Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Richardson v R [2013] NSWCCA 218 Hearing dates: 17 September 2013 Decision date: 27 September 2013 Before: Hoeben CJ at CL at [1] Latham J at [95] Beech-Jones J at [105] Decision: In relation to the conviction appeal, appeal dismissed. In relation to the application for leave to appeal against sentence, grant leave to appeal but dismiss the appeal. Catchwords: CRIMINAL LAW - conviction appeal - admission of evidence for non-propensity purpose - evidence relevant to motive - evidence accompanied by comprehensive direction to jury not to engage in propensity reasoning - no objection taken at trial - the same evidence relied on by defence in its case - whether evidence had to be established beyond reasonable doubt - no miscarriage of justice - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - whether treatment of corpse after killing relevant to seriousness of offending - whether excessive weight given to treatment of corpse after death - ground of appeal not made out. Legislation Cited: Crimes Act 1900 - s18(1)(a), s81C Crimes (Sentencing Procedure) Act 1999 - s61(1) Evidence Act 1995 - s97(1) Cases Cited: ARS v R [2011] NSWCCA 266 Cao v R [2010] NSWCCA 109 FP v R [2012] NSWCCA 182 Gebara v R [2012] NSWCCA 107 ES v R (No 1) [2010] NSWCCA 197 KJS v R [2013] NSWCCA 132 R v Baker [2000] NSWCCA 85 Knight v R [2006] NSWCCA 292; 164 A Crim R 126 R v Yeo [2003] NSWSC 315 Ryan v R [2009] NSWCCA 183 Yang v R [2012] NSWCCA 49; 219 A Crim R 550 Category: Principal judgment Parties: Neal Richardson - Appellant Regina - Respondent Crown Representation: Counsel: Ms N Carroll - Appellant Ms N Adams SC/Ms JE Davidson - Respondent Crown Solicitors: George Sten & CO - Appellant S Kavanagh, Solicitor for Public Prosecutions - Respondent Crown File Number(s): 2010/110783 Decision under appeal Before: McCallum J File Number(s): 2010/110873 Judgment 1HOEBEN CJ at CL: Offence and sentence On 1 November 2011 the appellant was arraigned before McCallum J in the Supreme Court on a charge that between 17 April and 25 April 2010 at a place unknown in the State of NSW, he did murder Kirrilee Nicole Grant (the deceased) contrary to s18(1)(a) of the Crimes Act 1900. 2The appellant pleaded not guilty and the trial proceeded before her Honour and a jury of twelve. Both manslaughter and murder were left to the jury. On 21 November 2011, the jury retired to consider its verdict. On 23 November 2011 the jury returned a verdict of guilty to the offence of murder. 3On 18 May 2012 the appellant was sentenced to a term of imprisonment comprising a non-parole period of 21 years, commencing 4 May 2010 and concluding 3 May 2031, with a balance of term of 7 years concluding 3 May 2038. 4The appellant has appealed against his conviction and has sought leave to appeal against his sentence. 5In relation to his conviction, the appellant relies upon a single ground of appeal. Ground 1: The use of tendency evidence for the non-propensity purpose to establish a motive to kill has resulted in a substantial miscarriage of justice. The Crown and Defence case at trial Crown case 6The appellant and the deceased had been in a relationship from time to time since 1997. They had both suffered from depression and had been addicted at times to heroin. 7Between 2007 and 2009 they were living together. In 2009 the deceased lost her job and the relationship between the appellant and the deceased broke down. 8On 23 October 2009 the deceased attended Maroubra Police Station and complained that the appellant had bound and gagged her, jumped on her and taken her wallet the night before. The appellant was charged with assault occasioning actual bodily harm and Local Court proceedings began. 9The deceased lived with Mr Phillips, a close friend and ex-partner, for about two months before returning to live at the appellant's Malabar flat in mid April 2010. She was due to give evidence against the appellant in the assault case, which was listed for hearing on 19 April 2010. 10On 12 April 2010 the deceased's car was transferred into the appellant's name. On 16 April 2010 the deceased was locked out of the appellant's unit. She called the police and said that she had been assaulted by the appellant. At the time she was observed to be significantly affected by alcohol and drugs and was so incoherent that when police attended, they took her to hospital. The following day she returned to the appellant's unit. 11On the night of 17 April 2010, the deceased borrowed a mobile phone from a neighbour. When the neighbour came to the door to retrieve the mobile phone, she observed the deceased with a tissue over her mouth and the neighbour said that the deceased told her that the appellant was trying to kill her. In the early hours of 18 April the deceased and the appellant made several telephone calls to the NAB. Those calls were recorded. The purpose of the calls was to order a new credit card for the deceased. At times during the calls, the deceased could be heard crying. During the calls she said that she and her boyfriend were going away on holidays. 12At approximately 11pm on 18 April, a neighbour heard noises coming from the appellant's unit which sounded like something being moved or packed. She next heard the sound of something heavy being moved down the stairwell. A few minutes later, she observed from her balcony the appellant standing next to a white vehicle holding a trolley. The rear driver's side door was open. 13On Monday, 19 April the deceased failed to appear at Waverley Local Court. Telephone calls on 18 and 19 April by a police officer to the deceased's mobile phone were not answered. On 19 April Mr Phillips reported to the police that the deceased was missing. He had attended the appellant's unit to ask where the deceased was, had observed some of her property there and did not accept the appellant's account that she had left. 14The police attended the appellant's unit a number of times to speak to him about the deceased. The unit was searched on 24 and 25 April 2010. The appellant's car was taken by police on 25 April 2010. 15On 30 September 2010 the deceased's dismembered body was found by a property owner in Gerringong, on the side of the road under a bush. It was in a number of plastic bags. The body was significantly decomposed. 16A forensic pathologist identified those injuries that could be observed from the remains. These were consistent with having occurred while the deceased was still alive. Due to the degree of decomposition, the dismemberment of the body and because parts of the body were missing, a cause of death could not be determined. The decomposition of the body caused the pathologist more problems in reaching conclusions than the dismemberment. 17An examination of the appellant's motor vehicle revealed blood in a number of areas including: (a) On the steering wheel. (b) On the driver's door armrest. (c) On the inside boot lining. (d) On the rear car seat cover. (e) On the top of the base plate of a removalist's trolley located on the backseat of the vehicle. (f) On the handle of the shovel found in the boot of the car. DNA, extracted from swabs taken from the above yielded a profile consistent with that of the deceased. During a search by police of the appellant's premises on 27 April 2010, a Bunnings receipt for the purchase of a shovel and a Coles receipt for Multix Garden Bags were found. 18It was the Crown case that the appellant had used a circular saw and other items found with the body to dismember the body in his apartment, to make it easier to remove without arousing suspicion. Defence case 19The appellant gave evidence at trial. The effect of his evidence was as follows. He had met the deceased in 1997 and they had commenced a relationship. He became aware that the deceased worked as a prostitute and that she was a user of heroin, cocaine, alcohol and prescription drugs. After some time, the relationship broke up. In 2002 he overcame his heroin addiction. In 2003 he began receiving a disability pension and in 2005 he moved into a Housing Commission unit in Wyee Place, Malabar. 20In 2004 he had a chance meeting with the deceased and in 2007 they resumed their relationship. The deceased moved into his unit. The appellant said that at this time, the deceased had completed a methadone program and was no longer working at Kings Cross. He said that he was working as a labourer and through his contacts, obtained a job for the deceased, working as a strapper with a racehorse trainer in Randwick. 21In early 2009 the deceased lost her job after she was injured. This led to her drinking more and she started using drugs again. The appellant said that he was the holder of the deceased's keycard for the majority of the time because she frequently lost her wallet and because she could never remember her PIN. 22The appellant gave evidence concerning the assault charges brought against him in relation to the deceased as follows. The deceased had a twin sister who had been murdered. On 22 October 2009 the deceased drank a bottle of Bourbon and took some Zanax tablets. An argument occurred when the appellant refused to take the deceased to Kings Cross to continue drinking. The appellant said that the deceased wanted to end her life and be with her sister. She went to the toolbox in the kitchen, collected some cable ties, a pair of scissors, some tape and a sock. She wanted him to kill her in a way similar to how her sister had been killed. 23The appellant said that he was concerned for the neighbours because the deceased was getting louder and louder, so he put the cable ties on her ankles and wrists and it seemed to calm her down. After about 20 or 30 minutes, he unclipped the ties with scissors and gave her four or five Valium tablets. He took some of the tablets himself and went to sleep. Earlier in the night, he had taken the deceased's wallet to prevent her going to Kings Cross and causing trouble for herself. When she asked for the wallet he refused to give it back because he was fearful of her running off to the Cross and getting into trouble. 24The appellant denied grabbing the deceased by the neck and hauling her to the floor. He admitted that he did take the deceased's wallet and say to her "you're not getting it back". He admitted that he also said "you're not leaving the flat, you're not calling the police. I'm going to teach you something tonight". He agreed that he probably also said "I've had enough of you. I've put twelve years into you and you don't respect me. I'm going to teach you a lesson." 25The appellant denied saying to the deceased that both she and her sister deserved to die. He denied putting a sock in her mouth. He denied striking the deceased that night, or at any time in their relationship. He denied using gaffer tape on her that night. 26The appellant said that when he woke up, the deceased was gone and he assumed that she had taken off to the Cross. Later he was spoken to by police and charged. He was refused bail and remained in custody for five weeks. When he was released from custody, he returned to the unit and discovered that a lot of his valuables had been stolen or were missing. He went to the police but they told him to deal with it in the Family Court. 27The appellant said that his relationship with the deceased continued to deteriorate because of the deceased's intake of alcohol and tablets. There was a period of time when the deceased was living at two places - his place and that of Mr Phillips. This went on for about two or three weeks. The appellant said that as the hearing date for the assault charges of 19 April came closer, he and the deceased talked about how she had intentionally missed the previous court dates and how she was never going to attend the upcoming one. He said that it was the deceased's belief that because she was never going to attend court, the charges would be dismissed. 28The appellant said that he was aware that the deceased was complaining that she was in a violent relationship with him in the lead up to 19 April. He said that she was trying to make him look bad as a person because for the first time in their relationship, he was putting his foot down and saying no to a lot of her requests and demands in relation to alcohol and prescription drugs. He denied assaulting the deceased on 16 April. 29The appellant said that on 17 April the deceased went to the Cross. When she got home, she took tablets and drank a bottle of alcohol. She rang the NAB to cancel her keycard because she believed that Mr Phillips had the card and was going to withdraw money. The appellant said that the deceased was extremely intoxicated and that her words were slurred. At one stage, the operator could not get much out of the deceased and it was necessary for the appellant to speak on the phone himself. 30The appellant said that after the borrowed mobile phone was returned to the neighbour, the argument between him and the deceased continued. The deceased wanted to go back to the Cross. She was determined to get out of the house and he did not want her to go. She started slapping and hitting him to get past him to the front door. He pushed her hands away to stop her hitting him. He pushed her and they both fell over and the deceased smashed her head on the coffee table in the lounge room. She remained on the floor and did not move. He checked her breathing and touched her on the lips and on the shoulder. He checked her neck for a pulse and that was when he panicked. Her lips had turned a bluey-purple colour and her skin was turning a similar colour, but in blotches. 31The appellant said that he sat on a lounge chair and had two or three cigarettes in a row. He was panicking, thinking that the police were going to think that he had killed her. The appellant said that he thought that because of the recent attention he had been receiving from the police, the allegations that had previously been made against him and the fact that the court case was on the next day. He took the deceased into the bathroom and then came back to the lounge room. He had some marijuana and some more cigarettes and tried to think of what to do. 32He went to the laundry, got a power saw and dismembered the deceased's body. Initially he was going to just dispose of the body but he was fearful of being seen taking the body out of the unit. He put the deceased's body in black garbage bags. The bags were too weak and later that day he bought stronger bags and a shovel. 33The appellant said that he intended to bury the deceased in bushland. He left at about midnight on Sunday and went to the South Coast. He used the trolley from the storeroom in the unit block. He found a dirt road that he thought might lead to somewhere obscure. He attempted to dig a hole but the ground was rock hard and it was not possible to use the shovel. He wanted to get it over and done with as quickly as possible, so he placed the bags in a lantana bush. 34The appellant said that the next day he went to court. He said that he did not kill the deceased to stop her from going to court. He said that she never had any intention of going to court. He did not mean to kill the deceased, or hurt her. The appellant said that he did not tell the truth about the deceased to Mr Phillips when he saw him a few days later. He did not tell the police the truth about the deceased because he was fearful of being accused of killing her. He did not tell the truth to anybody when they asked about the deceased. 35Under cross-examination the appellant agreed that when police spoke to him on 23 October 2009 he told them that there had been no cable ties tied around any part of the deceased's body. He agreed that he had lied to police when he was spoken to in 2009. He said that what he did in the interview was to try to make himself look better than the deceased. He agreed that he had lied to protect himself. 36The appellant agreed that in October 2009 the motor vehicle was the deceased's and that it was her pride and joy. He said that he was not angry with the deceased because he had been bail refused after she made her complaint against him on 23 October 2009. He was more disappointed than angry. The appellant denied telling a mutual friend that when the court case was finished he was going to "piss Ms Grant off". He said that what he in fact told the friend was that they "were in the process of possibly breaking up". 37The appellant said that he never once thought that he was going to go back to gaol on 19 April and that he had no fear about that court date. He agreed that he did not want to go back to gaol on that date. He agreed that he was angry when the deceased made a complaint against him and police came to his unit on 16 April 2010. Conduct of trial 38Before the trial commenced, a number of pre-trial issues were raised with the trial judge. On 24 October 2011 the Crown informed her Honour that although notice had been given pursuant to s97(1) of the Evidence Act 1995 (the Act), the Crown did not propose to rely on any aspect of the deceased's prior relationship with the appellant as tendency evidence. 39On 28 October 2011 there was further discussion about the tender of the deceased's statement to police on 23 October 2009 (the statement). Senior counsel for the appellant was asked whether he objected to the admission of the statement. He informed the trial judge that the appellant did not dispute everything that occurred on 23 October and that "aspects of the complaint made by the deceased as to the accused's conduct on 23 October will not be in contest" (T.28 October 2011, p32.8). He said that "the extent to which there may be exaggerations these may be capable of being addressed in evidence" (T.28.10.2011, p33.23). 40Senior counsel for the appellant's ultimate submission was "I have to concede that there were relevant aspects of what she says which would animate the non-tendency headings which would make it relevant" (T.28.10.2011, p32.45). He subsequently added "I am content on the motive aspect" (T.28.10.2011, p33.5): "HER HONOUR: There must be a compelling argument for the Crown to get it in as motive. TURNBULL: I have never for a moment thought otherwise." (T.28.10.2011, p33.10) 41Later senior counsel for the appellant said: "I have to say frankly that I will expect there will be certain matters which ought to come forward, but those could come forward through the police officer who took the statement without going into a statement from her and I would certainly be very much opposed to the statement itself going in in any documentary form. So it is a matter where one has to be careful, but I accept there is relevance for motive." (T.28.10.2011, p33.23) 42What is apparent from those exchanges is that as at 28 October 2011 (before the trial had commenced) senior counsel for the appellant had conceded that the contents of the statement were relevant as evidence of motive, but was still considering his position as to the best way in which that evidence should be adduced. 43The trial commenced on 1 November 2011. On 2 November 2011 Constable Morgan gave evidence of taking part in a search of the appellant's premises under a search warrant on 27 April 2010 and locating a number of items including the statement. The statement was marked "MFI 4" at that time. 44On 3 November 2011 Senior Constable O'Connor gave evidence that she had been working at Maroubra Police Station on Friday, 23 October 2009 when the deceased attended to report the assault. She observed that the deceased had been treated by ambulance officers and had red marks around her wrists and ankles. The deceased told her that the injuries were the result of the appellant tying her up with cable ties. She complained of chest pains, stating that the appellant had jumped on her chest. She provided the police with a bag which had four black cable ties in it, which appeared to have been cut. Senior Constable O'Connor subsequently took the statement from the deceased in the emergency room of the Prince of Wales Hospital. This was the statement MFI 4. 45The Crown sought to tender MFI 4 during the evidence of Senior Constable O'Connor as being relevant to motive. Her Honour then asked Senior counsel for the appellant "Is it appropriate to admit it for the purpose you understand it was being tendered for?" and this exchange ensued: "TURNBULL: No, not if there is an additional matter and can I just say and I think your Honour may be thinking this, it may be that your Honour will need to assist the jury with a compendious direction at the appropriate time. HER HONOUR: That was exactly what was going through my mind. Could we defer it because when it is tendered, I need to know precisely the purpose for which it is going in, so that I can explain that to the jury." (T.3.11.2011, p203.11) 46Senior Constable O'Connor was then cross-examined by senior counsel for the appellant who adduced evidence from her in relation to what happened after the deceased made the statement. Senior Constable O'Connor agreed that the appellant had been charged and refused bail in relation to the deceased's allegation and that police were unable to locate the deceased to give evidence against him on 30 November 2009 which was the first date fixed for the hearing of the assault charge. Senior counsel for the appellant also elicited that the punishment which the appellant faced would have been "meted out" in the Local Court. The matter was adjourned to enable the police to locate the deceased and another hearing date of 19 April 2010 was fixed. 47At the conclusion of the cross-examination of Senior Constable O'Connor, the Crown prosecutor pressed for the tender of the statement. In response senior counsel for the appellant said: "I cannot resist my learned friend's proposition that the allegation itself and some of the detail of that allegation being serious as it is, is relevant to the question of motive as she seeks to develop it. I cannot resist the suggestion that in relation to the injuries, there may be a motive because of the likelihood of fulltime custody, it being suggested that they are serious and the conduct is serious enough to warrant that." (T.3.11.2011, 220.7) 48The morning after that evidence was given, her Honour gave the jury the following direction: "Before we get underway today with any further evidence, I want to explain something to you about some of the evidence you have heard yesterday. You heard evidence from a number of witnesses about two separate occasions before April 2010 when Kirralee Grant made allegations that the accused had assaulted her. The first in time were the allegations she made on 23 October 2009 and you heard from Senior Constable Brooke O'Connor about that. She was the blond Constable from Sawtell, with the kind of suntan you might have if you work in Sawtell. And she had taken a statement from Kirrilee Grant and in due course the accused was charged in October 2009 with the offence of assault occasioning actual bodily harm on the strength of what Kirrilee Grant told Constable Brooke O'Connor. The second in time was the evidence you heard about the events of the night of 16 and 17 April 2010. And to put that time frame in context, the charge of assault occasioning actual bodily harm from the October allegations was due to be heard in court on 19 April 2010. ... So, there doesn't appear to be any issue about the fact that Kirrilee Grant died and that the accused dealt with her body. There is, however, very clearly a critical issue about the events before that. So, the evidence of the earlier allegations made by Kirrilee Grant against the accused has been admitted to enable you to assess the events of the weekend in their context. The Crown relies upon the evidence because it says that the fact that the accused was due to face that charge in court on the Monday, 19 April 2010, gave him a motive to be rid of Kirrilee Grant. That's the Crown case. Importantly, the accused also relies on that very circumstance. His case, as I apprehend it, will be that, of course it would be perceived that he had a motive to be rid of Kirrilee Grant and that is precisely why he took the steps he did in dealing with her body, but that he is not guilty of her murder. That's the accused's case. Obviously, you are going to hear a great deal more about the way in which the Crown puts her case and, from Mr Turnbull, about the way the accused puts his case. You will be addressed by them in some detail. I'm not purporting to summarise their whole cases at the moment. I am just leading up to the important point I wanted to make to you this morning. Particularly important in that context of the accused's case, as I apprehend it will be, is the evidence of 16 and 17 April, that's the Friday night, three days before the accused is due to appear in court, he finds himself facing a further allegation by Kirrilee Grant, with seven police attending his unit. And after they are called no statement is taken from her and no injuries are found, but plainly he would have been acutely aware of those events over the weekend. Most important is this: The evidence is not relied upon to prove that the accused had a tendency to act in any particular way or to have a particular state of mind. You must not use the evidence of the prior assaults to reason that because it is alleged by Kirrilee Grant that he was aggressive towards her on an earlier occasion that therefore he must have been aggressive towards her in events relating to the charge you are to determine of murder. It would be wrong of you to reason in that way. That's because the Crown doesn't rely on the evidence for that purpose. The Crown doesn't rely on the evidence to establish that the accused had a tendency to use violence against Kirrilee Grant or to be aggressive towards her and he was the kind of person that acted in that way and, therefore, it is likely he is guilty of murder. It is not put in that way and it would be quite wrong of you to reason in that way. The evidence has been put before you, as I said has been relied upon, both by the Crown and by the accused, on this question of what would have been in the mind of the accused over the weekend and the events leading up to the relevant circumstances." (T.4.11.2011 - p229.6) 49MFI 4 was subsequently tendered on 10 November 2011 through the officer-in-charge, Detective Sergeant Stephen Giles, who was the last witness in the Crown case. Consistent with the earlier indication of senior counsel on 4 November 2011 as to his position, there was no objection to its tender and it was marked Exhibit S (T.10.11.2011, p620.58). Senior counsel for the appellant asked that the statement, Exhibit S, be read to the jury. 50Exhibit S is the statement by the deceased to the police, dated 23 October 2009. Relevantly it contained the following: "4 During our three year relationship, Neal assaulted me on one occasion approximately four months ago where he punched me in the left eye. I never reported this incident to police. We have had several verbal arguments but no other assaults. 5 About 4pm on Thursday, 22nd October 2009 Neal and I went to the Pagewood Hotel for approximately 45 minutes. During this time we had consumed two schooners each of full strength beer. After the pub we went to Coles Supermarket ... where I bought some ingredients to cook dinner that evening. Neal bought a bottle of bourbon as well. 6 Between 6.30pm and 6.45pm we arrived home and I made dinner for us both. After cooking dinner I placed it on the table for Neal, however he didn't eat it. Neal was sitting in the lounge room watching TV. He became very snappy towards me and began arguing with me saying "You're going to spend all the money on drugs tonight at Kings Cross tonight". I replied "No, I'm not. It's for the car. I'm staying home tonight. The next thing I knew, Neal grabbed my wallet which was attached to a chain hooked onto my belt. The chain broke off my belt and Neal took my wallet. I said "Give me back my wallet". He said "You're not getting it back. You're not leaving the flat, you're not calling the police. I'm going to teach you something tonight. I've had enough of you. I've put twelve years into you. You don't respect me. I'm going to teach you a lesson. That's why your sister died 'cause you're both cunts and you both deserve to die. No man could put up with you". 7 The argument continued in the hallway of the unit when Neal grabbed me around the neck with a tartan tie that I was wearing around my neck. As Neal has pulled the tie I have fallen to the floor on my left side. He has then pushed me on my chest where my back hit the ground. I had difficulty breathing and was in fear of my safety. 8 Neal began to drag me by my leg into the bedroom. I can't remember if it was both legs or just one. I saw Neal grab black cable ties from the floor next to his side of bed. I have never seen these cable ties before. He then tied my hands behind me and then my feet together. The cable ties had sharp edges which were cutting into my skin. While lying on the floor I began crying in fear of my safety. I also noticed a pair of scissors with a red handle lying on the bedroom floor. He said: "Shutup, shutup. Stop your whimpering. I don't want to hear you cry. This will stop you crying." I saw Neal grab a black sock and then he took out the dentures from my mouth before pushing the sock down my throat. This restricted my breathing and I began to panic. I saw him pick up black masking tape from the ground, ripping two pieces off placing one over my mouth. I don't know what he did with the other piece. 9 Neal lent over towards me pushing his knees twice into the left side of my chest and stomach area with force. This restricted my breathing and I felt immediate pain to my chest area. As I was trying to catch my breath, Neal removed the masking tape from my face. Whilst ripping it off quickly, I felt a burning sensation to my mouth area. He removed the sock that was in my mouth which helped me breathe again. 10 Neal walked out of the room for a short time before returning to the bedroom where he fell asleep on the bed. This incident went for several hours and I think it was about 4.45am when he eventually went to sleep. 11 I lied on the ground for a while to make sure he was asleep and I could hear him snoring. I got the scissors and tried to cut the cable ties from my hands, however, this didn't seem to work so I grabbed a lighter from the bedroom floor and began to burn the cable ties. I stopped using the lighter as I was burning my wrists. As I still couldn't break the cable ties, I again used the scissors and eventually cut the tie. Once I released my hands, I then cut the cable ties from my legs. 12 I grabbed my two bags from the bedroom and walked out quietly to the lounge room where I picked up my cigarettes before leaving the unit. ... 13 About 8.50am on Friday, 23 October 2009 I attended Maroubra Police Station and spoke to a police officer where I told them what happened. As a result of the pain I am experiencing to my chest area, police contacted ambulance officers who arrived shortly after and treated me. 14 I then attended the Emergency Department of the Prince of Wales Hospital Randwick where I was treated for my injuries. Senior Constable O'Connor and Detective Smith attended the hospital where I made this statement. I gave Senior Constable O'Connor the cable ties and the tartan tie. I gave Detective Smith my house keys and signed a consent form for police to enter my premises. ..." 51When MFI 4 was tendered and became Exhibit S on 10 November 2011, no request for any additional direction was made. No complaint was made by senior counsel for the appellant concerning the adequacy of the direction given by her Honour on 4 November 2011. 52Her Honour's summing up concerning Exhibit S was in the following terms: "104 The next specific direction that I want to give you relates to the evidence of the incident on 23 October, which is a prior allegation of assault by Kirrilee Grant. In that context I simply want to remind you of the direction I gave you at the time that evidence was led. 105 The evidence of the events of 23 October 2009 is not relied upon by the Crown to prove that the accused had a tendency to reason in any particular way, or to have a particular state of mind. You mustn't use that evidence to reason that because it is alleged by Kirrilee Grant that she had previously been assaulted by the accused, that he was aggressive towards her in a particular way, that therefore he must have been aggressive towards her on the evening of 17-18 April in relation to the events of the primary charge of murder. It would be wrong for you to reason in that way, and that's because the Crown hasn't relied on that evidence in that way. The Crown is not putting to you that the events of 23 October demonstrate that the accused had a tendency to be an aggressive or violent person. It is put in a very different way and relied upon by both Crown and the accused. 106 The Crown relies on those events as providing a motive for the accused to want to be rid of Kirrilee Grant because he was due to face the assault charge the day after she died. The accused relies on those events as explaining his conduct in disposing of the body. But neither party invites you to pay any attention to that in reasoning whether the accused was a person given to behaving aggressively towards Kirrilee Grant. ..." 53Later in the summing up, her Honour revisited that issue in the following terms: "111 Looming large in the Crown's circumstantial case is the fact that the death of Kirrilee Grant occurred the day before the accused was due to face court for the hearing of a charge of assault occasioning actual bodily harm, allegedly committed against her. Both the Crown and the accused rely on that circumstance in support of their cases. There is no contest in the evidence that the accused was in fact due in court on the 19 April 2010. The Crown says, when you look at the evidence concerning that offence, you would conclude that the accused had a motive to be rid of Kirrilee Grant. And the accused says, well of course that's the way it would look, and that explains why he took the steps he took in relation to disposing of the body when faced with, on his account, her accidental death in his apartment on the evening of 17-18 April. 112 So although you must not be distracted from your primary task, which relates to the events of 18 April, the events of 23 October 2009 play an important role in both cases, both the case for the Crown and the case for the accused. Both counsel have invited you in that context to pay close attention to assessing the reliability of what Kirrilee Grant says about that night." 54In the summing up, her Honour (S/U 51-60, [113] - [155]) set out in detail the evidence on this issue and how both parties relied on it as motive. Her Honour also set out the relevant evidence as to whether the appellant believed that the deceased was actually going to attend court on 19 April and the basis for his belief that she would not attend, which was said to undermine the strength of the Crown's case as to motive (S/U 60-68, [156] - [178]). The appeal 55The appellant accepted that the evidence was tendered for a non-propensity purpose. He submitted that despite this, the form of the evidence and the details of it were so prejudicially demonstrative of a tendency to be violent that none of the directions or warnings given would have prevented the use of the evidence as showing a tendency. This submission was maintained despite the fact that at trial senior counsel for the appellant made a considered decision not only not to object to the evidence but to rely upon it in the appellant's case as to his motive. 56The submission is misconceived and should be rejected. The Crown did not rely upon the statement, Exhibit S, for tendency purposes but as providing evidence of the appellant's motive for killing the deceased. It was not disputed that Exhibit S was relevant for that purpose. Moreover, no objection was taken by senior counsel for the appellant to its tender. On the contrary senior counsel for the appellant also relied upon Exhibit S as providing an explanation for why the appellant had dismembered the deceased's body. 57It was not submitted by the appellant that senior counsel who conducted the trial was incompetent. Such a submission was expressly eschewed in the appeal. That approach was entirely proper in that the decision not to object to the tender of Exhibit S and to rely upon it in the appellant's case was a careful and considered one made by experienced senior counsel. The reasons for doing so are self-evident when one takes into account the need for the appellant to provide an explanation for the dismemberment of the deceased's body which was consistent with him not being guilty of the offence of murder. 58For the submission to be successful, this Court would have to find that the admission of Exhibit S had brought about a miscarriage of justice so that a new trial was warranted. It is not open to this Court to make such a finding, given the lack of objection on behalf of the appellant at trial and the strong and clear directions against tendency reasoning given on two occasions by the trial judge. 59The appellant submitted that a significant amount of the Crown evidence related to the alleged assault in October 2009 so that it became a central issue in the trial, rather than the murder itself. The appellant submitted that in those circumstances, the alleged assault on the deceased in October 2009 needed to be proved beyond reasonable doubt before it could form part of the Crown case. The appellant relied upon ES v R (No 1) [2010] NSWCCA 197 to support the submission. 60ES was a child sexual assault case in which the complainant's sister, K, gave evidence that she had observed the offender engaging in inappropriate sexual contact with the complainant in a bedroom. The Court held that this evidence on its face was tendency evidence and that when objection was taken on behalf of the offender to the evidence, the trial judge made no reference to either s97 or s101 of the Act. The Court rejected the evidence because of the Crown's failure to comply with s97. As such its admission constituted a miscarriage of justice. 61As can be seen, ES does not provide authority for the proposition put by the appellant. 62To the extent that there is authority on this issue, it can be found in KJS v R [2013] NSWCCA 132. The offence in that case was murder. The issue at trial was provocation. There was no issue that the offender killed his wife in their bedroom with a plumber's tool. Some time before the killing, the offender's eldest daughter had left home and accused him of sexually assaulting her over a period of five years. The offender denied the claims and his wife, the deceased, believed him and supported him. 63It was the offender's case that on the morning of the killing, he and the deceased started arguing during the course of which the deceased said that she had supported him in preference to their daughter. The offender took this to mean that the deceased no longer believed him in relation to the daughter's allegations and that in effect she was accusing him of being a paedophile. 64One of the matters raised on appeal in that matter was whether the Crown needed to establish the fact of the offender having sexually assaulted his daughter beyond reasonable doubt as part of its case. I rejected that proposition (Latham J and Barr AJ agreeing) on the basis that it was never part of the Crown case, either expressly or implicitly, that the sexual assaults had taken place. It was sufficient for the Crown case that the accusation had been made. 65That is the situation which existed in this case. It was not part of the Crown case that the deceased had in fact been assaulted in October 2009. All that the Crown needed to prove was that the deceased had made the accusation and that the matter was to be dealt with by the courts and that if the deceased gave evidence in accordance with her complaint, there was a strong likelihood of the appellant receiving a substantial gaol sentence. 66This submission by the appellant should be rejected. 67The appellant submitted that a miscarriage of justice occurred because Exhibit S contained information which went beyond that necessary to establish motive in the Crown case. In that regard, the appellant relied on the specific details of the alleged assault on 23 October 2009 and on the reference to an earlier incident in which the deceased alleged that the appellant had punched her in the eye. The appellant submitted that the specific details of the alleged assault, i.e. that the deceased was bound, gagged, tied up, threatened with death and was confronted with disturbing and abusive references to her sister's death, together with an actual assault went beyond what was necessary to establish motive and would inevitably have given rise to tendency reasoning on the part of the jury, regardless of any directions made by the trial judge. 68This submission should not be accepted. The details of the alleged assault on 23 October were relevant to motive. This was because the Crown needed to establish that if the deceased was believed in the Local Court proceedings, there was a strong likelihood that the appellant would receive a substantial gaol sentence. Accordingly, the details of the alleged assault needed to be placed before the jury for that purpose. 69The earlier incident in which the deceased alleged that she was punched in the eye by the appellant, played no part in the trial. Apart from being mentioned in the statement, nothing was said about the incident by either side in the trial. In that regard, it is trite to observe that the effect of this relatively minor incident on the jury would have been swamped by the powerful effect of the dismembering of the deceased's body and the other circumstances relating directly to her death. In any event, this incident was covered by the trial judge's direction to the jury not to engage in tendency reasoning in relation to the matters in Exhibit S. 70The appellant submitted that a miscarriage of justice had occurred because the trial judge gave no appropriate direction or warning to the jury at the time that Exhibit S was tendered and read to the jury. The appellant submitted that a warning not to engage in tendency reasoning should have been given by the judge to the jury at that time. The appellant submitted that because the judge failed to give such a direction at that critical time, there was a real risk of the jury misusing or misapplying Exhibit S. 71This submission should be rejected. In order to understand why, it is necessary to set out briefly the way in which the evidence was adduced at trial. 72The content of Exhibit S was first introduced when Senior Constable O'Connor gave her evidence on 3 November 2011. She was the officer to whom the deceased had complained and who had recorded the statement of the deceased in hospital on 23 October 2009. Once that evidence was given, the trial judge was concerned that an appropriate direction should be given to the jury as soon as possible. 73Having discussed the matter with counsel, her Honour gave the direction on the morning of 4 November at a time when the evidence was fresh in the minds of the jury members. (The full direction is set out at [48] hereof.) As can be seen, her Honour's warning against the use of that evidence as tendency evidence was comprehensive and explicit. Accordingly, when Exhibit S was formally tendered on 10 November 2011 and read to the jury, the jury were already aware of its content and had already been given an appropriate direction by the trial judge. At that time, there was no request for any additional direction by senior counsel for the appellant. As already indicated, Exhibit S was tendered without objection and it was senior counsel for the appellant who requested that it be read to the jury at that time. In those circumstances, there was no requirement for the trial judge to give any additional direction. Moreover, further clear directions against engaging in tendency reasoning in relation to Exhibit S were given during the summing up, as can be seen at [52] and [53] hereof. 74It should be noted that no complaint was made concerning the content of the directions at trial or concerning a failure to give a direction at trial. For this submission to succeed, the appellant would have to obtain leave pursuant to rule 4 of the Criminal Appeal Rules. No reason has been advanced why such leave should be given. Even if leave were given, for the reasons set out above, the submission should be rejected. 75It follows that the appellant has not made out his appeal against conviction and it should be dismissed. Application for leave to appeal against sentence 76The appellant relies upon a single ground of appeal against sentence: Ground 2: The finding by the Court that an aggravating feature of the sentence imposed for murder was the treatment of the corpse, has resulted in a sentence too severe in all the circumstances of the case. Remarks on sentence 77In her Remarks on Sentence, McCallum J noted that the maximum penalty for the offence of murder is imprisonment for life and that the offence has a standard non-parole period of 20 years. Under s61(1) of the Crimes (Sentencing Procedure) Act 1999 the imposition of a life sentence is mandated where the Court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. Her Honour was not satisfied that this offence fell within the terms of that section. Nevertheless, her Honour noted that the determination of the appropriate sentence to be imposed was guided by both the maximum penalty and the standard non-parole period. 78Having reviewed the facts, her Honour found that by the time the telephone calls were made to the NAB on 17 April, the appellant had formed the intention to kill the deceased and was forcing her to make the calls so that he would have access to her bank account after her death. 79Her Honour was not satisfied that the appellant had dismembered the deceased's body only to facilitate its removal from his unit. Her Honour said: "52 ... However it does not follow from those events that the offender had no other reason to deal with the body as he did. The object of disposing of the body may have been part of the reason for dismembering it, but other aspects of the autopsy evidence reveal a higher level of criminality. 53 Some parts of the body had been cut into pieces smaller than can sensibly be explained by the need to fit them into garbage bags. One of the deceased's feet had been cut into two pieces. Both hands had been cut off at the wrist. A little finger had been removed from one of the hands. Both nipples had been cut off, probably using a pair of scissors that were found in one of the bags. The front of the skull bore marks indicating that the face had been cut diagonally from right to left and left to right and across the midline of the skull. 54 Those acts went beyond what was required to conceal the transport of a body. I am satisfied beyond reasonable doubt that the offender's treatment of the body was in part motivated by a desire to remove evidence of injuries inflicted by him. I am further satisfied beyond reasonable doubt that to some extent at least, the offender's treatment of the body was an expression of anger and hatred towards the deceased. I do not accept that this is merely emotive speculation, as submitted on behalf of the offender. The state of the body admits of no other conclusion in my view. 55 As noted by Johnson J in R v Wilkinson (No 5) [2009] NSWSC 432 at [61], whilst care must be taken in examining events after the offence for the purpose of assessing its objective seriousness, circumstances which as a matter of common sense are directly related to the offence are properly regarded as informing that assessment. The offender's treatment of the deceased's body contributes to the overwhelming inference that he intended to kill her. 56 It was acknowledged on behalf of the offender that his treatment of the body may be taken into account in assessing the seriousness of the offence: R v Yeo [2003] NSWSC 315 at [36]; Knight v R [2006] NSWCCA 292; 164 A Crim R 126 at [28] and [29]. The offender's meticulous and disturbing dissection of his former companion into smaller parts to be dumped unceremoniously in the bush requires that the sentence be increased to some degree." 80Her Honour noted that "a further aggravating feature" of the offence was that the appellant was on conditional liberty at the time the offence was committed, having been granted bail on 30 November 2009 for the alleged assault. Her Honour concluded that the appellant's sustained denial of his guilt removed any basis for a finding of remorse. On the basis of a psychologist's report, her Honour was prepared to find that he had a schizoid and depressive personality which might have impaired his ability to experience or articulate guilt or remorse in the ordinary way. Her Honour was not prepared to find that the appellant had good prospects of rehabilitation. It was against that background that her Honour passed the sentence which she did. 81The appellant submitted that her Honour erred by taking into account his treatment of the corpse after death as a matter of aggravation. The appellant submitted that to the extent that his sentence was increased for that reason, her Honour was in error. The appellant noted that he had not been charged with an offence contrary to s81C of the Crimes Act 1900, i.e. improperly interfering with a human corpse. The appellant noted that the treatment of a corpse after death did not fall within any of the categories of aggravation in s21A(2) of the Crimes (Sentencing Procedure) Act 1999. 82The appellant submitted that his post offence conduct was given excessive weight, and accordingly his sentence should be reduced. The appellant submitted that her Honour's findings as to the dissection of the corpse were not open to her, given the advanced state of decomposition of the body, to which the forensic pathologist had referred. 83The appellant's submissions on sentence should be rejected. As is clear from her Honour's Remarks on Sentence, a concession was made on behalf of the appellant "that his treatment of the body may be taken into account in assessing the seriousness of the offence". It is not open to the appellant to resile from that concession in this appeal. 84The point of distinction which the appellant sought to draw between the treatment of the deceased's corpse after death being a matter of aggravation rather than going to the seriousness of the offence, is a distinction without a difference. Whether it be regarded as an aggravating feature or as a matter going to the seriousness of the offence, it was open to the trial judge to take that matter into account as a factor tending towards an increase in the sentence. This is clear from the cases referred to by her Honour in her Remarks on Sentence. 85In R v Yeo, the offender having shot the deceased, severed his head from his body. The severed head and trunk, which may have been further dismembered, were removed from a home unit and disposed of. In his Remarks on Sentence in that matter, James J said: "36 Similar submissions to the submissions which have been put to me in these proceedings on sentence were also put to Grove J in the proceedings on sentence after the first trial. In his remarks on sentence Grove J said that the dismemberment of the body and the disposal of the parts of the victim's body, although not ingredients of the crime of murder, were "pertinent to the overall assessment of its seriousness". I agree with his Honour that this conduct by Ms Yeo, which I have found occurred, can be taken into account in assessing the seriousness of the offence committed by Ms Yeo. See the decision of the Victorian Court of Appeal in R v England (1999) 106 A Crim R 99 at 103 to 109." 86In Regina v Knight the offender had immediately after the murder meticulously skinned the corpse, dissected the body, arranged the remains in a contemptuous way, cooked the head and other parts and then prepared them in a meal for the deceased's children. 87In an appeal to this Court by the offender, McClellan CJ at CL (with whom Latham J and Adams J agreed) said: "28 The applicant submitted that her mutilation of the deceased's body following his death was not relevant to the objective seriousness of the offence. In my opinion this submission must be rejected. As this Court said in R v Yeo (2003) NSWSC 315 at [36] the offender's treatment of the deceased's body can be taken into account in assessing the seriousness of the offence (see also R v Garforth unreported, NSWCCA, 23 May 1994; DPP v England (1997) 186 A Crim R 99). 29 This was a violent and cruel crime during which the deceased must have suffered extreme trauma. He was stabbed numerous times. The violation of his body reveals an utter contempt for the deceased and for his children." 88In the same case, Adams J said: "64 I have already expressed my view about the culpability involved in the murder committed by the applicant. Although at first I was minded to think that too much had been made of her subsequent dealings with Mr Price's body, I have concluded, on reflection, that so extreme was this conduct and so closely linked in time and place was it with the killing that it must be regarded as an integral part of the killing itself. It demonstrates the extraordinary extent of the applicant's brutality and, perhaps of greater significance, her lack of what we might recognize as humane feelings, which were, I think, completely buried in unreasoning and irrational hatred for her victim." 89As the decisions in Yeo and Knight make clear, the concession made on behalf of the appellant in the sentence proceedings, was appropriate. As a matter of fact, and for the reasons identified by Adams J in Knight, the trial judge was entitled to regard the appellant's treatment of the corpse as an integral part of the killing itself. As such, her Honour did not err in finding that this consideration impacted on the seriousness of the offending. 90Implicit in the appellant's submission that her Honour gave too much weight to this consideration is an acceptance that her Honour's assessment involved an exercise of discretion with which this Court has always been reluctant to interfere. In R v Baker [2000] NSWCCA 85 at [11] Spigelman CJ (with whom Grove and Hidden JJ agreed) said: "Questions of weight in the exercise of a discretion are matters for the first instance judge." 91There have been many statements to similar effect in subsequent cases: Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57]; Yang v R [2012] NSWCCA 49; 219 A Crim R 550 at [25]; Gebara v R [2012] NSWCCA 107 at [16]. 92There is no substance in the challenge to the trial judge's factual finding concerning the extent of the dismemberment as a result of the body's decomposition. The matters particularly referred to by her Honour were identified by the forensic pathologist in his evidence without qualification. Not only were these findings of fact open to her Honour, there was no evidence to the contrary. 93This ground of appeal has not been made out. 94The orders which I propose are as follows: (1) In relation to the conviction appeal, the appeal should be dismissed. (2) In relation to the application for leave to appeal against sentence, I would grant leave to appeal but dismiss the appeal. 95LATHAM J: I agree with Hoeben CJ at CL, both as to the orders he proposes and the reasons for them. I wish to add some comments with respect to the conduct of this appeal by counsel. 96As Hoeben CJ at CL has noted, the appellant was represented at trial by very experienced senior counsel. If I may be permitted to observe, that senior counsel appears regularly in Supreme Court murder trials. His experience is complemented by a thorough appreciation of the criminal law and the law of evidence in particular. 97It is against that background that the grounds of appeal and the application of Rule 4 to those grounds must be appreciated. In ARS v R [2011] NSWCCA 266, the Chief Justice summarised Rule 4 :- "147 The effect of the rule was summarised by McHugh J in Papakosmas v R [1999] HCA 37; (1999) 196 CLR 297 as follows (at [72]): "There is no case for the grant of leave under r 4 unless the Court of Criminal Appeal is satisfied that the appellant has an arguable case that the trial judge has made an error of law or is satisfied that the appellant's conviction is otherwise a miscarriage of justice. Satisfying the Court that there is an arguable case is extremely difficult where the appellant has failed to object to evidence or failed to ask for a direction concerning evidence. In such cases, the trial judge has made no error of law because he or she has not been asked for a ruling. Consequently, an appeal can only succeed if the Court of Criminal Appeal is satisfied that the admission of evidence or the failure to give the direction has caused a miscarriage of justice, proof of which lies on the appellant. Where the evidence was admissible, but the trial judge had a discretion to limit its use, the burden on the appellant is greater: the appeal can succeed only if the Court of Criminal Appeal is satisfied that the discretion would have been exercised in favour of the appellant and that, if it had, it is more likely than not that the appellant would have been acquitted ... " 148 Subsequent cases have established that the following matters are important in considering the operation of r 4: The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61]. An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]." 98Hulme J re-visited this summary in FP v R [2012] NSWCCA 182 (McClellan CJ at CL and Schmidt J agreeing). 99The failure of senior counsel at trial to object to the reference to the victim being punched in the eye by the appellant, and his failure to seek yet another direction warning the jury against tendency reasoning at the time that he suggested that the statement be read to the jury, are archetypal examples of forensic decisions taken in the atmosphere of the trial, which occasioned no injustice to the appellant. 100This was, in my view, a completely unmeritorious appeal. Unfortunately, the maintenance of such appeals in this jurisdiction inevitably delays the listing of other conviction appeals with real prospects of success. 101BEECH-JONES J: I agree with the judgment of Hoeben CJ at CL and the orders his Honour proposes. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 September 2013