Plaintiff v Defendant

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

R v Heaney & Ors [1992] VicRp 85; [1992] 2 VR 531, applied.

Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VicRp 81; [1984] VR 1019, followed.

Walsh v Loughnan [1991] VicRp 75; [1991] 2 VR 351, followed.

1 Christopher Szitovszky is charged with the murder of his father, Peter Szitovszky. The murder is alleged to have occurred on 1 July 2004 at Wheelers Hill. Mr Szitovszky was arraigned on 6 June 2006 and pleaded not guilty. His trial commenced on 7 March 2007.

2 Christopher Szitovszky was born on 12 November 1982. At the time of his father's death he was 21 years old. He lived with his mother, Helen Szitovszky, and his father at 17 Xavier Drive, Wheelers Hill. According to the account of events he gave police, he discovered his father's body some time after 5.00 am on 1 July 2004. His father had suffered a number of severe wounds to his body, particularly his neck. According to the account of events given by Christopher Szitovszky, at the time he discovered the body an axe was laying across his father's chest.

3 Counsel for the Crown proposes to lead evidence of seven occasions upon which the accused has spoken to police. The seven occasions are the following:

(1) Conversations with Detective Senior Constable Adrian Woodcock, then attached to the Glen Waverley Crime Investigation Unit, and in his presence, in a police car commencing shortly after 6.22 am on 1 July 2004 (Depositions 417-421).

(2) A statement taken by Detective Woodcock and signed by the accused at 1.11 pm on 1 July 2004 (Depositions 546-552).

(3) A conversation with Detective Woodcock which occurred in the Glen Waverley Police Station shortly after the accused's statement had been signed. (Depositions 429).

(4) A conversation between the accused and the informant, Detective Senior Constable Ronke, a member of the Homicide Squad, and Detective Senior Constable Smith, then a member of the Homicide Squad, at approximately 1.20 pm on 1 July 2004 (Depositions 541-2).

(5) A second statement, taken on this occasion by Detective Ronke, which was signed by the accused at 1.15 pm on 12 July 2004 (Depositions 554-557).

(6) A conversation which the accused had with Detective Ronke and Detective Smith on 19 August 2004 at 1.20 pm (Depositions 544).

(7) A video tape recorded record of interview between Detective Senior Sergeant Ron Iddles and the accused conducted at the Homicide Squad offices on 27 October 2005 (Depositions 906-957).

4 In relation to these various statements and conversations, the defence position was as follows:

(1) There was no objection to the evidence proposed to be given concerning the conversations with and in the presence of Detective Woodcock in the police vehicle on 1 July 2004.

(2) Objection was taken to the admissibility of the statement signed by the accused on 1 July 2004 on two grounds. First, it was submitted that the statement was compiled as a result of questioning at a place (the Glen Waverley Police Station) where facilities were available to conduct an interview, that the questioning and what the accused said had not been recorded, and that as the accused was then suspected or reasonably ought to have been suspected of having committed an offence, the statement is inadmissible pursuant to s 464H(1)(d) of the Crimes Act 1958 ("the Act"). Secondly, it was submitted that the accused was in custody at the time the statement was taken, that he was not informed of the matters of which he was required to be informed by s 464A(3) and s 464C(1) of the Act, and that accordingly the statement should be excluded because its admission would be unfair to the accused and because exclusion is required by considerations of public policy.

(3) Objection was taken to the admission of evidence of the conversation with Detective Woodcock after the taking of the first statement on the same grounds as are relied upon in relation to the first statement. An additional and alternative ground relied upon in relation to this conversation is that three of the things said, where the accused described his own character and disposition, are irrelevant, or should not be admitted on the ground that the evidence is propensity evidence and the requirements of s 398A of the Act are not met.

(4) Objection was taken to the admission of evidence of the conversation with Detectives Ronke and Smith at 1.20 pm on 1 July 2004 on the same grounds as those relied upon in relation to the first statement. There was at one point also a separate objection to certain passages of this conversation, but, on the basis that the evidence would be confined to that set out in the depositions at page 541-542, that additional ground was not persisted in.

(5) Objection was taken to the admission of the second statement, taken by Detective Ronke on 12 July 2004, on the same grounds as those relied upon in relation to the first statement (although the circumstances relied upon differ). The submission as to unfairness had an added component in this context. It was submitted that the section of the statement dealing with the accused's movements on the night of 29-30 June was unreliable. This was not a separate ground of objection but was relied upon as an additional factor upon the assumption the submission that the accused was in custody at the time was accepted.

(6) No objection was taken to the evidence concerning the conversation on 19 August 2004.

(7) No objection was taken to the record of interview, save for consequential amendments rendered necessary by my rulings on the other objections. I note in this connection that counsel had agreed upon a number of deletions from the record of interview, and that I separately ruled upon an issue arising out of the accused's reference to one aspect of his activities on the night of 30 June/1 July 2004 which is referred to in his first statement and is taken up in the record of interview at questions 67 and 68 and 97 to 101. I rejected the submission that that matter was irrelevant, or was only marginally relevant and prejudicial, and ruled that those references should remain.

5 As indicated, the trial commenced on Wednesday 7 March 2007 at which time I commenced to hear on a voir dire a number of witnesses concerning the issues of whether the accused was relevantly suspected of having committed an offence within the meaning of s 464H(1) at the various relevant times, and concerning the issue of whether the accused was in custody at any and which of the relevant times. Evidence was led on behalf of the prosecution from Detective Woodcock, Detective Smith, Detective Ronke, and a Detective De Chirico. Evidence was led on behalf of the accused from the accused himself, from his mother, Helen Szitovszky, and from two other persons, Mrs Marie Myers and Mr Robert Myers. Extensive reference was made to the material in the depositions. Some additional documents were tendered.

6 These reasons concern the objections made based upon s 464H and based upon the proposition the accused was in custody. I have deferred ruling on the separate objection concerning the three things said in the conversation with Detective Woodcock after he had taken the first statement.

Sequence of events

7 At 6.02 am on Thursday 1 July 2004 the accused called 000. He told the call taker that he had just found the deceased, his father, dead outside the house. He was given first aid instructions. The accused subsequently told police that in the course of carrying out those instructions he dragged the deceased a short distance so that his head was clear of a small hedge and he put his hand on the deceased as a result of which his hand was stained with blood.

8 At 6.22 am Detective Woodcock arrived at the scene and was introduced to the accused by uniformed members of police. He saw that the accused had blood on his left hand. The accused and Detective Woodcock went into the back seat of a police car and had a conversation. The substance of that conversation was that the accused had found his father suffering severe neck wounds and with an axe lying across his chest earlier that morning. The accused also spoke to another detective in Detective Woodcock's presence.[1]

9 At 7.40 am Detective Smith, then attached to the Homicide Squad, and other detectives arrived at 17 Xavier Drive.[2] Detective Woodcock drove the accused to Glen Waverley Criminal Investigation Office at 7.55 am arriving at 8.02 am.[3] Detective Woodcock's evidence was that the accused was not under arrest.[4]

10 At 8.05 am Detective Ronke, a member of the Homicide Squad and subsequently the informant, arrived at 17 Xavier Drive and was present while a briefing was given by Detective Sergeant Zussa.[5]

11 At 8.10 am Detective De Chirico took photographs of the accused and Detective Woodcock took a swab of the blood on his left hand.[6] The photos taken, with one exception, are of his hands. There is one photo which shows a front view of the accused with his hands by his side.

12 At 9.00 am Detective Senior Constable Schulz took a statement from a 16 year old resident in a house across the road from 17 Xavier Drive, one Michael Pitts. According to that statement he had been awoken during the night by the sound of swearing. He had looked out his window. He gave police a description of "a male ethnic person" in his late teens or early 20s walking away from the house at 17 Xavier Drive.[7]

13 Detectives Ronke and Smith left 17 Xavier Drive at 10.15 am[8] and arrived at Glen Waverley Police Station at approximately 10.25 am. At this time Detective Woodcock was in the course of taking a statement from the accused. At the same time the accused's mother, Helen Szitovszky, who had also been brought to the Glen Waverley Police Station, was having a statement taken from her by Detective De Boer.[9]

14 There was a discussion between Detective Ronke and Detective Woodcock shortly after Detective Ronke's arrival at the police station. According to Detective Woodcock's evidence he was not told at that time of any further inquiries which had been made.[10]

15 In the meantime Detective Schulz and another police officer had taken statements from two other neighbours, Christine and Shane Taylor.[11] They gave a similar account to that given by Michael Pitts of having been woken by yelling and swearing and having seen a male in his early 20s walking away from the house. Shane Taylor was able to give a description of the male's clothing which was a white hooded windcheater, long pants and a beanie with horizontal brown stripes.

16 Helen Szitovszky completed and signed her statement at 11.19 am.[12] In her statement she gave a brief family history. In relation to the circumstances of her husband's death she said that she had fallen asleep at about 1.15 am the night before and that the next thing she could recall was her son waking her up telling her that something had happened to Dad.

17 At 11.15 am Detectives Smith and Ronke spoke to Helen Szitovszky.[13] They asked her about the business history of herself and her husband and about debts they had. They also asked about family relationships including whether there had been any extra marital affairs.

18 At some point Detective Woodcock completed Christopher Szitovszky's statement to his satisfaction and showed it to Detective Ronke. Detective Ronke made some suggestions including spelling corrections and also suggested the inclusion of some conversation Detective Woodcock told him he had had with the accused with respect to his father's financial difficulties.[14]

19 At 1.11 pm Christopher Szitovszky signed the statement which Detective Woodcock had prepared.[15] The account of events which he gave in that statement was of hearing shouting during the night, and of later discovering his father's body. He also said that he had greeted his father in his taxi when he had returned home from work at about 9.30 pm the night before and that he had gone to bed that night at about 10.00 pm.

20 According to the evidence of Detective Woodcock, after he had completed the statement he had a discussion with Christopher Szitovszky about Christopher himself and about his relationship with his father. He made notes of this discussion after it had concluded and before he ceased work that day. The notes of this discussion are at page 429 of the depositions. In his evidence Detective Woodcock portrayed uncertainty as to where in his notes the discussion which was incorporated into the statement ended and the discussion which was not began. He conceded that the notes were not a verbatim record of what had been said and agreed that there may be errors. At some points he had difficulty reading his own notes.[16] The accused in his evidence did not accept the accuracy of everything in the notes but accepted the accuracy of a number of the statements noted.[17]

21 As previously indicated objection was taken to admission of the statement prepared by Detective Woodcock and signed by Christopher Szitovszky on 1 July 2004 on the ground that he was at that time a person to whom s 464H(1) applied and the questioning and his responses were not recorded. A further ground of objection to the admission of this statement was founded upon the proposition that Christopher Szitovszky was then in custody. The same objections were made to the entire discussion with Detective Woodcock after the statement had been prepared, and the further submission was made that portions of that discussion should be excluded if the two primary objections are rejected.

22 In his evidence Detective Woodcock rejected the suggestion that at the time he took the statement from Christopher Szitovszky he considered him to be a suspect, describing that suggestion at one point as being ridiculous.[18] Detective Ronke also rejected the suggestion that at that time he considered the accused to be a suspect.[19]

23 At 1.20 pm on 1 July Detectives Ronke and Smith talked to Christopher Szitovszky and he broadly repeated the account which he had given to Detective Woodcock to them.[20] Objection was taken to the admission of this evidence on the same two grounds of those made in relation to admission of the statement taken by Detective Woodcock.

24 At 2.30 pm a voluntary buccal swab was taken from Christopher Szitovszky at the request of Detective Ronke and in the presence of Detective De Chirico.[21] In his evidence Detective Ronke explained this request saying that he was aware that Christopher had arrived at the police station with blood on his hands and that that blood had been swabbed. He said that he wanted to have a reference sample to compare the blood against "if it came to be someone other than the deceased's blood".[22]

25 At the same time (2.30 pm) Detective Smith was speaking to the accused's older brother, Simon Szitovszky, on a mobile phone number. He had been told that Simon Szitovszky was then in Hungary. There was no particular focus in that discussion on Christopher Szitovszky.[23]

26 At 4.45 pm Detective Ronke had a further discussion with Helen Szitovszky in relation to debts and in particular a debt of approximately $20,000 owed to Michael and Edith Rezes.[24]

27 At some time prior to 6.20 pm Detective Smith was told that the crime scene was clear and that Christopher Szitovszky and his mother could return to the house.[25] At 6.20 pm Detective Smith left the police station with Christopher Szitovszky and his mother[26]. At 6.30 pm they arrived at 17 Xavier Drive. Detective Ronke seized a computer box including the hard drive from the study.[27] Detective Smith said in his evidence that the seizure of computers was part of any normal homicide investigation.[28] The accused's evidence was that the police had been told that the deceased did not use the computer before it was taken.[29] In Christopher Szitovszky's discussions with the detectives he had referred to his own use of the computer and the internet.

28 At 8.40 pm on 1 July Detectives Smith and Ronke visited the parents of a person whom Christopher Szitovszky had described as a friend, Glen Myers. The parents, Marie Myers and Robert Myers, gave evidence before me on the voir dire.

29 Marie Myers' evidence was that her son was not at home when Detective Smith and Detective Ronke arrived but they nevertheless asked her a series of questions as a result of which she was prompted to ask: "Are you saying Chris is a suspect?" Her evidence was that Detective Ronke's response was: "In cases like these we look at the family first".[30] Robert Myers gave similar evidence saying that a series of questions were asked about Christopher Szitovszky including whether he was prone to violence. His evidence about the inquiry made of Detective Ronke and his response was essentially the same as his wife's.[31] Detective Smith was asked about this visit and he said he did not recall the discussion and had not made any notes of it.[32] He later observed that in his experience in homicide investigations "more often than not" a family member is involved and that accordingly family members are always persons of interest in the early stages.[33] Detective Ronke also did not remember the discussion with the Myers that evening but he accepted that Marie Myers may have asked him whether Christopher was a suspect. He said that the response she said he gave could have been part of his response, but he suggested that his response would have been "softer" and that he would have referred to other associates as well as family members.[34]

30 Just before 9.00 am on Friday 2 July 2004 Detective Smith delivered the computer he had seized to the Computer Crime Squad.[35] He completed a request for analysis lodgement sheet which is Exhibit A in the voir dire. He also delivered to the Computer Crime Squad the deceased's mobile phone.

31 In the request for analysis lodgement sheet Detective Smith identified Detective Ronke as the informant and himself as the courier. He said the relevant offence was murder. In relation to a section headed "suspect", and providing for a name, address and date of birth he wrote "U/K" which I assume means unknown. In response to a question on the form: Is there any reason this job should be a high priority? Detective Smith wrote:

"Yes, the son is considered as a possible suspect for the murder of his father. Any info located on the computer corroborating his dislike for his father or any internal 'thoughts' re the death of his father, could lead to an early arrest."

32 In response to the next question on the form which concerned evidence Detective Smith wrote, amongst other things: "Computer evidence may lead to an early arrest and allow investigators to focus on that suspect".

33 In the section of the form headed "Summary of Circumstances" Detective Smith wrote:

"Victim was found deceased in his front yard by his son (Chris Szitovszky) at 5.50 am 1.7.04. Son earlier heard argument in vicinity approx 3.30 am 1/7. Deceased attacked with an axe.

Decs' son (Chris) expressed a dislike of his father to police. Stated he often went to a website and posted this thoughts. Investigators are interested in these thoughts and any emails to friends etc."

34 When asked to explain what he had written in the form Detective Smith said the following:

" ... possible suspect could be anyone, I mean, I didn't have any evidence that he was in fact a suspect, but if there was anything on that computer that might give us material evidence that might firm up the fact that he was suspect well then, I suppose that's why I've put that he is a possible suspect. ..."[36]

"It means he wasn't a suspect yet but he could become a suspect."[37]

35 Detective Ronke's evidence was that he had had no involvement with this form and had seen it for the first time at the committal.[38]

36 Detective Smith described Christopher Szitovszky as at 2 July 2004 as a "person of interest". Detective Smith had the following interchange with junior counsel for the accused:

"Just listen to my question carefully. Had you begun to apprehend that he might possibly be involved in the killing of his father? --- I was keeping an open mind but there was that possibility, yes."[39]

37 At the time of his death the deceased was a taxi driver. The taxi which he drove was parked outside his house at the time of his death. On 1 July 2004 Detective Schulz had spoken to a manager at Black Cabs who had confirmed that the deceased worked "for Black Cabs via Vermont Auto Gas Pty Ltd".[40] At 11.15 am on 2 July 2004 Detectives Schulz and Smith attended at Black Cabs and spoke to a manager and an operator there. Amongst other things, they obtained details in relation to the deceased's work and also information which suggested that another driver referred to as "Tong?" might have a reason to believe that the deceased had taken some of his work.[41]

38 At 5.50 pm on 2 July 2004 Detective Ronke spoke to a regular taxi customer of the deceased. The customer referred to the deceased having money problems and not having a happy home life.[42]

39 On Saturday 3 July 2004 at 11.45 am Detectives Smith and Ronke followed up information received in the course of a door knock conducted on 1 July about another resident of Xavier Drive.[43]

40 At 2.15 pm that day Detective Ronke spoke to Shane Taylor and Christine Taylor. In this conversation Shane Taylor said the person he had seen had a similar build to the boy who lived at 17 Xavier Drive. Shane Taylor said he had not heard any cars that night. Detective Ronke requested Shane Taylor to attend clothing stores and attempt to identify the clothing "worn by suspect", meaning the person that he had seen that night.[44] According to Detective Ronke's day book Shane Taylor also told him in that visit that he had seen Chris Szitovszky on Thursday at around 6.00 pm washing a brown plastic bin wearing yellow gloves.[45] In his evidence Detective Ronke agreed that Shane Taylor's reference to Thursday at 6.00 pm had to be incorrect as at that time Chris Szitovszky was still at Glen Waverley Police Station.[46]

41 On Monday 5 July 2004 at 7.10 pm Detectives Ronke and Schulz went to 17 Xavier Drive and spoke to Helen Szitovszky. In the course of that conversation they were told that the porch light was usually on at night. It was not on when the police arrived and Mrs Szitovszky said she had checked the switch and that the light was not working. She also said she had checked the back door before going to bed on the night of the death and had found it locked, but that it was unlocked when the police arrived the next morning.[47] Mrs Szitovszky was again asked about her financial situation, including details of earnings and debts. Detectives Ronke and Schulz took away with them a number of photographs recently taken during a trip to Hungary by Helen, Simon and Christopher Szitovszky.[48]

42 At 8.20 pm that same night Detective Ronke visited Michael Rezes. He asked him about the debt that was owed by Mr and Mrs Szitovszky and was told that the total outstanding was $19,800 and that it had been the subject of an order at the Dandenong Magistrates' Court. He was told that instalment payments were being made. Michael Rezes had been a friend of the Szitovszkys and he gave Detective Ronke some very personal details of the relationship between the deceased and Mrs Szitovszky, suggesting estrangement. He told him of a fist fight which Simon Szitovszky had had with his father when he was 17 or 18.[49]

43 On Tuesday 6 July 2004 at 10.20 am Detective Ronke spoke to Simon Szitovszky's ex-wife, Lisa.[50]

44 On Wednesday 7 July 2004 Detective Smith collected Simon Szitovszky (who had returned from Hungary) at 10.40 am and took him to the police station to take a statement from him. Simon's statement was completed and signed at 3.22 pm. Amongst other things, he described the family's history, indicating that the family had experienced considerable difficulties at times and revealing circumstances which might have led to resentment directed at the deceased from himself, his mother and his brother Christopher. He did observe that Christopher and his father did not get on that well, but he also said that during their recent trip to Hungary Chris had found out a few things about his father which had made him understand him better. In the statement he specifically addressed the possibility of either his mother or Christopher being involved in his father's death. He included details of his own financial situation and of his "messy break up" with his former wife. Detectives Smith and Schulz dropped Simon off at 17 Xavier Drive at 4.48 pm and collected more holiday photos.[51]

45 On Thursday 8 July 2004 at 10.30 am Detective Ronke made further inquiries concerning the report about another resident of Xavier Drive.[52] I earlier referred to an initial follow up of that matter, this was the second follow up. In his evidence Detective Ronke said that the report he had received through the door knock sheet was of a male at an address in Xavier Drive of a "broadly similar appearance" to the person seen by the neighbours and who had been "acting peculiar, strange, suspiciously".[53]

46 At 2.25 pm that day Detective Schulz made inquiries in relation to psychiatric patients in the Wheelers Hill area.[54] Those inquiries did not indicate any problems with psychiatric patients in that area at the time of the incident.

47 On Friday 9 July 2004 the deceased's funeral was held. It was attended by Detective Ronke.[55]

48 On Saturday 10 July and Sunday 11 July Detective Ronke was not on duty.[56]

49 On Monday 12 July 2004 Detective Ronke spoke to Helen Szitovszky at 8.30 am and was requested to return items from the deceased's wallet and a watch which had been in an item of her clothing which had been taken by the police.[57]

50 At 9.45 am Detective Ronke attended at 17 Xavier Drive and returned the personal items to Helen Szitovszky. He also returned the holiday photographs with the exception of certain photos which he retained. The photographs retained are photographs of Christopher Szitovszky. Some of the photos depict him in clothing which might be considered to be consistent with the description given by Shane Taylor and some show Christopher Szitovszky giving "the bird" (a gesture involving holding up one finger) which it was suggested was a gesture used by the person seen by the neighbouring witnesses that night.

51 That morning Detective Ronke had a discussion with Helen Szitovszky and Simon Szitovszky in relation to the whereabouts of the deceased's cash takings. Detective Ronke then records in his notes that he spoke to Christopher Szitovszky and requested that he make a second statement.[58]

52 The accused's evidence in chief was that he was surprised when he was asked to make the second statement and that Detective Ronke told him words to the effect of "you have to come with me".[59] In cross-examination the accused said the words used were: "We need you to come, come back to the police station".[60] He agreed that he was now aware that there had been prior contact in relation to the second statement with his mother.[61]

53 Detective Ronke began taking the second statement from Christopher Szitovszky at the Glen Waverley Police Station at 10.25 am that morning.[62] The statement was completed and signed at 1.15 pm.[63]

54 In relation to the reason why he requested a second statement Detective Ronke said in his evidence:

"I just wanted to clarify his movement at the crime scene on the morning, whether, specifically whether he had touched or handled the axe."[64]

55 He went on to say that he needed to know exactly the extent to which Christopher had disturbed the crime scene in case "we were to speak to somebody in the future who knew a bit more about the crime scene, being the offender, and needed to corroborate exactly what happened".[65]

56 The second statement deals with the question of disturbance of the crime scene but it deals with other matters as well and it does not deal with the question of disturbance of the crime scene until the end of the statement. Detective Ronke explained that he commenced taking the statement by simply asking Christopher to tell him what had happened.[66] He said that this was usual and he said that was so even though a statement had already been taken by another member. Detective Ronke went on:

"Every time I do one of these jobs the member in charge of the investigation likes to sit down with key witnesses and have them tell their story at a time removed from the time that it just happened, to see if anything new came to Christopher or if he could elaborate any further on some of the things that he had told the police the first time, it was only a few hours after finding his dead father."[67]

57 In this second statement Christopher Szitovszky detailed his movements on Tuesday 29 June 2004 and Wednesday 30 June 2004. He said he was still up and on the computer in the study when his father got up at around 5.00 am on Wednesday 30 June. He detailed his movements during Wednesday 30 June 2004. He recounted a telephone conversation on that day with his mother after he had cooked dinner in which he said that he had told his mother that his father was not then home. He repeated what he had said in his first statement that when his father did come home he went out and greeted him in the taxi. He again gave an account of hearing shouting in the night. In this statement he said that he thought he heard his Dad's taxi start up but that he did not know why he thought that. He also said he definitely heard a car start and that he just assumed it was the taxi. He gave more detail in relation to his father's position and how he moved him, and said that he did not move or touch the axe.

58 The accused in his evidence did not suggest that this statement was not a faithful record of what he had said and he agreed that he had been doing his best to be truthful and accurate. He did say that he had had difficulty recalling back to his activities during the day or so prior to finding his father, as he was then being asked to recall events approximately 13 days earlier. He indicated concern that he may have been mistaken about those events.[68]

59 Detective Ronke's evidence was that Christopher Szitovszky had not been under arrest on 12 July[69] and that he was not at that time a suspect.[70]

60 In the course of submissions particular reliance was placed upon two passages of Detective Ronke's cross-examination by junior counsel for the accused in relation to his state of mind at this time.

61 The first exchange was as follows:

"I'm not - you know what a suspect is when I'm referring to the word suspect, don't you? --- If we want to talk 464, no. But he's a person that could possibly have been involved in the death of his father, yes.

As of the 12th did you apprehend the possibility that Chris Szitovszky might possibly have killed his father? --- Yes.

But you say that doesn't elevate him to a suspect under 464? --- No."[71]

62 The second exchange took place in the context of the photographs collected on 5 July and 7 July, most of which were returned on 12 July but some of which were retained. The interchange was as follows:

"You were building a case against Chris Szitovszky? --- I was investigating Christopher Szitovszky, yes.

You were keeping material on Chris Szitovszky in case it later became relevant? --- Yes that's correct.

Because you had apprehended again at that time that he might possibly have killed his father? --- Yes.

And this was these were, this was evidence that you were obtaining that led you to that apprehension, correct, this was all part of the accumulation of facts that led you to form that belief? --- It was all part of the investigation, yes."[72]

63 On Tuesday 13 July 2004 Detective Ronke took a second statement from Shane Taylor and Detective Schulz took a second statement from Michael Pitts.[73] In the statement taken by Detective Ronke, Shane Taylor referred to visits he had made to a clothing shop on 6 July and photos he had taken in that shop. He said that he had definitely not heard a car on the night of the deceased's death. In the statement Detective Schulz took from Michael Pitts he referred to an earlier incident involving Christopher Szitovszky where Christopher Szitovszky had reacted angrily to Pitts using a motorised toy in a nearby park. Pitt also said he had not heard any cars running on the night in question.

64 On Wednesday 14 July 2004 Detectives Ronke and Schulz attended Vermont Auto Gas to follow up on the suggestion or possibility that the person who had been referred to as "Tong" might have a reason to feel resentful towards the deceased. They discovered that the person in question, Tong Leong, had been away overseas until 8 July, and that there was no probability of any resentment in any event.[74]

65 On Thursday 15 July and Friday 16 July there was an email exchange between Detective Ronke and Natalie Pedersen, a forensic scientist, concerning the tests that should be carried out on a set of keys that were found near the deceased. The emails were tendered as Exhibit D on the voir dire. The document tendered has on it a handwritten note, apparently in Ms Pedersen's handwriting, indicating that she had called Detective Ronke and recording the following:

"No reason known for suspect (son) to have handled keys."

66 In his evidence Detective Ronke said he did not recall speaking to Ms Pedersen but that he could have referred to Christopher Szitovszky as a "suspect" to her. He said that when talking to people like her it was easier to refer to someone as a suspect rather than as a person of interest. As to whether he then considered the accused to be a suspect within the meaning of the Crimes Act, he said he was not.[75] In cross-examination he had at one point said that he would not "categorically say" that Christopher Szitovszky was not a suspect on the 16th.[76]

67 At some time on or shortly after 22 July 2004 Detective Ronke received an analysis of phone records[77].

68 Detective Ronke had received security video from the deceased's taxi cab early in July but had not found it useful because it was a collection of many hundreds, or perhaps thousands, of individual frames. He accordingly arranged for the separate frames to be placed on a continuous video. That video was forwarded to him on 26 July 2004.[78]

69 On 27 July 2004 Detective Ronke received material compiled as a result of the computer analysis. He obtained usage charts and information as to downloads and other data for the period of one week prior to 1 July 2004.

70 Detective Ronke's evidence was that Christopher Szitovszky became a suspect from around 27 July.[79] He gave a detailed explanation for the process of reasoning whereby in his own mind Christopher Szitovszky was elevated to the position of a suspect. In substance the explanation was that his review of the phone records, the security video, and the computer analysis, in the light of the various statements and notes held, led him to believe that Christopher had told lies.[80]

71 On 19 August 2004 the police conducted a covert operation in which an operative, referred to as "Rick", approached Christopher Szitovszky suggesting he had witnessed him attacking his father. The approach was reported to police and Detective Ronke spoke to Christopher Szitovszky and obtained his account of the approach on 19 August 2004. Evidence of this conversation was not objected to.

72 Statements were taken from Christopher Szitovszky's friend, Glen Myers, on 25 October 2005 and from Simon Szitovszky's ex-wife, Lisa, on 26 October 2005. On 27 October 2005 a formal record of interview with Christopher Szitovszky was conducted. The accused read out and confirmed the accuracy of the written statements signed by him on 1 July 2004 and 12 July 2004 and was videotaped doing so.

73 Before leaving the account of events it is necessary to briefly refer to one aspect of the evidence of Detective De Chirico. Detective De Chirico gave evidence that on 1 July 2004 she specifically asked both Detective Woodcock and Detective Ronke whether Christopher Szitovszky was a suspect or a witness and was told he was a witness.[81] She also said that she had reminded both of them of this discussion outside Court whilst waiting to give evidence.[82] Detective Woodcock in his evidence agreed that he had discussed the case with Detective De Chirico outside Court "a little bit" but said he did not recall the discussion she referred to outside Court. He did not recall the discussion she said had occurred 1 July 2004.[83] Detective Ronke also could not recall the discussion Detective De Chirico said had occurred on 1 July 2004.[84] He said Detective De Chirico had raised it with him before giving evidence but he said that that was in a phone call and not outside Court.[85] Detective De Chirico has no note of the conversations she says occurred on 1 July 2004. Given that neither Detective Woodcock nor Detective Ronke can recall them I consider that the evidence does not establish that they occurred. I am not suggesting that Detective De Chirico did not give an honest account of her own recollection.

The objective circumstances

74 As at 1 July 2004 and as at 12 July 2004 the position was:

(a) Whilst a description of a person possibly or even probably involved in the attack on the deceased had been obtained which was consistent with that person being Christopher Szitovszky, no identification of Christopher Szitovszky had been made by any relevant witness to the events on the night.

(b) Clothing matching the description of that worn by the person who had been identified had not been located and was not held.

(c) No evidence was held which linked the axe either to Christopher Szitovszky or indeed to the Szitovszky household.

(d) No link had been established, or suggested, based upon forensic pathology or other scientific or crime scene analysis between Christopher Szitovszky and his father's death which was not consistent with his own account.

(e) No admission of involvement in his father's death had been made by Christopher Szitovszky.

(f) Prior to receipt of the phone analysis, the taxi video, and the computer analysis there was no basis for a conclusion that any part of the account given by Christopher Szitovszky could be unequivocally demonstrated to be inaccurate or untrue.

(g) The person who had been identified by neighbours was seen walking away from the Szitovszky house, perhaps suggesting he was not a resident of the house.

(h) Whilst there were, and had been, family difficulties, there was no clear motive. The statements held suggested the relationship between Chris Szitovszky and his father had been poor but was improving.

(i) Up to, and indeed after 12 July 2004, police continued to pursue inquiries which related to the involvement of persons who had nothing to do with Christopher Szitovszky.

75 In all those circumstances it is unsurprising that no submission was pressed that at any relevant time s 464H(1)(b) applied. My conclusion is that it did not.

Detective Ronke's subjective "elevation" of the accused to a "suspect"

76 After receipt of the taxi video, the phone analysis, and the computer analysis, Detective Ronke says that he formed the view that Christopher Szitovszky had told lies. In his evidence before me he said that he sat down and conducted a detailed analysis which led him to this conclusion some time shortly after 27 July.

77 He specifically referred to the following conclusions he reached:

(a) Detective Ronke concluded Christopher Szitovszky had lied about greeting his father in the taxi on his return home at about 9.30 pm the night before his death. He considered that this could be demonstrated to be a lie by the taxi video.[86] The reference to greeting his father is in both of the witness statements signed by Christopher Szitovszky. Detective Ronke suggested that Christopher Szitovszky had told this lie in order to suggest to police that all was well in his relationship with his father.[87]

(b) Christopher Szitovszky had said in his second statement that he told his mother on the phone that evening that his father was not home. Detective Ronke considered that the phone analysis revealed that his father had been in his taxi in Xavier Drive outside the house for 12 minutes at the time of this phone call, and that this could be demonstrated by the phone analysis and the taxi video. For my own part I had difficulty seeing the significance of this matter, other than perhaps as fortifying the first matter, but Detective Ronke considered it to be of significance.[88]

(c) Detective Ronke concluded that the computer analysis, and the taxi booking records, revealed that Christopher Szitovszky had lied about his activities during the night of 29/30 June. Detective Ronke suggested that Christopher Szitovszky did this to add credibility to his assertion that he had gone to bed at 10.00 pm on the night of the murder.[89]

78 Detective Ronke said that he compiled a list of relevant circumstances some time after 27 July 2004 and that he then re-read all the statements and notes and identified what he considered to be further peculiarities or inconsistencies. These included what he considered to be inconsistent accounts of an earlier incident of noise in the street late at night, the peculiarity that at one stage Christopher Szitovszky had suggested he had identified his father's voice as the voice heard in the middle of the night and yet he went back to sleep, and what Detective Ronke considered to be the inconsistency between the suggestion made by Christopher Szitovszky in his second statement that he had heard his father's taxi, on the one hand, and the taxi records that showed the taxi had not been started that night and the statements by the neighbours that they heard no car, on the other.[90]

The relevant provisions of s 464H

79 None of the statements made by the accused to the police to which objection was taken constitute a confession. Nor do any of them contain any significant express admission. It is contended by the prosecution that some of the things said are implied admissions on the basis that they are lies told by the accused out of a consciousness of his guilt. The prosecutor accepted in the argument before me that in these circumstances s 464H is potentially applicable. That seems to me to be the correct position: R v Hazim.[91]

80 Section 464H is directed to the investigating official to whom an admission is made. It does not encompass an official not present when the admission is made, although any improper attempt to circumvent the object of the section by exploitation of this circumstance could be dealt with by exclusion of the evidence on the ground of unfairness: R v Heaney.[92]

81 The section applies in two circumstances. Where the investigating official subjectively has the relevant suspicion (s 464H(1)(a)) and where he or she ought reasonably to have had that suspicion (s 464H(1)(b)).

82 Insofar as the objective circumstance is concerned the word used is "ought". Thus, in that context the question is not whether the investigating officer might or could have suspected, but whether acting reasonably he or she ought to have suspected; in other words, he or she was obliged to suspect: R v Vollmer.[93] I have already addressed that issue.

83 The issue of importance here is the subjective one in s 464H(1)(a).

84 In Heaney[94] the Appeal Division of this Court said:

"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 [1966] HCA 21; (1966) 115 CLR 266, at p 303) but is concerned with a state of mind arrived upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created."

85 In R v Alexander[95] the Appeal Division quoted that passage and then continued:

"The words 'might possibly' in that passage do not operate so as to include within the principle there stated the mere advertence to the possibility of a person having committed an offence (as distinct from an apprehension created thereof). What is required is a positive apprehension."

86 Given the way the matter was put in cross-examination to the investigating officers here, particularly to Detective Ronke, it is necessary to address the issue dealt with in the quoted passages from Heaney and Alexander in more detail.

87 The quoted passage in Heaney follows immediately after the approval of an observation made by Vincent J in Walsh v Loughnan[96]. That observation was to the effect that although a suspicion requires a lesser factual basis than a belief, it must nevertheless be built upon some factual foundation.

88 Walsh v Loughnan did not concern s 464H. It concerned provisions then in the Act dealing with orders directing a person to give a sample of blood. In that context, Vincent J addressed a number of issues including the distinction between suspicion and belief. In relation to suspicion, Vincent J quoted at length from the then recent High Court decision in George v Rockett[97], in which particular reliance had been placed upon the analysis of what amounted to a suspicion in the earlier High Court decision in the bankruptcy case of Queensland Bacon v Rees.[98] The Appeal Division in Heaney also cited Queensland Bacon v Rees.

89 What Kitto J had said in Queensland Bacon v Rees, which Vincent J set out in full in the course of quoting from George v Rockett and to which the Appeal Division in Heaney was clearly referring in the bracketed reference in the quoted passage, was the following[99]:

"A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors."

90 That passage from Queensland Bacon v Rees had earlier been considered and relied upon by Ormiston J in Commissioner for Corporate Affairs v Guardian Investments[100]. The issue there, which arose under the Companies (Victoria) Code, was whether the Commission had reason to suspect that a person had committed an offence. Ormiston J's judgment is instructive in two respects.

91 First, Ormiston J drew a distinction between a suspicion that a person may have committed an offence and a suspicion that a person has committed an offence.[101]

92 Second, Ormiston J considered the authorities in a number of contexts, including criminal contexts, on the concept of "suspect" and expressed a preference for the analysis of Kitto J in Queensland Bacon v Rees. After referring to two decisions of the Australian Capital Territory Supreme Court in the criminal context, Ormiston J said[102]:

"Neither of these cases is sufficient reason for me to consider that the expression 'reason to suspect' comprehends something as slight as reason to consider whether a particular offence has been committed or not. In particular if the latter two cases were intending to express such an opinion I would not follow them. My conclusion is that the word 'suspect' requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not. In the present case I am not satisfied that the witness Whitehouse had, adapting Kitto J's words, any more than reason to consider or look into the possibility of the existence of offences by one or more persons ... ."

93 It seems to me that Ormiston J's distinction between suspecting something may have happened and suspecting that it had happened, and his conclusion that a suspicion is more than merely considering and looking into a possibility and does require some degree of satisfaction not necessarily amounting to belief, accurately reflects what Kitto J said in Queensland Bacon v Rees and also accurately reflects what was later said by the Appeal Division in Heaney and in Alexander. The clarification of the reference made in Heaney to "might possibly" by the Court in Alexander, and that Court's emphasis upon what is required as being a "positive apprehension", seems to me to be an articulation of the same analysis as that of Ormiston J.

94 Based upon the above I proceed on the basis that:

(1) A suspicion does require a degree of satisfaction, although not necessarily amounting to belief. It must be more than speculation. It must have some factual foundation.

(2) A suspicion that the accused may have committed the offence is not what s 464H provides for. The suspicion must be that he had committed the offence. A very low level of satisfaction is required because it is only a suspicion, but the threshold is not to be further lowered by relating the suspicion to something which may have happened or which is characterised as only a possibility.

(3) It is not sufficient to merely demonstrate that the investigating officer was considering and looking into the possibility that the accused had committed the offence.

Critical Issues

95 I turn then to the critical issues raised by these objections. They are:

(1) Was the accused in custody on 1 July or 12 July 2004?

(2) Was the accused suspected by the relevant investigating officer on 1 July or 12 July 2004?

Was the accused in custody on 1/7/04?

96 The submission made in support of the proposition that the accused was in custody on 1 July 2004 was as follows:

(a) It was submitted that the custody was de facto custody as explained in R v Trotter & Ors[103]. It was not put that the accused was in custody as provided for in s 464(1) of the Act.

(b) It was submitted that a conclusion that he was in custody could be reached having regard to a variety of circumstances. They were never exhaustively listed. Some were articulated in the submissions. Some were put in cross-examination. My list of them is:

(i) the length of time he was at the police station,

(ii) the fact he was left alone in an office when not being spoken to,

(iii) the fact he was not permitted to see his mother,

(iv) the photographing and swab taking,

(v) the fact he was offered no food other than a banana,

(vi) the fact he was not given the option to leave,

(vii) the fact he was accompanied to the toilet.

97 I do not accept that the accused was in custody on 1 July 2004. The circumstances are very far from those in Trotter.

98 There was no suggestion in the evidence that he did not go to the police station voluntarily. The accused agreed in his evidence that his intention that day was to co-operate and to assist in any way he could.[104] My conclusion is he did go voluntarily.

99 The time the accused spent at the police station was not inordinate, and was, it seems to me, principally a function of the time it took for the crime scene investigators to complete their work at 17 Xavier Drive. His mother wanted to stay at the police station until she could go home.[105]

100 The accused's experience at the police station was unlike his mother's in that he was photographed and swabs were taken, but that is unsurprising in circumstances where he said he had discovered the body, touched the body, and had blood on him as a result. Otherwise, the accused's experience at the police station does not seem to me to have been greatly different to that of his mother.

101 The police discussed options for leaving with his mother. His mother did not wish to leave. Detective Smith's evidence was that the options discussed with his mother did involve both of them.[106]

102 The accused and his mother were kept apart. I do not find that surprising whilst witnesses are being spoken to in a murder investigation. Perhaps they were unnecessarily kept apart after they had been spoken to but that is not a matter of significance in the circumstances. The last conversation with either of them began at 4.45 pm and they left before 6.20 pm.

103 The accused said he does not think it occurred to him to express a desire to leave.[107] Whilst he did also say he did not think he would be allowed to leave, the fact is he never asked to leave. The evidence of Detective Woodcock was that he could have done so.[108] I accept that.

Was the accused in custody on 12/7/04?

104 In relation to 12 July 2004 the submission was that the accused was in custody by virtue of s 464(1)(c). This would require a conclusion that Detective Ronke on that day held the belief on reasonable grounds that the accused had committed an indictable offence, as provided for in s 459 of the Act. I reject that. Whilst there is room for argument on the evidence before me that Detective Ronke suspected the accused of committing an offence as at that date, I reject suggestion that he held the belief on reasonable grounds that he had done so.

Was the accused suspected by Detective Woodcock, or by Detectives Ronke or Smith, on 1/7/04?

105 On 1 July 2004 Detective Woodcock had very limited knowledge of the matter. Almost everything he did know he had learned from the accused himself. He began speaking to the accused within an hour of the 000 call. He was not kept informed of the progress of inquiries while speaking to the accused and taking the statement from him. Detective Woodcock's evidence was that he did not subjectively have the necessary suspicion. I accept that.

106 I also reject the submission that Detective Ronke or Detective Smith subjectively suspected him in the relevant sense that day. The inquiry was in its very earliest stages. I have referred to the accused's treatment that day. It is explicable by circumstances other than that they considered him to be a suspect. I accept their evidence that he was not.

Was the accused suspected by Detective Ronke on 12/7/04?

107 In my view as at 12 July 2004 Detective Ronke had been considering, was still considering, and was looking into, the possibility, amongst other possibilities, that it was the accused who had killed his father. The issue is whether he had arrived at a degree of satisfaction, not necessarily amounting to belief but extending beyond speculation, and having some factual foundation, that the accused had committed the offence.

108 The factors which might suggest he had formed the relevant suspicion are:

(a) Christopher Szitovszky had been treated differently to other family members on 1 July 2004. He had been photographed, swabs had been taken, and his clothes had been taken. This factor should be discounted in my view, as it is explicable by the accused's discovery of, and contact with, the body.

(b) Detective Ronke had information indicating that the accused did not have a good relationship with his father.

(c) Detective Ronke was aware of aspects of the physical evidence which are now part of the circumstantial case against the accused, being the facts that the porch light was not working and that the back door was unlocked.

(d) Detective Ronke had a description of a person apparently involved in the incident which was consistent with the accused.

(e) Detective Ronke had retained photos of the accused from the holiday photos.

(f) Detective Ronke had been told of possibly suspicious behaviour by the accused involving washing.

(g) The computer had been seized, and Detective Ronke's associate, Detective Smith, had described the accused as a "possible suspect" on the request form.

(h) Detective Ronke had responded to a question from Mrs Myers as to whether the accused was a suspect by saying, perhaps amongst other things, that they always looked at the family first.

(i) Detective Ronke probably did refer to the accused as a suspect when speaking to Natalie Pedersen not long after 12 July 2004 (16 July).

109 Counsel for the accused particularly relied upon Detective Ronke's agreement with the propositions which were put to him and which I have quoted above, and submitted that Detective Ronke had misapprehended what s 464H meant.

110 On the other hand, as at Monday 12 July 2004:

(a) There was no clear identification evidence. Further, enquiries directed at another person, who was also thought to fit the description held, had been pursued by Detective Ronke as recently as Thursday 8 July 2004.

(b) No clothing matching the description given had been located.

(c) No forensic evidence linked the accused to the axe and, indeed, no evidence was held linking the axe to the household.

(d) No forensic or other scientific examination or analysis had implicated the accused.

(e) No express admission of involvement in the killing had been made by the accused.

(f) At that time, on any view of the matter, Detective Ronke had no evidence which might be thought to clearly demonstrate that anything the accused had said was inaccurate or untrue.

(g) The neighbours' evidence in one respect, the fact that the person seen had walked away from the house, perhaps suggested a non-resident of 17 Xavier Drive.

(h) The information held as to family relationships and a possible motive was not compelling.

(i) The possibility that the attack was by a psychiatric patient had been the subject of inquiry as recently as Thursday 8 July 2004.

(j) Whilst it is true that inquiries concerning the family dealt with Christopher more than the others, Mrs Szitovszky (in relation to financial and personal matters) had not been ignored and nor had Simon.

(k) The possibility that there was a person with a motive at the deceased's work was still being investigated by Detective Ronke. Further inquiries in that respect were made on 14 July 2004.

(l) Detective Ronke says he did not consider him a suspect on 12 July 2004.

111 My conclusion is that Detective Ronke did not misapprehend what s 464H required. The propositions he agreed with did not amount to concessions that he did have the relevant state of mind. He was considering the possibility that the accused was responsible. He was looking into that possibility. That is all he was asked to concede and all he did concede in my view. I had a clear impression that, given the circumstances of the death, Detectives Ronke and Smith would have been considering the possibility of involvement by a family member from the very inception of their involvement. They did look at the family first, but they looked at all the family, and they also looked beyond the family.

112 In the circumstances I have outlined I found Detective Ronke's explanation of how he did come to view the accused as a suspect to be credible. It was not until he had evidence which he considered demonstrated that the accused had told lies that he subjectively suspected that he had committed the offence. He did not have that evidence until after 12 July 2004.

113 I accordingly accept Detective Ronke's evidence and conclude the accused was not suspected by Detective Ronke within the meaning of s 464H(1)(a) on 12 July 2004.

Other issues

114 Given my findings on the issue of whether the accused was a suspect, it is unnecessary for me to determine two further matters relied upon by the Crown. They were that s 464H(1)(c) applied to the two written statements, and that the various statements, or the two written statements, ought to be admitted under s 464H(2).

Conclusion

115 I accordingly overrule the objections made based upon s 464H and based upon unfairness or public policy as a consequence of the accused having been questioned whilst in custody without his having been informed of the matters required by the Act.

116 I defer ruling on the separate objection to evidence being led of three things said by the accused about his own character and disposition in conversation with Detective Woodcock on 1 July 2004 after his statement was taken. I will rule on that before Detective Woodcock gives evidence.

[1] Depositions 416.

[2] Depositions 885.

[3] Depositions 421.

[4] Transcript 113 and 116.

[5] Depositions 541.

[6] Depositions 838.

[7] Depositions 372-5.

[8] Depositions 885.

[9] Depositions 541.

[10] Transcript 95-96.

[11] Depositions 342 and 350.

[12] Depositions 399.

[13] Depositions 703.

[14] Transcript 81 and 183.

[15] Depositions 546.

[16] Transcript 101ff.

[17] Transcript 289ff.

[18] Transcript 81 and 113-114.

[19] Transcript 183.

[20] Depositions 541.

[21] Transcript 69.

[22] Transcript 182.

[23] Exhibit B.

[24] Depositions 617.

[25] Transcript 147.

[26] Depositions 885.

[27] Depositions 886.

[28] Transcript 121-2.

[29] Transcript 286.

[30] Transcript 59.

[31] Transcript 63-64.

[32] Transcript 153.

[33] Transcript 171.

[34] Transcript 228-229.

[35] Exhibit A and depositions 886.

[36] Transcript 123-4.

[37] Transcript 161.

[38] Transcript 188.

[39] Transcript 132.

[40] Exhibit E.

[41] Depositions 707 and Exhibit E.

[42] Depositions 659.

[43] Depositions 619.

[44] Depositions 620.

[45] Depositions 661.

[46] Transcript 239.

[47] Transcript 243.

[48] Depositions 620-621 and 881.

[49] Depositions 622.

[50] Depositions 623.

[51] Depositions 391, 711 and 881.

[52] Depositions 623-4.

[53] Transcript 192.

[54] Exhibit E.

[55] Depositions 624.

[56] Depositions 624.

[57] Depositions 625.

[58] Depositions 625-626.

[59] Transcript 285.

[60] Transcript 300.

[61] Transcript 300.

[62] Depositions 626.

[63] Depositions 554.

[64] Transcript 184.

[65] Transcript 184.

[66] Transcript 197.

[67] Transcript 198.

[68] Transcript 301, 304-5.

[69] Transcript 184-5.

[70] Transcript 185.

[71] Transcript 238.

[72] Transcript 246.

[73] Depositions 360 and 376.

[74] Exhibit E.

[75] Transcript 237 and 258.

[76] Transcript 236.

[77] Depositions 958.

[78] Exhibit C.

[79] Transcript 185.

[80] Transcript 259.

[81] Transcript 70-72.

[82] Transcript 76.

[83] Transcript 85-86.

[84] Transcript 256-7.

[85] Transcript 219-220.

[86] Transcript 261-2.

[87] Transcript 265.

[88] Transcript 262.

[89] Transcript 263-4.

[90] Transcript 268.

[91] (1993) 69 A Crim R 377.

[92] [1992] VicRp 84; [1992] 2 VR 522 at 547 ("Heaney").

[93] [1996] VicRp 9; [1996] 1 VR 95 at 120.

[94] [1995] 2 VR 522 at 548.

[95] [1994] VicRp 58; [1994] 2 VR 249 at 255-6 ("Alexander").

[96] [1991] VicRp 75; [1991] 2 VR 351.

[97] Cited as [1990] HCA 26; [1990] 93 ALR 483, and reported at [1990] HCA 26; (1990) 170 CLR 104.

[98] [1966] HCA 21; (1966) 115 CLR 266.

[99] [1966] HCA 21; (1966) 115 CLR 266 at 303.

[100] [1984] VicRp 81; [1984] VR 1019.

[101] [1984] VicRp 81; [1984] VR 1019 at 1023.

[102] [1984] VicRp 81; [1984] VR 1019 at 1025.

[103] (1992) 60 A Crim 1 ("Trotter").

[104] Transcript 296-7.

[105] Transcript 310.

[106] Transcript 145-6.

[107] Transcript 284.

[108] Transcript 113-4.