R v Williamson [2000] VSCA 5

3. Following the question by the jury in which the jury sought "the definition of a conscious, voluntary and deliberate killing", the judge erred in failing to leave the alternative count of manslaughter for the jury's consideration.

6. The judge erred in failing to provide the jury with appropriate directions and warnings as to the use it might make of the evidence of the events of 25 January 1997.

17. The sole ground of the application for leave to appeal against sentence is that the sentence was manifestly excessive in all the circumstances of the case.

20. It is necessary now to set out in some detail the prosecution case at the trial. Before her death the deceased woman, Mrs. Edith Eberts of 2/36 Brighton Road, Balaclava, had been involved in a relationship with one Robert Mock. Mock in turn had at various times been involved in a relationship with the applicant. Mock provided the only nexus between the applicant and the deceased. Mock gave evidence about his relationship with the applicant, which had commenced after a meeting in 1993. In early 1996 the applicant came to live with Mock in his flat in Windsor, later returning to her family home at 28 Adolphson Avenue, Ringwood, following a dispute regarding another woman. In May or June of that year there was a reconciliation, and Mock went to live with the applicant in Ringwood. This arrangement lasted until just before Christmas 1996 when Mock, without warning, moved out and became a boarder with a female friend, Sandra Lopes, who lived in Inkerman Street, St. Kilda. Mock and Lopes commenced a sexual relationship. Mock had never told the applicant Lopes's address, but he did keep her business card in his wallet.

23. Lopes gave evidence confirming Mock's account of their relationship, and the fact that he kept her card in his wallet. She had a silent telephone number. After Mock moved in, Lopes received nuisance calls on that number. On a couple of occasions a woman asked to speak to Mock and Lopes heard him speak to the woman. Lopes said she came to know the woman's voice as being that of the applicant.

26. Mock gave evidence of events which occurred at Lopes's flat on 25 January 1997. He was in bed with Lopes, and the doors were locked. Lopes got up to go to the bathroom, but came back later and told him that the applicant was in the loungeroom. He got up and saw the applicant talking in the loungeroom to Lopes. The applicant wanted to talk to Mock but he, instead, left by climbing over the back fence and stayed the night with a friend, to avoid being "hassled" by the applicant. The next day he moved into a boarding house, again with a view to avoiding further contact with the applicant. Lopes gave evidence confirming and expanding upon Mock's account. On the night of 25 January she was at home watching videos in bed with Mock, his car being outside. It was a hot night, she said, and she had opened the loungeroom window which faced onto the laneway. Some time after 10 p.m. she visited the outside lavatory and left the back door open. When returning through the lounge she saw running shoes and then a body crouched behind the settee, and saw it was the applicant, who had with her a mobile phone, some cigarettes and a set of keys. After Mock left over the back fence, the applicant refused to leave and Lopes called the police. After the police left, Lopes saw the applicant walk to her red Camira car and later saw her drive around the block a couple of times. The applicant later returned to the house and the two women spoke in the garden. The applicant said she was looking for Mock. After Lopes went inside, the applicant kept on knocking on the door.

29. Senior Constable Phillip Demarte gave evidence of having attended Lopes's house that night. He said the applicant gave her name as "Anne Wilson" and gave Demarte a false address. The applicant told Demarte she had walked in an open door because her ex-boyfriend was there and there was a dispute about the ownership of a car. Demarte did not take any action arising out of these events. Telephone records showed that a call was placed from the mobile telephone service operated by the applicant to the home service operated by Lopes at 4.45 p.m. on 25 January.

32. About a week after 25 January, the applicant returned to Lopes's house. Lopes told her that Mock had left and taken all his belongings, and satisfied the applicant of the truth of this by allowing her to search the house and garden for the man and his possessions. Some time later, Lopes found she was missing a set of keys, including keys to a car belonging to neighbours. She thought she had misplaced the keys. Shortly after 25 January Lopes saw the applicant sitting in a car in the car park of the motel opposite her home.

35. Mock said that on an occasion in the month after 25 January he came out from the boarding house where he was staying and found the applicant waiting in the street outside. She asked him to "come back home". On a later occasion he was drinking with Lopes at the Newmarket Hotel in Inkerman Street, when he was approached by the applicant. She asked him to return to live with her and he agreed. Lopes gave evidence confirming this second encounter dating it at 14 February. Mock remained with the applicant until 27 June 1997 when he moved out and booked into the Kingston Lodge Caravan Park in Carrum Downs.

38. Shirley and Barry Eaton gave evidence that they lived in Gibbs Street, Balaclava (which is near Brighton Road). In late June 1997 they observed a red car in the street outside their home, and heard a woman inside pleading with her male companion, using the words "Please don't leave me". The woman answered the description of the applicant.

41. On 19 July 1997, Mock was drinking with some friends at the Balaclava Hotel, when the applicant approached him and asked him to come back to her. She also continued a dispute over money. He then left the hotel and walked away from it. The applicant drew alongside him in her red Camira and asked him to stop and talk. After a time, he went over to the car, reached in and took out the car keys and threw them over a nearby fence. He then walked on to the apartment of the deceased, with whom he was staying that night. The porch light of the apartment was on. There was knocking on the door and Mock saw through the window that it was the figure of the applicant. Mr. and Mrs. Eaton said that the same night the applicant, who they recognised from the previous encounter, came to their front door and said that her boyfriend had thrown the keys over the fence. Mrs. Eaton said she had also seen the applicant on other occasions alone in her car travelling along Gibbs Street.

44. Mock gave evidence about his relationship with the deceased. He said he had met her in early 1996 during his period apart from the applicant, and a casual relationship developed. He said that during 1996 he would go to the deceased's apartment from time to time and they would have sex. She gave him a key to the back door to her apartment. When he moved back in with the applicant, Mock stopped seeing the deceased and returned her key. After leaving the applicant in June 1997, Mock started seeing the deceased again, and she again gave him a key to her back door. He rarely used the key as the deceased was almost always home and would let him in the front door. She did not give him a set of keys including the front door key. The deceased knew of Mock's relationship with the applicant, but he had not told the applicant about the deceased, nor given her a key to the deceased woman's apartment. Mock denied that there had been any tension or arguments between him and the deceased and denied that he had had anything to do with her disappearance.

47. Telephone records produced in evidence showed that between 15 February 1997 and 14 August 1997 some 48 calls were placed from telephone services operated by the applicant to the service at the home of the deceased.

50. The deceased was described in evidence as independent, but social. She was family orientated, a chain smoker, a neat housekeeper and security conscious. She was a woman about 5' tall, weighing 45 to 50 kilograms. In the week before her disappearance she was described by her daughter as having been in "very good" health and "very happy". She seemed friendly with Mock.

53. While living with the applicant prior to July 1997, Mock agreed to purchase a Datsun motor vehicle, registration number OAC 098 from the applicant's son. When he left her there was an outstanding dispute about whether the car had been properly paid for. On the night of 19 July 1997, Mock was driving this vehicle, but left it parked at the hotel when he left on foot for the home of the deceased. When he went to recover the car the following day, it was gone, and he formed the view that the applicant had taken it. He did not see the car again until well after 12 August 1997. Mock agreed that approximately $300 remained unpaid to the applicant's son for the Datsun. He said that he treated the applicant as having taken that amount and more from his wallet in his jacket in a wardrobe at her home.

56. Mock was cross-examined extensively about matters relating to his character, admitting that he had been a gambler, that he had frequently driven a car while disqualified, and that he had numerous convictions for drink driving and driving while disqualified. He agreed he had once given a false name when apprehended while driving. In 1984 he had been convicted and fined and disqualified from driving and probably had not held a driving licence since then. In 1988 he had pleaded guilty to an offence after punching a lady with whom he had then been living. He denied ever having hit the applicant but agreed that he had pushed her.

59. On Monday 4 August 1997 Mock moved in to stay with the deceased. He said he did so because she made him welcome and because, in the absence of his missing Datsun, her home was convenient for his then current working contract, as a painter on a project in Sandringham. He took to the apartment his work clothes, a "Philishave" electric shaver given to him the previous Christmas by the applicant and other belongings. In the week after 4 August, the deceased spoke to him about telephone calls to her apartment. On 8 August or thereabouts Mock bought another car, a Camira, with the assistance of $300 from the deceased. On 12 August 1997 he rose at 6 a.m. and got ready for work. He was having a cup of coffee in the lounge of the apartment with the deceased when, standing near the heater, he saw the applicant outside the window. She was close to the window and looking in, wearing a pink parka which she commonly wore, jeans and white runners. He turned the light off. After about 10 minutes, the telephone rang. The deceased answered, but there was no conversation and she hung up. There were a number of other calls over the next hour and a half. Just before 7 a.m., Mock rang his employer to say that he would be late for work. Some time after the last telephone call he left the apartment. He told the deceased that he would go home to the Carrum Downs caravan park for a while as he wanted "no more hassles". When he left the apartment he did not see the applicant. He did not see or speak to the deceased again. On the Crown case, his contact with the deceased was the last described by any witness.

62. After work on 12 August Mock went to the Wishing Well Hotel in Carrum Downs, and then went to the caravan park and did some laundry. He made telephone calls to the deceased's number twice around 7 p.m. but got no answer. A number of witnesses identified the applicant's car, or a red car conforming to the description of the applicant's car, in the immediate vicinity of the deceased's apartment in the first fortnight of August 1997.

65. The applicant worked as a cleaner, and evidence was given by Margaret Pinder who in 1997 owned and operated the agency for which the applicant carried out contract cleaning. A time sheet completed by the applicant in respect of the week including 12 August 1997 was tendered in evidence. This document, signed by the applicant, indicated that on 12 August 1997 the applicant worked from "9.30-11" for the client "Douglas", from "12.15-2.15" for the client "Crosbie", and from "3-5" for the client "Steele". The agency did not supervise the contractors to check that each one spent the required time on the job, and was not troubled if contractors switched cleaning times provided that the client was satisfied. No complaint had been received by the agency about the applicant from any of the three clients named on the time sheet for 12 August. It was common for times to be changed by mutual agreement between client and contractor.

68. Caroline Douglas was one of the clients whose home was cleaned by the applicant in 1997. The standard period for the applicant to attend and clean the Douglas home in 1997 was on Tuesdays for three hours between 10 a.m. and 1 p.m. On 12 August the applicant arrived at 8.50 a.m. She had not previous arrived before 9.30 a.m. The applicant was wearing blue jeans, a white shirt and white runners, and looked tired. She said she had had a busy time and had not had much sleep. Douglas left the house at 9.20 a.m. and returned home at 2 p.m. She noted that the cleaning was not up to the usual standard and that the kitchen area had not been mopped as well as usual, but made no complaint.

71. A second house cleaned by the applicant on 12 August belonged to the witnesses Janet Parker and Kenneth Steele. The applicant was engaged to clean fortnightly for two hours on Tuesday afternoons, starting at 3 p.m. On 12 August Parker came home unwell after lunch and went to bed and slept. Steele came home with her, and prior to 3 p.m. took a telephone call from the applicant advising she would be running late. Telephone records indicated this call was placed from the applicant's home in Ringwood at 2.44 p.m. A second call was placed to Steele from the applicant's mobile telephone, near Mitcham at 3.05 p.m. The applicant arrived at approximately 3.30 p.m., and Steele left to attend an appointment. Steele returned to the house at about 4.45 p.m. and Parker arose at around 5 p.m. When the applicant finished cleaning at 5.30 p.m., the three of them spoke in the living room. Steele recalled the applicant saying it was her last job for the day, and that she had been up since 6 a.m. that morning. Parker recalled the applicant saying she had been "working" or "cleaning" since 6 a.m. The accused looked very tired to her and she felt sorry for her.

74. In 1997 the applicant cleaned the home of Melissa Crosby, first on Fridays, and later on Wednesdays. Crosby confirmed by reference to her diary that the applicant did not clean her house on Tuesday 12 August, but that she did attend and clean as usual at approximately 5 p.m. on Wednesday 13 August 1997.

77. Telephone records showed that on 12 August 1997 between 6.16 a.m. and 8.09 a.m., 12 telephone calls were placed from the applicant's mobile telephone to the telephone of the deceased. A final telephone call was recorded placed from the applicant's home telephone to the deceased's telephone at 11.06 p.m. on 14 August 1997.

80. Craig Williamson, the son of the applicant, said in evidence that he had lived with his mother in her Ringwood home in 1997. He said that on the morning of 12 August, his mother was at home when he left for work at 6.45 a.m., and that she was also at home when he returned just after 6 p.m. He said he went to the gym around 7 p.m., at which time he noticed a piece of paper stuck to the door. He returned after 8.15 p.m. and watched television with his mother. When first questioned about the events of 12 August 1997, Williamson had no specific recall of the day or his mother's movements. His recollection was stimulated when he was reminded of an invoice which had been left at the Williamson home by Geoffrey Gates, a motor car repairer, who said he had left it on their door at 7 p.m. Prior to giving evidence at the trial, Williamson had not previously purported to describe his mother's movements on the morning of 12 August 1997.

83. On 13 and 14 August 1997 Mock went to work during the day and afterwards returned to the caravan park. Each night, he telephoned the deceased woman's telephone number without getting through. He went to the apartment on Friday 15 August and, amongst other observations, saw that his Philishave electric shaver was not where he had left it near the lamp in the bedroom.

86. Evidence was given by a friend of the deceased, Ethan Winters, and the deceased's daughters, Andrea Eberts and Nina Nowak, of their going to the deceased's apartment, and finding it in a state in which the deceased would not generally have left it.

89. Police officers then commenced an investigation into the disappearance of the deceased, as a missing person. On the morning of Sunday 17 August, Sergeant Janet Mitchell with other detectives spoke to the applicant in her home. She told the applicant that they were investigating the disappearance of a lady. The applicant described her movements on the previous Tuesday, 12 August, saying she left home at 8.30 a.m. to attend a cleaning job in Box Hill, and then went to a job in Kooyong Road Armadale for two hours. She said she then went shopping and got home around 5 p.m. and did not go to the St. Kilda area. The applicant then described her relationship with Robert Mock. She said he owed her son $500 to $600 on the purchase of the Datsun, and explained her efforts to contact him. She said he owed her money, that he had a bad gambling and drinking problem and did not put a value on life. The applicant told the police officers that Mock had been violent towards her and "sees many women". She said she knew of Mock's girlfriend in St. Kilda, a Jewish woman with plenty of money. Later that day the applicant rang Mitchell and complained about being questioned. She said she did not know the deceased, and asked for a means of contacting Robert Mock. She said she had something to return to him.

92. On 18 August 1997 a police team searched the deceased's apartment. In a large pottery jar in the loungeroom, Sergeant Shane Brundell found a fired .22 calibre cartridge case. After a survey of the apartment provided no indications of blood staining, a forensic scientist, Arthur Tsonis, sprayed surfaces with the chemical Luminol, which produced positive results on a mat situated in front of the bed, and smaller stains between that region and the door. There were no positive findings in the hallway or loungeroom. Further testing, according to Tsonis, later confirmed these stains to be human blood, which DNA testing established as likely to have come from the deceased, and from no-one else.

95. On 20 August Detective David Rae returned to the applicant's home and took a formal statement from her. In that statement she confirmed and expanded upon her previous account. She admitted knowing a "Sandy" of Inkerman Street, St. Kilda, but denied having entered her home. She further denied specific knowledge of the deceased or any harassment of Mock or his girlfriends. She said she was aware of a wealthy Jewish woman with a 17 year old son. She said that on 12 August 1997 she was in bed until 7.45 a.m. She said she reached Caroline Douglas's Box Hill home at 8.55 a.m. and remained there until 12.30 to 1 p.m. Afterwards she said she went to the bank, and paid into her account cheques or cash and also did some shopping. At 3 p.m. she arrived at the Steele home, leaving there at about 5 p.m. She returned home. When shown a picture of the deceased she said she did not know her. A fraud investigation officer of the applicant's bank gave evidence that bank records disclosed no transactions upon the applicant's bank accounts on 12 August 1997.

98. The applicant was arrested on 28 August 1997, and interviewed. During the first interview the applicant said she was not upset by Mock's departure, and that he had been "coming and going" for four years. She described encounters with Sandra Lopes but again denied entering her home. She denied that she was familiar with the area of 2/36 Brighton Road Balaclava, or that she was aware that the deceased had been involved in a relationship with Robert Mock. She denied being outside the flat of the deceased at 6.30 a.m. on 12 August 1997 and denied telephoning her home.

101. On 29 August a police team attended and searched the applicant's home in Adolphson Avenue Ringwood. Police seized a collection of hand-written notes and a set of Reebok ladies AXT running shoes, all found in the applicant's bedroom. The notes, in the form of letters, were identified by Mock as written in the applicant's handwriting. They were addressed to "Dear Bob" and suggested that at the time of writing, the author was greatly distressed at her separation from "Bob" and anxious to reunite with him. The set of Reebok running shoes was later examined by Arthur Tsonis. He described small apparent blood stains on top of one of the shoes. The stains appeared to be water-affected. A test confirmed that the stains were human blood, and there was nothing to suggest that there had been a mixture of the blood or fluid of more than one person. There appeared to be no degradation of the blood, which was an indication of it being younger rather than older. DNA profiling established within the usual probabilities, that the deceased, and no-one else, was likely to be the source of the biological material on the running shoe and the applicant was said to be the likely source of the biological sample taken from the inner sole of the running shoe, which had been taken for a check on the usual wearer's DNA.

104. Police officers also seized the applicant's car that day. On 3 September a search of the car disclosed a set of keys. On 28 November these keys were shown to Sandra Lopes, who identified them as the keys which she had not seen since January. A second set of keys located in the applicant's car was found to open the various locks in Mock's missing Datsun OAC 098.

107. On 25 September 1997, police officers conducted a second search of the deceased's apartment. On this occasion a second spent .22 cartridge was found on the carpet in the loungeroom near the door to the hall. No other markings on the wall or other indications of the discharge of a firearm were found. Senior Constable Raymond Vincent gave evidence of examining the two cartridges. He concluded that both had been fired by the same weapon. He said that almost without exception the direction of ejection from a pistol or rifle is to the right. The force of ejection could vary so that the case could travel up to three metres away. He said that a .22 bullet can cause death and if fired into the head or torso is unlikely to exit from the body.

110. On 23 October 1997 police officers arrested the applicant at her home in relation to the murder of the deceased and the theft of Mock's motor vehicle. A search warrant was also executed. At the premises, a business card identified by Sandra Lopes as having been removed from her door was found. In the applicant's car was found a diary, the entry for 12 August 1997 presenting in sequence the names "Caroline", "Crosbbie", and "Steele", with the name and address "Crosbbie" crossed out, but re-appearing among the entries for 13 August. Detective Matthew Volk found in a drawer in the loungeroom details of a firearms course. Craig Williamson gave evidence that in late 1996 his brother had taken steps towards applying for a firearms licence. The applicant was conveyed for interview, seated in the back of a police car, with Detective Rae seated beside her.

113. Ethan Winters gave evidence about his changing of the locks and replacement of the keys to the deceased woman's apartment, following a bag snatching in June 1997. After 12 August 1997, the set of keys commonly used by the deceased could not be found, though other sets of keys were accounted for. On 2 or 3 December 1997, Timothy Van Berlo was engaged in decommissioning a vehicle formerly used by the Missing Persons Squad, registration number NYW 707. His evidence was that in stripping the vehicle, he found behind the back seat a set of keys, which was then forwarded to the Missing Persons Unit. The keys were not at that time recognised as evidence. On 12 December 1997 Detective Sergeant Anthony Thatcher examined the keys more closely and considered them as potentially connected to the deceased. The principal keys could not be tested in the apartment used by the deceased, because these locks had been changed. One key however operated the lock on the deceased woman's letter box. Another of the keys appeared to match a key to the original locks, retained by Nina Nowak. The key ring tag was one of 200,000 distributed in a 1996 Readers Digest promotion, the deceased being recorded as the recipient of such a tag. NYW 707 had been the registration number of the vehicle in which the applicant was brought to and from the offices of the Missing Persons Squad. Mock had also been brought to an interview in the same vehicle on 4 September 1997, seated in the back seat. But the evidence of the detective accompanying him was that Mock had no opportunity to secrete any material in the car without being seen to do so. Mock denied he had hidden the keys in the seat of a police car.

116. In 1996 and 1997 the applicant also cleaned house for Barbara and Andrew Collins. On 17 March 1998, Barbara Collins found well-hidden in the back of a little-used kitchen drawer, a pouch that she had never seen before. Inside the pouch was a watch, which was identified by a jeweller as a Belami fashion watch distributed by a Japanese company and not available for purchase in Australia. This watch was identified by the deceased's niece, and her husband, as the deceased woman's watch.

119. After the close of the Crown case, counsel for the applicant made an application to the trial judge for the charge of murder to be withdrawn from the jury and to leave to the jury the alternative of manslaughter. Counsel for the applicant submitted that the Crown had failed to adduce evidence to enable the jury to exclude the possibility of death by an unlawful and dangerous act, in particular in light of the absence of evidence of the cause of death of the deceased. The judge refused the application. His Honour held that it was permissible for murderous intent to be inferred from circumstantial evidence even in the absence of a body and an established cause of death. Evidence of the spent cartridges was said to form an appropriate basis for the drawing of an inference of murderous intent and that evidence warranted differentiating between an inference of murderous intent and an inference that death was caused by an unlawful and dangerous act without the requisite murderous intent.

122. In the defence case, the applicant stood mute. Evidence was given by various persons in support of the applicant, but I need only mention Allan Atchison, a forensic scientist with extensive experience in DNA testing of blood and other samples. Atchison accepted as accurate the results of the tests conducted by Tsonis. He did not however accept that the tests showed that the blood was human blood. He said that the material tested for DNA might have been blood, or it might have been a mixture of material containing human cells and perhaps blood from a non-human source. Atchison said that the correct position in respect of the swabbings from the running shoes was that human biological matter was included. Its source might have been cells from inside the mouth, which could be expelled with saliva by a cough or sneeze, or cells transferred in sweat on a hand. The DNA tests did not reveal the source of the cells tested as between blood and saliva and sweat or other sources, or a mixture. A specific test for saliva had not been used. Atchison accepted the conclusion based on the test of the cells on the inside of the running shoe, that the applicant could not be excluded as a contributor to the cells.

125. In the course of discussion in the absence of the jury during the charge, counsel for the applicant made a further application for the judge to direct the jury as to manslaughter. His Honour rejected the submission on the basis that it was not possible to make anything out of manslaughter in the circumstances of the case.

128. During the course of its deliberations, the jury posed a question to the judge requesting the definition of a "conscious, voluntary and deliberate killing" and "done with a murderous intent, or accused had a guilty mind". The judge answered the question, and immediately afterwards counsel for the applicant made a further application for the judge to direct the jury as to manslaughter, on the basis that the jury questions left open the possibility that the jury were satisfied that the applicant killed the deceased, but had some doubt as to whether the applicant did so with the requisite intent for murder. This submission was also rejected, the judge taking the view that there was no appropriate basis on which manslaughter could be left to the jury, because if the jury were not satisfied that the applicant killed the victim by shooting her as contended by the Crown, then there were insufficient facts to warrant an alternative verdict of manslaughter. His Honour also referred to the fact that neither counsel had addressed the jury in relation to manslaughter by the applicant.

131. The verdict of guilty of murder was returned after the jury had been deliberating for over three days.

134. In support of grounds 2 and 3, Mr. Grace, who appeared in this Court for the applicant, argued that the judge erred in refusing to leave the alternative of manslaughter to the jury. He submitted that there was an evidentiary basis for an inference of manslaughter as well as murder, indeed that upon the whole of the circumstantial evidence, the inference that the applicant killed the deceased by an unlawful and dangerous act without the requisite intent for murder was as much open to the jury as the inference that the applicant had the necessary intent. The judge's duty to direct as to manslaughter was not, on this argument, negated by the failure of the applicant to address the jury in relation to manslaughter. The duty to give an appropriate direction as to manslaughter, in these circumstances, was owed both to the accused and Crown alike. Furthermore, the jury's question highlighted the possibility that the jury were satisfied that the applicant killed the deceased, but entertained some doubt as to whether the deceased was killed with the requisite intent for murder.

137. On the question whether there was an evidentiary basis for an inference of manslaughter, Mr. Grace argued that in the way the matter was put at trial by the Crown, there was a clear demarcation between the prosecution and defence cases, for the accused's counsel was contending that the applicant was not at the scene at all. But, he submitted, there was here the possibility that the death of the deceased had occurred after an altercation with the applicant, and that the jury might well not have been satisfied of the necessary murderous intent on the part of the applicant; manslaughter would then have been an appropriate verdict, and should have been put to the jury. Indeed, Mr. Grace went so far as to submit that in any case where there was no direct evidence of the body, or the circumstances of the death of the deceased, manslaughter should be put to the jury. He accepted that the judge's directions in relation to murder had been clear and unexceptionable and that there was enough evidence for the jury to draw the inference that the applicant was present at the deceased's flat. But, so the argument ran, the question remained whether the jury may have had some doubt as to the necessary murderous intent on the part of the applicant and in these circumstances it was the duty of the judge to put manslaughter to the jury.

140. It is well established that if any view of the facts proved in a trial for murder might reasonably reduce the crime from murder to manslaughter, it is the duty of the judge in summing up to the jury to deal adequately with that issue and to direct the jury to consider the alternative verdict; and the fact that the alternative case was not mentioned by defence counsel does not relieve the judge from the duty of doing so: Mancini v. Director of Public Prosecutions;[1] Pemble v. R;[2] Varley v. R;[3] R. v. Schneidas.[4] These and other authorities leading to the same conclusions were recently discussed in this Court in the context of an issue of provocation in R. v. Thorpe.[5] The cases establish that in an appropriate case the judge is obliged to put the issue of manslaughter to the jury no matter what course is followed by the defence, even if, say, a defence such as provocation has been expressly disavowed by the defence_._[6] Another way of expressing the obligation of the Crown and the Court is that it is necessary for the Crown to exclude beyond reasonable doubt all reasonable views of the facts which are consistent with innocence of murder: R. v. Koutsourides.[7] On the other hand, if on no view of the evidence which might reasonably be adopted would the crime amount to manslaughter and not murder, and counsel for the accused has not suggested to the jury the possibility of manslaughter, the judge is under no duty to inform the jury that it is within their power to find manslaughter[8] unless the jury ask a question on the subject, in which case it will usually be the judge's duty to inform the jury that upon an indictment for murder it is within the province of the jury to find a verdict of manslaughter: Ross v. The King;[9] Beavan v. R.;[10] R. v. Markby;[11] R. v. Holden.[12]

143. It follows that grounds 2 and 3 raise three issues for consideration: first, was there a basis in the evidence for a possible verdict of manslaughter; secondly, if there was no such basis, was the judge obliged, after defence counsel in the absence of the jury sought such a direction, to inform the jury that it was within their province to return a verdict of manslaughter; and thirdly, did the jury's question oblige the judge so to inform the jury?

146. For the first of these issues, Mr. Grace relied on R. v. Rice.[13] In that case the accused had had a sexual relationship with the deceased and they arranged to spend a weekend together to patch up differences which had arisen between them. The deceased was not seen alive following this weekend and almost four years later her body was found in a locked 44-gallon drum filled with lime in a shed on a farm owned by an acquaintance of the accused, he having left the drum and other belongings there before travelling to the United States. The accused in the intervening period had told various lies regarding the deceased's movements and there was evidence of other unusual behaviour on his part in this period. An autopsy revealed no natural cause of death and some evidence, not conclusive, suggesting possible strangulation. The accused denied any involvement in the killing of the deceased but did not give evidence. The judge withdrew the charge of murder from the jury and the trial proceeded on manslaughter only. The accused was convicted and appealed. Brooking, J.A. said[14] -

" I would not have withdrawn the case of murder from the jury, having regard to the whole of the evidence, which in my view permitted of a finding that the applicant strangled the victim. But we are not directly concerned with the correctness of that ruling. It is clear that it was open to the jury to convict of manslaughter: it was well open to them to find that the deceased died as a result of unlawful and dangerous violence on the part of the applicant. Although this is not essential to the conclusion just expressed, I repeat that in my view the evidence as a whole warranted a finding of strangulation. But whether it was open to the jury to find that the victim died as a result of a murderous attack - an attack with the necessary specific intent - need not, as I have said, be decided. If the jury were satisfied that there was a murderous attack, that would of course not prevent them from returning a verdict of guilty of manslaughter. Upon the whole of the evidence it was open to the jury to find that the applicant used unlawful and dangerous violence upon, and killed, [the deceased].... His subsequent conduct, including his statements, was not reasonably to be explained on any other basis."

150. In my view the applicant's argument derives no support from the decision in Rice. The facts in that case were most unusual. There was a substantial body of evidence establishing the previous close and sexual relationship between the deceased and the accused, which left open as a possibility that the accused used unlawful and dangerous violence upon and killed the deceased, but that he did so without the necessary specific intent to justify a verdict of murder. In the course of the judgment, Brooking, J.A. examined[15] a number of cases where a victim had disappeared without trace and the accused was convicted of murder, without any suggestion that the evidence could support, or would support only, the inference of conduct amounting to manslaughter.

153. In Weissensteiner v. R.,[16] the owner of a boat and a companion set off on a cruise, taking Weissensteiner with them. They were never seen again and Weissensteiner remained in possession of the boat. He was charged with their murder and theft of the boat. At his trial he gave no evidence. Weissensteiner appealed against the conviction of murder on the ground that the judge had misdirected the jury by telling them they might have regard to his failure to give evidence. As Brooking, J.A. pointed out in Rice,[17] it did not seem to have been suggested at any stage in the proceedings[18] that the jury should have been invited to consider whether the accused was guilty only of manslaughter. If Mr. Grace's submission is correct, many persons convicted of murder have suffered a miscarriage of justice through the alternative of manslaughter not having been put to the jury (although, having regard to the state of the law before Woolmington v. Director of Public Prosecutions,[19] cases decided before 1935 are of little assistance in considering whether an inference of murder as opposed to manslaughter may be drawn).

156. The Crown case was that the applicant killed the deceased on 12 August 1997 by gaining access to the deceased's flat and there shooting her. The issue at trial was whether or not the Crown had proved that it was the applicant who murdered the deceased, defence counsel maintaining that it was not the applicant, who was not at or near the deceased's premises on that day. The Crown contended that the fact that the applicant killed the deceased was established by proof of a strong motive; the presence of the blood of the deceased on a running shoe owned by the applicant; the fact that the applicant had taken Mock's electric razor (which she had given Mock), the keys and a watch from the premises of the deceased; the applicant falsely denying that she had met or spoken to the deceased, or that she had ever been to her premises, or that she had ever telephoned the deceased; the applicant falsely entering details in her time-sheet for 12 August; and her being in the vicinity of the deceased's premises that day and making numerous telephone calls to the deceased on her mobile telephone. The Crown also contended that the killing was shown to be murder, rather than manslaughter by way of unlawful and dangerous act, from the fact that the applicant went to the deceased's flat with a loaded firearm; at least two shots were fired; the deceased's blood was on the bedroom rug; no bullet damage was found elsewhere in the flat, showing that both bullets were fired into the body of the deceased; the blood-stained rug had then been cleaned so that no bloodstains were visible to the eye; the applicant took Mock's electric razor, the deceased's watch and keys from the deceased's premises, and secreted the watch in the Collins's premises and the keys in the police car; and hid the deceased's body in a place where it has never been found.

159. That the applicant killed the deceased was at no stage the subject of challenge in this Court. In my view the facts established pointed to murder, and on no reasonable view of them was a verdict of manslaughter open. My reasons for these conclusions are as follows. The jury could have been in no doubt as to the strength of the applicant's motive for killing the deceased. She was plainly infatuated with Mock and the strength of her obsession had been demonstrated in a variety of ways, such as her invasion of Lopes's premises and the number of telephone calls she had made to the deceased. The jury's conclusion that the applicant killed the deceased, standing unchallenged, shows that the jury accepted that the applicant must have cleaned the deceased's apartment after she had shot her, and that she secreted the body. The evidence was overwhelming that the applicant took from the flat at least the keys and the deceased's watch, as well as Mock's electric razor. That the applicant took keepsakes or souvenirs from the apartment makes it most unlikely that the killing was involuntary. But in my view the greatest significance attaches to the fact that the presence of two cartridge cases in the apartment leads inexorably to the conclusion that at least two bullets were fired into the body of the deceased. The fact that the applicant took a loaded firearm to the deceased's apartment makes it inherently unlikely that she went there solely for the purpose of remonstration or intimidation. That at least two bullets were fired into the deceased's body makes it equally unlikely that the shooting was involuntary or the result of an altercation, or in the absence of murderous intent.

162. Had the facts proved disclosed any reasonable basis upon which a verdict of manslaughter might have been found by a jury it would have been necessary to consider whether the failure to direct the jury as to manslaughter necessarily led to the conclusion that there has been a miscarriage of justice; R. v. Evans and Lewis.[20] A further question would then have arisen whether this decision, and those in which it has been followed[21] can still be regarded as good law, having regard to the line of more recent authority in the High Court, including Pemble and Van Den Hoek, to which reference has already been made in [45]. But in my view the evidence did not disclose any reasonable basis upon which a verdict of manslaughter might have been found, nor any facts a reasonable view of which was consistent with innocence of murder. In this regard Mr Morgan-Payler for the Crown relied on the applicant not having given evidence. Hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence of them when that evidence, if it exists at all, must be within the knowledge of the accused.[22] In the present case I would merely say that manslaughter was not reasonably open on the facts proved in the absence of any account from the applicant (in her records of interview with the police she repeatedly denied any involvement with the deceased or indeed any knowledge of her).

165. It follows that I do not think there was anything in the facts proved at trial which would have obliged the judge to direct the jury that an alternative verdict of manslaughter was open and I turn to the second and third issues under grounds 2 and 3 upon that assumption.

168. In The Laws of Australia, Vol 10, Criminal Offences,[23] under the heading "Verdict of Manslaughter on Charge of Murder", the authors consider the situation where there is "No evidence of manslaughter but the issue is raised". The view is then expressed that -

"Where the jury or ... the accused raises the issue in such a circumstance, the trial judge must direct the jury that they have the power to return a verdict of guilty of manslaughter. However, the trial judge should indicate that there is no relevant evidence of manslaughter and that the duty of the jury is to arrive at a verdict in accordance with the law."

172. In Halsbury's Laws of Australia, Vol. 9, Criminal Law - Homicide, the position is stated somewhat differently[24] -

"On an indictment for murder a jury has the power to return a verdict of manslaughter. If, on the evidence, it is reasonably open to the jury to return a verdict of manslaughter, the trial judge must advise the jury of this option and instruct them as to the evidence of manslaughter. This duty exists even if the issue is not raised, or is expressly disavowed, by the offender. If there is no basis in the evidence to support such a verdict the trial judge has no duty to instruct the jury in relation to manslaughter unless the jury raise the issue. If the issue is raised by the jury the trial judge must advise them of their power to return a verdict of manslaughter, but may comment upon the impropriety of such a course, provided it is not suggested to the jury that such a verdict is beyond their power."

176. The passage quoted from The Laws of Australia might be regarded as supporting the view that a request by the accused or defence counsel, in the absence of the jury, could impose an obligation on the judge to direct the jury as to manslaughter. No authority is cited in The Laws of Australia for the view there expressed, but immediately after the passage quoted reference is made to Packett v. The King[25] where Dixon, J. said -

"Lawyers have no difficulty in apprehending the distinction between, on the one hand, the impropriety of finding without evidence facts amounting to manslaughter, and, on the other hand, the existence of a right to return a verdict of manslaughter although it be a wrong verdict. But it is easy to believe that a jury would not make the distinction and would treat a direction that they ought not to find manslaughter as meaning that they had not power to do so, unless it was very clearly expressed. Yet the jury must not be led to understand that to find a verdict of manslaughter is actually beyond their power."

180. I should not myself have said that the passage quoted (or any other part of the judgement of Dixon, J. in Packett) gives any support to the view that, if the facts established in evidence provide no support for a finding of manslaughter, the judge becomes obliged to direct the jury on manslaughter merely because defence counsel in the absence of the jury asks that this course be followed. The strongest support for any such proposition is, I think, to be found in Gammage v. The Queen[26] where Barwick, C.J. said -

"Out of the circumstance that, though not charged, manslaughter if made out may be found on an indictment of murder, there naturally arises the obligation to tell the jury if they ask, or if the accused requires it, that this alternative verdict is open to them if that is their view of the facts. Failure to so advise them will give rise to a justifiable complaint on the part of the prisoner. But, part of that advice should, in my opinion, be a clear statement of the occasion on which the jury might properly return a verdict of manslaughter. Dixon, J. in Packett v. The King adverted to this matter but some part of his reasons may, in my respectful opinion, be open to serious misconstruction. As his Honour points out, if there be no material capable of forming a basis for a finding of provocation the jury should be so advised. They should in that connection, in my opinion, be told that a verdict of manslaughter could not properly be returned by them for the reason of provocation alone; and if the case be one, as on relatively rare occasions it might be, in which, because of its particular facts and circumstances, only a verdict of murder or one of acquittal is possible on any view of those facts and circumstances, they should be told that there is no basis on which they could properly find manslaughter. Of course, if a jury improperly returns a verdict of manslaughter when there is in fact no material on which such a verdict may properly be returned, the trial judge may request their reconsideration of the matter: but if they persist in the verdict, he must in the end accept it." [Emphasis added.]

"Because it is for the jury to be satisfied of the elements of the murder charged and not for the presiding judge, the possibility of a verdict of manslaughter must almost always be present although there may be cases, of which Mraz v. The Queen[28] is suggested as an example, where there cannot be any reason for such a verdict. I have already indicated how I think such a case should be treated. In such a case it would not be a misdirection, in my opinion, to refuse to inform the jury that they may return a verdict of manslaughter. But in almost every case, if asked, the judge would be bound to tell the jury of the alternative verdict open to them. However, in that event, he should inform them of the basis upon which they may properly return such a verdict. When it becomes necessary thus to direct the jury, the jury should be told that if they are not satisfied to the requisite degree that the crime of murder was committed by the accused but are satisfied that the accused killed the deceased unlawfully, that is to say either without the requisite intent or under provocation (where there is evidence of it), they may return a verdict of manslaughter: but that, if they are satisfied to the requisite degree of all the elements of the crime of murder which are relevant to the facts of the case as they find them, their duty is to convict of murder and that there is in that situation no room for a verdict of manslaughter."

186. In Gammage, the other members of the Court stated their views individually and without stating anywhere their agreement with these passages in the judgment of Barwick, C.J. Furthermore, his Honour's carefully considered views are by no means absolute. In the second passage quoted, Barwick, C.J. accepts that it would not be a misdirection to refuse to direct the jury on manslaughter in one of the "relatively rare occasions" where there "cannot be any reason for such a verdict."

189. I accept that a judge should be slow, by failing to direct the jury on manslaughter when asked to do so, to deprive the jury of the opportunity to bring in a manslaughter verdict. One reason for this caution is the embarrassment defence counsel may legitimately feel in putting the alternative of manslaughter to the jury when the first line of defence is, as here, a total denial of involvement. I would also accept that here defence counsel had good forensic reasons for not putting the alternative of manslaughter in his address to the jury. But must it be accepted that the judge should put manslaughter to the jury, in circumstances where no reasonable view of the facts provides a basis for such a verdict, merely because defence counsel in the absence of the jury requests that such a direction be given?

192. In Packett,[29] Starke, J. said -

"In my opinion it is no duty of the judge to direct a jury that they may find a verdict contrary to the evidence or according to their own caprice. It is, of course, his duty to submit for their consideration facts upon which a finding of self-defence or provocation might be based and the killing justified or reduce to the offence of manslaughter. It would be wholly destructive of the administration of criminal justice if it were thought that a judge was bound to direct the jury that it could act without regard to the law and the facts proved before them."

196. Then, in Beavan v. The Queen,[30] Dixon, C.J., McTiernan, Webb, Fullagar and Taylor, JJ. said -

"Upon an indictment for murder where the proofs suffice to justify a verdict of murder, but on no view of the evidence which might reasonably be adopted, would the crime amount to manslaughter and not murder, and counsel for the prisoner has not suggested to the jury the possibility of their returning a verdict of manslaughter, the judge is under no duty to inform the jury that it is within their power to find a verdict of manslaughter, unless the jury ask a question upon the subject. In that case it will usually be incumbent upon the judge to inform them that upon an indictment for murder it is within the province of a jury to find a verdict of manslaughter, but it is proper for him to add an expression of his opinion that in no view of the evidence which the jury might reasonably take are findings of fact open that fall short of murder but amount to manslaughter."

200. In R. v. Holden,[31] the facts were that a girl aged 6 was found by the doctor who performed the post-mortem examination on her to have died of a stab-wound to the heart. The defence of the person charged with murder was conducted solely on the basis that the Crown had not proved that it was the accused who had killed her. After the jury retired, defence counsel asked for a direction that if the jury was satisfied beyond reasonable doubt that the accused had inflicted the fatal wound, but was not satisfied that the accused had formed the requisite intent, that a verdict of manslaughter would be appropriate. The judge refused to give this direction and the accused was convicted of murder. The Court of Criminal Appeal of New South Wales held that it was not the function of the judge to put unreal or fantastic possibilities to the jury, nor to give the jury the opportunity to be recreant to its oath on the basis that it might improperly acquit of murder and be prepared to compromise on a lesser charge. Accordingly, the judge had not erred in refusing to give the jury a direction on manslaughter, notwithstanding that it was asked for by the defence.

203. In Schneidas, an appeal against a verdict of murder was taken on the grounds, inter alia, that the judge had not put the alternative of manslaughter to the jury. After quoting what was said by Barwick, C.J. in Gammage,[32] Street, C.J., O'Brien, C.J. of Cr.D. and Lee, J. said,[33] that -

"This observation, and others in similar vein to be seen elsewhere in discussions on this topic, are not to be taken to mean that this obligation rests on the trial judge where there is no legitimate basis on the evidence for recognising the possibility of a verdict of manslaughter."

207. In the United Kingdom it is well established that a judge is not obliged to leave a lesser alternative to the jury unless it arises on the way in which the case has been presented to the court: R. v. Fairbanks;[34] R. v. Maxwell.[35] The same view was applied in the context of the murder - manslaughter alternative in R. v. Kearney.[36] In Fazal Mohammed v. The State (Trinidad and Tobago),[37] the refusal of the trial judge to leave manslaughter as an alternative, when this was inconsistent with the defence case, was upheld on appeal. Lord Griffiths said[38] -

"The issue the jury had to decide was whether or not the defendant was the man who attacked the deceased. If the jury found that he was the attacker a verdict of murder was inevitable. For the judge to have suggested to the jury that they should consider the possibility that such a wound could have been unlawfully inflicted without intention to cause serious harm would have been to introduce a wholly unrealistic and totally unnecessary confusion into the clear-cut decision that the jury had to make, which was, whether the prosecution had proved that the defendant was the attacker. The judge was right to leave murder to the jury without the alternative of manslaughter."

211. Fairbanks, Kearney and Fazal Mohammed, are cited with apparent approval in Archbold, Criminal Pleading, Evidence and Practice, 1999.[39] The view that the trial judge is under no obligation to put the manslaughter alternative to the jury when it is not a possible verdict on the evidence, even when requested to do so by the defence, is accepted in Gillies, Criminal Law,[40] and, I think, in Bourke's Criminal Law, Victoria.[41] See also R. v. Alfredo Galli.[42]

214. In my view, the passage quoted from para. 199 of Vol.10 of The Laws of Australia, if it is to be taken as suggesting that a request by the defence in the absence of the jury is sufficient to oblige the trial judge to direct the jury on manslaughter, in circumstances where there is no evidence of manslaughter, is, with respect, not a correct statement of the law.

217. I turn then to the third issue. The jury retired to consider its verdict at 12.05 p.m. on Tuesday 16 March. The judge gave some short redirections and at 12.20 p.m. on 17 March the jury asked a question as to the evidence of Messrs Tsonis and Atchison. Then on 18 March at 4.40 p.m., the jury asked a question in the following terms -

"The jury would like to have the definition of (a), a conscious voluntary and deliberate killing and (b), done with a murderous intent, or accused had a guilty mind. If we can have that clarified, Your Honour, please."

His Honour then gave a detailed answer to the jury's question, about which no complaint is now made.

222. Mr. Grace's submission was that this question obliged the judge to put the alternative of manslaughter. It showed, he said, that if the jury were not satisfied of murderous intent, their only option was to acquit, an option they may have thought was unconscionable. I do not agree. The question was plainly not a request by the jury in relation to their entitlement to bring in a verdict of manslaughter. The decisions[43] in which it has been held that a judge must tell the jury, in response to a jury question, of its right to bring in a verdict of manslaughter are, I think, stating that to do otherwise would involve the judge in stating what is not correct in law and in denying the jury a power it possesses by statute in most Australian jurisdictions.

225. In the present case, the jury's question was, I think, a request which showed that the jury understood the principal dispute but which indicated a wish to know what precisely were the elements of murder on which it had to be satisfied beyond reasonable doubt. I do not think that this amounted to a question as to whether manslaughter was open, or as to the power to return a different verdict.

228. It follows that for all these reasons in my view no error has been established in relation to the judge's refusal to direct the jury in relation to manslaughter and accordingly grounds 2 and 3 must fail.

231. Ground 7, that the verdict was unsafe and unsatisfactory was argued shortly by Mr. Grace, on two bases. First it was submitted that it was not possible for the jury to exclude beyond reasonable doubt the hypothesis that the applicant was guilty only of committing an unlawful and dangerous act, and therefore should have been found guilty only of manslaughter. Secondly, the failure to leave manslaughter to the jury had the consequence, so it was said, that the jury were left with the false impression that, if they were satisfied only of an unlawful killing, but not of the murderous intent, they had no alternative but to acquit the applicant of all wrongdoing. In leaving the jury no alternative, they were forced to convict the accused of murder.

234. In my view there is nothing in these arguments, and my stated reasons for rejecting grounds 2 and 3 lead inevitably to the conclusion that ground 7 also should be rejected.

237. Ground 6 involved a submission that the judge failed to give the jury adequate directions and warnings as to the use it might make of the events of 25 January 1997. The Crown had been permitted to introduce evidence of the applicant entering the flat belonging to Sandra Lopes and taking from the flat Lopes's keys (which were later found by the police in the applicant's possession). Evidence of the applicant's alleged conduct, which was described by Mr. Grace as "discreditable" rather than criminal, was tendered to demonstrate the applicant's jealous and possessive relationship with Mock, which was, of course, relevant to questions of motive.

240. Mr. Grace accepted that the evidence was admissible but claimed that because it showed at least discreditable conduct, it therefore amounted to evidence of a propensity on the part of the applicant to engage in such behaviour. It was submitted that since the finding of the keys in the applicant's possession was used by the Crown as a crucial link in the chain of circumstantial evidence, the judge was obliged to address the aspect of relationship and to warn against improper propensity reasoning. The submission was made that the judge did not tell the jury that they had to be satisfied, to the appropriate standard, that the uncharged acts occurred, did not explain the context or relate the uncharged acts to the context, and did not adequately instruct the jury that they should not infer from this evidence that the applicant was a person of bad character with a propensity to commit crimes.

243. In considering this submission, I note that the jury had been warned from the outset of the trial by the judge that in a criminal trial the standard of proof is proof beyond reasonable doubt. The judge's charge lasted into the 20th day of the trial. On the 13th day, his Honour gave the jury a lengthy explanation of the reasons why evidence of uncharged acts was being admitted, and their relevance to matters such as the credibility of Mock, the relationship of the applicant to Mock and the applicant's motivation. His Honour explained that there were ways in which this evidence could not be used and warned the jury that it could not say that because the applicant was or might have been involved in other uncharged acts, it could use that as evidence that she was guilty of the acts with which she was charged. Then, during the charge, the judge again dealt with uncharged acts and repeated the warning against inappropriate use of this evidence.

246. The applicant was represented at the trial by competent counsel of long experience in criminal trials. When his Honour dealt with these uncharged acts on the 13th day, no objection was made by counsel to anything that had been said by the judge. At the end of his Honour's charge, seven hearing days later, a number of exceptions were taken, but no exception was made to this aspect of the charge.

249. In these circumstances, had I held any reservations as to the adequacy of the directions and warnings given by the judge as to the relevance or use which might be made of the uncharged acts, Mr. Grace would have found it a difficult matter indeed to persuade me that the issue should now be permitted to be raised on appeal; and I refer to the stern warnings given in this context in R. v. Wright.[44] I am not to be taken by these comments to be criticizing the conduct of counsel at the trial, because it is clear that his view must, at the time, have been that no injustice or error had taken place both in the judge's earlier warning, as well as during the charge.[45]

252. In my view, however, there is no substance in this submission. The judge's warnings can have left the jury in no doubt that they could not use the evidence in question as part of a chain of reasoning based on propensity. His Honour told the jury that the fact that the applicant had entered Lopes's premises was disputed, and explained the relevance of this conduct in terms such as the following -

"Relative to the conduct in relation to Sandra Lopes, there were issues like: what was the nature of the accused's relationship and attitude towards Robert Mock and his other women, ... in 1997? What motivates the accused to act, as you might find that she did, towards Mock and his other women?"

Later his Honour referred to the manner in which the Crown had advanced the evidence of 25 January and said that it was "helping to make more understandable the matters of the accused's obsession and the relentlessness of her pursuits". In my view his Honour adequately explained the relevance of these incidents to facts in issue, and their context, and made quite clear to the jury that propensity reasoning could not be pursued.[46]

257. Mr. Morgan-Payler submitted, and I accept, that to particularize the individual pieces of evidence might well not have been thought to have been in the interests of the applicant. I am satisfied that no miscarriage of justice occurred by reason of the judge's warnings and directions in relation to the uncharged acts, and ground 7 therefore also fails.

260. For these reasons I would dismiss the application for leave to appeal against conviction.

263. The application in relation to sentence was argued very shortly by Mr. Grace and solely on the ground that the sentence is manifestly excessive. It is sufficient to say that a sentence of imprisonment for 18 years, with a non-parole period of 13 years fixed, could not, in the circumstances of this offence, on any view be regarded as beyond range. It was, I think, a merciful sentence and this application also should be dismissed.

267. I agree that the applications for leave to appeal against conviction and sentence should be dismissed for the reasons stated by Charles, J.A.

[1] [1942] A.C. 1 at 7, per Viscount Simon, L.C.

[2] [1971] HCA 20; (1971) 124 C.L.R. 107, at 117-118, per Barwick, C.J.

[3] (1976) 51 A.L.J.R. 243, at 245.

[4] [1981] 2 N.S.W.L.R. 713, at 715-716.

[5] [1998] VSCA 13; [1999] 1 V.R. 326 at 330-331.

[6] See e.g. Van Den Hoek v. R [1986] HCA 76; (1986) 161 C.L.R. 158 at 161-163.

[7] (1982) 7 A.Crim.R. 237 per Fullagar, J. (with whom Young, C.J. and Starke, J. agreed) at 241.

[8] Crimes Act 1958 s.421(1)(a).

[9] [1922] HCA 4; (1922) 30 C.L.R. 246 at 254.

[10] [1954] HCA 41; (1954) 92 C.L.R. 660 at 662.

[11] [1978] HCA 29; (1978) 140 C.L.R. 108 at 114.

[12] [1974] 2 N.S.W.L.R. 548.

[16] [1993] HCA 65; (1993) 178 C.L.R. 217.

[18] See also the report of the proceedings in the Queensland Court of Criminal Appeal in (1992) 62 A.Crim.R. 96.

[19] [1935] UKHL 1; [1935] A.C. 462.

[20] [1969] VicRp 109; [1969] V.R. 858, per O'Bryan and Little, JJ. at 866-867 and 871.

[21] E.g. Ianazzone v. R. [1983] VicRp 60; [1983] 1 V.R. 649.

[22] Weissensteiner[1993] HCA 65; , 178 C.L.R. 217 at 228.

[25] [1937] HCA 53; (1937) 58 C.L.R. 190 at 213.

[26] [1969] HCA 68; (1969) 122 C.L.R. 444, at 450-451.

[28] [1955] HCA 59; (1995) 93 C.L.R. 493.

[29] [1937] HCA 53; 58 C.L.R. 190 at 206.

[30] [1954] HCA 41; 92 C.L.R. 660 at 662.

[31] [1974] 2 N.S.W.L.R. 548.

[32] [1969] HCA 68; 122 C.L.R. 444 at 451.

[33] [1981] 2 N.S.W.L.R. 713 at 716.

[34] (1986) 83 Cr.App.R. 251, per Mustill, L.J. at 255-256.

[35] (1989) 88 Cr.App.R. 173, at 178.

[36] (1989) 88 Cr.App.R. 380 at 384-385.

[37] [1990] 2 A.C. 320.

[42] Unreported, Court of Appeal of Victoria, 18 October 1996, per Southwell, A.J.A. at 31.

[43] See Packett[1937] HCA 53; , 58 C.L.R. 190 per Dixon, J. at 213; Beavan[1954] HCA 41; , 92 C.L.R. 660 at 662; Gammage [1969] HCA 68; 122 C.L.R. 444 per Barwick, C.J. at 450-451, and per Menzies, J. at 457-458.

[44] [1999] VSCA 145. in the judgment of the Chief Justice and myself at [2] and of Callaway, J.A. at [16] to [20].

[45] Cf. R. v. Tripodina and Morabito (1988) 35 A.Crim.R. 183 at 191; and R. v. Calides (1983) 34 S.A.S.R. 355, at 359.

[46] Compare also R. v. J. (No. 2) [1998] 3 V.R. 602, per Callaway, J.A. at 642-643.