R v Smith [2002] VSCA 219

5. The applicant had no prior convictions and after hearing a plea in mitigation which involved the production of some evidence and a Victim Impact Statement, the learned judge on 6 December 2000 sentenced the applicant to be imprisoned for 22 years on count 1 and nine years on count 2. His Honour directed that four years of the sentence on count 2 were to be served cumulatively upon the sentence on count 1 making for a total effective sentence of 26 years' imprisonment. A non-parole period of 22 years was fixed and a declaration made of 490 days pre-sentence detention having been served. On 7 December 2000 the applicant lodged notice of application for leave to appeal against his convictions pleading a number of grounds. On 16 September 2002, by leave of the learned Registrar, four more grounds were added so that at the commencement of the hearing of this application 11 grounds had been pleaded.

8. During the hearing Dr Freckelton, for the applicant, sought and was granted leave to withdraw grounds 1, 2, 3, 5, 7 and 11 and further leave to amend grounds 4, 6, 8, 9 and 10 as follows:

"4. That the learned trial judge's directions to the jury in respect of the evidence of Dr Cass fell into error by failing expressly to direct the jury that they should disregard his opinions if they accepted that Ms Taylor had received her burns in a short, intense exposure to flame or as a result of contact in part with molten matter from the fire. 6. That the learned trial judge's directions to the jury in respect of the evidence of the witnesses Barnes and Xydias were defective in that he should explicitly have identified flaws in the witnesses' evidence and warned the jury accordingly. 8. That the verdict was unsafe and unsatisfactory as a result of the deficiencies identified in Grounds 4, 6, 9 and 10 in the aggregate, even if the deficiencies individually did not amount to miscarriages of justice. 9(a) That, in the circumstances of the case, the learned trial judge ought to have directed the jury that if they were to find the applicant guilty beyond reasonable doubt, they needed to find motive proved beyond reasonable doubt. 9(b) That, in the context of the direction as to motive, the learned trial judge ought expressly to have identified to the jury those matters which suggested that the applicant did not have a motive to kill his child. 10(a) That the learned trial judge erred in leaving the issue of consciousness of guilt to the jury in respect of what the Crown alleged to be "four important deliberate lies". 10(b) That in the alternative to Ground 10(a), the learned trial judge erred in failing in his directions expressly to apply the consciousness of guilt direction to the facts of the case. 10(c) In respect of the consciousness of guilt direction in relation to the relationship with Donna Wilkinson, if it was properly given, which is denied in Ground 10(a), the learned trial judge ought to have drawn specifically to the jury's attention the potential reasons why the applicant may have lied other than out of consciousness of guilt. 10(d) In respect of the consciousness of guilt direction in relation to the preceding fire in the kitchen, the learned trial judge ought not to have directed on consciousness of guilt because the applicant's alleged lie in respect of the preceding incident was not a material issue. 10(e) In respect of the consciousness of guilt directions in relation to the third and fourth alleged lies, the consciousness of guilt direction should not have been given because it was not properly open for the jury to draw an inference of consciousness of guilt out of the accused's alleged lies when such a process would constitute improper `boots-strapping' - it would involve the jury inferring that lies established by their ultimate conclusions were to be used as a consciousness of guilt in respect of the ultimate conclusions."

12. It is now necessary to set out, in summary form, the evidence which was adduced at the trial of the applicant. In this exercise, I have had recourse to the summary of evidence supplied to this Court as to which no dispute has eventuated.

15. The applicant met Nicole Taylor in Queensland in 1990 while he was stationed at the Amberley Air Base as a Sergeant with the Royal Australian Air Force. They married in July 1991 just prior to moving to Orlando, Florida where the applicant was to take up a posting with the RAAF. In the early part of 1994 an American woman named Donna Wilkinson was appointed secretary to the team with which the applicant worked. Wilkinson and the applicant became friends. The Squadron Leader attached to the team was one Len Neist and one of the members of the team was Ian Harris, a civilian Australian Defence Force employee.

18. In December 1994, the applicant and his wife returned to Australia just after she became pregnant with their first child. In January 1995, he was posted to the Williams Air Base at Laverton and held the rank of Flight Sergeant. They moved to a RAAF rental house in Hoppers Crossing. Their child, Adrian, was born on 25 July 1995.

21. Meanwhile, Wilkinson, who had become pregnant to Ian Harris, came to live in Australia with Len Neist and his family. Harris acknowledged that he was the father of Wilkinson's child, Melissa, who was born in Canberra in May 1995, and contributed financially, but otherwise had little contact with her.

24. As far as Nicole Taylor was concerned, her evidence disclosed that her marriage with the applicant was stable, and all appeared well. On one occasion in Florida during the time they were trying to conceive a child she discovered that the applicant had accompanied Wilkinson to an ultrasound test. She felt angry with the applicant about that and they had argued. However, they were both happy when she became pregnant and "moved along". She was aware that the applicant had spoken to Wilkinson on the phone and received photos from her of her baby. When Adrian was born everything seemed normal and he reacted to the baby like "dads would". The applicant had a lot of interest in computers and worked on them at home. He kept a glass jar, similar to the type found in science laboratories with a glass stopper, containing a clear liquid. The applicant told her it was used for cleaning computer parts.

27. Nicole Taylor said she became a little uneasy in the weeks prior to 4 October 1995 due to some unusual events occurring in their house. About a week after the applicant returned from a conference in Canberra in early September, she was awoken during the night by the smell of gas. She woke her husband up and they opened up all the doors and windows. Later this gas leak was attended to by a plumber who could find no problem. About a week later, on 26 September 1995 she was awoken by the sound of smoke alarms. She got up and looked down the hallway to find the applicant standing on the other side of the kitchen with a fire extinguisher in his hand. In front of him was a garbage bin with flames going up to the roof. She saw him put the fire out and they took the bin outside. There, it rekindled itself, and so he extinguished it again. As a result of these events, and just days prior to the offence, she decided to buy an aromatherapy burner to help calm her down. This she placed on the bedside table next to her bed along with a lamp and a box of tissues.

30. Nicole Taylor said that, on the night of 3 October 1995, she stayed up later than her husband did, in order to feed the baby. The baby was sleeping in the bassinette in the loungeroom, which was opposite the bedroom. She got up at 5.30am to feed him, put him back in his bassinette as was her practice and then went back to bed. She was a light sleeper and would wake regularly through the night to feed the baby if he cried. She had a cold at the time.

33. The next thing she remembered was waking up and finding it difficult to breathe. She felt like she was being held down, with something which smelled very strong, like the smell at a dentist's, over her face. She remembered kicking and thrashing and trying to push "it" off, saying "no, no". She remembered being upside down on her hands and knees on the bed facing its front. She remembered seeing the outline of what she later knew to be her baby. At the time, she was not aware that her baby had been put in the bed next to her. Her next memory was that of being outside on the patio, with the neighbours offering her help. She did not know if it was pain or not being able to breathe which woke her up.

36. Other evidence revealed that between 7.00 am and 7.30 am on 4 October a fire was first noticed by Andrew Madjlik and his wife Kathy Madjlik who lived next door to the Smiths. They first heard the noise of an activated smoke detector. They then saw smoke coming from next door. Mr Madjlik called for the fire brigade while Mrs Madjlik went outside and looked over the fence. She observed somebody lying down in between the doorway of the house. They jumped over the fence and went to help, Nicole Taylor, whom they observed to be burnt, especially on her arm. She was obviously in pain. Mrs Madjlik asked her if there was anyone else in the house. When told that the baby was in there, Andrew Madjlik went inside to find him. There was smoke everywhere and he could not find him. When told that he was in the loungeroom in the bassinette, he tried again but was again unsuccessful. Eventually, Nicole Taylor went in with him despite the pain. Mr Madjlik forced open the door to the bedroom, which was filled with heat and smoke. He noticed a flame towards the bedhead on the left side. He then saw the baby on the bed, on fire.

39. Once he left the house he phoned the applicant and told him about the fire and that his wife was going to hospital. The Madjliks waited with Nicole Taylor until the fire engines and the ambulance arrived. The baby was found to be deceased and badly burned. Nicole Taylor received treatment for her injuries. She was treated for extensive full thickness burns to her right arm which caused her arm to be distorted and contracted, as well as for superficial burns extending up her shoulder, chest and left hand. She was then taken to the Werribee Hospital, and then flown by helicopter to the burns unit at the Alfred Hospital. Her first recollection was of seeing her husband by her bed. She told him what she remembered of the fire, of being held down. He told her it "didn't happen like that". While in hospital in Melbourne for the next two months, her husband, along with other members of her family, would stay with her and assist her. On 27 November 1995, the applicant told her that he wanted a separation and that he was leaving the RAAF. He would not give her any explanations. She was devastated. Some time later her right arm was amputated below the elbow. She eventually returned to her parents in Queensland where her treatment, which included multiple skin grafts, continued for about eighteen months.

42. There was a division of their joint account and she kept the family car. On 27 January 1996 and 2 February 1996, she received letters from the applicant (Exhibit F). He told her that he was visiting friends in America and that he would be leaving for London. He had withdrawn his superannuation, which he put into an account at the Commonwealth Bank and later sent to America. He no longer provided any financial support to her. Later she became aware that she might be entitled to some of her husband's superannuation and she sought an ex parte order from the Family Court in relation to that.

45. In March 1996 the applicant returned to Australia with Wilkinson. They rented a flat in Queanbeyan for about six weeks. When he tried to return to America with Wilkinson on 11 April , he was detained at the airport in Sydney by the Federal Police. At that time he held a passport which had been issued to him on 19 December 1995. His passport was taken from him and Wilkinson and her daughter departed without him. In January 1997, the applicant applied for a new passport. On 1 February 1997, the applicant attended Cobram Police Station and reported his passport as lost. He produced a document for signature by the police to that effect. He then indicated to the passport office that he had misplaced his old passport. However, as a result of enquiries with the Family Court the passport office became aware that his official passport had been seized, and he was advised that it would not be possible to issue him with a new one. He then was forced to remain in Australia.

48. Neil Stanley Barnes, a forensic consultant specialising in fires detection, gave evidence of undertaking tests on candles and the aromatherapy burner with tissues because he did not believe it to be the cause of the fire. He allowed the candles to burn to completion, (approximately 4 hours each) and he placed tissues on the outside of the holes in the burners. He found that all but 2 of the 48 candles he tested burnt with no spattering, and that those which did spatter did not cause the tissues to burn because the droplets did not have the heat capacity to continue burning. Thus there was no charring or scorching to the tissues. In another experiment, he placed tissues even closer on the outside of the burner right over the holes. There was some scorching but no ignition. In another test he placed the tissue inside the flame, with another tissue abutting it. This time the tissue caught fire and burnt for about 5 seconds but never reached the other tissue. He had never dealt with a case of a fire which had been caused by a tea light candle in or out of a burner in a manner unexplained.

51. Cross-examined about pillows burning, Barnes stated that Dacron pillows are difficult to ignite, but burn readily once ignited. A tissue, he said, would probably not light such a pillow. In his opinion the fire did not commence in the vicinity of the aromatherapy burner, but rather it started on the right side of the bed near the bedside table. From a view of the photographs it appeared that the fire had burned the longest, and therefore started, in that part of the mattress where the inner springs had collapsed.

54. Dr John Potter Masterton, a medical practitioner and head of the Burns unit at the Alfred Hospital, gave evidence that Nicole Taylor was admitted to the hospital with full thickness burning to the whole of the right arm, partial burns to her left arm, face and scalp and some patches of full thickness burns to her ears. Initially, the little finger of her right hand was amputated, then later much of the arm itself. At the time, the doctors could not understand why there was so much burning to the right arm and lesser burning elsewhere. From past experience he would have thought there would have been a greater degree of burning of the rest of her body. The burning resulting in the full thickness burns was not the type of injury that a person sleeping normally might sleep through because it would be extremely painful. Generally people who are extensively burned in bed are people whose functioning is impaired, such as alcoholics or those under the influence of drugs. Generally, he said, they have extensive burns rather than burns confined to one particular area. This victim did not have significant inhalation injury. Usually, someone in a burning room would either get out fairly quickly or would not get out at all due to a lack of oxygen or an excess of carbon monoxide.

57. George Xydias, a forensic scientist and fire scene examiner, gave evidence that most of the fire was in the top half of the bed in the southwestern corner. There was damage extending down almost to floor level. The fire appeared to have started in that quarter or beside the bed nearest the chest of drawers. He observed that the watch on the bedside table had stopped functioning at 7.15 and 41 seconds which suggested that the fire was progressing quite well at that time. The electric lamp was not seen to be a possible source of the ignition. The aromatherapy candle was seen as a possible source or ignition and was examined later at the laboratory. The only other possible source, he said, was from a deliberate means such as an accelerant. He had not observed any smell that would have indicated an accelerant but there was a possibility that a small amount of a volatile solvent, such as acetone, ether, or chloroform, might have been used which would not have left a trace at all. The fire had progressed very rapidly in this case and one explanation was that it had been deliberately lit and fuelled by some volatile solvent. This was because a fire should normally go through a smouldering stage which is in itself a very lengthy process. By the end of the day at the scene, he suspected that this had been something other than an accidental fire.

60. The candle taken from the scene was found to have been one third consumed and the aluminium base had not melted. The bottles of oils taken from the scene were examined and found to be normal, as were the candles which were found to burn normally. A test burn was carried out at the Metropolitan Fire Brigade in Abbotsford in which the scene was emulated as closely as possible. It was found that only when tissues were placed on the flame of the burning candle did they ignite. When the box of tissues was placed next to the burner and a tissue pulled form the top was draped across the burner, there was still no ignition. An experiment on the tissue box showed that the time it took to get to a smouldering stage and then burning stage was 20 minutes. The tissues did not burn well. It was unlikely that the accidental cause of the fire was the aromatherapy holder and candle. Tests were later conducted using a small amount (50 mls) of ether poured on the corner of a bed and on top of a bedside table near the tissue box, and ignited. The solvent ignited immediately. The difference between igniting the vulnerable materials, such as the pillow or mattress, with a match or cigarette lighter and with a volatile solvent would be about a minute in time. If the fire had started on top of the bedside drawers the witness would have expected a lot more burning to the top of the bedside drawers and to the base of the bedhead and he would not have expected it to progress in the way it did to the mattress.

63. Dr Noel Morris Cass, a medical practitioner and specialist anaesthetist, gave evidence of ether anaesthesia; that the first stage is the gradual onset of loss of pain, followed by total analgesia. Ether has not been used in Melbourne for over 30 years because of its inflammability and post-operative effects. It is a colourless liquid which disappears quickly if exposed to air. It is a powerful solvent. It is administered to the air which is breathed into the lungs. If a person has been anaesthetised to have a surgical injury inflicted upon them it would take at least five minutes for them to wake up. The witness when shown Exhibit H, the photographs of the victims' burns to her arms, stated that in the early stages of the burn the pain would have been absolutely intense, and appallingly so through the whole process of the burn. He could not believe that anyone would stay asleep through the infliction of such an injury, so that one is driven to the conclusion that there must have been some reason for the person not to have responded to a burn of this severity. There would have had to have been a scenario where the patient had been deprived of oxygen and lost consciousness as a consequence, or had been affected by carbon monoxide poisoning. Otherwise one would be led to the inescapable conclusion that some other process had occurred which made the patient unaware of the pain for a short time at least.

66. In the case of oxygen deprivation, consciousness is restored within one or two breaths if they are removed from the scene to a place where there is normal oxygen. There would be evidence of brain damage if a person were deprived of oxygen for more than 3 minutes. Where there is oxygen lack due to a fire, because fires usually become incremental the danger of oxygen deprivation would increase with the duration of the fire unless some other factor became operative which restored oxygen to the patient's lungs.

69. In the case of carbon monoxide poisoning, it insidiously produces oxygen lack and therefore lack of consciousness. The only way to relieve it is to breathe in atmosphere without it and then exhaling it. This is a slow process and takes 4 hours for half of it to be removed from the body. Unless some other factor is operative the carbon monoxide intoxication would progressively increase and would ultimately lead to death. In this case pathology tests taken at the hospital indicated that the victim, Nicole Taylor, had a trivial amount of carboxyhaemoglobin in her blood. The figures did not support the view that there had been a period of carboxyhaemoglobin intoxication sufficient to make the patient unconscious and then to awaken or at least to then recover to this level within one hour.

72. Thus he was driven to the view that she was administered some other substance which would allow her to suffer such an injury without rousing. In the case of ether, it was common for patients to be very resistant to inhaling the ether because it is so irritant and induces a feeling of being suffocated and the patient would often try to escape by thrashing around. The account given by Nicole Taylor in relation to what she remembered prior to the fire is consistent with this. It is a well-known characteristic of ether administration that that during recovery, there is a substantial loss of sensation of pain and this may go on for some time. If they are left alone for a period of time they will become unconscious for a period of time until they have another stimulus which arouses them again. It would only require half a dozen breaths of strong ether vapour to produce a substantial impairment of consciousness.

75. It is convenient to now interpose a summary of the evidence of John Terence Marshall, a consulting forensic engineer: who was called by the defence. This witness said he conducted a number of tests on tea light candles and found that if the candle was heated to above its flash point it would produce an enlarged flame. Tests done in relation to a tissue box showed that fire development was quite vigorous and a fire could be spread from pieces of a tissue falling from table height to the floor and coming into contact with bed linen.

78. The Crown also called evidence of the applicant's relationship with Donna Wilkinson. The first witness as to this was Neist, by now, a former Wing Commander with the RAAF. He gave evidence that he was posted on the same project with the applicant in 1991 in Orlando, Florida. In February or March of 1994 a new secretary (Donna Wilkinson) was hired. At about the same time the applicant came to him and they had a discussion in which the applicant told him that he and his wife did not seem to have common interests in the marriage. He advised the applicant that from an administrative point of view it would be better to wait till he returned to Australia if he wanted to be divorced. In September 1994 he had another conversation with the applicant who told him that his wife was now pregnant, that he was happy about that and that he had changed his mind about a divorce. In December 1994 the witness returned to Australia and in January 1995 Wilkinson, who was also pregnant, came to stay with him and his family. Her baby was born in May 1995 and in September 1995 she returned to America. In mid 1995, the applicant applied for a commission in the RAAF for which the witness gave him a reference. Some weeks after the fire the applicant again contacted him and told him he was considering leaving the RAAF because he was thinking of establishing a business in America in software development. In March 1996 Neist picked up the applicant, Wilkinson and her child from the airport and took them to Canberra where they rented a flat for about a month. The applicant visited his family during this time. In 1996 Neist said he knew that Wilkinson initiated proceedings at the Family Court involving her child and the man known to be the father of the child, Ian Harris.

81. Stephen Herbert Dickerson, a former flight Sergeant with the RAAF, gave evidence that he knew the applicant and his wife in Florida. They seemed a happy couple. He observed that the applicant became friendly with Wilkinson.

84. William Alfred King, formerly employed by the RAAF, told the Court that he observed the applicant to be friendly with Wilkinson in America. He spoke to the applicant after the fire and felt that he had a nonchalant attitude about the event.

87. Adrian Charles Dolling, also formerly employed by RAAF gave evidence that he worked quite closely with the applicant at Laverton in 1995. He noticed the applicant had a photograph on his workstation of a woman in a bikini called Donna. On 15 June 1995 the applicant applied for a commission. On 4 September 1995 Dolling went to a seminar in Canberra which was attended also by the applicant. He noticed that Wilkinson was there as well and that she and the applicant seemed close, sometimes touching each other. Later they went to a restaurant and she sat next to the applicant. On 27 September 1995 the applicant applied for discharge from the RAAF. This witness, then being the applicant's Squadron Leader, signed the application form on 3 October 1995. He said he had tried to change the applicant's mind but the applicant told him he had a job offer in America. Three months' notice of discharge was required by the air force. On 4 October, having learnt of the fire, he extracted the application form to see if the applicant wished to withdraw it. About a week later he asked the applicant about this but was told he was still going ahead with the discharge and would leave for America. When he saw the applicant at the hospital after the fire he noticed that he was very pale. At the funeral a week later he seemed quite calm and gathered.

90. The next witness, Peter Colin Hills, a Flight Lieutenant in the RAAF, said he worked with the applicant in Laverton in 1995. The applicant spoke to him of his friendship with Wilkinson, describing her as good looking and fun to be with. He attended the seminar in Canberra in September 1995 with the applicant who had his own car and went to visit some friends on occasion. He saw the applicant and Wilkinson at a restaurant. He was dressed in a white tuxedo and she was in a ball gown. They were going to the casino afterwards. On the last day of the conference, he was invited by the applicant to have a spa and sauna in the motel. When he got to the applicant's room he saw Wilkinson dressed in a tracksuit sitting on the bed. They then all went to the spa. Afterwards they all went back to the applicant's room and chatted for about 5 or 10 minutes.

93. He was aware that the applicant had applied for a commission and thought it was a good idea. He was surprised to find out that the applicant had applied for a discharge and had not spoken to him of it.

96. The witness said he went to the Werribee Hospital after the fire and saw the applicant who appeared distraught. He heard (presumably from the applicant) that the applicant had lit the oil burner on the bedside table because his wife had a cold. The applicant did not go back to work until November 1996 and then only on part time duties. When asked about whether he wanted to continue with the discharge, the applicant replied that he had organised the rehabilitation for his wife that would be required. Later, at the end of November he indicated that he intended to leave his wife and go back to the US to work, because there had been problems in his marriage; that his wife would blame him for the death of the baby and that he would not be able to live with his wife looking at her amputated arm and bringing back the idea that it had been his fault.

99. Andrew Stephen Taylor, Airman of the RAAF, told the Court he also worked with the applicant at Laverton in 1995. When the applicant returned to work in early November 1995 he told him he had decided not to pursue the commission and that he was going to America to take up a position. When asked about Nicole he said that she was not going. She did not want to leave her family support. He seemed keen to get the discharge and go overseas.

102. Frank Todaro, manager of the Werribee Plaza Travel Service gave evidence that on 22 November 1995 the applicant purchased a one way air ticket from Melbourne to Orlando.

105. John Robin Cronin, a psychiatrist, told the Court that on 4 December 1995 he had a consultation with the applicant who had been referred to him by a social worker of the RAAF. He was told by the applicant that his decision to leave the airforce was to enable him to run away from everything; that he felt responsible for what had happened to his wife; that there had previously been tensions in the marriage. The witness made a diagnosis of an adjustment disorder. He was not told of any involvement with another woman at the time of the fire, nor that he had been sending her money and that he intended to start a new life with her in America.

108. Dr Cronin was followed by Mary Benson, a social worker attached to the RAAF. Her evidence was that she saw the applicant on eight occasions between October and December 1995. He told her he was leaving his wife because he could not cope, that he had not loved her and he could not stay with her now. He said he wanted to go to America because he had a good time there. This led her to be concerned at the timing of his decision and so she referred him to the psychiatrist. She visited Nicole Taylor in hospital who was very upset that the applicant was leaving her. The applicant did not tell her he had formed an emotional attachment to another woman, or that he had sent large amounts of money to her.

111. Donna Pratten, a jeweller from Clearwater, Florida gave evidence by way of videolink. She said that company records indicated that on 14 January 1996 a small gold ring and an engagement ring with a 1.4 carat diamond and 2 smaller diamonds, were sold to a man and woman. The invoice was made out to Donna Wilkinson and the payment was made by Mark Smith. The cost of the gold ring was $34 and that of the engagement $5,261.

114. The evidence of police officers covered statements the applicant had made to them after the fire. He made a written statement on 11 October 1995 (Exhibit AK). In it, the applicant stated that he had awoken at 6.30 am on the morning of 4 October 1996. He got ready for work then brought the baby into the bedroom and placed him at the foot of the bed. He heard Nicole breathing heavily due to a cold, so he placed some Vicks VapoRub on a tissue and put it on her face, a method they had utilised in the past. She grabbed him and pulled him down on to the bed. He then laid the baby down next to Nicole on the bed. He went and got the oil burner from the loungeroom, lit it and placed it on the bedside table. He remembered checking to see there was enough distance between the burner and the tissue box. He kissed Nicole goodbye. She responded with a mumble and he left. It was about 7 am.

117. Thereafter, a record-of-interview was conducted with the applicant on 25 February 1997 by Detective Senior Constable Bona (Exhibit AM). During this, the applicant stated that he remembered picking up the baby and putting him in the bed with Nicole. He stated that that was a normal occurrence, every day. He stated that putting Vicks VapoRub on a handkerchief and putting it on or near his face was something his family would do. He said that on this occasion when he did it for Nicole she went crazy and almost threw him off the bed. He remembered "flying through the air and landing on the other side", that he was scared of her reaction and that somewhere along the lines she grabbed him and threw him across the bed. However, she still seemed to be asleep when he left. He then finished fixing up the baby, put him in the bed, kissed Nicole, told her the baby was with her and she acknowledged that by grunting.

120. He stated he used to use a cleaning fluid in a beaker with a glass top, which he got from the store. He kept it at home but he denied ever using ether.

123. He spoke about his relationship with Nicole, how it had not been very happy and how they had argued. He had met Wilkinson in America. She was attractive and brightened up the office. He stated that the relationship was never a sexual one. He agreed he had accompanied her to have an ultrasound but did not remember arguing with Nicole about that. However, he and Nicole were both looking forward to the birth and everything was ok at the time of the birth. He contacted Wilkinson about once a month or every six weeks. He was not very happy in his job, about a month after starting there, and was trying to find something else to do. He put in the discharge papers about two months prior to the fire just as a "means to an end".

126. He denied that (on 26 September 1995) he was putting out the fire in the rubbish bin when Nicole came out. He said it was the other way round, that she was awake first and told him to put the fire out. He had no idea how the fire might have started.

129. He agreed he had come back to Australia in March 1996 with Wilkinson and that he was attempting to return to America with her but that their relationship was no different from that which he had with his other girlfriends.

132. He said he had no finances with which to help Nicole and that this was just a vendetta by her to make things hard for him. At first he could not give an address in America but later agreed with one put to him by police. He would not say whether it was also Wilkinson's address.

135. Evidence was also given of a second record-of-interview between Federal Agent Jennifer Russ and the applicant on 26 August 1998 at Jabiru Police Station in the Northern Territory (Exhibit AP). The applicant stated that he wanted to return to America because he had started up a company by the name of MDM Solutions which he wanted to get going over there. However he never had a chance do that because he had to come back for property settlements and had not been able to go back since. He was unaware that court proceedings had started until he tried to leave Australia. He could not remember where he had been living in Palm Bay Florida. He was not residing with anyone and he was paying the rent. He was using his leave cash-outs to live on. He opened an account in his name in Palm Bay, and he was the only signatory. He bought a Chevrolet and did not know what happened to it. He was the only person allowed to drive it. He left the keys to the car in the apartment, along with his boxes of possessions and did not know what happened to any of it.

138. He later tried to authorise another person to get the money sent back to Australia. That person was Wilkinson. He sent the letter to her parents, but it was not the correct authorisation or "something along those lines". He had about a hundred thousand dollars in an American account, which was from his superannuation funds. He had told the Commonwealth Bank in December 1995 or January 1996 to send the money to the Credit Union in America. He did not discuss this with his wife. The money had however been transferred out of the account in America. He was unsure how this happened but thought it was because of a couple of cheques he had left for paying bills. He thought he left these with Wilkinson. He did not authorise her to take money out of that account and she refused to talk about it, but it was an amicable relationship because he was a fairly relaxed sort of person He did not want his wife to get the money because she had put him through hell. He said he contacted Wilkinson sometimes twice a week, sometimes every couple of months.

141. Further evidence for the prosecution came from the police officer Bona, the informant. On 18 December 1995, he said, he contacted the applicant by telephone in relation to his travelling overseas. He was told he could be contacted at Ronald and Mary Wilkinson's, the parents of Donna Wilkinson, in Florida.

144. Later, on 16 April 1996, he obtained a document handwritten and signed by the applicant, giving Donna Wilkinson permission to operate his bank accounts "as she sees fit". Along with this was a bank cheque in the amount of $40,000 payable to Donna Wilkinson signed by the applicant and dated 22 April 1996, and another in the amount of $30,200 dated 24 April and payable to Donna Wilkinson. Bank statements revealed that this money was placed in a credit union in America and consistently withdrawn from over the next few years.

147. Bona also obtained a document from the Commonwealth Bank dated 31 January 1996 relating to the transfer of funds from the applicant's account in Werribee to his account in Florida. The address on this document was 945 Sonesta Avenue NE, Palm Bay, Florida, USA, the apartment he was allegedly sharing with Wilkinson. A banking chronology was tendered ( Exhibit BA).

150. A number of e-mails were downloaded from the applicant's computer. These were dated from 23 November 1996 to 20 January 1997 and 23 April 1997 to 24 August 1999. One of these e-mails was dated 10 December 1996, and authorised the applicant's "fiance" Donna Wilkinson, to set up a new insurance policy for the car he had bought.

153. Files were also downloaded which contained photographs, and a document entitled "Smith Family Tree" which referred to Donna Wilkinson as being the wife of the applicant and Melissa Wilkinson as the child of the applicant. A search was conducted in August 2000 of Wilkinson's apartment in Florida. This was found to be in the name of the applicant, as was the car she was driving. A letter was found which had been written by the applicant on 12 October 1995, one week after the fire, in which he enclosed "another" cheque. In it he wrote "....I don't love her but I'm not cold and heartless either. I'm looking forward to so many things when we get started in the US...any amount of money I send over can be used for whatever purpose you see fit.... Give Melissa a kiss from me and say hi to your mum and dad. Talk to you soon. Love Mark".

156. The informant also gave evidence of being able to buy ether from a pharmacy without prescription or identification.

159. The applicant stood mute at his trial. In addition to the witness Marshall already referred to, counsel called the applicant's brother, mother and sister-in-law. Their evidence has been but slightly referred to in this application.

162. I now turn to the arguments of counsel on this application. Dr Freckelton began his submissions by asserting that the Crown case against the applicant was essentially based on four contentions.

* That the applicant anaesthetised his wife ("the anaesthesia theory"), probably with ether and brought his son into the bedroom for the purpose of burning both of them to death.

* That the applicant set fire to the bed probably using an accelerant - most likely ether.

* That the applicant had a motive for his conduct, viz a pre existing covert relationship with Donna Wilkinson.

* That a series of statements made by the applicant to the police evidenced his consciousness of his guilt of the crimes charged.

169. In an initial general submission, Dr Freckelton argued that in as much as the grounds of appeal voiced complaints as to the conduct of the applicant's trial, a number of what he called "deficiencies" may aggregate to a miscarriage of justice.

172. Counsel then turned to ground 9. He submitted that the relevant authorities establish that, in general terms, the Crown does not have to prove motive. But they also established, he argued, that in certain cases it was necessary for the Crown to prove motive, viz where motive is an essential link in a chain of reasoning to prove guilt. In that circumstance, motive must be proved beyond reasonable doubt. R. v. Landells[1] was referred to, together with Plomp v. The Queen[2]; R. v. Murphy[3] and Chamberlain v. The Queen No. 2[4].

175. Dr Freckelton submitted that, in the instant case, integral to the jury's evaluation of it was the difficult issue of the potential motive of the applicant. He accepted that the learned judge had correctly directed the jury that in general it was not necessary for the Crown to establish the existence of a motive but contended that in this matter, motive was a very substantial issue. A "strand", he argued, had become a "link".

178. Counsel stated that at trial the defence had suggested that the fire started with the aromatherapy device and spread to the bed and that this was put forward as an alternative to the Crown's contention that the applicant's wife had been anaesthetised and as a result, in prolonged contact with flame. He contended that Dr Cass had conceded, in essence, that it was possible Ms Taylor had received her burns as a result of short exposure to intense flame.

181. Continuing his submissions, Dr Freckelton argued that the evidence from the expert witnesses (Cass, Barnes and Xydias) was "far from compelling" and "equivocal". He said that Xydias was responsible for the course of the investigation, but he had taken no samples and, accordingly, no analysis had taken place of the aromatherapy burner and the bed. In this setting, so the argument continued, a great deal of significance attached to the "motive" evidence. Motive became so important that it went beyond "a strand in the cable" and became "a link in the chain". This circumstance, counsel concluded, obliged the judge to direct the jury that motive must be proved beyond reasonable doubt, but he had failed to do so. His Honour should have declared that motive was a "integral" part of the Crown case, in circumstances where the Crown Prosecutor had submitted the applicant had acted "horrendously", but there was evidence that he had had a caring relationship with the baby. Accordingly, what was said in Wilson v. The Queen[5], "Evidence of a close affectionate relationship could properly have been used by the jury to incline against the conclusion, which might otherwise have been drawn from the circumstances, that the applicant killed his wife" was apposite. Counsel complained of a failure on the part of the learned judge to make explicit reference to "the applicant's close and apparently devoted relationship to his son", and a lack of emphasis on the importance on the absence of motive on the part of the applicant to commit the offences alleged. These omissions, it was said, created serious prejudice.

184. Dealing with ground 10, counsel submitted that the learned judge gave a "generalised" direction in terms of Edwards v. The Queen[6]. However, he argued, (referring to R. v. Laz[7]), this amounted to an "unacceptably formulaic incanting" and did not do enough to disabuse the jury of the potential reasoning process that figured so large in the Crown case. The real risk was, as I understood him, that the jury may have impermissibly regarded lies told by the applicant about his relationship with Ms Wilkinson as having been uttered out of consciousness of guilt. Had that occurred, it had been brought about by reason of a failure on the part of his Honour "to ensure, to the best of his...ability, that the accused secures a fair trial". Zoneff v. The Queen[8] per Kirby, J.

187. In the circumstances of this case, counsel continued, the judge should have drawn to the attention of the jury that if they considered the applicant had lied over his relationship with Ms Wilkinson, they needed to further consider whether the reason for the lying was consistent with a reason other than consciousness of guilt of the crimes charged. Dr Freckelton proceeded to give examples of such other reasons.

1. Guilt at having started the fire, i.e. having lit the aromatherapy candle and leaving the house - setting in train the fatal events.

2. Guilt at having accidentally killed his child and terribly injuring his wife.

3. Guilt at having been unable to save his son and wife from the fire.

4. Guilt about having planned to leave his wife before the fire.

6. Guilt at having commenced or aspired to commenced a relationship with Ms Wilkinson before the fire.

7. Guilt at having commenced or consolidated a relationship with Ms Wilkinson after the fire.

8. Guilt over his attempts to avoid his obligations under the Family Law Act.

198. Stressing that, at trial, the Crown had not raised alleged lies of the applicant as a credibility issue but rather as consciousness of guilt, counsel addressed four lies referred to by the learned judge in his charge. These were, "a general lie relating to his association with Donna Wilkinson" (1426). An "important lie as the prosecution would have it" which related to the applicant's account to the police about the fire in the bin in the kitchen of the family home not long before 4 October. (As to this, there was a conflict. Ms Taylor's evidence was that she found her husband near the flaming bin holding a fire extinguisher. His account, to the police, was that she was standing near the burning bin and he dealt with the blaze with a fire extinguisher.) The next "lie" related to his account, also to the police, that he used Vicks VapoRub on the morning of 4 October which account his wife disputed. The final "lie" related "compendiously" to the applicant's account of the "bedside incident".

201. Counsel submitted that these four "lies" should not have been regarded as constituting consciousness of guilt and that issue should have been removed from the jury's consideration. His Honour should have told the Crown Prosecutor that this was the situation before he finally addressed the jury and that the "lies" should not be put forward as constituting consciousness of guilt. As an alternative, Dr Freckelton argued that if the "lies" were properly left to the jury, as his Honour did leave them, then his directions touching them were inadequate. The learned judge should have explained the notion of consciousness of guilt in terms of "evidence of post offence" conduct, avoiding "consciousness of guilt" terminology and emphasising that the lie had to be proved beyond reasonable doubt as it was an "indispensable link in the chain of evidence necessary to prove guilt" (Edwards[9], cf R. v. Renzella[10]). The matters from which relevant inferences could be drawn should have been confined, by directions, to those subsequent to the fire. Consciousness of guilt reasoning was not properly open with respect to matters preceding the act charged (the kitchen fire) or with respect to matters "the very essence of the criminal acts charged" (the bedside incidents) and the jury should have been so directed.

204. Dr Freckelton directed particular arguments to what he called the "flaming bin" issue. He submitted that his Honour directed the jury as to this in a "generalised, unhelpful way". Instead, he contended, the jury should have been instructed that any lie involved could only be used against the applicant if they were satisfied it revealed knowledge of his proposed offences or some aspect of them. As to the conflict between the applicant and Ms Taylor over the use of Vicks VapoRub and other matters, counsel stressed that the very essence of the alleged "lies" was the supposed criminal conduct of the applicant, i.e. there is a circular progression of thought - it was a "boots-strap" issue. Counsel cited Laz[11] supra and R. v. Gionfriddo[12] and referred to his Honour's recital of counsel's argument (1430) which, he said, bore out this contention. He added that the jury would have to have decided that the applicant was in fact in the bedroom at the start of the fire before they could find a lie evidencing consciousness of guilt.

207. As to ground 4, Dr Freckelton again referred to the contentions basic to the prosecution case, and submitted that in the circumstances (dispute of his guilt by the applicant and "equivocal" prosecution evidence) the evidence of Dr Cass required a direction that his opinions were predicated upon the assumption that Ms Taylor was burned over some period of time without being conscious of what was taking place. He again referred to Dr Cass' evidence at 864 and 886: "A burn can occur extremely quickly. A flame burn is almost instantaneous".

210. His Honour fell into error, so the argument went, by failing to specifically draw the jury's attention to the limited assumption in which this witness's evidence was pertinent. The direction (1566):

"But, of course, you will understand that they (expert witnesses) do not decide the facts upon which the opinions are based, and any opinion that is expressed in this court by any of those witnesses is no better than the factual foundation upon which it rests."

215. Addressing ground 6, Dr Freckelton accepted that the learned judge did accurately summarise the evidence of the witnesses Barnes and Xydias but, he submitted, his Honour fell into appealable by failing to draw to the jury's attention a series of flaws in that evidence which rendered it of very limited probative value on the issue of how and where the fire commenced. Without such guidance, he argued, there was a real risk that the jury may have misconstrued this expert evidence, giving it much more weight than it warranted.

218. As to ground 8, counsel submitted that the trial of the applicant was attended by defects in the directions of the learned judge with respect to expert evidence, lies and consciousness of guilt. Further, a prejudicial atmosphere to the applicant had been created with respect to the evidence of the applicant's relationship with Ms Wilkinson. Even if this Court, so I understood the argument, did not uphold any other ground and conclude there had been a miscarriage of justice, then, if the Court considered that "deficiencies" in the conduct of the trial had been made out, it was open to it to take the view that the cumulative effect thereof amounted to a miscarriage of justice.

221. Mr Morgan-Payler for the Crown opened with the general observation putting aside ground 8 (unsafe and unsatisfactory) that no exception or redirection was sought after the completion of the charge in regard to any of the grounds now taken.

224. As to ground 9, counsel submitted that his Honour directed the jury sufficiently as to motive. The Crown case was a circumstantial case. The question of the motive (or lack thereof) of the accused to act as alleged was but a piece of circumstantial evidence.

227. There is no general principle, it was submitted, that when a motive is alleged, it is necessary for the Crown to prove that beyond reasonable doubt. The critical consideration is whether a fact sought to be proved as part of a circumstantial case can be categorised as an indispensable link in a chain of reasoning leading to a finding of guilt (R. v. Kotzmann[13], R. v. Landells[14]). That was not this case.

230. Mr Morgan-Payler submitted that his Honour made generous reference to evidence which would throw light on the applicant's relationship to his baby son.

233. Addressing ground 10(a), counsel pointed to a discussion which had occurred after the Crown Prosecutor's final address wherein his Honour identified each of the lies (1251-3). I shall return to this matter later.

236. With respect to ground 10(b) Mr Morgan-Payler submitted that the learned judge had sufficiently related his directions to the facts disclosed by the evidence.

239. As to ground 10(c), counsel reminded the Court that there had been at trial no request for a detailed analysis of possible reasons for the applicant having told lies for reasons other than out of a consciousness of guilt. The forensic decision behind this is easily explained - for the judge to have done so would have emphasised the force of the Crown's argument.

242. Turning specifically to the evidence of the denied illicit relationship, counsel submitted that the Crown case had the capacity to prove guilt without resort to the applicant's relationship with Wilkinson. He emphasised the force in the following directions of his Honour, opining that, by reason thereof it may be that the applicant was given an advantage to which he was not strictly entitled.

"But you must keep clearly in mind that any fact that you regard as being of significance, either in your chain of reasoning about the matter or because it constitutes a significant part of the framework upon which you make your determination, must be established beyond reasonable doubt. If you regard a fact as being of significance so that your reasoning towards the possibility of the guilt of the accused man may be influenced by it, you will understand why that fact has to be established beyond reasonable doubt and cannot be established at some lower level." (1435-6)

"If you consider that a fact is of significance in your determination of the guilt of the accused, then the Crown must establish the presence of that fact beyond reasonable doubt." (1413).)

250. As to ground 10(d), Mr Morgan-Payler argued that the "lie" that Ms Taylor was standing by the burning rubbish bin was capable of establishing that this fire was what he called "a dry run". It was significant, he submitted, that this statement was made as part of the applicant's conduct following on the fire.

253. Addressing ground 10(e) ,counsel submitted that the lies concerning the Vicks VapoRub and the "bedside incident" ought to be regarded as not simply untrue assertions of innocence, but as matters properly to be relied on as indicating that the applicant gave a false account of events to explain Ms Taylor's evidence that she had had difficulty breathing, felt like she was being held down with something over her face, struggling and being conscious of a strong smell.

256. Generally as to this ground, counsel submitted that the lies specified were part of a body of evidence relied on as proving guilt and, accordingly, the directions now contended for by the applicant would not have been appropriate.

259. Addressing ground 4, Mr Morgan-Payler said there was no issue that Nicole Taylor was in the bedroom once the fire began for a short period of time. Rather the issue was whether she would have awoken from normal sleep immediately upon the first sensation of pain or whether she was under the influence of some drug or other substance so as not to waken upon the immediate onset of the pain sensation.

262. His Honour gave the jury a detailed direction in respect of expert evidence. Specific reference was made by his Honour to the arguments of both counsel regarding Cass' evidence (R. v. Kotzmann[15]).

265. A submission was made by defence Counsel during the course of his Honour's charge that there was no factual basis for the opinion expressed by Cass. In particular, it was said, there was no factual foundation for the proposition that Nicole Taylor was lapsing in and out of consciousness or that she was experiencing any imperviousness to pain, facts upon which the opinion was based. I shall later return to his Honour's, and counsel's responses.

268. Cass' opinion was that the account provided by Nicole Taylor, was reminiscent of the administration of ether anaesthesia, namely a person being resistant to it and feeling it being forced upon them. Further, Cass' opinion as to the conduct of Nicole Taylor after she was outside, where she had lapses of consciousness or on her account a patchy memory of events, was "surprisingly similar" to someone emerging from the effects of an ether anaesthetic.

271. Cass, said counsel, was extensively cross-examined regarding his opinion and the evidence, particularly of observations by others of Nicole Taylor. Counsel reminded the Court that there was evidence before the jury:

(a) That the burns suffered by Nicole Taylor were severe and that a person in normal sleep would have awoken from the pain that would have been suffered on infliction of the burns.

(b) That other likely causes of unconsciousness suffered by Nicole Taylor in a fire situation, namely oxygen deprivation or carbon monoxide poisoning were excluded.

(c) That Nicole Taylor's account of events was consistent with both the administration of an agent like ether and the emergence of a person coming out of an ether anaesthetic.

(d) That accounts provided by others who observed Nicole Taylor as to her feelings of pain or the actions she was capable of performing were not inconsistent with a person who was lapsing in and out of consciousness.

277. In the circumstances it was a jury question to determine if the factual basis was proven. His Honour directed the jury accordingly.

280. Mr Morgan-Payler then turned to Ground 6, submitting that his Honour gave a detailed summary of the evidence of both Barnes and Xydias including complete and detailed references to all aspects of cross-examination of them. He also addressed the competing arguments of counsel. His Honour directed the jury as to the use that they could make of expert opinion. His Honour specifically referred to the evidence of Xydias and Barnes in this context, and commented that only a limited amount of assistance could be derived from their tests and that it was necessary for the jury to be careful not to read too much into the tests. His Honour then went on to point out the flaws in the testing procedures. Any perceived flaws in the opinions of both experts were adequately exposed by his Honour in the charge.

283. As to ground 8 Mr Morgan-Payler argued that this was a circumstantial case which involved a body of evidence as distinct from a chain of circumstances. The body of evidence comprised a compelling prosecution case. The evidence disclosed that prior to the fire the applicant had developed a close relationship with Ms Wilkinson, yet throughout the investigation, and at trial through his counsel, the applicant had denied any illicit relationship with her. (Counsel then cited many aspects of the evidence which he claimed would have entitled the jury to utterly reject this denial.)

286. It was clearly open to the jury, so the argument went, to accept the opinions of the witnesses Xydias and Barnes as to the source of the fire and the unlikelihood of an aroma therapy candle having caused this blaze. Further, the jury was entitled to accept the opinion of Xydias that it was unlikely the fire started accidentally (525).

289. It was also clearly open to the jury, given the nature of the injuries suffered by Nicole Taylor and the nature of the fire and the time in which it had been burning, to have accepted the opinion of Dr Cass that the account given by Nicole Taylor was consistent with her having been rendered unconscious by some agent like ether.

292. The applicant stood mute at his trial. His silence, it was submitted, permitted a more ready acceptance of a cogent Crown case (R. v. Neilan[16] and Weissensteiner v. R.[17]).

298. I deal first with grounds 9(a) and (b). In my opinion, it is plain that at trial the prosecution put forward a circumstantial case against the applicant. In its presentation of the case, motive in the applicant was simply treated as a piece of circumstantial evidence. I do not accept that it was in some way elevated to a "link in the chain" in proof of guilt by established shortcomings in the evidence of Crown expert witnesses. In as much as the alleged "concession" of Dr Cass formed a substantial part of the base of the argument of counsel for the applicant on these grounds, it is appropriate to set out the relevant evidence. I refer to portion of the transcript which relates to cross-examination of the witness.

"Q. (To witness): So far as burns are concerned, you were asked to look at the photographs that you'd seen before and indeed on a previous occasion you have said, haven't you, that burns, severe burns can be sustained very, very quickly? A. Yes, indeed. In a flame fire they can be in a matter of seconds. Q. There isn't anything particularly about the burns that you have seen the photographs of which necessarily indicates anything other than that those burns were caused very, very quickly? A. It's not really in my area of expertise to comment on the severity of the burn and the cause of that, but I would conclude from a third degree burn there is a very hot fire indeed or a very long exposure. Q. Or perhaps indeed in part something sticky attaching to the skin. That was not molten plastic? A. It would mean the whole arm must have been immersed in your thinking of a hot plastic burn which can occur and in which case there would have to be a very big exposure to the hot plastic." (864-5)

302. In my opinion, while this evidence was, of course, a matter for the jury to consider, it does not, when examined in the light of the whole of Dr Cass' evidence, amount to the sort of significant concession contended for by counsel. As Mr Morgan-Payler pointed out, it was not disputed at the trial that, once the fire began, Nicole Taylor was in the bedroom for a short period of time. Nor was there any evidence of the whole of her arm being immersed in some sticky substance. As to the witnesses Barnes and Xydias, they stated some clear opinions. As to these, they were extensively cross-examined. They defended their opinions. Some valid criticisms could be, and were, made of their evidence. They were mentioned by the learned judge in his charge. He commented to the jury that "Only a limited amount of assistance can be derived" from the results of the tests. (1407) Neither the tests at Fiskville nor the tests at Abbotsford constituted, his Honour said, "a recreation of the scene at [the Smith's house]". (1407) The jury were also reminded that initially the fire was not "perceived as a suspicious fire" (1409). These, and other like matters, were for the jury to consider. But for my part, I am unable to accept that criticisms advanced at the trial operated so as to reduce (as has been alleged) the status of this expert evidence so as to make it "far from compelling" or "equivocal".

305. In as much as Landells (supra) was cited, I now give the detail thereof. In that case of murder the deceased had been a close friend of the applicant. Evidence at trial disclosed that the applicant gave instructions to the deceased to obtain some drugs. The deceased refused to do this whereupon the applicant assaulted him. After an interval, the applicant gave him a further direction. The deceased again refused. The applicant then obtained an automatic pistol from a ceiling air vent. This contained two bullets, one of which was a dummy. The applicant ejected this and occasioned the live bullet to enter the firing chamber. He then concealed the pistol on his person and walked to another area where the deceased was standing. After uttering a threat of some sort, the applicant pulled the trigger and killed the deceased by a shot to the head. He later described his conduct to the police as "a bluff". He said he had been "possessed" and that what had occurred was an accident. He did not mean to load the gun or kill the deceased. It was argued that the trial judge's charge was defective in that he had not directed the jury that motive (counsel had called it "antagonism") in the applicant, being a "link in the chain" had to be proved beyond reasonable doubt. It was held that it was not such a link but rather a matter of detail, among others, said to throw light on whether the applicant had a murderous intent. At the close of argument on this point, Dr Freckelton did concede, as I understood him, that on reflection that case is a "strands in the cable" rather than a "link in the chain" matter.

308. I now turn to the directions as to motive actually given by his Honour.

"I now turn to the question of motive. In general it is not necessary for the Crown in a criminal trial to establish the existence of a motive, that is a reason or powerful emotion which induced the alleged perpetrator to act as it is claimed that he did. Obviously the presence or absence of any such reason or powerful impulse is a matter that you would consider in arriving at your view of the facts. But you will understand that there may be circumstances in which while it is established beyond reasonable doubt that a particular person engaged in a particular activity, you may not, however, have the slightest idea as to why he or she did so. I do not know if it is true in your lives, as it is true in mine, that there have been occasions when it is terribly difficult for me to understand why I have acted as I did. Sometimes, as I suppose you may have experienced, when one looks at one's own behaviour no conceivable benefit could ever be seen to be derived out of acting in a particular fashion and on occasions I have acted knowing that it was highly unlikely that any benefit would be derived and it could be very much to my detriment. In other words, the absence of a motive or even a sensible reason for behaving in a particular way does not mean that one would not or did not do the act. On other occasions there may have been very good reasons for behaving in a particular fashion but nevertheless you have not done so. You will understand then that you may derive some assistance out of the presence or absence of a motive in assessing the evidence before you, but you are talking about the operation of the human mind and they way in which people will act and behave. Ultimately, the presence or absence of a motive cannot affect your judgment in an situation where you are satisfied beyond reasonable doubt as to the guilt of the accused; nor can it fill up the gap, as it were, for the Crown in a situation where you are not so satisfied." (1402-3) (Emphasis mine.) "As I have indicated, you may derive assistance out of the presence or absence of a motive in assessing the evidence before you, but ultimately the presence or absence of a motive cannot affect your judgment in a situation where you are satisfied beyond reasonable doubt as to the guilt of the accused, nor can the presence of a motive substitute for evidence that the accused man was guilty of the crime alleged against him." (1404) (Emphasis mine.)

312. At trial no exception was taken to these directions, and no further direction was sought.

315. These directions were followed by others. His Honour termed the prosecution case "a case which is dependent on circumstantial evidence" (1433) and spoke of "the effect of what is termed a circumstantial evidence case" (1435). After telling the jurors that each of the elements of a crime under consideration had to be made out beyond reasonable doubt, and that where such an element had to be established by inference, then the facts supporting the inference had to be established in like manner, his Honour said this:

"But you must keep clearly in mind that any fact that you regard as being of significance, either in your chain of reasoning about the matter or because it constitutes a significant part of the framework upon which you make your determination, must be established beyond reasonable doubt. If you regard a fact as being of significance so that your reasoning towards the possibility of the guilt of the accused man may be influenced by it, you will understand why that fact has to be established beyond reasonable doubt and cannot be established at some lower level." (1436)

319. In my opinion, the jurors would have understood the sum total of these directions to mean:

* They were not to elevate motive as a "link in the chain" of proof of guilt. It was there (or not there) as a matter of "assistance".

* Evidence of motive cannot overcome any dearth of necessary proofs.

* If they considered motive as being of "significance" in their reasoning process towards guilt, it had to be established beyond reasonable doubt.

325. In Penney[18] the appellant had been convicted of a charge of attempted murder of his estranged wife. On appeal it was argued that the trial judge had misdirected the jury with respect to the elements of the offence and had confused the issue of intention with motive. A particularly impugned part of the charge was in these terms:

"If there was a happy marriage, it might be easier to conclude there was no intention on the part of the accused to attempt murder." (612)

For the appellant it was argued that this passage confused intention with motive and, if motive be relied upon as a factual basis for an inference of guilt, it must be proved beyond reasonable doubt. Yet the trial judge, having referred to what was, in essence, motive, had not so directed the jury. Callinan, J. with whom all the other members of the court agreed, said this:

"The difficulty for the appellant...is that the passage in the trial judge's summing up, taken in context, shows that his Honour was not in fact dealing with intention or motive as such but was pointing to evidence with respect to the relationship between the appellant his wife upon which they could rely for an ultimate conclusion of guilt beyond reasonable doubt." (612)

My comment on the above is that Penney was not a case where motive was put on a "link in the chain" basis.

332. At the end of argument on ground 9(a), I understood it to be conceded that where a motive is put forward by the prosecution, there is no general principle that it should be proved beyond reasonable doubt. Where it is an indispensable link in a chain of reasoning leading to guilt different considerations apply (R. v. Kotzmann supra). This ground fails.

335. Ground 9(b) is, in my opinion, baseless. It will be recalled that it complains that the learned judge did not expressly identify to the jury those matters which suggested the applicant did not have a motive to kill his child. In fact, the transcript is replete with such identifications. His Honour referred to "video recordings of the baby" (1391). These were produced by the applicant's brother during his evidence. They showed affectionate scenes between the applicant and his son before the fire. The learned judge also reminded the jury that the witness Neist had given evidence that the applicant was happy with his wife's pregnancy; that the witness Hills had said of the applicant that he was "a proud father"; that the witness Hills described that the applicant had photographs of the child on his desk and was "very pleased" with the birth; that the applicant had told the witness Benson that he had a "great deal of love" for his child; that the applicant's brother had been told by him that the child was "his whole life"; that the applicant's sister-in-law found him "besotted" with the infant and that his mother gave evidence that he "adored" his son. Counsel at trial for the applicant never voiced the complaint raised by this ground 9(b). One asks rhetorically, how could he have done so?

338. Ground 10(a) was a complaint of misdirection to a very grave degree. Indeed, during argument, counsel for the applicant came to take up the position that, instead of giving any directions concerning lies constituting evidence of guilt, his Honour should have informed the Crown Prosecutor before final addresses that none of the "four lies" could support such a contention and that he should not even address the jury on the matter. What had happened at the trial was that the learned judge had indicated after the final address of counsel for the prosecution, that he proposed to leave each of the lies to the jury as being capable of indicating a consciousness of guilt. Counsel for the applicant responded "...I understand that it is appropriate in this case that a direction be given in relation to those matters." (1253) In my opinion, for reasons which will appear in the following paragraphs, his Honour's identification of lies indicating a consciousness of guilt does not admit of error and trial counsel was correct in his acquiescence. Ground 10(a) fails.

341. Ground 10(b) raises a complaint which was not voiced at the trial. It is enough to say that in my view his Honour did sufficiently relate his "consciousness of guilt" directions to the facts of the case (see pp. 1426, (the Wilkinson relationship) 1428-9 (the fire in the kitchen), 1429-30 (the Vicks VapoRub) and 1431 ("the bedside incident)). Other references to relevant facts (or counsel's arguments touching them) occurred (see pp. 1431-2; 1454-5; 1473-45; 1509; 1512; 1515; 1538; 1544; 1572-3; 1580; 1582 and 1590). This ground fails.

344. Ground 10(c) complains that the learned judge should have indicated to the jury reasons (other than a consciousness of guilt) why the applicant may have lied about the extent of his relationship with Ms Wilkinson. After telling the jury that it was a matter for them whether they found a statement by the applicant to be untrue and in fact showing a consciousness of criminal responsibility, the learned judge gave the following directions.

"If you are satisfied that no other interpretation is reasonably open about the statement but that it shows such a consciousness of guilt, then you may use the statement as evidence that the accused was, in effect, acknowledging the commission of the crime under consideration. But great care must be taken to ensure that any such inference is properly drawn. People may make statements which are, in fact, untrue in many situations and for a wide variety of motives that are unconnected with any sense of criminal guilt. It may well be that an individual is apprehensive, fearful, inaccurate in recollection or may possess a sense of moral as opposed to criminal responsibility. People can become frightened of being involved in incidents. They may be apprehensive about what may happen to them if they admit to having any knowledge about a particular occurrence. On occasions and from a very early age, people often resort to a simple denial of any knowledge whatever about a matter under investigation." (1424-5)

The experienced trial counsel for the applicant sought no more than this and did not raise, in this connection, the applicant's denial of a sexual relationship with Donna Wilkinson. The reasons for this are not hard to find. At trial, as to the Wilkinson relationship, the applicant's position through his counsel, was that he had consistently told the truth. Counsel would have had no desire to have his Honour give the jury reasons why the contrary had occurred. This ground fails.

349. Ground 10(d) alleges misdirection and is based on the contention that the applicant's alleged lie with respect to the fire in the kitchen was not a material issue. This was so, as I understood counsel, because the incident involving the fire in the bin "preceded the alleged criminal act". Reliance was placed on a passage in Edwards supra at 211:

"And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence..."

The "circumstances and events" are earlier defined as those matters "that are said to indicate it (the lie) constitutes an admission against interest" (210-211).

354. There is no doubt that at the trial the Crown characterised the kitchen fire as some sort of preparatory test for the fatal fire. The effect of the alleged lie was to disassociate the applicant from the ignition of the fire in the kitchen - a fire of some fierceness.. It placed the responsibility for that aspect of the matter squarely on Nicole Taylor. Accordingly, in my opinion, the learned judge correctly decided that it was open to the jury to regard the kitchen fire as (to use the words of Edwards) "some aspect" of the offences charged and to conclude that the "truth of the matter about which he lied" (the ignition of the kitchen fire) would implicate him in the offences. It therefore follows, contrary to what is asserted in this ground, that the applicant's alleged lie was a material issue. It is to be noted that, as to the kitchen fire, counsel's position was that all that stood between the applicant's version and that of his wife was "simply a difference in recollection" about who reached the fire first. He would have been conscious that in the directions set out in paragraph [104], his Honour mentioned that an individual may well be "inaccurate in recollection".

360. Ground 10(e) raised what counsel called "bootstrapping", i.e. "the jury inferring that lies established by their ultimate conclusions were to be used as a consciousness of guilt in respect of the ultimate conclusions". R. v. Laz[19] and R. v. Gionfriddo[20] were referred to. In Laz, the appellant had been convicted on two counts of rape, one digital and one penile. When interviewed by the police he denied any sexual contact with the complainant but admitted digital penetration in evidence he gave at his trial. His grounds of appeal included a ground which complained that alleged lies or false denials should not have been left to the jury as establishing consciousness of guilt. The Court, (Ormiston and Charles, JJ.A. and Vincent, A.J.A.), taking the view that the only relevant lie arose out of the applicant's admission in evidence that he had falsely denied the digital penetration to the police, went on to say:

"Undoubtedly the jury concluded in the end that the applicant was guilty of both rapes and thus they did not believe the denials contained in the two records-of-interview. But, however widely one may use lies established by the evidence at trial, one could not assert properly to the jury, nor could the judge leave it open to them to infer, that lies established by their ultimate conclusions in the case were to be used as a consciousness of guilt of each of the two counts for the purpose of reaching the very same conclusion as to ultimate guilt. That truly would involve a `boot-straps' argument and could not be countenanced upon any interpretation of Edwards' case or any other case." (466)

364. The Court also cited Gionfriddo (supra) a decision of the Court of Criminal Appeal. There, the Court said this:

"The important thing to bear in mind is that a mere false statement or false denial is not enough. The lie must at least relate to a material issue. If it does not, then it is difficult (unless there is accompanying conduct which places a different complexion on the lie) to understand how the lie can be indicative of guilt. Then again, a lie consisting of a bald denial of guilt made in or out of court (as is we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps." (332-3)

It was argued for the applicant that for the jury to find his account of events in the bedroom to be lies, it would be necessary for them to have already found he was present there when the fire started - a finding conclusive of guilt. In my opinion, it was proper for his Honour to conclude that these alleged lies warranted separate consideration as lies evidencing consciousness of guilt and to direct the jury accordingly. In other circumstances, the applicant's account of events in the bedroom might have simply produced a conflict of evidence with that of his wife. But, in this trial, the applicant's account to the police was never squarely put to her. Rather, she was asked some questions which may have related to an aspect of it. Thus, asked about evidence which it was said she had given earlier at the Magistrates' Court, she said that she remembered kicking and fighting immediately before falling out of the side of the bed. She agreed she had also been asked, "You don't remember any other incident of kicking and fighting?" and she had replied, "No." (It will be recalled that the applicant's account to the police involved her grabbing and pulling him, going "crazy", and almost throwing him off the bed so that he flew through the air and landed on the other side, after he placed the Vicks VapoRub on a tissue on her face.) In noting this I am not being critical of counsel; the Crown Prosecutor had already obtained from Nicole Taylor firm evidence that the smell she experienced upon awakening was nothing like the smell of Vicks VapoRub and that it had never been a practice since the birth of the baby for her husband to place him in the bed beside her as he left for work. So, it may well be that counsel thought directly putting other aspects of the applicant's account to his wife would be unproductive. For whatever reason, a mere conflict of evidence between the two was avoided and a direction that the two accounts were such became inappropriate. It is in this setting that his Honour decided, correctly in my view, to give the "consciousness of guilt" directions. The run of the prosecution evidence required the applicant to explain how the baby came to be in the bed; how he came to leave it thus without alerting his wife to its presence and how his wife came to experience the sensations she described (difficulty in breathing - something over her face). Accordingly, the alleged lies were properly regarded as revealing a knowledge of some aspects of the offence and as told because the applicant knew the truth of the matter would implicate him. In my opinion, this was not a "bootstrapping" case. Nor can the applicant draw any support for this contention from his Honour's remarks at 1430. The learned judge was simply repeating the arguments of counsel which he had already directed the jury were not binding on them. (1388)

372. Ground 4 is essentially a complaint of non direction. As is common with expert evidence, that of Dr Cass involved his qualifications and experience, his opinions and the factual basis upon which they were proffered. This last mentioned matter was largely supplied by the evidence of Nicole Taylor and other medical evidence. That her burns were terrible was not in dispute. The issue raised at trial related to the point when she awoke. If she did not awaken when pain, which must have been intense, first eventuated - why was that? Was she under the influence of some drug?

375. His Honour gave very detailed directions touching expert evidence. They included the sentence "an opinion can never be worth more than the evidence and information on which it is based" (1406). Other directions included references to the submissions of both counsel touching expert evidence (1410-1). However, as it happened, during the course of the charge, trial counsel for the applicant sought further jury instructions that "they ought to look carefully at the evidence as to whether or not the factual basis referred to by Dr Cass in particular for [his] opinions...is established on the evidence...in order for his opinion to have any particular validity or bearing on the outcome of their deliberations." (1562-3) The learned judge indicated his preparedness to redirect the jury along the lines that they should only act on opinions within the expertise of the witness and that Dr Cass' evidence was fundamentally dependent on whether or not they accepted that Nicole Taylor suffered no pain. He then asked of trial counsel for the applicant "Would that suffice?" Counsel replied, "Yes, Your Honour, that's exactly what I want." (1565)

378. His Honour redirected as he had promised and then said to the jurors "...but I would ask you now did you understand that that was the way it (expert evidence) had to operate? You did? Thank you very much." (1567)

381. By reason of the foregoing, I have come to conclude this ground is entirely without substance and should fail, but I will add that I am of the opinion that a review of Dr Cass' evidence satisfies me that the factual basis for his expert evidence was appropriately placed before him by the Crown Prosecutor and that it, and his relevant expertise, were properly linked to the opinions he proffered. In her evidence-in-chief, Nicole Taylor described her recollections upon awakening. She found it "difficult to breathe". She felt "like I was being held down". She smelt "a really strong smell". She told the prosecutor that was the extent of her recollections in the bedroom. Cross-examined, she said she had had no awareness of flames or smoke. She described "fighting and kicking". Re-examined, she said she did not remember anything else. She assented to an account of an interview she had with the police which was read to her. In it she said she thought it was pain that woke her up. Examination of Dr Cass" evidence reveals that the evidence of Nicole Taylor as to her recollections of events in the bedroom was fully and accurately put to him. I shall further add that, in as much as it was material to Dr Cass' opinions, (and those of Dr Masterton) it was plainly open to the jury to conclude that Nicole Taylor had no recollection of severe pain. His Honour's observation of "...a high level of pain, a level of pain which Nicole Taylor herself does not recall at all" (1438), was never queried.

384. Now I turn to ground 6. This is again a complaint of non direction. At trial the learned judge was never asked to give the directions it is now asserted he should have given. In my opinion, this ground is untenable for the following reasons.

387. Into his directions touching expert evidence generally, his Honour linked the witnesses Barnes and Xydias (1405). Accordingly, the jurors would have understood how to assess the evidence of these two. After reciting, in summary form, their evidence-in-chief, his Honour devoted no less than six pages of transcript to the cross-examination of Barnes and no less than ten pages to the cross-examination of Xydias. Further, in summarising the final addresses of counsel, the learned judge referred to an alleged conflict between Xydias' evidence and a note by police officer Bona; conflict between the evidence of Xydias and various witnesses who had had experience with tealight candles and criticism of tests performed. Xydias did not know what a relevant flashpoint was. His evidence allowed for the possibility of an accidental fire. His Honour reminded the jurors that defence counsel had directly submitted that they should not rely on the opinions of this witness. He went on to summarise counsel's arguments that Barnes had contradicted himself; that some of his evidence was simply not credible, that he lacked recall in some important information and that he was in conflict with witnesses who gave evidence of anomalous burn experiences. The judge reminded the jury of concessions Barnes made and also of counsel's arguments that he was too quick to express opinions; that his reasoning was palpably inadequate and that his tests were flawed.

393. 118 As to ground 8, it is sufficient to say that, as each of the other grounds has failed, I am satisfied the "deficiencies" alleged in them cannot amount, in aggregate, to a miscarriage of justice. This ground must fail.

396. In my opinion, this application should be dismissed.

401. I agree that this application for leave to appeal against conviction should be dismissed and substantially for the reasons given by the Chief Justice. I add a few words only about the three main issues that were canvassed in argument: motive, consciousness of guilt and expert evidence.

404. As for the first, motive, it was argued that motive was a necessary link in the chain in this case and that accordingly motive had to be proved beyond reasonable doubt before the applicant could be found guilty. This argument should be rejected. The judge told the jury, in common terms, that motive was an incidental and that, being incidental, it was not necessary to be proved; nor, if proved, could it supply a gap if the applicant was not otherwise proved beyond reasonable doubt to be guilty of the crime alleged. He told the jury this more than once[21] and there was no error there. This was not a case like Plomp .v. R.[22] where motive supplied a link: in this case, there was other evidence by which the guilt of the applicant could be demonstrated. The applicant was not disadvantaged when the jury was told that motive was by no means determinative, whether absent or present.

407. As for consciousness of guilt, the judge told counsel, at the conclusion of the prosecutor's address, the four categories of lie which he would put to the jury as consciousness of guilt in line with Edwards v. R.[23]. Applicant's counsel said he accepted that the judge was bound so to do, and the judge did precisely what he had

foreshadowed. It would have to be a very clear case of miscarriage now for this Court to intervene on the basis that consciousness of guilt should never have been put, and in particular should not have been put in relation to the four categories of lie so identified.

411. Not only is that not the case, but in my opinion the judge was perfectly correct. It was argued, in relation to the kitchen bin fire, that Edwards had no application to an event preceding the offence: but it is the lie that must occur after the offence, not the subject matter of the lie. For example, if an alleged offender claims never to have borrowed his father's car without permission, that may relate to events before the alleged offence but, if his taking of the car without permission is germane to the offence, I see no reason why a direction according to Edwards would not be appropriate.

414. Then it was argued that in relation to the administration of ether by holding something over the face of the victim and the "bedside incident" (of her thrashing about and, according to the applicant, hurling him across the bed without wakening), the argument of consciousness of guilt became circular. But again the argument must be rejected. Consciousness of guilt is not circular as an argument if the jury can be satisfied that a lie was told without first determining guilt of the offence charged[24]. It is only if they must determine guilt before being satisfied that a lie was told that, if the telling of the lie is regarded as prompted by consciousness of guilt, the argument becomes circular: if he is guilty, then he lied and if he lied then he is guilty. Obviously such reasoning is impermissible but if the lie can be demonstrated by reference to evidence other than that relating directly to guilt of the offence charged, there is no circularity. And so it was here; for example, the "bedside incident" as related by the applicant was simply implausible.

417. As for expert evidence, the complaint was that the judge had not fully and fairly exposed the weakness in the opinion evidence by demonstrating how far the opinion depended upon facts and what precisely those facts were and to what extent the jury might think them not established. Yet on this a re-direction was sought and when the judge indicated the re-direction to be given, applicant's counsel said that that was exactly what he had in mind. Nor was there error in what the judge said. There is nothing in the complaint now made.

420. This is yet another case in which complaint is made on appeal about the conduct of the trial after no exception was taken below to what was done. It is moreover a case in which the submissions now made are wholly argumentative, in the sense that, if there is anything in any of them, they turn on matters of emphasis and fine analysis. Yet there must be a point at which a trial can be managed or the system will break down. In this case, I am satisfied that the complaints now made are matters in respect of which, if error there was, complaint ought to have been made below so that the matter could be then and there corrected. I am satisfied too, that if there was error below, there was no miscarriage of justice. In a sense that is irrelevant because in my opinion there was no error below.

423. To my mind this is simply another instance of new counsel attempting to dredge from the transcript a point of argument in case, it is hoped, this Court might be disposed to find error. Indeed at one at point we were told that a particular submission was being made "on instructions" and only because of "those instructions". Such an approach is scarcely helpful to the Court. As I conceive it , it is no part of the obligation of counsel to put an argument to an appellate court simply because the client had given instructions that it be put, or because he believes that if he "fires sufficient arrows" one of them may strike home. Rather it is counsel's obligation to address argument which, in his or her own expert assessment of the available material, suggests material error in the proceeding below and which if accepted might legitimately lead the court to the view that a miscarriage has occurred.

429. I also agree that this application for leave to appeal against conviction should be dismissed for the reasons given by the Chief Justice.

[2] [1963] HCA 44; (1963) 110 C.L.R. 234

[3] (1984) 4 N.S.W.L.R. 42

[4] [1984] HCA 7; (1984) 153 C.L.R. 521

[5] (1970) C.L.R. 334 at 337

[6] [1993] HCA 63; (1993) 178 C.L.R. 193

[7] [1998] 1 VR 453 at 466

[8] (2000) HCA 28 at 55

[9] (1970) C.L.R. 334 at 220

[11] [1998] 1 VR 453 at 466

[12] (1990) 50 A. Crim. R. 327 at 33

[13] (No 1) [1999] VSCA 27; [1999] 2 V.R. 123 at [1]- [3] per Phillips, C.J. [16]-[17], [47] per Callaway, J. at [50]-[54] per Batt, J.

[14] [2000] VSCA 84 at [24]

[15] (No 1) [1999] VSCA 27; [1999] 2 V.R. 123 at 135

[17] [1993] HCA 65; (1993) 178 CLR 217 at 227 and 235

[18] [1998] HCA 51; (1998) 72 A.L.J.R. 1316

[19] [1998] 1 V.R. 453 at 466

[20] (1990) 50 A. Crim. R. 327 at 332-3

[22] [1963] HCA 44; (1963) 110 C.L.R. 234.

[23] [1993] HCA 63; (1993) 178 C.L.R. 193.

[24] R. v. Laz [1998] 1 V.R. 453 at 446 and R. v. Gionfriddo (1990) 50 A.Crim.R. 327 at 332-3 (both quoted by the Chief Justice above, at [108] and [109]). See also and compare R. v. Collings [1976] 2 N.Z.L.R. 194 at 116 per McCarthy P., Lucas [1981] Q.B. 720 at 724, R. v. Evans (1985) 38 S.A.S.R. 344 at 350, R. v. Kerim [1988] 1 Qd.R. 426 at 436-7, Mercer v. R. (1993) 67 A.Crim.R. 91 at 98, R. v. Zheng (1995) 83 A.Crim.R. 572 at 576-7, R. Graham [2000] TASSC 153; (2000) 116 A.Crim.R 108 at 111. .