1 The body of Helen Grey was discovered on Friday, 25 November 1994, lying on her side on a couch in her home in Gumbaya Close, Eumemmering. A subsequent autopsy revealed that she had sustained a number of heavy blows to the head.
2 The applicant ("Weiss") was tried before the Supreme Court at Melbourne and on 13 April 2002 was found guilty of her murder.
3 An application for leave to appeal to this court failed. One ground of appeal was upheld but the Court held, for reasons which are considered more fully below, that the proviso to s.568(1) of the Crimes Act applied.
4 Weiss appealed successfully to the High Court, which has remitted the matter for further consideration of the applicability of the proviso. We deal later in this judgment with what the High Court said about the nature of the appellate court's task in considering whether or not to apply the proviso. We begin, however, with an examination of the evidence which was before the trial jury, and of the cases presented respectively by the prosecution and the defence. Not only is this essential to the task we have to perform, but it provides the necessary context for an understanding of the course of the criminal proceeding to this point.
Prosecution evidence[1]
Maxwell Jones
5 Mr Jones is a forensic biologist, whose expertise includes blood stain pattern interpretation. Based upon his investigation of the crime scene, he considered that Helen Grey's assailant had been standing behind the couch on which she was lying when he delivered a series of at least three blows with a cricket bat that was found near her body[2]. Mr Jones examined the bat, observing that it was bloodstained and that the outer cover of its handle was missing.[3]
Brian Gamble
6 Mr Gamble was, at that time, a sergeant of police attached to the Victorian Forensic Science Centre. His examination of the scene disclosed nothing that suggested that there had been any forced entry to the premises[4] or that any of the rooms had been ransacked.
Jean Horstead
7 At the time of Helen Grey's death, Ms Jean Horstead[5] was living in a de facto relationship with Weiss in North Dandenong (a few miles from Gumbaya Close). At about 6.00 p.m. on Thursday, 24 November 1994, two friends, Michael Havers and Carolyn Heenan, came to their home. There had apparently been much gossip in the group of people with whom they associated, and the couple wished to confront Weiss because they thought that it was he who was spreading it.
8 Ms Heenan aggressively confronted Weiss concerning a statement she said had been made to her by Ms Grey, about some sexual activities in which members of the group, including Ms Grey, had allegedly engaged. Ms Heenan had told Weiss previously about what was being circulated and had asked him not to say anything about it to Ms Grey. When the matter was raised, Weiss expressed indignation and, at one point in their conversation, said to Ms Horstead "Set the alarm clock for 4 o'clock because I've got something to do. I'm going to get that bitch." After Mr Havers and Ms Heenan left at approximately 6.30 p.m., Weiss went to soccer training, returning home at about 8.30 p.m.
9 Later that evening, at a time after 9.30 p.m., Weiss and Ms Horstead were watching television when he told her that he was going somewhere. He then left without specifying his destination. He arrived back at the house at about 10.30 p.m., or a little after.
10 When Weiss walked into the lounge room on his return, Ms Horstead noted that he was shaking and very pale. She had not seen him in that state on any prior occasion and asked him what had happened. After a small delay, Weiss responded with words to the effect "I did it. I killed her." She asked him what he meant. He repeated, "I knocked her off. I killed Helen"[6]. She said that she still did not comprehend what Weiss was telling her and repeated her enquiry.
11 Weiss then gave Ms Horstead the following account. He had driven to a main road near the deceased's home, left his car there and walked a short distance to a small park located opposite her house. He saw two of the deceased's friends, Bradley Connor and Marina Matos[7], leaving and waited in a fort-like cubby house in the park to see if they would return. He then went to the front door, knocked on it and Ms Grey answered. He told her that his car had broken down and asked to use her telephone to call Ms Horstead's stepfather to assist him. He was admitted and Ms Grey went and lay down on a couch, indicating to him that she was not feeling very well. Weiss went to the kitchen and pretended to make a phone call.
12 When he finished, Weiss turned around and saw an entertainment unit or cabinet, with a cricket bat nearby. He picked up the bat, approached Helen Grey from behind the couch on which she was lying, and started beating her with it. He stopped when he observed that she was "a mess"; "gurgling and bleeding". At this point in the recounting, Ms Horstead asked Weiss whether Ms Grey could still have been alive at that stage. He answered by saying that he had leaned down and spoken into her ear, telling her to "let go". He said that he took the rubber grip from the bat's handle and put the bat down next to the couch. He then left, closing the door behind him.
13 Weiss told Ms Horstead that, as he was driving home near the Freeway Sports Centre, he threw the rubber grip out of the car. She asked about the whereabouts of the deceased's young son, Steven. Weiss said that he had thought about doing the same thing to the boy, but had decided against it. To Ms Horstead's enquiry concerning whether he might have left his fingerprints in the house, he responded that he had taken care of that possibility by wiping the phone with his socks.
14 The following morning, Weiss suggested to Ms Horstead that they call in at Ms Heenan's and Mr Havers' home, to repair the friendship from the earlier evening and to make everything appear normal. She said that when they arrived, the couple were "fine" with her but they did not acknowledge Weiss, as they were still upset with him. Weiss tried to speak to them about the argument of the night before, but they indicated that they did not want to discuss the matter. After they had been there for 10 to 15 minutes, Ms Matos arrived and told them that Ms Grey had been killed and that she needed to find Ian (referring to the deceased's husband, Ian Grey).
15 At about 3.00 p.m. that afternoon, some detectives attended the home of Ms Horstead and Weiss. They asked him to go with them to answer some questions concerning his whereabouts on the previous night. He agreed and left with them.
16 Ms Horstead said that, when Weiss had left their house the previous evening, he was wearing tracksuit pants, a T-shirt and runners. When she was washing laundry on the Friday afternoon, she noticed a few spots of blood below the knee area of the tracksuit pants. She panicked and burnt them in the backyard. During the following weekend, she told Weiss that she had done this. He said that it had not been necessary, saying that he had already wiped some blood from his shoes[8] and that it was only necessary to wash them.
17 Ms Horstead said that Weiss was distraught after he returned on the Friday evening following his questioning by the police. He indicated that he was concerned that others had told the police that he might have had a motive for killing Ms Grey, and said that he and Ms Horstead would need to "get their stories straight" before they were questioned further, so as to keep him out of gaol. Weiss suggested that they should say that they had spent the previous evening at home together and that he had not gone anywhere. He told her to say that she would have awoken if he had left the house during the night, because she was a light sleeper. The following Tuesday, they went to the Dandenong police station and Ms Horstead made a statement in accordance with the agreed version. When cross-examined by counsel for Weiss, she conceded that she had attempted in her statement to make it seem that others might have had a motive for killing the deceased, including the deceased's estranged husband, Ian Grey.
18 After November 1994, the relationship between Ms Horstead and Weiss deteriorated. On occasions, when they argued, she would remind him that he was a murderer and threaten to call the police[9]. She said that that would stop the argument. But he would respond that, if she did tell the police, he would leave and no-one would find him, but he would know where she and her parents were.
19 Ms Horstead lived with Weiss until they separated in November 1997. In 1998, she went to America, where she met a man named Eddie Keller. She came back to Australia for a while and then returned to the U.S. to live with him.
20 In May 2000, Ms Horstead contacted the Homicide Squad from the U.S. Not long afterwards, Detective Sergeant Stephen Mitchell flew to Georgia, U.S.A. and spoke to her. Arrangements were made for her to talk to Weiss about the murder by telephone.[10] She made a number of untrue statements in the course of the ensuing conversations, in an endeavour to induce Weiss to talk about what had happened[11] and to obtain corroboration for her second statement to the police. She was afraid that, if she was unable to prove that Weiss was the murderer, it would seem suspicious to police that she was the only one who knew details of the killing that had not been made public.
21 Ms Horstead said that she feared for her life and the lives of her children from November 1994 to 1997. It was for this reason that she had initially provided a false alibi for Weiss[12]. During that period, she was looking for an excuse to end the relationship and was relieved when she discovered that Weiss was having an affair. She said that she was frustrated with him because he would not admit this involvement. There was no violence in her relationship with Weiss prior to November 1994, but afterwards there was some pushing and shoving[13]. On occasion, Weiss would scream at her and use expletives. Her relationship with Weiss ended because he was having an affair with someone else.
22 On 16 January 2001, Ms Horstead was granted an indemnity from prosecution by the Director of Public Prosecutions, which protected her against being prosecuted as an accessory after the fact to murder. She understood, however, that this did not give her immunity with respect to any perjury committed in connection with the case.
Eddie Dwayne Keller[14]
23 Mr Keller came to Australia from the U.S. on 2 November 2000[15]. On his arrival, Victoria Police equipped him with a listening device prior to Weiss collecting him from the airport. An audio tape of a conversation between Weiss and Mr Keller was played to the court.[16]
24 In cross-examination, Mr. Keller said that Ms Horstead had first told him, in May 2000, that Weiss had killed Helen Grey. This was contrary to her initial version to him, which was that Weiss had not been involved.
Bradley John Connor[17]
25 On the evening of 24 November 1994, Mr Connor went to Helen Grey's home. When he arrived at about 7.00 p.m., Ms Matos, Ms Grey and Ms Grey's son, Steven, were there. Ms Grey complained that she had a headache. She was lying on the couch. Connor went home at around 9.00 p.m. Ian Grey arrived at Connor's house at 9.30 p.m. and stayed with him until about midnight.
26 In cross-examination, Mr Connor said that Ms Grey's house was a well-known location for buying marijuana, and that she used amphetamine. He had a few "bongs" when he was there on this night. The later arrival of Ian Grey at his home was unexpected and it appeared to him that Mr Grey had had "a few drinks". He consumed more marijuana with Mr Grey. He subsequently became aware that the police suspected Mr Grey of killing his wife. Police told Connor that, if he "covered" for Grey, he would be charged with being an accessory. He understood that Helen Grey had taken out an intervention order against Ian Grey on the Tuesday before her death. He said that the rumour about Helen Grey having sex with a number of men at a motel was not true, as he was present on the occasion on which this was supposed to have occurred.
Marina Matos[18]
27 On the afternoon of 24 November 1994, Ms Matos went to Helen Grey's home and remained there until about 9.30 p.m. In cross-examination, Ms Matos said that she had stayed at the house on a number of occasions at the request of Helen Grey, who told her that she was scared. Ms Matos did not enquire as to the basis of these concerns. On the day before Ms Grey was killed, Ms Matos saw her receive what appeared to be an unwelcome telephone call. Ms Grey told her that the caller was her next door neighbour, "Howie". "Howie" arrived at the deceased's home in a seemingly drunken state on the evening of the murder, while Ms Matos was there, and stayed for a short time. Ms Grey had six "bongs" whilst Ms Matos was at the house on this evening. Ms Matos knew that Ms Grey had a problem with amphetamine use and, two nights earlier, had seen her experience a seizure or fit, apparently due to abuse of this drug. Ms Grey asked Ms Matos to stay at her home on the night of the murder after Mr Connor had left, but she could not do so as she had to work the following morning.
28 Ms Matos said that Ian Grey would often abuse Ms Grey about the custody of their son, her drug use and her alleged promiscuity. This upset Ms Grey. She was also upset about rumours, which she asserted were untrue, that she had participated in group sex. On the night of the murder, Ms Matos saw Ms Grey lying on the couch in the lounge room. She complained of a stomach ache and a headache. Ian Grey rang while Ms Matos was present. She heard Ms Grey tell the caller that she would ring him later when she was feeling better. When she was leaving, Ms Grey came to the door with her. She did not hear the door or the security door lock after her. She said that "there was no secret" about the fact that a cricket bat had been used to kill Ms Grey.
Carolyn Maree Heenan[19]
29 At about 6.00 p.m. on 24 November 1994, Ms Heenan and her partner, Mr Havers, went to Weiss's home. She said that she was angry with Weiss for telling Helen Grey about the rumours involving her. Weiss denied that he had said anything to Ms Grey about those matters. He became very angry and said that he would pay Helen Grey back, and that he would secure a gun from Johan[20] and "pop" the deceased from the corner of her street. Weiss told Ms Horstead to set the alarm at 4 o'clock, because he "had something to do". Ms Heenan and her partner left to go home after about an hour. They arrived home at Doveton at about 7.00 or 7.30 p.m. Ian Grey arrived and stayed for a few hours. He had a "few beers" and left at about 9.30 p.m.
30 In cross-examination, Ms Heenan said that Helen Grey and Ian Grey had had a turbulent relationship. There was a rumour circulating in their group to the effect that Helen Grey had slept with people in a motel. She said that this rumour had reached Helen Grey through Weiss. This was why she (Heenan) was angry with Weiss. She did not take his threats seriously, however, and understood that by the time that they left Weiss's house on the Thursday night, their dispute had been resolved. She said that many people attended at Helen Grey's home to buy marijuana and amphetamine.
Michael Gordon Havers[21]
31 Mr Havers went to Weiss's home on the evening of 24 November 1994 with Ms Heenan. After Ms Heenan accused Weiss of informing Helen Grey about what she (Heenan) had said to him, Weiss became angry and stated that he had "had enough" of Helen Grey. Weiss told Ms Horstead to set the alarm, as he wanted to get up early, because he was going to get Johan's rifle and "pop [Helen Grey] off" from the end of the street.
32 In cross-examination, Mr Havers said that the situation had settled by the time he and Ms Heenan left, and that he took Weiss's threat with "a grain of salt". Ian Grey arrived at their house later that evening, but his memory was not "very good" about what time he left. Mr Havers said that he (Havers) suffered from alcoholism, epilepsy and a head injury, but he thought that Mr Grey and he had watched the Footy Show (which started at 9.27 p.m.) together.
Ian William Grey[22]
33 Mr Grey denied killing his former wife. In cross-examination, he admitted having verbally abused her. He had written her an apologetic letter about his behaviour only a week before the killing. He understood that for some time he was the "prime suspect" for her death. He had been interviewed by the police and accused by them of her murder. He was married to Helen Grey for about nine years, and lived nearby after they separated. She was using drugs for about three years before she was killed, and he had heard "nasty" messages that were left on her answering machine from her drug contacts. He often argued with his wife about money and drinking. There had been a drug raid on her house six weeks before she was killed, in consequence of which he was charged. He said that he was not violent towards his wife, although he had damaged her car on two occasions.
34 He had last lived with his wife about four weeks before her death. They argued and she ejected him from the house. They maintained some contact nevertheless, and he may have threatened her "a couple of weeks" later. He was aware that Weiss had removed a camera that had been left by the drug squad at the deceased's house after the raid earlier mentioned. He said that "Howie" and he had had consensual group sex with Helen Grey, and thought that this was probably the basis for the rumours that had circulated about her behaviour.
35 Mr Grey agreed that an intervention order had been taken out against him by his wife two days before her death. He was disappointed when this occurred, as there had never been an issue about him seeing their son and he had only threatened to take the boy from her because she would not stop abusing drugs.
36 Mr Grey said that, after being at Mr Havers' house on the night of 24 November, he visited Mr Connor at his home. He did not know at what time he had arrived there. From there, he went with Mr Connor to the house of another friend.
Detective Sergeant Stephen Malcolm Mitchell[23]
37 Detective Sergeant Mitchell became involved in the investigation into the death in the year 2000. At that stage, little progress was being made. The position changed in consequence of telephone conversations he had with Ms Horstead, who was in Georgia, U.S.A. On 13 September 2000, Mitchell took a statement from her, in Georgia, and on 28 November 2000 he arrested Weiss at his home[24]. He conducted the first interview with him and, after Weiss had spoken to Detective Sergeant Thomas, the second.[25]
38 Mitchell tendered the record of Weiss's first interview[26]. He said that there was no intention to speak to Weiss again after that interview. Upon the completion of the interview, he had told Weiss that he was going to be charged with murder.
39 In cross-examination, Mitchell said that he discussed with Ms Horstead possible ways in which she might introduce the topic of the deceased's murder into telephone conversations with Weiss which were proposed to be monitored. But he left it to her to decide what precise matters would be discussed.
Detective Sergeant Dean James Thomas[27]
40 Detective Sergeant Thomas was not involved in the investigation into the death of Helen Grey until, on 28 November 2000, he was asked to speak to Weiss[28]. Weiss told Thomas that he had not told the truth in his recorded interview. He wanted to talk with Thomas as he was the only "copper" that had treated him well over the years[29]. Weiss told Thomas that he went to Helen Grey's house and argued with her. In the course of their dispute, Ms Grey pushed him onto the cricket bat which he picked up and used to strike her over the head. Thomas told Weiss that he would have to inform Mitchell about what he had said, and that there would need to be another interview.
The Interview Process - 28 November 2000
41 The first interview commenced at 9.55 a.m. on 28 November 2000, Weiss confirmed that the contents of his statement of 29 November 1994 were true and correct, as far as he could remember. He said he did not know who had killed Helen Grey. When Mitchell informed him that Jean Horstead had made a second statement, in which she alleged that he had confessed to her, Weiss responded that she was lying.
42 Mitchell put to Weiss that, in a conversation with Eddie Keller, he (Weiss) had intimated that he not only knew the identity of Helen Grey's killer, but had been aware a week before her death that she was going to be killed. Mitchell then asked for the name of this person and Weiss replied "No comment". When Mitchell queried this response, Weiss stated: "It's a little bit more involved than that."
43 In response to a number of allegations put to him regarding conversations that he had had with Ms Horstead and Eddie Keller, Weiss said: