R v Hettiarachchi; DPP v Hettiarachchi [2009] VSCA 270 (27 November 2009)

Last Updated: 30 November 2009

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No 515 of 2008
	v
SARATH HETTIARACHCHI
	No 516 of 2008
	DIRECTOR OF PUBLIC PROSECUTIONS
v
SARATH HETTIARACHCHI

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JUDGES	NETTLE and WEINBERG JJA and HOLLINGWORTH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	26 October 2009
DATE OF JUDGMENT	27 November 2009
MEDIUM NEUTRAL CITATION	[2009] VSCA 270
JUDGMENT APPEALED FROM	[2007] VSC 541 (King J)

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CRIMINAL LAW – Conviction – Murder – Evidence – Relationship evidence – Whether judge erred by allowing Crown to adduce evidence of the applicant’s bad character – Directions to jury – Meaning of reasonable doubt – Whether direction that ‘beyond reasonable doubt does not mean fanciful’ was productive of injustice – Appeal dismissed.

CRIMINAL LAW – Sentencing – Crown appeal – Cumulation – Murder of elderly couple by son-in-law – Whether five years’ cumulation when victims were elderly and defenceless manifestly inadequate – No error demonstrated – Appeal dismissed.

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Appearances:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant/ Respondent	Mr P F Tehan QC with Mr C B Boyce	Slades & Parsons

NETTLE JA

WEINBERG JA

HOLLINGWORTH AJA:

1 Following a trial in the Criminal Division of the Supreme Court of Victoria, on 5 November 2007 the applicant was convicted of two counts of murder and later sentenced to a total effective sentence of 27 years’ imprisonment with a non-parole period of 22 years. He now applies for leave to appeal against conviction. There is also an appeal by the Director of Public Prosecutions against sentence on the ground of manifest inadequacy.

The Crown case at trial

2 The applicant was born in Sri Lanka on 30 January 1960 where he later qualified as an electronics technician. He emigrated to this country in 1988 and worked here as a taxi driver. In 1989, his family made arrangements for him to marry Badrakanthi Geethika (‘Badra’). She was 28 years old and still in the process of completing a Bachelor of Arts degree, specialising in sociology, at the University of Colombo. She had begun the course in 1984 but the university had closed for a number of years due to civil war and that had extended the length of her course. The applicant met her for the first time in Sri Lanka on 10 February 1990 and they were married two weeks later, on 22 February 1990, with a further wedding ceremony on 24 February.

3 On 25 February 1990, the applicant returned to Australia without his wife. At that stage, the parties were still in discussions over Badra’s dowry - a block of land held in her name in Sri Lanka – and for the next three years she remained in Sri Lanka employed in the Sri Lankan civil service without contact with the applicant. In that time she was free to do and spend her money as she chose, without control or direction by the applicant.

4 In October 1994, Badra joined the applicant in Australia and brought with her many gifts from her family and friends. The applicant collected her at the airport and took her to what was to be their marital home at Flat 3, 15 Poplar Grove, Carnegie. She claimed that, when they got there, he threw out all her possessions except for her clothes and jewellery and, from that point on, he exercised very close control over her. She said that, for the first 12 months, he barred her from leaving the house because he said that the Australian climate was harmful and that she must stay inside.

5 After the first 12 months, he sent her off to look for work but forbade her from office work. She claimed that he put her out of the house each morning at about 8.00 am with a Metcard and told her not to return until about 5.00 or 6.00 pm in the evening. She said that, if she did return early, he used to punish her and that he also punished her for failing to find a job. Eventually, she secured a factory job and began work as a machinist. She said, however, that the applicant took control of all her earnings. He required that they be paid into a joint account and that she record them and her expenditure in a book which he scrutinized each weekend.

6 In 1998, they bought a block of land at 11 Pauline Court, Hallam, and built a house on it. They moved into it on 1 April 1999. At that stage, she was earning $480.00 a week as a sewing machinist, and he was working as a taxi driver. She said that he continued to control her, however, and to punish her for what he considered to be her transgressions. He did not disclose the amount of his earnings to her. In 1999, her dowry was sold and the proceeds were used to furnish their house.

7 In September 2000, she bore the applicant a son, Ryan. He suffered from developmental delay. At the age of five, he was functioning at the level of a child of only 18 months. After Ryan’s birth, the relationship between the applicant and Badra worsened. Badra said that the applicant frequently assaulted her by hitting her and kicking her.

8 In 2002, Badra took Ryan to Sri Lanka to visit her parents. The fare was paid by her father.

9 On 11 February 2003, Badra determined to leave the applicant and to seek an intervention order. She was awarded an interim intervention order and moved into a women’s refuge. But the applicant refused to allow her to take Ryan and, according to her, he said that, if she did take Ryan, he would kill her and go to gaol.

10 In July 2003, the intervention order was confirmed and Badra was put into transitional housing and then moved to medium term accommodation. At that stage, she was also given access to Ryan for three days a week. The ‘drop-off point’ for access was the Malvern Police Station and, on one occasion after the drop-off, the applicant followed her from there to her address. According to her, he grabbed her keys and mobile telephone and let himself into the premises.

11 Consequent upon that incident, she applied for a second intervention order but later reached a rapprochement with the applicant. On 15 July 2003, the intervention order was revoked by consent. She later claimed that it was revoked at his command, but in any event she moved back to 11 Pauline Court, Hallam with the applicant and the relationship continued for some time on a more or less satisfactory basis. Among other things, she was permitted for the first time to have telephone contact with her parents in Sri Lanka, with whom she then spoke on a fortnightly basis.

12 In early 2005, she fell pregnant again but, at much the same time as her pregnancy was confirmed, the applicant was diagnosed as suffering from type 2 diabetes. During her second pregnancy, she asked the applicant if she could invite her parents to Australia for a visit after the baby’s birth and the applicant agreed. The costs of the journey were to be met by Badra’s siblings.

13 A daughter, Rosie, was born on 25 October 2005 but it was said that the applicant rejected Rosie. For some reason, he blamed her for his diabetes. Soon after her birth he stopped working as a taxi driver.

14 Badra’s parents, Hettiarachchige Sammy Perera (‘Sammy’) and Thuppige Donna Sommey Iranganie Perera (‘Iranganie’), arrived in Melbourne on 22 February 2006. It was intended that they should stay for the duration of their visit with the applicant and Badra. The applicant collected them from the airport and, for the first couple of days, behaved civilly towards them. According to Badra, he then started to denounce her to them. She said that on one occasion Iranganie responded by saying that, if the applicant did not like Badra, he could divorce her. On another occasion, the applicant asked Sammy and Iranganie why they were staying in his house and instructed Badra to collect $200.00 a week rent from them.

15 On Sunday 5 March 2006, the applicant took Badra to an ATM and withdrew all of her Centrelink benefits. She said that he then took the money to a supermarket and bought food for himself and Ryan but none for anyone else in the house.

16 On the morning of 6 March 2006, Sammy and Iranganie saw that Badra had only a cup of tea for breakfast and Sammy told the applicant that he should treat his wife better than that. Badra gave two different versions of the events which followed. In one, she said that Sammy’s question led to an emotional argument. In the other, she said that there was just a friendly conversation, without any shouting, during which the applicant remained silent.

17 Either way, however, at about 10.00 am Badra called Zehra Yalgin at the Women’s Liberation Halfway House and asked whether she could obtain accommodation in the women’s refuge for herself and her parents. Ms Yalgin told her that it would not be possible, because men were not allowed to stay in the refuge, but that she would look for transitional housing for them. Ms Yalgin later mentioned the matter to the Halfway House co-ordinator, Marcella Posteraro, and, as a result of that, Ms Posteraro telephoned Badra and explained her options to her. She told Badra that they included a sole occupancy interim intervention order, which would require the applicant to leave the matrimonial home, and Badra said that she would take that option.

18 At 1.00 pm Badra and her parents arrived at the public counter of the Dandenong Magistrates’ Court registry. They were attended to by the Deputy Registrar, Linda Anne Morrison. Ms Morrison gave them a form to fill out. She said that Badra repeatedly told her that she was frightened of the applicant and that, although he had not assaulted her on this occasion, she was frightened that he would do so again. Ms Morrison said that the answers which Badra gave to her questions made her sufficiently alarmed to make an appointment for Badra to come back on the same day, and she told her to come back to the counter after 2.00 pm.

19 At 2.15 pm Badra and her parents returned to the registry counter and Ms Morrison commenced preparation of a complaint and summons for an intervention order returnable on 20 March 2006. The application sought, among other relief, that the applicant be prohibited from ‘Knowingly being at or within 200 metres of ... 11 Pauline Court, Hallam’. Ms Morrison then referred Badra to a Magistrate who made an interim intervention order until 20 March 2006 but without the condition requiring the applicant to leave the premises. Badra and her parents returned to 11 Pauline Court, Hallam.

20 The police mistook the interim intervention order as requiring the applicant to leave 11 Pauline Court, Hallam forthwith. Consequently, two police officers went to the premises the following day shortly after 12.00 pm to evict the applicant.

21 When they arrived, the applicant was in the shower. When he came out, they handed him the order and the complaint and summons and told him that he was required to leave the premises. He asked if he could read the documents and then sat down at a table and did so. He said that all the belongings were his and that he wanted to get a truck to pick them up. They said that it would not be possible and advised him to seek legal advice from a solicitor. They told him that he should take enough of his personal belongings to get him through the next couple of days, until they could sort out the property issues. He said that he wanted to take Ryan with him. They told him that he could not but that the return date for the order was 20 March 2006 and that he could attend court then and put his case. He asked where he might find a solicitor and one of the officers answered that there were many solicitors’ offices in Foster Street, near the Dandenong Magistrates’ Court, from which he could make a selection. The police officers also told the applicant that he would be referred to a men’s referral service for counselling and assistance.

22 After those discussions, the police noted that the applicant seemed to be relatively calm. They watched him gather up some personal items and clothing from a walk-in wardrobe and put them into plastic shopping bags. They saw him take a plastic bottle filled with water, some books and some Panadol from a kitchen drawer. One of the police officers also noticed the applicant pick up a pair of spectacles from the dining table and put them in a shirt pocket, and then a wallet and mobile telephone, and put those in his trouser pockets. The police officer noticed that the mobile telephone was coloured silver grey.

23 There was a short delay while Badra moved her car to allow the applicant to drive his vehicle out of the driveway and then the police officers saw him go to his car and drive away at 12.36 pm. They followed in their police car until the applicant’s car turned right out of Pauline Court onto Hinrichsen Drive and then left onto Princes Highway. After that, they lost sight of him.

24 Meanwhile, Badra had moved her car back into the driveway, gone back into the house and locked the doors. She gave evidence at the trial that her parents, her children, and herself were then gathered in the lounge room. She said that her father, Sammy, sat with Rosie on his lap in an armchair opposite the front door and that she sat in another armchair next to the telephone and endeavoured to call Ms Posteraro, the Halfway House co-ordinator, to have the locks changed. Ryan was at the front window. She said that she then heard the front door being opened with a key and saw the applicant come into the house. He told her to put down the telephone, which she did. After that she took up a position between the front door and her father and she said that her mother came and stood near the master bedroom door. Sammy remained in his chair, still holding Rosie in his arms, and no-one said anything.

25 According to Badra, the applicant then went to the kitchen without speaking and came out carrying a kitchen knife in each hand with his fists clenched around the handles and the blades pointed down. She said that she saw him move to Sammy, put both knives in one hand and push Rosie aside, and then plunge one of the knives into her father’s chest. She said that she closed her eyes at that point and that when she opened them again she saw the applicant stabbing her mother in the mouth. She also saw the applicant’s spectacles fall out of his shirt pocket onto the floor. Then her mother ran to the front door while the applicant continued to stab her, and finally collapsed on the ground outside the front door with blood coming from her mouth. With that, the applicant put down the knives on the ground next to Iranganie and ran away.

26 Badra said that she saw that her mother was still breathing and called 000. The call was timed at 12.42 pm and the ambulance arrived at 12.48 pm. Sammy was still in the armchair in the lounge room, gasping and gurgling, but he later stopped breathing. Iranganie had already stopped breathing and could not be revived. Police said that Badra appeared to be in a state of shock. They noted that she had a little blood on her, which made her a suspect, but that there were strong indications she was not the culprit. One was the presence of a large amount of blood on the knives, which the police said implied that there would have been a lot of blood on the killer. There were also the applicant’s spectacles on the floor, with a bent frame and one lens missing, the loose lens lay nearby against the leg of a plastic child’s chair, and a silver grey mobile telephone.

27 At between 1.00 and 1.10 pm the applicant entered the office of a solicitor in Foster Street, Dandenong and identified himself. A legal secretary, Prudence Crawford, then filled out an application for legal assistance for him, which took about 45 minutes, during which the applicant seemed to her to be calm albeit anxious to see a solicitor. She noted that the applicant was wearing a long sleeved light blue shirt with a white collar and that there were some droplets of blood on his right hand cuff. Her disgust at the sight of the blood later led her to throw away the pen which was used to fill in the application.

28 The applicant went to another solicitor’s office some time between 1.30 and 1.40 pm but virtually upon arrival he said that he just could not think, and then he left. He was noticed to be wearing a blue shirt with a white collar but it was not noticed whether it had blood on the cuff.

29 The applicant returned to the first solicitor’s offices at 3.00 pm, apparently still wearing the same clothes. He was unable to see a solicitor there. Then he returned to the second solicitor’s offices at some time after 3.00 pm, at which time he was noted to be wearing a dark charcoal gray jacket with a buttoned up front and long sleeves. After a time, the secretary told him that the solicitor could not be reached that day and she suggested that he go to the legal aid office.

30 The applicant arrived at the Dandenong Legal Aid Office at between 3.30 pm and 4.00 pm and handed over a copy of the interim intervention order and asked to speak to a lawyer. He was told that none were present but was given a list of other solicitors whom he might consult. He appeared to read the list and was noted not to be wearing spectacles.

31 At 5.15 pm the applicant went to a motel on Princess Highway, Oakleigh, but left when told that a room would cost $65.00 for the night. Later he went to another and was told that the tariff would be $205.00. As he drove away from that hotel he was intercepted by police, who had been looking for him at hotels, and he was arrested.

32 When interviewed by police, he denied returning to the house after being evicted, and he denied that he had killed the deceased. He claimed that his wife had done it and that she was insane. Subsequent forensic examinations showed that there was blood on his shoes and that the DNA profile extracted from the blood matched the DNA profile of the deceased, Iranganie Perera. No match could be found on Badra.

Grounds of appeal

33 We propose to deal first with the grounds in support of the application for leave to appeal against conviction in the order set out below.

Ground 2 – Relationship evidence

34 During the trial, a great deal of evidence was given as to the nature of the relationship between the applicant and Badra. It started with the evidence in-chief of Chandra Mendis, who was the applicant’s aunt. The prosecutor asked Ms Mendis whether she had been able to observe the relationship between the applicant and Badra and Ms Mendis answered:

They were together but I can’t say it’s a very friendly, loving, but just they live there but not fighting at all in front of me. Just living. Just live together. I can’t tell it’s fighting or anything, I didn’t see any fighting or anything.

35 In response to a question as to whether applicant had told Ms Mendis how he felt about his parents-in-law being in his house, Ms Mendis answered:

Not really. He wasn’t happy – he wasn’t happy from the beginning with the mother-in-law and father-in-law.

HER HONOUR: How do you know that? - - - Because the way he talked ‘I don’t like them, I don’t like them’ he’s telling me.

How long had you been aware – how long had he been saying that to you? - - - Because his wife was in hospital, I went to see her. That time the wife told me ‘mother and father is going to come to Australia. Sarath is not happy about that’ so then I just thought oh, maybe – because she told me Sarath is sending letters to the Immigration to stop.

36 Defence counsel then cross-examined her as follows:

COUNSEL: Mrs Mendis, have you ever seen any violence in the Hettiarachchi home? - - - No, I didn’t see any.

COUNSEL: Have you ever seen Sarath be violent to anyone? - - - No.

37 The next witness, Sandya Dilrukshi Hettiarachchi, was the applicant’s cousin and was asked in chief about a telephone conversation she had had with the applicant not long before the killing, in which the applicant said that he was unhappy with his parents-in-law, with whom he was arguing, and that he could not stay in the house.

38 Defence counsel then cross-examined as follows:

COUNSEL: Do you believe that your cousin, Sarath, was a violent man?

HER HONOUR: How do you ask that?

COUNSEL: I withdraw that, your Honour. (To witness) Have you ever seen him be a violent man? - - - No, I never see.

39 A short time later, in the absence of the jury, the prosecutor submitted that the effect of defence counsel’s cross-examination had been to present the applicant as a non-violent person, and the prosecutor informed the judge that, in those circumstances, he would need to consider whether to adduce evidence of the violence with which the applicant had acted towards Badra during their marriage.

40 Evidently, the judge was of the same view, and so cautioned defence counsel in effect that, if he persisted with that line of questioning, he would be taken to have put the applicant’s character in issue. That led to this exchange with defence counsel:

HER HONOUR: Can I ask what the purpose is in going there, Mr Tyrrell?

...

COUNSEL: Yes, it’s quite obviously, your Honour. In my submission this man has been submitted by the Crown as being so violent that he murders people. Now, it’s obvious that these last two witnesses have been called in to cast some form of aspersion on my client’s character with regard to his parents-in-law and it seemed - - -

...

HER HONOUR: I didn’t hear them casting any aspersions on your client’s character.

COUNSEL: To say that he doesn’t like his parents-in-law is an aspersion against his character with regard - - -

HER HONOUR: Not it’s not. That’s a fact. A fact in issue is it not?

COUNSEL: As a fact in issue then rather than an aspersion, as a fact in issue going to that point, then the obvious and the logical lead for that is that he doesn’t like them to the extent that he murdered them and that’s being a violent act. It was then open to me to ask these witnesses have they ever seen any violence from him and the answer was clearly no.

HER HONOUR: Do you understand what you’ve opened?

COUNSEL: Yes, I do.

HER HONOUR: You do?

COUNSEL: Yes, I do, your Honour, yes. As far as those witnesses are concerned. My learned friend says that he’s flummoxed or he – it’s up to him where he goes with whatever prior things have happened and I can duly treat those when they come up but as far as me opening something, it’s been opened to the jury that this man is a violent man to the extent that he’s murdered people and there’s no other reason to put to these previous two witnesses in my view that he doesn’t like his parents-in-law - - -

HER HONOUR: That’s a demonstration of something going towards motive. Now, what you’ve opened as a result of your questions is that the Crown can lead evidence as to his violent nature in the past. I consider that incredibly more prejudicial than what - - -

COUNSEL: That’s for the Crown if they want to do that, your Honour, but I can also - - -

HER HONOUR: Once you open it, I mean I - - -

COUNSEL: I can also change it, your Honour. You know there’s sufficient evidence within the brief to say that the wife has said it [scil. that the applicant had been violent] to some people and then she’s retracted it on other occasions. So this can also go to the wife’s credit as well so my learned friend will no doubt need to review all of that.

HER HONOUR: Problem is it might – you’re going to have another trial within a trial, that’s the problem.

COUNSEL: That’s up to my learned friend how he wants to deal with it and certainly - - -

HER HONOUR: No, once you open it, Mr Tyrell, it’s then a matter the Crown has to deal with.

COUNSEL: That’s their choice, your Honour.

HER HONOUR: Yes. So long as you’re fully aware of the consequences of what it is that you do.

COUNSEL: I am aware, your Honour, thank you.

41 Following that exchange, a number of witnesses gave evidence, without objection, concerning the relationship between the applicant and Badra. It included evidence of Zehra Yalgin and Senior Constable Tracey Arnold of the allegations made by Badra in her applications for the two intervention orders, and evidence of Badra as to the violence which she said the applicant had inflicted on her during their marriage.

42 Under cover of Ground 2, it was contended that the judge erred in allowing the Crown to adduce evidence of the applicant’s bad character, either on the basis that her Honour was wrong to accept that defence counsel’s cross-examination of Ms Mendis and Ms Sandya Hettiarachchi put the applicant’s character in issue; or, alternatively, it was submitted, because the judge was bound to exclude the evidence in the exercise of her discretion.

43 We reject those contentions. Dealing first with the question of whether the cross-examination of Ms Mendis and Ms Sandya Hettiarachchi put the applicant’s character in issue, we think it clear that it did. The question was to be decided in the context of the defence generally and the issues which were raised.[1] Here the defence generally was that it was reasonably possible that Badra killed the deceased and, therefore, there was a reasonable doubt as to whether the applicant killed them. The effect of the cross-examination of Ms Mendis and Ms Sandya Hettiarachchi was to raise as an issue in that defence whether the applicant was generally so little given to violence as to be unlikely to commit the sort of violent murders with which he was charged.

44 It is true that defence counsel did not enquire of either witness in terms of whether the applicant was a man of good character. But, for present purposes, evidence of good character includes evidence of disposition as much as reputation.[2] It also includes evidence that an accused’s antecedents are such that he is unlikely to have committed the acts with which he is charged.[3] Consequently, by seeking to elicit from Ms Mendis and Ms Sandya Hettiarachchi that the applicant was not a violent man, defence counsel put in issue whether the applicant was of a sufficiently violent disposition to have committed the murders with which he was charged, and thereby made relevant and admissible the evidence adduced by the Crown that the applicant was a man of violent disposition.[4]

45 As to the judge’s failure to exclude the evidence of violence in the exercise of her discretion, the question was one of fairness. Ordinarily the principal consideration in the assessment of what is fair in those circumstances is the advantage gained by the applicant by the steps taken on his behalf to demonstrate his non-violent disposition compared to the prejudice likely to be suffered by the applicant by reason of the evidence of violent disposition adduced by the Crown. As Brooking J stated in R v Perrier (No 1):[5]

The discretion is at large, but the primary exclusionary rule is a factor always relevant to its exercise: Phillips, at p. 54. Since the accused is seeking to have excluded admissible evidence in the exercise of the discretion to exclude evidence on the ground of unfairness, it will be for him to satisfy the judge that the evidence should be excluded.

...

Where the accused suggests he is of good character and the Crown proposes to tender evidence of previous convictions [or, I interpolate, other evidence of bad character], a highly important consideration in exercising the discretion is the relative weight of on the one hand the advantage gained by the accused by the steps which have been taken by him or on his behalf in an endeavour to show his good character, and on the other hand the degree of prejudice which may result to the accused from proof of the prior convictions. This is a matter considered in Donnini v R (1972) 128 CLR 114...[6]

46 In this case, however, there was also the consideration that the applicant chose to put his character in issue as part of the defence strategy.

47 As has been noted, where an accused puts his character in issue and seeks exclusion of rebuttal evidence of bad character, it is for the accused to persuade the judge that it would be unfair to receive the evidence of bad character. But here, so far from seeking to persuade the judge that the evidence should be excluded, it was defence counsel’s strategy to have that evidence put before the jury in support of the defence contention that Badra was so disenchanted with the marriage which her parents had arranged for her that she had reason to kill them. Thus, as defence counsel told the jury in the course of final address:

It’s put to you as an hypothesis, what you’re seeing is not beyond the realms of this case. This type of thing happens. This hypothesis that Badra Hettiarachchi killed her parents is not put to you that she planned her parents’ trip to get them out here so she can murder them. It’s not a premeditated act. It’s quite possible that it was one of desperation. It’s quite possible that it was one on the spur of the moment – the heat of the moment because that’s all it takes...

...

... Where is she according to this? ... She’s inside the house. Who do you believe? The two independent police officers, what they saw when they got there objectively or Mrs Hettiarachchi?

What did you hear about the background of Mrs Hettiarachchi? Normally you don’t hear background of violence and things like that. They normally don’t relate to these matters and you in fact heard me encourage, I wanted this to come up, I wanted you to hear about the relationship between these two people. It’s sometimes termed bad character evidence about Mr Hettiarachchi. (Emphasis added).

...

What we have is a young lady in her late 20s, not married, not looking for a husband living in Sri Lanka.

...

She’s got a good job, she’s got good money, good pay. She told you and this would obviously be [the] way in the future that she had a good pension plan...

Then the Hettiarachchis put out an ad for a wife....

She told you that she wasn’t interested in marriage at that stage and why would she be? She was not looking for a husband, her sister was, but her mother put her forward to the Hettiarachchis in the advertisement.

...

You saw her in the witness box. Cool, calm, precise in what she gave in her evidence...

...

She said at different stages to the police and in evidence – you remember in her statement I asked her ‘You said there was a fight?’ ‘No, there was no fight’. ‘There was an argument?’ ‘No, no, no, my father didn’t argue, he was friendly, he told him [the applicant] in a fatherly sort of way you should treat your wife better’.

Then there was an argument with her father. She said that there was an angry exchange in her statement and then not. Important. She hears what she says at one stage, she says something else...

...

... Todd Mortimer and his father heard a loud argument between a male and a female that day, just before the ambulance and the police arrived. Mrs Hettiarachchi said it was definitely not [the applicant]. He did not argue with anybody. Someone was having an argument in that house. It was a male voice. It wasn’t [the applicant’s].

Was it Mrs Hettiarachchi arguing with her father?...

...

... You remember that Mrs Hettiarachchi said that when her father was talking to her husband about these things she said that her father had actually caused me more problems by doing that. Now, she wasn’t happy with her life at all. ... but she wasn’t happy with her lot in life. An arranged marriage, had to leave what I’ve discussed with you, come to Australia, and then put up with being controlled. She didn’t like that at all. (Emphasis added)

Her father, was it he that she was arguing with? We know it wasn’t [the applicant] that argued in that house. Mrs Hettiarachchi has told you that...

...

Mrs Hettiarachchi had more blood on her than [the applicant] when he was arrested. That’s curious, isn’t it?

Beyond reasonable doubt. It’s not a matter of picking who killed these people – was it him or was it her? That’s not your role.

48 It might be thought that the defence strategy was risky. Arguably, such advantage as was derived from the cross-examination of Ms Mendis and Ms Sandya Hettiarachchi was outweighed by the prejudicial effect of the material tendered by the Crown in rebuttal. A more cautious approach would have been to say nothing about the applicant’s propensity for violence and so to avoid the bulk of the relationship evidence which the Crown put in. But lack of caution is not usually a reason for excluding otherwise admissible bad character evidence.[7] Nor is it contended, and we do not think it properly could be, that competent counsel would not have run the defence in the fashion it was conducted.[8] It might have been risky but, given the circumstances of the killings and the strength of the Crown case, it is hard to conceive of any other strategy which would have offered the applicant a better prospect of acquittal.

49 In any event, as McHugh J said in Suresh v The Queen:[9]

Having regard to the way in which the case was conducted, it is impossible to conclude that the admission of the ... evidence constituted a miscarriage of justice. The evidence was admitted without objection because it was perceived to be highly supportive of the defence theory of the case. Other counsel may have elected to fight the case on a different basis from that selected by the appellant's counsel, but no one could reasonably say that a competent counsel would not have run the case in the way that defence counsel ran it at the trial.

The appellant wanted the evidence ... to be admitted because its admission was perceived as giving the appellant a better chance of acquittal than if the tender of the evidence had been rejected. The admission of the [evidence] therefore did not deny the accused a fair trial or result in a miscarriage of justice. On the contrary, by not objecting to the admission of the [evidence] and then using it to support the defence theory of the case, the appellant exercised his right to a fair trial. It would undermine the system of adversarial criminal justice if the admission of technically inadmissible evidence, not objected to for rational forensic reasons, could result in the quashing of a conviction because the forensic tactics had failed to bring about the accused's acquittal.[10]

50 Inasmuch as defence counsel wanted the relationship evidence to be admitted (because it was perceived as giving the applicant a better chance of acquittal), it was not unfair to admit it even though, if a different defence strategy had been adopted, it may have been excluded. It follows in our view that Ground 2 fails.

Ground 1 – Directions on reasonable doubt

51 The complaint under Ground 1 was that, when directing the jury on the standard of proof which applies to a criminal trial, the judge told the jury that ‘beyond reasonable doubt does not mean fanciful but just beyond reasonable doubt’. It was submitted for the applicant that the judge thereby engaged in a forbidden analysis of the conception of reasonable doubt and so caused a miscarriage of justice. In particular, it was said that, by contrasting ‘reasonable doubt’ with what was ‘fanciful’, her Honour in effect committed the same error as was held in R v Wilson, Tchorz and Young[11] to be productive of injustice.

52 We do not accept that contention. We allow that it would have been preferable if the judge had not attempted to explain what was meant by ‘reasonable doubt’. The law is clear that a trial judge should not attempt to explain or define reasonable doubt,[12] and that ‘if amplification is required, it should go no further than to tell the jury that a reasonable doubt is one which they, as reasonable persons, are prepared to entertain’.[13] In the face of that clear body of authority, her Honour’s reference to ‘fanciful’ was unnecessary and undesirable. But, in this case, it does not appear to us to have been productive of injustice.

53 As the High Court observed in Green v The Queen,[14] there are cases where, despite the proscription of attempts to explain the meaning of reasonable doubt, a judge can properly instruct a jury that ‘fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt’.[15] As was said in Green, one such case is where defence counsel in final address labours the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought not be regarded as affording a reason for doubt. King CJ made the same point in Wilson, and in R v Chatzidimitriou[16] Callaway JA suggested that, in an appropriate case, a judge could warn a jury against entertaining fanciful or unreal possibilities.[17]

54 It may be that the judge in this case was concerned by suggestions of fanciful possibilities. Defence counsel raised a couple of possibilities in final address which we think could well be regarded as far-fetched. One was that the blood of the deceased, Iranganie, which was found on the soles and one upper of the applicant’s shoes, may have got there from a bathmat some time before the killing. Defence counsel told the jury it was possible that Iranganie could have knocked her toe and dropped blood from that on the bathmat and, because police had not tested the bathmat for DNA, that possibility could not reasonably be excluded. Another was that Todd Mortimer, the young boy who said he saw a dark skinned man running from the house after hearing an argument, may have been referring to the applicant leaving the house when earlier evicted by the police.

55 Whether or not there was a risk of the jury being distracted by fanciful possibilities, however, we think it clear that the total effect of her Honour’s directions could not have failed to convey to the jury that ‘reasonable doubt’ meant just that and that they were to acquit unless able to exclude any possibility consistent with innocence beyond ‘reasonable doubt’.

56 The judge began the relevant part of her charge with a direction to the jury that, although a criminal trial is not a search for the truth of everything that happened at the time and place concerned, the jury had to be satisfied of the guilt of the accused man before they could convict him, and that meant that the burden of proof lay fairly and squarely upon the Crown. Next, the judge explained the presumption of innocence and the different effects of a verdict of guilty and a verdict of innocence. Then her Honour went on to say:

So, if you are satisfied beyond a reasonable doubt of the guilt of the accused man in respect of a count of murder, or both, you find that accused guilty. If you are not satisfied beyond reasonable doubt of the guilt of an accused, or you believe an accused to be innocent, then your verdict would be not guilty.

Not only that, it is a very high standard of proof of which you must be satisfied. The standard is proof beyond reasonable doubt. They are words which are well known. I am sure you have read them, seen them on television, movies. They have been applied by juries in the courts in this country, in England, America, Europe over a lot of the world for generations.

The Crown must establish the guilt of an accused of the offence beyond reasonable doubt before a verdict of guilty can be returned against the accused. Juries in this country have been doing just that for years. They understand, they listen and they return verdicts either of guilty or not guilty understanding that it means just what it says, beyond reasonable doubt.

It is the highest standard we know in the law. There are two standards of proof in the law, one is the civil standard. If you have a car accident ... Balance of probability means that they [the scales of justice] are tipped slightly one way more than the other, slightly more probable than not. Just more probable than not. You could describe it as 51/49 per cent. That is more probable, that is balance of probabilities.

The standard that you have to use here is beyond reasonable doubt. That does not of course mean fanciful but just beyond reasonable doubt.

I am sure that does not surprise you. In a criminal trial one would expect that the standard of proof would be a high standard of proof. People ought not be convicted unless they are convicted properly, on a proper standard of proof. Any further definition of the words beyond reasonable doubt would be neither useful nor proper. They mean just what they say. The words mean just that, beyond reasonable doubt.

I remind you again that the accused man does not have to prove anything, the Crown must prove it and they must prove it beyond reasonable doubt. If, at the end of all your deliberations, your state of judgment is ‘We are satisfied of the evidence beyond reasonable doubt that the accused is guilty’ of the particular charge you are considering, then your verdict should be one of guilty.

If at the end of your deliberations however, your state of judgment is just not satisfied by the evidence beyond reasonable doubt that the accused is guilty of this count, then your verdict should be not guilty. Before you can convict an accused person, you must be satisfied beyond reasonable doubt of their guilt.[18]

57 In Wilson, the direction which was held to have caused a miscarriage of justice was as follows:

If you have no doubt at all about the guilt of an accused on a count then you will convict him on that count. If you think there is a doubt but that it is merely a fanciful doubt, you will still convict because that is not a reasonable doubt: it is a doubt beyond reason. If you have a reasonable doubt about guilt on a count then you should acquit, find him not guilty on that count...[19]

58 The problem with that direction was said to be that it invited the jury to subject their mental state to examination in order to determine whether the doubt about guilt which they may have thought existed was to be characterized as fanciful or reasonable, and thus was calculated to produce in the mind of the jury an impression that a view held by them that there was a doubt about guilt was to be disregarded unless it passed some further test.[20]

59 In our view, that could not be said of the directions given in this case. The judge’s statement that the jury had to be satisfied beyond reasonable doubt, not ‘fanciful’, just reasonable doubt, did not postulate a doubt about guilt which the jury thought existed, or invite them to subject their mental state to examination in order to determine whether the doubt which they thought existed was ‘fanciful’, as distinct from reasonable. It was directed at a process of definition logically anterior to the identification of any doubt of a relevant kind.[21] In context, it was similar in effect to the admonition in R v Neilan[22] that ‘beyond reasonable doubt is not no doubt, but reasonable doubt’.

60 In Neilan, the Court of Criminal Appeal held that, despite the undesirability of that sort of direction, the jury would not have regarded themselves as being directed or invited to analyse their mental processes, as opposed to being told that they should consider whether the Crown had proved guilt beyond reasonable doubt.[23] The Court concluded that:

The present case is yet another illustration of the undesirability, in general at all events, of seeking to explain to a jury what is meant by the phrase "beyond reasonable doubt” except by way of contrasting it with the standard of proof in civil proceedings. It is unfortunate that the observations now complained of were made by the learned judge. In a sense it was not wrong to tell the jury that a reasonable doubt was a doubt which they considered reasonable. Had the jury asked his Honour what "reasonable" meant, it would have been correct to reply that a reasonable doubt was a doubt which the jury considered reasonable. In the absence of any request from the jury for elucidation, it is, however, undesirable for a judge to tell the jury that they should first consider whether they have a doubt and then consider whether that doubt is a reasonable one. His Honour did not, however, invite the jury to approach their task in this two stage way. It is, in general at all events, undesirable for a judge even, instead of using the composite phrase "a reasonable doubt" or "beyond reasonable doubt", to distinguish between the doubt and its reasonableness. But we do not think that in the present case, whether one has regard only to the impugned passages or to the charge read as a whole, the jury would have regarded themselves as being directed or invited to analyse their mental processes as opposed to being told that they should consider whether the Crown had proved guilt beyond reasonable doubt.[24]

61 That conclusion finds support in the recent decision of the Northern Territory Court of Appeal in Ladd v R.[25] In that case, the trial judge answered a jury question as to the meaning of ‘reasonable in the context of reasonable doubt’ by directing the jury that the Crown was not required to prove its case beyond all doubt, but a reasonable doubt, and that what was a reasonable doubt was for the jury to determine. Based on a thoroughgoing examination of relevant authority, the Northern Territory Court of Appeal decided that the judge had not detracted from the fundamental requirement in Green that a jury be made to understand that the accused is to be given the benefit of any doubt which the jury considers to be a reasonable doubt.

62 The judge’s direction in this case was also not dissimilar to that which survived challenge in Boonudnoon v The Queen.[26] In that case, the West Australian Court of Criminal Appeal held that a trial judge had not erred in redirecting a jury that ‘you know if you have a reasonable doubt not a fanciful doubt, not a stupid doubt, a reasonable doubt’ before then going on to reiterate that ’beyond reasonable doubt meant beyond reasonable doubt’. Murray J, with whom Wallwork and Anderson JJ agreed, reasoned as follows:

In Thomas v The Queen,[27] Kitto J said:

Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what ‘reasonable’ means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable.

The same point was made by Barwick CJ, McTiernan and Owen JJ in Green v The Queen:[28]

A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment.

I can see no material distinction between what her Honour said in this case and what was held to be desirable in those cases. It was not necessary for her Honour to do so, but, in our opinion, her Honour committed no error of law in telling the jury that a reasonable doubt was a doubt which they regarded as reasonable rather than fanciful or stupid.

In Goncalves v The Queen[29] Malcolm CJ[30] and Wheeler J,[31] with both of whom Heenan J agreed, held that although it was not necessary to do so, it was not necessarily an error of law to attempt to offer guidance to juries about the meaning of the term ‘beyond reasonable doubt’, so long as the jury was not misled as to the nature of the burden of proof imposed on the Crown. In that case the trial judge told the jury that ‘beyond reasonable doubt’ did not mean ‘proof to the point of absolute certainty’. The direction was upheld because, as Malcolm CJ put it (at 196):

... the learned judge was telling the jury that proof beyond reasonable doubt did not mean proof beyond any doubt whatsoever. From the way in which it was put, I am of the opinion that it remained for the jury to determine whether any doubt they had was a reasonable doubt.

I can discern no error in what was said by her Honour in this case.[32]

63 With respect, we agree with Murray J’s analysis and substantially with his Honour’s conclusion. In this case, we have reached a similar conclusion. For the time being, the law remains that a trial judge should not attempt to explain or define reasonable doubt and that, ‘if amplification is required, it should go no further than to tell the jury that a reasonable doubt is one which they as reasonable persons, are prepared to entertain’.[33] It follows, in our view, that it was an error for the trial judge in this case to refer to ‘fanciful’ in the way her Honour did. But we do not consider that it was a material error because, ‘in the context of the summing-up as a whole’,[34] her Honour’s directions could not have failed to convey to the jury that the accused was to be given the benefit of any doubt which the jury considered to be reasonable doubt. On that basis, we reject Ground 1.

Ground 3 – Directions as to relationship evidence

64 The complaint under Ground 3 was that the judge erred in her directions to the jury as to the use which they might make of evidence of the past relationship between the applicant and Badra. In particular, it was contended that the judge erred by directing the jury that that evidence ‘gives you a proper basis for being able to assess the reliability, credibility and accuracy of the evidence relating to [the] two days in question’. Counsel for the applicant submitted that the vice in that direction was that it invited the jury to reason that, because the applicant had a violent disposition towards his wife, her credit was enhanced.

65 In our view, the complaint misconceives the effect of the direction. Her Honour made that statement as part of a considerably longer explanation to the effect that the relationship evidence provided a background in which events occurred which could assist in explaining why, for example, Badra had reacted as she did to the discussion or argument which followed her father’s criticism of the way in which the applicant treated her. The overall effect of the direction was that, in deciding how likely it was that the sequence and nature of events was as Badra deposed, it was appropriate to take into account the context in which those events occurred and in particular to take into account the nature of the relationship between the applicant and Badra.

66 As such, the judge’s directions were an orthodox, logical analysis of the utility of relationship evidence in the particular context of the case. They accorded more or less precisely with the observation of Gleeson CJ in HML v The Queen,[35] that:

[Background] information may be relevant, and therefore potentially admissible as evidence where it bears upon assessment of the probability of the existence of a fact in issue by assisting in the evaluation of other evidence. It may explain a statement or an event that would otherwise appear curious or unlikely. It may cut down, or reinforce, the plausibility of something that a witness has said. It may provide a context helpful, or even necessary, for an understanding of a narrative.

67 Her Honour also acted correctly in giving the jury a detailed propensity direction that they were not to reason from the fact that the applicant may have been violent in his relationship with Badra that he was the sort of man who was likely to have killed the deceased. [36]

68 In the result, we reject Ground 3.

Ground 4 – Whether open to convict on circumstantial case alone

69 The Crown’s case at trial was partly circumstantial and partly constituted by the direct evidence of Badra that the applicant returned to the house after being evicted by the police and stabbed her parents to death. During the course of final address, the prosecutor submitted to the jury that it was open to them to convict on the basis of the circumstantial case alone, without the evidence of Badra. Later, after summarising the circumstantial evidence identified by the prosecutor, the judge said:

From that, they ask you to examine those witnesses and their evidence and say to you that from the totality of that, even if you put Mrs Hettiaracchchi’s evidence to one side, from a number of those items alone, let alone in combination, you should be satisfied that you could draw the inference that it was the accused man who killed both Sammy Perera and Iranganie Perera. That would be the only reasonable inference open from a combination of all of those facts.

70 Under cover of Ground 4, it was contended on behalf of the applicant that the circumstantial evidence went no further than to establish that the applicant was present when the deceased were killed and, therefore, that the applicant may have lied when he said in his record of interview that he did not return to the house. It was also contended that, inasmuch as the Crown did not rely upon the lie as evidence of consciousness of guilt, the circumstantial case was incapable, on its own, of sustaining an inference of guilt beyond reasonable doubt. It followed, it was said, that the judge erred by endorsing and thereby adopting the Crown argument that it was possible to infer guilt beyond reasonable doubt even in the absence of Badra’s direct testimony.

71 We think it enough to dispose of that argument to say that, if the judge did endorse the Crown argument as to the strength of the circumstantial case, we agree with it. In our view, it was particularly powerful. It showed that the applicant was present at the time of the killings, with a motive to kill the deceased for whom he had proclaimed his dislike. It also showed that he ran away from the scene of the killings moments after the deceased were stabbed, with blood on his shirt and the blood of the deceased, Iranganie, on his shoes. The only other person who could possibly have been the killer was Badra, for she was the only other person[37] present at the time, and that possibility was remote. On the evidence, she had no motive to kill her parents, she was evidently emotionally stricken by their deaths, and there was no forensic evidence to suggest that she had killed them. Putting aside her testimony, it was still plainly open to the jury to be satisfied beyond reasonable doubt that the applicant was the killer.

Ground 5 - Unsafe and unsatisfactory

72 The final ground of appeal was that, if one or other of the alleged errors in the judge’s charge were not of themselves sufficient to warrant that the conviction be set aside, taken as a whole they were such as to render the verdict unsafe and unsatisfactory.

73 It will be apparent from what we have said about the other grounds of appeal that we reject that contention.

Conclusion

74 For the reasons we have given, the application will be dismissed.

Appeal against sentence

75 The judge sentenced the applicant to 22 years’ imprisonment in respect of each of count 1 (the murder of Sammy Perera) and count 2 (the murder of Iranganie Perera). Her Honour ordered that five years of the sentence imposed on count 2 be served cumulatively upon the sentence on count 1, making a total effective sentence of 27 years. She directed that the applicant serve a minimum of 22 years before becoming eligible for parole.

76 In his notice of appeal, the Director contended that there was manifest inadequacy in each of:

(a) The individual sentences;

(b) The order for cumulation;

(c) The total effective sentence; and

(d) The non-parole period.

77 However, in his submissions, the Director only challenges the order for cumulation. In essence, the Director argues that the learned sentencing judge ought to have imposed a greater period of cumulation, because five years’ cumulation places too little value on human life, particularly where the victims were elderly and quite defenceless.

78 In her careful and thorough reasons for sentence, the judge discussed in some detail the sentences imposed in four cases of double murders: R v Guthrie and Nuttall,[38] R v Crosbie,[39] R v Sharpe[40] and R v Beckett.[41]

79 In rejecting the prosecution submission that a sentence of life imprisonment was justified, her Honour explained why she regarded the facts in the cases of Crosbie, Sharpe and Beckett as ‘the worst examples’, which were not comparable to the facts here. That conclusion, and her Honour’s consequent rejection of a sentence of life imprisonment, is no longer challenged by the Director. As life imprisonment was ordered in each of those three cases, none of the sentences involved any question of cumulation.

80 In R v Clarke,[42] this court affirmed that a Director’s appeal should only be brought in a rare and exceptional case, to establish some point of principle, and that this court should only interfere where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle, or to correct a sentence which is so disproportionate to the nature of the offence as to shock the public conscience.

81 The Director’s argument on this appeal falls a long way short of demonstrating any such error. At its highest, the Director’s case amounts to a submission that the facts of this case are analogous to the facts in R v Russo,[43] therefore there should have been a longer period of cumulation than five years. Apart from not demonstrating any relevant error, that submission seems questionable on the facts.

82 Russo murdered his two elderly parents, by bashing them to death in their home, for financial gain. In sentencing after a retrial, Bell J imposed a sentence of 18 years’ imprisonment for the murder of each parent, with 10 years’ cumulation, resulting in a total effective sentence of 28 years.[44] His Honour fixed a minimum term of 23 years. Unfortunately, because his Honour’s sentencing remarks in that case are so brief (running to just over two pages), it is difficult to draw too many parallels between the facts of the two cases. However, in any event, in Russo, Bell J imposed lighter individual sentences, and greater cumulation, than in this case, but, at the end of the day, there is a difference of only one year between the total effective sentences in the two cases.

83 As this Court has recently affirmed in R v Hogan,[45] the making of orders as to cumulation or concurrency is a matter for the exercise of a broad judicial discretion. There can be no inflexible rules as to how this is done: what is important is that whether or not cumulation is imposed, and to what extent, must reflect the criminality of the offences, subject to due observance of the totality principle.[46]

84 The Director has not demonstrated any error in principle in relation to sentence. The various elements of the judge’s sentencing, including the period of cumulation, do not demonstrate any manifest inadequacy or inconsistency, and reflected all relevant factors, including the seriousness of the offences and the age and vulnerability of the two victims. We shall dismiss the Director’s appeal.

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[1] R v Bracewell (1978) 68 Cr App R 44, 52 (Ormrod LJ).

[2] Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353, 359; and Selvey v DPP [1970] AC 304. See also J Heydon, Cross on Evidence (Sydney, LexisNexis Butterworths, 2004), [23,280].

[3] R v Woolcott Forbes (1944) 44 SR (NSW) 333; Amoe v DPP (Nauru) [1991] HCA 46; (1991) 103 ALR 595, 601; and Crabbe v R [1984] FCA 321; (1984) 11 FCR 1. See also J Heydon, Cross on Evidence (Sydney, LexisNexis Butterworths, 2004), [23,275].

[4] R v Bracewell (1978) 68 Cr App R 44, 52.

[5] [1991] VicRp 37; [1991] 1 VR 697.

[6] Ibid 705.

[7] Donnini v The Queen [1972] HCA 71; (1972) 128 CLR 114, 121–2 (Barwick CJ).

[8] See and compare TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, 128 (Gleeson CJ).

[9] [1998] HCA 23; (1998) 153 ALR 145.

[10] Ibid [22] and [23], supported by Gaudron and Gummow JJ, [12] and [13]. See also Doggett v The Queen (2001) 208 CLR 343, 357 (Gaudron J).

[11] (1986) 42 SASR 203.

[12] Dawson v The Queen [1961] HCA 74; (1961) 106 CLR 1, 18 (Dixon CJ); Thomas v The Queen [1960] HCA 2; (1960) 102 CLR 584, 595, (Kitto J) and 605 (Windeyer J); Green v The Queen [1971] HCA 55; (1971) 126 CLR 28, 31–33 (Barwick CJ, McTiernan and Owen JJ); R v Chatzidimitriou [2000] VSCA 91; (2000) 1 VR 493, 498 (Phillips JA); and R v Cavkic; R v Athanasi; R v Clarke [2005] VSCA 182; (2005) 12 VR 136, 141 (Vincent JA).

[13] R v Wilson, Tchorz and Young (1986) 42 SASR 203, 207 (King CJ); and R v Chatzidimitriou [2000] VSCA 91; (2000) 1 VR 493, 501 (Callaway JA in diss).

[14] [1971] HCA 55; (1971) 126 CLR 28.

[15] Ibid 33; and R v Wilson (1986) 42 SASR 203, 207.

[16] [2000] VSCA 91; (2000) 1 VR 493.

[17] Ibid 503 (Callaway JA in diss, but not on this point). Cf R v Lancefield [1999] VSCA 176, [25].

[18] (emphasis added).

[19] (1986) 42 SASR 203, 205.

[20] Cf Ladd v R [2009] NTCCA 6; (2009) 157 NTR 29, [212].

[21] Cf R v Chatzidimitriou [2000] VSCA 91; (2000) 1 VR 493, 508 (Cummins AJA).

[22] [1992] VicRp 5; [1992] 1 VR 57.

[23] Ibid 69.

[24] Ibid 71 (emphasis added).

[25] [2009] NTCCA 6; (2009) 157 NTR 29.

[26] [2002] WASCA 313; (2002) 172 FLR 111.

[27] [1960] HCA 2; (1960) 102 CLR 584, 595.

[28] [1971] HCA 55; (1971) 126 CLR 28, 32–33.

[29] (1997) 99 A Crim R 193.

[30] Ibid 196.

[31] Ibid 203.

[32] Boonudnoon v The Queen [2002] WASCA 313; (2002) 172 FLR 111, 120.

[33] See [52] above.

[34] R v Ho [2002] NSWCCA 147; (2002) 130 A Crim R 545, [32] (Bell J).

[35] [2008] HCA 16; (2008) 235 CLR 334, 352 (in diss, but not on this point). See also J Heydon, Cross on Evidence (Sydney, LexisNexis Butterworths, 2004), [21,050].

[36] Donnini v The Queen [1972] HCA 71; (1972) 128 CLR 114, 123 (Barwick CJ); BRS v The Queen [1997] HCA 47; (1997) 191 CLR 275, 305–306 (McHugh J); R v Stalder [1981] 2 NSWLR 9. Cf R v Samuel (1956) 40 Cr App R 8. See also J Heydon, Cross on Evidence (Sydney, LexisNexis Butterworths, 2004), [19,145].

[37] Apart from the children.

[38] [2006] VSCA 192 (Chernov, Vincent and Redlich JJA). Guthrie and Nuttall were both found guilty of two murders, involving deliberate and extended acts of a brutal nature, with numerous aggravating features. On appeal, Guthrie was re-sentenced to 24 years on the first count and 22 years on the second, with 5 years’ cumulation, giving a total effective sentence of 29 years. Nuttall was re-sentenced to 22 years on each count, with 4 years’ cumulation, giving a total effective sentence of 26 years.

[39] [2003] VSC 69 (Kellam J). Crosbie was sentenced to life imprisonment, with a minimum term of 30 years, for the brutal and senseless killing of his girlfriend and her mother for sexual gratification.

[40] [2005] VSC 276 (Bongiorno J). Sharpe was sentenced to life imprisonment, with a minimum term of 33 years, for the brutal and pre-meditated murder of his pregnant wife and 18 month child, over a two-day period.

[41] [1998] VSCA 148 (Tadgell, Batt and Buchanan JJA). Beckett abducted, raped and tortured two young girls over a period of many hours, before murdering them in an extremely sadistic manner. He was sentenced to life imprisonment, with a minimum term of 35 years.

[42] [1996] VICSC 30; (1996) 2 VR 520 (Charles JA, with whom Winneke P and Hayne JA agreed).

[43] [2005] VSC 348 (Bell J).

[44] This was the same sentence as had been imposed by Redlich J, as he then was, after the first trial: R v Russo [2003] VSC 164.

[45] [2008] VSCA 279, [29] (Maxwell P, Redlich JA and Robson AJA).

[46] Ibid [28].