Kaliyanda v R

[2007] NSWCCA 300

Appeal Outcome: Special leave refused by the High Court -1 August 2008

New South Wales

Court of Criminal Appeal

CITATION:	KALIYANDA v R [2007] NSWCCA 300 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	28 September 2007
JUDGMENT DATE:	25 October 2007
JUDGMENT OF:	McClellan CJ at CL at 1; Hulme J at 105; Harrison J at 106
DECISION:	1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence; 3. Sentence appeal dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal against conviction and sentence – murder – whether error in directions to jury on circumstantial evidence – whether upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt the appellant was guilty – whether insufficient weight given to the appellant’s depression and delay between the offence and trial – whether sentence manifestly excessive
LEGISLATION CITED:	Crimes Act 1900 Criminal Appeal Act 1912
CASES CITED:	M v The Queen (1994) 181 CLR 487 MFA v The Queen (2002) 213 CLR 606 R v Abookahled, NSWCCA, 9 May 1991, unreported R v Habib [2005] NSWCCA 223 R v McIntyre [2000] NSWCCA 6; (2000) 111 A Crim R 211 Shepherd v The Queen (1990) 170 CLR 573 The Queen v Hillier [2007] HCA 13
PARTIES:	Madappa Kaliyanda (appl) The Crown
FILE NUMBER(S):	CCA 2004/3916
COUNSEL:	C V Jeffreys (Appl) M Hobart (Crown)
SOLICITORS:	Jeffreys & Associates (Appl) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2004/2627
LOWER COURT JUDICIAL OFFICER:	Grove J
LOWER COURT DATE OF DECISION:	27 April 2007

2004/3916

McCLELLAN CJ at CL
HULME J
HARRISON J

THURSDAY 25 OCTOBER 2007

KALIYANDA, Madappa v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted following a trial by jury of the murder of Asha Khanna on or about 23 August 1997. The offence carries a maximum penalty of life imprisonment (s 19(1) of the Crimes Act 1900). The appellant was sentenced to a term of imprisonment consisting of a non-parole period of 14 years commencing on 5 March 2007 and expiring on 4 March 2021 together with a balance of term of 6 years expiring on 4 March 2027. The total sentence is a term of 20 years.

Grounds of appeal

2 There are two grounds of appeal. The first ground alleges that the trial judge erred in a direction he gave to the jury in relation to circumstantial evidence. The second ground alleges that there has been a miscarriage of justice in that, it was not upon the whole of the evidence open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

3 The appellant also seeks leave to appeal in relation to this sentence on three grounds:

1. The trial judge gave insufficient weight to the fact that the appellant was diagnosed as suffering from depression.

2. The trial judge gave insufficient weight to the fact of delay between the time of the alleged offence and the appellant’s trial.

3. The sentence imposed in all the circumstances was manifestly excessive.

The Crown case
General matters

4 The Crown case was circumstantial. It was alleged that the appellant murdered the deceased after she arrived home at her unit after leaving work as a nurse at Liverpool hospital at 11.30 pm on 22 August 1997. She lived alone and her home was a short distance from her place of employment.

5 The Crown alleged that the appellant was admitted by the deceased to her unit where he either smothered her or strangled her with a soft ligature. It was alleged that he then covered her head in a plastic bag, wrapped her body completely in heavy duty plastic garbage bags, tied them together, covered her with a doona and closed her bedroom door which he sealed with a towel to stop decomposition odours emanating from the bedroom.

6 The Crown alleged that the appellant then took the deceased’s Commonwealth Bank mastercard and debit card from her unit and at 4.04 am attempted to use it to obtain money from an automatic teller machine (“ATM”) at the Commonwealth Bank branch at Liverpool. The card was rejected. Another attempt was made at 4.05 am and the card was again rejected. The Crown alleged that the appellant then returned to the deceased’s flat, obtained access to her personal identification number (“PIN”) and at 4.33 am returned to the same Commonwealth Bank branch and retrieved $500 from the ATM. Further attempts were made at 4.34 am to retrieve $500 but it was rejected, 4.35 am to retrieve $300 but it was rejected. At 4.36 am a successful attempt was made to retrieve $200.

7 The appellant did not attend work on 22 August 1997. In his ERISP he said he took his daughter Charishma to their local general practitioner, Dr Gregory Natale, that day as she had a sprained ankle. Dr Natale’s records show that he treated the appellant’s daughter for a sprained ankle on 21 October 1997 and not 22 August. However, the doctor’s records show that on 22 August 1997 he did treat the girl for a viral upper respiratory tract infection.

8 The Crown alleged that the appellant later went to a number of clubs where he “laundered” the monies he had obtained by putting them into poker machines and then obtaining a cash payment for the credit balance. I have attached to these reasons a schedule which details the withdrawals from various ATMs and the occasions on which the appellant obtained a payout from a licensed club.

9 The Crown alleged that the appellant withdrew the entire credit balance from the deceased’s account, approximately $13,000 over the ten days following her death. The last withdrawal was made on 1 September 1997 in the sum of $20.

10 When the deceased’s credit card was used in Commonwealth Bank ATMs on 23 August 1997 and 24 August 1997 CCTV footage was recorded. The police extracted still photographs from that footage which were tendered in evidence. The police also carried out covert surveillance of the appellant and photographs were taken of him in September 1997 which were also tendered in evidence. The appellant was arrested for an entirely separate offence in November 1998 and was also photographed at Liverpool Police Station at that time. These early photographs were important because the appellant’s trial did not take place until this year. The Crown case was that the person in the CCTV footage and the person in the surveillance and other material was one and the same.

11 This Court has examined the photographs and I shall consider them when considering the appellant’s submission that the Crown failed to exclude other possible killers of the deceased.

12 The schedule to these reasons reveals occasions when the appellant attended at licensed clubs and received a payout on that day. It also demonstrates that the deceased’s credit card was used to retrieve money from an ATM at the club on the same day. There are also occasions where, although the credit card was used in an ATM at the club, the evidence does not confirm the appellant’s presence at the club premises at that time. The appellant accepted that he was not at work on any occasion when the credit card was used.

13 There was evidence that the appellant had pawned a camera which had previously been purchased by the deceased. It was the Crown case that the camera had been stolen by the appellant who later pawned it without realising that it may be traced to the deceased.

14 There was a daily amount that limited withdrawals from the deceased’s accounts. Steven McShane, Investigations Manager with the Commonwealth Bank, gave evidence that the maximum amount that could be withdrawn from the deceased’s account at the Commonwealth Bank ATMs was a total of $800 per day.

Cause of death

15 The appellant put in issue whether the deceased had been murdered or whether she had died from natural causes. Although last seen on 22 August her body was not discovered until 9 September.

16 The post mortem examination was carried out by Dr Bogdan Hulewicz, a forensic pathologist. He attended at the scene. The doctor was medically unfit at trial and his post mortem report and evidence at the inquest was read by the trial judge to the jury. In his report he said that apart from a small superficial cut on the right index finger of the deceased, there were no obvious injuries or marks of violence and there was no evidence of pre-existing disease. There was no evidence of the presence of projectiles or any metallic objects. However, toxicological analysis detected the anti-malarial drug, Chloroquine in the deceased’s liver. The doctor stated that the cause of death was not capable of being ascertained in the absence of any evidence of injury or disease.

17 At the coronial inquest Dr Hulewicz had given evidence that the possible causes of death were suffocation or smothering both of which would leave minimal signs or changes to the body. Because of the time between death and the post mortem examination the decomposition of the body would mean that any minimal signs of injury would have been destroyed. The doctor excluded head injury or manual strangulation as there were no skull fractures, no brain injury and there were no fractures to the voice box.

18 The deceased suffered from systemic lupus erythematosus, commonly known as lupus, a condition in which tissues and cells are damaged by the body’s immune system. She was first diagnosed with this condition in 1994. According to the deceased’s medical records she was first treated for the condition with Prednisone and her medication was then changed to Plaquenil. The evidence suggested that the deceased’s lupus, which affected her kidneys, was under control. In a report dated 15 October 1996 Dr Kenneth Howlin, a consultant renal physician, said that he was pleased with the deceased’s progress. In 1996 it was reported that she was well and tolerating the Plaquenil without major problems.

19 The deceased was a nurse which the Crown argued would have ensured that she would have been careful with her medication. Evidence from the quantity of tablets found at the deceased’s unit compared to the date of her prescription suggested that she had been taking her medication responsibly. It was submitted that the possibility that the deceased’s lupus condition had caused her death could be excluded.

20 The anti-malarial drug Chloroquine and metabolites, hydroxychloroquine, were detected in the deceased’s liver at a rate of 230 mg/kg. This can be compared with the evidence which indicated that the toxic range was at least as wide as 71 mg/kg to 724 mg/kg and fatal range from 150 mg/kg to 900 mg/kg. The scientist who carried out the toxicological analysis gave evidence that the certificate was incorrect and that he did not detect any chloroquine but only metabolites of chloroquine in particular hydroxychloroquine and desethyl-chloroquine. The evidence indicated that when carrying out a quantitative analysis for hydroxychloroquine it is necessary to use a certified reference material. The laboratory which carried out the analysis did not possess a certified reference material. The evidence indicated that chloroquine was wrongly used as the certified reference material and accordingly, although hydroxychloroquine and desethyl-chloroquine were found in the liver, the quantitative analysis did not allow identification of their amounts.

21 Evidence was given by Bruce Tattam, a chemist and manager of the Mass Spectrometry Analytical Facility in the Faculty of Pharmacy, University of Sydney. He said that it would not be an acceptable scientific method to use chloroquine to assess the quantity of hydroxychloroquine which was present. He said that if you did that it could give you an invalid result. The true result could be higher or lower.

22 Professor Graham Starmer, the Honorary Associate Professor of Pharmacology at the University of Sydney was asked about testing quantitatively for hydroxychloroquine by using chloroquine. Professor Starmer said “it is wrong … because if you need to measure what you are looking to measure. You can’t compare one chemical with another. He should have got an authenticated sample of hydroxychloroquine to use as his standard.”

23 Professor Starmer said that the taste of Plaquenil or hydroxychloroquine was extremely bitter and side effects of an overdose would be sedation and drowsiness and later cardiac disturbances which can be fatal. He also said you could get a build up of toxicity over weeks or months. However, the Plaquenil found at the unit of the deceased showed that 61 tablets were taken over a period of 64 days. The prescribed therapeutic dose was one per day.

24 In response to the Crown case the appellant submitted at his trial, and to this Court, that the possibility that the deceased had died from lupus or from the effects of hydroxychloroquine could not be excluded. It was suggested that the person using the deceased’s credit card may have come upon her in circumstances where the deceased had already passed away and in an endeavour to delay the time at which the body would be discovered, to allow an opportunity to exploit the credit card, had made the arrangements to cover the body and seal the bedroom door. It was submitted that the deceased may have died without the intervention of a third party, or there may have been another person who killed her, even if it was the appellant who exploited her credit card.

Analysing the schedule of withdrawals from deceased’s bank account and poker machine payouts

25 As I have indicated the records reveal that the person using the deceased’s credit card accessed the Commonwealth Bank ATM on the morning of 23 August 1997. The appellant received a poker machine payout at 1.09 pm on the same afternoon at the Mt Pritchard Community Club. This was for the sum of $500. The payout voucher from the Club signed by the appellant was in evidence. The type of payment is recorded as C/C. This means that the payout is not from a jackpot but is from a credit balance. A cancelled credit payout can be obtained by depositing money in the machine and then collecting it by hitting the “collect” button, obtaining a voucher from the gaming supervisors and then collecting the equivalent cash from the change booths. It was the Crown case that the appellant was laundering the money he had withdrawn that morning by depositing it in the machine and thereafter claiming the credit balance.

26 On the same day, 23 August 1997, the appellant went to the Auburn RSL club. On that day two amounts of $300 were withdrawn from the deceased’s account at 3.24 pm and 3.34 pm. At 4.04 pm the appellant received a poker machine payout for the sum of $300 from the club. The type of payout is nominated as cancelled credit and not a jackpot.

27 The evidence indicated that on this day the appellant took his daughter to coaching in Strathfield between 3 pm and 5 pm. Accordingly, it was submitted that it could not have been the appellant who used the credit card at 2.44 pm. However, there was no evidence of the time at which the appellant took his daughter to her class and it is conceivable that she had been taken earlier than the starting time. Furthermore, there is no evidence that he delivered his daughter on time.

28 On the following day, 24 August 1997, the deceased’s credit card is used to withdraw $500 from the Commonwealth Bank at Liverpool at 12.29 am. It is then used at 12.42 am at the Mt Pritchard Community Club to withdraw $200. An unsuccessful attempt was made to withdraw a further $200 at 1.40 am. At 3.07 am the credit card is used to withdraw $700 from the Commonwealth Bank at Liverpool.

29 On 25 August 1997 at 12.03 am an enquiry is made using the credit card at the Commonwealth Bank at Liverpool with respect to the balance of the account. An amount of $700 is then withdrawn from the account. At 10.51 am a withdrawal is made through the ATM at the Mt Pritchard Community Club for the sum of $400. At 11.14 am on that day the appellant received a poker machine payout of $600 and at 11.44 am a further payout of $500. The vouchers indicate that both payouts were for cancelled credit.

30 At 12.12 pm a withdrawal is made using the credit card from the club’s AMT for $400. At 12.35 pm there is a further payout of $500. This was also for a cancelled credit. At 1.16 pm and 1.17 pm, there were two unsuccessful attempts to withdraw $400 each time.

31 The schedule shows further attempts to utilise the credit card, some of which were unsuccessful but most of which were successful. On 26 August 1997 the credit card was used at the Commonwealth Bank in Westfield at Liverpool and at the John Edmondson Memorial Club, the second occasion being at 11.31 am. The appellant obtained a payout of $600 from the club at 12.08 pm. The credit card was again used at the club at 12.30 pm. The appellant obtained a further payout of $1000 at 1.25 pm. The payout vouchers indicated that the payouts were for cancelled credit.

32 On 27 August 1997 the credit card was used at the John Edmondson Memorial Club to obtain a total of $1,500 between 10.02 am and 10.21 am. At 1.09 pm the appellant obtained a payout of a $1,000. The voucher was noted by the code indicating cancelled credit. Later that afternoon, there were two failed attempts to withdraw $300 and $200.

33 On 28 August 1997 the deceased’s credit card was used to obtain money from an ATM at the John Edmondson Memorial Club. A total of $1600 was obtained between 12.32 pm and 12.42 pm. At 12.51 pm and 2.15 pm the appellant obtained payouts totalling $1,000. The vouchers for these payouts were noted by the code indicating cancelled credit.

34 Monies were withdrawn from the ATM at the John Edmondson Memorial Club on 29 August 1997 but there is no record of the appellant receiving any poker machine payouts.

35 The credit card was used at the Fairfield RSL Club ATM on 30 August 1997. The appellant obtained poker machine payouts of $1,200 at 1.40 am on that day and a further payout of $300 at 2.47 am. Both payouts were cancelled credits. The following day on 31 August 1997 and thereafter on 1 September 1997 money was obtained from the ATM at the Fairfield RSL Club and the Mt Pritchard Community Club. However, there is no record of the appellant being present on that day or obtaining a payout.

36 The appellant gave an ERISP interview during which he was asked about the maximum amount that he would put into a poker machine. He answered that he would normally put in $5, $10 but $20 as his maximum to play. He said that he had received jackpots of the order of $100 or $50 but none bigger than that. The evidence of the payouts which he in fact received from the various clubs on different occasions is entirely inconsistent with these answers. The appellant was asked about the poker machine payouts coinciding with withdrawals from the deceased’s accounts. His response was that someone must have been following him and that another person who had used the cards must have been there when he was in the club.

Deceased’s phone calls on 22 August 1997

37 Mira Kosijer worked with the deceased at Liverpool Hospital. During the shift between 3 pm and 11 pm on 22 August 1997 the deceased used the phone in the nurses station. Miss Kosijer said this was at about 3 pm. Apparently the deceased was unable to reach the person she was telephoning and rang Telecom for assistance. Miss Kosijer made a joke to the deceased about the phone number which she had overheard the deceased repeating to the Telecom operator. Miss Kosijer recognised the first numbers as being Liverpool numbers (9821 or 9826). Other evidence revealed that the appellant was not at work at this time and that his home phone number began with the numbers 9601. The appellant accordingly suggested that the deceased had not been ringing him at this time.

38 Miss Kosijer gave evidence that at about 8 pm on the same day the deceased again made a telephone call. She spoke to someone in what appeared to be “in her Indian language.” She had apparently also tried to use the telephone at 7.30 pm but could not get through.

39 At about 9.30 pm the deceased asked Miss Kosijer if she could help with swapping her afternoon shift the next day. Miss Kosijer was not able to assist and suggested she ask other nurses whether they could help. When the deceased did not show up for work the next day (and she had apparently not managed to change her shift) Miss Kosijer rang her at home but there was no answer.

40 Miss Kosijer described the deceased as being very reticent on 22 August and appeared desperate to have the following day off. She said of her that she was “physically with us but mentally she was far away.” Miss Kosijer said it was after the phone call in the evening that the deceased’s behaviour began to change.

Telephone call to Liverpool Hospital

41 On 23 August 1997 a telephone call was made to Liverpool Hospital where the deceased worked as a nurse. The caller said that the deceased had had to leave suddenly for India as her mother was sick and she would not be back for 2 weeks. It was the Crown case that this telephone call was made by the appellant for the purpose of explaining the deceased’s absence and allowing sufficient time for him to utilise her credit card without being detected.

42 Mr John Acs gave evidence of this phone call at the trial. He said he received a telephone call at Liverpool Hospital between 1.30 and 2.00 pm on 23 August 1997. The caller would not give his name. Mr Acs described the caller’s voice as being male, middle aged, over 35 and with an Indian accent. He later said it was a Malaysian/Indian accent. He said that he had never heard the voice of the caller before but had worked with Indian doctors and nurses from Malaysia and the caller sounded like the people he had worked with who were Indians – particularly Malaysian Indians as opposed to Indians from India. The suggestion was made that Mr Richard Naidu made this call. I discuss that matter in detail below.

Deceased’s camera

43 The evidence disclosed that the appellant sold a Canon camera to the Cash Converters store at Liverpool on 3 November 1997 about 11 weeks after the last sighting of the deceased. Police saw the camera at Cash Converters on 26 November 1997. Documentation at the deceased’s unit disclosed that the camera and a lens had been purchased by her and that a warranty card had been completed. It was the Crown case that the appellant took the camera on the night he murdered the deceased.

44 The appellant gave an explanation for his possession of the camera during his ERISP interview. He said that he purchased it for $50 from a Fijian Indian man “a couple of years ago” at the Railway Station Hotel, Liverpool. He said that he intended to give it to some relatives in India when he visited, but sold it as he needed money for some car repairs.

ERISP interview of appellant’s wife

45 The appellant’s wife gave an ERISP interview on 12 November 1997. During the interview a number of questions were asked of her about her husband, the clubs he attended and his personal appearance, including whether he wore a moustache. She indicated that she herself knew the deceased, they attended a prayer group together, and that the appellant had met her on one occasion at their home in June or July 1997.

46 The appellant listened to the cassette recording of this interview and discussed it with his wife. Accordingly, he became aware that the police were interested in him as a suspect in relation to the murder. During his own ERISP interview he initially denied knowing the contents of the interview with his wife. However, he did agree that his wife had received a copy of the cassette of the interview and was asked:

“Q. Did you listen to that?
A. No sir.”

47 He was later informed that the police had installed listening devices at his home. He then admitted that he had heard the contents of the ERISP with his wife. He was asked:

“Q. Tell me about listening to the cassette?
A. Yeah, I listened to the question about what you asked my wife.”

48 The Crown relied on this evidence as a lie evidencing a consciousness of guilt.

Anonymous letter sent to police 21 November 1997

49 On 21 November 1997, nine days after the appellant’s wife was interviewed, a hand written letter was sent to Liverpool police station with information about the deceased’s death. The letter was transcribed and read to the jury. It reads as follows:

“Sir
I wish to bring the following to your attention regarding the death of Mrs Asha Khanna of Liverpool. I came to Australia about ten year back, some years back and meet Mr Chaman Lal Khanna at Parramatta and we become very good friends. I often go to their home at 13 Auburn Road, Parramatta and meet his wife, Mrs Asha Khanna, as I also come from north part of India. After some time Mr and Mrs Khanna had a fight and Mrs Khanna changed house to Bankstown.
On 22nd of August Mr Chaman Lal Khanna take me to Liverpool at 11.00 pm. He say to me he want to speak to her about money and house in India. Mrs Khanna come back from work at 11.30 pm and park her car in the garage, Mr Khanna go and speak to her and both of them go into the house and I was sitting in the car outside, at 12.15am Mr Khanna come down and sit in the car and say to me that Mrs Khanna is dead. Mr Khanna say to me that they have a [sic] argument about house in India and Mrs Khanna go to the phone to call police when Mr Khanna punch her in the head and he say she fall down and die because she was a sick womenen [sic] he bring her bank card and her house key we go to the Commonwealth Bank and withdraw money from her account.
On 23rd we come back at midnight and Mr Chaman Lal Khanna go into the house with the keys. He come back after one hour and say to me not to worry because he clean all finger print and covered the body and no one will find out for many days. He give me her bank card and pin number and say to me take the money in the account and not say a word about this to anyone. He say to me to draw the money in Liverpool area clubs and ATM machines. I withdraw the money out Liverpool RSL, Mt Pritchard club, Fairfield RSL, Auburn RSL and local ATM machines at Liverpool.
On the day the police find the body of Mrs Khanna I contact Mr Khanna and he say to me not to worry but two weeks back when I see the sketch of the person wanted by the police on TV and local paper I become very afraid [sic]. I know one I get caught and I go to gaol for not reporting the death to police and taking money from the bank account. This will bring bad name to my father and mother in India so I decided to go back to India.
When you get this letter next week I will no longer be in Australia. Mr Chaman Lal Khanna does not know my address in India. Sir, I am very sorry for not having reported the death of Mrs Khanna and for taking her money. I have no job and no future in Australia so I go back. I wish to say sorry again sir.”

50 The Crown emphasised that the letter contained information which was not generally known to the deceased’s friends. It was not commonly known that she had ever been married or that her husband was named Chaman Lal Khanna. It was also not known that they lived at 13 Auburn Street, Parramatta and that she had come to Australia in 1986, ten years before her death. The police had released information to the media that the deceased had arrived home about 11.30 pm but had not told the media that entry was gained without force nor that the deceased had met her death shortly after. The police had also not told the media that the deceased’s credit card was taken or where the card had been utilised nor that the person accessing the card knew her PIN.

Other suspects – Chaman Lal Khanna and Richard Naidu

51 The anonymous letter sent to the police on 21 November 1997 implicated the former husband of the deceased, Chaman Lal Khanna, as the murderer and another man, who was the writer of the letter, as the person who accessed the bank accounts of the deceased. The Crown said this letter was written by the appellant to divert attention away from himself.

52 Chaman Lal Khanna married the deceased, who was his second wife, in an arranged marriage in 1986. He had been living in Australia since 1972 and worked as a teacher at Auburn Girls High School. When the deceased came to Australia they lived together at his home in Parramatta as man and wife for two weeks and then she moved into a separate bedroom. When the deceased obtained work as a nurse at Royal Prince Alfred Hospital, Camperdown, she moved into the nurses’ hostel. He said she first came to Australia in October 1986 and moved into the nurses’ hostel in late January or early February the following year. At her request he took her belongings in a suitcase and delivered it to the reception desk at the hostel.

53 Mr Khanna and the deceased were divorced in 1987 or 1988 and he gave evidence that he had never seen her again. She made no claim on him for maintenance or property settlement. He said that he did not know where she lived or where she worked at the time of her death. He denied that the letter written on 21 November 1997 was in his handwriting or that he went to the deceased’s unit and punched her head, as alleged in the letter. He denied murdering the deceased.

54 It was also suggested that the deceased may have been murdered by Richard Naidu. Mr Naidu is of Malaysian/Indian origin. He had been previously arrested by police on 30 January 1996 in relation to a domestic complaint. On that occasion he was arrested by Const Stephen Pretty who filled out a COPS entry in which he said that the offender had no facial hair. As I have indicated the person using the deceased’s credit card had a moustache. Although Const Pretty said on 16 September 1997 in a statement to the police that Mr Naidu had a moustache, when giving evidence at the trial he said the original COPS entry was correct. An ERISP was also conducted with Mr Naidu on 30 January 1996 and still photographs taken at that time show that he did not have a moustache.

55 Mr Naidu gave evidence in which he said he had never had a moustache. He said he knew the deceased as he had worked with her for a time at Liverpool Hospital until 1995 when he left. He said that he did not know where she lived. He denied telephoning Liverpool Hospital on 23 August 1997 and saying that the deceased would be away for 2 weeks as she had gone to India. He also denied that he was the person in the photographs taken at the Commonwealth Bank ATM on 23 and 24 August 1997. Mr Naidu was having an affair with another nurse at Liverpool Hospital when he was employed there. This resulted in separation and divorce from his wife who he said he rarely spoke to. He said that relations between them were cool.

56 Mr Naidu’s wife gave evidence. She said that she was divorced from him in 2001. She was shown the photographs of the person at the Commonwealth Bank ATM on 23 and 24 August 1997 and said they were not her former husband. She said that her former husband had never worn a moustache from the time she met him in 1972 until their divorce.

57 Evidence was also given by Robert Davies, who was a nurse at Liverpool Hospital when Mr Naidu worked there. He said that Mr Naidu had a moustache at least part of the time he worked with him. He said that the moustache he remembered was thick and black, sort of like Saddam Hussein’s. He agreed that he gave evidence for the first time of Mr Naidu wearing a moustache at the inquest in December 2003. He agreed with the Crown Prosecutor that when he gave his statement to the police on 10 September 1997 there was no reference to Mr Naidu having a moustache.

58 Shermon Naidu, the son of Richard Naidu, said he had never seen his father with a moustache. He said that the photographs taken at the Commonwealth Bank ATM were not photographs of his father. He said they were not even close. Two driver’s licences and eight photographs of Mr Naidu were tendered at the trial. They ranged over many years. None of these showed him wearing a moustache.

Ground One: His Honour erred in his direction in relation to circumstantial evidence

59 In his summing up, the trial judge said:

“Circumstantial evidence is evidence of the character which the name suggests. That is to say the crown sets out to try and prove a series of circumstances, which when placed together will convince you beyond reasonable doubt of what the crown must prove, namely the guilt of the accused. Circumstantial evidence can be contrasted with what may be called direct evidence …
When you are dealing with a circumstantial case, it is important that you should understand that before you can return a verdict of guilty you must be satisfied that the circumstances altogether considered there can be no rational conclusion other than the guilt of the accused.”

60 The appellant makes no complaint about these directions. However, his Honour continued saying:

“In other words, if there is a reasonable possibility upon the whole of the circumstances proved then the accused is not guilty, then he is entitled to the benefit of that circumstance and is entitled to a verdict of not guilty at your hands. It is really just another way of saying of what I have said to you several times now that the crown must prove its case beyond reasonable doubt.”

61 The appellant submitted that this direction had a tendency to confuse the jury “as they may have thought that it was necessary for them to be able to infer that a circumstance, the subject of such a rational conclusion, in fact occurred before relying on, or making allowance for, the possibility of such a circumstance.” The appellant relied upon R v McIntyre [2000] NSWCCA 6; (2000) 111 A Crim R 211.

62 In McIntyre the appellant was charged with breaking and entering and maliciously damaging a property by fire. The defence case was that there was a reasonable possibility that someone else could have been the offender. Hulme J emphasised that when consideration was being given to whether there was a reasonable possibility that someone else could have been the offender it was not necessary for the jury to be able to infer that the hypothesis actually occurred (at [31]). The appellant submitted that the direction given by the trial judge in the present case may have been misunderstood by the jury who may have believed that, rather than being a possibility, they may have been required to conclude that the possible event occurred before they could have regard to it when determining the appellant’s guilt.

63 In my judgment the submission must be rejected. I do not accept that the jury could have been misled into believing that the hypothetical possibility must be proved. They were merely told to examine the whole of the circumstances. In the immediately preceding sentence to that complained of by the appellant the trial judge reminded the jury that they had to conclude that there was “no rational conclusion other than the guilt of the accused” before they could return a guilty verdict. In order to further explain this concept his Honour made the remarks now complained of.

64 Elsewhere in his summing up his Honour spoke of the nature of a circumstantial case. He repeated on a number of occasions that the onus of proof rests upon the Crown which is required to prove the guilt of the accused beyond reasonable doubt. His Honour also directed the jury that an essential component of the Crown case was that it was the appellant who was using the ATMs on each of the occasions that have been photographed. In this respect his Honour gave the jury a Shepherd direction (see Shepherd v The Queen (1990) 170 CLR 573). His Honour further said:

“The nature of a circumstantial case is such that you can only draw the ultimate inference of adverse finding against the accused if you are satisfied beyond reasonable doubt that there is no other rational inference available from the whole of the evidence other than that the guilt of the accused. Unless the evidence so satisfies you, then it is your duty to bring in a verdict of not guilty.”

65 The direction complained of and the other directions to which I have referred were given to the jury by the trial judge on the afternoon of Tuesday 27 February 2007. The matter was then adjourned to the following day when his Honour gave the jury further directions. On this occasion his Honour directed particular attention to the evidence in the case and the submissions made by trial counsel. In relation to the cause of the deceased’s death his Honour said:

“The Crown argument in this case is that you would reject the other postulated possibilities of death by reason of lupus or death by reason of a lethal build up of hydroxychloroquine. If it is, of course, necessary for you to reject those as possibilities before this case even gets to first base. In other words if, as a result of your finding and deliberation upon the evidence in particular, I would refer to the evidence of Dr Hulewicz and Dr Duflou, you were unable to exclude as reasonable possibilities the death of the deceased by one or other of the disease or the ingestion of what has been called the malaria type drug then necessarily the Crown case would fail because it has not established the first element of the ingredients of the crime.”

66 These were concise directions as to the way in which the jury was to approach the evidence in relation to the cause of death of the deceased. The jury were reminded in clear terms that they had to reject possibilities which were inconsistent with the appellant being the killer before the Crown case got “to first base.”

67 Later his Honour said:

“As I have pointed out to you, if the Crown has to prove something beyond reasonable doubt then if there exists a possibility to the contrary it is a matter of pure logic that proof beyond reasonable doubt has not been attained.”

68 His Honour then proceeded to deal with the arguments of counsel for the appellant.

69 Even if I was persuaded that the direction of which the appellant complains was confusing, and I am not, I am satisfied that the further directions provided the jury with a clear understanding of the manner in which it was to approach its task.

70 This ground of appeal fails.

Ground two: There has been miscarriage of justice in that, the verdicts of the jury are unsafe and unsatisfactory, as it was not upon the whole of the evidence, open to the jury to be satisfied beyond reasonable doubt that the accused was guilty

71 Although previously the expression “unsafe and unsatisfactory” was used when describing this ground it is now usual to describe it by reference to s 6(1) of the Criminal Appeal Act 1912. Section 6(1) provides that a verdict of guilty should be set aside “on the ground that it is unreasonable or cannot be supported having regard to the evidence.” The ultimate question for determination is “whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (M v The Queen (1994) 181 CLR 487 at 494-495; MFA v The Queen (2002) 213 CLR 606 at [25] and [55]).

72 I summarised the principles for determining whether a jury’s verdict is unreasonable in R v Habib [2005] NSWCCA 223 at [48]-[56]:

“Section 6(1) of the Criminal Appeal Act provides as follows:

‘The court on any appeal under section 5 (1) against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

Although the application of the section has at times proved troublesome it was authoritatively considered by the High Court in MFA v The Queen (2002) 213 CLR 606, M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439 at 493.

There are two joint judgments in MFA. Gleeson CJ, Hayne and Callinan JJ state that when the issue is whether the verdict of a jury is unreasonable or cannot be supported the test to be applied is that stated by Mason CJ, Deane, Dawson and Toohey JJ in M:

‘Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.’


…

In MFA the High Court was concerned with whether the analysis of the facts of a trial by this Court was appropriate. In carrying out the appellate task the joint judgment emphasised that it was relevant to identify whether the evidence in the Crown case was "cogent and unequivocal, and it was not inherently implausible"[30]. The relevant question is whether "it was open to the jury to be satisfied beyond reasonable doubt of the appellant's guilt" [36].

In MFA, McHugh, Gummow and Kirby JJ joined in a separate judgment. Their Honours emphasised that it was important to focus on the language of s 6(1) which because of the inclusion of the word "unreasonable" "seems to state a very broad test"[47]. However, their Honours point out that the seeming amplitude is to be restricted by the context. Being a verdict of a jury which is given a special place in the law to set it aside involves "a serious step"[49]. The requirement of the section is that the court must determine whether there has been a "miscarriage of justice" notwithstanding that the jury has returned a guilty verdict.

Embracing the test adopted by the majority of the court in M the joint judgment stated:

‘Instead of asking whether the jury 'must' or were 'bound to' have a reasonable doubt about the accused's guilt, the majority posed the question whether it was 'open to the jury' to be satisfied of the accused's guilt, applying the criminal standard of proof beyond reasonable doubt, acting as a reasonable jury and reaching their verdict 'upon the whole of the evidence' [55].

The joint judgment offered the following by way of guidance:


‘The majority in M pointed out that '[i]n most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced'. In such a case of doubt, it is only where the jury's advantage of seeing and hearing the evidence can explain the difference in conclusion about the accused's guilt that the appellate court may decide that no miscarriage of justice has occurred:

'If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence'[56].

In their conclusion their Honours acknowledge that it is not uncommon for some aspects of the evidence in a trial to be less than wholly satisfactory although juries are usually well able to evaluate conflicts and imperfections of evidence. "In the end, the appellate court must ask itself whether it considers that a miscarriage of justice has occurred authorising and requiring its intervention" [96].

73 The Crown case was, as I have already related, circumstantial. The jury were required to consider all of the evidence. That evidence is not to be considered piecemeal (The Queen v Hillier [2007] HCA 13 at [48]).

74 In Shepherd v The Queen (1990) 170 CLR 573, Dawson J (with whom Mason CJ, Toohey and Gaudron JJ agreed) said at 580:

“In Chamberlain [(1983) 153 CLR 521] Gibbs CJ and Mason J accept that evidence may have a cumulative effect and point out that it is the duty of the jury to consider all the facts together at the conclusion of the case. They say:
‘At the end of the trial the jury must consider all the evidence, and in doing so they may find that one piece of evidence resolves their doubts as to another. For example, the jury, considering the evidence of one witness by itself, may doubt whether it is truthful, but other evidence may provide corroboration, and when the jury considers the evidence as a whole they may decide that the witness should be believed. Again, the quality of evidence of identification may be poor, but other evidence ma support its correctness; in such a case the jury should not be told to look at the evidence of each witness ‘separately in, so to speak, a hermetically sealed compartment’, they should consider the accumulation of the evidence.’
Gibbs CJ and Mason J apply the same principle to circumstantial evidence, saying that ‘in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it.’ They continue:
‘It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.’”

75 To my mind the Crown case was compelling and the jury were entitled to accept, to the requisite standard that it was the appellant that killed the deceased. The challenge to that finding was argued on a number of bases. I consider each of them in turn.

The cause of death

76 The appellant emphasised that Dr Duflou was unable to confirm the cause of death of the deceased. His examination of the deceased could not exclude the possibility that the deceased died from lupus or from hydroxychloroquine.

77 Notwithstanding this evidence the physical evidence at the scene was compelling. The deceased had been wrapped in heavy duty garbage bags and was lying on her bed. A towel had been placed at the opening below the door. As a consequence there could be no doubt that at a time at least proximate to her death there had been human intervention. It was suggested by the appellant that this may have involved a person who came upon the scene after the deceased had died and in order to delay the discovery of her body had wrapped it in plastic bags and sealed the door. It was suggested that this person’s intention was to use the credit card which he or she had stolen and delay for as long as possible, the detection of the deceased’s body which would lead to inquiries being made about her bank account.

78 There is nothing in the evidence to support this suggestion. There was no evidence of any forced entry of the deceased’s premises with the consequence that it was reasonable to assume that the other person was admitted to the premises by the deceased. There was evidence that the deceased was careful about her dealings with strange men and accordingly it is reasonable to conclude that the person was someone whom she already knew.

79 The medical evidence was consistent with the possibility that the deceased was suffocated or smothered. Although the deceased was suffering from lupus the medical evidence did not suggest that this was likely to have caused her death. Having regard to her apparent careful use of her medication, poisoning from hydroxychloroquine can be discounted. In my opinion any view that the deceased died other than at the hand of a murderer could not reasonably be sustained.

Accessing the deceased’s bank account

80 The trial judge impressed on the jury the necessity of them being satisfied that the appellant was the person who accessed the deceased’s bank account. To my mind there can be no doubt that the jury were entitled to reach this conclusion. Although it cannot be demonstrated that the appellant was present at a club on each occasion the credit card was used there were a number of occasions when the card was used at a time when it could be established that at about that time the appellant was present. On each of these occasions the appellant is proved to have obtained cash payouts in round dollar numbers. The payouts were not consistent with poker machine winnings or jackpots having been obtained. They are consistent with someone having deposited money in a machine and then immediately seeking to retrieve it using the conventional processes of the club. It is important that on no occasion when the credit card was used was the appellant at his work.

Other killers

81 I am also satisfied that the jury were entitled to exclude Mr Naidu from consideration as the possible killer. Although he was a person of Malaysian Indian extraction the evidence of his family members was that he did not wear a moustache. It is true that Mr Davies, who had worked with Mr Naidu gave evidence that, on occasions, he had seen Mr Naidu wearing a moustache but it would seem that his recollection may be unreliable.

82 In any event, to my mind the photographic evidence is compelling. The photographs taken at the ATM on the morning of 23 August 1997 bear a striking resemblance to the surveillance photographs taken of the appellant. The person accessing the ATM is of Indian features, has a moustache, wears glasses and is smoking.

83 Photographs of Mr Naidu do not ever reveal a moustache and photographs taken both before and after the murder show that his hairline has receded significantly further than the hairline of the person accessing the ATM.

84 The trial judge was careful to warn the jury of the difficulties when considering evidence of identification, particularly evidence across cultures. No complaint is made by the appellant about these directions. The conclusion which the jury reached indicates that they were satisfied beyond reasonable doubt that it was the appellant who was accessing the ATMs. To my mind the evidence for this finding was strong.

85 I am also satisfied that the jury were entitled to exclude Chaman Lal Khanna as the possible killer. There was no reason to doubt his evidence that his relationship with the deceased was brief and had ended many years ago. Although a letter implicating him as the killer was written this could quite appropriately be viewed as an attempt by the true killer to divert the attention of the investigators.

The pawning of the camera

86 The appellant submitted that although the appellant had possession of the deceased’s camera the fact that he disclosed his name and other details when “pawning” it was inconsistent with him being the killer. There was evidence that the appellant was not an unintelligent person and accordingly it was submitted that it was inconceivable that, if he was guilty of the offence, he would have taken this course. It was submitted that there was no evidence of ransacking of the deceased’s premises where other items of value, particularly jewellery were found.

87 The difficulty with this submission is that there is no evidence that the appellant was aware that it would be possible to trace the camera back to the deceased. Accordingly, in providing his personal details the appellant ensured that his actions would not create suspicion in the minds of the pawnbroker. An intelligent person may be concerned about the possibility of creating that suspicion but not be aware that police tracking mechanisms would enable the camera to be traced to the deceased.

Other matters

88 It is true that there are some unexplained matters in the Crown case. The person who the deceased spoke to in the evening of 22 August 1997 whilst at work is unknown. It could have been the appellant or it could have been some other person. The reason for her agitation following the phone call on that evening is also not known. The letter received by the police on 21 November 1997 is also unexplained. It was not possible, using the sample of the appellant’s handwriting available to the police, to establish whether it was written in the appellant’s hand or exclude him as the author. It also contains details personal to the deceased which someone who was reasonably familiar with her circumstances would have known.

89 There was also no evidence as to how the person who used the credit card obtained the deceased’s PIN. The evidence was that the deceased was a secretive person who would have been unlikely to give her PIN to another person. There was no evidence of ransacking the deceased’s unit.

90 There was no evidence of the appellant having a particular need for money. Both he and his wife were in gainful employment and although they had a loan for the purchase of a motor car they had few debts and apparently were able to meet their outgoings. Furthermore, the listening device material provided no inculpatory evidence and included statements by the appellant in which he questioned why the police were interested in him as the possible killer.

Conclusion

91 Notwithstanding that these matters have been left unexplained, having reviewed the whole of the evidence I am satisfied that it was open to the jury to convict the appellant of murder. There are a number of matters of critical significance to this conclusion. I have previously referred to them.

92 Finally, the coincidence that the appellant had possession of the deceased’s camera points significantly to him being the killer. The jury were entitled to reject his explanation as fanciful. To my mind the jury were entitled to find that the deceased was murdered. The suggestion that someone came into the deceased’s unit after she had passed away and stole her credit card cannot be reconciled with the lack of any evidence of forced entry to her unit.

93 An examination of the photographic material demonstrates a striking resemblance between surveillance photographs of the appellant taken close to the relevant date and the photographic material from the ATMs. This evidence has to be considered in light of the fact that there is evidence of the appellant being present and obtaining cash payouts from clubs where, at a time proximate to the appellant obtaining the payouts, ATMs are accessed using the deceased’s credit card. The coincidence of these events on more than one occasion and the fact that the appellant was retrieving cash which he had already placed in poker machines is powerful evidence of his guilt.

94 This evidence must be considered together with the fact that the appellant knew the deceased and that his wife had established a friendship with her. Although Mr Naidu and the deceased’s former husband also knew her, having regard to the photographic evidence and other details, particularly of Mr Naidu’s appearance, from other witnesses the jury were entitled to discard them as the potential killer.

Sentence

95 The appellant cannot suggest that he was mentally ill at the time of the murder. However, the evidence disclosed that he suffered depression in the years 2003-2004 when he was seen by the mental health team at Liverpool. He has also been diagnosed with diabetes.

96 Although the appellant was not charged with murder until 2007 he was charged in 1999 with various counts of obtaining money by deception relating to the use of the deceased’s credit card and two counts of stealing relating to the deceased’s camera and lens and one count of receiving in relation to his possession of the same items. A coronial inquest into the death of the deceased was conducted in 2003 and the Coroner was satisfied that there was evidence capable of sustaining a charge of murder against the appellant. It was only on 19 August 2004 that the Director of Public Prosecutions directed that an ex officio indictment be filed against the appellant.

97 The appellant’s wife gave evidence that her husband was mentally affected by the fraud charges and the prospect of a murder charge which was hanging over his head from 1999 until 2004. It was at her request that the appellant was seen by the Liverpool Mental Health Unit.

98 At the hearing on sentence the appellant’s solicitor submitted that by reason of the appellant’s depression his time in gaol would be more difficult than for a person not similarly afflicted. However, the sentencing judge considered those issues. In his remarks on sentence the trial judge said:

“I accept the evidence of Dr Krishnan concerning your diabetes status and the diagnosis of depression advanced by Dr Diment. Your poor health will make the incidents of imprisonment more onerous than would be the case if you were in a more robust condition. It is also relevant, particularly in terms of supervision and treatment, to consider this matter when setting a proportion between non parole period and total sentence.”

99 The appellant emphasised the substantial delay between the murder which occurred in 1997 and the filing of the ex officio indictment on 19 August 2004 and his ultimate trial which took place in 2007. The lengthy history of the matter was the subject of submissions before the trial judge. It is explained by the difficulty the police had in obtaining evidence relevant to the offence. Although in 1999 the appellant was charged with the counts relating to the use of the credit card and the camera and lens, it was not until 2003 that a coronial inquest assembled the evidence relevant to the alleged murder. Even then further police inquiries were necessary. The DPP finally filed the ex officio indictment in August 2004. The delay between the filing of the indictment and the appellant’s ultimate trial are explained by problems beyond the control of the prosecution together with a successful application in September 2005 by the defence to vacate the trial date. A trial commenced in October 2006 but was aborted and the matter was relisted for trial in February 2007.

100 When sentencing the trial judge said:

“The second matter is an appreciation of the effects of delay in your being brought to trial. Although, as I have said, you were a suspect within weeks of the killing in August 1997, the trial did not take place until 2007. No challenge was offered to the chronology advanced by your counsel nor the evidence of your wife that although she was interviewed in November 1997, you were not interviewed until December 1999. Of course, in the interim there was obviously a significant amount of painstaking detective work undertaken as revealed by the tracing of the use of the card on the ATMs, your presence when it was being used on occasions and the disposal by you of a camera which had been owned by the deceased. As I have mentioned, however, in December 1999 you were charged only with fraud offences.
From December 1999 to December 2003 you were required to attend court on between twenty and thirty occasions. The adjournments were sought by the prosecution and eventually the court (presumably the Local Court) was informed that no charge of murder would be preferred by the Director of Public Prosecutions. However, the fraud charges were not proceeded with pending the holding of an inquest into the death of Ms Khanna. This took place in December 2003 and subsequently in about August 2004 an ex officio indictment for murder was presented against you.

You were on bail until I committed you to custody on 5 March 2007 following the jury verdict. Nevertheless this long delay was not of your making and it is appropriate to take into account the situation of uncertain suspense in which you must have been for an uncommonly lengthy period.”

101 In these remarks his Honour appropriately recognised the part which delay in bringing the matter to trial should play in determining the appellant’s sentence. From the time of the offence until he came to trial the appellant would have been unsure as to his fate. This was, as his Honour commented, a very lengthy period. However, the appellant pleaded not guilty and it could not be suggested that during this period he had progressed towards rehabilitation which may be relevant in appropriate cases (see R v Abookahled, NSWCCA, 9 May 1991, unreported).

102 The appellant complains that his sentence was manifestly excessive. When sentencing his Honour had regard to the available statistical material applying to similar offences committed between 1994 and 2001. The median sentence for offences was a head sentence of 18 years and a non-parole period of 13.25 years. The range of head sentences extended between 10 years and life. His Honour accepted the statistics as a guide.

103 When sentencing his Honour found that the offence “manifested a callous indifference to what you did and to what you had done.” In my opinion his Honour was more than entitled to make this finding. It justified a sentence at the higher end of the available range. A sentence comprising a non-parole period of 14 years with an overall term of 20 years was, in my view well within the appropriate range. It was not manifestly excessive.

Orders:

104 In my opinion the appeal against conviction should be dismissed. Although I would grant leave to appeal against sentence I would dismiss that appeal.

105 HULME J: I agree with McClellan CJ at CL.

106 HARRISON J: I agree with McClellan CJ at CL.

**********

04/04/2008 - Annexure A added to the judgment - Paragraph(s) After paragraph 106