(2007) 168 A Crim R 41
Dhanhoa v The Queen (2003) 217 CLR 1
[2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193
[1993] HCA 63
Gibson v R [2019] NSWCCA 221
Hordern v R [2019] NSWCCA 138
(2019) 278 A Crim R 353
Ibrahim v R [2005] NSWSC 1028
Kerr v R [2016] NSWCCA 218
Source
Original judgment source is linked above.
Catchwords
(2007) 168 A Crim R 41
Dhanhoa v The Queen (2003) 217 CLR 1[2003] HCA 40
Edwards v The Queen (1993) 178 CLR 193[1993] HCA 63
Gibson v R [2019] NSWCCA 221
Hordern v R [2019] NSWCCA 138(2019) 278 A Crim R 353
Ibrahim v R [2005] NSWSC 1028
Kerr v R [2016] NSWCCA 218(2016) 78 MVR 191
Libke v The Queen (2007) 230 CLR 559[2007] HCA 30
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Mulato v R [2006] NSWCCA 282
Pell v The Queen (2020) 94 ALJR 394[2020] HCA 12
Perrin v R [2006] NSWCCA 64
R v AttwaterR v Maris [2017] NSWSC 1710
R v Baker [2000] NSWCCA 85
R v ButtonR v Griffen (2002) 54 NSWLR 455[2002] NSWCCA 455(2002) 129 A Crim R 242
R v Daetz [2003] NSWCCA 216[2011] HCA 13
Tabbah v R [2017] NSWCCA 55
The Queen v Baden-Clay (2016) 258 CLR 308[2016] HCA 35
Thewlis v R [2008] NSWCCA 176(2008) 186 A Crim R 279
Turnbull v Chief Executive of the Office of Environment and Heritage [2015] NSWCCA 278
Judgment (39 paragraphs)
[1]
Background
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.
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 - "
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."
This part of the address did not suggest to the jury that they could use the lie as evidence of consciousness of guilt.
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."
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.
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."
Once again, this part of the address did not invite the jury to reason that the lie alleged was evidence of consciousness of guilt.
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."
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 - "
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 - "
On the same day counsel for Mr Attwater commenced his address.
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."
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.
[2]
The directions
Her Honour gave written directions to the jury.
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."
This is a clear direction to the jury that lies could not be used as evidence of consciousness of guilt.
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."
[3]
The submissions on behalf of Attwater
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.
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."
[4]
The submissions on behalf of Maris
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.
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.
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.
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.
[5]
a Written submissions in respect of Attwater
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.
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.
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.
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.
In relation to the complaint that the impugned paragraphs of the summing-up did not distinguish between the two charges and thus raised the possibility of consciousness of guilt reasoning in respect of both offences, the Crown repeated its submission that the impugned paragraphs did not involve consciousness of guilt reasoning. Further, it was submitted that even though her Honour had initially ruled that the Crown could rely on certain lies as evidence of consciousness of guilt, the Crown did not do so.
[6]
b Written submission in respect of Maris
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.
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.
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.
Finally, it was submitted that r 4 of the Criminal Appeal Rules applied.
[7]
c The Crown's submissions at the hearing
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.
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.
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.
[8]
Consideration
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].
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.
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.
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.
[9]
Ground 2: The Convictions are Unreasonable and Unsupported by the Evidence
[10]
The Submissions of the Applicant Attwater
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.
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.
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.
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.
[11]
The Submissions of the Applicant Maris
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".
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.
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.
[12]
The Submissions of the Crown - Attwater
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.
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.
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.
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.
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.
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.
[13]
The Submissions of the Crown - Maris
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.
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.
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.
The verdict of guilty to this charge was well open to the jury.
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.
[14]
Determination
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.
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".
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].
[15]
Conclusion on Ground 2
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.
[16]
Conclusion - Conviction Appeals
Whilst we would grant leave to both applicants to advance their respective appeals against conviction, each must be dismissed.
[17]
THE PROPOSeD Sentence appeals
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).
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.
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.
[18]
Ground 1: The sentencing judge made factual errors about:
[19]
(i) The deceased's level of intoxication at the time of intercourse;
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.
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.
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.
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.
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.
[20]
Determination
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.
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.
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.
We reject this ground.
[21]
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)
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.
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.
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.
[22]
Determination
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.
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.
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.
[23]
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.
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.
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.
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.
[24]
Determination
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.
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.
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.
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)
[25]
Ground 4: The sentencing judge took into account an irrelevant consideration when determining the significance of delay
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.
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.
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.
[26]
Determination
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.
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.
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.
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.
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.
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.
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.
[27]
Ground 5: The sentencing judge's refusal to take into account extra-curial punishment as a mitigating factor was unreasonable.
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.
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.
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.
[28]
Determination
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.
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.
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.
[29]
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
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.
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.
[30]
Determination
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.
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.
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.
[31]
Ground 7: The sentencing judge erred in her findings about the appellant's rehabilitation prospects and likelihood of re-offending
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.
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.
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.
[32]
Determination
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.
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.
[33]
Ground 8: The sentence is manifestly excessive
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.
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.
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.
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".
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.
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.
[34]
Determination
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.
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.
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.
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.
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".
[35]
Ground 4 (Maris): The aggregate sentence imposed on the appellant was manifestly excessive
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.
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.
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.
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.
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.
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.
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.
[36]
Determination
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.
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)
[37]
Conclusion
Although we would grant each applicant leave to appeal, it follows that the sentence appeals must be dismissed.
[38]
orders
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.
[39]
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
Solicitors:
Legal Aid (Applicant Attwater)
P Williams and Company Lawyers (Applicant Maris)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2016/00192006; 2016/00190670
Publication restriction: Nil
Decision under appeal Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Criminal
Citation: [2017] NSWSC 1710
Date of Decision: 8 December 2017
Before: Fullerton J
File Number(s): 2016/00192006; 2016/00190670
Ground 1: Asserted Error in Directing the Jury with Respect to Lies
The basis of the complaint under this ground is that the directions given to the jury on what were alleged to be lies told by the applicants permitted the jury to reason that the lies evidenced consciousness of guilt without giving the jury a direction of the nature of that referred to in Edwards v R (1993) 178 CLR 193; [1993] HCA 63 ("Edwards").
The written submissions also referred to the initial ruling given by her Honour, which we have set out at [226] above, and to the fact that, in accordance with her Honour's ruling, the Crown invited the jury to engage in consciousness of guilt reasoning when considering manslaughter by gross criminal negligence.
The submission then referred to the change in the ruling, which we have set out at [235] above, and submitted that the response of counsel for Attwater was to address the jury consistently with that ruling.
In that context it was submitted that the trial judge's remarks, in particular the following statement paraphrased by counsel that "the Crown submits lies were told in an endeavour to account for their criminal conduct", conveyed the argument that "if you find the appellant lied you, should or may conclude he did because he was endeavouring to conceal his guilt; thus, to find that he lied is to find that he is guilty".
The submission also referred to the statement in paragraph 162 of the summing-up (see [242] above), "The Crown says that their account to police is untrue in very major respects and the Crown says the accounts were given by the accused in order to minimise or indeed, falsely account for what they well knew by the time they were interviewed was their criminal responsibility for some of the events of the night". That portion of the summing-up was described in the written submissions as "problematic".
It was submitted that at no stage did the trial judge give an Edwards type direction that the jury needed to be mindful of the fact that people tell deliberate lies for reasons other than their guilt.
It was accepted that the written directions, along with the summary of argument at paragraph 160 and the direction at paragraph 163 of the summing-up, were consistent with her Honour's stated intention. However, it was submitted that the particular parts complained of in paragraphs 149 and 162 of the summing-up were of a different character, namely, that the Crown case was that the applicant gave a false account because, at the time of the interview, he was aware of his own criminal responsibility.
It was submitted that the passage in paragraph 162 invited the jury to engage a consciousness of guilt reasoning without the protection of an Edwards type direction. It was also submitted that the impugned passages did not distinguish between any of the offences, and that it was unfair because defence counsel addressed on the false assumption that he did not need to meet an argument that suggested a consciousness of guilt type reasoning.
It was accepted that r 4 of the Criminal Appeal Rules (1952 SI 2) may apply, but it was submitted that leave should be granted having regard to the manner in which the sentencing judge stated the jury were to be directed on lies. It was submitted that a subsequent clarification of the use of lies direction would have added to the confusion.
At the hearing, senior counsel for Attwater submitted that the effect of the change in the trial judge's ruling was that it required defence counsel to only address on lies as a credibility issue. She submitted in that context, referring to the portion of the Crown's address which we have set out at [229] above, that the jury must have wondered why defence did not address such a strong submission.
Senior counsel for Attwater also submitted, referring to the same portion of the Crown's address, that there was no question that consciousness of guilt reasoning was raised. She submitted that the Crown did not seek to resile from what he had said in his address to the jury to which we have referred at [229] above, and the reference in paragraph 149 of the summing-up clearly raised consciousness of guilt reasoning. She accepted that it was in the context of the written direction. However, she submitted that the mixed messages which resulted would have reinforced the confusion the jury might have felt as a result of the Crown Prosecutor being able to address on deliberate lies, including by stating that the applicant deliberately told "preposterous" story, whilst the defence was not permitted to squarely address what the Crown had said. She noted in that context that the jury took only 32 minutes to reach its verdict.
Senior counsel for the applicant submitted that although the consciousness of guilt submission raised by the Crown was only directed to the liability for manslaughter by way of criminal negligence, it would have infected the whole of the jury's reasoning. She also submitted that to ask for a redirection would have amplified something which "everybody by this stage was hoping would just be swept under the carpet" and would be swamped by all of the other material in the case.
The Crown referred to that passage of the Crown's address to which we have referred at [229] above, the subsequent interchange between counsel and the sentencing judge to which we have referred at [234] above, and the ultimate ruling by her Honour to which we have referred at [235] above. It was noted that it was counsel for Attwater who expressly referred to the Crown's case as being that Attwater's account was some sort of performance designed to conceal what actually happened. It was submitted that that suggested that, in the context of the trial, consciousness of guilt reasoning was not an issue.
Finally, it was submitted that r 4 of the Criminal Appeal Rules applied.
The next passage of the summing-up (paragraph 149) recounts the Crown's submission. Although taken in isolation it may have led the jury to conclude that the Crown was arguing that if the jury did not believe the applicant's account they could find him guilty, the passage cannot be read in isolation. The passage must be read in the context of the express written direction that that was what the jury were not permitted to do.
Paragraphs 157-160 of the summing-up simply record submissions by the Crown of the occasions on which Maris was said to have lied.
Paragraph 161 of the summing-up primarily deals with the submission on behalf of the applicants that they were not telling lies.
The opening paragraph of the summing-up, paragraph 162, contains a direction of what the jury needed to be satisfied to conclude that the applicants were lying in the statements which they had made. There follows the particular passage of which complaint was made. Immediately thereafter the trial judge emphasised the need to give separate consideration to the lies the Crown alleged were told by each accused.
Left at that point there may have been some merit in the argument that notwithstanding the clear written directions, consciousness of guilt reasoning was left open to the jury. However, the passages complained of must be read in the context of paragraph 163 of the summing-up.
Paragraph 163 of the summing-up is quite explicit. It emphasises the fact that a lie cannot be used to prove the guilt of the accused whether alone or with other evidence, and that the Crown was not advancing a contrary submission. It was further emphasised in paragraph 179 of the summing-up that in order to be satisfied that guilt had been established beyond reasonable doubt, it was necessary to be satisfied of all of the elements of the offence. Further, it was emphasised in paragraph 180 of the summing-up that the jury should not be distracted by the lies in reaching their conclusion.
In these circumstances, although the recitation of the Crown's submissions may have caused the jury to embark on consciousness of guilt reasoning, unless otherwise instructed the written directions coupled with the unambiguous direction in paragraph [163] and paragraphs 179-180 of the summing-up would have dispelled any belief that that was appropriate.
It is finally necessary to deal with the reliance by counsel for Maris on the decision in Toia Siulai. The error in that case was that where the issue of credibility was different in the case of each of the accused, the directions given did not identify the different ways in which the issue arose. In the present case, the trial judge expressly told the jury that the lies did not cross-pollinate and that the jury had to separately consider the lies that each accused were alleged to have told.
In these circumstances, this ground of appeal has not been made out.
Attwater argued that the evidence could not support a conclusion that Ms Attwater was "approaching stupor" in Iluka, because:
1. After Mr Newtown and Mr Gallagher saw her, she was not difficult to rouse; she walked into, around and out of Foodworks, and she was talking and laughing with the co-accused;
2. She was able to converse with Maris and clearly yell out, 'Anyone want a piece of this', pulling her track pants up twice in succession;
3. She was not apparently confused; she was able to place things into the rear of the vehicle [where the Esky was];
4. She was able to physically support herself; standing whilst twice pulling her pants up with one hand; and
5. She was not unaware of her physical surroundings; it would appear she re-positioned her body to expose her bare bottom to get a reaction from observers.
If Ms Daley's presumed tolerance to alcohol is also considered, it cannot be safely concluded that she was approaching a state of stupor in Iluka, or incapable of consenting to intercourse thereafter.
The applicant conceded that Ms Daley was very intoxicated when at IIuka, but maintained that, in the absence of evidence as to the degree of the deceased's tolerance to alcohol, the effect of intoxication on her when at IIuka between 5:30-6pm on 26 January 2011 was "very much an issue". It was submitted that Dr Perl overstated the effect of Ms Daley's level of intoxication by failing to have full and proper regard to all of the available evidence.
Professor Christie was unable to estimate Ms Daley's likely blood alcohol concentration at and after 6pm on 26 January 2011, because there were too many variables, including the degree of tolerance to alcohol, how much alcohol she had consumed; and what her rate of elimination of alcohol was.
Referring to Tabbah v R [2017] NSWCCA 55, it was argued that the fact of heavy intoxication does not of itself mean that a person is incapable of making a free and voluntary decision to have sexual intercourse.
Of the Crown's reliance on the severe injury sustained, and the painful nature of it to found a conclusion that Ms Daley must have been in a state of or close to unconsciousness at the time of intercourse, the applicant argued that this evidence can say nothing about consent that was given before the act. Further, the expert medical evidence could not exclude the reasonable possibility that Attwater inserted his fingers, or even his fist, for "a couple of minutes", then caused the lacerations with a single more vigorous insertion, stopping immediately he saw blood on his hand.
The applicant concluded that there was no evidence at all that Ms Daley withdrew her consent because of the mechanism of sexual intercourse, the nature of the injuries she had suffered, or the pain she was likely to have experienced.
If the charge of aggravated sexual assault could not be proved, neither could the change of manslaughter relying on unlawful and dangerous act.
As to the alternative basis of liability for the latter charge, it was the applicant's argument that the evidence did not support a conviction on the basis of criminal negligence because there was no evidence to contradict his account of having ceased to penetrate Ms Daley's vagina immediately after he saw a small amount of blood on his hand, or of her supposed assurances to him thereafter that she was well. The applicant and Ms Daley were friends and there was no reason to conclude that he would not have secured medical assistance for her if she had asked for it, or otherwise had cause to believe that it was required. Since Ms Daley dressed in a pair of black tracksuit pants after intercourse, it would have been near impossible to see through her clothing at night without some form of strong lighting. Light was limited to the fire built near the vehicle; there was no evidence to establish that the vehicle's internal lights operated. The small deposits of blood later found by crime scene officers would have been difficult to see.
Any adverse symptoms displayed by Ms Daley were all capable of being understood by the lay person as signs of intoxication, not suggesting the need for medical intervention. She did not complain of pain, and her "pain threshold" was not known. Some individuals are more tolerant of pain than are others.
In summary, the applicant contended that "the prosecution case was deeply flawed because it was based on a series of unknowns or 'imponderables'" and there is a possibility that an innocent man has been convicted.
The applicant's inconsistent accounts of events provided further evidence in support of the Crown case.
It was well open to the jury to be satisfied to the requisite standard that Attwater performed a vigorous and likely repeated act of "fisting" at a time when Ms Daley did not or could not consent to that act and when he was, at least, reckless to the lack of consent from her. That charge being readily capable of proof beyond reasonable doubt, a verdict of guilty to the manslaughter charge, on the basis of unlawful and dangerous act, followed. Alternatively, having regard to the amount of blood Ms Daley lost because of what Attwater did to her, and his subsequent failure to secure assistance for her, a verdict of guilty on the basis of criminal negligence was open.
That principle has additional resonance in this case for two reasons. Firstly, the jury had the advantage of not just seeing and hearing from witnesses, but also the further, considerable, advantage of a view of the three sites at Ten Mile Beach, which gave context to the overall evidence in a way that the electronic record of the view available to this Court cannot. Secondly, consideration of the manslaughter count against Attwater involves the application of a "reasonable person" test, a test that a jury is typically best suited to apply, bringing to bear, as a jury's consideration of any issue does, the life experience and understanding of human relations of twelve (or in this instance eleven) individuals.
As the parties have submitted, count 2 of the indictment, the charge of aggravated sexual assault brought against both Attwater and Maris, was the lynchpin of the Crown's case against each. Proof of this count was necessary for the Crown to establish manslaughter by unlawful and dangerous act charged against Attwater, and to establish the hinder offence charged against Maris.
It is sensible to consider this count first in assessing the applicants' contention that the verdicts returned by the jury against each of them were unreasonable and unsupported by the evidence.
In considering the integrity of the verdicts returned against both Attwater and Maris with respect to count 2, the specific starting point must be the relevant legislation. The offence is one contrary to s 61J(1) of the Crimes Act which, as at 26 January 2011, provided:
61J Aggravated sexual assault
(1) Any person who has sexual intercourse with another person without the consent of the other person and in circumstances of aggravation and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 20 years.
(2) In this section, circumstances of aggravation means circumstances in which:
[…]
(c) the alleged offender is in the company of another person or persons, or
[…]
For the Crown to prove count 2 of the indictment against Attwater, it had to establish to the requisite standard of proof beyond reasonable doubt that:
1. The applicant Attwater had sexual intercourse with Ms Daley, where the act relied upon was the insertion of Attwater's fingers, hand, or fist into Ms Daley's vagina;
2. Ms Daley did not consent to the act of intercourse, or its continuation;
3. Attwater knew that Ms Daley did not consent; and
4. Attwater was in company with Maris, this being the circumstance of aggravation relied upon.
The elements to be proved by the Crown against Maris are the same, although the factual basis differs in some regards: the act of intercourse was one of penile - oral intercourse, and the person with whom he was in company at the material time was Attwater.
The phrase "without the consent of the other person" used in s 61J(1) is to be understood by reference to s 61HA of the Crimes Act, as it applied in January 2011. This provision, which deals with consent in relation to offences of sexual assault, including those charged under s 61J, provides:
61HA Consent in relation to sexual assault offences
(1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA.
(2) Meaning of consent A person consents to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse.
(3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if:
(a) the person knows that the other person does not consent to the sexual intercourse, or
(b) the person is reckless as to whether the other person consents to the sexual intercourse, or
(c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse.
For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:
(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but
(e) not including any self-induced intoxication of the person.
(4) Negation of consent A person does not consent to sexual intercourse:
(a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or
(b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or
(c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or
(d) if the person consents to the sexual intercourse because the person is unlawfully detained.
(5) A person who consents to sexual intercourse with another person:
(a) under a mistaken belief as to the identity of the other person, or
(b) under a mistaken belief that the other person is married to the person, or
(c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means),
does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief.
(6) The grounds on which it may be established that a person does not consent to sexual intercourse include:
(a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or
(b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or
(c) if the person has sexual intercourse because of the abuse of a position of authority or trust.
(7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse.
(8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.
As can be seen from that provision, the intoxication of either man was not a feature that the jury was entitled to consider when considering their respective knowledge about consent (s 61HA(3)(e)), so that aspect of the facts of events of 26 January 2011 can be put aside for the purposes of consideration of this count.
By reference to s 61HA, the Crown's case was that Ms Daley did not or could not consent to the particular act of intercourse that occurred, being a forceful penetration of her vagina by Attwater's hand or fist; and nor did she consent to the insertion of Maris' penis into her mouth; because of her cognitive state at the time, being heavily intoxicated or unconscious.
In our opinion, having reviewed the whole of the evidence adduced at trial, the verdicts returned by the jury with respect to both applicants were open on that evidence. As the Crown submitted, to the jury and to this Court, there was a solid body of evidence from which the jury was entitled to infer that Ms Daley did not consent and, bearing in mind the broad attribution of knowledge provided for by s 61HA, that each man knew it.
Although a great deal of emphasis was placed upon the evidence of Dr Perl in the argument before us, the jurors were enjoined to have regard to the whole of the evidence and, when considering that evidence, to use their life experience and common sense. The totality of the evidence, from both witnesses who had seen Ms Daley in and around Iluka and from expert witnesses, provided a sound basis upon which to conclude that, either, Ms Daley was so heavily intoxicated as to be unable to freely and voluntarily consent, or that she was unconscious from the effects of alcohol and did not consent. In either case lack of consent was clear. A conclusion that each applicant knew, or at the very least was reckless to that fact, or had no reasonable grounds to believe that she consented, was also soundly based.
In Maris' case he had been in Ms Daley's company since 25 January 2011 and was aware that she had been drinking solidly during much of the time they had been in each other's company. A focus of their joint activities prior to leaving for Ten Mile Beach had been on the acquisition of alcohol. In his first interview with D/S Burke, Maris said that Ms Daley borrowed money from someone on the morning of Australia Day to buy alcohol, and they then went to a bottle shop for that purpose. They met up with friends and were drinking beer and wine at "the bay". They went to Back Beach and were drinking there and, after going to buy food [to Iluka], parked in the sand dunes and "we just drank, pretty much, we were there for a long time". Maris said that the sexual activity occurred after that.
Attwater gave as the reason for the trip to Ten Mile Beach to go fishing and to "get on the fuckin' piss". He told D/S Burke in his first interview that they had driven to the area and both he and Ms Daley "were both drinking fucking wine". He said it got dark after that. He referred to the sexual activity as happening "later, late, late man".
On each of the initial accounts given by the applicants to D/S Burke, it was open to infer that Ms Daley was drinking before and after they arrived at Ten Mile Beach. Her level of intoxication, it may be inferred, was higher than that demonstrated in Iluka.
Ms Daley's condition on arrival at Ten Mile Beach, before consuming any further alcohol, was able to be inferred by the jury with reference to the evidence of those who saw her in Iluka prior to the journey, supported by the expert evidence. That she was "substantially intoxicated" as contemplated by s 61HA(6)(a) was a conclusion well open to the jury.
Although Attwater points to some of the observations made of Ms Daley in Iluka, notably that of Karen Collett, the accounts of her condition are consistent in that each witness noted Ms Daley to be well affected by alcohol. Tina Daley saw her sister as early as 5am on Australia Day. At that early hour (when Ms Daley was in the company of Maris) Tina Daley saw that her sister was "drunk". She was stumbling, and slurring her words. She smelled of alcohol. Craig Peglar saw her later that day at Back Beach, at about 3.30. Ms Daley was still drinking, and had "the stumbles" and "the wobbles up".
Within a couple of hours Ms Daley and the applicants had arrived in Iluka, where Ms Daley was still noticeably affected by alcohol. Peter Gallagher, who saw Ms Daley at close range, regarded her as "pretty well intoxicated" with glazed eyes, nodding head dipped to her chest, and eyes drooping closed. He characterised her level of intoxication as "near high". Mr Lester saw Ms Daley to be very unsteady on her feet. On the top of her body she was wearing only a bra, a circumstance which, for a woman who ordinarily dressed modestly, pointed to a high level of intoxication. Mr Lester thought Ms Daley was highly affected by alcohol. Karen Collett also regarded Ms Daley as well affected by alcohol; she made no response at all when Maris made sexual gestures towards her in the aisles of the grocery store. Although Ms Collett's observations of Ms Daley turning her buttocks and yelling "anyone want a piece of this" when out in the street were relied upon by Attwater to point to Ms Daley's evident co-ordination and cognitive awareness at this time, it was entirely open to the jury to conclude, conversely, that Ms Collett's evidence was in keeping with that of other witnesses, and pointed to the high level of intoxication under which Ms Daley was labouring at the time.
The evidence of Ms Daley's family was that she was a modest woman, who typically wore clothes that concealed her body, being very "body conscious". For a woman who was conscious of her body in that way, and who ordinarily kept herself covered, to dress in no more than a bra to cover her torso, and to draw attention to her exposed bottom bespeaks drunkenness, not cognitive clarity. That she could subsequently pull up the tracksuit pants that Maris had pulled down says little about her capacity; it is, after all, an act that requires little conscious thought, or dexterity.
Mr Newton's evidence supports this conclusion. Like Mr Gallagher, he saw Ms Daley at close range, and saw her to be "very very intoxicated". He said that "she didn't really know where she was". Also consistent with Mr Gallagher's observations, Mr Newton saw that Ms Daley was sitting in the car with her head down, her chin resting on her chest. When Attwater made what most women and all right minded people would regard as an insulting and humiliating comment about her to Mr Newton, a stranger, in which she was referred to as a "thing" to be dropped "down the road", she did no more than raise her head and make an incoherent sound. That she neither protested nor responded to the insult may well have been regarded by the jury as saying a great deal about her intoxication and capacity at that time.
If the sexual activity occurred at around or soon after twilight, as the bulk of the evidence suggested, and even if she had consumed no further alcohol after arriving at Iluka, Ms Daley's level of intoxication would have been little different at that time from the point at which these observations of her were made. Even without any further consumption of alcohol after Iluka, she would have been little improved in terms of her level of sobriety, on the evidence of both Dr Perl and Professor Christie.
It is open to conclude however that, as intoxicated as she was at that point, Ms Daley consumed further alcohol between that time and the time of the sexual activity, the latter being unknown, but between twilight and a point some hours after twilight. On that basis alone it was open to the jury to conclude that Ms Daley did not or could not consent to sexual intercourse, whether the forceful penetration of her vagina by a hand or fist, or the broadly contemporaneous insertion of a penis into her mouth. There is, however, other evidence.
Admitted against both Attwater and Maris was Attwater's comment to the Triple 0 operator on the morning of 27 January 2011 that Ms Daley had been "blind. She was off her fucking face last night". With that knowledge available to be attributed to both applicants, the description of each to D/S Burke of what each believed suggested Ms Daley's consenting participation in acts of sexual intercourse may have been regarded by the jury as significant, and pointing clearly to the absence of consent.
When asked by D/S Burke about Ms Daley's consent to sex during the first interview, on the beach on 27 January 2011, Attwater failed to point to any positive act or word of Ms Daley's that was consistent with consent. He was asked how sex had started, and replied:
"I don't know you pull your fuckin' cock out to start off yeah".
If that statement was accepted by the jury as truthful and, as an admission against interest there was no reason not to accept it, Ms Daley was not the initiator of any sexual activity between her and Attwater. When asked if sex had been "consensual", Attwater responded "for sure", but gave no account of anything said or done by Ms Daley from which he could have reasonably concluded that the act was done with her consent.
In his second interview, on 3 March 2011, Attwater said that, on arriving at Ten Mile Beach he and his companions had been talking and drinking prior to sexual activity occurring. He said "we ended up in the back" of the troop carrier where he was "fingering" Ms Daley whilst she was "sucking Paul". Attwater claimed:
"Lynette was, she was quite all right with what we were doing, she didn't say 'stop it, don't do this' or anything like that. She was, she was alright with it that's what she was doing".
When asked, "How do you know she was all right with what was happening", Attwater responded:
"She would've said so. She would've said, you know, 'stop that', or you know, she would've said, she would've said somethin' to us".
It was well open to the jury to conclude that Ms Daley was incapable of making any protest, as she was incapable of giving free and voluntary consent to the act committed by Attwater (or Maris) upon her, and that his reliance upon her failure to protest as equating to consent was reckless at best.
That conclusion is further reinforced by the expert and other evidence, both as to the nature of the injury occasioned to Ms Daley by Attwater's act of intercourse and her apparent failure to respond, and as to Ms Daley's blood alcohol level at death.
Both Mr Jarrett and Ms Norman deposed that Attwater had admitted to each separately that he had "fisted" Ms Daley, consistent with what he had told D/S Burke on 27 January 2011, albeit in a less forthright way (and in contrast to the more benign description he gave the detective on 3 March 2011). That he "fisted" her is supported by the expert evidence, including that of Dr Ellis, called by Attwater in his case.
Dr Lincoln and Associate Professor Bland both regarded the injuries inflicted on Ms Daley as severe in nature, the infliction of which would cause a very high level of pain. The jury had the benefit of extensive expert evidence on this aspect of the matter, and it was well open to the jury to accept evidence which likely accorded with the general knowledge and life experience of its members. That is, the jury may have readily accepted that significant and deep tearing injuries extending from the clitoris through the external genitalia and into and along the vaginal canal would have been extremely painful, to the extent where only extreme intoxication or unconsciousness could have prevented some cry or other expression of pain being given by Ms Daley.
The jury also had the benefit of 11 sets of life experience when assessing this evidence. It may be assumed that at least some of its members would have had experience of pain, and possibly of extreme pain. That ordinary life experience was available when considering the evidence of Dr Lincoln and Associate Professor Bland, and doubtless informed the assessment made of it. Before us it was contended that, without knowledge of Ms Daley's individual capacity to bear pain, her "pain threshold", the significance of the expert evidence was muted or even irrelevant. That submission should be, respectfully, rejected as nonsense. The jury, with all of the life experience of its members brought to bear, was entitled to conclude that the injuries of which it saw graphic evidence would have caused pain to any woman who suffered them, regardless of any individual capacity to tolerate pain.
Had Ms Daley been able to cry out in pain, it was open to the jury to conclude that she would certainly have done so, and protested at the injury being inflicted on her. That she did not points strongly to her state of unconsciousness or heavy stupor. This evidence in turn supports the conclusion that the jury doubtless drew that Ms Daley did not say "stop it", as Attwater assumed she would if she did not want him to penetrate her in the way he did, because she could not.
This evidence received further reinforcement by the pharmacological evidence, from both Dr Perl and Professor Christie. Both were in agreement that, if Ms Daley did not consume any further alcohol after the acts of intercourse, her blood alcohol level at a time between twilight and midnight on 26 January 2011 could be estimated with rough accuracy by working backwards from her blood alcohol level at death.
If, as we have posited they could and must have, the jurors accepted the evidence of Dr Lincoln and Associate Professor Bland as to the severe nature of the injuries inflicted upon Ms Daley, and how those injuries would affect her subsequent conduct, it was well open to the jury to reject Attwater's self-serving account of Ms Daley laughing, talking, and drinking after the sexual act, and accept the expert opinion that she would have been in too severe pain, and bleeding too heavily, to be happily imbibing further alcohol.
On that basis, it is likely that Ms Daley's blood alcohol level was in the vicinity of 0.46gm/ml, that is, she was likely comatose at the time of the sexual activity, regardless of her assumed heightened level of tolerance to alcohol. The fingertip bruising found on Ms Daley's upper inner thighs is consistent with that conclusion. Her thighs had to be forcibly opened to permit the sexual act perpetrated by Attwater to be carried out; she was not able to move them herself.
That Ms Daley was heavily intoxicated at the time when he thrust his hand or fist into her vagina must have been apparent to Attwater, because of his own observations of her, because of his knowledge of how much alcohol she had consumed, because he regarded her as "off her fucking face" and "blind", and because of the momentum that he used in forcing his hand or fist into Ms Daley's vagina - moderate force at a minimum, to which she made no outcry.
It was well open to the jury to conclude that Ms Daley could not consent to the act performed by Attwater and that he knew that she did not, was reckless as to whether she consented, or had no reasonable grounds for believing that she consented.
With respect to Maris, he was similarly aware that Ms Daley was "blind" on the night of 26 January 2011. He had, as we have already observed, been with her since 25 January 2011 and was aware in a general way of her level of consumption of alcohol. He told D/S Burke on 27 January 2011 that, before they arrived at Ten Mile Beach, she had appeared "a little bit druggie [or groggy]", as she had been drinking even before the two of them drove into town at about 9.30am on Australia Day. He said that he, Attwater and Ms Daley had come up to the sand dunes and "just drank". After having "a good drink" at Site One, they "had a bit of sex". That is, on Maris' account, Ms Daley had consumed a quantity of alcohol after the observations of her in Iluka, when she was regarded as highly intoxicated, had been made.
It was after that, and after Attwater and Ms Daley were, on Maris' account, "having sex there for a fair while" and Attwater had "fisted" Ms Daley, that Maris got "a head job". As to consent, Maris told D/S Burke, "there was no violence or anything like that". We observe here, although it should not require comment, that violence additional to that inherent in an act of unwanted intercourse is not necessary for an act to be a sexual assault. The jury may have thought it significant that Maris appears to have equated an absence of violence with a consensual act. As to consent specifically, Maris gave the following account in answer to questions from D/S Burke:
"Q: How was [Ms Daley] at that stage?
A: She was fine.
Q: How do you know that she was fine?
A: Well, she actually wanted to do it.
Q: How do you know that?
A: Because she just done it, yeah, she, there were no dramas with any of that."
Although Maris claimed to D/S Burke that Ms Daley had moved her body to make room for him to position himself in the back of the troop carrier preparatory to the act of oral intercourse, on his account the oral intercourse occurred straight after the "fisting" that he saw Attwater carry out. On the medical evidence, Ms Daley was either unconscious or stuporous such that she did not respond to pain, or was in such pain that she would not have moved her body to facilitate a further sexual act, much less moaned in pleasure at it.
That a fragment of a cigarette butt with Ms Daley's DNA on it was found at Site One can say nothing about her state of consciousness or cognition at the time of the acts of intercourse. The source of the DNA, whether lip, finger, or transfer, was not established; when or by whom the cigarette was smoked was not established; how or when the cigarette butt came to be in its location was not established. This piece of evidence was entirely neutral, despite the emphasis given to it at trial by Maris.
On all of the evidence Maris' self-serving assertions that Ms Daley was "fine" and "wanted to do it" and moaned with enjoyment as it occurred, were no more than fiction. His description of events could not be true.
Although Maris submitted to this Court that it was not open to the jury to accept the inculpatory part of what he told the police and reject the exculpatory part of it, there being no rational basis to draw a distinction, that submission is contrary to both the legal directions the jury were properly given, and to the likely life experience that the jurors were asked to bring to bear in their deliberations.
During the course of the summing up, Fullerton J correctly told the jurors that it was open to them to accept part of what a witness had to say and reject part. The same general principle applies even more so to an untested account given by an accused person to a police officer in the course of interview. The jury was not obliged to either accept as true or reject as false or unreliable the whole of the accounts given by Maris to police. To do so would be contrary to life experience, which would readily suggest to individual jurors that people can be accurate and inaccurate, truthful and untruthful, in the course of a single conversation, or in all that is said about a single topic.
What Maris - and Attwater - said to police was open to be assessed in light of the whole of the evidence. As noted above, when dealing with ground 1 for both applicants, there were numerous inconsistencies between what each man told others, and what could be established by other evidence. In particular, the account given by each of events after the sexual activity and on the morning of 27 January, were contradicted by other, apparently credible, evidence.
The jury were entitled to take a more nuanced approach to the assessment of what the applicants told police than either a wholesale acceptance or a wholesale rejection of their respective accounts. It was open to the jury to accept those parts of Maris' (and Attwater's) accounts that were against interest, since it is unlikely as a matter of common sense that an individual would fabricate a statement to his or her disadvantage. By contrast, it is likely, or at least possible, that a person in danger of facing criminal penalty for some act might give an untrue account of events, to his or her advantage. Jurors would see such an occurrence in the course of day to day life no less often than the phenomena is observed in the criminal courts.
On that basis, and having regard to the expert and other evidence and its significance, set out above in relation to Attwater, it was well open to the jury to accept Maris' admission that he had placed his penis in Ms Daley's mouth at or shortly after the time when Attwater "fisted" her, but to reject his claims as to Ms Daley "wanting" that act to occur.
The verdict returned by the jury with respect to Maris for this count was well open to it.
We do not understand this Court to have said anything in Tabbah v R [2017] NSWCCA 55 that is inconsistent with our determination of this issue. It should be noted that, in Tabbah, the level of the complainant's intoxication was likely to have been significantly less than that of Ms Daley. Some witnesses regarded the complainant as appearing to conduct herself in a "normal" way at around the time of the commission of the offence, and her likely blood alcohol content was in the range of 0.104 and 0.251gm/ml, although she had also in her body cannabis and an antihistamine, both of which would have had an additional adverse impact on the complainant's sobriety. Of intoxication and consent, Button J, with whom Hoeben CJ at CL and Payne JA agreed, said, at [166]:
"Secondly, repeated watching of the CCTV taken from the second taxi shows that the complainant was grossly intoxicated. Not only did she fall from the front passenger seat many times, she is also to be seen (at picture 80/172 on camera 2) to be lolling back in the car seat with her eyes half-closed in a state of grossly compromised consciousness. That graphic visual depiction of how the complainant appeared, minutes after the intercourse took place, very powerfully supports the proposition that, at the time, she was not providing free and voluntary agreement to it, and the applicant well knew that fact."
Once it is accepted that it was open to the jury to be satisfied of the applicants' guilt of the offence of aggravated sexual assault charged against each, guilt for the remaining offences follows logically to some extent.
In summing up to the jury the trial judge dealt with count 2 first of the charges brought on the indictment. Her Honour then moved to count 3, followed by count 1. That was a logical sequence in which to direct the jury, since count 1 followed count 2 temporally, and the unlawful and dangerous act relied upon by the Crown to establish manslaughter under that head of liability was the sexual assault by Attwater of Ms Daley. Although, in short written submissions filed with leave after the hearing before us, Attwater argued that it would be no more than speculation to conclude that the verdict returned against count 1 was returned on the basis of the jury concluding that the sexual assault was an unlawful and dangerous act, that is the logical conclusion to draw from the jury's conclusion in relation to count 2.
The jury having accepted that Attwater sexually assaulted Ms Daley, the unlawful and dangerous act relied upon by the Crown is highly likely also to have been accepted by it as proved beyond reasonable doubt. When the evidence supporting liability on this basis is carefully considered, that it was open to the jury to so find could not be in doubt.
Proof of manslaughter on this basis of liability is established by proof beyond reasonable doubt:
1. that Attwater did an unlawful act;
2. the act was dangerous; and
3. the act caused or substantially contributed to Ms Daley's death.
That Attwater's act of thrusting his fist or even hand into Ms Daley's vagina without her consent and knowing that she did not consent was unlawful follows axiomatically from the verdict returned by the jury to count 2, which we have concluded was open on the evidence.
That it was a dangerous act is established if a reasonable person in the position of the applicant Attwater, at the time he thrust his fist or hand into Ms Daley's vagina, would have appreciated carried with it a risk of serious injury being caused. The evidence which went to the surrounding circumstances is of relevance when considering the test of dangerousness. The act was carried out upon a woman in a state of high intoxication, at a relatively remote location, with at least moderate force.
The first element of unlawfulness may be accepted to have been established to the satisfaction of the jurors to the necessary standard. There is no issue that the act directly caused Ms Daley's death. The only real argument concerns the question of dangerousness.
There was a solid body of evidence available to the jury upon which it was open to find the element of dangerousness proved to the requisite standard.
The applicant himself told the ambulance officer who attended Ten Mile Beach on 27 January 2011, Mr Jarrett; D/S Burke in the interview conducted that same day; and his friend Ms Norman, within a short period after Ms Daley's death, that he had "fisted" her. The account to D/S Burke was recorded, and the jury were able to hear Attwater's account of "just about" using his fist on Ms Daley. There was no account to the detective of a relatively gentle insertion of finger after finger until four fingers were inside Ms Daley, moving in the "fishtail" motion he described in the interview of 3 March 2011. The jury may well have regarded that first account, given without an extended period in which to construct a more innocent explanation, as more likely to be closer to the truth than the applicant's later inconsistent version of his act.
It received direct support from the applicant's account to Mr Jarrett of "fisting" Ms Daley, at a time when he and Maris were "spit roasting" her, given complete with a demonstration involving the whole of the fist of one hand being moved in and out of the circular structure made by the fingers of his other hand. Mr Jarrett's credibility was challenged in evidence. He acknowledged that he had not referred to the applicant's admission of "fisting" in his statement to police, and it was suggested to him that he had embellished his account of events many years after the incident to draw attention to himself in the context of a television news programme in which he was interviewed. He denied that and maintained the truth of his evidence.
The jury saw and heard from Mr Jarrett and were well placed to make an assessment of his reliability. Bearing in mind his presentation to the jury, its members may have regarded it as unlikely that a highly experienced and senior intensive care paramedic would fabricate or misstate evidence of that nature. That assessment was open, as was an acceptance of Mr Jarrett's evidence. There is nothing inherently unlikely in his evidence which points to its necessary rejection.
The same is true of the evidence of Ms Norman.
As a friend of both Attwater and Ms Daley, who was aware that Ms Daley had died when on a camping trip with the applicant, she asked him what had happened, and was given an account by him of having "fisted" Ms Daley. It was suggested to her in cross-examination that she had exaggerated her evidence because she favoured Ms Daley and her family over the applicant, but she rejected that, describing herself as being in the middle between the two, and rejecting any loyalty to one party over another. As with Mr Jarrett, there is nothing about Ms Norman's evidence that of itself suggests that she lied or was mistaken on this aspect of her conversation with Attwater. It was open to the jury, having seen her as she gave her evidence, to accept it as reliable.
This is important evidence since it is evidence of the applicant's admission to having carried out an act which, the jury might have considered, was one of some inherent violence, having regard to the size of a man's fist, as opposed to the size of the structure into which it was inserted.
That force was required to effect entry into the vaginal canal was clear on the expert medical evidence.
The weight of the medical evidence is to the effect that the most likely mechanism of injury was the forceful insertion by Attwater of the whole of his fist into Ms Daley's vagina, at a time when she was highly intoxicated and, inferentially, unable to act for her own protection and welfare, at a remote location removed from any timely medical assistance.
Dr Cala was not persuaded of the possibility of a four-fingered fishtailing movement causing the second, deeper and longer, wound suffered by Ms Daley. His opinion was that the insertion of a fist with some force over a couple of minutes [this being the movement and time period given by Attwater to D/S Burke in the first interview] was the most likely mechanism of injury.
Associate Professor Dr Bland was of the view that the two vaginal lacerations sustained by Ms Daley were more likely to have been caused by the insertion of a fist and a movement in and out over about 2 minutes than by the fishtailing movement demonstrated by Attwater on 3 March 2011. He accepted that the fishtailing movement might have caused injury, but only if more vigorously executed than Attwater admitted to.
Dr Lincoln thought the scenario described by Attwater in his 3 March 2011 did not explain the severe injuries inflicted. Dr Ellis, called by Attwater, could not say one way or the other, but did say it would be "unusual" for the fish-tailing movement to cause the injuries seen in Ms Daley, with the movement of a fist "more likely" to do so.
The jury had to assess the applicant's claims to have performed precisely the same act upon Ms Daley in the past without complaint from or injury to her, but it was open to its members to reject that self-serving account in light of the medical evidence. The Crown had relied upon the lies it suggested had been told by Attwater to argue that his exculpatory assertions could not be accepted by the jury as credible or reliable. Acceptance of that proposition was open to the jury, as was a conclusion that the act done was one which carried with it an appreciable risk of serious injury. Even if the applicant had performed a similar act upon Ms Daley in the past, there was no credible evidence to establish that it was the same act, carried out with force of a moderate or greater level. That it was not performed in the past on a woman highly affected by alcohol, without the ability to help herself, who was in a remote location is clear, there being no evidence at all of that proposition.
Whilst, in his most recent written submissions, the applicant contended that the Court should have regard to the possible experience of jurors in participating in such an act themselves, or watching pornography of that nature, we would not proceed on that basis. Jurors are asked to have regard to their own ordinary life experiences and common sense in determining factual issues before them; we do not regard that as a basis upon which to speculate that individual jurors had engaged in or viewed what, on all of the credible evidence, was not a sexual act which might be categorised as one within the description of ordinary.
On the whole of the evidence, the verdict of guilty returned to count 1 of manslaughter, charged against Attwater, was open to the jury.
Given the high likelihood of the jury finding Attwater liable for Ms Daley's manslaughter on the basis of an unlawful and dangerous act, it is perhaps not strictly necessary to consider the integrity of a verdict of guilty to manslaughter returned on the basis of criminal negligence. However, for completeness, we have also examined the evidence that supported that basis of liability and concluded that a verdict on the basis of criminal negligence was also open to the jury.
To prove manslaughter under this head of liability, the Crown had to prove that:
1. having caused injury to Ms Daley in circumstances where, due to her intoxication and remote location, removed from other help, the applicant owed her a duty of care;
2. the scope of that duty owed to Ms Daley included a duty to secure timely medical assistance for her;
3. the applicant failed to obtain aid for Ms Daley and thus breached the duty he owed her;
4. his failure to secure medical assistance was a substantial cause of Ms Daley's death;
5. the nature of his breach of duty was such as to merit criminal punishment because it fell so far short of the standard of care a reasonable person would have exercised in all of the circumstances, and involved a high risk that very serious bodily harm or death would follow as a result of the breach.
There is no doubt that, even on Attwater's account, he was aware that Ms Daley was bleeding following the act of intercourse. He told D/S Burke that he noticed "a little bit of blood" on his hand and stopped penetrating Ms Daley's vagina as a consequence. Inferentially, he had linked his act of penetrating Ms Daley, with the blood emanating from her vagina. He knew that Ms Daley was not menstruating, and the blood could not be menstrual blood. Following the act, he said that Ms Daley went to sleep in the back of the troop carrier for a long time. It seems that he did not check on her welfare, despite the bleeding he had observed.
The bulk of the medical evidence was that Ms Daley would have bled rapidly and lost a substantial amount of blood. The crime scene evidence (referred to below in the context of count 3) suggested that the mattress had been soaked through with blood. The jury may have reasoned that Attwater could not have been unaware that something was seriously wrong with Ms Daley and she required medical assistance. It was entirely open to the jury to reject his assertions that there was only a small amount of blood during intercourse and that, thereafter, Ms Daley was well and showed no signs of any distress or illness. His assertions in that regard were inconsistent with the significant body of medical evidence which was largely all in one direction.
Despite having brought her to an isolated location, away from the aid of others, having injured Ms Daley, and being aware that she was bleeding likely heavily, Attwater did nothing to assist Ms Daley, until the following morning when, on one view of the evidence of those first at the scene on 27 January 2011, and on the evidence of Dr Cala in particular, she was already dead.
In the unlikely event that the jury moved to consider the alternative basis of liability for manslaughter, the verdict returned was open on the evidence.
With respect to the third count of doing an act to hinder an investigation, charged against Maris, necessarily the jury concluded, by the verdicts returned in relation to count 2, that Maris was aware of the sexual assault of Ms Daley by Attwater. He told D/S Burke in his first interview that he had seen Attwater "fisting" Ms Daley prior to joining the activity and placing his penis in Ms Daley's mouth.
The Crown had additionally to prove that, in burning the mattress and, at least, Ms Daley's bra, Maris intended to hinder the discovery of evidence concerning that crime. This requires proof of specific intent, to which Maris' state of intoxication or otherwise was relevant.
In support of that aspect of the matter, the Crown relied upon the evidence of what Maris had told police about the fire he lit, the observations of Mr Miller of the fire from further up the beach on 27 January 2011, the crime scene evidence concerning blood depositions and likely blood depositions in the troop carrier, the failure to locate Ms Daley's tracksuit pants and shirt, and the timing of these events to prove the applicant Maris' guilt. In our opinion, it was open to the jury to accept that evidence and return the verdict it did.
Turning firstly to the timing of the fire, the objective evidence was such that the jury likely rejected Maris' account of when and why he set the fire, as inconsistent with the evidence of Mr Miller, and inconsistent with the overall evidence of time.
The applicant told D/S Burke that he decided to burn the mattress because it was malodorous, and started the process after Attwater and Ms Daley had gotten up and gone in for a swim on the morning of 27 January 2011. Working backwards from the time of the call to the Emergency Operator, that must have been at around or minutes before 6am. However, Mr Miller saw the fire, already well alight, with high flames and an apparently heavy fuel load, well before dawn that morning, significantly earlier than Maris had acknowledged to police.
Further, although there was, on the account of Maris, only a very short period between Attwater and Ms Daley going swimming, and Attwater calling out for help, a matter of minutes, the process of stacking the items to be burnt and lighting the fire must have taken much longer. That process involved obtaining diesel from the fuel tank of the troop carrier, a process that itself required fishing rods to be removed from the vehicle, the bonnet raised, and the fuel extracted by a complicated process of bleeding the fuel into a bottle, before resecuring the fishing gear so that it was on the troop carrier when Mr Miller and others arrived. The fire had to be laid and started; and the fuel load gotten well alight, all before Attwater called for help.
That the applicant would have gone to these extraordinary lengths to burn a mattress and (at least) a bra, at that time in the overall chronology of events, because of odour, was inherently unlikely.
That the fire was brought about in these circumstances, within the narrow time frame involved, is unlikely or even impossible on the evidence. His act of obscuring the fire bed by parking the troop carrier over it, points to his active concealment of the fire, a concealment not necessary if he did no more than burn rubbish.
Although it is likely that this account of events was untruthful in terms of the time the fire was lit, the process of lighting it described by Maris was likely to be relatively reliable, and this evidence was available to the jury to inform its consideration of the applicant's capacity to form the specific intent to destroy evidence. If Maris could complete that process prior to calling triple 0, it was open to conclude that he was capable of forming the specific intent to destroy the evidence of the bloody mattress and clothes.
That it was bloody is open to be inferred on the cumulative weight of the medical evidence, and the crime scene evidence. Maris himself told D/S Burke that there was "blood everywhere" after the fisting incident. On Dr Lincoln's evidence, and on that of Dr Bland, it is most unlikely that Ms Daley moved from the mattress in the back of the troop carrier until she was removed from it by Attwater and taken to the ocean on the morning of 27 January 2011. If so, the blood lost would have largely been deposited on her clothing, and on the mattress. Dr Cala estimated that the quantity of blood lost by Ms Daley prior to death was substantial, being almost half of the whole of her body's blood content. It is likely that the mattress and her clothing were very heavily blood stained indeed.
That prospect is strengthened by blood stain pattern evidence to the effect that some blood stains on the floor of the troop carrier likely represented blood having soaked through the mattress to reach the floor and be deposited there.
It is not insignificant in light of that evidence that Ms Daley's tracksuit pants and t-shirt were never found. Since her partially burnt bra was found on the pyre, it was open to the jury to infer that, despite his denials, Maris burnt all of her clothing, and not just her bra (either by accident as he gave it in his first account, or because it was blood stained and he thought Ms Daley would not want it, as he said in his later account). It was also open to infer that he burnt the clothing and the mattress to destroy what would have been the most compelling evidence of wrongdoing.
On the whole of the evidence, we regard it as having been open to the jury to return a verdict of guilty to count 3.
It was submitted that the sentencing judge's conclusion that Mr Attwater must have known the deceased was not consenting appears to have been reached because of her finding as to the deceased's level of intoxication. It was submitted that that earlier finding was flawed.
The Crown submitted that the sentencing judge did not mistake the facts, and her findings were well open on the evidence. The Crown submitted that these findings, that any responsive levels of cognition or reasoning would have been so severely compromised that it would have been obvious to anybody in her company who was paying her due attention and regard that she could not freely and voluntarily consent to intercourse, were made after an extensive analysis of the evidence at trial.
Those findings speak eloquently of Attwater's subjective appreciation of the dangerousness of his unlawful act. To the extent that he did not actually have that subjective appreciation, his moral culpability is not reduced because, as her Honour noted, were he paying the deceased any attention, the injuries from his acts would have been obvious from the "rapid, immediate and either profuse or significant bleeding".
These findings demonstrate that her Honour did not fail to consider the applicant's subjective appreciation of the dangerousness of his acts. When they are considered with her Honour's ultimate assessment of the objective seriousness of the manslaughter offence, it cannot be said that the determination of extreme objective seriousness reflecting a high level of moral culpability was not open to her.
We reject this ground.
On the first day of the trial on 24 July 2017 the Crown presented an indictment against Attwater charging him with the same two offences as those for which he was charged in March 2012 and arraigned in December 2016. On the same day the Crown applied without objection to amend the charges on which Maris had been arraigned by withdrawing the charge of accessory after the fact to Ms Daley's manslaughter and substituting the offence of hindering the police investigation into Attwater's sexual offending.
In her sentencing judgment her Honour relevantly said this concerning delay:
[184] Not infrequently there will be some delay in an accused person being ultimately brought to trial as both the Crown and the accused discharge their obligation to the Court to ensure that the matter is in a state of readiness to proceed. This includes, so far as the Crown is concerned, marshalling all the available evidence and, where necessary, obtaining expert evidence to be adduced in proof of guilt. However, a lengthy or unexplained delay in the decision to prosecute is unacceptable. In this case, there is no explanation from the Director of Public Prosecutions, or by senior counsel who appears on his behalf, for the delay in prosecuting the offenders on indictment, or any explanation for the reversal of his earlier decisions that neither of the offenders would be prosecuted. The delay in the prosecution of the offenders has not only operated unfairly on them but it has also operated to the direct detriment of the family of the deceased and has had the potential to undermine public confidence in the administration of justice generally.
[185] Before considering whether, and to what extent, either of the offenders have established that they have suffered a detriment of a relevant kind such as to attract some leniency in the ultimate appointment of the aggregate sentences because of the delay in the decision to prosecute them, the impact of delay on members of Ms Daley's family, as one of the features of the harm done to them and to the community, are factors I have already determined are to be taken into account on sentence in the way provided for in s 28(4) of the Crimes (Sentencing Procedure) Act.
Her Honour had earlier said this concerning the Victim Impact Statements at [132]:
I am satisfied, on the Crown's application under s 28(4) of the Crimes (Sentencing) Procedure Act, that it is appropriate in this case that the statements from the members of Ms Daley's family, considered both individually and collectively, be taken into account by me in the determination of the sentence to be imposed on Mr Attwater for the death of Ms Daley. I am of that view because the impact of her death on each of them is, in this case, an aspect of harm done to the community. To the extent that it is necessary for me to find in accordance with s 3A(g) of the Crimes (Sentencing Procedure) Act that I should only have regard to the harmful impact of Ms Daley's death on the members of her immediate family as reasonably foreseeable by Mr Attwater, given the circumstances in which the fatal injuries were inflicted and his knowledge of Ms Daley as a mother and a member of her extended family, I am so satisfied.
It was, perhaps, unfortunate that her Honour returned to the issue of the harm to the family and the Victim Impact Statements when dealing with delay in relation to the applicants. However, the point being appropriately made by her Honour was that the delay by the DPP, without any explanation, had not only impacted unfairly on the applicants but also on the family members. What her Honour said at [132] made very clear that she only considered the harmful impact of the deceased's death on the family as was reasonably foreseeable by Attwater. Her Honour then identified what was reasonably foreseeable by him, and it is clear that delay was not one of those features. Having made that point, her Honour then went on to deal with delay only as it impacted upon the applicants.
Her Honour accepted at [190] that the applicant Attwater would have been in a state of uncertain suspense as to whether he would be prosecuted, but she went on to say at [191]:
The Crown submitted that although Mr Attwater relocated to Queensland in 2012 in the expectation that he would not be prosecuted, there was little in the evidence other than his decision to resettle interstate to avoid adverse attention in his local community and forming a relationship with his current partner to support a finding that he has taken positive steps to advance his rehabilitation in circumstances where, as Ms Hare has reported, even after trial he has demonstrated no insight into his past sexual offending and has taken no responsibility for Ms Daley's death. While I accept he has been subjected over a period of years to a state of uncertainty as to whether he would be prosecuted, in circumstances where he has not in the interim or after conviction apparently reflected on the fact that he caused Ms Daley's death, it would appear that he also proceeded in the hope that he would never be called to account for it. Consistent with the authorities to which I have referred, the ameliorating impact of delay on the sentences to be imposed for both offences is moderated significantly for that reason.
Her Honour then concluded:
[198] While the delay in bringing both of the offenders to trial is not a delay for which they are responsible, the impact of the delay (for which I am satisfied the Director of Public Prosecutions is solely responsible) has been productive of effects of differing kinds on the offenders and in differing degrees.
[199] In giving consideration to the impact of delay, it is wholly inapposite to refer to Ms Daley's death in 2011 or the sexual assaults that she suffered at the hands of the offenders at that time as "stale crimes" which might otherwise call for some flexibility in the approach to a sentence where the particular offending has none of the lasting and deleterious effects of an unlawful killing occurring in the context of the infliction of sexual violence.
[200] In the result, delay is but one factor which, together with all factors relevant to the exercise of the sentencing discretion, will need to be reflected in the aggregate sentences to be imposed on both offenders, albeit to a moderate degree.
An examination of her Honour's remarks as a whole does not leave us with any doubt that, when she considered the issue of delay, her Honour did not take into account as a factor going to the sentence the impact of that delay on the members of the deceased's family.
The applicant Attwater's submissions in relation to this ground expressed the matter as a complaint that the sentencing judge did not give the factor of delay sufficient weight because she took into account the effect of delay on the deceased's family. It hardly needs to be said that the question of weight is a matter for the sentencing judge's discretion: R v Baker [2000] NSWCCA 85 at [11]. The discretion in the present matter did not miscarry because no irrelevant matter was taken into account. We reject this ground.
Her Honour referred at [192] to an affidavit of the applicant which made reference to an incident when he was leaving Grafton Local Court in August 2016 where he was grabbed, hit and punched by a crowd of people who threatened him with physical harm using extremely aggressive and abusive language. Her Honour said that Attwater did not seek treatment for any of the physical or psychological effects of the abuse or the harassment on that occasion or previously at the hands of members of the public. Her Honour went on to say that that outburst was not repeated in the lead-up to trial or during the currency of the trial.
Her Honour noted at [193] that where retribution or revenge is exacted by members of the public the Court may take that into account as extra-curial punishment on sentence. Her Honour then concluded:
[194] The abuse that Mr Attwater was subjected to was largely verbal, albeit accompanied by threats of harm, rather than the infliction of any actual bodily injury. In the absence of any evidence that these encounters have been repeated or any evidence that they have impacted adversely on his emotional state in any lasting way, I do not regard them as warranting a reduction on sentence.
In her report dated 26 October 2017, Ms Hare said this:
32. Mr Attwater denied any concern for his mental health prior to 2011. After the death of the victim he apparently became the target of verbal and physical abuse from within his local community, and this gave rise to symptoms of mood disorder, including: low mood; worrisome thoughts; tearfulness; reduced sleep; lethargy; reduced appetite; amotivation; and loss of enjoyment in previously pleasurable activities. After a period, he determined to leave the area and relocated to far north Queensland, which he reported was effective in alleviating his symptoms as no one recognised him or knew of the case. In time he also found employment and formed a stable romantic union with his current partner, which assisted in improving his mental wellbeing.
33. As he was repeatedly re-investigated for the current matter, Mr Attwater's mental health began to decline, and at the time we met (about five weeks after the guilty verdict and his imprisonment) he reported the re-emergence of the aforementioned symptoms. He described feeling persistently "down/depressed", although he denied suicidal ideation or thoughts/feelings of worthlessness. He endorsed worrisome thoughts about his forthcoming sentencing and associated sleeplessness and tearfulness. Mr Attwater additionally reported feeling constantly "on guard" and "fearful" in the prison environment due to the nature of his offences and the fact the victim was a local woman and the case received heightened media attention. He offered that he has been spat at and verbally threatened, and his fearfulness seems justified. When we met, he was remanded in protective custody for his safety, and this meant that his time out of cell was limited to one hour per day, which no doubt was further exacerbating his poor emotional coping.
…
35. Based on his presentation and self-reported symptoms, I formed the opinion that Mr Attwater was experiencing difficulty adjusting to his circumstances. …[H]is symptoms appear to be markedly impacting his functioning and I am of the opinion that he would meet the diagnostic criteria…for persistent Adjustment Disorder with mixed anxiety and depressed mood (characterised by low mood, tearfulness, worry and jitteriness).
Contrary to the applicant's submissions her Honour did not ignore the opinion of Ms Hare as appears at [143], [144] and [189] of her remarks. It is not apparent, however, that the persistent Adjustment Disorder relates to the extra-curial punishment alleged, except for the fact that Attwater was being held in protective custody.
Ms Hare reported that the symptoms he first experienced from the abuse and violence immediately following the deceased's death were alleviated after he moved to Queensland. She said the symptoms re-emerged after he began to be "repeatedly re-investigated" for the deceased's death. The symptoms were said to be related to the further investigations, his fear in the prison environment after the verdicts were given, and the concerns about his then impending sentencing. The diagnosis made was on the basis that Mr Attwater "was experiencing difficulty adjusting to his circumstances", which were his then recent incarceration. Ms Hare also said at paragraph 39 of her report,
The posttraumatic stress symptoms likely reflect Mr Attwater's helplessness at witnessing the death of the victim, and may be a cause of ongoing underlying anxiety when he is unable to distance himself from the experience.
The sentencing judge gave express consideration to the fact that both applicants were being held in protective custody due to concerns for their safety. Her Honour said, however, that it was by no means clear that those custodial conditions would continue, and for that reason she declined to regard those conditions as ameliorating the sentence.
Although the applicant was undoubtedly subjected to abuse and violence as set out in his and his solicitor Martin Bernhaut's affidavits, her Honour gave consideration to those matters, and she considered Ms Hare's report in relation to them. It cannot be said that her Honour's conclusion at [194], which is ultimately a discretionary one, was not open to her.
We reject this ground.
Whether or not a mitigating factor is to be taken into account in ameliorating a sentence is a discretionary consideration for the sentencing judge. Having considered the evidence of the applicant's efforts to revive the deceased in the light of all of his accounts of the events, her Honour's conclusion was entirely open to her. Attwater does not show that there was anything special about his actions. They may be seen, as her Honour undoubtedly did, as being no more than steps to redress the effect of the crimes on the deceased, or the discovery of his responsibility for them.
We reject this ground.
As with the previous ground, a finding about prospects of rehabilitation and reoffending is a discretionary finding within the role of the sentencing judge. In circumstances where the sentencing judge has considered relevant matters, if the finding is open on the evidence, this Court will not review and reconsider the finding. This issue is highlighted in the present case where the complaint is "that a more favourable conclusion should have been reached".
The issue of the likelihood of reoffending is closely related to an offender's prospects of rehabilitation. It may be accepted, in the light of the sentencing judge's remarks, that she rejected the notion that the applicant was unlikely to reoffend. Nevertheless, her Honour's conclusions on rehabilitation and reoffending were reached after considering most or all of the matters which are now put forward to suggest that a different conclusion should have been reached. In that way, her Honour did not ignore matters that she ought to have considered. Her Honour's conclusions were open on the evidence, and particularly for the reasons set out in her remarks at [151] to [154].
No error is shown. We reject this ground.
Her Honour further found that Attwater's prospects of rehabilitation were guarded, and that he lacked remorse.
The maximum penalty for manslaughter is 25 years' imprisonment. The offence committed by Attwater was found to be in the upper range of seriousness. There was little else to mitigate the sentence apart from delay. While an indicative sentence of 18 years was a stern one, it cannot be said, in all the circumstances, to be outside the range of appropriate sentences, nor to be plainly unreasonable or unjust. An additional 12 months to take account of the circumstances of the sexual offending cannot be regarded as outside the range of appropriate accumulation. So much was accepted by senior counsel for Attwater at the hearing of the appeal.
We reject this ground.
The Crown submitted that the cases put forward as comparable in relation to the hindering offence involved other factors that justified a lesser sentence.
Senior counsel for the applicant correctly accepted that where an aggregate sentence is imposed, any appeal is against that sentence. Nevertheless, if it can be shown that the indicative sentences are themselves excessive, that may inform the question of whether the aggregate sentence is excessive, although the fact that indicative sentences are excessive will not necessarily mean that the aggregate sentence is excessive: Kerr v R [2016] NSWCCA 218; (2016) 78 MVR 191 at [114] (per Bathurst CJ, Hoeben CJ at CL and Price J agreeing).
It should first be noted that the indicative sentence for the sexual assault charge is less even than the standard non-parole period for the offence. That is relevant because, as her Honour noted at [110] of her remarks, the standard non-parole period and the maximum penalty were both of significance in guiding the exercise of her discretion. Notwithstanding that Maris was convicted after a trial, the assessment by the sentencing judge of high moral culpability for the offence (justified at least by the concession made on behalf of Maris that the deceased was unconscious at the time he had sexual intercourse with her), the finding of lack of remorse, his guarded prospects of rehabilitation and his criminal record, including serious offences of domestic violence committed subsequent to the offences involving the deceased, her Honour indicated a sentence considerably below not only the maximum penalty but below the standard non-parole period. In fact, on the evidence before her Honour, the applicant Maris had few matters which operated in mitigation of any sentence. One matter was the delay in charging for which he received some benefit. The other was his background including his alcohol abuse and ADHD, both of which appear to have limited his education, job prospects, and, seemingly, shaped his attitude to women and his ability to form and maintain relationships.
Her Honour was conscious of the danger of double counting in relation to the sexual assault offence. She said at [102]:
I accept that because Mr Maris's knowledge of Mr Attwater's sexual offending is an element of the offence of hindering there should be no double counting of that feature of his offending in the sentence to be imposed on the aggravated sexual assault, although it will need to be reflected in the aggregate sentence.
The applicant Maris submitted that the sentencing judge did not refer to the report of Dr Dayalan, a psychiatrist who examined him on about October 2017, when dealing with prospects of rehabilitation. Dr Dayalan had said:
Mr Maris can be considered to have reasonably good prospects of rehabilitation given his current relationship status, employment history and engagement with treating psychiatrist following the offences.
Her Honour did make reference to Dr Dayalan's report in relation to the issue of rehabilitation. Her Honour said at [167] of her remarks, when dealing with submissions of his counsel about that matter:
Mr Wasilenia submitted that given Mr Maris's assessment by the author of the pre-sentence report as at a medium risk of re-offending, and that the actuarial risk assessment indicated that he has an average risk of sexual re-offending, his compliance with treatment recommendations outlined in Dr Dayalan's report would advance his prospects of rehabilitation. Counsel submitted that Mr Maris has responded positively to treatment for his mood fluctuations and his ADHD before entering custody. I note that Dr Dayalan considered Mr Maris would be less likely to relapse into an alcohol use disorder if his anxiety is reduced and that he appeared to be motivated to refrain from excess alcohol use in the future.
Her Honour was not, of course, obliged to accept Dr Dayalan's opinion. In that regard, it is significant that Dr Dayalan did not appear to have the information her Honour had concerning Maris's offending since the deceased's death. That he had offended further at all was significant for an assessment of his prospects of rehabilitation. However, when the offending involved what amounted to domestic violence against his then partner, her Honour was entitled to give little weight to Dr Dayalan's opinion, especially as he cited the applicant's "current relationship status" as a basis for his opinion on rehabilitation. That relationship was only of two to three months' duration, and Dr Dayalan had already noted that Maris "had had a number of romantic relationships but they had usually been short-lived, lasting no more than 12 months".
The Crown's submissions with regard to the cases put forward as comparable in relation to the sexual assault charge should be accepted. The case of R v Button; R v Griffen was a conviction appeal where no comment was made about the sentences imposed at first instance. The case of Perrin involved a count of sexual intercourse without consent not in circumstances of aggravation. The appellant was aged 18 years with no prior convictions.
In all the circumstances, it cannot be said that her Honour's indicative sentence for the sexual assault offence was outside the range of appropriate sentences.
What her Honour said in relation to the hindering offence in her sentencing judgment at [112] has been set out above at [513]
The applicant Maris submitted that her Honour should have found that there was no evidence that his conduct had impacted on the decisions of the DPP which resulted in delay in charging the applicants. There was, however, no evidence about that matter, and her Honour was correct in saying that she could not make a categorical finding about the matter. The statement is not against Maris's interest.
The applicant submitted further that the only conceivable motive for Maris burning the mattress and clothing was a misguided attempt to protect Attwater. It may be accepted that this is the most likely explanation for his actions, but it cannot be said that it reduces his moral culpability in any way, particularly because he was involved in the sexual assault of the deceased at the same time.
It was suggested that R v Smith [2017] NSWSC 900 and Ibrahim v R [2005] NSWSC 128 were useful comparable cases.
In Smith, the offender hid a knife and some other items used by his girlfriend when she told him that she had stabbed someone. Later the same day, he found out that the victim had died. He then told the police what he had done and showed them the hidden items. Button J held that it was a serious example of a serious offence. He sentenced the offender to a non-parole period of eight months with a balance of term of seven months.
In contrast to the present offending, the offending in Smith was extremely short-lived. The offence was found to have been motivated by a "foolish desire" to protect a person he loved. The offender was found to be remorseful. The circumstances of such short-lived hindering might well be thought to be at the lower end of objective seriousness when it was brought to an end by the offender's own confession. It was also necessary for the sentence to take into account, on the totality principle, other offences of cultivating a prohibited drug discovered at the time of the offender's admission. In the present matter, the hindering was of a permanent nature which on any view must have restricted the investigation of the offences. The applicant Maris was not remorseful, and the hindering was partly motivated by self-interest.
In Ibrahim, a person named Walid Ahmad killed another person. The offender gave advice to Ahmad as to what he should do to avoid the police finding him following the killing. The effect of the hindering was succinctly stated at [5]:
The offender accepts that by his acts the police investigation was compromised by the delay in arresting Ahmad for a period of about a month after the killing. The delay had an impact upon the police use of forensic and ballistic aids to investigate the shooting and discouraged other persons from coming forward with information. As a consequence a relatively simple straightforward investigation became an expensive and difficult one.
Howie J held that the conduct of the offender fell at the very lower end of the scale of offending. The offender pleaded guilty. The offender was effectively sentenced to 20 months' imprisonment with a non-parole period of 15 months but the sentence was wholly suspended. The Crown had consented to a suspended sentence. There was a parity issue with another offender, and the offender had health difficulties which made periodic detention unsuitable. These matters, together with the consideration that the sentencing judge in the present case found the applicant Maris's offending reflected a high level of moral culpability, mean that Ibrahim is of very limited usefulness as a comparator.
Although a sentence of four years may be thought to be a stern sentence, a number of matters suggest that such an indicative sentence does not demonstrate error in the aggregate sentence. First, her Honour found that there was a high level of moral culpability. Where the maximum sentence is seven years' imprisonment, a sentence of four years on that basis alone was open to her Honour. That is the more so when there was no guilty plea, her Honour found no remorse, and any motivation must have partly been informed by self-interest. Secondly, the hindering in the present case resulted in important evidence being destroyed, so that the hindering was of a permanent kind. Thirdly, the notional accumulation produced by the aggregate sentence was one year only.
Ultimately, the appeal is only in respect of the aggregate sentence. Having regard to the foregoing reasons, an aggregate sentence of nine years with a non-parole period of six years and nine months was not outside the range of appropriate sentences for the two offences.