Bloodsworth v R

1. [1]

   BATHURST CJ: For the reasons given by Harrison J, I joined in the orders made by the Court on 4 October 2019.

2. [2]

   BELL P: I agree with Harrison J.

3. [3]

   HARRISON J: On 4 October 2019, this Court made the following orders:

   1. (1)

      Grant the applicant leave to appeal.

   2. (2)

      Allow the appeal.

   3. (3)

      Quash the conviction of the applicant for the offence of manslaughter.

   4. (4)

      Enter a verdict of acquittal.

   5. (5)

      The applicant is to be released forthwith.

4. [4]

   My reasons for joining in the orders of the Court are as follows.

5. [5]

   Between 16 October 2017 and 27 October 2017, Rhiannon Lisa Bloodsworth and a co-offender, Trent Errington, stood trial before Adamson J and a jury charged with the murder of Jay Cerin at Hebersham in August 2015. Both offenders pleaded not guilty. On 27 October 2017, the jury returned verdicts with respect to each offender of not guilty of murder but guilty of manslaughter. On 8 February 2018, her Honour sentenced Ms Bloodsworth to a term of imprisonment for 11 years commencing on 31 August 2015 and expiring on 30 August 2026 with a non-parole period of 7 years and 6 months expiring on 27 February 2023.

6. [6]

   By her notice of appeal filed on 17 July 2019, Ms Bloodsworth appeals against her conviction upon the single ground that the verdict was unreasonable and cannot be supported having regard to the nature and quality of the evidence. The ground of appeal does not involve a question of law alone and Ms Bloodsworth accordingly requires leave to appeal: s 5(1) of the Criminal Appeal Act 1912.

7. [7]

   Ms Bloodsworth also seeks leave to appeal against the sentence imposed upon her on the grounds that her Honour erred in the assessment of the objective seriousness of the offence, that there is a marked disparity between her sentence and that imposed upon Mr Errington and that the sentence is otherwise manifestly excessive. Having regard to the view taken by this Court to the conviction appeal, it is unnecessary to examine these grounds of appeal further.

The Crown case

1. [8]

   The Crown alleged that as part of a joint criminal enterprise Ms Bloodsworth and Mr Errington murdered Mr Cerin between 28 and 30 August 2015 in his Housing Commission unit at Hebersham. Mr Errington is Mr Cerin’s half-brother. At around the time of the offence, Ms Bloodsworth and Mr Errington were in a relationship and were living at Mr Cerin’s unit. Mr Cerin died in the unit as the result of being gagged and restrained in a hog-tied position in addition to sustaining head injuries occasioned to him when struck by a heavy bowl. Mr Cerin also suffered injuries consistent with having been punched and stabbed in the arm. He survived for a period of about two hours after the head injuries were inflicted.

2. [9]

   Mr Errington took part in an ERISP and admitted his involvement in the acts leading to Mr Cerin’s death. His version of what occurred also inculpated Ms Bloodsworth. She did not take part in an ERISP and otherwise made no admissions. There was no DNA evidence that linked Ms Bloodsworth to the commission of the alleged crime. There were also no listening device material or intercepted telephone conversations that inculpated Ms Bloodsworth. Neither she nor Mr Errington gave evidence at their trial. The jury was properly directed that they could not take into account against Ms Bloodsworth anything said by Mr Errington in his recorded interview.

3. [10]

   Ms Bloodsworth’s response at trial to the Crown case was that the evidence did not establish that she was party to a joint criminal enterprise with Mr Errington to assault Mr Cerin by hitting, hog-tying and gagging him or that she was even present at the relevant time.

4. [11]

   The jury verdicts make it clear that they were not satisfied that either offender had an intention to kill or cause grievous bodily harm to Mr Cerin or that they foresaw his death as a probable consequence of their acts. However, it is apparent that the jury was satisfied beyond reasonable doubt that both Ms Bloodsworth and Mr Errington were guilty of manslaughter by unlawful and dangerous act committed as part of a joint criminal enterprise.

5. [12]

   Ms Bloodsworth offered prior to trial to plead guilty to a charge of accessory after the fact and conceal serious indictable offence. That offer was not accepted by the Crown.

6. [13]

   It is also apparent from the evidence that Ms Bloodsworth was present in the apartment at some point during the evening when Mr Cerin was being assaulted by Mr Errington. The evidence does not establish when in relation to that assault Ms Bloodsworth was there. It is unsurprising in those circumstances that her Honour said this at the start of day five of the trial:

7. [14]

   A little later on the same day, the following discussion occurred:

8. [15]

   Counsel for Ms Bloodsworth responded to this at her Honour’s invitation as the following extract reveals:

9. [16]

   Clearly enough, the Crown’s suggestion that Ms Bloodsworth was both “present and assisting” was central to the Crown’s case against her and was an issue of significant controversy in the trial.

10. [17]

    After the jury verdicts were returned, the Crown in due course proffered written submissions on sentence. Although these submissions cannot have informed any matter that the jury were required to consider, they are potentially instructive for the purposes of understanding Ms Bloodsworth’s central contention in this Court. Specifically with respect to the facts referable to the Crown’s case against Ms Bloodsworth, those submissions were as follows:

11. [18]

    Counsel for the Crown in this Court emphasised this same theme in his written submissions. It is instructive to record some of those submissions here:

Ms Bloodsworth’s submissions

1. [19]

   Ms Bloodsworth conceded that she was present at some point at the unit on the evening when Mr Errington assaulted Mr Cerin. She submitted that it was otherwise not clear whether this was before, during or after the assault took place. Mere presence at the unit is not sufficient by itself to make Ms Bloodsworth guilty of any crime committed by Mr Errington while she is there. The evidence did not place Ms Bloodsworth in the room where Mr Cerin was hogtied, wherever or whenever that occurred. Ms Bloodsworth also submitted that even if it was open to the jury to find that Mr Cerin was struck with the dog bowl in the living room, there was no admissible evidence to prove that she was present at that time. It was also important to emphasise that even if the assault occurred in Ms Bloodsworth’s presence, there was no evidence proving to the requisite standard that she acted, or did anything, to assist or harm Mr Cerin or that she otherwise encouraged Mr Errington to do so. In the circumstances, there was no evidence to establish any agreement between her and Mr Errington or any evidence from which the necessary agreement could be legitimately inferred.

2. [20]

   Ms Bloodsworth submitted further that, in circumstances where Mr Errington acknowledged that he had committed acts that led to the death of Mr Cerin, and where no plausible motive could be attributed to her, it was not open to the jury to have inferred beyond reasonable doubt that she participated or helped Mr Errington in some way to kill Mr Cerin. Ms Bloodsworth submitted that at its highest, the only rational inference that could be drawn beyond reasonable doubt was that she came at some stage to know or to learn what Mr Errington had done.

3. [21]

   Ms Bloodsworth’s later statements and actions, said to amount to a consciousness of guilt, such as relating the false story of Mr Cerin’s attempted rape, and her efforts to flee interstate, were all entirely consistent with the actions of someone who believed that she had somehow become involved in or concerned with the commission of a crime by Mr Errington. They may alternatively have been committed as a function of Ms Bloodsworth’s then relationship with Mr Errington.

4. [22]

   In summary, Ms Bloodsworth submitted that the finding of guilt is explicable upon the basis of no more than association or speculation or both.

Legal principles

1. [23]

   The general principles to be applied in considering a claim that a jury verdict is unreasonable are well settled. They were recently re-stated by Simpson AJA in Stanford v R [2018] NSWCCA 249 as follows:

2. [24]

   These principles are not controversial.

Consideration

1. [25]

   When regard is had to the evidence that was admissible in the trial against Ms Bloodsworth, it is significant that it does not include any of the following:

   1. (1)

      Evidence of physical assistance or active participation in the assault upon Mr Cerin.

   2. (2)

      Evidence of an admission of any kind.

   3. (3)

      Evidence of motive, accepting that proof of motive is not essential, and that absence of motive is not fatal, to the Crown case.

   4. (4)

      DNA evidence connecting her to the death of Mr Cerin, as opposed to DNA taken from various neutral locations within the unit.

   5. (5)

      Evidence of any inculpatory post mortem voice recordings recovered from listening device or intercepted telephone communications, text messages or other surveillance material.

   6. (6)

      Evidence unambiguously demonstrating a consciousness of guilt of the crime alleged, as opposed to some other crime, such as accessory after the fact or conceal serious indictable offence.

2. [26]

   The Crown case against Ms Bloodsworth that went to the jury was entirely circumstantial. It was based upon the limited evidence that she was merely present in the unit when Mr Cerin was assaulted and that she acted or spoke thereafter in a way that allegedly suggested or evinced a consciousness of guilt for an offence. In order for the jury legitimately to have concluded beyond reasonable doubt that Ms Bloodsworth was guilty of manslaughter, there would have had to be evidence from which they could rationally infer her participation in a joint criminal enterprise with Mr Errington to assault Mr Cerin. There was no evidence of an express or implied anterior agreement between them to do anything. At its highest, the evidence placed Ms Bloodsworth in the unit at some unspecified time in relation to the assault upon Mr Cerin.

3. [27]

   Moreover, being an entirely circumstantial case against her, Ms Bloodsworth could not be jointly liable for the consequence of any criminal acts committed or performed by Mr Errington unless the Crown were able to exclude any reasonable hypothesis consistent with innocence with respect both to her presence at the scene when his criminal acts were committed or performed and for her words or conduct said to demonstrate a consciousness of guilt concerning the crime that he thereby committed. Mere presence at the unit where she was at that time residing was entirely consistent with innocence; it would not by itself in the circumstances of this case be sufficient to support an inference that Ms Bloodsworth had agreed to participate in Mr Errington’s crime. Further, her lies and flight were equally consistent with a concern that she might be inculpated as an accessory after the fact as with her participation in the crime alleged. They were also consistent with an ongoing sense of attachment and loyalty or even sense of obligation to Mr Errington.

4. [28]

   The Crown drew attention to the uncontroversial proposition that the jury were in the advantageous position of seeing and hearing all of the evidence from witnesses in the trial. This has recently been emphasised in AZ v R [2018] NSWCCA 294 as follows:

5. [29]

   I have had particular regard to the whole of the evidence that was put before the jury in this trial. I accept that the jury’s advantage of being present during the entirety of the proceedings should not lightly be discounted or depreciated. However, no such advantage can operate to overcome the absence of evidence capable of establishing the guilt of an accused person beyond reasonable doubt. When regard is had to the evidence in the trial, it is not in my view possible to isolate or to discern the existence of a principled basis upon which the jury could have been satisfied beyond reasonable doubt of Ms Bloodsworth’s guilt. There is in my view no evidence upon which a jury could rationally conclude beyond reasonable doubt that Ms Bloodsworth was or became a party to an agreement formed with Mr Errington to do anything at all. Her mere presence at the unit was insufficient for that purpose. Her post offence conduct could also not be excluded as explicable by an equally probable hypothesis consistent with her innocence.

6. [30]

   One matter upon which the Crown placed emphasis at trial and in this Court drew upon evidence given concerning a recording found on Ms Bloodsworth’s phone of what appear to have been events at the unit at or close to the time when Mr Cerin was being assaulted. That evidence was given by Mr Rigley, and is relevantly as follows:

7. [31]

   The Crown’s reliance upon this material in order somehow to support the case against Ms Bloodsworth would appear to be based upon the proposition that she recorded what was on her phone and that she could thereby be shown to be assisting Mr Errington in the commission of the assault. A number of things can be said about this. First, the evidence does not disclose that Ms Bloodsworth was in any event responsible for the recording, even though it was said to be recorded on her phone. The phone was not seized or the subject of any subpoena or otherwise in evidence. Secondly, and perhaps more significantly, the matters that were recorded, as recalled and described by Mr Rigley, were arguably wholly inimical to the existence of any agreement between Ms Bloodsworth and Mr Errington and, on the contrary, suggested that Mr Errington was coercing or attempting to overbear her to a considerable extent. Mr Rigley’s evidence supports the inference that Ms Bloodsworth was not a party to an agreement to provide Mr Errington with assistance but that she was in fact being menaced by him. (That theme is reprised in Ms Bloodsworth’s conversation with Mr Petrovski at the gaol when she told him, referring to Mr Errington, “He said I was next, and I was forced to clean his clothes while he showered”.) Thirdly, the version given by Mr Rigley is evidence that Mr Errington was telling Ms Bloodsworth what he wanted her to do, not that she did it.

8. [32]

   It is also significant in my view to note that none of the evidence in the trial was attended by any particular controversy or doubt in the sense that different witnesses gave competing or inconsistent versions of the same critical event. Relevantly in this respect is the fact that neither Ms Bloodsworth nor Mr Errington gave or called any evidence. To that extent, the force of any advantage that the jury might have enjoyed in assessing the credibility of different witnesses or in coming to a view about what facts to find, an advantage that cannot be enjoyed by an appellate court, is substantially diluted in this case. Simply stated, I have a reasonable doubt that the evidence put before the jury was capable of proving Ms Bloodsworth’s guilt and as such it was a doubt that the jury ought also to have experienced.

9. [33]

   It follows that I consider that the verdict of the jury is unreasonable having regard to the nature and quality of the evidence.