Attwater v R; Maris v R

1. [1]

   THE COURT: In late January 2011 on a remote beach at Iluka, near Port Macquarie, Lynette “Norma” Daley died from blood loss. She had, in the day or so prior to her death, been on a camping or fishing trip with Adrian Attwater and Paul Maris. Much later, on 6 September 2017, both men were found guilty by a jury of offences connected with Ms Daley’s death: Attwater of her manslaughter; each of an aggravated sexual assault upon Ms Daley; and Maris of doing an act with intent to hinder the discovery of evidence concerning a serious indictable offence.

2. [2]

   On 8 December 2017, sentence was imposed on each man by Fullerton J in the Supreme Court. An aggregate sentence of 19 years imprisonment with a non-parole period (“NPP”) of 14 years and 3 months was imposed on Attwater; Maris was sentenced to an aggregate term of 9 years with a NPP of 6 years and 9 months: R v Attwater; R v Maris [2017] NSWSC 1710.

3. [3]

   By Notice of Application for Leave to Appeal dated 13 March 2020, Attwater appeals and, insofar as it is necessary to do so, seeks leave to appeal, against his conviction and sentence. Maris seeks leave, by Notice filed out of time on 12 August 2020, to appeal against his conviction and sentence.

4. [4]

   The appeals were heard before this Court over three days on 14, 15, and 16 October 2020.

5. [5]

   Adrian Attwater advances two grounds of appeal against conviction, being:

6. [6]

   Paul Maris seeks leave to advance two grounds, similarly pleaded:

7. [7]

   The first of the grounds raises a question of law and can be brought as of right by Attwater, pursuant to s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). The leave of the Court is required by Maris, as his proposed appeal was filed out of time. The second ground raises a question of mixed fact and law, and leave is required by each man to advance it, pursuant to s 5(1)(b) of the Act.

8. [8]

   For convenience, each applicant will be referred to by surname, or as “the applicant/s”.

9. [9]

   To place ground 1 in the context of the evidence led at trial and understand the nature of the lies relied upon by the Crown, and to understand the disposition of ground 2, it is necessary to set out the evidence adduced by the Crown at trial against Attwater and Maris, and the evidence adduced for Attwater, in some detail. Neither applicant gave evidence at trial.

The Evidence

1. [10]

   The trial of the applicants proceeded from arraignment before the jury panel on 31 July 2017 to the return of verdicts by the jury on 6 September 2017. The evidence was extensive.

2. [11]

   By way of short overview, the deceased, Ms Daley, knew the applicants socially, and had been in an “on again – off again” relationship with Attwater for a period prior to her death. On 26 January 2011, she accompanied the applicants to Ten Mile Beach (also known as Nine Mile Beach) at Iluka for a camping and fishing trip. The trio travelled in a four-wheel drive “troop carrier” that was owned by Maris. They took a quantity of alcohol with them for the trip, and all three consumed a large amount of liquor over the course of Australia Day.

3. [12]

   Three areas of the beach were identified at trial as significant. “Site One” was at a location around the middle of the beach. Here, the troop carrier was parked and the three stayed at the location for some hours. It was at that location, on a mattress in the back of the troop carrier, on the evening of 26 January 2011, that Attwater thrust his fist or some part of his hand into Ms Daley’s vagina, an act described as “fisting”, causing very significant vaginal injuries that led, some hours later, to her death. At about the same time as Attwater performed that act, Maris inserted his penis into Ms Daley’s mouth. The Crown contended that Ms Daley could not consent to either act of sexual intercourse because she was so affected by alcohol as to be incapable of doing so, or she did not freely and voluntarily consent to the acts because her level of intoxication prevented it; and that the applicants knew that or were reckless as to her lack of consent, or had no reasonable grounds for believing that Ms Daley had consented.

4. [13]

   Afterwards, Ms Daley lay on the mattress in the back of the troop carrier. She was bleeding from the vaginal injuries from which she died some hours later.

5. [14]

   The Crown case against Attwater for Ms Daley’s manslaughter was advanced on two, alternative, bases. Firstly, that the deliberate act of “fisting” which caused her death was both unlawful, as a sexual act to which no consent had been given, and dangerous, in that a reasonable person in Attwater’s position would have appreciated the risk of serious injury inherent in it. Alternatively, the Crown argued that Attwater was criminally negligent in not fulfilling the legal duty of care he owed Ms Daley to preserve her life, after she was injured, by failing to obtain medical assistance for her in a timely manner.

6. [15]

   In the early morning of 27 January 2011, Maris drove the troop carrier towards the northern end of Ten Mile Beach, to a point known as Black Rock, or “Site Two”, and the vehicle and its occupants remained there for some time. At some point not long before dusk the group removed to “Site Three”, where Ms Daley died as a consequence of the vaginal injuries inflicted upon her by Attwater. Also at that location, Maris burned the mattress on which the sexual acts had been committed, and at least one piece of Ms Daley’s clothing, a bra. His destruction by fire of those items was relied upon by the Crown with respect to the hinder offence of which he was convicted.

7. [16]

   At 6.01am on 27 January 2011, Maris placed a telephone call to the Triple 0 operator and asked for an ambulance. Attwater attempted to resuscitate Ms Daley. Ms Daley was either dead or dying at that time.

8. [17]

   An ambulance arrived at Site 3 shortly before 7am, with police officers arriving shortly thereafter. By that time Ms Daley was dead. She was found by the ambulance officers lying naked on the sands of the beach just above the tide line.

9. [18]

   Both Attwater and Maris were interviewed that day, and each gave an account of events that, in part, the Crown relied upon as lies which pointed to the unreliability of each man. Whilst each made an admission to an act of sexual intercourse, much of the remainder of the accounts given by the applicants of the events of 26 and 27 January 2011 were inconsistent with other evidence, and were pointed to by the Crown as lies. This included Attwater’s assertions that, on the morning of 27 January 2011, Ms Daley had walked into the surf for a swim with him, whereupon she suffered a seizure; and Maris’ claims that he had burnt the mattress from the back of the troop carrier only because it was malodorous, and not to destroy evidence of a crime.

10. [19]

    Gordon Davis married Ms Daley’s mother, Thelma Davis, when Ms Daley was very young, and played a father role to her and her siblings. He gave some evidence about Ms Daley’s childhood, before describing a “fit” or seizure he saw her experience about a year before her death. He thought that Ms Daley may have taken some medication related to the fit, perhaps Epilim.

11. [20]

    Over the years Mr Davis had seen Ms Daley at the beach on many occasions, but had never known her to swim in the ocean. When she swam in the river, she always wore a swimming costume or shorts and a t-shirt, being very conscious of her body.

12. [21]

    He said that Ms Daley had begun using alcohol when she was in her teens, and had developed an alcohol problem. She also used drugs occasionally.

13. [22]

    Ms Daley’s sister, Joanne Daley, confirmed that Ms Daley did not like swimming in the ocean, being scared of monsters she thought were in there. She would stand in the sea in water of knee or waist height, but never swim. She did swim in rivers, and used to wear the clothes she had on when doing so. She generally wore clothing that was modest, and not revealing. Joanne Daley also confirmed that Ms Daley had a problem with alcohol, and she sometimes saw her in the town of Maclean, drunk. She was drunk most days. She had on occasion seen her sister with Attwater drinking at a place in Maclean known as “Fifty cents” and knew Ms Daley to be involved with Attwater “on and off”.

14. [23]

    Adrian Martin had known Ms Daley for about three years by the time of her death, and had been in a relationship with her for two of those three years. He was aware that she did not like swimming in the ocean.

15. [24]

    Mr Martin saw Ms Daley suffer a fit on two occasions and said she had been admitted to hospital on both occasions. He confirmed that she was a heavy drinker and did not take care of herself, often not eating for days at a time, and drinking and smoking regularly. He said that she was homeless in the last year of her life, and stayed at the homes of other people. She used bad language.

16. [25]

    Another of Ms Daley’s sisters, Tina Daley, saw her on 25 January 2011. On that day, Ms Daley showed Tina a bruise that she had below her right breast, but she had no other bruises that Tina could see or Ms Daley mentioned, and no scratches. Tina also saw Ms Daley early on the morning of Australia Day, at about 5am, when she arrived in a troop carrier with Attwater and Maris and two other men.

17. [26]

    Tina observed that Ms Daley was drunk; she was stumbling and her speech was slurred. She smelled of alcohol.

18. [27]

    Craig Peglar was a friend of Maris. He saw Maris at about 9.30 or 10am on Australia Day when Maris called in to Mr Peglar’s home. Mr Peglar was introduced to Attwater and Ms Daley on that occasion. Later that day, at about 3.30pm, Mr Peglar again saw the three as they sat on a log at Back Beach, one of the beaches that made up Ten Mile Beach. He observed that Ms Daley appeared to be intoxicated: “she had a bit of the stumbles up, and wobbles up”. He saw Ms Daley drinking with Attwater and Maris during the hour he and his family were at the beach. When he left, Mr Peglar saw that Ms Daley was stumbling as she walked. Neither Attwater nor Maris seemed to be intoxicated.

19. [28]

    Peter Gallagher knew both applicants. On Australia Day he saw them and Ms Daley sitting in Maris’ troop carrier at the front of a grocery store, Foodworks, in Iluka, at about 4.30 in the afternoon. Mr Gallagher approached the vehicle and spoke with Attwater, who told him that he and his companions were:

20. [29]

    Although Mr Gallagher did not really speak with Ms Daley he observed her to be:

21. [30]

    He characterised her level of intoxication as “near high”. Both men seemed to be a little bit intoxicated.

22. [31]

    In 2011, Raymond Lester owned the service station next to Foodworks in Iluka. At sometime around 5.30pm on Australia Day, he saw a troop carrier with a male seated inside and a male and female outside the vehicle. The woman seemed to be very unsteady on her feet. She was wearing black tracksuit pants and a black bra. She walked with the male towards the Foodworks; the male (Maris) also seemed unsteady in walking. Mr Lester assessed both as highly affected by alcohol.

23. [32]

    Karen Collett was working at Foodworks that day. She saw Ms Daley and Maris come into the store, noticing that they were scruffy, dirty, and well affected by alcohol. Ms Daley had a lot of leaf debris in her hair and stumbled when she walked. In an aisle of the store, Ms Collett saw Maris making sexual gestures towards Ms Daley, thrusting himself against her. Ms Daley did not react.

24. [33]

    They bought some preserved sausage and left. Ms Collett watched them as they went to a four-wheel drive outside. They opened the back of the vehicle and put the sausage in an esky. Maris reached over and pulled Ms Daley’s tracksuit pants down to her knees and, laughing, she pulled them up. He repeated the action and Ms Daley, with her buttocks exposed, yelled out “anyone want a piece of this”. She then pulled her tracksuit pants back up again.

25. [34]

    Pamela Kennedy was also working at Foodworks on the afternoon of Australia Day. She saw Ms Daley and Maris inside the store at about 6pm that day. They made some purchases, but left them behind, causing Ms Kennedy to run after them with their groceries. She watched as they went to a car, where the man pulled the woman’s pants down twice in quick succession, with her quickly pulling them up again.

26. [35]

    Brian Newton was parked near Foodworks at around 5.30pm on 26 January 2011 when a troop carrier pulled up near his vehicle and also parked. There were three people in the front of the vehicle; the person in the centre was a woman. The driver (Attwater) called out to him and Mr Newton, who did not know the occupants of the car, walked to the driver’s window and asked the driver what he wanted. Attwater responded:

27. [36]

    By “this thing” Mr Newton understood the driver to be referring to the lady sitting in the car. He observed the woman to be “in a state”, telling the jury:

28. [37]

    When the comment was made about “this thing” she raised her head and made a sound, “uhhh”. Mr Newton thought the driver was affected by alcohol to some degree, with the male passenger affected to a greater degree than the driver.

29. [38]

    The applicants and Ms Daley drove out to Ten Mile Beach that evening.

30. [39]

    At 6.01am on 27 January 2011 a telephone call was placed to the Triple 0 operator by Maris, who asked for an ambulance to be dispatched to Nine [Ten] Mile Beach. He said:

31. [40]

    He was asked to tell the operator “exactly what happened”, and responded:

32. [41]

    He said that she was not conscious. He continued:

33. [42]

    The operator asked Maris what happened and Maris repeated that “she just stopped breathing”. When asked if she had choked he said she had not. He said “she’s bleeding”.

34. [43]

    The call dropped out and Maris placed a second call at 6.08am. The operator gave instructions for chest compressions to be performed. When again asked what had happened, Maris – who was standing next to Attwater as the latter administered chest compressions as instructed – said:

35. [44]

    Attwater, speaking in the background, added:

36. [45]

    Maris was specifically asked if they had “pulled her from the water” but answered in the negative. As the applicants attempted to follow the first aid instructions given to them, Attwater could be heard to say:

37. [46]

    Of the first aid he and Maris were instructed to administer, Attwater said, “Fuckin’ pretty hard fellas”.

38. [47]

    Leaving the call connected and his telephone set to speaker so that Attwater and the Operator could continue to speak, Maris left and drove up the beach to where he could see another person, intending to ask for help.

39. [48]

    Attwater continued with cardio-pulmonary resuscitation (“CPR”), telling the operator there was “no response”, but he was “not giving up”. He said:

40. [49]

    He told the operator, “I got no pulse”.

41. [50]

    The man Maris saw and brought back to Attwater and Ms Daley was Nicholas Miller. The conversation with the Emergency Operator continued after Maris and Mr Miller arrived. The Operator asked Maris, “It didn’t look like she’d had a fit or anything before it did it”, to which he replied, “Um, no”. Mr Miller estimated the distance between Maris and Attwater at the time as about 2 metres.

42. [51]

    Nicholas Miller had been camping at a campground near Black Rock. He rose before dawn on 27 January and went down to the beach to go fishing. He could see that there was a fire blazing further south down the beach, about a kilometre away. The fire appeared to have considerable fuel, and the flames were the height of a person. He could see the shape of a vehicle and, indistinctly, people, near the fire. He made those observations no later than 5.45am.

43. [52]

    Half an hour after he arrived the sun rose. The sun rose on that day at 6.11am; dawn twilight was at 5.44am. Fifteen minutes or so after Mr Miller’s arrival, at 6.30am, a four-wheel drive approached him. The driver [Maris] called to Mr Miller to come with him as he needed help. Mr Miller got into the vehicle, which turned south and drove back along the beach. The driver’s speech was slurred, he smelt of alcohol, and he was agitated. It was about 6.30am.

44. [53]

    The vehicle stopped along the beach where another man [Attwater] was performing CPR on a naked woman lying on the sand, face upwards, with her feet towards the water, just at the tide line. There were drag marks in the sand leading to her heels. There was a clot of blood of some size on the sand washing about in the tide as it came in and out, close to the woman’s feet. Her body and hair were wet, her lips were dry and appeared dehydrated, and her eyes were closed and sandy. She appeared to have blood on her pubic hair, and there were bruises on her arms, legs, and upper thighs.

45. [54]

    Mr Miller, who was trained in administering CPR, went to the woman and felt for a pulse in her neck. There was none. He then felt her arm and shoulder and found her cold and fairly solid to the touch. He checked her eye and saw no reaction. Attwater told Mr Miller that he had been doing CPR for a while. Mr Miller took over. He could see that Ms Daley was not breathing. Neither Maris nor Attwater told Mr Miller what had happened to Ms Daley; he was not told that she had suffered a seizure. To the Emergency Operator, Mr Miller asked for police to be dispatched, as well as an ambulance, telling him:

46. [55]

    At one point Mr Miller overheard Attwater tell Maris, “I didn’t know a [word not heard] hug could kill you”. Maris told him to shut up. The men gave Mr Miller quick glances as they spoke together.

47. [56]

    Mr Miller thought that Attwater was a little bit intoxicated. Maris was also affected, with slurred speech. Attwater was wearing a pair of jeans which Mr Miller thought were completely soaked.

48. [57]

    Maris left in the troop carrier and returned to Site 3 soon after with two other people to assist. When he returned to the area, he parked the troop carrier on top of the fire pile on the beach. The fire site was close to the waterline and 4 or 5 metres north of Ms Daley’s body. It appeared to have had sand shovelled onto it.

49. [58]

    After having brought Mr Miller to the scene to assist, Maris saw some other people on the beach and went to ask them for help. These people were father and son Fred Knox and Allan Knox. By the time of the trial Fred Knox, who had been elderly, had died. His statement was read to the jury. He was approached by a man in a troop carrier – Maris – who seemed distressed, and asked him and his son to come with him to where there was “a person dying”. Mr Knox asked what had happened and was told, “Oh, you know, we had a few drinks, and we were going for a swim”.

50. [59]

    Having followed Maris along the beach in his own car, Fred Knox saw Attwater – wearing a pair of jeans – leaning over the top of a naked woman lying on the beach administering chest compressions to her.

51. [60]

    His son Allan Knox recalled the man who asked for his and his father’s help as appearing “a little bit panicky”. On arriving at Site 3 he saw another man performing CPR on a naked woman. That man appeared to be intoxicated, and he was “a bit agitated and nervous”. He seemed upset. He was walking around in circles swearing, saying “Where’s the fucking ambulance” and “A great fucking Australia Day”. He said they had been drinking and they were going for a swim.

52. [61]

    An ambulance arrived at Site 3 a few minutes before 7am (at either 6.52 or 6.57am). Adam Jarrett, an ambulance officer for 11 years at that time and an intensive care paramedic for 6, was one of three officers to arrive at the beach. He saw Attwater with Ms Daley performing chest compressions.

53. [62]

    Mr Jarrett checked Ms Daley’s status by first touching and moving her foot. Her foot was cold although rigor mortis had not yet set in. She was asystolic, an indicator of death. In an Ambulance Service patient record card, Mr Jarrett noted “nil vitals”, reflecting his observations of a complete absence of any signs of life. No further resuscitation was performed, the ambulance officers having concluded that Ms Daley was dead.

54. [63]

    Mr Jarrett observed a large clot of blood on the sand that he thought was consistent with a placenta delivery; the ambulance had driven over the clot on arriving at the scene.

55. [64]

    Attwater appeared upset and withdrawn. Mr Jarrett asked him what had happened, and he said:

56. [65]

    Referring to the type of sex he had had with Ms Daley, Attwater referred to “fisting” and indicated by motioning with his clenched fist moving through the encircled fingers of his other hand. The terms Attwater used to describe the act were “fisting” and “spit-roasting”, the latter being a term to refer to “a female engaged in sex between two males”.

57. [66]

    He later spoke to Maris, saying, “It sounds like you were having a wild sex session”. Maris, who appeared “flat” when Mr Jarrett saw him, responded “Yeah, it was pretty wild”.

58. [67]

    David Jeffery was another of the ambulance officers who attended Ten Mile Beach. He made a number of observations of Ms Daley, noting that she was not breathing, had no blood pressure, with skin cold and tinged blue, and was completely unresponsive. He concluded that she was dead. He saw blood around her pubic area and her vagina, and a large blood clot, about 15 centimetres in diameter, close by.

59. [68]

    Mr Jeffery spoke to Maris who told him that they had “wild sex” the previous night and that there was “blood everywhere and there was blood on the mattress”. He later spoke with Attwater who volunteered, “we had wild sex last night”.

60. [69]

    The third paramedic was Timothy Arndell. Like his colleagues, he saw that that Ms Daley was dead and he got a sheet from the ambulance and covered her with it.

61. [70]

    Senior Constable Greg Hembrow and Sergeant Ian McDonald arrived at the beach where Ms Daley was lying at 7.18am on 27 January 2011. There were already ambulance officers in attendance. Ms Daley’s body had been covered with a sheet. Attwater was leaning against the troop carrier with his arms crossed over his head.

62. [71]

    Maris told S/C Hembrow that:

63. [72]

    Sgt McDonald, an officer of 24 years’ experience as at January 2011, took a number of photographs of the area. He saw a pile of burnt debris at the rear of and under the troop carrier. Looking into the back of the vehicle, he smelled a pungent and distinctive smell reminiscent of other scenes he had attended where there had been an amount of blood for a period of time.

64. [73]

    He spoke briefly with Attwater, noticing that he had blood on the right back pocket and right knee of his jeans.

65. [74]

    Detectives were called in, with Detective Sergeant Grahame Burke arriving at Site 3 at 9.15am on 27 January 2011. He made an inspection of each of the sites relating to events of 26 and 27 January 2011.

66. [75]

    He also spoke with Attwater, electronically recording the conversation.

67. [76]

    Of the events of Australia Day and that morning, Attwater said:

68. [77]

    Attwater said that he had met Ms Daley through drinking alcohol and had known her for years. He said they had been involved on and off over that time, and were currently “sexual partners”. He said that he and Ms Daley had been drinking wine, and then it got dark. Dusk on Australia Day was at 7.50pm and second twilight was at 8.16pm. Attwater told D/S Burke:

69. [78]

    Attwater said that, on the morning of 27 January 2011 he and Ms Daley got up early, he thought around 7am although he did not have a watch, and went for a swim. Both were intoxicated. They were speaking together before entering the water and Ms Daley was as she always was. He said:

70. [79]

    The applicant described Ms Daley in the course of the “seizure” as “just shaking”. He could not see what her eyes were doing. He dragged her from the water. Both were naked, as they had gone into the water to swim naked. Attwater told D/S Burke that he was still naked when doing CPR and when “they turned up”, putting a pair of jeans on afterwards. He told the officer:

71. [80]

    Prior to entering the water Attwater said that Ms Daley was “all fuckin’ sweet”.

72. [81]

    He said that they had spent the night at Black Rock and had driven down to Site 3 that morning. He and Ms Daley had then gone for a swim. Both were intoxicated, that being the reason they had gone swimming. On a scale where 1 is sober and 10 is “paralytic,” Attwater rated Ms Daley as a “7” when they went swimming, although she was able to have a conversation with him.

73. [82]

    Attwater was asked whether he had had sex with Ms Daley and said that he had, he thought on the beach [Site 1]. He thought that it was late in the night. He was asked if intercourse was “penis vagina sex”, replying:

74. [83]

    Attwater said that he was “playing with her” and “she was suckin’ fuckin’ old matie’s dick”, “old matie” being Maris. He said “she was happy for that to happen”. Attwater was asked to explain what he had done and said:

75. [84]

    D/S Burke asked whether he meant his whole hand or his fingers, and replied:

76. [85]

    He said Ms Daley was happy for the act he agreed was “just about” called “fisting” to be done to her. He said that he had done it before and it had not caused any injury, telling the officer, “She’s had seven kids man”. Attwater said:

77. [86]

    He said that he did not think that he had caused Ms Daley any injury, although he referred to “a little bit of blood”. He said that when he had “fisted” Ms Daley in the past it was normal for there to be a little bit of blood. He knew that she was not menstruating on this occasion.

78. [87]

    The applicant was asked about a fire and told D/S Burke that he thought Paul [Maris] had lit a fire to burn the mattress as “it stunk”. It “stunk” because it had Ms Daley’s blood on it from the “fisting”, the act having taken place on the mattress in the back of the troop carrier. Attwater said that he had known “straight away” that Ms Daley was bleeding during the sexual act and stopped. He could not say what may have caused the bleeding. Although there was “fuck all” blood on the mattress “it just fuckin’ stunk”.

79. [88]

    Attwater said that, after the sexual activity, Ms Daley “went to sleep for fuckin’ hours” and then got up and went swimming. She had displayed no signs of illness and said nothing about the bleeding:

80. [89]

    She was naked during the sexual act but put a pair of tracksuit pants put on afterwards. She slept on the mattress in the back of the vehicle; getting up to swim the next morning. When they were swimming Maris burnt the mattress, there having been an earlier discussion about its odour.

81. [90]

    Of the sexual act, Attwater said that Ms Daley “enjoyed it”. He denied that what he did was “rough”.

82. [91]

    He said that, after moving to Black Rock, he had been drinking UDL cans and wine.

83. [92]

    Maris told D/S Burke that he, Attwater and Ms Daley had gone to the beach and parked on the sand dunes [Site 1]. He said:

84. [93]

    He said that Attwater and Ms Daley had cleaned themselves up and afterwards, they stayed at that location for “a fair while”. On leaving, he and Attwater had been in and out of the car picking out a route through the sand dunes. They returned to the southern end of the beach and:

85. [94]

    Maris said that, during the call, he had gone to get a fellow from further up the beach to help, and then had gone and asked two more people to come to assist them. He said that, when he returned, he “threw a bit of sand” over the fire.

86. [95]

    Asked for more detail about the trio’s trip, he said they had decided to go fishing, as they had done on occasion in the past. Ms Daley had spent the night of 25 January 2011 at his home. On Australia Day Ms Daley had appeared:

87. [96]

    They had come up into the sand dunes and “just drank”. At Site 1 they had stayed for a fair while and had “a good drink”. He was not sure how they had started having sex:

88. [97]

    It had been night when this took place. Attwater and Ms Daley were in the back and Maris “just jumped over”; he thought Attwater may have asked him if he wanted to join in. The oral intercourse in which he was involved occurred “sort of” at the same time as Attwater had sex with Ms Daley. Maris said that Ms Daley was “fine” at that stage, and “she actually wanted to do it”. When asked how he knew she wanted to engage in that activity he said:

89. [98]

    Maris said that his involvement was very brief; Attwater’s was “for a fair while before then and sort of after”. Later, Attwater and Ms Daley went for a swim to clean themselves up. They moved locations [to Site 2], with Attwater and Maris in the front of the troop carrier and Ms Daley in the back during the drive. They spent a fair bit of time at the second location. He didn’t think Ms Daley got out of the vehicle until they returned to the beach, when she and Attwater went and had “a bit of a swim”. Then Attwater asked for help.

90. [99]

    While they had been swimming, Maris had “grabbed the mattress out ‘cause it stunk” and burnt it and some rubbish using diesel. After he had burnt it he had put sand on it. He later said that the process of burning the mattress and other detritus had taken “a while” as:

91. [100]

    As to his observations of blood, Maris said that he had seen some blood when Ms Daley sat on an esky, some blood on her leg, and there had been blood on the mattress. He thought she “had her normal periods”.

92. [101]

    At the point when she and Attwater had gone for a swim on the morning of 27 January 2011, Maris thought Ms Daley was “a bit like she was pilled out”, although he had not seen her taking any pills. She had had medication with her, although Maris could not say where it was.

93. [102]

    A second interview was conducted with Maris shortly after the first concluded, so that Maris could point out the various locations to D/S Burke.

94. [103]

    When asked about Ms Daley’s clothes Maris said that he “might have seen a bra on the mattress” when he pulled it from the car to burn it, but did not know what had happened to the black tracksuit pants and t-shirt that she had been wearing. It was possible that the bra had been tangled up with the mattress and burnt.

95. [104]

    He said that they had spent the majority of their time at the first spot [Site 1], before leaving and going to Black Rock [Site 2]. He thought Ms Daley had travelled in the front of the car, and that she was wearing pants.

96. [105]

    During the course of the interviews, Maris asked if he could go to the hospital and get something to calm him down.

97. [106]

    Susan Newbown, a social worker with the Acute Care Mental Health Service at Coffs Harbour Base Hospital in 2011, saw Maris at the Hospital at 8.45pm on 27 January 2011 when he was admitted as a patient at risk of self-harm. She completed an assessment of him, documenting what he told her on admission. Her note read:

98. [107]

    An expert Crime Scene Officer, S/C Gary Kennedy, arrived at Ten Mile Beach at 9.50am, and began to record the area. He took numerous photographs, many of which were in evidence at trial. Some photographs showed bloodstaining on Ms Daley’s legs and buttocks; others showed the large blood clot on the sand, and drag marks leading from the water to Ms Daley’s heels.

99. [108]

    He also saw and documented a mound of sand mixed with burnt material under the rear driver’s side wheel of the troop carrier, and an esky in the rear of the troop carrier that was smeared with blood. Some mats, a piece of carpet, and a tool box in the rear of the troop carrier showed blood staining. Blood stains in the back and front of the troop carrier, including a bloody fingerprint deposited by Attwater, were revealed by the application of Luminol.

100. [109]

     The officer collected the burnt debris from the fire bed, including a mattress cover or bed sheet, pieces of foam, and pieces from a bra; all of which returned a positive result on a presumptive test for blood. He also collected every piece of clothing from in and around the troop carrier; no set of tracksuit pants was found, and nor was the t-shirt Ms Daley had worn recovered.

101. [110]

     Another Crime Scene Officer, Leading S/C Mark Griffiths, an expert in blood stain pattern analysis, examined the photographs taken at the scene by S/C Kennedy, together with other documentary material. He noted that there were a number of blood stains within the troop carrier, and on items inside the troop carrier. He observed blood swipe patterns, blood transfer patterns, and other blood staining. A swipe pattern on the floor of the troop carrier was consistent with blood having soaked through the mattress that was removed from that location. Many of the stains had an irregular appearance, as if they had “been wiped over or something has happened to those bloodstains”. Others were “altered bloodstains” which were faint, having likely been “diluted or altered in some way, wiped off et cetera”. LS/C Griffiths thought that there would have been “a lot more blood where those altered bloodstains were”.

102. [111]

     A “flow pattern” on the rear of an esky at the back of the troop carrier was likely to have been deposited by a bleeding Ms Daley sitting on it. There were also “passive bloodstains” meaning those which had dripped from the source of blood and been acted upon by gravity, dripping down and pooling.

103. [112]

     The blood was that of Ms Daley.

104. [113]

     An expert forensic biologist, Virginia Friedman, told the jury that a piece of foam that she had examined [that was recovered by police from the fire pit] smelt strongly of petrol or diesel. It had a blood stain on it, but the stain could not be DNA tested because of the damage done to the blood by the diesel.

105. [114]

     D/S Burke, having inspected the three sites on 27 January 2011, returned to the scene on 30 January 2011. On that day he found the butt of a “rollie” or hand-rolled cigarette in some dunes about 2 metres from some tyre marks left by the troop carrier, at a location near Site 1. Later forensic examination recovered Ms Daley’s DNA from it.

106. [115]

     The detective also made inquiries about tides at Ten Mile Beach, discovering that high tide on the morning of 27 January 2011 was at 2.15 + 1 hour for daylight savings, and reached a height of 1.38 metres. Low tide was at 8.33am + 1 hour for daylight savings, at a height of 0.54 metres. At around 5.30 that morning the tide was going out.

107. [116]

     A search of the troop carrier and the beach conducted on 27 January 2011 failed to find the tracksuit pants or t-shirt that witnesses had seen Ms Daley wearing on Australia Day, and to which both Maris and Attwater had referred in their interviews with D/S Burke. The water was low and very clear and no object was seen out in the water, although searching officers scanned the water constantly looking for any clothing. The only item of clothing of Ms Daley’s which was found was the remains of a burnt bra.

108. [117]

     On 29 January 2011 Gail Norman, a friend of both Ms Daley and Attwater saw Attwater in Maclean. Having heard that Ms Daley had died, she spoke to Attwater, asking him what happened. She told the jury:

109. [118]

     Ms Norman also reported Attwater as saying:

110. [119]

     She told another friend about the conversation about three weeks later.

111. [120]

     Ms Norman had been with Ms Daley on occasion when she was drinking and had seen her drunk. She described her as a “loving drunk” who, when drunk, slurred her speech and swayed when walking.

112. [121]

     On 3 March 2011, D/S Burke arranged to meet Attwater and Maris at Ten Mile Beach. Each was interviewed separately from the other at that location.

113. [122]

     Attwater’s conversation with D/S Burke at the location was recorded audio-visually. Attwater said that he had been drinking as Maris drove the troop carrier up and down the beach. At Site 1, where the troop carrier had stopped for a time, and where the sexual act occurred, he had continued to drink:

114. [123]

     Ms Daley had been in the back of the vehicle and, early on the morning of 27 January 2011:

115. [124]

     Giving more detail of the sexual activity, Attwater said that he was not sure if it was dark but remembered being in the back of the four wheel drive with Ms Daley and Maris. He said Ms Daley was “giving Paul, suckin’ on his penis,” while Attwater was “playing with her vagina, with my four fingers.” Asked how the three had come to be engaged in the sexual activity, Attwater said:

116. [125]

     He said it was the three of them that started the sex act, all at the same time. They had been drinking, and he and Maris had let the vehicle’s tyres down to drive over some dunes to make a new track. The three of them “ended up in the back” of the vehicle. He continued:

117. [126]

     The applicant said Ms Daley had been on “her fours”, whilst Maris was in the middle and he was behind Ms Daley, laying on his side. He explained:

118. [127]

     As that account was given Attwater demonstrated with his hand held sideways to the ground, thumb extended upwards, with two, three and then four fingers extended horizontally. He denied that any other part of his hand, fist, or forearm entered Ms Daley’s vagina, saying:

119. [128]

     He said that Ms Daley was having oral sex with Maris as he performed that act. As to whether Ms Daley consented to these acts Attwater answered a number of questions from D/S Burke:

120. [129]

     He said that he stopped because he had blood on his hand. Although Ms Daley was “quite all right, she was all right”, he told Ms Daley “there’s a bit of blood here” and he stopped. Of Ms Daley he said:

121. [130]

     He said that the three of them had gotten out of the troop carrier and continued to drink. Ms Daley did not have any clothes on when she got out of the car, but put a pair of tracksuit pants on after that. She was thereafter drinking with Attwater and Maris until the three of them got into the front of the troop carrier and drove down the beach, drinking, and making tracks in the sand dunes.

122. [131]

     He denied that he had “fisted” Ms Daley, as his hand had only entered her vagina to about a depth level with the base of the thumb. She had said nothing to suggest that she was injured and there were “no worries” during the night when they stayed on the beach, or when they went swimming at 5.30 the following morning. Attwater said that he had not observed Ms Daley to be bleeding, and the only blood he saw was a little bit of blood on the mattress, and the blood he had earlier referred to on his hand. She had told him when he questioned her about the blood, “That’s right, don’t worry about it, I’m fine”.

123. [132]

     Afterwards, Attwater said Ms Daley was “talking, drinking, yeah, laughing, listening to music. She was all the way up the beach.” He said that Ms Daley sat in the front between him and Maris having “come round from the back door” and “jumped in”; she was wearing “a shirt and trakkies”.

124. [133]

     She was “quite all right all, all day, all night mate, eh”.

125. [134]

     Having left Black Rock the vehicle was driven to Site 3 where they stopped. Attwater said:

126. [135]

     Attwater said that, when he and Ms Daley removed their clothing before entering the water he noticed “a bit of blood on her”, “like, a stain”.

127. [136]

     He had asked her to come for a swim and she had said, “Yeah, I’m comin’ for a swim”. They had walked down to the water and were in the water for a couple of minutes. She had seemed “a little bit intoxicated” but knew what she was doing and was aware of her surroundings. Attwater later told D/S Burke that he and Ms Daley had been in the water for about five minutes before she had the fit, which was over very quickly, and left Ms Daley not breathing.

128. [137]

     After she had the seizure and Maris had fetched Mr Miller to help them, Mr Miller pointed out a significant blood clot at Ms Daley’s feet towards the water. Before that, Attwater had not noticed the blood clot, or any other blood around Ms Daley’s vagina or legs. He said he had been naked when “the other bloke and that came down here”. He put his pants on at some point after Mr Miller and two others had come to help, but before the ambulance arrived. He could not say what had happened to Ms Daley’s clothes.

129. [138]

     Maris told police that:

130. [139]

     Asked for more detail of that event, the applicant said:

131. [140]

     Maris said that he had noticed Attwater and Ms Daley having sex and “noticed Adrian fistin' her”. The conversation continued:

132. [141]

     He demonstrated a movement of his right hand, clenched into a fist, moving backwards and forwards parallel to the ground.

133. [142]

     Maris did not see Ms Daley’s face but “she wasn’t objecting to it or anything like that. She was sort of happy to participate”. He knew she was happy to participate because, otherwise:

134. [143]

     Maris heard her moaning and thought that meant she was enjoying the act. At some stage Attwater asked him to join in and he jumped over into the back of the vehicle and took his shorts off. It was at about that stage that he noticed the blood and thought Ms Daley had her periods.

135. [144]

     Although Ms Daley had not asked him to join in she had not objected, and “moved over to give me oral”.

136. [145]

     Not long after he had gotten back into the front Attwater stopped, and they all got out of the vehicle and all of them went down to the water for a swim.

137. [146]

     Maris said that he saw blood on the esky after Ms Daley had gotten out of the car, and had seen blood running down her leg after removing his penis from her mouth and moving to get back into the front of the vehicle. It was “sort of smeared” on her leg, but was enough to notice.

138. [147]

     They all went swimming, mainly so that Attwater and Ms Daley could clean up. Ms Daley had a little bit of blood on her legs; Maris did not notice any blood on Attwater. It was dusk at the time. Other evidence established that sunset on Australia Day was at 7.50pm, whilst second twilight was at 8.16pm. Ms Daley was “still intoxicated” when they went for a swim; she had been drinking since about 7 o’clock that morning. She was not dressed when she went swimming.

139. [148]

     On returning from the swim, Ms Daley got into the back of the vehicle and remained there, sleeping it off Maris thought. He and Attwater continued drinking until later, when they drove to the next parking spot [Site 2]. Maris thought Ms Daley remained in the back during the drive. He did not think she had dressed.

140. [149]

     At the second site, Maris and Attwater were walking about looking for the best way out. They were there for a fair while. When they decided to return to the beach, at a time when it wasn’t “far off daylight”, Ms Daley got back into the front of the troop carrier, although Maris was not sure if she got in the front by herself or if Attwater put her in the front. He did not think Ms Daley was wearing any clothes. She was “still groggy” and “quiet”. He did not notice any blood on her. When in the front of the car as they drove to the beach, Maris thought Ms Daley was awake, as she was sitting upright and not falling onto him.

141. [150]

     When they got to the beach [Site 3] he decided to burn the mattress. He went to the back of the car, pulled the mattress and whatever was on it out, and then went to the bonnet to get some diesel. He set fire to the mattress. After it had “shrivelled down” he got the shovel and put some sand on the pyre. He then heard Attwater “sing out to help him, he said, ‘Help me get Lynette out’, something like that, ‘She’s not breathin’’”.

142. [151]

     When the mattress was burning, Maris said he noticed Ms Daley’s bra. He burnt it because “it had blood on it and I didn’t think she’d want it”. He denied having burnt the mattress to conceal something.

143. [152]

     Dr Alan Cala is a senior forensic pathologist with extensive experience in the conduct of autopsies, including in scenes of international conflict and disaster. He has conducted well over 5000 such examinations in New South Wales alone. He conducted an autopsy on the body of Lynette Daley on 29 January 2011 [or 28 January, both dates being given in evidence] and gave the cause of her death as blunt force injury to the genitals. The injuries led to rapid and significant blood loss, which in turn led to hypovolemic shock; death followed. Ms Daley had “pale” internal organs, consistent with significant blood loss.

144. [153]

     On post mortem examination, Dr Cala noted a quantity of blood in the front of the vagina (of about the size of a saucer), around the front and back of the top of the thighs, in the pubic hair, and around the buttocks. There was also a large amount of clotted or congealed blood in the pelvis and vagina. There were bruises consistent with “fingertip bruising” found on the inner aspect of the upper thighs.

145. [154]

     The doctor removed the entire pelvic bowl and examined it, finding bruising in the muscle and fatty tissue within the deeper parts of the pelvis, with further bruising between the positions of 9 o’clock and 2 o’clock in the vagina, and to the left of the clitoris. He found two lacerations. The first was of 100 millimetres in length (minus a few millimetres extended during resection), from fourchette to cervix, including a 45 millimetre external laceration from clitoris to vagina; that is, the injury tracked from the fourchette or clitoral area, to the vaginal entry, and then into the vagina for 55 millimetres. The second laceration was 120 millimetres in length, and jagged in appearance with clotted blood at its base. The presence of clotted blood indicated that Ms Daley had survived the injury for a time, during which her body had attempted to stop the bleeding. The second laceration was deep, and would have led to immediate and significant blood loss. There was an amount of bruising “deep to the lacerations”, which were a reflection of trauma.

146. [155]

     Under microscopic examination sections of the tear near to the clitoris showed extensive acute haemorrhage, and inflammatory cells - neutrophils and lymphocytes - had travelled to the area, also pointing to survival for a period after injury. It was not possible to estimate a time of death. That Ms Daley remained alive at 6am on 27 January 2011 was, in Dr Cala’s opinion, highly unlikely, although he could not say it was impossible.

147. [156]

     Dr Cala also cited alcohol intoxication as a “significant condition” because it was a factor in Ms Daley’s death. The doctor deposed in evidence that Ms Daley’s blood alcohol level (measured from femoral blood taken at autopsy) was around 0.303 grams over 100 millilitres, or 6 times the legal driving limit for alcohol, which would have had an effect on coordination, and judgment particularly. Dr Cala said that, even as a regular consumer of alcohol, Ms Daley’s perception of pain and of the amount of blood she had lost would have been impaired by her level of intoxication.

148. [157]

     Ms Daley also had methylamphetamine in her system, at a level of 0.05 milligrams per litre of blood.

149. [158]

     Dr Cala was shown the recording of Attwater demonstrating, in his interview of 3 March 2011, the motions he said he made when inserting four of his fingers into Ms Daley’s vagina. The motion was described by the Crown Prosecutor as “fish-tailing”. The following evidence was given:

150. [159]

     Even the more vigorous part of the demonstration given by Attwater, in which he moved his hand with a displacement of about 10 centimetres, could not have caused the whole of the first laceration, or any of the second laceration. Dr Cala explained his opinion:

151. [160]

     Although the doctor thought it was possible the hand movement could account for the external part of the first laceration, Dr Cala did not believe it could account for the internal portion of it. He said that was:

152. [161]

     The insertion of a fist, moved in and out for about two minutes, could cause the second laceration and the bruises connected with it:

153. [162]

     It could also have caused the first laceration.

154. [163]

     It was more likely that the injuries were caused by the repeated insertion of a fist into the vagina. The force required to cause the injuries was at least moderate; light force would not have been sufficient to tear the lining of the vagina. Asked about the most likely mechanism of injury for the first laceration Dr Cala said:

155. [164]

     The same was true of the second laceration, with the insertion of a fist most likely to have injured Ms Daley, rather than an open hand.

156. [165]

     Dr Cala said that, if the injuries were inflicted at 8 or 9pm on 26 January 2011 Ms Daley would not have been alive at 5.30 the following morning. As to the account of Ms Daley having a seizure whilst swimming, the following evidence was given:

157. [166]

     Whilst Dr Cala agreed that a person in hypovolemic shock could be affected in a way that might lead a lay observer to conclude that a seizure was occurring, the doctor excluded a seizure as a feature contributing to Ms Daley’s death. Further, there was no sign of water in the stomach or airways, and no evidence to support saltwater drowning.

158. [167]

     The area of the body on which Dr Cala observed the significant lacerations and bruising was an area with “pain fibres” and injury would lead to pain. The blood loss was in the order of 2 litres, when Ms Daley’s estimated total volume of blood was about 4.5 litres. After the blood loss had commenced Dr Cala said that:

159. [168]

     Her ability to walk would have been “restricted” such that she could not have walked normally, and she may have felt short of breath. The signs would have been noticeable to an observer and, in particular, the “rapid blood loss pallor”, coupled with cold and clammy skin, would have been plain.

160. [169]

     The following evidence was given:

161. [170]

     Associate Professor Dr Peter Bland is a specialist obstetrician and gynaecologist with over 30 years’ experience. He examined a considerable volume of material relating to the injuries occasioned to Ms Daley, and the various descriptions of her conduct when she was injured and subsequently. He drew diagrams of the vaginal injuries, being two lacerations where the tissue of the vagina had split or torn. Dr Bland told the jury that the genital region was an area sensitive to pain, with the clitoris and external female genitalia being particularly sensitive, but the vaginal canal less so. Intoxication dulls the reaction to pain.

162. [171]

     The doctor was shown a portion of Attwater’s interview of 3 March 2011 in which he described penetrating Ms Daley’s vagina with four fingers in a “fishtailing movement”. He said that, if the action had been carried out “very vigorously” it could have caused the two vaginal lacerations sustained by Ms Daley. However, he thought it more likely that the injuries were caused by the insertion of a fist and a movement in and out over about 2 minutes. That was:

163. [172]

     Dr Bland thought it extremely unlikely that Attwater’s fingernails had caused the lacerations because his nails were quite short, did not protrude past the fingertips, and because the skin of the vagina “is actually quite tough skin”. For the injuries to be caused by the insertion of a fist, moderate to severe force would have had to have been used. If the injuries were occasioned by four fingers “fishtailing” into the vagina, an even greater degree of force would have been required, described by the doctor as severe force.

164. [173]

     Although Dr Bland had seen many vaginal lacerations in his long career, he had never seen injuries of the size and magnitude of those of Ms Daley. Nor had he ever seen vaginal bruising of the magnitude of that suffered by Ms Daley. The doctor considered there would have been rapid and significant blood loss. He deposed:

165. [174]

     He thought injuries of that nature could cause death from loss of blood in under an hour, although, if the rate of blood loss was slower, death could come some hours after injury. Dr Bland thought it was unlikely, or not reasonably possible that, if the injuries had been inflicted at twilight, Ms Daley could have been alive at 5.30 or 6 o’clock the following morning.

166. [175]

     Blood loss causes a selection of symptoms, including nausea, light headedness, dizziness, confusion, and agitation. Ms Daley may have appeared agitated, confused, and sweaty to observers, and she would have found it difficult to walk upright on her feet.

167. [176]

     Dr Bland was asked to comment on the likelihood of the account given by Attwater to police, that is: Ms Daley getting up on the morning of 27 January 2011 and walking down to the water to swim, and her breathing stopping; with a background of sexual intercourse having occurred at around 8 or 9pm on 26 January 2011; with injury and blood loss caused through the insertion of a hand or fist into her vagina; followed by some hours of sleep. He thought it “most unlikely”. As to the degree of unlikelihood, Dr Bland thought that it was “extremely unlikely”.

168. [177]

     The doctor was also asked to comment on the scenario given to police by Maris, whereby sexual intercourse occurred and injury was occasioned, followed by Ms Daley swimming in the ocean; returning to the back of the troop carrier; climbing in and sleeping for some hours; moving to the front of the troop carrier; driving as passenger to another location; getting out of the troop carrier and walking to the water and swimming. He thought that scenario was “extremely unlikely”.

169. [178]

     When asked about the process of blood clotting, Dr Bland said:

170. [179]

     Dr Bland told the jury:

171. [180]

     It would be more likely that the blood would clot inside the vagina if Ms Daley had been lying down. It would most likely have been dislodged by movement of her body, such as being moved into a vertical position.

172. [181]

     Ms Daley’s injuries were such that only timely surgical intervention would have saved her life.

173. [182]

     Dr Bland said that it was possible for a fist to be inserted into a vagina without causing injury, depending on a number of variables, such as positions, speed of insertion, the firmness or otherwise of the vaginal tissue, and the size of the vagina. The fact that Ms Daley had borne seven children would have had no impact upon her sensitivity to genital and vaginal pain.

174. [183]

     Dr Catherine Lincoln is a forensic medical officer and Deputy Director of the Clinical Forensic Medicine Unit on the Gold Coast in Queensland, with a background in sexual assault forensic medicine. She holds a PhD in forensic medicine, among other qualifications.

175. [184]

     Dr Lincoln was shown the recording of the account given to police by Attwater on 3 March 2011, specifically the same demonstration of digital intercourse as Dr Cala and Dr Bland saw. She too thought it “unlikely” that the motion demonstrated by Attwater could have inflicted the injuries seen at post mortem on Ms Daley. The movement would have had to “be more vigorous and rougher”. Dr Lincoln thought that a “very vigorous insertion of a fist could have caused both lacerations at once [...] in the same penetration”.

176. [185]

     Dr Lincoln was of the view that there would have been significant and rapid loss of blood on injury, as:

177. [186]

     The injury would have caused significant pain:

178. [187]

     Had there been any further movement of a fist or other object inside the vagina after injury occurred the pain would have been, according to Dr Lincoln, excruciating. A woman in that situation who did not complain of pain would have “had to have been unconscious”.

179. [188]

     Of the account advanced by Attwater of Ms Daley’s last hours, Dr Lincoln said:

180. [189]

     Eight or nine hours after the infliction of the injuries Dr Lincoln said that Ms Daley would have been affected by weakness and lethargy from the significant blood loss.

181. [190]

     The slightly different version given by Maris of those same hours was regarded by Dr Lincoln as, similarly, “unlikely”. An ocean swim immediately following the infliction of the injuries was unlikely because “the injuries to the external genitalia would have been […] extremely painful”. Movement would have worsened the pain, as would walking. Saltwater would have also exacerbated the pain.

182. [191]

     Considering the nature of the injuries, only surgical intervention could have saved Ms Daley’s life.

183. [192]

     The clotting of blood was the response of Ms Daley’s body to the bleeding, clotting being a mechanism to stem or stop the blood flow. Clots, particularly of the size of the clot found on the beach near Ms Daley’s body, and the saucer size clot noted by Dr Cala around the location of the second laceration, would have taken some hours to develop. Dr Lincoln opined that:

184. [193]

     The blood clotting in Ms Daley’s case would have stemmed the flow of blood over time, but not stopped it, because of the nature of the lacerations. The presence of methylamphetamine in her blood may have increased the rate of blood flow. All of the signs indicative of significant blood loss would have been visible, including a weak and lethargic presentation. The account of events advanced by Attwater was regarded by Dr Lincoln as “extremely unlikely”:

185. [194]

     Although Dr Lincoln was asked to comment on a scenario whereby the blood clot found on the beach near Ms Daley’s body had been dislodged by the movement of her walking to the water and swimming in the ocean, she was unable to accept the premise that Ms Daley had walked unaided to the water. She deposed that any movement of the body, whether active or passive, could have dislodged the clot. On dislodgment, it was possible that bleeding had resumed at a significant rate, potentially leading to something that could look like a fit, and death. However, the doctor noted that acceptance of that scenario could only be on the basis that there had not been significant and rapid haemorrhage immediately following the infliction of the injuries, hours before. Dr Lincoln did not accept that as a reasonable possibility. She said:

186. [195]

     Her hesitation to accept the possibility of Ms Daley functioning in a relatively normal manner for hours after injury was:

187. [196]

     If Ms Daley was dead when she was moved to the water, with the passive movement of her body causing the clot to dislodge, there could have been some “seepage” of blood from the small vessels, but that was distinguishable from bleeding from a live body.

188. [197]

     She accepted that “an agonal event” such as the body shaking or shuddering could occur at the moment of death.

189. [198]

     Particularly focusing on the movement around and in the troop carrier as it readied to relocate, and was then driven over the dunes, Dr Lincoln was sceptical of Attwater’s account. She deposed:

190. [199]

     The doctor similarly regarded the account given by Maris as “extremely unlikely” because of the “extreme pain” Ms Daley would have been in. She would not have been able, in Dr Lincoln’s opinion, to get up, sit upright in a vehicle, or be driven over uneven ground.

191. [200]

     Dr Lincoln was asked about the “fingertip bruising” on Ms Daley’s upper inner thighs, bruising described as multiple clustered bruises of about 1cm in diameter, with “features suggestive of pressure from finger pads”. She said:

192. [201]

     Dr Ellis was called in the case for the applicant Attwater. The doctor is a forensic pathologist of, as at 2017, some 36 or 37 years’ experience.

193. [202]

     When shown the recorded account Attwater gave to police on 3 March 2011 Dr Ellis said, with respect to the less vigorous action demonstrated by Attwater:

194. [203]

     He said the second more vigorous movement demonstrated by Attwater was more likely than the first to cause the injuries, but he could not say if the movement could or could not have caused them. A fist, being “a more voluminous, a larger object”, especially if the movement was “done vigorously”, would be more likely to cause injury than a movement of a hand, although a hand could cause injury “if the movement were vigorous enough”.

195. [204]

     As to blood loss, the doctor thought it was difficult to quantify blood loss from any injury. He did not regard body or organ pallor as a necessarily reliable indicator, as it was subjective. He said that, assuming the blood loss was not great, there was no reason to conclude that Ms Daley would not have been able to walk to the water on the morning of 27 January 2011, although he acknowledged that his conclusion accepted the truth of what Attwater had said concerning the limited blood loss following intercourse.

196. [205]

     However, the doctor accepted the accuracy of the observations of Dr Cala, he being the pathologist who conducted the autopsy, that the longer of the vaginal lacerations was also deep, and thus would have bled immediately. Ms Daley’s death evidenced the significant loss of blood.

197. [206]

     Dr Perl holds a PhD in pharmacology and has been engaged as an expert witness in that field since 1984. Her particular field of expertise is the effect of alcohol and drugs on cognitive functioning. She was comprehensively briefed with witness statements and expert reports relevant to Ms Daley’s circumstances on Australia Day 2011.

198. [207]

     On the basis of the observations of witnesses in Iluka who had seen Ms Daley in and around the Foodworks store that evening Dr Perl deposed that Ms Daley was obviously affected by alcohol. She said:

199. [208]

     Ms Daley would not have “sobered up” between the latest of the observations of her, at about 5.30 or 6pm, and an act of sexual intercourse at around dusk, or 7.40pm. On the assumption that she had not consumed any further alcohol, her blood alcohol level wouldn’t have fallen substantially enough for her to have sobered up to any degree. Her condition at around 6pm was “approaching stupor”, or very close to a stuporous stage, with “very obvious motor coordination problems”, and evidence of conduct reflective of her “high degree of intoxication” such as that surrounding the pulling down of her pants by Maris.

200. [209]

     A state of stupor is one where the person is semi-conscious, and can only be aroused by persistent shaking, or prodding, or pain. “Stupor” can also mean a level of affectedness where the individual falls into unconsciousness and no longer responds to pain.

201. [210]

     The level of alcohol in Ms Daley’s blood (taken from the femur) at autopsy was 0.303, that being an accurate reflection of her blood alcohol concentration at the time of death. At a time earlier than death, between the time of the observations of Iluka witnesses and dusk, on the proviso that no further alcohol had been consumed, Ms Daley’s blood alcohol level would have been higher than 0.303. On the assumption that she had slept for five hours prior to death, the blood alcohol level prior to sleep would have been in the vicinity of 0.355.

202. [211]

     Dr Perl told the jury that alcohol is eliminated from the blood at a rate of 0.01 to 0.025 per hour, with regular drinkers falling at the higher end of that range. Ms Daley’s blood alcohol level could have been as high as 0.50 but likely not less than 0.383 at a time eight hours prior to death.

203. [212]

     Even using the conservative level of 0.303 at the time of sexual intercourse, Dr Perl said that all areas of Ms Daley’s cognition would have been impaired:

204. [213]

     A person affected to that degree would have shown clear signs of intoxication and impairment. Decision making capacity is impaired well before signs of intoxication are displayed.

205. [214]

     At around the time of the sexual act, Dr Perl considered that Ms Daley’s ability to make a decision about sexual intercourse would have been “grossly” or “absolutely impaired”. Her ability to understand the consequences of a hand or fist inserted into her vagina would have been severely impaired. Her ability to communicate a decision would also have been very significantly impaired, as witness statements suggested was the case when Ms Daley was in Iluka. She was at that time and would have been at dusk “basically uncommunicative”.

206. [215]

     Even with her higher level of tolerance for alcohol, Ms Daley would have “been displaying severe signs of intoxication” at dusk. Had she consumed more alcohol, Dr Perl thought she would have been “approaching comatose”.

207. [216]

     Professor Christie was called in the case of the applicant Attwater. He is a professor of pharmacology at the University of Sydney, being the Deputy Dean of Research at the Medical School at the University.

208. [217]

     Professor Christie told the jury that, having looked at Ms Daley’s medical records, he thought that she was likely to be an alcoholic, and perhaps a severe alcoholic. On the basis of the evidence given at trial by those who had observed Ms Daley, the professor thought that, in the days leading up to the incident, Ms Daley had been involved in “a prolonged binge of very heavy drinking”. An individual with a drinking pattern of that nature could be expected to develop a “very high level of tolerance to alcohol”.

209. [218]

     With respect to Ms Daley’s blood alcohol level at the time of death, measured at post mortem, Professor Christie said that most individuals would be comatose at that reading. From a reading of 0.3 the drinker is approaching the fatal range for alcohol intoxication. However, Professor Christie stated that a tolerant drinker could behave “apparently completely normally” with such a reading. He accepted that, according to the witnesses in Iluka, Ms Daley was not behaving apparently completely normally when she was seen on the evening of Australia Day.

210. [219]

     The professor referred to various international studies (largely concerning drinking and driving) that suggested some individuals could function with a blood alcohol reading as high as 0.54. However, he accepted that, whilst studies found that intoxicated individuals could make a decision to drive, since some of the data was derived from motor vehicle crash survivors, it was reasonable to accept that the intoxicated drivers (with a reading of 0.25 and up) could not understand the possible consequences of the decision, including that it was not safe to drive. The majority of the participants in the study were men with no neurological deficits.

211. [220]

     Experienced drinkers also eliminate alcohol from the body at a higher rate than more novice drinkers, at a rate of between 0.25 and 0.33 grams per hour, contrasted with 0.15 grams per hour for someone who is not a regular heavy drinker. He thought it likely that Ms Daley’s rate of elimination was at the higher end of the range. He thought there would be great difficulty in determining Ms Daley’s capacity to function at about the time of intercourse. He could not say whether she was stuporous or not when she was seen in Iluka; whether she was at the time of intercourse would depend upon “imponderables” such as whether she had consumed more alcohol.

212. [221]

     Professor Christie accepted that Ms Daley was “severely intoxicated” on the evening of Australia Day, probably more intoxicated than she had been when seen in Iluka if Attwater’s account of her continued drinking was accepted. On the basis that Ms Daley did not drink after the sexual act had occurred, he was asked to work backwards from about 5.30am on 27 January 2011, factor in a rate of elimination of 0.02 grams per hour, and give an estimated blood alcohol reading at 9.30 the previous evening. The reading was 0.46, a lethal dose of alcohol for most people.

213. [222]

     The level of impairment with a reading of 0.303 would have been severe; at 0.46 it would have been profound. Professor Christie accepted that at either level, it was possible that Ms Daley did not know what she was doing.

The Proposed Conviction Appeals

1. [223]

   With that summary of the evidence led at trial, we turn to consider the grounds advanced by each applicant. Although the cases against each of the applicants differed, the grounds are the same, and it is convenient to address each ground brought by the applicants together.

2. [224]

   The basis of the complaint under this ground is that the directions given to the jury on what were alleged to be lies told by the applicants permitted the jury to reason that the lies evidenced consciousness of guilt without giving the jury a direction of the nature of that referred to in Edwards v R (1993) 178 CLR 193; [1993] HCA 63 (“Edwards”).

Background

1. [225]

   To understand the parties’ submissions on this ground it is necessary to recite some of the background leading up to the directions given by the trial judge.

2. [226]

   Prior to counsel commencing their closing addresses there was extensive discussion between counsel for the respective parties and her Honour concerning whether the Crown was entitled to rely on lies alleged to have been told by the applicants as evidence of consciousness of guilt. It is unnecessary to go through this discussion in any detail, but her Honour expressed her initial conclusion in the following terms:

3. [227]

   The Crown Prosecutor then addressed. The first reference to lies appears to be in relation to the answer Attwater gave in his interview of 3 March 2011 which we have set out at [129] above. The reference was in the following terms:

4. [228]

   This part of the address did not suggest to the jury that they could use the lie as evidence of consciousness of guilt.

5. [229]

   Thereafter, in dealing with the allegation of manslaughter by criminal negligence, the Crown Prosecutor made the following remarks:

6. [230]

   What was said in this part of the address was consistent with the ruling by her Honour of the extent it could be alleged by the Crown that lies said to have been told by Attwater evidenced consciousness of guilt.

7. [231]

   The next day the Crown, in dealing with the applicant Maris’ evidence, said the following:

8. [232]

   Once again, this part of the address did not invite the jury to reason that the lie alleged was evidence of consciousness of guilt.

9. [233]

   In dealing with Maris’ statement in his record of interview of 3 March concerning the reason he burnt the mattress (see [150]-[151] above), the Crown Prosecutor made the following remarks:

10. [234]

    On the following day (the 22nd day of the trial) there was further discussion between her Honour and counsel for the parties concerning the use that could be made of the alleged lies. The discussion, which is of some importance in considering whether there was a miscarriage of justice, was in the following terms:

11. [235]

    The next day her Honour indicated that she would not give a consciousness of guilt direction. She made the following remarks:

12. [236]

    On the same day counsel for Mr Attwater commenced his address.

13. [237]

    On the following day he made the following remarks to the jury:

14. [238]

    Although it is to be noted that counsel for Attwater described the Crown’s case as being that Attwater’s account given to Detective Bourke was some sort of performance designed to conceal what actually happened, it is apparent from the passage to which we have referred above that the thrust of the address was that the jury should not accept that what Attwater said was a lie.

The directions

1. [239]

   Her Honour gave written directions to the jury.

2. [240]

   The directions in respect of lies were quite clear. So far as relevant they were in the following terms:

3. [241]

   This is a clear direction to the jury that lies could not be used as evidence of consciousness of guilt.

4. [242]

   The relevant part of her Honour’s summing-up was as follows:

The submissions on behalf of Attwater

1. [243]

   The written submissions filed on behalf of Attwater referring to Edwards (at 209) stated that a lie can only be evidence probative of guilt if it is deliberate, relates to a material issue, and is explicable only on the basis that the truth would implicate the accused in the offence for which he or she was charged. The submissions also emphasised that it was necessary for the Crown to distinguish between lies relied upon to attack credibility and those relied on as evidence of consciousness of guilt.

2. [244]

   The written submissions also referred to the direction said by the plurality in Edwards to be required where there was reliance on lies as evidence of consciousness of guilt. The relevant part of the judgment (at 210-211) is in the following terms:

3. [245]

   The written submissions also referred to the initial ruling given by her Honour, which we have set out at [226] above, and to the fact that, in accordance with her Honour’s ruling, the Crown invited the jury to engage in consciousness of guilt reasoning when considering manslaughter by gross criminal negligence.

4. [246]

   The submission then referred to the change in the ruling, which we have set out at [235] above, and submitted that the response of counsel for Attwater was to address the jury consistently with that ruling.

5. [247]

   In that context it was submitted that the trial judge’s remarks, in particular the following statement paraphrased by counsel that “the Crown submits lies were told in an endeavour to account for their criminal conduct”, conveyed the argument that “if you find the appellant lied you, should or may conclude he did because he was endeavouring to conceal his guilt; thus, to find that he lied is to find that he is guilty”.

6. [248]

   The submission also referred to the statement in paragraph 162 of the summing-up (see [242] above), “The Crown says that their account to police is untrue in very major respects and the Crown says the accounts were given by the accused in order to minimise or indeed, falsely account for what they well knew by the time they were interviewed was their criminal responsibility for some of the events of the night”. That portion of the summing-up was described in the written submissions as “problematic”.

7. [249]

   It was submitted that at no stage did the trial judge give an Edwards type direction that the jury needed to be mindful of the fact that people tell deliberate lies for reasons other than their guilt.

8. [250]

   It was accepted that the written directions, along with the summary of argument at paragraph 160 and the direction at paragraph 163 of the summing-up, were consistent with her Honour’s stated intention. However, it was submitted that the particular parts complained of in paragraphs 149 and 162 of the summing-up were of a different character, namely, that the Crown case was that the applicant gave a false account because, at the time of the interview, he was aware of his own criminal responsibility.

9. [251]

   It was submitted that the passage in paragraph 162 invited the jury to engage a consciousness of guilt reasoning without the protection of an Edwards type direction. It was also submitted that the impugned passages did not distinguish between any of the offences, and that it was unfair because defence counsel addressed on the false assumption that he did not need to meet an argument that suggested a consciousness of guilt type reasoning.

10. [252]

    It was accepted that r 4 of the Criminal Appeal Rules (1952 SI 2) may apply, but it was submitted that leave should be granted having regard to the manner in which the sentencing judge stated the jury were to be directed on lies. It was submitted that a subsequent clarification of the use of lies direction would have added to the confusion.

11. [253]

    At the hearing, senior counsel for Attwater submitted that the effect of the change in the trial judge’s ruling was that it required defence counsel to only address on lies as a credibility issue. She submitted in that context, referring to the portion of the Crown’s address which we have set out at [229] above, that the jury must have wondered why defence did not address such a strong submission.

12. [254]

    Senior counsel for Attwater also submitted, referring to the same portion of the Crown’s address, that there was no question that consciousness of guilt reasoning was raised. She submitted that the Crown did not seek to resile from what he had said in his address to the jury to which we have referred at [229] above, and the reference in paragraph 149 of the summing-up clearly raised consciousness of guilt reasoning. She accepted that it was in the context of the written direction. However, she submitted that the mixed messages which resulted would have reinforced the confusion the jury might have felt as a result of the Crown Prosecutor being able to address on deliberate lies, including by stating that the applicant deliberately told “preposterous” story, whilst the defence was not permitted to squarely address what the Crown had said. She noted in that context that the jury took only 32 minutes to reach its verdict.

13. [255]

    Senior counsel for the applicant submitted that although the consciousness of guilt submission raised by the Crown was only directed to the liability for manslaughter by way of criminal negligence, it would have infected the whole of the jury’s reasoning. She also submitted that to ask for a redirection would have amplified something which “everybody by this stage was hoping would just be swept under the carpet” and would be swamped by all of the other material in the case.

The submissions on behalf of Maris

1. [256]

   In written submissions filed on behalf of Maris it was pointed out that lies formed an important part of the Crown’s address. It was submitted that a large part of the Crown’s address involved taking the jury through Maris’ record of interview and submitting that he was lying. In particular, reference was made to that part of the Crown’s address to which we have referred at [233] above.

2. [257]

   In that context, reference was made to paragraphs 157-159 of the summing-up (see [242] above) where the trial judge summarised the submissions on the lies said to have been told by Maris. Reference was then made to that part of paragraph 162 of the summing-up of which Attwater complained (see [248] above), and it was submitted that what was said amounted to a direction that the Crown case was that the lies told by Mr Maris were told out of a consciousness of guilt. It was submitted that there were two dangers. First, what was said at paragraph 162 of the summing-up was not accompanied by an Edwards type direction and, second, the direction did not delineate between the counts to which the Crown alleged the lies were directed.

3. [258]

   It was also submitted, referring to R v Toia Siulai [2004] NSWCCA 152 (“Toia Siulai”), that the statement by the trial judge in paragraph 179 of the summing-up, namely, that if the jury found that the applicant lied it was critical that that should not “lead immediately to the conclusion the Crown had proved guilt beyond reasonable doubt”, suffered from the flaw that different credibility findings arose in relation to each applicant.

4. [259]

   At the hearing, senior counsel for Maris adopted the submissions made by senior counsel for Attwater, stating that the complaints applied equally to his client. He emphasised that what occurred would have left the jury in a state of uncertainty. Referring to R v Sutton (1986) 5 NSWLR 697 at 701 he emphasised the danger of miscarriage in this area.

The Crown

1. [260]

   The Crown emphasised that the impugned passages at paragraphs 149 and 162 of the summing-up, which we have set out at [242] above, were a recording of the prosecutor’s submissions and not a direction of law. He pointed out in his written submissions that earlier in the summing-up the trial judge had told the jury that submissions by counsel were not evidence. As a consequence, it was submitted that the passages complained of did not involve a misdirection by the trial judge.

2. [261]

   It was submitted that what was said at paragraph 149 of the summing-up did not involve consciousness of guilt reasoning but, rather, was an introduction to the issue of lies. He submitted that the statement that the jury “would be satisfied [of] their criminal conduct” was a reference to the ultimate submission that the jury would find the applicants guilty.

3. [262]

   The Crown also submitted that the passage in paragraph 162 of the summing-up did not raise consciousness of guilt reasoning. Referring to Rend v R [2006] NSWCCA 41, it was submitted that a statement that an accused was “distancing” himself from knowing about the offence did not require a direction in accordance with either Edwards or Zoneff v R (2000) 200 CLR 234; [2000] HCA 28 (“Zoneff”). It was submitted that that was consistent with what was said by Basten JA in Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385 at [131]. Further, it was submitted that the jury were expressly given directions as to how they could use the lies, referring to paragraphs 163 and 179 of the summing-up. In relation to the submission that the sentencing judge did not expressly criticise the consciousness of guilt reasoning, the Crown referred to the fact that immediately after the passage in paragraph 162 of the summing-up, of which complaint was made, the sentencing judge expressly warned the jury against consciousness of guilt reasoning.

4. [263]

   In relation to the complaint that there was no reference to the protective part of the consciousness of guilt direction in Edwards, the Crown submitted that there was no requirement for such a reference as neither the trial judge’s directions nor the recording of the Crown’s submissions invited consciousness of guilt reasoning.

5. [264]

   In relation to the complaint that the impugned paragraphs of the summing-up did not distinguish between the two charges and thus raised the possibility of consciousness of guilt reasoning in respect of both offences, the Crown repeated its submission that the impugned paragraphs did not involve consciousness of guilt reasoning. Further, it was submitted that even though her Honour had initially ruled that the Crown could rely on certain lies as evidence of consciousness of guilt, the Crown did not do so.

6. [265]

   The Crown referred to that passage of the Crown’s address to which we have referred at [229] above, the subsequent interchange between counsel and the sentencing judge to which we have referred at [234] above, and the ultimate ruling by her Honour to which we have referred at [235] above. It was noted that it was counsel for Attwater who expressly referred to the Crown’s case as being that Attwater’s account was some sort of performance designed to conceal what actually happened. It was submitted that that suggested that, in the context of the trial, consciousness of guilt reasoning was not an issue.

7. [266]

   Finally, it was submitted that r 4 of the Criminal Appeal Rules applied.

8. [267]

   The Crown repeated its submission that the impugned portion of paragraph 162 of the summing-up (see [242] above) was a summary of the Crown’s address, not a direction of law. It was emphasised that no part of the Crown’s closing address raised consciousness of guilt reasoning in respect of Maris.

9. [268]

   In relation to the Crown’s reliance on Toia Siulai, the Crown submitted that, unlike that case, the trial judge had expressly stated at paragraph 163 of the summing-up that a finding that the applicants had told lies could not support the Crown case and simply meant that the accused’s evidence was simply to be given no weight on the question of guilt. The Crown also referred to the fact that paragraph 179 of the summing-up repeated the direction that it was a matter for the Crown to establish guilt beyond reasonable doubt.

10. [269]

    In relation to the absence of an Edwards type direction, the Crown submitted that no such direction was required. It was also submitted that there was no prospect that the failure to distinguish between the charges in relation to the direction on lies would mislead the jury in any way.

11. [270]

    Finally, it was submitted that r 4 of the Criminal Appeal Rules applied.

12. [271]

    At the hearing the Crown focused on the events which occurred on the 22nd day of the trial to which we have referred at [234] above. The Crown stated that the remarks made by the trial judge, the prosecutor and counsel for Attwater indicated that what had been said previously by the Crown was not troubling so far as consciousness of guilt reasoning was concerned. The Crown noted in that context that the Crown Prosecutor’s statement “no matter what way your Honour goes, I don’t believe it would be infringed”, and counsel for Attwater’s comment “by the time your Honour directs anyway, it’d be lost on the jury anyway” suggested that both parties formed the view that no difficulty would arise if the trial judge reversed her previous ruling. It was submitted that this was supported by the fact that no objection was taken on the impugned part of the summing-up and no redirection sought. The Crown also submitted that that part of the Crown address to which we have referred at [229] above did not involve consciousness of guilt reasoning.

13. [272]

    The Crown also emphasised that no Edwards direction was sought, stating that that was understandable as it would have undermined the applicants’ case, which was that what the applicants told the police were not lies.

14. [273]

    The Crown also submitted that, in light of what was said on the 22nd day of the trial along with a failure to seek a redirection, r 4 of the Criminal Appeal Rules applied.

Consideration

1. [274]

   In Zoneff the Court warned against giving Edwards directions when it was unnecessary. The plurality made the following remarks:

2. [275]

   In the present case the applicant accepted that, apart from the passage referred to at [229] above, the Crown in its address did not invite the jury to adopt consciousness of guilt reasoning. In circumstances where it appeared to have been accepted in the interchange to which we have referred at [234] above that the Crown address had not in any material manner traversed the amended ruling, there was in our view no need to give an Edwards direction consequent upon that change of ruling.

3. [276]

   It remains to be considered whether the summing-up of the trial judge had the effect of inviting the jury to adopt consciousness of guilt reasoning. We do not think that it did.

4. [277]

   In considering that issue it must be remembered that at the outset of her Honour’s summing-up on the question of lies, the trial judge expressly referred to her written directions on the topic (see paragraph 148 of the summing-up at [242] above). The written directions clearly and correctly instructed the jury that they could not use lies as evidence of guilt.

5. [278]

   The next passage of the summing-up (paragraph 149) recounts the Crown’s submission. Although taken in isolation it may have led the jury to conclude that the Crown was arguing that if the jury did not believe the applicant’s account they could find him guilty, the passage cannot be read in isolation. The passage must be read in the context of the express written direction that that was what the jury were not permitted to do.

6. [279]

   Paragraphs 157-160 of the summing-up simply record submissions by the Crown of the occasions on which Maris was said to have lied.

7. [280]

   Paragraph 161 of the summing-up primarily deals with the submission on behalf of the applicants that they were not telling lies.

8. [281]

   The opening paragraph of the summing-up, paragraph 162, contains a direction of what the jury needed to be satisfied to conclude that the applicants were lying in the statements which they had made. There follows the particular passage of which complaint was made. Immediately thereafter the trial judge emphasised the need to give separate consideration to the lies the Crown alleged were told by each accused.

9. [282]

   Left at that point there may have been some merit in the argument that notwithstanding the clear written directions, consciousness of guilt reasoning was left open to the jury. However, the passages complained of must be read in the context of paragraph 163 of the summing-up.

10. [283]

    Paragraph 163 of the summing-up is quite explicit. It emphasises the fact that a lie cannot be used to prove the guilt of the accused whether alone or with other evidence, and that the Crown was not advancing a contrary submission. It was further emphasised in paragraph 179 of the summing-up that in order to be satisfied that guilt had been established beyond reasonable doubt, it was necessary to be satisfied of all of the elements of the offence. Further, it was emphasised in paragraph 180 of the summing-up that the jury should not be distracted by the lies in reaching their conclusion.

11. [284]

    In these circumstances, although the recitation of the Crown’s submissions may have caused the jury to embark on consciousness of guilt reasoning, unless otherwise instructed the written directions coupled with the unambiguous direction in paragraph [163] and paragraphs 179-180 of the summing-up would have dispelled any belief that that was appropriate.

12. [285]

    It is finally necessary to deal with the reliance by counsel for Maris on the decision in Toia Siulai. The error in that case was that where the issue of credibility was different in the case of each of the accused, the directions given did not identify the different ways in which the issue arose. In the present case, the trial judge expressly told the jury that the lies did not cross-pollinate and that the jury had to separately consider the lies that each accused were alleged to have told.

13. [286]

    In these circumstances, this ground of appeal has not been made out.

14. [287]

    The applicant argued that count 2, the charge of aggravated sexual assault in company, was not capable of proof and, with this charge underpinning the Crown case, it was submitted that it was not reasonably open to the jury to return verdicts of guilty to either of the charges brought against him. His contention was that there was insufficient evidence to permit the jury to conclude that, either, the deceased did not consent to sexual intercourse with him; or, if it were found that she did not consent, that he could have known that. If that proposition is accepted, it follows that the conviction for manslaughter is also flawed, as there was no unlawful and dangerous act; or, alternatively, the evidence was insufficient to support a conviction for manslaughter on the basis of criminal negligence.

15. [288]

    Without direct evidence of absence of complaint, the Crown at trial pointed to the complainant’s intoxication to establish that Ms Daley did not or was not able to consent to intercourse, together with the severity and painfulness of the injuries occasioned to her, as underlining the absence of consent. The applicant submitted that the evidence to establish Ms Daley’s level of intoxication, and the effect of the alcohol on her, was insufficient for the jury to conclude that consent had not been given to the sexual act. The applicant pointed to what was said to be the absence of evidence to establish:

    1. (1)

       the quantity of alcohol consumed by Ms Daley after leaving IIuka and before her death;

    2. (2)

       The timing and quantity of her consumption of alcohol after 6pm on 26 January;

    3. (3)

       The time of Ms Daley’s last drink;

    4. (4)

       The rate at which she absorbed and eliminated alcohol on the night of 26-27 January 2011; and

    5. (5)

       the actual effect of alcohol on her given her likely higher tolerance.

16. [289]

    It was argued that the evidence of witnesses who saw Ms Daley in Iluka on the evening of 26 January 2011 took the matter no further, leaving a complete state of uncertainty as to the extent and effect of intoxication.

17. [290]

    The evidence of Dr Perl as to Ms Daley’s likely intoxication was contrasted unfavourably with that of Professor Christie by the applicant. It was argued that Dr Perl’s evidence was adversely affected by an “error” in the chronology of events given to the doctor by the Crown, and an inadequate recitation of the evidence of Iluka witnesses, with a failure to refer to evidence that pointed to a greater capacity on Ms Daley’s part undermining the validity of Dr Perl’s opinion. It was submitted that the evidence to which Dr Perl was not taken in evidence arguably demonstrates the deceased’s more responsive and purposeful behaviour when at Iluka, conduct not supporting her incapacity to consent to sexual activity.

18. [291]

    Attwater argued that the evidence could not support a conclusion that Ms Attwater was “approaching stupor” in Iluka, because:

    1. (1)

       After Mr Newtown and Mr Gallagher saw her, she was not difficult to rouse; she walked into, around and out of Foodworks, and she was talking and laughing with the co-accused;

    2. (2)

       She was able to converse with Maris and clearly yell out, ‘Anyone want a piece of this’, pulling her track pants up twice in succession;

    3. (3)

       She was not apparently confused; she was able to place things into the rear of the vehicle [where the Esky was];

    4. (4)

       She was able to physically support herself; standing whilst twice pulling her pants up with one hand; and

    5. (5)

       She was not unaware of her physical surroundings; it would appear she re-positioned her body to expose her bare bottom to get a reaction from observers.

19. [292]

    If Ms Daley’s presumed tolerance to alcohol is also considered, it cannot be safely concluded that she was approaching a state of stupor in Iluka, or incapable of consenting to intercourse thereafter.

20. [293]

    The applicant conceded that Ms Daley was very intoxicated when at IIuka, but maintained that, in the absence of evidence as to the degree of the deceased’s tolerance to alcohol, the effect of intoxication on her when at IIuka between 5:30-6pm on 26 January 2011 was “very much an issue”. It was submitted that Dr Perl overstated the effect of Ms Daley’s level of intoxication by failing to have full and proper regard to all of the available evidence.

21. [294]

    Professor Christie was unable to estimate Ms Daley’s likely blood alcohol concentration at and after 6pm on 26 January 2011, because there were too many variables, including the degree of tolerance to alcohol, how much alcohol she had consumed; and what her rate of elimination of alcohol was.

22. [295]

    Referring to Tabbah v R [2017] NSWCCA 55, it was argued that the fact of heavy intoxication does not of itself mean that a person is incapable of making a free and voluntary decision to have sexual intercourse.

23. [296]

    Of the Crown’s reliance on the severe injury sustained, and the painful nature of it to found a conclusion that Ms Daley must have been in a state of or close to unconsciousness at the time of intercourse, the applicant argued that this evidence can say nothing about consent that was given before the act. Further, the expert medical evidence could not exclude the reasonable possibility that Attwater inserted his fingers, or even his fist, for “a couple of minutes”, then caused the lacerations with a single more vigorous insertion, stopping immediately he saw blood on his hand.

24. [297]

    The applicant concluded that there was no evidence at all that Ms Daley withdrew her consent because of the mechanism of sexual intercourse, the nature of the injuries she had suffered, or the pain she was likely to have experienced.

25. [298]

    If the charge of aggravated sexual assault could not be proved, neither could the change of manslaughter relying on unlawful and dangerous act.

26. [299]

    As to the alternative basis of liability for the latter charge, it was the applicant’s argument that the evidence did not support a conviction on the basis of criminal negligence because there was no evidence to contradict his account of having ceased to penetrate Ms Daley’s vagina immediately after he saw a small amount of blood on his hand, or of her supposed assurances to him thereafter that she was well. The applicant and Ms Daley were friends and there was no reason to conclude that he would not have secured medical assistance for her if she had asked for it, or otherwise had cause to believe that it was required. Since Ms Daley dressed in a pair of black tracksuit pants after intercourse, it would have been near impossible to see through her clothing at night without some form of strong lighting. Light was limited to the fire built near the vehicle; there was no evidence to establish that the vehicle’s internal lights operated. The small deposits of blood later found by crime scene officers would have been difficult to see.

27. [300]

    Any adverse symptoms displayed by Ms Daley were all capable of being understood by the lay person as signs of intoxication, not suggesting the need for medical intervention. She did not complain of pain, and her “pain threshold” was not known. Some individuals are more tolerant of pain than are others.

28. [301]

    In summary, the applicant contended that “the prosecution case was deeply flawed because it was based on a series of unknowns or ‘imponderables’” and there is a possibility that an innocent man has been convicted.

29. [302]

    The principal argument advanced by the applicant Maris was that, the Crown case against him being based almost entirely on his account of relevant events to police, it was not open to the jury to accept his account of having had sexual intercourse with Ms Daley, but not his account of her consent (conveyed by a movement of her body) and of his belief that she did consent and “wanted it”.

30. [303]

    He pointed to the same asserted inadequacies in the evidence relied upon by the Crown to establish that, either, Ms Daley was stuporous or unconscious at the time sexual intercourse took place, or that she was so intoxicated as to be unable to freely and voluntarily consent. He argued that this evidence was flawed, and incapable of establishing absence of consent.

31. [304]

    It was impermissible for the jury to accept as a truthful account his admission to sexual intercourse, but reject as lies those things he described which established consent to intercourse.

32. [305]

    Referring to the principles to be applied with respect to a ground asserting that a verdict or verdicts were unreasonable and unsupported by the evidence, the Crown submitted that there was a considerable body of evidence to support the jury’s verdict with respect to each count.

33. [306]

    The Crown argued that it was open to the jury to conclude that the sexual act was one of “fisting”, as the applicant Attwater told D/S Burke in the first of his recorded interviews, and as he had told the ambulance officer Mr Jarrett, and his friend Ms Norman; and repeated “fisting” of a vigorous nature.

34. [307]

    The truthfulness of these admissions was supported by the expert medical evidence, which was firmly to the effect that the most likely cause of the significant injuries inflicted on Ms Daley was the insertion of a fist, with some force. The medical evidence did not support the truthfulness of the more anodyne version later given by the applicant to police, of a relatively gentle insertion of one, two, three and then four fingers into Ms Daley’s vagina.

35. [308]

    There was also clear evidence to support a conclusion that Ms Daley was either unconscious or so intoxicated that she was not capable of freely and voluntarily consenting to the particular act of sexual intercourse that took place, that being the insertion of the applicant’s fist or hand repeatedly and vigorously into her vagina, or that she did not freely and voluntarily agree to sexual intercourse.

36. [309]

    The nature of the act of sexual intercourse was an important consideration when assessing evidence relevant to the lack of consent. To account for the severe injuries inflicted on Ms Daley, the act of intercourse must have been forceful. That in turn pointed to a conclusion reasonably open to the jury that Ms Daley was either unconscious, which would explain the applicant’s account of her not crying out in pain; or that she was so intoxicated that her ability to perceive what was happening around and to her, and her ability to understand the consequences of it, was so profoundly impaired that she did not freely and voluntarily agree to the particular act of sexual intercourse.

37. [310]

    Further evidence of an absence of consent was to be found in the medical evidence of Dr Cala and Dr Lincoln of “fingertip” bruising on Ms Daley’s upper, inner thighs, which suggested that her thighs had been held firmly apart, an act that would only have been necessary if Ms Daley were not freely and voluntarily consenting to and participating in the act of intercourse.

38. [311]

    The applicant’s inconsistent accounts of events provided further evidence in support of the Crown case.

39. [312]

    It was well open to the jury to be satisfied to the requisite standard that Attwater performed a vigorous and likely repeated act of “fisting” at a time when Ms Daley did not or could not consent to that act and when he was, at least, reckless to the lack of consent from her. That charge being readily capable of proof beyond reasonable doubt, a verdict of guilty to the manslaughter charge, on the basis of unlawful and dangerous act, followed. Alternatively, having regard to the amount of blood Ms Daley lost because of what Attwater did to her, and his subsequent failure to secure assistance for her, a verdict of guilty on the basis of criminal negligence was open.

40. [313]

    The Crown relied upon the same arguments with respect to the jury’s verdict concerning count 2, the charge of aggravated sexual assault. That is, there was an abundance of evidence to establish that Ms Daley was unconscious, in an alcohol induced stupor, or otherwise so heavily intoxicated that she either did not consent to an act of oral intercourse, or could not freely and voluntarily consent to it.

41. [314]

    On Maris’ account to police, Ms Daley continued to drink after arriving at the beach after the trip to Iluka and, that being so, her blood alcohol level was likely to have been much higher than it was at the time of her death, as high as 0.46 grams per 100 millilitres of blood.

42. [315]

    Maris, being well aware of Ms Daley’s considerable and virtually continuous consumption of alcohol over an extended period was at least reckless as to her consent.

43. [316]

    The verdict of guilty to this charge was well open to the jury.

44. [317]

    As to count 3, the hinder offence, there was a significant body of evidence to support the integrity of the verdict of guilty. The evidence established that Ms Daley did not or could not consent to intercourse and that Maris knew or was reckless as to this. By his own admission he was aware that Attwater had “fisted” Ms Daley, since he saw it occurring. He was also aware that she was bleeding, as he told others that there had been “blood everywhere”. Against that background and noting the evidence as to the timing of the fire, the only reasonable inference available is that Maris burnt the mattress and Ms Daley’s bra intending to destroy evidence of the act done by Attwater that had caused Ms Daley’s death. His account of having decided to burn the mattress because it smelled was implausible.

45. [318]

    A ground of this nature, which seeks to challenge the reasonableness of the verdicts returned by the jury, falls to be determined in accordance with well settled law. That law is cumulatively derived from M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, and Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, as applied and explained in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12.

46. [319]

    Those principles require this Court to make an independent assessment of the evidence led at trial to determine whether the verdicts returned by the jury were reasonably open. As the High Court said in M v The Queen, at 493:

47. [320]

    In undertaking that task, the primacy of the jury as the body constituted to determine the verdicts to be returned in a criminal trial must be borne in mind. Setting aside a jury’s verdict as unreasonable is a most serious step to take, as the High Court said in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]:

48. [321]

    That principle has additional resonance in this case for two reasons. Firstly, the jury had the advantage of not just seeing and hearing from witnesses, but also the further, considerable, advantage of a view of the three sites at Ten Mile Beach, which gave context to the overall evidence in a way that the electronic record of the view available to this Court cannot. Secondly, consideration of the manslaughter count against Attwater involves the application of a “reasonable person” test, a test that a jury is typically best suited to apply, bringing to bear, as a jury’s consideration of any issue does, the life experience and understanding of human relations of twelve (or in this instance eleven) individuals.

49. [322]

    As the parties have submitted, count 2 of the indictment, the charge of aggravated sexual assault brought against both Attwater and Maris, was the lynchpin of the Crown’s case against each. Proof of this count was necessary for the Crown to establish manslaughter by unlawful and dangerous act charged against Attwater, and to establish the hinder offence charged against Maris.

50. [323]

    It is sensible to consider this count first in assessing the applicants’ contention that the verdicts returned by the jury against each of them were unreasonable and unsupported by the evidence.

51. [324]

    In considering the integrity of the verdicts returned against both Attwater and Maris with respect to count 2, the specific starting point must be the relevant legislation. The offence is one contrary to s 61J(1) of the Crimes Act which, as at 26 January 2011, provided:

52. [325]

    For the Crown to prove count 2 of the indictment against Attwater, it had to establish to the requisite standard of proof beyond reasonable doubt that:

    1. (1)

       The applicant Attwater had sexual intercourse with Ms Daley, where the act relied upon was the insertion of Attwater’s fingers, hand, or fist into Ms Daley’s vagina;

    2. (2)

       Ms Daley did not consent to the act of intercourse, or its continuation;

    3. (3)

       Attwater knew that Ms Daley did not consent; and

    4. (4)

       Attwater was in company with Maris, this being the circumstance of aggravation relied upon.

53. [326]

    The elements to be proved by the Crown against Maris are the same, although the factual basis differs in some regards: the act of intercourse was one of penile – oral intercourse, and the person with whom he was in company at the material time was Attwater.

54. [327]

    The phrase “without the consent of the other person” used in s 61J(1) is to be understood by reference to s 61HA of the Crimes Act, as it applied in January 2011. This provision, which deals with consent in relation to offences of sexual assault, including those charged under s 61J, provides:

55. [328]

    As can be seen from that provision, the intoxication of either man was not a feature that the jury was entitled to consider when considering their respective knowledge about consent (s 61HA(3)(e)), so that aspect of the facts of events of 26 January 2011 can be put aside for the purposes of consideration of this count.

56. [329]

    By reference to s 61HA, the Crown’s case was that Ms Daley did not or could not consent to the particular act of intercourse that occurred, being a forceful penetration of her vagina by Attwater’s hand or fist; and nor did she consent to the insertion of Maris’ penis into her mouth; because of her cognitive state at the time, being heavily intoxicated or unconscious.

57. [330]

    In our opinion, having reviewed the whole of the evidence adduced at trial, the verdicts returned by the jury with respect to both applicants were open on that evidence. As the Crown submitted, to the jury and to this Court, there was a solid body of evidence from which the jury was entitled to infer that Ms Daley did not consent and, bearing in mind the broad attribution of knowledge provided for by s 61HA, that each man knew it.

58. [331]

    Although a great deal of emphasis was placed upon the evidence of Dr Perl in the argument before us, the jurors were enjoined to have regard to the whole of the evidence and, when considering that evidence, to use their life experience and common sense. The totality of the evidence, from both witnesses who had seen Ms Daley in and around Iluka and from expert witnesses, provided a sound basis upon which to conclude that, either, Ms Daley was so heavily intoxicated as to be unable to freely and voluntarily consent, or that she was unconscious from the effects of alcohol and did not consent. In either case lack of consent was clear. A conclusion that each applicant knew, or at the very least was reckless to that fact, or had no reasonable grounds to believe that she consented, was also soundly based.

59. [332]

    In Maris’ case he had been in Ms Daley’s company since 25 January 2011 and was aware that she had been drinking solidly during much of the time they had been in each other’s company. A focus of their joint activities prior to leaving for Ten Mile Beach had been on the acquisition of alcohol. In his first interview with D/S Burke, Maris said that Ms Daley borrowed money from someone on the morning of Australia Day to buy alcohol, and they then went to a bottle shop for that purpose. They met up with friends and were drinking beer and wine at “the bay”. They went to Back Beach and were drinking there and, after going to buy food [to Iluka], parked in the sand dunes and “we just drank, pretty much, we were there for a long time”. Maris said that the sexual activity occurred after that.

60. [333]

    Attwater gave as the reason for the trip to Ten Mile Beach to go fishing and to “get on the fuckin’ piss”. He told D/S Burke in his first interview that they had driven to the area and both he and Ms Daley “were both drinking fucking wine”. He said it got dark after that. He referred to the sexual activity as happening “later, late, late man”.

61. [334]

    On each of the initial accounts given by the applicants to D/S Burke, it was open to infer that Ms Daley was drinking before and after they arrived at Ten Mile Beach. Her level of intoxication, it may be inferred, was higher than that demonstrated in Iluka.

62. [335]

    Ms Daley’s condition on arrival at Ten Mile Beach, before consuming any further alcohol, was able to be inferred by the jury with reference to the evidence of those who saw her in Iluka prior to the journey, supported by the expert evidence. That she was “substantially intoxicated” as contemplated by s 61HA(6)(a) was a conclusion well open to the jury.

63. [336]

    Although Attwater points to some of the observations made of Ms Daley in Iluka, notably that of Karen Collett, the accounts of her condition are consistent in that each witness noted Ms Daley to be well affected by alcohol. Tina Daley saw her sister as early as 5am on Australia Day. At that early hour (when Ms Daley was in the company of Maris) Tina Daley saw that her sister was “drunk”. She was stumbling, and slurring her words. She smelled of alcohol. Craig Peglar saw her later that day at Back Beach, at about 3.30. Ms Daley was still drinking, and had “the stumbles” and “the wobbles up”.

64. [337]

    Within a couple of hours Ms Daley and the applicants had arrived in Iluka, where Ms Daley was still noticeably affected by alcohol. Peter Gallagher, who saw Ms Daley at close range, regarded her as “pretty well intoxicated” with glazed eyes, nodding head dipped to her chest, and eyes drooping closed. He characterised her level of intoxication as “near high”. Mr Lester saw Ms Daley to be very unsteady on her feet. On the top of her body she was wearing only a bra, a circumstance which, for a woman who ordinarily dressed modestly, pointed to a high level of intoxication. Mr Lester thought Ms Daley was highly affected by alcohol. Karen Collett also regarded Ms Daley as well affected by alcohol; she made no response at all when Maris made sexual gestures towards her in the aisles of the grocery store. Although Ms Collett’s observations of Ms Daley turning her buttocks and yelling “anyone want a piece of this” when out in the street were relied upon by Attwater to point to Ms Daley’s evident co-ordination and cognitive awareness at this time, it was entirely open to the jury to conclude, conversely, that Ms Collett’s evidence was in keeping with that of other witnesses, and pointed to the high level of intoxication under which Ms Daley was labouring at the time.

65. [338]

    The evidence of Ms Daley’s family was that she was a modest woman, who typically wore clothes that concealed her body, being very “body conscious”. For a woman who was conscious of her body in that way, and who ordinarily kept herself covered, to dress in no more than a bra to cover her torso, and to draw attention to her exposed bottom bespeaks drunkenness, not cognitive clarity. That she could subsequently pull up the tracksuit pants that Maris had pulled down says little about her capacity; it is, after all, an act that requires little conscious thought, or dexterity.

66. [339]

    Mr Newton’s evidence supports this conclusion. Like Mr Gallagher, he saw Ms Daley at close range, and saw her to be “very very intoxicated”. He said that “she didn’t really know where she was”. Also consistent with Mr Gallagher’s observations, Mr Newton saw that Ms Daley was sitting in the car with her head down, her chin resting on her chest. When Attwater made what most women and all right minded people would regard as an insulting and humiliating comment about her to Mr Newton, a stranger, in which she was referred to as a “thing” to be dropped “down the road”, she did no more than raise her head and make an incoherent sound. That she neither protested nor responded to the insult may well have been regarded by the jury as saying a great deal about her intoxication and capacity at that time.

67. [340]

    If the sexual activity occurred at around or soon after twilight, as the bulk of the evidence suggested, and even if she had consumed no further alcohol after arriving at Iluka, Ms Daley’s level of intoxication would have been little different at that time from the point at which these observations of her were made. Even without any further consumption of alcohol after Iluka, she would have been little improved in terms of her level of sobriety, on the evidence of both Dr Perl and Professor Christie.

68. [341]

    It is open to conclude however that, as intoxicated as she was at that point, Ms Daley consumed further alcohol between that time and the time of the sexual activity, the latter being unknown, but between twilight and a point some hours after twilight. On that basis alone it was open to the jury to conclude that Ms Daley did not or could not consent to sexual intercourse, whether the forceful penetration of her vagina by a hand or fist, or the broadly contemporaneous insertion of a penis into her mouth. There is, however, other evidence.

69. [342]

    Admitted against both Attwater and Maris was Attwater’s comment to the Triple 0 operator on the morning of 27 January 2011 that Ms Daley had been “blind. She was off her fucking face last night”. With that knowledge available to be attributed to both applicants, the description of each to D/S Burke of what each believed suggested Ms Daley’s consenting participation in acts of sexual intercourse may have been regarded by the jury as significant, and pointing clearly to the absence of consent.

70. [343]

    When asked by D/S Burke about Ms Daley’s consent to sex during the first interview, on the beach on 27 January 2011, Attwater failed to point to any positive act or word of Ms Daley’s that was consistent with consent. He was asked how sex had started, and replied:

71. [344]

    If that statement was accepted by the jury as truthful and, as an admission against interest there was no reason not to accept it, Ms Daley was not the initiator of any sexual activity between her and Attwater. When asked if sex had been “consensual”, Attwater responded “for sure”, but gave no account of anything said or done by Ms Daley from which he could have reasonably concluded that the act was done with her consent.

72. [345]

    In his second interview, on 3 March 2011, Attwater said that, on arriving at Ten Mile Beach he and his companions had been talking and drinking prior to sexual activity occurring. He said “we ended up in the back” of the troop carrier where he was “fingering” Ms Daley whilst she was “sucking Paul”. Attwater claimed:

73. [346]

    When asked, “How do you know she was all right with what was happening”, Attwater responded:

74. [347]

    It was well open to the jury to conclude that Ms Daley was incapable of making any protest, as she was incapable of giving free and voluntary consent to the act committed by Attwater (or Maris) upon her, and that his reliance upon her failure to protest as equating to consent was reckless at best.

75. [348]

    That conclusion is further reinforced by the expert and other evidence, both as to the nature of the injury occasioned to Ms Daley by Attwater’s act of intercourse and her apparent failure to respond, and as to Ms Daley’s blood alcohol level at death.

76. [349]

    Both Mr Jarrett and Ms Norman deposed that Attwater had admitted to each separately that he had “fisted” Ms Daley, consistent with what he had told D/S Burke on 27 January 2011, albeit in a less forthright way (and in contrast to the more benign description he gave the detective on 3 March 2011). That he “fisted” her is supported by the expert evidence, including that of Dr Ellis, called by Attwater in his case.

77. [350]

    Dr Lincoln and Associate Professor Bland both regarded the injuries inflicted on Ms Daley as severe in nature, the infliction of which would cause a very high level of pain. The jury had the benefit of extensive expert evidence on this aspect of the matter, and it was well open to the jury to accept evidence which likely accorded with the general knowledge and life experience of its members. That is, the jury may have readily accepted that significant and deep tearing injuries extending from the clitoris through the external genitalia and into and along the vaginal canal would have been extremely painful, to the extent where only extreme intoxication or unconsciousness could have prevented some cry or other expression of pain being given by Ms Daley.

78. [351]

    The jury also had the benefit of 11 sets of life experience when assessing this evidence. It may be assumed that at least some of its members would have had experience of pain, and possibly of extreme pain. That ordinary life experience was available when considering the evidence of Dr Lincoln and Associate Professor Bland, and doubtless informed the assessment made of it. Before us it was contended that, without knowledge of Ms Daley’s individual capacity to bear pain, her “pain threshold”, the significance of the expert evidence was muted or even irrelevant. That submission should be, respectfully, rejected as nonsense. The jury, with all of the life experience of its members brought to bear, was entitled to conclude that the injuries of which it saw graphic evidence would have caused pain to any woman who suffered them, regardless of any individual capacity to tolerate pain.

79. [352]

    Had Ms Daley been able to cry out in pain, it was open to the jury to conclude that she would certainly have done so, and protested at the injury being inflicted on her. That she did not points strongly to her state of unconsciousness or heavy stupor. This evidence in turn supports the conclusion that the jury doubtless drew that Ms Daley did not say “stop it”, as Attwater assumed she would if she did not want him to penetrate her in the way he did, because she could not.

80. [353]

    This evidence received further reinforcement by the pharmacological evidence, from both Dr Perl and Professor Christie. Both were in agreement that, if Ms Daley did not consume any further alcohol after the acts of intercourse, her blood alcohol level at a time between twilight and midnight on 26 January 2011 could be estimated with rough accuracy by working backwards from her blood alcohol level at death.

81. [354]

    If, as we have posited they could and must have, the jurors accepted the evidence of Dr Lincoln and Associate Professor Bland as to the severe nature of the injuries inflicted upon Ms Daley, and how those injuries would affect her subsequent conduct, it was well open to the jury to reject Attwater’s self-serving account of Ms Daley laughing, talking, and drinking after the sexual act, and accept the expert opinion that she would have been in too severe pain, and bleeding too heavily, to be happily imbibing further alcohol.

82. [355]

    On that basis, it is likely that Ms Daley’s blood alcohol level was in the vicinity of 0.46gm/ml, that is, she was likely comatose at the time of the sexual activity, regardless of her assumed heightened level of tolerance to alcohol. The fingertip bruising found on Ms Daley’s upper inner thighs is consistent with that conclusion. Her thighs had to be forcibly opened to permit the sexual act perpetrated by Attwater to be carried out; she was not able to move them herself.

83. [356]

    That Ms Daley was heavily intoxicated at the time when he thrust his hand or fist into her vagina must have been apparent to Attwater, because of his own observations of her, because of his knowledge of how much alcohol she had consumed, because he regarded her as “off her fucking face” and “blind”, and because of the momentum that he used in forcing his hand or fist into Ms Daley’s vagina – moderate force at a minimum, to which she made no outcry.

84. [357]

    It was well open to the jury to conclude that Ms Daley could not consent to the act performed by Attwater and that he knew that she did not, was reckless as to whether she consented, or had no reasonable grounds for believing that she consented.

85. [358]

    With respect to Maris, he was similarly aware that Ms Daley was “blind” on the night of 26 January 2011. He had, as we have already observed, been with her since 25 January 2011 and was aware in a general way of her level of consumption of alcohol. He told D/S Burke on 27 January 2011 that, before they arrived at Ten Mile Beach, she had appeared “a little bit druggie [or groggy]”, as she had been drinking even before the two of them drove into town at about 9.30am on Australia Day. He said that he, Attwater and Ms Daley had come up to the sand dunes and “just drank”. After having “a good drink” at Site One, they “had a bit of sex”. That is, on Maris’ account, Ms Daley had consumed a quantity of alcohol after the observations of her in Iluka, when she was regarded as highly intoxicated, had been made.

86. [359]

    It was after that, and after Attwater and Ms Daley were, on Maris’ account, “having sex there for a fair while” and Attwater had “fisted” Ms Daley, that Maris got “a head job”. As to consent, Maris told D/S Burke, “there was no violence or anything like that”. We observe here, although it should not require comment, that violence additional to that inherent in an act of unwanted intercourse is not necessary for an act to be a sexual assault. The jury may have thought it significant that Maris appears to have equated an absence of violence with a consensual act. As to consent specifically, Maris gave the following account in answer to questions from D/S Burke:

87. [360]

    Although Maris claimed to D/S Burke that Ms Daley had moved her body to make room for him to position himself in the back of the troop carrier preparatory to the act of oral intercourse, on his account the oral intercourse occurred straight after the “fisting” that he saw Attwater carry out. On the medical evidence, Ms Daley was either unconscious or stuporous such that she did not respond to pain, or was in such pain that she would not have moved her body to facilitate a further sexual act, much less moaned in pleasure at it.

88. [361]

    That a fragment of a cigarette butt with Ms Daley’s DNA on it was found at Site One can say nothing about her state of consciousness or cognition at the time of the acts of intercourse. The source of the DNA, whether lip, finger, or transfer, was not established; when or by whom the cigarette was smoked was not established; how or when the cigarette butt came to be in its location was not established. This piece of evidence was entirely neutral, despite the emphasis given to it at trial by Maris.

89. [362]

    On all of the evidence Maris’ self-serving assertions that Ms Daley was “fine” and “wanted to do it” and moaned with enjoyment as it occurred, were no more than fiction. His description of events could not be true.

90. [363]

    Although Maris submitted to this Court that it was not open to the jury to accept the inculpatory part of what he told the police and reject the exculpatory part of it, there being no rational basis to draw a distinction, that submission is contrary to both the legal directions the jury were properly given, and to the likely life experience that the jurors were asked to bring to bear in their deliberations.

91. [364]

    During the course of the summing up, Fullerton J correctly told the jurors that it was open to them to accept part of what a witness had to say and reject part. The same general principle applies even more so to an untested account given by an accused person to a police officer in the course of interview. The jury was not obliged to either accept as true or reject as false or unreliable the whole of the accounts given by Maris to police. To do so would be contrary to life experience, which would readily suggest to individual jurors that people can be accurate and inaccurate, truthful and untruthful, in the course of a single conversation, or in all that is said about a single topic.

92. [365]

    What Maris – and Attwater – said to police was open to be assessed in light of the whole of the evidence. As noted above, when dealing with ground 1 for both applicants, there were numerous inconsistencies between what each man told others, and what could be established by other evidence. In particular, the account given by each of events after the sexual activity and on the morning of 27 January, were contradicted by other, apparently credible, evidence.

93. [366]

    The jury were entitled to take a more nuanced approach to the assessment of what the applicants told police than either a wholesale acceptance or a wholesale rejection of their respective accounts. It was open to the jury to accept those parts of Maris’ (and Attwater’s) accounts that were against interest, since it is unlikely as a matter of common sense that an individual would fabricate a statement to his or her disadvantage. By contrast, it is likely, or at least possible, that a person in danger of facing criminal penalty for some act might give an untrue account of events, to his or her advantage. Jurors would see such an occurrence in the course of day to day life no less often than the phenomena is observed in the criminal courts.

94. [367]

    On that basis, and having regard to the expert and other evidence and its significance, set out above in relation to Attwater, it was well open to the jury to accept Maris’ admission that he had placed his penis in Ms Daley’s mouth at or shortly after the time when Attwater “fisted” her, but to reject his claims as to Ms Daley “wanting” that act to occur.

95. [368]

    The verdict returned by the jury with respect to Maris for this count was well open to it.

96. [369]

    We do not understand this Court to have said anything in Tabbah v R [2017] NSWCCA 55 that is inconsistent with our determination of this issue. It should be noted that, in Tabbah, the level of the complainant’s intoxication was likely to have been significantly less than that of Ms Daley. Some witnesses regarded the complainant as appearing to conduct herself in a “normal” way at around the time of the commission of the offence, and her likely blood alcohol content was in the range of 0.104 and 0.251gm/ml, although she had also in her body cannabis and an antihistamine, both of which would have had an additional adverse impact on the complainant’s sobriety. Of intoxication and consent, Button J, with whom Hoeben CJ at CL and Payne JA agreed, said, at [166]:

97. [370]

    Once it is accepted that it was open to the jury to be satisfied of the applicants’ guilt of the offence of aggravated sexual assault charged against each, guilt for the remaining offences follows logically to some extent.

98. [371]

    In summing up to the jury the trial judge dealt with count 2 first of the charges brought on the indictment. Her Honour then moved to count 3, followed by count 1. That was a logical sequence in which to direct the jury, since count 1 followed count 2 temporally, and the unlawful and dangerous act relied upon by the Crown to establish manslaughter under that head of liability was the sexual assault by Attwater of Ms Daley. Although, in short written submissions filed with leave after the hearing before us, Attwater argued that it would be no more than speculation to conclude that the verdict returned against count 1 was returned on the basis of the jury concluding that the sexual assault was an unlawful and dangerous act, that is the logical conclusion to draw from the jury’s conclusion in relation to count 2.

99. [372]

    The jury having accepted that Attwater sexually assaulted Ms Daley, the unlawful and dangerous act relied upon by the Crown is highly likely also to have been accepted by it as proved beyond reasonable doubt. When the evidence supporting liability on this basis is carefully considered, that it was open to the jury to so find could not be in doubt.

100. [373]

     Proof of manslaughter on this basis of liability is established by proof beyond reasonable doubt:

     1. (1)

        that Attwater did an unlawful act;

     2. (2)

        the act was dangerous; and

     3. (3)

        the act caused or substantially contributed to Ms Daley’s death.

101. [374]

     That Attwater’s act of thrusting his fist or even hand into Ms Daley’s vagina without her consent and knowing that she did not consent was unlawful follows axiomatically from the verdict returned by the jury to count 2, which we have concluded was open on the evidence.

102. [375]

     That it was a dangerous act is established if a reasonable person in the position of the applicant Attwater, at the time he thrust his fist or hand into Ms Daley’s vagina, would have appreciated carried with it a risk of serious injury being caused. The evidence which went to the surrounding circumstances is of relevance when considering the test of dangerousness. The act was carried out upon a woman in a state of high intoxication, at a relatively remote location, with at least moderate force.

103. [376]

     The first element of unlawfulness may be accepted to have been established to the satisfaction of the jurors to the necessary standard. There is no issue that the act directly caused Ms Daley’s death. The only real argument concerns the question of dangerousness.

104. [377]

     There was a solid body of evidence available to the jury upon which it was open to find the element of dangerousness proved to the requisite standard.

105. [378]

     The applicant himself told the ambulance officer who attended Ten Mile Beach on 27 January 2011, Mr Jarrett; D/S Burke in the interview conducted that same day; and his friend Ms Norman, within a short period after Ms Daley’s death, that he had “fisted” her. The account to D/S Burke was recorded, and the jury were able to hear Attwater’s account of “just about” using his fist on Ms Daley. There was no account to the detective of a relatively gentle insertion of finger after finger until four fingers were inside Ms Daley, moving in the “fishtail” motion he described in the interview of 3 March 2011. The jury may well have regarded that first account, given without an extended period in which to construct a more innocent explanation, as more likely to be closer to the truth than the applicant’s later inconsistent version of his act.

106. [379]

     It received direct support from the applicant’s account to Mr Jarrett of “fisting” Ms Daley, at a time when he and Maris were “spit roasting” her, given complete with a demonstration involving the whole of the fist of one hand being moved in and out of the circular structure made by the fingers of his other hand. Mr Jarrett’s credibility was challenged in evidence. He acknowledged that he had not referred to the applicant’s admission of “fisting” in his statement to police, and it was suggested to him that he had embellished his account of events many years after the incident to draw attention to himself in the context of a television news programme in which he was interviewed. He denied that and maintained the truth of his evidence.

107. [380]

     The jury saw and heard from Mr Jarrett and were well placed to make an assessment of his reliability. Bearing in mind his presentation to the jury, its members may have regarded it as unlikely that a highly experienced and senior intensive care paramedic would fabricate or misstate evidence of that nature. That assessment was open, as was an acceptance of Mr Jarrett’s evidence. There is nothing inherently unlikely in his evidence which points to its necessary rejection.

108. [381]

     The same is true of the evidence of Ms Norman.

109. [382]

     As a friend of both Attwater and Ms Daley, who was aware that Ms Daley had died when on a camping trip with the applicant, she asked him what had happened, and was given an account by him of having “fisted” Ms Daley. It was suggested to her in cross-examination that she had exaggerated her evidence because she favoured Ms Daley and her family over the applicant, but she rejected that, describing herself as being in the middle between the two, and rejecting any loyalty to one party over another. As with Mr Jarrett, there is nothing about Ms Norman’s evidence that of itself suggests that she lied or was mistaken on this aspect of her conversation with Attwater. It was open to the jury, having seen her as she gave her evidence, to accept it as reliable.

110. [383]

     This is important evidence since it is evidence of the applicant’s admission to having carried out an act which, the jury might have considered, was one of some inherent violence, having regard to the size of a man’s fist, as opposed to the size of the structure into which it was inserted.

111. [384]

     That force was required to effect entry into the vaginal canal was clear on the expert medical evidence.

112. [385]

     The weight of the medical evidence is to the effect that the most likely mechanism of injury was the forceful insertion by Attwater of the whole of his fist into Ms Daley’s vagina, at a time when she was highly intoxicated and, inferentially, unable to act for her own protection and welfare, at a remote location removed from any timely medical assistance.

113. [386]

     Dr Cala was not persuaded of the possibility of a four-fingered fishtailing movement causing the second, deeper and longer, wound suffered by Ms Daley. His opinion was that the insertion of a fist with some force over a couple of minutes [this being the movement and time period given by Attwater to D/S Burke in the first interview] was the most likely mechanism of injury.

114. [387]

     Associate Professor Dr Bland was of the view that the two vaginal lacerations sustained by Ms Daley were more likely to have been caused by the insertion of a fist and a movement in and out over about 2 minutes than by the fishtailing movement demonstrated by Attwater on 3 March 2011. He accepted that the fishtailing movement might have caused injury, but only if more vigorously executed than Attwater admitted to.

115. [388]

     Dr Lincoln thought the scenario described by Attwater in his 3 March 2011 did not explain the severe injuries inflicted. Dr Ellis, called by Attwater, could not say one way or the other, but did say it would be “unusual” for the fish-tailing movement to cause the injuries seen in Ms Daley, with the movement of a fist “more likely” to do so.

116. [389]

     The jury had to assess the applicant’s claims to have performed precisely the same act upon Ms Daley in the past without complaint from or injury to her, but it was open to its members to reject that self-serving account in light of the medical evidence. The Crown had relied upon the lies it suggested had been told by Attwater to argue that his exculpatory assertions could not be accepted by the jury as credible or reliable. Acceptance of that proposition was open to the jury, as was a conclusion that the act done was one which carried with it an appreciable risk of serious injury. Even if the applicant had performed a similar act upon Ms Daley in the past, there was no credible evidence to establish that it was the same act, carried out with force of a moderate or greater level. That it was not performed in the past on a woman highly affected by alcohol, without the ability to help herself, who was in a remote location is clear, there being no evidence at all of that proposition.

117. [390]

     Whilst, in his most recent written submissions, the applicant contended that the Court should have regard to the possible experience of jurors in participating in such an act themselves, or watching pornography of that nature, we would not proceed on that basis. Jurors are asked to have regard to their own ordinary life experiences and common sense in determining factual issues before them; we do not regard that as a basis upon which to speculate that individual jurors had engaged in or viewed what, on all of the credible evidence, was not a sexual act which might be categorised as one within the description of ordinary.

118. [391]

     On the whole of the evidence, the verdict of guilty returned to count 1 of manslaughter, charged against Attwater, was open to the jury.

119. [392]

     Given the high likelihood of the jury finding Attwater liable for Ms Daley’s manslaughter on the basis of an unlawful and dangerous act, it is perhaps not strictly necessary to consider the integrity of a verdict of guilty to manslaughter returned on the basis of criminal negligence. However, for completeness, we have also examined the evidence that supported that basis of liability and concluded that a verdict on the basis of criminal negligence was also open to the jury.

120. [393]

     To prove manslaughter under this head of liability, the Crown had to prove that:

     1. (1)

        having caused injury to Ms Daley in circumstances where, due to her intoxication and remote location, removed from other help, the applicant owed her a duty of care;

     2. (2)

        the scope of that duty owed to Ms Daley included a duty to secure timely medical assistance for her;

     3. (3)

        the applicant failed to obtain aid for Ms Daley and thus breached the duty he owed her;

     4. (4)

        his failure to secure medical assistance was a substantial cause of Ms Daley's death;

     5. (5)

        the nature of his breach of duty was such as to merit criminal punishment because it fell so far short of the standard of care a reasonable person would have exercised in all of the circumstances, and involved a high risk that very serious bodily harm or death would follow as a result of the breach.

121. [394]

     There is no doubt that, even on Attwater’s account, he was aware that Ms Daley was bleeding following the act of intercourse. He told D/S Burke that he noticed “a little bit of blood” on his hand and stopped penetrating Ms Daley’s vagina as a consequence. Inferentially, he had linked his act of penetrating Ms Daley, with the blood emanating from her vagina. He knew that Ms Daley was not menstruating, and the blood could not be menstrual blood. Following the act, he said that Ms Daley went to sleep in the back of the troop carrier for a long time. It seems that he did not check on her welfare, despite the bleeding he had observed.

122. [395]

     The bulk of the medical evidence was that Ms Daley would have bled rapidly and lost a substantial amount of blood. The crime scene evidence (referred to below in the context of count 3) suggested that the mattress had been soaked through with blood. The jury may have reasoned that Attwater could not have been unaware that something was seriously wrong with Ms Daley and she required medical assistance. It was entirely open to the jury to reject his assertions that there was only a small amount of blood during intercourse and that, thereafter, Ms Daley was well and showed no signs of any distress or illness. His assertions in that regard were inconsistent with the significant body of medical evidence which was largely all in one direction.

123. [396]

     Despite having brought her to an isolated location, away from the aid of others, having injured Ms Daley, and being aware that she was bleeding likely heavily, Attwater did nothing to assist Ms Daley, until the following morning when, on one view of the evidence of those first at the scene on 27 January 2011, and on the evidence of Dr Cala in particular, she was already dead.

124. [397]

     In the unlikely event that the jury moved to consider the alternative basis of liability for manslaughter, the verdict returned was open on the evidence.

125. [398]

     With respect to the third count of doing an act to hinder an investigation, charged against Maris, necessarily the jury concluded, by the verdicts returned in relation to count 2, that Maris was aware of the sexual assault of Ms Daley by Attwater. He told D/S Burke in his first interview that he had seen Attwater “fisting” Ms Daley prior to joining the activity and placing his penis in Ms Daley’s mouth.

126. [399]

     The Crown had additionally to prove that, in burning the mattress and, at least, Ms Daley’s bra, Maris intended to hinder the discovery of evidence concerning that crime. This requires proof of specific intent, to which Maris’ state of intoxication or otherwise was relevant.

127. [400]

     In support of that aspect of the matter, the Crown relied upon the evidence of what Maris had told police about the fire he lit, the observations of Mr Miller of the fire from further up the beach on 27 January 2011, the crime scene evidence concerning blood depositions and likely blood depositions in the troop carrier, the failure to locate Ms Daley’s tracksuit pants and shirt, and the timing of these events to prove the applicant Maris’ guilt. In our opinion, it was open to the jury to accept that evidence and return the verdict it did.

128. [401]

     Turning firstly to the timing of the fire, the objective evidence was such that the jury likely rejected Maris’ account of when and why he set the fire, as inconsistent with the evidence of Mr Miller, and inconsistent with the overall evidence of time.

129. [402]

     The applicant told D/S Burke that he decided to burn the mattress because it was malodorous, and started the process after Attwater and Ms Daley had gotten up and gone in for a swim on the morning of 27 January 2011. Working backwards from the time of the call to the Emergency Operator, that must have been at around or minutes before 6am. However, Mr Miller saw the fire, already well alight, with high flames and an apparently heavy fuel load, well before dawn that morning, significantly earlier than Maris had acknowledged to police.

130. [403]

     Further, although there was, on the account of Maris, only a very short period between Attwater and Ms Daley going swimming, and Attwater calling out for help, a matter of minutes, the process of stacking the items to be burnt and lighting the fire must have taken much longer. That process involved obtaining diesel from the fuel tank of the troop carrier, a process that itself required fishing rods to be removed from the vehicle, the bonnet raised, and the fuel extracted by a complicated process of bleeding the fuel into a bottle, before resecuring the fishing gear so that it was on the troop carrier when Mr Miller and others arrived. The fire had to be laid and started; and the fuel load gotten well alight, all before Attwater called for help.

131. [404]

     That the applicant would have gone to these extraordinary lengths to burn a mattress and (at least) a bra, at that time in the overall chronology of events, because of odour, was inherently unlikely.

132. [405]

     That the fire was brought about in these circumstances, within the narrow time frame involved, is unlikely or even impossible on the evidence. His act of obscuring the fire bed by parking the troop carrier over it, points to his active concealment of the fire, a concealment not necessary if he did no more than burn rubbish.

133. [406]

     Although it is likely that this account of events was untruthful in terms of the time the fire was lit, the process of lighting it described by Maris was likely to be relatively reliable, and this evidence was available to the jury to inform its consideration of the applicant’s capacity to form the specific intent to destroy evidence. If Maris could complete that process prior to calling triple 0, it was open to conclude that he was capable of forming the specific intent to destroy the evidence of the bloody mattress and clothes.

134. [407]

     That it was bloody is open to be inferred on the cumulative weight of the medical evidence, and the crime scene evidence. Maris himself told D/S Burke that there was “blood everywhere” after the fisting incident. On Dr Lincoln’s evidence, and on that of Dr Bland, it is most unlikely that Ms Daley moved from the mattress in the back of the troop carrier until she was removed from it by Attwater and taken to the ocean on the morning of 27 January 2011. If so, the blood lost would have largely been deposited on her clothing, and on the mattress. Dr Cala estimated that the quantity of blood lost by Ms Daley prior to death was substantial, being almost half of the whole of her body’s blood content. It is likely that the mattress and her clothing were very heavily blood stained indeed.

135. [408]

     That prospect is strengthened by blood stain pattern evidence to the effect that some blood stains on the floor of the troop carrier likely represented blood having soaked through the mattress to reach the floor and be deposited there.

136. [409]

     It is not insignificant in light of that evidence that Ms Daley’s tracksuit pants and t-shirt were never found. Since her partially burnt bra was found on the pyre, it was open to the jury to infer that, despite his denials, Maris burnt all of her clothing, and not just her bra (either by accident as he gave it in his first account, or because it was blood stained and he thought Ms Daley would not want it, as he said in his later account). It was also open to infer that he burnt the clothing and the mattress to destroy what would have been the most compelling evidence of wrongdoing.

137. [410]

     On the whole of the evidence, we regard it as having been open to the jury to return a verdict of guilty to count 3.

138. [411]

     This was, in our opinion, a most compelling case for the guilt of both applicants of the charges brought against them. Although leave should be granted to advance this ground, we would dismiss it.

Conclusion - Conviction Appeals

1. [412]

   Whilst we would grant leave to both applicants to advance their respective appeals against conviction, each must be dismissed.

2. [413]

   In his notice of appeal, the applicant Attwater seeks leave to appeal on the following grounds:

3. [414]

   The applicant Maris seeks leave to appeal on the following grounds:

4. [415]

   The two grounds upon which Maris seeks leave to appeal are two of the grounds contained in Attwater’s grounds of appeal. It is convenient, therefore, to deal with the grounds together using Attwater’s grounds as the template.

5. [416]

   The issues forming the basis of this ground arose from the need that her Honour discerned (at [35], [36] and [39] of her sentence judgment) to determine whether Ms Daley’s consent to sexual intercourse was negatived because the extent of her intoxication rendered her unconscious (as provided for in s 61HA(4)(b) of the Crimes Act, or whether there was a reasonable possibility that she was conscious at the time of sexual intercourse but that she did not freely or voluntarily consent to intercourse because her level of intoxication was substantial. Her Honour said (at [39]) that the resolution of that question would have an obvious and direct bearing on the assessment of objective seriousness of both the offences for which the applicant Attwater was to be sentenced.

6. [417]

   Her Honour said (at [40]) that another question she needed to resolve, which bore on an assessment of an objective seriousness, was whether she was satisfied beyond reasonable doubt that Attwater could have had no honest belief that Ms Daley was consenting to sexual intercourse with him, or whether she should accept the reasonable possibility that Attwater genuinely believed Ms Daley was consenting to sexual intercourse, accepting as Attwater acknowledged he must, that the belief was not held by him on reasonable grounds.

7. [418]

   Her Honour’s finding at [81] was:

8. [419]

   The applicant Attwater submitted that this finding as to the deceased’s level of intoxication of the time of the sexual intercourse was not open on the evidence at trial because that evidence involved unknown factors or “imponderables” not capable of resolution.

9. [420]

   He relied also on submissions made in support of the ground of appeal asserting that the verdict was unreasonable as far as the deceased’s level of intoxication was concerned. Those submissions are set out earlier in this judgment at [288] to [301]. She pointed in particular to the fact that the sentencing judge appeared to have adopted what she described as the Crown prosecutor’s erroneous and misleading chronology of the observations made of the deceased at Iluka on 26 January 2011. This was the chronology put to Dr Perl in her evidence as follows:

10. [421]

    It was submitted that the sentencing judge’s conclusion that Mr Attwater must have known the deceased was not consenting appears to have been reached because of her finding as to the deceased’s level of intoxication. It was submitted that that earlier finding was flawed.

11. [422]

    The Crown submitted that the sentencing judge did not mistake the facts, and her findings were well open on the evidence. The Crown submitted that these findings, that any responsive levels of cognition or reasoning would have been so severely compromised that it would have been obvious to anybody in her company who was paying her due attention and regard that she could not freely and voluntarily consent to intercourse, were made after an extensive analysis of the evidence at trial.

12. [423]

    It is not necessary, for the purposes of determining this ground of appeal, to enter into the debate about the powers of this Court when a challenge is made to fact finding by a sentencing judge. The traditional test, set out in R v O’Donoghue (1988) 34 A Crim R 397 at 401, may be stated as being that a finding was not open to the sentencing judge: Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220 at [2] and [26]; see also Gibson v R [2019] NSWCCA 221 at [2]-[5] (per Bathurst CJ) and [57]-[61] (per N Adams J, Beech-Jones J agreeing). The present ground of appeal is put on the basis that her Honour’s finding at [81] of her judgment was not open on the evidence.

13. [424]

    The applicant Attwater accepts that he should be sentenced on the basis that the deceased did not freely and voluntarily consent to intercourse because she was substantially intoxicated by alcohol. It may be seen from our summary of the evidence of both Dr Perl and Professor Christie at [206] to [222], and our analysis of that and the other evidence touching on the deceased’s level of intoxication at [331] to [367], that her Honour’s conclusion at [81] of her judgment was open to her. The evidence of both Dr Perl and Professor Christie also demonstrates that the way the chronology was put to Dr Perl by the Crown Prosecutor was not a material matter for the conclusions that each reached as to the level of the deceased’s intoxication.

14. [425]

    Further, it is not demonstrated in the present case that the sentencing judge gave weight to a fact not proved in evidence, nor that her Honour acted on a wrong principle (Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353 at [13]), so that even if the more liberal test for factual review were applied here, error would not be established.

15. [426]

    We reject this ground.

16. [427]

    Both applicants drew attention to the submission made by the Crown at the sentence proceedings that the sexual offence was mitigated pursuant to s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Act”) because the offence did not involve planned or organised criminal activity. The applicants submitted that they also identified a lack of planning as a mitigating factor. The applicants submitted that her Honour did not expressly refer to that factor when sentencing them.

17. [428]

    The Crown submitted that it does not necessarily follow from a failure to make express reference to certain statutory factors that the sentencing judge overlooked them or erred in determining the sentence to be imposed. The Crown submitted that the matter should be tested by examining the ultimate sentence imposed to see if it is manifestly excessive.

18. [429]

    The Crown submitted that it was readily apparent that no planning was involved, and that her Honour did not find that the applicants took the deceased to Ten Mile Beach to assault her sexually or kill her. In that way, the fact that the offences were not planned or organised was of little moment, and the Court should conclude that her Honour did not fail to take the matter into account. The Crown submitted that, in any event, in the circumstances of the offending, the fact that the offences were not planned or organised did not provide for substantial or even moderate diminution of the penalty to be imposed.

19. [430]

    Although it would ordinarily be expected that the sentencing judge would refer in his or her sentencing remarks to any submissions made by an offender suggesting that an offence was mitigated pursuant to s 21A(3) of the Sentencing Act or otherwise, it will not necessarily be error if no reference is made to the matter. All of the circumstances of the offending need to be considered. Error is more likely to be demonstrated if there is a dispute as to whether the mitigating factor is present.

20. [431]

    In the present case, all parties agreed in their written submissions that there was no planned or organised criminal activity. There was no suggestion in the evidence at the trial of any plan or intention on the part of the applicants to take the deceased to the places where they went in order to sexually assault her. Indeed, at the sentence proceedings, when the matter of intoxication was being debated, her Honour expressly noted (T 37, 8/11/17) that it was not put against Mr Attwater that he became drunk to facilitate any pre-planned sexual assault of the deceased.

21. [432]

    In those circumstances, it cannot be reasonably suggested that the sentencing judge did not take into account that the offences were not part of a planned or organised activity. We would reject this ground in each of the applicant’s appeals.

22. [433]

    The applicant Attwater submitted that the dangerousness element in the form of manslaughter for which he was sentenced comprehends the full spectrum of subjective states of mind. At one end of the spectrum it was submitted that the offender might have had no, or very little, appreciation of the objective danger and that, at the other end, the offender might have fully appreciated the danger so that the position was just short of reckless murder. Attwater submitted that an assessment of the offender’s state of mind must be made because an offender’s subjective appreciation of his or her act is a factor that can inform his or her moral blameworthiness. In many instances, it was submitted, an offender who appreciates the danger to which he or she is exposing the victim will be more morally culpable than an offender who does not so appreciate the danger.

23. [434]

    Attwater submitted that he was not prosecuted for the intentional or reckless infliction of actual bodily harm because he was not charged with an offence contrary to s 61JA(1) which has as an element the intentional or reckless infliction of actual bodily harm. It was therefore necessary to sentence Attwater for manslaughter on the basis that he had not intentionally or recklessly inflicted the injuries, so that the only consistent finding available was that he did not subjectively appreciate that his unlawful act was objectively dangerous in the sense of exposing the deceased to the risk of serious injury. The applicant Attwater submitted that her Honour’s reasons showed that she did not take this material consideration into account.

24. [435]

    The Crown submitted that there was no basis for her Honour reducing the sentence imposed on account of the absence of the factor of intentionally or recklessly inflicting actual bodily harm. The Crown submitted that in the absence of the applicant being charged with an offence under s 61JA, all that could be concluded was that he did not subjectively appreciate the dangerousness of the act. It was not necessary for her Honour to say anything else.

25. [436]

    In her sentencing judgment, the sentencing judge first noted (at [28]) that the agreed position on sentencing was that Attwater should be sentenced for the deceased’s manslaughter on the basis of an unlawful and dangerous act. Her Honour said in relation to the objective seriousness of the manslaughter at [113]:

26. [437]

    The applicant’s challenge in this ground is, with one qualification, a challenge to the sentencing judge’s assessment of the objective seriousness of the offence. The qualification is that what appears to be asserted is that the sentencing judge failed to take into account a relevant consideration, namely, the applicant’s subjective appreciation of the dangerousness of the unlawful act.

27. [438]

    The starting point is what was said by this Court in Mulato v R [2006] NSWCCA 282 at [37]:

28. [439]

    Her Honour had earlier made a number of findings in relation to the sexual intercourse engaged in by Attwater with the deceased. It was that sexual intercourse which constituted the dangerous act element of manslaughter. These findings were:

29. [440]

    Those findings speak eloquently of Attwater’s subjective appreciation of the dangerousness of his unlawful act. To the extent that he did not actually have that subjective appreciation, his moral culpability is not reduced because, as her Honour noted, were he paying the deceased any attention, the injuries from his acts would have been obvious from the “rapid, immediate and either profuse or significant bleeding”.

30. [441]

    These findings demonstrate that her Honour did not fail to consider the applicant’s subjective appreciation of the dangerousness of his acts. When they are considered with her Honour’s ultimate assessment of the objective seriousness of the manslaughter offence, it cannot be said that the determination of extreme objective seriousness reflecting a high level of moral culpability was not open to her.

31. [442]

    We reject this ground.

32. [443]

    The applicant Attwater submitted that the sentencing judge took into account an irrelevant consideration when considering delay, namely, the harmful impact on the deceased’s family caused by the DPP’s delay in prosecuting. Attwater submitted that although the sentencing judge acknowledged that the delay was caused solely by the DPP and not by either of the applicants, her Honour took into account the harmful impact of delay on the deceased’s family. Attwater submitted that such a circumstance could not inform the question of punishment.

33. [444]

    The Crown submitted that the weight to be given to a factor in sentencing was a matter for the sentencing judge’s discretion and would ordinarily only be considered in respect of a ground alleging manifest excess. The Crown submitted that the sentencing judge accepted that the delay in the prosecution of the applicants operated unfairly on them, and it was open for her Honour to find that moderate weight only should be given to that delay.

34. [445]

    The Crown submitted that the sentencing judge did not take into account the delay and its effect on the deceased’s family when considering the question of delay in relation to the sentence. Rather, her Honour made clear by her reference to s 3A(g) of the Sentencing Act that she could only have regard to the harmful impact of the deceased’s death as was reasonably foreseeable by Attwater. There were two matters which were reasonably foreseeable, being the circumstances in which the fatal injuries were inflicted, and Attwater’s knowledge of the deceased’s family situation. The Crown submitted that her Honour accepted that the impact of the delay on the deceased’s family was not a matter that could be regarded as reasonably foreseeable by Attwater.

35. [446]

    Her Honour dealt with the issue of delay in her sentencing judgment on Sentence from [174] to [200]. The issue arose in this way. On 19 April 2011 the applicant Attwater was charged with aggravated sexual assault and manslaughter. On 21 April 2011 the applicant Maris was charged with aggravated sexual assault and being an accessory after the fact to manslaughter.

36. [447]

    On 12 March 2012 the DPP directed that no further proceedings be taken in respect of any of the charges against either of the applicants.

37. [448]

    In August and November 2014, a coronial inquest into Ms Daley’s death was held at Grafton Local Court. On 27 November 2014 the State Coroner referred the matter to the DPP pursuant to s 78 of the Coroner’s Act 2009 (NSW). Section 78 operates so that, where the Coroner is of the opinion that the evidence adduced in a coronial hearing is capable of satisfying a jury that a known person has committed an indictable offence of a kind which raises the question whether the person has caused the death of a person, and there is a reasonable prospect that a jury would convict the person of that offence, the Coroner must refer the matter to the DPP.

38. [449]

    Following receipt of the referral by the Coroner, the DPP directed that no criminal proceedings would be instituted against either of the applicants for the indictable offences that were the subject of the Coroner’s referral.

39. [450]

    In February 2016 the New South Wales Attorney-General requested that the DPP review his decision that no criminal proceedings would be instituted against either or both of the applicants. There was no response to that request before the airing of an ABC Four Corners program concerning Ms Daley’s death. On 11 May 2016 the DPP issued a media release saying that he had sought independent legal advice in relation to the matters raised by the Four Corners program.

40. [451]

    On 23 June 2016 Court Attendance Notices were filed at Grafton Local Court charging the applicants with the same offences they were charged with by police in April 2011. Those proceedings came before Grafton Local Court on 2 August and 6 September 2016, and on the latter occasion were adjourned for further mention to 8 November 2016.

41. [452]

    On 26 October 2016 the DPP requested an exemption from the Chief Justice permitting the DPP to file an ex officio indictment against the applicants in the Supreme Court. On 15 November 2016 the Chief Justice granted the exemption application and the Local Court proceedings were discontinued. On 2 December 2016 the applicants were arraigned in the Supreme Court on an indictment charging Attwater with manslaughter and aggravated sexual assault, and charging Maris with being an accessory after the fact to manslaughter, and aggravated sexual assault.

42. [453]

    On the first day of the trial on 24 July 2017 the Crown presented an indictment against Attwater charging him with the same two offences as those for which he was charged in March 2012 and arraigned in December 2016. On the same day the Crown applied without objection to amend the charges on which Maris had been arraigned by withdrawing the charge of accessory after the fact to Ms Daley’s manslaughter and substituting the offence of hindering the police investigation into Attwater’s sexual offending.

43. [454]

    In her sentencing judgment her Honour relevantly said this concerning delay:

44. [455]

    Her Honour had earlier said this concerning the Victim Impact Statements at [132]:

45. [456]

    It was, perhaps, unfortunate that her Honour returned to the issue of the harm to the family and the Victim Impact Statements when dealing with delay in relation to the applicants. However, the point being appropriately made by her Honour was that the delay by the DPP, without any explanation, had not only impacted unfairly on the applicants but also on the family members. What her Honour said at [132] made very clear that she only considered the harmful impact of the deceased’s death on the family as was reasonably foreseeable by Attwater. Her Honour then identified what was reasonably foreseeable by him, and it is clear that delay was not one of those features. Having made that point, her Honour then went on to deal with delay only as it impacted upon the applicants.

46. [457]

    Her Honour accepted at [190] that the applicant Attwater would have been in a state of uncertain suspense as to whether he would be prosecuted, but she went on to say at [191]:

47. [458]

    Her Honour then concluded:

48. [459]

    An examination of her Honour’s remarks as a whole does not leave us with any doubt that, when she considered the issue of delay, her Honour did not take into account as a factor going to the sentence the impact of that delay on the members of the deceased’s family.

49. [460]

    The applicant Attwater’s submissions in relation to this ground expressed the matter as a complaint that the sentencing judge did not give the factor of delay sufficient weight because she took into account the effect of delay on the deceased’s family. It hardly needs to be said that the question of weight is a matter for the sentencing judge’s discretion: R v Baker [2000] NSWCCA 85 at [11]. The discretion in the present matter did not miscarry because no irrelevant matter was taken into account. We reject this ground.

50. [461]

    The applicant Attwater submitted that extra-curial punishment was a relevant mitigating factor. He put forward a number of matters to the sentencing judge which her Honour found did not warrant any reduction in the sentence. Those matters included threats to the applicant and his family including threats to kill him, the fact that he was pushed, shoved, spat at, punched, had his shirt ripped and his sunglasses taken when in public places and when appearing in Court, his inability to leave home as a result of abuse in the local area, the media stories, the fact that a camera crew from the media camped outside his Queensland house for three days, and the fact that all of these matters gave rise to symptoms of mood disorder.

51. [462]

    He submitted that there was the further matter that he was fearful in prison because of the nature of the offences and the high degree of media interest in the case. He submitted that her Honour’s treatment of these matters significantly downplayed the evidence given by his solicitor and ignored the opinion of the psychologist, Ms Hare, who examined him, even though the evidence of both of those persons went unchallenged. He submitted that Ms Hare diagnosed that he was suffering from a persistent Adjustment Disorder with mixed anxiety and depressed mood as a consequence of the abuse to which he had been subjected. He submitted that it was plainly unreasonable to give the issue no weight.

52. [463]

    The Crown submitted that the weight to be given to extra-curial punishment varies from case to case, and is ultimately a matter for the sentencing judge. The Crown submitted that it was open to her Honour to find that the matters did not warrant a reduction on sentence.

53. [464]

    In R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 James J (Tobias JA and Hulme J agreeing) said at [62]:

54. [465]

    Her Honour noted at [143] that, when in custody, Attwater saw a mental health practitioner to assess his depressed mood and anxiety about his physical safety in custody. Her Honour noted at [144] that Ms Hare diagnosed the applicant with persistent Adjustment Disorder having formed the opinion that the applicant was experiencing difficulty adjusting to custody.

55. [466]

    When discussing the issue of delay and its effect on the applicants her Honour said at [189]:

56. [467]

    Her Honour referred at [192] to an affidavit of the applicant which made reference to an incident when he was leaving Grafton Local Court in August 2016 where he was grabbed, hit and punched by a crowd of people who threatened him with physical harm using extremely aggressive and abusive language. Her Honour said that Attwater did not seek treatment for any of the physical or psychological effects of the abuse or the harassment on that occasion or previously at the hands of members of the public. Her Honour went on to say that that outburst was not repeated in the lead-up to trial or during the currency of the trial.

57. [468]

    Her Honour noted at [193] that where retribution or revenge is exacted by members of the public the Court may take that into account as extra-curial punishment on sentence. Her Honour then concluded:

58. [469]

    In her report dated 26 October 2017, Ms Hare said this:

59. [470]

    Contrary to the applicant’s submissions her Honour did not ignore the opinion of Ms Hare as appears at [143], [144] and [189] of her remarks. It is not apparent, however, that the persistent Adjustment Disorder relates to the extra-curial punishment alleged, except for the fact that Attwater was being held in protective custody.

60. [471]

    Ms Hare reported that the symptoms he first experienced from the abuse and violence immediately following the deceased’s death were alleviated after he moved to Queensland. She said the symptoms re-emerged after he began to be “repeatedly re-investigated” for the deceased’s death. The symptoms were said to be related to the further investigations, his fear in the prison environment after the verdicts were given, and the concerns about his then impending sentencing. The diagnosis made was on the basis that Mr Attwater “was experiencing difficulty adjusting to his circumstances”, which were his then recent incarceration. Ms Hare also said at paragraph 39 of her report,

61. [472]

    The sentencing judge gave express consideration to the fact that both applicants were being held in protective custody due to concerns for their safety. Her Honour said, however, that it was by no means clear that those custodial conditions would continue, and for that reason she declined to regard those conditions as ameliorating the sentence.

62. [473]

    Although the applicant was undoubtedly subjected to abuse and violence as set out in his and his solicitor Martin Bernhaut’s affidavits, her Honour gave consideration to those matters, and she considered Ms Hare’s report in relation to them. It cannot be said that her Honour’s conclusion at [194], which is ultimately a discretionary one, was not open to her.

63. [474]

    We reject this ground.

64. [475]

    The applicant submitted that his joint actions with Maris in calling triple-0 and performing CPR for over 50 minutes in an attempt to revive the deceased was ameliorative conduct that warranted some mitigation on sentence. The applicant submitted that those efforts to save her life should have been taken into account as a mitigating factor on sentence.

65. [476]

    The Crown submitted that post-offence ameliorative conduct does not automatically result in a reduction in the sentence to be imposed. Reference was made to Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279. The Crown submitted that there was no immediate recognition by Mr Attwater of his wrongful act and his actions did not play any role in saving the victim’s life. The Crown submitted that if the applicant had sought medical assistance for the deceased immediately following the sexual intercourse then such conduct might properly be considered as post-offence ameliorative conduct.

66. [477]

    In Thewlis, Spigelman CJ said at [4]-[5]:

67. [478]

    Her Honour said when dealing with the issue of post-offence ameliorative conduct:

68. [479]

    Her Honour’s conclusion must be seen in the light of her other remarks concerning the truthfulness of Attwater’s account of the events up to the time he was administering CPR. Her Honour said:

69. [480]

    Whether or not a mitigating factor is to be taken into account in ameliorating a sentence is a discretionary consideration for the sentencing judge. Having considered the evidence of the applicant’s efforts to revive the deceased in the light of all of his accounts of the events, her Honour’s conclusion was entirely open to her. Attwater does not show that there was anything special about his actions. They may be seen, as her Honour undoubtedly did, as being no more than steps to redress the effect of the crimes on the deceased, or the discovery of his responsibility for them.

70. [481]

    We reject this ground.

71. [482]

    The applicant Attwater submitted that although his counsel had submitted at the sentence proceedings that he had good rehabilitation prospects and was unlikely to reoffend, her Honour did not explicitly say if she accepted or rejected the submission about the unlikelihood of reoffending, although it would appear that she implicitly rejected it.

72. [483]

    The applicant’s senior counsel at the hearing before us submitted that a more favourable conclusion should have been reached. It was submitted that whilst the sentencing judge found a “current lack of insight” into his offending, that matter had to be balanced against a number of other considerations as follows:

73. [484]

    The Crown submitted that the findings were well open to her Honour, and the applicant’s prospects of rehabilitation were rightly assessed in the light of his lack of insight into his offending.

74. [485]

    Her Honour noted the submissions made on behalf of Attwater at [149], including a number of the matters that are now put forward which are said to balance the lack of insight reported by Ms Hare. Her Honour accepted that he had not been convicted of any criminal offence of any gravity since committing the offences involving Ms Daley, but her Honour said that a conviction for trespass and possession of knife in a public place in 2013 could not be ignored. Her Honour noted that he was committed to a stable relationship with his current partner. She noted that he had no prior nor subsequent sex offences on his record.

75. [486]

    Her Honour went on to say:

76. [487]

    As with the previous ground, a finding about prospects of rehabilitation and reoffending is a discretionary finding within the role of the sentencing judge. In circumstances where the sentencing judge has considered relevant matters, if the finding is open on the evidence, this Court will not review and reconsider the finding. This issue is highlighted in the present case where the complaint is “that a more favourable conclusion should have been reached”.

77. [488]

    The issue of the likelihood of reoffending is closely related to an offender’s prospects of rehabilitation. It may be accepted, in the light of the sentencing judge’s remarks, that she rejected the notion that the applicant was unlikely to reoffend. Nevertheless, her Honour’s conclusions on rehabilitation and reoffending were reached after considering most or all of the matters which are now put forward to suggest that a different conclusion should have been reached. In that way, her Honour did not ignore matters that she ought to have considered. Her Honour’s conclusions were open on the evidence, and particularly for the reasons set out in her remarks at [151] to [154].

78. [489]

    No error is shown. We reject this ground.

79. [490]

    The applicant Attwater submitted that a number of factors suggested that the imposition of a 19 year aggregate sentence was a plainly unjust result. First, it was submitted that it was incumbent on the sentencing judge to take into account that nearly seven years had elapsed since the offending at the time of the sentence. Not only was there the uncertainty from the delay, Attwater had established a new relationship and had been subjected to extra-curial punishment.

80. [491]

    Secondly, it was submitted an appropriate sentence did not need to account for specific deterrence. This was Attwater’s first and only sexual offence as well as his first period of full-time imprisonment.

81. [492]

    Thirdly, it was submitted that the sentencing judge’s approach to notional accumulation was unreasonable. Although her Honour was conscious of the totality principle the accumulation of one year by reason of the sexual assault offence was unduly mechanistic. It was submitted that a sentence of 18 years, indicated for the manslaughter, adequately covered the total criminality in the offending generally. In that way, the decision to add an additional year to the 18 year sentence was unreasonable. In that way, the imposition of an aggregate sentence exceeded the legitimate bounds of discretion.

82. [493]

    The Crown submitted that the gravity of the manslaughter offence was high and noted that Attwater’s counsel had accepted that it was an “objectively very serious manslaughter”.

83. [494]

    The Crown submitted that there was little to mitigate the sentence to be imposed. There was no finding of remorse. The prospects of rehabilitation were assessed as guarded, and it could not be concluded that he was unlikely to reoffend.

84. [495]

    The Crown submitted that moderate weight had been given to the issue of delay. The Crown submitted that it was appropriate for the sentence imposed to account for specific deterrence given Attwater’s lack of insight into his offending at the time of sentence. The Crown submitted that questions of accumulation were discretionary and that there needed to be a modest degree of accumulation between counts 1 and 2.

85. [496]

    Her Honour imposed an aggregate sentence on Attwater of 19 years commencing 5 September 2017 and expiring 4 September 2036 with a non-parole period of 14 years and three months expiring 4 December 2031. The indicative sentences were 18 years for manslaughter, and 12 years with a non-parole period of nine years for the aggravated sexual assault.

86. [497]

    The overall effect of the sentence is that there was an accumulation of one year in respect of the aggravated sexual assault. Although complaint is made about this, it cannot be seen as unreasonable. Counsel for Attwater expressly accepted, in response to an enquiry from the sentencing judge, that a limited degree of accumulation was appropriate to take account of the aggravating factor that the sexual offence was committed in company. The sentence for the sexual offending was otherwise comprehended by the sentence for the manslaughter: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.

87. [498]

    The sentencing judge said at [113]:

88. [499]

    The issue of delay was dealt with at considerable length by the sentencing judge, and she ultimately concluded that delay was a factor to be reflected in the sentence to a moderate degree.

89. [500]

    Nor was it wrong for the sentencing judge to consider that specific deterrence was a relevant consideration. First, the applicant Attwater had committed other offences in Queensland after he moved there following the abuse he received after the deceased’s death became known. Secondly, her Honour discussed and considered those portions of Ms Hare’s report which pointed to a lack of insight by Attwater into his attitudes towards sexual relations with women. Thirdly, Ms Hare’s assessment using the Static-99R was that the applicant was within the average risk for being charged with a further sexual offence. That was said to mean that he was “typical of offenders in the middle of the risk distribution”, and that such offenders have criminogenic needs in several areas, and require “meaningful investments in structured programming to decrease their recidivism risk”.

90. [501]

    Her Honour further found that Attwater’s prospects of rehabilitation were guarded, and that he lacked remorse.

91. [502]

    The maximum penalty for manslaughter is 25 years’ imprisonment. The offence committed by Attwater was found to be in the upper range of seriousness. There was little else to mitigate the sentence apart from delay. While an indicative sentence of 18 years was a stern one, it cannot be said, in all the circumstances, to be outside the range of appropriate sentences, nor to be plainly unreasonable or unjust. An additional 12 months to take account of the circumstances of the sexual offending cannot be regarded as outside the range of appropriate accumulation. So much was accepted by senior counsel for Attwater at the hearing of the appeal.

92. [503]

    We reject this ground.

93. [504]

    The aggregate sentence imposed upon the applicant Maris was a sentence of nine years with a non-parole period of six years and nine months. The indicative sentences were eight years with a non-parole period of six years for the sexual assault, and four years for the hindering offence.

94. [505]

    The applicant Maris submitted that he stood to be sentenced on the factual basis that he had introduced his flaccid penis into Ms Daley’s mouth for a brief period. There was nothing to suggest that he had caused her any physical harm. Senior counsel drew attention to her Honour’s finding that Maris’ offending was less objectively serious than both Attwater’s sexual offending and other offending on a notional spectrum of offending against s 61J of the Crimes Act.

95. [506]

    Maris submitted that a consideration of the cases for offences against s 61J ordinarily involved actual threatened use of violence, with or without weapons, against the complainant. He submitted that cases where there was no actual threatened use of violence have been regarded as towards the lower end of objective gravity. Reliance was placed on R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 455; (2002) 129 A Crim R 242 and Perrin v R [2006] NSWCCA 64 to submit that the indicative sentence for the sexual assault was outside the range of available sentences.

96. [507]

    In relation to the offence of hindering, the applicant Maris submitted that the investigation found to have been hindered was not the wrongful death investigation because it was him who telephoned emergency services and stayed with Ms Daley’s body and made attempts over a long period to revive her.

97. [508]

    Maris submitted that the indicative sentence of four years was outside the range available, particularly having regard to other cases including R v Smith [2017] NSWSC 900 and Ibrahim v R [2005] NSWSC 1028.

98. [509]

    Although no separate ground in relation to delay was pleaded, the applicant Maris submitted that the issue of delay was a matter relevant to a consideration of whether the sentence was manifestly excessive. He also drew attention to various subjective matters, including prospects for rehabilitation, remorse, and his criminal record, submitting that it was not a bad record.

99. [510]

    The Crown submitted that the cases of R v Button; R v Griffen and Perrin, relied upon by Maris, were not appropriate comparable cases. Button & Griffen was a conviction appeal. In any event, no standard non-parole period applied to the offence. The matter of Perrin did not involve an offence of aggravated sexual intercourse without consent. In any event, the offender in Perrin had pleaded guilty to the offence of sexual intercourse without consent, he was 18 years old, had no prior convictions and was a person of prior good character.

100. [511]

     The Crown submitted that the cases put forward as comparable in relation to the hindering offence involved other factors that justified a lesser sentence.

101. [512]

     Her Honour imposed an aggregate sentence of nine years with a non-parole period of six years and nine months. The indicative sentences were eight years with a non-parole period of six years for the aggravated sexual assault, and four years for the hindering the police investigation.

102. [513]

     In relation to the objective seriousness of Maris’s offending, her Honour said:

103. [514]

     Senior counsel for the applicant correctly accepted that where an aggregate sentence is imposed, any appeal is against that sentence. Nevertheless, if it can be shown that the indicative sentences are themselves excessive, that may inform the question of whether the aggregate sentence is excessive, although the fact that indicative sentences are excessive will not necessarily mean that the aggregate sentence is excessive: Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191 at [114] (per Bathurst CJ, Hoeben CJ at CL and Price J agreeing).

104. [515]

     It should first be noted that the indicative sentence for the sexual assault charge is less even than the standard non-parole period for the offence. That is relevant because, as her Honour noted at [110] of her remarks, the standard non-parole period and the maximum penalty were both of significance in guiding the exercise of her discretion. Notwithstanding that Maris was convicted after a trial, the assessment by the sentencing judge of high moral culpability for the offence (justified at least by the concession made on behalf of Maris that the deceased was unconscious at the time he had sexual intercourse with her), the finding of lack of remorse, his guarded prospects of rehabilitation and his criminal record, including serious offences of domestic violence committed subsequent to the offences involving the deceased, her Honour indicated a sentence considerably below not only the maximum penalty but below the standard non-parole period. In fact, on the evidence before her Honour, the applicant Maris had few matters which operated in mitigation of any sentence. One matter was the delay in charging for which he received some benefit. The other was his background including his alcohol abuse and ADHD, both of which appear to have limited his education, job prospects, and, seemingly, shaped his attitude to women and his ability to form and maintain relationships.

105. [516]

     Her Honour was conscious of the danger of double counting in relation to the sexual assault offence. She said at [102]:

106. [517]

     The applicant Maris submitted that the sentencing judge did not refer to the report of Dr Dayalan, a psychiatrist who examined him on about October 2017, when dealing with prospects of rehabilitation. Dr Dayalan had said:

107. [518]

     Her Honour did make reference to Dr Dayalan’s report in relation to the issue of rehabilitation. Her Honour said at [167] of her remarks, when dealing with submissions of his counsel about that matter:

108. [519]

     Her Honour was not, of course, obliged to accept Dr Dayalan’s opinion. In that regard, it is significant that Dr Dayalan did not appear to have the information her Honour had concerning Maris’s offending since the deceased’s death. That he had offended further at all was significant for an assessment of his prospects of rehabilitation. However, when the offending involved what amounted to domestic violence against his then partner, her Honour was entitled to give little weight to Dr Dayalan’s opinion, especially as he cited the applicant’s “current relationship status” as a basis for his opinion on rehabilitation. That relationship was only of two to three months’ duration, and Dr Dayalan had already noted that Maris “had had a number of romantic relationships but they had usually been short-lived, lasting no more than 12 months”.

109. [520]

     The Crown’s submissions with regard to the cases put forward as comparable in relation to the sexual assault charge should be accepted. The case of R v Button; R v Griffen was a conviction appeal where no comment was made about the sentences imposed at first instance. The case of Perrin involved a count of sexual intercourse without consent not in circumstances of aggravation. The appellant was aged 18 years with no prior convictions.

110. [521]

     In all the circumstances, it cannot be said that her Honour’s indicative sentence for the sexual assault offence was outside the range of appropriate sentences.

111. [522]

     What her Honour said in relation to the hindering offence in her sentencing judgment at [112] has been set out above at [513]

112. [523]

     The applicant Maris submitted that her Honour should have found that there was no evidence that his conduct had impacted on the decisions of the DPP which resulted in delay in charging the applicants. There was, however, no evidence about that matter, and her Honour was correct in saying that she could not make a categorical finding about the matter. The statement is not against Maris’s interest.

113. [524]

     The applicant submitted further that the only conceivable motive for Maris burning the mattress and clothing was a misguided attempt to protect Attwater. It may be accepted that this is the most likely explanation for his actions, but it cannot be said that it reduces his moral culpability in any way, particularly because he was involved in the sexual assault of the deceased at the same time.

114. [525]

     It was suggested that R v Smith [2017] NSWSC 900 and Ibrahim v R [2005] NSWSC 128 were useful comparable cases.

115. [526]

     In Smith, the offender hid a knife and some other items used by his girlfriend when she told him that she had stabbed someone. Later the same day, he found out that the victim had died. He then told the police what he had done and showed them the hidden items. Button J held that it was a serious example of a serious offence. He sentenced the offender to a non-parole period of eight months with a balance of term of seven months.

116. [527]

     In contrast to the present offending, the offending in Smith was extremely short-lived. The offence was found to have been motivated by a “foolish desire” to protect a person he loved. The offender was found to be remorseful. The circumstances of such short-lived hindering might well be thought to be at the lower end of objective seriousness when it was brought to an end by the offender’s own confession. It was also necessary for the sentence to take into account, on the totality principle, other offences of cultivating a prohibited drug discovered at the time of the offender’s admission. In the present matter, the hindering was of a permanent nature which on any view must have restricted the investigation of the offences. The applicant Maris was not remorseful, and the hindering was partly motivated by self-interest.

117. [528]

     In Ibrahim, a person named Walid Ahmad killed another person. The offender gave advice to Ahmad as to what he should do to avoid the police finding him following the killing. The effect of the hindering was succinctly stated at [5]:

118. [529]

     Howie J held that the conduct of the offender fell at the very lower end of the scale of offending. The offender pleaded guilty. The offender was effectively sentenced to 20 months’ imprisonment with a non-parole period of 15 months but the sentence was wholly suspended. The Crown had consented to a suspended sentence. There was a parity issue with another offender, and the offender had health difficulties which made periodic detention unsuitable. These matters, together with the consideration that the sentencing judge in the present case found the applicant Maris’s offending reflected a high level of moral culpability, mean that Ibrahim is of very limited usefulness as a comparator.

119. [530]

     Although a sentence of four years may be thought to be a stern sentence, a number of matters suggest that such an indicative sentence does not demonstrate error in the aggregate sentence. First, her Honour found that there was a high level of moral culpability. Where the maximum sentence is seven years’ imprisonment, a sentence of four years on that basis alone was open to her Honour. That is the more so when there was no guilty plea, her Honour found no remorse, and any motivation must have partly been informed by self-interest. Secondly, the hindering in the present case resulted in important evidence being destroyed, so that the hindering was of a permanent kind. Thirdly, the notional accumulation produced by the aggregate sentence was one year only.

120. [531]

     Ultimately, the appeal is only in respect of the aggregate sentence. Having regard to the foregoing reasons, an aggregate sentence of nine years with a non-parole period of six years and nine months was not outside the range of appropriate sentences for the two offences.

Conclusion

1. [532]

   Although we would grant each applicant leave to appeal, it follows that the sentence appeals must be dismissed.

2. [533]

   We make the following orders:

   1. (1)

      An extension of time is granted to the applicant Maris to file his application for leave to appeal against conviction and sentence;

   2. (2)

      To the extent that leave is necessary, leave is granted to the applicants to appeal against conviction;

   3. (3)

      In each case, the appeal is dismissed;

   4. (4)

      Leave is granted to the applicants to appeal against sentence;

   5. (5)

      In each case, the appeal is dismissed.