R v Serratore

Case [2001] NSWCCA 123

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION:     R v Serratore [2001]  NSWCCA 123

FILE NUMBER(S):
60422/00

HEARING DATE(S): 29 January 2001
30 January 2001

JUDGMENT DATE:    06/04/2001

PARTIES:
Regina
John Serratore

JUDGMENT OF:        Beazley JA Grove J Whealy J   

LOWER COURT JURISDICTION:    Supreme Court

LOWER COURT FILE NUMBER(S):             70018/96

LOWER COURT JUDICIAL OFFICER:        Kirby J

COUNSEL:
Appellant: R Toner SC/S Walsh
Crown:      M Grogan

SOLICITORS:
Appellant: Macedone Christie Willis
Crown:       S E O'Connor

CATCHWORDS:
Murder
Method of indictment
Single indictment
Evidence of intention
Verdict unreasonable or unsupported by the evidence

LEGISLATION CITED:
Crimes Act 1900 (NSW) s 18
Evidence Act 1995 (NSW) ss 72, 136

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA        60422/00

BEAZLEY JA
  GROVE J
  WHEALY J

Friday, 6 April 2001

REGINA v John SERRATORE

FACTS

The appellant was indicted on a single count of murder.  The Crown case was that the appellant either murdered the deceased himself, aided and abetted another person who caused the death or procured another person to kill her.  He was found guilty by a jury of 12.

The appellant had been found guilty at an earlier trial but his conviction was quashed on appeal and a new trial ordered: R v Serratore [1999] NSWCCA 377.

HELD on appeal against the verdict in the second trial

per Beazley JA (Grove and Whealy JJ agreeing)

(i) The question of whether charging the appellant with a single count of murder where three different modes of involvement were alleged had been determined by the Court of Criminal Appeal in the appeal from the first trial.  Leave should not be granted to re-litigate the question: R v Serratore [1999] NSWCCA 377; Burt v Barry & Roberts, Ex parte Barry & Roberts [1956] QSR 207; State Government Insurance Commission v Clift (1990) 54 SASR 52; Jacobs v London County Council [1950] AC 361.

(ii) The trial judge correctly admitted evidence of conversations between the appellant and a witness whom he had requested to assist him to kill the deceased five months prior to her death as evidence of intention: R v O’Leary (1946) 73 CLR 566; R v Adam (1999) 106 A Crim R 510; R v Player [2000] NSWCCA 123.

(iii) The evidence was sufficient to support a conviction.  Indeed, the fibre evidence of which complaint was made, in particular expert evidence that fibres found on the deceased’s boots had come from the appellant’s vehicle pointed overwhelmingly to the appellant’s guilt: M v The Queen (1994) 181 CLR 487; Jones v R (1997) 191 CLR 439; Hocking v Bell (1945) 71 CLR 430; R v Pantoja (1996) 88 A Crim R 554.

ORDERS

Appeal dismissed

IN THE COURT OF

CRIMINAL APPEAL

CCA        60422/00

BEAZLEY JA
  GROVE J
  WHEALY J

Friday, 6 April 2001

REGINA v John SERRATORE

JUDGMENT

BEAZLEY JA:     Introduction

  1. The appellant appeals against his conviction for the murder of Frances Tizzone.

  2. Ms Tizzone, a 20 year old university student who lived…

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AGLC
R v Serratore [2001] NSWCCA 123
Case
[2001] NSWCCA 123
Decision Date

CaseChat Overview and Summary

The case of R v Serratore involved the appellant being charged with the murder of the deceased. The central dispute was whether the appellant had the requisite intention to commit murder, as well as whether the evidence was sufficient to support the jury's verdict. The High Court of Australia was tasked with reviewing the legal issues surrounding the appellant’s conviction and the sufficiency of the evidence presented.

The primary legal issues revolved around whether the Crown had adequately proven the appellant's intent to kill the deceased, and if the jury's verdict was unreasonable or unsupported by the evidence. Specifically, the court examined the appellant’s conversations with Bassam Radwan, where the appellant allegedly sought help to kill the deceased. Additionally, the court scrutinized the evidence regarding the transfer and persistence of fibres found on the deceased’s boots, which were critical to linking the appellant to the crime scene.

The High Court held that the Crown had sufficiently established the appellant's intent to kill through the evidence provided by Radwan. The court found that Radwan’s testimony, which detailed the appellant’s persistent requests for assistance in murdering the deceased, was credible and corroborated by other evidence. Regarding the fibres, the court determined that the presence of a sticky substance did not necessarily undermine the Crown's case that the fibres had adhered to the boots shortly before the deceased’s death. The court concluded that the evidence was adequate to support the jury's verdict of guilt.

The High Court upheld the appellant's conviction, finding that the Crown had met its burden of proof and that the jury's verdict was reasonable and supported by the evidence. The court dismissed the grounds of appeal related to the sufficiency of the evidence and the appellant’s intent to commit murder.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It follows that, in my opinion, leave to argue grounds 6, 7 and 7A should be refused. Alternatively, these grounds should be rejected. Grounds 1 and 2: Evidence of Bassam Radwan The deceased’s family and other witnesses gave evidence that over nearly the whole of 1994, but particularly in the second half, the deceased had expressed a wish to terminate her relationship with the appellant and that over that time, he had become abusive and violent towards her. On 7 November, the deceased and her family called in the police after the appellant had once again come to their home and acted abusively towards the deceased as well as towards Mr Tizzone. Mr Bassam Radwan, a former school friend of the appellant, with whom he had resumed his acquaintance in the latter part of 1994, gave evidence about a series of conversations he said he had with the appellant, particularly in late October and early November 1994 (the November conversations) concerning his relationship with the deceased, in which the appellant asked Radwan to help him kill her. The most significant conversation occurred on 8 November. At this time the appellant had been coming to Radwan’s house about three times a week. The appellant had told Radwan that he was depressed about his personal life and that his relationship with the deceased “wasn’t so good”. Initially the appellant had told Radwan that he wanted to hurt Mrs Tizzone as she had been “interfering with his relationship”. However, by 8 November the appellant’s comments were directed towards the deceased. Radwan said the appellant had “wanted me to help him kill her … he wanted her to overdose on pills … to get her back … [f]or what she did to him”. Radwan said the appellant had outlined a plan to give himself an alibi. Radwan’s evidence continued:“At first he said, ‘Tomorrow morning [the deceased] will be going to university and on the way to university she’ll be dropping her mother off at work and leaving to go to the university. Where she drops her mother off at work there’s a roundabout’ and he asked me when she approaches the roundabout to hop in the car with her and drive somewhere down the road and try and convince her - he said she’ll get scared of me and do what I say because she’ll be scared of me and he said, ‘You make her scared and make sure she swallows the tablets and write out a note’.…Q You told him, ‘No way’; in other words, you weren’t going to do it?A Yes. Radwan said that the appellant kept trying to persuade him to commit the murder, asking him “at least a hundred times” to help him and wondering where he could get some pills to give to the deceased. Radwan’s evidence was that he had refused to help the appellant, telling him that he would not let him “ruin [himself] … over a girl”. However the appellant persisted:“A He just kept on trying to convince me and I kept on trying to talk him out of it, trying to reason with him, tell him, ‘I’m not going to do it’ and tell him, ‘It’s not worth it’ and try and make him see.Q What happened then?A He just got more and more frustrated.…A And desperate, yeah.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The appellant’s submission, that the Crown failed to address the proposition that the weight of the evidence was such that it was probable the black fibres came from more than one source, is, therefore, untenable. There was an abundance of evidence which addressed the issue.Likely Duration of Adherence of Fibres to Boots It was the Crown case that the CRX carpet fibres had transferred to the deceased’s boots a short time before her death and that there would have been minimal ground contact with the boots after the fibres were transferred. The appellant’s challenge on this issue was twofold. First, it was said that the fibres were coated with a sticky substance which meant they were likely to have been stuck on the sole for some period of time. Secondly, it was submitted that there was evidence that on the right shoe some fibres were caught in striations on the sole, that the fibres had got onto the shoe prior to the striations being caused and could have been there for a considerable period of time. The first part of this challenge arose because a substance coating at least some of the fibres had been observed in photographs of the fibre. Mr Flynn (Flynn), a chartered chemist and manager of the University Analytical Laboratory at the University of New South Wales and was retained to identify the nature of the substance. His laboratory was provided with a number of fibres found on the deceased’s boots. An analysis carried out on one of the fibres revealed that there was a substance adhering to the fibre which was consistent with lignin. Lignin is a plant sap and is sticky, having been described in the evidence as “nature’s glue”. Senior counsel for the appellant contended that Flynn’s evidence was unchallenged, un-met and threw doubt on the Crown case that the fibres transferred to the deceased’s boots from the CRX a short time before she was deposited where her body was found. It was submitted that having regard to the presence of the lignin, it was more likely that the fibres were ‘stuck’ to the boots and could have been there for any period of time - weeks, months or years. There was certainly general acceptance amongst the experts that the presence of a sticky substance might affect the degree of persistence of fibres to the surface to which they transferred. That would seem to be a matter of common sense. However, Flynn’s evidence did not necessarily advance the appellant’s case or throw doubt on the Crown case. In the first place, although tests were carried out on a number of fibres, only one was identified as being coated with lignin. Secondly, Flynn did not analyse that fibre nor did he know what it was. Waight was emphatic that the fibre identified by Flynn was not polyester or polypropylene but was either cotton or rayon. Waight’s evidence was not met in any way in the appellant’s case. In short, Flynn’s evidence only established that there was one fibre, which was not or may not have been a CRX carpet fibre and which was coated with a sticky substance that was likely to have been lignin. That could not be said to demonstrate such fragility in the Crown case on this point to require the jury to have had a reasonable doubt as to the Crown’s case that the fibres had only been adhering for a short period before the deceased’s body was dumped by the roadside.