R v Serratore

[1999] NSWCCA 377

Reported Decision: 48 NSWLR 101

New South Wales

Court of Criminal Appeal

CITATION:	R v Serratore [1999] NSWCCA 377 revised - 01/12/99
FILE NUMBER(S):	CCA 60675/98
HEARING DATE(S):	21 May, 24-25 June 1999
JUDGMENT DATE:	26 November 1999
PARTIES :	John Serratore (Appellant) Regina (Respondent)
JUDGMENT OF:	Dunford J at 1; Greg James J at 144; Smart AJ at 227

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	70018/96
LOWER COURT JUDICIAL OFFICER:	Newman J

COUNSEL:	IM Barker QC / R Toner SC (Appellant) CK Maxwell QC (Crown/Respondent)
SOLICITORS:	Macedone Christie Willis (Appellant) CK Smith (Crown/Respondent)
CATCHWORDS:	CRIMINAL LAW - murder - appeal against conviction - circumstantial evidence case - whether certain specified intermediate facts essential - trial judge's directions erroneous but favourable to accused - open to jury to convict on evidence, but not in accordance with trial judge's directions - irregularity such as to constitute miscarriage of justice - appeal allowed - new trial or judgment of acquittal; CRIMINAL LAW - murder - indictment - single count - crown case put on alternative basis; EVIDENCE - murder trial - hearsay - evidence of relationship between accused and deceased.
ACTS CITED:	Crimes Act 1900, ss 2, 346, 378, 567; Evidence Act, ss 55, 56, 59, 65, 66, 69, 72, 108, 135, 136, 137, 165; Criminal Appeal Act 1912, ss 6 & 8.
CASES CITED:	Shepherd v The Queen (1990) 170 CLR 573; Wilson v The Queen (1970) 123 CLR 334; R v Frawley (1993) 69 A Crim R 208; The Queen v Hissey (1973) 6 SASR 280, R v Ballantine (CCA - 27 June 1978); R v Hurst (CCA - 2 November 1983); R v Ball [1911] AC 47 at 68; R v Dean (unreported - Dunford J, 12 March 1999); R v Plevac (CCA - 5 October 1995); R v Lock (1997) 91 A Crim R 356; R v Mankotia (unreported - Sperling J, 27 July 1998); R v Lockeyer (1996) 89 A Crim R 457; R v Singh-Bal (1997) 92 A Crim R 397; May v O'Sullivan (1995) 92 CLR 654; R v Towers (1984) 14 A Crim R 12; Doney v The Queen (1990) 171 CLR 207; R v R (1989) 18 NSWLR 74; R v JMR (1991) 39 A Crim R 39; Fleming v The Queen [1998] HCA 68, (1998) 158 ALR 379; R v Giam [1999] NSWCCA 53; Plomp v The Queen (1963) 110 CLR 234; R v Anderson (1991) 53 A Crim R 421; R v Clough (1992) 28 NSWLR 396; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 423; Bromley v The Queen (1986) 161 CLR 315; Parker v The Queen [1997] HCA 13, (1997) 186 CLR 494; R v Sparrow (1980) 51 CCC (2d) 443; R v Cloutier (1980) 48 CCC (2d) 1; R v Rahman (1981) 59 CCC (2d) 323; R v White (1989) 41 A Crim R 237; Osland v The Queen (1998) 159 ALR 170; Surujpaul v The Queen (1958) 42 Cr App R 266; R v Gorman (CCA, unreported 15 May 1997); R v Sourelos (CCA, unreported 6 September 1984); Davis v The Queen (1991) 66 ALJR 22; R v Glynn (1994) 33 NSWLR 139, The King v Gordon (1789) 1 Leach 515; R v Smith & Kirton (CCA, unreported 15 February 1990); R v Baynes (1989) 41 A Crim R 405; Johns v The Queen (1979-80) 143 CLR 108; King v The Queen (1986) 161 CLR 423; Thatcher v The Queen (1987) 39 DLR (4th) 275; R v Giannetto (1997) 1 Cr App 1; R v Leivers & Ballinger (1998) 101 A Crim R 175; R v Chignell (1991) 2 NZLR 257; R v Gaughan [1990] Crim LR 880; Georgiani v The Queen (1985) 156 CLR 477; Director of Public Prosecutions for Northern Ireland v Maxwell (1979) 68 Crim App R 128; R v Browne (1987) 38 A Crim R 278; The Queen v Taylor, Harrison & Taylor (1998) Crim Law Review 583; R v Lanteri (1985) 4 NSWLR 359.
DECISION:	Appeal allowed, conviction and sentence set aside, new trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60675/98

DUNFORD J
GREG JAMES J
SMART AJ

26 NOVEMBER 1999

R v John SERRATORE
HEADNOTE

The appellant was convicted of the murder of his ex-girlfriend. The indictment comprised a single count charging that the appellant "did murder" the deceased, but the Crown put its case on the alternative basis that either the appellant killed the deceased himself or he arranged for someone else to do so.
The appellant and the deceased had been in a relationship since about 1993. It was a volatile relationship, marked by violence, obsessiveness and jealousy on the part of the appellant. Following a number of incidents, an Apprehended Violence Order was made against the appellant in November 1994, and the relationship ceased for a period but was resumed sometime in late 1994 or early in 1995 and they were seen together on a number of occasions, but in late February the deceased told her mother she intended to end the relationship. There was evidence of a telephone call on the evening of 28 March in which she agreed to meet the appellant the following day on her way home. The next day the deceased did not come home or call, and her partly decomposed body was found on 2 April 1995.
There was evidence that the appellant had left work early on 29 March (the day of the deceased's disappearance), that fibres from the carpet in the appellants motor vehicle matched those found on the soles of the deceased's boots when her body was found, and that she most likely died late on 29 March.
There was also evidence that in late 1994 the appellant had asked one BR to kidnap and kill the deceased and when BR refused, the appellant said "You don't think this is going to stop me, I'll get her six months later", and in about late February 1995 he said to BR, "Don't think I've forgotten about it, I'm still going to do it".
The appellant at all times denied any involvement in the death of the deceased and in particular denied the conversations with BR, denied that he had arranged to meet her on 29 March, denied he left work early that day and called expert witnesses who disputed the Crown's evidence as to the date of death, and the identification of the fibres on the deceased's boots.
The case against the appellant was entirely circumstantial. The jury was directed that before they could convict the appellant on either basis of the Crown case they had to be satisfied beyond reasonable doubt of four "essential circumstances". Namely:
1. That on the evening of 28 March 1995, the deceased and the appellant arranged to meet on the following evening.
2. That the appellant left work early on 29 March 1995.
3. That the deceased was killed on 29 March 1995.
4. That the deceased was in the accused's motor vehicle shortly before her death.
A number of grounds of appeal were relied on by the appellant, including:

1. The indictment was defective and the Crown should have been required to plead the alternative methods of murder in separate counts, one charging the appellant as a principal and one charging him as a principal in the second degree or as an accessory before the fact.
2. The trial judge erred in:
· admitting hearsay evidence, and
· refusing to admit into evidence a police running sheet relating to a witness who gave evidence of seeing a person she identified as the deceased alive in a motor vehicle on 31 March 1995.
3. The trial judge erred in not directing the jury that it:
· would be dangerous to convict on the evidence before the jury; and
· could be dangerous to accept the evidence of certain specified witnesses.
4. There was no case to answer.
5. That it was not reasonably open to the jury to be satisfied beyond reasonable doubt of any of the four "essential circumstances", and that accordingly the verdict was unsafe, dangerous and unsatisfactory and was unreasonable, and could not be supported, having regard to the evidence.

Held:

(a) The form of the indictment was entirely proper and the trial judge was correct in permitting the Crown to put its case on the alternative basis that either the appellant killed the deceased himself or arranged for someone else to do so.

R v White (1989) 41 A Crim R 237; R v Sourelos (CCA, unreported 6 September 1984), followed.
R v Glynn (1994) 33 NSWLR 139, referred to.
Thatcher v The Queen (1987) 39 DLR (4th) 275; R v Giannetto (1997) 1 Cr App 1; R v Leivers & Ballinger (1998) 101 A Crim R 175, considered.
(b) The trial judge's rulings on the admissibility of hearsay evidence which went to the relationship between the appellant and the deceased and not admitting the police running sheet were correct.
R v Dean (unreported - Dunford J, 12 March 1997); R v Mankotia (unreported - Sperling J, 27 July 1998); R v Lock (1997) 91 A Crim R 356 at 359-60, referred to.
(c) The evidence for which warnings were sought did not come within any of the categories specified in the Evidence Act 1995 s 165(1), but that did not exclude the necessity to give warnings in appropriate cases. However, apart from the evidence of BR, the evidence did not belong to any particular category which may, because of its nature, be unreliable, but was merely evidence which was challenged by the defence. The trial judge summarised the relevant evidence and directed the jury that the evidence of the deceased's mother and sister may be unreliable because of their close relationship to her. No further warnings or directions in relation to these matters were necessary or appropriate.
(d) Section s 165(1) did apply to the evidence of BR because he had been charged with a number of burglary offences and had given an undertaking to give evidence in accordance with his statement and had thereupon been granted an indemnity; but the warning given in respect of his evidence was sufficient in the circumstances.
(e) There was a case to answer.
May v O'Sullivan (1995) 92 CLR 654 at 658; R v Towers (1984) 14 A Crim R 12 at 14; Doney v The Queen (1990) 171 CLR 207 at 214-5, R v R (1989) 18 NSWLR 74; R v JMR ( 1991) 39 A Crim R 39 at 44, followed.
(f) (Per Dunford and Greg James JJ, Smart AJ dissenting) That it was not open to the jury to be satisfied beyond reasonable doubt of the first and second "essential elements", although there was evidence that supported both propositions; but it was open to the jury to be satisfied that the deceased most likely died on the evening of 29 March and certainly no later than 30 March, and to be satisfied beyond reasonable doubt of the fourth "essential element".
(g) That the trial judge erred in directing the jury that in order to convict on either basis of the Crown case they had to be satisfied beyond reasonable doubt of all four "essential circumstances".
(h) The proposition that the appellant himself killed the deceased required proof beyond reasonable doubt of "essential elements 2, 3 and 4 but not necessarily 1. If 2 and 4 were satisfied it was open to the jury to conclude that they had met, but it was not necessarily pre-arranged in a telephone conversation the previous evening.
(i) The alternate basis of the Crown case by procuring the murder required something beyond the history of the relationship and the alleged kidnap plot of the previous November as described by BR; but if the jury was satisfied beyond reasonable doubt of "essential element" 4 that would itself provide the necessary link.
(j) The direction that in order to convict on either basis of the Crown case required proof beyond reasonable doubt of all four "essential circumstances" constituted a wrong decision on a question of law, but it was unduly favourable to the appellant and would not justify the upholding of the appeal on that ground.
(k) There was a considerable body of evidence on which it was open to the jury, acting reasonably and having regard to the evidence, to find the appellant guilty on one or other of the bases alleged by the Crown.
Plomp v The Queen (1963) 110 CLR 234, referred to.
(l) As the jury could not, acting reasonably, have followed the trial judge's directions and found all four "essential circumstances" proved beyond reasonable doubt, there had been such an irregularity as to constitute a miscarriage of justice, or to use the language that was current prior to Fleming v The Queen [1998] HCA 68, (1998) 158 ALR 379, such an irregularity as to render the verdict unsafe and unsatisfactory.
R v Anderson (1991) 53 A Crim R 421 at 449; R v Clough (1992) 28 NSWLR 396 at 402; Davies and Cody v The King (1937) 57 CLR 170 at 180, referred to.
(m) Accordingly, the appeal would be upheld and the conviction set aside but, as there was evidence on which it would be open to a jury acting reasonably to convict, the appropriate course was to order a new trial rather than enter a judgment of acquittal.
Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; King v The Queen (1986) 161 CLR 423; R v Clough (1992) 28 NSWLR 39; R v Anderson (1991) 53 A Crim R 421; R v Giam [1999] NSWCCA 53, considered.
Criminal Appeal Act 1912, s 6, 8.
(n) (Per Smart AJ dissenting) It was open to the jury to be satisfied beyond reasonable doubt of each of the four "essential elements", and the appeal should be dismissed.
Orders (by majority): Appeal allowed, conviction and sentence set aside, new trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

60675/98

DUNFORD J
GREG JAMES J
SMART AJ

FRIDAY, 26 NOVEMBER 1999

R v John SERRATORE
JUDGMENT

1    DUNFORD J: The appellant, John Serratore, has appealed against his conviction for the murder of Frances Tizzone, whose body was found on 2 April 1995 after she had been missing since 29 March, following his trial before Newman J and a jury. He was subsequently sentenced to penal servitude for a minimum term of 13 years with an additional term of 7 years. 2    The indictment comprised a single count charging that the appellant "did murder" the deceased, but the Crown put its case (and over objection was permitted to do so) on the alternative basis that either the appellant killed the deceased himself or procured someone else to do so, and the jury was not required to say on which basis it found the appellant guilty.
3    Although it will be necessary to go into the facts in more detail when dealing with some of the particular grounds of appeal, the nature of the Crown case can be summarised as follows. 4    The appellant and the deceased had been boyfriend and girlfriend since about 1993 and in due course a sexual relationship developed. The relationship was somewhat stormy and was marked by violence, obsessiveness and jealously on the part of the appellant. 5    Following a number of incidents in early November 1994, an Interim Apprehended Violence Order was made against the appellant on 9 November, and such order was made a final order on 14 November 1994 "by consent and without admissions," and the relationship between them ceased for a period. 6    It was revived sometime late 1994 or early in 1995 and they were seen together on a number of outings and parties, but in late February the deceased told her mother she intended to end the relationship. There was evidence of a telephone call on the evening of 28 March in which she agreed to meet the appellant the following day on her way home, to exchange cards and other mementos as signalling the end of their relationship, and she said she would telephone for a lift about 6 pm when she was finished. 7    The next day the deceased went to university as usual and left there about 4.20 pm by bus, telling a university friend that she was going to visit a sick relative. She did not come home and did not call, and her partly decomposed body was found on the afternoon of Sunday, 2 April in bush not far off the Wakehurst Parkway at Frenchs Forrest. 8    There was evidence that the appellant who worked at Botany had left work early on Wednesday the 29th (the day of the deceased's disappearance), that fibres from the carpet in the appellant's Honda CRX motor vehicle matched those found on the soles of the deceased's boots when her body was found, and that she most likely died late on 29 March. 9    The appellant, both in his sworn evidence at the trial and in two recorded interviews with police, denied any involvement in the death of the deceased, and in particular denied that he had arranged to meet her on 29 March, denied he left work early that day and called expert witnesses who disputed the Crown's evidence as to the date of death, and the identification of the fibres on the deceased's boots. 10    The case against the appellant was therefore entirely circumstantial, and his Honour gave the appropriate directions to the jury concerning finding guilt in a circumstantial evidence case. He also directed them (having regard to Shepherd v The Queen (1990) 170 CLR 573) that before they could convict the appellant on either basis on which the Crown relied, they had to find four "essential circumstances" or intermediate facts proved beyond reasonable doubt, namely:

(1) That on the evening of 28 March 1995 Frances Tizzone and John Serratore arranged to meet on the following evening.
(2) That the appellant left work early between 3.45 and 4 o'clock on 29 March 1995.
(3) That the deceased was killed on 29 March 1995.
(4) That the deceased was in the appellant's Honda CRX motor vehicle shortly before her death.

11    As amended at the hearing, the Grounds of Appeal relied on were as follows:

1. (a) His Honour Barr J (who had dealt with some pre-trial issues) and the learned trial judge were in error in not requiring the Crown to plead the alternative methods of murder in two alternative counts, one charging the Appellant as a principal and one charging him as a principal in the second degree or as an accessory before the fact.
(b) His Honour the learned trial judge was in error in permitting the alternatives to be considered by the jury.
2. His Honour the learned trial judge erred in law in holding the Appellant had a case to answer.
3. His Honour the learned trial judge erred in admitting hearsay evidence.
4. His Honour the learned trial judge erred in refusing to admit into evidence Statements by Marie Wilthsire as follows:
Source Doc: JR090405.H Running Sheet 9/2/1 created 9 April 1995;
Source Doc: MR120402.H Running Sheet 9/2/2 created 12 April 1995.
5. His Honour the learned trial judge erred in not directing the jury that it would be dangerous to convict on the evidence before the jury.
5A His Honour the learned trial judge erred in not directing the jury that it could be dangerous to accept the evidence of Patricia Tizzone and Antonella Tizzone as to the alleged telephone call of 28 March 1995 and the alleged arrangement whereby the Appellant was to meet the deceased.
5B His Honour the learned trial judge erred in not directing the jury that it could be dangerous to accept the evidence of Damien Bower that the Appellant left work early on 29 March 1995.
5C His Honour the learned trial judge erred in not directing the jury that it could be dangerous to accept the evidence of Patricia Tizzone and Bassam Radwan as to the alleged soliciting to murder.
6. The conviction was unsafe, dangerous and unsatisfactory in the administration of justice because:
(i) the jury could not reasonably have found that the deceased died on 29 March 1995;
(ii) the jury could not reasonably have found that the Appellant left work early on 29 March 1995;
(iii) the jury could not reasonably have found there was an arrangement made between the Appellant and the deceased on 28 March 1995 to meet on 29 March 1995;
(iv) the jury could not reasonably have found that the deceased was in the Appellant's Honda CRX motor vehicle on 29 March 1995.
(v) on the whole of the evidence it was not reasonably open to the jury to convict; they should have had a reasonable doubt as to the guilt of the Appellant.

12    In relation to grounds 1(a) and (b), I agree with the judgment of Greg James J that there is no substance in those grounds, but I would prefer not to express any view at this stage concerning the appropriate directions to be given to the jury at the new trial. Those matters are best left to the trial judge having regard to how the case is presented and the evidence given at such new trial.

Hearsay Evidence

13    I pass over ground 2 for the time being and turn to ground 3 which was that the trial judge erred in admitting hearsay evidence. 14    This evidence was objected to and ruled on prior to the trial, by reference to the proposed witnesses' statements, some of it was ruled inadmissible, and not all of that ruled admissible ultimately found its way into evidence. It was tendered as relationship evidence and can conveniently be divided into two categories:

(a) evidence from family and friends of statements made to them by the deceased that the appellant had verbally abused her, physically assaulted her, followed her to university and sat in her classes, was always calling her on the telephone and always wanted to know her whereabouts;
(b) similarly sourced evidence of statements by the deceased to the effect that she was intending to end the relationship but the appellant was making it difficult or always asking her for another chance, at another stage that the relationship had been resumed and finally on the evening before she disappeared that she was intending to meet him the following day to exchange mementos, signalling the end of the relationship.

15    In relation to category (a) the evidence objected to was supplemented by direct oral evidence which was not hearsay; e.g. some of the witnesses actually saw the appellant behaving in a dominating and abusive manner towards the deceased when they went out together or saw him in her classes etc at university, and many of the statements by the deceased about physical assaults were made in response to questions about, and/or at the time when they observed marks and bruises on her body. 16    The evidence was objected to on three grounds:

(1) It was not relevant, or at most, only marginally so.
(2) It was hearsay.
(3) It ought to be excluded on discretionary grounds pursuant to ss 135 or 136, Evidence Act 1995.

17    It is now well established that in murder trials, evidence of the relationship between the parties is relevant and admissible: Wilson v The Queen (1970) 123 CLR 334, R v Frawley (1993) 69 A Crim R 208, The Queen v Hissey (1973) 6 SASR 280, R v Ballantine (CCA - 27 June 1978), R v Hurst (CCA - 2 November 1983). 18    To reject the evidence would require the jury to examine the matter as if it happened in a vacuum: Wilson at 334 per Menzies J. The term "relationship evidence" is vague and it will often be necessary to identify more precisely the nature of the evidence: Frawley at 230 per Gleeson CJ. 19 Here the evidence, if accepted by the jury, tended to show that the relationship between the parties was an extremely obsessive, jealous and dominating one on the part of the appellant, peppered with incidents of physical violence, not showing a tendency to violence in the sense of a tendency to kill (it was not tendered or admitted on that basis), but as showing the degree of domination and obsessiveness which the appellant brought to the relationship. It was not what might be described as an ordinary boyfriend / girlfriend relationship with its occasional ups and downs and odd verbal disagreements. In addition the evidence, if accepted, disclosed that the deceased had previously tried to end the relationship, that the appellant had made it difficult but she had finally resolved to do so and the return of mementos was to mark this event. 20 In addition, there was other evidence: of his accusing her (apparently falsely and without any evidence to justify the accusation) of resuming a relationship with a former boyfriend, his humiliating her in front of her parents by reference to an abortion; and of statements of intention to kill or otherwise harm or humiliate her in his statements to Bassam Radwan and Manolis Kasdaglis; and of the threats allegedly made to the deceased and her family at the Burwood Court on 18 November 1994, including the statement to Radwan as late as February 1995 that he still intended to "do it". This evidence was clearly admissible and not objected to, at least when it was given, and the so called "relationship" evidence was necessary to put such evidence in its proper context. 21 It was submitted that even if such evidence of the relationship were admissible in cases where the issue is such as intention to kill or self defence etc, it is not admissible where, as here, the issue is the identity of the killer, but in Wilson itself the issue was whether the accused had fired the gun (or whether it had discharged accidentally perhaps when a dog jumped on the bale of hay on which it was resting) and Hissey and Ballantine were also cases where the identity of the killer was in issue. 22    Indeed in Wilson, Barwick CJ at 339 referred to what Lord Atkinson had said (arguendo) in R v Ball [1911] AC 47 at 68, namely:

"Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to show he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but of the fact that he killed him. You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life. Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his "malice aforethought," inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not."

23    For these reasons, I am satisfied that both categories of the relationship evidence described above were relevant, and therefore admissible: Evidence Act 1995, ss 55, 56, provided they did not offend the hearsay rule or came within one of the exceptions to that rule. In respect of so much of it as was hearsay (s 59) the Crown relied on the exceptions contained in ss 65(2)(b)(c) and 72. 24 Section 65, so far as is relevant provides as follows:

(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was:
(b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) made in circumstances that make it highly probable that the representation is reliable . . .

25    The evidence by family members and friends of the deceased about what she told them concerning verbal abuse, physical assaults and harassment was therefore admissible if it satisfied the conditions laid down in subs (2)(b) or (c) that is, if the representations by the deceased to the witnesses were made when or shortly after the asserted facts occurred and in circumstances that made it unlikely that the representations were fabrications (b), or were made in circumstances that made it highly probable that the representations (i.e. by the deceased) to her friends were reliable (c). 26    In R v Dean (12 March 1997) I expressed the view (at p 5) that, having regard to what was said by the Australian Law Reform Commission in its Interim Report (ALRC 26) and the previous limitations of the Res Gestae exception to the hearsay rule, para (b) was limited to representations about the crime itself and not about some antecedent event: cf R v Plevac (CCA - 5 October 1995). These representations did not relate to the crime itself but to antecedent events and, if I was right in so limiting the effect of subs (2)(b), the representations would not be admissible under that paragraph. 27    In Dean my attention was not directed to the definition of "asserted fact" in s 59; and it may be that the "asserted facts" in para (b) could include the previous assaults, etc and not be limited to the alleged crime itself. No such limitation appears to have been placed on para (b) by Hunt CJ at CL in R v Lock (1997) 91 A Crim R 356 at 359-60 (which concerned prior stabbings) or Sperling J in R v Mankotia (27 July 1998) which concerned previous threats to kill; and what I said in this regard in Dean may need to be reconsidered in an appropriate case. It is not necessary to do so in this case because I am satisfied that such evidence was admissible pursuant to s 65(2)(c). 28 That paragraph requires that the evidence be made in circumstances that make it highly probable that the representation (i.e. what the deceased said) was reliable and it is unnecessary here to consider whether the circumstances which may be taken into account can include subsequent events such as the death as was held in Dean and Lock or whether as Sperling J held in Mankotia they are limited to circumstances existing at the time, as the Crown does not in this case rely on subsequent circumstances (such as the death of the deceased) to establish the high probability that the representations were reliable. Here the representations were made in reference to particular scratches and bruises, etc on the deceased's person, or when she was crying and distressed immediately after leaving the appellant's company (e.g. the evening of the outing to Jesus Christ Superstar), and in such circumstances I consider it was highly probable that they were reliable. There were also representations in late 1994 and early 1995 that they were seeing each other and having sexual intercourse. There is no dispute they were seeing each other, and the deceased's visits to the two doctors (independently proved) render the representations concerning sexual intercourse reliable. 29 In relation to the statements made by the deceased to her mother and various girl friends to the effect that she was in a relationship with the appellant, was intending to break the relationship, was intending to meet him for mutual return of mementos of the relationship and such like, these statements were contemporaneous representations about her feelings, intentions and / or state of mind and were consequently admissible as an exception to the hearsay rule pursuant to s 72. 30 It follows that the disputed evidence was admissible unless grounds were shown for its exclusion under ss 135 or 137. Section 137 is mandatory, the evidence must be excluded if it is adduced by the prosecutor in criminal proceedings and its probative value is outweighed by the danger of unfair prejudice to the defendant; s 135 confers a discretion but it is difficult to see how it could be relevant in criminal proceedings to "unfairly prejudicial" evidence led by the prosecution which would be excluded (not merely as a matter of discretion) under s 137. 31 "Probative value" is defined in the Dictionary to the Act as meaning the extent to which the evidence could rationally affect the assessment of the probability of the existence of the particular fact in issue; in this case, whether the appellant was involved in the death of the deceased. All relevant evidence led in the Crown case at trial is prejudicial to the accused, but it is only that of which the probative value is outweighed by the danger of unfair prejudice which is excluded; that is evidence which has only slight probative value but which carries with it a probability that it be misused by the tribunal of fact in a way logically unconnected with the issues in the case: R v Lockyer (1996) 89 A Crim R 457. See also R v Singh-Bal (1997) 92 A Crim R 397. 32 In my opinion this evidence was clearly relevant, showing as it did, the nature of the relationship between the parties in the period leading up to the deceased's disappearance; and although prejudicial to the appellant, that prejudice was not "unfair" in any way. There was accordingly no ground for its exclusion under ss 135 or 137. It is not disputed that his Honour gave the appropriate warning in respect to the possible unreliability of hearsay evidence required by s 165(1)(a). 33 Ground of Appeal 4 concerns the admission of two police running sheets concerning the sighting by Marie Wiltshire of a person whom she allegedly identified as the deceased in a car on the Gosford Freeway near Berowra on the afternoon of Friday 31 March 1995 and is more conveniently considered in conjunction with ground 6 (i). 34 Before considering grounds 2 and 6 (i) to (v) it is necessary to refer to the evidence in more detail. (Unless otherwise indicated the numbers in brackets are reference to page numbers in the transcript.)

Background and Relationship Facts.

35    The deceased and the appellant grew up close to each other in Croydon Park, a suburb of Sydney, they went to different high schools but in Years 8 and 9 they formed a boyfriend / girlfriend relationship. This relationship ended when they were in Year 10 and the deceased formed a relationship with another boy, Joe Elia. In 1993 the deceased was attending Macquarie University studying for a science degree and she and the appellant resumed their boyfriend / girlfriend relationship, and in May of that year she brought the appellant to her home and introduced him to her parents. Subsequently, the parents of the appellant and the deceased also met (32, 34). It was not disputed that this relationship continued until November 1994 shortly before, or up to, the time when an Apprehended Violence Order was made. 36    The Crown alleged that from about mid 1994 the relationship was visited with violence and obsession on the part of the appellant. The deceased's mother, Patricia Tizzone, said that she noticed they were often arguing on the telephone and in June 1994 she saw a bruise on the left side of the deceased's face and the latter told her that she had hit her face against a door (35), subsequently she noticed bruises on the deceased's arms (35). In about August 1994, the deceased told her mother that the appellant would come to the university and sit in her classes (although he had no business at the university), that he would ask her what she had been doing that day and tell her that he had been watching her (54). She also told her mother that the appellant would some times hit her and showed her some nail marks on her arms which looked fresh (54), and she said that when he saw her sitting with a group of students, male and female, at the university he became abusive towards the male students so that they did not speak to her any more (55). She told her that she had a plastic bag containing personal items and the appellant had the same kind of bag and they were supposed to exchange the bags, that she gave him her bag but he never gave her his (55). 37    In about August 1994, there was an incident where Mrs Tizzone went into the deceased's bedroom and saw her crying, the deceased told her that the appellant used to stand out the front of her window and watch her from there, that they got into an argument and he punched her through the fly screen. On this occasion the mother saw the deceased had a cut lip which was red and the flyscreen was broken with a hole in it (56). About this time the deceased told a friend of hers, Natasha Skiadopoulos, that the appellant was hitting her (384) and she later also told Rima Abou-Raad, a fellow university student, that he would hit her, abuse her emotionally and physically, and the witness saw she had scratches and bruises (415). Miss Abou-Raad confirmed that the appellant came to the university and sat in the deceased's classes. She also described an occasion when she saw the appellant hit the deceased on the head and push her into the brick wall when the appellant's mother came out and separated them (417-18). She also described another incident at university in October on a Saturday morning when she overheard a conversation where the appellant said to the deceased, "You're coming home with me", the deceased said, "No, I'm not", the appellant grabbed her hand and said, "Yes you are", he was very forceful, and he appeared angry, the deceased walked away with him for a few minutes then returned and said she was going home with the appellant which she did, although she did not look too happy about it (420). 38    In September 1994, the appellant came to the deceased's home, she met him at the front of the house and her mother saw them arguing and the appellant then grabbed the deceased by the neck and shook her (55). About this time, the deceased went to the theatre one evening to see Jesus Christ Superstar with her friend Michelle Kaltoum and another friend. After the show was finished they saw the appellant on the footpath outside the theatre, but this was apparently a pre-arranged meeting. They decided to go to a hotel at Darling Harbour and after a while the deceased told her that she was going for a walk with the appellant. Miss Kaltoum and her other friend waited about 20 minutes after which the deceased returned on her own, she was distressed and crying and said that the appellant had hit her. They then returned home, the three of them by themselves (411-412). She told her mother that an argument developed because the appellant demanded that she go home with him and when she went outside the hotel he became abusive and hit her a few times about the face and head butted her to the head (56). Although the appellant in his sworn evidence gave a slightly different version of the background leading up to the argument he agreed that on that evening when he and the deceased were outside the hotel they got into an argument and he "slapped her in a fight" (691-2, 774-5). 39    After this incident the deceased told her mother that she was thinking of ending her relationship with the appellant, and had discussed it with him but that he always asked for another chance (57) and that he sort of threatened to show her father the bag that they had exchanged and the deceased did not want her father to see the bag (57-58). The appellant said that at about this time the relationship changed, she stopped accepting his phone calls, but he saw a bag of hers (650-651) beside the bed, full of letters, cards and photos including an old photo of Joe Elia, the boyfriend she had in her later years of high school. The appellant said he questioned her about it because he had seen Elia driving around the area. He asked her had she been seeing Elia, she replied, "no" and then she handed him the bag and said, "Listen, here is the bag to prove it doesn't mean anything to me". (651) 40    A major confrontation took place on 5 November, a Saturday afternoon. According to the deceased's mother, she went to call the deceased and noticed that the appellant was out the front of their house and that the deceased had gone out to see him. They were having an argument and she saw the appellant hit the deceased across the face, so she called her husband and they all went out the front. Her husband asked the appellant what was going on, and in the course of further argument the appellant said, "You ask for answers about when she was pregnant and had the abortion", that being the first time the deceased's mother or father had heard of any pregnancy or abortion. The deceased and her mother went inside and the appellant and the deceased's father continued arguing and yelling at each other outside for some time (58-59, 131). 41    The appellant in his evidence said (652) that when the deceased came out of the house he confronted her about Joe (Elia) and asked, "Is something going on? Are you seeing Joe?". He said she had a guilty look on her face, but she denied it and so he said, "Don't lie to me, I just saw him." She told him that she was just speaking to him, that she was not seeing him but he slapped her in the face . . . "because she lied to me and she was seeing her ex-boyfriend. I suppose I lost my temper". Soon after that her father came outside and they started getting into an argument. 42    He said he told the father that she had been seeing her ex-boyfriend and the argument continued, he pushed the father, who started screaming and saying he was going to hit the appellant. He continued,

"I told Frances, C'mon tell him. I'm getting my arse kicked in here and its not my fault. Tell him what you have been doing, and she just didn't say nothing, just standing there. We kept on arguing for a little bit longer, screaming at each other and Frances said "I was only speaking to him a few times. I never seen him". When she said that, I don't know, I just told her father about how she was pregnant to me and she had an abortion and he seemed like it was a big shock at the time."

He said that when he went home he poked a finger through a photo that he had at home of him and the deceased. He agreed in cross-examination (710) that he accused the deceased of having an affair with her ex-boyfriend solely on the basis that he saw the latter driving his car in the street where the deceased lived and in the general area; and see further cross-examination of the appellant at 723-5, 728-31.

43    Later that day the deceased, her mother and her father went to Burwood Police Station and reported the incident (59). 44    The following day (Sunday), the deceased's father, Santo Tizzone, went to the Serratore house and spoke with the appellant's father, Frank Serratore, and whilst he was there the appellant came out and said to him, "The problem is your daughter she goes off with somebody else, she's a slut, I can prove it to you . . . I have got some documents, I can prove it to you". He went inside, brought out a plastic bag and showed him pictures of the deceased at a school formal from Year 12, three years previously. He repeated the statement about the deceased having had an abortion, went inside but later came out again and indicated that he wanted to fight Santo Tizzone saying, "Come on throw the first punch, I'm going to kill you", whereupon his sister came out and asked Santo to go home, which he did (132). In his evidence (655) the accused confirmed the confrontation and his production and reliance on the three year old photo, and that he had slapped the deceased "for what she did to me", but he claimed that Santo Tizzone threatened to kill him. 45    Although the deceased may have seen Joe Elia in the street, there was no evidence that she had been out with him or had been associating with him in any romantic sense. 46    The following day, Monday 7 November, according to the appellant, Monica Kollar telephoned the appellant on behalf of the deceased and wanted to know why he had told her father about the abortion and he replied that she deserved it because she did not stick up for him when he was copping all the blame on Saturday (656). This was a somewhat unsatisfactory perception of what happened in view of the fact that the appellant had accused the deceased (apparently falsely and without any evidence) of resuming a friendship with her ex-boyfriend, a thing she was perfectly entitled to do if she wanted to in any event, and he had refused to accept her denials. 47    It was open to the jury to infer from this evidence that the appellant was intensely jealous of his relationship with the deceased, that he was irrational and suspicious, would not accept her denials, and inclined to unreasonable anger and physical violence towards her. 48    That evening (Monday 7 November) the appellant came to the Tizzone house and was bashing on the front door looking for the deceased; she didn't go out, so he started yelling for her father to go out because he wanted to fight him, but the father did not go out and told him to go home, which he did (60). They telephoned the Enfield police station and Constables McDonald (now Jackson) and Shaw attended the Tizzone house at about 8.45 pm. The deceased told them that the appellant was possessive of her, he would come to the university and she felt he was stalking her, and he would come to the house and request a fight with her father. She felt threatened by him and said that he would push her about when she would try to end the relationship and he would refuse to accept that, also that he would push her about and become a bit violent and aggressive (448-9). 49    Bassam Radwan had gone to school with the appellant, but after leaving school they drifted apart until October 1994 when they started to see more of each other. The appellant told him about the deceased, that he had broken up with her and he was depressed about it and had a hard time. He said it was the deceased's family getting involved and started suggesting that he wanted Radwan to "hurt a lady" (533) and eventually he said the lady he was referring to was the deceased's mother (534). Approximately two weeks later, (8 November) he asked Radwan to help him get the deceased. He said that she would be driving her mother to work at Concord Hospital the following morning at 8 o'clock and dropping her off and driving on to university, and that after she dropped her mother off she would come to an intersection and as she approached the intersection he wanted Radwan to jump into the passenger's seat of the car, to drive somewhere remote with her, make her write out a suicide note and force her to swallow a whole lot of pills, as he wanted to get her back for what she had done to him (535). 50    Radwan said he would not do it, but the appellant kept trying to convince him, saying, "You have to help me, if you don’t help me I won't get away with it". The conversation lasted over half an hour (535-538). In due course the appellant left, but later returned, still trying to persuade Radwan to do what he asked. Radwan told him he would tell the deceased, her father, the police, everybody (538), but the appellant kept on persisting, he got angry and frustrated, and ultimately offered to give Radwan his car and the money he had saved, approximately $3,000. Radwan again refused (541). At that stage Radwan did not think he was serious, but he spoke to him again that night and knew he was serious, although he did not think he would go through with it (541). Radwan understood that the initial plan was for him to help the appellant so that the latter would have an alibi (548), and on one occasion, which Radwan thought was in the conversation on 8 November, the appellant also said, "My cousin knows some Greeks, hit men, or people from the Cross" (548). 51    The next morning he asked him one more time, and when Radwan again refused, the appellant said, "Okay, I'm going myself to do it" and then drove off (542). Radwan thereupon went to the Tizzone household where he told the deceased (and her mother) not to go to university, that the appellant was waiting for her, that he had asked him to hurt her, but he (Radwan) would not go through with it, and that that day was his last chance (543). He said he also told them of the proposal for him to abduct the deceased, have her write a suicide note and swallow a lot of pills (60, 543-4) so, after telephoning the police and picking up the deceased's cousin, Antonella Notaro, from her home, the deceased, her mother and the cousin all went to the university (62-3). 52    When they arrived, the deceased went to class and the others saw the appellant was present on campus and went to see Mr Dickson, head of security who notified Eastwood police and Constables O'Connor and Sharrock attended (63). The police spoke to Mrs Tizzone and Miss Notaras and later when her class finished they also spoke to the deceased (64). The police were told of the relationship and that the deceased was trying to break it off but that the appellant had turned up at university that day, that contact had already been made with police and there was talk of a restraining order (462). No notes of what was said were taken by the police or by Mr Dickson, and they do not recall anything being said about a proposed kidnapping etc, although Miss Abou-Raad who accompanied the deceased from the lecture to the Security Office said the deceased did tell her of it (430-1) and Mr Dickson said there appeared to be something serious afoot (427) and the deceased appeared nervous (428). The police then approached the appellant and told him the deceased did not want to see him and had left anyway, they searched his car, found nothing of interest and asked him to leave, which he did (462-3). Constable O'Connor said that he told him there was no need to wreck his life over a woman, and that he seemed emotional (463). 53    The appellant said his reason for going to the university was that he wanted to speak to the deceased to find out about what happened because he had to know, and he did not intend to do her any harm and he had no weapons in the vehicle (663). 54    Radwan was facing criminal charges and gave an undertaking to give evidence against the appellant as a result of which he apparently received a significant discount when the charges were dealt with (559-564). An appropriate warning was given by the judge in respect of his evidence, but his evidence was partly corroborated by Monzer Radwan (his brother) who said he overhead the appellant say to his brother something along the lines, "come on Bassam, come on if you don't do it, I'll do it" (584) and also corroborated by the fact that following Radwan coming to the Tizzone house on the morning of the 9th the deceased and her mother collected the cousin Antonella Notaro and then all proceeded to Macquarie University where the appellant had in fact gone. 55    The appellant denied asking Radwan to help him kill the deceased (661), but agreed he had spoken to him on 8 November about his relationship with the deceased and troubles with her parents the previous Saturday, and said he wanted to go and see her at the university the next day and ask her why she had gone with Joe (Elia) and why she had lied about it (660). He said he was very angry and Radwan told him to keep away from her, but the appellant insisted he was going (661). 56    When first interviewed by police on 30 March 1995 (Ex. G), reference was made to him speaking to Radwan about the deceased and when he was asked (Q 191), "Did you speak to Bassam and ask him to do something on your behalf?" (which could have related to delivering a message), his answer was, "No, because I wouldn't be that stupid to do something,'' and when it was put to him (QQ. 195-197) that he had asked Bassam to abduct the deceased on her way to university and arrange for her to be given a drug overdose, his response was, "No, I don't recall that, no", a somewhat strange answer when an express and immediate denial might have been expected, and (at AA 222 and 230 and 230-232) he referred to "rumours" going around at the time (November 1994) about Radwan helping him get her and overdosing etc, which "rumours" he presumably would not have known of at that time unless there was some substance to them. The jury saw and heard the witness and it was open to them to accept Radwan's evidence. 57    Later that day, Constable McDonald (Jackson) applied for and obtained an Interim Apprehended Violence Order at Burwood Court (449). In making the application, she did not refer to the abduction threat in the complaint, but to the information she had received on the Monday evening together with additional information she had received about him threatening to attend Macquarie University and shoot the deceased (451). The complaint was Exhibit 1 at the trial. About 6 pm that evening the appellant was served with the order at Enfield Police Station (450). 58    Late that afternoon the appellant came to Radwan's house, asked him if he had said anything to the deceased, and told him that the police had seen him at the university, to which Radwan replied, "yes, I told them", and the appellant then saw the deceased's telephone number which Radwan had written down on a piece of paper (545- Radwan, 664 - appellant). On that or a subsequent occasion the appellant told Radwan about the restraining order and said, "You don't think this is going to stop me, I'll get her six months later" (546). About this time the deceased told her friend Natasha Skiadopoulos that she was going to court because of violence on the part of the appellant and showed her fingernail marks (384). 59    On 18 November 1994, the Interim Apprehended Violence Order was made final "by consent and without admissions"; accordingly, no one gave evidence. The deceased's mother said that as they were leaving the court the appellant said to the deceased, "you're gone, you're gone" (67), according to her father he said, "you're dead, its going to cost me money but you're dead" (128,134) and to the father he said, "I'm going to be your nightmare" (135). The appellant and his relations gave a different version of these conversations (673, 880, 896) to the effect that the appellant abused Santo Tizzone, rather than threatened anyone, although in his Recorded Interview on 30 March 1995 (Ex. G) the appellant virtually admitted making threats to the deceased and her father "on the spur of the moment" (AA 88 - 91). The other witnesses agreed that the appellant did use a string of abuse and was restrained by his cousin John Serratore. The Police Prosecutor who appeared in relation to the Apprehended Violence Order, Sergeant Adam Sutton gave evidence that the deceased told him that she was fearful of being abducted by the appellant or someone acting on his behalf (507). 60    After the court hearing in November 1994, the Tizzone household received numerous phone calls, but whenever anyone other than the deceased answered the phone, the caller would hang up (67). This happened anything from two or three times and on one occasion up to 15 times a day, another estimate given was 5 to 10 per night (151) and the deceased's brother, Joseph Tizzone identified the appellant as the caller on one occasion in early March 1995 (161). 61    Sometime after the making of the Apprehended Violence Order, their relationship was resumed but there was no specific evidence as to when this occurred. On 7 December 1994 the deceased saw Dr Padmanabhan in the company of a male person and requested "the morning after pill" stating that she had had intercourse whilst menstruating (Ex. R). Shortly after the order was made, the deceased told Natasha Skiadopoulos that she had started seeing the appellant again, and for some time it seems Miss Skiadopoulos acted as an intermediary so they could arrange meetings (385) and by 1995 she was aware a sexual relationship had been resumed (386) although he was still grabbing her and hitting her. She told Skiadopoulos that she wanted to break up with him but was finding it hard (386). 62    At Monica Kollar's 21st birthday party on 27 January the couple were together (391) but the following week the deceased told Miss Kollar that she was confused about the relationship, that sometimes he was angry with her but that at other times he would be okay (392); and three weeks later, with Miss Kollar's fiancee, the four of them went to Bondi but at the end of the evening the appellant insisted that the deceased go home with him in his car and spoke to her in an angry, demanding manner (392). A few weeks later, the four of them went to Manly again and the deceased and the appellant were affectionate towards each other. This trip was about three weeks before the deceased disappeared. 63    In February the deceased told her mother that they were going to give the relationship another go but apparently the father was never told this (68) and in the middle of February 1995 her mother found a Valentine's Day card under the bed signed "John" and the date "95" (68). There was also a 21st birthday card, the deceased having turned 21 on 9 January, also signed "John" (68). The deceased also gave the appellant a Valentine's Day card (Ex. M) in generally affectionate terms. She wrote of reigniting "our flame which was once burning quite strongly" and "it will take time for our love to become as strong as it was earlier". The card concluded, "I don't want any abuse like was previously experienced. I want the old Johnny the one I had when we first met". Towards the end of February she told her mother that she was thinking of ending the relationship because she just could not forget all the things that had happened in the past (69). 64    They attended Natasha Skiadopoulos' 21st Birthday party together on 18 February and were cuddling and embracing (383, 388). And on 20 February the deceased saw Dr Quek and requested the "morning after" pill (Ex. S). 65    During late February and early March, the deceased telephoned the appellant about once a day at his place of work and on one occasion the appellant asked a fellow employee to take a message if she rang whilst he was out, as to which railway station they were to meet at after work, but these calls stopped about two weeks before she disappeared (503). Radwan and his girlfriend, Zahia Charbel, saw the appellant waiting for the deceased at Burwood Station on one occasion at about this time (547, 604). The appellant gave them a lift home and said he was just waiting for the deceased, but drove past her bus stop and said, "She mustn't be here or she must have gone home already." (547-8). Radwan also said that in about late February the appellant said to him, "Don't think I've forgotten about her, I'm only just sleeping with her . . . . Don't think I've forgotten about it, I'm still going to do it" (547). 66    In cross-examination of the accused, it was put to him (776) that he had told a Manolis Kasdaglis that he would get her back or make life hell for her, to which he replied, "I think at that stage, on the spur of the moment, I was upset" and when asked if he had said those things, his reply was, "Not exactly in those words but I said I am embarrassed or something like that", and he claimed it was in November 1994. Kasdaglis said that in January 1995 the appellant told him that he was upset and devastated because he had broken up with the deceased and said "something about humiliating her and stuff, you know embarrassing her and things like that" (466). 67    On 18 March 1995 the deceased and the appellant both attended Jadranka Vulic's 21st birthday party. Miss Vulic said they seemed to be a happy couple just cuddling and talking to one another and were together basically the whole evening (383) (photo Ex. K). A week later, on 25 March, the deceased telephoned Vulic and told her that the appellant had harassed her a little bit, he went over to Macquarie University where she was studying and would harass her, and that "he had hit her once repeatedly" (sic) (382).

Evidence Surrounding the Disappearance of the Deceased

68    The Crown alleged that following a telephone call to the deceased on the evening of 28 March, overheard by her sister Antonella (151), the deceased told her mother that she and the appellant had agreed to break up the relationship and that they were meeting the following afternoon after university so that he could give her back the bag that he had of hers and she could return his Valentine's Day card, and she arranged with her mother to give her a telephone call from Strathfield Railway Station when they were finished so she or her husband could pick her up and it was expected this would be about 6 o'clock (73). 69    She spent the next day (29th) at university in company with Rima Abou-Raad, during the day they attended a protest march and between 4 pm and 4.30 pm Miss Abou-Raad telephoned the Tizzone home, spoke to the deceased's younger brother, Joseph, and said the deceased had asked her to ring and request that they tape the 6 o'clock news because she may not be home by then and it was anticipated that the protest march they had attended might be filmed and on the news (418-9). This last item was confirmed by the brother (161). Towards the end of the day, Miss Abou-Raad offered the deceased a lift home, but the deceased said she was going to visit a sick relative and would be getting off the train at Burwood or Strathfield (419). She caught the 4.21 pm bus from the university which arrived at Epping Railway Station at about 4.40 pm (470-472). 70    Neither her family nor Miss Abou-Raad saw her alive again and her body was found near the side of the Wakehurst Parkway at Frenchs Forest in the late afternoon of Sunday 2 April at about 3.40 pm. By that time the body had been subjected to maggot infestation, there was no sign of any assault, sexual or otherwise, and a blue Sportsgirl bag in which she carried her university books and folders, her purse and a small plastic bag in which she carried other items for university were nearby. There was no evidence of any sick relative but Miss Abou-Raad said that she had no idea that the deceased and the accused had renewed their relationship (417). 71    When there was no call from the deceased by 8 pm, her mother telephoned Miss Abou-Raad who told her that she had last seen her going for the 4.20 pm bus and at 9.00 pm she and her husband went to the Burwood Police Station where they spoke to Constable Hall and told her of their fears, but did not mention a word about the alleged arrangement for her to meet the appellant at the Strathfield Railway Station. Constable Hall then rang the appellant's home and after introducing herself said, "Frances Tizzone has not come home and her parents are worried about her, have you seen her?" to which he replied, "No I'm not allowed to see her, she took out an order". She asked him, "Where have you been this afternoon?" and he said, "I came home from work and have been here all the time." She asked, "What time did you come home from work?" and he said, "about 5 pm" (210-211). 72    At about 10.00 pm Mrs Tizzone telephoned the appellant and he assured her that he had not seen or heard from the deceased that day and said the last time he had seen her was in December, except for once at a party. Later they again contacted the police and Constable Gregory came to the Tizzone's premises about 2.30 am on the morning of the 30th, then Detectives Williams and Marks came at about 7 am. Detective Williams said that after going to the Tizzone residence, he went to Macquarie University where he later spoke with Miss Abou-Raad and a lecturer, Mr Ali, and later went to the Serratore house and asked Mrs Serratore to get the appellant to contact them, which he did later that evening where he took part in a Recorded Interview (Ex. G) (196-198). The interview commenced at 7.02 pm. 73    In that interview the appellant gave a number of statements which were subsequently proved to be untrue. He said that since November 1994 he and the deceased had spoken and seen each other a few times, and that was about it (A 57). He said he had last seen her at Jadranka's party two weeks previously where they had had a short conversation (A 72). He denied they had had a sexual relationship since the Apprehended Violence Order (AA 163-167, AA 245-6). At the trial he explained that the reason for these lies was that he did no wish to incriminate himself in any breach of the Apprehended Violence Order. He also said that on Wednesday the 29th he left work at 4.50 pm and went straight home, arriving there about 5.25 pm and he did not go out again that night (AA 285-292). He was interviewed again on 17 May 1995 (Ex. J). 74    The appellant worked at Botany and Detective Williams gave evidence that it took him approximately 29 minutes to drive from Botany to Croydon Park and a further 6½ minutes to travel from there to Strathfield Railway Station making a total of 35½ minutes (201-2). Mr Erlandsson (called on behalf of the appellant) took slightly, but not significantly, longer (1071-2). The appellant was under police surveillance from 30 March. 75    The appellant gave sworn evidence in which he denied he had anything to do with the death of the deceased and also denied most of the violence to the deceased during their relationship alleged against him. He said that in March 1995 his normal working hours were 8.30 am to 5 pm and the journey to his workplace from his home took 30-40 minutes by car (613). On Wednesday 29 March 1995, he arrived at work at 8.20 am and left at 4.50 pm (614), arriving home at about 5.30 pm (614). The appellant drove to work in his Toyota Corolla that day and when he got home he parked it in the double garage behind the Honda CRX. As the appellant approached the house he saw his neighbour, Sam Vitaliti and his cousin, Vince Mazzotta (616). His mother and father were at home when he arrived. The appellant denied going to Burwood or Strathfield Station. The appellant had a shower and read the paper. His sister arrived home at about 5.45 pm, and he did not go out at all that evening. He denied telephoning the deceased on the night of Tuesday 28 March 1995 and arranging to meet her (618). 76    The next day the appellant's sister telephoned him at work and told him that the police wanted to interview him. He left work early at about 4 pm. He went home and waited for about an hour for his sister to come home. He then went to buy cigarettes and when he returned, his sister and cousin were at the house. They then went to the Police Station. 77    As already noted, the Crown case was put on the alternative basis that either the appellant killed the deceased himself or he arranged for someone else to do it. Besides giving the jury the usual directions as to circumstantial evidence (the need to exclude any explanation consistent with innocence) his Honour (at SU p 8) also directed them that there were four "essential circumstances" of which they needed to be satisfied beyond reasonable doubt, these were "links in the chain" rather than "strands in the rope" (see Shepherd v The Queen (1990) 170 CLR 573) and that these four "essential circumstances" were:

1. That on the evening of 28 March 1995 Frances Tizzone and John Serratore arranged to meet on the following evening.
2. That the appellant left work early between 3.45 and 4 o'clock on 29 March 1995.
3. That the deceased was killed on 29 March 1995.
4. That the deceased was in the accused's Honda CRX motor car shortly before her death.

78    The principal submission on behalf of the appellant was that it was not reasonably open to the jury to be satisfied beyond reasonable doubt of any of those four "essential circumstances", and that accordingly the verdict was unsafe and unsatisfactory and was unreasonable, and could not be supported, having regard to the evidence.

First Essential Circumstance - That in a Telephone Call on the Evening of Tuesday 28 March 1995, the Deceased and the Appellant Agreed to Meet the Following Evening.

79    Antonella Tizzone, the deceased's sister said that on 28 March she overheard the deceased speaking on the telephone saying, "I don't want to meet you . . . why are you speaking to me this way . . . okay I'll meet you tomorrow afternoon after uni at the station, I will bring the card but make sure you bring the bag". She said that she did not know that at the time her sister was back in a relationship with the appellant, her voice sounded "sort of scared", but she had heard her use that tone of voice previously when speaking to the appellant (151-152). 80    Her mother, Patricia Tizzone, said (71) that on the evening of the 28th she had a conversation with the deceased who told her that she did not wish to take the car the following day, that she had spoken to the appellant on the phone and they had arranged to meet in the afternoon at Strathfield Railway Station, that the appellant had agreed to break up the relationship, that they would just remain friends, and he was going to give her back a bag that he had of hers and he wanted back a Valentine's Day card; and she arranged with the deceased for her to telephone from Strathfield Railway Station after she finished the meeting with the appellant so that she or her father could pick her up. 81    There were a number of difficulties with Antonella's evidence. Firstly, the references to, "Why are you talking to me this way" and "I will bring the card but make sure you bring the bag" were not in her original statement made to police on 4 April 1995 but first appeared in her later statement on 21 April 1995 or in her evidence at the Committal on 13 February 1996. Standing by itself I would not regard this discrepancy as significant. However, in his statement to police on 4 April 1995 (148) the deceased's father, Santo Tizzone, said that Antonella told him on the following day (30 March) that she heard the deceased talk over the phone on the evening of the 28th and she was arguing with this person about meeting him the next day after university but went on, "Antonella did not take much notice because she didn't think it was John on the other end of the phone", yet in her evidence Antonella said that she had reported to her mother that she "thought she was speaking to John" (159). 82    In cross-examination her answers were unimpressive, she answered, "not sure" to a number of propositions, including whether she told her father on 30 March of the telephone conversation or who she told, whether she told her father she did not think it was the appellant on the phone, whether on the evening of the 29th when they were worried about her sister not coming home she reminded her mother of the phone call, whether she told the police about it that night, and whether she spoke to police officers who came to the house the following morning. 83    There were also major difficulties with the mother's evidence. When the deceased did not ring at or shortly after 6 pm for someone to go and pick her up, she became concerned. When they had not heard anything by about 8.00 pm she rang and spoke to the deceased's friend, Rima Abou-Raad, who told her that she had last seen her running to catch the 4.20 bus at the university, so at about 8.30 she and her husband and Antonella went to Burwood Police Station where they saw Constable Hall and reported that she had not come home, and they told her of the previous problems with the appellant. According to Constable Hall, they told her that they were worried as to where she could be, they were not aware how she was getting home that night, and they were worried in light of her previous relationship with the appellant as to her welfare (212), but Mrs Tizzone and Constable Hall both agreed that at no time did anyone mention that the deceased had arranged to meet the appellant that afternoon at Strathfield Station on her way home. Constable Hall telephoned the Serratore household, spoke to the appellant and asked him if he knew where the deceased was, and he said in effect that no he had not seen her and because of the Apprehended Violence Order he was not permitted to see her (210-11). The Tizzones then returned home. 84    At about 10 pm Mrs Tizzone telephoned the Serratore home herself. She first spoke to the appellant's sister who said the appellant was home when she had arrived home by 6 pm so he must have been home by about a quarter to 6. She then spoke to the appellant (74) and asked, "Are you sure you haven't seen or heard from Frances at all today?" to which he replied that he had not seen her, the last time he had seen her was in December, but that he had seen her once at a party (namely at Jadranka Vulic's). She did not say anything to him about any proposed meeting between them that day. Her explanation was that she wanted him to tell her himself that he had met her after she asked him, but he did not. She was cross-examined as to why she had not mentioned the planned meeting to Constable Hall (77 & 78) and her answers were particularly unconvincing. Similarly her answers were unconvincing as to why she did not mention it in the telephone call to the appellant or when speaking to his sister at about 10 pm (80). 85    She also told the police that they did not know how the deceased was getting home, rather strange if an arrangement had been made for her to telephone from Strathfield Railway Station after the meeting to get a lift from one of her parents. The mother's evidence is also inconsistent with that of the father who said that the mother told him that she had rung Rima and been told that she would be late and was expected home between 7 and 7.30 pm which was the normal time she arrived home when she had late lectures (142). Then no member of the family mentioned the proposed meeting when Constable Gregory came to the house about 2.30 am on 30 March, and in view of the fact that when the appellant was interviewed by Detective Williams on the evening of the 30th (Ex. G) he was not asked any questions about the proposed meeting, I consider it clear that no member of the family told the detectives about such proposed meeting when they came to the house at about 7 am on the morning of the 30th. 86    I find it incredible that if the conversation between the deceased and her mother had taken place the evening before as the mother claimed, so that the mother was aware of an arrangement for the deceased to meet the appellant at Strathfield Railway Station after university, and she knew from Miss Abou-Raad that the deceased had left the university, but she had not telephoned to be picked up, the first thing that the mother would not have told the police when they visited Burwood Police Station at 8.30 pm would not have been her knowledge of the proposed meeting. Similarly, I find it incomprehensible that when she telephoned the appellant herself she did not refer to the proposed meeting. Her explanations for not doing so I find totally unconvincing. 87    It may well be that Antonella's evidence of overhearing a telephone call is substantially true, and that she did not tell her parents either because she was not aware that the relationship was ongoing, or if she was aware that she did not believe the parents were aware and did not want them to know, but this is pure speculation. We do know that the deceased had declined a lift from Miss Rima Abou-Raad and used the excuse that she was going to visit a sick relative but there was no evidence of any sick relative and Miss Abou-Raad was not aware that the relationship between the deceased and the appellant had been resumed and the evidence of the fibres in the car is strong evidence that a meeting took place, so there may have been a meeting arranged but the evidence of the family members about the arrangements for the meeting to which I have referred contains discrepancies, displays inaccuracies, is tainted and otherwise lacks probative force in such a way as to lead me to conclude that even making full allowance for the advantages enjoyed by the jury, it was not open to the jury to be satisfied beyond reasonable doubt that the mother knew on the evening of 29 March 1995 of any meeting arranged for the following afternoon.

Second Essential Circumstance - That the Appellant Left Work Early Between 3.45 and 4 o'clock on Wednesday 29 March 1995.

88    The appellant was at the time employed by John O'Donnell Customs Agency at Ocean Street, East Botany, the principal of which firm was John Cecil O'Donnell, who said the appellant's nominal working hours were 8.30 am to 4.30 pm and his duties included deliveries of packages to any area within the Sydney Metropolitan area. One of his employees was Sally Bower who was married to Damien Bower and he recalled her husband coming to the business premises and moving furniture around the office one day during the week commencing 27 March, but he could not recall which day. He recalled allowing the appellant to leave early one day during that week, about 10 to 4 or 4 o'clock but he could not say which day it was (406). On Friday 31 March when the appellant came to work he was upset and said his girlfriend, whom he had not spoken to for a couple of days, had been kidnapped and the police thought he had done it and had questioned him at the Police Station for a few hours the previous evening, and that the police had been following him to work, and Mr O'Donnell sent him home during the morning (407). 89    Sally Bower said that during the week of 27 March the appellant worked each day except Friday, her husband came to the work place twice during the week, once on the Wednesday and she was not sure whether the other day was the Tuesday or the Thursday. One day he was there to help John O'Donnell move furniture and the other day he was waiting to pick her up because he had been to the hospital in the morning, but she was unable to recall which day was which (502-504). 90    Damien Bower, gave evidence that he went to his wife's workplace at about 3.15 pm on Wednesday 29 March and saw the appellant leave work that day between 3.45 pm and 4 o'clock (510). He recalled the particular date because he had attended the hospital at HMAS Penguin and had a blood sample taken by a Dr Gray whose hands were shaking when he took the sample; he had lunch with friends after having the blood sample taken and then went to his wife's work (504). He said he noted the time the appellant left because he and his wife were angry because as a result of the appellant leaving early they were unable to do so. He then attended the hospital on the following day, Thursday 30 March and was told Dr Gray was unavailable (he had had a stroke the previous day), and he then had another blood sample taken in the pathology department (510). He was cross-examined vigorously about inconsistencies with previous statements and previous evidence and confronted with the naval and hospital records, but did not vary his evidence, and insisted that Wednesday 29th was the day that he went to hospital in the morning and that the appellant left work early. 91    Danielle Seidl was another employee of Mr O'Donnell who said (413) that during the week commencing 27 March she saw Damien Bower in the office on the Wednesday but she said, "I can't really remember now but when I look back at my statement I do recall I had a conversation with Sally who I was working with and he was ill and had to go for blood tests and she told me it was on the Wednesday". She remembered there was a day when Damien Bower moved furniture about the office. She thought it was the day after he had the blood tests. Asked about the time the appellant finished work during that week, she replied, "no I am not a hundred percent sure but I know on the Wednesday that he and Damien was in the office, he was quite ill and I remember him wanting his wife to come home early, and John (i.e. O'Donnell) let John Serratore go home early, but I can't remember what time of the day it was". 92    Catherine Cavanagh, the pathologist from HMAS Penguin produced the relevant naval and hospital records relating to Mr Bower (Ex. 19). She said that Dr Gray had collapsed at his desk mid-morning on 29 March, having suffered a stoke, and died a few weeks later. The pathology records indicate that a sample of blood from Mr Bower was received on 30 March 1995 but the request form was not signed. The Clinical Notes dated 27 March and signed by Dr Gray indicate that he is for review on 30 March and the document headed "Specialist Referral and Report" dated 28 March 1995, contains a referral by Dr Gray for pathology tests and has the note at the top left hand corner, also apparently in Dr Gray's writing "Thursday 0800 30.3.95" indicating that Dr Gray wished to see him for a review on the Thursday, and presumably wanted the results of the tests before then. The document also contains in a different handwriting, a reference number 300395-2 which ties in with the following document in the exhibit which is a worksheet and contains the request number 300395-2 and the surname Bower. It was explained that this indicates it was the second request received on 30 March, but Miss Cavanagh said the request form was not signed and the sample may have been taken the previous day and not delivered to the laboratory until the 30th (497). Miss Cavanagh was unable to say when the sample had been taken and she would not concede that the records necessarily indicated that it was taken on the 30th (499). The following document records the sample date as 30/3/95 but the time space is left blank. There is also a leave pass dated 28 March signed by Dr Gray granting Mr Bower leave from 28 March 1995 expiring on board HMAS Penguin at 0800 on 30 March 1995. 93    Luke Yatris (a friend of the appellant) said that on the 29th, he rang the appellant at his home at about 6.30 pm but the latter's mother told him he was not home (401), Luke left a message for the appellant to ring him back, but he did not (402). The appellant (617) and his mother (966) both said that he was at home when Luke rang but did not want to speak to him and he told his mother to tell the caller he was not home, which she did. 94    The appellant denied that he left work early on Wednesday 29 March and said the day he left work early was Thursday the 30th, and this was because during the afternoon he had received a message from his sister that the police wanted to speak to him and he accordingly went home. Both in his recorded interviews and in his sworn evidence at the trial he said that he left work on the 29th at about ten to five and arrived home at about 5.30 pm. His mother and father were already there (614), and he parked his Toyota Corolla in the garage behind his Honda CSX, his sister arrived at about a quarter to six (615). He said that as he approached the house he saw Sam Vitaliti and Vince Mazzotta outside in the street (616). 95    He said that on Thursday 30 March he got a call from his sister during the afternoon that the police wanted to see him and so he left work at about 4 o'clock, went home and was home for about an hour and then he went up the street to get a packet of cigarettes, and it was while getting the cigarettes that his sister arrived home and he was not there; they then went to the police station where they arrived at about 6.30, and the recorded interview started at 7.02 (620-21). His evidence was generally supported by his sister Barbara Calati (808-810, cross-examined 842-844) and his mother and father. The issue was therefore whether it was the Wednesday or the Thursday that the appellant left work early, he maintaining it was the Thursday and Mr Bower claiming it was the Wednesday. If it was the Wednesday there was sufficient time for him to come home, change motor vehicles, travel to Strathfield Railway Station and meet the deceased. There may not have been time to take her to Wakehurst Parkway at Frenchs Forrest and be back by 8.30 to 9 pm, when Constable Hall rang, but he could have had an accomplice. On the other hand, if the appellant in fact left work early on Thursday 30th (as he now claims) it is surprising that in his second recorded interview on 17 May 1995 (Ex. J) he did not refer to that fact in answer to QQ 141-143. 96    The jury was in my view entitled to reject the evidence of the appellant, his family members and the two neighbours; in particular in relation to the two neighbours their evidence was such as to arouse suspicion of collusion. The appellant said they both spoke to him on Saturday, 1 April, and they had virtually identical but separate conversations with him; but, and notwithstanding those conversations where they allegedly told him they had seen him get home at about 5.30 pm on the Wednesday, he did not report that to the police until his solicitor did so some considerable time later. Moreover, Mazotta said they were both out the front of Vitaliti's house leaning on the front fence when they saw the appellant come home (1025) whilst Vitaliti said they were standing at the front of his driveway at that time (1049). It was a remarkable coincidence that they had both started to watch the Channel 10 news at 5 o'clock as they always did, and after watching the headline items for about ten to fifteen minutes, they both went out the front at about the same time for the same purpose of watching their children play in the street. 97    The assessment of Damien Bower and his evidence of the early departure of the appellant on the Wednesday was a proper function of the jury, and generally speaking they would be entitled to accept him as a witness of truth if he so impressed them, but in this case there was the problem of the medical records. Miss Cavanagh was not prepared to assert that the records necessarily indicated that he was not at the hospital on the 29th and that the blood test was not taken on the 29th. There is support for at least one of the blood tests being done on Wednesday the 29th because Dr Gray's Specialist Referral Report had ordered an HIV test for Damien Bower as well as other tests and Miss Cavanagh knew that such tests only occurred on Monday, Wednesday and Friday (500). I have come to the conclusion that, although the records may not necessarily have been right, there was a distinct possibility that they were, and in the light of that distinct possibility it was not open to the jury to be satisfied beyond reasonable doubt that Mr Bower's blood test was taken on the morning of Wednesday the 29th, and therefore it was not open to the jury to be satisfied beyond reasonable doubt that the appellant had left work early at 4 o'clock on that date.

Third Essential Circumstance - That the Deceased was Killed on 29 March 1999.

98    Dr Botterill performed the post mortem on the deceased. He attended the Wakehurst Parkway on 2 April 1995 and observed the deceased's body at that location. He saw that the neck and chin were pushed forward so that the head was twisted backwards and there was a large wound to the front of the neck that had been caused by a small animal. At the post mortem he observed an injury to the right eye which might have been caused by local trauma to the side of the eye or face or by the petechiae coming together as a larger area of haemorrhage. The latter would be caused by asphyxiation (336). He also noted the presence of maggots in the head area of the deceased. These were sampled on 5 April and sent to the laboratory for investigation. He saw a bruise on the neck which in his opinion was caused within an hour before or after death and was consistent with a broad ligature being applied at that point (339). He also observed bruising to the lip, a number of multiple small abrasions over the left cheek, a 25 x 20 mm bruising over the scalp consistent with local trauma to that area, two areas of bruising over the right side of the cheek, one of which contained a finger nail scratch, and an abraded bruise on the left side of the neck which was consistent with being caused whilst defending oneself from strangulation; and all of these injuries he believed were caused within an hour before or after death. 99    His view was that the cause of death was consistent with strangulation (341) and this was suggested by the presence of bruising / abrasions over the left side of the neck, the areas of haemorrhage within the eyes, the additional bruises over the sides of the neck which were consistent with trying to prevent strangulation and the absence of any other explanation for the death (342). Defensive type injuries were also noted on the deceased's fingers (344). He concluded that death occurred between 29 March and 2 April 1995, but based on the degree of decompositional change, considered the most likely dates were 29 or 30 March (348). In evidence he maintained that 29 - 30 March was the most probable date but conceded that ascertaining the date of death is not a matter that could be approached with any great exactitude (348). He considered it "extraordinarily unlikely" that the deceased was still alive on the morning of 1 April (348). He could not completely exclude her being alive on 31 March, but thought it unlikely (348). There were no other wounds consistent with stabbing, shooting or other trauma. He said the decompositional changes suggested a post mortem period of four to five days, irrespective of the weather and the fact that the deceased was seen alive on the fifth previous day reduced it to the fourth which was 29 March (358). 100    Dr Peter Ellis, forensic pathologist, was called in the defence case. He based his opinion on photographs taken of the post mortem and where the body was discovered, he had read Dr Botterill's report, and also meteorological reports relating to daily temperatures. Based on his observations from the photographs of the extent of post mortem decomposition and to a lesser extent on Dr Botterill's report, he considered that death most likely took place two days prior to the body being found, that is on 31 March. He personally thought that earlier than 30 March was very unlikely (931). He was unable to nominate the cause of death but disagreed that the right eye injury was indicative of strangulation (932), although he was not able to say that she had not been strangled. He did not know the cause of death and said suffocation was a possibility. In cross-examination he conceded that death could have taken place as early as 29 March although he did not consider this likely (995). He also agreed that ascertaining the date of death is not a matter that can be approached with any great exactitude. Dr Botterill had had the advantage at about the time of the post mortem of discussing the subject with another pathologist Dr Cala, and Dr Ellis conceded that examination of the body and the scene itself was preferable to relying on photographs (see 983, 985). 101    Dr Levot, an entomologist, received the maggots sample by Dr Botterill from the body of the deceased and examined them. In his opinion, the eggs of those maggots were most likely to have been laid during the daylight hours of Friday 31 March 1995 (436), as maggots tend to lay eggs at the first available opportunity, but only during daylight hours. This would be consistent with the body being dumped on the evening of Thursday 30 March, but he conceded there were a number of variables, including uncertainty as to the actual species, the timing and extent of the refrigeration, uncertainty as to the temperature where the body was, and the small number of maggots and the small number of lavae examined (437). 102    Dr Dadour, a forensic entomologist, was provided with various materials including the report of Dr Botterill, the evidence of Dr Levot, a video of the body at the crime scene, enhanced photographs, and the two specimens of maggots given by Dr Botterill to Dr Levot, and he expressed the view that the time of placement of the body was about 42 hours before it was found, that is between the early evening of 31 March and 6 am on 1 April (637). Both entomologists agreed there were many variants that could affect their opinions, and that in different species, and even within species, there are different rates of growth. 103    There was evidence of alleged sightings of the deceased after her disappearance. Marie Ellen Wiltshire said that on Friday 31 March at about 4.15 pm she saw a girl in a car on the freeway near Berowra who appeared to be gagged and distressed looking out the rear window. The girl was in great distress, was in tears, had brown eyes and curly shoulder length dark brown hair. She almost immediately reported the fact to the police on the emergency number 000 (938-9) and the call was recorded (Ex. 17). On 2 April, her husband told her about a body being found near the Wakehurst Parkway at Narrabeen (940). She went to the Gosford Police Station, was shown some photographs and said that she was "one hundred percent sure" that the photos of Frances Tizzone were those of the person she had seen in the car (941). The vehicle was an older model Ford "faded red" (938). The difficulty about her evidence was that she was in a vehicle travelling south on the Gosford Freeway and the person she saw was in the back of a car parked at the side of a road looking through the rear windscreen, yet she purported to be able to describe her in detail including the colour of, and the fact of, tears in her eyes. Mrs Wiltshire was only shown photographs of the deceased and none of other persons of similar appearance. This tends to reduce the quality of her alleged identification. 104    John Gardiner was medically unfit to give evidence but his statements were read (1080-1082). He was an off duty police man at his home in Umina at about 9.30 pm on Friday 31 March, sitting in his bed listening to the news on his radio, when he heard a female voice screaming out from some distance away. He also heard a male arguing with her and the yelling and screaming becoming louder. He went to his window and saw a red Ford Falcon sedan in front of his next door neighbour's place approaching towards a roundabout at a street intersection and the male driver was swearing at the female passenger. The female was crying and looked distressed, calling out asking him to let her go. The Falcon had a red roof and the headlights were on. It had a "patchy faded red roof" (1081). He described the female as about 20 years of age with hair to shoulders which appeared to be permed giving it a wavy look, wearing a dark top, of Mediterranean or Middle Eastern appearance and Australian accent. The next morning he looked in the Sydney Telegraph and saw a picture of the same female person that he had seen in the red Falcon (this was a photograph of the then missing deceased) (1081). 105    In my view it was open to the jury to discount this evidence; both witnesses only had fleeting views and it is difficult to see how they could in the light and the circumstances of moving vehicles have an adequate view of the person they were referring to. In addition, the evidence concerning the fibres on the soles of the deceased's shoes (see Fourth Essential Circumstance below) could not have come from a Ford vehicle, and both of them referred to a vehicle of that make. 106    There was also the evidence of Betty Chown who was the Station Assistant at Doonside Railway Station and recalled selling a single ticket to Epping to a girl named Tizzone, between 4.30 and 5.15 on the afternoon of either 29 or 30 March (she was unable to say which). Statements were tendered by 13 young ladies with the same surname to say that they were not at Doonside on either day (Ex. EE). Moreover, the deceased told Rima Abou-Raad when she left university that she would be getting off the train at Burwood or Strathfield, and the person at Doonside was buying a ticket to Epping. It appears that all the deceased's friends lived in the Croydon Park area, and certainly not at Doonside, so the jury were entitled to form the view that it was inconceivable that the person to whom Mrs Chown was referring to was the deceased. She would have had no reason to go to Doonside, and if she was at Doonside, no reason to buy a ticket to go to Epping rather than to Burwood or Strathfield. Mrs Chown was not even sure which day it was that she sold the ticket. 107    One other factor which in my view is relevant to the date of death, is that not only was the deceased found fully clothed as she had been at university, but the back pack in which she carried her university notes and books, etc and the other bag that she took to university to carry her white coat and plastic gloves, along with her purse (which had apparently not been interfered with in any way) were all found very close to her body. I regard this as a significant factor indicating that her body was dumped very shortly after she was abducted on her way home from university. 108    Having regard to the whole of the evidence I am satisfied that it was open to the jury to be satisfied beyond reasonable doubt that the deceased met her death late on Wednesday 29 March, or very soon thereafter, and no later than 30 March.

Fourth Essential Circumstance - That the Deceased was in the Appellant's Honda CRX Motor Vehicle Shortly before her Death.

109    To prove this point, the Crown relied on evidence which it claimed matched the fibres adhering to the soles of the boots the deceased was wearing, with the fibres in the appellant's motor vehicle, which fibres and carpet were unique to that model of car and not found elsewhere in Australia. 110    Constable Layton, the Crime Scene Examiner, attended the body about 4.15 on Sunday 2 April and took a number of photographs (Ex. B). He noted there were fibres on the boots the deceased was wearing and removed a number of them. He said the fibres appeared to be adhering to the scuff marks on the soles and most of them were sitting up off the sole erect (182-3) and he subsequently took samples of the carpet from the various sites at the university identified to him by Rima Abou-Raad that the deceased had visited on 29 March (183). 111    The fibres removed by Detective Layton made their way to an analyst, Mr Wagner, who carried out infra red spectroscopy and identified three types of artificial fibre, namely grey polypropylene, blue polypropylene, and black polyester (244). On 28 April he received further items from the police, namely the fibres collected from various locations around Macquarie University. He compared these fibres with those from the boots and found that none were similar (245). He was also provided with the boots found on the body of the deceased and found a number of fibres still adhering to the soles thereof. These fibres again comprised the grey polypropylene, blue polypropylene and black polyester fibres (246-7). 112    He subsequently received and himself took samples from the carpet of the appellant's Honda CRX motor vehicle, he counted the fibres from the samples provided to him, carried out tests and found on microscopic examination that the fibres found on the boots of the deceased and the fibres obtained from the carpet on the floor in the front of the Honda were similar (252). He also carried out a count of the fibres and he found that the carpet on his count contained 53% grey polypropylene, 18.43% blue polypropylene, and 26.4% black polyester fibres. There was evidence from the manufacturer of Honda that the constitution in the carpet of the Honda CRX was 60% grey polypropylene, 15% blue polypropylene and 25% black polyester, these results being very similar to those found by Mr Waight when he did his examination of the fibres. 113    He expressed the view that his testing showed that the three types of fibres which had been obtained from the deceased's boots were the same as the sample fibres obtained by himself from the floor of the front seat of the appellant's car (254). Further testing led him to the conclusion that fibres similar to those in the carpet in the Tizzone's vehicle were not found on the deceased's shoes, and nor were fibres from all the samples that had been taken at Macquarie University (257). 114    He also conducted experiments in relation to adherence, that is the ability of fibres to be picked up by shoes and also resistance to the loss of fibres from the soles of shoes (258). For this purpose he had a female assistant wear the deceased's left shoe and a new right shoe, and as a result of those experiments he concluded that all three of the fibres found in the carpet on the front floor of the appellant's Honda CRX were easily transferred to the soles of the shoes of the passenger, and just as easily lost once the passenger walked on a hard surface (264). 115    There was evidence that this carpet was manufactured in Japan and was used only in 1990 or 1991 Honda CRX vehicles, and a schedule (Ex. GG) was tendered showing that the owners of 291 of such vehicles claimed not to have been in the Frenchs Forest area between 29 March and 2 April 1995. Only 296 vehicles of the 1990 / 1991 model had been distributed in Australia (Ex. FF). 116    In cross-examination, Mr Waight confirmed that information was now available to him which indicated that the Honda CRX carpet had four rather than three types of fibres, in that of the 60% grey polypropylene, 40% were 15 denier, and 20% were 7 denier, a fact that he had not taken into account (266). All the grey fibres he found he considered 15 denier, but he did not consider that this affected the validity of his conclusions (270). His attention was also drawn to the fact that the fibres on the boots and in the car were in different proportions, but again he did not consider this was a significant factor (273-274, 286). 117    Dr James Robertson, Director of Forensic Services, Australian Federal Police, gave evidence that he had been involved in studies relating to the transfer of fibres under different situations, and those studies showed that fibres are not retained upon the soles of shoes for more than a few minutes after being walked upon, regardless of the nature of the sole (302), and he expressed the opinion that it was unlikely the deceased could have walked for more than about 5 minutes, if at all, after leaving the source of the transferred fibres (307). He was also questioned about the difference in the variation in the percentage of different fibres which might be transferred from a carpet as compared to the percentage each of those fibres has in the source carpet and said that tests carried out showed that the percentage of fibres transferred was very variable, and indeed the composition of the actual carpet did not bear any relationship to the way in which the fibres were transferred by the shoes (309). 118    Sara Jones, a podiatrist, had examined the wear patterns on the deceased's shoes and said that the fibres were located on areas which would come into direct contact with the ground during normal gait or walking (332) and therefore she would expect that normal walking would have removed the fibres from the shoes (333). 119    Mr Pinakin Chaubal, who is the Manager of the Testing Services Division, Melbourne Institute of Textiles, gave evidence that there would have been virtually no polyester carpets such as that found in the appellant's vehicle in Australia in April 1995. He said that polyester is not used in Australian carpets particularly in the commercial field (377) and he had not come across a blend of polypropylene and polyester fibres in a carpet (378) either commercial or residential. He also expressed the opinion that it is unlikely that the blend of fibres lost from a carpet is identical to the blend in the carpet (378). 120    John Cauce, a chartered textile technologist, gave evidence that the fibres in the carpet installed in Honda CRX 1990/91 model vehicles have never appeared in any carpet installed in any Australian made car (476), such carpet has never been manufactured in Australia (476), and was a very unusual blend of fibres. He also said that the lighter the denier in carpet fibres, the greater the reaction to heat so, in relation to the Honda CRX carpet, the effect of the application of heat would be that the 7 denier fibre would shrink into the base of the carpet, the black polyester would be unaffected and the 15 denier fibre would shrink down only slightly. As a result it would be very difficult to remove the 7 denier fibre from the carpet (478-9). 121    The fact that this type of carpet was exclusive to Honda motor vehicles was also relevant to a Crown submission, already noted, that Mr Gardiner and Mrs Wiltshire could not have seen the deceased on 31 March, because the person they saw was in a red Ford. 122    The defence called Dr Ross Griffith, a textile technologist, who expressed the view that the conclusion that the fibres on the deceased's boots were from the Honda CRX was questionable for two reasons: a) there was no fine denier polypropylene found on the boots; and b) the results of the transfer / scuffing trials of Mr Waight were sufficient to query the proposition that the fibre came from the Honda CRX carpet. He said (1090) that he found Mr Waight's figures to show a surprisingly high proportion of polyester fibres on the boots from the proposed source of the Honda CRX carpet specified and as tested by Mr Waight in his various trials. He said there were alternate fibre sources from carpets which could have transferred to the boot and in particular 6 denier black polyester is extremely common and is used extensively in the Australian automotive industry "at least to produce boot liners" (1091). He also said (1092) that the failure to identify the different denier of grey polypropylene raised a serious doubt as to whether the fibres on the boots came from the relevant carpet. He sat in the Honda car and had the mat on the floor in front of him and tried to move it with his feet and by hand, and found it difficult to move and noted it was rubber backed (1093). In cross-examination, he agreed that Dr Robertson was a leading world expert in relation to transference and that when fibres are shed from a carpet they are shed differentially from their percentage within the carpet (1100, 1103). He also conceded that he had not used any information available from Dr Robertson in coming to his conclusions (1105) and ultimately (at 1106) said: -

"I have not said that this is open and shut and there was not transfer from this carpet to that boot. I have simply said there has been two very observable differences in the information available one in relation to the proportion of fibres polyester in particular and secondly that no fine denier polypropylene was found. This brings into clear question in my mind the validity of the conclusion that of necessity one set of fibre data is linked to the other."

123    Before this Court, significant reliance was placed on the failure of Mr Waight to identify four instead of three different fibres, treating the different denier grey fibres as two different fibres, also the different proportion of black polyester in the carpets (25%) and on the boots (73%). However, in my opinion these matters were thoroughly explored in the examination and cross-examination of the various witnesses, and both were explained in a way that could have satisfied the jury that they were not significant. 124    It was also argued that as the Honda had mats made of a different fibre composition on the floor between the passenger seat and the firewall, the shoes on a passenger in the front seat could not have picked up fibres from the carpet, but it was open to the jury to consider that if such passenger was being strangled, or otherwise under stress, she might well move around and thereby move the mat, or alternatively, some of the fibres could have been picked up from the carpet which protruded from underneath the edges of the mat. 125    In my opinion, there was ample evidence on which it was open to the jury to be satisfied beyond a reasonable doubt that the fibres on the deceased's shoes came from the appellant's Honda CRX and that the remaining fibres on the shoes indicated she had not walked for more than about 5 minutes after leaving the vehicle. It was therefore open to the jury to be satisfied beyond reasonable doubt that the deceased was in the appellant's motor vehicle shortly before her death.

Conclusions

126    I am therefore of the opinion that it was not open to the jury to be satisfied beyond reasonable doubt that the appellant and the deceased had agreed in a telephone call on the evening of 28 March to meet the following afternoon, nor that the deceased left work early on 29 March, although there was evidence which supported both propositions; but it was open to the jury to be satisfied that the deceased most likely died on the evening of 29 March and certainly no later than 30 March, and to be satisfied beyond reasonable doubt that she was in the appellant's motor vehicle shortly before her death. 127    In determining whether there is a case to answer, the question to be decided is not whether on the evidence as it stands, the accused ought to be convicted, but whether on the evidence as it stands, he could lawfully be convicted: May v O'Sullivan (1995) 92 CLR 654 at 658. In considering such an application, the judge does not consider the probative value of the evidence as a whole, but only that evidence which, if believed and uncontradicted, could be accepted as proof of the Crown case: R v Towers (1984) 14 A Crim R 12 at 14, Doney v The Queen (1990) 171 CLR 207 at 214-5, R v R (1989) 18 NSWLR 74; and in a case of circumstantial evidence, such as the present, a finding of no case to answer is not open if there is evidence in support of the Crown case upon which the accused can be convicted, even though a reasonable hypothesis consistent with innocence can be postulated: R v JMR (1991) 39 A Crim R 39 at 44. I am satisfied that there was a case to answer and ground of appeal 2 is not made out. 128 In relation to grounds 6 (i) to (v) his Honour directed the jury that before they could find the appellant guilty on either of the alternative bases alleged by the Crown, it was necessary for them to be satisfied beyond reasonable doubt of the four "essential circumstances" which he identified. With due respect to his Honour, I consider that this direction was not appropriate, and unduly restricted the Crown case. Bearing in mind that the appellant was under police surveillance from late on the 29th, the proposition that the appellant himself killed the deceased required proof beyond reasonable doubt that he left work early on that day, that the deceased was in his car shortly before her death and that she died on the evening of the 29th, but not necessarily that they arranged in a telephone call the previous evening for a meeting to take place. If she was in his car that evening shortly prior to her death, and he had left work early, it was open to the jury to conclude that they had met, but it was not necessarily pre-arranged in a telephone call the previous evening overheard by her sister and discussed with her mother. Her declining of the lift from university offered by Miss Abou-Raad clearly indicated that she was intending to meet someone. 129 On the other hand, the alternative Crown case did not require such specific proofs. It did require something beyond the history of the relationship and the alleged kidnap plot of the previous November as described by Mr Radwan; but the fact that the deceased was in the appellant's motor vehicle shortly before her death, if proved to the jury's satisfaction beyond reasonable doubt, would itself have provided the necessary link. It was not necessary for this alternative case to establish the arrangement of the meeting nor that the appellant left work early on the 29th, although this case was considerably strengthened if the Crown was able to satisfy the jury that she had died on that day. 130 But the jury were directed by his Honour that they could only convict if satisfied at least that all four "essential circumstances" or intermediate facts were established beyond reasonable doubt, and in my view, they could not, acting reasonably, have been satisfied to that standard of two of those matters; and accordingly they must have misunderstood or not followed the directions given by the trial judge. 131 The Criminal Appeal Act 1912, s 6(1) provides that on an appeal against conviction, the Court shall allow the appeal if it is of the opinion:

(a) that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence, or
(b) that the judgement of the court of trial should be set aside on the ground of the wrong decision of any question of law, or
(c) that on any other ground there was a miscarriage of justice.

132    The High Court has recently drawn attention to the necessity to pay proper attention to the wording of the section when considering appeals: Fleming v The Queen [1998] HCA 68, (1998) 158 ALR 379 at [12], see also R v Giam [1999] NSWCCA 53 at [32] - [39]. 133 In my opinion, the direction that in order to convict on either basis of the Crown case required proof beyond reasonable doubt of all four so-called "essential circumstances" constituted a wrong decision on a question of law, but it was a decision which was unduly favourable to the appellant and would not justify the upholding of the appeal on that ground. 134 An appeal may also be allowed in accordance with the section if the verdict of the jury is unreasonable or cannot be supported, having regard to the evidence. In my opinion there was a considerable body of evidence on which it was open to the jury, acting reasonably and having regard to the evidence, to find the appellant guilty on one or other of the bases alleged by the Crown. Without being exhaustive, this evidence included that she had been in his car shortly before her death, the evidence of the relationship between them including his violence towards her, his obsessiveness and jealousy in relation to her, his approach to Radwan to have her kidnapped and killed, and his statement to Radwan in February 1995 that he was still "going to do it," the lies he told in his recorded interviews about not seeing her since November (he gave an explanation for these lies, but it was up to the jury to assess the explanation) and that, although claiming to be in love with her, when made aware of her disappearance he made no offer to help look for her, no approaches to their mutual friends to see if they knew anything about her whereabouts, nor did he make any enquires over the next few days to ascertain whether she had been located, nor disclose the true nature of their relationship. Compare Plomp v The Queen (1963) 110 CLR 234. 135 The third ground on which an appeal may be allowed is that on any other ground there has been a miscarriage of justice. In my opinion, as the jury could not, acting reasonably, have followed the trial judge's directions and found all four "essential circumstances" proved beyond reasonable doubt, there has been such an irregularity as to constitute a miscarriage of justice, or to use the language that was current prior to Fleming, such an irregularity as to render the verdict unsafe and unsatisfactory, notwithstanding that it was on the evidence reasonably open to the jury to convict: R v Anderson (1991) 53 A Crim R 421 at 449, R v Clough (1992) 28 NSWLR 396 at 402. To adopt the words of the High Court in a quite different case, the court

"will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand . . . because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner it has been reached, the jury may have been mistaken or mislead": Davies and Cody v The King (1937) 57 CLR 170 at 180.

136    On upholding an appeal against conviction, the Court has power, to enter a verdict of acquittal (s 6(2)), or order a new trial (s 8(1)). The factors relative to whether a new trial should be ordered have been considered in a number of cases, including Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627, King v The Queen (1986) 161 CLR 423, Clough, Anderson and Giam. In Anderson at 453 Gleeson CJ (although not ordering a new trial in the particular circumstances of that case) said:

"The principal considerations in favour of ordering a new trial . . . are the public interest in the due prosecution and conviction of offenders, the serious nature of the alleged crimes, and the desirability, if possible, of having the guilt or innocence of the appellant finally determined by a jury which, according to the constitutional arrangements applicable in this State, is the appropriate body to make such a decision."


In a case such as the present where the appeal succeeds on the ground of irregularity and there was evidence on which, acting reasonably and in accordance with appropriate directions, it would be open to a jury to convict, I consider the appropriate course is to order a new trial.

Grounds of Appeal 5, 5A, 5B, 5C - Failure to give Warnings.

137    At the trial the Defence sought a number of warnings from the trial judge. His Honour was specifically asked to direct the jury that it could be dangerous to accept the evidence of Patricia Tizzone and Antonella Tizzone as to the alleged telephone call of 28 March 1995 and the alleged arrangement whereby the appellant was to meet the deceased; that it could be dangerous to accept the evidence of Damien Bower that the appellant left work early on 29 March 1995; and that it could be dangerous to accept the evidence of Patricia Tizzone and Bassam Radwan as to the alleged soliciting to murder. 138    These pieces of evidence did not come within any of the categories specified in the Evidence Act 1995, s 165(1) but that does not exclude the necessity to give a warning in an appropriate case. 139 However, apart from the evidence of Bassam Radwan, this evidence did not belong to any particular category that may, because of its nature, be unreliable, but was merely evidence which was challenged by the defence; in the case of the evidence of the sister and mother on the basis of alleged inconsistencies with their subsequent conduct, and in the case of Damien Bower on the basis of the relevant medical records. These were pure questions of fact and were properly matters for the jury. They did not involve considerations of particular issues which would be well understood by lawyers, but may not be so well understood by, or familiar to, lay persons, as are those matters specified in s 165(1): compare Bromley v The Queen (1986) 161 CLR 315 at 323-4 per Brennan J. The trial judge summarised the relevant evidence and it may be assumed that Counsel addressed on these matters in some detail. In my view no further warnings or directions in relation to these matters were necessary or appropriate. In any event, his Honour did direct the jury that the evidence of the mother and sister may be unreliable because of their close relationship to the deceased (SU 17). 140 As to the evidence of Bassam Radwan, s 165(1) did apply because the witness had been charged with a number of burglary offences and when charged had given an undertaking to give evidence in accordance with his statement and had thereupon been granted an indemnity; but in respect of his evidence, his Honour gave the jury an appropriate warning (SU 17). 141 It was also submitted (ground 5) that the jury should have been warned that it would be dangerous to convict on the evidence before the jury. As I have already indicated, I consider there was evidence upon which it was open to the jury, acting reasonably, to convict. In those circumstances such a warning would have been totally inappropriate and an unwarranted interference in the jury's role as the tribunal of fact.

Ground of Appeal 4.

142 Finally ground 4 was that the trial judge erred in refusing to admit into evidence a running sheet created 9 April 1995 relating to the information reported to police by Mrs Wiltshire. This was tendered as truth of its contents to corroborate her evidence. The witness had given her account orally before the jury, she had not been attacked on the basis of recent invention or that the evidence was a fabrication, but merely that it lacked reliability. The running sheet was not admissible under s 108 of the Evidence Act 1995 because it was not suggested her evidence was fabricated but merely that she was mistaken, and it was not admissible under s 69(2) because it had been made in connection with an investigation leading to a criminal proceeding: s 69(3)(b). It was submitted it was admissible under s 66(2), but it added nothing to her evidence, and was therefore not probative of anything.

Order

143    I therefore propose that the appeal be allowed, the conviction and sentence set aside and a new trial ordered.

IN THE COURT OF
CRIMINAL APPEAL

No. 60675 of 1998 CORAM: DUNFORD, J.

GREG JAMES, J.
SMART, AJ.

FRIDAY, 26 NOVEMBER 1999

REGINA v. JOHN SERRATORE

JUDGMENT

144    GREG JAMES, J: I have had the advantage of seeing a draft of the judgment of his Honour Mr. Justice Dunford and am grateful to his Honour for his review of the case and summary of the evidence. 145    I agree with the orders proposed and with his Honour's reasons for those orders.

The new trial

146 In relation to the discussion of the matters in respect of the order proposed by his Honour for a new trial, I add to those authorities to which his Honour refers, that of Parker v. The Queen [1997] HCA 13; (1997) 186 CLR 494. It is my view that the evidence of and relating to the soliciting of Radwan or others to murder the deceased might be used other than merely as relationship evidence and that at least as far as potential liability as an accessory before the fact is concerned the "four essential circumstances" approach was too restrictive. Referring to the test for a new trial considered in Parker (supra), I am of the view that the order proposed by his Honour for a new trial would not compel the appellant to meet a "quite different case to that presented against him" originally. Such a trial could proceed with the evidence of the soliciting available to be used particularly to support the inference of procuring, on the basis of the appellant being liable as an accessory before the fact. I also consider the trial could proceed on the basis he was a principal, notwithstanding the view Dunford, J. takes, and I share, that it was not open to the jury to find certain of the four essential circumstances. There would still remain sufficient evidence for there to be a case against him as a principal. That evidence could include soliciting, which supports the motive personally to kill. I am of this view notwithstanding the views Dunford, J. has taken and with which I agree on the proof of the four circumstances. There is a difference between no evidence leading to no case and some evidence leading to what used to be called an unsafe and unsatisfactory case. That difference reflects the difference in the function between a trial judge and that of this court. 147 Even considering the matter from the "unsafe and unsatisfactory" viewpoint, in my opinion, on the analysis made by Dunford, J., with which I agree, even if (putting aside the evidence of soliciting) it was not open to the jury to be satisfied the appellant was the actual assailant, or was present assisting, if those propositions required proof beyond reasonable doubt of all of the four essential circumstances, nonetheless it was open to the jury to be satisfied beyond reasonable doubt that the appellant had procured the killing of the deceased. 148 I have concluded generally that there need be no other change to the way the case was presented to the jury and that the form of indictment was entirely proper. From that statement I except the matters I have already referred to, the directions on the matters of which the jury had to be satisfied on each basis and the direction as to unanimity. 149 The direction that the jury had to be satisfied beyond reasonable doubt of the four essential circumstances for any finding of guilt, whether it was on either of the bases advanced by the Crown, was in my view at most only appropriate to the liability of the appellant as a principal since it is only to the appellant's presence at the killing those circumstances went and unlike presence for a principal, absence is not a necessary requirement for liability as an accessory. 150 For the reasons given by Dunford, J. when examining the evidence supporting the four essential circumstances for liability on the basis the appellant was a principal, for that basis to be left to a jury, consideration will need to be given to whether there is, in the evidence at the new trial, sufficient for a jury to find guilt if the case were that it would be essential the jury find those circumstances so that the appellant's presence, at least, at the killing would be, in their view, established. 151 It follows that if the case is to be left to the jury on the alternative basis of the liability of the appellant as a principal, a direction that the jury had to be satisfied beyond reasonable doubt of such matters as would enable them to find his presence at the killing would be necessary in respect of that basis. It may be that an appropriate direction would be that they must be satisfied beyond reasonable doubt of all of the four essential circumstances. In any event, whatever form a direction on that basis might take, it would be necessary, since an explanation exculpatory of the accused from liability on that basis is being advanced, for some such appropriate direction to be given. But its terms should limit its effect to the basis to which such exculpatory explanation might apply. 152 Should a new trial proceed on both bases, I consider that the jury should be directed that they need to be unanimous as to their verdict, and each juror needs to be satisfied beyond reasonable doubt of all the necessary elements of the basis on which guilt is found. But they need not be unanimous as to the different bases for that verdict, provided that they are satisfied beyond reasonable doubt that the appellant was at least an accessory before the fact. If they are unanimous as to that, the law's requirement for unanimity on verdict will be met. 153 In addition to those matters, it will be necessary for a trial judge to consider carefully how the evidence relating to the solicitation of Radwan and others might be used in the light of the evidence as it comes forward at any new trial.

The form of the indictment and the two bases

154    I turn now to that first ground of appeal. It is as follows:-

"1(a) His Honour, Barr, J. and the learned trial judge were in error in not requiring the Crown to plead the alternative methods for murder in two alternative counts, one charging the appellant as a principal and one charging him as a principal in the second degree or as an accessory before the fact.
1(b) His Honour the learned trial judge was in error in permitting the alternatives to be considered by the jury."

155 Submissions of a like kind to those put in support of this ground were made and argued at and before the trial as well as before this court. In the light of what I have said about what is available to support both bases when discussing new trial orders, I will deal with those submissions on the basis that there is evidence to support both bases, and the position is unlike that in Regina v. Sparrow (1980) 51 CCC (2d) 443; Regina v. Cloutier (1980) 48 CCC (2d) 1 and Regina v. Rahman (1981) 59 CCC (2d) 323, which cases turned on an absence of sufficient evidence of one basis of liability which was, as a result, wrongly left to a jury. 156 The arguments in support of this ground, to a certain extent, impacted on the submission made at trial and here, that there was no case to answer, and that made here that the conviction was not supported by the evidence, in that it was put that the jury could not be or should not have been satisfied beyond reasonable doubt of the four essential circumstances and it would follow that they could not be satisfied that the accused personally killed the deceased or, as a logical alternative, and having regard particularly to the possibility he was the actual murderer, that the accused was an accessory before the fact or principal in the second degree to the act of killing performed by another. 157 The point was raised before Barr, J. in advance of the trial and written submissions and further submissions in writing were provided both to Barr, J. and to the learned trial judge, both of whom delivered considered judgments rejecting the submissions of the appellant. 158 Although at one point resort was made to a suggestion the single count employed in the indictment "did murder" was bad for duplicity, the argument made really turned on the basis of the asserted incompatibility that I have described, the vice lying, so it was said, in the prospect that the jury might not be unanimous as to the basis of guilt, that the asserted evidentiary deficiencies of each case on each alternative basis might be obscured, that the law of indictments would preclude the two bases being asserted under a single count of murder or that sentence might proceed on a false premise. 159 The unattractive submission appears to be, that, where it is not possible to distinguish beyond reasonable doubt whether the accused killed, helped or procured the killing, he had to be acquitted even though there was a sufficiency of evidence to enable a jury to find those matters. 160 The challenge is not merely based on a technical point of pleading. It is contended that it was not open to the prosecution to make the alternative cases in the one proceeding. The submission is not merely put on a technical procedural basis but relies on the law of complicity and the requirements of law and practice as to the framing of indictments as defining the ambit of what cases might lawfully be made under them. It is contended that liability as an accessory in substance is incompatible with liability as a principal. It was contended that to proceed on both bases there should have been two counts and that the alternatives should not have been permitted to be left on one count. 161 Reliance was placed on s.346 and s.378 of the Crimes Act 1900 as showing the appropriate mode of charging, which it is submitted is inconsistent with the making of alternative cases as here. Those sections read:-

"s.346 Every accessory before the fact to any such felony may be indicted, convicted and sentenced, either before or after the trial of the principal felon, or together with such felon, or indicted, convicted and sentenced, as a principal in the felony, and shall be liable in either case to the same punishment as the principal felon, whether the principal felon has been tried or not, or is amenable to justice or not."


"s.378 In an indictment against an accessory to murder, or manslaughter, it shall be sufficient to charge the felony of the principal in the manner hereinbefore specified, and then to charge the accused as an accessory in the manner heretofore accustomed."

162 Although it was conceded these are enabling provisions, it was submitted that s.378 qualifies the more general provision to restrict its operation in the case of homicide or alternatively that the drafting of the two provisions indicates that the legislation never contemplated that, particularly in the case of homicide, the charge might embrace both bases of liability in the alternative and that a charge having that effect was otherwise unavailable at law. 163 Although it is accepted that the accused was aware of the nature of the cases the Crown proposed to make and that the Crown alleged either the accused was the principal or was accessory to an unknown principal, it is contended that there was still substantive prejudice to the appellant such that the task should not have been left to a jury of having to decide ultimate guilt on these inconsistent bases as they might not have been unanimous on the relevant basis and that they might have been confused as to the essential facts, further, a real problem it is said was presented to the judge in seeking to ascertain how to sentence consistently with the jury's verdict.

The case at trial

164    As the judgment of Dunford, J. makes clear, the case was left to the jury on both bases and in respect of both, the trial judge directed the jury that it was necessary for them to be satisfied beyond reasonable doubt of all of the four essential circumstances before a finding of guilt could be reached. As will appear, the trial judge's directions essentially encapsulated the legal bases on which the case was left to the jury as requiring them to be satisfied beyond reasonable doubt the accused was the actual murderer or the procurer of his girlfriend's murder. 165    Prior to commencing the trial, the trial judge, in a considered judgment, severed a count of soliciting to murder from the indictment and ruled that the Crown could proceed on the alternative bases on the sole remaining count as pleaded and without any addition. 166    The Crown opened the case relevantly in the following passage, which is reproduced without attempting the obvious textual amendments:-

"He was charged on 20 September with the matter now before the court. The Crown when charging him with murder puts its case a number of different ways. The Crown case is that the accused John Serratore was responsible for the murder of Frances Tizzone. Either he killed her himself or he procured, obtained, somewhat (sic) else to kill her for him, that person being unknown.
Providing the essential elements of the charge are established, the Crown says you can find the accused guilty of murder if you find beyond reasonable doubt that he procured an unknown person to kill Frances, whether he was present or not; and thirdly, if you are unable to be satisfied beyond reasonable doubt that the (sic) killed her, or whether he procured her, but you are satisfied beyond reasonable doubt that is one or the other but you can't say which, then that would also be a basis upon which he would be guilty of murder.
So, satisfied beyond reasonable doubt that he killed her himself, which would involve the Crown proving the death of Frances Tizzone due to the act of the accused John Serratore, which was an unlawful act, that being not in self-defence, for example, and it was an act which was done with either intent to kill or cause grievous bodily harm.
The first leg is kill her himself which caused death by his own act, it being an unlawful act intending to cause grievous bodily harm or to kill her.
Secondly, if you are satisfied beyond reasonable doubt that an unknown person murdered Frances Tizzone and John Serratore was present aiding and abetting the unknown killer - that means the crown would have to prove the murder of Frances Tizzone by the unknown person and John Serratore was present and assisting if necessary as previously agreed between he, Serratore, and the unknown person: or that unknown person murdered Frances Tizzone and John Serratore was a party to that agreement for that unknown person to murder Frances Tizzone so he arranged it, procured it.
So he did it himself, he procured someone to do it for him, and he was either present aiding and abetting or not, but if he simply procured the person to do it for him - if you are satisfied beyond reasonable doubt as to any of those three then the verdict is guilty. If you are not so satisfied you have to look to see whether you can come to the conclusion that you are satisfied he was responsible for her death in that he either killed her himself or arranged or procured someone else to do it.
His Honour will give you more detailed instructions at the end of the case, but that is in essence how the Crown puts its case."

167    The trial judge directed the jury:-

"However, the issue which is paramount in this case is whether the death of the deceased was caused as a result of any act of the accused or an act committed at his behest. That is the prime issue in this case.
…
The question which emerges in this case is the one I have identified and one which has been clearly identified to you from go to whoa, namely was the death of the deceased the result of an act of the accused or an act committed on his behalf by another? That is the question in the case."

168    In coming to sentence the appellant, his Honour referred to the Crown having put its case on alternative bases and described them as follows:-

"At the trial the Crown put its case on an alternative basis. The first of these bases was that on 29 March 1995 the prisoner left work early and met the deceased at Strathfield railway station. Somewhere between the station and where her body was found, he killed her either by strangulation or suffocation and dumped her body at the point where it was found. The vehicle he used was his Honda CRX.
The alternative allegation made by the Crown was that the prisoner had arranged for somebody else to kill her. That was either done in his presence or without his presence, but that arrangement of necessity involved the utilisation of the prisoner's CRX Honda motor car. The Crown case in this regard relied, inter alia, upon evidence that in November 1994, the prisoner had attempted to solicit one Bassam Radwan to kill the deceased and other evidence relating to the engagement of persons from Kings Cross to do such a deed.
In my view and I so find, that in fact the first of the bases is correct, namely that the prisoner himself killed the deceased.
In charging the jury, I directed them that in order to find the prisoner guilty they had to find, beyond reasonable doubt, four essential circumstances. They were:-
1. That on the evening of 28 March 1995 as a consequence of a telephone call, the prisoner and the deceased had arranged to meet.
2. That the prisoner left work between 3.45 pm and 4.00 pm on 29 March 1995.
3. The deceased was killed on 29 March 1995.
4. That the deceased was in the prisoner's Honda CRX shortly before her death.
The jury's verdict of guilty indicates that they found those facts beyond reasonable doubt.
On the basis of those facts which the jury must have found, I am of the view that the proper inference to draw is that it was the prisoner himself and not another but (sic) killed the deceased, and killed her either by strangling or suffocating her. His motive in so doing was jealousy which arose as a result of a situation where the prisoner was obsessively possessive in relation to the deceased."

169    The inference his Honour drew accorded with the jury's verdict which, on his Honour's directions, must have resulted from a finding of the four circumstances. It illustrates how proof of the four circumstances point to immediate and personal involvement in the killing as a principal. If it was not open to be satisfied beyond reasonable doubt of the four circumstances, it is difficult to see how the finding the appellant was the actual killer could be upheld. The drawing of this conclusion in these circumstances is said to illustrate the appellant's argument that the single count might cause such a result. The result was not caused by the single count, however, but by the four circumstances being left to the jury as necessary intermediate facts applicable to both bases. 170    Prior to his Honour's summing up, in addition to the submissions put on the applications to which I have already referred and that put at the close of the Crown case that the charge should not be left to the jury, defence counsel had sought a direction that the case should be left to the jury only on the basis that the accused himself had killed the deceased and a submission was further made that there was no evidence fit to go to the jury on the "alternative basis of arrangement with someone else to do the deed" (ie., principal in the second degree or accessory before the fact). 171    In response, the Crown made the following submission:-

"It is not a case of the Crown saying either he did it or he got someone else to do it. The Crown says he was responsible for the murder in that he either committed the murder himself or had an assistant who either did the murder or simply assisted him. … It may well be the strongest position the Crown has is the jury could say that they cannot determine whether (he) killed her or whether he got an accomplice to kill her. But they could determine that he did one or the other, and that is really the basis of the judgment of Gleeson, CJ. in Regina v. White ."

172 The Crown's case and submissions, as did the trial judge's directions to which I have referred above, embraced a liability contended for by the Crown on the basis of all recognised degrees of complicity in the crime charged, that is, both as principal and also as accessory. But that liability arose because of the one act causing death and postulated either a direct responsibility as principal or derivative responsibility as principal in the second degree or accessory for that act (see Osland v. The Queen (1998) 159 ALR 170 and particularly the discussion by McHugh, J.) and Surujpaul v. The Queen (1958) 42 Cr. App. R. 266 at 269). No question arose here but that a murder had been committed. No independent act or omission causing death as might have been appropriate for an additional or separate count of homicide was relied on (see Regina v. Gorman (CCA, unreported 15 May 1997). There was no question of duplicity.

The New South Wales position

173 In Regina v. White (1989) 41 A. Crim. R. 237 on an indictment in the same form as that used in the present proceedings, the accused was charged in the alternative. Gleeson, CJ. noted:-

"The Crown case against the accused was put in two alternative ways. One alternative was that it was the appellant who actually pulled the trigger that activated the gun that fired the shot and killed the deceased. Alternatively, it was alleged that, if he did not actually use the murder weapon that killed the deceased, he planned the murder and aided, abetted, counselled or procured the shooting of the deceased by some other person."

174 Although there was, in that case, no argument challenging the form of the indictment or the appropriateness of a trial on such bases, there was equally no criticism by the court of the course taken. 175 In Regina v. Sourelos (CCA, unreported 6 September 1984) in relation to a misdemeanour (to which, at common law, all participants were equally complicit) it was argued that the case on the sole count was left on the alternative bases of principal and accessory without adequate instruction on unanimity. The appeal was dismissed without the court expressly concluding such a course was open or having to consider closely the unanimity direction. The court held that the charge embraced appropriately the personal acts of the accused and his assistance to others as proving his guilt of a statutory offence of cultivation and on that basis the direction eventually given was correct. That offence, by statute, could be committed in circumstances involving both direct and indirect participation. Similarly see the analysis of McHugh, J. in Davis v. The Queen (1991) 66 ALJR 22. 176 On the precise question before this court, we were informed that there was no authority in this State directly on point. It will therefore be necessary to consider the history and development of any relevant principles and to determine their content. 177 The pleading argument should be considered in the light of an examination of the history, principles and practice of criminal pleadings as adopted in this State or as inherited and then a comparison made with the position as revealed in texts and other decisions elsewhere. 178 The history of the development of the New South Wales practice and procedure in the regulation of criminal proceedings on indictment may be found in "A History of the Supreme Court of New South Wales" (J.M. Bennett, Law Book Company, 1974, 71-75). 179 In New South Wales, the forms of indictment required by the common law were mitigated by statute. Short forms were prescribed under the Criminal Law Amendment Act 1883. Their history is reviewed in the judgment of Allen, J. in Regina v. Glynn (1994) 33 NSWLR 139. As his Honour points out, those short forms were rescinded on 31 December 1987. 180 The short forms that had been prescribed pursuant to s.461 of the Criminal Law Amendment Act 1883 (46 Vic. No. 17) which by that section were "sufficient for the purpose" and "deemed sufficiently to state the offence" had been continued in force by s.2 of the Crimes Act 1900 until the rescission referred to in Glynn (supra). Those forms in respect of specific offences enabled the statement of the offence in a more concise manner than that required by the common law. The requirements of the common law are referred to in Glynn (supra) by Allen, J. in the extracts he sets out from the seventh edition of Archbold's Summary of the Law Relative to Pleading and Evidence in Criminal Cases by John Jervis (published in 1838). 181 The principles and particularly in relation to principals and accessories may be found discussed in "A Treatise on Criminal Pleading with precedents of Indictments, Special Pleas & c. adapted to Practice" (Vol. 1, 2 ed. by Thomas Starkie, Esq., London, 1822, pp.81-88 inclusive). 182 The relevant forms were prescribed by the judges of the court on 27 September 1884 and are to be found in McNaughton, "A Synopsis of Indictable Offences" published by the Government Printer in 1885. Those forms included Form 4 in which the indictment for murder is set out as charging that AB "did feloniously and maliciously murder JN". Such a form reflected s.318 of the Criminal Law Amendment Act which provided for the sufficiency of such a form in the special case of murder. That section continued:-

"And it shall be sufficient, in any indictment against an accessory to murder, … , to charge the principal in the manner hereinbefore specified, and then to charge the accused as an accessory, in the manner heretofore accustomed."

183    Section 303 of that Act provided:-

"Every accessory before the fact to any such felony may be indicted, convicted, and sentenced, either before or after the trial of the principal felon, or together with such felon - or be indicted, convicted and sentenced, as a principal in the felony - and shall be liable, in either case, to the same punishment as the principal felon is subject to - whether the principal felon has been tried or not, or is or not amenable to justice."

184 Section 302 of that Act provided that a principal in the second degree was liable to the same punishment as the principal in the first degree. 185 It was not necessary to provide by statute for any particular form of indictment distinguishing between the degrees of complicity for principals as the same form of indictment was appropriate at common law for principals generally. But in The King v. Gordon (1789) 1 Leach 515 the distinction between the appropriateness of an indictment for a principal, including a principal in the second degree and that appropriate for an accessory, is noted. 186 There are modern decisions where the immateriality of the distinction between degrees of complicity for principals is apparent, eg., Regina v. Smith & Kirton (CCA, unreported 15 February 1990) where the Crown restricted its case to that class of accessories present at the crime, ie., principals in the second degree and Davis (supra) where the majority of the High Court upheld the application of the proviso on the basis the applicant was a principal of one degree or the other. The remarks of Thomas, J. (with whom Shepherdson and Williams, JJ. agreed) in Regina v. Baynes (1989) 41 A. Crim. R. 405 were apparently limited to co-principals (including principals in the second degree, ie. supporters or aiders present or constructively present at the crime). His Honour at 408 said:-

"There is no doubt in any of the authorities that when two or more persons are charged with an offence in a single count, they may be criminally liable either as the principal actor or as a supporter under any applicable provision including ss.7 and 8. In that situation there is little difficulty in recognising that an accused should be convicted if the evidence showed either that he is guilty as a principal offender for his own separate acts or that he is liable (under s.7 or s.8) for the consequences of the acts of another. Both routes to conviction are available on the facts as they jury finds them to be. Even if the jury is unable to say whether the accused in question was the principal or the aider, it may convict if the evidence shows he must have been one or the other: ( Downing (1844) 1 Den. 52 [169 ER 146]; Salmon (1880) 6 QBD 79; Sperotto at 342, 344; DPP v. Merriman at 593, 595, 596-697, 603, 607; 775, 778-779, 781, 790, 796; Thompson (1979) 22 SASR 12 at 16-17). A familiar example is a robbery involving two offenders where the evidence does not clearly establish whether a particular offender (A) committed the act of violence and stealing, or whether he was the one who assisted in the provision and driving of the vehicle. In such a case so long as the evidence shows that A must have been one or the other he may properly be convicted. These alternative routes to conviction remain open on the single count."

187 The provisions of the Criminal Law Amendment Act caught up those of the Accessories and Abettors Act 1861 (24 and 25 Vict. C. 94) which had worked such a radical change avoiding the strictures of the common law in respect of the liability and charging of accessories before the fact to the extent that the Report of the Criminal Code Commission referred to the old law as being "practically superseded" by that enactment. (See the discussion in Stephens Commentaries, 9ed., Book IV at 44-48.) 188 Reflecting the adoption in New South Wales of those provisions, the form of indictment for an accessory before the fact in the particular case of homicide pursuant to s.378 and its predecessor, s.303, was to be found at Form 262 in the short forms of indictment:-

"After charging the principal with the felony, charge the accessory, thus: and the Attorney-General aforesaid further charges that DC, before the said felony was committed in form aforesaid, to wit, on the _____ day of ________, in the year aforesaid at ___________ in the Colony aforesaid, did incite, move, procure, aid, counsel, hire, and command, the said AB to commit the said felony in manner aforesaid."

189 It was a form appropriate to known degrees of complicity and a known principal. 190 Such or similar forms were found in successive editions of Hamilton & Addison, Criminal Law and Procedure New South Wales and Crawford's Proof in Criminal Cases, appearing particularly in the third edition by Tyson & McKay. They are also found in current texts and practice books. Since the rescission referred to in Glynn (supra), they have no statutory force however. 191 Section 17 of the Supreme Court Act provides for rules to be made under that Act (s.17(2)(a)) "for regulating and prescribing the practice and procedure of the court …". The Supreme Court Rules, Part 75 Rule 3D, prescribes a form of indictment. That form is as follows:-

"( Form of indictment )
( Under the description INDICTMENT on the form insert a statement of the nature of the offence, for example for murder and, if a statutory offence, insert under that statement under s… of the Crimes Act 1900 or as the case may require .
New South Wales
On 7 May 19… the Attorney General ( or Director of Public Prosecutions) on behalf of Her Majesty ( or as the case may require: see ss.4 and 16 of the Criminal Procedure Act 1986 ) charges that ( state the offence ).
( signature, full name and capacity of signatory: see s.15 of the Criminal Procedure Act 1986 .)"

192 Section 567 of the Crimes Act adds further statutory authority to the making of a rule under the Supreme Court Act prescribing forms of indictments and continues:-

"Every such form, so prescribed, shall thereafter be sufficient for the purpose, and be deemed sufficiently to state the offence, or matter, for, or in respect of which, it is framed."
The preceding is, however, the only form prescribed.

193 Section 346 provides for indictment as for a principal to be sufficient and it is apparent that s.378 continues so much of s.318 of the amendment Act as dealt with the sufficiency of an indictment against an accessory to murder or manslaughter. Both modern provisions remain to similar effect to those in the Accessories and Abettors Act 1861. 194 The present statutory modification of the common law position and the history is summarised in Gillies, The Law of Criminal Complicity (Law Book Company, 1980) pp.19-26. 195 Gillies (supra) points out that at common law a person charged as a principal in the first degree may be convicted upon proof of aiding and abetting without any obligation to amend the indictment - p.189 - and refers to authority in which, prior to the 1861 Act where there has been doubt as to the exact role of a participant, that participant has been charged in separate counts in the alternative as a principal in the first degree and as an aider. He expresses the view that such a course was unnecessary. 196 By statute, however, by virtue of the Accessories and Abettors Act 1861, s.1, if a person is charged as a principal in either degree and is proved to be an accessory, conviction is open (see Gillies, p.190). Gillies notes that the Crimes Act 1900 provision by s.346 (the effect of which is not cut down by s.378) is that an accessory may be indicted and convicted as a principal offender so that if there is doubt as to whether the defendant participated as a principal or as an accessory before the fact, it would seem to be prudent to charge him as principal (p.196) and refers to Glanville Williams, Criminal Law the General Part at pp.405-407 in a footnote. 197 Neither in the form prescribed nor in the legislation or rules is there any requirement that the form of charge referred to in s.378 is necessary nor does it appear that any impediment to charging, as here, remained after the adoption of the Accessories and Abettors Act provisions. 198 The mode of charging referred to in s.378 is in modern times unused. On its face, s.378 merely provides for another mode whereby in the special case of homicide, an accessory may be charged additional to that provided by s.346 or otherwise available. 199 Following the rescission of the short forms of indictment, it was no longer necessary that a person accused of murder be charged in the old form "did feloniously and maliciously slay". The form "did murder" has been used for many years as appropriate to charge the crime and as applicable both to principal and accessory, eg., as in Johns v. The Queen (1979-80) 143 CLR 108 and King v. The Queen (1986) 161 CLR 423 and is authorised by the practice and procedure of the court. 200 The practice of the court has, until now, without challenge, permitted an indictment to contain, for these purposes, one count charging murder in the present form. There is nothing in the New South Wales history, legislation or practice which speaks against its use in the way it was here employed. Sections 346 and 378 merely prescribe what shall be sufficient. They do not restrict the available modes of charging but, as Gillies' discussion shows, provide means to overcome the deficits the common law had developed in practice. 201 There is overseas authority on the question, in particular in the United Kingdom and Canada which have similar statutory provisions to s.346 similarly derived from the United Kingdom provisions. Regrettably the relevant decisions were not cited to us in argument. 202 The Canadian Supreme Court in Thatcher v. The Queen (1987) 39 DLR (4th) 275 and the United Kingdom Court of Appeal in Regina v. Giannetto (1997) 1 Cr. App. R. 1, in decisions involving not dissimilar circumstances and arguments, have dealt with the same problems as the appellant's submissions raise here. Those cases have been considered, albeit in a somewhat different context, in the Queensland Court of Appeal in Regina v. Leivers & Ballinger (1998) 101 A. Crim R. 175, which was particularly concerned with provisions of the Criminal Code (Qld) involving liability on bases akin to that attracted by principals in the second degree. In dismissing the appeals, the majority of court (Fitzgerald, P. and Moynihan, J.) concluded:-

"When more than one basis of criminal liability is relied on against an accused, it is, on our opinion, necessary for the jury to be unanimously satisfied that the requirements of at least one basis of liability are proved beyond reasonable doubt. It will not necessarily be sufficient for some members of the jury to be satisfied that the requirements of one basis of liability are established and for other members of the jury to be satisfied that the requirements of another basis of liability are established. However, that will be sufficient if the alternate bases of criminal liability do not involve materially different issues or consequences. The point is clearly explained in the judgment of Lamer, J. in Thatcher ."

203 In reasoning to that conclusion, their Honours had reviewed extensive authority including Thatcher (supra) and Giannetto (supra). Pincus, J. was of the view, accepting the effect of the decisions in Thatcher (supra) and Giannetto (supra), that, provided the jury were unanimous as to the verdict, it would be good, even if some jurors had reached on one basis and others on the other. He so concluded, notwithstanding the views expressed in New Zealand in Regina v. Chignell (1991) 2 NZLR 257. He said:-

"Accepting that the jury must not only be unanimous as to verdict, but also be unanimous as to the identity of the offence to which the verdict relates, Thatcher tends to support a broad approach to the latter requirement; such an approach would not, in the present case, vitiate a verdict arrived at by some jurors on the basis of s.7 and on others on the basis of s.8."

204    His Honour quoted as did the Canadian Supreme Court in Thatcher (supra) the following observations:-

"… if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, 'it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'."

205    Thatcher (supra) was a case in which the accused was charged with one count of murder arising out of the death of his ex-wife:-

"The position of the Crown throughout the trial was that Thatcher had murdered Mrs. Wilson or alternatively that he caused someone else to do so and was therefore guilty as a party to the offence pursuant to s.21 of the Criminal Code." (at 279)

206 The grounds of appeal to the Supreme Court included a challenge to an asserted failure to direct that the jury must be unanimous in relation to one or other of the alternative means of committing the offence of murder, ie., that the jury had unanimously to find that he killed his ex-wife or alternatively to find unanimously that he aided and abetted another. A defence of alibi had been raised. Section 21, the relevant Canadian Code statutory provision had the effect of making both principals and accessories equally parties to the crime. 207 Dickson, CJC., with whom Wilson, Le Dain, Beetz and Estey, JJ. concurred, and with whom La Forest and Lamer, JJ. concurred with some qualifications, said at 304:-

"… one of the principal policy arguments for not requiring jury unanimity as to which of the subsections of s.21 grounds the criminal liability of a particular accused: it would otherwise be open to co-accused to escape conviction by imbuing members of a jury with doubt as to which of the co-accused physically performed the criminal act, even if the jurors entertained no doubt that any individual co-accused either personally committed the crime or else aided and abetted in its commission. This policy concern was recognised long ago by Pollock, CB in Regina v. Swindall & Osborne (1846) 2 Car. & K. 230; 175 ER 95, a case which pre-dated the abolition of the distinction between principals and accomplices.
The court canvassed the authorities in considerable detail in Regina v. Harder (1956) 114 CCC 129; 4 DLR (2d) 150; [1956] SCR 489, and articulated the proposition that it was unnecessary for the Crown to specify in an indictment that an accused was being charged as a party rather than as a principal simpliciter."

208    His Honour noted, at 310;-

"The appellant's submission ignores the very reason why Parliament abolished the old common law distinctions: namely, they permitted guilty persons to go free. As Professor Peter MacKinnon points out in 'Jury Unanimity: A Reply to Gelowitz and Stuart', 51 CR (3d) 134 at 135 (1986), if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, 'it is difficult to imagine a situation more likely to bring the administration of justice into disrepute - and deservedly so'."

209    At 305 at 306, his Honour reviewed the common law position and the effect of the statute:-

"The common law did, however, draw a distinction between principals and accessories. Accessories were those who conspired with the principal in the first degree or who aided and abetted him but were neither actually nor constructively present at the scene of the crime: see Regina v. Smith (1876) 38 UCQB 218 at 227-228. Thus if Thatcher aided and abetted, rather than personally committed, I do not think it is contended that he was necessarily physically present at the murder. Therefore, his case might well not fall within the old common law rule permitted one charge but two different possible modes of participation in the offence. But this is precisely the distinction that disappeared when Parliament abolished the common law distinction between principals and accessories.
…
Thus, s.21 has been designed to alleviate the necessity for the Crown choosing between two different forms of participation in a criminal offence. The law stipulates that both forms of participation are not only equally culpable, but should be treated as one single mode of incurring criminal liability. The Crown is not under a duty to separate the different forms of participation in a criminal offence into different counts. Obviously, if the charge against Thatcher had been separated into different counts, he might well have been acquitted on each count notwithstanding that each and every juror was certain beyond a reasonable doubt either that Thatcher personally killed his ex-wife or that he aided and abetted someone else who killed his ex-wife. This is precisely what s.21 is designed to prevent."

210    His Honour was of the view that:-

"… it is no longer necessary to specify in the charge the nature of an accused's participation in the offence: Harder . Moreover, if there is evidence before a jury that points to an accused either committing a crime personally or, alternatively, aiding and abetting another to commit the offence, provided the jury is satisfied beyond a reasonable doubt that the accused did one or the other, it is 'a matter of indifference' which alternative actually occurred … It follows, in my view, that s.21 precludes a requirement of a jury unanimity as to the particular nature of the accused's participation in the offence. Why should the juror be compelled to make a choice on a subject which is a matter of legal indifference?"

211    He continued (at 309):-

"… and there is no injustice in his conviction on the indictment irrespective of whether the jurors shared the same view as to the most likely manner in which Thatcher committed the murder."

212    Since His Honour considered there was no relevant distinction at law between the alternative bases, he analysed them from a factual view point considering the application to them of the evidence noting that the only difference lay in evidence of identification and alibi. 213    Lamer, J. qualified his agreement that the point on unanimity failed in the following passage (at 313):-

"Depending on the nature of the evidence presented by the Crown, the jury unanimity issue may arise in any case where the Crown alleges factually inconsistent theories, even if those theories relate to the particular nature of the accused's participation in the offence. If the Crown presents evidence which tends to inculpate the accused under one theory and exculpate him under the other, then the trial judge must instruct the jury that if they wish to rely on such evidence, then they must be unanimous as to the theory they adopt. Otherwise, the evidence will be taken into account by some jurors to convict the accused under one theory while the fact that the evidence exculpates the accused under the other theory is being disregarded by the other jurors who are taking the latter route. In effect, the jury would be adding against the accused the inculpatory elements of evidence which cannot stand together because they are inconsistent."

214    La Forest, J. adopted a similar view. 215    If it were necessary (as it is not) to prove absence from the killing to show liability as an accessory before the fact, these remarks might have presented a problem. An attempt by the Crown to put forward under the one count such mutually exclusive bases as require proof of either presence or absence would require the direction Lamer, J. refers to. 216    In Giannetto (supra), the United Kingdom Court of Appeal, again in a wife killing case, in which, whilst there was powerful circumstantial evidence of the accused's guilt as a principal, there was also evidence of an attempted recruitment of a killer, considered the problem thus:-

"In the context of the present case it seems to us that the starting point must be s.8 of the Accessories and Abettors Act 1861, as amended, which reads:-
'Whosoever shall aid, abet, counsel or procure the commission of any indictable offence … at common law or by virtue of any Act passed or to be passed, shall be liable to be tried, indicted and punished as a principal offender.'
The effect of that section is that even if the appellant did no more than encourage someone else to kill his wife he was liable to be tried, indicted and punished as a principal offender, and where, as here, the prosecution, for good reason, is unable to say whether the defendant did more than encourage, it must be open to the prosecution to invite the jury as a whole to find that at least the defendant encouraged. If the jury does convict it may do so with some jurors satisfied that the defendant was actually the killer, but all will be satisfied that if not himself the killer at least he encouraged and by reason of the statutory provision in the 1861 Act which we have cited no more is necessary to prove the offence. If that approach is correct, then this ground of appeal must fail."

217    The court tested that approach by comparing it with various decisions including Thatcher (supra). Considering the 1988 Criminal Law Review Article by Professor Sir John Smith, examining the point, the judgment observed:-

"If in any given case the factual basis of the crime charged is in reality coterminous with an essential element or ingredient of the offence then we can accept without difficulty Professor Smith's formulation, and in relation to the facts of the present case it was possible to say, plainly and the prosecution did say, that if the appellant was not himself the killer, then he instigated the offence."

218    Regina v. Gaughan [1990] Crim. LR 880 and Professor Smith's commentary on it at 881 were cited for the rejection, with which the court agreed, of an asserted necessity for two counts as:-

"That was rejected by this court, Lloyd, LJ. (as he then was) saying at p.7G of the transcript that 'committing an offence as a principal and committing an offence as an accessory are two different way of participating in the same offence. They are not separate offences'."

219    The court accepted the practical reasons for not having two counts given by Dickson, CJC. in Thatcher (supra). The court concluded:-

"Having considered the authorities with some care we are satisfied that in the circumstances of this case the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails.
There are two cardinal principles. The first is that the jury must be agreed upon the basis on which they find a defendant guilty. The second is that a defendant must know what case he has to meet. When the Crown alleged, fair and square, that on the evidence, the defendant must have committed the offence either as principal or as secondary offender, and make it equally clear that they cannot say which, the basis on which the jury must be unanimous is that the defendant, having the necessary mens rea, by whatever means caused the result which is criminalised by the law. The Crown is not required to specify the means, because the legal definition of the crime does not require it; and the defendant knows perfectly well what case he has to meet. Of course, if (as will very often be so) the Crown nail their colours to a particular mast, their case will, generally, have to be established in the terms in which it is put. Our judgment should give no encouragement to prosecutors casting around for alternative possibilities where the essential evidence does not show a clear case against the defendant. But the facts of the present appeal are by no means an instance of that."

220    The reference to "bases" in the commencing sentences of the second paragraph of that passage is to be understood in the light of what follows, ie., that it is necessary for the jury to be unanimous that the defendant, with the necessary mens rea, by whatever means, ie., as principal or procurer, caused the result. Indeed, on a classical analysis of the concept, that test would be too narrow. Mere encouragement without that act being a substantial and operative cause of the killing would attract liability. 221    The Court of Appeal however also extended the qualification proposed in Thatcher (supra) by Lamer and La Forest, JJ. to an alternative theory advanced by the defence. Clearly such a theory would be the availability of an alibi as striking at the possibility of the accused's presence at the killing and hence at his being a principal.

Conclusion

222 There is nothing in the legislation, practice or authorities which would prevent such a charge as this or the Crown proceeding as they did. It would be entirely strange that only one sub-class of those of complicit in a crime should have to be separately charged or that doubt as to the degree of complicity should produce an acquittal where all degrees would now in law be equally liable. 223 The United Kingdom and Canadian decisions are powerfully persuasive and have achieved acceptance in Queensland after detailed examinations. They accord with principle. 224 This is not a case where the second cardinal principle referred to in Giannetto (supra) has not been observed. The present is not a case of the kind to which Justice Dawson referred in Georgiani v. The Queen (1985) 156 CLR 477 and King (supra) nor to which the remarks of the House of Lords in Director of Public Prosecutions for Northern Ireland v. Maxwell (1979) 68 Crim. App. R. 128; Regina v. Browne (1987) 38 A. Crim R. 278 referred to in The Queen v. Taylor, Harrison & Taylor (1998) Crim. Law Review 583, nor those made by Street, CJ. in Regina v. Lanteri (1985) 4 NSWLR 359 where reference was made to the necessity, of providing proper particulars and the advisability of charging accused appropriately where their true degree of complicity is known when the prosecution avails itself of some similar provision to the relevant provisions (including s.8) of the Accessories and Abettors Act 1861. Here, the particulars were known from the outset and the degree of complicity was not known. 225 The vice contended for by the appellant that in such circumstances as this the unanimity requirement cannot be ensured, ie., the necessity to comply with the first cardinal principle, can be avoided by a proper direction accommodating the expansion noted in Giannetto (supra) to the views of Lamer and La Forest, JJ. in Thatcher (supra). The directions should also include a requirement that the jurors be unanimously satisfied that the accused was at least an accessory before the fact, a direction I have already noted, when considering at a new trial. I consider for these reasons the two bases are not lawfully incompatible and there was no error. 226 In my view the ground should be rejected.

IN THE COURT OF
CRIMINAL APPEAL

60675/98

DUNFORD J
GREG JAMES J
SMART AJ

FRIDAY 26 NOVEMBER 1999

REGINA v. SERRATORE


JUDGMENT

227    SMART J: I have had the advantage of reading the judgments, in draft, of Dunford J and Greg James J. They set out the facts and contentions of the parties. 228    I agree with the reasons and conclusions of Dunford J as to the admission of the hearsay evidence which he has identified. I agree that his judgment in R v. Dean, unreported 12 March 1997 and that of Sperling J in R v. Mankotia, unreported, 27 July 1998 may need to be reconsidered. 229 I agree with the reasons and conclusions of Dunford J that the judge did not err in refusing to admit into evidence a police running sheet recording information supplied by Mrs. Wiltshire. Even if it was technically admissible it added nothing to her evidence and the appellant’s case and he has suffered no prejudice. She gave evidence of reporting what she believed she had seen to the police immediately and that was not challenged. 230 I agree with the reasons and conclusion of Dunford J that the trial judge was not required to give a warning under s.165 of the Evidence Act 1995 or otherwise as to parts of the evidence of Patricia Tizzone, Antonella Tizzone and Damien Bower. I also agree that the warning given in relation to the evidence of Bassam Radwan was sufficient in the circumstances. I agree that the trial judge was correct in not directing the jury that it would be dangerous to convict on the evidence before them. The evidence was cogent. 231 While I agree with Dunford J that the conviction was supported by the evidence, I do so, on broader grounds. At the trial counsel for the appellant contended that it was necessary for the Crown to prove beyond reasonable doubt each of the following as essential intermediate facts:

1. On the evening of 28 March 1995 the deceased and the appellant arranged to meet on the following evening.

2. The appellant left work early between 3.45 and 4.00 o’clock on 29 March 1995.

3. The deceased was killed on 29 March 1995.

4. The deceased was in the accused’s Honda CRX motor car shortly before her death.

Reading the Crown’s submissions (T.1112 and following) it is not clear what attitude the Crown took to this contention. It was not directly challenged. The Crown Prosecutor appeared to concentrate on the facts relating to the various point and the overall way in which he wished to put the Crown case. He was strongly against it being compartmentalised.

232    In his Summing Up the judge treated proof of those four circumstances as essential to the two aspects of the Crown case on murder, namely the appellant killing the deceased and the appellant procuring and/or helping another to kill the deceased. During the Summing Up the Crown Prosecutor submitted that proof of circumstance 2 (the appellant leaving work early) was not essential. 233    I do not regard proof of each of those circumstances as essential to proof of the Crown case on the aspect of procuring and/or aiding and abetting another to kill the deceased. On this aspect I would only regard proof of circumstance 4 as essential. As to the aspect of the appellant killing the deceased, I do not regard circumstances 1 and 2 as essential but I do regard circumstances 3 and 4 as essential. I agree with Dunford J that circumstance 1 was not essential on either aspect of the Crown case if it were otherwise established that the deceased was in the appellant’s car on the evening of 29 March 1995 prior to her death. 234    I regard the question of whether the jury was entitled to be satisfied beyond reasonable doubt of circumstances 1 and 2 as a difficult one. As to circumstance 1, I would attach some weight to the mother of the deceased not telling the police at an early point of time about the meeting arranged between the deceased and the appellant, but, I would not regard it as being of great importance. The mother did attend Burwood Police Station about 8.30 p.m. on 29 March 1999 and told Const. Hall not only about her daughter not coming home but also their worries as to where she could be having regard to her previous relationship with the appellant. Const. Hall checked the computer and saw the details of the earlier apprehended violence order. Const. Hall telephoned the Serratore home and questioned John Serratore in the light of the material supplied by the Tizzone family. Const. Hall asked the appellant where he had been, whether he had seen the deceased and whether he knew where she could be. 235    As a lay person the mother would not necessarily have regarded telling the police about the intended meeting at an early point as important. Given her husband’s likely reaction and attitude to the appellant, the mother may not have wished to reveal to her husband that she knew of the intended meeting between the appellant and the deceased. This was a family with an Italian background and culture. The answers she gave in cross-examination as to why she did not tell the police at an early point of time of the intended meeting or raise the matter with the appellant were bland. She was in the witness box on three days. Much would have depended on the jury’s assessment of the mother. The critical point, of course, is whether the deceased told her mother of the intended meeting as she alleged. Her failure to mention that meeting at an early point is a subsidiary matter and should not be elevated in importance. In my opinion the jury was entitled to be satisfied beyond reasonable doubt on the mother’s evidence that on the evening of 28 March 1995 the deceased told her mother of the intended meeting with the appellant in the late afternoon - early evening of 29 March 1999. 236    Dunford J has analysed the evidence of Antonella Tizzone and pointed out the difficulties with it. Antonella shared a bedroom with the deceased. That bedroom had a telephone and TV and enough room for Antonella to work on an assignment. She said that on the night of 28 March 1995 she was working on her assignment, the deceased was on the telephone and the TV was going in the background. Through the different versions given of whom she thought was on the other end of the telephone there was a common thread, namely, that the deceased was on the telephone and arguing with the person at the other end of the telephone. Antonella gave different versions as to whom she believed was on the other end of the telephone. The value of her evidence lies not in whom she thought was on the other end of the telephone but in the fact that there was a telephone call between the deceased and another between about 7.30 p.m. and 8.30 p.m. on 28 March 1995 and that they were arguing. That provides some support for the mother’s evidence. The trial took place in October 1998 some 3½ years after the events of late March-early April 1995. It is not surprising that there would be discrepancies and a lack of recollection of some matters and details. 237    Dunford J has reviewed the evidence in detail as to circumstance 2. The documentary material produced by the Navy suggested that Damien Bower was seen by Dr. Gray on 27 March 1995 and was to be reviewed on 30 March 1995. There was a leave pass dated 28 March 1995 granting Mr. Bower leave from 28 March 1995 to 0800 on 30 March 1995. A blood sample was taken but the records are not conclusive as to when that was done. After having all the Navy documents put to him Mr. Bower remained adamant that it was on 29 March 1995 that Dr. Gray took a blood sample. The doctor’s hands were shaking. Further, later that morning Dr. Gray had a stroke and collapsed. That was not in dispute. The build up to the stroke and the collapse would explain the shaking hands. Mr. Bower remembered that it was on that day that he went to his wife’s place of employment and that the appellant left work about 4 p.m. The evidence of Dr. Cavanagh, the pathologist, in charge of the Navy Hospital at Balmoral was that blood tests occurred on Mondays, Wednesdays and Fridays. This would fit in with a review early on Thursday morning. The doctor, after reviewing all the records was unable to say when the blood sample was taken. Dr. Cavanagh agreed that all the documents implied that Mr. Bower was at the hospital on 28 and 30 March 1995 but not on 29 March 1995. She did not regard the documents as necessarily right. The critical documents were unsigned and undated. 238    There was evidence that the appellant left work early on the following day, 30 March 1995. He was going to see the police and did so. I think that the jury was entitled to rely on the evidence of Mr. Bower and Dr. Gray’s condition and to be satisfied beyond reasonable doubt of circumstance 2 notwithstanding the documents produced by the Navy. 239    Some care needs to be taken when the question of time is being considered. It was suggested that unless the appellant left his place of employment about 4.00 p.m. he would not have had enough time to drive from Mascot to Croydon Park, from Croydon Park to Strathfield (or possibly Burwood) and from Strathfield to the Wakehurst Parkway, French’s Forest at a point 1.2 kms sought of Warringah Road and return to Croydon Park. There are many variables not the least of which was the amount of traffic in March 1995 and the speed at which it was travelling. This was a matter for the jury. My own view is that if the appellant collected the deceased at about 6.00 p.m. at Strathfield Station and everything went expeditiously he could have travelled to French’s Forest and returned to Croydon Park by just before 8.30 committing a murder or assisting at some stage. 240    In Const. Hall’s evidence this passage appears as to her conversation with John Serratore a little after 8.30 p.m. on 29 March 1995:

“Q. … and did you [Hall] say, ‘Where have you been this afternoon?’ and did he say ‘I came home from work and have been here all the time’.
A. Yes.
Q. Did you say, ‘What time did you come home from work?’ and did he say ‘About 5 pm’.

That answer conveys that the appellant arrived at his home from work about 5 pm. Const. Hall was not cross-examined about that piece of evidence. His evidence was that he arrived home about 5.30 p.m.

241    The jury was entitled to be satisfied beyond reasonable doubt that the appellant left work at least a little early and had arrived home about 5.00 p.m. That would give him sufficient time to make the journeys involved. Further, when Luke Yatris telephoned the appellant at 6.30 p.m. his mother told Mr. Yatris that the appellant was not home. 242    The jury was entitled to be satisfied beyond reasonable doubt that the appellant had sufficient time to commit the murder of the deceased himself or to be present assisting in her murder. This is so whether he left work about 4 p.m. and arrived home at 4.40 p.m. or whether he arrived home at 5.00 p.m. or 5.30 p.m. If the appellant procured somebody else to commit the murder the debate as to sufficiency of time would not arise. 243    In my opinion the verdict was well supported by the evidence. 244    Greg James J has dealt comprehensively with appeal ground 1(a) and (b). His judgment demonstrates that there is no substance in these grounds and I agree. 245    The conclusions which I have reached would lead to the dismissal of the appeal. My opinion is a minority one. 246    Upon the basis that I am in error in my view that the jury was entitled to be satisfied beyond reasonable doubt of circumstances 1 and 2 and that there is to be a new trial I express the following opinions:

(a) As appears earlier in these reasons I share the view of Dunford J that it was unnecessary for the Crown to prove the “four essential circumstances" on the alternate basis of the Crown case of procuring the murder. I agree also that the direction that in order to convict on either basis of the Crown case the “four essential circumstances” had to be proved beyond reasonable doubt was incorrect in that it was unduly favourable to the appellant and unduly restrictive of the Crown.

(b) I do not share the view of Dunford J that absent proof of circumstances 2, 3 and 4 the appellant could not be convicted of himself murdering the deceased. There would have to be proof beyond reasonable doubt of circumstances 3 and 4 (that is, the deceased was killed on 29 March 1995 and was in the appellant’s Honda car shortly before her death) and of the soliciting to kill and his statement of intention. This provided ample evidence of intention and motive to kill. The evidence adduced at the trial of soliciting to kill was admissible on a wider basis than evidence of relationship. If it were admitted on a wider basis it would not involve the appellant meeting a different case. Other evidence of relevance was led. I would not wish to inhibit the way in which the Crown presented its case at the new trial nor trespass upon the way in which the judge conducts the trial and gives his rulings as to the admissibility and use of evidence and determines the legal questions which arise and the directions which should be given. The evidence in the second trial may differ from that in the first trial.

247    The Crown Prosecutor made it clear in his opening speech and when addressing the judge shortly before the Summing Up that “It may well be the strongest position the Crown has is the jury would say that they cannot determine whether (he) killed her or whether he got an accomplice to kill her. But they could determine that he did one or the other …”. Reliance was placed on the judgment of Gleeson CJ in R. v. White (1989) 41 A Crim R 237. There is much substance in the submission just quoted. It is the approach which I would adopt. 248 In other circumstances a more elaborate direction as to unanimity may be required but it was not necessary in this case because on either aspect of the Crown case the jury were directed that they had to be satisfied beyond reasonable doubt of the four essential circumstances. 249 I would dismiss the appeal.

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