R v Best

[2012] NSWSC 924

Supreme Court

New South Wales

Medium Neutral Citation:

R v BEST [2012] NSWSC 924

Hearing dates:

25 June 2012

Decision date:

13 August 2012

Before:

Rothman J

Decision:

To the charge of indecently interfere with dead human body - the accused is found not guilty

To the charge of improperly interfere with corpse or human remains - the accused is found guilty.

Catchwords:

CRIMINAL LAW - back up charges following a murder trial which resulted in a not guilty verdict - accused charged with indecently and improperly interfering with a dead human body contrary to ss 81C(a) and (b) of the Crimes Act 1900 - all evidence as to charges heard in murder trial - credit of Crown witnesses taken into account - factual determination.

Legislation Cited:

Crimes Act 1900
Criminal Procedure Act 1986

Cases Cited:

Mraz v R (1956) 96 CLR 62

Category:

Principal judgment

Parties:

Regina (Crown)
Robert Thomas Best (accused)

Representation:

Counsel:
Mr C Maxwell QC and Mr C M Everson (for the Crown)
Mr P Young SC and Mr B Hancock (for the accused)
Solicitors: Director of Public Prosecutions (for the Crown)
Nikola Velcic & Associates (for the accused)

File Number(s):

2010/274792

Judgment

1. HIS HONOUR: Robert Best faces charges of indecently interfering with a dead human body, contrary to s 81C(a) of the Crimes Act 1900 (Count 1) and improperly interfering with a dead human body contrary to s 81C(b) of the Crimes Act (Count 2). Mr Best pleads not guilty to each.

1. These charges come before the Court, as back up charges to the offence of murder, of which, after trial before a jury, Mr Best was found not guilty. The two charges are for back up offences, as defined in s 165 of the Criminal Procedure Act 1986 and have been dealt with in accordance with s 166 thereof. Pursuant to the terms of s 168 of the Criminal Procedure Act, the Court is dealing with each offence without a jury and on the basis only of the evidence given during the trial of the accused for the original murder offence. No leave has been sought, or granted, to call additional evidence: see s 168(2) of the Criminal Procedure Act.

Plea in bar

1. Mr Best submits that each of the back-up charges should be dismissed. The submission is based on a plea in bar and the accused relies on Mraz v R (1956) 96 CLR 62. The submission is misplaced.

1. In Mraz, the High Court was considering the effect of a not guilty verdict to murder (but guilty of manslaughter), where one of the matters on which the Crown relied to satisfy the mental element of the murder was that the act that killed the victim was part of a rape. The Court then took the view that a subsequent charge of rape was inconsistent with the jury's verdict and could not stand. This is a very different situation.

1. As accepted by the accused, the summing up to the jury made clear that, while the act of dismemberment of the body may assist in the identification of the murderer, if the jury were sure that the accused had dismembered the deceased but were not sure that he had committed the murder, they were required to acquit. The elements of these back-up charges are very different to the murder. These charges are not derivative; they do not depend on a murder having been committed. These charges apply to the treatment of a dead body regardless of the cause of death or the person, if any, that caused it. These charges respectively depend only on the indecent or improper treatment of a dead body.

1. As the High Court has said:

"A plea in bar goes to offences, the elements of which are the same as, or included in, the elements of the offence for which an accused has been tried to conviction or acquittal" Pearce v The Queen (1998) 194 CLR 610 at 616, [18], per McHugh, Hayne and Callinan JJ.

1. This submission fails and the charges are, as a matter of law, open.

Consideration: First Charge, "Indecent interference"

1. The Crown submits that the Court should dismiss the charge of indecently interfering, on the basis that the jury verdict on the murder charge is consistent only with the jury not believing the witness that described the murder and the conduct, which, the Crown alleges, gives rise to the indecent interference. The legislation dealing with the procedure to be adopted by the Court requires the Court to have regard to all of the evidence adduced at the trial; it does not seem to require the Court to take the same view of the evidence that the jury did, subject always to the overriding principles of double jeopardy and ensuring that the verdicts are not inconsistent.

1. Moreover, as is made plain in the standard directions to juries, the jury was quite capable of disbelieving the witness in one respect and believing her in others. Nevertheless, it is unnecessary to decide these issues finally. For reasons upon which I will briefly elaborate, I am unable to accept the version of events of Ms Hogden, the aforementioned witness, to the requisite standard that would enable conviction for Count 1. It is necessary to deal with the issues raised by the charge on Count 2.

Consideration: Second Charge, "Improper interference"

1. The major witness in the trial for murder was Ms Debbra Hogden. In her evidence, Ms Hogden described the accused, Mr Best, as having strangled the deceased, Ms Kristi McDougall, and thereafter having immersed the deceased's head in water, effecting her death. After killing her, according to Ms Hogden, Mr Best effected a digital penetration of the deceased's vagina and licked her breasts. There was no scientific or other independent evidence to support this version.

1. These events occurred in circumstances that they commenced within seconds of Ms Hogden opening the door to the deceased. The deceased was a drug dealer who sold drugs to both Mr Best and Ms Hogden. Further, Ms Hogden testified that, while Mr Best was strangling the deceased, she sought to assist the deceased by jumping on the back of Mr Best, hitting and kicking him, and screaming loudly at him to stop.

1. At or about this time, Mr Murley, also a witness in the proceedings, knocked at the door in order to check on the welfare of Mr Best and to obtain drugs. Mr Murley's evidence was that he had passed by the villa unit in which these events were allegedly occurring shortly beforehand and heard muffled voices. I accept Mr Murley's evidence. It is inconsistent with the version of events told by Ms Hogden. Further, the timing as recounted by Ms Hogden renders her story unbelievable.

1. I adopt each of the warnings provided to the jury during the proceedings as matters that I take into account in dealing with the evidence before me. In particular, I take into account the warnings given in relation to the evidence of Ms Hogden and of Mr Struczewski. Given my view of the evidence of Ms Hogden, I would have taken the view that the Crown had failed to prove beyond a reasonable doubt that Mr Best killed Ms McDougall. That, of course, was the view of the jury by which I would otherwise be bound. It is just as likely that Ms Hogden killed the deceased; or perhaps both were involved, or, although less likely, a third and unknown person. I state these findings because the credit of Ms Hogden is crucial to Count 1.

1. Further, the "admission" to Mr Struczewski, a prison informer, is consistent with an admission as to Count 2, and not the murder. Nevertheless, I give the conversation that allegedly occurred between Mr Best and Mr Struczewski very little weight. At best, it is confirmatory of other independent evidence, if that other evidence were sufficient to prove guilt.

1. The Crown relies on 12 particular circumstances arising from the evidence to support its case in relation to Count 2. It is necessary to note that the deceased's torso was discovered in park bushland in Doonside. The body had been dismembered; the head, arms and legs have not been found. Given the method of disposal of the torso, it is unlikely they will ever be found. The matters upon which the Crown relies require explanation.

1. First, there was scientific evidence that the body had been dismembered by a hacksaw. I accept that evidence. The hacksaw used to dismember the deceased was borrowed by the accused and was found in his van. Essentially, no issue is taken with the foregoing.

1. The Crown also relies upon the fact that, on its submission, the hacksaw was borrowed at a time that was consistent with the dismembering of the deceased. The accused raises no issue that he was in possession of the hacksaw for some of the period between 19 June 2010 and 18 August 2010.

1. The only explanation for the possession of the hacksaw suggested by the accused was a suggestion made in cross-examination of Ms Hogden. This suggestion was that the accused borrowed the hacksaw to remove a lock on the gate of the house of Ms Hogden's sister. It was unnecessary, on the evidence before the Court, to remove the lock, and it has not been removed by use of a hacksaw or otherwise.

1. As earlier stated, the hacksaw was found in Mr Best's van. The hacksaw was found in the van of the accused with hair and with other substance containing the DNA profile of the deceased. Mr Best purchased the van after the disappearance of the deceased.

1. Mr Best raised, in argument, the fact that others may have had access to the van and therefore had a capacity to place the hacksaw in the van. However, the Court is not being asked to find, beyond reasonable doubt, that Mr Best had sole possession of the hacksaw, while it was in his van. The location of the hacksaw was one circumstance, added to others, which is that which the Crown asks the Court to use in finding guilt beyond a reasonable doubt.

1. Mr Best had removed the back seat of the van to allow the carrying of larger objects. Mr Best, in submissions, refers to the fact that the rear of the van has a reasonably spacious area, possibly sufficient to hold a body, even if the rear seats were not removed. Lastly, in this respect, he said, the removal of the rear seats is a neutral fact in the determination of the circumstances giving rise to guilt.

1. Mr Ash Kandola testified that he had twice seen Mr Best in the early hours of the morning (one of which was 3:30 AM) carrying garbage bags, seemingly for deposit. The deceased's torso was found in a garbage bag. Mr Best refers to this evidence and the inconsistency in dates between the sighting of Mr Best carrying the garbage bags and the evidence of the time that Mr Best borrowed the hacksaw. There is a difference of approximately two or three weeks in the timing. However, the timing of events in the past is notoriously unreliable.

1. Mr Best's son, David, who is, to the knowledge of the Court, brain-damaged and on medication, gave evidence of seeing the accused at the park area at which the body was found, some weeks after the disappearance of the deceased. Nevertheless, Mr Best had an innocent explanation for his presence in the parkland, being that he had mistakenly gone there (with his son David) to watch another son play football. In fact, the other son was playing at a different ground.

1. Lastly, leaving aside the evidence of Mr Struczewski, there is the content of a text message sent at 15:33 on 19 June 2010 to the mobile number of the deceased. I accept that Mr Best sent the text message. It is consistent with his statement to the police and seems wholly uncontroversial. The terms of the text thank the deceased for meeting Mr Best at Homebush.

1. Mr Best did not meet the deceased at Homebush. If the deceased were alive at the time that such a text message was received, or if Mr Best were of the belief that she was alive and would be some time into the future thereafter, the message would have been knowingly untrue to the recipient. The sending of the message makes sense only as an attempt at an alibi, knowing that the deceased would never receive the text.

1. The combination of the foregoing proves, in my view, beyond reasonable doubt that the accused knew, almost immediately, of the death of the deceased and was in possession of the weapon used to dismember her. Further, it proves, when combined with the other aspects, the suspicious disposal of items in garbage bags, which bags were consistent with the ones used to dispose of the torso. While no single piece of evidence proves, beyond reasonable doubt, the offence in question, it would defy common sense and common experience if Mr Best were not to have dismembered the body. That explanation is the only reasonable explanation available for all of the foregoing facts.

1. Further, Mr Best bought the garbage bags on the night that Ms McDougall disappeared. To all of that must be added the alleged admission of which Mr Struczewski testified. I find Count 2 proved beyond a reasonable doubt and Mr Best guilty of improperly interfering with a dead human body or human remains, namely, Kristi McDougall. The maximum sentence for the foregoing offence is two years' imprisonment. Mr Best has been in prison, as a result of the murder charge, of which he was found not guilty, since 18 August 2010, almost two years. I will hear submissions, if any, on sentence.

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Decision last updated: 14 August 2012