Tiwary v The Queen - [2008] NSWCCA 319

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Tiwary v R [2008] NSWCCA 319

HEARING DATE(S): 16 October 2008

JUDGMENT DATE:
17 December 2008

JUDGMENT OF: McClellan CJ at CL at 1; Blanch J at 149; Hislop J at 150

DECISION: 1. Appeal upheld
2. Conviction quashed
3. New trial ordered.

CATCHWORDS: CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - misdirection and non-direction - presentation of defence case and Crown case and review of evidence - circumstantial case - consciousness of guilt - Crown prosecutor's address on lies as consciousness of guilt - whether trial judge adequately directed jury on consciousness of guilt - whether trial judge adequately directed jury on evidence of blood on appellant's feet - whether trial miscarried - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - unreasonable or insupportable verdict - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - application to reduce sentence - not appropriate to consider sentencing issues as new trial ordered

CATEGORY: Principal judgment

CASES CITED: Edwards v R (1993) 178 CLR 193
Shepherd v R (1991) 170 CLR 573

PARTIES: Ram Puneet Tiwary (Appellant)
The Crown

FILE NUMBER(S): CCA 2005/3786

COUNSEL: T A Game SC (Appellant)
L Babb SC/M Rabsch (Crown Advocate)

SOLICITORS: Giddy & Crittenden (Appellant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2005/1899

LOWER COURT JUDICIAL OFFICER: Adams J

LOWER COURT DATE OF DECISION: 6 November 2006

2005/3786

McCLELLAN CJ at CL
BLANCH J
HISLOP J
WEDNESDAY 17 DECEMBER 2008

TIWARY, Ram Puneet v R

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted following trial of two counts of murder. The victims were his flatmates, Chow Lyang Tay and Poh Chuan Tan. Their deaths occurred on 15 September 2003 following a violent attack involving a blunt instrument (possibly a baseball bat) and a knife in the case of Tay and a baseball bat and knife in the case of Tan.

2 The appellant was sentenced to a term of imprisonment of 25 years for the murder of Tay and to life imprisonment for the murder of Tan. He appeals against his conviction and seeks leave to appeal against his sentence.

3 There are three grounds of appeal against conviction. The first two grounds are directed to the judge’s directions and issues relating to lies and blood stains. The third ground challenges the conviction as being unreasonable or not supported by the evidence.

Some preliminary facts

4 The appellant and the two deceased were students at the University of New South Wales. They lived together, each in a separate bedroom, in premises a short distance from the Kensington campus. The appellant was studying engineering on a scholarship from the Singapore Army of which he was a member. He was a poor student and had sought permission to withdraw from the course. If permission to withdraw was granted he would have to refund to the Army the University fees which had been paid on his behalf.

5 The premises in which they lived were a duplex. The bottom flat belonged to the landlords, Mr and Mrs Lichaa. There were stairs to the front door of the upper flat at the southern end of the building. On the left (the western side) of the flat from the front door was Tan’s bedroom then the bathroom then the appellant’s bedroom and then the kitchen. On the right side of the front door was an empty bedroom then Tay’s bedroom and then the lounge room. Across the northern end of the flat was a verandah with stairs leading down to garbage bins and other facilities.

6 There was evidence in the trial that at 2.19 pm on Saturday 13 September 2003 the appellant purchased an aluminium baseball bat from Rebel Sports in the city.

7 On the day of the murders the appellant spoke to his girlfriend by telephone at about 6.30 am and organised to meet her after she had completed an exam later that day. In his record of interview the appellant said that after this call he went back to bed and fell asleep.

8 Tay’s laptop computer was last used at about 10.16 am that morning. Both Tan’s desktop and laptop computers were last used around 12.02 pm.

9 A number of students noticed that Tan (also known as Tony) arrived for his noon lecture that day approximately 15 minutes late. Tay who always came to the same lectures did not attend. The evidence was that Tan appeared dishevelled, distracted and tired. He later cancelled a meeting for an ethics presentation that he and Tay were supposed to attend. There was evidence that Tan had previously said to two friends that he had bought himself a baseball bat for protection. If this was true the bat was never located.

10 A few minutes after the lecture finished Tan left and walked up some stairs to Norton Street adjacent to the University. He was observed getting into a motor car which was facing the wrong way on the street. There were two or three other people in the car. The car left at about 1.50 – 1.55 pm. There was evidence from observers that Tan seemed to be distracted. The police were not able to identify the car or the people within it.

11 It was usual for the landlords to lock the gates around their premises whenever they went out. They were absent at various times during the morning of 15 September 2003, Mr Lichaa returning about 1.45 pm. During the times they were at home they heard nothing unusual, although around 5 minutes after he arrived home Mr Lichaa saw somebody run past the kitchen windows at the back of the house. Mr and Mrs Lichaa gave evidence that they had never seen fighting or arguing between the upstairs tenants.

12 Mr Timothy Cousins lived nearby. He gave evidence that he saw a pale car parked in the laneway near the premises after 1 pm. Around 2.30 pm he heard noises which he had thought originated from 111 Barker Street. The appellant and the victims lived at 109 Barker Street. He said that he also heard a loud hammering noise which went on for about 10-15 seconds. Then someone loudly said “Get fucked.” He said there was then a pause, some voices, and the noise continued.

13 Ms Mejaney Kuo said that she saw a person walking near 109 Barker Street around 2.30 pm. She said that the person was probably in his early thirties, was dark coloured, but not Asian. He appeared to be walking towards a small white car.

The appellant telephones OOO

14 The appellant made a call to OOO using his mobile phone at 2.20 pm. The conversation was recorded. The appellant said:

“Good morning. [sic] I need the police and an ambulance … There’s been a murder, two … there’s been a murder … My, my two, my two friends are lying dead outside … I was asleep and heard this screaming, and I, when I turned my two friends are dead … There’s blood all over, I can’t even tell now … there’s a baseball bat and a knife there … They’re bashed in complete, yes, there’s a knife lying on the ground as well … there’s nobody outside, so I, the back door was opened, I closed the back door and I grabbed the bat, and I came back into my room and I called you … I should have checked [if they are still breathing], I didn’t check, no, I didn’t … I’m outside [my room] now, They’re definitely not breathing … I know CPR as well, but there’s blood, there’s this like, like, there’s blood all over his, his nose, so I don’t even know if I can give him CPR and all.”

15 The appellant left the flat after being told by the OOO operator that ambulance officers had arrived but were waiting for the police before entering the flat. He went down the back stairs and into the street. He appeared to the ambulance officers to be upset and distressed. He was bewildered and had his jumper on inside out. One witness said that he was agitated and breathing heavily.

16 The appellant told Mr Rick Irving that one of his flatmates was lying on the ground covered in blood and frothing at the mouth. He said that the appellant appeared to be distracted by his hands which had smeared blood on them. When he was asked what he had seen the appellant told an ambulance officer, Mr Damian Fleming “I don’t know. I was asleep. I heard a noise. I woke up. I saw lots of blood … I think I saw a knife.”

17 The police arrived and Inspector Leanne McKusker spoke with the appellant. She gave evidence that he appeared to be extremely distressed and said to her “I was asleep. I heard my flatmate [or flatmates] screaming. I ran out of the house”. The appellant told Snr Constable Rodney Jurd that there was a baseball bat and a knife and that he had picked up the bat. He said he had been “up all night and asleep all day. I was woken by a noisy TV.” The Snr Constable reported that the appellant had smudged blood on his hands.

The appellant’s account given to Sgt Woodward

18 Sergeant Winston Woodward also spoke with the appellant and made notes of the conversation. The appellant’s account of the events was consistent with that given to the OOO operator. The sergeant’s notebook records the following:

“Sleeping in room. My girlfriend called morning, but went back to sleep. Woke up to the sound of things falling. Thought somebody dropped something, but went back to sleep. Heard somebody run past. The bedroom door was locked from inside. Person who ran past, I think Tony yelled ‘help’. I didn’t go out. I should have, but didn’t. My room has a damaged fly screen. After heard sound somebody being hit I should have opened door but didn’t. The sound lasted 5 minutes. It was all quiet. Some time after, I opened the door. I noticed the door was slightly ajar. I saw to my right my friend Tony was lying next to the front door. His back was against the wall. I saw baseball bat and knife near him. I picked up the bat and went towards the back entrance and saw my other friend lying there, Tay. Closed back door, locked it and took the bat to my bedroom and went in and locked the door. I called OOO on my mobile and they told me to stay in the room and wait. The lady asked me if I knew CPR. I know, but didn’t try. She said the ambulance people were outside, but they are not coming in until police arrive. I said I don’t see anyone outside, so I went outside with the bat.”

Where blood was detected

19 The appellant showed the police blood on his hands and he then said:

“I saw Tony had froth coming from his mouth and was bleeding from his head. I still had the bat with me. I touched Tony on the neck to see if he was bleeding, there was blood all over the floor, I put my hand near his nose and felt, he was not breathing. I did not want to do anything else. I went to Tony and touched his neck to see if he was breathing and feel a pulse. He wasn’t so I left the house by the back door. I went outside on the street and saw the ambulance, told them what happened.”

20 When the premises were examined no blood was detected on any structure associated with the rear door of the flat or the back stairs. There was nothing to indicate that anyone had walked through the garden or gone over any fences. Tay was found lying on his back surrounded by a large amount of blood staining. The television set in the premises was on.

21 A bloodstain was detected on the lower eastern wall and there was evidence of Tay’s head having been in contact with the wall. There was blood staining around a computer located on a desk which included clotted blood and what was determined to be medium velocity blood impact spatter. This led Detective Elliott, a crime scene examiner, to conclude that there had been an initial assault near the lower eastern wall, then after a short while there was some movement and a secondary assault took place near the computer.

22 On and in front of the lounge were bloodstains, small pieces of glass, glasses frames, and shattered teeth. From the trail of blood staining associated with Tan’s body Detective Elliott concluded that the initial assault on Tan was in the lounge room where he was struck in the face, then moved into the hallway where a further assault took place. Tan was lying on his back with his head beside the front door and facing left towards it. The front door was closed but unlocked. There was a black handled kitchen knife under Tan’s left knee. There was evidence of medium velocity blood staining radiating from Tan’s head and also medium velocity blood staining on the floor around his body, on his clothing and upper feet. Detective Elliott concluded that this blood staining was a result of the impact on Tan’s head from the weapon used. There were three knife wounds to Tan’s neck.

23 Detective Elliott inspected the kitchen sink and the bathroom. He found no signs that they had been used in an attempt to wash or remove blood from the appellant or his clothing. He conducted a presumptive test for blood in the bathroom, obtaining a weak positive on the hot water tap and a strong positive on the hand basin. However, Detective Elliott explained that these tests did not confirm the presence of blood. The substances identified may have been rust or some other material.

24 Detective Elliott examined the clothing the appellant had been wearing when he exited the flat. There were faint stains which tested positive to a presumptive blood test on the front, rear, inside front, and inside right cuff of the appellant’s long sleeved top. These stains were consistent with transfer stains, which could have come from the appellant’s bare skin. There was no blood staining on the top that the detective could relate to the assault. He observed that it is the nature of using a weapon such as a baseball bat with a wide end that it allows blood to be projected in areas away from the bat and the assailant could be somewhat protected due to the shape of the bat. However, he said he would have expected some blood stain spatter on the assailant.

25 Detective Elliott also examined the shorts which the appellant had been wearing. He found a number of stains, three of which were later confirmed to be human blood, and which he said were consistent with medium velocity blood spatter.

26 Blood smears were detected on the appellant’s hands together with blood spots on his feet and ankles. The blood spots ranged in diameter from 1 to 3 mm.

27 Detective Elliott’s opinion, formed from an examination of the appellant’s feet, was that he had received medium velocity blood spatter. He reached this conclusion from an observation of the size of the spots and their spacing. He was of the opinion that the staining on both the appellant’s feet and Tan’s feet was of the same type and that the staining on the appellant’s feet was due to him being Tan’s attacker.

28 When cross-examined Detective Elliott said he would have expected some of Tay’s blood to have been on the baseball bat considering the amount of blood at the scene. However, none of Tay’s blood was detected. Because the blood staining which he observed near Tay’s body appeared to be very directional he believed it possible that there would not have been back spatter on the assailant. He believed that the explanation for the absence of Tay’s blood may be because although present it was not located in the places where he had chosen to swab. He also accepted that it was possible that the bat and knife were not the weapons used on Tay.

29 Sergeant Christopher Clarke was a forensic crime scene investigator who believed that the medium velocity blood spatter seen on the appellant's feet was due either to the delivery of blows with a blunt instrument, or through the victim coughing blood. In cross-examination he said that in relation to the assault on Tay he would have expected blood to be on the weapon. He believed that there was a reasonable likelihood of back spatter on both Tay's and Tan's assailant. He did not believe the blood staining around Tan showed cast-off staining, although there could be some expiration blood staining.

Fingerprints

30 Detective Sergeant Zac Ferkula examined a number of fingerprints taken from the crime scene. The majority belonged to the appellant, Tay and Tan. Five fingerprints remained unidentified after being searched against the database, and one was not suitable for identification purposes. Retired Sergeant Robert Newell examined the knife and the baseball bat for fingerprints but found no prints with sufficient detail to identify any person.

The first ERISP and the walkthrough

31 During the evening of 15 September 2003 Detective Senior Constable Mark Frearson and Sergeant Woodward conducted an ERISP with the appellant, who gave his version of events. The transcript of the ERISP was Exhibit Q.

“A 65: … I actually woke up about 6:00 something, my girlfriend called me ... I had a shower and everything and then I went back to bed. [The second time] I, I don't know when exactly this was but I heard, I heard, like the TV was on loud outside and I, I heard, I thought I heard like something drop, I thought it was nothing because nothing, I didn't hear anything after that, and so I went back to bed, I didn’t even open my door.

A 66: … I woke up like for the third, third time I guess today when I heard what I thought was the sound of some sort of commotion, I was half asleep and the TV was on as well so I had no idea what actually was goin' on, and just about getting out of bed when I heard somebody rush past my door, bump along the thing and, and, and I, I think it was Tony, I think he was, I think he screamed help but I'm not exactly sure. A couple of moments, a while later I, I hear what the, the sound of something metal being hit against something and that went, went on for quite, for, for some time and after that it was just quite [sic]. At that point I, I would, I, I chose not to go out, I chose not to go out, and I locked my room door from the inside and I pulled my old cabinet and barricaded myself inside. When I could find my phone I, for some reason I couldn't find my phone, I found my phone, I called, called triple 0, and the lady, they, she was asking me questions ... there was no more sound from outside, I thought OK, OK, now might be a good time, a good time -

.

A 68: At that point I hadn't seen my friend Tay ‘cause there's, there's like a couch in the living room, the TV was still on and it was real loud, and the couch was there and I saw that the, I saw that the back door was open so I, I thought there might be somebody there so I, so I took the, took, I had the baseball bat, I went, I went back and grabbed the knife and, you know, holding them both I went towards the back, it was, that's when I saw Tay, he was lying behind the couch and was covered in, covered in blood too. And nobody outside near the back so I locked the door ... and went back to my room and the lady on, the emergency operator she, she said, yeah, should like check, check to see if, if they're breathing you know, like try to give them CPR and I went back outside and saw Tony was like, like froth and all this his mouth and, and I checked for his pulse and I tried to shake, shake him, and like there was no response at all. And I went to Tay and did the same thing, there was no response either, he didn't have a pulse.

…

Q 193: Did you work last night or anything or studying last night?

A 193: I was like, what's today Sunday, working, was it Sunday? I was working, yeah, I was working yesterday, I was working till 5:00 pm Cranbrook Carnivale.

…

Q 310: ... So you last saw, at 9:30 last night, or 10 past 9:00 you last saw Tony, around 10 past 9:00?

A 310: Mmm mmm.

Q 311: And then at 9:30 you last saw Tay. How were they when they went to bed, they were fine?

A 311: I went to bed first so I don't know how Tay, Tay was, everybody was OK …

A 312: … I went ‘cause I was tired, working since like, what time did I start work? I started work at halfpast 8:00, so I got up at like 7:00 in the morning.

Q 313: Yes ... did you hear, did you go to sleep straight away?

A 313: Yeah I was really tired ‘cause working the day before as well.

…

Q 316: And you said you woke at 6:00 am.

A 316: 6:20, around 6:00, 6:20.

…

A 399: ... Get up, get out of bed, walk out here, OK, take a piss, something like that, go in the kitchen, make breakfast, go back to my room and then, yeah, after breakfast put my stuff in there, wash it up, went had, brushed my teeth, had a shower, went back in.

…

Q 401: What have you done with [a previous flatmate] Vincent's room since he moved out?

A 401: I had a friend who wanted to move in but then nothing came of it, so right now is the three of us covering for, for, for the rooms.

…

Q 424: OK So you were up for about how long?

A 424: I think about an hour.

A 425: After I went back outside and put my towel out to dry and then I went back.

…

Q 432: How [long] do you think before you went to sleep?

A 432: Half an hour [cf. A 435: About an hour plus].

…

Q 444: And then you told me earlier, at, when I first spoke to you, you told me you heard the sound of something falling.

…

A 445: I heard something fall, I don 't know what, what it was, I heard it fall, and I thought OK, yeah, then got up for a while, then nothing else happened, the TV's on, I thought somebody must have dropped something. I went straight back to bed.

…

Q 451: OK And then you don't know what time it was about then?

A 451: … maybe around 8:00.

…

Q 453: And then you, you say woke up a third time you heard a sound.

…

A 454: OK Lying in bed and I heard this really loud, a real loud, something, like something big had fallen down. I thought what the hell is this? And I heard some metal thing, I thought someone was picking something up, I thought I may as well go and look just in case somebody smashed the TV, but the TV was still on, so I thought OK I got out of bed, I was just, just putting away my stuff, ‘cause all my clothes were on my bed as usual, but after a while hear somebody run past my room, at that point I was just by my wardrobe putting in my contact lenses, and I hear somebody run past my room and I think it was Tony, I think, I think I, I'm pretty sure he shouted for help. I know it's, people ran towards the front entrance end and I heard, I heard the metal sound like a couple of times, I knew something was wrong.

…

A 501: ... if there were two people or three people, I couldn't tell at that point.

…

A 528: [After it was quiet for 5 minutes] Well, I took the cabinet away, pushed it away from the door, I opened the door, like had a quick peak outside and closed it again ...

…

A 535: And I, I look over there [into the living room] but, and I don't see anything over here at this point, I turned right and I see Tony, Tony was like his legs were out in front of him and he was like just slumped against this wall, against this wall here.

…

A 541: ... I went to go in the bed and started looking for my phone. And I found my phone and that's when I called triple O.

…

Q 558: OK. And you saw the knife and the bat from your door?

…

A 559: I don't know how they were lying but I know they were right like beside him.

…

A 596: The lady says ... Do you know if, if they're still, they're still breathing? ... After I spoke with her and I realised everything was quiet outside I took another look, went straight for this and grabbed the knife and the baseball bat ... and, and I just made sure nobody was here and then went back and I locked the [back] door, was locking the door and that's when I found Tay on this side.

…

A 632: ... went up to Tony and when, when I got, when I got to him like went down on my knees and I, I was just like, I think I put the knife down that I had, like the baseball bat's still in my hands, and like I didn't want to face him entirely so I was like sitting this way so I could look down the corridor as well, and I had the baseball bat still in my hands.

A 633: And like I, I, I wanted to check to see if there was a pulse so I put my hand like on his neck to check for his carotid pulse ...

…

A 678: ... There was, there was no pulse ... There was definitely no pulse ...

…

A 680: ... and put my hand up to his, to his nose to see if I could see him breathing because I put my hand on his chest and there was no breathing.

…

A 893: ... I noticed like froth like from I think like, like the blood was falling out of [Tony's] nose and air too and it's just frothed it up, the entire thing there. I didn't, I just noticed really, just really, really almost black red really thick, thick blood there.

32 A walkthrough was also conducted with the appellant during which the following exchange occurred:

…

A: But I was actually leaning down beside him ... That's when I saw the blood sort of spasm ... And blood came out the front.

…

Q: Now, just to clarify, you said that blood came out of his nose. Now, was -

A: It was just, like, it was like froth ... And, and he sort of spasmed ... And that made me take a step back.”

Other people to whom the appellant spoke

33 On the night of 15 September the appellant stayed with his friend Kay Meng David Lee. The appellant told Lee that he had been at home sleeping when he heard a loud noise. He then barricaded himself in his room before waiting for the noise to subside. When he went out to have a look, he saw Tan and Tay lying on the floor outside his room.

34 Lee had never witnessed any arguments between the three flatmates. In July 2003 he had seen a baseball bat in the lounge room of the flat, although he did not know to whom it belonged. In cross-examination Lee said that he had sometimes seen the appellant sleep until the afternoon.

35 On 17 September the appellant told his girlfriend Elvira Metiljevic, “I heard a crash. I can't be bothered getting up. Could hear the TV up loud, it was annoying me, but I was too tired to get up ... I heard a loud crash. Again I didn't think anything of it, I just thought one of the guys dropped something. By that time I was putting my contact lenses on". Elvira asked, "And then did you come out and see them?" and the appellant answered, "Yeah, I checked the place front to back and then called the police". The appellant continued, "[Tay] was on his back and there was so much blood ... he was at the back of the house and he looked like he had been on the computer. Tony was against the wall and one of his eyes was swollen shut, he had a lot of blood. He looked like he was trying to go out the front door and trying to escape or something^".

36 He also told a number of people, including Richard Milne, Julia Mathams, and Sarah Donnelly, that he was not at home at the time of the murders but had come home to find his flatmates dead.

Evidence in relation to the rent and other money matters

37 The prosecution suggested at the trial that a motive for the appellant to kill his flatmates was an argument over unpaid rent. The appellant was in arrears at the time as to his portion of the rent for the premises. On 16 April 2004 the appellant spoke with Detective Frearson, asking for some of the property seized by police to be returned.

38 One of the items requested was “Item 31”, labelled as “1 piece of paper with figures”, which had been found in the appellant's bedroom. This was a handwritten note relating to rent as follows:

Andrew
Bond	$500
Rent	$543 (July)
Rent	$543 (Aug)
$1,586 + $4 (toilet paper = $1,590
Ram
Previous	$4,445
Rent	$543 (Aug)
Bills (incl toilet paper)	$66
$5,054

39 A number of budget statements were taken from Tay's computer, which included a computation consistent with “Item 31.”

40 In cross-examination Detective Frearson accepted that the appellant's request for items was for items relating to his university studies, and the appellant was relying on the police property seizure form to identify those items. He said that the appellant had been very co-operative during the police investigation.

41 The appellant's academic transcript and student debt records were tendered. They showed that he had failed a number of subjects which he then had had to retake. His student fee for semester 2 in 2003 was $7,271.

42 The appellant's bank account details were also tendered which showed that as at 5 September 2003 he had $7.26 in his account before a salary deposit on 10 September from a security company the appellant had begun to work for. They also showed that the amount of money deducted from the account in August would not cover the rent payment.

The second ERISP and evidence about “Andrew” and the rent

43 The appellant was arrested on 28 May 2004.

44 On that day he participated in a further ERISP with Detective Frearson and the officer in charge, Detective Sergeant Paul Thierjung. The appellant was asked, amongst other matters, about "Andrew" who had been suggested as a possible occupant of the vacant fourth bedroom in the premises and whose name was on the note referred to in [38] above. The relevant portion of the transcript is as follows:

“A 149: That room was empty since our last house mate, Vincent, he left.

A 150: And since then we were not really actively seeking but we were asking around if you know someone who would like to use it or this Andrew name, I don't know anyone by the name of Andrew, as far as I'm, as far as I can recall, don't know anybody by the name of Andrew.

A 151: But there was a friend who, one of my friends who initially said, I wouldn't mind moving in, but then he moved in with his sister ...

A 171: I have no idea who Andrew is at all. I didn't know who Andrew was till, when you called me the other day and asked me ...

…

Q 341: ... What was the arrangement when it came to paying your rent ... ?

A 341: I think Tay, yeah, Tay was the one was, was paying it, like ‘cause he had the, he was staying from before, they have an account with Ray White, I think was handling the rent to the rental thing, so we used to pay him [in cash] and he used to pay whoever, however he use to pay.

…

Q 354: OK. So tell me if I'm wrong but you're saying that, depending on when, when the rent was due, that you would have been paid up to date at least to the period prior?

A 354: Yeah, that's right.

Q 361: OK ... we've been told that Tay approached you at least in the weeks leading up to this death about becoming involved in the payment of the rent and about taking over the payment of the rent. That responsibility.

Q 362: And that he spoke to you on Saturday 13th, two days before his death and had a discussion with you at the unit about whether you had paid the rent as had previously been arranged. What do you have to say about that?

A 362: There was no issue with rent but what was the first thing you said, he wanted to hand over the thing. That was true because he was going to finish his course at the end of the year ... I'd be the one left over so I would have the new card ...

45 In the course of the interview the appellant said that he bought the baseball bat because some friends had one and it was fun to play with. He said that he did not buy it because he had had an argument with Tay or Tan. He said that he told people he had not been in the house at the time because he had barricaded himself in his room as he had been scared. He was embarrassed because people who knew he was in the army had certain expectations of him. The ERISP continued:

“Q 707 ... When you, when you're talking here about spasming and the blood coming out from the front, can you describe that for me ...

A 707: Well, I came up right next to him and he, he, he was real bloody and he was lying with, like, that's the door -

A 708: ... He was lying with his legs out and when I, I was, like, checking to see if his [sic] breathing or something like that, and as I looked at him, he went like, like (vocally demonstrated) and like blood came out and his body moved.

…

A 710: ... I'm, like, kneeling down beside him and I, I think I was trying to check for his pulse or something like that.

A 711: ... I don't exactly know where [the blood] came out from but I just know he went, and, like, for a second I thought he was alive, but he wasn't.

A 712: ... I just knelt in front of him and he just ... like (vocally demonstrated). I think it must've come from the mouth or something, but, just, I can't, just, like this coughing sound and, and his hand, like, moved, and, yeah, and after that there was no more movement.”

46 It was put to the appellant that he was the one who struck and stabbed Tay and Tan. He denied all of the allegations.

The prosecution’s scientific evidence

47 Virginia Friedman, a Division of Analytical Laboratories forensic biologist, tested a number of swabs and items taken from the flat by Detective Elliott for DNA. The swab from the bathroom hand basin had a strong positive for a presumptive blood test, and there was a mix of DNA from Tay, Tan and the appellant. In relation to the swabs taken from the bat and the knife, blood and Tan's DNA were found. Blood and Tan's DNA were also found on the appellant's shorts. Tay's DNA was excluded.

48 Dr Johan Duflou was the forensic pathologist who performed the autopsies on both deceased. Tay died as a result of blunt force head injury with consequent brain injury. There had been a minimum of two extremely forceful blows to the back of his head. There was a defensive injury to the left hand index finger, a stab wound to the neck and four superficial stab wounds to his forehead. The stab wounds had minimal bleeding, indicating they were sustained close to or after death.

49 The evidence indicated that Tay had survived for at least two hours after sustaining the skull and brain injuries. Dr Duflou had asked neuropathologist Dr Rodriguez to examine Tay's brain. Dr Rodriguez reported that "there was brain damage as a result of lack of oxygen to the brain for a period of time and in fact on microscopic examination of the brain ... there were changes in the brain which suggested a survival of at least two hours following sustaining the brain injury and the skull injury". The presence of a substance called Beta-APP has been found in cases of head injury where the victim has survived for at least two hours after the injuries have been inflicted. Beta-APP was present in Tay.

50 Tan died as a result of the combined effect of blunt force head injury with consequent brain injury, and five stab wounds to his neck. His nose was broken and he had multiple injuries to his face, including broken teeth. Dr Duflou believed that after the injuries were inflicted, Tan would very likely have been deeply unconscious. The injuries suggested at least 5 or 10 blows to the scalp, and also a number of blows to the front of the face.

51 The stab wounds were all on the right of the neck. One passed into the voice box and one passed into the base of the tongue and into the back of the oesophagus, which had the potential to be fatal, due to extensive bleeding and inhalation of blood. However, there was no massive bleeding internally from the stab wounds to indicate Tan had survived for a significant period after the wounds were inflicted. It is likely that Tan died around the time of those wounds. It was also likely that the wounds were inflicted after the head injuries.

52 There was an issue at the trial with respect to the source of the blood found on the appellant’s feet. The Crown case was that it was a result of the attack by the appellant on Tan. The appellant’s explanation was that it was a result of Tan coughing as he lay dying. Dr Duflou said that any wound which involved the airway, such as the two wounds described above, typically causes frothing of blood if there is significant bleeding into, and movement of air in, the airway. If the person was conscious it would be a natural reflex to cough or sneeze to try to expel the blood. Typically this frothy blood would have air in it. However if the person was unconscious, reflex actions are lost, including the reflexes associated with irritation of the airway. Dr Duflou was of the opinion that a deeply unconscious person would not cough or sneeze.

53 Dr Duflou’s cross-examination was significant. He said that there was a remote possibility Tan was not so deeply unconscious as to prevent coughing. Losing the cough reflex is a gradual thing. Dr Duflou admitted that he had previously thought there was a possibility Tan had coughed a short while prior to death, but that his view had changed after discussions with emergency physicians and he now believed that after sustaining the blunt force head injuries it was highly unlikely Tan would have coughed. Consistent with his original view he had also believed that a person crouching or standing next to a person coughing in this way could have a fine blood spray projected on to them if the coughing was forceful enough and in the appropriate direction.

54 Dr Gordian Fulde was the director of the emergency department at St Vincent's Hospital. He saw people with extreme trauma on a daily basis. He reviewed the Crown material in order to provide an opinion about Tan. He expressed the view that once he had sustained the head injuries Tan would have immediately become deeply unconscious. When a person comes down to about 9 on the Glasgow Coma Scale (GCS) (which goes from 3 to 15) they lose their reflexes. Dr Fulde expected Tan to have had the lowest score, 3, which was deeper than the level at which any reflexes could have been sustained. For there to be a reflex action, the brain first has to register that there is an irritation and then co-ordinate muscle movement to make something happen.

The appellant's case

55 The appellant did not give evidence and was not cross-examined. He relied on his version of events as told in the ERISPs and walkthrough interview. He called expert evidence much of which related to the origin of the blood found on the appellant.

56 Dr Mark Hersch was the director of the neurology department at St George Hospital. He gave evidence that the minimum structures required for a cough reflex are all housed in the medulla in the brain stem. His opinion was that there could be a co-ordinated cough reflex if there was damage to the upper brain (as with the injuries to Tan), based on experiments done on dogs which showed that when everything above the level of the mid brain is cut off and the animal is no longer conscious, the cough reflex can still be produced. The autopsy on Tan indicated that there was no displacement of the brain stem.

57 While Dr Hersch could not know if Tan did cough, he believed he could have. He noted published evidence that showed patients with a GCS as low as 3 to 5 can cough. He noted that the cough reflex was one of the last things to go in severely injured patients.

58 Dr John Matheson is a consultant neurosurgeon. He stated that head injury is a progressive matter, and that death is slow and occurred when the brain stem function ceased and cardiac arrest occurred.

59 He said that the cough reflex would last until death occurred. He believed that in the position Tan was originally in, it was highly unlikely expiration occurred through his mouth. It was most likely that blood would have been expirated through the neck wounds. The blood in Tan’s lungs indicated there would have been airway irritation which would have caused an inevitable coughing reflex. Dr Matheson was of the opinion that Tan would have coughed and expirated blood. It was significant that he was not cross-examined by the prosecutor.

60 Mr Warren Day is a consultant blood stain specialist who used to be a police crime scene officer. In relation to Tay, he said that he would have expected there to be blood spatter on the hands, legs and front of the assailant, and, possibly, on the back, being cast-off from the baseball bat. The lack of Tay's blood on the appellant could have been due to him (ie the appellant) washing himself after striking Tay, or because he was not the person who struck Tay.

61 Mr Day said that when looking at the photographs taken of the appellant at the time there was no blood that had a classic impact spatter, which is generally a tadpole shape. The photos showed a number of stains that were round and that seemed to have a hollow inside, which to Mr Day’s mind suggested exhaled and respirated blood.

62 Mr Day believed that the staining on the walls above Tan showed impact spatter on the door frame. However, having regard to the foam around Tan’s mouth the stain to the left of the vertical swipe marks was possibly expirated blood and some cast-off blood. There was cast-off blood on the floor around Tan, and accordingly Mr Day suggested you would expect to see more blood on the assailant. He said “what I can’t understand is the lack of blood that is on this person … it just doesn’t make sense.”

The Crown case in reply

63 Detective Sergeant Philip Elliott was recalled to answer the evidence of Mr Day. In relation to the specific blood stains on the appellant’s feet identified by Mr Day, he characterised the shape of the stains as not round but irregular, and he believed they were the result of abrasion by the appellant’s shoes. He maintained that the other stains, although similar to expirated blood, were the result of impact spatter.

The trial judge’s summing up

64 The trial judge’s summing up was lengthy. His Honour commented on many of the issues in a manner which generally favoured the appellant. There are some issues, particularly in relation to what the prosecution asserted were lies told by the appellant, where the directions are not clear. Lies came to form a central if not critical issue in the Crown case. The ambiguities in the directions are the source of problems which in my judgment caused the trial to miscarry.

65 There are difficulties in adequately recording the trial judge’s summing up in these reasons. However, I have first sought to record relevant aspects of his Honour’s remarks before again considering them in the context of the grounds of appeal.

66 The trial judge commenced his summing up with conventional directions including a direction as to the standard of proof. Early in the summing up his Honour discussed the evidence of blood on the appellant’s feet. He reminded the jury that the first time that the appellant said that Tan had coughed and expirated blood was when he was taken by the police on a walk through of the events. This was of significance to the Crown case, it being suggested that the appellant had invented the evidence about Tan coughing belatedly to explain the blood on his feet. His Honour said:

“All right then, now let’s look at the logic of events on the other side, on the defence side of the case. You will recall that in his first account to the police the accused said nothing about the spatters of blood on his feet, in particular he said nothing about any coughing or expiration by Tan. That was stated for the first time when the accused was going through the walk-through. Now when you have a look at the walk-through and you have a look at that first conversation with the police, they are really very different in their whole structure, not surprisingly because one of them takes place in the Police Station and one of them takes place in the premises themselves.

The Crown suggests, as I understand it, that the accused fabricated the coughing or expiration in order to explain the spatters on his feet, that you would not believe that it happened because otherwise why didn’t he mention it when he first spoke to the police? Well you may or may not have gathered that from the Crown case, but that is what I understood and I am only using this by way of example – it’s your understanding of the argument not mine that is important – but ladies and gentlemen let’s follow through the logic of that. First of all, there are difficulties about how would he know anyway about the significance of expiration? But leaving that apart, why would he have fabricated it? He would have fabricated it for only one reason and that is to explain the spatters on his feet. Yet when he gives the account of that event, that spasm or cough, you will notice that he never says where the blood went which, upon the hypothesis that he fabricated that account, was the very point for its fabrication. Indeed, he deals with it in a way, as the Crown pointed out to you, in which it is a little difficult to imagine if there was expiration how that expirated blood would have got on his feet. So having gone to the trouble of fabricating that account for the reason of explaining the blood on his feet he never uses it to explain the blood on his feet. You might think that is extremely unlikely, quite apart from the point that the possibility of expirated blood would scarcely be known to an ordinary member of the public, as explaining that particular blood spatter pattern. So given the logic of events this rather suggests, you might think, but again it is very much a matter for you, that the expiration of blood was not fabricated by him.

Of course if he were the assailant he may have observed blood being expirated anyway. So nothing is directly simple or really simple in this case. I am simply extracting those two samples to give you as examples of the kinds of reasoning from the logic of events that helps perhaps clarify the approach that you might take to those issues which are far from easy and which at first blush you might think are less important than they really are or more important than they really are.”

67 At an early point in the summing up his Honour reminded the jury of what his Honour referred to as the “real question”. He said that question was “Was it the accused or not?” His Honour then turned to discuss what he referred to as general observations about fact finding. His Honour introduced the concept of a fact which may be a “clincher”, an expression which his Honour used on more than one occasion. It is an expression which is apt to mislead. It may lead the jury to understand that if they find a particular fact they may without more convict the accused rather than appreciating that they must consider all of the evidence before they can reach a conclusion.

68 His Honour then turned to consider the evidence relating to Tan coughing and expirating blood. The discussion is lengthy. Dr Fulde’s evidence is used to demonstrate the nature of a fact which may be a “clincher.” His Honour continued:

“I want to make some more than general observations about fact-finding in a case such as this. If at the end of the day there is a particular fact or facts about which you would have a reasonable doubt – and the facts are for you – if I can use ordinary language, the clincher, that could be a fact that is most important. Other facts you may not necessarily find beyond reasonable doubt providing there is a fair and proper basis for drawing the conclusions. These facts might be as to time or as to the use of weapons. There may be a number of matters which, at the end of the day, it is only when you accumulate them that you see their strength but if at the end of the day there is a fact without which you could acquit, then you must be satisfied of it beyond reasonable doubt.

Let me give you an example of such a fact. You will recall that Dr Fulde said that Mr Tan, or indeed for that matter Mr Tay, was so seriously injured they could not have coughed. Now, if you were satisfied that – and there is no real dispute about this, I think – if you were satisfied that the blood spatters on the accused’s feet were of medium velocity and therefore could only have two possible explanations, one, he was present when the blows were inflicted that caused that spattering or, two, they were caused by blood being coughed or expirated onto him – if you were satisfied those are the only two explanations (and that does not seem to be substantially disputed) of course if you take out one of them, namely, he was the assailant, then you might find that he was the assailant. In other words, if you accept Dr Fulde’s evidence, that is probably the end of the matter.

Now, if you were going to rely on that line of reasoning, you could only do so if you were satisfied beyond a reasonable doubt that Dr Fulde was correct when he said he could not have expirated or coughed because of the brain damage. However, I point out – and I will come to this evidence a little later – you will recall there were two witnesses called by the defence, one was Dr Hersch, who said that he could have coughed if the brain stem was intact – and we know that the brain stem was intact – there are numerous papers and research that showed that this reflex was retained. The substance of Dr Fulde’s evidence was that those parts of the brain which were damaged were crucial or critical for the retention of the cough reflex but then you have Dr Matheson saying not only could he have coughed, he must have coughed – he is a neurosurgeon – and the Crown did not cross-examine him to suggest that conclusion was wrong.

Now, I am bound to say this to you: in the face of that evidence you could not properly draw an adverse conclusion, that is, a conclusion against the accused on that issue. The predominance of the medical evidence and the fact that the Crown did not seek to cross-examine Dr Matheson on his final conclusion, which was that he would have coughed and the blood would have come out of the throat, that evidence is in such a state where it would be perverse of you to prefer Dr Fulde’s evidence upon that issue. Aside from general considerations, we are not doctors, we do not have any of the experience of those doctors. You have got experienced experts, acknowledged experts, on both sides. How could you speculate between them?

Dr Fulde gave evidence from his general experience but he made what appears to be a fundamental error, and indeed the Crown Prosecutor did not, I think, suggest to Dr Hersch that that research was immaterial or irrelevant or Dr Hersch had made some mistake about it. It was an error right dead centre, you might think, about his experience. Dr Hersch had got the scientific papers, one of which he had written himself, on precisely this point and said Dr Fulde’s – of course not mentioning Dr Fulde – opinion was quite wrong; that providing the brain stem was in place, and it was in this case, a person could cough. He did not say he would cough; he said he could cough. That left the question whether he would be likely to cough and Dr Matheson said categorically he must have coughed; it is inevitable that he coughed; we know that he had the irritation in his chest. When Dr Fulde gave evidence about whether he thought he might have coughed or not, you might think because of his view of the brain damage, he did not need to ask the question what caused the irritation, he said the brain damage stopped the coughing.

Now, you would have to know, first of all, whether he was capable of coughing. Again the answer to that is yes. Secondly, was there an appropriate irritation? Dr Matheson said, ‘We know the answer to that is yes because we know there’s blood in his lungs’. As I said, the Crown Prosecutor did not cross-examine him to suggest he was wrong.

It appears that if Dr Fulde’s evidence is correct it is conclusive in that the only explanation for the blood being on the accused’s feet is that it occurred when the victims were being attacked. However, Dr Fulde’s evidence would not be a proper basis for you to convict this accused. The state of the medical evidence at the end of the day is that not only could Tan have coughed but that he did.”

69 As this extract from the summing up makes plain his Honour told the jury that the blood on the appellant’s feet could have come from Tan coughing and more importantly any other finding was not open. Accordingly it was not open to the jury to conclude that because of the presence of blood on the appellant’s feet he was the killer. Although the presence of blood was a matter to be considered it could not be the “clincher” whatever the jury understood by that expression. Notwithstanding the directions he had already given the trial judge continued:

“Of course, it is another question as to when it happened. Did it happen as the accused said it happened? That is another issue at large upon which the doctors say nothing but you might think that putting together the unlikelihood of the accused fabricating it and, for the reasons I have already explained, the evidence of Dr Matheson that he could have coughed and you would be quite satisfied that he would have coughed, in any event you must give the benefit of the doubt upon that question to the accused.

I gave you the example of the blood on the accused’s feet because if that [sic] you found that fact to be the clincher against the accused, you have to be satisfied of it beyond reasonable doubt.”

The OOO call

70 His Honour reminded the jury of the sequence of events including the OOO call, discussion with the police at the scene and at the later ERISP. The prosecution theory was that when the appellant telephoned OOO he was not aware that the call was being taped. It was suggested that his account of the events which he gave to the operator was true when he said he knew that both his flatmates were dead when he made the call. However, it was suggested that when he later told the police in his ERISP that he made the call at a time when he knew that only Tan (being the victim in the hall outside the appellant’s room) was dead he was lying. The suggestion was that because he was not aware that the OOO call was taped he believed that he could with impunity give a more favourable version of events to the police. The suggestion had little substance. The fact is that on either version both the victims were dead in circumstances where the appellant was the only other person known to be at the premises. Reporting that he had seen both the deceased before making the call did not make it more or less likely that he was the killer. Furthermore, the appellant gave the same account to Sgt Woodward at the scene as he had given OOO. If he had believed that the OOO call was not recorded and he could accordingly lie with impunity to the police the fact that his account to Sgt Woodward was consistent with the OOO call was not explained.

71 The directions given by his Honour did not consider these difficulties. His Honour spoke of the possibility that when the appellant made the OOO call, because he told the operator that both his friends were dead, he may only have known this because he was the killer. His Honour again used the expression the “clincher” and effectively invited the jury to convict if they were satisfied that he had told the OOO operator that both were dead because he was the killer:

“You will recall that when the accused made his triple O call he said that his two mates had been murdered ie that they were dead. The Crown said when you have a look at his account, at least the account which he gave first to the police when he went to the Police Station following the killings, the Crown pointed out to you that the accused gave an account of when he made that call and what he saw that showed that he could not have known when he made that call that in fact both were dead because his account, those passages read out to you by the Crown Prosecutor, showed that he was unaware at the time that he made the call or, more precisely, unaware at the time when he said both of them had been murdered, if he was telling the truth, that Tay was dead, because his account to the police had been that he had only seen Tan’s body at that stage.

Now I hasten to point out Mr Doyle has pointed out to you that in fact in the very first account to Woodward the accused did say that he saw the two bodies and then went back into his room and made the call and I will take you to that evidence in a moment, but I am just using this as an example of what I mean. If that was for you a clincher, if you were satisfied that if the accused said that they were murdered in the triple O call when the only way he could then have known they were both murdered is if he had been the assailant, then it must follow that he is guilty and of course it follows that he is the murderer and it follows that you must be satisfied beyond reasonable doubt that when he made that call he knew that they were dead, not because he had gone and seen them afterwards, but because he was the murderer himself.”

72 This direction has a significant logical flaw within it. His Honour had effectively invited the jury to convict if they came to the view that the appellant made the OOO call at a time when, because he was the killer, he knew his friends were dead. However, the relevant fact was whether he was the killer. Knowing that they were both dead before making the call could never be a critical fact if that is what his Honour meant by being a “clincher.” Knowledge that they were both dead was neutral and of itself told the jury nothing about guilt or innocence.

73 If the jury were satisfied that the appellant was the killer it could not have been from the sequence of events associated with the phone call. Nothing turned upon whether he had seen both bodies before he made the call. Plainly if when he told the police he had seen only one body before making the call, and that was the truth he could not have been the killer of the other. But the fact that he said he had seen both before making the call said nothing about whether he was the killer. There was a real possibility that even if he was the killer he was confused as to the sequence of events. The trauma of the events may have been sufficient to cause an innocent person in his position to be confused about their precise movements and recollection.

74 His Honour reminded the jury that during the walkthrough the appellant expressed uncertainty as to the sequence of events. His Honour said:

“He himself says in the walkthrough that he now finds the sequence uncertain in his mind. You don’t have to be positively satisfied of the truth of that if you feel that it might reasonably be the case that he was confused and that this was an explanation for what he had said to the police in the first interview. So again I am not saying this is a crucial fact but if you are minded to think it was a crucial fact, one upon which his conviction rested, if it was so then it’s a link in the chain. You must be satisfied of it beyond reasonable doubt.”

The “big lie”

75 After a short adjournment his Honour next gave the jury directions in relation to principles of law. He firstly discussed an accused’s right to silence. He then turned attention to what he referred to as “the use of lies.” He said:

“The Crown has said that really, there is a big lie told by the accused in this case about what he told the police because they say, ‘Look, he’s guilty and this was just his attempt to escape that responsibility, that liability, and what he has told you is just a pack of lies about his hearing a noise when he was asleep and waking up.”

76 There is a possible ambiguity in his Honour’s use of the expression “big lie.” That ambiguity was the source of different understandings by the parties in the course of this appeal. The Crown submitted that the use of the expression “big lie” related to the entire sequence of events recounted by the appellant. The appellant submitted that it was confined and referred only to the appellant’s statement that he did not see Tay’s body until after he had rung OOO.

77 The ambiguity is enhanced by his Honour’s further remarks. He said:

“What follows if you assume that he is lying? What are you left with there? Well, you have to be first satisfied positively that it was a lie – and I am being a little general here because this attack is really upon the whole of his account of what happened which the Crown says you would reject.”

78 His Honour then referred to the record of interview tendered in the Crown case. His Honour identified matters in the record of interview which the Crown submitted were not true. These include a reference to the fact that he was sleeping and woke up and found the bodies when he eventually left his room. His Honour also referred to what the Crown said was the lie about payment of rent. His Honour passed comment that “it is difficult to think why anybody would commit these horrendous crimes because he owed some rent” and expressed the view that the jury might think the rent was a red herring. Nevertheless his Honour said: “if you are satisfied it was the accused, even if it was not the rent but it was something else, then you must convict the accused.”

79 After some further discussion about the rent his Honour returned to the question of lies. Having told the jury that they were required to evaluate the record of interview to determine what parts they accept and those parts they would reject his Honour turned to the question of the reason why a person might lie. His Honour’s remarks which would appear to have been made with the decision in Edwards v R (1993) 178 CLR 193 in mind were:

“An innocent person can lie because they might think a particular fact looks bad or they might lie because the disclosure of that fact might be embarrassing and there may well be other reasons for the lie. In this case you could only put the lie on the scales against the accused on the question of his guilt if you were satisfied that the reason for the lie was because of a consciousness of guilt and it would therefore come out from his being guilty.”

80 His Honour again discussed the issue of the rent in the context of the reason why the appellant may have told lies about it. His Honour reminded the jury of the Crown submission that the problem of the rent may have provided a motive for the killings but in any event “the lie … indicates that he was prepared not to tell the truth to the police” and that the Crown said “why would you believe anything else he said.” His Honour then said “once he is a liar, he is always a liar in effect. It affects the rest of his credibility.” These words are not included in quotation marks which would normally suggest that rather than being a submission of the Crown they were his Honour’s observations. However, this is unlikely for his Honour immediately said “well it is a matter for you whether you find yourself persuaded by that argument.” His Honour then said:

“It is a matter for you to decide whether or not you would reject his story. If you were satisfied that what he said about the rent was a lie, it undoubtedly does affect his credibility to some degree. It is a matter for you whether you think it so seriously affects his credibility that you would put it in the scales against him when you are considering the question of whether or not his account to the police of what happened might reasonably possibly be true.”

81 His Honour next considered some other aspects of the evidence. He repeated a discussion of the different accounts given by the appellant. He said:

“In some respects you might think that some of the things in what he says are so obviously wrong or so obviously contradictory, namely, he saw the bodies before he made the call on the one hand or on the other hand he only saw one of the bodies when he made the call. They are so different you might have thought if he was going to fabricate that he would have got it right, especially if he is, as the Crown says, as cunning as the Crown submits he is. You might think that is a particularly stupid mistake, but guilty people make mistakes too. I am not suggesting that that is something you would put in the scales one way or the other but what I am saying is that when you examine some of these things, in a way the arguments seem to lose the force they first had on the first basis and you say oh, that’s alright, but when you analyse it you might think that many of these arguments go both ways.”

82 His Honour then said:

“At all events what you need to bear in mind when evaluating this material is what the Crown is asking you to draw from it bearing in mind the Crown’s onus of proof. What the Crown is asking you to do is – this is a fabrication designed to allay suspicion and put the suspicion on a fictional assailant, when all the time the accused is the assailant. And you ask yourself, does this account show us that this is so?”

83 His Honour turned to consider the physical evidence and discussed the fact that none of Tay’s blood was found on the accused. His Honour also discussed the evidence in relation to Tan’s blood and the question of expiration or blood spatter. This of course was the issue relevant to the blood found on the appellant’s feet. His Honour said:

“So whether that is expirated blood or not really does not in the end, you might think, help solve any question here. It only solves a question if you are satisfied beyond reasonable doubt that it is not expirated blood.”

84 However, his Honour told the jury that there is nothing:

“Certainly in the expert evidence, which would justify your coming to that conclusion because the experts are all agreed, both the police experts and Mr Day, that that blood is consistent with expirated blood and with the assailant’s [sic] blood. In the end you might think nothing much turns on it.”

85 His Honour then discussed the arguments of both the prosecution and the defence. He again returns to the question of lies. His Honour said:

“The Crown then points to the forensic evidence and points to lies told by the accused about critical things to various people.”

86 He again referred to the discussion with the police and also referred to what the appellant said to his friends and acquaintances. His Honour, in my opinion correctly, observed that the lies told to others were entirely explicable as being told out of embarrassment rather than any consciousness of guilt. His Honour referred to other untruths relied upon by the Crown. In particular his Honour referred to the Crown’s submission that the appellant’s account that he had heard the television but then went to sleep was a “deliberate fabrication” to cover up the early attack on Tay. In the course of this discussion his Honour said:

“The accused’s account is he was asleep when Tan came home. The Crown submits that it seems to be reasonable to say that Tan went from the kitchen while he was waiting for his lunch into the lounge room and perhaps saw Tay when he turned on the television and he was then attacked. The Crown asks rhetorically, ‘If it wasn’t the accused, who was it?’ Well, of course, that lies at the very centre of the case. The question really is: Who was it? Has the Crown established beyond a reasonable doubt that it was the accused, and that is perhaps not an entirely unfair way of putting the same question.”

87 During a break in the proceedings there was a discussion about his Honour’s summing-up. The Crown Prosecutor raised the issue of the lies. His Honour indicated that he understood the Crown to say that the whole of the appellant’s account of what happened in the house was a lie and “in a sense” a consciousness of guilt lie. The prosecutor then discussed each of the subject matters about which the appellant is alleged to have lied.

88 When the court resumed, in the presence of the jury, his Honour returned to the question of lies. He reminded the jury that he had dealt with the question of rent and its possible significance to the issues in the case and said that “intimately connected with the rent is the issue of Andrew.” The Crown had submitted that when the appellant was asked about these matters, but said that he did not know any person called Andrew, he was lying. His Honour said to the jury:

“Now as I have already explained to you, you must be very careful in using lies simply because if someone lies it doesn’t make them guilty and an innocent person might well lie about things that they are either embarrassed about or they might think might mistakenly make people think that they were or might be guilty.”

89 His Honour tells the jury that if they came to the view that this was a lie “the real question is how significant is this lie?” His Honour said:

“So considered then, and it’s a matter for you to weigh up, this lie about rent and about Andrew, if you find it to be a lie, may be really not all that significant when you look at the whole of the rest of the evidence but that is a matter for you to evaluate.

The Crown says you would (a) say it’s a lie, (b) about an important matter and (c) that it came out of his consciousness of guilt. It is only if you were satisfied beyond reasonable doubt that it was a lie, that it was important and that the correct interpretation of it was because he was guilty of these offences that you would be entitled to use it in that way.”

90 His Honour then discussed the walkthrough again in the context of the Crown’s assertion that the appellant had lied. His Honour said:

^th

looking up the back.

Now the Crown says that you would regard as significant the different descriptions that he gave, the spurt, the spasm, still later he mentioned cough and you will remember him giving a (demonstrates cough) in the interview as to what it was like. Blood came out from the front. But then you might think, as you look at this, is he actually describing it when he says (p 34):

Is he saying – it’s a matter for you as you read this – is he saying that this happened at the same time or he noticed the froth and then it was a spasm and blood spurted? What actually is he saying? Unfortunately the police officer never seems quite to get precise but it may be at this stage of course the possible significance of expirated blood looking like medium velocity, being a medium velocity blood spatter, was not present in their minds and of course there was undoubtedly froth seen on the mouth and nose of the deceased. So whether the accused is talking about that or whether he is talking about another spurt of blood is something that you will need to consider by looking carefully at the interview.

As I pointed out, he does not seem to be suggesting that any of that blood got on his feet. The Crown has proposed that it was not so much, as I understand it, that it was because he felt that there was more blood on him than was explained by what he had thus far said about what he had done. The Crown said that it was nonsense that anyone in his position would check. I have already said something about that; that would be a matter for you.

As I have already mentioned, his question to ambulance officer Ravlich, ‘Are they dead’ is inconsistent with his saying: My two friends (a) have been murdered and (b) my two friends are lying dead outside. I think I have already pointed out to you that in the OOO call that may have been an assumption from the way they looked or it may have been something from what he knew. If he knew, it may be difficult to know why he asked Ravlich, ‘Are they dead’ and that may be a fabrication designed to show that he had nothing to do with killing them. It is a matter for you if you think that is a realistic explanation.

^th

I am not, ladies and gentlemen, going to take you through every argument that the Crown put but the Crown did point to the fact that he said that he was so terrified that he locked himself in his room and then he actually went out and felt the pulse and that this was quite inconsistent and, considering what he had done when actually checking these bodies, his apparent reluctance to go close to the places where the bodies were when he is on the walk-through should also be seen by you as a pretence.

The Crown said that when you have a look overall at what he said, the accused is quite good about micro-recollections, that is, minor details, as I understand it, but his general statements about what occurred were so inconsistent that it showed that he was a liar.”

91 His Honour then considered the defence case. He reminded the jury that the inconsistency in the appellant’s accounts of the relevant events may be explained as a “confabulation or confusion of mind or memory because of the enormous stress and nervous consequence of what he had witnessed.”

92 Amongst other matters his Honour reminded the jury that:

“If you think it is reasonably possible that the blood on the feet came about as a result of expiration, on the occasion that the accused said it was, it was right at the end while he was examining the deceased. If that is reasonably possible, then you would not use that evidence against him. You are entitled to use it more generally but if that was a crucial part of the case which would end it for you, as it were, you would have to be satisfied beyond reasonable doubt that there was only one rational explanation of that blood on his feet.”

Ground 1: The trial miscarried by reason of the Crown Prosecutor’s address on lies as consciousness of guilt taken together with the failure of the trial judge to direct the jury adequately or correctly on the subject.

93 The appellant submitted that by a combination of the Crown Prosecutor’s address and the directions given by the trial judge the jury were not appropriately instructed with respect to the issue of lies. It is apparent from the prosecutor’s address that lies played a prominent part in the Crown case.

94 The prosecutor said that there were “five categories” of evidence which underpinned the Crown case. The third category was lies. The fourth category was motive based on the proposition that the appellant owed Tay money for rent. Two of the alleged lies related to rent. One was his denial that he knew “Andrew” and asserting that he was to become the fourth tenant. The other was the appellant’s denial that he owed rent to Tay.

95 Lies were relied on by the Crown both as to consciousness of guilt and credibility. The prosecutor said:

“Firstly, that he has thereby demonstrated a consciousness of guilt, that is, that is not capable of giving an innocent explanation of the events.

Or alternatively, it would be open to you to use that evidence as being evidence which diminishes his credibility.”

96 The prosecutor spoke of the “big lie”. The prosecutor said:

“I have dealt with the first area. I want to move now to the question of the big lie, that I submit is the big lie, which is essentially his version of what happened inside that flat as told to the police on 15 September. This is the evidence which I submit to you, depending upon your findings that would be open to you, the finding that demonstrated a consciousness of guilt and/or his creditability, is damaged and diminished by what I would submit are clear lies.”

97 He told the jury that it was open to the jury to find that if the appellant did lie “it is open to you to conclude that he was thereby demonstrating that consciousness of guilt.”

98 After the prosecutor had completed his address there was a discussion between his Honour and counsel in which it would seem his Honour expressed the view that the suggested lies could not evidence consciousness of guilt. Nevertheless his Honour did not tell the jury they could not use the “big lie” as consciousness of guilt. In fact his Honour’s directions would have left them with an understanding that the “big lie” could be used in this manner.

99 The essence of the Crown’s argument was that when the appellant telephoned OOO, the call being recorded, the appellant said that he had woken up, heard screaming, seen that both Tay and Tan were dead with “blood all over”, there was a baseball bat and a knife, they were “bashed in complete” that he had shut the back door and “come back into my room and rang you.” However, when interviewed at Maroubra Police Station the appellant said that he did not see Tay’s body until during the course of his conversation with the operator. It was suggested that he did not know the telephone call was recorded and invented a different story to delay suspicion.

100 There is, as I have already indicated, a significant problem with the Crown’s argument. The appellant was interviewed by Sergeant Woodward at the scene. The detective took comprehensive notes. During that interview the appellant gave the same account of events as he had given in the OOO call.

101 The Crown’s fundamental submission was that the appellant changed his account and lied at the police station. However, as I have previously indicated there is no apparent disadvantage (as opposed to any advantage) to the appellant from the account that he saw both bodies before making the telephone call. If the version of the events given at the police station was a lie it must be that from the time the appellant was questioned at the scene he consciously determined to change his account. If his account at the police station was a lie he would have known that it was contrary to the version of events he gave Sgt Woodward. Although an account which suggested that he knew only one person was dead when he rang OOO may have helped him there was little to be gained by fabricating that account when he had already told Sgt Woodward a version of events consistent with the OOO call. I have already indicated this. His Honour’s directions on this issue (at [71]) failed to give the jury appropriate guidance.

102 The jury were given evidence of the walk-through conducted on 18 September where the appellant appeared uncertain about the sequence of the relevant events. The prosecutor again sought to use this uncertainty as a consciousness of guilt in the mind of the appellant.

103 The appellant submitted, and in my judgment the submission has force, that the differences in the appellant’s accounts of the sequence of events is most likely explained by confusion and carries no inculpatory inference. Although the differing accounts may have cast doubt upon the reliability of the appellant it could not be concluded that it was told by him “in circumstances in which the explanation for the lie is that he knew the truth would implicate him in the offence”: Edwards (at 210).

104 When his Honour summed up he spoke at length about lies. I have earlier recorded significant parts of the summing-up. As I have indicated his Honour took up the Crown’s suggestion and spoke about “a big lie” which his Honour referred to as being what “he told the police.” His Honour then refers to the evidence which the appellant gave about hearing a noise when he was asleep and waking up. His Honour said “the Crown says you won’t believe any of that.” His Honour then identified the Crown attack – “meaning as I understand it ‘the lie’ – it is upon the whole of the appellant’s account of what happened.”

105 Having expressed the issue in general terms, his Honour proceeded to discuss particular assertions made by the appellant which the Crown submitted were not true. He referred to the circumstance of sleeping and waking and the assertion with respect to the rent.

106 His Honour then provided the general direction on lies which I have extracted at [79] and extract again for convenience:

“Ladies and gentlemen, it is perfectly obvious that a person can lie for a whole lot of reasons. An innocent person can lie because they might think a particular fact looks bad or they might lie because the disclosure of that fact might be embarrassing and there may well be other reasons for the lie. In this case you could only put the lie on the scales against the accused on the question of his guilt if you were satisfied that the reason for the lie was because of a consciousness of guilt and it would therefore come out from his being guilty.”

107 There seems little doubt that this direction was intended to reflect the requirements of Edwards. However, it fell well short. Edwards requires the jury to be reminded that they must first identify the alleged lie, be satisfied that it is a lie and then consider whether it was a lie told from a consciousness of guilt or for some other reason (pp 210-211).

Reg v Lucas (Ruth)

108 No other significant attempt was made to give an Edward’s direction.

109 Apart from referring to the “big lie” his Honour also referred to the issue of the rent. He then gave consciousness of guilt directions. Although it is not referred to directly, there is no suggestion that the “big lie” was not to be understood by the jury as potentially being told out of a consciousness of guilt.

110 The trial judge returned to the matter in the course of summarising the Crown’s arguments. His Honour again referred to the Crown’s reliance on lies by the accused in relation to “critical things to various people” such as the police, friends and acquaintances. His Honour then gave directions diminishing the impact of the lies told to friends and acquaintances. Nothing further was said about lies to the police.

111 Later in the summing-up in the context of a discussion about “Andrew” and the rent his Honour gives a conventional direction about lies. This was immediately followed by reference to the OOO call which inevitably brought to mind the interview of 15 September and the walk-through. On this occasion, although no effective direction was given, the jury would have understood it to be a reference to consciousness of guilt manifest in the “fabrication” of evidence. On this occasion reference was made to the timing of the call and viewing of the body and also to the account given in the walk-through of the “coughing and spasming” which was said to constitute “fabrication” of evidence.

112 Notwithstanding these lengthy and complex directions the factual circumstances of the alleged “big lie” were not accurately placed before the jury. Both because the “big lie” was not available to be used on the basis it was told out of consciousness of guilt and in any event because the warnings given were inadequate in my judgment the trial miscarried. The jury should have been told that the inconsistency in accounts of the relevant events was a matter which may be relevant to the appellant’s reliability and credibility but it was not available as “consciousness of guilt.”

113 Notwithstanding the problems evident in the summing up defence counsel did not ask for a correction. Rule 4 applies. In large measure the failure to seek a direction may be explained by the confused and confusing approach to the issue in the judge’s remarks. No doubt this was a product of the complexity of the evidentiary issues and the manner in which the case had been presented by the Crown. However, there were no tactical advantages assumed by the defence remaining silent on the matter. The issues were of such significance in the trial that I would grant leave to raise this ground of appeal which I would uphold.

Ground 2: The trial miscarried by reason of the way in which evidence about blood on the appellant’s feet was dealt with in evidence, Crown closing submissions to the jury and in the summing up.

114 In addressing this ground it is necessary to briefly recount the relevant evidence which I have discussed at [52]-[62] above. During the walkthrough on 18 September 2003 the appellant raised the possibility of Tan expirating blood when he said “like, when I was, I was right beside him… like, a spurt of blood came out of his nose and mouth … and he spasmed.” The appellant described how he was leaning down beside Tan’s body and said “that’s when I saw the blood, saw the spasm … and blood came out from the front … and that’s when I, like, took a step back and all the time I was, just looking up this way, just in case somebody’s surprised me.”

115 Later when asked by the police to clarify what he said about blood coming out of Tan’s nose the appellant said “it was just, like, it was like froth … and he sort of spasmed … and that made me take a step back … just, no, I didn’t expect that it would spurt …”

116 At this point the appellant (who apparently appeared reluctant to approach the site of where Tan’s body had been located) at the request of the police endeavoured to direct Sgt Davis to assume a position where he (the appellant) was at the time of the spasm or spurt. The demonstration led to Sgt Davis squatting beside the assumed location of Tan’s body with his left foot closest to the body. The photographic evidence showed more blood on the appellant’s left foot than on his right.

117 This evidence raised the possibility that the blood found on the appellant’s feet was a result of expiration from Tan while the appellant was leaning close to him and before he died. The issue had considerable significance at the trial. If the Crown could exclude the possibility of expiration being the occasion for the blood, there being no other explanation other than that it spurted from Tan when he was attacked the appellant was almost certain to be convicted. If however, it was accepted that the blood was expirated from Tan the jury may have doubted whether the appellant was the killer.

118 As I have related Dr Matheson who was called by the defence was not cross-examined which led inevitably to the conclusion that coughing was not an issue in the case. Dr Matheson said that Tan would have coughed. Notwithstanding this position the prosecutor put to the jury:

“For instance could it be, is it reasonably possible that the blood staining on his feet was expirated blood deposited there as a result of the deceased man having some reflex coughing or sneezing or some other spasm that deposited the blood in an innocent way on the accused when he was near him? It comes down to that really. The Crown submits to you that you would reject any possibility as being reasonable that the blood on Mr Tan got on the feet in any way other than from him being the attacker.”

119 The appellant emphasised that in a number of submissions the prosecutor used the words “if” or “even if” in relation to whether Tan could have coughed. Examples are as follows: “If you accept for a moment that there had been some form of spasm, cough, whatever, and the deceased had expirated some substance” and “even if the deceased man had been capable and had in fact expirated blood through his mouth or his nose or any orifice, how did it get on the top of his feet?” There are further examples.

120 The appellant submitted that the intention of the prosecutor was clear. It was intended to maintain what was referred to as “the fiction” that a deeply unconscious man could not cough. It was submitted that this submission was not open to the prosecutor given the evidence of Dr Matheson and the absence of any challenge to it. Nothing of the kind was put to Dr Matheson by the prosecutor and Dr Duflou, himself, had said in an earlier report that the defence scenario was entirely possible.

121 The prosecutor emphasised to the jury that in his submission the video walk-through did not support the appellant’s version as to how the blood came to be on his feet. He referred to Dr Matheson’s evidence as indicating that an expiration would have been expected to come out of the throat, out of the side of the deceased. In fact Dr Matheson’s evidence was that he would have expected blood to have been expirated through the neck wound.

122 The Crown Prosecutor’s address was interrupted by an adjournment. After the adjournment he approached the matter in a somewhat different manner. Appearing to accept that expiration would have occurred he concentrated on the time at which it might have taken place. He said “you might expect it to be before the accused got anywhere near him.” Whether this submission was available is unclear because it would depend upon the time of death. Dr Matheson’s evidence was that the cough reflex would last up until the last minute before death occurred.

123 In summary, the prosecutor’s argument had two essential elements. Firstly, he challenged the proposition that expiration ever occurred and, against the eventually that this argument could not succeed, developed an argument asserting that it occurred at the time the appellant was killing Tan.

124 As I have already indicated when summing up the trial judge gave the jury a number of directions in relation to expirated blood. In the course of circumstantial evidence directions his Honour gave the jury directions about indispensable intermediate facts (Shepherd v R (1991) 170 CLR 573). The trial judge told the jury that it would not be open to the jury to rely on Dr Fulde’s evidence as to the impossibility of coughing and expiration of blood. Having given this warning his Honour nevertheless left to the jury that they might find “that fact to be the clincher.” The relevant fact was that the blood on the appellant’s feet was not expirated blood.

125 The appellant submitted that by using the term the “clincher” his Honour elevated this evidence to a significance well beyond that contemplated by evidence the subject of a Shepherd direction. It was submitted that his Honour was saying to the jury not merely that they might regard this fact as indispensable (and if so, would have to be satisfied to the criminal standard about it) but that in a positive way this factual matter could, independently of other facts and issues and what the jury might make of them itself “clinch” the question of guilt. It was submitted by the appellant that once the medical evidence was properly understood and the relevant portion of the walk-through (and photographic evidence) was considered the suggestion that this evidence was the “clincher” was not available, or at the very least is highly dangerous to infer.

126 The essential complaint of the appellant was that in effect the judge left the jury with a possible finding that there was “only one rational explanation of the blood on the appellant’s feet.” Although the trial judge left the issue in those terms it was submitted that the expert evidence was not capable of bearing that complexion. Rejection of the appellant’s account about blood on his feet could not provide an independent basis for drawing a conclusive inference about guilt. It was submitted that the trial judge was correct when he said early in his summing up that “the issue of the expiration of blood has become somewhat less significant than it appeared at an early stage” and at a later stage said that the significance of the subject “was relatively slight.” It was submitted that the submissions of the prosecutor and the way in which the issue was left by the trial judge went impermissibly beyond this point.

127 The respondent submitted that the Crown Prosecutor was entitled to put to the jury that the blood found on the appellant was not due to expiration, even if the deceased had expirated. It was submitted that it could have been due to him being the attacker for a number of reasons including:

the unlikelihood of the appellant putting his hands on the chest and wrist of Tan as alleged in light of the nature of the injuries which were incompatible with life;

the initial failure to mention any spasming;

the stated position of Tan relative to the appellant rendering unlikely the possibility of blood getting on the top of the foot;

the appellant saying that Tan spasmed out of his nose and mouth not out of neck wounds which Dr Matheson suggested would have been the source of expirated blood; and

reference to the appellant touching Tan’s left hand but the left hand being tucked up under his sleeve.

128 It was submitted that the submissions by the Crown Prosecutor were consistent with the medical evidence and the appellant’s own telling of the sequence and timing of events surrounding his approach to Tan’s slumped body. The Crown Prosecutor’s submissions focused on the detail of what the appellant told police. The Crown emphasised that the trial judge had stressed the possible weakness of the Crown argument in his summing up.

129 The respondent addressed the appellant’s submission that by introducing the possibility of coughing the prosecutor had been unfair to the appellant. It was submitted that the trial judge gave clear and strong directions to the jury on the issue and there was no question as to how the jury was to use that evidence. The respondent emphasised the following directions from the trial judge:

“… you will recall there were two witnesses called by the defence, one was Dr Hersch, who said that he could have coughed if the brain stem was intact – and we know the brain stem was intact - there are numerous papers and research that showed that reflex was retained. The substance of Dr Fulde’s evidence was that those parts of the brain which were damaged were crucial or critical for the retention of the cough reflex but then you have Dr Matheson saying not only could he have coughed, he must have coughed – he is a neurosurgeon – and the Crown did not cross-examine him to suggest that conclusion was wrong.

Now I am bound to say this to you: in the face of that evidence you would not properly draw an adverse conclusion, that is, a conclusion against the accused on that issue. The predominance of the medical evidence and the fact that the Crown did not seek to cross-examine Dr Matheson on his final conclusion, which was that he would have coughed and the blood would have come out of the throat, that evidence is in such a state where it would be perverse of you to prefer Dr Fulde’s evidence upon that issue.

..

Dr Fulde’s evidence would not be a proper basis for you to convict this accused. The state of the medical evidence at the end of the day is that not only could Tan have coughed but that he did.

Of course, it is another question as to when it happened. Did it happen as the accused said it happened? That is another issue at large upon which the doctors say nothing but you might think that putting together the unlikelihood of the accused fabricating it and, for the reasons I have already explained, the evidence of Dr Matheson that he could have coughed and you would be quite satisfied that he would have coughed, in any event you must give the benefit of the doubt upon that question to the accused.”

130 Later in his summing up (in excess of 100 pages later) the trial judge said:

“Well we have had an extremely brief lesson in neurology, ladies and gentlemen – I think that one needs to leave that frankly with the doctors – and you are left with Dr Matheson’s conclusion that he would have coughed about which the Crown Prosecutor did not cross-examine and really that is the only safe approach you can have to the medical evidence. I repeat, of course, when that happened and if it happened and when the accused said it happened, is another question you might need to consider, giving the accused of course the benefit of the doubt.”

131 In addition, it was emphasised that these directions were given in an overall context of comments by the trial judge and that although touched upon in the appellant’s written submissions, this context was not properly recognised. That context was said to be reflected in the following passages from the summing-up:

“You will recall there were differences of opinion between Mr Day and the experts also as to whether the patterns seen near Mr Tan’s body were most consistent with spatter or expiration … Members of the jury it is a matter for you but that may not really matter very much because if you accept Dr Matheson, and I think I have said you really ought to, it follows the expiration.

…

So whether that is expirated blood or not really does not in the end, you might think, help solve any questions here. It only solves a question if you are satisfied beyond reasonable doubt that it is not expirated blood. Then, as I say, you are left with the conclusion it follows that it might have been caused when the attack is taking place but I think I have already suggested to you that there is nothing, certainly in the expert evidence, which would justify your coming to that conclusion because the experts all agreed, both the police experts and Mr Day, that the blood is consistent with expirated blood and with the assailant’s blood. In the end you might think nothing much turns on it.

…

In the end it is a matter for you, ladies and gentlemen, but it strikes me that there is probably much to be said on either side and it may not matter very much since everyone agrees, including Sergeant Elliott, that it might well have been expirated blood and on the balance of the other evidence can you be satisfied that it is not?

…

At the end of the day you might think that the issue of the expiration of blood has become somewhat less significant that it appeared at an early stage of the case mainly because of the medical evidence that it could and would have occurred and because the Crown experts themselves say you cannot tell the difference between expirated blood and spattered blood from a blow and one is left with the accused’s account.”

132 And later:

“… if it’s reasonably possible that it got on his feet by an expiration that occurred when he was examining Tan, as he said he was examining Tan, then you might find the significance of that blood in terms of demonstrating whether he was guilty or otherwise really, as I have already said, relatively slight.”

133 The respondent submitted that nowhere in the trial judge’s directions did his Honour introduce the concept of fabrication by the appellant as consciousness of guilt. It was submitted that his Honour simply put into context the Crown’s argument about the appellant’s walk-through video explanation of the expiration. It was submitted that it was never put that in relation to these matters the appellant had lied and that the jury could act upon those lies. It was further submitted that there was no error in the trial judge telling the jury that if, on the question of whether the blood on the appellant was expirated or impact spatter, they decided to accept the latter explanation, then they would have to be satisfied beyond reasonable doubt before using that fact as the “clincher” against the accused. It was submitted that the trial judge’s directions to the jury about proof beyond reasonable doubt could not, when viewed in the overall context of the comments made to the jury, fairly be seen as a statement to the jury that “in the positive way this factual matter could (independently of other facts and issues and what the jury might make of them) itself clinch the question of guilt” as suggested by the appellant.

134 The respondent submitted that the trial judge’s directions did not act to the detriment of the appellant at all and that in fact the overall impact of those directions was favourable to the defence.

135 In my judgment the appellant’s submission should be accepted.

136 The critical direction by the trial judge in relation to the matter of blood on the feet was as follows:

“If you think it is reasonably possible that the blood on the feet came about as a result of expiration, on the occasion that the accused said it was, it was right at the end while he was examining the deceased. If that is reasonably possible, then you would not use that evidence against him. You are entitled to use it more generally but if that was a crucial part of the case which would end it for you, as it were, you would have to be satisfied beyond reasonable doubt that there was only one rational explanation of that blood on his feet.”

137 The evidence of Dr Matheson was clear and unchallenged. As the trial judge told the jury Tan would have expirated before his death. The evidence, at the least, was that the pattern of blood on the feet could be consistent with expiration. Accordingly, the jury could not have been satisfied that there was only one rational explanation of the blood on the appellant’s feet. Early in the summing up the trial judge said that he had referred to blood on the feet because the jury may find that fact to be the “clincher” against the accused. It is not entirely clear what his Honour was referring to as being the fact which was the “clincher.” If his Honour was saying, and I believe this is likely to be the case, that if the jury rejected the appellant’s account that the blood on his feet was as a result of expiration when he bent over the deceased they could convict the appellant, there was an error.

138 The issue agitated in ground 2 was not the subject of a request for redirection by the trial judge. This is not surprising. His Honour’s directions were lengthy and various subject matters were discussed at different points in the summing up followed by a repetition of similar matters. It would have been a difficult task to identify the problems and seek effective corrections. As with ground 1 I can see no tactical reason for defence counsel’s failure to intervene. The problems are of such significance that in my view it would be appropriate for this Court to grant leave and uphold this ground of appeal.

Ground 3: The verdict is unreasonable or cannot be supported having regard to the evidence.

139 The appellant submitted that the verdict is unreasonable or cannot be supported having regard to the evidence. As will be apparent from the earlier discussion, I have considered the evidence and submissions in this case in detail.

140 The appellant submitted that the relevant facts disclosed some unusual matters concerning Tan and Tay. Both Tan and Tay were studious. Tan can be taken to have known that Tay would neither be attending the 12 noon class nor the subsequent meeting. Tan must have known that Tay, at the very least, had a plan for the day which did not involve going to University. Tan said according to a close friend, Ghan, whose statement was read into the evidence, that the afternoon meeting was to be cancelled because Tay “has got something to do.”

141 If Tan was not involved in Tay’s murder (and there is nothing to suggest that he was) Tay must have been alive when Tan left to go to the University.

142 Tan left the University in a car. However, his home was a short walk away and the taking of a car trip was unusual. The appellant points out that the car was already there and waiting even though Tan’s class had finished early. This was unusual. Furthermore, the driver and passengers of the vehicle have never been identified. It is inconceivable that they were not aware that Tan, at least, was killed that day. If they had an innocent involvement with Tan it would be expected that they would have come forward. The evidence suggests that there were 2 or 3 persons in the car and the appellant submitted that it may be inferred that they deliberately hid from the investigations.

143 The appellant points to the fact that no blood from Tay was found either on the knife or the bat. The prosecution suggested that the absence of Tay’s blood might be explained by a limited number of sites from which samples were taken. Mr Day said that he would have submitted the entire bat and not swabs taken from it to the laboratory for analysis which would be a fairly routine procedure. This was not done. It was submitted that in the absence of a proper investigation in this respect the Crown cannot seek support from this failure. Accordingly, it was submitted that the evidence must be taken as found being that there was nothing to connect the knife or the bat with the assault on Tay.

144 The appellant emphasised that there was very little blood found on the appellant. It was largely confined to the blood that was found on his feet, which may have been expirated blood. The appellant submitted that the prosecutor, after trying to maintain that there was no expirated blood on the appellant, later sought to submit that if it was expirated blood this happened at about the time of the assault. I have already discussed this submission. It was further submitted that if this was the case the jury would be left with the circumstance that the appellant had only expirated blood on his bare feet although he had just beaten Tan many times with the bat and stabbed him several times. There is no evidence to suggest that the appellant washed himself before (as it were) he got the expirated blood on his feet, or at any other time. On the Crown case he must have deliberately smeared blood on his hands (to appear as if he checked Tan’s pulse) and blood on his feet which was expirated blood from Tan (of which he was unaware) but had washed other blood off after the killing. It was submitted that this scenario was very unlikely.

145 It was further submitted that if the appellant had the motive suggested by the Crown relating to unpaid rent it was difficult to see why he would have kept the post-it note which was said to confirm the motive. The Crown case was that the killing of Tay was planned in advance and that the appellant had about 2 hours to contemplate killing Tan. In these circumstances it was submitted that it was odd and indeed most unlikely that the appellant would have retained the evidence of the motive. In the same way, the appellant submitted that it was odd that if the bat was purchased two days earlier for the purpose of killing Tay, the appellant had kept the receipt. The appellant further asks why would he have barricaded himself in his room (but leave the keys outside), pretended to have ventured out, pretended to have shut the back door, pretended to have seen both people dead, pretended to have taken Tan’s pulse and then pretended to have taken the baseball bat back to his room.

146 I accept that these matters raise questions which a jury would need to carefully consider. However, I am not persuaded that this Court should enter a verdict of acquittal. There is evidence upon which a jury properly instructed could convict the appellant. The confusion about the nature and role of lies in the analysis of the Crown case was such that in my view the trial miscarried. The problems in relation to the blood on the appellant’s feet raise additional issues. The jury at a new trial if properly instructed both as to lies and as to the evidence of blood, will have the opportunity to consider whether the Crown can establish to the requisite standard that the appellant killed the deceased.

Sentence appeal

147 The sentences imposed by the trial judge were determined by reference to the facts which his Honour found in a manner consistent with the jury’s verdict. Fundamental to those facts was a finding that the killing of Tan was pre-mediated and deliberately undertaken and committed in order to remove a potential incriminating witness from the scene in an attempt to avoid justice. A finding of that nature could justify a life sentence which was the sentence which his Honour imposed. However, because I am of the view that a new trial should be conducted it would not be appropriate to further consider the issues which might arise in relation to the matter of the sentences.

Orders

148 In my view the appeal should be upheld and the conviction quashed. A new trial should be ordered.

149 BLANCH J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

**********

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Citations

Tiwary v The Queen [2008] NSWCCA 319

Most Recent Citation

Tiwary v R [2012] NSWCCA 193

Cases Citing This Decision

2

R v Tiwary [2009] NSWSC 1415

Tiwary v R [2012] NSWCCA 193

Cases Cited

2

Statutory Material Cited

0

Steinberg v Federal Commissioner of Taxation [1975] HCA 63

Shepherd v The Queen [1990] HCA 56

CITATION:	Tiwary v R [2008] NSWCCA 319
HEARING DATE(S):	16 October 2008
JUDGMENT DATE:	17 December 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Blanch J at 149; Hislop J at 150
DECISION:	1. Appeal upheld 2. Conviction quashed 3. New trial ordered.
CATCHWORDS:	CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - misdirection and non-direction - presentation of defence case and Crown case and review of evidence - circumstantial case - consciousness of guilt - Crown prosecutor's address on lies as consciousness of guilt - whether trial judge adequately directed jury on consciousness of guilt - whether trial judge adequately directed jury on evidence of blood on appellant's feet - whether trial miscarried - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - particular grounds - unreasonable or insupportable verdict - CRIMINAL LAW - appeal and new trial and inquiry after conviction - appeal and new trial - appeal against sentence - appeal by convicted persons - application to reduce sentence - not appropriate to consider sentencing issues as new trial ordered
CATEGORY:	Principal judgment
CASES CITED:	Edwards v R (1993) 178 CLR 193 Shepherd v R (1991) 170 CLR 573
PARTIES:	Ram Puneet Tiwary (Appellant) The Crown
FILE NUMBER(S):	CCA 2005/3786
COUNSEL:	T A Game SC (Appellant) L Babb SC/M Rabsch (Crown Advocate)
SOLICITORS:	Giddy & Crittenden (Appellant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2005/1899
LOWER COURT JUDICIAL OFFICER:	Adams J
LOWER COURT DATE OF DECISION:	6 November 2006