The Queen v Syrch and Burns

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The Queen v Syrch and Burns [2006] NTCCA 20

PARTIES:THE QUEEN

v

SYRCH, Diane Elise

and

BURNS, Jeramiah Nicholas James

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NOS:CA 8 of 2006 (20423420)

CA 9 of 2006 (20423152)

DELIVERED:  5 October 2006

HEARING DATES:  13 September 2006

JUDGMENT OF:  MARTIN (BR) CJ, SOUTHWOOD J and MARTIN AJ

APPEAL FROM:  Northern Territory Supreme Court, 11 May 2006, SCC 20423420 and 20423152

CATCHWORDS:

CRIMINAL LAW - appeal – Crown appeal against sentence – manslaughter – sentencing process attended by error – conduct after killing was an aggravating circumstance – sentences within the proper range of the sentencing discretion – appeals dismissed.

Criminal Code (NT), s 305(4)

R v Austin (1985) 121 LSJS 181; R v Teremoana (1990) 54 SASR 30; R v Garforth, unreported NSWCCA, 23 May 1994; R v D [1996] 1 Qd R 363; DPP v England [1999] 2 VR 258; Knight v Regina [2006] NSWCCA 292, applied.
The Queen v De Simoni (1981) 147 CLR 383; The Queen v Riley [2006] NTCCA 10, followed.

REPRESENTATION:

Counsel:

Appellant:R Coates & E Armitage

First Respondent:  J Lawrence

Second Respondent  J Tippett QC

Solicitors:

Appellant:Office of the Director of Public Prosecutions

First Respondent:  Halfpennys Lawyers

Second Respondent:  Northern Territory Legal Aid Commission

Judgment category classification:    A

Judgment ID Number:  Mar0621

Number of pages:  38

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Syrch and Burns [2006] NTCCA 20

Nos. CA 8 of 2006 (20423420), CA 9 of 2006 (20423152)

BETWEEN:

THE QUEEN

Appellant

AND:

SYRCH, Diane Elise

First Respondent

and

BURNS, Jeramiah Nicholas James
  Second Respondent

CORAM:     MARTIN (BR) CJ, SOUTHWOOD J and MARTIN AJ

REASONS FOR JUDGMENT

(Delivered 5 October 2006)

Martin (BR) CJ:

Introduction

  1. On 28 July 2004 at Darwin Mr Shane Patrick Thomas murdered Mr Marshall Haritos.  The respondents, Ms Diane Syrch and Mr Jeramiah Burns, were implicated in the killing and pleaded guilty to manslaughter.

  2. On 11 May 2006 the learned sentencing Judge sentenced Mr Thomas to imprisonment for life and fixed a non-parole period of 20 years.  His Honour sentenced Mr Burns to imprisonment for 10 years and fixed a non-parole period of five years.  A sentence of four years and six months was imposed on Ms Syrch with a non-parole period of two years and six months.

  3. The Director of Public Prosecutions appeals against the sentences imposed upon Mr Burns and Ms Syrch on the basis that the sentencing process was attended by an error of principle.  In the case of Mr Burns the Crown acknowledged that even if the Judge erred, this Court could take the view that the sentence is within the proper range of the sentencing discretion and decline to interfere.  As to Ms Syrch, the Crown contended that, independently of the error, the sentence is manifestly inadequate. 

    Facts

  4. In order to understand the…

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Details
Case
[2006] NTCCA 20
Decision Date

CaseChat Overview and Summary

The Director of Public Prosecutions appealed against the sentences imposed on Mr Burns and Ms Syrch for manslaughter, alleging errors in the sentencing process. The Crown contended that while the sentence for Mr Burns might be within the proper range of discretion, the sentence for Ms Syrch was manifestly inadequate. The case involved the killing of Marshal Nicholas John Haritos, who was in a volatile relationship with Ms Syrch. Ms Syrch had a history of friendship with Mr Thomas, who resented the deceased's treatment of her. Following an argument and physical altercation between Ms Syrch and the deceased, Mr Thomas, accompanied by Mr Burns, went to the deceased's unit.

The legal issues before the court were whether the sentencing process for the respondents was attended by an error of principle, and specifically, whether the conduct of the respondents after the killing constituted an aggravating circumstance that should have been considered in sentencing. The court was required to determine if the sentences imposed were within the proper exercise of the sentencing discretion, particularly in light of the Crown's submissions regarding manifest inadequacy in Ms Syrch's case.

The court considered the extensive facts surrounding the killing and the subsequent actions of the respondents, including the dismemberment and disposal of the deceased's body, and the attempts to conceal the crime. It was noted that conduct subsequent to a crime can be an aggravating factor in sentencing, provided it is not already an element of the offence for which the offender has been convicted. The court applied principles from various cases concerning sentencing discretion and the consideration of post-offence conduct. Ultimately, the court found that while the sentencing process may have had some arguable flaws, the sentences imposed on both Mr Burns and Ms Syrch were within the proper range of the sentencing discretion.

The appeals by the Director of Public Prosecutions were dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Director of Public Prosecutions appeals against the sentences imposed upon Mr Burns and Ms Syrch on the basis that the sentencing process was attended by an error of principle. In the case of Mr Burns the Crown acknowledged that even if the Judge erred, this Court could take the view that the sentence is within the proper range of the sentencing discretion and decline to interfere. As to Ms Syrch, the Crown contended that, independently of the error, the sentence is manifestly inadequate. Facts In order to understand the grounds of appeal and the roles of the respondents in the killing of the deceased, it is necessary to set out the facts in detail. Rather than endeavour to summarise the facts, I set out below the Crown facts presented to the Judge which provided the basis of each of the sentences imposed:“Marshal Nicholas John Haritos, hereinafter referred to as ‘the deceased’, was born on 21 June 1978. He was aged 27 years at the time of his death.For some ten months prior to his death, the deceased had been in an on/off relationship with Diane Elise Syrch whose date of birth is 1 November 1985. They stayed together on occasions whilst Mr Haritos was living in rented accommodation in Fannie Bay in late 2003. Ms Syrch moved out on 13 December 2003 and left for Queensland the following day. The deceased followed her there and they spent several weeks together in Noosa in January 2004. The deceased returned to Darwin in February 2004 and Ms Syrch returned to Darwin on 21 February 2004.In late May/early June of 2004, Ms Syrch moved into unit 17 at 16 MacKillop Street, Parap which will be referred to as ‘the unit’. Unit 17 is situated on the third level of the complex. Access is by stairs only. Vehicular access to the unit complex requires a remote controller to open the sliding gate. At that time, Ms Syrch was employed as a waitress at the Top End Hotel in the city. Syrch and the deceased were not living in a committed relationship. They were each seeing other people during this period.The accused, Shane Patrick Thomas, was aged 27 years at the time of the deceased’s death, his date of birth being 4 May 1977. Thomas, a qualified boilermaker, was employed in mine maintenance around the Territory on a fly in/fly out basis. Just prior to 28 July 2004, he resided at 15 Muckaninnie Court, Palmerston. His belongings were also stored at that address.On 28 July 2004, he happened to be working in Darwin doing a job at the Trade Development Zone. In about 2002, Syrch was in a girlfriend/boyfriend relationship with Thomas for some six months to a year. She lived with him for a time on his block at Humpty Doo. When that relationship ended, Thomas and Syrch remained good friends. He cared for her and had promised to Syrch’s mother that he would look after her. Whenever Thomas was in town he would ring her or look her up.Thomas first met the deceased after the deceased and Syrch began seeing each other. There was some animosity between the two men. Syrch would sometimes complain to Thomas about relationship difficulties, arguments and fights that had occurred between her and the deceased. Thomas resented the way the deceased treated Syrch. The deceased in turn resented the fact that Syrch associated with Thomas.Thomas says that on several occasions he overheard telephone conversations between Syrch and the deceased during which there was an unpleasant exchange of views between Syrch and the deceased, resulting in the deceased making threats against Thomas which subsequently came to nothing.On the weekend prior to the deceased’s death, that is Saturday 24 and Sunday 25 July 2005, the deceased and Syrch were seen socializing. They attended a dinner at a restaurant with some friends on the Saturday night and the following day, they visited the deceased’s mother and sister and had lunch with them. On Sunday night, they had dinner with the deceased’s father at Ludmilla.On each occasion, they were observed to be happy together and very affectionate towards each other. On the evening of Tuesday 27 July 2004, the deceased spent the night at Syrch’s unit with her. She left work early on the morning of 28 July after having an argument with the deceased. As she was leaving the unit the deceased pushed her and threw eggs at her vehicle. She was angry and upset.Syrch worked three split shifts on this day from 6 am to 9 am, from 11.30 am to 2.30 pm and from 5 pm to 9 pm. She returned to her unit after the first shift and the deceased was not home. She returned to work for her second shift. During this shift the accused, Thomas, went to Lizards Bar at the Top End Hotel and spoke with Syrch. He had lunch there. Thomas had been trying to ring Syrch on her mobile phone but wasn’t able to get through. He inquired as to why. She told him that about a week and a half earlier, the deceased had smashed her phone. She also told him that the deceased had broken her car window at the same time. The damage to the car was subsequently confirmed to have occurred by police during their investigations.Thomas became angry and told Syrch that he wanted to catch up with the deceased. After this shift at Thomas’ suggestion, Thomas and Syrch drove back to Syrch’s unit at Parap. Thomas had not been there before and wanted to see where she lived. When they arrived at the unit complex, Syrch noticed the presence of a Holden Rodeo utility which the deceased had been driving but was in fact owned by Tony Simmons, a family friend. She informed Thomas of that fact. They entered the unit and found the deceased asleep in bed. She said, ‘Let’s go’ and they left.Having left the unit and while standing downstairs, Thomas observed that now would be a perfect opportunity to give Marshall a touch-up. She did not lock the unit. They then drove to shed 24, 12 Charlton Court, Woolner, hereinafter referred to as ‘the shed’, the residence of a mutual friend, Jeramiah Nicholas James Burns.Thomas had known Burns for about five years and had, on occasions, stayed at the shed. Jeramiah Burns was born on 27 November 1979. He was aged 23 years and 8 months at the time of the offence. He had lived at the shed for almost a year. He shared the shed with a workmate, Paul Dobbe. He worked in the building industry doing contract work in Aboriginal communities. Burns met Syrch when they both attended the Taminmin High School. He met the deceased through Syrch sometime in 2004.At the shed, Thomas and Syrch spoke further about the deceased and his conduct towards Syrch, including the damage which he had caused to her car window and mobile telephone. There was a discussion about what would happen. Thomas said he was going to go back to the unit to give the deceased a touch-up when she was at work. Syrch replied to the effect, ‘Okay, just as long as it does not come back on me’. She understood that Thomas may have been seeking some form of approval from her. She described this conversation to police as serious.She said she had a fair idea of what was going to happen, that Haritos was to receive a bashing, but that she did not know how or when. She gave Thomas the key to the MacKillop Street unit as well as a remote control to open the gate to the unit complex. Burns was not present during any of these conversations and he did not take part in any preliminary statements between Thomas and Syrch.Syrch then left the shed and went to work. Syrch saw no weapons at any stage nor was the use of weapons discussed. By her plea, Syrch acknowledges she was a party to the common purpose of assaulting the deceased and that she foresaw the death of the deceased as a possible consequence of Thomas’ assault upon the deceased.Thomas then took from Burns’ bedroom a black metal baseball bat and I now tender, your Honour, the baseball bat.HIS HONOUR: It’s by consent, I take it, and I will take it everything from here on is by consent unless I hear otherwise. That will be exhibit P2.EXHIBIT P2 Baseball bat.MR KARCZEWSKI: The bat which belonged to Burns, was engraved with the words ‘Happy 21st Stud from all the crew 2002’. He also took with him a boning knife. Burns was not present when Thomas made these preparations. Thomas had earlier contacted Burns on his telephone and asked him to return to the shed to help him with the job. When Burns arrived back at the shed, Thomas asked him to give him a hand in giving Marshall a touch-up.He told Burns that the deceased had assaulted Syrch and that he intended to teach the deceased a lesson. He asked Burns to go with him to act as backup. Burns told police he understood that to mean they were going to beat him up. Burns agreed. Thomas and Burns then left the shed and drove to Syrch’s unit. Burns told police he took with him a scythe-shaped metal implement which he described as a brewery spanner. … And that was to threaten the deceased. As Burns got in the car with the brewery spanner, Thomas told him, ‘We won’t be using that’. Burns then put it under the seat in the car. Thomas told Burns: ‘I’ve got your back’. Burns replied: ‘Okay’. Burns did not know Thomas had the knife with him. Burns did not take the brewery spanner with him to the unit. It remained in Thomas’ vehicle.Syrch was not aware that Thomas would seek the assistance of Burns. Thomas and Burns parked inside the unit complex. As they got out of the car, Thomas passed Burns the baseball bat and asked Burns to carry it for him. Burns secreted the bat up his shirt and in his shorts. Burns was not aware that Thomas was armed. Thomas opened the door with the keys supplied by Syrch. They entered the unit. Thomas took the bar from Burns.Thomas then entered the bedroom where the deceased was asleep on a bed. He was followed by Burns. Thomas woke the deceased up and said: ‘Oy, Marshall. You’re not untouchable now’. Holding the bat in two hands, Thomas then hit the deceased about the head with the baseball bat a number of times. The blows were delivered with considerable force.Thomas then handed the bat to Burns and told him to hit the deceased if he tried to get up. At that point the deceased sat up a bit. Burns took a swing at the deceased with the bat. He told police he might have hit the bed-head. A subsequent examination of the bed-head disclosed the presence of a black dented mark on it.…Burns hesitated before he delivered one hard blow to the deceased’s head. After Burns hit the deceased, the deceased continued to move about on the bed. Thomas then produced the knife he had secreted on his person and which he had not disclosed to Burns and went over to the bed where the deceased was and stabbed the deceased once in the right side of the chest in the lung. It was when Burns produced the knife – sorry – when Thomas produced the knife that Burns realised the matter was going to go a lot further than anticipated. They left the bedroom shortly afterwards. Thomas noticed the deceased was still moving and he re-entered the bedroom and stabbed the deceased again in the left side of the chest in the heart. Thomas then held the deceased’s hand until he died. Thomas confirmed that Haritos was dead by checking his pulse. The stabbing caused Burns to go into shock and he subsequently told police that this affected his recollection of events and subsequent conversations.By his plea of guilty to manslaughter, Burns acknowledged that he acted in concert with Thomas in the assault of the deceased and that he foresaw the death of the deceased as a possible consequence of the joint assault. Further, by accepting that plea, the Crown concedes that Burns was not a party to the use of the knife. Jeramiah Burns acknowledges by his plea of guilty that he is guilty of manslaughter, as he engaged in an assault upon the deceased in the company of Thomas, but that at no time did he personally intend to cause death or grievous harm to the deceased. The prosecution accepts that Burns did not take part in the stabbing of the deceased and that the use of the knife by Thomas was entirely unexpected by Burns.Whilst it is not possible for the Crown to say with precision what injuries were the immediate cause of the deceased’s death, the supervening stabbing appears more likely to be so.Thomas and Burns then left the unit and drove back to the shed in Thomas’ work vehicle. Thomas decided the best thing to do was to get rid of the body and the evidence. Thomas left Burns at the shed and returned to collect him later that night. In the meantime, Thomas went to 15 Muckaninnie Court, Palmerston where he collected two suitcases. When he returned to the shed, he collected some orange plastic sheeting and wrapped in it some knives from the kitchen and a tomahawk. One of the visitors at the shed asked Thomas what the plastic was for. He said words to the effect that he was going to get a quarter of a cow. Although Burns was at the shed, he did not take part in those preparations and was not present during that conversation.After picking Burns up again, the two men returned to the unit. Thomas spread out the plastic sheeting and both men pulled the deceased’s body onto the plastic. They then dragged the deceased into the bathroom where Thomas dismembered the body, removing his arms, legs and head from the torso. Burns did not take part in that process which had the effect of making him ill. In the meantime, Burns set about cleaning the bedroom of blood and collecting the bloodstained bedding from the bed. The bedding was placed in the garbags bags which Burns located in the kitchen. Thomas then placed the deceased’s body parts in the garbags bags which they packed into two suitcases. Thomas and Burns then carried the suitcases downstairs and put into the back of the deceased’s vehicle, the Holden Rodeo utility which was parked in the unit complex carpark.Thomas then drove the deceased’s vehicle to bushland at the back of Howard Springs off Girraween Road. Burns followed driving Thomas’ work vehicle. Once there, Thomas and Burns took the suitcases off the vehicle and covered them with foliage. The deceased’s vehicle was then driven by Thomas to another nearby location and set alight by him. Both men then drove back into the city in Thomas’ vehicle.In a second and subsequent trip that night, Thomas and Burns collected the mattress and sheets, the deceased’s clothing and material used to clean the unit and loaded them in Thomas’ work vehicle. Thomas then drove Burns back to the shed, dropped him off and then continued on alone to an area of bush near the Elizabeth River Bridge near Palmerston where the various items, including the soiled clothing worn by both men that night, were dumped and set alight.Both men had got blood on their bodies and clothing. Thomas asked Burns for his clothing and Burns did so. Later Thomas burnt their clothing. The men also showered. When Thomas returned to the shed later that night, Syrch was there. She asked Thomas what was going on, what had happened. He replied, ‘It’s fixed’. She said, ‘What do you mean’. He replied, ‘He’s gone’. Syrch asked Thomas where Haritos was. He replied, ‘In the bush at the back of Howard Springs. The car has been burnt and the body has been buried’. She asked him, ‘What am I supposed to do now?’ Thomas replied, ‘Get on with your life. The problem’s gone’.She asked him what she should do if she was questioned by the police. He told her she had to be strong and to say she knew nothing. He told her not to go home for a week. He told her that the mattress was gone. He suggested that she should probably call Marshall’s father. She did so the following day. She asked Mr Haritos Senior if he had seen Marshall. He replied that he thought his son was with her. She replied, ‘That’s bad then’. They agreed to let each other know if they saw Marshall.The family of the deceased made extensive inquiries as to Marshall’s whereabouts without success. Several members of the Haritos family spoke to Syrch regarding her knowledge of his whereabouts. On 30 July 2004, Syrch told the deceased’s sister, Tiffany, that she and the deceased had had a fight after she told the deceased that she was moving to Cairns. She said she last saw the deceased in the morning when she went to work.On Sunday, 1 August, the deceased’s mother had a lengthy conversation with Syrch at Lake Alexander. Syrch told her that she had not seen or heard from the deceased, that she had no idea where he was and that she was worried about him. She said she was no longer going to Cairns as she had been offered a promotion at work.Members of the deceased’s family made a missing person report to police on 1 August 2004. On Saturday 31 July 2004, Thomas and Burns, at Thomas’ request, attended at Le Cornu furniture store in Snell Street, Stuart Park and purchased a replacement mattress for the bed. Some days later, the mattress was taken to the unit by Thomas and another person. Burns told police he had no recollection of taking part in that activity.At about this time, Thomas also attended at Spotlight department store and purchased a doona and pillows which he then gave to Syrch. On or about Saturday 31 July 2004, Thomas asked Burns if he could assist in further disposing of the deceased’s body. Burns refused. Thomas stated that was okay because at least he would not know where the deceased’s was.Thomas returned to where he had secreted the body, selected a burial site, dug a hole about one and a half metres deep and buried the body parts, except for the head. He buried the head separately in a nearby termite mound. … He then drove to another site where he burnt the suitcases and the clothes he was wearing. Thomas later told Burns that ‘they’ll never find him’.A day or so after Thomas had burnt the suitcases, he returned to the site to get rid of any charring. The baseball bat was not disposed of immediately. Thomas initially secreted it under a log in bushland near the Elizabeth River Bridge near Palmerston. He later retrieved it and took it to Muckaninnie Court where it was seen by several witnesses who noticed that the bat had a dent in it which previously had not been there.Later still, Thomas hit the bat under a log in bushland off the Arnhem Highway near Humpty Doo. Thomas says he melted down the knife he had used, using an oxyacetylene torch. Burns did not take part in any of those activities.Syrch travelled to Queensland on 7 September 2004. In the meantime she stayed with friends for several days and then resumed residence at the unit. Before she left, she spoke to Thomas over the phone. She asked him what she should do if she got spoken to. He replied, ‘Tell them you do not know anything. Don’t stress. They have nothing on us’.During the course of their combined investigations, the Northern Territory Police and Queensland Police spoke with Diane Syrch on numerous occasions. Syrch was spoken to by Northern Territory Police on 9 August. She told members Gavin and Henrys that she last saw the deceased asleep on the morning of 28 July 2004, that she had no idea where he might be and that she could not assist police with suggestions as to where he might be.She reported this conversation to Thomas when they next spoke. He told her to keep to her story and to remain strong. Syrch reiterated her lack of knowledge to member Gavin on 16 August and to member Milner on 10 September 2004 when further inquiries were made of her. Syrch made witness statements to Queensland detectives on 29 September, 6 and 7 October 2004. She was formally interviewed by Queensland detectives on 8 October 2004 and by Northern Territory detectives on 13 October.The early statements did not disclose Syrch’s involvement in the offence. In the first statement, she said she did not know where Marshall was. In each successive statement, she disclosed more information than she had previously. In her second and third statements, she disclosed her conversations with Thomas before and after the killing. As a result of this information, on 7 October 2004 Northern Territory Police conducted an aerial search of bushland near Girraween Road and located the burnt-out remains of the deceased’s vehicle.Ultimately in the interview on 13 October 2004, Syrch admitted to her participation in the offence. She told police she was angry and hurt. Syrch wanted to be left alone and she wanted the deceased out of her unit. She wanted to end the relationship. At the conclusion of this interview, Syrch was arrested for the offence of murder and appeared before a Queensland Justice who ordered her returned to the Northern Territory.Thomas flew out of the Territory to Sydney on 29 September 2004 together with his then girlfriend, Cally Harris, a geologist whom he had met at the Granites Camp on the Tanami on 10 August 2004. The plan was that he would spend a few days with her at her stepfather’s residence. Harris was aware from previous conversation with Thomas of the earlier relationship Thomas had had with Syrch, of the unsatisfactory nature of the subsequent relation between Haritos and Syrch and of the fact that Haritos had gone missing.She had overheard Thomas have conversations with other people regarding the deceased which puzzled her. While in Sydney, Thomas made a number of comments to Harris which made her frightened. On 30 September 2004 as they were driving in the city, Harris told Thomas that she wanted to know the truth about Marshall Haritos. He told her that Marshall was dead and that he and Thomas had cut him up into six pieces. She became more frightened and avoided any further conversation about the matter.After they returned to Darwin on 3 October 2004 – I beg your pardon – they both returned to Darwin on 3 October 2004. On 5 October, Harris flew out to the Tanami. They spoke to each other over the phone several times after that, but not about the disappearance of Marshall Haritos. She heard through a mutual friend that Thomas had been arrested by police on 10 October. She made a statement to police on 14 October 2004.Thomas was interviewed twice by Northern Territory Police at Pine Creek on Sunday 10 October 2004. He was working there at the time. He made no admissions to police. In both interviews, he said he did not know where Marshall was. He said that Syrch had complained to him from time to time about the manner in which the deceased treated her. Thomas said he first heard that Marshall was missing from Syrch who rang him to tell him she hadn’t seen Marshall for three or four days. He denied having anything to do with the death of Marshall Haritos.At the end of the second interview Thomas was arrested for the murder of Marshall Haritos. Thomas appeared in court on 30 October 2004 and was remanded in custody.On Saturday 16 October 2004, Thomas informed prison authorities that he wished to speak with police. Detectives Ordelman and Cummins attended the Darwin Correctional Centre. In the conversation that followed, Thomas said that he wished to show detectives the location of a number of items, including that of the deceased’s body and that he wanted to speak to the deceased’s father. Arrangements were made for Thomas to be handed into police custody.Later that afternoon, Thomas accompanied police and directed them to an area of bush off Girraween Road. The search for the body and head of the deceased was unsuccessful. Thomas then directed police to a location off the Arnhem Highway where police located the baseball bat used in the killing. The bat was hidden under a fallen tree. A subsequent examination of the bat revealed that an attempt had been made to grind off the engraved words. The engraved words however remained visible under close examination.Thomas then directed police to a location near the Elizabeth River bridge at Palmerston where police located the remains of a burnt mattress. He then showed police a further location nearby where he said the shorts of the deceased could be located. He kicked the top off a termite mound revealing the shorts. He told police that when he returned to the site a week or so after the killing to clean up any remnants, he saw that the deceased’s shorts hadn’t burnt so he secreted them in the ant hill.Thomas accompanied police back to the Darwin Police Station where he took part in an electronically-recorded interview where he admitted his part in the killing of the deceased. He agreed to continue to assist police to locate the remains of the deceased. The following day Thomas returned with police to the same area of bush off Girraween Road to continue searching for the remains of the deceased.That morning police officers involved in the search in fact found the body and head of the deceased in two separate locations. The areas where the remains were found was no more than 100 metres from the area where the search had concentrated the previous day.Burns was spoken to by police on Sunday 10 August 2004. After initially denying any knowledge of the offence, he made admissions and was arrested for the offence of murder. On Monday 11 October 2004, he directed and accompanied police officers to the site where the burnt-out remains of the Holden Rodeo utility were found and assisted police in their search for the body and other evidence. Those efforts were unsuccessful. Burns continued to assist police by agreeing to engage in a further detailed record of interview on Tuesday 12 October 2004.A post-mortem examination of the remains was conducted on 18 October 2004 by Dr Woodford with the assistance of forensic scientist Daymon Steptoe who reconstructed the skull. Dr Woodford, a specialist in forensic medicine and pathology, noted that there were extensive comminute fractures to the skull bowl, face and facial bones as well as fractures to both clavicles. Dr Woodford identified 14 fractures to the face and skull and they are more comprehensively described in the doctor’s report which in the facts I note were attached. I don’t propose tendering that, your Honour. I think the entries like to speak for themselves.Several incised injuries were identified, leaving aside injuries associated with the disarticulation. There were two such injuries of note. Firstly, on the fifth right rib there were two adjacent shallow fine vertically orientated linear scores, each two millimetres in greatest dimension. Dr Woodford opined that these injuries could represent evidence of sharp force penetrating injury to the right side of the chest.Secondly, the wound to the ninth thoracic vertebrae measured five millimetres in length and was approximately three millimetres in depth. Dr Woodford opined that this injury was consistent with a stab injury. Dr Woodford expressed the opinion that (inaudible) as a result of such penetrating chest wound, would include intercostal vessels, lung and large thoracic veins.Dr Woodford expressed the opinion that the multiple skull fractures resulted from blunt force trauma to the head with a minimum of three blows, three distinct blows having to be delivered to result in the fracture pattern seen. These blows appear to have been delivered over the vertex, right side of the head extending from the right mastoid temporal region to the right side of the mandible and the left side of the head in the region of the left mastoid temporal region.The calculation of the number of actual number of blows delivered is complicated by the fact that some may have been delivered over a previously injured area, some may not have caused fracturing and some may have been relatively glancing in nature. The deceased was alive at the time of the infliction of some or all of these blows, the possible effects would include impairment of conscious state, inter-cranial haemorrhage and brain parenchymal injury.…Diane Syrch has been in custody since the date of her arrest in Noosa, Queensland on 13 October 2004. Jeramiah Burns has been in custody since the date of his apprehension near the Arnhem Highway turn-off on 10 October 2004 and their sentences should be backdated accordingly.”Conduct subsequent to the crime

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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