CLEVERLY, Richard v. Regina [2007] NSWCCA 169

PARTIES: Richard Cleverly - appellant Regina - respondent

COUNSEL: Ms. J. Hickleton for appellant Mr. P. Ingram with Ms. E. Elbourne for respondent

SOLICITORS: George Sten & Co. for appellant S. Kavanagh for respondent

IN THE COURT OF CRIMINAL APPEAL CCAP 2006/1952 SC 2003/105

HODGSON JA GROVE J SIMPSON J

Monday 25 June 2007 CLEVERLY, Richard v. REGINA Judgment 1 HODGSON JA: On 21 July 2004, the appellant was indicted before Mathews AJ in the Supreme Court at Sydney on a charge that he, on 3 July 2002 at West Ryde in the State of New South Wales, did murder Susan Smith. The appellant pleaded not guilty, and was tried before her Honour and a jury of twelve. 2 On 17 August 2004, the jury returned a verdict of guilty. 3 Subsequently, the appellant signed a form under s.32 of the Crimes (Sentencing Procedure) Act 1999, in which he admitted two offences and asked that they be taken into account in sentencing him for murder. Those two offences related to an apparent home invasion on 6 August 2003, to which I will refer later. 4 On 17 December 2004, the appellant was sentenced to imprisonment for a term of 24 years commencing 9 February 2003, with a non-parole period of 18 years. 5 The appellant appeals against his conviction.

THE CROWN CASE 6 The Crown case against the appellant was circumstantial. The substance of it was as follows. 7 As at 3 July 2002, the deceased Susan Smith was aged 42, and she lived with her sister Margaret Smith at 37 Mons Avenue, West Ryde. Both of them worked, Susan at Coles Myer at Chullora and Margaret at a law firm in the city. 8 Another sister, Helen Cleverly, lived nearby at 122 Constitution Road, West Ryde, with her two youngest sons David and Michael. Her other son was the appellant, who was then aged 18 and who also lived nearby at 2/43 Meadowbank Crescent, Meadowbank, with his girlfriend Beth Azzopardi. At the time, the appellant was not in employment. 9 The three sisters' mother had died in January 2002, and their father had died on 25 June 2002. 10 Margaret and Susan were security conscious, and had bars and security locks on the house windows and deadlocks on the doors. In May 2002, they had gone on holiday together and had given Helen Cleverly a set of keys to their house. Their father also had had a set of keys to the house. 11 Susan usually arrived home at about 6pm, and Margaret usually arrived home at about 7pm. On 3 July 2002, cameras at West Ryde Station recorded Susan passing through it at 5.35pm, suggesting that she arrived home at about 5.50pm. 12 Margaret gave evidence that she arrived home at her normal time on 3 July 2002. She saw there were no lights inside the house, and that the door to the electricity box was open. The security door at the rear of the house was open, and the closing mechanism was missing. She went inside, found a torch, and then discovered her sister's body on the loungeroom floor. She ran outside, and rang 000 on her mobile phone (this call being timed at 7.12pm). 13 Ambulance officers confirmed that Susan was dead, and then went to the electricity box. They saw the latch had been broken or cut, and that a piece of twine had been attached to the latch area. The main switch in the box was off. When one of the officers turned it on, the kitchen and bathroom lights came on. 14 Later, police arrived. They found no sign of forced entry. A post-mortem examination showed that Susan had died as a result of ligature strangulation. 15 On 4 July 2002, police interviewed a number of the deceased's relatives, including the appellant. The appellant said he had returned to his unit at about 6.05pm, and had not been to his aunt's house. Police obtained a DNA sample from him. 16 On 6 July 2002, the appellant told his mother that he had discovered his aunt's body, and the following day he also told his girlfriend's parents. They advised him to contact the police. He did so, and later that day, police interviewed him again. 17 In this interview, the appellant said he went to his aunt's house at about 10 to 6 on 3 July 2002 to drop off a jumper that needed to be repaired. He said that when he got there, lights were on and he rang the front door bell, but there was no answer. He rang the second time, and the lights in the house went off. He went to the rear of the house, and saw that the screen door was ajar. He tried to turn the laundry light on, and when it did not come on he went to the electricity box. There was a rope or something tied to it. He noticed a toolbox sitting on a concrete slab near the electricity box. He opened it, but there was nothing inside it but paper. He was able to reach his hand up inside the electricity box and turn the switches up. The kitchen light came on, and he went back to the rear entrance of the house. He operated the closing mechanism on the screen door so that it remained open. He went inside and looked around, and he found his aunt lying face-down on the loungeroom floor. He asked if she was alright and she did not answer. He picked up one of her arms and unravelled her fingers which had been clenched in a fist. Her fingertips were cold. He heard a gate closing, and he ran out of the house and drove away. He did not call the ambulance or the police, because he was scared he would be blamed. 18 After the interview, the appellant accompanied police to his unit where he produced his clothing, including a Cougar brand fleece top, that he said he was wearing on 3 July 2002. 19 On 10 July 2002, Beth Azzopardi provided a statement to police. She said the appellant arrived home at about 6.45pm. 20 At the trial, Beth Azzopardi gave evidence that she told the appellant what she had told the police, and the appellant said their times did not match because his mother had told him to leave something out of his statement, namely that he had spent between half an hour and one hour sitting outside Craig Armour's house, and he had not told the police about this because his mother said he could be charged with stalking. Helen Cleverly confirmed this in her evidence. 21 Clippings from fingernails of both of the deceased's hands contained DNA consistent with the appellant's DNA. The expert giving evidence about DNA said that it was unlikely that this would have resulted from the appellant rubbing the deceased's hands in the way he described. The appellant's fingerprints were found on the outside of the electricity box, and his left palm print was found on the front lip of a red toolbox brought to the attention of police by Margaret Smith on 15 August 2002. On that day, she went to the Mons Avenue house with a police officer, and went to a wardrobe in her bedroom where she said she kept documents including her and the deceased's wills and title deeds to her property. She located the red toolbox, but found the wills missing, and she told the police about that. 22 Margaret Smith gave evidence that she and the deceased had written wills leaving everything to each other. At the time of Susan's death, they owned the Mons Avenue property outright. Susan had about $140,000.00 in savings, and Margaret had about $200,000.00 in savings. Their father had left his estate equally between his three daughters, except for a car which was left to the Cleverly boys. 23 Fibres indistinguishable in optical properties from fibres from the appellant's Cougar top were found on the clothing of the deceased. 24 On 24 July 2002, at about 7pm, Margaret Smith was attacked by an assailant at the front door of her father's house at 10 Small Street, Ryde, to which she had moved on 10 July 2002. She was dragged back from the front door and thrown to the ground. The attacker ran off when a next-door neighbour came to her assistance. Margaret gave a partial description of her attacker. She was unable to see his face, but she said she thought she saw a bit of what looked like blond hair (the appellant has dark hair). She described the attacker as being about 6 feet tall and of slim build. 25 On 25 July 2002, the appellant asked his mother to bring Margaret to her unit. Then he showed Margaret some images of his fish tank, which the appellant said had a time displayed which proved he was at home when Margaret was attacked. 26 On 27 July 2002, the appellant was at his mother's house. His mother and Margaret Smith were in the loungeroom. They heard screaming, went outside and found the appellant in a distressed state. He said he had been doused in petrol by an assailant. He was conveyed to hospital and police were called. 27 There was extensive evidence of communications, generally by computer discs or letters, to the appellant and his mother. The first in time was associated with a reported break-in at the appellant's unit in January 2002, that is about six months before the death of the deceased. Police attended at about 11pm on that occasion, and found that the unit had been ransacked. The appellant told them that documents, two computer hard drives, a laptop and a computer disc had been taken. The appellant showed police a message on his computer screen which demanded some documents and a computer program, signed by "I2". 28 The next communication was a computer disc received by Helen Cleverly on 14 August 2002, containing a threatening letter demanding the return of an item by the appellant, signed I1. Another disc was received by Helen Cleverly on 21 August 2002, with a communication signed by I4. A third disc was received at Helen Cleverly's house on 27 November 2002, with a communication containing threats and reference to "property that your son possesses" signed by I2. In late December 2002, Mrs. Cleverly received a message from I2 claiming that I2 was responsible for the murder of Susan Smith and threatening to kill the appellant. At about the same time, while in custody, the appellant received a letter from I2 threatening to kill the appellant's remaining family. 29 However, earlier while in custody (the appellant had by this time been charged with murder), the appellant had sent a letter to his mother dated 17 September 2002, expressing the opinion that his aunt Margaret had murdered his aunt Susan, giving as the reason that the letter at the beginning of the year said the writers wanted him to return a computer program, and that he had returned that program, so that the communications sent later must have been sent by a "copycat". Helen Cleverly did not disclose the letter to police. It was located by the police in June 2003 when they executed a search warrant. 30 On 27 April 2003 and 2 or 3 May 2003, there were incidents at Mrs. Cleverly's house suggesting attempted intrusions. On each occasion there was writing on the outside of the house suggesting threats against the family, including on one occasion the letters I2 or IZ. 31 On 6 August 2003, there was a home invasion at Mrs. Cleverly's house, when David and the appellant were bound, and items taken, and the letters I2 or IZ were written on internal walls. However, David recognised one of the intruders, and that intruder later admitted participating in the intrusion, and that it had been planned by the appellant and himself. The appellant admitted that he did arrange this incident, giving as his reason that there was a bail review coming up and he wanted to try to keep out of gaol.

THE APPELLANT'S CASE 32 The appellant gave evidence at the trial. The evidence was in similar terms to his second statement to police, except that he said that he had arrived at his aunt's house at about 6.30pm or after. 33 The appellant also gave evidence about prior incidents, including the break-in in January 2002; and he said there were also other prior incidents. He said that he had arranged for the staged home invasion on 6 August 2003, but he denied that he was involved in any of the other incidents or communications. In particular, he denied any involvement in the attack on Margaret Smith, and he denied that he had doused petrol on himself on 27 July 2002. 34 In relation to his letter of 14 September 2002, he disavowed any suggestion that Margaret Smith had killed her sister, and he also disavowed the statement in the letter that he had previously had something that I2 wanted, and that he had returned it to I2. 35 Thus, the appellant's case was essentially to challenge the Crown's circumstantial case, and to leave open the hypothesis that the deceased may have been killed by I2 or that person's associates.

GROUNDS OF APPEAL 36 The appellant relies on the following grounds of appeal: 1. A miscarriage of justice occurred because the learned Crown prosecutor changed his case, in that he closed on the basis, inter alia, that the accused had attacked his surviving aunt Margaret, whereas he had opened only on the basis that the accused had orchestrated the attack. 2. The learned trial judge erred in failing to direct that the jury that the Crown bore the onus of excluding any reasonable hypothesis raised on the evidence beyond reasonable doubt. 3. The learned trial judge erred in failing to direct that the jury that such an hypothesis had been raised on the evidence - namely, that Susan Smith was murdered by her sister Margaret. 4. The learned trial judge erred in failing to warn the jury of the dangers of drawing inferences from a person, namely Margaret Smith, who might reasonably be supposed to have been criminally concerned in the events giving rise to the trial. 5. The learned trial judge erred in failing to exclude evidence of the attack upon Margaret Smith on 24 July 2002. 6. The learned trial judge erred in failing to direct the jury as to the limits upon their use of the said evidence. 7. In her summing up before the jury, the learned trial judge erred in commenting adversely on the credit of the accused in respect of his memory of the colour of the box which he found near the powerbox of the victim's home. 8. The learned trial judge erred in failing to ensure that the evidence concerning the charging of Helen Cleverly with perverting the course of justice was given in the absence of the jury. 9. The learned trial judge erred in failing to direct that jury that Mrs. Cleverly had not been convicted of any offence, and was entitled to a presumption of innocence. 10. The learned trial judge erred in failing to direct the jury as to the limits on the ways in which they might use the evidence that Helen Cleverly had been so charged. 11. For each of the above reasons, alone and in combination, there has been a miscarriage of justice. 12. The verdict is unsafe and unsatisfactory. 37 I will deal in turn with what was developed in the written submissions for the appellant, and particularly in the oral submissions, as the appellant's primary argument, which covered a number of the grounds of appeal (grounds 1, 5, 6, 8-12). Then I will deal with the remaining grounds and submissions, not already dealt with in relation to the primary argument.

PRIMARY ARGUMENT Submissions 38 Ms. Hickleton for the appellant submitted there was a miscarriage of justice arising from the following combination of circumstances: 1. The Crown did not, in opening the case, or in any other way, disclose any intention to use the attack on Margaret Smith to support a case that the appellant had a motive to kill the deceased. 2. In those circumstances, an objection previously raised by the appellant's Counsel to evidence of that attack being led was withdrawn, and that evidence was led. 3. Also, information that Mrs. Cleverley had been charged with offences of the nature of perverting the course of justice was introduced before the jury, and the trial judge failed to direct the jury that Mrs. Cleverly was entitled to the presumption of innocence and failed to give them guidance as to how they could use that evidence. Thus the jury were invited to draw the inference that Mrs. Cleverly was of bad character, thereby tending to support an allegation made by the Crown Prosecutor in opening that Mrs. Cleverly had conspired with her son to mislead police as to the identity of the murderer of Susan Smith. 4. Even though there was no evidence that the appellant was involved in the attack on Margaret Smith, the Crown Prosecutor said the following in his closing address to the jury: Now you might think, members of the jury, that if, it's a matter for you, if Margaret was killed on this night, if this was a real attempt to kill Margaret on this night, and none of the wills, her will or Susan's will would be found, the grandparents having died earlier that year, who might get Mons Avenue, indeed, who might now get all of 6 Small Street? So is this a legitimate attempt to kill Margaret? You would remember that there was evidence that Margaret had changed the lock on 6 Small Street when she moved there. So it wasn't easy for the attacker to be able to gain entry, because of a change of keys. Or is it not really not an attack to kill her, but really an attack in a similar fashion designed to influence the police into believing that the killer of Sue is also out after Margaret and it couldn't be the accused because apparently at the time he was home cleaning the fish tank and down at the supermarket buying chicken? It was either the accused, in my submission to you, or he organised for this to be done. 5. Thus, even though there was no acceptable evidence of motive in the appellant, the Crown invited the jury to speculate about motive, to the effect that through the murder of Susan and the murder of Margaret, if achieved, substantial property would pass to the appellant's mother to the benefit of the appellant; and this was likely to have had a powerful impact on the jury. 6. In the absence of any suggestion of motive, as should have been the case, there was a reasonable possibility that the appellant would have been acquitted. There were explanations for his admitted lies about his movements on 3 July 2002 and his involvement in the home invasion of 6 August 2003 which, since he was young and, on each occasion, frightened, were reasonable. Thus the combination of circumstances deprived the appellant of that reasonable possibility. 39 Ms. Hickleton accepted that none of these points had been raised below, giving rise to the need for leave pursuant to r.4 of the Criminal Appeal Rules; but she submitted that the matters she relied on discharged the appellant's onus of showing miscarriage of justice.

Decision 40 No error of law by the trial judge is suggested, so there is an onus on the appellant to show there has been a miscarriage of justice: Papakosmas v. The Queen (1999) 196 CLR 297 at 319. As McHugh J points out there, where an appellant has failed to object to evidence or failed to ask for a direction, the trial judge has made no error of law in admitting the evidence or not giving the direction, because the judge has not been asked for a ruling. 41 The miscarriage of justice suggested is essentially that the appellant lost a reasonable possibility of acquittal because the Crown Prosecutor did not, in opening the case or in any other way, indicate that the attack on Margaret Smith would be used to support motive, yet ultimately invited the jury to speculate about motive on this and other material which otherwise would and should not have been before the jury. 42 In assessing the merit of that submission, it is necessary to consider the way the appellant's case was conducted by the appellant's Counsel at the trial, who is not his Counsel on the appeal, and has not put on any evidence concerning his conduct of the case or reasons for decisions made in the conduct of the case. 43 It is plain from the way the appellant's Counsel conducted the trial that the appellant did seek to leave open as a possible hypothesis that the deceased may have been murdered by I2 and/or an associate of I2, being a person or persons who had since January 2002 been attacking and threatening the appellant's family. 44 The series of incidents following the death of the deceased were led in evidence by the Crown as part of a matrix of facts supporting the circumstantial case against the appellant, it being clear that the Crown proposed to submit, as it did, that these incidents were arranged by the appellant in order to suggest that someone else was involved in the murder. The Crown case to that effect had strong support from the appellant's admitted involvement in the home invasion of 6 August 2003, his strange behaviour in having his aunt Margaret come to his house to see time-coded photographs of his fish tank in order to establish an alibi concerning the attack on her, the admission in his letter of 17 September 2002 that he had returned the items sought in the threatening communications in January 2002, so that later communications must be by a copycat, and by some of the detailed evidence concerning the circumstances and times relevant to other communications. 45 However, the appellant at his trial relied on these later incidents to the extent that they may have suggested that I2 or an associate of I2 may have killed the deceased; and it could be seen as beneficial to that case if these attacks and threats went so far as to include an actual physical attack on the deceased's sister, showing that the perpetrators were prepared to go to such lengths. Accordingly, it is by no means surprising that evidence of the attack on Margaret was not objected to. 46 As regards the information that Mrs. Cleverly had been charged with offences of the nature of perverting the course of justice, that first came before the jury as a result of cross-examination of Beth Azzopardi by the appellant's Counsel. The appellant's Counsel was asking her questions about an intercepted telephone conversation of 17 June 2003 between her and the appellant, in which the appellant said that his mother had said "Now that I am in trouble". The appellant's Counsel asked Ms. Azzopardi what was that a reference to, to which Ms. Azzopardi replied "I think it is referring to the fact that she was charged or … told she may have been charged". Counsel then asked "Over what?", to which Ms. Azzopardi replied "Over perverting the course of justice". 47 Then, when Mrs. Cleverly was called by the Crown to give evidence, the appellant's Counsel resisted the matter of a certificate under s.128 of the Evidence Act 1995 being dealt with in the absence of the jury, until Mrs. Cleverly had taken an objection. Then, Mrs. Cleverly, not in response to any question, said "Well I object to answering questions in relation to some of the statements which are going to be brought up, because I am facing charges in relation to those statements". The trial judge gave an explanation to the jury about the effect of a s.128 certificate, which was not the subject of any complaint by the appellant's Counsel; and she was not asked to give any of the directions suggested by Ms. Hickleton. 48 Thus, in respect of this matter, there could be no suggestion of any unfairness by the Crown Prosecutor or error of law by the trial judge. And the appellant's Counsel could reasonably have taken the view that it was plain that Mrs. Cleverly had deliberately withheld the letter of 19 September 2002 from the police, and that further directions concerning charges brought against her would highlight the matter and be counter-productive. 49 There remains the contention that there was some unfairness in the Crown's closing submissions concerning motive. However, it was always plain that the jury would have evidence capable of suggesting a possible monetary motive, namely evidence of the financial position of the deceased and of Margaret Smith, and evidence of the disappearance of the wills, albeit that the prospect of monetary gain to the appellant was somewhat remote. In these circumstances, the very brief reference by the Crown, in closing submissions, to a possibility that the attack on Margaret may have been a real attempt to kill her, and that if so, the appellant's mother would stand to gain, could hardly have taken the appellant or the appellant's Counsel by surprise. As I have said, there is no evidence from the appellant's Counsel that he was in any way taken by surprise, or that he would have conducted the case any differently if he had been warned that this would happen. 50 Furthermore, in her summing up, the trial judge said to the jury "little or no motive has been displayed for the accused to kill his aunt" (par.[32]); and she went on to say "You might well think any attempt to find a motive for the accused to kill his aunt involves a degree of speculation" (par.[37]). 51 Having regard to all these considerations, I do not think the matters relied by Ms. Hickleton, individually or in combination, suggest there has been a miscarriage of justice. Quite apart from r.4, I see no basis for appellate intervention; and certainly, there is no basis for giving leave under r.4.

ROLE OF MARGARET SMITH 52 The other main argument was based on grounds 2-4, concerning the position of Margaret Smith. Ground 2 was not, and could not have been, pursued as an independent ground, because the trial judge did give the direction in question at par.[29] of her summing up.

Submissions 53 Ms. Hickleton submitted that Margaret Smith had a motive to kill the deceased, as sole beneficiary under the deceased's will; and also had the opportunity, leaving aside her own uncorroborated evidence that she arrived home at the usual time, this being a time later than the time the appellant was at the house. Accordingly, she submitted, the trial judge erred in failing to direct the jury that there was a reasonable hypothesis raised on the evidence that had to be excluded beyond reasonable doubt, namely that the deceased was murdered by Margaret Smith; and she also erred in failing to direct the jury as to the dangers of relying on her evidence, when she was a person who might reasonably be supposed to have been criminally involved in her sister's death. Thus, there should have been such a direction not only about her evidence as to the time of her arrival at the house, but also about matters such as the placing of the wills in a box in the wardrobe and later finding the box in the wardrobe without the wills.

Decision 54 In my opinion, there is no substance in these submissions. There was nothing in evidence in the case that made it a reasonable hypothesis that Margaret had murdered her sister. 55 There was no challenge to her evidence that she arrived home at the usual time of about 7pm, after the appellant, on his account, had found the deceased's body and had left. The material before this Court does not disclose whether the Crown had corroborating evidence of that, but there could have been such evidence, and in circumstances where no challenge was made to Margaret Smith's evidence, there was no occasion for the Crown to call any corroborating evidence. 56 As mentioned earlier, the only positive hypothesis suggested in the appellant's case was that the person or persons responsible for the break-in in January 2002 and associated threatening communications (that is I2 and perhaps I1 and/or I4) may have been responsible for the murder of the deceased; and the appellant in the witness box disavowed the suggestion in his letter of September 2002 that Margaret was responsible. 57 No direction to the effect that there was a reasonable hypothesis that Margaret was responsible was sought by the appellant's Counsel, and indeed, could not have been sought in circumstances where her evidence as to timing was not challenged. It is understandable that the appellant's Counsel did not challenge that evidence or seek that direction, as this could have tended to discredit the only positive case the appellant was advancing. 58 Accordingly, there was no error by the primary judge and there is no suggestion of any miscarriage of justice. In any event, there is no basis for giving leave under r.4 to rely on these matters.

OTHER MATTERS 59 There is a suggestion in ground 1 that there was a significant change in the Crown's case arising from the suggestion in the final address that the appellant himself attacked Margaret, rather than merely arranging this. This suggestion has no substance. The possibility that the appellant himself attacked Margaret Smith was only put as a possible alternative, and it was one that could properly be put in that way. 60 Associated with this ground, there was a submission that Margaret Smith was discredited because she said to police that she did not think she knew her assailant, and her evidence was that she saw blond hair; and yet, it was submitted, she "gave evidence at the trial that she considered the accused to have been her attacker". 61 That is a submission that should not have been made. In her evidence, Margaret Smth did not say she believed the appellant was her attacker: rather, when the appellant's Counsel suggested she had eliminated the appellant as a suspect as her attacker, she merely said she had not eliminated him. 62 Ground 7 referred to a comment on the credit of the accused in respect of his memory of the colour of the box which he found near the power box of the victim's home. 63 This comment was of very little significance in the case, particularly in circumstances where the trial judge had directed the jury (summing up par.[5]) that it was not her role to comment on the evidence, and that if the jury thought she had taken a view of any part of the evidence, they must ignore it. 64 There was no suggestion made in the case by anyone that the tool box referred to by the appellant, containing papers, could have been anything other than the box in which the wills were kept, on which the appellant's palm print was found; and the appellant's account of what happened in relation to that box could reasonably be seen as his explanation of how his palm print came to be on it. In circumstances where there was no reason to question Margaret's evidence that the box was kept in a wardrobe in her bedroom, and was later found there with the wills missing, the appellant's account of what happened could only be explained, on his case, by the murderer having taken the box from the wardrobe, having put it down near the electricity box, and later replacing it in the wardrobe. This scenario could reasonably have been regarded by the jury as highly unlikely, and of much greater significance than a question about the colour of the box. 65 Grounds 11 and 12 have largely been dealt with. In my opinion, the Crown's case was a strong circumstantial case. In my opinion, the material does not suggest any miscarriage of justice, and the jury's verdict was a reasonable one. 66 For those reasons, in my opinion the appeal should be dismissed. 67 GROVE J: I agree with Hodgson JA. 68 SIMPSON JA: I agree with Hodgson JA. **********

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