Regina v Adamson [2001] NSWSC 499

New South Wales Supreme Court

CITATION : Regina v Adamson [2001] NSWSC 499 FILE NUMBER(S) : SC 070051/01 HEARING DATE(S) : 9-12 April 2001, 17-18 April 2001, 17-18 May 2001 JUDGMENT DATE : 1 June 2001

PARTIES : Regina v Gerald Jon Adamson JUDGMENT OF : Howie J at 1

COUNSEL : B. Newport QC - Crown P. Zahra SC - Accused SOLICITORS : S.E. O'Conor - Crown Nikola Velcic & Associates - Accused LEGISLATION CITED : Crimes (Sentencing) Procedure Act 1999 - s 44 CASES CITED : Bugmy v the Queen (1990) 169 CLR 525 Pearce v The Queen (1998) 194 CLR 610 DECISION : In respect of each of the aggravated sexual assault offences the prisoner is sentenced to 8 years imprisonment to commence on 7 January 2000 and expire on 6 January 2008. In respect of the manslaughter offence he is sentrenced to 11 years imprisonment to commence on 7 January 2003 with a non-parole period of 7 1/2 years to commence on the same date. That is a total sentence of 14 years with a non-parole period of 10 1/2 years. The non-parole period is to expire on 6 July 2010 the date upon which the prisoner will be eligible for release to parole.

THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HOWIE J

FRIDAY 1 JUNE 2001

070051/00 REGINA v GERALD JON ADAMSON

SENTENCE

1 HIS HONOUR: On 9 April 2001 the prisoner was arraigned before me on an indictment containing one count of murder and two counts of aggravated sexual intercourse without consent. Each of the charges related to the same victim, Lisa Michelle King. The sexual assault offences were alleged to have occurred on 31 October 1999 and the murder on 1 November 1999. The prisoner pleaded not guilty to each count. 2 Before a jury was empanelled to hear the trial of the prisoner on this indictment, the parties requested that I hold a voir dire hearing to determine the admissibility of what was in effect three recorded interviews between the prisoner and investigating police officers. There were two ERISPs and what is described as a "walk-around" at the scene where it was alleged that the incidents giving rise to the charges took place. I granted the application and the voir dire hearing took place over the next five days during which evidence was called from the investigating police and the prisoner. 3 On the sixth day of the hearing of the voir dire, that is 18 April 2001, during the Crown's cross-examination of the prisoner, Mr Zahra SC, who appears for the prisoner, asked to have the prisoner re-arraigned. The prisoner then pleaded not guilty to murder but guilty to manslaughter in respect of the first count on the indictment and guilty to both the second and third counts. The Crown accepted the plea to manslaughter in full satisfaction of the first count on the indictment. In those circumstances I was not required to determine the admissibility of the evidence that had been the subject of objection. The Crown tendered that material in the sentencing proceedings. 4 It is important that I emphasise from the outset that, in relation to the death of the deceased, the prisoner pleaded guilty to manslaughter and that the Crown, as the representative of the community, accepted that plea as being appropriate. The prisoner, therefore, is to be sentenced on the basis that he did not intend to kill the deceased or cause her grievous bodily harm or that he was reckless as to her death. This is a very significant matter when it comes to determining the prisoner's culpability in causing the death of the deceased, and accordingly the appropriate punishment for doing so. The fact that the prisoner is to be sentenced for manslaughter and not murder must be reflected in a significantly lesser sentence than had he been convicted of murder after trial. 5 The facts of the matter are within a relatively short compass. There was in effect only one factual matter that was in dispute, but it was a crucial one in determining the culpability of the prisoner and thus the appropriate degree of punishment to be imposed upon him. This matter concerned the identification of the act of the prisoner that caused the death of the deceased. I will return to this issue after referring to the facts which are not in dispute. 6 On the evening of 30 October 1999 a party was organised by Brendan Ballesty at the home of his parents in McGowan Street, Putney. The gathering was in honour of Halloween and for the purpose of watching a World Cup rugby union match. It appears that invitation was by word of mouth, people being encouraged to invite other friends who they thought would be appropriate. The deceased, who was aged 21, drove herself and several of her girlfriends to the party and arrived at approximately 9:30pm. 7 Earlier that evening the prisoner, who was then aged 19, and several of his friends were at a hotel in Gladesville when they were invited to attend the party by a guest who was collecting more alcohol. They accepted the invitation and travelled with this person to Putney arriving at the party at about 11.30pm. 8 The deceased appears to have spent her first few hours at the party, drinking alcohol and generally socialising with other guests. Evidence of what she was doing at any particular time during the evening or the early hours of the next morning and her state of sobriety is, as might be expected, somewhat conflicting. However there is little doubt that at times during the party she was well affected by the alcohol she had consumed. It may be that because of a medical condition from which she was suffering she became more intoxicated than might have been expected from the amount of alcohol that she had consumed. 9 During the night the deceased mingled with the other guests, danced, watched the television coverage of the rugby match, and spent some time jumping in and out of the spa and pool. She was seen to be drinking both wine and spirits. I shall return to a more detailed account of her activities and the observation of her state of sobriety later in these remarks. 10 At sometime about 3.00am the deceased and a friend decided that they were going to stay the night at the premises. The deceased was feeling the effects of her consumption of alcohol and was concerned that she might be ill if she went home in a taxi. At some stage around this time, the deceased had a conversation with a friend Ian Carlson and indicated that she was tired and was soon going to retire for the night. 11 A short time later the deceased and a good friend, Meagan Aldridge, went to one of the upstairs bedrooms in the house followed by another friend Hamish Ogilvy. The deceased lay on the bed and her two friends spoke together for a short period. At some time the deceased fell asleep and the other two left the room. Ms Aldridge told Mr Ogilvy that the deceased was very drunk and they would have to watch over her. 12 Several times over the next hour Mr Ogilvy went upstairs to the bedroom to check on the deceased, and each time he did so she appeared to be sleeping soundly. On one occasion he woke her and inquired if she was all right and the deceased indicated that she was. She then apparently fell back to sleep and he left the room. Mr Ogilvy stated that about fifteen minutes later he went back into the bedroom to check on the deceased again and he noticed a man, who appeared to be asleep, lying on his stomach on the other side of the bed near her. Others who looked into the room around this time also noticed the deceased and a male person lying on opposite sides of the bed, apparently asleep. 13 Shortly before 6.00am Brendan Ballesty and a friend entered the bedroom in search of someone and observed the prisoner and another person on the floor next to the bed. The prisoner was on his hands and knees and was wearing only his underpants. He appeared to be leaning over somebody and appeared surprised to see them. Assuming that the prisoner was involved, or about to become involved, in sexual intercourse, the two men left the bedroom. Shortly after this incident, sometime between 6.00 and 6.30am, the deceased was observed on several occasions lying on her stomach on the floor beside the bed. 14 At approximately 6:30am the prisoner alerted others in the house that something was wrong with the deceased. He was followed by a group of persons upstairs to the bedroom. The deceased was lying at the left side of the bed, face down and with her head to one side. She was very cold and did not appear to have a pulse. An ambulance was called and the prisoner and another person commenced an attempt to resuscitate her. The prisoner appeared to be in an agitated state, swearing and urging that the deceased wake up. When these attempts at resuscitation did not appear to be succeeding, the prisoner lifted the deceased and carried her outside to the front of the house. He and others again attempted resuscitation. The prisoner continued in a highly agitated state, and was still swearing and yelling when paramedics arrived. 15 The deceased by this time had no pulse and was not breathing. Ambulance officers were able to regain a pulse but the deceased did not return to spontaneous respiration. The deceased was taken to hospital and remained on life support until that support was removed. She died in the early evening of the next day. 16 Police first spoke to the prisoner on 1 November because he had been the person who had found the deceased and summoned help for her. The prisoner told police in an ERISP that he met the deceased, who was a stranger to him, just after he arrived at the party. He said that they had little or no contact with each other thereafter. The prisoner gave an account of going to the bedroom intending to have a sleep and finding the deceased lying on the floor. He said that when she failed to respond to his touch, he became concerned about her well-being and summoned help from others at the party. He assisted in efforts to revive her. When it was put to him by police that he had been seen in the bedroom in his underpants on his hands and knees apparently leaning over someone, he denied the allegation. 17 The police asked the prisoner to supply them with the clothing he was wearing on that night, and he handed them a pair of boots and a pair of trousers. He said that he was unable to give them his shirt or underpants because they belonged to his uncle who had returned to New Zealand and had taken these items with him. 18 Dr Bradhurst conducted an autopsy on the deceased on 2 November 1999. He concluded that the existence of certain haemorrhages over her face indicated that the cause of death was asphyxiation. From his examinations of the deceased, both during and after the autopsy, he formed the view that injuries to the deceased's face were consistent with a hand having been placed over her mouth and nose. I will return to this finding in more detail later. Dr Bradhurst noticed a recent injury to the deceased's anus. Dr Edwards, an expert in sexual assault trauma, gave an opinion that the deceased had been subjected to anal intercourse that was likely to have been painful enough to wake her even if she were under the influence of alcohol. 19 On 8 November, at the request of the police, the prisoner voluntarily attended the police station and supplied a specimen of his saliva. DNA profiling carried out on this specimen showed that it was consistent with DNA obtained from semen found on the deceased's underpants. 20 On 30 December 1999 police arranged for the prisoner to come to the police station ostensibly for the return of his clothing. However, unbeknown to the prisoner, the police had also arranged for a close friend of his who had been at the party, Tyrone Pau, to be at the police station at the same time. The police had earlier obtained a listening device warrant permitting them to record conversations between the prisoner and Pau at the police station. After Pau arrived at the police station a detective informed him that the police had obtained DNA evidence linking the prisoner to the deceased, that she had been suffocated and that police suspected that the prisoner was involved in her death. Pau was then placed in a room in the station in which a listening device had been secreted. 21 After the prisoner arrived at the police station and his clothing had been returned to him, he was told that there were a few things police wished to clarify about the death of the deceased. The prisoner was asked to wait for a short time while arrangements were made to conduct an interview with him and he was taken to the room in which Pau was waiting. The police listened to and recorded the conversation which took place between the prisoner and Pau. It is unnecessary to give the details of this conversation. Although Pau informed the prisoner of what he had been told by the police, the prisoner maintained that he knew nothing about the deceased's death. 22 The prisoner was then taken to an interview room where a conversation occurred between the police officer in charge of the investigation and the prisoner. This conversation was not electronically recorded as it should have been. According to Detective Dyball, the prisoner initially maintained the version he had given to the police on 1 November. However, after he was asked to explain how his semen came to be on the deceased's underpants, the prisoner said, "I had sex with her but I didn't kill her." When the detective asked him whether she consented to him having sex with her, the prisoner is alleged to have said, "She didn't say anything". 23 Following this conversation the prisoner participated in a lengthy ERISP. At the outset of the interview the prisoner was informed that the deceased had died from suffocation. When asked whether he wanted to say anything about his semen being found on her underpants, the prisoner admitted having sexual intercourse with her. He then gave a detailed account of having both vaginal and anal intercourse with the deceased on the floor alongside the bed. He said that he then left the bedroom and went downstairs to find his clothes. A short time later he returned to the bedroom to have a sleep and found the deceased still lying where he had left her. He tried to wake her and, when she failed to respond, he raised the alarm with others in the house. When asked whether he thought that the deceased knew he was having sex with her, the prisoner replied, "Dunno, don't think so". 24 While this interview was taking place Pau, who had been kept waiting at the police station, was reminded of the information known to the police which implicated the prisoner in the death of the deceased. Pau was then told to wait in another room in the police station where once again the listening device had been placed. 25 At the conclusion of the ERISP between Detective Dyball and the prisoner, he was again taken to the room where Pau was waiting. Once more the police recorded the conversation between the two men. Again it is unnecessary to detail the contents of this conversation. The prisoner told Pau that he did not suffocate the deceased. Pau repeatedly exhorted the prisoner to tell the truth and that, if her death was accidental, he should say so because it would be better than murder. 26 The prisoner was then returned to the interview room by Inspector Cushway. Again a conversation occurred that was not recorded. Some of that conversation has been objected to and is not before me for the purposes of sentencing the prisoner. However in the part of the conversation to which no objection has been taken, the following took place, according to the statement of Inspector Cushway: