R v Bogunovic [1999] VSCA 133

Having regard, in particular, to the first ground of appeal, it is necessary to consider with some care the evidence upon which the jury's verdict was evidently based.

47. The sole issue at trial was whether the Crown had proved to the requisite standard that the applicant was the person who had caused the death of the deceased. In proof of that issue the Crown led evidence which was calculated to demonstrate and upon which, in my view, the jury would have been entitled to find:

(a) that the applicant entered and was upon the deceased's premises shortly after Mrs. Ramage, her daughter Karen and the young child of the deceased had left those premises;

(b) that, when he left the premises, the applicant's shoes and tracksuit pants were contaminated with the blood of the deceased. This contamination comprised, in part, blood spatter projected onto the items of apparel in such quantities and patterns as to demonstrate that it had been projected with some velocity sideways and upwards from a blood source close to the ground.

53. The evidence from which the findings to which I have referred were open to be made came from a variety of witnesses.

56. (a) The evidence of Mrs. Ramage and her daughter was that they had left the company of the deceased and her premises at 12.10 p.m. "give or take 3 minutes".

59. (b) There was evidence from a number of persons who lived in the vicinity of those premises that they made sightings of what was later identified as the applicant's car parked on the gravel verge of the Belgrave-Hallam Road some distance (variously estimated to be between 200-400 metres) to the Narre Warren North side of the deceased's premises at times estimated between 12 noon and 12.30 p.m. Two of those witnesses, Mrs. Glenys Jones and Mrs. Jill Fletcher, said that they had seen the car parked opposite Mrs. Jones' house at 182 Belgrave-Hallam Road at about 12.30 p.m., which was the time at which Mrs. Fletcher had arranged to meet Mrs. Jones at her house. Mrs. Fletcher said that, as she drove her car to the driveway outside Mrs. Jones' house she noticed the car parked opposite. The two women met in the driveway of Mrs. Jones' premises and commenced to walk back to Mrs. Fletcher's car. As they did they saw a man walking along the road towards the car parked opposite. According to Mrs. Fletcher the man was by then "reasonably close to the car". The two women then entered Mrs. Fletcher's car and, as Mrs. Fletcher reversed it out of the driveway, Mrs. Jones (who had not noticed the parked car) remarked:

Mrs. Jones said she had then turned around and saw the car driving away.

A young man, James North, who had an interest in cars, had also seen the same vehicle in the same position at about 12.30 p.m. when he was driven past it by his father on 5 May. He noticed the car because of its tinted windows, "spoke wheels" and "full skirt kit". He later identified the applicant's car as the one he had seen. He said that there was no one in it when he had seen it. He had also noticed a mustard-coloured Holden panel van in the middle of Jacques Road some ten metres from its "T intersection" with the Belgrave-Hallam Road. The driver's door of the van was open and there was a male person in the front seat, with one leg out the open door and leaning into the rear of the van.

Robert Berry gave evidence that he, too, had seen the car parked on the gravel verge of the Belgrave-Hallam Road. He said he first passed it at about 12 noon on 5 May. At that time he said he had seen a male occupant seated in the driver's seat. He said he had again seen it when he was returning in the opposite direction at about 12.30 p.m. He said that the male occupant was still seated in the driver's seat.

68. (c) Two of the applicant's workmates - Robert Csiskos and Nikola Veselinovic - gave evidence that they had been at work with the applicant on the morning of 5 May 1997. Csiskos was the step-brother of the applicant. They worked as concretors in a business operated by the applicant's father. Csiskos said that, on the morning of 5 May, they were pouring a concrete slab for a house being built in Endeavour Hills. He had collected the applicant from his home in Regal Avenue, Hallam, at about 6.45 a.m. and had then driven to the work site in Endeavour Hills. They had finished pouring the slab by about 11.30 a.m. when they stopped for lunch. Csiskos said that he and the applicant had then driven off in the former's car to order a meal of fish and chips at a shop which was close to the applicant's home address. They drove to the applicant's house in Hallam where they placed an order, by telephone, for the fish and chips. They had then proceeded by foot to the shop, collected their order, and returned to the applicant's house. The applicant had then told Csiskos that he would have his lunch then and there and drive himself back to the work in his own car. He told Csiskos that he "had to pay something". Csiskos said he took the remainder of the fish and chips and drove himself back to the work-site. He said he had left the applicant at about 11.55 a.m. He later saw the applicant back at the work-site, he believed, some 30-40 minutes later.

Veselinovic said that Csiskos had returned with the lunch at "about noon" and that the applicant had returned to the site "at about 1 p.m.".

Neither witness could say what the applicant was wearing on the day, although Csiskos said that his "feeling" was that when he returned to work, the applicant was wearing the same clothes as he was wearing in the morning.

Veselinovic also said that, later in the day at about 5.30 p.m., the applicant had come around to Veselinovic's house to collect a dog-kennel which the latter had been constructing for the applicant. They loaded the kennel into Veselinovic's utility and they then drove back to the applicant's house in Hallam.

74. (d) Csiskos and another man called Masson, a friend of the applicant, gave evidence that they had visited the applicant whilst he was in custody "about a week" after the 5 May. Each said that the applicant had told them that he had been at the deceased's premises on 5 May and that he had gone there to pay money which he owed to Sourbutts for marijuana. The applicant said that he had gone in the door and had seen the deceased lying on the floor unconscious. The applicant told them that he had "freaked out" and had left the house. Marika Fourkiotis, the applicant's girl friend, also gave evidence that she had visited the applicant many times whilst he was in custody and that he had told her that he "had done nothing wrong" and had also said that he "did not know why he had not reported it".

77. (e) Senior Constables Kealy and Evans were, at the relevant times, specialist crime scene examiners attached to the Victorian Forensic Science Centre. They gave evidence that, in the afternoon and evening of 5 May 1997, they were at the deceased's premises in company with a Mr.Arthur Tsonis, a forensic biologist from the same Centre. Senior Constable Evans said that he specialized in the examination of shoe sole patterns. Mr. Tsonis said that he was an expert in the typing of biological material by "DNA profiling".

Kealy and Evans said that when they arrived at the scene in the afternoon they were able to see bloodied imprints of shoes leading from the point where the deceased had been lying going up and down the carpeted hallway to the sun-room door. On the vinyl floor of the sun-room they could clearly see the outline of the sole of a shoe marked in blood heading towards the rear door. On the top step of the porch outside the rear door was again an outline of a shoe in blood heading towards the back path at the foot of the steps. They further said that as they went along the path around the side of the house towards the front they were able to pick up a trail of blood marks appearing at regular intervals down towards the front gate of the premises. They said that they were present after darkness had fallen when Tsonis used "Luminol", a re-agent presumptive for blood and which luminesces in the presence of blood, to enhance the "bloodied imprints" on the carpet in the hallway and the blood marks around the house. Whilst Tsonis applied the Luminol to the prints on the carpet in the hallway, photographs were taken of the illuminated images. Tsonis said that when the Luminol was applied:

"There were shoe impressions in both directions in the hallway between the front and rear doors of the house, ... there were impressions existing from the rear of the house along the rear concrete path down the side of the house leading to and down the driveway to the front gate."

Tsonis said that when he applied the Luminol to the path it:

"indicated a shoe impression, or a part shoe impression travelling in that direction around the house."

"I was quite happy the impression we followed outside the back exit of the rear of the house and along the path was the same one we followed inside the house."

Tsonis said that no photographs were taken of Luminol enhanced marks outside the house and that he had made no comparison of the marks found on the pathway outside the house with the prints found in the sun room and the back step to determine whether they were made by the same shoe.

Tsonis further said that, with the use of Luminol, he was unable to detect any bloodied shoe imprints leading out the front door of the house.

88. (f) Evans gave evidence that, in August 1997, he had received a pair of Nike sports shoes which had been recovered by the police from the applicant's premises on the evening of 5 May. He had made "test impression overlays" of the soles of the shoes. He made a comparison of those overlays with the blood imprints which had been found and photographed on the vinyl floor of the sun room and the rear porch of the premises. He also made a comparison of the overlays with the imprint which had been found on the glass louvre on the floor inside the rear of the house. He said the comparison revealed that the blood imprints found on the sun room floor and the porch bore the same "class characteristics" and had the same shape and design as the sole of the right shoe taken from the applicant. He also said that the shoe imprint which had been found on the glass louvre (which was not marked out in blood but had been outlined by the use of fingerprint powder) bore the same class characteristics as those found on the sole of the left shoe taken from the applicant.

Evans said that the marks around the path outside the house were insufficiently distinct "to warrant any serious shoe comparison work", although he conceded that one of the marks, shown in photograph 76, appeared to have different characteristics from the imprints which he had found in the sun room and the back porch.

92. (g) The evidence of the contamination of the applicant's clothing with the deceased's blood came from Tsonis and Maxwell Jones, a forensic scientist with the Victorian Forensic Science Centre and an expert in DNA analysis and "blood stain pattern interpretation".

During the search of the applicant's premises on the evening of 5 May, police had recovered a pair of navy blue tracksuit pants and a "T-shirt" from the washing machine in the laundry. Although no eye witness was able to state with any degree of certainty what the applicant had been wearing on that day, Marika Fourkiotis said that she had noticed the tracksuit pants and the "T-shirt" in the machine when the applicant was having a shower at about 6 p.m. in the evening. She said that she had been at the applicant's premises at about 5 p.m. when he had arrived home from work and that he looked "tired and dusty". She said he had then gone out again to Veselinovic's house to recover the dog kennel and had shortly after returned with Veselinovic and the kennel. He had then rung a man called Zweden - on some three occasions - asking him to bring around a gram of marijuana. Thereafter, according to Fourkiotis, the applicant went to have a shower preparatory to them going out for dinner. It was whilst he was having a shower that she saw the "T-shirt" and the tracksuit pants in the washing machine. She asked him whether he had put them there and he said he had. The police accordingly took the "T-shirt" and the tracksuit pants from the washing machine. They also took a pair of Nike sports shoes from a cupboard in the laundry. They also recovered a towel, which appeared to be blood-stained, which was in the washing machine and a white sock which was in the bed room. Stains on the tracksuit trousers, the towel, each of the Nike shoes and the sock were subjected to DNA analysis by Tsonis and found to be the blood of the deceased. No blood was found on the "T-shirt". Tsonis also found and recovered from the tracksuit pants and the right shoe some hair fragments which were labelled and sent to Jane Taupin, a forensic scientist, for analysis. Ms. Taupin compared the hair fragments with samples of the deceased's hair. She concluded that the fragments had similar characteristics to the samples taken from the deceased.

96. (h) On 20 May 1997 Tsonis gave Jones the tracksuit pants and the Nike shoes for examination of the stains. Although Jones had not been at the deceased's premises on 5 May, he also had for his assistance a series of photographs (numbered at trial 10 to 22 inclusive) which showed the significant blood staining on the carpet where the deceased had been lying and blood spatter on the walls, skirting and doors in that vicinity. On examination of the tracksuit trousers, Jones found a number of blood stains which were mainly on the inside of each trouser leg extending from the ankles upwards to the knees, and on the left leg to a height of some 56 cm. On the inside of the right ankle he found, on close examination, stains which he described as "contact stains" which he concluded were stains which occurred:

"following touching or contact with something fibrous, very fibrous and also bloodied with liquid blood ..."

In his opinion the stain was "indicative of bloodied hair contact".

101. (i) Jones also found "quite a number" of what he described as "medium velocity spatter" stains on the inside of each trouser leg, difficult to see because of the colour of the garment and the smallness of the stains, many of which were less than 1 mm in size. These stains, he said, had resulted from an impact - "something striking blood". The spatter, he said, needed "a force applied to create them".

104. (j) Jones said that, on the front of the right trouser leg about 50-60 cm from the ankle, he found a large stain of blood which had "clotted" before being deposited which, in his opinion, indicated that the blood had dried over a period of some time before it had been deposited. It did not appear to him to be a "spattered deposit".

107. (k) The "spatter stains", in Jones' opinion were moving upwards at the time when they struck the cloth of the trouser leg.

110. (l) On examination of the shoes, Jones found a number of "identifiable bloodstain pattern features". On the inside of the right shoe there were "contact" stains which indicated that the shoe had been touching "bloodied fibrous material" which was consistent with hair with liquid blood on it. He also found on the insides of each shoe "medium velocity spatter type stains" which "indicated some degree of force, or considerable degree of force, applied to blood, typical of an impact or an object striking a bloodied surface with force". He said that the left shoe displayed a "directional spattering of blood on the actual tongue of that shoe ... consistent with the source of that blood being on the inside of the shoe and moving". He expressed the view that:

"it appeared that the shoes were in close proximity to some sort of ... application to (sic) force to blood which caused blood to be projected sideways and contact the shoe, contacting the shoes, and the fact that these stains occurred on the inner sides of both shoes made me think and believe that the source of blood may have been at some point in the middle of the shoes ... ."

114. (m) Jones concluded from his examination of all the staining which was on the shoes and the trousers that it was:

"A very, very good indicator of a scenario where a victim may have been between the feet of an assailant who wore these items of clothing as the victim received blows of some sort; so certainly all those stains do indicate that very strongly."

118. (n) Jones gave his evidence by reference to "close-up" photographs which were projected to the jury on slides.

121. (o) In cross-examination it was put to Jones that the medium velocity spatter stains could have been occasioned by a person stepping in the pools of blood on the carpet like a person "stepping in a puddle of water". Jones was resistant to such suggestion, saying that the spatter stains which he saw were unlikely to be caused simply by a person stepping into blood on a carpet, as distinct from a rigid surface. He also expressed the opinion that the blood on the hair must have been very recently deposited to have made the "line stains" which appeared on the trousers and shoes.

124. (p) Jones also agreed, in cross examination, that the "clotted" stain on the right knee of the trousers could have been occasioned by kneeling in the blood.

127. (q) Jones said that the "T-shirt" had not formed part of his examination. He was asked to assume that the wounds which the deceased had sustained to the face, nose, forehead, arms and shoulders had been inflicted whilst she was standing facing her assailant and seeking to defend herself, whilst the linear wounds to the head and scalp were inflicted whilst she was lying prostrate on the floor. On those assumptions, and on the assumption that the assailant was wearing the "T-shirt", he did not agree that it was "inconceivable" that there would not be blood staining on the shirt. It was put to him that a Dr. Byron Collins would say that, on the assumptions which he had been asked to make, it would be highly improbable that the upper garment would have been free of blood. He disagreed, and added that in any event one would also have to assume that the "T-shirt" was the outer garment. He said:

"... situations where people are severely injured when they are on the floor, an assailant ... nearby obviously will more likely have blood-staining around the lower legs and so forth ... . I wouldn't be prepared to rule out a ... person just because they didn't have blood on their upper body."

131. The applicant, as I have previously said, gave sworn evidence and, for the first time, gave his version of the events in which he had been involved on the 4th and 5th May 1997. He said that at about 9 p.m. on the evening of 4 May he had gone to the premises of the deceased to buy a gram of marijuana which he wanted for recreational use. He spent 10 minutes there. He said that he, Sourbutts and the deceased were "very good friends". On the following day, 5 May, he had been picked up by Csiskos and driven to his place of work at Endeavour Hills. They stopped for lunch at about 11.30 a.m. and he and Csiskos had driven back to his house in Hallam to order lunch. They collected the fish and chips. He told Csiskos that he intended to go to Fountain Gate shopping centre to pay an instalment of a Mastercard bill which he owed. He said that he set off at about 12 noon in his car along a route which took him past the deceased's premises in the Belgrave-Hallam Road. He said that as he was going past the Sourbutt house he ran out of petrol and pulled over to the side of the road some 300 metres on from the house. His fuel gauge, he said, was faulty and that he commonly ran out of petrol. He then decided to walk back to the deceased's premises to see if he could get a lift or make a phone call. He went to the front door which was "slightly open". He said he knocked but, when there was no answer, he pushed the door open. He saw the deceased lying in the hallway. She was "on her side" facing the double doors of the lounge room with her head near the "major pool of blood". He approached her on the left hand side. He said he was "close to her head" and "crouched down on one knee beside her". He said he had been "standing in the middle of those pools" of blood. He said she had green tape around her mouth which he pulled down past her chin so that she could breathe. She was "breathing heavily with blood coming from her mouth, splattering". He said that he checked her pulse and that, as he was doing so, heard a "crunch of glass at the back door". Although he was "horrified" he went towards the back door "to have a look". He moved down towards the back door but "did not see anybody". He saw the glass louvres lying broken on the floor. He could not recall stepping on one but there was "a possible chance" that he did. He walked "to the back porch - that's as far as I looked", but saw nothing. He did not walk around the back path but went back through the rear door into the front foyer and "left through the front door". He had a "quick glance" at the deceased as he went past but she had not moved. When he was asked why he did not "examine her", he said:

"I don't know, I actually was in quite a state of panic after seeing what I did and I just wanted to get out of there. I was very nervous."

He said that he "actually ran out of the premises via the front driveway and ran down the road ... so that I could get away ..., then slowly walked back to my car". He said he was carrying nothing with him and that, when he had got back to his car, he "looked into the boot to see if anything could assist me" and found a "jerry can of lawn mower petrol". He put this into the car and it started.

He said he went straight back to work and resumed his role. He said he was "very shocked" after what he had seen and "just wanted to block everything out of my mind". He got back to work "between half past 12 to quarter to one". He finished work at "about quarter to five", went home and then went to Veselinovic's home to get the "dog-kennel". After he returned he had a shower and put his clothes into the washing machine. He said he had not noticed any blood on his clothes which were the navy blue tracksuit trousers and the black "T-shirt". He agreed he had been wearing the "Nike sports shoes". He said he had been to the petrol station on the way home from work, had put $10 of petrol into the tank, and purchased some dog-food and Coca-Cola. He said that he had called Zweden to drop in a gram of marijuana because "after seeing the horrific sight, I wanted to put it behind me". When Zweden came, close to 7 p.m., he smoked the marijuana. When asked whether he had spoken to Marika Fournikotis about what he had seen he said:

"No ... I was quite frightened to speak to anybody because it was such a big shock to me, I was that disturbed I didn't think I would open up and tell anybody what had actually happened."

He said he then smoked the marijuana and then went to his brother's house where they were "supposed to have tea". He was intercepted by police on the way. He said that he "definitely" had not assaulted the deceased - "she was a close friend" and that it was "not possible" that he could hurt her.

He was asked by his own counsel why he did not tell anybody - his workmates or his girl friend - of the events which he had seen. He replied:

"I was quite scared. I was scared of telling people. I didn't know what people were going to think. I was actually quite frightened myself. ... I was quite frightened and disturbed about what had actually happened. I was quite scared to mention it to anybody. I just acted like nothing had happened; I pretended I didn't see any of what I did. I was quite scared."

In cross-examination he was pressed strongly about this answer and asked why, when he saw his close friend suffering and close to death, he had not called an ambulance or summoned police; or at least told others who were close to him. His answers were much the same as he had told his own counsel : he had "panicked", he "was not thinking", it was "something I am going to regret", he was frightened because the perpetrator "might have still been on the premises" and so on. He denied that he had "wended (sic) a story around the Crown case" including his claim to have "run out of petrol". He said he "wasn't aware he had a jerry can in there and, secondly, that wasn't the correct petrol to use ...". He said he had "stood quite close to (the deceased) to take the tape off her mouth". He said that it was as he was crouching down to remove the tape and take her pulse that he heard the noise of breaking glass. He said that there "were a couple of blood marks beside where I was standing" but that he "didn't see anything down the hallway". He agreed that the blood footprints in the hall would have been his.

He agreed that he was a "quite heavy" smoker of marijuana and that Sourbutts had shown him the plant he was growing in his bath-room on the evening of 4 May.

He said that, on 5 May 1997, he was only away from his car for "10 minutes at the most" and that he had left the house via the front porch.

144. The only other witness called by the defence was Dr. Byron Collins, a consultant forensic pathologist, who described himself as an expert in "blood dynamics". He said that the face and scalp were extremely vascular and that injuries to the nose, mouth and eyebrow would give rise to large amounts of blood. He said that it was reasonable to infer that the injuries to the face of the deceased and the "defensive injuries" to hands, arms and shoulders preceded the wounds to the head because the latter wounds would be difficult to inflict if she was erect. He said that:

"... having regard to the entire spread of blood that one sees in the various photographs, and the constellation of injuries both on the ... front and back of the head, in my view it would be highly improbable that there would not be some blood contamination of the upper garment of an individual who was involved in that sort of attack".

Although apparently qualified to do so, Dr. Collins did not comment upon, nor did he traverse, the opinions formed and expressed by Mr. Jones in respect of the blood staining on the shoes and tracksuit trousers.

149. Against the background of this summary of the evidence, it is appropriate now to consider the applicant's primary ground of appeal; namely that the jury's verdict is "unsafe". The applicant's counsel made it clear that this ground was an appeal to this Court's jurisdiction, pursuant to s.568 (1) of the Crimes Act 1958, to set aside the jury's verdict on the ground that it is "unreasonable or cannot be supported having regard to the evidence" (cf. M. v. The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 492 per Mason, C.J., Deane, Dawson and Toohey, JJ.). Such ground assumes that there is, as a matter of law, evidence to sustain the jury's verdict but requires the Court of Appeal to make its own assessment of that evidence to determine whether, in its view, it was open to the jury upon that evidence to be satisfied beyond reasonable doubt of the accused's guilt. As their Honours said in M's case (at 493):

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." (See also Jones v. The Queen (1997) 191 C.L.R. 439 at 450-1 per Gaudron, McHugh and Gummow, JJ.)

However in answering the question which is posed for it by this ground of appeal the Court is not to isolate its task to a mere examination of the transcript of evidence and the exhibits without having regard to the fact that it is the jury which is the body entrusted with the primary responsibility of determining the guilt or innocence of the accused and is the body which has had the benefit of seeing and hearing the witnesses. In performing its task the Court of Criminal Appeal must pay full regard to those considerations (M. v. The Queen, supra, at 493 per Mason, C.J., Deane, Dawson and Toohey, JJ.; Jones v. The Queen, supra at 451 per Gaudron, McHugh and Gummow, JJ.).

In M. v. The Queen, supra at 494, the majority judges explained the court's task in the following way:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. 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. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a reasonable doubt which a jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."

156. Before this Court Mr. Tehan, for the applicant, submitted that the application of this test should lead the Court to the conclusion that the jury's verdict is unsafe. He did not suggest that any of the evidence upon which the verdict must have been based was wrongly admitted or that, save in one respect to which I shall return hereafter, the judge was in error in directing the jury as to the manner in which they were to perform their function. His submission was that, on an assessment of the evidence, this Court should conclude that its nature and quality are such that the jury , acting reasonably, should have entertained a doubt as to the guilt of the applicant.

159. It is true, as applicant's counsel pointed out to this Court - and, indeed, as his trial counsel had pointed out to the jury - there were certain puzzling features to the evidence. For example, there was no apparent motive for the applicant to have launched such a vicious assault upon a person who, on the evidence, was a long time and close friend. On the other hand, there was no evidence suggesting that there was any motive for the crime whether committed by the applicant or some other unknown assailant. The evidence demonstrated that the deceased had not been sexually assaulted, and there was no suggestion that robbery was the motive for the crime. Nothing had been taken from the premises and $100 was found in the deceased's hand-bag. Further, it was emphasized that, despite intensive searches, the weapon which inflicted the injuries upon the deceased was not found. As was pointed out both to the jury, and this Court, neither Mrs. Fletcher nor Mrs. Jones, who had seen a man (presumably the applicant) returning to the car, had noticed him carrying anything. No weapon had been found in the applicant's car nor anything suggesting that a weapon contaminated with the deceased's blood had been placed in the car.

There were also other matters which applicant's counsel contended were not answered by the evidence:

* the failure to find any evidence of the deceased's blood on the "T-shirt" when, according to Dr. Collins, the nature of the assault on the deceased, the wounds inflicted and the wide spread of blood stains found would render it improbable that the assailant would be free of blood-contamination on the upper garment. Although no one other than the applicant had said that the "T-shirt" was the upper garment he was wearing, it was contended that it would be unreasonable for the jury to find that he was not wearing that shirt.

* the fact that the applicant had left his car, fully exposed to view, some 300 metres along the road when, if he was bent on assault, he could have driven it into the driveway where it would have been concealed.

* the fact that the applicant had returned to work in clothing which was in fact contaminated with the deceased's blood; although he conceded that he was not aware of it.

* the existence of "clotted blood" near the knee of one leg of the trousers indicating that that had been a discrete time delay allowing the blood to clot before it could have been deposited.

* the existence of a shoe print found on the path outside the house which, on one view of the evidence, did not match the applicant's shoe prints.

* the "mystery" of the green tape which had been wound around the head of the deceased. There was no evidence that such tape had been found in the possession of the applicant or at his house or in his car. Such tape, it was contended, was likely to have been used by a person with knowledge of the use of the premises for drug-dealings rather than by the applicant who was on his way to work as a concretor and who was familiar with the deceased.

169. Each of the matters to which I have referred in the preceding paragraph were indeed puzzling aspects of the circumstantial case which the prosecution made against the applicant and were clearly matters which deserved consideration by the jury in determining whether the Crown had proved beyond reasonable doubt that the applicant was the killer of the deceased. However, in my view, they cannot conceal the cogent evidence upon which the jury were entitled to find that the applicant was the person who caused the death of the deceased. The evidence upon which the jury were entitled to act was as follows:

(i) The evidence of Mr. Jones, as I see it, was clearly damning of the applicant. That evidence demonstrated that there was medium velocity spatter of the deceased's blood on the shoes of the deceased and extending up the inside of the trouser legs on each side to approximately knee height which could only have been deposited there in the quantity and distribution found as the consequence of something impacting forcefully upon the blood source in close proximity to where the spatter was deposited resulting in blood being projected sideways and upwards from that source onto the trouser legs and the shoes. This evidence went unanswered. The only explanation given by the applicant was that it must have occurred when he trod in a pool of the deceased's blood which had formed on the carpet. Not only was this explanation rejected by Mr. Jones but the jury was entitled to find that it was contrary to the probability of a foot being placed in a pool of blood which had accumulated on carpet. The fact that the spatter was found on the inside of each trouser leg up to a height of 56 cm on one side and 50 cm on the other side could not reasonably be explained by the actions which the applicant described. He said that he had crouched, or knelt down to one side of the deceased. Such action could not explain the even distribution of medium velocity spatter up the inside of each leg, nor could it explain the "filament lines", consistent with contact with freshly flowing blood on the hair of the deceased found on the inside of each shoe. Dr. Collins, the expert called by the applicant, did not traverse this evidence given by Jones; nor did he give any explanation consistent with an "innocent deposition" of such blood spatter. Collins' evidence was confined to the improbability of such a ferocious assault having been perpetrated without some blood trace being left on the upper garment worn by the perpetrator. But that evidence left untouched the incriminating evidence of Jones which, if accepted by the jury, could only lead them to the conclusion that the applicant was there when the blood was being spattered through the application of force. If accepted, there was no need for the jury to resolve the question left by Collins' evidence; that is, whether the assault could have taken place without blood getting on to the upper garment; or whether the applicant was wearing the "T-shirt" or whether, if he was, that was the outer garment he was wearing.

(ii) Furthermore, the evidence of the bloodied shoe imprints was also incriminating of the applicant. The applicant did not deny that it was his shoe imprints found in the hallway or on the sun-room floor or on the back porch. Indeed his evidence was that when he came upon the scene he did not see any "blood marks" in the hallway other than those where the deceased was lying. When asked whether he had seen any bloodied imprints "down the hallway", he said: "No". He was then asked:

"So we can take it, can we, you made the marks, the bloodied footprints in the hallway?"; to which he replied: "Yes, I would say that's correct."

In the face of this evidence, and that of Tsonis, the jury were entitled to find that the only footprints in the hallway, and through the sun-room and onto the back porch were those made by the applicant. Having regard to the absence of any similar foot-prints coming back into the house on the hard surfaces of the porch and the sun-room, and in the absence of blood traces leading through the front door, the jury were entitled to infer that the "trail of blood" on the pathway around the side of the house was left by the applicant.

On any view of the evidence, the assault upon the deceased must have occurred very shortly after Mrs. Ramage had left the premises at 12.10 p.m. The applicant's car was seen some distance up the road at about 12 noon and it was he, presumably, who was seen returning to it at about 12.30 p.m. His work-mates had him returning to work between 12.30 and 1 p.m. The applicant did not dispute these time frames, but said that the assailant must have got in just before him; indeed the thrust of his evidence was to suggest that the assailant was still on the premises when he entered. Yet neither the applicant nor anyone else saw this "assailant". Apart from the "mustard coloured" Holden panel van which was seen by James North in Jacques Road some kilometre away from the deceased's premises at about 12.30 p.m., no one saw any other person or vehicle in the vicinity of those premises at the relevant times. The accused did not say that he saw any other person or vehicle as he was approaching the premises, or whilst he was there, or whilst he was leaving. He did not suggest that there was any vehicle in the driveway of the premises when he entered; nor did he see any person when he looked after hearing the sound of "crunching glass"; nor did he say that he heard any sound of a vehicle starting up or leaving the premises whilst he was there.

The jury was entitled to find, in my view, that in the time span available, which his trial counsel described as "very, very narrow", it was highly improbable that another unseen and unidentified person, bent upon an apparently motiveless crime, went to and was upon the premises at the same time as the applicant.

The jury were also entitled, in reaching the conclusion which they did, to take into account the applicant's behaviour in leaving the premises and abandoning a gravely injured "good friend" without summoning any form of assistance for her or reporting the matter to friends, workmates, or police.

184. In the light of the evidence to which I have referred this was not, in my opinion, a case where the nature and quality of the evidence was such that the jury, acting reasonably, were bound to have a doubt as to the guilt of the applicant. There was nothing about the evidence in this case which raises any possibility that the jury may have been mistaken or misled as to its weight or significance or the manner in which they were to approach it in the performance of their task. Indeed, this was a case which, in my view, was particularly apt for jury consideration and determination. Much depended upon the jury's view of the credibility of the applicant and the version of events which he gave, including his explanation for not summoning assistance for the deceased, his reason for going to the premises in the first place and his explanations of his movements within the premises. The jury were entitled to have reservations about his assertion that he was intending to go to Fountain Gate to pay a Mastercard bill, when he had told others he was intending to go to the deceased's premises to pay off a drug debt; they were entitled to have reservations about his claim to have entered and left the deceased's premises via the front door when there was no evidence of prints, even with the aid of Luminol, that supported such a claim. Equally they were entitled to disbelieve his assertion that he had "run out of petrol". That assertion essentially depended upon the jury's acceptance of his claim that he was on his way to Fountain Gate when other evidence suggested that he had intended to go to the deceased's premises to pay a debt. No doubt the jury would have been faced with difficulties in accepting his evidence that he had "run out of petrol" in the face of the evidence of Mrs. Jones and Mrs. Fletcher from which the inference could be drawn that his car had been driven quickly from the scene after he returned to it. This evidence did not, as it seems to me, sit easily with his evidence that, having returned to his car, he had gone to the boot to see whether he could find something to start it, discovered a can of lawn mower petrol which he was able to pour into the tank.

These were very much jury questions and it is clear from their verdict that the jury must have rejected the thrust of the applicant's evidence. Having regard to the advantage which the jury enjoyed and further having regard to the cogent evidence upon which, in my view, the jury was entitled to find that the applicant was the assailant, I am not persuaded that their verdict is "unsafe" in the sense that they ought to have, acting reasonably, entertained a doubt as to the applicant's guilt.

188. The only other ground of appeal argued on behalf of the applicant was that the judge misdirected the jury in "failing to direct [them] upon consciousness of guilt".

191. In support of this ground, the applicant submitted that the prosecution had cross-examined the applicant so extensively upon his explanation for not summoning assistance for the deceased after finding her in a moribund state and had made such capital out of this issue in its final address to the jury, that the judge was obliged, but failed, to give to the jury what counsel called a "consciousness of guilt direction". As I understood the submission, it was that the prosecution had made so much of the accused's behaviour that it was, in effect, inviting the jury to treat it as akin to consciousness of guilt in much the same way as "flight" or a "material lie"; and that therefore the judge should have warned the jury that they should understand that there may be many reasons why the applicant might have behaved in the way in which he did and that, before they could use it as probative of guilt, they should be satisfied that the reason for his behaviour stemmed from a realization of guilt of the crime charged. Counsel referred us to Edwards v. The Queen [1993] HCA 63; (1993) 178 C.L.R. 193 and R. v. Adamson (Court of Criminal Appeal, unreported, 19 April 1994) which are authorities concerning the adequacy of directions where the Crown has relied upon lies told by the accused or flight as evidence of consciousness of guilt.

194. It is true that his Honour did not give a direction along the lines which applicant's counsel now says that he should have. In my opinion, and having regard to the way in which the case was conducted at trial, there was no obligation upon his Honour to do so. As I have previously noted, the first time the applicant gave his version of the events which had occurred on 5 May was when he gave evidence. In the course of his evidence in chief, and no doubt realizing that some explanation was called for, he gave his reasons for not alerting any person to the plight of the deceased. He said in response to his counsel's questions:

"... actually I was quite frightened to speak to anybody because it was just such a big shock to me, I was that disturbed I didn't think I could open up and tell anybody what had actually happened."

When his counsel persisted with his inquiry as to why he had said nothing, he replied:

"I was quite scared. I was scared of telling people. I did not know what people were going to think. I was actually quite frightened myself. It was like, what I had seen my mind had blocked it out, and I was quite frightened and disturbed about what had actually happened. I was quite scared to mention it to anybody. I just acted like nothing had happened, I pretended I didn't see any of what I did. I was quite scared."

200. In this way the applicant's own evidence as to why he did nothing to assist his grievously injured friend became an integral part of his version of what he had seen and done on 5 May. The prosecutor was entitled to and did probe the applicant upon this version of events, including his explanation for not summoning assistance, for the purpose of demonstrating that the version was an unbelievable one. Indeed this was how the prosecutor put it to the jury; namely that they should reject the applicant's account as "absolutely unbelievable", and as one which was "rehearsed" and calculated to "fit in" with the prosecution evidence.

203. It seems to me that the applicant's argument in support of this ground proceeds upon the erroneous assumption that the prosecution was relying upon the accused's conduct in leaving the premises without summoning assistance or alerting others as an implied admission of guilt. But in my opinion that was not so. The case made by the Crown to prove that the applicant was the assailant was, as his Honour told the jury, wholly circumstantial and depended for its proof upon the force of a combination of circumstances, one of which was the fact that the applicant had departed the premises without raising an alarm or summoning assistance for a friend whom he knew was gravely injured. As I have already noted, it is apparentthat when the applicant, in evidence, advanced for the jury's consideration his "innocent hypothesis", he was acutely aware that an explanation for this conduct was called for. It was those explanations which the prosecution invited the jury to reject as "unbelievable". But the prosecution did not invite the jury to treat either his conduct, or the explanations given for it, as an implied admission of guilt calling for a judicial direction of the type for which the applicant now contends. No such direction was sought by the applicant's experienced trial counsel and no exception was taken in this regard to his Honour's full and careful charge. This no doubt was because such a direction would have been superfluous in the context of a case where the learned judge was obliged to, and did, give the standard circumstantial evidence direction - namely that unless the jury were satisfied beyond reasonable doubt that the combined force of circumstances, as they found them to be, excluded any reasonable hypothesis consistent with the applicant's innocence, they must acquit. As the only such hypothesis was the one put forward by the applicant in his evidence, it seems to me to have been implicit in the direction which his Honour gave, and presumably acted upon by the jury, that they could not convict the applicant unless they were ultimately satisfied, inter alia, that his conduct in leaving the premises without summoning assistance or informing others was incapable of bearing a construction consistent with his innocence.

206. For the foregoing reasons, I am not persuaded that either of the grounds argued has been made out and, in my opinion, the application for leave to appeal against conviction should be dismissed.

210. I entirely agree with the reasons for judgment that have been prepared by the President, which I have had the benefit of studying in draft. I shall add for myself only a few comments respecting the first ground relied on for the applicant - that the verdict was unsafe.

213. Certainly, there are some puzzling features of the case, not the least of which is a want of a suggested motive for the applicant to kill his friend. There is, however, to my mind neither perplexity nor circumstantial paradox to which the evidence does not provide a reasonable answer.

216. An appellate court's task when a verdict is attacked as unsafe is to consider whether, on the evidence, it was open to the jury to be satisfied beyond reasonable doubt that accused was guilty: M. v. The Queen (1994) C.L.R. 487, at 493, 494-5. I do not understand that the task should necessarily require the appellate court to resolve conflicts of evidentiary detail, or to seek to justify features of the case that are unexplained by the evidence, any more than the jury was to be expected to do so.

219. This was pre-eminently a case in which the jury were obliged to consider closely the evidence as a whole, and most particularly in its context that of the applicant, in order to form an appreciation of the scene and circumstances of the crime. Of course the overall effect of the detail is not necessarily the same as the sum total of the individual details: cf. Transport Industries Insurance Co. Ltd. v. Longmuir [1997] 1 V.R. 125, especially at 141.

222. The applicant's conduct in leaving the scene of the crime without raising an alarm or seeking assistance, in association with his explanation for that conduct and the time at which he gave the explanation, were strong and pregnant evidence of guilt for the jury's consideration: cf. Wills on Circumstantial Evidence, 7th ed., 436-7_._ The significance against him of his evidence of his admitted conduct lay in both its inherent improbability as the conduct of an innocent man and its very probable inconsistency with his explanation for it - a wish to make a quick or urgent departure. As he said in cross-examination, "I just wanted to actually get out." The explanation was itself also difficult to reconcile with the applicant's stated reason for his visiting the deceased's house at a time very close to that of the murder, namely "to see if I could seek help" after his car had run out of petrol. It would not be in the least surprising if the jury had thought that the explanation for the visit did not square with the applicant's description of his activity immediately after he left the house. A stated intention to make quick or urgent departure in a car believed to be out of fuel must labour under a powerful handicap as to its credibility.

225. Taken in association with the nature of the applicant's admitted contemporaneous conduct, and the quality of his explanation for it, the time at which he chose to offer his explanation is in my opinion not now to be realistically ignored in making an assessment of the safeness of the verdict. This case was, I should say, one in which the explanation that the applicant eventually gave in the witness box would "...spring unbidden to the lips of an innocent man the moment he was accused of the crime...": Wills_, op. cit._ 114_._ Had he stated, when or shortly after he was first apprehended, the explanation he ultimately gave for coming to and going from the deceased's house, the truth of it could probably have been the subject of inquiry. The following observation in Wills, loc cit., is apposite -

"In all cases, if the explanation or statement involves allegations of fact, the truth of which can be inquired into, the value to be attached to it will depend, and ought to depend, largely upon whether the opportunity for inquiry is afforded by the person inculpated. If the opportunity be given, and the facts alleged are not contradicted by evidence, the natural and proper inference is that they are true, and the accused person ought to have the full benefit of such an inference. If they are suppressed until inquiry is impossible, while it is too much to say that they ought not to be listened to and considered, the credit to be given to them and to any evidence by which they may be supported ought to be largely discounted."

229. The case made against the applicant, essentially a circumstantial one, exemplifies the potential probative quality of some circumstantial evidence in comparison with the quality of some direct or testimonial evidence. This case can readily be contrasted, for example, with M. v. the Queen, supra, in which the High Court by majority held a verdict to be unsafe. There, the Crown case depended very largely on the uncorroborated and partly inconsistent and therefore potentially unreliable evidence of the accused's daughter, the complainant, with which his own evidence was in direct conflict. As was pointed out in the joint judgment, at 500, an innocent man could have done no more than the accused did in conducting himselfas he did during his interview with the police and giving evidence at his trial. The present case left some questions of fact unanswered by direct evidence, but there were few if any internal conflicts in the evidence called for the Crown. The circumstantial evidence to which I have referred, taken together with such of the testimonial evidence as the jury accepted, was in my judgment sufficient to justify their satisfaction of guilt beyond reasonable doubt without resolving the unanswered questions.

232. I agree that the application should be dismissed.

237. I agree in the conclusion reached by the other members of the Court, but I have arrived at it by a slightly different train of reasoning. This was a circumstantial case, so that the Crown had to exclude any reasonable hypothesis consistent with innocence. I start with an hypothesis to which I think the jury were bound to give close attention, namely that Jodie Ramage was killed by an intruder shortly before the applicant arrived.

240. There is a good deal of evidence to support that hypothesis. The house was used for a low level drug-trafficking operation. It had been broken into from the back on previous occasions. A burglar might well carry the kind of green tape that was used to gag the deceased as part of his kit. If he took the blade of the samurai sword away, that would explain why it was not found. No such tape, and no trace of the blade, were found in the vicinity of the house or at the applicant's home or in his car. The bloodied footprint in photograph 76, and perhaps also the footprint in photograph 83, looked different from that of the applicant. Mr. Tsonis examined scrapings from under the victim's fingernail. The DNA was hers and that of a person other than the applicant. Her child was not excluded. I do not attach significance to the panel van parked in the middle of Jacques Road.

243. The strongest component of the Crown case was the evidence about the bloodstains. It is very difficult to explain the medium velocity spatter type stains on both legs of the applicant's trouser pants if his movements were as he described them. The stains on his runners may be more equivocal. There is also the rest of the evidence about the footprints. The bloodstain evidence does, however, contain an element that is quite strongly supportive of the alternative hypothesis. Two of the stains were of clotted blood. Mr. Jones said that blood takes "a minimum of say several minutes, possibly longer" to clot. If an intruder had left before the applicant arrived, the victim's body would exude both fresh blood and clotted blood and both might be found on the clothes of a person coming in contact with her. If the applicant was the assailant, the blood clots are explicable only on the basis that there was a series of assaults extending over several minutes. That is, of course, a distinct possibility, for he must have had time to inflict three classes of injuries and bind the tape around her mouth.

246. Is there evidence in addition to the interpretation of the medium velocity spatter type stains and the footprints of sufficient strength to displace the hypothesis of an intruder who broke in, gagged the deceased, assaulted her and took the murder weapon with him? The whole case must be considered, but I turn to the other two aspects of the evidence that the learned President has emphasized.

249. The narrow time-frame, which was common ground, is consistent with the applicant's being the murderer or arriving at the scene shortly after an intruder. It is other factors that must determine the choice, having regard to the burden and standard of proof, between those hypotheses. If, for example, the house had been an ordinary domestic dwelling with no history of break-ins, the blade of the samurai sword had been found in the garden and the green tape had been explained, the applicant's presence at the critical time would surely convict him. But this was a house where there had been intruders before, a house engaged in an unlawful trade whose participants are no strangers to brutality and irrational violence.

252. The applicant's conduct is much more telling against him. If he is innocent but his conviction stands, he has himself to blame. Who but the murderer, it might be asked rhetorically, would fail to seek assistance for a dying friend and continue to do nothing even after there had been an opportunity for panic to subside? It is said against that that the motiveless and brutal killing of such a friend is also contrary to human nature.

255. It will be apparent from the foregoing that I have been greatly troubled by this case, without even referring to the principal argument deployed by defence counsel at the trial. That argument was the probability that there would have been bloodstains on the applicant's T-shirt if he had been the assailant. Dr. Collins gave evidence to that effect. Mr. Jones disagreed. He did so partly but not wholly on the basis that the applicant may have worn a garment over his T-shirt, but there is no reason to think that. No one saw it. If it existed, what became of it? If the applicant got rid of it, why was he so careless with respect to the rest of his clothing? There were blood spatters on two of the walls and a cupboard door which, despite their downward trajectory, were nearly a metre above the floor. Put the T-shirt to one side. Why were there no bloodstains on the upper part of the applicant's tracksuit pants?

258. Nevertheless, if the applicant had stood mute he would inevitably have been convicted. Does he make his position better if he gives evidence that the jury are entitled to disbelieve and do disbelieve? Compare Broadhurst v. R. [1964] A.C. 441 at 457 lines 25-27.

261. In M. v. R. [1994] HCA 63; (1994) 181 C.L.R. 487 at 494 Mason, C.J., Deane, Dawson and Toohey, JJ. said that it was 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. This jury had the not inconsiderable advantage of seeing and hearing the applicant give his evidence. They were entitled to disbelieve his account of running out of petrol and later remembering the can of motor-mower fuel. (He told other witnesses that he had gone to the house to pay for marijuana, but that was not put to him in cross-examination.) They were entitled to think that a man would not behave as the applicant did if he discovered a close friend in danger of death. There may also have been aspects of his voice or demeanour that cannot be discerned from the transcript, but care must be taken with that argument. For juries, unlike judges, do not give reasons. The argument, if pressed too far, would entitle a jury to disbelieve any accused. I have read the applicant's evidence twice before concluding that his manner of giving it may have been relevant. It is only part of my reasoning in concluding that the verdict was not unsafe.

264. I have disregarded the applicant's exercise of his right to silence until the trial, without deciding whether, and if so for what purpose, it is permissible for a court of criminal appeal to take that into account: cf. Petty v. R. [1991] HCA 34; (1991) 173 C.L.R. 95 especially at 101 and Weissensteiner v. R. [1993] HCA 65; (1993) 178 C.L.R. 217 especially at 228-229.

267. There is more than one answer to the other ground of appeal, which refers to consciousness of guilt. First, as I have already said, the jury were entitled to consider that the applicant's conduct was inconsistent with his unexpected discovery of the victim. Secondly, if the jury used the applicant's inaction on the afternoon of the crime as evidence against him, that was not on the basis that it reflected a consciousness of guilt or constituted an implied admission (if there be any relevant difference, which I doubt) but on the simple basis that the offender would not seek assistance or report the offence.