Wood v The Queen
[2012] NSWCCA 21
•24 February 2012
Court of Criminal Appeal
New South Wales
Case Title: Wood v R Medium Neutral Citation: [2012] NSWCCA 21 Hearing Date(s): 22 August 2011 Decision Date: 24 February 2012 Jurisdiction: Before: McClellan CJ at CL at [1]
Latham J at [810]
Rothman J at [820]Decision: 1. Leave to appeal is granted and the appeal is upheld and the conviction is quashed.
2. Order the entry of a verdict of acquittal.Catchwords: CRIMINAL LAW - appeal - conviction - unreasonable verdict - unsupported by the evidence - circumstantial evidence - circumstantial evidence to be considered as a whole -reasonable doubt on independent assessment of the evidence - jury advantage in hearing evidence insufficient to resolve reasonable doubt.
CRIMINAL LAW - appeal - conviction - identification evidence - probative value - "displacement effect" - appropriate directions - whether evidence of similar appearance is identification evidence. CRIMINAL LAW - appeal - conviction - expert evidence - identification and proof of assumptions by admissible evidence - qualification of expert - weight to be given to expert evidence.
CRIMINAL LAW - appeal - conviction - expert evidence - breach of Expert Witness Code of Conduct - whether breach of Expert Witness Code of Conduct goes to admissibility or weight - discretionary exclusion of evidence of expert who breaches Code of Conduct.
CRIMINAL LAW - appeal - conviction - evidence - admissibility - relevance.
CRIMINAL LAW - appeal - conviction - whether a conclusion of fact is an indispensable intermediate fact - need for a Shepherd direction - Shepherd direction not required.
CRIMINAL LAW - appeal - conviction - whether trial miscarried because of prejudice occasioned by the Crown prosecutor - prosecutor's duty of fairness - whether prosecutor breached trial judge's ruling - whether prosecutor invited jury to invert the onus of proof - whether prosecutor impermissibly gave personal opinions - whether prosecutor misrepresented evidence - whether prosecutor failed to adhere to case theory.
CRIMINAL LAW - appeal - conviction - joint criminal enterprise - need for evidence of enterprise and participation by the accused.
CRIMINAL LAW - evidence - lack of evidence to support motive - dangers of inviting speculation as to motive - whether unfair prejudice occasioned.
CRIMINAL LAW - new and fresh evidence - evidence not disclosed by prosecution at time of trial.Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Appeal Rules
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)
Legal Profession Act 2004 (NSW)
New South Wales Barristers' Rules
Supreme Court Rules 1970
Uniform Civil Procedure Rules 2005Cases Cited: Alexander v The Queen [1981] HCA 17; (1981) 135 CLR 395
Aslett v R [2009] NSWCCA 188
Australian Securities and Investments Commission v Rich (2005) 190 FLR 242; [2005] NSWSC 149
Australian Securities and Investments Commission v Rich (2005) 218 ALR 764; [2005] NSWCA 152
Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50
Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
Boucher v The Queen (1954) 110 CCC 263
Burrell v R [2009] NSWCCA 163
Causevic v R [2008] NSWCCA 238; 190 A Crim R 416
Chahine v R [2006] NSWCCA 179
Chamberlain [No 2] v The Queen[1984] HCA 7; (1984) 153 CLR 521
Cittadini v R [2009] NSWCCA 302
Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980
Cooper v R [2011] NSWCCA 258
Cornwell v The Queen [2007] HCA 12; 231 CLR 260
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 85 ALJR 694
Davies and Cody v The King [1937] HCA 27; [1937] 57 CLR 170
Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555
Festa v The Queen[2001] HCA 72; (2001) 208 CLR 593
FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
GDD v R [2010] NSWCCA 62
Gonzales v R [2007] NSWCCA 321; 178 A Crim R 232
Grey v The Queen [2001] HCA 65; (2001) 75 ALJR 1708
Halloway v Feeters (1950) 94 CLR 450
Haoui v R [2008] NSWCCA 209
HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
HML v The Queen [2008] HCA 16; (2008) 235 CLR 344
James v Keogh (2008) 101 SASR 42
Kanaan v The Queen [2006] NSWCCA 109
Khoury v R [2011] NSWCCA 118
Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495
Lawteal Finance v Chrapacz [2010] NSWSC 73
Li v R (2003) 139 A Crim R 281; [2003] NSWCCA 290
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
Livermore v R [2006] NSWCCA 334; (2006) 67 NSWLR 659
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367
Meadow v General Medical Council [2006] 2 WLR 286
Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163
National Justice Cia Naviera SA v Prudential Assurance Co Ltd (The Ikarian Reefer) [1993] 2 Lloyd's Rep 68
Pan Pharmaceuticals Ltd (in liq) v Selim [2008] FCA 416
Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844
Peacock v The King [1911] HCA 66; (1911) 13 CLR 619
Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234
R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356
R v Agkul (2002) 5 VR 537; [2002] VSCA 222
R v Ali (2001) 122 A Crim R 498; [2001] NSWCCA 218
R v Anderson (Hilton Bombing Case) (1991) 53 A Crim R 421
R v Blick [2000] NSWCCA 61; (2000) 111 A Crim R 326;
R v Carusi (1997) 92 A Crim R 52
R v DDR (1999) 99 A Crim R 327; [1998] 3 VR 580
R v Harris [2006] 1 Cr App R 5
R v Hillier [2007] HCA 13; [2007] 228 CLR 618
R v Hodge 2 Lewin C.C. 227
R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271
R v Keenan [2009] HCA 1; (2009) 236 CLR 397
R v KNP [2006] NSWCCA 213; (2006) 67 NSWLR 227
R v Liristis [2004] NSWCCA 287; (2004) 146 A Crim R 547
R v McCullough (1982) 6 A Crim R 274; (1982) Tas R 43
R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127
R v Roulston [1976] 2 NZLR 644
R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1
R v Skaf [2004] NSWCCA 37
R v Taylor, Weaver and Donovan (1928) 21 Cr App R 20
R v Wood [2008] NSWSC 1273
Ramsay v Watson [1961] HCA 65; (1961) 108 CLR 642
Rasic v The Queen [2009] NSWCCA 202
Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510
Richardson v The Queen [1974] HCA 19; (1974) 131 CLR 116
RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620
Sever v R [2010] NSWCCA 135
Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573
SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400
Stanton v Callaghan [2000] QB 75
Sydney South West Area Health Service v Stamoulis [2009] NSWCA 153
Tran v The Queen (2000) 105 FCR 182; [2000] FCA 1888
United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870
Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402
Whitehorn v The Queen [1983] HCA 42]; (1983) 152 CLR 657
Whitehouse v Jordan (1981) 1 WLR 246Texts Cited: Starkie on Evidence, 3rd ed., published in 1842
Category: Principal judgment Parties: Gordon Wood (Applicant)
CrownRepresentation - Counsel: T A Game SC/G A Bashir/J King (Applicant)
W Abraham QC/J A Girdham/G Turner (Crown)- Solicitors: Michael Bowe Solicitor (Applicant)
Solicitor for Public Prosecutions (Crown)File number(s): 2007/1675 Decision Under Appeal - Court / Tribunal: - Before: Barr J - Date of Decision: 04 December 2008 - Citation: - Court File Number(s) Publication Restriction:
JUDGMENT
McCLELLAN CJ at CL : Ms Caroline Byrne died on the night of 7 June 1995. Her body was recovered from the rocks at the Gap at Watsons Bay in Sydney early the following morning. At the time the assumption was made that, like many others had done before her, she committed suicide by jumping from the cliff top. A coronial inquest was held in November 1997. The Coroner returned an open finding in February 1998.
Eleven years after Ms Byrne died, on 3 May 2006, Gordon Wood, who I shall refer to as the applicant, was charged and subsequently convicted of her murder. He had been living with Ms Byrne at the time of her death and was the first to raise the alarm concerning her wellbeing. Although suspicion attached to him, and some of his actions at the time caused Caroline's father and other members of her family to have doubts as to whether he had been somehow involved in her death, the objective facts were apparently considered to be insufficient for the authorities to take any action.
However, controversy remained. The newspapers wrote articles about the case. The applicant was interviewed on the television program "Witness" in 1998 and the matter was raised in the State Parliament.
At the time of Ms Byrne's death, the applicant was employed by Mr Rene Rivkin. Rivkin was a person whose personal and professional life attracted publicity, not all of which was favourable. There were suggestions that a fire at a business in which he had an interest, the Offset Alpine Printing Company (Offset Alpine), may have been deliberately lit so that the insurance could be recovered. The rumours surrounding Offset Alpine linked Rivkin with Mr Graham Richardson, a former member of the Australian Parliament who was a person who attracted significant publicity.
There is some evidence which the Crown argued placed the applicant and Ms Byrne in Robertson Park, adjacent to the Gap, between 1 pm and 3 pm in the afternoon of 7 June 1995. There is further evidence (from Mr John Doherty - a local resident) which the prosecution suggests indicated, contrary to his account, that the applicant, with another man, was at the Gap with Ms Byrne during the evening when Ms Byrne died. It will be necessary to carefully consider the reliability of this evidence.
There is evidence which may be accepted that Ms Byrne fell to her death at about 11.30 pm. The applicant said he was at home at that time.
For a number of years the police were unable to establish with any confidence how Ms Byrne left the cliff top and got lodged in the rocks below. The location from which the body was retrieved was identified by Sgt Mark Powderly, who was the first person to locate her. He descended from the cliff top and was on the rock shelf alone for some time until he was assisted by Snr Const Lisa Camwell to retrieve the body. There is controversy as to whether the location which Sgt Powderly originally identified in 1996 was the correct position or whether it was only in 2004 that the correct spot was identified.
There was no eyewitness to Ms Byrne's fall. The Crown prosecutor accepted at the trial that unless the prosecution could exclude the reasonable possibility that Ms Byrne had committed suicide, a prosecution for murder or even manslaughter could not be sustained. There is continuing controversy as to whether she could have jumped or been thrown to the location where her body was retrieved.
Doherty did not come forward until some three years after Ms Byrne's death. Although his evidence was important to the Crown case it is now apparent that it was because of the efforts of A/Prof Rod Cross, an engineer, that the police were able to make progress towards a prosecution. Coincident with the request from the police for A/Prof Cross to become involved in the investigation came a questioning of the location at which Ms Byrne's body was found. The position identified by Sgt Powderly in 2004 has been referred to as "the hole" or "hole A" and I shall use those terms. Hole A is located adjacent to a large pyramid-shaped rock at the base of the Gap. It has been referred to as "Pyramid Rock". The location - known as "hole B" - was the location originally identified by Sgt Powderly. He confirmed his identification of hole B as the position where Ms Byrne's body was found in a police video made for publicity purposes in 1996.
Although it would seem unusual, the police apparently took no photographs of the scene at the time of Ms Byrne's death and the spot where her body was located was not the subject of any contemporaneous record.
Although Sgt Powderly changed the location in which he believed the body was found, it is significant that he did not change his opinion as to the point from which Ms Byrne left the cliff top. He said that he identified that point having regard to the orientation of Ms Byrne's body when looking from the rocks back up to the top of the cliff while he was waiting for assistance. He waited for approximately 45 minutes.
A/Prof Cross became intensely interested in the problem of how Ms Byrne met her death. Although it had been assumed that she committed suicide, he set about determining whether she could have been thrown from the cliff. Following the identification of hole A in 2004 he accepted that hole A was the correct position of the body and conducted a series of not particularly sophisticated experiments to establish whether Ms Byrne could have jumped or been thrown to that location. The experiments involved strong men throwing women into swimming pools and throwing dead weights, as well as fit and able-bodied young women jumping and diving into pools. A/Prof Cross was satisfied that a strong, fit man could have thrown a woman of Ms Byrne's weight from near the bend in the safety fence on what has become known as the "northern ledge" to hole A. A/Prof Cross also produced calculations from which he concluded that a person of Ms Byrne's assumed athletic ability could not have jumped, even with a running start, from the "northern ledge" to hole A with a run up of 4 metres, which was the run-up distance which was assumed to be available. However, he calculated that with the available run up it was possible for a strong man, using a "spear throw" technique to have thrown Ms Byrne to hole A without also falling off the cliff top as he threw her.
There was a debate at the trial as to whether, before they could convict the applicant, the jury had to be satisfied, beyond reasonable doubt, that the applicant used a "spear throw" and that Ms Byrne lodged on the rocks at hole A. It was submitted that without being satisfied of those facts suicide could not be excluded. The trial judge declined to give a Shepherd direction (namely, a direction that a particular fact was to be proved beyond reasonable doubt: Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 in relation to this and other issues.
The actions of and statements made by the applicant before Ms Byrne died, on the night of the tragedy and in later interviews, require careful consideration. It would seem that he lied about some matters. Certainly his behaviour was at times unusual. Nevertheless, the trial judge ruled that the Crown could not use any alleged lie as a consciousness of guilt lie, a ruling about which there is no controversy. There could be little doubt that the applicant's behaviour at the time would have been of considerable interest to the jury.
The applicant and Ms Byrne had lived together for some time. Their relationship had previously foundered, primarily because the applicant had been unable to secure significant employment. The relationship was renewed when the applicant found employment as a driver for Rivkin. He boasted of his future financial prospects because of his involvement in the Rivkin enterprise and the knowledge of the operation of "markets" which he would gain.
The evidence about the state of the relationship between Ms Byrne and the applicant at the time of Ms Byrne's death points in different directions. There was evidence which indicated that the relationship was close and happy. There was other evidence which suggested that Ms Byrne was unhappy and wished to terminate the relationship.
At the time, Rivkin was embroiled in the controversy surrounding the share dealings in Offset Alpine Printing. In the weeks before Ms Byrne's death, the applicant had travelled overseas with Rivkin to speak with bankers in Switzerland. On the day before Ms Byrne's death, the applicant gave evidence about the matter to an ASC inquiry.
There was evidence at the trial that Ms Byrne was suffering depression at the time she died. She consulted a doctor on the Monday before her death and was referred to a psychiatrist, the appointment being on the following Wednesday. She died that day without seeing the psychiatrist. She had previously attempted to commit suicide.
The prosecutor advanced a motive for the applicant to kill Ms Byrne. It was entirely speculative and internally inconsistent. The trial judge when sentencing made plain that he did not accept the Crown's theory. The prosecutor told the jury that the applicant may have killed Ms Byrne because she had told the applicant that she wanted to terminate their relationship. For this theory the Crown accepted that the applicant was in love with Ms Byrne and did not want this to happen. However, it was also suggested by the Crown that the applicant believed that Ms Byrne knew details about the "Offset Alpine Printing scandal" which she might disclose to an unnamed person and, if this happened, Rivkin would blame the applicant and he would then lose his job. In effect, the prosecution hypothesised that although it meant killing the person he loved, the applicant chose to do this rather than lose his job. There was no suggestion that the applicant had involved himself in suspect dealings in the shares but it was in effect suggested that he chose to kill Ms Byrne to protect Rivkin. The prosecution called evidence to suggest that, on the afternoon Ms Byrne died, Rivkin was seen in an agitated exchange with the applicant. The content of the conversation is not known but the suggestion by the prosecutor was that Rivkin wanted Ms Byrne neutralised in some manner.
The Crown hypothesised that on the afternoon of 7 June 1995 the applicant spent time at Watsons Bay trying to persuade Ms Byrne not to leave him. His entreaties were assumed to be unsuccessful and the prosecution suggested that they fell into argument and many hours later - but still at the Gap - he killed her. Why maintaining the relationship would satisfy Rivkin that Ms Byrne would not disclose any knowledge she had in relation to the Offset Alpine Printing issue was not explained. To my mind there was nothing in the evidence which justified the prosecution's speculation with respect to the applicant's motive.
One issue which may have coloured the evidence unfavourably for the applicant concerned the suggestion of a homosexual attraction between Rivkin and the applicant. This issue was no doubt influenced by newspaper accounts of Rivkin's liking for the company of healthy young men. The Crown put into evidence through Ms Byrne's father a suggestion that the applicant and Rivkin shared a one-bedroom flat when staying in London. There was also evidence of rumour about a homosexual relationship between the two men.
There are a large number of persons referred to in this judgment. I have referred to the deceased as Ms Byrne and, so as to distinguish from his sons, to her father as Mr Byrne. I have otherwise given persons their full title when first referred to and then after referred only to their surname. I mean no disrespect to any of them.
The history of the investigation
The initial phase of the investigation into Ms Byrne's death was conducted by Sgt Craig Woods. It appears to have been cursory, no doubt explained by the fact that everyone assumed she had committed suicide. The applicant gave a statement to police on 12 June 1995 and was interviewed by Sgt Woods on 10 July 1995. Sgt Woods did not speak with Rivkin. He made unsuccessful attempts to find the fishermen who were known to have been present at the Gap on the night Ms Byrne died.
Inspector Brian Wyver first became involved in the investigation in May 1996. He interviewed the applicant on 14 June 1996. He asked A/Prof Cross to assist and, using his knowledge of physics, to express an opinion as to whether Ms Byrne may have been pushed off the cliff or jumped. The request was made towards the end of 1997. Dr Nick Linthorne was apparently asked the same question. They both expressed the conclusion that Ms Byrne may have jumped.
A Coronial Inquest commenced in November 1997. In February 1998 the Coroner returned an "open finding."
The third police investigation was headed by Det Insp Paul Jacob. He was given the job in June 1998.
In his book about the matter which was tendered and which I would admit as new evidence on the appeal, A/Prof Cross describes the circumstances under which it was recognised that hole A was in fact the "correct" landing spot of Ms Byrnes. He writes in the following terms:
"I was not 100 per cent certain about the landing spot...I called [Detective Inspector] Jacob in December 2003 about both of my concerns. I asked him how he knew they picked the right landing spot way back in 1996. His answer surprised and alarmed me. He said he didn't know...Fortunately, Jacob immediately saw the importance of what I was saying and arranged for Mark Powderly and two other police rescue officers to visit the site on 6 January 2004...I remained up the top and chatted to Mark Powderly that day. After Mark directed the rescue guys [at the bottom of the cliff] to the right spot to take their photographs, I quizzed him about the morning Caroline Byrne was found."
It was submitted by the Crown that on 6 January 2004 Sgt Powderly directed the rescuers to hole A as the "correct" landing spot.
A/Prof Cross continued:
"The day before we were to take the measurements [14 April 2004], Paul Jacob called me with some more distressing news. They were reviewing all their previous drawings and photographs and were comparing them with the photographs I had taken on 6 January 2004 when I visited The Gap with Powderly. The rocks surrounding the landing point in the 1999 photos were not the same rocks as those in the January 2004 photos. The landing point marked on the 1999 drawings and in the early photos had been marked incorrectly."
From these excerpts from the book it would appear that A/Prof Cross gave an incomplete account during his evidence at the trial. At the trial he only referred to the phone call between himself and Det Insp Jacob on 14 April 2004 and not that the January 2004 visit to the Gap was at his initiative.
Emails tendered to this Court as fresh evidence confirm that there was email communication between A/Prof Cross and Det Insp Jacob in December 2003 in which they discussed contacting Sgt Powderly. These emails are discussed further under the fresh evidence ground of appeal.
Sgt Powderly's evidence at the trial was that he realised the mistake in the identification of the hole from which Ms Byrne's body was retrieved when he watched the 1996 video which was played at the inquest. However, he said that he never told anyone about the inconsistency until he met with A/Prof Cross on 6 January 2004. Given the significance of the assumed landing spot to A/Prof Cross' calculations this is, to say the least, surprising. I would have expected that if he knew that the landing place had been misidentified he would have raised the issue when he first knew of the error.
Det Insp Jacob gave evidence at the trial that he became aware that there was some doubt about Ms Byrne's landing spot on 8 January 2004 when he was compiling a brief of evidence for the DPP. He said, "we received some images, electronic images, from Professor Rod Cross and Detective Michael Streatfield on the email system. Those arose from some work they had done at the Gap on 6 January. Those images were viewed by one of my colleagues, Bianca Comina, who raised concerns with me that they appeared different, the rock formation and the images appeared different."
As it happens the change in the landing position had significant implications for the prosecution case. The applicant submitted to this Court that this was an example of A/Prof Cross "actively participating in the making of evidence directed to traversing of the existing forensic evidence" which as a consequence caused the trial to miscarry.
Sgt Powderly gave evidence of his recollection of the location where he found Ms Byrne and the position of her body. He said:
"On the southern side of the body, there was a large sloping boulder and budding [sic] up against that with a narrow 3-inch gap is a large pyramid rock with a sandy coloured point. At the eastern end of that, there is a hole in the rocks and that was where the body was protruding from...(the body was positioned) head down, shoulders down, down to just slightly above the waist. There was no-I couldn't see the arms or the head of the deceased at that time."
When Sgt Powderly first located Ms Byrne at the base of the Gap, he conducted an examination of her distal pulse and found no sign of life. He also detected a "considerable amount of rigor mortis." He examined down her legs to the hips but could not find any protrusions of bone or distortions under the skin to indicate fractures or serious injuries; there was no blood or bleeding from the hips to the feet.
Sgt Powderly said that his recollection was that in order to see the head area, he searched for a viewing point through the rocks. He said, "I had to crouch down to a very low point and I was able to look up through like a tunnel effect and I was able to see the left arm a very small portion of the head area." Due to the danger from the water surging in the area he said that he did not try to put his head into the tunnel. He said, "My decision not to go in there at that stage because I feared if I got in and got trapped, I had no way of communicating to anyone else."
Sgt Powderly said that when he worked with the Police Rescue Squad he had retrieved "closer to 10" bodies from the base of the Gap at Watsons Bay. It must also be remembered that he was giving evidence in 2008, 12 years had passed since the video was made. He first alerted anyone to the error in the video almost 9 years after the event. By the time he gave evidence he would no doubt have rehearsed the scene in his mind many times.
Sgt Powderly described the conditions as he waited for Snr Const Camwell to join him at the base of the Gap with extra equipment. He said:
"At that hour of the morning and in the Winter, it was quite cold and I had some concerns about suffering hypothermia for myself. Prior to her coming down, I had gone and taken some shelter to try and keep dry. The water kept surging up in different areas. I don't know the size of the sea that day but I was conscious of it and that it was quite large, and that a lot of the holes around where - underneath where I was and where the body was, water kept surging up quite strongly."
He formed an opinion that "she had gone directly in, head first."
Sgt Powderly said that he waited with the body for about 40 to 45 minutes, leaning against the seaward rock as Snr Const Camwell made her way to the bottom of the cliff line with the equipment. Sgt Powderly said this retrieval was unusual. He had not seen a body which had gone into a hole before on any of his other rescues. He was surprised that there was no damage from her waist to her feet. The 40 to 45 minute delay allowed him time to observe the position and conditions. He said:
"In my own mind, my thoughts at the time were that it was just like a spear...I was surprised there was no damage from the waist to the feet...In this instance it was just - to me, it was an amazing thing that I saw that the body had gone straight into that particular crevice. And leaning back against the rock and looking at where the legs were, particularly that they weren't injured, is where I started looking at - just observations as to where the possibility that the deceased had left the cliff top. And that's why I formed the opinion that it was from basically where the feet were pointing and the legs were pointing in a straight line, were pointing at the edge of the cliff right on the corner of that fence where I conducted the third view with the Mitrolux light."
Prof John Fryer is an expert in the field of surveying and photogrammetry. He made calculations of the possible dimensions of Ms Byrne's body from photographs and some of her personal belongings. He compared his calculations to the measurements of a mannequin who was used to model the scene where Ms Byrne was apparently found at the base of the Gap. Prof Fryer concluded that the shoulder width of the mannequin was 15mm wider than Ms Byrne's likely shoulder width, the total width was 20mm wider than Ms Byrne and the wrist circumference was 8mm larger than Ms Byrne. Prof Fryer concluded that Ms Byrne's shoulder width ranged from 342 mm to 353 mm, most probably 345 mm. However, the armpit-to-armpit measurement of the mannequin was apparently 20 mm smaller than Ms Byrne.
The evidence before this Court makes plain that A/Prof Cross placed considerable emphasis on his assumption as to the width of Ms Byrne's shoulders to conclude that she did not end up in hole B. In his fourth report into the murder, which was tendered on the appeal, A/Prof Cross concluded, "the incorrect cavity (hole B) is too narrow at the base and too wide at the top to allow for any wedging at all. The width of a female across the shoulders is typically about 40 to 43 cm, while the incorrect cavity is about 40 cm wide at the top and narrows to about 30cm at the bottom." A/Prof Cross's assumption was clearly wrong. It casts considerable doubt, at least on this aspect of A/Prof Cross's thesis. The problem was reinforced in the Crown's closing address. The prosecutor told the jury: "the mannequin was able to comfortably fit very snugly in hole A but was not able to go into hole B."
A/Prof Cross made a number of written reports during the course of his investigation. They were tendered to this Court. In his first report dated 19 November 2003, A/Prof Cross made calculations and assessments based on the landing spot of Ms Byrne's body as being hole B. His initial conclusion was that "the most likely cause of death was that Caroline Byrne ran over the edge of the cliff in the dark at a point 8m south of the safety fence. There is a 20 m long approach to this point from the west fence where the cliff top is flat and level and relatively free of obstructions." In his subsequent reports he concluded that Ms Byrne left the cliff top from a location referred to as the "northern ledge" and that hole A was the "correct" landing spot.
As I have previously indicated, A/Prof Cross carried out a number of experiments to assess whether or not Ms Byrne could have jumped to her death or been thrown. They were not sophisticated and I have considerable reservations about the assistance they can provide. He set up experiments in which cooperative females were thrown by strong men into a swimming pool. His purpose was to measure the speed at which they were launched so that he could attempt to calculate how far out from the edge of the cliff they would have travelled before hitting the rocks below. His experiments were based upon the assumption that the person who threw Ms Byrne was able to take some forward steps before launching her, that Ms Byrne was conscious, not struggling and, furthermore, did not attempt to grab hold of the thrower or free herself from his or her grasp. Apart from the possibility that Ms Byrne was conscious, I do not believe that any of these assumptions are reasonable. Although in his experiments the thrower did not in most cases end up also falling into the pool, the risk of doing so on a dark night with a struggling victim over an uneven surface would have been very great. I doubt that someone would take that risk.
A/Prof Cross concluded that the only way that Ms Byrne could have ended up in hole A was if she was thrown by a "spear throw" from a very strong man. He said that he understood that the applicant could bench press 100 kilograms. He believed that under ideal conditions such a person would have been sufficiently strong to have thrown Ms Byrne the necessary distance.
Once A/Prof Cross had reached this conclusion, it was decided to prosecute the applicant for murder. The prosecution reasoned that this evidence, together with the evidence of Doherty, was sufficient to exclude the possibility that Ms Byrne committed suicide and to implicate the applicant in her murder.
Apart from Ground 1, which requires an examination of the entirety of the evidence, the other grounds raise discrete issues including the admissibility of fresh and new evidence and, if admitted, the consequence of that evidence. The grounds of appeal are:
Ground 1: The verdict is unreasonable and cannot be supported by the evidence.
Ground 2: A miscarriage of justice was occasioned by the directions given by the learned trial judge in relation to:
a. The positive identification evidence of Martin and Melbourne relied on as day time sightings of the applicant and Ms Byrne at Watsons Bay; and/or
b. The evidence of Mr Doherty and Miss Kingston relied on by the prosecution as night time sightings of the applicant and Miss Byrne.
Ground 3: The evidence and the opinions of A/Prof Cross caused the trial to miscarry.
Ground 4: His Honour erred in rejecting evidence showing rocks at the base of the Gap being covered in water, and movement of water over the rocks, as being irrelevant to the trial.
Ground 5: His Honour erred in law in declining to identify for the jury and direct as to the intermediate facts requiring proof beyond reasonable doubt in accordance with Shepherd v The Queen (1990) 170 CLR 573.
Ground 6: The trial miscarried by reason of the prejudice occasioned by the Crown Prosecutor.
Ground 7: The trial judge erred both in leaving murder on the basis of joint criminal enterprise to the jury and in failing to identify properly the basis upon which any such verdict should be reached.
Ground 8: The learned trial judge erred in allowing the Crown to present evidence and make submissions suggesting that the deceased's knowledge of details relating to the Offset Alpine fire was a motive for the offence of murder.
Ground 9: There has been a miscarriage of justice in the trial of the applicant on account of fresh evidence and evidence undisclosed at the trial.
Ground 1: The verdict is unreasonable and cannot be supported by the evidence.
Preliminary matters
The Criminal Appeal Act 1912 provides an appeal to this Court as of right in relation to an appeal on a ground which involves a question of law alone: s 6. Otherwise the leave of the court is required including when it is submitted that the jury's verdict was unreasonable: Rasic v R [2009] NSWCCA 202 at [12]. The correct approach to the determination of whether a jury's verdict is unreasonable or cannot be supported has been discussed on many occasions. Most recently in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 the High Court said at [11]-[14]:
"It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v R [(1994) 181 CLR 487 at 493] by Mason CJ, Deane, Dawson and Toohey JJ:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act . In MFA v R [(2002) 213 CLR 606 at [58]], McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as 'unreasonable' or such as 'cannot be supported, having regard to the evidence'.
The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M went on to say:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
...
In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act , by applying the test set down in M and restated in MFA , the Court is to make "an independent assessment of the evidence, both as to its sufficiency and its quality". In M , Mason CJ, Deane, Dawson and Toohey JJ stated [at 492-493]:
In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".
The case against the applicant was entirely circumstantial. That is to say, it relied solely upon evidence of facts from which the jury was asked to draw inferences, which in turn were said to provide the foundation for the ultimate fact in issue - namely, whether or not the accused killed Ms Byrne.
A case is not defective or bound to fail merely because it relies upon circumstantial evidence to the exclusion of direct evidence. The strength of circumstantial evidence lies in its ability to show that, "according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed": Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375 (Dixon J). It has been said that "circumstantial evidence is very often the best [evidence]": R v Taylor, Weaver and Donovan (1928) 21 Cr App R 20 at 21 (Hewart LCJ).
When, as here, the case against the accused is entirely or substantially circumstantial, "the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused": Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82 at 104 (Gibbs, Stephen and Mason JJ) citing Peacock v The King [1911] HCA 66; (1911) 13 CLR 619 at 634; see also Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 252. That statement of principle is uncontroversial. It is really "no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt": Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495 at 502 (Mason CJ, Dawson and Toohey JJ) quoting Shepherd at 578 (Dawson J).
At the same time, the trier of fact must bear in mind that a circumstantial case is to be considered holistically: R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]-[49] (Gummow, Hayne and Crennan JJ). Putting to one side for the moment "indispensable" intermediate facts (as to which see Ground 5), it would be wrong for a jury to acquit an accused merely because it harbours reasonable doubts about some inculpatory evidence, though it ignores or unduly minimises other, more compelling evidence of the accused's guilt. As it is often the case that "one piece of evidence ... resolves doubts as to another" ( Chamberlain v The Queen [No 2] [1984] HCA 7; (1984) 153 CLR 521 at 535 (Gibbs CJ and Mason J)), it is necessary to weigh and consider the totality of the evidence: Hillier at [48]-[49]. In doing so, the finder of fact ought not stretch credulity or engage in tortuous reasoning in order to explain away each and every individual circumstance as being consistent with innocence: R v Micallef [2002] NSWCCA 480; (2002) 136 A Crim R 127 at [42] (Dunford J); Burrell v R [2009] NSWCCA 193 at [55] (Giles JA).
The Crown argued that the applicant's submissions ignored the cumulative force of the evidence, contrary to the High Court's warning against doing so in Hillier . It was submitted that the applicant placed undue emphasis on the conflicting expert evidence to keep alive the possibility of suicide: "That is, [the applicant argued] if it was physically possible for Ms Byrne to do a running dive to wherever she landed, then the Applicant must necessarily be not guilty."
As the discussion below indicates, I do not accept this submission. The applicant pointed to a number of factors, which in his submission, established a reasonable hypothesis consistent with his innocence. Among these were the unreliability of the identification evidence; the deceased's depression and previously attempted suicide; the ambivalence of the expert evidence with respect to whether Ms Byrne could have jumped from the cliff top or been thrown from there to where she landed; the illogicality of the prosecution's argument that the applicant had "esoteric knowledge" of the circumstances surrounding Ms Byrne's death; and, finally, evidence which gave rise to the reasonable possibility that, if Ms Byrne was thrown to her death, the applicant was not the person responsible (either alone or jointly) for the act causing her death.
In the analysis that follows, I have resisted any temptation to consider the case against the accused in a piecemeal way. In my view, this is a case where doubts about each piece of circumstantial evidence are reinforced, rather than resolved, by the rest of the prosecution's case. I have also borne in mind the deference due by an appeal court to the combined experience and commonsense of a jury that convicts an accused person on the basis of circumstantial evidence alone: Burrell at [64]-[65] (Giles JA); Chahine v R [2006] NSWCCA 179 at [88] (Johnson J, McClellan CJ at CL and Hoeben J agreeing); R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271 at [2] (Dunford J). However, my evaluation of the whole of the evidence satisfies me that the jury's verdict cannot be supported. I am not satisfied beyond reasonable doubt of the applicant's guilt. Although the jury heard from various witnesses the applicant did not give evidence. I do not believe the jury's verdict can be explained by any advantage which they had which was not available to this Court.
The Crown case at trial was that at approximately 11.30 pm on the night of Wednesday, 7 June 1995, the applicant acting either alone, or jointly with a second man, threw the deceased off the Gap at Watsons Bay.
In his opening address the prosecutor proffered the applicant's motives. Although proof of motive is not essential to a prosecution case it bears upon whether an accused has committed the crime with which they are charged: HML v The Queen [2008] HCA 16; (2008) 235 CLR 344 at [5]. The first motive was said to come from the applicant's concern about Ms Byrne's knowledge of Rivkin's dealings with Offset Alpine about which there were suspicions of dishonest dealings and in respect of which an inquiry had been initiated by the Australian Securities Commission. The Crown prosecutor hypothesised that Ms Byrne was "about to do untold harm" to the relationship between the applicant and his employer, Rivkin, thus putting the relationship between the applicant and Rivkin in jeopardy with the consequence that the applicant would lose bonuses and other financial windfalls that he expected to receive.
Between 7 and 27 May 1995 the applicant and Rivkin travelled to Zurich and London on business apparently related to Offset Alpine. By this time it had been announced that there would be an ASC inquiry into that issue and the matter had received some publicity which was not favourable to Rivkin. There was evidence that the applicant had suggested to various people that an investment in Offset Alpine (which was a publicly listed company) would bring substantial returns because the insurer was about to pay out on a claim for the destruction of the premises in a fire. Although the evidence indicated that the applicant encouraged others to invest, he did not himself acquire any shares.
The second motive advanced by the prosecutor, which was, as I understand it, not unconnected with the first, was that the relationship between the applicant and Ms Byrne had deteriorated to such an extent that Ms Byrne wanted to terminate it and, being distressed at the thought of losing her, the applicant chose to kill Ms Byrne.
These motives were significantly elaborated by the prosecutor in his closing address.
The admissibility of evidence with respect to Offset Alpine and the availability of a motive relating to Ms Byrne's knowledge of the circumstances surrounding its affairs were unsuccessfully challenged by defence counsel at the trial. The applicant challenges the trial judge's ruling which is discussed below in relation to Ground 8. The trial judge rejected the suggested motive when sentencing the applicant: R v Wood [2008] NSWSC 1273 at [15]-[19]. For reasons which I will explain I have come to the same conclusion. Barr J also rejected the proposition that the crime was premeditated. His Honour found that there was a heated argument on the night of 7 June 1995 resulting in Ms Byrne's death. This, as it happens, was the only finding which the evidence would allow consistent with the jury's verdict.
Although, if it be assumed that Ms Byrne was killed by the hand of another, the applicant was reasonably suspected of being involved, the evidence falls short of persuading me beyond reasonable doubt that he was present or participated in a criminal act. Furthermore, the Crown has not excluded as a reasonable possibility open on all the evidence that Ms Byrne did not commit suicide. There is considerable evidence which suggests that she was suffering significantly from depression at the time. The Crown prosecutor accepted that it was an essential element of the Crown case that the jury must exclude the possibility that Ms Byrne committed suicide.
There was evidence that Ms Byrne was suffering from depression at the time that she died. She was described by her general practitioner two days before she died as "very, very depressed." The evidence indicated that she had previously suffered from an episode of depression for which she was prescribed medication to which she successfully responded. She had previously attempted to commit suicide and her mother died from her own act. The evidence indicated that the fact that Ms Byrne's mother had previously committed suicide was not irrelevant to the possibility that Ms Byrne may have taken her own life.
The relationship between the applicant and Ms Byrne -
evidence of problems
Ms Byrne and the applicant had known each other for some time. They met in 1991 at a gym where the applicant worked as a casual fitness instructor. Ms Byrne was then a full-time model. They lived together in a flat at Kings Cross for about 6 months but their relationship was troubled and Ms Byrne terminated it. She took this course because of her concern that the applicant did not have a job and his future prospects were uncertain. The relationship was renewed when the applicant obtained employment with Rivkin, working as a driver and performing other tasks. They again commenced living together in an apartment in Elizabeth Bay in early 1994.
The applicant and Ms Byrne decided to buy an apartment but needed financial assistance to facilitate the purchase. It was originally intended that Ms Byrne's father, Mr Tony Byrne, and Rivkin would assist with the financing. However, Mr Byrne only agreed to assist if he alone was on the title and his own solicitor did the conveyancing, conditions which Rivkin did not accept. As a consequence Mr Byrne withdrew his offer and Rivkin purchased the apartment in his own name. These events soured the relationship between the applicant and Mr Byrne, who also formed an unfavourable opinion of Rivkin. The applicant expressed confidence at the time that his work with Rivkin would prove financially rewarding and he would soon be able to own the unit in his own right.
Ms Byrne and the applicant lived together in the apartment. The applicant was keen for them to be married although the evidence suggests that Ms Byrne was not ready for that level of commitment. In April 1995 Ms Byrne's sister Deanna left Australia for Japan. Before she left Ms Byrne told her sister that she and the applicant had argued because he was putting pressure on her to get married but Ms Byrne did not feel ready to take this step:
"She told me that she - that Gordon was putting pressure on her to marry. And they had a little argument about it, because she said she's not ready for it, she was still too young."
Between the middle and end of April, Mr Tony Byrne said that he had a conversation with Ms Byrne, "She said that their relationship was being under a lot of strain because Gordon was putting pressure on her to marry him and she went on to say that, 'No, I love Gordon, and there's nobody else but as you know daddy, I'm quite - happy with my life at the moment. I love my work, I love the modelling and Gordon doesn't want me to work. He just wants me to stay at home and he'd just look after me. And it is putting a lot of stress and strain on our relationship because of this."
Ms Byrne's brother, Peter Byrne, gave evidence of similar conversations with Ms Byrne in mid-April 1995.
Deanna, Mr Robert Byrne (the other of Ms Byrne's brothers) and Ms Kylie Watson, a former student and good friend of Ms Byrne, gave evidence in which they suggested that the applicant bordered on being obsessive of Ms Byrne and that he wanted to know where she was at all times and who she was with.
Deanna Byrne also said that the applicant constantly called Ms Byrne whenever he was not with her. She said, "He was constantly calling her. Just wanted to know where she was, who she was with. I found it a bit overbearing." However she did accept that "Caroline didn't seem to mind."
There was evidence from Watson that she thought that the amount of calls that the applicant made to Ms Byrne was "a little bit excessive but that being the age that I was, which was about 17, I think at the time I was still quite young and naïve...but in retrospect it was definitely a lot."
Ms Byrne's former boyfriend, Mr Andrew Blanchette, gave evidence that there was gossip around the City Gym that the applicant and Rivkin were in a gay relationship. Mr Byrne said he knew the rumours were having an effect on his daughter. The applicant, in an interview he gave to the "Witness" program on commercial television, acknowledged that there was gossip to that effect but stated that "I don't think she ever suspected that I was having an affair with Rene ... [but] she probably didn't trust him [meaning Rivkin]."
In the week before her death, Ms Byrne and her father were in discussion about her employment situation. Mr Byrne said that this conversation was disrupted by a phone call that Ms Byrne received. After the call she said, "I'll have to go. That was Gordon. I have to go. He's in a shitty mood."
Ms Christine McVeigh, sales assistant at the City Gym, said she saw an argument between the applicant and Ms Byrne at the gym on 2 June 1995 (the Friday before she died) at about 8.30 pm. McVeigh said "I heard sobbing, I looked over and I saw Caroline in the corner...She was pulled back in the corner with her hands up and she was sobbing quite hysterically. Gordon was standing very close to her. I didn't take a great deal of notice of what was being said until I heard Gordon say something quite aggressively to her. " McVeigh said that the applicant said, "You're a fucking idiot Caroline." She described the applicant as "angry, confrontational, very, very close to Caroline - almost too close for comfort. He seemed to be dominating the situation completely." McVeigh said, "I didn't see any physical contact."
McVeigh was certain that there were two other people present during the argument, Mr Gary Redding and his girlfriend, Ms Arianne De Geus. McVeigh said that Redding "paid for casual entry" to the gym . She observed them for a few minutes and returned to the reception area and commented to Ms Glenda Williams about what she had seen. Williams confirmed that McVeigh had spoken to her about what she had just seen. Williams said, "She [McVeigh] said something - I'm not 100 per cent exactly but she said something about Gordon Wood having an argument with Caroline and he was being a bit rough with her." Williams recalled seeing "Caroline run out the gym crying" after having that conversation with McVeigh.
Following an earlier ruling disallowing other parts of De Geus' evidence, she was not called by the prosecutor in the trial although he later conceded in the absence of the jury that "If asked, she would give evidence that she witnessed no such event." Following an application under s 38 of the Evidence Act 1995, McVeigh was cross-examined by the prosecutor to establish De Geus was not there. However, McVeigh insisted she was present.
I have considerable reservation with respect to the reliability of McVeigh's recollection so many years after the event. I accept that such an event may have occurred at some time but doubt that, if it did occur, it was on this Friday evening.
Ms McVeigh's evidence was contradicted at the trial. Redding said it was not possible for there to have been an occasion in 1995 when he was present at the gym as he had not been there since 1994. He said that he only met Ms Byrne once, which was at Rivkin's home.
I discuss later Ms Byrne's movements on the Friday. She had worked that day and was unwell. Watson expressed concerns about her health to an extent which made it unlikely that Ms Byrne would have gone to the gym on that evening.
Mr Angelo Georgio, Manager and part-owner of World Club of Fitness, gave evidence that over time he developed a friendship with Ms Byrne. Georgio said:
"She did tell me she was having some problems in her relationship, because I would always ask her how Gordon was."
Georgio said that Ms Byrne had said to him that the applicant was "a bit possessive and a bit of jealousy there." He also indicated that "she was worried about his temper, he gets angry a lot, she was saying. He wasn't the Gordon she knew."
Georgio gave evidence of a conversation with Ms Byrne that took place in April or May 1995:
"She was talking about jealousy again and how he's very possessive and I think she had sort of made up her mind that - well to my impression - that she was , the way she was saying it to me, that she was thinking about leaving him again...In that conversation I remember distinctly and again I took it as just a relationship problem, she said 'sometimes I fear for my life'. She said it like that."
In summary, it was the Crown case that by about March 1995 the relationship between the applicant and Ms Byrne was fracturing. The Crown submitted that Ms Byrne was tiring of the applicant's possessiveness and was concerned about his false promises of large bonuses and financial success from his connection with Rivkin. The Crown also asserted that she was concerned about the rumours surrounding the nature of Rivkin's relationship with various of his male associates including rumours that the applicant was in a homosexual relationship with Rivkin.
Evidence of a happy relationship
Although there was evidence that Ms Byrne may not have been happy in the relationship there was other evidence, which gave the opposite impression. The applicant returned from overseas on 27 May 1995. On that day Ms Byrne called her father who gave evidence that she said to him how wonderful it was that Gordon had come home that Saturday morning. She said, "it is wonderful. He's home. It's good to have him back home."
Miss June Dally-Watkins also saw Ms Byrne on that day. She said that although Ms Byrne had a cold she was "very excited because Gordon had returned, I think that very morning from overseas and she was very happy and very excited ..." Other witnesses reported Ms Byrne's happiness that the applicant was coming home.
Peter Byrne said that he met with Ms Byrne for coffee before he went overseas in May 1995. He said, "She was her normal self. She seemed quite happy and relaxed...She [also] mentioned to me that Gordon was pressuring her to marry him. That when I questioned her about that, if that was any concern, she shrugged it off."
Mrs Natalie Butler (nee McCamley) considered herself to be Ms Byrne's best friend. She described her observations about the relationship between Ms Byrne and the applicant:
"Caroline was very much - she was very happy. She seemed - you know, as a couple, they were very happy together; they seemed to be enjoying life. They did a lot. She didn't like it when Gordon went away for long periods of time. And before, just before her death, Gordon had been away for a while and she was getting frustrated because he was changing the day he was coming back...Generally they seemed very happy together and I never really saw them any other way. It was always quite normal and happy."
Watson said that her impression was "that he [Gordon] would often call Caroline on her mobile. So I knew that - or I assumed - that they were very very close." She said she thought they had a good relationship: "Caroline didn't divulge too much information to me at the time about her relationship but it seemed to be okay."
The applicant's sister, Ms Michelle Wood, confirmed her statement dated 7 August 2001. In that statement she had said of Ms Byrne and the applicant's long-term plans:
"They both communicated to me that they were getting married and having kids. They wanted children before Gordon was 35. My brother told me that she was the one and he was absolutely sure that she was the one."
Ms Wood also said, "I got the impression that she [Ms Byrne] was very much in love with Gordon as well."
Problems in Ms Byrne ' s career
Ms Byrne was an attractive and elegant woman who had ambition to be a successful fashion model. She was aged 24 at the time of her death. She had been working as a model through the Gordon Charles Management Modelling agency. She enjoyed the work but by the time of her death she was having difficulty defining her future career path.
Approximately 3 weeks prior to her death, Ms Byrne received an offer of full-time employment from the June Dally-Watkins agency. She had previously worked part time for June Dally-Watkins as a teacher. The offer was to work in marketing for the agency. She was troubled as to whether if she accepted the offer it would have an adverse impact upon her modelling career. She discussed these issues with Mr Gordon Donald of the Gordon Charles Modelling Agency, who was her agent seeking his views on what course she should take. Donald advised her that working with June Dally-Watkins would adversely impact on her modelling but that Miss Watkins might allow her to continue to perform some modelling work. She decided to accept the full-time job. After she had started with June Dally-Watkins, Donald said they had a conversation in which Ms Byrne said that the job was "more difficult than she had anticipated."
Ms Byrne commenced full-time employment with June Dally-Watkins on 29 May 1995. On Wednesday, 31 May she spoke with her father and told him "I miss the modelling. I miss the modelling very much ... I do like modelling." Mr Byrne said that he told his daughter that if she was going to be working full-time at June Dally-Watkins, "you have got to give up the modelling." This was the conversation that was terminated when his daughter said that the applicant had called her and she said he was in a "shitty mood."
Mr Byrne said that on Friday, 2 June his daughter had told him that she had spoken to Donald about her modelling and he had told her that "she would never be a top model, but that she still had several years of ... work." Her father described her mood on this occasion as "very, very happy. Very overjoyed at being told that she would never be a top model but that he ... would be able to give her work for the years ahead." She told her father that following this conversation she intended to cease working full-time for June Dally-Watkins but would work part-time with that enterprise and continue with her modelling.
On that Friday Ms Byrne had been working with Mr Hany Mohamed at premises on the northern beaches for June Dally-Watkins. Mr Mohamed gave evidence that he had given her a lift back to the city and that on the way home she had called the applicant. He said that "it seemed to be a happy conversation."
Watson saw her outside the June Dally-Watkins agency on the Friday afternoon. She said that Ms Byrne had the flu and although in the past she had been an optimistic, vivacious and happy person, on that day "she seemed quite flat and fluey." Watson said that she asked Ms Byrne if everything was okay and she responded that "she was just run down with the flu and stressed with work; that she couldn't get to the gym so she was feeling a bit down." Watson gave evidence that Ms Byrne "was really drained from work and seemed flat. She told me she had a promotion at work and that she didn't realise how hard it would be."
Watson and Ms Byrne caught a train together to Kings Cross and then went to a café near Ms Byrne's apartment. She said that Ms Byrne was "very vague and she seemed to be distracted ... for some reason she was, I would say, not very engaging on that day." She said that Ms Byrne repeated that she had the flu and that she "felt like shit." Watson was sufficiently concerned about Ms Byrne's health to phone her at home that night. Although Ms Byrne said she was all right Watson said "I wasn't convinced." The available inference is that Ms Byrne was physically unwell and down about her work situation, an inference which is supported by the events which occurred early in the following week.
On Saturday, 3 June 1995 Ms Byrne spoke to a friend, Ms Narelle Cook. Cook gave evidence that Ms Byrne "was worrying a little bit about giving up some of her modelling and working full-time. She was also worrying about asking for a raise or asking for money ... She really enjoyed the modelling and was just a bit apprehensive about having to maybe give some of that up, but was going to see if she could keep doing it."
On the same day Ms Byrne spoke to her sister Deanne in Japan who gave evidence that "everything seemed fine. She sounded tired and I think she had a cold. I could tell this from the tone of her voice." Ms Lisa Fraser, a part-time receptionist at the June Dally-Watkins agency, gave evidence that at the time Ms Byrne had a cold which she "was a little bit upset about."
Butler, a close friend of Ms Byrne, said that Ms Byrne was "sick and I thought, oh obviously, she hasn't been real well ... and she was just a bit tired and someone with a cold really." She also said that Ms Byrne was "a little bit nervous about going to the Parklea markets the next week." However, she said that despite being nervous Ms Byrne was looking forward to the work with June Dally-Watkins "even though it would be long days and quite hard work."
Ms Byrne went to work on Sunday, 4 June. She apparently attended Narrabeen High School for a promotional event for June Dally-Watkins.
Mr Adam Leigh was Ms Byrne's booking agent at the Gordon Charles model agency. He said that 2 days before she died Ms Byrne had been to see him to ask his opinion as to whether she should continue modelling or accept a full-time position at June Dally-Watkins. He advised her that the job with June Dally-Watkins would be more stable but she should still be able to do some modelling part-time. He said that he was "basically saying to her that she wasn't one of the top few models so if she was looking for that, if she was looking for a work load of one of the top few models I said to her that it probably wouldn't be there" and that her work would be "nothing compared to the leading models."
Leigh said that she appeared to take the news "okay." He said that after he found out that Ms Byrne had died he felt guilty and at the memorial service was upset, saying "I was actually feeling really guilty about saying these things to her."
The issue of depression
The prosecution led evidence from several witnesses who testified to their observations in relation to Ms Byrne's mental state shortly before her death. Among them was Ms Michelle Whelan, who in early 1995 was a 14- or 15-year-old student of Ms Byrne's at the June Dally-Watkins School.
Whelan and the deceased came to be friends. Whelan recalled that at Ms Byrne's invitation, she accompanied Ms Byrne on a trip to the Gap in January 1995. Whelan said that they discussed general topics on this quick visit. Whelan recalled asking Ms Byrne how she knew about the Gap, and that Ms Byrne told her "it was one of her and Gordon's favourite places to go alongside with Camp Cove and other places like that around the bay." Whelan said she then asked Ms Byrne "what he [the applicant] was like, but she didn't want to answer me. She just stopped talking and she stopped looking at me and turned towards the ocean and was just looking out."
Whelan says that shortly after this visit, in about January or February 1995, she called Ms Byrne and they arranged another trip to the Gap. Whelan's evidence was that she had recently written Ms Byrne a note in which Whelan confessed she did not feel worthy of a place in the Dally-Watkins course, to which Ms Byrne responded that Whelan did deserve the opportunity.
Whelan said that on the second visit to the Gap, she stood at the cliff fence and, looking down into the ocean, said words to the effect of "I wish I was dead sometimes." Whelan recalled that Ms Byrne asked her to come sit next to her, which she did. Whelan's evidence was that Ms Byrne then said: "If you are thinking what I think you're thinking, it's not the answer." Whelan said that Ms Byrne went on to explain that although she too sometimes felt depressed, "there's always someone you can talk to." Whelan recalled that Ms Byrne told her that "she loved her father [Tony Byrne] very much" and "wouldn't do that [commit suicide] to her family." Whelan agreed that Ms Byrne's words had cheered her up.
On Monday, 5 June 1995 Ms Byrne consulted a general practitioner, Dr Cindy Pan. Dr Pan gave the following evidence in chief about the consultation:
"She had been feeling depressed for about a month. She had been feeling a bit low for about a month and depressed for the last week and she had recently started a new job in sales for June Dally Watkins, and her boyfriend had been away recently for about 3 weeks for work, and he was now back. And she couldn't put her finger on what she thought was making her feel down. She had felt depressed about 3 years previously, and she had counselling and medication and it had helped and she got better. And she said nothing specific had happened to set her off feeling depressed, and I asked her specifically, if she had any thoughts of harming herself, not because I thought she would, but more because that's a routine question that you ask a person who is feeling depressed and she said definitely not. And because she said she had been depressed in the past, and that seeing a psychiatrist and taking anti-depressants helped, I referred her to - she couldn't remember the name of the previous psychiatrist, though I referred her to a psychiatrist that I knew and I rang to get her an appointment. And they actually offered an appointment for the following day, but she declined that appointment because she had a work commitment for June Dally Watkins ... and she was very adamant that she wanted to attend this work commitment and - because I said 'well I could write you a medical certificate'. Mainly because sometimes it's hard to get appointments, and because this appointment was available I thought it would be good if she could take it. But as it was, they then offered her an appointment for the day after that, so Wednesday."
Dr Pan was of course giving evidence many years after the consultation. It would be expected that a doctor, who would see many patients in a year, would have little independent recall of an individual consultation. She referred to her notes when giving evidence and her letter of referral to the psychiatrist was tendered. The letter was in the following terms:
"Dr Cindy Pan 5/6/95
Dear Dr Sippe,
Many thanks for seeing 24 y Caroline Byrne who is feeling very very depressed recently for ~1/12 but much worse for the past 1/52. She cannot understand why because nothing has actually happened to act it ...... that she can think of. She had the same thing ....3 yrs ago and saw a psychiatrist (? Who) and had medication which helped her out of it.
She has just started a new job doing sales for June Dally Watkins and one's not sure how she feels about it.
She feels she can't do anything, can't sleep, can't express herself. No thoughts of self harm.
Many thanks for your review and management.
Yours sincerely."
When the doctor was cross-examined she clarified her notes saying that they included the following comments:
"Almost can't go to work. Just started a new job."
She also accepted that her notes included the following:
"Feels very depressed. Very severe in the past week. Just started new job ... sales for June Dally Watkins. Not sure what she would like to do.
Can't express herself. Feels good for nothing... "
After Ms Byrne died Dr Pan wrote a note to the police on 8 June in which she observed, inter alia:
"Dear sir, I am Cindy Pan and I have been in general practice for three years. I had been seeing Caroline Byrne for about two years on and off. Her most recent visit was the 5 th of June 1995 when she described herself as feeling very depressed. We talked for a long time and she said she could not put her finger on just what she was unhappy about, but she had felt depressed for about one month, but more so in the past one week. She had recently started a new job in sales at Dally-Watkins, where she has worked for three years in a different position. She could not say whether she liked it or not. She felt as if she could not express herself or say what she wanted to do. She denied firmly any thought of self-harm, I encouraged her to see a psychiatrist, and she agreed to go. I rang the psychiatrist Dr Sippe's rooms and made her an appointment. They said they could not take her that same day, but gave her a time for the following day, Tuesday, 6 June 1995. She could not take it, she said, because of a work commitment. I encouraged her to take that time off work and go to Dr Sippe, saying she could easily have a medical certificate. She insisted that no-one else could replace her so I made her an appointment for Wednesday, 7 June at 4.30 pm. She accepted this and was keen to go."
When she gave evidence Dr Pan said that she did not believe that Ms Byrne was suicidal when she saw her but agreed that some people who commit suicide do not display any symptoms at all. She said that Ms Byrne had not told her that when she had felt depressed 3 years previously she had attempted to commit suicide by a drug overdose. Ms Byrne did not tell Dr Pan that her mother had committed suicide. Dr Pan gave evidence that "when people are suicidal, there are usually some antecedents."
Dr Pan said she had asked Ms Byrne if she was feeling down about her work but she said, "it wasn't really that, no." The two changes that Dr Pan identified in Ms Byrne's life which may have altered her disposition were that the applicant had returned from overseas and the change in her work situation. However, Dr Pan said that she "didn't specifically say that either of those things were what was making her depressed."
On 5 June Ms Byrne took a phone call at 12.30 pm, scheduling a modelling booking for 4 pm the following day. The booking was later rescheduled to 5.15 pm. She also had lunch with friends, Ms Tanya Zaetta and Ms Tali Blumenfeld. Zaetta gave evidence that "Ms Byrne was a little bit confused about work." Zaetta also said that Ms Byrne told her that "Gordy and I are having a moment." Zaetta said that she took this to mean a "little tiff" in their relationship. Blumenfeld said she did not pay much attention to this discussion as "all couples argue. So I didn't think anything of it."
Zaetta also said "I know that Caroline had a lot on her mind, for example there was the whole June Dally-Watkins thing of whether Caroline should take the job at June Dally-Watkins or not." She said that Ms Byrne did not appear depressed and did not tell her about the appointment with Dr Pan.
Ms Byrne rang her father at 3 pm on Monday, 5 June. When he gave evidence he said that his daughter had told him that she and the applicant had a quiet weekend and she felt much better. He said she sounded happy and excited that she would still be modelling.
This evidence is at odds with a statement which Mr Byrne made on 3 January 1996, in which he said that Ms Byrne told him during this telephone call that she was feeling very down about work and was anxious about talking to Ms Carel Clifford at June Dally-Watkins:
"I last spoke to Caroline on Monday, June 5. It was the day her brother Peter arrived home from an 8-week trip to Japan, not China. We spoke on three separate occasions. She had been to the doctors. Her last call to me was about 3 pm. She said she was going to an assignment to PLC Pymble that evening and tomorrow she was going to Parklea. She said she was going to take my advice and when she saw Carol [sic] Clifford from June Dally-Watkins, during the week, she was going to tell her she wanted to keep up your modelling career with Gordon Charles and go back to casual with June Dally-Watkins. She was feeling down about this decision and I felt she was suffering from a mild case of anxiety. She had an appointment on Wednesday afternoon with a counsellor which she did not keep..."
According to his evidence at trial, Ms Byrne did not mention visiting Dr Pan or the appointment with Dr Sippe.
In his police interview on 14 June 1996, the applicant described a conversation with Ms Byrne at around 7 pm on the Monday:
"She rang me and asked where I was and I said 'Ill [sic] be home in a minute.' I thought she rang from home. I said, I'll be home in a minute. I'm just walking through Kings Cross, and she said, Well, I'm not at home yet; I'm visiting a friend in Bellevue Hill and she said, But I'll leave now and I'll see you at home soon."
The applicant explained that he knew Ms Byrne was not visiting a friend in Bellevue Hill for two reasons: "because I know she didn't have a friend in Bellevue Hill and secondly she never would have said to me I'm visiting a friend in Bellevue Hill; she'd say, I'm at so-and-so's."
The applicant said that when Ms Byrne returned home that evening "she didn't look her normal self but I put it down to the fact that she was unhappy with her work and that she'd had the flu and what have you". In the subsequent conversation Ms Byrne apparently acknowledged that she was not with a friend in Bellevue Hill and explained to the applicant that she had been to the doctor and "the doctor had said she was depressed."
The applicant said that he and Ms Byrne had a conversation in which Ms Byrne indicated that she was really unhappy with what she was doing at work and she said "I think I've taken on something that I don't like and I don't think I can get out of it." The applicant said that he tried to comfort her and tried to encourage her to speak to her father but she declined.
Tuesday, 6 June
On Tuesday, 6 June 1995 both the applicant and Rivkin were interviewed by the ASC (later known as ASIC) in relation to the affairs of the Offset Alpine Printing Group between 1 December 1994 and 28 February 1995. No charge resulted from the inquiry.
Mr Jamie Fawcett, a journalist, said that the applicant told him that the inquiry was difficult for Ms Byrne "because he couldn't tell her or explain to her what was going on."
During Tuesday, 6 June Ms Byrne twice rang the modelling agency. It seems that she withdrew from the job which had been scheduled for that day at 5.15 pm. The job was allocated to another model.
Ms Byrne worked on the Tuesday at Parklea markets and was seen to leave there at about 2.15 or 2.30 pm. She made a purchase from BP Rose Bay at 3.39 pm that afternoon.
That evening at 5.47 pm and again at 6.08 pm the applicant called his doctor, Dr Joseph Grech. He asked the doctor whether he could have a medical certificate to explain Ms Byrne's prospective absence from work. Not surprisingly the doctor would not give him the certificate. The doctor said that his best memory was that the applicant had said he wanted to take Ms Byrne to the Blue Mountains as he had not been able to spend much time with her lately.
When the applicant was interviewed in 1996 he said that after returning home from work on Tuesday night, he and Ms Byrne continued the conversation from the previous evening about Ms Byrne "wanting to go sick for a period of time." The applicant described her as "like a very different person" and "she was very off about the whole thing". Ms Byrne said, "I wanna go sick. You know, I cant [sic], I cant [sic] quit; I'm gonna have to fake an illness or something." The applicant said he responded, "Well you know, you've got to come up with something really good but if you come up with an illness, like glandular fever...you cant go to the gym, you cant go out and see people. You're gonna have to lie low so that the word doesn't get out that Caroline Byrne's having a great time when you're trying to get off work." He said, "She asked me to ask my doctor, who is a friend, for a sick note to get her off work and I said, well, I would do that." He also indicated that "she wouldn't speak to...Carel Clifford - because she was kind of scared of Carel and she didn't like Carel very much. So I said, well, look, I'll ring up Carel and say you're really sick and I'll say I've picked you up from the doctors and you're sick and you cant come in for a while."
The prosecution criticised the actions of the applicant. It was submitted that the applicant was attempting to provide an excuse so that he could take Ms Byrne away. It was submitted that their relationship was unravelling and that the applicant believed he needed to spend time with Ms Byrne alone to endeavour to retrieve it.
I have a different view. Contrary to the Crown's submission, the applicant's actions in relation to Ms Byrne at this point are at least equally consistent with those of a caring partner concerned that Ms Byrne was not coping with her new role with June Dally-Watkins. Although he was perhaps naïve, I believe it was just as likely that he was endeavouring to ensure that her employer did not learn of the reason for her difficulties and the fact that she was suffering from depression. Although his action in contacting his own doctor led to an inevitable rejection of his request, it is untenable that the only conclusion to be drawn was that the applicant was seeking to secrete Ms Byrne to serve his own ends rather than provide her with some time to restore her health.
The applicant called his home at 7 pm that evening. At 7.26 pm Ms Byrne used her mobile phone to try to call home. She then tried to call the applicant's mobile phone. The records show that the calls were sourced through a mobile phone tower described as "North Shore." There was evidence at the trial that mobile phone calls made at Watsons Bay and the Gap could be recorded as calls from "the North Shore." However, I do not believe this evidence is sufficient to enable any conclusion to be drawn as to the location from which the call was made.
At the trial the defence sought to make use of this evidence to support an inference that Ms Byrne may have been at the Gap on the Tuesday evening of 6 June, but was not then in the company of the applicant. Although she may not have been with the applicant I do not believe her whereabouts can be established. Although it is possible that she was at the Gap there are many other locations from which her phone may have registered as making contact with "North Shore."
Ms Byrne called her home again at 7.49 pm. On this occasion the call was recorded as coming from "Sydney City." This was the last call Ms Byrne made from her mobile telephone.
As I have indicated, the horizontal length of the northern ledge, based on the QASCO study, was 5.5m, and based on the police survey was 5.6m. This was the available run-up on 7 June 1995, not 4m as stated by A/Prof Cross. The availability of a 5.6m run-up represents a substantial difference from the evidence of 4m relied on at trial. The report of Prof Pandy tendered on the appeal dated 19 February 2011 and which I would admit as new evidence, examines these differences and concludes that with such a run-up, the majority of A/Prof Cross's subjects could have dived to hole A.
During the trial, a run-up of 4 m was described by A/Prof Cross as a "maximum" for a "spear throw," for the reason that "[a]nything more than 4 m, the thrower would run the risk of propelling himself over the edge when he threw." In relation to an alternative throw where there was a "real risk" that a thrower would end up off the cliff, the method was described by A/Prof Cross as "totally unsuccessful." Given that the run-up was more than 4m, this evidence from A/Prof Cross, if accepted, raises serious doubt that Ms Byrne could have been spear thrown from the northern ledge.
The photographic material discovered by the applicant was not disclosed by the prosecution at the trial. It should have been. As the applicant submitted, there is no reason why "the defence in a criminal trial should be obliged to fossick for information of this kind and to which it was entitled": Grey at [23] (Gleeson CJ, Gummow and Callinan JJ).
The Crown responded to the applicant's submissions by emphasising that all of the photographs existed before the trial. This was of course true. However, when the prosecution represented the photograph that was in evidence as having been taken in about 1996, the applicant's advisers were entitled to accept and rely on that representation. As it happens it was not correct, the photograph having been taken in 2003.
Before this Court the Crown endeavoured to explain the lack of vegetation on the platform in 1996 through Mr Bird's evidence of work done in 2004. However, it does not follow that the vegetation removed in 2004 was present in 1995, some nine years earlier.
The applicant submitted that the evidence as to the available run up on the rock shelf justified an acquittal. I am not persuaded that this is the necessary conclusion. Prof Pandy prepared a fresh report for this appeal. In one sense it could not be fresh evidence, given that it involves evidence of further calculations upon the assumption of a greater run up distance on the northern ledge by reason of the absence of vegetation. However, given the evidence that the assumption that 4m was all that was available may not have been correct, there are potentially significant consequences for the possibility that Ms Byrne may have jumped. Those consequences are revealed in Prof Pandy's evidence. The appropriate forum to resolve the issue would be a new trial.
The orientation of the body
A/Prof Cross disclosed in his book that prior to December 2003, he was "not 100 per cent convinced about the landing spot" and was bothered by how the deceased "ended up wedged in a crevice with her feet pointing towards the corner fence post": at 79. As a result "I called Jacob in December 2003 about both of my concerns": at 80. In his book, he states, "fortunately, Jacob immediately saw the importance of what I was saying and arranged for Mark Powderly and two other officers to visit the site on 6 January 2004": at 80.
A/Prof Cross states in the book that Sgt Powderly told him that Ms Byrne's legs and feet "were pointing straight up in the air towards the corner fence post, as if she had taken a head-first dive off that spot": at 81. This evidence of A/Prof Cross's knowledge of Sgt Powderly's observations of the orientation of the body of the deceased coincides with the evidence given by Sgt Powderly in the trial. However, it contrasts with the evidence of A/Prof Cross at the trial that Sgt Powderly had been responsible for the orientation of the mannequin with her feet pointing towards the northern ledge and had told him that this was how he found the deceased. A/Prof Cross gave evidence that when photographs of the mannequin were taken, Sgt Powderly was present and directed officers "to place the mannequin in the location and orientation that he requested and he - he told me that that is how he found her," namely with legs and feet pointing in the direction of northern ledge.
The prosecutor never suggested when questioning Sgt Powderly that he was present on 8 June 2005, or that he had ever said to A/Prof Cross that this was how the deceased had been found or that he had directed the orientation of the mannequin in these still shots as reflecting how he found her.
A/Prof Cross also states in his book that it was he who requested that the forensic imaging group take photographs of a mannequin in the holes: at 121. The photographs of the mannequin referred to in the book and in the evidence at trial were taken on 8 June 2005 by Snr Constable Brett Kuhner and Constable Hodgson. Snr Const Kuhner gave evidence at the trial but was not asked any questions about the orientation of the mannequin. There was no evidence in the trial that Sgt Powderly was present on 8 June 2005 and, in his statement dated 18 September 2008, Snr Const Kuhner did not name Sgt Powderly as being present.
It was submitted by the applicant that the admission by A/Prof Cross in his book that Sgt Powderly had told him that the orientation of the deceased was with feet pointing towards the corner fence post (and not the northern ledge) demonstrates that fundamental evidence was presented by A/Prof Cross in a misleading manner in his reports and at trial and that a fundamental assumption for his opinion was not correct.
Prof Pandy was asked to assume that the orientation of the body was in accordance with the evidence given by Sgt Powderly in the trial, that is, oriented with the soles of her feet pointing towards the corner fence post. In his report dated 19 February 2011, tendered to this Court, he expressed the opinion that "[t]his evidence suggests that it is more likely that the body was launched from a point near the corner fence post than from the northern ledge ...": at 21. Further, he was of the opinion that the axial rotation which would have been required to launch from the northern ledge and land in the true orientation as described by Sgt Powderly "does not seem plausible in this case especially if the body is already undergoing a forward rotation that is necessary for a head-first impact": at 22. He was of the opinion that the true orientation of the body was consistent with Ms Byrne ending up in hole B.
The respondent submitted in response that the orientation of the body was not fundamental to A/Prof Cross' opinion and that the views of Sgt Powderly were known at the trial.
To my mind the orientation of the body was significant to A/Prof Cross' opinion. It was certainly important to Sgt Powderly, who continued in his belief that it was likely that Ms Byrne had gone off the cliff from the more southerly position. However, throughout the trial A/Prof Cross assumed an orientation that was more consistent with his theory that Ms Byrne had come off the northern platform.
Passages in the book make plain that A/Prof Cross was not entitled to make this assumption. He had no reason to dispute the evidence of Sgt Powderly. Sgt Powderly had told him of the correct orientation of the body. However, A/Prof Cross chose to ignore it.
A/Prof Cross gave evidence in cross-examination that over the years he has questioned what Sgt Powderly meant by the orientation in which he found the body of the deceased and claimed "to this day" that he did not know what Sgt Powderly meant about saying her legs were pointing up towards "the corner point." This was also misleading if he was well aware that he meant the corner fence post, as he states in his book.
In re-examination, A/Prof Cross was asked to confirm in relation to the orientation of the body as seen in EX DV that "the final position" was as the mannequin was positioned. He confirmed as he watched: "Yes, now the mannequin is in the correct position." This was re-affirmation that the orientation of the body was not as described by Sgt Powderly in his evidence and marked by Sgt Powderly to correct the position of the mannequin as depicted in the photographs. This is contrary to A/Prof Cross' knowledge, as disclosed in the book, that Sgt Powderly had said that the true orientation was towards the corner fence post.
There is fresh evidence relevant to the tide and swell and the reasonably possible landing points at the base of the Gap, in turn affecting the reasonably possible launch points from the top of the Gap.
There was evidence available from Dr Duflou but excluded at trial which concerned the suicide of a person who has been identified as RS . Subsequent to the trial an inquest was held into his death. RS died on 21 December 2007 at "about 9 am." The time of death was established at the inquest as subsequent to his final text message sent at 8.47 am. He was observed to push himself from a sitting position off the edge of the Gap at a point described as "the Gap Bluff." Mr Borrow-Jones from National Parks and Wildlife saw RS on the rocks below and observed what he described as "strong swell" washing the deceased onto the rocks. He was then washed south from where he had landed and to the north of the Gap proper. He was then seen to be washed under the rocks. At 1 pm police located the deceased "trapped within a crevice on the rocks between large rock ledges. The deceased was partially viewable with his legs sticking up level with the surface of the rocks." The police rescue squad attended. The deceased was found to be wedged tightly into the crevice.
Constable David Stuckey, from Rose Bay police, in his statement dated 10 January 2009 stated in the last paragraph on at 4: "RS's [sic] was washed off the rocks at the Gap within minutes of RS jumping. The tide was high that morning and there was also a strong current and large swell." Sergeant Barros, from Rose Bay police, described the swell in the morning as "fairly heavy and the tide was high." RS was recovered at about 2.15pm.
The applicant obtained information in relation to the time of death of the deceased and tide and swell information for 21 December 2007 between 9 am and 2.15 pm was obtained. According to tide charts, high tide was 1.72 m at 6.18 am and low tide was 0.36 m at 12.59 pm. At 9 am the tide would have been approximately 1.04 m. The tide in the relevant times between when RS went off the Gap and when he was seen caught in a crevice with his legs were sticking up in the air was between 1.04 m and 0.36 m, that is, lower than the tide movement on the date of death of Ms Byrne between the hours of 1 pm on 7 June 1995 and 4.40 am on 8 June 1995. The swell was measured hourly from 9 am at medians of 1.38, 1.32, 1.29, 1.20 and 1.15 m, with a maximum wave height during that time of 2.54 m. These wave heights indicate a swell lower than that at relevant times on 7 and 8 June 1995.
It was submitted to this Court that this evidence further demonstrates that it was not correct for the prosecutor to say: "This is in a large swell that we're talking about, where the body has been wedged in rocks because of a large swell. There's no suggestion in this case that was the fact in relation to this point." Nor, it was submitted, was it correct for him to direct the witness: "Q. Let's exclude the possibility of some massive swell that night that washed her body into the hole, okay, because the evidence is that there was some water at the base of these rocks but there was no water going over the top of these rocks, all right?"
It was submitted that this was not the evidence in the trial. The evidence of Sgt Powderly did not support the contention that "there was no water going over the top of the rocks" that night, particularly in circumstances where Sgt Powderly was at the base of the Gap at a time subsequent to high tide. It was submitted that the fresh and undisclosed evidence demonstrates that further to this the swell on the day that Dr Duflou was speaking of was in fact lower than that on the night in question.
Obviously the evidence from the inquest is new evidence. However, I am not persuaded that it would justify a new trial. The difficulty with the evidence is establishing that there is a relevant relationship between the position where RS left the cliff and the location where Ms Byrne was found. The evidence from the inquest demonstrates that a body may be moved by the water to where it finally gets lodged in the rocks. However, this assumes that the person fell into the water at a location from which they could be carried to some other position. The suggestion, which is plausible, that this may have happened to Ms Byrne is not supported by evidence available to this Court that she fell from a point where she could have landed in water which carried her to the hole from which her body was retrieved. However, the record of the trial confirms that this issue was not adequately explored by either party. It should have been so that this mechanism could either have been excluded or accepted as a rational possibility, rather than the trial being confined to a debate about hole A or hole B as the primary landing point of Ms Byrne.
Undisclosed evidence in relation to a woman threatening to commit suicide at the Gap on 8 June 1995.
Subsequent to the trial, it was brought to the attention of the solicitor for the applicant that the following exchange took place in Parliament in 2004:
"1877 POLICE INVESTIGATIONS - Mr Debnam to Minister for Police: In relation to police investigations:
(1) Did police attend any deaths, accidents or incidents, other than that of Caroline Byrne, at 'the Gap' at Watson's Bay on 7 June or 8 June 1995?
(2) If so, which deaths, accidents or incidents did police attend, at what times and what police resources were used?
Answer
NSW Police has advised me:
(1) Yes.
(2) A car crew from Rose Bay Local Area Command investigated a report of concern for the welfare of a female threatening to commit suicide at the Gap on 8 June 1995."
The fact that a person threatened to commit suicide at the Gap on 8 June 1995 was not disclosed by the prosecuting authorities prior to the trial. No material in relation to this incident was provided in response to a freedom of information application to the NSW Police.
It was submitted by the applicant that the evidence held by the police in 2004 was and is relevant to the evidence of Doherty that he saw a distressed woman at the Gap at a time that he could not date, but a time proximate to the death of Ms Byrne. It was submitted that this is material which should have been disclosed at trial and was of material forensic significance to the applicant's defence: Grey at 1712.
It was submitted that given the admission of the prosecutor in the sentencing proceedings that the jury " must" have found that Doherty had seen Ms Byrne and the applicant, the failure to disclose this information by the prosecuting authorities demonstrates a substantial miscarriage of justice warranting the entry of a verdict of acquittal.
To my mind this material was not fresh. It was material available in Parliament in 2004. I am also not persuaded that it needed to be disclosed or that the circumstances revealed a lack of diligence in response to requests for information made on behalf of the applicant.
The thrust of the applicant's submission was that the evidence casts considerable doubt on whether the young woman Doherty observed holding her head in her hands as she sat on the curb underneath a street light across the road from his flat and arguing in a combative style with a man who was shouting at her whilst a second sat on a fence, and who he watched as she walked between the two men towards the Gap, was Ms Byrne.
Whilst Doherty could not state the date on which he saw a distressed young woman in the company of two men, his evidence was that it was the same night that he heard a scream and later, a helicopter, and that the following day he spoke to his neighbour Ms Kingston and a shopkeeper named Michael about someone having been found at the bottom of the Gap. He told them that he heard a scream the night before. There had been two occasions on which he had heard helicopters, in 1995 when a young model was found at the base of the Gap and in 1997 when a young Asian boy had fallen from the cliff at the end of the Higher School Certificate period.
The incident the subject of a Computerised Operational Policing System (COPS) entry reveals that police located the person of interest (who was being treated for chronic depression and had been prescribed Prozac medication). She had telephoned her friend and indicated that she was suicidal. A police patrol located this female and she was taken by police to St Vincent's Hospital in police custody. Unlike the COPS entries relating to Ms Byrne, there was no record (or indeed, need) for any rescue helicopter being utilised.
I reject the contention that the applicant's conviction was affected by a substantial miscarriage of justice by reason of the failure to disclose this material.
Fresh evidence in relation to Angelo Georgiou
Georgiou gave evidence in the applicant's trial relevant to the Crown case as to both the "Offset Alpine" motive (as set out in Ground 8) and evidence of conversations Georgiou claimed that he had with Ms Byrne in 1994 and early 1995, relied on by the prosecutor as direct evidence from Ms Byrne of "concerns about the relationship." This evidence of "fear" was the only evidence in the trial of any such statement and Georgiou's credit was challenged by the applicant. Georgiou's first statement to police setting out the conversations was made on 20 May 2004, some 9 to10 years after the conversations were said to have occurred.
At the outset of the trial, objection was taken to the admission of this evidence. Senior counsel for the applicant submitted that the probative value of the evidence was low given the unreliability caused by the delay and that the danger of unfair prejudice in these circumstances was high. Barr J ruled that the evidence from Georgiou on its face seemed to be reliable and probative and that there was no danger of unfair prejudice.
Senior counsel for the applicant challenged Georgiou's credit in cross-examination.
Since the trial Georgiou has been charged with and pleaded guilty to an offence relating to dishonest conduct in 2009, which was said in the Fact Sheet to have extended over a three-year period prior to that. He also sought and obtained a "letter of comfort," in relation to his evidence given in the applicant's trial. Georgiou has also made admissions regarding the "fraud and deception" of Ms Halyna Chrapacz. This fraud occurred prior to the trial: see Lawteal Finance Pty Ltd v Chrapacz [2010] NSWSC 73. In those proceedings Ms Chrapacz swore affidavits attesting that Georgiou deceived her in relation to her mortgage documents.
The applicant submitted that Georgiou was presented to the jury by the Crown as a reliable and credible witness. The judgment of Barr J relied on this presentation of the witness. It was submitted that this fresh evidence in relation to Georgiou's dishonest conduct and, further, his attempt to gain an advantage from having given evidence against the applicant, is of material significance, in the nature of that referred to in Grey at 1719 [55].
The Crown submitted that even if it were accepted that the material is fresh and cogent, the evidence, when viewed as it must be in the context of the evidence given at trial, would not have been likely to have caused the jury to have entertained a reasonable doubt about the applicant's guilt. Just as dishonest criminal behaviour does not render the impugned witness' evidence inadmissible, the fact that material, which may tend to impugn the integrity of a prosecution witness, emerges subsequent to conviction does not of itself result in the conclusion that the jury, acting reasonably, would have acquitted the applicant if that material had been available.
It was further submitted that unlike in Grey the Crown case was not so reliant on Georgiou's evidence that discrediting him would provide powerful considerations in the applicant's favour. Georgiou was not the only witness who provided evidence relating to Offset Alpine, and of Ms Byrne's "concerns about the relationship." McVeigh gave evidence of Ms Byrne cowering and in distress as the applicant berated her at the City Gym probably the Friday before Ms Byrne's death. She heard the applicant say aggressively to Ms Byrne, "You're a fucking idiot, Caroline," and that this was said in a reprimanding, aggressive manner. Williams said she saw Ms Byrne run out of the gym crying.
It was further submitted in relation to the letter of comfort that it was provided at a time after the witness had given evidence and in relation to offences then unknown to investigating officers - this was not akin to a situation where a prosecution witness stood to gain by giving evidence having obtained an undisclosed benefit, as was the position in Grey.
It was submitted by the respondent that Grey is clearly distinguishable from the present case. In Grey , there was no disclosure of what was accepted to be vital information and the issue was whether the trial miscarried. The accused had not been provided with a copy of a letter of comfort, which had been given by the investigating officer to the key prosecution witness who had involvement in the events giving rise to the charges against the accused. The witness had received "a very significant benefit" as a result of his information. There, the prosecution case presented the witness as a reliable witness whose involvement, if any, in the events the subject of the trial was nonexistent or entirely innocent. This, the court held, was a disingenuous basis upon which to present the witness - as the undisclosed comfort letter made clear, the witness had widespread and deep involvement in the motor car "re-birthing" that was the subject of the charge .
In this case, the letter of comfort and the statement annexed to the affidavit of Det Insp Jacob make clear that the witness did not approach the police seeking to gain any advantage. Georgiou was reluctant to discuss the matter with the police and the only assurance given by police was initial anonymity.
It was submitted that this Court could not conclude that, when evaluated in light of all the evidence, there was a significant possibility that the jury, acting reasonably, would have acquitted the applicant if they had known about this information. I do not accept that submission.
Although I accept that the letter of comfort is of no relevance I am otherwise satisfied that this further evidence should be admitted as fresh evidence. There could be no doubt that the evidence of Georgiou was used by the prosecutor at the trial to assist in creating in the jury's mind the impression that the applicant was capable of killing Ms Byrne. Of course, quite how this could be reconciled with the proposition that he was very much in love with her, also advanced by the Crown, is not explained.
To my mind the evidence which is now available casts serious doubt on Georgiou's honesty. It could well be that with knowledge of his true character the trial judge may have rejected his evidence, or it may have effectively been put to one side by the jury. On either view, given the significance of Georgiou's evidence I believe that the new evidence, but for my view that the applicant should be acquitted, would together with the other material justify a new trial.
Orders
1. Leave to appeal is granted and the appeal is upheld and the conviction is quashed.
2. Order the entry of a verdict of acquittal.
LATHAM J: I agree with the reasons of the Chief Judge at Common Law and with the orders proposed. I only wish to add the following comments, in the light of the applicant's acquittal of murder.
As the analysis of McClellan CJ at CL demonstrates, the expert evidence was critical to the Crown case against the applicant because, without it, the Crown case could not exclude the reasonable hypothesis that Ms Byrne had committed suicide (an explanation that was seemingly accepted by her immediate family in the weeks following her death). However, the expert evidence, standing alone, did nothing to prove that the applicant played any role in throwing Ms Byrne from the Gap. Nor did the dubious "identification" evidence of the applicant's alleged presence with Ms Byrne, in the park during the afternoon and later in the evening, contribute anything, standing alone, towards proof of the applicant's guilt on the charge of murder.
There was a potentially fatal lacuna in the Crown case, namely, the absence of any evidence at all that the applicant was with Ms Byrne when she left the cliff edge. The Crown relied on an inference that the applicant was in her company, possibly with another man, continuously from the alleged sighting by Mr Doherty up until the scream was heard by the men who were fishing nearby. Having regard to the significant shortcomings in Mr Doherty's evidence, that was an inference that could not be reliably drawn.
It could not have escaped the Crown's attention that, without evidence of motive, its circumstantial case against the applicant depended substantially upon the combination of the expert evidence (which was already compromised by the conflict in the evidence surrounding the nomination of the place from which Ms Byrne's body was recovered) and the weak "identification" evidence. The applicant's lies were not available to the jury for use towards proof of his guilt, and the jury were told as much by the trial judge.
At the heart of the applicant's alleged motive to kill the woman he loved, rather than risk the loss of his employment and all the financial advantages it entailed, was the assertion by the Crown that Ms Byrne communicated to the applicant that she wanted to finish the relationship. The Crown's submission to the jury recognised the paucity of evidence underpinning this thesis. The submission was :
We would submit to you that she must have intimated to him that she wanted out, and it must have been obvious to him that this time it was going to be forever. (italics not in transcript)
It is difficult to regard this submission as anything other than an invitation to speculate. Moreover, it fell short of asserting that Ms Byrne in fact directly conveyed to the applicant that she "wanted out". Yet, it is clear that a very substantial portion of the Crown case was devoted to the topic of motive and that it, together with the expert evidence, occupied a position of primacy in the Crown's hypothesis.
It is convenient to return at this point to one of the principal judgments of the High Court on the subject of a circumstantial case, namely, Plomp v R [1963] HCA 44; 110 CLR 234. In the course of a discussion on motive and its role in a circumstantial case, Dixon CJ (Kitto, Taylor, Windeyer JJ agreeing) said at [5] :-
All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused ; but all such considerations must be dealt with on the facts of the particular case. (italics not in original)
In my view, this is one of those cases where that danger arose.
Speculation, conjecture and suspicion can never amount to proof beyond reasonable doubt.
There must be a mind convinced, or there is not that moral certainty which alone will justify a jury in condemning a person accused of crime: Brown v The King [1913] 17 CLR 570 at 586.
That certainty was entirely lacking in the Crown case against the applicant.
ROTHMAN J: I too agree with the reasons of the Chief Judge at Common Law and with the orders proposed. I also agree with the additional comments of Latham J.
The case presented by the Crown is, as has been pointed out, a circumstantial case. A large number of prosecutions are in that category. In this case, there was no direct evidence linking the accused to the death of Ms Byrne.
The received method of testing the sufficiency of evidence to establish the conclusion that a coincidence of events and circumstances warrants a belief in the causal connection between the facts that are capable of direct proof and the guilt of an accused is the examination of hypotheses logically consistent with the proved facts: Morgan v Babcock & Wilcox Ltd (1929) 43 CLR 163 at 173, per Knox CJ and Dixon J. The joint judgment went on to comment:
"In the end, however, the reasonableness or the probability of the occurrence of such hypotheses determines their admissibility, and when the coincidence of fact and concurrence of time are relied upon, the sufficiency of the circumstances must inevitably be judged by considering whether general human experience would be contradicted, if the proved facts were unaccompanied by the fact sought to be proved."
The foregoing analysis has been accepted and applied in criminal trials for at least 100 years before publication of the joint judgment and consistently since its publication. It goes fundamentally to the notion of proof beyond a reasonable doubt, which is necessary in order to find guilt. The High Court in Peacock v The King (1912) 13 CLR 619 had occasion to apply the same principle by reference to Starkie on Evidence , 3 rd ed., published in 1842, and to the comments of Alderson B in R v Hodge 2 Lewin C.C. 227 at 228. The principle is of long standing. In Peacock , the High Court was considering a verdict arising from a death allegedly caused by the performance of an abortion.
It reiterated the principle that in order to prove guilt the facts proved and accepted were required to be such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person: Peacock , supra, at 634 per Griffith CJ. It summarised the principle as being sometimes stated, "that the circumstances must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused." The Chief Justice went on to say:
"In the present case we know what the cause of death was, if we know anything about the case at all. It was the result of a miscarriage. The next question is: How may that have been brought about? We all know that it may be the result of accident or of purpose. If of accident, there is no guilt anywhere. If of purpose, it may be the act of the woman herself, or of some other person."
The same questions may well be asked in the current proceedings. I am prepared to accept that it is inconsistent with human experience, on the facts known and proved, for the death of Ms Byrne to have been an accident. Such a conclusion, while possible, would require a finding that Ms Byrne climbed over the safety fence and unintentionally fell to her death.
Beyond that conclusion all other conclusions on the elements to prove murder are conjecture. As made clear in the other reasons for judgment herein, the foundation to conclude that the death was by an act of violence perpetrated by another does not meet the requisite test. Further, the "proof" of the connection of the accused with the death of Ms Byrne fails to meet the required test to an even greater extent.
In order to find the appellant guilty of the charge preferred it was not sufficient to determine that which was more probable. Suspicion and conjecture, even grave suspicion, is not a proper basis for the finding of guilt.
This Court has read the evidence and has heard fresh evidence relating to the "scientific proof" that death could not have occurred by an act of suicide. There is a reasonable doubt as to that conclusion, which doubt is not attributable to the capacity of the jury to see and hear the evidence at first instance. Further, there is no cogent evidence proving to the requisite standard that the appellant was at the crime scene or connected with the death of Ms Byrne. At the very least there is a reasonable doubt of the kind to which the High Court referred in M v The Queen , supra.
As earlier stated, I agree with the Chief Judge at Common Law and with Latham J. These additional comments do not in any way qualify my earlier expressed agreement with the other reasons for judgment.
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