R v Fitchett [2008] VSC 258

1 Donna Fitchett, you have been convicted of murdering your sons Thomas King Fitchett and Matthew David Fitchett and it falls to me to sentence you.

2 You were born on 1 January 1959 and at the time of the offences on 6 September 2005 you were 46 years of age. You were raised in Doveton and completed year 11 at a Roman Catholic secondary school before training as a nurse at St Vincent's Hospital, East Melbourne between 1976 and 1978. Thereafter, you spent some 12 years in various nursing capacities before meeting your former husband, David Fitchett, in 1990.

3 You married him in 1993 and bore him two sons. The elder son, Thomas Fitchett, was born on 5 August 1994 and thus was eleven years' old when you killed him. The younger son, Matthew Fitchett, was born on 3 December 1995 and so was not quite 10 years' old when you killed him. Immediately before their deaths, both boys were healthy, happy, able and popular at school and with friends.

4 After the births of the boys, you continued to nurse for some time, but in 2002 you were retrenched from a newly established clinic in Canterbury where you were then working, and after that, you studied options trading and began to trade by internet from home with the aid of a $150,000 equity loan which you and David Fitchett took out against the security of the family home.

5 Although not diagnosed until years after the event, following the birth of each child you suffered post-natal depression and, more lately, from hashimoto's thyroiditis and menopausal hormonal imbalances. Once diagnosed, your general practitioner prescribed a low-level anti-depressant and also thyroid and hormonal supplements. Consequently, up to the time of the killings, you did not exhibit any symptoms sufficient to warrant specialist psychiatric care. Over time, however, you continued to suffer from mood disturbance and depressive symptoms, although fluctuating in severity, and as a result the quality of your marriage began to deteriorate. In the last couple of years before the killings, you became fixated on difficulties which may occur in relationships between fathers and sons, and about David Fitchett's relationship with his father; and, consequently, about his relationship with your sons. Your concerns appear to have sprung from a sense of grievance that David Fitchtett spent too much time working and playing golf and too little with you and the boys.

6 Approximately fifteen months before the killings, you consulted a counsellor, Patra Antonis, about the matter and thereafter between June 2004 and August 2005 you saw Ms Antonis on 37 occasions. In the course of that process, you learned of what Ms Anotonis described as 'passive aggressive disorder' and you concluded that David Fitchett suffered from that malady. That led you to the misconception that he was a bad father, selfish, and a procrastinator and that, because he was 'passive aggressive', he could not and would not ever change.

7 From March 2005, your state of depression worsened. You felt as though you were putting on a façade of pretending to be happy when you were not. You took to locking yourself in your room when your sons were at school and then spending the better part of the day under the blankets. When David Fitchett came home from work in the evenings, you went straight to bed and left him to eat alone. Your sexual relationship ceased and you began to sleep in separate rooms.

8 Matters came to a head in August 2005. After much discussion with the Ms Antonis, you determined to leave David Fitchett and, on 30 August 2005, you told Ms Antonis that you had decided to leave him and that you had to plan quietly towards the future. In her evidence at trial, Ms Antonis said you implied that the sort of planning you had in mind was financial planning. But during the following week, you began to act as if you had decided to leave immediately. You set about putting your affairs in order and distributing several of your valued possessions among your friends and then on the evening of Friday 2 September 2005 you told David Fitchett that you were going to leave him and take the boys with you.

9 The next morning, David Fitchett attempted to discuss the matter with you at greater length. But you refused to listen. You said only that he had to work out his own problems and that whatever you were doing was irrelevant to him. Later in the day, he spoke to you again and asked you whether the situation was retrievable. But you answered only in terms that he had to work out what he was going to be doing for the rest of his life. Then or at some other point in the day, you told him that once you had moved out you would need assistance with the boys, by which I infer you meant financial assistance, and he replied that, in the circumstances, it would have been better if you had never had the boys. He added, however, that, since he could not afford to maintain the family home and also another dwelling suitable for you and the boys, he would move out and leave you and them in possession. You said to him that the boys were really looking forward to Fathers' Day, which was the next day, and that he had better ensure he enjoyed it because it would be the last he would have with them as the Fitchett family.

10 That night, you decided that you could not go on with life as a single parent and therefore that you would commit suicide. You also decided that you would rather kill the boys than leave them behind with David Fitchett. It is not clear what led you to that latter conclusion. One possibility, which is suggested by the contents of a note you later wrote to Patra Antonis, is that you managed to convince yourself that, without you, the boys would be better off dead. As you put it in the note to Ms Antonis: 'they would not be able to get over and it would be too cruel to them'. But a second possibility emerged from evidence given by your sister, Louise Mitchell, at trial. She said that, on the day before the killings, you mentioned that you had told David Fitchett a few times that you were going to leave him, most recently on Fathers' Day, and that you were upset because your son Thomas said that he wanted to stay with his father. A further possibility, which arose out of some of the things stated in your later 'suicide note' to David Fitchett, is that you wanted to punish him for saying that it would have been better if you had not had the boys or perhaps wanted to punish him for not being the sort of husband and father which you thought he should have been.

11 The next morning David Fitchett took the boys bowling at the Box Hill Bowl for several hours, as you had suggested. You spent the time cleaning the house fastidiously, which was not your usual practice, and bundling up a large stock of the boys clothing into five plastic garbage bags.

12 The following day, Monday 5 September 2005, you kept the boys at home because at that stage you planned to take them to Sorrento and there to commit suicide by jumping off a cliff after taking sedatives. Later, however, you changed the plan and determined instead to kill the boys by giving them each an overdose of prescription benzodiazepines, and then to kill yourself by cutting off your head with a drop saw in the garage. Thus you spent the balance of the day running errands and completing preparations, including a visit to your sister's home at about 5.00pm that day.

13 In her evidence, your sister said that you appeared to her to be in a highly emotional state and that you made a number of bizarre statements, such as that the federal government had been behind the Port Arthur massacre and that a major mining company had been responsible for the death of Harold Holt. She said that she was concerned about you and that, deep down, she probably knew that you wanted to kill yourself. Plainly, however, she could not have foreseen what was coming.

14 On the morning of Tuesday 6 September 2005, you completed a few remaining errands, including returning some papers to your sister's home and then, shortly after 11.00 am that morning, you posted a letter to Patra Antonis in which you explained your intentions, as follows:

The last time we sat opposite each other in your cosy inviting home, I told you of my intentions of staying with David for the sake of the children until they were a little older.

I was determined to lie, cheat, be selfish and greedy in order to claim whatever I could in order to start a new life with Thomas and Matthew. Who was I kidding? The problem was...I don't know how to be selfish or greedy.

When I arrived home I lay on my bed and read numerous articles on Passive Aggressive Personality Disorder. The shock of realising that all my efforts ----well, it doesn't matter. My spirit was broken - something inside me died. I told David it was over on the weekend because I'd already decided on my plan. I asked him to take the boys out on Fathers' Day and have a wonderful time as it would be his last as the "Fitchett" family. When we had our talk he said that he should never have had children amongst other things. I know he loves the boys the only way he knows how. Unfortunately he had no good role model as a child. I on the other hand adore my boys who have given me more pleasure than I could ever have imagined.

Part of me despises David but like you kept telling me - - - He just can't help it.

Sadly I'm too broken to go on. Today the boys will be given an overdose as I cannot and wouldn't ever abandon them. If I had real support from somewhere from someone who really cared it may have been different. I have a few good friends who will be shattered by my actions and for that I am sorry.

As for David - his Father or sister My Mother/Father - damaged sisters. What a list of support.

Thomas and Matthew have had a wonderful childhood to date and I wont let anyone hurt them - ever! They think we are going on an exciting trip today but I've told them they need to take some medicine so they won't get air-sick. I'm not a coward - nor am I crazy. I see this as my greatest act of love. I'm not punishing David. I pity him.

Patra please don't feel you have failed me. On the contrary - - - I know now I was beyond help. I am so sorry for the pain I will cause you but you gave me enormous peace by mirroring me. Our [sic] now want peace forever. I have enclosed some treasures I want you to keep as well as the clock you so kindly loaned me.

Also the money for missing my appointment with you today.

Thankyou dear Patra for your love and kindness. You're gifted and beautiful and good - A real woman who I not only admired by [sic] selfishly wished you were my mum (sorry). You're too young (big sister).

15 After posting the letter, you returned home with the boys and persuaded them to swallow large amounts of prescription benzodiazepines; telling them that they were going on a trip and that the medicine was for motion sickness or possibly to guard against a virus. Then you placed them in separate rooms to sleep, Thomas in the master bedroom and Matthew in his own room some way down the hall.

16 A couple of hours later, after Thomas failed to exhibit the signs of the respiratory arrest you had hoped would result from the benzodiazepines, you used a sock to strangle him and left him in the bed in the master bedroom clad only in a tee-shirt. Coincidentally, one of your neighbours, Kathlyn Schipper, was passing by outside and left a message on your telephone answering machine. When you heard the message, you so feared that she might come to the front door and enter that you ran to the door and locked it. As you told her during a telephone conversation on 8 September 2005, a couple of days after the killing:

Kathy, you rang and you said you were outside. I just panicked. I ran to the front door and I locked it just in case you decided to open the gate and come inside.

17 You next turned your attention to Matthew, when he awoke groggy, delirious, incoherent and having wet himself. You helped him up, washed him and changed him into clean clothes and gave him a teddy bear before putting him back to bed. Ironically, as you later explained, you so cleaned him up lest people think that you did not care for him. But then having done that, you held a pillow over his face to stop him breathing. He struggled to survive and, as you later told Kathlyn Schipper during your telephone conversation with her on 8 September 2005, at that point the family's Rottweiler dog, Gemma, became distressed and attempted to stop you from hurting Matthew. Unfazed, however, you broke off from the attack on Matthew and took Gemma outside and then returned to complete the killing by strangling him with a sock around his neck.

18 There is no direct evidence as to what deterred you from killing yourself with the drop saw as you had planned. Nor is there any direct evidence as to what you did or thought in the three or more hours between killing the boys and getting ready for David Fitchett's homecoming. It may be that you were attempting to summon up the courage to end your own life. But all that appears from the evidence is that at about 5.00pm you ingested a non-lethal overdose of benzodiazepines and, as they began to take effect, you wrote a note to David Fitchett, as follows:

I'm so so sorry for your pain upon the discovery of what I've done. I didn't do it because I'm angry with you. I forgive you for whatever hurt you caused me. You can't help it. I just couldn't abandon our beautiful boys. I've been dead for a few days and I just wanted peace. I overdosed the boys and when they were asleep I suffocated them & then strangled them in case they woke up. They put up a bit of a struggle but said nothing they didn't know it was me or it was happening to each other.

They were happy this morning and said they loved you and had a great fathers day. I pray I do not live through this. I've said some angry things but I truly forgive you. I hope you find the strength to go on without us. Please take care of the animals especially Gemma. She knows something is wrong.

If you can't please ring Sam Smith as I'm sure she will take Gemma back. The boys birds will not survive the heat on the decking - Get rid of the rats and put them in the aviary in Summer. They loved them.

I love you for your good qualities even though they are few and far between. Please get help because without a good father you did not deserve... [it then becomes illegible]

If I have one last wish it is to be cre[m]ated with the boys at Kew cemetery. They loved it there ...[it then becomes illegible again].

19 David Fitchett returned home that evening at approximately 6.30pm and found you drug affected and the boys in bed. To begin with, he was not sure if they were dead and so he tried to save them. He gave them CPR as he spoke by telephone to the emergency services operator and he persisted with CPR until paramedics arrived and determined that it was pointless to persist. In fact they had been dead for some hours. Meanwhile, as he was attempting to save the boys, you walked to the kitchen and used a kitchen knife to inflict several wounds to your arms and neck and groin. Some of the wounds bled profusely but none of them was likely to be life threatening. You then walked back to the rear bedroom and got into one of the beds and remained there huddled up facing the wall until ambulance officers arrived. Then you were taken by ambulance to the Box Hill Hospital and kept there under guard.

20 The following morning you were recommended for involuntary treatment under s 8 of the Mental Health Act 1986 and admitted to the Thomas Embling Hospital with a diagnosis of major depressive disorder and as being at high risk of suicide. After treatment, you were transferred to a women's prison on 17 November 2005 where you were assessed by a consulting psychiatrist to be settled. But on 5 January 2006 you made what was considered to be a serious attempt to take your own life, and were once again recommended for involuntary treatment under s 8 of the Act and returned to Thomas Embling Hospital and, upon admission, you were assessed as once more having a severe depressive illness associated with a high degree of long term risk of suicide. You thus remained under specialist care until 18 January 2006 when you were again sent back to prison. Then, after returning to mainstream, you made what was judged to be another serious suicide attempt and you were committed to close observation in the protection unit of the prison where you remained for some months on anti-depressants.

21 On 21 November 2007, you were admitted to Thomas Embling Hospital for the third time, after your treating psychiatrist noted a deterioration in your mental state over a three to four week period. You presented then with marked withdrawal from contact with clinical staff, food and fluid refusal in the context of feeling victimised by correctional staff, and expressing thoughts of going on a hunger strike with the intention of ending your life. The diagnosis was again one of depressive illness, and so further adjustments were made to your anti-depressant medication. You were returned to prison on 7 February 2008 to continue there with psychiatric care.

22 Three expert witnesses gave evidence at trial as to your mental state at the time of the killings. Professor Paul Mullen, who is Professor of Forensic Psychiatry at Monash University and the Clinical Director of the Victorian Institute of Forensic Mental Health, considered that you were suffering from a major depressive disorder which so affected you that you did not know that your actions were wrong. Dr Daniel Sullivan, who is a consulting psychiatrist, the Assistant Clinical Director of the Victorian Institute of Forensic Mental Health and an Honorary Lecturer in the Department of Psychological Medicine at Monash University, was of opinion that you maintained what he termed a 'double orientation'. On the one hand you were aware of the wrongfulness of your actions according to the standards of reasonable people, but on the other you conceived of your actions as sending the boys to a better place. Dr Yvonne Skinner, a consulting psychiatrist from New South Wales with extensive experience in the psychiatric assessment and care of women prisoners and in a number of other capacities relating to forensic psychiatry, was of opinion that at the time of the killings your depression was only mild to moderate and that you knew that your actions were wrong. She attributed your subsequent decline in mental health to your reaction to the killings. The jury rejected your defence of mental impairment and thus must be taken not to have been persuaded on the balance of probabilities that you did not know that your actions were wrong. I sentence you on that basis.[1]

23 The nature and gravity of your offences is appalling. Any intentional homicide is a grave offence but the idea of a mother intentionally killing her children is particularly shocking. Your sons' lives were given to you to nurture and cherish and instead you intentionally killed them by means which were premeditated, cold-blooded and brutal. Putting aside the question of your mental condition at the time of the offences, crimes of the kind which you committed necessitate the most rigorous punishment to manifest the extent of the court's denunciation and provide just punishment.[2]

24 There are a large number of victim impact statements. They include David Fitchett's statement and statements of his father, sister and brother in law. There are also statements from the principal of the boys' school, parents of other children who attended the school, and of some of your former friends and neighbours. Each of them expresses a sense of loss and dismay for which there is no remedy. David Fitchett's statement is, however, particularly anguishing in what it reveals as to the effects on him of his sons being murdered by their mother.

25 It was contended on your behalf that your mental condition at the time of the killings was so impaired as significantly to reduce your moral culpability. Reliance was placed on evidence given at trial by Professor Mullen and Dr Sullivan that you were suffering from a major depressive illness that significantly affected your ability to think rationally. Based on that evidence, and the observations of the Court of Appeal in R v Verdins,[3] your counsel submitted that your impaired mental functioning reduced the need for denunciation and general deterrence and, therefore, the length of sentence which it is necessary to impose.

26 The prosecutor, however, opposed that idea. He contended that I should prefer the view of Dr Skinner that your state of depression at the time of the killing was only mild to moderate and that, while it has since developed into a state of serious depression, the latter condition is the result of having killed your sons and then having to face the enormity of what you have done.

27 In my view, there is some force in the Crown's submission. Dr Skinner's opinion was that she could see no evidence that you were suffering from anything more than mild depression before the killings, and that what you wrote in the notes to your counsellor and David Fitchett suggested that the killings were motivated by spousal revenge which you knew to be wrong. As it appears to me, that view of the matter derives support from your sister's evidence at trial that, before you killed the boys, Thomas learned of your intention to part ways with your husband and that you were most upset that Thomas wished to remain with his father. Dr Skinner also explained that such killings were not unprecedented and she cited another case in New South Wales where the offender had an apparently normal family life and no signs of gross personality disorder or significant problems in the family prior to the killing. In Dr Skinner's opinion, it was only after your offending that you became acutely depressed, and that was the result of having to live with what you had done. Additionally, there was evidence at the trial (which is to some extent supported by the annexures to David Fitchett's victim impact statement)[4] that, in the weeks and months which followed your arrest, you were able to attend to financial and business transactions, including providing detailed instructions to your solicitor as to the property settlement you were seeking from David Fitchett. In Dr Skinner's opinion, a person with the impairment of cognitive functioning of the kind characteristic of severe depression would not be able to carry out such dealings or even basic procedures such as changing addresses.

28 Admittedly, Professor Mullen and Dr Sullivan disagreed with that conclusion. Professor Mullen conceded it was possible that your commercial dealings in the immediate aftermath of the killings were a sign of callous insensitivity inconsistent with deep rooted depression, but he said that he preferred the alternative view. He considered that it was inherently improbable that a mother would do what you did unless she had ceased to think rationally about her actions. To similar effect, in Dr Sullivan's opinion, it was not inconsistent with serious depression for a subject to retain the capacity to deal with business matters as you did, and hence your apparent ability to deal with such things immediately before and after the killings was not at odds with a major depressive disorder productive of a double orientation which affected your ability to think rationally.

29 The difficulty with Professor Mullens' and Dr Sullivan's opinions, however, is that the jury rejected your defence that you did not know that what you were doing was wrong; and, although that may not necessarily be inconsistent with the existence of a double orientation the result of a major depressive disorder, the jury's verdict coupled with the divergence of expert opinion as to the extent of your depression at the time of the killings creates a sense of doubt. The problem is exacerbated by the fact that, to a large extent, the quality of Professor Mullen's and Dr Sullivan's opinions was dependent on the truth of what you told them. You did not give evidence at trial, and so I have not had the benefit of seeing you cross-examined, and you refused to subject yourself for examination by Dr Skinner (which may have assisted in resolution of the problem). In the result, there is not a preponderance of evidence in your favour on the point.[5]

30 So to say is not to exclude the possibility that you were suffering from a major depressive disorder with consequent double orientation which significantly affected you ability to think rationally. On one possible view of the matter, that idea is equally consistent with the objective evidence as the notion that you were rationally motivated by a wish for revenge. Arguably, it also fits with the fact that you were diagnosed as suffering from a major depressive condition only hours after the offences and have since been so diagnosed on several other occasions. Logically, too, it would help to explain why a woman, who according to the evidence loved her children, would intentionally do to them what you did.

31 But I am not reasonably satisfied that it was so. In matters as serious as this, reasonable satisfaction is not produced by 'inexact proofs, indefinite testimony or indirect inferences'.[6] In order to find that your mental condition was substantially impaired at the time of the killings, I would need to be persuaded on the balance of probabilities that Professor Mullen's and Dr Sullivan's opinions are to be preferred.[7] In face of the competing expert opinion of Dr Skinner and so much of the objective evidence as tends to supports her view, I am not so persuaded. I am therefore not satisfied that your mental condition at the time of the killings was such as significantly to reduce your moral culpability or otherwise to reduce the need for denunciation and general deterrence.

32 It was further contended on your behalf that, even if that be so, your present mental condition warrants a substantial reduction in the sentence which would otherwise be imposed, and necessitates consideration of the conditions in which the sentence should be served. There is more force in that submission. As the Court of Appeal made plain in Verdins,[8] the question of whether general deterrence should be moderated or eliminated as a sentencing consideration depends not only on an offender's mental condition at the time of offending but also on the nature and severity of the symptoms exhibited by an offender at the date of sentence; and whether specific deterrence should be moderated or eliminated as a sentencing consideration is affected in a similar fashion. Additionally, as the court said, the existence of a mental disorder at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal mental health, and where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health it will tend to mitigate punishment.

33 For the purposes of formulating this sentence, I have had the benefit of a pre-sentence report prepared by Dr Douglas Bell, consultant psychiatrist, who is the Assistant Clinical Director (Inpatient Operations) and Acting Director of the Victorian Institute of Forensic Mental Health. Dr Bell advises that you continue to demonstrate symptoms of a major depressive illness, including prominent lowering of mood, depressive cognitions of hopelessness, despair and futility, and an unremitting desire to suicide and join your children whom, as you now understand, you failed and abandoned. He considers that, despite the absence of concurrent psychotic symptoms, such as hallucinations, delusions or passivity phenomena, you remain currently severely depressed and at high risk of suicide and that, even if your depression diminishes in severity over time, you will remain for the foreseeable long term future at high risk of suicide and will continue to require intensive monitoring and supervision and clinical care and treatment.

34 Dr Bell also states that, although throughout the period of your remand, clinical and correctional staff have sought to support and manage you in a safe and humane manner, there have been times when the requirements of the prison management regime have contributed adversely to your mental health. As he explains, that is a reflection of the inevitable difficulties which arise in the clinical care of someone with severe mental health problems where a therapeutically oriented clinical approach needs to sit alongside non-clinical oriented policies and practices inherent within the prison environment. It follows, in Dr Bell's opinion, that the nature of your mental condition and the types of measures that correctional authorities need to take to ensure your safety within prison inevitably would have the effect that a term of imprisonment would be likely to affect you more adversely than someone of ordinary mental health.

35 Significantly, the Crown did not seek to cross-examine Dr Bell or otherwise dispute the accuracy of his prognosis. Accordingly, I accept his views and proceed on that basis.

36 The maximum sentence for murder is life imprisonment and, subject to mitigatory considerations, current sentencing practice in a case of premeditated murder would be to impose a sentence of more than 20 years' on each count with a large degree of cumulation. In your case, however, the only defence ever offered was one of mental impairment. Otherwise you have from the outset accepted responsibility for your crimes. Evidence given at the trial, and the observations of Dr Bell, persuade me that you are now profoundly remorseful. It is accepted that you are unlikely to offend again. Accordingly, specific deterrence is not a significant factor.

37 Your prospects of rehabilitation, however, are in one sense debatable. Much may depend on the progress which is made in restoring your mental health. It seems from Dr Bell's report that that is unlikely to improve a lot for a long time.

38 As to general deterrence, I consider that your present and projected state of mental health of themselves warrant a significant reduction in sentence. To adopt and adapt the words of Allen, J in R v Engert,[9] the sympathy which your condition is likely to attract in the eyes of others in the community generally is such that to sentence you with the full weight given to general deterrence would not be useful. Additionally, I consider that the risk of imprisonment having a further substantial adverse effect on your mental health,[10] and the fact that imprisonment will weigh more heavily on you than someone of normal mental health,[11] further mitigate the punishment which it is necessary to impose.

39 Balancing as best I can the considerations to which I have referred, I have determined that it is sufficient to impose a sentence of 17 years' of imprisonment on each count and to order that seven years of the sentence imposed on count 2 be served cumulatively on count 1. The total effective sentence would thus be one of 24 years' imprisonment. Mindful then of the need not to undermine public confidence in the sentencing process, I would set a non-parole period of 18 years.

40 As Dr Bell points out in his report, there is then a further question as to whether I should make a hospital security order for you under s 93A of the Sentencing Act 1991, and he recommends that I do so. He states that the aim of such an order would be to provide you with optimal conditions for the care and treatment of your depressive illness and to provide an environment in which you may address in psychological terms your relationship to your children's death and the complicated grief which is associated with it. Dr Bell has also provided the court with a certificate in the prescribed form that you are mentally ill, and that your mental illness requires treatment which can be obtained by subjecting you to a hospital security order and that because of your mental illness your detention and treatment in an approved mental service is necessary for your mental health or safety, and on the basis of his certificate I am satisfied of those matters.

41 Based on Dr Bell's recommendation, and in light of your current mental condition, your psychiatric and forensic history and your social circumstances, I have determined that I should make a hospital security order in respect of you.

42 Donna Fitchett, on the counts of having murdered your sons Thomas Fitchett (count 1) and Matthew Fitchett (count 2) of which you have been convicted, I sentence you by making a hospital security order for you of twenty-four (24) years' duration. I set a non-parole period of eighteen (18) years. I declare that the number of days already served in custody under the sentence imposed on you is [1046] including this day and I direct that the fact of the declaration and its details be entered in the records of the court.

[1] Cheung v The Queen (2001) 290 CLR 1, 13[14].

[2] See, for example, R v Farquharson [2007] VSC 469.

[3] [2007] VSCA 102; (2007) 16 VR 269, 276 [32]; see also R v Strezovski [2007] VSCA 260[25]; R v Tran [2008] VSCA 80[27]-[29].

[4] See R v Swift [2007] VSCA 52; (2007) 15 VR 497 as to the limited use which may be made of that evidence.

[5] Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642, 649; Gordon v R (1982) 41 ALR 64; cf R v Barrett [2007] VSCA 95; (2007) 16 VR 240, 263 [110]-[120].

[6] Bringinshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 360 (Dixon, J).

[7] R v Storey [1998] 1 VR 359, 370-371.

[8] [2007] VSCA 102; (2007) 16 VR 269.

[9] R v Engert (1995) 84 A Crim R 67, 72; R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 274[21].

[10] R v Vardouniotis [2007] VSCA 62, [30]-[31]; R v Verdins, ibid, 276 [29]-30].

[11] R v Smith (1987) 44 NSWR 587, 589; R v Van Boxtel (2004) 11 VR 258, 266[29]; R v Verdins, ibid, 275[27].