R v. McIntyre [2002] NSWCCA 29

New South Wales Court of Criminal Appeal

CITATION : R v. McIntyre [2002] NSWCCA 29 revised - 21/02/2002 FILE NUMBER(S) : CCA 60401/01 HEARING DATE(S) : 15 February 2002 JUDGMENT DATE : 15 February 2002

PARTIES : Regina - respondent David John McIntyre - appellant JUDGMENT OF : Hodgson JA at 1; Levine J at 54; Howie J at 55

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70041/00 LOWER COURT JUDICIAL Bell J OFFICER :

COUNSEL : Mr. M. Thangaraj for appellant Mr. R.A. Hulme for respondent SOLICITORS : Hugo Schleiger & Associates for appellant S.E. O'Connor for respondent CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Murder - Appeal - EVIDENCE - Sexual mutilation of victim's body - Evidence of sexual interest of appellant in deceased (a 14-year-old boy) - Whether relevant - Whether prejudicial - Whether wrongly admitted. LEGISLATION CITED : Evidence Act 1995 ss.65, 137. DECISION : Appeal dismissed; Application for leave to appeal from sentence dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60401/01 HODGSON JA LEVINE J HOWIE J Friday 15 February 2002. REGINA v. David John McINTYRE Judgment 1 HODGSON JA: On 26 March 2001, the appellant was indicted before Bell J on a charge that he, between 29 July 1999 and 11 August 1999 at Coffs Harbour in the State of New South Wales, did murder Luke Gregory. He pleaded not guilty and the trial proceeded before Bell J and a jury. 2 On 24 April 2001 the jury returned a verdict of guilty. On 19 June 2001 Bell J sentenced the appellant to imprisonment for twenty-two years, commencing 14 August 1999, with a non-parole period of seventeen years, expiring on 13 August 2016. 3 In the original notice of appeal, the appellant indicated a desire to appeal against conviction and sentence. However, only one ground of appeal is relied on, namely that the trial judge erred in admitting certain evidence, so it is apparent that the application for leave to appeal against sentence is not being pursued. 4 I will briefly summarise the Crown case at the trial. 5 The body of the deceased, a fourteen-year-old boy, was found on 10 August 1999 near Sealy Lookout Road in Bruxner Park, Coffs Harbour. At the trial, issue was taken on the identification of the body, but the Crown case on this was strong and no issue is taken on appeal. The deceased was wearing a jacket and shirt but no pants or underpants. His legs were enclosed in a black plastic garbage bag. Post mortem examination disclosed two stab wounds, either of which would have been fatal, one to the throat, the other to the heart. It also disclosed injuries inflicted after death. Firstly, the penis and scrotum had been cut off and were found in a separate plastic garbage bag near the body. Second, the anus showed evidence of traumatic injury. Third, there was a long incised wound on the right thigh extending down to the bone, with six superficial marks at the site, consistent with being saw marks. There was no substantial issue at the trial as to these matters. 6 There was also evidence that the death occurred at least five days prior to 10 August 1999, from the condition of the body and also insect fauna found on the body. It was contended for the appellant at the trial that the insect fauna suggested that the body had been there no more than about five days, although the expert who gave evidence said it could have been somewhat longer. 7 The appellant, who was aged forty-five in 1999, had been a friend of the deceased's mother, Jeanette Gregory, for some years. Mrs Gregory had lived close to the appellant's house in Anderson Street, Bayldon, with her three children, Matthew, Luke (the deceased) and Jamie. She was a single mother. The appellant used to take the boys on fishing and camping trips. In mid-1999, Mrs Gregory moved to Bonville, a suburb about 14 kilometres from Bayldon. The deceased commenced to spend much of his time at the appellant's home and sometimes in the home of other friends in the Bayldon area. 8 Evidence was given by the deceased's mother that about two weeks prior to his death, that is in about mid July 1999, the deceased returned to her home. According to the mother, the deceased was visibly upset, and when questioned by her, told her the appellant had said to him that he could keep a puppy at the appellant's house if the deceased allowed him, the appellant, to "suck his doodle". Mrs Gregory advised the deceased against returning to the appellant's home, but the deceased said he could look after himself, and was going to sleep with a knife under his pillow or mattress, to protect himself and another boy from the appellant. 9 It is the admission of some of that evidence that is challenged on this appeal. 10 Another acquaintance of the deceased, James Nelson, who was the father of two friends of the deceased, gave evidence that the deceased stayed with him between about 18 July and 22 July 1999. According to Mr Nelson, when he arrived, the deceased said he had spent the previous night at the appellant's home with a friend, and also said words to the effect: "I sleep with a knife under my pillow, I don't trust Dave", Dave being the appellant. 11 Some time after this, the appellant collected the deceased from Mr Nelson's house. It is not entirely clear on the evidence whether this was on 22 July or Wednesday 28 July. In any event, it is clear that the deceased spent the night of Thursday 29 July at the appellant's house. The appellant on that day was helping Helen McIntyre, the ex-wife of his brother, in a move; and at about 10pm on that day the appellant and Mrs McIntyre went to the appellant's house, where they found the deceased sleeping in the rain on the front veranda of the house. 12 On Friday 30 July, the appellant was again helping Mrs McIntyre with her moving, and was with her until about 9pm, although it appears that he returned to his own house at about 4pm in the afternoon for a brief visit. On that day, the deceased spent the afternoon in the company of some friends. One of them, Jason, had a car with a flat battery, and he offered to take the deceased and others joyriding if a battery could be found. The deceased gained access to the appellant's home through a window, found the appellant's car keys, used them to open the bonnet of the appellant's car, and took the battery from the appellant's car, an unregistered Chrysler Scorpion. The battery was put into Jason's car, and Jason drove the deceased and some friends to the home of another friend. 13 Somewhat later, the police arrived and made enquiries about the stolen car battery, which they recovered. The police had in fact been contacted by the appellant, who discovered the theft of the battery when he returned home, apparently about 9 o'clock, and was told by a neighbour that the deceased and some friends had been seen at the car. 14 According to evidence of some of the deceased's friends, the deceased left them at about 10.30pm that evening, saying he was going to stay at the appellant's home and walking off in that direction. 15 On the morning of Saturday 31 July, one of the deceased's friends went to the appellant's house and asked if the appellant had seen the deceased. The appellant replied to the effect that he had not seen him since the previous afternoon. 16 Later that morning, the appellant's sister-in-law took the appellant to a family property at Glenreagh for the weekend: this had been pre-arranged. On the way, the appellant dropped a receipt at the police station, which had been required so that he could collect his battery from the police. 17 On the evening of Sunday 1 August, the appellant's half-brother drove the appellant back to the appellant's home, taking with them a battery from a farm utility. The appellant installed this battery in his car, then the two of them set off in two cars to go back to Glenreagh. On the way, the appellant stopped and the half-brother also stopped, and the appellant told him that he wanted to go to the toilet. Then the appellant turned into Sealy Lookout Road, and he joined his half-brother some time later. 18 On Monday 2 August the appellant's sister-in-law drove the appellant back to his home. 19 On Thursday 5 August the appellant obtained a loan of $700 from Fast Finance, and between 6 and 8 August he made arrangements for his carpets to be cleaned. 20 On 7 or 8 August, neighbours saw the appellant hosing down a concrete path outside his back door and the area where the appellant normally parked his car. 21 On 9 August a carpet cleaner came. According to his evidence, he saw a pattern of staining in the second bedroom, about one foot in diameter, and around the doorway of the lounge room. He used grease release to uplift these stains, this product being able to remove a variety of stains including blood. He saw the appellant washing the wall of the second bedroom adjacent to a waterbed there. 22 On Thursday 12 August, another neighbour noticed that the appellant's garbage had not been emptied, that there was mattress material protruding from it. 23 On 14 August the police executed a search warrant on the appellant's home. Their evidence was that they found a heavily stained foam mattress in a garbage bin in the rear yard of the premises, which had been cut into pieces. The staining on the mattress returned a positive presumptive test for the presence of blood. The interior of the bin also had staining, which returned a positive presumptive test for the presence of blood. The police found a saw located in the garbage bin, which had some staining and which also returned a positive presumptive test for the presence of blood. Pieces of a foam mattress were found under the house, portions of which fitted with those found in the garbage bin. A pair of boy's Nike joggers with staining was located in a bag hanging on a wall under the house. The staining returned a strong positive result for blood. Residual staining was observed on the carpet in the second bedroom of the appellant's home: this staining returned a positive result for the presence of blood. There were also other observations made. 24 The police took possession of the appellant's vehicle subsequently, from the Glenreagh property. An examination of the boot of that vehicle revealed apparent blood staining on a black mat, together with flaky deposits of dried blood. 25 Evidence was called from a DNA expert. That was to the effect that the DNA recovered from the mattress and the black mat in the car had the same DNA profile as DNA recovered from the deceased, and that fewer than one in ten billion people in the general population had that DNA profile; and that the DNA recovered from the carpet in the second bedroom had the same DNA profile as the DNA recovered from the deceased, and that that DNA profile could be found in approximately one in 7.5 million people in the general population. 26 The appellant gave evidence, denying any involvement in the deceased's murder and denying that he had seen the deceased after about 4pm on Friday 30 July. He gave evidence also that the mattress which had been found in the bin had been moved from the second bedroom to under the house in about June 1999, and that during the week commencing 9 August 1999 he had noticed that this mattress had a stain on it, which he thought was due to something a dog had brought in under the house. It was then he said that he cut the part of the mattress with the stains and placed it in the garbage bin. 27 The appellant also gave evidence that there had been occasions when the deceased had cut himself and had bled while staying at the house. 28 The appellant agreed there had been an occasion when the deceased asked if he could keep a small dog at the appellant's house, but denied making any sexual suggestion to the deceased. 29 In relation to cleaning the house, the appellant said he had been thinking about doing it for a while. He said he was delayed in doing it because he had been doing work for his brother, and he also had to obtain a loan so he could have the carpets cleaned. He stated that it was his practice from time to time to hose down his driveway and front path to get rid of dirt and dog hair. 30 Focusing now on the issue on this appeal, at the trial the appellant's Counsel took objection to Mrs Gregory's evidence about the deceased's statement concerning a sexual suggestion said to have been made by the appellant. 31 The trial judge found that this evidence was not excluded by the hearsay rule by reason of s.65 of the Evidence Act, which is as follows: 65(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. The trial judge found that this evidence fell within paragraph (b) and also within paragraph (c) of s.65(2). No challenge is made to that finding. 32 Dealing with the substantial questions of whether the evidence was relevant and whether the risk of prejudice outweighed its probative value, the trial judge said this: 29. I am of the view that the deceased's representations concerning the sexual advance said to have been made (sic) him by the accused may be admitted as first hand hearsay pursuant to s.65 of the Act. It remains to consider whether this material meets the test of relevance. As I have noted, the Crown presses it as evidence of the relationship between the deceased and the accused. In R v Frawley (1993) 69 A Crim R 208 Gleeson CJ at 220 observed: "One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question."