CATCHWORDS Jurisdiction - criminal trial - murder - occurrence within jurisdiction of death or act causing death - necessity for special verdict. Evidence - criminal trial - admissibility of evidence of similar facts - accused convicted of other murders - striking similarity of facts. Evidence - criminal trial - admissibility of evidence of tests carried out with similar vehicle - admissibility of expert opinion as to speed of motor vehicle based on damage caused by impact with stationary object. Crimes Act 1900 (N.S.W.), 5.25 Cases Perry v. The Queen (1982) 150 C.L.R. 580 Sutton v. The Queen (1984) 152 C.L.R. 528 The Queen v. Ireland No. 2. 1975 S.A.S.R. 6 Cooper v. Bech (No. 2) (1975) 12 S.A.S.R. 151 ALLEN DOUGLAS THOMPSON v. THE QUEEN No. ACT G8 of 1986 FORSTER, EVERETT & MILES JJ. CANBERRA 12 SEPTEMBER 1986 i 17 SEP 936 FEDERAL COURT OF AAUTRALIA RAINGIPA: FBQISTRY IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. ACT G8 of 1986 GENERAL DIVISION SCC No. 39 of 1985 On appeal from the Supreme Court of the Australian Capital Territory BETWEEN : ALLEN DOUGLAS THOMPSON Appellant E THE QUEEN Respondent MINUTE OF ORDER JUDGES MAKING ORDER 2 FORSTER, EVERETT & MILES JJ. WHERE MADE CANBERRA DATE OF ORDER 12 SEPTEMBER 1986 THE COURT ORDERS THAT: 1. The appeal be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY No. ACT G8 of 1986 GENERAL DIVISION SCC No. 39 of 1985 On appeal from the Supreme Court of the Australian Capital Territory BETWEEN : ALLEN DOUGLAS THOMPSON Appellant THE QUEEN Respondent REASONS FOR JUDGMENT CORAM: Forster, Everett & Miles JJ. THE COURT : The appellant was convicted after a trial by jury in the Supreme Court of the Australian Capital Territory upon charges of murdering two sisters, Mirjana and Ljiljana Milosevic on 30 December 1981. Upon conviction he was sentenced to imprisonment for life with respect to each of the two murders. He appealed against his convictions upon eight stated grounds, three of which were abandoned at the outset of the appeal hearing but new grounds were then added. The grounds argued are as follows : "L, first, 2. That His Honour erred in admitting evidence relating to the murder by the appellant of four persons at a residence known as 56 Hemmings Crescent, Richardson on 28 March 1984. That His Honour erred in refusing to direct the jury to find the appellant not guilty when there was no or insufficient evidence to establish that the deaths of the alleged victims occurred within the Australian Capital Territory. That the verdict was unsafe and unsatisfactory. That His Honour erred in failing to direct the jury to return a special verdict as to whether or not the deaths of the alleged victims or the acts Causing such deaths occurred within the Australian Capital Territory. That His Honour erred in admitting evidence of certain experiments conducted under the supervision of Detective Inspector R.T. Ninness on 29 May 1984. His Honour erred in failing to give adequate directions to the jury as to the relevance of the evidence concerning the murders at Richardson. His Honour erred in admitting evidence to the effect that the motor vehicle could not have heen travelling at more than 15 miles per hour." The grounds of appeal fall into three categories the similar fact evidence (grounds 1 and 6), second, the 3. question of the court's jurisdiction (grounds 2, 3 and 4), third, the experiment and expert evidence (grounds 5 and 7). We propose in due course to deal with the grounds of appeal category by category. Before we do so it 1s necessary to recite some background facts so that the grounds of appeal may be understood in context. On 30 December 1981 Mirjana and Ljiljana Milosevic or rather their dead bodies were found in a burnt out motor car which had collided with a tree adjacent to the Monaro Highway in the A.C.T. The appellant, who had been driving the motor car, gave an account to police that he was driving along the Monaro Highway with the two girls as passengers, that he was dazzled by the lights of an oncoming car and that as a consequence his car left the road and struck a tree at about 40-45 miles an hour. The car burst into flames, the appellant was able to get out, but was unable to get the two girls out and they were burnt to death. The matter was investigated ina rather desultory way by the police and others and in the end no steps were taken by police against the appellant until some years later. On the night of Wednesday 28 March 1984 the accused killed the four occupants of a house at Hemmings Crescent, Richardson in the A.C.T. These persons were Radmilla Milosevic, a sister of the two girls, the subject of the present charge, her de facto husband and two children. Each of these four deceased persons were shot in the 4, head and there were other wounds. There were other similarities between the killings, the subject of the present charges and those later killings which we will deal with later. The appellant admitted to police that he had murdered these four persons and he was later convicted with respect to those murders, but he has always steadfastly asserted his innocence on the present charges. The occurrence of these four killings and the appellant's connection with them led the police to reinvestigate the deaths of Mirjana and Ljiljana with somewhat greater thoroughness and their bodies were exhumed and subjected to a thorough post-mortem examination, the results of which we deal with later. We deal first with the question of jurisdiction because, if the Supreme Court of the A.C.T. had no jurisdiction to try the appellant the other grounds of appeal become irrelevant. It is conceded by the appellant and the respondent and, in my view, quite rightly conceded, that the jurisdiction of the Supreme Court of the A.C.T. to try the appellant, depended upon the occurrence within the geographical limits of the A.C.T. of either the deaths of the two deceased girls or the act or acts causing their deaths. (See s.25 Crimes Act 1900 (N.S.W.) in its application to the A.C.T.). The evidence as to this is sparse. The appellant 1s probably the only person who knows where the girls died. He says that they died in the A.C.T. when the car driven by him collided with the tree and burst into flames. It is not disputed that this tree is in the A.C.T. The Crown case 5. however was that the girls had each been shot in the head and that the collision of the car with the tree and the subsequent Fire were staged by the appellant in order to conceal his crime of killing the girls by shooting. If he did shoot them he was of course successful in his attempt at concealment for some time at least. Whatever the truth may be about the circumstances of the deaths of the two girls, the appellant is almost certainly the only person who knows where the deaths occurred and has steadfastly maintained that the girls died after the collision with the tree. Other evidence of the happenings on the night of the girls' death 1s also sparse. The older of the two girls, Mirjana, had been living with the appellant in Queanbeyan in New South Wales. The younger girl, Ljiljana, had been living with her mother in Ainslie in the A.C.T. The appellant and Mirjana had left the house at Ainslie with Ljiljana at about 9.30p.n. intending, so the appellant told police, to go to Bredbo, a town in New South Wales. He told police that he and the two girls were returning from Bredbo and travelling along the Monaro Highway towards Queanbeyan when the car hit the tree. The tree was only some 45 or 50 metres from the border between the A.C.T. and New South Wales but was 10-12 kilometres from where the Monaro Highway crosses the border between the A.C.T. and New South Wales, the road running fairly close alongside the border for some distance after crossing 1t. If the appellant and the girls had heen to Bredbo as he said they had they had travelled for some 10-12 kilometres within the A.C.T. when the car hit the tree. It 18 conceded by counsel for the appellant that the 6. directions to the jury of the trial judge as to jurisdiction were impeccable. With this concession we agree and although the evidence as to where the deaths of the two girls took place was not extensive, such evidence as there was pointed to the A.C.T. as being the place. The directions of the trial judge as to jurisdiction were very clear and there was evidence upon which the jury could find as they must have done that the deaths occurred in the A.C.T. and not in New South Wales. There was also a contention that the trial judge should have sought a special verdict from the jury on the question of jurisdiction. Suffice it to say that although such a verdict is sometimes sought froma jury (see for instance R. v. Graham (1984) V.R. 649 where that course was approved) there appears to be no authority which says that to take a special verdict is the only proper way to proceed. In the present case the learned trial judge made it perfectly clear to the jury that the question of the court's jurisdiction to try the appellant was a question of fact for them to decide and that unless they were satisfied beyond reasonable doubt that either the act or acts causing the girls' deaths or the deaths themselves took place in the A.C.T. then they should go no further. We are unable to say that the learned trial judge was wrong not to seek from the jury a special verdict as to jurisdiction, but instead to direct them that the question of jurisdiction was for them to decide and that unless they were satisfied beyond reasonable doubt that the court had jurisdiction, they could not properly convict the appellant. 7. It is argued under ground 3 that the verdicts were unsafe and unsatisfactory because there was insufficient evidence that either the deaths or the acts which caused them occurred in the A.C.T. What we have said already disposes of this ground. Grounds of appeal numbered 2, 3 and 4 are accordingly rejected. We deal next with grounds 1 and 6 concerning the similar fact evidence admitted by the learned trial judge. Sergeant Lanham, a police officer, was permitted to give evidence of admissions made to him by the appellant that he had shot to death the four persons in the house at Richardson. Circumstances surrounding these four murders were proved and there was evidence arising out of the post-mortem examination of the corpses of the two deceased in the present case from which the jury could, if they were so minded, draw certain conclusions. The account of the deaths of the two girls given by the appellant was that they had died in a fire after the car in which they were passengers had hit the tree just off Monaro Highway. The Crown contended that the appellant had shot the two girls and then staged a collision of the vehicle with a tree and the burning of the vehicle in order to cover up evidence of the shooting. The issue therefore was whether the girls had died in a motor accident as the appellant said or by being shot as the Crown said. If the appellant were to be convicted it was necessary for the Crown to prove not only that the girls were shot, but that the appellant shot them. It is argued by the Crown that the evidence of the Richardson killings was relevant to prove B. both that the girls were shot and not killed in a motor accident and also that the appellant was responsible for the shooting and that this was not accidental. A voir dire hearing was conducted by the learned trial judge. In order to enable him to rule on the admissibility of the evidence proposed to be led concerning the Richardson murders, the Crown Prosecutor gave details of this evidence and, in the absence of the jury after hearing argument, his Honour decided to admit the evidence upon the ground that there was "a striking similarity" between the facts of the Richardson murders and the present case and that the "similar facts" were relevant as tending to show otherwise than via propensity that the accused committed the acts forming the basis of the charge because on other occasions he had committed a crime in a particular somewhat unusual manner. The points of similarity mentioned by his Honour were as follows : "(1) the family connection between each set of victims; (2) each of the six victims involved in the four Richardson murders and those for which the accused 1s being tried, was shot; (3) each such victim was shot with a similar calibre rifle; (4) each shot was through the head of the victim; (5) each Richardson victim was shot at close quarters and it was highly likely that the two 9. victims of the present charges were also shot at close quarters; (6) in respect of the Richardson murders' the accused had attempted to destroy the evidence and he had done likewise in relation to the present offences; (7) the attempt to destroy evidence was in both instances by fire; (8) in both instances the fire had been set by using petrol; and (9) the accused was present at the scene of each set of killings shortly before they occurred and was the last person to see the victims alive." Without setting out the evidence in detail it is sufficient to say that there was evidence upon which the jury could have made the findings of fact mentioned in each of the above points of similarity. The learned trial judge made it clear to the jury that it was for them to decide whether the facts were established and, if so, whether there was such striking similarity between the two incidents as to warrant their finding that the appellant was responsible for the killing of the two girls as well as the Richardson killings. It was argued by counsel for the appellant that points (2), (3), (4) and (5) should not be relied upon because, if the Crown wished to prove that the girls were shot, it is a faulty reasoning process to assume this fact for the purpose of proving it. It was further said that if the girls were shot then no one other than the appellant could have shot them. The answer to 10. this contention is, we think, that the appellant has always maintained and maintained at the trial that the girls died in a motor accident. He never admitted shooting them so that this fact remained to be proved as well as the basic fact of the shooting. Another answer is that whereas there was evidence apart from the similar fact evidence from which the jury could find beyond reasonable doubt that the girls were shot, the evidence was not so strong that they must so find. In these circumstances the evidence of the Richardson murders, as it seems to us, strenghthens considerably the existing evidence tending to prove that the girls were shot. The legal principles governing the admissibility of similar fact evidence have been dealt with by the High Court ina number of recent decisions, notably Perry v. The Queen (1982) 150 C.L.R. 580 and Sutton v. The Queen (1984) 152 C.L.R. 528, both of which cases were cited and relied on by the learned trial judge in his considered reasons for admitting the similar fact evidence. In both of these cases, notably Sutton, the test for admissibility was put with respect to a case like the present. "The question is whether each of the crimes was committed in a manner so strikingly similar to the other that a jury could reasonably conclude that the same person was guilty of all the crimes", Sutton v. The Queen (supra) per Gibbs, C.J. at 535. In the present case the murders at Richardson and the killing of the 11. two girls and the circumstances surrounding each were so strikingly similar that the jury could reasonably conclude that the appellant was guilty of all six murders. The admissibility of the similar fact evidence could be supported in another way and that is to negative the proposition should it be put, that the shooting of either of the girls was accidental. It could also be supported in order to negative the defence of the appellant that the girls died as a result of the vehicle's collision with a tree and a subsequent fire. For this purpose points (2), (3), (4) and (5) should be disregarded as it would be wrong to assume that the girls were shot for the purpose of proving this fact. However the remaining points of similarity would, in our view, together amount to sufficiently striking similarity as to tend to prove that the girls wha died in the appellant's presence did not die as he said they did, but were shot by hin. It is also put that even if the evidence were technically admissible the learned trial judge should have declined to admit it on the basis of the exercise of his discretion. The learned judge however decided to admit the evidence and we can see no reason whatsoever to justify interference with the exercise of his discretion. The complaint in ground 6 is that the learned trial judge failed when asked to direct the jury to disregard the similar fact evidence. If the evidence were properly admitted, as we think it was, it was not wrong for the judge to fail to 12. direct the jury as asked, indeed he would have been wrong to do so. Grounds 1 and 6 are therefore dismissed. We come now to the evidence of tests and expert opinion mentioned in grounds 5 and 7. The experiments conducted under the supervision of the witness WNinness fell into two classes. The farst may be described as the crash experiment and the second the fire experiments. The account of the appellant to police was, as we have said, that he was driving along the Monaro Highway when he was dazzled by the lights of an oncoming vehicle. He drove off the road and without braking the car he was driving, collided with the tree at a speed of 40-45 miles an hour. The appellant said that the car then burst into flames, the fire starting in the engine compartment and spreading to the inside of the car, engulfing it so rapidly that although he was able to get out of the car and save himself, it was impossible for him to get the two girls who were his passengers out of the car. In order to test the accuracy of the accused's account police under the supervision of Sergeant Ninness, as he then was, conducted the crash tests in question. In this test Ninness himself steered a car of a similar age and model to the car driven on the night in question by the appellant. This car was pushed 40 or 50 yards down a hill and steered by Ninness into a tree of similar size to the tree on the edge of the Monaro 13. Highway with which the appellant's car collided. The car was timed by another police officer as it traversed the last four Metres of its journey and the speed was calculated at sixteen kilometres per hour. A video film was made of the car's journey and this and still photographs showed the damage to the front of the car. There were also photographs of the front of the appellant's car and a clip froma television news film of it. Sergeant Ninness simply gave evidence of this experiment and expressed no opinions. The jury were invited to compare the photographed condition of both vehicles which showed, it was argued, that the damage to the front of the appellant's vehicle and the damage to the front of the test vehicle were similar which it was said made incredible the account of the collision with the tree at 40-45 miles an hour given by the appellant. There were also the fire tests carried out with the same Car. Police lifted the bonnet of the car and poured a small amount of petrol onto the engine near the petrol pump and ignited it. This fire burned for 65 seconds and went out. In the second test a hose full of petrol was placed in the engine and some petrol was poured on to it and the hose was cut and the petrol which came out was ignited. This fire burned for 95 seconds and went out except for a tiny flame. Next, a litre of petrol was poured all round the engine, the bonnet was closed and the fire ignited. This fire flared up intensely and quickly died down after 77 seconds. No flame went through the fire wall in any of the first three tests. Finally, with the honnet 14. raised, the engine compartment, including the fire wall, was Saturated with five litres of petrol. The vapour from the petrol was lit and a very intense fire resulted. After four and a half minutes the fire came through the fire wall into the Passenger compartment. After another two minutes and ten seconds there were flames and smoke coming from under the dashboard. Gradually the fire moved into the interior of the vehicle and after fifteen minutes the interior was well alight. There was evidence that the engine of the appellant's vehicle would have stopped on impact with the tree which would have caused the petrol pump to stop pumping petrol. The petrol tank was intact and the carburettor also appeared to be. There was also evidence that there would have been only less than a cupful of petrol in the fuel lines and a cupful in the carburettor. The evidence of the petrol tests and the evidence as to the quantity of petrol available in the engine compartment of the subject car and the lack of damage to the petrol tank were tendered by the Crown at the trial over the objection of the appellant's counsel in order to show that the appellant's account of his car being engulfed in flames after the collision with the tree could not be true and also his account of being able to get out of the car and being unable to get the girls out. 15. The evidence as to the crash test and the fire tests was objected to but was allowed by the learned trial judge. In our view he was right todo so. The matter seems to us to be covered by the judgment of the Full Court of the Supreme Court of South Australia in The ueen v. Ireland (No. 2) (1975) S.A.S.R. 6. In that case the prosecution tendered evidence of tests conducted by a police officer involving the rolling of a body over the floor of a room and the walking of a specified distance to check the time taken by the walk. The Court held that the evidence of the results of the tests was admissible. At page 14 of the joint judgment the following passage appears : "In practice, evidence of experiments, more often than not, is offered by experts and its purpose is frequently to confirm the opinions of those experts arrived at by an examination of real evidence that has been found and collected at the scene of the trial. But, of course, the use of experiments for the purpose of enlightening a jury is not limited to those so conducted. It seems to us that, given conditions for the experiment sufficiently similar to the conditions in which the act or event under consideration must have been done or occurred, an experiment carefully performed and conscientiously recorded and reported may frequently be of great assistance to the jury in its deliberations. Some experiments can be carried out only by experts, occasionally by experts with high qualifications and advanced skills, but others can be carried out by ordinary laymen by the application of common sense and the employment of such tools, materials and devices that are readily at hand." and at page 15 a further passage : "In the present case, we are of the opinion that accounts of both experiments and of their results were admissible; any criticism of the evidence goes, in our opinion, to its weight and not to its admissibility. In our opinion, in the circumstances of this case, the jury were able 16. readily to assess the assistance that could safely be derived from the evidence relating to the experiments, to apprise themselves of any dangers inherent 1n the use of that evidence, and to discard it without unfair damage to the accused's interests if its weight proved to be negligible." There is surprisingly little authority directly in point apart from this case. We are content to follow R. v. Ireland (No. 2) (supra). There remains the argument that the circumstances of the tests in each category were not sufficiently similar to the circumstances on the night the girls were killed. So far as the impact tests are concerned there are a number of points of difference suggested by counsel for the appellant. The engine of the test car was not running, there were no working brakes fitted to it, the interior fittings had been modified and the vehicle was running slightly downhill when it struck the tree in the test. None of these differences seem to us to have been of sufficient significance to render the tests so dissimilar from the circumstances of the collision of the appellant's car with the tree so as to make the tests irrelevant. It is also pointed out that in the tests there was only one person in the car and in the collision of the appellant's car with the tree there were three. There is no evidence as to the weight of any of the persons involved or of the weight of the car. If speculation were permissible we should have thought that the presence of two girls in the appellant's car would not have caused these 17. circumstances to differ very much. However that may be it seems to us that a consideration of the basic laws of physics of which we are permitted to have knowledge would lead one to a conclusion that if the appellant's vehicle were carrying a heavier load than the test vehicle and if they struck their respective trees at approximately the same speed, the damage to the appellant's vehicle should have been greater than the damage to the test vehicle. It seems to us that the difference in the loads carried by the two vehicles must have worked in the appellant's favour so that we may safely ignore that difference whatever it may have been. In the event it seems to us that the circumstances of the two collisions were sufficiently similar to make the evidence of the test results relevant. The weight to be put on that evidence was of course a matter for the jury. As to the fire tests the first two tended to show that neither the amount of petrol to be expected in the fuel lines nor this, together with the amount to be expected in the bowl of the carburettor, was likely to cause a fire in the engine compartment which would burst through the fire wall and engulf the interior of the vehicle. The third test tended to show that even when considerably more petrol than could have been in the engine compartment was lit, 1t was unlikely to cause such a fire. The final test tended to show that only with much more petrol still, ignited in the engine compartment, would a fire anything like the 18. fire described by the appellant and revealed by the state of the vehicle, be caused. In view of the expert evidence as to the amount of petrol which would be available in the engine compartment to feed a fire, it seems to us, that evidence of the fire tests was relevant to the issue as to whether or not the fire was caused in the manner which the appellant told police it was. Once again its weight was a matter for the Jury. The evidence referred to in ground 7 was that of Pound and Professor Joubert. Pound said that, in his opinion, the damage to the front of the appellant's car revealed in photographs indicated the collision with the tree at twelve to fifteen miles an hour. Professor Joubert gave it as his opinion, after seeing photographs and film of the appellant's vehicle, that the collision with the tree took place at about fifteen miles an hour. It was argued that Cooper v. Bech (No. 2) (1975) 12 S.A.S.R. 151 is authority for the proposition that an expert witness may not be permitted to give evidence of his opinion as to the speed of a motor vehicle on impact with another based on the damage to the first vehicle. The case does not decide this but decides that an insurance adjustor, formerly an experienced traffic policeman, who had made a study of traffic accidents and their results, could not be accepted as an expert in deducing from the condition of a damaged vehicle the speed at which it collided with another vehicle. In the case at hand it must be 19. observed that the collision was with a stationary object and also that Pound and Joubert possessed expert qualifications much greater than Mr Swain, the adjustor in Cooper v. Bech (supra). Pound is, and has been for ten years, a vehicle safety engineer with General Motors-Holden, the manufacturer of the vehicle in question. He holds diplomas in mechanical engineering, electrical engineering and automotive engineering. He has been involved in what he called "impact testing" and conducting tests at various speeds of impacts of particular models of Holden motor vehicles with stationary objects. The models included the particular model in question. It seems to us that he is well qualified to express the opinion that he did. Professor Joubert holds the chair of mechanical engineering at the University of Melbourne. He has degrees in aeronautical engineering and mechanical engineering and is a Fellow of a number of learned bodies, including the Society of Automotive Engineers of Australia and the Australian Academy of Technological Science. For the last 25 years he has devoted himself almost continuously to the study of motor vehicle accidents. He has, during this time, carried out a number of particular studies including one funded by the Commonwealth Government into "road accidents with fixed objects", Professor Joubert seems to us to be well qualified to give the opinions lon ; , <« 20. that he did. Ground 7 in the notice of appeal must be rejected and the appeal as a whole fails and must be dismissed. I certify that this and the preceding pages are a true copy of the Reasons for Judgment off The Court We Associate: Dated: a Vie