Meade v The Queen; DPP v Meade [2015] VSCA 171

EVIDENCE - Opinion evidence - Evidence regarding characteristics of brand of work boot - Witness worked for boot manufacturer - Whether relevant - Whether 'specialised knowledge' - Whether opinions based on specialised knowledge - Whether probative value outweighed by danger of unfair prejudice - Evidence properly admitted - Evidence Act 2008 ss 55, 79(1), 137.

CRIMINAL LAW - Sentence - Crown appeal - Murder - Victim attacked in own home - Applicant former husband of victim - Dispute over proposed relocation of victim and children to UK - Plea of not guilty - Sentence of 23 years' imprisonment with non-parole period of 19 years - Whether manifestly inadequate - Appeal dismissed.

Ms V Anscombe, Acting Solicitor for Public Prosecutions

**1 Following a trial before a Supreme Court jury, the applicant, Robert Meade, was convicted of the murder of his former wife. He was sentenced to 23 years' imprisonment, with a non-parole period of 19 years.

2 Mr Meade now seeks leave to appeal against conviction. The Director of Public Prosecutions has separately lodged an appeal against the sentence on the ground of manifest inadequacy. For reasons which follow, we would grant leave to appeal against conviction but dismiss the appeal, and we would dismiss the Director's appeal against sentence.**

**3 Mr Meade married Sally Brooks in 1999. They had three children, born in 2000, 2002 and 2004 respectively. Their relationship was marked by periods of separation and reconciliation, before they finally separated in late 2008 or early 2009.

4 They divorced in 2009. Ms Brooks stayed in the family home at Donvale and had custody of the three children. Mr Meade had access visits to the children on average once every three weeks.

5 In 2008, Mr Meade met IA, a Russian national, through an on-line dating site. IA and her daughter subsequently moved to Australia to live with Mr Meade. Mr Meade and IA were married in February 2011.

6 In late 2010, Ms Brooks (who was a British national) raised with Mr Meade for the first time her wish to relocate to the United Kingdom with the children. Mr Meade was at first opposed to the idea. In February 2011, Ms Brooks commenced proceedings in the Family Court to obtain authorisation for the relocation. In March 2011, Mr Meade consented to orders to that effect.

7 Mr Meade was a geologist. In January 2011, he commenced work with Uranium Equities Ltd ('UEL') as a contractor, on a full-time basis. He was based in Adelaide, where he and IA lived.

8 Ms Brooks and the three children were due to leave Australia for the United Kingdom on 8 July 2011. On 1 July, Ms Brooks was attacked inside her home. She suffered very severe head injuries from which she died in hospital on 11 July 2011.

9 Mr Meade was in Melbourne on 6 June and then on 18-19 June. He was in Victoria again between 28 June and 1 July. The circumstances of these visits will be examined in detail below. His defence at trial was that he was not in Melbourne at the time of the attack on Ms Brooks and had nothing to do with it.**

**10 The first proposed ground of appeal against conviction is that the verdict is unreasonable or cannot be supported having regard to the evidence. As will appear, the prosecution case was a circumstantial one. The contention for Mr Meade is that, while some aspects of his conduct might have given rise to suspicion, it was not open to the jury to be satisfied beyond reasonable doubt that innocent explanations for his conduct could be excluded.

11 It was common ground that the approach required of an appeal court when addressing this ground was as summarised by Maxwell P in R v Klamo,[1] as follows:**

1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.

A guilty verdict can only be said to have been 'reasonably open' to the jury if there was no aspect of the evidence which obliged - as distinct from entitled - the jury to come to a different conclusion. In Libke v R, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the 'unsafe and unsatisfactory' ground:

But the question for an appellate court is whether 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. 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 other words, the question posed in M v R, namely:

Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused's guilt?

requires the court of criminal appeal to decide:

whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.

To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a 'solid obstacle to reaching a conclusion beyond reasonable doubt' or whether, instead, the 'path to a conviction was open'.

12 The appeal submission for Mr Meade was that the guilty verdict was unsafe because:

**_(a) the Crown case was based on 'equivocal evidence of motive, opportunity and post-offence conduct';

(b) there was no evidence linking him to the crime scene;

(c) there was positive evidence of somebody else having been at the crime scene; and

(d) the Crown's hypothesis as to the relevant events 'involved considerable speculation'._**

**13 As to the first and last of these points, these reasons will show that there was ample evidence before the jury to establish that Mr Meade had both the motive and the opportunity to commit the crime. In the period preceding the attack on Ms Brooks, Mr Meade revealed to a work colleague what the prosecutor correctly characterised as a deep bitterness and hatred towards her,[2] and he was in Victoria, within easy driving distance of Melbourne, on the morning of the attack.

14 Although the forensic and medical evidence did not establish the time of the attack, the Crown case was that it had occurred between 9:00 am and 9:15 am. Reliance was placed on Ms Brooks's failure to dismiss a reminder on her phone at 9.10 am. The appeal submission for Mr Meade accepted that, if Ms Brooks had walked home after taking her car to the repair shop, she could have been home by about 9.10 am. In order to reach Trawool by 11.30 am, from where he made a call to his mother, Mr Meade would have had to start driving from Donvale by 9.40 am. This was said to throw 'considerable doubt' on whether he would have had time between 9.10 am and 9.40 am to carry out the attack, reposition the body, clean himself up and then make his way back to the car. We disagree. It was open to the jury to consider that a purposeful assailant could do those things within that time.

15 Reliance was also placed on the observation of a neighbour that Ms Brooks's garage door was closed at 3.30 pm, it having been seen to be open at 11.30 am and again shortly after 4.00 pm. Another neighbour gave evidence that, although he could not see the garage door from where he was sitting watching television, the door had been open on each occasion when he went to his study to check emails. In our view, this is a point of little consequence. The fact that one witness gave evidence of a closed garage door at 3:30 pm did not, in our view, oblige the jury to have a doubt about Mr Meade's guilt, given the other evidence in the case.

16 The Crown's hypothesis involved no more speculation than would be expected in a circumstantial case. As will appear, the Crown was able to provide a cogent explanation of the circumstantial evidence surrounding the killing, including in particular the evidence of Mr Meade's conduct in the relevant period, which we examine in detail below. The evidence as to what Mr Meade did - and failed to do - both before and after the killing was part of the circumstantial evidence on which the Crown could rely to exclude other hypotheses consistent with his innocence. As will appear, the Crown relied separately on certain aspects of Mr Meade's post-offence conduct as evidence of 'incriminating conduct', that is, as implied admissions of guilt.[3]

17 As to the second point, it is correct that there was a lack of evidence linking Mr Meade to the crime scene. As the appeal submission pointed out, there were no eyewitnesses to the murder and no evidence placing him in Melbourne during that trip to Victoria. As the submission also pointed out:**

**_(a) his fingerprints were not at the crime scene, nor was his DNA found;

(b) the amount of blood at the crime scene showed that the attacker must have been covered in blood, yet there was no sign of Ms Brooks's DNA in Mr Meade's (uncleaned) car;

(d) the soil on his car tyres did not match the soil near the crime scene._**

**18 The absence of direct evidence of this kind does not, however, render the conviction unsafe. As we have said, the Crown relied on circumstantial evidence to establish Mr Meade's guilt. The question is whether it was open to the jury to exclude beyond reasonable doubt any other hypothesis consistent with Mr Meade's innocence.[4]

19 As to the possible presence of someone else at the crime scene, the defence relied on DNA swabs from Ms Brooks's hands. The swabs of the hands revealed a mixture of DNA from at least two people. In each case, Ms Brooks was not excluded as a contributor to this mixture but Mr Meade was excluded.

20 In our view, this evidence was equivocal. It was unsurprising that Ms Brooks's own DNA was detected in each sample and there were many possible explanations for the DNA of another person being on her hands.

21 The defence theory advanced to the jury was that the attack on Ms Brooks was the work of a burglar who had been surprised by her return to the house. The defence relied on evidence that there had been a number of burglaries in the area in the period leading up to 1 July. There were also said to be signs of a 'disturbance' in the master bedroom upstairs. The drawers in a chest of drawers were open as was a jewellery box. The defence conceded that the jewellery box still contained some jewellery but argued that it was impossible to ascertain whether anything had been stolen, given that 'Ms Brooks was in the process of selling many of her belongings and was the only adult living in the house'.

22 In our view, it was well open to the jury to reject this alternative hypothesis. As the Crown pointed out in its written case on the appeal, the break-in was downstairs and certain boot prints apparently left by the assailant were limited to the downstairs area. Nothing was stolen from the handbag in the laundry, which included cash and a credit card, and there was no evidence at all of the house having been ransacked. The condition of upstairs rooms was consistent with the process of packing up which was going on, and there was nothing to suggest that any property had been taken. Evidence from local police established that other burglaries in the area were materially different both in nature and timing from what had occurred on the morning of 1 July.

23 In our view, this was a powerful circumstantial case. For reasons developed more fully in the next section of these reasons, it was well open to the jury to be satisfied, beyond reasonable doubt, that there was no hypothesis consistent with innocence which could explain the circumstances relied on. While it might have been open to a juror or jurors to have a doubt, there was nothing in the evidence which obliged a reasonable juror to have a doubt.**

24 As the trial judge said in his charge to the jury, Mr Meade's conduct falls into three periods, as follows:

(a) up to the evening of 30 June 2011;

(b) on 1 July 2011, the day of the attack on Ms Brooks; and

(c) in the days and months after 1 July 2011.

We start with the conduct leading up to 30 June 2011.

25 As mentioned earlier, Mr Meade was engaged full-time as a contractor with UEL. As he did not give evidence at the trial, and gave a 'no comment' record of interview, the only evidence about the nature of his work with UEL was that given by Mr Bryn Jones, the managing director of UEL. According to Mr Jones, Mr Meade was employed as general manager of exploration. Mr Jones was vague, however, about precisely what work Mr Meade had been doing in the period January-June 2011. When asked what duties Mr Meade had as general manager, Mr Jones said:

our business would involve both looking for new projects and trying to gain investments into our existing projects. So the preparation of data packages for the divestiture of assets and the collection of data for new projects.

26 Under cross-examination, Mr Jones confirmed that Mr Meade's official responsibilities comprised the following:

• overall responsibilities for field operations (management rather than actual execution);
• completion of application for government co-funding grants;
• preparation of data packages to gain investment in UEL; and
• project development, including desktop review of Australia's phosphate resource potential.

27 Mr Jones acknowledged that it would have been within the scope of Mr Meade's duties to do field work but, as far as he could recall, Mr Meade had not done any. There were staff who would 'executive' a field operation, and Mr Meade's job

would have been to make sure that all went smoothly and provide whatever resources were required for the guys ...

The field operations were in the Northern Territory and South Australia and it was Mr Meade's responsibility to oversee those operations from Adelaide.

28 UEL engaged Mr Meade under a contract with his company, Blue Gum International. Mr Jones confirmed that Mr Meade's employment was full time but that he 'gave him leave' to work on projects outside UEL from time to time, as long as this did not interfere with his work with UEL. Mr Jones was aware that Mr Meade

had some previous arrangements through Blue Gum that he was wanting to pursue.

29 Mr Jones was asked in cross-examination whether Mr Meade had discussed with him the possibility that there might be 'some opportunities' in the Mansfield area in Victoria. Mr Jones said

I think we'd discussed that there was [sic] phosphates in the area. I don't think we'd established that there's an opportunity for Uranium Equities to be in the area.

The stage had not been reached where the company was prepared to invest any money in that area.

**30 On Wednesday 8 June, Mr Meade should have been at work. Instead, he drove to Victoria. Mobile phone records showed that he was in Dunolly, near Bendigo, by the middle of the day. The following morning, 9 June, he was in Yea and then in Yarck, before arriving in Molesworth later in the day. Two days earlier he had booked accommodation at the Molesworth Hotel.

31 That evening, he sent a text message to Ms Brooks about seeing the children before they left for the UK. In the course of an exchange of messages, he told Ms Brooks two lies. The first was that he was unemployed and would be starting a new job on 1 July 2011.[5] The second was that he was in Jamieson, when in fact (according to the telephone records) he was in the Donvale area, where the family home was. Mr Meade also told Ms Brooks that he was endeavouring to sell an interest in a mining tenement. Mr Meade then travelled from Donvale to Glen Waverley and Springvale, before driving back to Adelaide. He was back at work at UEL on the morning of Friday, 10 June.

32 The Crown case was that his trip from Adelaide to the Donvale area was 'a dry run'. He was already planning the murder of Ms Brooks and this was a 'rehearsal'. The defence contention, at trial and on appeal, was that this was 'mere speculation'. It is important to point out, however, that no explanation was ever given by Mr Meade, or on his behalf, about what he was doing on this trip to Victoria. In particular, nothing was said to suggest that he had arranged with UEL to be on leave for 8 and 9 June or, alternatively, to explain what urgent matter had required him to travel to Victoria without his employer's knowledge or permission.

33 In a handwritten statement provided to South Australian police on 1 July 2011 (following the attack on Ms Brooks), Mr Meade said:**

I last travelled to Melbourne on the 8th June 2011 via car & returned to Adelaide on the 9th of June 2011. I regularly travel to Melbourne at least every two or three weeks to visit my children. I always drive so I have access to a vehicle ...

The last time I was at this house [the family house in Donvale] was 9th June 2011. There was a For Sale sign at the front.

**34 The prosecution contention was that this was an admission that Mr Meade had, indeed, seen the family home from the outside on this first trip. The defence contended that he had probably been mistaken about the date, and had in fact been referring to 19 June 2011 when - as was common ground - he had had his final access visit with the children. In the event, nothing turns on this, as the defence accepted what the phone records showed, namely, that Mr Meade was in the Donvale area on 9 June.

35 In a supplementary submission, counsel for Mr Meade acknowledged that there was 'no affirmative account' in evidence as to why he had been in Melbourne on 9 June. Nor was any possible explanation for the trip advanced, either in final address or on the appeal. The appeal submission relied, however, on evidence which showed that:**

• Mr Meade's mother lived in nearby Vermont;
• he had previously asked Ms Brooks to confirm that he could have access to the children on the weekend of 11-12 June;
• a text message he had sent while he was in the Donvale area indicated his desire to see the children as much as possible prior to their departure for the UK; and
• he had spent 'only five minutes or so in Donvale, suggesting that he was merely passing through'.

**36 Plainly enough, these disparate pieces of evidence do nothing to fill the explanatory gap. It may be assumed that Mr Meade wished to see his mother and his children as often as he could, but there was no evidence that he had done either of those things on this visit. An access visit would, of course, have required Ms Brooks' prior agreement and, in any case, a visit had already been arranged for the following weekend, 18-19 June.

37 Nor - importantly - would either of those possibilities explain why he had booked accommodation at Molesworth, 90 minutes from Melbourne, rather than (for example) staying with his mother as he regularly did, or why he had falsely stated in his text message to Ms Brooks that he was in Jamieson when he was actually close by, in the Donvale area.**

**38 Charles Nesbitt was also employed by UEL in June 2011. He worked in the geology department, which was headed by Mr Meade. On 14 June, Mr Meade emailed Mr Nesbitt, asking to see him. Mr Nesbitt went to Mr Meade's office, assuming that there was a work matter to be discussed. Instead, Mr Meade began to talk about 'the situation with his family and ex-wife'. Mr Meade told Mr Nesbitt that Ms Brooks was going to relocate to the United Kingdom permanently with the children. He said that Ms Brooks was 'relocating to remove herself from the situation she was in in Australia'.

39 Mr Meade then told a series of lies about Ms Brooks. He said to Mr Nesbitt that:**

• Ms Brooks was involved in hard drugs and alcohol and was in a relationship with someone who was also involved with hard drugs;
• Ms Brooks had been present when, earlier in 2011, their 11-year-old daughter had been raped;
• he had himself been a suspect in the rape and had had to 'submit samples to prove his innocence';
• he suspected that the rape was committed by Ms Brooks' 'boyfriend', who had subsequently moved to Queensland;
• his daughter could not testify against the 'boyfriend' without permission from both parents, and Ms Brooks would not give permission; and
• his son had been tied to a chair and beaten in 2010. (He gave Mr Nesbitt the impression that the son had died from his injuries).

began by asking me if I knew anybody and along with, I guess, gestures, hand gestures and facial expressions, I assume he was asking anybody that could perform a hit, for lack of a better word.

I said ... words to the effect that, ... 'Do you mean that someone that could perform a - a hit, like a hitman?' I then ... went on to explain why that would be such a bad idea.

**41 Mr Nesbitt then suggested to Mr Meade that there were other ways of dealing with such issues. He mentioned that he had two school friends, one a police officer, the other a lawyer, both of whom were 'upstanding professionals'. He also referred to websites 'which identified ways and means of dealing with things such as custody battles'.

42 When Mr Nesbitt mentioned the possibility of talking to a lawyer, Mr Meade 'expressed distrust in the legal fraternity and the Victorian Police'. He said that Ms Brooks 'was seeing an ex-judge' and that he (Mr Meade) had hired a private investigator to gather evidence against her. The investigator had witnessed the ex-judge entering Ms Brooks' home. When the private investigator had attempted to follow the ex-judge after he left Ms Brooks' house, he was intercepted by two individuals who 'asked him why he was following the judge, and essentially told him to stop following the judge.'

43 On Mr Nesbitt's assessment, Mr Meade 'was clearly distressed throughout this conversation'. Mr Nesbitt offered to lend him $500-$1000 towards legal costs 'if that was a concern'. Mr Meade declined the offer. At the end of the conversation, Mr Meade said that 'he couldn't help but think that a couple of .22s and a baseball bat could sort the situation out.' According to Mr Nesbitt, this was said 'in a half joking manner'. Mr Nesbitt was nevertheless sufficiently concerned by the conversation that he prepared an email which he sent to Mr Meade that evening, setting out a variety of options for dealing with the matters he had raised. In that email, Mr Nesbitt repeated his warning against 'doing anything that is not above board', saying that it 'may land you in a position where you will never see the kids again'.

44 In cross-examination, Mr Nesbitt confirmed that he had a clear memory of certain aspects of the conversation, including of Mr Meade saying, 'Do you know anyone who can help?' He confirmed that he thought that Mr Meade might be asking 'for some improper sort of help' and that he had responded by saying, 'Look, you don't need to do anything stupid. There are these options.' At the end of the conversation, however, Mr Nesbitt did not believe that Mr Meade was going 'to do anything'.

45 After sending the email to Mr Meade, Mr Nesbitt went away on a field trip to a remote location. When he came back into telephone contact on 6 July, he picked up a voice message from Mr Meade, which he thought was several days old. In the message, Mr Meade asked Mr Nesbitt to delete the email he had sent.

46 Unsurprisingly, the prosecutor drew particular attention in final address to these interactions with Mr Nesbitt as evidence of motive. According to the Crown, this 'farrago of lies' revealed 'the depth of the bitterness and hatred' which Mr Meade felt for Ms Brooks. It was 'an extraordinarily vicious lie' about the rape of his own daughter and about having had to be DNA-tested to clear himself. The reference to '.22s and a baseball bat' revealed 'a pretty sinister state of mind', and the subsequent request to Mr Nesbitt to delete the email showed that Mr Meade had realised just how incriminating the email would appear.

47 Defence counsel in final address acknowledged that Mr Meade had said 'exaggerated things' but argued that**

it was a display, it was a bloke, disempowered bloke, as Meade does, confabulating, exaggerating, overstating things, in order to do what, well what did Nesbitt say? It was attention-seeking, it was sympathy-seeking, and that's what it was, that's what it looks like ... it's a 50 year old bloke wanting people to feel sorry for him, drawing attention to himself ...

**48 In our view, it was well open to the jury to accept the Crown's contention that Mr Meade's diatribe against Ms Brooks expressed the true intensity of his animosity towards her. There was no challenge to Mr Nesbitt's assessment that Mr Meade was obviously (and genuinely) distressed at that time. Indeed, defence counsel acknowledged in the course of cross-examining Mr Nesbitt that he had responded appropriately in saying to Mr Meade, 'Don't do anything stupid'. On this evidence, the jury could conclude that Mr Meade was very angry indeed at Ms Brooks because of the proposed relocation to the UK.

49 It is convenient to deal here with a specific ground of appeal (ground 6), which concerns Mr Nesbitt's statement that he had assumed he was being asked by Mr Meade whether he knew of a 'hitman' who could assist Mr Meade. The appeal submission was that the evidence was inadmissible and that, because of its 'inherently prejudicial nature', there had been a substantial miscarriage of justice.

50 We disagree. When defence counsel objected to the answer, and the basis for the objection was explained to Mr Nesbitt, he then gave evidence of having asked Mr Meade specifically whether he meant 'someone who could perform a - like a hitman'. In short, on Mr Nesbitt's sworn evidence, he had expressed in the form of a question to Mr Meade exactly what he said he had assumed.

51 Moreover, the Nesbitt email sent that same evening had specifically warned Mr Meade not to do anything untoward. The defence did not suggest that this warning had been unwarranted. On the contrary, as we have already pointed out, defence counsel acknowledged to Mr Nesbitt in cross-examination that his response had been 'appropriate'.

52 In short, on the assumption that the statement about what Mr Nesbitt 'assumed' was inadmissible,[6] it was immediately followed by admissible evidence to the same effect, concerning Mr Nesbitt's question to Mr Meade regarding a 'hitman'. Moreover, as mentioned earlier, the defence effectively conceded that Mr Meade had indeed been alluding to the possibility of 'untoward' action. There was no unfair prejudice and no miscarriage of justice. This ground fails.**

**53 On Monday 27 June 2011, Mr Meade was at work at UEL. According to the managing director, Mr Jones, he looked unwell and was told to go home, so as not to risk 'a spreading of whatever he had'. Mr Jones confirmed that he expected Mr Meade to return as soon as he was fit to do so. That same afternoon, however, Mr Meade made a booking at the Molesworth Hotel for the nights of Tuesday 28, Wednesday 29, and Thursday 30 June.

54 The following morning, Mr Meade sent the first of a series of false messages to his employer, saying that he was too sick to come to work. In fact, by this time, Mr Meade was already on his way to Victoria. He checked in at the Molesworth Hotel at about 3:00 pm on 28 June. The hotel manager recalled him saying that he had driven from Adelaide and that 'he was going to Mansfield to meet with someone and then heading out Jamieson way'. She could not recall any mention of prospecting for gold.

55 On the Wednesday morning, 29 June, Mr Meade contacted IA by telephone, from the Yea area. He also sent a further false message to UEL, saying he was still very ill and was in bed. By lunchtime, he was in the Trawool area.

56 On the morning of Thursday, 30 June 2011, Mr Meade sent another false message to UEL, saying he was still far too sick to attend work. He was 'coughing up blood' and would be seeking medical assistance. In fact, at about 9:40 am, he called in at a service station in Mansfield for fuel. CCTV footage of that fuel stop showed him wearing dark trousers and boots, to which reference will be made below.[7] On the Thursday evening, Mr Meade telephoned IA from the Molesworth area. It was common ground that he stayed at the Molesworth Hotel that night.

57 The only explanation which Mr Meade gave police for having been in Victoria during this period was in the statement he prepared for South Australian police on the evening of 1 July. In that statement, he said:**

I left Adelaide @ 5 am on Tuesday the 28th of June 2011 to drive to St Arnaud VICTORIA for work. I stayed at the Molesworth hotel which is in the township of Molesworth VICTORIA. During my stay which was for prospecting (GOLD) I worked in the Strathbogie Ranges & I stayed there for the entire time. I made the trip alone & I did not work with anyone whilst there. I left Victoria @ about 10 am this morning (01/07/2011) & arrived back in Adelaide @ about 8:45 pm.[8]

**58 Some important observations about this statement can be made at this point. First, this statement, and some more detailed statements made in covertly-recorded private conversations with IA, constitute the evidence of Mr Meade's explanation for his journey to Victoria and his presence in Victoria at the time of his ex-wife's murder. Mr Meade's journey to and his presence in Victoria, near Melbourne, at that time was an important part of the circumstantial case against him. In the absence of a credible explanation, his journey to Victoria was, given all of the circumstances to which we have referred, potentially very incriminating

59 Secondly, there are aspects of the statement itself which could legitimately be seen by the jury as affecting its credibility. It is very scant. The lack of detail is striking in the circumstances. It contains no indication of any useful enquiry which might be undertaken to verify it. It is open to be viewed as misleadingly suggesting that the trip was a normal work trip when, on any view, that was not the case.

60 Nothing has ever been said by Mr Meade, or on his behalf, to explain what was so important, and so urgent, about the 'gold prospecting' that it had to be done under cover of a false story to his employer about being ill. As mentioned earlier, Mr Meade's arrangement with UEL was that he was able to do work for his own company (Blue Gum), provided that it did not interfere with his work for UEL.

61 In final address, senior counsel for Mr Meade submitted to the jury that there was 'nothing weird or unusual' about Mr Meade being in Victoria prospecting for gold. Counsel contended that it was 'very clear' from the evidence of Mr Jones that Mr Meade was**

a required soldier, he had work to do, he was a busy boy and he wasn't free to go off to Victoria, but if he sneaks off on a sickie, well he is free to go off to Victoria at that point, and that's what he did.

**62 This submission was maintained on appeal but it is not supported by the evidence given by Mr Jones. It was not suggested to Mr Jones in cross-examination that the company had been particularly busy in June 2011, nor that Mr Meade had had such demanding responsibilities at that time that, if he had asked for leave, the request would inevitably have been declined. As we have said, the only relevant proposition put to Mr Jones in cross-examination - with which he agreed - was that UEL was 'a busy company'.

63 Defence counsel further submitted to the jury that, if Mr Meade had indeed gone to Victoria with a view to committing the murder**

there was no need to stay for three days. There was no need to go and do what he did which was to hang around the area, go up the mountain. There was no need for any of that.

It was, of course, for the jury to evaluate this contention. In our view, they were entitled to view it as unconvincing, given the lack of evidence about what Mr Meade was in fact doing. The jury were entitled, moreover, to infer that Mr Meade had quite deliberately located himself in an area some distance from Melbourne, and for a long enough period, to enable him to claim - with some plausibility - that he had been engaged in geological investigation of some kind or another.

64 The jury could legitimately reason, in our view, that for him to have made a quick visit to Melbourne would only have served to make his travel the more suspicious. The defence also made much of the fact that Mr Meade had made the hotel booking in his own name. But the jury were likewise entitled to view this as necessary if the 'cover story' about prospecting for gold were to retain any plausibility.

**65 Friday, 1 July 2011 was the last day of school for Mr Meade's children before their departure for England. They were not flying out until Friday 8 July, but would be at home between Monday and Thursday of that week. Mr Meade was aware of this, as it had been arranged that he would have a final access visit with them during the week ending 8 July. So - as the prosecutor pointed out to the jury - Mr Meade knew that Friday 1 July was the last day on which Ms Brooks would be at home alone without the children. It was also the date which Mr Meade had given Ms Brooks, falsely, as the date on which he would supposedly be starting his new job in Adelaide.

66 The Crown case was that Mr Meade had made a very early start on the morning of 1 July. When police seized his phone just after midnight on 1 July, the alarm was set to 4:00 am. The 'snooze' function had been enabled. The argument for the defence was that the setting of the alarm could be better explained by the booking he had made that evening, after hearing of the attack on Ms Brooks, to fly to Melbourne early the following morning.

67 On the morning of 1 July, Mr Meade did not use his phone until approximately 10:59 am. The Crown case was that he had left Molesworth in the early morning, driven to Donvale and waited for the opportunity to surprise Ms Brooks on her own in the house. It was argued that the attack took place between 9:00 and 9:15 am after which (according to the Crown) Mr Meade had driven back to Trawool, a journey of approximately one hour and 45 minutes under average conditions.

68 At 11:33 am, from the vicinity of Trawool, Mr Meade telephoned his mother. After making that call, he sent a text message to Ms Brooks' mobile phone saying 'Hi Sally, we will be staying at mum's next week. Regards, Rob.' The Crown's contention was that the sending of this message was 'a cynical deceit', staged for the purpose of distancing himself from what had just taken place.

69 Unsurprisingly, the prosecution emphasised the period of 'telephone silence' up to 10.59 am, as it covered the period in which it was likely Ms Brooks had been attacked. First, the prosecution relied on call charge records to show that it was highly unusual for Mr Meade to go for such a long period without using his phone. On the appeal, counsel for Mr Meade pointed out that on each of the preceding days (28, 29 and 30 June) there had been lengthy periods when his phone did not communicate with any telephone towers.

70 Secondly, Mr Meade subsequently gave two quite different explanations to IA when she asked why he had not been contactable on the phone that morning. In a conversation on 19 August, Mr Meade told IA it was because**

I didn't think the mobile coverage was good and the battery was flat anyway. I hadn't charged it.'

A few days later, on 23 August, Mr Meade told IA that he had 'left [the phone] on the bar, by accident'. IA pointed out that, when the room had been cleaned, no phone had been found. Mr Meade explained that this was 'because I'd already come back through and picked up my stuff'. The prosecution's submission was that the inconsistency between these versions demonstrated that they were both lies. These lies were relied upon by the prosecution as implied admissions of guilt.[9]

**71 After using his phone near Trawool, Mr Meade headed back to Adelaide. Records obtained by investigators located him successively at Heathcote, St Arnaud and Bordertown, before he arrived back in Adelaide on the evening of 1 July. As the prosecutor pointed out, the decision to drive back at that time seemed inexplicable, given that it had already been arranged for him to spend much of the following week on a final access visit with the children.

72 Later that evening, after being informed of the attack on Ms Brooks, Mr Meade booked a flight to Melbourne for early the following morning, in order to see his children. When the police interviewed him that evening, however, he was told that he could not see the children. This is a point to which we will return.**

**73 We referred earlier to the single, brief, statement which Mr Meade gave to police on the evening of 1 July, which purported to explain his visit to Victoria but said nothing about the detail of his activities during the visit.

74 As we have mentioned, Mr Meade's proposed trip to Melbourne on the morning of 2 July to see his children was countermanded by South Australian police. This was done as a precaution while initial enquiries were made.

75 We have already observed that the credibility of the explanation Mr Meade gave for his trip to Victoria could have been seen by the jury as being adversely affected by the striking lack of detail in the statement he made. The circumstances existing on 1 July relating to Mr Meade's children were open to be viewed as heightening that concern. The paucity of the information provided, in circumstances where a full account could have assisted in obtaining access to his children whose mother had just been brutally attacked, was open to be viewed as undermining the credibility of the explanation he did give.

76 As late as 30 August Mr Meade was expressing puzzlement to IA in covertly recorded conversations that the police had still not come to talk to him. The jury were entitled to reason that, if his explanation was true, he would have been seeking them out, giving as much detail as he could provide of his whereabouts and activities at relevant times in Victoria and of the reasons for that journey at that time.

77 In late August, listening devices installed by investigators in his home recorded conversations between Mr Meade and IA, in which he acknowledged that he was under suspicion for Ms Brooks' murder and expressed concern about the need to confirm his whereabouts on the morning of 1 July. Thus, on 19 August, Mr Meade said:**

[T]o be sure we have to retrace my steps between 8:30 and ... 8 o'clock to 11 o'clock that's the time I want to prove, 'cause if I can prove from 8 I can't have been in Melbourne at 8. I can prove to 11 but I then drove to Trawool and make that call, it takes 30 minutes. Eight to 11, no-one can put me any[where] else on the planet. So that's the window I want to prove and they can go to hell.

**78 The first record in the evidence of Mr Meade saying anything to anyone about where he had been on the morning of 1 July, or what he had done that morning, was in a telephone conversation of 21 August with IA.[10] This was many weeks after the attack on Ms Brooks and by then - as he was at pains to point out to IA - people's memories of encounters with him on that day would inevitably have faded.

79 In subsequent conversations, Mr Meade purported to describe in more detail what had occurred that morning. He said to IA, 'I know where I was that week. I'd be very happy if I can just find those people - you know, it would just be done'. He referred, at different times, to:**

• a man 'who was having a cigarette' at the top of Cocker's Sluice at 9:00 am 'when I left a hilltop there';
• 'the man in the yellow Ute ... that I passed at 25 past 9 or thereabouts ... on that dirt road going in to the main road'.

80 On 20 August, Mr Meade purported to describe to IA how he had gone into Yea on the morning of 1 July:

It was raining in the morning up in the hills. ... I was very wet, my shoes and socks were soaking. That's why when I got into Yea I ... went to the toilet, got the potato cakes, got the coffee and came back and I took my shoes and socks off cause they were very wet.

**81 He gave further details in a subsequent conversation (21 August), saying that he had bought the potato cakes from 'Pieter in the yellow takeaway shop' and then the coffee from a coffee shop called the 'Frostbite'. While he was sitting in the car drinking his coffee, he said, '[t]he lady from the clothing shop came across the road'. Then, before leaving, he 'took the shirt off and put a T-shirt on and drove home'.

82 IA's response to this account was entirely understandable in the circumstances. Realising that the alibi needed to be verifiable, she pressed Mr Meade as to whether he had had a conversation with 'Pieter in the takeaway shop' and suggested that there would probably be a receipt for his purchases. Mr Meade, however, responded discouragingly and pessimistically. He doubted that he would be remembered in either shop, since it was '50 days ago'. He said firmly, and definitively, that he 'had no receipt' for the potato cakes. In our view, the jury were entitled to consider that the attitude he displayed rendered the explanation he had given for his journey to, and presence in Victoria, less credible.

83 A number of similar exchanges took place between them over succeeding days. Each time it was IA who encouraged Mr Meade to recall as much detail as possible of where he had been, and of those with whom he had contact, and who then urged him to make every effort to verify these encounters. Each time it was Mr Meade who seemed able only to find reasons for not investigating - either because too much time had passed, or because no one would remember, or because shops did not keep receipts for small purchases, or because if he did it himself this would be seen as 'interference'.

84 Although Mr Meade continued to rail against his predicament, he was consistently dismissive of IA's sensible proposals for verifying the alibi which he claimed to have. There are clear indications in the recorded conversations that IA had been urging such follow-up action since shortly after Ms Brooks' death. Thus, on 30 August, she is recorded as saying to Mr Meade, 'I told you in the beginning that you should find a private detective and do something' and, on 31 August, 'I told you 60 days ago [that] we need to find a private detective, we need to find a good solicitor'.

85 During the 30 August conversation, IA renewed her suggestion that they hire a private detective. The exchange is illustrative of Mr Meade's attitude:**

[IA]: We should hire a private detective and this person will try to find this person in the car.

Robert: Okay, and which private detective should we hire?

[IA]: I don't know, I don't know anything about that.

Robert: I don't either. So do we use a private detective that the criminal solicitor knows or do we just choose our own?

[IA]: Criminal solicitor can choose.

Robert: And have we engaged a criminal solicitor and set about a course of action?

[IA]: I think the solicitor.

Robert: See I think you believe if the yellow car can be found and the man with the beard, then he'll remember everything on the 1st of July at a particular time. A man in a car can easily be found. But what does that mean?

[IA]: What else can we do?

Robert: Honey, you're not listening to me. Proof is what we need.

[IA]: If we find this man we can, maybe he'll remember.

Robert: Maybe.

[IA]: But I told you in the beginning just a few days ago that we have to find these people who they still remember.

Robert: Okay well if you can find a way to go back in time now when you can still keep hurting me by saying that.

[IA]: No, no.

Robert: Cause I was trying to save money. And you know what? 60 days on you don't want to talk about it, you want to talk about what we should've done after 10 days, you then put me in a position where I feel stupid, I can't go back in time, and you don't help with a solution.

[IA]: I think we should find this person anyway.

86 Later in the same conversation, Mr Meade told IA that he had been 'trying to find people who were there that can help me, but I can't find them'. He said:

I was trying to find the person that was at a car near where I left in the bush and I went back up to that Golden Mountain area, I asked more neighbours. I can't find any evidence of who this person was. I don't believe they were from here.

There is no suggestion here, however, that he had gone back to Yea to visit the cafés he claimed to have visited on the morning of 1 July.

**87 The defence submission, at trial and again on appeal, was that the picture of Mr Meade which emerged through the recorded conversations was that of a person who feared that he was being unjustly suspected of the murder. As a result, it was said, he was in a panic and was desperate to clear his name.

88 We reject this submission. In our view, the jury were entitled to take the view that the recorded conversations undermined the credibility of the explanation Mr Meade had given as to his activities in Victoria at the relevant time.

89 At the same time as Mr Meade was procrastinating about any follow-up action to verify his claimed alibi, he was evidently very concerned to know what evidence the police investigators might have collected against him. For example, on 21 August he and IA discussed what Ms Brooks' movements were likely to have been on the morning of her death. Mr Meade then said that he wanted to know 'what was in the autopsy'.

90 He also said that he needed some technical advice as to whether his location could be identified if both his mobile phone and GPS were switched off. He said:**

We want to know for certain with Telstra and TomTom.[11] If those two things are off can they still be triangulated?

Robert: Then we know what the police know, because if my phone was off, we know they know it was off. I believe my GPS receives information, but does not send it back.

[IA]: What does this mean?

Robert: It means that the GPS sees the satellites, but the satellites can't see it.

[IA]: Oh, it's very (inaudible) on the contrary. (Laughs).

Robert: We need to know if triangulation works on those two devices, because if we know what the police know - we know what the police know...

[IA]: (Inaudible).

Robert: ...then we know what we're dealing with. If we know what's in the autopsy. If we know of the triangulation on the phone when it's off and when the GPS is off, that's the key thing, because then we know what they know. Do you know what I'm saying now?

[IA]: Yes.

Robert: We need to know what they know, as well as finding the man in the yellow Ute. If Peter can remember that conversation when I was leaving the car at that time, on that day, I'm gonna take those police.

[IA]: (Inaudible) don't have it.

Robert: Yeah. (Inaudible) we've got - get that information, I am gonna sue their fat arse for loss of income if they continue to question me, because that will prove where I was at 9.30 and 10.15 and I made a call at Trawool at 11.30. I cannot be anywhere other than that.

**91 Mr Meade subsequently expressed concern that, although police had given him back the GPS which he used 'in the field', they had retained the GPS which he used in his car. This suggested to him, he said, that 'they think they have some information from that GPS'. But, as IA astutely pointed out to him, there simply could not be any relevant information on the GPS since (according to Mr Meade) he had not been anywhere near the scene of the murder. She posed what, on Mr Meade's version of events, was the obvious question: 'How can they have [information], if you haven't been there? What can they know?' Mr Meade's response was: 'I have no idea. They kept my phone, that tells me they think something [sic] by keeping my phone'.

92 IA gave a similarly astute response when Mr Meade expressed concern about what investigators had learned about the footwear of the person who attacked Ms Brooks:**

Robert: They also believe that whoever did it had a pair of shoes on with similar sole to my work boots.

[IA]: What boots, but you didn't wear boots.

Robert: Are you listening to what I'm saying? I'm a fuckin' geologist with work boots, someone thinks they saw me, the police believe they have my DNA. It doesn't matter if my fuckin' work boots were here or not, the circumstantial evidence is someone saw someone like me, my DNA is there, boots similar to this or something that was found in the house. Do you realise the circumstantial evidence weighs up? You don't argue about where the fuckin' boots were.

[IA]: For this purpose people have a solicitor.

Robert: Honey, you're not listening.

[IA]: I'm listening to you. I just can't understand what I can do, ... (inaudible) ... I can't understand.

93 IA here responded exactly as might have been expected, given that Mr Meade had already told her that, he was not wearing boots on that working expedition. The jury were entitled to consider that if Mr Meade's explanation for his presence in Victoria were true, he would not have been expressing concerns in this way about the footwear or about the phone and GPS.

94 The last of the recorded conversations is from 3 September 2011. In the following fortnight, Mr Meade appears to have embarked on a flurry of activity. He visited both the Yea Takeaway, operated by Pieter Vlamis, and the Frostbite Café, operated (at the relevant time) by Tracey Pride-Elliot. (We deal with these visits below.) He also visited the Mansfield Hotel and spoke to someone working in the bottle shop, saying that he was

in the [Jamieson] area doing some prospecting and he was looking for anybody that might be interested in work and ... be able to help him with some soil samples.

**95 At around the same time, Mr Meade contacted a director of a small mining company, which had mining leases in the Strathbogie Ranges. He said he was interested in 'panning' for gold in the area. They discussed the geology of the area and, at one point, Mr Meade said he had a connection with some gold mining in the Walhalla area.

96 When Mr Meade visited the Yea Takeaway, he evidently made no attempt to establish whether Mr Vlamis recalled him having been there on 1 July. Instead, he took the extraordinary step of giving Mr Vlamis a small piece of gold, saying that it was a gift in appreciation of the good service which he had had from the shop. Mr Vlamis recalled Mr Meade saying that he was looking for gold.

97 It would seem that the first time Mr Vlamis was asked to recall whether Mr Meade had been in his shop on the morning of 1 July 2011 was more than two years later, in cross-examination at the trial in September 2013. In response Mr Vlamis agreed that it was possible Mr Meade had been in his shop that Friday morning and had purchased potato cakes but - not surprisingly - he said he could not recall whether he had been.

98 The September 2011 visit was also recalled by Lorraine Keeble, a shop assistant at the Yea Takeaway at that time. She recalled Mr Meade coming in at about 6.30 am. After she had served him and given him a receipt for his food, he asked if Pieter Vlamis was about. She asked Mr Vlamis to come. Mr Vlamis subsequently showed her the gold which Mr Meade had given him. She heard him ask Mr Meade why he was making the gift and recalled Mr Meade's response as being, 'Because you're always open when we come through town'. She also heard Mr Vlamis ask Mr Meade why he did not get a metal detector, to which Mr Meade said that he 'enjoys panning.'

99 Ms Pride-Elliot recalled Mr Meade visiting the Frostbite Café on a few occasions in early September 2011. She also recalled him having come some two months earlier. When asked in cross-examination whether she recalled him coming into her shop on 1 July to purchase a coffee, she said - again, unsurprisingly - that she could not recall.

100 This spate of activity was again said to reflect the panicked state of an innocent man wrongfully under suspicion. We disagree. The evidence of Mr Meade's activities in September in Yea was relied upon by the prosecution as implied admissions of guilt.[12] In our view, the jury were entitled to view this conduct as quite different from that which would have been expected of an innocent man. This behaviour also tended to confirm the falsity of Mr Meade's account of having been in Yea on the Friday morning. Even at that late stage, he could have asked each of the shop proprietors if they recalled his visit and purchases on the morning of 1 July. That was the obvious thing to do but he asked neither of them that question.

101 As the Crown contended, Mr Meade behaved - in the case of the Yea Takeaway - in such an attention-seeking manner that the jury could infer he was trying to implant in the proprietor's mind a vivid memory of himself as a gold prospector, in anticipation of questions being asked about a 1 July visit. Defence counsel effectively conceded this in final address, describing Mr Meade's conduct as**

just attention-seeking silliness. If you like, if there is a theme behind it, if there is any sense to be made of it, it's as [the prosecutor] correctly put it. It's almost like waving at the camera, 'Here I am', you know, 'I exist. Don't forget me, because later on, if someone comes knocking, I want you to be familiar with my appearance.'

...

[H]e was trying to put together support for a story ...

**102 The prosecution relied on certain parts of the evidence as establishing 'incriminating conduct' by Mr Meade, within the meaning of s 22 of the Jury Directions Act 2013 ('JDA'). That is, the relevant conduct was said to amount to an implied admission by Mr Meade that he had committed the offence with which he was charged.

103 Notice having been given in accordance with s 23(1) of the JDA, the question for the trial judge was whether,**

on the basis of the evidence as a whole, the evidence of conduct [was] reasonably capable of being viewed by the jury as evidence of incriminating conduct.[13]

If that question were answered affirmatively, then in accordance with s 25(1) of the JDA the trial judge would give the following directions:

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that:

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

**104 The judge ruled that the evidence was admissible as evidence of incriminating conduct. In his charge, his Honour gave the directions required by s 25(1) of the JDA. No challenge was made on the appeal to the admissibility of the evidence for this purpose, or to the directions given to the jury.

105 The aspects of Mr Meade's conduct on which the prosecution relied for this purpose were as follows:**

**_(a) his request to Mr Nesbitt to delete the email which he had earlier sent to Mr Meade, suggesting options for dealing with his expressed concerns about Ms Brooks and the children;[14]

(b) his failure, when first asked by police on the night of 1 July 2011 about his last visit to Melbourne, to mention that he had driven back from Melbourne that day;

(c) his lie to IA that he had not taken boots to Melbourne on the final trip;

(d) what were said to be lies told to South Australian police about the clothes he had worn on that trip;

(e) the September activities in and around Yea, directed at the creation of a false alibi;[15] and

(f) the two lies told to IA about why he had not used his mobile phone to call her on the morning of 1 July.[16]_**

**106 We have referred previously to most of these matters, but something should be said about the alleged lies concerning the clothes and the footwear worn during the final trip to Victoria. As to the clothes, Mr Meade was asked during the search of his home on the night of 1 July to identify the clothes he had worn during that trip. In response, he identified two shirts and a pair of trousers. He was asked if he had worn any other clothes during the trip and if there was anything in the laundry. He then identified a red checked shirt in a washing basket.

107 In a recorded conversation with IA, however, he said that police did not have the runners which he was wearing in Victoria and that, 'They didn't take the clothes I was wearing'. He later said to her, 'Well, why didn't they take these ones? These were the dirty ones. They took the clean clothes that were on the floor'. He was implying that the police had foolishly overlooked relevant items when, in fact, they had relied on him to identify the clothes in question. What Mr Meade did not say to police, however, but did say to IA, was that the trousers he had been wearing on the morning of 1 July had been 'left in the woods, they were filthy'. As the prosecutor pointed out to the jury, the clothes which Mr Meade had worn were never recovered. That included the boots which he was shown (by CCTV at Mansfield) to have been wearing.

108 In our view, the jury were entitled to view these aspects of Mr Meade's conduct, in the context of the evidence as a whole, as showing his awareness of his guilt. They were entitled to conclude that there was no other reasonable explanation for his having behaved in this way.**

**109 In the course of argument on the hearing of the application, senior counsel for the Crown submitted that, in considering the 'unsafe and unsatisfactory' ground of appeal, the Court could take into account Mr Meade's failure to give evidence. Reliance was placed on the decision of the High Court in Weissensteiner v The Queen,[17] a decision which must be read in the light of the subsequent decisions of the High Court in RPS v The Queen[18] and Azzopardi v The Queen.[19] At the request of the Court, both parties filed supplementary written submissions addressing this question.

110 Weissensteiner permits a jury (and an appeal court) to have regard, subject to the limitations explained in RPS and Azzopardi, to the failure of an accused to give evidence in a circumstantial case where there are facts known to the accused alone which are seen to require explanation. The reasoning in Weissensteiner, RPS and Azzopardi has been considered by this Court on a number of occasions when considering the unsafe and unsatisfactory ground.[20]

111 It might well have been put to the jury here that Mr Meade's presence in Donvale on 9 June 2011, and his journey to and presence in Victoria at the time of his ex-wife's murder, required an explanation by reference to facts known to him and to him alone.[21] In the case of the 9 June visit, no explanation was proffered by way of evidence on Mr Meade's behalf. In the case of his presence in Victoria at the time of the murder, the proffered explanation was open to be viewed as strikingly deficient. But that case was not put to the jury here. In the light of the emphasis in Azzopardi on the tension which exists between such a process of reasoning and certain fundamental features of a criminal trial,[22] it is not at all clear that the trial judge would have been prepared to permit the matter to be put to the jury in that way.

112 We have reached a firm conclusion that this verdict was open to the jury on the evidence and case put before it without reliance on Weissensteiner reasoning. Whilst that process of reasoning may have been open here, we do not rely upon it in concluding that the unsafe and unsatisfactory ground is not made out.**

**113 In the course of the cross-examination of one of the police officers who had searched Mr Meade's home on the night of 1 July, the jury passed a note to the trial judge, saying that a juror was 'stuck in a toilet'. His Honour invited senior counsel for Mr Meade to recommence his cross-examination when the juror returned, unless he was content for that juror simply to rely on the daily transcript which would be provided to the jury at the end of the day. Counsel's response was that, when the juror came back, the transcript of what had occurred could simply be read. By arrangement, an early lunch adjournment was taken and, on the resumption, the DVD recording of the evidence given during the juror's absence was played. defence counsel consented to this course.

114 The submission on appeal, however, was that this was 'an extraordinary situation amounting to a fundamental defect or irregularity going to the root of the trial'. The submission relied on the following passage from R v Panozzo & Iaria:[23]**

[T]he central role of the jury in our legal system is still accepted as it represents the determination by independent and impartial members of the general community of the issues raised by the making of an allegation of serious criminal conduct against an individual. The integrity and the perception of the integrity of that system is a matter of considerable importance. Only if the community can be entirely confident that the proper procedures have been followed will the reality and perception of integrity of the process be maintained.

According to the submission, each juror had taken an oath or affirmation to 'give a true verdict according to the evidence'. The playing of the DVD, it was said, could not remedy the fact that the missing juror had not seen the officer give his evidence in person, as the other jurors had.

**115 This submission must be rejected, in our view. The procedure adopted, with the concurrence of the defence, was perfectly adequate to remedy the fact of the juror's brief absence. It is, of course, a commonplace that evidence in criminal trials can be given by video-link - that is, with the witness not present in the courtroom. Recourse in the present case to a recording of the relevant evidence, before the cross-examination resumed, had the effect of putting the absent juror in the same position as each of the other jurors.

Ground 3: the admissibility of the evidence of Mr Meade's unrecorded implied admissions

**117 Mr Meade submits that the trial judge erred in refusing the defence application for the exclusion of the unrecorded implied admissions made by Mr Meade during the execution of a search warrant at his home on 2 July 2011.[24]

118 The evidence that was sought to be excluded was as follows. Mr Meade had said, of his boots, that he 'didn't take them to Melbourne' (this utterance being relied upon as an implied admission that he had in fact travelled to Melbourne); had twice identified only some of the clothing that he had worn on his trip to Victoria; and had volunteered fuel receipts from his trip to Victoria, but had failed to produce fuel receipts from his trip back to Adelaide.

119 Each of these statements was said to be an implied admission. They were not recorded. The failure to record the admissions was said to be in breach of ss 464H(1)-(2) of the Crimes Act 1958 and s 74D of the Summary Offences Act 1953 (SA). It was submitted that the evidence of the admissions should have been excluded by the trial judge pursuant to s 138 of the Evidence Act 2008.

120 Sections 464H(1)-(2) deal with the recording of confessions and admissions and provide, relevantly, as follows:**

464H Recording of confessions and admissions

(1) Subject to subsection (2), evidence of a confession or admission made to an investigating official by a person who -

(a) was suspected; or

(b) ought reasonably to have been suspected -

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless -

...

(e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or visual recording;

...

(2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of subsection (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances -

(a) are exceptional; and

(b) justify the reception of the evidence.

**121 The trial judge approached the application for exclusion on the basis that the Victorian police officer, Detective Sergeant Martin ('Martin'), was the relevant 'investigating official' for the purposes of s 464H, and that the South Australian police officers who received his telephone directions as to the carrying out of the search - including Detective Sergeant Wilson ('Wilson') - were acting as agents of Victoria Police.

122 His Honour also considered s 74D(1) of the Summary Offences Act 1953 (SA), which states relevantly as follows:**

74D - Obligation to record interviews with suspects

(1) An investigating officer who suspects, or has reasonable grounds to suspect, a person (the suspect) of having committed an indictable offence and who proposes to interview the suspect must ensure the following requirements are complied with:

(a) if it is reasonably practicable to record the interview on videotape, a videotape recording of the interview must be made ...

(The term 'interview' is defined broadly in s 74C of the same Act to include a conversation or part thereof. An 'investigating officer' is defined in s 74C to include a police officer.)

**123 His Honour rejected the argument that the alleged admissions made by Mr Meade during the execution of the general warrant in South Australia should have been recorded. In his Honour's view, Mr Meade was not, at that point, viewed (either subjectively or objectively) as a 'suspect' by the investigating official Martin,[25] but merely as a 'person of interest'.[26] His Honour also concluded that Mr Meade had not been subject to 'questioning' as required by s 464H(1).[27] His Honour ruled, further, that even if he were mistaken about these matters, he would have exercised his discretion under s 138 of the Evidence Act 2008 to admit the evidence.[28]

124 Section 138 allows, relevantly, for evidence obtained (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, to be admitted if the desirability of its admission outweighs the undesirability of admitting evidence obtained in that manner. Of the matters to be taken into account in undertaking this 'balancing' exercise, set out in s 138(3), his Honour made specific reference to the probative value of the evidence being 'neither particularly weak [nor] especially cogent'.[29] Of most significance to its probative value, according to the trial judge, was the contextual importance of the evidence in providing the background to the subsequently intercepted conversations between Mr Meade and his wife, which related to the fact that he had been charged with murder. If there had been any impropriety committed by police, his Honour said, it was not deliberate or grave but was an oversight in the context of a lawful search.[30]

125 Mr Meade's primary submission is that the trial judge erred in concluding that he was not a 'suspect' at the relevant time. As we have said, the trial judge accepted Martin's evidence that, at the time of the execution of the search warrant, Mr Meade was only a person of interest and not a suspect. Furthermore, he did not consider it that would have been reasonable to have regarded Mr Meade as a suspect at such an early stage of the investigation. His Honour found that Martin was 'properly ... exploring the possibility that the accused may have been involved in the attack upon his former wife'.[31] His Honour did not regard that as sufficient to make Mr Meade a suspect.[32]

126 The Court of Criminal Appeal in R v Heaney[33] considered the meaning of the words 'a person who was suspected or ought reasonably to have been suspected' in s 464H of the Crimes Act 1958:**

In Redenbach, Hampel J was concerned with s 464H and whether a person was suspected or ought reasonably to have been suspected on the material that was available to the police at the time. His Honour observed:

I don't think that for the purpose of categorising a person as a suspect one has to go further than to take the view that there are circumstances which tend to arouse suspicion of complicity. It doesn't have to be supported by objective direct evidence. The Act seeks to protect people who are suspected of committing certain offences from interrogation contrary to the provisions of the section. The whole purpose of this legislation is to ensure that if the person moves from the position of being a suspect to a position of being an accused, the Court has before it information in the form which renders voir dires unnecessary in most cases.

In George v Rockett the High Court, in drawing a distinction between 'suspicion and belief' as a state of mind, stated that 'it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person'.

The distinction between suspicion and belief as a state of mind was analysed by Vincent J in Walsh v Loughnan. Vincent J observed in his ruling:

Although the creation of a suspicion requires a lesser factual basis than the creation of a belief, it must, nonetheless, be built upon some factual foundation.

In our opinion, this observation is plainly correct. The section is not concerned with a state of mind founded upon speculation or 'mere idle wondering' (Kitto J in Queensland Bacon Pty Ltd v Rees) but is concerned with a state of mind arrived [at] upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created.[34]

**127 The reasoning in Heaney was very similar to that applied in R v Raso,[35] where the question was whether a customs officer was questioning a 'suspect' within the meaning of s 23V(1) of the Crimes Act 1914 (Cth). Phillips CJ and Marks J in their joint reasons considered that the applicant was not being interviewed as a suspect.[36] Their Honours observed that there was 'a clear distinction between a reason for suspicion that a person has committed an offence and a reason for investigating whether a person has done so', with s 23V applying only to the former. Ormiston J, in a concurring judgment, held that the word 'suspect' required 'a degree of conviction extending beyond speculation' as to whether an offence has been committed and requiring that the officer have formed a positive opinion that the person is a suspect based upon a factual foundation.[37] The reasoning in Heaney was very recently applied by this Court in Nabole v The Queen,[38] again in the context of s 23V, the issue being whether an implied admission was admissible, it not having been recorded.

128 The written case for Mr Meade pointed out that (i) after speaking to Martin, Wilson in South Australia had formed the view that he had sufficient grounds to obtain a general search warrant; (ii) Wilson had told Martin about the availability of 'general search warrants' in South Australia; (iii) Martin had asked that such a warrant be obtained; and (iv) Martin had spoken to a South Australian Police Inspector in order to obtain a verbal authorisation in respect of that warrant. In these circumstances, so it was said, the issuing of the warrant was also evidence that Martin suspected Mr Meade of having committed the offence. We disagree. Given the infancy of the investigation and the information then available, it would have been precipitate to characterise Mr Meade as a suspect at the time when he was asked any question during the course of executing the search warrant.[39]

129 Mr Meade contends that his Honour's conclusion - that Martin was the relevant investigator for all purposes - was mistaken and that the focus should also have been on Wilson and the South Australian officers. It had been accepted before the trial judge that the South Australian officers should be treated as the agents of Martin. Mr Meade now contends that Wilson and the other officers were clearly 'investigating officers', as provided for by s 74C of the South Australian Act, and were therefore bound by s 74D regardless of Detective Martin's state of mind.

130 On appeal it was said that the trial judge had not received the necessary assistance from counsel, as this submission had not been adequately advanced. The primary contention now is that the trial judge should have had regard to the inference to be drawn from the fact that a 'general search warrant' had been issued by the South Australian Commissioner of Police. As we have said, the contention is that Wilson and other South Australian police - and also Martin - must have regarded Mr Meade as a suspect in order to be able to apply for, and obtain, the search warrant.[40]

131 Detective Martin had requested that the South Australian police obtain a search warrant following the identification of items of interest on their visit to Mr Meade's premises earlier that day. Such a warrant was issued pursuant to s 67 of the Summary Offences Act 1953 (SA), which relevantly provides that the police officer named in a general search warrant:**

(4) ... may, at any time of the day or night, exercise all or any of the following powers:

(a) the officer may, with such assistants as he or she thinks necessary, enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that -

...

(iii) there is anything that may afford evidence as to the commission of an offence ...[41]

**132 Mr Meade argues that the only basis for 'reasonable cause to suspect' that there might be anything in his house that might 'afford evidence as to the commission of an offence' would have been if there were reasonable grounds to suspect that the offence had been committed by him. According to the argument, it can therefore be inferred that Wilson and other South Australian police believed - at the very least - that there were reasonable grounds to suspect him of having committed an offence.

133 Mr Meade submits that, although the trial judge stated that the South Australian police were presumably satisfied that the 'reasonable cause' referred to in s 67 of the South Australian Act existed, he did not consider whether that state of mind informed the question whether the relevant officer or official under s 74D or s 464H suspected, or ought reasonably to have suspected, Mr Meade of having committed an offence.

134 The items of interest observed by South Australian police on their first visit provided reasonable cause to suspect that there were things on the premises that might have afforded evidence as to the commission of an offence. The respondent submitted that there was a material difference between the states of mind required by the respective provisions, that is, between a suspicion that Mr Meade 'may have committed an offence' (s 464H(1)) and 'reasonable cause to suspect ... that there is anything [in his house] that may afford evidence as to the commission of an offence' (s 67(4)).

135 We would uphold that submission. In our view, the two states of mind are not co-terminous, nor does the existence of one entail the existence of the other. The search warrant state of mind is defined very broadly. In particular, the provision does not depend on the searching officer having a suspicion that an offence has been committed. All that is required is a suspicion as to the possible presence on the premises of 'things' which 'may' show that an offence has been committed.

136 By contrast, the state of mind which triggers the obligation to record an interview is a suspicion that**

(b) the person to be interviewed has committed that offence._**

At the time of this search, the officers knew that an offence had been committed but knew nothing about whether Mr Meade was in any way involved. They were searching Mr Meade's house because - he being Ms Brooks's estranged former husband - there were reasonable grounds for suspecting that there might be things in his house which would assist them in deciding whether or not he was involved.

**137 If, contrary to our view, the state of mind required for s 67 were the same as that required for s 74D and s 464H, Mr Meade is faced with the clear finding of the trial judge that he was not regarded as a suspect. What flows from the contention now advanced is that the trial judge may have questioned whether there was 'reasonable cause' under s 67. But no suggestion had been made before the trial judge that the search was unlawful, and there is no reason to doubt his Honour's conclusion that Mr Meade was not viewed as a suspect by the investigators.

138 If, contrary to the trial judge's finding - with which we respectfully agree - Mr Meade should have been treated as a suspect within the meaning of s 464H or s 70D, neither the South Australian police nor Martin was obliged to record Mr Meade's statements during the search. As the trial judge stated, questions that were reasonably incidental to the effective conduct of the search did not constitute 'questioning' within the meaning of that term as contemplated in s 464H. The fact that Mr Meade volunteered, when shown the list of items to be seized, that the boots had not been with him on his trip to Victoria did not trigger the operation of s 464H.[42] Any admissions made by him during the execution of the warrant were not made during 'questioning' (for the purposes of s 74D(1) of the Summary Offences Act 1953 (SA)) or during an 'interview' (for the purposes of s 464H of the Crimes Act 1958). Although the definition of 'questioning' in the Victorian Act, and the case law dealing with the concept of an 'interview' in the South Australian Act, give these concepts a fairly broad scope,[43] they will not usually extend to conversations which take place between police officers and a suspect during the execution of a search warrant on the suspect's premises.

139 It is clear from the text of div 30A and s 464H that the requirement to record admissions or confessions is connected to the formal process of interrogation or interview, albeit that some parts of s 464H are not confined to admissions or confessions made during such interrogation or interview. As Toohey J stated in Heatherington v The Queen,[44] the policy underlying these provisions was that universal tape recording of interviews with suspects would have substantial benefits for the administration of justice.[45]

140 Section 464H is concerned with admissions or confessions made before 'the commencement of questioning' (s 464H(c)) or 'during questioning' (s 464H (d)(e), (f)) although questioning may take place on more than one occasion and in more than one place.[46] These provisions were not intended, in our view, to encompass admissions arising from casual remarks which have no proximity in time or place to an interrogation or an interview, and which do not arise from questions asked for the purpose of determining the suspect's involvement in the relevant offence[47] or for the purpose of introducing his answers into evidence. Such admissions as were here made in the context of the execution of a search warrant were made in response to some inquiry about items to be seized. Some were not in response to any questioning and none arose from 'questioning' of the kind contemplated by s 464H.

141 If, contrary to that view, the statements were made in the context of 'questioning' a 'suspect,' within the meaning of s 464H, no error has been shown in the trial judge's conclusion that the evidence should not be excluded pursuant to s 138. In addition to the factors mentioned by his Honour, we also take into account the fact that, at the time that the admissions were made to South Australian police, their significance would not have been appreciated. It was only as further information came to light relating to the offending, and to his movements on the day that the murder occurred, that the full impact of Mr Meade's remarks, as explained by the trial judge,[48] could have been understood.

142 There is an unresolved question as to whether implied admissions fall within the meaning of 'admission' or 'confession' for the purpose of provisions such as s 464H. In relation to the obligation to tape-record admissions under s 23V(1)(b) of the Crimes Act 1914 (Cth), Redlich JA (with whom Weinberg and Priest JJA agreed) said in Nabole:[49]**

The fact that implied admissions have been held to fall within the definition of an 'admission' in other legislation does not illuminate the question which arises under the distinctive regime established by s 23V. Allowing that the protective purpose of s 23V is achieved by requiring admissions to be recorded once the person is a suspect, the section assumes that the investigating officer is able to identify a statement made as an admission and hence that it should be recorded. Thus where it is not reasonably practicable to tape record admissions when initially made, s 23V(1)(b) prescribes a method for the investigating official to record and verify the admissions that were not tape recorded.

No difficulty arises where the statement constitutes an admission of actual guilt or of an obvious fact that tends to prove guilt. But the statutory obligation and its exceptions are not easily reconciled with its application to implied admissions, as demonstrated by the facts of this case. It may not be possible to characterise a statement as an implied admission until well after it is made when the falsity of the denial or assertion of fact is discovered. The confirmation procedure under s 23V(1)(b) may be impractical if it only becomes clear upon further investigation that the statements constitutes an implied admission.

Section 23V(5) enables the judge to admit an implied admission into evidence, notwithstanding the absence of a tape recording, where it would not be contrary to the interests of justice. The fact that the falsity of an exculpatory statement does not become known until sometime after the statement was made when it is no longer practicable to seek confirmation of the making of the statement may inform the discretionary question whether to admit the evidence.

In view of the conclusion I have reached on the primary issue in the appeal, and as the Director concedes that the statements were admissions for the purpose of s 23V, I shall assume, without deciding the question, that each of the statements were admissions.[50]

**143 We shall also assume, without deciding, that an implied admission is caught by s 464H and s 74D. The observations in Nabole about the difficulty of investigators perceiving that an utterance may constitute an admission are presently pertinent. That is particularly so in this case, as the trial judge explained. It was only subsequent events that demonstrated that they had the quality of significant implied admissions of guilt. Assuming that s 138 applies to an implied admission that was not understood to be an admission until some time after its making, it is obvious that to require such admissions to be recorded is wholly impracticable.

144 In a footnote to his written submissions, Mr Meade suggests that the terms of s 464H mean that any breach of that section requires automatic exclusion of the evidence in question, unless the exception in s 464H(2) applies. He contends that the trial judge did not turn his mind to that exception. The trial judge furnished this Court with a judge's report, in which he addressed this aspect of the ground of appeal. In his report, his Honour notes that this question was fully explored in discussions with counsel, who expressly disavowed any reliance upon s 464H(2). His Honour reported that it was counsel's view at that time that, as the statements in question had been made in South Australia rather than Victoria, that section would have no application. As such, the question of the applicability or otherwise of the exception in s 464H(2) did not arise, with counsel seeking instead to invoke s 138 as the sole basis for the exclusion of the evidence. Had s 464H been relied upon, his Honour states that he would have found that the exception in sub-s (2) applied.

145 Further, for the reasons outlined above, we would agree with the trial judge's assessment that the exception created by s 464H(2) would also have applied here - that is, that the evidence ought to have been admitted on the basis that the circumstances surrounding it were exceptional and justified its admission.

**147 Footprints in blood and soil at the crime scene, apparently left by the assailant, had been made by size 12 work boots manufactured by the Redback Boot Company Pty Ltd from that company's 'Classics' range, of which the 'Bobcat' is the most popular. Mr Meade owned a pair of size 11 Redback boots which were seized by police from his home in South Australia. Those boots did not make the footprints found at the scene. Mr Meade told police that he had not taken those boots with him to Victoria.

148 As mentioned earlier, CCTV footage taken at a BP petrol station near Mansfield the day before the fatal attack shows Mr Meade filling his car with petrol. He is wearing work boots. He did not identify those boots to South Australian police who attended and searched his home seeking to obtain, amongst other things, the clothing and footwear which he had taken with him to Victoria. Those boots have never been located.

149 Police obtained a statement from Mark Edwin Cloros, the marketing and product manager of Redback Boot Company Pty Ltd. He has occupied that position since 1990 and has been involved in the Australian footwear industry since 1979. Mr Cloros watched the CCTV footage and made a statement on 30 May 2012, in which he detailed characteristics which he said he could identify in the footwear that Mr Meade was wearing. His statement contained the following conclusion:**

Based on these identified features, it would not be unreasonable to conclude that the boots worn by the male in the CCTV footage I was supplied ... are Redback 'Bobcat' boots. A number of these features are unique to Redback boots, and the sum of all these features, in my opinion, narrow the boot down to in all likelihood being a Redback 'Bobcat' boot. These boots are part of the Redback 'Classics Range' of boots.

The only impediment to being absolutely sure that they are Redback 'Bobcat' boots is the quality of the video and the fact that the boots appeared to be well worn.

**150 The statement identified nine features upon the basis of which this conclusion had been drawn. In terms of direct comparison with the Bobcat boot, the Cloros statement expressed the opinion that four of the identified features were 'consistent with' that boot. One of those features, the heel and wedge shape, was described as being 'unique' to the Bobcat boot.

151 Mr Cloros's statement also expressed the opinion that images he had been shown of footprints left at the crime scene were of footprints made by boots from the Redback Classics Range of which the Bobcat is the most popular. No objection was taken to that part of Mr Cloros's evidence. It was uncontroversial.

152 Prior to empanelment, a voir dire was conducted at which Mr Cloros was examined. At the conclusion of the voir dire, defence counsel objected to the admission of Mr Cloros's evidence, other than the evidence he gave as to the identification of the boots which had made the footprints at the crime scene.

153 The trial judge summarised the evidence which was objected to in the following terms:**

In summary, Mr Cloros's evidence was that the work boots worn by the accused, as shown on the DVD, were consistent with 'Redback Bobcat' boots. They could, however, have been work boots manufactured by some other company.[51]

154 The trial judge rejected a submission, based upon the High Court decision in Smith v The Queen,[52] that Mr Cloros's evidence was founded on material no different from the material available to the jury on its own observation. The trial judge held that, unlike the position in Smith, Mr Cloros was able to point to distinctive features of the boots which would not be apparent to the jury in court.[53] The trial judge rejected the submission that Mr Cloros did not relevantly have specialised knowledge, observing:

He sees more, and is better able to interpret the CCTV footage, in relation to the classification of these work boots, than any potential juror.[54]

**155 In relation to a submission made that the evidence should be rejected under s 137 of the Evidence Act 2008, the trial judge observed that, after the voir dire, Mr Cloros was saying no more than that there was a 'realistic chance' that the boots were Redback boots and that this would be well understood by the jury.[55] There was no danger, in his Honour's view, of the jury being 'blinded by science'.[56]

156 His Honour considered that the probative value of Mr Cloros's opinion was 'potentially significant', given that Mr Meade was seen wearing slip-on work boots of the general type worn by the person who attacked Ms Brooks the following morning, and that those slip-on work boots had never been found.[57] His Honour considered that Mr Cloros's evidence of what was shown on the CCTV footage 'adds something' to the rest of the evidence in the case about boots and considered that there was little danger of unfair prejudice.[58]

157 Mr Cloros gave evidence before the jury the effect of which was, relevantly, as the judge had summarised it in his ruling. In his evidence-in-chief he described features of the boots he observed on the CCTV footage as being 'consistent with' Redback boots. He said that, while the quality of the footage meant that he could not be 100 per cent sure, nothing he could see ruled out the possibility of the boots seen in the footage being Redback boots.

158 In cross-examination, Mr Cloros was asked to address a number of other brands and types of boot, giving his opinion as to whether those boots could or could not be excluded or ruled out. Some could be ruled out, some could not. Pressed to identify the features of the boots which he could make out, Mr Cloros referred repeatedly to being able to see 'glimpses' of the elastic 'gusset' on the side. He emphasised that his opinion was based on his viewing of the entire footage.

159 In final address, the prosecutor relied upon Mr Cloros's evidence as part of its circumstantial case. It was put to the jury that, within 24 hours of the attack, Mr Meade was wearing boots which - according to Mr Cloros - could have been boots of the type which left the footprints at the crime scene, and which had never been recovered.

160 In his final address, defence counsel relied upon some aspects of Mr Cloros's evidence in relation to a separate matter, said to be exculpatory, which concerned wear patterns. Otherwise, he invited the jury to carefully review the CCTV footage themselves. Counsel submitted:**

Mr Cloros says well they might be Redbacks, I am inviting you to conclude they're most likely not to be.

**161 In the charge, the trial judge told the jury that Mr Cloros's evidence had not gone beyond the expression of an opinion that the boots being worn by Mr Meade at the petrol station 'may have been Redback work boots of a particular type, of the type that is in fact the source of the impressions that were left in the laundry'. The trial judge directed the jury in relation to the manner in which they should approach expert evidence, and did so in terms which were entirely conventional and as to which no complaint is made.

The learned trial judge erred in admitting evidence of Mark Cloros's opinion as to:

(i) the features of boots worn by the applicant on 30 June 2011 as shown in CCTV footage from the Mansfield BP petrol station; and/or

(ii) those boots being 'consistent' with the type of Redback boot which produced the footprints in blood and soil at the crime scene.

**163 It was submitted, relying on Smith, that Mr Cloros's opinion evidence was not relevant, as it was not his expertise which established a relevant 'link' between Mr Meade and the boots, rather it was the CCTV footage itself. It was further submitted that, whilst Mr Cloros 'undoubtedly had knowledge regarding boots and Australia's boot markets', he did not have 'specialised knowledge' within the meaning of s 79(1) of the Evidence Act 2008. First, it was said, he had never before engaged in the task of identifying boot features in CCTV footage or any similar activity. Secondly, it was said, in order to constitute an area of 'specialised knowledge', there must be an independent means of gauging the reliability and validity of the opinion, and there was none.

164 Mr Meade also placed particular reliance upon the decision of the High Court in Honeysett v The Queen,[59] a judgment delivered after the trial. It was submitted that, as in Honeysett, Mr Cloros's opinion as to what the CCTV footage showed was not 'based wholly or substantially' on any specialised knowledge but rather on his ability to see what was on the CCTV footage.

165 Finally, it was submitted that the evidence should have been excluded under s 137 of the Evidence Act 2008, given the poor quality of the CCTV footage, the fact that Mr Cloros could not positively state that these were Redbacks, and the fact that Mr Cloros had been made aware prior to reviewing the footage that the assailant had worn Redback boots.

166 In the course of oral submissions, counsel for Mr Meade accepted that Mr Cloros was an expert in the characteristics of the various relevant boots and that he could properly have given a detailed description of them. Counsel maintained, however, that Mr Cloros was not an expert in analysing CCTV footage or pictures of boots and that the members of the jury were just as capable of identifying features of the boots, after they had been given a detailed description, as he was.**

**167 The evidence which Mr Cloros gave in the trial was more concise than that which he had given on the voir dire. That was because the relevant issues had been fully explored on the voir dire and Mr Cloros was a witness who was prepared to make concessions and to accept qualifications. As indicated, his evidence before the jury was, as the trial judge summarised it in the charge, no more than that the boots shown on the CCTV footage could be Redback boots but that they could be other brands as well.

168 Mr Cloros's original statement had been more emphatic but he had readily conceded on the voir dire that he was unable to positively state that the boots shown in the footage were Redback boots. In his statement he had suggested that one feature which he identified on the CCTV footage was 'unique' to Redback boots. In his examination on the voir dire, he conceded that other boots had a 'not dissimilar' feature and that he could not conclude that they were Redback boots on the basis of that characteristic.

169 On the voir dire, Mr Cloros was taken through the CCTV footage frame by frame and asked to identify the various features which he said that he could see. It became clear that there was difficulty in making out all of the features, but Mr Cloros asserted that he could see elastic sides, which he referred to as 'a gusset', and indications of stitching. He was examined at length about these features. This was repeated in cross-examination before the jury.

170 On the voir dire, Mr Cloros was extensively questioned about other boots said to be consistent with what was seen on the CCTV footage. The interchange between defence counsel and Mr Cloros on this topic is important.

171 Defence counsel showed Mr Cloros photographs of six other types of boots. The first was of a boot described as a Blundstone B 410. Mr Cloros immediately volunteered that the boot shown in the CCTV footage was more similar to a different style of Blundstone, which the witness described as 'their 400 series' and 'not a 410'. Whilst he would not exclude the B 410, he said, by reference to particular aspects of the footage, that he considered the boot shown to be 'similar to another Blundstone style but not this Blundstone style'.

172 Defence counsel then showed the witness a photograph of a Blundstone B 500. The witness said that, whilst he also could not rule out this boot, he did not believe that it was the boot depicted in the CCTV footage. The witness then volunteered that there were Blundstone boots similar to the Redback boots, and he volunteered another similar brand, which he referred to as 'Oliver'. He then observed, referring to the two photographs which he had been shown to that point:**

There are Blundstones and Oliver boots that look similar to ours. These are not the two.

**173 It can be seen that, while counsel's attempt to identify other similar boots did lead to the identification of other possibilities, they were not the possibilities which counsel himself had suggested. Instead, the witness identified a different style of Blundstone and another boot made under the brand name 'Oliver'.

174 The third photograph was of a boot referred to as a 'Baxter Spitfire'. The witness agreed that this could be the brand of boot depicted in the CCTV footage but not in the colour configuration which was shown in counsel's photograph. He said that there was another colour configuration for that boot which would be consistent with what was shown in the video.

175 The next photograph was of a boot referred to as the 'Kings 15480'. The witness agreed that this boot was very similar to what was shown in the video and that the boot in the video could be a Kings 15480.

176 The fifth photograph was of a boot referred to as a 'Hobart'. The witness described this boot as being 'less preferable' than others. He said he did not believe that this was the boot shown in the CCTV footage and eventually said he was very confident that it was not. He went on to repeat that there were other boots which were also consistent with what was seen in the CCTV, being the 'Baxter', the 'Kings' to a lesser extent, and what the witness described as 'other' models of Blundstone (which we take to be a reference to models other than those in defence counsel's photographs). Asked to explain why he was excluding the 'Hobart', Mr Cloros gave reasons by reference to the CCTV footage as to why he had reached that conclusion.

177 The final photograph was of a 'Rossi R700'. It was put somewhat diffidently to Mr Cloros by defence counsel. Mr Cloros expressed the opinion that the boot depicted on the CCTV footage was unlikely to be a Rossi but that it could not be positively excluded.

178 This detailed evidence was sensibly truncated before the jury. Having utilised the witness's expertise in order to identify other brands of boot also consistent with what was depicted in the CCTV footage, defence counsel was then able to deal with the issue in a more concise and direct manner before the jury.

179 In the course of the voir dire, Mr Cloros was also asked about a different issue, relied upon by Mr Meade as being exculpatory, concerning how worn the boots shown in the CCTV footage were.

180 As was readily conceded on the appeal, Mr Cloros has knowledge about Australian work boots. He has knowledge of the characteristics of Redback boots and of other work boots available in the Australian market. He has this knowledge because of his extensive experience in the field.

181 On the appeal, it was accepted by Mr Meade that expert evidence by Mr Cloros identifying the characteristics of the relevant boots would have been properly admitted. The error which it was submitted that the judge made was in permitting Mr Cloros to relate those characteristics to the CCTV footage and then to express the opinion that what was shown on the CCTV footage was 'consistent' with Redback boots.**

**182 Before the trial judge, the objection to Mr Cloros's evidence was founded primarily upon the High Court decision in Smith.[60] That case concerned evidence given by two police officers who had had previous dealings with the accused. The accused was charged with being one of four offenders who had robbed a bank. The two police officers gave evidence that they could recognise the accused as one of the four bank robbers depicted on images from the bank's security cameras. It was not suggested that the accused's appearance had changed between the time of the robbery and the time of the trial or that for some other reason the two police officers were at some advantage in recognising the accused because of their previous observations of him.[61] Indeed, it was acknowledged that after the considerable time which the jury had spent observing the accused during the trial, the two police witnesses were in no better position to make a comparison of the accused with the person depicted in the images than the jurors were themselves.[62]

183 The evidence was admitted and an appeal was rejected by the New South Wales Court of Criminal Appeal. The High Court allowed an appeal from that decision. The High Court held that the evidence was inadmissible because it was irrelevant.[63] The evidence was founded on material no different from the material available to the jury from its own observation.[64] The High Court held that the jury could not be relevantly assisted by the opinion of some other person on an issue which was for them to decide.[65]

184 The decision in Smith turned upon the issue of relevance, and accordingly s 55 of the Evidence Act 2008 was the applicable provision. It did not turn upon the expert evidence exception in s 79 to the opinion rule in s 76.

185 In our view, the trial judge was correct to reject the submission that the analysis in Smith was applicable to the evidence given by Mr Cloros. The issue to which his evidence was relevant was whether the boots shown in the CCTV footage could have been the boots which left the footprints at the scene of the crime. Mr Cloros's evidence on that issue addressed two matters. First, he gave evidence that in his opinion the footprints at the scene of the crime were made by work boots manufactured by the company he worked for, Redback Boot Company Pty Ltd, from its Classics range, of which the Bobcat was the most popular. There was no objection taken to this evidence.

186 Secondly, he gave evidence that the boots depicted in the CCTV footage could be Redback Bobcat boots, although they could also be certain other work boots manufactured by other companies. He gave this evidence by specifying characteristics of the various boots and identifying their presence or absence in what was depicted. It was accepted that Mr Cloros could properly give evidence identifying the relevant characteristics; the objection was to Mr Cloros relating those characteristics to the CCTV footage and to expressing the opinion that what was shown in the CCTV footage was 'consistent' with Redback boots.

187 The position in Smith was quite different. The two police officers in Smith had nothing relevant to contribute to the evidence. They could add nothing probative to the material which was before the jury, other than their own opinions based upon material which was relevantly no different from that which the jury also had. On any view, Mr Cloros could add significant relevant material to that which was before the jury.**

**188 In our respectful view, the judge was correct to conclude that Mr Cloros had 'specialised knowledge', within the meaning of s 79(1). His detailed knowledge of the characteristics of Australian work boots, and of the similarities and differences between particular brands of boot, obviously had a specialist character and - equally obviously - was 'based on [his] training ... or experience' in the area of boot manufacture and marketing. As his Honour said, it was immaterial for this purpose that Mr Cloros had not undergone 'formal training in shoe, or work boot, identification'.[66]

189 As to the objection based on reliability, this Court has recently held in Tuite v The Queen[67] that admissibility under s 79(1) does not depend on proof of reliability. That question is to be addressed under s 137.[68] In any case, no issue of reliability arises here. The course of events on the voir dire shows that defence counsel accepted Mr Cloros's opinions regarding similarities and differences as wholly reliable.

190 The real issue in relation to Mr Cloros's evidence is whether his evidence strayed into areas where he was expressing opinions which were not 'wholly or substantially based on' his 'specialised knowledge' of the characteristics of Australian work boots which he did undoubtedly have. In that context, on the appeal, Mr Meade focused upon the more recent decision of the High Court in Honeysett.[69] Honeysett is the most recent of a series of cases concerning expert evidence given by two anatomists, Dr Meiya Sutisno and Dr Maciej Henneberg.

191 The appropriate starting point is the decision of the New South Wales Court of Criminal Appeal in R v Tang.[70] In Tang the accused was charged with armed robbery. Three offenders had robbed a convenience store. The robbery had been videotaped by a surveillance camera. Dr Sutisno is an anatomist with a particular speciality in the field of facial identification. She was given photographs of the accused which she compared with the images of one of the offenders on the videotape using various processes, including photographic magnification, enhancement and other adjustments.

192 A substantial portion of Dr Sutisno's evidence in Tang consisted of identifying comparable features between the offender and the accused.[71] This aspect of her evidence was not challenged. However, she also gave evidence which positively identified the accused as the offender depicted in the video.[72] This was the evidence which was challenged and was the focus of the appeal. She expressed her conclusion as being that the characteristics she identified 'lend support' to the conclusion of identity.[73] When asked her opinion of the images which she had compared, she said that her opinion was that 'they are of the same person'.[74]

193 Her opinion had two distinct dimensions. The first concerned identification of facial characteristics, referred to as 'facial mapping'. The second concerned identification of physical characteristics of other parts of the body and of posture, referred to as 'body mapping'.[75]

194 As to relevance, the New South Wales Court of Appeal in Tang concluded, as the trial judge had, that this was not a case relevantly similar to Smith.[76] Spigelman CJ, with whom Simpson and Adams JJ agreed, said:**

In the present case, as his Honour held in his judgment on the voir dire, features displayed on the videotape or on the stills taken from the videotape were not such as the jury could themselves make a comparison. The process of computer enhancement and magnification of the images and the detailed comparison with undisputed photographic images of the appellant, was evidence of similarity that was, in my opinion, relevant and admissible.[77]

**195 Spigelman CJ identified three opinions which Dr Sutisno had given in relation to identification which were the subject of objection. The opinions were that

• the two bodies of photographs depicted the same person;

• 'the similarities' identified did 'lend support' to the conclusion that the offender and the accused were one and the same person; and

• certain features were in that context 'unique identifiers'.[78]**

Spigelman CJ observed that the second and third of these opinions had no scientific basis.[79]

**196 Spigelman CJ turned to the two limbs of s 79. Under the first limb, it is necessary to identify 'specialised knowledge' derived from 'training, study or experience'. Under the second limb, the opinion must be 'wholly or substantially based on that knowledge'. He found that, whilst Dr Sutisno did have specialised knowledge in relation to facial identification, there was no evidence that that specialisation extended to 'body mapping'.[80] His Honour concluded that the evidence she had given about posture was not based upon her study of anatomy.[81]

197 Spigelman CJ emphasised, by reference to United States authority, that the step from evidence of similarity to a conclusion of identity was a very significant one and that the evidence in the trial had not shown that 'facial mapping', let alone 'body mapping', constituted 'specialised knowledge' of a character which could support an opinion of identity.[82] Spigelman CJ emphasised the importance of exposure of the reasoning process and observed that the opinions in question in Tang did not go beyond an 'ipse dixit', especially given that the witness had relied upon 'protocols' which she insisted upon keeping secret.[83]

198 The Court of Criminal Appeal ruled that the evidence had been wrongly admitted and that there should be a new trial.[84] In reviewing the evidence which would be available on that retrial, Spigelman CJ observed:**

The evidence of Dr Sutisno of similarity, at least with respect to the facial features, is capable of adding strength to the Crown's circumstantial case. Even if she is not able to express the conclusory opinions of the character she did express, she can give evidence which supports of [sic] the Crown case.[85]

**199 The Northern Territory Court of Criminal Appeal in Murdoch v The Queen[86] considered relevantly similar evidence of Dr Sutisno and reached similar conclusions. Her evidence of similarities between respective images was admissible but her positive identification of the accused was not.[87] In that trial, Dr Henneberg was called for the defence and was critical of the evidence of Dr Sutisno.

200 The tables were then turned in Morgan v The Queen.[88] Again, the charge was one of robbery and the question was whether the accused was one of the persons depicted on CCTV footage. Dr Henneberg gave evidence for the Crown. Dr Sutisno was one of three experts who gave evidence for the defence. Dr Henneberg gave evidence that there was 'a high level of anatomical similarity' between the offender depicted in the CCTV footage and the accused.[89] He did not purport to positively identify the accused as the offender.

201 It was accepted that Dr Henneberg was an expert biological anthropologist and anatomist but evidence was given by the other experts that there was a lack of research into the validity and reliability of Dr Henneberg's methods, being the comparison of anatomical features in two sets of images in the absence of a capacity to make detailed measurements.[90] Dr Henneberg had not been assisted in Morgan by technology such as computerised enhancement, as had been used by Dr Sutisno in Tang.[91] A particularly controversial aspect of Dr Henneberg's evidence was his purported ability to identify relevant physical characteristics under clothing.[92]

202 The New South Wales Court of Criminal Appeal (Hidden J, with whom Beazley JA and Harrison J relevantly agreed) found that the method of comparison employed, whereby anatomical features were purportedly compared in a situation where those features were covered by clothing, was 'never satisfactorily explained'.[93] Likewise, Dr Henneberg's expertise was found not to extend to the observation of anatomical features of a head and face entirely covered by a balaclava.[94]

203 The purported observation of these features was not based upon specialised knowledge of anatomy.[95] Moreover, the comparison was a task the jury could have undertaken themselves.[96] The Court concluded that Dr Henneberg's purportedly expert evidence merely cloaked evidence of similarity 'in a mantle of expertise'.[97] The evidence had been wrongly admitted and a new trial was ordered.

204 Honeysett[98] also concerned evidence by Dr Henneberg and again the matter in issue was the identity of an armed robber depicted on CCTV footage. In that case, Dr Henneberg had compared images on CCTV footage with images of the accused taken whilst he was in custody. As in Morgan, Dr Henneberg had concluded in his expert statement that there was a 'high degree of anatomical similarity' between the offender and the accused, and that he was unable to discern any anatomical dissimilarity between the two individuals.[99]

205 The High Court concluded that Dr Henneberg's opinion was not based upon anthropometric measurement or statistical analysis.[100] His examination of the images did not differ from that of a lay observer save that he was an experienced anatomist with a good understanding of the shape and proportions of the human body.[101]

206 In the trial, however, the prosecutor did not lead Dr Henneberg's opinion of a 'high degree of anatomical similarity', but instead confined his evidence to the respective physical characteristics of the offender and the accused and the absence of observable anatomical dissimilarity.[102] The trial judge concluded that Dr Henneberg had specialised knowledge based on his experience of examining CCTV images, but on the appeal to the High Court the Crown did not seek to support that contention. The only specialised knowledge relied upon was his knowledge of anatomy.[103]

207 Notwithstanding the more limited way in which Dr Henneberg's evidence had been led, the High Court still characterised it as evidence admitted 'as an item of circumstantial evidence to support a conclusion of identity'.[104] Relevantly, the Court's conclusions were as follows:**

Professor Henneberg's opinion was not based on his undoubted knowledge of anatomy. Professor Henneberg's knowledge as an anatomist, that the human population includes individuals who have oval shaped heads and individuals who have round shaped heads (when viewed from above), did not form the basis of his conclusion that Offender One and the appellant each have oval shaped heads. That conclusion was based on Professor Henneberg's subjective impression of what he saw when he looked at the images. This observation applies to the evidence of each of the characteristics of which Professor Henneberg gave evidence.

...

Professor Henneberg's evidence gave the unwarranted appearance of science to the prosecution case that the appellant and Offender One share a number of physical characteristics. Among other things, the use of technical terms to describe those characteristics - Offender One and the appellant are both ectomorphic - was apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny.

Professor Henneberg's opinion was not based wholly or substantially on his specialised knowledge within s 79(1).[105]

**208 Guided by those authorities, we have reached the following conclusions. First, accepting that Mr Cloros has specialised knowledge which enabled him to identify characteristics of the relevant range of work boots, he did not trespass beyond that field of knowledge, nor did he base his evidence on matters extraneous to that field, when he related the presence or absence of those characteristics to the CCTV footage. It seems to us that that was what Dr Sutisno had done without objection or subsequent challenge in Tang. We do not read Honeysett as concluding that that is not permissible.

209 We do not accept that Mr Cloros should have been confined to listing and describing the relevant features of all the possible boots, with the jury then being left to assess for themselves - without the assistance of Mr Cloros's opinion - whether those characteristics were or were not shown on the CCTV footage. The interchange between counsel for Mr Meade and Mr Cloros on the voir dire revealed, in our view, the considerable assistance which Mr Cloros's expert opinions provided in avoiding errors in that process.

210 Secondly, Mr Cloros did not give evidence of matters outside his field of expertise, in the way Dr Sutisno was found to have done in Tang in relation to 'body mapping', and in the way Dr Henneberg was found to have done in Morgan in relation to features covered by clothing. His opinions were 'based on' his specialised knowledge.

211 Thirdly, Mr Cloros did expose his process of reasoning, unlike Dr Sutisno in Tang. He did not seek to clothe ordinary observations in a 'mantle of expertise', as Dr Henneberg did in Morgan and Honeysett. His process of inclusion and exclusion of different brands of boot was clearly explored and explained on the voir dire.

212 Fourthly, there is, in our view, a significant distinction to be drawn between:**

**_(a) observations of human characteristics, which are not standardised and which have not been measured and statistically analysed, as was under consideration in Honeysett; and

(b) the identification of characteristics of manufactured objects, which are the product of human endeavour and whose features can be reliably identified by the manufacturer._**

**213 Mr Meade accepts that Mr Cloros could give expert evidence of the relevant features of the applicable range of boots. Our conclusion is that he could also relate the presence or absence of those features to the CCTV footage. That is, he was able on the basis of his specialised knowledge to express the opinion that what was depicted on the CCTV footage was 'consistent' with Redback boots, as well as with some other specified brands. In our view, this 'consistency' opinion amounted to no more than a statement that there were features which suggested they could be Redbacks (or the other specified brands) and that there was an absence of features which would require exclusion.

214 This opinion was similar, in form, to that given by Dr Henneberg in Honeysett which was held to be inadmissible. But the two opinions are not relevantly analogous, in our view. The real problem with Dr Henneberg's opinion in Honeysett was not its form but its content. The High Court took the view that he had made observations about human appearance which were not in any relevant sense based upon his specialised knowledge and had then given those ordinary observations an unwarranted appearance of science.

215 That is not what Mr Cloros did. He had specialised knowledge of the features of work boots. The jury did not have that knowledge. As was revealed on the voir dire, a person lacking that knowledge could not reliably identify which boots did, or did not, have the relevant characteristics. In identifying the relevant characteristics, there was no cloaking by Mr Cloros of ordinary observations in a 'mantle of science'. There was, in our view, the expression of relevant opinions, ruling in or out particular boots, based upon the witness's specialised knowledge of the relevant characteristics of the full range of boots.

216 It is true that Mr Cloros's evidence, like Dr Henneberg's, did rely on what he could see, and that Mr Cloros did not have specialised knowledge of viewing or analysing CCTV footage.[106] What it was that could be seen was a matter of some controversy which was fully canvassed before the jury.[107]

217 In our view, the relevant issue for the purposes of the analysis under s 79 of the Evidence Act 2008 was not what could be seen, but rather the significance of what could be seen. Mr Cloros's opinion evidence was relevant and admissible not because of what he could see but because of what he said as to the significance of what he could see. The jury were quite capable of deciding for themselves what could be seen, as counsel for the defence invited them to do in final address. Mr Cloros's evidence was relevant to the significance of what could or could not be seen.

218 Mr Cloros had specialised knowledge and, in our view, his opinions were substantially based upon it. The trial judge was correct to hold that his evidence fell within the exception to the opinion rule provided for by s 79 of the Evidence Act 2008.

219 For completeness, we should point out that expert evidence of this kind was held to be admissible for this purpose at common law. In Kotzmann (No 2),[108] this Court upheld the admissibility of expert evidence from clothing industry witnesses about the brand of clothing which bank security photographs showed the bank robber to have been wearing.[109]

220 As to s 137 of the Evidence Act 2008, his Honour was correct to refuse to exclude the evidence under s 137, for the reasons which he gave. Two of the matters pressed on the appeal in relation to s 137 (quality of the CCTV footage and absence of positive identification by Mr Cloros) were issues the jury were well able to properly assess. They were fully canvassed before them.

221 The third matter in relation to s 137 (Mr Cloros viewed the CCTV footage knowing what the footprints had revealed) was a reference to the phenomenon of 'displacement'. In Honeysett and in Morgan reference was made to steps which had been taken by Dr Henneberg to avoid this effect.[110] Whilst Mr Cloros was questioned on the voir dire about how he came to be engaged by the prosecution and he agreed that he had been told footprints at the scene 'had some indications of being Redback boots', nothing was put to him about any displacement effect and no submissions were made to the trial judge about this. This Court has no material as to the potential significance of this effect (if it exists) and Mr Cloros had no opportunity to address it. It cannot be raised for the first time on appeal.

222 We would grant leave to appeal on this ground but the appeal against conviction should be dismissed.**

**223 The sentencing judge sentenced Mr Meade to 23 years' imprisonment and fixed a non-parole period of 19 years. He described Mr Meade's offence as 'brutal, callous, and cowardly'.[111] He said that it was 'impossible to overstate the gravity of what you did'.[112]

224 The judge was satisfied beyond reasonable doubt that the murder was a planned killing.[113] He found that Mr Meade had undertaken a 'dry run' in the vicinity of the victim's home in the month prior to the murder,[114] but he could not say that the 'actual decision to go ahead with that plan was made more than perhaps a few days before it occurred.'[115] He said that the 'fact of premeditation' rather than its 'actual duration' was 'a significant aggravating factor'.[116]

225 The sentencing judge found that Mr Meade intended to kill the victim when he attacked her.[117] He described as 'entirely fanciful' a submission that Mr Meade merely tried to cause her serious injury because, had the victim survived, she would have implicated Mr Meade and she would have almost certainly relocated to the United Kingdom with the children.[118] The sentencing judge concluded:**

There was only one explanation for your conduct on the day in question. That was that you intended to kill Sally, and thereby prevent the children from being taken from you.[119]

**226 The sentencing judge also considered the fact that the attack took place in the victim's own home to be an aggravating factor.[120] He noted that Mr Meade continued to maintain his innocence and that there was 'not a skerrick of remorse'.[121]

227 In mitigation, the sentencing judge took into account Mr Meade's lack of prior convictions, and the continued support from his new wife and step-daughter.[122] He concluded that Mr Meade was 'not beyond redemption'.[123] He found that Mr Meade was unlikely to ever again offend,[124] and he accepted the defence submission that the offending did not exhibit aggravating features present in some other cases of murder - such as torment leading up to the attack, concealment or defilement of the body, or any element of a breach of trust.[125] He concluded that the offending did not fall 'within an even worse category of offending'.[126]

228 Although the judge found that specific deterrence had 'little direct relevance', given the unlikelihood of Mr Meade re-offending,[127] his Honour said that general deterrence was of primary importance.[128] He emphasised the need for public denunciation and condemnation of the offending.[129]

229 The Director appeals against the sentence and non-parole period on the ground that they are manifestly inadequate in all the circumstances. The particulars in the Notice of Appeal assert that the sentencing judge:**

(a) failed to impose a sentence that properly reflects a grave example of the most serious offence known to law;

(b) failed to sufficiently punish the offender to an extent which is just in all of the circumstances;

(c) failed to sufficiently manifest the denunciation by the court of the type of conduct in which the offender engaged;

(d) failed to give sufficient weight to the principle of general deterrence;

(e) failed to have sufficient regard to the maximum penalty prescribed for the offence;

(f) failed to have sufficient regard to the impact of the offence upon the family of the deceased victim;

(g) failed to have sufficient regard to aggravating features of the offending, and in particular -

• the planning and premeditation involved in the offence;

• the steps taken by the Respondent to conceal his involvement;

• the absence of remorse demonstrated by the respondent.

(h) gave too much weight to mitigating factors concerning the offender, in particular -

• his absence of prior convictions;

• his unlikelihood of reoffending;

• his previous good character and work history;

• his family support.

**230 Counsel for the Director submitted that the offending was a 'very serious example of murder' and was 'approaching the worst category'. Counsel emphasised the gravity of the offending. It was premeditated, on a defenceless woman, in her own home. It was brutal, callous and cowardly. There was no contrition. The mitigatory circumstances were said to be 'meagre', and the guilty verdict came after a contested trial.

231 Counsel submitted that the sentence imposed was more consonant with a sentence imposed after a plea of guilty rather than after a 'hotly contested' trial. Reliance was placed on three recent sentences for murder in support of the proposition that the sentence was 'palpably below' murder sentences imposed in 2013 after a jury verdict.[130] Counsel for the Director submitted that the offending did involve a breach of trust, given that the victim was Mr Meade's former wife and the mother of his children.

232 Counsel for Mr Meade relied on the reasons of the sentencing judge. Counsel also relied on the Sentencing Advisory Council's Sentencing Snapshot for the five year period from 2007-2008 to 2011-2012 for murder, which showed that the median sentence was 19 years' imprisonment and that the median non-parole period was 16 years.[131] Counsel relied upon a number of murder sentences since 2001 to submit the sentence was within the range of sentences open.[132] Mr Meade's counsel submitted that even if the sentence was outside the range the Court should decline to intervene given the rehabilitative strides Mr Meade has made in gaol.

233 The relevant principles concerning Director appeals have been reiterated recently by this Court in DPP v Zhuang.[133] To succeed the Director must establish that there is an error in the sentence imposed, and that a different sentence should be imposed. A relevant error will be established where the sentence is wholly outside the range of sentencing options available to the sentencing judge.[134]

234 As this Court said in Karazisis:[135]**

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.141 As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.142 Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

The court will be astute to enforce the stringency of this test. As the High Court has emphasised:

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[136]

**235 A review of the sentencing statistics and the sentences relied upon by counsel, and other sentences for pre-meditated murder dealt with on appeal over the last 10 years, does not indicate that this sentence is clearly at variance with sentencing practice over that period. The cases relied upon by the Director each involved premeditated murder in which the offender knew the victim and where no remorse was shown. But the offending in those cases was comparatively more violent, involved disturbing or concealment of the body.

236 The cases relied on by Mr Meade involved pre-meditated offending, with comparative amounts of violence, for non-financial motives occurring in the domestic context. But three of the five were sentences imposed after a guilty plea and are of little assistance for that reason.

237 In addition to the cases relied upon by the Director and Mr Meade, a search of sentences for murder in matters before this Court, where there was pre-meditation, conviction after a plea of not guilty and a trial, and offending of arguably comparable seriousness, reveals three additional cases.[137] In each of those three cases, the sentence imposed was slightly below that imposed here.

238 This was murder of a very grave kind. It was perpetrated by gaining entry to his ex-wife's home, lying in wait for her, and callously and brutally bashing her with a blunt object intending to kill her. It was planned and premeditated. Mr Meade murdered his ex-wife to prevent her from legally taking their children back to the United Kingdom. There was no remorse.

239 Mr Meade was 52 years of age at the date of sentence. He is now 55. He has no prior convictions. The sentence imposed upon him is likely to occupy most, if not all, of the rest of his life.

240 While Mr Meade's crime was most grave, it was not among the very worst. It seems to us that the sentence imposed was low in the circumstances of this case but it was not at variance with current sentencing practice. Accordingly, it was not wholly outside the range of sentences open to the sentencing judge. The appeal against sentence should be dismissed.**

**241 Leave to appeal against conviction should be granted but the appeal dismissed.

242 The Director's appeal against sentence is dismissed.

[1] [2008] VSCA 75; (2008) 18 VR 644, 653-4 [38]-[40] (citations omitted) (emphasis in original).

[2] See [46]-[48] below.

[3] See [102]-[108] below.

[4] See, eg, R v Doherty [2003] VSCA 158; (2003) 6 VR 393, 407 [24]; Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581, 592 [51]-[52].

[5] That was the date on which Ms Brooks was subsequently attacked.

[6] But see Evidence Act 2008 s 78.

[7] See [147]-[222] below.

[9] See [102]-[108] below.

[10] On 20 August, Mr Meade had spoken to his friend and mentioned that at the time of the attack on Ms Brooks he had been 'in the Strathbogie Ranges prospecting for gold'.

[11] TomTom is a corporation which makes and sells 'global positioning system' (GPS) products.

[12] See [102]-[108] below.

[13] JDA s 24(1)(b).

[14] See [45] above.

[15] See [94]-[101] above.

[16] See [70] above.

[17] [1993] HCA 65; (1993) 178 CLR 217 ('Weissensteiner').

[18] [2000] HCA 3; (2000) 199 CLR 620 ('RPS').

[19] (2001) 205 CLR 50 ('Azzopardi').

[20] Butler v The Queen [2011] VSCA 417; (2011) 34 VR 165, 172-6 [24]-[37] (Maxwell P dissenting), 189-92 [141]-[154] (Ashley JA); MA v The Queen [2012] VSCA 214, [46]-[49]; Klink v The Queen [2014] VSCA 325, [58]-[65].

[21] See R v Doherty [2003] VSCA 158; (2003) 6 VR 393, 409-410 [27].

[22] Azzopardi (2001) 205 CLR 50, 64 [34].

[23] [2003] VSCA 184; (2003) 8 VR 548, 555.

[24] See R v Meade (Ruling No 1) [2013] VSC 250 ('Ruling 1').

[25] See R v Vollmer [1996] VicRp 9; [1996] 1 VR 95, 118.

[32] R v Szitovszky [2007] VSC 69, [93] (Whelan J).

[33] [1992] VicRp 85; (1992) 2 VR 531 ('Heaney').

[34] Ibid 547-8 (citations omitted) (emphasis added).

[35] (1993) 68 A Crim R 495.

[38] (2014) 291 FLR 63 ('Nabole').

[39] R v Alexander [1994] VicRp 58; [1994] 2 VR 249, 255.

[40] It would have been enough if either of them had such a state of mind.

[41] Although the section provided other bases for the issue of a warrant, Detective Wilson gave evidence at trial that this was the basis upon which the warrant in question was issued.

[43] See also R v Hazim (Unreported, Supreme Court of Victoria Court of Criminal Appeal, Brooking, Coldrey, Teague JJ, 6 December 1993).

[44] ([1994] HCA 19; 1994) 179 CLR 370.

[49] [2014] 291 FLR 63.

[51] R v Meade (Ruling No 4) [2013] VSC 257, [19] ('Ruling 4').

[52] [2001] HCA 50; (2001) 206 CLR 650 ('Smith').

[59] [2014] HCA 29; (2014) 253 CLR 122 ('Honeysett').

[60] [2001] HCA 50; (2001) 206 CLR 650.

[61] [2001] HCA 50; (2001) 206 CLR 650, 654-5 [9].

[67] [2015] VSCA 148, [70]-[82].

[69] [2014] HCA 29; (2014) 253 CLR 122.

[70] [2006] NSWCCA 167; (2006) 65 NSWLR 681 ('Tang').

[77] Ibid 704 [85]. The same conclusion was repeated, in substance at 709 [120].

[83] Ibid 714-5 [147]-[151], [153]-[154].

[86] [2007] NTCCA 1; (2007) 167 A Crim R 329.

[87] Ibid 356 [296], [298], [300].

[88] [2011] NSWCCA 257; (2011) 215 A Crim R 33 ('Morgan').

[89] Ibid 45 [76], 46 [79], 55 [118].

[98] [2014] HCA 29; (2014) 253 CLR 122.

[105] Ibid 138 [43] and [45]-[46] (citation omitted).

[106] It was not suggested Mr Cloros was an 'ad hoc' expert of the kind dealt with in Butera v DPP [1987] HCA 58; (1987) 164 CLR 180.

[107] There was no issue or uncertainty in the relevant sense as to the factual basis of the opinion: Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588. The factual basis was the CCTV footage which was before the jury. There was controversy as to what could or could not be seen. That issue, which was fully canvassed before the jury, went to the weight to be given to the opinion not its admissibility. It was not argued on the appeal that the opinion was inadmissible because of a failure to identify and prove the factual basis.

[108] [2002] VSCA 21; (2002) 128 A Crim R 479, 493-4 [28]-[31].

[109] See also R v Truong [2007] NTSC 20, [13]-[26].

[110] See Honeysett [2014] HCA 29; (2014) 253 CLR 122, 129 [14]; Morgan [2011] NSWCCA 257; (2011) 215 A Crim R 33, 44-5 [73]. The issue was not addressed in respect of Dr Sutisno's evidence in Tang [2006] NSWCCA 167; (2006) 65 NSWLR 681.

[111] R v Meade [2013] VSC 682, [74] ('Reasons').

[130] R v Xypolitos [2013] VSC 485 (27y/24y); R v Constantinou [2013] VSC 474 (24y/20y); R v Wu [2013] VSC 375 (27y/21y). Xypolitos and Wu both appealed their sentences and leave was refused in each case: Xypolitos v The Queen [2014] VSCA 339; Wu v The Queen [2014] VSCA 79.

[131] Sentencing Advisory Council, Sentencing Snapshot No 140: Murder (May 2013).

[132] Delich v The Queen [2014] VSCA 66 (20y/16y, guilty plea); R v Stoneham [2013] VSC 661 (19y/14.5y, guilty plea, s 6AAA declaration: 25y/20y); R v Baxter [2009] VSC 180 (20y/16y); R v Kellisar [2001] VSCA 224 (22y/18y); R v Acikoglu [2001] VSC 163 (18y/14y, guilty plea).

[133] [2015] VSCA 96, [39]-[50] ('Zhuang').

[134] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-3 [127]-[128] ('Karazisis').

[136] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665, 672 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

[137] Chalmers v The Queen (2011) 37 VR 464 (22y/18y); R v Boyle (2009) 26 VR 219 (21y/17y); R v Mangione [2006] VSCA 34 (22y/18y).