR ODGERS: I believe that is correct, yes, your Honour.
GAUDRON J: And clearly for tactical reasons.
MR ODGERS: Not called by the Crown or the defence.
GAUDRON J: One can understand why the defence might think hard and long about calling a complainant in its case. The same considerations do not seem to me to apply when you are talking about expert witnesses who favour your case.
MR ODGERS: The defence may not know whether they favour the case.
GAUDRON J: I am not sure, but I would imagine by this stage Dr Bradhurst had given evidence that he had discussed it with these people.
MR ODGERS: Yes, but one of the problems with this is that the Crown’s argument, in essence, was that the fact that these other people had discussed it with Dr Bradhurst initially, and agreed with him initially, before all the investigations were in, permitted the inference – and I am not sure this was spelt out explicitly but it was certainly under the surface – that their opinions were to be given little significance because ‑ ‑ ‑
GAUDRON J: Well, they were to be given no significance if they were not in evidence. But we can start with that.
MR ODGERS: I do not think I can – the reality, your Honour, is that the trial judge directed the jury that they could take into account the fact that – because evidence was given of the opinions, second hand, and this is against the appellant’s contention, of course, but the judge did tell the jury that they could take into account the fact that those experts had, at the initial stage, agreed with Dr Bradhurst. So that was before the jury. The complaint we make is that – well, there are two aspects to the complaint we make.
Firstly, we say that that would not prevent a miscarriage of justice because if Dr Bradhurst failed to impress the jury, then second‑hand opinions of experts who agreed with him would be inevitably devalued. Secondly, that just as the Crown attacked Dr Bradhurst on the basis that he had formed his opinion before all the investigations were in, the obvious danger was that the jury would devalue the opinions of those who agreed with him on the same basis. One of the Crown’s arguments was that Dr Oettle initially agreed with Dr Bradhurst, but then when all the investigations were in, changed his mind. It was, we say, inevitable that the jury would have – well, at least there was a real danger that the jury would have inferred that little significance could be placed on the second‑hand opinions for that very reason.
HAYNE J: What answer was given to the jury in response to their question?
MR ODGERS: I believe the answer was, “Yes, they could have been caught by the defence”. We go so far as to say, even further than Justice Kirby, that it is not just a case of ensuring balance but that, in the circumstances of this case, where they had deliberately chosen not to obtain reports from people they knew to agree with Dr Bradhurst, that the obligation to present the whole picture carried through to an obligation, at the very least, to obtain reports from those other experts and to call them to give evidence. We have been unable to find any authority in other jurisdictions on the obligations of the Crown in respect of expert evidence. Certainly in this context. I mean, there is obligations, as your Honour Justice Gaudron pointed out, to disclosure, and that is not the issue in this case.
HAYNE J: In the course of that examination, did you look at the Woolf reports into civil procedure, because I thought that Lord Woolf gave considerable attention to the role of court experts and expert evidence generally?
MR ODGERS: Your Honour, I did not look at that material. I was looking for the purposes of discovering any discussion of an obligation on the Crown.
HAYNE J: Yes, I understand.
MR ODGERS: Yes. That is all that I wanted to put in oral submissions on this ground. I can be very brief in respect of the ground in respect of which leave is sought, that is, ground 5. The relevant directions about which we complain are at volume 4, page 749. The relevant directions are from line 35 down over the page to line 35 on the following page. I will just take your Honours through that in a moment.
Before I do so, what we rely on here is the discussion in Chamberlain’s Case, which we have adverted to in the written submissions, which is, if I could paraphrase it, essentially that where experts disagree on matters of expertise beyond which a lay jury could be expected to differentiate, then, in essence, a jury should not attempt to choose between the experts on bases which are other than bases, for example, that the expert has assumed facts which are not in evidence, or like matters.
GLEESON CJ: Was any redirection sought on this subject?
MR ODGERS: No.
GLEESON CJ: Was this point raised in the Court of Criminal Appeal?
MR ODGERS: No.
GLEESON CJ: Would you have needed leave under rule 4 of the Criminal Appeal Rules to raise this point in the Court of Criminal Appeal?
MR ODGERS: Yes. If the Court were to conclude that we should not be granted leave, we really advance the same propositions in the context of ground 2. The point we make is that in circumstances where inadmissible opinion evidence has come in, that notwithstanding the problem of lack of objection, that there was a substantial miscarriage of justice caused, one reason being not only that it was on an ultimate issue, but also that the directions to the jury about the evidence were inadequate. That is, in essence, the point we are making here.
GLEESON CJ: What is the redirection that should have been given, if it had been sought?
MR ODGERS: Can I just answer that in a moment? Can I just take your Honours to the passage in Chamberlain before I discuss the directions? In Chamberlain 153 CLR 521 at 558, at the top of the page, their Honours Chief Justice Gibbs and Justice Mason say:
It is of course the function of the jury to consider which of two bodies of conflicting evidence, technical or otherwise, they will accept. In the present case, Bowen C.J. and Forster J., in the Federal Court, said –
and your Honours can read the passage. Then they referred to Justice Jenkinson taking a different view, and I will read it out:
“Those means of evaluating evidence which the jury enjoys by hearing and watching witnesses, and which are denied an appellate tribunal, could not in my opinion have enabled the jury reasonably to have eliminated the doubt, as to whether the matter tested contained foetal haemoglobin –
I will just stop there for a moment. As your Honours will no doubt recall, in the Chamberlain Case evidence was adduced that material found in the car of the Chamberlains was said to be foetal haemoglobin, that is, blood from a baby. Justice Jenkinson went on:
which a careful consideration of the transcript of evidence and the exhibits raises in the mind. It may be conceded, as counsel for the Crown submitted, that idiosyncracies of manner and voice may undermine confidence in the reliability of a witness. But the evidence of Professor Boettcher and Professor Nairn claimed the consideration of the jury upon grounds which could not rationally be shaken substantially by those things which the eyes and ears of a jury receive, but which a transcript does not reveal. Each of them was giving his opinion on matters of science within disciplines of which each was a master, and at a level of difficulty and sophistication above that at which a juror, or a judge, might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation -
and then, the last sentence:
But in my opinion no juror could reasonably have failed to acknowledge that, reason as he might, he was not in a position to assure himself of the correctness of a conclusion against the opinions of the two professors to the degree which would eliminate reasonable doubt as to that conclusion.”
Justice Gibbs and Justice Mason agreed with Justice Jenkinson, and, at the top of 559:
The criticisms they advanced appear to be rational and compelling. Of course the Crown witnesses had answers to those criticisms. We do not doubt that if the question was whether there was evidence to support a finding that the blood in the car was foetal blood, the question should be answered in the affirmative. But when the question is asked whether such a finding could safely be made it seems to us the answer must be in the negative. The conflicting evidence should have raised a doubt in a reasonable mind, and there is no other evidence that can resolve the doubt before a decision on the verdict is ultimately reached. We conclude therefore that, in the present case, we must proceed on the basis that the jury were entitled to accept as a fact, from which inferences might be drawn, that those parts of the car, and those articles in it, that responded affirmatively to the tests had blood upon them, but that they could not safely accept as a primary fact that the blood was foetal blood.
Now, before I take your Honours to the directions, the submission we make, based on that passage, is that there were matters of dispute between the forensic pathologists in this case on matters of such a level of technicality and expertise that it would not have been open to the jury ‑ ‑ ‑
GAUDRON J: But what were those? For my part, I just do not see how you bring yourself within the circumstances that were being discussed in Chamberlain.
MR ODGERS: The examples we have given in paragraph 5.24 of the written submissions are the cause of the petechial haemorrhages ‑ ‑ ‑
HAYNE J: This is the complete opposite of the whole of the argument you have hitherto advanced, is it not?
MR ODGERS: With respect, no, your Honour.
HAYNE J: It seems to me to be entirely inconsistent with it, but answer her Honour first and I will take it up with you.
MR ODGERS: What we complain ‑ ‑ ‑
GAUDRON J: 5 point - - -?
MR ODGERS: 24.
GAUDRON J: 24.
MR ODGERS: If I might just briefly respond to your Honour Justice Hayne. There was no doubt that part of the ultimate opinion that was expressed by the experts was based on matters of technicality. They took into account factors like causes of the petechial haemorrhages ‑ ‑ ‑
GAUDRON J: Causes? But, again, I think Justice Hayne and I are talking about the same thing. Was there any dispute as to whether there was a petechial haemorrhage?
MR ODGERS: No. There was no dispute that they were there.
GAUDRON J: No. Was there a dispute as to the existence of superficial cuts?
MR ODGERS: No.
HAYNE J: Your whole complaint that you have hitherto made to us is the pathologists should not have been permitted to go on to say, as they did, “In my opinion, the probability, the certainty, the likelihood is that that is consistent with/inconsistent with self‑infliction”.
MR ODGERS: No, your Honour, there is two aspects. I will make it very clear, hopefully. In this regard, two of the challenges we make are, firstly, that it was outside their field of expertise to express opinions about particular phenomena which did not involve expertise like, for example, whether or not the panties had been moved, whether or not – that is one example. The second criticism we make is that when they came to express the overall opinion, that is, “Taking into account all of these factors which we have referred to, I think it was more likely to be homicide”, that they referred to a combination of technical matters and non‑technical matters and they combined ‑ ‑ ‑
GAUDRON J: That may well go to the admissibility of the ultimate opinion.
MR ODGERS: Yes.
GAUDRON J: But you are talking about something different.
MR ODGERS: I am talking about something different here, absolutely. What I am responding to is the suggestion that ‑ ‑ ‑
GAUDRON J: I am not talking about the ultimate opinion, at the end of the day, in relation to your fifth ground.
MR ODGERS: In this context, I am not talking about the ultimate opinion. I am talking about the particular opinions as to the likelihood that the petechial haemorrhages, for example, were caused by homicidal activity as distinct from suicidal activity.
GAUDRON J: Is that not the ultimate opinion, or so close to it that it does not matter?
MR ODGERS: What happened, your Honour, as I understand it, was that the experts looked at particular phenomena, expressed opinions as to whether or not a particular phenomenon was unusual or likely to be present with suicide or murder, and then at the end they then combined all of these phenomena and all of the assessments of probability in respect of the individual phenomena into a global assessment of probability. That is how I understand the reasoning proceeded.
HAYNE J: At least in respect of that assessment you have described as a global assessment, Chamberlain has nothing to say about that, does it?
MR ODGERS: I do not think so, no, your Honour.
HAYNE J: That is, you agree with the proposition Chamberlain has nothing to say to their global assessment?
MR ODGERS: So far as I understand the position, yes.
HAYNE J: If Chamberlain speaks at all, it speaks in respect of matters of true expert opinion, properly admitted at trial.
MR ODGERS: Yes.
HAYNE J: The proposition you advance, as I understand it, is that the jury could not properly reason to a conclusion of guilt without discounting the evidence of the forensic pathologists given within their area of expertise and, because there were competing views, that was not open to the jury to do. Is that the proposition?
MR ODGERS: That is close to the proposition, yes, your Honour.
HAYNE J: At the moment I should say to you that my understanding of the way you have presented the case is that I do not appreciate what is the evidence that the forensic pathologists gave properly within their area of expertise which could not have been discounted by the jury.
MR ODGERS: Perhaps the best way to handle this is to go to particular transcript references. Before I do that, I will attempt to explain it. At various points in the evidence of the experts, they talked about, for example, technical matters like the cause of petechial haemorrhages. There was no dispute that those haemorrhages existed. It was relevant to know what caused them, because that would be directly to the question of whether it was suicide or homicide. Dr Oettle expressed the opinion – and I am not sure just how emphatically he expressed it, whether it was in terms of probabilities or an assertion of lack of consistency, but he certainly expressed an opinion – that it was unlikely at the least that the petechial haemorrhages were caused by activity consistent with self‑infliction.
Similarly, he and other experts expressed opinions that certain superficial cuts around the wounds in the neck of Snezana were unlikely to be – again I am paraphrasing – hesitation wounds. Of course, hesitation wounds are things associated with self‑infliction. Dr Bradhurst and Dr Zillman expressed different opinions on those topics. So that the argument that is here advanced is that the conflict between the experts on those questions were at a level of technicality which the jury was not in a position to resolve by the means referred to in the passage extracted from Justice Jenkinson’s judgment and endorsed by Justice Gibbs and Justice Mason.
GAUDRON J: Again, you say so. This may be a question that you wish to advance the argument of going specifically to the evidence but, as I had understood your submissions to this point, much of the ultimate opinions depended on things that did not involve a recognised scientific body of expertise.
MR ODGERS: Yes.
GAUDRON J: Well, is that what you still say or ‑ ‑ ‑
MR ODGERS: Yes, but when we are dealing here with areas where there – it did involve recognised expertise.
GAUDRON J: It did?
MR ODGERS: Yes.
GAUDRON J: So you do not challenge these opinions on your main ground?
MR ODGERS: With one qualification, no.
GAUDRON J: I think you need to make your argument very clear on this, Mr Odgers, and I think, at some stage, you had better spell out exactly what it is and not just at a level of generality such as you have put the matter now.
MR ODGERS: I do make the submission that, to the extent that even in respect of matters of technicality, the experts went so far as to express opinions in terms of likelihood, that no proper basis was shown for those opinions. So what I mean by that is that when Dr Oettle – and I will have to check the transcript – expressed an opinion that – and I am assuming that he said it – that this is the substance of his opinion, that it was likely that the petechial haemorrhages were caused as a result of homicide, that he provided no foundation for that expression of opinion.
I have in mind, particularly, the kinds of statistical information or detailed studies which would permit anything other than to say whether or not the petechial haemorrhages were consistent or inconsistent with self‑infliction. Now, it may well be that in this regard Dr Oettle did go so far as to say that they were inconsistent with self-infliction. I do not recall at this stage and I will have to check.
GAUDRON J: Well, this may be a matter of some importance.
MR ODGERS: Yes, certainly, your Honour. I will attempt to – I will, over lunch, give more precision ‑ ‑ ‑
GAUDRON J: It should have been done before you started your submissions.
MR ODGERS: Yes, your Honour. All I can say in my defence is that in the written submissions at paragraph 5.8 we have referred to specific transcript references in respect of Dr Collins, Dr Oettle, Professor Mason, where they testified that, in substance, a particular phenomenon was unusual or not typical if the result of self-infliction. So, in respect of all of those references, we say that no basis was elicited to provide a foundation for such assertions of opinion – such opinions. But I will check those references over lunch and particularly in reference to the question here which your Honour is raising about the matters of technicality. In the context of this ground ‑ ‑ ‑
HAYNE J: Well, just before you do, Mr Odgers, because this really is a matter of some significance and I want you to have as full an opportunity to answer this criticism as you may have.
MR ODGERS: Thank you, your Honour.
HAYNE J: At pages 278 and following, you will find Dr Oettle’s evidence‑in‑chief about petechial haemorrhages. I would be grateful if, at some point, you would direct my attention to his evidence‑in‑chief ruling out self‑infliction as a cause of the petechial haemorrhages. On a quick examination, and I say quick examination, all he seems to be saying is that there were petechial haemorrhages and they were consistent with relatively short periods of anoxia, that is, deprivation of oxygen, and that is all he said. But if there is more to it than that, I would be very grateful for a reference.
MR ODGERS: Certainly.
GAUDRON J: Perhaps you could tell us what the direction is that you think should have been given.
MR ODGERS: Yes. The direction that should have been given was, in substance, that the jury should not attempt to resolve the conflict between the experts on these matters, which I will characterise as technical, except on the basis of an exclusive list of matters which they properly could use to so differentiate.
GAUDRON J: Now, what is that exclusive list?
MR ODGERS: At the moment, all I can advance, your Honours, is the first two matters that were actually given by his Honour when he directed them, and if I can go to that.
GAUDRON J: Mr Odgers, I am simply not understanding this part. Either I am missing something totally – or perhaps I am. But we are talking about misdirections, are we?
MR ODGERS: Yes.
GAUDRON J: No redirection was sought?
MR ODGERS: No.
GAUDRON J: The moment you say they should have been redirected, not to resolve the conflict, except on the basis of an exclusive list, which you say only contains those two matters to which the trial judge referred?
MR ODGERS: He referred to four matters, and it was not an exclusive list.
GAUDRON J: So we are arguing about the word “exclusive”?
MR ODGERS: That is one of the matters we ‑ ‑ ‑
GAUDRON J: Yes, but that is the area of debate?
MR ODGERS: Yes.
GAUDRON J: Very well. Where is the objection?
MR ODGERS: There is no objection.
GAUDRON J: I am sorry, the direction?
MR ODGERS: Page 749.
GLEESON CJ: But he begins by warning them that they are not experts.
MR ODGERS: Yes, but then he discusses how they might resolve the conflict and he says, “You can do so if there is a good reason for doing so”, and then ‑ ‑ ‑
GLEESON CJ: He gives some examples of good reason.
MR ODGERS: ‑ ‑ ‑ he gives some examples. So the criticism we make, firstly, is that he did not say that, “The only basis – the only good reasons would be the following”, he makes it open‑ended. Then we do not challenge the first two reasons, which are on the bottom of 749 and over to 750, but we do challenge on the third line of 750:
did others express a different view taking into account matters of which the particular expert was unaware or which he or she appeared to overlook.
Then:
Did he or she appear to place too much weight on some aspect of the case which some of the other experts thought less important.
Then in the next passage his Honour permitted or invited the jury to “resolve any conflicting expert opinions” by taking into account the non‑pathological evidence, so that when considering the pathological and scientific evidence together with the non‑pathological evidence, the jury could be satisfied beyond reasonable doubt “the accused killed his wife and children”, permitting the jury to say, “Well, there are these conflicts, they create doubts in our mind, but when we combine the views expressed with the non-pathological evidence, we are satisfied beyond reasonable doubt of the guilt of the accused”. The submission we make is that that direction could well have misled the jury into thinking that the non‑pathological evidence ‑ ‑ ‑
GAUDRON J: If there is a difficulty with it, that may be found in – and maybe the direction was given elsewhere – if there is some difficulty with it, it is that the jury was not told, in that context, that suicide had to be excluded as a reasonable hypothesis. Now, maybe that appears elsewhere in the summing up, but that, ultimately, is the test that ‑ ‑ ‑
MR ODGERS: Yes, your Honour, I think at a number of stages that the language used was “reasonable possibility” and that, in substance, would be the same, so we do not make that complaint. Your Honours, that is the best I can do in dealing with this matter. That leaves ground 3.
GLEESON CJ: Where is the direction on lies?
MR ODGERS: There are two parts to it. There is a general direction which was given at page 756. At page 756, at line 10, his Honour referred to the right to silence, then said at line 13:
you may consider and take into account what he says, not only for any direct admissions that he may have made – and in this case the accused has made no admissions – but also for the purpose of considering whether what he said showed a consciousness on his part that he was guilty of the offence charged, and that can arise in various way and one way it can arise is giving answers which are shown to be false – that is, telling lies; and in this case the Crown asks you to infer a consciousness of guilt from the telling of what it claims are lies on the part of the accused, and asks you to take those lies into account as further circumstances in the circumstantial evidence case against the accused.
Then, from then on, over the page, his Honour gave what might be regarded as reasonably standard directions based on the decision of this Court in Edwards. I will not read that out.
The particular lie and question which was left to the jury on this basis is to be found at page 947 of the summing up. Initially three lies were left on this basis. In substance, two were withdrawn and one remained. The one that remained is found at line 14 on 947:
The next matter that the Crown says was a lie that he told, was that he spent from 1pm to 6am in Zaklina’s –
Zaklina was one of the daughters -
room and that he slept from about 3 or 4pm until 6am the next morning. The Crown says that this is proved to be a lie, firstly as a matter of common sense, sleeping for that long. There is Dr King’s evidence –
Dr King was an expert who talked about sleep patterns -
and the Crown says that there is Mr Petre Velevski’s statement in his first statement about him being out on –
that is him, that is the appellant -
being out on the Sunday evening, if you are satisfied that that is established.
Mr Petre Velevski retracted that statement, or at least denied that he had meant to convey what he appeared to convey. His Honour continues:
The Crown submits the reason for this lie, and you will remember I said you have to be satisfied that (a), that it was a lie and (b), that it related to a material matter and the Crown says that the reason for this lie is to give him a type of alibi that he was asleep and therefore he did not do it.
Then his Honour continues on. I will not read out the rest. Over the page he reminds the jury of “the four matters that you must take into account” and that the Crown relied on it “as one additional circumstance” in the circumstantial case against the appellant.
Justice Kirby analysed the evidence in this regard in some detail and we rely on that. I have referred to it in the written submissions at paragraphs 5.27 and 5.29. I will not take your Honours to it. The first point we make is that on the material which was left to the jury as evidence which showed that it was a lie – that is, the three matters that I have just read out to your Honours – we submit that on that material the lie could not be a material lie because it could not show that during the period when the victims died that the appellant was not sleeping or not in his room.
GAUDRON J: Could not show the appellant was not - - -?
MR ODGERS: Was not sleeping or not in his room – not in Zaklina’s room, I am sorry. All the evidence showed was that it was unlikely he slept for the length of time he claimed and that in respect of Petre Velevski’s statement that he was out of the room at a time before the earliest time when the murders – I am referring specifically to the murders of the children – could have occurred.
GAUDRON J: No, I do not follow that either.
MR ODGERS: The murders occurred between 9 pm on 19 June and 5 am on 20 June. He claimed that he was in Zaklina’s room between approximately 1 or 1.30 pm on 19 June and sleeping or not sleeping - he gave conflicting accounts about that, whether he was sleeping at the time or just resting or lying there – and did not come out of the room until 6 am the following morning.
CALLINAN J: Neither to get any food nor drink nor to go to the lavatory. Was that the evidence?
MR ODGERS: Yes.
CALLINAN J: For 17 hours he was ensconced in the room and never left it?
MR ODGERS: That was the evidence.
CALLINAN J: It does not seem very credible to me, Mr Odgers.
MR ODGERS: I understand that, your Honour.
CALLINAN J: Why would he lie about something like that unless it related to guilt?
MR ODGERS: My submission is that is a very good question, and the answer is there is no obvious reason for lying about it.
CALLINAN J: Unless he did it out of a consciousness of guilt.
MR ODGERS: But, in my submission, that inference cannot be drawn because it does not provide him with an alibi, there is no need ‑ ‑ ‑
CALLINAN J: Did his father not confirm it? Was that not supposed to be the alibi?
MR ODGERS: All his father obviously could say was, “I didn’t see him come out of his room in that period of time”, but of course the father and the mother went to bed and the father and mother could not possibly provide any kind of alibi for him in respect of the commission of the killings.
HAYNE J: All you are saying is it was not a very good alibi.
MR ODGERS: Well, it was not an alibi at all. It was, essentially, a denial of guilt.
HAYNE J: If it amounts to a denial of guilt, in effect, you concede the point, Mr Odgers.
MR ODGERS: No.
HAYNE J: It seems to me the moment you say he is denying guilt by saying, “I was asleep”, then the only alternative, once you say that that is not right, is ‑ ‑ ‑
CALLINAN J: It is a lie in denial.
MR ODGERS: No, no, no, but, your Honours, the question has to be, “What is the process of reasoning which allows one to conclude, or might permit one to conclude, that by telling a lie about something, you can infer that the accused is thereby admitting his guilt of the crime charged?” One thing that, for example, Justice Brennan made abundantly clear in Edwards is that it is very hard to convert a denial of guilt into an admission of guilt. Indeed, even if one denies guilt in a way which can be shown to be false, that does not at all necessarily lead to the inference that he is guilty or that he is admitting guilt.
If, for example, he had said that, you know, the day before he had been in another town, and that was false, no one would suggest that you could infer from that that he was guilty of the crime charged. So, in this context, the point that is being made is that if you can infer that when he says he was in the room from, let us say, 1.30 pm till 9.00 pm on Sunday, which is a period of time during which the murders could not have occurred, even if he was lying about that, it could not lead to an inference of an admission of guilt, and that is all that is being put at this point.
HAYNE J: The distinction that has to be drawn is a distinction between the statement, “I did not do it”, which can never become, “Yes, I did it”, and the statement, “I was not there”, which, if false, may well be false because of a consciousness of guilt.
MR ODGERS: Yes, your Honour, and if he had said, “I was not in the house, I was somewhere else than the house”, then I would not be banting this argument. But the point is he did not say that. He said he was in another bedroom. That provided no possible alibi. He asserted that he did not come out of it during the relevant period, but it cannot be inferred that even if one concludes that he did come out of it during a period of time when the murders could have occurred – I am sorry, I withdraw that.
Even if one proceeds on the assumption that he could have come out of the room, or did come out of the room, during the time when the murders did not take place, that cannot permit an inference that he is telling a lie from an awareness that the truth will convict him. That, of course, is the process of reasoning that is involved in this context. Perhaps I should take your Honours to Edwards 178 CLR ‑ ‑ ‑
GLEESON CJ: You are not seeking to raise a question of principle, are you? As I understand it, you are just relating the principles to the facts of this particular case.
MR ODGERS: Yes. I should point out that objection was taken at the trial. Defence counsel objected to this being left as evidence from which consciousness of guilt could be inferred; he submitted that it was not a material issue. He also sought what I will call the “Chamberlain direction” which I will come to in a moment. In Edwards, Justice Brennan – and I will take your Honours to the majority judgment in a moment, but Justice Brennan, at page 199, said, at the bottom of the page, “The relevant inference ‑ ‑ ‑
GAUDRON J: Justice Brennan was in dissent in that case, was he, I think?
MR ODGERS: Yes, your Honour. Perhaps I will take you to the majority judgment, having said that, and withdrawn in the way that I did. There are nonetheless passages in Justice Brennan’s judgment which we say are not inconsistent with the majority judgment, and we rely on them. But I will come back to them, perhaps, in a moment. At page 208, the majority said, in the last paragraph:
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.
Then, on 209, in the first full paragraph:
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”.
Your Honours, let us assume that the truth was that he came out of the room at 8 o’clock. How could that convict him? It could not. It could not, because the deaths occurred between 9 pm and 6 am. Even if – and there is evidence that I will take your Honours to in a minute – there was evidence that could reasonably be used to conclude that he was out of the room at 2 o’clock in the morning, how could that convict him? All he has to say is, “I was out of the room at 2 o’clock in the morning.” But that does not tend to show that he is guilty of the crime charged. There is no reasonable basis for inferring that the appellant believed that if he told the truth, assuming the truth is that he was out of the room - particularly before 9 o’clock, but even if he was out of the room after 9 o’clock – no reasonable basis for concluding that he thought that the truth would convict him.
It was not a false alibi where a person says, “I was in another place”, because he realises that if he was at the scene, that would convict him. That is why a false alibi permits an inference of consciousness of guilt, because of the realisation that if you were present at the scene you were guilty. But, this is not a false alibi in that sense, because his presence in the house did not make him guilty; it would only be if he was present in the bedroom where the deaths occurred, at the time they occurred. It was simply a denial of involvement and even if – and I will come to this in a moment – there was some evidence, which was not relied upon by the Crown and not referred to by the judge, that he may have been out of the room at 2 o’clock in the morning ‑ ‑ ‑
GLEESON CJ: Who were the people in the house at the time ‑ ‑ ‑
MR ODGERS: The appellant, his father and his mother and the four victims.
CALLINAN J: And at some time in the morning the appellant took his parents away, did he not?
MR ODGERS: Yes, your Honour. That was after the deaths.
GUMMOW J: It was 6 am, was it not?
MR ODGERS: Later than that, your Honour. The deaths occurred before anyone left the house.
CALLINAN J: Woke his mother, who was asleep, and on a cold morning took them away.
MR ODGERS: Mr Haesler will address this in detail, your Honour. The essential point we make is, if he had no reason to regard the truth as inculpatory, how can his later retraction show that he was conscious of his guilt? Apart from the majority judgment – and if I can just go back quickly to the judgment of Justice Brennan. He said at page 199:
The relevant inference is not that the accused realized his guilt but that, in making his statement, he was unable to account innocently for the evidence that has been given against him.
Well, that is true of false alibis, but it is not, we say, in respect of this case. His Honour Justice Brennan said this at 201:
When the supposed admission consists in the making of a false denial of guilt, the prosecution is hard put to turn the denial into an admission.
It would surely be a rare case in which it would be permissible to infer beyond reasonable doubt that an accused, by telling a lie, has confessed his guilt. Generally, the jury is directed that the accused should not be convicted merely because he has told a lie.
There are other aspects of this which I need to address. There was some evidence that he had told people on 20 June that he had been out of the room, not just at 8 o’clock on the night of 19th, but also at 2.00 am on the 20th. Now, that may well be regarded as material, but that evidence was not left to the jury and, in my respectful submission, there were very good reasons for that – not left to the jury in the sense of evidence to show that he was lying in this context.
The first thing to say is this, on the 20 June, the first person to whom he says anything about when he had last seen his wife and children was a relative to whom he said that it was 1.30 pm on the 19th. That is evidence is to be found at ‑ ‑ ‑
GUMMOW J: Do you mean am or pm?
MR ODGERS: Pm, which was essentially the account he gave at trial. So the first person he speaks to on the 20th is to say, “The last time I saw them was 1.30 pm” which is what his trial evidence was. Justice Kirby summarises that evidence at 1158 of the appeal book and I will not take your Honours to it. Then, at some point, he has a conversation with neighbours, Mr and Mrs Jorge and they believe that he is telling them that the last time he saw his wife and children was at 2 in the morning on the 20th, and they give evidence to that effect. Then, on the same day, subsequently he talks to a policeman and that policeman believes he says 2 in the morning; and then he talks to another policeman who actually speaks Yugoslav and says to that policeman ‑ ‑ ‑
GUMMOW J: No such language, you mean Macedonian, do you?
MR ODGERS: I am sorry, your Honour, I am actually extracting what Justice Kirby said in the judgment, I was not sure, a variant of Macedonian, was it, or Serbian? I do not know, your Honour, he spoke the same language that was the primary - natural language of the appellant and his evidence was that the appellant told him that it was 1 pm or 2 pm, I will just check that. At 1149 Justice Kirby refers to evidence that the appellant spoke to Senior Constable Peter Stefanjuk on 20th June. He says:
Constable Stefanjuk was able to speak Yugoslav –
and in that conversation he told Constable Stefanjuk that he had not seen his family since 1 o’clock on the Sunday afternoon, “at 1 o’clock yesterday”, that is 1 o’clock on the 19th.
Justice Kirby, in his extensive discussion of this evidence, points out that there were major problems with the appellant’s mastery of English, and the point I make here is that that analysis tends to establish, in my submission, that it would not be reasonably possible for a jury to be satisfied that the appellant did, in fact, say and mean to say to persons to whom he was conversing in English, “2 o’clock in the morning on 20th June”, that is the first point, particularly in the context where, on the same day, before those conversations, he says “1.30 pm” and after the conversations he says, “1 pm”.
The second point is that there was no cross‑examination of the appellant about this at all by the Crown. The only cross‑examination about this whole question of suggested lies is to be found in volume 3 at page 714. So far as I have been able to see in the cross‑examination of the appellant, 714 is the only cross‑examination on this topic. It is put to him that he told the police that he had been asleep in the room from 1 o’clock the previous afternoon to 6 o’clock in the morning. His answer to that was:
I was in my little girl’s room during that time.
Q. And you had gone to sleep for a length of time which you had never gone to sleep before?
A. No, I have never slept that long before in my life.Q. And you did not sleep on that particular night either, did you, you were not in that room the whole time?
A. I was in that room but I don’t know whether I was sleeping deeply non stop or not sleeping for a certain time.
So it was put to him essentially that he was essentially not telling the truth about whether or not he was sleeping in the room or in the room the whole time, but no cross‑examination at all about these conversations which he allegedly had with the Jorges and a police officer, in which he allegedly said 2 am – no cross‑examination about that at all. It was not put to him that he said it, not put to him that he was lying, that, in fact, that showed that he was lying when he said he was in his room from 1 pm. He was not given any opportunity to deal with the evidence which was not, in fact, relied upon by the Crown at the trial to support the making of a relevant lie showing consciousness of guilt but is relied upon by the Crown now in this Court as a basis for that inference.
The point I am making, your Honours, is that the three matters left to the jury – there was no reference in this context to evidence from witnesses that he said 2 am. In my respectful submission, it may be inferred that it was concluded that a jury could not reasonably rely on the evidence of those witnesses to be satisfied that he told a lie on the question of whether or not he was out of the room at 2 am because of the obvious English problems and because of the fact that he was not cross‑examined about it at all.
Even if, as I said, it was open to infer that he was lying about it, on the basis of that evidence I rely on what Justice Kirby said at pages 1153 and 1156 of volume 5. His Honour said at 1153, paragraph 246:
The Crown referred to Mr Velevski’s assertion that he had been in Zaklina’s bedroom from 1.00 pm to 6.00 am as a “type of alibi”, as his Honour reminded the jury when summing up. Grove J likewise characterised . . . as providing “the appellant with an established alibi”. An alibi, however, is the assertion (usually supported by witnesses) of an absence of opportunity, because the accused is geographically removed from the scene of the crime.
The appellant’s account cannot, in my view, be regarded as an alibi, as that term is usually understood. The essence of an alibi is the absence of opportunity. Here the appellant was in an adjacent bedroom. He was present, moreover, when others in the household (namely his parents) were asleep. His account can hardly be said to be an alibi. It was simply a denial of involvement, with an explanation as to where he was.
One can readily infer that a statement asserting a false alibi is made with a consciousness of guilt. However, where the statement which is said to be false is not an alibi at all, but a detail of the accused’s denial, then the inference may or may not arise, depending upon the nature of the falsehood.
GUMMOW J: What do you mean by the term “alibi” in this universal discourse?
MR ODGERS: “Alibi” is evidence tending to establish that the defendant or accused was not present at the scene of the crime.
GUMMOW J: The scene of a crime being what?
MR ODGERS: The Crown’s argument was the scene of the crime was the bedroom when the deaths occurred, but the point we make is that the scene of the crime was the house. It is an important substantive matter, your Honour, because one has to look at it in terms of the substance because one is trying to draw an inference as to consciousness of guilt. One can draw an inference as to consciousness of guilt where a person says they are geographically removed and you can prove that they were not because you can infer form the fact that they lied about it, that they lied because they realised that their presence made them guilty.
The whole point here, as I have said, is that the presence of the accused outside the bedroom – outside the bedroom where he says he was – did not in any way tend to point to his guilt. It simply did not and could not. In essence, Justice Kirby said - and I will not take your Honours to it - that he considered that the lie, if there was one, had no significance.
I have put written submissions on this topic in the reply at paragraph 10 and I will not read out that material. If I could just take your Honours to one last authority in this context. It is the case of Grosser 106 A Crim R 125, a decision of the South Australian Court of Criminal Appeal. Firstly, at page 143, in the judgment of Justice Duggan, there is an extract from a passage in the judgment of Chief Justice King in the case of Harris, which is often referred to in this context and to which I would draw your Honours’ attention to. In that passage, Chief Justice King discussed the significance of lies and said, about eight lines down:
The circumstances in which the accused’s lies will have an effect transcending mere damage to his credibility and will constitute positive evidence of the commission of the crime have been discussed in the context of corroboration in the cases of Lucas and Evans. The probative character of some lies rises from their tendency to indicate that they proceed from a consciousness of guilt on the part of the accused. Instances of lies of that kind are false denials of having been in the company of an alleged victim at a material time -
that is the one I have just been discussing -
or of having been at the scene of the crime at a relevant time, made at a time when the accused could not have known, unless he was the culprit, that there had been any wrongdoing in connection with the alleged victim or at the scene of the crime. Even in such cases courts must be on their guard against collateral motives for telling lies, such as the desire to conceal from a spouse that the accused was in the company of the alleged victim or was at the scene of the crime. The circumstances in which lies told after an accused becomes aware that he is or might be under suspicion in connection with the crime can amount to positive evidence of the commission of the crime must be rare. The tendency of persons under suspicion to wish to distance themselves from the persons or events connected with the alleged crimes and to endeavour to improve their position by falsehood is far too common to enable an inference to be drawn with confidence, in any but the rarest of cases, that lies proceed from a consciousness of guilt. Unjust results can easily flow from a readiness to treat lies of an accused person as positive evidence of guilt.
Over the page he refers to the proposition - this is reading an extract from Justice Brennan which I have already taken your Honours to. Then at paragraph 74:
In the light of these considerations it is difficult to see how any of the three instances relied upon by the prosecution in the present case could have satisfied the requirement necessary for admissions against interest. There is a clear distinction to be drawn between lies which provide positive evidence of the commission of a crime and lies told by an accused to improve his or her position in the face of allegations.
At the top of 145:
It is simply an attempt to improve his position in relation to the facts upon which one of the prosecution arguments was based. The lies on this issue, if they were told would be relevant to the appellant’s credibility . . . But they would hardly amount to an admission of guilt.
My submission is that even if it is concluded that he told lies on a material matter, that it could not reasonably be inferred that he was thereby admitting his guilt of the crime charged.
GUMMOW J: Now, at page 1006 there is a plan of this house.
MR ODGERS: Page 1006?
GUMMOW J: Yes. Now, bedroom 1 is the scene of the deaths, is it?
MR ODGERS: Yes.
GUMMOW J: And the plan of that is at 1007.
MR ODGERS: Yes.
GUMMOW J: Which is the bedroom in which your client says he was sleeping for this lengthy period? Is there evidence of that?
CALLINAN J: It was Zaklina’s bedroom, was it not?
MR ODGERS: Zaklina’s.
GUMMOW J: Yes, but is that 2 or 3?
MR ODGERS: I do not know, your Honour – 2.
GUMMOW J: Is there evidence of that? Are you sure about that?
MR ODGERS: No, your Honour, I am not sure. I am instructed that it was 2. I am sure the Crown will – it is by consent. It is agreed.
GUMMOW J: Thank you.
MR ODGERS: It may be concluded then that bedroom 3 was the bedroom of the parents.
CALLINAN J: Sorry, did you say bedroom 3 was the main bedroom, was it?
MR ODGERS: No. Bedroom 3 was where the parents lived, stayed, slept.
CALLINAN J: I am sorry, thank you.
MR ODGERS: The last aspect of this ground of appeal relates to the question of whether any direction should have been given by the judge on the question of the standard of proof relating to the making of the alleged lie, and the inference from the alleged lie as to consciousness of guilt. A direction was sought from the trial judge by defence counsel that the jury should have been told that, in order to use the alleged lie in the way suggested by the Crown and the defence counsel, they needed to be satisfied beyond reasonable doubt that the lie was told and that it flowed from a consciousness of guilt.
This issue was considered by this Court in Edwards, and the majority of the Court held that, as a general proposition, it is not necessary to tell a jury that a lie needs to be – the jury has to be satisfied of the making of the lie and the suggested inference beyond reasonable doubt, at least where such a lie is not the sole evidence against the accused or an indispensable part of the case against the accused. The submission that is made here is that, in general, a jury should be told that if an item of evidence is regarded by them as indispensable to proof beyond reasonable doubt – I withdraw that. If an intermediate fact is regarded by them as indispensable to proof of guilt beyond reasonable doubt, that they must be satisfied of the existence of that intermediate fact beyond reasonable doubt, and that, in this case in particular, and perhaps more generally, where lies are relied upon as evidence of consciousness of guilt, that such a direction should be given and perhaps – although the appellant does not need to go so far – the jury told that, in respect of a lie, suggest an alleged lie relied on to show consciousness of guilt that, if in fact the jury does regard the making of that lie and the inference of consciousness of guilt as indispensable to proof beyond reasonable doubt, then they should be satisfied of those things.
GUMMOW J: Can we just get down to earth for a minute.
MR ODGERS: I am sorry, your Honour?
GUMMOW J: What night of the week was this killing?
MR ODGERS: Sunday night.
GUMMOW J: So, Monday would have been a school day?
MR ODGERS: Yes.
GUMMOW J: Is there at least one child of school age?
MR ODGERS: Yes.
CALLINAN J: Zaklina was it not?
MR ODGERS: Zaklina.
CALLINAN J: Zaklina, and he claimed that he thought Zaklina might be at school, did he not?
MR ODGERS: Yes, he went to the school.
CALLINAN J: Notwithstanding that he took two notes, I think, which he had taken from her schoolbag – he took two notes with him to the school that he had taken from her schoolbag which was at home, is that not so?
MR ODGERS: Yes. Mr Haesler will address your Honours on this very soon – well, after lunch, but I have almost finished my submissions.
CALLINAN J: And that was said to be another lie, was it not, that he did not know that she was not at school?
MR ODGERS: It was never relied on as a lie.
CALLINAN J: I thought Justice Grove said that it was that. I may be wrong. Anyway, I will not interrupt.
MR ODGERS: Your Honours, I will only be about five minutes more, but perhaps I will do that after lunch?
GLEESON CJ: We will adjourn until 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Odgers.
MR ODGERS: Thank you, your Honour. Your Honour Justice Hayne asked me to give close attention to the evidence, particularly in relation to Dr Oettle about petechial haemorrhages, but it is in the context of the wider issue of the contention of the appellant that there are a number of technical matters in respect of which it is our submission that the jury needed very careful directions about attempting to resolve the conflict between the experts.
In respect of petechial haemorrhages the relevant evidence is summarised in the appellant’s written submissions at paragraph 5.53 on page 17. In the specific question your Honour asked me about Dr Oettle, the only evidence that we found in examination‑in‑chief was the reference your Honour referred to which is at page 280 of the transcript. Your Honour may have referred to 278 but the reference we found was at the top of 280 at point 3:
Was there anything in relation to the location, size or appearance of the petechiae that is of significance?
A. I thought they were consistent with being asphyxial in origin from the photographs. There were no photographs of the shoulders ‑ ‑ ‑
GAUDRON J: Was there any issue but that they could have been caused either by asphyxia or by aspiration?
MR ODGERS: That was the ‑ ‑ ‑
GAUDRON J: That was the question that was relevant to whether it was murder or suicide but there was no dispute, was there, that they were capable of being caused by either.
MR ODGERS: At a general level, correct, but Dr Oettle ‑ ‑ ‑
GAUDRON J: Okay, then we come to a more precise level in which ‑ ‑ ‑
MR ODGERS: Dr Oettle came to express the opinion that they could not have been caused by aspiration.
GAUDRON J: Well, did he say that?
MR ODGERS: Yes, he did in cross-examination.
HAYNE J: Yes, it was drawn out by counsel for the accused.
MR ODGERS: Yes, your Honour, but, in my respectful submission, when he says, “I thought they were consistent with being asphyxial”, that was an ambiguous statement. It could have meant what it literally meant, which was, “It was consistent with asphyxial and possibly consistent with other things”.
HAYNE J: So are you saying to us that the judge should have stopped counsel for your client asking the questions he did?
MR ODGERS: No. Your Honour, we are in a different realm of discourse here.
HAYNE J: Yes, we are in a very different realm of discourse, I fear, Mr Odgers.
GAUDRON J: But what I do not understand is this. Had one group of experts said, “It could only be caused by asphyxia”, and another group said, “No, it can be caused by asphyxia and aspiration”, then you are in the Chamberlain territory, are you not?
MR ODGERS: Yes.
GAUDRON J: Well, what brings you within the need for some sort of careful direction, as you call it, when it is not in issue that it can be caused by one or the other, or can be caused by both, rather, and what has happened is that some doctors have said that he thinks in this case it was caused by one and others say that in this case they think it was caused by the other.
MR ODGERS: Well, one has to look at the evidence and the nature of the opinions expressed varied from issue to issue and from expert to expert. As a general proposition, some of the experts went so far as to say – and this is a good example, Dr Oettle, admittedly when it was clarified in cross‑examination but nonetheless, went so far as to say, not consistent with aspiration; consistent with asphyxiation. That is, he is rejecting the possibility that ‑ ‑ ‑
GAUDRON J: Where does that emerge?
MR ODGERS: That is at 317. The question at line 15.
GAUDRON J: Now, is there any dispute about the factual matters on which Dr Oettle there bases his opinion?
MR ODGERS: My understanding is, no. It is a question of interpretation of – there were some disputes about some factual matters, for example, the existence of bruises, but, in this context, I do not believe there was any dispute about the foundational material.
GUMMOW J: Well, these photographs at page 1056 and following of the corpse of the deceased, they were tended through witness Doherty, were they not?
MR ODGERS: Yes, your Honour.
GUMMOW J: His evidence is not reproduced?
MR ODGERS: No, your Honour.
GUMMOW J: We do not know when and at what stage these photographs were taken?
MR ODGERS: Dr Bradhurst gave evidence on this, your Honour, but I am not certain. Mr Haesler will answer that question.
GUMMOW J: Presumably, the body had been washed in some way, had it?
MR ODGERS: I cannot answer that, your Honour.
GUMMOW J: On the face of it, they are rather misleading photographs.
MR ODGERS: I do not know if any point was made about that at the trial.
GUMMOW J: Well, I just want to know.
MR ODGERS: Can I return to the issue of the evidence from the experts. The first point I make is that in some contexts some experts ruled out possibilities. So, for example, in this context, Dr Oettle would say, “No possibility of aspiration”, whereas Dr Bradhurst said ‑ ‑ ‑
GAUDRON J: He does not say, “No possibility”. He says, “I would rule it out”.
MR ODGERS: Yes, your Honour, but that is in the context of being asked whether or not – the question is, “Is the possibility of it being due to aspiration, and could it be absolutely ruled out?” And he says, “I would rule it out, the possibility”. Other experts, Dr Bradhurst, thought the cause was aspiration. That is referred to in the summary at 5.53. Other experts, Professor Mason, thought that aspiration was unlikely. I return to this point that I keep making, that even when a witness only says, “I think something is unlikely”, if there is a dispute between those who say it is unlikely and those who say it is likely, that is also a dispute in respect of which a Chamberlain analysis is apposite, in my respectful submission.
But just if I can conclude on the point relating to Dr Oettle on petechial haemorrhages, it is my submission that while it only emerged clearly in cross‑examination what he meant, what his view was, my submission is that what he said in-chief at 280 would have conveyed to the jury and, in my respectful submission, was intended to convey that he thought it was asphyxial and not aspiration. I have summarised the evidence on petechial haemorrhages at 5.53 and I will not take your Honours to all of that.
The next technical matter we refer to is the conclusion as to whether or not the superficial cuts in the wounds of Snezana were or were not hesitation wounds. If they were hesitation wounds, they demonstrated suicide. If they were not hesitation wounds, then obviously they did not demonstrate suicide. The evidence is summarised at 5.51 in the written submissions of the appellant and particularly on page 17. Your Honours will see that in the summary that we have given there - and I can take your Honours to the pages if necessary - Dr Bradhurst considered that they were characteristic of suicide. Dr Oettle saw them as likely to be exit wounds, which of course is not hesitation wounds - sorry, he also thought some on the left were hesitation wounds.
CALLINAN J: Just remind me, why are you making these submissions, because is it not the situation that there was simply evidence each way, as it were?
MR ODGERS: The reason that the submission has been made is because of the ground that we are seeking leave to advance, that the jury were not properly directed as to how they should attempt, if at all, to resolve the disagreements between the experts on these highly technical matters.
CALLINAN J: Well, what should they have been told?
MR ODGERS: They should have been told that it would be dangerous for them to attempt to resolve the disputes on any other basis than a conclusion – this may be speculative – that an expert had failed to take into account the two matters that I referred to in the summing up which we do not take objection to but, if you invite them to say, “You decide what’s good reasons. If you think, for example, that he’s given too much weight to some particular factor or that you just think he doesn’t have as much expertise as the other expert or you’re not impressed by the manner in which the evidence is given”, those would all be inappropriate bases upon which the jury could differentiate between the experts.
CALLINAN J: Inappropriate bases, you say?
MR ODGERS: Yes, your Honour, those matters that I have just referred to.
CALLINAN J: Why?
MR ODGERS: Because there is no suggestion that the experts were incompetent or lacking relevant expertise. Certainly in respect of Dr Zillman there was a suggestion that he did not have a lot of experience, but there was no suggestion Dr Bradhurst lacked any kind of relevant ‑ ‑ ‑
CALLINAN J: That is not an answer really. Why should the jury not consider the matter from the standpoint of these sorts of questions that you say ‑ ‑ ‑
MR ODGERS: I have relied on the extracts from Chamberlain’s Case and the propositions that are there articulated, your Honour.
CALLINAN J: Which particular proposition in Chamberlain’s Case? Can you tell me precisely which one?
GUMMOW J: My impression is that what you are condemning has been done often in all sorts of expert evidence and scientific evidence by judges sitting alone in their reasons. They are invited to behalf in that way?
MR ODGERS: I am sorry, I did not hear your Honour.
GUMMOW J: They are invited, often, to behave in that way and that is not objected to. I have done it myself.
MR ODGERS: No, there is no objection taken to the directions about which we now make complaint, the ones in the summing up which I referred to.
GUMMOW J: You said that the jury might be encouraged to pursue some impermissible courses. I just wondered why they are impermissible.
MR ODGERS: They were told that they could distinguish between them for good reasons. Four matters were referred to as being good reasons. We have said the first two were legitimate and the second two were not.
CALLINAN J: You say that that is because of something that was said in Chamberlain?
MR ODGERS: Yes, your Honour.
CALLINAN J: Well, I am looking at - - -
MR ODGERS: Page 558.
CALLINAN J: Yes.
MR ODGERS: In the extract from Justice Jenkinson. For example, seven lines down:
It may be conceded, as counsel for the Crown submitted, that idiosyncracies of manner and voice may undermine confidence in the reliability of a witness. But the evidence of Professor Boettcher and of Professor Nairn claimed the consideration of the jury upon grounds which could not rationally be shaken substantially by those things which the eyes and ears of a jury receive, but which a transcript does not reveal. Each of them was giving his opinion on matters of science within disciplines of which each was a master, and at a level of difficulty and sophistication above that at which a juror, or a judge, might by reasoning from general scientific knowledge subject the opinions to wholly effective critical evaluation.
CALLINAN J: But that is what juries have to do. Expert evidence is given and a jury, inevitably, when there is a conflict of expert evidence, has to subject that evidence to some form of critical evaluation with a view to determining which is preferred.
MR ODGERS: Your Honour, with respect, the view that is expressed by Chief Justice Gibbs and Justice Mason is that there are certain types of ‑ ‑ ‑
CALLINAN J: I know, but it seems to run counter, Mr Odgers, that is what I am suggesting, to what occurs in the courts every week, inevitably and has to. Did any other Justice in Chamberlain adopt what Justice Jenkinson said?
MR ODGERS: Other than Chief Justice Gibbs and Justice Mason?
CALLINAN J: Yes.
MR ODGERS: I am not sure about that, your Honour, I will check.
CALLINAN J: But I do not understand it. Is the proposition that there is some body of evidence which is far above the heads of a jury, that the jury just cannot be expected to evaluate it?
MR ODGERS: Yes, by the normal methods that they evaluate the evidence of witnesses, yes. What they have to do is they have to say, in respect of that dispute, that there must be a doubt as to what the correct answer is, so that you put that to one side and look at the other evidence in order to see whether or not that evidence establishes the case beyond reasonable doubt.
CALLINAN J: Is there any other authority apart from Justice Jenkinson and Chief Justice Gibbs and Justice Mason ‑ ‑ ‑
MR ODGERS: Your Honour, I can only say that since 1984 this has been understood to be the law.
CALLINAN J: You tell me that. You tell me that it has been understood to be the law.
MR ODGERS: I do.
CALLINAN J: Two Justices of this Court have stated it. Has it been affirmed or in any way dealt with by any subsequent High Court?
MR ODGERS: I do not think so.
GAUDRON J: And what their Honours were there talking about was an evaluation of whether the verdict was unsafe.
MR ODGERS: Unsafe, yes.
GAUDRON J: They were not talking about what you are talking about, namely, the directions that must be given to the jury, and if you come back to what you postulated, you said they were to be told that they cannot resolve the conflict. That seems to me to be an absurd proposition to put to ‑ ‑ ‑
MR ODGERS: Your Honour, perhaps I have put it too strongly there. What I really was going to say, dangerous ‑ ‑ ‑
GAUDRON J: Well, to resolve – no, it may be that you should say something like, “If you find that there is a critical difference of opinion on matters entirely scientific and which do not depend on matters such as position of the body and so forth and so on, then you should perhaps entertain a reasonable doubt whether that is a fact”. But I do not see that you could ever go beyond that.
MR ODGERS: Well, your Honour, I do adopt what your Honour has put. In essence, that is what I have been putting.
GAUDRON J: Well, not exactly.
MR ODGERS: I have been trying to.
GAUDRON J: Well, that is not how you put it and the question remains whether they are talking about critical matters that are essentially scientific and do not depend on factual matters which they can assess for themselves.
MR ODGERS: The reason I conceded that the first two matters left to the jury as bases for differentiating were legitimate were precisely where the opinions are based on facts in respect of which the jury has made findings which may be different from the facts assumed by the expert. I have conceded that, but what I have sought to do is to persuade your Honours that once you move out of that area, to leave the jury to choose between them on other bases, which they regard as good, is inviting great danger.
If I could just briefly move on to the two other specific technical matters that we raise other than the petechial haemorrhages. I have referred to the superficial cuts and whether or not they are hesitation wounds. I have summarised it at 5.51 and I will not take your Honours to that material. The third is, again, a matter that we say was of great importance at the trial and involved technical considerations. Was the relationship between the blood loss of Snezana and her capacity to perform movements of the type that the defence suggested she may have performed after she had had her throat cut.
GAUDRON J: May have performed?
MR ODGERS: Well, your Honour, it was the defence putting up a scenario as to what Dr Bradhurst and Dr Zillman - advancing a scenario which they thought was ‑ ‑ ‑
GAUDRON J: It was just the word “may” I am challenging. Is it not the case ‑ ‑ ‑
MR ODGERS: I am talking about the defence scenario, your Honour, not the prosecution scenario.
GAUDRON J: Yes, but is it not the case that there must have been some degree of movement by the deceased’s wife after her throat was cut if suicide was to be a reasonable hypothesis?
MR ODGERS: Yes, your Honour.
GAUDRON J: Thank you. So it is the relationship between the blood loss and movement she must have made on the defence thesis?
MR ODGERS: No, your Honour, because ‑ ‑ ‑
GAUDRON J: Or “may” have made.
MR ODGERS: Yes, because there is a distinction between saying “She must have moved” and saying “What movement precisely she did”, and, of course, the defence asserted that she moved and that some things she had to have done after she had cut her throat but the nature and extent of those movements was a matter of some uncertainty. But it may be that the distinction between “may” and “must” in this context is not of profound importance. Certainly, Dr Oettle asserted that Snezana could not have performed the movements which the defence either said she must have performed or suggested she may have performed, given the amount of blood that she had lost. The evidence is at pages 284 to 285 of Dr Oettle’s evidence‑in‑chief.
GAUDRON J: Can we be quite clear? The bed had to be moved, did it not?
MR ODGERS: Yes.
GAUDRON J: She had to have moved the bed.
MR ODGERS: The bed had to have been moved some centimetres.
GAUDRON J: Yes, and she had to then position herself on top of the children.
MR ODGERS: Yes, and she had to move the children some distance. Mr Haesler will be much more precise about that than I have been. We have summarised in our written submissions, particularly at paragraph 23 of the reply, some of the evidence and some of the submissions but, certainly, some of the evidence relating to this question of blood loss and capacity for movement. Paragraph 23 is only part of the irrelevant evidence. I have referred to 284 to 285 of the transcript. There is no question that Dr Bradhurst and Dr Zillman both thought it, in contrast, possible that Snezana could have performed the movements which they said she did.
Dr Collins, who is referred to at the end of paragraph 23, took a different view to Dr Oettle and accepted that if only one major blood vessel was initially damaged, movement over a number of minutes was possible. That is not directly conflicting with Dr Oettle but it certainly was in substance. Those are the three technical matters where we rely on what is said in Chamberlain.
GAUDRON J: Tell me again what is the direction you say should have been given?
MR ODGERS: That in respect of that conflict on those technical matters, it would be dangerous for the jury to attempt to choose between the views expressed except on either of the first two bases mentioned by the trial judge.
GLEESON CJ: Does that bring us down to Mr Haesler?
MR ODGERS: No, not quite. I still need a little bit more time, your Honour. One thing I forgot to mention about the submission in respect of the lies ground: I had submitted in essence – and I do not know if I made this absolutely clear - that I rely on the principles articulated in Edwards for the proposition that the suggested lies showing consciousness of guilt should not have been left to the jury on that basis. In Edwards the majority of the Court concluded that the suggested lies in that case should not have been left to the jury.
For similar reasons we say the lies in this case should not have been left to the jury because, just as the majority said in Edwards that it was difficult to regard the appellant’s evidence as involving a deliberate lie, we say that it was difficult to regard what he said as a deliberate lie, given the analysis of Justice Kirby. We also say that, as in Edwards, if there was a lie, it was not a lie with any probative value. It was not capable of showing a consciousness of guilt for the reasons that I explained before lunch, and we say therefore it should not have been left to the jury as capable of doing so.
The final matter that I was dealing with before lunch was this question of whether or not the jury should have been told that if they regarded the making of the lie and an inference of consciousness of guilt as indispensable to the process of determining guilt beyond reasonable doubt, then they would have to be satisfied that the lie was made beyond reasonable doubt and satisfied that it showed beyond reasonable doubt that the appellant was conscious of his own guilt.
In the written submissions I have drawn the Court’s attention to the decision in Familic and the unreported decision in the Victorian Court of Appeal of Edwards. In addition, if I can just take your Honours to the decision in Laz (1998) 1 VR 453, and the passage I want to take your Honours to is at 468. In the central paragraph your Honours will see that there is a discussion of the decision in Edwards and particularly the judgment at 209 to 210 where the majority of the court held that if it is not indispensable, it does not have to be proved beyond reasonable doubt. Then at line 32, the Court of Appeal said this:
Thereby it may again be said, with respect, that in those other cases –
where it is not indispensable –
a jury could be invited to infer consciousness of guilt by proof to a lower standard that a lie had been told by an accused in a statement (in or out of court) generally denying guilt or asserting facts undoubtedly inconsistent with guilt. The jury would then have to determine the accused’s guilt beyond reasonable doubt having already made essentially the same finding to a lesser standard of proof. This again, it may be respectfully submitted, would be asking a jury to engage in an exercise of logic far beyond what could reasonably be expected of them.
The problem might appear to have arisen from the assertion that one circumstance where consciousness of guilt must be established beyond reasonable doubt is where the lies said to constitute the admission are “the only evidence against the accused”. The difficulty with that exception is that the jury may in other cases reject, or be in a state of uncertainty about, the rest of the Crown case but would wish to rely upon the evidence amounting to consciousness of guilt in order to convict the accused. Thus, although it would not have been presented by the prosecution as the only evidence against the accused nor would it have been seen objectively as the only evidence against the accused, nevertheless in the course of their deliberations it might be seen by the jury themselves as amounting to the only evidence against the accused. There, notwithstanding the passage at 210 of Edwards’ case, the jury ought, in order to convict, to be satisfied beyond reasonable doubt that it was a lie evidencing consciousness of guilt of a kind which indisputably enabled the jury to conclude that the accused was guilty of the relevant count. That this may be seen to be far from an exceptional set of circumstances may be deduced from the nature of the inference which is required to be drawn wherever consciousness of guilt can be properly alleged. For there must be a lie and the jury must be able to exclude all other reasonable hypotheses in order to draw an inference that the accused had told that lie because of “the realisation of guilt and a fear of the truth”: Edwards at 211. It is not some lesser inference that is required. It is an inference that the lie was told because the accused was conscious of his or her guilt, not because of any lesser consciousness relating to some less grave state of facts. The lie may be required to relate only to some material fact, but the relevant inference as to the accused’s motivation must undoubtedly flow from implication in the crime charged. Moreover it would be pointless to draw an inference as to some lesser activity . . . It might in the circumstances be better for trial judges to assume that a jury may see the evidence of consciousness of guilt as the only evidence upon which they could rely to convict the accused, so that they should tailor what are otherwise the strictest of requirements in Edwards’ case accordingly and direct the jury that the relevant inference should only be drawn by the jury if they are able to do so beyond reasonable doubt. Furthermore, if the various alternative hypotheses are such that the necessary inference could not be drawn to the requisite standards, a judge should not leave to the jury lies or false denials as evidence of consciousness of guilt.
We rely on that passage.
Two final matters. Can I take your Honours to Shepherd 170 CLR 573. Shepherd is probably the leading case before Edwards on this whole question of proof beyond reasonable doubt of intermediate facts. The judgment that is usually referred to in this context is the judgment of Justice Dawson, who in essence held that only where an intermediate fact is indispensable must it be proved beyond reasonable doubt. The difficulty is in knowing when an intermediate fact is indispensable. That is the real, with respect, difficulty in a case such as the present.
Chief Justice Mason discussed at page 576 what he and Justice Gibbs had said in Chamberlain, which had led to some difficulties, and I rely on what was said there. At the top of 576, the Chief Justice referred to a passage from Chamberlain, which read:
“Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt.”
He then qualified that passage by saying:
In the first sentence in that passage it would have been more accurate to refer to “an intermediate fact as an indispensable basis for an inference of guilt”.
So the passage would read, “The jury cannot view an intermediate fact as an indispensable basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt”. The point I make is that that leaves open a circumstance in which the jury regards it as indispensable, whatever ‑ ‑ ‑
GUMMOW J: What do you say about Justice McHugh’s statement at 594?
MR ODGERS: Justice McHugh takes a different view, your Honour. Justice McHugh takes the view that ‑ ‑ ‑
GUMMOW J: The second paragraph on 594.
MR ODGERS: Yes. Justice McHugh, in my respectful submission, takes a view which is not the view of the majority of the Court in Shepherd or, indeed, Edwards. The view he takes, as I understand it, is that one can have a situation where you might have, say, 10 intermediate facts, all established on the balance of probabilities, and that a jury could use them in combination to be satisfied of guilt beyond reasonable doubt.
GLEESON CJ: Anybody disagree with that?
MR ODGERS: I think so, your Honour, yes.
GLEESON CJ: It is the combination that produces the absence of reasonable doubt.
MR ODGERS: Your Honour, there is a distinction between using a series of facts which are proved beyond reasonable doubt, and strands in the chain of inference towards proof of guilt beyond reasonable doubt.
GLEESON CJ: What has to be established beyond reasonable doubt at a criminal trial are the elements of the offence.
MR ODGERS: Yes, your Honour, but there is a long line of authority within this Court that where a jury is relying on the existence of a fact as part of the process of reasoning towards guilt beyond reasonable doubt, it cannot use that fact ‑ ‑ ‑
GAUDRON J: Well, it is an indispensable fact, that is to say, it is an absolutely critical fact for the making of a particular inference.
MR ODGERS: Yes.
GLEESON CJ: That is just to state the obvious, is it not?
MR ODGERS: It directs itself to the jury’s process of reasoning and it says – let us suppose there is evidence of identification and in a particular case the jury say to themselves, “We cannot possibly be satisfied beyond reasonable doubt of the guilt of the accused unless we accept that evidence of identification”. Then, obviously, they have got to be satisfied, beyond reasonable doubt, of the evidence of identification.
MR ODGERS: Your Honour, I am content with that analysis and I rely on it in this case because there ‑ ‑ ‑
GAUDRON J: Rely on it for what in this case?
MR ODGERS: For the proposition that the jury may have – and it is sitting in the jury room – have said, “Putting to one side this question of the lie we are left in doubt as to the guilt of the accused”.
GAUDRON J: That is an entirely different proposition. That is an entirely different proposition. That is a situation in which the lie is added to all the other facts to form a conclusion.
MR ODGERS: Yes. In my submission, in that situation, the lie cannot be used by the jury to resolve the doubt that they have unless they are satisfied beyond reasonable doubt that the lie took place and satisfied beyond reasonable doubt that it disclosed consciousness of guilt and I understand the position in Laz to be saying just that.
GAUDRON J: If it is the only basis for a particular conclusion.
MR ODGERS: Yes, your Honour, but that is not a decision to be made by the judge looking at it objectively. The question is whether or not the jury might reach that point in its deliberations.
GLEESON CJ: Yes, we understand that, thank you.
MR ODGERS: Your Honours, apart from those authorities the only other matter is that there is an extensive discussion about this whole question of what the law is as a result of Chamberlain, Shepherd and Edwards and, in my submission, a useful discussion in Ligertwood, 3rd Edition at pages 82 to 90 where ‑ ‑ ‑
GUMMOW J: Does Ligertwood deal with this passage in Chamberlain at 588 where Chief Justice Gibbs and Justice Mason adopt Justice Jenkinson?
MR ODGERS: I am sure he does but I am not sure if it is at those page references, your Honour.
GUMMOW J: I cannot find it in Cross.
MR ODGERS: No. I think you will find that Mr Ligertwood did and I will look for it when I am sitting down.
GLEESON CJ: Thank you, Mr Odgers.
CALLINAN J: Mr Odgers, before you sit down I want to bring you back briefly to your first submission which seems to be that the expression of an opinion as to suicide or murder is not a matter about which an expert can give evidence, is that correct?
MR ODGERS: No, it is bit more. It is rather that an expert can say whether or not the observed phenomena, at least where they are technical matters, are consistent or not consistent with those two possibilities.
CALLINAN J: Because there is not a sufficient body of knowledge and experience to enable more than that to be said?
MR ODGERS: That is one reason why ‑ ‑ ‑
CALLINAN J: That is the principal reason in your written submissions.
MR ODGERS: That is the principal reason.
CALLINAN J: But, can I draw your attention to this expert evidence service of Freckelton and Selby which I think has been discontinued but at paragraph 33, point 470, there is quite a lengthy discussion – indeed, the previous paragraph as well - about observed patterns of suicide. Indeed, the authors divide self‑inflicted injuries into four categories: self‑inflicted, mimicking and assault, suicide, scarification and self‑mutilation.
MR ODGERS: Yes.
MR ODGERS: Yes.
CALLINAN J: And then go into some considerable detail of statistics and information in relation to these. It would seem to me that those paragraphs alone establish that there is such a field of expertise and knowledge and it strikes me, frankly, as a matter of ordinary understanding and experience, because doctors are in the best position, pathologists, to know how much force is required to penetrate sinew and bone.
MR ODGERS: Of course.
CALLINAN J: Which sinew and which parts of the body are most vulnerable, bleeding, evidence of the sort of bleeding and the extent of bleeding, whether an area or a particular part of the body could be easily reached and sufficient force applied to it. All obviously matters of medical expertise which, coupled with experienced observation and other writings, I would have thought, well qualify experienced pathologists to give an opinion that murder or suicide is more likely.
MR ODGERS: Your Honour, the first thing I would say is, I have not looked at that material in Freckelton and Selby, but it was my understanding ‑ ‑ ‑
CALLINAN J: Well, I am sure there is more.
MR ODGERS: There may well be.
CALLINAN J: It is just an example.
MR ODGERS: No, your Honour, but what I first say is, it is not self‑evident, from the evidence in this trial, nor, in my submission, is it clear that statistics are kept on the frequency with which, for example, a person committing suicide by cutting their throat wounds themselves so deeply as to nick the spinal column. No doubt there is non-empirical information about how common that is ‑ ‑ ‑
CALLINAN J: Well, let me give you an example from the publication:
Vanezis and West (1983) –
the authors are obviously referring to other material, but obviously reputable material –
reported on 21 fatal cases of self‑stabbing. In fifteen cases, tentative or hesitation injuries were present. In a further two cases –
and so on.
MR ODGERS: Yes. I accept, your Honour, that there are studies which have looked at a number – it might take 10 or 15 or 20 suicides and might say, “Well, in those, 80 per cent the wound to the throat did not go so deep as to touch the spinal column”. But, your Honour, how useful is that information?
CALLINAN J: Well, it is very useful, I would have thought, coupled with the doctor’s own observations, access to the photographs, his own experience, his or her knowledge of tissue, how it reacts, blood, bleeding. I just cannot understand President Winneke’s hesitation about this sort of evidence in Anderson’s Case.
MR ODGERS: Well, the first reason I have given you is that, in the absence of reliable and comprehensive statistical material, a proposition that in 15 cases, for example, hypothetically, 11 of them do not go so deep as to touch the spinal column, that is not useful at all. The second point I make is that the experts, in this case, went far beyond talking about matters like this, technical matters upon which there might be statistical information. They included matters which had no medical or scientific basis.
CALLINAN J: Such as?
MR ODGERS: Such as whether the scene looked too peaceful, whether or not blood marks on the leg were likely to have been put there by the deceased ‑ ‑ ‑
GLEESON CJ: Well, you are probably right that there is very little statistical information available on the number of occasions which people have incomprehensively slashed their throats, rearranged the furniture and other heavy objects.
MR ODGERS: Yes, your Honour, but I am looking at it at a higher level of generality.
CALLINAN J: Every expert, in the course of giving evidence, will inevitably resort to some matters of ordinary common knowledge and experience. Not every word that an expert says must relate to a field of expertise.
MR ODGERS: No ‑ ‑ ‑
CALLINAN J: His expertise is based upon common knowledge and common experience as well as particular expertise and experience.
MR ODGERS: Your Honour, as required by section 79 of the Evidence Act it must be substantially based on his specialised knowledge and if it is, then it is admissible. But the submission we make is that these experts went too far.
HAYNE J: Can we take it away from generality? Can we go to page 62, which is the first piece of evidence led, without apparent objection, from Dr Bradhurst, who was the pathologist who went to the scene, and at
lines 33 and following he is invited to read from his report his opinion. Do you say that the answer given at lines 35 to 46 is in any part inadmissible?
MR ODGERS: No, your Honour.
HAYNE J: He was invited in-chief to expand on both competing views and confirmatory views and that set the scene for what evidence was later to be given by all of the pathologists.
MR ODGERS: Yes, your Honour, but it is not apparent on page 62, and I will have to check the rest of his evidence-in-chief, but on page 62 I cannot see any reliance on matters which we have described as non‑technical, non‑medical. A general answer to Justice Callinan which I was going to make was that it is legitimate for a forensic pathologist to look at the wounds and, what I will call, medical matters relating to the wounds, but we maintain the submission that the experts or, certainly, the prosecution experts relied on by the prosecution went to matters which were well beyond that limitation. That is the first thing.
The second thing is that we have complained that it is very dangerous for an expert to say that something is usual or unusual in the absence of any verifiable, reliable, statistical records as to that question.
Thirdly, it is particularly dangerous to attempt to combine a number of things which are said to be usual or unusual, typical or untypical, likely or unlikely, into one global assessment, particularly when those matters include matters which do not involve expertise, into one global assessment about whether or not it was suicide or homicide. It may well be that Dr Bradhurst in this part of the transcript was not going beyond what we have complained about, but of course we are not complaining about Dr Bradhurst; we are complaining about the other experts. It is those about whom we do say that they went substantially further than was permissible. We have spelt out how we say they went substantially further than what was permissible in the written submissions and we rely on those.
GLEESON CJ: Thank you, Mr Odgers. Yes, Mr Haesler.
MR HAESLER: If I might deal firstly with two factual matters raised with Mr Odgers. Justice Callinan raised a question about defence wounds and the cut to the thenar eminence, the base of the thumb. At the very bottom of page 411, in cross‑examination of Professor Mason, he says:
I think it probably is a defence wound . . .
A. It’s always the case that there always could be other possible causes. She could have done it in the kitchen the day before.
I cannot quite recall the exact question your Honour asked but it was in relation to admitting of other possibilities at the same time as saying, “Look, I think it was likely a defence wound. She could have done it in the kitchen the day before”. It took the matter no further.
CALLINAN J: If anything, the evidence favoured you on that point though, did it not? There were no other apparent possible defence wounds, were there?
MR HAESLER: No. There was an injury to the top of Snezana – I will call her Snezana. It is no disrespect to the deceased, I do not think. That is how she has been referred to – there was an injury to the top of her head found at the post‑mortem but it could not be dated.
CALLINAN J: That is what I say. On balance that point, if anything, favours you.
MR HAESLER: Some bruises were found on her wrists which also favoured us because it was hypothesised, at least by Dr Zillman, that they were consistent with being held by Zaklina, the six‑year‑old daughter, may have held her wrists. Zaklina did suffer defence wounds. She had clear and unambiguous cuts to her hands consistent with being cut by a knife. That was not in dispute. The point raised by Justice Gummow related to the photographs of the ‑ ‑ ‑
GUMMOW J: There are two batches of photographs. One was exhibit B and the other is exhibit L.
MR HAESLER: At the bottom of page 38 in the first volume, Dr Bradhurst is giving evidence about who else was present and:
Q. One of those was Det. Doherty?
A. Yes.Q. He was a person who you had directed at various stages, to take photographs throughout the course of your post-mortem examination?
A. Yes.
In the additional transcript, which is at page 155 of Detective Doherty, and he describes what he saw during the post-mortem, but, your Honours, we did not extract the following pages which were his description of the post-mortem, frankly, because we did not think that they were in dispute or particularly relevant. What the photographs show ‑ ‑ ‑
GUMMOW J: But the photographs that are exhibit B, they are taken in situ.
MR HAESLER: Yes, during the course of the post-mortem, and what they are showing is ‑ ‑ ‑
GUMMOW J: Are the photographs that are exhibit L are taken on another occasion.
MR HAESLER: Sorry, there are photographs taken in situ ‑ ‑ ‑
GUMMOW J: That is exhibit B.
MR HAESLER: Yes, and then there is a series of photographs taken during the post-mortem.
GUMMOW J: Yes, that is right, that is exhibit L.
MR HAESLER: Yes, and during the post-mortem, we have the process of the post-mortem, at least the initial stages: the body is first unwashed, then washed and then thankfully we do not have the photographs of the continuation.
The appellant contends that the verdict was unreasonable. We contend it cannot be supported by the evidence. The meaning and scope of the expression “unreasonable verdict” was previously known by the generic term “unsafe and unsatisfactory” and this appeal was commenced whilst that term was still current. It was considered by this Court in Jones and M v The Queen and there is a particular passage at page 494 of M v The Queen which sets out the task of an appellant court when this ground of appeal is put before them.
GLEESON CJ: Was there an appeal against sentence?
MR ODGERS: No, there was not, your Honour. In considering the question that this ground poses, the Court must consider the evidence, and if I might take you briefly to an extract or summarise what was said at 494 in M:
If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal –
or Court of Appeal –
to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.
GLEESON CJ: Did the trial judge, in his remarks on sentence, express any views about the strength of the Crown case? The remarks on sentence are not reproduced in our - - -
MR HAESLER: They are not reproduced. He certainly cast no doubt upon the verdict, your Honour. It was not in terms of the sentences now being imposed in New South Wales for homicides a severe sentence. The minimum term, I think, was 19½ years, with the statutory quarter added to that for parole, as was then the case, so it was not the sort of sentences that are sometimes being handed out.
GLEESON CJ: I just wondered if the trial judge said anything bearing on the point, that is all.
MR HAESLER: No, no, your Honour, as far as I am aware, no. It almost goes without saying that in making that assessment, it must be viewed in the context of the rulings and the directions given by the trial judge and in the context of the other grounds, and those, of course, were raised by Mr Odgers.
The jury’s constitutional role is not in dispute, nor is there importance as a tribunal of fact, but we say this case is one where the Court could say, as Justice Kirby did at the Court of Criminal Appeal, that juries sometimes get it wrong. Indeed thankfully rare, there are occasions when the appellate court exercising its functions is, in fact ‑ ‑ ‑
GAUDRON J: Would we have to go so far as to say “must have got it wrong”, do we?
MR HAESLER: No, your Honour. Juries sometimes get it wrong.
GAUDRON J: You say it is sufficient to appreciate ‑ ‑ ‑
MR HAESLER: The question is: ought to have had a ‑ ‑ ‑
GAUDRON J: ‑ ‑ ‑ there is a significant possibility that they got it wrong.
MR HAESLER: Or they ought to have had a reasonable doubt. “Ought” is probably a lesser term than the one your Honour is using.
GLEESON CJ: Well, that means they ought to have acquitted.
MR HAESLER: Yes. If you do not think they ought to have acquitted, then you would not interfere with the verdict on this ground. If they ought to have acquitted, then a verdict of acquittal should be substituted. But that is essentially the test. Juries do get it wrong; courts have appeal do intervene and set aside the jury’s verdict on the basis they did get it wrong. There are two aspects to what confronted the jury in this case that are particular and apposite so far as the test in M was concerned and that is, the jury were confronted by a unique situation – most of the pathologists conceded as such. They were confronted with brutal wounds, and they were confronted with a mother, on the defence case, who had slaughtered her children and then viciously and ferociously attacked herself.
It is sometimes hard to comprehend that a mother could kill a child, but of course we know that sometimes they do, and then kill themselves. Similarly, fathers kill their children and then kill – sometimes they fail, but they attempt to kill themselves. Those things happen. They do not happen often, but they happen enough to be able to say to a jury or the court sitting as a jury that we must put aside the presumption that a mother would not slaughter a child, and look at the facts. When looking at the facts, one is confronted by the autopsy photographs, and in this case, given the nature of the case that was run primarily by the prosecution but then by the defence, it involved the close and detailed analysis of much more, and, on the screen in the court, of the photographs which have been reproduced in the appeal book for this Court.
GLEESON CJ: This is an appeal against four convictions of murder.
MR HAESLER: Four convictions of murder. Four convictions of murder where the jury had before them the graphic and disturbing photographs that your Honours have ‑ ‑ ‑
GLEESON CJ: And there is no doubt that three of the victims were murdered.
MR HAESLER: Were murdered. The whole question on appeal was whether – the question was had the Crown proved beyond reasonable doubt they were murdered, and, so far as the three children were concerned, there was no doubt that they had been murdered. Then the next question was, was Mr Velevski, the present appellant, the murderer of all four? It was not in dispute that whoever inflicted the wounds on all four bodies was the same person.
The proof that Mr Velevski was the killer, as opposed to Ms – was based upon who else could have done it. There was no sign that anyone had broken into the house; the only other person who had to be excluded, effectively, was the father. The defence did not run a trial on the basis, “My father could have done it.”, although the Crown still had the obligation, as it pointed out during the trial, of excluding Petre Velevski, the appellant’s father. But certainly, it was not put in issue as such, in any formal sense, by way of cross-examination of Mr Velevski.
GLEESON CJ: I think what I said was probably inaccurate in one respect. It does not affect your argument at all. I would have thought that if the competing possibility was that the act that caused the death of the three children was the act of their mother, it does not necessarily follow that, in law, what was involved was murder. There could have been a defence ‑ ‑ ‑
MR HAESLER: There could have been formal defences. A mental illness is one that comes immediately to mind. One could not think of anything other than the formal defences to murder that are available to anyone who does that. But let us be neutral about it ‑ ‑ ‑
GLEESON CJ: But there could have been mental illness or diminished responsibility.
MR HAESLER: Yes. Well, that would give a defence, at least so far as murder was concerned. Whoever killed the children was responsible for the death of Snezana, is probably a neutral way of placing the way the cases were run both by the defence and by the Crown. That person could have been Snezana herself. On the Crown case, that person was the appellant. There was no evidence of an outsider. That left Petre Velevski as a person who had to be excluded. The Crown formally put to Petre Velevski that, to get a denial, but that was after the point was raised by Mr MacGregor. But, certainly, the defence did not put to Petre Velevski that he was responsible.
The second point, in terms of the constitutional role of the jury, and it is sometimes said the superior position of the jury and their ability to assess witnesses, is that this case, and particularly the Crown’s case, depends to a significant degree, in fact, almost entirely, so far as the circumstantial case is concerned, on what Mr Velevski says he did and what he did, in fact, do. It is not a case of, well, the jury did not believe Mr Velevski when he said he went to the school or did not believe him when he said he was at the house. All the objective facts which put Mr Velevski in a certain position, all the objective material that the Crown rely upon to base, say, their lie, comes from Mr Velevski. So the assessment of what he says and what he does may have some relevance in terms of credit when it comes to denial.
GLEESON CJ: Well, putting aside his parents, he is the only person left standing after all this is over.
MR HAESLER: Yes, and he, in fact, made the point in, I think, his first records of interview, that there was no signs of a burglary. He raised that point a number of times in puzzlement. He expressed some doubts she killed herself, he did not do it, but there was no objective signs of burglary or anyone else coming into the house. So if she did not kill herself, it was either Petre – his mother was, I think, well into her 70s and very ill, so that it was not in any way seriously contested she had the capacity to commit the offence.
The Crown still had to, as a matter of formal proof, exclude the only other person, and that was Petre Velevski. If they could not do that – there was a ground raised in the Court of Criminal Appeal and rejected by all the judges of appeal that they had failed to do that. The point I am making in regard to the constitutional role of the jury is, of course, the Crown are relying to a large degree on Mr Velevski himself to damn himself in that sense. So that the role of the jury in assessing whether he is telling the truth or not is not particularly relevant in the sense of those proven facts on which both the Crown rely and the defence do not contend is incorrect.
An example, perhaps, is the so-called lie, the statement saying, “I went to my daughter’s room at 1, 2 o’clock and I did not get out until 6 am”. If he had said, “Well, apart from going to the toilet and apart to get a drink of water some time during the night when I heard nothing”, it may have advanced his case. It certainly would not have hurt it. It would not have been an admission. It could not have been regarded as a lie. It may be said that that just shows he is a very bad liar. But the point is the Crown rely upon him saying, “I went to my room. It was very unusual. I have worked triple shifts and never slept so long. I normally sleep seven hours”. All of those facts from Mr Velevski were not contested as being from Mr Velevski and relied upon by the Crown in order to prove the lie against him. So the jury’s role in assessing Mr Velevski was not as important in many ways as cases where the whole factual scenario for the defence depends upon the version given by the accused.
GUMMOW J: Is there any evidence about the structure of the wall between bedroom 1 and bedroom 2?
MR HAESLER: No, your Honour.
GUMMOW J: What was it made of? We do not know?
MR HAESLER: No, your Honour. There were photograph tendered and a video tendered of the house. It appeared to be a fairly ordinary brick veneer home. There was certainly evidence that one would have expected in a homicide that there would have been significant noise, but the Crown raised that scenario and said, “Well, if particularly Snezana, was ambushed, so to speak, while she was asleep, then it could have been over very rapidly.” So it was raised. There was certainly evidence that the next door neighbours at No 11 heard, when Mr Velevski was there the following afternoon, just prior to the police being called, actually heard Velevski’s phone ring and he went to answer it, so noise could carry in that neighbourhood. Yes, the point you are making is he may well have heard this if he had not have been asleep or he could have been woken by what she did. Well there was no evidence that he was and he was not tested and the parents did not hear anything.
GUMMOW J: They were in bedroom 3?
MR HAESLER: Yes, but that is, as you seen from the plans, diagonally across; not that far from where the events did occur. There is no doubt that they occurred.
GLEESON CJ: Separated by more than one wall?
MR HAESLER: Well, they are separated by the door and then the hall space and the door of their room, it was open, but there was no evidence that the parents had heard anything and there was nothing to indicate that the parents had heard anything in family discussions which were recorded by the listening devices which were placed in the home for some weeks after the event.
GLEESON CJ: It is a funny thing, is it not, if the point you make about the defence wounds on the hands of the child is right, it is hard to think that this exercise was unaccompanied by a lot of noise.
MR HAESLER: Yes. It is clear that the child did suffer some wounds to the hand.
GLEESON CJ: Well that would seem to make it clear that the child struggled.
MR HAESLER: Yes. The defence case is obviously that there would be more noise if he had committed the homicides than if the mother had. The mother has only one victim to subdue, and that is Zaklina, and it is done by the mother, not quite by surprise, because obviously there were some wounds while it was being inflicted, they were quite ferocious wounds to her throat and she would have died fairly quickly, but the wounds could have been occasioned by simply grabbing at the knife as it was cutting her own throat. So the actual noise that she was able to make while her throat was being cut may have been very limited, if she was caught by surprise.
The same, of course, applies to Mr Velevski, but he would have had to have done it twice and depending on whether you accept Professor Mason’s scenario or Dr Oettle’s scenario – Dr Oettle has the children being killed after the mother; Professor Mason has her being killed before the mother. If the seven-year-old was brought into the room by her father or held over the body and slaughtered over the body of her dead mother, one would have expected significantly more noise. Similarly, if the mother was killed after the children, one would have expected significantly more noise. Whereas, if Snezana had committed the crime, only her daughter would have been able to cry out and if it had have been carried out by surprise, and what we have are cut marks on the hands consistent with grabbing for a knife that is cutting your throat, there may not have been much chance for much noise at all, because obviously the two babies would have been killed without any - they would not have known, they were not aware at that stage.
GUMMOW J: How old was the other child?
MR HAESLER: Zaklina, or Jackie as she was known, was six or seven. The two babies were three and a half months old. In relation to the scenarios, if I take the Court to volume 5, 1054, it is the conclusion of the record of interview where the independent officer has come in to assess and ask the question:
Have you any complaints to make in relation to the interview?
A (INTPRTR) No. I know that she – that she was ‑ ‑ ‑
A (SUSPECT) Death was the knife.
A (INTPRTR) ‑ ‑ ‑ murdered by the knife but I don’t . . . . . . why.
A (SUSPECT) But I dunno who – who did that.
Q 351 Yeah. Thanks very much. The time is now 3 am. I’ll just get the detectives in charge –
to come back. So this is the appellant, the conclusion of the first interview early on the morning of the day following the discovery of the deaths. The interview finishes about 3 o’clock on the now Tuesday morning.
We say it is absolutely inconsistent with someone who has planned and set up a suicide by his family and we say that to suggest otherwise, that somehow by reverse psychology to suggest the opposite, that what he is doing is suggesting the opposite, “I don’t know who murdered my family”, cannot contemplate suicide, is specious. What he is saying there and at other points during the interview is totally inconsistent with a man who has murdered his family and then carefully and with calculation set up a scene to mimic a suicide. He said that not just to the police that morning; he said it earlier to a neighbour who would not be expected to repeat it. You do not set up a false scenario with a neighbour.
It is not clear how the prosecution say the appellant killed his family. It is not clear why and they cannot say why he killed his family. No expert called by the Crown at the trial put forward the mechanics of how it occurred. In fact, they put forward inconsistent versions if one takes Oettle one side, Professor Mason at the other. The best that we can gather from how the Crown say these events occurred are the questions that were put to Mr Velevski in cross‑examination and they are found at pages 711 and 712.
We have extracted a number of propositions that were put to Mr Velevski. The first was that he attacked his wife, Snezana, from behind while she was sleeping. This was a point made by Dr Oettle. He had her down over the side of the bed with her head near the bedside unit and off the side of the bed. Of course, Professor Mason had her prone or on her back in front. But this was the point that was put: it was a sudden attack upon his wife, that she was forced off the bed onto the ground and there her throat was cut. He is then said to have killed the children over the top of her, because only this will account for the blood of the children which is found on her back, say the Crown.
We know that all of these events occurred very close to the ground or that there was certainly no signs that they occurred otherwise than close to the ground. The Crown hypothesised in the questions put that, therefore, he must have used some device, such as a towel, to prevent excessive bleeding of the children. It does not answer the question, how he managed to subdue a six year old child and kill her over the body of her dead mother. It does not answer the question, why he would bother using some device to stop the spread of the blood. It does not answer how, if some device had been used, such as a towel or rag, it was disposed of, without leaving any trace – and we are talking any trace – of blood in the house.
GLEESON CJ: Do the same questions arise on the alternative hypothesis?
MR HAESLER: Of suicide, no.
GLEESON CJ: No, the hypothesis that it was the mother who had killed the children?
MR HAESLER: Yes. If the mother killed the children, it could have all been done in that small and constrained area. If Zaklina was first killed, the twins were nearby on the bed or in the cot, the suicide then taken place in that small area. There are questions that are raised as to how the blood of the children got onto her back, but they are the sort of questions that can equally be asked of both scenarios and they required, if speculation was to be entered into by the experts, speculation one way or the other, but they, in the final analysis, were but speculation. So, yes, for the event to have occurred as a suicide, Snezana’s suicide, it would have had to have occurred in that small area, otherwise there would have been blood elsewhere in the bedroom, at least.
Now, let us presume someone is setting up a murder to look like a suicide, there is simply no need to stack the bodies or move them around or clean up. There is no rational reason why, in a suicide scenario, the bodies had to be contained in that small area.
GLEESON CJ: Whichever of the competing hypothesis we are considering, it is probably not appropriate to attribute a high level of rationality to the behaviour.
MR HAESLER: That is true, on both scenarios. However, if it is a murder made up to look like a suicide, high level of rationality is probably not the correct term for what Mr Velevski must have done, but it certainly would have required a degree of calmness and precision to fix the scene so that it was as it was when it was found. It was, of course, done with such precision that it fooled Dr Bradhurst, who is a respected and well-known pathologist – he is regularly used by the police in New South Wales; that is not in dispute; he is called to the scenes of violent crime on a regular basis – and it fooled others.
So it was done with a degree of meticulousness and a degree of precision, and the cleaning up must have been done with a degree of meticulousness and precision that, if I might make a comment, was simply unbelievable. The Court might have experience, as I have, of teenage nose bleeds from children. You clean up afterwards and you are still finding spots of blood three weeks later. The cleaning up after the event was meticulous or, if Mr Velevski is a murderer, he is the luckiest murderer in the sense that he left no sign, and no sign on the light switches, no signs in the parts of the plumbing that were taken apart, no signs found by Detective Doherty in his meticulous examination of the home.
He had to, on the Crown scenario, have disposed at least of his clothing, perhaps a towel or some other device, which was used to restrain the bleeding of the children, so that it was restricted to essentially the left shoulder of the mother. Now, that does not make sense. It is clearly irrational to do that, but your Honour says he clearly was not rational, but there are elements of rationality if it was a murder.
As I understand the Crown scenario, he would have had to move the bed quite a considerable distance, something that it took a number of police to do, and they left marks when they did that. He would have had to have repositioned his children under his dead wife. He would have had to have done that in the area, even presuming the bed was moved some small degree and it could not have been moved very far because Snezana’s blood is found under the bed and on the side of the bed, consistent with her being killed very close to it. The pooling of blood, as you will see from the photographs, is very limited. You will see some marks where the castors of the bed rolled through the pooled blood when the police removed it and there are a number of police removing that bed and they did so with some care, and there was still some residue from their moving it. So he would have had to have done it in a way that did not leave any marks in repositioning the bed.
He would have had to have placed the knife under his dead wife in a position that fooled Dr Bradhurst, Dr Cooke and Dr Zillman as to its position. They said it is exactly or where they would expect it to be found. He had to have been smart enough not to have had it grasped in her hand, but having it lying falling on the others. That is where it was found, according to at least three of the experts, where it would be found if someone’s spinal cord had been severed by the last cut of the knife. Mr Velevski is either very lucky as a murderer to place it in that position or very knowledgeable. He is neither lucky nor knowledgeable, we say.
He had to have planned to some degree what he would do in advance and there is no evidence to suggest he was other than a man of absolute good character who had no propensity for violence and who, at least on the material that was called at trial, would genuinely respond to any problems with his wife by letting her go into her room by herself. There is no history of violence, there is no suggestion of violence, there is no suggestion of anger or rage. He was upset by his wife’s behaviour, he conceded that, and disturbed by his wife’s behaviour and what had occurred in the house before, but there is no evidence, none whatsoever, to suggest he was otherwise than a man of good character who was not prone to irrational rages or lack of rationality.
He had to have removed his parents, on the Crown scenario, so he could clean up the house. I will come to that perhaps when I come to the chronology. There is not much time to do that and although he ran into his father at 6 am and got his mother up, he was not at his sister’s until some time between 7 and 8, maybe 8 at the latest, 7.30 thereabouts. They lived in a suburb further to the south in Wollongong from where he lived. So it was not a question of getting the parents out within the space of five or ten minutes, it was at least an hour or so getting the parents out of the house.
He then had to set about making the house neat and tidy and seem neat and tidy. When I take you through the chronology you will see that in the morning at least he did not have very much time to do that because he was going to other places. He may well have had time later on, after 12 o’clock and before the police came and before he went to his neighbours at 2.40, but that was at a time when he had already alerted others to the problem with his missing wife. So he took an incredible risk in doing that that someone did not call the police or did not come around to the house.
It is said, and was put to him, that he claimed he could not open the door so someone else would discover the bodies. Well, Justice Bruce James in the Court of Criminal Appeal found that he knew how to open the door. With the greatest respect to his Honour, there was no evidence before the jury and Justice Dunford instructed the jury that he may not have known how to open the door. The door itself has - and some may be familiar with it. It is not a key, it is just a little slot where, if you insert something like a stick or a screwdriver, you can activate the locking mechanism from the outside.
CALLINAN J: Was there not some evidence that a six-year-old child - it might have been the daughter - had actually been able to open the door when it was locked?
MR HAESLER: If you know how to do it, your Honour, it is the simplest thing to do.
CALLINAN J: No, but a six-year-old child did it, I think. Is that right?
MR HAESLER: Yes, there was some evidence that she had been locked in the toilet and that the whole purpose of having these locks is for that reason; that if a child gets locked in the toilet you can unlock it from the outside. It may have been the other way round, but she was capable of unlocking the door as some childish prank, I think, was the - she had been taught or she knew how to do it. Once you know how to do it, it is very, very simple. But what we have here, and we rely on, is two young police officers were the first on the scene and two young police officers had to get into that room, and two young police officers saw the lock and asked for the key and, of course, there is no key and it is not even a key hole, and the two young police officers beat the handle and the door off with a hammer eventually. Not everyone, as a matter of common knowledge, knows how to open these locks.
You also had to be able to lock the door from the outside which, once again, is possible, according to the locksmith, but requires a degree of skill and manipulation. That had to have been done, obviously, after he had cleaned up to some degree otherwise we would have found, or the police would have found, Detective Doherty would have found in the door and on the handle blood residue, or at least some sign. Mr Velevski, of course, denied each of these propositions.
So it was never fully explained to the jury how he did it. The Crown focused upon negating suicide. Called Dr Bradhurst to suggest suicide. They really had no alternative there and then called the rest of their case to negate suicide. The question of how he killed his daughter - or one of them had to be killed before the other, the daughter or the wife, without alerting the other and without creating a scene that would have been heard by at least the parents and possibly the neighbours, was never answered. How he immobilised his wife and held her in a position so that we had arterial spurting found on the left and the right without, as one would expect if someone is holding a person’s head and slashing the throat, the spurt to actually go in an arc, was not explained.
How he managed to do that without getting anything on himself and without dripping on the carpet or anywhere else was not explained. He had to leave Zaklina - and there was some point about her left leg being in the air - he had to leave her in a position where the rigor set in so that she perfectly matched where she was found with most of her body but somehow her leg was unusual. He had to have not left a bloody print anywhere and there is a mark found on the left leg but nowhere else. No one says whether that was Snezana’s or not; the possible exception was Dr Oettle who postulated about it.
There are bloodstains found on the cot, spatter which is said to come from Zaklina. So if he is cleaning up and did not touch the cot – or did touch the cot, he has had to have cleaned up around these. There is no evidence that anything was cleaned or moved through the blood other than movement of the bodies found at the scene. No evidence of a fifth person. In stacking the bodies, where is the bloody footprint, where is the mark? How did he stand over them to kill, or stand over to create the situation after the event? Obviously, he cleaned up. No drip, no trace, no stain, no residue was found. He did it so comprehensively that the blood spatter of his victims was left, but nothing from him.
Now, the bed was not quite right, on the Crown scenario, and her left arm has a mark in it to show she moved and there are smudges on her thigh. There is clearly movement of the bodies. One of the key questions was movement of the bodies after her death, before her death, or during the moments of her death. The marks suggest movement, but it takes an extra step to show that they involve and reveal the imprint, or the import, or the intervention of a fifth party. It is striking – and it perhaps striking if you look at photograph 13, which is at 987 of the appeal book. It shows the bodies in a very confined space.
It is true that a suicide in that position is unusual and is clearly unusual because it is so confined. But the same question has to be raised in relation to a murder: it is so confined, how was it accomplished? The Crown do not have to show how it was accomplished, but the fact they cannot show how it was accomplished without leaving a trace is telling. One has to now, on the Crown scenario, put yourself in the position of the murderer. A murderer is now placing a knife under Snezana’s right shoulder. He is then confronted with a glaring anomaly.
Now, no person who did this would be rational, but he is clearly and calmly organising the scene and there, staring him in the face, is the anomaly which the Crown say ends all anomalies, and that is, blood on Snezana’s back. He leaves the scene with blood on her back. He has carefully set up everything else, but he has left that, and it would have been staring him in the face, if he had have killed her – he stooped down to do it. Why leave that? Why not rearrange the bodies so that she is lying on her back?
As your Honour the Chief Justice said, one cannot expect rationality, but nevertheless it defies even the commonsense one could attribute to a rational murderer, because this man is meticulously setting up the scene to look like a suicide. Or is this a random act of chance following Snezana’s suicide? They are the options. One cannot, from a defence perspective, say exactly how Snezana did it. To a degree, the defence case was put in the position of trying to answer that question and being shown to be lacking, without correspondingly putting the prosecution to the same rigorous examination.
Now, one cannot go back again, but one can ask this Court to ask those important questions. In the respondent’s written submissions there is, at 8.7, what appears to be a criticism of Detective Doherty’s examination of the house. He was the key forensic person who went over the house. In our reply we have characterised that submission as mischievous, but only if it is really seriously saying that there was not a meticulous and thorough examination of the house.
The additional transcript contains more transcript from Detective Doherty which shows that he did his job as a professional would be expected to do. He looked and took apart plumbing, the washing machine, he took away plugs, hair from the sink, all items that he felt could contain blood; presumptively tested for them. If there was a positive presumptive test then did proper and further tests for blood. He did a polylight examination. That is not a presumptive test for blood, it is there to pick up any stains.
If stains are found - and one would expect, and it is commented on by Justice Kirby, that cleaning up blood would leave a stain - then they will be tested. Nothing was found. He took apart the light fittings. No blood was found. So, it does not take much imagination to say that the person who murdered – if murder it was – these people would have touched the door, would have touched other parts of the room, would have touched fittings, would have dripped blood or had the possibility of blood dripping from their clothing or any other item they used to constrain the blood through the house, would have cleaned up the house.
Detective Doherty took away the steering wheel covers from the car because the car obviously would have been used to dispose of some of these items. The examination was meticulous. The polylight picked up no stains, no marks, nothing whatsoever, so there was not any need for further testing for blood because there was no even preliminary indication of any form of stain. In terms of the testing of the clothing of the deceased, blood was found in certain randomly selected areas. There is evidence of Ms Beilby that she was asked to do more testing and at page 135 she points out that for economic reasoning that testing was not done.
The Crown cannot then not do the testing and say, “Well, where we found it it was more Snezana’s blood than others, but we did not do the rest for economic reasons”. It is not for the defence to have done that sort of testing. It was requested. It was requested, I understand, by the DPP, from the passage at 135, and it was not done. What do the defence say? The defence put forward what evidence they could find as to Snezana’s medical and mental state prior to the incident. They put forward what evidence they could find as to the mental state of her close relatives. Snezana had married young. It was an arranged marriage done – according to tradition.
GUMMOW J: How old was she when she married?
MR HAESLER: Eighteen, as I understand, 18 or 19. She and her husband worked hard. She had her own job until the birth of her child or until certainly she as pregnant. They bought one home, bought a new one. It is a proud and substantial home.
GUMMOW J: How much older was the husband?
MR HAESLER: About 10 years, but I am guessing, your Honour. It is in the chronology his date of birth. Snezana cared for that house. She cared for her parents‑in‑law, her children and her husband. He was a man who went regularly to work at BHP, often working triple shifts. Her mother, not unusually, was an ever present part of her life, and there is nothing unusual in that. The evidence the defence were able to find, at least by the end of the trial, was that her mother did take antidepressants and that her brother, Mendo, had some psychiatric problems.
Justice Grove played those down, in his judgment, but with the greatest respect to Justice Grove, you do not end up in the acute psychiatric ward at Shellharbour Hospital unless you have an acute psychiatric problem. It is not a rest home. It is not a place you go just because you have got a minor difficulty in your life. Mr Odgers has gone to the chronology. He was only three years older than her at the time of marriage.
GUMMOW J: He had arrived in Australia when he was 22 years old?
MR HAESLER: Yes, 20. She had lived here most of her life. He came out when he was about 20.
GUMMOW J: And she had arrived here at an earlier time, had she?
MR HAESLER: She may, in fact, have been born here, your Honour.
GUMMOW J: It does not appear from the chronology.
MR HAESLER: No. She may have been born here. Certainly her parents came from what is now known as the former Yugoslav Republic of Macedonia. Just on that point, there was some dispute about what language was being spoken. If you ask a Serbian, “I’m speaking Serbian”, if you ask a Macedonian, “I’m speaking Macedonian”, but they can both talk to each other and understand, at least closely, what they are saying, but they will not admit to speaking the other’s language.
GUMMOW J: But there is more than one language.
MR HAESLER: There is more than one but it is a variation, I suspect. Certainly there is more than one script, which is the biggest discrepancy.
GUMMOW J: Yes.
MR HAESLER: There is no history of violence, there is nothing that he was not other than a loving and caring provider for his wife and family. That is how he presented himself at trial and that is how the trial ended. We know something happened on the weekend. We know Snezana was unhappy, we know Mr Velevski was upset and we know that in the past, from the evidence at least of other family members, she had locked herself in her room on prior occasions. There was evidence that while the family were at Cringila the parents had moved out for three days to give her some respite. They had done that of their own volition.
We know from the evidence of Dr Wilcox that postnatal depression was a possibility. The timing was about right: three months after the birth of the twins. We know she had had problems with both pregnancies, including quite lengthy periods of hospitalisation. She was a young mother with two young babies and a six‑year‑old. Her parents‑in‑law, including a mother‑in‑law who was having at least the signs of age and illness taking over – she was no longer able to assist in running the house.
It is often said if people saw the obvious before suicides, suicide would not be the problem. Almost invariably in a case of suicide, everyone says, “Well, there might have been some problems but I didn’t know. If I’d known, I would have done something”. Anyone who has been touched by suicide will understand that remark. There were signs, but they were not obvious, or bleedingly obvious, but they were there. The defence found those signs. Nothing had been obtained by the police prior to the trial and nothing that may have indicated anything about Snezana’s mental state was put to any of the experts when they came to make their assessments.
If Velevski and his father are accepted – and that may be a question – the crisis was precipitated by a refusal of the mother‑in‑law to look after the children, a rather minor event to tip something off but many domestic disputes are tipped off by such a minor thing. If the Crown scenario is right, something happened in that family to turn Mr Velevski homicidal. There is simply no evidence that anything that occurred that day could have had that effect upon him. The same can be said, what turned Snezana suicidal?
HAYNE J: And homicidal.
MR HAESLER: And homicidal, so far as the children were concerned. Dr Wilcox gives a fairly lengthy opinion and it is ‑ ‑ ‑
GAUDRON J: There was evidence that she had threatened to leave and to take the children?
MR HAESLER: She had threatened to leave and take the children, but that came in two different aspects: one could be the ambiguous one: “I am going somewhere, I am going to take the children”, it could have been a hint; it could have been something like, “I’m leaving, I am going to move to a flat”, she certainly has said to have – and once again, this comes from Velevski himself and his father, and the Crown relied upon this, it is not in dispute.
Yes, as Mr Odgers reminds me, it is very surprising he would be volunteering this, if he is creating a situation which is setting up a suicide. Perhaps, of course, he is doing exactly the opposite, to try and plant a false trail, but, yes, there was some evidence that she was talking about leaving. At various times he says, “I thought the marriage was over. I thought she would leave.” That possibly could provide a motive, although it was not run seriously at trial for killing, but that does not explain the children. Dr Wilcox put it down to excessive love.
“I am going to suicide. I am going to be with my children; my children will be with me.” She looked at the position of the bodies and said that is what occurs to her, she did not put it any stronger than that, but she did put it down to excessive love, and that is often the excuse given for suicides which are preceded by the death of children. Very rarely, in those situations, is there hatred homicidal intent so far as wishing to snuff out the lives of children with malice. It is often done from misplaced and misguided love.
GUMMOW J: Now, Mr Haesler, looking, for example, at the photograph at 988, on the hypothesis of a killing of the two children there and the slitting of the mother’s throat by herself, was there any discussion in the evidence as to the quantity of blood one would expect?
MR HAESLER: Dr Oettle ‑ ‑ ‑
GUMMOW J: Particularly when carotid artery had been slit.
MR HAESLER: There were two points to the bleeding by bodies. In terms of the arterial blood, if there is an embolism in the heart, air gets into the heart and, contrary to what the Crown say in their submission, it can happen; it is not something that always happens. But if air gets into the heart, the heart stops beating, arterial blood will stop spurting, the arteries will retract, and there will not be a large amount of blood.
GUMMOW J: There will be some coagulation.
MR HAESLER: There will be some coagulation. However, there is not, and there is constant spurting of arterial blood, yes. In terms of the jugular vein, venous blood, it will continue to flow until there is coagulation. Now, in terms of the quantity of blood, if the children were killed first and placed somewhere in the vicinity – and one cannot say whether the twins were killed first or whether Zaklina was killed first. Professor Mason accepted that their blood, if laid down, could be overlaid by the blood flowing from Snezana.
Dr Oettle discounted that. He said all the blood is Snezana’s, and certainly, where testing was done, it was Snezana’s, although there were some that they could not get readings from, that Miss Beilby did not test at all. And everyone commented on this, and Mr Raymond, the blood splatter expert – he is probably the best of the experts – said it is very constrained. What we have is the blood that is shown there, and then of course there is blood on the underside and side of the bed, which was at least in that vicinity. On any scenario, it is an extremely constrained area for the blood.
GUMMOW J: So there is some coagulation, is that the theory?
MR HAESLER: In fact, Mr Raymond says that there was sufficient blood laid down on the carpet for - blood from, at least, Snezana - to have hit that blood and bounced up. So blood would have had to be laid down to cause that otherwise it would have just been absorbed by the carpet. So a fair bit of blood was deposited, a lot of blood. Now, that could have come, we say, and there is certainly evidence Professor Mason agrees, could have come from the twins and Zaklina, and then Snezana’s blood was laid down over the top of it.
GUMMOW J: Is there any estimate of the volume of blood?
MR HAESLER: No. Certainly, people commented that there was a lot because when the carpet was removed there was still uncoagulated blood underneath it.
GUMMOW J: I was wondering about that. What is underneath the carpet? There is some underlay, is there?
MR HAESLER: I cannot answer that question, your Honour. I do not think - I have no memory of reading anything about it. But, certainly, they did find, when they came to remove it, that there was a lot of blood there. But the point we make in terms of a homicide, to simulate a suicide, you do not need to stack the bodies. You do not need to go to that much trouble. It may show irrationality, but you do not need to go that far. What we have, however, is Mr Velevski in a situation of confrontation. He did not, as is so often the case, respond immediately with violence. There is no indication of that and he did comment to police, and this is at page 1015 of volume 5, the question and answer 61:
Did you try and speak to your wife through the door?
A (SUSPECT) No.
A (INTPRTR) No, no, I didn’t. Always when something like that happen, I don’t try to upset her more. If I can’t settle her down at that moment, I don’t try.
It could be a self-serving statement, of course, but that shows the pattern of behaviour which is consistent with what he did which was to retreat to his daughter’s room. Snezana emerges only for a short time herself, if one accepts the evidence of Petre Velevski. If there is any hint that Petre and his son collaborated to manufacture a story, surely it would have been revealed by the surveillance tapes that were placed in the house.
It might be, as the Crown say in their submissions, that if Velevski alone did the killing, he would not mention it to anyone so one would not expect to find anything on the tapes. But if there had been any collusion whatsoever, one would have expected to find it on those surveillance tapes and there was nothing adverse to the appellant emitted from those tapes. So she only emerged from the room for a very short time so far as any witness is concerned.
As I have indicated earlier, the lie, his statement that he was in the room, comes primarily from him. There would have been no problem for a calm and calculated individual who committed this homicide to do other than calculate a lie that was both believable and fitted the pattern of his previous behaviour. But he, himself, accepted that it was very unusual. “I have worked triplers”, somewhere he said, “and I have never slept that long”. That all came from Mr Velevski.
GLEESON CJ: Just excuse me a moment.
MR HAESLER: Yes, your Honour.
GLEESON CJ: Yes, go ahead.
MR HAESLER: Once again, a very lucky murderer, Velevski, on this scenario, has Dr Bradhurst fix the time at 9 pm to 5 am and that was not in dispute by any of the experts as to the time of death. None of his lies, as Mr Odgers has made the point, really cover him for that period of time. If he had said, “I got up at 2 o’clock to go to the toilet”, it would not have been useable in any way as a lie exhibiting consciousness of guilt. His failure to say that is relied upon by the Crown to show his admitting to doing something unusual. That is the oddness of the Crown’s response, both at trial and on this appeal, to the words and actions of Mr Velevski. He does not do and say what you would expect a murderer to do and say. Therefore, he must be a murderer and is lying to cover up his murderous activity.
One would expect a murderer to say, “Well, I went to bed about 8 o’clock”, and if there is any hint that he may have been seen by neighbours in the house, say, “I did get up at 2 am to go to the toilet, but I did not notice anything”. But, of course, he does not, he says, “Something very, very unusual happened to me, something that had never happened before, I went to the room and I slept longer than I have ever slept before”. He did not say he slept the whole time, but he certainly did something he had never done before. Now, his wife, on the evidence of the father, retired to her room for most of that day with the twins, came out only around 8 o’clock, fixed some bottles, grabbed her daughter – “grabbed” is a loose term – took her daughter back into the room. So she was there for most of the period, at least up until the deaths.
So what is unusual for Velevski and is relied upon to show he is guilty equally applies to his wife, Snezana. Her behaviour, if that analysis is used, is unusual, and it is incongruous, we say, for the Crown to rely upon the statements of Mr Velevski as indicating a lie and indicating his cunning and planning and that he is a murderer, when he does not do the things that one would expect a cunning and planning murderer to do, such as saying, “Yes, I was there around 8 o’clock and I went to bed about then, I got up at 2 o’clock to go to the toilet”.
How the appellant, how it was put it at trial, did the suicides occur. Well, the obvious answer is, we do not know. Dr Zillman, at length, put forward an hypothesis and Dr Bradhurst was taken to hypothesis – I use the term advisedly – in cross‑examination by the Crown. Of course, he was being led in-chief by the Crown that there is an element of cross‑examination creeping into the Crown’s questioning of him.
What we say is possible and rational is this, that Snezana was suffering depression, had resolved to kill herself, had resolved that she would be with her children and her children would be with her. They were her children and they were to be together. That she killed Zaklina. In the process, Zaklina’s hands came in contact with the knife and may have caused some injuries, minor, because they only came up on the second post‑mortem, to the wrists of her mother. This all occurred in that space beside the bed. It may be that Snezana did not get off her knees when this occurred. She killed the twins: they could have been on the bed within easy reach; they were placed on the ground. All these events took place reasonably close to the ground.
At some stage, one of three things happened. The most likely is that Snezana lay down in the blood that had previously been deposited by her children on her back, at least so that her shoulder absorbed some of the blood from the children.
Dr Bradhurst also stated, in his opinion, and it was only his opinion based upon the questions asked of him by the Crown, that she may have held her dead children to her shoulder. Now, Dr Wilcox gave evidence about love and why mothers kill their children. If it was from excessive love, then a final embrace is not out of the question. If those children had been killed above her back, as the Crown state, one would not have expected the blood to all be pooled or, at least, primarily over the left shoulder. One would have expected far more random pattern. I say that advisedly because no grid pattern in testing of the back of the matinée jacket was done.
He was taken further by the Crown Prosecutor and asked to hypothesise could the children have been killed while at the shoulder, and he accepted that was a possibility and it was very good cross-examination because it took that possibility to its furthest boundaries. But his primary statement was the dead children were held to the shoulder.
Snezana on the defence hypothesis had killed her children; she had to die. She had to kill herself. She cut the left side of the throat. She lay down expecting to die. The children were near her. The bed may have been displaced, and we are talking centimetres. I will take you to the exact reference to that that I could find. Her left arm may have been lying in her pooled blood or the pooled blood of others, and she did not die. The horror.
GUMMOW J: Or did not lose consciousness.
MR HAESLER: Or did not lose consciousness. The horror of that. You have slaughtered your children. You are intent upon killing yourself. You have inflicted a horrendous wound upon yourself. You may be slowing bleeding to death, but you are still conscious. It is not implausible or, we say, improbable that she would then have found the reserves of strength necessary to inflict the final fatal wounds.
Dr Zillman - and it is very hard to read from the transcript - makes a comment, and this where he may have lost the jury and I hope I do not lose your Honours, but he demonstrated with a little plastic knife how there is a cut that way and then a cut to the side. He talks of the flicking of the wrist. What we have are two types of wounds: one inflicted with the slash; one the more traditional stabbing-type motion that one sees with a knife down into the right-hand side of the throat. She is lying propped over her children. One nick into the spine. The second goes between the gap in the bone and the cartilage, severs the spinal cord, dead.
GUMMOW J: Now, is the photograph at 991 the knife in the position it was actually found?
MR HAESLER: Found, yes, your Honour. Now, between those cuts, while she is still conscious, what needs to happen ‑ ‑ ‑
GUMMOW J: And it had her fingerprints on it?
MR HAESLER: The handle of the knife had ridges of a fingerprint but they could not be identified, which puts paid we say to the proposition that the knife had been cleaned, and that is in the additional transcript. Detective Moffitt gives evidence of finding a partial but ‑ ‑ ‑
GUMMOW J: It was a knife from the kitchen, was it?
MR HAESLER: Yes. Between that time, what would Snezana need to do? There is evidence that the body ‑ ‑ ‑
GLEESON CJ: Between what time?
MR HAESLER: Between the time of the first cut and the second. So, she has inflicted a wound to the left side of her throat. She is conscious but not dead. The evidence, as I understood, up to three minutes but probably less than that because – and this is the question that Zillman raises of the drying of the blood. Between the first and second cut she needs to do two things: she needs to push the bed back hard up against the wall. At some stage, where the blood is laid down, the top right of the bed has come away from the wall but only a small amount of distance because some blood has got up underneath it which would not have got there if the bed had have been flush up against the wall.
The bed is on casters. The bed head is fixed and the bedside units are held in place, so they do not move, but the bed is on casters. It requires lifting of the left arm a slight amount and a push forward, shown – if I take the Court to photograph 32 at 995, you can see where the bedside unit is. Photograph 34 is perhaps a better photograph at 997. If the bed is hard up against the wall some of that splatter would not be there. There is no contest there. But, if the bed is only slightly out, then that splatter could get there.
The bed cannot have moved very far. It cannot have been pulled out a metre or half a metre because otherwise you would not get Snezana’s splatter underneath the…..and you might have a look at photograph 28 on 994 which shows the blood on the side of the bed and photograph 13 which shows the blood on the side of the bed. The evidence of Mr Raymond is that blood was also found as if it hit the ground and bounced up underneath the bed. So, if the blood is deposited on the wall the bed would have had to have been at least some distance out. The only evidence of centimetres that was not explored in any detail was given by Mr Raymond and I will give your Honours that reference.
GLEESON CJ: There were two things she had to do. One was move the bed. The other was what?
MR HAESLER: Move the children.
GLEESON CJ: Move the children?
MR HAESLER: If only slightly, because there is evidence, if one looks at photograph 37, that something has moved through the blood that is deposited on the bedside unit.
GLEESON CJ: Move all the children?
MR HAESLER: One would not have to move them very far, but if the children ‑ ‑ ‑
GLEESON CJ: Do you have to move them all?
MR HAESLER: Not in terms of lifting them off the ground.
GLEESON CJ: Would you have to move them all?
MR HAESLER: You would certainly have had to have moved Zaklina slightly and the twins further up against the bedside unit, because where the blood is deposited on the bedside unit is Snezana’s. The twins were blocking that when they were found. But what we are talking about in terms of the bed, we say, is a movement that could be, by lifting the left arm, just pushing forward, would push the front of the bed back against the wall, bringing the foot of the bed towards her. In terms of moving the children, it is the movement of the arms, just to bring the children from where they are lying and bleeding in the pool of blood closer in under her. In doing so, the children’s jumpsuits come up against the bedside unit. So we are talking very small movements, but movements nevertheless. Between the first and second wounds, those two activities had to have occurred.
We say, if it is consistent with suicide – and it is consistent with suicide – she has gathered the children in under them in the position that they are found. It is the final embrace. She has died with her children. They are together. That could have been manufactured in theory, but how is a question that was never answered. We cannot answer every question because we were not there, but those things, the slight movement of the bed,
the slight movement of the children, was possible in the period of time between the first cut while still conscious and the second cut which was ‑ ‑ ‑
GUMMOW J: Why would it be necessary slightly to move the bed?
MR HAESLER: It was not necessary to move the bed. It was simply a matter of, the bed is on castors, if she raised her left arm and pushed against the bed, not pulled, pushed against the bed, the bed would slip forward. The Crown give their evidence “pulled”, and that would require a quite different action, but to get the bed back against the wall, if one had to demonstrate – but if the bed is pulled out at an angle from the wall, you push here and you will pull it back in. The force is forward towards the wall, and that would explain two things.
It would explain how the bed was pushed back and it would explain the photograph which shows that – and it is shown in photograph 16 on 988, and perhaps better in 989, that on Snezana’s left arm is a horizontal mark or a straight‑line mark which indicates that her arm, at some stage, has lain in blood.
GLEESON CJ: How long do you expect to require?
MR HAESLER: I am sorry, how long?
GLEESON CJ: Will you need to finish your submissions?
MR HAESLER: Three-quarters of an hour, half an hour, probably three‑quarters of an hour ‑ ‑ ‑
GLEESON CJ: How long do you think you will be, Mr Blackmore?
MR BLACKMORE: Subject to questions, obviously, not all that long. Maybe half an hour, not much longer. It really depends upon ‑ ‑ ‑
GLEESON CJ: No, I am only asking these questions for the benefit of the people in the next case, that is all.
MR BLACKMORE: I am sorry, your Honour. It really depends on, to a certain extent, what this evidence is and how much I have to go to of it.
GLEESON CJ: All right. We will adjourn now and resume at 9.45 tomorrow morning and the next case in the list will be marked not before 10.45.
AT 4.20 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 31 MAY 2001
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