Muir and Gotterson JJA and Applegarth J, Judgment of, the Court
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH
DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS
– OTHER
MATTERS – where the appellant’s pre-trial application for a no
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITHDISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS– OTHERMATTERS – where the appellant’s pre-trial application for a nojury order was refused – where theappellant sought to establish that thetrial, because of its complexity and length, was likely to be unreasonablyburdensome to ajury – where the appellant submits that the learned ChiefJustice articulated a general rule of preference for a trial by juryand, in sodoing, erred in the exercise of the discretion – where the appellant alsorelied on substantial pre-trial prejudicialpublicity – where theappellant submits that the learned Chief Justice erred in proceeding on thebasis that pre-trial publicitycould always be satisfactorily addressed bydirections – whether the learned Chief Justice erred in refusing to make ano juryorder
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF
APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE
– GENERAL
PRINCIPLES – where the appellant alleges that Justice Peter Lyons erred in
refusing defence applications to
exclude from evidence: the record of interview
of 22 April 2003
the record of the “walk through” interview of 25
April
2003
and the record of interview of 31 March 2004 – where the
appellant contends that his Honour’s discretion miscarried
as the
prejudicial effect of the evidence outweighed its probative value
it was unfair
to the accused to admit the evidence
and
considerations of public policy
rendered the admission of the evidence unacceptable – where the appellant
further contended
that his Honour erred in determining that, at the time of the
interview of 22 April 2003 and the “walk through” interview
of 25
April 2003, the appellant was a “person of interest” rather
than a suspect – where the appellant submits
that his Honour erred in
finding that, even assuming s 249 of the Police Powers and
Responsibilities Act 2000 (Qld) applied, the appellant’s rights were
not abrogated by the continuation of the interview of 22 April 2003 in the
absence
of his father and the exclusion of his father from the “walk
through” interview of 25 April 2003 – where the appellant
argues, in
respect of the record of interview of 31 March 2004, that his Honour placed
too little weight on the length of the interview,
the length of time the
appellant was in custody and the actions of police whilst he was in custody
– whether the evidence ought
to have been excluded – whether a
miscarriage of justice occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF
APPEAL – IMPROPER ADMISSION OR REJECTION OF EVIDENCE
– GENERAL
PRINCIPLES – where the appellant alleges that Justice Peter Lyons erred in
admitting the evidence of Dr Jones
and Mr Kennedy regarding the comparison
of foot print impressions recovered from the crime scene with evidence of
the appellant’s
foot impressions – where the purpose of the evidence
was to prove that the appellant could not be excluded as having made the
footprints – where the experts expressed no conclusion about the
probability that the foot impressions were made by the appellant
– where
the appellant submits that the evidence is inadmissible as there are no criteria
against which the value of the opinions
can be judged – where the
appellant further contends that the evidence ought to have been excluded on a
discretionary basis
as its prejudicial effect outweighed its probative value
– where the appellant relies on the “white coat effect”
and
the risk that the evidence may have been misused by the jury as positive
evidence of identification of the appellant –
whether the evidence ought
to have been excluded – whether a miscarriage of justice
occurred
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY
EXCESSIVE OR
INADEQUATE – where the appellant was sentenced to life imprisonment for
each of the three counts of murder of
which he was convicted – where 1,299
days of presentence custody was declared imprisonment already served under each
sentence
– where the sentencing judge ordered that the appellant not be
released from imprisonment until he had served a minimum of
35 years
imprisonment – where the appellant alleges that the sentencing judge erred
in concluding that the subject murders
fell within the worst categories of
murder and in imposing a non-parole period substantially in excess of the
statutory minimum –
where the appellant seeks to distinguish the subject
offences from those committed in Maygar – whether there was an
error in the exercise of the sentencing judge’s discretion – whether
the sentence was manifestly
excessive
Corrective Services Act 2006
(Qld), s 159A(3)
Criminal Code 1899 (Qld), s 302(1)(a),
s 302(1)(b), s 305(1), s 305(2), s 590AA,
s 615
Criminal Law Amendment Act 2012 (Qld) Act No 19 of 2012,
s 3
Penalties and Sentences Act 1992 (Qld),
s 159A(3)
Police Powers and Responsibilities Act 2000 (Qld),
Reprint No 3 rv, s 249, s 268
Police Responsibilities Code
2000 (Qld), s 34
Bugmy v The Queen (1990) 169 CLR 525
[1990] HCA 18,
cited
Deakin v The Queen (1984) 58 ALJR 367
[1984] HCA 31,
cited
Festa v The Queen (2001) 208 CLR 593
[2001] HCA 72,
cited
Gilbert v The Queen (2000) 201 CLR 414
[2000] HCA 15,
cited
House v The King (1936) 55 CLR 499
[1936] HCA 40,
cited
Lewis v R (1987) 88 FLR 104
[1987] NTCCA 3, cited
Makita
(Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
[2001] NSWCA 305,
cited
Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25,
cited
Morgan v R (2011) 215 A Crim R 33
[2011] NSWCCA 257,
considered
Murdoch v The Queen (2007) 167 A Crim R 329
[2007] NTCCA
1, cited
Papakosmas v The Queen (1999) 196 CLR 297
[1999]
HCA 37, cited
R v Atkins & Atkins [2010] 1 Cr App R 8
[2009]
EWCA Crim 1876, cited
R v Bonython (1984) 38 SASR 45
(1984) 15 A
Crim R 364, cited
R v Dastagir [2013] SASC 26, cited
R v
Fardon [2010] QCA
317, cited
R v Glennon (1992) 173 CLR 592
[1992] HCA 16,
cited
R v Hayes [2008] QCA
371, considered
R v Jackson and Hakim (1988) 33 A Crim R 413,
cited
R v LM [2004] QCA
192, distinguished
R v Maygar
Ex parte Attorney-General (Qld) [2007]
QCA 310, considered
R v Sica [2011] QSC 261, related
R
v Sica, unreported, Supreme Court, Qld, SC No 68 of 2011 (Application
to exclude recordings), 10 January 2012, related
R v T (Footwear Mark
Evidence) [2011] 1 Cr App R 9
[2010] EWCA Crim 2439, considered
R v
Tang (2006) 65 NSWLR 681
[2006] NSWCCA 167, cited
The State of
Western Australia v Martinez (2006) 159 A Crim R 380
[2006] WASC 25, cited
Tofilau v The Queen (2007) 231 CLR 396
[2007] HCA 39, cited
Veen v The Queen [No 2] (1988) 164 CLR 465
[1988] HCA 14, cited
Wong v The Queen (2001) 207 CLR 584
[2001]
HCA 64, cited
Judgment (342 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - CONTROL OF PROCEEDINGS - OTHER MATTERS - where the appellant's pre-trial application for a no jury order was refused - where the appellant sought to establish that the trial, because of its complexity and length, was likely to be unreasonably burdensome to a jury - where the appellant submits that the learned Chief Justice articulated a general rule of preference for a trial by jury and, in so doing, erred in the exercise of the discretion - where the appellant also relied on substantial pre-trial prejudicial publicity - where the appellant submits that the learned Chief Justice erred in proceeding on the basis that pre-trial publicity could always be satisfactorily addressed by directions - whether the learned Chief Justice erred in refusing to make a no jury order
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where the appellant alleges that Justice Peter Lyons erred in refusing defence applications to exclude from evidence: the record of interview of 22 April 2003; the record of the "walk through" interview of 25 April 2003; and the record of interview of 31 March 2004 - where the appellant contends that his Honour's discretion miscarried as the prejudicial effect of the evidence outweighed its probative value; it was unfair to the accused to admit the evidence; and considerations of public policy rendered the admission of the evidence unacceptable - where the appellant further contended that his Honour erred in determining that, at the time of the interview of 22 April 2003 and the "walk through" interview of 25 April 2003, the appellant was a "person of interest" rather than a suspect - where the appellant submits that his Honour erred in finding that, even assuming s 249 of the Police Powers and Responsibilities Act2000 (Qld) applied, the appellant's rights were not abrogated by the continuation of the interview of 22 April 2003 in the absence of his father and the exclusion of his father from the "walk through" interview of 25 April 2003 - where the appellant argues, in respect of the record of interview of 31 March 2004, that his Honour placed too little weight on the length of the interview, the length of time the appellant was in custody and the actions of police whilst he was in custody - whether the evidence ought to have been excluded - whether a miscarriage of justice occurred
[3]
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES - where the appellant alleges that Justice Peter Lyons erred in admitting the evidence of Dr Jones and Mr Kennedy regarding the comparison of foot print impressions recovered from the crime scene with evidence of the appellant's foot impressions - where the purpose of the evidence was to prove that the appellant could not be excluded as having made the footprints - where the experts expressed no conclusion about the probability that the foot impressions were made by the appellant - where the appellant submits that the evidence is inadmissible as there are no criteria against which the value of the opinions can be judged - where the appellant further contends that the evidence ought to have been excluded on a discretionary basis as its prejudicial effect outweighed its probative value - where the appellant relies on the "white coat effect" and the risk that the evidence may have been misused by the jury as positive evidence of identification of the appellant - whether the evidence ought to have been excluded - whether a miscarriage of justice occurred
[4]
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE - where the appellant was sentenced to life imprisonment for each of the three counts of murder of which he was convicted - where 1,299 days of presentence custody was declared imprisonment already served under each sentence - where the sentencing judge ordered that the appellant not be released from imprisonment until he had served a minimum of 35 years imprisonment - where the appellant alleges that the sentencing judge erred in concluding that the subject murders fell within the worst categories of murder and in imposing a non-parole period substantially in excess of the statutory minimum - where the appellant seeks to distinguish the subject offences from those committed in Maygar - whether there was an error in the exercise of the sentencing judge's discretion - whether the sentence was manifestly excessive
A J Glynn QC, with J P Benjamin, for the applicant/appellant
[39]
A W Moynihan QC, with B G Campbell, for the respondent
[40]
Director of Public Prosecutions (Queensland) for the respondent
[41]
[1] THE COURT: After an 80 day trial before a judge and jury, the appellant, Massimo Sica, was convicted on 3 July 2012 on three counts of murder. On 5 July 2012 he was sentenced to life imprisonment on each count. It was declared that the appellant had served 1,299 days in pre-sentence custody between 29 October and 13 November 2008, and between 30 December 2008 and 5 July 2012 which was declared as time already served. It was further ordered, pursuant to s 305(2) of the Criminal Code 1899 (Qld), that the appellant must not be released from imprisonment until he has served a minimum of 35 years imprisonment.
[42]
[2] On 27 July 2012, the appellant filed a Form 26 document in this Court by which he has appealed against the convictions and applied for leave to appeal against sentence. The document as filed listed some 12 grounds, the first of which (Ground 1) related to the sentence application and the remainder (Grounds 2 to 12) to the convictions. It is common ground that in March and April this year, the appellant abandoned Grounds 8 to 12 inclusive.
[43]
[3] The live grounds of appeal against the convictions all concern decisions on pre-trial applications. None of them relate to the conduct of the trial, the summing up or the jury verdicts.
[44]
[4] One of these pre-trial applications was made by the accused for a non-jury order under s 615 of the Criminal Code. It was refused on 26 August 2011. Others were applications under s 590AA of the Criminal Code made by the appellant for the exclusion from the evidence of a police record of interview of him on 22 and 23 April 2003, a police recording of a walk-through in which he participated on 25 April 2003 and a police record of interview of him on 31 March and 1 April 2004. All of those applications were refused on 10 January 2012. Also, on that date, the appellant's pre-trial application for the exclusion of evidence of Mr Robert Kennedy and Dr Sara Jones was refused.
[45]
[5] On 22 April 2003, the appellant summoned police to a house at 20 Grass Tree Close, Bridgeman Downs where Neelma Singh, then aged 24 years, her brother, Kunal, 18 years old, and her sister, Sidhi, 12 years old, had been living with their parents. The bodies of the three siblings together with some bed linen were found in a spa bath located on the upper floor of the house.
[46]
[6] The appellant had been in a sexual relationship with Neelma. The prosecution case was that he had gone to the house in the middle of the night on Easter Sunday, 20 April 2003; that Neelma was expecting his visit; that something happened between them; and that he strangled her, intending to kill her. At a time when Kunal and Sidhi were in their beds and probably asleep, he struck each of them to the head with the tines of a garden fork. His motive for these attacks was to ensure that they would not live to tell of his contact with Neelma that evening.
[47]
[7] According to the prosecution case, the appellant then put each of the bodies and the bed linen in the spa bath in the ensuite of the main bedroom. By that time, Neelma and Sidhi were dead. He filled the spa bath with water and then turned it on. The attack on Kunal had rendered him unconscious. He died by drowning.
[48]
[8] The prosecution case against the accused was primarily circumstantial. An essential fact which the prosecution had to prove was that the appellant was present at the house during the period of time in which the deaths were caused.
[49]
[9] Pathology evidence estimated that the deaths had occurred one or two days before the bodies were found. A text message and phone calls between Neelma and the accused indicated that they had agreed to meet on the Sunday evening. The prosecution contended that this and other evidence established that the appellant was at the house at the relevant period of time and that his claim to have found the bodies on the following Tuesday during a visit to the house was a pretence. It also contended that the accused demonstrated a consciousness of guilt by falsely denying that he had been at the house on the Sunday evening and by lying in his claim that he had arrived at the house on the Tuesday at a time later than when he had in fact arrived there.
[50]
[10] In advancing the circumstantial case, the prosecution relied on statements made in the two records of interview and the walk-through recording to which we have referred. It also relied on the evidence of Dr Jones and Mr Kennedy with respect to foot impressions located on carpet on the lower level and internal stairs of the house. The impressions were caused by a bleach solution. The thrust of the evidence of both witnesses was that the accused could not be excluded as having been the maker of these impressions.
[51]
[11] It remains to note that the prosecution case also included evidence of a female friend of the accused, Ms Bowman, that was capable of constituting a confession on his part to having murdered the siblings. This evidence consisted of statements made by the accused to this witness in March 2008.
[52]
[12] The appellant's live grounds of appeal against conviction are:
[53]
"2. The learned Chief Justice erred in refusing a 'Judge Only Order';
[54]
The learned Justice P Lyons erred in admitting into evidence the record of interview which commenced on the 22nd April 2003;
The learned Justice P Lyons erred in admitting the 'walkthrough' of the 25th April 2003;
The learned Justice P Lyons erred in admitting the record of interview which commenced on the 31st March 2004;
The learned Justice P Lyons erred in admitting the evidence of Dr Sara Jones;
The learned Justice P Lyons erred in admitting the evidence of Robert Kennedy"
[55]
[13] It is convenient to consider these grounds in that order.
[56]
(1) The court may make a no jury order if it considers it is in the interests of justice to do so.
(2) However, if the prosecutor applies for the no jury order, the court may only make the no jury order if the accused person consents to it.
(3) If the accused person is not represented by a lawyer, the court must be satisfied that the accused person properly understands the nature of the application.
(4) Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply -
(a) the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury;
(b) there is a real possibility that acts that may constitute an offence under section 119B would be committed in relation to a member of a jury;
(c) there has been significant pre-trial publicity that may affect jury deliberations.
(5) Without limiting subsection (1), the court may refuse to make a no jury order if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness."
[57]
[15] Speaking of the nature of the discretion conferred by this provision, the learned Chief Justice said at paragraph 12 of his reasons for judgment:[1]
[58]
"I proceed on the basis that my discretion under s 615 to make a 'no jury order' is unfettered."
[59]
[16] His Honour continued in that paragraph to express his agreement with a proposition advanced in R v Fardon[2] that it falls to an applicant for an order under the section to demonstrate that the interests of justice warrant the Court exercising its discretion in favour of making a no jury order.
[60]
[17] Neither of his Honour's statements as to the nature of the discretion and the onus on the applicant are challenged on appeal. The appellant accepts also that given the nature of the discretion, the task of impugning an exercise of it is one that requires identification of some error made in exercising a discretion; that is to say, an error of the kind described in House v The King.[3]
[61]
[18] In advancing the application before his Honour, counsel for the appellant sought to establish two of the circumstances listed in s 615(4) as entitling the Court to make a no jury order. More importance was attached by the appellant to one of them, namely, that because of its complexity and length, a trial was likely to be unreasonably burdensome to a jury: para (a). The other concerned significant pre-trial publicity that the case had attracted over the years: para (c).
[62]
[19] His Honour expressed his views on each of these circumstances in the following paragraphs:[4]
[63]
"[13] Of course a trial consuming some months will be burdensome for jurors. Steps would be available to alleviate that burden to some extent, such as by not sitting one day a week and reducing sitting time. But a trial of that length will inevitably be burdensome. There is the possibility that with a lengthy commitment, the attention of jurors may waiver from time to time. That would be a matter for monitoring by the trial judge. One must proceed on the basis that the jurors will be true to their oaths or affirmations, and follow the trial judge's directions. See Gilbert v R (2000) 201 CLR 414, 420 and R v Glennon[1992] HCA 16; (1992) 173 CLR 592, 603. One likewise should proceed on the basis that the jury will determine the matter only by reference to the evidence, uninfluenced by pre-trial publicity.
[64]
[14] From what I have been told of the case, there should be no particular complexity which would fall beyond the capacity of the jurors, and it seems to me that the resolution of the circumstantial case, and the assessment of the credibility of the evidence of Ms Bowman, are ventures for which jurors are traditionally well-equipped. See Doney v R[1990] HCA 51; (1990) 171 CLR 207, 214."
[65]
[20] It is upon the following and final substantive paragraph in the reasons that the appellant principally bases this ground of appeal. The Chief Justice said:[5]
[66]
"[15] While acknowledging it would be burdensome, I do not consider it would be unreasonably burdensome to a jury to require trial by jury in this case, allowing for the significance of bringing the collective wisdom of 12 members of the community, rather than that of one judge, to the determination of a circumstantial trial involving the alleged murder of three siblings. The 'interests of justice' militate in favour of jury trial in this situation. Whether the verdict be guilty or not guilty, its being the verdict of a jury rather than a judge alone should command more confident acceptance by both the accused, the prosecution and the community, and that bears importantly on the interests of justice. As observed by EM Heenan J in Western Australia v Martinez[2006] WASC 25; (2006) 159 A Crim R 380, 392ff:
[67]
'...I am of the view that, having regard to the multiplicity of issues of fact underlining the prosecution's circumstantial case against the accused, there is likely to be great advantage in obtaining the collective judgment which only a jury can provide on behalf of the community as to whether or not that evidence satisfies such a tribunal beyond reasonable doubt that the charges have been proved. For that matter, it is equally important from the viewpoint of the community at large that any decision that the accused or some of them is or are not guilty of the charges laid, should be made by a tribunal representing the wider perspective of community standards than any single decision maker can reflect...no matter how great his or her experience may be.'"
[68]
[21] In oral submissions on appeal, senior counsel for the appellant emphasised that the citation of the passage from the judgment of EM Heenan J in Martinez[6] and the sentence which immediately preceded it, reveal that his Honour had commenced his consideration of the exercise of the discretion from a position that, as a general rule, "there is a preference for a trial by jury as against trial by judge alone". It was further submitted that in so doing, he erred and that this error infected the exercise of the discretion.[7]
[69]
[22] An analysis of this argument requires some examination of the paragraph. It will be recalled that his Honour had expressed his views on the two circumstances advanced by the appellant for exercise of the discretion in the immediately preceding paragraphs. The first sentence of paragraph [15] takes up again the circumstance of more importance to the appellant. There is a statement by his Honour of his conclusion with respect to it that a jury trial would not be unreasonably burdensome. The conclusion was evidently reached by his Honour by taking into account, as a consideration, that this was a circumstantial triple murder case for which it was significant that a jury trial would bring the collective wisdom of 12 members. That consideration was particular to the nature of the case which the appellant was facing and was not one of general application. It did not embody a preference for jury trials generally based upon community acceptance of jury verdicts or some other feature of them.
[70]
[23] Having stated that conclusion, his Honour went immediately to stating his ultimate conclusion with respect to the mode of trial which, in his view, better served the interests of justice "in this situation".[8] It is implicit in this conclusion that the Chief Justice had also concluded that the appellant had failed to discharge the onus of demonstrating that the interests of justice warranted the making of a no jury order. This was an ultimate conclusion which his Honour had reached after consideration of the two circumstances which the applicant had sought to establish.
[71]
[24] The ultimate conclusion, given full effect, was a rejection of the jurisdictional foundation for making a no jury order. Once reached, it precluded the making of a no jury order and determined the fate of the application. What follows the statement of the ultimate conclusion in paragraph [15] has the character of observations made by his Honour specific to the type of case that the appellant was facing and confirmatory of the appropriateness of the ultimate conclusion that he had already reached and expressed. These observations did not play an integral part in his Honour's reasoning towards the ultimate conclusion.
[72]
[25] In the result, the appellant's submission based upon paragraph [15] in the reasons fails at two levels. His Honour did not articulate a general rule of preference for trial by jury. Secondly, that part of the paragraph from which the appellant seeks to draw the articulation of such a rule, did not form an integral part of his reasoning towards the ultimate conclusion which predicated that the application must fail.
[73]
[26] In oral argument, senior counsel for the appellant also made submissions with respect to the circumstance of pre-trial publicity.[9] The submissions are to the effect that despite an absence of evidence from the appellant as to the nature and extent of it, the application before the learned Chief Justice proceeded upon the footing that there had been "substantial pre-trial prejudicial publicity". It is submitted that the last sentence in paragraph [13] of the reasons "ignores the fact that [s 615] accepts that there will be circumstances in which it is obviously insufficient for a direction to overcome prejudicial publicity".
[74]
[27] This sentence is preceded by references to passages in both Gilbert v The Queen[10] and R v Glennon.[11] The following from the joint judgment of Gleeson CJ and Gummow J in Gilbert[12] provides a context for the sentence:
[75]
"The system of criminal justice, as administered by appellate courts, requires the assumption, that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice."
[76]
[28] By the sentence in question, his Honour is to be understood as advocating an approach to be taken when considering the pre-trial publicity circumstance in s 615(4)(c). The approach is one that eschews any assumption that because there has been prejudicial pre-trial publicity, then the jury's deliberations will, or will not, be affected by it. It is one that, in an evaluation of the pre-trial publicity circumstance, requires the Court to have regard to the role and function of jury directions with respect to such publicity and to act upon an assumption that the jury will comply with such directions. Such an approach is unexceptionable. By contrast, and in answer to the appellant's submissions, his Honour is not to be understood as proposing that the pre-trial publicity circumstance be treated as mere redundancy on a footing that any amount of pre-trial publicity, no matter how extensive or prejudicial, can always be satisfactorily addressed by directions.
[77]
[29] It is apparent that his Honour concluded that, allowing for directions that could be expected to be given at trial with respect to it, the pre-trial publicity in this case was not such that the interests of justice called for a no jury order. The appellant has not submitted that error was committed by his Honour in reaching that particular conclusion. It remains to note that his Honour's expectations in this regard were not misplaced. The appellant has not challenged the directions that were subsequently given at trial with respect to pre-trial publicity.
[78]
[30] For these reasons, this ground cannot succeed.
[79]
[31] Grounds 3, 4 and 5 of the grounds of appeal allege that Justice Peter Lyons erred in refusing defence applications to exclude from evidence: the record of the interview which commenced on 22 April 2003; the record of the "walk through" interview of 25 April 2003; and the record of the interview which commenced on 31 March 2004.
[80]
[32] The appellant does not claim that the statements made by him in each interview were not voluntarily made. His principal contention in each case is that the exercise of his Honour's discretion miscarried as:
[81]
1. the prejudicial effect of admitting the evidence outweighed its probative value;
[82]
2. it was unfair to the accused to admit the evidence; and
[83]
3. considerations of public policy made it unacceptable to admit the evidence.
[84]
[33] It is convenient to take the three interviews in chronological order.
[85]
Ground 3 - record of interview of 22 April 2003
[86]
[34] In his outline of argument, the appellant introduced the further contention that his Honour erred in determining that, at the time of his interview, the appellant was simply a "person of interest" with respect to the murders. The following matters were said to falsify that finding:
[87]
the interview lasted, with breaks, for more than eight hours;
all that the police knew of the appellant's potential involvement in the murders was that he knew the deceased and had reported finding their bodies at the house;
the interview covered much more than the appellant's knowledge of the circumstances of the deaths;
towards the end of the interview, the appellant was asked about the whereabouts of all his property, whether his car had ever had seat covers and whether he had any injuries. He was requested to show his hands for inspection;
the appellant was questioned about his relationship with Neelma Singh and the rest of Singh family; and
the appellant had made it known to police that he was on parole for serious offences and police would have been aware of his significant criminal history.
[88]
[35] It was "open to infer from [the above] matters that the police suspected the appellant of having committed the offences".
[89]
[36] If that inference "is preferred", as it should be, s 249 of the Police Powers and Responsibilities Act 2000 (Qld)[13] (the PPRA) required the appellant to be informed that he had a right to speak to a friend, relative or lawyer and to ask for that person to be present during questioning. It also provided that questioning must be delayed for a reasonable time to allow the requested person to attend.
[90]
[37] It was not suggested by the appellant that he was not appropriately warned. It was accepted that he exercised his right to have his father present during the interview. Reliance was placed, however, on his father's departure from the location where the appellant was being interviewed so that his father could be interviewed by police. His father's departure was the direct result of police conduct and his absence "assumes greater relevance given the appellant's insistence on his presence prior to the interview beginning". As a result of his father's absence, there was no support person to safeguard the appellant's rights. The appellant's questioning continued for hours in the absence of his father.
[91]
[38] The questioning of the appellant's father was unnecessary as there was nothing known to police at the time which might have suggested that the appellant's father had any information of vital importance sufficient to warrant depriving the appellant of his support person of choice.
[92]
[39] The abrogation of the appellant's rights ought not be seen to have the Court's support and, consequently, the record of interview should not have been admitted into evidence either on the basis of the public policy ground or on the basis of the unfairness ground.
[93]
[40] It is convenient to consider first whether his Honour erred in finding that the appellant was, at the time of the interview, a "person of interest" rather than a suspect. His Honour relevantly said:[14]
[94]
"It is clear that by the end of March 2004, Detective Sergeant Zitny regarded the [appellant] as the primary suspect; whereas, on 22 April 2003, he regarded the [appellant] as a "person of interest". Given that the death of the three members of the Singh family had only that day come to the knowledge of the police, and that when he commenced to ask questions of the [appellant], Detective Sergeant Zitny had had very little opportunity to learn anything of the circumstances, it is unlikely that by that time he had formed a view that the [appellant] was likely to be responsible for their deaths."
[95]
[41] No submissions were made which cast doubt on these findings, which are supported by the evidence.
[96]
[42] It was only at 2.33 pm on 22 April 2003 that the appellant dialled the emergency telephone number and reported finding Neelma, Kunal and Sidhi Singh dead in the spa bath at their home. Detective Sergeant Zitny (DS Zitny) arrived at the murder scene at about 3.05 pm, where he met the appellant and his father. They had both been inside the house and it was obvious that the police would wish to glean as much relevant information as they could from them. When the police became aware of the appellant's degree of contact with the deceased and their family, it was also to be expected that they would wish to seek information about matters such as: the identity of family members who lived in the house; the identity of persons who had contact with the family and who may have had a motive for the killings, or who may have been able to shed light on the reason, or reasons, for the killings; and the relationships between the appellant and Neelma Singh, the appellant and other family members and between the family members themselves.
[97]
[43] The appellant agreed to accompany DS Zitny to the Petrie Police Station to "work out a step by step chronological order of events from what the [appellant] could tell them".[15] The conversation between DS Zitny and the appellant en route from the murder scene to Petrie Police Station was recorded. At the commencement of the recording, DS Zitny said that there were some formalities which he had to carry out. His Honour reported what then happened:[16]
[98]
"He stated that the [appellant] was not under arrest, and that he was free to leave at any time unless he was arrested, and that he was present voluntarily. He asked the [appellant] if he understood this, and the [appellant] agreed. Detective Sergeant Zitny then explained the [appellant's] right to silence, and that any statement he made might be used in evidence. He asked the [appellant] if he understood that, to which the [appellant] agreed.
[99]
Detective Sergeant Zitny also explained to the [appellant] his right to contact a relative or friend, or a lawyer, who could be present for questioning; and that questioning would be delayed to enable such a person to attend. The [appellant] was asked if he wished to speak to anyone at the moment, to which he replied in the negative. Detective Sergeant Zitny then reminded the [appellant] that he had previously stated that he wished his father to attend. The [appellant] explained that he was on parole. He also volunteered that Neelma's father (Mr Singh) 'hates my guts'."
[100]
"On arrival at the police station, Detective Sergeant Zitny invited the [appellant] to have a 'quick smoke' before they went inside. He was offered something to drink, and told that he could speak with a friend, relative or solicitor. The [appellant] stated that he would like his father present for the interview. He also said that he was unwell, and again that he was on medication which he had taken earlier in the afternoon. Before his father joined the group, the [appellant] was asked for details of his recent movements, which he provided."
[101]
[45] The formal record of interview commenced at about 4.57 pm. His Honour stated:[18]
[102]
"There were in total seven periods of interview (each on a separate tape), the last being for the purpose of obtaining the [appellant's] consent to the provision of a DNA sample. The other six periods involved questioning the [appellant] about his visit to the Singh house on 22 April 2003, and his relationship with Neelma, and with the Singh family generally. Each of these periods was of the order of 40 minutes in length, the longest being 45 minutes. There were breaks between the periods, in one case of only a few minutes, and otherwise of lengths varying between about 14 minutes, and a little less than an hour ...
[103]
At the outset, the [appellant] stated that he had been educated to year 12, and that he was a technical engineer in relation to computers. He was advised of his right to remain silent; his right to speak to a friend, relative or lawyer, and that time would be allowed for someone to attend; and that he was not under arrest but was present on a voluntary basis."
[104]
[46] During a break to change tapes at 5.43 pm, the appellant's consent was obtained for police to have access to his mobile phone in order to download the contents of the SIM card and the appellant's father left the room to be interviewed by another police officer. His Honour described as follows what happened after the recording break:[19]
[105]
"When the recording resumed at 6:07pm, the [appellant] was asked to confirm his consent to the downloading of the SIM card of his mobile phone, which he did. He was again advised of his right to remain silent, that his answers were being recorded and might later be used in evidence, and that he had the right to speak with a solicitor, friend or relative, and that time would be allowed to permit the arrival of such a person. The [appellant] declined to exercise those rights. Reference was then made to the fact that [the appellant's father] was no longer present, and the [appellant] was asked whether he was 'quite happy for that', to which he replied in the affirmative. The [appellant] then volunteered something which he remembered in the break, relating to difficulties with the alarm system at the Singh home ...
[106]
The next recording commenced at 7:10pm. The [appellant] was again reminded that he did not have to answer questions; that his answers were being recorded; and that the recording could be used as evidence at a later time. He was asked whether he was present on a voluntary basis; and was reminded that he had the right to have a friend, relative or solicitor present during the questioning. He was then asked if he was happy to be present by himself, to which he replied in the affirmative."
[107]
[47] The fourth recording commenced at 8.30 pm and the appellant confirmed that he was present on a voluntary basis. His Honour observed that the appellant was again advised of his rights in a manner similar to the warnings given to him at the beginning of the earlier recordings. Those statements were not repeated at the commencement of the fifth and sixth recordings. However, the appellant was reminded of the warnings previously given and was told on one of those occasions that the warnings continued to apply.[20]
[108]
[48] His Honour noted that the appellant continued to answer questions and "[a]t times he identified means by which his answers might be confirmed".[21] His Honour said:[22]
[109]
"From time to time he can be heard sniffling, suggesting either that he was unwell or upset or both. When asked about finding the bodies, he became upset. However, the [appellant] appeared generally able to answer questions without undue difficulty."
[110]
[49] His Honour observed that at the conclusion of the sixth interview:[23]
[111]
"The [appellant] was then asked whether he had taken part in the conversation of his own free will, to which he replied in the affirmative; whether there had been any threat, promise or inducement to take part in the conversation, to which he replied in the negative, and whether he had any complaints about the way he had been treated by the police, to which he again replied in the negative. Detective Naumann then commenced to ask some questions. At that point, the [appellant] said that he needed his medication. However he continued to answer the questions, in the course of which he also volunteered some additional information that he had forgotten in giving his earlier answers."
[112]
[50] The interviews concluded at 1.27 am. At about 1.47 am, the appellant was driven home by police "for the purpose of obtaining from him clothing which he had worn on visits to the Singh home".[24]
[113]
[51] DS Zitny was cross-examined by defence counsel at great, if not inordinate, length. He strongly refuted the suggestion that at the time of the first interview, the appellant was a "suspect" rather than a "person of interest". There are no findings against DS Zitny's credibility and his evidence in this regard is credible.
[114]
[52] There was nothing sinister about the police wanting to interview the appellant's father promptly and apart from the appellant. The police were investigating a triple murder of two young adults and a child. The appellant's father had been in the house after the killings and was thus an obvious person for the police to interview at the first available opportunity. Plainly, it was undesirable that he be present when the appellant was interviewed about what he had seen in the house and vice versa. There was no evidence that the appellant's father was prevented from returning to his son's interview. When the appellant's father left the interview, the appellant was reminded of his rights and declined to take advantage of them. No error has been shown in his Honour's finding that even "assuming s 249 of the PPRA did apply, the [appellant] was not denied the rights identified in that section by the continuation of the interview in the absence of his father".[25]
[115]
[53] The appellant, as the above narrative discloses, was reminded of his rights after each break in proceedings and did nothing to indicate that he was not happy to proceed in the absence of his father. He was in no way overborne and stated at the end of the interview that he had no complaints about the way he was treated. No basis for challenging his Honour's finding, including the finding that even if s 249 of the PPRA had applied there had been compliance with its requirements, has thus been shown.
[116]
[54] The provisions of the PPRA governing the rights of those being questioned as suspects for indictable offences applied to this interview. Section 268 of the PPRA provides that s 249 does not apply if a police officer reasonably suspects that compliance with that section is likely to result in any one or more of the following outcomes:
[117]
(a) an accomplice or accessory of the person being questioned taking steps to avoid apprehension;
(b) an accomplice or accessory being present during questioning;
(c) evidence being concealed, fabricated or destroyed; or
(d) a witness being intimidated.
[118]
[55] There is no evidence that would have supported a reasonable suspicion on the part of DS Zitny that any of these four outcomes was likely had the appellant's father been permitted to be present during the walkthrough and questioning of the appellant.
[119]
[56] The abrogation of the appellant's rights warranted the exercise of the discretion to exclude this interview on the basis of unfairness and on public policy grounds.
[120]
[57] During questioning on 22 April 2003, the appellant volunteered to show police officers what he had done upon entering the Singh home that day.[26] When DS Zitny telephoned the appellant on 25 April 2003 to arrange the "walk through", the appellant asked whether he should bring someone with him. He was told that it was a matter for him but that, because his father had been inside the house on 22 April, he probably could not have his father present. The appellant then asked whether his father could come and wait outside. DS Zitny agreed that he could.
[121]
[58] His Honour explained what then transpired at the Singh residence before the actual walk through:[27]
[122]
"A video recording was made of the events which occurred on 25 April 2003 at 20 Grass Tree Close, Bridgeman Downs. The nature of the exercise was explained to the [appellant], and he was asked whether he was happy to participate, to which he replied in the affirmative. His right to remain silent was explained, which he understood. He was also reminded of his right to speak to a friend, relative or solicitor; and that if he wished to have such a person present, the police were prepared to wait a reasonable time for that to happen. When asked whether he wished anybody to be present, the [appellant] replied in the negative. He was also asked to confirm that he was present on a voluntary basis."
[123]
[59] When the party entered an upstairs bathroom, which was not the one in which the bodies were found, the appellant "showed signs of being significantly distressed".[28] The prosecution did not seek to rely on anything in the recording after that point.
[124]
[60] His Honour doubted whether s 249 of the PPRA applied and held implicitly that, in any event, there had been compliance with the section and no impropriety on the part of the police. As was the case with the first interview, there was no evidence identified by the appellant which showed that, by the time of the walk through, the appellant was "in the company of a police officer for the purpose of being questioned as a suspect".[29] The appellant did not identify any fact or circumstances which tended to show that if s 249 of the PPRA applied its requirements had not been satisfied.
[125]
[61] DS Zitny's concern was that two potential witnesses not give their statements in the presence of each other. There was no unfairness to the appellant and no public policy considerations supporting the exclusion of the evidence. The concern was justified. Again the appellant's complaints lack justification.
[126]
Ground 5 - record of interview of 31 March and 1 April 2004
[127]
[62] The substance of the appellant's argument was that his Honour's discretion miscarried in that he should have ruled that the record of interview be excluded. That was said to be because he placed too little weight on the length of the interview, the length of time that the appellant was in custody prior to the commencement of the interview and the actions of the police when the appellant was taken into voluntary custody and also whilst he was in custody. In spite of the appellant being told that he was voluntarily in police custody, DS Zitny controlled when the appellant was permitted to make telephone calls to his family by confiscating his mobile phone and by telling him that he would only be permitted to make such calls when it was convenient to DS Zitny.
[128]
[63] The following matters were also relied on by the appellant. The interview began at about 1.30 pm and lasted for approximately 15 and a half hours with breaks. By the time the interview commenced, the appellant had already been in police custody for more than two and a half hours. There was no challenge to his Honour's findings that the statements made by DS Zitny at the commencement of the formal interviews substantially complied with the formula set out in s 34 of the Police Responsibilities Code 2000 (the PR Code) and with the PPRA.[30]
[129]
[64] On the morning of 31 March 2004, DS Zitny and other police officers approached the appellant at an office of the Department of Corrective Services. DS Zitny asked the appellant to accompany him to the police station for the purpose of further questioning. The appellant indicated his willingness to come after being told that he did not have to come if he did not wish to do so. The appellant was searched and handcuffed. He was shown a search warrant for his motor vehicle which was then seized. His right to silence was explained. Asked if he understood what he was being told, he replied in the affirmative. He was told of his right to telephone or speak to a friend, relative or lawyer, whom he could ask to be present during questioning and that questioning would be delayed for a reasonable time to allow such a person to attend.
[130]
[65] The appellant was placed in a police car. As it moved off, DS Zitny told the appellant that he was not under arrest and that the handcuffs which had been placed on him were "for safety reasons". The following extract from the reasons deals with events upon and after arrival at the police station:[31]
[131]
"[88] The [appellant] was then taken into the police station. At some point he said, 'When do I get my phone call Detective Zitny?' Detective Sergeant Zitny responded that the [appellant] no doubt had a lot of questions for him. The [appellant] said, 'I'd like my phone call first please, please'. Detective Sergeant Zitny replied, 'You'll have an opportunity to do that when I'm prepared to let you do it.' The [appellant] then said he would not answer questions until he was able to make a phone call; and that he would like his family to know what was happening.
[132]
[89] Shortly after, Detective Sergeant Zitny said that he had a lot of questions for the [appellant]; and that the [appellant] would be provided with 'an opportunity to listen to what the evidence suggests'.
[133]
[90] There was then further discussion in which the [appellant] renewed his request for a telephone call to a member of his family. He was then asked if there were other reasons why he would not be able to answer questions, and he said that one was that he did not have a solicitor present and another was that he did not trust the police, making reference to the presence of media at his house that morning. Detective Sergeant Zitny said that he would arrange for a phone call to be made 'at my convenience', but not immediately.
[134]
[91] After changing the recording tape, Detective Sergeant Zitny identified the serious nature of the matter being investigated, and stated that he would reiterate warnings previously given to the [appellant], asking him whether he understood, to which the [appellant] replied, 'No comment'. There was then an interchange in relation to the [appellant's] response, in the course of which the [appellant] expressed a wish to have a solicitor present, and to make a telephone call. A little later, the handcuffs were taken off. Shortly after that, Detective Sergeant Zitny stated that he had made arrangements to have the telephone call organised, confirming that the [appellant] wished to ring his family and identifying the appropriate telephone number. A little later, the [appellant] stated he wished to have one of the members of his family present.
[135]
[92] Detective Sergeant Zitny stated that he was not going to ask questions prior to the telephone call. He then began to outline the areas of questioning, at which point the [appellant] said that he had been advised by his solicitor not to go over the matters about which he had been previously questioned, and that if he was arrested not to say anything without the solicitor being present.
[136]
[93] Detective Naumann stated that he had asked another officer to telephone the family, to which the [appellant] responded, 'Yeah, yeah, that's who I want, the family'. He was asked whether he wanted a solicitor present at that stage to which he responded in the negative. A little later the [appellant] stated, 'You should have just rang me up and I I would have come in'.
[137]
[94] Some time passed, apparently while attempts were made to arrange for the attendance of a member of the [appellant's] family. The [appellant] indicated that it did not matter which family member attended. In this period, the [appellant] stated that the police had been listening in to and recording his telephone conversations. He also spoke a little disparagingly of a previous search of his car. He stated that his back was 'playing up'. He also stated that he was cold (he was lightly dressed).
[138]
[95] Conversation then continued for some time. There was a degree of sharpness in what was said, both by Detective Sergeant Zitny, and by the [appellant]. At one point, apparently when Detective Sergeant Zitny was not in the room, the [appellant] said that, by reference to what he had been told by his solicitor, he would answer new questions, but not questions he had already answered. He also said, when told he had the right to choose which questions to answer, 'Well we'll see what the Solicitor says too'. He was asked whether he would talk to the police when his father came, 'I've got to see because I got to see what's happening the Solicitor (sic)'. He also said, 'we got someone picked out for this occasion'. The 'someone' was an unnamed solicitor; and 'this occasion' was 'the day that youse come and arrest me'.
[139]
[96] Detective Naumann commented that there was 'a bit of toing and froing match between you and (Detective Sergeant Zitny)', to which the [appellant] replied, 'No, Joe and I we just chat like that'.
[140]
[97] A little later, when asked about what he would tell the police in the interview, the [appellant] said, 'I'll just do what my solicitor says'. Later the [appellant] again referred to his back condition, to being cold, and on one occasion to having a headache.
[141]
[98] Eventually, [the appellant's father] arrived at the police station. The [appellant] was then given the opportunity to speak with him.
[142]
[99] The formal record of interview commenced subsequently, apparently shortly after 1:30pm on 31 March 2004. In addition to the [appellant], Detective Sergeant Zitny and Detective Naumann, the [appellant's] father and some other police officers were present."
[143]
[66] During the lengthy questioning that followed, the appellant's father's mobile telephone rang and he left the room to answer the call. The appellant said he was prepared to continue with the interview in his father's absence and the interview proceeded.[32] At the conclusion of the interview, the appellant confirmed:[33]
[144]
"... that he had not been subjected to a threat or promise, or offered an inducement; that he had been told on a number of occasions that he was not obliged to answer questions; that he was offered the opportunity to speak with somebody, and that his father had been present for the interview; and that he had no complaints about the conduct of the interview."
[145]
[67] In discussing the appellant's arguments at first instance in respect of this interview, his Honour said:[34]
[146]
"The matter of greatest concern is the total length of the interview, particularly when seen against the background of the additional time for which the [appellant] was in the company of police officers, prior to the commencement of the formal interview."
[147]
[68] His Honour was plainly alert to the circumstances in which the appellant was approached by police and taken to the police station for his interview. He set out the facts in that regard at some length in his reasons. In paragraph [135] of his reasons, the judge concluded that there was no reason "to think that Detective Sergeant Zitny's earlier conduct played any role in the [appellant's] participation in the formal interview". His Honour noted that the appellant and his father "had the opportunity to discuss what would be in the best interests of the [appellant], during the interview".[35] He remarked that they conversed a number of times in Italian and, on one occasion, spoke in the absence of police officers.[36]
[148]
[69] His Honour's conclusion that the questioning of the appellant during the interview was not cross-examination of the kind which sometimes attracts the exercise of a discretion not to admit a record of interview into evidence was unchallenged as was the finding that, on a number of occasions, the appellant was reminded that he did not have to comment or answer questions. His Honour noted that the appellant's refusal to answer a question on the basis that he had already given answers about that topic was accepted.
[149]
[70] In dealing with the possibility of unfairness arising from the length of the interview, after referring to the appellant having indicated at times that he was cold, suffering from a headache and had back pain, his Honour said:[37]
[150]
"It might, however, be observed that manifestations of these matters appeared less obvious as the interview progressed. In addition, something to drink was usually available to him, and he was provided with food in the course of the interview. There were several toilet breaks. The [appellant] did not at any time indicate that he found it difficult to continue with the interview; rather, on occasion, he expressed a willingness to proceed. Even towards the end of the interview, the [appellant] was able to make a decision not to comment on matters put to him; or to co-operate when he thought it appropriate. He regularly gave answers reflecting a degree of uncertainty about his recollection, though at other times he gave quite definite answers. The ability to differentiate his answers in this fashion rather suggests that the length of the interview had no unduly adverse effect on his ability to answer questions."
[151]
[71] His Honour listed the seriousness of the crime and that the interview took place after a very extensive investigation resulting in the police considering it appropriate to question the appellant about a significant number of matters as matters favouring the admission of the evidence of the interview. He noted that it was not suggested that it was inappropriate for the police to do so. He observed that, in the circumstances, the questioning was inevitably likely to be lengthy.
[152]
[72] As with the other two interviews, the grounds relied on by the appellant have not been made out. There was compliance with s 249 of the PPRA. No rights of the appellant were abrogated. There was no unfairness to the appellant. The police behaved with propriety throughout.
[153]
[73] It was not shown in respect of any of the interviews that his Honour acted "upon a wrong principle", allowed "extraneous or irrelevant matters to ... affect him", mistook the facts or did not take into account some material consideration or otherwise erred in fact or in law.[38] Consequently, it has not been shown that there was an error in the exercise of the discretion in respect of this or the other two records of interview.
[154]
[74] Grounds 6 and 7 of the notice of appeal allege that Justice Peter Lyons erred in admitting the evidence of Dr Sara Jones and the evidence of Mr Robert Kennedy.
[155]
[75] Examination of the crime scene by scientific officers located a foot impression on carpet at the bottom of the stairs and a number of partial foot impressions on the internal stairs. The impressions were consistent with feet that carried bleach from a tiled area that had been mopped. The first impression (impression 1) was complete and had the greatest clarity and detail of the impressions that were found. The other impressions going up the stairs were of decreasing quality and had decreasing concentrations of bleach. The evidence linked the impressions to the killer, who had mopped the tiled area with bleach.
[156]
[76] The impressions were on carpet, and therefore lacked ridge detail to enable a "fingerprint type" analysis. However, class characteristics including size, shape and position were able to be observed and compared with samples from the appellant and other persons of interest.
[157]
[77] The evidence of Dr Jones and Mr Kennedy related to the comparison of the foot impressions recovered from the crime scene with foot impressions taken from the appellant in bare feet, with three types of sock and by the use of ink and bleach on his feet on different occasions.
[158]
[78] Dr Jones is a highly qualified podiatrist, holding a PhD in podiatry. She has extensive experience in assessing feet and in research in pressure patterns. Since 1992 she has had experience in forensic podiatry, which involves the examination of questioned footprints to ascertain features and characteristics.
[159]
[79] The process of examination involves looking for class characteristics, including measures at different areas of the foot, the shape of the arch and the positioning and arrangement of the toes, and also for individual characteristics, such as warts and corns. The process of examining an impression involves a detailed examination and recording of information and measurements using specialised tools. The measurements are checked and re-measured. The process is then repeated with a known sample, and includes measurements over the length from the heel to the tip of each toe, the width of the ball of the foot and the width of the heel. As the foot is a dynamic structure, there is a variation between footsteps from the same person.
[160]
[80] Both in a report provided prior to the pre-trial application, and in her evidence at trial, Dr Jones explained the process she undertook to examine the carpet and full-size photographs of the impressions at the crime scene, and her examination of the appellant's feet and sample impressions. Her findings were tabulated in relation to the crime scene impressions and the sample impressions from the appellant.
[161]
[81] Dr Jones also explained the process of comparison, which had as its objective the elimination of the feet of the appellant as having been the source of the impressions at the crime scene. This process of elimination looked for differences. From her comparison with the sample impressions taken from the appellant, she was unable to exclude the appellant as having left the crime scene impressions.
[162]
[82] Dr Jones did not purport to provide a positive identification of the appellant since, as she explained, there were no unique or identifying characteristics.
[163]
[83] At the trial Dr Jones agreed that there had been no studies undertaken of which she was aware to ascertain the frequency with which various characteristics, or combination of characteristics, occurred within the Australian community.
[164]
[84] Mr Kennedy is a former member of the Royal Canadian Mounted Police, who retired in 2006. He has extensive experience in, and has undertaken research in connection with, forensic identification, including barefoot and socked foot impressions. As with Dr Jones, his evidence, both in his report and in his evidence at trial, related to foot impressions and the methodology adopted of looking at the crime scene impressions and the process of attempting to exclude the maker of a given sample impression. He explained the features that are considered, the method of taking and measuring impressions and the process of comparison. The characteristics that are considered and measured include the overall size, the shape of the ball of the foot, the distance between the ridge of the ball of the foot and each toe, the placement of each toe, the shape of the arch, the size and shape of the toes and the relative length of each toe.
[165]
[85] Mr Kennedy considered crime scene impressions 1, 3, 5, 7 and 9 (left foot impressions) and 2, 4, 6 and 8 (right foot impressions) and concluded one person made all of the left foot impressions and one person made all the right foot impressions. Mr Kennedy explained that, although it is difficult to tell whether an impression is a bare foot impression or a socked foot impression, because it is the weight-bearing areas of the foot which are in contact with the surface, he concluded that the crime scene impressions were created by socked feet because the bleach stayed on the foot over a considerable distance on the carpet.
[166]
[86] Mr Kennedy explained the characteristics he observed in the crime scene impressions and also characteristics of the sample impressions taken from the appellant. As a result of the comparisons that he undertook, Mr Kennedy formed the opinion that he supported the hypothesis that impression 1 could have been made by the appellant or someone else with features matching in the same way. As to the right foot crime scene impressions, he described the characteristics he observed in impression 2 and could not eliminate the appellant from having made those impressions. By comparing tracings he could find no inconsistencies that would eliminate the appellant. He supported the hypothesis that impression 2 could have been made by the appellant or someone else who had the same placement and shape of the toes.
[167]
[87] Mr Kennedy said that he was not purporting to identify the appellant as the source of the crime scene impressions. Identification depends upon individual characteristics. His evidence related instead to the fact that by comparing the size and other characteristics about which he gave evidence he could not exclude the appellant.
[168]
[88] Mr Kennedy accepted that he did not know how many other people may have those same characteristics. His evidence was that there was no study to determine how common particular class characteristics or groups of class characteristics are.
[169]
[89] At the pre-trial hearing before Justice Peter Lyons, the prosecution indicated that it did not intend to ask Dr Jones or Mr Kennedy to express the view that the footprints found at the crime scene were made by the appellant, nor was it intended to ask either witness to express a view as to the probability of the appellant having made those footprints.
[170]
[90] The pre-trial application had three bases: two about the admissibility of the evidence of Dr Jones and of Mr Kennedy, and one which sought the exclusion of the evidence on discretionary grounds. The first ground upon which the admissibility of the evidence was challenged was that neither witness had expertise in a recognised field or area of expertise. The second was that the evidence was not based on a reliable body of knowledge or experience. The discretionary basis for the exclusion of the evidence was submitted to be that it would be unfair to admit it because it was of slight probative value, but highly prejudicial.
[171]
[91] In resisting the application the prosecution submitted that the experts' extensive experience qualified them to give the evidence and that the evidence came within a field capable of being regarded as reliable and which could be the subject of expert evidence. The evidence was of probative value in proving that the foot impressions were consistent with the sample footprints of the appellant, and thus formed part of the prosecution's circumstantial case. The prosecution submitted that any potential prejudice could be adequately addressed by directions to the jury.
[172]
[92] His Honour accepted the prosecution submissions about the expertise of Dr Jones and Mr Kennedy in the comparison of foot impressions and that the subject matter of their opinion about the comparison of foot impressions formed part of a body of knowledge or experience which was sufficiently organised or recognised to be accepted as a reliable body of knowledge or expertise. His Honour also accepted that it was unlikely inexperienced persons were capable of forming a correct judgment upon the comparison without the assistance of witnesses possessing such special knowledge or experience in the area.
[173]
[93] On the basis of the evidence before him, which included evidence about the process of measurement and visual comparison, his Honour concluded that the steps taken by the witnesses to reach their conclusions were likely to be exposed to the jury and that the jury would be in a position to assess for itself the validity of the conclusions reached.
[174]
[94] As to exclusion on discretionary grounds, the evidence of Dr Jones and Mr Kennedy, if viewed in isolation, was not probative of the appellant's guilt but, as the prosecution submitted, its probative value was not to be assessed in isolation from the rest of the case, and without consideration of its intended use.[39] His Honour was not satisfied that the prejudicial effect of the admission of the evidence would be substantial. One factor was the nature of the evidence, which simply dealt with the question of whether the foot impressions could, or could not, have been made by the appellant. That matter was said to be capable of being relatively easily explored and assessed by the members of the jury. It involved an examination of the impressions and a consideration of the physical features identified by the experts in reaching their conclusion. It did not involve impressive technical expressions which might result in the jury giving the evidence greater weight than it deserved. Directions were likely to identify the limited nature and the utility of the evidence.
[175]
[95] The evidence was described as being analogous to the identification evidence considered in Festa v The Queen,[40] which was described by McHugh J as "weak",[41] and some of which was regarded by Gleeson CJ as, standing alone, not permitting a conclusion of guilt.[42] But that did not mandate a conclusion that the evidence was to be excluded. The potential prejudice in receiving such evidence from experts was not such as to warrant the exclusion of the evidence.
[176]
[96] The appellant does not renew the submissions made before his Honour about the expertise of the expert witnesses in the recognised field of the comparison of foot impressions, or that such a process of comparison is not based on a reliable body of knowledge falling within their expertise. His argument on appeal that the evidence of Dr Jones and Mr Kennedy is inadmissible is founded on the contention that "there are no criteria against which the value of the opinions provided can be judged", and, in particular, that "there are no criteria by which to judge whether the features found are common or uncommon, whether the features are in any sense related and their frequency of appearance in combination".
[177]
[97] On the discretionary exclusion of the evidence, the appellant submits that the evidence is of low probative value but its prejudicial effect was significant because:
[178]
(a) the jury was likely to be impressed by the qualifications and experience of the experts and place more weight upon their evidence than it deserved: the so-called "white coat effect"; and
(b) the way in which the expert opinion was framed, namely as an inability to exclude the appellant, was said to be likely to leave the jury with the impression that it placed the appellant at the crime scene at the relevant time.
[179]
[98] Some of the appellant's oral submissions were cast in terms of admissibility, and were to the effect that the expert evidence lacked any evidentiary value. The thrust of the oral submissions, however, was that the absence of evidence about the number and range of people who had similar characteristics deprived the jury of any basis to assess the significance of the finding of consistency, and deprived the jury of the ability to assess its evidentiary value. This meant that the evidence might be given undue weight and directions did not ameliorate this prejudicial effect.
[180]
[99] The respondent notes that the appellant did not challenge at trial the conclusions of the experts that a comparison between the impressions found at the scene and the appellant's sample could not exclude the appellant as having made the impressions. In other words, the appellant could have made the impressions. The evidence was proffered for the limited purpose of proving this fact, being a fact which formed a part of the prosecution's circumstantial case.
[181]
[100] The admissibility of the expert evidence for the limited purpose for which it was advanced did not depend upon evidence of frequency. Authorities, including the English Court of Appeal decision in R v T (Footwear Mark Evidence),[43] support the proposition that an expert can give evidence based on his or her experience about whether a comparison of characteristics could or could not exclude the person who provided a sample.
[182]
[101] The experts explained the process of examining the impressions and the factual foundation of their opinions. The reasoning used by the experts was fully explained. The jury was thereby assisted in comparing the relevant impressions and in assessing the experts' opinions.
[183]
[102] As to discretionary exclusion, the respondent submits:
[184]
(a) the alternative was simply to leave the jury to undertake the process of comparison, unassisted by experts who had substantial experience in the field of comparison of foot impressions;
(b) the expert evidence was not enhanced with impressive technical expressions and could be easily understood;
(c) the expert evidence did not identify the appellant as the author of any foot impressions, and only meant that the possibility that the appellant had made the impressions could not be excluded;
(d) the prosecution and the expert evidence did not suggest any other purpose, and the limits of the evidence were explored in cross-examination;
(e) as anticipated, the trial judge made clear to the jury the limited nature of the evidence, namely that it did not identify the appellant as the author of any foot impressions and only meant that the possibility that he made those impressions could not be excluded; and
(f) in the circumstances, it was open to exercise the discretion against excluding the evidence.
[185]
[103] The admissibility of the expert evidence depends upon the matter it was intended to prove. The evidence did not purport to identify the appellant as the killer, or even that it was probable that he had left the footprints. Its purpose was to prove that the appellant (and others with the same characteristics) could not be excluded as having made the footprints. Expressed differently, it supported the conclusion that the appellant "could have" made the footprints.
[186]
[104] The basis for that conclusion was explained in the evidence of the expert witnesses. The "class characteristics", the process of identifying and measuring them and the process of comparison were explained in great detail. The opinion that the appellant could not be excluded was based on the process that was explained and the experience of the experts in undertaking such a comparison. The foundation of the expert opinion was exposed to the jury. The evidence complied with what Heydon JA described in Makita (Australia) Pty Ltd v Sprowles[44] as the primary duty of experts in giving opinion evidence: "to furnish the trier of fact with criteria enabling evaluation of the validity of the expert's conclusions".
[187]
[105] Because the experts expressed no conclusion about the probability that the foot impressions were made by the appellant, it was not necessary for them to address whether the features found were common or uncommon, and the criteria by which such a likelihood might be assessed.
[188]
[106] Unlike R v T,[45] this was not a case in which the opinion given by the expert was based upon an assessment of the frequency of the appearance of certain characteristics. R v T was a case about the use of likelihood ratios by experts in providing evaluative evidence in relation to footwear marks in England and Wales. The issue was whether a footwear mark examiner who had concluded that a mark could have been made by the defendant's shoe could express an evaluative opinion of the probabilities it was made, and, if so, the basis upon which that opinion could be formed and expressed.[46] In addressing that issue, the Court of Appeal held that "in some cases an expert examiner of footwear marks can indeed go no further than to express the opinion than the shoe could or could not have made the mark".[47] In other cases it would not be right to confine an examiner (where there are solely class characteristics) to opine on whether the mark could or could not have been made by a particular defendant. Factors might exist which permit a more definitive evaluative opinion.[48] The issue in R v T was whether, in the present state of knowledge about footwear impressions, it was permissible to use mathematical formulae and likelihood ratios based on statistics to arrive at an evaluative opinion in footwear mark cases. In concluding that it was not, the Court of Appeal stated that the fact there is no reliable statistical basis does not mean a court cannot admit an evaluative opinion.[49] Also, the absence of a statistical database was something about which evidence would be given, and any evidence given by the expert about the significance of the matter would be evaluated by the jury. R v T held that an evaluative opinion (beyond saying that a shoe could or could not have made the mark) about the likelihood of a shoe having made the mark can be admitted in the absence of a reliable statistical basis where there is a sufficiently reliable basis for the admission of such evidence.[50]
[189]
[107] This appeal does not concern a similar issue since the expert witnesses in this case gave evidence confined to whether the foot impressions could or could not have been made by the appellant. R v T supports the proposition that they can. Also, as his Honour observed, when one has regard to expert evidence well-recognised as admissible, the admissibility of the expert evidence often does not require satisfaction of matters such as the existence of a suitable database for comparison or the use of mathematical likelihood ratios.
[190]
[108] In this case, the expression of expert opinion to the effect that the appellant could have made the foot impressions, or, more precisely, that he and an unknown number of other persons with the same characteristics could not be excluded as being the maker of the footprints, did not depend upon a statistical database, and the absence of such a database was explained to the jury.
[191]
[109] This is not a case in which the experts expressed a definitive evaluative opinion about the probability that the appellant made the foot impressions, expressed in terms of a likelihood ratio or in some other form such as "highly likely", or "highly unlikely". If they had done so, then by analogy with R v T, each expert would need to have made clear the basis of that view, for example, that it was based on experience and the fact that the characteristics were of an unusual size or pattern. In accordance with Makita,[51] the criteria by which such an opinion about likelihood was arrived at would need to be explained to the jury.
[192]
[110] The experts furnished the jury with criteria enabling evaluation of their conclusions that the hypothesis that the appellant made the foot impressions could not be excluded. The evidence satisfied the requirements for admissibility.
[193]
[111] Incidentally, if the appellant was correct and expert evidence of the kind given in this case was not admissible, it would seem to follow that an accused affected by evidence of similarities could not adduce evidence from an expert that in addition to supposed similarities there were dissimilarities which meant the accused could not be the person who made the relevant impressions. If reliable expert opinion of characteristics which mean that an accused cannot be excluded is inadmissible, then reliable expert opinion, adduced by the defence, that certain characteristics exclude the accused also would be inadmissible on the same ground. Such a conclusion should not be embraced since it would significantly diminish the power of a party challenging prosecution evidence of similarities to explore and test it.[52]
[194]
[112] The appellant's contention that the expert evidence had limited weight because the experts could not say what proportion of the general public had similar characteristics is a point that relates to the discretionary exclusion of admissible evidence, not the admissibility of such evidence.
[195]
[113] The discretion to exclude which the appellant seeks to invoke is concerned to ensure that admissible evidence is used fairly. Exclusion on the ground of unfairness should occur where the prejudicial effect of its admission would be substantial and outweigh its probative value. Prejudicial effect means the risk of improper use.[53] Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted.[54] Unfair prejudice exists where there is a real risk that the evidence will be misused by the jury in some unfair way.[55] The concept of misuse directs attention to the way in which evidence is used, and directions that are apt to reduce the risk that evidence is not improperly used.
[196]
[114] The appellant relied on R v LM[56] in support of the submission that the jury was likely to place great weight on the experts' opinions. But LM was a case in which psychiatric opinion was given about the likely behaviour of a person who suffered "Munchausen's Syndrome by Proxy". It was not within the expertise of a psychiatrist to comment about such matters. The syndrome was only a description solely determined by behaviour, not a disorder or mental illness.[57] This Court concluded that a jury was likely to place great weight on the existence of a term to describe the behaviour which the prosecution alleged the appellant exhibited, instead of concentrating on the real issues. The use by a psychiatrist of "impressive medical expressions" in that case had the potential to be extremely prejudicial and the Court of Appeal ruled that the evidence, if it had been admissible, should have been excluded.
[197]
[115] This case is different. The experts did not use technical language or jargon that might unfairly impress a jury of people without scientific training and result in the jury giving the evidence greater weight than it deserved. As his Honour observed in determining the issue of discretionary exclusion, the nature of the evidence was such that it simply dealt with the question of foot impressions, and was capable of being explored and assessed by the jury.
[198]
[116] Courts have recognised that in the case of certain forensic evidence:[58]
[199]
"The jury, being people without scientific training, may often be impressed by an expert's qualifications, appointments and experience and the confident manner in which he expresses his opinions. And yet it ought not be left to such matters alone to provide a foundation for the jury making an assessment of the probative value of forensic evidence, particularly where there are conflicts in expert testimony, or where it is acknowledged that other experts of more or less equal distinction are unlikely to agree."
[200]
As a consequence, if possible, the jury should be acquainted in ordinary language with an expert's opinion so as to put the jury in a position to make an evaluation of the opinion.
[201]
[117] The appellant also cites Morgan v The Queen[59] in which identification was the central issue. The prosecution led evidence from a biological anthropologist and anatomist who purported to conduct an anatomical comparison of CCTV images of the offender and images of the appellant. The evidence included technical terms. The opinion that there was "a high level of anatomical similarity" between the offender and the suspect was not ever satisfactorily explained.[60] The comparison of the images was a task which the jury would have been able to undertake for themselves. The expert evidence "tended to cloak evidence of similarity in a mantle of expertise" which it did not deserve. This was described as the "white coat effect".[61]
[202]
[118] There is no similar problem in this case. The experts did not purport to express opinions in technical or any other terms about the probability that the appellant had made the foot impressions. The foundations for the expert opinions they gave were explained, and they were not overly technical. The methodology they used to make measurements and undertake comparisons were understandable to persons without scientific training.
[203]
[119] The fact that the jury might be impressed by the evidence that the experts gave does not create what has been described as the "white coat effect" by cloaking evidence in a mantle of expertise which it does not deserve. The experts did not give evidence in a form or in language that encouraged it to be used for a purpose other than that for which it was given.
[204]
[120] The appellant's criticism of the expert evidence is not that it improperly purported to assign a probability, either in percentage terms or in some other form of words, to the likelihood that the foot impressions were made by the appellant, or did so without explaining its foundation to the jury. The criticism is that the experts did not give any opinion about the significance of the fact (which was uncontested) that the appellant could not be excluded as being the person who made the impressions. The experts did not venture an opinion about whether the shared characteristics were commonplace or uncommon. But the absence of such evidence did not make the evidence that was given unfairly prejudicial.
[205]
[121] The evidence was adduced to prove the fact that the appellant could have left the impressions or, expressed differently, that the possibility that he made those impressions could not be excluded. The risk that the evidence might be misused in some unfair way as proving something else, for example as positive evidence of identification, was addressed and was not substantial. The experts indicated that the process of comparison had as its objective elimination, by looking for differences between the crime scene impression and the sample impression so as to exclude the maker of the sample. The evidence was not proffered as positive evidence of identification of the appellant. The risk of possible misuse and unfair prejudice also was to be addressed by directions to the jury. His Honour expected the jury to be directed about the limited nature and the utility of the evidence and his expectation was not misplaced. The learned trial judge made clear to the jury that the evidence did not identify the appellant as the author of any foot impressions and only meant that the possibility that the appellant made those impressions could not be excluded. No criticism is made by the appellant of the directions of the trial judge in that or in any other regard.
[206]
[122] Without proper directions, and notwithstanding the opportunity to cross-examine the experts about the significance (or lack thereof) of their inability to exclude the appellant and many others, a risk existed that evidence that the appellant could not be excluded as being the maker of the foot impressions might be given more weight than it deserved, and even misunderstood as suggesting that he was at the crime scene at the relevant time. The danger of misuse of the expert evidence was addressed by the trial judge's directions, as his Honour anticipated it would be.
[207]
[123] The potential prejudice and probative value of the expert evidence were addressed by his Honour in ruling on the pre-trial application. As matters transpired, the potential for the expert evidence to unfairly prejudice the appellant was reduced by:
[208]
(a) the fact that it was not overly technical;
(b) reliance upon it for a limited purpose and the fact the experts disclaimed any suggestion that it was evidence that positively identified the appellant as being present at the scene of the crime;
(c) the limitations of the evidence being explored in the course of the evidence, including the absence of any evidence about how common or uncommon such characteristics were; and
(d) the limitations of the evidence and the use to which it might be put being the subject of directions by the trial judge.
[209]
[124] As to the pre-trial exercise of the discretion to exclude, the appellant has not shown that his Honour erred in refusing to exclude the evidence. Correct principles were applied. The discretion was correctly exercised by having regard to:
[210]
(a) the nature of the evidence itself, which was capable of being explained to, and assessed by, the jury;
(b) the fact that the evidence did not use impressive technical expressions;
(c) the fact that the steps taken by the experts would be exposed so as to allow the jury to assess for itself the validity of the conclusions reached; and
(d) the assumption that directions would identify the limited nature and utility of the evidence.
[211]
[125] The refusal of the application to exercise the discretion to exclude was open because the potentially prejudicial effect of the evidence was not substantial and could be adequately addressed by directions. The matters pointed to by the appellant, including the fact that the evidence came from experts whose evidence might impress the jury with their experience and expertise, did not warrant the exclusion of the evidence. Given the stated and limited use to which the evidence was to be put and trial directions about its limited nature and the purpose for which it was given, the appellant's submission that the evidence was likely to leave the jury with the impression that the expert evidence placed the appellant at the crime scene at the relevant time should not be accepted.
[212]
[126] To submit that the evidence was of limited or low probative value might be correct if the evidence was viewed in isolation in assessing whether it was particularly probative of the appellant's guilt. But this would be to disregard the intended use of the evidence as part of the prosecution case. As his Honour observed, such evidence might be regarded as analogous to the "weak" identification evidence considered in Festa which, standing alone, did not permit a conclusion of guilt. However, it was legitimate for the prosecution to rely upon the expert evidence for the limited purpose which was previewed. It was highly probative of the fact that it sought to prove, namely that the appellant could not be excluded as having caused the foot impressions.
[213]
[127] In considering the exercise of the discretion to exclude, it is appropriate to recall the reasons why the expert evidence was admissible. One reason it was admissible was that a person "without instruction or experience in the area of knowledge or human experience" would not be able to form "a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area".[62] If the expert evidence was not admitted, but raw material (in the form of foot impressions and other material upon which the expert opinions were based) was admitted, then the jury would have been left to make what it could of class characteristics and whether they excluded the appellant. Without expert assistance, the jury would be left to make its own assessment of the apparent similarities between the foot impressions. Without the skill and experience of an expert in the area of comparison of foot impressions, the jury might have reached a conclusion that was erroneous. The jury would see the raw material but have no assistance, when assistance was required, in evaluating it.
[214]
[128] If neither expert opinion evidence nor the "raw material" upon which it was based was given to the jury, then it would be deprived of relevant evidence, albeit evidence admitted for a limited purpose, namely to prove that the appellant could not be excluded as the maker of the foot impressions.
[215]
[129] The discretionary exclusion of the expert evidence would have deprived the jury of assistance in evaluating evidence of foot impressions or deprived the jury of reliable evidence. Its exclusion was not justified.
[216]
[130] In some circumstances a jury might place undue weight on expert evidence. It might contain highly technical terms, give a misleading impression, be unreliable, be highly complex or be based on a methodology which a jury could not satisfactorily assess in respect of a fact which is fundamental to the prosecution case. In such a case, particularly where the probative value of the expert evidence is low or unknown, there may be a danger that the jury will defer to the expert or accept it when they ought to be far more circumspect.[63] But those circumstances did not exist in this case. The jury was not confronted with probabilistic and statistical evidence.[64] The evidence was reliable, and the conclusions reached by the experts were not challenged. As the experts acknowledged, there was no database which permitted them to give evidence about how common or uncommon the characteristics or combination of characteristics were. But they did not give, and were not asked to give, evidence about the probability that the foot impressions were made by the appellant.
[217]
[131] The probative value of the evidence should be assessed by reference to the fact which it was sought to prove, as part of a circumstantial case. The prosecution did not seek to rely upon the expert evidence as positively or directly identifying the appellant. Because the evidence was not admitted for such a purpose, its value depended upon the part that it played in a circumstantial case which relied upon other evidence to prove the appellant's presence at the crime scene. The evidence was probative of the matter that it sought to prove, even if it was not of high probative value, when viewed in isolation, in proving that the appellant was at the scene. It was admissible in proof of one aspect of a circumstantial case. Evidence of similarity is relevant and admissible as part of a circumstantial case.[65] Reliable expert evidence about comparisons and points of similarity or difference which would not be readily apparent to a jury without expert assistance has probative value in proving whether or not a person could have left a foot impression.
[218]
[132] The evidence was probative and the trial directions that were anticipated and in fact given addressed the potential of unfair prejudice.
[219]
[133] The conclusion of his Honour that the discretionary exclusion of the expert evidence was not warranted was open, and no error was made in reaching it.
[220]
[134] The appellant has failed to establish Grounds 6 and 7 in relation to the admission of the foot impression expert evidence.
[221]
[135] The appellant has failed to establish any of the six grounds of appeal against conviction. His appeal against conviction should be dismissed.
[222]
Application for leave to appeal against sentence
[223]
[136] The ground of appeal relied on in the proposed notice of appeal is that the sentence was manifestly excessive. Leave to appeal is also sought on the ground that the sentencing judge erred in describing the offences as falling into the worst category of murder.
[224]
[137] The appellant was sentenced to life imprisonment for each of the three counts of murder of which he was convicted. The 1,299 days spent in presentence custody were declared to be imprisonment already served under each of the sentences pursuant to s 159A(3) of the Penalties and Sentences Act 1992 (Qld). In accordance with s 305(2) of the Criminal Code, it was ordered that the appellant not be released from imprisonment until he had served a minimum of 35 years imprisonment, unless released sooner under exceptional circumstances parole under the Corrective Services Act 2006.
[225]
[138] The appellant was 33 at the time of the offences and 42 when sentenced. His offending commenced in 1988. On 15 April of that year, he was sentenced to 60 hours of community service for receiving. On 27 May 1993, he was sentenced to nine years imprisonment on each of six counts of arson and one count of attempted arson; five years imprisonment on each of 12 counts of breaking and entering; two years imprisonment on each of five counts of unlawful use of a motor vehicle and wilful damage endangering life; and 12 months imprisonment on each of six counts of wilful damage. He was sentenced at the same time to other terms of imprisonment for various offences with all terms ordered to be served concurrently. The arson offences included the destruction of the Ashgrove Police Station, an attempted arson at Red Hill Police Station and the burning of a police vehicle at that police station.
[226]
[139] The appellant was on parole for the offences for which he was sentenced on 27 May 1993 when he and a co-accused threw Molotov cocktails into and at premises which did not ignite. He was sentenced for the latter offending on 11 September 1998 to two years and six months imprisonment which was made cumulative upon the sentences already being served.
[227]
[140] The appellant was on parole when he committed the subject offences.
[228]
[141] The sentencing judge, Byrne SJA, found the following facts, which are unchallenged. In the middle of the night of Easter Sunday 2003, the appellant went to the Singh home. Neelma Singh was expecting him. Her brother, Kunal, aged 18, and her sister, Sidhi, aged 12, were also in the house, probably asleep. Something happened in Neelma's bedroom between her and the appellant. "Enraged by jealousy most likely, [he] strangled Neelma with both hands, using sustained pressure for about a minute, intending to kill".
[229]
[142] The appellant killed Kunal and Sidhi Singh to ensure their silence by striking their heads with the tines of a garden fork, inflicting multiple blows with severe force. Neelma Singh was probably dead when he struck and disfigured her face with the garden fork. He put his victims into the spa bath in the master bedroom ensuite. Kunal Singh had been rendered unconscious by the blows inflicted on him. He drowned after the appellant filled the spa bath with water and covered the three bodies with bedding. He then set about covering his tracks by cleaning up, using bleach and by implementing other measures to deceive the police. In that regard, he used his own children, taking them to the house on the Tuesday afternoon, when he pretended to discover the bodies. The appellant had no remorse whatsoever, they were "brutal, horrific crimes - in the worst categories of murder".
[230]
[143] The appellant's submissions were to the following effect. The sentencing judge erred in concluding that the subject murders fell within the worst categories of murder as the murders committed by the prisoner in R v Maygar; ex parte A-G (Qld); R v WT; ex parte A-G (Qld),[66] were significantly worse. Neelma Singh's murder was unplanned and was "what might be classified as a 'crime of passion'". Murders in such circumstances are not uncommon and her killing was no more brutal than most such killings. Kunal and Sidhi Singh were murdered in their sleep, whereas the victims in Maygar were not only conscious, but acutely aware of the circumstances in which they found themselves. Consequently, their suffering was enhanced by the deliberate and prolonged cruelty of the offenders.
[231]
[144] Keane JA, with whom Williams JA agreed, said, "Maygar's offences would be unimaginable if they had not actually occurred".[67] Maygar and two co-offenders killed three men in succession in a unit in Toowoomba. In the course of the incident, Maygar and an accomplice raped a young woman a number of times and threatened to kill another. Over a protracted period, Maygar behaved with extreme callousness and brutality demonstrating an inhuman disregard for the fear, pain and suffering of his victims.
[232]
[145] Maygar was 18 at the time of the offending and was also sentenced for various other offences including arson, assault occasioning bodily harm and armed robbery. He was sentenced to 15 years imprisonment for the manslaughter of one victim and to life imprisonment for each of the two offences of murder. On appeal, the minimum non-parole period was increased from 20 to 30 years. In respect of the question of leniency on account of Maygar's age, Keane JA said:[68]
[233]
"Maygar was, of course, only 18 years old. There is a difference between an 18 year old and a 26 year old in terms of maturity and personal responsibility; youth is usually a factor of great importance in fixing an appropriate sentence so as to reflect prospects of rehabilitation. But, in this case, these considerations are overwhelmed by the number and nature of the crimes. Maygar's youth cannot begin to explain or mitigate the wanton savagery of these killings. It cannot be suggested, and it is not suggested, that these killings were the result of youthful folly or immature judgment; indeed, the most striking feature of the account of the killings is the cold-blooded determination with which they were committed."
[234]
[146] Keane JA discounted the benefit to Maygar of his plea of guilty for the following reasons:[69]
[235]
"I pause here to note that Maygar's plea of guilty can count for little. It has little utilitarian value, coming as it did on the second day of the trial when a strong Crown case had been marshalled to prove his guilt. Adequate punishment must reflect that he has committed three other horrific crimes including the especially vicious murder of Lyons."
[236]
[147] Referring to the killing of Thompson because he was a witness to the earlier crimes, Keane JA observed:[70]
[237]
"[The Court accepts] the submissions advanced on behalf of the Attorney-General that a period of 30 years non-parole is appropriate punishment for offences of murder which are in the worst category of that offence ..."
[238]
[148] Slight reliance was placed on R v Hayes,[71] which was conceded to be "not closely comparable". It was submitted that it demonstrated that offenders guilty of the murder of three victims could be appropriately sentenced by the imposition of a non-parole period of 24 and a half years. Hayes burnt down the house in which his infant son, his son's mother, who was his former partner, and her new partner were living. The prosecution case was that Hayes was guilty either under s 302(1)(a) of the Criminal Code because in lighting the fire he intended to cause the three deaths, or under s 302(1)(b) of the Criminal Code because he killed three victims by lighting the fire, "an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life". The basis upon which the guilty verdict was returned was unknown but Keane JA observed that the sentence was not manifestly excessive, notwithstanding the non-release period of 24 and a half years, irrespective of the basis upon which the verdicts had been arrived at.
[239]
[149] Hayes is of little assistance for present purposes. There was no finding that Hayes intended to kill one person let alone three. Moreover, as the respondent pointed out, the issue for this Court to determine in Hayes was not the correct sentence which should have been imposed but whether the sentence imposed was manifestly excessive.
[240]
[150] Maygar is of some relevance in determining the appropriate non-parole period. The offending in that case was more protracted and brutal than the appellant's and it caused the victims more fear, pain and suffering than did the appellant's conduct. There are, however, countervailing considerations and one case cannot, of itself, establish a sentencing range let alone an appropriate non-parole period. As was said by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen:[72]
[241]
"Express legislative provisions apart, neither principle, nor any of the grounds of appellate review, dictates the particular path that a sentencer, passing sentence in a case where the penalty is not fixed by statute, must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. The judgment is a discretionary judgment and, as the bases for appellate review reveal, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies." (citations omitted)
[242]
[151] In Bugmy v The Queen,[73] Dawson, Toohey and Gaudron JJ quoted with approval the following passage from the judgment of the Court in Deakin v The Queen:[74]
[243]
"The intention of the legislature in providing for the fixing of minimum terms is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence."
[244]
[152] Dawson, Toohey and Gaudron JJ also referred with approval to the dissenting judgment of Crockett J in the Court of Criminal Appeal:[75]
[245]
"In his dissenting judgment Crockett J. emphasized that the punishment imposed on the applicant 'has always been, and will remain, one of imprisonment for life'. His Honour continued:
[246]
'If at the expiry of whatever minimum term was fixed the applicant's attitude and behaviour were as they now are, I should have thought that he could entertain no prospect of being paroled. On the other hand, no one can say that the stage might not be reached when the expert advice of Corrections Department authorities will be that the applicant is suitable for an attempt at parole, even though at present that day may appear far distant.
[247]
It is for this reason that it seems to me to be inappropriate, and possibly counter-productive, to a prisoner's possible rehabilitation, and so to the community interest, if an inordinately long period, every day of which must be served, is fixed as a non-parole period. This, of course, is not to say that in fixing a minimum term the elements of deterrence and retribution are to be disregarded.'"
[248]
[153] After discussing the importance of uniformity of sentencing, their Honours said:[76]
[249]
"Crockett J. was also concerned that some reasonable degree of uniformity be achieved in the fixing of a minimum term where a life sentence had been imposed ...
[250]
Uniformity of sentencing is a matter of importance. It cannot be pressed too far but what does emerge is that the minimum term fixed for the applicant is higher than any other in the statistics furnished to the Court of Criminal Appeal. That of itself is a matter calling for some scrutiny of the minimum term on the part of the appellate court. But in the end the minimum term is to be fixed because all the circumstances of the offence require that the offender serve no less than that term, without the opportunity of parole: see generally King C.J. in Reg. v. Robinson. There is no incongruity necessarily involved in this approach, as Jenkinson J. noted in Morgan and Morgan, when, as a member of the Victorian Court of Criminal Appeal, he said:
[251]
'The term of the sentence is the period which justice according to law prescribes, in the estimation of the sentencing judge, for the particular offence committed by the particular offender. The ... minimum term is the period before the expiration of which release of that offender would, in the estimation of the sentencing judge, be in violation of justice according to law, notwithstanding the mitigation of punishment which mercy to the offender and benefit to the public may justify.'" (citations omitted)
[252]
[154] It may be seen from the above discussion that the factors to be taken into account in determining an appropriate sentence on the one hand and a non-parole period on the other do not necessarily coincide, at least in so far as the weight to be afforded to them is concerned.
[253]
[155] Also, there are a number of matters which distinguish the circumstances under consideration in Maygar from those now under consideration. Maygar was 18 at the time of his offending. His criminal history was not nearly as bad as that of the appellant. He pleaded guilty on the second day of his trial. The plea was late but it nevertheless materially reduced the cost to the public of the trial and lessened the burden on police resources, enabling them to be employed elsewhere. The plea also removed the need for witnesses affected by the horrific circumstance of the offending to undergo the ordeal of giving evidence. None of Maygar's victims was a child and it was also relevant that this Court in Maygar accepted the non-release period which the Attorney-General submitted was appropriate.
[254]
[156] Under s 305(1) of the Criminal Code, the sentencing judge was required to impose a head sentence of life imprisonment on each count of murder. Because the appellant was being sentenced for more than one offence of murder, the sentencing judge was required to order that the appellant not be released from imprisonment until he had served a minimum of 20 or more specified years of imprisonment "unless released sooner under exceptional circumstances parole under the Corrective Services Act 2000".[77]
[255]
[157] The exception taken by the appellant to the sentencing judge's description of his crimes as being "in the worst categories of murder" is misplaced. The judge was addressing each murder in the context of the killing of three children in the one family in what was, in effect, one incident. The killing of Neelma Singh was unremarkable only in the sense that the unpremeditated killing of women by their spouses, partners and lovers for reasons such as anger, jealousy and revenge is regrettably all too common. None of those matters, of course, excuse or mitigates the offending in any way.
[256]
[158] In the incident under consideration, the appellant, having killed Neelma Singh, proceeded to murder the 18 year Kunal Singh and the 12 year old Sidhi Singh in order to prevent them providing information which might lead to his detection. Although the murder of Neelma Singh may have been unpremeditated, as the sentencing judge impliedly found, the other murders were not. The wilful killing of a child is regarded by society with particular abhorrence. Neelma, Kunal and Sidhi Singh were deprived of the possibility of having long and fulfilling lives. Their parents and surviving sibling were deprived of their companionship, love and support. Instead, as the sentencing judge found, they were condemned to lifelong misery and suffering.
[257]
[159] Reliance was placed by the respondent on the following observations of Mason CJ, Brennan, Dawson and Toohey JJ in Veen v The Queen [No 2]:[78]
[258]
"[T]he maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed ... That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."
[259]
[160] For the reasons discussed above, the appellant's offending is not "recognisably outside the worst category". Moreover, the maximum term of imprisonment and the only term able to be imposed for murder is life imprisonment.
[260]
[161] In light of the appellant's criminal history, his complete lack of remorse, his dubious prospects of rehabilitation, personal and general deterrence and protection of the community, the sentencing judge was entitled to specify a non-release period substantially in excess of the statutory minimum.
[261]
[162] In determining an appropriate sentence and non-parole period, the sentencing judge had no comparable decisions (apart from Maygar which was of limited relevance) available to him on which he could base his judgment. As Street CJ remarked in R v Jackson and Hakim:[79]
[262]
"There is accordingly no perceivable sentencing pattern reflecting the accumulation of judicial wisdom deriving from multiple instances of sentencing decisions. Inevitably this imports a wide discretionary field open to a sentencing judge."
[263]
[163] In Wong v The Queen,[80] Gaudron, Gummow and Hayne JJ discussed, as follows, the circumstances in which an appellate court was justified in upholding a sentence appeal:
[264]
"Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons."
[265]
[164] No specific error of principle, fact or law was established by the appellant. Nor was it shown by that the difference between the non-parole period fixed in this case and those fixed in the two cases referred to by the appellant was such as to require an inference that there must have been some misapplication of principle.
[266]
[165] No error in the exercise of the sentencing judge's discretion has been shown and leave to appeal should be refused.
[77] Section 305(2)(a) of the Criminal Code Reprint No 4G. The minimum term of imprisonment under s 305(2) was increased to 30 years by s 3 of the Criminal Law Amendment Act 2012 (Qld) Act No 19 of 2012.