The intermediate facts were stated in this case to be that the Crown had to prove that the killing of Snezana was murder; that it was not suicide and, it had to establish the opportunity of the appellant (to perform the killings). These so described intermediate facts are no more than ingredients (even if one is expressed in negative language) of the central fact requiring proof namely that the appellant was the perpetrator.
13 The complaint in the ground concerning onus of proof was based upon this passage in the summing up:
"But before you can convict on circumstantial evidence you must be satisfied beyond reasonable doubt that the facts as found by you are inconsistent with any other rational conclusion than that the accused is guilty. But that does not mean that you should consider each circumstance by itself and consider whether that circumstance is consistent with innocence, and then move on to the next circumstance. It is the combination and the totality of the circumstances that you find proved that you must look at and you must consider whether that combination and totality of circumstances is consistent with innocence. If it is, it is your duty to acquit. But if, having regard to the nature, the totality and the combination of circumstances, you are satisfied beyond reasonable doubt that the circumstances are consistent only with guilt, then it is your duty to convict.
In the context of this case that means that you must be satisfied beyond reasonable doubt that the killer could not have been Snezana Velevska, the murder suicide theory; that it could not have been Petre or Tasa Velevska, the only other persons in the house that evening, and could not have been someone from outside the house.
It has not been suggested it could have been some one from outside the house. Tasa is, we are told is infirm and partially crippled, and Petre has denied doing it. The defence case has been fought on the basis that it was, or could have been, Snezana who did it."
14 It was argued that the expression "consistent with innocence" appearing twice in the above passage was, on first appearance suggestive and on second appearance effective, of reversing the onus of proof. I am unpersuaded that such a conclusion is fairly open. In context, his Honour was elaborating the meaning and application of his instructions concerning the appellant's entitlement to be acquitted unless the jury were satisfied beyond reasonable doubt that the facts were inconsistent with any other rational conclusion other than that the accused was guilty.
15 I would reject grounds 2 and 4.
16 In similar terminology to grounds 2 and 4, ground 3 simply made a general assertion of error. Specific matters were raised in submissions. Near the commencement of his charge to the jury, the learned trial judge gave conventional directions as to the use that might be made of the lies and they followed the broad lines of the contemplations offered in Reg v Lucas (Ruth) 1981 QB 720 in particular when referring to the motive for lying the expression "consciousness of guilt" was used. As recognized in Edwards v The Queen that expression may in some contexts be synonymous with admission of guilt. Further objection was taken to his Honour's remarks about independent proof of falsehood. He had said:
"The fourth matter is that you must be satisfied that it was a lie, either because it is proved to be such by independent evidence which you accept, or because the accused has said something inconsistent with it - that is, he gives two inconsistent versions of one offence (sic - event?) in which case at least one of the versions must be false, or if the accused has admitted what he said was false."
17 However he concluded this portion of his charge immediately following the extract above cited with this caution:
"But, bear this in mind, the accused is not charged with telling lies but with murder; and you must not convict him of murder simply because you find he told lies. Lies are only relevant in accordance with the principles I have just given you if they amount to circumstances which, along with other circumstances, satisfy you beyond reasonable doubt that there is no other rational conclusion but that the accused is guilty."
18 The terms of that direction would exclude any conception that the earlier use of the expression "consciousness of guilt" was intended to convey the sense "admission of guilt". That meaning would not require the addition of other circumstances such as the jury were then told were necessary. Nor am I persuaded that the jury may have been led into error by what his Honour said about independent proof. At this stage of the summing up the guidance being given was significantly abstract and what was said on this issue needs to be understood and seen in the context of the whole summing up. Towards his conclusion his Honour gave the jury a summary focussed upon the crown reliance upon asserted lies in the particular case. It is apparent that the Crown Prosecutor had relied upon three instances, the first and third being statements about problems in the appellant's marriage and his ignorance of how to manipulate the privacy locks in the house. The jury were explicitly directed that they would not take those matters into account at all and, by way of emphasis, his Honour remarked that the evidence in relation to the third instance showed that the appellant's claim of ignorance concerning the locks may well have been the truth.
19 As to the remaining matter the jury were directed:
"The next matter that the Crown says was a lie that he told, was that he spent from 1pm to 6am in Zaklina's room and that he slept from about 3 or 4pm until 6am the next morning. The Crown says that this is proved to be a lie firstly as a matter of common sense, sleeping for that long. There is Dr King's evidence and the Crown says that there is Mr Petre Velevski's statement in his first statement about him being out on the Sunday evening, if you are satisfied that that is established.
The Crown submits the reason for this lie, and you will remember I said you have to be satisfied that (a), that it was a lie and (b), that it related to a material matter and the Crown says that the reason for this lie is to give him a type of alibi that he was asleep and therefore he did not do it. On the other hand, in relation to that, it is submitted on behalf of the accused that the fact that he and his parents heard nothing proves that it must have been a murder caused by Snezana, and therefore there was nothing to hear, so it does not matter whether he was asleep or not. That is an issue of fact and you have to resolve that for yourselves."
20 (Dr King was a neurologist who had specialist knowledge of sleep patterns and whose practice concerned persons suffering sleep disorders. He examined the appellant's stated sleep patterns as conveyed to police in the course of various interviews. He testified that it was extremely unlikely that the appellant, if going to sleep between 1pm and 4 pm would sleep through until 6 am the following morning. The reference to "being out" on the Sunday evening is to the statement by Petre to police that the appellant had been out of Zaklina's room on the Sunday evening. In testimony Petre repudiated this part of his statement to police.)
21 The use that the jury might make of this evidence was restricted (consistently with the earlier general direction) in these final observations relating to the Crown case on this topic:
"You will remember I told you the four matters that you must take into account in relation to lies and if you are satisfied there (was) a lie, the Crown does not suggest that that is an admission of guilt. The Crown puts it merely, if established, as one of the additional circumstances and the Crown submits that all those circumstances taken together, the combination and totality of the circumstances, will satisfy you that there is no other rational conclusion open than that the accused is guilty, notwithstanding any doubts which may otherwise have existed as a result of the medical and pathological evidence."
22 It was submitted that the alleged inadequacy of directions on the issue of lies (and the significance in the minds of the jury) was manifest in a question received from them in the course of deliberation.
23 The question read:
"You directed on Wednesday that one of the three lies presented by the Crown was not proven as a matter of law. Does this preclude the jury from considering other evidence as lies and testing them appropriately against the three criteria; for example the issue of arguments in the house during the days before the killings."
24 It was submitted that this should be viewed as revealing that two suggested lies of the three sought to be relied upon the Crown rather than only one were being considered by the jury. His Honour had said of the assertion concerning the state of the marriage that it "had not been proved to be a lie" and continued "I direct you as a matter of law you would not be able to take that into account as telling a lie" whereas in respect of the assertion of ignorance of the operation of the privacy locks, he had said that the appellant's claim may well have been the truth. Those observations almost inevitably suggest that the jury note referred to the direction about the assertion of lie concerning the state of the marriage where his Honour did couch his directions in terms of lack of proof as a matter of law and it does not imply that the jury were erroneously taking into account the excluded matter which his Honour had described as probable truth. It is true that in the early general directions his Honour had spoken of four rather than three criteria, however the thrust of the enquiry was whether the jury could range outside the matter relied upon by the Crown and his Honour responded by directing the jury that this was not permissible. He mentioned that there were four criteria and I am unpersuaded that any of the events recounted demonstrates that the jury may have impermissibly approached the issue of asserted lies told by the appellant.
25 Ground 3 is not sustained.
26 Ground 5 complained of the absence of directions about the use that might be made of the evidence of Petre Velevski. He had been interviewed by police and it was said that at that time he was "a suspect" although one would not rationally read into that any more than that it would be expected that all those in proximity and with possible opportunity of perpetration would be classified as suspects until eliminated. In this case the evidence revealed three people other than the victims in and about the home at 10 Castle Court and they were the appellant and his parents. There was no evidence suggesting forced intrusion into the house by a stranger. The appellant's mother had suffered a stroke a few years previously and was handicapped and in poor health. It was not suggested at trial nor at the hearing of the appeal that she could reasonably be regarded as a possible perpetrator.
27 Petre Velevski sought to recant portions of the statements to police in particular reference to the appellant having emerged from Zaklina's room on Sunday evening (contrary to his assertion that he had slept from Sunday afternoon through to Monday morning) and the Crown Prosecutor was permitted to cross examine. Reliance was placed upon an observation in Lee v The Queen 1998 72 ALJR 1484 @ 1488:
"Even if the trial judge was right to conclude, as he did, that (Mr Calin) could be cross-examined about his prior inconsistent statements and was right to conclude that evidence could be given of those prior statements, it was necessary to identify how those prior statements might properly be used by the jury."
28 No application was made by senior counsel appearing at trial for any specific direction in respect of Petre Velevski's evidence although it should be acknowledged that complaint was made that his Honour's directions were (un) "balanced in favour of the Crown". Such a perception is not reasonably available to be drawn.
29 It is now rhetorically argued the Crown had to eliminate the possibility that Petre said what he did in order to protect himself (from potential culpability) rather than the appellant. In response to the Crown Prosecutor, Petre testified that he had no involvement in the death of Snezana or the children. Immediately following his testimony and in the absence of the jury there is recorded discussion in which senior counsel stated that the accused's "defence" was that this was a homicide/suicide but that he was entitled to put that the Crown had not discharged its onus of excluding Petre as a possible perpetrator although he (senior counsel) did not intend to assert this. The Crown Prosecutor did not dispute this entitlement to argue that proposition to the jury. It is significant however that the appellant's own testimony given later did not include any contemplation that his father could possibly have been the murderer. The accused's testimony included these responses :
"Q. I suggest to you that you forced her off the bed onto the ground beside the bed near the cot, and there you cut her throat?
A. No, I was not even up. I did not do that, nor did I do this. It has been proved this has been committed by her.
Q. I suggest to you that after killing your wife you then set about killing the children?
A. No, she killed the children, then she killed herself. Had she not killed the children, then she would not have killed herself."
30 The Crown has submitted that, not only was the defence case advanced to the jury to accord with that evidence, but the absence of any request for direction about the evidence concerning the appellant's father was understandable in the light of the reliance by the defence on parts of it, prominently that he had heard no noise during the night between the Sunday and the Monday.
31 It might be added that reluctance to address to a jury a possibility that Petre may have been the perpetrator would be understandable in the light of the unchallenged evidence concerning his considerable devotion to his granddaughter Zaklina. Subject to exception, such as the first day of term, it appears that it was he that escorted the little girl upon her daily journeys to and from school. The inevitability that the children were victims of murder was accepted and a tribunal of fact might readily reject a hypothesis that the grandfather might have killed the object of such obvious affection and devotion.
32 It was acknowledged that leave was required to argue this ground. Leave should be granted if substance can be shown but in my opinion it was not. The Court did not restrict argument but in the absence of any merit being demonstrated, as was the case, I would refuse leave to rely upon ground 5.
33 The principal thrust of argument was directed to ground 6 within which in practicality ground 1 may be taken to be subsumed. The grounds of appeal were filed prior to the decision of the High Court in Fleming v The Queen 1998 73 ALJR 1. In that case the Court said:
"Use of the potentially confusing phrase 'unsafe and unsatisfactory' to cover the several different elements in the subsection is liable to mislead. There is no substitute for giving attention to the precise terms in which section 6(1) is expressed."
34 The Court had earlier said:
"Section 6(1) of the Criminal Appeal Act provides that, on an appeal under s 5(1) against conviction, the court shall allow the appeal if it is of opinion that any one or more of three conditions is made out. The first is that 'the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.' The second is that 'the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law.' The third is that 'on any other ground whatsoever there was a miscarriage of justice.' This power to allow the appeal is subject to the proviso that, notwithstanding that the court is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, the court may dismiss the appeal 'if it considers that no substantial miscarriage of justice has actually occurred."
35 The further use of the phrase "unsafe and unsatisfactory" to describe a ground of appeal is precluded: see Regina v Maxwell CCA unreported 23 December 1998. The focus of the argument advanced in respect of ground 6 was upon the first of the three conditions in section 6(1) of the Criminal Appeal Act in essence that the verdict of the jury was unreasonable on the basis that the evidence showed that the Crown had not excluded possibilities which were consistent with innocence as well of course, as the third condition that there was miscarriage to be deduced from the cumulation of matters argued. Recognizing what has now been said authoritatively the submissions advanced should be dealt with in the terms by which they were advanced and the ultimate question remains for this Court namely whether the jury ought to have had a reasonable doubt about the guilt of the appellant.
36 In submissions counsel advanced three groups of numbered "points" which were elaborated both in oral and written form. The groups consisted of eight matters upon the hypothesis that Snezana suicided; seven matters concerning the expert medical evidence and twenty summarized reasons why the verdicts were submitted to be unsafe and unsatisfactory. I will address these groups and their constituents seriatim.
37 The first point was the existence of expert evidence supporting a murder/suicide conclusion. The possibility of suicide by Snezana was canvassed by the six forensic pathologists who testified - Dr Bradhurst, Dr Cooke, Dr Oettle, Dr Collins, Professor Mason and Dr Zillman. Dr Bradhurst had been called to the scene by police. He performed post mortems on the following day and a second post mortem examination later in the company of Dr Cooke. Dr Bradhurst considered that the probabilities favoured murder/suicide and Dr Zillman expressed the same view. The others favoured murder/murder except Dr Cooke who effectively adopted a non preferential stance. It will be necessary to conduct some examination of the views of the pathologists and the bases for them. At present it suffices to observe that there was credible evidence available to the jury upon which they could find that all four deceased were the victims of murder. It is recorded that Detective Whyte testified that he had been informed by Dr Bradhurst that others of his professional colleagues were in support of his view. Professor Hilton, Dr Duflou and Dr Botterill were named but no statement of their concordant views was obtained by police and they were not called.
38 The second point was the ordered way in which the bodies had been assembled which was described as consistent with the conduct of a meticulous housekeeper as Snezana had shown herself to be. This evidence was that she was tidy to the point of obsession. It is understood that none of these points was contended to be offered for assessment in isolation, however it can be observed that the jury had other evidence in particular the video of the scene (exhibit A), the viewing of which offered to the jury an unmistakable implication that someone other than Snezana had also been meticulous about housekeeping. Save the unmade beds in Zaklina's and the parent's rooms and the death scene in the main bedroom, there was not a single sign viewable on the video of any of the common incidents of human occupation of a house. At least Petre, Tasa and Zaklina had eaten a simple meal of potatoes on the Sunday night. Whilst it could not be considered unusual to wash up and clean after a meal, the video shows that nowhere in the house is there to be seen a cup, a glass, a utensil or anything anywhere detracting from what was called "pristine" presentation. The exception may be Zaklina's schoolbag but it can be commented that it would not be surprising if the jury found the video portrayed scenes of striking unreality. The implication that there had been meticulous detailing of the house would be strengthened by the knowledge that Petre and Tasa had, in effect, been bundled out of the house shortly after 6 am on the Sunday with the belongings which they took with them wrapped in a sheet and others said to be left behind for later collection. The video does show some items which undoubtedly were equipments of investigators and would properly be ignored.
39 The next point referred to the absence of signs of struggle and the confinement of blood to the area where the bodies were located. The weight to be accorded to these observations is dependent upon the hypothesis being considered. There would have been little struggle by the twin babies. Zaklina's body manifested a wound which some pathologists thought could be "defensive" but there were no signs of extensive struggle having been engaged in by her. If Snezana was also the victim of murder and she was killed first there would be no specially cogent reason to expect to find signs of struggle. It was well open to conclusion that the circumstances did not necessarily suggest suicide rather than murder.
40 Fourth, it was put that there was evidence that Snezana had resolved to leave her husband and take the children with her "wherever she went'". The evidence emanated from the appellant and was corroborated by Petre's testimony at trial. This was a matter of credibility and the jury had the advantage of hearing the testimony for the purpose of gauging what weight to attribute to it.
41 The fifth matter is an assertion of history of mental illness and depression in Snezana's family said to effect her mother, her brother and herself. The evidence about these matters is ephemeral and some of it contradicts the submission. There is a hospital record that someone was told that Snezana's mother had been taking the drug Sinequan. When, for how long and for what symptoms it was prescribed remain undisclosed. Snezana's brother apparently was recorded as attending Illawarra Health Service at about the time he was making a job application and he gave a history of feeling depressed. Whether this history should be taken in the vernacular or diagnostically is undetermined.
42 Finally in this regard, the suggestion concerning Snezana was based upon a note by a social worker who pressed for a psychiatric consultation apparently as a reaction to perceived inability to establish rapport between herself and Snezana. It is to be observed that an attending medical practitioner (concerning the pregnancy resulting in the birth of Zaklina) had a different impression. A Crown contention that there is in fact no relevant psychiatric history would appear to be correct.
43 The sixth point raises the possibility that Snezana, as at 20 June 1994 was suffering from postnatal depression. The material in this regard is entirely speculative. The evidence shows that in general postnatal depression may not emerge until three to four months after delivery and that the symptoms may be hidden from the consulting physician. The obstetrician attending Snezana Dr Walker, saw her on 29 April and thought that she was exactly the opposite of depressed. He described her as jovial and chirpy, essentially "skiting" about how well things had gone and she was managing. Dr Rao, who was a general practitioner and the family doctor, had known Snezana since she was eleven years of age and he saw her and the children with the appellant in his surgery on 6 May. He said she appeared extremely happy on that day.
44 The seventh matter contended was that Snezana was upset following a phone call on that weekend with her mother. It was said that she relayed to the appellant that her mother had declined to mind the children and thus a proposed shopping excursion would have to be postponed. This was expounded in parallel with the proposition that Snezana was finding it difficult to cope with having her elderly parents in law living with her. Petre Velevski said that he had never heard Snezana complaining to that effect. In the absence of extreme psychiatric disturbance it would be difficult to assess these matters as contributors to a decision to commit murder/suicide.
45 The eighth and final matter referred to the evidence of Dr Wilcox a psychiatrist who had examined available material including reports, hospital files and some transcripts of evidence. She had also viewed the video (exhibit A). She testified that murder/suicide could be considered an act of love and that some people saw this as taking their (murder) victims to a better place. In the remarks attributed to Snezana by the appellant and his father, the concept of such an ascent to a better place did not appear, rather they were limited to saying that the children would accompany her "wherever she went". The appellant said that she proposed that she might take a flat which, in addition to any other objection he had, he considered economically damaging. On analysis the evidence of Dr Wilcox was essentially theoretical.
46 In summary the eight points offered provided little which was probative of suicide let alone compelling towards such a conclusion. It cannot be overlooked that it was incumbent upon the Crown to exclude the possibility of suicide and not for the appellant to demonstrate it, but the matters raised individually and in combination fall far short of demonstrating that a reasonable jury ought not to have rejected that possibility.
47 The next group of propositions related to seven matters concerning the medical evidence, specifically the opinions of the forensic pathologists pro and con the circumstances manifesting murder/murder or murder/suicide. I shall turn to the expert evidence in a little more detail later but brief reference will need to be made in relation to some of this group.
48 First it was noted that all experts were confronted with a highly unusual scene, the stacking of the bodies lay outside the realm of the personal encounter of all experts and the novelty was not removed by reference to any published experience of others. It was contended that therefore the opinions were contaminated by both speculation and guesswork. Assumptions are frequently made by experts and it was for the jury to find which facts were established and then integrate those facts with relevant acceptable opinion.
49 Second it was put that those experts "disposed towards the Crown theory" were unable to provide a plausible scenario as to how the appellant is said to have committed the offences. It is trite to say that it was incumbent upon the Crown to prove that the appellant was the perpetrator of the killings and not that it had to prove all of the detail of the actions constituting homicide. In short, the Crown was required to prove that the appellant cut the throats of the victims thereby causing their death. Obviously it would be fortifying to identify more elaborately the mechanics of the killings but to say that a plausible scenario is absent does not inevitably raise a doubt about the identity of the perpetrator. The submission on behalf of the appellant did carry a hint of hyperbole. The Crown Prosecutor had explicitly put to the appellant that he had taken Snezana unawares and killed her, with other events following in succession, and it is clear that the jury did not find those circumstances, nor were they, implausible.
50 Third, the advantages of Dr Bradhurst who was the only pathologist who saw the bodies in situ, who conducted the post mortems and who had a three dimensional perspective of the scene in the bedroom, must be recognized. I agree, but it does not follow that his opinion must inevitably be preferred.
51 The fourth point notes the support of Dr Zillman for Dr Bradhurst's view (that he favoured murder/suicide) and the reported agreement of his colleagues, Professor Hilton, Dr Duflou and Dr Botterill. The fifth point adds that the only other pathologist to be present at a post mortem was Dr Cooke and he was unable to reach a concluded view in favour of either murder/murder or murder/suicide.
52 The sixth point was that those experts who favoured the Crown case were reliant upon photographs to form their opinions. Dr Zillman who favoured the murder/suicide proposition was in the same situation. The point was essentially a corollary of the observations concerning the advantages of Dr Bradhurst. Reference was made to the criticism of the use of photographs by experts in R v Manley CCA unreported 15 December 1994 where it was said:
"Both commonsense and the observations of Dr Collins required the most careful consideration of the weight, and of the reservations called for as to the reliability, of any expert opinion based on suggested observations in the photographs and slides. The potential unsoundness of relying upon such an opinion, particularly where it was in conflict with or not supported by the qualified expert who examined the body and made the relevant histological examinations, is obvious."
53 That extract of judgment must be assessed in the context of the issues then under examination. Whatever handicaps existed in the present case were explored in the evidence and I do not regard the statement in Manley as authority for the proposition that in every case in every circumstance, opinion based upon examination of photographs is to be treated as unsound. I did not understand the submission to advance to that point. It should be noted that much of the evidence given by the various pathologists was not evidence of what they observed either from inspection of the bodies or from photographs, but evidence of inferences by them, based on what it was common ground could be observed and therefore what had probably happened in the bedroom of the house, and it was open to the jury to take the view that no one of them, Dr Bradhurst included, was in a significantly better position to draw such inferences.
54 The final point adverted to asserted reliance on non medical matters and intuition. Reference was made to the absence of history about Snezana's current medical condition and her family history but as noted in earlier analysis, there was no evidence that Snezana was affected by any relevant medical condition and the family history as described in the submission was to a significant extent fallacious.
55 I turn next to the twenty matters (additional to the foregoing) summarizing the submission that the verdicts were unsafe and unsatisfactory.
56 First it was stated that "such was the state of the investigation" that no arrest was made for six months. I am unable to perceive how this would contribute to any indication about the safety of the verdicts. Presumably investigators had received the opinion of Dr Bradhurst and that would make it imprudent to pursue investigation with undue haste. The lack of haste of investigators is scarcely a test of the ultimate validity of what they discovered.
57 Next it was observed that there was no forensic evidence to link the appellant to the crime. Mention was made that there were some fingerprint markings on the handle of the knife suggesting that it was not wiped as one might expect if an attempt to avoid detection by that method were being made. Somewhat in counter balance to that observation however, the evidence shows that Snezana's hands were heavily bloodied and if she had wielded the knife it became surprising that significant blood was not transferred to and did not remain upon the handle.
58 Third the evidence was that the appellant was to all appearances a good and loving father. No motive was established and Snezana's announcement that she intended to leave (made, according to the appellant, for the first time on the Sunday) would provide an unconvincing motive for annihilating the family. Inability to determine motive has been a concomitant of horrendous crime not infrequently in reported history. It is not the duty of the jury to acquit when something of undoubted interest but not required to be established by the prosecution, remains shrouded in mystery.
59 Fourth the appellant voluntarily complied with requests to provide fingerprints, blood and hair samples and it was said that he therefore did not do anything other than assist police. It certainly can be said that he did not obstruct the police enquiries but whether he assisted them would be a conclusion dependent upon where the truth lies.
60 Fifth it was noted that investigators conducted a most comprehensive forensic examination of the house and the appellant's clothing and there was "no result". That consequence would be consistent with murder/suicide but most unexpected if murder/murder had taken place and the murderer needed to eliminate traces of his activities.
61 Sixth there was no evidence of attempted removal of bloodstains and the opinion of forensic examiners was that it is almost impossible to extinguish stains completely.
62 Seventh, the appellant had no background of violence or mental instability.
63 Eighth, no one inside or outside the house heard any sounds which "would have undoubtedly accompanied a murder". The basis for this assumption is not apparent but it is true that neighbours were from time to time able to hear sounds emanating from the house and the building was not what might be described as acoustically sealed. The only occupants of the house who testified were the appellant and his father.
64 Ninth it was said that there was no evidence that the appellant had the opportunity or the capacity to return the house to "its pristine condition" after the event. The absence of opportunity is significantly dependent upon the credibility of the appellant's assertion that he was in Zaklina's room from 1pm on Sunday until 6 am on Monday. No direct testimony related to the appellant's capacity as a housekeeper although, as earlier commented concerning the appearances on the video, someone had put the house into a virtual showroom condition with the exception of the bedrooms.
65 Tenth, having regard to the appellant's background and labouring occupation it was said to be difficult to conceive how he could recreate the scene so as to delude the experts, including Dr Bradhurst in particular.
66 Eleventh, it was contended that if the offences were planned and the scene recreated it might have been expected to have been better done. Examples were suggested that the killings might have taken place away from the house; or a break-in might have been staged; or the parents removed beforehand or the knife placed in Snezana's hands. These were, of course, recognized as speculations.
67 Twelfth, it was argued that if the appellant recreated the scene to give the appearance of suicide, it was inconsistent with that objective to be reluctant to discover the bodies and also inconsistent not to embrace the proposition of suicide when he was questioned by police. By the time of trial the appellant had however embraced the proposition that Snezana had suicided as is manifest in the extract of evidence set out above.
68 Thirteenth, it was observed that nothing incriminating derived from listening devices which were put in place or from interception of telephone calls. It might scarcely be expected that any murderer who had acted alone would discuss his crime although investigators may hope that something inconsistent with a posture adopted by a suspect could be said. The mere absence of useful product from listening devices and telephone intercepts would not logically cast doubt upon incriminating evidence.
69 Fourteenth, if the appellant was guilty he must have over an extended period maintained a charade of considerable effect. There is nothing to suggest that he had the talent to be a self possessed and clever actor: cf Chamberlain v The Queen (No 2) supra.
70 Fifteenth, there was no evidence that the appellant knew how to gain access to the bedroom through the locked door. As mentioned already, the learned trial judge directed the jury that the appellant's claim in this regard might well be true and the Crown argument that he lied about it had to be rejected.
71 Sixteenth, it was rhetorically asked why any murderer would arrange the bodies and risk the possibility of leaving clues (including the knife) at the scene.
72 Seventeenth, it was noted that the testimony of the appellant at trial was entirely consistent with his responses to lengthy and repeated interrogation by police.
73 Eighteenth, the appellant appeared to be grief stricken in the days following the deaths.
74 Nineteenth and twentieth, the submissions were reiterated that the Crown had failed to exclude the reasonable possibility that either Petre was responsible for murder/murder or that Snezana had murdered the children and then committed suicide.
75 Many of the propositions in the foregoing three groups were couched in negative and rhetorical terms. That is not said by way of criticism and such an approach is to be expected when the focus of argument is upon whether a hypothesis consistent with innocence has been excluded. There was and is no onus on the appellant to establish any such hypothesis. Nevertheless the matters raised do not in my view demonstrate that the jury ought to have had a reasonable doubt as to the guilt of the appellant if it was open to them to find the Crown case proved. To be so open it was necessary for the jury to reject the opinion of Dr Bradhurst (supported by Dr Zillman) and be satisfied that murder/murder had been committed. That is not to suggest that it was open to the jury to convict on the basis of selected acceptance of forensic pathological opinion alone, this was not contended by the Crown and the jury were directed appropriately.
76 Some further observations should be made concerning the forensic material which gave rise to the difference of opinion among the experts.
77 When her body was found Snezana was wearing a pink coloured nightdress and a cream/white bed jacket as well as undergarments consisting of a brassiere and pants. The testing of heavy blood staining on the night dress and bed jacket revealed that fourteen examined areas on the back of the night dress produced readable results showing that five of the areas were Snezana's blood; two of the areas were blood from Zaklina; four of the areas were blood from the twins and three areas were mixtures. Of the lastmentioned, the analyst identified one mixture as blood of Snezana and one of the children but she could not say which; one mixture was of blood from Snezana and Zaklina and the final mixture consisted of sources which she could not identify. The bed jacket produced seventeen readable results from testing blood staining on the back. Four areas originated from Snezana; three from Zaklina; three from the twins and seven areas were mixtures. Of the seven mixtures one was identifiable as sourced from Snezana and Zaklina; three contained contributions of Zaklina's blood, and three were mixtures of which the source was unestablished.
78 There were also established test results from the fronts of the garments. No blood sourced from the twins was identified from the areas tested in the fronts. It was of considerable significance that the bodies were stacked with Snezana prone on top of the children, yet blood from all victims was on the back of both Snezana's outer garments. The twins were identical and blood distinction between them was not possible and it would be futile to seek to distinguish whether particular blood came from Daniela or Dijana or vice versa. Another aspect of blood staining relates to the area of wall in the region of the bed head. There was blood spatter extending to an area which was behind the mattress and base which were positioned between the bedside tables. As senior counsel for the Crown observed, expertise was unnecessary to conclude that (even if the heavier observable staining could have resulted from blood passing under the base) that the upper spatter could only have been deposited if the mattress and base were away from the wall. The suggestion on behalf of the appellant that the bed may have been moved by police or ambulance lacks any support from the evidence. The blood on the plaster wall was examined after a section of the wall was cut out. Four areas were subjected to identification testing and all were sourced from Snezana. Although, as will later be mentioned, there were two major wounds to Snezana's throat, there is obviously difficulty in attributing credence to the murder/suicide theory if it is her blood on the wall (as it was) and the bed has been moved back into place after that blood has been expelled from her stabbed body.
79 The next matter recorded before turning to some testimony of the pathologists is that, although the lower part of Snezana's body was clear of the stack and all wounds were to the throat area, there appear three marks on the outer aspect of her left leg between knee and ankle level. These marks are more or less parallel and they are suggestive of fingermarks such as might be caused if the body was being grasped by a bloodied hand. (The marks are visible in photograph 16 of Exhibit B for example but they are far more clearly depicted in the video, Exhibit A). There is pathological opinion supportive of the view that those stains could have been caused by fingers. Snezana's lower limbs were splayed well clear of the substantial blood pooling and soaking near the bedside table and bed head.
80 Dr Bradhurst supported the probability of murder/suicide. He expressed reliance upon a combination of factors and mentioned the "quietness" of the scene, the absence of apparent aftermath of struggle, the superficial cuts along the edges of the wounds and the absence of "defence" injury as matters pertinent to his opinion. His advantage as the first expert pathologist on the scene and as the performer of post mortems was recognized.
81 There were, however, aspects which were in my view capable of persuading a tribunal of fact acting reasonably to decline to rely upon Dr Bradhurst's opinion that murder/suicide was probable or even possible. It could be regarded as significant that his opinions were initially formed, and subsequently adhered to without being aware that the blood on the night dress and jacket worn by Snezana included blood of the children on the parts already described. He accepted, as the jury might have, that if Snezana had been taken unawares the factors of quiet scene and absence of struggle or defence injuries might be expected in any case. There was contradiction between the experts as to whether the superficial cuts should be interpreted as hesitation wounds such as a suicide might make or simply products of the use of a weapon with an irregular blade such as the knife found at the scene.
82 When questioned about the results of testing of Snezana's garments he gave this evidence first in relation to her own blood on the back of the clothing:
"Q. Can you offer any explanation as to how there is some of her blood on the back of her night jacket?
A. Yes.