R v Demarco [1999] VSCA 69

13. As soon as these applications were called on for hearing, counsel for the applicant announced that he was not pursuing the first ground and so the only grounds pursued were those added by amendment on 4 March. This gave rise to the criticism by counsel for the Crown that the grounds being pursued were but the product of "trawling", by which we understood him to mean subjecting every component of a fairly long and comprehensive charge to the closest scrutiny simply in the hope of finding error. That is not to say that error may not be so discovered and, if genuinely impinging upon the fair trial of the accused, it behoves this Court to correct it. But it must be said that when grounds emerge in this fashion, we should at least consider very carefully what is now said, at a relatively late stage, to be perceived as error for the first time. That it was not so seen at the time of the trial, by those in the best position to perceive error if such it was, should not be lightly put aside.

16. Moreover, the task of charging the jury nowadays has been made very difficult by successive determinations of appellate courts about what should and should not be said. In this jurisdiction, it is easy to become increasingly troubled by the possibility that we are demanding too much of trial judges. Sometimes it seems that we are being invited by counsel to assess the impact of the charge on the jury as though those listening were reading and applying a statute, with the training of lawyers. That of course is far from the case: the jury consists of laymen and they are listening to an exposition of the law perhaps for the first time. That is not to say that the trial judge is absolved from the duty of conveying to the jury, as precisely as he can, what their duty is; far from it. But the impact of the charge will commonly depend more upon its thrust and its general tenor than upon a word here or word there (of which R. v. Saragozza [1984] VicRp 15; [1984] V.R. 187 especially at 196 provides an example). Yet in this instance, we were invited to say that the trial miscarried because of a word which, it was said, was error in line 13 on p.16 of a charge that ran for nearly 250 pages.

19. This was said in relation to added grounds 2 and 3, which were argued together. Those grounds turned on what the judge told the jury in his charge about the lies which the Crown claimed were told by the accused about the shootings. In the end, the error relied upon was said to be in the use of the word "lie" in the expression "you could take such a lie into account as a factor". Though that statement is simple enough, in order to understand the grounds taken the context must be described - and that means describing, as briefly as may be, the circumstances of the alleged offending. Fortunately in what was a lengthy trial with many witnesses the trial judge put matters fully but concisely when sentencing and in what follows we simply adapt his Honour's words.

22. First, the background of the applicant. He grew up in the United States of America and is still a citizen of that country. In 1983 he married Santina Montanaro, his first cousin, whom he met when she visited America at the age of 15. Initially her parents were against the marriage because of the close family relationship, but they ultimately relented and thereafter they were very supportive of the new couple. The first three years of the marriage were spent in Philadelphia but from 1986 onwards the applicant and his wife (who is now his former wife and to whom we shall refer by name, when necessary, simply as "Santina") lived in Australia. After residing for a period of time with the Montanaros, they purchased a house in Diamond Creek utilising the proceeds of a block of land in Watsonia given to them by the parents. The applicant was employed by Mr. Montanaro in his road construction company working principally as a back hoe operator. Following a motor car accident in the late 1980s the applicant was unable to work for a year and in March 1989 underwent spinal surgery fusing three vertebrae. His inability to work led to problems in making the mortgage repayments and ultimately the applicant and his wife sold the Diamond Creek house and in 1988 moved to Ridley Court, East Doncaster, to a property owned by the applicant's parents-in-law but effectively given to him and his wife. The Ridley Court block was subdivided and in December 1994 the Montanaros themselves moved into a house which they had built on the subdivided block.

25. During his period of unemployment the applicant commenced to drink heavily. According to witnesses his drinking capacity was prodigious. He was able to consume a bottle of scotch or a cask of port without exhibiting any real effects. In March 1993 a liver problem stemming from this drinking was diagnosed. He was also taking Panadeine Forte and Valium for pain relief, and anti-inflammatories.

28. Shortly after moving into Ridley Court the applicant acquired a Ruger semi-automatic rifle. He altered it by cutting off the barrel and the stock. The weapon had a magazine capable of holding 27 bullets and was fitted with a telescopic sight. He constructed silencers for the weapon from plastic soft drink bottles which were swathed in bandages or stuffed with such fillings as toilet paper or beanbag beans. He would practice shooting the weapon at a human figure drawn in the garage or would fire it into telephone books. According to Santina in evidence, the applicant would also fire the weapon in the house.

31. Some time later, the applicant acquired an Enfield .303 rifle from his brother-in-law, George Montanaro, but this was confiscated by police in October 1994. The applicant was fined for being in possession of a fire arm without a licence and possessing an unregistered firearm. In late October he temporarily surrendered the Ruger weapon to George Montanaro, but after about a week and a number of phone calls to him seeking its return, the last one which was to the effect that he, the applicant, would fight his brother-in-law, the latter gave the weapon back. The applicant then hid it, fully loaded, in the rafters in the garage so that nobody could find it and confiscate it.

34. Over time the marriage between the applicant and Santina deteriorated and after Mr. and Mrs. Montanaro moved into the Ridley Court premises they also became involved in the applicant's matrimonial difficulties. Their role appears to have been one of conciliation, urging the applicant and his wife to work out your problems. However, in the course of arguments which occurred in the months leading up to 5 April 1995, Santina indicated that she wanted a divorce. She told the court that during these disputes the applicant said that if she left him he would kill her as well as her parents and brothers. Santina also deposed to his saying, "I know a way to beat the system, I always have. I'll take you out and seek psychiatric help, do a couple of years, and take the kids back to the America." These things were said, it appears, in the heat of the moment, during arguments which degenerated into screaming matches.

37. On Sunday 2 April an argument occurred between the applicant and his wife and he followed her to her parents' house. In the ensuing discussion Mr. Montanaro told the applicant that he was the problem in the relationship and that he and Santina should separate. On one version of this conversation Mr. Montanaro offered to give the applicant $60,000 to buy a house close by so that the two of them could work things out from separate houses. But the applicant stormed from the house and later that day there was a further altercation in his own home.

40. Little more need be said about the applicant's relationship with Santina. Santina described him in evidence as being obsessed with her; she said that, quite probably, he did not wish the relationship to cease. The evidence indicated that he regarded the proximity to his parents-in-law as adversely affecting the marriage relationship. Indeed, on Monday the 3rd and Tuesday 4 April the applicant sought to have the property valued with a view to selling it - and an incident that then occurred provides an insight into the applicant's attitude towards his mother-in-law. During an inspection of the house by a real estate agent Mrs. Montanaro appeared and said, "Why don't you tell him how much you have put into this property?" The applicant walked up to his mother-in-law in an aggressive manner and standing chest to chest with her said, "Is this the way it's going to be, always interfering?" He then remarked to the real estate agent: "That's the reason I'm selling, because I'm sick and tired of the fucking interfering mother-in-law."

43. The events leading immediately to the offences commenced on Tuesday 4 April when Santina obtained an intervention order. It was served on the applicant that night. He described being forced to leave the house and not being able to say goodbye to the children as devastating. The police officer who served the order informed the applicant that he was not to be at or within 200 metres of the Ridley Court property except in the company of a police officer, that he was not to possess, carry or use any firearm, and that any firearm in his possession was to be forfeited pending the matter proceeding before a court on 26 April 1995. The applicant denied having any firearm. When the police affirmed that they were intending to enforce the order he said "It's not the police, it's that fat cow over there", referring to Mrs. Montanaro. In his videotaped interview with investigating police the applicant later said that he believed that throwing him out of the matrimonial home was a joint effort between his wife and his mother-in-law.

46. After leaving the premises the applicant spent some hours in a nearby Shell service station where he made phone calls to his mother in America and also to his brother-in-law, George Montanaro, requesting him to come and pick him up. George Montanaro refused. Ultimately the applicant booked into a motel for the night. During the early hours of the morning he consumed some alcohol from the mini bar (although most of the bottles from the mini bar were later found unopened in his car). It seems likely that the applicant took some Valium tablets. He telephoned a number of people, including his father-in-law, Emilio Montanaro. In that phone call the applicant uttered just one word: "Prepari" (get ready).

49. After getting some sleep, at about 10 a.m. on 5 April the applicant rang the Doncaster Police Station, explaining that he had received an intervention order and expressing a wish to go home to pick up the motor car. He was told (and he said he understood) that he could not do so without the police, and it was suggested that he come to the Doncaster Police Station where arrangements would be made for police to go with him.

52. At 10.30 a.m. the applicant rang Mr. Montanaro, telling him he was not happy with what had occurred, but that all he wished to do was go home, pick up some clothes and the car and he would then leave. Mr. Montanaro reinforced what he had already been told by the Doncaster police about the need for police presence. The applicant indicated he would comply with the intervention order.

55. He then travelled from the motel by bus to an area in Doncaster Road where he phoned for a taxi from an amusement parlour. Both the manager of that establishment and the taxi driver who picked him up, described the applicant's demeanour as normal. He entered the taxi at about 11 a.m. and directed the driver to take him to Ridley Court. He alighted from the vehicle some houses past his destination before entering the property on foot and breaking into the house. As fate would have it, at 11.30 a.m. Mr. Montanaro decided to go home for lunch. His wife had been upset in the morning and he wanted to check to see if she was all right. He parked his utility in front of his garage and as soon as he got out he observed the applicant standing in front of his own garage with the door open. He asked the applicant what he was doing there without the police. According to Mr. Montanaro, the applicant told him not to worry about the police, that he would only be five minutes and would get his clothes and car and go. Shortly after this Mrs. Montanaro emerged from her house and a similar conversation occurred. The Montanaros agreed to the course proposed. The applicant told the jury that the conversation was held in modest tones, but the coldness of their voices reinforced in his mind that everybody had turned against him; he became angry and was then in a rage.

58. The applicant re-entered his garage and took the sawn-off semi-automatic rifle from where he had previously hidden it under the back seat of his wife's Magna car. He ran out a side door of his house and across the lawn towards Mrs. Montanaro. She screamed, "He's got a gun" and went inside and slammed the front door. The applicant kicked it open, entered the premises and shot her twice in the head. He then turned the gun towards Mr. Montanaro, who was still in the driveway. It seems probable that the first shot was fired from inside the Montanaros' house and that three further shots were fired from the front garden of the premises at Mr. Montanaro as he fled down the street. Be that as it may, the applicant pursued Mr. Montanaro down the street and further shots were fired. He was hit first in the right buttock. He then commenced to run in a zig-zag fashion but was hit in the right shoulder and on the right side of the head.

61. After the shooting the applicant drove, it appears, to St Andrews. After drinking a pot of beer at the local hotel and playing a game of pool, he drove to the Box Hill Hospital for reasons which are not clear. He there complained of back and chest pains, and hospital staff were later to speak of conduct on his part which was consistent with drug ingestion. Some staff also smelled alcohol. Mr. Montanaro, who had survived the shooting, had been admitted to Box Hill Hospital and the applicant was recognized by relatives in the waiting room and in due course arrested. As he was led to the police van, television crews, which had gathered, filmed his exit. At one point he appeared to collapse as he approached the police van, though whether he was play-acting was a question explored at the trial. Subsequently, a forensic physician found the applicant fit enough to be interviewed by investigating police.

64. The applicant told the police, and told the jury when he gave evidence at the trial, that he remembered nothing from the time of the conversation in the driveway with the Montanaros until driving along the road afterwards and observing a sign indicating Kangaroo Ground (after which he drove to St. Andrews). His defence was that the ingestion of alcohol and drugs, together with the trauma of being evicted from his home, reinforced by his confrontation with his in-laws, was such that, if not acting unconsciously, he never formed any intent to kill or cause really serious bodily injury to either of the Montanaros.

67. The Crown case was that the shooting of the Montanaros was premeditated. Counsel pointed to the prior threats which the applicant had made to Santina about the consequences of a divorce and his plan to feign madness thereafter. Counsel argued that the shooting of the Montanaros and the applicant's subsequent conduct at the Box Hill Hospital was in accordance with this plan. Further, it was put that the telephone call was designed to alert Mr. Montanaro, who thereafter came to the premises. Counsel contended that the accused's professed lack of memory was merely feigned and that to that extent at least his record of interview and his evidence at trial was merely an "acting performance". In his address the prosecutor made a number of references to the applicant's "feigning" or "acting" and thereby dodging "the hard questions". Though the defence was founded on the ingestion of alcohol and drugs, it appears that no one who observed the applicant or spoke to him on the morning of 5 April, including Mr. Montanaro, described him as being affected by alcohol or drugs, and that was at least consistent with the apparent accuracy of his shooting (in part at a weaving target) and his capacity thereafter to drive a motor vehicle from East Doncaster to St Andrews. Indeed, neither the publican at the hotel at St Andrews nor a drinker at that establishment with whom the applicant played pool regarded him as being affected in any way.

70. That is sufficient to set the context in which it was submitted on this application that the trial miscarried because of the judge's treatment in his charge of the use to be made by the jury of the lie told by the applicant, if they accepted the Crown submission that he was indeed lying when he claimed to have no memory of what happened at and about the time of the shootings. Applicant's counsel identified the following as the critical passage in the judge's charge:-

"If you were satisfied that the accused lied about his recollection of the shootings, you could take such a lie into account as a factor, together with such matters as the accused's actions at the scene of the shootings, and evidence of his behaviour before and after that event, in considering such issues as to whether his actions in shooting the Montanaros were conscious and voluntary actions. And further whether those actions were performed with any intention to kill or cause really serious bodily injury to Mrs Montanaro, or with the intention to kill Mr Montanaro."

74. In context it is clear that at that stage the trial judge, in mentioning a possible lie, was dealing with the applicant's claim to have no recollection at all of events at and about the shootings. His Honour was dealing with a defence submission that the jury "could not be satisfied beyond reasonable doubt that the accused was lying about his inability to recall the actual shootings and their immediate aftermath" and was pointing out, in relation to the police interview in particular, that the submission of the Crown was "that such lack of memory was feigned". The applicant's lack of recollection of events surrounding the shootings was total according to both his account to police in his record of interview and his evidence to the jury. Quite properly, the judge dealt with the possibility that the jury was "satisfied that the accused lied about his recollection of the shootings"; for if the jury were satisfied positively that the applicant had lied, then he must have had some recollection of the critical events. That is what the judge was directing that the jury might take into account "as a factor", as he said.

77. Given that the critical issues in this trial were whether the actions of the applicant were conscious and voluntary and whether those actions were performed with the specific intentions identified in the passage we have quoted, and given the claim by the defence that the applicant had no recollection at all of those events, plainly it was relevant to the jury to take into account the fact that he did have such a recollection, once they were satisfied that that was so. It was in that sense that the judge said "you could take such a lie into account as a factor". Indeed, counsel for the applicant conceded, in the course of argument, that had the judge said, instead of "such a lie" the words "that he had a recollection", there could have been no complaint. Yet that is the tenor of what the judge said and, as we apprehend it, that is what he was understood to mean. We infer this last from the fact that there was no exception taken, and indeed, as counsel for the Crown pointed out, no exception taken in the briefest and most explicit terms.

80. The argument for the applicant was not that by the expression "you can take such a lie into account as a factor" the judge was giving some half-hearted and unformed direction about consciousness of guilt. There had been extensive debate about whether consciousness of guilt was relevant to this trial and, in the end, the judge ruled that he would not permit the Crown to rely upon it. As at present advised we are by no means clear that that ruling was not unduly favourable to the applicant; we should have thought that there was at least an argument that, if the applicant was found to be lying about the absence of his recollection, the jury might properly regard that lie as stemming from a consciousness of guilt, given the framework of the trial. However that may be, consciousness of guilt was ruled out before the judge commenced his charge and, as the matter had been dealt with not long before the charge commenced, the ruling must have been present to the mind of counsel during the charge. No doubt that is why no submission was made on this application that by saying "you could take such a lie into account as a factor", the judge was seeking to direct on consciousness of guilt.

83. Instead, applicant's counsel submitted that by these words the judge was directing the jury to do the very thing that has alarmed courts for so long (as he put it) - that is, the judge was telling the jury that they might reason from the applicant's telling the lie that he was guilty of the offences charged. In Broadhurst v. The Queen [1964] A.C. 441 at 457 Lord Devlin, speaking for the Privy Council, referred to the "natural tendency for a jury to think that if an accused is lying it must be because he is guilty" and said that the jury should be warned against any such reasoning. See and compare R. v. Renzella [1997] 2 V.R. 88, R. v. Morgan (unreported, Court of Appeal, 13 August 1996). Suffice it to say that we do not read the charge as telling the jury to reason in that way at all. Broadhurst dealt with what is impermissible reasoning from the fact that the accused has been caught out telling a lie: it is the telling of the lie that is critical, rather than the lie per se. The judge here was dealing with the content of the lie - the lie, that is, that the applicant had no recollection whatever of the critical events. If the jury were satisfied that his claim to have no such recollection was "such a lie", then the fact that he had a recollection could be taken into account "as a factor". There was no error in telling the jury that.

86. In our opinion there is nothing in grounds 2 and 3.

89. Grounds 4 and 5 were argued together, turning as they did on so-called "relationship evidence". The relationship in this instance was between the applicant and his wife or between the applicant and his "in-laws". In addressing on these grounds, counsel identified the evidence upon which he was relying, which he acknowledged was sufficiently summarised by the trial judge in the course of his charge. There, his Honour referred to heavy drinking of alcohol on the part of the applicant; dramatic arguments between the applicant and his wife; the acquiring of the Ruger semi-automatic rifle and its alteration by the applicant; his habit of firing the gun in the matrimonial home using, on occasions, drawn bodies as targets; the applicant's acquisition of a larger rifle; constant fighting between the applicant and his wife; repeated threats to the wife that he would "take you all out", referring to her and her family; the applicant's causing damage to household articles when he was angry; supportive conduct towards the applicant and his wife by her parents; a threat to kill the wife by the applicant should she obtain a divorce; the punching of his wife by the applicant; further implied threats by the applicant to kill his wife; the kicking of his wife by the applicant (in the course of an argument); the taking out by the wife of the intervention order against the applicant, the involvement of the police and other related matters.

92. Applicant's counsel submitted that this evidence, while admissible (indeed, it was received without objection) "also badly reflected upon" the applicant and would have conveyed to the jurors that, because of his conduct detailed in the evidence, he had a propensity to kill. Counsel identified what he said was the relevant part of the charge:

"Evidence has been led in this trial by the Crown about the prior relationship of the accused and his wife, Santina Montanaro. And also of the relationship between the accused and Maria and Emilio Montanaro. This evidence insofar as you accept it, is not introduced for the purpose denigrating Mr Demarco, or in any attempt to show that he was an unpleasant person. The relevance of that evidence is to provide a setting in which the events of 5 April, 1995 occurred and in particular to provide an explanation of what occurred, and to assist you in assessing the issue of the intent of the accused at the time of the shootings."

Though no exception was taken below, counsel submitted that these directions left unclear the admissible and inadmissible uses of the evidence of the relationships between the applicant and his wife and the applicant and the Montanaros. We reject this submission. In our opinion, the directions adequately explained the relevance of the evidence and conveyed the purposes for which it was not to be used.

97. Further significant non-direction occurred, it was contended, inasmuch as these directions did not include a warning to the jurors along these lines:

"If you accept that the accused was a man who had ill-treated his wife over a number of years that does not mean that it's more probable that he intentionally killed or attempted to kill."

In our opinion there is no substance whatsoever in this contention. It is sufficient to say that the approach chosen by the judge was wide enough to encompass the concept of propensity without specifying it, an approach which avoided any prejudice flowing to the applicant.

102. Grounds 4 and 5 therefore fail, like grounds 2 and 3, and the application touching conviction should be dismissed.

106. As for the application for leave to appeal against sentence, the grounds in the applicant's notice were as follows:-

"1. The learned sentencing judge failed to give any, or any sufficient weight to the following relevant circumstances: (a) the shootings were not premeditated; (b) at the time of the shootings the applicant was 'in a state of great emotional turmoil exacerbated, to some extent, by alcohol and drugs'; (c) the applicant had effectively destroyed his relationship with his children, and that was `significant punishment' for him; (d) the applicant's prospects for rehabilitation. 2. In declaring the offences to be `extremely serious', the learned sentencing judge wrongly included in a list of five circumstances leading him to that conclusion, the fact that the applicant has shown absolutely no remorse for his actions. By doing so, he wrongly characterised such a consideration a an aggravating circumstance, being relevant to the seriousness of the offence. 3. The learned sentencing judge erred in finding that the applicant did not show remorse. 4. The learned sentencing judge erred in finding that the applicant had `made a determined and distinct effort to kill two people', and in consequence further erred in failing to order total, or greater concurrence of sentences. 5. The sentence was manifestly excessive."

110. Despite this plethora of grounds, argument became confined to a narrow compass. Applicant's counsel allowed that the individual sentences were within range (although he characterised the sentence on count 1 as being towards the top of the range in the circumstances). He also allowed that some cumulation was warranted. His sole complaint was the length of the non-parole period fixed, which, he submitted, did not sit comfortably with the judge's finding that the applicant had "reasonable" prospects of rehabilitation and His Honour's unwillingness to find that the applicant's criminal conduct was premeditated. The Court had jurisdiction to reduce the non-parole period, he submitted, on the ground of manifest excessiveness. R. v. Krasnov and Shlakht (1995) 125 F.L.R. 120, 82 A.Crim.R. 92. Mr. Ryan submitted that although His Honour did not give reasons specifically for the length of the non-parole period, such reasons were ascertainable from the circumstances. They were that two very serious offences were involved; the judge's finding that the applicant entirely lacked remorse for his conduct, and what counsel described as his Honour's "guarded" and "conditional" finding as to rehabilitation. The last read as follows:-

"Your efforts to educate and gainfully employ yourself within the prison system are commendable and suggest that in the future, if you are able to remain free of alcohol and drug dependence, you have reasonable prospects of rehabilitation."

114. In all the circumstances, in order for the sole submission argued to be upheld it is for the applicant to show that the non-parole period fixed was altogether outside the range of those properly available to the learned judge. We are not persuaded that it was. Prominent among our reasons for this conclusion are matters appropriately mentioned by the learned judge. These include, in addition to the qualified finding as to rehabilitation and the finding that the applicant had shown "absolutely no remorse" for his actions, the findings that the offences were "extremely serious"; that the murder of Mrs. Montanaro occurred by way of a violation of her own home and that the offences were committed in the setting of a breach of an intervention order.

117. Nor, we would add, are we at all persuaded that (to use the words of counsel for the applicant) "the minimum term as a proportion is also out of kilter with the proportion of minimum terms usually fixed." This argument depended very much upon an assertion that, in comparative terms, the non-parole period was "unusually long", and the suggestion was made that the "more usual proportion" was two-thirds. Whether or not such thinking is current at present, we do not think it can be sustained. As pointed out in Krasnov and Shlakht, the fixing of a non-parole period depends upon all of the circumstances of the case. It is very much a matter of discretion. There is no rule, or no "usual" rule, that two-thirds/one-third should be the proportion between the non-parole period and the parole period. Not long ago, when the sentence for murder was not infrequently about 14 years, the non-parole period was 11 or 12 years, and advisedly so. A non-parole period is fixed in order that, if deserving, the applicant may be given a time in the community under the supervision of the parole board, and for a number of reasons that period will not, in the ordinary case, be more than two or three years. Of course there may be circumstances that warrant a longer period, but a period of supervision of two years is not uncommonly regarded, and for good reason, as perhaps the most productive. With shorter sentences, the parole period will of course be shorter; but with sentences for murder, it cannot be surprising to find that the non-parole period is short of the total effective sentence by something like two or three years. It follows that there was nothing "unusually long" about the non-parole period in this case.

120. Accordingly both applications should be dismissed.