70 "G" asked the applicant why he had killed his aunt. He responded that he was in debt and that he owed money to her. He did not want to pay her back on a monthly basis. He said that he had next to no cash because he would gamble it away at the Casino. He said that he believed that he was a beneficiary of the deceased's will but he did not know for sure if that was the case. He said that all he knew was that the house had been sold, but no will had been found and, as he was not a blood relative, he would not have a claim. The applicant said that he thought that he would benefit from the will as well as eliminating the debt that he owed to the deceased. The applicant stated that he had answered police questions, but had refused to provide his DNA. The applicant related to "G" what he recalled the police had asked him and what he had told them. They discussed any possible loose ends, such as whether or not the deceased might have told someone else that the applicant was due to come around on the Sunday. They discussed whether or not a girlfriend could provide an alibi for him. The applicant said that he did not have a girlfriend and admitted that he was homosexual which the police had also ascertained. "G" said that they could come up with "a bloke". The applicant said that he would have to be Asian because the police knew that he likes Asian men.
71 They went through all the details which the applicant stated he could remember in order to ascertain whether there was anything else that could implicate him. The applicant said that the hammer was taken from his flatmate who may not yet have noticed that it was missing. In any event, he had not said anything about its absence. The applicant described the hammer as rusty and with a black rubber covered handle with air holes. He made a drawing to indicate its size and shape.
72 "G" said he had to make some calls and suggested that the applicant go with "R" for coffee, while he would try to clear up the matter as soon as possible. Upon being summoned by telephone, "A" and "R" returned to the hotel room. "G" confirmed he had some calls to make, instructing them that there was to be no drinking of alcohol as they had a "big job on" that night. "R" and the applicant left.
73 The applicant was taken down to a bar[29] where he said to "R", "look don't get me wrong, you know it's the only lie I've given you". "R" responded "sorry mate". The applicant said, "It's the only lie". He replied, "You've never lied to me, mate". "R" gave evidence that he noticed that the applicant had a look of disappointment in his eyes as though he had breached "R's" trust in him.
74 They sat in the lounge and the applicant commenced to relate what he told "G". He said that one reason for leaving the door of his aunt's unit open was that had he left it locked, it would have shown that someone who knew her had gained access. He told "R" that he kept a journal of all the police contacts he had had and that it was saved onto a CD in a file, which was password protected. "R" repeatedly suggested that the CD should be put in a security box. The applicant said that he had the CD in his briefcase. He said that he never kept it at home, as his home had been searched while he was at work. He also kept his passport in the briefcase in case the police wanted to take it from him. The applicant expressed enthusiasm at the prospect of joining the crew and having his problems resolved. After receiving a telephone call from "A", "R" advised the applicant that "A" was coming back down. The applicant asked whether he was going to be taken back to the room, commenting that he had been searched when he went there previously. "R" said that they had to make sure that he was not recording anything.
75 "A" and "R" took the applicant back to the hotel room and he was again left alone with "G". "G" asked him with what he had cut up his clothing. The applicant said that he used scissors and "G" asked where they were. The applicant said, "Shit they're still at home, yeah, in "R's" St Kilda apartment". "G" suggested that he go there with "R" to pick up the scissors and the car rental receipt. "G" asked the applicant whether he ransacked the premises "just a little bit or a lot". The applicant said, "the bedroom was totally topped over".
76 "G" asked about the Saturday night before the murder, reminding the applicant that he had said something about what happened after he had made the telephone call. The applicant said that he had gone home and that his friend, Dean Vlek, picked him up and they went to a movie. He said that the police had taken a statement from him, expressing some concern as to what might be in it. "G" told the applicant that he was to go with "R" back to the apartment to pick up the scissors. He also said that he then required the applicant to meet the corrupt police officer who had "something" for him.
77 When "R" and "A" returned to the hotel room, "G" instructed "R" to take the applicant to the apartment as there were a pair of scissors and some paper work there that they needed to collect. "G" then directed that they meet the corrupt policeman (identified as the "grey headed bloke") behind the "cop shop". They discussed how long the trip to the apartment would take, so they could estimate when they would reach the rear of the St Kilda Road Police Complex[30].
78 "R" asked what the applicant had done with his clothes. The applicant started to relate what he had done with them and relayed questions that "G" had asked, such as what Council collected the rubbish. He told "R" that he had approached the deceased from behind and "gave her a big whack behind the head". He said that he had been told that the first blow had killed her. He said that he hit her another five times. He then hit her on the throat another six times to make sure that she was dead, using his hands and body to demonstrate the manner in which he hit the deceased with both hands, grasping the hammer and bringing it down from above down to head height. He said that he removed the rings from the deceased's fingers to make it look like a burglary. The applicant repeated many of the details that he had given to "G". He noted that there would be no problem with fingerprints on the cheque he had banked because he had told the police that his aunt handed it to him on Friday 5 April. He then realised that he had dated the cheque two days later when he filled it out.
79 According to "R", while in the apartment, the applicant was in a state of agitation as he searched for the car rental receipts, grabbing boxes and ripping them open. He was sorting through papers with sweat starting to pour off his brow, when he found two "Rent-a-Bomb" receipts and handed them to "R". "R" noticed a newspaper cutting on the couch which he picked up. It referred to a number of murders that had occurred over the previous year or two. He enquired "Which one was it?" whereupon the applicant pointed out the deceased's name.
80 After recovering the scissors and the receipts, the two men drove to the rear of the St Kilda Road Police Complex where the Informant approached and arrested the applicant.
81 Shortly afterwards, a tape recorded interview was conducted. The applicant agreed that he had been previously interviewed on 6 May 2002 and stated that everything he had told the police in the previous interview was true. The interview was suspended for a short period. When it recommenced, part of a video recording of the applicant's meeting with "G" earlier that day was played back to him. He maintained that he had nothing to add to what he had said on 6 May 2002. A further portion of the video tape of the conversation between the applicant and "G" was played. It was then formally put to the applicant that he had murdered the deceased which he denied.
Other Evidence
82 Zheng-Macdonald recalled the police attending at 80 Carmichael Road and asking him whether there were any tools missing from the house. At that time Zheng-Macdonald advised that he did not think that there were any. When they returned at a later time they enquired as to whether he had a missing hammer. He recalled that he had not seen the black rubber handled hammer for a long time and checked through his tool boxes and the garage. He could not find it. Zheng-Macdonald usually kept the hammer on a shelf in his office, which was accessible from the kitchen of the house and was not locked. Zheng-Macdonald stated that it was an old hammer, in "average condition" and not particularly rusty.
83 James O'Neill, the uncle of the applicant, the son of the deceased's brother, Paul O'Neill, and half brother to Debra Marks, stated that he first learnt that the weapon used to kill the deceased was a hammer after the applicant had been arrested and charged. He recalled a telephone conversation with his half sister, Marks. The discussion they had did not include any mention or reference to the alleged weapon being a hammer. He stated that he found this out from his wife who had been present at his parent's home when the Informant visited them after the applicant's arrest[31].
Course Adopted by Defence at Trial
84 The applicant gave evidence and called four witnesses, namely Debra Marks, Toby Marks, Samantha Marks and a psychologist, Jeffrey Cummins.
The Applicant's Evidence
Evidence- in-Chief
85 The applicant stated that he was aged 28, having been born in September 1976. He said that he considered the deceased to be his aunt, although she was not a blood relative.
86 He outlined his early years which he indicated were difficult, and a prior criminal history that involved offences of dishonesty but none for violence.
87 The applicant denied killing the deceased. When counsel asked him why he confessed to "G" that he had done so, he said that his life had been made a misery by the Homicide Squad detectives, including Buick. His small circle of friends and acquaintances had been contacted by the police and told that he was a suspect for murder. As a result, most of those people deserted him.
88 The applicant said he was advised of the deceased's death by his mother, after which he discussed the circumstances with other members of his family. During the period between 17 April and 1 May, he was following the news of the investigation in the newspapers and had conversations with family members. The applicant referred to the arrangements that were made for him to attend the Oakleigh Police Station on the morning of 6 May where he was met by Homicide Squad officers who then took approximately 12 minutes to drive from the police station to Carmichael Road. It would ordinarily take about 5 minutes for this journey, he said. En route the officers were enquiring about any money that he may have borrowed from the deceased and they stopped the car a couple of times. They indicated they had a search warrant and he had said, "Fair enough, let's get it over and done with." He stated that there were occasions when he was in the car that he felt somewhat intimidated by them.
89 On arrival at Carmichael Road he was met by other police officers, including Buick. This was the first time that he had met him. During the search of the premises, various items, including his computer and CDs, were taken from his bedroom. He was then taken to the Homicide Squad offices at the St Kilda Road Police Complex. Thereafter he was formally interviewed but was not charged. He was told that the police would make further inquiries and that he would be contacted in the not too distant future.
90 The applicant stated that, when he was escorted from the Homicide Squad offices to the front door by Buick and another policeman whose name he did not recall, the other detective said to him, "Look, we know you did it, why don't you come back in and do this interview the proper way, where you admit to killing Margaret." He said he had responded, "I didn't kill Margaret." He was then told, "Don't worry, we know where you live and we'll be in contact soon." The applicant said that it made him feel quite upset that they thought he was the one who committed the murder and it made him quite anxious.
91 The applicant agreed that from time to time he would ring Buick to inquire about the return of his computer. Buick would then contact him. On 15 May, Buick rang him at home at around midnight. He said the computer and CDs would probably be returned within two weeks and he wanted to know which was the more important and which he wanted back first, the computer or the CDs. As it transpired, neither were returned within the time indicated. At the time of this call the applicant said he was asleep in bed and he was quite annoyed about the incident.
92 Reference was made to some other police members calling on Zheng-Macdonald, on 18 June 2002, and taking a statement from him. That evening Zheng-Macdonald conveyed to the applicant that the police had made statements to the effect of "We wouldn't live with a cold-blooded murderer. Why do you still have him as a tenant at your house? How can you sleep at night knowing you have a cold-blooded murderer living with you?" The applicant stated that he felt distressed by what had been said and thought he could have lost Zheng-McDonald in consequence. It disturbed him that the police were still persisting with the assertion that he was responsible for his aunt's death.
93 The applicant agreed that he had significant debts at that time in addition to approximately $25,000 that he owed to the deceased.
94 The applicant was then taken by his counsel to his initial contacts with "R", and confirmed that he was told about an apartment, taken to look at it, and handed the keys. He said that no one had ever given him access to a fully furnished rent free apartment before. In return, all he was expected to do was to collect "R's" mail and let him know that it had arrived.
95 Soon, however, it became abundantly clear that "R" was part of a gang engaged in criminal activities.
96 In the eight days following 22 October, he met with "R" on four occasions to do "jobs" of one type or another. By 30 October he had completed money collections and gone to the St Kilda Road Police Complex where he saw "H"[32]. On the first occasion, he initially refused the $100 payment for his services, but was convinced by "R" to take it. By that time he understood "R" to be a member of a larger crime gang. In one telephone conversation with Vlek and prior to meeting "R", the applicant told him that he was feeling suicidal. He was depressed because his friends and relatives had turned against him, and he thought that life was not worth living. After he met "R", those thoughts disappeared.
97 Over the five weeks of the scenarios, the applicant said that he believed that he had developed quite a strong friendship with "R", whom he regarded as quite an amazing person with a nice car, nice clothes, and an apartment he was prepared to offer rent-free. He appeared to enjoy a good lifestyle and the applicant aspired to be like him.
98 He described him to "G" at Crown Towers as being "like a mentor". By that expression the applicant indicated he meant someone who taught him the "ins and outs" of the criminal activity in which they were engaged.
99 He said that he wanted to feel accepted by this powerful group of people. He agreed he had been told by "R" that he did not have to participate in any of the activities in the scenarios and that he understood that he could walk away if he wished to. However he feared that if he refused to assist he would be rejected, first by "R", and secondly, by the other crew members.
100 The applicant acknowledged that he was told on a number of occasions that the crime gang had a creed of trust, honesty and loyalty. He understood that the members were loyal to each other and shared those core values. He believed that, if he was engaged as a member of the gang, the money that he would earn would be much larger than the $100 he was receiving each time he assisted "R" and the other members.
101 On 27 November he did not know, until he got into the car with "R", that he was going to be taken to see "G", who wanted to resolve some problems that had emerged. He understood that the issues were associated with the check being conducted into his background, because the Homicide Squad saw him as a suspect and there was concern that he would bring undue attention to the gang if he were to join them.
102 The applicant agreed he told "G" that he was keen to become a member and that he had previously expressed that desire to "R". "G" had said he wanted to "bring him on board" because he thought he held some value for the group and reference was made to his computer knowledge. Earlier, "R" had praised him, and when praised by any member of the gang, he felt that his efforts were regarded highly and that he was worthy of becoming one of them.
103 The applicant stated that "G" said to him "Look, you've got to tell me everything. You've got to tell me the duck's guts because if you don't, you're going to go down for this unless we fix it". The applicant said he understood "G" to be saying that it was "G's" belief that he had killed the deceased and that, if he said anything otherwise it would be a lie. He thought that, if he did not accept that he was responsible, he would no longer be seen as eligible to become a member of the crime gang. Further, because the room in which he spoke to "G" was reached via a lift and a swipe card, he felt he was being confined or detained, and under pressure to tell "G" what he wanted to hear. At one point in the interview he described how he wiped down the things in the deceased's unit and said "Just like you do when you're doing jobs". He was trying to show "G" that he, too, could be a careful person. He told "G" that he had killed the deceased, but that was not the truth.
Cross-examination
104 The applicant agreed that, in the period leading to the death of the deceased, he had a number of significant and long standing debts. He thought that he had four or five credit cards on which money was owing. He also had experienced a gambling problem for some five years and towards the latter part of 2001/2002 he was losing significant amounts at the Casino. At the same time his credit card debts were increasing because of the interest attracted by non-payment. Financial institutions were pursuing him for money and had contacted him by telephone and in writing. They had been requesting him to endeavour to come to arrangements whereby he could pay off his debts. He agreed he did not do so.
105 The applicant stated that he thought about becoming bankrupt but not, at any stage, about paying the money owing. He agreed he had an ability to pay some of his debts from his earnings of $500 to $600 a week, but did not see fit to do so. In fact, he agreed, he moved residences in order to evade the debts. When he moved from Glen Iris, he did not give any of his creditors his new residential address. He did that with the specific thought in mind that they would not be able to find him.
106 The applicant agreed that, at the same time, he had already borrowed $28,000 from the deceased with the claimed intent to pay off the debts. He agreed he did not use the money for the purpose and gambled approximately $25,000 that he received. He went to the Casino within days after the money was deposited into his account. He denied lying to his aunt and said that after he received the money he thought that he could do better by doubling it and thereby paying both debts. He lost the money, but did not ever tell her.
107 He agreed that he thought he was a beneficiary under the will of the deceased, but denied that was the reason he wanted to maintain a close relationship with her. He accepted that he told Vlek that he wanted to stay in her good books for that reason, but said this was said as a joke. It was put to the applicant that, on 24 December 2000, he said in a conversation on an internet chat line "I couldn't disappoint my aunt now, she's my goldmine." He said that he did not believe that he meant anything serious by it.
108 The applicant also agreed that the borrowing of the $28,000 was not the only time he had borrowed money from the deceased, as he had borrowed $3,000 from her in order to repossess his car on one occasion. He said that there was also the occasion of the $4,000 cheque.
109 The applicant said that he had spoken to his mother on a number of occasions about the deceased's death. It was she who had informed him that his aunt had been killed. He denied that he lied about a conversation with his mother in which she told him that a hammer was used to kill the deceased.
110 The applicant was taken by the prosecutor to a monitored conversation between his mother and himself on 18 May in which she recounted what Buick had told her. It was put that this conversation occurred at a time after the applicant's mother had heard from James O'Neill, and that his mother said that the police were not telling them anything. The applicant responded that, if that was in the transcript of the conversation, he agreed. Similarly he was referred to a passage where his mother was relaying to him Buick's statement to the effect that the police had not found a murder weapon and did not know what was used to kill the deceased. The applicant agreed that that was what she relayed to him. However, he said at some point that she did tell him that a hammer was used. He agreed that this statement of his mother did not appear in any of the transcripts of the telephone intercepts, but he offered the explanation that the statement might have been made on an occasion when he called her from work or met with her in person.
111 He was then taken to a conversation with a friend, David Stephens, on 20 May, in which the applicant used the words "unidentified object" with respect to the murder weapon. He did not dispute the conversation occurred and agreed that the newspapers did not mention any specific weapon.
112 The applicant was then taken to a conversation on 29 May in the course of which his mother had said to him, "They're keeping it up close to their chest and they tell you nothing." The applicant again said that, if that passage was recorded in the transcript, he did not dispute it. In that same conversation his mother quoted Buick as saying, "They'll never find the murder weapon" and later, "They'll never find it, and they already told me that, and they have not got it. They don't know what it was that was used." Again the applicant said that if that appeared in the transcript, he did not dispute it.
113 He agreed that in the recorded conversations, his mother at no stage said that a hammer was used, but he reiterated that he did recall having a conversation with her in which she mentioned a hammer. As to where and when that conversation occurred, he said that he did not know, nor did he know from where she indicated she had acquired this information. When further questioned as to when that conversation may have occurred, he stated that he believed it was May, having heard the evidence of James O'Neill, but then he agreed that O'Neill had denied that he ever told his mother about a hammer.
114 The applicant accepted that at the time he met "R", he did not have a gambling problem, and in the period of the four or five weeks he was acquainted with "R", he had only been to the Casino about once or twice. He agreed that when he first met "R" he got on well with him and he was someone he liked from the beginning. From the time of the first scenario, he participated willingly in the purported criminal activity. His reasons for doing so were the desire for the money, the excitement associated with participation and his friendship with "R". At no stage did he ever suggest to "R" that he had any hesitation about what was being done.
115 It became clear the criminal gang was based on trust, honestly and loyalty between each of the gang members and the crime boss, "G". He was aware that there was a hierarchy in the gang and that "R" occupied a lowly position. In the days leading to 27 November, his state of mind was that he wanted to be part of the group and he was well aware that this could not occur unless background checks were conducted and accepted as satisfactory. The problem of the check was of concern to him. He agreed he became quiet and subdued on 27 November when "R" informed him that the check had not been completed. The fact that the police had visited his place of employment also concerned him. He was certainly troubled that the Homicide Squad may have had something implicating him. The applicant said he did not believe that he had any choice when he was picked up by "R" on 27 November and told that he was going to see "G". However, he agreed that he wanted the situation attended to and the check accepted as satisfactory.
116 He believed that whatever was wrong with the check could be fixed by "G". He trusted "G" and "R". "R" in particular had told him a number of times that things could be fixed if he told the truth. He was aware that there could be adverse consequences if he lied to "G" but said his view was that they would only follow if it was learned that he had not been truthful.
117 The applicant agreed that, when he was talking to "G", he was cautious and asked him if he was "wired". The reason that he made this enquiry, he said, was that, if the matter came before a court it would be apparent that what he was about to say could not be taken as reliable. The applicant denied that he had told the truth in that conversation. The information and details that he provided had been gleaned from the newspapers, from relatives, and from his police interview on 6 May 2002. He made up other details to add credibility to his version. He believed that "G" would be able to check them and verify that they were true.
118 He told "G" that the hammer which he said was used to kill the deceased belonged to his housemate, but denied that that was the truth. It was not true that he hit deceased a number of times with a hammer and ransacked the bedroom after he had killed her. Nor did he take jewellery from her. The applicant agreed that in the record of interview on 6 May he told police he could not remember his movements on the Sunday, and that was still the situation, even though he had told "G" that he visited the deceased during that day.
119 He told "G" that the killing happened at approximately 8.30 p.m. and the movie, "Star Wars", was starting. The applicant said that he had seen that movie on the Sunday, but not at the deceased's home. He said that just happened to be a piece of detail he had given "G" that was true.
120 He agreed he told "G" that he had put the plates that he had used in a plastic bag. He had heard the police evidence that there was nothing found in the kitchen bin other than a crumpled letter, but denied that he went through the kitchen bin. He said that he spoke to the deceased about that letter when he saw it on the Friday, but did not know when she would have put it in the bin.
121 The applicant agreed that he told "G" that he wrote a cheque for $4,000 and signed it. However he denied that he forged his aunt's signature or that he had the deceased's driver's licence for about a week.
122 He said that "G" had made it clear that he believed that he was guilty and he responded by telling "G" what he wanted to hear. The applicant gave him as much truthful detail as he could, so that when checked with the corrupt police member his version would appear to be reliable.
123 The applicant agreed that towards the end of his conversation with "G" he shook his hand but denied that he was relaxed. He agreed that he had asked "G", who he believed could bring the homicide investigation to an end, whether he could help with his problem.
124 The applicant denied recovering the scissors and the receipt from the flat because he believed that they could incriminate him. He said that "G" had asked him to get them and he agreed in order that they could be disposed of.
125 The applicant agreed that in the interval after his first conversation with "G" he told "R" that he had lied to him in saying that he had not killed the deceased. The applicant said he just told "G" he had committed the crime and he told "R", who was curious, the same thing.
126 The applicant agreed that on the way to St Kilda he was laughing and excited but it was not because he believed that "G" was going to help him get rid of some evidence. The applicant said he was actually quite anxious that "G" might find out that he had just lied.
127 The applicant agreed that he had told "R" that he had clubbed the deceased over the head whilst she was laughing, but he denied that that was the truth. The applicant said that he perceived three advantages in giving "G" the impression that he committed the crime. First, he could shed himself of the homicide investigation; second, he was going to get $12,000 from the security box; and third, he would be accepted into the crew and ultimately receive a larger share of their profits. The applicant said he feared losing the friendship of "R" and not being accepted by the group. When he was introduced to guns and the "bikie" scenario he experienced fear as he had never seen real guns before and he felt, from that point that he had no way of separating himself from the organisation.
Evidence of Other Witnesses
128 The applicant's mother, Debra Marks, stated that on the night of Friday 5 April 2002, the applicant came to her house for dinner with his brother Toby and his sister Samantha, after which they all went to Tullamarine Airport where Samantha and Toby caught a flight to Thailand. The applicant and Mrs Marks returned to her house to collect a desk. They then drove to his room in Oakleigh. She returned to her home in the early hours of Saturday 6 April. She stated that on that night the applicant was happy, "his usual self".
129 On 17 April 2002, Mrs Marks received a telephone call from her mother advising her of the deceased's death. She contacted the applicant and informed him of what she had been told. He was upset. Over the subsequent weeks, she was spoken to on a number of occasions by Detective Senior Constable Buick and made a statement on 8 May 2002 wherein she related the applicant's movements on 5 April 2002 and his reaction when she notified him of what had happened to his aunt.
130 Marks stated that on her birthday, 7 May 2002, Detectives Buick and Seel came to her home. They told her that they knew that the applicant was responsible for the murder and that she had to prepare her other children for the events that would follow. She told them of the applicant's history of earlier trouble with the police and his conviction. On that occasion, Buick told Mrs Marks that her son was homosexual. She had not previously known this.
131 Arrangements were made for her to attend at the St Kilda Road Police Complex on the following day to make a statement. When she did so, Buick again said that the police knew that the applicant was guilty and that she had to prepare her other two children for what would happen. After making her statement, she met with the applicant and they went out for a drink. She told him that she had made a formal statement and he advised her of what had been happening to him. He was upset that the police were saying that they knew that he had killed his aunt. He denied that he was responsible and said that he was the only suspect because he was the last known relative to see her.
132 On Thursday 16 May 2002 Mrs Marks received a telephone call from her brother, James O'Neill, who told her that Buick had said to him, "Imagine an elderly woman having her head smashed in by a hammer". When the telephone call was finished, Mrs Marks felt shocked and told her other son, Toby, about it. Mrs Marks mentioned this call to Samantha on the day that they celebrated Samantha's birthday, and she would have informed the applicant of what was said at a time between 16 May 2002 and Samantha's birthday on 26 May 2002.
133 Toby made a police statement on 27 May 2002 relating his own whereabouts at the time of the deceased's death. He stated that after he made the statement, Buick asked him whether he would inform the police if he knew who was responsible. He replied that he would. Buick then asked him whether, if he knew that his brother was the perpetrator, he would still come to the police. Toby said that he would do so straight away.
134 The applicant's sister, Samantha Marks, gave evidence that her birthday was on 26 May 2002. In mid May 2002, her mother telephoned her and told that she had had a telephone call from her brother, James O'Neill. Her mother said that James O'Neill had made the comment that the deceased's injuries had been caused by a hammer.
135 Cummins, a forensic psychologist, conducted a clinical and forensic assessment of the applicant. This involved two interviews, on 22 August 2004 and 3 September 2004 respectively. Between those interviews, he observed the applicant in court during a preliminary hearing[33]. Cummins examined the transcripts of the scenarios, including what occurred on 27 November 2002 as well as hearing and viewing the audio and video recordings of 27 November 2002. Cummins also had access to a July 2000 report concerning the applicant which was prepared by Ian Joblin, a forensic psychologist.
136 At his first interview on 22 August 2002, Cummins assessed the applicant as a very lonely person who felt abandoned and who had very low self-esteem. He concluded that the applicant was gambling at Crown Casino as a method of creating a feeling that he had friends. His history was consistent with the presence of a pathological gambling disorder. The witness made a provisional diagnosis of the presence of elements of borderline personality disorder and elements of inadequate personality or dependent personality disorder. These conclusions, he considered, were supported by information in Joblin's earlier report and reinforced when he interviewed the applicant again on 3 September 2004.
137 Cummins outlined the elements and effects of the disorders he had diagnosed. One possible effect, he said, is a feeling of abandonment, which could be real or imagined, but certainly would have felt real. In consequence the applicant may well have idealised the relationship between the covert operative, "R", and himself. In Cummins' view, his ready acceptance of the St Kilda apartment, after only his second meeting with "R", was the sort of impulsive or reckless behaviour in which a person suffering from these disorders was likely to engage. The applicant, he considered, suffered from an identity disturbance, and his self damaging impulsivity was manifested in his gambling disorder and in his sexual activities. Cummins did not ascribe any significance to the applicant's substance abuse, his suicidal thoughts or his recurrent suicidal behaviour.
The Case for the Prosecution
138 The prosecutor submitted that the applicant's confession should be accepted by the jury as truthful and there were other pieces of circumstantial evidence which linked him with the death of the deceased.
139 First, he argued that the applicant had a motive to kill his aunt. He had significant debts to various financial institutions which he was not prepared to pay. He had changed his residence in order to avoid his obligations. A default judgment was entered against the applicant on 5 April 2002 in the sum of $7,219.90. This was close in time to the killing. The applicant also owed approximately $28,000 to his aunt.
140 Under the arrangement that he had made with her, he was to make weekly payments of $100 to $200. However, in his confession to "G" he indicated that he killed her in order to avoid having to do so.
141 The death of his aunt also promised the benefit that he believed he would obtain under the will of a person to whom he referred as his "gold mine". According to Vlek, there were many conversations about this prospect, which included mention of the applicant's belief that he was the sole inheritor and that it was wise for him to remain in the deceased's favour.
142 The prosecutor drew attention to the cheque dated 5 April 2002. In the applicant's 6 May interview, he told the police that the last time he had seen his aunt was on 5 April. At that time, the applicant owed her approximately $31,000. He nevertheless asked to borrow more money from her and filled out a cheque which, he claimed, she signed in his presence. On the basis of the evidence of the handwriting expert, that was a lie as the signature was a simulation or forgery in his definite opinion. That opinion, the prosecutor pointed out, was not challenged in cross-examination. The prosecutor contended that the applicant lied about this matter because he appreciated that it incriminated him in the murder.
143 The next piece of circumstantial evidence, the prosecutor submitted, was to be found in the telephone records. The applicant claimed that the last time he contacted his aunt by phone was on the Friday before her death. In his evidence, he stated that he made calls from a telephone box outside a Milk Bar in Huntingdale Road, near the Princes Highway. The phone records for that particular box showed a call at 5.19 p.m. on 6 April 2002 to the deceased's phone, of approximately 25 minutes' duration. The prosecutor submitted that the jury should be satisfied that the applicant was the caller. It was significant, she argued, that two days later, on 8 April 2002, a call from that same public phone box was made to the applicant's father in Tungamah. Again, it was argued, the applicant lied to the police about making the Sunday afternoon call because of his awareness of its significance in the circumstances. The evidence about these phone calls, it was pointed out, was also significant in that it was what the applicant told "G" on 27 November.
144 With respect to the time of death of the deceased, the prosecutor put to the jury that there was an abundance of evidence that the deceased died on 7 April. One indication of the truth of this proposition was that no telephone calls were answered by her after that date. Another indication was her failure to collect her mail in the following week. The evidence from the official from Australia Post was that letters processed on 5 April would have been delivered on 8 April. There was also evidence of advertising material being delivered over the weekend of 6 and 7 April. More graphically, it was argued, the photographs of the 7 April TV guide showed markings that indicated that the deceased was alive at some time on the Sunday. Of significance on the TV guide was the entry relating to the movie, "Star Wars", scheduled for 8.30 p.m. on Channel 9. When confessing to the killing to "G", the applicant said that he killed his aunt at about 8.30 p.m. and that Star Wars was on. Further, when the police came to the house the TV was playing on Channel 9. By contrast, the applicant told the police, in both the 6 May and 27 November interviews, that he could not remember his movements on Sunday 7 April.
145 The prosecutor submitted that there could be no argument that the deceased was murdered, and that it was clear that the perpetrator was someone she knew. There was no sign of any forced entry and, according to Dr Heyes, she was killed in her chair. It was submitted that Dr Heyes' evidence concerning her observations of cast off bloodstains from an implement, was consistent with the applicant wielding a hammer in an arching motion. Dr Heyes was unable to say whether there would have been blood on the assailant's clothes, but the prosecutor submitted that the applicant told "G" that he had cut up his clothes and that this suggested there may have been blood on them.
146 It was clear, she continued, that the police suspected that the applicant was the killer when they interviewed him on 6 May. This led to the application for assistance from the covert unit. The operation subsequently mounted was undertaken by trained operators and was undoubtedly sophisticated. However, given the gruesome nature of this crime, what was done by the covert operatives could not be reasonably perceived as unfair.
147 The prosecutor submitted that the applicant, rather than being vulnerable and fragile, was intelligent, deceitful and cunning. With respect to the argument that the applicant was a "loner" who wanted to keep "R's" friendship, she argued that it was not realistic to think that, in order to keep that friendship, he would confess to the commission of such a terrible crime. The applicant, it was argued, was a willing and eager participant in the criminal activities of the gang from the beginning of his association with it. He viewed membership as providing access to easy money and he wanted the kind of better lifestyle he believed his new confederates could provide. It was made clear to him on many occasions that he was not expected or required to participate, but could do so if he was willing. There was no doubt, the prosecutor submitted, that he got on well with "R", but he knew, and was told repeatedly, that he had to disclose anything that could bring "heat" on the gang. The applicant, it was submitted, was told that virtually any problem could be handled, and he believed there was a corrupt police officer who could "make things go away". He had, in this situation, a powerful motivation to tell the truth. In relation to the evidence of Cummins, the prosecutor argued that whatever personality problem the applicant may have experienced, he knew he had to be honest when he spoke to "G".
148 The prosecutor questioned how realistic it was for someone to confess in such a detailed manner to such a gruesome crime committed against a person close to him, and yet not be telling the truth. In this context, she referred to the video footage which, she submitted, depicted the applicant's demeanour as relaxed but also cautious and intelligent when he queried if "G" was "wired". There was, she further submitted, no time, in the course of his interview with "G", for the applicant to invent an elaborate and detailed confession, and what he provided was a vivid description in which he demonstrated how he killed his aunt. It was submitted that only the killer would know exactly what type of murder weapon was employed. That information, the prosecutor submitted, was deliberately not released as Detective Senior Constable Buick indicated, and in any event, all the police knew after the autopsy was that the weapon was "something like a hammer". The fact that this information was not released to the media was confirmed by the newspaper cuttings and media releases tendered, and Paul O'Neill's statement that the family did not know a hammer was used until after the applicant was charged.
149 The prosecutor submitted that Debra Marks lied to protect her son when she claimed that she was told by Paul O'Neill on 16 May that the weapon was a hammer. Mrs Marks also claimed that she conveyed this information to her son on the home phone. However, it was clear that her evidence was not true as the phone was monitored and not only was there no mention of a hammer in the 18 May phone call to the applicant, but what Mrs Marks said was quite inconsistent with the possession by her of that knowledge. Indeed she told the applicant that Buick did not know the nature of the weapon used. On 29 May there was another conversation in which Mrs Marks made a statement to similar effect.
150 The prosecutor submitted that the reference by the applicant to a hammer was significant in more than one respect. He told "G" that he obtained it from a tool box in Zheng-Macdonald's study. Significantly, it was after the applicant's arrest that the police learned from Zheng-Macdonald that a hammer was missing.
151 Not only did the applicant know that it was a hammer that was used but he knew the deceased was struck with the flat end. This was consistent with the evidence of Professor Cordner. Although the applicant told "G" of six blows to the head, and six to the neck, a smaller number was given by Professor Cordner in evidence. The prosecutor argued that this was not surprising as the perpetrator of a frenzied attack might well not count the number of blows.
152 The defensive-type injuries to the hands were consistent with the deceased putting her hands to her head when being hit. Again, significantly, submitted the prosecutor, the applicant told "G" that when he hit the deceased on the head she raised her hands in this fashion.
153 The applicant told "G" that he pulled out the phone plug because of a missed phone call to his mobile on 7 April from his father. He did not take the call. This call from his father was confirmed by the telephone records as having occurred at 6.33 p.m. on 7 April.
154 The applicant also told "G" that he ransacked the bedroom to make it look like a burglary that had gone awry. The prosecutor pointed out that the bedroom was in fact ransacked and, as the applicant told "G", the mattress was moved off the bed.
155 The prosecutor drew attention to a portion of the confession to "G" in which the applicant referred to the movie, "Star Wars". It was submitted that only the killer would know on what channel the television receiver was set in the deceased's unit. The evidence was, the prosecutor submitted, that the deceased was covered with a doona. The applicant, it was submitted, referred to this item in various ways, including "blanket" and also spoke of covering the deceased's chest and legs. Since persons attending the scene had moved the doona, including Paul O'Neill, the applicant's account, argued the prosecutor, was not necessarily wrong.
156 As to how the applicant got home after the killing, he told "G" that he called a taxi from a public phone box. It was submitted that the time, destination and the name "Mark" found in the taxi records confirmed that the person who ordered the taxi was the applicant, albeit that he did not get into that particular cab.
157 In relation to his return to the premises, the applicant initially said that this occurred one week later on either the Saturday or Sunday. Then he was more precise, ultimately stating it was the day he hired the rental car. Significantly, the applicant still had the rental receipt which was dated 15 April. It was submitted that that was a further accurate account.
158 The applicant's claim that when he returned to the unit "it stank like hell" was also consistent with the independent evidence of paramedics and police.
159 The applicant's statement to "G" that he signed the cheque was consistent with the evidence of Black, as was his claim that he had the deceased's driver's licence. The applicant told the truth to "G" about what he owed to his aunt and gambling it away at the Casino. He told "G" he believed he was in the will, which was, again, counsel submitted, the truth. The applicant also told the truth about being picked up to go the movies by his friend, Vlek. He also told "G" the truth that he was homosexual, that he liked Asian males, that he had a journal of dealings with the police. He was also being truthful to "G" when he told him where he secured the hammer.
160 Moreover, the applicant essentially repeated much of the detail of his description of what occurred to "R". This included telling "R" that the deceased was laughing before he hit her over the head, and that he had no remorse. When talking to "R", the applicant was laughing, relieved and excited. Back at the St Kilda flat the applicant became panicked when he could not locate the receipt for the rental car.
161 As powerful as the confession was, it was not the only piece of evidence, the prosecutor submitted in conclusion. There was also the existence of a motive, the forged cheque and the Saturday night phone call, which were additional powerful pieces of evidence linking the applicant with the death of his aunt. Accordingly, submitted the prosecutor, the appropriate verdict was one of guilty.
The Case for the Defence
162 Counsel submitted that the Crown case depended upon the interview between the applicant and operative "G". The other matters to which reference was made by the prosecutor, including the cheque and the existence of a possible motive, were known to the police prior to 6 May 2002, and were clearly regarded as insufficient to justify the laying of a charge. The charge was only laid after the interview with "G", which counsel described as an interrogation.
163 The applicant had been experiencing financial problems for a considerable period of time. With respect to the debt to the deceased, he was paying interest, and an agreement had been reached about the repayment of the principal. He was under no particular pressure, at the time, that could be seen to have provided some incentive to act in the fashion alleged against him.
164 There was nothing sinister in any of the references by the applicant in conversations with Vlek to his aunt's wealth. Rather they were made in a jovial tone, and Vlek thought the applicant was close to his aunt.
165 In relation to the cheque for $4,000, even if the jury did conclude that the applicant forged his aunt's signature, it did not follow that he was responsible for her death. In any event the applicant maintained that the signature was genuine.
166 Insofar as the prosecution attempted to draw support from the telephone company records, the applicant told the police that he used a number of telephone boxes, including some in the city. The applicant at no stage said he only used the phone box referred to in those records. Even if the Crown argument was accepted that the applicant made the calls recorded, "so what?", counsel asked rhetorically, since there was nothing sinister about them. That information was in the Crown's possession prior to the covert operation being set in motion, and, of itself, was quite meaningless. It only could be regarded as sinister upon the assumption that the applicant was guilty, and could not assist in the determination of that question.
167 Counsel submitted that since the movie, "Star Wars", could be seen on any television set within the general viewing area on 7 April, it did not follow that the applicant must have seen it at the deceased's unit on that night.
168 Counsel advanced a number of criticisms of the police investigation. These included the assertion that the police should have followed up as to whether gloves were sold in the Myer Department Store on 7 April; that there should have been a further investigation when two different sized circles were drawn by the applicant, in the context of assessing whether a hammer would fit either of those two circles. Even "G" did not think it was a normal hammer. She referred to the bundle of newspapers seen by a neighbour outside the deceased's premises, possibly on the Thursday before 14 April, and argued that that might have had some significance. Counsel queried whether inquiries were made concerning security film which might have shown the applicant at Carnegie station on 7 April. The Easter egg, which the applicant said he gave the deceased, was found in her bedroom. How likely was it, counsel queried, that the deceased would have put the gift in her bedroom after receiving it from the applicant?
169 Counsel then addressed the evidence of witnesses who, she submitted, were very important. She reminded the jury of what Paul O'Neill had told the police and his family about what he observed. This could reasonably have been expected to have been conveyed to the applicant who would therefore have been aware of a great deal of detail about the scene. This included the lack of any internal lighting, and the fact that there was a rug over the top of the deceased's head. The witness also noticed that the television was on, there was a package on the floor and a crackling sound in one phone with its wall plug half out. He also described the missing rings. Counsel submitted that all of these matters would have been known to the family, save for the matter of the hammer.
170 Counsel reminded the jury of Dr Heyes' evidence that she had performed tests which involved hitting bloody objects and as to the possibility of blood being splashed on the assailant's clothing. She then argued that if the applicant was giving "the ducks guts" to "G" he would have volunteered having blood on his clothing, rather than merely responding affirmatively to "G's" question about this.
171 Counsel submitted that there was a big difference between the six blows the applicant claimed to have delivered, compared with the 15 to 20 blows that Professor Cordner suggested may have been struck to the head area. Professor Cordner stated, it was pointed out, that the neck injuries could have been caused by a kick or stomp, a foot or fist, although he did not exclude a hammer. He expressed the opinion that as many as 40 blows would have been struck altogether. That was vastly different from the 12 blows that the applicant said that he delivered.
172 Counsel argued with respect to the murder weapon that it was important to bear in mind that Professor Cordner never said more than that "something like a hammer" was possibly used. Cordner also said that it was notoriously difficult to fix a time of death, and did not do so.
173 Counsel submitted that the interview with "G" had to be viewed in its proper context. It was of critical importance to understand the applicant as a person both prior to, and during, the scenarios and to have regard to the effect of trickery and deception upon him. Counsel submitted that the applicant was a psychologically damaged individual who had elements of dependent personality and was socially isolated. No Crown expert was called to challenge the evidence of Cummins, who was an experienced psychologist and who had expressed the opinion that the applicant suffered from a condition known as borderline personality disorder.
174 She submitted it was also important to bear in mind the lengths to which the police were prepared to go in order to obtain a confession. "R" was personable, and he appeared to have an attractive lifestyle. He had a girlfriend and money to spend. It was not surprising, therefore, that the applicant was taken in by him particularly when he was offered a rent free flat, with free use of its amenities, from a person he had only met twice.
175 Counsel submitted that much of the detail in the confession was in the public domain and some was just plain wrong. It was put that the applicant got the date of Sunday 7 April from his interview with the Homicide Squad on 6 May. Similarly the applicant's knowledge of the call from the public phone box on 6 April was also obtained from that interview.
176 It was submitted that "G" prompted the applicant into saying it was a claw hammer that he used. Further, given that it was in the public domain that what was used was a blunt instrument, it would not be hard for the applicant to guess that it was a hammer. Counsel argued that even if Debra Marks did not mention a hammer to the applicant it was an assumption that he could have made but, she submitted, the evidence of Mrs Marks should be accepted. Counsel also stated that James O'Neill thought so little of the applicant that he claimed in evidence to have told Buick that he thought that he was responsible for his aunt's death. Counsel asserted that even if Debra Marks did not obtain the information from him, she had nevertheless told her son about the use of a hammer.
177 In relation to the evidence of Zheng-Macdonald, it was submitted that he said that the hammer was lying on a bookshelf in the study after he had last used it, about six months previously. It was not his evidence, submitted counsel, that it could have been in the tool box in the study area, as the applicant told "G". Moreover, Zheng-Macdonald could not say precisely when he last used it. Further, counsel submitted, when asked to describe the hammer by "G", the applicant described it as "a little one with airholes in the handle in a dark brown area". The applicant also described it as "a rusted old thing". By contrast Zheng-Macdonald described the hammer as being in average condition. It had not been left out in the weather, so there was no real rust on it. Counsel submitted that this was not the object described by the applicant to "G".
178 Counsel submitted that there were times in the course of the conversation with "G" when the applicant could be seen to be struggling to come up with the details requested, and when he displayed uncertainty in his account. Counsel contended that the applicant wanted to be part of the crew and successful like "R", but most of all he wanted the Homicide Squad to desist from harassing him, and he knew that only if he said what he understood "G" wanted to hear would he secure these objectives.
179 It was submitted by counsel that there were so many discrepancies in the interview with "G" that it provided an inadequate basis for a finding of guilt, beyond reasonable doubt, of murder.
The Grounds
180 The grounds upon which the application for leave to appeal is based raise very similar issues to those addressed in the matter of Tofilau[34]. The principles discussed in my judgment, in that case, are applicable and need not be set out again.
181 In substance, it was contended on behalf of the applicant that the trial judge erred in ruling that the covert operatives "R" and "G" were not persons in authority within the common law principles of exclusion of inculpatory statements where inducements have been held out by a person falling within this description.
182 The trial judge concluded[35] that the applicant