Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Marsh v R [2015] NSWCCA 154 Hearing dates: 2 April 2015 Decision date: 09 July 2015 Before: Simpson JA at [1] Harrison J at [2] Adamson J at [203] Decision: (1) Dismiss the appeal against conviction. (2) Grant leave to appeal against sentence but dismiss the appeal. Catchwords: CRIMINAL LAW – appeal – murder – sentence of life imprisonment - appeal against conviction and sentence – whether demonstration video of USMC knife attack method wrongly admitted – whether evidence relevant or invited jury to engage in coincidence reasoning – whether probative value outweighed by danger of unfair prejudice – worst case category of murder – whether sentencing discretion miscarried by imposition of life sentence Legislation Cited: Crimes (Sentencing Procedures) Act 1999 Criminal Appeal Act 1912 Evidence Act 1995 Cases Cited: Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96 Campbell v R [2014] NSWCCA 175; (2014) 312 ALR 129 DSJ v R; NS v R [2012] NSWCCA 9; (2012) 215 A Crim R 349 Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270 R v AN [2000] NSWCCA 372 R v BD (1997) 94 A Crim R 131 R v Burton [2013] NSWCCA 335 R v Cornwell [2003] NSWSC 660 R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 R v Zhang [2005] NSWCCA 437 Raumakita v R [2011] NSWCCA 126 Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650 Soames v R [2012] NSWCCA 188 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Category: Principal judgment Parties: Walter Ciaran Marsh (Applicant) Crown (Respondent) Representation: Counsel: W Terracini SC with R Armitage (Applicant) N Williams (Respondent) Solicitors: Archbold Legal (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/125831 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Date of Decision: 09 March 2012 Before: Price J File Number(s): 2010/125831 Judgment 1. SIMPSON JA: I have read in draft the judgment of Harrison J. Having considered all of the evidence, I am satisfied that the appellant was rightly convicted. I also agree that the sentence of imprisonment for life was one that was open to the sentencing judge. I accordingly agree with the orders proposed. 2. HARRISON J: The appellant was indicted upon a single count that on 27 April 2010 at Chatswood he did murder Michelle Beets. He was convicted of her murder on 14 November 2011 following a trial before Price J and a jury. The appellant was sentenced by Price J to imprisonment for life on 9 March 2012. The appellant appeals to this Court against his conviction and against the severity of his sentence. 3. The grounds of appeal against conviction are as follows: Ground 1: His Honour erred in admitting evidence that the appellant had undertaken training in the use of knives while serving in the United States Marine Corps in the late 1970s. The evidence was inadmissible because: 1. it was irrelevant to the proceedings and hence ought to have been excluded under s 55 of the Evidence Act 1995; 2. alternatively, it invited the jury to engage in coincidence reasoning and hence ought to have been excluded under ss 98 and/or 101 of the Act; or 3. any probative value in the evidence was outweighed by the danger of unfair prejudice that it posed to the appellant and therefore ought to have been excluded under s 137 or possibly s 135 of the Act. As a result of (i) to (iii) inclusive, the verdict is unreasonable and the proviso to s 6 of the Criminal Appeal Act 1912 is inapplicable. Ground 2: The verdict is unreasonable and is not supported by the evidence. Ground 3: Irrespective of the precise basis or bases upon which the evidence is inadmissible, the degree of unfair prejudice posed to the appellant by the admission of the evidence renders the proviso inapplicable. 1. The Crown case at trial was as follows. The appellant is a citizen of the United States. He served in the US Marine Corps between 1978 and 1984. He was previously married and they have a daughter. The appellant trained as a nurse in the United States. He was divorced in 1996 and was required to pay child support for his daughter. 2. The appellant met Samantha Marsh in Vietnam in 2007. He arrived in Australia in December 2008 on a 457 visa. Samantha Marsh came on a student visa. They were married in December 2008 and lived with Ms Marsh's brother from August 2009. 3. The deceased was a Nurse Unit Manager in the Emergency Department of the Royal North Shore Hospital. She interviewed the appellant for a nursing position at the hospital and he commenced work there in February 2009. The appellant worked in that job under the deceased's supervision for 12 months. However, by January 2010 the hospital determined not to renew his contract of employment. He was told of this by the deceased. 4. Without a job in Australia the appellant became exposed to the possibility of deportation in accordance with the conditions of his visa. He made 19 unsuccessful applications for employment in the period before 27 April 2010. The appellant had by then also incurred a debt for unpaid child support payments totalling USD 50,000. By reason of that debt, the appellant was unable to renew his United States passport which precluded his return to that country. He did not wish to return to Vietnam. 5. The appellant formed the opinion that the deceased had adversely affected his prospects of securing employment in Australia by providing him with poor references. That belief was to some extent accurate. The appellant was also angry with the deceased for other reasons that predated the termination of his employment. 6. It was the Crown case that in these circumstances the appellant planned to murder the deceased. Her address was listed in the phone book. He began to monitor her house from late March or early April 2010. He rode his bicycle to her house. He left messages for her on her answer machine. 7. The appellant owned a Ka Bar knife and a flick knife. His wife observed him operating the flick knife. He practised "killing" his wife and her brother by simulating attacks upon them from behind. This consisted of grabbing their faces from behind and cutting their throats, combined with a stabbing to the chest if necessary. The appellant purchased various items of clothing from St Vincent de Paul at Chatswood. He murdered the deceased at her house in Chatswood on 27 April 2010. 8. It was also a significant part of the Crown case that the appellant had confessed to his wife that he had killed the deceased and importantly that in doing so he had given her details concerning the circumstances of her death that could only have been known to the person who killed her. The Crown also adduced evidence of six separate circumstances as follows: 1. Video footage of the appellant in the vicinity of the incident approximately 15 minutes after the death of the deceased. 2. The appellant's disposal of a bum bag and various items of clothing at the location at which he was filmed shortly after the incident. 3. Evidence of the appellant's motive to kill the deceased. 4. Police listening device evidence of the appellant reporting a story to a group of members of the Church of Jesus Christ of Latter-Day Saints that the Crown contended was false and intended to divert police attention, to the effect that the appellant had come to an arrangement with a certain organisation that he would be falsely implicated in the death of the deceased and a large amount of money would be paid to his wife in exchange for him serving time in gaol. 5. The alleged similarities between the method of attack used to kill the deceased and the simulated attacks upon his wife and her brother, and a knife attack method taught to members of the United States Marine Corps at a particular time when the appellant had been a member. 6. The appellant's enquiries at Flight Centre on 19 May 2010 concerning the purchase of a one way ticket to Los Angeles. Rulings of evidence 1. On 7 September 2011 his Honour made two pre-trial evidentiary rulings. The first ruling excluded evidence of what was alleged to be the appellant's plan to kill his former wife. The second related to evidence of the appellant's alleged motive to kill the deceased. His Honour admitted that evidence over objection based upon s 137 of the Evidence Act. The evidence of motive was a combination of the following four factors: 1. The appellant's employment at the Royal North Shore Hospital was soon to expire. 2. His visa might have been revoked if he failed to gain alternative employment. 3. He was having difficulty obtaining employment on account of what he believed to be the deceased providing unfavourable references to prospective employers. 4. He would not be able to return to the United States if he were forced to leave Australia. 1. On 8 September 2011 his Honour made an additional pre-trial evidentiary ruling. He admitted evidence over objection that the appellant was a former marine and in that capacity had received a particular form of knife training. The evidence included a video demonstration of the knife attack method said to have been taught to the appellant. It also included the opinion offered by a forensic pathologist that the attack method demonstrated in the video would in general produce injuries similar to those sustained by the deceased. 2. Counsel for the appellant at the trial objected to this evidence upon the basis that: 1. it did not establish that knife training was in fact given to the appellant; 2. it was unfairly prejudicial to him; 3. it was impossible for the pathologist to express her opinions without having first watched the recording. 1. The Crown relied upon this evidence at the trial in support of a circumstantial case identifying the person responsible for the death of the deceased and also as evidence that the appellant had lied to the police when he told them that he had not had any training in knife attack methods. His Honour concluded prior to the trial that the evidence showed: 1. The appellant served in the United States Marine Corps between November 1978 and November 1984. 2. As a marine he would have received basic training including how to attack someone from behind as depicted in the video. That method consisted essentially of approaching a victim from behind, covering the victim's mouth, hyper-extending the body, throwing the victim off balance and cutting across the neck with the object of severing the carotid artery. Any obstruction or interference posed by the victim's hands is met by repeatedly plunging the knife into the victim's body. 3. The deceased died as the result of incised wounds to the neck and stab wounds to the chest. 4. Based on the forensic pathologist's evidence, the knife attack method would produce injuries similar to those observed on the deceased. 5. The knife attack method may also have included refresher training. 1. The appellant neither gave evidence at his trial nor called any witnesses. His case was that he did not kill the deceased or otherwise harm her and that he was completely uninvolved in her death. It was also his case that he did not go to the deceased's premises on the day that she died. CONVICTION 1. The appellant contended that the evidence of his service as a marine, the training he had received and the video evidence depicting the staged infliction of a fatal wound was all inadmissible as irrelevant and should have been excluded either under s 55 of the Act, or because it invited the jury to engage in coincidence reasoning and ought to have been excluded under s 98 and/or s 101 of the Act, or because it fell foul of s 135 or s 137 of the Act. The evidence 1. Evidence of the appellant's service as a marine was led at the trial from three witnesses. Kelly Murphy 1. Ms Murphy was qualified to give evidence about the appellant's United States military history. He enlisted as a marine in 1978 and left in 1982 with a short service break in November 1981. He completed recruit training at an unspecified date, infantry training in 1979 and attended Marine Security School in 1982. He also served as a Marine Security Guard at United States embassies in Argentina and China. Carl Tyler 1. Mr Tyler served as a marine between 1982 and 2006. At the time of the trial he was employed to develop training curricula for the United States Defence Department. He gave evidence from his personal experience of post-1982 knife training but could only give evidence of pre-1982 knife training upon the basis of what others had told him. He had no personal knowledge of knife training in the Marine Corps prior to 1982 and no knowledge of what marines were trained in at boot camp at Parris Island in 1978. Charles Archuleta 1. Mr Archuleta joined the Marines in 1976 and served as a combat photographer from 1979 until 1996. He said that following graduation as a Marine, graduates received additional combat training including the use of knives. For the trial Mr Archuleta produced a training manual relating to the use of knives. He said the manual was applicable in 1978. However, his work in the Marines did not encompass weapons training. He was never stationed at Parris Island. 2. Mr Archuleta agreed that the 1957 manual, as modified and applicable in 1978, specified a single method for the infliction of death by knife wounding commencing with an approach from behind. That method essentially involved placing the hand over the victim's mouth and face and plunging a knife into the victim's back above the belt. The manual therefore described one method of attack and it was not the method described by Mr Tyler. 3. Mr Archuleta was re-examined as follows: "Crown: Are you aware if there were any other publications that were in use in the Marine Corps in the 70s and 80s in relation to hand-to-hand combat? Archuleta: There always has to be an active Marine Corps order that regulates training to recruits. I just do not have one particularly in our archives covering that time period, but there is always an active recall order that regulates training for recruits that go on on a daily basis. Crown Prosecutor: Is all of that training in hand-to-hand combat within this book? Archuleta: That publication we saw in 1957, that would show the training during that time period. Modern day Marine Corps training from 1976, 1978 and onwards, there's always some sort of hand-to-hand combat taught to recruits during basic training. Crown Prosecutor: Did that include material that was in this book? Archuleta: Yes, sir. It does. Some of the defensive moves, the knife attacks, the bayonet training; they're all similar." 1. The appellant submitted that Mr Archuleta's remarks did not include an affirmative response to the question whether there might exist additional published Marine Corps training material setting out one or more methods for attacking a victim from behind with a knife (that is, aside from the method contained in the 1957 manual). Mr Archuleta's remark "[t]here always has to be an active Marine Corps order that regulates training to recruits. I just do not have one particularly in our archives", taken either in isolation or in the context of the surrounding exchange, does not necessarily amount to a suggestion that there are in fact, or that there were in the past, any other publication(s) containing additional methods for attacking a victim from behind with a knife. 2. Mr Archuleta was subsequently recalled to give evidence. After viewing the video containing the Tyler demonstration, Mr Archuleta affirmed that he was in fact taught that technique "with just a little bit of a variation" in 1976. The variation was to the effect that the attacker would omit the placing of his knee into the victim's back. He affirmed on the basis of personal knowledge (derived from observations made at various west coast training locations) that other recruits were taught that method (minus the knee aspect) post-1976, at least until 1986. 3. In response to a request from the Crown that he (Mr Archuleta) indicate the basis for his knowledge as to what was taught on the east coast, including at Parris Island, in 1978, Mr Archuleta responded: "The Command Museum, which I presently work at, comes under the guidance of G3, which is the higher headquarters element for operations and training. The G3 at the Marine Corps Recruit Depot, San Diego, and the G3 at the Marine Corps recruit Depot, Parris Island, use the same training manuals, the same Marine Corps order." 1. Mr Archuleta agreed that individual instructors could vary the training. Only specific aspects of basic training were taught generally and those aspects were set out in the manual. In addition, the instructors could add their own elaborations to the basic training. The appellant emphasised that the bases for Mr Archuleta's knowledge as to the contents of training at Parris Island were (i) the commonality of the training manuals, that is, the use at Parris Island of training manual(s) that did not contain the attack method as demonstrated in the video by Mr Tyler and (ii) the issuing of a common Marine Corps Order, that is, an Order written at Quantico, Virginia, and disseminated to both east coast and west coast training facilities. There was no evidence as to the contents of such an order. Price J's judgment 1. His Honour considered that the video and the surrounding evidence had substantial probative value and that it did not create unfair prejudice to the appellant: [2011] NSWSC 1686. His Honour admitted the evidence and commented as follows at [8] and [9]: "[8] By viewing the evidence of Kelly Murphy, Carl Tyler and Charles Archuleta, in combination with the representations made to police by [the appellant's brother in law] and Mrs Marsh, a jury could capably conclude beyond reasonable doubt that the accused, whilst in the USMC, received knife training and that training included the killing of a sentry from behind by the use of a knife as demonstrated in the video by Mr Tyler. [9] When this evidence is considered by a jury, together with the evidence of Dr Irvine and the evidence of motive, which was the subject of my judgment yesterday, a jury could capably conclude beyond reasonable doubt that the only rational inference is that it was the accused who inflicted the wounds upon the deceased which caused her death." 1. During the course of the trial itself his Honour considered withdrawing the video recording as an exhibit on the basis that there was no evidence that the attack method was taught to Marines at the relevant time. However, his Honour did not do so and said this: "I was contemplating withdrawing from the jury the demonstration video…[but did not do so]…I was fortified in that view from Mr Archuleta's evidence that, having looked at the demonstration video, the technique was used in 1976 in his enlistment training…" 1. His Honour later continued: "A fact in issue in the trial is whether the accused was trained in the technique of an attack from behind similar to that demonstrated in the video…" 1. Counsel appearing for the appellant at the trial applied for a discharge of the jury on the basis that the evidence was not satisfactory and did not support the proposition that the appellant had undergone the relevant kind of knife training. He asserted that the material was prejudicial and incapable of cure by direction. He also emphasised the dissimilarity between training received by the appellant and that depicted in the video. However, the jury was not discharged and was not directed to disregard the video. It was admitted on the basis that: 1. The supposed similarity between the technique illustrated in the video and the technique that the appellant's brother-in-law said the appellant practised on him using a spoon; 2. Evidence from Ms Kelly Dee that the appellant had said that he knew how to inflict death by slitting someone's throat. 1. His Honour admitted the evidence after consideration of the issue of relevance for the purposes of the Evidence Act but without consideration at that stage of any other evidentiary issues. He later indicated that he had considered the impact of s 137 when admitting the video evidence even though he did not at the time refer to that section. Appellant's arguments 1. The appellant contended generally that whether or not he received a particular type of knife training in the United States Marine Corps was not a fact in issue in the trial. The primary fact in issue was whether or not the appellant caused the death of the deceased and, if he did not, who did. The appellant accepted that it did not necessarily follow that any training he might have received was not capable of rationally affecting the assessment of that primary fact, and hence was not necessarily irrelevant for the purposes of s 55 of the Act. However, he submitted in this case that the proper conclusion should have been, on an examination of the material in evidence, that the knife training was in fact irrelevant for s 55 purposes. Ground 1(i) 1. The appellant contended that in adducing evidence of knife-related training allegedly received by him as a member of the USMC, the Crown invited the jury to accept the following reasoning: 1. The deceased died from knife wounds to the neck and chest. 2. The wounds were inflicted in a particular way. 3. When the appellant served in the USMC, marines were taught a knife attack method similar to that used upon the deceased. 4. The technique demonstrated by the appellant to his wife and her brother was that technique. 5. Therefore the appellant is likely to be the killer of the deceased, especially in combination with the other evidence against him. 1. The appellant submitted that the knife attack evidence possessed insufficient probative force for s 55 purposes. That was said to be because of the following factors: 1. It was doubtful that the appellant was in fact taught the relevant knife attack method concerned. The technique depicted and recreated in the video was not part of the official 1978 training manual when the appellant received his basic training. Mr Tyler did not establish that the method in question was in fact taught at Parris Island in 1978. 2. Mr Archuleta initially confirmed that the relevant training manual only specified a method of attack in which the assailant inserts a knife into the victim's back above the belt. He also confirmed that this was the only method taught to recruits as a general practice. It was only after viewing the video that Mr Archuleta said that he had been taught a modified version of that method and that he saw others taught that same method up until at least 1986. 3. The relevant knife attack method does not entail a high degree of specificity sufficient to lend weight to the suggestion that it would be difficult to perform by someone other than a current or former United States Marine. 4. Ms Kelly did no more than set out the contents of the appellant's military record. 1. The appellant submitted that a finding of relevance would require the Court to accept that the appellant was taught the relevant method and that the teaching relevantly bears upon the assessment of a fact or facts in issue. The appellant contended that the prosecution reasoning in this respect was tenuous because it is neither clear that the appellant was in fact taught the relevant knife attack method nor that it was deployed in the death of the deceased. 2. The appellant argued further that even accepting that there was a requisite degree of probative force in the knife attack evidence apart from the Tyler video, the same conclusion cannot be accepted with respect to the video itself. The video provided the jury with no information that they did not otherwise have from the oral evidence about knife attacks and instructions in the applicable technique. 3. The appellant contrasted the position with Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521. Here the evidence of knife training was not capable of intersecting with other evidence in the trial so as to enhance the jury's capacity rationally to arrive at a finding about a primary fact in issue. The relevance of the in-court display evidence in Evans, in which the accused wore a balaclava and overalls and walked in front of the jury wearing these items, arose out of the comparison between the display and the descriptions given by witnesses, as well as CCTV footage. In that case there were degrees of certainty among all three ways in which the evidence was presented. In the present case, the appellant argued that the evidence does not support a conclusion that he was taught the knife attack method depicted or described, or that the deceased died as a result of the use of that method. Accordingly, the knife attack evidence rose no higher than an invitation to utilise coincidence reasoning. The Crown's response 1. The Crown pointed to the following evidence in the trial in addition to that specifically referred to by the appellant. 2. Dr Irvine examined the deceased at the scene of the murder at about 5:40 am on 28 April 2010. She noted that her neck had been cut through including the larynx and the carotid arteries. There was a "complete transection of all of the soft tissues in the neck that would normally be in front of the vertebral column". She noted multiple cuts to the deceased's neck and a cluster of eight stab wounds on the upper left chest. There was a single stab wound in the central lower chest which went through the skin and cartilage and entered the pericardium and incised the right side of the heart. There was a total of 17 incised wounds on the deceased's hands which Dr Irvine categorised as defence wounds. There were some superficial cuts to the deceased's face, a bruise to her lip and a shallow wound near her collar bone. 3. Dr Irvine was of the view that the knife used to inflict these wounds had a single bladed edge without serrations. Dr Irvine had viewed the Tyler video and was of the view that the technique used in general would produce a distribution and type of injuries similar to what she observed on the deceased. 4. Kelly Dee worked at the Royal North Shore Hospital with the appellant and spoke with him in the tea room about ten months after he had started working there. She gave evidence that the appellant told her that "he knew how to kill people and he said that he knew how to slit someone's throat so that they wouldn't survive". 5. In argument before Price J on the admissibility of the video, the Crown submitted that it wanted to rely on it as part of a circumstantial case to identify the deceased's killer that included evidence of the appellant practising on Samantha Marsh and her brother, his knowledge of how to do an effective knife attack and the manner of the death of the deceased. 6. In general response to the appellant's submissions on this ground of appeal, the Crown contended that they failed to recognise the difference between relevance and probative value. These concepts are distinctly different for the purposes of the Evidence Act. 7. For the purposes of s 55 of the Act, a fact in issue is any matter that must ultimately be determined by the jury in order to decide whether the accused has committed the offence charged: R v Cornwell [2003] NSWSC 660. The focus of s 55 is on the capability of the evidence to affect the determinations or conclusions of the tribunal of fact: R v Burton [2013] NSWCCA 335. Consideration 1. In Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96, Gaudron J at [59] – [60] said: "[59] The dictionary to the Act defines 'probative value' to mean 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. That definition echoes the substance of s 55(1) of the Act which provides that 'evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding'. It is to be noted that the dictionary definition differs from s 55 in that it is not predicated on the assumption that the evidence will be accepted. [60] The omission from the dictionary definition of 'probative value' of the assumption that the evidence will be accepted is, in my opinion, of no significance. As a practical matter, evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted. Accordingly, the assumption that it will be accepted must be read into the dictionary definition." 1. In DSJ v R; NS v R [2012] NSWCCA 9; (2012) 215 A Crim R 349, Whealy JA (with whom Bathurst CJ, Allsop P, McClellan CJ at CL and McCallum J agreed) said: [50] An important cornerstone in the structure of the Evidence Act 1995 is s 55. This deals with the topic of relevant evidence. The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings. [51] Another key section is s 56(1) which provides that, except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in a proceeding. Subsection (2) provides that evidence that is not relevant in the proceeding is not admissible. [52] I have earlier set out the definition of probative value - the extent to which the evidence could rationally affect the assessment of the probability of a fact in issue. [53] As is recognised and stated by the High Court in Smith v The Queen (2001) 206 CLR 650, the first question to be asked when an issue of the present kind arises is whether the evidence is relevant. In the present matter, that the evidence is relevant would hardly be thought to be a matter of contention. However, Mr Odgers SC has queried in his submissions this primary matter. As Gleeson CJ observed in Smith v The Queen, although questions of relevance may raise 'nice questions of judgment', no discretion falls to be exercised. Evidence is either relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. The simple fact is that irrelevant material may not be received. This is a proposition that is fundamental to the law of evidence and well settled. [54] In determining the basic issue of relevance in a criminal trial, it is especially important to identify the ultimate issues. These will ordinarily be expressed in terms of the element of the offence with which the accused stands charged in light of the defence, if known. However, behind these ultimate issues, there will often be many issues about facts that are relevant to facts in issue (Smith v The Queen at 654; Papakosmas v The Queen (1999) 196 CLR 297 at 307: especially at 312 and 321-322)." 1. In Smith v The Queen Gleeson CJ, Gaudron, Gummow and Hayne JJ said: "[7] In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, here the jury, of the probability of the existence of a fact in issue in the proceeding." 1. In Adam, Gleeson CJ, McHugh, Kirby and Hayne JJ said at [22]: "[22] Contrary to the appellant's contention, deciding whether the evidence was relevant neither required nor permitted the trial judge to make some assessment of whether the jury would or might accept it. Section 55(1), with its reference to 'if it [the evidence in question] were accepted', requires that relevance be determined on the assumption that the tribunal of fact accepts the evidence. Relevance is demonstrated if, were the evidence to be accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue." 1. The "fact in issue" in the present case, the existence of which the challenged evidence is said to be rationally capable of affecting, is whether or not the appellant murdered the deceased. Behind that ultimate issue there were many issues about facts that were relevant to this fact in issue, the USMC knife attack training being one. 2. The appellant asserted that there was no evidence that he actually did the training. However, from the combined evidence of Mr Tyler, Mr Archuleta, Ms Murphy and the Tyler video, the inference could clearly be drawn by the jury that the appellant did receive the training. 3. Mr Archuleta's evidence was critical in closing any potential unfilled gap in the Crown case as to the training undertaken by the appellant. Importantly he was recalled after viewing the video and said the technique as demonstrated was used in 1976 when he was at recruit school. The only difference was that he was not taught to place a knee in the victim's back to put them off balance. He gave further evidence that he had a lengthy period of combat service followed by being a photographer in the Marines during which time he would observe training and interact with his counterparts in recruit school. He observed such training from 1976 until 1986 and the technique as demonstrated in the video was what he observed being taught at that time. 4. It was a part of the Crown's circumstantial case that there was a real connection between the military training received by the appellant on how to undertake an attack on a sentry from behind with a knife, the evidence of Samantha Marsh and her brother that he had practised such a manoeuvre on them in the weeks before the death of the deceased and the similarities of the distribution pattern of the wounds from such an attack to those she sustained. 5. Relevance is necessarily a relative concept. The question of whether or not a particular piece of evidence has relevance can only be determined or assessed in the context of the whole of the evidence tendered in the trial. Clearly enough, in a circumstantial case such as the present, no individual fact could establish the appellant's guilt. The jury was required in this case to reason in a staged approach from findings that certain basic facts had been established by the evidence, even if these facts were neither proved beyond reasonable doubt nor taken alone were capable of proving the appellant's guilt, to inferring or concluding from a combination of those established facts that a further fact or facts existed. The ultimate fact the Crown asked the jury to find based upon these facts was that the appellant was guilty of the murder of the deceased. 6. The evidence of the appellant's military training in general, and his knife attack training in particular, was not standing alone capable of establishing his guilt. In precisely the same way, the separate pieces of evidence from Samantha Marsh and her brother, concerning what amounted to simulated knife attacks from behind, was also not, taken alone, capable of doing so. However, the relevance of each of these pieces of evidence, together with other circumstances proved by the Crown, was capable of doing so. The relevance of the knife attack evidence, as opposed to its probative value, lay in its contextual placement in the whole of the evidence in the trial. 7. In my opinion, the evidence of the military training could rationally affect (directly or indirectly) the assessment of the probability of the existence of the fact in issue, namely whether the appellant murdered the deceased. Such a finding was clearly open to his Honour as the jury could properly find a logical connection between the issue of the military training and the manner in which the deceased was killed. The evidence of the military training was relevant under s 55. Ground 1(ii) 1. The appellant next contended that the evidence was relevant, if at all, only as coincidence evidence. Sections 98 and 101 of the Evidence Act therefore applied. They are as follows: "98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2)… 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant." 1. The appellant submitted that the evidence of the two events that attract the operation of these provisions was the evidence of knife training undertaken by the appellant in the late 1970s as a component of his USMC training and evidence surrounding the death of the deceased. He submitted that the evidence of knife training invited the jury to conclude that it is comparatively unlikely that a person murdered by a technique taught to USMC personnel was not in fact murdered by a current or former USMC member. 2. The Crown did not give notice of its intention to adduce coincidence evidence in accordance with s 98(1) (a). The appellant submitted that the evidence was therefore inadmissible for a coincidence reasoning purpose: R v AN [2000] NSWCCA 372 at [62]. 3. The appellant also argued, however, that the evidence lacked significant probative value, as earlier discussed at [35], so that it ought to have been excluded having regard to s 98(1)(b). 4. The appellant submitted that the coincidence reasoning for which the Crown contends in this case is to be distinguished from the coincidence reasoning in issue in R v Zhang [2005] NSWCCA 437. There the court found that for the purposes of the coincidence rule, it was indeed improbable that drugs would be kept on two premises controlled by one accused without the accused's knowledge, so that the evidence to support one count was admissible to support the other. There was an undisputed factual connection between the accused and each of the two separate premises on which the prohibited substances were discovered. In the present case, by way of contrast, even though the appellant received some form of training in the USMC, there is no undisputed factual connection between the appellant and the incident resulting in the death of the deceased. There is merely a contention that a person who is or was trained as a member of the USMC is a member of a class of persons that was highly likely to include the person responsible for the death of the deceased. 5. The appellant submitted in the alternative that the additional requirement of s 102(2) is attracted. The Crown is entitled to invite coincidence reasoning only where "the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant". As was considered in R v Ellis [2003] NSWCCA 319 at [94], the court is required to give "consideration to the actual prejudice in the specific case which the probative value of the evidence must substantially outweigh." The appellant contended that the probative value of knife training does not "substantially outweigh" any prejudicial effect it may have on the appellant but that the opposite was in fact the case. The Crown's response 1. The Crown did not give notice of an intention to adduce coincidence evidence pursuant to s 98 (1) (a), arguing instead that such notice was unnecessary as the evidence of the military training did not involve coincidence evidence or invite the jury to engage in coincidence type reasoning. 2. The importance of the military knife training lay in the similarity in the pattern of the injuries that the deceased had suffered during the course of the attack upon her, which included multiple very deep lacerations to her neck, cluster stab wounds to her chest and 17 defensive wounds to her hands, and injuries that would be inflicted in the manoeuvre that was taught in the Marines, and the manoeuvre which the appellant practiced on Samantha Marsh and her brother. 3. Dr Irvine, the forensic pathologist, opined that the wounds that she saw on the deceased were consistent with having been inflicted in an attack such as she witnessed in the demonstration by Mr Tyler. 4. The Crown case was never put on the basis that it was comparatively unlikely that a person murdered by way of a technique taught to members of the USMC was not in fact murdered by a current or former member of the Marines, the appellant being a former member. It was never suggested that only a member or former member of the USMC could have committed the offence. Rather this evidence was simply relied upon as one piece of the circumstantial evidence in establishing a case against the appellant. 5. The Crown submitted that the coincidence rule is not applicable as there is no evidence "that two or more relevant events occurred…" which would attract the operation of s 98. Consideration 1. The evidence of the knife attack training in my opinion has nothing to do with coincidence or coincidence reasoning. In order for the appellant's knife attack training to qualify as coincidence evidence it would be necessary to conclude or to infer that the deceased had in fact been killed by a United States Marine or former marine or, more generally, by someone who had received knife attack training as a member of the USMC. In the case at hand, the evidence does not permit a finding that the deceased was killed by a person with such qualifications. At its highest, the evidence established that the deceased was killed in a vicious and sustained knife attack that was consistent with an attack by a large range of unqualified members of the general population. As far as I can determine, the trial before Price J was never conducted upon the basis that the Crown could, or was attempting to, point to two events that were otherwise unlikely to occur by chance. The cause of death of the deceased or the method of killing her taken at face value did not coincide with USMC knife attack methods or training techniques. 2. The question of unfair prejudice to the appellant does not therefore arise in this context. It is otherwise dealt with in consideration of the following ground of appeal. Ground 1(iii) 1. The appellant submitted that the evidence poses a danger of unfair prejudice to the extent that it invites the jury to conclude, even if only subconsciously, that a person with a military background is more likely to engage in violent activity than otherwise. Mr Tyler's video is said to contain a higher form of unfair prejudice as it is of a violent and confronting nature, inviting the jury to dwell upon the manner in which the deceased appears to have died. This is particularly prejudicial as well because establishing the precise manner of death was said to lack a legitimate forensic purpose. The added apparent military authority of the author of the video contributed to this prejudice. 2. The appellant also submitted that the confronting nature of the video would or might have inflamed retributive sentiments in jurors, in turn motivating them to identify a culprit, while also clouding their capacity dispassionately to assess the probative strength of the evidence or its comparative strength. Finally, the appellant contended that there was a danger that the shortcomings in the USMC training evidence might be downplayed or overlooked and that the video evidence might correspondingly although artificially be heightened. The Crown's response 1. As noted in R v Burton by Simpson J at [134] and at [182], the correct approach to the interpretation and application of s 137 requires a Court to undertake two separate assessments followed by a judgment involving a balancing exercise. There should be an initial assessment of the probative value of the evidence in question followed by an assessment of the danger of unfair prejudice to an accused that might attend the admission of that evidence. If the result of the decision-making exercise is that the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant, the court is obliged to exclude the evidence. It has been held that there is a danger of unfair prejudice if there is a real risk that the jury will make improper use of the evidence: R v BD (1997) 94 A Crim R 131. 2. Her Honour went on to say this at [146]: "[146] The exercise required by s 56(1) is a qualitative one: does the evidence have the quality of being capable of rationally affecting the assessment of the probability of the existence of a fact in issue? The exercise required in assessing probative value is a quantitative one: to what extent does the evidence have that quality?" 1. Additionally in R v Burton her Honour said at [148] that a "necessary first step in the assessment of the probative value of evidence is to identify any 'fact in issue' the assessment of the probability of the existence of which is said to be affected by the evidence. The ultimate facts in issue in a criminal trial are the facts that constitute the elements of the offence charged. Often there will also be issues about facts relevant to those facts…" 2. Her Honour also noted at [198] that the decision in that case to exclude the evidence based on s 137 resulted from an incorrect approach to the task required by the section. The starting point of the assessment is to assume that the inferences most favourable to the Crown will be drawn, and to assess the potential probative value on that basis, without regard to the availability of any competing inference. In the present case the inference most favourable to the Crown is the inference that the appellant had trained in the knife attack technique when he was in the USMC. 3. Price J's judgment of 8 September 2011 makes it clear that he adopted the three step process in determining the admissibility of the evidence under s 137. First he assessed the probative value of the evidence, finding that the evidence had substantial probative value. His Honour then evaluated the danger of unfair prejudice saying that he failed to see how the jury could be expected to misuse the evidence but would in any event give them an appropriate direction when the video was to be admitted. In carrying out the weighing exercise required as the third step his Honour concluded that the probative value of the evidence was not outweighed by the danger of unfair prejudice to the appellant. 4. In the course of his Honour's summing up he directed the jury that "should they be satisfied that the accused was trained in a technique similar to that in the demonstration video, that finding alone cannot prove the guilt of the accused." He further directed them that "I also repeat my direction that you must not reason that because the accused had been trained in the US Marines he is more likely to be the sort of person that would be involved in the killing of another; that would be totally wrong." 5. The Crown submitted that his Honour engaged in all of the correct steps in the application of s 137. The Crown submitted that there was no error shown in his Honour's approach or in his findings as to the probative value of the evidence, the danger of unfair prejudice that it may have had or the balancing exercise that he carried out. Consideration 1. The appellant's background of military experience and associated training was an historical fact. Taken alone, it carried with it no prejudice of any kind. It did not compel or suggest anything unfavourable to the appellant. For example, it may be contrasted with evidence of a criminal record, which carries with it certain underpinning assumptions that are generally and obviously definitively prejudicial. 2. In the same way, the Tyler video was neither prejudicial to the appellant nor unfairly so. It was clearly a reconstruction. It was accompanied by an audio description of what was being demonstrated. It did not purport to go beyond matters that had previously been described in oral evidence by another witness. The prospect that the jury could misuse the evidence if uninstructed about it seems to me to have been remote. The prospect that the jury would have done so having been directed in the terms adopted by his Honour seems to me to be even more remote. 3. The probative value of the evidence has already been considered. I am not satisfied that the probative value of the Tyler video is outweighed by the danger of unfair prejudice to the appellant. Ground 2 1. The appellant submitted that upon the whole of the evidence it was not open to the jury to be satisfied beyond reasonable doubt that he was guilty. He relied upon the following matters: 1. No one witnessed the killing. 2. No weapon has been recovered. 3. No forensic evidence connects the appellant to the scene. 4. No one identified the appellant in the vicinity of the murder at the relevant time. 5. Samantha Marsh altered her evidence from "[h]e never do something like this" to evidence that tended to incriminate the appellant. 6. The USMC knife training evidence was inadmissible. 1. The appellant contended that the jury's verdict was unreasonable and not supported by the evidence. The Crown's response 1. The Crown submitted that individually and collectively the "imperfections" in the Crown case are no bar to a conviction provided that the evidence that was before the jury could otherwise sustain a guilty verdict. 2. There is no rule of law which mandates that there must be a witness to any incident that results in a death that is alleged to be murder. The fact that no murder weapon was discovered, the fact that there is no forensic evidence that places the appellant at the murder scene, or the fact that no witness can identify the appellant in the immediate vicinity of the murder at the relevant time are no bar to a conviction on a charge of murder. 3. In the course of the trial Samantha Marsh identified the appellant from CCTV footage that placed him in Victoria Street Chatswood less than 20 minutes or so after he fled from the premises at Holland Street, which is a distance of about 700 metres and easily walked in minutes by a fit man. 4. There are also cogent and rational reasons why Samantha Marsh altered the version of evidence that she originally gave to police. 5. The Crown reiterated that the evidence of the knife training that the appellant underwent in the USMC was admissible and its probative value was extremely high. The Crown case at trial was a combination of direct evidence and circumstantial evidence which resulted in a strong prosecution case. The Crown contended that based upon the whole of the evidence in the trial it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. Consideration 1. This ground necessitates an understanding of the detail of the Crown case at trial, which was based on both direct and circumstantial evidence that combined to make an overwhelming and irresistible prosecution case. 2. The direct evidence consisted in a series of admissions made by the appellant to his wife Samantha Marsh shortly after the murder of the deceased on 27 April 2010 at about 7:00pm and other associated direct observations that she made of the appellant in the weeks leading up to and in the days immediately following the killing. There was also evidence from the appellant's brother in law of his conversations with and observations of the behaviour of the appellant both before and after the death. Combined with the direct evidence, the Crown case also included a large and compelling body of circumstantial evidence. This was grouped into six discrete categories as follows: 1. The appellant's presence in Victoria Avenue so soon after the murder. 2. The accused disposing of three backpacks, a bum bag, a jacket and other items of clothing in the days following the murder. 3. Evidence of motive. 4. The incredible story about 'the Service' told by the appellant to Clementine Cuneo and the Mormons. 5. Similarities between the sentry attack manoeuvre taught to United States Marines, the way in which the appellant practised a manoeuvre on Samantha Marsh and her brother and the way in which the deceased was killed. 6. The appellant's attempt to flee Australia. 1. The direct evidence consisted of the following witnesses. 2. Samantha Marsh gave evidence that she had received an indemnity from prosecution from the Attorney General of NSW and a certificate under the Evidence Act from the presiding trial judge to prevent any evidence that she would give from being used against her providing that she told the truth. Samantha Marsh told the court that she had met the appellant in Vietnam in 2007, married him in Australia in 2008 and at the time of the killing of the deceased in April 2010 was living with him together with her brother in an apartment in Mowbray Road, Chatswood. 3. The appellant worked as a registered nurse in the Emergency Department at the Royal North Shore Hospital and it was through this employment that he had obtained a 457 working visa which allowed both he and Samantha Marsh to reside in Australia. Samantha Marsh said that the appellant had told her on a number of occasions that the deceased, who was effectively his work supervisor at the hospital, had "too much power, that she bullied staff and that one day she needed to go". The appellant did not like the deceased. 4. Samantha Marsh said that the appellant had significant child support obligations to his former wife in the United States, with whom he had a daughter born in 1992 and that she had made some child support payments on his behalf on more than ten occasions. There were difficulties for the appellant obtaining a new passport while this debt remained unpaid. 5. Samantha Marsh was aware that the appellant's work contract had expired at the hospital and that this had worried and concerned him, although he was actively looking for new employment in the nursing field. He also told her that one of the recruitment agencies that he had contacted told him that he had "got bad reference" and as a result he would not be able to find employment. 6. A few days later the appellant told Samantha Marsh that he thought that the only person who would give him a bad reference was the deceased. He further told her that even though he had not put the deceased's name down as a referee, he knew that she would not give him a good reference. Potential employers would go through the Nursing Unit Manager as the first person if they wanted to check on the referee list. 7. The appellant made a brief trip to the Unites States in March 2010 and returned to Australia on 14 March 2010. The appellant told Samantha Marsh that he knew where the deceased lived, her routine and that there was an electricity box at the front of the house, a sensor alarm and some "kid's pushbikes that look like they have not been used for ages…". The appellant told Samantha Marsh prior to the death of the deceased that the only way to disable the sensor light at the front of the deceased's house was by spraying it with black paint or by turning off the electricity at the front of the house. 8. During the month before the death of the deceased, the appellant told Samantha Marsh that he had received "permission from the organisation in Ireland to kill Michelle Beets". The appellant also told her that he wanted to confront her "by pretending to distribute the Mormon books" and that he wanted to "freak her out, to scare her". 9. The appellant also told Samantha Marsh that he had tried to call the deceased a few times to check her routine from a phone booth outside Westfield Chatswood. 10. Samantha Marsh saw the appellant about two weeks prior to the day of the killing wearing particular clothing that she had not seen before or since. The clothing included track pants, a dark blue T shirt with a vee neck with 'AIKMEN' written on the front, a really baggy grey "hoodie" and some black Converse shoes. The appellant told her that he had bought these clothes very cheaply from a second hand clothing store called "St Vinnie". When she joked with him about the clothing making him look younger, he said that the clothing was "for a special purpose". 11. The appellant bought a pair of green and yellow rubber household gloves which were about 20cm long from Coles in Westfield about a week to a week and a half before the killing. 12. Samantha Marsh gave evidence that the appellant owned a Ka Bar knife which was a type of "military knife - a Marine knife". The appellant told her that he had purchased it in a knife store as it "remind him of the time he was in Marine". The appellant had modified the Ka Bar knife because "it was too big for my hand". 13. About a week before the killing of the deceased, Samantha Marsh saw the appellant with a flick knife which was small, being about 10mm [sic] when folded and about 20cm when open. She witnessed him practising flicking the knife open on more than one occasion but she never saw the knife again after the killing. 14. About a week and a half before the killing the appellant asked her if he could practise something on her. She agreed and the appellant came up behind her and held her neck or the upper part of her shoulder with his left hand and with his right hand he was holding something black. He then told her to raise her hand up to take his left hand away from her neck and then he pretended to stab under her arms and chest. She became scared and asked him to stop. 15. On the evening of 27 April 2010 Samantha Marsh and the appellant agreed to meet in front of Westfield at Chatswood at 7:00pm. She identified herself arriving at Chatswood railway station on 27 April 2010 from still photos and video footage taken on that day. She further recognised clothing, including a white cap worn by a man depicted in the video footage, as looking like clothing that the appellant was wearing on that night. 16. When she viewed the video she recognised the man depicted wearing the white cap as the appellant. She confirmed that she had met the appellant in front of the main entrance to Westfield. She also saw an image of a man with a white cap holding a plastic bag on video footage outside Mr Vitamins. She was with him at that time as they walked home. She identified the male image's feet as the appellant's feet as he was wearing a pair of "flip flops" which she described as "a sandal without the back, without the back strap" that she had bought for him. 17. When she met the appellant he was wearing a white sporty T shirt with Adidas written on the front, track pants and no jacket even though it was "really cold that night". She further described the cap as a very light brown cap with a kangaroo "right at the top. It's an Australian sort". He was carrying a laptop without a "pouch". This was the first time that she had seen the appellant carry the laptop without it being either in a pouch or a backpack "which he normally used every single day". She also recognised the plastic bag as one from the Great Northern or Southern Hotel. 18. Whilst walking home after meeting at Chatswood, as they turned the corner across from Gloria Jeans near Westfield, the appellant told Samantha Marsh "that it was done". She did not understand what he meant at first and she asked him again. He told her again "it was done". He said "the bitch is gone. From now on I shouldn't have any more bad references; that we should have a better future." They continued to walk straight ahead, turned right at the Mandarin Centre and passed under the bridge. 19. The appellant said nothing until they "walked straight into Pacific Highway", but while they were waiting for the traffic light to change he told her "I'm not sure if she's dead". He said that things did not go as expected that night as there were people around and they had noticed something as the deceased "kept screaming" and he had to run away while she was still alive. 20. The appellant told Samantha Marsh that when the deceased arrived home her car light remained on, which was not her usual routine. When she realised that there was no light in front of the house "she stepped backwards". He also told Samantha Marsh that he broke a window pane before the deceased arrived home to make it look like a break and enter. He said that when she stepped backwards he had to come up to grab her, then put her on the ground but she continued screaming. 21. The appellant told the deceased that if she stopped screaming he would not hurt her. The deceased said "Yeah I will stop screaming. I'm just afraid you're going to hurt me that's all." The appellant told Samantha Marsh that "then, as soon as she stopped screaming…I took out a knife and cut her throat." He was disturbed by people walking near the house. He bumped into them and they unsuccessfully tried to stop him. He did not think that they recognised him as he had a beanie on, which only showed his eyes, and a hoodie over his head. 22. As they walked a little further the appellant told Samantha Marsh that he had thrown the gloves worn and the knife used in the attack into a storm water drain. She did not know what a storm water drain was so he stopped and showed her one on the way home. He told her that he had discarded the clothes that he had worn in various garbage bins where there was no CCTV surveillance along the route back to Westfield at Chatswood. 23. He explained that when he got away from the house he changed in an empty garage which was surrounded by bush and which no one ever used. He had left his backpack in this garage before he went to the deceased's house so he was able to come back there and get changed quickly before he left. He remarked to her that "It was very clean. I didn't have that much blood on, so it was very fast and I didn't take that much time to get changed." He also told her that the knife was not as sharp or as good as he expected "…so that's why he cut her throat many times." 24. The appellant and Samantha Marsh approached an apartment block about five minutes' walk away from their home, which had a swimming pool in the grounds. The appellant took off his clothes and jumped into the water, quickly washing his entire body and rubbing his hair. He then got out of the pool, put his clothes back on, closed the gate and walked home with her. She identified photographs that showed the unit block with the swimming pool where this occurred. 25. On the way home the appellant stopped Samantha Marsh from attempting to kiss him as he was "dirty". He also told her that he had turned off the electricity in front of the deceased's home before she arrived home. 26. When they arrived home the appellant asked Samantha Marsh to use her key to let them in, whereupon he went to the downstairs communal laundry. He asked her to bring him some fresh clothes and a rubbish bag. When she came to the laundry the appellant dumped the wet clothes that he had worn earlier into the rubbish bag. The appellant then told her that he was going out for ten minutes. 27. When he returned to the apartment the appellant no longer had the rubbish bag with him but was still wearing the flip flops. He walked straight into the kitchen "and he washed his hands many times…". He sat on the couch and had some alcohol and then stood up and took off the flip flops saying that he was going to discard them and that he would be back in a few minutes. He left and came back a few minutes later. Samantha Marsh never saw those flip flops again. 28. After the death of the deceased the appellant told Samantha Marsh not to talk about the matter at all from then on as there "might be a listening device somewhere in the house…" He told her that he had thrown away the Ka Bar knife as he said that "It was not good to have a weapon like that in the house just in case the local authority or the police come and check. It just doesn't look good on you." 29. About a week before his arrest the appellant told Samantha Marsh that he was not worried about the police coming and arresting him for murder as he was more worried about "people from inside the secret organisation in Ireland who would come knocking at the door and kill him." He told her that she would receive a large sum of money from an insurance account set up under her name and that it would be enough for her to live on for the rest of her life. The next day she asked him about this outside the apartment on the street and he told her that it was "all a lie" as he "meant to say that in the house because there's a listening device in the house. I was just fooling the police around that's all." 30. Samantha Marsh also listened to two taped conversations that were tendered in evidence. 31. Between 27 April 2010 and 19 May 2010 Samantha Marsh spoke to investigating police at least three or four times. Police had come to her home twice and also to her place of work. Prior to 19 May 2010 she did not tell police the truth as to what she knew about the death of the deceased. She explained that she made the earlier untruthful statements because she was still living with the appellant and she was concerned not only for her own safety but that of her brother. Additionally, in Vietnamese culture a wife is expected to be loyal to her husband. The appellant had also told her that she was not allowed to say anything to police under American law but he did not know what the law on that point was here. 32. Samantha Marsh was cross-examined at length as to why she did not tell the police about the matters that she gave evidence about prior to 19 and 20 May 2010. 33. It was only after the appellant's arrest on 19 May 2010 (when he was arrested for a forensic testing procedure and taken to Hornsby Police Station) that Samantha Marsh spoke to the police and told them what she knew about the appellant's involvement in the killing of the deceased. On that day she had provided a written statement to police which was not the truth. Detective Laidlaw, a senior police officer, told her that he had been a police officer for more than thirty years and he knew when people were lying. He believed that she knew the truth and she should think carefully about her life as she was young and would regret not telling the truth one day. Police took her back to the apartment which was surrounded by media. She then asked police to take her back to the police station whereupon she told them the truth. 34. Samantha Marsh was also cross-examined at length as to what benefits she received from the NSW Police Service. This was disclosed by her to have been a sum of $360 per week which she started to receive when she moved out of the apartment in Chatswood. She said that her brother also received a bicycle from the police. 35. The Crown promoted Samantha Marsh to the jury as an honest and reliable witness. Even though she had initially told lies to police, that was said to be understandable. Apart from the reasons of traditional Vietnamese cultural loyalty, between 27 April 2010 and 19 May 2010 Samantha Marsh remained living in an intimate domestic relationship with the appellant. Her brother was with them too. She was aware of the appellant's physical strength and his training with and his ownership of knives. Moreover, on 27 April 2010 she had just received his confession to the killing of the deceased in a carefully planned, chillingly violent and barbaric manner. Both Samantha Marsh and her brother were potentially exposed to significant risk from the appellant. 36. Furthermore, on almost all of the critical pieces of Samantha Marsh's evidence there was independent evidence elsewhere in the Crown case that supported her account such that the jury could have been satisfied beyond reasonable doubt as to her credibility and the truthfulness of her account of the confession. For example, she met the appellant outside Westfield at about 7:00pm on 27 April 2010. There was in fact evidence available in the form of CCTV footage that placed the appellant in the vicinity of Westfield between 6:45pm and 7:00pm. Samantha Marsh identified that person as the appellant. The appellant himself admitted in his ERISP that he met Samantha Marsh in front of Westfield on this particular night a little before 7:00pm. 37. Detective Scott Bennett, who was qualified as a "temporary expert" by virtue of his familiarity with the CCTV footage and his prior observations of the appellant, gave evidence that he also recognised the male in the CCTV footage as the appellant. 38. The jury had the opportunity to look at a photo of the appellant's right arm that displayed a distinctive tattoo that looked like a series of linked motifs on his wrist. The jury could compare this photo of the appellant with the male on the CCTV footage and still photographs taken from it. The tattoo visible on the appellant's right wrist in the photo taken in the forensic procedure on 20 May 2010 is visible in the still photo taken from the CCTV footage on 27 April 2010 at Westfield Chatswood. Other photos also depict a male said to be the appellant wearing an identical white Adidas T shirt on 20 March 2010 that is the same as the shirt being worn by the appellant outside Westfield on 27 April 2010. 39. Arguably the most critical aspect of Samantha Marsh's evidence is the confession that the appellant made to her on their way home after meeting her outside Westfield at 7:00pm. It included a significant amount of detail amongst which there were four discrete pieces of information that were never disclosed by police to the media or alternatively released but not disclosed by the media. 40. First, it was never reported to the media that there were two scooters on the porch at the deceased's premises. Despite this, Samantha Marsh gave this detail in her account of what the appellant described to her as how the outside of the deceased's home appeared when he had reconnoitred there prior to the killing. She was clearly describing two scooters. Crime scene photos depict them propped up against the wall at the deceased's home. David Grant, the deceased's partner, also confirmed that the two scooters were his and they had been there for a couple of months. 41. Secondly, it was never reported to the media that there was a broken window on the laundry door at the deceased's premises. However, Samantha Marsh told police that the appellant told her that he had broken a window to make it look like a burglary. 42. Thirdly, it was never reported to the media that it was unusual for the deceased to reverse her motor vehicle into her driveway. However, Samantha Marsh told police that the appellant had told her that things had gone unexpectedly that night as the deceased had kept her car lights on. This was consistent with the deceased reversing her car into the car port instead of driving in. Photos of the premises show a car in a carport facing towards the street consistent with having reversed in. In such a position the car lights would have beamed light into the front garden near where the attack took place. If the vehicle had driven into the carport, the lights would have beamed away from that area at the front of the house. Moreover, on 27 April 2010 at about 6:10 pm or 6:15 pm, Brittany Simpson walked past the deceased's home and saw a Camry vehicle making three or four attempts to reverse into the driveway before successfully reversing into the carport. Ms Simpson identified the vehicle as being in approximately the same position as the vehicle she saw on the day. 43. Finally, it was never reported to the media that a number of phone calls had been made to the deceased's home from public phones. Nonetheless Samantha Marsh told police that the appellant had made several calls to the deceased from payphones outside Westfield. That is supported by the telephone records produced by Adam Gelfe. He said that the deceased had a landline connected in her name at 28 Holland Street, Chatswood. That information was available to the public in the New South Wales White Pages for the years between 2005 and 2010. The first call identified as being of interest was made on 5 April 2010 at 5:15 pm from a Telstra payphone located at 400 Victoria Avenue, Chatswood to the deceased's landline. The call lasted 10 seconds. A second call to the deceased's landline was made on 15 April 2010 at 12:24 pm that lasted 12 seconds. That call was made from a pay phone situated at 358A Victoria Street, Darlinghurst. There was evidence from Detective Sergeant Peter Smith, who presented the appellant's banking records showing a transaction at an ATM situated about 500 metres away from that payphone at about 1:36 pm on 15 April 2010. This was about 52 minutes after the phone call was made to the deceased's landline. A third call to the deceased's landline was made on 18 April 2010 at 16:48 from the payphone at 400 Victoria Avenue, Chatswood. Alan Grochulski knew the deceased very well. About three to four weeks before she died the deceased told him that she was receiving phone calls, and messages were being left for her to call the appellant. The deceased told Mr Grochulski that she did not want to speak to the appellant and was avoiding him. 44. Samantha Marsh knew these significant details and included them in her account of the appellant's admissions and confession to her. They had not been released to the public. They are details of such specificity and accuracy that her knowledge cannot be explained by coincidence or chance. 45. There were various other incidental pieces in the Crown case which supported the evidence of Samantha Marsh. She gave evidence that the appellant had told her that there was a sensor light at the front of the deceased's premises and he had disconnected the power before the deceased arrived home. The control room of the security company received notification that the alarm had gone off at exactly 6:00pm due to a power failure at the premises. 46. Samantha Marsh gave evidence that the appellant had told her that things had gone unexpectedly that night for a number of reasons and he was not sure if the deceased was dead when he left. He told her that there were people around and their attention was aroused because of the deceased's screams so he had to run away. This aspect of her evidence is confirmed by Gordon Bevan and his wife Carmel Bevan who were walking their dog past 28 Holland Street at about 6:15 pm when they heard a female screaming. Upon investigation Mr Bevan found the deceased who was dying on the porch. 47. Samantha Marsh said that the appellant owned a Ka Bar knife but had thrown it away after the death of the deceased as he said it would look bad if the police came around and found it. The appellant acknowledged that he owned such a knife and he threw it away after the death of the deceased but justified his actions saying he had ruined it when trying to modify it. 48. Samantha Marsh gave evidence that one evening the appellant wanted to practise a manoeuvre on her but she became frightened and asked him to stop. Her evidence was supported by her brother who gave an account of a very similar manoeuvre that the appellant practised on him. 49. Samantha Marsh said that on many occasions the appellant demonstrated animosity towards the deceased. That is borne out in the conversations between the appellant and Samantha Marsh recorded on the listening device tape. 50. Peter Neave, the security guard at the Royal North Shore Hospital, also gave evidence of the appellant's animosity towards the deceased. He had worked at the hospital for about five years and the appellant was the only person who had ever said anything bad to him about the deceased. David Ellis was also a security guard employed there and he said the same thing. Alki Georgiallis worked for Reid Recruitment and also spoke of the appellant's dislike for the deceased. 51. Samantha Marsh said that the appellant had told her that he had ridden his bike past the deceased's home several times. Melissa Clemens and Andrew Craig, who were renovating a house in Holland Street, said that they saw a man on a bike acting suspiciously riding slowly up and down Holland Street on 21 April and 24 April 2010. Mr Craig was shown a selection of photos of bicycles which included a photo of the appellant's bike and he selected the photo of the appellants' bike. 52. Katrina Kyneur gave evidence that the deceased had told her on 21 April 2010 that she had seen the appellant in her street "the other day" and that she put her head down and kept walking. 53. Samantha Marsh's brother gave evidence that the appellant had asked him to come along to the home of the deceased on a particular occasion. 54. A careful analysis of the evidence of Samantha Marsh, taking into account all of the areas of support for the critical aspects of her evidence, reveals no discrepancies and displays no inadequacies. Her evidence is not tainted in any way. It is powerful, persuasive and of substantial probative force. A jury would not have experienced a reasonable doubt in relying upon it to find the appellant guilty of murder. 55. Samantha Marsh's evidence was further supported by the evidence of her brother who was granted an indemnity from prosecution by the Attorney-General. He lived with the appellant and Samantha Marsh in their Mowbray Road apartment. He gave evidence that he saw the appellant with a "folding knife" several times but not after the death of the deceased. He said that he saw the appellant in the lounge room waving the folding knife around in the air. He drew a sketch of it. 56. It was the Crown case that this smaller knife, being the folding knife or a flick knife was one that was used to murder the deceased. It was never located. Samantha Marsh's brother also saw the appellant with a Ka Bar knife which he had modified to make smaller. 57. On the Friday before the murder the appellant asked his brother in law "to go to a home of a nurse and be there, looking around and tell him whether or not any person come in…and he said the reason he was going to the home because that nurse had been trying to prevent him from getting a job, so he wanted to come to see her and do something bad to her, so that she wouldn't prevent him from getting a job". The appellant told him the house was ten minutes away by bike. He said he would go but did not end up doing so. 58. A substantial part of this witness's evidence dealt with an occasion when he said the appellant asked him to participate in the appellant practising a knife attack upon him from behind. The witness described what the appellant did with a wooden spoon and then demonstrated to the court with Detective Dixon. The Crown case was that this provided powerful support to Samantha Marsh's evidence that the appellant had done a similar thing to her, but it also connected powerfully with the evidence concerning the appellant's military training and the similarities that the injuries received in such an attack would have with the injuries inflicted upon the deceased. 59. This witness also gave evidence that the appellant had asked him to hold a cucumber so that he could chop it with his folding knife. That evidence supported Samantha Marsh's account that the appellant had a smaller knife than the Ka Bar and that the appellant used the knife in an attack as he was actively preparing for it shortly before the death of the deceased. 60. The Crown also led a substantial body of circumstantial evidence at trial notionally in six discrete categories. (1) The appellant's presence in Victoria Avenue so soon after the murder. 1. This has been referred to already. (2) The accused disposed of three backpacks, a bum bag, a jacket and other items of clothing in the days following the murder. 1. It was the Crown case that the appellant disposed of a number of items including a jacket, a bum bag and three backpacks following the murder. This was in addition to the clothing, the gloves and the flick knife that he disposed of directly after the murder when fleeing towards Victoria Avenue. This dispossession by the appellant of his belongings was on the Crown case borne out of the appellant's overwhelming preoccupation to rid himself of any item which may connect him to the crime scene. 2. The various images of a male depicted on a video compilation show him wearing a jacket when first seen on the CCTV footage and carrying a bum bag. Later in the same footage the male no longer has the bum bag and is no longer wearing the jacket. Samantha Marsh said that when she met the appellant at 7:00pm he was wearing no jacket even though it was really cold that night. The video footage shows the male apparently disposing of something into a bin at Chatswood Chase. This was said to be the bum bag. 3. The appellant also disposed of three backpacks after the murder. The first was said to be the one he was seen with at the murder scene by the Bevans and by Mrs Hernandez. That backpack was known to Samantha Marsh but she never saw it after the death of the deceased and it was never located by police. This first backpack is not seen to be carried by the appellant in CCTV footage. 4. At about 10:30 am on 28 April 2010 the appellant went to Chatswood Chase and bought another backpack. He put the backpack that he had brought with him in the bin. When asked by police why he disposed of that second backpack the appellant said that a motor vehicle collided with him when he was riding his bike. The backpack was damaged in the collision although he was not injured and the bike was not damaged. Two days later the appellant disposed of the new backpack which he had bought on 28 April 2010 in a bin outside his premises in Mowbray Road. He returned to Kmart to buy a fourth backpack on 30 April 2010. The appellant told police that he did that because the one that he had previously bought on 28 April 2010 and thrown away was too small for his needs. He bought another one which he thought was bigger but in fact it turned out to be the same size. 5. It was the Crown case that these explanations given by the appellant were fictitious and that the real reason the appellant sought to dispose of the numerous backpacks, the bum bag and the jacket was because he was completely consumed with the idea that there may be a forensic link between those items and the death of the deceased. This became almost obsessive behaviour as the paranoia about a potential forensic link between himself and his belongings and the crime scene mounted. 6. It was the Crown case that the appellant's behaviour in throwing away these particular items was entirely consistent with his behaviour on the night of the murder when he jumped in the swimming pool and washed himself, got changed in the downstairs laundry and asked for a new set of clothes and a rubbish bag to be brought to him. It was also consistent with the fact that he threw away the wet clothes and flip flops and washed his hands many times in the kitchen before taking a shower. (3) Motive 1. There was a significant amount of evidence that the appellant owed a large debt to his former wife for outstanding child support. United States authorities would not issue him with a new passport whilst the child support debt remained. The appellant obtained a 457 visa through his work as a registered nurse at Royal North Shore Hospital but that visa was put in grave jeopardy when his contract of employment ceased in February 2010. 2. The appellant wrote an email to a Fathers' Helpline on 18 May 2010 about his position regarding the passport renewal while having a child support debt. He excused his language and wrote "….I'm about as fucked as a man can be….I have only one page left in my passport and I read that if you're more than 2,500 USDs behind in your child support payments the Government can seize your passport…". 3. A substantial body of evidence was led by the Crown about the appellant's many attempts to obtain positions in various hospitals. He tried for a large number of nursing jobs but was unsuccessful. He blamed the deceased for giving him a bad reference and spoke of her in disparaging terms. As at 27 April 2010 he had been out of work for two months and 17 days. (4) The appellant's fanciful story to the Mormons and Clementine Cuneo. 1. On 14 May 2010 at about 4:15pm the appellant invited two elders from the Mormon Church who had previously befriended him to his apartment in Mowbray Road. They arrived with their supervisor at about 4:30pm. 2. It was the Crown case, based on the evidence of Samantha Marsh, that the appellant thought that there was a listening device planted in the apartment. Nonetheless he proceeded to tell them about "the service" that had picked him to take the blame for the murder of a woman near there. "The service" would take his DNA and fingerprints and use them presumably to set him up. He said that he would probably be arrested for murder soon but his family would be paid for him taking the blame. 3. The appellant cultivated contact with a Daily Telegraph journalist Clementine Cuneo in the days following the murder of the deceased when there was overwhelming media interest in the story. He met up with her several times and they had various conversations. On 18 May 2010 the appellant spoke at length with Ms Cuneo on the telephone and the conversations were recorded by lawful warrant. 4. The appellant told Ms Cuneo that all of the paperwork that police had seized from his home that day was "bogus". He said that the paperwork was made for him, he had never worked in the "kind of military the United States endows" but he had sold his services to the "highest bidder". He said that he was being paid by a "service" to take the blame for the deceased's murder as he needed the money. 5. The appellant also told Ms Cuneo that he had prostate cancer, did not have much longer to live and that "the service" knew that. It had started "months and months and months ago" when "the service" realised he had cancer. He said that the plan involved being arrested, going to gaol and then his family would get the money. 6. It was the Crown case that this story was a lie that the appellant, with full knowledge that he was responsible for the death of the deceased and fearful that his arrest was imminent, had made up in an attempt deliberately to put the police off the track and to divert the investigation away from him. (5) Similarities between the sentry attack manoeuvre taught to United States Marines and the way in which the appellant practised a manoeuvre on Samantha Marsh and her brother and the way in which the deceased was killed. 1. This discrete category of circumstantial evidence has already been discussed. (6) Flight 1. Ms Khedjia Straub worked at Flight Centre in Chatswood. On 10 May 2010 the appellant went to the business and paid a deposit on the purchase of a flight to the United States. He did not pay the balance for the flight. 2. On 19 May 2010 the appellant again attended Flight Centre wanting to buy a one way ticket to the United States. He wanted to leave in a couple of days and suggested 25 May 2010. Subsequent searches for flights and prices revealed that it was cheaper to buy a return ticket than to buy a one way flight. 3. It was the Crown case that the appellant, attempting to leave Australia hours before he was arrested and without his wife, demonstrated that he was fearful that he was about to be apprehended. 4. It is difficult not to be satisfied that the Crown presented an overwhelming case at trial consisting of both direct evidence and multiple categories of circumstantial evidence. Samantha Marsh gave a compelling account of a confession made to her by the appellant shortly after the murder occurred. Her evidence was strongly supported by independent witnesses. The circumstantial case was equally powerful. 5. In Soames v R [2012] NSWCCA 188 at [47] – [48] the Court said this: "[47] The principles to be applied in a consideration of this ground are well settled: M v R [1994] HCA 63; (1994) 181 CLR 487, MFA v R [2002] HCA 53; (2002) 213 CLR 606; SKA v R [2011] HCA 13; (2011) 243 CLR 400, and R v Nguyen [2010] HCA 38; (2010) 85 ALJR 8. [48] In M v R, at 493, and 494 - 495, the High Court stated:- 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt...' [49] It is not sufficient in order to discharge this function to determine whether there is evidence upon which a jury could have convicted. The question is whether the jury ought to have experienced a reasonable doubt." 1. In determining a ground of appeal based on an unreasonable verdict, the court is to make an independent assessment of the evidence both as to sufficiency and quality and to determine if it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty. In Raumakita v R [2011] NSWCCA 126 the applicable principles were reaffirmed at [31] – [32]: "[31] In determining a ground of appeal which asserts, for the purpose of s 6(1) Criminal Appeal Act 1912, that the verdict was unreasonable or cannot be supported having regard to the evidence, this Court is required to apply the test set down in M v The Queen [1994] HCA 63; 181 CLR 487 at 493, and restated in MFA v The Queen [2002] HCA 53; 213 CLR 606. The Court is to make an independent assessment of the evidence, both to its sufficiency and quality. This involves a question of fact. The Court is to determine whether the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the Appellant was guilty. The central question is whether this Court is satisfied that the Appellant is guilty of the offence charged in the first count: Morris v The Queen [1987] HCA 50; 163 CLR 454 at 473; SKA v The Queen [2011] HCA 13; 85 ALJR 571 at 575 [11]-[14], 576-577 [20]-[22]. [32] In exercising that function, the evidence ought not be considered piecemeal: The Queen v Hillier [2007] HCA 13; 228 CLR 618 at 637-638 [46]-[48]; The Queen v Keenan [2009] HCA 1; 236 CLR 397 at 435 [128]. This Court is required to consider the totality of evidence before the jury. This involves an assessment of direct evidence of witnesses, and inferences to be drawn from a combination of events: Rasic v R at [29]." 1. I have referred at some length to the evidence at the trial. I have attempted to make my own independent assessment of that evidence, both as to its sufficiency and quality. No part of my review leads me to have the slightest doubt about the guilt of the appellant. There is in my view no basis for any doubt that the evidence is such that it was open to a jury to conclude beyond reasonable doubt that the appellant was guilty. Whether as a formulation of the direct evidence alone or in combination with the circumstantial case mounted by the Crown at trial, I am left with no reasonable doubt, and none that I consider a jury properly instructed ought to have, or even might have, entertained, concerning the guilt of the accused. The Crown submitted that the case at trial was "irresistible". I agree. Moreover, there appear to be no further or other factors that demonstrate any lack of probative force which could lead this Court to conclude, even making full allowance for the advantages enjoyed by the jury, that there was a significant possibility that an innocent person has been convicted. Ground 3 1. The appellant submitted that the evidence properly admitted at the trial did not establish beyond reasonable doubt that he caused the death of the deceased. The Crown's circumstantial case included the following matters: 1. The appellant's alleged confession to his wife. 2. The detail which the appellant's wife furnished in connection with that confession. 3. CCTV footage of the appellant in the vicinity of the incident at the relevant time. 4. The appellant's disposal of the bum bag and various other items that might have contained trace evidence. 5. Evidence of the appellant's motive to kill the deceased. 6. Listening device evidence concerning the appellant's supposed membership of an organisation suggesting falsely that he was implicated in the killing. 7. Evidence from the appellant's brother in law that the appellant simulated a knife attack technique upon him in the weeks prior to the death of the deceased, which was said to be similar to the technique apparently used to kill her. 8. Evidence from the appellant's wife in her ERISP that the appellant had simulated a knife attack technique on her involving a cut to the throat. 9. Evidence from Kelly Dee that the appellant had said to her that he knew how to kill someone by slitting his or her throat. 10. The appellant's inquiries about purchasing a one way ticket to Los Angeles. 1. The appellant contended that these pieces of evidence neither alone nor collectively were capable of establishing the Crown case beyond reasonable doubt. He referred this Court to Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [41] and [44] as follows: "[41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself. … [44]… No single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty." 1. It was implicit in the appellant's submissions on this ground that the knife training and attack evidence had not been properly admitted. The Crown's response 1. The Crown maintained that the evidence that the appellant received knife attack training in the USMC was admissible. Even if that evidence were wrongly admitted, the Crown submitted that the appeal would still be dismissed as no substantial miscarriage of justice has occurred. 2. For the proviso to apply it is necessary for the Court to be satisfied beyond reasonable doubt that evidence properly admitted at the trial proved the guilt of the accused: see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [44]; Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [226]; Campbell v R [2014] NSWCCA 175 at [262]. 3. The Crown submitted that the Crown case at trial was, even in the absence of the appellant's military training with knives, compelling, overwhelming and irresistible and that this is a case in which the proviso ought to be applied. Consideration 1. As already discussed, I have undertaken my own independent assessment of the evidence. I have made due allowance for the fact that I did not see or hear the various witnesses who gave their evidence in the Crown case, nor did I have the opportunity to form any view about their evidence based upon demeanour or reaction to cross-examination. I have been limited to the transcript of that evidence, which I have referred to for the purposes of my consideration. 2. Having performed that undertaking, I am entirely satisfied that no substantial miscarriage of justice has occurred. I am persuaded that the evidence properly admitted at the trial proved the appellant's guilt beyond reasonable doubt of the murder of the deceased. This was in the scheme of cases of this type what can fairly be described as an overwhelming Crown case. I am of that view even if my conclusions about his Honour's decision to admit the knife attack video evidence that the appellant complains was improperly admitted were found to be incorrect. Put another way, I am of the view that the jury would have reached the same conclusion about the appellant's guilt even if they had heard no evidence about his USMC training and service in general or evidence in the form of the Tyler video in particular. 3. This is a case in which there has been no substantial miscarriage of justice and the proviso ought to be applied. SENTENCE 1. The appellant also seeks leave to appeal against his sentence upon the single ground that the sentence is manifestly excessive. 2. Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 provides as follows: "61 Mandatory life sentences for certain offences (1) A court is to impose a sentence of imprisonment for life on a person who is convicted of murder if 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." 1. The appellant referred to R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557 and to the remarks of Wood CJ at CL at [69] as follows: "[69] Obviously, the murder of three very young, vulnerable, innocent, and entirely defenceless children, while they were asleep, by their father, involves the grossest breach of trust imaginable. Left unexplained, or unmitigated by circumstances personal to the offender which might provide some reason for his resort to such extreme violence, or where accompanied by deliberate cruelty and suffering to the children, such a case could properly fall within the ambit of s 61(1) of the Crimes (Sentencing Procedure) Act and, as such, justify life sentences." 1. The offender in that case was originally sentenced to three life sentences. This Court allowed the appeal and resentenced the offender to a series of partially accumulated determinate sentences totalling 34 years with an effective non-parole period of 27 years. 2. The appellant relied upon Merritt as support for the contention that while sentencing for murder necessarily remains a discretionary exercise, a particular instance of that crime devoid of deliberate cruelty to, and suffering by, the deceased will fall outside the scope of the common law "worst category of cases" test and the s 61(1) test as well. Applying those tests to this case, the appellant contended that the objective degree of trauma evident to the deceased's body did not automatically give rise to or support an assumption that she suffered in death in the manner contemplated by this Court in Merritt. It remained a matter for the Crown to prove beyond reasonable doubt: Olbrich v The Queen [1999] HCA 54; (1999) 199 CLR 270. 3. The appellant submitted that the factors that removed this case from the worst category test and the terms of s 61(1) were the following: 1. The absence of a motive of sexual or other gratification. 2. The absence of torture as a precursor to the killing. 3. A single victim as opposed to multiple victims. 4. The appellant's lack of any prior convictions for any previous offence. 1. The appellant also pointed to the Crown concession in written submissions on sentence that the instant offence "falls in a range somewhere between and including the circumstances which would justify a life sentence pursuant to s 61(1)…and circumstances which fall just short of that". The appellant contended that his offence does not fall within the worst category of cases or s 61(1) of the Act and that a determinate sentence should be imposed, somewhere in the vicinity of 32 years with a non-parole period of 24 years. If dated from 19 May 2010, the appellant would not be entitled to be released to parole before the age of 72 years. The Crown's response 1. His Honour carefully reviewed the facts before him. His findings included that "the infliction of these hideous wounds on Ms Beets was extraordinarily cruel". His Honour also referred to the "callousness with which the murder was committed", demonstrated by the appellant's calm and composed demeanour on the CCTV footage taken shortly after the murder. His Honour found that the murder was meticulously planned, and that the manner of the killing was "cruel, merciless and abhorrent". 2. His Honour found little by way of mitigation apart from the appellant's lack of prior convictions and his USMC service and his nursing service. Nonetheless his Honour found that the appellant's prior good character was "completely overwhelmed by the objective seriousness of his offending". His Honour found that the appellant demonstrated neither remorse nor contrition. He found beyond reasonable doubt that there was a risk that the appellant would offend again by killing a person whom he perceived to be seriously interfering with his plans or who may have been causing him distress. 3. His Honour referred to s 61(1) of the Crimes (Sentencing Procedure) Act and to the authorities relating to the worst category of offending. He found that the level of the appellant's culpability was so extreme that the community interest in retribution, punishment, community protection and deterrence could only be met by a sentence of life imprisonment. 4. The Crown submitted that the sentence imposed was not manifestly excessive having regard to the following factors: * the overall criminality involved in the offence before his Honour which he described as a "terrible crime" and found to be "at the top of the range for the offence of murder". * the extraordinary level of preparation that the appellant embarked upon before the murder which included: 1. stalking the deceased by attending her home on several occasions; 2. asking his brother in law to come with him to the deceased's home to keep watch for him; 3. ringing the deceased from pay phones several times to establish her movements; 4. conducting his own surveillance at the deceased's home to see how he could ambush her; 5. buying clothes from a second hand store to wear while he killed the deceased; 6. obtaining and practising chopping and slicing with two knives before the killing; 7. practising the sentry attack manoeuvre on Samantha Marsh and her brother before the killing; 8. attending the home of the deceased shortly prior to her return on the evening of 27 April 2010 to disable the sensor light and lie in wait for her; 9. telling the deceased that if she stopped screaming he would not hurt her but cutting her throat when she did so; 10. the extreme level of brutality used by the appellant in killing the deceased by slashing her neck several times with complete severance of the soft tissue at the front of her neck with cuts going through to the bone; 11. the appellant's motive to kill the deceased because he believed that she was compromising his attempts to gain employment in the nursing profession and in turn that she was an obstacle to the retention of his 457 residential visa. 1. The Crown submitted in these circumstances that it was plainly open to his Honour to make the findings that he did and to impose a life sentence. Consideration 1. It is trite to observe that there can never be a correct sentence in any particular case. As a definitively discretionary undertaking, the final decision by a judge about what sentence to impose can only be attacked by reference to a comparison between the decision arrived at and the material available to inform it. In the present case the appellant contends that his sentence is manifestly excessive or, in the absence of the identification of specific errors committed by the trial judge in forming his view, that no proper exercise of a sentencing discretion based upon the material before his Honour could have produced the same result. The appellant therefore contends that a review of his Honour's decision must lead to the conclusion that it was not open to him in the particular circumstances of this case to impose a sentence of life imprisonment. 2. It is also timely to observe that it is not to the point that another judge or other judges would, or might, have reached a different conclusion based upon the same evidence. Such an approach is erroneous for the obvious reason that it fails to recognise the fundamental characteristics of a discretionary decision. If the evidence before his Honour was such as to satisfy him that the level of culpability in the commission of the offence was so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence, then it is beside the point that others may not have formed the same view. 3. In my opinion it was entirely open to his Honour upon the evidence before him to impose a sentence of life imprisonment upon the appellant. The level of criminality exposed by the evidence in this case is extreme. Taken alone, the significant individual features of the crime are chilling. There is evidence of the appellant's motive that suggests a single minded decision to take a lethal course of action either for revenge or self-interest or both. There is an associated high level of relatively sophisticated planning. There is a similar high level of violence and the infliction of terrible wounds in what was clearly a sustained and merciless attack upon an innocent and defenceless victim. These matters combine to raise the awful spectre of future dangerousness to the community, evidenced by the disproportional relationship between the motive for the killing and its realisation. 4. In combination these matters suggest a murder falling into the worst category of case, and distinctly within the terms of s 61(1). If the appellant's emphasis is upon the absence of cruelty, his Honour's remarks on sentence make it clear that he specifically took this factor into account in any event. His Honour said this at [34]: "[34] The infliction of these hideous wounds upon Ms Beets was extraordinarily cruel. The offender told Samantha Marsh that he cut Ms Beets' throat many times, as he tried to pretend it was the work of an amateur, He also said that the knife was not as sharp and as good as he expected." 1. His Honour's conclusion was at [59] in these terms: "[59] The offender meticulously planned the murder of Ms Beets as he perceived that she was an obstacle to the retention of his 457 visa. The manner in which he killed her was cruel, merciless and abhorrent. The offender's crime falls within the worst category of murder. All four of the indicia in s 61(1) are present. There is nothing in the subjective circumstances of the offender, which justifies a lesser sentence." 1. I am unable to conclude that his Honour's conclusions were unwarranted or unsupported. I am not satisfied that the sentence of imprisonment for life imposed by his Honour was manifestly excessive. Orders 1. I would propose the following orders: 1. Dismiss the appeal against conviction. 2. Grant leave to appeal against sentence but dismiss the appeal. 1. ADAMSON J: I have had the benefit of reading the draft reasons of Harrison J. I have reviewed the whole of the evidence. I agree for the reasons given by Harrison J that it was open on the whole of that evidence for the jury to be satisfied beyond reasonable doubt that the applicant was guilty of murder. The imposition of a life sentence was within the discretion available to the sentencing judge. No error has been established in the exercise of that discretion. I agree with the orders proposed and with his Honour's reasons. ********** 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: 16 July 2015