Bloodsworth v R

Consideration

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.
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.
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.
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."
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.
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'."
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.
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.
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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Judgment (6 paragraphs)

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Cases Cited (13)