R v Saad [2005] VSCA 249

2 On 20 September 2003 Hany Adliy Saad and Mary Saad were found guilty of having murdered Wadie Saad on 18 February 2001, and on 12 November 2003 they were each sentenced to 21 years' imprisonment with a non-parole period of 16 years.

They now apply for leave to appeal against conviction on a number of grounds.[1]

Hany Saad - Ground 4; Mary Saad - Ground 2

3 The principal ground of appeal advanced on behalf of both applicants is that the verdicts of guilty of murder were against the evidence and the weight of the evidence. Hany Saad contends that the verdict was unreasonable or cannot be supported having regard to the evidence. It is submitted on his behalf that a jury acting reasonably ought to have entertained a reasonable doubt about his guilt or to put it another way that the evidence was incapable of convincing a reasonable jury that there was not a reasonable hypothesis consistent with his innocence. Similarly, Mary Saad contends that the verdict was unsafe and unsatisfactory. It is submitted on her behalf that the jury could not have excluded beyond reasonable doubt the possibility that the deceased took his own life, particularly in light of the evidence of the witnesses Dr Drummer, Dr Ranson and Messrs Kelleher and Marshall.

The test of unsafe and unsatisfactory

4 In M v The Queen,[2] the majority of the High Court held that where a court of criminal appeal is asked to conclude that a verdict is unsafe or unsatisfactory, the court must ask whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. The court must of course pay full regard to the fact that the jury is the body entrusted with the primary responsibility of determining guilt or innocence and to the fact that the jury has had the benefit of having seen and heard the witnesses. But if the court experiences a doubt as to the guilt of the accused, it should ordinarily be treated as a doubt which the jury ought also to have experienced. If on the other hand a jury's advantage in seeing and hearing the evidence is capable of resolving the doubt, the court may conclude that no miscarriage of justice occurred. The minority in M v The Queen put the ultimate question a little differently. They posed the test in terms of whether the jury must have had a reasonable doubt as to the guilt of the accused[3] (which is a formulation that arguably more closely accords with the statutory function of a court of criminal appeal.)[4] But, as Kirby, J. demonstrated in Jones[5], such difference as there may be between the two approaches can be resolved by posing the question in terms of whether the jury were bound to have a reasonable doubt as to the guilt of the accused.

5 It follows that the function of this court is to determine whether the jury, acting reasonably and appreciating the burden and standard of proof could have convicted Hany Saad and Mary Saad on the evidence available to support their conviction.[6]

The evidence for the prosecution

6 The Crown's case at trial was that the applicants had murdered the deceased by sedating him and leaving him in a parked car, and then dousing the interior with petrol before setting it alight.

7 Evidence given by the deceased's brother, Ibrahim Saad, established that the deceased was in a sound financial position, employed in a relatively secure long- term position as a technical officer with Telstra, and relatively speaking was happy and content with his lot. He owned his own house at 27 Willow Avenue, St Albans. Indeed he had paid it off by the time Ibrahim Saad arrived in this country in the early 1990's. He also owned an investment property in Oakleigh, which was let. At some stage he had returned to Egypt where he married Mary Saad, and then after six months of marriage he and Mary Saad had returned to Australia and lived at 27 Willow Avenue. They had two children, Kerlous and Christine, and according to Ibrahim Saad they had a satisfactory marriage with nothing unusual about it. The deceased's mother, Loulou Mikhail, had come to Australia in 1996 or 1997 and she too lived with them at 27 Willow Avenue.

8 It appeared, however, that there was considerable tension concerning the deceased's brother, Hany Saad, and his wife and children. The problem seems to have started as a financial dispute as to whether the deceased would put up the money to bring Hany Saad's wife and children to Australia. But it developed into a much more complex problem when Mary Saad and Hany Saad became lovers.

9 Hany Saad came to Australia in 1999 and lived at first at an elder sister's house and then at the deceased's house at 27 Willow Avenue, and the deceased was supporting him financially to some extent while he studied information technology at the Victoria Business College. Hany Saad was married and his wife Madeline, and their two children, had remained behind in Egypt when Hany Saad came here to study. According to Ibrahim Saad, Loulou Mikhail had wanted Hany and Madeline to live with her and there had been some discussion between Ibrahim Saad, the deceased and Hany Saad at the deceased's house about bringing Madeline to Australia and signing papers for the purpose. He said that they had talked about the matter on a number of occasions, most recently on the day before the deceased's death, and indeed after the deceased's death, Mary Saad travelled with the children to Egypt and returned to Australia with Hany Saad's wife Madeline.

10 But, as it appears, the real problem was that Hany Saad and Mary Saad were deeply romantically involved. Frances Jane Mallia lived at 25 Willow Grove, next door to the house owned by the deceased, and she confirmed that there were some difficulties centring on Hany Saad. Ms Mallia said that she had known the deceased and Mary Saad for 12 years and recognised Hany Saad as someone who had been living in the house "for a bit", and that after he had arrived in Australia there appeared to be problems between the deceased and the rest of the family. It appeared to Ms Mallia that the family wanted the deceased to sponsor Hany's wife and children to enable them to come to Australia, which the deceased could not afford to do. But Ms Mallia also observed marital difficulties between the deceased and Mary Saad stemming from the arrival of Hany Saad. She said that Mary Saad and the deceased appeared to be very happy before Hany Saad came but that had changed after his arrival. Ms Mallia had heard an argument a few weeks before the deceased's death in voices she recognised as belonging to Mary Saad and the deceased and about two or three weeks later, about one week before the death, she had a conversation with Mary Saad in which Mary Saad told her that she had had a big argument with the deceased, and that the deceased had asked his mother whether he could divorce Mary. Ms Mallia also recalled that on an earlier occasion, Mary Saad said that she and Hany Saad had a lot of fun together, they had hit it off and she could talk to him and relate to him much better than she could with her husband. Ms Mallia said that she had seen Mary and Hany Saad together in the neighbourhood.

11 Odilia Wilhelmina Henrietta Robinson lived in Protea Avenue, St Albans, near 27 Willow Avenue and also gave evidence as to the nature of the relationship between Mary Saad and Hany Saad. She had known the Saad family throughout the time that they lived in Willow Avenue and she testified that she had seen Hany and Mary Saad walking past her house on several occasions. To her observation they were very close, walking arm in arm, and kissing, and she said that she had never seen the deceased and Mary Saad behaving in that manner.

12 Additional evidence of the intensity of the relationship between Mary Saad and Hany Saad was given by a number of people who had worked with them. Elizabeth Quezada was employed by Mutual Cleaning as a cleaner at Qantas House with Mary Saad and Hany Saad. She said that she noticed Mary and Hany Saad cuddling and tickling each other all the time. Craig Tanser was employed by Chubb Protective Services as a security officer at Qantas House and gave evidence of having seen Mary Saad and Hany Saad embracing at work. He described them as looking like a pair of newlyweds, always holding hands and always together. He told the supervisor, Angelo Kassidis, about it because he believed that Mary Saad and Hany Saad were supposed to be working in different areas of the building. Another security guard, William Charles Peacock, confirmed Mr Tanser's testimony. He saw Mary Saad and Hany Saad holding hands and being very friendly towards each other while at work and at the Christmas party at the end of 2000. The supervisor Angelo Kassidis explained in his evidence that Mary Saad's job consisted of picking up rubbish and vacuuming the offices, and that Hany Saad's job was to clean toilets. Hany Saad was therefore not permitted to enter the office areas. But Mr Kassidis often saw Mary Saad and Hany Saad together and he told them to separate because it was not good for the clients to see the cleaners talking rather than working. Mr Kassidis confirmed that he had a conversation with Mr Tanser sometime before Christmas 2000 and that he had separated Mary Saad and Hany Saad as a result of that conversation, so that Mary Saad worked on levels 1 to 12, and Hany Saad on levels 12 to 22. He added, however, that at the Christmas party for cleaning staff held at the end of 2000, the applicants had hugged each other and danced together all night and he had heard Mary Saad say: "If my husband see that he's gonna kill me".

13 The defence presented at trial was that the deceased had died by his own hand, by strapping himself in his car and dousing the interior with petrol and setting it alight. But the deceased had no history of mental instability or depression or apparently any other reason to take his own life. By and large the deceased seems to have been in relatively good health and state of mind before his death and his only health problem of any significance was a degree of back pain for which he had been prescribed Celebrex. Dr Soliman Habib Ghobrial who was a medical practitioner practising at St Mary's Medical Centre in St Albans, gave evidence that the deceased consulted him on 24 January 2001 complaining of lower back pain and Dr Ghobrial said that he had diagnosed a mechanical lower back pain, and prescribed Celebrex, which he said is an anti-inflammatory drug and advised the deceased to take one capsule per day, and come back for a review in one week's time. The deceased did not return for review.

14 Dr Lilian Rezk a medical practitioner practising at St Luke's Medical Centre in St Albans, gave evidence that the deceased had consulted her on three occasions and that the deceased was not treated for depression and was not prescribed any benzodiazepines. The medical records of St Luke's Medical Centre recorded that the deceased attended the Centre on 14 February 2000 for a colonoscopy, in April 2000 in relation to an eye problem, and in September 2000 for hay-fever. He was prescribed Depo-Medrol, a prescription medication for hay-fever which is administered by injection and which may cause depression if used over a period of time. In October 2000 he was prescribed Zyrtec for hay-fever. On 13 November 2000, he had attended the clinic complaining of a sore throat and general aching. On 29 November 2000 he had attended and requested Depo-Medrol for hay-fever. On 28 December 2000 he was treated for dysuria, and on 3 January 2001 was treated for tinea. Dr Rezk explained that she had prescribed Depo-Medrol by injection, although it may also have been available in oral form. It was prescribed in batches of five injections, and patients usually kept the remaining batches and returned to the clinic when they needed them administered. Depo-Medrol was not administered to a patient more than twice a month.

15 Evidence given by the deceased's work colleagues established that he appeared happy and well adjusted in his work shortly prior to the deceased's death and that he was looking forward to the future. The deceased was employed by Telstra as a technical officer, Band 7, and was involved in managing Telstra's data network. Bernard Gerrard Anglim was the deceased's team leader for the last 12 months prior to the deceased's death and gave evidence that the deceased was a quiet person whom he rated very highly as an employee, describing him as cooperative and flexible and interested in working overtime when it was available. Mr Anglim acknowledged that there was an atmosphere of downsizing and changing technology at Telstra during 2001 and that it tended to make workers generally concerned about their future. But he said that the deceased was earning over $50,000 per annum at the time of his death, including overtime, and he did not notice anything unusual about him. The last time he had seen the deceased was on the Friday before his death and on that occasion he had made arrangements for the deceased to work overtime on Saturday 17 February 2001 with another worker named George Samos.

16 George Samos was a technical specialist at Telstra and gave evidence confirming that he and the deceased had worked overtime together on Saturday, 17 February 2001. They had started work at 7.30am and finished at about 4.30 pm. Mr Samos said that the deceased was a quiet man and did not appear to spend much money on himself. He wore the same clothes most of the time and never bought himself a takeaway lunch. But he said that there was nothing unusual about the deceased's demeanour on 17 February 2001. To the contrary, Mr Samos said, the deceased was good at his work and he seemed to be in good spirits and they had discussed working together again the following Saturday.

17 Further evidence established that the deceased was in a happy and relaxed frame of mind during the evening of 17 February 2001 and that he had made plans that evening to meet friends at church the following day. Ibrahim Saad said that the deceased had come to visit him at his house at about 7.00pm and had asked after Hany Saad, who had been at Ibrahim Saad's house earlier that afternoon. Adel Barsoum was a friend of the deceased for some four years prior to his death and said that the deceased had come to visit him at his home in St Albans later in the evening in order to wish Mr Barsoum well before leaving for a trip overseas. Mr Barsoum said that the deceased stayed until shortly after 10.00pm and that, although the deceased had complained of sore back after prolonged sitting, he did not appear distressed or depressed at all. They had discussed attending church the next day.

18 The deceased had then returned home and had a late meal with Mary Saad and Hany Saad and his mother, Loulou Mikail. Mrs Mikail gave evidence that that was when she last saw the deceased. They had eaten molukhia, which is a green vegetable, and a separate dish of rice and pigeon. Mary Saad served the meal in the kitchen. She put the pot in the middle of the table and everybody served themselves from the pot. Mrs Mikail had some milk to help her sleep. She did not know whether anyone else had tea or coffee, because she went to sleep. She said, however, that Mary had been tired and unwell that night.

19 Further evidence established that the deceased, Mary Saad and Hany Saad later left home some time after midnight and travelled by car to the nearby Sunshine Hospital. Bill Hili who lived in Protea Crescent, St Albans saw the deceased's car at the deceased's house shortly before it departed for the hospital. He gave evidence that he had driven past the house on the corner of Protea Crescent and Willow Avenue at about 12.30am and seen a car in the yard of 27 Willow Avenue, partially on the footpath. The car lights were on but he did not see anyone in the vicinity of the car. The garage door was shut and the gates to the street were open. He then continued driving to his house, which was about three houses down, and parked his car in the garage, and when he went to shut his gate he noticed that the car had gone.

20 Hany Saad and Mary Saad said in their records of interview that, after driving them to the hospital, the deceased had dropped them at the Furlong Road entrance and driven off to get clothes for Mary Saad, and that Hany Saad had remained with Mary Saad for remainder of the time that they were at the hospital. But the evidence showed that only part of that version of events was true. Mary Saad did check in with the triage nurse at about 1.08am and thereafter waited for some time in the public waiting area before being admitted to the emergency area and being attended to by a physician. She was not discharged until about 2.30 am. But it is plain that Hany Saad was not with her all the time. According to the forensic evidence, to which I shall come later, about an hour before the trip to the hospital the deceased had consumed a very large quantity of Diazepam and Temazepam and as a result would have been so sedated by 1.00am as to be unable to drive a car. Nevertheless, after Mary Saad got out of the car and went into the hospital at about 1.08am, someone drove the car from the front door of the emergency section of the hospital in Furlong Road to Majorca Street, which is a side street along the west side of the hospital, and there parked it apparently very carefully and very close to the kerb outside the house at 13 Majorca Street. In the circumstances it is overwhelmingly probable that it was Hany Saad that drove the car. Then at about 1.45am the car was set alight with petrol with the deceased drugged and strapped in the driver's side, thus substantially destroying the car, killing the deceased, and destroying the large part of his body.

21 Kathryn Maree Zammit was a student. She gave evidence that on Saturday 17 February 2001 she was in a car driven by her boyfriend when she and her boyfriend saw a car on fire. It was parked on the western side of Majorca Street, on the opposite side to the hospital, and in between Gumtree Close and Furlong Road. The interior of the car was alight, and the flames were "pretty high". Ms Zammit said that she telephoned the fire brigade at about 1.45 am. She was not aware of their being anyone inside the car. She did not remain at the scene. She did not see anybody around the car or running away from the car.

22 Mary Assunta Xerri lived at 9 Majorca Street, St Albans. She gave evidence that on Sunday 18 February, she and her husband had arrived home from a party between 1.00 and 1.30am and that as they drove past 13 Majorca Street, she had noticed a red car parked on the side of the road. There were no pedestrians in the vicinity of the car, and Mrs Xerri was not able to say whether there was anybody inside the car. Mrs Xerri said that she went home and went to bed but she was awoken some time later by a big bang, which she thought was an accident. She looked outside the window and saw fire and the fire brigade arriving. Mrs Xerri said the bang sounded to her like a car hitting another car, and that she was fast asleep when woken by the bang.

23 Kerry Eileen Rogers was a baker. She testified that she left her home in Clover Street, St Albans at 1.40am on 18 February 2001 to drive to work in North Essendon, where she was due to start at 2.00 am. She entered Majorca Street from Gumtree Road, a few minutes after leaving her home, and saw a car on fire. Another car pulled up beside her, and asked whether she had a mobile telephone with which to call the fire brigade. Ms Rogers telephoned the fire brigade after speaking to her boyfriend. She said that she did not see any pedestrians in the vicinity of the fire.

24 Although none of those witnesses saw Hany Saad or anyone else set the car on fire or moving away from it, the evidence strongly implies that Hany Saad slipped back into the hospital after moving the car to Majorca Street and joined Mary shortly before she was seen by the treating physician, later pretending that he had been with her all the time.

25 Kim Michelle Hillier was a registered nurse and working as the triage nurse at the Sunshine Hospital on 18 February 2001. She testified that she began work at 9.00pm on 17 February and finished at 7.30am the following morning. She recalled that she had seen Mary Saad at about 1.08am., but could not recall whether Mrs Saad had anybody with her at the time. She said that she gave Mary Saad a ranking of 4 out of 5, with 1 being the most urgent and 5 the least urgent, and that after Mary Saad saw the clerk, she had waited in the waiting area. There was no record of the time at which Mrs Saad was taken into the emergency area, but Ms Hellier believed it was less than half an hour later.

26 Ms Hillier's evidence was confirmed by Brigitte Maria Sheffield who was the triage administration clerk at the hospital that night. She gave evidence that she had attended to Mary Saad at about 1.08am. She said that it was usually busy on a Saturday night but that while she could no longer recall the appearance of Mary Saad, she could recall that Mary Saad was by herself when she saw her. Ms Sheffield identified photos of the Emergency Department, which were tendered as Exhibit B, and described the areas depicted by those photos, and explained that entry from the waiting room to the emergency area was controlled by automatic doors, which allowed a person to leave the emergency area, but prevented them from re-entering. She said, however, that a person could enter the emergency area in two ways: either by Ms Sheffield allowing the person entry, or alternatively by a doctor or nurse calling a person as a patient from the waiting room into the emergency area. Ms Sheffield stated that she did not let people she did not know into the emergency area but that an associate or someone connected with a patient she knew could come and go from the emergency area easily enough.

27 Maree Agnes Bell was another nurse at the Sunshine Hospital. She said that she was working from 9.00pm on Saturday 17 February 2001 to 7.30am the following day and was responsible for bringing patients into the emergency cubicles from the waiting area, assessing them as to what was wrong and treating them accordingly. She testified that the night in question was a typically busy Saturday night. Early in the morning she saw a lady (which in fact was Mary Saad) going into cubicle 8 with Dr Bar-Zeev and that there was a man standing outside the cubicle while the lady was there (who was almost certainly Hany Saad). She said that the man was pacing up and down in the corridor and looked restless, upset and anxious. At one stage he was seated in a chair outside cubicle 8, and at other times he was pacing up and down the corridor and standing outside the cubicle. She described the man as about 5'4", with dark hair and a moustache and wearing a white shirt and black pants, about 30ish and with a small build. That description closely corresponded with the appearance of Hany Saad.

28 Similarly, Leanne Catherine Smith, also a registered nurse employed by the Sunshine Hospital, testified that on the night of 17-18 February 2001 she had worked night shift in the paediatric section of the emergency department between 9.00pm and 7.30am and that it was a very busy shift. She said that at one stage while in the general adult emergency area she too had noticed a man in the vicinity of cubicle 8. He was of average height and build, dark-skinned and aged in his late 20's to early 30's. He was standing outside cubicle 8 and looked particularly agitated. He was shifting his weight from foot to foot and looking around. Ms Smith said that at one stage she made eye contact with the man and smiled at him, but he looked away.

29 Tracey Leigh Ingvorsen was the nurse in charge of the Emergency Department on the night. She said that most of her work was in the "fishbowl" area, allocating patients to cubicles, and moving between the cubicles. It was a very busy night, and there were also patients arriving by ambulance. Mary Saad's complaint on presenting at 1.08am on 18 February 2001 was lower abdominal pain. She reported having suffered lower pelvic back pain and right abdominal loin pain for two days, which was worse on the night of her admission. She was given a triage rating of 4. The medical records did not record the time at which she was treated by the doctor and Ms Ingvorsen said that she was not herself involved in treating Mary Saad. But she did see Dr Bar-Zeev escort a lady into cubicle 8 and although she could not recall seeing anyone else with that patient she had seen a man pacing outside cubicle 8. He had dark hair, was aged in 20's to 30's, and was smaller than Ms Ingvorsen, and he looked agitated and impatient.

30 Finally, Dr Naor Haim Bar-Zeev was the treating medical practitioner who attended Mary Saad in cubicle 8. He could not recall the time at which he had seen her that night, except that it was after her triage attendance. He recalled seeing her in the cubicle, but could not recall whether he brought her from the waiting room to the cubicle. He said that he had taken a history from Mrs Saad, and diagnosed her as suffering from a urinary tract infection. But the diagnosis was largely dependent upon the history given by the patient. A urine check showed the presence of blood, which was not specific but was consistent with a urinary tract infection and Dr Bar-Zeev had prescribed antibiotics and arranged for Mary Saad to be reviewed in the gynaecology outpatient clinic. He said that she had been accompanied by a male, who was introduced to Dr Bar-Zeev as Mrs Saad's brother, and that during the course of the examination Dr Bar-Zeev had asked the man to wait outside the cubicle, which he did. Dr Bar-Zeev said that he did not notice anything unusual about the man or his demeanour. Dr Bar-Zeev believed that Mrs Saad would have been in the cubicle for between 20 and 25 minutes and discharged at around 2.30am.

31 On one view of Ms Sheffield's evidence, it would not have been possible for Hany Saad to have gained entrance to the emergency area (where he was seen waiting outside the cubicle) unless he had gone in with Mary Saad when she was let in there at about 1.38am. If that were so, he could not have set the car alight at around 1.45 am. But evidence given by Morris John Tyers, who was the security services co-ordinator at the Sunshine Hospital, showed that it would have been possible for Hany Saad to have got into the emergency area after setting the car alight and before Mary Saad had been seen by the physician. Mr Tyers explained that entrance to the emergency department could be gained via the ambulance door from Majorca Street and that, although it was locked and could only be entered with a key, a person could exit the emergency department via the ambulance door by pressing a green button on the inside. The implication was that Hany Saad could have slipped back in as someone else went out. Mr Tyers further explained that while the area between the waiting room and emergency area could only be accessed with a swipe card or with the permission of Ms Sheffield, people sometimes piggybacked, which is to say, joined with other people who were permitted entry.

32 Myles William Hennessey was a station officer with the Metropolitan Fire and Emergency Services Board. He gave evidence that at 1.45am on 18 February 2001 he and other fire-fighters responded to a call concerning a car fire in Majorca Street. He said that the call would have come in a few minutes before 1.45am. He arrived at Majorca Street at 1.53am, where another fire brigade was already in attendance. He noticed that a tree beside the car was on fire, as was the nature strip. The interior compartment of the car was on fire, and the fire was fierce. The fire was subdued with water hoses. One of the fire-fighters was pouring water through the passenger side window. As the smoke cleared, Mr Hennessey noticed what appeared to be the intestines of a person on the front seat. He directed the fire-fighter to turn off the water. He noticed the torso of a body twisted down between the seats. The seat belt was still on the body, which he thought was unusual. The police were notified and the scene was preserved. Mr Hennessey said he had attended several car fires where people have died, and he had never before seen one where the deceased had a seat belt on. Fire-fighters forced open the bonnet and the boot to check for the spread of flames. Some damaged electrical equipment was found in the boot. The car windows were broken, either by the fire itself or by water spray. Mr Hennessey said that if the windows were broken by the fire, it may have produced a loud noise. The rear offside tyre of the vehicle was damaged in the fire and Mr Hennessey said that when a tyre is damaged in a car fire it usually creates a very loud bang, almost as loud as a gunshot. He also said that other things in cars can create loud bangs when a car is on fire. In cross examination Mr Hennessey agreed that motor cars have an enormous amount of flammable material inside them, and that if a fire takes hold inside the passenger compartment of a motor car there is a lot to burn. .

33 Bruce Royland Gee was a station officer with the Metropolitan Fire and Emergency Services Board. He gave evidence that on 18 February 2001 he was stationed at Sunshine, and received a call at 1.45am to attend a car fire in Majorca Street, St Albans. He stated that it took about three or four minutes to get there and that his unit was the first to arrive at the scene. The fire was in the passenger compartment of the car, and was fairly well advanced, with flames coming out of the windows. A tree on the passenger side of the vehicle was also on fire. He did not see any people in the vicinity of the fire. He noticed on arrival that the driver and passenger side windows of the car were broken, but that the front and rear windscreens were intact. He said that Mr Hennessey had later told him there was a body in the car, and that he had called for the police and the Fire Investigation Squad. In cross examination he said that it was not uncommon for windows to break during a fire due to the heat. He also agreed that the fire-fighters had begun hosing the fire from the passenger side of the car and moved to the driver's side, and that there was a fair amount of pressure from the hose at a close range, which could have moved the body, and may have moved the remains of a cigarette lighter found in the car.

34 Francis Morris Stockton was an inspector at the Fire Investigation and Analysis Unit of the Metropolitan Fire and Emergency Services Board. He had held that position for 41/2 years, and had been employed by the Fire Board for 26 years. He gave evidence that he attended the scene at 3.15am on 18 February 2001 but did not touch anything as the area had been deemed a crime scene. He looked inside the engine compartment and cabin area of the car, and was confident there had not been any electrical source of ignition from the engine bay area. In cross examination by counsel for Hany Saad, Mr Stockton said that he had attended between 15 and 20 fatal car fires during his career. On several occasions the driver had been wearing a seatbelt, but these were cases where car accidents had caused the fire. He had attended between eight and twelve suicides by burning, and they had generally been caused by a person pouring petrol over themselves, but not ordinarily in cars.

35 The evidence also showed that Mary Saad and Hany Saad did not have any expectation that the deceased would return. In their records of interview, Mary Saad and Hany Saad said that upon Mary Saad being released, she had called home to ask the deceased to come and collect them but that after getting no answer she had called Ibrahim Saad. The evidence showed otherwise.

36 Ms Hillier, the triage nurse, recalled that when Mary Saad was being discharged at about 2.30am she had approached the front desk and asked to use the telephone to call someone to pick her up. Ms Hillier said that she had accordingly dialled the number and then given the handset to Mrs Saad. Mrs Saad spoke to someone on the phone, then gave the handset back to Ms Hillier and Mrs Saad had then waited in the waiting area until collected by someone with light hair and light coloured clothing. Mrs Saad was discharged at 2.38am. Ms Hillier said that she was not sure whether or not Mrs Saad was accompanied by anybody that night.

37 Megan Jane Foster, who was an administrative officer in the Law Enforcement Section of Telstra, produced call charge records relating to the following:

Phone number 9364 1529, being the home telephone at 27 Willow Avenue (Exhibit F)

Phone number 9367 8912, being the phone located at the triage desk in the emergency department of the Sunshine Hospital (Exhibit G)

Phone number 9364 11X2, being the public phone situated at the Sunshine Hospital (Exhibit H)

Outgoing calls made from phone number 9364 1529, being the home telephone at 27 Willow Avenue (Exhibit J)

Phone number 9899 1429, being the number used by Dr Mary Zaky (Exhibit K)

Phone number 9846 2753, being an unlisted number at the home of Dr Mary Zaky and her husband (Exhibit K).

Her evidence was then summarised in a chart tendered as Exhibit W. She explained that the call charge records recorded all telephone calls coming into a service, including unanswered calls which are recorded as zero duration.

38 Bryan Thomas Taylor was a facilities manager for Siemens Limited. He gave evidence that the phone number in the triage department of the Sunshine Hospital was 9367 8912. The net result of his evidence was that the only call which had been made was the one made by Mary Saad using the triage nurse's telephone and it was made to Ibrahim Saad. She did not call home to the deceased, but pretended that she had and feigned surprise that the deceased had not been home.

39 Ibrahim Saad gave further evidence that between 2.30 and 3.00am he received a telephone call from Mary Saad, in which she said to him:

"Your brother has given us a lift to hospital and returned back home to bring some clothes and to check on the children and then he hasn't come back until now. Come and give us a lift and to see where your brother is".

He then drove to the Sunshine Hospital, noticing on the way that police had closed off Majorca Street, and he met Mary Saad and Hany Saad inside the Emergency Department. Mary Saad there said to him:

"Your brother was here and he hasn't come back until now".

40 Ibrahim Saad said that they then drove back to the deceased's home and he waited in the car while Mary Saad and Hany Saad went inside. He noticed that the deceased's car was not there and when Mary Saad and Hany Saad returned from inside the house they said that the children were at home but that the deceased was not, and Mary Saad asked to be driven back to the hospital to look for the deceased. Then when they got into Majorca Street Mary Saad said:

Ibrahim Saad stopped his car and recognised that it was the deceased's car, which of course by then had been burned.

41 Ibrahim Saad said that police were at the scene and would not allow them to go near the car. Mary Saad had asked the police what had happened, and they told her that the deceased was inside the car but that they were not allowed to see him. According to Ibrahim Saad, Mary Saad and Hany Saad were crying and after about 10 to 15 minutes the police told them to go home, which they all did. But then they returned again several times that evening to the deceased's car. Later, police showed Ibrahim Saad a gold necklace and bracelet, which he had identified as belonging to the deceased and gave to Mary Saad.

42 Expert evidence established that the car had been set alight deliberately using a significant amount of petrol as an accelerant. Ross Hancock was a Detective Senior Constable of police stationed at the Preston Criminal Investigation Unit. He testified that he had arrived at the scene at 2.45am, and satisfied himself that the scene had been preserved. He then made inquiries with relatives of the deceased, and spoke to various persons at the Sunshine Hospital. He ascertained that there were no security cameras in operation at the Hospital that night.

43 John Desmond Kelleher was a scientist at the Victorian Forensic Science Centre. His duties involved the investigation and examination of fires and explosives. He attended Majorca Street at 7.30am on 18 February 2001 and examined the deceased's car, a Ford sedan registered number EHN 405, which was parked correctly at the curb facing north in front of number 13. He inspected the car, and observed damage to a tree overhanging the car and the nature strip beside the car. Mr Kelleher said that his preliminary examination of the car revealed that the fire had not spread to the engine compartment or boot of the vehicle, although those areas had been heat affected. The front doors were more damaged than the rear doors, and all of the windows were missing. He reached the conclusion that there had been a very intense fire in the passenger compartment of the car. There was a burnt body in the driver's seat of the car, and the driver's seat belt was fastened on the deceased. He said that arrangements were made to convey the vehicle to the Victorian Institute of Forensic Medicine in order for the body to be removed, then the car was conveyed to the Victorian Forensic Science Centre for further examination.

44 Mr Kellehar said that he later conducted a detailed examination of the car. There was limited damage to the rear of the passenger compartment of the vehicle, but severe damage to the front doors, front seats and dashboard of the car. There was an area of the front seat that was less damaged, as it had been protected by the deceased's body. The windows of the car were all in the up position prior to the fire, except for the driver's window which was down 5-6 centimetres. The front doors were closed and locked, and the back doors were closed, but he could not say whether they were locked due to damage to the lock mechanism. In the driver's foot-well of the car immediately below the ignition switch, Mr Kelleher discovered a set of keys which he thought were car keys, although they were heat affected and melted so he could not be certain what they were. He and another expert also undertook investigations as to whether there was an electrical fault that may have caused the fire, and there was no evidence of it. Mr Kelleher examined samples of carpet and underlay taken from the foot-wells of the car to ascertain whether any flammable or combustible liquid was present. He found hydrocarbon residues mixed with residues from burnt plastic in the driver's foot-well. He found middle to high boiling point components of petrol in the other three foot-wells. He located the remains of a small disposable cigarette lighter in the car. He did not locate any petrol containers in the car but did locate melted plastic which he said may have been the remnants of a container. As a result of his investigation, Mr Kelleher concluded that the cause of the fire was the ignition of petrol on the deceased's person and on the driver's seat of the car. He considered it was likely the fire started in the driver's seat, although he could not exclude the possibility that it had started somewhere else. Mr Kelleher said that he had previously attended other scenes of fires in stationary motor cars, including about a dozen where persons had been incinerated. He said that, in his experience, it was unusual for the deceased in such cases to be wearing a seat belt. Mr Kelleher could not recall seeing that before, and observed that people who set fire to themselves in cars often try to get out of the car and remove their seat belt in the process. If, however, a person were unconscious or semi-conscious, they would to some extent be held in place by the seat belt.

45 Mr Kelleher said that petrol vaporises when exposed to air. The liquid is flammable but it is the vapour that actually burns and the process of burning varies with the concentration of vapour. Petrol vapour once ignited will always explode, but the concentration of the petrol vapour determines the size and violence of the explosion. Mr Kelleher said that there had to have been some sort of explosion in the car, because there was burnt petrol, but there was no evidence of a major explosion. Mr Kelleher said that it would have been possible to ignite the petrol in the car by throwing a lighted match inside the 5cm gap in the driver's window.

46 In cross examination Mr Kelleher said that he had considered the possibility of petrol having been moved around the car by the fire hoses, but did not consider that it sufficiently explained what he had observed. He could not say what quantity of petrol was in the car, except that there were litres of petrol rather than millilitres, and there was considerably more in the front of the car with the largest concentration found on the driver's seat. Mr Kelleher said that he could not recall whether the car was fitted with inertia reel seat belts but he agreed it was possible for a person sitting in the driver's seat wearing an inertia reel seat belt to pour petrol over the front of the car, and could not exclude the possibility that such a person might also spill some petrol on the rear foot-well. Mr Kelleher said that he has attended car-fire suicides in the past, which involved persons pouring petrol over themselves and setting themselves alight. Mr Kelleher further testified that he found two medical or pill bottles and a crucifix in the car, and two rings in the middle console, and a piece of paper containing some religious text on the passenger seat and the remnants of a wedding invitation. He also found the remnants of a cigarette lighter, although he did not examine it any further. Mr Kelleher agreed that he had attended arson scenes where people had been burnt when they tried to light petrol and further agreed that there was nothing inconsistent forensically in what he found with the deceased setting fire to himself .

47 Further evidence established that in the weeks before the deceased's death Mary Saad had consulted two medical practitioners in order to obtain substantial supplies of the drugs which were used to sedate the deceased before he was set alight. Dr Raouf Bassily was a medical practitioner who practiced as a gastroenterologist. On 15 January 2001 he saw the applicant Mary Saad, who was referred to him by her general practitioner. She had complained of stomach pains and vomiting and Dr Bassily thought she may suffer from functional bowel problems caused by anxiety. He made arrangements for her to have a gastroscopy, but she did not attend the appointment. He prescribed drugs for her including Oxazepam, which is a minor tranquilliser that tends to relieve anxiety in the short term and assists sleep. Dr Bassily prescribed her one packet of 24 Oxazepam tablets in 15mg dosage, and directed she take two tablets a day for 12 days. In cross examination by counsel for Mary Saad, Dr Bassily agreed that Mrs Saad was referred to him in October 2000 and that it took some months for her to see him. He said that in January 2001 Mrs Saad had presented with symptoms the same as those of which she had complained of in October. After seeing her, Dr Bassily wrote a report to Mary Saad's general practitioner in which he reported that she complained of intermittent episodes of dizziness, "crampy" abdominal pains, nausea and vomiting, and that the symptoms woke her from sleep at night. Dr Bassily formed the view that she suffered from anxiety, and prescribed the medication to help her calm down a bit.

48 Dr Mary Wahib Zaky was a medical practitioner, practicing as a general practitioner at St Mary's Medical Centre in St Albans and Box Hill. Her husband, Dr Joe Yazza, was also a medical practitioner. The applicant Mary Saad was a patient of Dr Zaky, having first seen her at the St Albans clinic in July 1999. On 20 October 1999 Dr Zaky prescribed Mary Saad with Celebrex, an anti-inflammatory drug, to treat her right knee. She was prescribed one box of 30 capsules, and directed to take one tablet per day. On 27 October 1999 Mary Saad reported that the Celebrex was not assisting her, and Dr Zaky advised her to stop taking it and prescribed other medication. On 1 November 2000 Mary Saad attended and requested a pregnancy test, which returned a positive result. Dr Zaky asked what her attitude was to the pregnancy, and Mrs Saad said she was going to consider her position. On 8 November 2000 Mrs Saad attended the clinic with her husband. Initially, she spoke to Dr Zaky alone. Mrs Saad told Dr Zaky that she wanted to terminate the pregnancy because she did not want to have another child. She said that she could not cope with a third child and asked Dr Zaky to tell her husband that it was advisable that she have a termination if she could not cope. The deceased subsequently joined his wife in Dr Zaky's room, and Dr Zaky told him that it would be in Mary's interest to terminate the pregnancy because psychologically she could not cope with a third child. Dr Zaky could not recall any discussion about deformities and said she would have noted this had such discussions occurred. In fact as DNA evidence later established, the child had been conceived as a result of the affair between Mary Saad and Hany Saad. Whether the deceased knew that or suspected it is not clear. But the doctor said that the deceased agreed to do whatever was in Mary's best interests. Arrangements were made for a termination to take place at the Sunshine Hospital and that was done later that month.

49 On 22 November 2000 Mary saw Dr Zaky and expressed guilt for having terminated the pregnancy. Dr Zaky prescribed the contraceptive pill. On 4 December 2000, Dr Zaky diagnosed depression and prescribed Mrs Saad an anti-depressant. On 18 December 2000 Mrs Saad reported having social problems with her husband. On 27 December 2000 she reported having been to hospital for a urinary tract infection. She complained of insomnia, and was prescribed Mogadon 5mg tablets, which are a sedative. On 9 February 2001 Mary Saad was prescribed Temazepam 10mg tablets in a packet of 25. Temazepam is a sleeping tablet. On 14 February 2001 Mary Saad told Dr Zaky that she had not filled the script for Temazepam, and Dr Zaky prescribed Normison 10mg tablets in a packet of 25, which is also a sleeping tablet. Mrs Saad was advised to take one or two tablets at night. On 16 February 2001 Mary Saad told Dr Zaky that the Normison was not working, and requested Temazepam capsules. She told Dr Zaky that she wanted to be asleep when her husband came home because she did not want to have anything to do with him in bed. When Mrs Saad was complaining about the Normison not working, she asked whether there was anything stronger she could be given in injection form that she could take with her, and Dr Zaky told her that she could not give anything like that. When Mrs Saad spoke to her doctor about her husband, Dr Zaky told her that if she treated him really well he might return the sentiment. Mrs Saad said to her that her brother in law on occasions told her husband to treat his wife better.

50 I have already referred to the forensic evidence which established that the deceased had been sedated with a substantial quantity of Diazepam and Temazepam before the car was set alight. Dr David Leo Ranson, a forensic pathologist and the deputy director of the Victorian Institute of Forensic Medicine, gave evidence that he attended the scene at Majorca Street at 9.00am on 18 February 2001. He confirmed the death of the occupant of the car. He inspected the body and observed extensive loss of skin and the underlying soft tissue over many regions of the body. The peripheral areas of the body were largely burnt away. There was extensive heat damage to the skull, the skin over the head was almost completely absent and some portions of the skull had been charred away. He placed some cyanoacrylate gules on the teeth to preserve them, and packed and protected the head in preparation for transportation of the body. He identified a number of items around the body, including a ring, and pointed them out to police. Arrangements were made to transport the vehicle to the Coronial Services Centre with the body inside. Once at the Coronial Services Centre, the body was removed from the vehicle.

51 Dr Ranson performed an autopsy on the body at 1.34pm that day. He removed a watch from the body, which showed the time of 1.45. The deceased's stomach was intact and contained a large volume of food material. The stomach was heat affected and charred but was not ruptured. There were no perforations or defects to the bowel. Part of the surface of the stomach and underlying bowel had come through the abdominal wall, hence showing some burn damage. Dr Ranson took a number of blood samples from the cavity of the body. He was unable to obtain blood from the veins due to the severe heat effects.

52 At a result of his post-mortem examination Dr Ranson concluded that there were no signs of significant ante-mortem trauma. He could not exclude the possibility of there being some sort of trauma because he could not examine the skin or subcutaneous tissues, but said there were no features in the structures that remained to suggest there had been any sufficient injury prior to the fire to leave damage. The effects of fire and heat on the body could adequately explain the major trauma to the body. The presence of soot in the periphery of the airways of the lungs, together with froth and mousse like material in the airways, indicated that the deceased was breathing for some time in the early stages of the fire. The areas of greatest sparing of the body from the heat were in the region of the lower parts of the legs, feet, buttocks and lower back, consistent with the deceased being in a seated position during the fire. He considered that the cause of death was the effects of fire in a man with raised levels of sedative drugs.

53 Dr Ranson said drugs such as Diazepam and Temazepam are absorbed across the wall of the bowel into the blood stream, then get moved around the body in the bloodstream and are broken down by organs such as the liver before being excreted. There is usually some absorption in the stomach but the majority of drugs tend to get absorbed in the small bowel.

54 In cross examination, Dr Ranson said that he observed a small drug vial and a ring in the car which he had pointed out to police. He agreed that, as a pathologist, he was aware of people having committed suicide by taking an overdose of drugs such as Temazepam or Diazepam. He had also come across cases where people had committed suicide in motor vehicles by burning themselves to death, in some cases by pouring petrol on themselves and setting the petrol alight. He had previously come across a situation where a person had taken sedating drugs before committing suicide in a motor vehicle. In re-examination, however, Dr Ranson said that he would not have seen more than one or two suicide cases involving fire in a motor vehicle. He had seen a number of cases involving people who had been burnt in motor vehicles in a number of different circumstances. The position in which the deceased was found was not uncommon, in the sense that he was still roughly in a seated position but had fallen back into the area between the seats due to the effects of heat on the muscles of the body, causing the muscles to contract. He said that some people who set fire to themselves have been known to move around in the early stages of the fire.

55 Professor Olaf Heino Drummer was the Head of Scientific Services at the Victorian Institute of Forensic Medicine and Professor of Forensic Medicine at Monash University. He gave evidence that he had reviewed a toxicology report prepared by Dr McIntyre who performed tests in relation to samples obtained during the autopsy of the deceased. Analysis of the blood sample taken from the deceased revealed a carbon monoxide concentration of 25 percent, a hydrogen cyanide concentration of 2 millilitres per litre, a Temazepam concentration of 9.8 millilitres per litre, a Diazepam concentration of 1.5 millilitres per litre, a Nordiazepam concentration of 0.1 milligrams per litre and a Celebrex concentration of 40 milligrams per litre. In the liver was found Temazepam at a concentration of 2.2 milligrams per kilogram and traces of Nordiazepam. Nordiazepam is a by-product of Diazepam or Valium as it is commonly known. Both Diazepam and Temazepam are minor tranquillisers or sedative drugs, and Nordiazepam is also active pharmacologically as a sedative drug. The stomach contents contained approximately 30 milligrams of Temazepam and approximately 10 milligrams of Diazepam. Professor Drummer said Temazepam was a sleeping tablet and the usually prescribed dose would be one or two 10mg capsules. In most individuals, Temazepam would start to come into effect within 15 minutes. If more tablets are consumed, both the speed of the onset of sleepiness and the severity of that sedation becomes greater. Professor Drummer said that Diazepam is also a sedative drug, but is usually prescribed to treat anxiety rather than sleep problems. Its effects are longer acting, with one tablet having effects that last for one to three days. Its effects are usually felt within 30 minutes of taking the tablet, depending on the amount consumed. Diazepam can be broken up and disguised in food or a drink containing a strong flavour. Celebrex is an anti-inflammatory drug, commonly used in the treatment of arthritic type conditions. If used in large amounts, it can have a sedative effect. One tablet may remain in the body for one to two days.

56 Professor Drummer said that, due to the blood samples being taken from the deceased's abdominal cavity, it was quite likely the concentrations were affected by the various post-mortem processes. He could not discount the fact that there had been some movement of drug from the small bowel into the blood after death. He said it was not possible to calculate with any degree of certainty the level of drug at the time of death. The sample taken from the liver was more reliable, and may well represent the actual concentration in the liver at the time of death, which revealed that the deceased had those drugs in his body in reasonable amounts at the time of death. Based on the results of the examination of the liver sample, Professor Drummer opined that most people would be sedated quite significantly with that amount of Temazepam in their blood. He could not say whether they would be conscious, but said they would be very sedated and falling asleep. He explained that even one Temazepam tablet would impair a person's ability to drive a motor vehicle safely.

57 In cross examination Professor Drummer said the residual taste of both Temazepam and Diazepam was slightly bitter. Both drugs are poorly water soluble in tablet form. The capsules, however, contain a viscous liquid in which the drug has been dissolved. Analysis of the deceased's stomach contents found drugs that were not yet absorbed, meaning they must have been taken relatively recently. Professor Drummer said that he would expect those tablets to be almost completely absorbed within an hour of use but it could take longer if the person was unconscious or sick.

58 In re-examination Professor Drummer said that Celebrex had no taste associated with it. Temazepam capsules contained a gel like fluid, which is more soluble than a tablet and could be disguised in a fruit juice. The tablet form could be ground into a powder, but this would not change its solubility. A ground powder, however, could be disguised in an orange juice, due to the colour of the orange juice and the bits of orange in the juice. The powder would be more soluble in hot water, but would eventually sediment out as the tea or coffee cooled down. The powder could be added to food.

59 Further evidence given by Dr Zaky established that shortly after the deceased's death, Mary Saad contacted Dr Zaky and asked her not to tell police that she had prescribed the Temazepam and Diazepam. Dr Zaky said that on Sunday 18 February 2001 Dr Zaky attended the Coptic Church in Bulleen, where she learned of the death of the deceased. After hearing the news, Dr Zaky received a telephone call at the Box Hill clinic from Mary Saad. Mary Saad told Dr Zaky that if the police came to the St Albans clinic, Dr Zaky was not to give them her file, especially not the last few pages which contained the evidence of Dr Zaky's prescription of sleeping pills for Mary Saad. Mrs Saad said that if Dr Zaky did show the police, Mrs Saad and her children would be in trouble. The conversation was in Arabic. Dr Zaky further testified that the following day she attended her St Albans clinic. The police had obtained a copy of the medical file with Mary Saad's written authority. About one week later, Mary Saad telephoned Dr Zaky at the Box Hill clinic, and asked whether Dr Zaky had given the police her medical file. Some days later, Mrs Saad telephoned Dr Zaky at the St Albans clinic about her file again, and Dr Zaky told her that she gave the medical file to the police because Mrs Saad had consented to that. Later that evening, Mrs Saad telephoned Dr Zaky at home and inquired about her file again. Dr Zaky told her the file was with the police and never to telephone her at home again.

60 Dr Zaky was shown a number of pieces of burnt paper found in the deceased's car (Exhibit MF12), which she identified as coming from a church magazine. She said that there was a stack of magazines at the door of their church containing the liturgy for the day and social news.

61 Peter Andrew Rains was a sergeant of police, and at the time of the investigation was a Detective Senior Constable stationed at the Arson Squad. He attended Majorca Street, St Albans at 4.20am on 18 February 2001, where he inspected the scene and made inquiries of a number of witnesses. On Wednesday 21 February 2001 he attended the Keilor Downs Police Station in the company of Sergeant Millett, where he obtained a statement from the applicant Hany Saad with the assistance of an interpreter, Elizabeth Costabir. At the conclusion of the interview, the interpreter read the statement to Hany Saad in Arabic, and Mr Saad signed the statement. The statement was tendered as Exhibit M. At 9.30am on 11 December 2001 Sergeant Rains and other police officers executed a search warrant at 27 Willow Avenue, St Albans. At 9.50am he left those premises, and accompanied the applicant Hany Saad to the Homicide Squad Offices in St Kilda Road, where a video taped record of interview was conducted with the assistance of an Arabic interpreter, Mary Bedewi. At 6.55am on 6 June 2002 Mr Rains attended 27 Willow Avenue, St Albans with a policewoman, and again conveyed the applicant Hany Saad to the Homicide Squad Offices for a further interview.

62 Paul Michael Millett was a Detective Sergeant of police, who at the time of this offence was stationed at the Arson Squad. At 3.00am on 18 February 2001 he was contacted by the Police Communications Centre in relation to the fatal fire in Majorca Street, St Albans. He contacted Detective Senior Constable Rains, and attended the scene at approximately 4.15am. There were already other police in attendance. At 9.00am Dr Ranson attended the scene. The vehicle containing the body was subsequently conveyed to the Victorian Institute of Forensic Medicine, and then the car was escorted to the Victorian Forensic Science Centre. Mr Millett obtained a number of items that had been located on the body of the deceased, and a wallet found in the vehicle. On 20 February 2001 Detective Sergeant Millett attended the deceased's workplace at 35 Collins Street, Melbourne. He searched the deceased's work station and observed a blister packet of Celebrex tablets, which had only one tablet missing.

63 On 21 February 2001 he attended 27 Willow Avenue, St Albans, and spoke to the applicant Mary Saad. She indicated she was unwell and not able to make a statement at that time, but signed a release for her medical records to be obtained. On 1 March 2001 Detective Sergeant Millett was present when a statement was obtained from Mary Saad. While the statement was being obtained, Mr Millett attended 27 Willow Avenue with Samir Ghobrial, who was the brother in law of the deceased. With Mr Ghobrial's permission, Mr Millet examined the garage at the premises, wherein he located a petrol container approximately 20 litres in size, which was less than one quarter full. On 11 December 2001 Mr Millett again attended 27 Willow Avenue in company with other police officers, and served a copy of a search warrant on the applicant Mary Saad. Mary Saad was conveyed to the Homicide Squad offices in St Kilda Road, where a video recorded interview was conducted with the assistance of an Arabic interpreter. He said that following the interview with Mary Saad, police conducted a further interview with the applicant Hany Saad. After their respective interviews with police, both applicants were returned to their home at 27 Willow Avenue.

64 On 6 June 2002 at 6.55am Detective Sergeant Millett attended 27 Willow Avenue, St Albans, with other detectives and an interpreter, Vera Oujaimi. The applicants Mary and Hany Saad were cautioned and arrested for murder, then separately conveyed to the St Kilda Road Police Complex. Mary Saad was further interviewed by police, and exercised her right to make no comment responses on legal advice. Hany Saad was interviewed by police. Mr Millett produced a number of items that were recovered from the vehicle, including pieces of paper, small pieces of glass believed to have come from a perfume bottle, the remains of three glass bottles and the metal tip of a disposable cigarette lighter.

65 Further evidence established that Mary Saad and Hany Saad continued to be lovers after the deceased's death. Detective Sergeant Millett said that a listening device was placed in the home at 27 Willow Avenue pursuant to a warrant during one of the visits. In cross examination by counsel for the applicant Mary Saad, Mr Millett said that telephone intercepts recorded every conversation in July, August and December of 2001 and January 2002. Many of the calls had to be translated from Arabic into English. There were in excess of 2,800 calls. Some of the conversations were between Hany and Mary Saad. Mr Millett said that in August of 2001 Mary and Hany Saad spoke to each other affectionately. They both said, "I love you" to one another, called one another "darling" and blew kisses on the telephone. Mr Millett extracted nine telephone calls from all of the phone calls in which it was evident that they were having a relationship. But there were no phone calls in which either Mary or Hany Saad had said anything directly relating to the commission of the offence.

66 In re-examination, Detective Sergeant Millett was asked about one telephone conversation between Mary and Hany Saad on 6 August 2001, wherein Hany said, "Yes my darling" and "I miss you", and at one stage Mary said: "Oh darling". In a telephone conversation on 8 August 2001 commencing at 9.53am Hany whispered: "I love you" to Mary Saad, and she answered: "Me too". There were also kissing noises during the call. Later in that call Mary said something to the effect of: "It's my heart's fault". During a telephone conversation on 9 August 2001 Hany said laughing: "I love you too much Mary". He later said: "I'm telling you that I love you". During a call at 3.55pm on 9 August 2001 Mary said: "I'm going to sleep in the lounge today" and Hany said: "Okay, and I will sleep next to you". Mary then said: "Okay", and Hany said: "Okay, and I will sleep beside you". Later in the same conversation, Hany said: "Okay darling I love you", then he commenced to sing something to the effect of: "I love you and when you leave I long for you, I feel that my eyes are searching for you". The conversation concluded with Mary saying: "Okay darling", and kissing noises being made.

67 In a conversation on 10 August 2001 Hany said: "okay darling" and "I love you", then concluded by saying: "Okay, bye darling". During a conversation on 20 August 2001 Mary said: "I love you", then there was the sound of a kiss. During a conversation on 21 August 2001 there was further blowing of kisses, Mary said: "I miss you" and Hany said: "Bye darling".

68 Mr Millett said that the conversations recorded while the listening device was in operation were largely unintelligible due to background noise including the television. Mr Millett sought to have some of these recorded conversations enhanced, but was told it could not be done due to the noise.

69 Finally, John Terrance Marshall was called on behalf of the applicant Hany Saad. Mr Marshall was a consulting forensic engineer with experience in the investigation of fires and explosions. He gave evidence of having drawn several conclusions about the fire, based on the photographs and several witness statements. He said however that he never looked at the car. He concluded that there had been a severe fire starting within the passenger cabin area of the car, rather than in the boot of the car. He said there was evidence of a flashover fire, involving all of the flammable or combustible materials within the cabin compartment. He opined the fire started in the front seats, but he was unable to say whether it started in the front driver's seat or the passenger seat. He said there was more severe damage on the passenger seat, suggesting the fire may have started on that side, although it was also possible that the driver's seat was protected by the deceased's body. Mr Marshall said that he was aware that a disposable cigarette lighter was found in the vehicle. He said that he conducted a number of tests in relation to disposable lighters manufactured by Bic, Cricket, Scribe and Tokia. Mr Marshall found that it took an average of 3.3 milliseconds for the trigger of the cigarette lighters to move from the depressed (down) to the closed (up) position following the removal of a person's finger from the trigger. He said the flame would most likely extinguish slightly faster than that. He also conducted some tests to establish whether, if the trigger mechanism were held down by something like a rubber band, a lighter could be thrown and remain alight. He found that in each case, the flame extinguished almost as soon as the lighter was thrown, leading him to conclude that it is the movement of the lighter relative to the still air that causes the flame to extinguish. Mr Marshall tendered a lighter that he believed was similar to the remnants of the lighter found in the deceased's car (Exhibit U). He explained that he had conducted a series of tests with Exhibit U, involving holding the trigger down with a rubber band and dropping the lighter onto the ground. In 39 of the tests, the flame extinguished before the lighter hit the ground. One occasion, with the flame adjusted to its highest possible position, the lighter remained alight. On the basis of those tests, Mr Marshall said that he had formed the view that the lighter was unlikely to be an available ignition source.

70 Mr Marshall said that petrol vapour will ignite if it is between 2 and 8 per cent of the air. With a greater deal of vapour one would expect a more rapidly progressing fire. He said that the sound of vapour igniting if the concentration is at the low end is a sharp bang, and if the concentration is at the high end it sounds like a whoosh. In cross examination Mr Marshall agreed that the bang could have been caused by an exploding tyre or window exploding as well as by petrol ignition and he agreed that the igniting of the vapour could have been done by a match or a lit piece of paper.

The applicant's contentions

71 As can be seen the Crown's case was based on a large number of pieces of circumstantial evidence. They included the fact that the fire was caused by using an accelerant in the form of petrol; that the car doors were probably locked but there was a 5 or 6 cm gap at the top of the driver's window; that the deceased was found with his seat belt on; that there was no evidence of the deceased suffering from depression or some form of suicide ideation; that Celebrex, Diazepam and Temazepam had been ingested by the deceased; that a near empty 20 litre fuel container had been found in the deceased's garage; that Mary Saad had access to drugs; that there was hostility between Mary Saad and the deceased; the fact that the Dr Bar-Zeev's assessment of a urinary tract infection was dependent upon Mary Saad's own report of her symptoms; that Mary and Hany Saad had had time to go back to the car once they had checked with the triage nurse or alternatively that Hany Saad never went into the hospital until after setting fire to the car; and the fact that Hany Saad was seen to be pacing up and down inside the hospital. The Crown also relied on consciousness of guilt said to be evidenced by the fact that Hany Saad denied to police that he had a sexual relationship with Mary Saad; consciousness of guilt said to be evidenced by the fact that he told police falsely that he had slept for about two hours on a chair in the hospital; and consciousness of guilt said to be evidenced by the fact that Hany Saad and Mary Saad lied when they said that they had tried to phone home from the hospital and that no one had answered.

72 The applicants contend that none of those circumstances is sufficient to exclude a reasonable doubt as to the guilt of the applicants. As they would have it the fact that the fire was caused by accelerant does not provide evidence that Hany Saad started the fire. Of itself, they say, the use of accelerant is equally consistent with suicide. The same it is submitted is true of the fact that there was a 5 or 6cm gap left open at the top of the driver's window. In the applicants' contention that cannot be regarded as positive evidence of how the fire started - they say it would be mere speculation to reason from the gap at the top of the window to a conclusion that the fire was ignited by a source of flame introduced at that point - and they argue that such a conclusion would be contrary to Mr Marshall's evidence that throwing the lighter in at that point would not ignite the petrol and in any event it says nothing about the identity of whoever it was who threw it in. Equally, it is said, the fact that the deceased was found wearing his seat belt is in no way inconsistent with suicide. According to the applicants it is not to the point that members of the fire brigade had not before seen a case of self immolation in which the victim wore his or her seat belt. More generally, as they point out, there was evidence from Mr Kelleher of having come across situations in which people had committed suicide by self immolation in motor cars and from Dr Ranson of having come across cases in which people had committed suicide by pouring petrol over themselves inside cars after taking sedative drugs, and from Professor Drummer that forensically there was nothing necessarily inconsistent with death by suicide.

73 The applicants further submit that the ingestion of Celebrex, Diazepam and Temazepam was equally consistent with suicide as with homicide. The evidence, they submit, did not allow one to draw any absolute conclusions about the quantities of drugs ingested or the time that the drugs were ingested and it was not possible to draw any hard and fast conclusions as to whether the deceased was disabled by drugs from driving to the hospital. Moreover, according to the applicants, the assumption that the deceased was drugged before going to the hospital was an indispensable plank in the Crown case and it is submitted on that basis that the jury could not properly have convicted unless satisfied beyond reasonable doubt that the deceased was drugged at that time, which they could not properly have been.

74 The discovery of the 20 litre fuel can in the deceased's garage is said to be wholly unremarkable. The deceased had a lawn and a motor mower, and so it is submitted that one should expect to find a fuel can. The fact that Mary Saad had access to drugs is, it is said, equally unremarkable. After all, she and the deceased lived in the same house. It follows, say the applicants, that the deceased had the same access to her drugs as she did, and the deceased had been prescribed Celebrex himself for back pain and the fact that he took it was confirmed by the fact that some was found at his work station when searched after his death. The fact that there was hostility between the deceased and Mary Saad is said to be just as consistent with suicide as with homicide and the fact that Dr Bar-Zeev's diagnosis was dependent largely on Mary Saad's report did not mean that it was not accurate or that the report was false.

75 Turning then to Hany Saad's movements, the applicants submit that there were a number of holes in the Crown contention that the applicants had sufficient time to go back to the car and set it alight before Mary Saad was examined by the physician, including that they would not have known how much time they had to go back and do the job before Mary Saad was called in for examination; they would not have known that the security cameras at the hospital were not operating; no one can say where either of them was at a given time; if Hany Saad drove the car to the waiting area let out Mary Saad at approximately 1.08am and then drove the car to where he set it alight, one would have expected the car to have been torched at closer to 1.08am than 1.45am as the forensic and other evidence suggested; and it was extremely odd that Hany Saad would have selected a position which was relatively well lit from the hospital and otherwise likely to be seen by passers by. Furthermore, there was positive evidence that Mary Saad spoke to the triage nurse at 1.08am and probably went into the emergency area less than half an hour later, which is well prior to the fire at 1.45am, and given the evidence that she was treated in "less than an hour or so, maybe half an hour", the discharge time may have been about 2.38am. Further it is said, there is no doubt that Hany Saad was in the emergency area and the only way he could have got in there was with Mary Saad when the doctor let her in - because the triage administrator did not let him in - and although he was said to be pacing up and down anxiously, there was no evidence that Mary Saad was anxious. In those circumstances, it is submitted, it is surely highly unlikely that Hany Saad had just killed the deceased pursuant to an agreement or arrangement with Mary Saad to do so.

76 Finally, according to the applicants, the so-called lies said to evidence consciousness of guilt take the matter no further. In their submission it is only to be expected that Hany Saad would lie about his sexual relationship with his brother's wife. He had every reason to be ashamed of it, especially given his culture and religion, and every reason to wish to keep it secret from his own wife and other members of his family.

77 The fact that he told police that he was asleep for two hours in the chair at the hospital it is said may well be no more than poor recollection or problems in interpretation. Hany Saad was not interviewed by police until more than 10 months after the death of the deceased and according to the applicants may well have forgotten the period for which he went to sleep in the chair or it may just be that the interpreter misinterpreted what he said.

78 The so-called lie about calling home from the hospital is characterised as being even more problematic. Although Hany Saad was with Mary Saad when she affected to make the call from the hospital, there was nothing necessarily to show that he knew whom she called or what answer she received, and in any event it is said if Hany Saad had really been attempting to create the impression that he was surprised that the deceased was not at home, he would surely have got the triage administrator to make the call, thereby putting beyond doubt the fact that it had been made.

Verdict not unsafe and unsatisfactory

79 I do not find the applicants' submissions persuasive. In my judgment it was open to the jury, acting reasonably and appreciating the burden and standard of proof, to convict both of the applicants on the basis of that evidence.

80 It is true that none of the factors relied upon by the Crown was capable in itself of satisfying the jury beyond reasonable doubt that the applicants had entered into a combination to murder the deceased which Hany Saad carried out by dousing the interior of the car with petrol and setting it alight. But it was not necessary that the jury be satisfied beyond reasonable doubt about any one of those factors. All that was required was that when all of those factors were taken together they were capable of satisfying and did satisfy the jury beyond reasonable doubt that the applicants were guilty. The point is one of basic importance in any case in which the Crown relies on circumstantial evidence in order to prove its case. As Dawson, J. put it in Shepherd[7]:

"The judgments in Chamberlain[8] do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts -- individual items of evidence -- proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful."[9]

81 In this case there were no intermediate conclusions of fact that needed to be proved beyond reasonable doubt. Despite what is said on behalf of the applicants I do not accept that the question of whether the applicants drugged the deceased before leaving home to travel to the hospital was a critical element in the Crown's case. It is not the case that the jury could not have been satisfied of the applicants' guilt unless satisfied beyond reasonable doubt that the deceased was drugged at home. The possibility that the deceased was drugged at home was one very likely explanation of how the applicants went about his murder. But it was by no means an indispensable link in a chain of sequential reasoning.[10] The jury may well have taken the view that the applicants administered the drugs in some other fashion and still been well satisfied beyond reasonable doubt that some how or another they must have done it. The jury were not constrained to interpreting the evidence in the fashion suggested by the prosecutor.

82 Granted that where the Crown relies on circumstantial evidence in order to establish guilt, it is not open to the jury to convict unless the evidentiary circumstances bear no reasonable explanation other than guilt.[11] But as Dixon, C.J. explained in Plomp,[12] that means no more than that according to the common course of human affairs, the degree of probability that the occurrence of the facts sought to be proved would be accompanied by the occurrence of the facts proved is so high that the contrary cannot reasonably be supposed, and the circumstances which may be taken into account in that process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued. The class of acts and occurrences that may be considered includes circumstances whose relation to the fact in issue consists in the probability or increased probability judged rationally upon common experience, that they would not be found unless the fact to be proved also existed.

83 In this case, once all the facts and circumstances relied upon by the Crown are weighed, I consider that it would put an incredible strain on human experience if the sudden and unforseen death of the deceased were not the result of a combination between the applicants to be rid of him.

Hany Saad - Ground 3: Co-offender's post offence acts and utterances

84 Originally, it was contended on behalf of Hany Saad that the judge erred by failing to direct the jury that they had to be satisfied that there was sufficient independent evidence to establish participation by Hany Saad in a joint criminal enterprise with Mary Saad before they could use the post offence acts and utterances of Mary Saad as evidence against Hany Saad. That contention as such, however, was abandoned in the course of oral argument once it was seen that it ran counter to the High Court's decision in Ahern v The Queen[13]. In Ahern the High Court held that:

"The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity.

It may be observed that the matters which we have discussed have little to do with the order in which the evidence may be led. It will often be difficult, if not impossible, to segregate the evidence so as to enable a ruling to be given in advance. In most cases, evidence of the acts and declarations of alleged co-conspirators will be admissible in the form of separate acts to prove the fact of combination. In those circumstances, the trial judge may postpone until all the evidence is in, his ruling whether the proof of the combination sufficiently implicates an individual accused to allow the acts and declarations of the others in his absence to be used against him as proof of his participation..."[14]

85 Counsel for Hany Saad then submitted that, accepting that it was up to the judge as opposed to the jury to determine whether there was sufficient independent evidence of combination to render Mary Saad's acts and utterances admissible against Hany Saad, the judge had erred in holding that there was.

86 I reject that submission. On the basis of the evidence to which I have already referred, I consider that the judge was plainly correct in holding that there was sufficient evidence of a combination between the applicants to make Mary Saad's acts and utterances admissible against Hany Saad.

Mary Saad - Ground 3 and proposed Grounds 4 and 4B [15]

87 Counsel for Mary Saad sought leave to amend her grounds of appeal by adding, as Ground 3, that the verdict was unsafe and unsatisfactory, inasmuch as the jury, it was said, could not have excluded beyond reasonable doubt the possibility that Mary Saad was guilty of no more than the offence of assist offender contrary to s.325 of the Crimes Act 1958; and, as Grounds 4 and 4B, that the judge erred in failing to leave the offence of assist offender to the jury as an available alternative verdict and in failing to direct the jury that they could not convict Mary Saad of murder without first excluding beyond reasonable doubt the possibility that she was guilty of no more than the offence of assist offender contrary to s.325. The question of whether to grant leave was reserved to be decided at the same time as the remainder of the application. For the reasons which follow, I would refuse leave to amend.

Section 325 of the Crimes Act 1958

325. Accessories

(1) Where a person (in this section called "the principal offender") has committed a serious indictable offence (in this section called "the principal offence"), any other person who, knowing or believing the principal offender to be guilty of the principal offence or some other serious indictable offence, without lawful authority or reasonable excuse does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the principal offender shall be guilty of an indictable offence.

(2) If, on the trial of any person for a serious indictable offence, the jury are satisfied that the offence charged (or some other serious indictable offence of which the accused might on that charge be found guilty) was committed, but find the accused not guilty of it, they may find him guilty of any offence under sub-section (1) of which they are satisfied that he is guilty in relation to the offence charged (or that other offence).

(3) A person charged with an offence against sub-section (1) may be indicted or presented and convicted together with or before or after the principal offender and whether or not the principal offender is amenable to justice.

Alternative verdict of assist offender

88 I have already concluded that it was open to the jury to be satisfied beyond reasonable doubt that Mary Saad was guilty of murder. It follows that I reject the contention that the jury could not have been satisfied beyond reasonable doubt that Mary Saad was guilty of no more than the offence of assist offender.

89 I accept, however, that that is a different question to whether the judge erred by failing to direct the jury that it was open to them to convict Mary Saad of the alternative lesser offence of assist offender contrary to s.325 or alternatively by failing to direct the jury that it was not open to them to convict her of murder unless they were first able to exclude beyond reasonable doubt the possibility that she was guilty only of assisting the offender contrary to s.325. Once, it would have been plain the an affirmative answer to the first question was sufficient to answer the latter questions in the negative. That is no longer as clear as it used to be.

90 Before the High Court's decision in Gilbert v The Queen [16] the law was that where a judge correctly directs a jury as to the essential elements of a crime charged, a verdict of guilty could be taken as necessarily amounting to a finding of every essential element of the crime, and the verdict could not be set aside on the ground that the trial judge should have directed the jury that on the evidence they could convict the accused of a lesser offence.[17] As McHugh, J. explained in Gilbert, there was only one qualification, which was that where the evidence in substance gave rise to a defence by way of confession and avoidance, which the trial judge failed to put to the jury, the verdict could be set aside. So, for example, if on a charge of murder, the evidence suggested a defence of provocation or self defence or lawful excuse which was not put to the jury, a conviction of murder might be set aside. The basis of the exception was that although the verdict of guilty of murder necessarily amounted to a finding of every element of the charge of murder, the defences of provocation, self-defence and lawful excuse confessed those elements but added matters which qualify the legal effect of the findings inherent in the verdict of guilty of murder. If, however, an issue that should have been left to the jury were not in substance a matter of confession and avoidance, and the factual elements of the issue were negated by the verdict, the general rule applied.[18]

91 But the majority in Gilbert held that that was no longer the law. Gleeson, C.J. and Gummow, J. said that the statements made by Williams, Webb and Taylor, JJ. and by Fullagar, J. in Mraz v The Queen[19] were inconsistent with the notion that an appellate court must assume that a jury approaches the task of fact finding mechanistically and divorced from the realities. It was rather to be assumed that where the jury are made aware that a lesser offence is open on the evidence they are more likely to convict the accused of that lesser offence whereas if the only choice is the greater offence or nothing, they are more likely to convict the accused of the greater offence. As their Honours put it:

"This is an age of concern for the victims of violent crime, and their relatives. To adapt the words of Fullagar J, [in Mraz] a jury may hesitate to acquit, and may be glad to take a middle course which is offered to them.[20]

92 Ironically, the concern in Mraz was that the accused had been prejudiced by the judge leaving to the jury a possible alternative verdict of manslaughter which was not open on the evidence, and thereby, as it was held, depriving him of a chance of being acquitted altogether.[21] In a sense the logic was diametrically opposed to the reasoning in Gilbert. Gleeson, C.J. and Gummow, J. held that the judge in Gilbert erred by failing to leave to the jury for consideration an alternative possible verdict of manslaughter which was open on the evidence and thereby deprived the accused of a chance of being convicted of an offence (albeit one different to and less than that with which he was charged). Nevertheless, as the majority held, the verdict of guilty of murder would have to be set aside. The proviso could not be applied, because it could not be said that a rational jury properly instructed could not have failed to reach the state of satisfaction necessary to convict of murder if the alternative of manslaughter had been left for consideration.

93 Counsel for Mary Saad contends that the position here is the same. He argues that the principle or underlying rationale in Gilbert applies to all cases in which a judge fails to leave a lesser available offence as a possible alternative verdict. It follows, in counsel's submission, that it was incumbent on the judge to leave the offence of assist offender contrary to s.325 as a possible available alternative verdict. And the proviso cannot be applied, he says, because it cannot be said that a rational jury properly instructed could not have failed to reach the state of satisfaction necessary to convict of murder if the alternative offence of assist offender had been left to them as an available option. I do not accept that contention.

94 In Gilbert, the Gleeson, C.J. and Gummow, J. adopted the test for application of the proviso which the Canadian Supreme Court applied in R v Jackson. [22] As I follow their Honours' reasoning, they did so on the basis R v Jackson was factually similar to Gilbert and similar in that the jury had been adequately directed on murder but inadequately directed on manslaughter and had convicted the accused of murder.[23] Accordingly, with respect, I read their Honours' conclusion as going no further than the application of the proviso in a case of murder in which the trial judge failed to leave manslaughter to the jury as a possible alternative verdict. Counsel for Mary Saad contends that Gleeson, C.J.'s and Gummow, J.'s reference to R v Jackson was intended also to signify approval of the view taken in Canada that, no matter what is charged,[24] the failure of a judge to leave to the jury a lesser alternative charge open on the evidence[25] must result in a guilty verdict being set aside unless the proviso can be applied. I do not think that is so.

95 As Ormiston, J.A. demonstrated in R v Kane[26], the Canadian jurisprudence depends largely on a questionable interpretation of the Canadian Criminal Code and on a degree of dogmatic insistence that all "included offences" should be resolved by verdict. With respect, it is unlikely that Gleeson, CJ. and Gummow, J. intended that legal reasoning of that kind is to be adopted in this country. Significantly, too, Callinan, J., who was the other majority judge in Gilbert, reached the same conclusion as Gleeson, C.J. and Gummow, J., without any reference to Canadian authority, and Gleeson, C.J. and Gummow, J. referred to Callinan, J's judgment with approval. Callinan, J.'s conclusion was in terms confined to the proposition that where the charge is murder and the judge fails to leave an available alternative verdict of manslaughter for the jury's consideration, a verdict of guilty of murder must be set aside unless the proviso can be applied. Admittedly, Callinan, J. referred with approval to observations of Pincus, J.A. in R v Donald[27], and on one view of the matter Pincus, J.A. was directing his observations to cases apart from murder. But R v Donald, like R v Jackson, was a case of murder in which the trial judge erred by failing to direct the jury that a verdict of manslaughter was available for consideration. Accordingly, with respect, I read Callinan, J.'s reference to the case as confined to that context.

96 Further, in Gillard v The Queen,[28] a High Court of five members took the law as stated in Gilbert to be that where the offence which is charged is murder and the judge fails to leave to the jury a viable case of manslaughter, the accused is wrongly deprived of an opportunity to have the jury consider "an intermediate position", and a verdict of guilty of murder will therefore be set aside. There is no suggestion in Gillard that the principle in Gilbert is to be understood as applying to a case other than one of murder in which the judge fails to leave an available case of manslaughter.

97 This court has also twice before considered the question of whether the principle in Gilbert and Gillard has application beyond a case in which the offence which is charged is murder and the error of the trial judge is to fail to leave to the jury an available alternative case of manslaughter. In the first case it was doubted that the principle went any wider that the murder/manslaughter dichotomy and in the second it was held it does not. In R v Doan[29], Charles, J.A. undertook a review of some of the authorities in other states and concluded that it was doubtful that the principle extends beyond the murder/manslaughter dichotomy.[30] Vincent, J.A. agreed.[31] In R v Kane[32], Ormiston, J.A.[33] reviewed a large number of authorities and concluded that, except in cases where murder has been charged and manslaughter should be left to the jury, there is no basis in principle for insisting on alternative charges being left to the jury in every case. It depends, his Honour stated, on all the circumstances and in particular on whether the accused's counsel asks that the alternative charge be left to the jury or otherwise raises the issue.[34] Callaway, J.A., also considered a number of the authorities and concluded that it is not every alternative verdict that must be left to the jury and that the answer to whether any such verdict should be left depends on all the circumstances, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope of forensic judgment on the part of counsel.[35]

98 Admittedly, this case is different to Doan and Kane in that the offence charged here was murder and that was not so in Doan or Kane. But there are decisions of the Victorian Court of Criminal Appeal which imply that the approach in cases of homicide should be as Ormiston, J.A. stated in Kane. Of course they were decided before Gilbert and Gillard, and they must be read with some care. But at the level of principle they are instructive. In R v Taylor[36] the question was whether the judge had caused a miscarriage of justice by leaving a s.325 count to the jury contrary to the application of defence counsel that the jury not be told of that possibility. Their Honour's stated that a trial judge should leave a s.325 count to the jury in all cases where the evidence makes it appropriate to do so. Significantly for present purposes, they did not suggest that failure to do so would necessarily vitiate a verdict of guilty of murder. They were making the opposite point that it is not a miscarriage of justice to leave an available alternative count, whatever the wishes of the accused.[37] Similarly, in R v Middap[38] the court gave approval to what had been said in Taylor and observed that Taylor represented the long established practice in this state. Their Honours further noted that Taylor should not be taken to mean that a trial judge is to disregard the question of unfairness to an accused and that it is not to be read as a mandatory injunction to be obeyed by trial judges irrespective of the question of fairness.[39] The focus was on whether the accused had been prejudiced by having the alternative count left to the jury when the accused did not want it left to them. It was not suggested that the accused would be prejudiced if an available alternative count of assist offender were not left to the jury.

99 The question of whether the Gilbert principle applies to cases other than failure to leave manslaughter as an alternative to murder has also been considered recently by the South Australian Court of Criminal Appeal. In R v Matthews & Burgess[40] the accused was charged with murder and s.24(1) of the Criminal Law Consolidation Act 1935 (SA) which provided that a person ("the accessory") who, knowing or believing that another person ("the principal offender") has committed an offence, does an act with the intention of (a) impeding investigation of the offence; or (b) assisting the principal offender to escape apprehension or prosecution or to dispose of proceeds of the offence, is guilty of an offence. The issue was whether Gilbert made it mandatory for the trial judge to leave an offence under s.24(1) as a possible althernative verdict, and the court held that it did not. As Duggan, J., with whom Debelle and Layton, JJ. agreed, put it:

"79. The cases to which reference has been made were concerned with an alternative verdict of guilty of a lesser offence arising out of the same conduct. In Gilbert's case Gleeson CJ and Gummow J referred to statements by the majority of the court in Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493 which were "inconsistent with the notion that an appellate court must assume, on the part of the jury, a mechanistic approach to the task of fact-finding, divorced from a consideration of the consequences": 201 CLR at 421.

80. In my view s 241 of the Act does not provide for an alternative verdict of the type discussed in the cases of Gilbert and Gillard. Although the offending for which s 241 provides has an historical connection with the facts of the offence alleged, it is based on circumstances which, of necessity, occur after the principal offence has been committed. I do not think that it can be said that an accused person has "lost a chance which was fairly open to him" of being found not guilty of murder by reason of the fact that a verdict of assisting a principal offender to that offence of murder was not left to the jury..."

100 With respect, I agree. Whatever be the reach of the principle identified in Gilbert, none of the judgements in that case says that it goes further than requiring a judge to leave to the jury lesser alternative offences that are "included offences" in the Canadian sense and, although the offence of being an accessory after the fact, or as it now is in Victoria, the offence of assist offender contrary to s. 325, is one of which a jury may convict an accused who stands charged with murder, it is not an included offence in the sense that it is comprised of any of the acts which comprise the offence of murder.

101 It follows I think that, even where the offence charged is one of murder, the question of whether the alternative charge of assist offender should be left to the jury is to be decided according to the general principle identified in R v Kane, of what justice requires in the particular circumstances of the case, and that in turn depends on all the circumstances of the case, including the dictates of the public interest, fairness to the accused, the course of the trial and the scope for forensic judgment on the part of the accused.[41] That approach accords with the practice in England. [42]

102 The authorities identify a number of factors as bearing on the issue of whether a lesser offence should be left to the jury as a possible alternative verdict As the English Court of Appeal put it in Reg. v Fairbanks:[43]

"These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case had been presented to the court: for example if the defence has never sought to deny that the full offence charged has been committed, but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense."[44]

Consequently, where the offence charged is grave and the alternative offence is trifling it may be better not to distract the jury by forcing them to consider something which is remote from the real point of the case. On the other hand, where the evidence is such that the accused ought at least to be convicted of the alternative offence, but the jury may be hesitant to convict the accused of the offence charged, the alternative should be left. Fairness to the accused may also require that the lesser alternative offence be left to the jury where there is a real chance that the jury would prefer to convict the accused of the lesser charge if it were an available option. Above all, however, one must keep in mind the course of the trial. Other things being equal the effect of forensic judgment on the part of counsel is likely to be one of the most important considerations for, notably, that was the basis on which Callinan, J. distinguished Ross[45] in Gilbert. As his Honour put it, counsel in Ross had made an informed decision to abstain from seeking an alternative verdict of manslaughter. It has since been held in Gillard that counsel's calculated abstention from seeking that manslaughter be left as an alternative to murder is no longer a basis for the judge not to leave it as an alternative verdict.[46] But for the reasons already given, I take Gilbert and Gillard to be confined to cases in which the offence charged is murder and the ground of appeal is the judge's failure to leave to the jury an available alternative verdict of manslaughter. As I see it, calculated abstention from raising any other possible alternative verdict remains a very relevant consideration in other cases.[47]

103 Counsel for Mary Saad argued that even accepting all that were so, the particular circumstances of this case were such that the dictates of public interest, fairness to Mary Saad and the course of the trial were such that it was incumbent on the judge to leave assist offender as an available alternative verdict. In counsel's submission, the alternative verdict of assist offender was plainly open on the evidence. In his submission, the jury may well not have been satisfied that Mary Saad was present when the deceased was killed, or knew in advance of the deceased's death that Hany Saad intended to kill the deceased, and the jury may therefore have accepted or not been prepared to exclude the possibility that Mary Saad's calls to Dr Zaky after the deceased's death were motivated solely by concern for Hany Saad. As counsel would have it, it was therefore a reasonable possibility that Mary Saad's participation went no further than as an accessory after the fact. More specifically in counsel's submission, one could not reasonably exclude the possibility that Mary Saad knew nothing of the deceased's death until after his death, and then realised that her lover Hany Saad was the killer; at that point had realised or been told that Hany Saad had used her medication in order to sedate the deceased before setting him alight; and then come to the view that if the police found out about the medication which Dr Zaky had prescribed, they would eventually work out that Hany Saad had used it for the purposes of the crime or perhaps even wrongly suspect her of the crime.

104 Counsel for Mary Saad further submitted that Mary Saad's case at trial had been run in a way that left open the possibility of an alternative verdict of a lesser offence. Counsel relied on the following passage from defence counsel's final address as establishing that it was so:

"We know that self-immolation is a word, and we know that the experts that have been to suicides with petrol in cars before. We know that there's nothing inconsistent in the medical evidence with suicide, and we know that there is, therefore, no direct evidence that implicates Mary Saad in the crime of murder. No direct evidence.

So now you are being thrown into what is the worst kind of case because it is the most controversial, a circumstantial case. In a circumstantial case the Crown has to knock out everything. They have to prove beyond reasonable doubt that it is murder. That means any competing hypothesis has to be excluded. They have to exclude suicide or anything else.

In Mary Saad's case, if I can be completely blunt, what that means is they have to exclude suicide, and then the other things you have to look at, and for completeness sake, did Hany do this as a frolic of his own? You have to look at that, and then you have to say that the only conclusion left to your, when you take all of these bits of [the prosecutor's] rope together, is to say, 'Well, the only thing that is there and available and proved beyond reasonable doubt to me is murder.' I say you can't do that, and I suggest to you with great respect you can't do that on a phone call when you have a snippet of a phone call without the context of it from somebody's who is plainly agitated."[48]

105 Alternatively, counsel for Mary Saad contended, this was not a case in which defence counsel had calculatedly abstained from raising the possibility of an alternative verdict of assist offender. Although it was true that defence counsel had not asked the judge to leave the lesser charge as an available alternative verdict, that should be seen as explicable on the basis that senior defence counsel had had to leave the trial as soon as he had completed his final address, in order to attend to another trial that was about to begin, and had left behind a junior who may not have understood all the issues in the case.

106 Senior counsel for the Crown responded that it was apparent from reading all of the transcript that it was never suggested that the offence of assist offender was reasonably open as a possible alternative verdict. To the contrary, he argued, it was plain that defence counsel had made a calculated decision not to raise the offence as a possibility; for to have done so would surely have been extremely damaging to Mary Saad. Her defence was that she knew nothing of the way in which the deceased had died, except perhaps that it was a suicide. To accept, or even hint at accepting guilt for the offence of assist offender, may have signalled to the jury a degree of knowledge coming close in the circumstances of the case to the knowledge necessary for acting in concert. From there it would have been but a short step for the jury to conclude that Mary Saad had indeed known enough of what was going on to have been acting in concert.

107 Further, it was submitted for the Crown, it was fanciful to think that the jury might have accepted that Mary Saad was only involved as an accessory after the fact. The incontrovertible facts were that it was Mary Saad who had gone several times to medical practitioners before the deceased's death in order to obtain drugs of the kind that were used to sedate the deceased. Mary Saad was the one who prepared the food on the night of the deceased's death and was therefore best placed to add the drugs to the deceased's food or drink. On the uncontradicted evidence given by the pharmacologist, Dr Drummer, and the pathologist, Dr Ranson, the time at which the drugs were ingested coupled with the amount of the drugs ingested meant that the deceased would have been profoundly affected by the drugs if not comatose when in the car travelling with Hany Saad and Mary Saad to the hospital at about 1.00 am. At the very least, therefore, Mary Saad must have known that Hany Saad had drugged the deceased, or thought it was very likely, if indeed she had not done it herself, and therefore known or believed it to be likely that Hany Saad intended to kill the deceased; and therefore she was acting in concert.

108 In my opinion the Crown's submissions are persuasive. I see nothing in the transcript of the trial which expresses or implies any idea that Mary Saad may have been involved only as an accessory after the fact. The only thing said which comes near that sort of analysis is the Delphic passage from the final address of counsel for Mary Saad which is set out above, and in my judgment that falls a long way short of the mark. Although it mentions the possibility of Hany Saad acting on a frolic of his own, there is no suggestion that Mary Saad assisted him after the commission of the offence, and the explanation of the telephone calls to Dr Zaky remained throughout that Mary Saad had nothing to do with the death of the deceased, either before it or after it, and that she acted irrationally in calling Dr Zaky because she was shocked or stressed or otherwise affected by the grief which resulted from her husband's death. As it appears to me, defence counsel was assiduous to avoid any suggestion that Mary Saad had participated as an accessory after the fact or otherwise lest it prejudice Mary Saad's chances of a complete acquittal, and I am strengthened in that conclusion by the fact that defence counsel plainly did not ask the judge to leave the offence of assist offender as a possible alternative verdict. I exclude as untenable the suggestion, wholly unsupported by evidence, that junior counsel would not have known enough of the issues to run the case in exactly the way that leading counsel had planned it.

109 I do not put as much store on the improbability of the jury finding that Mary Saad was only liable as an accessory after the fact. Although the evidence is in my opinion overwhelming that Mary Saad saw the deceased in a drug affected condition in the car on the way to the hospital, and knew as she left him to go into the hospital that he was about to be killed, in the end that was a matter for the jury and I cannot exclude altogether the possibility that the jury may have come to another view if the option of convicting Mary Saad as an accessory after the fact had been made available to them. That assumes of course that the jury might have been prepared to disregard their sworn duty to give a verdict in accordance with the evidence. And, as McHugh, J. pointed out in Gilbert,[49] such an assumption runs counter to legal policy. But in the end it was just such an assumption on which the decision in Gilbert was based.[50] I should say, therefore, that if the principle in Gilbert applied, it would follow in my opinion that the verdict that Mary Saad was guilty of murder would have to be set aside and a new trial of Mary Saad would have to be had. But, for the reasons which I have stated, I do not consider that Gilbert applies. I take the test to be what justice requires in the particular circumstances of the case.

110 Given what I perceive to be the overwhelming evidence of Mary Saad's guilt, the way in which the trial was conducted, and what I take to have been defence counsel's forensic decision that the jury should not be left with assist offender as a possible alternative verdict for consideration, I conclude that it was not contrary to the interests of justice that the offence of assist offender was not left to the jury as a possible alternative verdict. For the same reasons, I conclude that the judge did not err by failing to direct the jury that they had to exclude the possibility that Mary

Saad was guilty of the offence of assist offender before they could convict her of murder.

Conclusion

111 In the result, I would refuse Mary Saad's application for leave to amend her grounds of appeal and I would dismiss both applicants' applications for leave to appeal against conviction.

112 I have had the advantage of reading in draft the reasons for judgment of Nettle, JA. I agree, for the reasons given by his Honour, that the applications for leave to amend the grounds of appeal should be refused, and that the applications for leave to appeal against conviction should be dismissed.

[1] Several grounds of appeal were abandoned in the course of oral argument. In the end, the only grounds of appeal pressed on behalf of Hany Saad were Grounds 3 and 4 and, on behalf of Mary Saad, Ground 2 and proposed Grounds 3, 4 and 4B.

[2] [1994] HCA 63; (1994) 181 C.L.R. 487 at 493-4.

[3] [1994] HCA 63; (1994) 181 C.L.R. 487 at 501-504, per Brennan, J. and at 524-525, per McHugh, J.

[4] Jones v The Queen (1997) 191 C.L.R. 439_,_ at 442 per Brennan, J.

[5] ibid at 468; cf. MFA v the Queen [2002] HCA 53; (2002) 213 C.L.R. 606 at 615 [26], per Gleeson, C.J. and Hayne and Callinan, JJ.

[6] cf. M v The Queen [1994] HCA 63; (1994) 181 C.L.R. 487 at 505, per Brennan, J.

[7] Shepherd v The Queen [1990] HCA 56; (1990) 170 C.L.R. 573.

[8] [1984] HCA 7; (1984) 153 C.L.R. 521.

[9] ibid at 585.

[10] cf. R v Kotzmann [1999] VSCA 27; [1999] 2 V.R. 123 at 139 [51]- [54] per Batt, J.A. and at 138 [47], per Callaway, J.A.

[11] Knight v The Queen [1992] HCA 56; (1992) 175 C.L.R. 495 at 509-510, per Brennan and Gaudron, JJ.

[12] Plomp v The Queen [1963] HCA 44; (1963) 110 C.L.R. 234 at 243.

[13] [1988] HCA 39; (1988) 165 C.L.R. 87.

[14] [1988] HCA 39; (1988) 165 CLR 87 at 103 - 104.

[15] Proposed Ground 4A was not pressed in argument.

[16] (2000) 201 C.L.R. 414.

[17] Ross v The King [1922] HCA 4; (1922) 30 C.L.R. 246 at 254; R v Evans and Lewis [1969] VicRp 109; [1969] V.R. 858 at 871; Gilbert v The Queen (2000) 201 C.L.R. 414 at 423-424 [26], per Mc Hugh, J. in diss.

[18] Gilbert v The Queen (2000) 201 C.L.R. 414 at [26] and [27].

[19] [1955] HCA 59; (1955) 93 C.L.R. 493.

[20] (2000) 201 C.L.R. 414 at 421 [17].

[21] i.e., by depriving the jury of a murder or nothing choice.

[22] [1993] 4 S.C.R. 573.

[23] (2000) 201 C.L.R. 414 at 424 [18].

[24] scil. be it murder or anything else.

[25] In Canadian parlance, "an included charge".

[26] [2001] VSCA 153; (2001) 3 V.R. 542 at 565-573.

[27] Unreported QCA 19/12/97 BC 9707418.

[28] [2003] HCA 64; (2003) 139 A.Crim.R. 100

[29] [2001] VSCA 142; (2001) 3 V.R. 349.

[30] ibid at 356 [26].

[31] ibid at 362 [46].

[32] [2001] VSCA 153; (2001) 3 V.R. 542.

[33] In diss. but not in point of principle.

[34] ibid at 572 [63].

[35] ibid at 588 [116].

[36] Unreported, Court of Criminal Appeal, 22 June 1989 at p.89.

[37] cf. Mraz v The Queen [1955] HCA 59; (1955) 93 C.L.R. 493 at 510.

[38] (1992) 63 A.Crim.R. 434.

[39] ibid. at 440.

[40] [2005] SASC 289.

[41] R v Kane (2001) 3VR 542 at 588 [116], per Callaway, J.A.

[42] Reg. v Fairbanks [1986] 1 W.L.R. 1202

[43] ibid.

[44] ibid. at 1205-6; see also Reg. v Maxwell [1988] 1 W.L.R. 1265 at 1269.

[45] Ross v The King [1922] HCA 4; (1922) 30 C.L.R. 246.

[46] Indeed in Gillard the verdict was set aside for failure to leave manslaughter even though defence counsel had asked that it not be left

[47] cf. TKWJ v The Queen [2002] HCA 46; (2002) 212 C.L.R. 124 at 128[7], at 150 [80] and [81], at 159 [110] and [111].

[48] It is apparent when read in context that the phone conversation to which defence counsel was referring was one of the two telephone conversations between Mary Saad and Dr Zaky after the deceased had died.

[49] Gilbert v The Queen (2000) 201 C.L.R. 414 at 425 [30], per McHugh, J.

[50] Gilbert v The Queen (2000) 201 C.L.R. 414 at 421[4], per Gleeson, C.J. and Gummow, J.