Campbell v R - [2014] NSWCCA 175 - NSWCCA 2014 case summary — Zoe

NSWNSWCCA

Campbell v R

[2014] NSWCCA 175

Court of Criminal Appeal (NSW)|2014-05-21|Before: Bathurst CJ, Simpson J, Hidden J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2014-05-21

Before

Bathurst CJ, Simpson J, Hidden J

Source

Original judgment source is linked above.

Judgment (37 paragraphs)

[1]

ALJR 427 Lane v R [2013] NSWCCA 317 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 Peter Mickleberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 Pfennig v The Queen [1995] HCA 7; (1995) 182 CLR 461 R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 R v Doyle [2014] NSWCCA 4 R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700 R v Pureau (1990) 19 NSWLR 372 Reg v Solomon [1980] 1 NSWLR 321 Regina v Meher [2004] NSWCCA 355 Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Sheen v The Queen [2011] NSWCCA 259; (2011) 215 A Crim R 208 Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 The Queen v Crabbe [1985] HCA 22; (1985) 156 CLR 464 Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402 Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 Category: Principal judgment Parties: Desmond Campbell (Appellant) Crown (Respondent) Representation: Counsel: A Francis / L C Hutchinson (Appellant) S Dowling SC (Crown) Solicitors: Michael Bowe (Appellant) Director of Public Prosecutions (Crown) File Number(s): 2009/207160 Decision under appeal Date of Decision: 2010-05-18 00:00:00 Before: Latham J File Number(s): 2009/207160

[2]

Judgment BATHURST CJ: Heading Par The evidence at the trial [6] The appellant's relationship with the deceased [6] Financial transactions between the appellant and the deceased [32] The appellant's relationship with the deceased's family [41] The appellant's relationship with other woman [45] (a) Ms Ingham [46] (b) Ms Velicanski [58] (c) Ms Janet Aldred [66] (d) Ms Lynda Rodgers [68] The day of the incident [72] The rescue operation [89] The post mortem [96] After the incident [99] Expert evidence led at the trial [120] (a) Associate Professor Rodney Cross [120] (b) David Beck [133] The Crown case and the directions to the jury [142] Ground 1 [149] The submissions of the parties [149] (a) The appellant [149] (b) The Crown [162] Consideration [171] Ground 3 [197] The submissions of the parties [208] (a) The appellant [208] (b) The Crown [215] Consideration [220] Ground 4 [236] The submissions of the parties [236] (a) The appellant [236] (b) The Crown [238] Consideration [245] Ground 5 [250] The submissions of the parties [251] (a) The appellant [251] (b) The Crown [253] Consideration [255] The proviso [260] Conclusion [280]

[4]

The appellant's relationship with the deceased 6In a record of interview conducted between the appellant and two police officers on 25 March 2005, tendered by the Crown at the trial, the appellant said he met Janet Campbell formerly Fisicaro (the deceased) in January 2000 when he was stationed as an ambulance officer at the Deniliquin Hospital. The deceased lived in Deniliquin whilst he was working at the hospital. The appellant said his friendship with the deceased escalated approximately a year and a half before the deceased's death. The deceased and the appellant were married in September 2004. The deceased was 49 years old when she died on 24 March 2005. 7The deceased had previously been married to Frank Fisicaro and had one son from that marriage, Stephen. Frank Fisicaro died in 1997. According to the deceased's sisters, Ms Eunice Marshall and Ms Ellen Rourke, and a work colleague, Mr Colin Sander, it was rumoured around Deniliquin that the deceased was a wealthy widow. 8The deceased was described by her solicitor, a Mr David Grant, as "simple" and being of "below average intelligence". An acquaintance, Mr Stanley Drummond, said she was "a little bit slow". The deceased's sisters and her son gave evidence that the deceased did not play sport, participate in any exercise activities or like camping. Her sister, Ms Rourke, and her son said she had a fear of heights and her brother said she hated the dark. 9By contrast the appellant told police after the deceased's death that he was not aware the deceased was scared of heights and that she used to laugh at him because he could not stand too near the edge of a cliff. However, photographs were tendered at trial showing the appellant posing for the camera on benches and railings on the edge of lookouts and hills. 10A marriage celebrant, Ms Jennafer Whelan, gave evidence that in August or early September 2003 the appellant and the deceased met with her to discuss their proposed wedding. She said a date was set for later that year. However in October or November the appellant contacted her to cancel the wedding. According to Ms Whelan the appellant told her it was because the deceased had told him an unforgivable lie. 11On 23 March 2004 the deceased contacted a dressmaker, Ms Marlene Erard to make an outfit for her wedding, which she said was planned for 13 April. Ms Erard gave evidence to the effect that the deceased mentioned there were family issues in her family not accepting or liking her fiancée. That same day the deceased visited a general practitioner, Dr Sydney Paul, and requested a contraceptive pill prescription. The deceased subsequently informed Ms Erard the wedding was postponed. 12In April or May 2004 the appellant's brother (Neil), his (then) wife (Ms Toni Sanderson) and her son visited the appellant in Deniliquin. The appellant told Neil that a woman was harassing him and that he should not answer the door or phone. Ms Sanderson's evidence was that the appellant said a woman called Janet was stalking him. She said she heard the appellant on the phone to the woman and he seemed really pleasant. However when he came off the phone he was the complete opposite, denigrating the woman, saying she was very ugly and filthy rich. She said the appellant told her the woman was so ugly he couldn't bring himself to "shag her". Neil gave evidence that he heard the appellant say something like "She was so ugly you would have to chew your arm off if you woke up next to her". Neil said he also heard the appellant say something about how he didn't think he could have sex with someone to get a sports car. During that stay at Deniliquin Neil said he suggested the appellant buy an EPIRB (Emergency Position Indicating Radio Beacon) as he was talking about a hobby of riding trail bikes. 13Mr Colin Sander, a work colleague of the appellant and the deceased, gave evidence. He said that on 25 April 2004, at the ANZAC day horse races in Deniliquin, he went up to the appellant to congratulate him on his engagement to the deceased. He said he had heard about the engagement through general gossip and family members. According to Mr Sander the appellant said that he was not engaged to the deceased, never would be and if she kept on stalking him he would "put out an AVO on the bitch". 14The appellant's superior at work, Mr Robert Crampton, said that whenever the appellant spoke about the deceased it was in a derogatory manner. Mr Crampton said initially the appellant said they were engaged, however subsequently the appellant told him the relationship was finished and from then on he denied vehemently that there was any relationship between him and the deceased. According to Mr Crampton the appellant said to him, on dozens of occasions, from the time the appellant first said the relationship with the deceased was finished to the day he left Deniliquin, that she was "a fat ugly slut, that she was chasing him, texting him, phoning him, that he was sick of it. He was going to - if she kept it up, take out an AVO against her, kick her up the arse and tell her to ... fuck off". 15During the winter of 2004 the appellant telephoned Ms Whelan (the marriage celebrant) stating he and the deceased were intending to be married on 17 September 2004. They were married in Echuca, Victoria on 17 September. No guests were present at the wedding and at the appellant's request Ms Whelan arranged two witnesses to attend the ceremony. The deceased did not tell her family about the wedding. 16Mr Grant gave evidence that on 9 August 2004 the deceased had executed a will leaving her entire estate to her son. However, on 24 September, after her wedding with the appellant, the deceased executed a new will, leaving a legacy of $100,000.00 to her son with the residue of the estate to be divided equally between her son and the appellant. Mr Grant also gave evidence that the deceased asked him to not tell anyone about her marriage. 17Ms Marshall gave evidence that in September 2004 she became aware that the deceased wanted to sell her Deniliquin house. She said that the deceased and her son moved out of their Deniliquin house and in with one of the deceased's sisters in October 2004. Ms Rourke gave evidence that when she and the deceased were packing up the house in Deniliquin the deceased said the appellant had to leave the night they were packing because his brother was ill and in a coma. Neil was not in a coma in hospital. The deceased also told her that she had received an engagement present from the appellant's parents. She said she had not met them but had spoken to them on the phone. The appellant's parents gave evidence they had never met the deceased or spoken on the phone to her. The appellant's father said he had never sent her a present. 18A real estate agent, Ms Julie Humphries gave evidence that on 15 October 2004 the deceased and the appellant viewed two properties in Otford, one of them located at 49 Station Street, Otford (the Otford residence). The property was purchased for $660,000.00. The deceased paid a holding deposit ($1,660.00), the balance of deposit ($64,350.00 on 8 November), the stamp duty ($25,194.00) and later in February 2005, $50,000.00 to reduce what was owing on the mortgage over the Otford residence. The land was held by the appellant and the deceased as tenants in common. 19An acquaintance of the deceased, Mr Stanley Drummond, gave evidence that on 14 November 2004 the deceased told him that the appellant had wanted the house to be in his name so that he could claim benefits from the Ambulance Service. However she said she had kept the house in her name. At the end of 2004 the appellant spoke to a friend, Mr John Thompson. The appellant told Mr Thompson he was looking to buy a place in Otford and had found a place that cost around $600,000.00. The appellant told Mr Thompson he could afford it because his parents had helped him purchase it. 20In late November or early December 2004, the appellant started living at the Otford residence. He commenced work at the Helensburgh Ambulance Station on 18 December. The deceased spent a few days at the Otford residence in December 2004. 21Neil gave evidence that after Christmas in 2004 he went with Ms Sanderson and her son to the Otford residence. The appellant did not mention a woman named Janet or that he had married. Whilst Neil was visiting the appellant, a Ms Gorica Velicanski stayed at the Otford residence in the appellant's bedroom. The appellant's relationship with Ms Velicanski is discussed in detail below. 22Evidence was given at trial to the effect that one day while Neil and Ms Sanderson were at the Otford residence a neighbour from next door, Mr Christopher Wilmott, came over. He said to Ms Sanderson and Ms Velicanski words to the effect, "You must be Des's wife, Janet" or "You must be Janet" or "One of you ladies must be Janet". Both ladies denied being Janet. Neither Neil nor Ms Sanderson questioned the appellant about Janet's identity as the former did not want to jeopardise his relationship with his brother. 23Ms Sanderson said there were three or four occasions when she saw the appellant in close proximity to the edges of cliffs. 24On 28 January 2005 the appellant purchased a two person dome tent and an alpine camper sleeping bag from a K-Mart store in Figtree. The appellant told police after the deceased's death that he initially bought the camping gear with the intention of going camping with Mr Thompson. 25On 15 February 2005 the deceased visited Dr Paul again and was prescribed a contraceptive pill. 26On 23 February 2005 the appellant purchased an EPIRB from Dick Smith, Moore Park. The appellant told police after the deceased's death that he took the EPIRB on the day of the deceased's death because when he first moved to Otford he went for a walk along the cliff track along the bottom of the escarpment and thought it was "really hairy". The next week he had seen EPIRBs on sale. 27On 28 February 2005 Mr Thompson stayed with the appellant for three days. Mr Thompson gave evidence that the appellant did not mention anything about being married or someone coming to move into the house. They went bushwalking but did not go camping. There was no plan to go camping at anytime. 28One of the appellant's work colleagues at Helensburgh, Mr Christopher Robbie, said the appellant told him he was married but there were family troubles. The appellant said his wife was going to move up to Otford with him. It was Mr Robbie's impression that the appellant was looking forward to the day she would arrive. Mr Robbie recalled that two weeks before the deceased's death the appellant was excited about her coming up and showing her the area and taking her camping. 29On 18 March 2005 the deceased moved to the Otford residence. One of the deceased's sisters helped her pack up her belongings in Deniliquin. When they were packing the deceased was putting things into garbage bags. The deceased said to her sister that the appellant had told her it would be easier to carry her things in bags rather than boxes and cases. 30Mr William Young, a brother-in-law of the deceased, gave evidence that on four or five occasions over a period of two or three months the deceased spoke to him about the National Park. She said going to the National Park was part of her initiation for her new life. She said the appellant had been up in the National Park many times looking for a suitable camping site and it was part of her initiation to go camping. 31On 22 March 2005 the deceased spoke to a friend, Mr Barry Navin. She said she moved up to Otford on 18 March and that the appellant was talking about taking her camping in the National Park over the Easter period.

[5]

Financial transactions between the appellant and the deceased 32On 1 April 2004 the deceased withdrew $2,500.00 from a Macquarie Investment Account and deposited it into the appellant's National Visa Account. 33On 7 June 2004 the deceased withdrew $23,000.00 from an investment account and deposited it into the appellant's NAB Flexi Direct Account. She had told her financial advisor that the money was to repay a loan on a property at Castlemaine where the appellant's parents lived. She said the property was in the appellant's name. There was no such property and no such loan. The appellant's parents did not receive the money from the appellant. The funds were used to reduce credit card debts owed by the appellant. 34Upon the sale of the deceased's house in Deniliquin, the proceeds went directly into the appellant's NAB Flexi Direct Account. The appellant used approximately $25,000.00 of the money to pay his debts. 35On 22 October 2004 the deceased and the appellant signed a National Bank loan application. The appellant listed his assets as $2,100.00 and a car. The deceased's assets were listed as a home valued at $280,000.00, a $250,000.00 investment account and a car. 36The Ambulance Service reimbursed $19,333.20 (being the stamp duty paid on the Otford residence) to the appellant on 9 March 2005. Notwithstanding the receipt of this money he did not pay the stamp duty. This money was not passed onto the deceased but rather some of it was used to pay the appellant's debts. 37On 4 January 2005 the appellant purchased a motorbike and transferred $3,500.00 from his account by way of internet transfer. On the same day there was another internet transfer of $5,000.00. 38Throughout April and May 2005 the appellant withdrew an amount totalling $70,000.00 from the joint mortgage account held by the appellant and the deceased and placed part of the money in the appellant's bank account or used it to pay off his credit cards. 39The evidence established that the appellant received by way of benefit from his relationship with the deceased, both before and after her death, a monetary amount totalling $325,202.00. This did not include the benefit he would obtain from the sale of the Otford residence and under the deceased's will. It was estimated that if these amounts were included the monetary benefit would total $467,736.00. 40Ms Rachel Slat, a solicitor specialising in family law gave evidence at the trial. She said that if there had been divorce proceedings in March 2005 the appellant would be expected to receive, through a negotiated settlement or court order, between 0% and 5% of the appellant and deceased's total assets. The evidence was unchallenged.

[6]

The appellant's relationship with the deceased's family 41Ms Marshall stated that the first time most of the deceased's family members met the appellant was around March 2004. Within a couple of days of having introduced the appellant, the deceased told her family members that she was engaged. The deceased's family members and friends gave evidence that they confronted the deceased not long after meeting the appellant, when they heard stories about the appellant, to the effect that he was a womaniser and only wanted to marry the deceased for her money. Members of the family had heard rumours about the appellant's earlier treatment of a Ms June Ingham. The appellant's relationship with Ms Ingham is described below. 42Ms Marshall and Ms Rourke gave evidence that the deceased denied the truth of the rumours and wouldn't listen to what her family was saying. Ms Marshall gave evidence that the deceased was besotted with the appellant. Ms Rourke gave evidence that the deceased told her the appellant didn't need her money as he had his own, had a farm in Bendigo and was going to leave it to her son Stephen, not his daughter from a previous relationship, whom he hated. 43Members of the deceased's family challenged the deceased again when they heard that the engagement was "back on again". This was after having being told by the deceased that the engagement had been called off and it "wasn't worth it" because her family did not approve. The deceased's brother gave evidence the deceased told him that the appellant was going to put an AVO out against him if he kept saying things about the appellant. Members of the deceased's family were not told of her marriage to the appellant until around 17 March 2005, a day before the deceased left Deniliquin. 44The appellant told police after the deceased's death that he thought her family were "interfering pricks". He knew that the deceased didn't tell them she was married to him until a month or so before her death. He didn't think he could name half the family members, because he was not interested in them.

[8]

(a) Ms Ingham 46From 1997 the appellant had a relationship with Ms Ingham, who the appellant met when working in England. In 1999 and 2000 Ms Ingham visited the appellant in Australia. Mr Crampton gave evidence that in 2000, whilst Ms Ingham was visiting the appellant in Deniliquin, the appellant spoke about her to Mr Crampton in a derogatory way. He said to Mr Crampton that he wished she would go home so he wouldn't have to spend so much on her. 47The evidence of Ms Ingham was to the following effect. 48Between November 2000 and April 2001 the appellant asked Ms Ingham over the telephone to marry him. 49In 2001 Ms Ingham received money from a property settlement connected with a previous marriage. Ms Ingham at some stage had discussed with the appellant the amount she was expecting to receive from the property settlement. 50On 4 April 2001 Ms Ingham was picked up by the appellant from Melbourne airport. She had thought she was going to spend the rest of her life with him. Later that night the appellant became very angry when Ms Ingham told him how much money she had received from the property settlement (approximately £28,000.00). The appellant said it was not as much as she was supposed to get. He called her a "fucking liar and a slag". The appellant did not speak to her for the rest of the evening. 51The next day the appellant drove her from the hotel they had stayed at back to the airport and left her there. Ms Ingham went to a hotel. Later that night the appellant called and apologised to Ms Ingham. He said he would return the next day to Melbourne by bus. The appellant also started talking about how he wanted a sports car. 52The appellant came back to Melbourne the next day. He and Ms Ingham went to one car dealership, which the appellant had found, and decided to buy a Lotus Esprit. Ms Ingham paid for the sports car using money from her property settlement. It cost $63,000.00. The appellant contributed $5,700.00 by way of credit card to help pay for the car. Ms Ingham told the appellant she would pay him back, which on 4 May 2001 she did. At that time she also paid the appellant an additional $1,100.00. 53After purchasing the car Ms Ingham went and lived with the appellant in Deniliquin. At some stage the appellant gave her an engagement ring. Whilst Ms Ingham was living with the appellant in Deniliquin the appellant suggested that they sell the car and use the money to buy a house. The appellant said the house would be in his name as she was not a resident of Australia. He made a will out to Ms Ingham so if anything were to happen to him, she would get the house. 54In May 2001 the appellant told Ms Ingham he had sold the car and had not lost that much money on it. An amount of $50,000.00 was placed in the appellant's bank account. Mr Crampton said he remembered the appellant had a Lotus Esprit sports car. He told Mr Crampton he had sold it for $60,000.00. 55Ms Ingham found a house which she agreed to buy in June 2001 for $148,500.00. The deposit for the house was paid out of the funds from the sale of the car on 6 June 2001. The appellant received a first home owner's grant totalling $7,000.00. Ms Ingham never received any of the money remaining from the sale proceeds of the car (that was not put towards the house). 56Ms Ingham lived with the appellant in the house throughout 2001, at times travelling to England to visit friends and family and resolve remaining legal and family affairs. Ms Ingham met the appellant's parents multiple times and also met Mr Thompson. On 27 December 2001 Ms Ingham travelled to England to say goodbye to her family and pack up and send her things over. When in England Ms Ingham packed all her belongings up and shipped them to Australia. Ms Ingham said whilst in England her telephone calls with the appellant got shorter and shorter and he started to not call her back. On 15 February 2002 she received a text message which said, "I'm sorry, but I am moving to live with ex-wife and Jess. Will sell house and send you money. Post me address for your things to be sent to. Have made up mind to do this.". 57Ms Ingham subsequently found out from her younger sister still living in Deniliquin that the appellant was selling the house bought with the proceeds from the car. She obtained a solicitor to help recover the money from the sale of the house as the appellant did not respond to her text messages. She sought to recover $40,000.00 from the appellant. The appellant said he was going to post her things back but she did not receive anything save a photo album. Ms Ingham subsequently discovered in her legal proceedings against the appellant that he had sold the house for $150,000.00. There was evidence that out of this sum the appellant received $22,694.99. Ms Ingham settled her proceedings against the appellant for $9,000.00 by way of two payments, one in September 2003 and one in January 2004.

[9]

(b) Ms Velicanski 58The evidence of Ms Velicanski was to the following effect. 59In 2003 Ms Velicanski received an email from the appellant on the website "youdate.com". Around 10 or 11 September 2003 the appellant went with Ms Velicanski and stayed a couple of nights at Budgewoi. They then travelled to Sydney and spent the evening at the Ibis Hotel at Sydney Airport. They fought, but subsequently the appellant sent a card and teddy bear to Ms Velicanski and asked to continue the friendship. They continued to send regular emails. 60On 19 December 2003 Ms Velicanski flew to Albury and stayed in Deniliquin with the appellant for two or three days. After that trip they remained in contact and in February 2004 the appellant drove to Budgewoi to stay with Ms Velicanski for approximately two weeks. Both in Deniliquin and in Budgewoi Ms Velicanski had a sexual relationship with the appellant. Following the stay in Budgewoi Ms Velicanski and the appellant had regular contact, speaking on the telephone on a daily basis. The appellant told her he loved her. 61Between February and April 2004 Ms Velicanski went and saw the appellant in Albury. In April 2004 she went and saw the appellant in Deniliquin. Whilst visiting, the appellant suggested Ms Velicanski meet his parents. Before the end of Ms Velicanski's stay she and the appellant had an argument so she returned to Sydney. 62Ms Velicanski did not have much contact with the appellant from April 2004 until November 2004. In November 2004 Ms Velicanski received a text message from the appellant asking her to come on a trip with him to Townsville. After this they started communicating again by text message. The appellant told Ms Velicanski he had got a job in, and was moving to, Helensburgh. The appellant visited Ms Velicanski in Budgewoi from 17 to 20 November. Ms Velicanski asked the appellant if he had had any other girlfriends since seeing her in April. The appellant replied "only one local sheep". 63Ms Velicanski next met with the appellant on 20 or 21 December 2004 at a hotel in Darling Harbour. The appellant told her he had bought a house in Otford for $660,000.00 and was going to move into it in February 2005. He did not tell her he was already living at the house. He later asked if she would "trust him" and go away with him for a few weeks "without asking questions". He later invited Ms Velicanski to come and stay in Otford. 64Ms Velicanski went to the Otford residence on 29 December 2004. After being asked by a neighbour, Mr Wilmott, if she was Janet, she later asked the appellant who Janet was. He said she was a friend of his who came with her boyfriend to look at the house. 65Ms Velicanski went to see the appellant in Otford again in February 2005 and on 2, 3, 4, 5, 10, 11, 12 and 16 March. In March, whilst Ms Velicanski was at the Otford residence the appellant said that a friend was coming from Tamworth to go camping with him. He said he was then going to do an Ambulance Service course in Goulburn for six weeks, so Ms Velicanski would not be able to contact him. The station officer at Helensburgh Ambulance Station said the appellant was not enrolled to attend any such course during his time stationed at Helensburgh. At no stage did the appellant tell Ms Velicanski anything about a woman named Janet or that he was intending to get, and later had got, married.

[12]

The day of the incident 72On the morning of 24 March 2005 the deceased spoke to her mother on the telephone and told her that she and the appellant were going camping about five kilometres from their home. She told her mother, "... it's a beautiful camping ground. Everybody camps there. It's all set up." Her mother asked about toilets and she said, "... It's lovely camping grounds here. Everything is here." 73Unless otherwise indicated, the following description of the camping trip was given by the appellant in a recorded interview to police officers early on 25 March 2005. 74The deceased and the appellant had never been camping together before, although the appellant was experienced in camping from his army days when he was a platoon commander in the parachute battalion. The appellant said it was probably more his idea than the deceased's to go camping that day. 75According to the appellant they had spoken about going camping for a long time; however the decision to go camping was made on that day because the weather was good. According to the appellant the deceased had an allergy tablet before they went camping. The appellant did not take a mobile because he rarely had service in Otford, let alone in the National Park. A Royal National Park ranger, Mr William Sullivan, gave evidence at trial that there was mobile telephone reception from most providers about 100 metres south of where the appellant and the deceased had camped. Detective Sergeant Spago also gave evidence that she had been to the site where the deceased and the appellant camped on more than eight occasions and she had not had any difficulty getting coverage from her service provider, Optus, including on 25 March 2005. 76The appellant said he and the deceased drove to the Otford lookout car park. Mr Wilmott saw them leave the Otford residence around 11 am. The appellant had told Mr Wilmott, when asked, that they were camping around "Burning Palms". 77Upon arrival at the car park around 12-12.30 pm they walked from the Otford lookout along the cliff top track until they came to the junction with the coastal track. They followed the coastal track down through the "Palm Jungle" until they came to the general vicinity of the "Figure Eight Pool". 78The deceased was complaining all the time about being tired and her pack being heavy so they stopped at around 2 pm and set up their tent near some small trees, where there wasn't too much grass and a small clearing. The ground was rough and according to the appellant very difficult to walk on, with thick plants everywhere. The appellant dug out a rock and set the tent up with the deceased. The tent was about 15 metres from the edge of the cliff with the door of the tent facing the cliff. The appellant said he "never even thought twice" about the tent and its proximity to the cliff edge. The appellant said he was not familiar with the location where they camped above the "Figure Eight Pool". 79Mr Sullivan gave evidence that he had never seen anyone else camp at the site where the appellant and the deceased camped and that it was not a designated area for camping. At that time there were camping areas at North Era Beach, Uloola Falls and at a trial location at what is now known as Wattamolla. There were signs at the Otford Lookout and along the track saying "no camping" and advising a camping permit was needed. The appellant did not apply for or have a camping permit. Mr Sullivan said that there were reasons why people would not want to camp where the appellant and the deceased camped; namely, the distance from the walking track to the location was difficult because of the nature of the vegetation, the slope of the site would have been uncomfortable to sleep on, there was very little area devoid of vegetation to set up a tent and it was close to the edge of the cliff. Mr Sullivan said the vegetation growing in that area, Lomandra, had sharp points. Mr Sullivan said that the closest camping site was at North Era Beach which would take a minimum of 45 minutes for an average person to walk from the site at which the appellant and the deceased camped. Mr Sullivan said there were toilets at "Burning Palms" in 2005. 80At the campsite the appellant and the deceased ate food, drank tea and coffee, had a small amount of Baileys and lay around the tent. They only noticed it was windy when they were in the tent and saw the top of the tent moving a little bit. The appellant said they were both in good spirits. 81According to the appellant after sunset, or 7 pm, as it was getting dark, the deceased left the tent saying she needed to go to the toilet. She did not take a torch with her and despite having toilet paper did not appear to take any, none being found around the area. There were no signs of anybody having gone to the toilet in the area when it was examined on 25 March 2005. The appellant told her not to go "down that way" as he had been to the toilet there himself earlier on. The appellant said about 15 seconds later he heard a sound like "ooh" or a loud sigh. The appellant said he yelled out something like, "what the fuck have you done?" and the deceased did not reply. 82The appellant said he then went outside the tent and looked around. He could not see the deceased anywhere. When first speaking to police at the St George Hospital he said he looked over the edge and could not see her at the bottom. In the interview on 25 March however the appellant said he tried to get close to the edge to look over at several spots but he could not go really close because he was "a bit touchy about big drops" and climbing "real high ladders". 83The appellant said he became concerned the deceased had gone over the edge, so he got his backpack from the tent and ran along the coastline. He grabbed his backpack because he thought he would need the space blanket in it and he thought there were bandages in there, which there were not. He did not know whether the deceased was over the edge, down the track or hurt. 84At this point the appellant said it was not totally dark and it was light enough so you wouldn't walk into a tree. One of the appellant's neighbours, Ms Judith McGrath, gave evidence that it was an extremely bright night from a full moon. Expert evidence established at trial that 96% of the moon was visible on 24 March, it rose at 6.25 pm and the sun set at 7.02 pm. Civil sunset (beyond which point artificial lighting is needed) was 7.27 pm. 85There were two gullies north of the campsite. The first could not be descended due to a 10 metre vertical drop. The appellant ran along the coastline and at the second gully got to a creek. He climbed down this, using a rope (later measured to be 8.32 metres in length) to descend the last bit of the slope that was about 10 metres to the bottom. The appellant then said he went back along the beach towards their campsite. 86The appellant found the deceased at the bottom of the cliff (adjacent to their campsite). She was in a sitting position further out from the bottom of the cliff than where the appellant thought a person would be. A lot of blood splatter was subsequently observed on the rocks a number of metres from the deceased towards the cliff face. The appellant pulled the deceased's body up onto a flat rock and checked her pulse. He performed cardiopulmonary resuscitation but he knew she was dead. She was bleeding from the head and one eye was closed. 87The appellant described a huge swell which he said meant he had to drag the deceased onto higher rocks so she wouldn't be swept away. He said she was "pretty heavy" and it was "very difficult". He put his jacket over her and set off his EPIRB some time before 8 pm. The EPIRB was first detected by a satellite beacon between 7.25 and 7.35 pm. The appellant recalled that the moon was up. He said at the time he did not know how long he should wait or whether he should run back to Otford to get help. 88A partial footprint (matching the deceased's shoes, probably her right shoe) was subsequently identified just over the edge of the cliff where the slope of the ground was 25.64 degrees. There were small tea-trees and a number of their branches were freshly broken off. The broken branches were at a height of 1.435 metres and 1.480 metres, around chest height on an average person. Blood or human tissue was found at several points down the cliff. The evidence at trial indicated the shoelaces on the right shoe of the deceased were undone.

[13]

The rescue operation 89A rescue helicopter was dispatched and arrived just before 10 pm at the location in Otford. According to a paramedic on the helicopter the conditions were quite good; clear, cool with a minor breeze. The moon was up and there was good visibility. 90The paramedic was winched down the helicopter onto the rock platform. He saw an EPIRB in a shoe on a rock fairly high up out of any water. He saw another shoe in a crevice. The deceased was face down winched between some rocks, in amongst the waves so the paramedic could not attempt a retrieval. The appellant was standing on a rock a number of feet back. 91The paramedic moved the appellant 25 metres back to be safe from the waves. He had a conversation with the appellant in which the appellant said it was his fault as he had brought the deceased away camping for the weekend and now she was dead. The paramedic asked the appellant if he had moved the deceased, to which he replied "no". The appellant appeared to be somewhat confused, very nervous, shaking, severely distressed, nauseated and dry reaching. He was not injured. The paramedic gave evidence that the appellant's clothes were dry, not wet. 92The appellant was winched up to the helicopter and flown to St George Hospital at Kogarah, arriving at 11.05 pm. During the helicopter flight the appellant did not say much. On arrival the appellant looked like he was in shock, he was quiet, staring off and teary at times. 93At St George Hospital two nurses noted the appellant was wet from the knees down. Whilst being examined by a nurse the appellant said "We have only been married for six months". He then placed his head in his hands and sobbed. He said he did not have any next of kin. 94The deceased's body was subsequently retrieved by a second helicopter operation. When the appellant formally identified the deceased he began crying loudly and hugged her for about 30 seconds. 95The appellant had a recorded interview with the police on 25 March 2005. At the end of the interview the appellant said, "You know, I feel as though I'm doing, I feel as though I'm doing her a great disservice when I can't show the, can't show my emotions, like I want to, when, you know, but I just, I don't, I can't find it in myself now at this stage to have anything just waffling forget it."

[15]

After the incident 99On 26 March 2005 the appellant sent text messages to Ms Velicanski at 5.11 pm and 5.38 pm. 100On 27 March 2005 a senior ambulance chaplain, Reverend Ray Green visited the appellant. The appellant appeared traumatised and confused. His responses to questions relating to the funeral arrangements were incoherent and he made no definite decisions. The appellant was agreeable, upon Reverend Green's suggestion, for him to contact the deceased's family. Reverend Green contacted the deceased's son and subsequently was contacted to be told the deceased's family would be claming custody of the body. That same night at 8.20 pm a call was made from the deceased's mobile to vote on the show "X Factor". 101On 28 March 2005 Mr Grant, acting on behalf of the deceased's son who was executor of the deceased's estate, applied to the State Coroner's Office for a release of the deceased's body on the directions of the executor. The appellant withdrew his claim to not release the body. The appellant's superintendent, Louise Hennessy, visited the appellant and arranged that he would not have to return to work until 14 April, as opposed to 6 April as was on his original roster. Ms Hennessy observed the appellant appeared sad, with redness around his eyes, was constantly wiping his noes and at one stage was crying. 102On 29 March 2005 the appellant went to a Harvey World Travel store and inquired about brochures on Asian destinations. The appellant then inquired about travelling to Townsville. He said he wanted to travel from 1 April to 6 April and there would be two people travelling, himself and his wife. When asked for the names of the people travelling the appellant gave Ms Velicanski's name. The appellant proceeded to pay for the trip to Townsville. 103Ms Velicanski confirmed she received a phone call from the appellant on 29 March 2005 asking if she had a passport and whether she would go overseas with him for a holiday. Ms Velicanski said she could not go away because of work commitments but could leave from 1 April to 6 April. 104On 31 March 2005 Mr Grant received a letter by fax from solicitors acting for the appellant, requesting a copy of the will of the deceased. The same day Neil came and stayed at the Otford residence. Neil had found out about the deceased's death when he received messages of condolence on his phone, which used to belong to the appellant. After reading the messages he went on the internet and found out about the deceased's death. He went to see the appellant to provide support. 105Neil gave evidence that when he saw the appellant on 31 March 2005 he was "obviously very, very drunk". He was mixing extremely strong drinks, had bloodshot eyes and kept going into silences. Neil had never seen the appellant like that. 106On 1 April 2005 the appellant and Ms Velicanski went away to Townsville. Neil stayed at the Otford residence. Neil's evidence was that before the appellant left the Otford residence he suggested Neil use his RSVP account while he was away. However Neil said although he tried to use the account it didn't work and after that attempt he did not communicate with anyone on that account. 107Ms Velicanski gave evidence that in Townsville she and the appellant went to bars, restaurants, the beach, on car trips and to lookouts. They had a sexual relationship during this time. However they had a fight on 4 April and the appellant packed his bags and left. 108On 5 April 2005 the appellant made a payment to the dating site RSVP in order to communicate with other profiles on RSVP. On 5, 7, 8, 11 and 12 April the appellant's RSVP account communicated with several other RSVP accounts. 109The appellant did not attend the deceased's funeral which took place on 6 April 2005. 110On 10 April 2005 Ms Velicanski gave evidence that she went to the appellant's house in Otford to drop off presents she had bought him in Townsville. The appellant told her he had a singles party that night but to wait for her at the house. When he arrived at the Otford residence that night he proposed to her and asked her to move in to the Otford residence with him. Ms Velicanski stayed for some weeks at the Otford residence. She saw no female clothes or toiletries or any sign that anybody else had recently lived there. She once discovered a rates notice with the names "Des and Janet Campbell" as well as a wedding card. The appellant found her reading the card and became very angry and yelled at her. However the appellant convinced her he was not married. At some stage the appellant told her that if the police ever contacted her she should deny knowing him. 111Within two weeks of the deceased's death one of the appellant's neighbours, Ms McGrath, saw the appellant burning something in his backyard. 112On 20 April 2005 the appellant signed an agreement for a real estate agent to sell the Otford residence. 113During the four week period after the death of the deceased the appellant made 12 phone calls and 54 text messages to Ms Velicanski, 30 text messages to Ms Rodgers and 3 text messages to Ms Aldred. One of the text messages to Ms Velicanski was in response to a text message from her inquiring about the camping trip. He responded he did not go because it was too wet. 114In May Ms Velicanski terminated her relationship with the appellant. In mid-May Ms Rodgers met with the appellant and spent two nights at the Airport Hilton with him. Ms Rodgers gave evidence that the appellant never mentioned Janet, a wife, buying a house in Otford or someone close to him having died. 115The appellant did not contact any members of the deceased's family. However Ms Marshall gave evidence that over the following few months they attempted to contact the appellant to obtain the deceased's personal property. They tried ringing the appellant, however if he answered the phone, when the family identified themselves he would hang up. The family eventually faxed the appellant sometime in June 2005 saying they were coming to Otford in person. 116Ms Marshall gave evidence that on 1 July 2005 members of the deceased's family arrived at the Otford residence around 5.00 pm to 5.30 pm. The appellant locked the doors and closed the curtains and drapes. The appellant said he would contact the police if they did not leave his property. When the police came the deceased's family obtained her car. Subsequently they collected a small box of items from the appellant's solicitors. 117Mr Thompson gave evidence that in July 2005 he visited the appellant at the Otford residence and went to the Otford lookout. The appellant did not mention having been married or his wife having died. 118On 31 August 2005 the appellant's home was searched. After searching through the photographs on his computer, no photograph of the deceased could be found. There were photographs of Neil, Ms Sanderson and her son, Ms Velicanski and of the appellant's then fiancé (and future wife), Melissa. 119The appellant's parents learnt of the deceased's death when the appellant telephoned and said something to the effect that the love of his life, that he was going to live with for the rest of his life, had been killed. The appellant did not say he was already married to the deceased.

[16]

(a) Associate Professor Rodney Cross 120Associate Professor Cross gave evidence that he was an honorary member of the Physics Department at Sydney University, holding this position since 2004. He said he had conducted a lot of research into plasma physics and the physics of sport. He said he had been involved in consulting work involving fatal falls from balconies and cliffs and had published extensively on the physics of sport. Associate Professor Cross said he considered himself a "pretty good" biomechanic but was not particularly familiar with the medical terminology of biomechanics, more the mechanic aspect of it. 121Associate Professor Cross gave evidence that standing on a 26 degree slope was like standing on a tiled roof. He said if someone was standing facing the edge of the roof they would feel slightly unbalanced. He distinguished it from the slope on a travelator at shopping centres which has a maximum allowed incline of around 12 degrees. 122Taking into account the partial shoe print and broken branches Associate Professor Cross considered the deceased was upright as she went over the cliff, as opposed to crouched or rolling. 123Associate Professor Cross considered a range of scenarios as to how the partial shoe print could have been left. In a scenario where the deceased was standing, looking at the view, Associate Professor Cross considered she would be in an unstable and uncomfortable position. This was particularly the case if she was standing on just one foot, as indicated by the one foot print. In a suicide scenario, Associate Professor Cross said it was physically possible for the deceased to step down onto the slope and to jump off in a suicide attempt, except for the fact there were branches directly in front of her. He also said it was physically possible the shoe print was left from a scenario where the deceased was doing a cartwheel. However, he added that most people cannot cartwheel. Associate Professor Cross said it was not physically possible that the shoe print was caused in circumstances where the deceased was sitting on a rock and put one foot down, as the rock in question was too far away from the shoe print. Associate Professor Cross said he would have expected to see slip and slide marks on the ground if she had been slipping or sliding. 124Associate Professor Cross also considered a scenario involving the deceased tripping. There were two rocks approximately one metre from the partial shoe print. They were both 50 millimetres above the rest. One of the rocks was on a boundary between a 16 degree and 26 degree slope. 125Associate Professor Cross said the partial shoe print could have been caused if the deceased was walking at a brisk or medium walking pace, tripped on one of the rocks and then stepped on the soil a metre beyond. Associate Professor Cross agreed the degree of the slope on which the person was walking would have a small effect on the distance over which a person could recover their balance or the pace at which a person would have to be moving to end up stepping on soil a metre beyond the trip point. He said he could perform experiments to quantify the effect but had not yet done such experiments. 126Associate Professor Cross considered the deceased would have tripped on the rock that was closest to the shoe print. Associate Professor Cross said walking at a medium to fast pace in the vicinity of either of the rocks, close to the cliff would be perilous or dangerous. Associate Professor Cross said the shoe print was inconsistent with tripping on a shoelace. However he conceded in cross-examination that it was possible for a person who trips on their shoelace to regain their balance even momentarily, depending on how firmly they stepped on the shoelace. 127In dealing with a scenario where the deceased was pushed, Associate Professor Cross said he considered the partial shoe print was more likely to be the second or third step of the deceased, rather than the first step she would take to recover from the push. Associate Professor Cross said the partial shoe print could in that way be consistent with the deceased being vigorously held by the arms by a person who ran a few steps towards the edge with her and then pushed her. 128In cross-examination Associate Professor Cross was asked whether he was familiar with the position of the foot when it was in a state of plantarflexion. He stated this was a biomechanical term and he was not particularly familiar with the medical terminology of biomechanics, although he was familiar with the mechanical side. 129Associate Professor Cross also agreed in cross-examination that a person who slips on a shoelace does not necessarily fall flat on his or her face but said it was the most likely outcome. He also agreed that a person's ability to regain his or her balance from a trip depended on a lot of variables. These included the person's reflexes, their physical condition at the time (such as whether they were suffering stiffness or soreness), whether they were fatigued or relaxed in terms of their concentration and the evenness or unevenness of the terrain. 130Associate Professor Cross agreed a fit athlete would recover more quickly than an unfit, non-athletic person. He also agreed that the partial shoe print was consistent with a person standing at least slightly forward, although he said it was also consistent with other possibilities. He agreed that a person walking at a moderate walking pace who was "ankle-tapped" could take further steps in an attempt to recover from the trip before falling to the ground. Similarly a person tripping on a shoelace, over a rock or some Spinifex could have the same reaction. 131Associate Professor Cross was subsequently called for further examination. By that time he had been provided with Mr Beck's report. He agreed that the two most likely scenarios were that the deceased was tripped as she was walking towards the edge of the cliff or that she was pushed. 132However, he disagreed with Mr Beck's opinion to the extent it suggested it was more likely the deceased tripped. Associate Professor Cross considered the fact that the partial shoe print was of a toe print was the predominant reason Mr Beck came to the conclusion a trip was more likely than a push. He was of the opinion that such a fact was not decisive because the sole reason there was only a toe print may have been because the soil conditions simply prevented a heel print (or complete foot print) from being created.

[17]

(b) David Beck 133David Beck gave evidence at trial that he was a qualified mechanical engineer and biomedical engineer. He said the field of Biomedical Engineering was the application of the anatomy and physiology of the human body to a specific field of engineering, in his case, the mechanics of the human body in terms of its movement and reactions. 134Mr Beck said based on the partial shoe print the foot was in plantarflexion, which he likened to a woman walking in high heels. Mr Beck was of the opinion that when the shoe print was made the deceased's body was slightly, to well, forward. 135In cross-examination Mr Beck considered it unlikely the reason the partial shoe print was a toe print was because of the soil conditions. This was because he had inspected the soil and said it was very soft and that people usually apply more pressure to their heel than to their toe. He said notwithstanding twigs and debris there still should have been some imprint of the heel on the soil. However he conceded he did not realise the significance of some tufts of grass near the partial shoe print which could have impeded the formation of a complete shoe print. 136Mr Beck gave evidence that he would rule out the scenario of the deceased having slipped. He said the evidence was equally consistent with the deceased having been pushed or having tripped. 137With respect to the tripping scenario, Mr Beck identified numerous trip points, one being 1.5 metres from the cliff edge. However he did note there were other trip points such as Spinifex and rocks that were in a three metre radius of the cliff. 138Mr Beck gave evidence that the ability, speed and distance at which a person was able to recover from a trip was affected by where in the "swing" of a person's foot they tripped, the age of the person, stiffness or fatigue in the person, their fitness and weight and the decline of the terrain. He said that males generally recover from trips faster and are less likely to fall to the ground and injure themselves than females. Mr Beck considered the reaction time was somewhere between 0.3 and 0.4 seconds. 139Mr Beck said that taking the trip point as 1.5 metres from the cliff, on an incline of 14.9 degrees, he conservatively estimated it would take a woman of the age and weight of the deceased 4.7 metres to recover from a trip. This was if the trip occurred at the most conservative part of the swing in the person's foot, namely a trip mid swing. He estimated if the slope was 17 degrees it might take her 5 metres and on a 26 degree slope 7 metres to recover from the trip. 140Mr Beck considered it would not have an effect on his estimations if he were to assume that the deceased was of reasonable fitness as the trip points were so close to the cliff edge that even if she was fitter she still wouldn't have been able to recover in time to avoid a fall. In cross-examination Mr Beck clarified his estimations were based on a study which showed the recovery time of young active men in their 20s tripping when walking at a pace of 1.1 metres per second (or 4 kilometres per hour). Mr Beck used this study and then made allowances for the deceased's gender and age to generate his estimates. He said the deceased would have been walking a bit slower than four kilometres per hour. 141Mr Beck also gave evidence that the ability of a person's vision to distinguish colours diminishes during twilight hours or as light diminishes.

[18]

The Crown case and the directions to the jury 142To understand the submissions on Grounds 1 and 3, it is necessary to say something about the manner in which the Crown sought to prove its case and the directions given by the trial judge to the jury. 143In opening the Crown put its case as follows: "Now, ladies and gentlemen, so far as the law is concerned and the charge that the accused is facing in this particular trial is very, very simple and straightforward. The elements of a charge of murder are, firstly, a death. In this case the death is the death of Janet Campbell, the accused's wife. There will be no dispute that the death occurred. The second element is that the death must be occasioned by an act of the accused. There must be some act of the accused which caused the death. That is very much in issue in this trial. Thirdly, the accused must have performed that act intending to cause the death of the deceased, as we call the person who has died. In this case, also, that is very much in issue. The real issue in this case is: Did Janet Campbell die by virtue of a tragic accident or, alternatively, has the Crown proven, beyond a reasonable doubt, that she died because she was pushed over a cliff deliberately by the accused? If she was pushed over the cliff deliberately by the accused, I don't think anybody would suggest that he had anything other than an intention to kill her. The cliff, over which she went, was something like 50 metres high. Anybody pushing another human being over a cliff of that height must intend to kill that other person. ... Ladies and gentlemen, when Janet Campbell went over the cliff, she left a partial impression of a single shoe print in the steep area right next to the steep drop and right next to this partial shoe impression, the police found the two branches from that tree just to her left had been recently broken off at about chest height. When the shoe print was found by the police, they took a plaster cast of it and that plaster cast was later compared with Janet's shoes and you will hear expert evidence that it is consistent with being part of the front portion of either the left or right shoe print with her feet facing forwards. If you look at this photograph in your folders, Detective Moon is actually standing in the 48-degree slope and his hand is at the base of the 26-degree slope to next [sic] the base of that tree and he is pointing out, as I understand it, in that photograph where the partial shoe impression was found. When we go to the scene, there will be something in the ground to mark where that shoe impression was found and Detective Moon will be there, harnessed like you will be not down there, but actually at the top just where this rock is. He'll then take you up to the edge where this piece of rock is (indicated), so you can see over where the shoe print was and you will see the broken branches at about chest height. The Crown case is that, to have caused a clear, unsmudged shoe print in that section of the steep cliff edge, Janet must have gone over the cliff in an upright position, facing forwards. If she had somehow, inexplicably not known where the cliff was and put a foot in that section, she would have slipped, slided, there'd be slide marks, there would not be a clear - when I say 'clear', a defined shoe print. The defined shoe print occurred, the Crown says, because somehow - we don't know how - the accused got her to stand near the edge of the cliff and forcefully pushed her over and she, unexpectedly, going towards the cliff, naturally puts her foot in front of her, goes down, makes the shoe impression and of course she can't stop herself, she grabs the only thing which is there, which is that tree, breaks it off and then goes over the cliff. If she had slipped, it would have been quite different. ... Ladies and gentlemen, we now come to the period after Janet's death. And the Crown case is that the accused was totally and utterly unaffected by the death of his new wife. The Crown case is that that is because it was not an unexpected death, it was not a tragic accident, but, rather, it was the result of his long-term plan." 144The Crown case as opened thus postulated two scenarios. Either the appellant pushed the deceased over the cliff or she slipped and fell in a tragic accident. 145Prior to the closing addresses, the following exchange occurred between the trial judge and counsel: "HER HONOUR: Up until now, the parties have almost entirely concentrated on whether it was a push or a trip. It occurred to me that it is, consistent with the facts, if the jury accepted the facts - and, at this stage, they seem to be uncontradicted in terms of the features of the site and things of that nature, the lightning conditions and things of that nature - it seems to me to be open for the jury to find that the accused may well have either pushed or held Ms Campbell or Ms Fisicaro roughly by the arms and propelled her towards the cliff and then she tripped in the momentum that was initiated by the accused and fell over the cliff, in other words, I don't see that a push and a trip is necessarily inconsistent with the facts, nor do I think that it is inconsistent with the Crown case and likely to form murder. Does anyone want to say anything about that? I am just raising it because I don't want it to come up later on and then the parties are caught unawares. HUGHES: Your Honour, I have to say if that scenario was entertained, that is still consistent with being a push and it is still pushing, he would still be liable for murder, if as a consequence of that, she tripped, that was the intention as to the end result. HER HONOUR: That's right. All I wanted to say was I don't think that they are mutually exclusive. HUGHES: No, that's my position. I think your Honour is quite right. HER HONOUR: Do you want to say anything about it, Mr. Crown? CROWN PROSECUTOR: No, I agree." 146The Crown Prosecutor in his closing address did not refer to this possibility but maintained the case that the appellant deliberately pushed the deceased over the edge. He did not embrace an alternative submission; namely, that the jury could find that the appellant pushed the deceased towards the cliff resulting in her tripping and falling over the edge, consequently giving rise to liability on the basis of reckless indifference to human life. 147In her directions to the jury, the trial judge gave the following directions (the subparagraph references have been inserted by me for ease of reference): "(a) The accused maintained in his record of interview that he did not see what happened. You cannot speculate why Mrs Campbell was in close proximity to the cliff edge, but we know that she was there. We know that she was afraid of heights, we know that she was not an athletic person, we know that she was unfamiliar with bush terrain; we know that she was not affected by alcohol, although she was an inexperienced drinker, we know her jeans have not been undone, we know that there was enough light so that she could see the cliff edge and the vegetation and the general nature of the terrain. We know that she was close enough to the cliff edge so that she could be pushed over the edge or close enough, so that if she tripped, while facing down the slope, she was unable to recover her balance and she fell over the edge; or she was close enough so that a firm push towards the edge, followed by a trip, propelled her over the edge where her shoe impression was found. We know that she tried to save herself by grasping a nearby branch of a tree and that it broke in the attempt. You will appreciate that counsel in this trial have concentrated on one of two scenarios: Either Mrs Campbell was pushed; or she tripped. But I just want to remind you that they are not mutually exclusive. Even if the accused pushed Mrs Campbell towards the edge of the cliff so forcefully that she tripped as she was propelled forward and then was unable to recover her balance before going over the edge, that would nonetheless meet the legal requirements of murder, because the accused's act in pushing Mrs Campbell is a substantially contributing cause of her death.(Summing Up 10/05/2010 pg 8-9) ... (b) Now, I am going to outline to you the ingredients of the charge of murder. The crime of murder has been committed by the accused if the Crown has established beyond reasonable doubt each of the following: Firstly, that it was the deliberate act of the accused that caused the death of the deceased; secondly, that the act causing death was done with an intention to kill the deceased or to inflict grievous bodily harm upon her which is simply another expression for really serious physical injury; or with reckless indifference to human life. Just in relation to that last phrase, reckless indifference to human life, an act is done with reckless indifference to human life if the accused foresaw or realised that his act would probably cause the death of the deceased, but he continued with that act regardless of the risk of death. Now, these two ingredients or elements if you like, namely that it was the deliberate act of the accused and that the deliberate act was done with the particular intention or with reckless indifference to human life, they are the two elements that the Crown must prove beyond reasonable doubt before you could return a verdict of guilty against the accused. May I suggest that the real area of dispute is concerned with the first element, namely: Was it the accused's deliberate act that caused Mrs Campbell to fall from the cliff to her death; or was it nothing more than a tragic accident? It has not been suggested that, if someone deliberately pushes another person from a 50-metre cliff onto a rock platform below, that such an act, deliberate act, would not be done with the intention to kill or to at least cause very serious injury. That is not a proposition that could be seriously argued by anyone. Similarly, a deliberate push towards the edge of such a cliff would demonstrate very considerable reckless indifference to human life. So, may I suggest to you that, if you were to find that the accused did deliberately push her from the cliff, there could really be no serious dispute about what his intention was at the time given the nature of the height of the cliff and the terrain below. (Summing Up 10/05/2010 pp 18-19) ... (c) In some cases a person's acts may themselves provide the most convincing evidence of his intention at the time. Where a specific result is the obvious and inevitable consequence of a person's act and where the person deliberately does that act, you may readily conclude that he did that act with the intention of achieving that particular result. Now, that is, in effect, what the Crown argues here. The Crown says you would find beyond reasonable doubt that the accused intentionally pushed Mrs Campbell or held her firmly from behind and steered her to the edge of the cliff; that she reached what has been called 'the point of no return' and he did that with the intention of killing her; the Crown asks you to infer or to conclude that the height of the cliff and the nature of the surface onto which she fell demonstrated that the accused intended that she would be killed or, at the very least, very seriously injured. (Summing Up 10/05/2010 pp 20) (d) The third state of mind which is the basis of murder is referred to, in legal terms, as 'reckless indifference to human life'. So if, at the time the accused committed the act that caused the death of the deceased, he foresaw or realised that his act would probably cause the death of the deceased, that he continued to commit that act regardless of that consequence, then the accused would be guilty of murder. What is at the nub of this mental state is that the accused must contemplate or foresee that death was a probable consequence or likely result of what he was doing. If he did come to that realisation, but determined to go on and commit the act, regardless of the likelihood of death resulting and death does in fact result, then he is guilty of murder. The conduct of a person who does an act that he knows or foresees is likely to cause death is regarded, for the purposes of the criminal law, to be just as blameworthy as a person who acts with an intention to cause death. For this basis of murder, the accused's actual awareness of the likelihood of death occurring must be proved beyond reasonable doubt. It is not enough that he believed only that really serious bodily harm might result, or that he merely thought that there was a possibility of death. Nothing less than a full realisation on the part of the accused that death was a probable consequence or the likely result of his conduct is sufficient to establish murder in this way. Again, you are concerned with the state of mind that the accused had at the time he committed the act causing death. It is for you to determine what the act causing death is and, in the context of the Crown case, the Crown has alleged it is the accused deliberately pushing Mrs Campbell from the edge of the cliff. May I remind you, of course, there is no direct evidence of what the accused's state of mind was, such as a confession or statement made at the time, but, of course, to state the obvious: The accused has always denied playing any part in his wife's death."(Summing Up 10/05/2010 pp 20-21) 148With that background it is convenient to deal with the grounds of appeal relied upon.

[20]

(a) The appellant 149The appellant submitted that it was the trial judge who introduced for the first time the hypothesis that the appellant, acting with reckless indifference to human life, pushed the deceased who tripped and fell over the edge of the cliff. 150The appellant submitted that the defence was deprived of an opportunity to respond to this alternative basis of liability and had conducted its case in a manner aimed at undermining the Crown case as opened and advanced at the trial. The appellant in his written submissions did not indicate in what fashion the trial would have been conducted differently. 151The appellant also submitted that the irredeemable prejudice which occurred was that "it entirely undermined the forensic mileage the defence had made in cross-examination". He submitted that it was the Crown case that the appellant somehow managed to get the deceased to stand near the edge of the cliff and pushed her over to her death. He submitted the Crown case on this basis was open to the exclusion of accident. This was because the "unsmudged" footprint was consistent with the deceased having been upright and facing forward at the time the print was left, which in the Crown case was inconsistent with a trip or a slip. 152The forensic mileage that the appellant was referring to in that context, was the concession by Associate Professor Cross that one of the two most likely scenarios was that the deceased tripped as she was walking towards the edge of the cliff. The appellant submitted that the introduction of the scenario of a push with reckless indifference to human life followed by a trip and a fall, undermined this evidence and the evidence of the appellant's own expert, Mr Beck, who stated that the possibility of a trip or a push were equally consistent. 153In particular, the appellant contended that the defence case "neutralised the evidential significance of the evidence of Associate Professor Cross in cross-examination". He referred to the following concessions which he said were made by Associate Professor Cross: "He was not a biomechanic, however the witness classified himself as 'a pretty good biomechanic, but on the mechanics side of biomechanics'. A person who trips on a shoe lace does not necessarily fall flat on their face. The ability to recover from a trip was affected by many variables. The print was confined to the toe area of the foot, which was not confined to the deceased being in a stationary position at the time it was laid down. The most likely scenarios were that the deceased tripped as she was walking towards the edge of the cliff or that she was pushed, albeit that he did not prefer a trip because a trip required [a] moderate pace about which he gave evidence in the demonstration before the jury." (References omitted). 154He contended the unchallenged evidence of Mr Beck was that a push or a trip were equally consistent. He said that this evidence was also undermined by the alternative scenario put by the trial judge. 155In making this submission the appellant relied on what was said by this Court in Reg v Solomon [1980] 1 NSWLR 321, where it was held that a trial miscarried by reason of the introduction by the trial judge of reckless indifference to human life as a basis for a finding of guilt of murder. He also referred to the summary of the relevant legal principles by Johnson J in Robinson v The Queen [2006] NSWCCA 192; (2006) 162 A Crim R 88. 156The appellant summarised the prejudice as follows: "that the intervention of the trial judge firstly urged upon the jury a particular mode of thought and one that was, if the jury came to a certain view, incontrovertible evidence of guilt; this mode of thought appeared to have a logic invited upon the jury by the trial judge giving it the weight of a judicial imprimatur; it was a logic which was not the subject of defence address or evidential attack during the course of the trial; the speculative hypothesis was not based on any evidence; in the absence of any assistance as to unlawful and dangerous act the jury could only have understood as a matter of inexorable logic that if satisfied of the speculative basis for the push the appellant was guilty of murder." 157At the hearing of the appeal counsel for the appellant submitted that it was entirely speculative for the trial judge to leave to the jury the factual scenario from which it could be concluded that the appellant acted with reckless indifference to the life of the deceased. She submitted that the evidence of tendency and motive which was adduced was capable of proving an intent to kill but not capable of establishing a push with reckless indifference to the life of the deceased. 158Counsel for the appellant accepted that r 4 of the Criminal Appeal Rules (NSW) (the Rules) applied and that it was necessary for her to demonstrate procedural or substantive unfairness. She emphasised the unfairness which resulted from the fact that counsel had no opportunity to respond to the direction. 159Counsel for the appellant submitted that in the circumstances of this case, particularly in light of the evidence of Associate Professor Cross, the only way the jury could have found the appellant guilty was if they were satisfied beyond reasonable doubt that he had intent to kill. She submitted that the alternative, suggested in the direction of the trial judge, did not address the evidence which either supported or tended against the conclusion of reckless indifference to human life. 160Counsel for the appellant submitted that having regard to the manner in which the case was conducted, the alternatives were that the deceased was either deliberately pushed over the cliff or it was an accident. She submitted that the scenario of a push and a trip was not supported by the objective evidence. She submitted that the factual scenario of a push followed by a trip was inconsistent with the expert evidence of Associate Professor Cross. However, she acknowledged there was no ground of appeal that the verdict was unreasonable. 161Counsel for the appellant submitted that the interchange between the trial judge and counsel to which I have referred in par [145] above did not amount to acquiescence in the direction of reckless indifference to human life.

[21]

(b) The Crown 162The Crown submitted the direction was correct in law and available on the evidence. It was submitted it did not materially change the issues to be considered or the case to be met by the appellant. 163The Crown submitted that in her direction to the jury the trial judge identified the real issue in the case, namely, how the deceased came to fall from the cliff. It was pointed out that the inclusion of reckless indifference to human life as a basis for liability was not the subject of complaint during the trial and as a consequence r 4 of the Rules applied. 164The Crown submitted that the fundamental task of the trial judge was to ensure a fair trial. It was submitted, referring to what was said by Street CJ in Reg v Solomon supra, that there may be occasions where the trial judge should put to the jury matters of fact or law not put forward by the Crown. It was submitted that in those circumstances appellate intervention would only be justified if the accused was placed at a tactical disadvantage. 165The Crown placed reliance on what was said by Johnson J in Sheen v The Queen [2011] NSWCCA 259; (2011) 215 A Crim R 208 at [85], of the significance (in that case) of the absence of objection supporting the view that there was no prejudice. The Crown also noted Johnson J's statement at [88] that in the case of a complete denial of the events giving rise to the offence, there would have been nothing counsel could usefully have added in his closing address. It was submitted that in the present case liability on the basis of reckless indifference to human life was for all practical purposes the same as liability arising from intention to kill. It was emphasised that the appellant's case was that he had no involvement with the deceased's fall. 166The Crown placed some reliance on the fact that in his closing address at the trial the prosecutor pointed to the fact that the expert evidence supported the conclusion that the shoe trip was caused by the second or third step after being pushed. 167Both in written submissions and at the hearing particular reliance was placed on r 4 of the Rules. Senior counsel for the Crown emphasised that litigants are bound by their counsel's conduct of the case, "a principle that forms part of the practical content of the idea of justice as applied to the outcome of a particular case". This was a reference to Gleeson CJ's comments in Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161 at [18]. 168Senior counsel for the Crown submitted that the expert evidence did not shed much light on what happened at the edge of the cliff. She submitted that both experts agreed that the deceased could have tripped. She submitted the evidence established that the deceased's foot was on the edge of the cliff and that both experts agreed she was upright. She pointed to the fact that the cliff was extraordinarily steep. 169In that context senior counsel for the Crown submitted the only issue was whether the deceased was pushed by the appellant or whether her death was an accident in which the appellant was not involved. She submitted that the addition by the trial judge of the factual possibility that the deceased was pushed and then tripped, and the possibility that she was pushed with reckless indifference to her life, did not affect the case presented by the accused. 170Senior counsel for the Crown contended that the submission by the appellant that the "push and trip theory" was not consistent with the expert evidence was not correct. She accepted that the scenario was not expressly considered by either expert but submitted the experts both said they could not say whether there was a push or a trip because there was only one footprint. However, she noted that both experts agreed that the deceased was upright, moving forward and that she was either pushed or tripped.

[22]

Consideration 171The task of an appellate court in considering a ground of appeal of this nature is to determine whether there has been an unfairness to the accused, by reason of the manner in which the trial was conducted, which gives rise to a miscarriage of justice such as to require the court's intervention: Reg v Solomon supra at 327-328; Robinson v The Queen supra at [149]. 172It was explained in Reg v Solomon supra that in some circumstances there is an obligation on a trial judge to put to the jury defences which appear to be reasonably open, notwithstanding they may not have been raised by the defence. However there is no corresponding obligation to put to the jury matters tending to conviction not raised by the Crown. Street CJ stated at 327 that the fairness or unfairness of travelling beyond the ground covered by the Crown would be at the forefront of the judge's mind in deciding whether to put fresh considerations to the jury: see also Moffitt P at 334. 173The possibility of unfairness is the reason that appellate courts have consistently warned against a judge putting to a jury matters not relied upon by the Crown. In R v Pureau (1990) 19 NSWLR 372, a case where the trial judge first raised the possibility of an alternative verdict, Hunt J at 376 said that considerations of fairness meant normally such matters must be raised before closing address when all disputes about the issues to go to the jury should be resolved. The passage was approved by the High Court in James v The Queen [2014] HCA 6; (2014) 88 ALJR 427 at [34]. In Regina v Meher [2004] NSWCCA 355 at [87] Wood CJ at CL, with whom the other members of the Court agreed, stated that a trial judge should normally refrain from putting an argument in support of the Crown case which was not put by the Crown. 174It is not possible to define all the circumstances in which unfairness could arise. However, one occasion when it may is where the accused is placed at a tactical disadvantage. For example, when the accused (or counsel retained on his or her behalf) has conducted the case, called evidence and cross-examined on the basis of the manner in which the Crown presented its case, a tactical disadvantage would arise where the case would or may have been conducted differently had the issue raised by the trial judge clearly been an issue during the course of the trial: see Reg v Solomon supra at 328. Even if no tactical disadvantage other than the inability to address the jury can be shown, that of itself can constitute significant prejudice: Robinson v The Queen supra at [146]. 175The relevant principles were summarised by Johnson J in Robinson v The Queen supra at [137]-[149]. I would respectfully adopt that summary. 176However, quite apart from r 4 of the Rules, the fact that no objection was taken to the direction can be of significance. In Sheen v The Queen supra Johnson J pointed out at [88] that the failure to raise objections at the close of the trial judge's summing-up is usually a reasonably reliable indicator of its fairness and adequacy: see also Chand v R [2011] NSWCCA 53 at [58]. 177It is important to remember that it was accepted by counsel for the appellant in the Court below that the suggestion that death could be caused by a push followed by a trip was not inconsistent with the Crown case. This was on the basis that it would still involve the appellant intending to kill the deceased. That concession seemed to be one which could properly be made. The critical issue is whether the jury could be satisfied that the appellant pushed the deceased intending to kill her and she fell to her death. The fact that she may have tripped prior to falling did not affect that position. 178The fact that the two persons who gave expert evidence did not directly address this issue does not in my opinion alter the position. Each of Associate Professor Cross and Mr Beck said that they could not determine whether the deceased fell as a result of a push or a trip. As a matter of logic it would follow that they could not exclude a push followed by a trip. At the risk of repetition it is helpful to set out again the particular direction given on this question, which I have set out in full in par 147 above: "...We know that she was close enough to the cliff edge so that she could be pushed over the edge or close enough, so that if she tripped, while facing down the slope, she was unable to recover her balance and she fell over the edge; or she was close enough so that a firm push towards the edge, followed by a trip, propelled her over the edge where her shoe impression was found. We know that she tried to save herself by grasping a nearby branch of a tree and that it broke in the attempt. You will appreciate that counsel in this trial have concentrated on one of two scenarios: Either Mrs Campbell was pushed; or she tripped. But I just want to remind you that they are not mutually exclusive. Even if the accused pushed Mrs Campbell towards the edge of the cliff so forcefully that she tripped as she was propelled forward and then was unable to recover her balance before going over the edge, that would nonetheless meet the legal requirements of murder, because the accused's act in pushing Mrs Campbell is a substantially contributing cause of her death." 179The appellant submitted that the introduction of the hypothesis of a push followed by a trip undermined the concessions made by Associate Professor Cross. It is difficult to see why that is the case. He said that a trip or push were the most likely scenarios. He also said, if the deceased tripped, in order to leave the footprint where it was found she needed to be walking at a moderate pace. Similarly, Mr Beck's estimations of the distance it would take for the deceased to recover from a trip were based on her walking a bit slower than four kilometres per hour (par [140] above). When asked if he agreed that four kilometres per hour was a reasonably brisk pace he answered "I'll take that". It is therefore difficult to see how, when the experts were agreed that for a trip to occur the deceased would have to have been walking at least at a moderate pace, the alternative scenario of a push followed by a trip in any way undermined such concessions that had been obtained in the cross-examination of Associate Professor Cross. 180In this context it must be remembered that the defence case was that what occurred was a tragic accident in which the appellant did not participate at all. The issue for the jury was whether they could be satisfied beyond reasonable doubt that what occurred was not such an accident. It was no part of the appellant's case at trial that he would not be guilty of murder even if the jury found he pushed the deceased. 181I have dealt with the question thus far without reference to her Honour's direction that the appellant was guilty of murder if the jury was satisfied beyond reasonable doubt that the appellant pushed the deceased with reckless indifference to her life. This different mental element was not raised with counsel. 182The first reference to the hypothesis that the deceased fell over the cliff as a result of a push followed by a trip is the direction which I have extracted at par 147 above. That direction was given quite independently of the mental element of the offence. It was consistent with what the trial judge had raised with counsel and did no more than suggest that even if the deceased was forcefully pushed before she tripped and fell over the edge, that would constitute murder provided that the requisite mental element on which the trial judge subsequently directed the jury was made out. 183In that part of the direction referred to in par 147 above her Honour, although referring to reckless indifference to human life, suggested to the jury that the real area of dispute concerned the first element; namely, was it the deliberate act of the accused which caused the fall or was it nothing more than a tragic accident? It can well be understood why her Honour said this; if the appellant intentionally pushed the deceased over a 50 metre cliff it would be impossible to draw any inference other than that he intended to kill her. 184The principal direction in relation to reckless indifference to human life is to be found in that portion of the direction to which I have referred in par 147. Her Honour explained that for that mental element to be established the jury had to be satisfied beyond reasonable doubt that the appellant was aware that death was a probable consequence or likely result of his conduct. Immediately after giving this direction she emphasised that the Crown's allegation was that the accused deliberately pushed the deceased from the edge of the cliff. 185This review of the directions made by the trial judge shows that her Honour did not directly link the push and trip hypothesis to the mental element of reckless indifference to human life. Equally, by adverting to a different hypothesis as to what occurred (albeit without objection from counsel when it was raised) and an alternative mental element, the trial judge did invite the jury to consider the Crown case on a different basis to that in which the case was opened and conducted. 186The issue remains whether leaving the case to the jury on that basis constituted a miscarriage of justice. I have already indicated why I consider the hypothesis of the push and trip, taken alone, did not constitute such a miscarriage. Further, for the reasons set out hereunder I do not consider that the introduction of the mental element of reckless indifference to human life, whether alone or in conjunction with the push and trip hypothesis, led to such a miscarriage occurring. 187I accept that it would have been preferable for the trial judge not to have raised the mental element of reckless indifference to human life. This is for three reasons. First, it formed no part of the Crown case. The Crown case was based essentially on the proposition that the appellant had a motive for killing the deceased, took the deceased to the campsite with the intention of killing her and did so. The suggestion that he pushed her realising that death was the probable consequence or likely result whilst not intending to kill her sits uneasily with that case. Second, it had the potential of inviting the jury to speculate on a mental element for which there was no real basis in the evidence. Third, it was raised without reference to counsel for the appellant, much less with any discussion as to the evidence which would suggest that the accused had that mental element. 188However, the following matters demonstrate in my view that notwithstanding the factors referred to in the preceding paragraph, there was no miscarriage of justice in this case. 189First, whatever be the mental element, there was no suggestion the appellant could be found guilty of murder absent a finding beyond reasonable doubt that the appellant pushed her towards the cliff and she fell as a consequence. The physical element was the same irrespective of the mental element. 190Second, and aligned to the first reason, the appellant did not advance a case that he pushed the deceased not intending to kill her. If that was the appellant's case there would be real injustice by raising reckless indifference to human life at the conclusion of the trial, even if only by reason of the fact that counsel did not have the opportunity to address on the issue. By contrast, the appellant's case was that he did not push the deceased and was not involved in her death at all. The case was fought on the basis that if the deceased was pushed and the push caused her death, that would constitute murder. The manner the trial judge summarised the position in the last paragraphs of those portions of the direction to which I have referred in par 147 and (c) above, accurately summarised how the case was conducted. 191Third, what I have said in the preceding paragraph is not affected by the hypothesis that the deceased tripped after she was pushed. That was accepted in the interchange with counsel, which I have referred to in par [145] above. 192Fourth, although the addition of the alternative mental element did raise the possibility of the jury speculating rather than reaching a decision on the basis of the evidence, that possibility was remote in the present case. Once the jury determined the deceased was pushed deliberately towards the cliff, there would be little room for speculation as to the intention of the appellant in doing so. The jury could only reach the conclusion of a deliberate push on the basis of the circumstantial evidence tendered by the Crown, which either supported the conclusion beyond reasonable doubt that the appellant intended to kill the deceased or it did not. It did not lend any support to the conclusion of a push with reckless indifference to the life of the deceased. 193Fifth, I am fortified in this conclusion by the fact that counsel for the appellant at the trial raised no objection to the direction. 194For these reasons I am not satisfied that the addition in the directions of the push and trip hypothesis and the mental element of reckless indifference to human life, whether considered alone or in conjunction with each other, gave rise to a miscarriage of justice. 195It follows that this ground of appeal is not made out. 196Since writing the above I have had the advantage of reading in draft the judgment of Simpson J. I agree that ground 1 should be dismissed for the additional reasons given by her honour.

[23]

Ground 3 "The Trial Judge erred in admitting the evidence of Associate Professor Cross over objection." 197To understand the submissions on this ground it is necessary to have some regard to the course of evidence of Associate Professor Cross and the approach taken to its admissibility. 198Associate Professor Cross produced a revised report dated 12 March 2010 outlining the evidence he would seek to give if called at the trial. This report, along with the curriculum vitae of Associate Professor Cross, was tendered on a voir dire which commenced on 8 April 2010. 199The evidence of Associate Professor Cross was objected to on the basis it fell outside his area of specialised knowledge. 200Associate Professor Cross gave evidence on the voir dire that he obtained his Doctorate of Philosophy in the field of plasma physics, being the subject of a fourth state of matter, which consists of very high temperature gas. 201Associate Professor Cross gave evidence that he had been involved in the investigation of a number of falling incidents with the NSW Police Force and the Coroner. 202Associate Professor Cross was asked about a portion of his report and his explanation of what he described as a normal reaction force. He said he was dealing with principles of physics or biomechanics. 203Associate Professor Cross was cross-examined on the voir dire on his expertise in biomechanics. He said that in conjunction with Professor Nathan he had studied the swing speed of baseball bats by studying groups of baseball players to see how far they swung a baseball bat using standard biomechanical techniques. 204During the course of cross-examination on the voir dire, the trial judge made the following comment: 'HER HONOUR: I don't think you can go so far as to say he's not qualified. I mean, he's qualified in the sense that he has relevant academic qualifications in that area. He might be criticised, and I don't have a view about it one way or the other, but he might be criticised, I suppose, for placing undue reliance upon the context within which he's given opinions in the past. Well, that's fair enough, but that doesn't go to his expertise. I'm concerned with whether or not he has the relevant expertise to express the opinions he expresses in this case. I'm not concerned with their weight because their weight is a matter for the jury." 205However, cross-examination on his qualifications continued. Subsequently the following exchange took place between the trial judge and counsel for the appellant at the trial: "HER HONOUR: Can we just deal with basics? Do you say that Professor Cross does not hold specialised knowledge based on his training, study or experience which brings him within section 79 of the Evidence Act? HUGHES: I do. There's no evidence. There's certainly evidence that he's highly qualified in physics, but as to the application of the human movement to physics relevantly as opposed to the use of sporting equipment, for example, there's not demonstrated in the material before your Honour or his evidence in my submission evidence which demonstrates that he has the requisite qualifications or experience or training to give an opinion as to the likelihood of persons landing in a particular way given particular circumstances. It's just not there. HER HONOUR: Can I just say this is I think something that has to be carefully distinguished. You may want to say something about the discretion to admit the evidence if the jury would misuse it or would place undue weight upon it and that the weight would be unjustified given certain gaps in the way that he's carried out the experiments, or that there is some underlying, if you like, shortcomings such as difference in the surface of the ground where the experiments were carried out as compared to the surface of the cliff and the failure to consider the possibility of a trip, things that might compromise the opinion to the extent that we would be placing undue weight upon it. That's one thing, but section 79 only talks about the person having specialised knowledge based on his training, study or experience. It focuses solely upon whether or not the person has relevant qualifications. As things presently stand I would think that Professor Cross has the qualifications and he certainly had some experience in matters of this nature but I am just wondering why you say that would be outside the scope of the exception provided by section 79. You see his qualifications are one thing - his specialised knowledge is one thing and whether or not his opinion can stand up to scrutiny is another. HUGHES: I understand what your Honour says. The evidence is that he's given evidence with respect to - or to quote from page 1 - investigated about 20 such cases. That is a reference to falling incidents. But the manner in which that was done we're none the wiser. The competence with which that was done we're none the wiser, nor the expertise to carry out those investigations competently. HER HONOUR: Well, I mean, he has written at least two articles that have been published in journals of forensic science, which means he's been subject to a degree of peer review which fall directly - which come directly within the scope of the facts of that case, namely fatal falls from a height, two case studies and falls from a height in the American Journal of Physics. So, when you put that together with his general academic qualifications, it's hard to maintain that he doesn't have relevant specialised knowledge. HUGHES: I don't think I can take that any further." 206Thereafter, a discussion took place between the trial judge and the prosecutor concerning the admissibility of certain experiments carried out by Associate Professor Cross and whether his evidence was in fact based on any particular field of expertise: "HER HONOUR : But in a sense that is part of the seductive quality of getting someone who says 'I am an expert in biomechanics' to express a view about the way in which the deceased left the cliff edge. I don't have a problem with the expression of opinion insofar as one can say, as the Professor says, a 26 degree slope has to be compared with things like a maximum 12 degree slope and a travelator, so that the jury has some way of relating their own common experience of the world with the kind of conditions under which one can be found standing on a 26 degree slope and indeed the video where Detective Moon, was it, who was standing in that spot and Detective Moon's statement in and of itself I would have thought would demonstrate to the jury the precarious nature of someone standing on a slope of that nature and the likelihood that, unless you're restrained in some way, you're going to lose your balance and tip over the edge. I don't - I don't really see that Professor Cross doesn't have the requisite knowledge or expertise and I think that the evidence has to be relevant because relevance is, as I said, a fairly broad test, particularly in the circumstances of the case. But what does concern me though is that this is one of those areas where in some respects the jury could reach all of these conclusions from their own experience and knowledge of the world after they have been presented with the primary facts without the expression of an expert opinion by someone who says: In my view she was pushed. And, if that's right, then the introduction of that opinion does invest that evidence with more weight than it properly deserves. CROWN PROSECUTOR: It's still open to be tested without Professor Cross. Professor Cross is an ad hoc expert on 26 degree slope. The testing that he has conducted in relation to a 26 degree slope, his ability to explain to the jury the forward momentum and the relative positions, if I can put it as neutrally as that, and it is explained as a foot is where the human comes forward because of the relative positions between the slope and the perpendicular of the slope. Those aren't areas that will be within a jury's knowledge. HER HONOUR: I don't understand Mr Hughes to even challenge that aspect of his expertise. That's the point. He can given evidence of, or - and Mr Hughes might correct me if I am wrong - but Professor Cross could give evidence of all of those things; the slope, the difficulty that a person would have maintaining balance on a slope of that nature, and you can give him the various factual assumptions that underpin that, ie her height, her weight, the type of surface, the type of shoes that she was wearing. All of that can be factored into the equation. The jury can see for themselves that Detective Moon is not so confident that he wouldn't be secured by a harness in the event that he gets too close to the edge. They can see all of that. I don't understand Professor Cross's expertise to be in doubt in relation to those matters. The vice, if you like, creeps in once you try and draw some meaningful comparison between the tests he conducted on a one-off occasion with a female subject in an unrelated terrain and then draws conclusions from that to express the ultimate opinion that he does in relation to the deceased being pushed. I haven't formed a concluded view about it. It might just get over the line; it might not." 207On 22 April 2010 the trial judge delivered judgment on the admissibility of the evidence of Associate Professor Cross. She pointed out that she had already ruled that Associate Professor Cross was appropriately qualified and that there was a relevant factual basis underlying most of the evidence he proposed to give. Her conclusion was in the following terms: "[6] In my view, Professor Cross is relevantly qualified to explain to the jury the biomechanics involved in each of these scenarios, in the following respects :- (i) a slope of approximately 26° conforms with the common slope for a tiled roof. It may be contrasted with a slope of 10 or 12°, being the slope typical of a travelator, which has the additional safety feature of a moving handrail. (ii) standing on one foot on a 26° slope would be extremely unstable in normal circumstances. (iii) the impression of the shoe at the cliff edge is consistent with a person in an upright position, applying vertical force to the ground. (iv) it takes approximately .6 of a second for a person to fall from a vertical position to a horizontal one, assuming the application of force from behind, and assuming a normal reaction time of .2 of a second. (v) a trip presupposes that the person is in motion. [7] Having established the matters (i) to (v) above, and taking into account the physical features of the site that are established by other evidence in the trial, Professor Cross may express an opinion with respect to the various ways in which the shoeprint could have been left in the position where it was found. I would not allow reference to the experiment conducted by Professor Cross in the course of that opinion."

[24]

(a) The appellant 208The appellant submitted that the following portions of the evidence of Associate Professor Cross in examination in chief were not based on the witness's specialised knowledge and experience and were outside his expertise in plasma physics: "That, from the pattern of the shoe print and the breaking of the branches the deceased was upright, or in a straight position when she went over the cliff. He could exclude the deceased standing and looking at the view because this would have been unstable and he would expect two footprints not one. He could exclude suicide on the basis that 'there were tree branches directly in front of her'. Most people can't cartwheel. The footprint could not be explained by having been left when a person was sitting on one of the rocks close to the print which, whilst notionally possible, had 'one problem' and that is 'a person sitting down cannot reach one metre with their foot while they're sitting down'. He could exclude the deceased slipping because he would have expected more damage to the surrounding vegetation and he would not have expected a 'a clear stationary shoe print'. After giving a demonstration in court before the jury of a person tripping over a book he could exclude the deceased tripping on one of the rocks at the scene because to explain the shoe print the deceased would have had to have been moving, before the trip, 'at a medium to fast place' and this would have been perilous. Tripping on a shoe lace could be excluded because the deceased would have fallen on her face and this was inconsistent with the shoe print. If the deceased was pushed he could envisage the second step leaving the print as it was found." (References omitted). 209Counsel for the appellant contended that the first critical piece of Associate Professor Cross's evidence was that the deceased was upright at the time the footprint was made. She submitted the inference was that this was inconsistent with a trip. She submitted that the defence was further undermined by Associate Professor Cross's evidence on what she described as the second critical matter; that if the fall was caused by an accidental trip, the deceased would have to be walking at a brisk or moderate pace. Although she acknowledged he subsequently said he could not come to a view about the speed necessary to bring that about without further experiments. 210Counsel for the appellant submitted that Associate Professor Cross did not have the relevant expertise to comment on any of the matters referred to in par [6] of the judgment of the primary judge (see par [207] above). She submitted further that his evidence was based on simulation experiments which the trial judge in fact had disallowed. She acknowledged that it may have been possible to reach the conclusion that the deceased was standing upright at the point of the shoe print. However she submitted this was undermined by the evidence of Mr Beck, that the footprint was consistent with accidental tripping and that the deceased could have left the footprint in a forward position consistent with an accidental trip. 211Counsel for the appellant submitted that it was incorrect to suggest that there was no real difference between the conclusions reached by each of the experts. She submitted that if the evidence of Associate Professor Cross, to the effect that the deceased was standing upright at the part of the cliff where the footprint appeared, was accepted it would be irresistible commonsense that the deceased had not tripped. 212Counsel for the appellant submitted the trial judge had shut down cross-examination on the voir dire on the qualifications of Associate Professor Cross. 213Counsel for the appellant accepted that it was possible for an opinion to be based on experience as distinct from specialised knowledge but submitted there was insufficient evidence to conclude that Associate Professor Cross had the requisite degree of experience to give the evidence he was permitted to give. 214Counsel for the appellant submitted that a number of the opinions expressed by Associate Professor Cross were not based on specialised knowledge in biomechanics. She also submitted that evidence as to the pace a person would have to walk before tripping was based on biomechanics. She submitted this evidence was critical to the preference Associate Professor Cross had to a push as distinct from a trip, because a person would not walk at the requisite pace at that part of the cliff to allow such a trip to occur.

[25]

(b) The Crown 215The Crown submitted that counsel for the appellant at the trial withdrew the objection to the evidence, referring to his comments "I don't think I can take that any further" at the conclusion of the interchange I have extracted in par [205]. I do not agree. Simply saying in effect I have no further submissions to make does not constitute a withdrawal of the objection. 216The Crown submitted that the appellant's submission ignored the extent to which normal rules of physics applied to the topics upon which the trial judge indicated that Associate Professor Cross was qualified to give evidence. It was submitted that the experience of Associate Professor Cross in "the physics and biomechanics of fatal falls" qualified him to give the evidence he was permitted to give. 217The Crown submitted the evidence of Associate Professor Cross was in any event not of particular significance, as his evidence was consistent with the deceased either having been tripped or pushed. 218The Crown contrasted this case with the decision of this Court in Wood v The Queen [2012] NSWCCA 21; (2012) 84 NSWLR 581 where the evidence of Associate Professor Cross was strongly criticised. It was submitted that in the latter case Associate Professor Cross gave opinion evidence about very complex factual questions. It was submitted that, unlike the present case, his lack of formal training in biomechanics was significant in considering his qualification to give the evidence adduced in Wood v The Queen. 219Senior counsel for the Crown submitted that the better criticism to be levelled at the evidence of Associate Professor Cross was that it was based on matters within the realm of common experience; namely, there was no evidence of slipping and there were broken branches at chest height consistent with the deceased standing at the time the footprint was made. However, she submitted that the movement of the human body is a study of physics. She submitted that Associate Professor Cross' expertise could be shown, not only from his professional qualifications but from the experience he had gained since 1997. This was in reference to the publications noted in his curriculum vitae and to the fact he had been retained to advise on 20 fatal falls by the Coroner and the NSW Police Service.

[26]

Consideration 220Section 79(1) of the Evidence Act 1995 (NSW) is in the following terms: "79(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." 221In the present case two issues arise. First, did Associate Professor Cross have the requisite specialist knowledge to give the evidence elicited from him? Second, was his opinion wholly or substantially based on such specialised knowledge? 222It is convenient to deal with the second issue first. At common law evidence from an expert was not admissible if it was no more than an attempt to guide the jury on matters which it was within their capacity to determine for themselves: Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486 at 492. The reason for so confining the evidence as explained by Gleeson CJ in HG v The Queen [1999] HCA 2; (1999) 197 CLR 414 at [44], is that experts who venture opinions outside their field of specialist knowledge may invest such opinions with a spurious appearance of authority and the legitimate process of fact-finding may be subverted. 223That proposition requires some qualification in light of the provisions of s 80(b) of the Evidence Act, which provides that evidence of a person is not inadmissible only because it is about a matter of common knowledge. In Velevski v The Queen [2002] HCA 4; (2002) 76 ALJR 402 Gaudron J explained the operation of the section as follows at [82]: "[82] The concept of 'specialised knowledge' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which 'is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience'. So to say, however, is not to say that an expert witness cannot have regard to matters that are within the knowledge of ordinary persons in formulating his or her opinion. So much is expressly acknowledged by s 80(b) of the Evidence Act." (Citations omitted). Whilst Gummow and Callinan JJ made the following remarks at 158: "[158] Nothing in s 79 of the Evidence Act 1995 (NSW) (the Act), stands in the way of the reception of expert evidence of this kind. 'Training, study or experience', the words used in the section, necessarily include, as they must in all areas of expertise, observations and knowledge of everyday affairs and events, and departures from them. It will frequently be impossible to divorce entirely these observations and that knowledge from the body of purely specialised knowledge upon which an expert's opinion depends. It is the added ingredient of specialised knowledge to the expert's body of general knowledge that equips the expert to give his or her opinion. Section 80(b) of the Act is to no different an effect." (Citations omitted). 224The effect of the section was considered by the Full Court of the Federal Court in Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70; (2007) 159 FCR 397. In that case Black CJ, Emmett and Middleton JJ without reference to either HG v The Queen supra or Velevski v The Queen supra made the following remarks as to the effect of s 80 on the common law rule: "[54] Such an approach appears to ignore the language of ss 79 and 80 of the Evidence Act. Certainly, opinion evidence will not be admissible unless the opinion is based on specialised knowledge and that specialised knowledge is in turn based on the opinion holder's training, study or experience. However, the former rule of the common law that excluded opinion evidence as to a matter of common knowledge no longer applies. Under s 80, evidence of an opinion is not inadmissible only because it is a matter of common knowledge. [55] Clearly enough, if the matter about which expert evidence is to be given is patent and known to all, the Court's time would normally be wasted by such evidence. Section 135 may be called in aid in those circumstances. Nevertheless, the evidence may still be strictly admissible. Further, an expert may still be of assistance to the Court, even in an area about which most people know something. So long as s 79 is satisfied, and the opinion evidence is based on specialised knowledge and that specialised knowledge is based on training, study or experience, that opinion evidence will be admissible, whether or not it might then be excluded in the exercise of the discretion conferred by s 135 (see generally the Law Reform Commission, Interim Report on Evidence, Canberra (1985), paragraph 43)." 225I doubt that s 80(b) of the Evidence Act goes so far as to make admissible opinion evidence said to be based on specialised knowledge, training or experience which in truth is evidence, which to adopt the expression used in the Full Federal Court "is patent and known to all". Such evidence as a matter of logic would not be based on specialised skill and knowledge. The effect of this section in my opinion is as explained by Gaudron J and by Gummow and Callinan JJ in Velevski v The Queen supra. The section makes it clear that in arriving at his or her opinion based on specialised knowledge, training or experience there can be no objection to an expert relying on matters generally known, or as Gummow and Callinan JJ described at [158], "knowledge of everyday affairs events and departures from them". In that way ss 79 and 80(b) of the Evidence Act can be read harmoniously. 226The evidence that Associate Professor Cross was held to be entitled to give is set out in the paragraphs of the judgment of the trial judge extracted in par [207] above. The matters referred to in subpars 6, 6 and 6 of that judgment seem to me to be matters of commonsense and not based on any field of expertise, in particular not biomechanics. Similarly the proposed evidence referred to in subpar 6 seems to me to be a matter of basic arithmetic based on the assumed normal reaction time. 227However, the matters referred to in subpar 6 of the judgment of the trial judge, namely, that the impression of the shoe was consistent with a person in an upright position and the evidence which the trial judge said Associate Professor Cross was entitled to give in par [7] of the judgment, would in my opinion be based on specialised knowledge of biomechanics, or perhaps more accurately biomedical engineering. The unchallenged evidence of Mr Beck was that this discipline involved the application of the anatomy and physiology of the human body to a specific field of engineering. Further, that it was possible to apply biomedical knowledge with mechanical knowledge (in Mr Beck's case from his qualifications as a mechanical engineer) to understand the movement of the human body in terms of its movement and reactions. The opinions on the matters referred to in subpar 6 and par [7] are opinions which a person qualified in such a field would be entitled to express. 228Similarly, although much of the evidence given by Associate Professor Cross referred to in par [207] could be derived from common experience, his conclusion that the deceased was upright and to have tripped would have had to have been walking at a moderate to fast pace, would seem to be based on specialised knowledge in the field of biomechanics. It follows that if Associate Professor Cross had appropriate knowledge in that field, he would be entitled to give the evidence he gave based on such expertise. The fact that his process of reasoning involved the expression of opinions on matters which could be said to be matters of common knowledge did not render his evidence inadmissible. 229The question remains whether Associate Professor Cross had the relevant expertise to give that evidence. It does not seem to me that his formal qualifications in physics or his particular field of study (plasma physics), qualified him to give this evidence involving an understanding of the mechanics of the human body in terms of movement and reactions. 230Associate Professor Cross did not seem to suggest that his formal qualifications gave him that expertise. Rather reliance was placed on his study and experience. 231It was necessary in those circumstances for the Crown to demonstrate that the study undertaken by Associate Professor Cross and the experience gained by him, qualified him to give the evidence in question: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] and Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [32] and [37]. In my opinion the evidence tendered did not establish that Associate Professor Cross had acquired such specialised knowledge. His report stated that he investigated 20 cases for the NSW Police Force or Coroner, including the death of Caroline Byrne (the subject of the appeal in Wood v The Queen supra). However, it said nothing of what he did in these investigations or how they equipped him to give evidence in the present case. 232Associate Professor Cross's curriculum vitae listed a number of publications concerned with, what he described in the report tendered on the voir dire, the physics of sport. However, none of the publications were tendered and on their face they do not show specialised knowledge in biomechanics such as to enable him to express the opinion given by him. 233There are three exceptions. Associate Professor Cross's curriculum vitae refers to the book written by Associate Professor Cross, "Evidence for Murder How physics convicted a killer" (the Book) and two articles ("Fatal falls from a height: two case studies" and "Falls from a height"). None of these were tendered and the fact that he published the Book and two articles with those titles cannot lead to the conclusion he was appropriately qualified to give the evidence led from him. With respect to the views of the trial judge expressed in argument (see par [205] above), I do not accept that two articles concerning fatal falls from a height which were peer reviewed coupled with qualifications in physics, without more, qualified him to give the evidence. 234Neither the evidence given by Associate Professor Cross on the voir dire (see pars [198]-[203] above) or his evidence in chief (see par [120]-[132]) were in my opinion sufficient to establish he had the requisite skill and experience to give the evidence he in fact gave. His evidence did not provide any details of the consulting work so as to show he had the requisite knowledge and experience to give the evidence". 235It follows that this ground of appeal has been made out.

[28]

(a) The appellant 236The fresh evidence relied upon in the written submissions was the publication of the Book, together with the conclusion of McClellan CJ at CL in Wood v The Queen supra at [730] (that the Book had the consequence that any evidence Associate Professor Cross gave on controversial matters had minimal if any weight). It should be noted that earlier in his judgment McClellan CJ at CL made the following remarks concerning the qualifications of Associate Professor Cross (not reproduced in the NSW Law Reports' reporting of Wood v The Queen): "[467] To my mind A/Prof Cross was allowed, without objection, to express opinions outside his field of specialized knowledge. [468] It was submitted to this court that at the very least A/Prof Cross' lack of expertise in these areas diminished the weight that could reasonably be attributed to his evidence. A/Prof Cross' qualifications are in physics and his primary area of expertise is plasma physics. He has spent some time since his retirement assisting the police in the investigation of incidents of persons falling and has published alone, or with others, some papers concerned with the physics of sport. In the course of these tasks he has applied his knowledge of basic physics. He has no qualifications or experience in biomechanics." 237Counsel for the appellant submitted that the relevance of the decision in Wood v The Queen supra was that one of the bases on which the witness purported to establish his expertise in fatal falls, was his contribution to the investigation in the trial the subject of appeal in Wood v The Queen, which had been discredited. She accepted that the existence of the Book could have been discovered by due diligence at the time of the trial but said that the critical point was the opinion expressed by this Court in Wood v The Queen. She submitted that the material would have been relevant to cross-examine Associate Professor Cross. Senior counsel for the Crown conceded such material would be relevant on the voir dire as to the admissibility of the evidence of Associate Professor Cross and to test his evidence in cross-examination, if it was in fact admitted.

[29]

(b) The Crown 238The Crown submitted that the Book was not fresh evidence as it existed at the time of the trial and it could have been discovered by the exercise of reasonable diligence. As I have indicated this was accepted by the appellant. 239The Crown submitted in those circumstances the overriding question was whether there was a miscarriage of justice. It was submitted that the Book and the criticism made against Associate Professor Cross in Wood v The Queen supra was focused on his investigation in the trial the subject of that appeal. 240The Crown submitted that the trial judge only shut down the cross-examination on the expert code of conduct on the basis the witnesses' understanding of the code was not relevant to the admissibility of his opinion evidence but only to its weight. It submitted this was consistent with what was said in Wood v The Queen supra at [728]-[729]. The Crown emphasised that the opinion of Associate Professor Cross was ultimately neutral due to his inability to conclude whether the deceased was pushed or tripped. 241The Crown also submitted that if the trial judge erred in admitting the evidence there was no miscarriage of justice. It was emphasised that Wood v The Queen supra was not authority for the proposition that in any case where the evidence of Associate Professor Cross was admitted there was a miscarriage of justice. 242The Crown submitted that the evidence of Associate Professor Cross was neither significant nor particularly contentious. Reference was made to the submission of counsel for the appellant at the trial when he said "Ultimately, that evidence ... is alarmingly in agreement ... But, ultimately, as her Honour said to you, they can only give so much assistance ... much of this is simply commonsense. There is no great science in tripping, it is something we have all done". 243The Crown also referred to the direction to the jury on this issue: "At the end of the day, despite what Mr Beck probably initially maintained in his report, both Professor Cross and Mr Beck concluded that the physical signs from the site and their knowledge of biomechanics and their knowledge of the deceased was consistent with either her being pushed or the fact that she tripped and they are not able, really, to determine which of those two is, in fact, the case. They might want to express an opinion about which of those two explanations they prefer, but it is not their preference that is in issue, ladies and gentlemen; it is a question of what conclusion you draw from the evidence." 244Senior counsel for the Crown emphasised that in the present case Associate Professor Cross did not conduct the same experiments as those conducted by him in Wood v The Queen supra. She submitted that the flaws in his evidence in Wood v The Queen did not relate to the relevantly straightforward matters he was considering in the present case.

[30]

Consideration 245Having regard to my conclusion on Ground 3, this ground can be dealt with shortly. 246As I indicated the written submissions relied on the Book as fresh evidence. Not only could the Book have been discovered by reasonable diligence, it was referred to in the curriculum vitae of Associate Professor Cross. For the evidence to be admitted on the appeal it would thus be necessary to demonstrate there would otherwise be a miscarriage of justice: Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 402 and Peter Mickleberg v The Queen [1989] HCA 35; (1989) 167 CLR 259 at 301. The principles were summarised by Kirby J in R v Abou-Chabake [2004] NSWCCA 356; (2004) 149 A Crim R 417 at [63] (Mason P and Levine J agreeing) and it is unnecessary to repeat them. 247In the present case there was no miscarriage of justice. The evidence of Associate Professor Cross did not explicitly express a preference for a push or trip scenario, conceding that either was a possibility. The only difference with Mr Beck's evidence was that Associate Professor Cross understood Mr Beck to express a preference. However, each of Associate Professor Cross and Mr Beck ultimately agreed that to trip the deceased would have to have been walking at a moderate pace (see pars [125] and [179] above). The only real difference between the evidence of the experts was that Associate Professor Cross said that the deceased was upright at the time the footprint was made whilst Mr Beck said she was slightly, to well, forward. The directions to the jury (see par [243]) recognised the inconclusive nature of the evidence as did the comment of counsel for the appellant in the Court below to the effect that the experts were largely in agreement (see par [242] above). 248The appellant also sought to rely on the decision of this Court in Wood v The Queen supra in demonstrating that Associate Professor Cross lacked the necessary expertise to give the evidence. It did not seem to be suggested that the material relied upon by the Court of Criminal Appeal in Wood v The Queen, in reaching its conclusion concerning the evidence of Associate Professor Cross, was not available to the appellant in the present case or could not have been available with the exercise of reasonable diligence. I have already indicated why I am of the opinion that the admission of the evidence did not constitute a miscarriage of justice. So far as the decision itself in Wood v The Queen is concerned, I agree with Simpson J that the decision was irrelevant to the admissibility of the evidence of Associate Professor Cross. 249It follows that this ground of appeal has not been made out.

[31]

Ground 5 "The Trial Judge erred in her directions attaching to the evidence of June Ingham as constituting motive and tendency." 250The directions the subject of this ground of appeal were as follows: "The second category of evidence, if I could call it that, is the evidence as to motive. Could I indicate, ladies and gentlemen, that there is no requirement on the Crown to prove motive beyond reasonable doubt. Motive for the commission of a crime is not an element of the crime. It is something which can be taken into account if it exists towards the proof of guilt of the accused, but even if the Crown were unable to establish or suggest a motive, it would make no difference to the Crown case. It is just another piece of evidence or another plank of the evidence that the Crown relies upon in this particular trial. The Crown's submission is that the accused's motive, in conducting a relationship and marrying the deceased, was purely financial and the evidence relied upon, in order to support that conclusion, is the following ... ... Now, the Crown asks you to draw an inference from June Ingham's evidence which is this inference: That that experience with June Ingham taught the accused a lesson; that lesson was that he needed to ensure that his financial gains could not be taken away at the end of a relationship. I will have more to say about June Ingham's evidence shortly because there is this other category of evidence that her evidence falls into, but it is a matter for you whether you draw that inference, ladies and gentlemen, but it is an inference, the Crown says, you would draw from June Ingham's evidence. It is a combination of all that evidence I have outlined in this account that the Crown asks you to use towards the inference that the accused's motive in wishing to, not just end his relationship with Janet Campbell, but to kill her, was entirely a financial one. ... Let me come to the evidence of June Ingham on the question of tendency. You will recall that I gave you that direction at the time Ms Ingham was about to given [sic] evidence. I am going to repeat that direction now so you appreciate the use to which you are permitted to put that evidence. The evidence is before you because the Crown says that there is a pattern of behaviour, if one looks at the relationship with Ms Ingham and compares it with the relationship with Ms Campbell, and that pattern of behaviour may reveal that the accused has a tendency to act in a particular way, namely, to enter relationships with middle aged, single women with the intention of obtaining money from them to purchase property in his own name, whether that be his own name or jointly with Ms Campbell, without the intention of returning the money or allowing them to enjoy the long term benefit or use of the property but, rather, to appropriate that money and/or the property for his own use. Now, the evidence of the accused acting in this way can only be used in the way the Crown asks you to if you are firstly, satisfied of that evidence beyond reasonable doubt. So you have to accept Ms Ingham's evidence beyond reasonable doubt if you are to use the evidence in that particular way. You do not have to be satisfied of her evidence beyond reasonable doubt if you want to use it towards the issue of motive but you do have to be satisfied beyond reasonable doubt if you want to use it in this particular way. So if you are satisfied beyond reasonable doubt, you may consider the evidence for the limited purpose of determining whether the accused acted in the same way with the same intention towards Janet Campbell. The evidence must not be used in any other way other than, as I said, if you were satisfied that it was capable of establishing motive. It would, however, be completely wrong to reason that just because the accused betrayed June Ingham and appropriated a good deal of her money, he is, therefore, generally a person of bad character and for that reason he must have committed murder; that is not a valid processes [sic] of reasoning. I am not going to go over Ms Ingham's evidence again but the Crown relies upon a number of features of the accused's dealings with Ms Ingham that were repeated or mirrored in his relationship with Janet Campbell. They are that they were both middle aged single women with money, certainly with more money than the accused had; that the accused expressed his desire that the house that they purchased in each case was in his name; that the property was purchased with money provided by those women; that there was money transferred into the accused's account for the purchase of the property and that there was money remaining in the accused's account from the purchase of the property which was used by the accused to buy various consumer items or pay off debts; that the accused promised in each case to change his will so that Miss Ingham and Ms Campbell would not be disadvantaged; that they would each receive the benefit of his estate and lastly, that in each case the accused received the benefit of refunded stamp duty from the Ambulance Service because of the purchase of the property, either partly or solely in his name. Remember, as I said before, that the evidence of Mr Drummond and Mr Grant about the accused telling Janet Campbell that he would change his will, that is hearsay evidence but of course he did make that direct statement to Ms Ingham. So, ultimately, as I said, if you accept the evidence of June Ingham beyond reasonable doubt, the Crown submission is that you would have no difficulty concluding that the accused began his relationship with Janet Campbell with the same goals in mind, that is, that the accused never intended to have a long-term genuine relationship with her. Even if you reach that conclusion, it does not allow you, without more, to also conclude beyond reasonable doubt that the accused killed Janet Campbell. It is but one of the building blocks in the Crown case. So in summary, let me just explain what conclusion or inference the Crown asks you to draw from that combination of evidence that is referred to under the category of motive and tendency. The Crown asks you to conclude that the accused was in the relationship with Janet Campbell for no other purpose but financial gain, consistent with his relationship with June Ingham and that the prospect that Janet Campbell would be able to regain the majority of her money from the accused, if there were divorce proceedings, provided the accused with a motive to murder her. Once again, whether you draw that inference or conclusion, is a matter for you, but that is the inference or conclusion that the Crown says is supported by that body of evidence."

[35]

The proviso 260The question which remains is whether notwithstanding the appellant's success on Ground 3, it is an appropriate case to apply the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) (the proviso). 261The error in question was not of such a nature as to render the application of the proviso inapplicable. The error could not be described as radical. Nor, for the reasons for which I have given, did it give rise to such a miscarriage of justice as to render consideration of the proviso inapplicable: AK v Western Australia [2008] HCA 8; (2008) 232 CLR 438 at [54], Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at [21]-[24] and Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531 at [126]-[127]. 262In these circumstances for the proviso to apply it is necessary for the Court to be satisfied beyond reasonable doubt that evidence properly admitted at the trial proved the guilt of the accused: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [44], Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593 at [226], Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521 at [41]-[42] and AK v Western Australia supra at [53]. In considering the matter the Court is performing essentially the same function as when deciding whether a jury verdict should be set aside as unreasonable: Weiss v The Queen at [41], Festa v The Queen at [123] and Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 at [84]. 263I have set out the evidence at the trial above. Based on that evidence, excluding the evidence of Associate Professor Cross, I am satisfied beyond reasonable doubt that the appellant murdered the deceased by deliberately pushing her over the cliff. 264Without repeating the evidence my reasons for this conclusion are as follows. 265First, the preponderance of the evidence indicates that the appellant had little or no affection for the deceased. He told his brother the deceased was harassing him and described her to both his brother and his brother's wife as ugly or filthy rich (see par [12] above). He described her in similar derogatory terms to Mr Colin Sanders and Mr Robert Crampton. 266Second, consistent with his apparent lack of affection for the deceased he did not make the fact of his marriage generally known but rather took steps to conceal it. He denied any relationship to Mr Crampton (par [14]). Although the deceased received a wedding present purporting to come from the appellant's parents, the evidence was that they had neither met the deceased nor spoken to her or ever given her a present (par [17]). The appellant did not tell his brother or his wife that he had married when they visited him at the Otford residence after Christmas 2004 (par [21]). At that time Ms Velicanski was staying with the appellant at that residence (par [21]-[22]). Ms Velicanski gave evidence that the appellant told her that he had bought a property at Otford and asked her to stay with him (par [63]). She gave evidence that after she was asked by a neighbour if she was Janet she asked the appellant who Janet was and was told that she was a friend of his who came with her boyfriend to look at the house (par [64]). 267Third, although on a number of occasions the appellant exhibited some signs of grief and trauma as a result of the death of the deceased (see pars [91]-[94], [100], [101] and [105]) his activities in the days following her death were inconsistent with someone who had lost a recently married partner in a tragic accident. Five days after the accident occurred he made inquiries about travelling with Ms Velicanski, "his wife", to Townsville (pars [102]-[103]), a trip which occurred between 1 and 4 April 2005 (pars [106]-[107]). On 5 April following a fight with Ms Velicanski the appellant activated his RSVP account and communicated with other accounts (par [108]). Ms Velicanski subsequently stayed at the Otford house for some weeks, the appellant telling her he was not married and that if asked by the police she should tell them she did not know him (par [110]). 268The appellant did not attend the deceased's funeral (par [109]). After his relationship with Ms Velicanski terminated in mid-May 2005, the appellant spent two nights with Ms Rodgers at the Airport Hilton. Ms Rodgers' evidence was that he never mentioned a wife, buying a house at Otford or someone close to him having died (par [114]). 269Fourth, the appellant had obtained substantial financial benefits from his relationship with the deceased (see pars [32]-[39] above). The evidence was that on divorce he would only retain a very small proportion of that benefit (par [40]). That had been the appellant's experience with Ms Ingham (par [57]). 270None of these matters, either alone or in conjunction with each other, could lead to the conclusion beyond reasonable doubt that the appellant murdered the deceased. However, they do provide the background against which the events of 24 March 2005 fall to be evaluated. 271I have set out the evidence of these events in detail in pars [72]-[88] above. That evidence must be considered in the context that it was established, contrary to the statements of the appellant in his record of interview, that the deceased was fearful of heights whilst the appellant was not (pars [8], [9] and [23]). It is unlikely in these circumstances she would have been happy to camp close to the cliff, much less walk towards it. 272It is evident that the deceased believed she was going into a camping ground with facilities (par [72]). That can be contrasted with the place the appellant and the deceased set up camp. It was in an unauthorised camping area, difficult to access from the walking trail, uncomfortable to sleep on because of the slope and vegetation and close to the edge of the cliff (par [79]). 273The appellant said the reason for setting up camp at that site was that the deceased was tired and her pack was heavy (par [78]). However, it was around 2.00 pm and a matter of a 45 minute walk to the nearest designated campsite with facilities (par [79]). It would have been easy to arrive at that site by nightfall even travelling slowly with frequent rests along the walking track. It does not explain camping on an unauthorised site, itself difficult to access from the trail (par [79]). 274The appellant said that the deceased left the tent after 7.00 pm. The evidence was that it was a bright night with a full moon and civil sunset was at 7.27 pm (par [84]). The door of the tent was facing the cliff. It would have been self-evident to the deceased that she was walking towards the cliff if that was what in fact occurred. 275I have referred earlier to the evidence of Mr Beck. He ultimately said that a trip followed by a fall involved an assumption of a person walking at four kilometres per hour or a bit slower for a person of the deceased's age and gender. He stated that it was not necessary for the deceased to be walking directly towards the cliff and she could have fallen at a 15 degree angle. Accepting this evidence it would still mean that the deceased was walking at a moderate pace generally towards the face of the cliff when she tripped. 276It is in my opinion inherently improbable that a person having a fear of heights would walk at a moderate pace down an increasingly steep slope towards a visible precipitous cliff face such that the deceased tripped on a rock and fell to her death. Taking into account the unlikely explanation given by the appellant for camping near the site, his untrue statements that he was scared of heights, his conduct both before and after the death of the deceased and the financial advantage he stood to obtain, I am satisfied beyond reasonable doubt that the deceased was deliberately pushed over the cliff by the appellant. There can be no doubt that if this was the case, he intended to kill her. 277In reaching this conclusion I have not placed any reliance on the tendency evidence nor on the fact the appellant did not have a mobile phone. I do not think that the evidence of Ms Ingham was sufficient to give rise to the tendency alleged. The failure of the appellant to take a mobile phone does not seem to me to point one way or the other to a conclusion of homicide or accidental death. 278Nor have I taken into account the fact that the appellant rather than immediately raising the alarm climbed to the foot of the cliff to locate the body. A reaction of this nature was equally consistent with a belief the deceased had accidentally fallen over the cliff as well as with the hypothesis the deceased was pushed. It does, of course, provide further evidence that the appellant was not fearful of heights contrary to his statement in his interview with the police. 279However, for the reasons I have given I am satisfied the proviso applies and no substantial injustice was caused by the erroneous admission of the evidence of Associate Professor Cross.

[36]

Conclusion 280In the result, the appeal should be dismissed. 281SIMPSON J: I have read in draft the judgment of the Chief Justice. I agree, largely for the reasons given by his Honour, that the appeal against conviction should be dismissed. I will avoid, so far as possible, repetition of the factual basis of the Crown case. Ground 1 282Initially, Ground 1 of the appeal was linked with Ground 2 as then pleaded (by which the appellant complained of the trial judge's failure to leave to the jury an alternative verdict of manslaughter by unlawful and dangerous act). Ground 2 was abandoned as a result of the decision of this Court in Lane v R [2013] NSWCCA 317. 283As pleaded, Ground 1 asserts error on the part of the trial judge in one respect - in directing the jury with respect to murder by reckless indifference. That was said to be an error because murder by reckless indifference formed no part of the Crown case as it was conducted. The Crown case was unequivocally that the appellant intended to kill or inflict grievous bodily harm on his wife. 284As Ground 1 was argued, however (both in written and oral submissions), a second error was asserted. The second asserted error was said to lie in a direction given to the jury with respect to a possible alternative factual scenario in the death of Ms Campbell. It will be necessary to explain that further. 285The argument on appeal proceeded on the basis that the direction on murder by reckless indifference related solely to the alternative factual scenario. As the Chief Justice has pointed out (at [185]), that is not so. What are asserted to be two distinct errors need to be assessed separately. 286The Crown case was that the appellant did an act that caused the death of his wife, Janet Campbell, with the intention of killing her, or, at the very least, inflicting grievous bodily harm upon her. The act the Crown alleged was pushing her from the side of a cliff so that she fell to the beach below. It was not in dispute that, in the circumstances that prevailed, if it were established that the appellant did (deliberately) push his wife from the cliff, then the only realistic inference available was that he did so with the intention of killing her or at least inflicting grievous bodily harm. 287The factual issue between the parties therefore did not concern the appellant's state of mind; effectively the only factual issue was whether the Crown had established to the requisite standard that the appellant did in fact push his wife from the cliff, causing her to fall to the rocks below. The alternative case, advanced on behalf of the appellant, was that Ms Campbell's fall was the result of accident, or, at least, that the Crown was unable to exclude accident as a reasonable possibility. If that were accepted, the appellant was entitled to an acquittal. 288The mechanism by which Ms Campbell fell (to use as neutral an expression as possible) was the subject of expert evidence. However, in this respect, there was little, if any difference between the experts. The experts canvassed three possibilities as to the mechanism of the fall: that Ms Campbell slipped and fell down the cliff; that she tripped and fell down the cliff; and that she was pushed over the cliff. Both excluded a slip as improbable. Mr Beck, a biomedical engineer called on behalf of the appellant, considered a trip and a push to be equally consistent with the known facts. That was in accordance with the view expressed by Professor Cross, called in the Crown case. 289The difference between the two alternative factual scenarios is important. If Ms Campbell's fall was caused by her being pushed over the cliff, then there was no room for any rational view that her death was caused other than intentionally. (There was no candidate other than the appellant as the perpetrator.) On the other hand, a fall caused by tripping opened up the possibility of accident, with no intervention by the appellant. Indeed, as the case was conducted, it was assumed that the tripping hypothesis excluded intervention by the appellant. If the jury found that Ms Campbell tripped (or that there was a reasonable possibility that she tripped), her death was accidental, and the appellant was entitled to an acquittal. 290The expert evidence provided no basis for preferring the trip scenario to the push scenario, or vice versa. The jury was called upon to decide the mechanism of the fall by inference, based on the circumstantial case advanced by the Crown. This was not a case in which the jury could conclude that the expert evidence pointed to a push, from which it would have been a short step to conclude that it was the appellant who pushed his wife, and that he did so with the relevant intention. Rather, the push/trip alternative fell to be evaluated in the light of the mass of evidence concerning the appellant's hostility to his wife, his aberrant behaviour generally, and her fear of heights. 291A good deal of attention was paid, during the course of the trial, to the single shoe print left by Ms Campbell, as relevant to her position immediately before her fall. The importance of this evidence somewhat evaporated in the light of the conclusions of the experts that a trip and a push were equally consistent explanations for her fall. It may, however, have been a cause of concern to the jury. 292Neither party adverted to the possibility that, on the assumption that Ms Campbell tripped, the trip was preceded by, and caused by, a push by the appellant. The trial judge raised with counsel this third possible scenario. At the close of the evidence, her Honour said: "Up until now, the parties have almost entirely concentrated on whether it was a push or a trip. It occurred to me that it is, consistent with the facts ... open for the jury to find that the accused may well have either pushed or held Ms Campbell ... roughly by the arms and propelled her towards the cliff and then she tripped in the momentum that was initiated by the accused and fell over the cliff, in other words, I don't see that a push and a trip is necessarily inconsistent with the facts, nor do I think that it is inconsistent with the Crown case and likely to form murder." 293Counsel for the appellant had no difficulty with this proposition. He agreed that acceptance of that scenario would render the appellant liable for murder. He made no protest that what was contemplated represented a departure from the case made by the Crown. He did not suggest that, if the trial judge were so to instruct the jury, prejudice would be caused to the appellant. Nor did he suggest that, had that scenario been proposed by the Crown, he would have conducted the defence differently. 294Accordingly, the trial judge directed the jury as follows: "We know that she was close enough to the cliff edge so that she could be pushed over the edge or close enough, so that if she tripped, while facing down the slope, she was unable to recover her balance and she fell over the edge; or she was close enough so that a firm push towards the edge, followed by a trip, propelled her over the edge where her shoe impression was found. We know that she tried to save herself by grasping a nearby branch of a tree and that it broke in the attempt. You will appreciate that counsel in this trial have concentrated on one of two scenarios: Either Mrs Campbell was pushed; or she tripped. But I just want to remind you that they are not mutually exclusive. Even if the accused pushed Mrs Campbell towards the edge of the cliff so forcefully that she tripped as she was propelled forward and then was unable to recover her balance before going over the edge, that would nonetheless meet the legal requirements of murder, because the accused's act in pushing Mrs Campbell is a substantially contributing cause of her death." (italics added) 295Later, in the summing up, she said: "It has not been suggested that, if someone deliberately pushes another person from a 50-metre cliff onto a rock platform below, that such an act, deliberate act, would not be done with the intention to kill or to at least cause very serious injury. That is not a proposition that could be seriously argued by anyone. Similarly, a deliberate push towards the edge of such a cliff would demonstrate very considerable reckless indifference to human life." (italics added) The phrase "towards the edge of the cliff" (as distinct from "over the cliff") was repeated more than once. The phrase has featured in the submissions on behalf of the appellant, as hypothesising a factual scenario different from that advanced by the Crown. 296In fact, it did not. The focus of the trial was on whether the Crown had proved that the appellant pushed his wife, causing her to fall to her death. The focus of the trial was not on the immediate consequences of a push - (if the jury found that that had occurred) - that is, whether the push caused Ms Campbell to fall over the cliff, or whether it caused her to stumble (and trip) before falling. Either way, the appellant would have been guilty of murder. 297The direction was given, in my opinion, in order to deflect the jury from the distraction of the evidence concerning the shoe print, which in the end went nowhere. It allowed a reconciliation of evidence that Ms Campbell might have tripped, with evidence implicating the appellant in the cause of the trip. 298The acquiescence of counsel in the discussion with the trial judge indicates that that was how he perceived it. 299It was asserted, in the written submissions filed on behalf of the appellant, that: "3.11 The irremediable prejudice to the defence in casting this alternative basis for liability is that it entirely undermined the forensic mileage the defence had made in cross-examination." There was, however, no identification of "the forensic mileage" made by the defence and said to have been "undermined". Trial counsel did not perceive any adverse impact on the effectiveness of his cross-examination. 300In those circumstances, in my opinion there is no foundation in this aspect of Ground 1. 301The second aspect of Ground 1 concerns the directions on murder by reckless indifference to human life. 302Section 18(1)(a) of the Crimes Act 1900 (NSW) provides as follows: "18 Murder and manslaughter defined (1) (a) Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime punishable by imprisonment for life or for 25 years. (b) Every other punishable homicide shall be taken to be manslaughter." 303Murder is therefore committed when the act (or omission) causing death was done (or omitted): (i) with reckless indifference to human life; (ii) with intent to kill or inflict grievous bodily harm; (iii) in an attempt to commit, or in the course of the commission of, or immediately after the commission of, an offence punishable by imprisonment for life or for 25 years (felony murder). Category (iii), felony murder, is of no present relevance. 304Proof of murder by reckless indifference to human life requires proof by the Crown that the act causing death was done by the accused person in the knowledge of the probability that that act would cause death: The Queen v Crabbe [1985] HCA 22; 156 CLR 464; Royall v The Queen [1991] HCA 27; 172 CLR 378. 305The decision in Crabbe finally established that, in order to prove murder by reckless indifference to human life, it is not sufficient that the Crown prove that the accused adverted to the possibility that the act (or omission) would cause death. Nothing less than proof that the accused was aware of the probability that that act (or omission) would cause death would suffice. That issue was the focus of the decision. In the course of the judgment (Gibbs CJ, Wilson, Brennan, Deane and Dawson JJ), the Court recognised that there may be cases in which the Crown falls short of proving that the act (or omission) causing death is done with an actual intention to kill or to inflict grievous bodily harm, but nevertheless knows of the probability that it will cause death or grievous bodily harm. (That latter statement must be read in the light of the judgment of Mason CJ in Royall, in which his Honour said: "Section 18 departs from the common law in that it requires foresight of the probability of death; foresight of the probability of grievous bodily harm is not enough: Reg v Solomon [[1980] 1 NSWLR 321].") 306The directions given by the trial judge in this respect are extracted in the judgment of the Chief Justice. It is not suggested that they are other than perfectly correct. 307The facts in both Crabbe and Royall were somewhat unusual. In Crabbe, the Crown alleged that the accused (Crabbe) in a state of intoxication, drove a prime mover with a trailer through the wall of a motel in Ayers Rock and into a bar in which patrons were drinking. Five patrons were killed and many injured. The Court said: "There has been in this Court some difference of opinion as to whether the knowledge which an accused person must possess in order to render him guilty of murder when he lacks an actual intent to kill or to do grievous bodily harm must be a knowledge of the probability that his acts will cause death or grievous bodily harm ... or whether knowledge of a possibility is enough." (italics added) 308In Royall, the female victim fell from the bathroom window of a sixth floor flat in Kings Cross. The evidence showed that, earlier, the accused had assaulted her, with some degree of ferocity. The Crown put its case in three alternative ways:

the accused pushed the victim out of the window;
the accused attacked the victim in the bathroom, and she fell in the course of avoiding the attack;
the victim, with a well-founded and reasonable apprehension of life threatening violence, jumped from the window. 309In that case, the principal issue under consideration was causation. The various members of the Court, in separate judgments, adverted to the question of murder by reckless indifference to human life as distinct from murder with intent to kill or inflict grievous bodily harm. 310Crabbe and Royall are important for present purposes because they contain indications that the state of mind necessary to establish murder by reckless indifference to human life is not co-extensive with the state of mind necessary to prove murder with intention to kill or inflict grievous bodily harm. As will be seen, however, the distinction may be marginal. 311In this case, the trial judge was at pains to direct the jury in accordance with Crabbe. She explained that, before the appellant could be convicted of murder on the reckless indifference scenario, it was necessary to prove that he was aware of the probability (as distinct from possibility) that the act with which he was accused would cause his wife's death. In the circumstances of this case, there is very little - if any - difference between doing an act with an intention to kill (or to inflict grievous bodily harm) and doing an act in the recognition that it would probably cause death. Indeed, in Crabbe, the Court said: "... The conduct of a person who does an act, knowing that death or grievous bodily harm is a probable consequence, can naturally be regarded for the purposes of the criminal law as just as blameworthy as the conduct of one who does an act intended to kill or to do grievous bodily harm. Indeed, on one view, a person who does an act knowing its probable consequences may be regarded as having intended those consequences to occur ... It is however unnecessary to enter upon that controversy. If an accused knows when he does an act that death or grievous bodily harm is a probable consequence, he does the act expecting that death or grievous bodily harm will be the likely result, for the word 'probable' means likely to happen. That state of mind is comparable with an intention to kill or to do grievous bodily harm." Their Honours went on to distinguish between recognition of the probability of the consequence of death with the possibility of the consequence of death. 312In Royall, McHugh J said: "The state of mind of a person who knows that his or her act or omission, if done or omitted, will probably cause death cannot be distinguished in terms of moral culpability from the state of mind of the person who intends to kill or inflict grievous bodily harm. But there is a real distinction in terms of moral culpability between the latter two states of mind and the state of mind of a person who acts or fails to act even though he or she knows that there is a possibility that the act or omission might cause death." 313The trial judge emphasised that the real area of dispute lay in whether it was a deliberate act of the appellant that caused Ms Campbell to fall, or the fall was "nothing more than a tragic accident". That was undoubtedly correct. 314As I have said, it was always accepted that, if the Crown were able to prove that the appellant deliberately pushed his wife from (or towards) the cliff, the only inference available was that he did so with the relevant (actual) intention. Whether he did so was the central issue in the trial. Equally, it was plain that, if he did so, he was aware of the probability of death ensuing. 315In my opinion, given the manner in which the trial was conducted by the parties, introduction of the reckless indifference scenario was surplusage. There was no direct evidence of the appellant's state of mind (the appellant did not give evidence in the trial), and there was no basis in the evidence to distinguish between actual intention and recognition of the probability of death. 316In Pemble v The Queen [1971] HCA 20; 124 CLR 107, Barwick CJ said: "Of course, it is not appropriate in every case to give a direction as to reckless indifference to the consequence of a contemplated act as an aspect of the crime of murder. Indeed, occasions for doing so where there is material from which an intent to kill can be inferred, must be unusual. A trial judge, in my opinion, must be careful in a case of that kind to examine the evidence closely to satisfy himself that that evidence could support a conclusion that the accused acted with reckless indifference. A direction as to that aspect of murder when there is not material to warrant a conclusion that the accused acted with reckless indifference is likely to cause confusion in the minds of the jurymen; and ought not to be given. However, in my opinion, in this case the jury, if they were unwilling to infer an intent to kill or to do grievous bodily harm were entitled to accept the view that the appellant foresaw the possible consequences of the discharge of the rifle if it discharged or was discharged whilst he was in proximity to the deceased; that he must have known that the rifle was loaded; and that he approached the deceased with the cocked sawn-off rifle in that frame of mind and that he pulled the trigger to discharge the weapon: or they could accept the appellant's statement that he stumbled with the rifle held aloft, at a time when he merely wished to frighten her. On either view they were entitled, in my opinion, to conclude that the approach to the deceased in such a fashion was an act done with reckless indifference to human life. I would reject therefore the submission that the case was not one in which reference to murder by recklessness could properly be made." 317In Royall, Deane and Dawson JJ dealt with a submission that murder by reckless indifference to human life had inappropriately been left to the jury. Their Honours said: "It has, of course, frequently been pointed out that it is not appropriate in every case of murder to direct the jury upon reckless indifference: see, eg, Pemble v The Queen [[1971] HCA 20; 124 CLR 107]. Be that as it may, the mere fact that reckless indifference is left to the jury when it is unnecessary to do so, does not result in a mistrial if, in the circumstances, the direction would not have misled the jury or have been likely to cause confusion in their minds. In this case, having regard to the way in which the trial judge dealt with the subject, we do not think that the jury would have been misled or confused by his remarks, even if it would have been better had the trial judge confined the question of intent to intent to kill or to inflict grievous bodily harm. Of course, if reckless indifference is left to the jury, they must be properly directed upon the subject and the applicant complains that in this case the trial judge's direction was incorrect ..." Their Honours went on to hold that the jury had been adequately directed on the subject. 318So it is in the present case. Like the Chief Justice, I am of the view that the introduction of the concept of murder by reckless indifference did not cause a miscarriage of justice. I also would reject Ground 1 of the appeal. Grounds 3 and 4 319With respect to Grounds 3 and 4 of the appeal, I agree with the Chief Justice that the evidence did not establish that Associate Professor Cross was appropriately qualified to give evidence as a relevant expert. It is therefore not necessary to proceed to a determination of Ground 4. However, I should observe that I have some difficulty with the proposition that the findings of this Court, in a different case, concerning Associate Professor Cross' credibility or reliability (assuming he was otherwise qualified to give the evidence) amount to evidence (fresh or otherwise) that could be taken into account in determining the admissibility of his evidence: see Evidence Act 1995 (NSW), s 91. In my opinion the judgment of this Court in Wood v The Queen [2012] NSWCCA 21; 84 NSWLR 581 was and remains irrelevant to the admissibility of Associate Professor Cross' evidence. I would therefore reject Ground 4 of the appeal (if it were necessary to decide it). Ground 5: the evidence of Ms Ingham 320Ms Ingham gave evidence of a relationship which she had with the appellant that bore marked similarities to the relationship of the appellant and Ms Campbell. Her evidence was admitted both as tendency evidence under s 97 of the Evidence Act, and as evidence going to establish a motive on the part of the appellant to murder his wife. 321The direction given to the jury differentiated between the standard to which her evidence had to be proved if it were to be used by the jury as tendency evidence (to the criminal standard) and the standard to which it had to be proved if it were to be used by the jury as proof of motive (in which case the criminal standard did not apply). 322In this Court, it was accepted by the Crown that the evidence of the facts relied upon as tendency is to be proved beyond reasonable doubt. Accordingly, no argument has been directed to, or against, that proposition. This is not, therefore, the occasion to consider whether it is or is not correct. For my part, I would not wish to be seen to assent to the general proposition that evidence tendered as tendency evidence in a criminal trial must, in contrast with other circumstantial evidence, be proved beyond reasonable doubt. I wish to reserve consideration of that question, which is of considerable importance. 323Tendency evidence is a species of circumstantial evidence. It is well established that facts relied upon as part of the circumstances in a circumstantial case must be proved beyond reasonable doubt when they are indispensable intermediate steps in a chain of reasoning towards an inference of guilt: Shepherd v The Queen [1990] HCA 56; 170 CLR 573, per Dawson J at p 579, and see Mason CJ at p 575, but not otherwise. 324The evidence of Ms Ingham did not fall into the "indispensable steps" category. Her evidence that the appellant had behaved towards her in a manner that bore similarities to the manner in which he had behaved towards his wife did not constitute an indispensable link in the chain of reasoning towards guilt. It was merely another circumstantial fact (if accepted) to go into the mosaic constituted by the circumstantial case. Why tendency evidence should, so far as the standard of proof is concerned, be treated differently to other circumstantial evidence is not apparent to me. 325It may be that the proposition that "tendency evidence" tendered by the Crown in a criminal trial must be proved beyond reasonable doubt derives from the various judgments of the High Court in HML v The Queen [2008] HCA 16; 235 CLR 334: see also DJV v The Queen [2008] NSWCCA 272; 200 A Crim R 206; R v Doyle [2014] NSWCCA 4 at [129]. 326If HML is the source of the proposition, then, in my opinion, the proposition is questionable, for a number of reasons. 327In HML, the accused was charged in South Australia with two counts of unlawful sexual intercourse with his daughter, who was under the age of 12 years. Consent (or absence thereof) was accordingly not an issue. The issue in the High Court concerned evidence tendered by the Crown of other acts of sexual impropriety alleged against the accused which were not the subject of charge. The evidence was referred to as evidence of "uncharged acts", a subject that has frequently troubled courts of criminal appeal (and trial courts). There is a marked absence of unanimity in the judgments in HML. 328Hayne J (with whom Kirby J, at least, generally agreed) concluded that evidence of sexual conduct other than the offences charged may be admissible under the tests stated in Pfennig v The Queen [1995] HCA 7; 182 CLR 461, but may be used by the jury as a step in reasoning towards guilt only if the jury is satisfied beyond reasonable doubt "of the premise for that chain of reasoning": at [244]. But Hayne J emphasised (at [102]) that his conclusions were confined to cases in which absence of consent was not an element of an offence being tried. That caveat is important. 329Even more importantly, HML was an appeal from a jurisdiction in which the issue fell to be determined on common law principles. South Australia has not adopted what was hoped would be uniform evidence legislation. 330In NSW, it is to the Evidence Act that judges must look for guidance on the question of the admissibility (and standard of proof) of, inter alia, tendency evidence: R v Ellis [2003] NSWCCA 319; 58 NSWLR 700. 331I can find nothing in the Evidence Act to support the proposition that evidence tendered as tendency evidence in a criminal trial must be proved beyond reasonable doubt before it can be used in proof of an offence. 332Moreover, it is not at all clear, from the judgments in HML, what it is that must be proved beyond reasonable doubt. Under s 97 of the Evidence Act, evidence may be admitted to prove a tendency on the part of an accused (or other person), from which it might be inferred that that person acted in conformity with that tendency - that is, in proof of the offence charged. Is it the facts of which evidence is tendered to prove the tendency that must be proved beyond reasonable doubt? Or is it the tendency itself? 333These questions cannot here be resolved. I emphasise that these remarks are not intended to express any concluded views. They are intended only to signal that I do not accept (or reject) the proposition that, in a criminal case, evidence tendered by the Crown as tendency evidence must be proved beyond reasonable doubt. That remains a live issue to be determined in an appropriate case. This is not that case. 334It may be that the direction given to the jury was unduly favourable to the appellant. In any event, I agree with the Chief Justice that the direction was clear, and would not have confused the jury. I agree that, pursuant to r 4 of the Criminal Appeal Rules (NSW), leave to argue this ground of appeal should be refused. The proviso 335Finally, I agree with the Chief Justice that, with respect to the error in admitting the evidence of Associate Professor Cross, the proviso to s 6 of the Criminal Appeal Act 1912 (NSW) ought to be applied. I do so for the reasons given by his Honour, and for the additional reason that the evidence given by Associate Professor Cross did not, when analysed, advance the Crown case. As mentioned above in relation to Ground 1, both experts agreed that Ms Campbell could have fallen from the cliff by reason of being pushed, or by reason of having tripped. Neither proffered a preference. 336The circumstantial case put forward by the Crown was extraordinarily powerful. It is set out in some detail in the judgment of the Chief Justice and does not call for repetition. 337Accordingly, I agree that the appeal against conviction ought to be dismissed. 338HIDDEN J: I agree with the order proposed by the Chief Justice and with his Honour's reasons, as I do with the additional observations of Simpson J.

Campbell v R

At a glance

Court

Decision date

Before

Source

Judgment (37 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (59)

Cited By (7)