Bloodsworth v R

The Crown case

1. The Crown alleged that as part of a joint criminal enterprise Ms Bloodsworth and Mr Errington murdered Mr Cerin between 28 and 30 August 2015 in his Housing Commission unit at Hebersham. Mr Errington is Mr Cerin's half-brother. At around the time of the offence, Ms Bloodsworth and Mr Errington were in a relationship and were living at Mr Cerin's unit. Mr Cerin died in the unit as the result of being gagged and restrained in a hog-tied position in addition to sustaining head injuries occasioned to him when struck by a heavy bowl. Mr Cerin also suffered injuries consistent with having been punched and stabbed in the arm. He survived for a period of about two hours after the head injuries were inflicted.
2. Mr Errington took part in an ERISP and admitted his involvement in the acts leading to Mr Cerin's death. His version of what occurred also inculpated Ms Bloodsworth. She did not take part in an ERISP and otherwise made no admissions. There was no DNA evidence that linked Ms Bloodsworth to the commission of the alleged crime. There were also no listening device material or intercepted telephone conversations that inculpated Ms Bloodsworth. Neither she nor Mr Errington gave evidence at their trial. The jury was properly directed that they could not take into account against Ms Bloodsworth anything said by Mr Errington in his recorded interview.
3. Ms Bloodsworth's response at trial to the Crown case was that the evidence did not establish that she was party to a joint criminal enterprise with Mr Errington to assault Mr Cerin by hitting, hog-tying and gagging him or that she was even present at the relevant time.
4. The jury verdicts make it clear that they were not satisfied that either offender had an intention to kill or cause grievous bodily harm to Mr Cerin or that they foresaw his death as a probable consequence of their acts. However, it is apparent that the jury was satisfied beyond reasonable doubt that both Ms Bloodsworth and Mr Errington were guilty of manslaughter by unlawful and dangerous act committed as part of a joint criminal enterprise.
5. Ms Bloodsworth offered prior to trial to plead guilty to a charge of accessory after the fact and conceal serious indictable offence. That offer was not accepted by the Crown.
6. It is also apparent from the evidence that Ms Bloodsworth was present in the apartment at some point during the evening when Mr Cerin was being assaulted by Mr Errington. The evidence does not establish when in relation to that assault Ms Bloodsworth was there. It is unsurprising in those circumstances that her Honour said this at the start of day five of the trial: "HER HONOUR: Mr Crown, just before I ask the jury to be brought in, I just wanted to let you know, and also the defence counsel know, that there are issues that are not presently clear to me. And obviously in due course I'll have to give the jury some directions. But at the moment, I'm not sure that I understand the way the Crown puts its case against Ms Bloodsworth."
7. A little later on the same day, the following discussion occurred: "HER HONOUR: In terms of the Crown case against Ms Bloodsworth, how do you propose to put that to the jury? CROWN PROSECUTOR: Joint criminal enterprise. And in relation to that, an unspoken agreement can arise obviously between them during the course of the incident and indeed simply by being present. But we say there is a joint criminal enterprise between them and that can be inferred from the circumstances. HER HONOUR: The circumstances of them both being present. CROWN PROSECUTOR: Both being present as indicated by her reply, sorry, her statement to Petrovski where she indicated 'I was watching TV' so we know she's in the house. Any suggestion she's not in the house would be rejected, we would suggest. And we say she was present and assisting. HER HONOUR: And in terms of her role, you are then relying on her admissions to third parties… CROWN PROSECUTOR: That's right. HER HONOUR: …in the course of the next … CROWN PROSECUTOR: And lies; she's telling lies, we say, because of a consciousness of guilt. She had no reason to tell lies if she was innocent. HER HONOUR: In terms of the actual lies or conduct which the Crown says will amount, or could be taken into account by the jury as a consciousness of guilt, can you identify each of those matters for me now? CROWN PROSECUTOR: What I would ask is certainly the one in relation to Petrovski, but there was one I picked up over lunch. I've tried to find it but I would just like, if possible, to have a little bit more time [sic!]. … We say that the deliberate lies told by the accused as she knew the truth of the matter would implicate her in the offence."
8. Counsel for Ms Bloodsworth responded to this at her Honour's invitation as the following extract reveals: "HER HONOUR: Thank you. In terms of the defence case for the accused Bloodsworth, what's that case? PRICE: There was no joint criminal enterprise, no agreement, no actions in accordance with it leading up to and at the time of expiry of the deceased. Her actions were purely after discovery. We say there is equal inference in relation to that and all her criminality can be sheeted home to her panic and helping her and her boyfriend get away. There is no evidence of any direct role of hers admissible against her, any act of violence, any tying up or any assault. And there is no direct evidence against her of any omission on her part that would have resulted in the death. We say there is simply no intent by her to commit grievous bodily harm by way of her actions or by joint criminal enterprise."
9. Clearly enough, the Crown's suggestion that Ms Bloodsworth was both "present and assisting" was central to the Crown's case against her and was an issue of significant controversy in the trial.
10. After the jury verdicts were returned, the Crown in due course proffered written submissions on sentence. Although these submissions cannot have informed any matter that the jury were required to consider, they are potentially instructive for the purposes of understanding Ms Bloodsworth's central contention in this Court. Specifically with respect to the facts referable to the Crown's case against Ms Bloodsworth, those submissions were as follows: "BLOODSWORTH 16. BLOODSWORTH made no admissions and declined to conduct an ERISP with police. 17. She later told a friend, Alexander PETROVSKI that she was watching TV at the unit of the deceased, and whatever happened to the deceased was behind closed doors and she had nothing to do with it. She said that the deceased had tried to rape her and when ERRINGTON came home and saw this, he struck the deceased and tied him up. 18. She was later heard saying at the BARBARA residence by Jodie BARBARA 'Stick to the story, stick to the story, he tried to rape me'. 19. Given that ERRINGTON said to the police in his ERISP that the attempted rape was made up and did not happen, both accused had concocted a story to tell others that the deceased was trying to rape BLOODSWORTH, which was the motivation for ERRINGTON to strike the deceased with the dog bowl and then tie him up. 20. This lie was raised by the Crown together with the lie about BLOODSWORTH watching TV while the attack on the deceased was behind closed doors as evidence of consciousness of guilt. The lie about watching TV while the attack took place behind closed doors was made obvious as the dog bowl, which was used to strike the deceased around the head, with his DNA all over it, with ERRINGTON's, had dog food pellets still in it and they (dog food pellets) were all around the lounge room, and the bowl was found in the lounge room. 21. In addition, a pool of the deceased [sic] blood was found just near the sofa in the lounge room where ERRINGTON said the deceased was struck and hogtied, and that could not get there if the attack occurred behind closed doors. 22. It seems the jury accepted this argument as there was little other evidence against BLOODSWORTH, except that they both showed a consciousness of guilt by trying to catch a train to Queensland from Central Railway Station, where they were both arrested. They had been attempting to get ID from the BARBARAS so they could fly to Queensland." [Emphasis added].
11. Counsel for the Crown in this Court emphasised this same theme in his written submissions. It is instructive to record some of those submissions here: "(xxiv) [Ms Bloodsworth] was arrested shortly thereafter at Central Station in the company of the co-offender and in the process of attempting to buy tickets to Queensland. (xxv) The Crown relied upon this evidence of flight along with two asserted lies as consciousness of guilt on the part of [Ms Bloodsworth]. It was not in dispute at the trial that the asserted lies and evidence of flight were capable of being relied upon by the Crown as consciousness of guilt. The events leading up to their arrest indicate that both had freedom of movement from each other and no one was keeping the other person with them so they [sic] wouldn't say things and furthermore that they had a common interest in meeting up and fleeing to Queensland. (xxvi) The first lie related to the 'story' [Ms Bloodsworth] had concocted with the co-offender that the deceased had tried to rape her. She repeated this to Dennis Rigley and Terrence Fensom and had also told the co-offender in the presence of Jodie Barbara to 'just stick to the story, just stick to the story, remember he was trying to rape me. I want to see my child in a month'. The second lie related to the account given to her friend Petrovski when he visited her in gaol. Petrovski gave evidence that [Ms Bloodsworth] told her [sic, him] that she was watching TV in the lounge room when the co-offending [sic] was attacking the deceased. However, [Ms Bloodsworth] also told him that she was unaware of what was happening in the bedroom and that she helped the co-offender by washing his clothes because of threats he had allegedly made to harm her and her child. The undisputed forensic evidence clearly indicated that the deceased was initially attacked in the lounge room and then dragged to the bedroom. The asserted threats fell to be evaluated against the background evidence led at the trial and the absence of any independent evidence suggesting that the co-offender had ever attacked or laid a hand on [Ms Bloodsworth] in anger. 29. The jury in the present case were entitled to have regard to the entirety of the evidence admissible against her in determining whether she was party to a joint criminal enterprise, and, as a minimum, whether she participated by her presence."

Ms Bloodsworth's submissions

1. Ms Bloodsworth conceded that she was present at some point at the unit on the evening when Mr Errington assaulted Mr Cerin. She submitted that it was otherwise not clear whether this was before, during or after the assault took place. Mere presence at the unit is not sufficient by itself to make Ms Bloodsworth guilty of any crime committed by Mr Errington while she is there. The evidence did not place Ms Bloodsworth in the room where Mr Cerin was hogtied, wherever or whenever that occurred. Ms Bloodsworth also submitted that even if it was open to the jury to find that Mr Cerin was struck with the dog bowl in the living room, there was no admissible evidence to prove that she was present at that time. It was also important to emphasise that even if the assault occurred in Ms Bloodsworth's presence, there was no evidence proving to the requisite standard that she acted, or did anything, to assist or harm Mr Cerin or that she otherwise encouraged Mr Errington to do so. In the circumstances, there was no evidence to establish any agreement between her and Mr Errington or any evidence from which the necessary agreement could be legitimately inferred.
2. Ms Bloodsworth submitted further that, in circumstances where Mr Errington acknowledged that he had committed acts that led to the death of Mr Cerin, and where no plausible motive could be attributed to her, it was not open to the jury to have inferred beyond reasonable doubt that she participated or helped Mr Errington in some way to kill Mr Cerin. Ms Bloodsworth submitted that at its highest, the only rational inference that could be drawn beyond reasonable doubt was that she came at some stage to know or to learn what Mr Errington had done.
3. Ms Bloodsworth's later statements and actions, said to amount to a consciousness of guilt, such as relating the false story of Mr Cerin's attempted rape, and her efforts to flee interstate, were all entirely consistent with the actions of someone who believed that she had somehow become involved in or concerned with the commission of a crime by Mr Errington. They may alternatively have been committed as a function of Ms Bloodsworth's then relationship with Mr Errington.
4. In summary, Ms Bloodsworth submitted that the finding of guilt is explicable upon the basis of no more than association or speculation or both.

Legal principles

1. The general principles to be applied in considering a claim that a jury verdict is unreasonable are well settled. They were recently re-stated by Simpson AJA in Stanford v R [2018] NSWCCA 249 as follows: "[48] Before embarking on a consideration of the detail of the submissions, it is necessary to outline the principles of law applicable when a verdict is said to be unreasonable or unavailable on the evidence. [49] The test to be applied is well established, well rehearsed and well known. The starting point is the decision of the High Court in M v The Queen (1994) 181 CLR 487. It is worth repeating yet again what the High Court there said: '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. 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.' (internal citations omitted)' [50] Their Honours, however, went on with some qualification of that principle. They said: '494. 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.' (internal citation omitted) [51] These principles have been affirmed on many occasions since: for example, Jones v The Queen (1997) 191 CLR 439; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. [52] It may therefore be seen that two competing considerations arise: regard that must be paid to the constitutional role of the jury in the determination of the guilt or otherwise of an accused person and the duty of an appellate court to make its own independent assessment of the evidence both as to its sufficiency and quality: Morris v The Queen (1987) 163 CLR 454 at 473, cited at [14] of SKA; MacKenzie v The Queen (1996) 190 CLR 348 at 365."
2. These principles are not controversial.

Consideration

1. When regard is had to the evidence that was admissible in the trial against Ms Bloodsworth, it is significant that it does not include any of the following: 1. Evidence of physical assistance or active participation in the assault upon Mr Cerin. 2. Evidence of an admission of any kind. 3. Evidence of motive, accepting that proof of motive is not essential, and that absence of motive is not fatal, to the Crown case. 4. DNA evidence connecting her to the death of Mr Cerin, as opposed to DNA taken from various neutral locations within the unit. 5. Evidence of any inculpatory post mortem voice recordings recovered from listening device or intercepted telephone communications, text messages or other surveillance material. 6. Evidence unambiguously demonstrating a consciousness of guilt of the crime alleged, as opposed to some other crime, such as accessory after the fact or conceal serious indictable offence.
2. The Crown case against Ms Bloodsworth that went to the jury was entirely circumstantial. It was based upon the limited evidence that she was merely present in the unit when Mr Cerin was assaulted and that she acted or spoke thereafter in a way that allegedly suggested or evinced a consciousness of guilt for an offence. In order for the jury legitimately to have concluded beyond reasonable doubt that Ms Bloodsworth was guilty of manslaughter, there would have had to be evidence from which they could rationally infer her participation in a joint criminal enterprise with Mr Errington to assault Mr Cerin. There was no evidence of an express or implied anterior agreement between them to do anything. At its highest, the evidence placed Ms Bloodsworth in the unit at some unspecified time in relation to the assault upon Mr Cerin.
3. Moreover, being an entirely circumstantial case against her, Ms Bloodsworth could not be jointly liable for the consequence of any criminal acts committed or performed by Mr Errington unless the Crown were able to exclude any reasonable hypothesis consistent with innocence with respect both to her presence at the scene when his criminal acts were committed or performed and for her words or conduct said to demonstrate a consciousness of guilt concerning the crime that he thereby committed. Mere presence at the unit where she was at that time residing was entirely consistent with innocence; it would not by itself in the circumstances of this case be sufficient to support an inference that Ms Bloodsworth had agreed to participate in Mr Errington's crime. Further, her lies and flight were equally consistent with a concern that she might be inculpated as an accessory after the fact as with her participation in the crime alleged. They were also consistent with an ongoing sense of attachment and loyalty or even sense of obligation to Mr Errington.
4. The Crown drew attention to the uncontroversial proposition that the jury were in the advantageous position of seeing and hearing all of the evidence from witnesses in the trial. This has recently been emphasised in AZ v R [2018] NSWCCA 294 as follows: "[147] Initially, it is worth making a few general observations about the nature of a criminal trial and, in particular, a trial conducted before a jury. Such trials have a very particular environment, impossible to replicate in transcript, or by any later viewing of recordings of evidence. [148] Again, as a general statement, the trial environment is informed by every aspect of the trial: the opening proceedings and what the jury is told by the trial judge then and during the trial about its task; the observations of the interchange between counsel and witness; the observations of witnesses and the demeanour of each, and the differing observations that may be made at different stages of the evidence of the same witness; and the presence before the jury of the accused person, and the opportunity the jury has to observe him or her when particular evidence is given, and throughout the trial. All of those aspects of a jury trial have a bearing on the verdicts ultimately returned by the tribunal of fact. [149] The environment of the trial provides the context to the jury's observations of evidence, and decisions made by jurors as to what evidence should be accepted and what rejected; and to their receptiveness or otherwise to arguments placed before them. The jury's advantage in being present at the whole of the trial is of considerable importance in determining a ground of appeal that contends that the verdict or verdicts returned by a jury were unreasonable and not supported by evidence. [150] The High Court gave particular emphasis to the fundamental role of the jury in determining questions of fact in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, at [65] - [66] where it said, 65. 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. 66. 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 [appeal] 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]. [151] In making that statement, the High Court referred to and was informed by a history of twentieth century Australian jurisprudence that has consistently given primacy to the responsibility of the jury to determine matters of fact, and rejected the notion that an appellate court should or could substitute its view of such matters for that of the jury."
5. I have had particular regard to the whole of the evidence that was put before the jury in this trial. I accept that the jury's advantage of being present during the entirety of the proceedings should not lightly be discounted or depreciated. However, no such advantage can operate to overcome the absence of evidence capable of establishing the guilt of an accused person beyond reasonable doubt. When regard is had to the evidence in the trial, it is not in my view possible to isolate or to discern the existence of a principled basis upon which the jury could have been satisfied beyond reasonable doubt of Ms Bloodsworth's guilt. There is in my view no evidence upon which a jury could rationally conclude beyond reasonable doubt that Ms Bloodsworth was or became a party to an agreement formed with Mr Errington to do anything at all. Her mere presence at the unit was insufficient for that purpose. Her post offence conduct could also not be excluded as explicable by an equally probable hypothesis consistent with her innocence.
6. One matter upon which the Crown placed emphasis at trial and in this Court drew upon evidence given concerning a recording found on Ms Bloodsworth's phone of what appear to have been events at the unit at or close to the time when Mr Cerin was being assaulted. That evidence was given by Mr Rigley, and is relevantly as follows: "Q. Did you drive back to your house? A. Yep. Q. And she was saying much on the way back? A. Not a word, mate, not a word. She looked quite frightened. Q. Now, when she got back and walked into your house, did she say something? A. Something to the effect of, 'I've really fucked up. I think that guy is dead. He killed him.' Q. Now what did you say? A. I said, 'You've got to go to the police.' I said, 'You know, if you didn't do anything, you've got to go to the police. It's the only way you're not going to go to gaol', so. Q. What did she say? A. She said, 'I'm scared. I can't, I'm scared.' Q. Do you remember what you said to her? A. 'It's the only way' - 'If you didn't murder him, it's the only way you're not going to go to gaol, so go to the police.' Q. And what did she say? A. 'I can't. I'm scared.' Q. Did you ask her what happened? A. Yeah, I did, yes. Q. What did she say? A. She told me that the guy had tried to rape her and the brother had walked in and I said to her, 'See, I told you you don't get nothing for nothing.' Q. Do you remember she showed you her phone and there was a video on her phone; do you remember that? A. Yes, I do. Q. Did you want to see that or not? A. No, I didn't. Q. But had she already started the video. Did you see anything on the video, or not? A. It was a black screen and there was only audio on it. Q. Do you remember what you heard on this phone? A. I heard a voice in a very menacing tone, with no room for any sideways movement, telling her to get something to shove in the guy's mouth. Q. What were the exact words? A. 'Get something to put in his fucking mouth', or something like that. 'I told you to get' - 'I told you to get something to put in his fucking mouth', something to that effect, but it wasn't asking in any way. It was a matter - it was said as a matter of fact statement, like being told to do it. Q. Did Rhiannon turn the phone off, the video off? A. Yeah. Q. Did she say something? Did she say, 'What am I going to do?' A. And I told her, 'Go to the cops'."
7. The Crown's reliance upon this material in order somehow to support the case against Ms Bloodsworth would appear to be based upon the proposition that she recorded what was on her phone and that she could thereby be shown to be assisting Mr Errington in the commission of the assault. A number of things can be said about this. First, the evidence does not disclose that Ms Bloodsworth was in any event responsible for the recording, even though it was said to be recorded on her phone. The phone was not seized or the subject of any subpoena or otherwise in evidence. Secondly, and perhaps more significantly, the matters that were recorded, as recalled and described by Mr Rigley, were arguably wholly inimical to the existence of any agreement between Ms Bloodsworth and Mr Errington and, on the contrary, suggested that Mr Errington was coercing or attempting to overbear her to a considerable extent. Mr Rigley's evidence supports the inference that Ms Bloodsworth was not a party to an agreement to provide Mr Errington with assistance but that she was in fact being menaced by him. (That theme is reprised in Ms Bloodsworth's conversation with Mr Petrovski at the gaol when she told him, referring to Mr Errington, "He said I was next, and I was forced to clean his clothes while he showered".) Thirdly, the version given by Mr Rigley is evidence that Mr Errington was telling Ms Bloodsworth what he wanted her to do, not that she did it.
8. It is also significant in my view to note that none of the evidence in the trial was attended by any particular controversy or doubt in the sense that different witnesses gave competing or inconsistent versions of the same critical event. Relevantly in this respect is the fact that neither Ms Bloodsworth nor Mr Errington gave or called any evidence. To that extent, the force of any advantage that the jury might have enjoyed in assessing the credibility of different witnesses or in coming to a view about what facts to find, an advantage that cannot be enjoyed by an appellate court, is substantially diluted in this case. Simply stated, I have a reasonable doubt that the evidence put before the jury was capable of proving Ms Bloodsworth's guilt and as such it was a doubt that the jury ought also to have experienced.
9. It follows that I consider that the verdict of the jury is unreasonable having regard to the nature and quality of the evidence.

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