Supreme Court New South Wales Medium Neutral Citation: R v Paterson (No 4) [2014] NSWSC 162 Hearing dates: 27 February 2014 Decision date: 03 March 2014 Before: Bellew J Decision: I direct a verdict of not guilty in respect of the offences of murder (in count 1), the alternative offence of manslaughter, the offence of aggravated sexual assault (count 2), and the statutory alternative to that count. Catchwords: CRIMINAL LAW - trial - application for directed verdicts - accused charged with murder and aggravated sexual assault - whether the evidence capable of establishing the elements of each offence - test to be applied at the close of the Crown case EVIDENCE - LIES BY ACCUSED - statements made by accused alleged by the Crown to be lies evidencing a consciousness of guilt - statements relied upon as part of the Crown's circumstantial case - whether relevant test met Cases Cited: Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 Doney v R (1990) 171 CLR 207 Edwards v R (1993) 178 CLR 193 R v Bilick and Starke (1984) 36 SASR 321; (1984) 11 A Crim R 452 R v Heyde (1990) 20 NSWLR 234 R v Hillier (2007) 228 CLR 618 R v JMR (1991) 57 A Crim R 39 R v Lane (No. 13) [2010] NSWSC 1540 R v Lane [2011] NSWCCA 157 R v Lodhi [2006] NSWSC 672 R v Paterson [2014] NSWSC 29 Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 Category: Principal judgment Parties: Regina - Crown Rodney Paterson - Accused Representation: Counsel: Mr K McKay - Crown Mr J Stratton SC and Ms B O'Reilly - Accused Solicitors: Solicitor for Public Prosecutions (NSW) - Crown Peter Murphy - Accused File Number(s): 2011/248808 Publication restriction: Nil Judgment INTRODUCTION 1On 10 February 2014 Rodney Paterson ("the accused") pleaded not guilty to an indictment alleging the following: (i)that he did, on or about 1 February 1992, at Bundeena in the State of New South Wales, murder Pia Navida; (ii)that he did, on or about 1 February 1992, at Bundeena in the State of New South Wales, have sexual intercourse with Pia Navida without her consent, knowing that she was not consenting, in circumstances of aggravation, namely that he was in the company of Steve Isac Matthews. 2The accused was originally jointly indicted with Steve Isac Matthews ("Matthews"). On 3 February 2014, Matthews pleaded guilty to the murder of Pia Navida ("the deceased"). A count of aggravated sexual assault was contained in a Form 1. 3At the close of the Crown case on Thursday 27 February 2014, senior counsel for the accused made an application that I direct verdicts of not guilty in respect of both counts in the indictment, along with the statutory alternative to count 1. That application was opposed by the Crown. Having heard submissions from both parties I adjourned the matter until Monday 3 March 2014 in order to deliver judgment. AN OVERVIEW OF THE CROWN CASE 4A summary of the Crown case is set out in an earlier interlocutory judgment I gave in these proceedings (see R v Paterson (No 1) [2014] NSWSC 29). However, it is appropriate that I set out parts of that summary in order to properly put the present application in context, before proceeding to consider some of the evidence. 5In the late morning of 1 February 1992 the naked body of a female, later identified as the deceased, was found in the Royal National Park. It was subsequently determined that the deceased's death had been caused by head injuries suffered as a consequence of being struck with a rock which was found near her body. The deceased had last been seen alive on the previous day, 31 January 1992. 6Various swabs were taken from the deceased's body at the scene, as well as at a post mortem examination conducted on 2 February 1992. These included swabs from her vagina and rectum. Samples of her fingernails were also taken. Initial analyses of the vaginal and rectal swabs indicated the presence of semen. 7Police investigations established that the deceased was a Filipina who had lived a nomadic lifestyle over the preceding 13 months. She earned a limited income from prostitution and was in the habit of frequenting a café in Surry Hills known as "Greasies", from where she would periodically purchase drugs. 8It is the Crown case that notwithstanding the evidence of the deceased having worked as a prostitute, she was not at the Royal National Park as a result of any agreement to provide sexual services to a client. Rather, the Crown case is that the deceased's murder was sexually motivated, and involved her being driven to the Royal National Park, sexually assaulted, and then killed. 9In 2006 technological advances in DNA analysis saw further testing of the swabs taken from the deceased. DNA consistent with that of Matthews was identified as a result of that testing. 10Further testing was carried out in 2011 which identified Matthews' DNA on the vaginal swab taken from the deceased. That testing also identified the accused's DNA on swabs taken from the deceased's rectum and right breast, as well as on the deceased's fingernails. That same testing also identified the presence of the DNA of another male, referred to as "unknown male A", on the swab taken from the deceased's rectum. DNA from at least three individuals was also identified on other items, including a string of beads which had been found on the deceased's naked body. 11The accused was first interviewed by police on 10 August 2009. He told police on that occasion that he did not recognise photographs of the deceased or Matthews. He agreed that he was in the habit of frequenting Greasies Café and also admitted that he had travelled to Queensland with Matthews and another male in early 1992, shortly after the deceased's murder. 12The accused was interviewed for a second time on 2 August 2011. In light of later statements made by the accused in recorded telephone conversations, the Crown alleges that a number of answers given by the accused to questions asked of him in each of the two interviews constitute lies which amount to evidence of a consciousness of guilt. THE CROWN PROSECUTOR'S OPENING ADDRESS 13In his opening address to the jury, the Crown Prosecutor put the Crown case on the count of murder in the following terms (commencing at T 81 line 42): "In relation to murder, murder can be established if someone does an act or participates in an act where they have an intention to kill, which you might think would seem obvious, or an intention to inflict really serious bodily harm. The Crown in this case anticipates the evidence will be that the Crown case being that the accused participated either by helping in restraining the deceased when she was struck, the blow that killed her or blows, or that he participated in striking himself the deceased. If you do find then you would draw from that, the Crown says, that he shared an intention with those other persons to kill or to at least inflict really serious harm to Pia Navida (my emphasis)." 14The Crown case in respect of the count of aggravated sexual assault was put in the following terms (commencing at T 82 line 3): "In relation to count 2, it will be the Crown case and the Crown will put to you that you will draw from the circumstances the facts that you find, the circumstance that you find, that at the time shortly before the death of Pia Navida the accused had sexual intercourse with Pia Navida without her consent, that he knew she was not consenting and in circumstances of aggravation, namely being in the company of Steve Matthews and it is the case, the evidence you will hear the Crown anticipates and will be submitting to you at the end, that there was not only Steve Matthews but another person, a male, who at this stage has not been identified." 15The Crown went on to say (commencing at T 82 line 23): "It will be the Crown case that you can draw that inference that this was a case where she struggled and was being detained and held by persons whilst sexual intercourse took place, which involved the three people, the accused, Matthews and the unidentified male, that in such circumstances if you so find that having sexual intercourse while she was being restrained and the Crown will submit, draw an inference, that she struggled and fought back, that the accused knew she was not consenting and that it took place in the company of the persons he was with." THE EVIDENCE 16Although it is not necessary for me to set out the entirety of the evidence adduced by the Crown, there are parts of that evidence which are particularly relevant to the present application and to which I must refer. The discovery of the deceased's body 17At about 11.50 am on Saturday 1 February 1992 Joseph Cassidy and his then girlfriend Nicole Lamaro were on a camping trip in the Royal National Park. Whilst Mr Cassidy was walking along what has been described as a fire trail located approximately 5 kms northwest of the township of Bundeena, he noticed what he described as the contents of a handbag, along with various other items, strewn across the ground. Mr Cassidy gave evidence that as he walked further along the fire trail he saw what he described as "a pair of women's panties". Having observed blood on a rock as he continued to walk along the trail, he saw what he described as "drag marks". He followed those marks off the track into an area of bushland, and came upon the naked body of a female, later identified as the deceased. A glass beaded necklace was around her left hand. 18There is evidence that during the period of time leading up to her death, the deceased had worked from time to time as a prostitute. She frequented particular areas in the Sydney CBD including a hotel in Pitt Street where she lived from time to time, as well as Greasies Café which was located near Central Railway Station. There is also evidence that she was a drug user at the time. 19The deceased's body was lying in a position east of Bundeena Drive. The trail along which Mr Cassidy was walking runs generally to the south east of Bundeena Drive. Its entrance is located approximately 4 kms from the township of Bundeena. Further south east of where the deceased was found is an area known as Marley Lagoon. To the north west of where the deceased was found is an area known as Winifred Falls (see T 102 line 47 and Exh. H). 20At the time of making his statement to the police in 1992, Mr Cassidy said that he saw two pairs of women's pants, one in the vicinity of the items he described as coming from a handbag, and another further along the trail. Although Mr Cassidy was present when the police later arrived, he did not direct their attention to the two sets of pants as he was no longer permitted to be within the area, it having by that time been designated as a crime scene. 21John Rowan, who was then a Detective Senior Constable of Police attached to the Crime Scene Unit, arrived at the Royal National Park at approximately 1:30 pm on the afternoon of 1 February 1992. Having walked for approximately 50 metres along the trail from its entrance at Bundeena Drive he observed, and later seized, a number of items, one of which he described as a "pair of pink panties" which are depicted in a photograph taken at the scene (Exh. D2, photograph 5). I have noted previously that Mr Cassidy had told police he observed two pairs of women's underpants. However, Mr Rowan photographed and seized only one pair. 22Evidence was given by Professor Duflou (at T 531 line 47) that the deceased had died "during the night of 31 January 1992 to 1 February 1992". In these circumstances, the Crown called evidence from a number of persons who had been in the Royal National Park during the previous evening. 23Anthony Bracewell, who was camping with his then girlfriend Sally Rooney in the area of Winifred Falls, gave evidence (commencing at T 130 line 46) that he had heard a scream at around 8 pm on the evening of 31 January 1992. At that time he was at his campsite at Winifred Falls and he described the scream as sounding like that of a male. When asked about the direction from which the scream had come, Mr Bracewell said that it was from a direction further north of Winifred Falls. Bearing in mind the map of the relevant part of the Royal National Park (Exh. H) Winifred Falls is several thousand metres to the north west of the area in which the deceased was found. A scream heard from a direction further north of Winifred Falls would place it as emanating from a direction opposite to that in which the deceased's body was located. 24Ms Rooney, whose statement was read to the jury by consent (commencing at T 394 line 5), described the scream as coming from a female. She put the time as being about 5:00pm or 6:00pm on the afternoon of 31 January 1992. 25Jason Smith gave evidence (commencing at T 429 line 1) that at about 10.00 pm on the evening of 31 January 1992 he was walking along a trail towards Marley Beach for the purposes of attending a party in that area. He said he heard a scream which he thought was from a female and formed the impression that it came from an area he described as being "further on down the track" (at T 429 line 16). The trail along which Mr Smith had been walking was 500 to 600 metres to the north east of where the deceased was found (at T 430 line 3 to line 10; Exh. V). A scream heard from a direction further along that track would place it as emanating from the area in front of that to which he was walking. The position in which the deceased was found was in fact behind Mr Smith at the point where he heard the scream. 26Darren Adams, who was with Mr Smith, also gave evidence (commencing at T 119 line 5) of hearing a female scream. He put the position at which he heard it further towards Marley Beach (i.e. further to the south east) than the position nominated by Mr Smith (Exh. E). He thought the scream had come from the opposite direction (i.e. back in the direction of the area in which the deceased's body was located) and he put the time at which he heard the scream at about midnight. The evidence of Professor Duflou 27Professor Johan Duflou, a Forensic Pathologist, attended the scene on 1 February 1992. As I have already noted, he formed the view that the deceased's death had occurred "on the night of 31 January to 1 February 1992". There was what he described (commencing at T 531 line 45) as an "inherent uncertainty" in determining the time of death with any greater precision. 28Professor Duflou conducted a post mortem examination on the following day, 2 February 1992. He gave extensive evidence (commencing at T (commencing at T 532 line 35) of the deceased's injuries which included: (i)a laceration to the area behind the deceased's ear which he thought was typical of a laceration caused by impact with a blunt object; (ii)extensive abrasions and grazing of the entire forehead; (iii)smaller abrasions on the surface of the head itself; (iv)multiple linear abrasions or grazes over the top of the deceased's right shoulder, the back of her trunk and her hip, consistent with the deceased having been dragged over a rough surface by the arms; (v)a fracture to the base of the skull, consistent with an impact to the front of the deceased's head; (vi)a fracture of the top of the skull, consistent with impact with a large heavy object; and (vii)a fracture of the sixth left rib. 29He concluded that the direct cause of the deceased's death were the head injuries. 30Professor Duflou agreed (commencing at T 540 line 43) that leaving aside the head injuries, the remainder of the injuries were "relatively minor". He said that "there was very little injury to indicate that a struggle had taken place", and that "if there was a struggle it was a minimal struggle only". He also agreed that the injuries found to have been sustained by the deceased (apart from the rib injury) were consistent with her having been struck with a single blow and dragged through the bush. 31Professor Duflou also gave evidence (commencing at T 541 line 30) that he found no external injury, and no injury to the deceased's vagina or anus suggestive of forced sexual intercourse having taken place. He also said (at T 544 line 12) that he could not exclude the possibility that the deceased had died on the afternoon of 31 January 1992. Evidence of other items found near the scene 32On the afternoon of 1 February 1992, various items were found and seized in and around the area of where the deceased's body was located. I have already made reference to the pink underpants and it is not necessary, for present purposes, to set out the other items which were found. It is sufficient to note that generally speaking, they were of a kind which might be found in a woman's handbag. 33On 7 February 1992 Superintendent Tuck found a number of items of clothing on a trail located on the eastern side of Bundeena Drive. One of those items was a white blouse (Exh. G, photograph 23 and Exh. L) which Superintendent Tuck described as "quite transparent" and "quite thin" (at T 154 line 39-40). In a statement made at the time of finding the blouse he made no reference to it being torn or ripped (at T 155 line 8 - 15). The photograph in Exh. G shows that the blouse was of apparently sheer material and apart from a small tear in the lower seam, it appears otherwise intact. 34The Crown called Wayne Taylor, who was the deceased's partner in the period leading up to her death. Having been shown a photograph of the blouse (Exh. L) Mr Taylor said (at T 231 line 33) that it was "an item of clothing that (the deceased) would wear...". Statements made by the accused 35Evidence was called in the Crown case from Fiona Innis, a Psychologist employed by the Department of Corrective Services, who gave evidence (commencing at T 440 line 18) that on 3 August 2011 she spoke with the accused for the purposes of conducting a "screening interview" in circumstances where he had recently been taken into custody at the Bathurst Correctional Centre. Ms Innis gave evidence (at T 441 line 15) that in the course of her interview the accused said: "I'm going to get him." 36When Ms Innis asked to whom he was referring, the accused said: "My coee." 37When she asked the accused how he would feel if came across his co-accused he responded: "He would be black and blue and coming out with a third person's name". 38The Crown also called Rodney Fagg, a Correctional Officer, who gave evidence (commencing at T 444 line 40) that whilst on duty at the Bathurst Correctional Centre in August 2011 he overheard the accused (in a telephone conversation with his partner) say words to the effect: "I'd really like to get him really bad." 39Mr Fagg inferred that accused's reference to "him" was a reference to Matthews. As a consequence, he issued an alert within the gaol system precluding any association between the accused and Matthews. 40Further, in a conversation on 16 September 2011 (Exh. AX 1) the accused was recorded as saying: "When the psych spoke to me, she said 'what's going to happen when you run into your coee'. Well, two things, he's gunna be black and blue and he'll be comin out with a third person's name, 'cause I ain't comin out with it...But yeah, because I said that I'd get get the third name out of him, yeah, ok, well we're not going to let you near him." 41In another recorded conversation on 27 October 2011 (Exh. BA 1) the accused was recorded as saying: "'Cause like I said they still haven't found the third person which is the actual second person in the fuckin' blue." The toxicology evidence 42William Allender, a Forensic Scientist specialising in toxicology, gave evidence (commencing at T 346 line 18) that: (i)a blood sample taken from the deceased at the time of post mortem examination was found to contain1.0 milligrams per litre of methamphetamine and 0.15 milligrams per litre of pseudoephedrine; (ii)a liver sample taken at the same time was found to have 0.23 milligrams per litre of methamphetamine; (iii)a stomach sample was found to have 0.23 milligrams per litre of methamphetamine and 0.07 milligrams of pseudoephedrine; and (iv)a urine sample was found to contain 13 milligrams per litre of methamphetamine, 7.3 milligrams per litre of pseudoephedrine, and traces of cannabinoids. 43Mr Allender agreed when cross-examined (at T 352 line 11) that the level of methamphetamine found in the deceased's blood was a very high one. He also agreed (at T 352 line 14-25) that methamphetamine increases aggressive and risk taking behaviours and that the therapeutic range for methamphetamine was between 0.01 and 0.05 milligrams per litre. The DNA evidence 44The various items found in and around the area in which the deceased's body was found, along with the various swabs taken from her, were the subject of forensic testing, as were the fingernail clippings. The evidence of the results of that testing was given by two witnesses called by the Crown, Sharon Neville and David Bruce. 45Ms Neville gave evidence (commencing at T 569 line 15) that in February 1992 she received a number of items for analysis. For present purposes it is relevant that Ms Neville detected: (i)no traces of semen on the pink underpants found at the scene; (ii)semen on a rectal swab; and (iii)semen on a vaginal swab. 46Ms Neville said (commencing at T 574 line 1) that in April 2006 she was provided with a buccal swab which had been obtained from Matthews, following which she conducted DNA testing on a number of items. She gave evidence (commencing at T 574 line 35) that: (i)mixtures of DNA originating from more than one individual were recovered from one of the rectal swabs; (ii)Matthews had the same DNA profile as the major component of DNA in each of those mixtures; (iii)DNA testing on the vaginal swabs was unsuccessful; and (iv)the pink underpants found at the scene were not further examined at that time. 47Ms Neville explained (at T 576 line 27- T 577 line 4) that the fact that no semen was detected on the pink underpants did not exclude its possible presence. She also gave evidence (commencing at T 577 line 39) concerning the examination of the white blouse found by Superintendent Tuck on 7 February 1992. She agreed that the only reference in her notes to any damage to that item was to a tear in the lower right hand seam. She also confirmed (at T 579 line 29 - 31) that there was nothing contained in the description of that item recorded at the time which suggested any further physical damage to it. 48Mr Bruce, an analyst from the New South Wales Forensic and Analytical Science Service, gave evidence of the results of DNA testing which he carried out on various items. To the extent which is relevant for present purposes, his evidence (commencing at T 599 line 7) may be summarised as follows: (i)DNA testing on the pink underpants was unsuccessful; (ii)DNA testing on a rectal swab collected at the crime scene disclosed a mixture originating from three individuals. Of those three individuals, the DNA matched the profile of Matthews, a component of the mixture matched the accused and another component of the mixture matched that of an unknown male individual; (iii)DNA testing of the vaginal swab disclosed a profile consistent with that of Matthews; (iv)DNA testing of a rectal swab collected at the time of post mortem disclosed a mixture of DNA originating from three individuals, Matthews being a major contributor, and each of the unknown male and the accused being minor contributors; (v)further DNA testing on the rectal swab in (iv) confirmed that the DNA recovered matched the profiles of the accused, Matthews and the unknown male; (vi)DNA testing of a number of fingernail clippings taken at the time of post-mortem recovered a mixture from at least three male individuals, one of whom was the accused; (vii)DNA testing of parts of a long length of beads found on the deceased recovered a mixture of at least three male individuals consistent with Matthews, the accused and the unknown male; (viii)DNA testing of the right front breast of the deceased recovered a partial DNA profile which matched that of the accused. 49Mr Bruce confirmed (commencing at T 622 line 45) that the conclusion from the screening test conducted on the pink underpants in 1992 was that no semen was detected. He said that he undertook a further test of that item in 2011 and said (commencing at T 637 line 5) that the conclusion from that test was that there were faint fluorescent stains detected which were consistent with semen. When it was suggested to him (at T 638 line 32) that he could not rule out the possibility that there was semen on the underpants he answered: "That would not be consistent with the original screening test for semen that was done on the panties in 1992. I, from my testing cannot rule out the presence of semen, but the previous testing has said that it was negative and therefore they didn't detect semen on the panties. " 50In addition to his evidence of DNA testing, Mr Bruce told the court that he had also been asked to express an opinion about the period which was likely to have elapsed between the time at which sexual intercourse had taken place, and the time of the deceased's death. In this regard he said (commencing at T 624 line 26): "The estimation of time since intercourse involves looking at data on how many spermatozoa on visible on slides made from samples taken from that area. Basically the more spermatozoa that are present the shorter the time since intercourse interval would be. The other indicator when complete spermatozoa are seen and what I mean by that spermatozoa with tails that also is an indicator that the semen has been deposited more recently. Again this is an estimation. The main factors involved with the removal of semen deposited in the anal cavity would be biological functions such as defecation, degradation of the sperm. It's an area where the bowel area has cellular material that actually removes foreign material from that area. And the other thing is just drainage by gravity and by activity of the person. So those factors Q. just activity, can that include walking around in your daily life? A. Yes, that's correct, yes. So from that information and also from information that was available in the literature with regard to time since intercourse and since anal intercourse, and also after looking at a considerable number of cases from our own laboratory and what sort of results we obtained, I came to the opinion that the time since intercourse would certainly have been within a 48 hour period as a conservative estimate and most likely within a 24hour period. " 51Mr Bruce then said, in clarification of his earlier evidence (commencing at T 625 line 35): "I think I may have confused the issue inadvertently. What we're looking for, the time since intercourse interval applies to the interval between the deposition of the semen and death in this particular, in these types of instances and not deposition of semen in collection of the samples, which occurred, would have occurred after death. Sorry just to Q. So when you give a 48 and 24 hours period, are you saying the deposition is almost certainly within a 48-hour period of death? A. That's correct. Q. Is that what you are saying, and most likely within a 24 hour period of death? A. That's correct, based on the information that we had from the slides and also from information from peer review journals and also from our laboratory." The evidence of the accused's appearance 52Exh. AG 2 is a photograph of the accused tendered by the Crown. It was taken on 27 December 1991 (T 593 line 8 - 10), that is a little less than one month before the deceased's murder. 53Exh. AG 1 is another photograph of the accused which was taken on 13 March 1992 (T 592 line 48 - 50), approximately 6 weeks after the deceased's murder, and at a time when the accused was with Matthews and another person in Queensland. 54Other than the fact that the accused has his eyes closed in Exh. AG 1, his facial appearance is otherwise identical to that in Exh. AG 2. The only real difference in his appearance is that his hair in Exh. AG 1 is obviously shorter than it was in the other photograph taken some months before. Statements of the accused said to be lies 55The Crown asserts that a number of statements made by the accused when interviewed by police are capable of being construed as lies which amount to evidence of a consciousness of guilt. The Crown relies upon this evidence as part of its circumstantial case against the accused. Statements in the first interview 56The first occasion on which the accused was interviewed by the police was on 10 August 2009. 57In the course of that interview, he was shown a photograph of the deceased and at Q177 - Q181 the following is recorded: Q177 No, unfortunately, that's the best image I could find. A This is a bit harder, 'cause there weren't too many girls. Q178 I don't think this person stayed at Foster House, 'cause there weren't women that stayed there, that was a men's refuge. A Yeah, no, yeah Q179 But I believe -- A But there were sheilas friends down there. Q180 But I believe she may have attended Greasies Café fairly regularly and was around that area at the time. A Maybe, 'cause there was a couple of sheilas there at Greasies. Mark went out with one of them, Zimbabwean Mark. Q181 Does that face look familiar at all? A I'm trying to think. Maybe, I'm not sure. 'Cause like I said before, I can't even think of that guy that I bought that Valiant off down there. But I can't remember him, do you know what I mean? 58Subsequently, reference was made to Wayne Taylor, the deceased's boyfriend, and the following ensued: Q300 And both he and Pia Navida regularly frequented Greasies Café. A Mmm, so I probably sold to them or I would have seen them if they were there. Q301 Yeah, but you weren't quite sure whether you recognised Pia? A Yeah, I'm not positive if I recognised her face or not. I don't know, I've seen a couple of heads like that up around The Cross and that, so I'm not sure if it's the same one. Statements in the second interview 59The second occasion on which the accused was interviewed by the police was on 2 August 2011. 60The questions asked included the following: Q274 (Shown photo of Pia Navida) Do you recognise the person within this photograph? A Not off hand, but from what the ... was, that's the girl that was killed. .... Q279 Have you seen this person before? A I can't say I have. I, I don't know. I can't say whether I have or I haven't. ... Q284 What does that mean? A Well if she was anywhere down near Foster House or Greasies then, yeah, more than likely I would have seen her. Q285 What makes you say that? A Because I was always there. ... Q394 OK, can you explain to me how your DNA came to be on Pia Navida's body? A No. Oh, no. Q395 Now the DNA -- A Like I said, not unless I met her down there near Greasies. I don't know. Q396 OK. A Other than that, no. Q397 All right. Now the DNA that I'm talking about was located under one of her fingernails. Can you explain to me how your DNA would come to be under her fingernail? A Not really, no, no. Sorry, I can't. ... Q418 Is there any reason why your DNA would be in Pia Navida's rectal cavity? A Not that I know of, no. ... Q 488 I'll show you another photograph. The photograph that I am showing you, do you recognise the tattoo that's depicted in that photograph? A No, no. Q489 No. I'll tell you, that that photo, that, that tattoo was on the right shoulder of Pia Navida's right shoulder. Is there anything you can tell me about that? A Not offhand. Q490 Are you happy to sign that photograph? A No. Like I said before, the only way I would have known her would have been through Greasies, selling the gear. Other than that, no. Q491 I'll show you another photograph depicting tattoos. A Yeah. Q492 Is there anything that you can tell me about these tattoos? A No. Q493 Have you ever seen those tattoos before? A No. Not that I remember, no. 61On 17 January 2012, a conversation between the accused and his partner was recorded (Exh. BB 1) in the course of which the following was said: "KT How long were you with her? ACC Over about six weeks. She kept comin' around to the corner when I was drinkin' with Lucy and that, I met her through Tracey, that other broad. Probably I slept with her probably 10 times over a six week period". 62In a conversation which took place the following day, 18 January 2012, the accused was recorded as saying (Exh. BC 1): ".... I mean the only thing that looks bad Kell is I didn't say nothin' to the coppers about being with her, do you know what I mean, but at that stage I didn't really wanna bring myself into it. ..." 63The accused then said: "Well, fuck that, it was a 50/50 chance if me fuckin' DNA was gunna come up or not. Whether or not it was the same day that I was last with her or not, but now I'm thinkin' that fuckin' like, I've been trying to think for the last, like, couple of months but I'm thinkin', yeah, it's the last time I was with her when I left her asleep in the back of the panel van". 64The Crown asserts that the various statements made by the accused to the police when interviewed regarding (inter alia) his lack of knowledge of the deceased are, in light of his subsequent statements when speaking with his partner, lies which evidence a consciousness of guilt. THE ELEMENTS OF THE OFFENCES 65The elements of the offence of murder are as follows: (a)that the deceased died on or about 1 February 1992 at Bundeena in the State of New South Wales; (b)that the accused did an act causing the death of the deceased; and (c)that the act of the accused causing the death of the deceased was done by the accused either: (i)with the intent to kill the deceased; or (ii)with the intent to inflict grievous bodily harm upon the deceased. 66The elements of the alternative offence of manslaughter are as follows: (a)that the deceased died on or about 1 February 1992 at Bundeena in the State of New South Wales; (b)that the accused did an act causing the death of the deceased; (c)that the act of the accused causing the death of the deceased was both unlawful and dangerous. 67The elements of the offence aggravated sexual assault are as follows: (a)that the accused had sexual intercourse with the deceased on or about 1 February 1992 at Bundeena in the State of New South Wales; (b)that the accused had such sexual intercourse with the deceased without her consent; and (c)that the accused knew at the time the sexual intercourse took place that the accused did not consent; and (d)that the accused was in the company of Matthews at the time. THE SUBMISSIONS OF THE PARTIES 68Senior counsel for the accused commenced his submissions by making reference to the terms of the Crown Prosecutor's opening address to the jury. He emphasised that the Crown had asserted that the accused was present at the Royal National Park at the time of the deceased's death and that he was a participant in the physical attack upon the deceased, either by striking her or by restraining her whilst some other person(s) struck her. Against that background, senior counsel put the present application on two bases, namely: (i)that the evidence was incapable of placing the accused at the Royal National Park at the relevant time; (ii)that, in any event, there was no evidence capable of satisfying the jury, either that it was an act of the accused which caused the death of the deceased (count 1) or that he had engaged in forced sexual intercourse in company (count 2). 69As to the first basis, senior counsel submitted that taken at its highest, the evidence established nothing more than the fact that the accused had engaged in sexual intercourse with the deceased at some time during the 48 hour period prior to her death. This, he submitted, was not sufficient to place the accused at the scene of the murder at the relevant time. 70As to the second basis, senior counsel submitted that even if I were to come to the view that the evidence was capable of establishing that the accused was present at the Royal National Park at the material time, there was no evidence which was capable of establishing one or more of the remaining elements of each offence. 71As to the count of murder, senior counsel accepted that there was obviously evidence which was capable of satisfying the jury that the deceased had been killed as a consequence of being struck with the rock which was found near her body. However, he submitted that there was simply no evidence at all which was capable of supporting a conclusion that it was the act of the accused which caused the deceased's death, in either of the ways outlined by the Crown Prosecutor in his opening. 72As to count 2, and although he accepted that there was evidence that sexual intercourse had taken place between the accused and the deceased at some point in the 48 hour period leading up to the deceased's death, senior counsel for the accused submitted that there was no evidence capable of establishing that such sexual intercourse took place: (i)without the consent of the deceased; or (ii)in company. 73As to the first of those matters, and in circumstances where the Crown case was opened on the basis that the deceased had not consented to the sexual intercourse, and had struggled with and fought off her attackers, senior counsel placed particular reliance upon the evidence of Professor Duflou. He submitted that there was an absence of any objective evidence which was consistent with any struggle having occurred. 74As to the second of those matters, senior counsel submitted that the evidence was capable of establishing nothing more than the fact that sexual intercourse had taken place between the deceased and three different males at some point in time. There was, he submitted, no evidence at all which was capable of establishing that it was committed in company. 75As to the Crown's use of lies, senior counsel for the accused stressed the necessity for a cautious approach to be taken to that issue. In short, he submitted that a proper analysis of the statements made by the accused supported the conclusion that the relevant test was not met. 76Having stressed the need to consider the evidence as a whole, the Crown Prosecutor set out a number of circumstances upon which he relied to sustain the inferences necessary to establish the elements of each offence. These included the following: (i)the deceased was found in a remote location, concealed from the roadway; (ii)the location was a significant distance from the area in which the deceased lived and which she frequented; (iii)the location was also a significant distance from the area in which the accused lived and frequented; (iv)the deceased's body was entirely naked when discovered; (v)there were personal items nearby (including the pink underpants) which the jury could infer were those of the deceased; (vi)when tested, there were no traces of semen on the pink underpants; (vii)people in the vicinity heard screaming; (viii)the accused changed his appearance, as demonstrated by a comparison of Exhs. AG 1 and AG 2; (ix)the accused was seen with Matthews and another person in Queensland six weeks after the death of the deceased. 77The Crown described the reference by senior counsel for the accused upon the evidence of Professor Duflou as "a fair submission". However, he pointed to the evidence of the deceased's broken rib, and the presence of the accused's DNA on her fingernails, as evidence from which a struggle could be inferred, and a conclusion reached that there had been a lack of consent to the sexual intercourse on the part of the deceased. 78The Crown also relied upon the accused's references to a "third person" in his conversation with Ms Innis and in the conversation overheard by Mr Fagg, as well as similar references in the two later recorded conversations. He submitted that this evidence was capable of sustaining an inference of knowledge on the part of the accused of the circumstances surrounding the deceased's death. 79Finally, the Crown relied, as part of its overall circumstantial case against the accused, upon the statements to which I have previously referred as constituting lies. It was submitted that one or more of those statements met the requirements of a lie which amounted to evidence of a consciousness of guilt. CONSIDERATION The test to be applied in determining the application 80It is open to me to direct a verdict of not guilty only if I come to the conclusion that there is a defect in the evidence such that, taken at its highest, the evidence will not support a verdict of guilty. In Doney v R (1990) 171 CLR 207 the High Court stated the principle in this way (at 214): "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations, and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at it s highest, it will not sustain a verdict of guilty." 81It will be evident from the matters to which I have already referred that the Crown case against the accused is a circumstantial one. However the fact that at this stage of the proceedings there may be competing hypotheses or inferences available does not mean that I should direct a verdict of not guilty. It is not open to me to direct a verdict of not guilty on the basis that inferences other than those advanced by the Crown might be open: R v JMR (1991) 57 A Crim R 39. In Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397 Gleeson CJ explained the matter in this way (at 401): "It is a corollary of the fundamental principle that the prosecution carries the onus of proof of guilt beyond reasonable doubt that a jury cannot convict on the basis of circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances: Plomp v The Queen (1963) 110 CLR 234 and Chamberlain v The Queen [No 2] (1984) 153 CLR 521. It does not follow, however, that simply because it is possible, looking at the objective circumstances established by the evidence in a case, to construct a hypothesis consistent with the innocence of the accused, the case is not one fit to go to a jury. That entirely overlooks the role of the jury in a criminal trial." 82His Honour observed that the various matters to which he had referred had been emphasised in Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410 where the Court (Young CJ, Anderson and Gobbo JJ) said (at 415-416): "The question whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the accused could be convicted a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with innocence of the accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the accused and as Menzies J explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt" (emphasis in original). 83It follows that if the evidence adduced by the Crown is capable of proving each of the elements of each offence beyond reasonable doubt, then the matter should be left to the jury for determination (see R v Bilick and Starke (1984) 36 SASR 321; 11 A Crim R 452). In determining the present application, it is important to consider the evidence as a whole, and not in a piecemeal way (see R v Hillier (2007) 228 CLR 618). The issue of lies 84Although the evidence must be considered as a whole the Crown relies, as part of its circumstantial case, upon statements made by the accused which are said to amount to lies which constitute evidence of a consciousness of guilt. In that sense, the issue of whether or not statements made by the accused should be so regarded is a discreet one. 85In short, the Crown argues that the statements made by the accused in his interviews to the police, in which he effectively denied knowledge of the deceased, should, in light of his subsequent statements when speaking to his partner, be regarded as lies. The Crown submitted that those statements met the relevant test so as to permit them to be used as evidence of a consciousness of guilt on the part of the accused. 86The general principles concerning the use of lies which were formulated in Edwards v R (1993) 178 CLR 193 and Zoneff v R (2000) 200 CLR 234 were conveniently summarised by Whealy J (as his Honour then was) in R v Lodhi [2006] NSWSC 672 at [24] and following, and again in R v Lane (No. 13) [2010] NSWSC 1540. The latter decision was the subject of an appeal to the Court of Criminal Appeal (see R v Lane [2011] NSWCCA 157) and although the Court found error in Whealy J's application of the relevant principles, I do not understand the members of the Court to have found error in his Honour's statements of the principles themselves. The most fundamental of those principles is that order to be permitted to be used for the purposes of demonstrating a consciousness of guilt, statement(s) relied upon by the Crown as constituting lie(s) must: (a)be deliberately false; (b)relate to a material issue; and (c)be motivated by a realisation of guilt and a fear of the truth. 87The Crown properly pointed out that although some of the authorities speak of a need for caution to be adopted where lies are sought to be relied upon as evidence of a consciousness of guilt, that does not mean that such caution should be adopted in a way which inhibits the Crown from having the benefit of such evidence when that is clearly appropriate (see R v Lane [2011] NSWCCA 157 at [26] per McClellan CJ at CL). Whether it is clearly appropriate in the present case is the question. That question is to be determined according to whether the statements relied upon by the Crown as constituting lies are capable of meeting the three elements of the test set out in [86] above. 88In the decision of the Court of Criminal Appeal in Lane (supra) Simpson J observed (at [60]) that the task of a trial judge in determining whether evidence of lies may be used in the way for which the Crown contends in the present case is to determine whether or not the evidence is capable of meeting the test I have set out. If the evidence is so capable, then the Crown should be permitted to rely upon this evidence as part of its overall circumstantial case. Consistent with those authorities which govern the test that I am required to apply in determining the present application (set out at [80] to [83] above) the fact that there may be inferences available to be drawn from the statements of the accused other than those urged by the Crown does not mean that it is not open to the jury to conclude that one or more of those statements amounts to a lie which is evidence of a consciousness of guilt (see R v Heyde (1990) 20 NSWLR 234 at 244 per Clarke JA (with whom Gleeson CJ and Studdert J agreed). 89Some of the statements made by the accused in his two interviews, and which are relied upon by the Crown as constituting lies, are somewhat vague and equivocal. For example, and bearing in mind that the necessity for any asserted lie to be clearly identified (see Edwards (supra) at 210) I have some doubts about whether anything said by the accused in the first of his interviews amounts to a lie. It is relevant in this regard to note that on that occasion the accused was being asked to recall events which had taken place some 17years earlier. 90However, in light of the statements made by the accused to his partner in the conversation recorded in Exhs. BB 1 and BC 1, I am satisfied that his answers to questions 279, 394, 397 and 418 in the second of his interviews would be capable of being regarded as being deliberately false. Accordingly, the first element of the test is met. 91Further, the statements made by the accused in answer to those questions related to his knowledge of, and contact with, the deceased. That is obviously a material issue. It follows that the second requirement is also met. 92The real issue is whether it would be open to the jury to rationally infer that it was a consciousness of guilt which motivated the accused to make the statements in question. In the conversations with his partner, the accused was recorded as saying, in effect, that he did not tell the police about being with the deceased because (as he put it) "he did not want to bring (himself) into it". Properly viewed, this is not a case of the accused simply omitting to tell the police about being with the deceased. If it were simply an omission, it would be not be a lie. It is more a case of (for example) the accused being asked whether he had ever seen the deceased before, and the accused responding by saying that he had not. 93In my view, it is important to bear in mind the nature of the third element of the test. In order to be categorised as a lie in the way argued by the Crown, there must (as explained by the majority of the High Court in Edwards (supra) at 211), be an available inference that the lie was told: "...... because the accused knew that the truth of the matter about which he lied would implicate him in the offence or, as was said in Reg. v Lucas (Ruth) because of "a realisation of guilt and fear of the truth" (my emphasis) 94It has been recognised that because a person may lie for a variety of reasons, there may be cases where it is impossible to infer a consciousness of guilt from the nature of a lie, or the circumstances in which it occurred (see Heyde (supra) at 242 per Clarke JA). In the present case, it is relevant that the statement(s) in the second interview which are relied upon by the Crown as lies were made some 19 years after the relevant events took place. It is evident from the passage of the conversation of 18 January 2012 (at [63] above) that the substantial period of time which had elapsed since the death of the deceased was causing him to attempt to piece relevant occurrences together, long after the event. Whilst it may be that he answered questions put by the police because he did not wish to connect himself with the events surrounding the deceased's death that does not, without more, lead to the conclusion that his motivation for making such statements was a realisation of guilt of either of the offences with which he has been charged. Indeed, there were statements made by the accused, both in the course of his second interview with the police and in the two conversations with his partner, which were at odds with such a realisation. 95For these reasons, I have come to the view that the final element of the relevant test for lies has not been met. The Crown should not be permitted to rely on those statements as evidence of a consciousness of guilt on the part of the accused, as part of its overall circumstantial case. The first basis of the application 96As I have noted, the first submission made on behalf of the accused was that the evidence taken at its highest establishes nothing more than the fact that the accused had sexual intercourse with the deceased between within 48 hours of her death. 97I have made a number of references to the finding of the pink underpants. In my view, the location at which they were found, and the presence of other items in that general vicinity, would be capable of sustaining an inference that the underpants belonged to the deceased. 98Mr Stratton SC emphasised that the absence of any DNA (including the DNA of the deceased) on the underpants was capable of sustaining an inference that they in fact did not belong to the deceased. In this regard, he placed some emphasis on the fact that Mr Cassidy had told police that he had seen two pairs of underpants at the scene. In the absence of a second pair being seized by police, Mr Stratton submitted that it would be open to the jury to infer that those which were seized and tested were, as he described them, a "spare pair" which had not been worn by the deceased around the time that intercourse had taken place. 99The absence of any DNA on the underpants which were found is certainly curious. Moreover, I accept that the evidence of Mr Cassidy may raise a question of the presence of a second pair of underpants at the scene. However, Mr Stratton's submissions really amount to the proposition that the evidence may sustain inferences other than those advanced by the Crown. As I have pointed out, the relevant enquiry at this stage of the proceedings is whether or not the evidence is capable of establishing a particular fact or element. The existence of competing inferences does not mean that the evidence is incapable of establishing a particular fact. 100Accepting that it would be open to the jury to infer that the pink underpants were those of the deceased, and notwithstanding his reference to the presence of fluorescent staining being consistent with the presence of semen, the evidence of Mr Bruce, as well as that of Ms Neville, is capable of supporting a conclusion that no semen was detected on them. Mr Bruce also gave evidence of the methods by which semen may drain from the anal cavity after being deposited. Although he described biological functions as being "the main factors" contributing to such drainage, he pointed out that drainage may result from something as simple as the person standing up and moving around. 101Further, although I have not specifically referred to it in my summary of the evidence, there is some evidence which connects the accused to an HQ model Holden motor vehicle. Tyre marks found the scene match those of the tyres fitted to that model vehicle. 102In my view, these circumstances combined are capable of supporting a conclusion that the underpants found at the scene were those of the deceased and that they had not been worn by her after any sexual intercourse had taken place. Bearing in mind the evidence of Mr Bruce that intercourse was likely to have taken place within a 48 hour period prior to the deceased's death, the evidence is at least capable of establishing that the accused had intercourse with the deceased at the Royal National Park. 103It follows that I am unable to accept the first of the submissions made by senior counsel for the accused. The second basis of the application Count 1 104The evidence led by the Crown is obviously capable of establishing that the deceased was killed as the result of being struck to the head with a rock which was found nearby. The more pressing question is whether the evidence, taken at its highest, establishes that it was the act of the accused which caused the deceased's death. 105I accept that a number of the matters relied upon by the Crown, including the remoteness of the location at which the deceased was found, its distance from the area in which the deceased resided, and the evidence of the tyre marks, would be capable of establishing that the accused travelled to the Royal National Park with the deceased. However, although that evidence is capable of placing the accused at the scene at the relevant time, it says nothing at all about his participation in the act which caused the deceased's death. Presence at the scene does not sustain an inference of participation in the killing of the deceased. 106For the reasons more fully set out below, I am not satisfied that the evidence is capable of supporting a conclusion that a struggle took place in the way outlined by the Crown in his opening address. Further, in light of the cause of the deceased's death, the fact more than one person may have heard a scream is unremarkable. That fact says nothing about the accused's participation in the deceased's death and in my view it takes the matter no further. 107I have had regard to the Crown's reliance upon the statements made by the accused in which he made reference to a "third person". I accept that such evidence may sustain an inference that the accused had some knowledge of the deceased's death. Along with the other evidence relied upon by the Crown, it may further sustain an inference that the accused was present at the time of the deceased's murder. However, as I have already pointed out, knowledge and presence on the part of the accused does not, even in combination with the other matters relied upon by the Crown, sustain an inference of participation in either of the ways in which the Crown opened the case to the jury. 108Further in my view, the fact that there is evidence that the accused travelled to Queensland with Matthews some six weeks after the deceased's death amounts to little. It may demonstrate some association with Matthews but there is already evidence which places the accused and Matthews at the scene of the deceased's murder. The fact that they may have been associating six weeks later says nothing about the act causing the deceased's death. The evidence of the photographs of the accused, and what was said to be a change in his appearance, falls into the same category. I have already observed that the only real difference between the two photographs of the accused is the length of his hair. That does not, even in combination with the other circumstances relied upon by the Crown, advance the case against the accused in terms of his participation in the act which caused the deceased's death. 109For these reasons, I have come to the view that the evidence relied upon by the Crown is incapable of establishing that it was an act of the accused which caused the deceased's death. Count 2 110In terms of count 2, the first issue is whether the evidence is capable of establishing that the sexual intercourse which took place between the accused and the deceased was without the deceased's consent. As I have previously outlined, it is the Crown case that such lack of consent is to be inferred from the fact that a struggle is said to have taken place. In this regard, the Crown relied upon two particular circumstances. The first was that the deceased sustained a broken rib. The second was that the accused's DNA was found to be present on the deceased's fingernails. on her fingernails. 111The Crown opened his case to the jury on the basis that the deceased struggled with her attackers and fought back. A struggle of the nature of that alleged by the Crown could not be properly described as minor. However, Professor Duflou gave evidence that even taking into account the rib injury, there was very little to indicate that a struggle had taken place. He specifically agreed (commencing at T 542 line 13) that he was conscious of the possibility of a sexual assault having taken place and was therefore specifically looking for any signs of forced intercourse when carrying out the post mortem examination. He found no injuries suggestive of forced intercourse, nor any external injury (such as bruising) consistent with any struggle having taken place. 112I have also had regard to the evidence of the blouse found in the vicinity. There is, as I have pointed out, evidence from which it is open to infer that this item of clothing belonged to the deceased. There is nothing about its appearance which is consistent of a struggle having taken place. Further, there is also nothing about the appearance of the pink underpants suggestive of a struggle. 113Viewing the evidence as a whole, I am not satisfied that the existence of a broken rib, and the presence of the accused's DNA on the deceased's fingernails, in combination with the other matters relied upon by the Crown, sustain an inference that a struggle took place. As this was the basis on which the Crown sought to establish a lack of consent, I am not satisfied that the evidence is capable of proving that element of count 2. 114In these circumstances, it is not necessary for me to consider the further question of whether or not there is sufficient evidence to establish the circumstance of aggravation alleged by the Crown. CONCLUSION 115For these reasons I have come to the view that the application made on behalf of the accused should succeed. 116I propose to direct the jury to return a verdict of not guilty in respect of both counts in the Indictment, along with the statutory alternatives to counts 1 and 2. ********** 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: 03 March 2014