R v Jones [2014] NSWSC 696

Supreme Court New South Wales

Medium Neutral Citation: R v Jones [2014] NSWSC 696 Hearing dates: 21 May 2014 Decision date: 21 May 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The application for a verdict by direction with regard to both forms of homicide is refused. Catchwords: CRIMINAL - trial for murder - application for verdict by direction with regard to murder and manslaughter - circumstantial case Cases Cited: Doney v R [1990] HCA 51; 171 CLR 207 May v O'Sullivan [1955] HCA 38; 92 CLR 654 R v JMR (1991) 57 A Crim R 39 Category: Interlocutory applications Parties: Regina Wayne Edward Jones Representation: Counsel: L Carr (Crown) C Watson (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Sydney Criminal Lawyers (Accused) File Number(s): 12/389477

EX TEMPORE Judgment 1HIS HONOUR: An application has been made by defence counsel for a verdict by direction, on the basis that there is no evidence of a number of elements of the offence of homicide in its two forms, murder and manslaughter. It was made after he had indicated that he would not be calling evidence, but nothing turns on that. 2Defence counsel has submitted that there is no evidence that the accused did an act that caused the death of the deceased, with regard to both murder and manslaughter; and furthermore, with regard to murder, that there is no evidence that the accused did such an act with either an intention to kill or to inflict grievous bodily harm. 3He submitted that the Crown has not excluded reasonable hypotheses consistent with innocence, in particular with regard to the question of causation. 4To state the Crown case with great succinctness, it is alleged that the accused and the deceased checked into a motel room in Coffs Harbour at about 7pm on 12 December 2012. The last time that the deceased is seen alive is on some CCTV footage from a nearby shopping centre at 7.14pm on 12 December 2012. 5It is quite true that Dr Beer, forensic pathologist, gave equivocal evidence with regard to the cause of death. It is also quite true that he could not rule out as a reasonable possibility death by overdose from methylamphetamine, in light of toxicological evidence with regard to the body of the deceased. Dr Beer has put forward a theory of cause of death founded on asphyxia, but he conceded in evidence that there are no physical signs to that effect on the body of the deceased. He also accepted that it is by no means a firmly established theory. 6I respectfully accept that Dr Beer's evidence is not of great force. And if that were the only evidence in the Crown case, the application would have its attractions. However, to my mind Dr Beer's evidence is by no means the only inculpatory evidence. 7Other noteworthy, undisputed evidence in the Crown case is as follows. 8First, one is entitled to infer that some time after 7.14pm on 12 December 2012 and before the afternoon of 15 December 2012 the deceased suffered a bashing to her face, including a broken nose. 9Secondly, a post mortem examination revealed a number of injuries to the rest of her body, although it is true that the date of infliction is indeterminate. 10Thirdly, at post mortem a fresh chemical burn to the abdomen of the deceased was seen. 11Fourthly, the accused engaged in many acts capable of demonstrating a consciousness of guilt. They include permitting, at various stages, no-one to see into the room; taking convoluted steps to hide the body of the deceased; divesting himself of a number of items at Brelsford Park, Coffs Harbour, including belongings of the deceased; seeking to falsely implicate a taxi driver, Mr Allen; making at least one phone call at the relevant time offering to pay handsomely to be taken away from Coffs Harbour; and telling a seeming lie about men with shotguns bashing him and the deceased. 12Fifthly, during a call on 5 December 2012 (a time when it seems the accused and the deceased were together) made to the deceased by her sister, a male person was heard yelling angrily at the deceased, although I accept that this evidence is of less probative value. 13Sixthly, when the body of the deceased was located it was found to be "hogtied" tightly, whereby if the legs were moved her arms were pressured. In the opinion of Dr Beer that restraint was imposed close to death or after death. 14Seventhly, a ligature was found around the neck of the deceased that was not attached to the other ligatures on her body. 15Eighthly, nine out of 10 of the false fingernails of the deceased had seemingly been removed or dislodged by the time her body was located. Furthermore, the room in question was in a very dishevelled state, suggestive of a struggle. 16Ninthly, to my mind there is an abundance of evidence that during the relevant time the accused was abusing the prohibited drug methylamphetamine. There is evidence from Senior Constable Cook and Dr Beer that that drug can readily cause aggression; in the opinion of Dr Beer, extreme aggression. 17Tenthly, on the morning of 13 December 2012 the proprietor of the motel, Mr Shaw, saw two bloodspots on the wall near the light switch of room 7 at a time when the accused would not fully open the door to that room. One spot contained the blood of the accused, but the other was a mixture of DNA from the accused and the deceased. 18It is well established that a verdict by direction should only be granted when there is simply no evidence of an essential element of the offence charged: May v O'Sullivan [1955] HCA 38; 92 CLR 654; Doney v R [1990] HCA 51; 171 CLR 207. Furthermore, in a circumstantial case like this one, it is not a matter of the Crown needing to rule out alternative rational hypotheses consistent with innocence at this stage: see, for example, R v JMR (1991) 57 A Crim R 39. 19As I have said, if the Crown case consisted of nothing more than the presence of the accused and the deceased in the motel room, along with the evidence of Dr Beer, that to my mind would be a different matter. However, I consider that the circumstantial Crown case that the accused has inflicted fatal violence on the deceased is strong. Nor do I accept that there is no evidence that he has done so with one of the necessary mental elements for murder. 20Accordingly the application for a verdict by direction with regard to both forms of homicide is refused.