R v Early (No 6)

[2023] NSWSC 581

Supreme Court

New South Wales

Medium Neutral Citation:

R v Early (No 6) [2023] NSWSC 581

Hearing dates:

24 May 2023

Date of orders:

24 May 2023

Decision date:

30 May 2023

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

Application Refused

Catchwords:

CRIMINAL LAW — Evidence — Murder trial — Where Crown case relies upon circumstantial evidence as well as alleged admissions — “Flight” going to consciousness of guilt — Accused travelled to Queensland shortly after deceased’s body was discovered — Where the accused told his landlord he was travelling to Queensland but that he would return — Where the accused paid one week’s rent in advance — Whether the evidence is capable of constituting evidence of flight demonstrating a consciousness of guilt — Application by the Crown to rely on the evidence as consciousness of guilt refused

Cases Cited:

R v Cook [2004] NSWCCA 52

Category:

Procedural rulings

Parties:

Stanley Bruce Early (Accused)
Rex (Crown)

Representation:

Counsel:

J Clarke (Accused)
K McKay SC (Crown)

Solicitors:

Schumer Lawyers (Accused)
Office of the Director of Public Prosecutions (Crown)

File Number(s):

2021/00174129

JUDGMENT

1. Stanley Bruce Early, the accused, has pleaded not guilty to one count that he, on or about 13 January 1987, in Randwick in the State of New South Wales, did murder Raymond Frederick Keam.

2. The trial commenced on 1 May 2023, with the jury being empanelled on 2 May 2023. The Crown foreshadowed, although did not open on, evidence of “flight” relevant to consciousness of guilt reasoning.

3. The Crown case is that at some time between midnight and 6:00am on 13 January 1987, Mr Keam was assaulted. It is the Crown case that it was the accused who either assaulted Mr Keam, or else was part of a group who assaulted him, causing his death. At approximately 6:06am, Mr Keam was found deceased in Alison Park, Randwick. There were scuff marks on his trouser legs just below the knees. There was also dirt and stains on the t-shirt he was wearing. One of his trouser pockets was turned out and the only personal item he had on him was a small plastic comb. Mr Keam’s “Datsun 180B” was found parked on Francis Street, at the northern end of the park. Missing from Mr Keam’s possession were his keys.

4. A post-mortem examination was completed following the death of Mr Keam. A review of the post-mortem and evidence was conducted by a forensic pathologist in 2021. It was determined that Mr Keam died due to a subarachnoid haemorrhage, most likely caused by an impact to the face, side of the head, or neck. Mr Keam was struck a number of times to the side of his face, the right side of his neck, back, and mouth. It is likely that he then fell, causing further injuries to the back of his head. There were also significant blunt trauma injuries to his upper chest and sternum, causing a rib fracture. This fracture occurred before he died. The Crown allege that some of the injuries to his chest were consistent with being caused by the sole of a shoe.

5. The Crown case is in part a circumstantial case. The Crown also relies upon alleged admissions made by the accused to Barry Sutton and Tom Brown.

6. At the commencement of the trial, the Crown foreshadowed that evidence would be adduced that the accused travelled to Bundaberg, Queensland, immediately upon Mr Keam’s body being found in Alison Park. He stayed with his brother, Barry Sutton, for some days before returning to his unit in Randwick. The Crown indicated that Barry Sutton would be called to give evidence about the accused’s visit and conversations they had while he was present. The Crown also foreshadowed calling the accused’s landlord, Mr Rolland, to give evidence about a conversation he had with the accused relating to his travel to Queensland.

7. Mr Clarke, on behalf of the accused, did not object to this evidence being adduced. The issue is whether the evidence can be relied upon by the Crown as “flight”, going to consciousness of guilt. The parties were content to leave that issue for determination prior to closing addresses. On 24 May 2023, I ruled that the evidence could not be relied upon as consciousness of guilt. These are my reasons.

The Evidence

8. The evidence of Barry Sutton, which is relied upon by the Crown to constitute consciousness of guilt, can be summarised as follows. Mr Sutton stated that Mr Early had “just come up” ^[1] to North Bundaberg. The accused told him he had been in “a bit of a blue” ^[2] in the park across the road to where he was living. Barry Sutton understood that the accused lived in Bondi. ^[3]

   1. Tcpt, 19 May 2023, p 870(20)–(23).

   2. Ibid p 870(22).

   3. Ibid p 870(32)–(35).

9. The reference to a “blue in the park” did not include any detail as to who the “blue” was with or when it occurred. In the context of this trial, where the Crown has called numerous witnesses to testify of the accused’s tendency to assault homosexual men in Alison Park on multiple occasions in 1986, the reference to a “blue in the park” has little probative value.

10. Mr Rolland gave evidence that the accused told him that he was travelling to Queensland and would return. The accused paid a week of rent in advance. Mr Rolland stated that the accused said that he was travelling to Queensland because the police thought he was a suspect. There is no dispute that the accused did return to his rented premises after spending a few days in Bundaberg with his brother.

11. The Crown relies upon the timing of the accused’s travel to Queensland, namely, upon the discovery of Mr Keam’s body in Alison Park, as evidence from which the jury could infer that the accused travelled to Queensland to flee the jurisdiction, evidencing a consciousness of guilt on his part about the killing of Mr Keam.

Consideration

12. The applicable principles are well-settled and not in dispute on this application. The relevant principles were summarised by Simpson J in R v Cook [2004] NSWCCA 52 (“Cook”) at [50], where her Honour said that the principles of law applicable to directions where the Crown relies upon evidence of flight as evidence of consciousness of guilt, are identical to those which govern the directions to be given to a jury where lies are relied upon as such evidence. Clearly, the directions require a degree of adaptation in order to accommodate evidence of flight.

13. There are two separate issues which arise where the Crown seeks to rely on such evidence. The first goes to the admission of the evidence. The second is whether it constitutes, or is capable of constituting, evidence from which a jury can engage in consciousness of guilt reasoning.

14. In this case, there was no objection to the admission of the evidence, but rather whether the Crown could rely upon the evidence as flight demonstrating a consciousness of guilt.

15. Where evidence of flight is capable of meeting the five conditions outlined in Cook, it will be a matter for the jury, properly directed, to determine whether the evidence constitutes consciousness of guilt.

16. I am not satisfied that the accused travelling to Queensland, where he remained with his brother for a few days, is evidence from which a jury may legitimately infer a consciousness of guilt on the part of the accused for the offence charged, or the alternative count of manslaughter.

17. It is undisputed that prior to the accused’s travel to Queensland, he told his landlord that he would be back, and that he paid a week’s rent in advance. His clear intention was to return to his premises, where all of his belongings remained. This is not a case where the accused travelled to Queensland upon the deceased’s body being located, and later decided to return to his premises.

18. Instead, the evidence clearly establishes that the accused, before travelling to Queensland, intended to return to his premises and did so. In these circumstances, the jury could not legitimately reason that the accused travelled to Queensland with an intention to flee the jurisdiction so as to avoid arrest and/or prosecution.

19. Accordingly, I refuse the Crown’s application to rely upon the evidence as flight demonstrating a consciousness of guilt.

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Endnotes

Decision last updated: 14 June 2023