New South Wales Court of Criminal Appeal CITATION: REGINA v YEO [2005] NSWCCA 49 HEARING DATE(S): 7 July 2004 JUDGMENT DATE: 23 February 2005 JUDGMENT OF: Sheller JA at 1; Sperling J at 2; Adams J at 3 DECISION: Appeal against conviction dismissed; Leave to appeal against sentence granted; Appeal against sentence dismissed CATCHWORDS: CONVICTION APPEAL - joint trials - whether separation wrongly refused - nature of prejudice - retrial following quashing on appeal - whether Crown significantly changed case - whether bound by way first trial conducted - whether abuse of process - conviction upheld - SENTENCE APPEAL - significance of bail conditions - whether double punishment - appeal dismissed Criminal Appeal Act 1912 s6(1) LEGISLATION CITED: Evidence Act 1995 ss72, 137 R v Keyte (unreported, NSWCCA 26 March 1986) CASES CITED: R v Herbert (unreported, NSWCCA 4 November 1993) R v Fowler [2003] NSWCCA 321 Regina PARTIES: v Keng Hwee (Kathy) YEO (Appellant) FILE NUMBER(S): CCA 60425/03 D Frearson (Crown) COUNSEL: P Byrne SC with G Bashir (Appellant) S Kavanagh (Crown) SOLICITORS: C Bilinsky (Appellant) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 70040/98 LOWER COURT JUDICIAL OFFICER: James J IN THE COURT OF CRIMINAL APPEAL 60425/03 SHELLER JA SPERLING J ADAMS J Wednesday 23 February 2005 REGINA v Keng Hwee (Kathy) YEO Judgment 1 SHELLER JA: I agree. 2 SPERLING J: I also agree. 3 ADAMS J: INTRODUCTION 4 On 15 May 2002 the appellant was convicted following trial before James J and a jury of the murder of Christopher Mark Dorrian on a date between 5 and 10 June 1997. She was jointly tried with a Mr Raymond Galea, who was charged with being an accessory after the fact to the same murder. The jury was unable to agree in respect of Galea and he was discharged. Both the appellant and Galea had been earlier tried for Dorrian's murder and, in the alternative, of being accessories after the fact. The appellant was convicted of murder but Galea was acquitted of murder and convicted, instead, of being an accessory after the fact. Both these convictions were quashed by this Court and new trials ordered. It followed, of course, that Galea could not be retried upon the murder charge of which he had been acquitted. The appellant did not give evidence at either trial. 5 The appellant submitted in this Court that, at the earlier trial, the Crown case was that one of the appellant and Galea shot Dorrian and the other was an accessory after the fact. This oversimplifies the position. The Crown case was, principally, that Dorrian was murdered in the execution of a joint enterprise of both accused but, in the alternative, the jury would conclude that one was the murderer and the other an accessory after the fact. 6 At the outset of the trial that is the subject of the present appeal each of the accused sought a separate trial. These applications were refused. A number of the grounds of appeal now brought complain, in different ways, that the failure to separate their trials, in the event, caused a miscarriage of justice. In the appellant's written submissions to this Court, she did not, contend that the evidence – including the impugned material – could not justify the verdict. Rather, it was argued that the trial miscarried because of the manner in which the Crown conducted it as compared to its conduct of the first trial. I return to this issue below. (There was some suggestion during argument that the appellant's contention that the verdict was unreasonable under s6(1) of the Criminal Appeal Act 1912 was not limited to what I might call the inconsistency of approach ground. However, it is clear that this was not the case.) Outline of the Crown Case 7 On 21 June 2001 a black bag and jacket were found on the southern bank of the Cooks River. The bag contained Mr Dorrian's head and some sundry items of no particular significance. The police noted some distinctive shoe marks at the scene but these were never matched to any particular shoes. On the following day a police diver, searching for evidence in the river, noticed a depression and marks on the bottom that indicated that something had been dragged from that point to the bank. 8 Examination of the head disclosed several cuts to the vertebrae, two gunshot entry wounds and three bullets. The head had been severed at the fifth vertebra, using a large cutting implement, such as a machete, meat cleaver or tomahawk and a saw-like instrument. Dr Bradhurst, the pathologist, estimated the date of death as two to four weeks before discovery of his head. 9 It was not controversial that the three spent bullets that were removed from Dorrian's head on autopsy were fired from a High Standard Citation .22 calibre pistol which was owned by Galea and kept in a safe in his premises. 10 The appellant and Galea had lived together as man and wife for some years, although they had separated several times. The appellant had been employed at Rozelle Hospital since 1992, becoming a clinical nurse specialist in drug and alcohol rehabilitation. Dorrian had admitted himself in April 1997 as a patient at Palm Court, a drug and alcohol rehabilitation unit at the hospital, leaving two weeks or so later. It is clear that the appellant developed a relationship with Dorrian which went much further than a conventional and appropriate nurse/patient relationship, although she was not responsible either directly or indirectly with Dorrian's treatment or management. This became known to or, at least, suspected by co-workers and came ultimately to the attention of her superiors. She was interviewed several times in May and June 1997 and denied any impropriety, explaining her contact with Dorrian as innocent. However, on 26 May 1997 the appellant had leased a unit for six months in Lilyfield, having attended the real estate agent with Dorrian and, as she told the police, they moved in four days later. Of course, this gave an entirely (and unambiguously) different complexion to the nature of their relationship. In ignorance of these facts, no action was taken by the hospital and the appellant was merely reminded of her professional obligations. As it happened, the appellant had previously been interviewed concerning a suspected improper relationship with another client of the clinic, Mark Benjamin, which she also denied. In fact, the appellant had had a continuing relationship with Benjamin. 11 The Crown argued that the relationship with Dorrian ended with recriminations and one likely motive that the appellant had for killing him was that he might expose their relationship to the hospital management. 12 The following account is taken in the main from the appellant's interview with police on 1 July 1997 (in which she denied any involvement in or knowledge of Dorrian's death). The unit into which the appellant and the deceased moved was clean, with the carpets smelling of detergent. Everything went well until 4 June 1997 when the deceased arrived home. He had been drinking. The appellant and he argued and Dorrian pushed her and slapped her across the face. Although this was not their first argument, this was the first time he assaulted her. Dorrian spoke loudly and the appellant thought that perhaps the neighbours had heard him. Dorrian got dressed and headed out the door. The appellant telephoned Galea (with whom she had been in a long term relationship only shortly before she commenced co-habiting with Dorrian) and asked him to come and collect her. A short time later, Dorrian returned, and told the appellant it was too cold to go out and he had to get up early for work. He had a black bag that the appellant had not seen before which Dorrian told her he had found at a bus stop. (The appellant saw the black bag when she returned the next morning.) The appellant left and was picked up by Galea in his car shortly after. The appellant told Galea about the fight but asked him not to become involved. Galea drove the appellant to her music lesson at Earlwood at about 8.30 am on 5 June. He picked her up about 9.45 am and told her that he had gone in the meantime to the unit and spoken to Dorrian about the argument. Galea told the appellant that Dorrian said their relationship was over. When the appellant returned to the unit there was another argument with Dorrian. He left for work, taking the black bag with him. During a later telephone call there was another argument and Dorrian repeated that their relationship was over. After both returned to the unit late that night Dorrian, who was so drunk that he could not stand up, told the appellant that she had ruined his life and that he hated her. He spoke loudly. On the following morning the appellant decided to move out of the unit. Galea agreed to help. The appellant told Dorrian that she was going to return to Galea. Dorrian said that he would stay in the unit until he found something cheaper but would not tell her when he was leaving. 13 Galea and the appellant returned to his house at Marrickville. Early that evening the appellant spoke to the deceased by telephone. He sounded drunk but was lucid and told her he missed her but the relationship was over. He said that he would be prepared to have a purely physical relationship with the appellant but without any commitment. The appellant said she was saddened by this as she and Dorrian had, before moving in together, talked about getting married and having children. 14 Later on the evening of 6 June 1997, the appellant went out to a café in Newtown with a friend, Ms Sansour, returning to Marrickville and Galea at about 10.30 pm. Galea had returned the appellant's keys to the house to her, which she had given him when she left on 1 June. The appellant and Galea spent 7 June together, amongst other things going to the unit to collect her belongings. The appellant had earlier attempted to call Dorrian but he had not answered. Leaving Galea in the car, the appellant entered the unit. She noticed that Dorrian's belongings were gone, together with some furniture. Galea came to the unit and they took her belongings. She told him she would need to return the following day to clean the unit. They left the unit at about 8 pm and returned to Marrickville about an hour later, remaining there for the rest of the night. 15 There was circumstantial evidence, not in dispute, that strongly suggested that Dorrian had been killed by the morning of 6 June 1997. The appellant, the Crown alleged, had called Dorrian's employer on 7 June to say that he would not be coming to work, although the two of them were separated and there appeared to be no reason – other than a sinister one – that she would know this. 16 On the morning of 8 June, Galea and the appellant returned to the unit with a vacuum cleaner and cleaning materials. The appellant said that, whilst cleaning the kitchen, she accidentally knocked over the bucket of soapy water, which soaked the edge of the carpet. She and Galea left the unit just after lunchtime and eventually returned to Marrickville. On the following day the appellant went to work until mid afternoon, when she was picked up by Galea and they went to the Lilyfield unit. She said there was no sign that anyone had been there. She and Galea attended a function and then went to a café in Newtown and returned home for the night. 17 The Crown case was that the appellant had taken the gun from the safe in Galea's house and shot Dorrian in the unit. The Crown accepted that the shooting may well have occurred without Galea's knowledge. She then obtained Galea's help to dismember the body and dispose of the remains, of which only the head was found. They then returned to the unit to clean it. Despite this, blood identified as Dorrian's was found in several places. The linoleum in the kitchen had some small cuts and indentations. Events after the murder 18 On 10 June 1997 the appellant terminated the lease on the unit, telling the agent that she was going interstate. She mentioned the cleanliness of the unit and told her that she had spilt some detergent on the carpet. On this day, Galea took the appellant to work and collected her about 3.30 pm. 19 On 24 June 1997, police went to Galea's Marrickville home and obtained a number of guns from a small safe to which, both Galea and the appellant asserted, there were only two keys. One of the guns was the High Standard Citation .22 calibre pistol later found to have fired the bullets found on Dorrian's autopsy. The appellant said that Galea had possession of one of the keys, that the spare key was kept in a showcase cabinet and that only she and Galea knew where this key was hidden. 20 It is obvious that the most significant fact in the Crown case was the use of this weapon, as pointing to the guilt of either Galea or the appellant or both. It is extremely unlikely that some unknown intruder entered their home, opened the safe with concealed key, took the gun from the safe, shot Dorrian and then re-entered the house and returned the gun and the key to their respective places. 21 The appellant said that she held a current pistol licence and was a member of a pistol club from December 1994 to December 1996, normally using Galea's High Standard .22. The appellant also told police that, on 28 June 1997, she and Galea had returned to the house to find the spare key in the safe. There was no sign of forced entry nor was anything missing. The appellant said that she had told Dorrian that Galea kept firearms at his house but not where the spare key was kept. She also told police that Dorrian had told her "that he'd done some terrible things in his past…that he'd ripped people off and cheated people". 22 Evidence as to the movements of the appellant was capable of establishing that she had the opportunity and the means of killing Dorrian on 6 June, the alleged date of his death. 23 Following the commencement of the police investigation, the police used electronic surveillance devices to record conversations by Galea and the appellant. The Crown relied on parts of these conversations as consciousness of guilt. The admissibility of this material, which was at the least suspicious, is not in contention and it is not necessary to refer to its detail. 24 The Crown also called evidence of the relationship between Galea and the appellant which showed, amongst other things (so it was contended) that Galea was so infatuated with her that he was likely to have been induced to help with disposal of Dorrian's body. Recordings of conversations between Galea and the appellant, the Crown argued, gave some support for the contention that the appellant was the dominant partner. 25 As I have mentioned, the strongest evidence that the appellant and Galea were implicated in Dorrian's murder was the fact that the murder weapon was Galea's pistol. More difficult was the requirement that the Crown establish – in both cases – that the appellant, rather than Galea, had committed the murder. I have referred to some of the matters relied on the Crown for this purpose and mention others below. The Crown relied on a number of other matters not calling for mention here except to say that, whilst they could be regarded as incriminating, they were consistent with the appellant being either the killer or the accessory after the fact. The Crown case against the appellant as the murderer thus depended to a large degree on the evidence of motive and of the relationships between Galea and the appellant and between each of them and the deceased. That this needed to be given in detail seems to me to be obvious. It is in this context that the complaints that (what I might call for convenience) the personal evidence was of too intimate a character must be evaluated. The application for a separate trial 26 An application to separate the trials was made by Galea at the outset and then joined by the appellant. James J noted that neither the Crown prosecutor nor defence counsel "made any detailed examination of the evidence the Crown would propose to lead at the trial and, in determining the applications, I have had to rely on fairly general statements made by counsel from the bar table about the nature of the evidence proposed to be adduced…" His Honour noted that that counsel had not referred to any particular piece of evidence which would be admissible against one accused only and which would be seriously prejudicial to the other. James J pointed out that defence counsel's main argument was that each might seek to conduct the trial in a way that was prejudicial to the co-accused. Mr Spencer of counsel for the appellant informed James J that, if permitted, he would seek to put to the jury that Galea might have killed Dorrian and that, unless the Crown succeeded in excluding this as a reasonable possibility, his client must be acquitted. The Crown prosecutor rightly conceded that such a case was not excluded by Galea's earlier acquittal of murder. As his Honour pointed out, such an argument could scarcely prejudice the appellant. Other arguments were put by Mr Spencer and rejected by James J that do not call for further mention. His Honour concluded that there was no significant difference in the evidence to be led in each case, except for the material in the interviews with the police, and that there was no evidence admissible against only one of the accused that was seriously prejudicial to the other. 27 I consider that James J was correct in rejecting the application and permitting the appellant and Galea to be jointly tried. This is especially so having regard to the proposed line of the appellant's defence that Galea may have committed the murder with which she was charged. Was the trial unfair in the result? 28 It is argued on this appeal that the evidence which came to be admitted in the course of the trial and the way in which the trial was conducted by the Crown prosecutor and by Mr Hogan of counsel for Galea caused the appellant's trial to miscarry by reason of unfair prejudice thus occasioned to the appellant. I note that, although Mr Spencer made claims of such prejudice from time to time, he never sought a discharge of the jury. It will be seen that many of the complaints made in this Court (though mostly also raised below) are very much matters of impression, requiring a judgment as to whether they may have unfairly prejudiced the jury against the appellant in the trial context. In such a case, the fact that very experienced counsel did not seek to have the jury discharged may be a significant indicator of the extent of the prejudice as it was perceived in that context. Of course, later reflection at a time when the whole of the trial can be observed and analysed may give a quite different and much more adverse impression of the extent of the prejudice and counsel may quite legitimately contend on appeal that the trial miscarried even though no application to discharge the jury was made. But that is not to gainsay the significance of an omission by counsel at trial to seek a discharge. 29 In the result, I have concluded that no unfair prejudice was occasioned to the appellant by the impugned material, considering the matter entirely independently of the failure to seek a discharge of the jury. However, it would less than candid for me not to acknowledge that the fact that counsel omitted to do so confirmed my own view of the case. 30 The sections that follow deal with the particular complaints made by the appellant on this appeal. The evidence of Mark Benjamin 31 Mark Benjamin was a former patient of the appellant at Palm Court, having been admitted for about six weeks from October 1996. He had been her lover prior to her relationship with Dorrian, at a time when she was living with Galea. When the trial commenced it was not expected that he would be a witness, as the police had not found him. However, he was located on the twenty-second day of the trial and the prosecutor indicated that he proposed to call him to give evidence. Counsel for the defence then took a number of objections to parts of Benjamin's statements which the prosecution proposed to adduce. 32 Benjamin's relationship or possible relationship with the appellant had already been the subject of evidence. There had been evidence that Benjamin's primary nurse during his admission had observed that the appellant was spending a lot of time with him. She said that the appellant instructed her that she (the appellant) was taking over Benjamin's care as his primary nurse. This was reported to management. The Acting Deputy Director of Nursing, Ms Blair, spoke to the appellant about allegations that she was in a sexual relationship with Benjamin. The appellant became very distressed, began dry retching and ran from the room. In effect, she denied the allegations. (I interpolate here that it was submitted in this court that this evidence should have been excluded as unfairly prejudicial since it suggested, it was contended, that it showed that the appellant was adept at feigning distress. It was not part of the Crown case that this was established. The point of the evidence was to prove that the appellant was indeed very distressed at the prospect that she might suffer some disciplinary action. Ms Blair said she believed her. Furthermore, it is part of the normal range of human behaviour that, as with lies, feigning emotions is part of the ordinary armour of all but the most exceptional. The fact that a person did this is not unfairly prejudicial in the sense that a jury would be likely to use it improperly. This submission is unconvincing.) No action was taken by the hospital. It is clear that a relationship such as was alleged would have been grossly improper, that the appellant was aware of this and that she was very troubled at the prospect of exposure. A nurse, Norbert Alcala, had acted in a support role when the appellant was interviewed about allegations that she was having a sexual relationship with Benjamin and, he said, vehemently denied them. He disclosed in cross-examination by Galea's counsel that he became aware, within a couple of weeks, that Galea believed that the appellant was having an affair, although Galea did not know it was Benjamin. 33 It is obvious that one of the possible motives that the appellant had for killing Dorrian was her fear that he might disclose their relationship, a fear that – the jury could have considered – was very evident in her extreme reaction when Ms Blair put to her the allegations that had been made about the existence of such a relationship with Benjamin. 34 Mr Spencer objected only to the Crown adducing parts of Mr Benjamin's statement, in particular, to evidence of his and the appellant's sexual relationship, describing it as mere "smearing". The prosecutor submitted that this evidence was relevant as the extent of the relationship and what it led to was important in explaining the significance of the later investigation by the hospital authorities of the appellant's relationship with Dorrian. Mr Spencer conceded, to an enquiry from James J, that the appellant's relationship with Benjamin was relevant to understanding how he came to help with the appellant's moving back in with Galea and explaining why she trusted Benjamin to the extent of writing a note to him about the house and the telephone being tapped, but submitted that there "might" have been an over-emphasis on the sexual character of their relationship. 35 The concern expressed in Mr Spencer's submission strikes me as exaggerated in the opening years of the 21st Century. It is most unlikely that a modern jury would consider anyone would be more likely to commit a serious crime, let alone murder, merely because of a sexual relationship outside a relationship such as that as Galea's and the appellant's, even if it were clandestine. At all events, it appears that the relationship between the appellant and Galea was not one which was necessarily based on an understanding of mutual monogamy. Nor do I accept that any adverse view would be taken in this day and age of the frank expression of sexual desire between lovers such as Benjamin and the appellant unquestionably were. Of course, proof of positive dishonesty or deceit may lead to adverse inferences as to credibility but (depending on the circumstances) I am sceptical that such evidence would be unfairly prejudicial in the sense that a jury would be likely to give it inappropriate significance. This point, however, was not the objection taken by Mr Spencer. Since it was uncontroversial that the appellant had lied to the management at the hospital about her relationships both with Benjamin and Dorrian and that both those relationships were, at the least, unprofessional, it is difficult to see how the additional fact that she was in a relationship with Galea added anything more adverse to the picture. Moreover, all these facts were undoubtedly relevant for other cogent reasons. James J warned the jury that, although the appellant's lies, for example, to nursing staff, might adversely affect her credibility they could not be used as evidence that it was more likely that she murdered Dorrian. 36 Benjamin said that he and the appellant had a sexual relationship whilst he was a patient at Palm Court in October 1996 and continuing after he left on 13 November 1996. They talked about moving in together but it did not occur. He was aware that the appellant was then living with Galea. He was living in a unit at Marrickville. On 3 December, he found a note from the appellant that had been slipped under the door of his unit. That note was tendered without objection. It was innocuous, as far as it went, stating that she was in the area, "called by to say hi", "hope you're OK" and suggesting that he call her at work "if you feel like it". There was an additional note which was also innocuous and provided the appellant's silent phone number. Benjamin said that at this time he was seeing the appellant almost daily. Shortly after getting the note, Benjamin received a letter dated 3 December 1996 from the appellant. 37 The Crown sought to tender the note. Mr Spencer submitted – "I would have thought at this point in the trial there is more than ample evidence of the relationship between Mr Benjamin and Ms Yeo. Indeed, this morning it has been elicited from…[Mr Benjamin] what has occurred over the period of the relationship. The letter of course is indicative I suppose of the extent of Ms Yeo's feelings for Mr Benjamin, a matter not really in issue in this trial. The relationship between Ms Yeo and Mr Dorrian is something that is important to the Crown case. The depth of, state of mind of her relationship with Mr Benjamin in my respectful submission is not. The state of mind of Mr Galea concerning the relationship is, but certainly not Ms Yeo's state of mind concerning Mr Benjamin. It is not an issue that it is necessary for the Crown to prove, having proved conclusively that there was a relationship existing during the time when she was living with Mr Galea. This document really will only inflame the jury's view of Ms Yeo. My submission has been at the start of the trial [that] a lot of the material that is put in under the guise of motive or state of mind has the effect of poisoning the jury in relation to Ms Yeo in that she is painted as his promiscuous woman which is not what this trial is about…This repetitive detail, particularly the document, of Ms Yeo's feelings for Mr Benjamin is unnecessary, probative of nothing and unfair to the accused. There is nothing important in the Crown case that has not been already adequately demonstrated." Mr Hogan, Galea's counsel, took no objection to the tender of the letter. 38 In dealing with this objection, it is worth noting that Mr Hogan had extensively cross-examined police officers to establish that Benjamin was a suspect and that the nature and extent of his relationship with the appellant justified the suspicion that he had either killed Dorrian or was accessory after the fact to his murder. Mr Spencer said that he had not suggested that Benjamin had killed Dorrian or was an accessory after the fact and submitted that, so far as his case was concerned, the letter was "just another smear" and complained that this was a consequence of the joint trial as Mr Hogan's case had caused the tender. 39 The appellant's letter was eloquent of her passionate love of Benjamin. Of itself, it did not and could not have been regarded as reflecting badly on her. Contrary to Mr Spencer's submission, its reference to sex, though unmistakeable, was conventional and undescriptive: overwhelmingly, it expressed the appellant's emotions and hopes regarding Benjamin. 40 Benjamin gave evidence that, before Christmas 1996, Galea discovered that he and the appellant were having an affair. He said they met in a park in Marrickville, in the course of which the appellant said to Galea, "I don't want Mark hurt." The appellant also gave Benjamin a Valentine's Day card in 1997. However, at about this time Benjamin said that his sexual relationship with the appellant ended and, when he saw her in the street on her birthday (16 March 1997) she was cold and standoffish. Benjamin's oral evidence referred to the continuing and frequent meetings with the appellant during their relationship and the fact that sexual conduct to a greater or lesser degree occurred on most, if not all, of them. 41 On 1 June 1997, Benjamin (who lived relatively near to Galea's house in Marrickville) saw Galea putting boxes in the back of his car. Galea told him that the appellant was moving in "with a doctor who drives a sports car" whom she had met at the hospital. It is clear that this was a reference to the appellant's moving in with Dorrian though, of course, he was a patient not a doctor. Benjamin helped Galea to pack the car and unpack at the Lilyfield unit. A few days later, on 6 June, Benjamin saw Galea unpacking boxes from his car outside his house. Galea said that the appellant was returning and added, "It seems the boyfriend was a client". He also said that he (the boyfriend) had been violent and had a bad background. Benjamin went to Palm Court some time later and was told in general terms that police were investigating the murder of one of the clients, who had an affair with an unidentified member of staff. He received a note that police wanted to interview him. Two weeks later, on 14 July, he went to the Marrickville house where Galea and the appellant were living. That conversation was recorded covertly by police. The appellant told Benjamin to be quiet and gave him a note to the effect that the house and telephone were tapped. Benjamin said that she told him that she was "sorry for getting you involved", that Galea had nothing to do with it and, in effect, that when she had last seen Dorrian he was alive, that she tried to telephone him "but he disappeared". She also said that she was concerned for her safety "because apparently Chris was involved with Neddy Smith". This conversation was plainly admissible in the appellant's case. It needed to be evaluated in the context of the appellant's relationship with Benjamin. 42 As I have mentioned, the Crown case was that the appellant's motive for killing Dorrian was, in part at least, to minimise the risk of an investigation by the management of the hospital where she worked disclosing her relationship with him, about which she had lied. The extent of her concern about this issue was shown by her strong reaction to the allegations when they were first raised with her. The fact that this was the second occasion upon which these allegations had been made and that she had been counselled following the first occasion was relevant to understanding the extent of her concern. Quite apart from any interest that Galea's counsel might have had in attempting to construct a case that Benjamin was either the killer or had helped dispose of the body, the evidence of Benjamin was relevant to the Crown case against the appellant. In my view it would have been admissible against her, even if she had been tried alone. The jury was warned by James J not to use this evidence as justifying a conclusion that the appellant had a tendency to have sexual relations with clients at the clinic or as making it more likely that she behaved in any particular way towards Dorrian. There is no reason to suppose that this warning was inadequate. Although it is correct that Mr Spencer did not suggest, unlike Mr Hogan, that Benjamin had killed Dorrian, yet his involvement with Galea and the appellant must have raised the question in the jury's mind as to whether it was a possibility that he was in some way involved. The relationship of Benjamin to the appellant and, hence, with Galea was relevant to evaluating this remark and its implications. The mere fact that he had helped the appellant to move out and then return to the Marrickville house raised this suggestion. The specific allegation did not need to be made. It was implicit in the appellant's case that someone else had killed Dorrian. Benjamin may have been a candidate. The truth about his prior relationship with the appellant was undoubtedly relevant to a consideration of the reasonableness of this possibility. Mr Hogan indicated that he relied, in part, on Benjamin's evidence of his relationship with the appellant and the appellant's affectionate letters to him to found a case that it was he who had killed Dorrian or assisted the appellant to dispose of Dorrian's body. A reasonable possibility that either of these hypotheses was true must have led to Galea's acquittal. From the prosecution's point of view, it was necessary to prove against both Galea and the appellant that Benjamin did not kill Dorrian. Amongst other things, Benjamin said in chief, after the prosecutor refreshed his memory from his statement, that Galea had said to him that he had told Dorrian that if Dorrian "hurt one hair on Kathy's [the appellant's] head he would hurt him". Not surprisingly, Mr Spencer relied on this evidence in the appellant's case. 43 Mr Spencer made no application at this point for a separate trial. It is clear that the mere fact that two accused run cut-throat defences will not justify separate trials. But Mr Spencer's omission may also have resulted from legitimate tactical considerations: his client would have the benefit of Mr Hogan's urging the jury to accept the reasonable possibility that Benjamin, and not the appellant, had killed Dorrian, whilst maintaining an objection to the admissibility of the evidence of the relationship between the appellant and Benjamin. However this may be, I do not doubt that Mr Spencer's declining to seek a separate trial when the scope of Benjamin's evidence became clear and the attitude of Mr Hogan made explicit, was a deliberate and informed decision, having regard to the myriad factors that the trial presented for his judgment. 44 In my view, as I have explained, the evidence of the appellant's relationship with Benjamin was relevant in the prosecution case against her. It was cogent – indeed it was not controverted at all – and significant. There was some immaterial prejudice that arose from it, namely that the jury might have inferred that the appellant had a tendency to conduct inappropriate sexual relationship with clients of the clinic. This prejudice would only have been slight, since it was not controversial that she had such a relationship with Dorrian and that she also had such a relationship with Benjamin was conceded to be relevant. It is also true that she lied about her relationship with Benjamin to the hospital administration, but this was (as I have said) directly relevant. Moreover, it was not controversial that she had lied to the administration about her relationship with Dorrian. The jury were warned about the inappropriate use of lies and drawing any adverse conclusions about the appellant from her relationship with Benjamin and Dorrian. 45 In summary, since the nature of the relationship between Benjamin and the appellant was relevant to the Crown case against the appellant and since the letter was not unfairly prejudicial, it was properly admitted against her. 46 James J had left open at an early stage the extent to which Benjamin's evidence was admissible against the appellant, it being conceded that it was all admissible in the case against Galea. At the close of Benjamin's examination in chief his Honour invited Mr Spencer to indicate clearly whether he took objection to any part of Benjamin's evidence as admissible against the appellant. Mr Spencer said he did not. For the reasons which I have given, this concession was entirely appropriate. Moreover, Mr Spencer did not submit to James J that he was prejudiced by the course that his Honour proposed of not ruling until later as to what part of this evidence what admissible against the appellant. 47 Somewhat later in the trial, whilst Mr Hogan was cross-examining Chief Inspector Williams, the Crown prosecutor sought to tender at Mr Hogan's behest part of a tape recording of a conversation between Galea and the appellant after Benjamin had left the Marrickville premises on the occasion to which I have referred. The sense of the conversation was capable of being understood as Galea revealing his innocence so far as the disposal of the body was concerned and, as far as the appellant was concerned, that she was aware of the identity of the person who disposed of the body. This, if rightly understood, implied at least her knowledge of the circumstances of the matter and thus her implication in the murder rather than Galea. As I have said, in the appellant's case whether Galea was the murderer was a live issue that the Crown had to deal with, since it was clear that, if it was reasonably possible that Galea had murdered Dorrian rather than the appellant – a case that was available in the appellant's trial but not in Galea's because of his earlier acquittal – the appellant must have been acquitted. Accordingly, evidence that supported the conclusion that Galea was not Dorrian's killer was plainly relevant in the appellant's case. During argument James J raised this as a possible basis for admission. The prosecutor adopted the point. This was quite proper. Of course, the conversation needed to be considered in light of the evidence that both participants believed the premises to be bugged and, therefore, that what they said may have been to a greater or lesser extent calculated. But that was a matter which the jury was well able to evaluate. 48 Why the Crown had not earlier tendered this material is not altogether clear. But it matters not. Mr Spencer did not suggest he was prejudiced for lack of warning. Indeed, Mr Spencer, in his opening to the jury, had said that he might suggest at the end of the trial that it was a reasonable possibility that Galea and not the appellant had killed Dorrian. 49 The only part that was sought initially to be tendered concerned discussion about the investigation which revealed the point sought to be relied on first by Mr Hogan in his case and then by the prosecutor against both accused. The rest of the tape, in which Galea and the appellant argued about her relationship with Benjamin, was put in at Mr Spencer's insistence that the entire conversation should be before the jury despite his submission that it was irrelevant to the issues in the trial. In my view, that material was not truly useful in appreciating the sense of the discussion about the investigation but it was, in effect, tendered at Mr Spencer's instigation. At all events, it was not unfairly prejudicial to the appellant in light of the other evidence. 50 In this Court it was submitted that "the appellant's knowledge of the murderer formed no part of the Crown case against her". The Crown had, however, submitted below that her knowledge of the murderer or of the accessory is "relevant to the case against her…[as] the killer." The Crown submission was plainly right and, accordingly, the appellant's submission should be rejected. 51 I have already mentioned the possible significance of the appellant's lies. The Crown conceded that they were not evidence of consciousness of guilt. So far as they concerned what was told to the hospital authorities about her relationships with Benjamin and Dorrian they were probative of her guilt as going to a possible motive for killing Dorrian. So far as they concerned what she told Galea, they were relevant to understanding their relationship, which was at the centre of the case both against her and Galea which was that they were jointly involved (an attempt at a neutral term) in Dorrian's death. There was no proper basis for excluding evidence of them, either in whole or in part, on the ground that they were unfairly prejudicial. This is so even though Mr Hogan, on Galea's behalf, stressed the significance of the appellant's on-and-off relationship with Galea as establishing that it was unlikely that he had a motive either for killing Dorrian or assisting the appellant to dispose of the body if she killed him. Mr Hogan submitted to the jury that the appellant had not been candid with Galea about her relationship with Benjamin and that the terms of their conversation on 14 July 1997, when he discovered this, showed that he was not prepared to put up with it anymore and as someone who was not dominated by the appellant but able to stand up for himself. Since, however, this occurred after Dorrian's murder, it was a trivial point: the crucial matter was the nature of the relationship when Dorrian was killed. 52 In this Court it was submitted by the appellant that she was prejudiced by the circumstance that the jury had to consider the evidence of the appellant's relationships and her deceit of Galea in his case as well as hers. The jury was directed in unmistakeable terms of the need to separate the two cases. I am unable to see how any view that the jury came to concerning the reasonable possibility that the facts were as contended by Mr Hogan on Galea's behalf would or, indeed, could impact unfairly on the appellant, having regard to the material that was properly admitted in the case against her. I do not consider that this circumstance was unfairly prejudicial to the appellant or that the jury would have considered that the facts concerning her relationship with Galea were likely to have led them to colour inappropriately their consideration of whether the appellant was guilty of Dorrian's murder. 53 Galea's case at trial was, in substance, that Galea had nothing to do with concealing the body even if the appellant murdered Dorrian. At the centre of this defence was the attempt to persuade the jury that Benjamin was a much better candidate than Galea for the role of accessory. Looking at the matter overall, I do not see how this case unfairly prejudiced the appellant. The Crown case against her was that she killed Dorrian and that Galea, or Benjamin for that matter, did not. The evidence that went to this issue would not have differed if the issue were whether Benjamin and not Galea was the accessory. The reasonable possibility that Galea was not an accessory could not sensibly increase the likelihood that the appellant was the killer. Indeed, it might suggest the opposite. The reasonable possibility that Benjamin had helped to dispose of the body did no more than suggest another hypothesis about the identity of the accessory and could not logically have increased the likelihood that the appellant was the killer rather than Galea. Nor was it suggested otherwise at the trial. At all events, the evidence was admissible for other reasons in the case against the appellant. 54 Generally stated, the appellant submitted in this Court that she was prejudiced by the need to refute any theory put forward on behalf of Galea as well as the Crown case against her. This argument really depends upon the reversal of the onus of proof for such cogency as it has and thus may be immediately rejected. The crucial question was whether the appellant killed Dorrian, whoever helped to dispose of the body and however this was done. The case against her was in substance circumstantial, there being no direct evidence implicating her. The inferences that justified her conviction depended, of course, on the foundational facts. All the foundational facts in both cases – with the exception of the material in Galea's interview with police, and some taped conversations not involving the appellant which the jury was directed to ignore – were common, and properly common, to both cases. What inferences favoured the appellant's guilt and whether they went far enough were for the jury to evaluate. The possibilities that concerned whether Galea was a party, in one way or another, in Dorrian's murder arising out of the evidence concerning Benjamin were directly relevant to the case against the appellant and evidence about them was not unfairly prejudicial. The evidence of Galea's brother and sister 55 The Crown called Mr Edwin Galea and Mrs Lilian Camenzuli initially in its case against Galea but ultimately against both accused. They gave evidence, broadly speaking, of Galea's behaviour when the appellant left him in late 1996 when she was having her affair with Benjamin and when he left him for Dorrian. 56 As described by James J in his reasons for admitting the evidence, the Crown case against Galea was that, even if he was ordinarily a law abiding person, he committed the alleged crime because he was so infatuated with the appellant and so devastated when she left him to live with Dorrian that he was prepared to do a great deal in order to win her back. It is obvious that the evidence that Galea was besotted with the appellant was not, of itself, prejudicial against her. The evidence of the appellant's affairs with Benjamin and Dorrian did not show her in a favourable light but this was, in my view, because they were professionally improper. The jury was warned by James J not to draw any inferences against her because of these affairs. I consider that such a warning was sufficient to guard against any unfair use of the evidence. Galea had also said that the appellant had declined to marry him. 57 The evidence of the appellant's relationship with Galea and Benjamin and Dorrian also came from the appellant herself. She told police (in respect of Dorrian): "I told Ray that I had met the man I wanted to spend my life with…I had affairs before. Ray was understanding." She told police that Galea "just accepted it" when she told him that she was leaving him for Dorrian. Evidence along these lines was obviously relevant as tending to suggest that Galea was not so jealous as to be likely to kill Dorrian. Evidence that supported this conclusion from other sources was also obviously relevant. 58 The Crown adduced, in addition, evidence from both his brother and sister that Galea had told them that he attempted suicide, though perhaps in a half-hearted way, towards the end of 1996, when the appellant left him for a short time to live with her parents at the time of her affair with Benjamin. The Crown relied on this evidence as showing the extent of Galea's feelings for the appellant and, hence, that he might be likely to help her dispose of Dorrian's body. The Crown also argued that it showed that Galea was more likely to be suicidal rather than homicidal and therefore less likely to be Dorrian's killer. This argument is unconvincing, if not silly, in light of the Crown case that Galea had participated in a particularly gruesome and cold-blooded disposal of Dorrian's body. However this may be, it is clear that the whole of the relationship between the appellant and Galea was relevant to a consideration of the issue whether – in the context of the other circumstantial evidence – the Crown had established that they were jointly involved in Dorrian's death in the sense contended for. In my view, so far as any possible unfair prejudice against the appellant is concerned, this evidence is innocuous. 59 Ms Camenzuli's evidence was much to the same effect as her brother's with some additional material. That included her relating a conversation with the appellant in which the appellant told her (with a little elaboration) that she and Galea were separating because, "I just feel I need to move on." Mrs Camenzuli was aware of Galea's asserted earlier suicide attempt and asked the appellant, "Do you think that Ray might try to hurt himself?" She said that the appellant replied, "Yes, I am very much afraid of that. In fact he has written you a letter." As it happened, no letter appeared to have been written. In a conversation between Galea and Mrs Camenzuli the next day, she raised the matter with her brother, who admitted suicidal thoughts. He said that he would not use a gun because, "I will not disgrace my industry" (Galea was President of the Shooters Association). Mrs Camenzuli gave evidence of continuing support for Galea during the ensuing days. He told her that "it's hard for me to compete" with the appellant's new partner about whom the appellant, it appears, had painted a falsely flattering picture. Galea told his sister on 2 June that he had met Dorrian the previous evening at the Lilyfield flat and that Dorrian had told him the truth about himself and commented to her, "Look, Lil, he is a really nice fellow, I don't know why she [the appellant] would do that" meaning tell him lies about Dorrian. On Wednesday, 11 June, Galea told Mrs Camenzuli that he and the appellant had recommenced their relationship and proposed to get engaged, go for a holiday and marry early in the New Year. He told her that on the previous Friday he had helped the appellant move out of the flat she and Dorrian were sharing and back to the Marrickville house. He said that Dorrian was also at the flat, aloof and keeping to himself. He told her that he and the appellant had returned to the flat on the following day (Saturday) to collect the rest of the appellant's property. He said that it looked as though Dorrian had moved out because he was not here and all his things were gone. Mrs Camenzuli related subsequent conversations with Galea and also the appellant in which, in effect, they denied (one way or another) any knowledge of what had happened to Dorrian. So far as these conversations involved the appellant they were relevant and admissible in her case. James J directed the jury that the conversations with Galea in the absence of the appellant were not admissible in her trial. 60 It seems to me that there was nothing in the evidence of either of these witnesses that was unfairly prejudicial to the appellant. It was submitted that its effect, with particular reference to Galea's suicidal thoughts, was to portray the appellant as "a woman who not only drove her de facto to want to end his life but then committed the same wrong against him" and that the "inference that she was a cold and uncaring woman was almost irresistible." I think this is grossly overstated. The evidence showed, rather, that she too readily formed intensely emotional relationships, a conclusion readily supported by the love letters that had been tendered. At the most, it indicated that the appellant did not care for Galea enough to remain faithful to him. I am unable to see how such an attitude suggests, let alone demonstrates, that the appellant was cold and uncaring and, even if it did, it does not suggest that she was cold and uncaring towards Dorrian. I do not consider that there was any real risk that the jury thought otherwise. It also tended show that the appellant's relationship with Galea was most unlikely to give her a motive to murder Dorrian. 61 James J directed the jury that they should not permit their judgment "to be affected by evidence of such matters as that Ms Yeo has had sexual relationships with a number of men" and that it "is no part of your function to make moral judgments". No additional direction was sought by Mr Spencer so far as any potential prejudice of the kind identified in this Court might have been suffered by the appellant. This confirms my own view that the notion that there was such a potential is unreal. 62 So far as the evidence of both Mrs Camenzuli and Edwin Galea is concerned, the jury was repeatedly directed that their evidence of conversations with Galea was admissible only in Galea's case, whilst conversations with the appellant were admissible only in the appellant's case (with one immaterial exception, where a conversation Mrs Camenzuli had with the appellant was cross-examined on by Mr Hogan). The sole exception was evidence by Edwin Galea that he had made an arrangement with his brother to attend a religious retreat over the long weekend of 7-9 June 1997 and that on 6 June Galea terminated the arrangement. This, of course, was not admitted for any hearsay purpose. It was admissible against both accused, so far as it went. James J directed the jury accordingly. If this surprised Mr Spencer, he did not complain of it. In my view, the admissibility of this evidence is obvious. It is unarguable that Mr Spencer was able to cross-examine both these witnesses in respect of those parts of their evidence admitted against his client. Cross-examination as to other parts may have made those parts admissible against him, of course and, no doubt, he wished to avoid this occurring. As it happened, he did not ask any questions of either Mr Camenzuli or Edwin Galea. 63 As I understand it, it is now submitted that there was a change in the rulings as to the admissibility of the evidence of Edwin Galea and Mrs Camenzuli. With two possible exceptions (the evidence of Galea's cancellation of the weekend and relating to Galea's suicidal thoughts), I cannot discern any change in the admissibility of this material, still less any prejudice that may have been occasioned to the appellant. 64 So far as the cancellation is concerned, I have already said that this was admissible as direct evidence of Galea's arrangements and does not raise any hearsay considerations. 65 The Crown submitted that the evidence of Mrs Camenzuli and Edwin Galea as to Galea's state of mind at about the time of Dorrian's murder – when the appellant moved out of the Marrickville house and went to live with Dorrian in the Lilyfield unit – was relevant in the appellant's case and pointed to Mr Spencer's case that it was reasonably possible that Galea, rather than the appellant, had killed Dorrian. He submitted that this evidence supported the Crown's contention that it was more likely that the appellant rather than Galea was the killer and that Galea assisted her to dispose of the evidence. He submitted that the evidence about Galea's suicidal feelings was admissible by virtue of s72 of the Evidence Act 1995, which is in the following terms – 72 Exception: contemporaneous statements about a person's health etc The hearsay rule does not apply to evidence of a representation made by a person that was a contemporaneous representation about the person's health, feelings, sensations, intention, knowledge or state of mind. 66 It was not contended by Mr Spencer at trial, or by counsel for the appellant, Mr Byrne SC, in this Court that the evidence concerning Galea's suicidal intentions or expressions as to his emotional state was not admissible by virtue of s72. Mr Spencer submitted that the evidence that Galea may have been suicidal was irrelevant and disclosed that his case was that jealousy – anger, not self-destruction – may have led Galea to kill Dorrian. He submitted that Mr Hogan, not he, cross-examined Mrs Camenzuli about this and it should not be evidence against his client, especially at the close of the Crown case. 67 In light of Mr Spencer's candid disclosure of his case that it was reasonably possible that Galea may have killed Dorrian in a jealous rage, evidence that Galea's response to the appellant's affairs – including especially that with Dorrian – was despondency rather than anger was relevant. Mr Spencer's own submission implicitly concedes as much. Moreover, he must have known that this was part of his case when Edwin Galea and Mrs Camenzuli gave evidence and when he declined to cross-examine them. Mr Spencer did not submit that he would have cross-examined them had the evidence been admitted against the appellant from the beginning, nor did he seek the return of the witnesses for the purpose of cross-examining them or suggest that he could not do so because this might unfairly prejudice his client. There is no rule of law or practice that forbids having your cake and eating it too but such a tactic will rarely give rise to a successful appeal. It does not do so in this case. Recorded conversations 68 Three tapes, in the result, required consideration following objections to their being admitted. These tapes (numbered 8, 21, 22) were tendered by the prosecutor in order to disclose the nature of the relationship between the appellant and Galea on 3 July, which was shortly after Dorrian's remains had been found. The Crown's case, as articulated by the prosecutor during argument, was that the appellant was able to call upon Galea to help dispose of Dorrian's body and clean up the unit where it alleged he had been killed. The Crown proposed to adduce evidence from Mrs Camenzula that, at a time shortly after Dorrian was killed – and when, on the Crown case, Galea had helped get rid of the evidence – Galea had told her that the appellant had agreed to return to him "on my terms". (As appears above, this evidence was adduced in due course and admitted against both accused.) The prosecutor submitted that Galea's position vis-à-vis the appellant had changed: he was in a position to impose terms because he had helped dispose of Dorrian's body. Accordingly, evidence of their interaction after the crime was material in assessing the cogency of this line of reasoning. 69 Mr Spencer, for the appellant, objected to the tapes on the ground that the conversations contained sexually explicit material which had minimal probative value and was potentially unfairly prejudicial. He submitted that this was merely a temporary argument between two sexual partners and did not throw any real light upon the underlying relationship. The Crown submitted that the sexual references were so integrated into the conversation that they could not be excluded without inappropriate distortion; further, the references were part and parcel of the evidence of relationship itself. The Crown also relied on other discussion about the police investigation but, as I have implied, it was not submitted that this was irrelevant or unfairly prejudicial. 70 James J ruled that, with one exception – not presently material – the whole of the conversation would be admitted as tending to show who was the dominant party in the relationship. His Honour considered that the conversation did not show the appellant to be "sexually promiscuous or a tart" (to use Mr Spencer's language). Rather, it showed, if anything, some fidelity to Galea as her regular partner. The jury was already aware that they had a sexual relationship. Accordingly, there was no unfair prejudice that might be suffered by either accused. His Honour excluded part of the recording to which objection had been taken on other grounds not calling for present consideration. 71 Tapes numbered 21 and 22 were both short. They were tendered to prove that the accused believed that a listening device had been place in her house. This, it was contended by the prosecutor, was relevant to evaluate the sense of later conversations which were to be admitted. Mr Spencer conceded that this was a proper basis for admission but took objection to some additional material which, he submitted, showed no more than frivolous behaviour capable of being unfairly prejudicial. James J largely acceded to this submission. As I understand it, no point is now taken on these tapes. The dust buster 72 The Crown submitted that the appellant's conduct after the murder in a number of respects showed a consciousness of her guilt. In this appeal complaint is particularly made of the admission of evidence of the appellant's conduct when at her home with police on the evening of 2 July 1997. On that day, Galea was interviewed at the Sydney Police Centre. When the interview had ended, Galea, his solicitor and two police officers met the appellant, who had been waiting for him in the foyer. The officers said that Galea told the appellant, "Kath, the guys want to come home and take the dust buster" (a small vacuum cleaner). When the five arrived, one of the officers (Det Shiels) spoke on his mobile telephone outside the house and the others went inside. When Det Shiels entered, he walked up the hallway, heard the sound of two surfaces coming together and went into the lounge room. He said that the appellant was standing in the room looking down at the cleaner, which was in two parts, and the appellant attempting to put them together. He heard a clicking sound and, at that point, the appellant looked up at him. The other officer came into the room and asked the appellant if that was the cleaner, to which the appellant replied that it was. He asked the appellant, "Did you unclip it just then?" She said, "Sorry?" The officer repeated the question. The appellant said, "I just, yeah, just connections that was all there, because I remember, mmm". The officer asked, "Is there a cartridge in it at all or…?" The appellant opened the cleaner to reveal the cartridge and said, "Its just that". She handed the cleaner over and said, "That is the whole kit and caboodle thing". The officers saw nothing on the floor that might have been emptied from the cleaner. On the same evening, the appellant was recorded as saying to Galea, "You know how I took the vacuum apart and I took the cartridge out and turned it upside down to make sure the bits are in, all the bits are in it." 73 Objection was taken to this evidence on the ground that, despite its relevance, it was unfairly prejudicial within the meaning of s137 of the Evidence Act 1995. In a brief judgment, James J rejected the evidence upon this basis. Following that ruling further evidence was adduced (mostly on the voir dire), including, in particular, evidence of the interviews given by the two accused with police. About ten days after the initial ruling, James J asked the Crown prosecutor if he wished to seek a reconsideration of it, remarking that he felt that he might not have sufficiently appreciated the significance of the evidence. Unsurprisingly, the prosecutor sought a review of the ruling, as he was fully entitled to do. A further voir dire hearing was conducted, at the conclusion of which his Honour ruled that the evidence was admissible. 74 James J directed the jury in respect of this evidence as follows – "You could regard the evidence about Ms Yeo's conduct with regard to the dust buster as evidence of consciousness of guilt on her part and hence as a circumstance which you could take into account in combination with the other circumstances established by the Crown, only if the following conditions are satisfied: You would have to be satisfied that Ms Yeo did do and say what the Crown alleges that she did and said, in the circumstances in which the Crown alleges that she acted. You would have to be satisfied that Ms Yeo realized…that the police wanted to take possession of the dust buster, in order to examine it in the investigation into the death of Christopher Dorrian. You would have to be satisfied that [in acting as described] Ms Yeo acted as she did out of a consciousness of her own guilt of the crime of murdering Mr Dorrian and out of a fear that, if the truth emerged, the truth would implicate her…[in his murder]. You must be satisfied that the conduct reveals a knowledge on the part of Ms Yeo of having committed the murder… It is necessary that the Crown satisfy you that Ms Yeo acted as she did out of a consciousness of her own guilt of murdering Mr Dorrian, not out of a consciousness of having committed any other crime, such as merely assisting in disposing of Dorrian's body, or out of a consciousness that some other person such as Mr Galea had committed the crime." His Honour briefly outlined the arguments on both sides about the significance of the evidence, concluding as follows – "Ladies and gentlemen, I have spent a lot of time on the dust buster. If the Crown relies on evidence being evidence of consciousness of guilt, it is incumbent on the trial judge to give careful directions. You should not conclude that the dust buster is a large part of the Crown case." 75 It is submitted that the evidence was not capable of demonstrating a consciousness of guilt on the part of the appellant on the basis that it was "apparently used by Galea, not the appellant, in the alleged clean-up." I am uncertain as to the meaning of this submission, since there was, of course, no direct – or even inferential – evidence that identified any particular item as used by anyone involved in the clean up. It is argued that she did no more than check the cleaner in order to comply with the police request for it. No redirections to the jury were sought on the appellant's behalf. 76 That Ms Yeo's conduct – if the evidence of the officers were accepted – was suspicious is obvious. At the least, the jury were entitled so to consider it. However, whether it demonstrated consciousness of guilt was very much an open question with much to be said on both sides. This had to be considered in the context of the evidence as a whole. I am unpersuaded that a conclusion that it was indeed incriminating conduct could only be speculative. James J's consideration of the possible competing arguments is comprehensively and (with respect) fairly set out in his Honour's reasons of 26 February 2002, which I do not intend to repeat here. To my mind, his Honour's analysis convincingly demonstrates that, as he observed, "the jury, if it saw fit, could rationally exclude any of…[the innocent] explanations…" 77 The primary difficulty with the evidence, as it seems to me, is that, accepting (for the sake of argument) that the appellant's conduct did amount to consciousness of guilt, it seems to apply equally to the possibility that she was the murderer as to the possibility that she merely assisted disposal of the body. However, the Crown case would be significantly strengthened by evidence that implicated the appellant in the death of Dorrian, whether as his killer or as assisting the killer. That would leave, of course, the question whether the Crown had established beyond reasonable doubt that the former rather than the latter was the case. The Crown case is best seen, in respect of this evidence, as an admission by conduct that the appellant was criminally involved in the offences relating to Dorrian's murder. The mere fact, as it seems to me (with unfeigned respect for the trial judge), that it was necessary to rely on other evidence to establish the character of that involvement could not require that the evidence should be disregarded. Accordingly, the directions to this effect unduly favoured the appellant. Nor do I see how the evidence was unfairly prejudicial. If indeed, as the appellant contends, it had little significance, the jury was quite able to assess that significance for itself and disregard it. This is very different from the case where the jury might well come to a view that some evidence had little significance in determining the issues in the case but where that evidence disclosed some wrong behaviour which the jury might be tempted to weigh in the scales against an accused. It is also very different from the situation where the impugned evidence might be taken by the jury to prove more than it reasonably should – such as identification of slight probative worth, or evidence that might appeal to prejudices that a juror might hold. The "three Kathys document" 78 The description of this exhibit, authored by the appellant, is derived from its references to three different aspects of her personality: the part that is called a child; the part that is 26, young and ambitious; and the part that is old, whose "life is over". The document deals briefly with each of these elements, acknowledging that some are irrational. It reflects someone trying to understand somewhat confused and, in some respects, contradictory emotions. In a context where the appellant had been implicitly criticised at work because of her relationship with Dorrian and had just broken up with him, three statements, described by her as "irrational core beliefs" needing to be challenged, are particularly significant in the context of the question of motive (and obviously must be evaluated in light of the document as a whole): "I must be loved by everyone I meet/know"; "I must be perfect in everything I do"; and "others are out to deceive me or harm me (mentally, emotionally)". 79 Mr Byrne SC contends that the document is unfairly prejudicial in the sense that it is so ambiguous that attributing any particular meaning to it is bound to be speculative and that some possible meanings could be prejudicial. He contends that, at its strongest, its shows no more than that the appellant was in a confused emotional state at a time leading up to Dorrian's death and, thus, when they had argued and he had told her that the relationship was over. Mr Byrne submits that the jury could not make any "psychological assessment…of the appellant and the danger of using the evidence in this manner…[outweighs] whatever questionable probative value the document may have had". 80 As I have already mentioned, the Crown case was that a possible motive for the appellant to kill Dorrian was his rejection by him of their relationship. In a sense, of course, this is a matter of psychology and the document reflects what might be called a psychological approach. But emotional responses to the crises of life, including of course the ending of relationships, are part of ordinary human experience. Evidence that the appellant had been unconcerned about the breach may have weakened the Crown case somewhat. It is self-evident that the exhibit discloses the appellant's feelings about herself and her situation on 6 June 1997. Dorrian was murdered, on the Crown case, between 5 June and 8 June. The fact that the appellant was upset at the time, the extent to which she was upset, and the possible reasons for it as exposed in a reasoned discussion by the appellant herself, were relevant matters well within the jury's ability to evaluate and there is no reason to suppose that this evaluation would be likely to be unfair. 81 Admitting the exhibit, James J said -- "It can be reasonably anticipated that it may be difficult to persuade the jury that an intelligent young woman, if she was thinking calmly and rationally, could have committed the crimes of murdering Mr Dorrian and participating in the cutting up of his body. The Crown case is that between 5 and 8 June the accused was in a state of emotional turmoil, as a result of having been rejected by the deceased with whom she was infatuated and as a result of her being investigated by the nursing authorities about her relationship with Mr Dorrian, who was an ex-patient. It seems to me that the evidence is relevant as evidence of the accused's state of mind and her state of feelings at a critical time and the evidence is capable of having substantial evidentiary force. I do not consider that I should refuse to admit the evidence under either s135 or s137." If I may respectfully say so, I consider that his Honour was plainly right. Accordingly, I would reject the submission that the exhibit was wrongly admitted. Galea's character evidence 82 The appellant complains that her trial was unfairly prejudiced by the fact that Galea called evidence of his good character whilst she did not. 83 I interpolate that, despite the submission made in this Court by counsel for the appellant to the opposite effect, the Crown prosecutor made it quite clear at all times that he relied on the evidence as to Galea's character in support of the argument, in the case against the appellant, that he was unlikely to have been Dorrian's killer. Despite Mr Byrne SC's submission to the contrary, it is obvious that this was the Crown's position throughout. He said, and did not depart from this position either, that the evidence was not admitted for the purpose of showing any bad character or tendency of the appellant. It seems to me to be self-evident that evidence of Mr Galea's good character and, in particular, of his attitude towards the use of guns could not, as a matter of ordinary reason and good sense, reflect adversely on the appellant's character and I do not think that any jury would be likely to reason otherwise. 84 The appellant also complains about the use of evidence adduced by the prosecutor in his cross-examination of Mr Tingle of an opinion which was the subject of a conversation between him and Galea contained in a transcript of their conversation which was not tendered against the appellant. This matter was raised during Mr Spencer's cross-examination of a Mr Packer, one of Galea's character witnesses – "HIS HONOUR: Something that you are going to have to face (the evidence given by this witness and, of course, Mr Tingle) is the evidence given by the witnesses who have been called in Mr Hogan's defence case for Mr Galea. The evidence of good character is relevant and admissible in Mr Galea's case…I think we have to face this so that we are quite clear about it when we come to the trial of Ms Yeo: the fact that the evidence has been given by a witness called in the defence case does not of itself prevent the evidence being generally available in both trials. Does anyone disagree with that? HOGAN: No, your Honour. SPENCER: I have already once before indicated the difficulty. HIS HONOUR: …You say that's a reason why it should have been separate trials. MR SPENCER: It does impact on Ms Yeo's case… HIS HONOUR: I take it the Crown might say it relies upon evidence given by these witnesses, and particularly Mr Tingle, in the trial of Ms Yeo. If that's not right, tell me, Mr Crown. CROWN PROSECUTOR: Yes it is but, your Honour, not in any way directed to her character… … HIS HONOUR: Tell me if this is not right: the Crown would seek to rely on some of the evidence given by these witnesses [in the case of Mr Galea] in the case of Ms Yeo, not for the purpose of showing any bad character or tendency of Ms Yeo, but for the purpose of asking the jury to conclude that its unlikely that Mr Galea did the murder? SPENCER: He's not the killer. CROWN PROSECUTOR: He's not the killer. HIS HONOUR: He's not the killer, yes." 85 It seems to me that this exchange is quite unambiguous and would have left Mr Spencer in no doubt about how the Crown intended to use the character evidence in the appellant's case at a time when it would have been quite simple for him to have cross-examined the witnesses to establish that, in fact, Galea was not of good character. However, Mr Spencer submitted only – "SPENCER: The difficulty is this: The telephone intercept transcript between Mr Galea and Mr Tingle went in only in the case of Mr Galea. But now, because the Crown chooses to cross-examine some of that in, it becomes evidence in the case against my client…" The prosecutor informed James J that he did not propose to use against the appellant either the transcript or so much of the cross-examination which dealt with it but he submitted that the opinion of Mr Tingle about Galea's attitude to guns was admissible against her. It is evident that MR Spencer appreciated the distinction and submitted, "It may be one of those cases that your Honour can give that direction as to its limited use". The prosecutor agreed. I do not see how the appellant should be able to complain about this matter here. Not only did her counsel at the trial concede the point but he was plainly right to do so. 86 At the close of the evidence, counsel made submissions concerning the use to which certain parts of the evidence could be put for the purposes of addresses and, ultimately, James J's summing up. In connection with character evidence, the following exchange occurred – "HIS HONOUR: The evidence of good character. I am dubious about whether it is evidence in both [cases] – I am doubtful…I am trying to draw a distinction between – "he is a man of integrity" and, on the other hand, evidence of "he is in the gun – he knows about guns and so forth. I am just wondering whether evidence of – pure evidence of character… SPENCER: I would submit it is not admissible but I am not too concerned one way or the other because I will be saying to the jury – well, what would you expect a friend to say? But I would prefer it wasn't in my case. I didn't cross-examine Mr Tingle at all. I did cross-examine Mr Packer slightly. HIS HONOUR: I think I can defer making any final ruling on this. Does anyone want to make a submission against…It seems to me that evidence by witnesses called about Mr Galea's knowledge of guns, attitude to guns, attitude towards the industry – for want of a better word – his acquisition of skills. All of that is admissible in both trials? SPENCER: I see that is relevant to everyone's case. HIS HONOUR: The evidence of pure character I will have to think about. I don't know that it really matters all that much because their evidence was they are familiar with the charge and it would be out of character for him to have committed the offence charged against him. Presumably from that it would be equally out of character for him to commit the principal offence. SPENCER: There is one matter that arises from character. You will be asked by Mr Hogan to give a full character direction. That is important because…Mrs Yeo did not raise character. HIS HONOUR: I am happy to give the usual direction that character is not in issue for her and so forth." [The discussion moved to Galea's position.] When the Crown prosecutor had completed the first part of his address to the jury and just before the afternoon adjournment, counsel raised several matters that had not been finally resolved. One of these concerned the evidence as to Mr Galea's character. "HIS HONOUR: I thought we had reached this position, that evidence about Mr Galea and firearms – his knowledge of firearms, his familiarity, his attitude towards the use of firearms – all of that material is admissible in both trials. The matter which I don't think we did completely resolve was evidence of attributes of good character attributed to Mr Galea, that he was a person of integrity, that he was non-aggressive and so forth: whether those facts are admissible in both trials. CROWN PROSECUTOR: My submission is this evidence led in the trial of one is admissible for all purposes… HIS HONOUR: …in general. Could I just offer these ideas? It seems to me the Crown does not have the problem of overcoming s101 [of the Evidence Act 1995] because it is not adduced by the Crown against an accused. If you look at s97… SPENCER: But the submissions were used against the accused Yeo that it is less likely… HIS HONOUR: But the Crown seeks to lead evidence of the good character of Galea in the trial of Yeo as rendering it less likely that it was Mr Galea who did the shooting. SPENCER: That is what I disagree with." The discussion was resumed on the following morning. James J characterised the issue as follows – "…In Ms Yeo's trial the Crown has to exclude the reasonable possibility that Mr Galea was the killer and in Ms Yeo's interests to adduce evidence of Mr Galea's knowledge of firearms, access to firearms and evidence about Mr Galea's attitude towards the use of firearms. The only thing we are arguing about is the admissibility in Ms Yeo's trial of what might be described as pure evidence of character: evidence by witnesses [that] Mr Galea is law abiding and not aggressive." The Crown prosecutor repeated the substance of the submission he had earlier made. James J ruled – "I consider the evidence as to Mr Galea's character is admissible in the trial of Ms Yeo. It seems to me to be relevant. If it is caught by the tendency rule, I consider it to be within s97 [of the Evidence Act 1995]. It does not come within s101 because in Ms Yeo's trial it is not evidence adduced by the Crown about the defendant in Ms Yeo's trial, that is Ms Yeo. I do not consider that I should exclude the evidence under the provisions of the Evidence Act, so the evidence is admissible. CROWN PROSECUTOR: So I can use it for all purposes? HIS HONOUR: Yes." 87 It is not submitted here that this ruling was not correct, so far as the Evidence Act was concerned. Rather, it is submitted that there was a change in the Crown's position about the matter. Since there was no such change, this submission must be rejected. Moreover, Mr Spencer did not seek an immediate ruling; nor did he submit that he was prejudiced by any delay in his Honour's ruling. (Nothing turns on this, but I must say that my reading of the transcript set out above rather suggests that James J in fact did rule that all the character evidence was admissible in both cases. However, the transcript may not convey accurately what those who were present understood.) 88 In accordance with authority, James J eventually directed the jury that they were entitled to have regard to the evidence of Galea's good character in his favour on the questions whether he committed the offence for which he was on trial and whether his accounts to various persons about relevant events were truthful. In respect of the appellant, his Honour said – "The accused Mrs Yeo has not adduced any evidence for the purpose of showing that she is a person of good character. I direct you that you should not be prejudiced in any way or seek to draw any conclusion against her because she has not adduced any such evidence. Mrs Yeo is entitled to conduct her case as she chooses or as she is advised, and the position, so far as she is concerned, is that her character is simply not in issue." It is not submitted that this direction erred. I would reject this complaint. The Galea ERISP 89 It happens not infrequently in joint trials that the Crown will seek to rely on confessional material of one kind or another that is not admissible against the other accused. That happened in this case. Such a situation will often pose a risk that the jury might use parts of that evidence in their consideration of the cases in which it is not admissible. The mere existence of such a risk will not mean that a joint trial should be refused or that the trial will be unfair: it is a matter of fact and degree. It is submitted here, in effect, that parts of the interview between Galea and the police are so prejudicial against the appellant that the risk of misuse by the jury despite the directions to them that they must not do so rendered the trial unfair and a miscarriage of justice. 90 The appellant points, in particular, to Galea telling police, amongst other things, that the appellant was on stress leave and paranoid, had lied to him, was "mixed up", had "one hell of an anger", had given him a different account of her assault at Dorrian's hands, would not eat, needed space and was shocked after returning to Galea, could not sleep as she normally did, cleaned the kitchen obsessively, lied to the estate agent about why she was breaking the lease, had a "crashed" libido and had changed a lot since [Dorrian's death], the appellant's father had told him that she was "no good" and she was most proficient with using the .22 High Standard Citation; he concluded by stating that he hoped he had not implicated the appellant in anything. Mr Byrne SC submitted that these, and some other statements which it is not necessary to set out, were together so prejudicial to the appellant that the trials should have been separated in the first instance and, in the result, the failure to do so caused a miscarriage. 91 The lie to the estate agent and the use of the pistol were disclosed in the appellant's own interview. All the other matters about the appellant's emotional state are consistent, as it seems to me, with the ending of her relationship with Dorrian and, insofar as they were noticed after the discovery of his body, the fact that he was murdered as well, perhaps, as being wrongly suspected of his murder. The two matters of criticism (that the appellant had a fierce temper and her father's statement that she was "no good") are quite innocuous when seen in context. I do not accept that there was a substantial risk that the jury would have misused this material, because both of its actual character and the unqualified and repeated directions of the trial judge that they were to disregard it in considering the appellant's case. Address by Galea's counsel 92 It is also submitted here that a number of submissions by Galea's counsel in his address to the jury prejudiced the appellant's trial. I do not propose to set them out. Mr Spencer complained of them to James J. His Honour made directions. It was not submitted that they were inadequate. No application was made to discharge the jury. At all events, such a submission must have failed. The summing up 93 Mr Byrne SC concedes that many of the matters about which he complains in the summing up are consequential upon the rulings made in the course of the trial by James J (to which I have referred above) on the admissibility of evidence, adverse to the appellant. If those rulings were correct, as I respectfully think they were, there can be no criticism under this head of the summing up. Mr Byrne also points to the complaint made by Mr Spencer about the evidence of a Mr Norbett Alcala, which had been admitted against the appellant. That evidence was brief. Mr Alcala had been pistol shooting with Galea and the appellant. The Crown adduced evidence that both of them were excellent shots. Mr Hogan, in cross-examination, elicited the evidence that the weapon the appellant mainly used was a High Standard Citation. In re-examination the prosecutor clarified that it was a .22 calibre High Standard Citation pistol. The jury could reasonably have concluded that it was the murder weapon. Mr Spencer did not cross-examine, from which it is at least reasonable to infer the evidence was not disputed. It is unarguable that this evidence was admissible against the appellant. Mr Spencer's later submission that it was inadmissible against her because it was not adduced by the Crown was without merit. As James J observed, evidence elicited in this way is an inevitable consequence of a joint trial. It was not, and could not be, suggested that the evidence was unfairly prejudicial. 94 Mr Byrne SC also submits that "essentially" both the Crown prosecutor and counsel for Galea contended that she was the killer and that, the directions naturally reflecting these cases, this was unfair to the appellant. It is submitted that there "is a real question as to whether the directions in relation to the case as it related to Galea had the effect of leaving the jury with the impression that there was really only one option in relation to the identity of the murderer and two options in relation to the accessory. The two people implicated in the death of the deceased were either the appellant and Galea or the appellant and Benjamin". 95 Even if this was the effect of the summing up on Galea's case, I am unable to see how this was inappropriate. The possible candidates for involvement in Dorrian's murder were identified by the evidence that was admissible in both cases. It is, perhaps, not surprising that Mr Byrne does not actually articulate what he says is unfair. If the summing up reflected the evidence – and Mr Byrne does not contend otherwise – there can be no real unfairness. 96 It is submitted that, having regard to all these matters, including the fact that Galea called character evidence, the directions "failed to cure the prejudice caused by the conduct of joint trials". This submission should, I think, be understood in the sense that no directions could have corrected the situation created by the conduct of the joint trials. Conclusion 97 I have already stated that, in my respectful opinion, James J was correct in declining to order separate trials. The joint trial that ensued was, in my view, completely fair to the appellant even though, it may be, material was introduced that was, in one respect or another, adverse to her case and which would not have been before the jury unless a joint trial had been conducted. This is an almost inevitable consequence of a joint trial. That does not make the trial unfair. There is no assumption that, to be fair, a trial should normally be conducted in a way in which only the Crown and the particular accused are parties. The very point of a joint trial will often be to allow the jury to evaluate evidence that is adduced by all parties to an alleged criminal transaction. It is only where that evidence, or a part of it, is not admissible against one of the parties yet is of such a character that there is a substantial risk that the jury will wrongly use it against that party that the question arises whether the trials should be or should have been separated. I am satisfied that this did not eventuate in the appellant's case. Accordingly I would dismiss the appeal so far as it relies on the conduct of a joint trial with Galea. 98 I have already stated that, in my respectful opinion, James J did not err in permitting the evidence as to which issue is taken in this appeal to be adduced in evidence against the appellant. Insofar as the grounds of appeal comprehend these matters, they must be dismissed. Abuse of process The appellant submits that, having regard to the way in which the original trial was conducted, the instant trial was an abuse of process because the Crown approached the evidence in a way that was significantly different. In the first trial the Crown case was that the appellant and Galea were part of a joint criminal enterprise to murder Dorrian and dispose of his remains, whomever of them actually shot him but, in the alternative, one or other of them was guilty of being an accessory after the fact by assisting in the disposal of the body. 99 At the second trial, of course, the Crown was not able to conduct the case that Galea was guilty of the murder of Dorrian, whether by himself or as part of a joint enterprise with the appellant. This limitation applied both to the way in which it conducted the case against Galea and also the case against the appellant. In the first trial it was not necessary for the Crown to prove, in its case against the appellant, that she fired the fatal shot and it did not undertake to do so. This does not mean, of course, that it was the Crown case that she did not do so; nor was it the Crown case that it was not possible to determine whether or not she did so. In the second trial, the Crown undertook the burden, in effect, of proving that the appellant had shot Dorrian, of which the obverse case was, necessarily, that Galea had not done so. It was not the Crown case in the first trial that Galea had not shot Dorrian; it was that, whether he had done so or not, he was acting in concert with the appellant. It seems to me obvious that, although the Crown cast its case against the appellant differently in the second trial to the way it had put in the first, the two cases were not inconsistent in any way that rendered the second trial an abuse of process. Put in another way, the appellant's conviction at the second trial was consistent with her conviction in the first and there is no basis for surmising that the jury considered in the first trial that she had not actually fired the gun and was guilty because she acted with Galea. The verdicts in the first trial make it virtually certain, in my view, that the jury doubted that Galea had fired the gun – not only in the case against him but, realistically, in the case against the appellant. Far from the Crown attempting to conduct a case that was inconsistent with or undermined the verdicts in the first trial – which verdicts were, at all events, quashed on appeal – the Crown undertook a case which was entirely consistent with those verdicts. This cannot constitute an abuse of process. Inappropriate submission by Crown prosecutor 100 Towards the end of his address to the jury, the Crown prosecutor said – "My address has been very lengthy. I hope you understand the good reasons for it being so. The interruptions, and also the task of a prosecutor in a circumstantial case where there is a considerable body of evidence, all of which is understood by the jury but it is the prosecutor's role to pull it all together and I hope that you feel that I have done that. If it is to be said that I have been too long, I have been too long. I know my responsibility and my duty and I have prosecuted to the best of my ability and if there is to be any comment or criticism I just ask you to consider this: if Christopher Dorrian was your brother, your husband, your son, relative friend or loved one, wouldn't you have liked the Crown Prosecutor to have done what I have done, and that is my best to pull it all together to explain it and to assist the jury to arrive at the correct verdict." It needs hardly to be said that it was completely inappropriate to invite the jurors to consider what they might think of the trial or the prosecutor's submissions if they had been related to the deceased in the ways suggested. Since the prosecutor – as he was entitled to do – invited the jury to convict the accused ("the correct verdict"), to imply that this was the result that his friends and relatives might want was even more inappropriate. Such appeals should play no part at all in the jury's consideration of any of the issues in a trial. Furthermore, such submissions undermine the entirely independent role of the prosecutor: he or she appears for the State as a minister of justice and not in any sense for any of those who might, by kinship or affection, be attached to the victim. 101 It is not submitted that these remarks, inappropriate as they were, resulted in any miscarriage and it is not necessary to discuss them further. Conclusion as to conviction appeal 102 I propose that the appeal against conviction be dismissed. Leave to appeal against sentence 103 The appellant was sentenced to a term of imprisonment for a period of 24 years with a non-parole period of 18 years, commencing 7 June 2000. This commencement date reflected the need to take account of two periods of pre-trial custody, the first being between 23 July 1997 and 26 September 1997 and the second between 17 December 1999 and 14 August 2001 (the date of bail following the successful appeal). This sentence, in terms of its overall length and non-parole period, was the same as that which had been imposed by Grove J following the applicant's initial conviction. She seeks leave to appeal from this sentence. 104 The grounds are – "(i) The learned sentencing judge failed to have regard or…sufficient regard to the emotional circumstances in which the offence was committed, the death of the deceased occurring shortly after he had abused and physically struck the appellant." (ii) The learned sentencing judge erred in concluding that the motive for the killing of the deceased was the applicant's distress at the fact that she had been rejected by him. (iii) The learned sentencing judge failed to have regard or…sufficient regard to the fact that at the time of sentence the events for which the applicant was to have been sentenced had occurred more than five years ago and there had been no suggestion of any misconduct by her in the meantime. (iv) The learned sentencing judge failed to give weight…or sufficient weight to the long period during which the appellant had been kept in a state of uncertainty and then taken into custody on three separate and distinct occasions. (v) The learned sentencing judge failed to have regard…or sufficient regard to the conditions of bail to which the appellant was subject during the periods she was not held in custody pending the determination of the charge against her." As to grounds (i) and (ii) 105 It is obvious from what I have already said that the evidence did not disclose the actual circumstances or the precise date of Dorrian's death. Nothing of use in that regard was added in the sentence proceedings. However, James J was able to make some relevant findings of fact. Amongst these, his Honour found that the murder was premeditated to some extent as the applicant had first obtained the pistol from Galea's safe and that the motive was that "her relationship with Mr Dorrian had broken down and she had been rejected by Mr Dorrian with whom she was infatuated", with the "secondary motive…that her association with Mr Dorrian had become the subject of an investigation by the nursing authorities, which threatened her career as a nurse". His Honour also accepted that on 4 June 1997 there had been an argument between the deceased and the applicant, in course of which he had verbally abused and physically struck her and that she had killed him at some time between the afternoon of 5 June and the morning of 8 June. 106 Although it is contended that James J's finding as to the appellant's motives was wrong, no submissions were directed to this ground. In my view there was ample evidence supporting his Honour's conclusion. 107 I am also unable to accept the contention that James J ignored the violence inflicted on the appellant as relevant to the circumstances of the offence or the culpability of the applicant. The appellant told police that, during an argument in the course of which she started to cry, Dorrian held his hand over her mouth and pushed her over (as I read her account, to stop her from talking). She said that "his hand happened to be covering her nose so I couldn't breathe", that she panicked and hit him across the chest and he then slapped her hard across the face". It was red and stinging but not injured. No violence is trivial but this could not be regarded, in my view, as in any way mitigating the gravity of the murder that she committed some days later. However, his Honour having taken the trouble to mention it, I do not doubt that he took it into account in the applicant's favour on sentence. It was not a matter that could weigh greatly in all the circumstances and it did not provide the motive for the murder. It would have been inappropriate to have attempted to assign any particular mitigating effect to it amongst the congeries of relevant facts. As to grounds (iii) and (iv) 108 The fact that the murder was committed in mid-1997 was, not surprisingly, frequently mentioned by James J in his reasons for sentence. His Honour could scarcely have overlooked it. But the circumstances were not such as to give rise to any mitigation. She was at liberty over this period, subject to the conditions of her bail. There was, of course, anxiety over the outcome but, given that her guilt must be accepted, it should rather be regarded as the hope that she might escape punishment by an unmerited acquittal. It was not suggested that the applicant had misbehaved during that time. A finding about this was not necessary. It was not suggested that the appellant posed any particular danger to the community. Given the circumstances of the crime and the subjective features of the offender, no such submission could have been made. It was not necessary for his Honour to deal with this matter explicitly. James J referred to the favourable subjective circumstances of the appellant in general terms that indicate, to my mind, that he regarded them as assisting the applicant to some degree. Again, there was no need – and it would have been undesirable – to assign to them any particular measure of significance. As to ground (v) 109 In some circumstances, a lengthy period on bail awaiting trial should be regarded as representing a "penal consequence" already suffered by an offender and the sentence adjusted accordingly: R v Keyte (unreported, NSWCCA 26 March 1986). Even where such conditions are onerous, however, it may not operate to reduce the sentence that is otherwise appropriate: R v Herbert (unreported, NSWCCA 4 November 1993); R v Fowler [2003] NSWCCA 321. The circumstances and nature of the applicant's crime were so grave, in my mind, as not to require that a lesser sentence be imposed by virtue of the period she spent on bail, even on the onerous conditions to which it was subject. 110 Mr Byrne submits, in general, that because James J found, as Grove J did not, that the applicant had been assaulted be the offender some little time before she killed him and she had, by the time she came to be sentenced again, spent an additional period on onerous bail conditions, the sentence imposed by Grove J – if it was the correct measure when it was imposed – should have been reduced somewhat by virtue of these two considerations. James J said – "In the present case I do not consider that the sentence imposed by Grove J was manifestly inadequate, or that the facts before me are significantly different or that there is any countervailing considerations such that I should impose a heavier sentence than was imposed by Grove J. On the other hand, I consider that the seriousness of the offence was such as to require the imposition of a sentence of the order imposed by Grove J." I have concluded, with respect, that his Honour did not err in coming to this conclusion. Conclusion as to leave to appeal against sentence 111 In my view, the sentence imposed by James J appropriately reflected all the objective and subjective circumstances of the case. I do not think his Honour erred either in the result or in the process by which he arrived at it. Proposed orders 112 I propose the following orders – (i) that the appeal against conviction be dismissed; (ii) that leave to appeal against sentence be granted; and (iii) that the appeal against sentence be dismissed. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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