R v Dupas [2001] VSCA 109

Sentence - Life sentence imposed - Discretion exercised not to fix a non-parole period - Whether discretion justified in circumstances of the case.

Ms. Kay Robertson, Solicitor for Public Prosecutions

2. On the evening of the 19 April 1999 the body of Nicole Patterson (hereinafter called "the deceased") was discovered by a friend in the front room of the deceased's premises at 21 Harper Street, Northcote. Her friend had called upon the deceased to fulfil a dinner engagement which had been previously arranged. Although the friend could hear music, apparently coming from the radio inside the closed door of the house, she was unable to attract attention by knocking. She was, however, able to gain entry through the front door which was unlocked. When she did so, she saw the body of the deceased lying on the floor of the loungeroom at the front of the house. The friend alerted the police who arrived shortly thereafter.

5. The deceased had been brutally murdered by stabbing. It was later revealed that she had received some 27 stab wounds to her chest and back. There were on her hands and lower arms many "defensive wounds" demonstrating a futile attempt to ward off the killer. Her skirt had been removed and was found in the adjacent bedroom. It had been cut, apparently with a knife. The underwear of the deceased had been pulled down over her ankles, but tests conducted to see whether she had been sexually penetrated, were inconclusive. The deceased's body had been mutilated by her assailant by the severing of each of her breasts from the torso. Randomly distributed over parts of the deceased's body were small pieces of yellow PVC tape. The police found heavy bloodstaining on the floor of the carpet of the loungeroom where the deceased was found, the pattern of the bloodstains indicating that she had been lying on her front before being rolled over to the position where she was found, namely lying on her back. Bloodstains were also found on the bed and sheeting in the adjacent bedroom, and on the handles of the door and drawer knobs in that bedroom. In short, it appeared that the deceased had been slain following a vicious and persistent attack which she had been ultimately unable to repel. Neither the murder weapon nor the severed breasts have been found. Forensic tests at the murder scene failed to disclose any physical or biological material identifying the killer.

8. Although the body of the deceased was not discovered until the early evening of the 19 April 1999, it was the Crown case at the trial of the applicant that the killing had occurred at some stage between 9 o'clock and 9.30 in the morning of that day. Two neighbours of the deceased who lived in Harper Street, but to whom the deceased was not personally known, had heard a woman screaming in the premises at 21 Harper Street at some time between 9 and 9.30 in the morning of the 19 April. Indeed one of those witnesses had heard the woman's voice proclaiming loudly on more than one occasion the words "you f... c...". Efforts to reach the deceased by phone during the course of the day of the 19 April were unsuccessful, including an attempt by her boyfriend at approximately 2.30 p.m. When, finally, the murder scene was revealed there was a tray bearing a spilt pot of coffee and two coffee mugs found on the table in the front room in the vicinity of the body of the deceased.

11. The deceased was an attractive woman who was aged 28 years at the date of her death. She was a qualified psycho-therapist who, for some time, had practised her profession at the Ardoch Youth Foundation which had been formed to assist young drug affected persons to reclaim their places in the workforce. For a time preceding her death, the deceased had sought to enlarge her professional practice by seeking out private clients through advertisements in the local municipal newspaper - the "Northcote Leader". By an advertisement in that newspaper in February 1999, she had advertised counselling services for people suffering from depression. For the purposes of her private practice she used the front room of her premises at 21 Harper Street as her consulting room. During the search of that room following the discovery of the deceased's body, the police had located the appointment book maintained by the deceased which included an entry for 9 a.m. on 19 April. The entry, which was in the deceased's handwriting, disclosed an appointment for "Malcolm" with an attached phone number "0417 037 312". On a separate slip of paper, also located in the room, was a note which recorded, again in the deceased's handwriting, the words "Malcolm, depression". At trial both the deceased's sister and her male friend, Richard Smith, said that, during the weekend immediately preceding the 19 April, the deceased had told them that she had a "new client" on the Monday morning.

14. It was the terms of the appointment in the deceased's appointment book, and more particularly the phone number, which led to the arrest of the applicant at about mid-day on 22 April 1999. Following a search of the applicant's premises at 19 Coane Street, Pascoe Vale, during the afternoon and evening of 22 April, the applicant was charged with the murder of the deceased. The only issue which arose at the applicant's trial, which lasted a little over a week in August 2000, was whether he was the person who was the killer of the deceased. The case made by the Crown against the applicant on this issue was necessarily a circumstantial one but, as I shall point out hereafter, was a very strong circumstantial case. Following a retirement of less than three hours the jury convicted the applicant of the murder of the deceased. The applicant admitted a series of prior convictions of sexual offences against women, involving violence, over a long period of time. After hearing a plea, the learned judge sentenced the applicant to life imprisonment and declined to fix a non-parole period.

17. Initially, the applicant applied for leave to appeal against the sentence only, asserting that the judge was in error in failing to fix a non-parole period. However, and in accordance with leave granted by the Registrar, the applicant later filed a notice applying for leave to appeal against the conviction recorded on the ground that the verdict was unsafe and unsatisfactory. Pursuant to further leave given by the Registrar, the applicant has added a further three grounds to the "conviction application", but I shall stay further reference to those grounds until I have referred in summary form to the nature of the evidence which was led against the applicant and which the jury was entitled to accept.

20. The case made by the Crown against the applicant was, as I have said, a strong one. The mobile phone number, which had been written by the deceased against the name "Malcolm" in her appointment book, quickly led the police to the applicant through an Indian student at the La Trobe University named "Harry", on whose behalf that telephone number had been registered. Harry had given the telephone number to the applicant, by whom he was employed to carry out gardening work at premises in Heidelberg which had recently been purchased by the applicant's partner, Iolanda Cruz.

23. Members of the Homicide Squad apprehended the applicant at an hotel in Thomastown at about mid-day on 22 April 1999. After cautioning and informing him of his rights, they took him to a police car in which, inter alia, they asked him whether he knew Nicole Patterson and whether he knew "anything about her". To each of those questions the applicant replied "No". The police officers noticed on the left side of the applicant's face that he had what appeared to be significant scratch marks. They asked him how he came to suffer those injuries. The applicant replied, according to the police, that he had been struck by a piece of wood which had "come out of the machine" whilst he was woodworking in the shed at his home. The police officers believed that these answers were being recorded on a tape recording device which they had activated in the vehicle. Ultimately it was revealed that the tape recorder had malfunctioned. When the applicant was finally taken back to the Homicide Squad offices it was put to him, during the course of a formal record of interview, that he had given those, or similar, answers to the questions earlier put to him by the police. The applicant declined to make any comment to questions put to him during the course of the formal record of interview. In the exercise of the discretion given to him by s.464H(2) of the Crimes Act 1958 the trial judge permitted the police officers to give evidence of the answers which they had received to their enquiries in the police car.

26. During the afternoon and evening of 22 April a search was carried out by members of the Homicide Squad of the premises at 19 Coane Street, Pascoe Vale, which were occupied at that time by the applicant and his partner, Cruz. The evidence revealed that the premises had been occupied by the applicant and Cruz since approximately January 1998, during the course of which the applicant was unemployed and on work cover benefits as a consequence of a repetitive strain injury at the place of his former employment. In the meantime, according to Cruz, it was her income which was used to fund their expenses and it was she who was using her funds to finance the purchase of the new house in Heidelberg. The applicant had registered a business in the name of "Your Choice Furniture" and spent most of his time in the shed or workshop at Coane Street making items of furniture. Although Cruz owned two cars - a Toyota Hilux 4 wheel drive numbered PDN 394 and a Mitsubishi Lancer numbered RUM 252 (New South Wales) - she frequently travelled to work by train and the applicant had access to each of those vehicles which he was permitted to drive.

29. The search of the house at 19 Coane Street, Pascoe Vale on 22 April was conducted under the command of Senior Sergeant Maher of the Homicide Squad. Senior Constable Huygen was the "crime scene examiner" and Senior Constable Keightly of the Homicide Squad was one of a number of other members of the squad involved in the search. During the course of the search of the premises the police found the following items:

(a) A note attached to the refrigerator in the kitchen bearing the words "phone Harry" together with an advertisement for the La Trobe University Employment Service.

(b) In a plastic bag, which had been discarded into a rubbish bin at the premises, police found a shopping receipt dated 19 April 1999 bearing a time 11.40 a.m. together with scraps of a sheet of newspaper which had been torn into little pieces. When pieced together they disclosed, in the handwriting of the applicant, the following words:

"Nicky, 9 a.m. Monday, Malcolm, 21 Harper Street, Northcote."

On the opposite side of the newspaper, also to be read when pieced together was an inscription of a telephone number "03 9482 3441". This was the home telephone number of the deceased. In the same rubbish bin the police recovered a discarded pair of running shoes.

(c) Under a trough in the laundry the police found a copy of the "Herald Sun" newspaper dated 21 April 1999 reporting the death of the deceased. This paper had been torn across a photograph of the deceased.

(d) On various objects inside and outside the house at Coane Street, the police found various objects which had been reinforced with yellow PVC tape similar in size and characteristics to the pieces which had been found adhering to the deceased's body. Subsequent analysis showed that the tape found at the Coane Street premises was of similar size and characteristics to that found on the deceased's body; but it was tape of a common type.

(e) Although the police had been in the shed adjacent to the house during the course of the afternoon and had taken some photographs of the interior, Senior Constable Keightly had, during the course of the evening at about 10.30 p.m., returned to the shed to make a search of his own. Inside the shed and adjacent to the work bench were a number of cupboards. In the bottom of the left hand cupboard, and behind other material and a yellow box, he recovered a green jacket which was "rolled up" and appeared to have "stains" on it. He unravelled the jacket and found in one of its pockets a balaclava. He also found a plastic bag on a shelf above where he had found the jacket. That plastic bag contained black and white gloves and a number of condoms. Cruz later identified these items. She had told the applicant to take the condoms out of the bedroom in the house when a young child had come to stay. The gloves, she said, were used for gardening purposes. The stains on the jacket which had been recovered by Keightly were later analysed by a forensic biologist and found to be blood stains. Some of the stains were "contact stains" and others were "droplets". They were widely distributed over the jacket and the stains were subjected to DNA analysis by a forensic biologist, Mr. Hall. He prepared a "DNA chart" setting out his results on 14 of the stains. Most of them, he said, were blood stains emanating from the deceased, some were stains of the applicant's blood and others were a mixture of the two. With respect to those which were consistent with the DNA profile of the deceased, he expressed the opinion that the blood was 6.53 billion times more likely to have come from the deceased than any other female of the Victorian caucasian population.

40. Mr. Hall had also conducted an examination of scrapings which had been obtained from beneath the fingernails of the deceased. None of those scrapings revealed any biological material or tissue consistent with having come from the applicant.

43. Dr. Jelbart, from the Victorian Institute of Forensic Medicine, examined the applicant at the Homicide Squad offices on 22 April at about 11.15 p.m. He noticed that the applicant had a bruise on the outer side of the left thigh which appeared to be some days old. He also noticed the scratches on the left hand side of the applicant's face. One of those scratches was about 4.5 centimetres in length and there was a smaller scratch adjacent to the lower end of the larger one. Jelbart said that those scratches appeared to be "some days old" and were consistent with having been made by fingernails moving in a "downwards direction". Jelbart said that he had asked the applicant how he had come to suffer the injury to his face. The applicant, according to Jelbart, said that it had been caused by a piece of wood "flying up from the work bench on which he was working". Jelbart agreed that, at the committal proceedings, he had said that the applicant had told him that the wood had "flown up from a lathe in the shed". It was common ground that there was no lathe in the shed at 19 Coane Street. The scratches on the applicant's face had occurred on the 19 April; that is the day upon which the deceased died. There was evidence to that effect from both Cruz and one O'Brien who was a friend of the applicant and Cruz and who had been camping with the applicant and Cruz at Wilson's Promontory on the preceding weekend - namely 17 and 18 April. Cruz said that she and the applicant had returned home from Wilson's Promontory in the Toyota Hilux 4 wheel drive on the Sunday evening carrying with them some of the camping gear which belonged to O'Brien and his partner. She said that she had gone to work by train at about 7.45 on Monday 19 April and remained at work until approximately 6.30 p.m. when the applicant had picked her up from the railway station. She had then seen the scratches on his face. He told her that he had suffered it in the shed when he had bent down and scratched his face on a piece of wood which was "sticking out". O'Brien said that he had arranged for the applicant to take some of his camping gear back to Melbourne from Wilson's Promontory and had made arrangements to pick it up from the applicant on the Monday morning. He said that he had phoned the applicant at approximately 11.20 a.m. but received no answer. He left a message on the answering machine. The applicant had returned his call at approximately midday and he later went to Coane Street. He also saw the scratches on the applicant's face and was told that it was caused by "a piece of timber".

46. O'Brien gave evidence that he lived in a house in Alphington, and that on 24 February 1999 he had received a visit from the applicant and Cruz during the course of which the applicant and Cruz had discussed purchasing their own home in the Ivanhoe/Heidelberg area. During the course of the conversation, he had given a copy of the local newspaper - the "Northcote Leader" of 24 February 1999 - to the applicant because it contained details of available housing. The copy of the newspaper which he provided to the applicant also contained the details of the advertisement of Nicole Patterson.

49. During the course of the investigation the police obtained records of telephone calls made from the telephone at 19 Coane Street during the period from February until April 1999. Those records disclosed that between the 3 March 1999 and 12 April 1999, 16 calls were made from Coane Street to either the home phone number or the mobile telephone number of Nicole Patterson. All but one of these calls had been made to the home telephone number at 21 Harper Street. The calls had been made at various times of the day. All but three of them were for less than 22 seconds. The three longer calls were as follows:

On the day of the murder, that is 19 April 1999, the earliest phone call recorded as having been made from Coane Street was at 10.51 a.m.

56. It was the Crown case that the applicant had, on the day of the murder, left his premises at Coane Street at approximately 8 a.m. in the brown Mitsubishi Lancer sedan; and had not returned to Coane Street until approximately 10.45 a.m. It was also the Crown case that the applicant was unable to account for his movements during this period. There was some positive evidence that the applicant was in fact absent from Coane Street during this significant period of time; evidence which came not only from the absence of phone calls made from the house, but also from observations made by two witnesses during the critical period. One, Rosetta Pappalardo, was the attendant on the morning of 19 April at the "Roadway Fuel Station" at the corner of Bell Street and Cumberland Road, Pascoe Vale. At 8.13 a.m. the applicant had attended the fuel station and had purchased fuel for the Mitsubishi motor car. The purchase had been charged to the account of "Your Choice Furniture", and the applicant had, at the relevant time, appended his signature to the account. Film from security video cameras operating at the fuel station were tendered in evidence and disclosed the applicant wearing a jacket similar to the one which was later found at Coane Street.

59. Mark Horsley was a young student who, on 19 April, was staying at his grandfather's house at 18 Coane Street which was on the opposite side of the road to the applicant's premises at No.19. Horsley was working at his computer in the front room of his grandfather's house at about 9.30 a.m. when he was alerted to the sound of a car alarm operating intermittently from that time until approximately midday. From the place where he was seated he was able to see partially into the driveway of the applicant's house and could see the rear of the 4 wheel drive vehicle in that driveway. Each time his attention was alerted to the sound of the car alarm he could see the rear tail lights of the 4 wheel drive operating. According to Horsley, there was no other vehicle in the driveway at the time, nor was he conscious of the presence of any person. At about 11.30 a.m. he saw the brown Mitsubishi, driven by the person whom he knew as "Peter", pull into the driveway behind the 4 wheel drive vehicle. He said he was able to see the applicant go into the house and re-emerge some 15 minutes later. Shortly afterwards he saw a white utility arrive at 19 Coane Street. He saw the driver and the applicant go to the 4 wheel drive vehicle where they spent approximately 10 minutes, following which the man in the utility left. Thereafter, according to Horsley, the car alarm ceased to operate. The man who had arrived in the utility was the witness, Sardelis, who worked for an organization which was, inter alia, a "car alarm specialist" and who said he had been called to the premises because of the malfunctioning of the alarm on the 4 wheel drive vehicle owned by Miss Cruz. Sardelis said that he had arrived between 12.30 and 12..45 p.m.

62. The applicant gave evidence in his own defence. In the course of doing so, he accepted many of the circumstances which had been proved by the Crown but gave explanations for them which were calculated to portray them in a light consistent with his innocence. He said that he had made an arrangement, finally consummated on 12 April 1999, to see the deceased about a "gambling problem" with which he had been increasingly afflicted over the period of the preceding 12 months. He agreed that he had obtained the details of the deceased from the local newspaper which he had previously received from O'Brien. He further agreed that he had made a number of phone calls to the deceased's home but had only been able to get through to her on the three occasions to which I have previously referred. He said that he had told the deceased that he had a problem and that he needed help because he thought that his relationship with Cruz would be lost to him once she became aware that he had a gambling problem. He said that on the first occasion upon which he had made contact with the deceased he had not made an appointment. He contacted her again on 12 April 1999 on two separate occasions. He said that the phone call which was recorded at 8.47 a.m., was one in which he spoke with her and made an appointment for 9 a.m. on the following Monday - i.e. 19 April. He said, however, that even as he was making that appointment he was thinking that he "could not go through with it" and that, shortly after the first conversation, he had rung her back to cancel the appointment. He said that he had given the deceased the name of "Malcolm" and a false telephone number because he feared that the deceased might try to make contact with him, thus alerting Cruz to his problem. He said that he kept his contact with the deceased secret from Cruz as a consequence of this fear which he had, so he said, that their relationship would dissolve if she obtained knowledge of his gambling problem. Having cancelled the appointment, he had had nothing further to do with the deceased and it had not been he who had entered her premises on the morning of 19 April. He said that, apart from leaving the house at Coane Street shortly after 8 a.m. on the morning of 19 April to fill the Mitsubishi with petrol at the service station in Bell Street and to buy some milk for his breakfast; and making a short trip to the local supermarket at approximately 11 a.m. to do some shopping, he had been at the premises at Coane Street throughout the morning of 19 April. If the telephone had gone unanswered during that morning, as O'Brien had said, it must have been because he was at the supermarket or in the shed working on the cocktail cabinet that he was constructing. He further said that whilst he was working in the shed he had cleaned out some cupboards and found the runners which the police had found in the bin. He said that the alarm on the 4 wheel drive vehicle had started to "play up" on the preceding evening when they had come home from Wilson's Promontory and it continued to "play up" three or four times during the morning of 19 April. On each occasion, he said it was necessary for him to "juggle with the ignition" to deactivate the alarm. At 10.56 a.m. he had rung Sardelis to come to the house to fix the alarm. He said that the scratches on the left side of the face had happened when he was working "in a low position" by the bench in the shed and had grazed his face against some wood which was jutting out from the side of the bench. He did not tell the police that he had received those scratches when a piece of wood had been thrown out from a machine upon which he was working. Nor did he tell Dr. Jelbart that he had received the scratch when a piece of wood "flew out from a lathe" because there is no lathe in his workshop. He said that he was present when Sardelis came to fix the alarm at approximately midday and, likewise, when O'Brien arrived to pick up his camping gear at about 1 p.m. He remained around the house for the rest of the day until 6.30 p.m. when he went out to pick up Cruz from the railway station. The applicant agreed that the jacket upon which the blood stains had been found was his jacket. However he said that it was in its usual position on the third shelf in the cupboard and was not rolled up on the bottom shelf in the manner in which the police claimed it was when found. Furthermore he said that the balaclava was not in the pocket of the jacket. He said he did not know how the blood stains came to be on the jacket.

65. In cross-examination, the applicant agreed that he had replied "No" when the police had asked him in the car outside the hotel whether he knew the deceased or had had anything to do with her. This was because he did not know her or anything about her save from getting her details from the Leader newspaper, and talking to her over the telephone. He said that he had obtained her mobile phone number from her answering machine and had written her details in his handwriting on a piece of that newspaper. He had put that piece of newspaper with the details on it in his wallet, and forgotten that the piece of paper remained there until he had noticed it on 19 April when he had torn it up and disposed of it in the plastic bag which was found in the rubbish bin. He said there was no reason for the deceased to have continued to believe that he would be coming for an appointment at 9 a.m. on 19 April because, by then, he had cancelled that appointment. He had completely forgotten about the existence of the piece of newspaper with the details of the deceased on it in his wallet and had only disposed of those details because he did not wish Miss Cruz to know about them. He agreed that he had been wearing the jacket when he had attended the service station on the morning of the 19 April but the jacket had no blood stains on it at that time. He expressed the belief that the police had sprinkled the blood on the jacket. Furthermore, he said that he did not buy the copy of the Herald Sun newspaper which was found under the trough in the laundry and again expressed the belief that the police had put it there "to make him look guilty". He said that he had only worn the balaclava a couple of times and that it was never kept in the pocket of the jacket. He said that he had had the jacket for about two years and wore it only occasionally when he was working or when fishing. He said that he had cancelled the appointment on the 12 April with the deceased because he believed that he could "work the problem out for himself".

68. Against the background of that evidence, as I have briefly described it, I now turn to the grounds of application for leave to appeal against conviction. Those grounds, as I have said, are four-fold and are as follows:

1. The verdict of the jury was unsafe and unsatisfactory.

2. The learned judge erred in his directions concerning lies and post offence conduct, and in particular he erred:

(a) in leaving alleged lies to the police as part of the circumstantial case against the applicant and yet in failing to direct the jury in accordance with Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193;

(b) in failing to direct the jury in accordance with Edwards v. R. with respect to other alleged lies and post offence conduct both in and out of court;

(c) alternatively, in failing to direct the jury to the effect that the alleged lies and post offence conduct (both in and out of court) went only to credit and were not to be used as evidence of implied admissions of guilt.

3. The learned judge erred in his directions concerning the evidence given in cross-examination by Dr. Jelbart at the committal proceedings compared with his cross-examination at trial and the applicant's evidence at trial and, in particular, he erred:

(a) in directing the jury that "counsel at the committal was to be taken as acting upon instructions given";

(b) in failing to direct the jury to the effect that they must not reach the conclusion referred to sub-paragraph (a) unless they excluded all innocent explanations for the difference in the cross-examination at the committal.

(a) in admitting into evidence part of an untaped conversation between police and the applicant at the time of his arrest;

(b) in finding that the circumstances were exceptional and justified the reception of the evidence pursuant to s.464H(2) of the Crimes Act 1958.

82. On this appeal the arguments of Mr. Croucher, who appeared for the applicant, were almost entirely confined to ground 2. Although counsel submitted that he relied upon his written submissions with regard to grounds 3 and 4, it would not be doing him an injustice, I think, to say that he did not press those grounds with any vigour. With respect to the complaint in ground 3, counsel conceded that the circumstance to which it referred was of little consequence in the context of the trial and further conceded that, by themselves, grounds 3 and 4 "did not come to much". Ground 1 was not relied upon in the sense in which it was used in M. v. R.[1] but was intended to assert, as counsel submitted, that the trial had miscarried because of what was said to be the "aggregate of errors" referred to in the other grounds.

85. In the form which it takes, ground 2 is unsatisfactorily expressed because of its width. It complains about deficiencies in the directions of the trial judge in respect of what are contended to be lies told both "in and out of court" and other "post offence conduct" which, so it is contended, were capable of amounting to admissions of guilt and thus should have attracted a direction of the type referred to in Edwards v. The Queen (supra). In the course of argument in this Court it first appeared that Mr. Croucher was directing his submissions to the evidence of the applicant's initial responses to the police when he was first apprehended and questioned in the police car outside the hotel on the 22 April. However, in pursuit of sub-paragraph (b) of ground 2, he broadened his submissions to include what he described as the applicant's "post offence conduct" in tearing up the note containing the details of the deceased and disposing of the remnants in the waste paper bin; and also the content of the prosecutor's cross-examination of the applicant and the remarks made in the prosecutor's final address suggesting that the explanations given by the applicant for the circumstances upon which the Crown relied to prove guilt were a tissue of fabrication.

88. In support of his arguments under ground 2, Mr. Croucher submitted that, in respect of the responses initially given by the applicant to the police as to his knowledge of the deceased, the directions given by the learned judge did not go far enough. In particular, counsel referred to a passage in the transcript where his Honour had had a discussion with counsel in the absence of the jury before giving to them directions about the evidence relating to those initial responses and the use which the Crown was making of them. The transcript reveals the following:

His Honour: "The particular problem which I have to consider is whether I say anything in relation to consciousness of guilt. It was not my intention to do so."

Prosecutor: "Your Honour, for my part I did not address about ... ."

His Honour: "I know you didn't ... I have ... a real problem about raising the issue of consciousness of guilt in a circumstantial evidence case as it does have a `boot straps quality' about it. I was going to say to them, with respect to lies, that if they decide ... that the accused did tell any untruths about knowledge of the accused ... that they were simply matters to which they could have regard with the other pieces of evidence as part of that circumstantial matrix."

Prosecutor: "With respect, I entirely agree. It would not advance the case one iota I would have thought."

Defence Counsel: "I agree entirely, your Honour; it's a logical boot straps argument."

Following this exchange, in the course of which his Honour appeared to acquire the consent of both counsel to the course which he proposed to follow, the learned judge went on to direct the jury in the following way:

"I now want to deal with some evidence you have heard to the effect that when the accused was initially approached by the [police] he denied knowing the deceased and denied having had anything to do with her. [The prosecutor] has referred to that evidence which it is said constitutes false denials. In part in this case, the Crown relies upon evidence that the accused made statements at that stage which have been demonstrated to be untrue. In short, it is contended that the making of those false statements were significant in the circumstances of this case. You must remember ... that people may make statements which are untrue in many situations and for a wide variety of motives that are unconnected with any sense of criminal guilt. It may well be that an individual is apprehensive, fearful, inaccurate in recollection, or simply frightened, of being involved in some incident. They may be concerned about what might happen to them if they admit to having any knowledge themselves about a particular occurrence. On occasions, and from an early age, people often resort to a simple denial of any knowledge whatsoever about the matter under consideration. Statements, as I have indicated, can be made in all manner of circumstances. How do you regard the statements attributed to the accused man here if you find they were made. You would take them into account with all of the other evidence of the circumstances involved in this circumstantial case. Do you understand ... ? They simply constitute another part of the circumstances to which you would have, or could have, regard when you are considering, whether looking at the totality of the evidence ..., you are satisfied beyond reasonable doubt of his guilt. You would of course, before you could have regard to any such false denials, have to be satisfied beyond reasonable doubt - first, that the statements attributed to [him] were indeed made by him, and that they were related to a matter of importance with respect to the ... crime."

99. Following these directions there were further discussions between his Honour and counsel in the absence of the jury in the course of which defence counsel said that he was content so far as the directions given had gone, but that they had not fully reflected the evidence of the applicant about the answers given in the car. It appeared to be the concern of defence counsel that, whilst the applicant had admitted that he had responded to the police in the manner in which they had claimed, it was the applicant's evidence that the answers had reflected the true state of his mind in that he did not know the deceased. As defence counsel put it:

"There is no exception to what your Honour said, it's just that other little twist, if it can be called that."

103. His Honour then resumed his directions as follows:

"In the course of my instructions to you I indicated to you the way in which that evidence [i.e. the evidence of the applicant's responses to the police when asked whether he knew the deceased] could be used. Obviously the mere denial of any such knowledge or contact, even in the circumstances of this particular case, could not of itself be regarded as proof of involvement in her death. As I pointed out to you people make such statements because of simple concern ... . But I also instructed you that you would be entitled to have regard to that evidence as an additional circumstance when you are considering the totality of the circumstances which exist in this case."

His Honour then went on to explain what he called the "defence perspective" in relation to the evidence upon which the directions were being given. At the end of those directions no exception was taken to them either by the prosecutor or defence counsel.

108. In support of ground 2(a), Mr. Croucher submitted that, although the prosecutor did not use the words "consciousness of guilt" in his final address, he had nonetheless cross-examined the applicant and addressed the jury in a way which would have led them to regard the responses which the applicant had made to the police as implied admissions of guilt. Accordingly, he submitted that his Honour's directions on this part of the Crown case did not go far enough. His submission was that the judge should have given what he termed a "full Edwards' direction"[2], and have told the jury that they could not use the applicant's denials of knowledge of the deceased unless they were satisfied that they were denials stemming from a consciousness of his guilt of the crime charged. He submitted that a failure to so direct had led to a miscarriage of justice.

111. For my own part I cannot accept that submission. It seems to me to be over-technical and removed from the circumstances of the trial, the issues being fought, and the nature and purpose of the evidence in respect of which the impugned directions were given. The circumstances in which the trial judge, in the interests of fairness, should give a direction in accordance with Edwards v. R. (supra) cannot be confined within, or prescribed by, rigid formulae[3]. Whether such a direction should be given - and in what form - will depend upon a number of factors including the nature of the evidence which is said to require such a direction, the purpose for which it is tendered and the use which the Crown is making of it[4]. In a case such as this one, where the Crown was seeking to establish the applicant's involvement in the crime through the combined force of a series of circumstances which, in the Crown submission, excluded any hypothesis reasonably consistent with innocence, it will not often be the case that any one particular evidential circumstance will, by itself, amount to an implied admission of guilt by the accused of the crime with which he is charged. Whether the evidential circumstance comprises a statement made to the police or some other conduct of the accused, its probative strength will ultimately depend upon the combined force of all the circumstances of which it forms part[5]. In this case the Crown was not relying upon the applicant's initial responses to the police with regard to his knowledge of the deceased as implied admissions of guilt. It is apparent from the exchanges which took place between counsel and the trial judge that the prosecutor was not relying upon them for this purpose; nor did defence counsel wish them to be given any such significance in his Honour's charge. In those circumstances, his Honour was correct, in my view, to tell the jury that those responses could not, by themselves, prove guilt. Rather, as I have said, their probative strength depended upon the view formed by the jury of the combined force of all the circumstances upon which the Crown was relying in the light of the explanations given by the accused for those circumstances. There may be circumstantial cases where the significance of a particular evidential circumstance, and the use being made of it by the Crown, are such that an Edwards-type direction should, in the interests of fairness, be given. R. v. Dat Tuan Nguyen[6] was such a case, as was the case of Edwards v. R. (supra) itself where the suggested lies were being relied upon by the Crown as implied admissions sufficient to corroborate the evidence of the complainant. However, for the reasons which I have already stated, this was not such a case. Neither the prosecutor nor counsel for the applicant went to the jury on the basis that the initial responses made by the applicant to the police - or, indeed, any other evidential circumstance relied upon by the Crown - were or were not (as the case may be) to be regarded as implied admissions of guilt; and, as I have said, neither counsel desired the learned judge to direct the jury on such a basis.

114. It has often been said that a trial judge, one of whose significant functions is to maintain the balance of fairness in the trial, is bound to give the jury so much of the law as is necessary to enable them to properly determine the issues which have arisen during the trial. What those issues are, and what instructions are needed to enable the jury properly to resolve them, will usually be perceived more readily by the trial judge and counsel representing the respective interests of the parties at trial than they will be by an appellate court. Where, as here, counsel for the accused at trial specifically requested the trial judge - and no doubt for good reason - not to give a "consciousness of guilt direction" in respect of particular evidence (as was the case here in respect of the applicant's initial responses to the police as to his knowledge of the deceased), it would, in my opinion, be unusual for an appellate court to conclude that a miscarriage of justice had been occasioned by a failure to give such a direction[7]. That is because the conclusion as to whether a miscarriage of justice has occurred during the trial is something which has to be considered in the light of the manner in which the adversarial system of criminal justice operates[8]. Accordingly, it seems to me that his Honour was right to tell the jury that the applicant's initial responses to the police could not, of themselves, prove the guilt of the applicant but should be merely treated by the jury as part of the combination of evidential circumstances upon which the Crown was relying to prove such guilt. Further, it was sufficient - and in my view favourable to the accused - for his Honour to have directed the jury that there were many reasons why a person in the position of the applicant might have responded to the police in the manner in which he did, and to have further directed them that, before they could use them, they would have to be satisfied beyond reasonable doubt "that they were related to a matter of importance with respect to the ... crime"[9]. To have told the jury, as counsel for the applicant now contends, that those responses could only be used by them if they were satisfied that they stemmed from a realization by the applicant that the truth would implicate him in the crime charged would not only have given to the responses "the bootstraps quality" which they did not deserve but, as trial counsel recognized, would not have advanced the applicant's cause.

117. What I have said in the preceding paragraphs concerning the learned judge's directions in relation to the applicant's initial responses to the police on the day of his apprehension, applies a fortiori to the submissions which have been made in this Court that the trial judge ought to have given an Edwards-type direction in respect of what was called "post offence conduct" and other aspects of the applicant's evidence which the prosecutor invited the jury to treat as false. These submissions were advanced, as I understand them, under the broadly framed sub-paragraph (b) of ground 2. Thus it was submitted that the fact that the applicant had shredded the sheet of newspaper upon which he had recorded the details of his appointment with the deceased, combined with the submission made by the prosecutor to the jury that the applicant had done so to "distance himself from the deceased", was, in essence, an invitation to the jury to treat such conduct as an admission of guilt. In similar vein, it was submitted that the prosecutor's suggestions in cross-examination of the applicant and his submissions in final address to the effect that the applicant was lying about his cancellation of the appointment with the deceased, about his movements on the morning of 19 April, about his reasons for disposing of the "runners", and in respect of the provenance of the scratches on his face, should all have attracted directions in the form of Edwards v. R. (supra).

120. Again, in my view, there is no merit in these submissions. In the first place, a distinction needs to be drawn between the evidence - conceded by the applicant - of the shredding and disposal of the newspaper containing details of the appointment and the manner in which the prosecutor, whether in cross-examination or in final submissions, dealt with the applicant's sworn explanations for the evidential circumstances upon which the Crown relied to prove guilt. The shredding and disposal of the "appointment details" was simply one of a number of evidential circumstances (similar to the applicant's initial responses to the police) upon the combined force of which the Crown relied to prove guilt. These circumstances, as I have already sought to demonstrate, were not tendered or relied upon as individual admissions of guilt but as behaviour which, when combined with other circumstances, was consistent only with the behaviour of a guilty man[10]. Again, no direction in accordance with Edwards (supra) was asked for and, having regard to the nature of the evidence and the use made of it, such a direction would not have been appropriate. In a case such as this, where the Crown is relying upon the combined force of a number of circumstances to prove guilt, it is not the law that in respect of each such circumstance the jury must be given a "consciousness of guilt direction". There may be, as I have said, cases where the nature of a particular piece of evidence and the use being made of it by the Crown will warrant such a direction if the judge perceives that it may be misused by the jury. This, however, was not such a case and the parties did not contend that it was. The judge correctly told the jury that they could only convict the accused if the combined force of the circumstances relied upon by the Crown excluded all reasonable hypotheses consistent with the applicant's innocence. There was nothing about the applicant's disposal of the appointment details which he had made with the deceased which elevated it to a significance above and beyond any other circumstance upon which the Crown relied. A direction in respect of this particular circumstance of an Edwards-type nature would not only have distracted the jury from the task which it was being asked to perform but clearly would not have assisted the applicant's cause. That, no doubt, was the reason why no exception was taken by the applicant's trial counsel to what seems to me to have been a full and fair charge given by this experienced trial judge.

123. Similarly, there is no merit, in my view, in the submission that the cross-examination by the prosecutor of the applicant, combined with his final submissions to the jury, amounted to "closet invitations" to the jury to treat the applicant's explanations as lies evidencing a consciousness of guilt. Such a submission, in my opinion, pushes the authority of Edwards v. R. (supra) beyond its proper limits. It is true that the prosecutor submitted that the applicant's explanations given in evidence were not to be believed and were designed to "weave their way" through established circumstances which the applicant could not deny. But that is common-place in criminal trials where an accused gives evidence and is no more than an invitation to treat the accused person as a witness lacking in credibility. Indeed this was the way in which the prosecutor invited the jury to treat the applicant's evidence and was the way in which his Honour directed the jury to approach it. It can be assumed, having regard to the fact that the applicant's trial counsel took no exceptions to the charge, that he, too, regarded the prosecutor's submissions as an attack upon the applicant's credit. In truth, the cross-examination of witnesses (including an accused) and submissions made by counsel in cases which are based upon circumstantial evidence are designed to assist the jury in evaluating the probative strength of the evidential circumstances relied upon by the Crown so that, at the end of the day, they can determine the ultimate issue as to whether the combined force of those circumstances, proved to their satisfaction, is sufficient to exclude beyond reasonable doubt all hypotheses consistent with innocence. In the light of his Honour's directions to the jury, there can be no basis for a submission that they would have treated the prosecutor's attack upon the applicant's evidence as anything other than an attack upon his credit. His Honour told the jury that:

"The duty of counsel at the bar table is to present the case for the party for whom that counsel appears. Each has tested the case advanced on behalf of the other side and each has presented his own case. Counsel have placed arguments before you in support of their respective cases and in that way have attempted to assist you to understand the evidence and to identify the issues that have arisen between the prosecution and the accused man. Through the process of challenges, which are integral to the adversary system employed in these courts, hopefully their activity will assist you in coming to a decision about the facts ... ."

His Honour then gave very full directions about the jury's task in a case based on circumstantial evidence concluding with the statement that they must "never forget that the circumstances relied upon by the Crown for an inference of guilt must exclude any reasonable hypothesis or explanation consistent with the innocence of the accused man". He then went through the circumstances relied upon by the Crown and the applicant's explanation for each such circumstance and "married in" the submissions made by the prosecutor and defence counsel relating to the weight which each contended should be given to the evidence by the jury. In accordance with the way in which the case had unfolded, the jury were directed to look at the whole of the evidence and were not instructed to consider any piece of it in isolation or any explanation given in respect of such evidence by the applicant as demonstrating a consciousness of guilt. The directions so given were in accordance with directions traditionally given in cases of this sort. Directions of the kind contended for here by counsel for the applicant would have been quite inappropriate and have needlessly distracted the jury from the task which they had been properly set.

128. For the reasons given I would reject ground 2 of the grounds of the application. Because sub-paragraph (c) of that ground is framed in the alternative and the matters to which it refers are subsumed in the comments which I have made about sub-paragraphs (a) and (b) of the ground, there is no need to further refer to it.

132. As I have previously noted these grounds were not strenuously argued. There is, in my view, no merit in either of them. Ground 3, in substance, asserts that his Honour was in error in telling the jury that it was the Crown submission that the cross-examination of Dr. Jelbart about the provenance of the scratches on the applicant's face was different from the way in which the matter had been put on behalf of the applicant during the course of the committal proceedings. Having referred to the suggested differences, his Honour said:

"Also, of course, that passage raises a slightly different aspect, but a related notion. Counsel at the committal hearing was to be taken as acting upon the instructions which he is given. What was put to Dr. Jelbart as being what the accused said to him must be taken to be properly and appropriately put to him, and, of course, if you consider that there is a difference in that position from what occurred at that time to what is occurring now in the court, you can have regard to that in determining whether you accept what is currently being presented before you for consideration. ... I should imagine that there would be none of us who would not have had the experience of somebody [telling] you something on one day and giving you a slightly different version on another day, and you are never quite sure which is the correct one. But in this case the evidence which you have before you is the one which is given here and you determine whether you accept that, whether you regard that as reliable and accurate, and in doing so you can have regard to variations in that version from what may have been said at some earlier point in time."

Counsel submitted that, although such an inference (that is, as to different versions) was open, the judge should have gone on to tell the jury that they should not draw any such inference unless they excluded all other possible explanations for the difference in versions put. In support of what seems to me to be a rather extreme submission, counsel referred to authorities such as R. v. Manunta[11] and R. v. McLachlan[12]. Those authorities do not, in my view, support the thrust of the submission being made in this appeal. Each of those cases dealt with a matter different from that with which this ground of appeal is concerned; namely the sufficiency of directions as to what inference could be drawn where an accused had given evidence about material matters when no cross-examination had been directed to Crown witnesses about those matters. In each case the court had remarked that there may be "many explanations for the omission which do not reflect upon the credibility of the witness". In Manunta (supra), King, C.J. said that:

"... Where a possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned."

138. Nevertheless, the Chief Justice went on to say that the manner in which such matters should be brought to the attention of the jury are "matters for the decision of the trial judge in the atmosphere of the trial". By analogy, it was argued here that the judge should have told the jury that there were factors which may have explained the differences in cross-examination of Dr. Jelbart at the committal proceedings and at trial consistent with the credibility of the applicant. However, neither of the authorities to which the applicant has referred goes so far as to suggest that the judge is bound to tell the jury that they should not draw any inference unfavourable to the accused unless they have excluded "all other possible inferences". As his Honour's directions indicate, he told the jury in this case that the "differences" in the versions put was slight and that it was a matter for the jury to determine what weight should be attributed to the difference "if [they] consider[ed] there [was] a difference". Furthermore, as I have noted, his Honour also told the jury that it is common experience for people to give slightly different versions at different times about the same subject matter. This was not a matter of any significance within this trial, and the suggested differences between what was put to Dr. Jelbart at the committal proceedings and what was put to him at the trial were so slight as to render the direction given by his Honour a perfectly adequate direction and, in my view, it cannot be said that any miscarriage flowed from it. I would, accordingly, reject ground 3.

141. Ground 4 stems from the exercise of the judge's discretion to admit the evidence of the conversation between the police officers and the applicant which had occurred in the police car following the applicant's arrest at the hotel on 22 April. It will be recalled that, during this conversation which the officers had unsuccessfully attempted to capture on a tape recorder, the applicant was alleged to have denied knowledge of the deceased and of having had anything to do with her; and was also alleged to have told the police that the scratches on the left hand side of his face had been caused by a piece of wood which "came out of the machine" upon which he had been wood-working in the shed. These answers were alleged to have been given following a caution in customary form given by the police officers to the applicant and after they had informed him of his rights in accordance with s.464C of the Crimes Act. Because the tape-recorder had malfunctioned, the police had subsequently, when seeking to formally conduct a record of interview with the applicant, sought to have him confirm the substance of the answers which had been given to them in the police car. This, however, was unproductive because the applicant had declined to comment during the course of that subsequent interview.

144. In submissions made to the judge, the applicant's trial counsel had conceded that the Crown should be entitled to lead evidence of the applicant's responses made in the police car in which he had denied knowledge of the deceased or having had anything to do with her. It was conceded that the police had attempted to record the conversation on tape and that the recorder had malfunctioned. However, counsel had objected to the Crown leading evidence of that part of the conversation relating to the provenance of the "scratch marks" because, so it was contended, there was a difference between the answers alleged to have been given and the terms in which confirmation of those answers had been subsequently sought. No request had been made by counsel to examine the officers on the "voire-dire" and submissions on the topic were brief. The Crown submitted that the police officers should be permitted to lead evidence of the entire conversation and that the judge should, in the circumstances, allow that to be done in the exercise of the discretion given to him by s.464H(2) of the Crimes Act[13]. In accordance with considered reasons, his Honour allowed the Crown to call the evidence of what the police officers claimed the applicant had told them as to the cause of the "scratch marks".

147. Section 464H of the Crimes Act prescribes the circumstances in which "a confession or admission made to an investigating official" may be admitted into evidence. The terms and meaning of the section, which is part of sub-division (30A) of Division 1 of Part III of the Crimes Act, have been exhaustively considered by the High Court in Pollard v. R.[14] and Heatherington v. R. (supra). Insofar as relevant, s.464H is in the following form:

"(1) Subject to sub-section (2), evidence of a confession or admission made to an investigating official by a person who - (a) was suspected; or (b) ought reasonably to have been suspected - of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless - (c) if the confession or admission was made before the commencement of questioning, the confession or admission was tape-recorded, or the substance of the confession or admission was confirmed by the person and the confirmation was tape-recorded; or (d) if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was tape-recorded; or (e) if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the question and anything said by the person was tape-recorded, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was tape-recorded; ... and the tape-recording or video-recording is available to be tendered in evidence. (2) A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub-section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances - (a) are exceptional; and (b) justify the reception of the evidence. ... ."

151. At the trial, the submissions by both counsel appear to have proceeded on the basis that the police officers had endeavoured to record the responses of the applicant on the tape-recorder in the car and had been inadvertently and unintentionally unable to do so. The Crown submitted that these circumstances were such as to enliven the discretion pursuant to sub-s.(2) because, but for the fact that the tape-recorder had malfunctioned, the evidence would have been admissible - having regard to the concessions made - pursuant to paragraphs (d) and/or (e) of sub-s.(1). In determining to exercise his discretion to admit the evidence pursuant to s.464H(2), his Honour said that it was not disputed that the police had endeavoured to record the answers of the applicant on a tape-recorder which had malfunctioned; and that they had been unable to have the applicant confirm those answers in the formal record of interview conducted thereafter because he had declined to comment. In so determining to admit the evidence pursuant to s.464H(2) his Honour said:

"No argument has been advanced, nor does any appear to be reasonably open in the circumstances, that there was any kind of trick involved or pretence engaged in by (the police), or that the police members had any expectation or suspicion that the machine might not operate in a normal manner. In other words, it is both undisputed and obvious that the failure to comply with the provisions was purely accidental and unintended ... . This is not a case which raises any suspicion whatever concerning the actions of the members concerned. The evidence obviously possesses relevance in the context of the present trial. I can see no justification based upon the notion of the balance of probative value and prejudice which would justify the raising of any concerns at that level. I consider that the circumstances can be properly regarded as exceptional within the meaning of s.464H(2) and I am of the view that on the balance of probabilities, the circumstances justify the reception of the evidence concerned."

155. In my view, no fault can be found in the reasons given by his Honour for exercising the discretion in the manner which he did. As I understand the written submissions of Mr. Croucher, his Honour's discretion miscarried because the circumstances were not "exceptional" especially because paragraph (e) of sub-s.(1) of s.464H, upon which the judge appeared to have relied, was not applicable. The latter submissions were not made to his Honour and, in my view, are without merit. If the tape-recorder which the police thought was recording the conversation had worked, the record of that conversation - subject to the judge's residual discretion - would have been admissible pursuant to either s.464H(1)(d) or (e). If the police car was a place where, because of the tape-recorder, facilities were available to conduct the interview, the tape-recording could have been admitted into evidence pursuant to paragraph (d) if the tape-recording had been available; if the police car was not such a place, but the questioning had in fact been recorded, then the record would have been likewise admissible under paragraph (e)[15]. The fact that a taped record was not available because the machine malfunctioned unbeknown to the police enlivened the court's discretion under sub-s.(2) and, in my view, provided the "exceptional circumstances" which his Honour was satisfied existed. As I have said, I can find no error in the reasons given by his Honour, and accordingly this ground must be rejected.

159. It follows that in my view none of the grounds relied upon by the applicant in support of his application for leave to appeal against conviction has been made out. Accordingly, the "unsafe and unsatisfactory ground" (ground 1), which depended upon the success of the other grounds, has also not been made out. However, and in any event, even if I had been of the view that there was a mis-direction in respect of one or more of the grounds raised, I would have agreed with the submission put by the respondent that this is a case where the proviso to s.568(1) of the Crimes Act should be applied. This was, in my view, a case where the evidence against the applicant was so overwhelming as to lead me to the satisfaction that no actual miscarriage of justice has occurred in the sense that the applicant has thereby lost a chance that was fairly open to him of being acquitted (Mraz v. R.[16]; Wilde v. R.[17]). On the undisputed evidence in this case it was clear that the deceased was killed by a person whom she was expecting and, according to her appointment book, was expecting a person described as "Malcolm", being the fictitious name used by the applicant. The jury must have rejected the applicant's explanation that he had cancelled the appointment, a conclusion unaffected by any of the deficiencies in the charge relied upon in this Court, and, in any event, consistent with the details in the deceased's "appointment book" and the evidence given by her sister and boy-friend. More significantly, it was not disputed that the deceased's blood was found on the applicant's jacket which he conceded he was wearing on that day. The jury must have rejected the proposition mounted on the applicant's behalf that the blood of the deceased was placed on that jacket by the police, again a matter which was not the subject of any of the deficiencies in the charge raised in this Court. It was not disputed that the applicant was wearing that jacket on the morning of the 19 April and, once the jury had concluded that her blood was on that jacket otherwise than through outside interference, it was inevitable that they would conclude that he was her assailant.

163. Again, it was not strenuously contended on this appeal that the sentence imposed by his Honour was inappropriate. Counsel for the applicant was content to adopt the outline of written submissions. It was not suggested that his Honour was in error in imposing the maximum sentence of life imprisonment. The only ground was that his Honour should have fixed a non-parole period. In this respect, it is significant to note that the applicant was, at the date of trial, 47 years of age. S.11, sub-section (1) of the Sentencing Act 1991 provides:

"If a court sentences an offender to be imprisoned in respect of an offence for - (a) the term of his or her natural life ... the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate."

167. The trial judge considered that it would be inappropriate, having regard to the nature of the offence and the applicant's antecedents, to fix a non-parole period. He said:

"When regard is had to the seriousness of the crime which you committed and the other sentencing considerations to which I have adverted, including your high level of culpability, the nature of the offence ... the need to protect the community from the risk which you will continue to present for the foreseeable future, the total lack of remorse and absence of any significant prospect of rehabilitation, only one course can be seen sensibly to remain. You must as a consequence of the terrible crime which has brought you before this court be removed permanently from the society upon whose female members you have preyed for over 30 years. I do not consider that it would be appropriate to fix a minimum term in your case."

171. In fixing such a sentence, his Honour had taken into consideration the submission made by the Crown that it was, in the circumstances, the only sentence which could sensibly be passed, and the submission made by trial counsel for the applicant in which it had been conceded that a head sentence of "life imprisonment" was the only appropriate head sentence but that the court should fix a non-parole period although "an extremely lengthy one".

174. Mr. Croucher has submitted that it is exceptionally rare to decline to fix non-parole periods in this State, even for murders involving multiple killings. He contended that cases such as R. v. Coulston[18] and R. v. Camilleri[19] were "far more serious examples" than the present case. He submitted that those cases involved multiple killings and that there have been other very serious examples of multiple killings where the court has fixed a non-parole period[20]. The submission made to this Court was that this was a single killing by the applicant who, at the time of sentence, was 47 years of age and that "a whole of life sentence" was an extremely onerous one which could not, and should not, have been imposed in the proper exercise of a trial judge's discretion. It was submitted that, even though his prospects of rehabilitation "must be regarded as bleak in the short to medium term" a non-parole period should have been fixed that would ensure that he would not be eligible for release "until he is a very old man". The fixing of such a non-parole period, so it was submitted, was appropriate in the circumstances of this applicant who was likely to serve the entirety of his sentence in "protection". It was submitted that factors such as these must have been under-estimated by his Honour because the likely effect of the sentence imposed would be that he will spend something in the vicinity of 40 years in custody without any incentive for reform.

177. For my own part, I can find no error in the exercise of his Honour's sentencing discretion. It is pointless, I think, to compare degrees of gravity between crimes like this one of gross inhumanity. It suffices to say that this was a brutal and callous crime committed against a carefully selected target in the sanctuary of her own home. The mutilation of the victim's body, and the manner in which it was accomplished, demonstrated the applicant's utter contempt for his victim and for those who loved her and cherished her memory. It was a crime which was carefully planned and the nature and number of the phone calls made to the victim's home prior to the commission of the offence suggest that the applicant was "staking out" the movements of his intended victim and the fact that she would be alone in her home at the time which the applicant had appointed for the commission of the crime. Furthermore, the antecedents of the applicant, when combined with the nature of the crime, amply warranted, to my mind, the view formed by his Honour that the fixing of a non-parole period would be inappropriate. Those antecedents demonstrate, as his Honour noted, that the applicant has "an appalling criminal history" which has involved repeated acts of sexual violence against women extending over a period of approximately 30 years. That criminal history, admitted by the applicant, revealed 16 prior convictions involving 6 court appearances between 27 March 1972 and 11 November 1994. Those convictions included convictions for rape of women in their own homes, assault with intent to rape and malicious wounding, aggravated rape and false imprisonment. They had brought with them terms of imprisonment of 9 years in 1974, 6½ years in 1980, 12 years in 1985 and 3 years and 9 months in 1994. The trial judge appended to his sentencing remarks the remarks of three of the judges who had previously sentenced the applicant. Those remarks demonstrate the capacity of the applicant to select female targets, to worm his way into their confidence, to gain access to their homes and, having done so, to violently sexually assault them, generally with the aid of a knife. That criminal history justified, in my view, the trial judge's comment that the applicant, at the age of 47 years, still had "a deeply entrenched desire to engage in sexually violent behaviour". Indeed the behaviour had commenced in 1964, when the applicant was only 14 years of age, at which time he entered the house of a female neighbour and attacked and wounded her with a knife. That matter was dealt with in the Children's Court and, because of legislation, did not form part of his recorded criminal history. The fact is that the applicant has spent, because of the convictions and sentences to which I have referred, most of his adult life in confinement. However, the danger which he presents to the community (as the trial judge said) is due in part to his innate intelligence and his capacity to pass himself off to female members of the community as a "decent man". Indeed his Honour had before him a victim impact statement from Miss Cruz, who was living with the applicant at the time of this crime, in which she complained that she, too, had been the victim of the applicant, his family and friends as a consequence of their "hiding Peter's horrendous criminal past from me". As she said:

"My belief that I was a good judge of character has been destroyed because I have been completely fooled by a monster into believing that he was a caring and gentle man."

This "Jekyll and Hyde" personality of the applicant reflects, in his Honour's words "an ability to exercise a considerable degree of control over your underlying impulses which were then released when you considered that it was safe to do so and they emphasise your resistance to any rehabilitation endeavour".

182. After considering the matters to which I have referred, his Honour concluded his sentencing remarks in this case by making the comments to which I have referred in [41].

185. In the light of the material which was before his Honour it is my opinion that the findings which he made and the conclusion to which he came were amply warranted. This was "a terrible crime" in the sense that it was a crime of very great heinousness unattended by any factors of mitigation. In that sense it falls within the "worst category" of offences of murder in the sense in which that term was used by Hunt, C.J. at C.L. in R. v. Kalajzich[21]. Having regard to the nature of the offence and the past history of the applicant to which I have referred, it seems to me to have been well open to his Honour to have imposed the sentence which he did. I would, accordingly, dismiss the application for leave to appeal against sentence.

189. I agree that these applications should both be dismissed for the reasons given by the President.

[1] [1994] HCA 63; (1994) 181 C.L.R. 487.

[2] Edwards v. R. [1993] HCA 63; (1993) 178 C.L.R. 193.

[3] cf. Zoneff v. R. (2000) 200 C.L.R. 234 at 244; R. v. Andrea Morgan (unreported, Court of Appeal, 13 August 1996 per Hayne, J.A. at p.6).

[4] R. v. Andrea Morgan, supra, at p.6; R. v. Nguyen [2001] VSCA 1 at [18] and [20].

[5] R. v. Bogunovic [1999] VSCA 133 at [39].

[6] [2001] VSCA 1.

[7] cf. Osland v. R. [1998] HCA 75; (1998) 197 C.L.R. 316 at 334 per Gaudron and Gummow, JJ., per Callinan, J. at 412.

[8] cf. per Gleeson, C.J. R. v. Birks (1999) 19 N.S.W.L.R. 677 at 685; R. v. Totivan & Dale, Court of Appeal, unreported, 15 August 1996, per Callaway, J.A. at page 13.

[10] R. v. Bogunovic, supra, per Callaway, J.A. at [59].

[11] (1990) 54 S.A.S.R. 17 at 23-24 (per King, C.J.).

[12] [1999] VSCA 127; [1999] 2 V.R. 553 at 568-9.

[13] cf. Heatherington v. R. [1994] HCA 19; (1994) 179 C.L.R. 370 at 383 per Brennan, Dawson and Gaudron, JJ.

[14] [1992] HCA 69; (1992) 176 C.L.R. 177.

[15] cf. Pollard v. R., supra, at 191 per Brennan, Dawson and Gaudron, JJ.

[16] [1955] HCA 59; (1955) 93 C.L.R. 493 at 514.

[17] [1988] HCA 6; (1988) 164 C.L.R. 365 at 371-2.

[18] [1997] 2 V.R. 446.

[19] [2001] VSCA 14.

[20] See R. v. Denyer [1995] VicRp 12; [1995] 1 V.R. 186; R. v. Knight [1989] VicRp 62; [1989] V.R. 705; and R. v. Lascano, unreported, Court of Appeal (Vic.) 7 December 1995.

[21] (1997) 94 A.Crim.R. 41 at 50-51. (See also R. v. Fernando & Anor. (1997) 95 A.Crim.R. 533 at 536 per Abadee, J.)