Supreme Court New South Wales Medium Neutral Citation: R v Blackman (No 3) [2018] NSWSC 405 Hearing dates: 3 April 2018 Decision date: 04 April 2018 Jurisdiction: Common Law - Criminal Before: Button J Decision: (1) "Prasad invitation" accepted (2) Verdicts of not guilty returned on all counts Catchwords: CRIMINAL LAW – count of murder – alternative counts – special hearing – judge alone – application for Prasad direction – asserted inadequacy of evidence against accused – Crown case incapable of proving beyond reasonable doubt that accused was the perpetrator – application accepted – accused acquitted of all counts Legislation Cited: Evidence Act 1995 (NSW), s128 Mental Health (Forensic Provisions) Act 1990 (NSW), s 21 Cases Cited: R v Blackman [2018] NSWSC 395 R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 Seymour v The Queen (2006) 162 A Crim R 576; [2006] NSWCCA 206 Category: Procedural and other rulings Parties: Regina Gary Clifford Blackman Representation: Counsel: P Rosser QC (Crown) J Watts (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) Universal Law (Accused) File Number(s): 2014/00104664 Publication restriction: Nil. Judgment Introduction 1. At the conclusion of the tender of all of the evidence in this judge-alone special hearing – in which Gary Clifford Blackman (the accused) has been arraigned on a count of murder and two alternative counts – defence counsel submitted that I should "give myself" a "Prasad invitation", as discussed in the decisions of R v Prasad (1979) 23 SASR 161; 2 A Crim R 45, R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118, and Seymour v The Queen (2006) 162 A Crim R 576; [2006] NSWCCA 206. 2. Oral submissions were thereafter received from both counsel, and I reserved my judgment about whether as the tribunal of law I should give the invitation, and, if so, whether as the tribunal of fact I should accept it, thereby putting an end to the trial. 3. Two bases for the invitation were relied upon by defence counsel. The first was the asserted inadequacy of the state of the expert medical evidence with regard to the cause of the death of the deceased. That basis can be put to one side, because I do not consider that the expert evidence, in support of the Crown case that the violence meted out to the deceased caused her death, was so weak or otherwise unsatisfactory that it should found such an invitation. 4. The other basis of the application was the asserted inadequacy of evidence that it was the accused and the accused alone (that being the Crown case) who administered a very severe beating to the deceased in April 2014 that allegedly caused her death. That submission requires deeper analysis. 5. Section 21 of the Mental Health (Forensic Provisions) Act 1990 (NSW) speaks of a special hearing by judge alone replicating as closely as possible a trial by jury, and of course a jury provides no reasons in accepting or declining such an invitation. 6. As well as that, I have already delivered a very substantial judgment with regard to the admissibility of certain evidence in the Crown case (R v Blackman [2018] NSWSC 395), and many of the findings of fact that I made for that purpose are relevant at this stage of the special hearing. I do not believe that it is necessary for me, laboriously and formalistically, to repeat or incorporate all that I have written in that publicly available judgment in this judgment. 7. Nevertheless, despite those two aspects of the matter, I believe that it is incumbent upon me to provide reasons – albeit reasonably concise ones – for my response to the submission of defence counsel, and to deliver them orally in open Court. Background 1. The background of the matter may be shortly stated. In April 2014, the accused and Ms Nicole Weate (the deceased) were living on a rural block of about 3 acres, some distance from the Northern Rivers town of Murwillumbah, near the Queensland border (the property). There were two buildings on the property: a substantial three-storey home that was referred to during the proceedings as "the big house", and a cabin closer to the road that was referred to as "the shed". Although the premises had been purchased some years previously by the accused and his sister, Ms Jennifer Smith, with the optimistic purpose of exploring more sustainable approaches to cultivation, by April 2014 the property was described by a neighbour as being in a disgraceful condition, and regrettably its inhabitants were living in squalor. 2. The accused was then in his early 60s. He had had a long-standing problem with alcohol, and had suffered cognitive impairment as a result. The deceased, then aged 53 years, had developed a problem with prohibited drugs from an early age, and had consequently suffered a very damaged and disrupted life. The two of them had met in a hotel in Murwillumbah about a year before, and commenced a romantic relationship. By the time of the events in question, each of them was abusing both alcohol and crystal methylamphetamine (ice). 3. Also living there with her son was Ms Billie Rose Bignell, a young woman who had recently suffered mental problems significant enough for her to spend time in a hospital. She was also in the habit of abusing ice. 4. Another occupant of the property was Mr Thomas Miringaorangi, aged in his early 60s, an old friend of the deceased. He had met the accused and the deceased some weeks before, and moved into the property that very evening. He was a long-standing abuser of prohibited drugs, including ice and heroin, and a self-professed inhabitant of the criminal milieu. Aspects of Crown case 1. The Crown case is that, on the evening of Tuesday 1 April 2014, the accused administered a very brutal beating to the deceased. On the Wednesday morning, Ms Bignell saw the deceased with severe injuries redolent of such a beating. 2. The Crown case is also that it is possible that the accused administered a further beating on the Wednesday evening. Whether that occurred or not, the Crown case is that the deceased had died by midday on Thursday 3 April 2014. 3. During the trial, Mr Miringaorangi gave evidence and was cross-examined at length. All of that is recounted and analysed in my earlier judgment in very great detail, and I shall not repeat myself now at unnecessary length. Suffice to say he implicated the accused as the assailant, and had done so in a recorded interview with detectives as long ago as Saturday 5 April 2014. It was put to Mr Miringaorangi by defence counsel that much of his evidence was a lie, and indeed that it was he, not the accused, who beat the deceased to death. 4. A number of aspects of the evidence, external to the testimony of Mr Miringaorangi, were relied upon by the Crown in support of its contention. 5. The first was that the accused and the deceased were in a romantic relationship that was argumentative and volatile. Each of them had a serious problem with alcohol, was abusing prohibited drugs, and both had seemingly suffered a degree of cognitive impairment. Having said that, the Crown prosecutor accepted that the evidence appeared to be that the relationship did not feature frank violence between the two of them. 6. The second was that the accused had developed a sexual jealousy with regard to the deceased that was very largely irrational. By way of example, he accused a visitor to the property, Mr Kip Johnson, in that regard. Having said that, there is little or no reliable evidence that the accused physically acted upon any such belief. And the undisputed evidence from Mr Kip Johnson was that it was Mr Miringaorangi who made the same allegation against him, and used it as the basis for intimidation and extortion. 7. The third was that, at some stage well before the events in question, the deceased claimed to Ms Bignell that she had suffered a black eye at the hands of the accused. Having said that, Ms Bignell inspected the face of the deceased and saw nothing. As well as that, I think that the reliability of things that the deceased had to say is inevitably called into question, due to the volatility of her relationship with the accused, combined with her mental and emotional problems, and combined with her abuse of alcohol and a notoriously pernicious prohibited drug. 8. The fourth was the fact that, after she had been beaten, the deceased said to Ms Bignell words to the effect that Mr Miringaorangi had more self-control than the accused. Having said that, the Crown prosecutor described that statement as "cryptic". It is also to be noted that that was said shortly after Mr Miringaorangi had made seemingly intimidatory statements to the deceased insisting upon his innocence, and may well have been the product of those statements. 9. The fifth was the fact that, when a neighbour, Mr Brent Gallagher, visited the shed on Thursday 3 April 2014, the deceased had already passed away. Somebody had placed her in a bed inside the shed with the covers pulled up to her chin in order to hide her death. The accused and Mr Miringaorangi were both present, and one or other of them said words to the effect that the deceased was merely resting to Mr Gallagher. 10. Having said that, the simple point to be made is that Mr Gallagher was not clear whether it was indeed the accused or Mr Miringaorangi who sought to hide the death of the deceased by that statement. The other aspect is that by that time someone had placed sheets and blankets around the windows of the shed, no doubt in an effort to avoid people seeing the deceased. Due to his state of physical health at that time, which I shall discuss in more detail shortly, it is impossible to accept that the person who did that was the accused. 11. Another inculpatory aspect of the evidence was that, in her "video walk-around" of 7 April 2014, Ms Bignell told police that, when Ms Bignell had asked the deceased on Wednesday 2 April 2014 who had assaulted her, the deceased replied "both". An immediate impediment to acceptance of that proposition is that, although Ms Bignell gave the police a detailed statement about all aspects of the matter on Saturday 5 April 2014, her clear written position at that stage was that, on enquiry, the deceased had said nothing. 12. The final external circumstantial aspect was the evidence that, later on the Thursday, both the accused and Mr Miringaorangi falsely told Ms Bignell that the deceased had left the property, and caught a bus home. If accepted as a lie evidencing consciousness of guilt, that could implicate the accused. Having said that, bearing in mind my findings below about the character and presentation of Mr Miringaorangi; the fact that the accused was a cognitively impaired alcoholic; and the fact that he had been described by a neighbour as "almost a simpleton" and "the most agreeable man" he had ever met, I consider that it is impossible safely to accept that that was the motivation of the accused in saying such a thing. 13. Turning now to the centrepiece of the Crown case, the Crown prosecutor accepted that I would need to be satisfied beyond reasonable doubt of the evidence of Mr Miringaorangi about a crucial matter before I could find the accused guilty of murder. In other words, acceptance of the following, to the extent that it spoke of a circumstance inculpatory of the accused, was characterised by the Crown prosecutor as an "indispensable intermediate fact". 14. That was the assertion of Mr Miringaorangi that, on the Thursday evening, he entered the shed to find the accused sitting inside and the deceased lying naked on the floor. Mr Miringaorangi claimed that he tried to administer first aid to the deceased. According to Mr Miringaorangi, the accused then spoke of the deceased in harshly derogatory terms, and insisted that Mr Miringaorangi dispose of the body. Apart from asking the accused what had happened, the position of Mr Miringaorangi was that he expressed his agreement with what the accused requested, and simply picked up the body of the deceased, placed it on a bed, and cleaned some blood from her face. 15. Speaking generally, such a mundane turn of events in those extraordinary circumstances seems most unlikely. And in light of my findings below, I reject the proposition that Mr Miringaorangi, in particular, responded so meekly to the violent death of his female associate of 30 years. 16. In short, there is certainly some evidence implicating the accused in the death of the deceased; it is no doubt for that reason that no application was made for a verdict by direction by defence counsel. And speaking generally, for the purposes of a Prasad invitation, I do not think that I should approach the Crown case overly critically at this stage, for the simple reason that I am considering whether I wish to be assisted by the full addresses of counsel prior to considering my verdict in the usual way. Even allowing for that expansive approach to the Crown case at this stage, however, the evidence implicating the accused is, in my opinion, generic and weak. Alternative rational hypothesis consistent with innocence 1. To be weighed against that weakness in the Crown case, in circumstances where it is incumbent upon the Crown to prove, beyond reasonable doubt, that it was indeed the accused and no-one else who bashed the deceased at least once causing her death, are the following factors. Again, they were discussed in great detail in my earlier judgment, and the following is merely something of a conspectus. Aspects of position of Mr Miringaorangi 1. First, Mr Miringaorangi was also living at the property. I am satisfied that he was in a romantic and sexual relationship with the deceased, and had supplanted the accused to a large degree. 2. Secondly, the evidence of Mr Miringaorangi was inconsistent on countless points with the undisputed evidence of many other witnesses in the trial. 3. Thirdly, his version of events and circumstances – given in a recorded interview with detectives, a subsequent statement to police, his evidence at committal, and in his examination-in-chief and cross-examination, has suffered from gross inconsistency. Taking his evidence as a whole, I do not accept that Mr Miringaorangi is a witness of truth. 4. Fourthly, Mr Miringaorangi has, over an extended period, both before and after April 2014, shown himself to be a person of violence, and, on occasions, a person of serious violence. Quite apart from his criminal record, his evidence was that, whilst living at the property, he was in possession of two pistols and suitable ammunition, and was the "security" with regard to a crop of cannabis that was growing there. 5. Significantly, he spoke to occupants of, and visitors to, the property of murders, past and contingent. 6. Fifthly, more than one witness spoke of the relationship between Mr Miringaorangi and the deceased as showing a severe power imbalance marked by intimidation of the deceased by him. 7. Sixthly, the demeanour of Mr Miringaorangi in Court was entirely consistent with the above: he presented as a person who seeks to use threats and violence in order to get his way. 8. Seventhly, he also presented in the witness box as a person who is prone to bouts of irrational anger. 9. Eighthly, Mr Miringaorangi has taken a number of steps that could be construed as a distancing of himself from the deceased and her death. They include the following. 10. He falsely denied before me that he was in a sexual relationship with the deceased at the time of her death. 11. After the accused was hospitalised on Friday 4 April 2014, Mr Miringaorangi visited him there the next day in the company of another person and whilst attempting to be in possession of a hammer, and threatened the accused with violence unless he the accused confessed to the murder. He was sufficiently keen to speak to the accused again to travel to Tweed Heads Hospital at a later stage. 12. Before visiting a police station on the same Saturday and implicating the accused, he changed out of the boots that he was in the habit of wearing at the property and into a pair of running shoes; an inference available on the evidence is that the deceased had been brutally kicked to the face and torso on the Tuesday evening, and perhaps also on the Wednesday evening. 13. After the deceased was seen to be grossly injured on the Wednesday, and receiving aid from Ms Bignell, he used a pretext to ensure that the deceased would not be alone with her sister, to whom, one could infer, she might well reveal the identity of the perpetrator. 14. Mr Miringaorangi falsely claimed that, in general, he had been sleeping in the big house, as opposed to the shed, for weeks, and, in particular, that he slept in the big house on the Wednesday evening. The significance of that is that one can infer that the fatal beating or beatings were administered in the shed. 15. He falsely claimed that, on Wednesday 2 April 2014, the deceased named the accused as her assailant in the presence of a visitor to the property, Mr Liam Emzin. 16. Finally on this particular point, Mr Miringaorangi sought to paint a false picture of the accused being physically well at the time of the assaults on the deceased, when patently he was not. 17. Ninthly, on the Wednesday evening, in the presence of Mr Liam Emzin and the grossly injured deceased, Mr Miringaorangi obtained a belt from a wardrobe inside the shed, wrapped it around his fist, and said to the deceased "You like my games, don't you Nikki?" 18. Relatedly, it is significant that the autopsy revealed a number of triangular marks to the face of the deceased, which one can safely infer were inflicted during the beating or beatings. The forensic pathologist who conducted the autopsy expressed the opinion at the committal that a belt or belt buckle could perhaps have inflicted that triangular pattern. 19. Tenthly, it is not irrelevant that, when interviewed by detectives on Saturday 5 April 2014 (that is, a very short time after the infliction of the beating or beatings), Mr Miringaorangi was seen to have a number of injuries to his hands, and gave a very odd explanation for some of them. 20. Eleventhly and finally at this stage, Mr Miringaorangi accepted in cross-examination that his chronic abuse of ice at the relevant time rendered him psychotic and paranoid (quite apart from the schizophrenic illness that it seems he has suffered at stages of his life). There is evidence supportive of that, not only in the form of his paranoid belief on the Friday evening that the property was being invaded by a large number of persons, but also in his grossly disturbed demeanour in the disk of his recorded interview with detectives on the Saturday. Aspects of position of the accused 1. To be weighed against those factors are the following attributes of the accused at the relevant time. 2. First, he was undoubtedly an alcoholic who was cognitively impaired. And far from being a forceful figure, apart from drunken arguments with the deceased and general obnoxiousness when drunk, he was a very agreeable person (though no doubt abuse of ice distorted that position to some degree). 3. Secondly, although there is evidence before me that he has a criminal record, it is not perfused with violence. 4. Thirdly, I accept the evidence that, no later than the Tuesday morning, the accused was very ill and weak, as a result of losing a significant amount of weight due to abusing ice, bleeding injuries to his hands, and developing a grossly swollen leg. It is difficult indeed to accept that, at the crucial time, he was in any physical state to administer a brutal beating to anybody. 5. Fourthly, although the accused was and is cognitively impaired, during an intervening period was delusional and psychotic, and of course is currently unfit to stand trial, it was no later than 29 April 2014 that the accused first asserted his innocence of the murder of the deceased. 6. Fifthly, the undisputed evidence of his sister was that the accused was not in the habit of wearing shoes at the property; yet again, it is to be recalled that Ms Bignell spoke of the face of the deceased looking like it had been "booted". Further aspects 1. Finally with regard to an alternative rational hypothesis consistent with innocence, I think it significant that, during an outburst whilst giving evidence, the following passed between Mr Miringaorangi and the accused in open Court: "ACCUSED: It's not true. WITNESS: Who said that, how do you know it's not fucking true I was there. HIS HONOUR: Just a moment, sir. Just answer the questions that the prosecutor asks and then we'll get through the process. WITNESS: It's fucking true, Gary. HIS HONOUR: Just a moment. WITNESS: It's so fucking true, you gronk. HIS HONOUR: Just a moment, sir. We can't have people yelling out in court, neither you nor him, otherwise we are not going to get through the process. WITNESS: Fucking murdering cunt. HIS HONOUR: Take a moment and then we'll-- WITNESS: I should have fucking killed you too you cunt." (TT 62.30 - 63.50) (emphasis added) 1. As I have said in my earlier judgment, the most natural reading of the last line of that interaction speaks for itself. 2. In short, of course it is not my role to make any definitive negative finding with regard to Mr Miringaorangi. I consider that it would be quite wrong for me to do so in any event, in light of the fact that, except with regard to an application for a certificate pursuant to s 128 of the Evidence Act 1995 (NSW), he was unrepresented, and of course enjoyed none of the forensic protections that accrue to an accused person. 3. But the simple fact is that in my opinion there is a substantial body of probative evidence in the special hearing that points away from the accused as being the perpetrator, and towards another person. 4. In summary, I respectfully think that the Crown case is incapable of disproving the rational alternative hypothesis that another person was the perpetrator of the assault or assaults upon the deceased that substantially contributed to her death. To express that more clearly, in my opinion the Crown case is certainly not capable of proving beyond reasonable doubt that the accused was that perpetrator. Conclusion and disposition of special hearing 1. Since an early stage of the Crown case, I have considered that there is a significant possibility that an innocent man has been arrested, charged, incarcerated for almost exactly 4 years, and ultimately arraigned before me on the counts averring murder, in the alternative manslaughter, and in the further alternative the intentional infliction of grievous bodily harm. 2. Since that time, my view about that significant possibility has not changed. That view is, of course, completely incompatible with proof beyond reasonable doubt that the accused murdered the deceased. In those circumstances, the continuation of that state of affairs is not to be countenanced. 3. For the preceding reasons, I accept the submission of defence counsel, I accept my own invitation, I do not wish to hear further from counsel, and I propose to acquit the accused of all counts at this stage. [Verdicts of not guilty to murder, not guilty to manslaughter, and not guilty to inflicting grievous bodily harm with intent to do so were then returned by his Honour. Thereafter, the accused was acquitted of those three counts, discharged upon the indictment, and immediately released.] ********** 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: 04 April 2018