New South Wales Court of Criminal Appeal CITATION : Regina v Velevski [1999] NSWCCA 96 FILE NUMBER(S) : CCA 60457/97 HEARING DATE(S) : 02/12/98; 14/12/98 JUDGMENT DATE : 10 May 1999 PARTIES : Ljube Velevski (Appellant) The Crown (Respondent) JUDGMENT OF : Grove J at 1; James J at 117; Kirby J at 184 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70042/95 LOWER COURT JUDICIAL OFFICER : Dunford J COUNSEL : C.J. Maxwell QC ( Crown) T.L. Buddin SC with A.C. Haesler (Appellant) SOLICITORS : S.E. O'Connor (Crown) Murphy's Lawyers Inc (Appellant) CATCHWORDS : Criminal Law - murder - deaths of appellant's wife and three children - whether verdicts of guilty of murder unreasonable and not supported by evidence DECISION : By majority appeal against conviction dismissed IN THE COURT OF CRIMINAL APPEAL 60457/97 GROVE J JAMES J DAVID KIRBY J Monday 10 May 1999 REGINA v LJUBE VELEVSKI JUDGMENT 1 GROVE J: After a trial extending almost two months, the appellant was convicted on four counts of murder. The victims were his wife Snezana, his daughter Zaklina aged six and his twin daughters Daniela and Dijana aged three and a half months. The appeal challenges conviction only, senior counsel for the appellant having indicated that it was not intended to pursue application for leave to appeal against sentence. 2 The appellant and the victims lived in a newly built residence at 10 Castle Court Berkeley, a suburb of Wollongong. As at June 1994 when the deaths occurred they had resided there for about 18 months. The other usual occupants of the house were Petre and Tasa Velevski, the appellant's parents. It will not hinder clarity and avoid much repetition if various members of the family are referred to on occasions simply by their first names. A central, and the most prominent, issue at trial was whether the Crown had excluded any possibility that Snezana had killed the children and then committed suicide. No one contended, as obviously it could not be, that the three children were other than victims of murder. Throughout the trial the Crown case that the appellant was the perpetrator of the four killings was frequently referred to as murder/murder and the hypothesis that Snezana had killed the children and then herself as murder/suicide. It was useful terminology which I will adopt. At about 4pm on Monday 20 June 1994 Police Constables English and Gray responded to a message to call at the residence 10 Castle Court Berkeley. They found in the house the appellant, a niece of his (Dianna Nadjovski) and persons whom they described as two elderly females and two elderly males. One of the latter was the appellant's father Petre. The appellant told police that he had not seen his wife and children since the previous night; that his wife had taken the children (into the bedroom) and locked the door. The "privacy" locking device operated when a button on the inside was pressed. The door could be opened from the outside by the insertion of a flat projector into a rectangular slot on the outer door handle. A screwdriver, a "paddlepop" stick or similar would perform the function. The appellant denied knowledge of how to unlock the privacy device externally. 3 Constable English was able to peer through a gap at the bottom of the door and she saw bare legs of a human being apparently lying upon the floor. Attempts to force open the door without an implement were unsuccessful and Constable Gray and Petre went in search of a screwdriver. The appellant also left the doorway and returned with a hammer which he gave to Constable English. She used this to break through the door and she put her hand inside and released the lock by turning the inside handle. 4 The evidence included both video and still photographs of the scene which confronted the entrants. Within the room in a gap between a large double bed and a baby's cot were the bodies of the four victims. They were stacked in a formation commencing with the bodies of the twin babies (each of whom was clothed in a sleeved and collared sleeping bag) face downwards directly on the floor; Zaklina's body was over the twins with her upper portion resting across them and Snezana was prone above the bodies of her three children. Later, a knife was located near Zaklina's face on top of the bodies of her sisters. One of Zaklina's legs was raised in a stiffened fashion. In each case death had been caused by the individuals' throat being cut. The knife found was capable of inflicting the various wounds and being the relevant weapon. 5 Upon questioning by police the appellant denied any complicity in the killings. The death scene and other surrounding circumstances provoked particular interest and some controversy among forensic pathologists and it will be necessary to elaborate evidence which they subsequently gave and this can conveniently be done when dealing with ground 6 which asserted that the verdicts were unsafe and unsatisfactory. 6 In final form the grounds of appeal relied upon the appellant were as follows: "1. His Honour erred in leaving the case to the jury. 2. His Honour erred in his direction in relation to circumstantial evidence. 3. His Honour erred in relation to his directions on lies. 4. His Honour erred in his directions in relation to onus of proof. 5. His Honour erred in not giving appropriate directions in relation to the use that the jury could make of the evidence of Petre Velevski. 6. The verdict was unsafe and unsatisfactory." 7 Ground 1 can be dealt with in the context of ground 6 and will not require separate reference. 8 Mr Buddin SC with Mr Haesler for the appellant (neither of whom appeared for the appellant at trial) submitted that grounds 2 and 4 "drew their colour" from each other and were considerably interdependent. 9 The first complaint in respect of those grounds referred to his Honour's instructions to the jury concerning the drawing of inferences. His Honour had given this general direction: "As ordinary citizens you are not expected or required to leave your commonsense behind, but you are expected to apply such ordinary commonsense to the evidence that you have heard and to your assessment of the witnesses and, just as you do in your ordinary everyday lives, it is open and proper for you to draw inferences from the direct evidence which you find established. In other words, having heard the evidence, you may take the view that if certain facts are proved, well then, it follows naturally and logically from the facts that have been proved that other events occurred or that other facts are established. That does not mean, of course, that you can guess or speculate. There are some inferences that follow logically from the facts that have been proved directly whilst there are other ideas that would be pure guesswork or speculation. As I say, you must not guess or speculate but it is proper for you to draw inferences which logically follow from the facts that you find proved in any other way." 10 It was not suggested that this direction, couched as it was in terms customarily used was erroneous but it was complained that there was a requirement to link the direction specifically to the instant case. The submission however did not include an articulation of exactly what it was asserted that his Honour should have said. The jury had been told without objection that it seemed to his Honour that the only issue in the case (of which the jury was then and there told it must be satisfied beyond reasonable doubt) was whether it was the appellant who did the killings. 11 Other passages in the summing up which it is unnecessary to recite emphasized the necessity for a finding of guilt to be made beyond reasonable doubt and that such a finding necessarily excluded the possibility of innocence. Nothing said by his Honour to the jury appears to me to be inconsistent with authority, for example Chamberlain v The Queen (No 2) 1983 153 CLR 521 and the cases cited particularly by Gibbs CJ and Mason J @ p 535-7, nor is there inconsistency with anything later said in cases such as Edwards v The Queen 1993 178 CLR 193. The argument contended that there was a lack of adequate assistance to the jury but such a submission cannot succeed in abstract and there was no description of the precise assistance said to be missing. I do not perceive any gap in his Honour's directions to the jury. 12 A further complaint was the asserted failure to identify "some intermediate facts" which were indispensable to proof of the Crown case. The language of the submission had its genesis in statements such as those of Dawson J in Shepherd v The Queen 1990 170 CLR @ p 579 where he said that "It may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt." The intermediate facts were stated in this case to be that the Crown had to prove that the killing of Snezana was murder; that it was not suicide and, it had to establish the opportunity of the appellant (to perform the killings). These so described intermediate facts are no more than ingredients (even if one is expressed in negative language) of the central fact requiring proof namely that the appellant was the perpetrator. 13 The complaint in the ground concerning onus of proof was based upon this passage in the summing up: "But before you can convict on circumstantial evidence you must be satisfied beyond reasonable doubt that the facts as found by you are inconsistent with any other rational conclusion than that the accused is guilty. But that does not mean that you should consider each circumstance by itself and consider whether that circumstance is consistent with innocence, and then move on to the next circumstance. It is the combination and the totality of the circumstances that you find proved that you must look at and you must consider whether that combination and totality of circumstances is consistent with innocence. If it is, it is your duty to acquit. But if, having regard to the nature, the totality and the combination of circumstances, you are satisfied beyond reasonable doubt that the circumstances are consistent only with guilt, then it is your duty to convict. In the context of this case that means that you must be satisfied beyond reasonable doubt that the killer could not have been Snezana Velevska, the murder suicide theory; that it could not have been Petre or Tasa Velevska, the only other persons in the house that evening, and could not have been someone from outside the house. It has not been suggested it could have been some one from outside the house. Tasa is, we are told is infirm and partially crippled, and Petre has denied doing it. The defence case has been fought on the basis that it was, or could have been, Snezana who did it." 14 It was argued that the expression "consistent with innocence" appearing twice in the above passage was, on first appearance suggestive and on second appearance effective, of reversing the onus of proof. I am unpersuaded that such a conclusion is fairly open. In context, his Honour was elaborating the meaning and application of his instructions concerning the appellant's entitlement to be acquitted unless the jury were satisfied beyond reasonable doubt that the facts were inconsistent with any other rational conclusion other than that the accused was guilty. 15 I would reject grounds 2 and 4. 16 In similar terminology to grounds 2 and 4, ground 3 simply made a general assertion of error. Specific matters were raised in submissions. Near the commencement of his charge to the jury, the learned trial judge gave conventional directions as to the use that might be made of the lies and they followed the broad lines of the contemplations offered in Reg v Lucas (Ruth) 1981 QB 720 in particular when referring to the motive for lying the expression "consciousness of guilt" was used. As recognized in Edwards v The Queen that expression may in some contexts be synonymous with admission of guilt. Further objection was taken to his Honour's remarks about independent proof of falsehood. He had said: "The fourth matter is that you must be satisfied that it was a lie, either because it is proved to be such by independent evidence which you accept, or because the accused has said something inconsistent with it - that is, he gives two inconsistent versions of one offence (sic - event?) in which case at least one of the versions must be false, or if the accused has admitted what he said was false." 17 However he concluded this portion of his charge immediately following the extract above cited with this caution: "But, bear this in mind, the accused is not charged with telling lies but with murder; and you must not convict him of murder simply because you find he told lies. Lies are only relevant in accordance with the principles I have just given you if they amount to circumstances which, along with other circumstances, satisfy you beyond reasonable doubt that there is no other rational conclusion but that the accused is guilty." 18 The terms of that direction would exclude any conception that the earlier use of the expression "consciousness of guilt" was intended to convey the sense "admission of guilt". That meaning would not require the addition of other circumstances such as the jury were then told were necessary. Nor am I persuaded that the jury may have been led into error by what his Honour said about independent proof. At this stage of the summing up the guidance being given was significantly abstract and what was said on this issue needs to be understood and seen in the context of the whole summing up. Towards his conclusion his Honour gave the jury a summary focussed upon the crown reliance upon asserted lies in the particular case. It is apparent that the Crown Prosecutor had relied upon three instances, the first and third being statements about problems in the appellant's marriage and his ignorance of how to manipulate the privacy locks in the house. The jury were explicitly directed that they would not take those matters into account at all and, by way of emphasis, his Honour remarked that the evidence in relation to the third instance showed that the appellant's claim of ignorance concerning the locks may well have been the truth. 19 As to the remaining matter the jury were directed: "The next matter that the Crown says was a lie that he told, was that he spent from 1pm to 6am in Zaklina's room and that he slept from about 3 or 4pm until 6am the next morning. The Crown says that this is proved to be a lie firstly as a matter of common sense, sleeping for that long. There is Dr King's evidence and the Crown says that there is Mr Petre Velevski's statement in his first statement about him being out on the Sunday evening, if you are satisfied that that is established. The Crown submits the reason for this lie, and you will remember I said you have to be satisfied that (a), that it was a lie and (b), that it related to a material matter and the Crown says that the reason for this lie is to give him a type of alibi that he was asleep and therefore he did not do it. On the other hand, in relation to that, it is submitted on behalf of the accused that the fact that he and his parents heard nothing proves that it must have been a murder caused by Snezana, and therefore there was nothing to hear, so it does not matter whether he was asleep or not. That is an issue of fact and you have to resolve that for yourselves." 20 (Dr King was a neurologist who had specialist knowledge of sleep patterns and whose practice concerned persons suffering sleep disorders. He examined the appellant's stated sleep patterns as conveyed to police in the course of various interviews. He testified that it was extremely unlikely that the appellant, if going to sleep between 1pm and 4 pm would sleep through until 6 am the following morning. The reference to "being out" on the Sunday evening is to the statement by Petre to police that the appellant had been out of Zaklina's room on the Sunday evening. In testimony Petre repudiated this part of his statement to police.) 21 The use that the jury might make of this evidence was restricted (consistently with the earlier general direction) in these final observations relating to the Crown case on this topic: "You will remember I told you the four matters that you must take into account in relation to lies and if you are satisfied there (was) a lie, the Crown does not suggest that that is an admission of guilt. The Crown puts it merely, if established, as one of the additional circumstances and the Crown submits that all those circumstances taken together, the combination and totality of the circumstances, will satisfy you that there is no other rational conclusion open than that the accused is guilty, notwithstanding any doubts which may otherwise have existed as a result of the medical and pathological evidence." 22 It was submitted that the alleged inadequacy of directions on the issue of lies (and the significance in the minds of the jury) was manifest in a question received from them in the course of deliberation. 23 The question read: "You directed on Wednesday that one of the three lies presented by the Crown was not proven as a matter of law. Does this preclude the jury from considering other evidence as lies and testing them appropriately against the three criteria; for example the issue of arguments in the house during the days before the killings." 24 It was submitted that this should be viewed as revealing that two suggested lies of the three sought to be relied upon the Crown rather than only one were being considered by the jury. His Honour had said of the assertion concerning the state of the marriage that it "had not been proved to be a lie" and continued "I direct you as a matter of law you would not be able to take that into account as telling a lie" whereas in respect of the assertion of ignorance of the operation of the privacy locks, he had said that the appellant's claim may well have been the truth. Those observations almost inevitably suggest that the jury note referred to the direction about the assertion of lie concerning the state of the marriage where his Honour did couch his directions in terms of lack of proof as a matter of law and it does not imply that the jury were erroneously taking into account the excluded matter which his Honour had described as probable truth. It is true that in the early general directions his Honour had spoken of four rather than three criteria, however the thrust of the enquiry was whether the jury could range outside the matter relied upon by the Crown and his Honour responded by directing the jury that this was not permissible. He mentioned that there were four criteria and I am unpersuaded that any of the events recounted demonstrates that the jury may have impermissibly approached the issue of asserted lies told by the appellant. 25 Ground 3 is not sustained. 26 Ground 5 complained of the absence of directions about the use that might be made of the evidence of Petre Velevski. He had been interviewed by police and it was said that at that time he was "a suspect" although one would not rationally read into that any more than that it would be expected that all those in proximity and with possible opportunity of perpetration would be classified as suspects until eliminated. In this case the evidence revealed three people other than the victims in and about the home at 10 Castle Court and they were the appellant and his parents. There was no evidence suggesting forced intrusion into the house by a stranger. The appellant's mother had suffered a stroke a few years previously and was handicapped and in poor health. It was not suggested at trial nor at the hearing of the appeal that she could reasonably be regarded as a possible perpetrator. 27 Petre Velevski sought to recant portions of the statements to police in particular reference to the appellant having emerged from Zaklina's room on Sunday evening (contrary to his assertion that he had slept from Sunday afternoon through to Monday morning) and the Crown Prosecutor was permitted to cross examine. Reliance was placed upon an observation in Lee v The Queen 1998 72 ALJR 1484 @ 1488: "Even if the trial judge was right to conclude, as he did, that (Mr Calin) could be cross-examined about his prior inconsistent statements and was right to conclude that evidence could be given of those prior statements, it was necessary to identify how those prior statements might properly be used by the jury." 28 No application was made by senior counsel appearing at trial for any specific direction in respect of Petre Velevski's evidence although it should be acknowledged that complaint was made that his Honour's directions were (un) "balanced in favour of the Crown". Such a perception is not reasonably available to be drawn. 29 It is now rhetorically argued the Crown had to eliminate the possibility that Petre said what he did in order to protect himself (from potential culpability) rather than the appellant. In response to the Crown Prosecutor, Petre testified that he had no involvement in the death of Snezana or the children. Immediately following his testimony and in the absence of the jury there is recorded discussion in which senior counsel stated that the accused's "defence" was that this was a homicide/suicide but that he was entitled to put that the Crown had not discharged its onus of excluding Petre as a possible perpetrator although he (senior counsel) did not intend to assert this. The Crown Prosecutor did not dispute this entitlement to argue that proposition to the jury. It is significant however that the appellant's own testimony given later did not include any contemplation that his father could possibly have been the murderer. The accused's testimony included these responses : "Q. I suggest to you that you forced her off the bed onto the ground beside the bed near the cot, and there you cut her throat? A. No, I was not even up. I did not do that, nor did I do this. It has been proved this has been committed by her. Q. I suggest to you that after killing your wife you then set about killing the children? A. No, she killed the children, then she killed herself. Had she not killed the children, then she would not have killed herself." 30 The Crown has submitted that, not only was the defence case advanced to the jury to accord with that evidence, but the absence of any request for direction about the evidence concerning the appellant's father was understandable in the light of the reliance by the defence on parts of it, prominently that he had heard no noise during the night between the Sunday and the Monday. 31 It might be added that reluctance to address to a jury a possibility that Petre may have been the perpetrator would be understandable in the light of the unchallenged evidence concerning his considerable devotion to his granddaughter Zaklina. Subject to exception, such as the first day of term, it appears that it was he that escorted the little girl upon her daily journeys to and from school. The inevitability that the children were victims of murder was accepted and a tribunal of fact might readily reject a hypothesis that the grandfather might have killed the object of such obvious affection and devotion. 32 It was acknowledged that leave was required to argue this ground. Leave should be granted if substance can be shown but in my opinion it was not. The Court did not restrict argument but in the absence of any merit being demonstrated, as was the case, I would refuse leave to rely upon ground 5. 33 The principal thrust of argument was directed to ground 6 within which in practicality ground 1 may be taken to be subsumed. The grounds of appeal were filed prior to the decision of the High Court in Fleming v The Queen 1998 73 ALJR 1. In that case the Court said: "Use of the potentially confusing phrase 'unsafe and unsatisfactory' to cover the several different elements in the subsection is liable to mislead. There is no substitute for giving attention to the precise terms in which section 6(1) is expressed." 34 The Court had earlier said: "Section 6(1) of the Criminal Appeal Act provides that, on an appeal under s 5(1) against conviction, the court shall allow the appeal if it is of opinion that any one or more of three conditions is made out. The first is that 'the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.' The second is that 'the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law.' The third is that 'on any other ground whatsoever there was a miscarriage of justice.' This power to allow the appeal is subject to the proviso that, notwithstanding that the court is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, the court may dismiss the appeal 'if it considers that no substantial miscarriage of justice has actually occurred." 35 The further use of the phrase "unsafe and unsatisfactory" to describe a ground of appeal is precluded: see Regina v Maxwell CCA unreported 23 December 1998. The focus of the argument advanced in respect of ground 6 was upon the first of the three conditions in section 6(1) of the Criminal Appeal Act in essence that the verdict of the jury was unreasonable on the basis that the evidence showed that the Crown had not excluded possibilities which were consistent with innocence as well of course, as the third condition that there was miscarriage to be deduced from the cumulation of matters argued. Recognizing what has now been said authoritatively the submissions advanced should be dealt with in the terms by which they were advanced and the ultimate question remains for this Court namely whether the jury ought to have had a reasonable doubt about the guilt of the appellant. 36 In submissions counsel advanced three groups of numbered "points" which were elaborated both in oral and written form. The groups consisted of eight matters upon the hypothesis that Snezana suicided; seven matters concerning the expert medical evidence and twenty summarized reasons why the verdicts were submitted to be unsafe and unsatisfactory. I will address these groups and their constituents seriatim. 37 The first point was the existence of expert evidence supporting a murder/suicide conclusion. The possibility of suicide by Snezana was canvassed by the six forensic pathologists who testified - Dr Bradhurst, Dr Cooke, Dr Oettle, Dr Collins, Professor Mason and Dr Zillman. Dr Bradhurst had been called to the scene by police. He performed post mortems on the following day and a second post mortem examination later in the company of Dr Cooke. Dr Bradhurst considered that the probabilities favoured murder/suicide and Dr Zillman expressed the same view. The others favoured murder/murder except Dr Cooke who effectively adopted a non preferential stance. It will be necessary to conduct some examination of the views of the pathologists and the bases for them. At present it suffices to observe that there was credible evidence available to the jury upon which they could find that all four deceased were the victims of murder. It is recorded that Detective Whyte testified that he had been informed by Dr Bradhurst that others of his professional colleagues were in support of his view. Professor Hilton, Dr Duflou and Dr Botterill were named but no statement of their concordant views was obtained by police and they were not called. 38 The second point was the ordered way in which the bodies had been assembled which was described as consistent with the conduct of a meticulous housekeeper as Snezana had shown herself to be. This evidence was that she was tidy to the point of obsession. It is understood that none of these points was contended to be offered for assessment in isolation, however it can be observed that the jury had other evidence in particular the video of the scene (exhibit A), the viewing of which offered to the jury an unmistakable implication that someone other than Snezana had also been meticulous about housekeeping. Save the unmade beds in Zaklina's and the parent's rooms and the death scene in the main bedroom, there was not a single sign viewable on the video of any of the common incidents of human occupation of a house. At least Petre, Tasa and Zaklina had eaten a simple meal of potatoes on the Sunday night. Whilst it could not be considered unusual to wash up and clean after a meal, the video shows that nowhere in the house is there to be seen a cup, a glass, a utensil or anything anywhere detracting from what was called "pristine" presentation. The exception may be Zaklina's schoolbag but it can be commented that it would not be surprising if the jury found the video portrayed scenes of striking unreality. The implication that there had been meticulous detailing of the house would be strengthened by the knowledge that Petre and Tasa had, in effect, been bundled out of the house shortly after 6 am on the Sunday with the belongings which they took with them wrapped in a sheet and others said to be left behind for later collection. The video does show some items which undoubtedly were equipments of investigators and would properly be ignored. 39 The next point referred to the absence of signs of struggle and the confinement of blood to the area where the bodies were located. The weight to be accorded to these observations is dependent upon the hypothesis being considered. There would have been little struggle by the twin babies. Zaklina's body manifested a wound which some pathologists thought could be "defensive" but there were no signs of extensive struggle having been engaged in by her. If Snezana was also the victim of murder and she was killed first there would be no specially cogent reason to expect to find signs of struggle. It was well open to conclusion that the circumstances did not necessarily suggest suicide rather than murder. 40 Fourth, it was put that there was evidence that Snezana had resolved to leave her husband and take the children with her "wherever she went'". The evidence emanated from the appellant and was corroborated by Petre's testimony at trial. This was a matter of credibility and the jury had the advantage of hearing the testimony for the purpose of gauging what weight to attribute to it. 41 The fifth matter is an assertion of history of mental illness and depression in Snezana's family said to effect her mother, her brother and herself. The evidence about these matters is ephemeral and some of it contradicts the submission. There is a hospital record that someone was told that Snezana's mother had been taking the drug Sinequan. When, for how long and for what symptoms it was prescribed remain undisclosed. Snezana's brother apparently was recorded as attending Illawarra Health Service at about the time he was making a job application and he gave a history of feeling depressed. Whether this history should be taken in the vernacular or diagnostically is undetermined. 42 Finally in this regard, the suggestion concerning Snezana was based upon a note by a social worker who pressed for a psychiatric consultation apparently as a reaction to perceived inability to establish rapport between herself and Snezana. It is to be observed that an attending medical practitioner (concerning the pregnancy resulting in the birth of Zaklina) had a different impression. A Crown contention that there is in fact no relevant psychiatric history would appear to be correct. 43 The sixth point raises the possibility that Snezana, as at 20 June 1994 was suffering from postnatal depression. The material in this regard is entirely speculative. The evidence shows that in general postnatal depression may not emerge until three to four months after delivery and that the symptoms may be hidden from the consulting physician. The obstetrician attending Snezana Dr Walker, saw her on 29 April and thought that she was exactly the opposite of depressed. He described her as jovial and chirpy, essentially "skiting" about how well things had gone and she was managing. Dr Rao, who was a general practitioner and the family doctor, had known Snezana since she was eleven years of age and he saw her and the children with the appellant in his surgery on 6 May. He said she appeared extremely happy on that day. 44 The seventh matter contended was that Snezana was upset following a phone call on that weekend with her mother. It was said that she relayed to the appellant that her mother had declined to mind the children and thus a proposed shopping excursion would have to be postponed. This was expounded in parallel with the proposition that Snezana was finding it difficult to cope with having her elderly parents in law living with her. Petre Velevski said that he had never heard Snezana complaining to that effect. In the absence of extreme psychiatric disturbance it would be difficult to assess these matters as contributors to a decision to commit murder/suicide. 45 The eighth and final matter referred to the evidence of Dr Wilcox a psychiatrist who had examined available material including reports, hospital files and some transcripts of evidence. She had also viewed the video (exhibit A). She testified that murder/suicide could be considered an act of love and that some people saw this as taking their (murder) victims to a better place. In the remarks attributed to Snezana by the appellant and his father, the concept of such an ascent to a better place did not appear, rather they were limited to saying that the children would accompany her "wherever she went". The appellant said that she proposed that she might take a flat which, in addition to any other objection he had, he considered economically damaging. On analysis the evidence of Dr Wilcox was essentially theoretical. 46 In summary the eight points offered provided little which was probative of suicide let alone compelling towards such a conclusion. It cannot be overlooked that it was incumbent upon the Crown to exclude the possibility of suicide and not for the appellant to demonstrate it, but the matters raised individually and in combination fall far short of demonstrating that a reasonable jury ought not to have rejected that possibility. 47 The next group of propositions related to seven matters concerning the medical evidence, specifically the opinions of the forensic pathologists pro and con the circumstances manifesting murder/murder or murder/suicide. I shall turn to the expert evidence in a little more detail later but brief reference will need to be made in relation to some of this group. 48 First it was noted that all experts were confronted with a highly unusual scene, the stacking of the bodies lay outside the realm of the personal encounter of all experts and the novelty was not removed by reference to any published experience of others. It was contended that therefore the opinions were contaminated by both speculation and guesswork. Assumptions are frequently made by experts and it was for the jury to find which facts were established and then integrate those facts with relevant acceptable opinion. 49 Second it was put that those experts "disposed towards the Crown theory" were unable to provide a plausible scenario as to how the appellant is said to have committed the offences. It is trite to say that it was incumbent upon the Crown to prove that the appellant was the perpetrator of the killings and not that it had to prove all of the detail of the actions constituting homicide. In short, the Crown was required to prove that the appellant cut the throats of the victims thereby causing their death. Obviously it would be fortifying to identify more elaborately the mechanics of the killings but to say that a plausible scenario is absent does not inevitably raise a doubt about the identity of the perpetrator. The submission on behalf of the appellant did carry a hint of hyperbole. The Crown Prosecutor had explicitly put to the appellant that he had taken Snezana unawares and killed her, with other events following in succession, and it is clear that the jury did not find those circumstances, nor were they, implausible. 50 Third, the advantages of Dr Bradhurst who was the only pathologist who saw the bodies in situ, who conducted the post mortems and who had a three dimensional perspective of the scene in the bedroom, must be recognized. I agree, but it does not follow that his opinion must inevitably be preferred. 51 The fourth point notes the support of Dr Zillman for Dr Bradhurst's view (that he favoured murder/suicide) and the reported agreement of his colleagues, Professor Hilton, Dr Duflou and Dr Botterill. The fifth point adds that the only other pathologist to be present at a post mortem was Dr Cooke and he was unable to reach a concluded view in favour of either murder/murder or murder/suicide. 52 The sixth point was that those experts who favoured the Crown case were reliant upon photographs to form their opinions. Dr Zillman who favoured the murder/suicide proposition was in the same situation. The point was essentially a corollary of the observations concerning the advantages of Dr Bradhurst. Reference was made to the criticism of the use of photographs by experts in R v Manley CCA unreported 15 December 1994 where it was said: "Both commonsense and the observations of Dr Collins required the most careful consideration of the weight, and of the reservations called for as to the reliability, of any expert opinion based on suggested observations in the photographs and slides. The potential unsoundness of relying upon such an opinion, particularly where it was in conflict with or not supported by the qualified expert who examined the body and made the relevant histological examinations, is obvious." 53 That extract of judgment must be assessed in the context of the issues then under examination. Whatever handicaps existed in the present case were explored in the evidence and I do not regard the statement in Manley as authority for the proposition that in every case in every circumstance, opinion based upon examination of photographs is to be treated as unsound. I did not understand the submission to advance to that point. It should be noted that much of the evidence given by the various pathologists was not evidence of what they observed either from inspection of the bodies or from photographs, but evidence of inferences by them, based on what it was common ground could be observed and therefore what had probably happened in the bedroom of the house, and it was open to the jury to take the view that no one of them, Dr Bradhurst included, was in a significantly better position to draw such inferences. 54 The final point adverted to asserted reliance on non medical matters and intuition. Reference was made to the absence of history about Snezana's current medical condition and her family history but as noted in earlier analysis, there was no evidence that Snezana was affected by any relevant medical condition and the family history as described in the submission was to a significant extent fallacious. 55 I turn next to the twenty matters (additional to the foregoing) summarizing the submission that the verdicts were unsafe and unsatisfactory. 56 First it was stated that "such was the state of the investigation" that no arrest was made for six months. I am unable to perceive how this would contribute to any indication about the safety of the verdicts. Presumably investigators had received the opinion of Dr Bradhurst and that would make it imprudent to pursue investigation with undue haste. The lack of haste of investigators is scarcely a test of the ultimate validity of what they discovered. 57 Next it was observed that there was no forensic evidence to link the appellant to the crime. Mention was made that there were some fingerprint markings on the handle of the knife suggesting that it was not wiped as one might expect if an attempt to avoid detection by that method were being made. Somewhat in counter balance to that observation however, the evidence shows that Snezana's hands were heavily bloodied and if she had wielded the knife it became surprising that significant blood was not transferred to and did not remain upon the handle. 58 Third the evidence was that the appellant was to all appearances a good and loving father. No motive was established and Snezana's announcement that she intended to leave (made, according to the appellant, for the first time on the Sunday) would provide an unconvincing motive for annihilating the family. Inability to determine motive has been a concomitant of horrendous crime not infrequently in reported history. It is not the duty of the jury to acquit when something of undoubted interest but not required to be established by the prosecution, remains shrouded in mystery. 59 Fourth the appellant voluntarily complied with requests to provide fingerprints, blood and hair samples and it was said that he therefore did not do anything other than assist police. It certainly can be said that he did not obstruct the police enquiries but whether he assisted them would be a conclusion dependent upon where the truth lies. 60 Fifth it was noted that investigators conducted a most comprehensive forensic examination of the house and the appellant's clothing and there was "no result". That consequence would be consistent with murder/suicide but most unexpected if murder/murder had taken place and the murderer needed to eliminate traces of his activities. 61 Sixth there was no evidence of attempted removal of bloodstains and the opinion of forensic examiners was that it is almost impossible to extinguish stains completely. 62 Seventh, the appellant had no background of violence or mental instability. 63 Eighth, no one inside or outside the house heard any sounds which "would have undoubtedly accompanied a murder". The basis for this assumption is not apparent but it is true that neighbours were from time to time able to hear sounds emanating from the house and the building was not what might be described as acoustically sealed. The only occupants of the house who testified were the appellant and his father. 64 Ninth it was said that there was no evidence that the appellant had the opportunity or the capacity to return the house to "its pristine condition" after the event. The absence of opportunity is significantly dependent upon the credibility of the appellant's assertion that he was in Zaklina's room from 1pm on Sunday until 6 am on Monday. No direct testimony related to the appellant's capacity as a housekeeper although, as earlier commented concerning the appearances on the video, someone had put the house into a virtual showroom condition with the exception of the bedrooms. 65 Tenth, having regard to the appellant's background and labouring occupation it was said to be difficult to conceive how he could recreate the scene so as to delude the experts, including Dr Bradhurst in particular. 66 Eleventh, it was contended that if the offences were planned and the scene recreated it might have been expected to have been better done. Examples were suggested that the killings might have taken place away from the house; or a break-in might have been staged; or the parents removed beforehand or the knife placed in Snezana's hands. These were, of course, recognized as speculations. 67 Twelfth, it was argued that if the appellant recreated the scene to give the appearance of suicide, it was inconsistent with that objective to be reluctant to discover the bodies and also inconsistent not to embrace the proposition of suicide when he was questioned by police. By the time of trial the appellant had however embraced the proposition that Snezana had suicided as is manifest in the extract of evidence set out above. 68 Thirteenth, it was observed that nothing incriminating derived from listening devices which were put in place or from interception of telephone calls. It might scarcely be expected that any murderer who had acted alone would discuss his crime although investigators may hope that something inconsistent with a posture adopted by a suspect could be said. The mere absence of useful product from listening devices and telephone intercepts would not logically cast doubt upon incriminating evidence. 69 Fourteenth, if the appellant was guilty he must have over an extended period maintained a charade of considerable effect. There is nothing to suggest that he had the talent to be a self possessed and clever actor: cf Chamberlain v The Queen (No 2) supra. 70 Fifteenth, there was no evidence that the appellant knew how to gain access to the bedroom through the locked door. As mentioned already, the learned trial judge directed the jury that the appellant's claim in this regard might well be true and the Crown argument that he lied about it had to be rejected. 71 Sixteenth, it was rhetorically asked why any murderer would arrange the bodies and risk the possibility of leaving clues (including the knife) at the scene. 72 Seventeenth, it was noted that the testimony of the appellant at trial was entirely consistent with his responses to lengthy and repeated interrogation by police. 73 Eighteenth, the appellant appeared to be grief stricken in the days following the deaths. 74 Nineteenth and twentieth, the submissions were reiterated that the Crown had failed to exclude the reasonable possibility that either Petre was responsible for murder/murder or that Snezana had murdered the children and then committed suicide. 75 Many of the propositions in the foregoing three groups were couched in negative and rhetorical terms. That is not said by way of criticism and such an approach is to be expected when the focus of argument is upon whether a hypothesis consistent with innocence has been excluded. There was and is no onus on the appellant to establish any such hypothesis. Nevertheless the matters raised do not in my view demonstrate that the jury ought to have had a reasonable doubt as to the guilt of the appellant if it was open to them to find the Crown case proved. To be so open it was necessary for the jury to reject the opinion of Dr Bradhurst (supported by Dr Zillman) and be satisfied that murder/murder had been committed. That is not to suggest that it was open to the jury to convict on the basis of selected acceptance of forensic pathological opinion alone, this was not contended by the Crown and the jury were directed appropriately. 76 Some further observations should be made concerning the forensic material which gave rise to the difference of opinion among the experts. 77 When her body was found Snezana was wearing a pink coloured nightdress and a cream/white bed jacket as well as undergarments consisting of a brassiere and pants. The testing of heavy blood staining on the night dress and bed jacket revealed that fourteen examined areas on the back of the night dress produced readable results showing that five of the areas were Snezana's blood; two of the areas were blood from Zaklina; four of the areas were blood from the twins and three areas were mixtures. Of the lastmentioned, the analyst identified one mixture as blood of Snezana and one of the children but she could not say which; one mixture was of blood from Snezana and Zaklina and the final mixture consisted of sources which she could not identify. The bed jacket produced seventeen readable results from testing blood staining on the back. Four areas originated from Snezana; three from Zaklina; three from the twins and seven areas were mixtures. Of the seven mixtures one was identifiable as sourced from Snezana and Zaklina; three contained contributions of Zaklina's blood, and three were mixtures of which the source was unestablished. 78 There were also established test results from the fronts of the garments. No blood sourced from the twins was identified from the areas tested in the fronts. It was of considerable significance that the bodies were stacked with Snezana prone on top of the children, yet blood from all victims was on the back of both Snezana's outer garments. The twins were identical and blood distinction between them was not possible and it would be futile to seek to distinguish whether particular blood came from Daniela or Dijana or vice versa. Another aspect of blood staining relates to the area of wall in the region of the bed head. There was blood spatter extending to an area which was behind the mattress and base which were positioned between the bedside tables. As senior counsel for the Crown observed, expertise was unnecessary to conclude that (even if the heavier observable staining could have resulted from blood passing under the base) that the upper spatter could only have been deposited if the mattress and base were away from the wall. The suggestion on behalf of the appellant that the bed may have been moved by police or ambulance lacks any support from the evidence. The blood on the plaster wall was examined after a section of the wall was cut out. Four areas were subjected to identification testing and all were sourced from Snezana. Although, as will later be mentioned, there were two major wounds to Snezana's throat, there is obviously difficulty in attributing credence to the murder/suicide theory if it is her blood on the wall (as it was) and the bed has been moved back into place after that blood has been expelled from her stabbed body. 79 The next matter recorded before turning to some testimony of the pathologists is that, although the lower part of Snezana's body was clear of the stack and all wounds were to the throat area, there appear three marks on the outer aspect of her left leg between knee and ankle level. These marks are more or less parallel and they are suggestive of fingermarks such as might be caused if the body was being grasped by a bloodied hand. (The marks are visible in photograph 16 of Exhibit B for example but they are far more clearly depicted in the video, Exhibit A). There is pathological opinion supportive of the view that those stains could have been caused by fingers. Snezana's lower limbs were splayed well clear of the substantial blood pooling and soaking near the bedside table and bed head. 80 Dr Bradhurst supported the probability of murder/suicide. He expressed reliance upon a combination of factors and mentioned the "quietness" of the scene, the absence of apparent aftermath of struggle, the superficial cuts along the edges of the wounds and the absence of "defence" injury as matters pertinent to his opinion. His advantage as the first expert pathologist on the scene and as the performer of post mortems was recognized. 81 There were, however, aspects which were in my view capable of persuading a tribunal of fact acting reasonably to decline to rely upon Dr Bradhurst's opinion that murder/suicide was probable or even possible. It could be regarded as significant that his opinions were initially formed, and subsequently adhered to without being aware that the blood on the night dress and jacket worn by Snezana included blood of the children on the parts already described. He accepted, as the jury might have, that if Snezana had been taken unawares the factors of quiet scene and absence of struggle or defence injuries might be expected in any case. There was contradiction between the experts as to whether the superficial cuts should be interpreted as hesitation wounds such as a suicide might make or simply products of the use of a weapon with an irregular blade such as the knife found at the scene. 82 When questioned about the results of testing of Snezana's garments he gave this evidence first in relation to her own blood on the back of the clothing: "Q. Can you offer any explanation as to how there is some of her blood on the back of her night jacket? A. Yes. Q. If she has committed suicide in that way? A. If she did commit suicide - one scenario I suggest for that would be that, if in fact she did kill the babies and then commit suicide, that she had, in the process of committing her death, she was at first lying with her back on the floor and she had had some attempts at cutting her throat and with bleeding going on the floor and also at that time perhaps cutting her - into the wind pipe or her - below her thyroid cartilage into her airway and blood would have run down on to the floor and may well have got on to the back of her clothing in that way. I am suggesting she is taking some time to die, to go through the process of death or causing death. Q. After she bleeds in that way, she stands up and falls forwards on to where the children where? A. Yes, well she hadn't managed to kill herself at first although there is considerable bleeding having occurred and also some spray from her cut vessel going on the furniture as it was seen and also her coughing blood from her airways and that projected cough blood going there but, more important, more blood going on the floor from the cut vessels, but then after a period of time finding that she still hadn't died, to (sic) places the children in the position they were found and doing the final cuts on top of them in the way that she was found. Q. Would she have the strength to get up and do that if she previously cut her throat and suffered a blood loss such as appeared on the back of her night jacket? A. I believe that she would have been able to have the strength to do that because of recorded cases previously of witnessed suicide in this way, that there seems to be an extra reserve of strength that they have that they were able to do what to, I am sure, to you and to myself would seem amazing acts or feats." 83 And second, in reference to that and the children's blood being also on the back of the clothing he testified: "The blood on the back of her clothing is hard to explain whether self-infliction or homicide. If her cut throat was self-inflicted after dealing with the children it is possible that the blood came from her holding the child and the babies to her shoulder after their throats had been cut and/or during the act." 84 It was uncontradicted evidence that Snezana's throat was cut by two deep wounds (both, if the murder/suicide theory be correct, inflicted by herself) one penetrating about 5 mm into cervical disc 5-6 and the other penetrating about 20 mm into cervical disc 4-5. No one purported to be able to determine which of those two wounds was inflicted first. 85 The jury also had evidence of the blood spatter and the conclusion that the bed had been moved after Snezana's blood was deposited on the wall. In my view, the jury was entitled to regard the above explanations concerning the blood as incredible and Dr Bradhurst's evidence as being insufficient to raise any doubt about the conclusion that what had occurred was murder/murder rather than murder/suicide. 86 Support for Dr Bradhurst had been given by Dr Zillman. As confirmed in his testimony his opinion was dependent upon a hypothesis that the wounds to Snezana's throat were inflicted in two separate stages and to coordinate that circumstance, inter alia, with the blood on the back of her clothing he proposed that (wounded in the throat) she would have been on her back when she "re-arranged the children" and "it is likely she rolled back onto her knees". A reading of the examination and cross examination of the witness reveals less than convincing responses particularly to challenges offered in cross examination. 87 I am unpersuaded that it would be unreasonable for the jury to discard Dr Zillman's opinion. The firmest rejection of the murder/suicide theory can be perceived in the evidence of Dr Oettle. In recapitulating the reasons for his opinion that Snezana was the victim of homicide he mentioned factors such as the lack of evidence of spray of her blood over the bodies of the children, the appearance that the nightdress was displaced and which signified movement of the body after decease, the bloodstains on the leg which were consistent with being caused by a hand, a rearwards displacement of a hair clip such as would accompany someone taking hold of the woman by the hair of her head, the incompatibility of her heavily bloodstained hands with the comparatively little blood on the knife handle and blood smears about the buttock of her night dress which would have been most unlikely to have been made by her. 88 Dr Oettle opined that the murder/suicide thesis was contradicted by the presence of the blood of both Snezana and the children on the back of her clothing and (with the exception of one site) the absence of the children's blood from the front of her clothing. It is to be remembered that if the murder/suicide theory is possibly correct the children must have been killed and then Snezana suicided above their bloodied bodies. 89 Dr Collins expressed considerable doubt about the self infliction theory. He made reference to a variety of factors and there was, as would be expected, coincidence of reference amongst the experts to many factors whether or not their ultimate views coincided. Dr Collins adverted to conjunction of factors mentioning asphyxial type petechial haemorrhages, perceived bruising and abrasions particularly abrasion located above the right margin of the deeper neck wound, the involvement of the spinal cord in the wound, an injury to the right thenar eminence (an unlikely self inflicted cut by a right handed person such as Snezana wielding a knife), the damage to necklaces still around the neck (a suicide would be likely to bare the target area in contrast with an attacker who takes a victim as found), a perceived inconsistency between the position of the body when found and the distribution of blood, the absence of the children's blood from the cuffs of the night dress, the heavily bloodied hands contrasted with the small staining of the knife handle and the raised situation of Zaklina's leg which he thought attributable to rigor mortis and, as it was unsupported by Snezana's body, an indication that Zaklina's body had been moved after rigor mortis developed, that is some time after death. 90 The lastmentioned was the subject of extensive enquiry at trial and it provoked expression of diverse views. In isolation it was not determinative of any issue at trial but one of the many factors and complexities which were analysed by the witnesses and ultimately were for assessment by the jury. 91 Professor Mason was consulted as a result of a letter (Exhibit AA) from Dr Bradhurst (with whose opinion he ultimately did not concur) to the solicitor with carriage of the matter on behalf of the Director of Public Prosecutions. The content of the letter read in relevant part: "During a recent visit overseas, the Director of this Institute (NSW Institute of Forensic Medicine) Professor John Hilton, discussed pathology findings in the Velevska deaths with Emeritus Professor of Forensic Medicine, Professor J.K. Mason, of the University of Edinburgh. Professor Mason showed considerable interest in the case and expressed willingness to give his opinion on the pathology findings if requested to do so." 92 Professor Hilton was one of the pathologists mentioned by Detective Whyte as having indicated agreement in the views held by Dr Bradhurst. The circumstances were counter suggestive that Professor Mason's opinion was sought with any particular expectation that they might support the Crown's charge against the appellant. His ultimate opinion was that the cutting of Snezana's throat was probably homicidal. Part of his evidence included: "I thought perhaps the most significant aspect of the scene is the distribution of arterial blood spatter on the wall and bedside chest. All the blood, as I said, was from Snezana and all is low down. In my opinion, the distribution of the bloodstains is directed on the wall, very directional on the side of the locker and moderately directional on the front of the locker. All that places Snezana with near certainty, to my way of thinking, on the floor where the bed now stands and in front of the locker when her throat was cut. It follows that, in my view, both she and the bed must have been moved later." 93 Dr Cooke stated that he could not form a preference for murder/murder rather than murder/suicide. Like his colleagues he was examined and cross examined about factors which could be argued pro and con those theories. 94 The essence of the issue raised by the appellant in respect of ground 6 is whether the evidence as a whole when examined by this Court was such as that the jury ought to have had a reasonable doubt about the guilt of the appellant. The Crown case did not assert that conviction could follow acceptance of supporting pathological evidence alone and the case was not left to the jury by his Honour on such a basis. Once it is determined that it was open to the jury to discard the murder/suicide theory beyond reasonable doubt, it follows that it was reasonably open to find murder/murder proved. The acceptance of evidence of pathological evidence in support of murder/murder establishes that Snezana (and the children) were murdered by someone and what remained for the Crown was to prove beyond reasonable doubt that the appellant was the perpetrator. 95 The onus and standard of proof prevent any criminal trial from being a mere contest between two bodies of evidence supporting contrary conclusions and the rejection of one body of evidence does not equate to proof of the other. Nevertheless, in this case the occurrence of crime (murder/murder) was capable of being proved by the unqualified rejection of one (murder/suicide) of two competing hypotheses. A third possibility of death by accident can be regarded as fanciful. 96 The remaining question therefore was whether it was open to the jury in the sense that that expression bears in accordance with authority to find that the circumstantial evidence proved that the appellant was the perpetrator. 97 The circumstantial case was centred upon activity (and inactivity) of the appellant at relevant times. I refer to matters germane to proof that the appellant was responsible for the killings which were in my view open to be found by the jury. 98 The appellant's assertion that he was in Zaklina's bedroom from 1pm on Sunday until 6 am on Monday was vulnerable and capable of being reasonably rejected (Dr Bradhurst's assessment that the deaths occurred 9 pm and 5 am was not disputed). Thus the unbroken stay in Zaklina's bedroom, if true, operated to provide the appellant with an established alibi. The claim was undermined by various evidence. It may have been regarded as inherently unlikely that the appellant would spend 17 hours in a room without ever emerging for the purpose of food, drink or toilet. He conceded in evidence that he had had his usual quota of sleep on Saturday night rising at about 8.30 am on Sunday after retiring after midnight. He had never slept for 17 hours even after working triple shifts and he said he had no idea why he slept for so long and he specifically did not attribute the occurrence to any feeling of depression or the like. His usual pattern was to sleep for 7 hours. In addition to the inherent unlikelihood of sleeping for that length of time, the evidence of Dr King mentioned above was that it was very unlikely that the appellant would have slept for that period. 99 There were significant contradictions of the appellant's claim in this regard in evidence of others about conversations he had with them close to the time of the events. For example, Toda Glavevski gave evidence that in a telephone call on the Monday evening the appellant mentioned that he had been in the loungeroom at about 5 o'clock when Snezana made "milk for the kids" and went back into the room. And Ana Jorge who lived at 11 Castle Court saw her husband who had returned from work at 2.40 pm on Monday later answer the door to the appellant. She approached during their conversation and heard the appellant say that (Snezana) was locked in her room (at) 7 o'clock in the afternoon but came out at 8 at night because she was hungry and wanted something to eat. It was for the jury to assess the credibility of the witnesses and the appellant's assertions that his remarks had been misunderstood or misinterpreted. 100 Petre Velevski gave corroborating evidence on this topic but it was opposed to what he had told police shortly after the events including that he had had dinner with the appellant at about 8 pm on the Sunday evening. The appellant had also told police on 20 June that he recalled seeing Snezana packing the Monday school lunch for Zaklina. According to the evidence of Petre this school lunch preparation occurred on the Sunday evening. 101 Not only was it open to the jury to reject the claim that the appellant was in the bedroom for 17 hours, I am of further opinion that it could reasonably be concluded that the appellant's assertion was a lie told in consciousness of guilt. It is not necessary to recapitulate the matters canvassed concerning ground 3. 102 Next the appellant had given evidence that when he got up on Monday morning and knocked on the bedroom door he did not then think that Snezana might not be there, in other words he believed that she was inside the (locked) bedroom. In these early hours the appellant asked his parents to leave the house and he gave evidence that his intention was to remain on his own with his wife so that he could find out what was the matter. Given that state of mind and the absence of any reason for thinking to the contrary, it must have been appreciated that it was highly improbable that Snezana would be anywhere else than in the bedroom. There was evidence that she did not drive a motor car and if she were to leave the house she would need to have taken with her a six year old and three month old twins. If they were left behind unattended (and alive) their presence would hardly have remained undetected. 103 The significance of the appellant's belief that Snezana was in the bedroom was that the jury might well consider that the appellant's conduct in not continuing to knock on the door, not calling out, not attempting to look under the door (as Constable English was able to do) and not attempting by some means to obtain access to the room was inexplicable except on the basis that he knew what was to be found in the bedroom. 104 The departure of the appellant's parents occurred in quite extraordinary circumstances. They were asked to leave at about 6 am. It was still dark and a winter's day. Tasa was old, in poor health and had to be woken in order to be required to depart the house. The background showed that Petre and Tasa had migrated to Australia in mid 1989 and had lived continuously with the appellant and his family, first at their house at Cringila and later at Castle Court, the only break being a short time when the parents had left the home at Cringila. 105 It was open to the jury to reject the explanation that the removal of the parents from the home was explicable on the basis claimed by the appellant particularly as his later conduct did not reveal realistic pursuit of his wife in order to find out what was the matter. 106 The appellant claimed to be genuinely seeking to communicate with his wife whom he believed was in the bedroom but his conduct was inconsistent. He took his parents to his sister's home but on return to Castle Court he did not make any attempt to communicate through the bedroom door or to see if it could be opened or indeed to see if his wife, as he previously believed was still there. 107 On the Monday the appellant told a number of persons that he had received advice from a social worker (Mrs Nicolovska) that he should not try to find his wife for 24 hours, the recipients of this assertion included his sister Rada Nadjovski and Mr and Mrs Jorge. In fact Mrs Nicolovska who was a social worker at the Macedonian Welfare Association said that in a conversation with the appellant she had done no more than suggest that if he had not heard from his wife and children by about 3 o'clock he should contact the police. 108 The appellant in the course of perambulations on the Monday called at Zaklina's school to see if she was there, producing notes which he said he had found in her school bag explaining her absence from school on the previous Friday. The appellant must have known that Zaklina had not been taken to school by her grandfather in accordance with the ordinary routine as he had taken his parents to his sister's place. If Zaklina had gone to school then he was aware that she was without her school bag which was at home. It was open to the jury to find that calling at the school was not part of any genuine attempt to locate his daughter. 109 An extraordinary omission by the appellant was the absence of attempt to ascertain whether his wife (if he had departed from the belief that she was in the bedroom) was at her parents' home. Both his sister Rada Najovski and the social worker Mrs Nicolovska had suggested that he should enquire there. It would not be surprising if the jury regarded his testimony that he did not know the telephone number of his parents in law as specious but in any event he knew where the house was, had transport and had been there the previous day in order to collect Zaklina who apparently spent weekends with her maternal grandparents frequently. 110 There was ample evidence from which it could be concluded that the appellant was not making a genuine attempt to find his wife and that the reason for this was that he knew where she was to be found. Important to this assessment would be the credibility of the appellant's explanation and in these regards the advantage of the jury who could see and assess the appellant must be acknowledged. 111 The extensive submissions advanced on behalf of the appellant confirm that there was an arguable case to be advanced on his behalf but to say that an accused person has an arguable case is not the same as saying that there must be a rational hypothesis consistent with innocence. Nor, because it is perceptible that an accused person had an arguable case, does it follow that a jury ought reasonably have a doubt about guilt. 112 The argument before the court largely proceeded in terms of evidence analysis as the foregoing would reflect. It is important not to overlook the supervisory function of this court as distinct from the primary function of the trial court to assess the evidence. An arguable case does not cease to be an arguable case because it has been rejected but this provides no warrant for necessary intervention. The principles upon which intervention may be provoked have been authoritatively discussed, convenient references being found in Fleming v The Queen supra. Recognition of the jury's potential and actual advantages cannot be omitted. In dealing with a suggestion that there was no practical difference between a doubt entertained by an appellate court or one which a reasonable jury ought to entertain (Ratten v The Queen 1974 131 CLR 510) Dawson J (with the concurrence of Gibbs CJ and Brennan J) wrote: "With the greatest of respect for the view expressed by his Honour, it does not appear to me to be circumlocution to speak in terms of a doubt which ought to have been entertained by any reasonable jury rather than in terms of a doubt which the court has. In many cases it may be unnecessary to make such a distinction because a doubt experienced by an appellate court will be a doubt which a reasonable jury ought also to have experienced. But the evidence before the appellate court will seldom, if ever, be in the same form as the evidence before the jury. In particular, a court of appeal does not usually have the opportunity to assess the worth of a witness's evidence by seeing and hearing that evidence given. Moreover, the jury performs its function within the atmosphere of the particular trial which it may not be possible to reproduce upon appeal. These considerations point to important differences between the functions of a jury and those of a court of appeal. A jury is able, and is required, to evaluate the evidence in a manner in which a court of appeal cannot." Whitehorn v The Queen 1983 152 CLR 660. 113 Brennan CJ returned to cite this in Jones v The Queen 1997 72 ALJR 78 and add: "I adhere to that view because the function of a court of criminal appeal is prescribed by statute and the statute is founded on the principle that the jury, not the court, is the constitutional arbiter of guilt. An equation between a reasonable doubt entertained by a court of criminal appeal and a doubt which ought to have been entertained by a reasonable jury is valid only if the capacity for evaluating the cogency of a witness's evidence and the worldly wisdom of a court of criminal appeal are no less than the collective endowments of a jury. Those skills are as material to the propriety of a verdict as the advantages of seeing and hearing witnesses and sensing the atmosphere of a trial. It is a basic assumption of the criminal process that those skills are not equally shared by judges and juries. Exceptionally, judicial experience is sometimes accorded greater weight than the experience of a jury, in which case a trial judge is required to give the jury a warning that alerts them to what judicial experience has shown. Otherwise the courts accept the jury as the possessor of both the skills and the advantages that are required to reach a proper verdict. In my respectful opinion, any contrary approach denies the importance of trial by jury and is inconsistent with the constitutional function which the jury performs." 114 Whilst it is imperative that rejection of the credibility of testimony of an accused be not mistaken for proof of Crown assertion, in the present case it was a critical advantage for the jury to assess whether any credence should be given to the testimony of the appellant and his father. That evidence was reasonably open to rejection and the judgment of the jury in the acceptance of evidence and the conclusions reached have not been shown to be flawed. 115 In the terms of s6(1) of the Criminal Appeal Act I am unpersuaded that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, neither is it established that the judgment of the court of trial should be set aside on the ground of wrong decision on any question of law nor, finally, do I perceive any ground demonstrating that there has been a miscarriage of justice. 116 I would dismiss the appeal and confirm the convictions. IN THE COURT OF CRIMINAL APPEAL 60457/97 GROVE J JAMES J KIRBY J Monday 10 May 1999 REGINA v LJUBE VELEVSKI JUDGMENT 117 JAMES J: I have had the advantage of reading in draft the judgments of Grove J and Kirby J. I agree with Grove J, as does Kirby J, that grounds of appeal 2 - 5 inclusive should be rejected, for the reasons given by Grove J. I also agree with Grove J, generally for the reasons given by his Honour, that the sixth ground of appeal (in which the first ground of appeal can be subsumed) should be rejected. However, as Kirby J is of the contrary opinion, I consider that I should myself state, fairly succinctly, some of the principal matters which have led me to my conclusion. 118 The Crown case at the trial fell into two parts:- (1) The circumstantial case. (2) The medical case. 119 As to the circumstantial case, the jury could, in my opinion, have been satisfied that all of the following circumstances (inter alia) had been established. 120 (1) The appellant was not, as he alleged, in Zaklina's bedroom at all times between about 1 o'clock in the afternoon of Sunday 19 June and about 6 o'clock in the morning of Monday 20 June but, on the contrary, was at least for part of this period elsewhere in the house and hence the appellant did not have an alibi and did have an opportunity to murder his wife and children. 121 The appellant gave evidence in his evidence in chief at the trial that he was in Zaklina's bedroom from about 1 pm on Sunday 19 June to about 6 am on Monday 20 June. The appellant gave evidence in cross-examination that he never left Zaklina's bedroom to get anything to eat or drink or to go to the toilet. It is true that the appellant sometimes did not assert that he had been asleep for all the time he had spent in Zaklina's bedroom. However, his evidence was predominantly to the effect that he had spent all of the period mentioned in Zaklina's bedroom, at least much of it asleep. 122 The appellant's father, Petre Velevski, gave evidence in his evidence in chief that the appellant was in Zaklina's bedroom during the same period, that is from 1 pm on 19 June to 6 am on 20 June. 123 This evidence by the appellant and his father, if the jury considered that it was true or might reasonably possibly be true, would have provided the appellant with an alibi. Dr Bradhurst expressed the opinion, which was not challenged, that the victims had died at some time between 9 pm on 19 June and 5 am on 20 June. 124 Kirby J disputes that the evidence of the appellant and his father can properly be described as evidence of alibi. It does not seem to me to really matter what label is attached to the evidence. However, in my view, the evidence can properly be described as evidence of alibi. The evidence, if accepted, would have established that the appellant was elsewhere than in the matrimonial bedroom at the time when the appellant's wife and children died, even if he was still somewhere in the same house. 125 In my opinion, it was well open to the jury to conclude that the appellant's evidence was not true and that there was no reasonable possibility that it was true. (a) It was inherently unlikely that the appellant would have spent seventeen hours in one room, without leaving it, even to get a drink or get something to eat or go to the toilet. (b) The appellant's usual sleeping pattern was to sleep for seven hours. (c) The appellant had never previously slept for seventeen hours, even after working triple shifts. (d) The appellant had no idea why he had slept so long on this occasion. (e) The appellant had had his usual quota of sleep on the previous night and had got up only at about 8.30 on the Sunday morning. He had gone to bed at about 1 o'clock on the Sunday morning. (f) The appellant told police that after sleeping in Zaklina's bed all he had done to the bed was to fold back the top cover, yet photographs of the bed taken by the police were inconsistent with an adult having spent many hours sleeping in the bed. (g) Dr King, a neurologist, expressed the opinion that it was very unlikely that the appellant would have fallen asleep and have remained asleep for such a lengthy period, particularly as he had got up from his previous night's sleep only about five hours before 1 pm on 19 June. (h) When interviewed by Detective McGrath on 20 June, the appellant said "I saw her (Snezana) packing the lunch (for Zaklina)" for school on Monday 20 June, which, according to Petre Velevski's evidence, had happened on the evening of Sunday 19 June. 126 In my opinion, it was well open to the jury to conclude that Petre Velevski's evidence was not true and that there was no reasonable possibility that it was true. His evidence was quite contrary to what he had said in a statement given to the police on 20 June 1994 in a passage which was read aloud to him during an electronically recorded interview on 4 July 1994, that on the Sunday evening he had had dinner with his son, the appellant, at about 8 o'clock. Having read Petre Velevski's cross-examination, I would not accept, nor do I consider that a jury would have accepted, that what he said to the police on 20 June 1994 was the result of confusion on his part. 127 (2) The appellant's assertion that he was in Zaklina's bedroom between 1 pm on 19 June and 6 am on 20 June was a lie told in consciousness of guilt. The trial judge left this alleged lie to the jury, as being capable of being a lie told in consciousness of guilt. In my opinion, it was well open to the jury to be satisfied that the appellant's evidence about being in Zaklina's bedroom was untrue, that it was a deliberate lie, that it related to a material matter and that it was told out of consciousness of guilt and a fear that if the truth emerged it would implicate him in the deaths of the victims. Whether or not he was asleep for all of the time is less important than the assertion that he was continuously in a room in the house, other than the room in which the bodies were found. 128 (3) At the time the appellant got up on the morning of 20 June and knocked on the bedroom door, he believed that Snezana was in the bedroom. The appellant gave evidence that he did not at that time think she might not be there. The appellant's stated reason for asking his parents to leave the house on the morning of 20 June was "so I would remain on my own with her to find out what was the matter". It was highly improbable that Snezana would be anywhere else than in the bedroom. Snezana was a non-driver, who had the care of three month old twins and a six year old daughter. 129 The significance of the appellant's belief that Snezana was in the bedroom is that the jury could consider that the appellant's conduct (or lack of conduct) in not continuing to knock on the door, in not calling out, in not attempting to look under the door (as the police later did) or in not attempting by some means, with or without the assistance of others, to obtain access to the room, was inexplicable, except on the basis that the appellant already knew what had happened to Snezana and the children in the bedroom. 130 (4) In the early morning of 20 June 1994 the appellant caused his parents to leave the house, hurriedly and without any prior warning to them. 131 The appellant's parents had migrated to Australia in July 1989 and had subsequently continuously lived with the appellant and Snezana, firstly in their house at Cringilla and then in their house at Berkeley, except that on one occasion at Cringilla the parents had left voluntarily for a short time. 132 The parents were asked to leave at about 6 o'clock in the morning. It was winter and very dark. The appellant's mother was old and unwell and had to be woken. The explanation given by the appellant was that, if he took his parents away from the house, his wife might speak to him. 133 In my opinion, the jury would have been warranted in reasoning that the precipitate ejection of the parents from the home at such an early hour, was not to be explained on the basis suggested by the appellant (particularly having regard to his later conduct) but could only be explained on the basis that there was some extraordinary reason known to the appellant for getting his parents out of the house. I do not agree that this conduct of the appellant cannot be regarded as incriminatory, because it occurred after, and not before, the deaths. 134 (5) After the appellant returned to his home, after taking his parents to his sister's house, and notwithstanding his evidence that his purpose in taking his parents to his sister's house was to help him communicate with Snezana, the appellant made no attempt to communicate with her or even to check whether she was still in the bedroom. The appellant did not attempt to knock on the door of the bedroom, the appellant did not try to open the door, the appellant did not try to look under the door and the appellant had "no idea" whether the door was still locked. 135 In my opinion, it was open to the jury to infer that the lack of any attempt on the appellant's part to check whether Snezana was still in the bedroom was explicable only on the basis that the appellant knew what had happened to Snezana in the bedroom. 136 (6) The appellant, notwithstanding his denials, in fact knew how to open the bedroom door, even if it was locked. 137 It is true that the appellant gave evidence that he did not know how to open the bedroom door, if it was locked, without actually breaking down the door. He said, "nobody told me how they (the doors) were opened". 138 Evidence about the locks to the rooms in the house was given by Mr Zizic, the builder of the house, and Ms Arundell, a locksmith. Mr Zizic gave evidence that he explained how the locks worked to Snezana. Ms Arundell gave evidence that she inspected the locks on 27 June 1994. The lock to the main bedroom had been destroyed (by the police when they forced entry on 20 June). All the locks in the bedrooms were the same. Each bedroom could be locked from the inside. However, there was a "pretty obvious" slot in the front of the door and the door could be unlocked from the outside by inserting "anything", such as a coin or a paddle pop stick, in the slot. 139 The Crown sought at the trial to rely on the appellant's evidence that he did not know how to open a locked bedroom door from the outside, as being a lie told in consciousness of guilt. The trial judge declined to leave this matter to the jury as a lie told in consciousness of guilt, saying "that may well have been true. There is no direct evidence at any rate that anyone told him how to open the door from the outside by putting a screw driver or paddle pop stick in". 140 Notwithstanding what the trial judge said, I consider it was open to the jury to infer that it was not true that the appellant did not know how to open a door, if it was locked. The appellant had lived in the house for more than eighteen months. All the internal locks in the house were similar and the locking mechanism was simple and easy to operate, as was demonstrated to the court on the hearing of the appeal. There was evidence from Petre Velevski that on one occasion six year old Zaklina had opened a locked bedroom door from the outside. The appellant admitted in cross-examination that Petre Velevski had said something to him about Zaklina opening and locking a door. If the jury did infer that the appellant knew how to open a locked bedroom door, that would be a crucial matter adverse to him. 141 (7) On 20 June the appellant falsely told a number of persons including Ratka Nadjovski, Mrs Jorge or Mr Jorge that he had been told by the social worker Mrs Nikolovska that he could not try to find his wife for twenty-four hours, that he should wait twenty-four hours before doing anything, that he must wait for twenty-four hours before calling the police. 142 Mrs Nikolovska, a social worker from the Macedonian Welfare Association, gave evidence that in her conversation with the appellant on the morning of 20 June she had merely suggested that if the appellant had not heard from his wife and children by about 3 o'clock in the afternoon he should contact the police. 143 (8) The appellant went to Zaklina's school and enquired of her teacher Ms Dimitrovski whether Zaklina was at school; yet he handed to Ms Dimitrovski two notes, saying that he had found the notes in Zaklina's school bag. Ms Dimitrovski thought it was "odd". It was open to the jury to conclude that the appellant's enquiry of Ms Dimitrovski was not a genuine enquiry, when he knew that Zaklina's school bag was at home. 144 (9) The appellant did not attempt to ascertain whether his wife was at her parents' place. The appellant's sister Ratka suggested to the appellant that Snezana might have gone to her parents' place. The social worker Mrs Nikolovska made a similar suggestion. 145 The reason the appellant gave for not making an enquiry of Snezana's parents was that he did not have Snezana's parents' telephone number. The jury would have been entitled to regard this as a specious excuse. The appellant had been to Snezana's parents' place the previous morning in order to pick up Zaklina and could easily have driven to the parents' place. If Snezana was not at the home at Berkeley, the next most likely place for her to be would be her parents' house. The jury were entitled to conclude that the appellant was not making any genuine attempt to find his wife and that he was not making any genuine attempt because he already knew where his wife was. 146 As to the medical case, the pathologists' evidence was of course voluminous and I propose to refer only to some aspects of the evidence of each of the pathologists. Kirby J is of the opinion that some of the evidence given by the pathologists ought not to have been admitted. However, it was not objected to at the trial and it was not contended on the hearing of the appeal that it should not have been admitted. It seems to me that it was almost inevitable in the present case that the evidence given by each pathologist should include a statement by him of the factors (if any) which in his opinion tended to show that Snezana's death was homicidal and the factors (if any) which in his opinion tended to show that Snezana's death was suicidal and that the conclusion which the pathologist favoured as to whether the death was homicidal or suicidal would necessarily be clearly implicit, even if not expressly stated, in his evidence. Under s 80 of the Evidence Act evidence of opinion is not inadmissible only because it is about a fact in issue or an ultimate issue in the proceeding. It also seems to me almost inevitable that the pathologist would include in his statement of the factors tending to support one conclusion rather than the other, matters which he had observed and which in his opinion tended to support one conclusion rather than the other, even if such factors would have been observable and their significance might have been capable of being appreciated by a person without special training. It would in any event be a very difficult task to attempt to disentangle from the evidence the pathologists gave which was undoubtedly admissible, such parts of the evidence they gave as ought not to have been admitted, even assuming, which I do not decide, that there were parts of their evidence which ought not to have been admitted. 147 Dr Bradhurst Dr Bradhurst did have the advantages of having observed the bodies in situ and of having conducted the post-mortem examination of the bodies. He was accordingly in a better position than the other pathologists (except, to some extent, Dr Cooke), who had to rely on photographs in order to make observations about the bodies. For example, Dr Bradhurst's evidence that he found no evidence of bruising to the lips or gums of Snezana should, I think, be given greater weight than the evidence of the other pathologists who were interpreting what they believed they saw in photographs, as being evidence of bruising. However, much of the evidence given by the various pathologists was not evidence of what they observed, either from direct inspection of the bodies or from the photographs of the bodies, but evidence of inferences by them, based on what it was common ground could be observed, about what had probably happened in the bedroom of the house and the jury could take the view that Dr Bradhurst was not in any better position, or not in any significantly better position, to draw such inferences. 148 There were two deep cuts to the cervical spine of Snezana, one penetrating about 5 millimetres into disc C5-6 and the other penetrating about 20 millimetres into disc C4-5. There was no way, simply by looking at the wounds, of determining which cut was inflicted first. 149 Dr Bradhurst was of the opinion that Snezana's cut throat had been self-inflicted. The factors relied on by Dr Bradhurst were:- (a) A quiet scene (b) No evidence of a struggle (c) The presence of superficial cuts along the edges of the main wounds (d) The absence of any defence type injury. 150 However, Dr Bradhurst conceded that, if Snezana had been taken unawares or while asleep, he would not have expected anything other than a quiet scene and would not have expected evidence of a struggle or defence type injuries. 151 It is important to note that Dr Bradhurst first formed his opinion that Snezana's cut throat had been self-inflicted, at a time when, although he was aware of the presence of blood on the back upper part of her nightdress and jacket, he was not aware of the grouping of that blood. 152 The analyst Ms Beilby gave evidence that testing of the back of Snezana's nightdress showed five areas of blood coming from Snezana, two areas of blood coming from Zaklina, four areas coming from the twins and three areas which were mixtures of blood types. The testing of the back of the bed jacket showed four areas of blood coming from Snezana, three areas of blood coming from Zaklina, three areas of blood coming from the twins and seven areas which were mixtures. Testing of the fronts of the nightdress and the jacket showed that almost all the blood tested came from Snezana. 153 If Snezana had killed the children, assembled the children's bodies and then committed suicide by cutting her own throat, thus falling forward prone on the bodies of the children, there would be no explanation for the presence of either Snezana's blood or the children's blood on the back of Snezana's nightdress and jacket. 154 Dr Bradhurst offered as an explanation for Snezana's blood being on the back of her clothing: "If she did commit suicide - one scenario I suggest for that would be that… in the process of committing her death she was at first lying with her back on the floor and she had had some attempts at cutting her throat and with bleeding going on the floor… she is taking some time to die… she hadn't managed to kill herself at first, although there is considerable bleeding having occurred and also some spray from her cut vessel going on the furniture as it was seen and also her coughing blood from her airways and that projected cough blood going there but, more important, more blood going on the floor from the cut vessels, but then after a period of time finding that she still hadn't died, (she) places the children in the position they were found and doing the final cuts on top of them in the way that she was found". 155 Dr Bradhurst offered as an explanation for the children's blood being on the back of Snezana's clothing:- "If her cut throat was self-inflicted after dealing with the children it is possible the blood came from her holding the child and the babies to her shoulder after their throats had been cut and/or during the act". 156 It was clear from the blood splatter, including blood from Snezana, that the bed in the bedroom had been moved by someone after Snezana had been wounded in the neck. On Dr Bradhurst's explanation, the bed would have to have been moved by Snezana herself. I do not find the suggestion that the bed might have been moved by one of the ambulance officers at all plausible. 157 It seems to me that it was open to the jury to regard both of Dr Bradhurst's attempted explanations as being far fetched and highly improbable and this is the view I myself have formed. It was open to the jury to conclude that Snezana was killed first, that she lay prone on the floor bleeding profusely and that the children were killed over her body, thus explaining the presence of the children's blood on the back of her clothing. 158 Dr Cooke Dr Cooke viewed the bodies on 25 June 1994. 159 Although Dr Cooke considered that the medical evidence alone was not conclusive he said in his evidence that he had identified the following as "areas of concern". (i) Blood on the back of Snezana's matinee jacket. This would not be consistent with Snezana having fallen forward after cutting her own throat. (ii) Blood on the buttock regions of Snezana's nightdress. The presence of this blood would not be consistent with Snezana having committed suicide and some of the blood stains had angulated profiles, which might represent the wiping of an instrument. (iii) Blood stains on Snezana's left calf, which could have been caused by fingers. (iv) As the bodies were found, the head and neck of Snezana overlay Zaklina and the twins and one would have expected an extensive flow of blood from Snezana over Zaklina and the twins; yet there was little blood staining on Zaklina's red vest or the backs of the babies' sleeping bags. (v) The distribution of blood spray on the back wall of the bedroom and the furniture showed that Snezana had suffered a cut throat injury when her neck was very close to the floor, closer to the floor than the position of her neck when her body was found. (vi) Two buttons were missing from Snezana's jacket, each with residual threads, and although a third button was intact, there was tearing of the button hole. These factors might indicate a struggle. (vii) The observed cut to the thenar eminence near the right thumb could be a defence injury. (viii) Several necklaces were still around Snezana's neck. "Suicidal injury by cutting is typically associated with baring, that is exposure of the part". (ix) There were characteristics of the cut throat injury to Snezana's neck which did not usually occur in cases of suicide. The cuts were oblique and not transverse, the cuts were low and not high on Snezana's neck, and the cut penetrating 20 millimetres into the spine was very deep. The superficial cuts to Snezana's neck could indicate suicide but similar cuts could be seen around the neck wound of Zaklina, who clearly had not committed suicide. (x) The petechial haemorrhages around Snezana's eyes and the crescent shaped scratch to the front of Snezana's neck could indicate compression of her neck, that is that she had been strangled. Dr Cooke doubted that the haemorrhages could have occurred after death, because, if they had, he would have expected to see intense lividity, whereas there was only limited lividity, and also a mixture of fine and coarse haemorrhages, whereas there were not any coarse haemorrhages. 160 Dr Collins Dr Collins had "considerable doubt" about the self-infliction theory. 161 In his first report Dr Collins referred to:- (i) The totality and variety of the wounds to Snezana's neck. (ii) The abrasion to the front of Snezana's neck which might have been caused by a finger nail of a hand around her neck. (iii) The petechial haemorrhages, which were more likely to have been asphyxial than post mortem gravitational. If the haemorrhages were asphyxial, they would have occurred before Snezana's throat was cut and the circulation of her blood stopped. (iv) If there was bruising to the right scalp and the lips and gums, this would not be common in suicides. I do not consider that this is a strong point, if respect is to be paid (as I have suggested) to Dr Bradhurst's advantage in observing the condition of Snezana's body. (v) The cut to the thenar eminence on the right hand could be a defensive wound. It was not likely that a right-handed person, such as Snezana, would cut her own right hand. (vi) The scene appeared quiet and undisturbed but this might be due to a re-arranging of the scene before the police attended. 162 In his second report Dr Collins expressed the opinion that in all probability Snezana's wounds were not self-inflicted. The factors, which were to be taken in conjunction with each other were:- A. The asphyxial type petechial haemorrhages. B. The bruising to Snezana's face, which Dr Collins conceded was not proven C. The bruise to the scalp. D. The abrasion to the front of the neck E. The irregular abrasions above the right margin of the deep neck wound F. The involvement of the spinal cord, i.e. the depth of one of the neck wounds G. The injury to the thenar eminence H. The damage to Snezana's necklaces, which were still around her neck I. The distribution of Snezana's blood on the floor, wall and furniture, being inconsistent with the position in which her body was found J. The absence of blood from the children on the cuffs of Snezana's nightdress K. The small amount of blood on the knife, even though Snezana's hands were heavily blood stained L. The raised position of Zaklina's left leg, which was not supported by Snezana's body and which should be attributed to rigor mortis and which indicated that Zaklina's body had been moved, after rigor mortis had developed, some hours after her death. 163 Dr Bradhurst's "scenario" of how Snezana could have got her own blood on the back of her clothing was put to Dr Collins and Dr Collins said that "the entire scenario appears highly improbable to me". 164 Dr Oettle Dr Oettle "thought it was homicidal, I didn't think it was suicidal". In his evidence Dr Oettle set out the factors he relied on and then recapitulated them. Among the factors were:- (i) A lack of evidence of any spray of blood from Snezana over the bodies of the children (even though, if Snezana had committed suicide, she must have committed suicide after she had killed the children and their bodies were lying on the floor and her body was found lying on top of the bodies of the children). (ii) Snezana's clothes showed signs that her body had been moved after she was dead - her nightdress was displaced at the front. (iii) Snezana's left leg had blood smears, which were consistent with having been caused by a hand. (iv) There was damage to Snezana's necklaces. (v) Snezana's hair clip was displaced backwards (which was consistent with someone having taken hold of her by the hair). (vi) The bruising on the lips and face. (vii) The abrasion to the left-side of the forehead. (viii) Bruising to the right parietal region. (ix) The abrasion at the front of the neck (x) The petechial haemorrhages. I would not give weight to reasons (vi) and (viii), which depend on Dr Oettle's interpretation of photographs and which are not supported by Dr Bradhurst. 165 Dr Oettle added as a further factor the blood smears around the buttocks of Snezana's nightdress, which appeared to have been made by an object such as a knife and which were most unlikely to have been made by Snezana. Having regard to the amount of blood on Snezana's hands, it was remarkable how little blood there was on the handle of the knife. 166 Dr Oettle stated a number of opinions he had formed, including the following. The thesis that Snezana had cut the throats of her children and then cut her own throat and had then fallen on the stacked bodies of her children, was contradicted by the presence of her own blood and her children's blood on the back of Snezana's clothes and the absence, apart from at one site only, of the children's blood on the front of Snezana's clothes. 167 The distribution of blood spray on the bed, wall, heater and carpet was consistent with Snezana having been lying face down on the bed, with her head and shoulders over the side of the bed and near the floor, and with her head extended by her hair being pulled from behind, when her throat was cut. 168 The position of Zaklina's left leg (and the position of blood on Zaklina and Zaklina's clothing) showed that rigor mortis had occurred when Zaklina was lying in a different position from that in which she was found. 169 Snezana's neck injury stretching from some distance below the left ear almost up to the level of the right ear and being deeper on the right hand side than on the left hand side differed from the typical neck injury self-inflicted by a right handed person, where the injury starts high on the left hand side of the neck, becomes deep and then becomes more shallow and ends more distal, that is further away from the top of the head. 170 Dr Oettle replied "yes" to the following question from the trial judge:- "In other words, are you saying that, having lost that amount of blood, at the spot shown in the photographs near the cabinet, irrespective of whether she had at that stage received the cut that cut into the spinal column, because of the loss of blood she would not have been able to move to the spot where she was found?" 171 As to Dr Bradhurst's explanation of how Snezana might have cut the children's throats, so as to get their blood down the back of her clothes and not the front, Dr Oettle said:- "I think it would be very difficult… because you are only supporting a child with one hand. You have got the knife against your own throat because of the proximity of the two and you would be cutting against the strength of your hand and were you able to do such a cut, immediately that happened the child's head would have flipped backwards because it went through the cervical spine and there would have been a spray straight over her face and over the side of her. 172 Professor Mason Professor Mason concluded that on the balance of probabilities the cutting of Snezana's throat was homicidal. 173 Professor Mason relied particularly on:- (i) The general similarity of the wounds on all four victims. (ii) The "great ferocity" of Snezana's wounds. (iii) The superficial cuts, which might otherwise have suggested suicide, mostly went into the deeper wounds, rather than being independent injuries, and "we therefore don't know whether they are all superficial or, in actual fact, deepening as they go into the wound". 174 Professor Mason stated further opinions which he had formed. The distribution of the blood splatter on the walls and furniture showed that "Snezana with near certainty (was) on the floor where the bed now stands and in front of the locker when her throat was cut". Accordingly "both she and the bed must have been moved later". "The bed must have been replaced (moved) after her throat was cut and this necessitates the presence of another party". 175 Zaklina's raised leg was due to persistent rigor mortis and showed that her body had been moved several hours after her death. 176 The cut to Snezana's thenar eminence could be a defence wound. 177 The petechial haemorrhages were not due to lividity; the rupture of small blood vessels can occur, only if there is blood pressure and hence the haemorrhages had occurred before Snezana died. 178 The presence of blood on Snezana's face, as shown in photographs, was consistent with her at some stage having lain face down in blood. 179 If a child's neck was cut so as to sever her spinal cord, while Snezana was holding the child, one would have expected the child's head to fall backwards over its own back (and not forwards over Snezana's back). 180 Dr Zillman Dr Zillman had very little experience as a pathologist compared with the other expert witnesses and it is clear from many parts of the transcript that he did not fare well in cross-examination. 181 The mere fact that in the present case there was conflicting expert evidence did not mean that any verdict of guilty would be unsafe. "It is the function of the jury to consider which of two bodies of conflicting evidence, technical or otherwise, they will accept" (Chamberlain v The Queen (1983-84) 153 CLR 521 at 558 per Gibbs CJ and Mason J). Criticism has been made of the conduct of the trial by the Crown, in that no evidence was called by the Crown from some other pathologists, who Dr Bradhurst said concurred in his opinion. However, the concurrence of these other pathologists may have been formed as casually, as Dr Oettle said his initial concurrence with Dr Bradhurst's opinion had been formed. 182 There was circumstantial evidence rendering it improbable that Snezana had killed the children or herself. (1) Dr Wilcox, a psychiatrist called by the defence, agreed that some of Snezana's conduct on the Sunday morning, as proved by the appellant's own evidence, "doesn't sound" indicative of a person having any problems with her children or her husband. (2) Dr Walton, Snezana's obstetrician, gave evidence that on 29 April 1994, when Snezana came to see him for a post-natal visit, she was "very chirpy" and pleased about having carried the twins for thirty-six weeks before delivery. (3) According to Petre Velevski's evidence, at about 8.30 on the evening of Sunday 19 June Snezana was preparing a meal for the babies and was preparing a meal for Zaklina for school the following day. The evidence, such as it was, that Snezana, as distinct from other members of the family, had psychiatric problems was very thin. 183 In my opinion, applying the tests stated in M v The Queen (1994) 181 CLR 487 the verdicts of guilty should not be set aside on the grounds that they are unreasonable or cannot be supported having regard to the evidence or that there has been a miscarriage of justice. IN THE COURT OF CRIMINAL APPEAL 60457/97 GROVE J JAMES J DAVID KIRBY J Monday 10 May 1999 REGINA v Ljube VELEVSKI JUDGMENT 184 KIRBY J: I have had the advantage of reading the judgment of Grove J. I agree with the orders proposed in respect of Grounds 1 to 5. I have, however, come to a different view in respect of Ground 6. Ground 6 asserts that the verdict was unsafe and unsatisfactory. The Test to be Applied 185 The phrase "unsafe and unsatisfactory" is, of course, a reference to section 6(1) of the Criminal Appeal Act 1912 (NSW). That section provides that the Court of Criminal Appeal must allow an appeal against conviction if the Court is: "of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice" provided that the Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. 186 The test is whether the Court believes that, upon the whole of the evidence, it was "open to the jury" to be satisfied beyond reasonable doubt that the accused was guilty (Gipp v The Queen (1998) 72 ALJR 1012, per McHugh and Hayne JJ at 1021). Gaudron J, in the same case, said this: (at 1016) "The expression 'unsafe and unsatisfactory' has no very precise meaning. It is commonly used to indicate that, although there was evidence to sustain a verdict of guilty, the jury ought, nonetheless, have entertained a reasonable doubt as to guilt." (references omitted) 187 Most recently, in Fleming v The Queen ((1998) 158 ALR 379), the Court drew attention to the judgment of Hunt CJ at CL in R v Kurtic (1996) 85 A Crim R 57, where his Honour said this: (at 60) "In such a case, it is the duty of this Court - whether the appeal is from a jury trial or a judge alone trial - to make its own independent assessment of both the sufficiency and the quality of the evidence, in order to see whether the jury (or judge trying the case alone) ought to have a reasonable doubt or whether this Court itself experiences such a doubt or is persuaded that there is a significant possibility that an innocent person has been convicted." Matters Favourable to the Appellant 188 Here, there were a number of matters which pointed to the innocence of Mr Velevski. These were: · First, the absence of motive. · Second, the absence of forensic evidence connecting the appellant with the crime, in circumstances where you would have expected such evidence. · Third, the police interviews. · Fourth, certain remarks by Mr Velevski immediately after the deaths. · Fifth, the intelligence gathered through listening devices, and telephone interceptions. · Sixth, evidence which may suggest Snezana was psychiatrically disturbed. 189 I will deal with each matter in turn. The Absence of Motive 190 First, the evidence was that Mr Velevski was a loving father. He had no history of violence. The police, naturally, searched for a motive. None was uncovered. Det Sgt Whyte gave the following evidence: (T 1142/3) "Q. That you went to lots of people and asked questions about whether Mr Velevski had ever demonstrated that he was a violent person? A. We certainly went to lots of people and we certainly took lots of statements. That would have been an issue that was looked at, yes. Q. And you took many statements from many people attempting to determine the nature of the relationship between this man and his wife and those three little girls? A. Yes, that's right. Q. And every time you approached someone what you were told that Mr Velevski was both a good husband and a good father? A. I can't think of any, any statements that were otherwise than that, no." Motive is, of course, not essential ( Plomp v The Queen (1963/64) 110 CLR 234). Its absence, nonetheless, should give one pause. The Absence of Forensic Evidence 191 Secondly, there was no forensic evidence to connect Mr Velevski with the crime. Yet, the circumstances were such that you would have expected such evidence. Four persons had died by having their throats cut. The bedroom, between the cot and the bed, was awash with blood. You would have expected that, if Mr Velevski had carried out the murders, he would have been sprayed with blood. You would have expected, therefore, that he would have trailed blood from the place of assassination to other parts of the room, and beyond. You would have expected blood outside the room, as he cleaned himself and his clothes. 192 Yet, there was no such evidence. Mr Raymond, an expert in blood stain patterns, said this: (T 581/582) "A. The first impression of the scene was the level of containment of the bloodstained area and the fact that almost all of the staining was below the height of the bed. It wasn't spread over very big areas. There was - there were no obvious signs to indicate significant blood smearing on surfaces or blood trails which is generally consistent with a major conflict or where there has been a lot of movement by people who are already bloodstained or people who have contacted the bloodstained surfaces. Q. In relation to your examination of what you have described as the white three drawer bedside unit, tell us what you observed there? A. There was copious blood staining to the front of the unit predominantly on the bottom drawer and the recessed portion underneath the drawer. The patterns were primarily consistent with a large volume of blood having been projected on to the drawer and the recess below but also on to the carpet area underneath the drawer and on the carpet area in front of it. There was also projected blood down the side of the three drawer unit. Now, projected blood is typically what we get when there is a large volume - we are talking about a number of mls of blood which project, such as you get with an arterial gush or somebody who had blood projected from the mouth if they had a lot of blood in the mouth or projected from the neck area with severe wounding. The blood gave rise to what we call multi directional patterns under the drawer. That means there was enough blood to leave a layer of blood on the carpet the blood that was then being projected forward struck the layer of blood and left a pattern which tells us in fact the blood has struck another layer of blood. The pattern is very typical and very easily identified so it tells you there is a lot of blood there." 193 Dr Bradhurst, the pathologist who performed the post mortem, said this: (T 365) "Q. Within your experience having regard to the amount of blood, if the wounds had of been inflicted by some other person you would have thought it very unlikely for them not to have some blood on their body? A. Yes, I would have expected blood on their body. Q. And I think you would have expected not only … blood on their body but blood on their clothing? A. Yes." 194 He added: (T 365) "Q. And of course what you observed indicated that, whatever occurred, occurred within the - that confined space without any trail or footprints of blood leaving that confined area? A. Yes, that is so. Q. There was not the slightest evidence of any trail of blood from the area or any foot prints of blood found? A. That is so." 195 The confined nature of the bloodstains is the more startling, given the nature of the Crown case. If Mr Velevski were the murderer, he had to subdue his wife, and do so without disturbing their six year old daughter, Zaklina, or the twins (lest the commotion draw attention), before later murdering the children. One must further assume (as put to various witnesses by the Crown) that Mr Velevski came upon his wife in darkness whilst she was sleeping. Dr Bradhurst said this: (T 384) "Q. Would it be difficult to perform these killings in this confined area and have the ability to confine the blood to this limited area in the absence of light, pitch black? A. Certainly it would be very - it would be difficult." 196 The Crown case was that Mr Velevski had forced his wife off the bed, and near the floor, between the bed and the cot, and there cut her throat. He later cut the children's throats with his wife lying on the floor, on her stomach, so that the blood from Zaklina and the twins was deposited on her back. For reasons which are obscure, he cut his wife's throat a second time, depositing yet more blood, superimposed upon blood from the first cut. 197 Having done that, Mr Velevski then rearranged the bodies. The twins were positioned at the bottom of the stack. Zaklina was placed in the middle, and Snezana, his wife, on the top. Dr Zillman, called on behalf of the defence, made the following comment: (T 1295) "A. … The mechanism of the injuries sustained by the four individuals in this case are such that there have been repetitive movements of a sharp instrument across the front of each neck. That implies that after one cut, which would have caused bleeding, a hand holding a sharp instrument has had to go past that bleeding area to repeat the cut. It is not possible to know how many times this occurred but each time it occurred, there is the chance that either arterial blood spurts or oozing blood from jugular veins or coughing blood, if that is the case, would foul either the skin or the apparel of at least the right forearm of the assailant; and this would be, in my opinion, sufficient blood staining for blood to be dripping from those areas. Now, if the knife was being held firmly in the grasp, it is possible for blood to get on the blade but not as much as you might think because most of the bleeding occurs after the cut has passed and blood rolls off the blade quickly; and if blood is going to get on a hand, it doesn't necessarily trickle down into the fingers and on to the handle of the knife. So, in my opinion, it would be impossible to carry out these repetitive throat-cutting exercises without getting a large amount of blood on at least the right hand and right forearm and that would be the minimum, the bare minimum. If there was spurting of blood while bodies were being rearranged; if blood was oozing out while bodies were being moved; if the person was moving into a pool of blood on the floor and out of it again, one would expect blood staining on those parts of the assailant that contacted the blood stained area. So, in my opinion, it is impossible that the assailant who is supposed to have carried (out) four cut-throat killings in this case could possibly have gone away from the scene without significant blood staining, and by that I mean blood staining sufficient to produce dripping of blood and that dripping should have been visible. It will have fallen on carpet or furniture. Blood on hands should have appeared on door knobs, those sorts of things. Then it raises the problem that this blood has to be removed and the removal of blood leaves evidence itself and my understanding of this case is that there has been no evidence that blood has been removed from anywhere." 198 Dr Zillman added: (T 1295/6) "Q. Would the blood that gets on the attacker during the course of the killing be increased by lifting the bodies and moving the bodies around? A. Yes. Movement of the bodies would facilitate draining of the blood from the open jugular veins, for example. Q. And would you expect blood to get on to the nether regions, the legs, the trousers, the shoes? A. Yes, I would expect that. Q. And to be walked around the house? A. I would expect that. Q. Into carpet? A. Yes." 199 Det Sgt Whyte, who was in charge of the investigation, described aspects of that investigation. There was, as you would expect, a close examination of Mr Velevski's clothing, including the clothing he was wearing on the day (T 142). There were no traces of blood. Carpet, furniture, even the drainage system, including the V bends in the plumbing, were removed for inspection. No blood was found (T 143/155). The police returned to the premises with a polylight. A polylight is a high intensity light using ultraviolet and infrared rays to detect minute traces of blood, invisible to the naked eye. Det Sgt Doherty, attached to the Forensic Services Group, described the result: (T 162) "Q. As a result of you using this particular piece of equipment you looked over all the areas and are unable to locate other stainings other than what you have already given evidence about seeing in the main bedroom area? A. That is correct. Q. Also whilst at the premises you carried out an examination of the light switches in the main bedroom? A. Yes. Q. That also includes some light switches located on the bed head? A. Yes. Q. And in relation to your examination of those light switches you were unable to find any traces of blood? A. That is correct." 200 The steering wheel from Mr Velevski's car was removed, and tested. There were no traces of blood. The Police Interrogation 201 Thirdly, the police sought from Mr Velevski a blood sample, and a hair sample. He provided both. He was then interrogated upon the following occasions: 21 June 1994 12.47 am - 3.06 am 2 hrs 19 mins 5 July 1994 2.54 pm - 10.15 pm 7 hrs 21mins 6 July 1994 4.42 pm - 10.43 pm 6 hrs 1 min 18 July 1994 5.21 pm - 10.32 pm 5 hrs 11 mins 20 July 1994 4.05 pm - 7.30 pm 3 hrs 25 mins 6 January 1995 16 mins 202 The account he gave throughout was consistent. One line from that interrogation was judged capable by the trial Judge of amounting to a lie, signifying a consciousness of guilt (that being the suggestion by Mr Velevski that he spent 17 hours in his daughter's bedroom between 1.00 pm on 19 June 1994 and 6.00 am on 20 June 1994). Mr Velevski did not consult a solicitor throughout this process (T 1212). Remarks to a Neighbour 203 Fourthly, on the day itself (20 June 1994), after the bodies had been discovered, Mr Velevski spoke to a neighbour. His neighbour remembered the conversation as having included the following: (T 850) "Q. Did he say something else? A. He say like he didn't believe Snezana do that to the kids because she very deep cut." 204 This is an odd remark, if one assumes that Mr Velevski had carefully managed the scene to make it appear that his wife had murdered the children, and then committed suicide. The police interviewed the appellant the next day (21 June 1994). The interview included the following: "Q301. Well, well, your wife and your children, they've had - they've been - they died as a result of knife wounds to their throats. Can you think of anybody that would want to inflict those injuries on your wife and children? A. (SUSPECT) I dunno because … A. (INTPRTR) Even yesterday I never thought that my wife would do something like that to my children, we both loved our children." Listening Devices and Telephone Interceptions 205 Fifthly, listening devices were installed in the premises, and in Mr Velevski's car, during a period of three weeks, after Mr Velevski had returned to the premises with his parents. Nothing incriminatory was said. This is an aspect dealt with by Grove J (para 68). It enables one to refine the Crown's hypothesis. Nothing was said between father and son which suggested that Mr Velevski senior knew, or suspected, that his son had done anything wrong. Nothing was said which corroborated the suggestion made by the Crown that the appellant had tutored his father in what to say to the police. Nothing emerged which was inconsistent with the posture of innocence and ignorance which Mr Velevski has maintained throughout. Was Snezana Psychiatrically Disturbed? 206 Finally, there are, in my view, some indications that Snezana may have been psychiatrically disturbed. There is, at least, that possibility. There was some evidence, although limited, that Snezana's mother (Mrs Josifovska) had, at some point, received psychiatric treatment (T 1175, lines 20-22), and was on anti-depressant medication (T 731; T 1436). Snezana's brother, Mendo, when 23 years old in September 1990, had some form of breakdown. He saw his local doctor, Dr Rao. He was about to undergo a job interview (T 847). Dr Rao arranged for his admission to the Wollongong Hospital, Acute Care Unit. He was discharged on 30 October 1990. 207 The appellant made reference to this episode, and to information provided by his wife, when interviewed by the police. Det Cassar said this: (T 1189) "Q. What I am suggesting to you Mr Cassar is that on 22 June 1994, two days after the finding of Mrs Velevski and the bodies of the children, you were told by Mr Velevski that Mendo, the brother, had had a breakdown, had been taken to hospital in Wollongong, that he had a gun, and that his mother had found some bullets under his pillow. That is what he told you on 22 June is it not; paragraph 8? A. Yes that's correct." 208 Dr Wilcox, psychiatrist, gave evidence, having inspected the hospital notes relating to Mendo's admission (T 1428). He said this: (T 1428) "HIS HONOUR: Q. What you found possibly relevant to Mrs Velevski's condition. A. Right. What I found was that her brother was admitted at the age of 23 in 1990 to the Wollongong Hospital, the acute care unit, for the management of depression and while he was there he was reported to have purchased bullets and to have expressed suicide ideation. It was commented in the notes that the atmosphere between he and his parents was said to be claustrophobic and the parents were very involved. He reported that his parents had been strict on both he and his sister and he was described by Dr O'Brien as a socially isolated man with marked obsessional traits and fears of failure. There was mention that his mother had seen a hypnotherapist and psychiatrist due to anxiety and depression related to her daughter needing an operation on her ear." 209 The medical evidence relating to Snazana was spare. She had difficult pregnancies with both Zaklina and the twins. She suffered from acute vomiting, requiring admissions to hospital during the course of each pregnancy. She was under the care of Dr Walton, gynaecologist. A social worker, who saw Snezana while she was pregnant with Zaklina, wrote a report suggesting she was not communicating, and that there were difficulties establishing rapport (T 819). She suggested a psychiatric consultation, which was then undertaken by Dr Peter O'Brien, the psychiatric registrar. Dr Walton interpreted the hospital notes. He described Dr O'Brien as having been "reasonably happy although he said he would have wanted to see her later" (T 820). Dr Walton added that, for his part, he had no difficulty communicating with Snezana. 210 After the birth of the twins on 3 March 1994, Dr Walton saw Snezana on 29 April 1994 (approximately 7 weeks before her death on 20 June 1994). At that time he saw no signs of post natal depression. He said this: (T 815) "No, almost exactly the opposite. This girl was very jovial and chirpy, she was essentially skiting about how she was managing and how things had gone well during the pregnancy and after." 211 Dr Rao, the family doctor, saw Snezana on 6 May 1994. He spent twenty to thirty minutes with her. She appeared extremely happy (T 840). 212 However, it would be a mistake to infer, upon the basis of these two consultations, that there was nothing wrong with Snezana at the time of her death. Dr Walton (gynaecologist), and Dr Wilcox (psychiatrist), each acknowledged that the onset of post-natal depression may be delayed. Dr Wilcox said this: (T 1434) "Q. Dr Walton expressed the view that although he observed no signs himself of post-natal depression, he did say that post-natal depression can arise three or four months after the birth of children. Would you agree with that view? A. Yes, it can occur at varying times and can occur out of the blue too." 213 On any view, there was significant domestic turmoil immediately before Snezana died. In the nature of things, those who were in a position to observe Snezana were her husband (the appellant), and his parents. 214 The workload upon Snezana had obviously increased after the birth of the twins. The appellant gave evidence that Snezana found it difficult to look after his parents, the house, and the twins as well (T 1211). Snezana plainly had high standards in house cleaning. The house was, as Grove J remarks, clean to the point that it resembled a showroom. 215 The appellant asserted that, after the birth of the twins, Snezana would lock herself in the bedroom with increasing frequency (T 1211). She made statements which, in hindsight, are capable of being construed as hints that she may suicide. According to the appellant, she said the following: (T 1211) "A. There would be a change in her facial features and she would get very flushed, very red, and she would get irritable immediately, flare up, and she would lose control of her speech - in her speech and then she would start shouting and saying, 'I don't like any of you. I can't go to my parents any more. Wherever I go, I will go' - 'I will take the children with me' and that 'I will not be looking for a father there where I am going to go, a father for the children there where I am going to go.'" 216 Snezana said these words on Sunday 19 June 1994. The appellant, later in his evidence, elaborated. He said this: (T 1221) "A. First of all she said that she was going to leave home, that she didn't care, she didn't care at all who was going to stay and remain living in the house, and then on our question of 'Where are you going to go?' she said, 'It's not important where I am going to go', and she then used the words, 'I am not going to go to my mother and father any more, I'm not looking for a husband or father for my children, wherever I will go I will go and I will take the children with me.'" 217 The conversation between the appellant and Snezana continued: (T 1222) "A. I said, 'Why do you want to leave home?' Q. And what did she say? A. She said, 'It is not important for you to know.' I asked her, 'Where are you going to go?' She said, 'I am going to live in a flat, in some flat' - and she didn't say which one or where, she just said, 'in a flat'." 218 The appellant's account continued as follows: (T 1222) "Q. Well then did she go somewhere? A. For some time she sat in the television room, about ten to fifteen minutes, and she was crying by herself. We weren't bothering her during that time, not upsetting her. She was just crying. About 5 to 11 or 11 o'clock as she was going from the television room into the room where the twins were you could see her stomping with her feet, going stomping, very upset, a very upset condition, and then as she was going to go into the room she slammed the door forcefully. The whole house shook from that." 219 If this evidence were fabricated, designed to suggest that Snezana was contemplating suicide, you would not have expected the appellant to have included the reference by Snezana to moving to a flat. 220 Mr Petre Velevski, the appellant's father, gave evidence along similar lines. On Saturday 18 June 1994, according to Mr Velevski Snr, the following occurred: (T 955) "A. We were sitting on the verandah outside. She came and I could tell that she was not - she was not herself. Words she was saying were strange. And she said to me that I am not going to live in this house and I said 'Why don't you want to live in this house, it is a new house, everything has been well arranged', and she said to me that 'Wherever I go I will take the children with me.'" 221 Mr Velevski endeavoured to engage Snezana in conversation. She ignored his questions. The night before her death he thought she was not well. She appeared confused (T 753). 222 Dr Wilcox, psychiatrist, expressed the following opinion: (T 1432) "… It is my impression that like her brother she may have had obsessional traits in her personality as evidenced by how she kept her home in an immaculate condition and she was not satisfied until she had personally checked all the locks in the house. She may have also had high expectations of herself and this could have made it more difficult for her to accept that she was not coping. She did not like her family members to see her when she was upset and regularly withdrew to her bedroom until she felt in control again." 223 Dr Wilcox thought that Snezana may have developed a depressive illness. He said this: (T 1433) "She was certainly under more stress having to care for twins and elderly relatives and this level of stress in someone with a vulnerability to develop depression, being related to a family history, may have led to her becoming depressed. If she had developed depression she may have perceived that her situation was hopeless and could have possibly had feelings of guilt and may have experienced difficulty in seeing a future for herself." 224 Dealing with the day before her death, Dr Wilcox gave the following evidence: (T 1433) "After Mrs Velevski spoke to her mother on the day prior to her death she was very upset and her speech was reported as not making sense. She sounded confused as if she had lost contact with reality. If this was the situation she may have been becoming psychotic as confusion, perplexity and lability of mood are recognised as symptoms of a psychosis that occurs in the post partum period." 225 There is evidence, however, which may suggest a different inference. The appellant's description of his wife the day before her death (the Sunday), included the following: (T 1447) "… Snezana was on the bed and the twins were on the bed with her, that she put her hand over to his neck and pulled him down on to the bed … She said to him, 'Come over and let's lay in together for a little bit' and he cautioned her to be careful because he didn't want to squash the babies and then the accused said, 'And then I went into the bed with her and just to keep her happy to lay with her and the babies and she said 'Look how they are smiling towards us, I think they are starting to recognise us'.'" 226 Snezana prepared milk bottles for the twins in the late afternoon or early evening. She also packed Zaklina's school bag, ready for the next day. Further, as mentioned, in her conversation with the appellant, she spoke of moving into a flat. 227 Such matters may either suggest an incomplete resolve to take her own life (and that of her children) at the time she spoke, or erratic behaviour. There remains for me the impression that Snezana, genetically, may have been predisposed towards depression, and that shortly before her death she may have been seriously disturbed. The Circumstantial Case 228 I will later deal with the medical evidence. It was common ground that the medical evidence alone was not enough to convict the appellant. His Honour so instructed the jury (SU 8, 127, 207). 229 Each pathologist, even those who believed Snezana had been murdered, acknowledged the possibility that she may have committed suicide. The Crown, therefore, identified a number of circumstances which were said to be incriminating. When added to the medical evidence, they were enough, so it was said, to exclude any reasonable hypothesis other than guilt. The circumstances can be grouped as follows: · First, the assertion by the appellant (characterised as a lie) that he remained for 17 hours alone in his daughter's bedroom. · Second, the appellant's actions the next day did not represent a genuine search for his wife and children. · Third, that Mr Velevski's failure to penetrate the locked door to the bedroom, either by finding the means to open it, or breaking it down, was consistent with knowledge of what lay beyond the door. 230 I will deal with each matter in turn. The Long Sleep 231 In the course of the summing up, his Honour said this: (SU 206) "The next matter that the Crown says was a lie that he told, was that he spent from 1pm to 6am in Zaklina's room and that he slept from about 3 or 4pm until 6am the next morning." 232 His Honour added: "The Crown submits the reason for this lie, and you will remember I said you have to be satisfied that (a), that it was a lie and (b), that it related to a material matter and the Crown says that the reason for this lie is to give him a type of alibi that he was asleep and therefore he did not do it." 233 The context is important. In the course of the weekend (T 787/8), Snezana made it plain that she could no longer tolerate the appellant's parents living at their home (T 114; T 1408). The appellant's parents had lived with Snezana and the appellant (first at Cringila, and then at 10 Castle Court, Berkeley) since 1989 (apart from a period of three months). Later Snezana, somewhat inconsistently, announced that she was leaving, and taking the children. This was the first time she had made such a threat (T (T (T 1211). The appellant believed that they would not remain together (T 1403). 234 It is hardly surprising, in these circumstances, that the appellant should be depressed. He so described himself (T 114/115). He also said he was "very upset and disturbed" (T 1223). 235 Further, it is plain from his conversations with the police, and his evidence, that the appellant did not sleep for the entire time he was in Zaklina's room. Dealing with his statements in chronological order, he first spoke to Snr Const Peter Stefanjuk at approximately 6.00pm on the day of the incident (20 June 1994). Const Stefanjuk was able to speak Yugoslav (T 114). The appellant's account was as follows: (T 114/115) "I then said 'Can you tell me what happened?' He said, 'There was a disagreement between Sneza and her mother when Sneza asked her mother for help in looking after the children. I went into the daughter's bedroom at 1 o'clock and didn't come out until 6 this morning.' I said 'Did you sleep the entire time?' He said, 'I slept a little. I just laid there for periods because I was depressed.' I said 'Did anything else happen that day?' He said 'Sneza told me that my parents had to move out of the house.' I said 'When did you last see your wife?' He said, 'I last saw her at 1 o'clock yesterday.'" 236 When first interviewed on video, with the aid of an interpreter, Mr Velevski made the following statement: "Q229. All right. After you went to bed you say 1 o'clock on Sunday afternoon did you get up at all? A. (SUSPECT) No, doesn't get up till 6 o'clock … Q230. Are you saying you slept from 1 pm to 6 am? A. (SUSPECT) 1 pm to 6 am, yeah." 237 The appellant spoke to a neighbour, Mr Jorge, at 3.00 pm on Monday June 20 1994. It was Mr Jorge who summoned the police. Mr Jorge provided a statement to the police. It was his recollection that the appellant had told him that he had last seen his wife at 2.00 am. That statement was put to the appellant during the course of the interview. The exchange is instructive. It illustrates the appellant's difficulties with language. The ERISP transcript is as follows: "Q248. Did you tell Tony that at 2 am you went into Zaklina's room where you slept? A. (SUSPECT) Yeah. Yeah, yeah. Yeah. A. (INTPRTR) Yes. Q249. Do you agree that a very short time ago you told me you slept from 1 pm to 6 am? A.(INTPRTR) From 1 o'clock from Sunday … A.(SUSPECT) Yeah, Sunday, yeah. A.(INTPRTR) … I wasn't really sleeping though, I just lay down. A.(SUSPECT) No, like a little bit to slow down and slept night and - I don't know, whole time he - he start, you know, like sleep, you know, he doesn't know, you know, he doesn't know … A.(INTPRTR) I really - like I was dozing off and I really really didn't know what time I've fallen asleep. Q250. Well, at any time did you get up and leave your your daughter's bedroom? A.(INTPRTR) No. No, not - not even in the toilet. Q251. Is it correct to say that you were in your daughter's bedroom from 1 pm Sunday to 6 am Monday? A.(SUSPECT) Yeah, 6.00, Monday, yeah." 238 In a later interview (5 July 1994, Q 355) the appellant likened his sleep to "the dead" (Vol 7, p 1941). When he went to sleep in Zaklina's bedroom the door was open (Vol 8, p 2069, Q 184; T 1182). When he woke up it had been locked. 239 In a later interview (20 July 1994), the appellant made the following statement, in answer to a question from the police which was not entirely fair: (Vol 8, p 2097) "Q111. Can you give me any reason why have slept so long, for 17 hours? A.(INTPRTR) I don't know. I can't - I can't imagine how - why I slept so long 'cause this has never happened to me before in my life." 240 Det Snr Const Cassar accompanied Mr Velevski to the morgue on 22 June 1994 to identify the twins. Det Cassar gave the following evidence of his conversation with the appellant: (T 1182) "Q. And in the presence of hearing Detective Little and Mr Klimovski, did the accused say: 'Will I be tested for taking sleeping tablets'? A. That's correct. Q. And you said: 'I don't think so, it's much too late to detect anything. What makes you ask?'? A. Yes I did. I said that. Q. Can you give what his answer was? A. He said to me: 'I can't understand why I slept so long. I've worked triplers and haven't slept for that long. I can't understand why I didn't hear anything.' I said: ;What time did you go to sleep?' He said: 'At 1 o'clock.'" 241 When the police interviewed Mr Velevski on 18 July 1994, his conversation with Det Cassar was put to him. He acknowledged the accuracy of Det Cassar's note. When asked why he wanted to know whether he would be tested for sleeping tablets, he responded with these words: (Vol 8, p 2069) "Because I never - I have never slept for that long what I did on that day, for 17 hours." 242 A number of statements contradicted the appellant's assertion that he had been isolated for such a prolonged period. Some are referred to by Grove J (p 38, para 99/100). First, the appellant spoke to Tode Glavevska (a cousin of Snezana) on 27 June 1994, one week after the bodies had been discovered (T 802). The conversation was overheard by his wife, Snezana Glavevska. The account given by Mrs Glavevska was in these terms: (T 804) "He said that at about 5 o'clock that afternoon she had come out to warm up some milk for the children. He didn't see her after that. She went back into the room. And then he had gone to sleep in Zaklina's room and had fallen asleep heavily." 243 Secondly, the appellant's father, Petre Velevski, when interviewed by the police on 20 June 1994 (the day the bodies were discovered) stated that he, his wife, Zaklina and the appellant had eaten together on the Sunday night. He later changed that evidence. His original evidence, and the change, emerges from the following passage, taken from his evidence: (T 933) "Q. I suggest to you that in the statement that you gave to the police on 20 June 1994 you said these words, 'I had dinner with my wife, Ljubo and my grand-daughter Zaklina. Snezana was at the time with the twins in the lounge room'? A. No, I only had dinner with Zaklina and with my wife Tasa. Ljube was sleeping in the bedroom and Tasa was in the bedroom. Snezana was in the room with the twins and Ljube was in Zaklina's room." 244 Mr Petre Velevski, having made a written statement on 20 June 1994, was later interviewed on video (4 July 1994). An interpreter read his statement. Mr Petre Velevski acknowledged its accuracy. When giving evidence, he explained his mistake upon the following basis: (T 934) "Yes, I saw him. I saw the tape and I - I saw the tape yesterday and I saw myself saying that I am tired, I am exhausted, I don't understand what you are reading. We were grieving, we were very sad." 245 Thirdly, Mr Velevski's neighbour, Mr Jorge, in the passage already referred to, recalled a conversation with Mr Velevski before the police were summoned. Mr Velevski said that he had last seen his wife at 2.00 am (T 886). The door had been locked since 2.00 am (T 886). He acknowledged that Mr Velevski's English was poor (T 885). One may be inclined, upon the basis of language difficulties, to dismiss that account, were it not for the fact that it coincides with the evidence of Snr Const Gray, who was one of the first police to arrive at the premises. Const Gray assisted in breaking down the bedroom door. Immediately before it was broken down, she had the following conversation with the appellant: (T 61) "He returned to the living room a short time later with a hammer. I said to him, 'What time did you last see your wife and kids?' He said, 'I go to bed at 2 this morning'. Velevski then handed me the hammer." 246 The Crown referred to Mr Velevski's assertion that he had been in Zaklina's bedroom from 1.00 pm to 6.00 am as a "type of alibi", as his Honour reminded the jury when summing up (S-U, T 206). Grove J likewise characterised the unbroken stay of the appellant in Zaklina's bedroom as providing "the appellant with an established alibi" (p 37, para 98). An alibi, however, is the assertion (usually supported by witnesses) of an absence of opportunity, because the accused is geographically removed from the scene of the crime. 247 The appellant's account cannot, in my view, be regarded as an alibi, as that term is usually understood. The essence of an alibi is the absence of opportunity. Here the appellant was in an adjacent bedroom. He was present, moreover, when others in the household (namely his parents) were asleep. His account can hardly be said to be an alibi. It was simply a denial of involvement, with an explanation as to where he was. 248 One can readily infer that a statement asserting a false alibi is made with a consciousness of guilt. However, where the statement which is said to be false is not an alibi at all, but a detail of the accused's denial, then the inference may or may not arise, depending upon the nature of the falsehood. 249 Was the statement by the appellant a lie? A number of matters trouble me in respect of the inference that the appellant was deliberately lying. First, there was significant domestic turmoil. Snezana had threatened to leave, taking the children. According to a statement attributed to the appellant by Mrs Glavevski, Snezana had made the threat after two days and two nights of argument, where the appellant had neither eaten nor slept. Whether that be right or wrong (and the appellant did not assert that he had been deprived of sleep), it is not surprising that Mr Velevski should retreat, and seek escape in sleep. 250 Secondly, the foundation for the lie, namely that he slept 17 hours, is insubstantial. Although the appellant, at times, acknowledged that he slept from 1.00 pm to 6.00 am, a fair reading of his answers, making allowance for difficulties in language, makes it clear that he did not sleep for the entire period. For part of the time he lay there thinking. He ultimately fixed the time at which he went to sleep as perhaps 4.00 pm. Fourteen hours is still an extraordinary sleep. Many of his answers, nonetheless, are consistent with something less than that ("I just laid there for periods because I was depressed", "I wasn't really sleeping"). 251 Thirdly, the appellant himself volunteered to the police the matters which made his sleep the more extraordinary. He usually had seven hours sleep a night (T 1246). Even when he had done a triple shift, he never slept for so long (T 1246). He slept normally the night before (T 1237/8). He could offer no explanation as to why he should have slept for so long (T 1247). It seems odd that someone who had taken such trouble, and exercised such skill, to make a murder appear as though it were suicide, should make such disclosures. 252 Fourthly, the appellant, in his answers to the police, gives the impression of being genuinely puzzled by what had occurred. His question to Det Cassar as to whether he would be tested for sleeping tablets is consistent with that impression. Unfortunately, this aspect was not explored. One does not know whether there were sleeping tablets within the household. His question to Det Cassar suggests that there may have been. 253 The statements attributed to Mr Velevski, which suggest that he left the room, are more troubling. It is clear, however, that Mr Velevski's difficulties in communicating in English were profound. From time to time in the ERISP interview he broke into English. His responses were unintelligible. An example is provided in the ERISP tape of 5 July 1994, answer 856 (Vol 8, p 2014). Given that difficulty, and given the subtlety of the concept of am and pm, some doubt much attach to the impression he apparently gave his neighbour and the police constable, that he had last seen Snezana at 2.00 am. In respect of the change to his father's evidence, Petre Velevski may or may not have been confused. There are certainly examples of confusion in the father's evidence, such as the following: (T 939/40) "Q. I am suggesting to you this: When you gave the statement to the police you told them that 'Later on the Sunday evening Ljube and Sneza had a little argument about what dress Sneza was going to wear to a wedding.? A. That was for Saturday or … Q. I am suggesting that you told the police that on the Sunday night? A. No Sunday night was said. That was all happening on Saturday. They said this on Saturday, not on Sunday. Q. The police were not asking what occurred on the Saturday, were they? A. He maybe asked me about the Sunday and I answered him about the Saturday. Q. So you are saying that your reference to the arguments about Snezana's dress was on Saturday night, is that what you are saying? A. That was on Saturday, that is how I know." 254 However, assuming the appellant's statement (concerning the time in Zaklina's bedroom) was a lie, what significance should it be given? It is important to bear in mind the cautionary words of Deane, Dawson and Gaudron JJ in R v Edwards (1993) 178 CLR 193 at 211: "A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognised that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect." 255 If the father's original version were right, the appellant sat down with his parents and six year old daughter Zaklina, and shared an unremarkable meal before slaughtering his family (including Zaklina) several hours later. The Removal of the Parents 256 Early the next morning, Monday 20 June 1994, the appellant transported his aged parents to his sister's home at Blackbutt, near Shellharbour. This was a matter relied upon by the Crown as part of the circumstantial case against the appellant. In argument the Crown said this: (CCA, T 40) "The third is he told his parents that they should leave the house and pack their belongings and he took them to his sister's home in Blackbutt. On the evidence there appears to be no adequate reason given for that happening in those particular circumstances - just after he goes at 6 am to the door and finds it locked." 257 The appellant said that, having awoken at 6.00 am, he tried the bedroom door. It was locked. He knocked, and there was no response (T 1224). His father, Petre Velevski, was nearby. His description of his son's actions was in similar terms (T 951). The appellant assumed that his wife and children were within the locked room. He thereupon decided that he should take his parents to his sister's home. His mother was woken up. Their belongings were gathered. He then telephoned his sister (Mrs Najdovska) to apprise her of his plan. According to her evidence, he made that call at approximately 7.30 am. He arrived half an hour later (T 688). The daughter of Mrs Najdovska, Dianna, gave evidence. She was fifteen years old as at 20 June 1994. She said this: (T 439/40) "Q. Just tell us about what happened? A. They came with my grandparents, he had brought them over to our house with their stuff, like a few belongings and that, and my grandmother was upset and crying, so was my uncle, and they sat in the loungeroom and spoke with my parents." 258 She recalled the appellant (her uncle) saying these words: (T 441) "Q. Did you tell the police that the accused said to you 'Snezana said she doesn't love me or my parents any more. She told them that she can live without a husband. Can my parents stay here until we find them somewhere to live? If she accepts me back I will live without them.' Is that what you told the police? A. Yes, that's right." 259 She also remembered his saying the following words: (T 441) "Q. Do you remember this conversation that he said to you, 'I haven't seen her or the girls since 1.30 pm on Sunday. She locked herself in the room and wouldn't come out. I slept in the other room.'? A. Yes." 260 For my part, I do not believe this episode is incriminatory. Had the appellant removed his parents before his wife and children died, one could understand how suspicion may attach to his actions. The time of death, however, was estimated to be between 9.00 pm (on 19 June 1994) and 5.00 am. By 6.00 am, when these events begin to unfold, the four persons in the bedroom were dead. 261 The actions of the appellant, rather, are consistent with innocence. The family was in crisis. His wife intended to leave with the children. His parents were plainly a source of friction. Their removal may conceivably assist in reconciliation. The Appellant's Actions Thereafter 262 The appellant remained at his sister's home for some time (approximately two hours) (T 441). He then returned to Castle Court to collect the remainder of his parents' belongings, which he delivered to his sister. 263 His actions thereafter are said not to reveal a "realistic pursuit of his wife in order to find out what was the matter" (Grove J, p 40, para 105). First, he went to the Macedonian Welfare Association. He did so at the suggestion of his sister. He arrived at approximately 11.00 am (T 908). He saw Mrs Olga Nikolovski. Mrs Nikolovski said this: (T 908) "… if I go back to the beginning of when I first invited him in the office, the first question he asked me was 'Has my wife come here for help, has my wife been here?' I then said 'What is her name?' He said 'Sneza'. I said 'No she has not'." 264 Mr Velevski then recounted his problems. Mrs Nikolovski gave the following evidence: (T 908) "I then recall asking him if he checked at school if his little girl was at school because he had previously told me that he has - that they have three daughters, a six year old and baby twin girls and then I asked him if he had checked whether his six year old daughter was at school. He said 'No', and then I recall suggesting, 'Ljube, go and check if your daughter is at school' - after our conversation, of course. Then I said - because he kept repeating that he doesn't know where his wife is - I said 'She may be at her mother's place.' I said 'Have you checked at your … mother-in-law's place.' He said 'No, I haven't checked. I don't have their number. They won't give me their phone number'." 265 Mrs Nikolovski also said this: (T 910) "During the conversation Ljube frequently would, like, burst into a spasmodic tearless cry and then he would quickly contain himself. And he would repeat that he is afraid for his daughters because he loves them and he loves his wife." 266 Mrs Nikolovski said that, if he had not heard from his wife by 3.00 pm, he should contact the police. 267 The appellant then went to his daughter's school. He arrived at 11.30 am. He spoke to his daughter's school teacher, Mrs Dimitrovski. She described what happened in these words: (T 917) "My student at the time was giving a math's lesson that I was observing. I went up to the door and I said 'Hello', I smiled. He didn't respond by smiling back or anything like that. There was no change in his appearance and then he said, these are the two notes for Zaklina's absence on Friday and he handed them to me and then he said, 'Is she here', and when he said that he actually took a step inside the classroom and I said 'no' and he stepped back, and he said, 'I haven't seen them since Sunday morning . …'" (emphasis added) 268 She noticed that the appellant was crying. 269 At 1.00 pm the appellant telephoned Mrs Zagorka Glavevska, Snezana's aunt. Mrs Glavevska said this: (T 787) "He told me 'Snezana has left she is not at home she is with her mother and father.' And I told him go and check if she is with them, with the parents." 270 Mrs Glavevska added: (T 787) "Q. Was there anything else said? A. Yes and I told him to notify the police and he told me he cannot do that because he has to be at home in case Snezana returns because he was told he has to wait for 24 hours before looking for her and I told him ring Snezana's parents and to find out if she is there and he told me 'I don't have the number of Snezana's parents." 271 The conversation continued: (T 788) "…. He was crying whilst telling me - he told me they had an argument for two days and two nights and he hadn't eat or slept for those periods, for that time. And he told me that they went visiting his sister at Shellharbour and when he came back at home Snezana was gone and he was looking for her and for the family. And he was looking for her - he was crying and he told me that 'My house is empty, my family's gone'." 272 The appellant did not go to his mother-in-law's home. Instead, he remained within his home at Castle Court, finally approaching neighbours at 3.00 pm. It was the neighbours who summoned the police. 273 I do not find the appellant's attempts to find his wife and children unrealistic. His sister suggested that he should attend the Macedonian Welfare Centre. He did so. It is significant that his first question was: "Has my wife been here?" 274 Mrs Olga Nikolovski suggested that he should go to Zaklina's school. Had Snezana left, she may have dropped Zaklina at the school (by taxi or through her mother). It was a school day. Doing so would assist Snezana to cope with the twins. Again, it is significant that the appellant stepped into the classroom, searching for Zaklina. Further, Mr Velevski told Mrs Glavevska at about 1.00 pm that "he had better be at home in case she returned" (T 787). 275 The Crown pointed to a number of aspects of the appellant's conduct which were suspicious. First, his suggestion that Mrs Nikolovski told him not to contact the police for 24 hours was untrue. All she said was that he should wait until 3.00 pm before contacting the police. However, Mr Velevski (through neighbours) in fact contacted the police at 3.00 pm. Moreover, on his account, it had been 24 hours, or thereabouts, since he had seen his wife and children. 276 Secondly, it was unlikely (so it was said) that Mr Velevski did not know his mother-in-law's telephone number. He certainly knew her address (since he took Zaklina to his mother-in-law from time to time). He gave no adequate explanation for not having gone to that address. 277 I do not find it remarkable that the appellant should not know the telephone number of Snezana's mother. She did not like him. He did not like her. He believed, moreover, that her interference in their marriage was part of the problem (T 908). One imagines he had as little to do with her as possible. 278 It is rather more odd that Mr Velevski did not go to his mother-in-law's home. However, one can, to some extent, understand his diffidence. If his wife had left him, and returned to her mother, attempting to entice her from that location was likely to worsen the situation rather than improve it. The accused asserted that when he telephoned Snezana's aunt, Mrs Glavevska, at 1.00 pm, his purpose (or part of his purpose) was to persuade her to telephone his mother-in-law on his behalf. She, however, refused to do so (ERISP, 5/7/94, Q 594 & A). The Failure to Penetrate the Door 279 The appellant's actions upon waking from his sleep have already been described. At 6.00 am he knocked on the bedroom door. There was no response. He attempted to gain access. The door was locked. At this point he assumed that his wife and children were still inside. 280 Mr Velevski then took his parents to his sister's home. He remained there approximately two hours (T 441). He returned to collect his parents' belongings. Snezana, meanwhile, had not emerged from the bedroom. The house, no doubt, was silent. Mr Velevski gave the following answers in cross examination: (T 1404) "Q. In the interview you had on 5 July 1994 with Det White and Det McGrath, I suggest that you indicated to them in that interview that when you returned on that occasion to collect your parents' belongings, that you did not attempt to knock again on the door? A. No. Q. Why not? A. I don't know myself why I didn't. Q. At that time when you returned did you believe or think that your wife and children were still inside the bedroom? A. I wasn't sure at that stage. Q. The reason why you did not know, Mr Velevski, is that you full well knew that they were inside there and were incapable of answering the door? A. No. I don't know about that. Q. When you went back on that occasion did you try to open the door? A. No. Q. Did you go to look under the door? A. No." 281 It is certainly odd that Mr Velevski did not check the door. However, he said this: (T 1404) "Q. Did you think at that time that it was a possibility that she may have not been in the room and been somewhere else? A. Yes, that she may have been out of the house." 282 The appellant's reaction is less odd if he thought his wife was elsewhere. She had, after all, threatened to leave. He had been gone a number of hours. Although she did not drive, she could have left by taxi, or been picked up by her family. Indeed, later in the day (at 3.00 pm), a house painter, Frank Csapo, working on an adjacent house, was asked the following question by a woman (one infers at the request of the appellant): (T 1072) "Q. And she asked you: Have you seen a car or taxi come around to the house and take his wife and children away? A. Yes." 283 Two criticisms are made of the appellant. First, if he were truly concerned for his wife and children, why did he not batter down the door? Secondly, why did he not at least look under the door? Had he done so, he would have seen his wife's legs stretched out on the floor (cf Snr Const Haydon T 21). 284 In addressing these questions, it is difficult to eradicate hindsight. We now know what lay behind the door. To Mr Velevski, if he were innocent, the annihilation of his family in this manner would have been simply unimaginable. He had a worry of a different kind. His wife wanted nothing to do with him. She was about to leave, and take the children. His task was to woo her back. That was a matter of some delicacy. Battering down the door would be unlikely to further his cause. Snezana was a person who was both fastidious and houseproud. 285 Taking account of those matters favourable to the appellant, and examining critically those matters said to be adverse, I believe a jury ought to have had a reasonable doubt as to the guilt of the appellant. Upon this evidence (leaving aside, for the moment, the medical evidence), I believe that there is a significant possibility that Mr Velevski may be innocent. 286 I will now turn to the medical evidence which occupied much of the time taken by the trial. The Gathering of Medical Evidence 287 Dr Bradhurst is a pathologist attached to the Institute of Forensic Medicine in New South Wales. He assists the New South Wales Coroner. He described his role in these words: (T 238) "For the coroner, we examine people that have died, to find out, or to try and find out, you know, why they died and we then submit a report to the coroner giving our opinion on the cause of death of that person. It involves performing autopsies. It also involves examining the tissues from the body under the microscope." 288 When a death occurs in circumstances identified by s 12A Coroners Act 1980, a pathologist is notified, and attends the scene. On 20 June 1994, Dr Bradhurst was notified. He arrived at Castle Court, Berkeley, at 7.40 pm. The scene was undisturbed. He examined the bodies in situ. He later prepared a report. When examined by the Crown Prosecutor, Dr Bradhurst was taken to that report. He said this: (T 254) "Q. If I can take you then to page 10 of your report. Just you have made a comment there on the cut throat. Just in relation to the first paragraph of what you have indicated there? A. In my opinion the quiet scene findings with no evidence of a struggle, the numerous superficial parallel cuts along the edges of the main deep incised wound and the absence of typical defence type injuries were all considered consistent with this cut throat being self-inflicted rather than with being carried out by someone else." 289 His examination included the following: (T 268) "Q. In fact, in the last paragraph of that comment on the cause of death? A. Yes. Q. You say there: 'My opinion is based only on the medical evidence available to me. This opinion is that on this medical evidence the scene and autopsy findings were consistent with Snezana Velevski's cut throat being self-inflicted rather than being inflicted by the hand of another.'? A. Yes." 290 The examination continued as follows: (T 268) "Q. If you could read from your report half way down that page where you say, 'In my opinion'? A. 'In my opinion the cut throat wound had features typical of self-infliction. It was accompanied by a series of parallel superficial tentative cuts, leading to the margin of the main wound. The wound extended higher and penetrated more deeply on one side, that is the right side of the neck, than the other and passed across the front of the neck. It cut through the median cricoid thyroid ligament at the lower margin of the thyroid cartilage, which although not as frequent as an incised wound cutting through the thyroid hyoid ligament, is nevertheless quite consistent with self-infliction. The fact of two deep cuts into the cervical spine with one extending more deeply to damage the chord is again quite consistent with self-infliction.'" 291 Det Sgt Whyte, who was in charge of the investigation, gave the following evidence: (T 1133) "Q. You were aware, having received that report from Dr Bradhurst and read it, you understood that Dr Bradhurst had said; I am not asking you to express a view about the opinion of these doctors but the fact I want from you is that you understood that Dr Bradhurst said that his view was confirmed by some of his professional colleagues. You understood that to be the case? A. Yes. Q. But you did not get at any time, did you a written statement from Professor Hilton, the Director of the Institute? A. No, I did not. Q. Nor did you get a statement from Dr Lawrence at the Institute? A. No. Q. Nor did you get a statement from Dr Duflou at the Institute? A. No, I didn't. Q. They being doctors who Dr Bradhurst had said agreed with his view? A. Yes. Q. Why did you not get statements from those men? A. I had been to two conferences with a number of those doctors. I can't recall if all doctors were present at both conferences. I am aware of the views they held and I took the view that Dr Bradhurst's report certainly covered the views held by those doctors. I did not see the point of getting any further reports from them." 292 Professor Bottrill assisted Dr Bradhurst to carry out the autopsies. No opinion was sought from Professor Bottrill. 293 Det Sgt Whyte however, sought the opinion of Dr Cooke. It was appropriate that he should have done so. Dr Cooke was the Chief Forensic Pathologist and head of the Department of Forensic Medicine in Western Australia. He had been invited by the New South Wales State Coroner to travel to Sydney to examine the bodies of the deceased. He did so on 25 June 1994 (T 389). He spent a number of hours with Dr Bradhurst reviewing the findings on post mortem (T 389). 294 Dr Cooke prepared a preliminary report on 27 June 1994. He stated that the medical evidence alone was not conclusive (T 389). Dr Cooke explained what he meant in the following passage: (T 390) "A. Yes, I understood the mother's neck injury was the main focus of interest here and the main questing being whether this was actually homicidally, or suicidally, inflicted. I felt from the purely medical point of view, that it was very difficult to make any definite statement in favour of one way or the other. Q. You felt it difficult to make a statement, whether the medical findings concerning the neck injury, were consistent with suicide, as opposed to being consistent with homicide? A. Yes, I felt it was difficult to make a definite statement either way." 295 Dr Cooke, nonetheless, identified eight matters of concern in respect of the hypothesis that Snezana may have committed suicide. 296 In September 1994, Det Whyte sought an opinion from Dr Oettle (T 515). Dr Oettle was a former Director of the Division of Forensic Medicine at Glebe (T 513). In 1994 he practiced as a pathologist. Dr Oettle reviewed the evidence. He prepared a report. He gave the following evidence: (T 516) "Q. As a result of reviewing all of that information, did you form an opinion concerning the manner of death of Snezana? A. Yes. Q. What was that? A. I thought it was homicidal. I didn't think it was suicidal." 297 Dr Oettle provided a number of reasons for his view. I will return to those reasons later in this judgment. 298 Det Whyte then sought an opinion from Dr Byron Collins. Dr Collins is also a pathologist. He was at one time attached to the Department of Pathology at the Geelong Hospital (T 457). He prepared a report. His examination, when giving evidence, included the following: (T 459) "Q. If I could ask you to refer to that report. Page 2 of it, the reason you were consulted, it was clearly indicated to you the police wanted some guidance in relation to pathology findings so far as they might affect the stab wound by self infliction or homicide to Snezana, is that correct? A. Yes. Q. You have indicated in your opinion there was considerable doubt as to the self infliction theory? A. Yes, that is so. Q. And in your preliminary report you have outlined the reasons why you think there was doubt in relation to that? A. Yes." 299 Dr Collins provided a second report. His evidence, in response to the Crown Prosecutor, took the following form: (T 466) "Q. Would you go to that second report please? You indicate in that second report that you are of the opinion that in all probability the fatal neck wound to the throat of Snezana Velevski was not self inflicted? A. Yes. Q. And you provided a number of points or a number of areas the combination of which you say led you to that conclusion, is that correct? A. Yes, that is so. Q. You have also indicated in relation to all of those points that you raised that you are aware there are competing explanations for each of them? A. Yes. Q. You say, when taken in toto, it is your opinion that their weight strongly points to a homicidal throat wound? A. Yes." 300 Dr Collins elaborated upon his view. 301 In March 1995, Det Whyte travelled to Scotland to consult with Professor Mason. Professor Mason is Professor Emeritus of Forensic Medicine at the University of Edinburgh (T 604). Professor Mason had already discussed the case with Dr Bradhurst's colleague, Professor Hilton, and expressed some interest in it (T 607). Professor Mason gave the following evidence: (T 614) "Q. Going to par 14 of your report? A. I, at the end of the day, I think it is quite clear that I say Snezana's cut throat is difficult to analyse in isolation and I emphasise this, analyse in isolation. If we take everything into consideration about it, I would say that on the balance of probabilities in my opinion it is a homicidal wound." 302 Professor Mason relied upon a number of matters, which he identified, and about which I will comment later. 303 The Crown case, as ultimately presented, therefore included Dr Bradhurst, Dr Cooke, Dr Oettle, Dr Byron Collins and Professor Mason. All acknowledged that there was doubt concerning whether Snezana committed suicide (the murder/suicide hypothesis which I, for simplicity, will simply refer to as the suicide hypothesis), or was murdered (the murder/murder hypothesis which I will refer to simply as the murder hypothesis). Dr Bradhurst favoured the suicide hypothesis. Dr Cooke was undecided. Professor Mason, Dr Oettle (rather more emphatically) and Dr Byron Collins favoured the murder hypothesis. Professor Hilton, Professor Bottrill, Dr Duflou and Dr Lawrence were not called as witnesses. It was acknowledged that they favoured the suicide hypothesis. 304 Dr Zillman was called in the defence case. He believed that Snezana had committed suicide. Matters of Concern in the Medical Evidence 305 Three matters are of concern. · First, in my view, the doctors who gave evidence addressed the wrong question. They should not have been obliged, or encouraged, or ultimately permitted, to align themselves for or against, the hypothesis of murder or suicide. That may have been appropriate when reporting to the Coroner on the manner and cause of death (cf s 22 Coroners Act 1980). It was inappropriate, in my opinion, in the trial of the appellant for murder. Rather, each finding (the wounds, the position of the bodies, the location of blood, etc) should have been examined as to whether it was consistent with suicide, or with homicide, or was ambiguous (cf R v Mason (1911) 7 Cr App R 67). · Secondly, it was not necessary, and in many ways undesirable, that the pathologists should have expressed a preference for one hypothesis over another. Their preference may emerge in the minds of the jury, listening to their commentary, based upon their reasoning. However, by encouraging, or permitting the doctors to address, in global terms, the ultimate issue, the pathologists tended to justify their views by resorting to matters of a non-medical nature, which were speculative. · Thirdly, as the matter developed, there was an imbalance between those who favoured the suicide hypothesis, compared to those who favoured homicide. The imbalance was not the chance expression of individual views of doctors who happened to become involved. It was quite deliberate. The course pursued by Det Whyte, and ultimately the Crown Prosecutor, produced that imbalance. At the end of the Crown case, Dr Bradhurst stood alone as favouring the suicide hypothesis. An acknowledgment that his colleagues, Professors Hilton and Bottrill, and Doctors Duflou and Lawrence supported his view, was no substitute for their presence as witnesses. It is a striking feature of those who favoured the murder hypothesis that their reasons for doing so differed. Certainly there was some overlap in their reasoning. However, even within areas which were common to more than one doctor, there were differences in emphasis. The repetition of the murder hypothesis, and the reasons for that hypothesis, through calling all witnesses who favoured that view, when other witnesses were available who might have provided balance, loaded the dice against the appellant. I believe, therefore, that whatever view is taken concerning the totality of the evidence, a miscarriage of justice has occurred in respect of this aspect, justifying a new trial. 306 The submissions on behalf of the appellant touched upon only some of these matters. They, nonetheless, seem to me important. I will deal with each issue in turn. The Wrong Question 307 What the jury required was guidance in respect of matters of a scientific nature which they could not be expected to know without such guidance: R v Turner 1975 QB 834 at 841; Murphy v The Queen (1988-1989) 167 CLR 94 at 111. 308 The nature of the wounds to each victim were matters in respect of which such assistance was, no doubt, necessary. Were the multiple wounds to Snezana, and the depth of each wound, consistent with suicide? Were the small cuts to her neck truly hesitation cuts (such as one may find in suicide), or were they the consequence of a sawing action with a knife? There were many such issues. However, in circumstances where the requirement was proof beyond reasonable doubt, the view of the pathologists, on the totality of the evidence, expressed on the balance of probabilities, was irrelevant. It was also, in this case, because of the imbalance in the evidence, unfair to the accused. 309 Further, although s 80 of the Evidence Act 1995 provides that "Evidence of an opinion is not inadmissible only because it is about" … "an ultimate issue", there are limits. Whether the wounds to Snezana's throat were self-inflicted or homicide is, in one sense, an ultimate issue (R v Mason (1911) 7 Cr App R 67). Nonetheless, it is one stage removed from the issue which the pathologists addressed during the trial. Their views on the totality of the evidence, in my opinion, were beyond the limit (cf Young J in Permanent Trustee Australia Ltd v Bolton (1994) 33 NSWLR 735 at 738-9). Addressing that issue does not conform to the sort of limitations which Mason CJ and Toohey J appeared to have in mind when they made the following remarks in Murphy v The Queen (1988-89) 167 CLR 74 at 110/111: "Was the evidence proposed to be led from Mr Sharpe admissible? It is unnecessary to spend time on the question whether an expert may give an opinion on the very issue of fact or law which the court has to determine. It is doubtful that there is now an absolute rule precluding an expert witness from expressing a view as to the ultimate issue: see Cross on Evidence , 3rd Aust ed (1986), p 717. But we do not think that question arises here. The ultimate issue was whether Leslie Murphy gave the answers which are contained in the record of interview. That was a question for the jury and Mr Sharpe's evidence would not have usurped their function. His evidence, if accepted, would have assisted the jury in answering that question in so far as it bore upon the capacity of Murphy to comprehend what was read to him and further to give the particular answers attributed to him in the record." 310 It should be said that no objection was taken, either upon the basis of relevance, or under s 80, by counsel for the appellant. The Resort to Speculation 311 Section 76 of the Evidence Act 1995 is in these terms: "s 76. Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed." 312 There are a number of exceptions. The exception provided by s 79 is relevant. Section 79 is in these terms: "s 79. If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion that is wholly or substantially based on that knowledge." 313 Gaudron J in HG v The Queen ((1999) 73 ALJR 281) said this, referring to s 79: (at 289/90) "The position at common law is that, if relevant, expert or opinion evidence is admissible with respect to matters about which ordinary persons are unable 'to form a sound judgment … without the assistance of [those] possessing special knowledge or experience … which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience' ( R v Bonython (1984) 38 SASR 45 at 46-47 per King J …). There is no reason to think that the expression 'specialised knowledge' gives rise to a test which is in any respect narrower or more restrictive than the position at common law." 314 Gleeson CJ, in the same case, made the following observation: (at 287) "However, the witness had to identify the expertise he could bring to bear ( Murphy v The Queen (1989) 167 CLR 94 at 111), and as Clark v Ryan (1960) 103 CLR 486) illustrates, his opinions had to be related to his expertise." 315 The Chief Justice added: (at 288) "This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture 'opinions', (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted." 316 Here Dr Cooke identified a number of matters which appeared to him to be incompatible with the hypothesis of suicide by Snezana. The matters included the following evidence, given over objection: (T 393) "A. … At least two buttons are missing, each with residual cotton threads. A third intact button is associated with tearing/cutting of the button hole. I understand no buttons were found at the scene. These features on the jacket may indicate a struggle." 317 Dr Oettle justified his opinion (that the manner of death was murder) by identifying a number of matters which included: (T 517) " … that her nightie was displaced up over the front of the lower abdomen, relative to the position of the nightie over the back of the trunk." 318 Dr Oettle inferred from this, and certain parallel blood smears which he interpreted as having been caused by fingers, that Snezana had been pulled downwards. 319 Dr Oettle attached significance to a displaced hairclip in Snezana's hair. He said this: (T 518) "The pattern of blood spray and distribution of blood on the bed, the cabinet beside the bed, the wall behind the head of the bed, the heater and the carpet adjacent to the bed, are all consistent with Snezana lying face down on the bed with her head and shoulders over the side while her head was extended by her hair being pulled from behind thereby displacing the hair clip backwards." 320 Dr Oettle also found support for his hypothesis of homicide in the following: (T 521) "Q. Now you have indicated in your report that owing to Dr Cook's description of the mortis and the state of the buttons and button hole, that was very suggestive of a struggle? A. Yes, I think it is." 321 Professor Mason's evidence included the following: (T 610) "Q. I will repeat that. You said the disturbance of a slip or nightdress is compatible with her having been pushed into that position? A. Yes. Q. Or I will put this to you: Is it also compatible with her having been pulled into that position? A. Yes." 322 There are other examples. 323 The role of pathologists is somewhat unusual. As mentioned, they do attend the murder scene to obtain visual assistance in their determination of the manner and cause of death. However, in a murder trial it is necessary to ensure that the inferences they drew (from photographs in the case of Dr Oettle and Professor Mason) were matters within their expertise. 324 Here none of the matters set out above were, in my view, susceptible to expert evidence by the pathologist concerned. The displacement of Snezana's nightie may have come about in any number of ways, including its displacement by Dr Bradhurst when he examined Snezana. Dr Bradhurst said this: (T 285) "A. I didn't make a record of - at what stage I took the rectal temperature but probably when the bodies were - as they were originally found whilst Snezana was in that original position, would be the time that I took her rectal temperature and took vaginal and - sorry took rectal smears and the pants may have been rolled down because of that. Q. Do you have a recollection of rolling the pants down at the front like that? A. No, but when you have to take the pants down at the back and they may - that may have been the reason they looked like that now." 325 He added: (T 285) "Q. I want to suggest to you if you were taking the rectal temperature in the position where you first saw her, that would only have required you to pull the pants down from the middle of the back over the buttocks? A. Yes, generally we would remove them down so that they were down and out of the way of the area of the rectum so that I could take the swabs properly and take the temperature properly." 326 So, too, the absence of buttons on Snezana's bed jacket, or the displacement of her hairclip, could have had many causes. These were matters which the Crown may have invited the jury to consider, and from which an inference of struggle might ultimately have been drawn. They were not, however, matters of medical opinion. The Imbalance in the Evidence 327 The Prosecutor's duty was to act fairly, to assist in obtaining justice between the Crown and the accused (Whitehorn v The Queen (1983) 152 CLR 657, per Dawson J at 675). In the same case Deane J said this: (at 664) "The observance of traditional considerations of fairness requires that prosecuting counsel refrain from deciding whether to call a material witness by reference to tactical considerations. Whether or not their names appear on the back of the indictment or information, all witnesses whose testimony is necessary for the presentation of the whole picture, to the extent that it can be presented by admissible and available evidence, should be called by the Crown unless valid reason exists for refraining from calling a particular witness or witnesses, such as that the interests of justice would be prejudiced rather than served by the calling of an unduly large number of witnesses to establish a particular point." 328 Dawson J, in respect of the same issue, made the following comment: (at 674) "And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made." 329 In making that selection, the Prosecutor was obliged to act fairly. Here, Det Whyte had deliberately refrained from seeking reports from doctors whose views coincided with those of Dr Bradhurst which, broadly, favoured the appellant. Instead, he sought other views. I do not doubt that it was appropriate for him to do so. Nor do I doubt that he had no way of knowing in advance whether those views would favour the murder hypothesis or that of suicide. I also do not doubt that the Prosecution would have called such witnesses (from whom reports were solicited), whatever views they ultimately expressed. 330 However, in the result, three of the pathologists (Dr Oettle, Dr Byron Collins and Professor Mason), with varying degrees of emphasis, formed views distinctly adverse to the accused. Dr Cooke, although ultimately undecided on which hypothesis he favoured, nonetheless identified eight matters which suggested to him that the wound was more likely to have been inflicted by another than inflicted by Snezana. He also identified two matters which were consistent with suicide (the quiet scene, and the location of the knife in the pile of bodies). 331 The Crown Prosecutor, in these circumstances, ought, in my view, to have recognised that the presentation of only those witnesses from whom Det Whyte had solicited reports was potentially unfair to the accused. The other witnesses should have been called in the Crown case (Professors Hilton and Bottrill and Doctors Duflou and Lawrence). Alternatively, reports should have been solicited from them, and a selection made from all medical witnesses so that the jury had a balanced presentation of views. 332 I am not suggesting that the Crown must, in every case, strive for balance in the presentation of medical evidence. In some cases that would be impossible. The evidence may be all one way. However, the case against the appellant was not such a case. The Medical Evidence Adverse to the Appellant 333 Most medical clues were ambiguous. There were competing views in respect of many aspects. Two matters, however, pointed strongly to the guilt of the accused, and should be dealt with: · First, there was blood from the children and Snezana herself on the back of Snezana's bed jacket. · Secondly, there was blood spatter on the rear wall, behind the bed. 334 Dealing with the first issue, it was the Crown case that the accused had murdered Snezana first, and then cut the throats of the children over the top of her, as she lay on her stomach. By this means the blood of the children was deposited on the back of her bed jacket. There are, however, difficulties with that suggestion. Snezana had two significant wounds to her neck. The blood spatter suggested that they may have occurred at different times. Blood from the first wound was deposited, and had dried before the second wound was inflicted. Dr Bradhurst said this: (T 287) "The blood on the back of her clothing is hard to explain whether self-infliction or homicide. If her cut throat was self-inflicted after dealing with the children it is possible that the blood came from her holding the child and the babies to her shoulder after their throats had been cut and/or during the act." 335 However, the difficulties Dr Bradhurst had in explaining this aspect were no different from the difficulties other pathologists (who favoured the murder hypothesis) had in explaining other aspects of the evidence. Indeed, one argument advanced by the appellant, and dealt with by Grove J (p 21, para 49) was the inability of the Crown experts "to provide a plausible scenario as to how the appellant is said to have committed the offence". The Crown, for instance, put the following to the accused seeking to explain certain odd features of the scene: (T 1421) "Q. I suggest to you that when you were killing your children you used either a towel or some item of material to stop their blood from spraying? A. No, no. You will be able to find out whether she was able to stop the blood in that way, but I didn't do it. Q. I suggest to you that after killing the four persons you managed to dispose of any cloth or towel that you used to confine the spray of blood? A. No, I did not commit that act. But if she was in my place and she was asked these questions, could she have denied it, could she have concealed it? Q. I suggest to you that you were the one who repositioned the bed and repositioned the children? A. No." 336 The description of the scene, and the absence of any trace of blood elsewhere in the house, would appear to make suggestion of a towel most unlikely. 337 Not enough is known, one way or another, as to how Snezana and the children died such that one could say with confidence that the blood on the back of Snezana's jacket was something which unambiguously pointed to the guilt of the accused. 338 The second matter, relating to the blood spatter on the rear wall, is the most worrying. The blood spatter on the rear wall appeared to extend well beyond the gap between the bedside table, and the outer edge of the double bed mattress (compare photos 10 to 13 with photos 32, 33, 34 and especially 41 and 42). The blood stains on the wall were tested. It was the blood of Snezana. The blood spatter suggested that the bed was not in the position depicted in the photographs and video at the time that Snezana's throat was cut (see especially photographs 10 to 13). If that were right, then the bed had been moved subsequently. 339 Dr Bradhurst (T 385) and Dr Zillman (T 1284/85) both thought Snezana would have been capable of moving the bed after she had cut her throat for the first time. It seems to me, however, that it is highly improbable that Snezana would have bothered to return to the bed to its former location. 340 The evidence, therefore, unless otherwise explained, strongly suggested the presence of another person within the bedroom, who restored the bed to its former position. It was this evidence that Professor Mason found compelling (see Grove J, p 35, para 92). 341 If there was another person, it can only have been the appellant. There was no external damage to the premises. There could be no suggestion that the murders were the work of an outsider. Moreover, I agree with Grove J, and for the reasons he gives, that it was fanciful, in the circumstances, to suggest that it may have been the appellant's father, Petre Velevski (see Grove J, p 14, para 31). If it was murder, it can only have been the appellant. 342 However, before being satisfied that the blood spatter did establish the presence of another person (and thereby, inferentially, the appellant), two issues should be addressed: · First, how far did the bed need to be moved out from the wall in order to explain the extent of the spatter? · Secondly, is it possible, on the evidence, that the bed moved the required distance by some means which do not implicate the appellant? 343 Dealing with the first issue, the bed was on casters. It was therefore capable of movement, although, no doubt, the carpet may have provided some resistance. The bed was located beneath a bed head, which was a fixed unit, combining a canopy (to which a mirror was attached), and a bedside table on either side (T 180/183). Mr J Raymond, an expert in blood spatter, gave the following evidence: (T 593) "Q. You have the photographs of the bed in situ. Are you able to express any opinion about that? A. Some of those stains could not have got on to the wall if the bed was pressed up against it or pressed up against the skirting board. It would have to be some centimetres away but, because I haven't actually reconstructed the scene itself, I cannot say how many centimetres away." 344 However, the bed could not have been flush against the rear of the unit, preventing the splash of blood sideways, as blood struck the wall, and the skirting board near the bedside table. Photograph 32 depicts electrical plugs, and double adaptors, which would have ensured some separation between the bed base, and the wall. Further, there is at least the suspicion that the bed may have been moved on its casters closer to the wall before the photographs and the videos were taken. The ambulance officers were confronted by a horrifying scene. Their immediate concern was the possibility that someone may be alive. Ambulance Officer Gray gave the following evidence: (T 49) "Q. Can you tell us what you did when you went to that bedroom and what you noticed? A. Damage to the door of the bedroom. We walked inside and Constable Gray remained on the left hand side and Officer Heapy and I went to the left hand side of the bed and initially encountered the bodies. I placed my hand, my right hand, on the cot rail so I could lean over and count the bodies. There were four. I then moved back. Officer Heapy then checked for pulse on the adult and child and I crawled on to the bed on my knees, up to the top , so I could reach and check for a fontanelle pulse on the two infants, and there was none." (emphasis added) 345 Ms Gray was also asked the following: (T 49) "Q. At any time whilst you were in that bedroom, did you move the bed or the cot or the deceased in any way? A. No." 346 The other ambulance officer, Mr Heapy, gave similar evidence. He said: (T 55) "Q. What about ambulance officer Amanda Gray, what did she do? A. She knelt onto the bed and felt the tops of the heads of the two babies." 347 He added: (T 55) "Q. Did Ambulance Officer Gray, did she then get off the bed? A. Yes. Q. And what did you do? A. We then left the room. Q. At any time did you move either the bodies or any furniture in the room? A. No." 348 In cross examination, Mr Heapy said this: (T 57) "Q. Did you get up on top of the bed at some stage? A. No. Q. But Miss Gray did get up on top of the bed? A. Yes. Q. And while she was on top of the bed she lent down between the bed and the cot and you saw her do something? A. Yes. Q. The bed was on casters, was it not? A. I did not look; I imagine it was. Q. But despite the bed being on casters, you are unaware of any movement of the bed, either while you were standing alongside the bed or while Miss Gray was on top of the bed; is that what you say? A. Yes, I did not see the bed move at all." 349 Snr Const Gray described the actions of the ambulance officers in these terms: (T 62) "The male ambulance officer Heapy leaned over between the gap between the bed and the cot and lent over and placed his hand on the neck of Mrs Velevski and the six year old child. He could not reach any further. The female ambulance officer, Officer Gray, then crawled onto the bed, braced herself with her right hand on the cot and moved her hand down, her left hand." 350 Despite the belief of those present, the bed may have moved on its casters closer to the wall. Accordingly, I am not persuaded that the blood spatter on the wall, behind the bed, incriminates the appellant beyond any reasonable doubt. 351 Returning to the terms of s 6(1) of the Criminal Appeal Act, I believe that the jury's verdict should be set aside on the grounds that it was unreasonable. The conviction should be quashed. The jury ought to have had a reasonable doubt as to the guilt of the accused. There is, in my belief, a significant possibility that an innocent person has been convicted. Further, in respect of the medical evidence, I believe that there has been a miscarriage of justice justifying (in respect of that aspect) a new trial. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.