R v Lewis

Case [2001] NSWCCA 448

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      R. v. Mark LEWIS [2001]  NSWCCA 448

FILE NUMBER(S):
60724/99

HEARING DATE(S):               23 October 2001

JUDGMENT DATE: 09/11/2001

PARTIES:
Regina - respondent
Mark Lewis - appellant

JUDGMENT OF:       Hodgson JA Barr J Greg James J   

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S):          70075/97

LOWER COURT JUDICIAL OFFICER:     Ireland J

COUNSEL:
Mr. P. Boulton for appellant
Mr. P. Berman SC for Crown

SOLICITORS:
Joanne Harris for appellant
S.E. O'Connor for Crown

CATCHWORDS:
CRIMINAL LAW - Murder - Appeal against conviction - Whether verdict unreasonable - Appeal against sentence - Life sentence - Whether aggravating feature that appellant knew the victim's death would deprive five children of their mother.  D.

LEGISLATION CITED:
Crimes (Sentencing Procedure) Act 1991, s.61

DECISION:
See par.72 of judgment

JUDGMENT:

IN THE SUPREME COURT  

OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

CCA 60724/99

HODGSON JA
BARR J
GREG JAMES J

Friday 9th November 2001.

R.  v.  Mark LEWIS
Judgment

  1. HODGSON JA::  On 19th November 1999, after a trial lasting fourteen days, the appellant Mark Lewis was found guilty by a jury on two charges:  first, that on 14th February 1994 at Gladesville in the State of New South Wales he did murder Kerrie Pang; and second, that on 14th February 1994 at Gladesville in the State of New South Wales he did murder Fatma Ozonal. 

  2. The appellant was sentenced on 9th June 2000.  For the murder of Kerrie Pang, he was sentenced to life imprisonment.  For the murder of Fatma Ozonal, he was sentenced to eighteen years imprisonment, commencing on 28th April 1999 and expiring on 27th April 2017.  A non-publication order was made to protect the identity of the son of the appellant and Ms. Pang. 

  3. The appellant appeals from his conviction, and seeks leave to appeal from the sentence. 

  4. The Crown case was that the appellant participated in a joint criminal enterprise with Lindsay Rose to murder the appellant’s de facto Ms. Pang, in the course of which Ms. Ozonal was also murdered.  The Crown case was that there was a third participant in the enterprise, namely Ronald Waters, who assisted Rose to obtain access to the premises where Ms. Pang was murdered.

  5. Before considering the case on appeal, it is convenient to first outline the circumstances clearly established by evidence at the trial. 

    CIRCUMSTANCES CLEARLY ESTABLISHED

  6. The deceased Kerrie Pang had been the appellant’s de facto for three to four years before her murder.  The appellant and Ms. Pang had a fifteen month old son; and Ms. Pang also had four sons from previous relationships.  The appellant and Ms. Pang were living together in a rented house in Cherrybrook. 

  7. On the basis of the appellant’s own statements to police and of evidence which was substantially unchallenged at the trial and on appeal, the following events occurred on 14th February 1994.  The timing of the events was firmly established by records of telephone communications from and to the mobile phone of Ms. Pang. 

  8. At…

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AGLC
R v Lewis [2001] NSWCCA 448
Case
[2001] NSWCCA 448
Decision Date

CaseChat Overview and Summary

The case of R v Lewis involves the appellant's appeal against his conviction and sentence for murder. The appellant was convicted of being an accessory after the fact to the murders of Ms. Pang and Ms. Ozonal, and was sentenced to eighteen months imprisonment. The central legal issues addressed by the court were whether the verdict was unreasonable and whether there was an aggravating feature that the appellant knew the victim's death would deprive five children of their mother. The court examined the admissibility of certain evidence, the reliability of the key witness's testimony, and the appellant's submissions regarding the improbability of the Crown's case against him.

The court found that the evidence concerning a.22 rifle found in the appellant's van, forensic evidence linking the rifle to the crime scene, and blood stains matching Ms. Pang's DNA on the rifle bag were admissible and relevant to the case. The court also considered the volatile relationship between the appellant and Ms. Pang, as well as evidence suggesting the appellant was not typically violent. The court held that the trial judge's directions regarding the admissibility of hearsay evidence were appropriate, and that there was no basis for ordering a new trial based on the appellant's submissions. The court further found that the appellant's arguments regarding the unreliability of the key witness's evidence and the improbability of the Crown's case were matters for the jury to consider, and that the jury's verdict should not be set aside unless it was unreasonable.

Ultimately, the court determined that the verdict was not unreasonable, and that the appellant's sentence was appropriate given the circumstances of the case. The court upheld the conviction and sentence, finding that the evidence presented at trial was sufficient to satisfy the jury beyond reasonable doubt that the appellant was guilty of being an accessory after the fact to the murders. The court further found that the aggravating feature of the appellant knowing that the victim's death would deprive five children of their mother was a valid consideration in determining the sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Ronald Waters was charged with the murders of Ms. Pang and Ms. Ozonal. On 7th May 1999, he pleaded guilty to two counts of being an accessory after the fact to the murders, and was sentenced to concurrent terms of eighteen months imprisonment, to be served by way of periodic detention. The murder charges were not pursued. OTHER EVIDENCE AT THE TRIAL There was police evidence that a .22 rifle in a burgundy bag was found inside the appellant’s Tarago van. There was forensic evidence that eight shots fired in Kerrie’s Oasis came from the same .22 weapon, which was not the weapon found in the appellant’s van. There was forensic evidence concerning blood stains found on the rifle bag: some of these matched Ms. Pang’s grouping, and also Ms. Pang’s DNA. There was a blood stain inside the bag that did not match Ms. Pang’s blood or the appellant’s blood. There was evidence of small brown spots on the appellant’s right running shoe, brown shorts, and shirt worn that night. In relation to these spots, the preliminary or screening test for blood was positive, although the spots could, on the basis of that test, also be from a chemical or protein source. DNA matching that of Ms. Pang was found on these items, although it could have been DNA from skin cells, sweat or saliva rather than from blood. A number of witnesses called for the prosecution testified that the relationship between the appellant and Ms. Pang was volatile, and characterised by jealousy and arguments. One witness gave evidence that, three days before her death, Ms. Pang told her that she wanted out of the relationship with the appellant, and was asking him to pay $500.00 per week for a nanny for their son. However, evidence was called for the appellant about the relationship, including evidence that Ms. Pang said to a witness, about a week before her death, that she loved the appellant “with all his faults”; that the appellant was never observed to be a violent or threatening man; and that on 5th November 1993, Ms. Pang consulted a gynaecologist about attempts to have another baby. There was also evidence that Rose and Ms. Pang had been in a relationship, prior to Ms. Pang’s relationship with the appellant; and evidence that Rose hated Ms. Pang. The appellant did not give evidence at the trial. Rose did not give evidence. The murder weapon and the knife used to stab Ms. Pang were not produced in evidence. A crucial witness for the prosecution was Waters, who gave the following evidence. He gave evidence of accompanying Rose, with whom he was acquainted, to the premises at 4 Flagstaff Street, Gladesville on 14th February 1994. The role Waters was to play was to present himself at the door of the premises and speak to the person who answered the door, in order to gain access for both men to the premises. Rose offered Waters $500.00 to perform this role. They met at the Burwood RSL at around 6.00pm on that day, although the meeting was not pre-arranged. Rose asked Waters if he would help him out, and Waters agreed. They went from the RSL to Rose’s home, where they got into Rose’s vehicle and drove to Gladesville. Rose spoke to someone on his mobile phone during the drive.

Decision

Reasons for decision

Finally, in his written submissions Mr. Lewis submitted that the statement which, according to Waters, Rose made to the effect that “he is paying for it” was hearsay. Decision Dealing first with the last submission, I note first that Mr. Lewis was represented by Senior Counsel at his trial, and no objection was taken to the piece of evidence referred to on the ground of hearsay, and no complaint was made about the trial judge’s directions concerning that matter. In my opinion, the evidence about Rose’s alleged statement was plainly admissible as part of the narrative of the events of the murders themselves, and the activities of Rose and Waters and the third man in relation to those events. In those circumstances, ss.60 and 136 of the Evidence Act became relevant. Those sections are as follows:60 The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation…136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing. The effect of s.60 is that the statement alleged to have been made by Rose did become evidence of what Rose had intended to assert, unless an order was made under s.136 limiting the effect which could be given to the statement. No application was made for any order under s.136. In those circumstances, the admission and treatment of that material does not give a ground of appeal. Some of Mr. Lewis’ submission seem to be to the effect that he would wish to have a trial in which further evidence could be led. That can be the basis for setting aside a conviction and ordering a new trial only if it is required in the interests of justice, because there is evidence which could well have made a difference to the result and in respect of which there is a satisfactory explanation why that evidence was not called. We have been shown no reason to think that evidence which Rose could have given would have made a difference to the result, nor that evidence concerning the murder weapon would have made any difference to the result. Furthermore, the circumstance that legal advisers representing an accused made forensic decisions in the course of a trial with the result that evidence was not called does not justify an appeal court ordering a new trial. The submissions made by Mr. Lewis concerning the improbability of the Crown case against him were matters appropriate to be put to the jury, and for the most part, were put to the jury. I take them into account in relation to the appellant’s submission that the verdict was unreasonable, in conjunction with his submissions concerning the unreliability of Waters’ evidence. In my opinion, the real question is whether, having regard to all the matters raised by Mr. Lewis, Waters’ account of the murders and of the role of the third person in them should have been accepted by the jury, so as to satisfy them beyond reasonable doubt that this third person was guilty of the murders.

Ratio Decidendi

Legal Principle Established

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