R v Spina [2005] VSCA 319

R v Spina [2005] VSCA 319 - VSCA 2005 case summary — Zoe

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1 I have had the advantage of reading in draft the reasons of Ashley, J.A. and for the reasons given by his Honour I agree that the application for leave to appeal against conviction should be dismissed. I desire to add some remarks only as to grounds 3 and proposed ground 6 with respect to the conviction application.

2 The learned trial judge dealt with the relationship evidence on several occasions during the trial. After evidence had been given by a number of witnesses the judge gave a direction to the jury as to the evidence of witnesses concerning conversations with Maria Spina about her husband and his treatment of her. The judge reminded the jury that the prosecutor had said that this evidence could not be used to prove that the applicant actually did or said the things alleged, but was relevant only for the limited purpose of assisting them in determining her state of mind at the relevant time.

3 At the outset of his charge the judge repeated that direction, but also said that the evidence of the relationship between the accused and the two deceased victims "is also relevant to both counts on the issue of self-defence and provocation". When directing the jury on the elements of provocation he directed the jury that they ought consider the history of the relationship and in particular the history of disputes and reconciliations between the couple. The jury would have understood that to be again related to the probable state of mind and actions of Maria Spina.

4 In the course of his summary of evidence in the charge the learned judge introduced the relationship evidence by telling the jury that it provided part of the context in which the jury could view the evidence as to what transpired on the night of the killings. His Honour fully summarised the relationship evidence, and did so under two headings, statements made by the accused to others about his feelings towards his wife and statements made by his wife to others about "her feelings and state of mind shortly prior to the events in question". Included in the summary was the assertions made to others by the deceased that the applicant on a prior occasion or occasions had placed a rope around her neck.

5 His Honour then directed the jury, yet again, that the evidence of witnesses as to what Maria Spina said to them, "about things that were allegedly done and said by the accused", could not be used as evidence that he had in fact said or done any of those things, because it was hearsay. His Honour directed that the evidence of what she had said about her husband was relevant for the limited purpose of its relevance in disclosing her state of mind and bearing on the probability that she would have attacked her husband as he claimed.

6 Several distinct complaints are now made about suggested omissions in the directions as to the use of relationship evidence. In the first place it is said that the judge should have directed the jury that "the commission of the offences could only be proved by the evidence relating to them, not the relationship evidence. Secondly, the jury should have been given a propensity direction, not to reason that by reference to the relationship evidence he was the kind of person who would have committed the offences charged. Thirdly, the judge should have told the jury the evidence was not to be limited to the state of mind of the deceased woman with respect to the question whether she would have been too frightened to have attacked the applicant, but it could establish that she was a bad-tempered, resentful person who was likely to have attacked him.

7 Not one of those suggested directions was sought at the trial. The first direction would be wrong in law, since the jury were entitled to have regard to non-hearsay relationship evidence in deciding whether they had a reasonable doubt as to the defences raised in the case[1]. Such a direction would also have focussed attention on the hostile statements about his wife made by the applicant to others. The third direction was merely a matter of factual argument, a matter appropriately addressed, perhaps, by defence counsel in his address (as it was), but not requiring a direction by the judge. The direction given did not prevent the jury making such use of the evidence. It was on the second suggested direction that attention focussed on appeal.

8 Assuming that the relationship evidence comprised by the statements made to others by Maria Spina was capable of supporting propensity reasoning then it would ordinarily be the case that a propensity direction would be required to be given by the trial judge: R. v. Anderson[2]; R. v. Toki[3]. However, as Chernov, J.A. held in R. v. Mateiasevici[4], such a warning is not always necessary. His Honour cited with approval the following statement of McHugh, J. in BRS v The Queen[5]:

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9 Chernov,J.A. held[6] (stating that his conclusion was in accord with statements of Southwell, A.J.A. in R. v. T[7]) that a case where it might be appropriate that a propensity direction not be given was one "where the warning would prejudice the accused rather than serve his interests, and where in all the circumstances, the omission to give the propensity warning would not result in a miscarriage of justice". In my opinion, this, too, was such a case.

10 Counsel for the accused, as did counsel on the appeal, accepted that the relationship evidence was properly admitted in this trial. Plainly, the nature of the relationship between the couple and also between the applicant and his wife's family, was of relevance: see Wilson v. The Queen[8]; R. v. Anderson[9]. It was not admitted for its impact as propensity evidence; the prosecutor expressly disavowed any use other than for the purpose allowed by the judge in his directions. From the point of view of defence counsel the direction given that the evidence from the wife could not be used, at all, as proof of the truth of any words or actions Maria Spina attributed to her husband was of considerable benefit to the applicant. Were the jury to apply propensity reasoning to that evidence then they would be doing so in express disregard of the judge's very clear and repeated directions that the evidence could only be used as to Maria's state of mind and could not be used as establishing the truth of her assertions. In my opinion, if the jury were to ignore those directions then the more likely misuse of the evidence would have been that it rendered more probable the fact that the applicant assaulted his wife and mother[10], even strangled them, but those propositions were not in dispute.

11 I consider that there was very little likelihood that the jury would have reasoned that by virtue of the relationship evidence attributed to Maria Spina he was the kind of man who might have killed the two people when not acting in self-defence or under provocation. Although the wife's evidence of attempts being made to strangle her with a rope and of his threats to use a gun were undoubtedly harmful to the cause of the applicant, if the jury accepted the direction then they had no evidence of the truth of those allegations, thus the impact of the evidence was confined to its relevance to the state of mind of his wife.

12 In my view the absence of a request for a propensity direction is explained by one or both of the factors that any danger of the jury engaging in propensity reasoning seemed to be non-existent or very small, or else, if that factor was seen to have any significance at all, as reflecting a sensible tactical decision of defence counsel. The direction that had been given would have been undermined by a propensity direction. Having directed the jury that they could not treat the evidence of allegations made to others by Maria Spina as any evidence, at all, of the truth of those allegations, it would have been quite confusing to then direct the jury that they could not use that evidence as demonstrating his propensity to commit the crimes charged. That is so because such propensity reasoning could only have been employed by the jury if they were to disregard the general direction, and were to treat the complaints by Maria Spina as evidence of their truth. In addition, a propensity direction would not only have highlighted the statements attributed to the wife, it might have invited closer attention to the statements attributed to the applicant.

13 The applicant had been very fortunate that the judge did not invite the jury to use the relationship evidence concerning the statements attributed to him by witnesses, when assessing the self-defence and provocation defences. As Mr Tehan conceded, the Crown would have been entitled to rely on those statements for that purpose. It is apparent that the suggested danger of propensity reasoning, which has now received such attention on appeal, was not apparent either to counsel or the judge in the atmosphere of the trial. In assessing whether a direction was required it is important to have regard to the manner in which the trial was conducted by counsel, which gives the clearest indication of the live issues on which directions were required[11]. A decision by experienced counsel not to seek a direction is a pertinent factor for an appeal court in assessing whether a direction was required in order to avoid a miscarriage of justice[12]. The fact that the decision taken by counsel was one based on a rational tactical decision intended to advance the interests of the accused person at trial points strongly to the fact that there had not been a miscarriage of justice[13].

14 As to proposed ground 6, not all cases that, in part, are susceptible to circumstantial reasoning are cases that require a circumstantial evidence direction, particularly when, as here, only a small part of the evidence constitutes circumstantial evidence[14]. This was a case in which the jury were invited to consider a range of evidence which the Crown said ought to have led to satisfaction of guilt beyond reasonable doubt, drawn as an inference from its totality[15]. If it lent itself, in part, to circumstantial evidence reasoning then it did so only in the "strands in a cable" sense. I agree with Ashley, J.A that a circumstantial evidence direction could have added nothing in this case. In a case where the jury had to consider, among other directions, the law relating to self-defence and provocation it would have served no purpose to have added, unnecessarily, another complex direction. The direction was not sought by counsel at trial, and sensibly so. The directions that were given as to proof beyond reasonable doubt and the drawing of inferences were adequate in the circumstances.

15 Finally, I turn to the application for leave to appeal against sentence. Had I been the sentencing judge in this case I might not have imposed the sentences of life imprisonment and fixed the non-parole period of 25 years that his Honour imposed. This was, however, a serious case involving the killing of two people, for which the applicant had shown no real remorse and as to which he did not have a claim to mitigation by virtue of pleas of guilty[16]. In addition, he engaged in the dangerous conduct embraced by the other counts. The sentencing judge, unlike myself, had heard all the evidence and the submissions on sentencing. It is significant that defence counsel, who also heard all the evidence, did not seek to argue that life sentences were not open to the judge in the circumstances.

16 It can not be said that the sentences imposed here were manifestly excessive nor that his Honour's findings on sentencing displayed sentencing error. Notwithstanding the mitigating factors raised on behalf of the applicant, I have

concluded that the sentences were open to the judge to impose and the application for leave to appeal against sentence, both for these reasons and those given by Ashley, J.A., should be dismissed.

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26 The approach that, in considering the merits of a matter newly raised, the way in which the trial was conducted is by no means irrelevant is, in my opinion, pertinent to the disposition of this appeal.

What was in issue at trial; and what was not

27 With respect to Counts 1 and 2 on the presentment, it was not in issue that the applicant had killed the two women. The first of them, Maria Spina, was his wife. The second, Giovanna Persico, was his mother-in-law. Neither was it in issue that he had killed them at his home in Mulgrave sometime between Friday 19 and Sunday 21 October 2001. Neither again was it in issue that he had intended to kill them.[21] What was in issue was whether the Crown had negated defences of self-defence and provocation, concerning each of which matters the learned trial judge gave careful and correct directions to the jury.

28 With respect to Counts 3 and 4, the Crown relied upon events said to have occurred at the applicant's home on the afternoon of Monday 22 October 2001. It alleged that the applicant requested Faustino Persico (conveniently "Faustino"), the brother of Maria Spina and thus the applicant's brother-in-law, to attend the premises on a pretext; and that, once Faustino had arrived, he detained him for approximately four hours by barring his exit and by threatening him with death whilst armed with a loaded shotgun.

29 Concerning the alleged unlawful detention, it was not in dispute that Faustino attended the applicant's home on the afternoon of 22 October in response to the applicant's request, and that he was present there for about four hours. Neither was it in issue that in the course of the afternoon one of the two men had taken hold of a shotgun owned by the applicant. The issues at trial were whether the applicant had detained Faustino; and, if he had, whether he had done so deliberately, intending to compel Faustino to remain at the premises.

30 Concerning the alleged threat to kill, the issues alive at trial were first whether the Crown had proved the making of such a threat; and second, if it had, whether the applicant had acted with a required intent.

The Evidence

31 Having outlined the issues alive at trial, I must say something about the evidence.

Counts 1 and 2

32 Only three people were present at the time of the killings - the two women and the applicant. Of the three, only the applicant was able to give an account of events. He did so in a record of interview, and by a video re-enactment, each of which became part of the evidence in the trial.

33 Evidence pertaining to Counts 1 and 2 was also given by witnesses who saw the applicant and the victims on 19 and/or 20 October, and by witnesses who spoke with the applicant on one or other of 19, 20 and 21 October. Again, evidence was given concerning post-mortem examinations of the two women, a medical examination of the applicant, and findings made on forensic examination of the premises and of items found in the applicant's motor vehicle when it was intercepted in the early hours of Tuesday, 23 October 2001. I pause to say that the bodies of the two victims were also found in the vehicle at that time; and that later I will have occasion to say something about the circumstances in which the police came to intercept the vehicle at that time.

34 Apart from the classes of evidence to which I have so far referred, the Crown relied in respect of Counts 1 and 2 upon three other types of evidence: relationship evidence, evidence of post-offence conduct, and evidence said to evince consciousness of guilt of the crime of murder.

35 The lay evidence was open to more than one interpretation as to when the two women had probably met their death. Mrs Spina was not definitely seen alive after Friday 19 October. Mrs Persico was last seen alive early on the afternoon of Saturday 20 October. Certain witnesses gave evidence of seeing minor injuries to the applicant's face on the Saturday morning. The lay evidence left open the possibility that, contrary to the applicant's account, the women were killed at distinctly different times. In that connection there was not only evidence as to when the two women had last been seen alive, but also evidence, inter alia, of contact surprisingly not made by Mrs Spina with her niece on the Saturday, of a comment made by the applicant as to his wife's whereabouts on the Friday night which did not accord with the fact, and the circumstance that nobody answered the door when a relative attended the home on the Saturday afternoon at about 6.30 p.m. despite there being some indication that the premises were not then empty.

36 If the two women had been killed at distinctly different times, the applicant's intendedly exculpatory account of events would have been the more unbelievable. But even if it be assumed that one was killed soon after the other, the applicant's account, in light of the forensic evidence, was utterly incredible. Putting aside relationship evidence, evidence of post-offence conduct, and conduct said to show consciousness of guilt of the crime of murder, the forensic evidence overwhelmingly demonstrated the applicant's guilt. I should explain why that is so. I go first to the evidence of post-mortem examinations.

37 Mrs Spina's body was examined on 23 October. She had been a heavy woman of short stature. Her body showed an "absolute minimum" of eight separate blows to various parts of the scalp, at least two areas of bruising of the chest region, a number of injuries to the hands, and abrasions to the neck area with bruising to the neck. Internal examination of the neck region showed a fractured larynx, a broken thyroid cartilage, and bruising to the strap muscles deep within the neck. The cause of death was manual neck compression - that is, strangulation. The examining pathologist opined that:

• The scalp wounds were consistent with a number of discrete applications of moderate to severe force by use of a blunt object such as a billiard cue or a length of fibreglass with a rubber handle which was found in the applicant's motor vehicle.

• The distribution and location of the injuries was "totally inconsistent" with the deceased's head having been hit against a wall.

• Injuries to the left forearm and hand, and to the back of the right hand, were more likely to be defensive in character.

• The chest bruising was consistent with the deceased having been punched, or kicked, or having fallen onto an object.

• The abrasions to the neck were consistent with the application of a hand, or possibly a ligature or loop of material.

• Bruising to the neck was consistent with the application of blunt force.

• The damage to the structures of the neck seen on internal examination, including the bruising of muscles deep within the neck, would have required the application of considerable pressure, particularly having regard to the deceased's thick neck; and certainly pressure sustained over time.

• Almost all the injuries were caused "in life".

• In all, the deceased had been beaten multiple times, which may have rendered her unconscious, and then she had been manually strangled. The injuries inflicted by the apparent beating had been insufficient to cause death.

38 Mrs Persico's body was examined by the same surgeon on 23 October. She had been aged 73, had been 162 cms tall and had weighed 76 kgs.

39 There was evidence of injuries to both sides of the face, bruising beneath a laceration to the left frontoparietal region of the scalp, several areas of bruising of the neck, bilateral petechial haemorrhages, haemorrhages of the skin surrounding the eyeballs, and injuries to the hands and wrists.

40 Internal examination showed pre-existing cardiovascular disease, bruising to the front left side of the scalp, fractures of the front left 4th to 6th ribs; and, significantly, a small amount of bruising in the strap muscle on the right side of the neck.

41 The doctor opined that:

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There were contact type bloodstains on the floor of the garage. I comment that it was not suggested by the Crown or the applicant that either or both of the killings had taken place there.

•

The rumpus room connected, although not quite directly, with the garage. At the far end of the rumpus room was a door leading into a bedroom. There were windows in one wall of the rumpus room. Facing towards the bedroom, they were in the wall on the left hand side. They terminated not far from the door leading into the bedroom. They were curtained.

•

In the rumpus room, she observed bloodstains high up on the curtains. There were also numerous bloodstains of the spatter type on the wall in the short distance which separated the window from the door leading into the bedroom, also on the wall to the right of the doorway when facing it from the rumpus room, on the carpet in the vicinity of that wall, and on billiard cues at the end of the room distant from the bedroom. Some of the bloodstains on what it is convenient to call the window wall were low down. An attempt had been made to clean that wall, and the curtain, with water.

•

The spatter bloodstains were most likely explained by a blunt object striking something that was bloodied.

•

The bloodstains on what it is convenient to call the bedroom door wall were, at their highest point, nearly two metres above floor level.

•

In the opinion of the witness, the nature and pattern of the bloodstains which she observed on the window wall were inconsistent with the head of one of the women being struck against the wall.

•

The door to the bedroom opened into the bedroom, rather than into the billiard room. It opened against the continuation of the window wall. On the wall behind the door, when it was in its opened position, were numerous spatter type bloodstains, of the type that can arise from a weapon hitting a bloodied area. The witness opined that they had originated in the rumpus room and had travelled through the gap between the door jamb and the door, then striking the wall. She noted that areas of the door frame had possibly been cleaned. Nonetheless, she observed bloodstains on the door jamb extending from quite close to its top down towards the floor.

•

Further along that wall, that is, travelling away from the rumpus room, there were numerous bloodstains at varying heights on the wall. Some of them were in the order of one and a half metres above floor level. Their disposition indicated, at least in some instances, that they had arced higher, and were descending as they struck the wall; whilst other appeared to have been ascending as they hit the wall, which implied, in effect, a precipitating event at close to floor level. Some at least of those bloodstains may have originated in the rumpus room, and thus have travelled a considerable distance before striking the wall.

•

Two billiard cues were examined. They were in a rack fixed to the end wall of the rumpus room distant from the bedroom. They were apparently bloodstained.

•

On the carpet in the rumpus room, apart from bloodstains already mentioned, there were bloodstains indicative of a body having been dragged out of the room into what was described as the foyer area.

•

Further as to the bedroom, there was a dressing table adjacent to what I have called the bedroom door wall. It had a fabric skirt. Spatter bloodstains were observed on the skirt. Apparently they had originated low down. There were also bloodstains on articles on the top of the dressing table, and indications that bloodstains had been cleaned from the carpet in the vicinity of the table and the bedroom doorway.

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47 The witness also gave evidence of bloodstains observed in the other areas of the home, including the shower and laundry areas. It is unnecessary to refer further to her evidence about those matters.

48 The witness gave evidence about the results of DNA analysis. The spatter stains on the window wall and the curtain matched Mrs Spina's DNA profile. Likewise the stains on the skirting board of that wall, the stains on the bedroom door wall in the rumpus room, the stains on the continuation of the window wall in the bedroom, and the stains on one of the billiard cues. Some of the stains on the skirt of the dressing table matched Mrs Persico's DNA profile, and others matched Mrs Spina's profile.

49 I turn to items taken from the applicant's motor vehicle: a pair of gloves, a pair of shoes, lengths of rope, and an item with a rubber handle and a wood or fibreglass shaft; and to a wooden baton found at the home.

50 The gloves were bloodstained. Some of the stains matched Mrs Persico's DNA profile, as did spatter bloodstains on the shoes. Two of five lengths of rope were bloodstained. Stains on those ropes matched Mrs Persico's DNA profile. No bloodstains were detected either on the implement with the rubber handle, or the wooden baton.

51 The witness reported on DNA analysis of fingernail scrapings taken from each of the women. There was "no indication of any DNA there from any other individual" - although this, said the witness, did not exclude the possibility that the fingernails had come into contact with a second person.

52 It is convenient, next, to refer to the applicant's record of interview. It provided the foundation for his case, which it was for the Crown to negate, that he had acted in self-defence, or under provocation.

53 The gist of the applicant's statement was that he had picked up Mrs Persico on the Saturday at his wife's request. They had been out of the home when his brother in law, Giuseppe, had come at about 6.30 pm. He had gone to bed before the two women. He had been awakened by one of them, probably his wife, punching his head. The two women proceeded to punch, bite, pull and scratch him. They were saying things such as they were going to get him this time. He was in fear of his life. He got out of bed. They chased him around. He started pushing (one of) the women against the wall. He pushed so hard that he did not know what had happened. He smashed the heads of both women into the continuation in the bedroom of what I have called the window wall. He did so to defend himself. He did not intend to kill them. He did not know how many times he hit them. He was "like a Mad Max . . . that mood." Mrs Persico collapsed quickly. He kept going with his wife. The whole incident in the bedroom, beginning with the attack upon him, took place over 15 minutes.

54 The applicant denied hitting the women with weapons. He did not acknowledge strangling either of them.

55 After they were dead, he said, he threw them onto the ground. Later he took their bodies to the garage, cleaned up the blood, and washed his clothes.

56 He moved the bodies into his vehicle on the Monday night, he said. He was taking them to Springvale Cemetery when his vehicle was stopped by the police on the early Tuesday morning - although, as it turned out, he did not have with him any tools to dig a grave.

57 As to the past, he admitted, although his marriage had been "beautiful", that there had been problems with it. He said that he and his wife had hit each other on occasions, but asked who did not have problems these days. He denied that there had been any problems between him, his wife and mother in law on the day of the incident. He particularly blamed Faustino for causing problems in the marriage. Faustino had been "too close to [his] wife."

58 In the course of the interview the applicant drew attention to what he said were "all the scratches here . . . and bruises here and here too."

59 Later on 23 October the applicant participated in a video re-enactment of the fatal incident. At one point in the re-enactment, having denied that he used either billiard cue as a weapon, he may have said that he recalled them falling as he was struggling. The import of this remark was not altogether clear.

60 Towards the close of the re-enactment the applicant twice referred to self-defence, and said that he was not guilty of the murders of which he had been told he would be charged.

61 The forensic evidence showed that each of the women had been beaten, and then strangled. Strangulation required a considerable application of force for a period of a minimum of 15 seconds. Mrs Spina's neck was thick. The extent of necessary force must have been greater in her case. As to strangulation, the applicant's account was silent. Then, as to the beatings, the forensic evidence was damming that Mrs Spina had been struck many blows; and that the attack had occurred, in substantial part at least, in the rumpus room. Yet on the applicant's account, such force as he had inflicted on both women had been carried out in the bedroom; and it had involved striking their heads against the wall. But the forensic evidence was inconsistent with Mrs Spina's injuries, and probably some of Mrs Persico's injuries, having been caused in such a way. Rather, it suggested - particularly in Mrs Spina's case - that the women had been struck with a blunt object. Again, on the applicant's account he had been assaulted by the two women - being punched, scratched and bitten. Yet the injuries observed by the examining physician were trivial; whilst injuries on the hands and lower arms of the women were at least consistent with their being defensive injuries.

62 What I have just said is not an entire account of the tension between the forensic evidence and the applicant's account of events. But it is enough to show how difficult was the applicant's position. To that observation I should add that the applicant's own account of what he had done itself presented him with great difficulties in successfully raising (though it was for the Crown to negate) self-defence or provocation.

63 I noted earlier that the Crown relied, in connection with Counts 1 and 2, upon relationship evidence, evidence of post-offence conduct, and evidence said to show consciousness of guilt of the crime of murder. It is convenient to say something about those aspects of the evidence, not least because directions not given in respect of them are the subject-matter of Grounds 3 and 5 on the conviction appeal.

64 In substance, the relationship evidence:

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72 According to the submission for the applicant, counsel for the Crown had addressed the jury, vis a vis post offence conduct, in an ambiguous way. The jury might have understood the prosecutor to be inviting it to infer consciousness of guilt from such conduct. The judge should have warned the jury against using the evidence in such a way.

73 I go to the Crown's reliance upon particular evidence as revealing consciousness of guilt. The forensic evidence being apparently incompatible with the applicant's account of the events which culminated in the deaths of the two women - that is, as given in the record of interview and by the video re-enactment - the Crown contended that he had lied out of consciousness of guilt of murder in describing - by words and actions - what he had done in the fatal attacks; and where they had taken place.

74 The learned judge gave an Edwards[24] direction in respect of the particular lies which the Crown contended for. He clearly identified them, and described the pertinent principles.

75 Counsel for the applicant did not object to that direction. The prosecutor submitted, however, that the learned judge had not charged the jury fully as to the lies which were relied upon; that is, that the Crown's reliance went beyond the alleged lies to which the judge had drawn attention. After discussion, his Honour decided not to charge the jury further. That decision, by not highlighting an additional alleged lie upon which the Crown relied, was likely favourable to the applicant.

76 It was not suggested on the appeal that his Honour's direction was in any way faulty, as far as it went. Rather, counsel for the applicant submitted that the Crown had relied upon still further lies and post-offence conduct as evidencing consciousness of guilt - that is, lies and conduct other than those in respect of which the judge gave an Edwards direction or decided to give no further direction. Counsel submitted that such reliance should have led his Honour to give an Edwards direction in respect of that other evidence. No such submission, it is implicit in what I have already said, was made at trial.

77 Counsel also submitted, particularly in the context of referring to post-offence conduct and alleged lies, that the judge should have given a circumstantial evidence direction. Of this submission, more later.

Counts 3 and 4

78 I have already described, shortly, the circumstances of the incident which led to the applicant being charged with the false imprisonment of Faustino, and the threat to kill that man. I should say something of the evidence in that connection, of other evidence given by Faustino, and of an asserted "180 degree turnaround" in the applicant's defence.

79 Faustino gave evidence that the applicant called him at about 2 pm on Monday 22 October. The applicant asked him to come to his house that afternoon to fix a telephone answering machine. He went to the applicant's house, arriving at about 3.40 pm. They had a drink, then the applicant left, saying that he had to get something. The applicant in fact returned with a double-barrelled shotgun. There was a plastic bottle over its end, which the applicant described as a silencer. The applicant said, in effect, that his wife and mother in law were out of the house, but would be returning. He told the witness to lie on the floor, so that when the women returned he could show them that he had killed the witness. Over a period of 3 - 4 hours the applicant refused to allow the witness to leave the premises. He pointed the shotgun at the witness. He showed the witness cartridges for the weapon. He permitted the witness to attempt - unsuccessfully of course - to contact his mother (that is, Mrs Persico) by telephone. He described the witness as his hostage. When the witness attempted to leave, at about 6 o'clock, the applicant told him to sit down, or he would let him have it; and not to make him do it, he was serious, and would blow the witness away. On two occasions the applicant made the witness terminate calls. Later, after 7 o'clock, the witness attempted to make a triple 0 call to the police. Eventually the applicant permitted the witness to leave.

80 Faustino was cross-examined, in part, to suggest that he had been the person with the firearm; and that, in effect, he had aimed it at the applicant. He denied those allegations.

81 There was evidence which corroborated Faustino's account of the attempted telephone call to the police, and as well the attempted calls to Mrs Persico and a short-lived call to his own home.

82 The applicant dealt with the events of the Monday afternoon in his record of interview. He confirmed his call to Faustino, and the latter's attendance at his home in response. He said that he had told Faustino that when the women came back he was going to kill them because he was waiting for his dinner. He, the applicant, was "so crazy still" at the time.

83 The applicant alternated between saying that he was angry at Faustino, and angry at what he had done. He said at one point that he had asked Faustino to come to the house in order to tell him what had happened.

84 The applicant also stated that he had said to Faustino that the latter should stay because he, the applicant, was so confused.

85 The applicant agreed that he had told Faustino to lie on the ground and pretend he was dead, so "they" - that is, the women - wouldn't scream at him any more. Faustino, he said, had laughed. He had then told Faustino to lie on the couch, and stop laughing.

86 The applicant agreed that when speaking to Faustino he had the gun (which he said he had obtained from a locked place before Faustino arrived), and was pointing it at the other man. He denied cocking the pin, or pushing the weapon into Faustino's body. He intimated that he had the weapon in case Faustino found out what had happened.

87 He agreed that Faustino had apparently called triple 0 and asked for the police. He had not tried to stop Faustino doing so. They were, he said, both laughing at the time.

88 When Faustino left, he said, they shook hands.

89 Pausing for a moment, it is clear that at no stage in the interview did the applicant suggest that Faustino had found and taken the gun, or had pointed it at him; and yet Faustino, as I noted a few moments ago, was cross-examined to that effect. It was that cross-examination which encouraged the Crown's submission that the "180 degree turnaround" provided a very strong reason why the jury should not accept the applicant's account, particularly concerning the events of the Monday afternoon.

90 Faustino gave other evidence. It was of the relationship kind, and so pertained to Counts 1 and 2. So, he gave evidence that he had heard the applicant threaten Mrs Spina "a lot of times." He had heard the applicant say that he was going to kill her, and "fix up the whole family." He had heard the applicant threaten his wife when he found her on the telephone, speaking to him. In August 2001 she had rung him, saying that the applicant had tried to put a rope around her neck and strangle her. She had told him, not long before her death, that she could not leave the applicant because of threats which he had made about killing members of the family.

91 I should mention three other matters concerning Faustino and/or his evidence. First, he was cross-examined to suggest that Mrs Spina had in fact been quite assertive; that she had "given as good as she got" in the marriage. He was also cross-examined to show that she had made improbable allegations, in effect, that her food was being drugged.

92 Second, Faustino gave evidence that at one stage in the afternoon, when he asked the applicant if he had had an argument with his wife, the applicant had replied:

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111 I do not at all agree with the submission for the applicant that the introduction of Counts 3 and 4 prejudiced the applicant in his defence of Counts 1 and 2. It is true that the defences to the different counts were not the same. But, as I have already said, the applicant's conduct in connection with the events on the Monday afternoon was in fact called in aid by his counsel in supporting the defence of Counts 1 and 2; and on one view it was capable of doing so beyond counsel's address to the jury. Further, the suggestion that the events of Counts 3 and 4 showed murderous intent by the applicant towards the Persico family so as to infect the trial of Counts 1 and 2 was controverted by the fact that Faustino departed unharmed, and after a handshake. Again, the applicant's conduct that afternoon was such as might well have been perceived by the jury as bizarre, and not truly indicative of any particular intention.

112 Sixth, I do not accept the submission that, even if severance would rightly not have been ordered had any application been made, as the trial played out there was a miscarriage of justice because there had not been severance. The evidence on Counts 3 and 4 would have been admissible on Counts 1 and 2 in any event. The applicant had the advantage of a particular comment by the learned trial judge; and as well there was a very clear direction about discrete consideration of the evidence led with respect to the various counts. Further, the applicant's counsel in fact called in aid of his client's defence of Counts 1 and 2, without any objection, or criticism by the trial judge, evidence given by Faustino pertaining to Counts 3 and 4; and an aspect of the applicant's record of interview pertaining to those counts.

Ground 3

113 I have earlier summarised[34] the import of the relationship evidence. I have noted that the learned trial judge instructed the jury to what limited use it was able to use such evidence - both by a warning during the trial, and in his charge. I have noted also the submissions made for the applicant on this appeal concerning that evidence.

114 According to the submissions for the Crown, the relationship evidence was limited in nature. Most of it was hearsay. The judge had specifically directed the jury that such evidence could not be used in proof of earlier violence by the applicant against his wife. It had been unnecessary to give a propensity direction in respect of such evidence. Neither had the evidence of threats and arguments been such as to require a propensity direction. The evidence was of argument going both ways, and of threats made in circumstances that were not taken seriously. Again, the jury had been directed in broader terms than the applicant contended was the case. The relationship evidence had been said by the judge to be relevant to the defences raised on Counts 1 and 2; and not confined to the improbability, as the Crown asserted, that Mrs Spina would have attacked her husband.

115 In my opinion Ground 3, for a number of reasons, has not been made out.

116 First, it is necessary to have regard to the way in which the trial was conducted; for it casts light on a point first agitated on appeal. With respect to Counts 1 and 2, the Crown evidently focused upon the forensic evidence; and how it gave the lie to the applicant's intendedly exculpatory account. That was very much the centrepiece of the prosecutor's address. The relationship evidence was relied upon, but in a limited way. Eames JA observed in argument, and I agree, that the Crown case was run in a way which was advantageous to the applicant - in that no reliance was placed upon the relationship evidence to show the applicant's likely state of mind at the critical time(s). As the applicant's counsel conceded in this Court, some of the relationship evidence would have been admissible against his client for such a purpose.

117 Second, it is another presently significant aspect of the conduct of the trial, no propensity direction was sought by applicant's counsel. The circumstance that no such direction was sought has the appearance of a tactical decision by counsel. Had such a direction been sought and given, it was likely to have underlined, in a practical if not a legal way, the strength of the Crown case. As the trial was run, the jury was given the direction, favourable to the applicant, that it could not use the relationship evidence at all in proof of the truth of what was alleged to have been said or done.

118 Third, two authorities were cited by applicant's counsel in which a propensity warning was given in respect of relationship evidence. Each, on its facts, differed much from the present case. Neither stands for the proposition that a propensity warning must be given in every case, regardless whether it is sought by counsel for the accused.

119 R v Grech[35] was a case involving relationship evidence in the form of evidence of uncharged acts. Callaway, JA said that it had been necessary that the jury be warned that -

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In that case, the relationship evidence was constituted by direct evidence of conduct of the very kind of which the accused stood charged. The need for the warning which his Honour described can readily be appreciated in such a case.

121 Next, in R v Anderson[38] the accused man was charged with the murder of a woman with whom he had had a volatile and sometimes violent relationship over the years. In a record of interview he gave an account of the relationship which was favourable to him. The Crown adduced, over objection, evidence that the accused man had assaulted, threatened and abused the deceased. The evidence largely consisted of accounts of attacks by the accused upon the deceased witnessed by the persons giving evidence; and of significant injuries which the accused was seen to have inflicted upon the deceased.[39] The judge gave a propensity warning. On appeal, this Court was of opinion that the relationship evidence had rightly been admitted; and that, given the propensity warning, there was no danger that the jury had used the relationship evidence impermissibly.[40]

122 One can readily understand why a propensity warning should have been given in that case. The body of evidence which told of observed, actual violence, was, I think, apt to have had a profound impact upon the jury, such as might well have led it to reason by propensity.

123 Fourth, and developing my last proposition, the relationship evidence led in the present case was very different in kind to the relationship evidence led in each of Grech and Anderson. In large part it was hearsay, or hearsay on hearsay. As it pertained to Mrs Spina, it mostly consisted of reports of arguments engaged in by husband and wife, of threats by the husband, and of reports of violence. There was only a little direct evidence which was capable of corroborating the reports of violence; and the impact of the direct evidence depended, in any event, upon hearsay and/or hearsay on hearsay. As regards Mrs Persico, the pertinent evidence consisted wholly of non-specific threats of harm in hearsay form. The learned trial judge emphasized the hearsay character of most of the evidence; and emphasized also that it could not stand as any proof of the fact of what had been allegedly said or done.

124 Fifth, if a propensity warning was to have been given, what form should it have taken? Much of the relationship evidence was of threats, either directed to the applicant's wife or against the Persico family at large. But Counts 1 and 2 alleged violent conduct in fact. There was, in short, a disconnection between the allegedly criminal conduct and much of the conduct in respect of which, it was claimed, a propensity warning should have been given.

125 Sixth, it followed on from the proposition just stated, and harks back to my second proposition, the last thing that the applicant's counsel would have wanted was that the jury should be told, in effect, that even if it was to assume the truth of the allegations of actual violence committed against Mrs Spina, it must not reason from that to a conclusion that he was the type of person who was likely to have murdered both his wife and mother in law.

126 Seventh, I do not agree with the submission of the applicant's counsel that there was a particular need to give a propensity warning because some of the conduct allegedly engaged in took place not long before the killings. The possible impact of the relationship evidence must be considered in the broad. There was a real risk that, if a suitable propensity warning could have been formulated, it would have tended to highlight - probably to the applicant's actual disadvantage - the very matters which counsel at trial would have wished to push into the background.

127 Eighth, I think that there is nothing to counsel's alternative complaint that the judge failed to put to the jury what was said to be the applicant's case as it emerged from the relationship evidence - that is, that Mrs Spina was a bad-tempered, resentful woman trapped in an unhappy marriage, this going to the probability that she had attacked the applicant. No such direction was sought at trial, no doubt for the same sort of reasons that no propensity direction was sought. The more the relationship evidence was highlighted, the more it was likely, in a practical way, to damage the applicant's defence.

128 So to conclude is not to accept the Crown's submission that the judge directed the jury concerning the relationship evidence in broader terms than the applicant contended was the case. It is true that his Honour said that the relationship evidence was relevant to the defences of self-defence and provocation. But I think he was saying no more than that in the case of each defence the necessary starting point was that the women had attacked the applicant; and that the relationship evidence was pertinent as bearing on the probability that Mrs Spina had done so.

129 Ninth, it picks up between propositions already stated, it does not necessarily follow, because a direction was not sought, that failure to give a direction may not reveal error. But the fact that no direction was sought, no objection was taken, and then that a ground of appeal suddenly emerges late in the piece, is not irrelevant to the question whether there was error in fact. In the context of the present ground, I consider that those circumstances tell against there having been error.

Ground 5

130 I have noted already the way in which the Crown sought to rely upon certain of the applicant's post-offence conduct as negating, in effect, the applicant's suggestion that he had acted in self-defence; and also the learned trial judge's summation of the way in which the parties put their respective cases.

131 I have noted also the applicant's submission that the Crown's position concerning those matters was in truth ambiguous, that the jury might have understood the prosecutor to be inviting it to infer consciousness of guilt from such conduct, and that his Honour should have given a warning against reasoning by way of consciousness of guilt in reliance upon those circumstances.

132 I have further noted the Crown's reliance upon particular alleged lies - things said in the record of interview, and conduct on the video re-enactment - as going to consciousness of guilt; his Honour's direction in respect thereof; and the applicant's submission in this Court that the Crown had also relied upon other lies and conduct in respect of which a consciousness of guilt warning should have been given, but was not; the jury having been left "really undirected."

133 In my opinion there was absolutely nothing to the submission that the jury might have misunderstood the Crown's reliance upon identified post-offence conduct as negating self-defence, and have taken it to be an invitation to reason by way of consciousness of guilt. It is the fact that, at one point in her address, the prosecutor referred to that conduct as being "telling." That was a word which she had used in her opening. The judge, as I noted earlier, questioned the way that the Crown was seeking to use the evidence. He referred to being "super conscious about consciousness of guilt reasoning." Once the prosecutor had explained the matter, the judge, having remarked that perhaps he was being "a bit pedantic," asked counsel for the applicant for his response. The response was that "it could probably be dealt with by a remark by your Honour." And indeed it was, in detail, by his Honour explaining the respective submissions of the parties. No exception was taken to what his Honour said in the passages from his charge which I earlier set out.

134 That is enough to dispose of the particular argument. But I would add this: I very much doubt, on a reading of the relevant portion of the prosecutor's address, that there was in truth any ambiguity. I think it clear that she relied upon the particular conduct in the way that she later told the judge was the case. She prefaced her recitation of the particular post-offence conduct by describing it as "telling." When the recitation was complete, she asked these rhetorical questions, and gave this answer:

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140 Immediately thereafter his Honour gave the Edwards direction with respect to particular identified lies - thus highlighting the distinction between the use to which the jury might put the different lies, if lies they were. It is not complained, to reiterate what I said earlier, that the Edwards direction itself was in any way incorrect in principle, or - so far as it pertinently addressed the Crown case - in its identification of particular lies. For that reason, it would be otiose to set it out.

141 As I noted earlier, after discussion with counsel his Honour did not re-direct upon consciousness of guilt in respect of an additional alleged lie - that is, that the applicant had not used a weapon to assault the victims - which the prosecutor had relied upon as evidence of consciousness of guilt. On appeal, failure to so direct was not specifically complained of by applicant's counsel. Rather, this alleged lie should be regarded as falling within the group of lies concerning which, it was claimed, no real direction had been given. But, as I have said, a direction was in fact given about alleged lies other than lies identified in the consciousness of guilt context. Moreover, and again as I earlier pointed out, his Honour's decision not to re-direct about the particular lie was, in the context of the trial, in fact favourable to the applicant.

142 In my opinion, it is speculative - one might say very improbable - given the very clear directions to which I have referred, that the jury may have misused the evidence of lies relied upon the Crown as going to credibility. There is, as I see it, no reasonable possibility, in the circumstances of this particular case, that the judge's failure to direct the jury about a matter in respect of which no direction was sought may have affected the verdict.[42] The gulf between, on the one hand, the forensic evidence and, on the other hand, the applicant's account and re-enactment, on any sensible view of things sealed his conviction on Counts 1 and 2.

Ground 6

143 As I understand it, the threads of the applicant's argument in respect of Ground 6 were as follows:

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145 In my opinion, it was not necessary for the judge to have given a circumstantial evidence direction. Further, for his Honour to have given such a direction would have added nothing, or almost nothing, and may have been unnecessarily confusing in what was a very simple case. Certainly I do not consider that his Honour's failure to give such a direction constitutes appellable error. I should explain those conclusions.

146 First, what remained at the end of the evidence was for the Crown to negate the defences of self-defence and provocation. In respect of each of those defences there was a mixture of aspects which were subjective to the applicant, and aspects which were to be assessed on an objective (or broadly objective) basis. As to the former, the questions in summary form were these: Had the Crown proved that the applicant did not in fact believe that what he had done was necessary to defend himself; and (assuming that it became relevant) had the Crown proved that the applicant had not in fact lost self control in response to provocation, and killed the women during a period of loss of control?

147 Second, in attempted proof of those matters the Crown relied upon evidence of facts from which the jury was asked to infer further facts. Evidence of the former kind fits the description of circumstantial evidence.[43] The circumstance that the further facts had to do with what can be described as states of mind, rather than with proof of the actus reus, does not tell to the contrary.

148 Third, against that background, this was a case in which the evidence relied upon by the Crown for the drawing of the inferences was of the "strands in a cable" or "mass of evidence" kind. It was not one of intermediate facts constituting "indispensable links in a chain of reasoning towards an inference of guilt."[44]

149 Fourth, the Crown case was capable of leading to the relevant inferences in a variety of ways, some but not all of which involved an accumulation of evidence. For example, the jury could have reasoned from the forensic evidence alone, or from the record of interview and the re-enactment alone, that the Crown had negated each of the defences. Alternatively the jury could have put those pieces of evidence together. Alternatively again, it could have relied upon any combination of the forensic evidence, the record of interview and the re-enactment, the relationship evidence, and the alleged lies evidencing consciousness of guilt, to infer the matters going in negation of the defences. But one thing is clear: if the jury reasoned to its ultimate conclusion by reliance on different pieces of evidence, none of those pieces was an indispensable link in the chain.

150 Fifth, it is not the law that every piece of circumstantial evidence relied upon to prove an inference must of itself be proved beyond reasonable doubt. So far as the applicant's submissions directly or implicitly contended to the contrary, they were not sound. The intent which is, statutory exceptions apart, an element of every crime, was used by Dawson J, in the leading judgment in Shepherd to illustrate the point. His Honour said this:

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154 Eighth, bearing in mind that this was, put most favourably for the applicant, a circumstantial evidence case of the "strands in a cable" type, I consider that his Honour's charge was entirely adequate. It protected the applicant's position in a large number of ways. His Honour stressed the onus of proof resting generally on the Crown. He dealt extensively with inferential reasoning in a way which was essentially favourable to the applicant. He particularly related his direction about inferential reasoning to the defence of self-defence. He gave a definite and correct direction about the relationship evidence, which for reasons I have given was favourable to the applicant. He correctly identified and directed the jury as to the use to which the Crown sought to put certain of the post-offence conduct, as to the consciousness of guilt argument which was raised in respect of particular alleged lies, and as to the "credibility" use to which the Crown sought to put other alleged lies. It is the fact that, with respect to the post-offence conduct relied upon by the Crown to negate the defences, his Honour gave no separate direction that such conduct need be established beyond reasonable doubt. But there was no need for such a direction; and in any event the fact of the conduct was not in issue. In all, I consider that for his Honour to have given a specific circumstantial evidence direction would have added little, if anything. Indeed, it is arguable that directions which his Honour gave - in particular, his direction concerning the alleged lies relied upon as evidencing consciousness of guilt - had the effect of imposing a more severe burden on the Crown than a circumstantial evidence direction would have done.

Ground 1

155 This ground was advanced on the basis that the verdicts were unsafe in the sense referred to by Dixon J in Davies & Cody v The King;[50] or on the alternative basis that even if none of the other grounds would succeed on its own, a combination of errors ought lead to an order for a retrial.[51]

156 In light of my conclusions thus far, there is no warrant for the applicant succeeding on this ground.

The Sentence Application

157 The sole ground of application is that the sentences were manifestly excessive.

158 Under cover of that ground, counsel submitted that the sentences on Counts 1 and 2 were manifestly excessive. He advanced the following contentions:

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161 In my opinion both the head sentences imposed on Counts 1 and 2, and the non-parole period which his Honour fixed were within the available range.

162 It is true that the applicant was a man aged nearly 56 when he appeared before the Court, that he had been hard-working, and that he had no criminal history. So also, the judge accepted that some explanation for the killings lay in the applicant's persecutory thoughts; and accepted also that there had in fact been a history of some acrimony between the applicant, his wife and her family over a period of years. Those matters, to greater or lesser extent, ran in the applicant's favour.

163 No argument was addressed to his Honour, however, that life sentences would be inappropriate. Indeed, it is plain, notwithstanding a submission to the contrary by the applicant's counsel in this Court, that counsel below approached the matter by implicitly conceding that life sentences would be appropriate. For the thrust of his submissions, a number of times repeated both in his initial plea and in reply, was simply that it would be appropriate for the learned trial judge to set a non-parole period.

164 I should mention, before going further, the Crown's submissions below as to what sentences should be imposed. They were as follows: life sentences should be imposed on Counts 1 and 2. For that reason alone, there should be concurrency of the sentences passed on Counts 3 and 4. A non-parole period should not be fixed.

165 I do not say that the concession made by the applicant's counsel at trial would preclude this Court from concluding that the sentences imposed were in fact manifestly excessive; any more than the Crown's submission as to what sentences should be imposed would oblige a conclusion that the sentences were within range. I think, however, that the concession made by the applicant's counsel below was not without some significance. For, with his knowledge of the trial, and viewing matters from his client's perspective, he implicitly recognised - as the judge found to be the case - that there were weighty considerations tending in favour of the imposition of life sentences.

166 The learned sentencing judge was satisfied that these were killings attended by grave circumstances. They had involved serious assaults, one upon an essentially helpless victim. Each of the victims had unsuccessfully sought to defend the applicant's attack. The terminal event, in each case, had been strangulation, this having necessitated the application of considerable force for a relatively protracted period.

167 His Honour was also satisfied that -

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"Having regard to the offences committed in this case, the age of Mr Spina and his lack of remorse, it can be strongly argued that there is no indication for fixing a non-parole period, notwithstanding his prior good history. He has, however, moved a little towards acknowledging what he did. He has now acknowledged that he did strangle the two deceased and he has spoken of remorse although showing no emotional response. He has also acknowledged in substance what he did to Faustino Persico. It also needs to be borne in mind that there are public benefits that can flow from the fixing of a non-parole period. One is that the prisoner is likely to be better behaved while in confinement and will have a real incentive to reform and is, therefore, more likely to retain basic self-respect and have some real prospect of rehabilitation. It has been said also that the provision of a time at which a prisoner may be released on parole enables the parole authorities to address issues that can arise on compassionate grounds - for example, where a person has become eligible for release on parole and is terminally ill. It should be emphasised, however, that if a non-parole period is provided, the punishment imposed on the prisoner remains one of imprisonment for life. If at the expiration of any non-parole period, the prisoner's attitude and behaviour are unchanged the prisoner cannot normally expect any prospect of being paroled.

Taking all relevant circumstances into account it seems to me that it would be appropriate to fix a non-parole period of 25 years. It will, in my view, best address relevant sentencing purposes. I am well aware of the fact that fixing such a non-parole period will have the result that Mr Spina will be approximately 80 before he becomes eligible for consideration for parole. Each year of the sentence represents a substantial part of the life that remains to him and, depending on his health, the non-parole period may well prove in any event to be a life sentence. That, however, cannot be avoided. At the same time the possibility of him living beyond his 80th year cannot be discounted and so it cannot be said that that sentence would destroy any reasonable expectation of a useful life after release."

At a glance

Court

Decision date

Before

Source

Judgment (93 paragraphs)

Parties

Cases Cited (6)