R v Gemmill [2004] VSC 30

3 As you subsequently told police, after an initially amicable discussion an argument developed concerning property and, in particular, your wife's jewellery. You commenced to struggle with her in a manner that is not entirely clear on the evidence and then grabbed a knife from a bookshelf and attacked and stabbed her with it.

4 During this attack the blade of the knife was broken from its handle and your wife suffered injuries which ultimately left her lying motionless on the floor. At this point you believed she was dead. You went into the kitchen of the house in order to obtain further knives with which to kill yourself. When you returned from the kitchen your wife got up and came at you with the broken blade of the knife which you had first used against her. You again struggled with her and attacked her. During this struggle she was weak and the two of you fell or otherwise came to the floor. Ultimately you deliberately cut your wife's throat with one of the larger knives you had obtained from the kitchen. In so doing you inflicted repeated cuts resulting in horrific wounds to your wife's neck.

5 Following this you made an attempt on your own life, inflicting substantial wounds with a bread knife to your wrist and further wounds to your throat and chest.

6 At your trial you did not contest the fact that you had intentionally killed your wife but evidence was called from a consultant psychiatrist, Dr Walton, in support of the proposition that at the time of the killing you were, as a result of severe depression, mentally impaired in the sense that you could not reason with a moderate degree of sense and composure about whether your conduct as perceived by reasonable people was wrong. The jury did not accept this defence and found you guilty of murder. In so doing they no doubt had regard to the evidence:

(b) as to your conduct in the period leading up to the killing and, in particular, during the period of the separation from your wife;

(c) as to the nature of the wounds inflicted by you;

(d) as to statements made by you in the aftermath of the killing;

(e) as to the account of events given by you to the police;

(f) as to your subsequent mental state as observed by a series of treating medical practitioners and others; and

(g) as to the opinion of Dr Forrester who was called to give evidence on behalf of the Crown and who was of the opinion that while you were suffering from depression, you were not mentally impaired in the relevant sense.

7 There can be no doubt that the unanimous verdict which the jury reached was open to them and, in turn, I am bound to sentence you on a basis which is not inconsistent with that verdict. In this regard I specifically note that the opinion expressed by Dr Walton at the trial was inconsistent with the jury's verdict and, accordingly, I cannot sentence you on the basis that his assessment of your mental condition was correct.

8 There are aspects of the killing which must be regarded as aggravating your offence. The most significant of these are as follows:

9 First, the fact that it was you who invited your wife to your home and did so for the apparent purpose of amicably progressing the resolution of your differences by completing an interim property settlement which you yourself had set in train.

10 Second, the fact that there is no evidence of any unduly provocative behaviour on the part of your wife. From your own statements it appears that you became inflamed as a result of statements made by her about her property and, in particular, her jewellery. Whatever was the precise trigger for your attack upon her, and I cannot be satisfied upon the evidence in this regard, I am satisfied that no unreasonable or, indeed, material provocation was offered by your wife.

11 Third, the fact that it is apparent that your wife was killed only after a protracted struggle, a struggle in which she must have suffered extreme fear and distress.

12 Fourth, the fact that you killed your wife despite the fact that she sought to defend herself, and you must have been aware that she was seeking to defend herself and struggling for her life. In this regard I am satisfied the wounds to your wife's hands were consistent in large part only with a number of defensive injuries suffered when you were armed and she was not. They are not capable of full or substantial explanation on the basis that she grasped the broken blade of a knife herself in an attempt to use it against you. In so far as they are so explicable, they demonstrate the extent to which you drove her by your cowardly and brutal attack.

13 Fifth, the fact that after you left your wife for dead lying on the floor and had moved away from her into the kitchen intending suicide, you then went back to complete her murder on becoming aware that she was in fact alive. In so doing you deliberately affirmed and gave effect to your determination to take your wife's life.

14 Sixth, the fact that in your last struggle with your wife you realised that she was weak and, hence, at your mercy, but persisted in taking her life.

15 Seventh, the horrific nature of the wounds inflicted by you upon your wife demonstrate extreme ferocity, brutality and a determination to end her life.

16 In summary, these circumstances evidence a cowardly, brutal, ferocious, determined and protracted attack upon an initially unarmed woman by a man who turned to the use of a series of knives and at all times possessed superior physical strength.

17 In forming the above conclusions as to the circumstances of the offence, and in forming my conclusions as to the further matters I will refer to, I have had regard to the principles stated by the High Court in R v Cheung[1] and in R v Olbrich[2]. In the latter case the High Court adopted what was said by the majority in the Victorian Court of Appeal in R v Storey:

"A judge when sentencing may not take facts into account in a way adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. But if there are circumstances which the judge proposes to take into account in favour of the offender, it is enough if these circumstances are proved on the balance of probabilities."[3]

18 As against the circumstances which I have referred to aggravating your offence, there are some matters which may be regarded as either helping to some extent to explain your conduct or to reduce your moral culpability.

19 First, I accept on the evidence that the probability is that the fatal attack on your wife was not premeditated but occurred as the result of an emotional escalation of conflict which you did not plan, although it is clear from statements made by you in the presence of others that this possibility had previously crossed your mind.

20 Second, it is clear that you were emotionally affected by the breakdown of your marriage and, in particular, that it resulted in what Dr Forrester described as moderate depression and what Dr Walton described as major depression (each psychiatrist adopting a different system of classification). It is apparent that the extreme aggression which you demonstrated towards your wife occurred in the context of this state of mind. In this regard I note that both doctors Forrester and Walton accepted that you suffered from depression amounting to a mental illness at the time of the killing. What they differed upon was whether such illness resulted in mental impairment such as to give rise to a defence.

21 The third and related aspect of the circumstances which may be regarded as going to some extent to your moral culpability is that it is clear that your aggression towards your wife was coupled with attempted self-destruction. You inflicted substantial wounds upon yourself and the killing occurred after prior episodes of suicidal ideation. This aspect of the matter may be said to emphasise the state of emotional despair in which you acted.

23 You were born on 12 February 1952 and are now 51 years of age. You were 49 when the offence took place. You are the second of five children in a strong family unit.

24 You completed Year 11 before leaving school and commencing to work as a bricklayer. You have worked most of your life with your two brothers in a bricklaying and concreting business known as Gemmill Brothers and you were working in that business at the time of these events.

25 You married Robyn in 1975 and your first son, Shane, was born in May 1976. Your younger son, Kyle, was born in November 1980. It appears that the family lived in various properties in and around Nathalia while your sons were growing up.

26 In 1995 your wife separated from you for the first time and during this period you sought psychiatric help and spent some days in hospital at Beechworth and then in Nathalia. Your diagnosis at that time was one of depression. After a period of around three months you and your wife reconciled and the family moved into a rental property in Nathalia. However, in early 2001 the relationship again deteriorated and on 19 June 2001 your wife moved out of the house you had by then purchased at 25 Federation Street, Nathalia, leaving you a note ending the marriage. It is clear that you were greatly distressed by the ending of your marriage and, indeed, that you found it very hard to accept that it was over. After your wife left the house there were disagreements between you over property, and on 21 August 2001 consent orders regarding some property were made in the Shepparton Magistrates' Court at your instigation.

27 During this period you suffered from depression and despair over the breakdown of the marriage. Evidence was given at your trial by members of your family and others concerning your emotional state. You entertained suicidal ideas and a letter written by you to your sons which appears to be a suicide note was tendered in evidence during the trial. Wayne Limbrick recounted finding you at 25 Federation Street on the day that you wrote that note sitting with a knife. He also described taking you to your sister Rhonda. Your sister gave evidence of then taking you to hospital at Shepparton, and said that you spent some days there and subsequently at Nathalia Hospital. There was evidence from local general practitioners about consultations you had with them in relation to depression and suicidal feelings at around this time and evidence from your family that you were "not coping" and that your day-to-day effective functioning was reduced. I accept this evidence.

28 You have no prior convictions and it is clear that prior to these events you were a man of good character. Evidence presented at your trial and statements tendered to me on the plea make it clear that prior to these events you enjoyed an excellent reputation in the local community where you were regarded as a hard worker, as being a significant contributor to community life and, in particular, a contributor to local football clubs and other community activities. You were also regarded as essentially a good man.

29 It was put to me by Mr Houlihan that the evidence of your prior good character and standing in the community was such in itself as to justify a merciful sentence. Whilst there is no doubt that such evidence is relevant to the sentence I should impose, evidence of this kind could never outweigh the need for an appropriate penalty reflecting the seriousness of your offence and the brutal and merciless fashion in which you murdered your wife.

30 I accept that you have demonstrated continuing distress and remorse since killing your wife. In part this has taken the form of expressions of regret that you were not successful in killing yourself. You have also professed to Dr Walton a lack of understanding as to what you did at the time of the killing. I do not accept that the killing was other than a deliberate and calculated act, although it occurred when you were in a state of emotional despair. I am also not satisfied that you fully accept responsibility for the killing of your wife. There has been much in the evidence of the psychiatrists and in your continuing presentation to the court during your trial and plea which reflects self-pity. Nevertheless, I do accept that you continue to suffer significant emotional pain and anguish at the result of the breakdown of your marriage and the actions which you engaged in.

31 In so far as your self-pity is concerned, I observe that tempting as it may be to regard yourself as a victim in relation to the breakdown of your marriage, the simple truth is that the horrific death of your wife was something for which you alone were responsible.

32 The most difficult aspect of your case from a sentencing point of view is the assessment of a proper response to the evidence as to your depressive condition. I accept that at the time of the offence you suffered from a psychiatric illness not amounting to insanity. I further accept that you continue to suffer from such a condition. Dr Walton gave evidence on your plea that your condition could be described as serious on the basis of the magnitude of the lowering of mood which you report and which has been observed; the duration of your condition to date, which has been quite protracted in terms of depressive conditions; the fact that your illness has proved to some extent to be treatment resistant; and also that your condition was associated with a serious life-threatening suicide attempt and you continue to entertain suicidal ideas. Dr Walton further stated that perhaps up to 25 per cent of the population might experience a diagnosable episode of depression in the course of their lifetime, but the percentage of persons who suffer from the type of serious protracted depression which afflicts you is much smaller, perhaps one or two per cent.

33 At your trial Dr Forrester gave evidence, which I accept, that there is no evidence, either in the medical files relating to you or elsewhere, that you have ever suffered a serious mental disorder such as schizophrenia, or that you were ever psychotic or that you have ever had difficulties with your level of consciousness or cognitive difficulties. He further stated that in his opinion the evidence suggests that you were suffering from a moderate depressive illness at the time you killed your wife. Symptoms of moderate depressive illness include frequent subjective feelings of depression. On objective examination, people affected look depressed, downcast and unhappy. Typically people affected have sleeping problems and sometimes, in particular, people wake up early in the morning and feel particularly low at that time. People may have appetite disturbance and weight loss. People may feel anxious and agitated as part of the depression and fidget regularly. Other symptoms may include a general lack of interest in the usual things in life that would occupy the person, difficulty concentrating on the usual activities of life. Suicidal ideas and sometimes suicidal plans may also arise from this condition.

34 The description of your condition in the period leading up to the killing of your wife by a whole series of witnesses is entirely consistent with Dr Forrester's description of what he calls a moderate depressive illness. The critical difference between the opinion of Dr Walton and Dr Forrester at the trial was that Dr Walton took the position that it was probable your condition materially worsened shortly prior to the killing of your wife. As I have said, Dr Walton's opinion is inconsistent with the verdict of the jury. Further, I am satisfied that Dr Forrester was correct in concluding that the account given by you to police demonstrates a relatively coherent recollection of events in which you participated in a logical and coherent way in the sequence you described. It does not support the view that you suffered from serious mental impairment at the time of the killing.

35 Towards the end of his cross-examination, Dr Forrester stated that you were clearly suffering from what he called an emotional overload, but that he does not accept that you were not able to reason or consider what was right or wrong. I accept Dr Forrester's opinion is correct. It is entirely consistent with the verdict of the jury and with the evidence as a whole. It is, accordingly, on this basis that the relevance of your depression to your conduct at the time of the offence must be assessed.

36 In summary it is clear that at the time you were subject to severe emotional distress but both the verdict of the jury and the evidence of Dr Forrester make clear that your condition did not materially affect your cognitive functions or your capacity to reason and know right from wrong. It is not the case that at the time you killed your wife you had lost contact with reality.

37 After the death of your wife and your attempted suicide your condition gradually improved, but it deteriorated again after your conviction. Your condition has since again improved and it seems not unlikely that it will further improve with closure of these proceedings and the lapse of time, although I accept Dr Walton's view that there is no certainty of this.

38 The depression from which you have suffered and continue to suffer cannot, in my view, be regarded as being equivalent in seriousness to the delusional schizophrenia referred to in the case of R v. Tsiaras[4]. Nevertheless, consideration of the sentencing principles set out in that case is appropriate in the present case. In Tsiaras the Court of Appeal stated that a psychiatric illness not amounting to insanity may be relevant to sentencing in at least five ways. First, it may reduce moral culpability for the offence as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from a serious psychiatric illness is not generally an appropriate medium for general deterrence, whether or not the illness played a part in the commission of the offence. Fourth, specific deterrence may be more difficult to achieve and is not often worth pursuing as such. Fifth, psychiatric illness may mean that a given sentence may weigh more heavily on the prisoner than it would on a person in normal health. I will address each of these considerations in turn.

39 The opinion that Dr Walton expressed at your trial as to mental impairment carried with it the necessary implication that the killing of your wife might be said to have materially resulted from your depressive condition. The jury rejected that opinion. The opinion of Dr Forrester that you were not mentally impaired but did suffer from depression does not, in my view, carry with it the same implication. I am satisfied that the killing occurred when your emotions were affected by a depressive condition and, in particular, that you suffered from extreme despair and anger. Nevertheless, you remained mentally responsible for your actions. Your moral culpability may be said to be lessened in that you were the subject of very strong emotions at the time of the killing but your psychiatric condition cannot be regarded as substantially exculpating you in a moral sense. The killing of your wife resulted from a series of deliberate and extended acts, and in particular, the course of conduct you embarked on after you first believed she was dead, namely, one in which you resumed and continued the overpowering and killing of her, can only be described as despicable.

40 In so far as the nature and conditions of your sentence are concerned, I accept that your depressive condition means that it is likely, as Dr Walton has stated, that you may serve a greater part of your sentence in stricter custody than would otherwise be the case if you were not subject to a requirement for ongoing psychiatric supervision. Thus, although you will receive adequate treatment within the prison system, it is likely that that treatment may come at a cost in terms of the circumstances in which you are held.

41 I also accept that your depressive condition is relevant to the question of general deterrence. Nevertheless, the issue of general deterrence is of particular sensitivity in this case. Domestic killings are a cause of enormous and recurrent suffering in our community.

42 It is common experience that marriage breakdowns result in emotional stress. Neither the community nor the court through which it speaks can tolerate the resort to violence in such circumstances, let alone the resort to extreme violence of the nature in which you engaged.

43 Accordingly, a case such as yours does raise special sensitivity with respect to questions of general deterrence. Others will be tempted to end a stressful relationship with violence and the court cannot do other than reinforce the fact that emotional distress does not and cannot justify domestic violence. In the case of Ronald James Kelly[5] the Court of Appeal considered the case of an applicant who had pleaded guilty to the attempted murder of his de facto partner of eight years and to the unlawful administration of temazepam to his daughter, knowing that that substance was capable of interfering with her bodily functions. The sentencing judge accepted evidence that at the time of the offences the applicant was suffering from a severe bout of depression, that he still suffered from depression to a lesser degree and that he would receive adequate treatment within the prison system. The offences were committed when the plantiff's de facto partner informed him that she was leaving him, thereby terminating a relationship upon which he had relied. There are some obvious parallels with the current case.

44 The medical evidence in Kelly's case was coherent and persuasive as to the probable role of depression in the offences. That evidence was, in part, to the following effect:

"It is probable that he was overwhelmed by her decision and then rapidly became depressed. The most appropriate diagnosis is an acute adjustment reaction. He lost insight and believed dying together was the solution. It is probable that at the time of committing the crime, the severity of depression, extreme sense of abject loss and a nihilistic sense of hopelessness diminished Mr Kelly's judgment.

45 Mr Kelly probably understood the gravity and illegal nature of the offence but he saw it as the best option available to all three of them." when he accepted this evidence the sentencing judge formed the view that it was not appropriate to place emphasis upon the principle of general deterrence in that case.

46 In the Court of Appeal, Charles, J.A. (with whom Winneke, P. agreed) stated at paragraph 17:

"In stating that it was not appropriate to place emphasis upon general deterrence, it is possible that the judge was being unduly generous to the applicant. In Champion[6] Kirby, P., with whom the other members of the New South Wales Court of Criminal Appeal agreed, said that general deterrence is not eliminated, but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap, a proposition which has been cited with approval on numerous occasions in this Court. See, for example, Richards and Gregory[7]; Yaldiz[8]. The judge in this case may have intended no departure from this approach in stating that he would not place emphasis upon general deterrence."

"Tsiaras was a case of severe psychiatric illness. That needs to be borne in mind in applying the checklist (at 400 of the report). In the present case, general deterrence was not wholly excluded, albeit that its significance was diminished. That is what his Honour meant, and said, at paragraph 20 of the sentencing remarks."

In the case of Yaldiz, Winneke, A.C.J. referred to Tsiaras and other authorities and stated at p.383 at paragraph 5:

"It is true that the courts in those cases expressed the view that serious psychiatric illness falling short of legal insanity is relevant to sentencing because, inter alia, a person suffering from such an illness is not an appropriate vehicle for general deterrence ... But it must be remembered that in each of the cases to which I have referred the accused was suffering either from schizophrenia or a schizophrenic-type illness which obscured the mental intent to commit the crime with which he had been charged. It is not appropriate to simply fasten on the words 'recognised psychiatric disorder' and then, without reference to the symptoms and consequences of that disorder to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its affect upon the mental capacity of the accused."

47 In the case of R v. Vodopic[9], an unreported decision of the Court of Appeal, Eames, J.A., with whom Winneke, A.C.J. and Phillips, J.A. agreed, commented upon a case in which the offender suffered from a "significant personality dysfunction". Eames, J.A. stated at paragraph 28:

"Even if the personality dysfunction identified here was to be regarded as a psychiatric illness, which had not been established, it falls far short of the kind of illness discussed in Tsiaras. If it is to be regarded as ameliorating the need for general deterrence, then the symptoms and consequences of such disorder must be clearly explained and related to the offending conduct so as to explain how that disorder bore upon the moral culpability of the appellant in committing the offences: see R v. Yaldiz. In this case there was simply no evidence, and thus no reason for the judge to conclude that the personality disorder was a relevant factor reducing the seriousness of the offences and the moral culpability of the appellant in her participation therein."

48 The authorities I have referred to make it clear that it is not sufficient to label your depression as serious in order to invoke the principles stated in Tsiaras with respect to general deterrence. There must be coherent and persuasive evidence of the link between this condition and your responsibility for your actions.

49 If, as I have concluded, Dr Walton's opinion as to the probability of mental impairment at the time of your offence must be rejected, and the opinion of Dr Forrester is accepted, as I am satisfied it should be, then there is no evidence that at the time of your offence your depressive condition obscured the mental intent to commit the crime.

50 Further, the nature and severity of your depression and its effect upon your mental capacity at the time were not such as to wholly eliminate general deterrence as an appropriate purpose of punishment or, in my view, to substantially eliminate it. In particular, the fact that your depression may be regarded as serious because it has been protracted, and the fact that it has involved suicidal impulses, do not bear upon your responsibility for the killing of your wife. The fact that you suffered from extreme emotions associated with a depressive state is, however, itself a relevant factor to the extent to which you can be regarded as a vehicle for general deterrence. Having said that, it cannot be regarded as either materially reducing the seriousness of your offence or your moral culpability with respect to it. It accordingly justifies some muting of the relevance of general deterrence but no more.

51 Turning to the issue of specific deterrence, I accept that this issue is not of great significance in your case. It is apparent that you have no prior convictions and that your actions were the product of the breakdown of a long-standing individual relationship. I further accept Dr Walton's evidence that you have since the offence been a model prisoner.

52 Turning to the question of the effect your depressive condition will have upon the hardship resulting from a custodial sentence. It is probable on the evidence that your despair and remorse will be significant wherever you are situated. Nevertheless, as I have already stated, I do accept that as a result of your depressive condition it is likely that you will be held in stricter security and more restrictive conditions than would otherwise be the case during a custodial sentence. I also accept that your ongoing depressive condition may well aggravate the burden of loss of liberty which a custodial sentence will entail.

53 Putting the above matters together, it can be seen that the fact of your depressive condition at the time of your offence and the fact of its continuation to date and likely continuation into the future lead to the conclusion that there should be some sensible moderation of your sentence but do not materially reduce your moral culpability or render the issue of general deterrence substantially irrelevant.

54 Mr Gemmill, as a result of the murder of your wife you now confront the ruin of your own life. Despite the continuing support of your extended family and others in your community, you have destroyed your own immediate family. You have killed your wife and, in all probability, irrevocably damaged your relationship with your sons. You have also brought a long-standing, honourable reputation and place in the community into disgrace.

55 The victim impact statements which have been tendered in the present case spell out the consequential suffering which you have caused to your wife's sister and to your sons. The role of victim impact statements was described by Vincent, J. in R v. Beckett[10] as follows:

"They draw to the attention of the judge who would of necessity have to consider the possible consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it."

56 It is clear that Robyn's death has caused great emotional pain to her sister and to your sons. It is also clear that your sons have not only lost their mother, but, in effect, have lost the father they respected and relied upon. The victim impact statements are most moving and impressive documents which amplify the personal suffering you have inflicted.

57 Having regard to all of the above matters, I have reached the following conclusion. It is incumbent upon me to express the condemnation of the community with respect to your conduct and to punish you to an extent and in a manner which is just in all the circumstances. The court has a duty in the imposition of an appropriate sentence to uphold the sanctity of human life and to deter persons who by resorting to violence destroy such life. There must never be any doubt about the commitment of the community, and the court through which it speaks, to defend the importance of human life with the imposition of substantial penalties where an offender kills another member of the community with murderous intent and without lawful justification or excuse.

58 There are aspects of the circumstances of your case which must be regarded as aggravating your offence. Chief amongst these are those relating to the cowardly, brutal, ferocious, determined and protracted attack which you made upon an unarmed woman utilising both superior physical strength and a series of knives. You resorted to brutality and violence to give vent to your own emotions. Male violence of this sort cannot be condoned by our community. It is not uncommon for men to feel anger towards women who reject or otherwise disappoint them, however, personal disappointment and the breakdown of relationships can never justify violence of any sort, let alone the brutal taking of another person's life when that person has been a partner for many years.

59 On the other hand, there are some circumstances which can be identified as partly reducing your culpability. As I have said, there is no evidence that the murder was premeditated and I am satisfied that it is probable that you acted in a state of extreme emotional distress arising out of the collapse of your marriage.

60 Turning to your personal circumstances, I accept that prior to this offence you had no convictions and had led an exemplary life demonstrating good character in your business, sporting and social relationships.

61 I also accept that you suffer from continuing anguish and remorse in relation to your conduct and the collapse of your life, although, as I have stated, I am not satisfied that you accept full responsibility for your actions.

62 It is appropriate to sensibly moderate the sentence which I would otherwise impose, having regard to the depressive condition from which you suffered at the time of the offence, and from which you continue to suffer, although to a lesser extent. This condition does bear on the moral culpability of your offence to some extent. It also bears upon the likely conditions in which you will serve a custodial sentence and the extent to which your sentence can be regarded as an appropriate vehicle for general deterrence and the burden which imprisonment is likely to impose upon you.

63 Mr Gemmill, having regard to the above matters and to the considerations set out in s.5 of the Sentencing Act 1991, I sentence you to a term of 18 years' imprisonment for the murder of Robyn Ann Gemmill. I fix a non-parole period of 14 years. I declare pursuant to s.18(4) of the Sentencing Act that you have already served a period of 879 days in custody.

[1] [2001] HCA 67; (2001) 209 CLR 1

[2] [1999] HCA 54; (1999) 199 CLR 270

[3] [1998] 1 VR 359 at 369

[4] [1996] VicRp 26; [1996] 1 VR 398

[5] [2000] VSCA 59; (2000) 112 A Crim R 307

[6] (1992) 64 A Crim R 244 at 245-255

[7] [1998] 2 VR 1 at 10

[8] [1998] 2 VR 376 at 381

[9] [2003] VSCA 172 (unreported, 29 October 2003)

[10] [1998] VSC 219 (unreported, 20 August 1998)