Attwater v R; Maris v R - [2021] NSWCCA 17

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Attwater v R; Maris v R [2021] NSWCCA 17
Hearing dates: 14, 15, and 16 October 2020
Date of orders: 26 February 2021
Decision date: 26 February 2021
Before: Bathurst CJ; Davies J; Wilson J
Decision:
(1)   An extension of time is granted to the applicant Maris to file his application for leave to appeal against conviction and sentence;
(2)   To the extent that leave is necessary, leave is granted to the applicants to appeal against conviction;
(3)   In each case, the appeal is dismissed;
(4)   Leave is granted to the applicants to appeal against sentence;
(5)   In each case, the appeal is dismissed.

Catchwords:
CRIMINAL LAW – trial - appeal against conviction – joint trial – aggravated sexual assault – manslaughter – hinder discovery of evidence – question of error in the directions to the jury concerning the use made of evidence of lies – whether convictions not supported by the evidence
CRIMINAL LAW – appeal against sentence – asserted error in findings of fact concerning level of intoxication of complainant – asserted failure to take into account absence of planning – asserted error in assessment of seriousness of crime – question of delay as a mitigating feature – question of extra-curial punishment as mitigating feature – relevance of post offending conduct – prospects of rehabilitation – manifest excess

Legislation Cited:
Coroner’s Act 2009 (NSW)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)

Cases Cited:
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
Gibson v R [2019] NSWCCA 221
Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353
Ibrahim v R [2005] NSWSC 1028
Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Mulato v R [2006] NSWCCA 282
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12
Perrin v R [2006] NSWCCA 64
R v Attwater; R v Maris [2017] NSWSC 1710
R v Baker [2000] NSWCCA 85
R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 455; (2002) 129 A Crim R 242
R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398
Rv O’Donoghue (1988) 34 A Crim R 397
R v Smith [2017] NSWSC 900
R v Sutton (1986) 5 NSWLR 697
R v ToiaSiulai [2004] NSWCCA 152
Rend v R [2006] NSWCCA 178
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Tabbah v R [2017] NSWCCA 55
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279
Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220
Zoneff v The Queen (2000) 200 CLR 234

Category: Principal judgment
Parties: Adrian Attwater
Paul Maris
Regina
Representation:
Counsel:
J Manuell SC / T Quilter (Applicant Attwater)
J Stratton SC / T Hennessey (Applicant Maris)
D Kell SC / G Huxley (Respondent)
Solicitors:
Legal Aid (Applicant Attwater)
P Williams and Company Lawyers (Applicant Maris)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/00192006; 2016/00190670
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2017] NSWSC 1710

Date of Decision:

8 December 2017

Before:

Fullerton J

File Number(s):

2016/00192006; 2016/00190670

Judgment

THE COURT: In late January 2011 on a remote beach at Iluka, near Port Macquarie, Lynette “Norma” Daley died from blood loss. She had, in the day or so prior to her death, been on a camping or fishing trip with Adrian Attwater and Paul Maris. Much later, on 6 September 2017, both men were found guilty by a jury of offences connected with Ms Daley’s death: Attwater of her manslaughter; each of an aggravated sexual assault upon Ms Daley; and Maris of doing an act with intent to hinder the discovery of evidence concerning a serious indictable offence.
On 8 December 2017, sentence was imposed on each man by Fullerton J in the Supreme Court. An aggregate sentence of 19 years imprisonment with a non-parole period (“NPP”) of 14 years and 3 months was imposed on Attwater; Maris was sentenced to an aggregate term of 9 years with a NPP of 6 years and 9 months: R v Attwater; R v Maris [2017] NSWSC 1710.
By Notice of Application for Leave to Appeal dated 13 March 2020, Attwater appeals and, insofar as it is necessary to do so, seeks leave to appeal, against his conviction and sentence. Maris seeks leave, by Notice filed out of time on 12 August 2020, to appeal against his conviction and sentence.
The appeals were heard before this Court over three days on 14, 15, and 16 October 2020.

the conviction appeals

Adrian Attwater advances two grounds of appeal against conviction, being:

“1. The appellant appeals his convictions on the ground that his trial miscarried because the trial judge made an error of law by misdirecting the jury about lies;
2. The appellant seeks leave to appeal against his convictions on the ground that his convictions were unreasonable, or could not be supported, having regard to the evidence”.

Paul Maris seeks leave to advance two grounds, similarly pleaded:

“1. The judge erred in directing the jury on the issue of lies;
2. The jury’s verdicts were unreasonable, or could not be supported, having regard to the evidence”.

The first of the grounds raises a question of law and can be brought as of right by Attwater, pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). The leave of the Court is required by Maris, as his proposed appeal was filed out of time. The second ground raises a question of mixed fact and law, and leave is required by each man to advance it, pursuant to s 5(1)(b) of the Act.
For convenience, each applicant will be referred to by surname, or as “the applicant/s”.
To place ground 1 in the context of the evidence led at trial and understand the nature of the lies relied upon by the Crown, and to understand the disposition of ground 2, it is necessary to set out the evidence adduced by the Crown at trial against Attwater and Maris, and the evidence adduced for Attwater, in some detail. Neither applicant gave evidence at trial.

The Evidence

An Overview of the Crown Case

The trial of the applicants proceeded from arraignment before the jury panel on 31 July 2017 to the return of verdicts by the jury on 6 September 2017. The evidence was extensive.
By way of short overview, the deceased, Ms Daley, knew the applicants socially, and had been in an “on again – off again” relationship with Attwater for a period prior to her death. On 26 January 2011, she accompanied the applicants to Ten Mile Beach (also known as Nine Mile Beach) at Iluka for a camping and fishing trip. The trio travelled in a four-wheel drive “troop carrier” that was owned by Maris. They took a quantity of alcohol with them for the trip, and all three consumed a large amount of liquor over the course of Australia Day.
Three areas of the beach were identified at trial as significant. “Site One” was at a location around the middle of the beach. Here, the troop carrier was parked and the three stayed at the location for some hours. It was at that location, on a mattress in the back of the troop carrier, on the evening of 26 January 2011, that Attwater thrust his fist or some part of his hand into Ms Daley’s vagina, an act described as “fisting”, causing very significant vaginal injuries that led, some hours later, to her death. At about the same time as Attwater performed that act, Maris inserted his penis into Ms Daley’s mouth. The Crown contended that Ms Daley could not consent to either act of sexual intercourse because she was so affected by alcohol as to be incapable of doing so, or she did not freely and voluntarily consent to the acts because her level of intoxication prevented it; and that the applicants knew that or were reckless as to her lack of consent, or had no reasonable grounds for believing that Ms Daley had consented.
Afterwards, Ms Daley lay on the mattress in the back of the troop carrier. She was bleeding from the vaginal injuries from which she died some hours later.
The Crown case against Attwater for Ms Daley’s manslaughter was advanced on two, alternative, bases. Firstly, that the deliberate act of “fisting” which caused her death was both unlawful, as a sexual act to which no consent had been given, and dangerous, in that a reasonable person in Attwater’s position would have appreciated the risk of serious injury inherent in it. Alternatively, the Crown argued that Attwater was criminally negligent in not fulfilling the legal duty of care he owed Ms Daley to preserve her life, after she was injured, by failing to obtain medical assistance for her in a timely manner.
In the early morning of 27 January 2011, Maris drove the troop carrier towards the northern end of Ten Mile Beach, to a point known as Black Rock, or “Site Two”, and the vehicle and its occupants remained there for some time. At some point not long before dusk the group removed to “Site Three”, where Ms Daley died as a consequence of the vaginal injuries inflicted upon her by Attwater. Also at that location, Maris burned the mattress on which the sexual acts had been committed, and at least one piece of Ms Daley’s clothing, a bra. His destruction by fire of those items was relied upon by the Crown with respect to the hinder offence of which he was convicted.
At 6.01am on 27 January 2011, Maris placed a telephone call to the Triple 0 operator and asked for an ambulance. Attwater attempted to resuscitate Ms Daley. Ms Daley was either dead or dying at that time.
An ambulance arrived at Site 3 shortly before 7am, with police officers arriving shortly thereafter. By that time Ms Daley was dead. She was found by the ambulance officers lying naked on the sands of the beach just above the tide line.
Both Attwater and Maris were interviewed that day, and each gave an account of events that, in part, the Crown relied upon as lies which pointed to the unreliability of each man. Whilst each made an admission to an act of sexual intercourse, much of the remainder of the accounts given by the applicants of the events of 26 and 27 January 2011 were inconsistent with other evidence, and were pointed to by the Crown as lies. This included Attwater’s assertions that, on the morning of 27 January 2011, Ms Daley had walked into the surf for a swim with him, whereupon she suffered a seizure; and Maris’ claims that he had burnt the mattress from the back of the troop carrier only because it was malodorous, and not to destroy evidence of a crime.

Family Evidence Concerning Ms Daley

Gordon Davis married Ms Daley’s mother, Thelma Davis, when Ms Daley was very young, and played a father role to her and her siblings. He gave some evidence about Ms Daley’s childhood, before describing a “fit” or seizure he saw her experience about a year before her death. He thought that Ms Daley may have taken some medication related to the fit, perhaps Epilim.
Over the years Mr Davis had seen Ms Daley at the beach on many occasions, but had never known her to swim in the ocean. When she swam in the river, she always wore a swimming costume or shorts and a t-shirt, being very conscious of her body.
He said that Ms Daley had begun using alcohol when she was in her teens, and had developed an alcohol problem. She also used drugs occasionally.
Ms Daley’s sister, Joanne Daley, confirmed that Ms Daley did not like swimming in the ocean, being scared of monsters she thought were in there. She would stand in the sea in water of knee or waist height, but never swim. She did swim in rivers, and used to wear the clothes she had on when doing so. She generally wore clothing that was modest, and not revealing. Joanne Daley also confirmed that Ms Daley had a problem with alcohol, and she sometimes saw her in the town of Maclean, drunk. She was drunk most days. She had on occasion seen her sister with Attwater drinking at a place in Maclean known as “Fifty cents” and knew Ms Daley to be involved with Attwater “on and off”.
Adrian Martin had known Ms Daley for about three years by the time of her death, and had been in a relationship with her for two of those three years. He was aware that she did not like swimming in the ocean.
Mr Martin saw Ms Daley suffer a fit on two occasions and said she had been admitted to hospital on both occasions. He confirmed that she was a heavy drinker and did not take care of herself, often not eating for days at a time, and drinking and smoking regularly. He said that she was homeless in the last year of her life, and stayed at the homes of other people. She used bad language.
Another of Ms Daley’s sisters, Tina Daley, saw her on 25 January 2011. On that day, Ms Daley showed Tina a bruise that she had below her right breast, but she had no other bruises that Tina could see or Ms Daley mentioned, and no scratches. Tina also saw Ms Daley early on the morning of Australia Day, at about 5am, when she arrived in a troop carrier with Attwater and Maris and two other men.
Tina observed that Ms Daley was drunk; she was stumbling and her speech was slurred. She smelled of alcohol.

Australia Day 2011 - Evidence of Ms Daley’s Intoxication

Craig Peglar was a friend of Maris. He saw Maris at about 9.30 or 10am on Australia Day when Maris called in to Mr Peglar’s home. Mr Peglar was introduced to Attwater and Ms Daley on that occasion. Later that day, at about 3.30pm, Mr Peglar again saw the three as they sat on a log at Back Beach, one of the beaches that made up Ten Mile Beach. He observed that Ms Daley appeared to be intoxicated: “she had a bit of the stumbles up, and wobbles up”. He saw Ms Daley drinking with Attwater and Maris during the hour he and his family were at the beach. When he left, Mr Peglar saw that Ms Daley was stumbling as she walked. Neither Attwater nor Maris seemed to be intoxicated.
Peter Gallagher knew both applicants. On Australia Day he saw them and Ms Daley sitting in Maris’ troop carrier at the front of a grocery store, Foodworks, in Iluka, at about 4.30 in the afternoon. Mr Gallagher approached the vehicle and spoke with Attwater, who told him that he and his companions were:

“[…] going up the beach camping and fishing and getting on the piss.”

Although Mr Gallagher did not really speak with Ms Daley he observed her to be:

“pretty well intoxicated […] Her eyes were glazed, her head was nodding [dipping her chin to her chest], eyes a little bit shut, every so often she’d just have a bit of a giggle”.

He characterised her level of intoxication as “near high”. Both men seemed to be a little bit intoxicated.
In 2011, Raymond Lester owned the service station next to Foodworks in Iluka. At sometime around 5.30pm on Australia Day, he saw a troop carrier with a male seated inside and a male and female outside the vehicle. The woman seemed to be very unsteady on her feet. She was wearing black tracksuit pants and a black bra. She walked with the male towards the Foodworks; the male (Maris) also seemed unsteady in walking. Mr Lester assessed both as highly affected by alcohol.
Karen Collett was working at Foodworks that day. She saw Ms Daley and Maris come into the store, noticing that they were scruffy, dirty, and well affected by alcohol. Ms Daley had a lot of leaf debris in her hair and stumbled when she walked. In an aisle of the store, Ms Collett saw Maris making sexual gestures towards Ms Daley, thrusting himself against her. Ms Daley did not react.
They bought some preserved sausage and left. Ms Collett watched them as they went to a four-wheel drive outside. They opened the back of the vehicle and put the sausage in an esky. Maris reached over and pulled Ms Daley’s tracksuit pants down to her knees and, laughing, she pulled them up. He repeated the action and Ms Daley, with her buttocks exposed, yelled out “anyone want a piece of this”. She then pulled her tracksuit pants back up again.
Pamela Kennedy was also working at Foodworks on the afternoon of Australia Day. She saw Ms Daley and Maris inside the store at about 6pm that day. They made some purchases, but left them behind, causing Ms Kennedy to run after them with their groceries. She watched as they went to a car, where the man pulled the woman’s pants down twice in quick succession, with her quickly pulling them up again.
Brian Newton was parked near Foodworks at around 5.30pm on 26 January 2011 when a troop carrier pulled up near his vehicle and also parked. There were three people in the front of the vehicle; the person in the centre was a woman. The driver (Attwater) called out to him and Mr Newton, who did not know the occupants of the car, walked to the driver’s window and asked the driver what he wanted. Attwater responded:

“Mate, can you do us a favour? Can you drop this thing down the road for us please?”

By “this thing” Mr Newton understood the driver to be referring to the lady sitting in the car. He observed the woman to be “in a state”, telling the jury:

“I seen a lady sitting in between the two males, and she looked very very intoxicated, or otherwise, didn’t – she didn’t really know where she was. […] She was sitting in the passenger seat with her head down [forward with chin on chest]”.

When the comment was made about “this thing” she raised her head and made a sound, “uhhh”. Mr Newton thought the driver was affected by alcohol to some degree, with the male passenger affected to a greater degree than the driver.
The applicants and Ms Daley drove out to Ten Mile Beach that evening.

Events of 27 January 2011

Triple 0 Call

At 6.01am on 27 January 2011 a telephone call was placed to the Triple 0 operator by Maris, who asked for an ambulance to be dispatched to Nine [Ten] Mile Beach. He said:

“The person isn’t breathing. We’re trying to give it, like, um, my mate’s trying to put – what is it – mouth to mouth.”

He was asked to tell the operator “exactly what happened”, and responded:

“The person isn’t breathing… he’s been giving her mouth to mouth for 5 minutes or longer and she’s not breathing.”

He said that she was not conscious. He continued:

“Um, well, we’ve all been drinking, but, yeah, she’s just stopped breathing, and my mate’s still trying to resuscitate her now.”

The operator asked Maris what happened and Maris repeated that “she just stopped breathing”. When asked if she had choked he said she had not. He said “she’s bleeding”.
The call dropped out and Maris placed a second call at 6.08am. The operator gave instructions for chest compressions to be performed. When again asked what had happened, Maris – who was standing next to Attwater as the latter administered chest compressions as instructed – said:

“She just stopped breathing. Yeah, yeah, we’ve had a few beers and stuff and, yeah, she just stopped breathing.”

Attwater, speaking in the background, added:

“She was blind. She was off her fucking face last night.”

Maris was specifically asked if they had “pulled her from the water” but answered in the negative. As the applicants attempted to follow the first aid instructions given to them, Attwater could be heard to say:

“Jesus Christ. Fuckin’ hell Paulie. Hold the nose and hit, tilt back the head. Come on, babe. Wake up, babe. Where are ya? Here ya you fuckin’ bitch”.

Of the first aid he and Maris were instructed to administer, Attwater said, “Fuckin’ pretty hard fellas”.
Leaving the call connected and his telephone set to speaker so that Attwater and the Operator could continue to speak, Maris left and drove up the beach to where he could see another person, intending to ask for help.
Attwater continued with cardio-pulmonary resuscitation (“CPR”), telling the operator there was “no response”, but he was “not giving up”. He said:

“What a good fucking Australia Day, fuck sake, fucking hell you bloody bitch.”

He told the operator, “I got no pulse”.

Evidence of Nicholas Miller

The man Maris saw and brought back to Attwater and Ms Daley was Nicholas Miller. The conversation with the Emergency Operator continued after Maris and Mr Miller arrived. The Operator asked Maris, “It didn’t look like she’d had a fit or anything before it did it”, to which he replied, “Um, no”. Mr Miller estimated the distance between Maris and Attwater at the time as about 2 metres.
Nicholas Miller had been camping at a campground near Black Rock. He rose before dawn on 27 January and went down to the beach to go fishing. He could see that there was a fire blazing further south down the beach, about a kilometre away. The fire appeared to have considerable fuel, and the flames were the height of a person. He could see the shape of a vehicle and, indistinctly, people, near the fire. He made those observations no later than 5.45am.
Half an hour after he arrived the sun rose. The sun rose on that day at 6.11am; dawn twilight was at 5.44am. Fifteen minutes or so after Mr Miller’s arrival, at 6.30am, a four-wheel drive approached him. The driver [Maris] called to Mr Miller to come with him as he needed help. Mr Miller got into the vehicle, which turned south and drove back along the beach. The driver’s speech was slurred, he smelt of alcohol, and he was agitated. It was about 6.30am.
The vehicle stopped along the beach where another man [Attwater] was performing CPR on a naked woman lying on the sand, face upwards, with her feet towards the water, just at the tide line. There were drag marks in the sand leading to her heels. There was a clot of blood of some size on the sand washing about in the tide as it came in and out, close to the woman’s feet. Her body and hair were wet, her lips were dry and appeared dehydrated, and her eyes were closed and sandy. She appeared to have blood on her pubic hair, and there were bruises on her arms, legs, and upper thighs.
Mr Miller, who was trained in administering CPR, went to the woman and felt for a pulse in her neck. There was none. He then felt her arm and shoulder and found her cold and fairly solid to the touch. He checked her eye and saw no reaction. Attwater told Mr Miller that he had been doing CPR for a while. Mr Miller took over. He could see that Ms Daley was not breathing. Neither Maris nor Attwater told Mr Miller what had happened to Ms Daley; he was not told that she had suffered a seizure. To the Emergency Operator, Mr Miller asked for police to be dispatched, as well as an ambulance, telling him:

“There’s blood coming out of her vagina.”

At one point Mr Miller overheard Attwater tell Maris, “I didn’t know a [word not heard] hug could kill you”. Maris told him to shut up. The men gave Mr Miller quick glances as they spoke together.
Mr Miller thought that Attwater was a little bit intoxicated. Maris was also affected, with slurred speech. Attwater was wearing a pair of jeans which Mr Miller thought were completely soaked.
Maris left in the troop carrier and returned to Site 3 soon after with two other people to assist. When he returned to the area, he parked the troop carrier on top of the fire pile on the beach. The fire site was close to the waterline and 4 or 5 metres north of Ms Daley’s body. It appeared to have had sand shovelled onto it.

The Knox Evidence

After having brought Mr Miller to the scene to assist, Maris saw some other people on the beach and went to ask them for help. These people were father and son Fred Knox and Allan Knox. By the time of the trial Fred Knox, who had been elderly, had died. His statement was read to the jury. He was approached by a man in a troop carrier – Maris – who seemed distressed, and asked him and his son to come with him to where there was “a person dying”. Mr Knox asked what had happened and was told, “Oh, you know, we had a few drinks, and we were going for a swim”.
Having followed Maris along the beach in his own car, Fred Knox saw Attwater – wearing a pair of jeans – leaning over the top of a naked woman lying on the beach administering chest compressions to her.
His son Allan Knox recalled the man who asked for his and his father’s help as appearing “a little bit panicky”. On arriving at Site 3 he saw another man performing CPR on a naked woman. That man appeared to be intoxicated, and he was “a bit agitated and nervous”. He seemed upset. He was walking around in circles swearing, saying “Where’s the fucking ambulance” and “A great fucking Australia Day”. He said they had been drinking and they were going for a swim.

Ambulance Officers Arrive

An ambulance arrived at Site 3 a few minutes before 7am (at either 6.52 or 6.57am). Adam Jarrett, an ambulance officer for 11 years at that time and an intensive care paramedic for 6, was one of three officers to arrive at the beach. He saw Attwater with Ms Daley performing chest compressions.
Mr Jarrett checked Ms Daley’s status by first touching and moving her foot. Her foot was cold although rigor mortis had not yet set in. She was asystolic, an indicator of death. In an Ambulance Service patient record card, Mr Jarrett noted “nil vitals”, reflecting his observations of a complete absence of any signs of life. No further resuscitation was performed, the ambulance officers having concluded that Ms Daley was dead.
Mr Jarrett observed a large clot of blood on the sand that he thought was consistent with a placenta delivery; the ambulance had driven over the clot on arriving at the scene.
Attwater appeared upset and withdrawn. Mr Jarrett asked him what had happened, and he said:

“We were out camping. We were having a wild sex session. I noticed blood and a smell that was terrible and we were going to the ocean for a wash and she fell in my arms on the way to the ocean beach".

Referring to the type of sex he had had with Ms Daley, Attwater referred to “fisting” and indicated by motioning with his clenched fist moving through the encircled fingers of his other hand. The terms Attwater used to describe the act were “fisting” and “spit-roasting”, the latter being a term to refer to “a female engaged in sex between two males”.
He later spoke to Maris, saying, “It sounds like you were having a wild sex session”. Maris, who appeared “flat” when Mr Jarrett saw him, responded “Yeah, it was pretty wild”.
David Jeffery was another of the ambulance officers who attended Ten Mile Beach. He made a number of observations of Ms Daley, noting that she was not breathing, had no blood pressure, with skin cold and tinged blue, and was completely unresponsive. He concluded that she was dead. He saw blood around her pubic area and her vagina, and a large blood clot, about 15 centimetres in diameter, close by.
Mr Jeffery spoke to Maris who told him that they had “wild sex” the previous night and that there was “blood everywhere and there was blood on the mattress”. He later spoke with Attwater who volunteered, “we had wild sex last night”.
The third paramedic was Timothy Arndell. Like his colleagues, he saw that that Ms Daley was dead and he got a sheet from the ambulance and covered her with it.

First Police at the Scene

Senior Constable Greg Hembrow and Sergeant Ian McDonald arrived at the beach where Ms Daley was lying at 7.18am on 27 January 2011. There were already ambulance officers in attendance. Ms Daley’s body had been covered with a sheet. Attwater was leaning against the troop carrier with his arms crossed over his head.
Maris told S/C Hembrow that:

“[…] we come up here to go fishing. We ended up having wild sex last night. In the morning everything was good”.

Sgt McDonald, an officer of 24 years’ experience as at January 2011, took a number of photographs of the area. He saw a pile of burnt debris at the rear of and under the troop carrier. Looking into the back of the vehicle, he smelled a pungent and distinctive smell reminiscent of other scenes he had attended where there had been an amount of blood for a period of time.
He spoke briefly with Attwater, noticing that he had blood on the right back pocket and right knee of his jeans.
Detectives were called in, with Detective Sergeant Grahame Burke arriving at Site 3 at 9.15am on 27 January 2011. He made an inspection of each of the sites relating to events of 26 and 27 January 2011.
He also spoke with Attwater, electronically recording the conversation.

Attwater’s Interview of 27 January 2011

Of the events of Australia Day and that morning, Attwater said:

“We came down here on Australia Day, we got on the piss, got up in the morning, me and Lynette went for a swim. I think she might’ve had a fit or something. I dragged her out of the water and I commenced CPR, she wasn’t breathing. My mate Paul rang up triple 0 because he didn’t know what to do neither and neither did I and that’s and she had no, no pulse, no pulse mate when I dragged her out of the water.”

Attwater said that he had met Ms Daley through drinking alcohol and had known her for years. He said they had been involved on and off over that time, and were currently “sexual partners”. He said that he and Ms Daley had been drinking wine, and then it got dark. Dusk on Australia Day was at 7.50pm and second twilight was at 8.16pm. Attwater told D/S Burke:

“It's not real fuckin' good for fuckin' Australia Day for me, fuckin' my girl to be laying on the fuckin' beach [..] no cover over her and I'm getting interrogated for fuckin' trying to save her fuckin' life and it's, it's just fuckin' spinning me out here.”

Attwater said that, on the morning of 27 January 2011 he and Ms Daley got up early, he thought around 7am although he did not have a watch, and went for a swim. Both were intoxicated. They were speaking together before entering the water and Ms Daley was as she always was. He said:

“When Norma was in the water, I was, I was near her and I grabbed hold of her and I don’t know it was like she was having like a little seizure or something I’m not sure, I’m not a fuckin’ doctor man. […] All I did was drag her out of the fuckin’ water and I said to Paul, I said, I don’t think she’s breathing man, and then I, as I said I rolled her on her fuckin’ side and I started commencing CPR as the way I, as the way I knows of it.”

The applicant described Ms Daley in the course of the “seizure” as “just shaking”. He could not see what her eyes were doing. He dragged her from the water. Both were naked, as they had gone into the water to swim naked. Attwater told D/S Burke that he was still naked when doing CPR and when “they turned up”, putting a pair of jeans on afterwards. He told the officer:

“She got fuckin’, if you have a look Norma’s gone to the hospital quite a fuckin’ few times […] when shaking like that, like alcoholic fuckin’ fits and shit. […]
That’s what I’m saying she might have had one of them when she was in the fuckin’ water when I was fuckin’ dragging her out man.”

Prior to entering the water Attwater said that Ms Daley was “all fuckin’ sweet”.
He said that they had spent the night at Black Rock and had driven down to Site 3 that morning. He and Ms Daley had then gone for a swim. Both were intoxicated, that being the reason they had gone swimming. On a scale where 1 is sober and 10 is “paralytic,” Attwater rated Ms Daley as a “7” when they went swimming, although she was able to have a conversation with him.
Attwater was asked whether he had had sex with Ms Daley and said that he had, he thought on the beach [Site 1]. He thought that it was late in the night. He was asked if intercourse was “penis vagina sex”, replying:

“It was my fuckin’ hand.”

Attwater said that he was “playing with her” and “she was suckin’ fuckin’ old matie’s dick”, “old matie” being Maris. He said “she was happy for that to happen”. Attwater was asked to explain what he had done and said:

“You put the fuckin’ hand in the fuckin’ vagina.”

D/S Burke asked whether he meant his whole hand or his fingers, and replied:

“Just about my whole hand yeah.”

He said Ms Daley was happy for the act he agreed was “just about” called “fisting” to be done to her. He said that he had done it before and it had not caused any injury, telling the officer, “She’s had seven kids man”. Attwater said:

“Come on brother fuck, I don't want to fuckin' talk about this any fuckin' more. […] I've told you what happened that's, that's it. […] We came up the beach we were, we went up here, we were drinking. I've come down we mucked around we went for a swim in the fuckin' nude, something happened and I had to fuckin' pull her out of the fuckin' water man and I commenced CPR.”

He said that he did not think that he had caused Ms Daley any injury, although he referred to “a little bit of blood”. He said that when he had “fisted” Ms Daley in the past it was normal for there to be a little bit of blood. He knew that she was not menstruating on this occasion.
The applicant was asked about a fire and told D/S Burke that he thought Paul [Maris] had lit a fire to burn the mattress as “it stunk”. It “stunk” because it had Ms Daley’s blood on it from the “fisting”, the act having taken place on the mattress in the back of the troop carrier. Attwater said that he had known “straight away” that Ms Daley was bleeding during the sexual act and stopped. He could not say what may have caused the bleeding. Although there was “fuck all” blood on the mattress “it just fuckin’ stunk”.
Attwater said that, after the sexual activity, Ms Daley “went to sleep for fuckin’ hours” and then got up and went swimming. She had displayed no signs of illness and said nothing about the bleeding:

“[…] she was right man, she was right, she was right. “

She was naked during the sexual act but put a pair of tracksuit pants put on afterwards. She slept on the mattress in the back of the vehicle; getting up to swim the next morning. When they were swimming Maris burnt the mattress, there having been an earlier discussion about its odour.
Of the sexual act, Attwater said that Ms Daley “enjoyed it”. He denied that what he did was “rough”.
He said that, after moving to Black Rock, he had been drinking UDL cans and wine.

Maris’ Interview of 27 January 2011

Maris told D/S Burke that he, Attwater and Ms Daley had gone to the beach and parked on the sand dunes [Site 1]. He said:

“They had a bit of sex and um, I sort of she, I don’t know how to say it, she gave me a head job. […] But I wasn’t interested, I couldn’t get it up, I was drinking.”

He said that Attwater and Ms Daley had cleaned themselves up and afterwards, they stayed at that location for “a fair while”. On leaving, he and Attwater had been in and out of the car picking out a route through the sand dunes. They returned to the southern end of the beach and:

“[…] the car stank, ‘cause like it looked like she had her periods and it was all over my mattress and they went in for a swim to clean themselves up and I got a bit of diesel out of my car, burnt the mattress, there was a sac of wine, it was empty, maybe a Coke bottle, I’m not quite sure. Then um, Adrian asked me to, in only, I don’t know, about that deep of water, bugger all, Adrian was asking me to help him. I helped him fucken drag Norma out and then, um, I rang Triple 0, had it on speaker phone […]”.

Maris said that, during the call, he had gone to get a fellow from further up the beach to help, and then had gone and asked two more people to come to assist them. He said that, when he returned, he “threw a bit of sand” over the fire.
Asked for more detail about the trio’s trip, he said they had decided to go fishing, as they had done on occasion in the past. Ms Daley had spent the night of 25 January 2011 at his home. On Australia Day Ms Daley had appeared:

“Um, probably a little bit druggie [or groggy] and that, I think she’d had a fair few wines, she had wine before I even drove into town, I’m not sure what time that was […] might have been just before 10.00, might have been 9.30 or something. […] But she’d been drinking by then.”

They had come up into the sand dunes and “just drank”. At Site 1 they had stayed for a fair while and had “a good drink”. He was not sure how they had started having sex:

“I think Norma might have giving [sic] Adrian a head job, having sex there for a fair while. I think he might have, I don’t know what you call it, fisted her. […] Um, later on she gave me a head job, I wasn’t interested and yeah, there was no violence or anything like that.”

It had been night when this took place. Attwater and Ms Daley were in the back and Maris “just jumped over”; he thought Attwater may have asked him if he wanted to join in. The oral intercourse in which he was involved occurred “sort of” at the same time as Attwater had sex with Ms Daley. Maris said that Ms Daley was “fine” at that stage, and “she actually wanted to do it”. When asked how he knew she wanted to engage in that activity he said:

“Because she just done it yeah, she, there was no dramas with any of that”.

Maris said that his involvement was very brief; Attwater’s was “for a fair while before then and sort of after”. Later, Attwater and Ms Daley went for a swim to clean themselves up. They moved locations [to Site 2], with Attwater and Maris in the front of the troop carrier and Ms Daley in the back during the drive. They spent a fair bit of time at the second location. He didn’t think Ms Daley got out of the vehicle until they returned to the beach, when she and Attwater went and had “a bit of a swim”. Then Attwater asked for help.
While they had been swimming, Maris had “grabbed the mattress out ‘cause it stunk” and burnt it and some rubbish using diesel. After he had burnt it he had put sand on it. He later said that the process of burning the mattress and other detritus had taken “a while” as:

“I pulled it out and got all that out, I had to pull the bonnet up and pull the hose off […] and stick the Coke bottle in there and I walked around that side of the car, pumped a bit of diesel in the thing, burnt it, it started burning for well not that long but it burnt and then got the shovel out and threw a bit of sand over the thing […] There was no way I was going to sleep on the thing again. I didn’t burn it for any other reason, no”.

As to his observations of blood, Maris said that he had seen some blood when Ms Daley sat on an esky, some blood on her leg, and there had been blood on the mattress. He thought she “had her normal periods”.
At the point when she and Attwater had gone for a swim on the morning of 27 January 2011, Maris thought Ms Daley was “a bit like she was pilled out”, although he had not seen her taking any pills. She had had medication with her, although Maris could not say where it was.
A second interview was conducted with Maris shortly after the first concluded, so that Maris could point out the various locations to D/S Burke.
When asked about Ms Daley’s clothes Maris said that he “might have seen a bra on the mattress” when he pulled it from the car to burn it, but did not know what had happened to the black tracksuit pants and t-shirt that she had been wearing. It was possible that the bra had been tangled up with the mattress and burnt.
He said that they had spent the majority of their time at the first spot [Site 1], before leaving and going to Black Rock [Site 2]. He thought Ms Daley had travelled in the front of the car, and that she was wearing pants.
During the course of the interviews, Maris asked if he could go to the hospital and get something to calm him down.

Maris Is Admitted to Hospital

Susan Newbown, a social worker with the Acute Care Mental Health Service at Coffs Harbour Base Hospital in 2011, saw Maris at the Hospital at 8.45pm on 27 January 2011 when he was admitted as a patient at risk of self-harm. She completed an assessment of him, documenting what he told her on admission. Her note read:

“Yesterday (Australia Day) went to Iluka and mate and ex-girlfriend Lynette Daley. They were drinking. Mate had sex with her. She had blood on her (? periods). Mate took her into sea and she stopped breathing. Ex-girlfriend has died today. Lot of blood. Paul rang triple 0 – ambulance and police. Paul said he burned a mattress they had been lying on. Paul had drunk two bottles whiskey yesterday. Big night before”.

Crime Scene Evidence

An expert Crime Scene Officer, S/C Gary Kennedy, arrived at Ten Mile Beach at 9.50am, and began to record the area. He took numerous photographs, many of which were in evidence at trial. Some photographs showed bloodstaining on Ms Daley’s legs and buttocks; others showed the large blood clot on the sand, and drag marks leading from the water to Ms Daley’s heels.
He also saw and documented a mound of sand mixed with burnt material under the rear driver’s side wheel of the troop carrier, and an esky in the rear of the troop carrier that was smeared with blood. Some mats, a piece of carpet, and a tool box in the rear of the troop carrier showed blood staining. Blood stains in the back and front of the troop carrier, including a bloody fingerprint deposited by Attwater, were revealed by the application of Luminol.
The officer collected the burnt debris from the fire bed, including a mattress cover or bed sheet, pieces of foam, and pieces from a bra; all of which returned a positive result on a presumptive test for blood. He also collected every piece of clothing from in and around the troop carrier; no set of tracksuit pants was found, and nor was the t-shirt Ms Daley had worn recovered.
Another Crime Scene Officer, Leading S/C Mark Griffiths, an expert in blood stain pattern analysis, examined the photographs taken at the scene by S/C Kennedy, together with other documentary material. He noted that there were a number of blood stains within the troop carrier, and on items inside the troop carrier. He observed blood swipe patterns, blood transfer patterns, and other blood staining. A swipe pattern on the floor of the troop carrier was consistent with blood having soaked through the mattress that was removed from that location. Many of the stains had an irregular appearance, as if they had “been wiped over or something has happened to those bloodstains”. Others were “altered bloodstains” which were faint, having likely been “diluted or altered in some way, wiped off et cetera”. LS/C Griffiths thought that there would have been “a lot more blood where those altered bloodstains were”.
A “flow pattern” on the rear of an esky at the back of the troop carrier was likely to have been deposited by a bleeding Ms Daley sitting on it. There were also “passive bloodstains” meaning those which had dripped from the source of blood and been acted upon by gravity, dripping down and pooling.
The blood was that of Ms Daley.
An expert forensic biologist, Virginia Friedman, told the jury that a piece of foam that she had examined [that was recovered by police from the fire pit] smelt strongly of petrol or diesel. It had a blood stain on it, but the stain could not be DNA tested because of the damage done to the blood by the diesel.
D/S Burke, having inspected the three sites on 27 January 2011, returned to the scene on 30 January 2011. On that day he found the butt of a “rollie” or hand-rolled cigarette in some dunes about 2 metres from some tyre marks left by the troop carrier, at a location near Site 1. Later forensic examination recovered Ms Daley’s DNA from it.
The detective also made inquiries about tides at Ten Mile Beach, discovering that high tide on the morning of 27 January 2011 was at 2.15 + 1 hour for daylight savings, and reached a height of 1.38 metres. Low tide was at 8.33am + 1 hour for daylight savings, at a height of 0.54 metres. At around 5.30 that morning the tide was going out.
A search of the troop carrier and the beach conducted on 27 January 2011 failed to find the tracksuit pants or t-shirt that witnesses had seen Ms Daley wearing on Australia Day, and to which both Maris and Attwater had referred in their interviews with D/S Burke. The water was low and very clear and no object was seen out in the water, although searching officers scanned the water constantly looking for any clothing. The only item of clothing of Ms Daley’s which was found was the remains of a burnt bra.

Other Accounts of Events- Attwater

On 29 January 2011 Gail Norman, a friend of both Ms Daley and Attwater saw Attwater in Maclean. Having heard that Ms Daley had died, she spoke to Attwater, asking him what happened. She told the jury:

“[…] Adrian said, ‘We were drunk’ […] That he was fist fucking her and that there was a little bit of blood. And I asked him did Norma have her period at the time and he said, ‘No, two weeks before’. […] We went for a swim to get rid of the blood in the morning. She fitted out. We dragged her back in and we tried to resuscitate her for 55 minutes until the fellows […] came”.

Ms Norman also reported Attwater as saying:

“while he was fist-fucking Norma, Norma was giving Paul a head job”.

She told another friend about the conversation about three weeks later.
Ms Norman had been with Ms Daley on occasion when she was drinking and had seen her drunk. She described her as a “loving drunk” who, when drunk, slurred her speech and swayed when walking.

Later Interviews with the Applicants

On 3 March 2011, D/S Burke arranged to meet Attwater and Maris at Ten Mile Beach. Each was interviewed separately from the other at that location.

Attwater’s Interview of 3 March 2011

Attwater’s conversation with D/S Burke at the location was recorded audio-visually. Attwater said that he had been drinking as Maris drove the troop carrier up and down the beach. At Site 1, where the troop carrier had stopped for a time, and where the sexual act occurred, he had continued to drink:

“I suppose it was getting dark. […] Paul and myself and Lynette were in the back of the car. Paul was in the front, like that bit there, and Norma was giving him a head job and I was playing with her vagina and we had a few more drinks and we've gone back down there and we've, we've made a new tracks […] to that, to that park up there and we [the applicants] we were up all night when we were down there.”

Ms Daley had been in the back of the vehicle and, early on the morning of 27 January 2011:

“We’ve come up there and then Lynette and myself went for a swim down, down further at the beach down there. We stripped off and we went for a swim in the water and Lynette’s had, I dunno, like, a, some kind of, I dunno, seizure or fit or something, I’m not quite sure. […] And I’ve yelled out to Paul, ‘Help me, she’s not breathing’. We’ve pulled her in on the beach and I’ve commenced mouth to mouth resuscitation. […] Paul went on the phone to ring up the ambulance.”

Giving more detail of the sexual activity, Attwater said that he was not sure if it was dark but remembered being in the back of the four wheel drive with Ms Daley and Maris. He said Ms Daley was “giving Paul, suckin’ on his penis,” while Attwater was “playing with her vagina, with my four fingers.” Asked how the three had come to be engaged in the sexual activity, Attwater said:

“I dunno, Norma, Norma's Norma, like we say, ‘Come on jump in here’, and she will, you know what I mean. I was kind of goin' out with her at the time […] and I really don't know how it came about. We, we were just, we were in there, we were just in there. I dunno what we, what I said or anything to her or”.

He said it was the three of them that started the sex act, all at the same time. They had been drinking, and he and Maris had let the vehicle’s tyres down to drive over some dunes to make a new track. The three of them “ended up in the back” of the vehicle. He continued:

“I jumped in there. Paul was at the front, I come, Norma was in the middle and I was at the back and as I said Paul was gettin' a head job and I was playing with Norma's vagina. I had my fingers in her vagina”.

The applicant said Ms Daley had been on “her fours”, whilst Maris was in the middle and he was behind Ms Daley, laying on his side. He explained:

“I was, I was fingerin’ Lynette, just playing there. I dunno, it wasn’t all that long I don’t think. […] I was playing, I was playing with her vagina like that and I put another finger in there and I put another one in there and I was just playing with her vagina and then she was sucking Paul”.

As that account was given Attwater demonstrated with his hand held sideways to the ground, thumb extended upwards, with two, three and then four fingers extended horizontally. He denied that any other part of his hand, fist, or forearm entered Ms Daley’s vagina, saying:

“It was only my hand, my knuckle like that [indicating to the metacarpal knuckles and the vicinity of the base of the thumb] and I was playing with her, I had my knuckles in there, like that.”

He said that Ms Daley was having oral sex with Maris as he performed that act. As to whether Ms Daley consented to these acts Attwater answered a number of questions from D/S Burke:

“AA: --- Lynette was, she was quite all right with what we were doing, she didn't say, Stop it, Don't do this, or anything like that. She was, she was all right with it that's what she was doing.
GB: OK. How do you know that she was all right with what was happening?
AA: She would've said so. She would've said, you know, Stop that, or you know, she would've said, she would've said somethin' to us.
GB: Mmmhmm.
AA: She would've said somethin'.
GB: Did she say anything to either yourself or Paul that indicated to you that she wanted that to happen though?
AA: Well, well she didn't say, Don't do that, and as I said, I was goin' out with her, I used to have sex with her, I used to have sex with her and I used to play with her pussy and that, her vagina, I used to play with her vagina and that ---
GB: Yes.
AA: -- and it's, it wasn't anything unusual, you know what I mean, it wasn't anything unusual what, what went on, that's, that's how I have, she, she made things”

He said that he stopped because he had blood on his hand. Although Ms Daley was “quite all right, she was all right”, he told Ms Daley “there’s a bit of blood here” and he stopped. Of Ms Daley he said:

“She was, she was all right, she didn't carry on or anything, she's, she's said she was all right. She said she was all right. She said, ‘Don't worry, it's all right’. If she, if she'd needed help or anything we could've rang up someone, we could've drove her somewhere. If, if she, if she needed any help or anything we would've taken her somewhere, you know what, like, we're not bad people, me and Paul. If she was hurt or anything we would've tried to help her out, we would've taken her somewhere to, to help her you know. That's what I'm saying, I'm ---”

He said that the three of them had gotten out of the troop carrier and continued to drink. Ms Daley did not have any clothes on when she got out of the car, but put a pair of tracksuit pants on after that. She was thereafter drinking with Attwater and Maris until the three of them got into the front of the troop carrier and drove down the beach, drinking, and making tracks in the sand dunes.
He denied that he had “fisted” Ms Daley, as his hand had only entered her vagina to about a depth level with the base of the thumb. She had said nothing to suggest that she was injured and there were “no worries” during the night when they stayed on the beach, or when they went swimming at 5.30 the following morning. Attwater said that he had not observed Ms Daley to be bleeding, and the only blood he saw was a little bit of blood on the mattress, and the blood he had earlier referred to on his hand. She had told him when he questioned her about the blood, “That’s right, don’t worry about it, I’m fine”.
Afterwards, Attwater said Ms Daley was “talking, drinking, yeah, laughing, listening to music. She was all the way up the beach.” He said that Ms Daley sat in the front between him and Maris having “come round from the back door” and “jumped in”; she was wearing “a shirt and trakkies”.
She was “quite all right all, all day, all night mate, eh”.
Having left Black Rock the vehicle was driven to Site 3 where they stopped. Attwater said:

“[..] me and Norma got out of the car […] we proceeded down the beach here, we’ve stripped off naked […] and then went for a swim in there. We were in the water for, I dunno, it wasn’t all that long, and she’s had, like, a seizure or something like that. And I’ve tried to drag her out of the water. She wasn’t breathing at this time and I’ve, and I’ve said to Paul, ‘Help me, Norma’s not breathing’”.

Attwater said that, when he and Ms Daley removed their clothing before entering the water he noticed “a bit of blood on her”, “like, a stain”.
He had asked her to come for a swim and she had said, “Yeah, I’m comin’ for a swim”. They had walked down to the water and were in the water for a couple of minutes. She had seemed “a little bit intoxicated” but knew what she was doing and was aware of her surroundings. Attwater later told D/S Burke that he and Ms Daley had been in the water for about five minutes before she had the fit, which was over very quickly, and left Ms Daley not breathing.
After she had the seizure and Maris had fetched Mr Miller to help them, Mr Miller pointed out a significant blood clot at Ms Daley’s feet towards the water. Before that, Attwater had not noticed the blood clot, or any other blood around Ms Daley’s vagina or legs. He said he had been naked when “the other bloke and that came down here”. He put his pants on at some point after Mr Miller and two others had come to help, but before the ambulance arrived. He could not say what had happened to Ms Daley’s clothes.

Maris’ Interview of 3 March 2011

Maris told police that:

“We came up here to go fishin'. We stopped here, we were drinking, listening to music. Adrian had a little bit of sex with Norma. I took a little bit of part in that, but only for a couple of minutes and didn't really join in, and that was about that from here. We all went down for a quick swim and I think, at that, I think this was the spot I seen just before we were leaving, I think Adrian, I don't know whether I said that before, I seen him, like, because when Lynette jumped out she sat on the Esky to get out the back and put blood all over the Esky and I think, yeah, before we were leaving, I seen Adrian wipe it with something, but I'm not sure whether he used my shirt, his shirt or what he used, because I was sittin' in the front seat then”.

Asked for more detail of that event, the applicant said:

“Well, I think we just all sat around drinking and listening to music. Lynette was in the back, I was in the passenger seat, I was in the driver's seat. At some stage through there, I remember, I broke the glove box off because it was breakin', and just chucked it out somewhere, I don't know where. Then at some stage I noticed Adrian and Lynette, they were havin' sex. And after a while, I think by that time I was back around the driver's seat. They asked if I wanted to join in, and a little later I just jumped in the back, took my shorts off. I was sitting behind the driver's seat, right up close to the driver's seat, and Lynette gave me oral for about two minutes, three minutes. I couldn't perform, so I ended up jumpin' back into the front and just listenin' to music, put my clothes on, and at that stage I'd noticed there was blood. So I thought Lynette had her periods. And she jumped out the back and Adrian jumped out the back and then, like, I noticed blood all on top of me white Esky. Then we all went down to the water, had a, had a bit of a clean-up down there and came back. And I'm not sure how long we stayed after that, whether we drank more there. I think Lynette jumped back in the back. I'm not sure whether she got dressed again or not, and, I'm just trying to think of anything else. At some stage when we were leavin', I noticed Adrian wipin' the Esky, but I'm not sure what he was wipin' it with, yeah”.

Maris said that he had noticed Attwater and Ms Daley having sex and “noticed Adrian fistin' her”. The conversation continued:

“GB: How was he doing that?
PM: Well he was sort of behind her and, yeah, just using his hand.
GB: What made you think he was fisting her?
PM: Oh well, it just looked like it from where I was, yeah. By that time I was in the driver's side, but, yeah. (MFI 36, p 8-9)
GB: And what did you see Adrian doing?
PM: Well just, yeah, just, just fisting Norma. And she was sort of on her knees, sort of with her, with, with her legs apart a bit and hands up near the front passenger seat.
GB: And what position was Adrian in when that was happening?
PM: Well I think he was sort of behind her, yeah.
GB: And what action was it that you saw that made you believe that he was fisting her?
PM: Umm.
GB: Even if you have to demonstrate it, Paul.
PM: Well, it just looked like the way she was movin' and the way his arm was movin', yeah.
GB: And what way was his arm moving?
PM: Sort of just in, in and out.”

He demonstrated a movement of his right hand, clenched into a fist, moving backwards and forwards parallel to the ground.
Maris did not see Ms Daley’s face but “she wasn’t objecting to it or anything like that. She was sort of happy to participate”. He knew she was happy to participate because, otherwise:

“Well she would've been sayin' if she wasn't, she, she wasn't tellin' Adrian to stop, or anything like that.”

Maris heard her moaning and thought that meant she was enjoying the act. At some stage Attwater asked him to join in and he jumped over into the back of the vehicle and took his shorts off. It was at about that stage that he noticed the blood and thought Ms Daley had her periods.
Although Ms Daley had not asked him to join in she had not objected, and “moved over to give me oral”.
Not long after he had gotten back into the front Attwater stopped, and they all got out of the vehicle and all of them went down to the water for a swim.
Maris said that he saw blood on the esky after Ms Daley had gotten out of the car, and had seen blood running down her leg after removing his penis from her mouth and moving to get back into the front of the vehicle. It was “sort of smeared” on her leg, but was enough to notice.
They all went swimming, mainly so that Attwater and Ms Daley could clean up. Ms Daley had a little bit of blood on her legs; Maris did not notice any blood on Attwater. It was dusk at the time. Other evidence established that sunset on Australia Day was at 7.50pm, whilst second twilight was at 8.16pm. Ms Daley was “still intoxicated” when they went for a swim; she had been drinking since about 7 o’clock that morning. She was not dressed when she went swimming.
On returning from the swim, Ms Daley got into the back of the vehicle and remained there, sleeping it off Maris thought. He and Attwater continued drinking until later, when they drove to the next parking spot [Site 2]. Maris thought Ms Daley remained in the back during the drive. He did not think she had dressed.
At the second site, Maris and Attwater were walking about looking for the best way out. They were there for a fair while. When they decided to return to the beach, at a time when it wasn’t “far off daylight”, Ms Daley got back into the front of the troop carrier, although Maris was not sure if she got in the front by herself or if Attwater put her in the front. He did not think Ms Daley was wearing any clothes. She was “still groggy” and “quiet”. He did not notice any blood on her. When in the front of the car as they drove to the beach, Maris thought Ms Daley was awake, as she was sitting upright and not falling onto him.
When they got to the beach [Site 3] he decided to burn the mattress. He went to the back of the car, pulled the mattress and whatever was on it out, and then went to the bonnet to get some diesel. He set fire to the mattress. After it had “shrivelled down” he got the shovel and put some sand on the pyre. He then heard Attwater “sing out to help him, he said, ‘Help me get Lynette out’, something like that, ‘She’s not breathin’’”.
When the mattress was burning, Maris said he noticed Ms Daley’s bra. He burnt it because “it had blood on it and I didn’t think she’d want it”. He denied having burnt the mattress to conceal something.

Medical Evidence – Mechanism and Cause of Death

Dr Cala – Post Mortem of Ms Daley

Dr Alan Cala is a senior forensic pathologist with extensive experience in the conduct of autopsies, including in scenes of international conflict and disaster. He has conducted well over 5000 such examinations in New South Wales alone. He conducted an autopsy on the body of Lynette Daley on 29 January 2011 [or 28 January, both dates being given in evidence] and gave the cause of her death as blunt force injury to the genitals. The injuries led to rapid and significant blood loss, which in turn led to hypovolemic shock; death followed. Ms Daley had “pale” internal organs, consistent with significant blood loss.
On post mortem examination, Dr Cala noted a quantity of blood in the front of the vagina (of about the size of a saucer), around the front and back of the top of the thighs, in the pubic hair, and around the buttocks. There was also a large amount of clotted or congealed blood in the pelvis and vagina. There were bruises consistent with “fingertip bruising” found on the inner aspect of the upper thighs.
The doctor removed the entire pelvic bowl and examined it, finding bruising in the muscle and fatty tissue within the deeper parts of the pelvis, with further bruising between the positions of 9 o’clock and 2 o’clock in the vagina, and to the left of the clitoris. He found two lacerations. The first was of 100 millimetres in length (minus a few millimetres extended during resection), from fourchette to cervix, including a 45 millimetre external laceration from clitoris to vagina; that is, the injury tracked from the fourchette or clitoral area, to the vaginal entry, and then into the vagina for 55 millimetres. The second laceration was 120 millimetres in length, and jagged in appearance with clotted blood at its base. The presence of clotted blood indicated that Ms Daley had survived the injury for a time, during which her body had attempted to stop the bleeding. The second laceration was deep, and would have led to immediate and significant blood loss. There was an amount of bruising “deep to the lacerations”, which were a reflection of trauma.
Under microscopic examination sections of the tear near to the clitoris showed extensive acute haemorrhage, and inflammatory cells - neutrophils and lymphocytes - had travelled to the area, also pointing to survival for a period after injury. It was not possible to estimate a time of death. That Ms Daley remained alive at 6am on 27 January 2011 was, in Dr Cala’s opinion, highly unlikely, although he could not say it was impossible.
Dr Cala also cited alcohol intoxication as a “significant condition” because it was a factor in Ms Daley’s death. The doctor deposed in evidence that Ms Daley’s blood alcohol level (measured from femoral blood taken at autopsy) was around 0.303 grams over 100 millilitres, or 6 times the legal driving limit for alcohol, which would have had an effect on coordination, and judgment particularly. Dr Cala said that, even as a regular consumer of alcohol, Ms Daley’s perception of pain and of the amount of blood she had lost would have been impaired by her level of intoxication.
Ms Daley also had methylamphetamine in her system, at a level of 0.05 milligrams per litre of blood.
Dr Cala was shown the recording of Attwater demonstrating, in his interview of 3 March 2011, the motions he said he made when inserting four of his fingers into Ms Daley’s vagina. The motion was described by the Crown Prosecutor as “fish-tailing”. The following evidence was given:

“Q. In that part of the recorded interview you saw Mr Attwater demonstrated on several occasions the movement of fingers in what’s called a fishtailing movement?
A. Yes.
Q. The first couple of times he did it was a more slight movement. I think one of the times he did it was a more vigorous larger or wider movement is that correct?
A. Yes.
Q. I’ll separate the two between the slighter movement and the more vigorous movement?
A. Yes.
Q. First could the slighter movement of the fingers in a fishtailing motion demonstrated by Mr Attwater have caused the lacerations and the vagina bruising of Ms Daley as shown in those photographs?
A. It might have caused the laceration at the front of the vagina.
Q. What about the internal lacerations and the bruising?
A. I think just several fingers of the hand even moving in and out of the vagina or around and around would not cause the laceration to the left side wall of the vagina.
Q. Do you mean by that that’s the 12 centimetre laceration?
A. Yes.
Q. Why do you say that?
HER HONOUR
Q. Did you say could not doctor, could not?
A. Yes could not in my opinion, could not. Because the vagina is quite distensible up to a--
CROWN PROSECUTOR
Q. Meaning?
A. Expandable up to a point and adult, two to three adult fingers even could be inserted into the vagina and I don’t think cause the laceration to the left side of the vaginal wall. If they’re inserted forcibly and rapidly, particularly to the front, they might then have caused those injuries to the front wall of the vagina.
Q. When you say the front wall by reference to image 14 or 15 or 16 what are you referring to?
A. I’m referring to the injury that I circled extending from just below the clitoris going downwards along the front part of the vagina.”

Even the more vigorous part of the demonstration given by Attwater, in which he moved his hand with a displacement of about 10 centimetres, could not have caused the whole of the first laceration, or any of the second laceration. Dr Cala explained his opinion:

“[…] I think the insertion of four fingers, even up to the region of the knuckles, would not create sufficient force to create the injuries that I saw, particularly the one to the left side of the vaginal wall.”

Although the doctor thought it was possible the hand movement could account for the external part of the first laceration, Dr Cala did not believe it could account for the internal portion of it. He said that was:

“For similar reason, that I don’t believe that enough force using that method that I just saw would be sufficient to generate forces that tore the lining of the vagina.”

The insertion of a fist, moved in and out for about two minutes, could cause the second laceration and the bruises connected with it:

“Because having made a fist the volume of the fist is much larger than just the fingers and the forward half, say, of a hand. Forming a fist is incorporating the fingers of the hand, which of course have bones so they’re hard, and to flex the fingers including the thumb creates a spherical type of object that in my opinion would be sufficient size, and if inserted, in the way you’ve described, in my opinion could cause those injuries.”

It could also have caused the first laceration.
It was more likely that the injuries were caused by the repeated insertion of a fist into the vagina. The force required to cause the injuries was at least moderate; light force would not have been sufficient to tear the lining of the vagina. Asked about the most likely mechanism of injury for the first laceration Dr Cala said:

“It’s being the introduction into the vagina of an object such as a fist that has been rapidly introduced that could’ve been inserted a number of times quite forcibly that has then resulted in tearing of the vaginal lining in laceration 1.”

The same was true of the second laceration, with the insertion of a fist most likely to have injured Ms Daley, rather than an open hand.
Dr Cala said that, if the injuries were inflicted at 8 or 9pm on 26 January 2011 Ms Daley would not have been alive at 5.30 the following morning. As to the account of Ms Daley having a seizure whilst swimming, the following evidence was given:

“Q. Just want you to assume this account by Mr Attwater when Ms Daley’s in the ocean at 6am on 27 January or 5.30am sorry. He observes her shaking a bit and suddenly going limp. Is that, can you say whether that description is a description of someone suffering from a seizure?
A. No, it’s not a convincing description of someone suffering a seizure.
Q. In your opinion, what is your opinion about seizure as a cause of death in this case?
A. I don't believe that seizure has caused this woman’s death. Seizure as a cause of death is a diagnosis of exclusion in someone who has a history of epilepsy or seizure activity and when I say a diagnosis of exclusion, if there are other factors at play that could be described as being causative or contributory to the death, then seizures could be reasonably excluded.”

Whilst Dr Cala agreed that a person in hypovolemic shock could be affected in a way that might lead a lay observer to conclude that a seizure was occurring, the doctor excluded a seizure as a feature contributing to Ms Daley’s death. Further, there was no sign of water in the stomach or airways, and no evidence to support saltwater drowning.
The area of the body on which Dr Cala observed the significant lacerations and bruising was an area with “pain fibres” and injury would lead to pain. The blood loss was in the order of 2 litres, when Ms Daley’s estimated total volume of blood was about 4.5 litres. After the blood loss had commenced Dr Cala said that:

“She’d feel dizzy, she might feel nauseated. In other words she might want to feel like vomiting. If she sat up or attempted to stand up she would feel dizzy and probably be required to lie down. She might look sweaty and might appear pale in comparison to how she normally looked.”

Her ability to walk would have been “restricted” such that she could not have walked normally, and she may have felt short of breath. The signs would have been noticeable to an observer and, in particular, the “rapid blood loss pallor”, coupled with cold and clammy skin, would have been plain.
The following evidence was given:

“Q. I just want to put this hypothesis to you of these set of assumptions and ask you a question about it; so assume that Ms Daley had suffered these injuries, or had sexual intercourse at dusk, say 8 to 9pm, and suffered from significant and rapid blood loss and she had not received any treatment, and assume after that that for a short period of time she continued to drink and associate with Mr Attwood and Mr Maris, and then after that she went to sleep in the back of the Troop carrier for 5 some hours, then assume that at about 5.30 the next morning she woke up, got out of the Troop carrier, walked down to the ocean, swam by herself and then after a few minutes, five minutes in the water, she stopped breathing; in your opinion is that a likely scenario?
A. No.
Q. What’s the degree of unlikelihood of it?
A. It’s extremely unlikely.
Q. Why do you say that?
A. I don’t believe that she’d be capable of walking down to the water and having a swim by herself at that time that you’ve indicated with the injuries that I observed.
Q. I’ll put another hypothesis scenario with just some slight differences, or with some differences, but I’ll set them all out again. Assuming that she had sexual intercourse at around dusk, 8 to 9pm, and suffered those vaginal lacerations and bruising with significant and rapid blood loss, that she did not receive treatment. Assume immediately after that, after the sexual intercourse she went for a swim down in the ocean; just pause it there. In your opinion is that a likely scenario?
A. Yes.
Q. Assume then that she went to sleep, after the swim she went to sleep in the Troop carrier for a number of hours, and she woke up at around 5.30am, got out of the - sorry, went to the front or was put in the front of the Troop carrier, was driven a short distance down to the ocean, then got out of the Troop carrier, walked to the ocean and swam by herself and stopped breathing within a few minutes; is that a likely scenario?
A. No.
Q. And what’s the degree of unlikelihood?
A. Highly unlikely.
Q. And what’s the reason for that?
A. Similar to the first answer.
Q. Now assuming that she had suffered those significant bleeding and bruising as a result of those vaginal injuries, in your opinion was surgical intervention necessary to save her life?
A. Yes.”

Associate Professor Bland

Associate Professor Dr Peter Bland is a specialist obstetrician and gynaecologist with over 30 years’ experience. He examined a considerable volume of material relating to the injuries occasioned to Ms Daley, and the various descriptions of her conduct when she was injured and subsequently. He drew diagrams of the vaginal injuries, being two lacerations where the tissue of the vagina had split or torn. Dr Bland told the jury that the genital region was an area sensitive to pain, with the clitoris and external female genitalia being particularly sensitive, but the vaginal canal less so. Intoxication dulls the reaction to pain.
The doctor was shown a portion of Attwater’s interview of 3 March 2011 in which he described penetrating Ms Daley’s vagina with four fingers in a “fishtailing movement”. He said that, if the action had been carried out “very vigorously” it could have caused the two vaginal lacerations sustained by Ms Daley. However, he thought it more likely that the injuries were caused by the insertion of a fist and a movement in and out over about 2 minutes. That was:

“Because - the injury occurs because the vagina is being asked to accept a larger structure than it is able to accommodate. It won't fit in. And the fist is a larger object than the "fish-tailing" hand and the fist would need to distend as a ball more - so, the fist would need to distend the lower vagina also more than a "fish-tailing" hand. The hand would insert quite easily, if we could demonstrate into the vagina, whereas as fist doesn't insert as easily. So that would account for the splitting of the vagina at the entrance, which we have seen on the photographs, far more with the fist than with the hand.
The other aspect in terms of splitting, in terms of the fist, it can have a pumping action, whereby we can get air above the fist, inside the vagina, similar to a bike pump, so there is compressed air at the top of the vagina and that this would add to the distension, the blowing up of the vagina, as a result of being pushed in.”

Dr Bland thought it extremely unlikely that Attwater’s fingernails had caused the lacerations because his nails were quite short, did not protrude past the fingertips, and because the skin of the vagina “is actually quite tough skin”. For the injuries to be caused by the insertion of a fist, moderate to severe force would have had to have been used. If the injuries were occasioned by four fingers “fishtailing” into the vagina, an even greater degree of force would have been required, described by the doctor as severe force.
Although Dr Bland had seen many vaginal lacerations in his long career, he had never seen injuries of the size and magnitude of those of Ms Daley. Nor had he ever seen vaginal bruising of the magnitude of that suffered by Ms Daley. The doctor considered there would have been rapid and significant blood loss. He deposed:

“[…] I believe it would have bled rapidly because the blood supply to the vagina is one of the better supplied areas of the body. Some areas receive good strong bloods or plentiful blood supply, others receive less blood supply but the genital tract tends to receive a lot of blood and during sexual activity both for male and female the genitals have extra blood supply so that they’re in a state of stimulation which would have extra blood supply so that there is plenty of blood going to the genital tract and then if the lacerations are large then the areas where that blood supply can now be leaked is large. So we’d have this high blood supply and large lacerations, that combination should produce fast blood loss.”

He thought injuries of that nature could cause death from loss of blood in under an hour, although, if the rate of blood loss was slower, death could come some hours after injury. Dr Bland thought it was unlikely, or not reasonably possible that, if the injuries had been inflicted at twilight, Ms Daley could have been alive at 5.30 or 6 o’clock the following morning.
Blood loss causes a selection of symptoms, including nausea, light headedness, dizziness, confusion, and agitation. Ms Daley may have appeared agitated, confused, and sweaty to observers, and she would have found it difficult to walk upright on her feet.
Dr Bland was asked to comment on the likelihood of the account given by Attwater to police, that is: Ms Daley getting up on the morning of 27 January 2011 and walking down to the water to swim, and her breathing stopping; with a background of sexual intercourse having occurred at around 8 or 9pm on 26 January 2011; with injury and blood loss caused through the insertion of a hand or fist into her vagina; followed by some hours of sleep. He thought it “most unlikely”. As to the degree of unlikelihood, Dr Bland thought that it was “extremely unlikely”.
The doctor was also asked to comment on the scenario given to police by Maris, whereby sexual intercourse occurred and injury was occasioned, followed by Ms Daley swimming in the ocean; returning to the back of the troop carrier; climbing in and sleeping for some hours; moving to the front of the troop carrier; driving as passenger to another location; getting out of the troop carrier and walking to the water and swimming. He thought that scenario was “extremely unlikely”.
When asked about the process of blood clotting, Dr Bland said:

“A clot of blood is the end point of the body’s way of stopping itself from bleeding so it’s a biochemical reaction which occurs in the blood to stick together parts of the blood, all the little cells, and make it into a solid mass with the intention of blocking up the hole in the blood vessel.”

Dr Bland told the jury:

“I believe it will have formed in the vagina, in the space of the vagina, as a result of the blood coming from the cut edges of the laceration and that the blood line there has then coagulated or clotted and sat in the vagina.”

It would be more likely that the blood would clot inside the vagina if Ms Daley had been lying down. It would most likely have been dislodged by movement of her body, such as being moved into a vertical position.
Ms Daley’s injuries were such that only timely surgical intervention would have saved her life.
Dr Bland said that it was possible for a fist to be inserted into a vagina without causing injury, depending on a number of variables, such as positions, speed of insertion, the firmness or otherwise of the vaginal tissue, and the size of the vagina. The fact that Ms Daley had borne seven children would have had no impact upon her sensitivity to genital and vaginal pain.

Dr Lincoln

Dr Catherine Lincoln is a forensic medical officer and Deputy Director of the Clinical Forensic Medicine Unit on the Gold Coast in Queensland, with a background in sexual assault forensic medicine. She holds a PhD in forensic medicine, among other qualifications.
Dr Lincoln was shown the recording of the account given to police by Attwater on 3 March 2011, specifically the same demonstration of digital intercourse as Dr Cala and Dr Bland saw. She too thought it “unlikely” that the motion demonstrated by Attwater could have inflicted the injuries seen at post mortem on Ms Daley. The movement would have had to “be more vigorous and rougher”. Dr Lincoln thought that a “very vigorous insertion of a fist could have caused both lacerations at once [...] in the same penetration”.
Dr Lincoln was of the view that there would have been significant and rapid loss of blood on injury, as:

“[…] there is a very dense, complex network of veins and smaller arteries but blood vessels essentially around the vaginal canal and that is common to the whole - to genitalia in men and women and that’s about sexual functions, so yes, when there’s an injury of this nature, those blood vessels will be torn and will be bleeding immediately and quite profusely.”

The Crown submitted that moderate weight had been given to the issue of delay. The Crown submitted that it was appropriate for the sentence imposed to account for specific deterrence given Attwater’s lack of insight into his offending at the time of sentence. The Crown submitted that questions of accumulation were discretionary and that there needed to be a modest degree of accumulation between counts 1 and 2.

Determination

Her Honour imposed an aggregate sentence on Attwater of 19 years commencing 5 September 2017 and expiring 4 September 2036 with a non-parole period of 14 years and three months expiring 4 December 2031. The indicative sentences were 18 years for manslaughter, and 12 years with a non-parole period of nine years for the aggravated sexual assault.
The overall effect of the sentence is that there was an accumulation of one year in respect of the aggravated sexual assault. Although complaint is made about this, it cannot be seen as unreasonable. Counsel for Attwater expressly accepted, in response to an enquiry from the sentencing judge, that a limited degree of accumulation was appropriate to take account of the aggravating factor that the sexual offence was committed in company. The sentence for the sexual offending was otherwise comprehended by the sentence for the manslaughter: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.
The sentencing judge said at [113]:

The objective seriousness of the manslaughter offence is, on any view, an example of manslaughter by an unlawful and dangerous act in the upper end of the range of seriousness for manslaughter committed in that way.

There was no challenge to that significant finding, and it may be noted that counsel for Attwater at the sentence proceedings accepted that it would fall at the upper end of the midrange.

The issue of delay was dealt with at considerable length by the sentencing judge, and she ultimately concluded that delay was a factor to be reflected in the sentence to a moderate degree.
Nor was it wrong for the sentencing judge to consider that specific deterrence was a relevant consideration. First, the applicant Attwater had committed other offences in Queensland after he moved there following the abuse he received after the deceased’s death became known. Secondly, her Honour discussed and considered those portions of Ms Hare’s report which pointed to a lack of insight by Attwater into his attitudes towards sexual relations with women. Thirdly, Ms Hare’s assessment using the Static-99R was that the applicant was within the average risk for being charged with a further sexual offence. That was said to mean that he was “typical of offenders in the middle of the risk distribution”, and that such offenders have criminogenic needs in several areas, and require “meaningful investments in structured programming to decrease their recidivism risk”.
Her Honour further found that Attwater’s prospects of rehabilitation were guarded, and that he lacked remorse.
The maximum penalty for manslaughter is 25 years’ imprisonment. The offence committed by Attwater was found to be in the upper range of seriousness. There was little else to mitigate the sentence apart from delay. While an indicative sentence of 18 years was a stern one, it cannot be said, in all the circumstances, to be outside the range of appropriate sentences, nor to be plainly unreasonable or unjust. An additional 12 months to take account of the circumstances of the sexual offending cannot be regarded as outside the range of appropriate accumulation. So much was accepted by senior counsel for Attwater at the hearing of the appeal.
We reject this ground.

Ground 4 (Maris): The aggregate sentence imposed on the appellant was manifestly excessive

The aggregate sentence imposed upon the applicant Maris was a sentence of nine years with a non-parole period of six years and nine months. The indicative sentences were eight years with a non-parole period of six years for the sexual assault, and four years for the hindering offence.
The applicant Maris submitted that he stood to be sentenced on the factual basis that he had introduced his flaccid penis into Ms Daley’s mouth for a brief period. There was nothing to suggest that he had caused her any physical harm. Senior counsel drew attention to her Honour’s finding that Maris’ offending was less objectively serious than both Attwater’s sexual offending and other offending on a notional spectrum of offending against s 61J of the Crimes Act.
Maris submitted that a consideration of the cases for offences against s 61J ordinarily involved actual threatened use of violence, with or without weapons, against the complainant. He submitted that cases where there was no actual threatened use of violence have been regarded as towards the lower end of objective gravity. Reliance was placed on R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 455; (2002) 129 A Crim R 242 and Perrin v R [2006] NSWCCA 64 to submit that the indicative sentence for the sexual assault was outside the range of available sentences.
In relation to the offence of hindering, the applicant Maris submitted that the investigation found to have been hindered was not the wrongful death investigation because it was him who telephoned emergency services and stayed with Ms Daley’s body and made attempts over a long period to revive her.
Maris submitted that the indicative sentence of four years was outside the range available, particularly having regard to other cases including R v Smith [2017] NSWSC 900 and Ibrahim v R [2005] NSWSC 1028.
Although no separate ground in relation to delay was pleaded, the applicant Maris submitted that the issue of delay was a matter relevant to a consideration of whether the sentence was manifestly excessive. He also drew attention to various subjective matters, including prospects for rehabilitation, remorse, and his criminal record, submitting that it was not a bad record.
The Crown submitted that the cases of R v Button; R v Griffen and Perrin, relied upon by Maris, were not appropriate comparable cases. Button & Griffen was a conviction appeal. In any event, no standard non-parole period applied to the offence. The matter of Perrin did not involve an offence of aggravated sexual intercourse without consent. In any event, the offender in Perrin had pleaded guilty to the offence of sexual intercourse without consent, he was 18 years old, had no prior convictions and was a person of prior good character.
The Crown submitted that the cases put forward as comparable in relation to the hindering offence involved other factors that justified a lesser sentence.

Determination

Her Honour imposed an aggregate sentence of nine years with a non-parole period of six years and nine months. The indicative sentences were eight years with a non-parole period of six years for the aggravated sexual assault, and four years for the hindering the police investigation.
In relation to the objective seriousness of Maris’s offending, her Honour said:

[107] On the evidence that is available, I regard the seriousness of Mr Maris’s offending as less objectively serious, both when compared to the sexual offending of Mr Attwater and to other offending on a notional spectrum of offending against s 61J of the Crimes Act.
[108]   The objective seriousness of the sexual offending of both offenders must also reflect the jury’s verdict that the circumstance of aggravation in each offence, in that they each performed a different act of intercourse upon an unconscious woman, not only in one another's company but at the same time, was proved beyond reasonable doubt.
[109]   In the result, my assessment of the objective seriousness of the sexual offending of both offenders, referable to the various findings I have made adverse to both offenders concerning the facts, matters and circumstances in which the offending occurred and without reference to any matters personal to either of them, is that the moral culpability of both offenders for the aggravated sexual assault which they were each convicted is high, although Mr Attwater’s sexual offending is by far the more serious.
[110]   The standard non-parole period and the maximum period of imprisonment are both of significance in guiding the exercise of my sentencing discretion for that reason.
[111]    The sentencing principle of long-standing that non-consensual sexual intercourse is itself a form of violence which must be loudly denounced by sentencing courts does not require restating.
The hindering offence
[112]   The objective seriousness of the offence of hindering the discovery of evidence is to be assessed both in the context of the seriousness of the serious indictable offence the subject of the police investigation (in this case the sexual assault by Mr Atwater) and the fact that although remnants of the blood-soaked mattress and Ms Daley’s clothing were recovered, police were nonetheless deprived of forensic evidence which I am well satisfied would have supported the prosecution case against Mr Attwater for the sexual offence for which he was ultimately convicted. I am unable to make any categorical finding as to whether the burning of the mattress and clothing impacted on the decisions of the Director of Public Prosecutions not to prosecute at an earlier time, or any categorical finding as to what motivated Mr Maris to act as he did, since he has not acknowledged responsibility for any criminal conduct in the burning of the mattress or sought to explain it. That being the case, the comparative cases which I was asked by Mr Wasilenia to consider are of no utility.     (emphasis added)

Senior counsel for the applicant correctly accepted that where an aggregate sentence is imposed, any appeal is against that sentence. Nevertheless, if it can be shown that the indicative sentences are themselves excessive, that may inform the question of whether the aggregate sentence is excessive, although the fact that indicative sentences are excessive will not necessarily mean that the aggregate sentence is excessive: Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191 at [114] (per Bathurst CJ, Hoeben CJ at CL and Price J agreeing).
It should first be noted that the indicative sentence for the sexual assault charge is less even than the standard non-parole period for the offence. That is relevant because, as her Honour noted at [110] of her remarks, the standard non-parole period and the maximum penalty were both of significance in guiding the exercise of her discretion. Notwithstanding that Maris was convicted after a trial, the assessment by the sentencing judge of high moral culpability for the offence (justified at least by the concession made on behalf of Maris that the deceased was unconscious at the time he had sexual intercourse with her), the finding of lack of remorse, his guarded prospects of rehabilitation and his criminal record, including serious offences of domestic violence committed subsequent to the offences involving the deceased, her Honour indicated a sentence considerably below not only the maximum penalty but below the standard non-parole period. In fact, on the evidence before her Honour, the applicant Maris had few matters which operated in mitigation of any sentence. One matter was the delay in charging for which he received some benefit. The other was his background including his alcohol abuse and ADHD, both of which appear to have limited his education, job prospects, and, seemingly, shaped his attitude to women and his ability to form and maintain relationships.
Her Honour was conscious of the danger of double counting in relation to the sexual assault offence. She said at [102]:

I accept that because Mr Maris’s knowledge of Mr Attwater’s sexual offending is an element of the offence of hindering there should be no double counting of that feature of his offending in the sentence to be imposed on the aggravated sexual assault, although it will need to be reflected in the aggregate sentence.

The applicant Maris submitted that the sentencing judge did not refer to the report of Dr Dayalan, a psychiatrist who examined him on about October 2017, when dealing with prospects of rehabilitation. Dr Dayalan had said:

Mr Maris can be considered to have reasonably good prospects of rehabilitation given his current relationship status, employment history and engagement with treating psychiatrist following the offences.

Her Honour did make reference to Dr Dayalan’s report in relation to the issue of rehabilitation. Her Honour said at [167] of her remarks, when dealing with submissions of his counsel about that matter:

Mr Wasilenia submitted that given Mr Maris’s assessment by the author of the pre-sentence report as at a medium risk of re-offending, and that the actuarial risk assessment indicated that he has an average risk of sexual re-offending, his compliance with treatment recommendations outlined in Dr Dayalan’s report would advance his prospects of rehabilitation. Counsel submitted that Mr Maris has responded positively to treatment for his mood fluctuations and his ADHD before entering custody. I note that Dr Dayalan considered Mr Maris would be less likely to relapse into an alcohol use disorder if his anxiety is reduced and that he appeared to be motivated to refrain from excess alcohol use in the future.

Her Honour was not, of course, obliged to accept Dr Dayalan’s opinion. In that regard, it is significant that Dr Dayalan did not appear to have the information her Honour had concerning Maris’s offending since the deceased’s death. That he had offended further at all was significant for an assessment of his prospects of rehabilitation. However, when the offending involved what amounted to domestic violence against his then partner, her Honour was entitled to give little weight to Dr Dayalan’s opinion, especially as he cited the applicant’s “current relationship status” as a basis for his opinion on rehabilitation. That relationship was only of two to three months’ duration, and Dr Dayalan had already noted that Maris “had had a number of romantic relationships but they had usually been short-lived, lasting no more than 12 months”.
The Crown’s submissions with regard to the cases put forward as comparable in relation to the sexual assault charge should be accepted. The case of R v Button; R v Griffen was a conviction appeal where no comment was made about the sentences imposed at first instance. The case of Perrin involved a count of sexual intercourse without consent not in circumstances of aggravation. The appellant was aged 18 years with no prior convictions.
In all the circumstances, it cannot be said that her Honour’s indicative sentence for the sexual assault offence was outside the range of appropriate sentences.
What her Honour said in relation to the hindering offence in her sentencing judgment at [112] has been set out above at [513]
The applicant Maris submitted that her Honour should have found that there was no evidence that his conduct had impacted on the decisions of the DPP which resulted in delay in charging the applicants. There was, however, no evidence about that matter, and her Honour was correct in saying that she could not make a categorical finding about the matter. The statement is not against Maris’s interest.
The applicant submitted further that the only conceivable motive for Maris burning the mattress and clothing was a misguided attempt to protect Attwater. It may be accepted that this is the most likely explanation for his actions, but it cannot be said that it reduces his moral culpability in any way, particularly because he was involved in the sexual assault of the deceased at the same time.
It was suggested that R v Smith [2017] NSWSC 900 and Ibrahim v R [2005] NSWSC 128 were useful comparable cases.
In Smith, the offender hid a knife and some other items used by his girlfriend when she told him that she had stabbed someone. Later the same day, he found out that the victim had died. He then told the police what he had done and showed them the hidden items. Button J held that it was a serious example of a serious offence. He sentenced the offender to a non-parole period of eight months with a balance of term of seven months.
In contrast to the present offending, the offending in Smith was extremely short-lived. The offence was found to have been motivated by a “foolish desire” to protect a person he loved. The offender was found to be remorseful. The circumstances of such short-lived hindering might well be thought to be at the lower end of objective seriousness when it was brought to an end by the offender’s own confession. It was also necessary for the sentence to take into account, on the totality principle, other offences of cultivating a prohibited drug discovered at the time of the offender’s admission. In the present matter, the hindering was of a permanent nature which on any view must have restricted the investigation of the offences. The applicant Maris was not remorseful, and the hindering was partly motivated by self-interest.
In Ibrahim, a person named Walid Ahmad killed another person. The offender gave advice to Ahmad as to what he should do to avoid the police finding him following the killing. The effect of the hindering was succinctly stated at [5]:

The offender accepts that by his acts the police investigation was compromised by the delay in arresting Ahmad for a period of about a month after the killing. The delay had an impact upon the police use of forensic and ballistic aids to investigate the shooting and discouraged other persons from coming forward with information. As a consequence a relatively simple straightforward investigation became an expensive and difficult one.

Howie J held that the conduct of the offender fell at the very lower end of the scale of offending. The offender pleaded guilty. The offender was effectively sentenced to 20 months’ imprisonment with a non-parole period of 15 months but the sentence was wholly suspended. The Crown had consented to a suspended sentence. There was a parity issue with another offender, and the offender had health difficulties which made periodic detention unsuitable. These matters, together with the consideration that the sentencing judge in the present case found the applicant Maris’s offending reflected a high level of moral culpability, mean that Ibrahim is of very limited usefulness as a comparator.
Although a sentence of four years may be thought to be a stern sentence, a number of matters suggest that such an indicative sentence does not demonstrate error in the aggregate sentence. First, her Honour found that there was a high level of moral culpability. Where the maximum sentence is seven years’ imprisonment, a sentence of four years on that basis alone was open to her Honour. That is the more so when there was no guilty plea, her Honour found no remorse, and any motivation must have partly been informed by self-interest. Secondly, the hindering in the present case resulted in important evidence being destroyed, so that the hindering was of a permanent kind. Thirdly, the notional accumulation produced by the aggregate sentence was one year only.
Ultimately, the appeal is only in respect of the aggregate sentence. Having regard to the foregoing reasons, an aggregate sentence of nine years with a non-parole period of six years and nine months was not outside the range of appropriate sentences for the two offences.

Conclusion

Although we would grant each applicant leave to appeal, it follows that the sentence appeals must be dismissed.

orders

We make the following orders:

An extension of time is granted to the applicant Maris to file his application for leave to appeal against conviction and sentence;

To the extent that leave is necessary, leave is granted to the applicants to appeal against conviction;

In each case, the appeal is dismissed;

Leave is granted to the applicants to appeal against sentence;

In each case, the appeal is dismissed.

**********

Decision last updated: 26 February 2021

Medium Neutral Citation:	Attwater v R; Maris v R [2021] NSWCCA 17
Hearing dates:	14, 15, and 16 October 2020
Date of orders:	26 February 2021
Decision date:	26 February 2021
Before:	Bathurst CJ; Davies J; Wilson J
Decision:	(1) An extension of time is granted to the applicant Maris to file his application for leave to appeal against conviction and sentence; (2) To the extent that leave is necessary, leave is granted to the applicants to appeal against conviction; (3) In each case, the appeal is dismissed; (4) Leave is granted to the applicants to appeal against sentence; (5) In each case, the appeal is dismissed.
Catchwords:	CRIMINAL LAW – trial - appeal against conviction – joint trial – aggravated sexual assault – manslaughter – hinder discovery of evidence – question of error in the directions to the jury concerning the use made of evidence of lies – whether convictions not supported by the evidence CRIMINAL LAW – appeal against sentence – asserted error in findings of fact concerning level of intoxication of complainant – asserted failure to take into account absence of planning – asserted error in assessment of seriousness of crime – question of delay as a mitigating feature – question of extra-curial punishment as mitigating feature – relevance of post offending conduct – prospects of rehabilitation – manifest excess
Legislation Cited:	Coroner’s Act 2009 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Dhanhoa v The Queen (2003) 217 CLR 1; [2003] HCA 40 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Gibson v R [2019] NSWCCA 221 Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353 Ibrahim v R [2005] NSWSC 1028 Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191 Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 M v The Queen (1994) 181 CLR 487; [1994] HCA 63 Mulato v R [2006] NSWCCA 282 Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12 Perrin v R [2006] NSWCCA 64 R v Attwater; R v Maris [2017] NSWSC 1710 R v Baker [2000] NSWCCA 85 R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 455; (2002) 129 A Crim R 242 R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 Rv O’Donoghue (1988) 34 A Crim R 397 R v Smith [2017] NSWSC 900 R v Sutton (1986) 5 NSWLR 697 R v ToiaSiulai [2004] NSWCCA 152 Rend v R [2006] NSWCCA 178 SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 Tabbah v R [2017] NSWCCA 55 The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279 Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220 Zoneff v The Queen (2000) 200 CLR 234
Category:	Principal judgment
Parties:	Adrian Attwater Paul Maris Regina
Representation:	Counsel: J Manuell SC / T Quilter (Applicant Attwater) J Stratton SC / T Hennessey (Applicant Maris) D Kell SC / G Huxley (Respondent) Solicitors: Legal Aid (Applicant Attwater) P Williams and Company Lawyers (Applicant Maris) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2016/00192006; 2016/00190670
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: [2017] NSWSC 1710 Date of Decision: 8 December 2017 Before: Fullerton J File Number(s): 2016/00192006; 2016/00190670