R v Clark - [2001] NSWCCA 494

No judgment structure available for this case.

Reported Decision:
123 A Crim R 506

New South Wales

Court of Criminal Appeal

CITATION: R v Clark [2001] NSWCCA 494

FILE NUMBER(S): CCA 60377/01

HEARING DATE(S): 9 November 2001

JUDGMENT DATE:
13 December 2001

PARTIES :

Regina v Steven John Clark

JUDGMENT OF: Heydon JA at 1; Dowd J at 219; Bell J at 239

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S) : 70076/00

LOWER COURT JUDICIAL
OFFICER : Barr J

COUNSEL : Mr G E Smith (Crown)
Mr C P Heazlewood (Appellant)

SOLICITORS: S E O'Connor (Crown)
Baker Ryrie Rickards Titmarsh (Appellant)

CATCHWORDS: Criminal Law - Murder - Appeal against conviction - Evidence - Unreliable evidence - Judicial directions to jury - Whether necessity for unreliable evidence warning - Where Crown's major witness testified under indemnity from prosecution - Where no such warning sought at trial - Whether leave should be granted to argue point - Whether witness was "criminally concerned in the events giving rise to the proceeding" - Criminal Appeal Rules, r 4 - Evidence Act 1995 (NSW) s 165 - Criminal Law - Murder - Appeal against conviction - Evidence - "Relationship evidence" - Admissibility - Evidence of contemporaneous representations by deceased demonstrating deceased's negative state of mind about relationship with appellant - Exception to hearsay rule - Whether unfairly prejudicial justifying exclusion - Evidence Act 1995 (NSW), ss 55(1), 72 and 135-137 - Criminal Law - Murder - Appeal against sentence - Whether non-parole period of less than three-quarters of head sentence warranted - Whether appellant's intellectual/physical difficulties amounted to "special circumstances" - Crimes (Sentencing Procedure) Act 1999, s 44(2) - D

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)

CASES CITED:
Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542
B v R (1992) 175 CLR 599
R v Bedingfield (1879) 14 Cox CC 431
R v Blick [2000] NSWCCA 61
R v Booth [1982] 2 NSWLR 847
R v Carranceja (1989) 42 A Crim R 402
R v Chai (1992) 27 NSWLR 153
R v Checconi (1988) 34 A Crim R 160
Davies v Director of Public Prosecutions [1954] AC 378
R v Fahda [1999] NSWCCA 267
R v Farler (1837) 8 C & P 106
R v Fraser (NSWCCA, 10 August 1998)
R v Frawley (1993) 69 A Crim R 208
R v Fulcher [1995] 2 Cr App R 251
R v Garner (1963) 81 WN (Pt 1) (NSW) 120
Gipp v R (1998) 194 CLR 106
Glennon v R (1994) 119 ALR 706
R v Gratton (1971) 4 NBR (2d) 14
R v Heath [1991] 2 Qd R 182
R v Hissey (1973) 6 SASR 280
R v Iuliano [1971] VR 412
Kailis v R (1999) 21 WAR 100
Khan v R [1971] WAR 44
R v Letteri (unreported, Court of Criminal Appeal, 18 March 1992)
R v Lewis (1906) 8 WALR 83
R v Ling (1982) 6 A Crim R 429
McNee v Kay [1953] VLR 520
R v MM (2000) 112 A Crim R 519
KRM v R (2001) 178 ALR 385
Majara v R [1954] AC 235
R v Mason (1869) 5 Aust Digest 881-2
R v Ncanana 1948 (4) SA 399
O'Leary v R (1946) 73 CLR 566
Papakosmas v R (1999) 196 CLR 297
R v Peake (1996) 67 SASR 297
Pearmine v R [1988] WAR 315
R v Perry [1970] 2 NSWR 501
R v Pipe (1966) 51 Cr App R 17
Plomp v R (1963) 110 CLR 234
R v Ready [1942] VLR 85
R v Robichaud (1938) 13 MPR 22
R v S [2000] 1 Qd R 445
R v Sawoniuk [2000] 2 Cr App R 220
Shaw v R (1952) 85 CLR 365
Singleton v Ffrench (1986) 5 NSWLR 425
R v Sneesby [1951] Qd R 26
R v Stewart [2001] NSWCA 260
R v Tevendale [1955] VLR 95
R v Toki (2000) 116 A Crim R 536
R v Tripodina (1988) 35 A Crim R 183
R v Tsingopoulos [1964] VR
R v Vollmer [1996] 1 VR 95
Wilson v R (1970) 123 CLR 334
R v Wozniak (1988) 16 NSWLR 185

DECISION: The appeal against conviction is dismissed; the application for leave to appeal against sentence is dismissed

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF CRIMINAL APPEAL

60377/01

HEYDON JA
DOWD J
BELL J

13 December 2001

REGINA v Steven John CLARK

Criminal Law – Murder – Appeal against conviction – Evidence – Unreliable evidence - Judicial directions to jury – Whether necessity for unreliable evidence warning – Where Crown’s major witness testified under indemnity from prosecution – Where no such warning sought at trial – Whether leave should be granted to argue point – Whether witness was “criminally concerned in the events giving rise to the proceeding” - Criminal Appeal Rules, r 4 - Evidence Act 1995 (NSW) s 165

Criminal Law – Murder – Appeal against conviction - Evidence – “Relationship evidence” - Admissibility – Evidence of contemporaneous representations by deceased demonstrating deceased’s negative state of mind about relationship with appellant – Exception to hearsay rule – Whether unfairly prejudicial justifying exclusion - Evidence Act 1995 (NSW), ss 55(1), 72 and 135-137

Criminal Law – Murder – Appeal against sentence – Whether non-parole period of less than three-quarters of head sentence warranted - Whether appellant’s intellectual/physical difficulties amounted to “special circumstances” - Crimes (Sentencing Procedure) Act 1999, s 44(2)

The appellant was tried before a judge and jury on the count of murdering Lynette Kay Lock (the deceased). The most important Crown witness was Mr Brown, who testified that the appellant had confessed the murder to him. Mr Brown gave this evidence under an indemnity from prosecution. The appellant was convicted and sentenced to imprisonment for sixteen years with a non-parole period of twelve years. The appellant appealed against both conviction and sentence.

Held by Heydon JA (Dowd & Bell JJ concurring), dismissing the appeal against conviction:

(per curiam)
1. It was not shown that the trial judge erred by failing to give a warning to the jury about Mr Brown’s evidence in light of Mr Brown’s indemnity from prosecution.

a. It was not erroneous for the trial judge to refrain from lending the imprimatur of his office to counsel’s criticisms of Mr Brown’s evidence. If the judge had done so, it would probably have verged on an impermissible usurpation of the jury’s function.

The types of directions or warnings to which a judicial imprimatur must be lent are usually those compelled by rules of law and practice, and comments on the specific evidence in the case are not such directions.

b. Counsel for the appellant at trial did not ask for such a warning in relation to Mr Brown’s evidence. As a result, leave was required on appeal for the relevant grounds, under r 4 of the Criminal Appeal Rules.

c. Leave to argue the relevant grounds should be denied since the lack of warning caused no miscarriage of justice or unfairness.

d. The trial judge cannot be said to have failed to carry out a duty created by s 165 of the Evidence Act 1995 to give an unreliable evidence warning. This is because s 165 does not impose a duty to give a warning unless a party requests one (s 165(2)), and no such request was made. The trial judge did not err by failing to make an unreliable evidence warning of his own motion about Mr Brown’s evidence in light of his indemnity from prosecution.

R v Chai

iv. Even if it had been shown that Mr Brown was a witness who might reasonably be supposed to have been “criminally concerned in the events giving rise to the proceeding”, it was not shown that his evidence was of a “kind” that may be unreliable under s 165(1). Mr Brown had nothing to gain from establishing the appellant’s guilt, and his evidence was open to scrutiny by counsel and the trial judge.

(per Heydon JA & Bell J, Dowd J disagreeing in part)
2. The trial judge did not err by permitting evidence to be given that went to the relationship between the deceased and the appellant.

a. In this case the admissibility of the “relationship evidence” in question was governed by the Evidence Act 1995. Its reception turned upon three issues: relevance, the application/avoidance of any exclusionary provision, and whether any order should have been made under ss 135-137.

R v Frawley

b. The evidence was relevant under s 55(1).
i. The evidence was relevant because (in the light of other evidence) it could rationally affect the assessment of the probability of the existence of a fact in issue, being whether the car journey ended in the killing of the deceased by the appellant.

ii. The evidence did not relate to so remote a period of time as to prevent it from being relevant. It related to events happening no more than five weeks before the killing of the deceased.

a. To the extent that the relationship evidence was hearsay it was rendered admissible by s 72, which makes the hearsay rule inapplicable to evidence of contemporaneous representations made by a person about his/her feelings or state of mind.

b. Error has not been demonstrated in the trial judge’s decision not to exclude the evidence under s 135. The trial judge’s reasoning made s 137 inapplicable, and his s 136 rulings were appropriate.

i. The inability to cross-examine the deceased was not unfairly prejudicial in this particular case. The inability to cross-examine the deceased was the necessary result of changes to the law that now permit evidence of a deceased’s state of mind to be admitted as an exception to the hearsay rule.

ii. The evidence was not significantly more prejudicial than other similar evidence about which the appellant did not complain.

Per Dowd J: Some of the evidence was inadmissible by reason of s 137.

(per curiam)
3. Even if the trial judge had erred in any of the ways complained of on appeal, the appeal should be dismissed under the proviso to s 6(1) of the Criminal Appeal Act 1912, which allows an appeal to be dismissed when “no substantial miscarriage of justice has actually occurred”.

a. The proviso can be applied when the error is not so fundamental as to have caused the trial to miscarry so far as hardly to be a trial at all, and the conviction was “inevitable”, so that the appellant has not lost a chance of acquittal fairly open to him.

Glennon v R

b. In this case, the alleged errors were not “fundamental” in the necessary sense. The Crown case was very strong making conviction inevitable. There was evidence suggesting motive, capacity, opportunity and consciousness of guilt on the appellant’s part. There were questionable aspects of the appellant’s testimony. The jury would have accepted Mr Brown’s evidence even if the direction which it is now claimed should have been given was given. There were many items of evidence with force independent of the “relationship evidence”.

Held by Heydon JA (Dowd & Bell JJ concurring), dismissing the application for leave to appeal against sentence:

1. The trial judge’s sentencing discretion did not miscarry. The appellant’s intellectual and physical difficulties did not amount to “special circumstances” warranting a non-parole period of less than three-quarters of the head sentence under s 44(2) of the Crimes (Sentencing Procedure) Act 1999.

a. The appellant’s active working life as the owner and operator of small businesses and enterprises, evidences much more capacity than that which would show mental or physical disability for s 44(2) purposes.

b. The overall sentencing result was not unjust. The head sentence itself was lenient, considering the seriousness of the crime. When the trial judge calculated the head sentence he took into account the difficulties that the appellant’s condition would cause in serving the sentence. For the difficulties to be taken into account again on appeal in relation to the non-parole period would involve doubling up.

ORDERS

1.

The appeal against conviction is dismissed.

2.

The application for leave to appeal against sentence is dismissed.

60377/01
HEYDON JA
DOWD J
BELL J

13 December 2001

REGINA v Steven John CLARK

Judgment

HEYDON JA

1 On 23 April 2001, after a trial before Barr J and a jury, Steven John Clark, who was born in 1965, was convicted of murdering Lynette Kay Lock on 7 February 1999 at Mathoura. On 14 June 2001 the trial judge sentenced him to imprisonment for sixteen years with a non-parole period of twelve years. This is an appeal against both conviction and sentence.

Background

2 The background to the appeal is sufficiently explained by the facts as found by the trial judge in his remarks on sentence.

“The offender was invalided out of the Royal Australian Navy because of serious disabilities resulting from injuries he received in a motor vehicle accident that occurred during his naval service. He received a substantial amount of money by way of compensation and used part of it to purchase the franchise of the post office at Mathoura in about 1993. He began to manage and operate the post office. He also purchased dwelling houses in Mathoura and elsewhere. One such house, in the village of Mathoura, was occupied by the offender’s mother, Mrs. Heil. She suffered from multiple sclerosis.

The deceased, Lynette Kay Lock, also lived in the village. She successfully applied for the franchise to deliver mail from Mathoura to residents of the village and certain of the outlying districts. She and the offender seem at first to have had a reasonable working relationship. Their responsibilities were independent. The offender was not responsible to see that the deceased carried out her duties properly and had no authority over her.

The offender was always concerned about his mother’s state of health and there came a time when he thought it might be in his mother’s best interests to have someone such as the deceased living with her in the house. He suggested to the deceased that she board with his mother, in effect paying a portion of her rent in money and a portion in caring for Mrs Heil and doing help around the house.

As time went on the offender’s attitude towards the deceased changed. It is necessary in order to explain that change to say something about his perceptions of her, her conduct and her intentions. It is not generally necessary, however, to consider whether his perceptions were accurate.

Unfortunately tension arose between Mrs Heil and the deceased. It was suggested to the offender that the deceased was interfering in the friendship of Mrs Heil and other residents of the village and behaving in a domineering and possessive manner. There were other problems too. Complaints were made that the deceased was not delivering the mail satisfactorily. Members of the public did not understand that the offender was not responsible for the manner in which she did her work and brought their complaints to him. That also caused the relations between the offender and the deceased to deteriorate.

The offender and his family received advice, including medical advice, that it would be better for Mrs Heil if the deceased were to move out of her house. The deceased was given a month to find other accommodation. By that time she no longer had the postal delivery franchise. It appeared to the offender as though she were making no effort to find anywhere else to live. He knew, for example, that there were vacancies at the caravan park, yet she said that she had been unable to find accommodation. I think that the offender must have suspected that the deceased would not move out of Mrs Heil’s house unless substantial pressure were brought to bear.

On the morning of 7 February 1999 the offender and Mrs Heil were due to leave Mathoura to attend a barbecue at a village in Victoria about sixty-eight kilometres from Mathoura. The journey between the two villages would have taken about forty-five minutes. The barbecue was being held by a sister of the offender and the plan was that he should take Mrs Heil there. The barbecue was due to commence at about 11.30am. Two witnesses remembered seeing the deceased alive on the morning of 7 February. One, Miss Bright, was serving in a shop and attended to her some time between 9 and 10.30am. Mr Colin Robertson, a particular friend of the deceased, said that she left his house at about 9.30am. Witnesses who attended the barbecue estimated the time of arrival of the offender and Mrs Heil as between midday and 1pm. The evidence of the offender was that they arrived at about 11.30am, having stopped off on the way in Echuca to purchase sausages and for him to inspect his investment properties there.

The pine forest where the remains of the deceased were found several months later was rather more than twenty kilometres out of Mathoura in the opposite direction. The jury were obviously satisfied that the offender had time to collect the deceased from Mrs Heil’s house, take her to the pine forest, kill her and dispose of her body and return to Mathoura in time to collect Mrs Heil and take her to the barbecue.

DNA evidence satisfactorily identified the few remains found months later as those of the deceased.

The most important witness in the Crown case was Mr Scott Dennis Brown, an old friend of the offender from their Navy days and one of the few who had kept in touch with him since his medical discharge. They saw each other a number of times each year and were in a sideline business together. Mr Brown, who lived in Canberra, used to purchase second hand computers and prepare them for resale. Some of them were sold through the offender at Mathoura. On one of the visits of Mr Brown to Mathoura the offender told him that he had driven the deceased from Mathoura to the pine forest and had shot her three times before dragging her body some way into the forest and leaving it. He left with Mr Brown some written instructions for the use of a 9 mm Browning pistol.

Mr Brown kept these things to himself for a long time but eventually told the police and when a search was carried out later on three fired cartridge cases were found, appropriate for use with 9 mm bullets.

The jury were instructed that they must not find the offender guilty unless satisfied beyond reasonable doubt that Mr Brown’s account of the manner in which the accused told him he killed the deceased was reliable. I conclude that the offender killed the deceased in the manner which he described to Mr Brown. His intent was to kill. I think that his motive for doing so must have been his frustration over the difficulties he was having in getting her to leave his mother’s house, coupled with his anxiety for his mother’s health and his resentment over troubles he had had because of the deceased’s failure to carry out her delivery duties properly and which were no fault of his.”

Grounds 1 and 2: directions about Mr Brown

The grounds

3 These grounds are as follows:

“1. His Honour failed to direct the jury in relation to the critical evidence of Mr Brown that because of his indemnity from prosecution his evidence was unreliable within the terms of s 165 of the Evidence Act.

2. That whilst His Honour did direct the jury that if they had a reasonable doubt about Mr Brown’s evidence they would have to acquit the accused, they were not directed as to the caution referred to in s 165(2) and the weight to be given to it.”

Mr Winter

4 The appellant has drawn attention to the fact that Anthony Dean Winter, a truck driver, gave evidence that he had seen the deceased alive on the road near Mathoura at about 12.19pm on 7 February 1999 as his truck drove past her. If that evidence were correct, it excluded the possibility of the appellant having murdered the deceased. Mr Winter had never seen the deceased before; he had identified her from photographs; and his evidence as recorded in the transcript is somewhat vague and uncertain. The trial judge directed the jury that if they thought there was a reasonable possibility that Mr Winter’s identification was accurate, the appellant had to be acquitted. The trial judge then directed the jury at some length about the factors bearing on Mr Winter’s identification and what counsel said about them.

5 The appellant pointed out that the trial judge said at page 21 of his summing up:

“I want now to come to the evidence of Mr Brown. It and possibly the evidence of Mr Winter is the most important evidence in the trial and I am going to leave the evidence of Mr Winter till last.”

The appellant submitted that since the jury had evidently rejected Mr Winter’s evidence, Mr Brown’s evidence remained as the most important evidence in the case.

The summing up about Mr Brown

6 The trial judge said the following about Mr Brown in his summing up, which began on the morning of Friday 20 April 2001. The details are important for various reasons. One of the reasons is that since the addresses of counsel are not in the appeal papers, the trial judge’s summary of the submissions advanced for the appellant is the only guide to what they were.

“In order to prove the exact manner of Miss Lock’s death the Crown relies on the evidence of Mr Brown. You will remember that when he opened the case to you three weeks ago the Crown Prosecutor told you that the evidence of Mr Brown would be critical to the Crown case and he said the same thing in his closing address to you yesterday. It is only Mr Brown’s evidence that can prove that the accused did the act causing death, namely, the shooting of Miss Lock. It is only Mr Brown’s evidence that can prove that when he did the act causing the death of the deceased the accused intended to kill Lynette Lock or at least to do her really serious injury. As I have told you, the Crown must prove both those matters beyond reasonable doubt and by putting the matter in that way at the start of this trial, that the accused shot the deceased, that is something the Crown has to prove.

You may be tempted to see the resolution of this trial as depending on which of Mr Brown and the accused is telling the truth. Mr Brown swears that the accused confessed to him that he had shot Miss Lock and the accused swears that he said no such thing. You may during the course of your deliberations decide which of the two is telling the truth. However, if you regard the matter only in that simple way, you may be misled and forget what I have already told you, namely, that it is for the Crown to prove its case beyond reasonable doubt; no burden of proof lies on the accused.

It follows that before you can find the accused guilty you must be satisfied beyond reasonable doubt that Mr Brown is a truthful and accurate witness insofar as he tells you that the accused confessed to him that he shot Miss Lock. I will come back and deal with Mr Brown’s evidence in due course … .”

7 Later he said (at pages 21-27):

“Mr Brown had known the accused for years, they had been in the Navy together as young men. They had remained friends after they both left the Navy. I think Mr Brown left somewhat earlier than the accused.

The accused had to leave the Navy when he was invalided out after that very serious accident he had on the motor bike. But whereas it appears that a lot or most of the accused’s friends lost contact with him, Mr Brown was one of those who remained in touch with him. Mr Brown was in the computer industry in Canberra and he had the sideline of apparently buying up old government computers, re-conditioning them and selling them and he got the accused to sell some of them through the post office at Mathoura. They saw each other regularly; they stayed at each other’s places.

At some time during the period of two weeks after 7 February 1999, the day on which Miss Lock went missing, Mr Brown and the accused went to the Middle Pub in Mathoura. It was called the Pastoral Hotel and Mr Davis was the licensee. There is no dispute that they were both there. There is a lot of dispute about the circumstances in which they were there. One of the things you are going to have to consider is whether things did happen in precisely the way that Mr Brown says.

He says that there was first a drink in the bar, in the public bar or a bar anyway. He had no more than one drink there. They then went in for dinner and they had more to drink for dinner. Then they walked home and then they relaxed at the accused’s house and at various stages of that evening the accused said things to Mr Brown.

About what the accused said to him, Mr Stratton read a portion of Mr Brown’s evidence yesterday and said that it was gobbledygook. I will read a number of passages to you including that one and you remember the evidence of Mr Brown and the manner in which he gave it.

The Crown made a submission to you that you would extract from what he said eleven different things that the accused told Mr Brown. I will come back to them when I have read some passages of evidence to you. I am going to read part of the transcript which follows on from a description that Mr Brown had given about where they were on that evening, going to the pub, going in to dinner, walking home, at the accused’s house. [Page 315] Line 3:

‘Q. On the basis of the conversation you had with the accused that evening, are you able to say what he told you about the physical manner in which Miss Lock met her death.

A. Yes.

Q. What did he say to you?

A. He took Lynette Lock for a drive in the car, drove out to the bush --

Q. Did he tell you where that bush was?

A. He mentioned places and directions but to me they were meaningless. And he asked, he got her out of the car, asked her out of the car, he said she was nervous so he insisted she got out of the car, she got out of the car and that was when he produced the gun, the weapon he had.

Q. Did he tell you what sort of gun that was?

A. Yes, a 9 mm Browning pistol that he had, he then – he said she looked at him in disbelief and that was when he shot her in the abdominal area and then he said she like started to walk towards him and that’s when he shot her again and then she went down and he said he shot her again.

Q. And did he say anything concerning what occurred after she had fallen to the ground?

A. He said a couple of things. He said when she was, that she was a tough bitch, like she took a bullet and she is still coming towards him, he also said he didn’t know if she was coming towards him or trying to get to the sanctuary of the car but she was coming towards him and he said that surprised him and, yeah, he made comment that she was one tough bitch.

Q. And after he had shot her on the third occasion, did he say what occurred next?

A. I recall him telling me that he then dragged the body a long distance from the murder scene, that he was quite surprised that he managed to get the body – getting the body so far away from the murder scene, given his disabilities and then he told me how he like dug a shallow grave, just cleared away the area with his hands and lightly covered the body. I recall that because I was asking some questions about his – yeah --

Q. And over what you told us there were a number of conversations on this evening at various points, when you were speaking with the accused at his home, whereabouts was the conversation occurring?

A. We went towards the back of his property, his property goes back a little way and we got a couple of chairs and were in an almost open area at the back of his property with very little around us, we pulled up a chair each and talked there.

Q. You told us that the accused mentioned the gun that he had used.

A. Mmm Mmm.

Q. Was there anything said concerning where that gun had come from?

A. Nobby told me that he acquired the gun on the black market and that the gun had been returned to the black market for safe keeping until everything had settled down and then we would get the gun back.

Q. Was there any conversation on this evening concerning why he had shot Miss Lock?

A. The why was what we had discussed at the dinner table to some degree but the why wasn’t so important so much, it wasn’t something that was discussed at length, this was something that had happened, later on we discussed how there was [or] how he was feeling as a result of it back at his place.’

Page 316 line 47:

‘Q. Did he tell you how this event had affected him?

A. Yes, yes, he told me it had affected him very much, he was having difficulty sleeping, a difficult time sleeping and he would feel her presence as if she was around and he was finding it very difficult at night and he was a bit scared from that as a result of experiencing that.

Q. Did the accused on that evening seek your advice about any matter?

A. Yes, he sought my advice on what to do.

Q. What – how did he come to seek your advice about what to do? What did he say to you?

A. He said to me, I’m not sure exactly what he said to me to ask my advice, he may have just simply asked what he should do, I don’t recall the conversation leading up to me giving the advice.

Q. Did you give him some advice on this evening?

A. Yes, I did.

Q. What advice did you give him?

A. I told him that to continue on as if, as normal, as if nothing has occurred.

Q. Yes?

A. Don’t act suspicious about it because if you act suspicious about people would wonder why you were so concerned about it, that was the type of advice I gave him. I gave him advice to help him to not get caught, is the advice I was giving him to do for the crime he had committed.’

The conclusions the Crown asks you to draw from that and the other evidence you know about are as follows: The accused asked Miss Lock out for a drive on the morning of 7 February. On the drive he insisted that she get out of the car. He produced a gun. It was a 9 millimetre Browning pistol. He shot her in the abdomen. She started to come towards him and he shot her a second time. She fell and after she fell he shot her a third time. He dragged the body for some distance. He was surprised or pleased at having been able to do that, given his disability. He dug a grave or cleared the ground, cleared debris from the ground with his hands. He had obtained the gun on the black market. The events had affected his sleeping. He sought Brown’s advice on what he should do and Brown advised him to act normally.

Let me go back to the two things that the Crown has to prove in order properly to have you return a verdict of guilty. The first is that the accused did the act causing death. If the account that Mr Brown gave is a reliable one, the accused shot Miss Lock three times with bullets from the 9 millimetre Browning pistol and, as a result of that, she died. If he did that, if you are satisfied beyond reasonable doubt that the accused did that, then he must have done the act causing death.

Secondly, the Crown must prove that when he did the act causing death the accused intended to kill or intended at least to do really serious injury to Miss Lock. In this second element you can only come to a conclusion about the intention of the accused when he fired the shots, if you find that he fired the shots, by inference. You cannot get inside people’s heads and know what they are thinking. You can, however, infer what they must have intended by what they did. If the accused ordered Miss Lock out of the car and shot her three times, you might think that it is not difficult to infer that he intended at least to do her really serious injury and probably to kill her.

Mr Stratton has not made any submissions to you to the effect that, if you do find that this account of Mr Brown is reliable, you cannot be satisfied that the accused had the relevant intent at the time. This is not the ground upon which this case has been fought. I tell you this because I want you to have in mind what I have already told you about the care that you need to take in drawing inferences from proved facts.

Anyway, as I said to you before, the Crown cannot prove its case unless you accept as reliable the evidence of Mr Brown at least insofar as he told you that the accused confessed to him that he shot the deceased three times. If you have a reasonable doubt about that, then you will have to find the accused not guilty.

I said to you during the course of the evidence – it was after one of the witnesses had volunteered some expression of opinion about the accused; I won’t repeat it to you because I don’t want to reinforce it in your minds – that suspicion is not a substitute for proof. You will grant me that there is plenty of suspicion in this case, but that is not enough. The Crown has to prove that the accused said these things to Mr Brown on that occasion at the Middle Hotel, at least insofar as Mr Brown says that the accused told him he shot the deceased.

Now, a number of criticisms have been made about Mr Brown and I am going to come and deal with them. It’s twenty past eleven, I think I will take the morning tea adjournment now but just so that you can understand what is happening, I have drawn your attention now to the central piece of evidence in the case and what I am going to do is go over the rest of the evidence, things which may be argued to support the reliability of Mr Brown’s version of events and things which may be put against the argument for the reliability of that version. And I will try to deal with the issues logically and remind you of the arguments of counsel about them.”

8 After the morning tea adjournment, and after correcting what he had said about Mr Brown leaving the Navy before the appellant, the trial judge said (at pages 29-44):

“Now, the next important piece of evidence from Mr Brown relates to a conversation he says took place on the first weekend of 2000. The accused was in his house. Also present were Mr McKlaren and, of course, Mr Brown’s wife, Kim Brown. Neither Mr McKlaren nor Kim Brown claims to have taken any part in or to have been present at the conversation proper, if I can put it that way They were both there, however, when something began to be said. The evidence of Mr Brown and Mr McKlaren was to the effect that the accused said that some remains had been found in the forest and they were thought to be the remains of Lyn Lock. The evidence of Mr McKlaren and of Mrs Brown is that Mr Brown reacted in a shocked way. Remember the way that he described that? Mr Brown told you he was shocked. He told you then that a conversation ensued between him and the accused. The accused gave evidence about this as well. He says I think that some conversation took place but he says that it was Mr Brown who raised the subject by asking whether remains had been found. Well, that is a matter of fact for you to determine.

Mr Brown said that he was suddenly aware that remains had been found. This was a matter of some significance to him because he had been, he says, keeping that secret to himself al this time. He hadn’t told the police. Brown hadn’t told anybody:

‘… I was aware suddenly that there had been remains found and when I say aware that there had been remains found, then I reacted and wanted to know how long ago.

Q. In what way did you react when you were given that piece of information?

A. I was quite scared and panicked.’

He says the accused also told him that wild animals had got to the remains and there wasn’t much left and they couldn’t find her head.

I need not read to you from the transcript, I don’t think, but the tenor of Mr Brown’s evidence after that was that it became apparent to him that the accused had known for some time that these remains had been found and were thought to be the remains of Miss Lock and yet hadn’t told Mr Brown. Mr Brown said it caused some consternation in his mind. It was the sort of thing he would have expected the accused to tell him given that he had confided this secret in him some eleven months earlier. He said for that reason he was reluctant to go to the police.

I will come in due course to deal with Mr Stratton’s criticisms of Mr Brown but these matters are relevant to those criticisms.

Mr Brown is attacked as an unreliable witness for a number of reasons. One of the things Mr Stratton asks you to take into account is that Mr Brown never went off to the police and told them about this, even though he knew that he was concealing a serious offence or committing some kind of offence of that kind. There was some criminality in his not informing the authorities about what the accused had told him, however precisely that may be described by law. At least Mr Brown knew that.

Mr Brown, you remember, said in the first place he wasn’t going to tell anybody because it would simply be his word against the accused’s word. There was no body, there would be a report, nothing would result, and the accused would know Mr Brown had spilled the beans, betrayed his secret. But then in January the following year Mr Brown did know that there was a body, or at least remains, some hard evidence, yet he still did not go to the police and he didn’t go to the police for another two months. He went, I think, on 11 March, the date of that recorded telephone conversation, and that is relevant to this question of Mr Brown’s honesty and straightforwardness in keeping this matter to himself.

The next body of evidence about Mr Brown concerns the will and what I will call the Browning instructions. It is not the next thing chronologically. I have taken you from the conversation at the pub in February 1999 to the conversation in Canberra in January 2000. We are now going back to the Easter of 1999.

This is at page 318:

‘Q. When did you next see the accused after that conversation?’

And that conversation is the one at the pub in which the accused told Mr Brown he had killed Miss Lock.

‘A. I’m not sure exactly when that was, the next time we saw each other. Steven come to my house around Easter.

Q. When he came to your house at Easter, did he stay with you or just visited?

A. I am pretty confident he stayed a night. Whether that was then, I’m not sure.

Q. When he came to your house did he give you anything?

A. Yes, he did. He, during that period he gave me two pieces of paper.

Q. I show you this document which is marked – can you [tell] me what those two pieces of paper were?

A. One was a will, his will.

Q. What was the second one?

A. The second piece of paper was a cleaning instructions for a 9 mm Browning pistol.’

Well, those documents came into evidence, the copy of the accused’s will is Exhibit T and the instructions for the 9 millimetre Browning are Exhibit O. Both of those documents bear the fingerprints of Mr Brown and of the accused. There seems to be no dispute about that. Both fingerprints on both documents.

Having taken you back to 1999, I will bring you forward now to March 2000. Mr Brown knew that the police were going to call on him. Apparently the reason for that was some report suggesting that he himself had been in Mathoura in a station wagon at the time that the deceased disappeared. It turns out that there was no substance in that report and it is not put forward at this trial as having any credibility but it seems to be the reason why the police wanted to speak to Mr Brown.

That is a matter of some importance, as was apparent from one of Mr Stratton’s submissions yesterday. At any rate, the accused, who was in contact with Mr Brown, told him the police wanted to talk to him, so Mr Brown knew that the police were on their way. When they did come he gave them an account of what happened. However, there was this telephone call of 17 March. You have a transcript of it, it is Exhibit V. After Mr Brown gave an account to the police, that was, of course, enough for the police to arrest the accused and that is what they showed every intention of doing. Mr Brown apparently asked the police whether he could have this telephone conversation with the accused in order to explain to him why he had acted as he had done, and that is his explanation of the meaning of the conversation, a transcript of which is Exhibit V. An issue arises about the meaning of that telephone conversation, and I will come back to that in dealing with the criticisms of Mr Brown.

The last piece of evidence directly relating to Mr Brown is this finding of the three fired cartridge cases on the road beside the pine plantation in the Millewa Forest in March. It is relied on very largely by the Crown as supporting the accuracy and reliability of Mr Brown’s evidence because, the Crown submits, it was not until Mr Brown told the police that the accused had told him that he had shot Miss Lock that the police realised that they were looking for a firearm or signs of shooting or cartridge cases or whatever. The condition of the remains of the body of course gave no clue as to how that person had died.

A very strong attack has been directed by Mr Stratton on the evidence about the searching of the forest. A particularly strong attack was made upon Inspector Dunn who, although he wasn’t apparently the officer in charge of the search, was a senior man who had some responsibility for directing others in what they should do.

You remember that when Mr Stratton opened his case to you at the beginning of the trial he made reference to the finding of the cartridge cases in March and I think he used the word ‘amazing’ and he says, he submits to you that it’s quite a remarkable thing that these cartridge cases were found in March when they were not found in September.

When assessing the reliability of the evidence of a witness you should pay close regard to the demeanour of that witness as you observed the evidence being given and you should weigh the evidence of any witness for what you regard as internal consistency or inconsistency but you are not restricted in that way because you can judge the reliability of a witness by reference to all the evidence in the case and that is a direction which has particular relevance to the evidence of Mr Brown.

The Crown relies on pieces of evidence which it submits are independent of Mr Brown which it submits show that he was telling the truth in his evidence about the accused’s confession.

There are pieces of evidence independent of Mr Brown that Mr Stratton relies on as sufficient, he submits, to raise a reasonable doubt about the reliability of Mr Brown’s account.

But let me deal with the evidence of Mr Brown in relation to the topics that I have so far dealt with. Namely, that the confession – the alleged confession I will call it – of February 1999, the handing over of the will and the Browning document, if that is what happened, the following Easter and the conversation of January 2000 and all the evidence of what Mr Brown did and, just as importantly, what he did not do over the ensuing months.

It might be appropriate to pick up the subject I last mentioned, that is the evidence of the search, evidence of the search in the forest. Mr Stratton, you remember, was addressing you about this yesterday. He criticised very strongly the evidence of Inspector Dunn and it does seem, to use an expression of opinion on the facts, but it does seem that his evidence is not entirely in kilter, if I can put it that way with the evidence of other witnesses who know something about it, for example Mr Fawns, I think, who was from State Emergency Services – anyway a non-police agency who volunteered because he had the experience of using a metal detector. He was handed the metal detector, he assembled it and directed the search. The search took place over 13 and 14 September. It did not include the road, it was confined to the taped area, photographs of which you see in Ex B and an area some – I have forgotten – hundred metres, couple of hundred metres distant, it was some kind of hollow or depression that was searched.

He said that some things were found, nothing of interest, bottle tops and bits of wire. He said he searched on one day only, that was the end of it. Inspector Dunn said that he searched on one day and came back the next day and searched [the] whole area again. I do not think that Mr Dunn mentioned anything about the searching of the depression.

Mr Stratton says you cannot rely on his evidence. Mr Stratton also criticised Mr Dunn and said he was filling in a gap when he made a statement later on some time in 2000 in which he said that the road was not searched with the metal detector in September 1999. Mr Stratton says the only reasonable inference is that Mr Dunn had been told by other police officers that it was necessary to establish that that happened.

You remember, after the accused spoke to the police, Detective Senior Constable Smith was concerned that no search had apparently been carried out for the cartridges and I think he spoke to, it was Detective Smart, yes, spoke to Detective Smart and apparently it was in that way that Detective Smart went back alone in March, swept the road, found the three cartridge cases which you have in evidence.

Mr Stratton’s central submission on this is that the evidence is so suspect that you cannot regard it at all as boosting the evidence of Mr Brown. He says it is unbelievable that so many people searching – and the evidence was quite a lot of people, all available police officers, were called in from Deniliquin, State Emergency people were called in, I think, perhaps forestry people as well, whoever could be brought in was brought in and you had in excess of 21 people searching at any one time.

The search took place over several days, the road was searched. Mr Stratton submitted to you yesterday one half of the broken dentures was found on one side of the road and the other half on the opposite side of the road. They could hardly not have searched the road as well. Mr Stratton invited you in view of his general unreliability to ignore the evidence of Inspector Dunn and he relied upon the evidence of the first officer to give evidence, in fact Constable Watson, who said that as far as she was concerned the whole of the area on both sides of the road were searched and the submission based on that is that you would most certainly have expected the police to find those fired cartridge cases even though they might not have been looking for fired cartridge cases as such during that search, so long and sustained was the search.

So the submission is that there’s something very strange about the way those cartridge cases were not found and then were found. The Crown submission is that they were there all the time. The police didn’t know they were dealing with a shooting in September. The fact that the body, the remains gave no clue about the manner of death. You can accept at face value the evidence about the parts that were searched with the metal detector and those parts did not include the road. The scattering, the dispersal of the fired cartridge cases to the positions in which Detective Smart says they were found in the following March is explained by the evidence of the grading of the road which took place in October, that is between the two dates. They seem to be the submissions on the fired cartridge cases.

I have already touched upon what Mr Brown says was his reason not to report this matter to the authorities. If he is telling the truth he knew about this shooting in February 1999. He gives as a reason for telling nobody about it, the reason that I have already summarised, that if he reported it nothing would result, in his view the accused would not have been arrested, there was no body. It was word against word. The accused would know that he had been betrayed by his friend and there might be trouble for Mr Brown from that quarter.

Then, of course, the remains were found, although they were found in September and Mr Brown didn’t learn about that until January. He says there still wasn’t enough for him to go to the police or at least he puts it this way, that although there was now a body, he believed that the accused had been holding out on him, knowing something, keeping it from him and he wondered about the accused’s motives and that was sufficient reason for him to continue to keep quiet about it.

A strong criticism was made about Mr Brown’s veracity in that claim yesterday in Mr Stratton’s submission to you and you will remember that he said that, whatever you think of Mr Brown, you would not think of him as a reluctant witness, he gave his evidence with some relish. I don’t think they were Mr Stratton’s words but that, I think, summarises the submission. He was rather eager to give his evidence. Well, that’s a submission which you should consider, give it the weight that you consider it deserves, as with all counsel’s submissions and Mr Stratton’s submission to you is that it simply does not explain why, if he is telling the truth, Mr Brown did not go much earlier to the police, certainly by the time he knew that remains suspected to be those of Miss Lock had been found and that is January 2000.

The Crown relies upon the evidence of the will as showing acknowledgement by the accused that he had reposed some weighty serious secret in Mr Brown and that was perhaps something done in acknowledgement of that and of what I will call the Browning document as supporting Mr Brown’s evidence that the accused told him that he had the 9 millimetre pistol, that he had got rid of it for the time being but would recover it in due course and would he look after that document for him.

The response to that is that the accused – and the accused gave evidence about this, that it was not his document, he had not seen it until his legal advisers showed it to him – he could easily have handled the piece of paper in the shed of Mr Brown in Canberra which he frequently visited. In fact whenever he would go there he would go into the shed because that’s where the I T equipment was kept and where the materials relevant to their sideline business were kept. He gave a demonstration in Court – now, it doesn’t really matter what you think of that but it’s pretty obvious really that a person’s fingerprints can be put on a document by a casual handling and the accused says: Well, I remember nothing about this, I could have handled his stationery, he could have used a piece of – Mr Brown could have used a piece of stationery which he knew I had handled or got me to handle it in some other way, it could be easily done and I suppose that that is right, but the question for you is whether that might have happened.

I think no submissions were made to you yesterday about the will but the accused’s evidence about that was: Well why should I not. He made reference, I think, in his evidence to his former wife. I suppose I am allowed to say this: As a matter of law divorce doesn’t bring a will to an end so, if you do get divorced, you need to think about making another will unless you want your former wife to get the estate and that goes for former husbands as well, so that might sufficiently explain why the accused should have been making a will anyway at that time, having had this acrimonious breakup with his wife.

Well, the only question that then remains is the choice of beneficiary. The accused says: Well, why shouldn’t I have left it to him? You would not draw any adverse inference from that fact alone.

To come back again to the topic of Mr Brown’s silence. Mr Stratton submits to you that Mr Brown was not afraid and that is demonstrated by the fact that all the time he was continuing to go back and stay with the accused in Mathoura. You remember the submission yesterday. He could easily have put the accused off and said: ‘Look, I have got to go through Deniliquin.’ That is the kind of submission. Yet Mr Brown and his family on one occasion went back and stayed in the accused’s house. Would Mr Brown do that if he had the kind of fear of the accused that he told you that he had, such a fear that it stopped him from going to the authorities?

That brings us I think to the telephone conversation which is recorded, Exhibit V is the transcript of it. I need now to take you back to something the accused said about this in dealing with the events of February 1999. He said to you in his evidence in clear terms that he had never told Mr Brown that he had killed Lyn Lock and this question and answer appear at page 498 line 29:

‘Q. Have you got any recollection at all of ever saying to Mr Brown at the hotel, ‘I killed Lyn Lock’ or words to that effect?

A. Never, never said those words but one weekend he, when he was there, there was a hell lot of joking and jovial stuff going on and I was joking around and I wasn’t denying the fact some incident happened, no-one knew what it was so I just joked along with them and then as soon as we got to the front door and as we were leaving and he turned to me and said, ‘Well, is that what happened? Did you do it?’ And I just thought, you know, this is my best mate and he is questioning me like this so I turned around and said Yes because nothing else jumped into me head so I said Yes.’

Look at the transcript, Exhibit V, of the telephone conversation of 17 March 2000. The alternative submissions about that are that it contains references to past relations between the accused and Mr Brown, including that version of events which the accused, through Mr Stratton, asks you to accept as reliable. Or whether, as the Crown says, what is really being referred to here is the confidence which the accused unfairly placed in Mr Brown and put him in that difficult position of having to keep quiet about it. They are the alternative submissions.

Of course, it is the telephone conversation between two men who have spoken on many occasions before so you don’t get a precise spelling out of the meaning of what is said. Shorthand is used the way it is between people who speak to each other regularly and know what they are talking about but it is a question of the meanings you get from the conversation.

You heard the alternative submissions about the meaning. The Crown Prosecutor says this supports Mr Brown. Mr Stratton’s submission is that you look at the conversation, it doesn’t bear the meaning contended for by the Crown at all, from first to last pretty it is vague, and insofar as it relates to the specifics, it can be relating to the piece of evidence I have just drawn to your attention.

There are other pieces of evidence that the Crown says support the Crown case generally and make it more likely that Mr Brown is telling you the truth. In particular, the Crown case relies on the evidence of Mr Wellington as supporting what the Crown says in two ways. First, it shows that the accused was in a remote place close to where the body of Miss Lock must have been not long after she was killed. That proximity of time and place and the remoteness of the place and the fact the accused had apparently no reason to be there implies, the Crown says, that the accused knew that the deceased’s body was there.

The Crown uses the evidence in a second way as well because when the accused was asked whether he had been down the Tocumwal Road, he told a lie about it, the Crown says, and I will deal with that topic in due course. Mr Wellington’s evidence is as follows. He and his friend, Mr Goss, had been fishing and he said by reference to the diary page of Mr Goss that went into evidence that it was 12 February 1999, that is the Friday after Miss Lock went missing. He marked the plan of the cemetery, I’m sorry, of the pine forest. I need not show you that. The point is that he and Mr Goss were headed back into Mathoura, they had just put the pine plantation behind them, they were within a kilometre of the pine plantation heading west and this is at page 156, line 36:

‘… After you got back on to the Tocumwal road did you see a vehicle coming in the opposite direction?

A. Yes.’

A little later:

‘Q. When you were approaching that vehicle what sort of vehicle were you in?

A. A silver station wagon.

There seems to have been some misunderstanding:

Q. Was that the vehicle you were in?

A. No, I was in a Mazda brown utility.

Q. The vehicle that you saw approaching, what sort of vehicle was that?

A. A silver station wagon.

Q. Did you recognise that vehicle?

A Yes.

Q. Who owned that vehicle as far as you were concerned?

A. Mr Clark.’

Now, Mr Wellington had lived in Mathoura for years and so by that stage had the accused so they knew each other, and Mr Wellington stated that he recognised the accused’s vehicle.

‘Q. Were you able to recognise who it was that was driving this vehicle?

A. Yes, to the best of my knowledge, yes.

Q. Who do you say was driving that vehicle?

A. Mr Steven Clark.

Q. That is the person who was the post office manager in Mathoura?

A. Yes.’

He said it was about 12 February, in fact as we know it was the 12th. That comes from the evidence of Mr Goss.

You remember Mr Goss didn’t claim to recognise the driver of the car. That evidence comes only from Mr Wellington.”

9 The trial judge then gave a lengthy warning about identification evidence with special reference to Mr Wellington, about the use of lies, and about other supposed instances of the appellant’s consciousness of guilt.

10 At page 55 of the summing up the Crown referred to warnings necessitated by the Evidence Act 1995, s 165(1)(b) and (2), and there was some debate about this.

11 After lunch, the trial judge said (page 57):

“Ladies and gentlemen, a few corrections, I told you just before lunch that the accused’s response to Mr Brown’s evidence about the conversation about the remains being found, the conversation that takes place in Canberra on the first weekend of 2000, was that it was Mr Brown who asked whether any remains had been found. I wasn’t strictly correct about that. What the accused says is that Mr Brown asked what was happening. He didn’t make specific reference to any remains but it was that question which prompted the accused’s response that these remains had been found.

The next thing is that I told you that fingerprints had been found on the will. In fact, the will wasn’t tested for fingerprints. I am sorry, it is not a matter of any consequence I think. The fingerprints are important so far as the Browning instructions are concerned and Mr Brown’s and the accused’s fingerprints were both found on that document but the will wasn’t tested for fingerprints.”

12 The trial judge then returned to issues relating to lies and consciousness of guilt and to evidence about the timing of events on 7 February 1999. The trial judge then said (pages 68-72):

“Let me come now and just summarise the criticisms made about Mr Brown. I have dealt with some of them already and I am just going to deal with these in a summary way.

In cross-examination of him Mr Stratton suggested to him that his story was getting better as time went along. It was suggested, for example, that never before this trial had Mr Brown told anybody that the accused had told him that he had cut off the deceased’s head, and reference was made to two previous occasions when Mr Brown had given an account of these things.

The first was in his statement to the police. The second was in his evidence at the committal proceedings. Before I go on I should say something about committal proceedings. You may not be familiar with the way that criminal trials are brought in this State but you should know this. Accused persons who are sent to the Supreme Court for trial are ordinarily first dealt with by a magistrate sitting in the Local Court. The magistrate conducts an administrative enquiry. It is not a legal proceeding at all. It is an administrative enquiry to see whether the evidence justifies sending the accused for trial. If in the opinion of the magistrate the evidence is sufficient to justify a trial then, as we say, the magistrate commits the accused for trial and this is called a committal proceeding. Obviously in this case the magistrate took the view that there was evidence which justified a trial. But that is all the committal proceedings is and all that it was in this case. The magistrate makes no final determination. The magistrate never considers whether the person he is sending off for trial or she is sending off for trial is guilty. So, you see, the magistrate’s decision to commit cannot bear upon your decision in this trial. It is your decision that matters, not the opinion of a magistrate or anybody else.

At page 372, Mr Brown was being cross-examined on the second day of his evidence:

‘Q. One of the things you said yesterday was that the accused told you back in February 1999 that he had cut the deceased’s head off; remember that?

A. I said --

Q. Remember saying that yesterday?

A. He had, he cut her head off?

Q. That’s what you said yesterday?

A. Yes.

Q. You have never said that before, have you?

A. I have said it in a round about sort of way but I have never said it straight out like that.

Q. What do you mean a round about sort of way?

A. At the time that he told me that was the time I was saying I didn’t want to hear any more, I didn’t want him to tell me any more, I didn’t want to hear any more.

Q. You have not said before the accused told you he had cut the deceased’s head off?

A. I have said before I am quite confident I have said that in the past.’

Well, if he had said that in the past, were there any statements to the police or in his evidence before the magistrate, the Crown would have drawn it to your attention and the Crown did not so you can take it that the first time he mentioned that in terms was at this trial.

The next bit of cross-examination was about his statement about the accused saying that he dug a shallow grave. This is at page 375, line 33:

‘Q. Perhaps if I start the question again. You told us yesterday that Mr Clarke told you back in February 1999 he dug a shallow grave for the body, remember that?

A. Yes.

Q. That is the first time you have told anybody that, isn’t it?

A. Well, they are the words I used. I think he told me what he had done he scraped away the loose covering on the top of the soil or dirt or whatever it was, loose, it was shallow, it’s like, he dug a shallow --

Q. I am suggesting to you when you said that yesterday in evidence that is the first time you have said it?

A. It was discussed at the committal hearing. What did I say then?

Q I am suggesting you did not say that at the committal hearing?

A. I would have said something along similar lines if I did not say those two words ‘shallow grave’.’

Then there was a feature to which I have already drawn your attention this morning and that was that significant parts of this conversation at the pub in February of 1999 were made over a beer, one beer, before the two went into the dining room or the bistro. It was pointed out to Mr Brown that he said to the police that he was affected by alcohol.

All these criticisms of Mr Brown are put to you by Mr Stratton and the submission is that, for one reason or another, his evidence is unreliable. It is suggested that he had more to drink than he says, that he had more to drink than the accused. He says that he was careful about the amount he drank because of the effect it might have upon him.

Attention is drawn to Mr Brown’s smoking marijuana when he got back to the accused’s house and the submission Mr Stratton makes to you is that, bearing all those matters in mind and bearing in mind the way he gave his evidence, you would doubt whether he really was giving an accurate version of whatever it was that the accused said to him that night.

I said I would come back and deal with that little bit of evidence that Mr Stratton read to you yesterday. It is this:

‘Q. As best you recall what was that conversation while you were in the dining room? It had been suggested that something significant was said in the dining room?

A. We talked about, basically went through quickly how and why and how did he do this, like I was a bit surprised and he went through – we – to be honest the detail about what we talked about at different places, exactly where we talked about this and exactly where we talked about that and later on we had other conversations as well, I don’t know exactly what we talked about all the time specifically here did we talk about that, there specifically did we talk about that, I am aware of the conversations we had and sometimes I remember exactly where.’

Mr Stratton’s submission is that it’s an example of the inexactness, if I can put it that way, of Mr Brown’s evidence. It leads you to doubt the accuracy of his evidence.

Mr Stratton said that Mr Brown – he asked you: Has he an ulterior motive? Is he lying or at least exaggerating or is he just confused and it was about that time he read you that passage and he referred then to the alcohol which he submitted you would accept Mr Brown had on that night and the marijuana and he says essentially Mr Brown’s recounting of events is mixed fact and fiction.

He drew attention to the money dispute, the $2000 owing, and to the fine which it was submitted the accused had to pay because of something Mr Brown had done. Of course there are two sides to that story and you know Mr Brown’s version of that and the final submission about Mr Brown was that he was lying or at least exaggerating or confused.

If you think there is substance in this, of course, it doesn’t matter which one or more of those. If you have a reasonable doubt that his evidence is accurate and reliable insofar as he says that the accused told him that he shot the deceased, then that raises a reasonable doubt on the whole of the Crown case and you must find the accused not guilty.”

13 The trial judge then summed up about Mr Winter.

14 When the Court reconvened on Monday 23 April 2001, after the parties had had a weekend to reflect on any deficiencies in the summing up, the trial judge said (pages 80-81):

“I should like to remind you of a few of the important things that I said to you on Friday. The first is that it is for the Crown to prove its case, not for the accused to prove anything. The Crown has to satisfy you beyond reasonable doubt of two things, first that the accused killed Miss Lock, secondly that when he did do so he intended at least to cause her really serious bodily injury, either that or kill her.

I told you that the only evidence that will permit you to come to that conclusion comes from Mr Brown and that you must accept him as reliable, at least insofar as he says to you that the accused confessed to him that he had shot Miss Lock. So you do not have to accept everything Mr Brown says but you must accept beyond reasonable doubt that particular part of his evidence going to what he says is the accused’s confession to him of the shooting on the night that they were in the middle pub in Mathoura.

I also told you that the Crown cannot prove beyond reasonable doubt that the accused shot Miss Lock unless it also proves beyond reasonable doubt that Mr Winter was mistaken in his opinion that the person beside the car beside the Cobb Highway was Miss Lock.

I told you and I remind you that when you are assessing the reliability of any witness, and this refers not only to but particularly to Mr Brown and Mr Winter, you are not restricted to a consideration of the evidence of that witness in isolation but you can and you should assess it by reference to all the evidence in the case.”

The need for leave

15 Counsel for the appellant at the trial was Mr B Stratton QC. He was called to the Bar over thirty years before the trial. He took silk more than fifteen years before the trial. He was a specialist in criminal litigation and an extremely experienced trial lawyer. A reading of the transcript suggests that Mr Stratton conducted the defence with energy, resource and capacity. He did not, however, ask for the warning which, according to Grounds 1 and 2, should have been given by the trial judge. This was despite the fact that the summing up commenced on Friday 20 April 2001, and that the trial judge asked counsel before the morning tea adjournment and before the luncheon adjournment whether further directions were required. Before the morning tea adjournment Mr Stratton noted the factual error about the appellant’s Navy service, and the trial judge corrected it. Before the luncheon adjournment Mr Stratton raised a factual matter with which the trial judge dealt after lunch.

16 Before the jury returned after lunch, while Mr Stratton was submitting that a strong warning about identification evidence was not called for in relation to Mr Winter because he was not an accused person, counsel for the Crown referred to s 165(1)(b) and (2) of the Evidence Act 1995. At the end of the day the trial judge invited further directions from counsel, and none were sought. Nor were any sought on resumption after the weekend on Monday 23 April 2001.

17 It follows that leave is needed pursuant to r 4 of the Criminal Appeal Rules in relation to Grounds 1 and 2. The fact that the warning was not requested is not of itself fatal either to the grant of leave or to the allowing of the appeal. It does, however, point strongly to the view that if so experienced a criminal lawyer as Mr Stratton (or indeed counsel for the Crown) did not think it necessary, the summing up was not defective. Indeed, it points to the view that Mr Stratton either had a particular purpose for deliberately choosing not to ask for a warning, or did not perceive any danger which a warning might alleviate. It is not easy to second-guess such a judgment formed in the thick of the fight by an experienced counsel far more sensitive to the particular forensic environment and the likely reactions of the particular jury than an appellate court could ever be.

The summing up: one criticism

18 Apart from the complaints about a s 165(1)(d) warning set out below, the only written criticism which the appellant made of the summing up was as follows:

“His Honour made reference to the fact that counsel appearing on behalf of the Appellant was critical of the evidence of Mr Brown whom he said was an unreliable witness (page 30). Some reliance was placed upon the fact that Mr Brown never went to the police and told them about his involvement and that he knew he was concealing a serious offence. His Honour directed the jury simply that as Mr Brown did not go to the police until 11 March 2000 was relevant to his honesty and straightforwardness.

It is submitted that this direction did not go far enough.”

19 In fact, as appears from the material quoted from page 30 of the summing up, the trial judge set out both Mr Stratton’s attack on Mr Brown for his delay in going to the police (as he did in several places), and lent the authority of his own office to the posing of critical questions about Mr Brown’s delay. The submission does not identify how much further the direction should have gone than it did. This particular submission about the summing up is rejected.

The summing up: another criticism

20 In oral argument the appellant further submitted that though the trial judge set out Mr Stratton’s criticisms of Mr Brown’s reliability, he never lent the imprimatur of his office to them. He “never went on to explain in general terms why the evidence might be unreliable. He referred to Mr Stratton referring to the evidence as unreliable”. This submission should be rejected. First, the types of direction or warning to which a judicial imprimatur must be lent are usually directions compelled by the rules of law or practice, and comments on the specific evidence in the case are not directions compelled by rules of law or practice. Secondly, for the judge to have lent the imprimatur of his office to Mr Stratton’s criticisms by personally aligning himself with them would probably have verged on an impermissible usurpation of the jury’s function. In the end counsel for the appellant conceded that the trial judge’s specific reference to Mr Stratton’s points was perhaps “in the circumstances … a legitimate way for the points to be made in the circumstances of this trial.”

The appellant’s s 165(1)(d) and (2) submissions

21 The appellant’s submissions about s 165(1)(d) and (2) were put thus:

“Whilst there are therefore a number of examples of His Honour advising the jury that they must be satisfied beyond reasonable doubt as to the confession made by the Appellant to Mr Brown, he referred only to criticism of counsel appearing as to his evidence being unreliable. It is submitted that a warning ought to have been given pursuant to section 165 of the Evidence Act 1995. The evidence of Mr Brown would clearly fall within subsection (1)(d).

The warning sought is in the terms of subsection (2) and indeed may have gone so far as to tell the jury that it would be dangerous to convict the accused on this evidence.

It must be remembered the witness gave evidence about receiving an indemnity that he would not be prosecuted. The indemnity was tendered (Exhibit U) and read to the jury (page 323). The alleged confession was of course totally uncorroborated.

In those circumstances, it is submitted that the jury must have been warned of the danger of convicting upon such evidence in the absence of corroboration but even more so where the witness has been granted an immunity from prosecution and this needs to be clearly explained to a jury (see R v Chai 68 Crim R 305 at 326/327). The judge in his directions to the jury did not bring home to them why such a warning is necessary and why it needs special scrutiny (R v Chai at 327). It is submitted that the reference by the learned trial judge to the effect that counsel representing the Appellant had referred to the evidence as being unreliable is not sufficient (see R v Merrick John Malouf (unreported NSW CCA 1 Nov 1996).

Furthermore on 11 April 2001, His Honour delivered a separate judgment on the admissibility of a transcript (page 386). His Honour allowed the evidence of the tape recording to be played (page 389) in re-examination. In his reasons for judgment this application was made by the Crown pursuant to section 108(3)(b) of the Evidence Act to adduce evidence of a tape recording of a phone call made in March 2000, in which it was said to refer to the conversation at the hotel. That was a possible construction accepted by the trial judge but bearing in mind it was necessary for the defence to suggest to Mr Brown that his evidence was fabricated, if there was to be a defence at all to the case, there was considerable unfairness in this evidence being admitted in re-examination such that it could not be tested by further cross-examination. Under those circumstances, it is submitted that there was even a greater need for a direction under section 165.”

22 There is a problem for the appellant which is anterior to that created by r 4. Section 165 provides:

“(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence:

(a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies,

(b) identification evidence,

(c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like,

(d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding,

(e) evidence given in a criminal proceeding by a witness who is a prison informer,

(f) oral evidence of official questioning of a defendant that is questioning recorded in writing that has not been signed, or otherwise acknowledged in writing, by the defendant,

(g) in a proceeding against the estate of a deceased person – evidence adduced by or on behalf of a person seeking relief in the proceeding that is evidence about a matter about which the deceased person could have given evidence if he or she were alive.

(2) If there is a jury and a party so requests, the judge is to:

(a) warn the jury that the evidence may be unreliable, and

(b) inform the jury of matters that may cause it to be unreliable, and

(c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in giving the warning or information.

(5) This section does not affect any other power of the judge to give a warning to, or to inform, the jury.”

“(1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge:

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or

(b) give a direction relating to the absence of corroboration.”

The test for leave

23 The appellant submitted that leave pursuant to r 4 should be granted because the error complained of, by reason of the significance of Mr Brown’s evidence, went to the “very root of the proceedings”, and if the point could not be raised there “would be a very real possibility of injustice”. He relied on R v Tripodina (1988) 35 A Crim R 183 at 195, where Yeldham J (Carruthers and McInerney JJ concurring) said, after considering numerous authorities:

“Although the court is obliged to be astute to secure for the accused a fair trial according to law, … none the less, in my opinion, it should be astute also to ensure that points, especially those of little or no merit, which were not thought by counsel appearing at the trial to be of any great significance, should not be raised for the first time on appeal. Furthermore, the fact that no objection was taken at the trial is in many cases cogent evidence of the fact that, having regard to the atmosphere at the trial and the manner in which it was conducted, the matter later complained of was not regarded as being of significance, or likely to give rise to any miscarriage of justice. The authorities to which I have referred emphasise that the leave required by r 4 is not to be lightly granted. Generally speaking such leave will only be granted where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.”

192 While the appellant’s statements to the police and to others did not indicate that there was any disagreement, argument or screaming during his drive with the deceased, Mrs Simpson said that the appellant told her on 8 February 1999 that there had been a disagreement and the deceased had screamed to be let out of the car, and Miss Hartley said the appellant told her on 10 February 2000 that there had been a confrontation. Further, the appellant told Mrs Keech that he had got into an argument with the deceased and she had started crying.

193 Another significant piece of evidence is that since the deceased was planning to leave the appellant’s mother’s house on 8 February 1999, and since on the appellant’s version his conversation in the car with her concerned her departure, it is strange, if his version is correct, that she did not tell him she was going to leave on 8 February. He evidently did not appreciate this until some time after he began telling the various witnesses about his version of that car journey. When he learned of her intention, it was too late to change his version to accommodate it – from his point of view unfortunately, since the insertion into his version of that detail would have assisted him in representing the journey as being entirely amicable.

194 There were thus numerous pieces of evidence suggesting that not only did the appellant have a motive to kill, the capacity to kill, and the opportunity to kill, but that his conduct, in seeking to suborn perjury, in lying, and in vacillating between failures of memory and denials, evidenced a consciousness of guilt. To that could be added the appellant’s non-responsive and argumentative approach to answering police questions and, more importantly, giving evidence. It was open to the jury to conclude, and certainly a reading of the transcript now reveals, that there were numerous questionable aspects of the appellant’s testimony. For example, the appellant, before each of his interviews with the police, gave them statements composed by himself offering the exculpatory account of his movements on 7 February 1999 which he advanced in those interviews with the police and in conversations with other witnesses. The appellant was cross-examined to suggest that before his interviews with the police he had learned the contents of the documents as his story, and during the interviews was straining to remember, not what had actually happened, but what he had recorded as having happened. Various demonstrable errors were made in the documents, but not accepted by the appellant in cross-examination. The jury was entitled to regard the appellant’s answers as significantly unsatisfactory.

195 The trial judge’s directions on all of the evidentiary matters described above which he mentioned were impeccable and were not challenged by Mr Stratton or in this appeal. The trial judge also reminded the jury of Mr Stratton’s submission that allowance had to be made for “the impetuous approach [the accused] has to things sometimes because of the disability that he suffers.”

196 If all the above evidence were accepted by the jury, there was an overwhelming case against the appellant. And to reject significant quantities of it would be to conclude that the appellant had been the victim of a most extraordinary combination of misunderstandings and mistakes by others, and indeed to stretch credulity very far.

Mr Brown’s evidence

197 Whatever force the case against the appellant had independently of Mr Brown, it was greatly strengthened by Mr Brown’s testimony that the appellant had confessed guilt to him. There was much to support the correctness of Mr Brown’s evidence.

198 The motives suggested to Mr Brown in cross-examination for lying about the confession were risible. That approach had to be abandoned in any event once the tape recording of the 11 March 2000 conversation was played. There was simply no matter of Mr Brown’s self-interest which could be advanced by him falsely alleging the confession.

199 In the 11 March 2000 telephone conversation, the appellant admitted he used words to Mr Brown which were capable of being understood as a confession, but said that it was a false confession. That was not a proposition which counsel for the appellant had put to Mr Brown while cross-examining Mr Brown.

200 Mr Brown was not cross-examined to suggest that the indemnity had any influence on his mind. The defence accepted that he had no responsibility for the murder.

201 The appellant admitted making a will in favour of Mr Brown and leaving a copy with Mr Brown. It was open to the jury to conclude that the making by the appellant of a will on 8 April 1999 leaving all his estate to Mr Brown confirmed Mr Brown’s evidence that the appellant had confessed, because it operated as an inducement to Mr Brown to remain silent about the confession. The appellant said that he changed his will because the previous beneficiary was his ex-wife, whom he hated: yet it would seem that the marital breakdown and the divorce occurred well before 8 April 1999. The jury may well have been unimpressed with the appellant’s evidence on the point:

“Q. You were divorced a long time before the 8 April 1999, weren’t you?

A. I don’t know. I don’t know when I was married and when I was divorced. You see, those sorts of things, you don’t want to know about them; they just jump out of your mind. I have a hard time keeping things in there. Why keep those things in there? Ask her, I have never struck her either. I have never struck her.”

202 The appellant did not admit that he handed Mr Brown instructions for the use of a Browning pistol. He explained the presence of his fingerprints on that document by saying that Mr Brown must have tricked him into putting his fingerprints on it. That is extremely far fetched. Neither his evidence nor any other evidence explained why Mr Brown would go to those lengths. Since Mr Brown’s evidence was that the will and the Browning instructions were handed to him on the same occasion, the appellant’s acceptance of the fact that he handed over the will tended to confirm Mr Brown’s evidence that the appellant handed over the Browning instructions as well.

203 What Mr Brown told the police led to the discovery of three 9 mm cartridge cases in a place consistent with that described in the alleged confession. Though the defence attacked the police for their conduct of the search, the jury was entitled to accept that the earlier failure to find the cartridges in September 1999 and the subsequent finding of them in March 2000 were bona fide, and to reject any possibility that either Mr Brown or the police placed the cartridge cases beside the road just before they were found. Once those possibilities are left out of account, the discovery of the cartridge cases strongly confirms Mr Brown’s evidence.

204 To some degree Mr Brown’s story was confirmed by the evidence of his wife and his friend Mr McKlaren that he was shocked, startled and surprised when the appellant told him in January 2000 that the deceased’s remains had been found in September 1999.

205 The appellant criticised Mr Brown on the ground that his delays in going to the police were suspicious; that his story changed and improved over time; that his memory was affected by drink and drugs; and that his reliability was affected by the financial disputes between him and the appellant. The jury were, and this Court is, entirely entitled to accept Mr Brown’s explanations about these matters. If the evidence relating to Mr Brown is read as a whole, the jury’s acceptance of Mr Brown in the key elements of his evidence is entirely sound and this Court ought to accept those elements as well.

206 In all the circumstances there is no possibility that the jury could not have accepted Mr Brown even if the direction which it is now claimed should have been given had been given. Hence if the only error in the conduct of the trial related to Mr Brown, the proviso would be applied.

207 When Mr Brown’s evidence is taken with all the other evidence against the appellant apart from the five items of relationship evidence now complained about, the case against the appellant is overwhelming. The appellant would inevitably have been convicted even if the relationship evidence complained about had been rejected. Its admission caused no injustice.

208 In this appeal the appellant submitted in effect that all the evidence was intertwined, and if a proper direction had been given about Mr Brown and the relationship evidence had been excluded, the jury may have acquitted, or there was a possibility that a reasonable jury may have acquitted. That submission is invalid. It pays no attention to the independent force of many items of evidence against the appellant.

209 Accordingly, if it were necessary to do so, the proviso should be applied.

Grounds 5 and 6: sentence

The grounds

210 These grounds are:

“5. In sentencing the prisoner His Honour erred in failing to find that he suffered from intellectual impairments and that the sentence imposed should have been considerably less.

6. Further his intellectual/physical disabilities were sufficient to amount to special circumstances warranting a reduction in the time to be served in custody.”

The appellant’s submissions

211 Ground 5 was in effect abandoned, since no challenge was made to the sixteen year head sentence. Rather it was submitted that a non-parole period of less than three-quarters of the head sentence should have been imposed. It was submitted that the trial judge should have found that there were special circumstances within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. That provides:

“The non-parole period must not be less than three-quarters of the term of the sentence, unless the court decides there are special circumstances for it being less, in which case the court must make a record of its reasons for that decision.”

212 The appellant submitted:

“A number of factors that were accepted by His Honour, it is submitted, would be relevant in this regard and are as follows:

i) As a result of a motor vehicle accident, the Appellant was left with disabilities which were substantial

ii) He suffered a head injury resulting in permanent brain damage

iii) He had left sided weakness (described by Dr Reid as being a left hemiparesis)

iv) Inability to remember details of things (e.g. computer key strokes performed on a regular basis)

v) Alteration of mood

vi) Proneness in making spontaneous, foolish and/or offensive remarks

vii) Inability to form friendship

viii) A level of functioning in the lower average range as opposed to average pre-accident

ix) Inability to think quickly or speak fluently

x) Behaviour which is distractible and inappropriate at times

xi) He should be treated as being equivalent to a first offender

xii) Physical disabilities will make it more difficult for him in custody

xiii) He is denied the full range of activities which is available to most prisoners

xiv) He is not a danger to others upon release

It is submitted that His Honour erred in not finding that there is desirability for the offender to be subjected to an extended period of conditional release. The matters mentioned above would clearly demonstrate that the assistance of some ongoing counselling for the Appellant’s interpersonal affairs and relationships with people generally would be of assistance to him. As a result of his injuries, he had been left very much on his own and with a limited capacity to cope with the pressures of daily living.

It is submitted that by leaving the sentence as it stands but increasing the period on parole, the sentence still reflects the criminality of the offence and does take into account significantly the mental disability suffered by him. With respect, His Honour fell into error in finding that the Appellant simply functions in a low average range rather than suffering from some mental illness or disability (see page 8 paragraph 20). There is no doubt he functions in a low average range but it equally cannot be said he has no mental illness or disability. Very clearly the report of Dr Reid was before His Honour, most of which seems to be accepted, does make it very clear that he has brain damage resulting in disabilities which were in fact accepted by His Honour. Those disabilities were not considered appropriate within the terms of

Letteri

and possibly the decision in

Dean William Wright

(unreported NSW CCA 28 February 1997) where it was pointed out that the extent of knowledge which the offender had of what he was doing and the gravity of his actions might not moderate the sentence on a mentally ill offender.

Accepting these findings, however, it is submitted that in looking at special circumstances different considerations would apply.

The mental disabilities are significant and their effects were not taken into account as were the physical disabilities which will make imprisonment more difficult for the Appellant than other prisoners would mean that the 12 years to serve would be far more difficult because of his physical disabilities and his inability to work within the normal prison system than others.”

213 The appellant relied on R v Letteri (unreported, Court of Criminal Appeal, 18 March 1992) and R v Fahda [1999] NSWCCA 267. These cases were cited to the trial judge, but he distinguished them.

The Crown’s submissions

214 The Crown submitted that the appellant’s difficulties were less than those of Letteri and Fahda. The Crown also submitted that the head sentence was lenient and that to reduce the non-parole period further would make the sentence inadequate.

215 The Crown’s submission that the head sentence was lenient is correct. The facts which the jury must have found in order to arrive at its verdict reveal an extremely serious crime.

The trial judge’s reasoning

216 The trial judge said at the end of his remarks on sentence:

“This is not a case where the offender is suffering from some mental illness or disability the existence of which would make it inappropriate to impose a salutary sentence. Neither does the offender suffer from any severe intellectual handicap. He simply functions in the low average range. There is no impairment of his planning skills or his ability to choose between courses of action. He must have premeditated and planned the death of the deceased. He had to persuade her to go for a drive with him, he had to obtain the firearm and the ammunition and he had to ensure that he could travel to the forest and back and do all that he had to do, covering his tracks as necessary, within a limited period of time.

The offender’s physical disability will make it more difficult for him than for most to serve the custodial part of his sentence and he may be denied the full range of activities available to most within the Corrective Services system. I take that into account. I do not consider that he will be a danger to others when he is released back into the community, because I think that this offence resulted from a peculiar coincidence of circumstances which is not likely to be repeated.

I have considered whether circumstances warrant a period on parole which would require the imposition of a non-parole period less than three-quarters of the sentence I intend to impose, but I do not think that any extended period will be necessary.”

Conclusion

217 The appellant has not demonstrated error in this factual reasoning. In addition to what the trial judge said, it might be noted that despite his condition the appellant had carried on an active life as the owner and operator of small businesses and enterprises. The successful running of a post office in a country town, with the multiplicity of activities which the manager of such an enterprise must carry out, evidences much more capacity than that which counts as showing either mental or physical disability for s 44(2) purposes. The trial judge said, and it is not to be doubted, that he took into account the difficulties which the appellant’s condition would cause in serving the sentence. Nothing said by the appellant has demonstrated that the sentencing discretion miscarried. In particular the overall result is not unjust. Other minds might well have concluded that a longer head sentence was appropriate. The trial judge took into account the difficulties which the appellant’s condition would cause him while serving his sentence, and apparently did so in relation to the head sentence. For this Court to take account of them again in reducing the non-parole period would involve doubling up.

Orders

218 The following orders are proposed:

1. The appeal against conviction is dismissed.

219 DOWD J: I have had the advantage of reading, in draft form, the comprehensive judgment of Heydon JA, and adopt, with respect, the facts that His Honour sets out under the heading Background.

220 I agree with His Honour’s reasons for rejecting grounds 1 and 2, and agree that the grounds should be dismissed.

221 As His Honour has indicated, ground 4 was abandoned, leaving only Ground 3, which is as follows:

“His Honour erred in permitting evidence of the relationship between the deceased and the accused to be given by a number of witnesses”.

222 His Honour then identified in paragraphs 80 to 84 a number of passages from the evidence of five witnesses, which were claimed to be inadmissible.

223 I agree with His Honour in respect of paragraph 80, which dealt with the evidence of Judith Sellars (formerly known as Cooke). In my view, the evidence in paragraph 81 of Mrs Robinson is similarly admissible for the reasons given by His Honour.

224 The evidence of Mr Williams, as set out by His Honour in paragraph 82, that was not objected to, is clearly admissible. I take a different view concerning the passage of the evidence quoted by His Honour that was the subject of objection set out in paragraph 82, namely:

“Q. Apart from saying that Mr Clark wanted her out of the house, did she say anything else?

A. She just said that was scared of him and later on, she mentioned to me later on: “If anything ever happens to me just mention it to the police?’

Q. Mention what to the police?

A. If she disappeared or anything happened to her just to report it to the police because she was scared of him.

Q. Did she tell you what to report to the police?

A. Just that she went missing.

Q. What were you to report to police in that circumstance.

A. Just if she had gone missing, if she had gone missing, or if something strange happens just to report it to the police because it would be something to do with Nobby”.

225 Also, in relation to the evidence of Mrs Williams, as set out by His Honour in paragraph 83:

“Q. What did she say in relation to Mr Clark?

A. Do you want the words?

Q. Yes.

A. She said: ‘That bastard’s going to kill me. What do I do?’

Q. Speak up loudly and slow down.

A. Okay. She said: ‘That bastard’s going to kill me’, and she was very frightened. I told her to go to police.

Q. When you say she was frightened, is that what she told you?

A. Yes.

Q. Or is that an impression you got?

A. Another she said was: ‘I’m shit scared of him’.

Q. Did she say anything to you in relation to where she was living?

A. She had told me previous to that that she was having problems living there and she was hoping to move out she said at that stage with Casso but they hadn’t as yet moved, she hadn’t as yet moved, and Steven was giving her a hard time being there.”

Q. When you spoke with her about visiting Mrs Heil what did she say?

A. I said: ‘I’m going up to see Mum, do you want to come up and see Nolene?’ She said: ‘If I go up there and Nobby finds out he’s going to kill me’”,

“… she was very frightened. I told her to go to the police”,

226 In particular, I consider that the expression as set out in the last answer, namely:

A. I said: ‘I’m going up to see Mum, do you want to come up and see Nolene?’ She said: ‘If I go up there and Nobby finds out he’s going to kill me’”,

227 I have a different view from His Honour about the conversation as set out in paragraph 84 of His Honour’s judgment.

228 I agree with His Honour’s reasons as to the common law and the Evidence Act 1995 (‘the Act’) as set out, with the exception that I would not use the word “discretion” that appears in paragraphs 112, as to using the term with reference to s137 of the Act. As His Honour indicates, s137 of the Act is not a discretion, which is my own view: R v Blick [2000] NSWCCA 61 per Sheller JA.

229 I further agree with His Honour’s reasoning until paragraph 148 dealing with s137 of the Act. I agree with the reasoning of Heydon JA from paragraph 150 down to paragraph 162.

230 I disagree with the reasoning of Heydon JA that the examination under s135 carried out by Barr J necessarily entailed the rejection of Mr Stratton’s s137 submission. The operative words in s135 of the Act are “substantially outweighed by the danger that the evidence might ….. be unfairly prejudicial to a party”. The operative words in s137, which is a weighing process which the Court must carry out as distinct from any discretionary process, and the consequent constraints on a Court exercising that discretion, means that a Court must refuse to admit a Prosecutor’s evidence:

“…. if its probative value is outweighed by the danger of unfair prejudice to the defendant”.

231 It is necessary to look at the probative value of the evidence, and assess if a danger of unfair prejudice outweighs it. This is a very different test to that set out in s135, which requires a substantial outweighing. It is for this reason that some evidence of relationship may be admissible under s135, but in a criminal prosecution, evidence adduced by the Prosecutor will be excluded under s137.

232 I agree with Heydon JA, that His Honour Barr J limited under s136 the way in which the evidence can be used. It is clear law that the law accepts that juries obey directions, and are presumed to do so in a general case. This however cannot be an absolute presumption as some evidence must be of such a prejudicial nature as to create or increase the likelihood of the jury’s impermissible use of the evidence.

233 I agree with His Honour Heydon JA that the fact that the evidence is adverse or favourable to the Crown does not of itself make the word “prejudicial” appropriate. Prejudice means that there is a real risk that the evidence will be misused by the jury in some unfair way: see Papakosmas v R (1999) 196 CLR 297 at [91-93] per McHugh J.

234 I differ from His Honour’s view expressed in paragraph 166 of his draft judgment that the evidence is not significantly more prejudicial than other evidence, and that to exclude the evidence would be to leave the jury with vague and generalised evidence about the appellant’s state of mind, by including specific evidence about it. In my view, almost all relationship evidence is of its nature likely to be distorted and only to create part of a picture of a relationship since it is usually the evidence of what occurs in the presence of third parties or what is said to third parties, and not evidence of either party in the relationship itself.

235 Whatever the relationship, most people conduct themselves privately, differently from the way they conduct themselves in the presence of third parties. In my view, the evidence is significantly more prejudicial, but in this case, in each of the three passages that I have referred to where I differ from His Honour Heydon JA, being that evidence set out in paragraphs 6 and 9 and the indicated part in paragraph 7, the evidence merely reflects the untested state of mind of the deceased without any reasons being ascribed as to that state of mind. Whether that view was reasonable or not at the time cannot be tested, and the evidentiary value therefore is very slight when compared with the danger of unfair prejudice of admitting it.

236 The chance that the jury would use such evidence impermissibly is so high that in my view the danger of unfair prejudice outweighs the limited probative value because of the highly prejudicial language used. I therefore consider Barr J erred in admitting the evidence.

237 There would be cases where such evidence may be admissible to rebut other evidence. This is not, in my view, such a case. I do not therefore agree with paragraph 168 of His Honour Heydon JA’s judgment, and accordingly, I would exclude the evidence to which I have specifically referred, and therefore uphold Ground 3 to the extent of the three passages identified by me above.

Proviso

238 I have however read and agree with the reasoning of His Honour Heydon JA, and the conclusions to which His Honour has come in relation to the proviso, and I agree that even if Ground 3 were upheld as to part or entirely, that the appeal against conviction should be dismissed, and that the application for leave to appeal against sentence should be dismissed.

I agree with the orders proposed by Heydon JA and for the reasons his Honour gives.

**********

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Citations

R v Clark [2001] NSWCCA 494

Most Recent Citation

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Statutory Material Cited

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Cited Sections

CITATION:	R v Clark [2001] NSWCCA 494
FILE NUMBER(S):	CCA 60377/01
HEARING DATE(S):	9 November 2001
JUDGMENT DATE:	13 December 2001
PARTIES :	Regina v Steven John Clark
JUDGMENT OF:	Heydon JA at 1; Dowd J at 219; Bell J at 239

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70076/00
LOWER COURT JUDICIAL OFFICER :	Barr J

COUNSEL :	Mr G E Smith (Crown) Mr C P Heazlewood (Appellant)
SOLICITORS:	S E O'Connor (Crown) Baker Ryrie Rickards Titmarsh (Appellant)
CATCHWORDS:	Criminal Law - Murder - Appeal against conviction - Evidence - Unreliable evidence - Judicial directions to jury - Whether necessity for unreliable evidence warning - Where Crown's major witness testified under indemnity from prosecution - Where no such warning sought at trial - Whether leave should be granted to argue point - Whether witness was "criminally concerned in the events giving rise to the proceeding" - Criminal Appeal Rules, r 4 - Evidence Act 1995 (NSW) s 165 - Criminal Law - Murder - Appeal against conviction - Evidence - "Relationship evidence" - Admissibility - Evidence of contemporaneous representations by deceased demonstrating deceased's negative state of mind about relationship with appellant - Exception to hearsay rule - Whether unfairly prejudicial justifying exclusion - Evidence Act 1995 (NSW), ss 55(1), 72 and 135-137 - Criminal Law - Murder - Appeal against sentence - Whether non-parole period of less than three-quarters of head sentence warranted - Whether appellant's intellectual/physical difficulties amounted to "special circumstances" - Crimes (Sentencing Procedure) Act 1999, s 44(2) - D
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW)
CASES CITED:	Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 B v R (1992) 175 CLR 599 R v Bedingfield (1879) 14 Cox CC 431 R v Blick [2000] NSWCCA 61 R v Booth [1982] 2 NSWLR 847 R v Carranceja (1989) 42 A Crim R 402 R v Chai (1992) 27 NSWLR 153 R v Checconi (1988) 34 A Crim R 160 Davies v Director of Public Prosecutions [1954] AC 378 R v Fahda [1999] NSWCCA 267 R v Farler (1837) 8 C & P 106 R v Fraser (NSWCCA, 10 August 1998) R v Frawley (1993) 69 A Crim R 208 R v Fulcher [1995] 2 Cr App R 251 R v Garner (1963) 81 WN (Pt 1) (NSW) 120 Gipp v R (1998) 194 CLR 106 Glennon v R (1994) 119 ALR 706 R v Gratton (1971) 4 NBR (2d) 14 R v Heath [1991] 2 Qd R 182 R v Hissey (1973) 6 SASR 280 R v Iuliano [1971] VR 412 Kailis v R (1999) 21 WAR 100 Khan v R [1971] WAR 44 R v Letteri (unreported, Court of Criminal Appeal, 18 March 1992) R v Lewis (1906) 8 WALR 83 R v Ling (1982) 6 A Crim R 429 McNee v Kay [1953] VLR 520 R v MM (2000) 112 A Crim R 519 KRM v R (2001) 178 ALR 385 Majara v R [1954] AC 235 R v Mason (1869) 5 Aust Digest 881-2 R v Ncanana 1948 (4) SA 399 O'Leary v R (1946) 73 CLR 566 Papakosmas v R (1999) 196 CLR 297 R v Peake (1996) 67 SASR 297 Pearmine v R [1988] WAR 315 R v Perry [1970] 2 NSWR 501 R v Pipe (1966) 51 Cr App R 17 Plomp v R (1963) 110 CLR 234 R v Ready [1942] VLR 85 R v Robichaud (1938) 13 MPR 22 R v S [2000] 1 Qd R 445 R v Sawoniuk [2000] 2 Cr App R 220 Shaw v R (1952) 85 CLR 365 Singleton v Ffrench (1986) 5 NSWLR 425 R v Sneesby [1951] Qd R 26 R v Stewart [2001] NSWCA 260 R v Tevendale [1955] VLR 95 R v Toki (2000) 116 A Crim R 536 R v Tripodina (1988) 35 A Crim R 183 R v Tsingopoulos [1964] VR R v Vollmer [1996] 1 VR 95 Wilson v R (1970) 123 CLR 334 R v Wozniak (1988) 16 NSWLR 185
DECISION:	The appeal against conviction is dismissed; the application for leave to appeal against sentence is dismissed