Symss v The Queen - [2003] NSWCCA 77

No judgment structure available for this case.

CITATION: SYMSS v THE QUEEN [2003] NSWCCA 77

HEARING DATE(S): 27 February 2003
28 February 2003

JUDGMENT DATE:
2 April 2003

JUDGMENT OF: Sheller JA at 1; James J at 121; Smart AJ at 122

DECISION: Appeal dismissed.

CATCHWORDS: Procedure - Trial of two co-accused - Murder - Cut-throat defence - Whether separate trials should have been ordered

LEGISLATION CITED: Criminal Appeal Act 1912
Evidence Act 1995

CASES CITED: Fernando (1999) NSWCCA 66
Gilbert v The Queen (2000) 201 CLR 414
Ignjatic (1993) 68 A Crim R 333
Lockyer (1996) 89 A Crim R 457
R v Middis (unreported) NSWCCA 27 March 1991
R v Birks (1990) 19 NSWLR 677
R v Collie (1991) 56 SASR 302
R v Georgiou (1999) NSWCCA 125
R v Lock (1997) 91 A Crim R 356
R v Patsalis and Spathis (1999) 107 A Crim R 432
Spratt (1982) 8 A Crim R 351
Webb and Hay v The Queen (1994) 181 CLR 41

PARTIES :
Appellant - Shane Antoni SYMSS
Respondent - Crown

FILE NUMBER(S): CCA 60305/01

COUNSEL: Appellant - In person
Crown - W G Dawe QC

SOLICITORS: Appellant - In person
Crown - S E O'Connor

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70212/00

LOWER COURT
JUDICIAL OFFICER : Howie J

60305/01
SHELLER JA
JAMES J
SMART AJ

Shane Antoni SYMSS v THE QUEEN

The appellant and his co-accused were each tried on three counts, including murder. On that count, the appellant was found guilty and his co-accused was found not guilty of murder but guilty of manslaughter. The appellant's grounds of appeal included that important evidence had been wrongly excluded by the trial Judge; that prejudicial evidence relating to the appellant's character was wrongly admitted; and that the trial Judge erred by refusing to grant the appellant a separate trial.

(by Sheller JA, James J and Smart AJ agreeing)

1. That the appeal should be dismissed.

2. That a prior threat by the co-accused to his sister that he would stab her was not of "significant probative value". It could not be inferred as a reasonable possibility that he, rather than the appellant, stabbed the victim on the basis of a threat "to stab" his sister.

3. The appellant's counsel had not complained about evidence that the appellant on appeal claimed was prejudicial and the appellant was bound by the conduct of his counsel: R v Birks (1990) 19 NSWLR 677 foll. The trial Judge's summing up adequately protected the appellant from any misuse of the evidence about the appellant's character, and it must be assumed that jurors are true to their oath, hearken to the evidence, and obey the trial judge's directions: Gilbert v The Queen (2000) 201 CLR 414 foll.

Webb and Hay v The Queen

R v Collie

R v Patsalis and Spathis

Legislation cited:
Criminal Appeal Act

1912

Evidence Act

1995

(1999) NSWCCA 66

(2000) 201 CLR 4104

(1993) 68 A Crim R 333

(1996) 89 A Crim R 457

(unreported) NSWCCA 27 March 1991

(1990) 19 NSWLR 677

(1991) 56 SASR 302

(1999) NSWCCA 125

(1997) 91 A Crim R 356

(1999) 107 A Crim R 432

(1982) 8 A Crim R 351

(1994) 181 CLR 41

ORDER

Appeal dismissed.

**********

60305/01

SHELLER JA

JAMES J

SMART AJ

Wednesday, 2 April 2003

Shane Antoni SYMSS v THE QUEEN

Judgment

1 SHELLER JA:

Introduction

2 On 18 May 2001 the jury returned verdicts finding the appellant guilty on all three counts and Masson not guilty of murder but guilty of manslaughter and guilty on counts 2 and 3. On 8 November 2001 the appellant was sentenced on the first count taking into account three matters on a form 1, to a term of imprisonment of 22 years from the date of his arrest on 27 April 1999 with a non-parole period of 16½ years expiring on 26 October 2015. On the second count he was sentenced to a fixed term of five years from the same date and on the third count a fixed term of two years from the same date. Masson was sentenced on count 1 for the offence of manslaughter taking into account pre-trial custody and matters on a form 1 to a term of imprisonment for 7½ years from 15 March 2000 with a non-parole period of 4½ years expiring on 14 September 2004, on count 2 to a fixed term of 3½ years from the same date and on count 3 to a fixed term of 18 months from the same date.

Crown case

3 The Crown case can be summarised as follows. In the week before Mrs Marino’s murder on Saturday, 24 April 1999, the appellant and Masson had become friends while staying at Wagga Wagga men’s shelter. They were both short of money. Masson knew the victim, who was aged 74 and lived alone. She was friendly with his former de facto partner, Racheal Windon, and fond of their child, Shannon. Masson had mown the victim’s lawns for some time. The appellant and Masson went to her house on 24 April with the intention of getting money. After persuading the victim to open her door and whilst inside her house, one or both of them cut her round the neck and smothered her with a pillow. They took jewellery and money and drove away from Wagga Wagga in her vehicle, eventually abandoning it on the outskirts of Broken Hill, where they were arrested on Tuesday, 27 April 1999.

4 During the days after the murder they spent money that they had stolen from her house. A sock containing some of her jewellery was found in the room where the appellant was arrested. DNA tests showed that hair found on the victim was consistent with the appellant’s DNA and blood found on a jacket in the room where the appellant was arrested contained DNA consistent with the victim’s DNA.

5 The Crown led the following evidence. At about 3.15 pm on Saturday, 24 April 1999 the body of Mrs Marino was found on the lounge room of her Wagga Wagga home by her next-door neighbour, Mr Doswell. He was able to enter the house through the open back door. He noticed that Mrs Marino’s garage was open and her car was not there. Mrs Marino was lying on the floor with a rug “crunched up” underneath one side of her body. Police were called and a crime scene examiner, Detective Coleman, noted that it appeared the body had been moved or dragged. He found a pair of earrings near her body at the base of the lounge. He discovered cigarette ash in the bedroom. Jewellery containers in the bedroom had been disturbed. There were positive presumptive tests for the presence of blood on the bedspread in the bedroom and on dried splash marks under the towel rack in the bathroom, on the basin and in the water in the toilet. The relatively small amount of blood on Mrs Marino’s face and hands gave Detective Coleman “the impression that she had been cleaned up and wiped down”. He noticed that the rear door fly screen gauze had been cut with a sharp instrument near the door latch.

6 Chemical testing in the lounge room revealed positive presumptive tests for the presence of blood on the rug (indicating a handprint and smear marks), a cushion, the armrest of the lounge and on the reverse sides of two cushions on the lounge. There was what appeared to be a right palm print on one of the cushions. Some items were subjected to further testing.

7 Another neighbour said that she heard Mrs Marino’s car drive out of the driveway at about 2 pm that afternoon.

8 The victim had complained on the morning of her murder to two neighbours that overnight her gate had been opened and the fly screen on her rear screen door had been damaged.

9 A forensic pathologist called by the Crown, Dr Lawrence, gave evidence that the cause of the victim’s death was smothering. He performed an autopsy on 26 April 1999 and noted that the injuries to her face were consistent with a pair of glasses being repeatedly pushed into her face. She had bruises consistent with being restrained. In answer to the question whether he saw an injury or two injuries to the neck area Dr Lawrence said: “yes, in the neck in the midline there was a stab wound. The stab wound was on the skin, 22 millimetres long, and it extended from the deceased’s left to her right and slightly upwards, about 32 millimetres. That is the length of the actual – that the knife penetrated.” Asked to identify where the wound was he indicated an area just above the knot on his tie. Asked to clarify how the stab marks were caused, Dr Lawrence said “it was clearly a sharp object such as the [sic] knife”. Asked about the force required to inflict such a wound Dr Lawrence said: “it is a very superficial wound, not very much force at all.” Dr Lawrence said that on the right side of the neck there was also a very superficial cut which was about 5 millimetres long and which penetrated the skin and not much more. Despite her injuries, there was surprisingly little blood on her face. Dr Lawrence said this was consistent with something being placed against her face or with her face having been wiped.

10 Dr Lawrence found six, long, dark hairs in excess of 200mm in length on her body. Detective Coleman also had noted the presence of the long hairs on Mrs Marino’s body when he saw her in her home. DNA testing on these hairs conducted by Ms Burger of the Division of Analytical Laboratories established that the DNA in two of the hairs was consistent with the appellant’s DNA. Ms Burger did not count the hairs that she received. She tested three. This followed microscopic examination to determine which hairs were suitable for testing. She gave this evidence:

“Q. In relation to testing of hair, is it true to say that if you have just a hair shaft, that is of no use for DNA testing? A. That’s correct.

Q. Do you need to have a part of the hair root and possibly some of the skin cells that surround the base of the hair shaft? A. I don’t really need to have the skin cells, but I do need to have the hair root, a good hair root.

Q. If you happen to have skin cells does that help your test? A. Yes, it does.

Q. In relation to the three hairs that you examined, were two of them found to have the same DNA profile as Mr Symss? A. Yes.

Q. I think in relation to the third hair you got no result? A. That’s right.

Q. Are you able to explain why that might be? A. With the third hair it could be because the hair root that I used may have been at a stage where it was about to be shed, so that the hair root was not in active growth. At that stage when a hair is about to be shed it is at a stage where the hair is dead, so the DNA tends to degrade along with the hair.

Q. In relation to the two hairs that you did test, did you treat them in any particular way? A. Yes. One hair, I washed the hair before testing, but one of the hairs I did the DNA test without the hair root being washed.

Q. The test that you did in relation to the unwashed hair, was that a strong test, or a medium test, or what was the situation? A. The unwashed hair gave a DNA result that was quite strong.

Q. What about the hair that had been washed? A. The hair that had been washed gave a normal average result.

Q. Are you able to explain why there might be a difference between the result of the washed hair and the unwashed hair? A. I would say that it is because the unwashed hair contained extra cells beside the cells within the hair root.

Q. So, they could be cells from the skin at the base of the hair shaft? A. That’s correct.”

11 In relation to the appellant’s movements about the time of the victim’s death, the Crown case was that he stayed at a men’s shelter in Wagga Wagga during the week before 24 April 1999. He arrived on Friday, 16 April 1999 when a Catholic nun spoke to him and assisted him with paperwork to enter the shelter. He was seen often with Masson (who was staying there) by a manager at the shelter, Mr Parnell. The appellant asked Mr Parnell if he could move into the same room as Masson.

12 On the evening of Saturday, 24 April at around 6 pm Mr Parnell approached the appellant about money he owed for his accommodation. The appellant said: “I’m in a hurry I have to leave”. Mr Parnell could recall the appellant’s “acute nervousness and agitation” at the time. He recalled that Masson had a bag that night. The appellant and Masson both left the shelter that night.

13 Earlier that afternoon the appellant and Masson were seen playing pool at a Wagga Wagga pub by a bar attendant, Mr Fagan. The appellant ordered full strength VB beer and drank about four schooners. He put money into a juke box. They talked to two girls at the pub and Masson offered to buy them drinks. Mr Fagan’s evidence was that the two accused arrived at the pub at about 1.30 to 1.45 pm and stayed at least until he finished his shift in that part of the bar at 4.30 pm.

14 The Crown tendered a hotel receipt from the Astor Inn in Wagga Wagga in the name of Leonard Masson for $104.05. Although the receipt was dated 24 April 1999, apparently it related to the previous night’s accommodation, Friday, 23 April 1999.

15 At about 3.30 pm on Sunday, 25 April 1999 Senior Constable Spielt and his wife were driving in a marked police vehicle near Ivanhoe when he saw two men walking along the road carrying several bags. He gave the men a lift into Ivanhoe. They gave their names as Michael and Stephen.

16 At about 8 pm on Sunday, 25 April 1999 Simon Jackson and two guests were at his country property ‘Denian’ about 200 kilometres from Broken Hill when two young men arrived in a blue Datsun Bluebird, the same make and model as Mrs Marino’s car. They were running low on petrol. When Mr Jackson asked one of the men how he would pay for the petrol he could only produce $3 or $4 in coins. Mr Jackson and one of his guests, Mr Ramsey, decided to refuel the men’s vehicle and there was a discussion about them leaving some money at a roadhouse as payment. The men drove away. Mr Jackson and Mr Ramsey noticed bags in the boot as they refuelled the vehicle.

17 At about 9 am on Monday, 26 April the officer in charge of the Salvation Army in Broken Hill, Mr Kingston, received a telephone call from a women’s refuge in Broken Hill. There were two men at the refuge seeking accommodation. Mr Kingston went to the refuge and met the two accused. He arranged accommodation for them at the Black Lion Inn at Broken Hill.

18 Tristan Robson met the two accused playing pool at the Black Lion Inn at about lunchtime on Tuesday, 27 April. They played some pool together and the appellant introduced himself as “Shane but call me Shorty”. The appellant was drinking beer and the co-offender, water. During the course of the conversation, Robson formed the view that the appellant was “big noting” himself by talking about bikie gangs, an uncle who, he said, ran such a gang, and how he had been taught martial arts by Jackie Chan. The appellant said “If anybody fucks with us, they’ll have their throats slit”.

19 The appellant asked Robson if he knew of anywhere that they could get some “smoke”. Robson took them to the place of a friend, Paul Dare, who supplied them with a quantity of cannabis in a silver foil for $25.

20 While at Dare’s place the appellant spoke to Masson in a form of gibberish, which Robson could not understand. The appellant then said they had to burn a car they had dumped on the outskirts of town because the police may find his hair in it and do a DNA test. The appellant said: “We’ve knocked this cunt and took their car”. Robson asked the appellant what he meant by “knocked”. The appellant said: “They’re dead”. Robson thought that the appellant was panicking a bit during part of the conversation. Dare indicated to Robson that he wanted the accused to leave. Robson returned with the accused to the Black Lion Inn. During the walk back the appellant said: “Its been on the radio. They found the body. If anyone calls the cops or dobs us in, I’ll slit his throat”. The appellant asked Robson if he could “get rid of some jewellery, not fake shit, all real diamonds and crap”.

21 The three men smoked some of the cannabis from Dare’s place in the hotel room at the Black Lion Inn and the appellant fell asleep. Robson and Masson went down stairs and played pool for a while before returning to the room and smoking some more of the cannabis. Robson left the hotel afterwards.

22 During the same afternoon on Tuesday, 27 April 1999 the Broken Hill police began their search for the two accused. Mrs Marino’s vehicle had been found abandoned about 5 kilometres east of Broken Hill. The police had photographs of them taken by a nun at the men’s shelter in Wagga Wagga. The police inquired at hotels and motels around Broken Hill. Surveillance was organised and the police arrested Masson at a pizza hut shop at about 4.55 pm. The appellant was arrested in the Black Lion hotel room at about 5.10 pm. The police immediately conducted a video recorded search of the room and found women’s jewellery in a tied up sock in a bag. Mrs Marino’s daughter later identified the jewellery as her mother’s. The police also seized a jacket, which was found to have a bloodstain on the sleeve. The DNA in the blood was consistent with the victim’s DNA.

23 The victim had known Masson’s former de facto, Racheal Windon, and her family for many years and she was fond of Masson and Ms Windon’s daughter, Shannon. Ms Windon and another friend of Mrs Marino gave evidence of a falling out between Mrs Marino and Masson after she accused him in 1998 of taking money from her purse. Two friends of Mrs Marino gave evidence of warning her around Easter 1999 not to let Masson into her house.

24 Both the appellant and Masson took part in several ERISPs with the investigating police officers. In essence, each accused blamed the other for the murder and denied taking part in the killing, admitting only to stealing the victim’s cash, jewellery and vehicle.

25 The appellant took part in three ERISPs. The first on 28 April 1999 at the Broken Hill Police Station, the second and third on 28 July and 19 October 1999 both at the Wagga Wagga Police Station. The appellant agreed in the second of these interviews that he had been served with a copy of the brief of evidence since taking part in the first interview three months earlier.

26 The appellant made the following statements and admissions during the course of the ERISPs:

He wanted $20 back that he had lent Masson earlier during the week before 24 April 1999 because he was running out of money to spend in pool competitions. Masson had wasted the $20 on poker machines. He and Masson “wanted to go in the pool comp”.

As at 24 April 1999 he owed money to the Wagga Wagga Men’s Shelter for rent.

He and Masson went to Mrs Marino’s house twice on 24 April 1999. On the first visit Masson and Mrs Marino argued on the front veranda about rumours being spread that Masson’s former de facto and their child had been injured or killed. The appellant and Masson did not go inside. They left and went up the street where the appellant had a sleep in a vacant lot, because he “was tired and sick of walking around all day with him (Masson) all over the place for nothing”. They returned to the victim’s home during the early afternoon. Masson told Mrs Marino he wanted to use her telephone. Mrs Marino said that she had been told not to let Masson in the house. Masson persuaded Mrs Marino to open the door. The appellant said that Masson went inside and he stayed outside on the veranda until Masson invited him in about 5 or 10 minutes later. Mrs Marino, he said, was lying on the lounge room floor by this time and there was blood on her face.

He admitted to grabbing jewellery from the jewellery box in her bedroom. He admitted to taking her vehicle with Masson.

When they were in the bedroom he asked Masson if Mrs Marino had any socks. He put on a pair of socks so as not to leave fingerprints.

27 When asked specifically why he stole Mrs Marino’s property, the appellant said “I don’t know”. When asked why he did not leave the house after seeing Mrs Marino on the floor, he replied “I don’t know”.

28 On the morning of 24 April when the appellant and Masson were eating breakfast (after Masson had gone into his sister’s empty house through a window and let the appellant in) Masson showed him some knives and offered him a silver knife earlier in the day on 24 April which the appellant said he did not keep. The appellant did have two knives which he usually kept in his bag, a “silver one with the army thing on it” and a “steak knife”, “cos I carry me own fork and knife and gas burner type thing”.

29 Earlier during the daytime on 24 April the appellant and Masson went to a football club at Wagga Wagga and tried to get in through the back. The appellant asked Masson to get a knife out of his (Masson’s) bag while they were at the football club. The appellant said: “I was just trying to cut a hole in so I could stick my hand and open the latch”. He tried using two of Masson’s knives on the doors of the club.

30 The appellant was asked if he told Robson and Dare in Broken Hill that he had knocked someone and got their car. The appellant responded: “I don’t know might have”. When asked why he said that he answered: “I don’t know”. He contradicted these answers in his second interview three months later. When it was put to him: “Tristan Robson tells us that you said then that you’d killed someone”, he replied: “No, I wouldn’t have said, I, ‘cause I didn’t”.

31 The appellant said that when he and Masson were in Mrs Marino’s home, a red ute pulled up outside so he pulled Mrs Marino by the ankles away from the window. He “heard a noise out the back and then I pretty much fell on her, but I didn’t actually land on her, ‘cause my foot got caught on something, when I went to run, like, my foot wouldn’t come up, so I tripped and ran out the back”. When asked “what happened then?” he replied: “What happened then I stayed out there then and then had a cigarette”. He sat down on a chair in the sunroom while he smoked the cigarette. He butted it out on the carpet because he could not find an ashtray then pulled the rug over it. He also drank a coke in the sunroom.

32 Asked why he remained with Masson in the days following Mrs Marino’s murder he replied: “I don’t know … I was just pretty mixed up”.

33 The appellant said that he and Masson abandoned the victim’s vehicle “because I heard it on the radio, that she was dead”.

34 He agreed that Detectives Venables and Jorgenson had seen him on remand at Silverwater Correctional Centre on 20 May 1999 when he asked them if Masson was still blaming him for Mrs Marino’s death. It was put to him by Detective Venables (from notes he had taken from their earlier conversation) that after Detective Venables replied that Masson was still blaming him the appellant said: “We’ll see about him then. Did you find the bone knife? Masson threw a knife out of the window of the car I was driving, it was out on the dirt road somewhere … well if you find that it might show who killed her.” The appellant was asked by Detective Venables if that was an accurate recording of their conversation on 20 May and the appellant replied: “Something like that”.

The appellant’s case at trial

35 The appellant did not call evidence and relied upon the version of events given in his ERISPs. He agreed at those interviews that he went twice to the victim’s house with Masson on 24 April 1999 but only because Masson had said that he would be able to borrow money from the victim. In his second ERISP the appellant said (in answer to question 124) “the whole intention was he said he’d be able to borrow it, he said there’d be no problem there.” When Masson suggested going to her house on the second occasion, because he wanted to ring a mate about an employment opportunity, the appellant suggested that he ask her to lend money if she would calm down.

36 On the second visit the appellant stayed outside on the front veranda after Mrs Marino invited Masson inside so he could use the telephone. “Then he (Masson) came to let me in, told me to come in and I walked in and I seen her body in the lounge room and then he just told me to search around for money. He knew where the money was, so, he just said ‘go through the jewellery’.”

37 The appellant did not kill Mrs Marino or assist Masson in killing her. She appeared to be dead when he went inside. He “went along” with Masson, who told him to look for items to steal. The presence of the appellant’s hairs on Mrs Marino could be accounted for by the reason of him moving her body in the lounge room and almost tripping over her body when his foot got caught on something. The crime scene officer, Detective Coleman, could only say that the hairs were “generalised as being located on the body itself”. Masson told him to move the body out of the way. The appellant “was pretty scared, he (Masson) seemed to know what he was doing”.

38 While he could not explain why he remained with Masson after the murder, he was “pretty mixed up” at the time and was using cannabis and drinking alcohol during the following days. He did not carry the knife that Masson showed him earlier on 24 April 1999. He did not have his two knives – the silver one with the army emblem on it or his steak knife – when they went to Mrs Marino’s house.

39 In his second ERISP the appellant said that he wanted to go to TAFE to complete his year 10 Maths and English so that he could join the army. The appellant asked about opportunities to study at TAFE at the places they went to. Mr Parnell, the manager of the Wagga Wagga Men’s Shelter confirmed that the appellant said he was hoping to get into TAFE to do some courses. There was a conversation about the appellant going back to study at TAFE with Mr Luke, the manager of the Black Lion Inn in Broken Hill. Mr Luke also told the police that it appeared to him that Masson was more of the authority figure between the two accused.

40 In relation to the appellant’s conversations in Broken Hill with Tristan Robson, counsel for the appellant put to Robson that the appellant “seemed to be a person who was big noting himself”. Talk about having been taught martial arts by Jackie Chan was clearly exaggerated.

41 Counsel in his closing address said that the appellant had been drinking before making these statements and his comments about “knocking” someone should be viewed in that context.

42 On 24 April, before they went to Mrs Marino’s house, Masson told the appellant to walk past his parents’ house in Wagga Wagga to see if there were any vehicles in the driveway because “the whole intention was he (Masson) was going to rip off his parents before he left town”.

43 The appellant denied tampering with the fly screen of Mrs Marino’s back door.

44 Counsel for the appellant in his opening address asked the jury to pay particular attention to the appellant’s state of mind at the time of entering the victim’s premises. Counsel said: “The issue in this trial before you is going to be whether you are satisfied that, in my submission to you, what his intention was when he went to the home of Mrs Marino, that is the only important consideration for you.”

45 Counsel in his closing address said the appellant was being frank in his interviews with police and that he did not intend to rob Mrs Marino when he went with Masson to her house. There was no attempt to rob her on their first visit.

Appeal

46 The appellant was unrepresented on his appeal. He filed two sets of handwritten submissions dated 7 August 2001 (1 page) and 27 November 2002 (4 pages). The appeal was listed and called on for hearing on 27 February 2003. The appellant handed up in Court a handwritten document setting out additional grounds of appeal numbered 9 to 15. Because the appellant, for reasons not his own fault, did not on that occasion have in court the notes he had prepared for argument the appeal was stood over to and re-listed on 28 February 2003. On that date the appellant handed to the Court notes of argument which he relied on. Amongst other things the appellant claimed that he was denied a fair trial and his lawyers, particularly his counsel, ignored his instructions during the trial.

47 The Crown, in its written submissions, which were provided to the appellant, arranged and numbered 1 to 8 the matters the appellant relied upon in his first two written submissions. This explains the numbering of the appellant’s further grounds of appeal. The appellant’s initial grounds of appeal were:

1. Evidence that was important to the appellant’s case was wrongly excluded by the trial Judge on the ground that it was prejudicial to the co-accused’s character.

2. Prejudicial evidence relating to the appellant’s character was wrongly admitted.

3. The summing up to the jury was defective because the trial Judge directed the jury to find “who was the person most likely to have committed the offence”.

4. The trial Judge erred by refusing to grant the appellant a separate trial.

5. The trial Judge erred by allowing the excision of certain parts of the co-accused’s ERISPs that were self-contradictory.

6. His Honour erred by allowing evidence of the co-accused calling the appellant a “psycho”.

7. The appellant’s legal representatives did not follow his instructions and his trial counsel, Mr Hanley, was incompetent because he

(a) did not use a report to counter the co-accused’s “psycho” comments;

(b) did not call a witness, Kellie Doab, who gave evidence at the committal;

(c) did not ask further questions about whether the appellant’s hair was found elsewhere in the victim’s lounge room;

(d) did not ask further questions about the age of the appellant’s hair roots found on the victim.

8. The trial miscarried because a jury member was approached during the course of the trial.

48 The further grounds of appeal can be summarised as follows:

9. The trial Judge erred in allowing the co-accused, Masson, to change his plea on the second charge to not guilty.

10. The trial Judge erred by not discharging the jury on the appellant’s application particularly having regard to the co-accused’s change of plea.

11. The appellant crossed out this ground which I treat as abandoned.

12. The trial Judge misdirected the jury by stating that the jury could not possibly find that scratch marks on the arm of the co-accused resulted from his involvement in any struggle or act of violence against the victim.

13. The trial Judge misdirected the jury about the evidence of the hair and live root that was attached and material which appeared to be skin. In particular the appellant complained of the suggestion to the jury that they could make up their own minds about the evidence regarding the hair when it was a matter for medical expertise and not for a lay person to rely on common knowledge, especially when the medical expert could not confirm that the hair had been pulled out.

14. The trial Judge erred by allowing the jury to view the record of interview between the co-accused and Detective Venables where the co-accused cried and Detective Venables patted him on the back and said “Are you alright mate”.

15. The trial Judge erred by refusing to discharge the jury as the result of something said by counsel for the co-accused.

Ground 1

49 The appellant submitted that the trial Judge should not have excluded evidence about Masson’s previous use of knives. Further, evidence from Masson’s sister, Natalie, should have been admitted to the effect that she told one of the investigating detectives that she “kicked her brother out of the house as he threatened to stab her”. The appellant submitted that if Masson’s use of knives and the threat to his sister had been admitted it would have assisted him by tending to show that Masson, rather than the appellant, stabbed and killed the deceased. The appellant developed this argument in his later notes of argument referring to statements that the co-accused had said, “This is how you hold a knife if you want to kill someone”. He referred also to statements that the co-accused was on medication for his mood swings and fits of rage and refused to take his medication. He said he instructed his lawyer to raise questions with Detective Jorgenson and other officers that were with her when they went to the co-accused’s sister’s house about this threat. Detective Jorgenson did not give evidence.

50 Masson gave four interviews to the police and the appellant three. Before the trial, the trial Judge and counsel discussed the admissibility of various parts of the ERISPs. Counsel for Masson explained that he and counsel for the appellant, Mr Hanley, had each submitted to the Crown a list of objections to the content of the ERISPs. The Crown agreed to excise certain material from the ERISPs and this left some areas for the trial Judge to rule upon. The trial Judge said he did not wish to hear the detail of those areas that had been agreed, simply those areas where a ruling was required. After hearing submissions on 27 April 2001 the trial Judge ruled that evidence of Masson’s prior use of knives was inadmissible. His Honour said:

“22 The final matter raised at this point in time is the admissibility of evidence sought to be adduced on behalf of the accused Symss as to Masson’s involvement with knives prior to going to the deceased’s premises. Symss would seek to lead evidence from witnesses called by the Crown, or available to the Crown, which would reveal that Masson had a continuing interest, if not fascination, with knives for a period before the death of the deceased. The evidence would show that Masson had access to a number of knives, that he was prone to carry a knife on or about his person, and that he would play with the knife he was carrying either by, for example, flicking the blade in and out or throwing it repeatedly into the ground. Further, evidence could be placed before the jury that on one occasion Masson had said that he was going to use a knife to kill a cat and on another occasion he demonstrated how to use a knife to kill someone.

23 It is submitted on behalf of Symss that this evidence is relevant to prove that Masson was responsible for the death of the deceased and not Symss.

24 The forensic evidence is that the deceased was suffocated but that there were two small knife wounds on her throat. One of these wounds was a 22 millimetre horizontal stab wound in the centre of the deceased’s neck. There was another superficial wound to her throat.

25 There is evidence that Masson had at least one knife with him when he went to the premises of the deceased on the second occasion. Symss in his records of interviews with police denied that he had a knife at that time. However, he told police that he knew that Masson had two knives earlier in the day and that they were in a bag that Masson carried to the deceased’s premises. He said that Masson threw a bone-handled knife out of the deceased’s motor vehicle shortly before they arrived at Ivanhoe.

26 Masson told police that he had two knives with him that day, but that he had given one knife to Symss. He said that the knife which he retained was in the pouch of his bag and that he did not remove it at any time whilst at the deceased’s home. He also told the police that the knife was thrown from the motor vehicle between Hurlstone and Ivanhoe. Further, in a videoed walk-around with police, Masson indicated to them that Symss had thrown the knife into the ground on a number of occasions.

27 Mr Hanley submitted that Symss was entitled to adduce this evidence to suggest that it was more likely that Masson would have stabbed the deceased than Symss. Symss told police that Masson had at least one knife when they went to the premises of the deceased and this is not a matter which is in dispute. In his submissions Mr Hanley pointed out that Masson told police that he had a dream-like recollection of seeing Symss holding a knife at the throat of the deceased. However, it is to be borne in mind when considering the admissibility of the evidence which Symss seeks to adduce that nothing said by Masson is admissible against Symss, and I would tell the jury this on more than one occasion.

28 Although Mr Hanley initially sought to argue otherwise, the evidence is relevant, if at all, to show that Masson had some tendency in respect of knives or their use from which it could be inferred that it was a reasonable possibility that he stabbed the deceased. I have some difficulty in appreciating at this point in time just what that relevant tendency might be, however, even accepting that it is open to a jury to rationally infer that from evidence that it was more likely that Masson stabbed the deceased than Symss – a proposition which I doubt – in my view the evidence is not sufficiently probative to justify its admission under section 97 of the Evidence Act.

29 That section is concerned with the admissibility of evidence to prove that a person had a tendency to act in a particular way or to have a particular state of mind and provides that such evidence is not admissible unless it has ‘significant probative value’. It has been held that the word ‘significant’ in this context means ‘important’ or ‘of consequence’. The evidence sought to be adduced must be more than merely relevant under section 55 of the Act. The probative value of the evidence depends upon the nature of the fact in issue to which the evidence relates and its importance in establishing that fact.

30 In my view the evidence of Masson’s prior involvement with knives does not bear on the probability of whether it was Masson who stabbed the deceased rather than Symss. There is nothing about the nature of the knives, the manner in which the accused is alleged to have used the knives or what he said about his knowledge of the use of knives which would indicate that he had any relevant tendency in respect of knives from which it could be inferred that there was a reasonable possibility that it was he who stabbed the deceased rather than Symss or that he was more likely to have a knife about his person rather than in his bag.

Lockyer

32 In that case it was alleged that the accused had been responsible for the death of his young daughter by bashing her. The only other person suspected of the child’s death was its mother, who was also present in the house while the child was bashed to death. The accused sought to lead evidence from which it could be inferred that on prior occasions the mother had acted violently to the child. Hunt CJ at CL held that the evidence was admissible.

33 In my view that is a vastly different case to the one before me and the evidence which the accused sought to have admitted was clearly probative of the possibility that his wife had caused the injuries to the child because of evidence from which it could be inferred that she had done so before.

34 Although it is only necessary for the accused to show that the evidence is admissible under section 97 and there appears to be no other basis upon which the evidence would be rendered inadmissible or should be rejected by me, in my view it does not have sufficient probative value to raise the reasonable possibility that it was the accused Masson who stabbed the deceased rather than the accused Symss. Therefore, in my view the evidence is inadmissible.”

51 In addition to Lockyer the Crown referred to R v Lock (1997) 91 A Crim R 356. In that case the question concerned the admissibility of evidence of three stabbing incidents tendered by the Crown to show the accused’s tendency to stab the deceased deliberately in arguments with him. The accused was standing trial for murder based upon her act of stabbing the deceased. Those facts are in marked contrast with evidence which says nothing about the nature of the knives, the manner in which Masson was alleged to have used the knives or what he said about his knowledge of the use of knives which would indicate he had any relevant tendency in respect of knives from which it could be inferred that there was a reasonable possibility that it was he who stabbed the deceased rather than the appellant or that he was more likely to have a knife about his person rather than in his bag. There was nothing in the nature of the wounds suffered by the victim or the manner in which they were inflicted that could be linked particularly to Masson’s prior use of knives and thus have “significant probative value” within the meaning of s97(1)(b) of the Evidence Act 1995.

52 With regard to the statement of Natalie Masson, Masson’s sister, about the threat to her, the only statement in the DPP brief was that of Detective Sergeant Handley that Ms Masson was not prepared to attend court in Sydney and speak with the appellant’s legal representatives. There was no statement by Ms Masson. In his submission, the appellant said “Detective Judy Jorgenson from the Wagga Wagga Police spoke to my co-accused’s sister Natalie Masson and Natalie told Detective Jorgenson that she kicked her brother out of her house as he threatened to stab her. But the judge would not subpoena her in court because she is his sister.” The Crown submitted that a complaint by Masson’s sister without any further detail was not evidence of any “significant probative value” to establish the relevant tendency on the part of Masson. It could not be inferred as a reasonable possibility that he, rather than the appellant, stabbed the victim on the basis of a threat “to stab” his sister.

53 Masson (unlike the appellant) did not deny that he had possession of a knife on the day of the murder. Masson admitted carrying a knife in his bag in his interview. Thus, the issue of Masson having a knife on the day in question was before the jury.

54 In my opinion, there is no substance in this part of the appellant’s appeal.

Ground 2

55 Prejudicial evidence relating to the appellant’s character was wrongly admitted. Mr Hanley objected to the admission of material in Masson’s record of interview that raised the appellant’s character “things he allegedly told Masson about being in gaol, armed robberies, association with bikie gangs”. In his later notes of argument the appellant urged that to suggest the jury would put what the co-accused said in his statement out of their mind when deciding their verdict for the appellant was impossible. The appellant also complained about the evidence of Tristan Robson. He asserted that this evidence was misleading and unduly influenced by the police. It displayed a high degree of impressionability. He claimed that it should have been rejected and criticised his counsel for not objecting to it.

56 Howie J dealt with the admissibility of such evidence in his judgment of 27 April 2001 refusing the appellant’s application for a separate trial. In that judgment, Howie J said:

“5 The material which has now been brought to my attention is statements made by Masson in recorded interviews he made with the police, which, it is said, raises the bad character of Symss and which Symss would not be in a position to rebut. The submission is that the prejudice arising from allegations made by Masson as to the bad character of the accused Symss is so great that directions that I might give to the jury, for example that material in Masson’s records of interview could not be used in the case against Symss, would be of no avail.

6 This is the quintessential cut-throat defence case in which each of the accused has given versions of the incident giving rise to the charge to police which implicate the co-offender and exculpate himself. In the course of his statements to the police, Masson asserted that it was Symss who had killed the deceased and that this was conduct by Symss which was unexpected by Masson and unintended by him.

7 One of the difficulties for Masson in persuading the police that he was in no way responsible for the death of the deceased was perhaps seen by him as being that he remained with Symss from the time that Symss allegedly killed the deceased until both of them were arrested some days later in Broken Hill. The police questioned Masson as to why it was that he did not seek to escape from Symss, why he continued to accompany Symss, notwithstanding that he knew that he had murdered the deceased and especially why he did not take the opportunity, when both Symss and he were in the company of a police officer, to reveal the conduct of Symss in killing the deceased.

8 In order to explain this conduct, Masson told the police on a number of occasions that Symss had said to him that he had committed armed robbery offences and that in other ways he was associated with people of a violent disposition who would not hesitate in punishing Masson if he revealed Symss’ involvement in the murder or if Masson sought to leave Symss’ company.

9 It is this material which Mr Hanley says is so prejudicial to his client that a separate trial ought to be granted.

10 There will be no evidence placed before the jury to suggest that anything Mr Masson said in regard to Mr Symss’ character or his associates is true. In fact the Crown will be alleging that most of what Mr Masson said in his statements to the police is false. In particular, of course, the Crown will be alleging that Masson either killed the deceased or was involved in her death in a preconceived plan with Symss.

11 Further, all that Masson is asserting is that the accused told him various things, including that he had convictions for armed robbery. There is no assertion from Masson that he knew independently that anything that the accused said to him was true. There will be no evidence in the Crown case, apart from Masson’s interviews with police, that either Symss did make statements about his criminal record or associates to Masson or that what Symss said in those statements was true.

12 The jury would be directed that the only relevance of that material is that Masson says that this is what he was told by Symss, whether it be true or not, and that it was the belief that these matters might possibly be true which caused him to remain with Symss and to accompany him to Broken Hill, notwithstanding that he knew that Symss had murdered the deceased.

13 In the particular circumstances of this case it seems to me that a jury would not be so prejudiced by this material that they would use it to convict Symss of the murder of the deceased or to find as a fact that he was involved in her death regardless of directions that they might [have received].”

57 No evidence was led by the Crown about the truth of Masson’s allegations. In summing up to the jury, Howie J said that they must bear in mind throughout their deliberations “what I have said repeatedly through this trial, that you cannot take into account in any way, when considering the Crown case against one accused, what the other said to the police, either in his recorded interview or otherwise.” His Honour continued:

“There is also evidence that Mr Symss said that he had been in gaol before, that he had connections with bikie gangs and that he committed some robbery offences. Most of that material is contained in the interview between the police and Mr Masson, although of course, there is some evidence from Mr Robson about those sort of statements being made by Mr Symss. In fact, there is no evidence that Mr Symss had been in gaol before, or that he had any sort of criminal record, or that he did have any connection with bikie gangs. The relevance of that material to Mr Masson’s case is that this is what Symss said to him, both before they went to the house during the course of the robbery and thereafter and that, Mr Masson says, gave rise to a concern for his personal safety and explains, so Mr Molomby [Counsel for the co-accused] put to you, why he would remain in Symss’ company after the robbery and before their arrest and why he never made any real effort to contact police about Mr Symss killing the deceased, even when he was in the company of a police officer and even when he might have had use of a telephone.

…

But there is no suggestion other than what comes from Mr Symss himself, if you accept he said these things either to Mr Masson or to Mr Robson, that he had any sort of criminal record, or that he planned to do any armed robberies, or anything of that sort.

This evidence is concerned only with a person’s beliefs, that is a person’s state of mind, and not whether that material on which the state of mind or belief is based is in fact true. As I said to you, I think during the course of the trial, you know from your own experience that people say things that are not true or that they don’t intend to have taken literally. You know that people can form views based on misinformation. They can form views about matters that they believe to be true, which are not true, either because somebody has told them something which is false or they have misheard it or misunderstood it.

So all of that material that is presented in this case concerning Mr Symss’ past is relevant as it might affect Mr Masson’s state of mind and belief as part of this explanation that he gives for not having done anything either to assist Ms Marino, or to report Mr Symss’ activity.

You will also take into account, I suppose, evidence which might suggest that Mr Symss was a big noter, at least that is how Mr Robson viewed him. That he was prone to some at least extravagant statements in efforts, it appears, to impress others, and especially, it seems, when he has had a few drinks behind him. You might think that Mr Robson wasn’t much impressed with Mr Symss.

As I have already said to you, there is actually little or no evidence to indicate that Mr Symss was a violent person, or that he had unsavoury connections, or that in any way he was a person of bad character before this particular day.

The important matter, and this you must pay heed to, is that you cannot use that material in any way to prejudice Mr Symss by thinking that Mr Symss, because he is of bad character in some way based upon this material, therefore might have been involved in the robbery of Ms Marino, or that he was more likely to be involved in her killing. Now that would not follow logically, it does not follow legally, and that is not why that evidence was placed before you.”

58 Tristan Robson gave evidence that the appellant spoke about an uncle who ran a bikie gang during a conversation between himself, the appellant, Masson and another man at the Black Lion Inn in Broken Hill on 27 April 1999. Again the Crown led no evidence of the truth of the statement. The evidence is of the same nature. It was a threat or warning in the mind of the co-accused Masson. The Crown submitted that no impermissible prejudice was occasioned to the appellant as a result of Mr Robson’s evidence. Alternatively, it was submitted that rule 4 of the Criminal Appeal Rules, which provides that 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 of appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing, applied. Counsel for the appellant did not object to the evidence. The appellant was bound by the conduct of his counsel; R v Birks (1990) 19 NSWLR 677 at 683 and 685. Counsel for the appellant cross-examined Mr Robson on his evidence that the appellant was big noting himself by talking about bikie gangs and by claiming that he had been taught martial arts by Jackie Chan. Clearly counsel’s forensic purpose was to undermine the weight that the jury might otherwise give to the appellant’s critical alleged confession to Robson that “we knocked this cunt and took their car”. The appellant used the term “knocked” to mean “they’re dead”.

59 Evidence was admitted that the appellant planned or sought to steal from other properties on the day of the victim’s death. In his interview of 28 July 1999 he mentioned attempting to break into a football club. On 19 October 1999 he referred to a plan, which he said Masson suggested, to steal from Masson’s parents. This evidence was relevant to Masson and the appellant’s shortage of money at the time they went to the victim’s house. His Honour summed up to the jury on the appropriate use they could make of this evidence:

“Again those matters are put before you for a specific purpose and have no other relevance. The Crown says in its case against Mr Symss that they indicate that before he and Masson went to Ms Marino’s home, Mr Symss had been involved in attempts to obtain money illegally. The Crown asks you to accept that this is a relevant consideration in determining the reason why Mr Symss went to Ms Marino’s home, or what happened at her home for whatever reason he went there initially. The Crown says that these attempts to obtain money are part of a series of connected events or a course of conduct by Mr Symss that ended up eventually with the death of Ms Marino. They are not before you as evidence of Mr Symss general bad character, or to suggest that he was in the practice of being a thief. They are simply there as part of the history the Crown asks you to take into account of the lead up to what happened at Ms Marino’s home.

As Mr Hanley said to you, what they might suggest to you is that Mr Symss was in fact being frank with the police, and that he was telling them the truth about what had happened on this particular day. Otherwise there was no reason for him to volunteer this information. Mr Hanley says also that at least you can accept from that material that he was not looking to try and rob somebody in the street, or to go to a house where a person was present. Quite the opposite. He was at that point trying to obtain money without attacking anybody.

60 In my opinion, the summing up adequately protected the appellant from any misuse of the evidence about the appellant’s character. In Gilbert v The Queen (2000) 201 CLR 414 at 425-6, McHugh J spoke of the assumption fundamental to the criminal jury trial that jurors are true to their oath, hearken to the evidence and obey the trial judge’s directions. His Honour said that if that assumption was rejected or disregarded

“no one – accused, trial judge or member of the public – could have any confidence in any verdict of a criminal jury or in the criminal justice system whenever it involves a jury trial. … Put bluntly, unless we act on the assumption that criminal juries act on the evidence and in accordance with the directions of the trial judge, there is no point in having criminal jury trials.”

61 At 426 McHugh J quoted what Pidgeon J said in Spratt (1982) 8 A Crim R 361 at 372: “an appellate court must proceed on the basis that the jury have understood and applied the law in reaching a true verdict.”

62 I am satisfied that the ground raised under this second head of appeal fails.

Ground 3

63 The appellant made this complaint in the written submission of 7 August 2001. No such direction was given to the jury and no further argument was put in the later notes of argument. Towards the end of his summing up the trial Judge said:

“Now, as I indicated earlier in the summing up, it may be that in this case that you find both accused not guilty of murder and not guilty of manslaughter. That is because you cannot be satisfied beyond reasonable doubt who killed Ms Marino, and you are not satisfied beyond reasonable doubt that they did the act together as the Crown contends.”

64 His Honour gave the usual directions on the onus and standard of proof. As an example he said:

“Remember throughout your deliberations that, because this is a criminal trial, the burden of proving the guilt of the accused, each of them, on any charge they face which is in contest with the Crown, is upon the Crown. The accused starts from the position that he is presumed innocent of the charges alleged against him, and that presumption continues until the Crown satisfies you beyond reasonable doubt that he is guilty.

…

But as a matter of practical reality in this case, before you can convict either of the accused of the murder of Mrs Marino, or robbery in company with wounding, the Crown must have proved beyond reasonable doubt, that the version given by the accused to the police cannot possibly be true.”

65 Counsel for the appellant did not complain about any aspect of the summing up when invited to do so. Accordingly, rule 4 applies. There was no substance in this ground of appeal.

Ground 4 - Separate trials

66 On 28 November 2000 Simpson J refused to order separate trials. The application for a separate trial was renewed before the trial Judge who refused it. Counsel for the appellant submitted to Howie J that the prejudice which would flow from a joint trial where Masson made assertions in his ERISPs about the appellant having committed armed robberies and having an association with a bikie gang, could not be cured by directions. In a passage already quoted, his Honour said:

“This is the quintessential cut-throat defence case in which each of the accused has given versions of the incident giving rise to the charge to police which implicate the co-offender and exculpate himself.”

67 The trial Judge said that there would be no evidence led in the trial to prove the truth of any of these allegations. The Crown did not seek to prove them. He noted that the Crown’s case was that most of what Masson said in his statements to the police was false. The only relevance of the assertions against the appellant was that it “caused [Masson] to remain with Symss and to accompany him to Broken Hill, notwithstanding that he knew that Symss had murdered the deceased.” In his further notes of argument the appellant relied upon his submissions under ground 2 about the effect of the admission of prejudicial evidence against him.

68 The decision whether or not to grant separate trials involves a consideration of the interests of justice, including conserving costs, the avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts.

69 In an unreported decision of 27 March 1991, in R v Middis 70412 of 1990, Hunt J said on the question of whether there should be separate trials:

“Briefly, the relevant principles are that:

and

3. where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material,

70 A little later in his judgment at p5 Hunt J said:

Oliver

if

71 In Webb and Hay v The Queen (1994) 181 CLR 41 at 88-89 Toohey J, with whom Mason CJ and McHugh J agreed, said on the question of whether there should have been separate trials:

R v Webb and Hay

Reg v Collie

Reg v Demirok

Reg v Harbach

In the end the critical question before an appellate court in these circumstances is whether, by reason of the joint trial, there has been a substantial miscarriage of justice, or put another way, whether improper prejudice has been created against an accused.

In the present case adequate directions were given by the trial judge. It is true that Webb did not give evidence and was therefore not subject to cross-examination, though the jury heard his statements to the police implicating Hay. But, as King CJ observed (1992) 59 SASR at 585: ‘That is a commonplace feature of a joint trial and does not of itself render separate trials necessary.’ Properly instructed by the trial judge, as they were, the jury were capable of appreciating the use they could make of evidence as against each of the appellants. It has not been shown that a substantial miscarriage of justice is likely to have occurred.”

72 In R v Patsalis and Spathis (1999) 107 A Crim R 432 Kirby J refused an application for separate trials which was opposed not only by the Crown but also by the co-accused. In his reasons for judgment, which on appeal to the Court of Criminal Appeal (2001) NSWCCA 476 at 148, Heydon JA, as his Honour then was, described at 148 as a model of their kind, Kirby J said at 434:

R v Oliver

73 Dealing with cut-throat defences Kirby J referred to the decision of Hunt CJ at CL in Ignjatic (1993) 68 A Crim R 333 and to Webb and Hay. In Ignjatic Hunt CJ at CL, after referring to earlier decisions, said at 339,:

but they would not in my view arise frequently.

Masters

74 In this Court in Fernando (1999) NSWCCA 66 the trial judge had refused to order separate trials. The Court identified the issue which gave rise to the application for separate trials in these words at para 220:

“The tenor of Brendon Fernando’s statements to the police was that while he was present during most of the events which occurred he was subject to the control of Vester Fernando, who was armed with a machete. Indeed, he stated to the police at the time when the victim was killed he was not present, having left the company of Vester Fernando and the victim shortly before the lethal event must have occurred. Thus, while his statements may not be considered as being a complete ‘cut-throat’ defence they are certainly exculpatory to a degree of his own participation and thoroughly implicate Vester Fernando.”

75 Brendon Fernando did not give evidence so that his statements were not capable of being tested by either the Crown Prosecutor or Vester Fernando’s counsel. Even so, the Court said at para 222:

Webb and Hay

76 For present purposes I regard it as sufficient to emphasise the factors identified by King CJ in Collie and Webb and Hay and adopted by Toohey J in Webb and Hay in the High Court. There are important reasons of principle and policy why persons charged with committing an offence jointly ought to be tried together, particularly where each seeks to cast the blame on the other. The dangers from the admission of evidence which would not have been admitted if the appellant had stood trial alone can be obviated by express and careful directions as were given in this trial .

77 Moreover, this is not a case in which it could be said that the evidence against the appellant was significantly weaker and different from that admissible against Masson and that there was real risk that the weaker Crown case against the appellant would be made immeasurably stronger by reason of the prejudicial material. The Crown case against the appellant was a strong one. In my opinion, there was no error in refusing the application for a separate trial. Compare R v Georgiou (1999) NSWCCA 125 at 4.

Ground 5

78 The appellant claimed that the trial Judge had erred by allowing the excision of parts of Masson’s ERISPs that were self-contradictory. In its submissions the Crown extracted and quoted the excisions. Examination of those excisions demonstrates that the suggestion that the appellant was prejudiced by the omission of this evidence is not made out. Indeed, the evidence omitted was of a nature prejudicial to the appellant or, alternatively, irrelevant to the case against either of the accused. In his further notes of argument the appellant complained about the omission of that part of the co-accused’s first recorded interview in which he claimed he did not know anything about the victim being stabbed when in a later interview he said he thought he saw the appellant with a knife stabbing the victim and showed the police where the victim was stabbed. The appellant said that the jury should have been aware that the co-accused was not sure about a lot of things that were supposed to have happened. There is no substance in these matters.

Ground 6

79 This relates to evidence that after Masson and the appellant were placed in the Broken Hill police cells Masson said “I want to talk to you guys now. Get me away from him” and indicating the direction of Symss’s cell said “and I’ll tell you everything. You’ve got to protect me though, he’s a fucking lunatic.” This was part of the evidence given by Inspector Williams, at the time a Detective Sergeant, which in the later notes of argument the appellant said would have further influenced the jury in making their decision. It was part of the evidence relevant to Masson’s mental state to explain why he remained with the appellant in the days after the murder. Counsel for the appellant did not (and could not) object to the evidence. In context it was more an expression derogatory of the appellant rather than a reference to a mental illness or psychological condition.

80 In his summing up, as already pointed out, Howie J said that this evidence was directed to the co-accused’s alleged concern for his personal safety at the hands of and in the presence of the appellant.

81 In my opinion, there is nothing in the point.

Ground 7

82 (a) The appellant’s legal representatives did not follow his instructions and his trial counsel was incompetent because he did not use a report to counter the co-accused’s “psycho” comment. The report was that of Dr Bruce Westmore dated 11 September 2001 which was prepared after conviction and tendered by the defence at sentencing. Dr Westmore said that the appellant was not suffering from a major depressive illness and no psychotic features such as delusions or hallucinations were identified. However, the lunatic comment by Masson was made in the context of his beliefs about the appellant and was admissible as being relevant to his state of mind. Howie J directed the jury that comments of this nature by Masson were not admissible as evidence against the appellant. In any event, Dr Westmore’s report was related to an examination on 10 September 2001 and could not be relevant to Masson’s comment on 27 April 1999, nor could it have been mentioned in the trial, since it did not then exist.

83 (b) The same complaint is made about counsel’s failure to call Kellie Doab. The appellant said:

“Kellie Doab is the witness from my committal hearing who identified my co-accused as the one wearing his jumper/jacket that had blood on it from the deceased which my co-accused claims I was wearing it [sic]. I instructed my lawyer to call that witness in at my trial, but that witness was not called in.”

84 At the start of the trial when the Crown prosecutor gave an estimate of its length he indicated he was discussing with counsel which witnesses would be called. He said there were potentially eighty witnesses but it was hoped that with discussion that would be reduced to a much more manageable number. A list of witness whom the Crown proposed to call was drawn up by the Crown and given to the legal representatives of each accused before the trial. The Crown did not propose to call Ms Doab. Mr Hanley did not object to the Crown not calling Ms Doab nor did he call her himself.

85 Ms Doab’s account was not helpful to the appellant. She gave evidence at the committal on 12 July 2000 when the appellant was represented by Ms Hamilton (the instructing solicitor at trial). Her police statement was admitted as an exhibit. She said that at about 1.55 on Saturday, 24 April 1999 she saw the driver of a blue Nissan Bluebird in Wagga Wagga as the vehicle drove quickly past her. She said:

“I only saw one male person in the car and he was driving the car. This person was in his late 20’s to early 30’s years old. He had dark brown short straight hair, he looked like he was of medium build, he was Australian looking, he had a tanned complexion. His skin wasn’t too dark but it wasn’t light. He was wearing a navy blue track suit style top and I think it had a V neck. I don’t know whether he had anything under the jumper. I don’t think it had any emblems on it, not one’s that stood out anyway. I think that he may have had matching pants on. I was able to look down in the car a little bit because I was sitting quite high on my bike.”

86 She was cross-examined by Masson’s legal representative, Mrs Evers, and asked to describe the driver’s clothing again. She said:

“It appeared that it was a blue – dark blue – I don’t know, it might have been black, it might have been green, I’m not too sure - jumper on, sloppy joe.”

87 She was asked in cross-examination by Ms Hamilton if a photograph of a jumper was similar to the jacket worn by the driver. The witness replied: “Could have been, like I couldn’t tell you if it had a zipper or not.”

“Q. Are the colours similar to what you saw that day? A. Yeah, but it didn’t have those light blue sleeves, it was sort of that dark all over.”

88 In further cross-examination Ms Doab said that the sleeves of the jacket worn by the driver were not light blue sleeves, unlike the jacket depicted in the photograph.

89 The significance of this evidence depended upon its being accepted that Ms Doab saw Masson driving the victim’s vehicle shortly after the murder. But her evidence cast doubt on whether Masson was wearing the jacket shown in photograph No. 100 which was found in the hotel room in Broken Hill with the appellant when the police arrested him. DNA testing subsequently showed that a bloodstain on the jacket sleeve was consistent with the victim’s DNA.

90 The Crown submitted that Ms Doab’s evidence would not have assisted the appellant at trial. In fact, viewed objectively, it may have harmed the appellant’s case by tending to show that irrespective of what jackets the appellant and Masson may have worn from time to time, Masson was not wearing the blood stained jacket very shortly after the victim’s murder.

91 Accordingly, there was a good forensic reason for the appellant’s counsel not to call Ms Doab at the trial.

92 In his later notes of argument the appellant emphasised that the co-accused had admitted to getting blood on his fingers. He claimed that this must have happened when he was checking the victim’s pulse. This it was said would be consistent with the bloodstains on the sleeve on the jacket. There was evidence that when seen on the afternoon of the murder the appellant was wearing what he described as a Puma jacket.

93 I am not persuaded that the suggested evidence from Ms Doab would have assisted the appellant. There is nothing in this point.

94 (c) The next complaint was that counsel did not ask questions about whether the appellant’s hair was found elsewhere in the victim’s lounge room. Dr Lawrence, who conducted the autopsy on the victim, said that he noticed the hairs later identified as the appellant’s on the victim’s jumper and around her body but was unable to say where the hairs were originally because the body had been transported in a body bag. Ms Burger’s analytical evidence was that the DNA in a sample of the hairs was consistent with the appellant’s DNA. Detective Coleman gave evidence that he formed the view that the deceased had been moved or dragged at some stage by reason of the carpet having been moved in the victim’s lounge room and due to its position relative to furniture and her body. The appellant admitted in the first interview of 27 April 1999 to dragging and moving the victim out of the way. In the second interview he said that he “pretty much fell on her, but I didn’t actually land on her cause my foot got caught on something”.

95 The appellant’s argument was based on the suggestion that the victim struggled with Masson elsewhere in the lounge room, away from where she was found. The appellant suggested that his counsel should have asked if any of the appellant’s hairs were found elsewhere in the lounge room. If not, the absence of the appellant’s hairs where the initial struggle took place supported his case that it was Masson who killed her. The short answer is that there was no evidence of the appellant’s hairs being found elsewhere in the lounge room. This left open the argument for the appellant’s counsel in final address to suggest that Masson alone killed the victim. The Crown submitted that a question to Detective Coleman “Were there any other dark coloured hairs in the lounge room” would have been potentially dangerous. It may have resulted in an unfavourable answer. The Detective, it was suggested, might have said “I don’t have a note of it so I cannot rule it out”. In the absence of the Crown leading evidence that the appellant’s hair was found near the scene of an initial struggle, there was no need for Mr Hanley to ask the question.

96 In the later notes of argument the appellant contested this. He said that three hair samples were taken, one from the body of the victim, one from the appellant when he was arrested and one from the floor of a room the appellant had been staying in before the murder. He submitted that all this evidence should have been brought to the jury’s attention because the Crown was suggesting that the appellant’s hair had been pulled out in a struggle. He submitted that if this had happened there would have been more than six strands of hair and the hair should have been found where the struggle and murder took place. This would raise doubt in the jury’s mind. Further, if these questions had been raised and witnesses such as Ms Doab called the trial Judge would not have been able to instruct the jury that they could not convict his co-accused alone for the murder. The appellant felt that he was the only one on trial for murder and that it was only a joint trial in order to have his hands tied so he could not use any of the other evidence from other witnesses which he would have been allowed to do in a separate trial. He complained that his trial was not fair and just.

97 Evidence that strands of the appellant’s hair were found on the victim’s body was admissible. The weight to be given to that evidence was a matter for the jury. It had nothing to do with questions of whether or not it was open to the jury to convict the co-accused alone for murder.

98 In any event, the Crown left the murder charge with the jury on more than one basis. Both accused may have been involved in stabbing and smothering her and may have taken different physical roles during the attack. Mr Hanley addressed the jury at length on the issue of the appellant’s hair. His remarks suggest he gave careful consideration to his presentation of arguments to the jury. He said:

“One of the other pieces of evidence that have been given considerable weight in this trial is the presence of the accused’s hair. Where precisely it was at the time the police arrived, I would submit to you, is somewhat ambiguous because Mr Coleman, despite being the forensic officer, doesn’t make any notes of the particular location of his hair as you think he might if it’s going to have some significance, identify them, isolate them, put them in little jars or whatever.

…

Now the fact that the hairs are either on her, around her, has been suggested to you, show some indication he may have participated in killing her, smothering her maybe. In my submission, that’s not available. You would be speculating that. All the evidence shows he was in close proximity to her and he doesn’t deny that.

…

As I say to you, all he can show is that he was near her and there were explanations of him as to how that could have happened in the first record of interview. He says in answer to question 250, ‘I know I walked over a couple of times to get to the kitchen’, and if you look at Exhibit B and see the layout of various rooms and where Mrs Marino’s body was you can see that the doorways to the kitchen is very close to that. In that answer, part of it is not at least to those of us who have listened to it sometime discernible. [sic]”

99 The trial Judge in summing up said that the presence of the hairs

“… by itself may not tell you a great deal at all about what happened and Mr Hanley has made submissions to you about what the hairs alone might or might not reveal. It may be that if the hairs alone were considered, that anything else that follows is mere speculation.”

100 The trial Judge summarised the appellant’s arguments in his summing up in a way that was fair to the appellant and gave the jury the opportunity to assess those arguments. This ground of appeal is not made out.

101 (d) The next head of complaint related to the failure to ask further questions about the age of the appellant’s hair roots found on the victim. The argument was that counsel should have asked more questions of Ms Burger with a view to establishing that the hair roots were too old for them to have been pulled out by the victim in a struggle so they must have fallen out when he moved her body or nearly tripped over her. The difficulty was that Ms Burger did not have the relevant expertise to answer such a line of questioning. The trial Judge stopped the questioning by counsel for Masson and by a member of the jury on this basis.

102 At the end of the summing up Mr Hanley placed on the record in the absence of the jury that he had objected to Ms Burger answering the question about how a hair root could be “plucked out”. Howie J confirmed that the objection had been upheld and the witness did not have the relevant expertise. The Crown submitted there was therefore no basis for this ground of appeal. The appellant was bound by the conduct of counsel and the witness did not have the relevant expertise in any event. There was no evidence presented as to the age of the appellant’s hair root. On the Crown case at trial the hairs must have come from a struggle between the appellant and the victim because hairs do not usually fall out in that quantity and certainly not with the live roots attached. On the appellant’s case he had given an explanation as to dragging her body away from the window. He stepped over it a number of times and also at one stage tripped and nearly fell on her. This explained the presence of his hair on the victim.

103 In the later notes of argument the appellant mounted under this head a general attack on his counsel. Nothing in those submissions gives any ground for concern about the competence of the appellant’s counsel or the way in which counsel conducted the trial on his behalf.

104 It was submitted that this ground of appeal fails. I agree.

Ground 8

105 This head related to the approach made to a member of the jury during the course of the trial.

106 On the sixth day of the trial, 2 May 2001, Howie J told the parties that a member of the jury had reported that she was on the train on the way home the previous night when a person spoke to her and eventually made it clear that the person knew she was a juror. That person had been present in the back of the court room during the day. The juror stopped the conversation on the court case at that point. It transpired that the person who spoke to the juror was the sister-in-law of the victim, who explained to the Crown prosecutor (during a short adjournment) the nature of the conversation she had had with the juror. The Crown prosecutor informed the court of the nature of the conversation which the Crown submitted was an innocuous one in the nature of polite conversation while on public transport. His Honour discussed with counsel what course should be taken. He then addressed the jury and said:

“There was no suggestion here that there was any impropriety on anybody’s part, and certainly if I might say so, the juror did exactly the right thing. That was to refuse to talk to the person about anything to do with the Court case, and secondly, to report the matter to the officer this morning. …

Luckily everybody is satisfied that there was nothing at all in this occurrence which would raise any concerns whatever. Therefore we can continue with the trial and as I say, I thank the juror for both the conduct in relation to this conversation and for bringing it to my attention.”

107 Mr Hanley did not speak in opposition to this course and the trial continued. It was submitted that the appellant was bound by his counsel’s conduct, which was entirely proper in the circumstances. In his later notes on argument the appellant complained that there was no way of knowing whether or not other jury members may have been similarly approached. What matters is that there was not the slightest suggestion by anybody present at the trial, including the members of the jury, that any other member had been approached. This ground of appeal fails.

Ground 9

108 On 16 May 2001 after the trial Judge had commenced his summing up by in the absence of the jury the trial Judge raised with counsel for the co-accused his concerns about the fact that the co-accused had pleaded guilty to robbery with wounding. When the jury returned counsel for the co-accused applied for leave to withdraw the plea entered in relation to the second count. Leave was given and the charge again read out to which the accused pleaded not guilty, but guilty of robbery in company. Asked if the plea of guilty to robbery in company was accepted by the Crown in discharge of that count in the indictment the Crown prosecutor said it was not. The appellant’s submissions under this head proceeded on the misapprehension that the Crown had dropped the more serious charge in favour of the lesser charge. That was not what happened. Furthermore there was no agreement that the co-accused was not guilty of the more serious charge. In fact, of course, the jury convicted him on this charge. This series of events, properly understood, did not of itself justify any application by the appellant to have the jury discharged. The appellant’s counsel made such an application based on something said by counsel for the co-accused described as relating

“to the line of argument that he was putting to the jury, that Mr Symss, according to Masson, told him that he had been to armed robberies using machetes and shotguns and gaol and I think he then went on to say that’s what happened here or similar to what happened here. My submission is that has been elevated to something that has not been said but to a fact.”

Counsel was concerned that even though the evidence was of something the co-accused said, Mr Symss told him it was going to be impossible for any direction to cure that impression. This argument has already been dealt with under ground 2. The matters raised under 9 are not made out.

Ground 10

109 This has been dealt with under ground 9.

Ground 11 was abandoned.

Ground 12

110 This relates to the fact that the victim’s nails or most of them “were not tested” even though the co-accused had scratches on his arm.

111 During cross-examination by counsel for the appellant, Sergeant Williams was asked whether after the arrest of the two accused at Broken Hill he noticed any marks on Masson. He said he did not recall. Asked “No scratches?” he said: “Not that I recall. Again, if I had, I would have drawn it to the attention of the doctor during the medical examination”. The jury was sent out and in their absence the following took place.

HANLEY: I forgot that.

HIS HONOUR: You can talk to the Crown about it, maybe nothing flows from it.

HANLEY: Just in relation to any marks on Mr Masson, there was reference in the record of interview by Chief Inspector Williams to Mr Masson about some marks.

HIS HONOUR: Mr Masson had some scratches which he said came from when he got out of the car.

HANLEY: This police officer has now said he cannot recall any or he would have had him checked. My concern is whether I can refer him to the record of interview that is not tendered against me.

HIS HONOUR: I think you can refresh his memory. You can show him the video, you can show him the transcript of it, you can refresh his memory about it.

CROWN PROSECUTOR: I have no objection to my friend just reading the question and answer from the transcript.

SHORT ADJOURNMENT

(Mr Molomby informed his Honour that he was concerned about the matter raised in Mr Hanley’s cross-examination of Det Williams, that being the comparative lack of injuries to Mr Symss and some scratches on Mr Masson. He submitted one would apprehend that that may be a foundation for a submission that there was a significant difference between the two of them which might be attributable to what happened.

However he stated that Mr Hanley had agreed there was no proper foundation for such a submission nor that he intended to make one. However Mr Molomby sought a direction from his Honour at an appropriate time stating that there was no evidence that the scratches on Mr Masson were caused by anything other than what the accused said they were caused by.

His Honour stated that he would incorporate that with other directions in his summing-up.)

HIS HONOUR: I can indicate now my present intention, subject to any change in the evidence in the matter, is in relation to your client to direct the jury that there is no evidence before them that your client actually killed the deceased and that they could not convict your client unless they were satisfied beyond reasonable doubt that he was a party to a joint common enterprise.

I will hear the Crown on that later but it seems to me that must be so from the present state of the evidence.”

112 In the course of his summing up the trial Judge said:

“Let me just say this about the injuries, there is nothing to indicate that the injuries which Mr Masson had upon him and which he showed the police officer in the record of interview were as a result of any attack upon Ms Marino by him, or any attack by her upon him. He gave the explanation, which has never been denied by the Crown in any evidence, that those scratches came about as a result of his brushing up against twigs or foliage when he got out of the car in the outback somewhere. There is no suggestion, and you could not possibly find, that those injuries were as a result of his involvement in any struggle or act of violence against Ms Marino.”

113 In my opinion, there is no basis whatever for the appellant to seek to reopen this concession on this appeal.

Ground 13

114 The trial Judge summed up as follows:

“In the case of Mr Symss the Crown says that you would find he was involved in the suffocation of Ms Marino, either by himself or with Mr Masson. The Crown relies upon the general background evidence which I have already referred to when I was explaining the concept of a circumstantial case. But in particular, it relies upon the finding of Mr Symss’ hair on, or near the body and the fact that two of those hairs had live roots in conjunction with the other material.

The Crown says that you would find that the hairs must have come from Mr Symss during a struggle with Ms Marino, because you would be aware from your own general knowledge and experience of life that human hair does not normally fall out, certainly not in that sort of quantity, certainly not of its own accord, with live roots attached. Now, the fact that someone’s hair is found on or near a dead body, as I indicated to you earlier, may not itself prove that the person killed the deceased, but again you do not look at that matter in isolation. You can also take into account, of course, Mr Symss’ account of what he did.

He said that he dragged her body away from the window, stepped over it on a number of occasions, and also at one stage tripped and nearly fell upon her. So you have to consider, for example, in looking at the Crown’s circumstantial case, whether those hairs might have come to be on or about the body of the deceased for some reason other than the fact that Mr Symss was involved in her death. Again, even if you might, just looking at that matter by itself, have some doubt about the Crown’s contention, you can look at it in the context of the other evidence and see whether there is any other reasonable explanation for that hair being there other than that Mr Symss must have been involved in a struggle consistent with his involvement in her suffocation.”

115 Counsel for the appellant did not seek any redirection. In his later notes of argument the appellant claimed that the trial Judge misdirected the jury by saying they could make up their own minds about the hair even though this would be mere speculation because there was no way the jury could know without a medical degree or having tested their own hair what significance the presence of live roots on two strands would have had. Further, it was urged that the struggle took place away from the area where the victim’s body was found. In my opinion, the trial Judge’s summing up accorded with the evidence that was given and was appropriate.

116 The appellant complained about a want of evidence as a result of the limits of Ms Berger’s expertise. It was open to the appellant to call evidence at the trial about hair roots, how they dry and whether the state of the roots on the two hairs could, as the appellant speculates, suggest they had not been pulled out. Such speculation does not enable the appellant to complain about the trial Judge’s summing up or lack of evidence which it was open to the appellant to call.

Ground 14

117 The appellant claimed that this part of the record of interview between the co-accused and Detective Venables was highly suggestive as it would lead the jury to think that the police believed the co-accused to be telling the truth and also that the police felt sorry for him. This passage is not in the transcribed records of interview. Such of the ERISPs and video recordings as were admitted, were admitted without objection and the point now taken was not taken before the trial Judge. Appropriate directions were given as to the use that could be made of this material and in particular that none of it was evidence against the appellant. In my opinion, this point is without any substance.

Ground 15

118 This ground is dealt with under ground 9.

General

119 Section 6(1) of the Criminal Appeal Act 1912 requires the Court on any appeal under s5(1) against conviction to allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence or 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. In any other case the Court shall dismiss the appeal. Howie J’s summing up was thorough, careful and clear. At no time, when asked, did either the Crown or counsel for the appellant seek any redirection or further direction. Beyond the grounds raised on this appeal by the appellant which I have dealt with there could be no suggestion that the jury’s verdict was unreasonable, or could not be supported, having regard to the evidence and no suggestion that there was any wrong decision on any question of law or any miscarriage of justice.

Order

120 The appeal should be dismissed.

121 JAMES J: I have had the advantage of reading in draft the judgment of Sheller JA and I agree that, for the reasons given by his Honour, the appeal against conviction should be dismissed.

122 SMART AJ: I agree with Sheller JA.

**********

Last Modified: 04/03/2003

Citations

Symss v The Queen [2003] NSWCCA 77

Most Recent Citation

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Statutory Material Cited

1

R v Nudd [2004] QCA 154

R v Georgiou [1999] NSWCCA 125

R v Nudd [2004] QCA 154

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CITATION:	SYMSS v THE QUEEN [2003] NSWCCA 77
HEARING DATE(S):	27 February 2003 28 February 2003
JUDGMENT DATE:	2 April 2003
JUDGMENT OF:	Sheller JA at 1; James J at 121; Smart AJ at 122
DECISION:	Appeal dismissed.
CATCHWORDS:	Procedure - Trial of two co-accused - Murder - Cut-throat defence - Whether separate trials should have been ordered
LEGISLATION CITED:	Criminal Appeal Act 1912 Evidence Act 1995
CASES CITED:	Fernando (1999) NSWCCA 66 Gilbert v The Queen (2000) 201 CLR 414 Ignjatic (1993) 68 A Crim R 333 Lockyer (1996) 89 A Crim R 457 R v Middis (unreported) NSWCCA 27 March 1991 R v Birks (1990) 19 NSWLR 677 R v Collie (1991) 56 SASR 302 R v Georgiou (1999) NSWCCA 125 R v Lock (1997) 91 A Crim R 356 R v Patsalis and Spathis (1999) 107 A Crim R 432 Spratt (1982) 8 A Crim R 351 Webb and Hay v The Queen (1994) 181 CLR 41
PARTIES :	Appellant - Shane Antoni SYMSS Respondent - Crown
FILE NUMBER(S):	CCA 60305/01
COUNSEL:	Appellant - In person Crown - W G Dawe QC
SOLICITORS:	Appellant - In person Crown - S E O'Connor

LOWER COURTJURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70212/00
LOWER COURT JUDICIAL OFFICER :	Howie J