Shepherd v R - [2011] NSWCCA 245

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Shepherd v R [2011] NSWCCA 245
Hearing dates: 13 May 2011
Decision date: 17 November 2011
Before: Tobias AJA, Johnson, Hall JJ at [1]
Decision:
Extend time for the filing of a Notice of Application for Leave to Appeal up to and including 3 December 2010.
To the extent necessary, grant leave to the appellant pursuant to Rule 4 of the Criminal Appeal Rules 1952 to argue Ground of Appeal 2.
Appeal dismissed.

Catchwords: CRIMINAL LAW - conviction appeal - appellant convicted of murder of his partner - conversation between appellant and his brother - brother's first version of conversation asserted that appellant said "How can they [the children] love me? I killed their mother" - brother later asserts first version was incorrect and that the appellant said "How can they love me if I killed their mother" - Crown given leave to cross-examine brother under s.38 Evidence Act 1995 - Crown relied on first version as admission of guilt - trial Judge directs jury that first version capable of constituting admission - contended on appeal that error in accordance with Lee v The Queen [1998] HCA 60; 195 CLR 94 - point not taken at trial - whether leave under Rule 4 should be granted - Crown concedes that error occurred at trial - whether proviso applied - Crown case involving circumstantial evidence and direct evidence - by reference to admissible evidence used permissibly, Court satisfied beyond reasonable doubt of guilt of appellant - appeal dismissed
Legislation Cited: Criminal Appeal Act 1912
Criminal Appeal Rules 1952
Evidence Act 1995
Cases Cited: R v Shepherd [2006] NSWSC 799
Lee v The Queen [1998] HCA 60; 195 CLR 94
Vickers v R [2006] NSWCCA 60; 160 A Crim R 195
Klein v R [2007] NSWCCA 206; 172 A Crim R 290
R v FDP [2008] NSWCCA 317; 74 NSWLR 645
R v Abusafiah (1991) 24 NSWLR 531
R v Wilson [2005] NSWCCA 20; 62 NSWLR 346
R v AA and Ors (No.1) [2009] NSWSC 1414
Weiss v The Queen [2005] HCA 81; 224 CLR 300
DJS v R [2010] NSWCCA 200
RWB v R [2010] NSWCCA 147; 202 A Crim R 209
Kessing v R [2008] NSWCCA 310; 73 NSWLR 22
Cesan v The Queen [2008] HCA 52; 236 CLR 358
AK v The State of WA [2008] HCA 8; 232 CLR 438
Gassy v The Queen [2008] HCA 18; 236 CLR 293
Swansson v R [2007] NSWCCA 67; 69 NSWLR 406
Aslett v R [2006] NSWCCA 49
Cornwell v R [2006] NSWCCA 116; 160 A Crim R 243
Taleb v R [2006] NSWCCA 119
Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233
Fox v Percy [2003] HCA 22; 214 CLR 118
The Queen v Hillier [2007] HCA 13; 228 CLR 618
Doja v R [2009] NSWCCA 303; 198 A Crim R 349
De Gruchy v The Queen [2002] HCA 33; 211 CLR 85
R v Vjestica [2008] VSCA 47; 182 A Crim R 350
Shepherd v The Queen [1990] HCA 56; 170 CLR 573
Edwards v The Queen [1993] HCA 63; 178 CLR 193
R v Ciantar [2006] VSCA 263; 16 VR 26
R v Rich (Ruling No 11) [2009] VSC 11
Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521
Texts Cited: ---
Category: Principal judgment
Parties: Glenn Kenneth Shepherd (Appellant)
Regina (Respondent)
Representation: Mr H Dhanji SC (Appellant)
Mr P Ingram SC (Respondent)
Justin Lewis & Co (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2004/4634
Publication restriction: ---
Decision under appeal

Citation:

R v Shepherd [2006] NSWSC 799

Date of Decision:

2006-08-11 00:00:00

Before:

Hoeben J

File Number(s):

2004/2986

Judgment

THE COURT : On 26 April 2006, Glenn Kenneth Shepherd was arraigned in the Supreme Court at Dubbo on an indictment containing one count alleging that on 21 November 2003 at Cobar in the State of New South Wales he did murder Gabrielle Best (the deceased).

The appellant pleaded not guilty to the charge. The trial commenced before Hoeben J and a jury of 12 on 26 April 2006. After a hearing lasting 10 days, on 10 May 2006 the jury found the appellant guilty as charged. On 11 August 2006 the trial judge sentenced the appellant to a total term of imprisonment of 20 years consisting of a non-parole period of 15 years commencing on 23 November 2003 and expiring on 22 November 2018, with a balance of term of five years to commence on 23 November 2018 and to expire on 22 November 2023.

On 2 June 2006, a notice of intention to appeal was filed on behalf of the appellant. The Registrar granted extensions to that notice which expired on various dates, the last being 9 July 2007. On 3 December 2010, a notice of application for leave to appeal was filed which contained two grounds of appeal. On 16 December 2010, a notice of application for extension of time for the filing of that notice was itself filed, supported by an affidavit of the appellant's solicitor sworn on 3 December 2010 seeking to explain the delay over a period in excess of four years in prosecuting the appeal.

Although the Crown drew attention to some unsatisfactory aspects of the solicitor's explanation for the delay, it did not oppose the granting of an extension of time given the grounds of appeal and the Crown's approach to those grounds. In these circumstances, the Court would grant the appellant an extension of time up to and including 3 December 2010 for the filing of his notice of application for leave to appeal.

The appeal is confined to conviction. No challenge is made with respect to sentence.

The Evidence at Trial

The appellant expressly accepted, and the Crown did not contend to the contrary, that the background evidence was appropriately summarised by the trial judge in his remarks on sentence ( R v Shepherd [2006] NSWSC 799) in the following terms:

"4 The offender was born on 26 April 1971 and the deceased, Gabrielle Best, was born on 2 April 1965. Both grew up in Cobar New South Wales. The offender had previously been married and as a result is the father of two girls born in 1994 and 1996. They live with their mother in Sydney. The deceased was the mother of two boys, Gerard (Jed) born 11 December 1990 and Samuel born 1996. In 1999 the deceased and the offender formed a relationship. At that time the deceased lived at 18 Harcourt Street, Cobar. The offender had his own place. After a short period of time the offender moved into 18 Harcourt Street with the deceased. In early 2001 the family relocated to Sydney where they lived at Kemps Creek. In April 2001 a son, Jean Paul, was born. In October/November 2002 the family moved to Pacific Street in Toowoon Bay on the Central Coast. The youngest child, Sebastian, was born in November 2002.

5 Whereas the offender had been in steady employment in Cobar he found obtaining and holding steady employment in Sydney to be difficult. He worked as a subcontractor unloading shipping containers for about 18 months. He also worked as a builder's labourer for six months and sold Foxtel on a door-to-door basis for six months. Apart from some casual labouring work he appears to have been unemployed for periods while the family was living on the Central Coast.

6 The family experienced quite serious financial problems while living on the Central Coast. This placed the relationship under strain. At one time there appears to have been a fairly violent argument where there was some pushing and shoving between the offender and the deceased. There were frequent loud arguments during 2003, usually about money matters.

7 There was evidence of conversations between the deceased and friends who visited her at Toowoon Bay during 2003. The deceased said that the offender would not let her work. She said that during an argument when she confronted the offender about spending money she had saved for an air conditioner he responded that she would never have enough money to leave him. The deceased said that unless things improved, she would leave the offender by Christmas (2003), although there is no evidence that she ever communicated this intention to the offender.

8 There was also evidence that apart from the financial problems, the deceased indicated that she was happy and that she and the offender had a 'zing' thing between them.

9 The financial problems became so great that the only option was for the deceased and the offender to move back to Cobar and live in the deceased's house at 18 Harcourt Street. To do this they borrowed money from the deceased's brother, John Best. They also borrowed money to buy air conditioners for the house. The offender's brother, Scott Shepherd, helped them make the move back to Cobar. The family arrived in Cobar on Sunday, 16 November 2003.

10 There was evidence that the deceased was very happy to be back in Cobar. After their arrival some tensions were observed between the deceased and the offender by the deceased's brother, Michael Best. There was a suggestion that the deceased and the offender were sleeping separately. Friction was observed between the offender and the deceased when the child, Samuel, found some money which had been hidden by the deceased and handed it to the offender. There was also friction over the offender dragging a cupboard across the floor in the house and damaging the floor when doing so.

11 On Thursday, 20 November 2003 the deceased applied for a job at the RSL. The offender also made inquiries concerning a job on that day. The offender and the deceased decided to go to the Occidental Hotel in Cobar on that Thursday night. The offender went to the hotel first while the deceased put the four boys to bed. By about 9pm they were both at the hotel.

12 The evidence concerning the behaviour of the offender and the deceased at the hotel was all one way. Both seemed to be in high spirits and told people that they were happy to be back in Cobar. There was evidence of displays of affection between them. Both were drinking beer. The offender was described by some witnesses as being very drunk. One witness said she had never seen him quite so drunk before.

13 The deceased and the offender were last seen at 2am, after having left the hotel. They spoke to people in the street as they left the hotel and then crossed the road where they were seen standing near the RSL Club. There was some good-natured horseplay observed between the offender and the deceased."

There was evidence from Mr Andre Wegner that he had heard male and female voices shouting and some banging. However, he could not say whether the voices came from the deceased's house or from a park (which was not unlikely as hotel patrons tended to leave the hotel and walk through the park). Reference to his evidence will be made in a little more detail later in these reasons.

The critical events of the morning of 21 November 2003 and the days following were also summarised by the trial judge in his remarks on sentence in the following terms which, again, were not in contest for the purposes of the appeal:

"21 Just before 8am on 21 November 2003 Jed Best, then aged 12, went to the back of 18 Harcourt Street to go to the toilet. He found the deceased lying on the floor with pools of blood on the floor and blood all over her. He went inside and woke the offender who lay apparently asleep in their bed. In the house at the time were Jed's brother, Sam, then aged seven and the couple's children, Jean Paul aged two and a half and Sebastian aged one.

22 The offender followed Jed to the back of the house and saw the deceased. Instead of responding to the boy's requests to call an ambulance or go to get Leonie (the deceased's sister who lived nearby), he told Jed to wait while he was trying to think. By this time the other children were moving around and the offender sent Jed with the children to Leonie Patterson's house at 14 Harcourt Street.

23 Shortly afterwards Ms Patterson came to 18 Harcourt Street and entered the front door. The offender appeared and she demanded to see the deceased asking him where she was and what he had done to her. She asked whether there was a need for an ambulance to which the offender responded by shrugging and holding out his hands. He told her to go home to the children and ring the police. The offender turned and walked down the hallway. As he did so Ms Patterson noticed the handle of a knife sticking out the back of his shorts.

24 Ms Patterson contacted the police. The police arrived followed by two ambulances at about 8.20am. Ambulance officers confirmed that the deceased was dead.

25 As the police arrived, the offender left the house and climbed the back fence. He ran barefooted through the yard of a nearby house and through a quarry area at the rear of a council depot. He hid for a day in an old open-cut mine. He cut his wrists and neck with a knife which was subsequently found there.

26 At 5am on Saturday, 22 November 2003 the offender walked to 5 Mitchell Street and entered an empty, unfurnished house where he stayed until 10.20am on Sunday, 23 November. In that house he made a hole in the ceiling and attached a rope with a noose through the hole and the manhole. He wrote a note on a notepad which said 'I have done the worst thing ever'.

27 At 10.25am on Sunday, 23 November he arrived at his mother's house in Elizabeth Crescent just around the corner from Mitchell Street. His mother Pauline and his brother Scott were present. There was some conversation. His mother asked him where he had been and he said 'hiding'. The offender asked if the deceased was dead and told them that he could not even remember leaving the Occidental Hotel. He told his mother and his brother that he and the deceased had been getting on well and he could not recall any argument. The police were called and he was arrested.

28 Scott Shepherd heard the accused say in relation to his children ' How can they love me I killed their mother' . This was included in his first statement. In a subsequent statement he amended this to ' How can they love me if I've killed their mother' . Scott Shepherd's evidence at trial was in accordance with the second statement. He was cross-examined by the Crown pursuant to s38 of the Evidence Act on this issue. Having seen and heard him give that evidence I find that what the offender told Scott Shepherd was that which was recorded in the first statement.

29 The offender did not give evidence at trial or in the sentence proceedings. At trial he relied upon his ERISP which was conducted by the police on 23 November. The offender said he could not remember leaving the hotel and said that he had had a lot to drink. The offender told the police in the ERISP and in a video taped walk-through at 18 Harcourt Street, that he could not believe it when he saw the deceased in the laundry and was trying to think what had happened. He said that he grabbed a knife from the drawer in the kitchen and then spoke to Leonie Patterson at the front door. He looked back in the laundry and freaked out and ran from the scene carrying the knife with the intention of killing himself. He hid at the open-cut mine where within the first few minutes he inflicted some minor cuts with the knife on his neck and wrist. At the house he made a noose as a last option.

30 When asked in the ERISP if he had killed Gabrielle Best he said: 'No I did not'. However, in earlier answers he said that he tried to take his own life because he was scared seeing what was in the laundry and not remembering. He said he had no idea who killed her. When asked whether he had struck her, his reply was: 'Not that I remember, no.' When asked if he killed her he said: 'Not as far as I remember'. When asked about why he had harmed himself he said it was because of the bad thing that had happened and because he didn't know. He said 'What if it was me?'. One specific answer given by the offender in the ERISP (Q.245) was:

'A. Just waking up, not being able to remember what had happened and going out the back and seeing Gabrielle like she was, to drink and black out, it's a pretty awful feeling to wake up with and for that.'

...

32 While in gaol, the offender sent a card to his mother which contained a poem which he had written and which he wished to be read by his children. Included in the poem was the line 'One big night out, what a terrible cost.'

33 The deceased was found to have a blood alcohol reading of .14. The evidence suggests that the deceased had less to drink than the offender and that she was less affected by alcohol than he was when they left the hotel. I am satisfied that the offender was well affected by alcohol at the time when the offence occurred and that his level of affectation was significantly higher than that of the deceased. That is not only consistent with his fragmentary recollection of the night, but also with observations made of him at the hotel before he left and shortly after he left the hotel." (Emphasis added)

The Events Giving Rise to the Appeal

The events giving rise to the appeal are sourced in that part of [28] of the trial judge's summary of the events of the morning of 21 November 2003 which has been emphasised (at [8] above). Scott Shepherd was the brother of the appellant. On 24 November 2003, two days after the murder, Scott Shepherd signed a police statement which set out the terms of a conversation he had had with the appellant the previous day. Paragraph 8 of that statement contained the following:

"While we were sitting at the table, Glenn asked about his kids and I told him, 'They're your kids. They love you.' Glenn said, 'How could they love me? I killed their mother.'"

Reference to this statement attributed to the appellant is referred to in this judgment as "the first representation" .

In a subsequent police statement made on 23 June 2005 Scott Shepherd stated the following in paragraph 5:

"In relation to my statement I would like to make the following alteration. In paragraph 8 on page 2 I discussed a conversation that took place between Glenn, my mother and myself. During this conversation I indicated that Glenn made the comment, 'How could they love me? I killed their mother.' This was a mistake and Glenn actually said, 'How could they love me if I've killed their mother'."

Scott Shepherd gave evidence in committal proceedings which took place on 9 November 2004 and in a previous aborted trial of the appellant before Barr J on 8 July 2005 in terms consistent with the version in his statement of 23 June 2005 and in which he denied that the version contained in his statement of 24 November 2003 was a correct account of the conversation he had had with the appellant.

In opening to the jury in the present trial, the Crown made specific reference to the terms of both versions given by Scott Shepherd of his conversation with the appellant on 23 November 2003. Nothing was said that indicated whether the evidence being referred to was not, or could not, be used as an admission.

There was an earlier trial of the appellant before Barr J and a jury in July 2005. For reasons which are not presently relevant, the jury was discharged before verdict. It appears that, on the application of the Crown, Barr J granted leave under s.38 of the Evidence Act 1995 for the Crown to cross-examine Scott Shepherd in view of his changed account of the words said to have been uttered by the appellant on 23 November 2003.

The Crown made a similar application to Hoeben J on 1 May 2006. Although reference was made to the fact that Barr J had granted leave under s.38 at the earlier trial, it does not appear that any judgment of his Honour on this point was placed before Hoeben J. Nor was any such judgment provided to this Court. Thus we do not know whether any reference was made before Barr J to the decision of the High Court in Lee v The Queen [1998] HCA 60; 195 CLR 94. That decision was not mentioned before Hoeben J. Short submissions were made by the Crown and by trial counsel for the appellant which referred to ss.38 and 192 of the Act without any real elaboration. Defence counsel informed his Honour that he formally opposed the s.38 application and invited his Honour to have regard to s.192 considerations.

It should be observed that the same very experienced criminal trial counsel (now senior counsel) represented the appellant at the trials before Barr J and Hoeben J. Different senior counsel has appeared for the appellant before this Court.

No application was made at the trial for the exclusion of the evidence of the first representation. Nor was any application made that this evidence should not be treated as evidence of the truth of the fact asserted, or that it be subject to a limited use order under s.136 of the Act.

In an interlocutory judgment of 1 May 2006, the trial judge granted leave to the Crown to cross-examine Scott Shepherd pursuant to s.38 of the Act . In [12] of his reasons, his Honour observed that the evidence of the first representation was important as on one view it constituted an admission and that the Crown was entitled to test the apparent change in Scott Shepherd's evidence given his relationship to the appellant. Accordingly, he granted leave to the Crown to cross examine Scott Shepherd on his prior inconsistent statement of 24 November 2003 which contained what was accepted by both parties as an admission of guilt.

It is unnecessary to examine the details of Scott Shepherd's cross- examination with respect to the first representation or to recite the evidence of the police officer who had prepared Scott Shepherd's statement of 24 November 2003 containing that representation. What is presently relevant is that in final address to the jury the Crown explicitly and repeatedly relied on the first representation as an admission of guilt by the appellant to his brother.

At [131] of his summing up, the trial judge informed the jury that the Crown had identified eight circumstances which it said constituted admissions by the appellant of conduct which indicated a consciousness of guilt that he was the person who brought about the death of the deceased. The first of those eight matters was the admission by the appellant to his brother on 23 November 2003. At [132], his Honour referred to the submission of the Crown that that admission, together with a notebook entry in which the appellant is recorded as having said " I have done the worst thing ever ", constituted clear, unequivocal admissions of guilt by the appellant that he in fact was the person who brought about her death.

In final address, trial counsel for the appellant sought to deal with the first representation by suggesting that if the words attributed to the appellant had been used, then they were not a genuine admission of guilt but rather indicative of a temporary acceptance by the appellant that he might have killed the deceased. Nevertheless it was acknowledged by the Crown on the hearing of the present appeal that a substantial part of the Crown's final address to the jury was based on the first representation being a clear and unequivocal admission of guilt, as was the appellant's handwritten note.

The Grounds of Appeal

The following two grounds of appeal were relied upon by the appellant:

"1. The learned trial Judge erred in granting leave to the Crown to cross-examine the witness, Scott Shepherd, in order to adduce evidence of the prior representation of Scott Shepherd that the appellant made a representation to him in the terms 'How can they love me, I killed their mother'.

2. In the alternative to ground 1, the learned trial Judge erred in permitting the Crown to adduce evidence of the prior representation of Scott Shepherd that the appellant made a representation to him in the terms 'How can they love me, I killed their mother', as evidence of the truth of the statement."

Application of Rule 4 of the Criminal Appeal Rules

Submissions were made to this Court for the appellant that Rule 4 of the Criminal Appeal Rules 1952 has no application to the present appeal. Rule 4 provides:

" 4 Exclusion of certain matters as grounds for appeal etc

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal."

The Crown in its written submissions on the appeal contended that as the bases for the objection at trial to the application of the Crown to cross examine Mr Shepherd pursuant to s.38 did not include the basis now relied upon in the appeal, namely, that the evidence could not be admitted having regard to s.60 and the decision of the High Court in Lee , it accordingly followed that Rule 4 applied and that the leave of the Court was required for the appellant to argue Ground of Appeal 2: Vickers v R [2006] NSWCCA 60; 160 A Crim R 195 at 209-210 [78].

On the other hand, the appellant submitted that Rule 4 has no application to the present case as the decision to grant leave to the Crown to cross-examine Mr Shepherd was a decision not as to the admissibility of evidence but as to how evidence could be adduced to which Rule 4 has no application.

In our view, the breadth of Rule 4 is such that the appellant requires the leave of the Court to rely upon Ground of Appeal 2: Vickers at 208-210 [66]-[78]; Klein v R [2007] NSWCCA 206; 172 A Crim R 290 at 298 [27], 301 [45]-[46]. The draftsperson of the grounds of appeal identified, in the first ground, a challenge to the trial judge's decision to grant leave to the Crown under s.38 to cross-examine Scott Shepherd. Rule 4 does not apply to that ground.

However, the Ground of Appeal 2 is based upon a separate premise, including alleged error in permitting the Crown to adduce evidence of the first representation as evidence of the truth of the statement. Objection was not taken at trial to the admission of this evidence; nor was any direction sought confining the use of the evidence. In our view, the appellant requires leave under Rule 4 to rely upon this ground of appeal.

In the circumstances of the present appeal, the Crown does not advance any substantial argument against the grant of leave under Rule 4. However, it remains a matter for the Court as to whether leave ought be granted.

The question whether error in the trial process is demonstrated must be considered in the light of the fact that no application was made to the trial judge (in the form of submissions made to the Court), giving rise to an erroneous decision by his Honour in the course of the trial. What is submitted here is that the Crown Prosecutor, experienced trial defence counsel and the trial judge did not advert to the particular issue now agitated before this Court.

This Court has held that s.137 of the Act does not impose an obligation on a trial judge to reject evidence to which no objection has been taken at trial by defence counsel: R v FDP [2008] NSWCCA 317; 74 NSWLR 645 at 652 [28]-[30]. We consider that this Court should be careful in the assessment of submissions made by reference to provisions of the Act which are said to apply, when no argument to that effect was made to the trial Judge (in particular by experienced counsel).

It is therefore for the appellant to demonstrate that a miscarriage of justice has resulted in order to justify this Court granting leave under Rule 4 to permit Ground of Appeal 2 to be advanced: R v Abusafiah (1991) 24 NSWLR 531 at 536; R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 at 352-353 [20]-[24].

Whether the First Representation was Wrongly Treated as Evidence of the Truth of the Fact it Asserted

As we have indicated, the first representation was admitted into evidence by the trial judge pursuant to a grant of leave to the Crown, over the objection of the appellant, to cross examine Mr Shepherd on the first representation pursuant to s.38 of the Act. That representation, as recorded in Mr Shepherd's police statement of 24 November 2003, was an out of court representation by him that the appellant had made an out of court representation to him. As such the first representation was hearsay evidence. This evidence was governed by s.59 of the Act which was in the following terms:

"(1) Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.

(3) Subsection (1) does not apply to evidence of a representation contained in a certificate or other document given or made under regulations made under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect."

Section 60 provides an exception to s.59 which, at the time of trial, was in the following terms:

"The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation."

The Crown conceded that there was a difficulty in the present case in that although s.60 applied as an exception to the hearsay rule for the purpose of the Crown's cross- examination of Mr Shepherd with respect to his credit, it was not admissible to prove that the representation was true and thus was an admission by the appellant that he had killed the deceased. That concession was contained in the following paragraphs of the Crown written submissions on the appeal:

"28 The previous representation by Scott Shepherd (viz. that the Applicant had said to him, 'How can they love me, I killed their mother') could not be relied on by the Crown to prove the truth of the admission by the Applicant, viz. that he had killed the Deceased.

29 The Crown could not rely upon the previous representation as evidence of the truth of the confession allegedly made to him by the Applicant because sections 59 and 60(1) of the Evidence Act 1995 (NSW) do not (and did not at the time of the trial) operate to permit the previous representation to be lead as evidence of the truth of the admission allegedly made to him by the Applicant. Rather, the evidence of the previous representation was only admissible as a prior inconsistent statement of the witness (Scott Shepherd) and was relevant only to the credibility of that witness: Lee v The Queen [1998] HCA 60; (1998) 195 CLR 594 per Gleeson CJ, Gummow J, Kirby J, Hayne J and Callinan J at [17]-[31], [40]-[41]; Regina v Vickers [2006] NSWCCA 60; (2006) 160 A Crim R 195 per Simpson J at [59]-[63] with whom James J and Hall J [agreed]."

The appellant submitted that the present case was on all fours with the decision in Lee . Relevantly, in that case the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ) said at 601-602 [28]-[30]:

"28 The nature of what Mr Calin said in his statements to the police was such that evidence of those statements was evidence both of representations made by Mr Calin to the police (about what Mr Calin had seen and heard) and of representations made to Mr Calin by the appellant (about what the appellant had done). By virtue of s 59, the evidence was not admissible to prove the existence either of the facts which Mr Calin intended to assert to the police or of the facts which the appellant intended to assert to Mr Calin. Section 60 operated only upon the former representations; it had nothing to say to the representations made by the appellant to Mr Calin. It was only the representations made by Mr Calin to the police that were relevant for a purpose referred to in s 60: the purpose being to prove that Mr Calin had made a prior inconsistent statement and that his credibility was thus affected. The hearsay rule was rendered inapplicable to Mr Calin's representations, but not to the representations allegedly made by the appellant. And, of course, the representations allegedly made by the appellant were not admissible under the confession exceptions to the hearsay rule created by s 81 because the evidence of these confessional statements was not first hand.

29 To put the matter another way, s 60 does not convert evidence of what was said, out of court, into evidence of some fact that the person speaking out of court did not intend to assert. And yet that is what was done here. Evidence by a police officer that Mr Calin had said, out of court, that the appellant had said that he had done a job was treated as evidence that the appellant in fact had done a job - a fact which Mr Calin had never intended to assert. (Of course, it would be different if Mr Calin had said in evidence in court that the appellant had said he had done a job. Then the representation made out of court would be the appellant's, not Mr Calin's.)

30 It follows that evidence that Mr Calin had earlier reported that the appellant had confessed was not evidence of the truth of that confession. It should not have been received at the trial of the appellant, as it was, as evidence establishing that the appellant had committed the offence."

The hearing of the present appeal proceeded upon the basis of a Crown concession that error of the type in Lee had been demonstrated, with the focus of attention moving to the application of the proviso. We will proceed to determine the appeal upon that basis.

However, the impact of Lee must be considered in the context of the facts of this case. The factual scenarios of different cases may lead to different outcomes: R v AA and Ors (No.1) [2009] NSWSC 1414 at [14]-[21].

Here, Scott Shepherd admitted he had made and signed a statement to police. That statement contained the first representation. By the time he came to give evidence at the trials before Barr J and then Hoeben J, Scott Shepherd had made a minor but significant amendment to the first representation by the insertion of the word "if" . He gave evidence before Hoeben J and the jury that the appellant had spoken to him and had made the critical statement, with the insertion of the word "if" .

A possible issue for the jury was whether the appellant spoke the first version (an unequivocal confession) or the slightly different second version (a more equivocal but still damaging statement). This was not a case where the first version was an admission but the second version was incapable of being an admission. Certainly, the first version was a stronger and more damaging admission than the second, but the second version was capable of being adverse to his interest in the outcome of the proceeding: see definition of "admission" in the Dictionary to the Act.

Further, here there is an earlier admission made by the appellant (the suicide note), which was relevant to an assessment of what he had said later to his brother. It may be that the first representation was admissible, at least to an assessment by the jury of the consistency (or otherwise) of the appellant's repeated claim in his ERISP that he could not recall what had happened on the evening in question (a non-hearsay purpose).

However, none of these matters were argued either before Hoeben J, or this Court. The hearing before us proceeded upon the basis of acceptance by the Crown that error had been demonstrated in accordance with Ground of Appeal 2.

The first representation was admitted into evidence and was relied upon by the Crown as an admission by the appellant that he had killed the deceased. Furthermore, it was accepted by the trial judge in his summing up as capable of constituting such an admission, such a direction being accepted by the Crown as being contrary to Lee at 604 [41]. Accordingly, the first representation was tendered to the jury by the Crown as an admission or confession of guilt by the appellant and was treated as capable of constituting such a confession or admission by the trial judge in his summing up.

In these circumstances, the Court should proceed upon the basis that error occurred at trial, albeit in circumstances where the trial judge was not called upon to make a ruling concerning the issues ventilated in this Court. The appellant should have leave under Rule 4 to rely upon Ground of Appeal 2. The Crown conceded that this ground had been made out, so that the Court should turn now to the question of the proviso.

The Proviso to s 6(1) of the Criminal Appeal Act 1912

Relevantly, s.6(1) of the Criminal Appeal Act 1912 provides as follows:

"The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion ... that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice ... provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred ." (Emphasis added)

The Crown has conceded that Scott Shepherd's evidence of an admission by the appellant that he killed the deceased was wrongly admitted and that, given the emphasis that was placed upon the admission by the Crown in final address and not dispelled by the primary judge in his summing up, there was not only a wrong decision on a question of law, being the use to which the first representation could legitimately be put, but also as a consequence there was a miscarriage of justice which, prima facie, justified the allowance of the appeal. However, the Crown submitted that, putting to one side the admission contained in the first representation, the Court should dismiss the appeal upon the ground that the Crown's direct and circumstantial case was so strong that no substantial miscarriage has actually occurred.

The application of the proviso was authoritatively discussed by the High Court in Weiss v The Queen [2005] HCA 81; 224 CLR 300 particularly at 314 [35]-[36] and 315 - 317 [39]-[45]. The approach taken in Weiss has been adopted and applied in a long list of cases in both this Court and the High Court including the following: DJS v R [2010] NSWCCA 200; RWB v R [2010] NSWCCA 147; 202 A Crim R 209; Kessing v R [2008] NSWCCA 310; 73 NSWLR 22; Cesan v The Queen [2008] HCA 52; 236 CLR 358; AK v The State of WA [2008] HCA 8; 232 CLR 438; Gassy v The Queen [2008] HCA 18; 236 CLR 293; Swansson v R [2007] NSWCCA 67; 69 NSWLR 406; Aslett v R [2006] NSWCCA 49; 168 A Crim R 263; Vickers at 215 [107]-[108]; Cornwell v R [2006] NSWCCA 116; 160 A Crim R 243; Taleb v R [2006] NSWCCA 119; Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233.

The statutory task of this Court in applying the proviso was articulated by the High Court in Weiss (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) in the following terms at 316-317 [41]-[42]:

"41 That task is to be undertaken in the same way an appellate court decides whether 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. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

42 It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.

43 There are, however, some matters to which particular attention should be drawn. First, the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out'. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt.

44 Next, the permissive language of the proviso ('the Court ... may , notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal ... ') is important. So, too, is the way in which the condition for the exercise of that power is expressed ('if it considers that no substantial miscarriage of justice has actually occurred'). No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty.

45 Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant's guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind."

The "natural limitations" referred to by the High Court at 316 [41] of Weiss is a reference to the following passage in the judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at 125-126 [23]:

"The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole."

In the present case, there is relatively little room for the " natural limitations " to which reference is made above as the Crown's direct and circumstantial case did not, to any relevant degree, depend upon the credibility of any relevant witness. Nevertheless, there is still the " feeling " of the case which an appellate court, reading the transcript, cannot always fully share with those present at the trial.

In Weiss at 317 [43] the High Court drew attention to the fact that the appellate court's task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. In the present case, both the appellant and the Crown accepted that the fact that the jury returned a guilty verdict could play no part in this Court's assessment of the strength of the Crown case based upon the admissible evidence. That it is appropriate in some cases to ignore the guilty verdict of the jury was recognised by the High Court in Cesan at 395 [128] - [129] where Hayne, Crennan and Keifel JJ made the following observations:

"128 In Weiss , the court pointed out that, in considering the application of the proviso, an appellate court's task 'must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict'. But in undertaking that task an appellate court must be conscious of the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record of the trial.

129 In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence. In the present cases, however, the relevant hypothesis is that the jury did not pay attention to all of the evidence led at trial. In particular, the jury was distracted when one of the two accused persons was giving his evidence. In those circumstances, it is not possible, in these cases, to place any weight upon the fact that the jury returned its verdicts of guilty."

In the present case, it was accepted, and in our view properly so, that the jury must have at least been influenced by the evidence of the first representation which was wrongly admitted. It certainly could not be said that it had no or minimal significance in determining the verdict that the jury returned. Given the reliance placed upon the admission by the Crown in its final address, the contrary is, in our opinion, the case. In those circumstances, we agree with the appellant and the Crown that no weight can be placed upon the fact that the jury returned a verdict of guilty.

It is therefore necessary to consider the admissible evidence relied upon by the Crown in order to determine whether that evidence persuades us of the appellant's guilt of the charge of murder beyond reasonable doubt. To an assessment of that evidence we now turn.

The Crown's Case on Appeal

The Crown case relied upon circumstantial evidence and direct evidence, including evidence of admissions by words and conduct. Regard is required to be had to the totality of the evidence before the jury. This involves an assessment of the direct evidence of witnesses and inferences to be drawn from a combination of events. In exercising this function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48].

The Crown accepted that it bore the onus of establishing to this Court's satisfaction that the admissible evidence proved at the trial was sufficient to persuade us beyond reasonable doubt that the appellant murdered the deceased: Cesan at 391 [112], 393 [122]; Doja v R [2009] NSWCCA 303; 198 A Crim R 349 at 372 [133]. In its written submissions on the appeal, the Crown relied on the following evidence which it described as " very potent ":

"a. evidence given by friends and relatives that the relationship between the Applicant and the Deceased had for some time before the offence been punctuated by interpersonal disharmony between the couple precipitated by financial stresses and the apparently heavy reliance of the Applicant upon the financial and other contributions of the Deceased, that the Deceased had professed a desire to separate from the Applicant and had indicated her intention to do so if their circumstances did not improve by the Christmas of 2003;

b. evidence of the child 'Jed' of the tumultuous nature of the relationship including that the Applicant had hit the Deceased during an argument at Toowoon Bay at the beginning of 2003;

c. evidence that the Applicant had been with the Deceased when they both left the Occidental Hotel and he was roused from his bed by the child 'Jed' who had just discovered the body of the Deceased;

d. evidence of Mr Wegner (a neighbour two properties west along the street from the residence of the Applicant and the Deceased) that he had heard a loud argument between a man and a woman with sounds of banging and crashing in the early hours of a morning during November 2003 which he believes was the morning of the death of the Deceased, the sounds appeared to be coming from the East but he could not tell if it was from a house or the nearby park;

e. the evidence of 'Jed' that he saw that the Applicant had blood on his finger and a stain that looked like rubbed blood and was about the size of a 20 cent piece on his shirt when he roused the Applicant from his bed and they went together out to the laundry where the body of the Deceased was situated;

f. the evidence that there was the DNA of the Deceased in the blood stains on the T-shirt being worn by the Applicant at the time of his arrest and which he had also been wearing when he left his bedroom and accompanied the child 'Jed' to the laundry'

g. evidence that the Deceased had died as a consequence of head injuries that indicated she had been struck with implements such as a hammer and/or a clothes iron and there was a claw-hammer and a clothes iron in the laundry and both had blood on them;

h. evidence that the blood on the claw hammer had the DNA profile of the Deceased on the claw and the DNA profiles of both the Deceased and the Applicant on the handle, the body of the iron had the DNA profile of the Deceased on it and the handle of the iron had the DNA profiles of both the Deceased and the Applicant on it;

i. the absence of the DNA profile of any other person on the hammer and or the iron;

j. the evidence of blood splattering low (near to the floor) on the toilet and adjacent of the laundry wall which was consistent with the Deceased having been struck the fatal blows as she lay on the floor in that area of the laundry;

k. the evidence that a pair of shorts, underpants and sandals consistent with the sizes worn by the Applicant were found together in the courtyard outside the laundry in a position consistent with them having been removed by the wearer at the same time and:

1. the shorts and underpants had the DNA of the Applicant on them;

2. the shorts had a keycard in the name of the Deceased and the keys to the car of the Deceased in the pockets;

3. the shorts were stained with blood that had the DNA profile of the Deceased;

4. the location of the bloodstains on those shorts was consistent with the shorts having been worn by a person present when the bloodstains occurred to the wall and toilet which bloodstains were themselves consistent with having been left during the fatal attack upon the Deceased as she lay upon the floor in that area of the laundry;

l. evidence of the conduct of the Applicant after the discovery of the body of the Deceased including:

1. his procrastination in relation to whether to have the child 'Jed' call the Police or Ambulance and his later direction to 'Jed' to take the children to the aunt's home nearby;

2. the nature and terms of his response to the sister of the Deceased when she came to the house, directing her to return to the children and call the Police;

3. his possession of the knife when the sister of the Deceased saw him - indicative of an intention to harm himself;

4. his flight to and hiding at the mine/quarry;

5. his use of the knife to cut his neck and wrist while at the mine/quarry;

6. his further flight to and hiding at 5 Mitchell Street;

7. his preparation of a noose at 5 Mitchell Street to hang himself;

m. evidence that the Applicant had written on the notepad/notebook found at 5 Mitchell Street on 23 November 2003 " I have done the worst thing ever " (emphasis added);

n. evidence that the Applicant had sent a poem entitled 'Gabrielle' (being the name of the Deceased) in a card shortly before Christmas 2003 addressed to the mother of the Deceased and which included the lines, 'One big night out, what a terrible cost';

o. the remark by the Applicant at Q + A 333 of the ERISP - 'I just pray to God it wasn't me'."

No Substantial Factual Controversy at Trial

Leaving to one side for the moment the evidence given by Scott Shepherd (discussed below), as earlier indicated, there was no dispute of any significance in relation to factual matters that depended upon the credibility of witnesses.

In other words, this was not a case where important factual matters had to be decided based on conflicting evidence given at the trial.

As also indicated above, in this case the "natural limitations" that may exist in the case of an appellate court proceeding wholly or substantially on the record are not such as to require this Court, as an appellate court, to conclude that it cannot reach the necessary degree of satisfaction. In those circumstances, this is an appeal which requires us to make our own independent assessment of the evidence and determine whether it has been proved beyond reasonable double that the appellant is guilty of the murder of the deceased.

Given the nature of the error in the admission of the evidence of the first statement made by Scott Shepherd, as earlier indicated it is not possible to place any weight upon the fact that the jury returned a verdict of guilty. Accordingly, it follows that the question as to whether the proviso should or should not be applied rests wholly upon the evidence led at trial and this Court's own independent assessment of it, which assessment is to be made without any significance being attached to the jury's verdict.

An Assessment of the Evidence

Considered below are aspects of the evidence which, in our view, are of particular significance to the discharge of this Court's function in the present appeal.

The appellant and Ms Best had been in a relationship for a number of years. The evidence demonstrated a number of stressors (including financial stressors) which had operated upon the relationship over time. There had been tensions in the relationship, with evidence of the use of force by the appellant against Ms Best on an earlier occasion. There had been some volatility in the relationship, marked by concerns expressed by Ms Best concerning the appellant's use of funds. However, the evidence did not disclose an abusive relationship marked by recurring acts of domestic violence.

The couple and their family had returned to Cobar on 16 November 2003, a situation which pleased Ms Best. There is evidence of Ms Best informing a friend earlier in 2003 that, unless things improved, she may leave the appellant at the end of the year. There is no evidence that Ms Best communicated this view to the appellant. Of course, there is no account in evidence as to what may have been said between the appellant and Ms Best after they left the Occidental Hotel in Cobar at about 2.00 am on 21 November 2003.

There is no obligation upon the Crown to prove motive, which is not an element of the crime of murder. However, the presence or absence of motive, or the nature of any motive, may bear upon a determination as to whether the Crown has proved beyond reasonable doubt that the appellant killed Ms Best: De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 at 92-93 [28]-[32]; R v Vjestica [2008] VSCA 47; 182 A Crim R 350 at 382-383 [112]-[115].

The evidence reveals that the appellant and Ms Best left the Occidental Hotel at about 2.00 am, and that Ms Best was found lying on the laundry floor at about 8.00 am on 21 November 2003. Staying in the house at 18 Harcourt Street Cobar that evening were the appellant, Ms Best and at least two children (including the child, Jed). There is evidence referred to at [7] above from Mr Andre Wegner that he heard raised voices of a man and a woman followed by some "banging and crashing" . However, Mr Wegner did not make a statement containing this account until 2005, and there was scope for some uncertainty as to the precise location from which these sounds emanated. Nevertheless, Mr Wegner's evidence formed part of the body of evidence which the Court is required to consider.

Pertinent to the present enquiry is consideration of evidence which may point to the presence of a third party, such as an intruder or burglar, who may have carried out the fatal attack upon Ms Best. Mr William Cahill lived in Linsley Street, Cobar which intersects with Harcourt Street. Mr Cahill said that he had had three break-ins at his house in the preceding 12 months. Mr Cahill had two dogs which were barking on the morning of 21 November 2003 when, as will be seen, the appellant came through his yard on the way to a disused coalmine. Mr Cahill was asked if he heard dogs barking the previous night, and he replied "Not that I took any notice of, no" . Mr Cahill's evidence points to break-ins in the area prior to 21 November 2003. However, the absence of evidence of barking dogs during the relevant night does not assist a defence hypothesis that an intruder may have entered 18 Harcourt Street and inflicted the fatal injuries. On the other hand, the dogs apparently only barked when an intruder entered the Cahill property. If such a person killed Ms Best, it does not follow that he would have left the area via Mr Cahill's land.

When Jed roused the appellant at about 8.00 am on 21 November 2003, and called him to the laundry area where Ms Best was lying, the appellant commenced a course of conduct which progressively and cumulatively operated in a most incriminating manner towards him. In approaching the evidence in this respect, it is necessary to keep in mind that different persons may react in different ways to difficult circumstances. What follows should not be taken as the application of a type of reasonable person test as a means of measuring the responses of the appellant. That said, it is necessary to have regard to the evidence and to utilise commonsense in assessing what followed.

The response of Jed, urging a call to the police or the ambulance authorities, was met by the appellant with a type of delayed response. If the appellant had not killed Ms Best, then he was being confronted with a shocking and devastating scenario in which his partner had been attacked by another person. The appellant's response was to delay the calling of the authorities.

Thereafter, when the police were called, the appellant did not remain on the premises. It was the appellant's account that, upon the arrival of other persons, questions were asked of him as to whether he had attacked Ms Best. According to his ERISP answers, the appellant became frightened and left the premises, heading towards a disused coalmine. He had a kitchen knife in his possession.

It is reasonable to assess the evidence up to this point bearing in mind the appellant's later denial that he had killed Ms Best, but could not remember what had happened after their return from the Occidental Hotel at 2.00 am that day. The claimed lack of recollection of the appellant was said to flow from his state of intoxication. There is no evidence that the appellant suffered from any medical or psychiatric condition which impeded his memory.

The C onsciousness of Guilt Evidence

Before examining the appellant's post-offence conduct in detail, it is as well to set out the principles that determine the basis for the admissibility of evidence of such conduct and for determining whether such conduct demonstrates a consciousness of the criminal conduct in question amounting to an implied admission of guilt.

Lies and post-conduct are a species of circumstantial evidence. It has been held that an inference of guilt may be drawn from the concatenation of circumstances including post-offence conduct. The process of reasoning from "strands in a cable" of circumstantial evidence discussed in Shepherd v The Queen [1990] HCA 56; 170 CLR 573 was applied in Edwards v The Queen [1993] HCA 63; 178 CLR 193. Whether a statement, proved to be false, is capable of demonstrating a consciousness of guilt of relevant wrongful conduct amounting to an implied admission of guilt will depend upon "the terms of the statement, the circumstances in which it is made, the nature of the offence charged and other evidence in the case" : R v Rich (Ruling No. 11) [2009] VSC 11 (Lasry J) at [40].

As with other forms of circumstantial evidence of guilt, a tribunal of fact may accept the evidence of lies and other post-offence conduct and act upon it without being satisfied beyond reasonable doubt that the evidence establishes guilt (that is to say, without being satisfied that there is no other explanation for the lies and post-offence conduct which was reasonably open on the facts).

In Edwards at 210 Deane, Dawson and Gaudron JJ, in this respect, stated:

"The jury do not have to conclude that the accused is guilty beyond reasonable doubt in order to accept that a lie told by him [or post-offence conduct] exhibits a consciousness of guilt. One may accept that evidence without applying any particular standard of proof and conclude that, when they consider it together with the other evidence, the accused is or is not guilty beyond reasonable doubt."

R v Ciantar [2006] VSCA 263; 16 VR 26 is another case which illustrates how a lie, allegedly told from a consciousness of guilt, when constituting "a strand in the cable" , is a matter to be considered with all of the other accumulation of evidence.

The "controls" which "customarily apply to the use of evidence of consciousness of guilt" were described in Edwards in the following terms ( Ciantar at 48-49 [70]-[72]):

"Post-offence conduct is not to be left to the jury as evidence of consciousness of guilt unless it has first been precisely identified together with the circumstances and events that are said to indicate that by engaging in the conduct, the accused demonstrated a consciousness of having committed the offence which is charged.

The judge must also be satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified, is capable of demonstrating such a consciousness of guilt.

So, if an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating such a consciousness of guilt, the post-offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself is equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence."

Accordingly, in determining the application of the proviso in the circumstances of the present case, it is necessary to bear in mind the principles that govern the admissibility of evidence of post-offence conduct and the application of those principles to the evidence in this case.

Whether or not a particular aspect of the appellant's post-offence conduct can be considered as capable of demonstrating a consciousness of relevant wrongful conduct amounting to an implied admission of guilt will depend upon:

(1) The nature of the conduct;

(2) The circumstances in which the conduct occurred;

(3) The nature of the offence charged;

(4) Other evidence in the case which would include any explanation provided by the appellant during the course of his ERISP and the subsequent walk-around the crime scene: R v Rich (Ruling No 11) [2009] VSC 11 at [42] per Lasry J.

The Evidence as to the Appellant ' s Immediate Reactions to the Death of the Deceased

After the appellant went to the laundry soon after being woken by Jed, the latter said to the appellant "ring the police" . The offender responded "No, not yet" .

After the appellant went into the laundry, Jed said something about ringing an ambulance and the appellant said "Not yet, I'm trying to think" . He went back into the laundry. Jed then said "Shall I go and get Leonie?" . The appellant replied to the effect "Not yet, I am trying to think" .

After the appellant said to Jed, "Wait, I'm just thinking" followed by Jed asking "Can I go get Leonie?" , Jed said that the appellant said "Not just yet" . Jed said that a couple of minutes later he said to the appellant "Can I go to Leonie?" . The appellant, Jed said, then relied "Okay" . The appellant added, "Take the kids" .

Jed's recollection was it was that about 8 to 10 minutes after finding the deceased before he went up to Leonie Patterson's house. Soon after the appellant fled the crime scene.

Following Leonie Patterson's call to Cobar Police Station, police arrived at about 8.05 am. They walked down the driveway of 18 Harcourt Street, Cobar to the rear of the house. The neighbour, William Cahill, was in the yard of the premises at the rear of 18 Harcourt Street when he said to Constable Waters "He has just jumped over the fence and ran through my place as you boys have arrived" .

Mr Cahill said that this had occurred at about 8.15 am on 21 November 2003 when he heard his dogs starting to bark and saw somebody walking across his back lawn.

The Appellant Pockets a Knife Intent on Self-Inflicted Harm - Why?

During the course of the walk-around with police on 23 November 2003, the appellant said that, on hearing Leonie Patterson calling out, he took a knife and put it in the back pocket of his shorts. However, in his ERISP answers it is noted that he took the knife before any challenging questions were raised by Ms Patterson.

In the ERISP, he was questioned about the knife as follows:

"Q76. I've been told that when Leonie got there, when you turned round to walk back towards the rear of the house, you had a knife down the back of your pants. Do you remember that? A. I do.

Q77. Can you tell me about that? A. Like, I said, I couldn't remember what had happened and I just wanted, I just wanted to, it's the most disgusting thing I've ever seen and I was just gunna take my own life.

Q78. Can you tell me what point, at what time you got the knife? A. It was after I'd sent the boys up to Leonie's place .

Q79. And where did you get the knife from? A. It was in the kitchen.

Q80. Can you tell me where the knife is now? A. Yes, I can. It's at the open-cut.

...

Q83. Did you try and harm yourself with the knife? A. I did. It wasn't particularly sharp but.

Q84. And where did you try and harm yourself on your body? A. Down the neck here and across there." (Emphasis added)

In the ERISP, the appellant was asked as to why he tried to take his life (Q 205-206):

"Q205. You said earlier that the cuts on your neck are from the knife that Detective Bryant just mentioned? A. Yeah.

Q206. Can you tell me why you tried to take your life? A. Just scared I guess. Not having, having that window of not remembering and seeing what was in the laundry. I mean, I couldn't imagine --" (Emphasis added)

Later in the ERISP, he was asked (Q 248-254):

"Q248. Why did you try and take your life? What was the reason for taking the knife from the house? A. I was scared that it, I just didn't know what had happened .

Q249. Alright. You're saying you didn't know what happened, well, why did you take the knife from the house? What did you intend to do with the knife? A. Intended to harm myself .

Q250. And what was the reason for harming yourself? A. Just a bad thing that happened and I just didn't know.

Q251. You didn't know what? A. What happened.

Q252. Alright. So you didn't, you say you didn't know what happened? But why would you think of hurting yourself because you didn't know what happened? A. What if it was me?

Q253. What if it was you that did what, though? A. Did that to Gabrielle .

Q254. So, what do you mean by that? A. Just waking up, not being able to remember what had happened and going out the back and seeing Gabrielle like she was, to drink and black out, it's a pretty awful feeling to wake up with and for that -

..." (Emphasis added)

In the ERISP at Q 300-301, he was asked:

"Q300. Was it at Gorilla Rock where you tried to harm yourself? A. The first time, yeah.

Q301. And how long after you left Harcourt Street to where you tried to harm yourself with the knife, what time period do you think had elapsed? A. Three or 4 minutes."

Later in the ERISP at Q 316-318, the appellant was asked:

"Q316. And is it correct that you say in relation to trying to harm yourself, that you did that because you thought you may have killed Gabrielle? A. I didn't know.

Q317. You didn't know. But I think you said you thought you may had [sic] done it, which is why you tried to harm yourself when I asked you why did you try to do it, why did you try to hurt yourself, what were you thinking? A. Mm.

Q318. Is that right? A. I guess so, yeah ." (Emphasis added)

In relation to the above evidence, the question naturally arising is as to why, so soon after the appellant saw the deceased's body in the laundry, he would take a knife with the apparent intention of using it to kill himself?

It is sufficient at this point to observe that the appellant's taking of the knife and his later self-infliction of cuts to his body may support an inference that the appellant was acting out of a consciousness of guilt. Alternatively, at least it may be said to impliedly suggest a state of mind in the appellant which entertained the possibility that he had, in fact, been the perpetrator of the attack on the deceased. The question of what could possibly have created such a line of thought in him is discussed below.

The Appellant's Response to Leonie Patterson

Ms Patterson stated that when she attended at 18 Harcourt Street on 24 November 2003, she said to the appellant, "Where's Gabby?" . He said "Just go back with the kids" . She said that she then said "Where's Gabby. I want to see Gabby" and the appellant was just standing there looking at her.

When asked as to whether the appellant did anything or made any gesture, Ms Patterson's evidence was:

"He said, 'Go back to the kids'. Again I said, 'What have you done? Have you hurt her?' and he just lifted his hands out like that.

Q. You have indicated you have your elbows about your waist and your forearms bent upward with your palms out, is that right? A. Yes, yes."

Ms Patterson said that at the time he was wearing a "grey, greenie coloured, darky t-shirt and shorts" . The T-shirt had a stain on it. She said the mark on the T-shirt looked like a smear. The shorts worn by him were described as "footie shorts" .

Ms Patterson said that she then said to the appellant, "Have you hurt her?" and also "Should I call an ambulance?" . The appellant replied, "Call the police" . Ms Patterson said she again said, "Should I call an ambulance?" and the appellant responded, "Call the police" .

Ms Patterson said the appellant then just turned around and walked off and she noticed he had a knife sticking out the back of his pants. She then said she ran back home and rang Cobar Police.

The Appellant Flees From the Crime Scene

In his ERISP, the appellant said Leonie Patterson came to the front door and started yelling, "What have you done, what have you done to her?" (Q 71). The appellant said that he told her to ring the police. He said that she again said, "What have you done to her, Glen?" and he said to ring the police. She left to go, apparently, to ring the police. The appellant said, "... and I walked back in and had another look and I just freaked out and I run over, jumped the back fence ..." (Q 71). After that, he said he then "Just hid" (Q 72).

The appellant was asked (Q 74), "Can you tell me why you ran?" . The appellant replied, "I just freaked out, I couldn't remember how I got home and Leonie was saying, what have I done. I just freaked" .

Similar comments to those made above in relation to the knife and its use apply also here in relation to the appellant's conduct in fleeing the crime scene and hiding from police. Thus in a consideration of the evidence and, in particular, as to the inferences that may be drawn from it, it is necessary to consider the position of the appellant in the situation in which he found himself following the sighting of the deceased's body in the laundry.

The evidence does not demonstrate that upon seeing his slain partner, the appellant reacted overtly in terms of words and/or signs of grief or anguish or outrage. The sight of his partner, the mother of his two children, lying dead, one might think, would instinctively give rise to some form of demonstrable reaction.

Instead, the actions of the appellant constituted by his hesitancy in calling the police, his action in taking the knife and in fleeing and hiding for almost two days, exhibited a sense of self-pre-occupation or a self focus, rather than a sense of the surviving parent displaying the need to stay and support his children (and the deceased's other children). The evidence, in other words, reflects the appellant acting in a way which has the appearance of him shielding himself or avoiding accusation or investigation for fear of it connecting him with the crime.

In these circumstances, the question arises as to whether or not the evidence discloses a plausible basis for explaining what appears to have been the appellant's self focussed or avoidant conduct.

His explanation to police was put upon the basis that, having become intoxicated the previous evening, he was unable to recall events from the time he left the hotel at about 2.00 am. By reason of that fact, he said he was not in a position to say what had happened to his wife or whether or not he, himself, was implicated in her death.

The question then becomes whether the explanation given by the appellant to police is a rational one. Is the mere fact of an inability in a person to recall particular events, as a matter of rationality, likely to prompt or lead him or her to start thinking in terms that he/she may have been the perpetrator of a crime in a case such as the present? Is it likely to have led the person to commence thinking in terms of suicide? In other words, is the fact of the asserted loss of memory itself a rational or plausible explanation or basis for a person thinking along those lines? In evaluating that question and to take a hypothetical example, in a case where a husband had recently made angry threats against the life of his partner, it may be plausible that the injury or death of the partner following soon thereafter might cause the hypothetical husband (who has no relevant memory) to commence to think as to whether or not he had acted out his anger and have attacked his partner.

The question for consideration in the present case is whether the mere lapse of memory (accepting for the moment the appellant's account in that respect as being truthful), is sufficient of itself to rationally explain why he would have entertained the possibility that he had been the perpetrator of the crime? For it to constitute a rational explanation, it may well be thought that the appellant would need to have evidence of more than a mere loss of memory by virtue of intoxication before he started to entertain the possibility that he killed his partner and before deciding to flee with the intention of taking his own life.

The Appellant's Preparatory Suicidal Conduct at 5 Mitchell Street

The appellant's evidence was that he hid at Gorilla Rock until about 5.00 am on the Saturday morning and then went from there to 5 Mitchell Street, a vacant house. He remained at those premises until the next morning when he went to his mother's place.

On the walk-around the house, the appellant was asked by police about the rope with the noose in it (at 5 Mitchell Street):

"Q. And can you tell me what you intended to do with that? A. That was the last option, I suppose .

Q. And what do you mean by the last option? A. To hang myself.

Q. Can you tell me why you were considering hanging yourself? A. Why? I already went through this on the tape.

Q. Yeah, but obviously you've tried to harm yourself with the knife? A. Ah hmm.

Q. Alright. And then you've come here and it would appear that you've set up some sort of rope -- A. Ah hmm.

Q.-- in the ceiling to hang yourself. But from what I understand is, you say that you didn't kill Gabrielle -- A. Right

Q.-- but you don't know what happened? A. Ah hmm." (Emphasis added)

The police investigations revealed the following:

(1) A blue nylon rope was hanging from the hallway ceiling. It was tied through a hole in the ceiling adjacent to the manhole opening. A metal bar had been used to create the hole in the ceiling plaster.

(2) A small yellow covered notebook and a ballpoint pen were located on the shelf of a built-in wardrobe of a bedroom adjacent to where the rope was located. Inside the notebook the appellant had written, "I have done the worst thing ever" .

The significance of the circumstances in both (1) and (2) above are to be considered. Both the actions involved in putting the nylon rope in place with the apparent intention of the appellant taking his life and the suicide note reflect the appellant's then state of mind. What did the appellant mean when he wrote "I have done the worst thing ever" ? In the submissions of the appellant to this Court it was argued that as the note was written as a suicide note it was intended that it would be read after the appellant had ended his life. The words, "the worst thing ever" , should be taken to refer to the act of him taking his own life.

However, after careful consideration, we are not satisfied that that is the appropriate or proper interpretation of the appellant's handwritten words. The use of the past tense "I have done the worst thing ever" in its most natural meaning, carries the sense of a reference to something that had occurred prior to writing the note rather than something, namely, suicide, that was intended to occur after the note was written. Additionally, the note carries the implication that the "worst thing" done by the appellant was the explanation or the preparatory reason for the drastic act of (intended) suicide.

On this latter construction, the evidence indicates that from the time the appellant picked up the knife at 18 Harcourt Street until he wrote the suicide note, the appellant's state of mind was at least consistent with a consciousness of guilt. The only factual matter offered by the appellant by way of explanation was his claimed loss of memory. There was no other fact put forward by him in the ERISP to explain why, within minutes of seeing the deceased's body, the appellant would embark upon imminent suicide, commencing with his action of taking the knife.

The immediacy of his actions leading to suicide (assuming he committed suicide), he would have had to appreciate, would leave no time or opportunity for police to track down his wife's killer (assuming the crime had been carried out by an unknown third party). That fact, in itself, raises a serious question as to the plausibility of the appellant's explanation given in the ERISP and of his denials that he committed the crime.

Insofar as the words "I have done the worst thing ever" are taken to refer to something done by the appellant, then clearly, in the context in which it was written, it is capable of constituting an admission upon the assumption that the phrase "... the worst thing ever" is taken as referring to the commission of the offence which in our view is the case. The words in question plainly are capable of reflecting the appellant's state of mind linked to what is expressed to be "... the worst thing ever" .

The handwritten note was not the subject of challenge, nor were its terms qualified in a way that affected the second version of the conversation said to have taken place between the appellant and Scott Shepherd. The solemn circumstances in which the note was written by the appellant, and its clear content, are not consistent with a lack of memory on the part of the appellant as to whether he had caused the injuries to the deceased from which she died. As to the submission made by the appellant in this Court that the "worst thing ever" in the note may be taken as a reference to the appellant's intended suicide, and not the killing of the deceased, no such argument was directed to the jury. In any event, such a construction is, as indicated above, fanciful in the circumstances of this case. If the appellant had committed suicide, his act would have been there for all to see. The note explains the reason for the appellant's intended suicide (the killing of his partner). In our view, the statement contained in the note is unequivocal and it constitutes a clear admission of guilt on the part of the appellant.

A degree of confusion in this respect came into the cross-examination on the subject of the appellant's DNA on the sleeve. It was in that context that trial counsel for the appellant referred to both the appellant and the deceased:

"Q. But you would lean more likely to the fact that it was his blood and her blood on the sleeve, more of her blood than his, is that right, in that case? A. That's right. Without, with the proviso that I could not rule out that it could be just a lot of skin cells.

Q. But in the front of the chest, the blood from the front of the shirt, the body of the shirt itself? A. Yes.

Q. Ms Best was a minor contributor to that, is that right? A. That's right.

Q. And Mr Shepherd was the major contributor? A. Yes.

..."

These latter questions and answers, when read in context and in the light of Ms Beilby's other evidence, confirmed her evidence that it was blood and not skin cells that was the source of the deceased's DNA on the sleeve of the T-shirt.

Accordingly, on this basis, the expert evidence established that the deceased's blood was located on the sleeve of the T-shirt. The issue then became whether the blood was deposited there during the attack or subsequently after the discovery of the deceased's body and after the appellant entered the laundry. We consider this issue at [187] below.

Upon consideration, we do not accept the submission made on behalf of the appellant that it could not be established beyond reasonable doubt that any DNA of the deceased on the T-shirt was from her blood. Ms Beilby's evidence, as we have stated, was to the contrary. A proper reading of her evidence went, in our opinion, well beyond stating that it was "only a possibility" that the DNA material was the deceased's blood on the sleeve.

(b) The board shorts

Police investigators located the pair of "NOW" brand cream-coloured board shorts in the centre of the courtyard. There were traces of smeared blood over the front of the right thigh area and the front of the left leg area. The stains were in the nature of smears. Screening of the board shorts returned positive results for blood being that of the deceased.

The board shorts found in the courtyard were near a pair of underpants and sandals. There was no blood found on the sandals and there was no evidence as to when the appellant removed the shorts or the underpants which, it was accepted, belonged to him.

The only direct evidence that the appellant touched the deceased was in answers given by him during the course of the ERISP. Jed stated that he did not see what the appellant did when he entered the laundry after he (Jed) had sounded the alert. He saw the appellant go in and come out of the laundry but did not say that he saw him kneel or lean over the deceased's body. The evidence on this aspect is further referred to at [177] below.

The proposition advanced by the appellant was that any blood stains on the board shorts could have resulted from the appellant kneeling over or leaning over the deceased's body in the laundry after Jed had alerted him to its presence.

The answers of the appellant in the ERISP, therefore, constitute the only form of evidence of the appellant coming in close contact with the deceased by moving her hair away from her face. The defence submission was that by these means it was possible that the appellant, in the course of moving the deceased's hair, resulted in blood coming onto his hands which he then wiped on the front of his board shorts.

(c) The claw hammer and the steam iron

The evidence indicated that the presence of DNA material from both the deceased and the appellant on the handle of the hammer and iron may be explicable by virtue of the fact that the claw hammer and the steam iron were household items that could have been handled by both. It is the absence of any DNA material of any third party that is at least potentially a negative fact of significance. It is, accordingly, important to examine the expert evidence given by Ms Beilby insofar as this aspect of the matter is concerned.

Ms Beilby was not cross-examined directly on the basis or bases upon which the absence of the DNA of any other person on the handle of the hammer or the iron could be explained, assuming that there was a third person who was involved in the attack on the deceased.

Ms Beilby was, at one point, asked a number of questions concerning the means by which DNA may be transferred from one person to another or to another item. In that respect, she was asked:

Q. Yes, and you only need an amount you can't see, a microscopic amount, for a DNA transfer to take place and be there when the testing is done? A. That's right. But again it depends upon the individual. Some people seem to give up their DNA fairly easily.

Q. Because they shed more skin cells than others? A. That is the thought behind it. And others can touch things for quite some period of time and never leave their DNA.

Q. Sometimes people perspire more than others? A. It could be. If we are talking about hands touching, it depends on how often the hands are washed."

The above cross-examination was not directed to the issue of the absence of any DNA of a third person from the handle of the hammer or the iron, but nonetheless was relied upon as evidence that meant one could not rule out the possibility that the abovementioned items were used by a third person in the murder of the deceased without the perpetrator leaving his or her DNA on the handle of either item.

The submission made on behalf of the appellant in this latter respect is one to be accorded due weight in terms of the possibilities. However, it should not, in our assessment, be accorded the same weight if the evidence of the expert (Ms Beilby) had been specifically directed in cross-examination to the issue concerning the handle of the hammer and the iron and she had addressed the absence of "foreign" DNA in that context. It was not so directed.

(3) Some Open or Unresolved Questions

Trial defence counsel, and counsel for the appellant in this Court, made submissions by reference to the forensic evidence, including bloodstains and DNA evidence. The presence or absence of bloodstains on the appellant's clothing worn by him and that located on the ground in the vicinity of the deceased, requires consideration in an assessment whether the Crown has proved the guilt of the appellant to the requisite standard. Submissions were made that, if the appellant was the assailant, then greater quantities of blood would have been detected on clothing or on him. The Crown response was that there were opportunities for the appellant to wash blood from himself.

In assessing the evidence on this aspect, it should be kept in mind that the scene of the crime was a backyard on the edge of the township of Cobar. The Crown contention that there were opportunities for the appellant to wash, at places other than those presenting within the immediate household, should be assessed in this light. The argument can cut both ways. On the one hand, it could be said that there were limited washing facilities at 18 Harcourt Street, and that forensic examination did not disclose that blood had been washed in those areas. On the other hand, these could not be said to be the only points at which washing could occur in the area.

In assessing this question, we keep in mind the fact that the presence or absence of blood may be of limited use in the circumstances of the particular case. This is not an area where a level of scientific precision and certainty can be deployed to point towards, or away from, guilt. It is necessary to assess the evidence on this aspect together with all the other evidence.

It seems clear, and does not appear to have been disputed, that the deceased's body was moved by the assailant after she was assaulted and that, after the body came to rest, she was further assaulted. It was the Crown case that it was the appellant who moved the deceased's body. It was the unchallenged evidence of Sergeant Salmon, the Dubbo crime scene examiner, that the assailant would have had blood covering his hands. Sergeant Carnell, the Queanbeyan crime scene examiner, gave evidence to the same effect. There were no footprints, whether barefoot or shod, found in the laundry. The Crown submitted that obvious care had been taken by whoever moved the deceased not to step in the copious quantities of blood which were then upon the laundry floor.

As we have observed, the Crown conceded that whoever moved the deceased would have had a substantial amount of blood on his hands. When the child Jed awakened the appellant on the Friday morning having discovered his mother in the laundry, he noticed a bit of blood on the tip of the ring finger of the appellant's left hand. However, when the appellant's hands were tested for blood after his arrest, no blood was found. On the other hand, blood was found on a doona of the bed which the appellant had occupied, but testing determined that the blood was that of the appellant and not the deceased. If the blood on the appellant's ring finger was in fact blood and was that of the deceased, it is difficult to see how it would not have come off on the bedclothes whilst the appellant was asleep. But there was no evidence of any of the deceased's blood on the bedclothes of the bed on which the appellant had slept. Jed's evidence then raises these and other questions for consideration.

As we have indicated, the board shorts were found in the courtyard together with a pair of underpants and sandals. Both the shorts and the underpants were determined to belong to the appellant as they had his DNA upon them. It was the Crown case at trial, repeated on the appeal, that although there was no evidence as to when the appellant removed his shorts, underpants and sandals and left them outside the laundry, he must have removed those articles in preparation for returning to the laundry in order to move the deceased after he had killed her.

In his ERISP the appellant, at Q & A 232, stated that when he saw the deceased in the laundry after being awakened by Jed, he " knelt down and pushed the hair away from her face a little ". When asked at Q 240 and Q 241 whether he had moved the deceased's body at all, he replied: " No. Only had time to lean down. I moved her hair away ...".

Jed, who was 12 years old at the time of the murder, and who had awakened the appellant after discovering his mother's body, said in evidence that the appellant went into the laundry/toilet and then came back out. When asked if the appellant touched his mother while she was lying on the floor, he said: " I'm not sure, 'cause I didn't see him ". In cross-examination he said that when the appellant entered the laundry he, Jed, remained away from the door and could only see the appellant's back. He agreed that he went in and then came out. He did not say that he saw the appellant kneel or lean down over the deceased's body nor was he asked any questions which would have enabled him to confirm or deny such actions by the appellant.

We mention these matters for, as noted above, it was suggested on behalf of the appellant that the bloodstains on the board shorts could have occurred when the appellant knelt or lent over the deceased's body. The Crown submitted that Jed had denied seeing the appellant so acting but we do not believe his evidence supported that proposition.

It was not put to Jed in chief that he had not seen the appellant kneel or lean over the body and not suggested to him in cross-examination that he had. Accordingly, the possibility remains that he did and that in moving the deceased's hair away from her face he got some of her blood on his hands which he may have wiped on the front of his board shorts. Such an explanation would be consistent with the appellant's innocence about the presence of blood on his board shorts.

Although the evidence established that the T-shirt the appellant was wearing when he was arrested was the same T-shirt as that which he was wearing when he was awoken by Jed on the Friday morning, there was no satisfactory evidence as to whether the board shorts found in the courtyard were those which the appellant had been wearing when he was at the hotel. The only evidence pertaining to that topic was given by Mr Jason Lawrence who said that when he saw the appellant at the Grand Hotel at around 5.00-5.30 pm on Thursday 20 November 2003 he was wearing " blue shirt, blue shorts, cargo shorts, whatever ". He agreed he had not paid much attention to what the appellant was wearing. None of the witnesses who saw the appellant at the Occidental Hotel that night were questioned at trial as to what the appellant had been wearing.

One difficulty facing the Crown case on this issue is that at most the evidence establishes that on the night in question the appellant was wearing blue cargo shorts whereas those which were found by the police in the courtyard and which had blood smears on them were described as cream-coloured board shorts (although we note that they appear to be light blue in the photographs of them in Exhibit E but this may simply be a product of the film used for the purpose). We have taken into account the emphasis placed by the Crown upon the deceased's blood being found upon the cream-coloured shorts, but that there was no evidence that those shorts were those being worn by the appellant on the night in question. The evidence contains a gap in this respect and, on one view of it, involves an inconsistency between the colour of the shorts which Mr Lawrence observed the appellant to be wearing early on the evening in question and the colour of those found by the police the next day. We note that the appellant accepted that the clothes he had on in bed when he was awoken on the Friday morning by Jed were also the clothes in which he was arrested three days later.

In its supplementary written submissions, the Crown submitted that there was no reasonable possibility that at the time he was awakened by Jed the appellant was wearing the shorts which were later found in the courtyard by the police or that those shorts were stained with blood when he entered the laundry after Jed had discovered his mother's body. It was submitted that the circumstance of the clothing being found with the blood of the deceased on them in close proximity to the laundry and the appellant's acknowledgement to the police that the clothes he was arrested in were the same clothes he was wearing when in bed, was consistent with the appellant having killed the deceased, washed all blood off himself at some suitable and nearby location in circumstances that precluded later discovery of where that occurred, changed his clothes and then retired to bed.

It can be accepted that the shorts the appellant was wearing at the time he was awakened by Jed and later arrested were not the shorts found by the police in the courtyard outside the laundry. However, given the evidence of Mr Jason Lawrence that he observed the appellant wearing a pair of blue cargo shorts earlier on the evening before the murder, there is no reliable evidence that the shorts found in the courtyard were those which the appellant was wearing when he left the Occidental Hotel at about 2.00 am on the night of the murder.

The Crown contended that the appellant must have thoroughly washed his hands to remove any trace of the deceased's blood before he went to bed on the night in question. Testing of the bathtub and otherwise in the bathroom of the house failed to locate the presence of blood. Further, dirt in the laundry tub suggested that it had not been recently used and presumptive tests for blood on the laundry taps were negative. The tap assembly outside the laundry was submitted to a biologist for examination and no blood was found. There is therefore no evidence to suggest that the appellant had washed off the deceased's blood at the scene. It was submitted by the appellant that this was difficult to reconcile with the Crown case. If the appellant had, after killing the deceased, got into bed with bloodied hands, then why is there no evidence of the deceased's blood on the bedclothes?

We have already made reference to the evidence of Jed who said that he saw blood on the appellant's ring finger when he followed him out to the laundry after he had been awakened. Blood was detected on the appellant's hands by the police after his arrest and found to be his own blood. It is possible that the blood seen by Jed on his hands on the morning in question was that of the deceased. However, the appellant submitted that it was improbable that the appellant managed to wash off almost all of the deceased's blood to the point that he had left none on his bedclothes but left behind a clearly visible amount of blood on his ring finger as seen by Jed.

The Crown's response to these submissions was that the deceased's residence at Cobar was one of a number of premises in a residential area with a quarry or mine to which the appellant had later fled some little distance away and at which the police later found water which had pooled due to rain. It was then submitted that there were, therefore, a number of alternative sources of water (apart from those at the Cobar residence) that the appellant could have used to wash off all traces of the blood of the deceased, albeit that none of those alternatives was later identified by the police as such a possible source.

The blood smears found on the shorts and the T-shirt could well have come from the appellant's hands brushing against his shorts and shirt. The fact that the sandals had no blood on them may be explained by the possibility that the appellant was not wearing them at the time of the assault. Given that there was none of the deceased's blood found on the bedclothes in which the appellant had slept, it must follow that, if he was the assailant, at some place he must have washed his hands before retiring to bed. There was no evidence that he did so in the laundry or at the tap outside the laundry. So he must have gone elsewhere. The fact that he left the shorts in the yard and kept the T-shirt on and did not dispose of them may be explained by the fact that at the time he was severely intoxicated and, therefore, was not thinking as clearly as he might otherwise have thought had he been sober and had had the presence of mind to hide his trail. For instance, he may have removed his shorts but inadvertently left them where they fell. His state of inebriation, although not sufficient to affect his mobility, may have been sufficient to cause him to be somewhat careless when removing himself from the scene and shedding his clothing. After all, he did not remove his T-shirt that was found to have blood of the deceased upon it. It is still somewhat of a mystery as to where he washed his hands but it is perfectly feasible that he was more concerned about washing his hands before he went off to bed than removing any blood-smeared clothing.

All of the above matters are, of course, part of the factual matrix of the case and are to be given full consideration along with the other evidence that went to make up the Crown case.

Summation

In Hillier at 637 [46], Gummow, Hayne and Crennan JJ observed:

"The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. ... It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence."

Their Honours also observed at 638 [48]:

"Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither a trial, nor on appeal, is a circumstantial case to be considered piecemeal ..."

In the abovementioned paragraph, their Honours then cited dicta of Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521 at 535. Their Honours (at 639 [49]) observed in the circumstances of Hillier that there was evidence (such as the evidence of unidentified DNA on a pyjama top) which was consistent with Mr Hillier's innocence. Their Honours observed:

"... But the question for the Court of Appeal was whether, on the whole of the evidence, it was open to the jury to be persuaded beyond reasonable doubt that he was guilty."

In considering the whole of the evidence, there are a number of matters that emerge. They include the following:

(1) Whilst the evidence established that both the appellant and the deceased were well affected by alcohol when they left the hotel, the evidence does not go so far as to establish that the appellant was "blind drunk" or unable to function or find his way home.

(2) It is in accordance with ordinary human experience that a well intoxicated person may retain capacity and ability to think and act, albeit with limitations.

(3) The first representation made by the appellant to his brother, Scott Shepherd, was not inadmissible for all purposes. In particular, notwithstanding the principle in Lee , the evidence as to the first statement made by the appellant to Scott Shepherd would have been admissible (subject to discretionary exclusion) for a non-hearsay purpose.

(4) The non-hearsay purpose associated with the first representation, if taken as evidence pointing against a complete loss of memory as the appellant asserted in the ERISP, goes to a fundamental issue supporting the defence, namely, an alleged inability to recall anything of significance after the deceased and he left the hotel.

(5) The appellant's post-offence conduct, in our opinion, is consistent with a consciousness of guilt. His conduct includes the making of the suicide note which, on its proper construction, in our opinion contains an unequivocal admission of guilt.

(6) There is, in our assessment, no plausible explanation for the appellant's extreme post-offence conduct directed to taking his own life. An inability to remember events after the appellant left the hotel could reasonably have caused him concern and anxiety having regard to the fate of the deceased. It, however, by itself does not provide a rational explanation for the appellant entertaining the idea that he may have been responsible for his wife's death to the point of deciding to take his own life.

(7) No other fact was identified by the appellant in the ERISP which would provide such a rational explanation.

(8) The DNA evidence, apart from the deceased's blood on the sleeve of the T-shirt, cannot be considered as unequivocal evidence implicating the appellant. However, nor does the DNA evidence provide an evidentiary basis for the possibility that an unknown person was the perpetrator of the crime.

(9) The absence of an acceptable explanation as to how the appellant could have washed any of the deceased's blood that may have contacted his hands or as to the disposal of blood-stained clothing are matters to be taken into account in determining whether the evidence as a whole established the appellant's guilt beyond reasonable doubt.

(10) The relationship evidence does establish that there existed significant financial stressors that had led to the decision by the deceased and the appellant to move back to Cobar. The financial pressures remained a factor in that relationship up to the date of the deceased's death.

We return to the question to be considered by the Court. Has the Crown proved beyond reasonable doubt, by reference to admissible evidence used permissibly, that the appellant is guilty of the murder of the deceased? As juries are told, it is not necessary for the Crown to prove beyond reasonable doubt every fact raised in the Crown case. Nor is it necessary for the Crown to answer every question which may be posed with respect to the Crown case.

The appellant's state of mind, as earlier noted, can be established in terms of timing as having occurred at least as and from the time that he picked up the knife and placed it in the pocket of his shorts. That state of mind clearly continued until he decided to come out of hiding and walked to his mother's house.

When Leonie Patterson directed specific questions to the appellant, his state of mind (the contemplation of suicide) had already been formed. Further, there were no words spoken by the appellant to Leonie Patterson in answer to her questions even to tell her that he had found the deceased dead in the laundry. No information as to the dreadful fate that had befallen the deceased was volunteered by the appellant in anything said by him to Ms Patterson. Again, the question arises as to whether the failure to state such an obvious fact is indicative of consciousness of guilt.

A further matter to be taken into account is that in the ERISP, the answers given by the appellant do not suggest that he "freaked out" because he thought that persons, including in particular, Leonie Patterson may have thought that he had been the perpetrator of the crime nor his fear that he would be accused of having committed the crime. Many of his answers recorded in the ERISP were simply to the effect that he "freaked out" or was "scared" because he did not know what had happened.

There is difficulty in concluding, as a rational explanation, that a person who had no reason to believe that he had committed the crime would take the extreme step of committing suicide based on a bare possibility that by some means and for no reason he had committed homicide. Why would the appellant consider the possibility of him having killed his wife when there was no apparent reason for him doing so? It is not in accordance with human experience that a person in the position of the appellant would commence to think he killed his partner when there was no identifiable reason to contemplate the possibility.

In this respect, "the conduct" of the appellant embraces a number of matters. The matters established in evidence convey a discernible common thread between the relevant aspects of the appellant's conduct following the death of his wife. They include:

(1) The conduct of the appellant demonstrating reticence or reluctance to immediately call the police as suggested by Jed (the then 12 year old son of the deceased).

(2) The appellant's conduct in taking a knife and placing it in his pocket before talking to Leonie Patterson, the deceased's sister.

(3) The appellant's conduct when challenged by Leonie Patterson.

(4) The appellant's conduct in running from the premises at 18 Harcourt Street before the police arrived.

(5) The appellant's conduct in hiding in the old open-cut mine.

(6) The appellant's actions in cutting his wrists and neck with a knife at the open-cut mine where the knife was subsequently found by police.

(7) The appellant's conduct in hiding out in the premises at 5 Mitchell Street (the empty, unfurnished house) where he stayed until 10.20 am on Sunday 23 November 2003. In particular, his conduct at that house in making a hole in the ceiling and attaching a rope with a noose through a hole in the manhole.

(8) The appellant's conduct at 5 Mitchell Street in writing a note on a notepad which said "I have done the worst thing ever" .

(9) The appellant's responses during the course of the ERISP by which, as a matter of implication, he admitted to the possibility that he had been responsible for the death of the deceased, although maintaining throughout that he had no memory of events after leaving the New Occidental Hotel in Cobar at 2.00 am on Friday 21 November 2003. In other responses, he denied killing the deceased.

(10) The appellant's conduct in writing and sending a card to his mother which contained a poem which he wished to be read by his children and which included the line, "One big night out, what a terrible cost" .

In summary, the Crown case, to a significant extent, relied first upon the proposition that the appellant's conduct, identified above, was evidence of consciousness of guilt and, secondly, upon the proposition that the "suicide note" (point (8) above) contained within it an admission that he had acted to bring about the death of the deceased, the statement being "I have done the worst thing ever" .

Apart from the question of whether the evidence was capable of constituting an admission that the appellant had killed the deceased, there is a question as to whether other evidence in which he stated that he had no memory of events accompanied by statements to the effect that he was not able to deny that he had been the perpetrator of the crime, contained an implication that he was at least admitting to the possibility that he was the perpetrator of the crime.

The evidence referred to at [192] is to be evaluated against the absence of any evidence of expressions of horror or outrage by the appellant upon discovery of the deceased's body. As against that, there is to be taken into account and assessed the possibility that the appellant was stunned or so taken aback by what he saw that he fell into a silent state.

In determining whether for the purpose of s.6(1) of the Criminal Appeal Act a substantial miscarriage of justice has actually occurred, an essential part of the Court's task turns on the question as to whether the evidence as to the conduct of the appellant (in the respects referred to in [198] above) was sufficiently cogent, taken in context with the other evidence in the Crown case, to establish beyond reasonable doubt that the appellant committed the offence charged. In other words, whilst there are, as discussed above, some unanswered questions, the issue is whether the conduct of the appellant is compelling, in the sense that it is, in the context of a circumstantial evidence case, evidence of such significant probative value as to satisfy the requisite standard.

Conclusion

In our view, the Crown has proved beyond reasonable doubt the guilt of the appellant for the murder of the deceased. There is a strong circumstantial case against the appellant, supported by a clear admission of guilt in the suicide note. Having regard to the totality of the evidence, the appellant's claim of having no memory of events is not plausible.

To the extent that it has been submitted that there is a reasonable hypothesis consistent with innocence based on the possible involvement of a third party as the assailant, or aspects of the evidence which raise questions as to whether the appellant was the assailant, we express our positive satisfaction that the Crown has proved the guilt of the appellant beyond reasonable doubt.

In reaching this view, we have considered the evidence bearing upon the second real issue in the trial - if it is proved that the appellant struck the blows to the deceased, did he do so with intent to kill or intent to cause grievous bodily harm? We have considered the evidence concerning the appellant's intoxication in this respect. That evidence includes the evidence of persons who were drinking with him and the deceased at the hotel, the appellant's conversations and movements, the observations of him walking away from the hotel at about 2.00 am and his own account in the ERISP of what he did, said and saw at the hotel before he left to head home with his partner. We are satisfied, beyond reasonable doubt, that the appellant had the requisite intent when he struck the deceased. Like Hoeben J in his remarks on sentence, we are satisfied to the criminal standard that the appellant acted with intent to cause grievous bodily harm: R v Shepherd [2006] NSWSC 799 at [50]-[55]. The number of blows struck to the head with two separate weapons, albeit with the use of moderate force, clearly establishes this level of intention.

Applying the test in Weiss , we are satisfied that no substantial miscarriage of justice has actually occurred. The evidence properly admitted at trial proves beyond reasonable doubt the appellant's guilt. Having expressed this view, the Crown has established that the proviso to s.6 of the Criminal Appeal Act should be applied, with the consequence that the appeal against conviction should be dismissed.

Although we would grant an extension of time for the appellant to appeal against conviction, and grant leave under Rule 4 for him to rely upon Ground of Appeal 2, we would dismiss the appeal.

For the foregoing reasons, we make the following orders:

(1) Extend time for the filing of a Notice of Application for Leave to Appeal up to and including 3 December 2010;

(2) To the extent necessary, grant leave to the appellant pursuant to Rule 4 of the Criminal Appeal Rules 1952 to argue Ground of Appeal 2;

(3) Appeal dismissed.

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Decision last updated: 29 November 2011

Medium Neutral Citation:	Shepherd v R [2011] NSWCCA 245
Hearing dates:	13 May 2011
Decision date:	17 November 2011
Before:	Tobias AJA, Johnson, Hall JJ at [1]
Decision:	Extend time for the filing of a Notice of Application for Leave to Appeal up to and including 3 December 2010. To the extent necessary, grant leave to the appellant pursuant to Rule 4 of the Criminal Appeal Rules 1952 to argue Ground of Appeal 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW - conviction appeal - appellant convicted of murder of his partner - conversation between appellant and his brother - brother's first version of conversation asserted that appellant said "How can they [the children] love me? I killed their mother" - brother later asserts first version was incorrect and that the appellant said "How can they love me if I killed their mother" - Crown given leave to cross-examine brother under s.38 Evidence Act 1995 - Crown relied on first version as admission of guilt - trial Judge directs jury that first version capable of constituting admission - contended on appeal that error in accordance with Lee v The Queen [1998] HCA 60; 195 CLR 94 - point not taken at trial - whether leave under Rule 4 should be granted - Crown concedes that error occurred at trial - whether proviso applied - Crown case involving circumstantial evidence and direct evidence - by reference to admissible evidence used permissibly, Court satisfied beyond reasonable doubt of guilt of appellant - appeal dismissed
Legislation Cited:	Criminal Appeal Act 1912 Criminal Appeal Rules 1952 Evidence Act 1995
Cases Cited:	R v Shepherd [2006] NSWSC 799 Lee v The Queen [1998] HCA 60; 195 CLR 94 Vickers v R [2006] NSWCCA 60; 160 A Crim R 195 Klein v R [2007] NSWCCA 206; 172 A Crim R 290 R v FDP [2008] NSWCCA 317; 74 NSWLR 645 R v Abusafiah (1991) 24 NSWLR 531 R v Wilson [2005] NSWCCA 20; 62 NSWLR 346 R v AA and Ors (No.1) [2009] NSWSC 1414 Weiss v The Queen [2005] HCA 81; 224 CLR 300 DJS v R [2010] NSWCCA 200 RWB v R [2010] NSWCCA 147; 202 A Crim R 209 Kessing v R [2008] NSWCCA 310; 73 NSWLR 22 Cesan v The Queen [2008] HCA 52; 236 CLR 358 AK v The State of WA [2008] HCA 8; 232 CLR 438 Gassy v The Queen [2008] HCA 18; 236 CLR 293 Swansson v R [2007] NSWCCA 67; 69 NSWLR 406 Aslett v R [2006] NSWCCA 49 Cornwell v R [2006] NSWCCA 116; 160 A Crim R 243 Taleb v R [2006] NSWCCA 119 Gardiner v R [2006] NSWCCA 190; 162 A Crim R 233 Fox v Percy [2003] HCA 22; 214 CLR 118 The Queen v Hillier [2007] HCA 13; 228 CLR 618 Doja v R [2009] NSWCCA 303; 198 A Crim R 349 De Gruchy v The Queen [2002] HCA 33; 211 CLR 85 R v Vjestica [2008] VSCA 47; 182 A Crim R 350 Shepherd v The Queen [1990] HCA 56; 170 CLR 573 Edwards v The Queen [1993] HCA 63; 178 CLR 193 R v Ciantar [2006] VSCA 263; 16 VR 26 R v Rich (Ruling No 11) [2009] VSC 11 Chamberlain v The Queen (No 2) [1984] HCA 7; 153 CLR 521
Texts Cited:	---
Category:	Principal judgment
Parties:	Glenn Kenneth Shepherd (Appellant) Regina (Respondent)
Representation:	Mr H Dhanji SC (Appellant) Mr P Ingram SC (Respondent) Justin Lewis & Co (Appellant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2004/4634
Publication restriction:	---
Decision under appeal	Citation: R v Shepherd [2006] NSWSC 799 Date of Decision: 2006-08-11 00:00:00 Before: Hoeben J File Number(s): 2004/2986