Biljuh v R

Background

1. The trial went from 26 May to 19 June 2015. Having regard to the matters advanced by the appellant, it is necessary to set out aspects of the conduct of the trial, and the evidence at trial, in some detail.
2. The Crown was initially represented by Margaret Cunneen SC. On 28 May 2015, Ms Cunneen withdrew from the trial following her instruction to appear being withdrawn. On the same day, Christopher Maxwell QC appeared for the Crown, and applied for the jury to be discharged. This request was refused and the matter was adjourned until 2 June 2015: R v Biljuh [2015] NSWSC 660.
3. When the trial resumed on 2 June 2015, Phillip Hogan appeared for the Crown. The Crown sought to renew the application that the trial be adjourned for another week, in order to fully prepare the brief, also raising the possibility of discharging the jury. The application was opposed by the defence. The trial judge adjourned the trial until 4 June 2015: R v Biljuh (No 2) [2015] NSWSC 702.
4. The trial continued on 4 June 2015.The jury retired to consider its verdict at 11:07am on 22 June 2015. The jury returned at 12:17pm that day with a verdict of guilty of murder.
5. On 16 December 2017, Button J sentenced the appellant to 30 years' imprisonment, with a non-parole period of imprisonment for 22 years and 6 months. The appellant is eligible for parole on 5 September 2036: see R v Biljuh (No 7) [2015] NSWSC 1917.

Summary of the Evidence at Trial

1. The summary set out below is taken from the transcript and from the exhibits tendered. It is not intended to be comprehensive, and does not include the evidence of all witnesses, but reflects the particular matters relied upon by the appellant in his grounds of appeal and in his written and oral submissions in support of those grounds. Given that the appellant, in his grounds and submissions, relies upon "inconsistencies" within or between the evidence of different witnesses, it is necessary to set the evidence out by reference to the witness who gave the relevant evidence.
2. The deceased lived with her eldest son Nenad (John) Biljuh ("Nenad") at the family home in the Sydney suburb of Villawood (the "deceased's home"). She also had a daughter, Gabriella Biljuh ("Gabriella"), who lived in Melbourne. On the property is a main house and a granny flat. There is also a laundry and bathroom attached to the main house. There is no access to the house from the laundry bathroom area. The granny flat is separate from the main house. The main entrance to the granny flat consists of a sliding screen door and a glass sliding door. A different key is required to open each door.

Nenad Biljuh

1. Nenad described "several break-ins, thefts" at the deceased's home. He said that his keys and wallet were stolen. He could not "remember the exact date" that his wallet went missing but thought "it was a few months prior to" 14 February 2014. The keys, which included both the key to the screen sliding door to the granny flat and the key to the house, went missing maybe a few weeks or a month prior to the death of the deceased. In response, Nenad and the deceased increased the security on the house and changed the locks for the main house and the sliding screen door to the granny flat.
2. There were only two keys to the sliding screen door to the granny flat, the keys were short with a black plastic head and a number on them. The deceased and Nenad each had one of these keys.
3. There had been two keys to the glass sliding door of the granny flat but, as set out above, Nenad's had been stolen. Thus, by about a month before 14 February 2014, the only key to the glass sliding door to the granny flat was the deceased's. In cross-examination, Nenad said that he thought the deceased would have told him if she had made extra keys but agreed he could not exclude the possibility that in the days before 14 February 2014 the deceased had extra keys made.
4. On 13 February 2014, Nenad went to the Roads and Traffic Authority ("RTA") and the NRMA to pay the compulsory third party ("CTP") insurance and registration on one of two jeeps he owned. He was given a receipt for the green slip and the registration papers for his car. That night he put those papers, in addition to another CTP green slip on the dining room table of the granny flat. He said he last saw those papers on the table in the dining room of the granny flat on the morning of 14 February 2014 before he went to work.
5. Nenad saw the deceased on the morning of 14 February 2014. He left home at the usual time, around 5:30am. He gave evidence that before he left for work the glass sliding door was not damaged, nor was the lock to the screen door: "they were both in working order". Nenad had his keys in his pocket when he left for work.
6. When he was at work, at about 11:00am, Nenad received "three unusual text messages". These stated: "THIS IS NOT A JOKE WE HAVE BEEN MONATORING YOU INSTRUCTIONS TO FOLLOW NOTIFYING AUTHORITIES WILL TO YOUR DAUGHTERS HARM" "YOU WILL PLACE $20K IN THE PLASTIC CASE IN THE BOOT OF YOUR CAR THEN DRIVE THE AND MONEX TO APEX PARK AND LEAVE THE CAR THERE AT 7PM" "WERE ON YOU WILL LEAVE YOUR CAR TOMORROW AT 7PM YOU WILL COLLECT YOUR CAR AND FIND A NOTE WHICH YOU WILL HEED. FAILURE IS NOT AN OPTION"

Troy Christopher Townsend

1. Mr Townsend lived next door to the deceased with his grandmother. His mother, Karen Townsend, lived a few streets away.
2. Mr Townsend left his house around 6:15am on 14 February 2014 to take his wife to Lidcombe train station. He saw the deceased walking past his house and he said good morning and she said the same in reply. The deceased was by herself and he did not see anyone else in the vicinity. He returned around 6:45am and when he was driving along Alcoomie Street he saw the deceased walking up that street "like she was going back to her house".
3. When he returned home, he went to bed (he was in "nightshift routine"). His window was about two metres from the "closest part of the granny flat". At about 7:00am he "heard a female voice in an aggressive manner swearing, like an argument of some type" which he described as "an angry outburst", "aggressive type" which lasted about three seconds. He heard the words "[y]ou go fucked with my kids" or "[y]our fucking kids", and "then it toned down straightaway". He did not hear any more noise or movement after that. He described this voice as female "with an Australian accent". In cross-examination Mr Townsend agreed that the deceased had an accent, that when he heard the female voice he did not recognise it as his neighbours voice and that he thought that the voice came from someone else.
4. Mr Townsend then "checked my house around the doors and the windows and that to see if it was all fine", he looked down the side of the house next to the deceased's home and saw "no movement or nothing" so went back to his room and lay down again.
5. Mr Townsend woke up at around 2pm or 2:30pm in the afternoon. Karen Townsend and his grandmother were there. They went looking for the deceased. After some time, Nenad and Mr Dinh arrived and they began looking for the deceased. He went back to his grandmother's house when the telephone rang. After that phone call "they received some news" and returned to the deceased's house. There he saw Nenad "very upset. He was crying, and just in a bad way". He heard Nenad showing the police officers his phone and threatening texts and referring to "some documents in the backroom that people were after, or he can get them for him".

Van Hoa Dinh

1. Mr Dinh was a friend and colleague of Nenad. On 14 February 2014, Mr Dinh picked up Nenad from the Villawood shopping centre around 5:45am and drove him to their work in Rouse Hill. Mr Dinh and Nenad left work early that day. Nenad asked Mr Dinh to go home with him because he was worried about the deceased.
2. When they arrived at the deceased's home, roughly after 4:00pm, they began looking for her. Both Nenad and Mr Dinh tried to open the granny flat. Nenad indicated he did not have the key for it, and asked Mr Dinh to go to his place to get a grinder to cut "the thing" so Mr Dinh went home.
3. Mr Dinh said it took "probably ten minutes, or 15 minutes" to get to his house in Cabramatta and get the grinder. When he returned, they managed to open the door without the grinder. Nenad entered the granny flat "straightaway, and … yelled just, "Van, mum dead"."

Gabriella Biljuh

1. Gabriella described a close relationship with the deceased and said that they spoke on the phone two or three times a week, sometimes every day. She said that about three years prior to the deceased's death, when the appellant was living with the deceased after he broke up with his wife, he had slapped the deceased when she confronted him about things which were missing.
2. She also gave evidence of a Facebook message she had received from the appellant a few years prior to the deceased's death when he had asked her to "tell the bitch that whelped us to drop dead" or something to that effect.
3. She gave evidence that the deceased had called her a few times when she spotted the appellant near her home. Gabriella did not recall exact dates but reported this happened just before Christmas 2013 and about two weeks prior to her death, sometimes at 6:00am. She said the deceased told her that the appellant used to hang around the creek at the bottom of the house, sometimes at the roadblock, and that he would watch and when he spotted her he would walk off.
4. Gabriella gave evidence that the deceased told her that on one occasion the appellant walked in the front gate; the deceased asked what he was doing and he "told her off and left". She also gave evidence that the deceased told her that she had seen the appellant in the house (although she later said this was "in the area" or "in the street") "definitely" five times between Christmas 2013 and the time of the deceased's death, but that she was sure that it was more.
5. About a month before her death, the deceased told Gabriella that the locks had been broken and that Nenad and the deceased changed the keys as a result. She sent Gabriella photos of the broken locks. Those photographs were tendered in the trial.

Valentin Pavlovic

1. Valentin Pavlovic ("Mr Pavlovic") lived in Burwood Heights in a property owned by his mother who lived in the house downstairs ("Burwood Heights property"). From January 2014, the appellant was sleeping on the couch in the living room of the Burwood Heights property.
2. Mr Pavlovic gave evidence that on the morning of 14 February 2014 an alarm went off at some time between 4:00am and 4:30am and he thought it was coming from the living room and that it was the appellant's alarm. He rang the appellant's phone number, with no answer and on the third ring was about to get up. As he went to get up the alarm stopped so he stayed in bed.
3. After that, Mr Pavlovic woke up again around 7:00am or so and went past the living room at about 7:30am or so. He said he didn't see or speak to the appellant, and that he "just saw the blanket that he normally has in a dark corner on the couch, and I just saw a mound, so I wasn't going to look at him or disturb him". He described what he saw as follows: "It was sort of peripheral, because the direction I take from my bedroom, it is just basically to the left and down the staircase, and that was to the extreme right in the far corner. It is a relatively large size room, so you know, it's, I didn't feel any reason to look at it and that's the thing."
4. When asked in cross-examination whether he had seen the appellant sleeping that morning he said: "Well as I said, I walked past, the periphery I could see the blanket and the mound, I assumed it was him, and I just walked out."
5. He said the mound of blankets was "[p]robably about 10 metres" away from him and the blinds were closed. He left the house for work "probably after 8.15 but no later than about 8.40. But it's probably closer to 8.30 or 8.20 or something like that". Mr Pavlovic said that on 14 February 2014 he heard from the appellant probably at about 7:00pm when he asked to go out to a hotel with Mr Pavlovic and Anne-Marie Marmarinos ("Ms Marmarinos"), the appellant's then partner.
6. Mr Pavlovic also gave evidence in cross-examination about his relations with Nenad. He had contemplated a class action against Nenad and he was aware that others were also contemplating a class action against Nenad as at February 2014. He said that he was owed money by Nenad and that Nenad was responsible for the condition of a property on the South Coast that had led to a large economic loss.

Anne-Marie Marmarinos

1. At around 7:00pm on 14 February 2014, Ms Marmarinos went to the Burwood Heights property. The appellant's children were there with the appellant. From there, they went to the Spanish Inn Motel and "stayed for a few minutes" and then went to dinner at the Horse and Jockey (a pub on Parramatta Road) with the appellant and his children. After dinner they "came back" and the appellant put the boys to bed. The appellant and Ms Marmarinos watched some television and then fell asleep.

Detective Senior Constable Rogerson

1. DSC Rogerson and Detective Sergeant Apolony interviewed the appellant, with the ERISP marked "First ERISP Biljuh" tendered at the trial.
2. DSC Rogerson also described a search of Mr Pavlovic's house on 15 February 2014. Mr Pavlovic identified items found upstairs of the home which belonged to the appellant; from there DSC Rogerson went into the lounge room. There DSC Rogerson found a grey backpack and there were "a number of paper documents in the name of Nenad Biljuh inside the bag". Those documents included the registration papers that Nenad had only obtained on 13 February 2014 and said were on the table when he went to work on 14 February 2014.
3. DSC Rogerson also found a blue Fitness First backpack which Mr Pavlovic said belonged to the appellant. Within the backpack DSC Rogerson found a number of keys, a tea towel, blue disposable gloves, red coloured rope which was neatly rolled up, a roll of silver duct tape the edge of which appeared to have been torn, some black duct tape, some cable ties in a zip lock bag, a pair of white material gloves, a large pocketknife, and a headtorch.
4. The appellant was present for part of the search. He said the rope, tea towel and duct tape were left over from moving, and the keys were accumulated from all over the place. He said he took the RTA Certificate and documents in Nenad's name when he went to see Nenad, "that night I went to see him … long ago", when he was looking into a possible class action against him.
5. The keys found in the appellant's blue Fitness First backpack included a broken key that Nenad identified as the key to the sliding screen door which was missing from the house when the deceased was found on 14 February 2014. A second broken key was on the same set of keys (on two interconnected key rings) as the broken key to the sliding screen door.

Senior Constable Dusting

1. SC Dusting, from the Forensic Ballistics Investigation Section of the Forensic Services Group, gave evidence that: 1. He received two connected key rings with ten complete keys and two broken keys, one broken key blade, one sliding lock mechanism, and a second sliding lock mechanism which was disassembled to reveal a broken key blade in the cylinder; 2. His forensic analysis showed that the two broken keys matched the two broken key blades and that the keys were the keys to the two sliding lock mechanisms.
2. Senior Constable Dusting was not cross-examined.
3. The two sliding lock mechanisms were those to the sliding screen door and the sliding glass door to the granny flat at the deceased's house.

Plain Clothes Constable Eames

1. On 15 February 2014, during a search of the Burwood Heights property, PCC Eames observed a number of cardboard boxes in the lounge room, with "light brown masking tape" but that tape "was different tape, completely different" to the grey coloured duct tape found in the blue Fitness First backpack.
2. PCC Eames also gave evidence that on 17 February 2014, Nenad called him to tell him he had located his mother's glasses. He went to the deceased's home and while he was there Nenad gave him a copy of a handwritten letter that Nenad said had been received some time the previous year (the "letter").
3. The letter was dated "6/7/13". It stated: "Dear Mother The reason I am writing to you. This is the third last task I have to complete before I draw the curtain upon my own existence. I want you to know some things. The four times in my life that you told me, that I was not welcome and that I am not your son nor part of your family. Those moments destroyed me. And when you told me that you would only attend my wedding was to ruin the day for me. I never could understand how the woman whom had brought me into this world, could has such resolute loathing toward her child. That is one of the few things in my life I could never resolve nor reconcile. I seek not forgiveness. For my sin or my sins, I am truly sorry. I have just one final request that I pray you do for me. Once my last two tasks are complete and I forfeit myself for this world. I ask that not you, nor your son nor your daughter, nor their spawns, attend my funeral. Goodbye Not your son Dario"

Dr Van Vuuren - forensic pathologist

1. Dr Van Vuuren found that the deceased's cause of death to be asphyxia but could not exclude strangulation including manual strangulation by application of blunt trauma to the neck.

Vivien Beilby

1. Vivien Beilby, Senior Forensic Biologist at the Forensic Biology and DNA Laboratory of the New South Wales Forensic and Analytical Science Service gave evidence that: 1. Samples of both the appellant's and the deceased's DNA had been tested to derive a DNA profile for each of the appellant and the deceased. 2. DNA material recovered from the interior of a blue latex glove (found in the appellant's blue Fitness First backpack which was found where the appellant was staying at the Burwood Heights property) had the same profile as that of the appellant and that profile was expected to occur in fewer than 1 in 100 billion individuals in the Australian population. 3. DNA material recovered from the exterior of that glove had a mixture originating from at least two individuals. The major component of the mixture had the same profile as the appellant and the minor component had the same profile as the deceased. 4. DNA material recovered from the interior of the second blue latex glove found in the appellant's Fitness First backpack also had the same profile as that of the appellant and the same statistical significance as the first glove. 5. DNA material recovered from the exterior of that glove was a mixture originating from at least two individuals. The major component of the mixture had the same profile as the deceased, and that profile was expected to occur in fewer than 1 in 100 billion individuals in the Australian population. The appellant could not be excluded as the minor contributor to the profile. 6. DNA material recovered from the top of each of the left and right sleeves of the deceased's dress was a mixture that appeared to originate from two individuals and the appellant and the deceased could not be excluded as contributors to this mixture. There were also traces of DNA from at least one other individual but at levels too low for further interpretation. 7. DNA material recovered from the front collar of the deceased's dress had the same profile as the deceased. 8. DNA material recovered from the back collar of the deceased's dress originated from at least two individuals and the major component of this mixture had the same profile as the appellant, and that profile was expected to occur in fewer than 1 in 100 billion individuals in the Australian population. The minor component had the same profile as the deceased. 9. DNA material recovered from a swatch of material from the back of the deceased's dress had the same profile as the deceased. 10. Seven samples of DNA material recovered from the silver gaffer tape on the deceased's head were also tested. As regards one sample, the level of DNA was too low for the profile of an individual to be determined. Another had the same profile as the deceased. A third had a mixture the major component of which was the deceased and the minor component could not be determined. A fourth had a mixture that appeared to originate from two individuals and the appellant and the deceased could not be excluded as contributors. A fifth had a mixture that originated from at least two individuals and the major component had the same profile as the deceased but "[d]ue to the low level and complexity of the minor component further interpretation" was not carried out. For the sixth, the partial DNA profile recovered had the same profile as the deceased. As regards the seventh, the partial DNA profile recovered had the same profile as the deceased and DNA from at least one male individual was also recovered but at levels too low to determine a profile. 11. Three samples of DNA material recovered from the roll of silver gaffer tape found in the appellant's blue Fitness First backpack were also tested. The first, from both sides of the roll of tape, was a mixture that appeared to originate from two individuals and the deceased and the appellant could not be excluded as contributors. Due to the low levels and complexity of the mixture, further interpretation was not carried out on the second sample, from the torn end of the roll of tape. The DNA recovered from the third, from the non-sticky surface of the roll of tape, was a mixture that appeared to originate from two individuals and the deceased and the appellant could not be excluded as contributors to the mixture. 12. DNA from a piece of hair that was located inside one of the latex gloves found in the appellant's blue Fitness First backpack had the same DNA profile as the deceased, and that profile was expected to occur in fewer than 1 in 100 billion individuals in the Australian population.

DSC Phillip Taylor

1. In the course of investigation, DSC Taylor obtained closed circuit television ("CCTV") footage from Sims Recycling Solutions, from a camera at that business facing down the same street as the deceased's home. An edited portion of the CCTV footage, which related to a point in time around 7:10am on 14 February 2014, was tendered as Exhibit QQ. The footage displayed a red car apparently with a yellow number plate driving along the deceased's street in a direction away from the deceased's home.

The appellant's evidence at trial

1. The appellant gave evidence that he had broken into the granny flat at the deceased's home four times: the first time was mid-September 2013 and the last time was 13 February 2014. He said his reason each time for breaking into the granny flat was: "to see if I could gather any information or find out anything that might be useful against my brother in the class action." He said he also visited the home twice. Once was to visit the deceased and once was to visit Nenad.
2. The appellant denied much of the evidence from Gabriella as to his interactions with the deceased prior to February 2014, but he said he remembered the deceased saw him once.
3. When shown the letter to the deceased (see [57] above), he said it was in his handwriting "except for the date in the top" and that he "wrote it in 2013, exactly when I'm - exactly when it was delivered I can't remember for sure. But I think around the middle of 2013, yes".
4. He accepted that he lied to the police on a number of occasions in both of his police interviews. In his first police interview, on 15 February 2014, he had lied when he said that he had not been at the deceased's home since October 2013. He said he lied to police because he did not want police to know about the break-ins because he could not see how they were connected to the deceased's murder. During his second interview he had lied when he said that he had in fact been to the granny flat on 11 or 12 February. He said the truth was that he had in fact been to the granny flat on 13 February 2014.
5. He said that in the evening of 13 February 2014: "I actually attended [the deceased's home], and I initially went to speak with my brother, but he left while I was sort of hiding in the laundry area and then when he left, he left the back yard and then a few minutes after he left the backyard I actually heard his car drive off."
6. He said he arrived at the deceased's home around 7:30pm. The granny flat was open, so he did not "physically break-in" and that he entered the granny flat. The appellant agreed that he took the blue Fitness First backpack with him on the last occasion he went to the deceased's home which he said was on 13 February 2014.
7. From the granny flat, he took a set of keys. He agreed that the keys that he took were the ones later found by the police. He said that it was not possible that those keys were in the possession of the deceased on the morning of 14 February 2014 as he took them on 13 February 2014. He also took registration papers and the CTP green slip in Nenad's name, as well as some invoices from Nenad and a bottle of water out of the fridge. He said it was not possible that the RTA registration document and the CTP green slip were still on the premises on the morning of 14 February 2014.

Grounds of appeal

1. A number of the grounds of appeal rely upon the trial being "unfair". By this, I have assumed that the appellant's contention is that there was a miscarriage of justice within the third limb of s 6(1) of the Criminal Appeal Act and that the Court would not find that "no substantial miscarriage of justice" had occurred and would thus not apply the proviso in s 6(1).
2. In Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937 ("Hofer"), Gageler J held, at [123]: "Except in the case of an error or irregularity so profound as to be characterised as a "failure to observe the requirements of the criminal process in a fundamental respect", an error or irregularity will rise to the level of a miscarriage of justice only if found by an appellate court to be of a nature and degree that could realistically have affected the verdict of guilt that was in fact returned by the jury in the trial that was had. Only if that threshold is met is a miscarriage of justice established." (Footnotes omitted)
3. As Beech-Jones CJ at CL noted in AK v R [2022] NSWCCA 175 at [5], Gageler J's conclusion in Hofer at [123] is consistent with the observation of the plurality (Kiefel CJ, Keane and Gleeson JJ) in Hofer at [41] that a "miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused".
4. As summarised by N Adams J in Xu v R: "[101] In order to establish a miscarriage of justice, the applicant must show that there is a 'real chance' that what occurred affected the jury's verdicts: Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [47] per Kiefel CJ, Keane and Gleeson JJ; at [118] per Gageler J. As Beech-Jones CJ at CL (with whom Davies and Wilson JJ agreed) observed in Zhou v The Queen [2021] NSWCCA 278 at [22]: "To constitute a miscarriage of justice under s 6(1) of the Criminal Appeal Act 1912 such an irregularity has to be prejudicial in the sense that there was a 'real chance' that it affected the jury's verdict (Hofer at [41] and [47] per Kiefel CJ, Keane and Gleeson J; at [118] per Gageler J) or 'realistically [could] have affected the verdict of guilt' (at [123] per Gageler J) or 'had the capacity for practical injustice' or was 'capable of affecting the result of the trial' (Edwards v The Queen [2021] HCA 28 at [74] per Edelman and Steward JJ)." [102] Only if the appellate court is satisfied that there has been a miscarriage of justice does the court turn to the question of whether it is satisfied that no 'substantial' miscarriage of justice actually occurred. While there is no universally applicable test for when there will have been no substantial miscarriage of justice, an appellate court can only conclude that no substantial miscarriage of justice occurred if it is satisfied that evidence properly admitted at trial established guilt beyond reasonable doubt: Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 at [20] and [41]. This requires a consideration of the nature and effect of the error that gave rise to the miscarriage of justice: Orreal v The Queen at [20] and [41]."

Ground 1: conduct of the prosecution led to an unfair trial, causing the trial to miscarry

1. The appellant identifies the following matters, set out in summary form only, in support of ground 1. The appellant also relies also upon rules 83, 84, 85, 87 and 93 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) and the prosecution guidelines issued under s 13(1) of the Director of Public Prosecutions Act 1986 (NSW) (described by the appellant as the "ODPP Guidelines"): 1. In opening address, the Crown misrepresented evidence of the letter found at the crime scene from the appellant to the deceased. 2. In opening address, the Crown spoke about CCTV footage obtained from Sims Recycling Solutions, Villawood ("Sims Recycling Solutions CCTV"), which had not been part of the brief of evidence. 3. In closing address, the Crown misled the jury as to Nenad's evidence as to the location of his car when Nenad had given inconsistent statements about this matter. 4. In closing address, the Crown misled the jury by stating that on the day of the offence, the granny flat locks were undamaged as this was contradicted by photographs and evidence given by Gabriella during the trial. 5. In closing address, the Crown intemperately stated that Mr Townsend did not discern any accent, then submitted to the jury that it ought not discount that the voice heard was that of the deceased or, alternatively, infer that it was the appellant who Mr Townsend heard, when this was not Mr Townsend's evidence at trial and "goes directly against" Mr Townsend's evidence. 6. In closing address, the Crown made indefensible and fraudulent claims about Mr Pavlovic and his supposed involvement at Apex Park, when this was not supported by evidence nor put to Mr Pavlovic or the appellant during the trial. 7. In closing address, the Crown "made a false claim" that was indefensible being that the appellant gave permission to the police to attend the Burwood Heights property to obtain his phone and computer when this was both misleading and not put to any witness or the appellant during the trial. 8. In closing address, the Crown falsely stated to the jury that there was no other explanation to the facts of the case, when that claim was "fraudulent", "coercive and designed to prejudice the jury against" the appellant. 9. The whole tenor of the Crown's address was intemperate with multiple indefensible and unsupported and misleading claims, designed to prejudice the jury against the appellant.

(i) Letter at crime scene

1. Towards the conclusion of the Crown's opening address, reference was made to a handwritten note: "The police found a handwritten note at the home of the deceased which was dated 6 July 2013 and signed with the words, "Not your son, Dario." Its contents it is a matter for, you ladies and gentlemen, but the Crown will ultimately submit to you that they reveal a clear rift in the relationship between mother and son. That particular note was subjected to fingerprint analysis and the fingerprints of the accused, his mother and his brother, Nenad, all appear on that note."
2. As set out above, the appellant accepted that he wrote this letter ("except for the date at the top") and sent it to the deceased in 2013. The evidence of PCC Eames at trial was that the letter was given to PCC Eames by Nenad when he attended the deceased's home in the afternoon of 17 February 2014. That is consistent with the witness statement of PCC Eames which was tendered by the appellant for the purposes of this ground of appeal.
3. The appellant's complaint appears to be with the description from the Crown in opening that the letter was "found" at the deceased's home. In oral submissions the appellant submitted that he would have been able to pursue other lines of inquiry if he had appreciated that the letter had not been found at the crime scene but had been handed to the police by Nenad on 17 February 2014.
4. The difficulty with this submission is that it was readily apparent from the oral evidence of PCC Eames during the trial that the letter was not found at the crime scene but was handed to him some days later. Thus, whilst it would have been more accurate for the Crown, in opening address, to have identified that the letter had been handed to police at the deceased's home, rather than found at the deceased's home, in my judgment that does not lead to any miscarriage of justice. It was readily apparent from PCC Eames' evidence at trial, and from his statement as tendered by the appellant, that the letter was in fact handed to the police by Nenad some days after the deceased died.
5. In any event, the significance of the letter lay in its contents not in how it was first identified by the police.

(ii) Sims Recycling Solutions CCTV footage

1. The Crown, in her opening address said the following: "Ladies and gentlemen, at the time of his mother's death the accused was in possession of a car, a 1992 red Nissan Pulsar; and it had the standard black and yellow number plates. The investigator in charge of this matter, Detective Senior Constable Phillip Taylor, obtained some CCTV footage from a business called Sims Recycling Solutions, which was also located in Biloela Street Villawood, and there was a camera which was across the road, but about seven houses or so up from Mrs Biljuh's home, and that camera captured at a time which the evidence would suggest was ten minutes past seven, that in any event is what the clock on the CCTV would indicate, at ten minutes past seven on 14 February 2014 a rare four door car with black and yellow number plates driving east in that street which is away from Mrs Biljuh's home. You will see that footage I expect from the CCTV camera."
2. The appellant's complaint (also advanced in ground 2 "failure to disclose") is both that the Sims Recycling Solutions CCTV footage was not part of the brief of evidence, and that the whole of that footage, as opposed just the footage at around 7:10am showing the red car driving away from the deceased's home. In oral submissions, he submitted that: "[I]t wasn't disclosed at the trial and we're only made aware of that disclosure at trial and obviously I'm just a little bit distraught by all that."
3. The clip from the Sims Recycling Solutions CCTV footage at around 7:10am on 14 February 2014, showing a red car driving in a direction away from the deceased's home, was tendered in evidence as Exhibit QQ without objection from the appellant's counsel. The clip was played before the jury in the course of the examination-in-chief of DSC Taylor on 11 June 2015, again without objection. That is all that the Crown referred to in opening.
4. As to the complaint that the Sims Recycling Solutions CCTV footage was not in the brief of evidence, the chronology of the production of material to the appellant, to the extent that it can be ascertained, is set out in an affidavit sworn 23 June 2023 from Ms Kim, a solicitor employed by the ODPP.
5. On 21 April 2015, an email was sent by Mr Michael Jones, ODPP lawyer, to Ms Sophie Toomey, defence solicitor with carriage of the matter for the appellant. This attached a number of documents including a notice of prosecution case ("NOPC"), an index to a brief of evidence and an index to additional material. The NOPC, at (d), had a box checked alongside the entry: "All statements and documents proposed to be relied upon at this time by the prosecution have been served as part of the brief of evidence. The brief index (attachment "A") itemises material comprising the brief of evidence served to date."

(iii) The location of Nenad's car

1. The Crown, in his closing address said the following: "Significantly also, Nenad Biljuh gave evidence that on 13 February he had re-registered the jeep, paid the compulsory third party insurance and as a result of doing that, had obtained a new set of number plates for the jeep. He says that he attached those number plates to the vehicle where it was located, in the back yard of [the deceased's home] in between the main house and the granny flat. The significance of that evidence is, the Crown says, it contradicts the accused's evidence that he went to the granny flat at [the deceased's home] around dusk on the evening of 13 February, and that was the last occasion he was there."
2. The location of Nenad's car and the fact that Nenad had to change the number plates was then relied upon by the Crown as one of the strands making up the circumstantial case against the appellant.
3. The appellant contends that the Crown here misled the jury as Nenad had given inconsistent accounts in his evidence as to the location of his car.
4. Nenad's evidence in cross-examination as to the location of the jeep on 13 February 2014 was that, after having got the vehicle registered and paid for the green slip that day, he obtained a set of number plates and attached them to the vehicle that evening when it was located in the backyard. He said he was 100% certain that it was not on the street. He also said the backyard was between the granny flat and the main house and the car was parked there.
5. There is no inconsistency in this evidence.
6. Moreover, the appellant's counsel, in closing address, also addressed the question of the location of Nenad's car on the 13 February 2014: "I'm going to move now to the next topic, which is the movements of the accused on the evening of 13 February. The accused's position is that Nenad Biljuh, John, simply wasn't there. John says that he was there. The effect of the evidence, you might think, that each is adamant is that the other is wrong. John says, or acknowledges under cross-examination, consistent with the registering of the vehicle on the 13th, that he was out of the granny flat for a period of time fixing number plates to the jeep. The accused's position, you might think, from the tenor of his evidence, was that he was in and out of that flat in a relatively short period of time. There is a real possibility available on the evidence that the accused was in fact, in terms of what the issue of his opportunity to access the granny flat was on the evening of 13th, my submission to you is that the evidence reveals that window of opportunity. You would not be able to conclude, on the available evidence, that it simply wasn't possible."

(iv) the granny flat locks being undamaged on 14 February 2014

1. The Crown in closing address submitted that: "Nenad Biljuh says it was impossible that the keys were broken off in the locks when he left for work on 14 February. He says that when he left for work on 14 February the locks were undamaged and in working order. Now, again, the Crown says that contradicts the accused's account."
2. The appellant contends that this was misleading as it contradicted photographs and evidence given by Gabriella that the deceased told her about a month before 14 February 2014 that the locks had been broken.
3. There is no inconsistency because the evidence was that the locks had been replaced, after they had been broken, prior to 14 February 2014.
4. Further, the appellant's counsel at trial did not suggest, in his closing address, that there was any inconsistency in this regard.
5. I am not satisfied that there was any unfairness as alleged by the appellant.

(v) the evidence of Mr Townsend as to the voice he heard

1. The appellant submits that in closing address the Crown "intemperately stated that Mr Townsend did not discern any accent. Then goes on to put it to the jury, 'not to discount' that the voice he heard was that of the deceased and before inferring, it was the appellant that Mr Townsend heard" which was contrary to Mr Townsend's evidence.
2. During closing address, the Crown said that: "Mr Townsend gave evidence that at about 7 o'clock that morning from his room, which is was located very close to where the granny flat was at [the deceased's home], he heard an aggressive voice that he thought was a female voice coming from the granny flat. He heard words to the effect, "You fucked with my kids or your fucking kids". He heard voice for about three seconds, he estimated. He looked over the fence, but he couldn't see anything. The Crown says that the voice that Mr Townsend heard was the deceased's voice, a female voice, high pitched. Of course, Mr Townsend said he didn't discern any accent. But that the Crown says a period only about three seconds in an agitated state you would not discount that being the deceased on the basis of that description that it didn't appear to have an accent. The other option, of course, in the Crown case is that it could well have been the accused in an extremely agitated voice and, therefore, at very high pitch. Mr Townsend thought it sounded like a female, but in fact it was the accused. Either way, on the Crown case, the evidence of Mr Townsend, the Crown says, is consistent generally with the case that the Crown presents."
3. There is no inaccuracy in the Crown's summary of Mr Townsend's evidence. As set out above, Mr Townsend gave evidence that to him the voice sounded like a female voice, and that it sounded like someone with an Australian accent. It was open to the Crown to submit that this evidence could be discounted by the jury for the reasons the Crown gave. It was also open to the Crown to submit that the voice was either that of the deceased, or that of the appellant.
4. There is no injustice arising from this matter.

(vi) Claims about Mr Pavlovic's evidence

1. The appellant contends that in closing address the Crown made indefensible and fraudulent claims about Mr Pavlovic and his supposed involvement at Apex Park, which was not supported by evidence, nor put to Mr Pavlovic or the appellant during the trial. In the passage relied upon in the appellant's submission as to this the Crown stated: "There was no evidence from Valentin Pavlovic one way or another about the topic the accused gave evidence of this morning that apparently Valentin Pavlovic was involved in this attempted extortion and was supposed to drive past Apex Park about 7 o'clock that night. There is no evidence one way or another from Valentin Pavlovic about that issue".
2. The context for this submission was a text message sent by the appellant to Nenad on 14 February from around 11:00am, tendered as Exhibit B, which stated: "YOU WILL PLACE $20K IN THE PLASTIC CASE IN THE BOOT OF YOUR CAR THEN DRIVE THE AND MONEX TO APEX PARK AND LEAVE THE CAR THERE AT 7 PM".
3. In cross-examination, the appellant said that he was not planning to go to Apex Park on the evening of 14 February, but that Mr Pavlovic was: "supposed to be going to drive past, if the car was there or not. We obviously didn't think that the car would be there"
4. The Crown later put to the appellant that the "suggestion that there was an arrangement with Val Pavlovic that he was going to drive past Apex Park on the night of the 14th of February to see if your brother's car was there, is just not true, is it?". The appellant responded: "It is true".
5. Mr Pavlovic gave evidence on two occasions during the trial, on 27 May and 4 June 2015. He was called by the Crown. He was not asked any questions by the appellant's counsel about any arrangement to drive past Apex Park on 14 February 2014 to see if Nenad's car was there.
6. In these circumstances, there is no unfairness arising out of the Crown's closing statement as to these matters. There was no miscarriage of justice.

(vii) whether the appellant gave the police permission to attend the Burwood Heights property

1. The appellant alleges that the Crown made a false claim that the appellant gave permission to the police to attend the Burwood Heights property to obtain the appellant's phone and computer and that that was misleading and not put to any witness during the trial. In those circumstances the appellant alleges that it was both fraudulent and indefensible.
2. In closing address, the Crown, referring to the appellant, said: "He gave the police permission to search the residence or to attend [the Burwood Heights property] to obtain his phone and computer."
3. As submitted by the Crown, this statement is supported by the following interchange during the recorded interview of the appellant on 15 February 2014 the audio of which was tendered as Exhibit R, and the transcript of which was MFI 6: "Q409 Your phone doesn't have any text messages or talk …. Yesterday and when you go into recent phone calls -- A I can give you another phone to look at if you need to 'cause I was using a, a, other one before that and that one got reset on my computer today. Q410 Today? A Yeah. Q411 What time today? A I'm not sure. Q412 Where's your computer? A At Val's place. Q413 At Val's place? A Yeah. Q414 Are you happy for us to look through your computer? A Yeah. Q415 Bit unusual that everything looked like it starts at midday today on your phone. A Well, you're quite welcome to look through the computer, got no issues with that."
4. Having regard to the evidence set out above, I am satisfied that there was no unfairness or miscarriage arising out of this aspect of the Crown's closing address. In this regard, I also accept the Crown's submission that the statement by the Crown in closing address was not in any event material in the context of the evidence as a whole.

(viii) the Crown's statement that "there was no other explanation to the facts of the case"

1. Having identified in closing address that the Crown's case was a circumstantial case which relied on the interrelation of all the matters of evidence, the Crown explained that: "The analogy that's used for a circumstantial case is that it's like the strands in a cable. No one strand in a cable is capable of holding the weight that is lifted by the cable but it's when you take all of the strands and weave them together the way that all of the strands interrelated, that cable has immense strength. Even if one strand of the cable breaks, the red car again, even if you don't think the red car can bear any weight on its own in the case, that doesn't significantly affect the strength of the cable."
2. The Crown then identified each of the "strands" the Crown relied upon in support of its case. Having done that, at the conclusion of the closing address, the Crown submitted: "The Crown says the combined strength of those strands is overwhelming, the combined strength of those strands of the cable are more than capable of satisfying you beyond reasonable doubt of the accused's guilt. There is no other explanation reasonably available to you on the evidence, no other explanation except that it was the accused who killed his mother. He acted voluntarily. He did an act that caused the death of the deceased and at the time of doing that act, either he intended to kill her or he intended to cause her a really serious injury. The Crown says you'd conclude that he went there with the intention to murder her but that's more than the Crown needs to prove. Even if he went there for some other reason but then at the time he was there, because of something that happened, he then strangled her, if he intended to cause her a really serious injury, even in that spontaneous moment and at the time of that intention he caused her an injury which led to her death, that is all the Crown needs to prove. If you're satisfied of that beyond reasonable doubt, the only verdict you can return is a verdict of guilty. There is no other explanation for the facts in this case; the only possible explanation that's available to you is that it was the accused who killed his mother. The only proper verdict that you could return is a verdict of guilty."
3. As to this, the appellant alleges that the Crown "falsely states to the jury that there was no other explanation to the facts of the case, when the true events were put forward, making his claim both fraudulent but coercive and designed to prejudice the jury against the accused".

(ix) Criticism of the "whole tenor of the Crown's address"

1. The appellant contends that "the whole tenor of the Crown's address was intemperate and with multiple indefensible and unsupported and misleading claims. Designed to prejudice the jury against the appellant".
2. This contention is not itself particularised. In those circumstances, I have assumed that it is intended to capture each of the preceding matters relied upon in ground 1. My conclusions as to each of those matters are set out above. I have also considered whether the cumulative impact of the matters complained of led to an unfair trial. I am satisfied that they did not.
3. In oral submissions before this Court, the appellant complained that the Crown made "inflammatory comments" in referring to the "toolkit for murder" and the "rare" red car. As to the former, this description is a legitimate means of describing the contents of the blue Fitness First backpack, the contents of which included a knife, rope, gaffer tape, latex and material gloves. Whilst the language used is colourful, it is not intemperate or inappropriate. As to the latter, it is correct that the transcript records that the word "rare" was used in the Crown's opening address where, relevantly, the Crown is recorded as having referred to "a rare four door car with black and yellow number plates". In context, the most likely explanation for this is that it is a transcription error and that the actual word used by the Crown was "red". There was nothing to suggest that the car was rare, but it was common ground (and apparent from the CCTV footage) that the car was red. All other references are to a "red" not "rare" car.
4. I have also considered, for myself, whether there was any unfairness to the appellant having regard to the Crown's closing address as a whole. Again, I am satisfied that there was none.

Conclusion as to ground 1

1. In the light of the matters set out above, none of the individual matters relied upon led to any miscarriage of justice or unfairness in the trial whether considered individually, or cumulatively. This ground should be dismissed.

Ground 2: failure to disclose.

1. Ground 2, described in the notice of appeal as "failure to disclose" relates to the CCTV footage from Sims Recycling Solutions. The appellant makes two submissions in this regard: 1. This footage was not part of the brief of evidence and when adduced was limited to one clip rather than the entirety of the disc of footage; and 2. The Court failed to follow the Criminal Procedure Act 1986 (NSW), ss 141(1)(a), 142(1)(f) and (i), 183(2)(b), 183(3) and 188.
2. For the reasons set out in relation to ground 1(ii) above, I am satisfied that there was no unfairness or miscarriage of justice occasioned by the way in which the Sims Recycling Solutions CCTV was disclosed or dealt with at trial.
3. The appellant also relies upon ss 141(1)(a) and 142(1)(f) and (i) of the Criminal Procedure Act in support of this ground. Those sections provide for mandatory pre-trial disclosure of the prosecution's case including any exhibit that the prosecutor proposes to adduce at trial: s 142(1)(f), and any information, document or thing in possession of the prosecutor that "would reasonably be regarded as relevant to the prosecution case or the defence case": s 142(1)(f). These provisions were considered in Edwards v R (2021) 273 CLR 585; [2021] HCA 28. The Chief Justice, Keane and Gleeson JJ held that the disclosure obligation in s 142(1)(i) "plainly does not extend to all information in the possession of the prosecutor or to information that does no more than provide a potential avenue for inquiry": at [26]. Even if there is a contravention of prosecutorial obligations of disclosure, or of ss 141 and 142, the question for the Court is whether the fairness of the appellant's trial was thereby prejudiced: at [30] (Kiefel CJ, Keane and Gleeson JJ). This requires consideration of "all of the circumstances of the trial": at, [75] (Edelman and Steward JJ). Even if there were a breach of disclosure obligations or of ss 141 or 142, I am satisfied that the appellant had a fair trial.
4. As to the appellant's reliance upon ss 183(2)(b) and (3) of the Criminal Procedure Act, these provisions require that a brief of evidence is served 14 days before the hearing of the prosecution's evidence. They appear in Div 2 of Pt 2 of the Act, Pre-trial procedures. Section 188 provides that: 188 Evidence not to be admitted (1) The court must refuse to admit evidence sought to be adduced by the prosecutor in respect of an offence if, in relation to that evidence, this Division or any rules made under this Division have not been complied with by the prosecutor. (2) The court may, and on the application of or with the consent of the accused person must, dispense with the requirements of subsection (1) on such terms and conditions as appear just and reasonable.

Ground 3: the learned trial judge erred lead[ing] to an unfair trial, causing a miscarriage of justice

1. In Ground 3 the appellant raises the following ten matters that he contends caused a miscarriage of justice.

(i) failure to discharge the jury when the trial judge learnt that Ms Cunneen, acting for the Crown, in her opening address spoke about evidence that was not disclosed, as required by law, as part of the brief of evidence.

1. The appellant contends that the trial judge erred in not discharging the jury when the Crown, in opening address, "spoke about evidence that was not disclosed, as required by law, as part of the brief of evidence".
2. It is not clear what evidence is being referred to here. I have already considered, and rejected, the appellant's specific allegations of non-disclosure as regards the Sims Recycling Solutions CCTV footage. To the extent that the same matters are relied upon here (and no further matters of non-disclosure have been identified), it follows from my conclusions set out above that this ground would also be rejected.

(ii) failure to discharge the jury when Ms Cunneen was discharged from her duties with the Office of the Director of Public Prosecutions

1. The appellant contends that the trial judge erred by not discharging the jury when Ms Cunneen was discharged from her duties with the Office of the Director of Public Prosecutions "when reports surfaced that outlined her unsavoury behaviour in her efforts to help pervert the course of justice". The circumstances in which Ms Cunneen withdrew from the trial are set out above.
2. On 28 May 2015, after Ms Cunneen withdrew from the trial, Mr Maxwell for the Crown applied that the jury be discharged on account of prejudice caused by the events which lead to Ms Cunneen's withdrawal and the media attention surrounding those events. Counsel for the appellant's position on that application was explained as follows: "Your Honour, I'm instructed that the accused is keen to retain this jury"
3. Counsel for the appellant at trial made submissions against the jury being discharged. Those submissions relied upon the "relevant and strong directions" that had been given to the jury and the uncontroversial principle that juries are presumed to follow directions, and that: "your Honour, as the trial progresses, would be confident that the jury would attend to its task in accordance with their respective oath or affirmations".
4. Having regard to the position that the appellant took at trial, I am satisfied that the trial judge did not err in not discharging the jury when Ms Cunneen withdrew from the trial. Further, I am in any event satisfied that no miscarriage of justice was occasioned by reason of the jury not being discharged.

(iii) and (iv) failure to discharge the jury following the Crown's closing address and failure to give appropriate directions to the jury to cure the fraudulent and inappropriate remarks made by the Crown in closing address

1. The appellant contends both that: 1. The trial judge failed to discharge the jury following the Crown's closing address "causing the trial to miscarry"; and 2. The trial judge erred in failing to give appropriate directions to the jury "to cure the fraudulent and inappropriate remarks made" by the Crown in closing address.
2. It is convenient to deal with these two matters together. Neither is particularised in any way. In support of both matters, the appellant relies upon R v Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 at [3] and [45]. The passage at [3] relied upon sets out that one ground of appeal relied upon in that case was that: "[H]is Honour erred in that he failed to give appropriate directions to the jury to cure inappropriate and unfair comments made by the Crown prosecutor in his address to the jury".
3. The passage at [45] refers to the prosecutorial obligations not to go beyond a "full and firm presentation" of the prosecution's case and "not, by language or other conduct, seek to inflame or bias the Court against the accused". At [46] Carruthers AJ, with whom Spigelman CJ and Sperling J agreed, added that the rules were not intended "to inhibit a prosecutor presenting the Crown case in a firm and positive manner".
4. I have already rejected the appellant's various complaints about the Crown's closing address. As no further matters were relied upon in ground 3 (iii) and (iv), I am satisfied that there was no unfairness to the appellant by reason of the matters relied upon by the appellant.

(v) failure to give warnings to the jury concerning the evidence of the appellant's siblings having regard to animosities between the siblings and their motives for given such evidence

1. The appellant contends that the trial judge: "failed to give adequate warnings to the jury concerning the testimonies of the appellant's siblings, knowing the long-standing animosities existing between the siblings and made known in the trial and the motives to how the testimonies were made and presented".
2. The appellant further states that he is not questioning the admissibility of his siblings' evidence, but rather "the motives and circumstances under which their testimonies and statements" were given. The appellant relies upon Sio v The Queen (2016) 259 CLR 47; [2016] HCA 32 at [70]-[79] ("Sio"). The issue in Sio was whether a representation from an accomplice of Mr Sio contained in the accomplices recorded interview should have been admitted into evidence under s 65(2)(d) of the Evidence Act 1995 (NSW), which provides that the hearsay rule does not apply to representations that are against the interest of the maker and made in circumstances that make it likely that they are reliable. The accomplice did not give evidence at the trial. In the appellant's case, both of his siblings gave evidence at trial and were cross-examined. Thus, the question that arose in Sio does not arise in this appeal.
3. The appellant has not particularised the matters relied upon in support of this ground, however, it is apparent from the evidence that relationships between the appellant and his siblings, both of whom gave evidence for the Crown, were poor. The appellant's counsel at trial addressed the credibility and reliability of Nenad's evidence in some detail in his closing address. In this regard, counsel drew attention to the "unhappy family history and unhappy family relationships" and asked the jury to "bear that in mind" in assessing Nenad's evidence as to the evening of 13 February 2014. His submission was that Nenad was a "witness who is abundantly lacking in credibility and you could not safely draw any firm conclusion from his evidence". Later in his closing statement, the appellant's counsel at trial made detailed submissions about the "family dynamics or family relationships". He submitted that it was common ground that the appellant did not get along with either his brother or sister. It was submitted that evidence from Gabriella as to what she had been told by the deceased had to be assessed "against the background of brother and sister clearly not getting along with each other". He continued: "The accused is left in the position where he can but deny these assertions. Given the difficulties with that evidence and I've scrutinised them very careful[ly], his Honour may say something about the need to consider the potential unreliability of that evidence. He will give you important directions of law about that. I don't propose to say anything about the law other than to invite you to listen very carefully to all aspects of his Honour's summing-up to you and pay please particular attention to the sorts of difficulties and issues that come into play when you are considering, to put it in lay terms, a second-hand account of something that's asserted to be a fact".

(vi) failure to give adequate warnings as regards Nenad's evidence

1. The appellant contends that the trial judge erred in failing to give adequate warnings to the jury in relation to "inconsistent statements made by Mr N Biljuh and the conflicting accounts given by Mr Dinh". The appellant does not identify what inconsistencies he relies upon in this regard.
2. The appellant relies upon a passage from the judgment of Deane, Toohey and Gaudron JJ in Morris v R (1987) 163 CLR 454 at 469; [1987] HCA 50 going to the question of when directions may be appropriate in relation to the evidence of a witness who has made a prior inconsistent statement. The passage relied upon by the appellant makes it clear that whether or not a warning as to reliability is necessary or desirable will depend upon the circumstances of the particular case.
3. Nenad gave evidence and was cross-examined at the trial. He was cross-examined as to what money he owed to financial institutions as at 14 February 2014, and what, in his first statement, he had told police about that and about the purpose of a withdrawal of $5,000 he had made from a business concern known as 43 Trees. He was not cross-examined as to any other inconsistencies either in his evidence, or between his oral evidence and any prior statement he had made.
4. Mr Dinh gave evidence at the trial but was not cross-examined.
5. In his closing statement counsel for the appellant at trial made submissions as to the credibility of the evidence of Nenad, and in part relied in this regard upon inconsistencies between the evidence of Nenad and that of Mr Pavlovic as to financial matters. No submission was made as to inconsistencies in Nenad's evidence. No submission was made as to prior inconsistent statements. No submission was made as to there being any inconsistency between the evidence of Nenad and Mr Dinh.
6. No prior statement of Nenad was tendered in evidence. There was thus no inconsistency.
7. Having regard to the matters set out above, it is not clear that there was any relevant inconsistency either within Nenad's evidence, or between the evidence of Nenad and that of Mr Dinh. To the extent that this ground is intended to relate to the alleged inconsistency in the evidence of Nenad in relation to the location of his car, I have already rejected that contention in my analysis of ground 1(iii).

(vii) lies and consciousness of guilt

1. The appellant contends that the trial judge "inferred guilt when speaking about lies told in police interviews (when not under oath). The learned trial judge should have given warnings to the jury that lies do not equate to guilt".
2. In the passage to which the appellant refers in support of this submission, having directed the jury as to the use of lies with regard to credibility and inconsistency, the trial judge told the jury that the topic of "lies allegedly told, and an act allegedly done, by the accused because of an alleged awareness of guilt or murder" was a "closely related but separate …topic". The trial judge then directed the jury that there was "some evidence in a special category" being "words spoken, and an act done by the accused, that the Crown Prosecutor submits you could rely upon as showing an awareness of guilt of murder on the part of the accused". The trial judge then identified the Crown Prosecutor's submission was that four lies, and one act, were in this category. The lies were: 1. When the appellant was last at the deceased's home; 2. That the appellant did not send the three text messages; 3. When the appellant last used the latex gloves; and 4. That the appellant did not own any duct tape.
3. The "act done" was the act of the appellant sending the three text messages after 11am on 14 February 2014.
4. It is plain that the trial judge did not himself "infer guilt" in bringing this evidence to the jury's attention.
5. The trial judge gave the jury a detailed written direction, directing the jury that it was a matter for them whether to accept the Crown's submissions as to the evidence it relied upon as showing a consciousness of guilt by the appellant. Further, that: "[B]efore you could accept that submission with regard to any alleged lie, you would need to be satisfied of ALL of the six following things: 1. The accused did indeed make the statement the Crown Prosecutor relies upon. 2. The statement was not true. 3. The statement was deliberately untrue (as opposed to a mistake, confusion, shock, etc). 4. The statement relates to a material issue in this murder trial. 5. The statement was a lie told because the accused realised that the truth could reveal his guilt of the offence of murder, as opposed to any other crime, or for any other reason. 6. The statement has been clearly shown to be a lie by the admission of the accused or by the evidence. Before you could accept the submission of the Crown Prosecutor with regard to the alleged, act, you would need to be satisfied of ALL of the three following things: 1. The accused did indeed do the act the Crown Prosecutor relies upon. 2. The act was done to conceal something material to this trial, not something insignificant. 3. The act was done by the accused to conceal his guilt of the murder of the deceased, as opposed to any other crime, or for any other reason. People can lie, or seek to conceal things, for many reasons, not just because they are guilty of a crime. If you think that an alleged lie was told, or alleged act was done, for some reason other than awareness of guilt of the murder of the deceased, you would not accept the submission of the Crown Prosecutor. Even if you accept the submission of the Crown Prosecutor, lies told or acts done because of awareness of guilt certainly cannot prove guilt on their own. Even if you accept the submission of the Crown Prosecutor, the lie told or act done just becomes another circumstance that you would take into account in the circumstantial case."

(viii) misrepresenting how the trial evidence was put to the jury

1. The appellant contends that the trial judge "erred by misrepresenting how trial evidence was put to the jury".
2. In the passage relied upon by the appellant, the trial judge, under the heading "Disputed evidence" purported to set out a "broad overview" of the subject matter of the evidence that was disputed. The trial judge identified Nenad as one of five witnesses whose evidence was disputed
3. The appellant contends that the following description of evidence was not "how the evidence was presented to the jury": "[Nenad's] evidence is also that the keys were there at that time [i.e. when he left for work on the morning of 14 February 2014], and neither of the locks to the glass door or the screen door of the granny flat were damaged by way of the presence of broken key shafts inside them"
4. Nenad gave evidence at trial. He gave evidence that the registration documents for his jeep were on the dining room table at the deceased's home on the morning of 14 February 2014. He also gave evidence that the last time he saw the deceased's key was "maybe the morning she passed away" and that "[s]he used them to open the security door on the front of the house, and she'd always deadlocks from the inside". Viewed together with his evidence that the deceased had gone for a walk on the morning of 14 February 2014, his evidence was that the keys were at his home that morning.
5. He also gave evidence that when he left for work on 14 February 2014, neither the lock to the glass sliding door, nor that to the screen order, was already damaged. He said that "[t]hey were both in working order when I left that morning".
6. In cross-examination it was put to him that the damaged locks were damaged prior to him leaving for work on 14 February 2014 and he replied that that was "impossible". He said they were both in "working order" when he left for work that morning.
7. Having regard to this evidence, the trial judge did not misrepresent the evidence given by Nenad. There was no unfairness.

(ix) the Sims Recycling Solutions CCTV

1. The appellant contends that the trial was unfair and miscarried because the trial judge erred by allowing the CCTV footage from Sims Recycling Solutions Villawood to be adduced into evidence. I have already dealt with the substance of this complaint.

(x) Procedural fairness was denied

1. The appellant contends that procedural fairness was denied when the trial judge failed to observe ss 183(1), (2)(b), (3) and s 188 of the Criminal Procedure Act, and s 137 of the Evidence Act. I have already dealt with the substance of this ground to the extent that it relies upon the Criminal Procedure Act.
2. The only submission made by counsel for the appellant at trial relying upon s 137 of the Evidence Act related to an objection to the tender of a photograph of the deceased's body. Counsel for the appellant at trial conceded, however, that the evidence was both relevant in that it showed the position of the deceased, and probative. The prejudice relied upon was that the photograph was "unnecessarily unpleasant". The Crown's submission was that the photograph was relevant as it went to the likelihood that the deceased's body would have been dragged from somewhere else. Ultimately the trial judge ruled that the photograph should be admitted into evidence: R v Biljuh (No 3) [2015] NSWSC 710.That manifestly did not lead to any denial of procedural fairness or miscarriage of justice.

Conclusion as to ground 3

1. In the light of the analysis set out above ground 3 should be dismissed. I am satisfied that none of the matters relied upon, whether considered individually or cumulatively, led to any unfairness to the appellant.

Ground 4: verdict of the jury unsafe, unreasonable.

The appellant's submissions

1. The appellant contends that the verdict of the jury is unsafe/unreasonable. He contends that the following matters, each on their own, give rise to reasonable doubt: 1. Unidentified DNA found on the deceased. 2. Inconsistent statements made by Nenad. 3. The unexplained 30 minutes that Nenad was left unattended at the crime scene then the manner to how access to the granny flat was gained. 4. The letter from the appellant to the deceased that was brought to the attention of PCC Eames, along with a pair of reading glasses, three days after the crime scene was forensically searched by police originally; dates on the photos confirm that the said letter was found three days later. 5. Mr Townsend's evidence. 6. Alibi for the appellant given by Mr Pavlovic. 7. The number of fraudulent claims made by the prosecutor in his closing address to the jury. 8. The learned judge in his summing up stated the Crown had no direct evidence. 9. The short time the jury gave to their deliberations. 10. Also, frequency of adjournments, length of adjournments, and lack of continuity in the trial.
2. The appellant did not make any written or oral submissions to elaborate upon this list of matters, or to particularise the matters within these broad categories that he relied upon in support of this ground of appeal.

The applicable principles of law

1. The principles that apply to a complaint that a verdict is unreasonable are well established. As set out in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ in M v The Queen (1994) 181 CLR 487 at 492-493; [1994] HCA 63 ("M"): "Where a court of criminal appeal sets aside a verdict on the ground that it is unreasonable or cannot be supported having regard to the evidence, it frequently does so expressing its conclusion in terms of a verdict which is unsafe or unsatisfactory. Other terms may be used such as "unjust or unsafe", or "dangerous or unsafe". In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand" … 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. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations". (Footnotes omitted).
2. At 494, their Honours stated: "In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence" (Footnotes omitted).

My assessment of the evidence

1. Notwithstanding that the appellant's contentions are focussed upon individual "points" each of which is said to give rise to reasonable doubt, I have had regard to the whole of the evidence at the trial in considering the appellant's contention that the jury's verdict was unreasonable.
2. I will first address each of the matters relied upon by the appellant.

(i) Unidentified DNA found on the deceased

1. As set out above, the Crown relied at trial upon evidence from Vivien Beilby.
2. The only DNA which was not consistent with, or did not exclude, it being from either the appellant or the deceased, or was too low to determine a profile, was from the left and right sleeves of the deceased's dress. Both samples also included a mixture of DNA from two individuals and the appellant and the deceased could not be excluded as contributors to that mixture. I have presumed that this is the "unidentified DNA found on the deceased" that the appellant relies upon in this regard.
3. Whilst the appellant's counsel made submissions that there was evidence suggesting that somebody other than the appellant killed the deceased, he did not rely upon "unidentified" DNA as falling into that category. Indeed, no submissions were made in his closing address as to "unidentified" DNA.
4. The trial judge, when summing up, reminded the jury of the submissions as to the DNA evidence in the appellant's counsel's closing statement and reminded the jury in particular of the defence's submission that the jury should: "Think about the incomplete knowledge that attaches to this area of science and the tiny quantities involved. Consider things carefully, he submitted, and not superficially".
5. It is apparent that the "unidentified" DNA on the deceased's dress was a very minor element of the DNA evidence as a whole. The DNA evidence as a whole was capable of being regarded by the jury as a highly probative strand of evidence in support of the appellant having been the person who killed the deceased.

(ii) Inconsistent statements made by Nenad

1. I have already considered the appellant's contentions in support of other grounds that there were inconsistencies in the evidence of Nenad. There were not, in my judgment, significant or material inconsistencies in that evidence and no such inconsistencies were relied upon by counsel for the appellant in his closing statement.
2. The only inconsistency that Nenad was cross-examined on went to the precise phraseology of the appellant's statement to Nenad that he would cut the deceased's face off. The inconsistency was as to whether the appellant had said that he said words to the effect that "if he sees her, or that woman near his kids again" he would cut her face off, or had said "I told you to keep her away from me. If I see her again I'll cut her face off". That inconsistency is of no significance.
3. I have also looked closely at the evidence to identify for myself whether there are any material inconsistencies as between Nenad's evidence and that of other witnesses. Mr Townsend gave evidence that on the afternoon of 14 February 2014, after the deceased's body was found, Nenad showed the police his phone and told them that he had "been receiving these text messages" and that he had been receiving "these threats and stuff" and said that there may be some documents in the back room that people were after. Nenad gave evidence that he showed the police the text messages and phone. In cross-examination he denied that he said to the police that there were some important documents inside the granny flat. In response to a further question, he said that he did not recall telling police that "they had probably come for them, or words to that effect".
4. I do not regard this as a material inconsistency in Nenad's evidence. The question put to Nenad in cross-examination did not precisely reflect Mr Townsend's evidence and as regards the further question referred to above, was not supported by Mr Townsend's evidence at trial. In any event, I do not regard this as a matter of any real moment in the context of the trial as a whole.

(iii) the unexplained 30 minutes that Nenad was left unattended at the crime scene and the manner in which access was gained to the granny flat

1. As is clear from the summary of evidence set out above, there was a period when Nenad was at the deceased's home but unable to get into the granny flat. The evidence of Mr Dinh was that it would take about ten or fifteen minutes for him to get to his house from the deceased's home. That would equate to a 30-minute round trip. However, it was not until Mr Dinh returned that Nenad and Mr Dinh were able to get into the granny flat. In these circumstances, the fact that Nenad was unattended at the location of his house does not have any material significance.
2. As to the manner in which access was gained to the granny flat, both Nenad and Mr Dinh (as set out above) said that they could not unlock the door to the granny flat, that Nenad did not have a key, that Mr Dinh went home to get a grinder and that when he returned they did not use the grinder as they were able to open the door another way, namely by "jiggling it". Mr Dinh explained that this involved putting his own key in halfway and them making "it" turn.

(iv) The letter from the appellant to the deceased in 2013

1. I have addressed this already. It is not a matter which raises any doubt as to the appellant's guilt.

(v) Mr Townsend's evidence

1. I have addressed this evidence already. There were available explanations for Mr Townsend's evidence that the voice he heard in the morning of 14 February 2014 was that of a woman and that there was no accent (other than an Australian accent). As the Crown submitted, the voice may have been that of the appellant speaking in anger. It may have been that of the deceased but Mr Townsend did not identify her accent. It is evidence that, in my view, a jury properly directing itself could be reconciled with the appellant's guilt.

(vi) Alibi from Mr Pavlovic

1. I have summarised Mr Pavlovic's evidence above. Mr Pavlovic did give evidence that he saw a mound of blankets on the couch in the living room of his home in the morning of 14 February 2014 and assumed that this was the appellant. He said that he saw this in his peripheral vision. That is evidence which the jury had to weigh in the totality of the evidence. The jury was entitled to find that this evidence did not establish that the appellant was at Mr Pavlovic's home at around 7:00am on 14 February 2014.

(vii) "fraudulent" claims made in the Crown's closing address

1. I have addressed the appellant's contentions as regards matters in the Crown's closing address. There is nothing in the Crown's closing address that suggests that the jury's verdict was unsafe or unreasonable.

(viii) the trial judge said the Crown had no direct evidence

1. There was no dispute but that the Crown's case was circumstantial. That is not uncommon. It does not support this ground of appeal.

(ix) the short time that the jury took for deliberations

1. The simple fact that the jury reached its verdict in a short space of time does not suggest that the verdict was unsafe or unreasonable.

(x) adjournments during the trial and a lack of continuity

1. No complaint was made as to either the length or frequency of adjournments, or to any lack of continuity. Some delays and adjournments are inevitable in any lengthy criminal trial such as this. There was nothing which would give rise to any unreasonableness or lack of safety in the verdict.

Overall

1. I have set out a summary of evidence in the trial above. As this was a circumstantial case, it is important not to consider the evidence in a piecemeal fashion. The evidence as a whole was such that I do not harbour any doubt as to the guilt of the appellant. The previous threats, the DNA evidence, the various lies of the appellant which in my judgment show a consciousness of guilt, the evidence as to the broken keys being found in the appellant's backpack, the contents of the backpack more generally, the appellant's alarm going off at 4:30am that morning, viewed as a whole, disclose a compelling case that the appellant murdered the deceased on 14 February 2014, as the Crown contended. The matters relied upon by the appellant do not stand against that conclusion.
2. Moreover, this is a case in which the jury enjoyed a real advantage over a court of appeal. The appellant gave evidence and was cross-examined. So too did numerous other witnesses. That is a reason for considerable caution if I had considered there was any doubt, on the evidence, as to the appellant's guilt.
3. The jury were well entitled to find the appellant guilty. This ground should be dismissed.

Ground 5: trial unfair due to forensic disadvantage.

1. The appellant contends that the trial was unfair due to him being at a forensic disadvantage because he was unable properly to instruct counsel.
2. In his affidavit, sworn 26 July 2022 and read in support of this ground, he sets out the matters he relies upon in support of this ground. These are, in summary: 1. that he was under stress and "ill equipped" to "properly understand and direct" his "legal representatives in a way that was adequate in any way"; 2. that he would have his "morning ration of milk between 5:30 and 6:30am" leaving only "ten or so minutes to get ready" being "an inadequate time to have a breakfast meal"; 3. that each day he would be transported from Long Bay CC, and then transported to the Metropolitan Remand & Reception Centre ("MRRC") at Silverwater, "where he would then be held before then being put on a transporter from MRRC to Darlinghurst"; 4. that on the day on which his counsel's closing address was meant to start, there was an incident and he was held at MRRC until after lunch before being eventually transported to the Court. On that day, an adjournment was asked for so the closing address could be delivered without an interruption however this was denied; 5. that for the last days of the trial he was transported directly to Court from Long Bay CC, and each evening he would not return to Long Bay before 8:45pm to 9:00pm, would not return to his cell until around 9:30pm to 10:30pm, and his dinner in his cell would then be cold. Because he could not heat his meal, most of his meals went untouched; 6. the stress of the trial prevented the appellant from receiving proper sleep, this led him to be mentally and physically exhausted; 7. at the Court, the appellant was offered frozen and thawed sandwiches, most days this consisted of two cheese and cranberry sandwiches and two cups of instant coffee. It was not until after the trial that the appellant learnt he could have requested to have the same meals as the jury; 8. the laws of criminal procedure and evidence were not explained to him; and 9. it was not until late 2019 did the appellant learn that through the MRRC library that inmates could request information on cases. Since becoming aware of this he has now started to educate himself to understand the law to aid himself in this appeal.
3. It is apparent from the transcript that on 18 June 2015 the appellant's arrival at Court was delayed before defence counsel's closing address commenced. However, it is clear that no substantive matters were discussed in the absence of the appellant. The trial judge made it clear that only logistical matters were to be discussed in the appellant's absence. The trial judge noted that at 1:10pm, the appellant was in the dock. Defence counsel confirmed that he informed the appellant that there had been discussions in his absence, and the trial judge noted that they were entirely logistical, and a transcript would be obtained. Contrary to the appellant's contention, defence counsel's closing address did not commence in his absence.

Ground 6: tendency of prosecution - Ms Cunneen - led to an unfair trial.

1. The appellant's final ground of appeal is that the circumstances that led to Ms Cunneen withdrawing from the trial on 28 May 2015, the third day of the trial, led to an unfair trial. I have already addressed this complaint in ground 3. As set out in my analysis of that ground, when the Crown asked that the jury be discharged by reason of the circumstances in which Ms Cunneen withdrew from the trial, counsel for the appellant at trial made submissions against the jury being discharged.
2. Further, the appellant's complaints about Ms Cunneen's opening address as the Crown have been separately addressed, and rejected, above. The appellant has not identified any impropriety on the part of Ms Cunneen, or any unfairness in his trial arising from the circumstances of her withdrawal. The mere fact that allegations were made as to Ms Cunneen's conduct in an entirely unrelated matter does not take matters further.
3. I am satisfied there was no unfairness. This ground should be dismissed.

Conclusion

1. For the reasons set out above, this appeal should be dismissed.
2. I would make the following orders: 1. An extension of time for filing the notice of appeal is granted. 2. To the extent required, leave to appeal is granted. 3. The appeal is dismissed.
3. FAGAN J: I agree with the orders proposed by Stern JA and with her Honour's reasons generally.
4. With respect to ground 1, I agree that the appellant's particulars of alleged unfairness in the conduct of the trial and of alleged miscarriage of justice are not substantiated. Points (i)-(vii) under this ground, as enumerated by Stern JA, are refuted at a factual level by the record of the trial, particularly the Crown's opening and closing addresses and the evidence to which prosecutor referred, and by evidence of communications that took place between the Crown and defence legal representatives before and during the trial. Point (viii) under this ground is a complaint about passages of the prosecutor's closing address that, in my view, amount to a conventional submission on the strength of a circumstantial Crown case. Point (ix) concerning the "whole tenor" of the Crown's final address seeks to draw upon the combined effect of the foregoing particulars, which have no weight either individually or collectively.
5. I have nothing to add to Stern JA's reasons for rejecting ground 2, ground 3 in all of its 10 sub-points, ground 5 and ground 6.
6. For the purpose of reaching a conclusion on ground 4, wherein the applicant asserts that the verdict is unreasonable, or cannot be supported, having regard to the evidence, I have reviewed the entire trial record. Points (vii)-(ix) under this ground, as listed in Stern JA's judgment, have no bearing upon the question of whether the verdict is unreasonable and are disposed of on the basis stated by her Honour. In examining the evidence for the purpose of ground 4 I have paid particular attention to the first six of the appellant's sub-points. That review has given rise to no reasonable doubt in my mind concerning the appellant's guilt. This was a compelling circumstantial case. I do not see that there was any reasonable possibility consistent with the appellant's innocence that could accommodate the many highly probative circumstances that the evidence tended to establish. From those circumstances it was open to the jury to infer beyond reasonable doubt that the accused was the person who had caused his mother's death by asphyxiation and/or manual strangulation, including by blunt force trauma to the neck. It cannot be said that there is a reasonable doubt, on this evidence, that the jury must have felt.

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