New South Wales Court of Criminal Appeal CITATION: Butcher v R [2010] NSWCCA 281 HEARING DATE(S): 26 October 2010 JUDGMENT DATE: 3 December 2010 JUDGMENT OF: Allsop P at 1; Adams J at 108; Howie AJ at 109 DECISION: Appeal dismissed. LEGISLATION CITED: Crimes Act 1900 (NSW) s 26 CATEGORY: Principal judgment PARTIES: Paul Butcher (Appellant) Regina (Respondent) FILE NUMBER(S): CCA 2007/11154003 COUNSEL: In Person (Appellant) Ms V Lydiard (Crown) SOLICITORS: In Person (Appellant) Director for Public Prosecutions (Crown) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 07/610037 LOWER COURT JUDICIAL OFFICER: O'Connor DCJ LOWER COURT DATE OF DECISION: 4 July 2008 IN THE COURT OF CRIMINAL APPEAL 2007/11154003 ALLSOP P ADAMS J HOWIE AJ Friday 3 December 2010 BUTCHER v R Judgment 1 ALLSOP P: On 19 November 2007, after a trial that had commenced on 5 November before O'Connor DCJ in the District Court at Sydney, the appellant, Mr Paul Butcher, was found guilty by a jury that on September 2006 at Lithgow in the State of New South Wales he did solicit Mark Black to murder Evoon Butcher. 2 The offence was contrary to the Crimes Act 1900 (NSW), s 26 and carries a maximum penalty of 25 years imprisonment. There is a standard non-parole period of 10 years. 3 On 4 July 2008, the appellant was sentenced to a term of imprisonment of a non-parole period of five years six months commencing on 18 September 2006 and expiring on 17 March 2012 with a balance of term of three years and six months to expire on 17 September 2015. 4 The appellant originally filed a notice of appeal on 9 November 2009 indicating that he was appealing against conviction and sentence. No submissions were filed on the question of sentence and only the conviction appeal was pressed. 5 The appellant appeared for himself and filed detailed submissions and made oral submissions to the Court. Before turning to those submissions, I will outline the relevant facts that are supported by evidence at the trial. 6 In July 2006, the appellant, who was married, commenced an affair with the co-offender, a Ms Debra Stevenson. Sometime after the affair commenced, the appellant told Ms Stevenson that he would lose his children and most of his money and houses if he and his wife separated. The appellant had a number of properties in Lithgow. The appellant told Ms Stevenson on a number of occasions that he should kill his wife. 7 On the afternoon of 6 September 2006, Ms Stevenson went to the Lithgow Hotel with Mr Mark Black and in the course of the evening told him she had a friend who needed a favour done. Ms Stevenson then asked Mr Black if he would kill Mrs Butcher. 8 At around 10 pm that evening, Mr Black and Ms Stevenson left the hotel and met with the appellant outside the home he shared with his wife and children. 9 The appellant provided Ms Stevenson and Mr Black with keys to the house and his wife's car, together with handcuffs, rubber washing up gloves, tea towels and later a knife. 10 The appellant told Mr Black to either drown Mrs Butcher (who could not swim) in a nearby lake or kill her and he would bury her under some concrete landscaping he proposed to do in his backyard. 11 The appellant told Mr Black he would pay him $5,000. 12 Mr Black told the appellant that he could not kill Mrs Butcher but said that he might know someone who could do the job. 13 The next day, Mr Black went to the police who arranged for an undercover police operative to meet with Ms Stevenson. 14 On 8 September 2006, Mr Black introduced Ms Stevenson to the undercover police officer and Ms Stevenson asked him to kill the appellant's wife. 15 On 14 September 2006, Mr Black met the appellant at Bullaburra railway station where the appellant was working and the appellant told him that he had changed his mind and decided to divorce his wife instead. 16 On 18 September 2006, the appellant was arrested. A search of the house where he was living with Ms Stevenson located a pair of handcuffs and rubber gloves. A large hole was also observed in the backyard of the home the appellant shared with his wife and children. Evidence at the trial Mark Black 17 The evidence of Mr Black contained the following relevant material. On 6 September 2006, Mr Black visited Ms Stevenson at her home in Blackheath to return an umbrella. He was told by Ms Stevenson's husband that she was not at home, that they had argued and that she had packed her belongings and gone to the train station. Mr Black then went to Blackheath train station, where he met Ms Stevenson and travelled with her to Lithgow. Mr Black did not know Ms Stevenson well, having met her through his partner. Mr Black had originally planned to travel by train to Leura to play poker, but changed his mind and accompanied Ms Stevenson to Lithgow because she was distraught. On arriving at Lithgow, Mr Black and Ms Stevenson proceeded to the Lithgow Hotel where they both drank. Ms Stevenson left the hotel on four occasions that evening for anything up to 10 to 20 minutes, on one occasion returning in a different set of clothes. At approximately 10 pm, Ms Stevenson told Mr Black that she had a friend who needed a favour done and asked Mr Black to accompany her to the friend's house. Ms Stevenson told Mr Black that the friend was having trouble with his marriage and wanted his wife killed. Mr Black said he thought that Ms Stevenson was joking at first. Ms Stevenson told Mr Black that she was pregnant to the person who needed the favour. 18 They left the hotel. Mr Black asked Ms Stevenson what was in it for him and he was told $5,000. Ms Stevenson told him that the friend's wife suspected him of cheating and "they were going to get a divorce and she was going to take her share of the fortune in the family and take the kids … back to Egypt." 19 Ms Stevenson and Mr Black, having left the hotel, walked in heavy rain to a vacant house across the road from the appellant's house and took shelter under the carport. Ms Stevenson indicated the house across the road and told him "that's where we have to go". Having arrived at the vacant house at approximately 10.30 pm, Ms Stevenson told Mr Black that she had to get some things that had been left for them and went to the rear of the house and returned with a bag containing two pairs of dishwashing gloves, a pair of handcuffs, a set of house keys, a set of car keys and two tea towels. Ms Stevenson told Mr Black to "take these" and handed him the gloves, the handcuffs and the two tea towels. Ms Stevenson kept the house keys, the car keys and a pair of gloves. 20 Mr Black gave evidence that he repeatedly told Ms Stevenson "I can't do this" and that Ms Stevenson tried to convince him that he could, reminding him that he would be paid. Ms Stevenson told Mr Black that the appellant's wife had to be killed before she left the country with the children. 21 At Ms Stevenson's request, Mr Black followed her as she walked down the driveway of the appellant's house. Ms Stevenson left Mr Black in the driveway and disappeared around the back of the appellant's house. After some time, Mr Black returned to the carport of the vacant house and remained there until Ms Stevenson returned with a man whom Ms Stevenson introduced as "Paul". (This was the appellant.) Mr Black tried to explain to Ms Stevenson and the man that he couldn't do it and both the man and Ms Stevenson tried to convince him that he could. Paul told him that it had to be done that night and handed him a large black handled kitchen knife which Mr Black held for approximately 30 seconds before handing it back repeating "I can't do this". (There was an issue in cross-examination about the fact that Mr Black recalled the name of the man as "Paul" given that he could not remember the appellant's name when he spoke to the police the following day. However, Mr Black was able to give the police a detailed description of the appellant.) 22 While in the carport, the appellant told Mr Black several times that there were two ways that he wanted his wife killed or to disappear saying that his wife could not swim and that she could be dragged into a lake and left to drown or she could be killed and he would bury her under some concrete landscaping he proposed for the backyard. The appellant named the lake which was north of Lithgow. The appellant told Mr Black more than once that it had to be done that night. At one point, the appellant told Mr Black that his wife was in the bathroom brushing her teeth and he should go and get her immediately. The appellant told Mr Black that he would be paid $5,000 for murdering his wife but that he would not be paid for approximately four months as the appellant intended to be "overquoted" on a landscaping job in his backyard and he would be paid from that money so as not to arouse suspicion. 23 Mr Black repeated that he would not be able to do it but would contact someone who would. 24 The appellant told Mr Black that he did not want to "lose everything", was tired of his relationship with his wife, the way his wife controlled him and spoke a different language. Mr Black and Ms Stevenson then walked to the end of the street and approximately five minutes later the appellant arrived in a car and drove them to a nearby house owned by the appellant. 25 Once inside this house Mr Black repeated that he could not "do the job", but that he could find someone that would. The appellant asked who that was and Mr Black told him that he knew someone called Aaron through school, who was involved in gangs around the Penrith area. 26 The appellant left shortly thereafter saying that he would return at 3 am to collect them. Mr Black did not see the appellant again until approximately 4 am when the appellant was in a car outside honking his horn. The appellant was now dressed in a CityRail uniform and said that he was running late for work. 27 Mr Black said he was very distressed on the night and thought that if he left the appellant and Ms Stevenson they might kill Mrs Butcher. He said that he slept at the house with Ms Stevenson because it was the only place he had to go. 28 Ms Stevenson and Mr Black got into the car and Mr Black was dropped at Blackheath railway station. Mr Black did not recall any further discussion in the car about killing the appellant's wife. 29 On 7 September 2006, Mr Black telephoned Ms Stevenson and arranged to meet her and the appellant at Katoomba in the late morning. Mr Black again told Ms Stevenson that he could not do it and asked her to give him time and he would find someone to do it. 30 However, at 9 am on the morning of 7 September 2006, Mr Black went to Katoomba Police Station and gave a statement to police outlining the events of the previous night. After speaking with the police, Mr Black took a telephone call from Ms Stevenson and he delayed the meeting with her and the appellant. Mr Black gave the police the gloves that he had been given by Ms Stevenson which he had kept in his jacket. 31 On the following day, Friday 8 September 2006, Mr Black returned to Katoomba Police Station where he was introduced to a person named "Jack" who was an undercover policeman. Arrangements were made for Mr Black to go to Lithgow with Jack and meet Ms Stevenson. Mr Black and Jack then drove to the McDonalds at Lithgow arriving at 8 pm. Mr Black contacted Ms Stevenson and asked her and the appellant to meet them there. Ms Stevenson told Mr Black that the appellant could not make it. 32 Ms Stevenson met Mr Black and Jack in the McDonalds carpark and Mr Black introduced Jack to Ms Stevenson as a friend of a friend before leaving to go into the McDonalds. Ms Stevenson sat down in the front seat with Jack. Mr Black was inside McDonalds for approximately 25 to 30 minutes after which he saw Ms Stevenson enter and go into the bathroom where she remained for a few minutes before leaving in a different direction to Jack's car. After approximately 20 minutes, Jack came inside and told Mr Black to come with him back to the car. 33 Back in Jack's car Mr Black tried to contact Ms Stevenson, but kept getting her message bank. Mr Black and Jack remained in the carpark for approximately an hour before leaving on foot and getting into a police car further down the road. 34 After that meeting, Mr Black made several unsuccessful attempts to contact Ms Stevenson but did not speak with her again until 14 September when she rang him at about 8 am. Ms Stevenson told Mr Black that the appellant wanted to meet him at Bullaburra train station where he was working. Ms Stevenson did not explain why. 35 After receiving that call, Mr Black contacted police who drove him to Wentworth Falls railway station. He was not equipped with any recording device. Mr Black then took a train to Bullaburra station. He arrived at the station. Mr Black approached the appellant and asked how he was. The appellant told Mr Black "things are good now" and asked him to come inside and have a conversation in the office. Inside the office, Mr Black asked the appellant, "So what are we going to do with your other half?" and the appellant replied, "I don't want her killed. I am going to drag the bitch through the courts." Mr Black replied "That's a relief" and the appellant said "You don't seem … the type that could do it". Mr Black then asked the appellant, "What about Jack?" and the appellant replied, "Jack seems like the type that could do it but what if he gets caught and it comes back to me?". To this Mr Black said that he had a personal reassurance from his friend Aaron that Jack was a professional and that nothing would come back to him. The appellant then said: "Don't worry about it. I don't want her killed. I am just going to drag her through the courts and fight for custody. I don't even care if I have to pay her $50,000 or whatever, I just want to move on." The appellant explained that he had changed his mind because "for the first time in a long time I'd woken up and looked in the mirror and seen something I hadn't seen in a long time which was happiness". He said that he just found out that Ms Stevenson was pregnant and "[he couldn't] believe [he was] going to be a father again" and "worser than killing his wife would be to see her see him happy with another woman and starting another family". The appellant told Mr Black that he had only known for a few days that Ms Stevenson was pregnant. The appellant then asked Mr Black how long he had known that Ms Stevenson was pregnant. Mr Black told the appellant that he had known for about a week and that Ms Stevenson had not known how to tell him (that is the appellant). The appellant and Mr Black then had a general conversation about a number of matters. 36 Various matters were put to Mr Black in cross-examination by counsel appearing for the appellant, including the proposition that Mr Black encouraged the appellant to kill his wife. 37 The conversation between Mr Black and the appellant at the railway station took approximately 20 minutes and ended as the appellant finished his shift and was catching a train. Mr Black remained at the railway station until he was collected by police. Some hours later Mr Black made a statement to police. 38 Mr Black had a number of criminal convictions including some for dishonesty and minor violence. In September 2006, he was subject to a good behaviour bond and a suspended sentence. 39 After reporting the matter to the police, Mr Black had become a registered source and was told by a detective on 7 September 2006 that he might be entitled to monetary payment. Mr Black was cross-examined to the effect that he went to the police to "get in good with the police" because of his suspended sentence and history. Ms Stevenson 40 On 18 September 2006 Ms Stevenson was charged with two counts of solicit to murder, one count being related to the approach she made to Mr Black on 6 September 2006 and the other to the approach she made to the man known as Jack on 8 September 2006. Ms Stevenson pleaded guilty to those charges and was sentenced to a term of imprisonment. In the course of sentencing proceedings, Ms Stevenson gave an undertaking to the court to give evidence against the appellant and as a result of that undertaking received a 25 per cent discount to her sentence. 41 Her evidence included the following. Ms Stevenson had known the appellant on and off for six years and in July 2006 commenced a sexual relationship with him. At the time Ms Stevenson was married with a young son. 42 A few weeks before her arrest, Ms Stevenson moved into one of the appellant's houses in Lithgow with her young son. The appellant spent most nights with Ms Stevenson at the house. Ms Stevenson knew that the appellant was married although she never met his wife. 43 After their relationship commenced the appellant told Ms Stevenson that he was having trouble with his wife and wanted to leave her. The appellant told Ms Stevenson that he was going to lose his children and most of his money and houses if he and his wife separated. A few weeks into their relationship the appellant started to say that he did not want his wife anymore and that she was going to take the children back overseas and that he should kill her. Ms Stevenson thought that the appellant was joking the first few times he said that he wanted to kill his wife. However, she said that after five or six times she realised he was serious. At some point, the appellant told her that his wife could not swim and that he was going to take her to Wallerawang Dam and drown her. The appellant said that he wanted Ms Stevenson to help him kill his wife. 44 Ms Stevenson gave evidence that on 6 September 2006, she met Mr Black at Blackheath and travelled to Lithgow where they went to the Lithgow Hotel. At the hotel Ms Stevenson told Mr Black that she had a friend who wanted his wife killed and she also told him that she was pregnant. She said that Mr Black was a bit shocked but was willing to help. 45 Ms Stevenson said that she left the hotel on three or four occasions because the appellant, who was driving around, had called her on her mobile phone from outside the hotel. 46 Ms Stevenson said that she and Mr Black left the hotel after dark and walked in the rain to the street on which the appellant's home was and they took shelter in the carport of a house across the road and waited for the appellant. 47 Ms Stevenson said that she left Mr Black and met the appellant in the driveway of his house at which time he asked her, "Are you ready to go?". Ms Stevenson took gloves, handcuffs, tea towels and keys from the front seat of one of the appellant's cars and they crossed the road to meet Mr Black. After the appellant returned to the house briefly and returned to Mr Black, Ms Stevenson said she heard Mr Black tell the appellant that he needed more time and the appellant saying that he wanted his wife killed there and then, producing a kitchen knife with a wooden handle. 48 The appellant came out of his house a couple more times according to Ms Stevenson to ensure that she and Mr Black were right to go ahead with what he wanted done. 49 Ms Stevenson said they walked back down the street. She said that they did not want anything further to do with the plan and were getting scared in particular because a knife had been produced. The appellant then came up in his car and drove them to one of his houses. Ms Stevenson said that when they arrived at the house the appellant came in and told them that he would pick them up the next morning at 4 am. 50 At approximately 4 am the appellant picked up Ms Stevenson and Mr Black in his car and dropped Mr Black at Blackheath railway station before continuing on to Katoomba with Ms Stevenson. It was snowing and the appellant was running late for work. She said there was no discussion that morning for plans for the appellant's wife. Ms Stevenson arranged to meet Mr Black's friend, "Jack" in the McDonalds carpark. Ms Stevenson said that she got into the car with Jack and while in the car tried to call the appellant but was unable to do so as she had no credit on her phone. She then told Jack that she would seek to use a pay phone or find the appellant. After speaking with Jack she went to the toilet at McDonalds and tried unsuccessfully to call the appellant. 51 After the meeting with Jack on 9 September, Ms Stevenson told the appellant about Jack and told the appellant to contact Mr Black. 52 On 14 September 2006, the appellant told Ms Stevenson that he wanted to speak with Mr Black. Ms Stevenson then arranged the meeting between Mr Black and the appellant. 53 On 16 or 17 September 2006, the appellant told Ms Stevenson that he might as well just divorce his wife as she was going to get everything anyway. Ms Stevenson gave evidence that a couple of weeks prior to 6 September 2006 the appellant told her that he was digging a hole in his backyard to look for old pipes. 54 Ms Stevenson identified a yellow tea towel, handcuffs and a pair of rubber gloves as being similar to the ones the appellant had given her on the night. 55 Ms Stevenson said that she found out that she was pregnant just before 6 September. She said that some days after learning that she was pregnant she lost the baby though she did not consult a doctor again. Evoon Butcher 56 Mrs Butcher gave evidence about a number of matters. There had been problems in the relationship from about August 2003 and continued after the birth of their second child. In June 2006, the appellant moved into a separate bedroom complaining of a sore back. At around this time he took off his wedding ring and spent more time away from home including staying away overnight. In August 2006 Mrs Butcher had noticed a hole dug in the backyard. The appellant had told her that he was looking for a pipe from an old toilet. Mrs Butcher gave evidence about an evening in the first week of September 2006 that accorded in general terms with the movements of the appellant recounted by Mr Black and Ms Stevenson. She also gave evidence that the following morning the appellant woke late for work. 57 Mrs Butcher said she recalled the evening as it was a "strange night" and it was in the same week that she had been told by friends that Mr Butcher had told them that he had reported Mrs Butcher to the police for throwing her son from a window and shaking the baby or threatening to throw the baby out the window. When she confronted the appellant about this he said that he had not done it. 58 After the arrest of the appellant, Mrs Butcher obtained mail from the appellant's post box at Lithgow which included two letters from Ms Stevenson and a further letter from a jewellery shop in Bathurst enclosing a receipt for a deposit paid for a diamond ring and offering congratulations. 59 Mrs Butcher cannot swim. Constable Christopher James 60 Constable James gave evidence that he was on duty at Lithgow Police Station on 28 August 2006 and received a telephone call from a person who identified himself as Paul Butcher. The caller asked what he could do if someone was abusing his child. After further questions the caller told Constable James that his wife "shakes the baby". In the discussion about what should be done the caller asked Constable James whether she could be deported. Constable Batterson 61 In the afternoon of 28 August the appellant and a young female came to Lithgow Police Station. The appellant introduced himself to Constable James and Constable Batterson who took a statement from the appellant. There was some difficulty in obtaining a statement from the appellant as he discussed a number of issues to do with his wife including their problems and the question of custody. The appellant told Constable Batterson that his wife wanted residency through the marriage with him. 62 On 30 August 2006, Constable Batterson rang the appellant and told him that she would be coming to his home to speak to Mrs Butcher. The appellant became upset at this and said he did not want Constable Batterson coming to the house. Later, the appellant attended the police station and told Constable Batterson that he did not need police help anymore and that he had spoken with immigration. Ms Jean Lawson 63 Ms Jean Lawson was an acquaintance of the appellant. She had been approached by the appellant to give a statutory declaration to the effect that the marriage to Mrs Butcher was genuine. Ms Lawson then said that the appellant had "changed his tune". Sometime in about August 2006, the appellant told Ms Lawson that his marriage was a farce, that he and Mrs Butcher were no longer talking, that Mrs Butcher had turned the children against him, that he would come home and find their daughter in a corner shaking and that the house was untidy. Ms Lawson said she had never seen the appellant's house untidy nor observed the children mistreated in any way. Mr Tom Delbeug 64 Mr Delbeug and his wife Ms Magdalawi ran a ceramics business in Wentworth Falls. In about Easter 2006, Mr Delbeug met the appellant through his business. Mr Delbeug and his wife subsequently became friendly with the appellant and his wife, dining at their home in Lithgow and having them to their own home for a meal in about August 2006. 65 Mr Delbeug gave evidence that he spoke to the appellant on that evening and asked the appellant what was wrong. The appellant replied "I do not like my wife, I hate my wife". The appellant then said "I have to do just something just, you know, kill her or something – get – set up something, some people to kill her or something". Mr Delbeug told the appellant not to be crazy and not do this and that it was not nice as he had nice kids and a nice family and that if he had any problems they could sort it out. 66 Later that day, Mr Delbeug told his wife in the presence of their sons that the appellant had said that he was going to pay people to drown Evoon because he was unhappy with her. Mr Emil Jamal 67 Mr Emil Jamal is the son of Ms Magdalawi and Mr Delbeug. He was present on an occasion in July or August 2006 when the appellant and his family had a meal at his parents' home. Mr Jamal said he was browsing the web in the living room when the appellant sat down and told him that he had dug a big hole in his backyard to put his wife. Mr Jamal said, "you're kidding" and asked whether the appellant's wife had ever asked what the hole was for. The appellant told Mr Jamal that he had said to his wife that the hole was for a sewer or plumbers pipe. The appellant told Mr Jamal that he was going to kill his wife and put her there or pay someone $5,000 or $10,000 to kill her and put her in the hole. Mr Jamal also recalled the appellant saying the he didn't get along with his wife and that she was going to take everything from him. Mr Jamal said that he did not take the appellant seriously though he told his mother about it. Diane Clyne 68 Ms Clyne was the assistant manager of an Angus & Coote store at Bathurst. In August 2006, she assisted a man who was looking at diamond rings. Before leaving the store the man identified himself as Paul Butcher. 69 On Monday 18 September 2006 the appellant rang the store and placed an order for the ring paying a deposit by credit card over the phone. Mr Garry Boundy 70 Mr Boundy did odd jobs for the appellant at his properties. In 2006, he was contacted by the appellant who asked him to dig a hole for an outside toilet at the back of his house. The appellant had said of the hole, "the deeper the better". The appellant told Mr Boundy that the hole was to be dug to find sewerage pipes. Detective Sergeant De La Harpe 71 Detective Sergeant De La Harpe was on duty at Katoomba Police Station on Thursday 7 September 2006. He was given a copy of Mr Black's statement from Senior Constable Maund. He then drove to Lithgow with Mr Black where he was directed by Mr Black to the appellant's home and the property at Fourth Street, Lithgow where Mr Black had stayed the evening with Ms Stevenson. 72 Senior Constable Maund had also given Detective Sergeant De La Harpe a shopping bag containing two blue rubber gloves. Jack 73 The undercover operative "Jack", being an officer with the Special Services Group, met and spoke with Mr Black at Katoomba Police Station. He gave evidence that he went with Mr Black to the carpark area at McDonalds and when they arrived at the carpark Mr Black made a telephone call to a female person using Jack's mobile phone on loud speaker. That conversation was recorded. Shortly thereafter a woman walked into the entrance of a McDonalds restaurant and Mr Black made a further call on Jack's mobile phone. That telephone conversation was also recorded. The woman approached Jack's car, introduced herself by her first name and got in the front seat. Jack then gave Mr Black some money and told him to get something to eat. Mr Black left the car and went to McDonalds while Jack had a conversation with Ms Stevenson. The conversation was recorded. In the course of the conversation Jack gave Ms Stevenson a notepad and Ms Stevenson drew a map indicating certain locations on the map for him. During the course of the conversation Ms Stevenson appeared to send several text messages on her mobile and appeared to make several attempts to call the person she referred to as Paul. At the end of the conversation Ms Stevenson got out of the car and walked through the carpark. 74 The recording of the conversation was Exhibit D. The map drawn by Ms Stevenson was Exhibit E. In Exhibit D Ms Stevenson says to Jack: "The person I want taken of, basically it's the guy I'm dating's wife … I'm pregnant to him, but we've got to get rid of her, otherwise he loses everything to her. … She has to go … permanently. Like gone. Never to be seen again." Jack then asks Ms Stevenson what is in it for him and Ms Stevenson replies, "I have no idea, that's why Paul can talk that side of it." Jack then asks Ms Stevenson, "But … you're both sweet with it?" and Ms Stevenson replies, "Yeah, yeah … we want her gone … definitely want her gone." Ms Stevenson also says: "we want to, like, the other day, but, Mark kind of backed out on me. … [We want the wife] … got rid of permanently. Gone. … Anyway, as long as the kids don't see it … she shakes the shit out of the kids anyway. She treats them like crap." 75 Ms Stevenson told Jack that Mrs Butcher was about a five minute drive away and she could show him the way. 76 Jack then asked Ms Stevenson whether she wanted the victim to go back to her own country and Ms Stevenson replied, "No, no, gone. Dead. Killed. Whatever. … We want her dead." 77 Later Ms Stevenson said to Jack, "Well if you drowned her, she can't swim, so its alright. Push her off the face of the cliff." Jack then asked Ms Stevenson where the water was and Ms Stevenson replied, "Wang Dam. You keep going straight up the highway". 78 There is further conversation which is unnecessary to recount. Execution of Search Warrants 79 On 18 September 2006, a search warrant was executed for premises in Lithgow owned by the appellant. A pair of handcuffs, several blue rubber gloves and tea towels were taken. 80 At the appellant's home a large hole was observed in the backyard. The appellant's case 81 The appellant did not give evidence during the trial. Evidence was called on his behalf from a Dr Tamilarasan, a doctor consulted by Ms Stevenson on 6 September 2006 in relation to a suspected pregnancy and the appellant's sister Ms Janice Butcher as to a visit she made to Lithgow in September 2006 during which time she stayed with the appellant and Ms Stevenson at one of the appellant's properties where Ms Stevenson lived. 82 Evidence was also adduced during the course of the trial to the effect that the police investigation was inadequate in that there was no search for the knife allegedly given by the appellant to Mr Black, and no telephone records were obtained of telephone calls made by the appellant, Ms Stevenson and Mr Black during the relevant period. It was also said that no CCTV footage was obtained of the meeting on 14 September 2006 at Bullaburra railway station. This matter assumed some importance in the appeal and the position was clarified by the Crown. In fact CCTV footage was available at the trial and was available to counsel for Mr Butcher. Counsel for Mr Butcher in his closing submissions directed attention to various failings in the police investigation but did not refer to any lack of footage. 83 I will return to this in due course in dealing with the appellant's submissions. Dr Tamilarasan 84 Dr Tamilarasan was a general practitioner in Lithgow. He was consulted by Ms Stevenson on 6 September in relation to a possible pregnancy. Dr Tamilarasan performed a urine pregnancy test which was negative, but noted that Ms Stevenson could be in the early stages of pregnancy. He advised Ms Stevenson to return in two weeks time for further testing. The symptoms described by Ms Stevenson (sore breasts and nausea) were consistent with early stages of pregnancy. Janice Butcher 85 Ms Butcher stayed with the appellant and Ms Stevenson for four or five nights at the property where Ms Stevenson was living (which property was owned by the appellant). This stay was in September 2006. During her visit to Lithgow, Ms Butcher, Ms Stevenson and the appellant drove to Sydney in the appellant's car so that Ms Stevenson could attend a job interview with CityRail. On the way back the appellant stopped at Ms Butcher's house which she occupied with the appellant's other sister and the appellant announced to both that Ms Stevenson was pregnant. Returning to Lithgow that day, Ms Stevenson asked the appellant in the car with Ms Butcher why he had told his sisters that she was pregnant and the appellant replied that it was no big deal. Ms Butcher did not recall the appellant saying anything about his marriage nor him saying not to speak of Ms Stevenson to his wife. The appellant did not say anything to Ms Butcher about the situation with Ms Stevenson and his wife. The appellant seemed himself and happy because Ms Stevenson kept saying how much she loved him. Summing-up 86 The learned trial judge in a careful and detailed summing-up comprehensively outlined the evidence. He clearly explained the onus of proof, stressing that the appellant was entitled to the presumption of innocence unless and until the jury were satisfied that he was guilty beyond reasonable doubt. He explained the elements of the offence of solicit to murder and the need for the Crown to prove beyond reasonable doubt that the appellant intended, when any communication was made as to the murder of his wife, that his wife be murdered. He emphasised the parts of the record of interview of the appellant in which the appellant had denied any conversation with Mr Black in which he asked him to murder his wife and in which he had denied any knowledge of Ms Stevenson's conversation with Jack and in which he had denied that he told Mr Delbeug that he was going to kill his wife. The judge explained that the weight to be given to the record of interview was a matter for the jury and that they should bear in mind that it was made by a person of good character and that they were entitled to take that into account in deciding whether the explanation he gave was true. He emphasised the lack of obligation to give evidence and the entitlement of the accused to say nothing and make the Crown prove its case. He emphasised that Ms Stevenson and Mr Black were the essential Crown witnesses. He gave warnings as to the evidence of Ms Stevenson by reason of her being criminally concerned with the events in question. He explained fully and in some detail the reasons why caution should be exercised in relation to the evidence of someone in the position of Ms Stevenson. He also gave a warning about Mr Black and his evidence. His Honour then gave a detailed recitation of the principal elements of the evidence in a manner that has not been and could not be criticised. 87 The notice of appeal as filed sets out as grounds of appeal the following: "1. The trial in November of 2007 was all lies; it was very false and misleading. 2. I have attached written submissions that totally smashes the Crown case. 3. The Court transcripts have all been revised. 4. This is not fair as I was given a letter to go for sentencing long before my trial took place in November 2007." 88 On 17 August 2010, the appellant filed replacement submissions. It is those submissions that were addressed by the appellant at the hearing of the appeal. 89 It is difficult from the written submissions to understand with any precision what the complaints of the appellant are, beyond a repeated assertion of innocence and false evidence by others. The submissions also complain about the barrister who appeared for him. 90 At the hearing of the appeal certain matters were addressed by the appellant. 91 At the appeal the appellant first submitted that Ms Stevenson was lying and that the appellant had a witness, a Mr Sutton, who needed to come forward. He said he needed a retrial. 92 He said that certain transactions on the night of 6 September or day of 6 September were erased from his credit card statement and that there had been a "lot of funny business played [on his] case." He said he could not have left Lithgow at 4 am and arrived at Bathurst at 3.45 am. He also said that there was CCTV footage that was not presented at his trial and he needed to obtain that as well. 93 When asked what Mr Sutton would say, the appellant said that it was his belief that Mr Sutton was with Ms Stevenson in a hire car on the night or evening of 6 September and there was no sign of a person called Mark Black at that time. When asked whether he had a statement from Mr Sutton the appellant said he did not. When asked how he knew what Mr Sutton would say the appellant indicated that he did not know what he would say. The appellant said that on the day in question he saw Mr Sutton with Ms Stevenson in a hire car. 94 None of these matters were the subject of evidence at his trial. There was no cross-examination of Mr Butcher's wife in relation to his credit cards. There was no cross-examination of Ms Stevenson in relation to being in a car with Mr Sutton. 95 The appellant also said that at a certain point in his trial he told his former barrister certain things to which his barrister said, "I do not believe you because you never told the police." He said that there was evidence "like a card and so forth" that was presented to his barrister as evidence to challenge one of the Crown witnesses and the barrister failed to do so. He claimed that the barrister showed the card to the appellant's mother and stepfather who were present in the courtroom and that the barrister said he would use it against the witness, which never happened. When asked what this card was, the appellant said that one of the Crown witnesses, Ms Lawson, sent him a card in prison saying that he, the appellant, was known to Ms Lawson as a good and caring man. As was pointed out to the appellant at the appeal, Ms Lawson was not one of the crucial witnesses. 96 The appellant also said that a Crown prosecutor prior to his trial had said that Mr Butcher did not "commit the crime". As was pointed to the appellant in the discussion at the appeal, that was irrelevant, but was probably a reference to the fact that the appellant did not carry out the murder of his wife. 97 The appellant also referred to Ms Stevenson saying that she was pregnant when in fact she was not. That did not reflect the evidence of Dr Tamilarasan precisely. As I have earlier said, Dr Tamilarasan's evidence was that the test was negative, but that the symptoms were consistent with the early stages of pregnancy. The appellant stressed this because he asserted that Ms Stevenson was trying to incriminate him in a crime that he did not commit. 98 It should be noted that the trial judge found, as a matter of fact when he was sentencing the appellant, that Ms Stevenson was not pregnant but she believed she was. 99 The appellant asserted that there was missing CCTV footage from Bullaburra railway station and that this should have been subpoenaed. The Crown stated in submissions that the CCTV footage of 14 September was available at the trial to the appellant's counsel. This was investigated by the Crown and it appears to be the case. The appellant has produced no evidence that the footage was not available at the time. 100 The appellant asked the court to examine the CCTV footage which was produced on appeal. The court did not examine the CCTV footage. No proper basis was laid for it to do so. Nor was there any basis put forward in evidence by the appellant for any assertion that the CCTV footage was not before the court and before his counsel at the trial. This was effectively an application for fresh evidence. No foundation for it has been laid and for this reason the Court refused the application at the appeal. 101 The appellant complained about the record of interview with the police being edited. No legitimate ground was established from any editing of the police record of interview. As was pointed out to the appellant at the appeal, this process sometimes occurs to ensure that prejudicial material is removed. No coherent basis was established to indicate any impropriety occurred in such editing as may have occurred of the record of interview. 102 As to the written submissions, many of them take issue with aspects of the evidence, especially that of Ms Stevenson. No coherent basis was identified to found any argument that the trial miscarried in any way. 103 The written submissions also contain unsubstantiated allegations of bias against the trial judge. 104 The written submissions also contain numerous criticisms of the evidence at the trial. 105 Having read the written submissions, I am unable to identify any coherent basis upon which the conviction might be doubted. If accepted, as it appears to have been, the evidence of Mr Black, Ms Stevenson, Mr Delbeug and Mr Jamal was overwhelming. 106 There is no basis to consider that there was any irregularity in the trial. 107 The appeal should be dismissed. 108 ADAMS J: I agree with Allsop P. 109 HOWIE AJ: I agree with Allsop P. ********** 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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