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[2021] VSCA 186
General information, not legal advice.
Court of Appeal (Vic)
2021-06-24
Maxwell P, Beach JA, Forrest JA
Original judgment source is linked above.
CRIMINAL LAW - Appeal - Appeal against conviction - Murder - Whether verdict of guilt reasonably open to jury - Whether open to judge to find statements by accused were lies - Characterisation of lies as incriminating conduct - Whether finding false accusation of others was incriminating conduct involved bootstraps reasoning - Prosecution's duty of disclosure - Requirement to disclose relevant evidence not intended to be relied upon - Evidence not required to be disclosed until relevant - , (1), , (b); ; , , ; considered - Application for leave to appeal refused.
CRIMINAL LAW - Appeal - Appeal against sentence - Manifest excess - Murder by burning at top end of range of seriousness - Whether excessive weight given to method of murder - Aggravating factors - Applicant falsely blamed named individuals for offending - Objective gravity extremely high - Moral culpability extremely high - Lack of mitigating factors - No evidence of remorse - No psychological explanation for offending - Strong condemnation required for domestic murder - Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, Atem v The Queen [2020] VSCA 35 applied - Application for leave to appeal refused.
1 On 20 November 2018 after a four-week trial the applicant was found guilty of the murder of Darren Reid, her husband. After a plea in mitigation the applicant was sentenced to 34 years' imprisonment with a non-parole period of 28 years.
2 The applicant now seeks leave to appeal against her conviction and sentence. For the reasons which follow, leave to appeal must be refused.
3 On 18 December 2016, shortly after 11:20 pm, police, fire brigade personnel and ambulance paramedics attended at 42 Derwent Drive, Long Gully in response to a report of a fire at those premises. They observed several small fires in the rear outdoor area of the property, and found Darren Reid, an occupant of the house, lying partially submerged in a bathtub. He had sustained burns to 95% of his body.
4 Present at the Long Gully house was his wife Kate Stone (the applicant) and two of their five children, DA and SA. Darren Reid was removed from the bathtub by paramedics and transported initially to the Bendigo Hospital and then flown to the Alfred Hospital in Melbourne. During the road trip to the Bendigo Hospital, Mr Reid told Senior Constable Narelle Taylor that 'a male came to the door'; he was 'dark', and aged in his late 20s to 30s. Mr Reid then said, 'A can got thrown. I opened the door and I got lit up.' Asked, 'Have you seen him before?', he responded, 'No, might've been the same guy that attacked my other half a couple of weeks ago.' Senior Constable Taylor asked, 'Was it definitely him?' Mr Reid replied, 'Yeah.'
5 Mr Reid further stated to Senior Constable Taylor that 'three weeks ago the other half was attacked over a kids' fight, and it was the same three males that came tonight'. He stated he did not know their names. Upon arrival at the Bendigo Hospital, Senior Constable Taylor had a further short conversation with Mr Reid in which, when asked whether he could remember anything else, he stated, 'No, I don't know their names.' At this point Kate Stone, who along with her two daughters had joined them at the hospital, stated, 'It was Jason Baxter', and, 'I will tell you everything, but just not at the moment.'
6 As a consequence of his burns, Mr Reid died the following day, on 19 December 2016.
7 On 20 December 2016 at 3:41 pm the applicant signed and acknowledged a detailed nine-page statement concerning her husband's death and events leading up to Sunday 18 December.[1] In summary, the applicant said that:
By doused I mean, he used the same motion as he did with me, but he just kept on going. He would have splashed it on Darren upwards of three times. Darren was covered in it. It was like one swift motion because we were all standing so close. Within like a millisecond, Baxter dropped the can in front of him and took out a red 'Bic' lighter from his right pants pocket. Straight away, Darren stood right in front of me. Baxter didn't even have to touch Darren's clothing with the lighter, he just put it close to Darren's body and up he went. I just heard a 'whoosh' type sound and his whole body was on fire. I don't know what the guys did after that, Darren was on fire. He ran inside and I followed him. He was screaming for water and that he was burning.
8 On 19 December 2016, the crime scene had been secured by local Bendigo Crime Investigation Unit members, and Jason Baxter, Paul Gibson and a third man were arrested that day. All three were interviewed and all three categorically denied that they had been at 42 Derwent Drive, Long Gully on 18 December. Details of alibis were provided.
9 When police finished taking the statement from the applicant they conducted a photoboard identification to endeavour to confirm or eliminate Jason Baxter's involvement. In the photoboard that was prepared, Jason Baxter's photograph was positioned at number 4, at the top right hand corner. When asked to identify Baxter, the applicant selected photograph 7, and said, 'His hair is shorter in the photo. It's the eyes. It's Jason Baxter. The first time he pulled my pants down and the second day he put petrol on my husband and set him alight.' These words were then handwritten by the applicant and that document was retained by police.
10 Police had received intelligence that one Ben Thatcher had been involved in the splash park incident at 42 Derwent Drive. They prepared a further photoboard, which contained an image of Mr Thatcher, positioned at number 6. When shown the photoboard, the applicant indicated photograph 6 and said, 'It's Jason Baxter. He's got a beard now and more hair. It's the same man I saw in my backyard on two occasions.'
11 A further photoboard was prepared, incorporating an image of Paul Gibson positioned at number 5. The applicant indicated photograph 12, saying, 'Number 12, in me backyard.'
12 Thatcher and Gibson were quickly ruled out. On the evening of 18 December 2016, Ben Thatcher was in police custody and Paul Gibson had an alibi.[2] In addition, Gibson was fitted with a very prominent full left-arm, white plaster cast, which was depicted in a photograph tendered as an exhibit. There was no mention of this plaster cast in either the applicant's statement or in her description of Gibson in her record of interview.
13 Other evidence directly contradicted the applicant's version of events. Expert examination showed that the seat of the fire was in the back porch area, near the back door and some distance[3] from the rear shed. Further, the accelerant used was paint thinners. It was not petrol.
14 DNA samples taken from a tin of paint thinners found in a neighbouring backyard were compared with reference samples taken from Jason Baxter, Paul Gibson and the applicant. Mixed DNA profiles were obtained from samples taken from the handle of the tin, its side and base area. There was 'extremely strong'[4] support for the proposition that Darren Reid was a contributor to these evidentiary samples. There was 'very strong'[5] support for the proposition that the applicant was a contributor to two of the three evidentiary samples. Neither Paul Gibson nor Jason Baxter could be linked through DNA to the tin of accelerant.
15 The lid of the tin of paint thinners was located under the dining room table inside the applicant's house.
16 Police conducted a cautioned interview with the applicant on 4 January 2017, some 15 days after she signed and acknowledged her police statement. In essence, she maintained the account that she had provided in her statement: 'Two weeks later Baxter walks into my backyard or whatever it is and yelling and screaming that he's gunna rape and kill everyone in the house, douses petrol from my own shed. A flick of a lighter [demonstrates audibly] my husband's up in flames. There's your story, mate.'
17 The applicant stated that she too had been 'doused' in petrol. Asked how wet she was, she said, 'I was drenched. I was covered in petrol. Like, yeah, just soaked ...' She could not provide an explanation when told that no paint thinners had been detected on the clothing she had been wearing that night, nor when told that the lid to the paint thinners tin had been found under the dining room table. She denied having a verbal fight with her husband that evening.
18 When challenged about 'Gibbo's' appearance, she maintained that the man she had seen in her backyard was the father of her daughter's friend, and that he did not have a cast on his arm 'a week ago when he was in my backyard'. She then resiled from this and said, 'obviously I've got the wrong person', and, 'I don't know if it was Gibbo for sure, but I'm telling you he was in my backyard.'
19 When it was put to her that the person she had identified as Jason Baxter was in fact someone else, she said, 'So I've got me identity wrong, I'm sorry, yes.' It was put to her that the person who she did identify from the photoboard 'a hundred per cent' as being the person who set her husband alight was, in fact, 'in prison at the time'. She replied, 'No, I dunno how I can explain that. But the identity, I can't explain. I really can't, about Jason or anyone else.'
20 Asked to 'tell us the truth about what happened', the applicant said, 'I'm telling you that I did not set my husband alight. I would not set my husband alight. I would not think about setting anyone alight.' She denied that she had ever handled the tin of paint thinners.
21 Other evidence relied on by the prosecution at trial included:
22 The principal evidence relied upon by the defence was:
23 There are three proposed grounds to the application for leave to appeal against conviction:
Ground One
The trial judge erred in finding the applicant's alleged lies were reasonably capable of [amounting] to 'incriminating conduct' for the purpose of the Jury Directions Act 2015.
Ground 2
The verdict is unsafe and unsatisfactory or cannot be supported having regard to the evidence.
PARTICULARS
The prosecution could not have excluded the reasonable possibility that it was an intruder and not the applicant who set fire to the deceased.
Ground 3
A substantial miscarriage of justice has occurred because of the failure of the prosecution to disclose the telephone records of Jason Baxter for the date period 18 and 19 December 2016 in circumstances where he was a viable alternative suspect for the offence and where such records were relevant to the credibility and reliability of his testimony and the failure to disclose that material meant the applicant was denied the opportunity to properly test the evidence of Jason Baxter.
24 At trial the prosecution filed a Notice of its intention to adduce evidence of what was contended to be incriminating conduct under s 19(1) of the Jury Directions Act 2015 (the 'Act'). Relevantly, the Notice alleged that the applicant's telling of the following lies was evidence of incriminating conduct:
(a) The attendance at 42 Derwent Drive by three males nominated at different times as some combination of 'Jason Baxter', 'Benjamin Thatcher', 'Gibbo' and another unknown male.
(b) The Accused and deceased confronting the three males in the well-lit backyard (courtesy of a sensor light) and outside the shed.
(c) Baxter/Thatcher holding a fuel can from the shed with the red lid in his other hand.
(d) Baxter/Thatcher splashing both the Accused and the deceased with fuel from this can and setting alight the latter after producing a red lighter.
(e) The Accused and the deceased being in close proximity when the deceased was set alight.
25 In the event, the trial judge directed the jury that it was open to them, should they wish, to use the conduct alleged in (a), (b), (d) and (e) above as incriminating conduct. The judge declined to so direct in relation to particular (c). We shall not consider that particular further. In her directions the trial judge also confined statement (d) to Baxter.
27 The judge correctly noted that her decision whether to permit the prosecution to rely on this incriminating conduct evidence required her to determine whether, on the basis of the evidence as a whole, the alleged lies were reasonably capable of being viewed by the jury as evidence of incriminating conduct.[12] Her Honour also noted[13] that, as defined by the Act, 'conduct' embraces the telling of a lie by the accused after the event or events alleged to constitute an offence charged,[14] and that 'incriminating conduct' relevantly embraces an implied admission by the accused of having committed an offence charged or an element of an offence charged.[15]
28 Her Honour considered the defence's contention that these statements by the applicant were not capable of being characterised as lies. The defence submitted, first, that determining that the statements were lies required the assumption that the accused had committed the murder charged. This would be to engage in impermissible 'bootstraps reasoning'.[16] Secondly, on the evidence as a whole, and in particular the dying declaration of the deceased, no reasonable jury could find that the statements were deliberate lies. There being cogent evidence to support the accused's account, it was not open to the jury to exclude beyond reasonable doubt all explanations for her conduct other than her belief that she had committed the offence charged.[17] In short, as the judge summarised it, the defence's argument was that, '[the accused's] statements [being] nothing more than a denial of guilt ..., if the prosecution were permitted to rely upon the alleged lies as evidence of incriminating conduct, it would amount to a reversal of the onus of proof'.[18]
29 The judge rejected these contentions. The statements that the prosecution characterised as lies were, in her Honour's view, 'far more than a general or bare denial of guilt by the accused'.[19] They were, rather, 'a detailed account' of the events surrounding the deceased's death, well capable of being rejected as lies by the jury when considered against other evidence, and notwithstanding the evidence of the dying declaration.[20] Her Honour saw 'no danger of bootstraps reasoning'. There was 'ample' evidence[21] upon which the jury could be satisfied that the statements were deliberately false, and could rationally conclude that the only reasonable inference to be drawn from the conduct was that the accused believed that she was guilty of the offence charged.
30 Reliance on the lies as incriminating conduct did not, in her Honour's view, constitute a reversal of the onus of proof. The prosecution's ability to show that the applicant's statements were lies, and amounted to incriminating conduct evidencing knowledge of guilt, was essential to the discharge of its proper burden of excluding all reasonable hypotheses consistent with the applicant's innocence. It was 'incumbent upon the prosecution to mount an attack on the alternative theory of the case advanced by the defence',[22] the applicant having advanced such a theory in her 'multi-faceted statement as to how the incident took place'.[23]
31 On the appeal, the applicant amplified the arguments put below.[24] First, the applicant submitted that it was not open to the jury to find that the statements were lies. Secondly, it was submitted that, even if the jury could and did so find, the lies were not capable of being viewed as incriminating conduct, as to do so would require the jury to engage in bootstraps reasoning.
32 The first limb of the applicant's argument stems from what her counsel on the appeal described in oral submissions as the 'vague and ambiguous' way in which the Notice of Incriminating Conduct was framed. Certain of the so-called lies outlined in the Notice were never, it was submitted, statements that the applicant had ever made: she had never named 'Benjamin Thatcher' as a person who attended at her address on 27 November or 18 December 2016, and had never 'categorically [identified]' 'Gibbo' as being present on 18 December 2016. The true provenance of these identifications was with police suggestion, either through police questioning or through the placement of Benjamin Thatcher's image in the photoboard. It was further submitted that the applicant's statement of 20 December 2016 and her record of interview ought be considered together, and the trial judge in her ruling had failed to do so.
33 The applicant contended that it was only those two men - Thatcher and Gibson - whose presence on 18 December 2016 could be positively ruled out by evidence of alibis. The only individual the applicant had identified by name as being present on either night was Jason Baxter, and, it was submitted, his alibi was not established beyond a reasonable doubt. As a result, so the argument went, once it was accepted that the applicant had not herself named Ben Thatcher or Paul Gibson as having been present at 42 Derwent Drive on 18 December 2016, the judge's finding that there was 'ample evidence' in support of the falsity of her account was no longer tenable.
34 The second limb of the applicant's argument under this ground was that, even if the statements in the Notice could be characterised as lies attributable to the applicant, they were not capable of being viewed as incriminating conduct. Counsel for the applicant adopted trial counsel's submission that the applicant's 'multi-faceted statement as to how the incident took place' simply rejected the Crown's case, and as such constituted a 'general denial of guilt'. Accordingly, it was submitted, to place the statements before the jury as lies that could be used as incriminating conduct invited them to engage in bootstraps reasoning. Proof of the lies involved proof of guilt.
35 The respondent contended that the identified statements in the Notice were well capable of being characterised as lies amounting to implied admissions to murder. Further, proof of the lies did not involve proof of guilt so there was no aspect of 'bootstraps' circular reasoning involved in adducing this evidence.
Was it open to characterise the applicant's statements as lies?
36 We agree with the respondent that the applicant's case for error on this basis can be distilled down to one main proposition - it was not open to characterise the nomination of Ben Thatcher and 'Gibbo' as being present in the applicant's backyard at the time of the fatal acts as lies. If this argument is correct then none of the impugned statements concerning the activities of Thatcher or Baxter and 'Gibbo' can be characterised as lies and thus capable of constituting implied admissions.
37 We are in no doubt that the applicant did nominate Thatcher and Gibson as being present in her backyard at the relevant time and that her statements as to their presence (and involvement) were open to be determined by the jury to be lies. As noted earlier, the applicant clearly stated that the man who immolated her husband was Jason Baxter.[25] She had encountered him once previously, three weeks earlier, when he identified himself by name.
38 When shown a photoboard that included a photograph of Jason Baxter, the applicant failed to identify him. When shown a photoboard that contained a photograph of Ben Thatcher (who was implicated in the splash park aftermath), she selected the photograph of Ben Thatcher and stated with apparent confidence, 'It's Jason Baxter. He's got a beard now and more hair. It's the same man I saw in my backyard on two occasions.'[26]
39 It will also be recalled that Ben Thatcher was in police custody on 18 December 2016. He cannot have been in the applicant's backyard that night. The fact that the applicant called Ben Thatcher 'Jason Baxter' is irrelevant. The man she identified in the photoboard as her husband's killer was in police custody when the fatal acts occurred. The judge was correct to conclude these statements about this man's presence in the applicant's backyard were reasonably capable of being characterised as lies and, further, as implied admissions.
40 The applicant contended in this appeal that the statements concerning Baxter/Thatcher were equivocal, since she retreated from her position in her police interview. We consider this retreat also to be irrelevant to the issue to be determined under this ground. The initial statements concerning her husband's killer were made on or before 20 December 2016. As we have observed, the applicant was clear and unambiguous in stating to police at that time that a man was responsible for the death of her husband; she identified Ben Thatcher as that man when presented with the photoboard. The retreat from that position, once confronted with its impossibility, only came in the police interview conducted some 15 days later on 4 January 2017.[27] It is not evidence that her earlier statements on this issue were not deliberate lies.
41 As to Mr Gibson, in her statement of 20 December 2016 the applicant plainly nominated him as present in her backyard at the relevant time. She knew him previously, identified him by name, described him with acute detail right down to the colour of his eyelashes, nominated him as present and 'mouthing off' in the backyard on 18 December 2016, nominated him again as present on that night in her record of interview, and only retreated from that position when confronted with her failure to mention his strikingly obvious full-arm, white plaster cast.
42 In our view there is no merit to this aspect of ground 1. There was no error in the judge's conclusion that the applicant's statements were reasonably capable of being characterised as lies.
43 The second limb of this ground adopts the argument put at trial that proof of the lies equates to proof of guilt - the 'bootstraps argument'. As we have noted, the judge ruled that the impugned statements were 'far more than a general or bare denial of guilt by the accused'.[28] The applicant gave a highly detailed account of the events surrounding her husband's death. Proof that they were lies could be shown independently of proof of guilt.
44 In our respectful view, her Honour's analysis was plainly correct. The falsity of the accounts as to the intruders' presence and thus their activities could be proved by evidence that:
(a) Thatcher was in police custody at the relevant time;
(b) 'Gibbo' was with his son Tylah Gibson during the relevant time;
(c) 'Gibbo' was fitted with a highly prominent full-arm plaster cast at the relevant time, which was not mentioned by the applicant in any of her descriptions of 'Gibbo';
(d) the fact that Baxter was alibied by his son Tyler Baxter, and Gail and Trevor Arthur, for the relevant time; and/or
(e) the fact that there was no forensic evidence linking any of Baxter, Thatcher or 'Gibbo' to the crime scene.
45 None of these facts, if proven, proved the guilt of the applicant. Each, if proven, did no more than prove the falsity of various aspects of the applicant's accounts of her husband's death. It was unnecessary to prove that the applicant incinerated her husband in order to prove that these men were not present at the time. Their absence could be proved quite independently by the evidence set out above. The fact that proof of the lies led to a particularly powerful inference that the applicant believed she had committed the offence does not mean that the reasoning to this conclusion is circular. It may mean that it is compelling. In R v Jan Ha Le Trinh,[29] when confronted with a similar contention, Winneke P said:
It is not, I think, to the point to contend that it was her 'whole defence', any more than it would be for an accused to contend that a false alibi is a 'whole defence' to a crime alleged to have been committed by him at a particular time at a particular place.[30]
46 In her written case the applicant also advanced an argument as to the dangers of the use of the photoboard evidence in proof of the falsity of the applicant's account. This argument was expressly abandoned at trial. Further, defence counsel was content with a strong direction as to the inherent dangers in this type of identification. Such a direction was given, and no exception was taken to this direction. In these circumstances this argument must be rejected.
47 For these reasons, it was open to the jury to conclude that the statements identified by the prosecution (and set out at para [24] of these reasons) were lies without resorting to circular or 'bootstraps' reasoning. Further, it was open to the jury to conclude that by telling these lies the applicant impliedly admitted her guilt to the crime of murder. The jury would be entitled to reason that these lies were told because the applicant knew that if she told the truth it would implicate her in the murder of her husband.
Ground 2 - Verdict unsupported by the evidence
48 This proposed ground of appeal contends that the verdict of guilty cannot be supported having regard to the evidence, as the prosecution could not have excluded the reasonable possibility that it was an intruder and not the applicant who set fire to her husband.
49 This ground can be determined reasonably briefly. We accept that the dying declaration, made in the ambulance on the way to the Bendigo Hospital, provided evidence in support of the applicant's account that intruders were responsible. So, to some extent, did the evidence of the applicant's daughter. In our view, however, there was an abundance of evidence upon which the jury could have been satisfied that, in fact, the applicant was responsible.
50 In no particular order, we refer to the following matters:
(a) The fact that the substance used to douse the deceased was paint thinners. As we have said, a paint thinner tin was found in a neighbouring backyard. Evidentiary samples taken from it yielded DNA which very strongly indicated that the applicant had handled the tin. Further, the lid to the paint thinner tin was found under a dining room table in the interior of the house. The jury were entitled to reject the applicant's statements in her interview that she had never seen the paint thinner tin and that she and her husband were doused in petrol kept for the lawnmower.
(b) DNA evidence that provided no support for the proposition that either Baxter or Gibson had contributed to the several DNA samples taken from the tin.
(c) The applicant's confession to JH, in TH's hearing, that she had killed her husband. Whilst certain details of the confession cannot have been true (for example, that she had drugged the deceased and set fire to him in bed, or that he would not have felt anything), the fact remains that there was evidence before the jury that she said, 'I did it.'
(d) The body of evidence of a tumultuous marital relationship, including frequent yelling and an episode one month prior to his death where the applicant had chased the deceased man with a knife in Derwent Drive, prompting him to say that he was in fear for his life.
(e) The deceased's expressed intention to leave the marriage on the evening that he was set alight. On the same evening, neighbours heard sounds of a physical altercation coming from the applicant's house, followed by silence which lasted until the arrival of an ambulance.
(f) The incriminating conduct evidence which we have reviewed under ground 1.[31] In short, the jury could have found that the applicant lied about the entire intruder account including their identities and activities. The jury would have been entitled to conclude that the applicant lied to deflect suspicion falling upon her as the murderer, knowing that the truth would implicate her in her husband's murder.
(g) The applicant's very minor burns, which were inconsistent with her account of being doused with any inflammable substance, whether it be paint thinners or petrol.
(h) The fact that, upon examination, the clothing worn by the applicant showed no evidence of exposure to any inflammable substance such as petrol or paint thinners.
(i) The location of the seat of the fire was highly inconsistent with the account given by the applicant to police.
51 Section 276 of the Criminal Procedure Act 2009 ('CPA') relevantly provides that an appeal against conviction must be allowed if the appellant satisfies the Court that 'the verdict of the jury is unreasonable or cannot be supported having regard to the evidence'. An appellate court must ask itself 'whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty'.[32] This Court is required to make its own independent evaluation of the evidence. In discharging that task, it must give full weight to the jury's advantage in seeing and hearing the witnesses, and to the principle that the jury was the body entrusted with the principal responsibility for determining whether the prosecution has proved the guilt of the accused person.[33]
52 As we have said, we consider there was an abundance of evidence in the prosecution case that in combination pointed powerfully to the guilt of the applicant, notwithstanding the dying declaration, the applicant's post-incident statements, and its support from evidence of the applicant's daughter, DA. The applicant had approximately 30 minutes with her husband before paramedics arrived. It was to them he gave his understandably brief account. We consider, on the basis of the evidence we have reviewed, that it was open to the jury to reject that account, to reject the proposition that Jason Baxter murdered the deceased and to reject the intruder hypothesis more broadly. Our own independent evaluation of the evidence leads us to conclude that the jury were not bound to acquit the applicant. Thus, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant's guilt of the charge of murder.
53 At the hearing of these applications the applicant sought and was granted leave to add this proposed ground.
54 It is necessary to set out certain aspects of the trial and its prelude. As we have said, the applicant initially nominated Jason Baxter as the man responsible for her husband's death. This position prevailed until 4 January 2017, when the applicant was interviewed. Confronted with her misidentification, by photoboard, of Ben Thatcher as 'Jason Baxter', she then resiled from her nomination of Jason Baxter as the killer, but maintained nonetheless that an intruder was responsible: 'So I've got me identity wrong, I'm sorry, yes.'
55 When it was put to her that Ben Thatcher was in custody at that time she said, 'No, I dunno how I can explain that. But the identity, I can't explain. I really can't, about Jason or anyone else.'[34]
56 Jason Baxter did not give evidence at the committal. On 15 October 2018 he gave evidence in a Basha hearing.[35] It was not put to him that he was, in fact, responsible for the murder. At trial, defence counsel did not positively put to Baxter that he murdered Darren Reid until, after the conclusion of his cross-examination and re-examination, her Honour reminded him of his Browne v Dunn[36] obligations. Only then, on 6 November 2018, was it positively put to Jason Baxter that he had poured accelerant on Darren Reid and set him alight.
57 The applicant argued under this ground that a substantial miscarriage of justice occurred due to the failure of the prosecution to disclose, in a timely manner, relevant material on which it did not intend to rely at trial as required under the CPA.[37] The alleged failure to disclose relates to call charge records ('CCRs') for the period 18-19 December 2016 of one of two mobile phone numbers (the '350 number') belonging to Jason Baxter, which were in the informant's possession but not included in the hand-up brief nor with material disclosed in response to a defence request for further disclosure.[38]
58 The result was, so the applicant contended, that when the defence came to cross-examine Baxter at both the Basha hearing and at trial, it did so not knowing that CCRs existed which, it was contended, contradicted what the applicant described as 'key aspects of [Baxter's] testimony'. These 'key aspects' included Baxter's denials that he had been in the vicinity of 42 Derwent Drive on 18 December 2016, and his evidence that he had received various phone calls that could evidence his whereabouts at the time the murder took place.
59 The applicant submitted that Jason Baxter was both a 'viable alternative suspect' and a 'critical' prosecution witness, called to rebut the applicant's account that it was Baxter who had set fire to her husband by providing an alibi. His reliability and credibility were thus, it was submitted, 'central' to the prosecution case. The failure to disclose the CCRs before Baxter gave evidence meant that the defence cross-examination took place with the defence 'under a complete veil of ignorance' as to the availability of evidence which 'would have been forensically devastating to the credibility and reliability of [Baxter's] already fragile "alibi"'. In these circumstances, it was argued, the applicant did not receive a fair trial as it could not be contended that the CCR evidence, had it been disclosed in a timely manner, could not have made a difference to the outcome of the trial.
60 In written supplementary submissions the applicant further contended that Magistrates' Court Forms 30 and 32 filed in this case were relevant and supportive of the proposition advanced under this ground that the failure to disclose the CCRs in question constituted a substantial miscarriage of justice. Form 30[39] is a document produced by the informant before committal and is generated to provide a list of information or other documents provided in the hand-up brief. Section 110(e) of the CPA stipulates that the prosecution must also provide 'any other information, document or thing in the possession of the prosecution that is relevant to the alleged offence' but on which the prosecution does not intend to rely.[40] It is common ground that the Form 30 served in this case contained no reference to Jason Baxter's CCRs.
61 Form 32[41] provides, inter alia, a mechanism whereby the defence may request disclosure of items not included in the hand-up brief. In this case, relevantly, the defence requested production of '[a]ll call charge records relating to any telephone service monitored as part of this investigation, including any [reverse] call charge records'.[42] The applicant submitted that this amounted to a request for disclosure of Jason Baxter's CCRs.
62 The respondent contended, first, that there was no failure to make any necessary disclosure. It was submitted that the disclosure requirements under the CPA were 'prima facie' satisfied when the 'existence and basic substance' of the CCRs emerged during cross-examination of the informant, Detective Senior Constable Michael Cashman - any requirement to provide an exhaustive list for the purpose of disclosure applied only to 'relevant' material. The respondent submitted that defence counsel's failure to take up the informant's invitation to examine the CCRs when their existence did emerge was itself evidence of the fact that he himself did not view them as relevant, and provided some justification for the informant to have formed the same view. If the defence decided that evidence of Baxter's whereabouts in the time period surrounding the offence had become relevant once it was put to the informant that Baxter was an alternative suspect, the defence still had the opportunity once the CCRs' existence was disclosed, to request them and recall Baxter should it wish to put to him what the records were said to reveal about the location and timing of his phone calls.
63 The respondent further submitted that, in any case, even if the CCRs had not been properly disclosed, they were not fresh evidence (having been available at trial or capable of being discovered with reasonable diligence),[43] and as such, in order to found a substantial miscarriage of justice, they would need to be of sufficient cogency to persuade this Court either that the applicant was innocent, or that there was a reasonable doubt as to her innocence. It was submitted that the CCRs simply did not rise to this standard.
64 The respondent further contended that the applicant's claim that the CCRs could found a meaningful attack on Baxter's credibility or reliability was without substance. Neither Baxter's evidence of his own whereabouts and phone use in the relevant period - his mind was, by his own description, a methamphetamine-ravaged 'mush' at the time - nor the CCRs were sufficiently detailed or precise to reveal any inconsistencies which may have shed doubt on Baxter's alibi. The telephone records could not pinpoint Baxter's whereabouts with any more precision than that he was in Bendigo, and his evidence as to the timing of his phone calls, which were merely estimates, were only inconsistent to a minor degree. If anything, once it is accepted that Baxter could not have been expected, given his state of intoxication during the relevant period, to reliably pinpoint any exact time, his account of his movements and phone calls was in fact broadly consistent with what was revealed by the CCRs. Given the imprecision of both pieces of evidence - the CCRs as to geography and Baxter's evidence as to both geography and timing - the respondent questioned how cross-examination of Baxter as to his credit or reliability by reference to the CCRs could assist the applicant's case at all, much less whether the denial of the opportunity to do so was determinative of the outcome of the trial.
65 In response to the applicant's supplementary submissions, relating to the Forms 30 and 32, the respondent maintained the detailed submissions already made under this ground as to relevance. Insofar as the Form 32 was concerned, it contained the accused's request for disclosure of CCRs 'relating to any telephone service monitored as part of this investigation'.[44] Neither of Baxter's mobile phone numbers were ever monitored, and indeed the CCRs relating to the 350 number were not prepared until after Baxter's record of interview. It was therefore reasonable that the informant did not consider the CCRs to fall within the scope of the Form 32 request.
66 In our view there was no failure to make any necessary disclosure. Chapter 4 pt 4.4 and ch 5 pt 5.5 div 2 of the CPA govern the disclosure of relevant material upon which the prosecution does not intend to rely. The respondent was correct to contend that the applicable test for material required to be included in the Form 30 was one of relevance.[45] We consider that if Jason Baxter emerged at all as any form of 'viable alternative suspect'[46] it was only after the defence had renominated him as the murderer on 6 November 2018, having abandoned this hypothesis 22 months earlier. It is undisputed that the respondent was under a duty to disclose relevant but not relied-upon material, and, as discussed, such disclosure may be made by supplying to an accused's representatives a list of relevant material.[47] The actual material itself need not be supplied provided those representatives are put on proper notice of its existence.
67 It is clear that the obligation to disclose the existence of material to the defence does not extend to all material gathered during an investigation. The Court in Roberts v The Queen[48] described such disclosure as 'mandated by a combination of statute, prosecutorial guidelines and judicial authority'.[49] The current statutory formulation reflects common law principles,[50] which were articulated by Kirby J in Mallard v The Queen,[51] who observed that the law insists,
particularly in countries observing the accusatorial form of criminal trial, [on] the requirement that the prosecution may not suppress evidence in its possession, or available to it, material to the contested issues in the trial. It must ordinarily provide such evidence to the defence. Especially is this so where the material evidence may cast a significant light on the credibility or reliability of material prosecution witnesses or the acceptability and truthfulness of exculpatory evidence by or for the accused.[52]
68 During the 22-month period wherein neither party apparently regarded Jason Baxter as an alternative suspect, in our view, Baxter's telephone records were not 'relevant' material covered by the prosecutorial discovery obligations, as expressed in statute or at common law. Once that position changed, in our view, those records became 'relevant' material and were covered by discovery obligations.
69 On 15 November 2018, the last prosecution witness, the informant, Detective Senior Constable Cashman, was cross-examined. The following exchange was recorded:
Phone records of Jason Baxter. Any obtained?---Yes.
They're in the brief?---No.
Where are they?---In my records.
In your records. Was his phone examined?---Ah, yes.
Any results that we should know of, or - - -?---No.
None at all?---No.
Sometimes in investigations, you'd agree with me, that there's an ability when you analyse a phone to pinpoint people's location by towers. You'd agree with that?---By what, sorry?
By towers. The, the - - -?---Ah, yes.
Yes. Did you undertake that type of investigation?---From the phone records I obtained, the, the phone calls were - the closest to the actual time of the incident were some, sometime before and sometime after, nothing that immediately preceded or followed the time of the incident. Um, and the closest we could establish his phone to be, was in Bendigo.
We're not privy to any of that information, are we? The defence?---No.
Unusual, to say the least?---No.
Normally we'd get that sort of material, wouldn't we?---If requested.
70 Assuming the records were relevant at that stage, their substance was sufficiently disclosed by the informant, the prosecution had not closed their case, the records were available to be examined, and the opportunity existed for the defence to take up the invitation to do so. Baxter could have been recalled for cross-examination if it were thought appropriate. Defence counsel elected not to request access to the records and, instead, chose to criticise the police in his final address, stating, 'Jason Baxter's telephone records would have been handy.'
71 The applicant's supplementary submission that the prosecution failed to disclose the CCRs in response to a specific request for their disclosure in the Form 32 must also be rejected. As discussed, the wording contained in the Form 32 requested '[a]ll call charge records relating to any telephone service monitored as part of this investigation'. Jason Baxter's CCRs could not accurately be characterised as such as his phone number was not 'monitored' at any stage. The CCRs in question did not fall within the scope of the request.
72 For these reasons, we consider there was no obligation to disclose the CCRs during the period from 4 January to 6 November 2018. Further, any obligation that subsequently arose was satisfied on 15 November 2018 by the exchange set out at para [69]. In our view it is likely that defence counsel took the view that there was no forensic gain to be achieved in inspecting the CCRs and having Jason Baxter recalled for cross-examination, and that a better forensic outcome would be obtained by criticising the informant for failing to disclose them, which is what defence counsel did.
73 In the event that we are mistaken in this conclusion, we are of the view that the failure to disclose the records until near the end of the prosecution case, and after the cross-examination of Jason Baxter, did not lead to a miscarriage of justice in any form, let alone a substantial miscarriage of justice. We have concluded this for the following reasons:
74 It follows that we are of the view that, had the CCRs for the 350 number been provided before trial, they would not have assisted the defence in advancing the applicant's case.
76 The head sentence of 34 years' imprisonment and the non-parole period of 28 years are undoubtedly very stern for this offending.
77 The only ground in the sentence appeal is that the sentence imposed upon the applicant is manifestly excessive. Establishing this ground requires the applicant to demonstrate that the sentence imposed, absent any specifically identifiable error, is nevertheless so onerous as to be wholly outside the range of available sentences,[54] so as to bespeak error in itself.[55]
78 The applicant submitted that the sentence places undue weight on the manner of death at the expense of other sentencing considerations such as the applicant's difficult life; the fact that she had raised five children in a generally law-abiding life; and current sentencing practices in intimate partner homicides.[56] The consequence of this, so the applicant maintained, was a sentence that is crushing, disproportionate and wholly outside the range.
79 The respondent emphasised that at the plea hearing the applicant's counsel accepted the judge's description of this case as 'very much towards the top end of the scale for an example of seriousness for murder'. Counsel had also conceded that the seriousness of the offence was aggravated by each of the following factors, namely that:
(a) the death was caused by burning, which was 'an extremely brutal way to die';
(b) the killing had occurred in the presence of two of the couple's children; and
(c) the applicant had falsely blamed named intruders and continued to blame one of those asserted intruders.
80 In addition, the respondent submitted, the killing was committed in breach of the trust which exists between intimate partners. On the other hand, there was little by way of mitigation. The applicant had not pleaded guilty; there was no remorse; and it was not suggested that there was any impairment of mental functioning which might attract Verdins considerations.
[T]he manner in which you murdered Mr Reid was vicious. You knowingly poured a highly flammable liquid on Mr Reid. You could not have been ignorant of the unbelievable terror and pain you would unleash upon him the moment you ignited the fuel. As the Court of Appeal has stated:
[I]t would be a futile exercise to attempt to imagine a death that more appals the conscience than death by burning. It is a form of death likely, in common knowledge, to be accompanied by extreme pain ... [It has been] aptly described ... as a form of death 'so brutal as to be beyond the understanding of most civilised human beings'.
Your behaviour was barbarous. Mr Reid remained conscious throughout the ordeal. He was conscious as he was on fire and for the 30 minutes he was in the bath prior to arrival of the paramedics. He remained conscious as his clothes, which had burnt into his skin, were cut from him, as he was wrapped in glad wrap and placed in a wheelchair, and as he was transported to Bendigo Base Hospital. His last conscious hours were of agony and passed in the belief he would die.[59]
82 Her Honour noted that the applicant had given a false version of events to emergency service workers, the deceased's family, the media and the police, as a result of which Messrs Gibson, Baxter and Anderson were arrested on suspicion of murder.[60] 'The real wickedness of that falsity is that you named the man you claimed to have witnessed throwing fuel over Mr Reid and igniting it with a cigarette lighter.'[61] The lies were 'extensive and elaborate'.[62] The applicant was 'vociferous and malicious in ... laying [her] trail of deceit'.[63] Eight victim impact statements depicted 'almost unbearable grief'[64] and 'shattered lives'.[65]
Mr Reid was your partner of some decades and the father of your five children. Whatever the state of your relationship in December 2016, whether you knew Mr Reid was going to leave or not, however angry you might have been, Mr Reid had a right to be safe in his own home and, above all, to be safe from violence from you. Your actions are a violation of the sanctity of the home and a massive breach of trust. Domestic murder is abhorrent. It is the ultimate act of family violence.
[Further], your merciless conduct towards your intimate partner occurred while two of your daughters were home. They were aged just 16 and 11. You were utterly indifferent to the effect your brutal act would have upon them. While neither saw you commit the murderous act, each witnessed the distressing immediate consequences of it. Your 16-year-old saw her father, engulfed in fire, pass through the house and into the bath. She heard him say that he would die. Your 11-year-old saw the trail of burnt debris that Mr Reid had left as he made his way to the bathroom. At that age she had to run to a neighbour to say that her father was on fire and ask for help.
And, although neither had witnessed the actual incident, your two daughters both told police that Jason Baxter had caused the fire. The only reasonable inference to draw is that they did so under your influence.[66]
84 Scant material relating to the applicant's personal circumstances was placed before the Court. The judge noted that the applicant was 39 years old at the time of offending, grew up as one of six children in West Heidelberg, had an untroubled childhood, completed a massage course after completing secondary school, and had her first child at age 21. She had been in an intimate relationship with Mr Reid since the early 1990s and the couple had five children together.[67] The applicant had a minor and irrelevant criminal history[68] and no issues with drugs or alcohol.[69] She had developed a mood disturbance since being imprisoned but had no pre-existing psychiatric or psychological condition.[70]
85 The judge noted the need for the sentence to incorporate condemnation and punishment for the applicant's conduct. This was, her Honour stated, a particularly serious example of the crime of murder that called for denunciation and deterrence both specific and general. Protection of the community was also a relevant consideration.[71] The judge considered that the applicant had no remorse for her actions and, on the basis of the limited information supplied, characterised her prospects of rehabilitation as 'not bad'.[72]
Your actions were despicable. For no obvious reason, you ended the life of the man you say you loved in an excruciating manner, making him suffer unimaginable pain and fixing him with the belief he would die. You did so in the sanctity of the family home and while two of his children were close by. You invented a patently false story and perpetuated it as far and wide as possible, thereby ensnaring three innocent men in a murder investigation.[73]
87 We can discern no error in the heavy sentence imposed in this case. The judge was entirely justified in her use of adjectives such as 'vicious', 'barbarous', 'merciless', 'malicious', 'wicked', 'abhorrent' to describe the applicant's conduct. There was no challenge to her Honour's finding that both the objective gravity of her conduct and her moral culpability were extremely high.
88 Given the multiple aggravating features, the absence of remorse or contrition in any form, and the absence of any psychiatric or psychological explanation for this appalling crime, her Honour had little alternative but to impose a very stern sentence. As her Honour said, domestic murder is the ultimate act of family violence and must be strongly condemned.
89 There was, as the respondent emphasised, little on which the applicant could rely by way of mitigation. In particular, she was not entitled to any discount for pleading guilty. Having reviewed other sentencing decisions in cases of comparable seriousness,[74] we are not persuaded that the sentence is wholly outside the range of sentences reasonably open to the judge in sentencing this offender for this offending.
[2] He had been at his home in Energetic Street, Long Gully. His son gave evidence that he had observed his father asleep on the lounge room couch at midnight.
[4] It was 100 billion times more likely that Darren Reid was a contributor to each of the three samples than another person selected at random.
[5] It was 39,000 times more likely that Kate Stone was a contributor to the handle sample than another person selected at random, and this was 8,600 times more likely with respect to the first side and base sample. Kate Stone was excluded as a contributor to the second side and base sample, taken from different areas.
[9] Evidence of Nanar Htoo and Manaylar Lar.
[10] Evidence of Nanar Htoo and Manaylar Lar.
[12] Jury Directions Act 2015 s 20(b) (the 'Act'); R v Stone (Ruling No 2) [2018] VSC 626, [22] ('Ruling').
[21] Including, but not limited to, 'the forensic evidence of the fire scene examination, evidence that at the relevant time the backyard was in darkness, and the alleged admissions made by the accused to neighbours a few days after the incident'.
[24] Though on the appeal the order of the argument was inverted.
[32] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ).
[33] Sir Patrick Devlin, Trial By Jury (Stevens and Sons, 1956) 80. See also Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 440 (Latham CJ); Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, 215 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); R v Ali (1981) 6 A Crim R 161, 164 (Street CJ).
[35] Since abolished by s 198C of the CPA and replaced by the procedure outlined in s 198B of that Act.
[38] See CPA s 119(e). See below [60]-[61].
[39] Created under r 46 of the Magistrates' Court Criminal Procedure Rules 2019 ('Magistrates' Court Rules') and s 110 of the CPA.
[41] Created under r 48 of the Magistrates' Court Rules and s 119 of the CPA.
[43] See Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510, 516 (Barwick CJ).
[49] Ibid 444 [57] (Osborn and T Forrest JJA and Taylor AJA).
[53] Which, we consider, could have amounted to a useful forensic tool in cross-examination.
[54] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA), quoted in Lim v The Queen [2019] VSCA 182, [60] (T Forrest JA and Croucher AJA); Begg v The Queen [2020] VSCA 183, [53] (Priest, Tate and T Forrest JJA).
[55] Atem v The Queen [2020] VSCA 35, [48] (Tate, McLeish and Weinberg JJA).
[56] The applicant referred to DPP v Azizi [2013] VSC 16; R v Browning [2015] VSC 556 ('Browning'); R v Davsanoglu [2019] VSC 332; Chalmers v The Queen [2011] VSCA 436; R v Mocenigo [2012] VSC 599; R v Bufton [2019] VSC 621.
[57] R v Stone [2019] VSC 452, [9] ('Reasons').
[74] Hopkins v The Queen [2015] VSCA 174; R v Paulino [2017] VSC 794; R v Cameron [2020] VSC 334; R v Leigh [2019] VSC 378; R v Brown [2018] VSC 742.
Stone
The Queen [2021] VSCA 186
(2011) 32 VR 361
(2020) 60 VR 431
(1945) 71 CLR 430
(1990) 171 CLR 207
(1974) 131 CLR 510
(1994) 181 CLR 487
(2005) 224 CLR 125