Newson v The King

[2024] NSWCCA 33

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Newson v R [2024] NSWCCA 33

Hearing dates:

7 December 2023

Date of orders:

6 March 2024

Decision date:

06 March 2024

Before:

Ward P at [1]; Wilson J at [394]; Fagan J at [405]

Decision:

1.   Leave to appeal against conviction, where necessary, and against sentence is granted.

2.   Appeals against both conviction and sentence are dismissed.

Catchwords:

CRIME – Appeals – Appeal against conviction – Where appellant was convicted of murdering his girlfriend – Where tendency evidence as to the appellant’s tendency to act aggressively when motivated by jealousy – whether probative value substantially outweighed prejudicial effect

CRIME – Appeals – Appeal against conviction – Where Crown case was wholly circumstantial – Whether dedicated inferences direction should have been given to the jury in addition to a circumstantial case direction

CRIME – Appeals – Appeal against conviction – Where defence proposed former partner of deceased as alternative theory for death of deceased – Where trial judge did not permit defence to cross examine deceased’s former partner regarding alleged dishonest conduct

CRIME – Appeals – Appeal against conviction – Where deceased’s cause of death was blunt force trauma – Whether trial judge erred in not leaving manslaughter by unlawful and dangerous act to the jury

CRIME – Appeals – Appeal against conviction – Unreasonable verdict

CRIME – Appeals – Appeal against sentence – Where Crown closing relied upon intention to cause grievous bodily harm – Whether sentencing judge erred in determining there was intention to kill

CRIME – Appeals – Appeal against sentence – Whether sentencing judge erred in assessment of objective seriousness of offending

CRIMES – Appeals – Appeal against sentence – Whether sentence manifestly excessive

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A

Criminal Appeal Act 1912 (NSW), ss 5, 5D, 6

Evidence Act 1995 (NSW), ss 55, 56, 97, 101, 101A, 102, 103

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15

Cases Cited:

AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

Beavan v The Queen (1954) 92 CLR 660; [1954] HCA 41

Blackwell v Regina [2011] NSWCCA 93

BM v R [2019] NSWCCA 223

Bugg v Day (1949) 79 CLR 442; [1949] HCA 59

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Bullard v The Queen [1957] AC 635

Camilleri v R [2023] NSWCCA 106

Carbone v R [2020] NSWCCA 318

Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162

Carney v R; Cambey v R [2011] NSWCCA 223

Cherry v R [2017] NSWCCA 150

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67

Clarke v R [2023] NSWCCA 170

Dansie v The Queen (2002) 274 CLR 651; [2022] HCA 25

DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156

Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28

Evans v R [2023] NSWCCA 11

Fisher v R [2021] NSWCCA 91

Fuller v R [2022] NSWCCA 203

Geraghty v R [2023] NSWCCA 47

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15

Greenaway v R [2021] NSWCCA 253

Guo v The Queen [2020] NSWCCA 40

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36

House v The King [1936] HCA 40

Hughes v The Queen (2017) 263 CLR 338

Imnetu v The Queen [2006] NSWCCA 203

James v The Queen(2014) 253 CLR 475

Kelley v R [2021] NSWCCA 173

King v R [2015] NSWCCA 99

Kramer v R; R v Kramer [2023] NSWCCA 152

Lane v R (2013) A Crim R 321; [2013] NSWCCA 317

LB v R [2011] NSWCCA 220

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Magro v R [2020] NSWCCA 25

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59

Mulato v R [2006] NSWCCA 282

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Nguyen v The Queen [2016] NSWCCA 5

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Paterson v R [2021] NSWCCA 273

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20

Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7

R v AA [2017] NSWCCA 84

R v AH (1997) 42 NSWLR 702

R v Aldridge (1990) 20 NSWLR 737

R v Bikic [2002] NSWCCA 227

R v Burns [2003] NSWCCA 30

R v De Beyer [2017] NSWSC 1700

R v Eaton [2023] NSWCCA 125

R v Fang (No. 4) [2017] NSWSC 323

R v Ford [2009] NSWCCA 306

R v Hachem [2023] NSWSC 535

R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111

R v Isaacs (1997) 41 NSWLR 374

R v JD [2018] NSWCCA 233

R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385

R v Latu (No 3) [2019] NSWSC 951

R v Lloyd [2022] NSWSC 906

R v Lumsden [2003] NSWCCA 83

R v MacDonell (NSWCCA, 8 December 1995, unreported)

R v Mobbs [2005] NSWCCA 371

R v Morabito (NSWCCA, 10 June 1992, unreported)

R v Newson (No 1) [2021] NSWSC 442

R v Newson (No 5) [2021] NSWSC 1661

R v Newson; R v Cunneen (No 1) [2019] NSWSC 875

R v Newson; R v Cunneen (No 2) [2020] NSWSC 463

R v Pilley (1991) 56 A Crim R 202

R v Primmer [2020] NSWCCA 50

R v PWD [2010] NSWCCA 209

R v Rae [2001] NSWCCA 545

R v SK; SK v R [2011] NSWCCA 292

R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343

R v Wood [2018] NSWSC 1855

Roos v R [2019] NSWCCA 67

Ross v The King (1922) 30 CLR 246

Rossall v R [2021] NSWCCA 200

Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

Skocic v R [2014] NSWCCA 225

Tepania v R [2018] NSWCCA 247

Thàbo Meli & Ors v R [1954] 1 All ER 373

The Queen v Baden Clay (2016) 258 CLR 308; [2016] HCA 35

The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37

TL v The Queen [2020] NSWCCA 265

Tomlinson v R [2022] NSWCCA 16

Varley v R (1976) 12 ALR 347; (1976) 51 ALJR 243

Wang v R [2021] NSWCCA 282

Waters v R [2007] NSWCCA 219

Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81

Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31

Wood v R [2019] NSWCCA 309

Xu v R [2023] NSWCCA 93

Yaman v R [2020] NSWCCA 239

Category:

Principal judgment

Parties:

Sayle Kenneth Newson (Appellant)
Rex (Respondent)

Representation:

Counsel:
W Terracini SC (Appellant)
G Wright SC and C Brain (Respondent)

Solicitors:
Ramsland Laidler Solicitors (Appellant)
Solicitor for Public Prosecution (Respondent)

File Number(s):

2017/00183274

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Date of Decision:

17 December 2021

Before:

Ierace J

File Number(s):

2017/00183274

HEADNOTE

[This headnote is not to be read as part of the judgment]

The appellant was convicted by a jury in June 2021 following a trial in the Supreme Court of New South Wales, for the offence of murder of his then girlfriend, Carly McBride (the deceased). In December 2021, the appellant was sentenced to a term of imprisonment of 27 years with a non-parole period of 19 years and 9 months.

The deceased was last seen on 30 September 2014 in Muswellbrook, New South Wales. Her skeletal remains were discovered in August 2016, in bushland outside of the town of Scone. The Crown case was that the appellant, motivated by jealousy, had murdered the deceased after she had visited her ex-partner Mr Easton that day, before driving to Owens Gap (outside Scone) with a friend, Mr Cunneen, to dispose of the body.

The appellant appealed (seeking leave to appeal where necessary) against his conviction and sentence, raising five grounds in respect of the conviction appeal, and three grounds in respect of the sentence appeal. The grounds in the conviction appeal related to: the admission of tendency evidence; the failure to give an inferences direction to the jury; the defence not being permitted to cross examine Mr Easton in relation to dishonest conduct; the trial judge’s decision not to leave manslaughter to the jury as an alternative to murder; and the unreasonableness of the verdict. The grounds in the sentence appeal related to: the determination that the appellant intended to kill the deceased; the assessment of the objective seriousness of the offence; and the sentence being manifestly excessive.

Held granting leave to appeal against conviction and sentence (Ward P, Wilson and Fagan JJ), dismissing the appeal against conviction (Ward P and Wilson J, Fagan J dissenting), and dismissing the appeal against sentence (Ward P, Wilson and Fagan JJ):

Ward P, Wilson and Fagan JJ:

1. The test for the Court of Appeal in contemplating the admissibility of tendency evidence is whether the evidence had significant probative value, though it is not necessary that there be “striking similarities, or even closely similar behaviour” (Ward P at [121], Wilson J at [394], Fagan J at [405]). The tendency evidence (which went to the appellant’s tendency to jealousy and aggression) had strong probative force in the assessment of whether the appellant had killed the deceased having become jealous and acting aggressively (and the force of that evidence was not diminished by the fact that the conduct did not involve physical violence to the person) (Ward P at [124], Wilson J at [394], Fagan J at [405]). This probative value substantially outweighed the prejudicial effect of the evidence (Ward P at [126], Wilson J at [394], Fagan J at [405]).

   Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20; Geraghty v R [2023] NSWCCA 47; R v PWD [2010] NSWCCA 209, R v SK; SK v R [2011] NSWCCA 292 applied.

2. While the trial judge omitted to give the conventional inferences direction (despite clearly intending to do so), it is clear that his Honour drew to the jury’s attention the need for care in the drawing of any inferences from the direct evidence (Ward P at [152], Wilson J at [394], Fagan J at [405]). In view of the overall directions to the jury (including a proper circumstantial case direction), the failure to give the conventional inferences direction did not constitute a miscarriage of justice (Ward P at [154], Wilson J at [394], Fagan J at [405]). While it is generally convenient to give each direction in a “dedicated” way, failure to do so will not be an error if the direction is given in terms that meet the legal requirements; here, the trial judge gave the substance of an inferences direction repeatedly and in multiple contexts (Wilson J at [395], Fagan J at [405]).

   Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36; Edwards v The Queen (2001) 273 CLR 585; [2021] HCA 28 considered.

3. The trial judge was correct to reject the suggestion that whether a key witness (proposed by the appellant as an alternate culprit for the murder) had failed to inform Centrelink of financial support from his family was relevant to the question of motive on his part to harm the deceased (Ward P at [182], Wilson J at [394], Fagan J at [405]). The line of questioning on this point could not rationally affect his credibility on the issues relevant to the trial (Ward P at [182]-[183], Wilson J at [394], Fagan J at [405]).

4. In considering an alleged unreasonable verdict, the Court must make its own independent review of the evidence and determine whether, on the whole of that evidence, it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt (Ward P at [288], Wilson J at [394], Fagan J at [405]). This requires the Court to have regard to the jury’s advantage in seeing and hearing the witnesses called at trial (Ward P at [289], Wilson J at [394], Fagan J at [405]). Having reviewed the evidence at trial, the Court was satisfied beyond reasonable doubt as to the appellant’s guilt, and further that Mr Easton was excluded as a viable alternative (Ward P at [290], [303], Wilson J at [394], Fagan J at [405]).

   M v The Queen (1994) 181 CLR 487; [1994] HCA 63; Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13; The Queen v Baden Clay (2016) 258 CLR 308; [2016] HCA 35 applied.

5. The sentencing judge’s conclusion that the appellant had an intention to kill was supported by the evidence and open to his Honour (Ward P at [340], Wilson J at [394], Fagan J at [442]-[443]). The significant force exerted against the deceased cannot sensibly be consistent with the lack of an intention to cause at least serious bodily injury.

6. The finding that the objective seriousness of the offence was in the mid-range was open to the sentencing judge, and there was no error in the approach his Honour adopted in reaching that conclusion (Ward P at [365], Wilson J at [394], Fagan J at [442]). The objective seriousness of an offence and an offender’s moral culpability are separate but related concepts; although moral culpability may be relevant in the assessment of objective seriousness, it will not necessarily be so in all cases (Ward P at [366], [369], Wilson J at [394], Fagan J at [442]). The fact of historic sexual abuse of the appellant was accepted by his Honour as reducing his moral culpability but it does not reduce the objective seriousness of the offence he committed (Ward P at [369], Wilson J at [394], Fagan J at [442]).

   DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; Paterson v R [2021] NSWCCA 273 applied; R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 considered.

7. The sentence imposed was not manifestly excessive; noting the brutality of the murder, the context of the assault (in a domestic relationship), the callousness of the disposal of the deceased’s body and the lack of remorse shown by the appellant (Ward P at [391], Wilson J at [394], Fagan J at [442]).

   Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 considered.

Ward P and Wilson J:

1. In a case of manslaughter by unlawful and dangerous act, there must have been an act contrary to criminal law which carries with it an appreciable risk of serious injury (Ward P at [209], Wilson J at [394]). In light of the medical evidence adduced at trial, manslaughter by unlawful and dangerous act was not a viable alternative verdict, as the application of such significant force on at least two separate blows is inconsistent with there being an act without the requisite intent for the charge of murder (Ward P at [211], Wilson J at [394]).

   Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31; The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37; Beaven v The Queen (1954) 92 CLR 660; [1954] HCA 41; R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385; Lane v R [2013] NSWCCA 317 applied.

Three features of the trial point strongly to the correctness of the trial judge’s decision not to leave manslaughter to the jury (Wilson J at [397]-[403]): the medical and forensic evidence adduced at trial demonstrating that following a first blow that would have incapacitated and seriously hurt the deceased, a further blow (or blows) was inflicted; the evidence establishing the applicant’s capabilities as an experienced martial arts fighter; and the stance taken by the appellant’s counsel at trial.

James v The Queen (2014) 253 CLR 475 applied.

Fagan J, dissenting:

1. Where manslaughter by unlawful and dangerous act is concerned, the evidence relied upon by the Crown to prove the accused’s acts causing death and to support the inference of the intent requisite for murder will often be coextensive with evidence that would prove an unlawful and dangerous act, should the jury find that the proof falls short of establishing the specific intent (Fagan J at [416]). If the jury did not find intent to cause death or grievous bodily harm, then the case for manslaughter by unlawful and dangerous act was there before them on the evidence; as such, the jury should have been directed on manslaughter in the alternative (Fagan J at [417]). The conclusion that the jury could not fail to be satisfied beyond reasonable doubt of the appellant’s intention to inflict at least grievous bodily harm was not within the authority of the trial judge (Fagan J at [418]).

   R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 considered.

Failure to leave manslaughter where it should have been left is an error of law; here that error of law was a serious breach of the presuppositions of the trial, and therefore gave rise to a miscarriage of justice that requires that the conviction be quashed and a retrial be ordered (Fagan J at [426]).

Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15; Ross v The King (1922) 30 CLR 246; Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, Hofer v The Queen [2021] HCA 36 applied; Lane v R [2013] NSWCCA 317, Carney v R; Cambey v R [2011] NSWCCA 223 considered.

Judgment

1. WARD P: The appellant, Sayle Kenneth Newson, was convicted on 24 June 2021, following a trial by jury before Ierace J in the Supreme Court of New South Wales, for the offence of murder of his then girlfriend, Carly McBride. The Crown case was that the appellant murdered the deceased on 30 September 2014 at Muswellbrook, New South Wales and disposed of her body on the same day in bushland off Bunnan Road at Owens Gap, about 17 kilometres from the town of Scone. The deceased went missing on 30 September 2014. Her skeletal remains were discovered in August 2016.

2. On 17 December 2021, the appellant was sentenced by the trial judge to a term of imprisonment of 27 years, to date from 19 November 2018 and expiring on 18 November 2045, with a non-parole period of 19 years and 9 months expiring on 18 August 2038. The non-parole period is 73% of the total term. (The offence of murder carries a maximum penalty of life and a standard non-parole period of 20 years imprisonment in the circumstances of this case.)

3. The appellant, by notice of appeal filed on 11 May 2023, appeals (and where necessary seeks leave to appeal) against his conviction and also seeks leave to appeal against the sentence imposed upon him.

Grounds of Appeal

4. Before summarising the Crown case, it is convenient to set out the grounds of appeal raised in the appellant’s notice of appeal.

Conviction appeal

5. The appellant raises the following five grounds of appeal against his conviction:

Ground One: The learned trial judge erred in admitting tendency evidence in the applicant’s trial.

Ground Two: The learned trial judge erred in not giving the jury a dedicated inferences direction in a purely circumstantial case in addition to a circumstantial case direction.

Ground Three: The learned trial judge erred in not permitting the defence to cross examine the witness Easton in relation to dishonest conduct.

Ground Four: The learned trial judge erred in not leaving manslaughter by unlawful and dangerous act to the jury in the alternative to murder.

Ground Five: The verdict is unreasonable or cannot be supported having regard to the evidence.

6. The appellant requires leave to appeal in relation to each of grounds 1 to 5 as none of them involves a question of law alone; each involves either questions of fact, or mixed questions of law and fact (see s 5(1)(b) Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act)).

7. The Crown relies on the proviso in s 6(1) of the Criminal Appeal Act with respect to grounds 1, 2 and 3, submitting that if (contrary to the Crown’s submissions) error is found in any of these grounds, no substantial miscarriage of justice occurred and the appeal should be dismissed.

Sentence appeal

8. The appellant raises the following proposed grounds of appeal against sentence if leave to appeal be granted:

Ground Six: The sentencing judge erred in determining the accused intended to kill the deceased in light of the Crown, in closing to the jury, relying upon an intention to cause grievous bodily harm.

Ground Seven: The sentencing judge erred in his assessment of the objective seriousness of the offence being ‘above the mid-range’.

Ground Eight: The sentence is manifestly excessive

Crown case

9. As noted above, the Crown case was that the appellant murdered the deceased on the date (30 September 2014) that the deceased went missing in Muswellbrook. The Crown case was that the appellant physically assaulted the deceased then disposed of her body in bushland at Owens Gap, near Scone, in the company of his close friend (and co-accused) James Cunneen. Muswellbrook is in the upper Hunter region, located around a 25 minute drive from Scone township. Scone was the nearest town to where the deceased’s remains were located.

9. The deceased, a 31 year old indigenous woman at the time of her death, had been in a relationship with the appellant since early August 2014, the couple having met in 2013 when they both were at a drug and alcohol rehabilitation centre (the Dooralong Transformation Centre) on the Central Coast of New South Wales (30/03/21; T 36.41-37.3). Mr Cunneen had also been admitted to the Dooralong facility.

10. The deceased was admitted to Dooralong in October 2013 (30/03/21; T 35.50-36.1). The deceased had suffered from drug addiction and personal issues (involving her hope of reuniting with her two children, one from each of two previous relationships); and had both psychological and health issues, having been diagnosed with bipolar affective disorder (21/04/21; T 282.42-43; 283.46-47). The deceased withdrew from Dooralong in November 2013 and was then again voluntarily admitted to the centre in December 2013. The deceased again withdrew from Dooralong in January 2014. The deceased was admitted as an involuntary patient at Wyong Hospital in July (30/03/21; T 36.3-16) and was discharged from Wyong Hospital on 6 August 2014 (30/03/21; T 36.15-16). The appellant told police that he commenced a relationship with the deceased around 8 August 2014 (30/03/21; T 36.50-37.3; Ex WWW, 135).

11. As at 30 September 2014, the appellant resided at Buff Point, on the Central Coast, with his mother and a friend (Rankine Williamson) and Mr Cunneen lived at a house in Ted Clay Street in Muswellbrook with his parents (the Clay Street address) (30/03/21; T 36.31-36). The deceased had been living with a school-friend (Kylie Smith) in Belmont near Newcastle after her discharge from Wyong Hospital and for several days leading up to at least 26 September 2014 (30/03/21; T 36.16-21). The deceased also spent time at her father’s house in Warners Bay and with a friend (Christian Bower) in Newcastle (30/03/21; T 36.21-22; 38.25-28).

12. As adverted to above, the deceased had two children from previous relationships: a son with a man with whom she was in a relationship between about 2006 and 2008; and a daughter, born in August 2011, with Andrew Easton (known as Drew) (30/03/21; T 57.18-24; 21/04/21; T 282.19-20), who was a significant witness at the trial (30/03/21; T 35.30-40). As at 30 September 2014, the deceased’s son lived with his paternal grandmother in Newcastle; the deceased’s daughter lived with Mr Easton at Calgaroo Avenue in Muswellbrook (the Calgaroo Avenue address) (30/03/21; T 35.34-35; T 35.45-48).

13. On 29 August 2013, Family Court consent orders were made providing for the deceased to have custody of her daughter two days per week (30/03/21; T 35.42-44). However, there had been a request made by the Department of Community Services (DOCS) in 2013 that Mr Easton care for the daughter full time; and it was not in dispute at the trial that Mr Easton remained with full time care of their daughter (with the deceased having visitation rights) (28/04/21; T 637.14-19; T 637.48-638.5). On the Crown case, Mr Easton and the deceased had a harmonious relationship and there was no conflict arising from his care of their daughter (28/04/21; T 636-638; T 650-652). The appellant, however, sought in his defence case to raise an issue as to a potential application by the deceased in relation to the deceased’s daughter (as a motive for Mr Easton to harm the deceased) (see 3/05/21; T 749.44-47, further set out below at [158]-[160]).

14. There was no dispute at the trial that on 30 September 2014 the appellant drove the deceased from the Central Coast to Muswellbrook in his white Commodore and dropped her off at the Calgaroo Avenue address (Mr Easton’s address) at about 12.30pm (30/03/21; T 44.29-32; 45.15-16). Between 9 August 2014 and the date of her disappearance, the deceased had travelled to Muswellbrook to visit her daughter at the Calgaroo Avenue address on a number of occasions (approximately six such trips), typically on Saturdays (Ex ZZZ, 135). The appellant told police that he would typically visit Mr Cunneen while the deceased visited her daughter and Mr Easton, and that he (the appellant) would return to collect her after she contacted him to pick her up.

15. On the drive to Muswellbrook on 30 September 2014, the deceased spoke to her friend Ms Smith at 11.22am and to her father, Steven McBride, at 11.28am (27/04/21; T 561.31-35; 20/05/21; 1396.43-45). The appellant used the deceased’s phone to send a message to Mr Cunneen at 11.55am (30/03/21; T 45.6-8). That message is the last outgoing communication recorded in the deceased’s phone records (30/03/21; T 45.9).

16. The deceased and the appellant made a number of stops on the drive to Muswellbrook, including at a Coles Express service station at Singleton where the appellant used the deceased’s debit card to purchase a “V” brand drink and cigarettes at 11.37am (6/05/21; T 993.29-994.2). The appellant told police that the deceased smoked ice (or methylamphetamine) about ten minutes before going into Mr Easton’s home. The appellant told a friend of the deceased’s father that the deceased used ice as well as “bupe” (or buprenorphine), which he gave her because she did not like having ice on its own (6/05/21; T 1025.15-24). There was evidence that the deceased changed her clothes, from a dress to jeans and a yellow top, before she was dropped off at the Calgaroo Avenue address (Ex ZZZ, 74).

17. The Crown case was that the appellant dropped the deceased at the Calgaroo Avenue address at around 12.30pm and that the appellant then travelled to the Clay Street address (Mr Cunneen’s house) via the McDonald’s drive-through in Muswellbrook where the appellant again used the deceased’s debit card at 12.54pm (30/03/21; T 45.15-16; T 45.34-41; 4/05/21; T 868.50-869.4). Mr Cunneen’s house was at most a five minute drive from the Muswellbrook McDonald’s (30/03/21; T 45.40-41).

18. The evidence was that the deceased’s daughter was in daycare on the day of the deceased’s visit to Mr Easton’s house (30/03/21; T 44.28-29). The Crown case was that the deceased left the Calgaroo Avenue address at around 1.45pm-2pm (30/03/21; T 45.46-47; 29/04/21; T 690.13-15). Mr Easton gave evidence that, at around that time, the deceased said words to the effect “I’m just going to…head off, go…to McDonald’s and get Sayle [the appellant] to pick me up from there” before leaving his house on foot (3/05/21; T 735.35-38). The deceased was not seen again after that time.

19. It was not disputed that the appellant was present at Mr Cunneen’s house (the Clay Street address) at 2.02pm on 30 September 2014. A short video was recorded on his mobile phone (that was later seized by police) showing the appellant inside the garage area (30/03/21; T 46.30-34). The Crown alleged that, shortly after 2.02pm, the appellant left Mr Cunneen’s house in his own car, intercepted the deceased and murdered her in Muswellbrook (30/03/21; T 46.36-39). The Crown case was that the appellant likely became aware upon intercepting the deceased that her daughter had been in daycare during the visit with Mr Easton, meaning that Mr Easton and the deceased had been alone together at Mr Easton’s house for over an hour (30/03/21; T 45.23-27). The Crown relied on evidence as to the appellant’s jealousy of the deceased, and her relationships with Mr Easton and other men (see, for example, 6/05/21; T 1009.10).

20. There was evidence that Douglas Palmer, a friend of Mr Cunneen, visited the Clay Street address shortly after, about 2.13pm on 30 September 2014 (having sent a message at approximately 2.13pm that day), staying for about ten minutes at the Clay Street address. Mr Palmer did not see the appellant or the appellant’s Commodore motor vehicle when he visited Mr Cunneen (27/04/21; T 569.24-44; T 571.11-26). Mr Palmer said, in a police statement read onto the record (in refreshing his memory), that the only person he saw was “Jimmy … there was definitely no-one else there … I don’t remember seeing any other cars there, not even Dallas [Mr Cunneen’s father]” (27/04/21; T 571.11-26). Mr Palmer said he stayed for “a short time like around 10 minutes” and that he and Mr Cunneen “stood in the garage area that was open at the top of the driveway”.

21. Therefore, the period of time when (on the Crown case) the appellant was absent from Mr Cunneen’s house was between around 2.02pm (assuming he left shortly after the video recorded on his mobile phone) or at the latest before 2.30pm (when Mr Palmer arrived) and 2.40pm (when Mr Palmer left after his short visit) – a window of opportunity of somewhere between 10 minutes and 38 minutes, coinciding with the time at which Mr Easton said the deceased had left his house to go to McDonald’s (which was around 1.45pm-2pm). There was no evidence that the deceased reached Muswellbrook McDonald’s that afternoon.

22. There was also no dispute that on the afternoon of 30 September 2014 the appellant and Mr Cunneen had travelled together from Mr Cunneen’s house (the Clay Street address) to Scone, attending the McDonald’s in Scone at approximately 4.40pm (30/03/21; T 46.24-25; 47.40-41).

23. The deceased’s skeletal remains were located by Ms Teresa Byrne, a Natural History Illustration student at the University of Newcastle on 7 August 2016 off the Bunnan Road at Owens Gap (19/04/21; T 102.5-41). The deceased’s remains were found above ground, approximately 26 metres off Bunnan Road near a clearing in a relatively confined area (19/04/21; T141.30-32). The location was one where a car was able to pull off the road coming down the hill from Merriwa and where there was visibility of some hundreds of metres (2/06/21; T 1774.48-50). The Crown case was that it was a chosen spot consistent with someone knowing the area. The Crown submitted to the jury that the location was consistent with a surreptitious and quick disposal (2/06/21; T 1774.46-48).

24. There was a later telephone intercept of the appellant in which he disclosed that he had hunted in the area in which the remains were found (Ex RRR).

25. When discovered, the remains were almost complete but with some missing bones, including (relevantly, as will be explained shortly) the hand bones. There was expert evidence from Dr McCardle that this was likely the result of scavenging by animals (19/04/21; T 165). The remains were in the same clothes the deceased had been wearing when she left Mr Easton’s house (3/06/21; T 1827.49). There were no signs of sexual assault. (There was also no sign of any attempt to bury the body.)

26. There was no dispute that the cause of the deceased’s death was blunt force trauma to the head. A post mortem examination disclosed multiple skull and facial fractures. There were fractures to the right and left side of the jaw, left side facial fracture and, at the right side at the back of the head at the base of the skull a fracture. There were three rib fractures at the back where the ribs join the spine. Both shoulder blades at the back were fractured on a plane and there were multiple spinous process fractures (20/04/21; T 198-202; T 218-220).

27. The Crown called expert evidence from a forensic anthropologist and forensic archeologist (Dr Penny McCardle) and from a forensic pathologist (Dr Leah Clifton) on the cause of death.

28. Dr McCardle had examined the deceased’s remains and identified 23 fractures to the skull and face, and 13 fractures to the body (20/04/21; T 228.49-50). Her evidence was that all of the fractures were perimortem and all were caused by blunt force trauma; and that the fractures to the skull were caused by three or more blunt force traumas to the head and face area (20/04/21; T 197.36-43; T 212-214; T 213.7-9; T 215.26-28). Dr McCardle opined that there was a point of impact around the left cheek and nose area, a further point of impact around the right side of the jaw and an impact to the parietal and occipital areas of the skull. Dr McCardle’s opinion was that the traumas to the nose and left cheek must have involved significant force because of fracturing travelling from that location to the skull (20/04/21; T 208.48-209.2).

29. In relation to the deceased’s body, there were fractures to multiple ribs, various spinal fractures and fractures to each scapula (shoulder blade) which Dr McCardle said was a difficult bone to break (20/04/21; T 219.44-220.1). Dr McCardle considered that all of these injuries could have been caused by one or more points of impact across the back (20/04/21; T 223.9-18; T 227.4-6). Dr McCardle opined that the injuries were not consistent with vehicular trauma, which would have given rise to more fractures (20/04/21; T 231.13-31; 236-239).

30. Dr Leah Clifton, a forensic pathologist, conducted the deceased’s autopsy. Dr Clifton’s opinion was that the cause of death was blunt force head injury and that impacts to the deceased’s head would have caused haemorrhaging to the brain (20/04/21; T 245.26-30; T 247.7-12). Dr Clifton opined that “high velocity” and “severe force” was required to inflict the injuries that she observed (20/04/21; T 254.33-37). Dr Clifton noted that there was significant fracturing to the base of the skull consistent with blunt force trauma. Dr Clifton said that “usually when someone has a base of skull fracture it’s the pattern of fracture that we see in … high force blunt injuries” such as motor vehicle trauma (20/04/21; T 244.7-14). Dr Clifton’s opinion was that the overall pattern of fractures was consistent with an assault; in particular, the fractures to the cheek area were “frequently seen” in someone being punched by a right-handed person and the fractures to the jaw were also “frequently seen in punch scenarios” (20/04/21; T 247.22-27).

31. Dr Clifton was “certain” that the injuries were the result of “at least two” impacts to the head (to the back right side and left side) but said that this did not necessarily equate to two punches (20/04/21; T 248.1-3). Dr Clifton’s evidence was that it was clear that there was an impact to the front left of the face and an impact to the right back of the head, as well as a base of skull fracture which may or may not have been caused by either of those impacts (20/04/21; T 248.43-48).

32. Dr Clifton’s opinion was that the injuries to the deceased’s body were separately inflicted to the injuries to the head. Dr Clifton said that the high force trauma injuries to the body could have been caused by kicking or punching but there would need to be direct trauma to the scapula on both sides for the fractures to have occurred (20/04/21; T 248.23-39). While Dr Clifton could not say whether there would have been a blow to each scapula or a single blow to the whole back area, she considered that there needed to have been significant force for the fracturing to occur (20/04/21; T 248.33-36). Dr Clifton gave evidence that in motor vehicle trauma injuries she would ordinarily expect leg and pelvic fractures, which were not present here (20/04/21; T 244.27-245.30).

33. The Crown relied on evidence that the appellant had training and experience in martial arts (Muay Thai, a form of Thai kickboxing) and could use his body as a weapon (30/03/21; T 36.24-29). In one of his police interviews, the appellant acknowledged having had a number of fights (Ex ZZZ, 14). The Crown case was that the injuries revealed during the post mortem were capable of being accounted for by physical assault involving kicking, punching and/or the use of an object or objects. The Crown submitted in closing that the assault may have involved the use of an object and/or kicks and punches, but the precise mechanism was not known (2/06/21; T 1776).

34. In relation to his movements on the afternoon of 30 September 2014, the appellant told police that he was with Mr Cunneen “the whole time” and that they took “back roads” to Scone (Ex WWW, 26, 29). The appellant admitted using the deceased’s bank card at McDonald’s in Scone at 4.40pm (Ex WWW, 27). The Crown relied on the travel to Scone as establishing the opportunity for the appellant to dispose of the deceased’s body (2/06/21; T 1768.15-19).

35. The appellant used a Samsung mobile phone on 30 September 2014. His call charge records showed no activity between 12.57pm and 6.54pm (28/05/21; T 1641.20-24). The appellant told police that he had no credit on his phone (Ex ZZZ, 86). Call charge records showed that the appellant sent messages at 6.54pm and 6.55pm (28/05/21; T 1641.38-1642.3). In 2014 there was no mobile phone reception possible in Owens Gap (6/05/21; T 990.10).

36. The deceased’s mobile phone and handbag were never recovered (28/05/21; T 1623.7-13). Telecommunications records established that the deceased’s mobile phone continued to connect to a cell tower in Muswellbrook (without any call connecting) until approximately 7.30am on 1 October 2014 (28/05/21; T 1639.5-31). The Crown relied on this as evidence that the murder took place in Muswellbrook.

37. As noted above, the last outgoing communication from the deceased’s phone was at 11.55am on 30 September 2014. After that time, the deceased did not respond to any attempts to contact her, including a message from her mother at 1.32pm that day and calls from friends and family after 6.58pm (21/04/21; T 298.11-16). There was no evidence that the deceased attempted to access any bank accounts and no viable sightings after she left the Calgaroo Avenue address (4/05/21; T 865-877; 3/06/21; T 1827.49-50). The deceased’s remains were located with the same clothes she was wearing on the day she went missing (denim jeans, a yellow top and sandals) (3/06/21; T 1827.49). The Crown case was that the evidence established beyond reasonable doubt that the deceased was murdered on 30 September 2014.

38. The Crown case was that the appellant’s motive to commit the offence was his jealousy and possessiveness towards the deceased, a state of mind that led him to act in an aggressive and controlling way (2/06/21; T 1769.25-30). The evidence relied upon by the Crown as supporting a motive of jealousy included the following.

39. First, SMS messages exchanged between the deceased and the appellant in August 2014 (recorded in Ex HHHH), including a message sent by the appellant on 30 August 2014 at 11.42pm, reading:

wat iz ur fukn go. U fukd me around, don’t FUK ME AROUND I lose my shit. I made it crystell clear to u wat I wanted to do then u go on like a f lop …… I’m sortin shut u can’t even comprehend ok!! U sit there n tell me y I’m in trouble and u have noidea bout it and yet you comment ?????? I am violent wen in this mood and u have no idea bout this part….

41. Second, evidence of tension in the relationship between the deceased and the appellant in the days leading up to her disappearance. On 26 September 2014 the deceased told her father’s neighbour, Ms Shayne Drinkwater, that she and the appellant were fighting, that she had not seen him for three days and that she did not know where he was (26/04/21; T 421.1-4). The deceased’s father also gave evidence that the deceased was continually trying to find out where the appellant was but was unable to contact him (26/04/21; T 1380.48-49).

42. Third, evidence that on the night of 26 September 2014 the deceased spent the evening at a male friend’s home (Christian Bower) (26/04/21; T 434.1-6). The appellant admitted, in an intercepted telephone conversation with Ms Smith, that he knew this and that while the deceased was with Mr Bower he had called her and “fuckin’ told Carly on the phone…” to “put it on loudspeaker” and said he was “gonna kick…his fuckin’ head in, babe” (Ex S, 9).

43. Fourth, evidence that, on the evening of 27 September 2014 the deceased had contact with another man, Troy Moffitt, and the deceased told her father that “Troy” was coming to pick her up (20/05/21; T 1389.1-14). The deceased then received contact from the appellant, who collected her from her father’s house (20/05/21; T 1389.31-33; T 1390.27-32).

44. Fifth, that on 29 September 2014 the deceased’s Facebook account was deactivated. Evidence showed that searches had been made on the appellant’s laptop at 12.11am and 12.13am about “how to delete Facebook and account” (18/05/21; T 1264.31-39). The appellant later told an acquaintance, Sandra Small, that “they shut” the deceased’s Facebook the night before she disappeared because she was receiving “messages and nude pictures and stuff like that” and it was “causing arguments between them and jealousy issues” (6/05/21; T 1009.5-19). Rankine Williamson gave evidence that the appellant had “got the shits with [the deceased]” when she would not delete her account (5/05/21; T 908.25-31).

41. In his first interview with police after the deceased’s disappearance, the appellant described being angry at the deceased (Ex WWW, 60):

…what Carly does on her phone I try and not take care because I know a lot of guys are sending her a lot of different pictures of their cocks and fucking all this shit so I try and not to get involved but I did the day before that. Um, I did get involved… all this, these guys, like I’m to the point like all her notifications will come through on her phone and you know her phone is constantly going fucking off man and sometime, like I don’t use the phone cause I don’t have any credit…I look through her phone and there’s like thirty things and they’re all from guys, you know what I mean and it’s just that, that’s in the last hour and I’m like “So who are all these guys baby?” She goes “Oh, just, you know, from here, there everywhere, like yeah, I do know them but I, yeah, I don’t really know them. I don’t go to their homes. I don’t know, yeah, I don’t know their names, ah, phone numbers and shit”. So pretty much these guys are just and every, everything is, um, oh, you want to go get something to eat. Oh, you look good. I seen you there…and it’s just like oh, fucking hell and I just said, um, “Look, I said I’m not, not jealous I don’t want to get possessive and all that shit but look either you put a stop to this right now or I’m going to put a stop to it. I’ll go through your phone and, um, go and see each, each person, each guy in there” and she cancelled her Facebook on the spot. And she said “Oh, fine, I’ll cancel my Facebook and I’ll get rid of the lot of them”. So she cancelled her Facebook on the spot and that’s…anyway we, it went on for about another ten or fifteen minutes and I, I fucking, I got real fucking angry and I, I left, I had to leave… I went for a drive for ten minutes and I just thought fuck, you know, a thirty year old girl that lives off Facebook just cancelled on the spot for me bang gone and was changing her phone number the next day which was the day she went missing. Um, I thought, fuck, that girl loves me bad, you know and I loved her too cause that’s why I was angry, you know…

46. Sixth, tendency evidence from Ms Shannon MacAlpine (the appellant’s partner at the time of his arrest) to the effect that he was jealous of her contact with other men, particularly on phones and Facebook. (The admission of this tendency evidence is the subject of Ground 1 of the conviction appeal.) Ms MacAlpine gave evidence that the appellant looked through her mobile phone to see who she was in contact with; broke approximately 30 or more phones; and smashed up her room in her house a couple of times (13/05/21; T 1100-1105). The Crown submitted that there was a striking similarity between what Ms MacAlpine said she experienced and the relationship between the appellant and the deceased (3/06/21; T 1820). The evidence was that it was while using the drug Ice that the appellant smashed Ms McAlpine’s phone (13/05/21; 1103.10-13).

47. Seventh, evidence that, despite the purpose of the deceased’s visit to the Calgaroo Avenue address being to see her daughter, the daughter was in daycare that day and not present (Ex CC). Mr Easton gave evidence that he had told the deceased the day before the visit that this would be the case (29/04/21; T 682.32-683.21). The Crown case was that the appellant noticed the daughter’s absence when dropping the deceased off (which the Crown says is consistent with statements he made to a number of people), provoking his jealousy (3/06/21; T 1803).

48. At approximately 6.30pm on 30 September 2014, the appellant attended Mr Easton’s house (ostensibly to collect the deceased) and Mr Easton informed the appellant that she was not there, and that she had left at 2pm saying she was going to McDonald’s “to ring you [i.e., the appellant]” (Ex WWW, 33) (29/04/21, T 694.29-30). In his interview with the police, the appellant at first stated that Mr Easton told him that “[s]he’s turned into the street and she’s going to Maccas to ring you” before correcting this to say that Mr Easton told him that she was going “to ring someone” (not “to ring you”). The Crown argues that the appellant was here correcting what he realised was a slip when saying Mr Easton told him that the deceased was going to ring him (the appellant).

49. At 9.26pm on 30 September 2014, the appellant reported the deceased missing at Muswellbrook Police Station (28/04/21; T 601.36-602.14), having earlier made various enquiries as to the deceased’s whereabouts (including an enquiry at the local hotel at around 5.50pm even before the appellant had gone to Mr Easton’s house purportedly to collect the deceased) (see [244] below). Further, there was evidence that the appellant had earlier that afternoon (at around 5.17pm) downloaded and cropped a photograph of the deceased that he subsequently used on missing person posts (see [260]).

50. The appellant took steps over the following days to search for the deceased including by door-knocking, organising a Facebook “missing person” page and distributing missing persons posters (4/05/21; T 829.1-9). The Crown submitted that this was a public display of concern designed to deflect suspicion from himself in circumstances where he knew that Ms McBride was deceased (3/06/21; T 1829.34-43). The Crown case was that the way the appellant presented himself publicly at the time was inconsistent with how he was behaving privately.

51. In particular, there was evidence that, in the hours and days following the deceased’s disappearance, the appellant had contacted a number of other women, as follows.

52. The appellant contacted Samantha Patterson on Facebook at 2.37am on 1 October 2014 and, at 5.37am, requested sex from her (Ex JJ). They met on 2 October 2014 and had sex (5/05/21; T 968.7-9). Ms Patterson described the appellant as not being upset and very keen to have sex with her (5/05/21; T 968.44-48). They used drugs (5/05/21; T 969.4-8). Ms Patterson said that the appellant told her the deceased was “gone” (5/05/21; T 968.23-25).

53. The appellant exchanged sexual images with Tanya Chilcott, on 1 October 2014, including while door-knocking homes in Muswellbrook (Ex OO). The appellant went to stay with Ms Chilcott from about 5 October 2014 to 15 October 2014 (6/05/21; T 1030.35-37).

54. On 3 October 2014, the appellant sent a message on Facebook to Latoya Kelly saying “Latoya we have never met but I think we no some of the same peps and yea…well I think your hot and if your single you should let me take you out” [rendered as in original] (Ex JJJJ, 3).

55. On 6 October 2014, the appellant sent a message on Facebook to Isabelle Greer saying “hi iz ….. you should let your sister know im single again” (Ex JJJJ, 3).

56. Meanwhile, on 1 October 2014, the appellant visited the police station and spoke to Senior Constable Tegan Denniss (MFI 32). The appellant told the officer they were looking for a dead body (4/05/21; T 819.30-33). On the same day, according to Mr Easton, the appellant told him that the deceased was “probably dead in a ditch somewhere” (29/04/21; T 701.40).

57. The appellant was first interviewed by police on 3 October 2014 (Ex WWW). (A second interview, in which the appellant again participated voluntarily, was conducted on 31 October 2014 (Ex WWW, 25-29).)

58. At the time of the deceased’s disappearance the appellant was a user of the drug methylamphetamine (Ice). In his electronically recorded interview dated 31 October 2014 the appellant acknowledged he had been up for a couple of days before the deceased’s disappearance because he was high on ice (Ex ZZZ, 2-3).

59. The mobile telephone the appellant was using at the time of the deceased’s disappearance was located by police and subject to a Cellebrite download, which was completed on 29 October 2015 (20/05/21; 1346.17-26). The download revealed that there were location history entries for before 18 September 2014 and after 2 October 2014, but nothing in between (20/05/21; T 1361.16-41). The Crown relied upon the removal of the data as a deliberate act evidencing consciousness of guilt. There was a telephone intercept from 30 November 2014 (some eight weeks after the deceased’s disappearance) where the appellant spoke to a person known to him about trying to hide his internet history from police (Ex VVV). This evidence was relied upon by the Crown for consciousness of guilt reasoning.

60. Detectives were involved in the investigation from at least 2 October 2014. The Crown notes that forensic investigations did not focus solely on the appellant. Mr Easton’s residential address (the Calgaroo Avenue address) was the subject of forensic examination and his vehicle was also subjected to a forensic examination (3/05/21; T 802.16-20; 13/05/21; T 1138.43-1141.32). No inculpatory material was found. (The appellant emphasises that there was no forensic link to anybody disclosed in the Crown case (see at [29] of his written submissions dated 30 May 2023).) The police task force also worked through potential suspects including a number of named individuals before excluding them. Investigations also dealt with a number of “false” sightings of the deceased after 30 September 2014 (5/05/21; T 949-960).

61. On 20 November 2014, there was a telephone intercept of a conversation between the appellant and the deceased’s father, Steven McBride, in which conversation they discussed the police investigation and the appellant said that the last three people to see the deceased were himself, Mr Easton and Mr Cunneen (Ex RRR). The appellant said “There’s the last…reality is there’s the last three people who seen her: that’s me…Drew, and fuckin’ (pause) – well me and Drew, yeah? Me, Drew…and Jimmy okay? … Now I’m pretty sure they’ve cancelled me and Jimmy out” (Ex RRR). The Crown’s submission was that, when the appellant told Mr McBride the last three people who saw the deceased alive, the appellant made a slip because that is what had happened; whereas in his interview the appellant said that, after dropping the deceased off at Mr Easton’s house to visit her daughter, he went to Mr Cunneen’s place and stayed there (2/06/21; T 1801.10-25) (i.e., on the appellant’s account to police, Mr Cunneen did not see the deceased that day).

62. As noted, on 7 August 2016, the deceased’s skeletal remains were discovered. The police investigation used a strategy of a public appeal for information whereby a “fake” crime scene was filmed following the remains of the deceased being located (20/04/21; T 262.48-49). Before the public appeal, a telephone intercept warrant was obtained for the appellant’s mobile phone.

63. On 11 August 2016, the appellant had a conversation with a female acquaintance regarding the “fake” crime scene film and the police receiving a tip off. In that conversation, the appellant made reference to Mr Cunneen (Ex VVV), in connection with the tip off (i.e., suggesting some knowledge on the part of Mr Cunneen about the relevant events). The Crown linked this call back to the earlier telephone intercept in which the appellant referred to the last three people to see the deceased alive.

64. During a telephone call by the appellant to Mr McBride on 26 August 2016, after the discovery of the deceased’s remains, the appellant told Mr McBride that he had heard someone had the deceased’s hand and asked Mr McBride whether that meant anything to him (25/05/21; T 1488.9-25). As noted above, when the deceased was located some extremities bones were missing (attributed by the expert evidence to animal interference). However, there had been no public acknowledgment by investigators that any bones were missing (21/04/21; T 272.28-30). The Crown submitted that the appellant must have returned to the scene where he had deposited the deceased body and seen the missing hand/bones (7/06/21; T 73).

65. There was also evidence obtained through a listening device worn by Mr McBride when speaking to the appellant on 8 June 2017. During the recorded conversation, the appellant told Mr McBride that he knew the area where the deceased was found “like the back of his hand” and he did not like to say it because “it sounds incriminating” (Ex RRR).

66. The Crown did not suggest that Mr Cunneen was present at the time of the murder (Crown Written Submissions on Conviction Appeal filed 30 November 2023, p 12). Rather, the Crown case was that the appellant, having killed the deceased, turned to Mr Cunneen (his close friend and the only person he knew in Muswellbrook) for assistance; and that they then together disposed of the body that afternoon.

67. Pausing here, there was an aborted first trial in which the appellant and Mr Cunneen were co-accused (the appellant charged with murder and Mr Cunneen as accessory after the fact). Ierace J was the trial judge at that trial, which commenced before a jury in Newcastle on 23 May 2019. His Honour, on the thirty-first day of that joint trial, acceded to applications by both accused to discharge the jury R v Newson; R v Cunneen (No 1) [2019] NSWSC 875, following an incident in which inadmissible evidence said to be highly prejudicial and irrelevant was given in cross-examination of a second tendency witness (one who did not give evidence in the second trial involving the appellant). The jury was discharged on 12 July 2019.

68. Prior to that first trial being commenced, his Honour had dismissed an application on behalf of Mr Cunneen for a separate trial. After the aborted first trial, a new trial date of 4 May 2020 was set for the fresh trial. On 25 October 2019, counsel for Mr Cunneen indicated that he wished to bring a fresh application for a separate trial based on material additional to that which was relied on for the first application. That application was heard by Ierace J on 8 April 2020. His Honour acceded to the application that there be separate trials (see R v Newson; R v Cunneen (No 2) [2020] NSWSC 463).

69. Accordingly, Mr Cunneen was ultimately tried separately in the District Court for the offence of accessory after the fact to murder. Mr Cunneen was convicted of that offence. His conviction appeal was heard in October 2023.

Defence case

70. Returning then to the trial leading to the conviction the subject of the present appeal, at the second trial the appellant (again) pleaded not guilty to the sole count of murder and, as was his right, did not give evidence at the trial. As noted above, the appellant had given two voluntary interviews to police, the first on 3 October 2014 and the second on 31 October 2014, which were tendered in evidence in the Crown case. The appellant in those interviews denied any involvement in the deceased’s disappearance. The appellant said that he had been with Mr Cunneen all afternoon (on 30 September 2014 and had not left his company; and that they travelled together to Scone via backroads, where they went to “the farm” and a McDonald’s restaurant (Ex WWW, 25-29)).

71. The appellant served an alibi notice prior to the trial in which he said he attended Mr Easton’s address, then McDonald’s at Muswellbrook, Mr Cunneen’s address, Mr Cunneen’s father’s farm at Gundy Road, some storage sheds at Hayes Street in Scone, and McDonald’s in Scone (all in the company of Mr Cunneen) before returning to Mr Cunneen’s address (and eventually returning to Mr Easton’s address to look for the deceased) (28/05/21; T 1614.22-32). The Crown was permitted to adduce evidence that the appellant had given that version via his solicitors (without referring to it as an “alibi”).

72. Professor Duflou, forensic pathologist, gave evidence in the defence case relating to the deceased’s injuries, including that they would possibly have involved significant blood at the scene (31/05/21; T 1755.25-1756.9). The appellant relied on the lack of any forensic evidence implicating him despite an extensive examination of his vehicle, and the absence of any witnesses to what must have been a serious attack in daylight in the middle of the town (3/06/21; T 1837.24-40; T 1839.13-48).

73. The appellant’s counsel cross-examined Dr McCardle and Dr Clifton on the possibility that the deceased had been hit by a motor vehicle (though that theory was not pursued in closing submissions). In closing, the appellant’s counsel referred, among other things, to the following matters: the evidence of Mr Bower that the deceased had been worried about travelling to Muswellbrook the day before her disappearance but had said “don’t worry, I’ll be with Sayle”, implying she felt safe with him and that there may have been something else connected with Muswellbrook that was of concern to her (3/06/21; T 1835.25-41); the evidence that the deceased appeared happy in photographs taken during her car trip with the appellant to Muswellbrook on 30 September 2014, and evidence from Ms Smith that she sounded happy during their phone call around that time (3/06/21; T 1835.44-1836.5); the narrow window of opportunity for the murder to have occurred and the lack of witnesses to what must have been a serious attack in Muswellbrook (3/06/21; T 1837.24-1838.22; T 1840.15-1841.1); and the absence of evidence (apart from that of Mr Easton) that the deceased had left Mr Easton’s address (3/06/21; T 1840.44-45; T 1853.16-17).

74. The appellant’s counsel suggested that the deceased may have been robbed in the course of a drug deal (3/06/21; T 1849.26-27); or that Mr Easton was involved, pointing to the evidence that the deceased was attempting to regain custody of their daughter, evidence from one of Mr Easton’s neighbours (Ms Gardner) that she had witnessed a man arguing with a woman at some point before 30 September 2014, alleged inadequacies in the forensic testing of Mr Easton’s vehicle, and evidence that Mr Easton had travelled to Scone early on the morning of 1 October 2014 after dropping his daughter to daycare unusually early in the morning (3/06/21; T 1849.50-1853.17).

Pre-trial ruling on tendency evidence

75. The Crown issued a tendency notice on 6 March 2020, seeking to prove that the appellant had a tendency to have a particular state of mind and a tendency to act in a particular manner. The tendency was identified as:

The tendency sought to be proved is to have a particular state of mind, namely jealousy and possessiveness toward significant intimate female partners and to act in a particular manner, namely to be aggressive and controlling towards such partners when motivated by jealousy or possessiveness.

76. The Crown contended that the accused had demonstrated a tendency in his intimate relationships, both before and after his relationship with the deceased, to be overwhelmed by jealousy and possessiveness to the point of acting violently, although not inflicting actual physical violence on the partner’s body. The qualification embedded in the last phrase of that submission is not reflected in the tendency notice itself (as extracted above).

77. Tendency was the subject of pre-trial argument on 8 April 2020. The defence position in oral submissions, supported by earlier written submissions, was that the proposed evidence did not pass the test of s 97(1)(b), or (2)(b) of the Evidence Act 1995 (NSW) (Evidence Act) and, if that submission was wrong, that the evidence, taken as a whole, did not meet the test in s 101 of the Evidence Act, being that the probative value of the evidence substantially outweighed the prejudicial effect (8/04/20; T 9, 19).

78. In a pre-trial ruling, the trial judge ruled that Ms MacAlpine’s evidence (referred to as “Witness A” in the judgment) was admissible as tendency evidence and that evidence of an answer given by the appellant in the second police interview on 31 October 2014 (in which he admitted jealousy in a past relationship) was not (R v Newson (No 1) [2021] NSWSC 442) (the tendency judgment).

79. His Honour summarised the effect of Ms MacAlpine’s evidence at [23]-[24] of the tendency judgment as follows:

23.    The relationship appears to have started shortly after Valentine’s Day 2017, and continued until the date of the accused’s arrest, four months later. Witness A stated that when they became “a serious couple”, the accused became jealous of the “male associates” in her life. He did not like her talking to men, to a point that she offered him access to her Facebook Messenger and texts in order to satisfy him that she wasn’t “up to anything behind his back”, and later offering to delete her Facebook account and Facebook Messenger “for him”. If she received a text message, he would pick up the phone and read the message. If it was from a male, he would question her about him, sometimes leading to an argument. If he could not find anything on the phone to “back up how he was feeling”, he would smash the phone or throw it out of a window, causing her to go through “at least 30 mobile phones” in the time she was in a relationship with him and to only buy cheap replacement phones. She recalled that he smashed one of her phones on his forehead. She noted that “the more he used the drug Ice, the more paranoid he became and the more he would break my phones.”

24.    The witness stated that the accused never directed any violence towards her or stood over her to intimidate her, and that “the only time I started to get scared was after he smashed my room up twice”. She said, “it was like he was fucking pissed with himself because he knew deep down it was all in his fucking head”.

The trial

80. The trial commenced on 29 March 2021 in the Supreme Court at Newcastle. The trial transcript extended to in excess of 1600 pages. The Crown, in his short opening to the jury panel on 29 March 2021 stated that the deceased was murdered about 2pm on 30 September 2014 in the Muswellbrook area and her body dumped the same afternoon at a location known as Owens Gap, which is about 17 kilometres outside the township of Scone (29/03/21; T 7-8). The Crown case was that the appellant was the person who inflicted the significant blunt force trauma to the facial region and to the back of the deceased’s head causing her death. The jury was advised that the Crown case was circumstantial and there was no “smoking gun” (29/03/21; T 34.15-41).

81. On 6 April 2021 (day 5 of the trial) the trial judge placed on the record that on 5 April 2021 the Court was advised that defence counsel had suffered a heart attack, requiring multiple bypass surgery thus ending his involvement in the matter. The appellant’s solicitor advised the Court he had been able “provisionally” to secure new counsel (that the new counsel would accept the new brief but he had some other commitments) (6/04/21; T 81.19-47). By that stage of the trial there had been a view of where the deceased had been located and some evidence had been adduced.

82. The appellant’s instructing solicitor advised the trial judge that alternative counsel was in the process of being briefed with the 27,000 pages containing the brief of evidence and the previous trial transcript (i.e., of the aborted first trial), which extended to 1,597 pages (see 28/04/21; T 598.30-37). There was no application to discharge the jury by the appellant’s representatives. The Crown closing submissions to the jury referred to some 36,000 odd pages of brief.

83. On 9 April 2021, the Court was updated as to defence counsel, with the trial being adjourned to 19 April 2021 for the trial to continue (9/04/21; T 89.25-40). On Monday 19 April 2021, the trial of the appellant continued with alternative counsel (19/04/21; T 94).

84. Ms MacAlpine gave evidence in the trial (commencing at T 1098) consistent with the summary given in the tendency judgment of the evidence it was then expected that she would give. Ms MacAlpine said that there were instances of jealousy “once a week maybe … [or] less”, that there were two occasions when the appellant smashed up her room, on one occasion smashing her laptop and tearing photos off the walls (13/05/21; T 1100.49; T 1103.28-37). Ms MacAlpine confirmed in her evidence that the appellant had never touched (not “laid one hand on”) her, notwithstanding that she had “pushed him…gotten up in his face…head-butted him” and antagonised him (13/05/21; T 1110.24-35).

85. In directing the jury at the end of the trial, the trial judge said that the Crown alleged that the conduct revealed that the accused had a tendency to be jealous and possessive of intimate partners “to a point of acting violently towards inanimate objects”, which [the Crown alleged] makes it more likely that he committed the offence charged in the indictment” (7/06/21; SU 49). His Honour said:

Part of the evidence relied upon by the Crown to establish motive of jealousy and possessiveness was the evidence of Shannon MacAlpine. The Crown submitted that her evidence demonstrated a tendency on the part of the accused to become jealous and possessive of a person with whom he is in a close relationship. The Crown contends that the accused had demonstrated a tendency in his intimate relationship with Ms MacAlpine to be overwhelmed by jealousy and possessiveness to the point of acting violently, although not inflicting actual physical violence on her body.

The Crown says you would be satisfied that the accused had this tendency because of his conduct in questioning her when messages were received by her from male friends and acquaintances to a point that he would search her phones and violently destroy her phones.

The Crown says this conduct reveals the accused had a tendency to be jealous and possessive of intimate partners to a point of active violence towards inanimate objects, which makes it more likely he committed the offence charged in the indictment.

You will need to consider the evidence relating to this alleged conduct of the accused and decide whether he did in fact conduct himself in the way the Crown alleges. In doing so, you do not consider each of the acts in isolation. You should consider all the evidence and decide what conduct you are satisfied occurred.

If you decide that all, or at least some, of the conduct occurred, you then need to consider whether it enables the inference to be drawn that the accused had the tendency to be jealous and possessive of intimate partners to a point of acting violently towards inanimate objects.

You will recall the direction I gave you about the care that needs to be applied to the drawing of inferences. I directed you to consider whether there might be alternative explanations for the evidence. I directed you that you should not draw an inference from the direct evidence unless it is a rational inference in the circumstances. You should bear in mind those directions when you are considering this part of the evidence.

If you are not satisfied that any of the conduct the Crown relies upon occurred, then there is no basis upon which the tendency could be inferred from that evidence or at all. In these circumstances, you must put the whole issue of tendency to one side and confine your consideration to the other parts of the Crown case.

If you find the accused did act with jealousy and possessiveness towards Ms MacAlpine then you can use that in considering whether it is more likely that he committed the specific offence with which he is charged. However, it is essential that you consider in relation to the charge whether the accused had that particular state of mind on that specific occasion.

Finding the accused did have the tendency the Crown alleges is not enough to prove guilt. It may assist the Crown to prove the accused committed the offence, but is not enough by itself. The question is whether it makes it more likely the accused conducted himself in the way the Crown alleges on the occasion that is the subject of the charqe. That is the only way the accused’s tendency to be jealous and possessive may be used. (7/06/21; SU 49-51)

86. The circumstantial case direction included (relevant, in particular, to Ground 2) a direction that:

Drawing a conclusion from one set of established facts to find that another fact is proved involves a logical and rational process of reasoning. You must not base your conclusion upon mere speculation, conjecture or supposition. In order to satisfy you beyond reasonable doubt of the accused’s guilt of the offence, the Crown must first persuade you that the inference or conclusion it relies upon is a reasonable one to draw from the facts that you find established by the evidence. It then must prove to you that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is that the accused is guilty of the offence. If there is any other reasonable conclusion open on those facts that is inconsistent with the conclusion the Crown asks you to find, then the Crown’s circumstantial case has failed. (7/06/21; SU 26)

87. Relevant to ground 4 is the following course of events.

88. His Honour placed on the record (in the absence of the jury) the contents of an email sent to his chambers by defence counsel in which defence counsel sought a direction for an alternative verdict of manslaughter (27/05/21; T 1592.14-15). His Honour said:

I’m interested to know what the alternative verdict — what the basis is for an alternative verdict of manslaughter in your view. Can l just make this observation. I’ve given some thought to unlawful and dangerous. The problem with that is that the prosecution case is that the accused applied blunt force trauma to the decease and, having regard to the fractures to the skeletal remains and the evidence that they occurred around the time of death, a number prior to death, it seems to me there’s no reasonable basis for the jury to conclude that, assuming they get to a point that they decide that the accused has occasioned the blunt force that caused the injuries, that they were not done without an intention to at least cause really serious bodily harm. So that’s the concern I have about whether there’s a sufficient evidentiary basis for manslaughter on the basis of unlawful and dangerous act. (27/05/21; T 1592.22-34)

89. Defence counsel was invited to consider the issue and said:

Just briefly regarding the alternate verdict of manslaughter, and I haven’t conducted any great analysis about that, but I understand that the Crown case was that there was a spontaneous loss of control by the [appellant]. (27/05/21; T 1593.31-33)

90. The Crown Prosecutor made no submission.

91. Later the trial judge returned to the issue of the potential alternative verdict of manslaughter; and defence counsel, in response to a question by the trial judge as to how manslaughter arose, said:

… the issue is probably that there’s the forensic details of the injuries that are suffered by the deceased, then there’s the Crown case that says it was a spontaneous act of the [appellant]. The evidence is silent on the possibility or anything about intervening acts. So that raises the spectre of whether manslaughter is available to the [appellant] and primarily because of the nature of what the Crown says its case against the [appellant] is, is that we say the alternative verdict of manslaughter should be available and given to the jury in that regard. (27/05/21; T 1601.8-15)

92. When asked on what basis manslaughter would be available, defence counsel submitted:

Because there’s no clear evidence at all about when the deceased died or where or even how, apart from a general classification of blunt force trauma. So there’s a range of aspects that if, for example, certainly if you assume that the injuries that are recorded again by the forensic pathologist as to cause of death occurring at the one time, then certainly you might think that an alternative verdict of manslaughter isn’t available. But because the evidence is silent on that process, for abundant caution it should be available to the jury because it’s a matter for the jury to determine....[f]or example, the deceased may well have been —for example, the jury might think, putting aside the [appellant’s] case of course that he didn’t do it, but the jury might well think that it’s something that’s happened inadvertently by loss of temper, for example, and that the deceased was taken out into the bush and she was dumped there but not — and still alive. That’s one scenario, for example. There’s a myriad of possibilities that can fit into a scenario where the deceased is not dead when the accused leaves her. (27/05/21; T 1601.20-38)

93. Defence counsel also referred to a lack of intent during the dialogue with the trial judge (27/05/21; T 1601.42-43). His Honour stated that “the nature of the injuries bespeaks an intent. But I’m happy to hear what you have to say about that” (27/05/21; T 1602.50-1603.1). The appellant says that there can be significant injuries inflicted without the requisite intent to inflict serious bodily injury.

94. The Crown Prosecutor suggested to his Honour a direction on “voluntary intoxication” because that may have some relevance to an intent to murder, from which his Honour did not derogate and an intoxication direction was given in the summing up (27/05/21; T 1606.25-28; 7/06/21; SU 27).

95. Some days later, the issue of manslaughter again arose where defence counsel returned to his earlier list of proposed directions to the jury. Defence counsel articulated that there was no ground to seek an alternate for manslaughter so he abandoned his application. His Honour responded:

It’s something I’ve got to consider independently of counsel anyway and I think I indicated the difficulty I was having in that respect... the difficulty I have a manslaughter direction, it’s dependent on a particular scenario and the nature of the fractures to the skeletal structure seem to bespeak a particular intention that goes beyond unlawful and dangerous. (31/05/21; T 1757.14-34)

CONVICTION APPEAL

Ground 1: The trial judge erred in admitting tendency evidence in the appellant’s trial

96. The appellant, by Ground 1, contends that the trial judge erred in admitting tendency evidence (namely, the evidence of Ms MacAlpine) on the basis that it either did not have significant probative value so as to meet the test in s 97 of the Evidence Act or its probative value did not substantially outweigh any prejudicial effect it may have to the appellant, such that her evidence ought to have been excluded under s 101 of the Evidence Act.

97. As s 101 of the Evidence Act was framed at the time of the trial (as opposed to the position at the time of the appeal), the relevant test is whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused (tendency judgment at [19]). The Crown correctly accepts that the test for admissibility applicable at the time of trial here applies (Crown written submissions dated 30 November 2023 at [53]).

Appellant’s submissions

98. The appellant refers to the relevant legal principles in relation to the admission of tendency evidence as set out in Greenaway v R [2021] NSWCCA 253 at [26]-[32] (Macfarlan JA, Wilson J agreeing at [135]) and Geraghty v R [2023] NSWCCA 47 (Geraghty v R) at [23]-[29] (Basten AJA, Button and Chen JJ). In the circumstances of this case, the appellant says that the course of the trial did not evolve in any material way such that this Court is in a manifestly different position to the trial judge.

99. The appellant submits in essence that evidence establishing that he was overwhelmed by jealousy and possessiveness to the point of acting violently to inanimate objects, although not inflicting actual physical violence on the partner’s body, does not rationally assist in a significant way to establish that he engaged in a violent physical assault causing blunt force trauma injuries with the specific intent to cause serious injury or death. The appellant argues that establishing a tendency to smash phones does not make it more likely that he committed murder (which he submits is the force of the direction surrounding tendency evidence given to the jury).

100. The appellant submits that the prejudice of the purported tendency evidence is clear, namely that it portrays him as “a repeat domestic violence offender who perceives he has some proprietary rights over his domestic partners and engaged in, at least, intimidatory behaviour to control them repeatedly”. It is noted that the trial judge, in formulating the direction about tendency with counsel, referred to the danger that the jury might misuse that evidence (27/05/21; T 1605.19-20).

101. The appellant submits that the evidence tendered for a tendency purpose was erroneously admitted, leading to a miscarriage of justice.

Crown submissions

102. The Crown submits that the tendency evidence (consisting of the testimony of Ms MacAlpine concerning the appellant’s conduct towards her when they were partners) met the test for admissibility in ss 97 and 101 of the Evidence Act and was properly admitted to establish a tendency of the appellant to have a particular state of mind, namely jealousy and possessiveness toward significant intimate female partners, and to act in an aggressive and controlling manner when motivated by jealousy or possessiveness.

103. The Crown notes that the appellant does not here contend that his Honour acted on any incorrect principle in admitting the tendency evidence but that the appellant argues that the evidence did not have significant probative value and/or that its probative value did not outweigh the prejudicial effect of the evidence (referring to the appellant’s written submissions dated 11 May 2023 at [40]-[42]).

104. The Crown argues that, contrary to what may be suggested in the appellant’s submissions at [40] (summarised above at [99]), it is not necessary that the tendency evidence make all elements of the offence more likely, referring to TL v The Queen [2020] NSWCCA 265 where Hoeben CJ at CL (Bellew J agreeing at [319]) said, at [223], that the reference in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [40]-[41] (Kiefel CJ, Bell, Keane and Edelman JJ) to the need for tendency evidence to “make more likely to a significant extent the facts that make up the elements of the offence charged” (quoting from R v Ford [2009] NSWCCA 306 at [125]) did not mean that “the tendency evidence should go to prove all the elements of an offence only that the assessment of its significant probative value is measured against what needs to be proved which, in a criminal trial, are the elements of the offence”.

105. The Crown submits that there was no error in the present case. The Crown says that the trial judge in the tendency judgment, correctly identified (at [19]) the tests posed by ss 97 and 101 of the Evidence Act; and correctly identified (at [32]) the facts in issue to which that Ms MacAlpine’s evidence was relevant, namely “whether the accused, motivated by jealousy and possessiveness, was aggressive and controlling towards the deceased as his intimate female partner,” which could (in turn), by tending to establish motive, rationally affect the assessment of the probability of the existence of the fact in issue, being whether he inflicted bodily harm upon the deceased with the intention of at least causing her grievous bodily harm.

106. The Crown notes that, in concluding that Ms MacAlpine’s evidence had significant probative value, his Honour said that it did so including because of “similarities between [her] description of the accused’s behaviour towards her and in her presence, motivated by his jealousy and possessiveness and in the alleged nature of the accused’s jealous and controlling behaviour towards the deceased” (at [34]). The trial judge referred to the evidence that the appellant pressured the deceased to cancel her Facebook account the day before her disappearance, and his admissions that he had threatened to “go through [the deceased’s] phone and…go and see each person, each guy in there”, following which he cancelled her Facebook “on the spot” and “got real fucking angry” (at [25]-[26]).

107. The trial judge also noted that the Crown alleged that the appellant had taken methylamphetamine (ice) on the day of the deceased’s disappearance and the correlation with Ms MacAlpine’s evidence that his behaviour worsened when under the influence of methylamphetamine (at [34]). The Crown notes that in the appellant’s second police interview he said he had been smoking ice from “two or three days beforehand…all the way until I left town five days after Carly disappeared” (Ex ZZZ, 70); and that on the day of her disappearance he had “a quick couple of puffs on the pipe” on the drive to Muswellbrook near Wyee, and another “puff on the pipe” in Singleton (Ex ZZZ, 73, 76).

108. The Crown submits that the trial judge’s conclusion that the evidence had significant probative value was plainly correct. The Crown says that Ms MacAlpine’s evidence supported proof of the tendency alleged by the Crown, which was a specific tendency to display jealousy and possessiveness towards intimate partners and to act in an “aggressive and controlling” way towards them when motivated by that state of mind. It is noted that in Ms MacAlpine’s case the “aggression” and “control” took the form of acts of violence towards her phones and other property, as well as in reading her messages and asking her about men with whom she communicated.

413. The above evidence was relied upon by the Crown to support an inference that death was caused by deliberate infliction of severe blows, whether by punches, kicks, stomps or by wielding an object. A separate large body of circumstantial evidence, including evidence of movements, opportunity, motive, admissions and conduct after the apparent disappearance of Ms McBride, was relied upon to prove that the perpetrator of the blows was the appellant. That evidence has been summarised by Ward P. Importantly for the determination of ground 4, the physical and expert evidence concerning the deceased’s skeletal injuries was relied upon by the Crown as the basis for inferring that, when inflicting blows that caused the deceased’s death, the appellant intended to cause at least grievous bodily harm. The Crown’s address included the following:

T 1767-1768:

But the potential number of inflictions of force and the result of those inflictions of force, speak the Crown says towards the intention of the person inflicting that blunt force trauma. The Crown says when you look at the injuries and when we have access the expert evidence and the number of blows in those expert opinions as to the amount of force required you would be able and easily be able to infer that the person striking the deceased with whatever, fists, hand, knee, elbow, headbutt or object, intended at least to inflect really serious bodily harm.

T 1830:

Murder to be established must accompany or be accompanied by a particular state of mind, those acts need to be accompanied by a state of mind. There are a number of states of mind that can attract the offence of murder. Obviously, an intention to kill. Murder can be established if you’re satisfied there was an intention and the old language is to inflict grievous bodily harm, it simply means really serious bodily harm.

What the Crown says is this, that when you analyse the injuries, my memory is telling me it was 23 fractures to the head and 13 somewhere else […] the head fractures, the number of blows, minimum two, another blow to the back, the force that is required. When you consider that evidence, the Crown says that’s another one of those inferences that you can draw.

If you’re using that kind of force over a number of occasions, you intend to cause serious bodily harm. You’re hitting somebody in the head, you’re not kicking them in the shins and that’s just another one of those drawing inferences from the evidence.

415. The learned trial judge directed the jury with respect to inferring intent from such acts as they might find the appellant to have committed, in a passage that has been quoted in the judgment of Ward P at [329] but which is repeated here for ease of reference:

A person’s intention may be inferred or concluded from the circumstances in which the death occurred and from the conduct of the accused person before, at the time of, or after he or she did the specific act or acts which caused the death of the deceased. In some cases, a person’s acts may provide the most convincing evidence of his or her intention at that time.

Where a specific result is the obvious and inevitable consequence of a person’s act, and where the person deliberately does that act, you may readily conclude that he or she did that act with the intention of achieving that particular result.

In this case the Crown points to the nature of the injuries to Ms McBride’s skull, jaw, vertebrae, scapulae, that is shoulder blades, and some of her ribs. The Crown submits that if you are satisfied beyond reasonable doubt that it was the accused who inflicted those injuries on Ms McBride by the deliberate application of blunt force, the nature of those injuries is evidence of his intention.

The Crown says that you could be satisfied beyond reasonable doubt of his intention on that basis, namely, to at least cause her really serious bodily injury, if not actually kill her, by the degree of force that was necessary to cause those multiple fractures to different parts of Ms McBride’s body, in particular, her head.

Manslaughter by unlawful and dangerous act was open

416. The authorities recognise that the alternative of manslaughter need not be left if there is no evidence upon which it could arise. That does not mean that in every case where murder is charged, manslaughter can only be a viable alternative if there is specific additional evidence to support the lesser offence, over and above the evidence relied upon by the Crown to prove murder. For the voluntary forms of manslaughter – provocation, mental impairment or excessive self-defence – there must be evidence to enliven the factual issues that are specific to those forms, before it would become necessary to direct the jury as to the possibility of an alternative verdict. However, where manslaughter by unlawful and dangerous act is concerned, the evidence relied upon by the Crown to prove the accused’s acts causing death and to support the inference of the intent requisite for murder will often be coextensive with evidence that would prove an unlawful and dangerous act, should the jury find that the proof falls short of establishing the specific intent.

417. The inference of intent to cause at least grievous bodily harm was certainly open to this jury, upon the basis articulated in the above quoted extracts from the Crown’s closing address and the summing up. But a jury is never bound to draw an inference that an essential element of a criminal offence has been proved beyond reasonable doubt. It was equally open for the jury to give effect to any reasonable doubt they may have felt concerning the appellant’s alleged intent. If they did feel such a doubt, then on the same evidence it would have been open to them to find that his acts of striking the deceased were unlawful and dangerous and that a reasonable person in his position would have realised that she was thereby exposed to an appreciable risk of serious injury. If the jury did not find intent to cause death or grievous bodily harm, to the criminal standard, then the case for manslaughter by unlawful and dangerous act was there before them on the very evidence that they had been asked to consider on the charge of murder. There was a viable case of manslaughter. The jury should have been directed upon it, in the alternative.

418. Having regard to the evidence and the issues in this case, the only basis upon which it could be said that manslaughter was not open is if it should be concluded that the jury could not fail to be satisfied beyond reasonable doubt of the appellant’s intention to inflict at least grievous bodily harm. That is not a judgment within the authority of the trial judge, or this Court, to make. It was for the jury alone. The question of intent was left to them for the purpose of determining whether or not murder was proved. Their satisfaction, or not, on that issue would bear upon whether they needed to assess the appellant’s acts as unlawful and dangerous for the purpose of considering manslaughter. The jury should have been so directed.

Comparison with Lane v R and Carney v R; Cambey v R

419. In Lane v R [2013] NSWCCA 317 the Crown alleged that the appellant had murdered her two day old child. The Crown case was unequivocally based upon intent to kill, not merely intent to cause grievous bodily harm or reckless indifference to human life. No body was ever found and the Crown was not in a position to propose a cause death. There was no direct evidence of the appellant’s state of mind when the child died. In proof of all elements the Crown adduced evidence that the appellant had a history of taking steps to ensure that she did not have the responsibility of caring for a child or children. There was evidence that she had had two pregnancy terminations and that she had given up two children for adoption, one of them after the birth of the child who was alleged to have been murdered. That evidence was received in proof of tendency, pursuant to s 97 of the Evidence Act 1995 (NSW).

420. The Court (Bathurst CJ, Simpson and Adamson JJ) dismissed a ground of appeal in which it was asserted that the trial judge had “erred in failing to leave the alternative count of manslaughter to the jury”:

[104]   The circumstance that no cause of death can be determined concludes the issue of manslaughter by unlawful and dangerous act. Guilt of this offence depends upon the absence of intention to cause death or grievous bodily harm. As we have acknowledged above, the same evidence may be capable to giving rise to inferences that justify, or call for, a finding of murder, or that justify, or call for, a finding of manslaughter. As pointed out above, for a verdict of guilty of that category of manslaughter, it is necessary that the act causing death be identified with precision, in order that it can properly be characterised as both unlawful (a breach of the criminal law), and dangerous. What, it may be asked, is the criminal act that caused the death? How can it be said that it was dangerous in the sense that a reasonable person in the position of the appellant, performing that act, would have realised that he or she was exposing another or others to an appreciable risk of serious injury? The evidence was not such as to permit or justify the inferences necessary to found a conviction of manslaughter by unlawful and dangerous act. It was therefore not an error not to leave that verdict to the jury.

[105]   The same reasoning applies to manslaughter by criminal negligence. In order to establish guilt of that category of manslaughter, it is necessary that the Crown prove an act or omission in breach of the appellant's undoubted duty of care to [her child], the causal connection between that act or omission and the death, and, importantly, that the breach of duty was so grave as to merit criminal punishment. Guilt of this offence also depends upon the absence of intention to cause death or grievous bodily harm.

[106]   To come to a conclusion that the appellant was guilty of either category of manslaughter, in the absence of evidence as to the nature of the act or omission causing death, would be to engage in pure speculation. To leave either category of manslaughter to the jury would be to invite the jury to engage in pure speculation.

421. A counter-example is Carney v R; Cambey v R [2011] NSWCCA 223. For present purposes it is sufficient to consider the case of Carney. He used a metal bar to strike the deceased on the head at least four times, with varying levels of force, two of the blows with “significant force” causing a depressed fracture of the skull. The deceased died as a result of brain injury caused by the blunt force trauma to his head. The Crown primarily based its case at trial upon an intention to inflict grievous bodily harm, submitting that the jury should infer that there must have been such an intention because of the number of blows, the weight of the bar and the fact that significant force was required to fracture the skull. Carney was convicted of murder.

422. The Court (Whealy JA, James and Hoeben JJ) upheld the sole ground of appeal, that the trial judge erred in not leaving manslaughter to the jury. In concluding that manslaughter was open their Honours took into account not only the nature and circumstances of Carney’s acts but also evidence of his post-homicide statements and conduct, which could be construed as inconsistent with him having had an intent to cause grievous bodily harm at the time of the attack. The Court held as follows:

[61]   […] There can be little doubt that, had manslaughter been left, Carney may have had a difficult task persuading the jury that if, as it appeared, he had been the assailant striking the deceased with the metal bar, his intention was other than to inflict grievous bodily harm. The number of blows, the heavy bleeding and the increasing force of those blows would be likely to suggest to a jury that, at least at the time the blows were delivered, his intention went well beyond merely incapacitating the deceased. However, as [his counsel] argued, there was evidence that could possibly point the other way. A number of the confessional statements, and the post-incident reaction of all the men, supported the existence of a situation that had simply spun out of control. That this may have been so could suggest, even in Carney's case, that the scenario painted by [counsel, namely that Carney used the metal bar only intending to render the deceased unconscious or otherwise to incapacitate him without intention to cause him really serious harm] was a reasonable possibility. We would not agree that there was no evidence to support it, as the Crown argued, although we acknowledge the force of the Crown submissions that the jury might well have rejected such a defence case, had it been put. Nevertheless, there was no forensic evidence as to precisely the order in which the blows were inflicted and the men, it appears, fled in some panic without taking any drugs with them. The deceased's behaviour immediately after the attack, and prior to his departure in the ambulance, was also a relevant factor.

Strength of the manslaughter alternative in the present case

423. The Court expressed itself with restraint in stating that Carney “may have had a difficult task persuading the jury” to entertain a reasonable doubt whether four blows to the head with a heavy metal bar must have been accompanied by an intention to cause grievous bodily harm. However, that was for the jury to decide. The Court’s decision that manslaughter should have been left to the jury in Carney’s trial illustrates that, where there is evidence of the accused’s acts causing death and the jury are asked by the Crown to infer from the nature of those acts that grievous bodily harm was intended, it will often be integral to the jury’s deliberations that they also consider this question: if it is reasonably possible that the accused’s state of mind fell short of the specific intent, were the accused’s acts nevertheless unlawful and dangerous and such that a reasonable person in his or her position would have seen that the deceased was exposed to an appreciable risk of serious harm?

424. In some respects the present is a stronger case for manslaughter to have been left than Carney v R; Cambey v R. Although in this case there was no evidence of post-homicide statements or conduct by the appellant that might have supported, affirmatively, an intention merely to subdue or temporarily incapacitate Ms McBride, on the other hand the evidence was not definitive as to the number of blows or as to the use of any weapon. Repetition of blows, as in the case of Carney, would tend to suggest perseverance and hence intent to cause really serious injury. The use of a weapon with which to increase the damage caused by each blow would also support the inference. On Dr Clifton’s evidence there may have been only one heavy blow to the left side of the deceased’s face, causing her to fall backwards and strike the occipital region of her head upon hard ground. That is a description of what is commonly referred to as “one punch manslaughter”.

R 4.15 of the Supreme Court (Criminal Appeal) Rules

425. Leave to appeal on ground 4 should be granted pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules. In Roos v R [2019] NSWCCA 67 at [72]-[73], Gleeson JA (Harrison and Davies JJ agreeing) considered the former r 4 of the Criminal Appeal Rules. His Honour cited authorities by which it has been established that leave to rely on a direction or omission that was not contested at trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice; further, that the appellant must at least establish that he or she has lost a real chance, or a chance fairly open, of being acquitted.

426. The High Court has clearly stated that failure to leave manslaughter where it should have been left is an error of law: R v Kanaan, principle (4)(a). In Gilbert v The Queen at [18]-[20] Gleeson CJ and Gummow J approved and applied the following statement from Bullard v The Queen [1957] AC 635 at p 644 (Lord Tucker):

Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached.

427. Also in Gilbert v The Queen at [101] Callinan J said:

The appellant was entitled to a trial at which directions according to law were given. It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.

428. The dissenting judgment of Isaacs J in Ross v The King (1922) 30 CLR 246 at pp 260, 262-263 is another strong judicial statement that a miscarriage of justice, through loss of a chance fairly open of being acquitted of murder, will result from the legal error of failing to leave manslaughter to the jury where it is a viable alternative on the evidence.

429. Those authorities treat miscarriage of justice as so inherent in an error of this nature that leave to appeal under r 4.15 must almost inevitably be granted. Further, in considering the operation of r 4.15 the Court must take into account the High Court’s settled position that a trial judge must leave a viable alternative of manslaughter to the jury even in the face of opposition from defence counsel. Pronouncements of Barwick CJ were very emphatic in this respect. In Pemble v The Queen his Honour said this at pp 117-118:

Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.

In Mancini v Director of Public Prosecutions [1942] AC 1 provocation was not relied upon by defending counsel. In Kwaku Mensah v The King [1946] AC 83 provocation was not raised at the trial nor in the reasons in the appellant's case for the consideration of the Privy Council. But, there being material before the jury on which they could properly have found provocation so as to reduce the crime from murder to manslaughter, their Lordships considered the absence of any direction as to provocation when that matter was raised by counsel in argument before them for the first time; and for lack of appropriate direction set aside a conviction for murder.

Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.

430. In Varley v R (1976) 12 ALR 347; (1976) 51 ALJR 243 at 351/245 his Honour (Stephen, Mason, Jacobs and Aiken JJ agreeing) again emphasised the necessity to leave manslaughter, where open on the evidence, regardless of the position taken by defence counsel

[If] there were a basis in the evidence on which the jury, not being satisfied of all the elements of murder, could find manslaughter, [the judge] was bound to direct the jury accordingly. His duty in that regard cannot be controlled by the tactics or manoeuvring of the accused or of those representing him. So much clearly appears from the decided cases, eg Mancini v Director of Public Prosecutions; Gammage v The Queen; Pemble v The Queen. The duty to give the appropriate direction is owed to accused and Crown alike, for if the evidence will bear the conclusion of manslaughter, in default of the jury’s satisfaction of all the elements of murder, the Crown is not to be denied a verdict nor the accused entitled to an acquittal.

431. Those statements mean that if manslaughter is not left to the jury in a case where it should be, the accused on appeal cannot be held to the conduct of his or her counsel at trial. The filter of r 4.15, directed against points raised on appeal that counsel chose not to take at trial, is not engaged with respect to an aspect of directing the jury in which the trial judge is required to act irrespective of counsel’s submissions or elections. The substantive law laid down by the High Court has for all practical purposes overridden the application of the procedural rule in relation to an appeal ground of this nature.

The proviso to s 6(1) of the Criminal Appeal Act 2012 (NSW)

432. As the appellant’s conviction is affected by a “wrong decision on the question of law”, within the meaning of s 6(1) of the Criminal Appeal Act 2012 (NSW), the appeal should be allowed unless the Court “considers that no substantial miscarriage of justice has actually occurred”. Principle 4(c) as stated in R v Kanaan is applicable: it is not open to the Court to rule out a substantial miscarriage of justice upon the basis that the jury, properly instructed as to the elements of murder, found that it was proved beyond reasonable doubt.

433. The question whether the proviso is engaged must be determined in accordance with Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81. The following paragraphs of the Court’s judgment must be considered:

[44]   […] No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilty of the offence on which the jury returned its verdict of guilty.

[45]   Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for the court not to dismiss the appeal [that is, not to apply the proviso], even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of that kind.

[46]   It is unnecessary in this appeal to examine the issue further, or to consider the related question whether some errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form of criminal appeal provision with its proviso: [Wilde v The Queen (1988) 164 CLR 365; [1988] HCA 6 and other authorities cited]. […] [Emphasis added.]

434. Those paragraphs make plain that it is a necessary but not sufficient condition for the application of the proviso that the appellate court should be satisfied, upon its own review of the entire record, “that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilty of the offence on which the jury returned its verdict of guilty”. The necessary but not sufficient character of such a conclusion was further spelt out in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [53] (Gummow and Hayne JJ):

[53]   In Weiss, the Court identified one circumstance in which the proviso to the common form criminal appeal statute cannot be engaged. The Court said [at [44]] that the proviso cannot be engaged "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty". This negative proposition (about when the proviso cannot be engaged) must not be treated as if it states what suffices to show that no substantial miscarriage has occurred. [...]

435. In AK v Western Australia Gleeson CJ and Kiefel J were in dissent but their Honours made the same point:

[23]   It was submitted on behalf of the appellant that some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strength of the prosecution case, or the appellate court's view as to the guilt of the accused. […]. Furthermore, it was said, the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just. As a matter of principle, these propositions are correct.

436. For present purposes, the importance of the above passages is that, even if full examination of the evidence adduced at trial should persuade the Court of the appellant’s guilt, the nature of the error may be of such a fundamental kind that the proviso should not be applied. That being so, it is consistent with Weiss v The Queen and the cases that have followed it to commence by determining whether the error identified in the appellant’s ground 4 involved such a “significant denial of procedural fairness” or such a “serious breach of the presuppositions of the trial” that the proviso should not be applied even if the Court should be satisfied of the appellant’s guilt.

437. That approach is consistent with the judgment of the present Chief Justice of the High Court in Hofer v The Queen [2021] HCA 36. His Honour said that determination of whether the proviso is engaged is to be approached in the following way (citations omitted):

[121]   The terminology is unimportant provided it is understood that the requisite analysis in the context of finding a miscarriage of justice is factual. The inquiry is into the tendency or propensity of an error or irregularity to have affected the basis on which the trial jury actually reached its verdict in the totality of the events that occurred in the trial that was had. […]

[…]

[12]   Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect", an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established. Only then can a further issue arise of the appellate court going on in the consideration of the proviso to ask and answer the distinct question of whether the court is satisfied that no substantial miscarriage of justice actually occurred. And only where that distinct question arises does the court need itself to be satisfied that the evidence properly admitted at trial established guilt beyond reasonable doubt before it can answer that no substantial miscarriage of justice actually occurred.

438. Here, the failure to leave manslaughter was an error of law that gave rise to a miscarriage of justice for the reasons explained in the authorities quoted at [426]-[428] above. It cannot be said that no substantial miscarriage of justice actually occurred. The proviso is not engaged because the failure to direct the jury as to the alternative of finding the appellant guilty of manslaughter by unlawful and dangerous act, rather than murder, was a “serious breach of the presuppositions of the trial”. For the purposes of resolving whether the proviso is applicable, it does not become necessary for me to satisfy myself, upon the whole of the evidence at the trial, whether or not the appellant’s guilt of murder was proved.

The incidence of appeals on grounds of this type

439. In Lane v R at [99] the Court said of the decision in Carney v R; Cambey v R that it is “a precedent likely to encourage appeal grounds of the kind now under consideration”, referring to ground 1 in the Lane appeal, which, like ground 4 in the present appeal, asserted error on the part of the trial judge by failing to leave manslaughter to the jury. Having regard to the principles summarised in R v Kanaan, the incidence of such appeals will be entirely dependent upon the rigour and accuracy with which trial judges assess the viability of manslaughter as an alternative in murder trials. The duty of a trial judge to decide that question according to his or her independent assessment, which may cause the judge to give directions that are not supported by either party, is anomalous amongst the usual functions of a judge in an adversarial system. Resolving to direct the jury in terms that both parties oppose, or, at least that neither of them supports, is an unfamiliar course. Such a decision may be susceptible to doubt and mistake for the very reason that the judge does not have the assistance of argument for and against.

440. Where the question of leaving manslaughter to the jury arises and defence counsel resists, Crown counsel with a thorough understanding of the authorities discussed in this judgment and exercising detachment as a minister of justice, in accordance with the norms of prosecution in our system, may assist a trial judge to avoid error and to avert the waste of resources that attends upon appeal and retrial.

Orders with respect to the conviction appeal

441. For the foregoing reasons I would grant leave to appeal, uphold ground 4, allow the appeal, quash the conviction and order a retrial.

The sentence appeal

442. As mine is a minority view, the conviction will stand and the sentence appeal must be addressed. I agree with Ward P, for the reasons her Honour has given, that leave to appeal against sentence should be granted but that each of grounds 6-8 should be rejected and the appeal dismissed.

443. With respect to ground 6, the sentencing judge’s finding that the appellant intended to kill Ms McBride was open to him. The fact that his Honour reached that conclusion, after verdict, has no bearing upon ground 4, which concerns what was open to the jury to decide with respect to intent and how manslaughter by unlawful and dangerous act might have been found if the jury were not satisfied of the specific intent for murder.

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Amendments

07 March 2024 - Amendment to counsel representation

Decision last updated: 24 July 2025