Mulvihill v R

[2016] NSWCCA 259

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Mulvihill v R [2016] NSWCCA 259
Hearing dates:	12 September 2016
Decision date:	25 November 2016
Before:	Ward JA; Beech-Jones J; Fagan J
Decision:	(1) Extend the time for the filing of the notice of appeal and application for leave to appeal to 22 April 2016. (2) Grant the applicant leave to appeal his conviction on grounds 1 and 2 of his notice of appeal dated 22 April 2016. (3) Refuse the applicant leave to appeal his conviction on grounds 3-8 and 10 of his notice of appeal dated 22 April 2016 (noting that ground 9 was not pressed by the applicant). (4) Dismiss the appeal against conviction. (5) Grant the applicant leave to appeal against his sentence but dismiss the appeal.
Catchwords:	CRIMINAL LAW – conviction appeal – murder – where applicant claimed he did not intentionally inflict knife wounds but that deceased sustained wounds accidentally in course of struggle with applicant – whether judge erred in not leaving unlawful and dangerous act manslaughter or “second limb” of self-defence to jury where applicant did not conduct case on either of those bases – whether judge erred in not leaving provocation to jury – whether judge erred in directions on circumstantial evidence, flight as consciousness of guilt or onus and standard of proof – whether prejudicial comments or breach of rule in Browne v Dunn by prosecutor caused trial to miscarry – leave to appeal granted on two grounds – appeal against conviction dismissed     CRIMINAL LAW – sentence appeal – complaint as to failure of judge to take into account applicant’s facilitation of the administration of justice – whether judge erred in permitting and taking into account evidence of applicant’s alleged prior misconduct – whether judge erred in not taking into account applicant’s mental illness – leave to appeal against sentence granted but appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 23, 418 Crimes Act 1958 (Vic), ss 400(1), 400(2) Crimes Amendment (Provocation) Act 2014 (NSW) Criminal Appeal Rules (NSW), r 4 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(eb), 21A(2)(g), 21A(3)(f), 21A(3)(g), 22A, 44 Criminal Appeal Act 1912 (NSW), ss 5(1)(b), 5(1)(c) Evidence Act 1995 (NSW), ss 4(2), 18 Jury Act 1977 (NSW), ss 53A, 53B, 55D, 55DA, 68C
Cases Cited:	Abdallah v The Queen [2016] NSWCCA 34 Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 BG v R (2012) 221 A Crim R 215; [2012] NSWCCA 139 Browne v Dunn (1894) 6 R 67 Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 Gall v R [2015] NSWCCA 69 Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 Gilmour v Environment Protection Authority; Tableland Topdressing Pty Ltd v Environment Protection Authority (2002) 55 NSWLR 593; [2002] NSWCCA 399 Grant v The Queen (1975) 11 ALR 503 Grogan v R [2016] NSWCCA 168 James v The Queen (2014) 253 CLR 475; [2014] HCA 6 Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67 McGreevy v Director of Public Prosecutions [1973] 1 All ER 503 Minniti v R (2006) 159 A Crim R 394; [2006] NSWCCA 30 MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 Najibi v R [2016] VSCA 177 Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 Penza and Di Maria v R [2013] NSWCCA 21 R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 R v Cook [2004] NSWCCA 52 R v Heyde (1990) 20 NSWLR 234 R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 R v Kartarzynski [2005] NSWCCA 72 R v Lucas [1981] 1 QB 720 R v P [2008] 2 Cr App R 6 R v Tillott (1991) 53 A Crim R 46 R v White [1998] 2 SCR 72 Ristevski v R [2007] NSWCCA 87 Rogerson v R (1992) 65 A Crim R 530 RP v R (2015) 90 NSWLR 234; [2015] NSWCCA 215 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Steer v R (2008) 191 A Crim R 435; [2008] NSWCCA 295 Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61 SW v R [2013] NSWCCA 103 The Queen v Baden-Clay [2016] HCA 35; (2016) 90 ALJR 1013 The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14 Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 Wood v R (2012) 84 NSWLR 581; [2012] NSWCCA 21 Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28
Texts Cited:	JD Heydon, Cross on Evidence (10th ed, 2015, LexisNexis)
Category:	Principal judgment
Parties:	Paul Darren Mulvihill (Applicant) Regina (Respondent)
Representation:	Counsel: D A Marr (Applicant) Ms M Cinque SC (Respondent)   Solicitors: Richard Cummins Solicitor (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/222491
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2014] NSWSC 443 Date of Decision: 16 April 2014 Before: Fullerton J File Number(s): 2012/222491

Judgment

1. THE COURT: On 10 March 2014, following a trial in the Supreme Court before Fullerton J and a jury of twelve, the applicant (Paul Darren Mulvihill) was convicted of the murder on 16 July 2012 of his former lover, Rachelle Yeo. The applicant had pleaded not guilty to the sole count on the indictment, that of murder, and had raised no affirmative defences to the charge. His case, as to which he gave evidence before the jury, was that Ms Yeo’s death had been the result of an accident, the two fatal wounds (a neck wound severing her jugular vein and a penetrating wound to the heart, either of which would have been sufficient to kill her) having been inflicted by the deceased herself in the course of a struggle which had occurred in her apartment after an argument between them.

2. The applicant was sentenced on 16 April 2014 to a term of imprisonment of 29 years, comprised of a non-parole period of 22 years commencing on 16 February 2013 and expiring on 15 February 2035, with a balance of term of 7 years expiring on 15 February 2042. He will first be eligible for release to parole on 15 February 2035.

3. By notice filed on 22 April 2016, the applicant now seeks to appeal against both conviction and sentence. He requires an extension of time to do so, having regard to the lapse of time between the expiry on 15 October 2015 of the last of various extensions of time granted for the filing of a notice of appeal and the date his notice of appeal and notice of application for leave to appeal was eventually filed (22 April 2016). The explanation for the delay proffered by his solicitor (by way of annotation to the notice of application for extension of time) was that the applicant was in custody and waiting for funds to finance his appeal to be released by the Family Court, after which it was necessary for his solicitor to obtain documents, brief counsel and confer with the applicant at the correctional centre in which he remains in custody.

4. There was no opposition by the Crown to the extension sought for the filing of the notice of appeal and notice of application for leave to appeal and in the circumstances an extension to 22 April 2016 should be granted for the filing of the notice of appeal and notice of application for leave to appeal.

5. Pursuant to r 4 of the Criminal Appeal Rules (NSW), the applicant requires leave to appeal in respect of all of the grounds of appeal against his conviction, other than ground 9 (the unreasonable verdict ground which was abandoned at the hearing of the appeal) and ground 10 (which raises a complaint as to a miscarriage of justice issue), because no objection was taken at the trial in respect of the matters the subject of complaint in his grounds 1-8. Further, in respect of all of the conviction grounds of appeal, the applicant requires leave under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) insofar as they include questions of fact. In relation to the sentence appeal, leave is required pursuant to s 5(1)(c) of the Criminal Appeal Act.

6. The Crown did not oppose the grant of leave for the applicant to rely on grounds 1 and 10 of the conviction appeal but submitted that leave should be refused on the balance of the grounds that required leave, variously on the basis that there was no error demonstrated or that the ground(s) have no merit. The Crown also submitted that the application for leave to appeal against sentence should be refused.

7. In circumstances where the applicant has been convicted of a very serious crime for which he is serving a lengthy term of imprisonment, leave should be granted for him to rely upon grounds 1-2 of his conviction appeal grounds and to appeal against his sentence. Leave should be refused in relation to the balance of the appeal grounds for the reasons set out in due course. (Had leave been given on those grounds they would have been dismissed in any event for the reasons canvassed in respect of each of them.)

8. For the reasons that follow, both the appeal against conviction and the appeal against sentence should be dismissed.

Background

9. The following summary of the factual background (which does not purport to be exhaustive) is drawn from the Crown’s comprehensive summary of the trial and the written submissions provided to this Court for the applicant.

10. The applicant and Ms Yeo were both employed by a pharmaceutical company (Sanofi-Aventis): the applicant as the National Pharmacy Channel Development Manager based in Brisbane; Ms Yeo as a Pharmaceutical Sales Representative in Brisbane until she commenced a new role as a Product Manager in Sydney in April 2012. They met through work and, while both had other partners, in late November or early December 2010 they commenced a sexual relationship which lasted for about 18 months.

11. The applicant was 46 at the time of the trial. He, his wife, Ms Theresa Mulvihill and their three adolescent daughters lived together in Surfers Paradise. Ms Yeo was aged 31 at the time of her death. Her relationship with the applicant commenced and continued for some time while she was engaged to someone else (Mr Paul Maher).

12. In January 2012, Ms Mulvihill became aware that her husband was having an affair with Ms Yeo after finding a sexually explicit text message from Ms Yeo on the applicant’s mobile phone. When confronted, the applicant admitted the affair. After a lengthy discussion, and at Ms Mulvihill’s request, the applicant telephoned Ms Yeo and told her that his wife had found out and that the relationship was over. Ms Mulvihill asked her husband to stop seeing or having any contact with Ms Yeo. Ms Mulvihill also asked the applicant to leave the house. He did so in February 2012 and took a six month lease of an apartment.

13. Within about two weeks of Ms Mulvihill having discovered the affair Ms Yeo's fiancé also knew of it and his relationship with Ms Yeo ended. By mid-March 2016 Ms Yeo was planning to move to Sydney.

14. Ms Yeo and the applicant remained in regular contact by text message throughout March-May 2012, and both from time to time expressed love for the other in those text messages.

15. Ms Yeo made enquiries in March-April 2012 as to the possibility of starting a new position in the Sanofi-Aventis office in Sydney.

16. The applicant gave different accounts to various people as to Ms Yeo’s move to Sydney. He told Ms Yeo’s manager (Ms Ward) in late April 2012 about the relationship with Ms Yeo and that he was very angry at how the relationship had ended and now he was left with nothing. He told his wife that Ms Yeo was moving to the New South Wales Central Coast and that he wanted to never see her again (and they commenced marriage counselling). He told his friend, Mr Simon Martin, that Ms Yeo was moving to Sydney and he thought it would be easier for them to maintain a relationship in Sydney “without the eyes of Queensland on him”. And in May 2012 he told another work colleague (Ms Lori Pirozzi) that Ms Yeo had moved to Sydney so they could continue their relationship and not have to “keep looking over their shoulders”. He also told Ms Pirozzi that Ms Yeo had told him she would have his baby after they returned from an overseas trip later that year.

17. Ms Yeo commenced work in the Sydney office of Sanofi-Aventis on 30 April 2012. On separate occasions in May 2012 she spoke to her friends, one of whom was also a colleague, (Ms Kim Blowers, Sarah Atkins and Ms Jane Berkery) of her anxiety and fear in relation to her desire to end her relationship with the applicant. She also told them of the applicant’s persistent attempts to talk to her despite her requests to be left alone. She told Ms Blowers that after a meeting with the applicant on 16 May 2012, he became upset when she would not tell him where she was going to live.

18. In mid-May 2012, the applicant returned to the family home (to stay with his children while his wife was away). He told his wife on her return that he did not want to move out and that he had subleased his unit. He then slept in the main bedroom of the house and his wife slept in her daughter’s bedroom.

19. The applicant sent Ms Yeo an email on 27 May 2012 expressing his anger and hurt and accusing Ms Yeo of using him as a vehicle to “get out of a relationship that [she] wanted out of”. Ms Yeo’s response referred to her having constant anxiety and sleepless nights. She said she could not go on like this and did not want to do so.

20. In early June 2012, Ms Yeo travelled to Melbourne. She had sought to keep her whereabouts concealed from the applicant. Her concern seems to have been not unfounded since, on 4 June 2012, Mr Mulvihill sent Ms Yeo a text message in which he made references to her having a new boyfriend (Mr Robert Hunt).

21. On 13 June 2012, after an incident in Melbourne when the applicant had attempted to contact her at a hotel where she had checked in as a “silent guest”, Ms Yeo met with the applicant at the Sanofi-Aventis café. After that meeting she recorded in a notebook that she was keeping that she had explained to him very clearly that she did not see a future with him and wanted to be left alone; and that he was pressing for them to have a future.

22. On 13 June 2012, Ms Yeo approached her work manager (Ms Ward) and told her about the relationship; that it had ended; and that the applicant had been making repeated unwanted attempts to make ongoing contact with her and had threatened to ruin her career. She had meetings with the Human Resources Manager and also the Human Resources Director the next day and made similar statements. Ms Ward made arrangements for Ms Yeo to work from home whenever the applicant was in the Sydney office and the applicant was instructed by the Human Resources department at Sanofi-Aventis not to have any further contact with Ms Yeo. (This was later his explanation for the steps he took, in advance, to conceal the fact that he was going to Ms Yeo’s unit on the night of her death.)

23. In late June/early July 2012, Ms Yeo again expressed anxiety and concern to her work manager over the applicant’s behaviour. This included an incident on 27 June 2012 in Sydney when the applicant left a note on her desk at work, which Ms Yeo was not sure was meant as a threat or an apology. It also included an incident in which another work colleague had received an anonymous phone call to the effect that Ms Yeo was a marriage wrecker and having an affair with that colleague’s husband. Ms Yeo denied any such relationship and told Ms Ward that when she was in a relationship with the applicant he had been particularly jealous of her friendship with the man in question.

24. On 5 July 2012, Ms Yeo attended Dee Why police station, for an unrelated purpose. There, she spoke about her concern at the applicant’s behaviour, asking about getting an apprehended violence order. However, no such application was made.

25. On 12 July 2012, Ms Yeo had an appointment with a psychologist in which she said she was fearful of the applicant and that he was angry and had threatened her. Ms Yeo was tested on the Depression, Anxiety and Stress Scale and found to have moderate depression, extremely severe stress and extremely severe anxiety. The applicant was also exhibiting signs of emotion at that time. On 11 July 2012 he called Ms Ward and told her he was receiving counselling. Ms Mulvihill gave evidence that throughout June and July 2012 her husband had been crying almost daily.

26. On 12 July 2012 Ms Mulvihill told her husband that she was “pretty much done”. They had had an argument. Relevantly, in light of some of the appeal grounds now raised, there was an incident that evening (the pillow incident). Ms Mulvihill said that she was in bed with one of her daughters (in her daughter’s bedroom) and her husband came into the room, put a pillow over her head and pushed it down. She said that when she told him that he was making her scared, he said “It’s not you, it’s her”. (She disagreed in cross-examination that her husband was attempting to get into bed with her with his pillow but she agreed that she told police that he used no force and that she did not think it was “real or full on”.)

27. On 13 July 2012, Ms Mulvihill told her husband that she could not continue like this and was going to move out of the house. She noticed carry-on luggage that her husband had prepared to take with him at the front door. The bag was open. She rifled through some of her husband’s things and saw a Big W ticket for a “hoodie”, which she considered unusual because her husband did not have “hoodies” like that and neither she nor her husband regularly shopped at Big W. She also noticed a white plastic chain in the bag, which again she said she thought was unusual. (In cross-examination, she agreed that she had not mentioned the chain in her earlier police statements, first mentioning it in her 1 February 2014 police statement. She said she had lied to the police when she first told them that she had not seen the chain. She also said that she had previously discussed it with her husband and that he had asked her not to mention it to the police (T 748.35). She said she had lied to the police to try to protect her husband. It was put to her in that context that it was in her best interests for her husband to be convicted, with which proposition she disagreed, saying that she did not want the father of her children in gaol for the rest of his life (T 749.39).)

28. About two to three weeks prior to 16 July 2012 (or possibly earlier, in late May/early June), the applicant told Mr Martin that he was devastated that the relationship with Ms Yeo was over and devastated that Ms Yeo had misled him (T 635.36-40). Mr Martin asked how Ms Mulvihill would cope with the applicant soon being away at the same work conference as Ms Yeo. Mr Martin said that the applicant responded that Ms Mulvihill “didn’t need to worry about him fucking Rachelle, she needed to be worried about what he could do to her” (T 636.8); but that the applicant also said in that conversation that he would not do anything.

29. On 13 July 2012 the applicant called his friend, Ms Lynette Paisley, and told her he was suicidal. He said he had not had contact with Ms Yeo for about two months and that she had called him “out of the blue” to ask him about what he was planning to do with the lease expiring on his unit and whether he was going to move back into the family home. He wondered if that meant that she was thinking of a possible future with him. He told Ms Paisley that he had Ms Yeo’s phone number but not her address and that he still loved Ms Yeo.

30. In the period leading up to Ms Yeo’s death, the applicant made a number of internet searches to attempt to discover where Ms Yeo was staying.

31. Ms Yeo died on 16 July 2012. That morning, the applicant, having told his wife that he would later be flying to Melbourne, went to work in the Brisbane office. He flew to Sydney (where there was a work meeting scheduled for the following day), arriving at 4pm. He hired a car and went to the Sydney office of the company (through the basement) at 4.34pm. He left shortly after at 4.39pm. He said that he went to the office to synchronise his computer. He said that when he was in the carpark at the Sanofi-Aventis office he recognised Ms Yeo’s car and that he looked through the “relatively dark tinted windows” and saw an envelope in the passenger seat with an address of Pitt Road, North Curl Curl. He said he could not see the unit number but that the address was either 103, 105 or 108. (No such letter was found by the police in their later searches.)

9. The applicant entered the Marriott Hotel in North Ryde at 4.42pm and checked into his room there at 4.43pm. The applicant’s evidence was that at some time between 5.00pm and 5.30pm he left the Marriott Hotel and went to a pharmacy at Chatswood to get “a bit of background” about what the chemist did in the market, “who they were supporting, prices, merchandisers, things like that” (T 1016), something he said was his practice in connection with his role with Sanofi-Aventis. The applicant said that he left the chemist at about 5.50pm and then drove to North Curl Curl because he wanted to see Ms Yeo (T 1016).

10. The applicant said he “desperately” wanted to talk to Ms Yeo “to get some sort of closure once and for all, and get some things off my chest that I wanted to say to her about what had happened” and that he needed to do that face to face (T 1015; see also T 1018).

11. The applicant’s evidence was that he knew the northern beaches area quite well; that he drove out there; that he first went to Pittwater Road and then Pitt Road; that he went to number 108 but realised this would not be the address as it was a house; then he went back up to numbers 103 and 105, which were unit blocks; and that he had a “gut feeling” that 103 was Ms Yeo’s address. He said he stood out the front “and had a bit of a look”, putting this at about 6.30pm or 6.40pm (T 1017). He said that when Ms Yeo did not come home he went back to the Marriott Hotel at 7.13pm. He said he was wearing khaki cargo type pants, a long sleeved maroon t-shirt and the black hoodie that he said he had bought from Big W (T 1018).

12. At 6pm that day, a neighbour in the unit block where Ms Yeo was living at North Curl Curl (Mr Andrew Smythe), whose balcony was right next to that of Ms Yeo, was on his balcony making a telephone call. He observed a male standing on the vacant block next to the apartment building. Mr Smythe said the man was staring up at what Mr Smythe thought was his apartment and that when the man saw Mr Smythe he turned around and disappeared around the front of the vacant block. Mr Smythe said he was wearing a black jumper with a hood and appeared to be approximately six feet tall. The applicant denied that he was at that address at 6pm.

13. As to Ms Yeo’s whereabouts at around that time, she had left the Sanofi-Aventis office at approximately 6.30pm wearing her work clothes. She drove to a yoga class and she spoke to her father from her car on the way there. Her father said she seemed quite happy.

14. CCTV footage from the Marriott Hotel shows that the applicant entered the hotel at 7.12pm wearing a black top with a white hood, khaki pants and white runners with black vertical stripes. Shortly thereafter, he entered his room. At 7.13pm, the CCTV footage shows that the applicant walked towards the hotel bar wearing a red long-sleeve top. He replied to a text message from Mr Martin at 7.27pm to the effect that he was in the bar but “heading out soon”. At 7.43pm, he called Mr Martin and told him that he was going to catch up with another friend of his, Axel, and have a couple of beers. Mr Martin said that the applicant asked him whether he had a hire car, which Mr Martin said he thought was strange. Mr Martin said he did not (T 638.29). In cross-examination Mr Martin accepted that there had been numerous conversations between the two in the past about hiring a car or using taxis to travel on business (T 645.1ff).

15. At 7.44pm the CCTV footage shows the applicant walking from the bar area past the lobby towards his room. He entered his room at 7.45pm.

16. Further CCTV footage from the hotel then shows the applicant leaving the hotel through the fire escape at 7.52pm, wearing the same clothes with the addition of the black top with white hood. On the CCTV footage, he appears to have chocked the fire escape door open. (His left middle fingerprint was later detected on the internal surface of the fire door.) The applicant concedes (submissions at [9]) that he left the hotel “surreptitiously” that night and that he had attempted to prop open the fire escape door so that he would not be seen or captured on any CCTV cameras when he came back to the hotel. He said that he did this because he had been directed by the company’s human resources department not to have any further contact with Ms Yeo. He said he had it in mind that if Ms Yeo made an issue the next day about him going there he was going to deny it (T 1019).

17. The applicant said that when he had returned to the Marriott Hotel earlier he had parked his car outside the carpark to the Marriott (which he said he routinely did). He drove back to North Curl Curl (T 1020), stopping at a convenience store on the way. He said that he got to the address at approximately 8.40pm or 8.45pm and that he sat in his car for about 5-10 minutes and then saw Ms Yeo’s car turn into the driveway of the building (T 1032).

18. Meanwhile, Mr Hunt had called Ms Yeo at 8pm but there was no answer. He said that Ms Yeo had told him that she might be going to yoga. She called him from her mobile phone at 9.04pm but he did not answer because he was eating dinner. (He attempted to return her call at 9.34pm but there was no answer. By then, as appears from the chronology of events below, Ms Yeo was probably already dead.)

19. The applicant’s evidence was that he was standing on the roadside of the letterboxes outside the unit block at the very top of the path; that he saw Ms Yeo first; that she was halfway along the path when they made eye contact; and that he persuaded her to allow him to go upstairs to the unit with her. (The Crown case was that Ms Yeo would not, in the circumstances, have permitted him inside her unit.) There was no sign of forced entry.

20. Between 9-9.30pm, other residents of the unit block heard an altercation inside Ms Yeo’s unit. The accounts given by the various neighbours of the events that then unfolded are broadly consistent (and in a number of significant respects are accepted by the applicant).

21. Ms Faletoese, who lived in the apartment above Ms Yeo’s, heard a loud female scream some time after 9pm and walked outside the unit block to try and determine where the noise was coming from. She heard a woman scream again about half a minute later and realised the noise was coming from her section of the unit block. She heard a male and female talking really loudly like they were arguing and realised the noise was coming from the unit below hers. She knocked on the door of the unit below and could hear two people arguing, the female screaming and the sound of furniture moving around and banging. She heard the female screaming, loud banging noises, glass breaking and furniture moving around. (The applicant points out that there was no broken glass found in the unit.) She started knocking really loudly on the door, asking if everything was alright. She told her partner to call the police and said to the people inside Ms Yeo’s unit that the police were on the way and to open the door. She said the female replied “Yes call the police”, and the female said she could not open the door, “He won’t let me”. Ms Faletoese said that it sounded like the female was struggling and was just behind the door. She also said that the male voice said “Everything is okay, you don’t need to call the police, everything is okay”. She heard further screaming from the female, glass breaking and furniture moving and then the female screams began to lessen and it became quiet inside the unit. She was unable to push the door open. She estimated the time from the first scream to the point where it went quiet as being approximately 5-10 minutes.

22. Another neighbour, Ms Burrows, heard a female screaming “Oh my God, oh my God” at about 9.15pm and loud banging noises. She went out onto her balcony and heard very loud screaming. She ran down the stairwell to Ms Yeo’s unit where she saw Ms Faletoese bashing on the door and saying “Open this door now” several times. She heard the female screaming and a male voice saying “Everything’s okay, we’re okay”. She said the male voice sounded aggressive and that the female sounded as if she was begging for help and that she was crying and very distressed. She heard the female say “I can’t get to the door” and “Please help me”. She called the police on her mobile phone at 9.18pm and said that while she was on the phone the noise inside the room fell silent. She said by this time it had been approximately 5-10 minutes from when she first heard screaming. She went to the front of the unit block to meet the police. She did not see anyone or any cars taking off down the street.

23. Ms Faletoese’s partner (Mr Gualtieri) went with Ms Faletoese to investigate the female screaming and was on the landing with her while she was knocking on the door of Ms Yeo’s unit. He heard a female voice inside the unit screaming for help, saying she couldn’t get to the door and asking for someone to call the police. He thought the female voice sounded like it was coming from the living room side of the corridor and the female sounded as if she was screaming as loudly as she could. He said the male voice quite calmly said there was no need to call the police and everything was fine. He said the female sounded in distress and was screaming and that whenever the male spoke he spoke very calmly. He went upstairs to call the police and when he returned Ms Yeo’s unit was very quiet.

24. Another neighbour from the floor above, Mr Newcombe, heard some arguing and then shouting coming from the stairwell. When he went out to the stairwell he saw Ms Faletoese knocking on the door and saying “Let me in, open the door”. He also started knocking on the door. He could hear male and female voices. He said the female sounded extremely distressed and that she said “Call the police I need help”. He heard noises of something being pushed around or glass breaking. A few moments after, it went quiet inside the unit. Mr Newcombe heard noises from the female that sounded like rasping for air or a gurgling noise and said it sounded like the noise was coming from the other side of the door on the floor, lasted for a few minutes and was not constant. He later provided police with a hammer to break down the door.

25. Finally, a neighbour from a unit on the ground floor, Ms Kubur, said she heard someone who sounded like a little girl say “Help police help” at some time between 9pm and 9.15pm. She heard a neighbour say “Let her out we are calling the police” and she went upstairs and saw Ms Faletoese knocking on the door. She heard a lot of screaming from inside the unit just behind the door and said it sounded like the female was trying to get away or open the door but someone was stopping her and it sounded like the voice was being muffled. She said the muffled screaming continued for about 2-5 minutes and she then heard something that sounded like a large object had crashed and then there was silence.

26. The applicant’s account of what occurred inside the apartment is summarised later in these reasons ([82]ff). Relevantly for present purposes, he agreed that there had been screams (T 1113), though he did not recall Ms Yeo saying “Oh my God, oh my God”. He said he could clearly recall Ms Yeo saying “I can’t get to the door” and “Call the police” and he accepted that by the latter she was definitely seeking assistance (T 1114.22). He said Ms Yeo was not crying but agreed that she was very distressed (as he says he also was). Nevertheless, he also seemed to accept that words to the neighbours (that everything was okay and there was no need to call the police) were said calmly.

27. The police arrived at the apartment block at 9.25pm. There was no sound from within the apartment. The police managed to open the door slightly with a hammer, saw something blocking the door and, when more pressure was applied to the door, Ms Yeo’s torso and legs were observed near the opposite wall in the hallway. She was lying on her stomach and appeared still and lifeless. There was no one else in the apartment. Bloody footprints leading from the loungeroom to the balcony were observed. There was blood on the balcony rail. There were no footprints in the kitchen or the hallway of the unit or leading from those areas. Ambulance officers arrived at about 9.36pm. After attempts to revive her, Ms Yeo was pronounced dead at the scene at 9.52pm.

28. As to the applicant’s whereabouts after he left the apartment (via the balcony), CCTV footage from the Marriott Hotel showed that at 9.58pm he approached the same fire door as that from which he had earlier left the building. The door appeared to be shut. A short time later he entered the front door of the hotel with his hand covering his face, wearing a maroon shirt, khaki pants and no shoes. At 10.03pm he exited the same fire exit he had used before, wearing a white business shirt, black trousers and carrying a suitcase with another bag on his shoulder and covering his face.

29. At about 10pm, the applicant telephoned his wife. She said that he said to her “She’s gone”; that when she asked him what he was talking about he said again “She’s gone”; and that when she asked “Rachelle?”, he said “Yes”. The applicant’s evidence was that what he said was that she was “gone out of my life” or “gone out of our lives”. Ms Mulvihill said that her husband also said that he had to go now to be with his parents (who were deceased). She interpreted this as meaning he intended to commit suicide. During the course of the evening the applicant made four phone calls to his wife, during some of which she heard sounds of “shushing” or “spraying”. He told his wife he was trying to send her an email. (She received it the following day. It included what appeared to be a suicide letter and some financial information.)

30. CCTV footage from the International Inn at Wolli Creek shows that at 12.08am on 17 July 2012, the morning after Ms Yeo’s death, the applicant drove to the hotel and walked in the front entrance dressed in a white business shirt, black pants and black shoes. At 6.21am he entered Sydney domestic airport and checked in at the Qantas business lounge. He is shown on CCTV in the buffet area of the lounge, where he ate some food. He greeted a work colleague at 6.40am. At 6.57am he left the airport. He called his wife at approximately 7am and told her he was at the airport and there were police everywhere. His wife said that she “saw it on the news”, referring to Ms Yeo’s death, and he said “I know”.

31. The applicant rented a car at 7.05am. He then sent the email to his wife referred to above and sent a work-related email to a colleague at Sanofi-Aventis. He also sent a text message to the National Sales Manager (Mr Swan), with whom he was due to meet that day, saying he would not be coming into work because he was sick. Mr Swan called him at 9.31am and was of the view that the applicant “was putting a sick voice on”.

32. Meanwhile, at 9.30am, the applicant telephoned a sales representative of the company and asked if he could use his credit card details to purchase something to the value of $170 because he had left his wallet at home. He used those details to purchase a ticket in the sales representative’s name on a Virgin Australia flight to travel from Newcastle to Brisbane. He entered Newcastle airport at 10.37am. He entered and exited the airport a number of times between 10.45am and 11am before proceeding through security at 11.02am.

33. The applicant was arrested at Brisbane airport when an Australian Federal Police officer on foot patrol in the airport recognised him as fitting the description of a suspect wanted by the New South Wales Police for the offence of murder.

34. The applicant’s evidence was that he did not know that Ms Yeo had died until he heard it on the radio. He said that she was “alive well and truly alive” when he left the unit (T 1119).

Forensic evidence

58. Forensic examination of the unit revealed blood on the walls and floor of the inside hallway and blood on the internal surface of the door. There was a very large smear of transferred blood as well as projecting bloodstaining in the form of a possible arterial pattern on the hallway opposite the front door. On the wall at the end of hallway nearest to the front door, both expirated blood and transferred blood was observed. On the carpet at the end of the hallway there was a large pool of blood. There was blood on various of the items in the living area. A large pool of blood was observed on the lino floor in the kitchen, which was starting to congeal, as well as blood on the carpet at the entry to the kitchen and blood on the base and up both sides of the wall separating the kitchen from the loungeroom floor. There was a substantial amount of blood located under Ms Yeo’s pink bag (which indicated that the bag came onto the floor after the bloodshed event). Marks were observed through the pool of blood, indicating body parts moving through the blood (consistent with one or more people moving around in the area) and satellite splatter on the floor of the kitchen (indicating a prolonged period of someone standing there bleeding).

59. Bloodstaining was observed on the door frame and floor of the outside balcony. A blood stained print on the balcony railing was developed and indicated to be the applicant’s right palm print in blood. On the driveway below the balcony a bloodstained white plastic chain was observed.

60. A number of shoe prints were observed inside the unit (some being discernible as police or ambulance issue boots). One different style of shoe print was observed in prints leading towards the balcony. The same type of shoe print was observed on the back of Ms Yeo’s jacket hood. Personal effects were strewn on the ground in the hallway. Numerous items were scattered around the living area and there were items on the floor near the pool of blood in the kitchen (including a broken ceramic mug).

61. Agreed facts at the trial in relation to the forensic examination included that: blood and DNA matching that of Ms Yeo only was detected on the northern wall near the lounge room, southern wall of the kitchen, kitchen drawer, internal balcony door, doorstep on the balcony and floor of the balcony; the applicant’s bloodied right palm print was identified on the top of the outside balcony railing with the fingers pointed outwards away from the unit; a left palm impression of the applicant in blood was identified on the lounge room wall of the unit near the kitchen and left index finger and thumb impressions of Ms Yeo were identified on the outside and inside of the entry door. The northern and southern walls of the hallway contained right and left hand and finger prints of Ms Yeo and the southern wall of the hallway contained foot and toe impressions of Ms Yeo. The white plastic chain on the driveway below the balcony contained blood and DNA matching that of Ms Yeo.

Expert evidence

62. Dr Van Vuuren, the forensic pathologist who conducted the post-mortem examination on the deceased, determined the direct cause of death to be multiple stab wounds: a stab wound on the right chest extending through the fourth intercostal space, through the right lung and through the right ventricle and septum of the heart; a small haemopericardium; a small haemothorax; and a stab wound on the left lateral aspect of the neck extending through the internal jugular vein through the larynx but above the vocal cords. Because the incision was above the vocal cords, his evidence was that Ms Yeo would have been able to speak “basically normal” except for swallowing blood after sustaining the wound.

63. Both lungs showed evidence of blood aspiration and there was blood present in the stomach. His evidence was that there were self-defence injuries on both hands as well as multiple bruises and abrasions on the hands, legs, face and upper neck, consistent with blunt force injuries. There was an injury to the nose and blood in the nose.

64. There was a “quite deep” incision from the edge of the deceased’s right thumb to halfway into her right palm, which would have been caused by a sharp object and two incisions on the top of the right hand near the knuckles which were “lined up” and relatively deep, penetrating the soft tissue and into the ligament.

62. Ms Yeo had scattered petechial haemorrhages underneath her left lower eyelid (those usually being caused by ligature of manual strangulation but sometimes by resuscitation) and a few small bruises on the left side of the neck that could be consistent with force applied to the neck (either blunt force or strangulation). There was perimortem bruising on the earlobe.

63. Dr Van Vuuren found no imprint of the white plastic chain on the body and expressed the opinion that the injuries sustained to the neck did not appear to be caused by the chain. Dr Van Vuuren was of the opinion that bruising along the left jawline could possibly have been caused by a forearm around the jaw or a “choke hold”.

64. Professor Duflou, a clinical professor in forensic pathology at the University of Sydney, gave evidence in the Crown case. His opinion was that it was very unlikely that all of the injuries sustained by Ms Yeo were inflicted whilst she was in possession of the knife. He said that the constellation of injuries to Ms Yeo were typical when an assailant causes stab wounds and incised wounds on the deceased while the deceased tries to fend off the assailant. He considered that the injuries to the deceased were of another person having stabbed her as opposed to the hand being forced and then the knife penetrating the skin. In his report dated 30 May 2013, in his opinion:

The multiplicity of locations on the body, the presence of defensive injuries on both hands and the severity of the injuries overall it would be extremely unusual for self-infliction during a struggle.

68. Professor Duflou could not exclude the possibility that Ms Yeo was holding the handle of the knife for at least part of the altercation but there was no autopsy evidence to support that proposition. He considered it extremely unlikely that the two disparately located stab wounds took place by the deceased falling on the knife during the course of a struggle. He considered it unlikely but possible that she would have been able to struggle and move around for a few minutes after receiving the wound to the chest.

69. He said that the track of the stab wound to the neck being surrounded by blood and aspiration of blood into both lungs and swallowing of blood into the stomach suggested a period of survival after the stab wound to the neck which could have been anything from a minute or two to a considerable period of time.

70. Professor Duflou said that either of the two stab wounds had a high potential to be fatal. He thought the stab wound to the neck occurred first, following which there would have been an indeterminate period of survival (which may have been many minutes long). He said that at some stage close to the time of death and after the loss of a large amount of blood from the neck wound, it appeared that Ms Yeo had sustained an air embolism from the stab wound to the neck.

71. He said that the stab wound to the chest, although generally considered lethal in nature, may have been sustained shortly before or immediately after death because of the relatively very small amount of bleeding. Blood staining on the right side of the clothing could have been caused by the chest wound or the neck wound as a result of the body being moved. He said that there were no marks typical of strangulation or injury to the neck structures of the deceased (which would usually be expected to be seen in strangulation) but that it was possible for there to be a degree of neck compression that could not be observed.

72. Professor Duflou said that the injuries sustained by the applicant were trivial in nature. Some could have reasonably been defensive injuries (such as the superficial incision or cut to the palm of his right hand) but that injury could also have been caused when the knife was in the possession of the applicant. A small number of injuries to his fingers could potentially have been the result of a defensive type injury or could have been caused in the process of stabbing someone, or by punching an object, or by general interactions during a violent confrontation.

73. Professor Hilton, a consultant in forensic medicine and adjunct professor at the University of Western Sydney, gave evidence in the defence case. He could not say precisely the order in which the injuries were sustained but in cross-examination agreed that his preferred view was that the neck wound preceded the chest wound. He gave evidence that the frothy blood in the right chamber of the heart indicated that Ms Yeo had suffered an air embolism and he thought it highly unlikely that this came from outside through the chest wound. He considered it more likely to have come from the neck wound.

74. He could not exclude the possibility that during the struggle the knife may at some stage have been in the possession of the deceased. He thought the cut to the applicant’s hand may indicate he was not in possession of the knife at that particular time. In cross-examination he agreed that the cut to the hand was extremely superficial.

75. Professor Hilton said that the disparate anatomical sites made it unlikely that both penetrations took place by Ms Yeo falling on the knife during the course of a struggle. (The applicant emphasises that on his account of events Ms Yeo was only holding the knife at the time of one of the two main stab wounds.)

76. The applicant’s account of the altercation with Ms Yeo (set out in more detail shortly at [82]ff) was, contrary to the view expressed by the expert witnesses as to the more likely sequence of events, that the stab wound to Ms Yeo’s chest occurred first (as they were wrestling over the knife when it was still in Ms Yeo’s hand) and that the neck wound occurred after: Ms Yeo had called out to the neighbours that she could not get to the door and to call the police (and, it can be added, after he had said they were all right and did not need the police); they had continued to wrestle; he had punched her in the face to make her let go of the knife; he had grabbed it; and she had moved so as to cause him to fall forward at which time she was stabbed in the neck. He was adamant that no part of the struggle took place in the kitchen, except that that was where Ms Yeo first had the knife (T 1119).

Conviction appeal

77. Grounds 1-10 of the notice of appeal relate to the appeal against conviction. As already noted, ground 9 was not pressed, nor were various of the complaints the subject of ground 6. We turn to the grounds that were pressed on the conviction appeal.

Ground 1 – the terms in which self-defence was left to the jury

1.   The learned trial judge erred in her directions to the jury on self-defence.

78. Under ground 1, the applicant submitted that the learned trial judge erroneously failed to direct the jury on “both limbs” of the defence of self-defence. The applicant’s contention is to be considered in the context of the well-known fundamentals of self-defence in relation to murder. In a case where self-defence is sufficiently raised by the evidence to require that it be left for the jury’s consideration as a complete defence, by force of s 418 Crimes Act 1900 (NSW) the jury may return a verdict of guilty of murder only if the Crown proves beyond reasonable doubt that in acting as he did (in this case, inflicting the knife wounds) the accused did not believe his actions were necessary to defend himself.

79. Where the complete defence is properly left to the jury, should the jury find this negative proposition proved, that will eliminate self-defence. Subject to proof beyond reasonable doubt of all other elements and exclusion of any other defences, the verdict would be guilty of murder.

80. If the Crown should fail to satisfy the jury beyond reasonable doubt that the accused did not believe his actions were necessary in self-defence but did prove that the infliction of the knife wounds was not “a reasonable response in the circumstances as he [perceived] them” (the “second limb”, in the applicant’s terminology), he would be not guilty of murder, but guilty of manslaughter. Outright acquittal would follow only if the Crown failed to prove beyond reasonable doubt this second negative proposition as well.

81. The applicant did not conduct his case on the basis of self-defence. His counsel did not open to the jury that he had inflicted the two critical knife wounds believing that this was necessary for him to defend himself. Nor did he suggest this in his evidence regarding the fatal struggle. To contend that he acted in self-defence would have involved acknowledgement of intentional wounding. The applicant’s evidence was that he did not intentionally inflict any knife wound but that Ms Yeo sustained knife penetrations of her chest cavity and then of her neck accidentally, in the course of a struggle in which she was attempting to stab the applicant.

82. At T 1035-1046, the applicant’s evidence of how Ms Yeo sustained the fatal knife wounds was as follows. In Ms Yeo’s flat at North Curl Curl, the two of them commenced a discussion which developed into a heated argument. Whilst standing in the lounge room about one metre apart the applicant told Ms Yeo she was self-centred. She slapped him across the side of his face with her right hand. The applicant grasped Ms Yeo “by the scruff of her neck and held [his] fists under … her chin”. The applicant said he looked Ms Yeo in the eyes and said “I don’t know who the fuck you think you are, but don’t ever do that to me again”.

83. As these words were spoken the applicant was pushing Ms Yeo backwards “firmly” from the living room into the kitchen. Whilst he was doing so the deceased turned away from him. When she turned back she had “a very large stainless steel knife” in her right hand, raised to shoulder height with the thumb extended upwards. She said “Get the fuck out of here”. The applicant said he raised his hands defensively to shoulder height and told the deceased not to be stupid, to put the knife down. She “lashed out” with the knife towards the right side of his chest. He brought his right hand across his body defensively and the knife nicked his right palm.

84. The applicant gave evidence that he thought “I’m in massive trouble here because I didn’t have anything. Apart from me, I didn’t have anything to hit her with, or get the knife out of her hand” (T 1036.49). He told her repeatedly to put the knife away and not to be stupid. “[S]he just kept saying, ‘Get the fuck away from me, get out of here’”. Ms Yeo stepped forward into the living room towards the applicant and for a second time swung the knife at him. He could see in her eyes that she was angry and he again thought he was “in trouble”. He backed into the middle of the living room. Ms Yeo continued to advance and when she “lunged at me a third time”, in a “swishing motion, it wasn’t a stabbing motion”, he seized her right wrist with his left hand, the knife still being held in her right hand.

85. The applicant’s evidence continued that he then seized Ms Yeo “around the scruff of her neck again, like I had before, and I had a hold of her jacket”. He continued to tell her to let the knife go and not to be stupid, she shouted at him to let her go. He said they were “literally bouncing off the walls” (of the living room, the end of the hallway, the wall separating the kitchen from the hallway and the living room wall that extended towards the kitchen) (T 1038.14). He pushed her backwards against a wall of the unit repeatedly, whilst her right hand was above shoulder height. Ms Yeo’s right hand was pushed against the wall by the accused, using his left hand applied to her wrist.

86. Ms Yeo pushed against the applicant, trying to get free. She managed to push the applicant back against another wall. He thought “she was getting, I guess, the better of me up against the wall”. He then “shoved her really, really hard”, still with the same grip on her right wrist and on the clothing at her neck. As Ms Yeo went backwards she tripped and fell to the floor. The accused toppled over with her. As Ms Yeo hit the floor she rolled to her left. The applicant tried to fall to his right (her left) to avoid falling on top of Ms Yeo. As they fell “I saw the knife hit her somewhere in the right-hand side. I could feel that it had hit something hard, and it didn’t feel like it was the ground”.

87. He gave these answers at T 1041.14-27:

Q.   Where did her right hand end up as you fell to the ground with her?

A.   As soon as we hit the ground the knife wasn’t in her. As soon as she hit the ground, the knife wasn’t actually inside her, it was out, but I could notice there was blood on her. So we hit the ground, my best guess is the knife has gone into her, but it didn’t stay inside her, if you know what I mean. It was just in and out, because I … can’t recall seeing the knife actually inside her jacket, in her. So the knife has struck her there and then it’s come out. And the first thing I knew that I remember seeing blood on the knife when we were back on the ground, and the knife was in her hand with my hand still attached to it.

Q.   So is it your evidence that the knife entered Ms Yeo’s chest in the free fall topple to the ground?

A.   No, I think it actually entered as we hit the ground.

88. The applicant said that at this point he heard neighbours knocking on the door of the apartment but told them everything was all right. He said that he knew “the knife had gone into her side but … didn’t have any idea about the severity”. He thought he had control of the situation. He still held Ms Yeo’s right hand, with the knife, and now pressed it against the ground. He told her repeatedly to let the knife go but she did not. So he punched her in the face, thereby stunning her so that she released her grip. The applicant said that he then threw the knife on the ground away from where they had fallen, in the living room, and got up and went to the front door to leave.

89. When he reached the front door the applicant saw Ms Yeo “get to her hands and knees and she was going for the knife”. The applicant “tackled her” from her right side, bringing her back to the ground, and reached out and seized the knife in his right hand before Ms Yeo could get to it. Ms Yeo grasped the applicant’s right wrist with her left hand. He struck her right hand with the knife to stop her from trying to use that hand to get control of the knife. He then “forced [Ms Yeo] down so she couldn’t use [the right] hand to grab the knife”. At this stage the applicant was on top of Ms Yeo on the floor, the two of them facing each other.

90. Then, with the knife held in the applicant’s right-hand in between himself and Ms Yeo, he tried to get to his feet. He gave these answers at T 1044.42-1045.5:

A.   … I was sort of on my haunches … and using her as a leverage pushing down on her, not to push her away, but to push her to use her legs to get up, and once I got on my feet, I would withdraw from her, but as I was on my haunches, and I was in a really, really awkward position, one foot was sort of up on her shoulder and one foot was on her abdomen type area, because my weight was leaning forward on top of her, and I just distinctly remember it was the feeling you get when you are pushing against something, and all of a sudden there was no resistance, and I fell forward into her, and she turned, you could see the knife just going towards her face, she turned to her right and turned away.

Q.   And what did you see happen then?

A.   Just saw the blood coming out of her neck, side of the neck and the blood was just pouring out of the side of the neck …

91. The applicant said that he knew it was bad, that he grabbed one of her hands and put her hand over the side of her neck and that he then panicked and fled the unit, jumping over the balcony rail. At T 1056.19 he said “I never once formed any intent to hurt her in any way shape or form, before, during the night of the 16th, never …”.

92. In defence counsel’s address there was still no positive case of self-defence put to the jury. It was not suggested to them that either of the two critical knife blows had been struck by reason of a perception on the applicant’s part that this had been necessary to defend himself. It was submitted to the jury that they would not be satisfied beyond reasonable doubt that either knife wound had been inflicted intentionally at all. This was diametrically opposed to any notion that the critical knife wound had been inflicted with intent, in order to defend against perceived threat.

93. The uncontested report of Professor Duflou established that the two critical stab wounds were as follows:

A 95 mm stab wound on the right side of the chest, with a wound track passing towards the midline of the body for a distance of about 18 cm, and passing between the 4th and 5th ribs, through the anterior border of the right lung and through the right ventricle of the heart. There was also a simultaneous defect in the interventricular septum of the heart. Associated with this stab wound was 230 ml blood in the right chest cavity, and about 10 ml blood in the pericardial sac.

A 45 x 5 mm stab wound on the left side of the neck, with a wound track passing through the sternocleidomastoid neck muscle, the left internal jugular vein and into the larynx above the vocal cords. Associated with this injury was inhaled blood in the trachea and bronchi, as well as swallowed blood in the oesophagus and stomach cavity. Bleeding was noted along the wound track.

94. Professor Duflou’s report contained the following with respect to the force required for the knife to penetrate the deceased’s body to create these wounds:

What force was required to inflict the injuries? The amount of force required to inflict a stab wound is largely dependent on the sharpness of the point of the knife. If the point of the knife is sharp, relatively little force is required to cause both the neck and chest injury. However, if these two wounds were inflicted using a blunt tipped knife, considerable force would be required to inflict those injuries.

95. Oral evidence of Professor Duflou regarding this was as follows (at T 777.21-29):

Q.   You say that a knife like that can penetrate the skin the amount of force used to sustain the wound as to the neck and chest would be quite minor, is that correct?

A.   Yes you certainly don’t need a large amount of force to get through the skin.

Once a knife point has passed through the skin, the resistance of the remainder of the body, with the exception of bone, is less than that of skin, so once it has gone through the skin it will keep on going.”

96. Professor Duflou did not, either in his report or in oral evidence, elaborate on the terms “relatively little force”, “considerable force”, “quite minor” force or “[not] a large amount of force”. These indeterminate descriptions were not further explained by reference to units or by comparison with the force required for other biomechanical actions which might have been within the jurors’ experience.

97. On the same subject Dr Van Vuuren said at T 678.3-21:

Q.   The stab wound to the right chest, which you have told us was 18 centimetres deep, are you able to say what sort of force would have been required to inflict that with a knife, say a sharp knife or the type of knife you’ve seen a photograph of?

A.   There would have been moderate force definitely applied. If the tip of the knife is very sharp, you don’t need that much force to put the knife in.

Q.   Why?

A.   Because your skin is most resistant, except for bone and cartilage, so if you get the knife through the skin then it is quite easy to penetrate the body.

Q.   As you said, the knife went in between the ribs?

A.   Yes.

Q.   So it didn’t hit bone?

A.   No.

Q.   What about the neck wound?

A.   The same principle.

98. Dr Van Vuuren also was not asked to explain his terms “moderate force”, “[not] much force” or “quite easy” as used in this passage of evidence.

99. Before the commencement of addresses at T 1141.1-1142.43, 1143.30-33 and again at T 1146.18-1152.48, her Honour discussed with counsel whether manslaughter by excessive self-defence should be left to the jury in the summing up. Her Honour pointed out that the difficulty with doing so would be that upholding self-defence would depend upon the jury finding a reasonable possibility that each of the two fatal wounds was inflicted deliberately with intent either to kill or to cause grievous bodily harm, albeit in the belief this was necessary for the applicant to defend himself. This would obviously run counter to the applicant’s evidence and his entire case. Namely, that the fatal wounds had not been inflicted by a deliberate act upon his part, let alone by an intentional act for the purpose of self-defence, but arose from accidental penetration of the knife into the deceased’s chest during a fall and into her neck during a subsequent struggle. The applicant’s counsel nevertheless asked that manslaughter by excessive self-defence be left: at T 1143.30-33.

98. Defence counsel did not during this discussion or at any later time request the trial judge to leave to the jury the possibility of an acquittal on the basis of the complete defence of self-defence. That would have required a direction that, if they found the first two elements of murder proved beyond reasonable doubt (that a deliberate act of the applicant had caused the death of the deceased and that the applicant’s act was intended to inflict death or grievous bodily harm) they would acquit if the Crown had failed to exclude both of (a) any reasonable possibility that the applicant believed it was necessary to stab the deceased deliberately to defend himself against an attack by her and (b) any reasonable possibility that the infliction of the knife wounds was a reasonable response in the circumstances as he perceived them.

99. From the fact that neither her Honour nor defence counsel made any reference to the possibility of leaving the complete defence, it is clear that neither thought there would be any basis upon which the jury could have been left with a reasonable doubt as to whether each of the fatal knife thrusts went beyond a reasonable response to any perception of the circumstances which the applicant could possibly have held. The view of this Court, likewise, is that, whatever the jury may have taken from the evidence about “moderate” force (and similar descriptions given by the forensic medical specialists) and whatever they concluded about the applicant’s perception of his struggle with Ms Yeo, they could not have considered it a possibility that a knife thrust either laterally through the chest cavity at the level of the lungs and heart or through the neck in a position to transect the jugular vein was a reasonable response. A conclusion that either stab wound might, as a possibility, have been a reasonable response to whatever attack the applicant perceived he was under would have been perverse.

100. Her Honour reserved the decision as to whether or not to leave manslaughter by excessive self-defence to the close of the defence address. The applicant’s counsel did not put self-defence to the jury either on the basis of a complete defence justifying acquittal or on the basis of excessive self-defence leading to a verdict of guilty of manslaughter. She did not suggest any interpretation of the evidence which could accommodate the view that the fatal wounds had resulted from deliberate knife blows by the applicant or that any such deliberate action had been taken with the intention of inflicting death or grievous bodily harm as a means of the applicant defending himself against perceived danger from attack. Rather, the defence closing address, especially at T 1301.15-1306.4, pressed the applicant’s account of the knife wounds as having been sustained accidentally.

101. In the final stages of defence counsel’s address her Honour informed counsel in the absence of the jury that she would leave excessive self-defence as a basis for a verdict of guilty of manslaughter (at T 1330.49-1331.46) but would draw the jury’s attention to counsel’s decision not to contend for a verdict of manslaughter being available to the jury on that basis. Her Honour said she would not leave manslaughter by unlawful and dangerous act, which had been raised as a possibility at T 1115.41-49 but never requested by defence counsel. At T 1331.20 her Honour gave counsel the written directions she proposed to provide to the jury on the elements of murder, including, as an element to be proved by the Crown beyond reasonable doubt, that the accused was not acting in self-defence. The applicant’s counsel had no objection to that document (at T 1331.35 and T 1333.11).

102. At T 1332.18-1333.20, her Honour discussed with counsel the then recently published decision of the High Court in James v The Queen (2014) 253 CLR 475; [2014] HCA 6 and pointed out its relevance to the question of whether manslaughter by unlawful and dangerous act should be left to the jury. Her Honour provided counsel with a draft proposed “question tree” for the jury and invited counsel’s response.

103. The defence address then concluded (at T 1347.25). A further draft of the question tree was provided to counsel (at T 1349.10). It became MFI 35. At T 1349.48 her Honour acknowledged what she understood to be defence counsel’s “proper concession … there is no question but that that response … was [excessive] in all the circumstances, so an outright acquittal is not an option that is open in this case”. Defence counsel did not contradict that this concession had been made. Discussion of the question tree continued from T 1349.10-1351.28. At T 1351.20 defence counsel did not take up her Honour’s invitation to make any additional submission regarding manslaughter by unlawful and dangerous act. Defence counsel said she had “no issue with question 6” in the question tree, which was as follows:

6.   In considering that question [the question of self-defence], if you are satisfied that the evidence allows for the reasonable possibility that the accused believed that it was necessary to deliberately stab the deceased to defend himself from an attack by the deceased with the knife, then you should return a verdict of guilty of manslaughter because the Crown will not have proved the accused was not acting in self-defence.

106. During the summing up, her Honour’s written directions on elements (MFI 33) and the question tree (MFI 35) were given to the jury (see [79] and [413] respectively). The summing up dealt with self-defence at [73]-[75], [82]-[85], [335]-[360] and [412]-[416]. The self-defence direction was given with respect to both of the fatal wounds as follows:

[348]   If you consider on the evidence that there is a reasonable possibility, and I will repeat it, that the deceased grabbed the knife, that she used it threateningly, that he actually believed that she was going to use it against him, and that he believed it was necessary in his own defence to use it against her and that he deliberately inflicted one or both wounds with the intention to either kill her or inflict grievous bodily harm, then the appropriate verdict for you to return would be not guilty of murder but guilty of manslaughter.

…

[353]   Additionally, if you consider there is a reasonable possibility that the chest wound was actually sustained accidentally, that is in the way the accused described it, that there was a fight over the knife but that he didn’t inflict the chest wound, that she did fall onto the knife in the way that he described, but that he then obtained possession of the knife and deliberately stabbed her in the neck, in his own defence, in order to prevent her getting control of the knife after he punched her then again, if you regard that account, or that version of the facts as possible or reasonably possible and you consider that it is reasonably possible, that he believed that was necessary to do so in his defence then again, the appropriate verdict is not guilty of murder but guilty of manslaughter.

[354]   Again, I remind you, apologies for the repetition, but I am not urging that version of the facts as facts you ought to find, I am simply leaving it to you as an alternate basis upon which a verdict of manslaughter might be returned.

[355]   In considering the question of self defence, if you do, as to whether the accused may personally have believed it necessary to stab the deceased in the chest or the neck or the chest and the neck and that it was necessary in his defence to act that way, you must consider the circumstances as you believe it reasonably possible that the accused perceived them or might have perceived them.

[356]   You must take into account any particular attitude or characteristics of the accused which you think might have borne upon his perception in the flat that night, and which had a bearing, or might have had a bearing on any belief you think he might have formed.

…

[359]   I direct you also that if you find the accused did actually form a belief, or might have formed a belief that stabbing the deceased was necessary for his own defence, it is irrelevant that he may have been mistaken as to any actual threat he faced from the deceased. It is how he perceived them, it’s how he was placed in the circumstances that night, circumstances which, on any view of events, you would accept he was at least partly the author of.

[360]   If on the other hand, ladies and gentleman, you are satisfied on all the evidence that there is no basis for you finding that he might have believed that stabbing the deceased was necessary in defence of himself, whether because the Crown has proved otherwise, or because there is simply no evidence to support it, and the evidence led in support of guilt is overwhelming, in particular, the Crown has impressed upon you, his forced entry into the unit, and his attack upon the deceased, or on any other view you take of the facts, if you are of that view, of course then self-defence, which would otherwise reduce a verdict from one of murder to one of manslaughter, is not available, and in those circumstances, you would regard the Crown as having disproved self-defence as having any operating factor in this case, and you would return a verdict of murder, because that would be the only appropriate verdict.

107. Her Honour explained that as trial judge she was obliged to raise the subject of self-defence even though the applicant had not. On this appeal it has not been contended that the directions at the above-mentioned paragraphs were deficient in any respect, concerning the partial defence.

108. Ground 1 is urged by the applicant in the following submission (for which R v Kartarzynski [2005] NSWCCA 72 is cited in support):

36.   … The ‘defence’ of self-defence, once raised on the evidence, must be disproved by the prosecution beyond reasonable doubt (section 419). There are two limbs which must be disproved. Relevantly, the prosecution must prove beyond reasonable doubt that the accused did not believe the conduct was necessary to defend himself, and, that the conduct was not a reasonable response in the circumstances as he perceived them. There is both a subjective test as to the accused’s belief and an objective test as to the proportionality of the accused’s response. If the prosecution fails to disprove both these matters beyond reasonable doubt the accused is entitled to be acquitted. If the prosecution fails to disprove one of them, then the accused may be convicted of manslaughter.

109. The applicant’s complaint is that her Honour failed to instruct the jury on the “second limb” of self-defence so that the full defence could be upheld and a verdict of not guilty returned. However this direction was only required if the evidence was capable of supporting a conclusion that there was a reasonable possibility that the accused’s response to the threat he perceived was a proportionate response. The evidence was not capable of supporting such a conclusion.

110. Further, given that a verdict of guilty of murder was found notwithstanding that manslaughter by excessive self-defence was left to the jury, it must follow that the jury found the Crown had rebutted beyond reasonable doubt the first component of the complete defence. Even if her Honour had instructed them as to the second aspect of the full defence, the jury, being satisfied beyond reasonable doubt that the applicant did not inflict the wounds in the belief that this was necessary to defend himself, could not have reached a verdict of not guilty by reason of self-defence. Therefore failure to instruct on the second essential aspect of the full defence cannot have given rise to a miscarriage of justice.

111. This is quite a different situation from that which arises where there has been a failure to leave manslaughter on some basis which was viable and the jury then returns a verdict of guilty of murder. In such a case it has been said that the verdict does not exclude the possibility that guilty of manslaughter might have been returned if properly left in the summing up: R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385. Here, manslaughter by excessive self-defence was left and hence the element which is common to the direction on that subject and to a direction on the complete defence was before the jury. These facts are in contrast to those of Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15.

112. There was no basis in the evidence upon which her Honour could or should have left to the jury the “second limb” and, hence, the complete defence of self-defence. Even if there had been a basis for this in the evidence, the jury’s verdict returned on the directions they were given about the first limb shows that they would not have upheld the complete defence. The applicant therefore lost nothing by reason of the “second limb” not having been left. Leave should be given to argue ground 1. Ground 1 is rejected.

Ground 2 – Failure to leave manslaughter by unlawful and dangerous act

2.   The learned trial judge erred in not leaving manslaughter by unlawful and dangerous act to the jury.

113. As already noted, the possibility of leaving manslaughter by unlawful and dangerous act was never raised or advanced by defence counsel. She did refer to voluntary manslaughter by criminal negligence at T 1143.30. This was mentioned fleetingly on the basis that the applicant had negligently left the deceased’s apartment knowing she was bleeding profusely. Her Honour drew counsel’s attention to the fact that if murder was not found proved on the basis of the applicant’s acts up to that point, the applicant would be entitled to a verdict of not guilty (or guilty of manslaughter by excessive self-defence) and that the Crown had not opened or attempted to support a case arising from acts or omissions after the infliction of the two critical stab wounds. This was undoubtedly correct and defence counsel evidently thought better of pressing for a direction about manslaughter by criminal negligence. The subject was not raised again.

114. At T 1331.4, her Honour stated she would not sum up on manslaughter by unlawful and dangerous act (having come to the view that if the jury were to find proved beyond reasonable doubt that it was the deliberate act of the accused that caused the death, then nothing less than a very serious injury could have been intended. The applicant’s counsel did not demur. In accordance with Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31, an unlawful and dangerous act is one contrary to the criminal law and which carries with it an appreciable risk of serious injury. An accused will be guilty of manslaughter on this basis if:

1. the accused intentionally commits an act;

2. which is unlawful and dangerous;

3. which results in death;

4. in circumstances where a reasonable person in the accused’s position would have realised that by the act another person was exposed to the appreciable risk of serious injury.

115. Proof of intention to kill or cause grievous bodily harm, as required for murder, is obviously not necessary to make out manslaughter on this basis. The applicant seeks to support this ground of appeal on the basis that the infliction of the two critical stab wounds was the unlawful and dangerous act. He relies upon the evidence of the forensic medical specialists which, he submits, was that “only moderate force was needed to inflict the wounds sustained by the deceased”.

116. As held in Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20; R v Kanaan and Lane v R (2013) 241 A Crim R 321; [2013] NSWCCA 317, the question whether a trial judge is obliged to leave manslaughter on a particular basis, notwithstanding the accused’s failure to request such a direction and/or despite positive opposition to it, turns upon whether there is evidence to support the alternative verdict. Put another way, it is whether the case for manslaughter is viable.

117. Here, if the jury found that the first element of manslaughter by unlawful and dangerous act – intentional infliction of the two stab wounds – was proved beyond reasonable doubt, they could not fail to find that such wounds were intended to cause either death or grievous bodily harm. Whatever degree of force the jury may have thought to be comprehended by the terms “moderate” and the like, as used in the evidence of the forensic medical experts, the intentional thrusting into the chest cavity of a knife blade long enough to pass 18 cm through the right lung to the heart could not have been found by the jury to have been accompanied by an objective short of inflicting grievous bodily harm. Likewise, the stab to the neck with sufficient force to penetrate the musculature and jugular vein and to reach the larynx, if deliberate, necessarily by its nature would involve the intention requisite to support the charge of murder.

118. There was no viable case to be left to the jury on this evidence that the stabbing if deliberate might have been no more than dangerous – that is, merely carrying an appreciable risk of serious injury but without intent to inflict at least grievous bodily harm. The nature of the wounds inflicted would not viably permit the jury to find that these were unlawful and dangerous acts stopping short of having been intended to inflict death or grievous bodily harm. Leave should be given to argue ground 2. Ground 2 is rejected.

Ground 3 – Provocation

3.   The learned trial judge erred in not leaving provocation to the jury.

119. The date of Ms Yeo’s death, namely, 16 July 2012, preceded the amendments to s 23 of the Crimes Act made by the Crimes Amendment (Provocation) Act 2014 (NSW). Those amendments restricted the partial defence of provocation to the circumstance where the act or omission causing death was a response to “extreme provocation”, as defined. The amendments commenced on 13 June 2014 but do not apply to persons on trial for a murder allegedly committed before then (Crimes Act, s 23(9)).

120. For murders allegedly committed prior to 13 June 2014, the previous form of s 23 of the Crimes Act is applicable. It provided for a partial defence of provocation which reduced murder to manslaughter where the act causing death was “done … under provocation”. Section 23(2) defined such an act as one which was the “result of a loss of self control on the part of the accused that was induced by any conduct of the deceased ... towards or affecting the accused” (s 23(2)(a)) in circumstances where the conduct of the deceased was such “as could have induced an ordinary person in the position of the accused to have so far lost self-control as to have formed an intention to kill, or inflict grievous bodily harm upon, the deceased” (s 23(2)(b)) (emphasis added). The relevant conduct of the deceased could have “occurred immediately before the act … causing death or at any previous time”. The test posited by s 23(2)(a) is a question of fact whereas the test posited by s 23(2)(b) is a question of opinion or “evaluative fact” (Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 at [16]).

121. Critically, former s 23(4) provided that where “there is any evidence that the act causing death was an act done or omitted under provocation” then the onus is on the prosecution to disprove provocation beyond reasonable doubt. Hence, the test for whether a trial judge should leave the partial defence of provocation to the jury is whether “on the version of events most favourable to the accused which is suggested by material in the evidence, a jury acting reasonably might fail to be satisfied beyond reasonable doubt that the killing was unprovoked in the relevant sense” (Masciantonio v The Queen (1995) 183 CLR 58; [1995] HCA 67 at 67-68 per Brennan, Deane, Dawson and Gaudron JJ; Stingel v The Queen (1990) 171 CLR 312; [1990] HCA 61 at 334 per the Court).

122. In this case there was no submission made to the trial judge that provocation should be left to the jury. As the Crown stated in their submissions, “[t]the word [provocation] was never mentioned by anyone in the trial” (Crown submissions at [24]). Despite this, the applicant now says the trial judge erred in failing to direct the jury on the issue.

224. In Grogan, RS Hulme AJ observed (at [72]) that Hoeben CJ at CL’s approach accords with that apparent in the remarks of the majority of the High Court in Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63 at 209 to the effect that “the lie must relate to a material issue because the telling of it must be explicable only on the basis that the truth would implicate the accused in the offence with which he is charged. It must be for that reason that he tells the lie”.

225. Post-offence conduct may also be relevant to negative a defence of self-defence or provocation (see Gall v R [2015] NSWCCA 69 at [92]-[93]). In Gall, the appellant was convicted of a number of offences, including murder. The appellant admitted he had shot the deceased. The issue before the jury was the intention of the appellant at the time of the shooting and the relevant question was whether the Crown had negatived the appellant’s less culpable explanation for the shooting (i.e., that he was defending himself and his father out of genuine fear) to the relevant standard. On that issue, the Crown relied on the post offence conduct. Hoeben CJ at CL (with whom RA Hulme J and Davies J agreed) held (at [91]-[93]) that in those circumstances a consciousness of guilt direction would have involved circular reasoning:

When the issue before the jury was as clear as this, to have given a consciousness of guilt direction would have needlessly complicated the question which the jury had to decide. It would have involved a circularity of reasoning, i.e. the jury could only be satisfied as to consciousness of guilt if they were also satisfied that Kevin Gall had the intent necessary for murder.

It would involve the triumph of form over substance and an empty exercise in semantics to require a trial judge in the circumstances of this case to give a direction to the jury that the post offence conduct of Kevin Gall, while capable of giving rise to an inference of guilt of murder, was also capable of giving rise to a less serious or even innocent inference and for that direction to be couched in consciousness of guilt terminology. This is because that very issue was the fundamental question for the jury to decide. They were well aware of the competing issues as to intent as a result of the addresses by counsel and her Honour’s comprehensive summary of the competing cases in relation to which there has been no complaint. The evidence of Kevin Gall’s post offence conduct was simply part of the Crown’s case to rebut his contention that he had acted out of fear and in self-defence.

Kevin Gall’s submission that the evidence of his post offence conduct could not distinguish between a consciousness of guilt for murder or manslaughter is misconceived. At no time was it suggested by any counsel or her Honour to the jury that the post offence conduct could be used in this way or was capable by itself of establishing guilt of any particular offence. It was simply part of the Crown’s overall case to establish Kevin Gall’s intention at the relevant time and to establish the negative proposition beyond reasonable doubt that Kevin Gall did not personally believe that it was necessary for him to shoot at the deceased to defend his father and himself.

226. In The Queen v Baden-Clay, the High Court considered whether the post-offence concealment and lies of the accused could be used specifically to prove his intent to murder. The Court held that there is no rule that post-offence conduct never serves to distinguish intent as between murder and manslaughter (at [73]-[77]).

227. Where there is an alternative charge, an assessment must be made as to whether evidence of consciousness of guilt serves to prove one charge or the other (R v Ciantar (2006) 16 VR 26; [2006] VSCA 263 at [40]-[42], [64]-[68], [77]-[78], [81]-[87]). It will generally be for the jury to decide whether evidence of post-offence conduct is related to the crime charged or to some other culpable act (The Queen v Baden-Clay at [73], approving the decision of the Supreme Court of Canada in R v White [1998] 2 SCR 72). The issue is determined in light of the specific facts of the case, there being no “rigid prescriptive rules as to when and in what precise terms an Edwards-type direction [that the jury can take into account a lie only if they are satisfied that it reveals a knowledge of the offence or some aspect of it and that it was a deliberate lie told because the accused knew the truth of the matter would implicate him in the offence] should be given” (Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28 at [15]).

228. In the present case, the complaint is that there was no distinction in the summing up on the post-offence conduct distinguishing between murder and manslaughter. Reference is made to what was said at [516]-[517] and later at [581]-[583] and [594]:

[516]   The Crown drew your attention to the accused’s evidence of jumping over the balcony, his evidence of having disposed of the knife in an undesignated location near a golf course or a reserve, and in different locations, his clothing, and then his explanation that he took his shoes off because he was hot, as just unacceptable. The Crown submitted that his deliberate disposition of the knife and his clothing was to ensure that there was nothing remaining in his possession which would associate him with the murderous assault on the deceased in the unit. The Crown also submitted that leaving the hotel by the fire stairs after changing into other clothes, after his unsuccessful attempt to return to the hotel by the fire stairs, forcing him to enter the hotel barefoot, and his attempts to conceal his face from security cameras at the hotel, and then at Brisbane Airport, getting off the plane and attempting, as described the by the police officer in his statement, to conceal his face, is further evidence of his determination to conceal what he well knew to be his criminal liability for the injuries that the deceased had suffered, given that he left her seriously injured.

[517]   In order for you to use what I described in that very compact way of the accused’s post-offence conduct as evidence of his guilt, you would need to be satisfied that there was no other explanation for what he did, other than to conceal his guilt.

…

[581]   As I have directed you, if you think that the commencement and the continuation of what I described as the post offence conduct, that is not to suggest that he had done anything consistent with the Crown case in the home unit, because it is not my job to find that fact, but it’s described at law as post offence conduct, because that is how we identify it from other conduct, if you think there is a reasonable possibility that the reason he went over the balcony and ran away, and threw things away, and did what he did thereafter was out of panic, and not because he knew he was responsible for what had occurred, in the sense that it was his act or acts that caused those fatal wounds, then the post offence conduct would not be available to you to reason to a conclusion of guilt because there is another explanation for it.

[582]   And people, you might think, are all different. That much is an unremarkable observation by me. People respond to stressful situations in different ways. There is no gold standard by which you might think a person should act when confronted, on the accused’s case, with what he say occur, and what had happened involving him in that home unit. On the other hand, you are entitled, and indeed both counsel urge you to look at what he did from your perspective, taking into account what you consider might have been motivating him at the time. On the Crown case there is no explanation for not going to the door and opening it and letting the people in to help his past girlfriend who was bleeding very very profusely from the neck, and who he then had seen by that stage as I recall it was bleeding from the chest.

[583]   Ms Traill submits in hindsight, and that might be so, and indeed were we to interrogate any of you you would probably very likely say you would have gone to the door. But that is not the test. The question is whether you consider it is reasonably possible that he panicked, and ran away for that reason, not as the Crown would urge you because he well knew that he could not account for himself and he proceeded thereafter to take every effort he could to conceal the fact that he was in the unit having inflicted those fatal wounds.

…

[594]   I have reminded you as to how you must deal with post offence conduct, or flight, sometimes it’s referred to as flight, before reasoning to the conclusion that that conduct objectively established by the accused’s movements over the balcony, back to the hotel, from the hotel to the airport and beyond evidences a consciousness of his guilt.

229. The applicant submits that the jury should not have been directed that post offence conduct could be used as evidence of consciousness of guilt of murder when there was an alternative charge of manslaughter to which it may also have been equally relevant (referring to SW v R [2013] NSWCCA 103 at [62]-[63]; Steer v R (2008) 191 A Crim R 435; [2008] NSWCCA 295 at [68]-[73] per Simpson J (as her Honour then was) and [76] per McCallum J).

230. The difficulty with this submission is that the passages in the summing up to which the applicant pointed (at [516]-[517]) were expressed in general terms; namely whether the jury could treat the post offence conduct as having no explanation other than to conceal his guilt and whether the conduct could be explained other than as reflecting a sense of guilt. They were equally applicable to consideration of the case left to the jury for manslaughter as to the charge of murder.

231. At [581], her Honour was raising whether there was a reasonable possibility that the applicant did what he did out of panic and not because he knew he was responsible for what had occurred in the sense that it was his act or acts that had caused those fatal wounds. That is not limited to the charge of murder; it would encompass responsibility arising for manslaughter by excessive self-defence (which was also left to the jury).

232. The direction given by the trial judge thus covered both possible verdicts. Once the jury, as it clearly did, rejected the explanation that the stab wounds had occurred accidentally, i.e., once the jury had determined beyond reasonable doubt that the fatal stab wounds were the deliberate act of the applicant, then the question as to intention to kill or inflict grievous bodily harm must inevitably have been answered in the way the Crown contended and self-defence was negatived on the applicant’s own evidence as explained above, so a verdict of manslaughter by excessive self-defence would not have been open. In those circumstances no miscarriage can have occurred by her Honour not expressly referring to the two possible verdicts when giving the directions as to the use that might be made of the post-offence conduct of flight.

233. There is no merit to this ground of appeal. It was not the subject of complaint at the trial. Leave to rely on it should be refused.

Ground 8 – Onus

8.   The learned trial judge erred in her directions to the jury both as to the onus and standard of proof and as to factual matters.

234. Under this ground the only passage of the summing up criticised in the applicant’s submissions, as developed on the hearing of the appeal, was one sentence in [331] as follows:

Were you unable to accept the accused’s version of events as a reasonably possible version of events, you would find the first element of the offence proved in accordance with my directions.

235. The applicant’s submission with respect to this was in these terms:

This related to the prosecution proving that it was the deliberate act of the accused that caused the death of the deceased. This direction shifted the onus of proof to the Applicant and lessened the requirement that the prosecution prove the element beyond reasonable doubt.

236. The Court considers that submission unsustainable given the context of the balance of [331] of the summing up, not to mention the numerous other passages throughout the summing up and elsewhere in the course of the trial where her Honour made it abundantly clear that the burden of proof lay on the Crown throughout in relation to all elements. It is sufficient to refer to the two sentences of [331] which immediately preceded the sentence complained of (as quoted at [234] above):

In considering the accused’s evidence and what weight you give to it I remind you that the accused has no obligation to persuade you to accept his evidence as a true, or even possibly true version of events. It is the Crown’s obligation to satisfy you beyond reasonable doubt that you cannot accept his evidence as a reasonably possible version of the facts either because it is inherently unacceptable or because it is contradicted by other evidence or both, or on any basis that you consider appropriate in analysis of the evidence.

237. Numerous other points which were advanced in written submissions under ground 8 were abandoned during the hearing of the appeal. The sole remaining point, and hence ground 8 as ultimately advanced, is rejected for the reasons given above.

Ground 10 – Police officer/juror

10.   The trial miscarried by reason by reason of the failure of the trial judge to investigate the relationship of a jury member with a police officer who worked in the area where the deceased died.

238. Just prior to the Crown Prosecutor’s opening address, in the absence of the jury, the Crown Prosecutor read to the Court an email that she had received from the officer in charge of the investigation into Ms Yeo’s death (T 84.20). The Crown Prosecutor stated:

Last night about 6pm [a Detective] who works at Northern Beaches LAC, however she is at Dee Why was picking her son up from paddle board training last night at Bayview. She spoke to a male that she knows as their sons train together.

The conversation was general about the boys and training and then … then [the Detective] said why haven’t you been at training. The male answered I can’t. I’ve been picked on a jury for a murder trial for four weeks. It is in your area. It is the one at Curl Curl. I was waiting for your name to come up when they were picking the jurors but it didn’t.

There was no further conversation regarding the trial and [the officer in charge] noted that [the Detective’s] name in fact was not read out by me during the reading of witness names.

239. The trial judge observed that the email revealed that the juror had observed the admonition given to the jury panel before empanelment to listen carefully to the witnesses’ names read by the Crown Prosecutor and had not heard the Detective’s name. Her Honour considered that the email did not reveal anything “problematic” (T 85.14).

240. Counsel for the applicant expressed a “concern” that there was a juror who lived “in the area of the alleged murder and has had contact with a police officer” (T 85.19). Counsel applied to have the jury discharged (T 86.10). Counsel stated that the basis for the application was that a juror “has had a conversation with a police officer from the area where many of the officers will be called to give evidence in this case” (T 86.15). Her Honour pressed counsel on how that could give rise to a reason for discharge. Counsel then stated that the application was withdrawn (T 87.7). Her Honour stated that the jury would be reminded of their obligation not to speak “about the events of the trial” (T 87.18).

241. The written submissions in support of this ground contend that it is “a reasonable inference from the email … that there had been previous conversation between the juror and [the Detective], perhaps around the time of the death of [Ms Yeo] and that the juror believed that [the Detective] had had some involvement in the investigation of the death of the deceased”. The submissions contended that the “juror may have had information about the case, or have been told opinions about the case, which were not in evidence”. It is submitted that the trial judge erred in not taking a step that no-one at the trial urged upon her, namely, questioning the juror or the Detective who spoke to the juror “to ascertain if this was the case”.

242. Section 55D of the Jury Act 1977 (NSW) empowers a trial judge to examine a juror on oath as to whether they have seen or heard prejudicial material that was broadcast or published during the trial and been influenced by it. Section 55DA of the Jury Act empowers a trial judge to examine a juror on oath as to whether they have engaged in conduct that contravened s 68C. Section 68C prohibits a juror from making their own inquiries about the accused or any matter relevant to the trial. The possibility that a juror received information from the Detective about the trial in the circumstances now alleged did not fall within either of these provisions. Otherwise, the Jury Act does not confer any express power on a trial judge to examine a juror either on oath or otherwise concerning other matters which might warrant their mandatory or discretionary discharge as a juror under s 53A or s 53B respectively. Nevertheless, that a trial judge can at least make inquiries of an individual juror on such topics in the absence of the rest of the jury appears to have been assumed (Najibi v R [2016] VSCA 177 at [162]; BG v R (2012) 221 A Crim R 215; [2012] NSWCCA 139 at [87]). The authority to do so was not identified in those cases but it would be appear to be an incident to the powers conferred by s 53A and s 53B, although whether a trial judge can require a juror to answer questions on oath on such topics is a different matter that need not be decided.

243. In this case there was no request made of the trial judge to make any inquiry of the juror who spoke to the Detective (or any inquiry of a Detective) and no reason for her Honour to make any such inquiry. The “inference” suggested by the applicant’s written submissions to the effect that there had been other conversations between the juror and the Detective about the trial is anything but reasonable. If the juror had previously spoken to the Detective about Ms Yeo’s death then it can be expected that the juror would have sought to be excused from the jury panel. As noted by the trial judge, it is clear that the juror followed the instructions given prior to empanelment very closely. If the Detective had spoken to the juror about the circumstances of Ms Yeo’s death and if she was seeking to act with propriety then she would have made reference to that in the email sent to the informant and read out by the Crown Prosecutor. If the Detective was not seeking to act with propriety then she would not have sent the email in the first place.

244. As noted by the trial judge, the entire exchange suggests that both the juror and the Detective were acting with complete propriety. There was no reason to doubt the completeness of the account given in the email that was read to the Court (see BG at [87]). Nothing in the email warranted any basis for discharging the juror or required the trial judge to question the juror separately (or make enquiries of the Detective).

245. Again, as this ground involves a question of mixed fact and law, leave to raise it is required. As it has no substance leave is refused.

Application for leave to appeal against sentence

246. Grounds 11 to 13 all concern the sentence imposed by her Honour. Before addressing those grounds it is necessary to summarise her Honour’s sentencing judgment.

247. After describing the Crown case and the evidence supporting it, her Honour noted that, by their verdict, the jury had rejected any reasonable possibility that Ms Yeo was fatally stabbed by accident or stabbed by the applicant in the belief that it was necessary to defend himself (at [26]). Her Honour found that there was no “reasonable possibility that Ms Yeo would have invited the [applicant] into her unit after dark on 16 July 2012 [especially] in circumstances where she knew she would be alone with him and where she was fearful of him” (at [36]). Her Honour referred to the applicant’s “obsessive and vengeful behaviour” towards Ms Yeo (at [44]) and rejected his assertion that he discovered Ms Yeo’s address “somewhat serendipitously after he arrived in Sydney” by looking through the tinted windows of her car (at [50]). Her Honour was satisfied that, on the evening of 16 July 2012, the applicant went to Ms Yeo’s house twice unannounced, taking “considered and careful” steps to conceal the fact that he left his hotel (at [52]). Her Honour found that the applicant gained entry to her apartment “against her wishes” (at [53]).

246. Her Honour also accepted Ms Mulvihill’s evidence and found that the applicant took the white chain with him to her apartment “for use as a weapon” (at [56]). However, her Honour was not satisfied beyond reasonable doubt that the murder of Ms Yeo was premeditated (at [59]). Instead, her Honour concluded:

…. I am satisfied, and beyond reasonable doubt, that the offender gained entry to the unit, armed with the white chain, either with the intention of harming Ms Yeo or threatening her with it, and, in the rapidly unfolding events as Ms Yeo sought to defend herself against his attack, he took her knife and repeatedly stabbed at her and in her direction, intending to kill her. Furthermore, I am satisfied, having regard to the placement of the wounds that they were both inflicted with that intention and that the chest wound was inflicted to ensure that she would not survive the attack to identify him.

I am also satisfied that Ms Yeo sustained the secondary injuries, in particular the defensive injuries to both her hands, in the process of defending herself against the offender’s attack and that, during the course of that attack, she was screaming and calling for help while the offender was actively preventing her from accessing assistance from her neighbours, either by restraining her or otherwise preventing her from opening the door to her unit.

249. None of the above findings was the subject of complaint on appeal.

250. Her Honour concluded that the above findings warranted a conclusion that the applicant’s moral culpability for Ms Yeo’s death was “of a very high order” (at [61]). Her Honour’s assessment included a consideration of the aggravating circumstance that Ms Yeo was killed with a knife in her own home and would have experienced “extreme terror” when attacked (Crimes (Sentencing Procedure) Act1999 (NSW); “the Sentencing Act”, ss 21A(2)(c), 21A(2)(eb) and 21A(2)(g)).

251. Her Honour then made findings in respect of evidence led by the Crown in relation to the applicant’s conduct towards his former wife, Ms Carroll, after their separation and divorce in 1991, 1992 and 1993 (at [63]). Her Honour noted that this evidence was adduced by the Crown for two reasons. First, to rebut a submission made on behalf of the applicant that he was not a violent person and should be sentenced on the basis that his killing of Ms Yeo was “out of character” (at [64]). Second, to assist in making an assessment of the applicant’s prospects of rehabilitation and risk of reoffending (at [64]).

252. Her Honour summarised the evidence given on this topic by Ms Carroll, her sister, the applicant and another person (at [63]-[74]). Her Honour was satisfied beyond reasonable doubt that in 1991 the applicant presented himself at a house occupied by Ms Carroll and conducted himself in a manner that invited “sufficient fear” in Ms Carroll to cause her to leave (although her Honour was not satisfied beyond reasonable doubt that at that time the applicant was in possession of a rifle, left a bullet at the premises or that he subsequently harassed Ms Carroll by repeatedly letting the air out of the tyres of her car: at [80]).

253. Her Honour also accepted that one night in 1992, Ms Carroll arrived at her home with a male friend to find the applicant hiding under her bed (at [73]; [81]). Her Honour also accepted that the applicant had forced entry through a window and said to Ms Carroll “[w]hat are you doing here? I am going to kill you”, although her Honour was not certain whether the threats were directed to Ms Carroll or her friend (at [81]). Her Honour noted that the applicant had admitted hiding under the bed and had described his behaviour as “offensive”.

254. Her Honour was also satisfied that the applicant assaulted Ms Carroll in 1993 by approaching her in her apartment complex, grabbing her around the throat and stating “[w]e need to talk” (at [74]; [81]).

255. Her Honour noted that at the time of sentencing the applicant was 46 years of age, had no criminal record, was involved in proceedings in the Family Court with Ms Mulvihill who was his second wife, was a qualified teacher and had a good work record (at [85] to [86]). Her Honour also noted that the applicant’s sisters had testified that he was not a violent person but considered that assessment was diminished by the findings just noted. Her Honour accepted there was no evidence of the applicant being violent in the period 1993 to 2012 (at [86]).

256. Her Honour received a psychiatrist’s report concerning the applicant from Dr Furst. Based on Dr Furst’s report, her Honour noted that the applicant had been diagnosed with depression in June 2012 (at [89]). Dr Furst diagnosed the applicant as having suffered from a major depressive disorder at the time of Ms Yeo’s death that was “likely triggered by the breakdown in [the applicant’s] marriage and what he perceived as the loss of his relationship with Ms Yeo” (at [90]). Her Honour dealt with this evidence in the following manner:

[Counsel for the applicant] did not rely upon Dr Furst’s evidence to ground the submission that the offender’s depression prior to 16 July 2012, or instability in his functioning in some environments in the months preceding that date operate to reduce his moral culpability for the murder, or to reduce the need for the sentence to reflect denunciation and punishment in accordance with established sentencing principles (see Beldon v R [2012] NSWCCA 194 at [34]-[36]). Neither was it submitted that his depression impacted adversely, or at all, on his capacity to make what I am satisfied was a series of calculated decisions on 16 July 2012 (and in the days before that date) such as might diminish the need for the sentence to reflect either general or specific deterrence. I am satisfied in any event that the evidence led at trial is to the contrary. According to Mrs Mulvihill and to Darryn Cass, a friend and work colleague who was in the offender’s company for some hours on the morning of 16 July 2012, he was in good mental and physical health. In addition, there was nothing in his presentation at the Brisbane office of Sanofi Aventis prior to when he left to fly to Sydney or his presentation following his arrival in Sydney to suggest any functional instability.

257. Her Honour accepted that the applicant would have an ongoing need for medication to address his depression but expressed an “expectation” that it would be addressed by Justice Health (at [92]). Her Honour addressed part of Dr Furst’s report which attributed the applicant’s offending to his “relationship issues” in light of evidence given by the applicant on sentencing which her Honour described as involving him “deny[ing] personal responsibility for his actions and their effect on others” (at [94]). In light of the applicant’s lack of insight or acceptance of responsibility for the violence that the applicant perpetrated on Ms Yeo, her Honour did not accept that the applicant’s prospects of rehabilitation were “good”. Instead, her Honour found that “at best” they were “guarded” (at [96]). Given the length of the sentence that would be imposed, her Honour stated that no meaningful assessment of the applicant’s risk of reoffending on his release could be made. Her Honour did not consider that special circumstances had been demonstrated which warranted altering the ratio referred to in s 44 of the Sentencing Act.

258. As noted, ultimately her Honour imposed a sentence of imprisonment of 29 years with a non parole period of 22 years. The sentence commenced on 16 February 2013 to account for a period in pre-sentence custody.

259. Leave should be given to argue the sentence appeal. For the reasons that follow that appeal should be dismissed.

Ground 11 – Facilitation of the administration of justice

11. The learned trial judge erred in failing to take into account the applicant’s facilitation of the administration of justice pursuant to section 22A of the Crimes (Sentencing Procedure) Act.

260. Ground 11 contends that her Honour erred in failing to take into account the applicant’s facilitation of the administration of justice pursuant to s 22A of the Sentencing Act. Section 22A provides:

22A   Power to reduce penalties for facilitating the administration of justice

(1)   A court may impose a lesser penalty than it would otherwise impose on an offender who was tried on indictment having regard to the degree to which the administration of justice has been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise).

(2)   A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

261. The written submissions in support of this ground were brief. They referred to the fact that during the trial a significant number of admissions were made in writing by the applicant and a number of witness statements were read without the need to call their authors to give oral evidence. In a written submission lodged after the hearing of the appeal, counsel referred the Court to the discussion of s 22A in RP v R (2015) 90 NSWLR 234; [2015] NSWCCA 215 at [88] to [97].

262. The Crown’s submissions were equally succinct. They noted that no submission was made to her Honour relying on s 22A and contended that appeals to the Court are not an occasion to “rehear a plea in mitigation on different bases” when no attempt is undertaken to “explain why the approach taken by a predecessor in the court below was erroneous or misguided” (citing Abdallah v The Queen [2016] NSWCCA 34 at [133]).

263. The Crown’s contention should be accepted. The hearing on sentence was a substantial exercise which involved the adducing of additional evidence from the Crown as well from the accused, including evidence from a psychiatrist. Detailed written and oral submissions were made on behalf of the applicant and the Crown. At no time was any reliance placed on s 22A. The admissions document referred to was not insubstantial but it is not obvious that it caused any appreciable reduction in the length of the Crown case. The admissions that were made only reflected the evidence that the applicant gave on oath. Most significantly, if reliance had been placed on s 22A at first instance, her Honour would have been able to assess whether the matters to which the applicant now points truly did facilitate the administration of justice. As the trial judge, her Honour was best placed to do so. In circumstances where no submission relying on s 22A was made, no error has been established by her Honour not expressly addressing the provision. As stated by Davies J in RP at [96] (with whom Johnson J and Hamill J agreed on this point at [1] and [169] respectively):

… in the absence of any submission made to his Honour in relation to a reduction in sentence whether by dint of the application of s 22A or generally by the facilitation of justice for the way the trial was conducted, I do not consider there is any basis for holding that error has occurred on the part of the Sentencing Judge.

264. Ground 11 is rejected.

Grounds 12A and 12B – Evidence of alleged prior misconduct

12A.   The learned trial judge erred in permitting the prosecution to lead evidence of alleged misconduct by the applicant in 1991, 1992, and 1993.

12B.   The learned trial judge erred in taking into account alleged misconduct of the applicant in 1993.

265. The evidence and findings to which these grounds are directed are summarised above at [251] to [255]. The written submissions in support of this ground submitted that the findings made by her Honour in respect of this evidence were in part relied on by her Honour to conclude that the applicant’s prospects of rehabilitation were at best “guarded” and as discounting the evidence of the applicant’s good character, or at least non-violent character, that was adduced from his sisters. It is correct that her Honour relied on the findings concerning the applicant’s past behaviour as diminishing the assertion that the applicant was not violent and of good character (see [255]). It is less clear that her Honour relied on those findings in making an assessment of the applicant’s prospects of reoffending. That finding was based more on his lack of insight and acceptance concerning his conduct towards Ms Yeo. Nevertheless, for the purpose of addressing this ground, this aspect of the applicant’s submissions can be accepted.

266. The applicant’s written submissions noted that the evidence concerned allegations of criminal conduct in respect of which the “applicant has never been charged”. Again, that can be accepted. The submissions further contend that:

It was submitted that it was unfair to the applicant that he be required to defend himself against other alleged criminal conduct alleged to have occurred many years previously at the sentence hearing. It was remote and not the same as conduct arising from the facts and circumstances surrounding the offence, such as Weininger v The Queen [2003] HCA 14; 212 CLR 629.

267. In considering this approach, three matters should be noted about the approach adopted by her Honour to the evidence of the applicant’s assaults on Ms Carroll.

268. First, as noted, her Honour identified with precision the basis upon which the material was tendered by the Crown. Sections 21A(3)(f) and 21A(3)(g) of the Sentencing Act respectively provide that an offender’s good character and the unlikelihood of them reoffending are mitigating factors. The applicant was seeking to rely on those provisions and the Crown adduced evidence in response. There is no legislative provision or common law principle that restricts the Crown from relying on the criminal conduct of an offender that did not lead to a conviction when seeking to rebut reliance on those provisions. To the contrary, in Weiningerv The Queen (2003) 212 CLR 629; [2003] HCA 14 a majority of the High Court upheld a sentencing judge’s reliance on an admission by the offender that he had been involved in drug importations that he had not been charged with as undermining the contention that he was of good character (at [29] per Gleeson CJ, McHugh, Gummow and Hayne JJ).

269. Otherwise, the evidence concerning the applicant’s assaults on Ms Carroll was clearly relevant in the manner that her Honour identified. While a number of years had passed since the applicant assaulted Ms Carroll, the relevant inquiry concerned the applicant’s response to the breakup of a relationship. The breakdown of the applicant’s relationship with Ms Carroll was the last known occasion that occurred.

270. Second, her Honour determined under s 4(2) of the Evidence Act that the laws of evidence applied to a determination of the admissibility of the evidence adduced from Ms Carroll.

271. Third, her Honour was satisfied that the risk of unfairness to the accused in having to meet Ms Carroll’s evidence was countered by the need for her Honour to be “satisfied beyond reasonable doubt that the conduct relied upon by the Crown in fact occurred” (at [79]).

272. These points all illustrate the careful approach that her Honour adopted in considering the evidence of the applicant’s assaults on Ms Carroll. In neither the written or oral submissions did the applicant identify any error in the approach of her Honour beyond the generalised complaint of unfairness noted above. No error is apparent in her Honour’s approach.

273. Grounds 12A and 12B are rejected.

Ground 13 – Mental illness

13.   The learned trial judge erred in not taking into account the applicant’s diagnosed mental illness.

274. Ground 13 of the appeal contends that the trial judge erred in not taking into account the applicant’s diagnosed mental illness.

275. Again, the written submissions in support of this ground were brief. They stated that:

Clear evidence was presented at the sentence hearing (and at the trial) that the applicant was suffering from depression and had been prescribed anti-depressant medication at the time Ms Yeo was killed. In her written Defence Submissions on sentence it was submitted … that the applicant’s mental state was a significant factor to be taken into account. The judge declined to take it into account as a mitigating factor.

276. Although it is not expressly stated, it appears that this passage complains that the sentencing judge did not take into account the evidence that the applicant suffered from depression in the various ways outlined in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 at [177].

277. It is true that the written submissions on sentence that were provided to her Honour on behalf of the applicant submitted that the offender’s depression at the time of the offence should be taken into account. However, as suggested by the passage from the sentencing judgment extracted above (at [256]), that was refined in oral submissions. At the sentence hearing, counsel for the applicant disclaimed any suggestion that there was a causal connection between the applicant’s mental health and the killing of Ms Yeo. Instead, the only suggested relevance of the material was to rebut a submission of the Crown that the applicant was not manipulating Ms Mulvihill in July 2012 when he told her he was depressed, and the fact that he was depressed in July 2012 was said to tend against a finding that the killing of Ms Yeo was not premeditated. That reliance was only placed on the applicant’s depression for limited purposes at the sentencing is confirmed by the following passage from Dr Furst’s report which recorded his instructions as follows:

You [the applicant’s solicitor] indicated it is not proposed to argue Mr Mulvihill was so effected [sic] by a mental illness as to effect his capacity to understand what he was doing or reduce his moral culpability or that there is some direction causal connection between any mental instability and the offence.

278. The findings in the sentencing judgment treated the evidence of the applicant’s depression in a manner that was consistent with the stated basis on which it was adduced on behalf of the applicant. Ultimately, her Honour accepted that the applicant was suffering from depression in the period leading up to the killing. Further, her Honour was not satisfied that the killing was premeditated, although that lack of satisfaction was not based on an acceptance that he suffered from depression. No error has been demonstrated in her Honour’s approach.

279. Ground 13 is rejected.

Conclusion

280. For the reasons above, the following orders should be made:

1. Extend the time for the filing of the notice of appeal and application for leave to appeal to 22 April 2016.

2. Grant the applicant leave to appeal his conviction on grounds 1 and 2 of his notice of appeal dated 22 April 2016.

3. Refuse the applicant leave to appeal his conviction on grounds 3-8 and 10 of his notice of appeal dated 22 April 2016 (noting that ground 9 was not pressed by the applicant).

4. Dismiss the appeal against conviction.

5. Grant the applicant leave to appeal against his sentence but dismiss the appeal.

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Decision last updated: 25 November 2016