Campbell v R

[2014] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Campbell v R [2014] NSWCCA 175

Hearing dates:

21 May 2014

Decision date:

02 September 2014

Before:

Bathurst CJ at [1]; Simpson J at [281]; Hidden J at [338]

Decision:

Appeal dismissed

Catchwords:

CRIMINAL - appeal - conviction - whether misdirection in presentation of crown case to jury - no misdirection on factual possibility of push followed by a trip - consistent with an intention to kill - direction consented to - no tactical disadvantage - no miscarriage of justice - misdirection on availability of mental element of reckless indifference to human life - not Crown case - whether miscarriage of justice - significance of the appellant's case that he was not involved in death at all - possibility of jury speculating remote - no objection by counsel

CRIMINAL - appeal - evidence - admission of evidence - expert opinion - whether evidence wholly or substantially based on specialised knowledge - process of reasoning involved matters of common knowledge

CRIMINAL - appeal - evidence - admission of evidence - expert opinion - whether expert had relevant expertise - whether expertise from study and experience - no details of how investigations conducted equipped expert to give evidence in present case - publications not tendered - titles of publications insufficient evidence of expertise from study and experience

APPEAL - criminal - whether notwithstanding appellant's success appeal should be dismissed - application of proviso - 6(1) Criminal Appeal Act 1912 (NSW) - whether no substantial miscarriage of justice - consideration of importance of expert evidence - Court satisfied beyond reasonable doubt that evidence properly admitted at trial proved the guilt of the appellant

APPEAL - criminal - fresh evidence - whether Court of Criminal Appeal decision concerning expert and book published by expert before trial is fresh evidence - could have been discovered by reasonable due diligence - no miscarriage of justice - previous decision of Court of Criminal Appeal irrelevant to admissibility of expert evidence

CRIMINAL - appeal - conviction - no error in direction on use of evidence as both tendency evidence and for motive - reserve consideration of whether tendency evidence must be proved beyond reasonable doubt reserved

Legislation Cited:

Crimes Act 1900 (NSW), s 18
Criminal Appeal Act 1912 (NSW), s 6
Criminal Appeal Rules (NSW), r 4
Evidence Act 1995 (NSW), ss 79, 80, 91 and 97

Cases Cited:

AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70; (2007) 159 FCR 397
Chand v R [2011] NSWCCA 53
Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486
Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588
DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206
Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
James v The Queen [2014] HCA 6; (2014) 88 ALJR 427
Lane v R [2013] NSWCCA 317
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531
Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
Peter Mickleberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461
R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417
R v Doyle [2014] NSWCCA 4
R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700
R v Pureau (1990) 19 NSWLR 372
Reg v Solomon [1980] 1 NSWLR 321
Regina v Meher [2004] NSWCCA 355
Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378
Sheen v The Queen [2011] NSWCCA 259; (2011) 215 A Crim R 208
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
The Queen v Crabbe [1985] HCA 22; (1985) 156 CLR 464
Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581

Category:

Principal judgment

Parties:

Desmond Campbell (Appellant)
Crown (Respondent)

Representation:

Counsel:
A Francis / L C Hutchinson (Appellant)
S Dowling SC (Crown)
Solicitors:
Michael Bowe (Appellant)
Director of Public Prosecutions (Crown)

File Number(s):

2009/207160

 Decision under appeal 

Date of Decision:

2010-05-18 00:00:00

Before:

Latham J

File Number(s):

2009/207160

Judgment

BATHURST CJ:

Heading	Par
The evidence at the trial	[6]
The appellant's relationship with the deceased	[6]
Financial transactions between the appellant and the deceased	[32]
The appellant's relationship with the deceased's family	[41]
The appellant's relationship with other woman	[45]
(a) Ms Ingham	[46]
(b) Ms Velicanski	[58]
(c) Ms Janet Aldred	[66]
(d) Ms Lynda Rodgers	[68]
The day of the incident	[72]
The rescue operation	[89]
The post mortem	[96]
After the incident	[99]
Expert evidence led at the trial	[120]
(a) Associate Professor Rodney Cross	[120]
(b) David Beck	[133]
The Crown case and the directions to the jury	[142]
Ground 1	[149]
The submissions of the parties	[149]
(a) The appellant	[149]
(b) The Crown	[162]
Consideration	[171]
Ground 3	[197]
The submissions of the parties	[208]
(a) The appellant	[208]
(b) The Crown	[215]
Consideration	[220]
Ground 4	[236]
The submissions of the parties	[236]
(a) The appellant	[236]
(b) The Crown	[238]
Consideration	[245]
Ground 5	[250]
The submissions of the parties	[251]
(a) The appellant	[251]
(b) The Crown	[253]
Consideration	[255]
The proviso	[260]
Conclusion	[280]

1. Mr Desmond Campbell (the appellant) was arraigned on a charge that on 24 March 2005 he murdered Janet Campbell.

1. The appellant was convicted following a trial before Latham J and a jury. He was sentenced to a non-parole period of imprisonment of 24 years to date from 10 May 2010, with a balance of term of 9 years expiring on 9 May 2043.

1. The appellant has appealed against his conviction on the following grounds:

"1. A miscarriage of justice has been occasioned by the Trial Judge advancing, for the first time in the summing up, a second and alternative scenario, which was not relied upon by the Prosecution, which amounted to liability for murder, namely reckless indifference to human life.

2. A miscarriage of justice has been occasioned by the summing up from a failure on the part of the Trial Judge to leave an alternative verdict of manslaughter by dangerous and unlawful act.

3. The Trial Judge erred in admitting the evidence of Associate Professor Cross over objection.

4. There has been a miscarriage of justice in the trial of the Appellant on account of fresh evidence.

5. The Trial Judge erred in her directions attaching to the evidence of June Ingham as constituting motive and tendency."

1. Ground 2 of these grounds was abandoned at the hearing.

1. Because of the nature of the grounds of appeal and the submissions made by the parties, it is necessary to set out the evidence at trial in some detail.

The evidence at the trial

The appellant's relationship with the deceased

1. In a record of interview conducted between the appellant and two police officers on 25 March 2005, tendered by the Crown at the trial, the appellant said he met Janet Campbell formerly Fisicaro (the deceased) in January 2000 when he was stationed as an ambulance officer at the Deniliquin Hospital. The deceased lived in Deniliquin whilst he was working at the hospital. The appellant said his friendship with the deceased escalated approximately a year and a half before the deceased's death. The deceased and the appellant were married in September 2004. The deceased was 49 years old when she died on 24 March 2005.

1. The deceased had previously been married to Frank Fisicaro and had one son from that marriage, Stephen. Frank Fisicaro died in 1997. According to the deceased's sisters, Ms Eunice Marshall and Ms Ellen Rourke, and a work colleague, Mr Colin Sander, it was rumoured around Deniliquin that the deceased was a wealthy widow.

1. The deceased was described by her solicitor, a Mr David Grant, as "simple" and being of "below average intelligence". An acquaintance, Mr Stanley Drummond, said she was "a little bit slow". The deceased's sisters and her son gave evidence that the deceased did not play sport, participate in any exercise activities or like camping. Her sister, Ms Rourke, and her son said she had a fear of heights and her brother said she hated the dark.

1. By contrast the appellant told police after the deceased's death that he was not aware the deceased was scared of heights and that she used to laugh at him because he could not stand too near the edge of a cliff. However, photographs were tendered at trial showing the appellant posing for the camera on benches and railings on the edge of lookouts and hills.

1. A marriage celebrant, Ms Jennafer Whelan, gave evidence that in August or early September 2003 the appellant and the deceased met with her to discuss their proposed wedding. She said a date was set for later that year. However in October or November the appellant contacted her to cancel the wedding. According to Ms Whelan the appellant told her it was because the deceased had told him an unforgivable lie.

1. On 23 March 2004 the deceased contacted a dressmaker, Ms Marlene Erard to make an outfit for her wedding, which she said was planned for 13 April. Ms Erard gave evidence to the effect that the deceased mentioned there were family issues in her family not accepting or liking her fiancée. That same day the deceased visited a general practitioner, Dr Sydney Paul, and requested a contraceptive pill prescription. The deceased subsequently informed Ms Erard the wedding was postponed.

1. In April or May 2004 the appellant's brother (Neil), his (then) wife (Ms Toni Sanderson) and her son visited the appellant in Deniliquin. The appellant told Neil that a woman was harassing him and that he should not answer the door or phone. Ms Sanderson's evidence was that the appellant said a woman called Janet was stalking him. She said she heard the appellant on the phone to the woman and he seemed really pleasant. However when he came off the phone he was the complete opposite, denigrating the woman, saying she was very ugly and filthy rich. She said the appellant told her the woman was so ugly he couldn't bring himself to "shag her". Neil gave evidence that he heard the appellant say something like "She was so ugly you would have to chew your arm off if you woke up next to her". Neil said he also heard the appellant say something about how he didn't think he could have sex with someone to get a sports car. During that stay at Deniliquin Neil said he suggested the appellant buy an EPIRB (Emergency Position Indicating Radio Beacon) as he was talking about a hobby of riding trail bikes.

1. Mr Colin Sander, a work colleague of the appellant and the deceased, gave evidence. He said that on 25 April 2004, at the ANZAC day horse races in Deniliquin, he went up to the appellant to congratulate him on his engagement to the deceased. He said he had heard about the engagement through general gossip and family members. According to Mr Sander the appellant said that he was not engaged to the deceased, never would be and if she kept on stalking him he would "put out an AVO on the bitch".

1. The appellant's superior at work, Mr Robert Crampton, said that whenever the appellant spoke about the deceased it was in a derogatory manner. Mr Crampton said initially the appellant said they were engaged, however subsequently the appellant told him the relationship was finished and from then on he denied vehemently that there was any relationship between him and the deceased. According to Mr Crampton the appellant said to him, on dozens of occasions, from the time the appellant first said the relationship with the deceased was finished to the day he left Deniliquin, that she was "a fat ugly slut, that she was chasing him, texting him, phoning him, that he was sick of it. He was going to - if she kept it up, take out an AVO against her, kick her up the arse and tell her to ... fuck off".

1. During the winter of 2004 the appellant telephoned Ms Whelan (the marriage celebrant) stating he and the deceased were intending to be married on 17 September 2004. They were married in Echuca, Victoria on 17 September. No guests were present at the wedding and at the appellant's request Ms Whelan arranged two witnesses to attend the ceremony. The deceased did not tell her family about the wedding.

1. Mr Grant gave evidence that on 9 August 2004 the deceased had executed a will leaving her entire estate to her son. However, on 24 September, after her wedding with the appellant, the deceased executed a new will, leaving a legacy of $100,000.00 to her son with the residue of the estate to be divided equally between her son and the appellant. Mr Grant also gave evidence that the deceased asked him to not tell anyone about her marriage.

1. Ms Marshall gave evidence that in September 2004 she became aware that the deceased wanted to sell her Deniliquin house. She said that the deceased and her son moved out of their Deniliquin house and in with one of the deceased's sisters in October 2004. Ms Rourke gave evidence that when she and the deceased were packing up the house in Deniliquin the deceased said the appellant had to leave the night they were packing because his brother was ill and in a coma. Neil was not in a coma in hospital. The deceased also told her that she had received an engagement present from the appellant's parents. She said she had not met them but had spoken to them on the phone. The appellant's parents gave evidence they had never met the deceased or spoken on the phone to her. The appellant's father said he had never sent her a present.

1. A real estate agent, Ms Julie Humphries gave evidence that on 15 October 2004 the deceased and the appellant viewed two properties in Otford, one of them located at 49 Station Street, Otford (the Otford residence). The property was purchased for $660,000.00. The deceased paid a holding deposit ($1,660.00), the balance of deposit ($64,350.00 on 8 November), the stamp duty ($25,194.00) and later in February 2005, $50,000.00 to reduce what was owing on the mortgage over the Otford residence. The land was held by the appellant and the deceased as tenants in common.

1. An acquaintance of the deceased, Mr Stanley Drummond, gave evidence that on 14 November 2004 the deceased told him that the appellant had wanted the house to be in his name so that he could claim benefits from the Ambulance Service. However she said she had kept the house in her name. At the end of 2004 the appellant spoke to a friend, Mr John Thompson. The appellant told Mr Thompson he was looking to buy a place in Otford and had found a place that cost around $600,000.00. The appellant told Mr Thompson he could afford it because his parents had helped him purchase it.

1. In late November or early December 2004, the appellant started living at the Otford residence. He commenced work at the Helensburgh Ambulance Station on 18 December. The deceased spent a few days at the Otford residence in December 2004.

1. Neil gave evidence that after Christmas in 2004 he went with Ms Sanderson and her son to the Otford residence. The appellant did not mention a woman named Janet or that he had married. Whilst Neil was visiting the appellant, a Ms Gorica Velicanski stayed at the Otford residence in the appellant's bedroom. The appellant's relationship with Ms Velicanski is discussed in detail below.

1. Evidence was given at trial to the effect that one day while Neil and Ms Sanderson were at the Otford residence a neighbour from next door, Mr Christopher Wilmott, came over. He said to Ms Sanderson and Ms Velicanski words to the effect, "You must be Des's wife, Janet" or "You must be Janet" or "One of you ladies must be Janet". Both ladies denied being Janet. Neither Neil nor Ms Sanderson questioned the appellant about Janet's identity as the former did not want to jeopardise his relationship with his brother.

1. Ms Sanderson said there were three or four occasions when she saw the appellant in close proximity to the edges of cliffs.

1. On 28 January 2005 the appellant purchased a two person dome tent and an alpine camper sleeping bag from a K-Mart store in Figtree. The appellant told police after the deceased's death that he initially bought the camping gear with the intention of going camping with Mr Thompson.

1. On 15 February 2005 the deceased visited Dr Paul again and was prescribed a contraceptive pill.

1. On 23 February 2005 the appellant purchased an EPIRB from Dick Smith, Moore Park. The appellant told police after the deceased's death that he took the EPIRB on the day of the deceased's death because when he first moved to Otford he went for a walk along the cliff track along the bottom of the escarpment and thought it was "really hairy". The next week he had seen EPIRBs on sale.

1. On 28 February 2005 Mr Thompson stayed with the appellant for three days. Mr Thompson gave evidence that the appellant did not mention anything about being married or someone coming to move into the house. They went bushwalking but did not go camping. There was no plan to go camping at anytime.

1. One of the appellant's work colleagues at Helensburgh, Mr Christopher Robbie, said the appellant told him he was married but there were family troubles. The appellant said his wife was going to move up to Otford with him. It was Mr Robbie's impression that the appellant was looking forward to the day she would arrive. Mr Robbie recalled that two weeks before the deceased's death the appellant was excited about her coming up and showing her the area and taking her camping.

1. On 18 March 2005 the deceased moved to the Otford residence. One of the deceased's sisters helped her pack up her belongings in Deniliquin. When they were packing the deceased was putting things into garbage bags. The deceased said to her sister that the appellant had told her it would be easier to carry her things in bags rather than boxes and cases.

1. Mr William Young, a brother-in-law of the deceased, gave evidence that on four or five occasions over a period of two or three months the deceased spoke to him about the National Park. She said going to the National Park was part of her initiation for her new life. She said the appellant had been up in the National Park many times looking for a suitable camping site and it was part of her initiation to go camping.

1. On 22 March 2005 the deceased spoke to a friend, Mr Barry Navin. She said she moved up to Otford on 18 March and that the appellant was talking about taking her camping in the National Park over the Easter period.

Financial transactions between the appellant and the deceased

1. On 1 April 2004 the deceased withdrew $2,500.00 from a Macquarie Investment Account and deposited it into the appellant's National Visa Account.

1. On 7 June 2004 the deceased withdrew $23,000.00 from an investment account and deposited it into the appellant's NAB Flexi Direct Account. She had told her financial advisor that the money was to repay a loan on a property at Castlemaine where the appellant's parents lived. She said the property was in the appellant's name. There was no such property and no such loan. The appellant's parents did not receive the money from the appellant. The funds were used to reduce credit card debts owed by the appellant.

1. Upon the sale of the deceased's house in Deniliquin, the proceeds went directly into the appellant's NAB Flexi Direct Account. The appellant used approximately $25,000.00 of the money to pay his debts.

1. On 22 October 2004 the deceased and the appellant signed a National Bank loan application. The appellant listed his assets as $2,100.00 and a car. The deceased's assets were listed as a home valued at $280,000.00, a $250,000.00 investment account and a car.

1. The Ambulance Service reimbursed $19,333.20 (being the stamp duty paid on the Otford residence) to the appellant on 9 March 2005. Notwithstanding the receipt of this money he did not pay the stamp duty. This money was not passed onto the deceased but rather some of it was used to pay the appellant's debts.

1. On 4 January 2005 the appellant purchased a motorbike and transferred $3,500.00 from his account by way of internet transfer. On the same day there was another internet transfer of $5,000.00.

1. Throughout April and May 2005 the appellant withdrew an amount totalling $70,000.00 from the joint mortgage account held by the appellant and the deceased and placed part of the money in the appellant's bank account or used it to pay off his credit cards.

1. The evidence established that the appellant received by way of benefit from his relationship with the deceased, both before and after her death, a monetary amount totalling $325,202.00. This did not include the benefit he would obtain from the sale of the Otford residence and under the deceased's will. It was estimated that if these amounts were included the monetary benefit would total $467,736.00.

1. Ms Rachel Slat, a solicitor specialising in family law gave evidence at the trial. She said that if there had been divorce proceedings in March 2005 the appellant would be expected to receive, through a negotiated settlement or court order, between 0% and 5% of the appellant and deceased's total assets. The evidence was unchallenged.

The appellant's relationship with the deceased's family

1. Ms Marshall stated that the first time most of the deceased's family members met the appellant was around March 2004. Within a couple of days of having introduced the appellant, the deceased told her family members that she was engaged. The deceased's family members and friends gave evidence that they confronted the deceased not long after meeting the appellant, when they heard stories about the appellant, to the effect that he was a womaniser and only wanted to marry the deceased for her money. Members of the family had heard rumours about the appellant's earlier treatment of a Ms June Ingham. The appellant's relationship with Ms Ingham is described below.

1. Ms Marshall and Ms Rourke gave evidence that the deceased denied the truth of the rumours and wouldn't listen to what her family was saying. Ms Marshall gave evidence that the deceased was besotted with the appellant. Ms Rourke gave evidence that the deceased told her the appellant didn't need her money as he had his own, had a farm in Bendigo and was going to leave it to her son Stephen, not his daughter from a previous relationship, whom he hated.

1. Members of the deceased's family challenged the deceased again when they heard that the engagement was "back on again". This was after having being told by the deceased that the engagement had been called off and it "wasn't worth it" because her family did not approve. The deceased's brother gave evidence the deceased told him that the appellant was going to put an AVO out against him if he kept saying things about the appellant. Members of the deceased's family were not told of her marriage to the appellant until around 17 March 2005, a day before the deceased left Deniliquin.

1. The appellant told police after the deceased's death that he thought her family were "interfering pricks". He knew that the deceased didn't tell them she was married to him until a month or so before her death. He didn't think he could name half the family members, because he was not interested in them.

The appellant's relationship with other woman

1. In addition to the relationships described below evidence was led at trial that the appellant had been married twice before and had divorced in October 1991 and February 1996.

(a) Ms Ingham

1. From 1997 the appellant had a relationship with Ms Ingham, who the appellant met when working in England. In 1999 and 2000 Ms Ingham visited the appellant in Australia. Mr Crampton gave evidence that in 2000, whilst Ms Ingham was visiting the appellant in Deniliquin, the appellant spoke about her to Mr Crampton in a derogatory way. He said to Mr Crampton that he wished she would go home so he wouldn't have to spend so much on her.

1. The evidence of Ms Ingham was to the following effect.

1. Between November 2000 and April 2001 the appellant asked Ms Ingham over the telephone to marry him.

1. In 2001 Ms Ingham received money from a property settlement connected with a previous marriage. Ms Ingham at some stage had discussed with the appellant the amount she was expecting to receive from the property settlement.

1. On 4 April 2001 Ms Ingham was picked up by the appellant from Melbourne airport. She had thought she was going to spend the rest of her life with him. Later that night the appellant became very angry when Ms Ingham told him how much money she had received from the property settlement (approximately £28,000.00). The appellant said it was not as much as she was supposed to get. He called her a "fucking liar and a slag". The appellant did not speak to her for the rest of the evening.

1. The next day the appellant drove her from the hotel they had stayed at back to the airport and left her there. Ms Ingham went to a hotel. Later that night the appellant called and apologised to Ms Ingham. He said he would return the next day to Melbourne by bus. The appellant also started talking about how he wanted a sports car.

1. The appellant came back to Melbourne the next day. He and Ms Ingham went to one car dealership, which the appellant had found, and decided to buy a Lotus Esprit. Ms Ingham paid for the sports car using money from her property settlement. It cost $63,000.00. The appellant contributed $5,700.00 by way of credit card to help pay for the car. Ms Ingham told the appellant she would pay him back, which on 4 May 2001 she did. At that time she also paid the appellant an additional $1,100.00.

1. After purchasing the car Ms Ingham went and lived with the appellant in Deniliquin. At some stage the appellant gave her an engagement ring. Whilst Ms Ingham was living with the appellant in Deniliquin the appellant suggested that they sell the car and use the money to buy a house. The appellant said the house would be in his name as she was not a resident of Australia. He made a will out to Ms Ingham so if anything were to happen to him, she would get the house.

1. In May 2001 the appellant told Ms Ingham he had sold the car and had not lost that much money on it. An amount of $50,000.00 was placed in the appellant's bank account. Mr Crampton said he remembered the appellant had a Lotus Esprit sports car. He told Mr Crampton he had sold it for $60,000.00.

1. Ms Ingham found a house which she agreed to buy in June 2001 for $148,500.00. The deposit for the house was paid out of the funds from the sale of the car on 6 June 2001. The appellant received a first home owner's grant totalling $7,000.00. Ms Ingham never received any of the money remaining from the sale proceeds of the car (that was not put towards the house).

1. Ms Ingham lived with the appellant in the house throughout 2001, at times travelling to England to visit friends and family and resolve remaining legal and family affairs. Ms Ingham met the appellant's parents multiple times and also met Mr Thompson. On 27 December 2001 Ms Ingham travelled to England to say goodbye to her family and pack up and send her things over. When in England Ms Ingham packed all her belongings up and shipped them to Australia. Ms Ingham said whilst in England her telephone calls with the appellant got shorter and shorter and he started to not call her back. On 15 February 2002 she received a text message which said, "I'm sorry, but I am moving to live with ex-wife and Jess. Will sell house and send you money. Post me address for your things to be sent to. Have made up mind to do this.".

1. Ms Ingham subsequently found out from her younger sister still living in Deniliquin that the appellant was selling the house bought with the proceeds from the car. She obtained a solicitor to help recover the money from the sale of the house as the appellant did not respond to her text messages. She sought to recover $40,000.00 from the appellant. The appellant said he was going to post her things back but she did not receive anything save a photo album. Ms Ingham subsequently discovered in her legal proceedings against the appellant that he had sold the house for $150,000.00. There was evidence that out of this sum the appellant received $22,694.99. Ms Ingham settled her proceedings against the appellant for $9,000.00 by way of two payments, one in September 2003 and one in January 2004.

(b) Ms Velicanski

1. The evidence of Ms Velicanski was to the following effect.

1. In 2003 Ms Velicanski received an email from the appellant on the website "youdate.com". Around 10 or 11 September 2003 the appellant went with Ms Velicanski and stayed a couple of nights at Budgewoi. They then travelled to Sydney and spent the evening at the Ibis Hotel at Sydney Airport. They fought, but subsequently the appellant sent a card and teddy bear to Ms Velicanski and asked to continue the friendship. They continued to send regular emails.

1. On 19 December 2003 Ms Velicanski flew to Albury and stayed in Deniliquin with the appellant for two or three days. After that trip they remained in contact and in February 2004 the appellant drove to Budgewoi to stay with Ms Velicanski for approximately two weeks. Both in Deniliquin and in Budgewoi Ms Velicanski had a sexual relationship with the appellant. Following the stay in Budgewoi Ms Velicanski and the appellant had regular contact, speaking on the telephone on a daily basis. The appellant told her he loved her.

1. Between February and April 2004 Ms Velicanski went and saw the appellant in Albury. In April 2004 she went and saw the appellant in Deniliquin. Whilst visiting, the appellant suggested Ms Velicanski meet his parents. Before the end of Ms Velicanski's stay she and the appellant had an argument so she returned to Sydney.

1. Ms Velicanski did not have much contact with the appellant from April 2004 until November 2004. In November 2004 Ms Velicanski received a text message from the appellant asking her to come on a trip with him to Townsville. After this they started communicating again by text message. The appellant told Ms Velicanski he had got a job in, and was moving to, Helensburgh. The appellant visited Ms Velicanski in Budgewoi from 17 to 20 November. Ms Velicanski asked the appellant if he had had any other girlfriends since seeing her in April. The appellant replied "only one local sheep".

1. Ms Velicanski next met with the appellant on 20 or 21 December 2004 at a hotel in Darling Harbour. The appellant told her he had bought a house in Otford for $660,000.00 and was going to move into it in February 2005. He did not tell her he was already living at the house. He later asked if she would "trust him" and go away with him for a few weeks "without asking questions". He later invited Ms Velicanski to come and stay in Otford.

1. Ms Velicanski went to the Otford residence on 29 December 2004. After being asked by a neighbour, Mr Wilmott, if she was Janet, she later asked the appellant who Janet was. He said she was a friend of his who came with her boyfriend to look at the house.

1. Ms Velicanski went to see the appellant in Otford again in February 2005 and on 2, 3, 4, 5, 10, 11, 12 and 16 March. In March, whilst Ms Velicanski was at the Otford residence the appellant said that a friend was coming from Tamworth to go camping with him. He said he was then going to do an Ambulance Service course in Goulburn for six weeks, so Ms Velicanski would not be able to contact him. The station officer at Helensburgh Ambulance Station said the appellant was not enrolled to attend any such course during his time stationed at Helensburgh. At no stage did the appellant tell Ms Velicanski anything about a woman named Janet or that he was intending to get, and later had got, married.

(c) Ms Janet Aldred

1. The evidence of Ms Aldred was to the following effect.

1. Ms Aldred met the appellant in October 2002 on a dating website "RSVP" and "Udate". The appellant stayed at Ms Aldred's home in Sutherland a couple of weeks later and they had intermittent contact via email and phone. Some time around the end of 2004 Ms Aldred visited the appellant at the Otford residence for two or three days. She also stayed with the appellant for three days either on 15 or 22 March 2005. Whilst staying at the Otford residence Ms Aldred went and collected a parcel from the post office for the appellant. On the back of the parcel it said "from Janet". On each occasion she met the appellant they had a sexual relationship.

(d) Ms Lynda Rodgers

1. In May 2004 Ms Rodgers re-established contact with the appellant, a former boyfriend. The evidence of Ms Rodgers can be summarised as follows.

1. Ms Rodgers visited the appellant in Berrigan a few weeks after first making contact. She stayed the weekend with the appellant and had a sexual relationship with him. The appellant asked her to stay with him and leave her husband.

1. In the June school holidays of 2004, Ms Rodgers visited the appellant at Deniliquin and stayed for four nights. They also met up on 12 August in Melbourne. On that occasion the appellant spent more than a thousand dollars on dinner and drinks. In October they ceased to have contact as the appellant told Ms Rodgers she asked too many questions. They had been emailing and telephoning frequently from May to October.

1. On 25 February 2005 Ms Rodgers emailed the appellant. They continued to email each other a couple of times a week until around May or early June.

The day of the incident

1. On the morning of 24 March 2005 the deceased spoke to her mother on the telephone and told her that she and the appellant were going camping about five kilometres from their home. She told her mother, "... it's a beautiful camping ground. Everybody camps there. It's all set up." Her mother asked about toilets and she said, "... It's lovely camping grounds here. Everything is here."

1. Unless otherwise indicated, the following description of the camping trip was given by the appellant in a recorded interview to police officers early on 25 March 2005.

1. The deceased and the appellant had never been camping together before, although the appellant was experienced in camping from his army days when he was a platoon commander in the parachute battalion. The appellant said it was probably more his idea than the deceased's to go camping that day.

1. According to the appellant they had spoken about going camping for a long time; however the decision to go camping was made on that day because the weather was good. According to the appellant the deceased had an allergy tablet before they went camping. The appellant did not take a mobile because he rarely had service in Otford, let alone in the National Park. A Royal National Park ranger, Mr William Sullivan, gave evidence at trial that there was mobile telephone reception from most providers about 100 metres south of where the appellant and the deceased had camped. Detective Sergeant Spago also gave evidence that she had been to the site where the deceased and the appellant camped on more than eight occasions and she had not had any difficulty getting coverage from her service provider, Optus, including on 25 March 2005.

1. The appellant said he and the deceased drove to the Otford lookout car park. Mr Wilmott saw them leave the Otford residence around 11 am. The appellant had told Mr Wilmott, when asked, that they were camping around "Burning Palms".

1. Upon arrival at the car park around 12-12.30 pm they walked from the Otford lookout along the cliff top track until they came to the junction with the coastal track. They followed the coastal track down through the "Palm Jungle" until they came to the general vicinity of the "Figure Eight Pool".

1. The deceased was complaining all the time about being tired and her pack being heavy so they stopped at around 2 pm and set up their tent near some small trees, where there wasn't too much grass and a small clearing. The ground was rough and according to the appellant very difficult to walk on, with thick plants everywhere. The appellant dug out a rock and set the tent up with the deceased. The tent was about 15 metres from the edge of the cliff with the door of the tent facing the cliff. The appellant said he "never even thought twice" about the tent and its proximity to the cliff edge. The appellant said he was not familiar with the location where they camped above the "Figure Eight Pool".

1. Mr Sullivan gave evidence that he had never seen anyone else camp at the site where the appellant and the deceased camped and that it was not a designated area for camping. At that time there were camping areas at North Era Beach, Uloola Falls and at a trial location at what is now known as Wattamolla. There were signs at the Otford Lookout and along the track saying "no camping" and advising a camping permit was needed. The appellant did not apply for or have a camping permit. Mr Sullivan said that there were reasons why people would not want to camp where the appellant and the deceased camped; namely, the distance from the walking track to the location was difficult because of the nature of the vegetation, the slope of the site would have been uncomfortable to sleep on, there was very little area devoid of vegetation to set up a tent and it was close to the edge of the cliff. Mr Sullivan said the vegetation growing in that area, Lomandra, had sharp points. Mr Sullivan said that the closest camping site was at North Era Beach which would take a minimum of 45 minutes for an average person to walk from the site at which the appellant and the deceased camped. Mr Sullivan said there were toilets at "Burning Palms" in 2005.

1. At the campsite the appellant and the deceased ate food, drank tea and coffee, had a small amount of Baileys and lay around the tent. They only noticed it was windy when they were in the tent and saw the top of the tent moving a little bit. The appellant said they were both in good spirits.

1. According to the appellant after sunset, or 7 pm, as it was getting dark, the deceased left the tent saying she needed to go to the toilet. She did not take a torch with her and despite having toilet paper did not appear to take any, none being found around the area. There were no signs of anybody having gone to the toilet in the area when it was examined on 25 March 2005. The appellant told her not to go "down that way" as he had been to the toilet there himself earlier on. The appellant said about 15 seconds later he heard a sound like "ooh" or a loud sigh. The appellant said he yelled out something like, "what the fuck have you done?" and the deceased did not reply.

1. The appellant said he then went outside the tent and looked around. He could not see the deceased anywhere. When first speaking to police at the St George Hospital he said he looked over the edge and could not see her at the bottom. In the interview on 25 March however the appellant said he tried to get close to the edge to look over at several spots but he could not go really close because he was "a bit touchy about big drops" and climbing "real high ladders".

1. The appellant said he became concerned the deceased had gone over the edge, so he got his backpack from the tent and ran along the coastline. He grabbed his backpack because he thought he would need the space blanket in it and he thought there were bandages in there, which there were not. He did not know whether the deceased was over the edge, down the track or hurt.

1. At this point the appellant said it was not totally dark and it was light enough so you wouldn't walk into a tree. One of the appellant's neighbours, Ms Judith McGrath, gave evidence that it was an extremely bright night from a full moon. Expert evidence established at trial that 96% of the moon was visible on 24 March, it rose at 6.25 pm and the sun set at 7.02 pm. Civil sunset (beyond which point artificial lighting is needed) was 7.27 pm.

1. There were two gullies north of the campsite. The first could not be descended due to a 10 metre vertical drop. The appellant ran along the coastline and at the second gully got to a creek. He climbed down this, using a rope (later measured to be 8.32 metres in length) to descend the last bit of the slope that was about 10 metres to the bottom. The appellant then said he went back along the beach towards their campsite.

1. The appellant found the deceased at the bottom of the cliff (adjacent to their campsite). She was in a sitting position further out from the bottom of the cliff than where the appellant thought a person would be. A lot of blood splatter was subsequently observed on the rocks a number of metres from the deceased towards the cliff face. The appellant pulled the deceased's body up onto a flat rock and checked her pulse. He performed cardiopulmonary resuscitation but he knew she was dead. She was bleeding from the head and one eye was closed.

1. The appellant described a huge swell which he said meant he had to drag the deceased onto higher rocks so she wouldn't be swept away. He said she was "pretty heavy" and it was "very difficult". He put his jacket over her and set off his EPIRB some time before 8 pm. The EPIRB was first detected by a satellite beacon between 7.25 and 7.35 pm. The appellant recalled that the moon was up. He said at the time he did not know how long he should wait or whether he should run back to Otford to get help.

1. A partial footprint (matching the deceased's shoes, probably her right shoe) was subsequently identified just over the edge of the cliff where the slope of the ground was 25.64 degrees. There were small tea-trees and a number of their branches were freshly broken off. The broken branches were at a height of 1.435 metres and 1.480 metres, around chest height on an average person. Blood or human tissue was found at several points down the cliff. The evidence at trial indicated the shoelaces on the right shoe of the deceased were undone.

The rescue operation

1. A rescue helicopter was dispatched and arrived just before 10 pm at the location in Otford. According to a paramedic on the helicopter the conditions were quite good; clear, cool with a minor breeze. The moon was up and there was good visibility.

1. The paramedic was winched down the helicopter onto the rock platform. He saw an EPIRB in a shoe on a rock fairly high up out of any water. He saw another shoe in a crevice. The deceased was face down winched between some rocks, in amongst the waves so the paramedic could not attempt a retrieval. The appellant was standing on a rock a number of feet back.

1. The paramedic moved the appellant 25 metres back to be safe from the waves. He had a conversation with the appellant in which the appellant said it was his fault as he had brought the deceased away camping for the weekend and now she was dead. The paramedic asked the appellant if he had moved the deceased, to which he replied "no". The appellant appeared to be somewhat confused, very nervous, shaking, severely distressed, nauseated and dry reaching. He was not injured. The paramedic gave evidence that the appellant's clothes were dry, not wet.

1. The appellant was winched up to the helicopter and flown to St George Hospital at Kogarah, arriving at 11.05 pm. During the helicopter flight the appellant did not say much. On arrival the appellant looked like he was in shock, he was quiet, staring off and teary at times.

1. At St George Hospital two nurses noted the appellant was wet from the knees down. Whilst being examined by a nurse the appellant said "We have only been married for six months". He then placed his head in his hands and sobbed. He said he did not have any next of kin.

1. The deceased's body was subsequently retrieved by a second helicopter operation. When the appellant formally identified the deceased he began crying loudly and hugged her for about 30 seconds.

1. The appellant had a recorded interview with the police on 25 March 2005. At the end of the interview the appellant said, "You know, I feel as though I'm doing, I feel as though I'm doing her a great disservice when I can't show the, can't show my emotions, like I want to, when, you know, but I just, I don't, I can't find it in myself now at this stage to have anything just waffling forget it."

The post mortem

1. A post mortem examination of the deceased was conducted at 9.30 am on 26 March 2005. The autopsy report stated that the cause of death was multiple injuries, with significant injuries to the head, trunk and limbs. A pathologist specialising in neuropathology found the deceased's brain had sustained injury due to trauma. Bruising on the deceased's right upper arm and left upper arm was consistent with either the fall itself or being vigorously held. There was no significant natural disease. There was a blood alcohol level of 0.02. There was no other detection of common drugs that would cause impairment.

1. A clinical forensic pharmacologist, Dr Judith Perl, gave evidence. She said that, due to the possibilities of contamination and given the results of other samples taken from fluid in the deceased's vitreous humor, on the balance of probabilities there was no alcohol in the deceased's body at the time of her death. Dr Perl gave evidence that even if she had a blood alcohol level of 0.02 there would not have been any measurable level of impairment in terms of co-ordination, steadiness on the person's feet or normal psychomotor functions. Dr Perl did not expect an anti-histamine tablet to have had an impairing effect upon the deceased to any significant degree.

1. A scientific officer working for the Police Forensic Services Group examined the deceased's clothing and concluded that the jeans and belt worn by the deceased were done up when the damage to the clothes occurred.

After the incident

1. On 26 March 2005 the appellant sent text messages to Ms Velicanski at 5.11 pm and 5.38 pm.

1. On 27 March 2005 a senior ambulance chaplain, Reverend Ray Green visited the appellant. The appellant appeared traumatised and confused. His responses to questions relating to the funeral arrangements were incoherent and he made no definite decisions. The appellant was agreeable, upon Reverend Green's suggestion, for him to contact the deceased's family. Reverend Green contacted the deceased's son and subsequently was contacted to be told the deceased's family would be claming custody of the body. That same night at 8.20 pm a call was made from the deceased's mobile to vote on the show "X Factor".

1. On 28 March 2005 Mr Grant, acting on behalf of the deceased's son who was executor of the deceased's estate, applied to the State Coroner's Office for a release of the deceased's body on the directions of the executor. The appellant withdrew his claim to not release the body. The appellant's superintendent, Louise Hennessy, visited the appellant and arranged that he would not have to return to work until 14 April, as opposed to 6 April as was on his original roster. Ms Hennessy observed the appellant appeared sad, with redness around his eyes, was constantly wiping his noes and at one stage was crying.

1. On 29 March 2005 the appellant went to a Harvey World Travel store and inquired about brochures on Asian destinations. The appellant then inquired about travelling to Townsville. He said he wanted to travel from 1 April to 6 April and there would be two people travelling, himself and his wife. When asked for the names of the people travelling the appellant gave Ms Velicanski's name. The appellant proceeded to pay for the trip to Townsville.

1. Ms Velicanski confirmed she received a phone call from the appellant on 29 March 2005 asking if she had a passport and whether she would go overseas with him for a holiday. Ms Velicanski said she could not go away because of work commitments but could leave from 1 April to 6 April.

1. On 31 March 2005 Mr Grant received a letter by fax from solicitors acting for the appellant, requesting a copy of the will of the deceased. The same day Neil came and stayed at the Otford residence. Neil had found out about the deceased's death when he received messages of condolence on his phone, which used to belong to the appellant. After reading the messages he went on the internet and found out about the deceased's death. He went to see the appellant to provide support.

1. Neil gave evidence that when he saw the appellant on 31 March 2005 he was "obviously very, very drunk". He was mixing extremely strong drinks, had bloodshot eyes and kept going into silences. Neil had never seen the appellant like that.

1. On 1 April 2005 the appellant and Ms Velicanski went away to Townsville. Neil stayed at the Otford residence. Neil's evidence was that before the appellant left the Otford residence he suggested Neil use his RSVP account while he was away. However Neil said although he tried to use the account it didn't work and after that attempt he did not communicate with anyone on that account.

1. Ms Velicanski gave evidence that in Townsville she and the appellant went to bars, restaurants, the beach, on car trips and to lookouts. They had a sexual relationship during this time. However they had a fight on 4 April and the appellant packed his bags and left.

1. On 5 April 2005 the appellant made a payment to the dating site RSVP in order to communicate with other profiles on RSVP. On 5, 7, 8, 11 and 12 April the appellant's RSVP account communicated with several other RSVP accounts.

1. The appellant did not attend the deceased's funeral which took place on 6 April 2005.

1. On 10 April 2005 Ms Velicanski gave evidence that she went to the appellant's house in Otford to drop off presents she had bought him in Townsville. The appellant told her he had a singles party that night but to wait for her at the house. When he arrived at the Otford residence that night he proposed to her and asked her to move in to the Otford residence with him. Ms Velicanski stayed for some weeks at the Otford residence. She saw no female clothes or toiletries or any sign that anybody else had recently lived there. She once discovered a rates notice with the names "Des and Janet Campbell" as well as a wedding card. The appellant found her reading the card and became very angry and yelled at her. However the appellant convinced her he was not married. At some stage the appellant told her that if the police ever contacted her she should deny knowing him.

1. Within two weeks of the deceased's death one of the appellant's neighbours, Ms McGrath, saw the appellant burning something in his backyard.

1. On 20 April 2005 the appellant signed an agreement for a real estate agent to sell the Otford residence.

1. During the four week period after the death of the deceased the appellant made 12 phone calls and 54 text messages to Ms Velicanski, 30 text messages to Ms Rodgers and 3 text messages to Ms Aldred. One of the text messages to Ms Velicanski was in response to a text message from her inquiring about the camping trip. He responded he did not go because it was too wet.

1. In May Ms Velicanski terminated her relationship with the appellant. In mid-May Ms Rodgers met with the appellant and spent two nights at the Airport Hilton with him. Ms Rodgers gave evidence that the appellant never mentioned Janet, a wife, buying a house in Otford or someone close to him having died.

1. The appellant did not contact any members of the deceased's family. However Ms Marshall gave evidence that over the following few months they attempted to contact the appellant to obtain the deceased's personal property. They tried ringing the appellant, however if he answered the phone, when the family identified themselves he would hang up. The family eventually faxed the appellant sometime in June 2005 saying they were coming to Otford in person.

1. Ms Marshall gave evidence that on 1 July 2005 members of the deceased's family arrived at the Otford residence around 5.00 pm to 5.30 pm. The appellant locked the doors and closed the curtains and drapes. The appellant said he would contact the police if they did not leave his property. When the police came the deceased's family obtained her car. Subsequently they collected a small box of items from the appellant's solicitors.

1. Mr Thompson gave evidence that in July 2005 he visited the appellant at the Otford residence and went to the Otford lookout. The appellant did not mention having been married or his wife having died.

1. On 31 August 2005 the appellant's home was searched. After searching through the photographs on his computer, no photograph of the deceased could be found. There were photographs of Neil, Ms Sanderson and her son, Ms Velicanski and of the appellant's then fiancé (and future wife), Melissa.

1. The appellant's parents learnt of the deceased's death when the appellant telephoned and said something to the effect that the love of his life, that he was going to live with for the rest of his life, had been killed. The appellant did not say he was already married to the deceased.

Expert evidence led at the trial

(a) Associate Professor Rodney Cross

1. Associate Professor Cross gave evidence that he was an honorary member of the Physics Department at Sydney University, holding this position since 2004. He said he had conducted a lot of research into plasma physics and the physics of sport. He said he had been involved in consulting work involving fatal falls from balconies and cliffs and had published extensively on the physics of sport. Associate Professor Cross said he considered himself a "pretty good" biomechanic but was not particularly familiar with the medical terminology of biomechanics, more the mechanic aspect of it.

1. Associate Professor Cross gave evidence that standing on a 26 degree slope was like standing on a tiled roof. He said if someone was standing facing the edge of the roof they would feel slightly unbalanced. He distinguished it from the slope on a travelator at shopping centres which has a maximum allowed incline of around 12 degrees.

1. Taking into account the partial shoe print and broken branches Associate Professor Cross considered the deceased was upright as she went over the cliff, as opposed to crouched or rolling.

1. Associate Professor Cross considered a range of scenarios as to how the partial shoe print could have been left. In a scenario where the deceased was standing, looking at the view, Associate Professor Cross considered she would be in an unstable and uncomfortable position. This was particularly the case if she was standing on just one foot, as indicated by the one foot print. In a suicide scenario, Associate Professor Cross said it was physically possible for the deceased to step down onto the slope and to jump off in a suicide attempt, except for the fact there were branches directly in front of her. He also said it was physically possible the shoe print was left from a scenario where the deceased was doing a cartwheel. However, he added that most people cannot cartwheel. Associate Professor Cross said it was not physically possible that the shoe print was caused in circumstances where the deceased was sitting on a rock and put one foot down, as the rock in question was too far away from the shoe print. Associate Professor Cross said he would have expected to see slip and slide marks on the ground if she had been slipping or sliding.

1. Associate Professor Cross also considered a scenario involving the deceased tripping. There were two rocks approximately one metre from the partial shoe print. They were both 50 millimetres above the rest. One of the rocks was on a boundary between a 16 degree and 26 degree slope.

1. Associate Professor Cross said the partial shoe print could have been caused if the deceased was walking at a brisk or medium walking pace, tripped on one of the rocks and then stepped on the soil a metre beyond. Associate Professor Cross agreed the degree of the slope on which the person was walking would have a small effect on the distance over which a person could recover their balance or the pace at which a person would have to be moving to end up stepping on soil a metre beyond the trip point. He said he could perform experiments to quantify the effect but had not yet done such experiments.

1. Associate Professor Cross considered the deceased would have tripped on the rock that was closest to the shoe print. Associate Professor Cross said walking at a medium to fast pace in the vicinity of either of the rocks, close to the cliff would be perilous or dangerous. Associate Professor Cross said the shoe print was inconsistent with tripping on a shoelace. However he conceded in cross-examination that it was possible for a person who trips on their shoelace to regain their balance even momentarily, depending on how firmly they stepped on the shoelace.

1. In dealing with a scenario where the deceased was pushed, Associate Professor Cross said he considered the partial shoe print was more likely to be the second or third step of the deceased, rather than the first step she would take to recover from the push. Associate Professor Cross said the partial shoe print could in that way be consistent with the deceased being vigorously held by the arms by a person who ran a few steps towards the edge with her and then pushed her.

1. In cross-examination Associate Professor Cross was asked whether he was familiar with the position of the foot when it was in a state of plantarflexion. He stated this was a biomechanical term and he was not particularly familiar with the medical terminology of biomechanics, although he was familiar with the mechanical side.

1. Associate Professor Cross also agreed in cross-examination that a person who slips on a shoelace does not necessarily fall flat on his or her face but said it was the most likely outcome. He also agreed that a person's ability to regain his or her balance from a trip depended on a lot of variables. These included the person's reflexes, their physical condition at the time (such as whether they were suffering stiffness or soreness), whether they were fatigued or relaxed in terms of their concentration and the evenness or unevenness of the terrain.

1. Associate Professor Cross agreed a fit athlete would recover more quickly than an unfit, non-athletic person. He also agreed that the partial shoe print was consistent with a person standing at least slightly forward, although he said it was also consistent with other possibilities. He agreed that a person walking at a moderate walking pace who was "ankle-tapped" could take further steps in an attempt to recover from the trip before falling to the ground. Similarly a person tripping on a shoelace, over a rock or some Spinifex could have the same reaction.

1. Associate Professor Cross was subsequently called for further examination. By that time he had been provided with Mr Beck's report. He agreed that the two most likely scenarios were that the deceased was tripped as she was walking towards the edge of the cliff or that she was pushed.

1. However, he disagreed with Mr Beck's opinion to the extent it suggested it was more likely the deceased tripped. Associate Professor Cross considered the fact that the partial shoe print was of a toe print was the predominant reason Mr Beck came to the conclusion a trip was more likely than a push. He was of the opinion that such a fact was not decisive because the sole reason there was only a toe print may have been because the soil conditions simply prevented a heel print (or complete foot print) from being created.

(b) David Beck

1. David Beck gave evidence at trial that he was a qualified mechanical engineer and biomedical engineer. He said the field of Biomedical Engineering was the application of the anatomy and physiology of the human body to a specific field of engineering, in his case, the mechanics of the human body in terms of its movement and reactions.

1. Mr Beck said based on the partial shoe print the foot was in plantarflexion, which he likened to a woman walking in high heels. Mr Beck was of the opinion that when the shoe print was made the deceased's body was slightly, to well, forward.

1. In cross-examination Mr Beck considered it unlikely the reason the partial shoe print was a toe print was because of the soil conditions. This was because he had inspected the soil and said it was very soft and that people usually apply more pressure to their heel than to their toe. He said notwithstanding twigs and debris there still should have been some imprint of the heel on the soil. However he conceded he did not realise the significance of some tufts of grass near the partial shoe print which could have impeded the formation of a complete shoe print.

1. Mr Beck gave evidence that he would rule out the scenario of the deceased having slipped. He said the evidence was equally consistent with the deceased having been pushed or having tripped.

1. With respect to the tripping scenario, Mr Beck identified numerous trip points, one being 1.5 metres from the cliff edge. However he did note there were other trip points such as Spinifex and rocks that were in a three metre radius of the cliff.

1. Mr Beck gave evidence that the ability, speed and distance at which a person was able to recover from a trip was affected by where in the "swing" of a person's foot they tripped, the age of the person, stiffness or fatigue in the person, their fitness and weight and the decline of the terrain. He said that males generally recover from trips faster and are less likely to fall to the ground and injure themselves than females. Mr Beck considered the reaction time was somewhere between 0.3 and 0.4 seconds.

1. Mr Beck said that taking the trip point as 1.5 metres from the cliff, on an incline of 14.9 degrees, he conservatively estimated it would take a woman of the age and weight of the deceased 4.7 metres to recover from a trip. This was if the trip occurred at the most conservative part of the swing in the person's foot, namely a trip mid swing. He estimated if the slope was 17 degrees it might take her 5 metres and on a 26 degree slope 7 metres to recover from the trip.

1. Mr Beck considered it would not have an effect on his estimations if he were to assume that the deceased was of reasonable fitness as the trip points were so close to the cliff edge that even if she was fitter she still wouldn't have been able to recover in time to avoid a fall. In cross-examination Mr Beck clarified his estimations were based on a study which showed the recovery time of young active men in their 20s tripping when walking at a pace of 1.1 metres per second (or 4 kilometres per hour). Mr Beck used this study and then made allowances for the deceased's gender and age to generate his estimates. He said the deceased would have been walking a bit slower than four kilometres per hour.

1. Mr Beck also gave evidence that the ability of a person's vision to distinguish colours diminishes during twilight hours or as light diminishes.

The Crown case and the directions to the jury

1. To understand the submissions on Grounds 1 and 3, it is necessary to say something about the manner in which the Crown sought to prove its case and the directions given by the trial judge to the jury.

1. In opening the Crown put its case as follows:

"Now, ladies and gentlemen, so far as the law is concerned and the charge that the accused is facing in this particular trial is very, very simple and straightforward.

The elements of a charge of murder are, firstly, a death. In this case the death is the death of Janet Campbell, the accused's wife. There will be no dispute that the death occurred.

The second element is that the death must be occasioned by an act of the accused. There must be some act of the accused which caused the death.

That is very much in issue in this trial.

Thirdly, the accused must have performed that act intending to cause the death of the deceased, as we call the person who has died. In this case, also, that is very much in issue. The real issue in this case is: Did Janet Campbell die by virtue of a tragic accident or, alternatively, has the Crown proven, beyond a reasonable doubt, that she died because she was pushed over a cliff deliberately by the accused?

If she was pushed over the cliff deliberately by the accused, I don't think anybody would suggest that he had anything other than an intention to kill her. The cliff, over which she went, was something like 50 metres high. Anybody pushing another human being over a cliff of that height must intend to kill that other person.

...

Ladies and gentlemen, when Janet Campbell went over the cliff, she left a partial impression of a single shoe print in the steep area right next to the steep drop and right next to this partial shoe impression, the police found the two branches from that tree just to her left had been recently broken off at about chest height.

When the shoe print was found by the police, they took a plaster cast of it and that plaster cast was later compared with Janet's shoes and you will hear expert evidence that it is consistent with being part of the front portion of either the left or right shoe print with her feet facing forwards.

If you look at this photograph in your folders, Detective Moon is actually standing in the 48-degree slope and his hand is at the base of the 26-degree slope to next [sic] the base of that tree and he is pointing out, as I understand it, in that photograph where the partial shoe impression was found. When we go to the scene, there will be something in the ground to mark where that shoe impression was found and Detective Moon will be there, harnessed like you will be not down there, but actually at the top just where this rock is. He'll then take you up to the edge where this piece of rock is (indicated), so you can see over where the shoe print was and you will see the broken branches at about chest height.

The Crown case is that, to have caused a clear, unsmudged shoe print in that section of the steep cliff edge, Janet must have gone over the cliff in an upright position, facing forwards. If she had somehow, inexplicably not known where the cliff was and put a foot in that section, she would have slipped, slided, there'd be slide marks, there would not be a clear - when I say 'clear', a defined shoe print. The defined shoe print occurred, the Crown says, because somehow - we don't know how - the accused got her to stand near the edge of the cliff and forcefully pushed her over and she, unexpectedly, going towards the cliff, naturally puts her foot in front of her, goes down, makes the shoe impression and of course she can't stop herself, she grabs the only thing which is there, which is that tree, breaks it off and then goes over the cliff. If she had slipped, it would have been quite different.

...

Ladies and gentlemen, we now come to the period after Janet's death. And the Crown case is that the accused was totally and utterly unaffected by the death of his new wife.

The Crown case is that that is because it was not an unexpected death, it was not a tragic accident, but, rather, it was the result of his long-term plan."

1. The Crown case as opened thus postulated two scenarios. Either the appellant pushed the deceased over the cliff or she slipped and fell in a tragic accident.

1. Prior to the closing addresses, the following exchange occurred between the trial judge and counsel:

"HER HONOUR: Up until now, the parties have almost entirely concentrated on whether it was a push or a trip. It occurred to me that it is, consistent with the facts, if the jury accepted the facts - and, at this stage, they seem to be uncontradicted in terms of the features of the site and things of that nature, the lightning conditions and things of that nature - it seems to me to be open for the jury to find that the accused may well have either pushed or held Ms Campbell or Ms Fisicaro roughly by the arms and propelled her towards the cliff and then she tripped in the momentum that was initiated by the accused and fell over the cliff, in other words, I don't see that a push and a trip is necessarily inconsistent with the facts, nor do I think that it is inconsistent with the Crown case and likely to form murder.

Does anyone want to say anything about that? I am just raising it because I don't want it to come up later on and then the parties are caught unawares.

HUGHES: Your Honour, I have to say if that scenario was entertained, that is still consistent with being a push and it is still pushing, he would still be liable for murder, if as a consequence of that, she tripped, that was the intention as to the end result.

HER HONOUR: That's right. All I wanted to say was I don't think that they are mutually exclusive.

HUGHES: No, that's my position. I think your Honour is quite right.

HER HONOUR: Do you want to say anything about it, Mr. Crown?

CROWN PROSECUTOR: No, I agree."

1. The Crown Prosecutor in his closing address did not refer to this possibility but maintained the case that the appellant deliberately pushed the deceased over the edge. He did not embrace an alternative submission; namely, that the jury could find that the appellant pushed the deceased towards the cliff resulting in her tripping and falling over the edge, consequently giving rise to liability on the basis of reckless indifference to human life.

1. In her directions to the jury, the trial judge gave the following directions (the subparagraph references have been inserted by me for ease of reference):

"(a) The accused maintained in his record of interview that he did not see what happened. You cannot speculate why Mrs Campbell was in close proximity to the cliff edge, but we know that she was there. We know that she was afraid of heights, we know that she was not an athletic person, we know that she was unfamiliar with bush terrain; we know that she was not affected by alcohol, although she was an inexperienced drinker, we know her jeans have not been undone, we know that there was enough light so that she could see the cliff edge and the vegetation and the general nature of the terrain. We know that she was close enough to the cliff edge so that she could be pushed over the edge or close enough, so that if she tripped, while facing down the slope, she was unable to recover her balance and she fell over the edge; or she was close enough so that a firm push towards the edge, followed by a trip, propelled her over the edge where her shoe impression was found. We know that she tried to save herself by grasping a nearby branch of a tree and that it broke in the attempt.

You will appreciate that counsel in this trial have concentrated on one of two scenarios: Either Mrs Campbell was pushed; or she tripped. But I just want to remind you that they are not mutually exclusive. Even if the accused pushed Mrs Campbell towards the edge of the cliff so forcefully that she tripped as she was propelled forward and then was unable to recover her balance before going over the edge, that would nonetheless meet the legal requirements of murder, because the accused's act in pushing Mrs Campbell is a substantially contributing cause of her death.(Summing Up 10/05/2010 pg 8-9)

...

(b) Now, I am going to outline to you the ingredients of the charge of murder.

The crime of murder has been committed by the accused if the Crown has established beyond reasonable doubt each of the following: Firstly, that it was the deliberate act of the accused that caused the death of the deceased; secondly, that the act causing death was done with an intention to kill the deceased or to inflict grievous bodily harm upon her which is simply another expression for really serious physical injury; or with reckless indifference to human life.

Just in relation to that last phrase, reckless indifference to human life, an act is done with reckless indifference to human life if the accused foresaw or realised that his act would probably cause the death of the deceased, but he continued with that act regardless of the risk of death.

Now, these two ingredients or elements if you like, namely that it was the deliberate act of the accused and that the deliberate act was done with the particular intention or with reckless indifference to human life, they are the two elements that the Crown must prove beyond reasonable doubt before you could return a verdict of guilty against the accused.

May I suggest that the real area of dispute is concerned with the first element, namely: Was it the accused's deliberate act that caused Mrs Campbell to fall from the cliff to her death; or was it nothing more than a tragic accident?

It has not been suggested that, if someone deliberately pushes another person from a 50-metre cliff onto a rock platform below, that such an act, deliberate act, would not be done with the intention to kill or to at least cause very serious injury. That is not a proposition that could be seriously argued by anyone. Similarly, a deliberate push towards the edge of such a cliff would demonstrate very considerable reckless indifference to human life.

So, may I suggest to you that, if you were to find that the accused did deliberately push her from the cliff, there could really be no serious dispute about what his intention was at the time given the nature of the height of the cliff and the terrain below. (Summing Up 10/05/2010 pp 18-19)

...

(c) In some cases a person's acts may themselves provide the most convincing evidence of his intention at the time. Where a specific result is the obvious and inevitable consequence of a person's act and where the person deliberately does that act, you may readily conclude that he did that act with the intention of achieving that particular result.

Now, that is, in effect, what the Crown argues here. The Crown says you would find beyond reasonable doubt that the accused intentionally pushed Mrs Campbell or held her firmly from behind and steered her to the edge of the cliff; that she reached what has been called 'the point of no return' and he did that with the intention of killing her; the Crown asks you to infer or to conclude that the height of the cliff and the nature of the surface onto which she fell demonstrated that the accused intended that she would be killed or, at the very least, very seriously injured.

(Summing Up 10/05/2010 pp 20)

(d) The third state of mind which is the basis of murder is referred to, in legal terms, as 'reckless indifference to human life'. So if, at the time the accused committed the act that caused the death of the deceased, he foresaw or realised that his act would probably cause the death of the deceased, that he continued to commit that act regardless of that consequence, then the accused would be guilty of murder.

What is at the nub of this mental state is that the accused must contemplate or foresee that death was a probable consequence or likely result of what he was doing. If he did come to that realisation, but determined to go on and commit the act, regardless of the likelihood of death resulting and death does in fact result, then he is guilty of murder.

The conduct of a person who does an act that he knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, to be just as blameworthy as a person who acts with an intention to cause death.

For this basis of murder, the accused's actual awareness of the likelihood of death occurring must be proved beyond reasonable doubt. It is not enough that he believed only that really serious bodily harm might result, or that he merely thought that there was a possibility of death. Nothing less than a full realisation on the part of the accused that death was a probable consequence or the likely result of his conduct is sufficient to establish murder in this way.

Again, you are concerned with the state of mind that the accused had at the time he committed the act causing death. It is for you to determine what the act causing death is and, in the context of the Crown case, the Crown has alleged it is the accused deliberately pushing Mrs Campbell from the edge of the cliff.

May I remind you, of course, there is no direct evidence of what the accused's state of mind was, such as a confession or statement made at the time, but, of course, to state the obvious: The accused has always denied playing any part in his wife's death."(Summing Up 10/05/2010 pp 20-21)

1. With that background it is convenient to deal with the grounds of appeal relied upon.

Ground 1

"A miscarriage of justice has been occasioned by the Trial Judge advancing, for the first time in the summing up, a second and alternative scenario, which was not relied upon by the Prosecution, which amounted to liability for murder, namely reckless indifference to human life."

The submissions of the parties

(a) The appellant

1. The appellant submitted that it was the trial judge who introduced for the first time the hypothesis that the appellant, acting with reckless indifference to human life, pushed the deceased who tripped and fell over the edge of the cliff.

1. The appellant submitted that the defence was deprived of an opportunity to respond to this alternative basis of liability and had conducted its case in a manner aimed at undermining the Crown case as opened and advanced at the trial. The appellant in his written submissions did not indicate in what fashion the trial would have been conducted differently.

1. The appellant also submitted that the irredeemable prejudice which occurred was that "it entirely undermined the forensic mileage the defence had made in cross-examination". He submitted that it was the Crown case that the appellant somehow managed to get the deceased to stand near the edge of the cliff and pushed her over to her death. He submitted the Crown case on this basis was open to the exclusion of accident. This was because the "unsmudged" footprint was consistent with the deceased having been upright and facing forward at the time the print was left, which in the Crown case was inconsistent with a trip or a slip.

1. The forensic mileage that the appellant was referring to in that context, was the concession by Associate Professor Cross that one of the two most likely scenarios was that the deceased tripped as she was walking towards the edge of the cliff. The appellant submitted that the introduction of the scenario of a push with reckless indifference to human life followed by a trip and a fall, undermined this evidence and the evidence of the appellant's own expert, Mr Beck, who stated that the possibility of a trip or a push were equally consistent.

1. In particular, the appellant contended that the defence case "neutralised the evidential significance of the evidence of Associate Professor Cross in cross-examination". He referred to the following concessions which he said were made by Associate Professor Cross:

"He was not a biomechanic, however the witness classified himself as 'a pretty good biomechanic, but on the mechanics side of biomechanics'.

A person who trips on a shoe lace does not necessarily fall flat on their face.

The ability to recover from a trip was affected by many variables.

The print was confined to the toe area of the foot, which was not confined to the deceased being in a stationary position at the time it was laid down.

The most likely scenarios were that the deceased tripped as she was walking towards the edge of the cliff or that she was pushed, albeit that he did not prefer a trip because a trip required [a] moderate pace about which he gave evidence in the demonstration before the jury."

(References omitted).

1. He contended the unchallenged evidence of Mr Beck was that a push or a trip were equally consistent. He said that this evidence was also undermined by the alternative scenario put by the trial judge.

1. In making this submission the appellant relied on what was said by this Court in Reg v Solomon [1980] 1 NSWLR 321, where it was held that a trial miscarried by reason of the introduction by the trial judge of reckless indifference to human life as a basis for a finding of guilt of murder. He also referred to the summary of the relevant legal principles by Johnson J in Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88.

1. Accordingly, the trial judge directed the jury as follows:

"We know that she was close enough to the cliff edge so that she could be pushed over the edge or close enough, so that if she tripped, while facing down the slope, she was unable to recover her balance and she fell over the edge; or she was close enough so that a firm push towards the edge, followed by a trip, propelled her over the edge where her shoe impression was found. We know that she tried to save herself by grasping a nearby branch of a tree and that it broke in the attempt.

You will appreciate that counsel in this trial have concentrated on one of two scenarios: Either Mrs Campbell was pushed; or she tripped. But I just want to remind you that they are not mutually exclusive. Even if the accused pushed Mrs Campbell towards the edge of the cliff so forcefully that she tripped as she was propelled forward and then was unable to recover her balance before going over the edge, that would nonetheless meet the legal requirements of murder, because the accused's act in pushing Mrs Campbell

is a substantially contributing cause of her death." (italics added)

1. Later, in the summing up, she said:

"It has not been suggested that, if someone deliberately pushes another person from a 50-metre cliff onto a rock platform below, that such an act, deliberate act, would not be done with the intention to kill or to at least cause very serious injury. That is not a proposition that could be seriously argued by anyone. Similarly, a deliberate push towards the edge of such a cliff would demonstrate very considerable reckless indifference to human life." (italics added)

The phrase "towards the edge of the cliff" (as distinct from "over the cliff") was repeated more than once. The phrase has featured in the submissions on behalf of the appellant, as hypothesising a factual scenario different from that advanced by the Crown.

1. In fact, it did not. The focus of the trial was on whether the Crown had proved that the appellant pushed his wife, causing her to fall to her death. The focus of the trial was not on the immediate consequences of a push - (if the jury found that that had occurred) - that is, whether the push caused Ms Campbell to fall over the cliff, or whether it caused her to stumble (and trip) before falling. Either way, the appellant would have been guilty of murder.

1. The direction was given, in my opinion, in order to deflect the jury from the distraction of the evidence concerning the shoe print, which in the end went nowhere. It allowed a reconciliation of evidence that Ms Campbell might have tripped, with evidence implicating the appellant in the cause of the trip.

1. The acquiescence of counsel in the discussion with the trial judge indicates that that was how he perceived it.

1. It was asserted, in the written submissions filed on behalf of the appellant, that:

"3.11 The irremediable prejudice to the defence in casting this alternative basis for liability is that it entirely undermined the forensic mileage the defence had made in cross-examination."

There was, however, no identification of "the forensic mileage" made by the defence and said to have been "undermined". Trial counsel did not perceive any adverse impact on the effectiveness of his cross-examination.

1. In those circumstances, in my opinion there is no foundation in this aspect of Ground 1.

1. The second aspect of Ground 1 concerns the directions on murder by reckless indifference to human life.

1. Section 18(1)(a) of the Crimes Act 1900 (NSW) provides as follows:

"18 Murder and manslaughter defined

(1)

(a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years.

(b) Every other punishable homicide shall be taken to be manslaughter."

1. Murder is therefore committed when the act (or omission) causing death was done (or omitted):

(i) with reckless indifference to human life;

(ii) with intent to kill or inflict grievous bodily harm;

(iii) in an attempt to commit, or in the course of the commission of, or immediately after the commission of, an offence punishable by imprisonment for life or for 25 years (felony murder).

Category (iii), felony murder, is of no present relevance.

1. Proof of murder by reckless indifference to human life requires proof by the Crown that the act causing death was done by the accused person in the knowledge of the probability that that act would cause death: The Queen v Crabbe [1985] HCA 22; 156 CLR 464; Royall v The Queen [1991] HCA 27; 172 CLR 378.

1. The decision in Crabbe finally established that, in order to prove murder by reckless indifference to human life, it is not sufficient that the Crown prove that the accused adverted to the possibility that the act (or omission) would cause death. Nothing less than proof that the accused was aware of the probability that that act (or omission) would cause death would suffice. That issue was the focus of the decision. In the course of the judgment (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ), the Court recognised that there may be cases in which the Crown falls short of proving that the act (or omission) causing death is done with an actual intention to kill or to inflict grievous bodily harm, but nevertheless knows of the probability that it will cause death or grievous bodily harm.

(That latter statement must be read in the light of the judgment of Mason CJ in Royall, in which his Honour said:

"Section 18 departs from the common law in that it requires foresight of the probability of death; foresight of the probability of grievous bodily harm is not enough: Reg v Solomon [[1980] 1 NSWLR 321].")

1. The directions given by the trial judge in this respect are extracted in the judgment of the Chief Justice. It is not suggested that they are other than perfectly correct.

1. The facts in both Crabbe and Royall were somewhat unusual. In Crabbe, the Crown alleged that the accused (Crabbe) in a state of intoxication, drove a prime mover with a trailer through the wall of a motel in Ayers Rock and into a bar in which patrons were drinking. Five patrons were killed and many injured. The Court said:

"There has been in this Court some difference of opinion as to whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm ... or whether knowledge of a possibility is enough." (italics added)

1. In Royall, the female victim fell from the bathroom window of a sixth floor flat in Kings Cross. The evidence showed that, earlier, the accused had assaulted her, with some degree of ferocity. The Crown put its case in three alternative ways:

• the accused pushed the victim out of the window;
• the accused attacked the victim in the bathroom, and she fell in the course of avoiding the attack;
• the victim, with a well-founded and reasonable apprehension of life threatening violence, jumped from the window.

1. In that case, the principal issue under consideration was causation. The various members of the Court, in separate judgments, adverted to the question of murder by reckless indifference to human life as distinct from murder with intent to kill or inflict grievous bodily harm.

1. Crabbe and Royall are important for present purposes because they contain indications that the state of mind necessary to establish murder by reckless indifference to human life is not co-extensive with the state of mind necessary to prove murder with intention to kill or inflict grievous bodily harm. As will be seen, however, the distinction may be marginal.

1. In this case, the trial judge was at pains to direct the jury in accordance with Crabbe. She explained that, before the appellant could be convicted of murder on the reckless indifference scenario, it was necessary to prove that he was aware of the probability (as distinct from possibility) that the act with which he was accused would cause his wife's death. In the circumstances of this case, there is very little - if any - difference between doing an act with an intention to kill (or to inflict grievous bodily harm) and doing an act in the recognition that it would probably cause death. Indeed, in Crabbe, the Court said:

"... The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur ... It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word 'probable' means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm."

Their Honours went on to distinguish between recognition of the probability of the consequence of death with the possibility of the consequence of death.

1. In Royall, McHugh J said:

"The state of mind of a person who knows that his or her act or omission, if done or omitted, will probably cause death cannot be distinguished in terms of moral culpability from the state of mind of the person who intends to kill or inflict grievous bodily harm. But there is a real distinction in terms of moral culpability between the latter two states of mind and the state of mind of a person who acts or fails to act even though he or she knows that there is a possibility that the act or omission might cause death."

1. The trial judge emphasised that the real area of dispute lay in whether it was a deliberate act of the appellant that caused Ms Campbell to fall, or the fall was "nothing more than a tragic accident". That was undoubtedly correct.

1. As I have said, it was always accepted that, if the Crown were able to prove that the appellant deliberately pushed his wife from (or towards) the cliff, the only inference available was that he did so with the relevant (actual) intention. Whether he did so was the central issue in the trial. Equally, it was plain that, if he did so, he was aware of the probability of death ensuing.

1. In my opinion, given the manner in which the trial was conducted by the parties, introduction of the reckless indifference scenario was surplusage. There was no direct evidence of the appellant's state of mind (the appellant did not give evidence in the trial), and there was no basis in the evidence to distinguish between actual intention and recognition of the probability of death.

1. In Pemble v The Queen [1971] HCA 20; 124 CLR 107, Barwick CJ said:

"Of course, it is not appropriate in every case to give a direction as to reckless indifference to the consequence of a contemplated act as an aspect of the crime of murder. Indeed, occasions for doing so where there is material from which an intent to kill can be inferred, must be unusual. A trial judge, in my opinion, must be careful in a case of that kind to examine the evidence closely to satisfy himself that that evidence could support a conclusion that the accused acted with reckless indifference. A direction as to that aspect of murder when there is not material to warrant a conclusion that the accused acted with reckless indifference is likely to cause confusion in the minds of the jurymen; and ought not to be given. However, in my opinion, in this case the jury, if they were unwilling to infer an intent to kill or to do grievous bodily harm were entitled to accept the view that the appellant foresaw the possible consequences of the discharge of the rifle if it discharged or was discharged whilst he was in proximity to the deceased; that he must have known that the rifle was loaded; and that he approached the deceased with the cocked sawn-off rifle in that frame of mind and that he pulled the trigger to discharge the weapon: or they could accept the appellant's statement that he stumbled with the rifle held aloft, at a time when he merely wished to frighten her. On either view they were entitled, in my opinion, to conclude that the approach to the deceased in such a fashion was an act done with reckless indifference to human life. I would reject therefore the submission that the case was not one in which reference to murder by recklessness could properly be made."

1. In Royall, Deane and Dawson JJ dealt with a submission that murder by reckless indifference to human life had inappropriately been left to the jury. Their Honours said:

"It has, of course, frequently been pointed out that it is not appropriate in every case of murder to direct the jury upon reckless indifference: see, eg, Pemble v The Queen [[1971] HCA 20; 124 CLR 107]. Be that as it may, the mere fact that reckless indifference is left to the jury when it is unnecessary to do so, does not result in a mistrial if, in the circumstances, the direction would not have misled the jury or have been likely to cause confusion in their minds. In this case, having regard to the way in which the trial judge dealt with the subject, we do not think that the jury would have been misled or confused by his remarks, even if it would have been better had the trial judge confined the question of intent to intent to kill or to inflict grievous bodily harm. Of course, if reckless indifference is left to the jury, they must be properly directed upon the subject and the applicant complains that in this case the trial judge's direction was incorrect ..."

Their Honours went on to hold that the jury had been adequately directed on the subject.

1. So it is in the present case. Like the Chief Justice, I am of the view that the introduction of the concept of murder by reckless indifference did not cause a miscarriage of justice. I also would reject Ground 1 of the appeal.

Grounds 3 and 4

1. With respect to Grounds 3 and 4 of the appeal, I agree with the Chief Justice that the evidence did not establish that Associate Professor Cross was appropriately qualified to give evidence as a relevant expert. It is therefore not necessary to proceed to a determination of Ground 4. However, I should observe that I have some difficulty with the proposition that the findings of this Court, in a different case, concerning Associate Professor Cross' credibility or reliability (assuming he was otherwise qualified to give the evidence) amount to evidence (fresh or otherwise) that could be taken into account in determining the admissibility of his evidence: see Evidence Act 1995 (NSW), s 91. In my opinion the judgment of this Court in Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581 was and remains irrelevant to the admissibility of Associate Professor Cross' evidence. I would therefore reject Ground 4 of the appeal (if it were necessary to decide it).

Ground 5: the evidence of Ms Ingham

1. Ms Ingham gave evidence of a relationship which she had with the appellant that bore marked similarities to the relationship of the appellant and Ms Campbell. Her evidence was admitted both as tendency evidence under s 97 of the Evidence Act, and as evidence going to establish a motive on the part of the appellant to murder his wife.

1. The direction given to the jury differentiated between the standard to which her evidence had to be proved if it were to be used by the jury as tendency evidence (to the criminal standard) and the standard to which it had to be proved if it were to be used by the jury as proof of motive (in which case the criminal standard did not apply).

1. In this Court, it was accepted by the Crown that the evidence of the facts relied upon as tendency is to be proved beyond reasonable doubt. Accordingly, no argument has been directed to, or against, that proposition. This is not, therefore, the occasion to consider whether it is or is not correct. For my part, I would not wish to be seen to assent to the general proposition that evidence tendered as tendency evidence in a criminal trial must, in contrast with other circumstantial evidence, be proved beyond reasonable doubt. I wish to reserve consideration of that question, which is of considerable importance.

1. Tendency evidence is a species of circumstantial evidence. It is well established that facts relied upon as part of the circumstances in a circumstantial case must be proved beyond reasonable doubt when they are indispensable intermediate steps in a chain of reasoning towards an inference of guilt: Shepherd v The Queen [1990] HCA 56; 170 CLR 573, per Dawson J at p 579, and see Mason CJ at p 575, but not otherwise.

1. The evidence of Ms Ingham did not fall into the "indispensable steps" category. Her evidence that the appellant had behaved towards her in a manner that bore similarities to the manner in which he had behaved towards his wife did not constitute an indispensable link in the chain of reasoning towards guilt. It was merely another circumstantial fact (if accepted) to go into the mosaic constituted by the circumstantial case. Why tendency evidence should, so far as the standard of proof is concerned, be treated differently to other circumstantial evidence is not apparent to me.

1. It may be that the proposition that "tendency evidence" tendered by the Crown in a criminal trial must be proved beyond reasonable doubt derives from the various judgments of the High Court in HML v The Queen [2008] HCA 16; 235 CLR 334: see also DJV v The Queen [2008] NSWCCA 272; 200 A Crim R 206; R v Doyle [2014] NSWCCA 4 at [129].

1. If HML is the source of the proposition, then, in my opinion, the proposition is questionable, for a number of reasons.

1. In HML, the accused was charged in South Australia with two counts of unlawful sexual intercourse with his daughter, who was under the age of 12 years. Consent (or absence thereof) was accordingly not an issue. The issue in the High Court concerned evidence tendered by the Crown of other acts of sexual impropriety alleged against the accused which were not the subject of charge. The evidence was referred to as evidence of "uncharged acts", a subject that has frequently troubled courts of criminal appeal (and trial courts). There is a marked absence of unanimity in the judgments in HML.

1. Hayne J (with whom Kirby J, at least, generally agreed) concluded that evidence of sexual conduct other than the offences charged may be admissible under the tests stated in Pfennig v The Queen [1995] HCA 7; 182 CLR 461, but may be used by the jury as a step in reasoning towards guilt only if the jury is satisfied beyond reasonable doubt "of the premise for that chain of reasoning": at [244]. But Hayne J emphasised (at [102]) that his conclusions were confined to cases in which absence of consent was not an element of an offence being tried. That caveat is important.

1. Even more importantly, HML was an appeal from a jurisdiction in which the issue fell to be determined on common law principles. South Australia has not adopted what was hoped would be uniform evidence legislation.

1. In NSW, it is to the Evidence Act that judges must look for guidance on the question of the admissibility (and standard of proof) of, inter alia, tendency evidence: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700.

1. I can find nothing in the Evidence Act to support the proposition that evidence tendered as tendency evidence in a criminal trial must be proved beyond reasonable doubt before it can be used in proof of an offence.

1. Moreover, it is not at all clear, from the judgments in HML, what it is that must be proved beyond reasonable doubt. Under s 97 of the Evidence Act, evidence may be admitted to prove a tendency on the part of an accused (or other person), from which it might be inferred that that person acted in conformity with that tendency - that is, in proof of the offence charged. Is it the facts of which evidence is tendered to prove the tendency that must be proved beyond reasonable doubt? Or is it the tendency itself?

1. These questions cannot here be resolved. I emphasise that these remarks are not intended to express any concluded views. They are intended only to signal that I do not accept (or reject) the proposition that, in a criminal case, evidence tendered by the Crown as tendency evidence must be proved beyond reasonable doubt. That remains a live issue to be determined in an appropriate case. This is not that case.

1. It may be that the direction given to the jury was unduly favourable to the appellant. In any event, I agree with the Chief Justice that the direction was clear, and would not have confused the jury. I agree that, pursuant to r 4 of the Criminal Appeal Rules (NSW), leave to argue this ground of appeal should be refused.

The proviso

1. Finally, I agree with the Chief Justice that, with respect to the error in admitting the evidence of Associate Professor Cross, the proviso to s 6 of the Criminal Appeal Act 1912 (NSW) ought to be applied. I do so for the reasons given by his Honour, and for the additional reason that the evidence given by Associate Professor Cross did not, when analysed, advance the Crown case. As mentioned above in relation to Ground 1, both experts agreed that Ms Campbell could have fallen from the cliff by reason of being pushed, or by reason of having tripped. Neither proffered a preference.

1. The circumstantial case put forward by the Crown was extraordinarily powerful. It is set out in some detail in the judgment of the Chief Justice and does not call for repetition.

1. Accordingly, I agree that the appeal against conviction ought to be dismissed.

1. HIDDEN J: I agree with the order proposed by the Chief Justice and with his Honour's reasons, as I do with the additional observations of Simpson J.

**********

Amendments

02 September 2014 - Line 2 "deceased" changed to "appellant"

Amended paragraphs: [34]

02 September 2014 - Line 2 "deceased" changed to "appellant"

Amended paragraphs: [268]

Decision last updated: 02 September 2014