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2 It is the Crown case that the accused arranged with Ms Lorelle Makin, (the deceased), who was a sales consultant with Elders Real Estate, Melton, to show him a vacant house at Milverton Street, Melton. On 15 September 2005, after meeting the deceased at those premises, he raped her, having placed some Sellotape over her mouth. He then strangled her.

3 The post-mortem findings were consistent both with sexual interference and manual neck compression. So far as the rape was alleged to have been pre-planned, the Crown point to the fact that in arranging to meet the deceased, the accused rang her from a public phone box, despite access to his mobile phones and landline, and that, having travelled to the Melton area he parked his motor vehicle at Hannah Watts Park, a considerable distance from the Milverton Street property which he then approached on foot.

4 After the attack, which occurred in the upstairs area of the premises, the accused placed the deceased face-down in the bath, partially covering her with black plastic. The accused also cleaned up the bathroom area. This included washing blood from the deceased, using the bath tap. He then left the property, driving the deceased's vehicle to an area near where he had originally parked.

5 The accused was ultimately arrested at 12.40 p.m. on 16 September and subsequently made a video taped record of interview. In that interview he admitted going to the Milverton Street premises, meeting the deceased, and having exploded in a sudden burst of anger, putting a choke on her neck. (I paraphrase his words.) He spoke of a struggle at the top of the stairs and claimed that because of the friction of the struggle, he had an erection. The accused further stated that he thought he tried to rape the deceased in the bathroom near the bathtub.

6 He told the investigating police that he grabbed a roll of tape from the bathroom bench and put it around the deceased's mouth, because he was scared that she was going to scream. He describing putting the deceased over the bathtub, stripping her and trying to rape her. The accused disclaimed any sexual attraction and attributed his actions to anger. Although he had made a movement with his hips to effect penetration, the accused claimed that he had, by this stage, lost his erection.

7 The injuries observed by the pathologist, Dr Malcolm Dodd, are consistent with sexual interference to the genitalia and manual neck compression, the latter being the attributed cause of death. Further, bruising to the left upper thigh and both the left and right superior anterior iliac spines, being the bony prominences at the front of the pelvis and hip level, are consistent, according to the evidence of the forensic physician, Dr Maurice Odell, with a person being bent forward and contacting a rigid object such as the side of a bath (page 23 of the transcript). It was also Dr Odell's evidence that the discrete haemorrhage to the right labia minora was the result of blunt impact, or pressure, and could only have been caused by penetration, in the legal sense. Dr Odell stated that the most common cause of that injury would be sexual activity, and moreover, it was an injury that was unlikely to have been caused in the course of a struggle (transcript p.21 and 22).

8 Apart from telling the police of his efforts to clean up the scene and his manner of leaving the premises to which I have already referred, the accused described disposing of the deceased's clothes in a bin near the Highpoint Shopping Centre. He also indicated that he had later deposited his own clothing, worn at the time of the offence, in a bin located at a Wilson's Car Park. He said that he was aware that there was blood on them.

9 In the period of time prior to his arrest, the accused did a number of other things. For present purposes, these included several telephone calls to his former partner, Marie Swan, on the afternoon and evening of 15 September, telling her that he had just snapped and done something terrible. He said that the real estate agent who showed him the house was like her, and after she had said something to him which he could not remember, he became uncontrollably angry. He said that at that point he was choking her. His conversation also suggested that he knew Ms Makin was dead. The accused also said that he was leaving items in his car for Ms Swan and their daughter. In a further telephone conversation on the following morning, 16 September, Ms Swan reiterated earlier advice she had given the accused that he should go to the police.

10 The accused also rang his mother in China and discussed his predicament.

11 Further, he took a taxi to Tullamarine Airport, together with a suitcase of his belongings. The gist of the accused's account about this in the record of interview was that he intended to fly out of Victoria, but was dissuaded form that course by his mother and returned to the CBD.

12 During the subsequent investigation the police located a video tape of an Internet site depicting a blonde female performing explicit sexual acts upon herself, together with further video footage of the accused having sexual intercourse at his Sydenham unit with a woman who apparently was a prostitute.

13 Additionally, a computer hard drive seized from that address contained a plethora of sexual images downloaded from various sites, which may generally be described as pornographic.

14 Finally, emails were obtained which demonstrated contact between the accused and Elders Real Estate Agency, Melton. One such email indicated that the accused had previously met with the deceased in June 2005 for the purposes of inspecting a house.

15 In the course of legal argument a number of issues of admissibility were resolved, and I will deal only with those that remain. I will do so generally in the sequence in which they were raised by counsel.

16 Further, I approach the submissions on the basis there is no formal defence admission which may be placed before the jury that the accused killed Ms Makin, and, further, that the Crown is not obliged to accept all of the account of the accused in the record of interview as true, reliable and accurate. Nor is the Crown limited by the terms of the record of interview in the evidentiary material it seeks to place before a jury. The Crown is required to prove the elements of the offences charged beyond reasonable doubt. One factor upon which it may seek to rely in accomplishing this task is the out of court statements made by an accused person which may constitute admissions against interest. However, that is only one portion of the evidence which the Crown may adduce.

17 I turn to the individual items. First, I regard the results of the DNA testing as relevant, not only because that evidence places the accused and the deceased in close proximity, but specifically it has relevance to the count of rape and the issues of erection and ejaculation and their timing. However, the DNA evidence can be elicited without the tendering of the actual mortuary samples.

18 Secondly, those items of clothing upon which there was semen and/or blood, attributable to the accused and the deceased respectively, and which were disposed of at Wilson's Parking, are relevant and admissible exhibits. To admit those items but exclude the bags in which they were contained would be an artificial and purposeless exercise.

19 Thirdly, the latex gloves found in the car park are not admissible. There is nothing whatsoever to link them to the offence, despite the Crown theory that the accused took them to the crime scene. Forensically they cannot be connected with the scene of the killing, and the accused was never questioned about their origin and use.

20 The finding of only one fingerprint at the scene, namely a left palm print of the accused on the bathtub does not properly found an inference that this was the result of his wearing gloves. Particularly is this so when there is evidence of his endeavours, including the use of water, to cleanse the scene. Neither is the fact that the gloves were among items thrown away in the car park sufficient to create the necessary evidentiary nexus. A number of items, not apparently involved in any crime, were also the subject of such disposal.

21 It is not necessary to invoke the principles in Thompson & Wran[1] to arrive at this conclusion, although that authority tends to strengthen it.

22 Fourthly, the same arguments apply to the packet of cable ties. There is no forensic link to the crime scene or the deceased. In my view it would be sheer speculation rather than an inference properly drawn to conclude that they were taken to the Milverton Street property. Accordingly I rule that this item is not admissible.

23 Fifthly, the roll of cellotape found amongst the items disposed of by the accused at the Wilson Car Park, and the roll of tape located at Milverton Street are both prima facie admissible in evidence. According to the police evidence both were capable of being used to gag the deceased, so to that extent here is a potential forensic link to the crime. This evidence also needs to be seen in the context of the accused's account in his record of interview, asserted by the Crown to be untrue, that he obtained the tape from the upstairs bathroom of the house.

24 The acceptance by a jury that this is a lying account, coupled, in this instance, with the disposition of an item of a nature linked to the crime, may found an inference that the accused took the tape with him to the premises. Ultimately that is a jury question.

25 However, I do not regard the pristine roll of tape or the box of latex gloves found at the accused's unit to have the requisite relevance to warrant their admissibility.

26 Sixthly, it was not pressed by the defence that the Express Telegraph Property Guide found inside a white tub in the accused's motor car was not relevant. Indeed it had originally belonged to the deceased and, hence, linked the pair together.

27 It was, however, argued that the framed photograph of the accused's former partner had no relevance. The Crown contention was that this photograph exemplified the accused's obsession with women of similar appearance to Ms Swan. In my view, there is nothing of substance in the materials to bear out this assertion, and on that ground alone this item is irrelevant.

28 Seventh, it was submitted that the so-called emails of interest between the accused and Elders Real Estate, Melton, had no relevance to this case, either in terms of the time frame of those involving Ms Makin, namely July/August 2005, or because of some involved another employee of Elders, a Ms Julie May.

29 In my view, the emails are relevant, both as showing the accused's awareness of the inspection system and as to his prior contact with the deceased. These are circumstances which a jury is entitled to take into account, in considering the Crown contention that the rape was premeditated.

30 Apart from the relevance I have already attributed to a number of these items, there remains the issue of consciousness of guilt.

31 The Crown submits that post-conduct behaviour such as the disposal by the accused of his own clothing and that of the deceased, his conversation with his mother, his actions in contemplation of flight, including taking a suitcase to the airport, evince a consciousness of guilt.

32 In my view, the actions of the accused in relation to the items I have ruled to be admissible and these actions are capable of raising the concept of consciousness of guilt.

33 At this stage of the proceedings I make this ruling on the basis of a present lack of precision as to precisely how the issues between the parties are to be joined. However, having regard to the decision in R v Heyes[2] and the circumstances of this case, where the both offences or murder and rape are alleged with attempted rape manslaughter as potential alternatives, such consciousness can go no further than guilt of unlawful conduct. (See the judgment of Buchanan JA at paragraph 50 and following.)

34 Finally, I turn to the question of the admissibility of the pornographic material.

35 In relation to the pornography found on the internet, the Crown submission was that the accused planned to act out sexual activities that he had viewed the previous evening. It was pointed out that the deceased was gagged, her lower clothing removed and her upper garments pulled up, exposing her breasts. Moreover, it was asserted that the women involved were, like the deceased, blonde and older than the accused.

36 There were ten downloaded video clips that the Crown sought to tender. In fact, nine of them related to 14 September and one was downloaded at an earlier date, 10 September.

37 From a purely factual perspective the Crown assertion is not borne out. Almost all of the images depict dark-haired women of similar or younger age to the accused. In eight of the ten clips the women appear to be gagged, but that is the only resemblance to the present case. Further, it must be recognised that in the instant case the accused proffers an explanation for the application of the gag, namely to prevent the deceased screaming.

38 It was not suggested to him that his manoeuvre represented the acting out of a pornographic video fantasy. Indeed the accused was never interviewed about the video clips and their relationship, if any, to the crime of rape.

39 Apart from the use of the gag, there was no similarity to the various activities depicted in the video clips, and it is perhaps trite to note that the removal or disruption of garments in the pursuit of sexual activity is commonplace. But that is not all. The nine items viewed by the accused on 14 September and selected by the Crown constitute only part of the 31 clips accessed by the accused on that evening. The others may be compendiously described as a representative sample of all types of pornographic heterosexual exploits.

40 Given the quantity of material collected, including video clips downloaded on other dates, there can be little doubt that the accused had a very great interest in matters sexual. But in my view there is no clear and discernible link between that state of mind and the accused's actions giving rise to the charge of rape.

41 In the course of argument, I asked counsel for the Crown if there was any authority for the use of this material in the manner contended. I was referred to R v Koeleman[3], where a homosexual killing by a stabbing, perpetrated during the course of oral sex, was said to have been inspired by viewing the film "Cruising". It was, however, the accused's attribution of his actions to the influence of that movie that made the evidence about the film relevant and admissible. That is a far cry from the present case.

42 An examination of authorities (which appear to relate specifically to offences of paedophilia) disclose that more than mere propensity is required to make this type of evidence admissible.

43 In R v Gawne[4], the Victorian Court of Criminal Appeal ruled that evidence of the possession by a school teacher of homosexual publications, which otherwise played no role in alleged homosexual acts by him against his pupils, should not have been admitted into evidence. Equally inadmissible was his admission that he was a homosexual. It was held that such evidence established no more than a propensity for homosexuality on the part of the appellant.

44 Where the nexus goes beyond mere propensity the result may be different. For example, in R v Gordon & Gordon[5], a male and female accused faced numerous charges of sexual assault upon the female accused's seven year old son. The complainant's evidence was uncorroborated, and the accused not only denied any impropriety, but asserted that the boy had been induced and manipulated into making the allegations at the behest of a third party seeking his custody. In the course of his evidence the complainant attested to having been shown photographs of both the accused performing sexual acts, as well as two dildos. These items had, in fact, been found in the possession of the accused, but had not been used in the commission of the offences.

45 The New South Wales Court of Criminal Appeal upheld the admission into evidence of both the photographs and the dildos, notwithstanding a suggestion of propensity, as corroborative of the complainant's testimony, and in tending to refute the allegation that he had been coached.

46 Similarly, in R v Jolly[6], the accused had been charged with sexual offences against a ten year old girl. One count related to the taking of indecent photographs of the complainant by the accused. The trial judge admitted 96 photographs taken by the accused of other young children in various states of undress, many of which photographs focused on their genitalia. The Victorian Court of Appeal upheld the decision of the trial judge, holding that the probative value of the photographs lay in the improbability that the complainant would depose to photographs being taken of her of such a similar nature unless she had, in fact, been so photographed. Absent concoction, the photographs also provided corroboration of the complainant's evidence and tended to rebut any suggestion of innocent association.

47 In the leading judgment, Kenny JA, noted (at p.499):