R v Short - [2000] NSWCCA 462

NEW SOUTH WALES CRIMINAL COURT OF APPEAL

CITATION: R v Short [2000] NSWCCA 462 revised - 7/11/2000

FILE NUMBER(S):
60260/99
60272/99

HEARING DATE(S): 4 August 2000

JUDGMENT DATE: 03/11/2000

PARTIES:
Regina
Jay William SHORT

JUDGMENT OF: Beazley JA Grove J Kirby J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70077/97

LOWER COURT JUDICIAL OFFICER: Sully J

COUNSEL:
Crown: L M B Lamprati / S Piedade
Short: J S Stratton / D Yehia

SOLICITORS:
Crown: S E O’Connor
Short: D J Humphreys

CATCHWORDS:
Murder
Robbery with corporal violence
Assault occasioning actual bodily harm
Direction to jury
Unsafe and unsatisfactory verdicts
Manifestly inadequate sentence

LEGISLATION CITED:
s 19A, s 95, s 59 Crimes Act 1900 (NSW)
s 4 Criminal Procedure Act 1986 (NSW)
s 48(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW)

DECISION:
Appeal against conviction dismissed
Appeal against sentence allowed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
CCA   60260/99; 60272/99
BEAZLEY JA
  GROVE J
  KIRBY J

Friday, 3 November 2000

REGINA v Jay William SHORT
FACTS
The appellant was convicted on one count of murder, one count of robbery with corporal violence and one count of assault occasioning actual bodily harm.
He was sentenced to a term of 20 years imprisonment for the offence of murder, consisting of a minimum term of 16 years with an additional term of 4 years. For the offence of robbery he was sentenced to 5 years and for the offence of assault 2 years, with the sentences on the three counts being served concurrently. The Crown appealed against the sentences imposed for the three counts.
The three offences arose out of a series of events occurring within a short interval of time. There wee no witnesses to any of the offences. However, the appellant, who was arrested the day after the murder, confessed to the murder but retracted his confession one year later, claiming that he had been present when two friends abducted the dead victim but not when she was killed. He claimed only to have buried her body after finding her dead. He denied any involvement in the other two offences.
The appellant raised two grounds of appeal in relation to the murder conviction. First, that the trial judge’s direction to the jury that the “basic question” or “cardinal question” for them was whether they believed Short was tantamount to giving a direction that their task was to choose between the Crown evidence and the evidence of the accused contrary to the principles stated in R v E (1995) 89 A Crim R 325 and R v Towner (1991) 56 A Crim R. The second ground was that the trial judge erred in preventing counsel from addressing the jury about the possibility that exhibits had been contaminated. Short also appealed against his convictions on the counts of robbery and assault on the ground that the verdicts were unreasonable and not supportable having regard to the evidence.
The Crown also appealed against sentence, contending firstly, that the trial judge failed to give sufficient weight to Short’s mental condition, secondly, that his Honour erred in imposing concurrent sentences because the offences should not be treated as part of a single course of criminal conduct and thirdly, that the trial judge did not have proper regard to the fact that the attack on the first two women provided an important contextual background to the murder of the third woman.
HELD
On the appeal against conviction:
(i) per Beazley JA (Grove and Kirby JJ agreeing): Although the phraseology used by the trial judge was unfortunate, he did not at any stage direct the jury that it was a matter of choice between the Crown’s case and Short’s and the directions taken in the context of the summing up as a whole could not have misled the jury or deprived Short of a chance of acquittal.
(ii) per Beazley JA (Grove and Kirby JJ agreeing): The trial judge drew a clear distinction between the possibility of accidental contamination which he held could be put to the jury, and the possibility of deliberate contamination, about which there was no cross-examination and therefore could not be put to the jury. The distinction he made was correct and it was not open to trial counsel to suggest deliberate contamination to the jury.
(iii) per Beazley JA (Grove and Kirby JJ agreeing): Despite the absence of direct identification evidence in relation to the counts of robbery with corporal violence and assault occasioning actual bodily harm, there was sufficient evidence before the jury from which the inference that the accused was responsible for the attacks could properly be drawn.
On the Crown appeal against sentence:
(i) per Beazley JA (Grove and Kirby JJ agreeing): The trial judge gave sufficient and appropriate weight to the material concerning Short’s mental condition.
(ii) per Beazley JA (Grove and Kirby JJ agreeing): The trial judge did not err in making the sentences concurrent.
(iii) per Beazley JA (Grove and Kirby JJ agreeing): The sentence imposed in respect of the murder count did not reflect the objective seriousness of the offences in totality and considering all the circumstances of the offence the sentence was manifestly inadequate.
ORDERS
(i) Appeal of Jay William Short dismissed.
(ii) Crown appeal against sentence allowed.
(iii) Sentence imposed in respect of the count of murder quashed.
(iv) In lieu thereof, Jay William Short is sentenced to imprisonment for 24 years, with a non-parole period of 18 years. The sentence is to commence from 3 March 1997. The earliest date on which he is due for release is 2 March 2015.
(v) The sentences in respect of counts 2 and 3 in the indictment are confirmed.
IN THE COURT OF
CRIMINAL APPEAL
CCA 60260/99
CCA 60272/99

BEAZLEY JA
GROVE J
KIRBY J

Friday, 3 November 2000

REGINA v JAY WILLIAM SHORT
JUDGMENT

BEAZLEY JA: There are two appeals before the Court. The appellant, Jay William Short appeals against his convictions on one count of murder (s 19A of the Crimes Act 1900 NSW) (the first count), one count of robbery with corporal violence (s 95 of the Crimes Act) (the second count) and one count of assault occasioning actual bodily harm (s 59 of the Crimes Act) (the third count). The Crown appeals against the sentences imposed by the trial judge.
Factual Background
The three offences of which the appellant was convicted occurred in the early hours of 2 March 1997 in the vicinity of Watsford Oval, Lithgow. The main New South Wales western railway line runs through Lithgow. There are viaducts and a footbridge giving access to and from one side of the railway line to the other. Main Street, where the “Nitespot” nightclub is located, is on the central business/retail side of the line. On the opposite side of the line are located the local swimming pool and the Lithgow Showground. The Showground incorporates a sports ground and the local trotting club.
The victims, Ms Lewis, Ms Tonkin and Ms Spillane were all aged about 19 years. They had spent the evening of 1 March and the early hours of 2 March 1997 at a local nightclub, “The Nitespot”, in Main Street, Lithgow. Before leaving the “Nitespot”, they decided to meet shortly afterwards at the local swimming pool. Ms Lewis left first in the company of a Mr Doalman.
At about 3.40am, a local resident, Mrs Magnusson, woke up and heard a woman crying and sobbing in “distressed type sounds” over a period of about 10 minutes and a male voice saying “come back here”, and “stop that”. She heard one male voice only and described it as “sound[ing] angry”. The voices came from the direction of the footbridge over the railway line which is about seventy to one hundred metres from her home.
Ms Lewis was murdered probably sometime shortly after 3.40am and the screams heard by Mrs Magnusson were probably those of Ms Lewis.
The other two friends, Ms Tonkin and Ms Spillane, left the “Nitespot” about 10 minutes after Ms Lewis. Ms Spillane estimated that she and Ms Tonkin left the nightclub about 2.50am. This time was confirmed in general terms by a taxi driver, Mrs Morrison, who knew the girls, and saw them in Main Street at about 2.45am.
Ms Tonkin and Ms Spillane first walked with another friend to the Lithgow Hotel. They then walked back past the nightclub and through a railway viaduct into James Street. James Street commences as a T-intersection with Main Street, goes under the railway line and then runs parallel to the railway line past Watsford Oval. Watsford Oval and the swimming pool are separated by George Coates Avenue, which forms a T-intersection with James Street.
Both Ms Tonkin and Ms Spillane were attacked shortly after 3am as they were walking along James Street near Watsford Oval. Ms Tonkin was attacked first when she was struck from behind by a blow across the back of her shoulders. At the moment she was struck, she heard Ms Spillane cry out “who are you?”. Ms Tonkin fled. Ms Spillane was then struck twice, once across the shoulder and once across the head. Her attacker then grabbed her by the hair and dragged her towards the oval. Ms Spillane managed to push her foot into a gutter in an attempt to stop being pulled along. At that point her hair ripped from her head and she escaped. At some stage during the attack one of her shoes had come off. Her handbag was also pulled off from around her neck.
Ms Spillane ran back to Main Street and hailed a taxi, which, as it happened, was being driven by Mrs Morrison. Mrs Morrison estimated this was at about 3.18am. Mrs Morrison telephoned the police and then, with Ms Spillane still as her passenger, drove to a spot which overlooked Watsford Oval to look for Ms Tonkin. They saw her in the middle of the oval and screamed out to her. Ms Tonkin ran to the cab and Mrs Morrison took both girls to Lithgow Hospital. Mrs Morrison next went to the police station and informed the police that Ms Spillane and Ms Tonkin were fearful for Ms Lewis’ safety. She estimated that by then it was about “half past three, twenty-five to four”. The police were not able to go to the area at that time.
Mrs Morrison also contacted Ms Spillane’s father, Mr Gee, who went straight to the hospital to see his daughter and inspected her injuries. He then went to the vicinity of the attack and found his daughter’s shoe near the swimming pool. Then, in the middle of James Street, about twenty metres from where it forms the T-intersection with George Coates Avenue, he found a “portion of what [he] thought was a tomato type stake”. He took possession of the stake. He returned to the hospital and took his daughter and Ms Tonkin to the police station. There, he again inspected his daughter’s injuries and also those of Ms Tonkin and observed that the stake was “an exact match” to the mark across Ms Tonkin’s back. Having looked again at his daughter’s injuries, he suspected her back injury was “done with the same stick”. Mr Gee is an engineer and accustomed to assessing measurement.
It is probable from these facts, and it was the Crown case, that Ms Tonkin and Ms Spillane had been attacked before Ms Lewis was murdered.
Ms Lewis’ body was found buried in a long jump sand pit in the sportsground at about 2.30pm on 2 March, during the course of a police search of the sports ground. Earlier in the day, (about 5 am) her sandals had been found on the showground side of the footbridge. Later in the morning and before her body was found, police found items of her bloodstained clothing in various locations between the railway fence and the showground. After her body was found police found a blue rake, a white stake and the deceased’s underpants in a drum near the running track. There was sand on the rake and the stake. Her bra was found in another drum nearby.
In the afternoon of 2 March police received a report that a trotting sulky had been stolen from the Trotting Club, which is located within the Showground. The sulky had been found earlier that day resting on some seats at the athletics field. There was blood on the left shaft of the sulky.
Ms Lewis’ death had been caused by ligature strangulation. Her body also bore multiple traumatic injuries. She had an abrasion with a linear edge running across her right ear and right upper neck. She had incisions to her wrists and thigh and injuries to her throat, face, head and upper body. She had three incisions to her neck.
Mr Doalman, the companion with whom Ms Lewis left the nightclub, was not implicated in her murder.
The appellant was arrested on 3 March.
At the time of his arrest, the police seized items of clothing and a pocket knife from the premises where the appellant had been residing. There were blood stains on the appellant’s cap and shoes and sand in the pocket of a flannelette shirt. There was blood on the knife. The appellant later provided blood, head and pubic hair samples which were DNA tested.
On 4 March, a railway employee found a piece of a timber stake between the railway lines near the overhead bridge. The broken end of this piece of stake perfectly matched the broken end of the stake found by Mr Gee in the early hours of 2 March. The broken strap from Ms Spillane’s handbag was also found near the railway line. The handbag itself was never found.
Confessional Statements by the Appellant
The appellant participated in an electronically recorded interview (the first record of interview) with police on the day of his arrest in which he admitted he was responsible for the murder of Ms Lewis. He said he had killed her by cutting her wrist with a piece of glass. He said that injuries to her throat were caused by his hands and that he was responsible for strangling her. He described where he had left items of her clothing and the sulky that he had taken from the Trotting Club, and where and how he had buried her. He was unable to say how the injury to the ear and upper neck had been caused. He said he could tell the police “nothing” about the attacks on Ms Tonkin and Ms Spillane.
In the early hours of 4 March, the appellant participated in a video “walk around” of the scene of the murder during the course of which he indicated to police the place where he said he had killed Ms Lewis. The police had not located that site in their earlier searches of the area. There was a large amount of dried blood on the ground and a piece of glass was found on a nearby seat. The appellant said he had used the piece of glass to cut the deceased’s wrists. A button, a strap from Ms Lewis’ skirt and a twenty cent piece were also found at the site.
Just over twelve months later, the appellant sought an interview with police in which he resiled from his earlier confessional statements. He maintained this later stance at trial.
Because the confessional material formed a major plank in the Crown case, it is necessary to look at the nature and extent of the confessions in more detail. It is important to note however, that at no time has the appellant challenged the authenticity of the first record of interview or the statements made in the video walk around, save for one matter of alleged police fabrication, to which I shall refer later. Rather, he challenges the reliability of the confessional material given the manner and circumstances in which the admissions were made, contending that he was responding to suggestive questioning by the police in circumstances where he was seeking to protect himself, given his past experience with police, and in particular, with the Lithgow police.
It is convenient to note at this point that the Crown relied upon other confessional statements allegedly made by the appellant to non-police witnesses. The appellant denied having made these other confessional statements.
The First Record of Interview
In the first record of interview made on the night of his arrest, the appellant described his movements from the evening of 1 March onwards. The parts of the record of interview which, on the appellant’s case, called for particular scrutiny were as follows:
“Q 39     … Are you able to outline your movements to me for the evening of Saturday the 1st of March 1997 and the early hours of Sunday the 2nd of March 1997?
A            Starting from when I left home?
Q 40      Yes.
A            I’ve left home with a friend, we went up the street, we split up. He went home and I went up to the railway crossing bridge.
Q 41      What happened after that?
A            I just sat there and then this girl come walkin’ up and I just grabbed her.
Q 42      And what happened after that?
A            She walked down to that track thing and I just killed her.
…
Q 45      Are you able to describe that girl to me?
A            Dark hair.
Q 46      Are you able to tell me the approximate age of the girl?
A            About 18, 19.
Q 47      Are you able to tell me which direction the girl walked from?
A            Down the bottom of the swimming pool.
Q 48      By that do you mean she walked from the swimming pool up towards the railway level crossing which crosses the railway line at Lean and Bennetts?
A            Yes.
…
Q 54      Was any other person with you at that time?
A            No.
…
Q 57      Are you able to tell me what happened immediately after you grabbed that girl?
A            She started cryin’.
…
A            I had hold of her, behind her back and shoulder blade.
Q 60      Now, are you able to tell me which direction you walked from the railway crossing?
A            Across the paddock and straight through the gate.
Q 61      And where did you take the girl at that time?
A            Underneath a tree where the seat things are.
…
Q 65      Are you able to tell me if you removed that girl’s clothing at that time?
A            Yes.
Q 66      Are you able to tell me what other items of clothing were removed at that time?
A            All of them.
Q 67      Are you able to tell me at what location you removed the young girl’s clothing?
A            At the cinders track.
…
A            We went down the track thing.
Q 74      And what happened then?
A            Killed her.
Q 75      Are you able to tell me how you killed that girl?
A            Cut her wrist.
Q 76      And how did you do that?
A            Piece of glass.
Q 77      Where did you obtain that piece of glass?
A            On the ground beside me.
Q 78      I’ve been informed that the girl’s also suffered head injuries. What can you tell me about that?
A            I tried to pick her up. She was too heavy.
Q 79      I’ve been informed that the girl also received a stab wound to the left side of the neck. What can you tell me about that?
A            That might have been from the piece of glass.
Q 80      I’ve been informed that the girl also suffered a number of other injuries to the throat. What can you tell me about that?
A            They were from me hands.
Q 81      I’ve been informed that the girl died from strangulation. What can you tell me about that?
A            Yes.
Q 82      Were you the person responsible for strangling the young lady?
A            Yes.
…
Q 113     Are you able to tell me how long from the time you grabbed the girl at the railway overcrossing to the time you killed the girl?
A            An hour.
Q 114     Are you able to tell me what happened during that hour?
A            I just sat down and she sat down. She was crying.
Q 115     Are you able to tell me if anything else happened in that hour?
A            Nothing else happened.
…
Q 120     I’ve been informed that the girl had an injury to the side, the right side of her head consistent with a blow from a stick or similar object. Are you able to tell me how that injury occurred?
A            No.
…
Q 196     Was any other person with you when you killed the girl Alison Lewis?
A            No.
…
Q 235     And you sustained that injury to her wrist?
A            Yes.
Q 236     Are you able to tell me the purpose of sustaining that injury to her wrist?
A            No.
Q 237     Was it your intention at that time to, when you cut her wrist to kill her?
A            No.
Q 238     Are you able to tell me at what point you decided to kill her?
A            I dunno.
…
Q 287     You indicated earlier that you used a piece of glass to cut the girl’s wrist. Is that correct?
A            Yes.
Q 288     Are you able to tell me if you can remember using that same piece of glass to inflict any other injuries on her body?
A            … on her other wrist.
Q 289     Right. So you’re indicating to me now that you lacerated both wrists?
A            Yes.
…
Q 348     … Jay, you indicated earlier that you strangled the girl. Are you able to indicate to me how you did that?
A            With me hands.
…
Q 354     … When you said you placed, you strangled the girl with your hands do you mean that you placed your hands around the girl’s throat?
A            Yes.
Q 355     O.K. Can you explain to me where you hands were in relation to the girl’s throat at that time?
A            What do you mean explain?
Q 356     Are you able to tell me where you[r] thumbs were at that stage?
A            No.
…
Q 378     And at what location was she on the ground when she scratched you?
A            Underneath the tree.
Q 379     Are you able to tell me what you were doing to the girl at that time?
A            I had my hands on her throat….”
The Video Walkabout

The appellant essentially maintained this version of events during the video walk around. He said:
“Q31     … Can you now indicate to me what happened in this area here?
A            This is where I killed her.
Q32       Right. I might ask you at this point in time just to keep your voice a little bit louder. Again, I ask you, can you tell me what happened in this area here?
A            This is where I killed her.
Q 33      Right. Can you tell me how you killed her?
A            With me hands.
Q 34      Right. Are you able to tell me what you did with your hands to kill her?
A            Put ‘em on her throat.
Q 35      Is it the case that you strangled the girl?
A            Yes.
Q 36      Right. Are you able to tell me at the time that you were strangling the girl, did you receive any injuries.?
A            On me hand.
Q 37      Are you able to tell me which hand?
A            Left.
Q 38      And are you able to tell me how you received those injuries?
A            Got scratched.
Q 39      Are you able to tell me what happened after the person, Alison Lewis, stopped struggling?
A            I just sat over there.
Q 40      Are you able to go to the point where you sat?
A            Just at the end of the seat.
Q 41      And show me. Can you walk to that area.
A            Just here.
Q 42      I notice at this point a piece of broken brown glass sitting on the seat. Can you tell me anything in relation to that piece of glass?
A            That’s a bit of glass I had.
Q 43      Can you tell me what you did with that piece of glass?
A            Cut her wrist.
Q 44      Can you tell me if you cut her wrists before you strangled her or after?
A            After I think.
The Second Record of Interview
In a further record of interview given on 4 July 1997 the appellant withdrew his confession and implicated a friend, Aaron Martin and another unnamed man in Ms Lewis’ murder, although he admitted that he had been present when Ms Lewis was abducted and taken to the cinders track in the sportsground. He explained the scratches on his hand as having occurred when he had put his hand over her mouth to stop her screaming when she was first abducted. He said that when they got to the cinders track he had withdrawn because the other two men began “slapping her and stuff like that” and he wanted nothing to do with that. He said he had left the area for thirty to forty minutes and “went down … near the toilet blocks … [and] had a shot”. When he returned he found Ms Lewis’ naked body tied to the seat by her neck. He said she was dead at that stage, because “[s]he wasn’t moving”. He said her wrists were cut. He denied having pointed out to the police during the video walk around a piece of glass which he said he had used to cut Ms Lewis’ wrists. Rather, he said, the police had found the piece of glass themselves when one of the police officers picked it up in his torch light. This is one matter of alleged fabrication to which I referred in para 22.
The appellant agreed with the interviewing police officers that the first record of interview and his initial statement to police, in which he had admitted that he killed Ms Lewis, were given of his own free will. When questioned about his reason for initially admitting responsibility for the murder, he said:
“A          Well, you said from the start that I had to think about myself, I was the only once (sic) that could help meself.
Q 287     In relation to what?
A            To this.
…
Q 311     Are you able to tell me why on the night of your arrest you stated that you were the person responsible for her murder?
A            Youse told me I had to, that I was the only one that could help meself, and that’s what I did. I’ve told the truth on many occasions when Mr Carter’s picked me up before and never believed me, so ---
…
Q314     So why would you lie if you were trying to help yourself?
A            I was still with these people, so I wanted a story to tell ‘em.
Q315     Right. Were you under any threat to make that interview?
A            Nuh.”
Evidence At Trial
The trial on all three counts proceeded in the Supreme Court of New South Wales at Sydney before Sully J and a jury of 12 between 23 November 1998 and 14 December 1998. The appellant pleaded not guilty on each count.
In addition to the confessional statements made to the police, the Crown relied upon forensic evidence, statements to other witnesses which contained confessional material and other circumstantial evidence. The forensic evidence was extensive.
Dr Lawrence, forensic pathologist, performed the autopsy on Ms Lewis’ body. He concluded that her death was due to ligature strangulation. This was not subject to challenge. Dr Lawrence also gave detailed evidence as to the injuries to Ms Lewis’ body, how they were caused, and whether they were caused before or after death.
He described the abrasion across the right ear and upper right neck and said that could have been caused by the broken end of the stake which had been found on the railway line.
He described three incision wounds on the neck, the incision wounds on each wrist and an incision wound on the right thigh. He was shown the piece of glass which the appellant had identified in his video walk around as being the implement he had used to cut Ms Lewis’ wrists and asked “could any of the angles of that piece of glass cause any of the incised wounds which you saw?”. He answered:
“I don’t think so. The wounds that I saw are extremely sharp edged with no abrasion whatsoever and no curvature in the actual cutting. They ran straight across. The injuries I had seen inflicted previously by glass had tended to be curved and they tended to have blade edges, because it is not a sharp blade. The profile of the injuries that I have seen were of a very sharp object, in other words something like a knife, I assume.”
This evidence was not challenged.
Dr Lawrence also said the incisions could have been caused by any knife, including the swiss army knife seized from the appellant’s home on 3 March. He agreed, however, in cross-examination that there was “nothing in the nature of the wounds … that might indicate the nature of the blade or the size of the implement used”.
Dr Lawrence expressed the opinion that all Ms Lewis’ injuries could have been caused by one person although he accepted in cross examination that he could not say that they had been caused by one person.
During the course of their investigations the police had found a number of hairs on Ms Lewis’ skirt. Some of these were identified as head hair and some as pubic hair. DNA testing was carried out on the hairs. DNA testing was also carried out on Ms Lewis’ blood, on the appellant’s blood, and on the blood on the knife seized from the appellant’s home. Forensic testing was carried out on the sand in the pocket of the appellant’s flannelette shirt and the sand in the pit where Ms Lewis’ body was buried.
The DNA testing revealed that the blood found on the appellant’s cap, Nike shoes and on the knife could have come from the deceased. The frequency of the DNA material recovered from the knife was 1 in 2.5 million of the general population. There was a positive DNA match of one of the pubic hairs found on Ms Lewis’ skirt with that of the appellant. There was also DNA matching of the long hair on Ms Lewis’ skirt with the appellant’s blood.
There was no match on the forensic testing between the sand found in the pocket of the flannelette shirt seized by police and the sand from the sand pit where Ms Lewis’ body had been buried.
The appellant gave evidence in which he denied that he had killed Ms Lewis or had attacked Ms Tonkin and Ms Spillane. His evidence was that he had gone out about 12.30 or 1am on 2 March in the company of Aaron Martin. He gave details of his movements from then until he arrived home about 6 am the following morning, including details of his involvement in Ms Lewis’s abduction and his role in burying her.
The appellant’s then girlfriend also said the appellant had gone out at 1am in company with Aaron Martin. She said he had no money on him when he went out but had money when he came home about 6.15am. She said she only saw him with notes and did not know how much money he had. Ms Spillane, whose purse was stolen from around her neck when she was attacked, said the money in her handbag, which was no more than $10, could have included coins.
Aaron Martin also said that the appellant was wearing a flannelette shirt when they went out. He said that they had gone out together but separated just before 1am and he arrived home about 4am. He denied any involvement in any of the charges.
The primary link between the attacks on Ms Tonkin and Ms Spillane and the murder of Ms Lewis was the match of the two portions of the tomato stake. Photographic evidence overlaying a depiction of the stick drawn to scale over Ms Tonkin’s wound confirmed that the portion of the stake found by Mr Gee exactly matched the wound across Ms Tonkin’s back.
Ms Spillane said she thought the person who attacked Ms Tonkin was wearing a white t-shirt. Another witness, Victoria Wilson, who knew the appellant, said she saw him late on the evening of 1 March, between 11.30 pm and midnight at the Tattersalls Hotel in Lithgow, in the company of John Burns. She said he was wearing a white or light coloured t-shirt at that time, underneath a black tracksuit top and a baseball cap. John Burns confirmed that he was at Tattersalls Hotel with the appellant on Saturday night 1 March, although his evidence varied markedly as to the time he was there with him, giving differing versions of 11.20 - 11.45pm or “it could have been 7.30 - 8 o’clock”. He said the appellant was wearing a blue Holden t-shirt.
43 The appellant agreed that he frequented Tattersalls Hotel, but said he had been there on Friday 28 February, not Saturday 1 March.
Issues on the Appeal
There were three grounds of appeal. The principal ground was that the trial judge erred in directing the jury that the “cardinal question” for them was whether they believed the appellant. The second ground was that his Honour erred in preventing counsel for the appellant from cross-examining witnesses and addressing the jury about the possibility of the exhibits having been contaminated. These two grounds related to the murder count. The third ground challenged the guilty verdicts on the charges relating to Ms Tonkin and Ms Lewis as being unreasonable and/or as not supportable having regard to the evidence. It was conceded by the Crown that if the appellant succeeded on either the first or second ground and was thereby entitled to a new trial, there would have to be a new trial on all three counts.
Ground 1: That the trial judge erred in directing the jury that “the cardinal question for you is, do you believe him?”
The trial judge twice directed the jury that the “basic question” (in the first direction) or the “cardinal question” (being the language use by His Honour in the second direction) for them was whether they believed what the appellant had said in his evidence. Counsel for the appellant submitted that this posed the wrong question for the jury’s deliberation and was tantamount to a direction that their task was to choose between the Crown’s evidence and the evidence of the accused: see R v E (1995) 89 A Crim R 325 at 330 and R v Towner (1991) 56 A Crim R 221.
In order to determine whether these directions do reveal appealable error it is necessary to consider the structure of the summing up as a whole.
His Honour introduced the summing up with standard directions about the respective roles of judge and jury. He reminded the jury that the appellant was “entitled to be tried upon the whole of the evidence”. Again at an early stage in the summing up his Honour gave directions about the “burden of proof”. He said:
“The second principle in law that I put to you, concerns the burden of proof. It can be put simply enough. At all stages of this trial, the Crown bears the burden of proof. The burden of proof does not ever shift to the accused. When I speak, as I will be doing later in the summing up, of ‘the case for the accused’, I will not be implying, and you should not infer, that the burden of proof has in any way shifted to him.
When I canvas with you and as I will have to do, things that the accused himself has said in his evidence, I will not be implying, and you should not infer, that he bears any onus of proof, any burden of proof I should rather say, on the essential issues as I will set them out for you in that document containing the questions that you have to answer. At all stages the burden of proof is upon the Crown.”
The document to which his Honour referred in this passage was a set of questions given to the jury to assist them in their deliberations.
His Honour next dealt with the standard of proof. He directed the jury as to how they should go about that task and told them that they must dispel preconceived notions from their deliberations, that they were not to approach the evidence by attaching sympathy to or criticism of the person giving the evidence. He gave directions as to the correct approach as to the drawing of inferences, he explained how they should deal with anomalies that might exist in the evidence, and also what was meant by circumstantial evidence and how to deal with it.
His Honour then identified for the jury what he described as their “the exercise … at the very heart of [their] work”, namely, the identification of the evidence. He continued:
“… having identified the evidence, you will come of course, to the central part of your work and that is to the task of evaluating the evidence. …
The first thing for you to bear in mind, and the basic question for you, about each witness is, do you believe the witness? … not do you like the witness? … not do you respond sympathetically to the witness? The question is do you believe the witness? That’s the ultimate question for you.
You may answer it in either of three ways. You may say, ‘Yes I do’; ‘No I don’t’; or, ‘My position is in between those two extremes. I believe some of what the witness has said but I am not persuaded that I believe the balance.’ That is entirely a matter for you, but that is the starting point. Do you believe what the witness has said?
When you have settled that question, it becomes necessary for you to decide where that evidence, if you accept it, leads you.”
About a third of the way through the summing up on the murder count his Honour made some introductory comments about the evidence of the accused. He said:
“When you come to evaluate his evidence, as of course you will have to do with great care, you treat him as you would treat any other witness - not more harshly; not more leniently. The basic question is the same. At the end of the day, do you believe what he has said? That is the basic question for you when you are assessing and evaluating his evidence.” (emphasis added).
He said that direction needed amplification. He warned the jury that although the Court always attempted to see that every witness was treated fairly and equally, the witness box was not necessarily “a level playing field”. He said that a witness who was “inarticulate… [or] not … readily at ease… in the kind of closed atmosphere that one has in … the Court, such person is, in the nature of things, at a disadvantage … and that those are matters which are to be given a sensible, prudent, discerning place in that process of rational analysis and evaluation of the evidence”. His Honour referred particularly to the submissions the Crown had made as to the appellant’s “callous … disposition” in the witness box, directing the jury that they “always [had] to be mindful that people are not equally gifted in the way that they can express themselves, and deal with cross-examination, in a trial such as the present one”.
At the beginning of the second day of the summing up, and having concluded his general opening remarks, the trial judge gave to the jury the list of questions to which I referred earlier. No objection was taken at trial or on appeal to this procedure or to the questions themselves. It reflected a frequently adopted practice by judges in criminal trials in this State.
The questions were:
“Question 1:
Has the Crown proved beyond reasonable doubt that the victim, Alison Marie Lewis died on 2 March, 1997? If so, then:
Question 2:
Has the Crown proved beyond reasonable doubt that the cause of her death was ligature strangulation? If so, then:
Question 3:
Has the Crown proved beyond reasonable doubt that the victim was so strangled by the accused? If so, then:
Question 4:
Has the Crown proved beyond reasonable doubt that the accused, at the time he strangled the victim, had the intent to kill the victim?”
His Honour indicated that the jury would have no difficulty in answering questions 1 and 2. However, he dealt in some detail with Dr Lawrence’s evidence in relation to question 2. In doing so, he dealt with the injury to the ear and neck and with the question whether the broken end of the stake found on the railway line was capable of producing that kind of injury. He reminded them that the strangulation had been caused by a ligature and not by bare hands. He referred to Dr Lawrence’s opinion that all of Ms Lewis’ injuries could have been inflicted by one person, but that he could not exclude “one way or the other” whether the injuries were inflicted by more than one person.
His Honour proceeded to direct the jury that if the answer to question 2 was “Yes” they would then proceed to question 3, which, he said “is a core question for you, a question of real controversy in relation to count 1. Has the Crown proved beyond reasonable doubt that the victim was so strangled by the accused?” (emphasis added).
His Honour dealt briefly with question 4 before dealing with question 3, directing the jury that: :
“…it is important for you to address [the facts] in terms of the questions, bearing in mind it is the burden of the Crown to prove the facts beyond reasonable doubt.” (emphasis added)
His Honour then returned to question 3. He summarised both the Crown case and the case for the appellant in considerable detail. He discussed the first record of interview, the admissions made by the appellant in it and the very significant attack made upon its reliability by the appellant, including reference to the appellant’s explanation as to why he had made the apparently damning admissions. His Honour directed the jury that it was a matter for them as to “where you think the truth lies … but remember, it is for the Crown affirmatively to establish the reliability of the confessional material upon which it relies” (emphasis added).
Having further discussed the conflicting positions of the Crown and the appellant in relation to the confessional material he concluded:
“If, at the end of your consideration of all this material represented by things said by the accused to the police, you think that there remains a reasonable possibility that those damaging things upon which the Crown relies are in truth not safe to act upon, then you will not act upon them and you will set aside this part of the Crown case.” (emphasis added)
His Honour dealt with the other alleged confessional material made to non police witnesses, again reminding the jury that they had to assess whether there was a “reasonable possibility” that the persons giving evidence of those admissions had not accurately recalled what was said to them. He likewise gave a warning about Aaron Martin’s evidence and that if they had “real doubts about the reliability of Aaron Martin’s evidence, then so much of the Crown case as relies upon that evidence becomes … cancelled out”.
His Honour moved to the case for the appellant. He described what he termed “the essence of the [appellant’s] case” and outlined what the appellant had said in his sworn evidence before the jury, including his evidence of his connection with the attack on Ms Lewis that night; his evidence as to why he had buried the body; his explanation as to why he had made the incriminating statements to the police; and his denial of having made the incriminating statements to the other Crown witnesses.

His Honour summed up the essence of the appellant’s case in these terms:
“He says, if one can bring the other elements in his case together, that there is indeed a sense in which he was the wrong person, in the wrong place, at the wrong time; but it is not a sense inculpatory of him; that it was in fact, his misfortune, and coincidental misfortune, that he found himself confronted with events that he describes in such length and in such detail in his evidence.”
His Honour then gave this direction:
“Once again the cardinal question for you is, do you believe him? Do you think that the substance of that version of events, as he has given it to you, is reliable and safe to act upon?” (emphasis added)
It is this direction and that set out in para 51 of these reasons which are the subject of ground one of the appeal.
His Honour continued:
“The assessment of the accused’s evidence has to be approached in much the same way as the assessment of Aaron Martin’s evidence, for the accused too, was cross-examined at length, without ever as it were, breaking down and saying, ‘Well I was right the first time. I did kill her.’ So in his case, as in that of Aaron Martin, it is necessary to look at the collateral attacks and the testing of other things which can be looked at, in order to see whether, in general at least, he is reliable in the things that he says when explaining what happened from his point of view on the night in question.”
His Honour outlined the attack made by the Crown on the appellant’s version of events given at trial and concluded:
“Let us pause there ladies and gentlemen. That completes what I want to say to you … on question 3 of count 1 and the summary of the accused’s case on that same question. They are the contending cases that you have to weigh when you are resolving that question. May we look at it again in the form in which I have set it out for you: Has the Crown proved beyond reasonable doubt that the victim was strangled by the accused?” (emphasis added).
Shortly afterwards, there was the following exchange between his Honour and counsel for the appellant:
“ZAHRA:              … when your Honour had started to refer to the accused’s case, in particular, the accused giving … evidence. Your Honour had said something to the effect of the question is, do you believe him? Your Honour has gone at some length up until now, to talk about the onus of proof. I accept your Honour, at the start, talking about that. He gave evidence. He need not have given evidence. Your Honour made it very clear to the jury at that point of time, the question do you believe him, is no doubt an important one in relation to his credibility.
HIS HONOUR      Where is the question?
ZAHRA:                It is the question in relation to - he is questioned in relation to his credibility at the time.
HIS HONOUR:     Is the position not fairly put in a way which would provide the attention of the jury to concentrate upon and ultimately framed in terms that stress the proper onus of proof as Q3 does. That is what’s required isn’t it?
ZAHRA:                If your Honour please.”
The matter was not raised again by counsel for the appellant. The complaint now made in respect of the two directions which are the subject of challenge on the appeal is that they were tantamount to a direction that the jury’s task was merely to make a choice between the Crown’s evidence and the accused’s evidence, whereas, the correct question for their determination was whether the Crown had proved its case beyond reasonable doubt. It was submitted that the error was compounded by the emphasis given in the second of the two directions by his Honour’s employment of the phrase “the cardinal question for you is, do you believe him?”.
In Towner Allen J (Priestley JA and Badgery-Parker J agreeing) said at 228-229
“A trial judge has a delicate task when directing a jury in respect of a confession challenged as a fabrication pursuant to a conspiracy by police. There will be, usually, diametrically opposed versions given by the police on the one hand and the accused on the other. Both cannot be right. One must be wrong. In that sense a choice is predicated. The trial judge must deal with the opposing versions, however, in such a way that it is made clear to the jury that it is not their task to make that choice, that is to determine which of the versions it is that is the correct one and which it is that is the false one. Their task is simply to determine whether they are satisfied beyond reasonable doubt of the guilt of the accused - which not uncommonly will mean satisfaction beyond reasonable doubt of the truth of evidence of confessions. If they are so satisfied in respect of the confessions it follows that they have rejected the accused’s version. That, however, is the result of accepting the police version. It is not the result of choosing it in preference to the version given by the accused. That it is not a matter of choice is made manifest by a consideration of the position where the jury is not satisfied beyond reasonable doubt of the reliability of the police evidence in relation to the confessions. If they are not so satisfied they must acquit. But that does not mean that they have chosen the accused’s version in preference to that given by the police. They well may have been very unhappy about his version but still have had reasonable doubt as to the reliability of what the police had said. Indeed they could positively have disbelieved his version yet still have had such doubt as to the police version. Liars on both sides of the record are not an unknown phenomenon.”
Towner was a case of police fabrication of confessional material. So was R v E, the other authority relied upon by counsel for the appellant. This is not such a case. However, like the case where there is an allegation of a fabricated confession, and as is invariable in any case where an accused gives evidence denying commission of the offence, this case involves a conflict between the Crown case and that of the accused. The conflict arises here because of the appellant’s retraction of the confession made in the first record of interview. When there is such conflict, the principle which operates is fundamental, reflecting the basic tenet of a criminal trial, namely, that at all times the jury’s task is to determine whether the Crown has satisfied them beyond reasonable doubt of the guilt of the accused of the offence charged. It is necessary to ensure that the directions given to the jury reflect that fundamental tenet.
That is not always a simple task. In Liberato v The Queen (1985) 159 CLR 507, the High Court gave consideration to the problems which can arise in such circumstances. Brennan J said at 515:
“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make that clear to the jury.”
However, Deane J at 519 acknowledged that where there were conflicting accounts it was “sometimes unavoidable and commonly unobjectionable” for references in the summing up to be made to ‘choice’ between the competing versions. His Honour said:
“… on a number of occasions, his Honour directed the jury in terms which indicated that the overall questions for them essentially involved the making of a ‘choice’ between prosecution and defence evidence: … ‘The case may well be one as I have put to you before, where the real question is who do you believe on the whole of the evidence, [the complainant] or the accused?’ Provided that they are accompanied by clear and unequivocal directions about the criminal onus and standard of proof, express or implied references in a summing up to a ‘choice’ between particular witnesses are, no doubt, sometimes unavoidable and commonly unobjectionable. The main significance of the directions about having to make a ‘choice’ lies, in the present cases, in their clear suggestion that the ‘real question’ in the cases turned upon a mere ‘choice’ between the evidence of the complainant and that of the accused and in the possible contribution of that suggestion to the overall effect of the misdirections about onus of proof.”
Brennan and Deane JJ were in the minority in Liberato. However, the passages to which I have referred are well recognised statements of the correct principles to be applied in such circumstances.
Challenges to directions given by trial judges where there is a direct conflict in the evidence are not infrequent, perhaps reflecting the difficulty which confronts a trial judge in adequately directing a jury in a way which is both correct and clearly understandable by the jury. However, the authorities reveal, as is clear from Liberato, that a reference to “choice” or to the question “who is to be believed” does not of itself give rise to appealable error provided that the correct question is clearly kept in the forefront of the jury’s mind. Thus, for example in Tarantino (1993) 67 A Crim R 31, a case of an alleged fabricated record of interview, it was held that the trial judge’s statement that “clearly somebody in this courtroom has told you a pack of lies”, was not appealable error, given the summing up as a whole. As Hunt CJ at CL said at 36:
“Taken by itself, that direction stated the issue wrongly, and it should have been accompanied by a warning that the issue was whether the Crown witnesses were telling the truth (not the appellant), and that she was entitled to be acquitted if the jury were not satisfied with the veracity of the Crown evidence even though they may not have accepted the version which she had given. But that statement did not stand alone. The judge went on to pose the test correctly, as to whether the police and Customs witnesses were telling the truth. This followed immediately upon entirely accurate directions as to the onus of proof …”
In R v Dwyer [1999] NSWCCA 47, Dunford J (Meagher JA and Grove J agreeing), having referred to the trial judge’s direction that “for essential purposes in this case, it is a case of your having to make a choice between two accounts, diametrically opposed, from the complainant on the one hand, and the accused on the other”, stated:
“… if it had been left on the basis of a ‘mere choice’ between the evidence of the complainant and the evidence of the appellant, the summing-up would have been defective and a new trial justified: Liberato and Others v The Queen (1985) 159 CLR 507 at 515, 519 per Brennan J and Deane J. …
On the other hand, a reference to there being two diametrically opposed versions given by the complainant and the appellant, and even the reference to the jury having to ‘choose’ between the two versions, will not necessarily be fatal provided it is made clear to the jury that it is not ‘merely’ a ‘choice’ between the two versions, but that they must be satisfied beyond reasonable doubt that at least in its essential ingredients the version given by the complainant is true: R v Beserick (1993) 30 NSWLR 510 at 528-9, R v PAH (unreported - CCA - 18 December 1998) at 8-10.”
In R v PAH (unreported, New South Wales Court of Criminal Appeal, 18 December 1998), Wood CJ at CL (Sheller JA and Dunford J agreeing) said:
“It will generally be advisable, particularly when the accused has given evidence, to advise the jury that the Crown case depends upon them accepting that the evidence of its principal witness was true beyond reasonable doubt, notwithstanding the denial by the accused, and that they do not have to believe that he was telling the truth before he is entitled to be acquitted.”
The Court of Criminal Appeal held, however, that the summing up, taken as a whole, made it plain to the jury that they were not simply expected to choose between two competing versions.
In R v DJK (1997) 96 A Crim R 443 at 447, a case of alleged sexual assault, the evidence of the complainant and the accused was the major evidence in the case. The New South Wales Court of Criminal Appeal (per Hunt CJ at CL) stated the principle in these terms:
“The issue [for the jury] … is never a choice between the evidence of the complainant and the evidence of the accused: the jury must accept the evidence of the complainant as being true beyond reasonable doubt, notwithstanding the sworn denial of the accused, and they do not have to believe that the accused is telling the truth before he is entitled to be acquitted.”
In Latham v R [2000] WASCA 57, however, Malcolm CJ drew attention to the importance of there being a “specific direction to the jury to the effect that even if they positively disbelieved the accused they still could not convict him unless the Crown had satisfied them of the appellant’s guilt beyond a reasonable doubt” and that a failure to do so constituted appealable error.
Here, the trial judge’s direction that the “basic question” and, later the “cardinal question” for the jury was given during the course of giving directions as to how to deal with the evidence of the various individual witnesses. He had pointed out that in the case of Aaron Martin, if there was real doubt about the reliability of his evidence, they could not act upon it. He told them that the appellant’s evidence had to be treated in the same way. He had earlier directed them that the Crown had to “affirmatively establish the reliability” of the confessional material.
It is apparent, from the context in which his Honour gave the directions of which complaint is made that he was seeking to emphasise that if they believed the appellant, they would have to acquit. It was not necessary that he expressly say so. The question for determination here is whether he was required to give a direction expressly dealing with the circumstance that the jury not believe the appellant as Malcolm CJ in Latham v R stated was necessary. Put another way, the question is whether the absence of an express statement to the effect to which I have referred constituted appealable error.
Although the phraseology used by his Honour was unfortunate, in my opinion, the two directions taken in the context of the summing up as a whole could not have misled the jury nor deprived the appellant of a chance of acquittal. His Honour made it clear that the jury was to keep in the forefront of their deliberations the question whether the Crown had proved beyond reasonable doubt that the appellant strangled Ms Lewis. His Honour did not at any stage direct the jury that it was a matter of choice between the Crown’s case and the appellant’s case, let alone a matter of “mere choice”: see R v Dwyer.
The directions were also accompanied by considerable emphasis throughout the summing up that “it is for the Crown … to establish the reliability of the confessional material upon which it relies”; “if at the end of your consideration of all this material … [of] things said by the [appellant] to the police, you think that there remains a reasonable possibility that those damaging things upon which the Crown relies are in truth not safe to act upon, then you will not act upon them and you will set aside this part of the Crown case” and that the Crown bore the onus at all times to prove the guilt of the accused beyond reasonable doubt.
I should finally avert to one more matter. The complaint made by counsel to the trial judge appears to raise a question as to how his Honour dealt with the credibility of the appellant. After a brief exchange between his Honour and counsel, counsel appears to have accepted that the correct question had been left to the jury. Thus strictly the point now taken was not taken at trial. In the normal course, leave would have been required to raise the matter on appeal: r 4 Criminal Appeal Rules 1952 (NSW). However, I have not considered it appropriate that the Court require the appellant to seek leave as a point was taken in respect of that part of the summing which was subject of complaint and if leave had been formally sought, it would have been granted. That is because if the directions could have deprived the appellant of the chance of an acquittal, the jury’s verdict should not be allowed to stand.
In my opinion, the first ground of appeal has not been made out.
The Second Ground of Appeal: “that his Honour erred in preventing counsel for the appellant from cross-examining witnesses and addressing the jury about the possibility of the exhibits having been contaminated”.
It will be recalled that the Crown case was that pubic hairs had been found on Ms Lewis’ skirt and that the appellant provided samples of pubic hair for scientific testing.
At the commencement of the cross-examination of Senior Constable Kolder, who attended at the scene of the murder and was responsible for the packaging and safekeeping of the exhibits, trial counsel for the appellant questioned him about “the continuity of some of the exhibits”. He was asked whether there was any seal on the container holding the appellant’s pubic hair samples. Senior Constable Kolder was unsure. He said “I don’t know. I don’t know. I don’t think there were”. It emerged from the cross-examination that there was no record of how many pubic hairs were in the container; that as there were no seals, ready access could be had to the sample container; that the containers were kept in a locked room to which only Senior Constable Kolder had the key; but that there was no system for recording who had access to the samples and no system for cross-referencing what had happened with the samples.
The cross-examination proceeded:
“Q          So, so far as the integrity of these particular hairs are concerned that were taken from Mr Short, that we would have to solely depend on your integrity?
A            Absolutely.
…
Q            This container with those pubic hairs was in your possession at the same time as the pubic hair on the dress?
A            No, not at the same time, that was locked in an exhibit refrigerator and the dress with the pubic hairs on it was in another exhibit room and the examinations were conducted separately.
…
Q            So when you found the pubic hair on the dress, you had already in your possession any number of pubic hairs from Mr Short?
A            I understand what you are saying. You are questioning my integrity.”
After giving this last answer Senior Constable Kolder gave details of finding the hair on the skirt and of dealing with samples of the appellant’s pubic hair. He said:
“I removed these from the ‘frig on 6 March and packaged them and sent them away on 7 March. I remember getting them from the ‘frig on 6 March. I conducted my examination of the dress on the 4th with another officer with me at the time there to hold things while I photographed them, just to assist me generally because you can’t take photographs easily. But other than that, no I don’t know how else I can please you, other than to say I located the hairs on the dress and they are a separate issue to the hairs that are in the container.”
The trial judge raised with the appellant’s counsel whether it was going to be contended that Senior Constable Kolder’s “integrity was open to doubt in the way in which he handled the materials”. Counsel responded frankly that his instructions did not extend to putting it that highly.

The trial judge then asked whether there was going to be “a positive case made for the proposition that there was any cross-contamination … of these samples … that is … is there … positive evidence which if accepted, would give colour to that suggestion”.
Counsel responded:
“… I would no doubt have to … wear the evidence as it has been revealed and I think the officer has answered quite a number of questions in that regard.”
There was also an issue raised by the appellant’s counsel at trial in relation to the blood and sand found on the swiss army knife. He contended that, having regard to all the evidence, there was a possibility the blood was placed on the knife after it was seized by the police, and that he should be permitted to put to the jury that such an inference could be drawn.
The trial judge rejected counsel’s application that he be permitted to do so. His Honour pointed out that it was important to keep separate the question of contamination and the question of improper handling. He said:
“I won’t stop you putting, provided you put it in a way consistent with the evidence, the proposition that you want to argue about contamination but I will give the Jury a direction of the kind I have told you, a direction about drawing inferences and you need to be careful not to confuse what is a reasonable guess and suspicion.”
His Honour then dealt with the question of improper handling:
“I don’t think you have the evidence that would ask the Jury to infer that kind of impropriety. It is one thing to say the evidence, on a reasonable view, might suggest a certain clumsiness in dealing with material of this kind. This is different from saying that one can posit a perfect standard which is not being achieved, therefore there has been some positive impropriety. I don’t think so.”
His Honour took a similar position in relation to the knife:
“… I see a great deal wrong with asking the Jury, in an oblique kind of way, to make a finding that the knife was deliberately tampered with.”
His Honour then ruled:
“I could understand how one would argue that because of the combination of all those matters which you put, the Jury should exclude from its consideration, in weighing up the strength of the Crown case, the knife. That is an element in the Crown case which the Jury should simply exclude because of that contamination of circumstances. I see nothing wrong with that but I am not at all happy about an argument which does not put, in a precise way to the Jury based upon some precise evidence, an affirmative submission of malpractice but invites the Jury, in an oblique kind of way, just to do it as a matter of as we said earlier, guess work or suspicion rather than a rational inference.”
Counsel for the appellant submitted that the effect of this ruling was to reverse the onus of proof. He said that the appellant was not in a position to give evidence of actual tampering. Notwithstanding that, it was submitted that, as the onus at all times remained with the Crown, it was permissible for the jury to be told that they had to be satisfied that there was no reasonable possibility of deliberate or accidental tampering with the exhibits before the jury could use the evidence of the findings in relation to the hair and the knife.
I do not agree. In the first place, the submission as made to this Court goes beyond the restriction placed upon the appellant’s trial counsel. His Honour drew a clear distinction between the possibility of accidental contamination - a matter which he said could be put to the jury and the possibility of deliberate contamination - a matter about which there had been no cross-examination. It was not open in those circumstances for trial counsel to suggest to the jury that there was such a possibility.
The Third Ground of Appeal: “that the verdicts on counts two and three were unreasonable and/or cannot be supported having regard to the evidence”.
The appellant submitted that the evidence in respect of the attacks on Ms Tonkin and Ms Lewis was “limited in the extreme” and insufficient to support the verdicts of guilty. The paucity of evidence was demonstrated, it was argued, by the fact that neither victim saw who her attacker was; Ms Tonkin was not able to say if she had been attacked by one man or two; and there was no other identification evidence. Although counsel accepted that the broken stick provided a link between the appellant and the two other offences he submitted that was insufficient for the jury to be satisfied beyond reasonable doubt that the same person attacked all three victims. It was further submitted that for a jury to be satisfied beyond reasonable doubt, the jury would have had to be satisfied that there was no possibility of another person using the same or a similar stick to attack Ms Spillane and Ms Tonkin, as was used in the attack on Ms Lewis.
Counsel also pointed out that Ms Spillane’s evidence that her attacker was wearing a white shirt was contradicted by “virtually every witness who gave evidence of seeing the Appellant [on the] night” of 1 March. This is true, save for Ms Wilson’s evidence that the appellant was wearing a white shirt when she saw him at about 11.45pm. In addition, Mr Burns did not support the other witnesses who gave evidence that he was wearing a coloured flannelette shirt.
This ground has not, in my opinion, been made out. There was sufficient evidence before the jury from which the inference could properly be drawn that the accused was responsible for the two attacks. First, there was the vital match of the two pieces of stake - the evidence convincingly demonstrating that one portion had been used on Ms Tonkin and Ms Spillane, and the other portion had caused the injuries to Ms Lewis’ face and neck. There was the fact that only one male voice was heard during the attack on Ms Tonkin and Ms Spillane, and one male voice during the attack on Ms Lewis. There was the time at which the offences occurred - the attack on Ms Lewis commencing shortly after Ms Tonkin and Ms Lewis had escaped from the area. There was the theft of Ms Spillane’s purse and the fact that the appellant had some money on him on his return home, whereas he had had none on him when he had gone out, although the fact that Ms Spillane did not have much money on her and that some of it may have been in coin was a factor for the jury to consider. Given the evidence which was available, the absence of direct identification evidence does not make the verdict unreasonable nor lead to a conclusion that it cannot be supported on the evidence.
In my opinion, the appeal should be dismissed.
The Crown Appeal
The Crown appealed against sentence. As this appeal was heard together with the appellant’s appeal against conviction, it is convenient to maintain the same terminology as in the appeal, namely, the Crown and, in the case of Mr Short, the appellant.
The appellant was sentenced on 7 May 1999 to a term of 20 years imprisonment for the offence of murder, consisting of a minimum term of 16 years with an additional term of 4 years. He was sentence to a fixed term of 5 years for the offence of robbery with corporal violence and to a fixed term of 2 years for the offence of assault occasioning actual bodily harm. Each sentence was ordered to commence on 3 March 1997, the date of arrest, the respondent having been in continuous custody since that date.
The respondent was aged 21 years 7 months at the date of the offences.
The respondent had had a difficult childhood. His mother, who was only 16 when the appellant was born, and father had separated about a year after his birth. His mother’s care of the appellant’s had been erratic. Although his father had tried to provide for him and he had had the formal care of him for a while, he had not been able to maintain that care and welfare authorities had intervened. The appellant’s father had suffered health and psychiatric problems.
The respondent’s mother died in 1989 when the respondent was 13. The respondent’s juvenile criminal record commenced shortly after that. That record included a number of offences of dishonesty and two firearms offences when the appellant was aged about 14 and 16 respectively. The first of these firearm offences was malicious wounding. The second involved the appellant repeatedly firing live ammunition at two young persons fishing in a dam. The appellant’s stated reason for the commission of the second offence was that he wanted to “scare” the young persons. Both charges were dealt with in the Children’s Court.
Dr Westmore, a psychiatrist, was called on behalf of the appellant. He diagnosed the appellant as suffering from a personality disorder with antisocial traits although he accepted that it was possible that the appellant could have an antisocial personality disorder. Whatever be the correct categorisation of his disorder, Dr Westmore classified the appellant as having a personality disorder of significance. He did not consider, however, that mental illness played any part in the respondent’s commission of the present offences. Dr Westmore was not able to predict whether the appellant would remain dangerous in the future, because of his then refusal to acknowledge the offences of which he had been convicted.
The appellant has had a well entrenched drug and alcohol problem. At the time of Dr Westmore’s consultations with the appellant, Dr Westmore considered the appellant lacked insight into this problem.
The Crown submitted that the sentences imposed upon the appellant “were permeated by error”. Three specific errors were identified. First, it was submitted that his Honour failed to give sufficient weight to the appellant’s mental condition. Secondly, it was submitted that the imposition of concurrent sentences involved appealable error because the attacks on Ms Tonkin and Ms Spillane involved quite separate offences committed against different victims and ought not to be treated as part of a single course of criminal conduct. Thirdly, it was submitted that his Honour failed to have proper regard to the fact that the attacks on Ms Tonkin and Ms Spillane provided important contextual background in the consideration of what was done to Ms Lewis. The Crown also submitted that the sentences imposed were manifestly inadequate having regard to the overall criminality of the three offences.
Failure to Give Sufficient Weight to the Appellant’s Mental Condition
The Crown submitted that his Honour should have placed significantly greater weight on the appellant’s personality disorder than he did, notwithstanding that he had rejected the Crown’s submissions that the appellant should be treated as if he was psychotic and sentenced on that basis.
I discern no error in the manner in which the trial judge dealt with this matter. As his Honour noted, Dr Westmore’s evidence was that because the appellant was maintaining his innocence in respect of the offences, diagnosis, analysis and prognosis was speculative. At best, his Honour could only act upon the evidence he had, which is relevantly set out in his remarks on sentence. In particular, it is clear that given the constraints upon Dr Westmore’s ability to give an opinion, to which his Honour refers, what his Honour could and should have taken into account was that the appellant’s prognosis was guarded, but that he had a personality disorder of some sort. In my opinion, his Honour gave the weight to this material as was appropriate.
Error In Imposing Concurrent Sentences
The Crown submitted that this was not an appropriate case in which to impose concurrent sentences. In particular, Crown counsel pointed out that the offences committed on Ms Tonkin and Ms Spillane were themselves particularly brutal, each victim being subjected to severe violence.
Again, I do not consider that his Honour erred. His Honour acknowledged that the offences committed against Ms Tonkin and Ms Spillane “tend, in the nature of things, to be overshadowed by the brutal killing of Ms Lewis. Those other offences were, however, by no means trivial examples of their respective categories of crime”. His Honour later referred specifically to the principle of totality. I see no error in the circumstances in his Honour having made the sentences concurrent.
Objective Seriousness of the Offences
Sentence on the Murder Offence Manifestly Inadequate
Although argued as separate grounds of appeal, the third and fourth grounds are interrelated.
The Crown argued that that his Honour should have taken into account the attacks on Ms Tonkin and Ms Spillane in assessing the objective seriousness of the murder of Ms Lewis. His Honour did, however, pay particular attention to the objective seriousness of the offence. He said “[s]he was done to death in the most cruel and wicked fashion. Her murder was, in purely objective terms, an appalling crime, calling for uncompromising denunciation and meriting severe punishment”. His Honour in considering what sentence should be imposed, gave consideration to whether this was a case appropriate for the imposition of an indeterminate sentence. His Honour decided against that course. However, the fact that he reasoned as to whether it was appropriate is itself an indication of the seriousness with which his Honour viewed the offence. Moreover, care has to be taken when sentencing in a case such as this when sentencing in respect of two distinct categories of offences and two separate circumstances, notwithstanding the proximity of the occurrence of the offences and the violence associated with both.
Notwithstanding that his Honour did refer to the matters which demonstrated the objective seriousness of the offences on Ms Tonkin and Ms Spillane, I have reached the conclusion that the sentence in respect of the murder count does not reflect the objective seriousness of the offences in totality. Murder carries a maximum sentence of penal servitude for life: s 19A Crimes Act 1900 (NSW). It has always been understood as the most serious category of crime, albeit with the commission of any particular offence of murder there are features which are more aggravating than others so as to warrant the differentiating of penalties imposed.
In this case, the murder appears to be random and motiveless. As his Honour remarked it was “appalling”. It was done intentionally, as was demonstrated that death was caused by ligature strangulation. There were no factors of contrition or remorse which were required to be taken into account. There was evidence that the appellant was under the influence of drugs and alcohol at the time of commission of the offence. And it was committed almost immediately after the appellant had committed two other offences of extreme violence.
It is well recognised that appealable error is not demonstrated merely by the appellate court being of the opinion that if sentencing itself a more severe sentence would have been imposed. However, in this case, notwithstanding that his Honour clearly considered the various criteria relevant to sentence, I am of the opinion that the sentence was manifestly inadequate. This was a motiveless and brutal murder, involving not only strangulation but severe battering prior to death, and committed at almost the same time as two other violent offences. Given these matters, I consider that the sentence was manifestly inadequate.
Paying due regard to the principles of totality and double jeopardy, I consider that the appellant should be sentenced to a period of imprisonment of 24 years, with a non parole period of 18 years. The sentence is to commence from 3 March 1997. The earliest date on which the appellate is due for release is 2 March 2015: s 48(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW).
I would not interfere with the sentences imposed on the second and third count.
Accordingly, I propose the following orders:
(i) Appeal of Jay William Short dismissed.
(ii) Crown appeal against sentence allowed.
(iii) Sentence imposed in respect of the count of murder quashed.
(iv) In lieu thereof, Jay William Short is sentenced to imprisonment for 24 years, with a non-parole period of 18 years. The sentence is to commence from 3 March 1997. The earliest date on which he is due for release is 2 March 2015.
(v) The sentences in respect of counts 2 and 3 in the indictment are confirmed.
GROVE J: I agree with Beazley JA.
KIRBY J: I have had the advantage of reading the judgment of Beazley JA in draft form. I agree with the order proposed, and her Honour’s reasons.
I would only add that, in my view, it was desirable that his Honour add two comments immediately after he posed what he termed “the cardinal question”, namely: “Do you believe him?” (referring to the accused). The first comment was a reminder of the standard of proof. The issue was whether the accused’s account might be true. If it might be true, there must be a reasonable doubt. The jury should acquit. The second was a reminder that a rejection of the accused’s version did not necessarily mean that the prosecution must succeed. The accused’s version, if rejected, should be put to one side. The question would remain: “Has the Crown proved the accused’s guilt beyond reasonable doubt?”.
Having said that, I believe, nonetheless, that the summing-up, taken as a whole, carried that message.

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LAST UPDATED: 07/11/2000