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[2008] VSCA 240
Court of Appeal (Vic)
2008-12-03
Vincent, Neave and Weinberg JJA
Original judgment source is linked above.
CRIMINAL LAW - Conviction - Murder - Circumstantial evidence - Admissibility - Revolver and ammunition of same kind as those used to murder victim and other firearms found at house occupied (or once occupied) by applicant's mother - Whether trial judge erred in allowing admission of evidence of revolver and ammunition of kind used to commit offence - Whether judge erred in allowing admission of evidence of other firearms - Whether jury given proper directions regarding use to which evidence could be put - Whether admission of evidence gave rise to a miscarriage of justice - Application dismissed.
CRIMINAL LAW - Sentence - Applicant sentenced to life imprisonment with no minimum term - Whether sentence manifestly excessive - Whether trial judge erred in not setting a minimum term - Application dismissed.
Mr S Ward, Acting Solicitor for Public Prosecutions
1 The applicant, Bandali Michael Debs, was convicted in the Supreme Court, at Melbourne, of the murder of an 18-year-old girl, Kristy Mary Harty. He was sentenced to life imprisonment with no minimum term. He now seeks leave to appeal against both his conviction and sentence.
2 At about 8.40 am on 18 June 1997, two women walking their dogs on a dirt track running off the Beaconsfield-Emerald Road, Upper Beaconsfield, saw a large pool of blood on the track and called the police.
3 The body of the victim was found lying in the bush some distance away from the side of the track. She was dressed in a skirt and top. Her underpants were wrapped around her feet and entwined with a tree branch. All but the top button of the six buttons on the front of her short skirt were undone.
4 The victim had been killed by a single gunshot to the left side of the top of her head, towards the back, at close range. Dr Michael Burke, a Senior Pathologist at the Victorian Institute of Forensic Pathology, testified that the injury was consistent with the right side of her face being against the ground when she was shot. The victim had an abrasion to the left side of her nose, and an injury to her upper lip, caused by the application of blunt force and an injury to the right of her forehead.
5 A fired bullet and a piece of bone were found close to each other on the edge of the pool of blood. The fired bullet was a .357 Magnum solid lead semi-wadcutter bullet with copper plating. A piece of paper with Dandenong Hospital written on it, an unopened packet of Wet Stuff lubricant, an empty Glide Ultra condom packet and a condom (which was out of its packet but not unrolled) were found close to each other and near the pool of blood.
6 The Crown case was that the accused had picked up the girl, and killed her by shooting her in the back of the head. The Crown also contended that he had had unprotected sexual intercourse with her at or close to the place where she was killed. Sexual intercourse had occurred shortly before, during or after the time he had killed her.
7 In establishing that circumstantial case the Crown relied on evidence that:
We now briefly describe the evidence bearing on these matters.
8 According to the evidence of her mother, the deceased girl had been psychologically troubled since the death of her father some years previously. Julie Vine, a psychiatric nurse, gave evidence that Kristy Harty had been admitted to Dandenong Hospital in October 1996 as an involuntary mental health patient. She was discharged in December 1996 on a community treatment order and was receiving anti-psychotic medication. She had a tendency to engage in sexually inappropriate behaviour. She was known to have used cannabis, amphetamines and heroin.
9 On 16 June 1997 the deceased girl telephoned her mother. She was distressed and told her mother she desperately needed $90 because, she said, someone was going to shoot her. Her mother was unable to help her. On the same day she asked her employer for $90, saying she needed it to pay for drugs.
10 The girl's boyfriend, Damien Ricketts, thought that the last time he had seen her was early in the morning of the day she disappeared. He said that on the day she went missing, he was told by a neighbour that he had seen her on the Princes Highway speaking to car drivers. On the same day, several witnesses saw a girl answering the victim's description soliciting motorists on the Princes Highway, Dandenong, and on a number of other roads, including the Emerald-Beaconsfield Road and the Belgrave-Gembrook road. Two witnesses saw her getting into cars with male drivers. The girl was probably last seen when she went to a take-away food shop in Dandenong about 4.30 pm.[1]
11 A receipt found in the applicant's car and signed 'BM Debs' showed that he had purchased an item from the Fountain Gate Service Station on the Princes Highway at Narre Warren at 1.37 pm on 17 June 1997.
12 Dr David Wells, the head of forensic medicine at the Victorian Institute of Forensic Medicine, testified that he had taken swabs from the deceased girl's mouth, perineum, upper and lower vagina and anal canal. He observed no signs of injury to the victim's genital region. Slides produced from those swabs were examined by Nigel Hall, a forensic scientist, who found spermatozoa in the samples taken from the victim's upper and lower vagina, but not on her perineum. Some of these spermatozoa were intact, indicating that they were deposited within 24 hours of her death.
13 In cross-examination, Dr Wells agreed that semen initially coagulates after ejaculation occurs, but that it liquefies within 10 to 20 minutes. It was put to him by defence counsel that, if the victim had had intercourse shortly before her death, spermatozoa would have been found on her perineum and he agreed that would normally occur.
14 In re-examination, Dr Wells said that there were a number of reasons why there might be an absence of semen on the perineum, including that intercourse had not occurred, that there was no ejaculation, or that semen was present but not detected. He said that the effect of gravity was such that semen in its liquefied state would normally flow onto the perineum shortly after intercourse, provided the woman stood up or was in a prone position lying on her back. He said that he would not expect semen to be present on the perineum if the victim had been lying stomach down or face down. In those circumstances, the semen would flow in the opposite direction. He expressed the opinion that if a person lay on their abdomen for some time after intercourse, the likelihood of semen moving on to the perineum would be 'significantly reduced' although he did not know the likelihood of there being no semen found on a perineal swab. As we have said, Ms Harty was shot in the top of her head, towards the back.
15 Dr Morris Odell, a senior forensic physician at the Victorian Institute of Forensic Medicine, also gave evidence relating to the liquefaction of semen within 10 to 30 minutes after intercourse. He said that a possible explanation for the absence of semen from the perineum was that the woman was in a position where the vagina was tilted in such a way as to prevent gravitational flow downwards.
16 He said that the apparent lack of any stain on the crotch of the underpants found around the victim's feet was a strong indication that the underpants had not been worn after intercourse. The presence of semen on the buttock part of the underpants could have occurred from semen dripping, or being wiped, on to them.
17 Mr Hall tested various items of clothing worn by the deceased. He found seminal staining on the inside back panel of her skirt and on the right-hand buttock side of the underpants near the leg band. No seminal staining was found on the crotch of the underpants.
18 The DNA profile of the spermatozoa obtained from the vaginal swabs and the underpants matched the DNA profile extracted from a buccal swab taken from the applicant. No DNA could be extracted from the stain on the skirt. Mr Hall testified that the probability of a match between the DNA profile of the spermatozoa taken from the victim's vagina and her underpants and a man, other than the accused man, selected at random from the Victorian Caucasian population, would be less than one in three hundred and seventy billion.
19 Detective Sergeant John Kearney testified that blood samples were obtained from a number of men who knew the victim, including her boyfriend Damien Ricketts. Each of these individuals was excluded as the source of the spermatozoa found on the vaginal swabs.
20 Richard Smith, a drug and alcohol specialist counsellor at the Dandenong AIDS Support Prevention Unit, testified that the deceased had attended the Unit for some years and routinely collected safe sex packs. She had been counselled on many occasions about safe sex practices. He identified the lubricant and the condom wrapper as consistent with the sorts of items routinely contained in the Unit's safe sex packs and said that the label found at the scene belonged to a safe sex pack of the kind handed out by the Unit. Robert Anderada, a volunteer who worked at the Unit, gave evidence that Glide brand condoms were typically supplied in safe sex packs that he put together.
21 Raymond Evans, who had had sex with the victim on a number of occasions, testified that they had always used condoms, and that the girl generally had packs with Dandenong Hospital written on them. Mr Ricketts said that she obtained condoms from the needle exchange facility in Dandenong or Springvale and she always had a couple of condoms with her.
22 On 11 February 2000, the police recorded a telephone conversation between the applicant and his daughter about possible police searches. The following is an extract from that conversation:
Applicant: Oooh. Robert's goin' to ring me tomorrow night. Oh, fucked if I know. They just can't go and search anyone's place like that can they? Unless they've got a really.
Daughter: Yeh, but what ... [inaudible] ... they're not goin' to find anything.
Applicant: There's nothing at Robert's place but at my mother's place there's stuff in the ground but they won't find it.
Daughter: They wouldn't be looking in the ground, would they?
Applicant: They'll be looking through the place.
Daughter: Yeh, it's right ... [inaudible] ... digging, where ... [inaudible] ... the back.
Applicant: Underneath the house stumps.
Daughter: Huh?
Applicant: Ya know the stumps for the house?
Daughter: Under that?
Applicant: Yeh.
Daughter: How the fuck did you get it under there, must have been digging for days.
Applicant: No, no, I know what to do. Um.
Daughter: They wouldn't look there. That would be the last place they'd look.
Applicant: They're just goin' to look through the house.
Daughter: Yeh.
Applicant: But remember, Bernard's died. He's got a few guns inside the wall.
Daughter: He's got ... [inaudible] ...
Applicant: Yes, they belong to him. And he's got, there's a few hand guns there as well, in, yeh, they belong to me, but.
Daughter: Oh she'll just say they're his.
Applicant: They're his and he's died.
Daughter: Yeah, same as anything that they find, even if they do happen to dig, I don't know it must have been Bernard's, that's it.
Applicant: Mm. Ya fuckin' oath ...
23 Senior Constable Raymond Vincent, a firearms examiner at the Victorian Forensic Science Centre, testified that he had received the bullet found at the edge of the pool of blood close to the deceased's body. He identified it as a .357 Magnum calibre, Winchester-brand, solid lead, semi-wadcutter cartridge with copper plating. The bullet was too damaged to link it to a particular firearm, even if the firearm suspected of firing the bullet was available.
24 On 25 July 2000, approximately three years after the victim was killed, and some six months after the telephone conversation that had been intercepted and recorded, the police searched the applicant's mother's house in Epping, New South Wales. Underneath it they found a white plastic bucket which contained several firearms, one of which was a .357 Magnum calibre Smith & Wesson revolver. The gun was said to be in near-new condition. They also found a rifle and a number of other firearms at the bottom of a wall cavity at the house.
25 In February 1992, a number of handguns were stolen from a gun shop in Springvale. These included a .357 Magnum calibre Smith & Wesson revolver, which had distinctive handgrips made from Mexican wood. Wernfried Klimek, the proprietor of the gun shop, identified the revolver found under the applicant's mother's house as the revolver that had been stolen from his shop. He said that the condition of the firearm when it was stolen was 'perfectly new' though he had used it on firing ranges. In cross-examination, Mr Klimek said that the Smith & Wesson was 'a very popular handgun in the United States'; it was used for target shooting by the Sporting Shooters' Association of Australia and there were a lot of these weapons in circulation. Similarly, he said that a lot of people used semi-wadcutter ammunition for target shooting.
26 Senior Constable Vincent testified that it was possible that the bullet he had previously examined could be fired from the weapon seized at the applicant's mother's house, but he could not be certain that it was the weapon which fired the bullet that was recovered from the crime scene. In cross-examination, he said that the Smith & Wesson was 'a very popular gun', that there were 'a great many of them' in Victoria and New South Wales and, though the cartridge was now out of production, it could in the past have been purchased in most gun shops.
27 In June 2004, approximately seven years after the girl's death, a man and his wife who were living in the premises previously occupied by the applicant's mother found two glass containers buried under the base of a glasshouse in the garden. These containers held ammunition, including 69 .357 Magnum calibre Winchester brand solid lead semi-wadcutter cartridges with copper plating.
28 The essence of the defence case was that, even if the applicant had had unprotected intercourse with the deceased within the 24 hours before her death, there was insufficient evidence to allow the jury to conclude beyond reasonable doubt that he had done so at the crime scene, or that it was he who had killed her.
29 At the trial, counsel for the applicant submitted that the evidence relating to the finding of the Smith & Wesson revolver and the ammunition at the applicant's mother's house was inadmissible because it was simply evidence of propensity. There was no evidence that the gun was the one that had fired the shot. Moreover, it was found a considerable time after the victim had been killed, and a long way from where the murder took place. In the alternative, it was submitted that the prejudicial value of that evidence exceeded its probative value and that the trial judge should therefore exercise his discretion to exclude it.[2]
30 The trial judge held that the evidence regarding the finding of the gun and ammunition was admissible. The Crown was not relying on that evidence to establish guilt as such, but only as part of its more general circumstantial case against the applicant. His Honour held that the evidence of the gun found in July 2000, and the ammunition found in July 2004, was probative. It added to or supported the inference of guilt which the Crown said should be drawn from all the evidence to be led in the case.
31 His Honour also ruled that the prejudicial effect of admitting evidence suggesting that the accused had a propensity to use firearms illegally could be negated by an appropriate direction to the jury, warning them about the limited use they could make of this evidence.
32 In his closing address, defence counsel noted that the Crown had relied heavily on the absence of a seminal stain in the crotch of the girl's underpants to show that she had had sex at the crime scene with the applicant, shortly before she was killed. He argued that the victim might have had sex with the applicant earlier in the day without any semen being found in the crotch of the underpants. There may have been semen present which Mr Hall had not detected. Alternatively, the girl might have had intercourse with the applicant at a place other than the crime scene and put her underpants back the wrong way around, so that the semen stain ended up on the right-hand buttock side of the underpants near the waist band, rather than on the crotch. Or she might have put on black tights which some of the witnesses said she had been wearing earlier in the day, without her underpants. (No black tights were found at the crime scene.) This would explain why there was a seminal stain on the inside of the back of her skirt. Defence counsel also argued that the absence of spermatozoa on her perineum raised a reasonable doubt as to whether she had had intercourse shortly before she was killed.
33 Counsel also relied on the absence of any injury to the girl's genitalia, as an indication that she may not have been killed by a man who had had intercourse with her. It was said that the murderer must have been a frenzied killer and that this was inconsistent with the fact that she had not been injured while having sex.
34 Counsel referred to a number of other hypotheses to explain the girl's death, including the possibility that she had been killed by another male who had had intercourse with her at the crime scene, but who had not produced semen or who had worn a condom which he took away with him.
35 In his closing address, defence counsel submitted that the finding of the gun did not assist the Crown, because there was no evidence that it was the murder weapon, or that the applicant had any connection with it in 1997, when the victim was killed. He argued that the conversation between the applicant and his daughter occurred three years after the killing and might have related to the applicant's other case.
36 This was presumably a reference to the fact that in his jury panel directions, the trial judge told potential jurors that he had taken the unusual step of mentioning to them that the applicant had previously been convicted of the murder of two police officers, as the circumstances of that case had attracted considerable publicity. He directed the jury that the circumstances of that case were completely irrelevant and instructed them that if they could not be completely impartial, they should not serve on the jury. He did so with the agreement of the applicant's counsel, who is, we note, a very experienced trial lawyer.
37 Initially the applicant relied on five grounds of appeal. However at the hearing, he relied on ground 1 only, which was that:
The learned trial judge erred by admitting into evidence the evidence of a gun and/or guns and ammunition that were found at the applicant's mother's property in New South Wales.
38 Counsel for the applicant submitted that the evidence concerning the Smith & Wesson revolver and ammunition should not have been admitted. He submitted that there was nothing to show that the applicant had access to either the gun or the ammunition in 1997. There was no evidence that the applicant had been involved in the armed robbery of the gun shop at which a Smith & Wesson revolver was stolen. It was said that it would have been mere speculation for the jury to have considered whether a gun, which was found in New South Wales three years after the victim was killed, could have been used by the applicant to commit the crime. The same analysis was said to apply a fortiori to ammunition found seven years later.
39 Counsel for the applicant sought to distinguish cases such as Thompson and Wran v R[3] and R v Theos,[4] which held that the rule requiring exclusion of propensity evidence did not require the exclusion of evidence that an accused had been found in possession of a weapon of the same kind as that used in the commission of an offence. He submitted that in cases where evidence of the finding of a weapon[5] similar to that used to commit the crime had been admitted, the accused had been in possession of the weapon at around the time that the crime was committed. In this case, there was no evidence that the applicant had had access to the gun in 1997. Nor was there any link between the gun and ammunition used to kill the girl, and the finding of a revolver and bullets at the applicant's mother's house, some years later.
40 In the alternative, counsel for the applicant submitted that, even if it were assumed that the applicant had been a member of a class of persons who had access to a gun and ammunition of the relevant type, the same could be said of a large number of other people. The jury ought not to have been left to apply their common sense to assess the size of the class of persons who might have had access to a Smith & Wesson revolver or to ammunition of the kind which could be used in a revolver of this calibre.
41 Counsel for the applicant submitted that the Crown could have led evidence to prove how many registered weapons of this type existed. The Crown could also have led evidence as to the number of unregistered .357 Magnum calibre Smith & Wesson revolvers that were at large in the community. If the jury had underestimated the number of people who might have had access to such a gun, they may have given too much weight to the possibility that the applicant was present at the scene of the crime, and had shot the victim. The jury should not have been permitted to speculate on this matter, in the absence of expert evidence indicating the number of registered weapons of the relevant kind.
42 In the further alternative, it was submitted that evidence of the six other weapons that were found under the house with the Smith & Wesson revolver should not have been admitted. A fortiori, it was said that evidence of the finding of the rifle and other weapons in the wall cavity was inadmissible, because these weapons were not of the same kind as those used in the commission of the offence, and the evidence went only to the applicant's propensity to commit crimes involving guns.
43 It was submitted, on behalf of the applicant, that if the jury had accepted the Crown's contention that the applicant had control over the Smith & Wesson revolver, they must also have accepted that he had control over a 'veritable arsenal' of weapons, which would necessarily have created great prejudice against him. Counsel for the applicant relied on Driscoll v R,[6] where it was held that evidence of the appellant's possession of weapons other than a weapon which might have been the murder weapon was inadmissible, because it was not probative of the appellant's guilt and not so 'inextricably interwoven with the admissible evidence that the [admissible evidence] could not be properly presented if the [inadmissible evidence] were excluded'.[7]
44 The Crown submitted that the relevance and admissibility of the evidence relating to the discovery of the Smith & Wesson revolver and the ammunition should not be assessed in isolation from the other evidence upon which the Crown relied. That, of course, included the DNA evidence that the applicant had had intercourse with the victim in the 24 hours before she died. It was submitted that the evidence regarding the revolver and the ammunition was not relied upon for propensity purposes, but as part of the overall matrix of circumstantial evidence which linked the applicant with the crime.
45 The Crown argued that it was not necessary to adduce evidence that there were only a limited number of people who had access to such a gun and ammunition in order to establish the probative value of the finding of that material at the applicant's mother's home. That was a matter that went to the weight to be accorded to that evidence, but not its admissibility.
46 Finally, the Crown argued that its case was not that this particular revolver had necessarily been used to shoot the victim. Rather, the relevance of the discovery of the gun and ammunition arose out of the improbability that a man who had had intercourse with the victim shortly before she died, also had access to a gun and ammunition of the same kind as had been used to shoot the victim. Further, the Crown submitted that his Honour had carefully directed the jury on the limited use which they could make of such evidence and of the requirement to avoid propensity reasoning.
47 His Honour gave comprehensive directions in which he carefully summarised the facts, and explained both the Crown case, and the defence case. He instructed the jury on the approach to be taken in drawing inferences and of the need to be satisfied beyond reasonable doubt of any intermediate facts that were 'indispensable links in a chain of reasoning towards an inference of guilt'.[8]
48 His Honour described the way in which the Crown relied upon the finding of the revolver and the ammunition as follows:
Mr Tinney brought in the evidence of the finding of the weapon under the [accused's] mother's house in Epping New South Wales in 2000 [and] the finding of the ammunition in 2004 by the new occupant of that house. He submitted that evidence is relevant because it showed that the accused may have had access to a weapon of the type and calibre by which the deceased woman was killed, and he pointed to the finding in 2004 of the same type of bullet, the .357 solid lead semi-wad cutter copper coated bullet of the same type that was used to kill the deceased and one of the weapons found under the [accused's] mother's house was a weapon of [the] same calibre as that used to kill the deceased.
49 He alluded to defence counsel's closing remarks about this evidence as follows:
He said the finding of the gun takes you really nowhere because there is no evidence that it had any connection with the accused man in June 97. The conversation on which the Crown relies with his daughter Joanne took place in February 2000. The finding of the weapon was coincidental to this case, it was not related to this case but to the accused's other case and he said, as Mr Vincent said, he could not say that the gun was the gun that fired the bullet, the damaged bullet found at the crime scene, it cannot be said that is the murder weapon.
50 His Honour warned the jury on two separate occasions about the way in which they could use the evidence about the finding of the Smith & Wesson revolver and the ammunition. At the commencement of the trial he said that:
What I want to do is give you directions as to how you must not use that evidence. Now, sometimes this impermissible use is not really conscious, it's almost a subconscious effect so you have to guard against it intruding into your thinking in the following way. If you accept that the gun and the ammunition that was found at the accused's mother's house was linked to the accused in the manner contended for by the Crown, you must not embark on the following reasoning or indeed let yourself subconsciously fall into it by saying, 'Well, the accused man had a gun buried at his mother's house, therefore he's a bad sort of person, he's up to no good and therefore he's the sort of person who is likely to have committed this crime'. When you hear that type of reasoning really articulated that way, you can see how unfair, how impermissible and how illogical it is. That type of reasoning is entirely not permitted by our law. You must not embark on it. I am sure none of you would consciously do so, but it is important to guard against that type of thinking intruding into your reasoning process.
In the same way you will hear evidence, as I understand Mr Tinney to say, that the weapon found at the accused's mother's house had been stolen in about the early 1990s, I think he said 1992. There's no evidence, as I understand it, that the accused man had anything to do with the theft but, in any event, it would be wrong for you to reason, 'Well, the accused man had at his mother's house a stolen gun, therefore he was a bad sort of a person and he is the sort of person likely to have committed this crime'. Again, I am sure none of you would consciously reason that way. Quite clearly, it would be unfair, it would be impermissible and illogical. But, again, you must guard against that type of thought creeping in your reasoning. As I said to you...you judge the facts as an intellectual exercise through the process of good sense, common sense and logic; you do not allow unfair prejudice and that type of irrational process to intrude in.
51 In his final jury directions the learned trial judge reminded the jury of his earlier direction on this matter and continued as follows:
You will recall, as I said, that there was a finding of a .357 Magnum calibre Smith & Wesson revolver under the accused's mother's house in Epping, New South Wales, in July 2000 and the evidence of a finding of a quantity of ammunition in the backyard in July 2004, which included a number of .357 calibre copper-coated solid-lead semi-wadcutter bullets.
The Crown seeks to rely on the finding of that weapon in 2000 and ammunition in 2004 as follows. Firstly, the Crown seeks to link the weapon found at the accused's mother's house and the ammunition later found there; it seeks to link the weapon and the ammunition to the accused by relying on the evidence of the recorded conversation between the accused man and his daughter Joanne in February 2000. ...
It is a matter of fact for you as the jury to determine whether you are satisfied that the evidence links the accused man to the weapon and to the ammunition found at the accused's mother's house in 2004. That, of course, is a question of fact for you. It is what you make of it. If you accept that the accused was referring to the weapon that was found at his mother's house when he spoke with his daughter Joanne in February 2000, then what the Crown says is this. It submits that you should infer from that evidence that on the date on which Kristy Harty was killed, that is, back in June 1997, the accused may have had available to him a weapon of the same type as the weapon which was used to kill Ms Harty. You have heard Mr Tinney address you on evidence. I will summarise the evidence to you in relation to it. You have also heard Mr Dane make submission in response. So, again, it is a matter for you what you make of the evidence. But I need to give you directions, repeat to you the directions I earlier gave to ensure you do not make any impermissible use of that evidence.
As I said to you, and I think it was really after Mr Tinney's opening of the evidence, if I am right three weeks ago, if you accept that the gun and/or ammunition that was found at the accused's mother's house was linked to the accused in the manner contended for by the Crown, you must not - I repeat not - fall into the process of reasoning along the following lines: well, the accused man had a gun buried under his mother's house so he is a bad sort, he is up to no good, so he is the sort of person likely to have committed this crime in this case. Such a method of reasoning quite clearly would be wrong, unfair and not permitted as a matter of law. You must not reason in that manner.
I have probably insulted your intelligence by pointing out that because it is quite clear that that type of reasoning would be unfair and not permissible. But, as I said to you yesterday in relation to the issues of bias and the like, sometimes these thoughts can intrude. Recognise them and if you find yourself thinking along those lines, you just say, 'That is irrelevant, that is out. That is not why the Crown was permitted to put the evidence in. It is not why they called the evidence and I cannot make that type of use of it in deciding this case.' As a judge, it would be wrong for you to use the evidence in that way.
Similarly, we have heard that the gun and maybe the ammunition was stolen from Mr Klimek back in 1992. There is, in fact, no evidence at all that the accused man had anything to do with that theft. But, in any event, you must not fall into any type of reasoning: well, he had somehow or other a connection with a gun that was stolen and with ammunition that may have been stolen, that shows he is a bad sort of person. Again, if you find that sort of thought intruding, that type of reaction, you say, 'That is just out, that is not how I would expect a judge to approach the case. I am a judge, therefore, I do not approach the case that way.'
Feeding from that, you have been given for your assistance a transcript of that conversation between the accused man and his daughter. It is, in fact, Exhibit AM and I marked it for identification. As I said to you at the time, and I repeat now, that document is not evidence in the case at all and that is why it is marked for identification, just to make it part of the court record. It has been given to you to assist you follow the conversation so you can better discern what is said. But ultimately you are the judges of what was said and how it was said.[9]
52 In our opinion, leave to appeal against conviction should be refused.
53 In Thompson and Wran, the appellants had been convicted of breaking, entering and stealing the contents of a safe which had been blown open at its site and of stealing another safe which was found rifled with its door blown off. At the trial, a policeman gave evidence that the 'kit' in their possession could be used for picking the lock of some safes, and that a type of key found among the equipment could have been used to pick the lock of the stolen safe, which had had its door blown off.
54 The High Court upheld the appeal. In their joint judgment, Barwick CJ and Menzies J[10] said that evidence that the appellants had in their possession tools enabling them to pick safe locks should not have been admitted, because it was no more than propensity evidence. By contrast, evidence of possession of equipment which had actually been used, or which was of the same character as equipment which might have been used for commission of the offence (such as gelignite, detonators, wires and batteries), was relevant and admissible, even though it also tended to prove criminal propensity.[11]
55 In Theos, the applicant sought leave to appeal against his conviction for armed robbery of a bank, and theft. The police searched the applicant's house about two years after the robbery and found a single-barrelled shot gun, with a cut-down barrel and butt, hidden behind a loose board in the basement. The central question at the trial was whether the applicant was one of the two men shown on security film robbing the bank. A firearms expert gave evidence at the trial that the bank security film showed a disguised man holding a Bentley Classic model 600 single-barrelled shotgun, which was the same kind of gun as the one found at the applicant's house.
56 Counsel for the applicant submitted that the trial judge should have exercised his discretion to exclude the evidence of the discovery of the shotgun at the applicant's house because its prejudicial effect outweighed its probative value.[12] Tadgell JA said that, subject to the general exclusionary discretion,[13] the evidence as to the finding of the shotgun at the applicant's house was admissible, either as evidence that the particular gun was used in the robbery, or because it was a gun of the same kind as that used in the robbery, and could therefore be added to other circumstantial evidence that the applicant was one of the men involved. His Honour said that:
The argument for the Crown would then be the axiomatic one that, while no one piece of evidence, taken alone, might satisfy the jury beyond reasonable doubt of the applicant's guilt, the evidence in its totality, including that of the seized gun, could do so. This was not a case in which the Crown sought to rely on evidence of similar facts, raising the question whether evidence of propensity might properly be directly or incidentally admitted. That elaborate question has received the detailed attention of the High Court in recent years in cases such as Hoch, Harriman and, most recently, in Pfennig. To the extent that the evidence of the discovery and seizure of the gun revealed any criminal propensity (if it did so at all) it was in my opinion not on that account rendered inadmissible by reason of the exclusionary rule that was under discussion in the three cases last mentioned. The rule is stated in Cross on Evidence thus:
"The prosecution may not adduce evidence of the character or of the misconduct of the accused on other occasions (including the possession of discreditable material) if that evidence shows that the accused had a propensity to commit crime, or crime of a particular kind, or was the sort of person likely to have committed the crime charged, unless the evidence is highly probative of a fact in issue."
The rule had no application in this case because the evidence of the discovery and seizure at the applicant's house of the gun did not in truth reveal the applicant's commission of, or disposition to commit, any offence other than the offences with which he stood charged or, at all events, any offence of the same general character as those offences. In these circumstances there was no room for the application of the exclusionary rule: Harriman per Brennan J; and Cross on Evidence. The evidence relating to the gun was therefore admissible subject to the exercise of the general discretion to exclude evidence whose prejudicial effect outweighed its probative value. There was no application made to the judge on behalf of the applicant for the exercise of any such discretion and, even if there had been, I cannot see why it should have been exercised against the Crown.[14]
57 It was held in Theos that because the Crown case was either that evidence of another witness showed that the gun was the actual one used in the robbery, or that it was the same kind of gun and was therefore circumstantial evidence linking the applicant with the robbery, it was necessary for the trial judge to direct the jury as to the different bases on which the evidence about the finding of the gun could be used.[15]
58 In his separate reasons, Smith AJA held that the evidence of the shotgun exhibit was 'relevant as a piece of circumstantial evidence on the basis that evidence was led that it was found in the premises of the applicant, that he had it in his possession at the time of the robbery, and that it was of a kind that was similar to that used in the robbery'.[16] His Honour said that the trial judge had been entitled to take the view that the risk of the jury inferring that the applicant was a dangerous criminal because he had a shotgun could be dealt with by an appropriate direction.
59 In Festa v R,[17] the majority of the High Court went further than they had done in Thompson and Wran. In that case, the co-accused, Festa and Renton, were convicted of several armed robberies. When Renton's home was searched the police found guns, two of which had been bought four days after the last of the robberies of which they were convicted. The Crown relied on Thompson and Wran in support of the submission that evidence that the accused were in possession of guns similar to the kind that had been used in the robbery was admissible. Counsel for the appellant submitted that it was simply propensity evidence, and therefore inadmissible.
60 Kirby J, with whom Gleeson CJ and Callinan J agreed on this point, considered that the evidence was not simply evidence of propensity, but was admissible because it was evidence of the possession of the 'tools of trade' of bank robbers, which was 'apt for carrying out what were alleged to be a series of robberies linked by a particular and unusual modus operandi'.[18] He also held that evidence that there were items on the premises which could be used for the purposes of disguise was admissible.[19]
Evidence of the Smith & Wesson revolver and the ammunition
61 In this case, counsel for the applicant relied on Smith AJA's reasoning in Theos to support the submission that the evidence of the finding of the weapon and bullets should not have been admitted. In our opinion, that submission should be rejected.
62 The Crown case was not that the gun found under the applicant's mother's house could be identified as that which was used to shoot the victim. It was rather that the applicant may have had access, at the relevant time, to a firearm of the same kind as that used in the killing. As counsel for the Crown said in both his opening and closing address:
The evidence will establish that the accused, some years after the event, had a connection with a firearm that would have been capable of having fired the fatal shot and a connection also with ammunition; that of all of the numerous brands of such ammunition was of exactly the same manufacture and specification as that used to kill the deceased and probably the ammunition had been stolen in 1992. You will hear that the firearm definitely was, but the ammunition, you will be told the person from whom the firearm was stolen - he can't say what and if so what sort of ammunition was stolen or whether any was stolen from him, but this is the type of ammunition that he stocked. So the evidence will establish connection between the accused some years after the event and both that firearm and the ammunition and the prospect that the accused had access to the firearm and ammunition in 1997 when this murder occurred because the firearm had been stolen in 1992 and never recovered.
I need to make it clear to you, I said, that the only way the Crown would seek to have you use that evidence, and it's a matter for you whether you want to use it in this way at all, is as showing that the accused was a person who, because of his proven link with the firearm I have referred to and the ammunition I have referred to, may have had access to such items at the time of the killing. The Crown case does not depend on proof that this was the murder weapon or that the fired bullet came from this particular batch of ammunition, but you may consider that the Crown case is advanced, the Crown case that the accused is the murderer is advanced by the fact that in the case of a killing that had taken place with a certain type of firearm and a very specific type of ammunition, that he's a person who had a connection some years after the event with such a firearm and such ammunition.
63 Thompson and Wran and Theos both support the view that the evidence as to the finding of the Smith & Wesson revolver and the bullets was admissible as evidence that the applicant might have had access to a weapon and to bullets of the same kind as those used in the murder of the victim. We note that in Theos the gun was found hidden in the applicant's house two years after the offence was committed. In our opinion, the Crown was entitled to rely on Mr Klimek's evidence that the gun found under the applicant's mother's house was the one which had been stolen from his shop, to raise an inference that, in 1997 when the victim was killed, the applicant had had access to a gun of the same kind that killed her. We also consider that his Honour was entitled to take the view that the probative value of the evidence of the finding of the Smith & Wesson revolver and the bullets, when considered in combination with the other circumstantial evidence, exceeded its likely prejudicial effect.
64 His Honour's careful warnings against the use of propensity reasoning were a sufficient safeguard against the jury convicting the applicant simply because he was known to have had access to firearms. In addition to giving the jury that warning, his Honour instructed the jury of the need to be satisfied beyond reasonable doubt of facts that were indispensable to the Crown case, including in particular that he had had unprotected sexual intercourse with the victim at the crime scene. His Honour's directions also made it entirely clear that the evidence of the finding of the gun and ammunition at his mother's house was simply one aspect of the circumstantial evidence that formed the basis of the Crown case.
65 The jury heard evidence from both the gun shop proprietor, Mr Klimek, and Sergeant Vincent that there were a great many Smith & Wesson Magnum calibre revolvers in Victoria. Because the Crown case was that an inference of the applicant's guilt could be drawn from the links between a series of different facts, we do not consider it to have been necessary for the Crown to adduce evidence as to the number of people who might have had access to a Smith & Wesson revolver, or the ammunition that could be used in that gun. It was clearly open to the jury to infer that the applicant was aware of the existence of the weapon hidden under his mother's house. That inference could be drawn from the fact that he had said to his daughter that there was 'stuff' underneath the house stumps. The bucket in which the revolver was found was buried very close one such stump. Although the applicant did not specifically refer to material buried under the glasshouse, it was open to the jury to infer a link between the recorded telephone conversation and the applicant's knowledge of the whereabouts of the gun and ammunition.
66 We now turn to the submission that the trial miscarried because evidence was admitted as to the other weapons found at the house. The relevant evidence was Detective Andrew Waterman's statement in-chief that the bucket found under the house contained 'a number of firearms' including the Smith & Wesson revolver, and that the police had also found a rifle and a number of other firearms at the bottom of the wall cavity at the house. Except for this reference, the Crown did not lead any evidence from him (or others present at the search of the mother's house) about the finding of guns other than the Smith & Wesson revolver. Exhibit R at the trial showed photographs of the bucket and where it was hidden, photographs of the contents of the bucket and of the Smith & Wesson revolver and photographs of the wall cavity and the firearms and ammunition found within it.
67 Defence counsel at trial took exception to the admission of evidence of the finding of the Smith & Wesson revolver, though not specifically to the evidence relating to the finding of the other weapons.
68 Some of the photographs were taken to show the location of the Smith & Wesson revolver in the place where it was found, and thus to link the finding of the gun with the telephone call in which the applicant said that there was 'stuff' under his mother's house. That could only be done by showing the Smith & Wesson revolver in situ, along with the other guns in the bucket.
69 In Driscoll, Gibbs J referred to 'the principle of completeness',[20] which may permit evidence not otherwise admissible to be led if it is necessary to enable a jury to understand what has occurred.[21] In our opinion, the evidence of the finding of the guns in the bucket alongside the Smith & Wesson revolver was admissible, on that basis. The finding of the other guns in the bucket hidden under the house was 'inextricably intermingled' with the evidence of the finding of the Smith & Wesson revolver hidden under the house.[22]
70 However, the admission of evidence as to the finding of the guns in the wall cavity cannot be justified on a similar basis. The Crown did not need to lead evidence on this matter, or to tender photographs showing the guns in the wall cavity. As in Driscoll, 'the excision of [those] references would not have affected the sense of what remained or rendered it any the less intelligible',[23] even though the telephone conversation between the applicant and his daughter did refer to the guns in the wall cavity. Such evidence was inadmissible because, like the safe-breaking kit in Thompson and Wran, it was evidence as to propensity only, and had no other relevance or probative value. The situation cannot be equated with that in Festa, because other guns had no relevance to the murder of the victim.[24]
71 In the particular circumstances of this case, however, we do not consider that the admission of this evidence led to any miscarriage of justice. We take that view for three reasons.
72 First, as we have said, there was only one brief, and fleeting, reference at trial to the guns found in the wall cavity. Although counsel for the Crown noted, in his closing address, that the applicant referred to the 'firearms' found at his mother's house in his telephone conversation with his daughter, he specifically confined his comments to the finding of the Smith & Wesson revolver and bullets at the mother's house. He was careful to reinforce the trial judge's direction as to the limited use that could be made of the finding of those items.
73 Any danger that the jury might reason that, because the applicant was a violent criminal with access to guns he was likely to be guilty of the murder, was further reduced by the two strong warnings against propensity reasoning given by the trial judge. His Honour directed his warning to the finding of the Smith & Wesson revolver, presumably because he thought it would be unfair to the accused to highlight the finding of the other guns. Having heard that warning, any reasonable juror would have been aware, as well, of the dangers of propensity reasoning in relation to guns which were not said to be of the same kind as the revolver used in the murder. As counsel for the Crown pointed out on appeal, no exception was taken to the terms of the warning. Nor did counsel for the applicant ask the judge to redirect the jury about the other firearms.
74 Secondly, although defence counsel sought to have the evidence about the finding of the Smith & Wesson revolver and the ammunition excluded, he made no application to have the evidence of the other guns found in the wall cavity excluded.
75 Thirdly, having heard the evidence of the finding of the Smith & Wesson revolver alongside the guns in the bucket, the jury were unlikely to have been prejudiced by the fact that a number of other guns were also located in the house.
76 We would therefore dismiss the application for leave to appeal against conviction.
77 The applicant was sentenced to life imprisonment without a minimum term. He now seeks leave to appeal against that sentence on the basis that it was manifestly excessive, and that the learned sentencing judge should have imposed a minimum term.
78 In his sentencing reasons his Honour referred to the aggravating features of the crime as follows:
Your victim was of tender years. The age difference between you and her was exacerbated by the fact that Ms Harty was a deeply troubled young woman, a fact which would have been obvious to anyone who had even the most fleeting contact with her on that day. Many of the witnesses at your trial gave evidence as to the erratic and bizarre nature of her conduct. Anyone who met her that day would have readily realised she was a person of low intelligence, who was acting in an unstable way, with no instinct for her own safety. Thus, I am satisfied that you well knew that your victim was particularly vulnerable and defenceless. That made her an even more easy prey for you.
At the point at which was murdered, Kristy Harty was totally defenceless. She was alone and isolated on a bush track. The killing took place either at dusk or in the dark. She could not have been more vulnerable and helpless. You shot her from behind immediately after having sexual intercourse with her. Your killing of her was utterly cowardly.
There was no sign of any struggle or disagreement between Ms Harty and yourself before you shot her. There was no evidence at all of anything which could have given you even the slightest reason to contemplate doing her any harm, let alone brutally murdering her as you did. Your murder of Ms Harty was entirely senseless, needless and wanton. The evidence discloses beyond any doubt that this was not a case of a sexual encounter in which, in the heat of the moment, feelings or passions may have led to a spontaneous and irrational act of violence. Rather, and quite to the contrary, this was, most clearly, a callous, craven and senseless murder in cold blood of an entirely innocent, defenceless and vulnerable young woman. The evidence leads to the inevitable conclusion that you murdered Kristy Harty for no other reason than for the sheer sake of it.[25]
79 His Honour alluded to the applicant's convictions for the later murders of Sergeant Gary Silk and Senior Constable Miller. He said that the police murders displayed the same callousness and total disregard for the lives of others as had been apparent in Ms Harty's murder. The sentencing judge said that the applicant had shown no remorse, that despite his family support and good employment record, there was no reason to consider that he could be rehabilitated, and that '[t]he two sets of killings, occurring within almost 12 months of each other, make it clear that [he] would be a grave danger to the community if [he] were ever let at large'.[26] His Honour noted that the applicant was to be sentenced as a serious violent offender under Part 2A of the Sentencing Act 1991 and said that there was a substantial need to protect the community from him for the rest of his life. His Honour also took account of the victim impact statements of Ms Harty's mother and two siblings, which spoke of the traumatic and shattering effect of the murder on them. Finally, he referred to the fact that the applicant had, through his counsel, 'launched an entirely unsubstantiated and groundless attack on the credibility and integrity of the police who were responsible for investigating [the] crime'.[27]
80 Counsel for the applicant conceded that a head term of life imprisonment was open to the learned sentencing judge, but submitted that his Honour had erred by failing to fix a non-parole period. He referred to a number of cases in which an offender convicted of murder had been sentenced to a life term without a non-parole period.[28] He submitted that although the applicant's offending shared some of the characteristics of those murders, his moral culpability was not as extreme.
81 Counsel contended that it was not open to the sentencing judge to find, as his Honour did, that the applicant was 'beyond redemption'.[29] He submitted that the applicant had only limited prior convictions, and that he was only 44 years of age when he committed this crime. He further submitted that a sentence requiring the applicant to spend the rest of his life in prison would be a 'dreadful' punishment.
82 Counsel for the Crown replied by submitting that the cruel and senseless nature of this crime, and the danger that the applicant posed to the community, amply justified the sentence that was imposed.
83 In our opinion, the application for leave to appeal against sentence should be dismissed.
84 It was clearly open to his Honour to decide that a non-parole period should not be fixed. The fact that an offender has been convicted on more than one occasion of murder is, of course, relevant in deciding whether a non-parole period should be fixed.[30] As the sentencing judge observed, this was an appalling crime. The victim was a defenceless young woman who was shot and killed for no apparent reason. The applicant was a mature man, who had a daughter of his own. Ms Harty's family will suffer the life-long effects of knowing that their mentally ill daughter, and sister, died a senseless and humiliating death, simply because she had the misfortune to encounter someone as cruel, vicious and malevolent as the applicant. His Honour was entitled to conclude that the community would be at serious risk if the applicant were ever to be released. His Honour's sentencing reasons were careful and comprehensive, and it is unnecessary to add to them.
[1] A witness said he had seen her at about 6.30 pm, but was not able to recall the date of the sighting.
[2] See R v Christie [1914] AC 545.
[3] [1968] HCA 21; (1968) 117 CLR 313 ('Thompson and Wran').
[4] (1996) 89 A Crim R 486 ('Theos').
[5] In Thompson and Wran, it was equipment used for safe-breaking purposes.
[6] [1977] HCA 43; (1977) 137 CLR 517 ('Driscoll').
[7] Ibid 533 (Gibbs J; Barwick CJ, Mason and Jacobs JJ agreeing; Murphy J dissenting on this issue).
[8] Shepherd v R [1990] HCA 56; (1990) 170 CLR 573, 579 (Dawson J). See also Chamberlain v R (No 2) [1984] HCA 7; (1983) 153 CLR 521 and R v Hillier [2007] HCA 13; (2007) 228 CLR 618. His Honour said that the jury had to be satisfied beyond reasonable doubt that the accused man had had intercourse with the victim at the crime scene at or close to the time she was shot. The Crown had sought to prove that fact by a process of inference and the jury members would need to be satisfied beyond reasonable doubt that that was the only inference available to them. Further, if they considered that the absence of seminal staining on the crotch of the underpants was indispensable to them being satisfied that the accused had had intercourse with the girl at the crime scene around the time she was shot, they would need to be satisfied beyond reasonable doubt that no semen was deposited in the crotch of the underpants after intercourse, and that the only reasonable explanation for that absence was that the girl did not put on her underpants between the time she had intercourse with the accused and the time she was shot.
[10] Thompson and Wran [1968] HCA 21; (1968) 117 CLR 313, 316-317 (McTiernan J agreeing).
[11] For discussion of Thompson and Wran, see Pfennig v R [1995] HCA 7; (1994) 182 CLR 461, 524-5 (McHugh J) and R v Connolly [1991] 2 Qd R 171, 175 (Thomas J). In the latter case, the appeal succeeded because of the admission of evidence as to the possession of three machine guns, which were irrelevant to the alleged offences.
[12] Crimes Act 1958 s 389A.
[13] R v Christie [1914] AC 545.
[14] Theos (1996) A Crim R 486, 492 - 493 (citations omitted).
[15] Tadgell JA held, however, that the application for leave to appeal should be granted because the trial judge did not give adequate jury directions as to the use of evidence of a witness identifying the gun as the actual gun which was used in the robbery: Ibid 495-496; see also 500 (Southwell AJA) and 502 (Smith AJA) on this issue.
[17] [2001] HCA 72; (2001) 208 CLR 593 ('Festa').
[18] Ibid, 649 [187]. See also Callinan J: 670 [260].
[19] McHugh J dissented because possession of guns purchased after the robbery did not throw any light on the probability that the accused had committed any of the robberies and was not inextricably intertwined with other admissible evidence: Ibid, 621 [90]. Hayne J agreed with this view but held that, in light of the other evidence against the appellant, there had been no substantial miscarriage of justice: Ibid, 659 [220]-[221].
[20] [1977] HCA 43; (1977) 137 CLR 517, 533.
[21] See also Festa [2001] HCA 72; (2001) 208 CLR 593, 621 [90], where McHugh J referred to the principle that inadmissible evidence which is 'inextricably connected' with admissible evidence may be admissible on that basis.
[22] Compare R v Tracey & Ors (No 6) [2005] SASC 360, where evidence as to the finding of shot gun shells not used in the murder was held to be relevant and admissible because of a recorded conversation relating to shells and bullets and the finding of discarded shells and bullets. The bullets were linked to two of the accused by finger print evidence.
[23] Driscoll [1977] HCA 43; (1977) 137 CLR 517, 533 (Gibbs J).
[24] Query whether the reasoning in Festa might apply if the Crown case against a person charged with murder was that they were a killer for hire.
[28] R v Camilleri [2001] VSCA 14; (2001) 119 A Crim R 106; R v Lowe [1997] 2 VR 465; R v DJH [1998] VSCA 108; R v Dupas [2001] VSCA 109; R v Coulston [1997] 2 VR 446; Bugmy v R [1990] HCA 18; (1990) 169 CLR 525; R v VZ [1998] VSCA 32; (1998) 7 VR 693.
[30] R v Coulston [1997] 2 VR 446, 463.
R
Debs [2008] VSCA 240
(1968) 117 CLR 313
(1977) 137 CLR 517
(1990) 170 CLR 573
(1983) 153 CLR 521
(2007) 228 CLR 618
(1994) 182 CLR 461
(2001) 208 CLR 593
(1990) 169 CLR 525
(1998) 7 VR 693