Attwater v R; Maris v R

Background

1. To understand the parties' submissions on this ground it is necessary to recite some of the background leading up to the directions given by the trial judge.
2. Prior to counsel commencing their closing addresses there was extensive discussion between counsel for the respective parties and her Honour concerning whether the Crown was entitled to rely on lies alleged to have been told by the applicants as evidence of consciousness of guilt. It is unnecessary to go through this discussion in any detail, but her Honour expressed her initial conclusion in the following terms: "HER HONOUR: … Mr Crown so far as the consciousness of guilt issue and the way in which it was narrowed and left yesterday, I propose to allow the Crown to advance a submission to the jury that it is open to them as the Crown would submit to be satisfied that the accused's account to police in the second record of interview of Ms Daley's response to the act of intercourse with Mr Daley [sic]. That is in the course of it and up to and including the administering of CPR was an integrated course of deliberate lies told with the intention of concealing what he knew at that time. That is the time he gave the account to police as, I'm short circuiting this, but you understand the failure on his part to act in a timely way so as to ensure she was provided with appropriate medical care. Whilst I accept the way in which Ms Huxley has summarised that evidence in the various categories that were the subject of discussion yesterday, it would seem to me that to differentiate between the little bit of blood and the absence of pain as two distinct areas of a false account is somewhat artificial. What I will allow you to address the jury upon about which I will give them directions, is that his account from the time when he says he sees blood on his hand and what he says Ms Daley said about that. … So that account which is a progressive account of the hours form [sic - from] intercourse to what was ultimately her last conscious moments is available to you as consciousness of guilt. Lies, I am satisfied that it is open to the jury to find that that account is objectively untrue having regard to the cumulative weight and effect of the medical evidence inclusive of the issue of pain, the significance of her injuries, ultimately fatal injuries, the question of the rapidity and amount of blood lost and other matters that have been well travelled by the evidence. So if that is something the Crown wishes to go to the jury with then I will allow it. I am leaving it, obviously, in your hands Mr Crown as to how you express that but you understand the effect of the ruling. CROWN PROSECUTOR: Yes your Honour. HER HONOUR: Yes. The other lies that are attributed to Mr Attwater in Ms Huxley's document which is marked for identification in the proceedings now I think 61 isn't it. They are credibility lies and you will deal with them as you choose. That is not to confine your use of the consciousness of guilt lies so called only on the alternative manslaughter count. I'm not directly [sic] that you cannot use what you might submit to the jury as a false account generally as bearing upon whether or not there is anything in Mr Attwater's interviews that gives rise to the reasonable possibility of the Crown's failure to prove guilt in respect of the second count or the unlawful and dangerous act, manslaughter, as the primary basis as I understand upon which the Crown is seeking a verdict on count 1. Is there any residual issues of law in the way in which you will structure your closing submissions on Mr Atttwater's - "
3. The Crown Prosecutor then addressed. The first reference to lies appears to be in relation to the answer Attwater gave in his interview of 3 March 2011 which we have set out at [129] above. The reference was in the following terms: "CROWN PROSECUTOR: Now members of the jury on this issue, Mr Attwater is between a rock and a hard place, because you heard what he said there to a very clear question, 'Did Lynette make any sound did she say anything that would indicate to you that she was in any sort of pain or that something you had done or something Paul had done had hurt her?' 'No, no she was quite all right, she was all right. All right she didn't carry on or anything'. He said she was all right, said she was all right. She said, 'Don't worry it's all right'. Now that's a lie. If Ms Daley had cried out in pain there's no doubt that's the end of it. There's no doubt that that would indicate an absence of consent. Crystal clear undoubted proof. Mr Attwater says, 'No I thought she was all right and she said she was all right during the sexual intercourse', during the insertion, the repeated and vigorous movement of the hand into and out of her vagina for two minutes causing those lacerations. She said she was all right."
4. This part of the address did not suggest to the jury that they could use the lie as evidence of consciousness of guilt.
5. Thereafter, in dealing with the allegation of manslaughter by criminal negligence, the Crown Prosecutor made the following remarks: "So members of the jury just consider this. Remember those lacerations in exhibit AO, the lacerations you are familiar with and the bruising. Remember that Dr Lincoln's evidence that four and a half centimetre external laceration would have been painful even to walk, let alone be in the salt water. Remember this, at the time they have gone down to the water Ms Daley and Mr Attwater have gone down to the water at 5.30am Mr Maris is burning the mattress because it is soaked with Lynette Daley's blood as a result of, the Crown says, the sexual intercourse. So she suffered from these serious vaginal lacerations. She's in pain from walking because of the external lacerations. They've gone down to the water, he said to another person, to wash off the blood. The mattress is being burned because it contains - or was soaked with her blood. Then five minutes later, after she's in the water, she stopped breathing. So on that scenario and yet Mr Attwater says there's this conversation, 'Do you want to go for a swim? Yeah. Let's go for a swim?' Five minutes before she stopped breathing. The significant blood loss happens in that five minutes even though he doesn't notice any blood in the water. That story is just preposterous. Just simply a lie. It's inconsistent with the medical evidence about the fact that there was rapid and significant blood loss after, shortly after the sexual intercourse. It's a deliberate lie told by Mr Attwater to Detective Burke to conceal the fact that Mr Attwater had done nothing, nothing to preserve her life in a timely manner when he knew that she was seriously injured. Mr Attwater took Lynette Daley into the ocean in order to wash off her blood before making a desperate attempt to seek medical assistance for her by calling triple-0."
6. What was said in this part of the address was consistent with the ruling by her Honour of the extent it could be alleged by the Crown that lies said to have been told by Attwater evidenced consciousness of guilt.
7. The next day the Crown, in dealing with the applicant Maris' evidence, said the following: "CROWN PROSECUTOR: Yes, I'll read it. 'Well, she didn't object when I jumped in the back'. And then Mr Maris says this: 'Q. Was she talking or making any noises at that stage? A. I think she was moaning, yeah. Q. In what way? A. Well, like she was sort of enjoying it, yeah.' You heard Dr Lincoln's evidence about the excruciating pain, and did you hear a single question, a single question, challenging that? No. That evidence is just plain and simple a lie."
8. Once again, this part of the address did not invite the jury to reason that the lie alleged was evidence of consciousness of guilt.
9. In dealing with Maris' statement in his record of interview of 3 March concerning the reason he burnt the mattress (see [150]-[151] above), the Crown Prosecutor made the following remarks: "So the final slide I wanted to go to, the final slide altogether, is to do with what Mr Maris said in his record of interview, particularly the one on 3 March related to this issue. Because we say that what he said on that is just a tissue of lies. He said that he did not notice anything wrong with Lynette Daley until Mr Attwater told him she had collapsed in the water. He said he only burnt the mattress because it stunk. He said he did not notice any of Lynette Daley's clothes other than her bra on the mattress. He said that they stopped at site 3 to pull the mattress out and they were probably going fishing at the site. He said that Lynette Daley and Mr Attwater were in the water, cleaning themselves up and having a bit of a swim and he said he did not notice blood on Ms Daley's body until the ambulance arrived. … Members of the jury, the notion that Paul Maris burnt the mattress when it is dark because it stank and that happened to be the time when Mr Attwater is taking or Mr Attwater and Ms Daley are going down to the ocean to wash off her blood, or to wash or to go down to the ocean, I'll stop there, to go to the ocean, and that happened to be the time that five minutes later she has this so-called seizure and fit and stops breathing. It's just ludicrous. He knew when he burnt that mattress that she was, at a minimum, seriously injured."
10. On the following day (the 22nd day of the trial) there was further discussion between her Honour and counsel for the parties concerning the use that could be made of the alleged lies. The discussion, which is of some importance in considering whether there was a miscarriage of justice, was in the following terms: "HER HONOUR: Just give me one tick. Yes I can see why there's a middle course on the consciousness of guilt lies also. Because of the requirement which was presented for further argument yesterday as to whether the lies you attribute to him were told conscious of the offence of manslaughter by criminal negligence. It may be, and I'll just have to bite the judicial bullet, I may come to a different view as to whether I lead [sic - leave] them on that basis Mr Crown, their credibility lies therein anyway, CROWN PROSECUTOR: The one thing we have a firm position on is your Honour should not direct the jury that they have to be satisfied beyond reasonable doubt-- HER HONOUR: I don't have any quarrel with that because they just simply wouldn't fall to attract - if they're not consciousness of guilt lies there's no question that any standard of proof attaches to them. CROWN PROSECUTOR: Even if it's a consciousness of guilt-- HER HONOUR: But even if it is, you resist. CROWN PROSECUTOR: Absolutely. HER HONOUR: Yes. All right, well I understand that. But, I may come to a - I'll just have to have a think about it, I may come to a different decision than the decision I reached somewhat on the run the other day, I must say. CROWN PROSECUTOR: Is that about whether it's a consciousness of guilt lie. HER HONOUR: Yes. Yes. CROWN PROSECUTOR: I do of course in the closing-- HER HONOUR: You didn't go either way. CROWN PROSECUTOR: Well I didn't - no matter what way your Honour goes, I don't believe it would be infringed-- HER HONOUR: No, no. Mr Steel you take that view? STEEL: I do your Honour and given the address was some time ago, by the time your Honour directs anyway, it'd be lost on the jury anyway I think. I don't think it-- HER HONOUR: Consciousness of guilt lies are - otherwise they're in the absolutely starkest of cases, and you know our courts said blame was one of them, but - all right, I'll give some thought to that, but Mr Crown, let's settle up this last issue - "
11. The next day her Honour indicated that she would not give a consciousness of guilt direction. She made the following remarks: "Now, that may, given the issue require some further massaging, but that's pretty much my settled view. Mr Crown having regard - and Mr Steel - having regard to the further examination of the concept of the consciousness of guilt lies, that is the lies said by the Crown to have been told by Mr Attwater in relation to Ms Daley's demeanour and behaviour and attitude generally from the intercourse through to her death, I have bitten that bullet that keeps getting a mention. I'm not going to give a consciousness of guilt lies direction, I think Mr Steel if I may say, you're [sic - your] observation yesterday was right. The Crown skirted around it and over it without having even referred to the concept of consciousness of guilt so there's nothing that has been raised with the jury that I'm going to have to, in any way, countermand. I will, of course, remind the jury that the Crown says that Mr Attwater was not telling the truth in recounting his engagement with Ms Daley over the course of those hours but they'll be left as credibility lies only. Now the reason I've come to that different view is not so much that I don't hold to the view that they could be treated by the jury as consciousness of guilt lies, but really, that it will not aid in the ultimate disposition of the delivery of verdicts to overcomplicate what is already a complex set of directions. So that I hope, Mr Steel - obviously you're going to, if you care to, still deal with the fact that the Crown says that's all of those things - "
12. On the same day counsel for Mr Attwater commenced his address.
13. On the following day he made the following remarks to the jury: "Ladies and gentlemen, the Crown's case is really that Mr Attwater's account given to Detective Burke is false, that it was some sort of performance designed to conceal what actually happened. That seems to be the Crown case. And you will recall that before you can consider any alleged lie told by Mr Attwater, you need to determine whether or not he really did tell a lie. Well, to determine whether you think his account is a lie, you're required to use your common sense and really you need to consider a number of issues in this case and, in particular, I'd ask you to listen to Mr Attwater in the triple-0 calls, because these calls are really a time capsule of the events. It's the only real evidence that you have from that time when these events occurred. So that is really a bit of a time capsule, you might think. It records the reactions of Mr Attwater at that particular time. So, in the recording of the two calls, which is exhibit W, in the first call you mainly hear Mr Maris talking to the triple-0 operator and at this time Mr Attwater is trying to perform CPR on Ms Daley. But in the second call you can hear Mr Attwater speaking from time to time, some of which occurs during the period when Mr Maris left the phone on loud speaker while he went up the beach to get Mr Miller. Now, you can hear the desperation, I suggest, in Mr Attwater's voice. He says things such as, 'Oh this is not good.' He asks the triple-0 operator to tell him the right ratio of compressions to breath and when he doesn't get a clear answer, straight away he exclaims, 'What is it, man?' Several minutes into the second call Mr Attwater's desperation is clear. He's saying, 'Youse gunna save his life when you get down here or what?' The operator tells Mr Attwater to calm down, to which he responds, 'Pretty hard, fellows' and he is clearly finding it very difficult to keep his cool, you might think, in the face of these incredibly challenging circumstances."
14. Although it is to be noted that counsel for Attwater described the Crown's case as being that Attwater's account given to Detective Bourke was some sort of performance designed to conceal what actually happened, it is apparent from the passage to which we have referred above that the thrust of the address was that the jury should not accept that what Attwater said was a lie.

The directions

1. Her Honour gave written directions to the jury.
2. The directions in respect of lies were quite clear. So far as relevant they were in the following terms: "5 If you decide that the accused told police deliberate lies about the events that have become central to the charges they both face in this trial you cannot use that finding in support of a finding that they are guilty. A lie cannot prove the accused's [sic - accuseds'] guilt of any of the offences that [they] have been charged with. Neither can a lie be used in conjunction with the other evidence that the Crown relies upon to prove guilt. 6 If you are satisfied the accused have told lies to police, you can take that into account in your assessment of their credibility, that is, whether you accept the account they have given to police as honest and reliable."
3. This is a clear direction to the jury that lies could not be used as evidence of consciousness of guilt.
4. The relevant part of her Honour's summing-up was as follows: "[148] Another direction as you know ladies and gentlemen that is specific to this trial because you have got a document about it is the issue of lies. In this context, I am addressing you on the lies that the Crown Prosecutor invited you to find that each of the accused have told in the course of their interviews with police, first on 27 January and then when they were further interviewed in March, in each instance, of course, in 2011. [149] The Crown submitted that both of the accused have told you what you would be satisfied, ultimately, are deliberate lies and lies deliberately told in endeavouring, as the Crown would submit they both did, to account for what the Crown submits you would be satisfied is their criminal conduct during the course of that material 12 hours. … [157] The Crown submitted that in the case the Crown brings against Mr Maris on the second and third counts on the indictment, that Mr Maris lied when he said he did not notice there was anything wrong with Ms Daley at any time, until Mr Attwater told him that she had collapsed in the water. [158] That he lied when he said he only burnt the mattress because it smelt foul or stank. That he lied when he said he didn't notice any of Ms Daley's clothes on the mattress other than her bra. That Mr Maris had lied when he said that the three people stopped at site 3 because they [were] probably going to go fishing and that he pulled out the mattress at that time to burn it only because it smelt foul. [159] The Crown says Mr Maris lied when he said that Ms Daley and Mr Attwater were in the water cleaning themselves up and having a bit of a swim. That he lied when he said he did not notice any blood on Ms Daley's body until the ambulance arrived. [160] The Crown relies upon each of the accused telling deliberate lies and in the Crown case those specific lies exemplify and [sic - an] untruthful account of events. The Crown says in submission to you that were you to conclude that neither of the accused have given an honest account to police of the relevant events and in particular Ms Daley's state of health for some very many hours, you would for that reason give no weight at all to their account to police where each of them tell police that Ms Daley, in different ways of course that Ms Daley consented to sexual intercourse with each of them and, so far as Mr Attwater is concerned, that in his account to police, that there was nothing that he did to her to hurt her. [161] And of course he gives the further account that he had no knowledge of any state of ill-health until, after she walked into the water for a swim, she stopped breathing. Whether either of the accused have told lies, whether the lies the Crown identifies, or other matters that you consider are contradicted and positively by the evidence, is a matter for you to decide. Although neither of the accused have given evidence in their trial by becoming witnesses in their trial and you know from the direction I gave you on Friday, they are under no obligation at all to give evidence under oath or affirmation and become a witness in the trial, their account to police remains an account that you might if you care to, give consideration to in determining whether the Crown has proved their guilt beyond reasonable doubt or whether their account to police raises a reasonable doubt as to their guilt. Each of the defence barristers in their different addresses have urged you to accept that their client's account is inherently truthful and, to the extent that there might be mistakes made, any unreliability in their account is not because they are dishonest people, but because they are poor historians or confused because of the events of the night or their minds were muddled by alcohol and they were unable to recall events with sufficient clarity to account for themselves. [162] To decide that lies were told, that is deliberate untruths by either of the accused, you must be satisfied that what the accused told police in one or more aspects of their very lengthy interviews, was factually false and told deliberately as a factual untruth and that when the lie was told, the accused knew that they were telling factual untruths or, plainly and simply, that they knew they were lying. As I direct you, indeed consistently with Mr Steel's address to you and correctly, saying that something is untrue because of mistake or out of confusion or forgetfulness or a mind muddled by alcohol which is my way of describing it, is not a lie. It might impact upon you considering whether the accused [sic] account or either of them is reliable, but that is a different consideration altogether. The Crown is not bringing a case against either of these accused because the Crown says what they told police is unreliable. The Crown says that their account to police is untrue in very major respects and the Crown says that the accounts were given by the accused in order to minimise or indeed, falsely account for what they well knew by the time they were interviewed was their criminal responsibility for some of the events of the night and, of course, they are in this trial charged with different offences arising out of the events of the night. I repeat again, to the extent that anyone is in any doubt about it, you cannot use a lie, were you to find either of the accused told a lie about something, to prove any part of the Crown case against the other accused. The lies, if you find them proved, do not cross pollenate. So again, remember that it is critical that you give your separate consideration to the lies as the Crown alleges they were told by each of the accused. [163] That said, ladies and gentlemen, even were you [sic] satisfied that the accused has told or either of them have told deliberate lies about the events that are central to the charges they face in this trial, you cannot use that fact alone in support of a conclusion that they are guilty. A lie alone cannot prove the accused's guilt of any of the offences that they have been charged with. Neither can a lie be used in conjunction with other evidence that the Crown relies upon. The Crown has mounted the submission that the accused have told lies, and deliberate lies, because the Crown submission to you is you will give their account of events absolutely no consideration in your deliberations to verdict. The Crown did not advance the submission because he would not have been permitted to advance the submission and as a member of senior counsel, the Crown would not have advanced the submission that you can use any of the lies, even were you to find them proved, to ground or found or underpin the Crown case against them. The lies are relied upon by the Crown for a different reason and that is to seek to persuade you, as the Crown has sought to persuade you, that you will give no weight to the accused's account of their dealings with and involvement with Ms Daley and in her company over that critical 12 hours, 9 hours when you narrow it into to [sic] include from the time of intercourse to the time of death. I use that very, very loose timeframe but I think you know what I mean. … [179] It is critical that you do not leap, because it would be illogical to do so, from finding that the accused has lied, if you were to come to that conclusion, to leap immediately to the conclusion that the Crown has proved guilt beyond reasonable doubt. In order for you to be satisfied in respect of either of the accused, that their guilt has been established beyond reasonable doubt, would be because you are satisfied that the essential legal elements of each of the offences with which they are charged are proved beyond reasonable doubt. Ladies and gentlemen, because you are going to be given some documents to go out with you at lunch, and you know from the document that the Crown gave you in the course of his opening address, there is not one element of any of the offences with which the accused are charged which comprises a lie. They are legal elements. Now the question as to whether or not there is evidence from the accused that you can rely upon in coming to consider whether guilt has been proved beyond reasonable doubt is another thing altogether. [180] So do not be distracted by the contest between the parties about lies. Nonetheless, those issues are before you because of the way in which the trial has been conducted. And as I say, and I remind you, you have the Crown saying in his submissions that you will find the accused have given untruthful accounts to police and you have Mr Steel, on behalf of Mr Attwater, contending in his submissions that you would be satisfied that two witnesses have told lies on their oath to wrongly implicate Mr Attwater in the criminal conduct with which he is charged. So lies have that operation but you must be astute not to allow that aspect of the contest between the parties to overwhelm what is essential for your ultimate verdicts, which is whether the Crown has proved guilt beyond reasonable doubt, that is proof of the essential elements of each of the offences with which the accused are charged, beyond reasonable doubt."

The submissions on behalf of Attwater

1. The written submissions filed on behalf of Attwater referring to Edwards (at 209) stated that a lie can only be evidence probative of guilt if it is deliberate, relates to a material issue, and is explicable only on the basis that the truth would implicate the accused in the offence for which he or she was charged. The submissions also emphasised that it was necessary for the Crown to distinguish between lies relied upon to attack credibility and those relied on as evidence of consciousness of guilt.
2. The written submissions also referred to the direction said by the plurality in Edwards to be required where there was reliance on lies as evidence of consciousness of guilt. The relevant part of the judgment (at 210-211) is in the following terms: "A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg. v. Lucas (Ruth), because of 'a realisation of guilt and a fear of the truth'. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect."

The submissions on behalf of Maris

1. In written submissions filed on behalf of Maris it was pointed out that lies formed an important part of the Crown's address. It was submitted that a large part of the Crown's address involved taking the jury through Maris' record of interview and submitting that he was lying. In particular, reference was made to that part of the Crown's address to which we have referred at [233] above.
2. In that context, reference was made to paragraphs 157-159 of the summing-up (see [242] above) where the trial judge summarised the submissions on the lies said to have been told by Maris. Reference was then made to that part of paragraph 162 of the summing-up of which Attwater complained (see [248] above), and it was submitted that what was said amounted to a direction that the Crown case was that the lies told by Mr Maris were told out of a consciousness of guilt. It was submitted that there were two dangers. First, what was said at paragraph 162 of the summing-up was not accompanied by an Edwards type direction and, second, the direction did not delineate between the counts to which the Crown alleged the lies were directed.
3. It was also submitted, referring to R v Toia Siulai [2004] NSWCCA 152 ("Toia Siulai"), that the statement by the trial judge in paragraph 179 of the summing-up, namely, that if the jury found that the applicant lied it was critical that that should not "lead immediately to the conclusion the Crown had proved guilt beyond reasonable doubt", suffered from the flaw that different credibility findings arose in relation to each applicant.
4. At the hearing, senior counsel for Maris adopted the submissions made by senior counsel for Attwater, stating that the complaints applied equally to his client. He emphasised that what occurred would have left the jury in a state of uncertainty. Referring to R v Sutton (1986) 5 NSWLR 697 at 701 he emphasised the danger of miscarriage in this area.

a Written submissions in respect of Attwater

1. The Crown emphasised that the impugned passages at paragraphs 149 and 162 of the summing-up, which we have set out at [242] above, were a recording of the prosecutor's submissions and not a direction of law. He pointed out in his written submissions that earlier in the summing-up the trial judge had told the jury that submissions by counsel were not evidence. As a consequence, it was submitted that the passages complained of did not involve a misdirection by the trial judge.
2. It was submitted that what was said at paragraph 149 of the summing-up did not involve consciousness of guilt reasoning but, rather, was an introduction to the issue of lies. He submitted that the statement that the jury "would be satisfied [of] their criminal conduct" was a reference to the ultimate submission that the jury would find the applicants guilty.
3. The Crown also submitted that the passage in paragraph 162 of the summing-up did not raise consciousness of guilt reasoning. Referring to Rend v R [2006] NSWCCA 41, it was submitted that a statement that an accused was "distancing" himself from knowing about the offence did not require a direction in accordance with either Edwards or Zoneff v R (2000) 200 CLR 234; [2000] HCA 28 ("Zoneff"). It was submitted that that was consistent with what was said by Basten JA in Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385 at [131]. Further, it was submitted that the jury were expressly given directions as to how they could use the lies, referring to paragraphs 163 and 179 of the summing-up. In relation to the submission that the sentencing judge did not expressly criticise the consciousness of guilt reasoning, the Crown referred to the fact that immediately after the passage in paragraph 162 of the summing-up, of which complaint was made, the sentencing judge expressly warned the jury against consciousness of guilt reasoning.
4. In relation to the complaint that there was no reference to the protective part of the consciousness of guilt direction in Edwards, the Crown submitted that there was no requirement for such a reference as neither the trial judge's directions nor the recording of the Crown's submissions invited consciousness of guilt reasoning.
5. In relation to the complaint that the impugned paragraphs of the summing-up did not distinguish between the two charges and thus raised the possibility of consciousness of guilt reasoning in respect of both offences, the Crown repeated its submission that the impugned paragraphs did not involve consciousness of guilt reasoning. Further, it was submitted that even though her Honour had initially ruled that the Crown could rely on certain lies as evidence of consciousness of guilt, the Crown did not do so.

b Written submission in respect of Maris

1. The Crown repeated its submission that the impugned portion of paragraph 162 of the summing-up (see [242] above) was a summary of the Crown's address, not a direction of law. It was emphasised that no part of the Crown's closing address raised consciousness of guilt reasoning in respect of Maris.
2. In relation to the Crown's reliance on Toia Siulai, the Crown submitted that, unlike that case, the trial judge had expressly stated at paragraph 163 of the summing-up that a finding that the applicants had told lies could not support the Crown case and simply meant that the accused's evidence was simply to be given no weight on the question of guilt. The Crown also referred to the fact that paragraph 179 of the summing-up repeated the direction that it was a matter for the Crown to establish guilt beyond reasonable doubt.
3. In relation to the absence of an Edwards type direction, the Crown submitted that no such direction was required. It was also submitted that there was no prospect that the failure to distinguish between the charges in relation to the direction on lies would mislead the jury in any way.
4. Finally, it was submitted that r 4 of the Criminal Appeal Rules applied.

c The Crown's submissions at the hearing

1. At the hearing the Crown focused on the events which occurred on the 22nd day of the trial to which we have referred at [234] above. The Crown stated that the remarks made by the trial judge, the prosecutor and counsel for Attwater indicated that what had been said previously by the Crown was not troubling so far as consciousness of guilt reasoning was concerned. The Crown noted in that context that the Crown Prosecutor's statement "no matter what way your Honour goes, I don't believe it would be infringed", and counsel for Attwater's comment "by the time your Honour directs anyway, it'd be lost on the jury anyway" suggested that both parties formed the view that no difficulty would arise if the trial judge reversed her previous ruling. It was submitted that this was supported by the fact that no objection was taken on the impugned part of the summing-up and no redirection sought. The Crown also submitted that that part of the Crown address to which we have referred at [229] above did not involve consciousness of guilt reasoning.
2. The Crown also emphasised that no Edwards direction was sought, stating that that was understandable as it would have undermined the applicants' case, which was that what the applicants told the police were not lies.
3. The Crown also submitted that, in light of what was said on the 22nd day of the trial along with a failure to seek a redirection, r 4 of the Criminal Appeal Rules applied.

Consideration

1. In Zoneff the Court warned against giving Edwards directions when it was unnecessary. The plurality made the following remarks: "[16] There may be cases in which the risk of misunderstanding on the part of a jury as to the use to which they may put lies might be such that a judge should give an Edwards-type direction notwithstanding that the prosecutor has not put that a lie has been told out of consciousness of guilt. As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron JJ in Edwards, 'the accused knew that the truth ... would implicate him in [the commission of] the offence' and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours and, for the sake of clarity, should be included in the statement of principle.) [17] Moreover, if there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged." See also Dhanhoa v R (2003) 217 CLR 1; [2003] HCA 40 at [34].
2. In the present case the applicant accepted that, apart from the passage referred to at [229] above, the Crown in its address did not invite the jury to adopt consciousness of guilt reasoning. In circumstances where it appeared to have been accepted in the interchange to which we have referred at [234] above that the Crown address had not in any material manner traversed the amended ruling, there was in our view no need to give an Edwards direction consequent upon that change of ruling.
3. It remains to be considered whether the summing-up of the trial judge had the effect of inviting the jury to adopt consciousness of guilt reasoning. We do not think that it did.
4. In considering that issue it must be remembered that at the outset of her Honour's summing-up on the question of lies, the trial judge expressly referred to her written directions on the topic (see paragraph 148 of the summing-up at [242] above). The written directions clearly and correctly instructed the jury that they could not use lies as evidence of guilt.

Ground 2: The Convictions are Unreasonable and Unsupported by the Evidence

The Submissions of the Applicant Attwater

1. The applicant argued that count 2, the charge of aggravated sexual assault in company, was not capable of proof and, with this charge underpinning the Crown case, it was submitted that it was not reasonably open to the jury to return verdicts of guilty to either of the charges brought against him. His contention was that there was insufficient evidence to permit the jury to conclude that, either, the deceased did not consent to sexual intercourse with him; or, if it were found that she did not consent, that he could have known that. If that proposition is accepted, it follows that the conviction for manslaughter is also flawed, as there was no unlawful and dangerous act; or, alternatively, the evidence was insufficient to support a conviction for manslaughter on the basis of criminal negligence.
2. Without direct evidence of absence of complaint, the Crown at trial pointed to the complainant's intoxication to establish that Ms Daley did not or was not able to consent to intercourse, together with the severity and painfulness of the injuries occasioned to her, as underlining the absence of consent. The applicant submitted that the evidence to establish Ms Daley's level of intoxication, and the effect of the alcohol on her, was insufficient for the jury to conclude that consent had not been given to the sexual act. The applicant pointed to what was said to be the absence of evidence to establish: 1. the quantity of alcohol consumed by Ms Daley after leaving IIuka and before her death; 2. The timing and quantity of her consumption of alcohol after 6pm on 26 January; 3. The time of Ms Daley's last drink; 4. The rate at which she absorbed and eliminated alcohol on the night of 26-27 January 2011; and 5. the actual effect of alcohol on her given her likely higher tolerance.
3. It was argued that the evidence of witnesses who saw Ms Daley in Iluka on the evening of 26 January 2011 took the matter no further, leaving a complete state of uncertainty as to the extent and effect of intoxication.
4. The evidence of Dr Perl as to Ms Daley's likely intoxication was contrasted unfavourably with that of Professor Christie by the applicant. It was argued that Dr Perl's evidence was adversely affected by an "error" in the chronology of events given to the doctor by the Crown, and an inadequate recitation of the evidence of Iluka witnesses, with a failure to refer to evidence that pointed to a greater capacity on Ms Daley's part undermining the validity of Dr Perl's opinion. It was submitted that the evidence to which Dr Perl was not taken in evidence arguably demonstrates the deceased's more responsive and purposeful behaviour when at Iluka, conduct not supporting her incapacity to consent to sexual activity.

The Submissions of the Applicant Maris

1. The principal argument advanced by the applicant Maris was that, the Crown case against him being based almost entirely on his account of relevant events to police, it was not open to the jury to accept his account of having had sexual intercourse with Ms Daley, but not his account of her consent (conveyed by a movement of her body) and of his belief that she did consent and "wanted it".
2. He pointed to the same asserted inadequacies in the evidence relied upon by the Crown to establish that, either, Ms Daley was stuporous or unconscious at the time sexual intercourse took place, or that she was so intoxicated as to be unable to freely and voluntarily consent. He argued that this evidence was flawed, and incapable of establishing absence of consent.
3. It was impermissible for the jury to accept as a truthful account his admission to sexual intercourse, but reject as lies those things he described which established consent to intercourse.

The Submissions of the Crown - Attwater

1. Referring to the principles to be applied with respect to a ground asserting that a verdict or verdicts were unreasonable and unsupported by the evidence, the Crown submitted that there was a considerable body of evidence to support the jury's verdict with respect to each count.
2. The Crown argued that it was open to the jury to conclude that the sexual act was one of "fisting", as the applicant Attwater told D/S Burke in the first of his recorded interviews, and as he had told the ambulance officer Mr Jarrett, and his friend Ms Norman; and repeated "fisting" of a vigorous nature.
3. The truthfulness of these admissions was supported by the expert medical evidence, which was firmly to the effect that the most likely cause of the significant injuries inflicted on Ms Daley was the insertion of a fist, with some force. The medical evidence did not support the truthfulness of the more anodyne version later given by the applicant to police, of a relatively gentle insertion of one, two, three and then four fingers into Ms Daley's vagina.
4. There was also clear evidence to support a conclusion that Ms Daley was either unconscious or so intoxicated that she was not capable of freely and voluntarily consenting to the particular act of sexual intercourse that took place, that being the insertion of the applicant's fist or hand repeatedly and vigorously into her vagina, or that she did not freely and voluntarily agree to sexual intercourse.
5. The nature of the act of sexual intercourse was an important consideration when assessing evidence relevant to the lack of consent. To account for the severe injuries inflicted on Ms Daley, the act of intercourse must have been forceful. That in turn pointed to a conclusion reasonably open to the jury that Ms Daley was either unconscious, which would explain the applicant's account of her not crying out in pain; or that she was so intoxicated that her ability to perceive what was happening around and to her, and her ability to understand the consequences of it, was so profoundly impaired that she did not freely and voluntarily agree to the particular act of sexual intercourse.
6. Further evidence of an absence of consent was to be found in the medical evidence of Dr Cala and Dr Lincoln of "fingertip" bruising on Ms Daley's upper, inner thighs, which suggested that her thighs had been held firmly apart, an act that would only have been necessary if Ms Daley were not freely and voluntarily consenting to and participating in the act of intercourse.

The Submissions of the Crown - Maris

1. The Crown relied upon the same arguments with respect to the jury's verdict concerning count 2, the charge of aggravated sexual assault. That is, there was an abundance of evidence to establish that Ms Daley was unconscious, in an alcohol induced stupor, or otherwise so heavily intoxicated that she either did not consent to an act of oral intercourse, or could not freely and voluntarily consent to it.
2. On Maris' account to police, Ms Daley continued to drink after arriving at the beach after the trip to Iluka and, that being so, her blood alcohol level was likely to have been much higher than it was at the time of her death, as high as 0.46 grams per 100 millilitres of blood.
3. Maris, being well aware of Ms Daley's considerable and virtually continuous consumption of alcohol over an extended period was at least reckless as to her consent.
4. The verdict of guilty to this charge was well open to the jury.
5. As to count 3, the hinder offence, there was a significant body of evidence to support the integrity of the verdict of guilty. The evidence established that Ms Daley did not or could not consent to intercourse and that Maris knew or was reckless as to this. By his own admission he was aware that Attwater had "fisted" Ms Daley, since he saw it occurring. He was also aware that she was bleeding, as he told others that there had been "blood everywhere". Against that background and noting the evidence as to the timing of the fire, the only reasonable inference available is that Maris burnt the mattress and Ms Daley's bra intending to destroy evidence of the act done by Attwater that had caused Ms Daley's death. His account of having decided to burn the mattress because it smelled was implausible.

Determination

1. A ground of this nature, which seeks to challenge the reasonableness of the verdicts returned by the jury, falls to be determined in accordance with well settled law. That law is cumulatively derived from M v The Queen (1994) 181 CLR 487; [1994] HCA 63, SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, and Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30, as applied and explained in Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12.
2. Those principles require this Court to make an independent assessment of the evidence led at trial to determine whether the verdicts returned by the jury were reasonably open. As the High Court said in M v The Queen, at 493: "Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty".
3. In undertaking that task, the primacy of the jury as the body constituted to determine the verdicts to be returned in a criminal trial must be borne in mind. Setting aside a jury's verdict as unreasonable is a most serious step to take, as the High Court said in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]: "It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is 'the constitutional tribunal for deciding issues of fact'. Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is 'unreasonable' within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court 'must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.'" [footnotes omitted].

Conclusion on Ground 2

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

Conclusion - Conviction Appeals

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

THE PROPOSeD Sentence appeals

1. In his notice of appeal, the applicant Attwater seeks leave to appeal on the following grounds: 1. The sentencing judge made factual errors about: (i) The deceased's level of intoxication at the time of intercourse; and (ii) The appellant's state of mind at the time of intercourse. 2. The sentencing judge failed to take into account the fact the offences were not planned or organised. 3. The sentencing judge erred in her assessment of the seriousness of the manslaughter offence by failing to consider the appellant's subjective appreciation of the dangerousness of his unlawful act. 4. The sentencing judge took into account an irrelevant consideration when determining the significance of delay. 5. The sentencing judge's refusal to take into account extra-curial punishment as a mitigating factor was unreasonable. 6. The sentencing judge erred in failing to find that the appellant's post-offences ameliorative conduct entitled him to some mitigation on sentence. 7. The sentencing judge erred in her findings about the appellant's rehabilitation prospects and likelihood of re-offending. 8. The Sentence is manifestly excessive. At the hearing of the appeal, Attwater abandoned ground 1(ii).
2. The applicant Maris seeks leave to appeal on the following grounds: 1. Her Honour erred in not taking into account the fact that the offences were not planned or organised. 2. The aggregate sentence imposed on the appellant was manifestly excessive.
3. The two grounds upon which Maris seeks leave to appeal are two of the grounds contained in Attwater's grounds of appeal. It is convenient, therefore, to deal with the grounds together using Attwater's grounds as the template.

Ground 1: The sentencing judge made factual errors about:

(i) The deceased's level of intoxication at the time of intercourse;

1. The issues forming the basis of this ground arose from the need that her Honour discerned (at [35], [36] and [39] of her sentence judgment) to determine whether Ms Daley's consent to sexual intercourse was negatived because the extent of her intoxication rendered her unconscious (as provided for in s 61HA(4)(b) of the Crimes Act, or whether there was a reasonable possibility that she was conscious at the time of sexual intercourse but that she did not freely or voluntarily consent to intercourse because her level of intoxication was substantial. Her Honour said (at [39]) that the resolution of that question would have an obvious and direct bearing on the assessment of objective seriousness of both the offences for which the applicant Attwater was to be sentenced.
2. Her Honour said (at [40]) that another question she needed to resolve, which bore on an assessment of an objective seriousness, was whether she was satisfied beyond reasonable doubt that Attwater could have had no honest belief that Ms Daley was consenting to sexual intercourse with him, or whether she should accept the reasonable possibility that Attwater genuinely believed Ms Daley was consenting to sexual intercourse, accepting as Attwater acknowledged he must, that the belief was not held by him on reasonable grounds.
3. Her Honour's finding at [81] was: …I am satisfied that if Ms Daley were not unconscious when he inserted his hand or fist into her vagina, she was so profoundly affected by alcohol at that time that both her capacity for any coordinated physical movement as a willing partner in sexual intercourse, and any responsive levels of cognition or reasoning would have been so severely compromised that it would have been obvious to anybody in her company who was paying her due attention and regard that she could not freely and voluntarily consent to intercourse.
4. The applicant Attwater submitted that this finding as to the deceased's level of intoxication of the time of the sexual intercourse was not open on the evidence at trial because that evidence involved unknown factors or "imponderables" not capable of resolution.
5. He relied also on submissions made in support of the ground of appeal asserting that the verdict was unreasonable as far as the deceased's level of intoxication was concerned. Those submissions are set out earlier in this judgment at [288] to [301]. She pointed in particular to the fact that the sentencing judge appeared to have adopted what she described as the Crown prosecutor's erroneous and misleading chronology of the observations made of the deceased at Iluka on 26 January 2011. This was the chronology put to Dr Perl in her evidence as follows: CROWN PROSECUTOR: Q. In relation to - I just want to ask you some questions about the material or the statements you got from witnesses who had observed [the deceased] and I'll just focus on 26 January. So you saw - do you recall, and I'll just do this roughly chronologically, that a witness, Mr Peglar, saw [the deceased] to be intoxicated about 3.30pm on the twenty-sixth stumbling around? [emphasis added by applicant's counsel] DR PERL: A. Yes. Q. At about 4.30pm a Mr Gallagher saw [the deceased] pretty well intoxicated. Her eyes were glazed, her head was nodding, her eyes were a little shut and every so often she'd giggle, is that correct? [The applicant said this was likely to have been at about 5.30pm: Raymond Lester, T, 2/8/17, p.210] A. Yes. Q. He described her level of intoxication as being, "quite near high"? A. Yes. Q. At about 5.30pm a Mr Lester observed [the deceased] outside the Foodworks store appearing to be unsteady on her feet, well affected by alcohol, a high degree of intoxication? A. Yes. Q. At 6pm on 26 January a Ms Collett who worked in Foodworks saw [the deceased] appear to be well affected by alcohol and unsteady on her feet? A. Yes. Q. A Ms Kennedy also worked at Foodworks observed her at the counter to be intoxicated, do you recall that? A. Yes. Q. Ms Kennedy said, "Hello, how are you today" and [the deceased] looked at her blankly, did not acknowledge her at all, didn't respond, do you recall that? A. Yes. Q. Then somewhere between 5.30 and 6 Mr Newton, also outside Foodworks saw [the deceased] - observe[d] [the deceased] to be "very, very intoxicated"? A. Yes. Q. She didn't really know where she was. Her head was down her chin with her hair over her face? A. Yes. Q. When Mr Maris said, "Can you drop this thing down the road" she lifted her head and said, "Huh"? A. Yes.

Determination

1. It is not necessary, for the purposes of determining this ground of appeal, to enter into the debate about the powers of this Court when a challenge is made to fact finding by a sentencing judge. The traditional test, set out in R v O'Donoghue (1988) 34 A Crim R 397 at 401, may be stated as being that a finding was not open to the sentencing judge: Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278; (2015) 213 LGERA 220 at [2] and [26]; see also Gibson v R [2019] NSWCCA 221 at [2]-[5] (per Bathurst CJ) and [57]-[61] (per N Adams J, Beech-Jones J agreeing). The present ground of appeal is put on the basis that her Honour's finding at [81] of her judgment was not open on the evidence.
2. The applicant Attwater accepts that he should be sentenced on the basis that the deceased did not freely and voluntarily consent to intercourse because she was substantially intoxicated by alcohol. It may be seen from our summary of the evidence of both Dr Perl and Professor Christie at [206] to [222], and our analysis of that and the other evidence touching on the deceased's level of intoxication at [331] to [367], that her Honour's conclusion at [81] of her judgment was open to her. The evidence of both Dr Perl and Professor Christie also demonstrates that the way the chronology was put to Dr Perl by the Crown Prosecutor was not a material matter for the conclusions that each reached as to the level of the deceased's intoxication.
3. Further, it is not demonstrated in the present case that the sentencing judge gave weight to a fact not proved in evidence, nor that her Honour acted on a wrong principle (Hordern v R [2019] NSWCCA 138; (2019) 278 A Crim R 353 at [13]), so that even if the more liberal test for factual review were applied here, error would not be established.
4. We reject this ground.

Ground 2: The sentencing judge failed to take into account the fact the offences were not planned or organised (also ground 3 in Mr Maris appeal)

1. Both applicants drew attention to the submission made by the Crown at the sentence proceedings that the sexual offence was mitigated pursuant to s 21A(3)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") because the offence did not involve planned or organised criminal activity. The applicants submitted that they also identified a lack of planning as a mitigating factor. The applicants submitted that her Honour did not expressly refer to that factor when sentencing them.
2. The Crown submitted that it does not necessarily follow from a failure to make express reference to certain statutory factors that the sentencing judge overlooked them or erred in determining the sentence to be imposed. The Crown submitted that the matter should be tested by examining the ultimate sentence imposed to see if it is manifestly excessive.
3. The Crown submitted that it was readily apparent that no planning was involved, and that her Honour did not find that the applicants took the deceased to Ten Mile Beach to assault her sexually or kill her. In that way, the fact that the offences were not planned or organised was of little moment, and the Court should conclude that her Honour did not fail to take the matter into account. The Crown submitted that, in any event, in the circumstances of the offending, the fact that the offences were not planned or organised did not provide for substantial or even moderate diminution of the penalty to be imposed.

Determination

1. Although it would ordinarily be expected that the sentencing judge would refer in his or her sentencing remarks to any submissions made by an offender suggesting that an offence was mitigated pursuant to s 21A(3) of the Sentencing Act or otherwise, it will not necessarily be error if no reference is made to the matter. All of the circumstances of the offending need to be considered. Error is more likely to be demonstrated if there is a dispute as to whether the mitigating factor is present.
2. In the present case, all parties agreed in their written submissions that there was no planned or organised criminal activity. There was no suggestion in the evidence at the trial of any plan or intention on the part of the applicants to take the deceased to the places where they went in order to sexually assault her. Indeed, at the sentence proceedings, when the matter of intoxication was being debated, her Honour expressly noted (T 37, 8/11/17) that it was not put against Mr Attwater that he became drunk to facilitate any pre-planned sexual assault of the deceased.
3. In those circumstances, it cannot be reasonably suggested that the sentencing judge did not take into account that the offences were not part of a planned or organised activity. We would reject this ground in each of the applicant's appeals.

Ground 3: The sentencing judge erred in her assessment of the seriousness of the manslaughter offence by failing to consider the appellant's subjective appreciation of the dangerousness of his unlawful act.

1. The applicant Attwater submitted that the dangerousness element in the form of manslaughter for which he was sentenced comprehends the full spectrum of subjective states of mind. At one end of the spectrum it was submitted that the offender might have had no, or very little, appreciation of the objective danger and that, at the other end, the offender might have fully appreciated the danger so that the position was just short of reckless murder. Attwater submitted that an assessment of the offender's state of mind must be made because an offender's subjective appreciation of his or her act is a factor that can inform his or her moral blameworthiness. In many instances, it was submitted, an offender who appreciates the danger to which he or she is exposing the victim will be more morally culpable than an offender who does not so appreciate the danger.
2. Attwater submitted that he was not prosecuted for the intentional or reckless infliction of actual bodily harm because he was not charged with an offence contrary to s 61JA(1) which has as an element the intentional or reckless infliction of actual bodily harm. It was therefore necessary to sentence Attwater for manslaughter on the basis that he had not intentionally or recklessly inflicted the injuries, so that the only consistent finding available was that he did not subjectively appreciate that his unlawful act was objectively dangerous in the sense of exposing the deceased to the risk of serious injury. The applicant Attwater submitted that her Honour's reasons showed that she did not take this material consideration into account.
3. The Crown submitted that there was no basis for her Honour reducing the sentence imposed on account of the absence of the factor of intentionally or recklessly inflicting actual bodily harm. The Crown submitted that in the absence of the applicant being charged with an offence under s 61JA, all that could be concluded was that he did not subjectively appreciate the dangerousness of the act. It was not necessary for her Honour to say anything else.

Determination

1. In her sentencing judgment, the sentencing judge first noted (at [28]) that the agreed position on sentencing was that Attwater should be sentenced for the deceased's manslaughter on the basis of an unlawful and dangerous act. Her Honour said in relation to the objective seriousness of the manslaughter at [113]: The objective seriousness of the manslaughter offence is, on any view, an example of manslaughter by an unlawful and dangerous act in the upper end of the range of seriousness for manslaughter committed in that way. I was not invited by any of the parties to consider any comparable cases and have not undertaken that exercise myself. Suffice to say that the extent of the lacerating vaginal injuries, the circumstances in which they were inflicted and the resultant hypovolemic shock from the progressive loss of blood from Ms Daley's untreated injuries are a dominating feature of the objective seriousness of that offending. I am satisfied it is an offence of extreme objective seriousness reflecting a high level of moral culpability.
2. The applicant's challenge in this ground is, with one qualification, a challenge to the sentencing judge's assessment of the objective seriousness of the offence. The qualification is that what appears to be asserted is that the sentencing judge failed to take into account a relevant consideration, namely, the applicant's subjective appreciation of the dangerousness of the unlawful act.
3. The starting point is what was said by this Court in Mulato v R [2006] NSWCCA 282 at [37]: The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.
4. Her Honour had earlier made a number of findings in relation to the sexual intercourse engaged in by Attwater with the deceased. It was that sexual intercourse which constituted the dangerous act element of manslaughter. These findings were: [81] … I am satisfied that if Ms Daley were not unconscious when he inserted his hand or fist into her vagina, she was so profoundly affected by alcohol at that time that both her capacity for any coordinated physical movement as a willing partner in sexual intercourse, and any responsive levels of cognition or reasoning would have been so severely compromised that it would have been obvious to anybody in her company who was paying her due attention and regard that she could not freely and voluntarily consent to intercourse. [85] In light of what I am further satisfied from the medical evidence was the rapid, immediate and either profuse or significant bleeding on the infliction of the vaginal injuries (at least until the natural effect of blood clotting operated to stem blood flow without stopping it entirely), there is no room for doubt in my mind that Ms Daley would have suffered the progressive and predictable symptoms of blood loss, although given her compromised state of consciousness at and after intercourse, it is clear that what would otherwise have been experienced by her as dizziness, light headedness, confusion, sleepiness and quickness of breath would not have been felt. That said, the amount of blood shed on the infliction of the injuries and progressive loss of blood as she bled to death would have been obvious were Mr Attwater paying her the slightest attention. [96] … [H]e must be taken to have known [the deceased] could neither consent to intercourse in that way (or at all for that matter), or manoeuvre herself to accommodate penetration of her vagina with his hand or fist. Further, as the Crown submitted, he must be taken to have known that Ms Daley was not only unable to offer any resistance to intercourse but were she to have sensed the risk of injury or experienced pain she would have been unable to make that known to him. [97] … I am satisfied beyond reasonable doubt that he did use his fist in the course of the non-consensual act of sexual intercourse in the way I have explained. I am also satisfied beyond reasonable doubt that because Ms Daley's consent to sexual intercourse was effectively negatived because of the extent of her intoxication, he must have known she was not freely or voluntarily consenting. However, despite his awareness of that fact, I am satisfied he commenced and continued to penetrate her vagina forcefully, vigorously and repeatedly in the process of which he caused the injuries from which she died. (emphasis added)

Ground 4: The sentencing judge took into account an irrelevant consideration when determining the significance of delay

1. The applicant Attwater submitted that the sentencing judge took into account an irrelevant consideration when considering delay, namely, the harmful impact on the deceased's family caused by the DPP's delay in prosecuting. Attwater submitted that although the sentencing judge acknowledged that the delay was caused solely by the DPP and not by either of the applicants, her Honour took into account the harmful impact of delay on the deceased's family. Attwater submitted that such a circumstance could not inform the question of punishment.
2. The Crown submitted that the weight to be given to a factor in sentencing was a matter for the sentencing judge's discretion and would ordinarily only be considered in respect of a ground alleging manifest excess. The Crown submitted that the sentencing judge accepted that the delay in the prosecution of the applicants operated unfairly on them, and it was open for her Honour to find that moderate weight only should be given to that delay.
3. The Crown submitted that the sentencing judge did not take into account the delay and its effect on the deceased's family when considering the question of delay in relation to the sentence. Rather, her Honour made clear by her reference to s 3A(g) of the Sentencing Act that she could only have regard to the harmful impact of the deceased's death as was reasonably foreseeable by Attwater. There were two matters which were reasonably foreseeable, being the circumstances in which the fatal injuries were inflicted, and Attwater's knowledge of the deceased's family situation. The Crown submitted that her Honour accepted that the impact of the delay on the deceased's family was not a matter that could be regarded as reasonably foreseeable by Attwater.

Determination

1. Her Honour dealt with the issue of delay in her sentencing judgment on Sentence from [174] to [200]. The issue arose in this way. On 19 April 2011 the applicant Attwater was charged with aggravated sexual assault and manslaughter. On 21 April 2011 the applicant Maris was charged with aggravated sexual assault and being an accessory after the fact to manslaughter.
2. On 12 March 2012 the DPP directed that no further proceedings be taken in respect of any of the charges against either of the applicants.
3. In August and November 2014, a coronial inquest into Ms Daley's death was held at Grafton Local Court. On 27 November 2014 the State Coroner referred the matter to the DPP pursuant to s 78 of the Coroner's Act 2009 (NSW). Section 78 operates so that, where the Coroner is of the opinion that the evidence adduced in a coronial hearing is capable of satisfying a jury that a known person has committed an indictable offence of a kind which raises the question whether the person has caused the death of a person, and there is a reasonable prospect that a jury would convict the person of that offence, the Coroner must refer the matter to the DPP.
4. Following receipt of the referral by the Coroner, the DPP directed that no criminal proceedings would be instituted against either of the applicants for the indictable offences that were the subject of the Coroner's referral.
5. In February 2016 the New South Wales Attorney-General requested that the DPP review his decision that no criminal proceedings would be instituted against either or both of the applicants. There was no response to that request before the airing of an ABC Four Corners program concerning Ms Daley's death. On 11 May 2016 the DPP issued a media release saying that he had sought independent legal advice in relation to the matters raised by the Four Corners program.
6. On 23 June 2016 Court Attendance Notices were filed at Grafton Local Court charging the applicants with the same offences they were charged with by police in April 2011. Those proceedings came before Grafton Local Court on 2 August and 6 September 2016, and on the latter occasion were adjourned for further mention to 8 November 2016.
7. On 26 October 2016 the DPP requested an exemption from the Chief Justice permitting the DPP to file an ex officio indictment against the applicants in the Supreme Court. On 15 November 2016 the Chief Justice granted the exemption application and the Local Court proceedings were discontinued. On 2 December 2016 the applicants were arraigned in the Supreme Court on an indictment charging Attwater with manslaughter and aggravated sexual assault, and charging Maris with being an accessory after the fact to manslaughter, and aggravated sexual assault.

Ground 5: The sentencing judge's refusal to take into account extra-curial punishment as a mitigating factor was unreasonable.

1. The applicant Attwater submitted that extra-curial punishment was a relevant mitigating factor. He put forward a number of matters to the sentencing judge which her Honour found did not warrant any reduction in the sentence. Those matters included threats to the applicant and his family including threats to kill him, the fact that he was pushed, shoved, spat at, punched, had his shirt ripped and his sunglasses taken when in public places and when appearing in Court, his inability to leave home as a result of abuse in the local area, the media stories, the fact that a camera crew from the media camped outside his Queensland house for three days, and the fact that all of these matters gave rise to symptoms of mood disorder.
2. He submitted that there was the further matter that he was fearful in prison because of the nature of the offences and the high degree of media interest in the case. He submitted that her Honour's treatment of these matters significantly downplayed the evidence given by his solicitor and ignored the opinion of the psychologist, Ms Hare, who examined him, even though the evidence of both of those persons went unchallenged. He submitted that Ms Hare diagnosed that he was suffering from a persistent Adjustment Disorder with mixed anxiety and depressed mood as a consequence of the abuse to which he had been subjected. He submitted that it was plainly unreasonable to give the issue no weight.
3. The Crown submitted that the weight to be given to extra-curial punishment varies from case to case, and is ultimately a matter for the sentencing judge. The Crown submitted that it was open to her Honour to find that the matters did not warrant a reduction on sentence.

Determination

1. In R v Daetz [2003] NSWCCA 216; (2003) 139 A Crim R 398 James J (Tobias JA and Hulme J agreeing) said at [62]: I have concluded from this examination of the authorities cited to the Court and especially Allpass, Clampitt-Wotten and Cooney that, while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence. This is so, even where the detriment the offender has suffered has taken the form of extra-curial punishment by private persons exacting retribution or revenge for the commission of the offence. In sentencing the offender the court takes into account what extra-curial punishment the offender has suffered, because the court is required to take into account all material facts and is required to ensure that the punishment the offender receives is what in all the circumstances is an appropriate punishment and not an excessive punishment. How much weight a sentencing judge should give any extra-curial punishment will, of course, depend on all the circumstances of the case. Indeed, there may well be many cases where extra-judicial punishment attracts little or no significant weight.
2. Her Honour noted at [143] that, when in custody, Attwater saw a mental health practitioner to assess his depressed mood and anxiety about his physical safety in custody. Her Honour noted at [144] that Ms Hare diagnosed the applicant with persistent Adjustment Disorder having formed the opinion that the applicant was experiencing difficulty adjusting to custody.
3. When discussing the issue of delay and its effect on the applicants her Honour said at [189]: Mr Attwater described to Ms Hare having low mood, tearfulness, sleeplessness and low appetite prior to moving to Queensland, which he attributed to verbal and some physical abuse (including spitting and pushing) and threats of harm he received from time to time, most intensely in the immediate aftermath of Ms Daley's death. He said the intensity of these symptoms dissipated after he moved to Queensland in 2012 but that they returned consequent upon being what he described as "repeatedly investigated", including, it would seem, being required to appear in the Coronial Inquiry in 2014 and then again in the Local Court at Grafton after he was re-charged in 2016.

Ground 6: The sentencing judge erred in failing to find that the appellant's post-offences ameliorative conduct entitled him to some mitigation on sentence

1. The applicant submitted that his joint actions with Maris in calling triple-0 and performing CPR for over 50 minutes in an attempt to revive the deceased was ameliorative conduct that warranted some mitigation on sentence. The applicant submitted that those efforts to save her life should have been taken into account as a mitigating factor on sentence.
2. The Crown submitted that post-offence ameliorative conduct does not automatically result in a reduction in the sentence to be imposed. Reference was made to Thewlis v R [2008] NSWCCA 176; (2008) 186 A Crim R 279. The Crown submitted that there was no immediate recognition by Mr Attwater of his wrongful act and his actions did not play any role in saving the victim's life. The Crown submitted that if the applicant had sought medical assistance for the deceased immediately following the sexual intercourse then such conduct might properly be considered as post-offence ameliorative conduct.

Determination

1. In Thewlis, Spigelman CJ said at [4]-[5]: [4] The reasons in Phelan [R v Phelan (1993) 66 A Crim R 446 at 448] were clearly appropriate in the context of a crime involving the loss of money. They, however, emphasise that something special is required for ameliorative conduct to result in mitigation of sentence. Merely taking a step to redress the effect of a crime on victims is not of itself enough. [5] In the present case that special additional element is to be found in the fact that it does appear that the applicant's immediate recognition of his wrongful act played a significant, and quite possibly decisive role, in saving the victim's life.
2. Her Honour said when dealing with the issue of post-offence ameliorative conduct: [59] While I accept that Mr Attwater made genuine attempts to administer CPR and that his efforts persisted for some time until the arrival of the paramedics, I regard his actions at that time as motivated as much by self-interest as responsive to a belated concern for Ms Daley's wellbeing. I do not accept his conduct in administering CPR attracts any weight in mitigation of sentence.
3. Her Honour's conclusion must be seen in the light of her other remarks concerning the truthfulness of Attwater's account of the events up to the time he was administering CPR. Her Honour said: [60] In summary, I am satisfied that Mr Attwater gave a deliberately untrue account to police of the circumstances in which intercourse occurred, and his conduct towards Ms Daley at that time and thereafter was to conceal what he knew had been his disregard or disinterest in Ms Daley's welfare, both at the time when he repeatedly and forcefully penetrated her vagina and generally over the many hours after intercourse and before Mr Maris placed the call to triple-0. While the medical evidence does not enable me to find that Ms Daley was deceased at that time beyond reasonable doubt, I am satisfied, in all the circumstances, of the high probability that was the case and the strong likelihood that she had been deceased for some time before that. [61] I have no doubt that by the time of the first interview with police at 9.55am on 27 January 2011 Mr Attwater knew that he was responsible for Ms Daley's death and that his claim that she had suffered a sudden seizure in the ocean was a lie deliberately told to conceal that fact. [62] Having rejected his account as untrue in these significant respects, where there is a conflict between Mr Attwater's account and other evidence admissible against him, whether as a matter of objective fact or because of my assessment of the probative weight of the expert evidence or a combination of both, the facts that remain in contest for sentencing purposes fall to be resolved solely referable to that evidence and the inferences legitimately drawn from it.

Ground 7: The sentencing judge erred in her findings about the appellant's rehabilitation prospects and likelihood of re-offending

1. The applicant Attwater submitted that although his counsel had submitted at the sentence proceedings that he had good rehabilitation prospects and was unlikely to reoffend, her Honour did not explicitly say if she accepted or rejected the submission about the unlikelihood of reoffending, although it would appear that she implicitly rejected it.
2. The applicant's senior counsel at the hearing before us submitted that a more favourable conclusion should have been reached. It was submitted that whilst the sentencing judge found a "current lack of insight" into his offending, that matter had to be balanced against a number of other considerations as follows: • The applicant had no previous or subsequent history of sexual offending; • His previous criminal record contained only relatively minor offences; • He had never previously served a term of full time imprisonment; • He had not been convicted of any criminal offence of any gravity since 2011; • He made genuine attempts to revive the deceased for some time; • He was plainly affected by her death; • By the time of the sentence, the applicant had established an intimate relationship with a person who spoke positively of him.
3. The Crown submitted that the findings were well open to her Honour, and the applicant's prospects of rehabilitation were rightly assessed in the light of his lack of insight into his offending.

Determination

1. Her Honour noted the submissions made on behalf of Attwater at [149], including a number of the matters that are now put forward which are said to balance the lack of insight reported by Ms Hare. Her Honour accepted that he had not been convicted of any criminal offence of any gravity since committing the offences involving Ms Daley, but her Honour said that a conviction for trespass and possession of knife in a public place in 2013 could not be ignored. Her Honour noted that he was committed to a stable relationship with his current partner. She noted that he had no prior nor subsequent sex offences on his record.
2. Her Honour went on to say: [151] What is of significance in my reading of Ms Hare's report on the question of Mr Attwater's prospects of rehabilitation is her assessment of Mr Attwater as lacking insight (even in a sober state during her interview with him) into the prerequisite need for some level of enquiry by him into whether a sexual partner consents to sexual intercourse. Ms Hare's further assessment that Mr Attwater showed no understanding of how Ms Daley's intoxication impacted on her ability to consent to intercourse is also of significance. While I am not obliged to accept Ms Hare's insights, based on the materials she was given by Mr Attwater's lawyers for the purpose of preparing her report and her interviews with him, she concluded that Mr Attwater failed to afford Ms Daley due care, consideration and attention as an intoxicated person with whom he was obviously desirous of having sexual intercourse. I have come to the same conclusion. [152] I also regard Ms Hare's report as providing a valuable forensic insight into Mr Attwater's actual state of mind at that time. Again, based on her assessment of him in the course of interview and his account of relevant events, she noted: … Mr Attwater's lack of concern for [Ms Daley's] active consent speaks to violation of her rights and possible underlying attitudes that reflect male prerogative; he reported that they had engaged in similar behaviour with [Ms Daley] previously (putting his whole hand up to his thumb in her vagina), and despite [Ms Daley] being intoxicated and unable to actively consent, he seemingly assumed he had the right to engage in similar behaviour at the time of the offence. [153] In expressing that opinion, she went on to note that: … Mr Attwater's interest related to engaging in 'threesomes' remains unexplored at the time of writing. I acknowledge that he was disinclined to discuss this aspect of his sexual behaviour further in interview, which means I do not have any understanding of what the dynamics of group sexual behaviour means for him, or how it fits with his views of power/dominance during sexual activity with women, and this requires further exploration. [154] Ms Hare's insights into Mr Attwater's attitude to sexual relations with women generally, and to Ms Daley as a casual sexual partner in particular, sheds light on his attitude towards Ms Daley at the time of intercourse as it does his current lack of insight into the conduct that resulted in her death. I regard his prospects of rehabilitation as guarded at best.

Ground 8: The sentence is manifestly excessive

1. The applicant Attwater submitted that a number of factors suggested that the imposition of a 19 year aggregate sentence was a plainly unjust result. First, it was submitted that it was incumbent on the sentencing judge to take into account that nearly seven years had elapsed since the offending at the time of the sentence. Not only was there the uncertainty from the delay, Attwater had established a new relationship and had been subjected to extra-curial punishment.
2. Secondly, it was submitted an appropriate sentence did not need to account for specific deterrence. This was Attwater's first and only sexual offence as well as his first period of full-time imprisonment.
3. Thirdly, it was submitted that the sentencing judge's approach to notional accumulation was unreasonable. Although her Honour was conscious of the totality principle the accumulation of one year by reason of the sexual assault offence was unduly mechanistic. It was submitted that a sentence of 18 years, indicated for the manslaughter, adequately covered the total criminality in the offending generally. In that way, the decision to add an additional year to the 18 year sentence was unreasonable. In that way, the imposition of an aggregate sentence exceeded the legitimate bounds of discretion.
4. The Crown submitted that the gravity of the manslaughter offence was high and noted that Attwater's counsel had accepted that it was an "objectively very serious manslaughter".
5. The Crown submitted that there was little to mitigate the sentence to be imposed. There was no finding of remorse. The prospects of rehabilitation were assessed as guarded, and it could not be concluded that he was unlikely to reoffend.
6. The Crown submitted that moderate weight had been given to the issue of delay. The Crown submitted that it was appropriate for the sentence imposed to account for specific deterrence given Attwater's lack of insight into his offending at the time of sentence. The Crown submitted that questions of accumulation were discretionary and that there needed to be a modest degree of accumulation between counts 1 and 2.

Determination

1. Her Honour imposed an aggregate sentence on Attwater of 19 years commencing 5 September 2017 and expiring 4 September 2036 with a non-parole period of 14 years and three months expiring 4 December 2031. The indicative sentences were 18 years for manslaughter, and 12 years with a non-parole period of nine years for the aggravated sexual assault.
2. The overall effect of the sentence is that there was an accumulation of one year in respect of the aggravated sexual assault. Although complaint is made about this, it cannot be seen as unreasonable. Counsel for Attwater expressly accepted, in response to an enquiry from the sentencing judge, that a limited degree of accumulation was appropriate to take account of the aggravating factor that the sexual offence was committed in company. The sentence for the sexual offending was otherwise comprehended by the sentence for the manslaughter: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.
3. The sentencing judge said at [113]: The objective seriousness of the manslaughter offence is, on any view, an example of manslaughter by an unlawful and dangerous act in the upper end of the range of seriousness for manslaughter committed in that way. There was no challenge to that significant finding, and it may be noted that counsel for Attwater at the sentence proceedings accepted that it would fall at the upper end of the midrange.
4. The issue of delay was dealt with at considerable length by the sentencing judge, and she ultimately concluded that delay was a factor to be reflected in the sentence to a moderate degree.
5. Nor was it wrong for the sentencing judge to consider that specific deterrence was a relevant consideration. First, the applicant Attwater had committed other offences in Queensland after he moved there following the abuse he received after the deceased's death became known. Secondly, her Honour discussed and considered those portions of Ms Hare's report which pointed to a lack of insight by Attwater into his attitudes towards sexual relations with women. Thirdly, Ms Hare's assessment using the Static-99R was that the applicant was within the average risk for being charged with a further sexual offence. That was said to mean that he was "typical of offenders in the middle of the risk distribution", and that such offenders have criminogenic needs in several areas, and require "meaningful investments in structured programming to decrease their recidivism risk".

Ground 4 (Maris): The aggregate sentence imposed on the appellant was manifestly excessive

1. The aggregate sentence imposed upon the applicant Maris was a sentence of nine years with a non-parole period of six years and nine months. The indicative sentences were eight years with a non-parole period of six years for the sexual assault, and four years for the hindering offence.
2. The applicant Maris submitted that he stood to be sentenced on the factual basis that he had introduced his flaccid penis into Ms Daley's mouth for a brief period. There was nothing to suggest that he had caused her any physical harm. Senior counsel drew attention to her Honour's finding that Maris' offending was less objectively serious than both Attwater's sexual offending and other offending on a notional spectrum of offending against s 61J of the Crimes Act.
3. Maris submitted that a consideration of the cases for offences against s 61J ordinarily involved actual threatened use of violence, with or without weapons, against the complainant. He submitted that cases where there was no actual threatened use of violence have been regarded as towards the lower end of objective gravity. Reliance was placed on R v Button; R v Griffen (2002) 54 NSWLR 455; [2002] NSWCCA 455; (2002) 129 A Crim R 242 and Perrin v R [2006] NSWCCA 64 to submit that the indicative sentence for the sexual assault was outside the range of available sentences.
4. In relation to the offence of hindering, the applicant Maris submitted that the investigation found to have been hindered was not the wrongful death investigation because it was him who telephoned emergency services and stayed with Ms Daley's body and made attempts over a long period to revive her.
5. Maris submitted that the indicative sentence of four years was outside the range available, particularly having regard to other cases including R v Smith [2017] NSWSC 900 and Ibrahim v R [2005] NSWSC 1028.
6. Although no separate ground in relation to delay was pleaded, the applicant Maris submitted that the issue of delay was a matter relevant to a consideration of whether the sentence was manifestly excessive. He also drew attention to various subjective matters, including prospects for rehabilitation, remorse, and his criminal record, submitting that it was not a bad record.
7. The Crown submitted that the cases of R v Button; R v Griffen and Perrin, relied upon by Maris, were not appropriate comparable cases. Button & Griffen was a conviction appeal. In any event, no standard non-parole period applied to the offence. The matter of Perrin did not involve an offence of aggravated sexual intercourse without consent. In any event, the offender in Perrin had pleaded guilty to the offence of sexual intercourse without consent, he was 18 years old, had no prior convictions and was a person of prior good character.

Determination

1. Her Honour imposed an aggregate sentence of nine years with a non-parole period of six years and nine months. The indicative sentences were eight years with a non-parole period of six years for the aggravated sexual assault, and four years for the hindering the police investigation.
2. In relation to the objective seriousness of Maris's offending, her Honour said: [107] On the evidence that is available, I regard the seriousness of Mr Maris's offending as less objectively serious, both when compared to the sexual offending of Mr Attwater and to other offending on a notional spectrum of offending against s 61J of the Crimes Act. [108] The objective seriousness of the sexual offending of both offenders must also reflect the jury's verdict that the circumstance of aggravation in each offence, in that they each performed a different act of intercourse upon an unconscious woman, not only in one another's company but at the same time, was proved beyond reasonable doubt. [109] In the result, my assessment of the objective seriousness of the sexual offending of both offenders, referable to the various findings I have made adverse to both offenders concerning the facts, matters and circumstances in which the offending occurred and without reference to any matters personal to either of them, is that the moral culpability of both offenders for the aggravated sexual assault which they were each convicted is high, although Mr Attwater's sexual offending is by far the more serious. [110] The standard non-parole period and the maximum period of imprisonment are both of significance in guiding the exercise of my sentencing discretion for that reason. [111] The sentencing principle of long-standing that non-consensual sexual intercourse is itself a form of violence which must be loudly denounced by sentencing courts does not require restating. The hindering offence [112] The objective seriousness of the offence of hindering the discovery of evidence is to be assessed both in the context of the seriousness of the serious indictable offence the subject of the police investigation (in this case the sexual assault by Mr Atwater) and the fact that although remnants of the blood-soaked mattress and Ms Daley's clothing were recovered, police were nonetheless deprived of forensic evidence which I am well satisfied would have supported the prosecution case against Mr Attwater for the sexual offence for which he was ultimately convicted. I am unable to make any categorical finding as to whether the burning of the mattress and clothing impacted on the decisions of the Director of Public Prosecutions not to prosecute at an earlier time, or any categorical finding as to what motivated Mr Maris to act as he did, since he has not acknowledged responsibility for any criminal conduct in the burning of the mattress or sought to explain it. That being the case, the comparative cases which I was asked by Mr Wasilenia to consider are of no utility. (emphasis added)

Conclusion

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

orders

1. We make the following orders: 1. An extension of time is granted to the applicant Maris to file his application for leave to appeal against conviction and sentence; 2. To the extent that leave is necessary, leave is granted to the applicants to appeal against conviction; 3. In each case, the appeal is dismissed; 4. Leave is granted to the applicants to appeal against sentence; 5. In each case, the appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 February 2021