//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2014] WASCA 207
Court of Appeal (WA)
2014-11-10
Martin CJ
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : MACK -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 207
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Citation : THE STATE OF WESTERN AUSTRALIA -v- MACK [No 2] [2012] WASC 445
Criminal law - Appeal against conviction - Appellant convicted of murder after a trial before a judge alone - Appellant suffered from autism spectrum disorder - Appellant's fitness to stand trial - Consciousness of guilt lies - Whether evidence of a test to calculate water usage at residential premises was admissible or should have been relied on by the trial judge - Whether the conviction for murder was, having regard to the evidence, unreasonable or unable to be supported
Criminal law - Appeal against sentence - Murder with an intention to kill - Life imprisonment with a minimum term of 20 years - Whether the minimum term was manifestly excessive
Allami v The State of Western Australia [2013] WASCA 230
Atherden v The State of Western Australia [2010] WASCA 33
Austic v The State of Western Australia [2010] WASCA 110
Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323
Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Butler v The State of Western Australia [2010] WASCA 104
Cockram v The State of Western Australia [2011] WASCA 179
Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Dodd v The State of Western Australia [2014] WASCA 13
Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193
Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328
Greer v The Queen (Unreported, WASCA, Library No 960120, 6 March 1996)
Hedgeland v The State of Western Australia [2013] WASCA 97
Johnston v The State of Western Australia [2012] WASCA 18
Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439
Khan v The State of Western Australia [2013] WASCA 193
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389
Mikhail v The State of Western Australia [2012] WASCA 200
Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454
Neumann v The State of Western Australia [2013] WASCA 70
Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Pedersen v The State of Western Australia [2010] WASCA 175
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Prestidge v The State of Western Australia [2014] WASCA 16
R v Ciantar [2006] VSCA 263; (2006) 16 VR 26
R v Hartwick [2005] VSCA 264; (2005) 14 VR 125
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
R v Onufrejczyk [1955] 1 QB 388
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
Roberts v The State of Western Australia [2007] WASCA 48; (2007) 34 WAR 1
Silva v The State of Western Australia [2013] WASCA 278
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Stinson v The State of Western Australia [2014] WASCA 72
The State of Western Australia v Lee [2013] WASCA 246
The State of Western Australia v Mack [2012] WASC 127
The State of Western Australia v O'Kane [2011] WASCA 24
The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wheeler v The Queen [No 2] [2010] WASCA 105
Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91
1 MARTIN CJ: These appeals against conviction and sentence should each be dismissed for the reasons given by Buss JA, with which I agree.
2 BUSS JA: This is an appeal against conviction and sentence.
3 On 23 November 2012, the appellant was convicted, after a trial in the Supreme Court between 6 - 9 November 2012 by McKechnie J alone without a jury, on one count in an indictment.
4 The count alleged that on a date unknown between 18 December 2008 and 29 December 2008, at Mount Hawthorn, the appellant murdered his mother, Ah Bee (also known Pauline) Mack, contrary to s 279 of the Criminal Code (WA) (the Code).
5 His Honour sentenced the appellant to life imprisonment and set a minimum term of 20 years before he would be eligible to be considered for release on parole. The sentence was backdated to 26 August 2010, being the date on which the appellant was taken into custody for the offence.
6 An overview of the State's case at trial is as follows.
7 The deceased, Mrs Mack, was born in Malaysia in about 1954. She was adopted at the age of 7 or 8 by Maria Tan. Ms Tan had a biological son, Harry Chew. Mrs Mack regarded Mr Chew as her brother. She continued to reside in Malaysia until the early 1980s when she migrated to Australia and married Donald Mack.
8 The marriage produced two sons. One was the appellant, Brent Mack, who was born on 24 May 1985. The other was Adrian Mack who was born on 15 May 1987. So, when the appellant allegedly murdered his mother, he was aged 23 and Adrian was 21.
9 Mrs Mack lived a very private life in Perth and had only spasmodic contact with extended family members and a few friends.
10 Mr and Mrs Mack lived in a home at 144 Fairfield Street, Mount Hawthorn. The appellant left the home but returned in January 2008. Adrian left the home as a result of a family dispute and did not return.
11 On 9 August 2008, Mrs Mack's husband died. She continued to live in the family home at 144 Fairfield Street. Mrs Mack inherited a substantial amount of money and other assets from Mr Mack's estate.
12 The State contended that the appellant had a motive to murder Mrs Mack. The prosecutor said in opening:
The prosecution case is that [the appellant] killed his mother by some unknown means, some means as cannot possibly [be] discovered, as matters stand. He did that though to obtain her money and her property and his motive was strong because he did obtain her money and property. He did that by falsifying her signature, by transferring money from her accounts into his own account. In particular, your Honour will hear from a financial investigator giving expert evidence which is not contested, that in the period from 29 December 2008 until 30 June 2010, more than $225,000 in cheques were drawn on Commonwealth Bank accounts of Ah Bee Mack and those funds were traced to St George Bank accounts held in the name of [the appellant]. ... I mentioned there were significant properties and, of course, [the appellant] remained staying alone until his arrest at the Fairfield Street address. His intent, on the prosecution case, was not simply to obtain the money which he did, in fact, obtain but also to succeed to the various properties. The commercial properties, in particular, after [the appellant's] father was no longer able to work, provided a substantial income (ts 145 - 146).
13 So, the State alleged that in 2009 and 2010 the appellant, having killed his mother, stole substantial amounts of money and other property from her estate, and repeatedly forged her signature on cheques and other documents.
14 On 28 September 2008, Mrs Mack had lunch with her brother, Mr Chew, and his wife, Nellie, at their home. Mrs Mack was well and, to Mrs Chew's knowledge, had never been ill. Mrs Mack's adopted sister, Nancy Tan, was also at the lunch.
15 On 10 October 2008, Ms Tan and Mrs Mack had a lengthy telephone conversation. Mrs Mack was happy and positive in her outlook. She told Ms Tan that she wanted to get employment as a carer. They discussed the possibility of travelling together. They agreed to keep in more regular contact. That was the last occasion on which Ms Tan heard from Mrs Mack.
16 In December 2008, Mrs Chew sent Mrs Mack a Christmas card, as usual, and an invitation to come to the Chew home for Christmas lunch. Mrs Chew received no reply.
17 On 13 January 2009, Ramon Rudzinski was driving a truck on Leach Highway towards Fremantle. A faded grey/blue Holden Commodore sedan collided with his truck. The male driver of the sedan told Mr Rudzinski his name was 'Mack'.
18 On 10 January 2009, three days before the collision with Mr Rudzinski's truck, the appellant had forged Mrs Mack's signature on a change of ownership document relating to the Holden Commodore sedan. Later, the appellant lied to police about the transfer. He asserted that Mrs Mack had instructed him to transfer the sedan after the accident.
19 On 10 May 2009, and again on 27 September 2009, Peter Beckton, who assisted Mrs Mack with the leasing of her commercial properties, sent a lease renewal document to 144 Fairfield Street. The appellant forged Mrs Mack's signature on each document and returned them to Mr Beckton. Later, Mr Beckton attempted, unsuccessfully, to contact Mrs Mack by telephone. He then went to 144 Fairfield Street and spoke to the appellant, who told him that Mrs Mack had gone to her family home overseas. The appellant told Mr Beckton that he did not know when she would be returning to Australia.
20 In early 2010, Mr Chew was diagnosed with cancer. On 5 July 2010, Mr and Mrs Chew wrote to Mrs Mack and informed her of the diagnosis. Although their contact was infrequent, Mrs Chew became concerned about Mrs Mack because she believed the news in their letter would have caused Mrs Mack to enquire about Mr Chew's welfare. However, Mrs Mack did not contact Mr or Mrs Chew.
21 On 25 July 2010, Mr and Mrs Chew went to Mrs Mack's home at 144 Fairfield Street. Mrs Chew noticed that the house and garden were in a 'messy' condition. Her experience was that Mrs Mack kept a very neat house and garden. Mr and Mrs Chew spoke to the appellant and to neighbours with a view to ascertaining Mrs Mack's whereabouts. Neighbours informed Mrs Chew that the young man who lived at Mrs Mack's house (they did not know the appellant's name) had told them his mother had returned to China. As I have mentioned, Mrs Mack was in fact from Malaysia. The appellant told Mr and Mrs Chew that his mother had started a new life, had new friends and wanted to be left alone. He was adamant that his mother wanted nothing to do with Mr and Mrs Chew. He refused them entry to the house. At the trial, Mrs Chew gave evidence about their conversation with the appellant:
[The appellant] told us [Mrs Mack] doesn't want to see us. She has gone to live somewhere else. Things had changed since his father died and she doesn't want to see anyone.
I asked, 'Who is she living with?' [The appellant] said, 'Someone she met in 2005. Mum doesn't want anyone to know'. I told him we have to hear from her. It wasn't enough, what he said, we had to hear from her but she didn't want to see us. And if that was the case that was okay but we had to hear it from her.
He said he would talk to her. We asked him how she could be living on her own with no one and no income. [The appellant] said it wasn't true that she had no income. I asked him about his dad's relatives and about his brother, Adrian. [The appellant] said his dad's relatives were only interested in ripping us off and that he hadn't seen Adrian for quite some time.
We told [the appellant] that we had to see or hear from Pauline and then it would be fine. He said he would go and see his mum and try and get her to phone. He said, 'I'll talk to her but I can't promise' (ts 152).
22 On 1 August 2010, the appellant telephoned Mrs Chew. At the trial, Mrs Chew gave this account of the conversation:
[The appellant] told me that he saw his mum and that she was angry that we were trying to get in touch with her. She doesn't want to see us. He told me his mum was having emotional problems.
When he said that I said, 'She may need help'. I told him that if we didn't get a satisfactory answer about it all we may need help from the police. He said he would try and he would ring me back. He rang back at 10.55 and said he had told her that she must call us next week. He gave me his mobile number; she never called (ts 153).
23 A few days later, a 'thank you' card addressed to Mrs Chew was posted to her address. The card purported to be from Mrs Mack. It contained a message thanking Mr and Mrs Chew for their concern about her and stating she had a new life and wanted to be left alone. Mr and Mrs Chew did not recognise the handwriting on the card as Mrs Mack's. According to Mrs Chew, the text of the message was inconsistent with the manner in which Mrs Mack normally expressed herself.
24 The State contended that the appellant wrote and sent the card to Mr and Mrs Chew. His fingerprint was on it.
25 On 6 August 2010, Mr and Mrs Chew contacted the police and reported Mrs Mack as a missing person.
26 On 7 August 2010, police attended at 144 Fairfield Street but no-one appeared to be at home.
27 The following morning, 8 August 2010, police returned and spoke to the appellant. At the trial, Constable Bear gave this account of the conversation he and Senior Constable Ball had with the appellant:
I said, 'Are we able to speak to your mother? Is she home?'
He said, 'No, mum moved out the Sunday before Christmas in 2008'.
I said, 'Are you able to tell us where your mother is at the moment'.
He said, 'No, I cannot'.
I said, 'Are we able to call you mother so we can speak to her'.
He said, 'No, I don't have the phone number for her'.
Senior Constable Ball said, 'How do we contact her?'
He said, 'I can't say'.
Senior Constable Ball said, 'All we need to do is make sure she is ok and then we can close the job off. We won't disclose her location to anyone'.
He said, 'I can't do that I made a promise'.
I said, 'Are you able to tell us whether you spoke to her last night, last week, last month?'
He said, 'Sorry I cannot'.
I said, 'All we need to do is make sure she's ok and that's it'.
He said, 'I was a missing person once and the Police never sighted me, they just came to the house, said I wasn't there and that was it'.
I said, 'Well that's not what we will be doing'.
[The appellant] seemed emotional talking to Police about the matter.
At one stage it appeared as though [the appellant] was tearing up whilst talking to me.
I said, 'What about if we give you our work phone number and you can pass that onto your mother?'
[The appellant] picked up and handed me what I believed was his mobile phone.
He said, 'Put the number in there and I will try'.
I keyed in our work mobile phone number and saved it under 'We' as [the appellant's] phone was hard to operate.
Whilst attempting to input our number I noted a contact in the phone under the heading 'mum'.
I noted the number for future reference should it be required.
I advised him that the number was located under 'we' and if he could pass that onto his mother (ts 166).
28 The Major Crime Squad commenced an investigation with a view to locating Mrs Mack. Inquiries were made at all government departments with whom she had previously had contact. Police officers also spoke to some business associates. However, no-one had seen or had direct contact with Mrs Mack since late 2008. Immigration records did not show that she had departed from Australia. Inquiries at the Commonwealth Bank revealed that Mrs Mack had several accounts and term deposits with the bank. The term deposits had matured and been transferred to a particular account from which large sums had been withdrawn by way of cheque and deposited into the appellant's account. For example, between 29 December 2008 and 29 June 2010, 40 cheques in amounts ranging from $120 to $33,000, with a total value of $227,351, were drawn on Mrs Mack's account with the Commonwealth Bank. The cheques were payable to the appellant and matched deposits made to his accounts with St George Bank.
29 The appellant participated in four video-recorded interviews with police. These occurred on 26 August 2010, 2 September 2010, 10 September 2010 and 5 July 2012.
30 During the interviews on 26 August 2010, 2 September 2010 and 10 September 2010 the appellant repeatedly informed the police that Mrs Mack was alive but he could not tell them where she was.
31 However, during the interview on 5 July 2012 the appellant told the police that his mother had committed suicide in the shower at 144 Fairfield Street by slashing her arms with a knife. She died on 21 December 2008 and remained at the house until he buried her on the night of 31 December 2008. The appellant informed the police, in the course of the interview, of the general location of his mother's body. On the basis of that information the police carried out an exhaustive search and intensive investigations of an area at Lake Gwelup. Four feet of top soil was removed. However, no body was recovered.
32 On 9 September 2010 and 15 February 2011, the appellant met with his brother Adrian. On 19 October 2011 and 6 May 2012, the appellant spoke to Adrian by telephone. These conversations in person and by telephone were recorded by the police.
33 On 9 September 2010, the appellant informed Adrian that Mrs Mack was staying with someone from the Chung Wah Association in Perth. He said she was staying at a house in Balcatta near the tip. Adrian made some inquiries and then questioned the appellant again as to the whereabouts of their mother. The appellant told Adrian that Mrs Mack was 'staying more on the Dianella side' and 'no-one had seen her because she was a psycho and being looked after by a man'.
34 The State alleged that during the interviews with the police, and the conversations with Adrian, the appellant told lies.
35 The State's case at trial was based on the following:
(c) alleged lies told by him to the police and Adrian which were said to evidence a consciousness of guilt;
(d) the implausibility of his account that Mrs Mack had killed herself; and
(e) his admission that he had disposed of her body and the circumstances of its disposal.
Appeal against conviction: the grounds of appeal
36 The appellant relies on four grounds in his appeal against conviction.
(i) There is no body or any forensic evidence indicating that the Appellant's mother had come to harm;
(ii) The conviction was substantially based on the statements of the Appellant to the police where there was an alternative explanation other than guilt for statements made to the police, namely that the Appellant had significant communication and perception difficulties due to autism.
38 On 21 October 2013, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on the other grounds to the hearing of the appeal.
39 Ground 1 alleges that the trial judge erred in deciding that the appellant was fit to stand trial.
40 At a status conference on 16 February 2012 questions arose as to the appellant's fitness for trial. On 30 March 2012, the trial judge presided over a hearing to determine that issue. On 17 April 2012, his Honour ruled that, although the appellant faced 'significant difficulties due to pervasive autism', he was not persuaded that the appellant was unfit for trial. His Honour published written reasons for decision. See The State of Western Australia v Mack [2012] WASC 127.
41 Part 3 of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act) is headed 'Mental unfitness to stand trial' and comprises s 8 - s 19.
42 Section 8 contains, relevantly, the following definitions:
mental illness means an underlying pathological infirmity of the mind, whether of short or long duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary stimuli;
mental impairment means intellectual disability, mental illness, brain damage or senility.
43 By s 9, an accused is not mentally fit to stand trial for an offence if the accused, because of mental impairment, is:
(a) unable to understand the nature of the charge;
(b) unable to understand the requirement to plead to the charge or the effect of a plea;
(c) unable to understand the purpose of a trial;
(d) unable to understand or exercise the right to challenge jurors;
(e) unable to follow the course of the trial;
(f) unable to understand the substantial effect of evidence presented by the prosecution in the trial; or
(g) unable to properly defend the charge.
44 Section 10(1) provides that an accused is presumed to be mentally fit to stand trial until the contrary is found under pt 3.
45 Section 11(3) provides that pt 3 does not prevent the question of whether an accused is not mentally fit to stand trial being raised more than once in a trial.
46 By s 12(1), the question of whether an accused is not mentally fit to stand trial is to be decided by the presiding judicial officer on the balance of probabilities after inquiring into the question and informing himself or herself in any way the judicial officer thinks fit.
47 In the present case, the evidence and other material as to whether the appellant was not mentally fit to stand trial comprised:
(a) an affidavit of the appellant's solicitor, Seamus Francis Rafferty, sworn 15 March 2012;
(b) his Honour's observation of the appellant in court;
(c) the appellant's video-recorded interviews with the police on 26 August 2010, 2 September 2010 and 10 September 2010;
(d) the recorded telephone conversation between the appellant and Adrian on 19 October 2011;
(e) the report and evidence of Dr Mark Hall, a psychiatrist; and
(f) the report and evidence of Dr Salvatore Febbo, a psychiatrist.
49 The trial judge said that, at the hearing, the appellant:
(a) entered the court without eye contact and, after being directed, 'hurried into the dock and sat down';
(b) stood when asked, but made no response to an inquiry as to his name;
(c) then sat and, for the remainder of the hearing, averted eye contact, kept his head down and stared at the corner of the dock; and
50 His Honour made the following observations about the appellant's video-recorded interviews with the police on 26 August 2010, 2 September 2010 and 10 September 2010:
In the first two interviews [the appellant] made eye contact with the interviewer. His answers are coherent and appropriate in that he is able to freely convey by his answer that which he wishes to convey. His mood is congruent with his situation. In the final interview on 10 September 2010, his eye contact with interviewers is less although still observable but he spends more time looking to his right at the edge of the table. That said, however, his answers remained logical and coherent. At one point he makes a light and joking remark about an officer's tie [12].
51 On 19 October 2011, the appellant telephoned Adrian and spoke generally about the pending criminal proceedings. The trial judge found that:
(a) the appellant's 'tone' was appropriate and his thoughts and ideas were 'coherent';
(b) he displayed a 'good grasp' of the issues about which he was speaking, including possible courses of action in relation to the proceedings; and
(c) although on occasions he spoke with a slight stammer, the overall impression did not give rise to 'any indication of an unfitness to plead' [13].
52 On 19 December 2011, Dr Hall, a psychiatrist retained by the defence, interviewed the appellant for more than three hours. His report dated 15 January 2012 was tendered and he gave supplementary oral evidence.
53 In addition to the interview, Dr Hall was briefed with the appellant's medical record, five pages of notes written by the appellant and a copy of the statement of material facts relating to the count of murder.
54 However, on 19 December 2011 and when he wrote his report, Dr Hall did not have a copy of the appellant's video-recorded interviews with the police or a copy of the recorded telephone call on 19 October 2011.
55 Dr Hall said in his report that the appellant's presentation was 'unequivocally consistent with a diagnosis of Autistic Disorder (Autism)'. He expressed the view 'on balance' that the appellant was 'psychiatrically not fit to stand trial'. He did not envisage that the appellant would become fit to stand trial within six months. The rationale for Dr Hall's view, as set out in his report, was as follows:
Although one could argue that [the appellant] would be able to stand trial provided that sufficient time was allocated to allow for his impaired communication, and clear, concise communication was used to deliver very specific, concrete and preferably dichotomous concepts when seeking his instruction, there are some complicating factors: The courtroom is a very complex social situation on a number of levels. In the event of a plea of not guilty, it is the process of the trial itself, rather than the 'understandings' stipulated in the Act, that would be a problem in the event of complex or unanticipated issues arising, the likelihood of which would seem proportional to the seriousness of the charge, and is particularly relevant in [the appellant's] case given the circumstantial nature of evidence in the absence of proof of death.
[The appellant], in my opinion, falls down in the areas of his ability to follow the course of a trial and to properly defend the charge. As stated previously, the effect of arising distress, in particular its negative impact on his presence of mind, is likely to be such that he would struggle to assimilate information, given his impairments in communication and executive functioning, and thereby struggle to follow the course of a murder trial. Similarly, his ability to instruct his legal representative on the basis of events arising in the complex social setting of the courtroom, particularly during a trial for a charge as serious as murder, is doubtful.
56 At the hearing on 30 March 2012, Dr Hall gave this explanation of autism:
Autism is a neurological disorder, essentially, with cognitive psychiatric and behavioural manifestations. It's a lifelong condition, the cause is unknown, and it produces problems in a couple of areas that you can broadly define. One is a severe and pervasive impairment in social interaction, as well as severe and pervasive impairment in communication skills. There is almost invariably a degree of cognitive impairment associated with that as well (ts 64).
57 By 30 March 2012, Dr Hall had met twice with the appellant. At the hearing he summarised his observations of the appellant:
[H]e has impairment in the use of multiple non-verbal behaviours, including eye contact and body posture; a lack of social reciprocity; the failure to develop any appropriate peer relationships. He also exhibits impairments in communication in relation to the inability to sustain a conversation; stereotyped use of language; monotonous speech with an abnormal, robotic rhythm to it; and inability to understand the non-literal aspects of communication or implied meaning. ... [H]is ability to understand the abstract is virtually absent and everything is very much a concrete ... interpretations of things (ts 64).
58 At the hearing on 30 March 2012, Dr Hall listened to a recording of the telephone conversation on 19 October 2011 between the appellant and Adrian. Dr Hall said the dialogue was essentially a factual narrative, and the volume and amount of the appellant's speech was consistent with the manner in which a person suffering from autism might speak to a person with whom they were extremely familiar.
59 Dr Hall expressed the view that the appellant does not process emotion, especially negative emotion, and his response is to retreat from the situation, either physically or into himself. In those circumstances, it is to be expected that the appellant's cognitive deficits would be amplified. Those deficits included concrete thinking and difficulties with short term memory.
60 According to Dr Hall, the appellant would be unable properly to defend himself in that:
[The appellant] tends to be quite dichotomous in his thinking, so from my assessment of him, he divides things into a personal context - that's his language - personal context or some other context, such as a business context. If anything is relevant to himself personally, he tends to have a somewhat all-or-nothing approach to that. So he obliterates that from discussion completely. If it's something to do with something about which he's factually knowledgeable, then he's probably happy to talk at length about it. I would expect that - from my interviews with [the appellant], I would expect that he would be very reluctant to talk about any matters that might arise during the course of the trial (ts 69).
61 Dr Hall said in cross-examination that 'the ultimate conclusion [he had] come to' in relation to the matter was 'very difficult' (ts 72).
62 On 16 June 2011, Dr Febbo, a psychiatrist retained by the State, interviewed the appellant for about two hours. His report dated 23 June 2011 was tendered and he gave supplementary oral evidence.
63 In addition to the interview, Dr Febbo was briefed with other material including a copy of the appellant's video-recorded interviews with the police.
64 During his interview with the appellant, Dr Febbo noted 'behaviours falling within [the] diagnostic category' of autism spectrum disorder. His report states:
It was noted that there was an impairment in social interaction. I noted impairment in non-verbal behaviour. He described a failure to develop appropriate peer relationships. He gave a history suggesting a lack of spontaneous seeking to share interests. There was an impairment in communication. There was a history of impairment in an ability to initiate or sustain a conversation. There was a tendency towards idiosyncratic language. There was a history suggesting a restricted repetitive and stereo-type pattern of behaviour. He gave a history that it was necessary for him to do things in exactly the same order 'every single day'.
65 Dr Febbo accepted in his report that the appellant's presentation was 'in keeping with a Pervasive Developmental Disorder, Autistic Disorder'. He then expressed the following opinions:
In summary, and using a DSM-IV diagnostic framework, the presentation on Axis One (clinical disorders) is in keeping with a Pervasive Developmental Disorder, Autistic Disorder, although it would be useful to obtain collateral information. On Axis Two (personality disorders and mental retardation) there is no evidence to suggest the presence of a personality disorder or mental retardation. On Axis Three (or physical conditions) there is no history to suggest the presence of a significant physical illness. On Axis Four (psychosocial and environmental problems) I note the presence of significant stress related to current legal proceedings and imprisonment. There is stress related to the Axis One condition. On Axis Five (Global Assessment of Functioning) [the appellant] would currently attract a GAF scale score of 60 or 'moderate symptoms'.
66 Finally, Dr Febbo dealt in his report with the issue of the appellant's fitness to stand trial:
[The appellant] understood the nature of the charges. It is my view that he understood the requirement to plead to the charges and the effect of the plea. He understood ... the purpose of a trial. Although he was not aware of his right to challenge jurors he did understand this after some discussion. In my opinion [the appellant] would be able to follow the course of a trial, understand the substantial effect of evidence presented by the prosecution in the trial, and be able to properly defend the charge. In short, it is my view that [the appellant], with appropriate legal representation, is fit to stand trial.
67 At the hearing on 30 March 2012, Dr Febbo conceded that the appellant's cognitive ability or performance had the potential, based on anxiety, to deteriorate significantly during the course of the trial (ts 87 - 88, 90).
68 The trial judge set out in his reasons the views of Dr Hall and Dr Febbo, and arrived at the following conclusions:
(a) Dr Hall and Dr Febbo had 'a difference of opinion reached by [the] application of their professional judgment' [40].
(b) Dr Hall examined the appellant six months after Dr Febbo. It may be that the appellant's mental state 'has deteriorated to a degree' [40]. His 'GAF appears to have declined' [40].
(c) His Honour's observation of the appellant confirmed that his behaviour was unusual and his Honour was satisfied that the appellant had 'a mental impairment due to autism' [41].
(d) His Honour had no doubt that a trial judge would have to be 'responsive to the problems that [the appellant's] autism [may] raise in relation to the conduct of the trial to ensure that the trial is fair and that [the appellant] is given adequate opportunity to instruct his counsel and make a proper defence' [42].
(e) However, his Honour was not persuaded on the balance of probabilities that the appellant was unfit for trial [42].
Where their opinions contradict, I prefer the evidence of Dr Febbo over that of Dr Hall. I acknowledge immediately that Dr Hall's interviews and opinions are more recent and that there is a potential for [the appellant's] condition to have deteriorated not through his autism, which may fluctuate, but through the anxiety and stress of the forthcoming trial. Depression has not been diagnosed. However, Dr Febbo had available to him a far greater amount of material and crucially the VROI's. I have also had regard to my own observations which I have recounted; the telephone call of 19 October 2011, which was not long before the interviews with Dr Hall; the VROI's. I am not persuaded that the marked difference between [the appellant's] presentation in the VROI's and his appearance in court is the result of a deterioration due to lifelong autism. Also, notwithstanding Dr Hall's explanation about the telephone call made by [the appellant] a relatively short time before his interview, an equally plausible explanation is that [the appellant] has decided not to engage in the trial process. The telephone call showed a good grasp of the issue he was talking about. It is likely that [the appellant's] current presentation is more as a result of choice coupled with his autism than a result simply of his mental impairment. Applying the legal principles I have outlined to the evidence I prefer, I find that, provided the trial process accommodates [the appellant's] autism, he is fit and able to stand trial. I am not persuaded that [the appellant's] autism is such a contributor to his presentation that he is unfit for trial [42].
70 Counsel for the appellant's submissions in relation to ground 1 of the appeal were, in summary, as follows:
(a) His Honour placed significant reliance on the appellant's presentation and demeanour during his video-recorded interviews with the police.
(b) However, the relevant time for determining the appellant's fitness for trial was at the time of the hearing (namely, 30 March 2012) and not at the time of the video-recorded interviews (which occurred about 18 months earlier).
(c) His Honour erred by placing 'primacy' on the appellant's presentation and demeanour during the video-recorded interviews and discounting the most recent psychiatric opinion, namely that of Dr Hall, because Dr Hall had not reviewed the video-recorded interviews.
(d) The decision which his Honour had to make was whether the appellant was unable 'to exercise the functionalities identified in the Act in a trial context due to his autism'. The 'most recent evidence' indicated that the appellant was not able to exercise these 'functionalities'. His condition at the time of the video-recorded interviews was 'of limited utility' in answering the requisite question.
72 The trial judge was confronted with a conflict between the opinion of Dr Hall and that of Dr Febbo. Dr Hall concluded that the appellant was not fit to stand trial because he would be unable to follow the course of the trial and properly defend the charge. These difficulties arose from the appellant's autism. By contrast, Dr Febbo concluded that the appellant was fit to stand trial, based on the criteria set out in s 9 of the Act, despite his autism. It is not unusual for experts to form different opinions even when they have considered the same materials and have contemporaneously conducted similar investigations. However, in the present case, the materials that were made available to Dr Hall and Dr Febbo were different. Also, they examined the appellant at different times.
73 An important question for his Honour was whether the appellant's more recent behaviour, notably his detachment from court proceedings, 'manifested by apparent non-responsiveness [was] primarily due to his autism' [41]. His Honour was entitled, in considering that question, to take into account, amongst other things, the appellant's presentation in the video-recorded interviews with the police and his ability to converse meaningfully with Adrian about the police investigation and the impending trial.
74 Dr Hall's assessment of the appellant's fitness to stand trial was based, to a significant degree, upon the manner in which the appellant may respond to anxiety and stress associated with the trial. Dr Febbo also accepted that there was potential for the appellant's cognitive ability to deteriorate during the trial, but he had taken that matter into account in evaluating the appellant's fitness. The trial judge was alert to this possibility at the hearing on 30 March 2012 and during the trial.
75 His Honour noted, in relation to the possibility that the appellant's mental state might deteriorate, that s 11(3) of the Act permitted the question of whether an accused is not mentally fit to stand trial to be raised more than once during a trial. His Honour mentioned that point to defence counsel in the course of submissions after Dr Hall and Dr Febbo had given evidence at the hearing on 30 March 2012:
HIS HONOUR: I'm not ducking the issue, but if it were sort of evenly balanced, would I be wrong in allowing the matter to go forward on the basis that if what Dr Hall predicts comes to pass, the question of fitness to plead can be revisited by the trial judge?
RAFFERTY, MR: I'm not going to argue against that, your Honour, no. I think that is the appropriate way to deal with this matter if your Honour was of the opinion that this is an absolute lineball decision and clearly having regard to section 11 of the Act, the issue can arise at any time and if I was at a point in the trial or the trial judge or indeed the prosecutor, anybody who considered that there had been such a change in [the appellant's] position that this question needed to be revisited, you know, it could be revisited at that time and I accept what your Honour says in that regard.
Clearly it is a lineball decision (ts 94).
76 At the hearing of the appeal, counsel for the appellant accepted (correctly in my view) that, in the present case, the relevant components of the statutory test in s 9 of the Act were those embodied in par (e) and par (g). That is, the appellant's alleged unfitness to stand trial depended on whether the appellant, because of 'mental impairment', was 'unable to follow the course of the trial' (par (e)) or was 'unable to properly defend the charge' (par (g)) (appeal ts 23 - 24).
77 At the trial, the appellant was represented by senior and junior counsel. Both counsel are very experienced and competent criminal lawyers.
78 At the trial, defence counsel did not inform the trial judge at any stage that the appellant was having difficulty in following the course of the trial or that defence counsel were having difficulty in obtaining instructions from the appellant.
79 The appellant ran a positive defence at trial. This would have required defence counsel to have obtained detailed instructions from the appellant. There is no doubt that the appellant is intelligent.
80 The trial was not lengthy or complex. It was completed in four days. The transcript of the hearing (including opening and closing addresses) occupied only 173 pages. Most of the evidence in the prosecution brief was tendered by the prosecutor without objection from defence counsel. The only State witnesses who gave oral evidence were Adrian and Detective Senior Sergeant Robert Scantlebury. Adrian was cross-examined very briefly. The cross-examination occupied less than two pages of transcript. The cross-examination of Detective Senior Sergeant Scantlebury was also brief. It occupied about seven pages of transcript.
81 The appellant elected not to give or adduce any evidence at the trial.
82 As I have mentioned, the appellant was tried before his Honour alone without a jury.
83 In my opinion, it was reasonably open to the trial judge to prefer the opinion of Dr Febbo to that of Dr Hall. His Honour gave proper reasons for his preference.
84 His Honour did not err in law or in fact in deciding that he was not persuaded, on the balance of probabilities, that the appellant was unfit for trial. There is no substance in counsel for the appellant's complaints; in particular:
(a) His Honour was entitled to take into account, and give significant weight to, the appellant's presentation and demeanour during his video-recorded interviews with the police.
(b) Although it was necessary to determine questions relating to the appellant's fitness for trial as at the time of the hearing (that is, 30 March 2012), the material in the video-recorded interviews (which occurred about 18 months earlier) was nevertheless relevant to the components of the statutory test embodied in par (e) and par (g) of s 9 of the Act. That is, the appellant's presentation and demeanour during the video-recorded interviews were relevant in assessing whether he was 'unable to follow the course of the trial' or was 'unable to properly defend the charge'.
(c) I am not persuaded that his Honour placed 'primacy' on the appellant's presentation and demeanour during the video-recorded interviews or that he failed to accord appropriate weight to the opinions and evidence of the psychiatrists. In evaluating the opinions and evidence of Dr Hall, compared to Dr Febbo, his Honour was entitled to take into account that Dr Hall had not reviewed the video-recorded interviews.
(d) His Honour was bound to take into account all relevant evidence and other material before him in deciding whether, on the balance of probabilities, the appellant was not mentally fit to stand trial. That process of assessment had to be carried out by reference to those components in s 9 of the Act that were in issue (namely, par (e) and par (g)). I am not persuaded that his Honour made any material error in his approach to or his weighing of the relevant evidence and other material before him.
85 I am satisfied, after evaluating the evidence and other material before the trial judge, that there was no reasonable basis for concluding that the appellant would be unable to follow the course of the trial or unable properly to defend the charge. No miscarriage of justice has occurred by reason of any mental impairment attributable to the appellant's autism.
86 Ground 2 alleges that the trial judge erred in deciding that the appellant had lied in a manner indicating consciousness of guilt 'in circumstances where the appellant had significant communication and perception difficulties due to autism' and those difficulties provided 'an alternative explanation for his statements other than consciousness of guilt'.
87 At the trial, the prosecutor identified, in his opening address, eight lies relied upon by the State as implied admissions against interest (ts 147 - 148). See Edwards v The Queen [1993] HCA 63; (1993) 178 CLR 193. The eight lies were as follows.
88 First, in 2009 the appellant told Mr Beckton that his mother was overseas.
89 Secondly, in July 2010 the appellant told Mr and Mrs Chew that his mother was living with someone else.
90 Thirdly, on 7 August 2010 the appellant told Constable Bear and Senior Constable Ball that his mother had 'moved out' from her home on the Sunday before Christmas 2008.
91 Fourthly, on 9 September 2010 the appellant told Adrian that their mother was staying with someone from the Chung Wah Association at a house in Balcatta near the tip.
92 Fifthly, in February 2011 the appellant told Adrian that their mother was staying 'more in the Dianella side' and that she was 'psycho' and being looked after by a man.
93 Sixthly, on 26 August 2011 the appellant told the police that his mother had made him buy her a car after the motor vehicle accident with Mr Rudzinski.
94 Seventhly, the appellant told the police on numerous occasions during his video-recorded interviews that his mother was alive, but he could not tell them where she was.
95 Eighthly, on 5 July 2012 the appellant told the police that he had left the shower in the house at 144 Fairfield Street running for a week after he discovered his mother committing suicide by slashing her arms with a knife.
96 The trial judge made these findings in relation to the lies:
(a) The appellant fabricated the 'thank you' card, which purported to be from Mrs Mack, and he sent the card to Mrs Chew. The appellant demonstrated 'effort and cunning' in constructing the card [100]. He 'went to the trouble to comb through letters and other material written by [Mrs Mack] and construct the short note entirely from facsimiles of real words' [106].
(b) The appellant lied to the police in asserting that Mrs Mack had instructed him to 'transfer the car' after the traffic accident with Mr Rudzinski [88].
(c) In 2012 the appellant told the police his mother was dead and she was buried in the vicinity of Lake Gwelup [145].
(d) The lies told by the appellant to the police and to Adrian, together with his other lies and evasions, were significant in evaluating whether the account the appellant gave on 5 July 2012 about Mrs Mack having committed suicide 'has a reasonable possibility of being a truthful account or whether that is also a lie' [151].
(e) The appellant's video-recorded interview with the police on 5 July 2012 had to be examined in the context of 'all that had gone before' [152]. His Honour concluded that the appellant's exculpatory account on 5 July 2012 about Mrs Mack having committed suicide was 'yet another lie' [152].
(f) It was not in contest that the appellant told lies to the police in the video-recorded interviews on 26 August 2010, 2 September 2010 and 10 September 2010 [149]. However, the defence asserted that in the video-recorded interview on 5 July 2012 the appellant told the truth when he said he found his mother committing suicide in the shower by slashing her arms with a knife [150].
(g) His Honour reproduced a substantial passage from the transcript of the appellant's video-recorded interview with the police on 26 August 2010 [154] - [155], and then commented:
[The appellant] was in police custody for a very long time. At no stage did he indicate that his mother was dead. He resorted to stonewalling by refusing to say anything, claiming this is what he had been told to do. He also vehemently denied forging his mother's signature or writing cheques, even though he must have known this was false.
While by itself, this [video-recorded interview] may be equivocal as to consciousness of guilt of a particular offence of homicide as opposed to, say, stealing, it must be seen in the context of the lies previously told to the non-police witnesses.
Of importance also are his requests for time to think. [Defence counsel] points to these as part of his general submission that [the appellant] processes matters slowly and needed time to work through the ramifications of telling the police what really happened to his mother. The other view is that these are hard questions for which he has not fully prepared answers [156] - [158].
(h) His Honour reproduced a substantial passage from the transcript of the appellant's video-recorded interview with the police on 2 September 2010 [159] - [160], and then commented:
In this interview [the appellant] is positive that his mother is alive and that he had seen her recently. Although he speaks at times of not being able to think, his answers belie a lack of need for thought. His answers to simple questions are positive [161].
(i) His Honour reproduced a substantial passage from the transcript of the appellant's recorded conversation with Adrian on 9 September 2010 [162] - [166]. The appellant told Adrian, amongst other things, that their mother was 'mental', 'absolutely psycho' and 'nuts'; she had a male friend by the name of Chan; she was meeting new friends through the Chung Wah Association; and he last saw their mother at Mr Chan's house which was near the Balcatta tip. His Honour commented about the appellant's conversation with Adrian:
[The appellant's] voice is animated and appropriate during this conversation. He adds considerable detail to a story which he knows to be false because his mother is in fact dead. Although there is a necessary vagueness about the directions to where his mother is supposedly living, the story is elaborate and, by itself, to a degree, plausible. It contains no indication of a person who needs time to think. Moreover, despite his later professions of embarrassment in declining to tell police what happened in order to protect his mother's reputation, he is prepared to describe her to Adrian in derogatory terms as, among other things, a psycho [167].
(j) His Honour reproduced a substantial passage from the transcript of the appellant's video-recorded interview with the police on 10 September 2010 [167] - [168], and then commented:
[The appellant's] answers to the police are devious. The day before, in conversation with his brother, [the appellant] said his mother was living in Balcatta, albeit he was vague about the precise address. However, he declines to tell the police the same thing in this interview [169].
(k) His Honour reproduced a substantial passage from the transcript of the appellant's recorded conversation with Adrian on 15 February 2011 [172]. The appellant told Adrian, amongst other things, that the last time he saw their mother was 'in Chan's car, which is a blue car' [172]. His Honour commented on this conversation:
[The appellant] backtracks from earlier comments as to when he saw his mother and now asserts that it was in Mr [Chan's] blue car. His comment 'There is no murder' is in the context that his mother is alive, not that his mother killed herself [173].
(l) His Honour reproduced a substantial passage from the transcript of the appellant's recorded telephone conversation with Adrian on 6 May 2012 [173], and then commented:
[The appellant] obviously knew that the call was being recorded and might be used in evidence but even so, its contents are remarkable. Despite speaking hypothetically, the overall impression is of a person who is still considering a cause of death and its location. A constant theme, through this and previous interviews with police, and discussions with his brother, is the notion that, for some reason, he is unable to tell them important information [174].
(m) On 11 May 2012, Detective Sergeant Scantlebury went to Lake Gwelup with the appellant but the appellant declined to be interviewed on video. The police carried out a comprehensive search of an area identified by the appellant as the place where Mrs Mack was buried. The search involved the use of hand probes, metal probes, metal detectors, ground penetrating radar and excavation. The search was unsuccessful [175].
(n) On 5 July 2012, the appellant requested the police to take him to 144 Fairfield Street. His Honour reproduced a substantial passage from the transcript of the appellant's video-recorded interview with the police on 5 July 2012 [176] - [181]. The interview was conducted in different parts of the house at 144 Fairfield Street and, later, at Lake Gwelup. It was video-recorded. His Honour commented:
The [appellant] then describes how he moved the body. He goes into considerable detail and on this occasion I am satisfied that his account of moving the body is essentially truthful. This includes taking lime from the rear shed where his father used to store it and putting lime in with the body which he says he buried in the wetlands at Lake Gwelup [179].
(o) The appellant told each lie knowing it to be untrue [187].
(p) All of the lies (except the eighth lie) were in essence one lie; namely, that Mrs Mack was still alive when, to his knowledge, she had died by his hand [187].
(q) The number and nature of the lies told by the appellant showed an inventive nature and a willingness to adapt the lies to the circumstances [189].
(r) His Honour was satisfied beyond reasonable doubt that, by 29 December 2008, Mrs Mack was dead and the appellant knew she was dead [190].
(s) The lies told by the appellant were a 'deliberate falsehood designed to deflect attention from Mrs Mack's death by pretending that she was alive and out of contact' [191].
(t) The card sent by the appellant to Mr and Mrs Chew was 'effectively a lie or guilty behaviour designed to advance the same theme that [Mrs Mack] was alive and uncontactable' [192]. The creation of the card showed the appellant had 'a highly manipulative and devious mind' [192].
(u) The appellant lied to the police about his use of Mrs Mack's cheque book; about forging her signature on cheques; and about her having advanced money to him from time to time to pay for his business expenses [193].
(v) The appellant gave inconsistent answers to police on matters of real significance [194]. His Honour elaborated:
He denied that his mother had committed suicide and yet later told police an elaborate story about finding his mother in the shower bleeding, having slashed her arms with a knife. The time when he was asked whether his mother had committed suicide and he denied it was the opportunity, if it was really true, to explain the circumstances of her death. He was aware this may have led to his release.
His behaviour may be odd but he is intelligent. This lie is not explained by needing time to process information. He had plenty of time [194] - [195].
(w) His Honour found that the appellant was 'an inveterate and accomplished liar who has lied so often on matters of such significance that little of what he says can be safely accepted by me' and rejected 'his self-serving story of suicide' [196].
(x) His Honour was satisfied beyond reasonable doubt, first, that each of the appellant's statements relied on by the prosecutor was a lie and, secondly, that each statement was made 'in consciousness of guilt of a homicide' [199].
(y) Earlier in his reasons, his Honour referred to a submission by defence counsel that the appellant, by reason of his unusual personality, required time to process information and changes. His Honour said:
[Defence counsel] submits that the personality of the accused is such that he needs time to process information and changes. A huge change in his life was finding his mother dead. He needed time to process that information and then realised that he had done too little, and it was too late, so he had to dispose of the body. However, as the cheques show, he was quite capable of paying himself and paying off debts. The speed at which he began to draw on [Mrs Mack's] money is powerful evidence the [appellant] had processed her death and was acting to his own advantage in respect of it [141].
(z) His Honour was 'completely unpersuaded' by defence counsel's submission that the reason for the lies as to Mrs Mack being alive was not to cover up the appellant's crime but to cover up her suicide [201] - [202].
(aa) His Honour concluded that, by reason of the appellant's conduct, including the multiple transfers of money from Mrs Mack's bank accounts to his bank accounts, his forging of her signature, his multiple lies and the creation of the card sent to Mr and Mrs Chew, the appellant had 'no credibility whatever' [203].
(bb) His Honour 'completely [rejected] as untruthful' the appellant's account that he found his mother in the shower, 'she having effectively committed suicide' [210]. His Honour's reasons for rejecting the account included:
Throughout repeated accounts to police and to his brother [the appellant] constantly minimized his involvement in any crime. His varying accounts of the use of money from his mother's cheque account attest to this. They range from outright denial to concessions in the face of overwhelming evidence. He denied that his mother committed suicide.
He constantly misled his brother and maintained a story that his mother was alive until it became untenable after his brother had made efforts to try and locate her. The telephone conversation of 6 May 2012 is telling.
[Senior counsel for the appellant] forcefully argues that I should find there is a reasonable possibility that his explanation is true (ts 287) ...
...
I have taken into account all that [senior counsel] said in support of the proposition that I cannot exclude beyond reasonable doubt the possibility that the deceased killed herself. I remain unpersuaded. First of all, [the appellant's] account flies in the face of the accounts he has given before on every occasion when he has emphatically asserted that [his] mother is alive. Having seen him on video and listened to him, despite the oddness of his mannerisms, about which I have commented, I consider he is an intelligent and cunning person. He is aware of the difference between manslaughter and suicide. He is aware that suicide would exculpate him.
His behaviour in maintaining the lie that [his] mother was alive, if the truth was that she had killed herself, is inexplicable and incredible. Although he claimed that he remained silent out of some sort of regard for his mother and her wishes that no-one should know, he felt no compunction in bad-mouthing her to his brother, accusing her of being, amongst other things, insane and of taking out her anger on their late father.
Because [the appellant] is intelligent and because Detective Sergeant Scantlebury told him so, it is inconceivable that he would have sat on a 'get out of gaol free' card for as long as he did rather than exonerate himself.
His evidence about what he says he did on 21 December 2008 is unbelievable. According to [the appellant], he is out in the shed working on computers and becomes concerned that his mother is too long in the shower. He does not suggest why her behaviour should cause him to become concerned. Most people in that situation would, as a first response, knock on the bathroom door and call out. They would not break in through the window. I am fully aware that [the appellant's] actions have to be judged from his [standpoint] not from the standpoint of the ordinary person. But the manner in which an ordinary person might react does have some part to play in evaluating [the appellant's] version so long as it is remembered, as I do remember, that [the appellant] is an unusual individual who does take time to process information.
[Senior counsel for the appellant] placed great store on the broken lock and the popping off of the lock. He said:
'[I] ask rhetorically, is it reasonably possible that he thought through all of this story to the degree of such minutia about the popping off of the lock?' (295)
It is true that Adrian Mack confirmed the lock had been popped off and that he had to repair it. However, [the appellant] was living in the house from the beginning of 2008 until his arrest in August 2010 and had plenty of opportunity to observe the state of the window and the lock. I attribute no weight to this submission [211] - [220].
(cc) Later, his Honour revisited the appellant's explanation that Mrs Mack had killed herself and his Honour's finding that this explanation was a lie:
[The appellant's] explanation that his mother killed herself is a lie. To summarise, [the appellant's] explanation of what he did when he was confronted by his mother in the shower is unbelievable. He claims to have interpreted the word 'no' as a requirement that he do nothing, call no-one, call no ambulance and never tell anyone. His story that he had the wit to turn the hot water off but turned the cold water on and left it running makes no sense at all. It is argued that [the appellant] takes time to process information and then realised that he had done too little and it was too late to do anything. After a week his mother was dead. He needed money to live and it was not for a year that large sums were drawn. That submission overlooks two early drawings of $10,000 each.
[Senior counsel for the appellant] argued that [the appellant's] account is so bizarre that it is not possible it is just made up.
I find it so bizarre precisely because it was made up [237] - [239].
97 At the hearing of the appeal, counsel for the appellant submitted that there was a 'reasonable alternative explanation' for the appellant's lies, other than consciousness of guilt, established by the evidence.
98 Counsel argued that the prosecutor wrongly asserted that the appellant's motive for allegedly killing his mother was to obtain her money in that 'withdrawals from the deceased's account were relatively constant and normal until one year after the deceased's death' and that pattern was 'not consistent with a motive to kill to obtain money'. The 'better explanation', so it was submitted, for the withdrawals from Mrs Mack's accounts was that the appellant 'found himself in a situation where his mother was found dead and he was unemployed and had no money'.
99 Counsel for the appellant also argued that the appellant's mental state, in particular the impact of his autism, provided 'another explanation' for his lies. It was submitted that the appellant's personality was 'such that he needs time to process information and changes'. The appellant found his mother committing suicide and her death was a 'huge change in his life'. He needed time 'to process that information'. He then realised that 'he had done too little, and it was too late, so he had to dispose of the body'.
100 Further, counsel argued that the trial judge did not consider the possibility that the appellant's version of events, that Mrs Mack committed suicide and he sought to hide the suicide, was consistent with the behavioural tendencies attributable to his autism. According to counsel, the appellant, upon being confronted with his mother's death, left his mother in the shower because the death disturbed his routine and he required time to consider what should be done about it.
101 Counsel for the appellant complained that his Honour, in his reasons for decision, failed to refer to the possible link between the appellant's 'odd' behaviour, on the one hand, and 'his communicative abilities and his understanding of the questions being asked of him', on the other, as a possible alternative explanation for his lies.
102 Counsel referred to the appellant's statements in his video-recorded interview on 5 July 2014 regarding the broken lock on the bathroom window at 144 Fairfield Street. It was submitted there was no explanation by his Honour as to why the appellant's statement to the effect that he gained entry to the bathroom by climbing through the window was untrue. At the trial, defence counsel had contended that it was unlikely the appellant would have entered the bathroom through the window if he had intended to murder his mother.
103 Evidence which suggests a consciousness of guilt is admissible as an implied admission against interest. If the State relies on such evidence in a criminal trial it is open to the accused to offer some explanation, consistent with innocence, which may nullify its force. Various categories of evidence suggesting a consciousness of guilt have been recognised in the case law. See Cooper v The Queen [2012] HCA 50; (2012) 87 ALJR 32 [86] - [87] (Heydon J).
104 In Edwards, the High Court distinguished between lies told by an accused which affect only his or her credit and lies told by an accused that are evidence because they constitute implied admissions against interest. Lies will constitute implied admissions if they are told out of a consciousness of guilt; that is, the accused told the lies because of a realisation of guilt and a fear of the truth.
105 If an Edwards direction is required, the direction must ordinarily encompass the following:
(b) the lie will not be evidence against the accused unless the lie was deliberate;
(c) there are many reasons why people tell lies, apart from the realisation of guilt;
(d) the lie cannot be used as evidence against the accused if the tribunal of fact accepts an explanation for the lie that is consistent with innocence;
(e) the lie will not be evidence against the accused unless the lie was told out of a consciousness of guilt (that is, the accused knew that the truth would implicate him or her in the offence) and the lie reveals knowledge of the offence charged or some aspect of it; and
(f) the facts, events and circumstances relied on by the State to indicate that the lie constitutes an admission against interest must be precisely identified.
See Edwards (209 - 211); Osland v The Queen [1998] HCA 75; (1998) 197 CLR 316 [42] fn (83) (Gaudron & Gummow JJ); R v Hartwick [2005] VSCA 264; (2005) 14 VR 125 [94], [113] (Charles, Chernov & Nettle JJA); R v Ciantar [2006] VSCA 263; (2006) 16 VR 26 [81] - [85] (Warren CJ, Chernov, Nettle, Neave & Redlich JJA); Martinez v The State of Western Australia [2007] WASCA 143; (2007) 172 A Crim R 389 [275] - [285] (Martin CJ, Steytler P & Miller JA); Hedgeland v The State of Western Australia [2013] WASCA 97 [86] (Buss JA, Martin CJ agreeing); Allami v The State of Western Australia [2013] WASCA 230 [78] (Buss JA, Hall J agreeing).
106 An accused's post-offence conduct, including lies, is circumstantial evidence. A tribunal of fact may accept and act upon evidence of the accused's post-offence conduct, if the conduct constitutes an implied admission against interest, without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is, without being satisfied that there is no other explanation of the post-offence conduct which is reasonably open on the facts), unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends. See Edwards (210); Ciantar [45]; Hedgeland [80]; Allami [81].
107 So, ordinarily, an accused's post-offence conduct, including lies, that constitutes an implied admission against interest may be considered by the tribunal of fact together with other evidence (whether direct or circumstantial) without it being necessary for the State to prove beyond reasonable doubt that the post-offence conduct demonstrates a consciousness of guilt, unless the post-offence conduct is the only evidence against the accused or is an indispensable link in the chain of reasoning on which proof of guilt depends. Ordinarily, the accused's post-offence conduct that constitutes an implied admission against interest is merely part of the evidence as a whole which the tribunal of fact must consider in determining whether the State has proved its case against the accused beyond reasonable doubt.
108 Circumstantial evidence must not be considered on a piecemeal basis. It must be evaluated in its entirety. See R v Hillier [2007] HCA 13; (2007) 228 CLR 618 [46] (Gummow, Hayne & Crennan JJ).
110 At the trial, no expert evidence was adduced, either by the prosecution or the defence, about the appellant's autism. In particular, the reports of Dr Hall and Dr Febbo and their evidence at the hearing on 30 March 2012 were not tendered or relied on. Defence counsel ran the appellant's case in relation to his unusual personality by reference to the appellant's conduct and demeanour during the video-recorded interviews with the police, the recorded conversations with Adrian and the evidence of Detective Sergeant Scantlebury about his observation of the appellant's behaviour.
111 At the trial, defence counsel accepted that the first seven lies were material and deliberate lies (ts 269 - 270). The critical point relied on by the defence was the reason for the telling of the first seven lies; in particular, whether the prosecution had established that the only rational reason for telling those lies was the appellant's knowledge that Mrs Mack was dead and he had caused her death (ts 270). The defence case at trial was that there was an alternative explanation, consistent with innocence, for the appellant having told the first seven lies; namely, that he realised he had left Mrs Mack's body in the shower for too long without reporting her death by suicide and 'he was worried and perhaps ashamed about what might happen if people found out about it' (ts 270). Defence counsel contended that the alternative explanation had to be considered in the context of the appellant's unusual personality; in particular, his need for time to process information and changes.
112 As to the eighth lie, defence counsel objected to the admissibility of the evidence relied upon by the prosecution to establish that the appellant's statement to the police (that he had left the shower running for a week after he discovered his mother committing suicide by slashing her arms with a knife) was a deliberate lie. I will deal with the admissibility of the evidence in question in the course of considering ground 3.
113 In my opinion, the trial judge gave proper consideration to the defence submission that the appellant lied because of his unusual personality characteristics; notably, that he requires time to process information and changes affecting him and his life.
114 His Honour expressly rejected, and was entitled to reject, the alternative explanation of death by suicide [194] - [196], [201] - [202], [210] - [220], [237] - [239]. He said he was 'completely unpersuaded by it' [202]. His Honour also expressly rejected, and was entitled to reject, the submission that the appellant required time to process his mother's alleged death by suicide [141], [194] - [195], [237].
115 The trial judge was entitled to find that the appellant's motive for unlawfully killing his mother was to gain control of her money and other assets. His Honour was entitled to reject, as an alternative explanation, that the appellant had merely withdrawn money from her accounts because she had committed suicide and he was unemployed and unable to support himself.
116 His Honour was entitled to conclude, on the whole of the evidence before him, that the only reasonable explanation for the appellant's lies was that they were told deliberately and out of a consciousness of guilt (that is, he knew the truth would implicate him in the unlawful killing of Mrs Mack) and that the lies revealed knowledge of the cause and circumstances of Mrs Mack's death. His Honour did not make a material error of fact or law in deciding that the appellant had lied in a manner indicating consciousness of guilt arising from his having unlawfully killed Mrs Mack.
117 The trial judge did not reason, solely on the basis of the Edwards lies, that the appellant was guilty of murder as distinct from manslaughter. His Honour said:
My finding that [the appellant] unlawfully killed the deceased within the time specified in the indictment leads to the question whether the State has established, beyond reasonable doubt, that the killing was accompanied by an intention to kill or to do a life threatening injury. For reasons already expressed, I set aside the question whether [the appellant] intended a life threatening injury. There is no direct evidence of that intention and an inference that there was such an intention is against logic in the way in which the prosecution case was presented as to motive and conduct.
There is no evidence of [the appellant's] predisposition towards his mother. There is no evidence of prior acts of violence or anger that he showed towards her.
[The appellant] had the opportunity to kill his mother. If, as he admits she died in the house, it is very difficult to see how anyone else could have killed her, especially without [the appellant's] knowledge.
[The appellant's] motive or purpose in killing his mother was to gain control of her property and money. This is evidenced by his post offence conduct when he put his purpose into effect by writing cheques, transferring funds, forging leases and indeed continuing to live at 144 Fairfield Street. The money he stole financed his business venture in computer repairs.
The lies he told are equally consistent with knowledge that he had unlawfully killed the deceased and with knowledge that he had intentionally killed the deceased. Because the inference from the lies is equivocal it would not be possible to be satisfied beyond reasonable doubt if they constituted the only evidence of guilt.
The disposition of the body in the manner described by [the appellant] which, as I have said, I accept, is also consistent with an unlawful killing and with an intentional killing although far more consistent with an intentional killing.
Viewed separately, the circumstances could not sustain a verdict of murder, only manslaughter.
However, circumstances should not be viewed separately but together [245] - [251]. (emphasis added)
See Ciantar [40], [65] - [67], [72], [78]; Dodd v The State of Western Australia [2014] WASCA 13 [109] - [116] (Buss JA, Newnes JA agreeing).
118 His Honour was satisfied beyond reasonable doubt, upon combining all of the circumstances, that the appellant unlawfully killed Mrs Mack, intending to bring about her death, and he was therefore guilty of murder.
119 As to counsel for the appellant's submission that it was unlikely the appellant would have entered the bathroom through the window if he were entering for the purpose of murdering Mrs Mack, the trial judge did not find that the appellant in fact entered the bathroom through the window. Rather, his Honour noted that the appellant had an opportunity to observe the broken state of the bathroom window lock, and to take that fact into account in formulating the scenario he gave to the police in the video-recorded interview on 5 July 2012 [220].
120 Ground 3 alleges that the trial judge erred in placing reliance on a water usage test.
121 In the appellant's video-recorded interview with the police on 5 July 2012 the following exchange occurred:
122 At the commencement of the trial, defence counsel objected to the admissibility of evidence the prosecution proposed to adduce in relation to a water usage test conducted by police at the house at 144 Fairfield Street.
123 The test related to the appellant's assertions, during the video-recorded interview on 5 July 2012, to the effect that:
(a) he had discovered Mrs Mack's body in the shower; and
(b) he had left her in the shower, with the cold water running, for about a week.
124 The test was conducted to determine the volume of water that would flow through the shower over a seven-day period. Police obtained meter readings from the Water Corporation, including at about the time the appellant asserted he had found Mrs Mack in the shower, in order to make a comparison of water usage at that time compared to when the test was conducted.
125 The result of the water usage test and the meter readings and other information obtained from the Water Corporation were relied on by the prosecution to demonstrate that the appellant's assertions, being the eighth lie referred to in the context of ground 2, were a deliberate lie told out of a consciousness of guilt (ts 148).
126 Defence counsel objected to the admissibility of the evidence on the basis that the conditions existing at the time of the test could not be shown to have been substantially or sufficiently similar to the conditions existing at the time the shower was allegedly left running for about a week. In particular, it could not be ascertained 'how far the tap was turned on or left on' and there was no evidence as to the water pressure at 144 Fairfield Street four years before the test was conducted (ts 140). It was also submitted that, although the appellant had said the shower had been left running for about a week, it was unclear whether he was referring to a calendar week or a working week (ts 298 - 299).
127 The trial judge decided not to rule on the admissibility of the water usage test at the commencement of the trial. His Honour determined that issue in his reasons for decision.
128 His Honour decided that the water usage test and associated evidence were admissible. He summarised the test and other evidence, as follows:
On 10 August 2012 officers from the forensic division conducted water flow tests of the shower which are recorded on Exhibit 25. The results of the tests are shown at Exhibit 26. The test procedure consisted of placing a graduated 10 litre bucket under the flowing shower (cold tap turned on to full flow) and timing how long it took to fill the buckets to the 10 litre mark. The test was conducted three times and the fill times were averaged. The average time was 22.5 seconds.
From this test, using the average time to fill a 10 litre bucket the [flow] rate, in litres per minute, was calculated at 26.27 litres per minute.
The volume of water over a seven day period using these figures was 268.83 kilolitres.
Mr Adrian Mack gave evidence that no work had been done in the bathroom since he moved back into 144 Fairfield Street after his brother had been arrested: 'I haven't even gotten around to fixing the hot water system yet in the front bathroom' (ts 196).
Detective Sergeant Scantlebury described the tap and when turned on the water started almost immediately and there is a constant flow (ts 230). He conceded in cross-examination that full flow starts after a quarter turn of the tap.
The Water Corporation records for metre readings at 144 Fairfield Street, Mount Hawthorn are Exhibit 27. They show metre readings commencing on 30 October 2007. On 28 April 2008 the kilolitres used in the intervening period was 180. On 27 October 2008 usage was 146 kilolitres. On 20 April 2009 the usage was 154 kilolitres for the intervening period. The prosecution contends that this evidence is admissible and disproves the accused's account that his mother was in the shower and he left the cold water tap on for a week. If the flow reading is accurate, this inference has substance because it indicates that the volume of water of 268.83 kilolitres discharged in a week is not reflected in the metre readings of 27 October 2008 and 20 April 2009 [222] - [227].
I doubt whether the water flow test can be described as an experiment. The flow of water from the showerhead on 10 August 2012 is an observable fact both as to volume and time. The projected calculations are simple arithmetic.
The issue is whether any inference can be drawn that the flow on 10 August 2012 is similar to the flow of water from the same shower head in December 2008. If no inference can be reasonably drawn as to similarity, then the evidence is irrelevant.
When Adrian Mack moved into the house he said he did not do any renovations to the rear bathroom. The evidence is silent as to whether the accused did or did not do any renovations to the rear bathroom involving the plumbing. Water coming from a shower head is a relatively commonplace event. Exhibit 27 does not show significant changes to water flows until 23 April 2010. No change of meter is recorded.
There is nothing to suggest that the readings in 2012 would give markedly different readings from 2008. The evidence of the tests is admissible.
In any event, commonsense would suggest that if a shower was running continuously for a week, there would be a significant increase in water usage.
Even drawing inferences most favourable to the accused, as a matter of ordinary knowledge about the flow of water supply by the Water Authority through domestic piping, the increase of only 8 kl cannot account for a week of water running continuously [230] - [235].
130 Finally, on this issue, his Honour said the water flow test and associated evidence was 'not decisive' [236]. It was 'part of the circumstances but from my point of view it simply provides confirmation of the conclusion I have reached independently of this evidence' [236].
131 At the hearing of the appeal, counsel for the appellant submitted that the trial judge erred in placing reliance on the water usage test in that the conditions existing at the time of the test were not substantially similar to the conditions existing at the time of Mrs Mack's death; in particular, the conditions at the time of her death, as described by the appellant in his video-recorded interview on 5 July 2012, 'were not known or too vague to be used for comparison'.
132 The legal principles governing the admissibility in a criminal trial of evidence of experiments and tests are set out in Birks v The State of Western Australia [2007] WASCA 29; (2007) 33 WAR 291 [48] - [55] (Buss JA, Steytler P & Pullin JA agreeing).
133 The critical facts, that were either found by his Honour or were the subject of unchallenged evidence, are these:
(a) On 10 August 2012, the police conducted the water usage test at 144 Fairfield Street by filling a 10 litre bucket, on three separate occasions, from the shower (with the cold tap turned on to full flow) in order to calculate the average water flow rate per minute. That flow rate was then multiplied by the number of minutes in a week. The product of that calculation was 268.83 kilolitres per week.
(b) When the water usage test was conducted the premises at 144 Fairfield Street were unoccupied.
(c) During the 2007/2008 year, when Mrs Mack and the appellant occupied the premises at 144 Fairfield Street, a total of 309 kilolitres was used.
(d) During the 2008/2009 year, when the appellant and, until her death in late December 2008, Mrs Mack occupied at the premises at 144 Fairfield Street, a total of 300 kilolitres was used.
(e) In 2012 a 'full flow' began from the shower after a quarter turn of the cold tap.
(f) No work was carried out on the plumbing in the bathroom at 144 Fairfield Street after the appellant was arrested.
(g) There was no evidence as to whether the appellant carried out any work on the plumbing in the bathroom before his arrest.
134 I am satisfied, for the following reasons, that the water usage test and associated evidence were admissible. First, the circumstances of the water usage test were sufficiently similar to those existing when, according to the appellant, he found Mrs Mack dying in the shower, to make the water usage test relevant to and probative of the facts which the prosecution sought to prove by its tender. Secondly, the discrepancy between the kilolitres used over a seven-day period based on the water test (268), on the one hand, and the kilolitres used during the 2007/2008 year (309) and the 2008/2009 year (300), on the other, was vast. Thirdly, the water usage test and associated evidence had no tendency to confuse or mislead the tribunal of fact. Fourthly, even if the appellant, in his video-recorded interview with the police on 5 July 2012, was referring to a 'working week' rather than a 'calendar week', the discrepancy revealed by the water usage test was extraordinary even if (favourably to the appellant and contrary to the ordinary and natural meaning, in this context, of a week) the appellant was referring to a working week. Fifthly, if, as the appellant asserted in substance in the video-recorded interview on 5 July 2012, he turned on the cold water tap and left it running for about a week to dispose of Mrs Mack's blood and to clean the area, it is reasonably to be expected that the water pressure would have been at least reasonable.
135 In any event, his Honour relied on the water usage test merely to confirm the conclusion he had reached independently of that evidence [236].
136 I am satisfied beyond reasonable doubt that, even if evidence of the water usage test and associated evidence were not admissible, no substantial miscarriage of justice has actually occurred. The trial judge relied on the evidence in question for a very limited purpose and the other evidence against the appellant was overwhelming. I have no reasonable doubt as to the correctness of the verdict that the appellant was guilty of murder.
137 Ground 4 alleges that the verdict on which the conviction is based was unreasonable and cannot be supported having regard to the evidence. The appellant's particulars confine this ground to complaints that:
(a) there was 'no body or any forensic evidence indicating that the appellant's mother had come to harm'; and
(b) the conviction was 'substantially based' on the appellant's statements to the police 'where there was an alternative explanation other than guilt' for those statements, namely the appellant's 'significant communication and perception difficulties'.
138 There is no substance in either of the complaints. As to the first particular, the defence case at the trial was run on the basis that Mrs Mack was dead. Indeed, the appellant's positive defence was that Mrs Mack had committed suicide, he had found her dying in the shower and he had later buried her body in the vicinity of Lake Gwelup. As to the second particular, for the reasons I have given in the course of considering ground 2, the appellant's attack upon the trial judge's analysis of and findings in relation to the appellant's lies is without merit.
139 I have, however, examined the trial record for the purpose of satisfying myself that the appellant's conviction for murder is not, having regard to the evidence, unreasonable or unable to be supported.
140 The trial judge said, towards the conclusion of his reasons for decision, that '[b]y the combination of all the circumstances', he was satisfied beyond reasonable doubt:
141 By s 30(3)(a) of the Criminal Appeals Act 2004 (WA), in the case of an appeal against conviction, the Court of Appeal must allow the appeal if, in its opinion, the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.
142 In M v The Queen [1994] HCA 63; (1994) 181 CLR 487, Mason CJ, Deane, Dawson and Toohey JJ said, in relation to s 6(1) of the Criminal Appeal Act 1912 (NSW) (which is in substance identical to s 30(3) of the Western Australian Criminal Appeals Act):
Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory (492).
See also Jones v The Queen [1997] HCA 12; (1997) 191 CLR 439, 450 (Gaudron, McHugh & Gummow JJ).
143 In Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559, Hayne J (Gleeson CJ & Heydon J relevantly agreeing) said that where it is alleged that a conviction is unsafe or unsatisfactory, the question for an appellate court is:
[W]hether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt (M v The Queen (1994) 181 CLR 487 at 492 - 493). It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. In the present case, the critical question for the jury was what assessment they made of the whole of the evidence that the complainant and the appellant gave that was relevant to the issue of consent to the digital penetration that had occurred in the park. That evidence did not require the conclusion that the jury should necessarily have entertained a doubt about the appellant's guilt [113]. (original emphasis)
See also Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan & Heydon JJ).
144 It is a question of fact whether a conviction is unsafe or unsatisfactory. This court must decide the question by making its own independent assessment of the sufficiency and quality of the evidence, and determining whether, notwithstanding that there is evidence upon which a tribunal of fact might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand. See M (492 - 493); SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14] (French CJ, Gummow & Kiefel JJ).
145 The appellate court's task is not to consider, as a question of law, whether there was sufficient evidence to sustain a conviction. See Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454, 473 (Deane, Toohey & Gaudron JJ); M (492 - 493); SKA [20].
146 Rather, the appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the evidence (in particular, the competing evidence). See SKA [22], [24].
147 However, an appellate court, in assessing whether it was open to the tribunal of fact to be satisfied beyond reasonable doubt that the accused was guilty, 'must not disregard or discount either the consideration that the [tribunal of fact] is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the [tribunal of fact] has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations': M (493); R v Nguyen [2010] HCA 38; (2010) 242 CLR 491 [33] (Hayne, Heydon, Crennan, Kiefel & Bell JJ); SKA [13].
148 In the present case, it was not in contest at the conclusion of the trial that:
(a) Mrs Mack was dead and that she died some time in late December 2008 (ts 263);
(b) after she died, the appellant disposed of her body in circumstances designed to ensure the decomposition of her remains (ts 264);
(c) after she died, the appellant told a number of deliberate lies to various people about whether Mrs Mack was still alive and, although he knew she was dead, the appellant used various means to convince people she was still alive (ts 263); and
(d) after she died, the appellant, by various means, transferred large amounts of money from Mrs Mack's bank accounts to accounts controlled by him (ts 263).
149 The critical issue at the trial was the cause of Mrs Mack's death; in particular, whether the appellant caused her death (as distinct from the mechanism of death) and, if the appellant caused her death, what intention he had at the material time.
150 The prosecution relied upon the following evidence in relation to the critical issue:
(a) the appellant's motive to gain access to the money and other assets which Mrs Mack had inherited from her husband;
(c) the appellant's deliberate lies which evidenced a consciousness of guilt;
(d) the implausibility of the appellant's account that Mrs Mack had committed suicide; and
(e) the appellant's admission that he had disposed of her body and his admission as to the circumstances in which he did so.
151 It is well-established that, upon a trial for murder, the fact of death and the fact that the accused caused the death, may be proved by circumstantial evidence. See Peacock v The King [1911] HCA 66; (1911) 13 CLR 619, 629 - 630 (Griffith CJ), 650 - 652 (Barton J), 660 - 663, 670 - 672 (O'Connor J); The King v Horry [1952] NZLR 111, 121 - 123 (Gresson J delivering the judgment of the Court of Appeal); R v Onufrejczyk [1955] 1 QB 388, 394 (Lord Goddard CJ delivering the judgment of the Court of Appeal); Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461, 465, 490 (Mason CJ, Deane & Dawson JJ).
152 In R v Rice [1996] 2 VR 406, Brooking JA (Charles JA & Southwell AJA agreeing) said in relation to the concealment by an accused of a person's body and death:
If the woman died from natural causes, or in any other circumstances than those of an unlawful and dangerous act on the part of the applicant, what did he have to fear if her death came to light? Any reasonable person must have realised that, by concealing her body and her death as he did, and telling the lies which he told, he ran a great risk that, if the body was found, he would be charged with murder. Why should a man take such a risk if the explanation of the death was an innocent one?
'She must have known when she cast the body into that place that if it ever was discovered, and if the fact came to light that she was the person who had thrown it there, a surmise would arise that she took the course in order to dissemble a homicide and the manner in which it had been effected.'
State v Kader 270 P 2d 160 (1954) at 173 (421).
See also Greer v The Queen (Unreported, WASCA, Library No 960120, 6 March 1996); Roberts v The State of Western Australia [2007] WASCA 48; (2007) 34 WAR 1.
153 Defence counsel submitted to the trial judge that his Honour should bear in mind that he was 'not dealing with the ordinary person' and that the appellant's conduct must be assessed 'through the prism of [the appellant]' (ts 259).
154 In my opinion, there is no doubt that his Honour, in evaluating the appellant's credibility (including, in particular, the credibility of his statements in the video-recorded interview with the police on 5 July 2012), took into account the evidence about the appellant's unusual personality and behaviour and defence counsel's submission that the appellant's conduct in relation to Mrs Mack's death was consistent with his needing time to process that occurrence [75] - [76], [213] - [218].
155 The material before the trial judge also included:
(a) The appellant's earlier video-recorded interviews with the police in which he resolutely maintained that Mrs Mack was alive. This stance necessarily included a denial that she had committed suicide, and demonstrated his ability to formulate and adhere to a deliberate lie.
(b) The evidence of the appellant's willingness to fabricate evidence to reinforce and defend that lie; for example, the card he sent to Mr and Mrs Chew [94] - [106].
(c) The recorded conversations between the appellant and Adrian. As his Honour noted, the contents of the recorded conversation on 6 May 2012 (being only two months before the interview with the police in which the appellant asserted that his mother had committed suicide) were remarkable in that 'the overall impression is of a person who is still considering a cause of death and its location' [174].
156 I am satisfied, after examining the trial record and weighing the evidence (in particular, the appellant's statements, including his exculpatory statements, in the video-recorded interviews with the police and the recorded telephone and other conversations with Adrian), that it was reasonably open to the trial judge to reject the appellant's defence and to be satisfied beyond reasonable doubt as to his guilt on the count of murder.
157 I have taken into account, in examining the trial record and weighing the evidence (in particular, the appellant's out of court statements), his Honour's findings and the unchallenged evidence as to the appellant's unusual personality and behaviour.
158 The trial judge was entitled to accept some of the appellant's out of court statements and to reject others.
159 A tribunal of fact, acting reasonably, was not precluded by the state of evidence at trial (in particular, the absence of a body or any evidence, apart from the appellant's out of court statements, as to a cause of death) from convicting the appellant of murder. A tribunal of fact, acting reasonably, was entitled to find, on the whole of the evidence, that the only reasonable explanation for the appellant's lies was that they were told deliberately and out of a consciousness of guilt (that is, he knew the truth would implicate him in the unlawful killing of Mrs Mack) and that they revealed knowledge of the cause and circumstances of Mrs Mack's death. Also, a tribunal of fact, acting reasonably, was entitled to reject the appellant's out of court statements on the issue of the cause of death and on the issue of whether the evidence as a whole exculpated, or tended to exculpate, the appellant or created a doubt, or tended to create a doubt, about his guilt. Further, a tribunal of fact, acting reasonably, was entitled to be satisfied beyond reasonable doubt, upon the combined force of all the circumstances, that the appellant killed Mrs Mack intending to bring about her death.
160 His Honour had the advantage of seeing and hearing Adrian and Detective Senior Sergeant Scantlebury give their evidence. His Honour's advantage in this respect was, however, significantly less than is usually the case because most of the evidence in the prosecution brief was tendered without objection by defence counsel.
161 The trial record does not require the conclusion that the trial judge must necessarily have entertained a doubt about the appellant's guilt. The verdict of guilty of murder was not unreasonable. It was supported by evidence that his Honour was entitled to accept and inferences that his Honour was entitled to draw. After paying full regard to the consideration that his Honour was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that his Honour had the benefit of having seen and heard the witnesses, I do not have a reasonable doubt as to the appellant's guilt on the count of murder or as to the correctness of his conviction on that count.
163 I would refuse leave to appeal on grounds 2, 3 and 4 because none of those grounds has a reasonable prospect of success.
165 The appeal against conviction must be dismissed.
166 As I have mentioned, the trial judge sentenced the appellant to life imprisonment and set a minimum term of 20 years before he would be eligible to be considered for release on parole. The sentence was backdated to 26 August 2010, being the date on which the appellant was taken into custody for the offence.
Appeal against sentence: the appellant's personal circumstances and antecedents and the expert reports before the trial judge
167 The appellant was aged 23 at the time of the offending and was 27 when sentenced.
168 The information before the trial judge included a report dated 5 January 2013 from Dr Gosia Wojnarowska (a consultant psychiatrist), a report dated 11 January 2013 from Ms Tina Marley (a clinical psychologist) and a pre-sentence report dated 22 January 2013.
169 Dr Wojnarowska noted in her report that the appellant continued to deny responsibility for the offending. She diagnosed that he was suffering from moderately severe depression and had 'high functioning autism'. Dr Wojnarowska elaborated on her diagnosis of high functioning autism:
Specifically [the appellant] presents with pervasive marked impairment in social interactions, characterised by a lack of social reciprocity, lack of eye contact and an inability to understand non-verbal communication. In addition, his speech is stereotypic of abnormal prosody and unusual sentence construction. He displays narrow repetitious interests; specifically he reported to be interested in computers, birds and native plants. Since his incarceration, he has only been noted to converse about native plants with the custodial staff and some of the other prisoners. His only elaboration during this interview was in relation to birds.
170 Dr Wojnarowska said there was evidence of impairment in the appellant's 'executive functioning'; specifically, he had difficulty with abstract thinking and this suggested frontal lobe dysfunction. He also exhibited depressive symptoms.
171 Dr Wojnarowska expressed the following views about the relationship between the appellant's mental state and his offending:
Autistic individuals are statistically more prone to violence as they have difficulty with correctly reading and interpreting social cues and their environment. They have a limited repertoire for regulating their emotion and behaviour. This, in conjunction with mental impairment, results in so-called situational violence whereby others, usually the carers, are subject to unplanned and unprovoked attacks. These behaviours are usually already present in childhood or adolescence. In [the appellant's] case there was no history of emotional and behavioural dysregulation in childhood or adolescence. There was no history of aggression. In my opinion, the violence he displayed in the index offence is independent of his Autism.
Impairment in so-called 'empathy', typical in autistic individuals, does not constitute either a causal or indirect link to predatory violence. A number of features of [the appellant's] offence, as outlined by His Honour Justice J McKechnie suggested a carefully planned and well organised crime which was committed for the purpose of obtaining money. [The appellant] has been well aware of the wrongfulness of his actions as evidenced by his attempts to conceal the crime and by continuously lying about it. This suggests a degree of callousness and should not be confused with a lack of empathy or lack of psychological mindfulness seen in autistic individuals. Just as with any other person, an autistic individual is capable of attachment, particularly to their primary care givers. Furthermore, autistic individuals are less prone to deception as they are less able to lie successfully. Lying requires a degree of insight into another person's way of thinking and this is frequently impaired in autism. This deficiency is not evident in [the appellant's] case. (emphasis added)
172 Dr Wojnarowska assessed the appellant's overall risk of future violent offending as low because the offence in question was committed 'under very specific circumstances where he had an easy access to the victim and her money'. His significant impairment in communication and social skills would preclude the development of a close relationship with another person for the purpose of gaining their trust in order wrongfully to exploit their assets.
173 Ms Marley commented in her report on the absence of a nexus between autism and violence:
Whilst there has been some research on the relationship between autism and violence, there is limited evidence to suggest those suffering from symptoms associated with Autistic Spectrum Disorders or other Pervasive Developmental Disorders are at greater risk for violence as a result of not being able to infer the thoughts or feelings of other people and thus, potentially experience deficits in regards to empathy than the general population. As such, violence propensity with a person suffering from Autistic Spectrum Disorder is likely related to the same factors as those who don't present with such symptoms (sense of entitlement, pro-violent thinking, impulsivity, poor consequential thinking, antisocial peer associates, (etc).
174 Ms Marley concluded that the appellant's 'reported unusual development with severe deficits in terms of his capacity to engage in meaning[ful] relationships with others is not considered to be correlated with the index offence of murder or his historical offending'.
175 Ms Marley said it was difficult to assess the factors which contributed to the appellant murdering Mrs Mack and his risk of reoffending 'due to the limited information available ... and the infrequent nature of homicide offending generally and the occurrence of only one offence of violence [by the appellant]'.
176 His Honour referred to the views of Dr Wojnarowska and Ms Marley as to the appellant's risk of reoffending, but his Honour did not make a finding on the issue. It is not extraordinary, however, for an offender who has committed a murder to be at a low risk of reoffending in a similar manner.
177 The trial judge accepted that the appellant was significantly impaired by his autism. However, he found, based on the unchallenged expert evidence, that there was no causal link between the appellant's autism and his commission of the offence [19]. His Honour nevertheless took into account the likelihood that prison will be a particular burden for the appellant, as a result of his autism, and he will be at significant risk of bullying and maltreatment within the prison system [19].
178 His Honour noted, rightly in my view, that the Department of Corrective Services will need to promote a comprehensive plan for the appellant's management in order to prevent bullying and maltreatment. See s 7(1) of the Prisons Act 1981 (WA), which provides, relevantly, that subject to the Act and to the control of the Minister, the chief executive officer of the Department is responsible for the welfare and safe custody of all prisoners.
179 The appellant has a prior criminal record. His previous convictions comprise multiple offences of dishonesty. On 18 June 2008, he was convicted of giving false personal details to police and using a false number plate. On 26 August 2008, he was convicted on 22 charges of causing a detriment to a person by fraud, nine charges of gaining a benefit by fraud, three charges of stealing and one charge of breaching a bail undertaking. These offences were committed between June 2004 and December 2007. No term of immediate imprisonment was imposed and they were mostly punished by community based orders. The trial judge said the appellant's prior criminal record confirmed his view that the appellant was 'a dishonest, devious individual' [23].
180 Although the appellant's previous convictions, and the fact the previous sentences had not achieved the purposes for which they were imposed, did not aggravate the seriousness of the offending in question, those matters demonstrated that the appellant was not, apart from the current offence, a person of good character.
181 His Honour gave no weight to the prosecution submission that the appellant had shown no remorse for his offending. His Honour accepted that the appellant's autism would 'largely preclude such an abstract concept or emotion' [24].
182 The appellant's crime significantly affected a number of people including the late Mr Chew (who had died by the time of sentencing) and his wife, the appellant's brother, Adrian, and the appellant's sister-in-law and stepsister.
183 The trial judge noted that the appellant, through his lawyers, had cooperated in reducing the burden of the trial by agreeing to the tender of many witness statements. His Honour reduced the minimum term he would otherwise have set by 1 year for that cooperation [26]. His Honour also allowed an additional discount of 1 year 'for other factors of mitigation' [26].
184 His Honour reiterated towards the end of his sentencing remarks that the appellant had deliberately killed Mrs Mack in order to gain financially [30]. His Honour added:
This places the crime in the upper level of seriousness. Your subsequent behaviour, lying to all concerned for many years, gives little reason for leniency. Your autism does not explain your crime much less excuse it [30].
Appeal against sentence: the ground of appeal
185 The sole ground of appeal alleges that the minimum term of 20 years was, 'in all the circumstances', manifestly excessive. It is not alleged that the trial judge made any express sentencing errors. The sentence of life imprisonment is not challenged.
186 The 'circumstances' relied on are the criminality involved in the offending, the appellant's autism, the appellant's antecedents and the sentences imposed in broadly comparable cases.
187 On 13 May 2013, Mazza JA granted leave to appeal.
Appeal against sentence: the appellant's submissions
188 Counsel for the appellant emphasised the following points:
(a) There was no evidence to suggest that Mrs Mack experienced 'excessive suffering or humiliation prior to her death'.
(b) The appellant's autism was 'a relevant and significant consideration when determining the need for personal deterrence' and this impairment 'substantially reduced the need for personal deterrence'.
(c) The appellant's crime was 'one of opportunity'.
(d) The appellant's age when he committed the offence.
189 Counsel for the appellant referred to numerous cases in submitting that the minimum term of 20 years imposed on the appellant 'was manifestly excessive when viewed against the lower minimum terms imposed in [other] cases'.
Appeal against sentence: the merits of the ground of appeal
190 The appellant was sentenced under the legislative scheme introduced by the Criminal Law Amendment (Homicide) Act 2008 (WA).
191 A non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 - 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531. See also Mikhail v The State of Western Australia [2012] WASCA 200 [19] (McLure P, Buss & Mazza JJA agreeing).
192 In Pedersen v The State of Western Australia [2010] WASCA 175, I made a number of observations (McLure P & Mazza JA agreeing) concerning the determination of the non-parole period where an offender is to be sentenced to life imprisonment for the offence of murder, and the sentencing court has decided to proceed under s 90(1)(a) of the Sentencing Act 1995 (WA) and fix a minimum period [41] - [46]. It is unnecessary to repeat those observations.
193 A ground of appeal which alleges that a sentence (including a minimum term) is manifestly excessive asserts the existence of an implied error.
194 It is necessary, in determining whether a minimum term is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the offence, any upper or lower limits on the available minimum term, the standards of sentencing customarily observed with respect to minimum terms for that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances and antecedents of the offender.
195 The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a minimum term is within the range imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a minimum term is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range is merely one of the factors to be taken into account in deciding whether a minimum term is manifestly excessive.
196 When this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range. See Neumann v The State of Western Australia [2013] WASCA 70 [30] (Buss JA, McLure P & Pullin JA agreeing).
197 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
198 In Barbaro v The Queen [2014] HCA 2; (2014) 305 ALR 323, French CJ, Hayne, Kiefel and Bell JJ said in relation to the notion of an 'available range' of sentences and the notions of 'manifest excess' and 'manifest inadequacy':
Reference to an 'available range' of sentences derives from the well-known principles in House v R ((1936) 55 CLR 499; [1936] HCA 40 (House)). The residuary category of error in discretionary judgment identified (House at 505) in House is where the result embodied in the court's order 'is unreasonable or plainly unjust' and the appellate court infers 'that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. In the field of sentencing appeals, this kind of error is usually referred to as 'manifest excess' or 'manifest inadequacy'. But this kind of error can also be (and often is) described as the sentence imposed falling outside the range of sentences which could have been imposed if proper principles had been applied. It is, then, common to speak of a sentence as falling outside the available range of sentences.
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some 'substantial wrong has in fact occurred' (House at 505) in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
Despite the frequency with which reference is made in reasons for judgment disposing of sentencing appeals to an 'available range' of sentences, stating the bounds of an 'available range' of sentences is apt to mislead. The conclusion that an error has (or has not) been made neither permits nor requires setting the bounds of the range of sentences within which the sentence should (or could) have fallen. If a sentence passed at first instance is set aside as manifestly excessive or manifestly inadequate, the sentencing discretion must be re-exercised and a different sentence fixed. Fixing that different sentence neither permits nor requires the resentencing court to determine the bounds of the range within which the sentence should fall [26] - [28]. (original emphasis)
199 I have reviewed numerous cases in which this court has heard and determined appeals against sentence for murder since the commencement of the Criminal Law Amendment (Homicide) Act. I have taken into account the sentencing dispositions in Atherden v The State of Western Australia [2010] WASCA 33; Butler v The State of Western Australia [2010] WASCA 104; Austic v The State of Western Australia [2010] WASCA 110; Pedersen; The State of Western Australia v O'Kane [2011] WASCA 24; The State of Western Australia v Silich [2011] WASCA 135; (2011) 43 WAR 285; Cockram v The State of Western Australia [2011] WASCA 179; Wongawol v The State of Western Australia [2011] WASCA 222; (2011) 42 WAR 91; Johnston v The State of Western Australia [2012] WASCA 18; Goodwyn v The State of Western Australia [2013] WASCA 141; (2013) 45 WAR 328; Khan v The State of Western Australia [2013] WASCA 193; The State of Western Australia v Lee [2013] WASCA 246; Silva v The State of Western Australia [2013] WASCA 278; Prestidge v The State of Western Australia [2014] WASCA 16; and Stinson v The State of Western Australia [2014] WASCA 72. I have also considered the other cases cited by counsel for the appellant.
200 It is well-established that where an offender's mental illness or psychological difficulties have not been self-induced (for example, by the ingestion of alcohol or illicit drugs), his or her condition is a relevant factor in the sentencing process.
201 The effect of mental illness or psychological difficulties (falling short of insanity) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. See R v Verdins [2007] VSCA 102; (2007) 16 VR 269 [25] (Maxwell P, Buchanan & Vincent JJA); Wheeler v The Queen [No 2] [2010] WASCA 105 [9] (McLure P, Newnes JA agreeing).
202 In the present case, there is no doubt that the appellant's crime was very serious:
(a) The appellant killed his mother in her own home.
(c) The appellant's motive was based on greed, namely to gain control of his mother's money and other assets.
(d) After he killed his mother, the appellant immediately gave effect to his motive by stealing from her bank accounts and forging her signature.
(e) The appellant buried his mother's body at night in a grave he dug. He added lime to the grave to hasten decomposition. His method of disposing of his mother's body was calculated to conceal her death and the cause of death. Her remains have never been recovered.
(f) The appellant deliberately and persistently told lies to divert attention from his crime, including to the police, his brother and other relatives.
203 The trial judge rightly described the appellant's offence as 'a most serious crime' [33].
204 Condign punishment, denunciation of the appellant's criminal conduct and general deterrence were significant sentencing considerations.
205 His Honour found, on the basis of expert evidence, that the appellant was significantly impaired by his autism, but there was no causal connection between the appellant's autism and his commission of the crime. The effect of that unchallenged finding is that the appellant's mental impairment did not reduce the blameworthiness or culpability of his offending conduct.
206 The trial judge accepted that prison was likely to be a particular burden for the appellant, as a result of his autism, and he took that factor into account in determining the minimum term.
207 Although Dr Wojnarowska was of the view that the appellant's overall risk of future violent offending was low, Ms Marley said it was difficult to assess the appellant's specific risk factors because of a lack of information.
208 In my opinion, although an opportunity for similar offending by the appellant is most unlikely to arise again, it was appropriate to give some weight to personal deterrence as a sentencing consideration. The personality features which drove the appellant's offending, in the context of his Honour's unchallenged finding that the appellant was dishonest and devious, indicated that the risk of similar offending, although highly unlikely, could not be dismissed completely.
209 The appellant's age at the time of the offending, namely 23 years, afforded him some very limited mitigation, even though it was not a factor relied on by defence counsel during the sentencing process. Indeed, defence counsel said at the sentencing hearing that the appellant was 'a mature man' when the offending occurred and 'youth [was] not ... on his side' (ts 144). The trial judge acknowledged in his sentencing remarks the appellant's age at the time of the offending and when sentenced [5].
210 It is true, as counsel for the appellant submitted, that there was no evidence to suggest that Mrs Mack experienced 'excessive suffering or humiliation prior to her death'. However, the absence of evidence to that effect, as a result of the appellant's refusal to reveal the location of her body or the true cause of death, was not a mitigating factor.
211 Similarly, counsel for the appellant's submission that the appellant's crime was 'one of opportunity' did not afford the appellant any mitigation. His Honour's unchallenged finding was that the appellant's motive for intentionally killing his mother was based on greed, namely to gain control of her money and other assets. It follows, from the existence of this motive and intention, that the killing was, at least to some extent, premeditated.
212 There was little by way of mitigation. The appellant (as was his right) went to trial, but he therefore did not have the mitigation that a plea of guilty would have brought. Nevertheless, he received credit in the sentencing process for his lawyers' cooperation in the course of the trial. Although his prior criminal record did not aggravate the seriousness of this offending, it demonstrated that the appellant was not entitled to any leniency on the ground he was ordinarily of good character. His relative youth at the time of the offending was mitigatory to a very limited degree.
213 In my opinion, the minimum term of 20 years did not exceed the range open to the trial judge on a proper exercise of his discretion. I have evaluated the 20-year period in the context of the sentencing framework under the Criminal Law Amendment (Homicide) Act, the rationale for the imposition of a non-parole period, the circumstances of the commission of the offence, the appellant's personal circumstances and antecedents, the customary standards of sentencing for murder and all aggravating and mitigating factors. I am satisfied, after making the evaluation, that the minimum term of 20 years was not unreasonable or plainly unjust. There is no proper basis for inferring error from the sentencing outcome.
216 MAZZA JA: I agree that the appellant's appeals against conviction and sentence must be dismissed for the reasons given by Buss JA.
(2014) 305 ALR 323
(2007) 33 WAR 291
(1990) 169 CLR 525
(2012) 87 ALJR 32
(1984) 58 ALJR 367
(1993) 178 CLR 193
(2013) 45 WAR 328
(1997) 191 CLR 439
(2007) 230 CLR 559
(1999) 195 CLR 665
(1994) 181 CLR 487
(1987) 163 CLR 454
(1998) 197 CLR 316
(1911) 13 CLR 619
(1995) 182 CLR 461
(2006) 16 VR 26
(2005) 14 VR 125
(2007) 228 CLR 618
(2007) 16 VR 269
(2007) 34 WAR 1
(2011) 243 CLR 400
(2011) 43 WAR 285
(2005) 224 CLR 300
(2011) 42 WAR 91
(2010) 242 CLR 491
(1974) 131 CLR 623