Newson v R

WARD P: The appellant, Sayle Kenneth Newson, was convicted on 24 June 2021, following a trial by jury before Ierace J in the Supreme Court of New South Wales, for the offence of murder of his then girlfriend, Carly McBride. The Crown case was that the appellant murdered the deceased on 30 September 2014 at Muswellbrook, New South Wales and disposed of her body on the same day in bushland off Bunnan Road at Owens Gap, about 17 kilometres from the town of Scone. The deceased went missing on 30 September 2014. Her skeletal remains were discovered in August 2016.

On 17 December 2021, the appellant was sentenced by the trial judge to a term of imprisonment of 27 years, to date from 19 November 2018 and expiring on 18 November 2045, with a non-parole period of 19 years and 9 months expiring on 18 August 2038. The non-parole period is 73% of the total term. (The offence of murder carries a maximum penalty of life and a standard non-parole period of 20 years imprisonment in the circumstances of this case.)

The appellant, by notice of appeal filed on 11 May 2023, appeals (and where necessary seeks leave to appeal) against his conviction and also seeks leave to appeal against the sentence imposed upon him.

Before summarising the Crown case, it is convenient to set out the grounds of appeal raised in the appellant’s notice of appeal.

The appellant raises the following five grounds of appeal against his conviction:

The appellant requires leave to appeal in relation to each of grounds 1 to 5 as none of them involves a question of law alone; each involves either questions of fact, or mixed questions of law and fact (see s 5(1)(b) Criminal Appeal Act 1912 (NSW) (Criminal Appeal Act)).

The Crown relies on the proviso in s 6(1) of the Criminal Appeal Act with respect to grounds 1, 2 and 3, submitting that if (contrary to the Crown’s submissions) error is found in any of these grounds, no substantial miscarriage of justice occurred and the appeal should be dismissed.

The appellant raises the following proposed grounds of appeal against sentence if leave to appeal be granted:

As noted above, the Crown case was that the appellant murdered the deceased on the date (30 September 2014) that the deceased went missing in Muswellbrook. The Crown case was that the appellant physically assaulted the deceased then disposed of her body in bushland at Owens Gap, near Scone, in the company of his close friend (and co-accused) James Cunneen. Muswellbrook is in the upper Hunter region, located around a 25 minute drive from Scone township. Scone was the nearest town to where the deceased’s remains were located.

The deceased, a 31 year old indigenous woman at the time of her death, had been in a relationship with the appellant since early August 2014, the couple having met in 2013 when they both were at a drug and alcohol rehabilitation centre (the Dooralong Transformation Centre) on the Central Coast of New South Wales (30/03/21; T 36.41-37.3). Mr Cunneen had also been admitted to the Dooralong facility.

The deceased was admitted to Dooralong in October 2013 (30/03/21; T 35.50-36.1). The deceased had suffered from drug addiction and personal issues (involving her hope of reuniting with her two children, one from each of two previous relationships); and had both psychological and health issues, having been diagnosed with bipolar affective disorder (21/04/21; T 282.42-43; 283.46-47). The deceased withdrew from Dooralong in November 2013 and was then again voluntarily admitted to the centre in December 2013. The deceased again withdrew from Dooralong in January 2014. The deceased was admitted as an involuntary patient at Wyong Hospital in July (30/03/21; T 36.3-16) and was discharged from Wyong Hospital on 6 August 2014 (30/03/21; T 36.15-16). The appellant told police that he commenced a relationship with the deceased around 8 August 2014 (30/03/21; T 36.50-37.3; Ex WWW, 135).

As at 30 September 2014, the appellant resided at Buff Point, on the Central Coast, with his mother and a friend (Rankine Williamson) and Mr Cunneen lived at a house in Ted Clay Street in Muswellbrook with his parents (the Clay Street address) (30/03/21; T 36.31-36). The deceased had been living with a school-friend (Kylie Smith) in Belmont near Newcastle after her discharge from Wyong Hospital and for several days leading up to at least 26 September 2014 (30/03/21; T 36.16-21). The deceased also spent time at her father’s house in Warners Bay and with a friend (Christian Bower) in Newcastle (30/03/21; T 36.21-22; 38.25-28).

As adverted to above, the deceased had two children from previous relationships: a son with a man with whom she was in a relationship between about 2006 and 2008; and a daughter, born in August 2011, with Andrew Easton (known as Drew) (30/03/21; T 57.18-24; 21/04/21; T 282.19-20), who was a significant witness at the trial (30/03/21; T 35.30-40). As at 30 September 2014, the deceased’s son lived with his paternal grandmother in Newcastle; the deceased’s daughter lived with Mr Easton at Calgaroo Avenue in Muswellbrook (the Calgaroo Avenue address) (30/03/21; T 35.34-35; T 35.45-48).

On 29 August 2013, Family Court consent orders were made providing for the deceased to have custody of her daughter two days per week (30/03/21; T 35.42-44). However, there had been a request made by the Department of Community Services (DOCS) in 2013 that Mr Easton care for the daughter full time; and it was not in dispute at the trial that Mr Easton remained with full time care of their daughter (with the deceased having visitation rights) (28/04/21; T 637.14-19; T 637.48-638.5). On the Crown case, Mr Easton and the deceased had a harmonious relationship and there was no conflict arising from his care of their daughter (28/04/21; T 636-638; T 650-652). The appellant, however, sought in his defence case to raise an issue as to a potential application by the deceased in relation to the deceased’s daughter (as a motive for Mr Easton to harm the deceased) (see 3/05/21; T 749.44-47, further set out below at [158]-[160]).

There was no dispute at the trial that on 30 September 2014 the appellant drove the deceased from the Central Coast to Muswellbrook in his white Commodore and dropped her off at the Calgaroo Avenue address (Mr Easton’s address) at about 12.30pm (30/03/21; T 44.29-32; 45.15-16). Between 9 August 2014 and the date of her disappearance, the deceased had travelled to Muswellbrook to visit her daughter at the Calgaroo Avenue address on a number of occasions (approximately six such trips), typically on Saturdays (Ex ZZZ, 135). The appellant told police that he would typically visit Mr Cunneen while the deceased visited her daughter and Mr Easton, and that he (the appellant) would return to collect her after she contacted him to pick her up.

On the drive to Muswellbrook on 30 September 2014, the deceased spoke to her friend Ms Smith at 11.22am and to her father, Steven McBride, at 11.28am (27/04/21; T 561.31-35; 20/05/21; 1396.43-45). The appellant used the deceased’s phone to send a message to Mr Cunneen at 11.55am (30/03/21; T 45.6-8). That message is the last outgoing communication recorded in the deceased’s phone records (30/03/21; T 45.9).

The deceased and the appellant made a number of stops on the drive to Muswellbrook, including at a Coles Express service station at Singleton where the appellant used the deceased’s debit card to purchase a “V” brand drink and cigarettes at 11.37am (6/05/21; T 993.29-994.2). The appellant told police that the deceased smoked ice (or methylamphetamine) about ten minutes before going into Mr Easton’s home. The appellant told a friend of the deceased’s father that the deceased used ice as well as “bupe” (or buprenorphine), which he gave her because she did not like having ice on its own (6/05/21; T 1025.15-24). There was evidence that the deceased changed her clothes, from a dress to jeans and a yellow top, before she was dropped off at the Calgaroo Avenue address (Ex ZZZ, 74).

The Crown case was that the appellant dropped the deceased at the Calgaroo Avenue address at around 12.30pm and that the appellant then travelled to the Clay Street address (Mr Cunneen’s house) via the McDonald’s drive-through in Muswellbrook where the appellant again used the deceased’s debit card at 12.54pm (30/03/21; T 45.15-16; T 45.34-41; 4/05/21; T 868.50-869.4). Mr Cunneen’s house was at most a five minute drive from the Muswellbrook McDonald’s (30/03/21; T 45.40-41).

The evidence was that the deceased’s daughter was in daycare on the day of the deceased’s visit to Mr Easton’s house (30/03/21; T 44.28-29). The Crown case was that the deceased left the Calgaroo Avenue address at around 1.45pm-2pm (30/03/21; T 45.46-47; 29/04/21; T 690.13-15). Mr Easton gave evidence that, at around that time, the deceased said words to the effect “I’m just going to…head off, go…to McDonald’s and get Sayle [the appellant] to pick me up from there” before leaving his house on foot (3/05/21; T 735.35-38). The deceased was not seen again after that time.

It was not disputed that the appellant was present at Mr Cunneen’s house (the Clay Street address) at 2.02pm on 30 September 2014. A short video was recorded on his mobile phone (that was later seized by police) showing the appellant inside the garage area (30/03/21; T 46.30-34). The Crown alleged that, shortly after 2.02pm, the appellant left Mr Cunneen’s house in his own car, intercepted the deceased and murdered her in Muswellbrook (30/03/21; T 46.36-39). The Crown case was that the appellant likely became aware upon intercepting the deceased that her daughter had been in daycare during the visit with Mr Easton, meaning that Mr Easton and the deceased had been alone together at Mr Easton’s house for over an hour (30/03/21; T 45.23-27). The Crown relied on evidence as to the appellant’s jealousy of the deceased, and her relationships with Mr Easton and other men (see, for example, 6/05/21; T 1009.10).

There was evidence that Douglas Palmer, a friend of Mr Cunneen, visited the Clay Street address shortly after, about 2.13pm on 30 September 2014 (having sent a message at approximately 2.13pm that day), staying for about ten minutes at the Clay Street address. Mr Palmer did not see the appellant or the appellant’s Commodore motor vehicle when he visited Mr Cunneen (27/04/21; T 569.24-44; T 571.11-26). Mr Palmer said, in a police statement read onto the record (in refreshing his memory), that the only person he saw was “Jimmy … there was definitely no-one else there … I don’t remember seeing any other cars there, not even Dallas [Mr Cunneen’s father]” (27/04/21; T 571.11-26). Mr Palmer said he stayed for “a short time like around 10 minutes” and that he and Mr Cunneen “stood in the garage area that was open at the top of the driveway”.

Therefore, the period of time when (on the Crown case) the appellant was absent from Mr Cunneen’s house was between around 2.02pm (assuming he left shortly after the video recorded on his mobile phone) or at the latest before 2.30pm (when Mr Palmer arrived) and 2.40pm (when Mr Palmer left after his short visit) – a window of opportunity of somewhere between 10 minutes and 38 minutes, coinciding with the time at which Mr Easton said the deceased had left his house to go to McDonald’s (which was around 1.45pm-2pm). There was no evidence that the deceased reached Muswellbrook McDonald’s that afternoon.

There was also no dispute that on the afternoon of 30 September 2014 the appellant and Mr Cunneen had travelled together from Mr Cunneen’s house (the Clay Street address) to Scone, attending the McDonald’s in Scone at approximately 4.40pm (30/03/21; T 46.24-25; 47.40-41).

The deceased’s skeletal remains were located by Ms Teresa Byrne, a Natural History Illustration student at the University of Newcastle on 7 August 2016 off the Bunnan Road at Owens Gap (19/04/21; T 102.5-41). The deceased’s remains were found above ground, approximately 26 metres off Bunnan Road near a clearing in a relatively confined area (19/04/21; T141.30-32). The location was one where a car was able to pull off the road coming down the hill from Merriwa and where there was visibility of some hundreds of metres (2/06/21; T 1774.48-50). The Crown case was that it was a chosen spot consistent with someone knowing the area. The Crown submitted to the jury that the location was consistent with a surreptitious and quick disposal (2/06/21; T 1774.46-48).

There was a later telephone intercept of the appellant in which he disclosed that he had hunted in the area in which the remains were found (Ex RRR).

When discovered, the remains were almost complete but with some missing bones, including (relevantly, as will be explained shortly) the hand bones. There was expert evidence from Dr McCardle that this was likely the result of scavenging by animals (19/04/21; T 165). The remains were in the same clothes the deceased had been wearing when she left Mr Easton’s house (3/06/21; T 1827.49). There were no signs of sexual assault. (There was also no sign of any attempt to bury the body.)

There was no dispute that the cause of the deceased’s death was blunt force trauma to the head. A post mortem examination disclosed multiple skull and facial fractures. There were fractures to the right and left side of the jaw, left side facial fracture and, at the right side at the back of the head at the base of the skull a fracture. There were three rib fractures at the back where the ribs join the spine. Both shoulder blades at the back were fractured on a plane and there were multiple spinous process fractures (20/04/21; T 198-202; T 218-220).

The Crown called expert evidence from a forensic anthropologist and forensic archeologist (Dr Penny McCardle) and from a forensic pathologist (Dr Leah Clifton) on the cause of death.

Dr McCardle had examined the deceased’s remains and identified 23 fractures to the skull and face, and 13 fractures to the body (20/04/21; T 228.49-50). Her evidence was that all of the fractures were perimortem and all were caused by blunt force trauma; and that the fractures to the skull were caused by three or more blunt force traumas to the head and face area (20/04/21; T 197.36-43; T 212-214; T 213.7-9; T 215.26-28). Dr McCardle opined that there was a point of impact around the left cheek and nose area, a further point of impact around the right side of the jaw and an impact to the parietal and occipital areas of the skull. Dr McCardle’s opinion was that the traumas to the nose and left cheek must have involved significant force because of fracturing travelling from that location to the skull (20/04/21; T 208.48-209.2).

In relation to the deceased’s body, there were fractures to multiple ribs, various spinal fractures and fractures to each scapula (shoulder blade) which Dr McCardle said was a difficult bone to break (20/04/21; T 219.44-220.1). Dr McCardle considered that all of these injuries could have been caused by one or more points of impact across the back (20/04/21; T 223.9-18; T 227.4-6). Dr McCardle opined that the injuries were not consistent with vehicular trauma, which would have given rise to more fractures (20/04/21; T 231.13-31; 236-239).

Dr Leah Clifton, a forensic pathologist, conducted the deceased’s autopsy. Dr Clifton’s opinion was that the cause of death was blunt force head injury and that impacts to the deceased’s head would have caused haemorrhaging to the brain (20/04/21; T 245.26-30; T 247.7-12). Dr Clifton opined that “high velocity” and “severe force” was required to inflict the injuries that she observed (20/04/21; T 254.33-37). Dr Clifton noted that there was significant fracturing to the base of the skull consistent with blunt force trauma. Dr Clifton said that “usually when someone has a base of skull fracture it’s the pattern of fracture that we see in … high force blunt injuries” such as motor vehicle trauma (20/04/21; T 244.7-14). Dr Clifton’s opinion was that the overall pattern of fractures was consistent with an assault; in particular, the fractures to the cheek area were “frequently seen” in someone being punched by a right-handed person and the fractures to the jaw were also “frequently seen in punch scenarios” (20/04/21; T 247.22-27).

Dr Clifton was “certain” that the injuries were the result of “at least two” impacts to the head (to the back right side and left side) but said that this did not necessarily equate to two punches (20/04/21; T 248.1-3). Dr Clifton’s evidence was that it was clear that there was an impact to the front left of the face and an impact to the right back of the head, as well as a base of skull fracture which may or may not have been caused by either of those impacts (20/04/21; T 248.43-48).

Dr Clifton’s opinion was that the injuries to the deceased’s body were separately inflicted to the injuries to the head. Dr Clifton said that the high force trauma injuries to the body could have been caused by kicking or punching but there would need to be direct trauma to the scapula on both sides for the fractures to have occurred (20/04/21; T 248.23-39). While Dr Clifton could not say whether there would have been a blow to each scapula or a single blow to the whole back area, she considered that there needed to have been significant force for the fracturing to occur (20/04/21; T 248.33-36). Dr Clifton gave evidence that in motor vehicle trauma injuries she would ordinarily expect leg and pelvic fractures, which were not present here (20/04/21; T 244.27-245.30).

The Crown relied on evidence that the appellant had training and experience in martial arts (Muay Thai, a form of Thai kickboxing) and could use his body as a weapon (30/03/21; T 36.24-29). In one of his police interviews, the appellant acknowledged having had a number of fights (Ex ZZZ, 14). The Crown case was that the injuries revealed during the post mortem were capable of being accounted for by physical assault involving kicking, punching and/or the use of an object or objects. The Crown submitted in closing that the assault may have involved the use of an object and/or kicks and punches, but the precise mechanism was not known (2/06/21; T 1776).

In relation to his movements on the afternoon of 30 September 2014, the appellant told police that he was with Mr Cunneen “the whole time” and that they took “back roads” to Scone (Ex WWW, 26, 29). The appellant admitted using the deceased’s bank card at McDonald’s in Scone at 4.40pm (Ex WWW, 27). The Crown relied on the travel to Scone as establishing the opportunity for the appellant to dispose of the deceased’s body (2/06/21; T 1768.15-19).

The appellant used a Samsung mobile phone on 30 September 2014. His call charge records showed no activity between 12.57pm and 6.54pm (28/05/21; T 1641.20-24). The appellant told police that he had no credit on his phone (Ex ZZZ, 86). Call charge records showed that the appellant sent messages at 6.54pm and 6.55pm (28/05/21; T 1641.38-1642.3). In 2014 there was no mobile phone reception possible in Owens Gap (6/05/21; T 990.10).

The deceased’s mobile phone and handbag were never recovered (28/05/21; T 1623.7-13). Telecommunications records established that the deceased’s mobile phone continued to connect to a cell tower in Muswellbrook (without any call connecting) until approximately 7.30am on 1 October 2014 (28/05/21; T 1639.5-31). The Crown relied on this as evidence that the murder took place in Muswellbrook.

As noted above, the last outgoing communication from the deceased’s phone was at 11.55am on 30 September 2014. After that time, the deceased did not respond to any attempts to contact her, including a message from her mother at 1.32pm that day and calls from friends and family after 6.58pm (21/04/21; T 298.11-16). There was no evidence that the deceased attempted to access any bank accounts and no viable sightings after she left the Calgaroo Avenue address (4/05/21; T 865-877; 3/06/21; T 1827.49-50). The deceased’s remains were located with the same clothes she was wearing on the day she went missing (denim jeans, a yellow top and sandals) (3/06/21; T 1827.49). The Crown case was that the evidence established beyond reasonable doubt that the deceased was murdered on 30 September 2014.

The Crown case was that the appellant’s motive to commit the offence was his jealousy and possessiveness towards the deceased, a state of mind that led him to act in an aggressive and controlling way (2/06/21; T 1769.25-30). The evidence relied upon by the Crown as supporting a motive of jealousy included the following.

First, SMS messages exchanged between the deceased and the appellant in August 2014 (recorded in Ex HHHH), including a message sent by the appellant on 30 August 2014 at 11.42pm, reading:

Second, evidence of tension in the relationship between the deceased and the appellant in the days leading up to her disappearance. On 26 September 2014 the deceased told her father’s neighbour, Ms Shayne Drinkwater, that she and the appellant were fighting, that she had not seen him for three days and that she did not know where he was (26/04/21; T 421.1-4). The deceased’s father also gave evidence that the deceased was continually trying to find out where the appellant was but was unable to contact him (26/04/21; T 1380.48-49).

Third, evidence that on the night of 26 September 2014 the deceased spent the evening at a male friend’s home (Christian Bower) (26/04/21; T 434.1-6). The appellant admitted, in an intercepted telephone conversation with Ms Smith, that he knew this and that while the deceased was with Mr Bower he had called her and “fuckin’ told Carly on the phone…” to “put it on loudspeaker” and said he was “gonna kick…his fuckin’ head in, babe” (Ex S, 9).

Fourth, evidence that, on the evening of 27 September 2014 the deceased had contact with another man, Troy Moffitt, and the deceased told her father that “Troy” was coming to pick her up (20/05/21; T 1389.1-14). The deceased then received contact from the appellant, who collected her from her father’s house (20/05/21; T 1389.31-33; T 1390.27-32).

Fifth, that on 29 September 2014 the deceased’s Facebook account was deactivated. Evidence showed that searches had been made on the appellant’s laptop at 12.11am and 12.13am about “how to delete Facebook and account” (18/05/21; T 1264.31-39). The appellant later told an acquaintance, Sandra Small, that “they shut” the deceased’s Facebook the night before she disappeared because she was receiving “messages and nude pictures and stuff like that” and it was “causing arguments between them and jealousy issues” (6/05/21; T 1009.5-19). Rankine Williamson gave evidence that the appellant had “got the shits with [the deceased]” when she would not delete her account (5/05/21; T 908.25-31).

In his first interview with police after the deceased’s disappearance, the appellant described being angry at the deceased (Ex WWW, 60):

Sixth, tendency evidence from Ms Shannon MacAlpine (the appellant’s partner at the time of his arrest) to the effect that he was jealous of her contact with other men, particularly on phones and Facebook. (The admission of this tendency evidence is the subject of Ground 1 of the conviction appeal.) Ms MacAlpine gave evidence that the appellant looked through her mobile phone to see who she was in contact with; broke approximately 30 or more phones; and smashed up her room in her house a couple of times (13/05/21; T 1100-1105). The Crown submitted that there was a striking similarity between what Ms MacAlpine said she experienced and the relationship between the appellant and the deceased (3/06/21; T 1820). The evidence was that it was while using the drug Ice that the appellant smashed Ms McAlpine’s phone (13/05/21; 1103.10-13).

Seventh, evidence that, despite the purpose of the deceased’s visit to the Calgaroo Avenue address being to see her daughter, the daughter was in daycare that day and not present (Ex CC). Mr Easton gave evidence that he had told the deceased the day before the visit that this would be the case (29/04/21; T 682.32-683.21). The Crown case was that the appellant noticed the daughter’s absence when dropping the deceased off (which the Crown says is consistent with statements he made to a number of people), provoking his jealousy (3/06/21; T 1803).

At approximately 6.30pm on 30 September 2014, the appellant attended Mr Easton’s house (ostensibly to collect the deceased) and Mr Easton informed the appellant that she was not there, and that she had left at 2pm saying she was going to McDonald’s “to ring you [i.e., the appellant]” (Ex WWW, 33) (29/04/21, T 694.29-30). In his interview with the police, the appellant at first stated that Mr Easton told him that “[s]he’s turned into the street and she’s going to Maccas to ring you” before correcting this to say that Mr Easton told him that she was going “to ring someone” (not “to ring you”). The Crown argues that the appellant was here correcting what he realised was a slip when saying Mr Easton told him that the deceased was going to ring him (the appellant).

At 9.26pm on 30 September 2014, the appellant reported the deceased missing at Muswellbrook Police Station (28/04/21; T 601.36-602.14), having earlier made various enquiries as to the deceased’s whereabouts (including an enquiry at the local hotel at around 5.50pm even before the appellant had gone to Mr Easton’s house purportedly to collect the deceased) (see [244] below). Further, there was evidence that the appellant had earlier that afternoon (at around 5.17pm) downloaded and cropped a photograph of the deceased that he subsequently used on missing person posts (see [260]).

The appellant took steps over the following days to search for the deceased including by door-knocking, organising a Facebook “missing person” page and distributing missing persons posters (4/05/21; T 829.1-9). The Crown submitted that this was a public display of concern designed to deflect suspicion from himself in circumstances where he knew that Ms McBride was deceased (3/06/21; T 1829.34-43). The Crown case was that the way the appellant presented himself publicly at the time was inconsistent with how he was behaving privately.

In particular, there was evidence that, in the hours and days following the deceased’s disappearance, the appellant had contacted a number of other women, as follows.

The appellant contacted Samantha Patterson on Facebook at 2.37am on 1 October 2014 and, at 5.37am, requested sex from her (Ex JJ). They met on 2 October 2014 and had sex (5/05/21; T 968.7-9). Ms Patterson described the appellant as not being upset and very keen to have sex with her (5/05/21; T 968.44-48). They used drugs (5/05/21; T 969.4-8). Ms Patterson said that the appellant told her the deceased was “gone” (5/05/21; T 968.23-25).

The appellant exchanged sexual images with Tanya Chilcott, on 1 October 2014, including while door-knocking homes in Muswellbrook (Ex OO). The appellant went to stay with Ms Chilcott from about 5 October 2014 to 15 October 2014 (6/05/21; T 1030.35-37).

On 3 October 2014, the appellant sent a message on Facebook to Latoya Kelly saying “Latoya we have never met but I think we no some of the same peps and yea…well I think your hot and if your single you should let me take you out” [rendered as in original] (Ex JJJJ, 3).

On 6 October 2014, the appellant sent a message on Facebook to Isabelle Greer saying “hi iz ….. you should let your sister know im single again” (Ex JJJJ, 3).

Meanwhile, on 1 October 2014, the appellant visited the police station and spoke to Senior Constable Tegan Denniss (MFI 32). The appellant told the officer they were looking for a dead body (4/05/21; T 819.30-33). On the same day, according to Mr Easton, the appellant told him that the deceased was “probably dead in a ditch somewhere” (29/04/21; T 701.40).

The appellant was first interviewed by police on 3 October 2014 (Ex WWW). (A second interview, in which the appellant again participated voluntarily, was conducted on 31 October 2014 (Ex WWW, 25-29).)

At the time of the deceased’s disappearance the appellant was a user of the drug methylamphetamine (Ice). In his electronically recorded interview dated 31 October 2014 the appellant acknowledged he had been up for a couple of days before the deceased’s disappearance because he was high on ice (Ex ZZZ, 2-3).

The mobile telephone the appellant was using at the time of the deceased’s disappearance was located by police and subject to a Cellebrite download, which was completed on 29 October 2015 (20/05/21; 1346.17-26). The download revealed that there were location history entries for before 18 September 2014 and after 2 October 2014, but nothing in between (20/05/21; T 1361.16-41). The Crown relied upon the removal of the data as a deliberate act evidencing consciousness of guilt. There was a telephone intercept from 30 November 2014 (some eight weeks after the deceased’s disappearance) where the appellant spoke to a person known to him about trying to hide his internet history from police (Ex VVV). This evidence was relied upon by the Crown for consciousness of guilt reasoning.

Detectives were involved in the investigation from at least 2 October 2014. The Crown notes that forensic investigations did not focus solely on the appellant. Mr Easton’s residential address (the Calgaroo Avenue address) was the subject of forensic examination and his vehicle was also subjected to a forensic examination (3/05/21; T 802.16-20; 13/05/21; T 1138.43-1141.32). No inculpatory material was found. (The appellant emphasises that there was no forensic link to anybody disclosed in the Crown case (see at [29] of his written submissions dated 30 May 2023).) The police task force also worked through potential suspects including a number of named individuals before excluding them. Investigations also dealt with a number of “false” sightings of the deceased after 30 September 2014 (5/05/21; T 949-960).

On 20 November 2014, there was a telephone intercept of a conversation between the appellant and the deceased’s father, Steven McBride, in which conversation they discussed the police investigation and the appellant said that the last three people to see the deceased were himself, Mr Easton and Mr Cunneen (Ex RRR). The appellant said “There’s the last…reality is there’s the last three people who seen her: that’s me…Drew, and fuckin’ (pause) – well me and Drew, yeah? Me, Drew…and Jimmy okay? … Now I’m pretty sure they’ve cancelled me and Jimmy out” (Ex RRR). The Crown’s submission was that, when the appellant told Mr McBride the last three people who saw the deceased alive, the appellant made a slip because that is what had happened; whereas in his interview the appellant said that, after dropping the deceased off at Mr Easton’s house to visit her daughter, he went to Mr Cunneen’s place and stayed there (2/06/21; T 1801.10-25) (i.e., on the appellant’s account to police, Mr Cunneen did not see the deceased that day).

As noted, on 7 August 2016, the deceased’s skeletal remains were discovered. The police investigation used a strategy of a public appeal for information whereby a “fake” crime scene was filmed following the remains of the deceased being located (20/04/21; T 262.48-49). Before the public appeal, a telephone intercept warrant was obtained for the appellant’s mobile phone.

On 11 August 2016, the appellant had a conversation with a female acquaintance regarding the “fake” crime scene film and the police receiving a tip off. In that conversation, the appellant made reference to Mr Cunneen (Ex VVV), in connection with the tip off (i.e., suggesting some knowledge on the part of Mr Cunneen about the relevant events). The Crown linked this call back to the earlier telephone intercept in which the appellant referred to the last three people to see the deceased alive.

During a telephone call by the appellant to Mr McBride on 26 August 2016, after the discovery of the deceased’s remains, the appellant told Mr McBride that he had heard someone had the deceased’s hand and asked Mr McBride whether that meant anything to him (25/05/21; T 1488.9-25). As noted above, when the deceased was located some extremities bones were missing (attributed by the expert evidence to animal interference). However, there had been no public acknowledgment by investigators that any bones were missing (21/04/21; T 272.28-30). The Crown submitted that the appellant must have returned to the scene where he had deposited the deceased body and seen the missing hand/bones (7/06/21; T 73).

There was also evidence obtained through a listening device worn by Mr McBride when speaking to the appellant on 8 June 2017. During the recorded conversation, the appellant told Mr McBride that he knew the area where the deceased was found “like the back of his hand” and he did not like to say it because “it sounds incriminating” (Ex RRR).

The Crown did not suggest that Mr Cunneen was present at the time of the murder (Crown Written Submissions on Conviction Appeal filed 30 November 2023, p 12). Rather, the Crown case was that the appellant, having killed the deceased, turned to Mr Cunneen (his close friend and the only person he knew in Muswellbrook) for assistance; and that they then together disposed of the body that afternoon.

Pausing here, there was an aborted first trial in which the appellant and Mr Cunneen were co-accused (the appellant charged with murder and Mr Cunneen as accessory after the fact). Ierace J was the trial judge at that trial, which commenced before a jury in Newcastle on 23 May 2019. His Honour, on the thirty-first day of that joint trial, acceded to applications by both accused to discharge the jury R v Newson; R v Cunneen (No 1) [2019] NSWSC 875, following an incident in which inadmissible evidence said to be highly prejudicial and irrelevant was given in cross-examination of a second tendency witness (one who did not give evidence in the second trial involving the appellant). The jury was discharged on 12 July 2019.

Prior to that first trial being commenced, his Honour had dismissed an application on behalf of Mr Cunneen for a separate trial. After the aborted first trial, a new trial date of 4 May 2020 was set for the fresh trial. On 25 October 2019, counsel for Mr Cunneen indicated that he wished to bring a fresh application for a separate trial based on material additional to that which was relied on for the first application. That application was heard by Ierace J on 8 April 2020. His Honour acceded to the application that there be separate trials (see R v Newson; R v Cunneen (No 2) [2020] NSWSC 463).

Accordingly, Mr Cunneen was ultimately tried separately in the District Court for the offence of accessory after the fact to murder. Mr Cunneen was convicted of that offence. His conviction appeal was heard in October 2023.

Returning then to the trial leading to the conviction the subject of the present appeal, at the second trial the appellant (again) pleaded not guilty to the sole count of murder and, as was his right, did not give evidence at the trial. As noted above, the appellant had given two voluntary interviews to police, the first on 3 October 2014 and the second on 31 October 2014, which were tendered in evidence in the Crown case. The appellant in those interviews denied any involvement in the deceased’s disappearance. The appellant said that he had been with Mr Cunneen all afternoon (on 30 September 2014 and had not left his company; and that they travelled together to Scone via backroads, where they went to “the farm” and a McDonald’s restaurant (Ex WWW, 25-29)).

The appellant served an alibi notice prior to the trial in which he said he attended Mr Easton’s address, then McDonald’s at Muswellbrook, Mr Cunneen’s address, Mr Cunneen’s father’s farm at Gundy Road, some storage sheds at Hayes Street in Scone, and McDonald’s in Scone (all in the company of Mr Cunneen) before returning to Mr Cunneen’s address (and eventually returning to Mr Easton’s address to look for the deceased) (28/05/21; T 1614.22-32). The Crown was permitted to adduce evidence that the appellant had given that version via his solicitors (without referring to it as an “alibi”).

Professor Duflou, forensic pathologist, gave evidence in the defence case relating to the deceased’s injuries, including that they would possibly have involved significant blood at the scene (31/05/21; T 1755.25-1756.9). The appellant relied on the lack of any forensic evidence implicating him despite an extensive examination of his vehicle, and the absence of any witnesses to what must have been a serious attack in daylight in the middle of the town (3/06/21; T 1837.24-40; T 1839.13-48).

The appellant’s counsel cross-examined Dr McCardle and Dr Clifton on the possibility that the deceased had been hit by a motor vehicle (though that theory was not pursued in closing submissions). In closing, the appellant’s counsel referred, among other things, to the following matters: the evidence of Mr Bower that the deceased had been worried about travelling to Muswellbrook the day before her disappearance but had said “don’t worry, I’ll be with Sayle”, implying she felt safe with him and that there may have been something else connected with Muswellbrook that was of concern to her (3/06/21; T 1835.25-41); the evidence that the deceased appeared happy in photographs taken during her car trip with the appellant to Muswellbrook on 30 September 2014, and evidence from Ms Smith that she sounded happy during their phone call around that time (3/06/21; T 1835.44-1836.5); the narrow window of opportunity for the murder to have occurred and the lack of witnesses to what must have been a serious attack in Muswellbrook (3/06/21; T 1837.24-1838.22; T 1840.15-1841.1); and the absence of evidence (apart from that of Mr Easton) that the deceased had left Mr Easton’s address (3/06/21; T 1840.44-45; T 1853.16-17).

The appellant’s counsel suggested that the deceased may have been robbed in the course of a drug deal (3/06/21; T 1849.26-27); or that Mr Easton was involved, pointing to the evidence that the deceased was attempting to regain custody of their daughter, evidence from one of Mr Easton’s neighbours (Ms Gardner) that she had witnessed a man arguing with a woman at some point before 30 September 2014, alleged inadequacies in the forensic testing of Mr Easton’s vehicle, and evidence that Mr Easton had travelled to Scone early on the morning of 1 October 2014 after dropping his daughter to daycare unusually early in the morning (3/06/21; T 1849.50-1853.17).

The Crown issued a tendency notice on 6 March 2020, seeking to prove that the appellant had a tendency to have a particular state of mind and a tendency to act in a particular manner. The tendency was identified as:

The Crown contended that the accused had demonstrated a tendency in his intimate relationships, both before and after his relationship with the deceased, to be overwhelmed by jealousy and possessiveness to the point of acting violently, although not inflicting actual physical violence on the partner’s body. The qualification embedded in the last phrase of that submission is not reflected in the tendency notice itself (as extracted above).

Tendency was the subject of pre-trial argument on 8 April 2020. The defence position in oral submissions, supported by earlier written submissions, was that the proposed evidence did not pass the test of s 97(1)(b), or (2)(b) of the Evidence Act 1995 (NSW) (Evidence Act) and, if that submission was wrong, that the evidence, taken as a whole, did not meet the test in s 101 of the Evidence Act, being that the probative value of the evidence substantially outweighed the prejudicial effect (8/04/20; T 9, 19).

In a pre-trial ruling, the trial judge ruled that Ms MacAlpine’s evidence (referred to as “Witness A” in the judgment) was admissible as tendency evidence and that evidence of an answer given by the appellant in the second police interview on 31 October 2014 (in which he admitted jealousy in a past relationship) was not (R v Newson (No 1) [2021] NSWSC 442) (the tendency judgment).

His Honour summarised the effect of Ms MacAlpine’s evidence at [23]-[24] of the tendency judgment as follows:

The trial commenced on 29 March 2021 in the Supreme Court at Newcastle. The trial transcript extended to in excess of 1600 pages. The Crown, in his short opening to the jury panel on 29 March 2021 stated that the deceased was murdered about 2pm on 30 September 2014 in the Muswellbrook area and her body dumped the same afternoon at a location known as Owens Gap, which is about 17 kilometres outside the township of Scone (29/03/21; T 7-8). The Crown case was that the appellant was the person who inflicted the significant blunt force trauma to the facial region and to the back of the deceased’s head causing her death. The jury was advised that the Crown case was circumstantial and there was no “smoking gun” (29/03/21; T 34.15-41).

On 6 April 2021 (day 5 of the trial) the trial judge placed on the record that on 5 April 2021 the Court was advised that defence counsel had suffered a heart attack, requiring multiple bypass surgery thus ending his involvement in the matter. The appellant’s solicitor advised the Court he had been able “provisionally” to secure new counsel (that the new counsel would accept the new brief but he had some other commitments) (6/04/21; T 81.19-47). By that stage of the trial there had been a view of where the deceased had been located and some evidence had been adduced.

The appellant’s instructing solicitor advised the trial judge that alternative counsel was in the process of being briefed with the 27,000 pages containing the brief of evidence and the previous trial transcript (i.e., of the aborted first trial), which extended to 1,597 pages (see 28/04/21; T 598.30-37). There was no application to discharge the jury by the appellant’s representatives. The Crown closing submissions to the jury referred to some 36,000 odd pages of brief.

On 9 April 2021, the Court was updated as to defence counsel, with the trial being adjourned to 19 April 2021 for the trial to continue (9/04/21; T 89.25-40). On Monday 19 April 2021, the trial of the appellant continued with alternative counsel (19/04/21; T 94).

Ms MacAlpine gave evidence in the trial (commencing at T 1098) consistent with the summary given in the tendency judgment of the evidence it was then expected that she would give. Ms MacAlpine said that there were instances of jealousy “once a week maybe … [or] less”, that there were two occasions when the appellant smashed up her room, on one occasion smashing her laptop and tearing photos off the walls (13/05/21; T 1100.49; T 1103.28-37). Ms MacAlpine confirmed in her evidence that the appellant had never touched (not “laid one hand on”) her, notwithstanding that she had “pushed him…gotten up in his face…head-butted him” and antagonised him (13/05/21; T 1110.24-35).

In directing the jury at the end of the trial, the trial judge said that the Crown alleged that the conduct revealed that the accused had a tendency to be jealous and possessive of intimate partners “to a point of acting violently towards inanimate objects”, which [the Crown alleged] makes it more likely that he committed the offence charged in the indictment” (7/06/21; SU 49). His Honour said:

The circumstantial case direction included (relevant, in particular, to Ground 2) a direction that:

Relevant to ground 4 is the following course of events.

His Honour placed on the record (in the absence of the jury) the contents of an email sent to his chambers by defence counsel in which defence counsel sought a direction for an alternative verdict of manslaughter (27/05/21; T 1592.14-15). His Honour said:

Defence counsel was invited to consider the issue and said:

The Crown Prosecutor made no submission.

Later the trial judge returned to the issue of the potential alternative verdict of manslaughter; and defence counsel, in response to a question by the trial judge as to how manslaughter arose, said:

When asked on what basis manslaughter would be available, defence counsel submitted:

Defence counsel also referred to a lack of intent during the dialogue with the trial judge (27/05/21; T 1601.42-43). His Honour stated that “the nature of the injuries bespeaks an intent. But I’m happy to hear what you have to say about that” (27/05/21; T 1602.50-1603.1). The appellant says that there can be significant injuries inflicted without the requisite intent to inflict serious bodily injury.

The Crown Prosecutor suggested to his Honour a direction on “voluntary intoxication” because that may have some relevance to an intent to murder, from which his Honour did not derogate and an intoxication direction was given in the summing up (27/05/21; T 1606.25-28; 7/06/21; SU 27).

Some days later, the issue of manslaughter again arose where defence counsel returned to his earlier list of proposed directions to the jury. Defence counsel articulated that there was no ground to seek an alternate for manslaughter so he abandoned his application. His Honour responded:

The appellant, by Ground 1, contends that the trial judge erred in admitting tendency evidence (namely, the evidence of Ms MacAlpine) on the basis that it either did not have significant probative value so as to meet the test in s 97 of the Evidence Act or its probative value did not substantially outweigh any prejudicial effect it may have to the appellant, such that her evidence ought to have been excluded under s 101 of the Evidence Act.

As s 101 of the Evidence Act was framed at the time of the trial (as opposed to the position at the time of the appeal), the relevant test is whether the probative value of the evidence substantially outweighs any prejudicial effect it may have on the accused (tendency judgment at [19]). The Crown correctly accepts that the test for admissibility applicable at the time of trial here applies (Crown written submissions dated 30 November 2023 at [53]).

The appellant refers to the relevant legal principles in relation to the admission of tendency evidence as set out in Greenaway v R [2021] NSWCCA 253 at [26]-[32] (Macfarlan JA, Wilson J agreeing at [135]) and Geraghty v R [2023] NSWCCA 47 (Geraghty v R) at [23]-[29] (Basten AJA, Button and Chen JJ). In the circumstances of this case, the appellant says that the course of the trial did not evolve in any material way such that this Court is in a manifestly different position to the trial judge.

The appellant submits in essence that evidence establishing that he was overwhelmed by jealousy and possessiveness to the point of acting violently to inanimate objects, although not inflicting actual physical violence on the partner’s body, does not rationally assist in a significant way to establish that he engaged in a violent physical assault causing blunt force trauma injuries with the specific intent to cause serious injury or death. The appellant argues that establishing a tendency to smash phones does not make it more likely that he committed murder (which he submits is the force of the direction surrounding tendency evidence given to the jury).

The appellant submits that the prejudice of the purported tendency evidence is clear, namely that it portrays him as “a repeat domestic violence offender who perceives he has some proprietary rights over his domestic partners and engaged in, at least, intimidatory behaviour to control them repeatedly”. It is noted that the trial judge, in formulating the direction about tendency with counsel, referred to the danger that the jury might misuse that evidence (27/05/21; T 1605.19-20).

The appellant submits that the evidence tendered for a tendency purpose was erroneously admitted, leading to a miscarriage of justice.

The Crown submits that the tendency evidence (consisting of the testimony of Ms MacAlpine concerning the appellant’s conduct towards her when they were partners) met the test for admissibility in ss 97 and 101 of the Evidence Act and was properly admitted to establish a tendency of the appellant to have a particular state of mind, namely jealousy and possessiveness toward significant intimate female partners, and to act in an aggressive and controlling manner when motivated by jealousy or possessiveness.

The Crown notes that the appellant does not here contend that his Honour acted on any incorrect principle in admitting the tendency evidence but that the appellant argues that the evidence did not have significant probative value and/or that its probative value did not outweigh the prejudicial effect of the evidence (referring to the appellant’s written submissions dated 11 May 2023 at [40]-[42]).

The Crown argues that, contrary to what may be suggested in the appellant’s submissions at [40] (summarised above at [99]), it is not necessary that the tendency evidence make all elements of the offence more likely, referring to TL v The Queen [2020] NSWCCA 265 where Hoeben CJ at CL (Bellew J agreeing at [319]) said, at [223], that the reference in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [40]-[41] (Kiefel CJ, Bell, Keane and Edelman JJ) to the need for tendency evidence to “make more likely to a significant extent the facts that make up the elements of the offence charged” (quoting from R v Ford [2009] NSWCCA 306 at [125]) did not mean that “the tendency evidence should go to prove all the elements of an offence only that the assessment of its significant probative value is measured against what needs to be proved which, in a criminal trial, are the elements of the offence”.

The Crown submits that there was no error in the present case. The Crown says that the trial judge in the tendency judgment, correctly identified (at [19]) the tests posed by ss 97 and 101 of the Evidence Act; and correctly identified (at [32]) the facts in issue to which that Ms MacAlpine’s evidence was relevant, namely “whether the accused, motivated by jealousy and possessiveness, was aggressive and controlling towards the deceased as his intimate female partner,” which could (in turn), by tending to establish motive, rationally affect the assessment of the probability of the existence of the fact in issue, being whether he inflicted bodily harm upon the deceased with the intention of at least causing her grievous bodily harm.

The Crown notes that, in concluding that Ms MacAlpine’s evidence had significant probative value, his Honour said that it did so including because of “similarities between [her] description of the accused’s behaviour towards her and in her presence, motivated by his jealousy and possessiveness and in the alleged nature of the accused’s jealous and controlling behaviour towards the deceased” (at [34]). The trial judge referred to the evidence that the appellant pressured the deceased to cancel her Facebook account the day before her disappearance, and his admissions that he had threatened to “go through [the deceased’s] phone and…go and see each person, each guy in there”, following which he cancelled her Facebook “on the spot” and “got real fucking angry” (at [25]-[26]).

The trial judge also noted that the Crown alleged that the appellant had taken methylamphetamine (ice) on the day of the deceased’s disappearance and the correlation with Ms MacAlpine’s evidence that his behaviour worsened when under the influence of methylamphetamine (at [34]). The Crown notes that in the appellant’s second police interview he said he had been smoking ice from “two or three days beforehand…all the way until I left town five days after Carly disappeared” (Ex ZZZ, 70); and that on the day of her disappearance he had “a quick couple of puffs on the pipe” on the drive to Muswellbrook near Wyee, and another “puff on the pipe” in Singleton (Ex ZZZ, 73, 76).

The Crown submits that the trial judge’s conclusion that the evidence had significant probative value was plainly correct. The Crown says that Ms MacAlpine’s evidence supported proof of the tendency alleged by the Crown, which was a specific tendency to display jealousy and possessiveness towards intimate partners and to act in an “aggressive and controlling” way towards them when motivated by that state of mind. It is noted that in Ms MacAlpine’s case the “aggression” and “control” took the form of acts of violence towards her phones and other property, as well as in reading her messages and asking her about men with whom she communicated.

The Crown says that the tendency was in turn capable of strongly supporting proof of a fact of the appellant’s motive to act aggressively towards the deceased out of jealousy or possessiveness. The Crown says that it was open to the jury to reason, if they accepted that the appellant had the alleged tendency at 30 September 2014, that he may have been triggered by jealousy on that day to assault the deceased.

The Crown argues that the fact that Ms MacAlpine did not allege any physical assault by the appellant was not determinative of whether her evidence had significant probative value. The Crown says that there was no need for her experience to be identical to that alleged against the deceased, nor strikingly similar, although her experience was similar in the respects his Honour identified at [34] of the tendency judgment. The Crown says that the evidence was relevant to a significant degree because it proved that the appellant’s jealousy and possessiveness could manifest in aggressive and controlling behaviour.

The Crown submits that the probative value of the evidence was increased by other evidence in the Crown case, including the message exchange between the deceased and the appellant (Ex HHHH) in which the appellant referred to being “violent”, as well as the body of other evidence suggesting that the appellant was motivated by jealousy, including evidence of the appellant’s own words about his feelings towards the deceased and towards Mr Easton, which the Crown notes was admissible in the trial on a separate basis (under ss 55 and 56 of the Evidence Act).

The Crown submits that the evidence of Ms MacAlpine was not excluded under s 101 of the Evidence Act, in that the probative value of the evidence outweighed, and substantially outweighed, its prejudicial effect. It is noted that the trial judge carefully considered the appellant’s submissions as to the unfair prejudice said to be occasioned by the evidence, describing the possible prejudice at [37] as being that it “portray[ed] the accused as jealous and possessive to the point of highly irrational behaviour, such as slamming one of the witness’s phones against his forehead with such force so as to destroy it” and that it suggested “sustained and determined controlling behaviour” on his part. The trial judge considered at [38] that the prejudicial effect of the evidence was ameliorated somewhat by Ms MacAlpine’s evidence that the appellant never physically assaulted her.

The Crown says that, in the context of the other evidence relating to the appellant’s motive to be jealous and controlling, Ms MacAlpine’s evidence would not be given undue weight by the jury; and that any risk of misuse could be countered through directions as to how the evidence could be used. It is noted that no complaint is made about the trial judge’s directions to the jury in that regard, which also reminded the jury of the care they need to take in relation to drawing inferences, in particular to consider whether there were “alternative explanations for the evidence” other than the tendency which the Crown alleged (7/06/21; SU 50).

Thus, in the Crown’s submission, the tendency evidence satisfied the tests in ss 97 and 101 of the Evidence Act and was properly admitted. However, if, contrary to the Crown’s submissions above, it were to be concluded that a miscarriage of justice occurred, the Crown relies on the proviso in s 6 of the Criminal Appeal Act to the extent available. In particular, in relation to ground 1, the Crown submits that the proviso is available to be relied upon, referring to Geraghty v R (at [29] per Basten AJA, Button and Chen JJ) where it was said that:

The Crown submits that the admission of the tendency evidence did not change the course of the trial adversely to the interests of the accused nor deprive him of a fair chance of acquittal; noting that the admission of Ms MacAlpine’s evidence did not result in the appellant choosing to give evidence and submitted that it had no discernible impact on the course which the trial took.

The Crown says that Ms MacAlpine’s evidence was only one piece of evidence in a strong circumstantial case; and that her evidence was not the only evidence from which a motive of jealousy and violent attitudes could be inferred. The Crown submits that the adverse aspects of Ms MacAlpine’s evidence were counterbalanced by her emphatic evidence that she was never physically assaulted by the deceased. The Crown says that that evidence was favourable to the appellant and was emphasised by defence counsel in his closing address when he reminded the jury of her evidence including that “even in the worst set of circumstances…he had never been violent to her, ever” and she said “she felt safe with him” (3/06/21; T 1844.4-12).

The Crown says that the Crown Prosecutor made fair and balanced submissions with respect to the use the jury could make of Ms MacAlpine’s evidence in his closing address including as follows:

It is noted that no issue has been taken with the trial judge’s directions on the tendency evidence, which the Crown says were appropriate (7/06/21; SU 40-50).

Section 97(1) of the Evidence Act provides:

The relevant principles are well-known. Tendency evidence has significant probative value if it could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. In Hughes at [40]-[41] (Kiefel CJ, Bell, Keane and Edelman JJ), it was said that:

The question for this Court is whether the evidence had significant probative value for the purposes of s 97(1), rather than whether it was open to the trial judge to form that view. In Geraghty v R (at [28]), the Court said it is “appropriate to consider admissibility at the time the trial judge ruled upon the question, but allow for the possibility that any clarification as to the issues in dispute which occurred after that time but before the evidence was adduced, could be relied upon”.

As to the probative force of the tendency evidence, as noted above, the appellant points to the difference between the conduct the subject of the tendency notice (i.e., violence in relation to inanimate objects but not extending to actual physical violence against the person) and the charged conduct; i.e., that the probative value of the tendency evidence is diminished by the difference in the particular acts relied on by the Crown to establish tendency.

In R v PWD [2010] NSWCCA 209 (R v PWD), Beazley JA, as Her Excellency then was (Buddin J and Barr AJ agreeing) noted (at [79]) that for evidence to be admissible under s 97 it is not necessary that there be “striking similarities, or even closely similar behaviour”.

As noted above, in the present case the question is whether the probative value of the tendency evidence substantially outweighs any prejudicial effect it may have on the appellant. In my opinion, the evidence of Ms MacAlpine, taken together with other evidence demonstrating the appellant’s tendency to jealousy (such as the text messages between the deceased and the appellant (Ex HHHH) and his police interviews (Ex WWW, ZZZ)), strongly supported the existence of a tendency on the part of the appellant to display aggression when jealous. That evidence was capable of rationally affecting the assessment of the probability that the accused had engaged in aggressive conduct towards the deceased on the day of her disappearance (and death) if he had become jealous at the realisation that the deceased had been alone with her ex-partner during her visit to Mr Easton’s home (because their child was at daycare). Indeed, the appellant had already exhibited jealousy and aggressive behaviour towards the deceased shortly before the visit when demanding that the deceased delete her Facebook account because of his complaints that other men were contacting her and sending her photographs of their genitals. Thus, I consider that the tendency evidence (going to the appellant’s tendency to jealousy and aggression) had strong probative force in the assessment of whether the appellant had killed the deceased having become jealous and acting aggressively (and the force of that evidence is not diminished by the fact that the conduct involved the smashing of phones rather than physical violence to the person).

As to the prejudicial effect of the admission of that evidence on the appellant, clearly there was a risk of such an effect. Latham J (Giles JA agreeing) in R v SK; SK v R [2011] NSWCCA 292, a case of sexual assault, stated at [28] that there is a generic prejudice inherent in tendency evidence, namely, that a jury will conclude that a person with an established tendency will yield to the tendency whenever the opportunity arises (at [28]) (see also R v AH (1997) 42 NSWLR 702 at 708 (Ireland J, Hunt CJ at CL and Levine J agreeing), citing Pfennig v The Queen (1995) 182 CLR 461 at 488; [1995] HCA 7 (Mason CJ, Deane and Dawson JJ)). However, (see Beazley JA in R v PWD at [90]), when considering whether the probative value of tendency evidence substantially outweighs its prejudicial effect, the Court is entitled to take into account that juries are to be properly directed as to the use to which such evidence is to be put. There was no suggestion that the jury might use the tendency evidence in any way logically unconnected with the issue in the trial, as to whether the appellant had murdered the deceased.

As I have said, in my opinion there was significant probative value in the tendency evidence (not diminished by the fact that it did not extend to evidence of physical violence to Ms MacAlpine’s person). I consider that the probative value of that evidence substantially outweighed the prejudicial effect of the admission of such evidence (particularly when coupled with the recognition that the jury would be given proper directions as to how to consider that evidence – noting that there is no complaint here as to the directions given in relation to the tendency evidence).

Therefore, the complaint raised by Ground 1 is not made good. Ground 1 should be dismissed.

Ground 2 raises the contention that the trial judge did not give the jury an inferences direction and erred in not doing so. The Crown notes that there is a factual issue as to whether an inferences direction was given (pointing to statements by the trial judge that suggest his Honour thought such a direction had been given). The Crown accepts, on the basis of enquiries that have been made as to the accuracy of the transcript (see as set out in the affidavit sworn 30 November 2023 of Ms Yeabee Kim) that the Court is unlikely to be able to conclude that the inferences direction was given notwithstanding that the transcript records the trial judge’s stated intention to the jury that he would give an inferences direction (3/06/21; SU 2), repeated references back to the inferences direction in the summing up (found at SU 45, 50, 96) and the fact that neither counsel raised any issue with the directions and summing up at the time.

It is not necessary to delve further into this mystery. Suffice it to proceed on the basis that it cannot confidently be concluded that the conventional inferences direction was given in terms.

The appellant complains that there was no specific direction to the jury about the drawing of inferences in what the Crown accepted was a circumstantial case in which there was no “smoking gun” (30/03/21; T 34.19). The appellant points out that his counsel sought an inferences direction (27/05/21; T 1592.17). It is noted that no application was made by the appellant’s counsel for a re-direction in relation to inferences. However, the appellant argues that there is no forensic reason that would benefit him in not having an inferences direction and submits that it is reasonable to view this as an oversight on his counsel’s part.

In his written submissions, the appellant has extracted the various references by the trial judge in his summing up to inferences, including various occasions in which the trial judge indicated that he would be saying more about inferences or giving a direction about inferences at a later stage in his summing up.

Those references included: the admonition that the jury must not draw any inference or reach any conclusion based upon the fact that the accused decided not to give evidence or to call evidence other than of Professor Duflou (7/06/21; SU 22); that the jury “is asked to infer or conclude from a combination of those established facts, that a further fact or facts existed. In this way, based upon the basic facts, the Crown asks the jury to find beyond reasonable doubt each of the elements of the offence are established, so that the accused person is guilty of the offence charged” (SU 25); and that, “[i]n order to satisfy you beyond reasonable doubt of the accused’s guilt of the offence, the Crown must first persuade you that the inference or conclusion it relies upon is a reasonable one to draw from the facts that you find established by the evidence. It then must prove to you that the only reasonable inference or conclusion that can be drawn from a consideration of all the established facts, viewed as a whole, is that the accused is guilty of the offence” (SU 26).

At SU 27, the trial judge noted that a person’s intention “may be inferred or concluded from the circumstances in which the death occurred and from the conduct of the accused person before, at the time of, or after he or she did the specific act or acts which caused the death of the deceased”.

Specific reference to the drawing of inferences was made (albeit referring to what had earlier been said about inferences, in circumstances where the transcript does not record any such direction) in the context of the submission by the defence that the jury would accept Ms Gardner’s observation of an argument and that the woman involved was the deceased, although Ms Gardner was mistaken as to the month in which the argument occurred (7/06/21; SU 45).

At SU 50, the trial judge said that:

His Honour identified a number of inferences that the Crown invited the jury to draw; the first being that the data deletion from the appellant’s telephone would have been done on or before 31 October 2014 (i.e., it would not have been done after the phone was seized because nothing was then done to it other than to download the data) (7/06/21; SU 79-80); and the further inference being that the appellant was concerned that at some stage the police would seize his phone and then search his location history (SU 80). The trial judge at that stage anticipated giving a direction about that indicating that it “is similar in terms to the directions about lies, but with some important changes” (SU 81).

His Honour also referred to the Crown submission that it might be inferred, from the timing of the cropping of the deceased’s image on her mobile phone, that the reason for the cropping was to utilise the image in the search for the deceased and that the reason it was done before the alarm bells sounded was because the appellant knew then that she was dead, that she was not coming back, the further inference being that he knew that because he had killed her (7/06/21; SU 88).

The appellant has also in his written submissions extracted references to inferences in the summing up in relation to the telephone intercept in which the Crown suggested that there was a clear inference that Mr Cunneen had been spoken to about the “tip-off” and to what inferences might be drawn about the appellant having clearly indicated previously that he was very familiar with that area, in spite of him denying that in a telephone call (7/06/21; SU 96).

The appellant has also extracted the reference to the telephone intercept between the appellant and Ms Smith “where he refers to, on that evening by inference, having asked Ms McBride to put the phone on loud speaker so he could convey a threat to Mr Bower…” and to the reliance placed by the Crown on the statement by the appellant in the intercepted conversation where he said that Mr Cunneen was one of the last persons to see the deceased, “the inference being that Mr Cunneen had seen her after the accused had killed her and when they were both disposing of her remains” (7/06/21; SU 124-125).

The appellant notes that the defence sought “a circumstantial evidence case, strands in a cable direction, and inferences direction” (27/05/21; T 11-19); and says that the reference to Ms Gardner’s observation (at SU 45) could perhaps be interpreted as a reference to the circumstantial evidence case direction given early in the summing up.

The appellant argues that the full inferences direction which should have been to be given to the jury, in light of the Crown case being purely circumstantial in nature, was as follows (drawing this from the standard bench book direction):

The appellant accepts that there may be an argument that there is substantial overlap between a circumstantial case direction and an inferences direction. However, the appellant says that the number of references to “inferences” in the summing up makes it doubly important that the jury was comprehensively informed about the drawing of inferences in a criminal case in the circumstances of the appellant's case.

As indicated above, the Crown’s submissions address this ground on the assumption that the inferences direction was not given. The Crown accepts that it was common ground between the parties that a direction on drawing inferences should be given to the jury but says that it does not follow that any failure to give the direction resulted in a miscarriage of justice. The Crown submits that, having regard to the directions and summing up as a whole, the failure to give a stand-alone inferences direction (if this Court proceeds on that assumption) did not give rise to a miscarriage of justice.

The Crown notes that, to constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act, the failure (to give an inferences direction) had to be prejudicial in the sense that there was a “real chance” that it affected the jury’s verdict (citing Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (Hofer v The Queen) at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J (as his Honour then was)), “realistically [could] have affected the verdict of guilt” (at [123] per Gageler J), “had the capacity for practical injustice” or was “capable of affecting the result of the trial” (Edwards v The Queen (2021) 273 CLR 585; [2021] HCA 28 at [74] per Edelman and Steward JJ; Tomlinson v R [2022] NSWCCA 16 at [121] to [142] per N Adams J).

The Crown says that the trial judge referred to the process of drawing inferences on multiple occasions throughout his summing up, in circumstances which elucidated that concept; and places weight on the circumstantial case direction which was given (7/06/21; SU 24-26) and which directed the jury about the process of inferring a fact from a combination of facts.

The Crown notes that the trial judge also referred to inferences in other parts of the summing up, such as in the context of the tendency direction:

It is noted that the jury were given directions on fact finding in a circumstantial case (which the appellant accepts overlapped with an inferences direction – see [48] of the appellant’s written submissions), repeated directions on the onus and standard of proof, directions on applying common sense in fact finding, the need to find facts consistent with the evidence and to rule out any reasonable conclusion other than guilt. Insofar as the appellant submits that the inferences direction was important to the defence case on a possible alternative perpetrator, the Crown notes that the trial judge directed the jury on the need to exclude any reasonable possibility that Mr Easton killed the deceased in order to convict the appellant (7/06/21; SU 48).

The Crown submits that, having regard to the directions and summing up as a whole, it is not conceivable that the jury failed to appreciate that insofar as they acted by inference they should consider alternative possible explanations for any inference or conclusion they are considering and should not speculate or guess, and that the appellant’s guilt had to be a rational conclusion and with satisfaction beyond reasonable doubt. The Crown refers to similar cases in which a ground alleging a failure to adequately direct the jury in relation to the drawing of inferences was rejected (Imnetu v The Queen [2006] NSWCCA 203; R v Bikic [2002] NSWCCA 227).

The Crown also notes that the Crown Prosecutor’s opening and closing informed the jury that their fact finding would involve the drawing of inferences and what this entailed, including as it related to the onus and standard of proof. The Crown accepts that a Crown Prosecutor’s description of the process of drawing inferences is not a substitute for a direction by a trial judge but submits that, in combination with his Honour’s directions, the jury was adequately directed on the fact finding process and would have understood how to draw an inference from a fact.

It is noted that the Crown’s opening introduced the concept of “inferences” as being “something that we do in our every day life” such as when approaching a traffic light and making a decision as to whether to cross the road; and that the Crown referred to inferences being drawn from individual pieces of evidence in a circumstantial case (30/03/21; T 34). Further, in the Crown’s closing, the Crown Prosecutor described the nature of a circumstantial case, by reference to cables on the Anzac bridge and a jigsaw puzzle, before saying:

The Crown submits that, when read as a whole, the directions given by the trial judge with respect to the drawing of inferences were adequate. If, however, it were to be concluded that there was a miscarriage occasioned by the failure to give the direction, the Crown submits that in principle the proviso can apply if error was found under this ground, having regard to the strength of the Crown case.

It is tolerably clear from the transcript of the summing up (including various of the parts extracted in the appellant’s submissions) that, although the trial judge clearly intended to give the conventional inferences direction, the trial judge omitted to do so. However, there is no doubt that his Honour drew to the jury’s attention the need for care in the drawing of any inferences from the direct evidence (including his reference to the jury being directed to consider whether there might be alternative explanations for the evidence and that the jury “should not draw an inference from the direct evidence unless it is a rational inference in the circumstances” (that being said in the context of the tendency direction about which there was no complaint) (7/06/21; SU 50)). His Honour also directed the jury in relation to the nature of this being a circumstantial case (7/06/21; SU 24-26).

While counsel for the appellant had requested that an inferences direction be given, it is not insignificant to note that he did not seek any re-direction at the end of the summing up by reference to the absence of the standard inferences direction; which suggests that he considered that the summing up as a whole had adequately instructed the jury as to the drawing of inferences.

In view of the overall directions given to the jury (particularly the fact that there was a proper direction as to the standard of proof in a circumstantial case and the reference to care in the drawing of inferences and the need to consider whether there might be alternative explanations for various matters), I am not persuaded that the failure to give the conventional or standard inferences direction constituted a miscarriage of justice pursuant to s 6(1) of the Criminal Appeal Act. In other words, I do not consider that the failure to give a conventional or standard inferences direction realistically could have affected the verdict of guilt or that there was a “real chance” that it affected the jury’s verdict (to adopt the formulations used in Hofer v The Queen as cited above).

As no miscarriage of justice arising from the failure to give a separate inferences direction has been established, Ground 2 should be dismissed.

By Ground 3, the appellant contends that the trial judge erred in disallowing cross-examination of Mr Easton on behalf of the appellant directed to information he provided to Centrelink about his income. The issue arose in the following way.

Mr Easton gave evidence that he moved to Muswellbrook with his daughter in early 2014, before which he resided in the Newcastle area (3/05/21; T 733.36-42). In cross-examination, Mr Easton agreed that, when he was living in Newcastle, he received financial support from his mother and stepfather and a disability pension due to a back injury (3/05/21; T 747.28-30; T 753.7-12); and that he occasionally did work in pest control (3/05/21; T 747.41-43). In cross-examination he was asked (3/05/21; T 747.45-46):

The Crown objected to the question on the basis of relevance. The Crown submitted in effect that whether Mr Easton had not provided any information to Centrelink (assuming Mr Easton had not) was not relevant to the issues in the trial (3/05/21; T 749.12-16). Counsel for the appellant’s response to the question of relevance (in the absence of the jury) was that “there’s a connection between what we say is the motive to do harm to [the deceased]. It goes further than the custody of [the daughter]. It also goes to aspects of his desire to ensure that his financial interests are maintained” (T 749.44-47); and “it comes to his concentration on earning money from Centrelink and the perceived threat of when [the deceased] is striving to have further access to their daughter and also it impacts upon his ability to get a higher level of benefits from Centrelink through parent support” (T 751.39-42).

The suggestion seemed to be that the connection between questions as to the lack of disclosure to Centrelink and motive to harm the deceased was that Mr Easton “was striving to maintain the child support benefit as a single parent” and it was suggested that “it will come out further there was a dispute between he and the deceased about apportionment of that payment. So that’s where we say it’s relevant. The entire scheme of how he was making money is relevant to the issues in the trial” (3/05/21; T 750.1-5).

Relevantly, there was the following exchange with the appellant’s counsel (3/05/21; T 751.22-752.8):

The appellant emphasises that Mr Easton was the last person who reported seeing the deceased alive. It is noted that he was interviewed by police on two occasions and “had a clear memory of somethings, and about other things he was unsure about his recollection” (7/06/21; SU 28).

The defence suggested that a motive for Mr Easton to have killed the deceased was that the deceased intended to seek custody of their daughter and that the relationship between Mr Easton and the deceased was “at least, argumentative” (7/06/21; SU 39). The appellant says that cross-examination of Mr Easton explored that he would be financially worse off if the daughter was returned to the deceased’s care by virtue of loss of Centrelink payments (SU 39-40).

In this regard the appellant points to his Honour’s summing up, where he said:

The appellant (at [51] of his written submissions dated 30 May 2023) argues that Mr Easton was “a, if not the, pivotal witness in the case” and points out that it was necessary for the jury to exclude as a reasonable possibility that Mr Easton killed the deceased (7/06/21; SU 47-48). The appellant says that, during cross-examination of Mr Easton the appellant’s counsel commenced a line of cross-examination in relation to a “financial motive” for Mr Easton to be upset with the deceased as he received Centrelink support as their daughter’s primary carer; namely that if the deceased was successful in obtaining custody, part or full of their daughter, Mr Easton’s finances would be imperilled.

The appellant says that, allied to that line of cross examination, was the cross-examination that defence counsel sought to pursue in relation to dishonesty in Mr Easton’s dealings with Centrelink (to the effect that at the time of the deceased’s disappearance he was on a “disability support pension” while receiving income support from his parents/step parents and doing some work for a pest control business (see 3/05/21; T 747-753) and that he had not told Centrelink about the financial support he was getting from his parents).

The appellant accepts that it would have been more helpful to his Honour if various aspects and sections of the Evidence Act were referred to in relation to the application but says that it appears clear that defence counsel was seeking to attack the credibility of Mr Easton, in asking if he had engaged in a dishonest course of conduct with Centrelink, to ensure he did not lose any income. It is submitted that the ground work had been laid through the receipt of income from his parents and part time work with the pest company and that the evidence the appellant sought to adduce concerned events from the witness’ life which could be suggestive of dishonesty on his part. The appellant accepts that the credibility rule (s 102 of the Evidence Act) ordinarily precludes evidence of this nature from being given, subject to certain exceptions.

The appellant appears to accept that if the evidence was only relevant to credibility it had to have the capacity substantially to affect the assessment of Mr Easton’s credibility. The appellant submits that evidence which could be important, or of real and persuasive significance, when assessing the reliability of statements made by Mr Easton, must be capable of substantially affecting the assessment of Mr Easton’s credibility.

The appellant argues that the context in which the assessment is to be made is important and says that it is, to a significant extent, established by the nature of the importance of the place the witness took in the circumstances of the case, those circumstances including his Honour’s reference to the “Easton theory” during the summing up (7/06/21; SU 47, 48). The appellant refers to a number of cases which have considered where the line is to be drawn with credibility evidence: R v Aldridge (1990) 20 NSWLR 737, which concerned rejected cross-examination of the victim as to his criminal record, and in which it was held at 740 per Hunt J (Enderby and Grove JJ agreeing) (applying Bugg v Day (1949) 79 CLR 442 at 467 (Dixon J); [1949] HCA 59) that convictions for any offences (even for offences which do not themselves involve any question of dishonesty) are admissible in relation to credit, upon the basis that a conviction for any offence against the law may have some effect upon the credit of the witness; R v Burns [2003] NSWCCA 30, where the rejected cross-examination of two witnesses was as to the criminal history of each for offences of dishonesty, and in the case of one witness the majority considered that the jury might have taken a different view of the evidence of an important Crown witness had the jury been aware of his convictions (per Buddin J at [103], Hodgson JA agreeing); and R v Lumsden [2003] NSWCCA 83, where the Court rejected the argument that cross-examination of an alibi witness as to his criminal conviction breached the credibility rule on the basis that his credibility and reliability were important factors in the case, and knowledge of his prior convictions was very relevant to an assessment of whether he could be relied upon to tell the truth (Hulme J at [56]-[58], Mason P agreeing).

The appellant submits that the trial judge’s ruling not to permit cross-examination, given the importance of the witness in the overall circumstances of the case, was an error giving rise to a miscarriage of justice.

The Crown submits that the trial judge was correct to disallow the line of cross-examination of Mr Easton directed to whether he had not reported certain income to Centrelink, as the proposed questioning was unparticularised and lacked a proper evidentiary basis, and was not capable in those circumstances of substantially affecting an assessment of Mr Easton’s credibility for the purpose of s 103 of the Evidence Act.

The Crown notes that the basis of the application before the trial judge to cross-examine Mr Easton on the Centrelink income issue was that he had a partial financial motive to kill the deceased due to an alleged fear of a loss of income from Centrelink if he lost custody of the deceased’s and his daughter; but that the appellant accepts on this appeal (in the appellant’s written submissions dated 30 May 2023 at [56]-[59]) that the evidence went to Mr Easton’s credibility (no longer suggesting it was relevant to motive) and that an exception to the credibility rule had to apply.

In the Crown’s submission, the evidence sought to be adduced was “credibility evidence” as defined in s 101A of the Evidence Act and was not admissible under the credibility rule in s 102 or the exception to that rule in s 103.

The Crown does not take issue with the proposition that Mr Easton was a key witness in the trial and accepts that it was necessary for the jury to exclude the possibility that he was involved in the deceased’s murder in order to convict the appellant. The Crown says that it follows from the jury’s verdict that they accepted Mr Easton’s account that the deceased had left his home at around 2pm on foot and that he did not see her again.

The Crown notes that the suggestion in cross-examination was that Mr Easton had not reported unspecified sums of money received from his parents to Centrelink; and that it was not suggested that he had failed to report any more formal sources of income, such as through his pest control work. The Crown says that (whether the evidence was said to be relevant to credibility only or credibility and a motive to murder the deceased) there was no evidence before the trial judge that Mr Easton had in fact been dishonest in his dealings with Centrelink; i.e., there is no suggestion in the transcript (or in this appeal) that Mr Easton was being cross-examined on some known material capable of proving that he did not report something to Centrelink in circumstances where he was obliged to do so.

It is noted that there was no evidence, for instance, of what Mr Easton’s Centrelink entitlements in fact were at any time, what sums of money he received from his parents, what obligations he had to report sums of money to Centrelink and whether any such obligations extended to a requirement to tell Centrelink about sums of money he received from his parents. The Crown says that, as far as the transcript reveals, the suggestion that he had failed to report something he was obliged to did not go beyond conjecture.

The Crown says that there was no explanation as to how, if at all, Mr Easton stood to financially gain by the deceased’s death (by reference to the quantum of his entitlements, for instance) and it was not at all clear how any motive was impacted by what information he did or did not provide to Centrelink.

The Crown submits that if his Honour had been asked to rule on whether s 103 applied, the question would have been whether the evidence could “substantially affect the assessment of the credibility of the witness” (per s 103 of the Evidence Act) and that the dearth of information regarding Mr Easton’s reporting to Centrelink was sufficient to reject that conclusion. The Crown says that the circumstances are similar to those considered in Xu v R [2023] NSWCCA 93 in which this Court concluded that the trial judge had not erred in disallowing a line of questioning of the complainant about her subpoenaed academic transcript, which recorded the words “cheat fail”, in circumstances where there was a “dearth of information about the matter” (at [15] per Hamill J) and no evidence that it related to a circumstance where there was an obligation to tell the truth (at [207] per N Adams J who agreed with Hamill J in rejecting the ground).

In any event, assuming in the appellant’s favour that there had been evidence that Mr Easton had understated his income to Centrelink, the Crown says that there would nonetheless need to be some detail as to the circumstances and the sums of money not reported for a proper assessment to be made on the extent to which it affected his credibility. The Crown suggests that it might be inferred that the financial assistance he received from his parents was not so significant that it would bear on his credibility in denying the commission of a murder.

It is noted that there was no suggestion that Mr Easton’s alleged conduct towards Centrelink was criminal; and that it was not the case that he had any criminal convictions for dishonesty related offences. The Crown says that, for that reason, each of the cases cited in the appellant’s written submissions at [60] (see [168] above) is far removed from the present case.

Again, the Crown says that if, contrary to the Crown’s submissions on this ground, it is concluded that a miscarriage of justice was occasioned, then it relies on the proviso in s 6 of the Criminal Appeal Act.

The Crown says that the nature and effect of the error asserted in this ground is not such as would prevent this Court from undertaking its assessment as to whether guilt has been proved to the requisite standard. The Crown says that the proposition that was sought to be put to Mr Easton provided at best a general challenge to his credibility; and the Crown submits that this was of very little significance having regard to the compelling evidence excluding Mr Easton as the assailant.

I consider that the trial judge was correct to reject the suggestion that whether Mr Easton had failed to inform Centrelink of financial support from his family was relevant to the question of motive on his part to harm the deceased. As the trial judge accepted, the prospect that the deceased might have been planning to seek custody of their daughter (which, if successful, would presumably have diminished his Centrelink income) is one thing; whether he had dishonestly failed to provide information as to his financial income is quite another thing. Thus I accept that the only basis on which this line of cross-examination could potentially have been relevant was as to the credit of the witness; and I consider that Mr Easton’s truthfulness or otherwise on some earlier Centrelink application could not rationally affect his credibility on the issues relevant to the trial.

Accepting that prior criminal convictions and dishonest conduct can in particular cases be relevant when assessing the credit of a witness (or an accused), in the present case there was insufficient connection in my opinion between failing (allegedly) to disclose financial information to Centrelink and the evidence on which Mr Easton was being tested (such as when the deceased left his home and the circumstances in which, the following day, he took their daughter earlier to daycare than usual) in order rationally to affect the assessment of his credibility.

Ground 3 should be dismissed.

Ground 4 (which in oral submissions, and then only in reply, was the only ground addressed by Senior Counsel for the appellant on this appeal (AT 35-37)), involves the assertion that the trial judge was obliged to leave manslaughter by unlawful and dangerous act as an alternative verdict to murder and erred in not so doing.

The appellant refers to the summary of the principles relevant to leaving “unlawful and dangerous act” manslaughter to the jury as set out by Beazley JA (with whom James and Hall JJ agreed) in Blackwell v Regina [2011] NSWCCA 93 at [49]-[51], emphasising the statement of principle adopted by Gleeson CJ and Gummow J in Gilbert v The Queen (2000) 201 CLR 414; [2000] HCA 15 at [19] from Lord Tucker in Bullard v The Queen [1957] AC 635 at 644 that “[e]very man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached”.

The appellant says that if leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) is required, then leave should be granted, referring to the principles in relation to a grant of leave as summarised in Roos v R [2019] NSWCCA 67 at [71]-[74] (Gleeson JA, Harrison and Davies JJ agreeing). It is not necessary here to repeat those principles.

The appellant says that in the present case the medical evidence varied as to how many strikes were required to sustain the injuries located on the deceased’s skeletal remains. The appellant submits that if those injuries were capable, as a reasonable possibility, of being occasioned without a specific intent to cause really serious bodily injury or to kill, then his Honour was obliged to leave the alternative verdict of manslaughter to the jury. It is noted that his Honour recognised as much in his statement that he had to consider the issue “independently of counsel” (31/05/21; T 1757.14).

The appellant says that where his Honour observed that “the nature of the injuries bespeaks an intent” (27/05/21; T 1602.50), the question that should have been asked was “Is there a rational view of the evidence which leaves open to the jury a reasonable possibility that the injuries located on the skeletal remains of the deceased were occasioned other than with a specific intent to cause, at least, grievous bodily harm?”. The appellant says that this question would have focused on the evidence as to the mechanism of the injuries located, rather than the injuries themselves. The appellant submits that in some respects the medical evidence was equivocal and conflicting as to how many blows (if there were blows and not another mechanism) were occasioned and therefore the issue of a lack of intent was reasonably open. It is noted that his Honour eventually found in his sentencing remarks, beyond reasonable doubt, that he was satisfied the appellant inflicted at least one blow to the deceased’s head, and at least one separate blow to the deceased’s back (see R v Newson (No 5) [2021] NSWSC 1661 (remarks on sentence) at [48]). It is submitted that the finding of two blows discloses that “unlawful and dangerous act” manslaughter should have been left to the jury.

The appellant submits that, as a practical matter, a trial judge should err on the side of caution in leaving the alternative form of homicide; that the position of the parties is not determinative of the question; and the appellant invokes the principle that, within a continuing course of conduct, there need not be strict temporal concurrence between the necessary mental element for murder and the physical element of a voluntary act causing death (referring to Thàbo Meli v R [1954] 1 All ER 373).

The Crown submits that there was no viable evidentiary basis for leaving an alternative verdict of manslaughter to the jury and that his Honour did not err in not doing so , and emphasises that the appellant’s trial counsel abandoned a submission that manslaughter should be left to the jury, having stated, after being asked to explain the basis on which it could be left, “I recognise what your Honour says, there’s no ground to seek an alternate for manslaughter so I abandon that” (31/05/21; T 1757.11-12). The Crown says that his Honour was live to the need independently to consider the issue despite that position (referring to Lane v R (2013) A Crim R 321; [2013] NSWCCA 317 (Lane v R) at [39] (per Bathurst CJ, Simpson J, as her Honour then was, and Adamson J, as her Honour then was)).

The Crown notes that in Lane v R, the Court considered the requirement that the verdict be available “on the evidence” to be a “critical element” of the principle (at [40], referring to the separate judgments of each of Barwick CJ, Menzies, Windeyer and Owen JJ in Pemble v The Queen (1971) 124 CLR 107; [1971] HCA 20 (Pemble) to that effect); and notes that, at [42] in Lane, the Court confirmed the statement of principles governing the availability of an alternative verdict of manslaughter and the consequences of a failure of a trial judge to direct a jury on its availability drawn from R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 (Kanaan) per Hunt AJA, Buddin and Hoeben JJ at [75].

The Crown submits that in the present case there was no evidence to support an alternative verdict of manslaughter and that the concession to that effect by the appellant’s trial counsel (at T 1757.11-12) was properly made.

Insofar as the appellant now relies on the nature and mechanism of the injuries sustained by the deceased (see appellant’s written submissions dated 30 May 2023 at [72], [74]) as supporting the availability of an alternative verdict of manslaughter, the Crown points out that the trial judge considered this issue in legal argument during the trial and expressed the view that the injuries were inconsistent with manslaughter (31/05/21; T 1757.31-34). It is noted that, in sentencing the appellant, his Honour concluded that they were consistent not only with murder, but with an intention to kill (remarks on sentence at [55]). The Crown submits that those conclusions were correct.

The Crown notes that Professor Duflou, called in the defence case, agreed with Dr Clifton that the injuries to the deceased’s head caused her death; and that Professor Duflou gave evidence that the major “difference of opinion” he had with Drs McCardle and Clifton was that he considered that “a single blow of very significant force can cause a large number of fractures throughout the skull” if the person’s head impacted a firm surface such as the ground (31/05/21; T 1718.8-15).

The Crown says that, as his Honour observed in sentencing, this was not a difference in opinion at all (remarks on sentence at [35]-[37]). The Crown says that while Dr Clifton was “certain” that there were “at least two” impacts to the deceased’s head (one directed to the left side of the face and one directed to the back and right side of the head), Dr Clifton did not opine that there were definitely two “blows” (at separate times); rather, Dr Clifton considered that it was possible for two “impacts” to have been caused by a single blow of a high degree of force followed by the deceased’s head hitting a hard surface (20/04/21; T 246.46-247.3). The Crown says that this was consistent with Professor Duflou’s evidence that if all of the injuries to the head were the result of a single blow this occurred with the head being close to the ground.

The Crown cavils with the submission by the appellant (see appellant’s written submissions dated 30 May 2023 at [74]) that the expert evidence was “equivocal and conflicting…as to how many blows” were required to cause the injuries.

The Crown notes that: Professor Duflou and Dr Clifton agreed on the cause of death (blunt force head trauma); and both experts gave evidence to the effect that there may in fact have been multiple blows to the head (which Professor Duflou said was “entirely possible” (31/05/21; T 1721.20)). The Crown also notes that Professor Duflou and Dr Clifton were able to envisage a scenario in which there was a single blow but that it would necessarily have been in circumstances where significant force was used and the deceased’s head hit against a hard surface, such as the ground, to cause “fractures on both sides of the head” and “a large number of fractures throughout the skull” (Dr McCardle was not asked to consider such a scenario) (31/05/21; T 1718.8-13). The Crown says that the experts agreed that in addition to a blow or blows to the head, there was at least one separate blow to the deceased’s body of sufficient force to break the scapulae. (Professor Duflou opining that one would need to be “struck hard” for the scapulae to fracture (31/05/21; T 1720.33-37)).

The Crown submits that, on any scenario, the injuries were only consistent with an intent to cause at least really serious bodily injury. It is submitted that if multiple blows were inflicted to the head in addition to at least one blow to the body, this was consistent with a repeated and sustained assault on the deceased. The Crown says that the minimum possibility of two blows (one to the head and one to the body) does not mean that a verdict of manslaughter was viable (cf the appellant’s written submissions at [74]). The Crown argues that of more significance than the number of blows is the unanimity in the experts’ opinion that “significant force”, “high force” or “severe force” was required for the injuries to be sustained (20/04/21; T 245.47-48; T 248.34; T 252.44). The Crown submits that that evidence was inconsistent with an absence of specific intent to cause really serious bodily injury.

The Crown also points out that there was no evidence during the trial which could otherwise support the alternative verdict now pressed. It is noted that the appellant’s version, given in two detailed police interviews, was that he had no involvement in the deceased’s injuries and no knowledge of her death; and that the appellant’s counsel pursued in cross-examination of each expert the possibility that the deceased had been hit by a vehicle (but did not pursue this in closing). It is noted that, in closing, the appellant’s counsel put forward two hypotheses – an assault by an unknown person in the context, potentially, of a robbery or drug deal, and that Mr Easton had murdered the deceased (3/06/21; T 1849.24ff). The Crown accepts that the onus remained at all times on the Crown but says that no viable hypothesis arose that supported a scenario in which the appellant was involved in a way that fell short of murder (and notes that none is suggested on this appeal).

The Crown says that if an alternative verdict of manslaughter had been left, the jury would have been constrained to speculate and in a way that was inconsistent with the evidence of an intentional brutal attack on the deceased. Reliance is placed on what was said by the High Court in The Queen v Baden Clay (2016) 258 CLR 308; [2016] HCA 35 (Baden Clay) at [62]-[63] (French CJ, Kiefel, Bell, Keane and Gordon JJ).

The Crown also says that r 4.15 of the Criminal Appeal Rules can apply in principle to this ground referring to what was said in Kanaan at [99]-[100] (per Hunt AJA, Buddin and Hoeben JJ) about an accused who relied upon alibi in a trial for murder but on appeal contended that manslaughter ought to have been left to the jury, namely that:

The Crown says that Carbone v R [2020] NSWCCA 318 does not stand for the proposition that r 4.15 cannot apply to a ground of this kind (noting that there, manslaughter was left to the jury but the directions of the trial judge were not adequate because there was a different basis on which a verdict of manslaughter would have been viable but about which no direction was given and this Court did not consider that r 4 could stand in the way of success because the “all or nothing” question with which the jury was confronted may have led them to return a verdict of guilty of murder (at [150] per Button J, Bathurst CJ and Wilson J agreeing)).

It is noted that in Evans v R [2023] NSWCCA 11, the parties made submissions to the Court concerning the application of r 4.15 to a ground alleging a failure to leave manslaughter to the jury but the Court concluded that there was no evidence on which the jury acting reasonably could find manslaughter and hence considered it unnecessary to deal with the arguments concerning the application of r 4.15 (Price J at [90], [120], Lonergan J agreeing).

The Crown submits that, there being no viable basis for manslaughter by unlawful and dangerous act to arise, it cannot be said that the appellant lost a real chance or a chance fairly open to him of being found not guilty of murder but guilty of manslaughter.

As referred to by the Crown, the principles on which an alternative verdict of manslaughter should be left to the jury were set out in Kanaan (and confirmed in Lane v R); the first of which is that (see Kanaan at [75]):

If an alternative verdict of manslaughter should have been left to the jury, but was not, there will have been a wrong decision on the question of law, and s 6 of the Criminal Appeal Act requires this Court to set aside the conviction unless the Crown can satisfy the Court that no substantial miscarriage of justice has occurred (Mraz v The Queen (1955) 93 CLR 493 at 514 (Fullagar J); [1955] HCA 59 (Mraz); Kanaan at [46] (Hunt AJA, Buddin and Hoeben JJ)).

The mere fact that the jury may have found all the elements of murder proved does not necessarily obviate the need to consider whether manslaughter was a viable alternative. If it were a viable alternative, and the manslaughter verdict was not left to the jury, then there will have been an error of law (Lane v R at [43] per Bathurst CJ, Simpson and Adamson JJ). This requires an examination of the evidence in the matter, and whether that evidence was available to support a verdict of manslaughter.

In cases of manslaughter by unlawful and dangerous act, in accordance with Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 (Wilson), there must have been an act which is contrary to criminal law (Wilson at 335 per Brennan, Deane and Dawson JJ), and one which carries with it an appreciable risk of serious injury (Wilson at 333 per Mason CJ, Toohey, Gaudron and McHugh JJ). As made clear in The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [40] per Gleeson CJ, McHugh, Gummow and Hayne JJ, this form of manslaughter is an objective test; the only relevant intent of the accused is the intention to do the unlawful and dangerous act.

In Beavan v The Queen (1954) 92 CLR 660; [1954] HCA 41, the Court (Dixon CJ, McTiernan, Webb, Fullagar and Taylor JJ) said at 662:

Having reviewed carefully the medical evidence adduced at the trial, I consider that manslaughter by unlawful and dangerous act was not a viable alternative verdict in the present case. Significant force was undoubtedly applied to the deceased. Whether or not there was a single blow to the head (or more than one blow to the head), the experts were agreed that a separate blow was required to inflict the injury to the scapulae (and significant force was required in order to result in the injury sustained by the deceased in this regard). The application of such significant force on at least two separate blows is inconsistent with there being an act without the requisite intent for the charge of murder (i.e., the only intent being to commit an unlawful and dangerous act).

At trial, the appellant’s counsel noted that the Crown case was that the act(s) occurred spontaneously but the evidence was then silent as to the “possibility or anything about intervening acts”. The appellant’s counsel said “the jury might well think that it’s something that’s happened inadvertently by loss of temper, for example, and that the deceased was taken out into the bush and she was dumped there but not — and still alive. That’s one scenario, for example. There’s a myriad of possibilities that can fit into a scenario where the deceased is not dead when the accused leaves her”; and, as noted above, for the appellant it is said that there can be significant injuries inflicted without the requisite intent to inflict serious bodily injury. That last proposition, however, fails in my opinion to grapple with the force of the medical evidence as to the ferocity of the impacts on the deceased that caused her death.

I agree with the observations of the trial judge during the course of the hearing that the force that must have been involved to produce those separate injuries (to her head and her scapulae) is such that manslaughter was not a viable alternative. (Tellingly, though I accept this is not determinative, the appellant’s counsel did not at trial ultimately suggest otherwise.) As in Baden Clay, (see at [63] per French CJ, Kiefel, Bell, Keane and Gordon JJ), the hypothesis of death having occurred at the hands of the appellant but without an intent to kill the deceased or to cause serious bodily harm is inconsistent with the defence case at trial that he had not been involved at all.

In my opinion, it was not incumbent on the trial judge to leave the alternative of manslaughter by unlawful and dangerous act to the jury as it was not a viable alternative to the charge of murder.

Ground 4 should be dismissed.

The final ground of appeal against conviction is the unreasonable verdict ground, which raises the principles identified by the High Court in M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 (M v The Queen) (per Mason CJ, Deane, Dawson and Toohey JJ):

See also Dansie v The Queen (2002) 274 CLR 651; [2022] HCA 25 (Dansie), where the High Court, referring to M v The Queen, noted at [9] (per Gageler, Keane, Gordon, Steward and Gleeson JJ) that the joint judgment in M v The Queen had made clear how consideration of the role of the jury and its advantage in seeing and hearing the witnesses are to impact on the court’s independent assessment of the evidence.

The focus is upon whether the jury “‘must’, as distinct from ‘might’, have entertained a doubt about the appellant’s guilt” (see Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] (Hayne J, with whom Gleeson CJ and Heydon J agreed)), which was affirmed in Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 (Pell) at [43]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

As adverted to above, the appellate court is required to conduct an independent assessment of the evidence, weighing its sufficiency and quality, to establish guilt to the criminal standard (SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 (SKA) at [14] (French CJ, Gummow and Kiefel JJ). The Court must weigh the competing arguments and inferences said to arise on the evidence for itself, except where the jury was at an advantage (SKA at [20]-[23]).

The appellant, having referred to M v The Queen and SKA, also cites the following passage from Guo v R [2020] NSWCCA 40 at [3] (Meagher JA, Johnson and Hamill JJ):

Reference is also made to what was said in Pell as to the correct approach and the limits on the appellate court’s role (at [37]-[39]):

Thus, the appellant says that the determination of whether the verdict of guilty was unreasonable or unsupported by the evidence in the present case reduces to whether it was open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that the appellant (as the Crown opened its case) murdered the deceased at about 2pm on 30 September 2014 in the Muswellbrook area before dumping her remains the same afternoon at a location known as Owens Gap which is about 17km outside the township of Scone.

The appellant argues that the totality of the following matters leads to the conclusion that the verdict is unreasonable and unsupported by the evidence.

First, that Detective Senior Constable (DSC) Chrystal gave evidence that she was unable to advise if there was DNA testing carried out on a cigarette lighter found with the deceased’s remains (19/04/21; T 158.50-159.6).

Second, that DSC Chrystal gave evidence that a McDonald’s cup photographed at the scene where the deceased’s remains were found was never seized and DNA tested, in circumstances where the Crown case was when the deceased was last seen she was on her way to a McDonald’s where she was “intercepted” by the appellant (19/04/21; T 159.43-45).

Third, that the deceased met the witness Terry Sansom one night in or about February 2014; that the deceased told Mr Sansom she had an argument and got out of her (then) boyfriend’s car and asked if she could go to his home; and that, having known each other for 90 minutes they commenced a relationship that lasted a few weeks (ending one day when the deceased left saying “I’m going, I’ll be back later” but she never returned to Mr Sansom’s premises) (23/04/21; T 375.48); together with the evidence that Mr Easton and the deceased met one night for dinner and the deceased moved in that night (28/04/21; T 638.40-41). The appellant argues that this evidence gives rise to an inference that the deceased could engage in conduct that was inherently risky (though emphasising that this is not sought to be used for tendency reasoning).

Fourth, that the Crown posited that the appellant was not at Mr Cunneen’s premises on the afternoon of 30 September 2014, the appellant noting that Mr Palmer accepted that his recollections of attending Mr Cunneen’s premises at the relevant time and the appellant not being there could have been a day other than 30 September 2014 (27/04/21; T 575.15-17).

Fifth, that Sergeant Norris attended Mr Easton’s premises at 9.55pm on 30 September 2014 and, rather than inviting the officer inside, Mr Easton asked the officer to go outside as his daughter was asleep (3/05/21; T 697, 787). The appellant points out that, on the Crown case theory, by this time the deceased had met her fate.

Sixth, that on 30 September 2014 Mr Easton dropped his daughter off at preschool/child care at 9am, as was his practice; but that on 1 October 2014 (the morning after the deceased was last seen), business records reveal that Mr Easton dropped his daughter off at preschool/child care at 7am (3/05/21; T 764.23-34). The appellant emphasises that the daughter had never been dropped off that early previously.

Seventh, that, having taken his daughter to preschool/child care early at 7am on 1 October 2014, Mr Easton then went to his parents’ farm at Dartbrook to look after animals before he went to Target at Scone to buy clothes for his daughter (29/04/21; T 698.34-699.21).

Eighth, that the evidence of Professor Duflou was that the head injuries sustained by the deceased could be expected to have resulted in “torrential bleeding” (31/05/21; T 1732.40); and that premises and vehicles to which the appellant had access were the subject of forensic searches and no forensic evidence was presented linking the appellant to the deceased’s violent death.

Ninth, that Mr Easton told police in his interviews that on 1 October 2014 that his daughter “might’ve got up at 5.30 ‘cause I was wandering around, you know, cleaning, and what not, and once I mentioned pre-school she was at the front door giving me the hurry up” (3/05/21; T 785.11-14).

Tenth, that Crime Scene Officer (CSO) Gruber went to the Calgaroo Avenue address on Thursday 23 October 2014 and conducted an examination of the premises; and said that there was a strong smell of chemical/deodoriser upon entering the premises and in the living room (13/05/21; T 1156.41-48).

Eleventh, that Mr Easton’s utility was forensically examined on 24 October 2014 and, shown photographs of the rear of his ute during the trial, Mr Easton agreed there was “some staining” but he had “no idea” what caused it (3/05/21; T 780.23-782.11). The appellant notes that Mr Easton agreed the stains were “reddish brown spots” and there was a piece of wood in the rear tray. It is noted that police investigations were that the various items (stains and wood) were tested for blood and were negative but that there was no testing for other DNA (such as saliva or urine).

The Crown submits that on the Court’s independent assessment of the whole of the evidence it would be satisfied that it was well open to the jury to be satisfied of the appellant’s guilt of the offence of murder beyond reasonable doubt. The Crown submits that this is not a case where the jury must have entertained a doubt about the appellant’s guilt. It is submitted that, notwithstanding that there was no forensic evidence linking the appellant to the deceased’s murder, there was a substantial body of circumstantial evidence establishing that the appellant murdered her.

The Crown notes that its circumstantial case was based on: the appellant’s opportunity on 30 September 2014 to kill the deceased; his tense relationship with her in the days leading up to her disappearance; his motive of jealousy and anger concerning her relationship with Mr Easton and other men; and the appellant’s conduct indicating a consciousness of guilt. As to those matters, the Crown makes the following submissions.

As to the opportunity to commit the offence, the Crown notes that Mr Easton gave evidence that the deceased left his home at Calgaroo Avenue at about 1.45pm to 2pm, saying that she was going to McDonald’s “to get Sayle to pick me up from there” (3/05/21; T 735.37-38). Mr Easton said that she went out the front door and turned right.

The Crown notes that there were telephone records that showed that at approximately 2.13pm, Mr Palmer telephoned Mr Cunneen and sent him a message (Ex JJJ, 3). The Crown points to Mr Palmer’s evidence that, on that day, he attended Mr Cunneen’s address shortly after 2.13pm to collect something and that he saw nobody apart from Mr Cunneen at the house (and to his evidence referred to earlier as to how long he stayed and where he and Mr Cunneen stood (see above at [21])).

The Crown points out that, at the commencement of the trial, the jury attended Mr Cunneen’s address on a view; and that it was described by the Crown as a ‘tiny little cul-de-sac”, in the Crown’s submission this making it unlikely that Mr Palmer would not have seen the appellant’s vehicle if it had been there (2/06/21; T 1767.17-22). The Crown notes that the appellant told police in his second police interview (31 October 2014) that when he got to Mr Cunneen’s house that day, after dropping the deceased at Mr Easton’s residence, he parked “in [Mr Cunneen’s] front yard” being where he usually parked (Ex ZZZ, 82).

The Crown says that there was no doubt that the appellant had been at Mr Cunneen’s property at 2.02pm, having filmed himself inside the garage. As noted earlier, the Crown case was that the appellant departed shortly after that video was taken (and before Mr Palmer arrived) to meet up with the deceased.

The Crown also points to evidence (in addition to Mr Easton’s evidence) of a number of other witnesses that supported the existence of a pre-arrangement or plan by the appellant to meet up with the deceased at McDonald’s.

First, that of Nicole Finch, a friend of the deceased’s, who said that she spoke to the appellant after seeing a missing person page on Facebook about the deceased and that he told her that he had “dropped her off at her daughter’s place and she was supposed to meet him at Macca’s at 2 o’clock and she didn’t show” (7/05/21; T 1079.23-24). Ms Finch said that she asked the appellant why he would not have picked her up from the same place he dropped her off and the appellant answered “Oh, I don’t know, that’s what Carly wanted” (7/05/21; T 1080.32). In cross-examination, Ms Finch said she was absolutely clear about what the appellant said (though when pressed on a different version she said “anything’s possible”) (7/05/21; T 1083.25-38).

Second, that of the deceased’s mother, Lorraine Williams, who said that her ex-husband Steven McBride telephoned her at about 9.45pm on 30 September 2014 and told her that the deceased was missing; that he gave her the appellant’s number and that she telephoned the appellant and left him a message to call (21/04/21; T 296.22-287.10). Ms Williams said that when the appellant called her (within a minute), the appellant said “Carly’s gone, Carly’s gone. She has got no money…I was supposed to pick her up at McDonald’s, she never got there” (21/04/21; T 297.20-26).

Third, that of Vivian Hazelton, who worked at the Railway Hotel in Muswellbrook. Ms Hazelton gave evidence that at around 5.50pm on a Tuesday a man attended the venue in an agitated state saying he was looking for his girlfriend. Her evidence was that he showed her a photo of a female on the screen of his phone, asked Ms Hazelton if she had seen her and said “I was meant to pick up my fiancée at McDonald’s at 4pm and she wasn’t there” (29/04/21; T 717.19-20).

Fourth, that of Sandra Small, who said that the appellant telephoned her the day after the deceased went missing and “said something about she went to see her kids and he was meant to meet up with her and she didn’t come back” (6/05/21; T 1006.2-3).

The Crown points out that, in his first police interview (3 October 2014), the appellant appeared to confirm Mr Easton’s version that the deceased said that she planned to meet the appellant at McDonald’s, before correcting himself (Ex WWW, 20, 33):

The Crown says that Mr Palmer’s evidence was capable of establishing that the appellant left Mr Cunneen’s property shortly after 2pm and had the opportunity to meet up with the deceased; and that the above evidence provided additional support for a finding that the appellant did so. It is noted that CCTV footage at McDonald’s Muswellbrook did not show the deceased, indicating that she did not reach that location after leaving Mr Easton’s house (4/05/21; T 868.38-40). The Crown submitted to the jury that the absence of evidence of any screaming, struggle or other commotion in an area with a lot of residences and a block of units was consistent with the deceased having been picked up by someone she knew when on her way on foot to McDonald’s (namely, the appellant) (2/06/21; T 1766.21-48).

As to the injuries inflicted, the Crown case was that the appellant had the means to inflict the injuries sustained and that the number of injuries and the force with which they were inflicted proved an intention to cause at least really serious bodily harm.

The Crown notes that a number of witnesses gave evidence of their observations of the appellant training at Dooralong Centre. First, Casey Kairos gave evidence that she met the appellant in the gym at Dooralong in September 2013 and that he told her he was a “fighter, a MMA fighter” (23/04/21; T 361.24-25); that she observed the appellant to be very good at kickboxing; and said the boxing bag in the gym was “quite large and would have a bend in the middle where he had kicked it” (23/04/21; T 362.1). Second, Ms Small gave evidence that the appellant would punch and kick the punching bag in the gym; that he told her he had done cage fighting and Muay Thai boxing; and that on one occasion she saw the punching bag snap and fall to the ground when the appellant was using it (6/05/21; T 1009.37-40). Third, Ms MacAlpine said she saw the appellant split a punching bag when he kicked it (13/05/21; T 1105.16). Fourth, Mr Stephen Morris gave evidence that he trained with Mr Cunneen and the appellant at Dooralong and that the appellant told them that he had fought professionally or semi-professionally in kickboxing, had some success and was good at it (25/05/21; T 1525.12-13).

It is noted that the appellant told police that he had been a Thai boxing instructor or coach for eight to ten years, that he had a background in Thai boxing and boxing going back to when he was 12 to 14 “doing like a karate type thing” and returned to it at the age of 24 or 25 and got “serious about it”; that he was an “extremist type” and did something “hundred percent and a hundred and fifty percent” if he did it; and that he fought professionally, with twenty fights and twenty wins and “trained with…the best in the country and, and world champions” (Ex ZZZ, 13-14).

As to the question of motive and jealousy in the lead up to the deceased’s disappearance, the Crown says that the evidence established a credible motive.

The Crown points in this regard to text messages sent by the appellant to the deceased in August 2014 that the Crown says showed the appellant’s aggression towards her, noting that the last text message in evidence was on 1 September 2014, consisting of the appellant telling the deceased at 2.55am to “open your legs and shut your neck” (Ex HHHH, 3).

The Crown also notes that the appellant told police in his first interview that when he went to Mr Cunneen’s house, he:

The Crown alleged that the appellant likely became aware that the deceased had spent time alone with Mr Easton and had not in fact seen her daughter, and that this followed the sequence of events over the previous four days (leading up to the deletion of the Facebook account) that the Crown says had excited his jealousy. The Crown notes that Ms MacAlpine gave evidence that the appellant mentioned to her that on the day he dropped the deceased off (when the deceased disappeared) the little girl did not come to the door and wave like normal (13/05/21; T 1107.20-23); and that, in an intercepted telephone call on 3 November 2014 the appellant told Mr McBride and Ms Smith that the deceased’s daughter was not at the door on the day he dropped the deceased off (Ex RRR).

As to the appellant’s actions on the afternoon of disappearance, the Crown notes that the appellant told police that he spent the whole afternoon with Mr Cunneen (Ex WWW, 18); that the deceased did not try to call but he may have tried to call her, though he could not recall as he did not like to intervene (Ex WWW, 29); and that he and Mr Cunneen went driving from Mr Cunneen’s house on the “back roads” to a McDonald’s in another town (Ex WWW, 26). The Crown also notes that the appellant used the deceased’s bank card at McDonald’s in Scone at 4.40pm, Scone McDonald’s being only 17 kilometres drive from Owens Gap (28/05/21; T 1615.21-29).

The Crown points to inconsistencies in the appellant’s account of when he became worried about the deceased’s whereabouts; and says that significant doubt was cast on his account to police that he was worried at all. Relevantly, in this regard, the Crown refers to the following.

Senior Constable Tegan Baker, who took the appellant’s initial report, said the appellant told her he started to be worried at “maybe 5pm, ‘cause she normally messages me throughout the day” (28/04/21; T 602.22-24). The first message sent to the deceased by the appellant that day was at 5.45pm when he used Mr Cunneen’s phone to send a text “Hey how are you guys travelling. I’m not hurrying yu along ‘coz we can stay all night” (Ex JJJ, 3).

In his first police interview, when asked when he first started to get concerned, the appellant said that it was when he went to Mr Easton’s address (which Mr Easton said was at 6, 6.30 when it was “darkish”) (29/04/21; T 693.47) and was told that the deceased had left at 2pm (Ex WWW, 24).

The appellant also told police that generally in the time the deceased was at Mr Easton’s he would have “heard from her four times…Four text messages and one phone call generally” but there was no evidence that the appellant had made any attempt to contact the deceased prior to his message at 5.45pm (Ex WWW, 17). It is noted that this was despite him telling police that he was “fucken chewing [his] lip the whole time” the deceased was at Easton’s address thinking “why hasn’t she rung me?” (Ex WWW, 24).

The Crown led evidence suggesting the appellant took steps towards locating the deceased before being told by Mr Easton that she had left his house. First, there was evidence that the appellant edited photographs of the deceased at 5.17pm. These were saved on a SD card seized from the appellant’s vehicle when it was searched on 10 November 2014 (13/05/21; T 1146.5-10). A digital forensics expert from the NSW Police gave evidence that the SD card had been connected to a Samsung phone (19/05/21; T 1320.35-38). The Crown notes that there was no dispute that the appellant was using that phone as at 30 September 2014. The expert gave evidence that data on two image files (Ex LLL) he identified on the SD card established that the first, a photograph of the deceased in a car, was taken on 30 September at 12.02pm, and that the second was a version of the photograph which had been cropped in some way, that file being created at 5.17pm (19/05/21; T 1321.41-1322.27). The expert gave the same evidence in relation to two further files (Ex MMM), namely that that they were respectively a photograph taken of the deceased at 12.01pm which was edited at 5.17pm (19/05/21; T 1324.8-10). In both images, the deceased was holding a “V”-brand drink. The Crown says that this, and the evidence that the deceased was at Mr Easton’s address by 1pm, indicated that the timestamps were accurate.

The Crown also relied on two further files (Ex NNN) showing the steering wheel of an Audi vehicle, timestamped as having been created between 8.21am and 8.22am on 2 October 2014 to establish the accuracy of the timestamps. The Crown notes that on 2 October 2014 the appellant had been in Sydney “driving an R-8 Audi worth four hundred grand” (Ex WWW, 63); and that the appellant had sent messages to Mr Cunneen and Ms Williamson at 6.58am on 2 October 2014 about the Audi R8 (Ex KKKK, 4).

Second, the Crown notes that the appellant sent the cropped image of the deceased to Mr Cunneen on the morning of 1 October 2014 asking him to post it to Facebook (Ex KKKK, 3); and that one of the images was also used in a missing persons poster (Ex LLLL). The Crown says that this evidence strongly suggested that the appellant had realised the need for a photograph of the deceased well before he attended Mr Easton’s address on 30 September 2014 (at around 6pm).

Third, as noted earlier, Ms Hazelton, who worked at the Railway Hotel in Muswellbrook, gave evidence that at around 5.50pm a man attended the venue searching for a female whose photo he showed her (29/04/21; 715.7-716.39). Ms Hazelton said she was sure of the time because “Who Wants to be a Millionaire” was on the television, and it was still light outside (29/04/21; T 714.37-715.5; T 717.29-30). There was evidence in the trial as to the time of that television show and that sunset was at 5.57pm on 30 September 2014 (Ex KK) (5/05/21; T 938.16-25).

Further, the Crown notes that on 2 October 2014, the appellant was “in a rage” at the police station, telling them to look at the park between Wollombi Road and Skellatar Stock Route and said police “would be looking for her dead body” (Ex Z); and that the appellant told Mr Easton on 1 October 2014 that the deceased was “probably dead in a ditch somewhere” (29/04/21; T 701.40). The Crown says that it was open to infer that such statements were an overreaction unless the appellant knew for certain that the deceased was dead.

Similarly, the Crown says that the appellant’s conduct towards other women following the deceased’s disappearance, including his statement on 6 October that he was “single” (Ex JJJJ), were consistent with him having the knowledge that the deceased was dead.

As to the telephone intercept material and finding of the deceased’s body, the Crown says that there was incriminating evidence in lawfully intercepted telephone calls and a covertly recorded conversation. The Crown says that the 20 November 2014 conversation between the appellant and Mr McBride, in which the appellant referred to the last three people who had seen the deceased being Mr Easton, himself and Jimmy (see [61] above), is significant because, on the appellant’s version of events, Mr Cunneen had not seen the deceased on 30 September 2014. The Crown relied on this call, and the pause before the appellant mentioned Jimmy, as the appellant having made a slip that Mr Cunneen had seen the deceased that day (2/06/21; T 1801.15-19).

As to the evidence relating to the finding of the deceased’s body, Detective Inspector Wright, the officer-in-charge of the investigation, gave evidence that although the deceased’s remains were located on 7 August 2016 no announcement was made until 11 August 2016: first, because the remains had not been formally identified; and, second, in order to implement investigative strategies including telephone intercepts (20/04/21; T 260-261).

By 9 August 2016, the police had cleared the Owens Gap location where the remains were located. On 11 August 2016, police established a fake crime scene on the opposite side of the road, some distance away. This involved taping an area and a plain clothes officer being present at the scene with a clipboard. No “props” or bones were used (20/04/21; T 264.4-8). On the same date police announced in a press conference that the deceased’s remains had been located in an area off or near Bunnan Road (20/04/21; T 261.39-48), and referred to a “tip off” (3/06/21; T 1822.1-2). The location of the real crime scene was not disclosed to the public in any way. On 25 October 2016 the deceased’s parents were shown the true location but told not to disclose it (21/04/21; T 271/50-272.2). Police also did not disclose any details about how the body was found, including that the hand bones were missing (21/04/21; T 272.28-30). This was known to the deceased’s parents from 31 August 2016 when they were taken to view the deceased’s remains in hospital. Both Ms Williams and Mr McBride gave evidence that they did not tell anyone about the deceased’s missing hands or the actual crime scene (21/04/21; T 310-311).

The Crown notes that, in an intercepted call on 11 August 2016, the appellant was told that the police were saying they had received a “tip off” about the body from someone known to the deceased; and that the appellant responded “James Cunneen” (which the Crown says suggests that Mr Cunneen had some knowledge of the murder) (Ex VVV).

On 26 August 2016, a few days before the deceased’s funeral, the appellant asked Mr McBride if it was okay for him to attend. In that conversation, the appellant said he “had heard someone had Carly’s hand” and asked if that meant anything to him (25/05/21; T 1488.9-25). Mr McBride later asked where he had heard this and the appellant said he could not speak about it over the phone; and wanted to meet to discuss it further. On 8 June 2017, Mr McBride visited the appellant wearing a listening device pursuant to a police operation. The appellant was recorded telling Mr McBride “I know exactly where it is” (referring to the crime scene), “the exact spot” and admitted that he had “hunted that area” and “knew that area like the back of my hand” but would not admit that to anyone else because it sounded incriminating (Ex RRR). The Crown says that this was in contrast to the appellant’s earlier statement to Mr Cunneen in a call on 16 August 2016 that he did not know where Bunnan Road was (Ex RRR). In the recorded conversation, Mr McBride referred to the appellant having told him that “someone had her hand” and the appellant said:

When Mr McBride queried if these were “the guys who told you about the hand”, the appellant agreed and said:

Both Stephen Morris and Clayton Morris gave evidence. Each denied any conversation with the appellant about the deceased’s hand, or that the appellant had ever physically assaulted them (25/05/21; T 1527.14-19; 31/05/21; T 1703.37-49). The Crown relied on this as a lie by the appellant designed to distance himself from the original conversation about the deceased’s hand being missing.

The Crown also led evidence that location data for the period 18 September 2014 to 2 October 2014 was missing from the appellant’s Samsung phone, detected upon examination of it by police. A police witness gave evidence that the appellant’s Google account had been accessed at 11.28am on 3 October 2014; and that the user had accessed a “manage history” page where a user could manage the user’s location history by pausing it or deleting the whole history or parts of it (20/05/21; T 1351-1352). The Crown submission to the jury in closing was that the block of location data was deleted, and pointed to the coincidence of timing with the appellant’s first police interview (3/06/21; T 1815.23-33), as well as evidence that in an intercepted call with Chad Mackaway (Ms Smith’s partner) the appellant had referred to changing something on his computer to “hide from the coppers” (Ex VVV).

The Crown argues that none of the (eleven) issues raised by the appellant in his written submissions at [80] (set out at [224]-[234] above) leads to the conclusion that the jury’s verdict was not open viewed in light of the totality of the evidence. As to those matters, the Crown says as follows.

First, insofar as the appellant points to the absence of evidence that two items found at Owens Gap (a cup and a cigarette lighter) were tested for DNA, the Crown says that neither piece of evidence was as significant as is suggested. It is noted that the cigarette lighter was found in the pocket of the deceased’s jeans, giving rise the Crown says to a reasonable inference that it belonged to her; and that the cup was located with a single bone separate to the rest of the skeleton. Dr McCardle gave evidence that there was a pattern of long bones placed away from the main area of remains, consistent with animal scavenging by, for example, wild dogs who would drag such bones away (19/04/21; T 165.9-21). The Crown says that there was no basis to infer that the cup was left by the assailant.

Second, insofar as the appellant points to evidence suggesting that the deceased “could engage in conduct that was inherently risky”, the Crown says that, against this, there was a body of evidence establishing that the deceased did not like to be left alone. Ms Williams gave evidence that her daughter was “co-dependent” and always had somebody with her, not going anywhere by herself (21/04/21; T 311.35-37). Mr McBride gave evidence that his daughter could not be alone, that it was common for her to want someone to even walk with her to the toilet within the home, and that she was “not the type to suddenly go off on her own”, saying that it was typical for her to call the moment she was alone (20/05/21; 1370.5-7). Ms Smith gave evidence that it was unlike the deceased not to respond to calls or messages, and that the deceased would “have to have [her phone] surgically removed from her hand” (27/04/21; T 515.14), which the Crown argues tends against a voluntary disappearance in the context of risky behaviour or otherwise.

Third, insofar as the appellant submits that Mr Palmer accepted in cross-examination that there was a “possibility” that he could have attended Mr Cunneen’s address on another date; the Crown says that Mr Palmer was clear in his evidence in chief (which was primarily a repetition of his earlier police statements) that it was 30 September 2014; noting that this was consistent with phone records showing a call and a text message from him to Mr Cunneen on that date at 2.13pm. Mr Palmer recalled the call not being answered and the reason for his visit (to pick something up that he had lent Mr Cunneen) (27/04/21; T 569.30-31). Mr Palmer’s evidence that “not even Dallas’s [car]” was at Mr Cunneen’s home was consistent with evidence from Dallas Cunneen that he was at work that day (27/04/21; T 571.18).

Fourth, insofar as the appellant refers to evidence of Sergeant Norris that, when he attended Mr Easton’s address at 9.55pm on 30 September 2014 (following the appellant reporting the deceased missing to police), Mr Easton asked if they could speak outside as his daughter was asleep, the Crown says that that request is not suspicious given the time of night. The Crown also notes that on 2 October 2014 Mr Easton invited police into his home following a break and enter; and asked police to search the entirety of his property, including the garage (29/04/21; T 709.41-47).

Fifth, insofar as the appellant refers to Mr Easton’s movements on 1 October 2014 as being out of the ordinary, and his statement to police that he was “cleaning” that morning when [his daughter] woke up, the Crown notes that Mr Easton’s evidence was corroborated by a witness, Ms Sullivan, who said that she spoke to him at the daycare centre between around 11.30am and midday on 1 October 2014 and that he mentioned that the daughter had had a bad night’s sleep (4/05/21; T 858.15-22). The Crown’s submission to the jury in closing was that this was a plausible reason for their routine to be disrupted (2/06/21; T 1765.24-32).

Sixth, insofar as the appellant refers to evidence that there was a “strong smell of chemical/deodoriser” noted by CSO Gruber on 23 October 2014 at Mr Easton’s address, the Crown points out that this was in contrast to evidence of an officer who attended on 2 October 2014 (in response to the break and enter) who said that he walked through the property, checked the bedrooms and garage and searched the garage, and that he did not notice anything untoward or any strange smells (5/05/21; T 925.7-8). CSO Gruber gave evidence that there was a can of carpet sanitiser and deodoriser in the living room and evidence of cats in the premises (13/05/21; T 1157.10-19) (which the Crown says suggests the sanitiser may have been used to clean up after cats). It is also noted that the same officer gave evidence of an extensive luminol examination conducted at Mr Easton’s home; that they “sprayed walls, floors, furnishings, anywhere that we could get to” (13/05/21; T 1158.42-43); that the luminol testing was “extremely sensitive” with a detectable limit of blood using luminol being one part in 1 million or “very small” (13/05/21; T 1159.37-44); and that, while there were some areas of the home that reacted when luminol was used, in each case the presence of human blood, or blood above the detectable limits was excluded by further testing (13/05/21; T 1161-1170). The witness gave evidence that luminol would still detect blood where bleach or cleaning fluids had been used or where clothes had been washed in a washing machine (18/05/21; T 1208.18-26). The Crown says that this makes it unlikely that Mr Easton could have successfully disguised the presence of blood if the murder was as bloody as the appellant contends.

Seventh, insofar as the appellant points to the absence of forensic evidence linking the appellant to the deceased’s death and evidence of Professor Duflou that the head injuries would be suspected to result in “torrential bleeding” (from the nose and mouth); and that Dr Clifton said that “typically any scalp or facial injury bleeds a lot” and that there would be significant bleeding caused by the injuries, the Crown notes that Professor Duflou accepted in cross-examination that there was nothing forensically available about the skeletal remains to be certain that there was “torrential” bleeding and that there may not have been (31/05/21; T 1754.9-10).

Insofar as the appellant refers to the lack of forensic evidence, the Crown accepts that, ultimately, there was no forensic evidence linking anyone to the crime. However, the Crown notes that Emily Thomas, a friend of Mr Cunneen, gave evidence that she met the appellant in October 2014 and that, in the course of giving a version that was “all over the shop”, he told her that on the day the deceased disappeared he and the deceased had “rough sex” on the way to Muswellbrook and that there was a lot of blood in his car from this (6/05/21; T 999.31-48). It is noted that the appellant contacted Robert Etheredge on 1 October 2014 at 1.56pm; and that Mr Etheredge’s business did car and boat upholstery, including providing carpets and interiors for boots of cars (13/05/21; T 1121.5-13). Mr Etheredge gave evidence denying ever doing work for the appellant (who had stayed with him five to six months before the deceased went missing) but gave evidence that changing the boot lining of a Commodore was not a complex operation and that owners could buy “clippings” and install them themselves (13/05/21; T 1121.15-36). A business card for Mr Etheredge’s business was located in the appellant’s vehicle when it was searched on 10 November 2014 (13/05/21; T 1146.37-39).

Finally, insofar as the appellant refers to evidence that there were stains and a piece of wood in the tray of Mr Easton’s utility which were not tested for DNA, the Crown notes that CSO Gruber gave evidence that everything in the tray of the vehicle was examined for blood using luminol. This produced areas of fluorescence on two spots on the tray and a plank of timber, each of which returned a negative result for the presence of blood on further testing (13/05/21; T 1174-1178). The same applied to other areas of brown coloured staining (13/05/21; T 1180-1181). The Crown says that the suggestion that there may have been DNA somewhere in Mr Easton’s boot is speculative. The Crown says that the failure of police to test for that is of little moment given the strength of the case against the appellant and the absence of any blood. The Crown submitted in closing that it was implausible that Mr Easton would not have disposed of the plank of wood in his boot if it was in any way implicated in the murder, noting the passage of time before the vehicle was searched (2/06/21; T 1764.49).

The Crown emphasises that the jury had the advantage of seeing Mr Easton give evidence and the opportunity to assess his credibility in the witness box. The Crown says that Mr Easton’s denial of any ill-will between himself and the deceased was well supported by the objective evidence; and that there was significant evidence suggesting that the deceased and Mr Easton were on good terms. Richard Clarke, a former boyfriend of the deceased’s, gave evidence that at the time of their relationship in late 2013 the deceased was “proud” of the way Mr Easton was raising their daughter and “was very grateful to have him...looking after her, being a father”; and he said that the deceased was “actually like, really happy...She wouldn’t stop talking about it” (23/04/21; T 348.19-26). The Crown says that text messages tendered between Mr Easton and the deceased were highly probative of their amicable relationship (and in stark contrast to the appellant’s own messages with the deceased). By way of example, the Crown notes that on 23 August 2014 the deceased wrote to Mr Easton (Ex Y, 2):

The Crown notes that the jury was directed in clear terms that if the jury suspected Mr Easton they could not convict the appellant. The Crown says that it was open to the jury to reject Mr Easton’s involvement as an alternative hypothesis having regard to all of the evidence; and notes that there were no other viable hypotheses suggested during the trial.

It is thus submitted that, in all of the circumstances (and in light of the arguments in relation to ground 5), on an independent assessment of the whole of the evidence, it was well open to the jury to be satisfied on the evidence properly admitted at trial of the appellant’s guilt beyond reasonable doubt.

I have approached the task required by this unreasonable verdict ground acutely conscious of the requirement that this Court must make its own independent review of the evidence and that the question is whether upon the whole of that evidence it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt (framed in other words, as to whether the jury “must” have experienced a reasonable doubt) (see M v The Queen, SKA, Dansie, Libke and Pell in this regard).

I have also noted that the jury is the constitutional tribunal for deciding issues of fact, and the setting aside of a verdict is a serious step, not to be taken without particular regard to the advantage of seeing and hearing the witnesses called at trial (see Baden-Clay at [65]; and what was said in Dansie as to the jury’s role).

I have reviewed the evidence at trial and, having taken into account the matters raised by the appellant in support of his contrary contention and the Crown’s submissions, I am satisfied beyond reasonable doubt as to the appellant’s guilt (and that Mr Easton was excluded as a viable alternative).

I have referred to the main aspects of the evidence above. Relevantly, the evidence establishes that the deceased’s mobile phone (which has never been found) did not leave Muswellbrook during the afternoon of 30 September 2014 (since it “pinged” off the telephone tower in Muswellbrook until the battery went flat at about 7.30am the following morning). This, coupled with the fact that the deceased’s remains were found wearing the same clothes as those in which she was last seen, compels the conclusion beyond reasonable doubt that the deceased was killed in Muswellbrook (and her body disposed of at Owens Gap).

There is a lack of any forensic evidence that the deceased was killed at Mr Easton’s house and evidence from various people other than Mr Easton as to statements made by the appellant that the arrangement was for him to pick the deceased up at the McDonald’s in Muswellbrook. The CCTV footage shows that the deceased did not arrive at that venue after her visit to Mr Easton’s house.

The fact that there was no altercation observed in the township of Muswellbrook at the time that (on the Crown’s case) the deceased must have been intercepted (after leaving Mr Easton’s house) strongly points to the deceased having known the person who intercepted her or picked her up. As noted, the evidence to which the Crown has referred indicates that the appellant’s account to various persons was that the appellant was to pick Ms Easton up at the McDonald’s in Muswellbrook, which makes the most likely explanation for her disappearance being that she was intercepted on the way to McDonald’s.

The evidence establishes that the appellant had the opportunity to do so – as he was filmed at Mr Cunneen’s house in the garage at 2.02pm but was not observed there by Mr Palmer, who arrived there shortly after 2.13 pm and stayed there for about ten minutes.

The fact that the deceased’s remains were found at Owens Gap, in an area that the appellant later admitted knowing like the back of his hand and where he said he had hunted, and that the appellant and Mr Cunneen had been driving in that area on back roads (otherwise seemingly aimlessly) during the afternoon of 30 September 2014 strongly points to the conclusion that the appellant intercepted the deceased, killed her and then dumped her body at Owens Gap during the afternoon and before he attended McDonald’s at Scone at around 4.40pm. There was sufficient time for that to occur before the appellant returned to Mr Cunneen’s house (particularly given the fact that there was no attempt to bury the deceased’s body – she was simply dumped in the bush off the side of the road).

Significant, in my opinion, is the lack of any contact or attempted contact by the appellant with the deceased during the afternoon of 30 September 2014 and the patent insincerity of the text message at 5.45pm suggesting he was comfortable if the deceased stayed at Mr Easton’s house longer (when contrasted with the earlier text messages, evidence of the appellant’s tendency to be jealous of other men, and his own statement to the police that he was chewing his lip all afternoon about the lack of contact from the deceased). Even more significant in that context is that the text message was sent at 5.45pm that day – after the appellant had already downloaded (at 5.17pm) a photograph of the deceased that was later used for the missing person’s photo and Facebook entries and just before the appellant went to the pub at 5.50pm about his missing fiancée (see Ms Hazelton’s evidence). This was all before the appellant had even gone to Mr Easton’s house at 6.30pm to see if she was still there.

The evidence as to the appellant’s sexual activities with other women in the hours and days after the deceased’s disappearance is of less weight in my opinion than the fact that the appellant was seemingly quick to tell people that the deceased was “gone” and that he was “single”. The appellant’s statements to the police on 1 October 2014 that they were probably looking for a dead body and to Mr Easton that same day that the deceased was probably lying dead in a ditch somewhere also (in hindsight) suggest familiarity with what was later found to have happened.

I also note that there is a reasonable basis for suspecting that the appellant had re-visited the disposal scene at some time before the funeral in 2016; since the appellant appears to have known about the missing hand (and his explanation for that knowledge is both implausible and denied by the Morris brothers).

Those matters, coupled with the appellant’s undoubted tendency to jealousy and aggression (particularly when under the influence of illicit drugs as he was on 30 September 2014 by his own account), and his martial arts training and physical superiority compared to the deceased, strongly reinforce the conclusion that the appellant inflicted the significant injuries on the deceased. The appellant must have done so with the intent to kill her or to cause serious harm. He cannot possibly have been unaware that the force of the separate blows that caused such significant injury as was found to have been occasioned would have resulted in at least serious bodily injury if not death.

Insofar as this was a circumstantial case and the Crown was required to exclude beyond reasonable doubt any reasonable alternative hypothesis consistent with the appellant’s innocence, in the present case the only reasonable alternative hypothesis put forward was that Mr Easton was responsible in some way for the deceased’s death. That hypothesis to my mind has been excluded beyond reasonable doubt, given the lack of any inculpatory evidence as to the deceased’s death occurring at the house itself or in his car, the lack of any compelling motive on his part to murder someone with whom by all accounts he had an amicable relationship, and the fact that the jury (which was in the best position to assess his credit as a witness) must have accepted his account of events in order to reach their verdict of guilty. Any suggestion that the deceased was killed by an unknown person during a drug deal is entirely speculative.

The “evidentiary circumstances” on which the appellant relies are comprehensively answered by the Crown’s response and do not raise in my mind any reasonable doubt as to the appellant’s guilt; nor must the jury have experienced such doubt.

The evidence does not to my mind contain discrepancies (other than those that point against the appellant’s innocence) nor does it display inadequacies, nor is it tainted or otherwise lacking in probative force, such as would lead to a conclusion that (even making full allowance for the advantages enjoyed by the jury) there is a significant possibility that an innocent person has been convicted (to paraphrase M v The Queen, as emphasised in Dansie).

In all the circumstances, I am left with no reasonable doubt as to the appellant’s guilt. Ground 5 should therefore be dismissed.

Accordingly, the conviction appeal should be dismissed.

In sentencing proceedings, the Crown tendered a document entitled “Summary of Factual Findings” which became Ex 3 in sentence proceedings. In that document (see p 3) the Crown stated that “The location, and number of fractures caused by at least 2 significant blows to the head, and at least one substantial blow to the upper back of the deceased, reflect an intention to inflict grievous bodily harm and the Crown presented its case in that way”. The appellant notes that the Crown Prosecutor submitted at the sentence hearing the Court could not be satisfied the appellant’s intention was to kill (i.e., as opposed to inflict grievous bodily harm) (20/09/21; T 16.9-14).

In his remarks on sentence, the sentencing judge at [14] referred to the need to make findings on motive and intention in circumstances where those matters were not implicitly disclosed by the jury’s verdict, and the need for those findings to be consistent with the jury’s verdict, citing R v Isaacs (1997) 41 NSWLR 374 (R v Isaacs) at 374 (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ). His Honour acknowledged that aggravating circumstances are required to be established beyond reasonable doubt, and that mitigating circumstances could be established on the balance of probabilities, citing R v Pilley (1991) 56 A Crim R 202 at 204 (Findlay J, Handley JA and Allen J agreeing).

His Honour was satisfied beyond reasonable doubt that the appellant’s attack upon the deceased was motivated by jealousy (at [27]). His Honour concluded that it was likely that the appellant became aware, when he collected the deceased, that she had spent an hour alone with Mr Easton and had not seen her daughter. His Honour said that this “came after a sequence of events over the previous four days that had excited his jealousy” and culminated in the appellant striking the deceased in a jealous rage (at [27]).

His Honour referred to evidence that in the first police interview the appellant had “portrayed the state of his relationship with the deceased in idealistic terms as being loving, caring and respectful” which was inconsistent with other evidence, including the text (SMS) messages he sent to her on 30-31 August 2014; Ms Drinkwater’s evidence that the deceased told her on 26 September 2014 that she was fighting with the appellant and did not know where he was; and the evidence that the deceased had spent the evening with Mr Bower on 26 September 2014 (at [17]-[18]). The sentencing judge also referred to the body of evidence relating to the deletion of the deceased’s Facebook account the day before her disappearance, including the appellant’s statements in the first police interview that he was “really fucking angry” about men contacting the deceased and had told her to “put a stop to this right now” (at [19]); statements in the first police interview consistent with the appellant “express[ing] difficulty coping with thoughts of jealousy when the deceased was with Mr Easton that day” (at [21]), and thoughts of violence towards Mr Easton (such as “I just wanted to front kick him. I just wanted to front kick through the front door and just, I wanted, I want to bash him to death. I really want to bash him to death”) (at [22]). His Honour also referred to the evidence that the appellant was affected by ice on the day of the offence and in the days leading up to the offence (at [25]).

In relation to the appellant’s intent at the time of the killing, his Honour said that, in the absence of admissions, the only evidence of intent was the expert evidence concerning the cause and manner (mechanics) of the deceased’s death (at [20]). His Honour summarised in detail the evidence of each expert on the number of impacts to the deceased required to cause the fractures sustained (at [29]-[43]), noting that the uncontested evidence was that the cause of death was a high degree of blunt force to the deceased’s head, causing severe trauma to the brain (at [46]).

His Honour concluded that the appellant inflicted at least one blow to the deceased’s head and one blow to her back (at [48]), noting that if it was one blow to the head (rather than two or more blows), it was delivered while the deceased’s head was on, or in close proximity to, a hard surface and with such force that it caused her skull to be extensively fractured on opposite sides from the one blow (at [49]). His Honour noted that if there was one blow to her back (rather than two or more) it was with an implement that was sufficiently long and applied with such force to fracture both scapulae, the adjacent vertebrae and two of her ribs (at [50]). His Honour was satisfied the injuries were caused by the appellant’s use of his fists and/or feet and/or by the use of an object or objects, or by a combination of those means (at [47]).

His Honour was satisfied beyond reasonable doubt that the appellant intended to kill the deceased when he injured her (at [51], [53]). In reaching that conclusion, his Honour referred to: the deceased’s height (between 166 and 174cm tall) and her weight (under 50 kilograms, to the knowledge of the appellant); the appellant’s awareness of his physical capacity to cause injury, in circumstances where he had previously fought professionally with considerable success as a martial arts fighter and was still working out a year before at Dooralong; the “extreme” nature of the injuries, which his Honour considered bespoke “an attack of unrestrained brutality”; and said that “it was inconceivable that the appellant could have hit the deceased’s head with the requisite force to cause the fractures without him being aware of the inevitable consequence of doing so” (at [52]-[53]).

His Honour found that the offence fell slightly above the mid-range in objective seriousness, referring to the following matters (at [55]-[57]): that the offence involved an intention to kill; that the killing was in the context of a domestic violence relationship; and that the appellant had used methylamphetamine on the day of the killing.

His Honour noted the need for general deterrence in the context of domestic violence, citing Cherry v R [2017] NSWCCA 150 (Cherry) at [78]-[79] (Johnson J, Macfarlan JA and Harrison J, as his Honour then was, agreeing).

His Honour found that the appellant used a weapon in the commission of the offence (namely, his body) but said that in the context of the offence of murder there was less significance to be attached to this (at [58]). His Honour said that the offence was aggravated by the appellant being on conditional liberty at the time of the offence and by the circumstances of the dumping of the deceased’s body, which his Honour said demonstrated the appellant’s callousness to the deceased’s dignity and his indifference to the suffering of her family (at [60]-[61]). His Honour said that a mitigating factor was that the offence was unplanned, but that there was no question of remorse given that the appellant maintained his innocence (at [63]).

His Honour was satisfied on balance that the appellant had been repeatedly sexually assaulted by an adult male when the appellant was 12 years old and accepted the opinion of the psychiatrist (Dr Richard Furst) that there was a connection between the appellant’s experience of childhood sexual abuse and his issues of jealousy and anger which motivated the appellant to commit the index offence (at [77]). Accordingly, his Honour found that the appellant’s moral culpability was reduced (at [81]).

His Honour said that the evidence did not permit a finding that the appellant had a background of deprivation such as to merit a diminution of his moral culpability in accordance with the principles approved in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [40] (French CJ, Jayne, Crennan, Kiefel, Bell and Keane JJ) (at [83]). However, his Honour noted that he had already found the appellant's moral culpability to be reduced due to the appellant's experience of childhood sexual abuse (at [85]). His Honour said that the appellant’s prospects of rehabilitation were guarded (at [86]).

At [87], his Honour said that:

His Honour determined that a discount of 7% was appropriate to reflect the appellant’s facilitation of the administration of justice during the trial (at [89]). His Honour indicated that he was not imposing the standard non-parole period having regard to the appellant’s moral culpability (at [57]). His Honour said, in considering whether there were “special circumstances”, that the sentence ought incorporate a significant period of parole to facilitate supervision, having regard to the appellant’s “entrenched abuse of prohibited drugs and the need for therapy” with respect to his childhood sexual abuse (at [89]). His Honour noted that the normal ratio would ensure there was a sufficient period on parole but said that he had nonetheless slightly adjusted it (to 73%) for reasons of totality (at [90]).

His Honour commenced the sentence for the index offence on 29 November 2018, such that there was accumulation as to 18 months with a sentence imposed for a prior offence of destruction of property by fire.

The appellant notes that, in his closing address to the jury the Crown Prosecutor stated, in relation to intent, the Crown case was that jurors would be able to infer that the appellant “at least” intended to inflict really serious bodily harm but that the sentencing judge found an intention to kill (2/06/21; T 1768.5-6).

The appellant says that his Honour was required to exercise the sentencing discretion as to what sentence should be imposed upon the appellant by applying well-identified principles of law to the facts which he was required to find, citing the summary of principles set out in R v MacDonell (NSWCCA, 8 December 1995, unreported) per Hunt CJ at CL at [1]-[2], and emphasising that:

The appellant says that, while it was no part of his Honour’s function to attempt to discern the basis upon which the jury reached their verdict, he was obliged to make findings of fact consistent with the jury’s verdict and how the Crown had conducted its case. It is noted that his Honour acknowledged R v Isaacs at [14] of the remarks on sentence.

The appellant says that the determination as to intent was confined to the expert evidence concerning the cause and manner (the mechanics) of the deceased’s death; and the appellant argues that there was not unanimity in the expert evidence in relation to how many impacts must have been engaged in to determine. Noting that his Honour’s findings in relation to the mechanics of the deceased’s death in his sentencing remarks were that he was satisfied beyond reasonable doubt there was “at least one blow to the deceased’s head, and at least one separate blow to the deceased’s back” (at [48]), the appellant says that his Honour’s findings are consistent with an intention to cause really serious bodily injury.

The Crown submits that the sentencing judge’s finding that the appellant intended to kill the deceased was well supported by the evidence and was not made in error. The Crown submits that this finding is consistent with the jury’s verdict and the basis on which the mental element was left to the jury.

The Crown cavils with the proposition that it limited its case in closing submissions to the jury, to an intention to cause grievous bodily harm. The Crown says that at the trial the Crown alleged an intention to kill but in oral submissions in both opening and closing address put the submissions on the basis that the jury would be satisfied of at least an intention to cause grievous bodily harm (which the Crown submits accorded with the law as to the mental element required to establish murder). It is noted that the Crown submissions included the following.

In opening, the Crown described the offence of murder as involving voluntary acts causing death accompanied by “an intention to kill or an intention to inflict grievous bodily harm or, as his Honour mentioned, with reckless indifference to human life” (30/03/21; T 30.39-40). In closing address, the Crown said (2/06/21; T 1767.49-1768.6):

The Crown further submitted in closing at (3/06/21; T 1830.21-38) that:

It is noted that, in directing the jury at the end of the trial, the trial judge left, as the state of mind required to be proved by the Crown, an intention to kill or to cause grievous bodily harm. In the summing up, his Honour directed the jury as follows (7/06/21; SU 23-24):

The Crown also points out that (at SU 27), his Honour directed the jury that:

The Crown notes that, on sentence, the Crown submitted in its Summary of Factual Findings (Ex D) that “the location, and number of fractures caused by at least 2 significant blows to the head, and at least one substantial blow to the upper back of the deceased, reflect an intention to, at the very least, inflict grievous bodily harm”.

Accordingly, the Crown says that, in relation to the factual findings which the Crown contended were open to be made on sentence, the Crown did not limit its case to one based on an intent to cause grievous bodily harm. That said, the Crown acknowledges that in written submissions, the Crown submitted that “the Crown case was and remains that the offender struck the deceased with an intention to do really serious bodily harm” and that “any reduction in objective seriousness based on the offender’s intention at the relevant [sic] should be assessed as moderate at best” (Crown written submissions on sentence dated 10 September 2021). The Crown notes that in oral submissions, the Crown Prosecutor submitted that “the Crown accepts and went to the jury on the basis that [the appellant] had an intention to inflict grievous bodily harm as opposed to kill” (20/09/21; T 16.11-12). However, the Crown argues that that submission did not accord with the way the Crown put its case to the jury (which relied on an intention to kill, with the lesser state of mind being available as a minimum basis to satisfy the mens rea requirement).

The Crown disputes that it submitted on sentence (as stated in the remarks on sentence at [51]) that the Court could not be satisfied that the appellant’s intention at the time of the attack was to cause her death (although it accepts that the Crown made an oral submission which suggested that it had not gone to the jury on an intention to kill).

The Crown submits that, ultimately, the issue is whether the finding made by the sentencing judge that the appellant intended to kill the deceased was consistent with the jury’s verdict; and argues that this is the case, as both states of mind were properly left to the jury in summing up.

It is noted that, on sentence, the task was not to determine the basis on which the jury had found the appellant guilty of murder but, rather, to find facts material to sentencing, consistent with the jury’s verdict (Fuller v R [2022] NSWCCA 203 (Fuller) at [9] (Adamson J, as her Honour then was) citing R v Isaacs, to which his Honour referred). The Crown refers to what was said by Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) (at [5]):

The Crown also refers to what was said by Adamson J in Fuller at [7], citing R v Isaacs which followed Savvas v The Queen (1995) 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1995] HCA 29, namely that “sentencing judges are not required to sentence the offender on the basis of the view of the facts which is most favourable to the offender but must be satisfied of those matters which were to be taken into account adversely to the offender, beyond reasonable doubt”.

The Crown says that the present is not a case where the finding made on sentence as to the offender’s state of mind was inconsistent with the directions to the jury on that element, such as to give rise to error, as in Nguyen v The Queen [2016] NSWCCA 5; rather, in the present case, the trial judge directed the jury on an intention to kill.

The Crown accepts that it cannot be known whether the jury (or how many jurors) were satisfied that the appellant intended to kill or to cause grievous bodily harm; but says that there is no inconsistency between the verdict and a finding that the appellant had an intention to kill.

In that regard, the Crown submits that the nature of the deceased’s injuries is only truly consistent with an intention to kill. It is noted that the sentencing judge’s finding of an intent to kill was not based solely on the conclusion that there was “at least one blow to the deceased’s head and at least one separate blow to the deceased’s back”; rather, the finding was supported by other factors including the nature of the injuries, the method of infliction if there was one blow to the head and one to the back (see [49]-[50] of the remarks on sentence), the appellant’s capacity to inflict the injuries and his knowledge about his own capacity and the size of the deceased (and the additional evidence referred to at [52]-[53] of the remarks on sentence).

The Crown submits that the finding that the appellant had an intention to kill was arrived at after a careful consideration of the evidence, the basis for it was clearly articulated and it was made to the requisite standard.

The contention that the sentencing judge erred in concluding that the appellant had an intention to kill must be rejected. The evidence supported that conclusion and was open to his Honour. There was no error in that conclusion. The Crown had submitted to the jury that there was “at least” an intention to cause really serious bodily injury (which is sufficient for a murder conviction). The significant force exerted against the deceased is such that it cannot sensibly be consistent with the lack of an intention to cause at least serious bodily injury and, given that there must have been a minimum of two impacts (one to the head and one to the body) causing such severe injury it beggars belief that the appellant (with his considerable experience in martial arts) did not appreciate the likelihood that the blows would cause death (and hence have the necessary intent to kill the deceased).

The fact that the Crown made a somewhat different submission on sentencing did not preclude the sentencing judge making the eminently reasonable finding on all the evidence that the appellant had the intent to cause the deceased’s death. A sentencing court is not bound by the submissions of either party.

Ground 6 should be dismissed.

The appellant notes that the finding that the offence fell “slightly above the mid-range in objective seriousness” was made in circumstances where the submissions by both the Crown and defence were that the offending fell within the mid-range of objective seriousness ([55], [57] of the remarks on sentence).

The appellant accepts that (as stated in Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37] and Simpson J, as her Honour then was, at [46]), the characterisation of the degree of objective seriousness of an offence is “classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts” and that an appellate Court will be “very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion”, the relevant question being whether the particular characterisation given to the circumstances of the offence was open to the sentencing judge. It is also noted that, insofar as the assessment of the objective seriousness of an offence is the exercise of an evaluative process akin to fact finding or the exercise of a discretion, it is reviewable only on the principles stated in House v The King [1936] HCA 40 (House v The King) (i.e., it is necessary to show that the sentencing judge acted upon a wrong principle, or took into consideration extraneous or irrelevant matters, or misapprehended the facts or failed to take into account some material consideration, if the result is unreasonable or plainly unjust such that it may be inferred that in some way there has been a failure properly to exercise the discretion and that a substantial wrong has in fact occurred).

In the present case, the appellant points to the findings by his Honour that: the appellant inflicted at least one blow to the deceased’s head, and at least one separate blow to the deceased’s back (at [48]); the appellant’s ingestion of methylamphetamine was relevant to understanding the offence (at [56]); and the attack by the appellant was unplanned, in the sense he did not intend to attack the deceased before he met with her after she had left Mr Easton’s residence (at [62]).

The appellant notes that, at common law the degree of premeditation or planning has long been recognised as a factor in weighing the seriousness of an offence (R v Morabito (NSWCCA, 10 June 1992, unreported) at 86); and that it permits a court to treat the conduct as a more serious example of the offence charged than would otherwise be the case (whereas offences which are unplanned, impulsive, opportunistic and committed spontaneously are generally regarded as less serious than those that are planned – see R v Mobbs [2005] NSWCCA 371 at [50] (Johnson J, Simpson and Adams JJ agreeing)). The appellant also notes that, although intoxication is not a matter in mitigation, an offender’s intoxication may be an indication that the offence was impulsive and unplanned (referring to Waters v R [2007] NSWCCA 219 at [38] (James J, Giles JA and Hislop J agreeing) with reference to Wood CJ at CL in R v Henry (1999) 46 NSWLR 346 (R v Henry) at [273]; see LB v R [2011] NSWCCA 220 at [42] (Hoeben J at [3], Whealy JA and James J agreeing)).

Reference is made by the appellant to the observation in Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 by Basten JA to the effect that characterisation of an offence as “middle of the range” is often unhelpful, his Honour there saying at [88] (Price and S G Campbell JJ agreeing):

The appellant maintains that, accepting that the concept that a “mid-range offence” can cover anything from 25% to 75% of a most serious case, a finding that the index offence was more objectively serious, even slightly so, than mid-range was not a finding that was available on the evidence.

The appellant says that this is even more so given that his Honour found a causal connection between the child sexual abuse that the appellant had suffered and his issues of jealousy and anger which were the appellant’s motivation to commit the offence, with his moral culpability being reduced (remarks on sentence at [81]-[82]).

Reference is made to Tepania v R [2018] NSWCCA 247 (Tepania) at [112] where Johnson J stated (with Payne JA and Simpson AJA agreeing):

Reference is also made to R v Primmer [2020] NSWCCA 50 (Primmer), where this Court, exercising the residual discretion, dismissed an appeal pursuant to s 5D of the Criminal Appeal Act against the asserted inadequacy of sentence imposed in the District Court, accepting the Director’s submission that the sentencing judge fell into error in his approach to the assessment of objective gravity of the offending because there needed to be a clearer engagement with the question whether the respondent’s offence, taking into account only the objective factors affecting the relative seriousness of that offence, was in the middle of the range of seriousness. It is noted that in that case, the offence attracted a standard non-parole period; and that the Court referred to the decision in Tepania, noting that Johnson J held that the factors personal to the offender may be taken into account in determining the objective seriousness of an offence where those features are causally connected to the commission of the offence (see BM v R [2019] NSWCCA 223 at [15]-[17] (Payne JA, Fullerton and Bellew JJ); R v AA [2017] NSWCCA 84 at [55] (Beech-Jones J, as his Honour then was, Leeming JA and R A Hulme J agreeing). The appellant points out that in Primmer, Hamill J at [24] (Leeming JA and Harrison J agreeing) considered that a number of features of the offender’s personal circumstances were highly relevant to an assessment of his moral culpability and were critical to the conclusion that he was entitled to a sentence that was far more lenient than the objective criminality of the principal offence would otherwise warrant.

The appellant notes that a number of cases, decided in 2021, have referred to the overlap between the concepts of objective seriousness and moral culpability overlap and have said that an assessment of an offender’s moral culpability is a feature of the objective seriousness of the conduct, referring to Fisher v R [2021] NSWCCA 91 (Fisher) per Fullerton J at [70]; Kelley v R [2021] NSWCCA 173, per Bell P (as his Honour then was) at [39] (Rothman and Bellew JJ agreeing); and Rossall v R [2021] NSWCCA 200 per Garling J at [100] (Bathurst CJ and Rothman J agreeing).

The appellant submits that, in dealing with the issues of “objective seriousness” and “moral culpability” as separate rather than overlapping and interactive, the appellant says that his Honour fell into House v The King error in that he acted upon a wrong principle.

The Crown submits that his Honour did not err in his assessment of the objective seriousness of the offence, nor in the manner in which he dealt with the nexus between moral culpability and objective seriousness.

The Crown emphasises that for a challenge to the finding of objective seriousness what is required is House v The King error and that appellate courts must be slow to interfere with the assessment of a first instance judge as to objective seriousness, referring to the observations of R A Hulme AJ (with whom Beech-Jones CJ at CL, as his Honour then was, and McNaughton J agreed) in Clarke v R [2023] NSWCCA 170 at [69]; and of Gleeson JA (with whom R A Hulme and Button JJ agreed) in Magro v R [2020] NSWCCA 25 at [29].

As to the reliance placed by the appellant (in contending that the sentencing judge ought to have taken into account, in assessing objective seriousness of the offence, that the appellant’s moral culpability was reduced) on authorities including Tepania and Fisher, the Crown submits that those authorities should be read in light of more recent authorities on the relationship between objective seriousness and moral culpability.

In particular, reference is made to DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 (DS; DM), where the Court rejected the contention by the appellants that the sentencing judge had erred in not acting “on the basis that an assessment of each appellant’s ‘moral culpability’ was part of the determination of the objective seriousness of their offending”; and said that those were “separate but related steps” (see at [77], [96] (Beech-Jones CJ at CL, N Adams J, Cavanagh J). As to the connection between moral culpability and objective seriousness, the Crown refers to what was said by this Court in DS; DM (at [91]-[96]), noting that DS;DM has been followed in a number of subsequent cases (including Kramer v R; R v Kramer [2023] NSWCCA 152 (per Davies J at [115]; Hamill J at [122]; McNaughton J at [190]); Camilleri v R [2023] NSWCCA 106 per Adamson JA at [13] and [14]; Hamill J at [25]; Cavanagh J at [189]) and that in R v Eaton [2023] NSWCCA 125 (Eaton), Hamill J (with whom Lonergan and Ierace JJ agreed) said at [46] that DS & DM “explained authoritatively the way the concepts interact”, although there was still “room for debate about the way the principles [of objective seriousness and moral culpability] operate in particular cases and factual circumstances” and see at [49]-[50] of Eaton.

The Crown submits that those authorities make clear that a sentencing judge is not required in every case to take into account subjective matters bearing on moral culpability in the assessment of the objective seriousness of the offending; and that, whether subjective features that bear on a person’s moral culpability are also relevant to objective seriousness, will depend on the facts of the particular case. The Crown says that, typically, those cases have involved a mental impairment or illness rather than other subjective matters capable of resulting in a reduction in an offender’s moral culpability.

The Crown submits that in the present case, the appellant’s background of child sexual abuse was not relevant to the assessment of the objective seriousness of the offence, as distinct from the moral culpability of the offender himself (noting DS; DM at [85]); and that the manner in which the sentencing judge dealt with the issue of the appellant’s moral culpability was orthodox and in accordance with DS; DM at [92]. It is noted that his Honour made a finding about how much moral blame the appellant bore for the offence and incorporated that into the instinctive synthesis described in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25.

The Crown says that the appellant received the benefit of his Honour’s finding (at [81] of the remarks on sentence) that the report of Dr Furst established a causal connection between childhood sexual abuse and “his issues of jealousy and anger” (being his motivation to commit the offence) in that this resulted in a reduction of moral culpability. The Crown says that it was taken into account in the instinctive synthesis (noting [81] and [85] of the remarks on sentence); and notes that the finding was also factored into the decision to reduce the ratio of the non-parole period to the total sentence to some degree (at [90]).

The Crown says that there was no evidence of any mental impairment or other condition that might affect the level of premeditation or planning (noting that it was accepted by the sentencing judge in any event that there was no planning), nor the appellant’s judgment, ability to control his actions or understanding that what he was doing was wrong. Further, the Crown says that even these factors would not necessarily lead to a reduction in the objective seriousness of an offence (DS; DM at [96]).

In relation to the finding of objective seriousness more generally, the Crown says that the appellant’s submission that it was not open should be rejected.

The Crown says that his Honour’s finding that the offending was “slightly above” the mid-range was not a “radical departure” from the position submitted by the parties (that it was “mid-range”) and that it was consistent with his Honour’s findings as to the appellant’s state of mind along with the other matters identified at [55]-[57] of the remarks on sentence. The Crown says that this was a case in which the appellant brutally murdered his current partner out of jealousy, by the infliction of at least two blunt force blows to her head and back, either with his fists or an object (or more than two blows if not inflicted against a hard object), causing a total of 36 fractures (23 to the skull, 13 to the thoracic/back area); and that his Honour found that these actions were accompanied by an intention to kill.

The Crown says that the extent and severity of the injuries, coupled with the appellant’s intention, his motive, and the domestic violence context of the offence, render his Honour’s assessment of the objective seriousness of the offence beyond reproach.

The finding of objective seriousness (that it was above the mid-range) was well open to his Honour and there was no error in the approach his Honour adopted in reaching that conclusion.

The objective seriousness of an offence and an offender’s moral culpability are separate but related concepts (see DS; DM at [64], [77]). Objective seriousness of the offence involves an objective assessment of the seriousness of the crime and some causally related matters, whereas moral culpability of the offender is concerned with moral blameworthiness, which can involve considering a wider set of subjective factors affecting an offender than an assessment of objective seriousness.

Although in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, (the guideline judgment for a non-aggravated version of a dangerous driving offence), moral culpability was described as an aspect of objective seriousness, the reference at [205] to close consideration of the factors was limited to a series of objective circumstances (Spigelman CJ, Mason P, Barr, Bell and McClellan JJ). In DS; DM, this Court rejected (at [96]) the submission that the sentencing judge’s approach to sentencing was erroneous because the sentencing judge did not act on the basis that an assessment of each appellant’s moral culpability was part of the determination of objective seriousness of the offending.

It is instructive to note the explanation given in this Court in Paterson v R [2021] NSWCCA 273 by Beech-Jones CJ at CL (from [29] (R A Hulme and N Adams JJ agreeing) as to the distinction between the two concepts (objective seriousness being an objective assessment of the seriousness of the offence – including the circumstances of the crime and matters causally related to it; and moral culpability of the offender – which could involve consideration of an individual set of subjective factors). His Honour referred to Tepania at [30], where it was said by Johnson J that an assessment of the factors which bear on the seriousness of the offence can include regard to matters personal to the offender that are causally connected with or materially contribute to the commission of the offence. Beech-Jones CJ at CL rejected the suggestion that an assessment of moral culpability always forms part of the assessment of objective seriousness (at [31]).

DS; DM makes clear that although moral culpability may be relevant in the assessment of objective seriousness in particular cases it will not necessarily be so in all cases. What is required is a causal connection between the relevant impairment (giving rise to a reduction in moral culpability) and the offence in question. The fact of historic sexual abuse of the appellant was accepted by his Honour as reducing his moral culpability but it does not reduce the objective seriousness of the offence he committed.

Ground 7 is not made good.

The final ground of appeal against sentence is a manifest excess ground.

The appellant notes that the principles to be applied in the assessment of a ground of appeal asserting manifest excess in a sentence were summarised by R A Hulme J in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (Obeid) at [443] (Bathurst CJ, Leeming JA, Hamill J and N Adams J agreeing):

As noted earlier, the sentencing judge imposed a sentence of 27 years imprisonment; with a non-parole period of 19 years 9 months. During the course of the remarks on sentence his Honour articulated the appellant was receiving a discount of 7%, pursuant to s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (Crimes Sentencing Procedure Act) for his facilitation of the course of justice (at [89] of the remarks on sentence). The appellant notes that, taking that discount into consideration, and applying rounding, his Honour’s starting point for the sentence was 28 years 11 months imprisonment.

The appellant refers to his Honour’s findings that the attack upon the deceased was motivated by jealousy and culminated in the appellant striking the deceased in a jealous rage (at [27]); that his Honour was satisfied the appellant inflicted at least one blow to the deceased’s head and at least one separate blow to the deceased’s back (at [48]); and that the offence fell “slightly above the mid-range of objective seriousness” (at [57]).

It is noted that his Honour found that the appellant had one prior serious personal violence offence which occurred more than 20 years ago (at [59]); and that the offence was unplanned, in the sense that the appellant did not intend to attack the deceased before he met with her after she had left Mr Easton’s residence (at [62]).

The appellant points to the subjective material on sentence which included a report from forensic psychiatrist Dr Richard Furst; and that his Honour accepted there was a causal connection between the child sexual abuse of the appellant and his issues of jealousy and anger which were his motivation, such that the appellant's moral culpability was reduced (at [81]).

The appellant annexed to his submissions what was described as a “sample” of twenty-one cases involving murder where the victim was the female partner of the offender; though the appellant does not suggest that this sets the “range”. The appellant accepts that the use that can be made of sentencing sta+tistics was considered in Skocic v R [2014] NSWCCA 225 (see Bellew J at [191]-[201]), following Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) at [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41] (French CJ, Hayne, Kiefel and Bell JJ).

The appellant argues that it is instructive in that the highest head sentence within the sample size is a term of 24 years imprisonment whereas the undiscounted starting point for his Honour was 28 years 11 months. The appellant submits that the overall sentence also needs to be viewed through the prism of a reduced moral culpability as found by his Honour.

The Crown submits that, having regard to the maximum penalty and comparative cases of murder in a domestic violence context, and in light of the findings made by his Honour relevant to the objective seriousness of the offence and the appellant’s subjective case, the sentence imposed was neither unreasonable nor plainly unjust.

The Crown refers to the summary of relevant principles set out in Obeid by R A Hulme J applicable when considering a ground of appeal asserting manifest excess (at [443]), set out above at [371]. Relevantly, his Honour noted that appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; rather, intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. It was there noted that it is not to the point that the appellate court might have exercised the sentencing discretion differently.

Insofar as the appellant has provided a table of 21 cases, the Crown submits that these cases should be approached with caution and points out that there are other cases involving murder in a domestic violence context where there are higher head sentences (comparing starting points) than those in the appellant’s sample. In that regard the Crown refers to cases such as R v Latu (No 3) [2019] NSWSC 951 (Latu (No 3)), which was relied upon by the Crown at sentencing as a comparable case (where there was a term of 28 years imprisonment with a non-parole period of 21 years, the offender being sentenced on the basis of an intention to cause grievous bodily harm) (20/09/21; T20.31-45); R v Hachem [2023] NSWSC 535 (where there was a term of 24 years imprisonment with a non-parole period of 18 years, the offender being sentenced on the basis of intent to cause grievous bodily harm and where there was a finding of objective seriousness in the middle of the range); R v Lloyd [2022] NSWSC 906 (where there was a plea of guilty to murder and a sentence (after a 25% discount) of 25 years and 6 months imprisonment with a non-parole period of 19 years and 1 month); R v Wood [2018] NSWSC 1855; Wood v R [2019] NSWCCA 309 (where the offender pleaded guilty at the first available opportunity and was re-sentenced (allowing for a 25% discount) to 24 years imprisonment with 18 years non-parole period; there being various circumstances of aggravation in that case); R v De Beyer [2017] NSWSC 1700 (where the offender was sentenced to 25 years imprisonment with a non-parole period of 19 years and sentenced on the basis of intention to inflict serious bodily harm); and King v R [2015] NSWCCA 99 (King v R) (where the offender was sentenced to 32 years imprisonment with a non-parole period of 24 years).

Reference is made to what was said as to the use of comparable cases by R A Hulme J (Meagher JA and Davies J agreeing) in Wang v R [2021] NSWCCA 282 at [116]-[117], where his Honour noted that in Hili at [48] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ observed that “[c]onsistency is not demonstrated by, and does not require, numerical equivalence”. Reference is also made to King v R, in the context of a murder case, where this Court (Hoeben CJ at CL, Hidden and Beech-Jones JJ) said at [80]:

The Crown submits that the present case was an objectively grave example of the offence of murder for several reasons. First, the appellant beat the deceased to death, either using his fists or an object, in a fit of jealous rage. The Crown notes that the number and character of the fractures led a forensic pathologist, Dr Clifton, to equate the force used by the appellant to inflict those injuries with the forces commonly seen in injuries occasioned in motor vehicle accidents (20/04/21; T 254.33-37). Second, the appellant had exhibited jealous and controlling behaviour towards the deceased in the days leading up to her death, including by forcing her to delete her Facebook account due to his belief that the deceased was receiving images of other men’s genitalia via the Facebook Messenger platform; and the appellant made admissions in his interviews with police which indicated a possessive and preoccupied attitude towards the deceased (the Crown referring to Ex WWW, 9, 20-21, 49-51, 59-60; Ex ZZZ, 31-34, 74-75, 102-103, 115-117, 130, 138-141). Third, the manner in which the deceased was dumped off the side of a road, down a steep incline and in the bush, demonstrated a callous and contemptuous disregard for her, even in death. Fourth, that the appellant maintained a ruse for two years that he was not responsible for the deceased’s death, casting aspersions on others and otherwise successfully diverting attention from himself until the deceased’s remains were found, by chance, in 2016.

It is noted that the offence was aggravated by the fact that the appellant was on conditional liberty at the time; that the appellant was not entitled to a discount for a plea of guilty and had demonstrated no remorse; that the appellant received a discount of 7% (to give credit to the way his counsel had conducted the trial (see [89] of the remarks on sentence)) and was entitled to the mitigatory impact of an absence of planning in the offence. It is also noted that his Honour had regard to the appellant’s subjective case and made a finding that moral culpability was reduced by virtue of the appellant’s experience of childhood sexual abuse.

The Crown says that although the appellant’s use of the drug Ice at the time of the offence was a relevant factor on sentence, it could not itself be a mitigating circumstance (see s 21A(5AA) of the Crimes Sentencing Procedure Act); R v Fang (No. 4) [2017] NSWSC 323 at [72]-[73], [79]-[81] (Johnson J); R v Henry at [171]-[208] (Spigelman CJ; Wood CJ at CL, Newman and Simpson JJ agreeing).

The Crown says that general and specific deterrence have an important role to play in sentences imposed upon persons who murder their intimate partners as a final act of control over that partner’s life; and that such actions call for punishment which reflects the community’s abhorrence of this behaviour. It is submitted that the sentence must vindicate the dignity of the deceased and recognise the harm done to the deceased, to the deceased’s family, and to the wider community when a life is taken in such circumstances; and that the sentence must also denounce the offender’s conduct, so that a message is sent to the community that such behaviour is met with significant consequences, particularly in light of the increased consciousness of the prevalence and destructiveness of domestic violence.

In relation to sentencing for domestic violence offences, reference is made to what was said by French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, their Honours noting at [54]-[55]:

Reference is also made to Cherry (cited by his Honour at [55]) where Johnson J (Macfarlan JA and Harrison J agreeing) at [78]-[79] held:

The Crown notes that the need for sentences to be sufficient to deter domestic violence offenders has been acknowledged in other cases (referring to Yaman v R [2020] NSWCCA 239 per Wilson J at [135]; R v JD [2018] NSWCCA 233 per Hoeben CJ at CL at [103] (Meagher JA and Fagan J agreeing); R v Rae [2001] NSWCCA 545 per Sully J at [15] (Giles JA and Levine J agreeing).

In those circumstances, the Crown submits that the sentence imposed was open and cannot be characterised as manifestly excessive. The Crown submits that it falls within the available range and cannot be characterised as “unreasonable or plainly unjust”.

The sentence imposed by the sentencing judge was not manifestly excessive. The murder was a brutal one with significant force; the assault was one arising in the context of a domestic relationship; the deceased’s body was disposed of callously; and the appellant has shown no remorse. Having regard to the sentencing cases referred to as sample cases by the appellant and the further cases referred to by the Crown, it cannot be said that the sentence imposed was unreasonable nor was it plainly unjust. Crimes of this kind are deplored by society; and there is a need for both specific and general deterrence. The reduction allowed by the sentencing judge in his assessment of moral culpability was generous, as was the finding of special circumstances. Had the need for re-sentencing arisen, my conclusion would have been that for those reasons no lesser sentence was warranted as a matter of law.

Ground 8 should be dismissed.

The sentence appeal should also be dismissed.

The following orders should be made:

WILSON J: I am grateful to Ward P for her judgment and proposed orders, with which I agree, for the reasons given by the President. Like her Honour, having considered the evidence given at trial I am left with no doubt as to the appellant’s guilt of Ms McBride’s murder. Taking all the evidence together, the inescapable conclusion is that he beat Ms McBride to death on 30 September 2014, in what must have been a brutal and ferocious attack, and callously abandoned her body in bushland that same day. The sentence imposed for that terrible crime is unattended by error. With that background, I wish to add some short observations with respect to ground 2, and ground 4.

Ground 2 seems to be underpinned by the supposition that directions given to a jury must take a particular form, and be given in sequential, readily identifiable, sections. Whilst directing a jury in that way certainly makes the task of the appellate lawyer more straightforward, in that each required direction can be ticked off – or not - as the “dedicated” section of the summing up is reached, there is no rule of law that makes this a requirement, even for directions that have particular significance in the context of the issues and evidence at trial. The important thing in directing a jury is that the substance of a particular direction is given in accordance with the dictates of authority, in a way that the jury can comprehend and apply. Whilst it is generally convenient to give each direction in a “dedicated” way, failure to do so will not be an error, if the direction is given in terms that meet the legal requirements. Here, the trial judge gave the substance of an inference direction repeatedly and in multiple contexts. The jury could not have failed to understand the care required in drawing an inference, and the necessity in a circumstantial case of examining and excluding all reasonable hypotheses consistent with innocence before doing so. The approach of the trial judge was not erroneous.

In that the members of the Court have expressed divergent views with respect to ground 4, it may be of some use for me to record the basis of my agreement with the President’s proposed disposal of the ground, beyond a bare concurrence.

To leave manslaughter to the jury the trial judge needed to be satisfied that there was evidence to support the alternative charge and that justice required the alternative to be left. The principle is set out in James v The Queen (2014) 253 CLR 475 at [38]:

As that extract makes clear, the circumstances of the particular case provide the important ground upon which the necessity of leaving the alternative is assessed. Three features of the applicant’s trial in particular point strongly to the correctness of the decision of the trial judge in that regard.

The first, and highly significant, feature is the medical and forensic evidence of injury that was adduced at trial (and summarised by Ward P). The jury was told by Dr Penny McCardle, a forensic anthropologist and forensic archaeologist, that Ms McBride’s remains bore 23 fractures to her face and skull, and a further 13 fractures to her body. All the fractures had been inflicted at or near the time of death by blunt force trauma. The force used in the blow to one impact area, the left cheek and nose area, must, in the opinion of Dr McCardle, have been significant to cause the fractures that resulted from it. Similarly, the force used to inflict the damage done to the shoulder blades must have been considerable, these being difficult bones to break on the evidence. Dr McCardle thought that there were three or more applications of force to the head. A separate blow or blows caused the fractures to the body that were observed.

Dr Leah Clifton, the forensic pathologist who conducted the autopsy on Ms McBride’s remains, concluded that severe force must have been used to inflict the multiple fractures she saw. Significantly, Dr Clifton, like Dr McCardle, was firmly of the view that more than one blow had been used to inflict the injuries sustained by Ms McBride. Although one forceful blow to the head could have occasioned more than one impact because of the possibility of a second head trauma from collapsing to and striking the ground following the blow to the face, one blow could not explain the injuries to both head and body. Necessarily, at least two very forceful blows were landed upon Ms McBride.

Given the nature of the force involved and the injuries inflicted, it is reasonable to infer that the first blow would have knocked Ms McBride to the ground and incapacitated her; she would have been very obviously seriously hurt. To inflict a further blow or blows of similar significant force takes the actus reus beyond that of an unlawful and dangerous act. An intention to do, at the very least, grievous bodily harm is inherent in an attack of such brutality involving two or more blows. Nothing in the evidence of Dr Johan Duflou detracts from that conclusion. One, even very severe, blow may constitute manslaughter by an unlawful and dangerous act. Two or more very severe blows, the second of which (and any further blows thereafter) must have been inflicted upon an already seriously injured victim, is murder. The only reasonable inference in my conclusion upon the whole of the medical evidence is that the applicant must have intended to do, at least, some very serious bodily harm to Ms McBride. That feature alone is sufficient to exclude the lesser alternative being left to the jury.

The second feature is the evidence that went to establish that the applicant was an experienced martial arts fighter who knew both his own capabilities, and his potential to resort to violence. There was evidence before the jury from a number of sources to establish the former; the latter was established at least by the text message to Ms McBride sent on 30 August 2014 at 11:42pm, Ex. HHHH, in which the applicant warned her, in part, “I am violent wen in this mood and u have no idea bout this part”. Taking this evidence with the evidence of injury means that there is no reasonable likelihood of the attack upon Ms McBride being anything other than a murderous assault.

The third feature to add into that mix is the stance taken by the applicant’s counsel at trial. Although by no means “determinative” of the issue, being fully familiar with the evidence that had been given before the jury at trial, and having clearly given considerable thought to the issue, experienced criminal trial counsel concluded that there was no basis upon which manslaughter could be properly left to the jury. The position of trial counsel did not bind the trial judge and it does not bind this Court, as the obligation to leave the lesser offence of manslaughter endures even where the accused person objects to that course being adopted: Lane v The Queen (2013) 241 A Crim R 321; [2013] NSWCCA 317, at [39]. However, it is a feature not without weight that the applicant’s counsel was unable to identify evidence that supported the lesser alternative such that it should or could be left to the jury. That the trial judge, also an experienced criminal lawyer, shared that conclusion must also be given some weight.

For these reasons, and those separately addressed by the President, I would also dismiss this ground.

FAGAN J: I have had the advantage of reading in draft the judgments of Ward P and Wilson J. I am unable to agree with their Honours’ proposed disposition of ground 4, which I would uphold and on the basis of which I would allow the appeal, quash the conviction and order a retrial. I agree with their Honours that leave to appeal should be granted and that grounds 1, 2, 3 and 5 should be rejected, for the reasons given by Ward P and the additional reasons given by Wilson J concerning ground 2. With respect to ground 5, it was open to the jury to be satisfied beyond reasonable doubt that the appellant inflicted the fatal head injuries upon the deceased and that he did so with intent to cause grievous bodily harm or death. It is not inconsistent with that view that, in deciding ground 4, I recognise that if manslaughter had been left to the jury it would have been open to them to have felt a reasonable doubt about specific intent and to have brought in a verdict of not guilty of murder, guilty of manslaughter. It was a strong circumstantial case of murderous intent and a finding that the appellant was guilty only of manslaughter would have been unexpected. But it was open and should have been left to the jury for their decision.

In support of ground 4, the only category of manslaughter that the appellant submits should have been left to the jury is manslaughter by unlawful and dangerous act. In that form of the offence, an unlawful act is one that is contrary to the criminal law – self-evidently, but see Wilson v The Queen (1991) 174 CLR 313 at p 335 (Brennan, Deane and Dawson JJ). A dangerous act is one carrying an appreciable risk of serious injury: Wilson v The Queen at p 333 (Mason CJ, Toohey, Gaudron and McHugh JJ); The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 at [40] (Gleeson CJ, McHugh, Gummow and Hayne JJ). The test of dangerousness is objective. To find the appellant guilty of manslaughter on this basis the jury would have to have been satisfied that a reasonable person in his position, performing the acts that he performed, would have realised that Ms McBride was thereby exposed to an appreciable risk of serious injury.

In R v Kanaan (2005) 64 NSWLR 527; [2005] NSWCCA 385 this Court (Hunt AJA, Buddin and Hoeben JJ) reviewed decisions of the High Court concerning circumstances in which a trial judge must direct the jury on the alternative of manslaughter and the consequences of failure to do so. Under the heading “The High Court’s present position”, their Honours set out at [75] the following principles (reproduced here with the addition of citations of some of the cases considered):

In the trial from which this appeal is brought there were tendered photographs and diagrams of fractures to the deceased’s skull. Those exhibits combined with expert opinions of Drs McCardle, Clifton and Duflou, constituted the circumstantial evidence from which it was open to the jury to infer that death was caused by blunt force head injuries, from at least two impacts, resulting in significant brain trauma with intracranial haemorrhage. Uncontested evidence established a total of 23 fractures to the skull and a further 13 fractures to the deceased’s thoracic region. All fractures were perimortem.

There were two groups of skull fractures indicating separate points of impact. The first group comprised 14 fractures to the left side of the face. These included fractures to the cheekbone (maxilla) just below the left eye socket and extending into the orbital floor, a missing piece of bone from the cheekbone, breakage of the nasal bone with pieces missing, a fracture of the left zygomatic arch and fractures radiating from the left eye socket along suture lines into the left temporal bone. There were also two fractures to the mandible, one to the left side with plastic deformation and one to the front right, likely both due to a left-sided impact with reactive displacement causing the fracture to the right. Secondly, there were fractures centring on a point of impact at the back of the skull, in the occipital bone, on the lower right side. Those fractures radiated through the occipital bone and along suture lines.

The opinions of Drs Clifton and Duflou as to possible causative mechanisms for the injuries included that the left-sided facial injuries were consistent with at least one punch, involving significant force. Dr Clifton said that the location and type of injuries suggested a blow struck by a right-handed assailant, standing face to face with the deceased. Dr Clifton referred to a third group of fractures through an internal cranial structure identified as “the base of the skull”. That structure is composed of bones located between the ears, behind the nose and eyes and below the brain case, forming a more or less horizontal floor of the brain case. Both doctors were unsure whether the internal skull fractures to the base of the skull were consequent upon the left facial impact or the right occipital impact or another impact altogether. Dr Clifton said this:

Dr Duflou said that the left facial injuries could also have been caused if the deceased was face down, with her face close to the ground, when she was struck from behind at the occipital point of impact. In that situation one blow to the back of the head could have caused both the fractures at that location and also to the face, as a result of it striking the hard surface. Dr Duflou said that if the left facial fractures resulted from the deceased being punched while standing, “both a greater number [of punches] and in all likelihood greater force” would have been required to produce the fractures that were found than if the deceased’s head was restrained, for example if she was punched or stomped in the face while the back of her head was on the ground. The doctor’s opinion in that respect was based on the consideration that, if the deceased was standing, her head would be mobile and the force of a punch would be to some extent absorbed by rearward movement.

Both doctors considered that the second point of impact, to the right occipital area of the skull, was consistent with a heavy blow having been struck to that area, with a fist, foot or hard object. Dr Clifton said that it could alternatively have been caused by the back of the deceased’s head hitting a hard surface if a punch to the left side of her face had knocked her down from a standing position. Dr Duflou said that the fractures to the right occipital area could have been caused if the back of the deceased’s head was close to a hard surface on the ground when the blow to the left side of her face was struck. He gave this answer:

Both doctors were cross-examined about the possibility of the deceased’s injuries having been caused by motor vehicle impact or by falling down a slope onto hard ground. For the purpose of determining the point of appeal now under consideration it is not necessary to refer to their answers to that line of questioning, as it was open to the jury to reject the hypotheses of a motor-vehicle accident or a fall as not reasonable possibilities. It is also unnecessary to refer to the doctors’ evidence about the fractures to the deceased’s scapulae, vertebrae and ribs. There was no suggestion in the case that those injuries to the thoracic region were a significant cause of death.

The above evidence was relied upon by the Crown to support an inference that death was caused by deliberate infliction of severe blows, whether by punches, kicks, stomps or by wielding an object. A separate large body of circumstantial evidence, including evidence of movements, opportunity, motive, admissions and conduct after the apparent disappearance of Ms McBride, was relied upon to prove that the perpetrator of the blows was the appellant. That evidence has been summarised by Ward P. Importantly for the determination of ground 4, the physical and expert evidence concerning the deceased’s skeletal injuries was relied upon by the Crown as the basis for inferring that, when inflicting blows that caused the deceased’s death, the appellant intended to cause at least grievous bodily harm. The Crown’s address included the following:

The learned trial judge directed the jury with respect to inferring intent from such acts as they might find the appellant to have committed, in a passage that has been quoted in the judgment of Ward P at [329] but which is repeated here for ease of reference:

The authorities recognise that the alternative of manslaughter need not be left if there is no evidence upon which it could arise. That does not mean that in every case where murder is charged, manslaughter can only be a viable alternative if there is specific additional evidence to support the lesser offence, over and above the evidence relied upon by the Crown to prove murder. For the voluntary forms of manslaughter – provocation, mental impairment or excessive self-defence – there must be evidence to enliven the factual issues that are specific to those forms, before it would become necessary to direct the jury as to the possibility of an alternative verdict. However, where manslaughter by unlawful and dangerous act is concerned, the evidence relied upon by the Crown to prove the accused’s acts causing death and to support the inference of the intent requisite for murder will often be coextensive with evidence that would prove an unlawful and dangerous act, should the jury find that the proof falls short of establishing the specific intent.

The inference of intent to cause at least grievous bodily harm was certainly open to this jury, upon the basis articulated in the above quoted extracts from the Crown’s closing address and the summing up. But a jury is never bound to draw an inference that an essential element of a criminal offence has been proved beyond reasonable doubt. It was equally open for the jury to give effect to any reasonable doubt they may have felt concerning the appellant’s alleged intent. If they did feel such a doubt, then on the same evidence it would have been open to them to find that his acts of striking the deceased were unlawful and dangerous and that a reasonable person in his position would have realised that she was thereby exposed to an appreciable risk of serious injury. If the jury did not find intent to cause death or grievous bodily harm, to the criminal standard, then the case for manslaughter by unlawful and dangerous act was there before them on the very evidence that they had been asked to consider on the charge of murder. There was a viable case of manslaughter. The jury should have been directed upon it, in the alternative.

Having regard to the evidence and the issues in this case, the only basis upon which it could be said that manslaughter was not open is if it should be concluded that the jury could not fail to be satisfied beyond reasonable doubt of the appellant’s intention to inflict at least grievous bodily harm. That is not a judgment within the authority of the trial judge, or this Court, to make. It was for the jury alone. The question of intent was left to them for the purpose of determining whether or not murder was proved. Their satisfaction, or not, on that issue would bear upon whether they needed to assess the appellant’s acts as unlawful and dangerous for the purpose of considering manslaughter. The jury should have been so directed.

In Lane v R [2013] NSWCCA 317 the Crown alleged that the appellant had murdered her two day old child. The Crown case was unequivocally based upon intent to kill, not merely intent to cause grievous bodily harm or reckless indifference to human life. No body was ever found and the Crown was not in a position to propose a cause death. There was no direct evidence of the appellant’s state of mind when the child died. In proof of all elements the Crown adduced evidence that the appellant had a history of taking steps to ensure that she did not have the responsibility of caring for a child or children. There was evidence that she had had two pregnancy terminations and that she had given up two children for adoption, one of them after the birth of the child who was alleged to have been murdered. That evidence was received in proof of tendency, pursuant to s 97 of the Evidence Act 1995 (NSW).

The Court (Bathurst CJ, Simpson and Adamson JJ) dismissed a ground of appeal in which it was asserted that the trial judge had “erred in failing to leave the alternative count of manslaughter to the jury”:

A counter-example is Carney v R; Cambey v R [2011] NSWCCA 223. For present purposes it is sufficient to consider the case of Carney. He used a metal bar to strike the deceased on the head at least four times, with varying levels of force, two of the blows with “significant force” causing a depressed fracture of the skull. The deceased died as a result of brain injury caused by the blunt force trauma to his head. The Crown primarily based its case at trial upon an intention to inflict grievous bodily harm, submitting that the jury should infer that there must have been such an intention because of the number of blows, the weight of the bar and the fact that significant force was required to fracture the skull. Carney was convicted of murder.

The Court (Whealy JA, James and Hoeben JJ) upheld the sole ground of appeal, that the trial judge erred in not leaving manslaughter to the jury. In concluding that manslaughter was open their Honours took into account not only the nature and circumstances of Carney’s acts but also evidence of his post-homicide statements and conduct, which could be construed as inconsistent with him having had an intent to cause grievous bodily harm at the time of the attack. The Court held as follows:

The Court expressed itself with restraint in stating that Carney “may have had a difficult task persuading the jury” to entertain a reasonable doubt whether four blows to the head with a heavy metal bar must have been accompanied by an intention to cause grievous bodily harm. However, that was for the jury to decide. The Court’s decision that manslaughter should have been left to the jury in Carney’s trial illustrates that, where there is evidence of the accused’s acts causing death and the jury are asked by the Crown to infer from the nature of those acts that grievous bodily harm was intended, it will often be integral to the jury’s deliberations that they also consider this question: if it is reasonably possible that the accused’s state of mind fell short of the specific intent, were the accused’s acts nevertheless unlawful and dangerous and such that a reasonable person in his or her position would have seen that the deceased was exposed to an appreciable risk of serious harm?

In some respects the present is a stronger case for manslaughter to have been left than Carney v R; Cambey v R. Although in this case there was no evidence of post-homicide statements or conduct by the appellant that might have supported, affirmatively, an intention merely to subdue or temporarily incapacitate Ms McBride, on the other hand the evidence was not definitive as to the number of blows or as to the use of any weapon. Repetition of blows, as in the case of Carney, would tend to suggest perseverance and hence intent to cause really serious injury. The use of a weapon with which to increase the damage caused by each blow would also support the inference. On Dr Clifton’s evidence there may have been only one heavy blow to the left side of the deceased’s face, causing her to fall backwards and strike the occipital region of her head upon hard ground. That is a description of what is commonly referred to as “one punch manslaughter”.

Leave to appeal on ground 4 should be granted pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules. In Roos v R [2019] NSWCCA 67 at [72]-[73], Gleeson JA (Harrison and Davies JJ agreeing) considered the former r 4 of the Criminal Appeal Rules. His Honour cited authorities by which it has been established that leave to rely on a direction or omission that was not contested at trial will be granted only where the appellant can demonstrate that the error led to a miscarriage of justice; further, that the appellant must at least establish that he or she has lost a real chance, or a chance fairly open, of being acquitted.

The High Court has clearly stated that failure to leave manslaughter where it should have been left is an error of law: R v Kanaan, principle (4)(a). In Gilbert v The Queen at [18]-[20] Gleeson CJ and Gummow J approved and applied the following statement from Bullard v The Queen [1957] AC 635 at p 644 (Lord Tucker):

Also in Gilbert v The Queen at [101] Callinan J said:

The dissenting judgment of Isaacs J in Ross v The King (1922) 30 CLR 246 at pp 260, 262-263 is another strong judicial statement that a miscarriage of justice, through loss of a chance fairly open of being acquitted of murder, will result from the legal error of failing to leave manslaughter to the jury where it is a viable alternative on the evidence.

Those authorities treat miscarriage of justice as so inherent in an error of this nature that leave to appeal under r 4.15 must almost inevitably be granted. Further, in considering the operation of r 4.15 the Court must take into account the High Court’s settled position that a trial judge must leave a viable alternative of manslaughter to the jury even in the face of opposition from defence counsel. Pronouncements of Barwick CJ were very emphatic in this respect. In Pemble v The Queen his Honour said this at pp 117-118:

In Varley v R (1976) 12 ALR 347; (1976) 51 ALJR 243 at 351/245 his Honour (Stephen, Mason, Jacobs and Aiken JJ agreeing) again emphasised the necessity to leave manslaughter, where open on the evidence, regardless of the position taken by defence counsel

Those statements mean that if manslaughter is not left to the jury in a case where it should be, the accused on appeal cannot be held to the conduct of his or her counsel at trial. The filter of r 4.15, directed against points raised on appeal that counsel chose not to take at trial, is not engaged with respect to an aspect of directing the jury in which the trial judge is required to act irrespective of counsel’s submissions or elections. The substantive law laid down by the High Court has for all practical purposes overridden the application of the procedural rule in relation to an appeal ground of this nature.

As the appellant’s conviction is affected by a “wrong decision on the question of law”, within the meaning of s 6(1) of the Criminal Appeal Act 2012 (NSW), the appeal should be allowed unless the Court “considers that no substantial miscarriage of justice has actually occurred”. Principle 4(c) as stated in R v Kanaan is applicable: it is not open to the Court to rule out a substantial miscarriage of justice upon the basis that the jury, properly instructed as to the elements of murder, found that it was proved beyond reasonable doubt.

The question whether the proviso is engaged must be determined in accordance with Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81. The following paragraphs of the Court’s judgment must be considered:

Those paragraphs make plain that it is a necessary but not sufficient condition for the application of the proviso that the appellate court should be satisfied, upon its own review of the entire record, “that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused guilty of the offence on which the jury returned its verdict of guilty”. The necessary but not sufficient character of such a conclusion was further spelt out in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [53] (Gummow and Hayne JJ):

In AK v Western Australia Gleeson CJ and Kiefel J were in dissent but their Honours made the same point:

For present purposes, the importance of the above passages is that, even if full examination of the evidence adduced at trial should persuade the Court of the appellant’s guilt, the nature of the error may be of such a fundamental kind that the proviso should not be applied. That being so, it is consistent with Weiss v The Queen and the cases that have followed it to commence by determining whether the error identified in the appellant’s ground 4 involved such a “significant denial of procedural fairness” or such a “serious breach of the presuppositions of the trial” that the proviso should not be applied even if the Court should be satisfied of the appellant’s guilt.

That approach is consistent with the judgment of the present Chief Justice of the High Court in Hofer v The Queen [2021] HCA 36. His Honour said that determination of whether the proviso is engaged is to be approached in the following way (citations omitted):

Here, the failure to leave manslaughter was an error of law that gave rise to a miscarriage of justice for the reasons explained in the authorities quoted at [426]-[428] above. It cannot be said that no substantial miscarriage of justice actually occurred. The proviso is not engaged because the failure to direct the jury as to the alternative of finding the appellant guilty of manslaughter by unlawful and dangerous act, rather than murder, was a “serious breach of the presuppositions of the trial”. For the purposes of resolving whether the proviso is applicable, it does not become necessary for me to satisfy myself, upon the whole of the evidence at the trial, whether or not the appellant’s guilt of murder was proved.

In Lane v R at [99] the Court said of the decision in Carney v R; Cambey v R that it is “a precedent likely to encourage appeal grounds of the kind now under consideration”, referring to ground 1 in the Lane appeal, which, like ground 4 in the present appeal, asserted error on the part of the trial judge by failing to leave manslaughter to the jury. Having regard to the principles summarised in R v Kanaan, the incidence of such appeals will be entirely dependent upon the rigour and accuracy with which trial judges assess the viability of manslaughter as an alternative in murder trials. The duty of a trial judge to decide that question according to his or her independent assessment, which may cause the judge to give directions that are not supported by either party, is anomalous amongst the usual functions of a judge in an adversarial system. Resolving to direct the jury in terms that both parties oppose, or, at least that neither of them supports, is an unfamiliar course. Such a decision may be susceptible to doubt and mistake for the very reason that the judge does not have the assistance of argument for and against.

Where the question of leaving manslaughter to the jury arises and defence counsel resists, Crown counsel with a thorough understanding of the authorities discussed in this judgment and exercising detachment as a minister of justice, in accordance with the norms of prosecution in our system, may assist a trial judge to avoid error and to avert the waste of resources that attends upon appeal and retrial.

For the foregoing reasons I would grant leave to appeal, uphold ground 4, allow the appeal, quash the conviction and order a retrial.

As mine is a minority view, the conviction will stand and the sentence appeal must be addressed. I agree with Ward P, for the reasons her Honour has given, that leave to appeal against sentence should be granted but that each of grounds 6-8 should be rejected and the appeal dismissed.

With respect to ground 6, the sentencing judge’s finding that the appellant intended to kill Ms McBride was open to him. The fact that his Honour reached that conclusion, after verdict, has no bearing upon ground 4, which concerns what was open to the jury to decide with respect to intent and how manslaughter by unlawful and dangerous act might have been found if the jury were not satisfied of the specific intent for murder.