Edwards v R

Catchwords

[2017] NSWCCA 78 Doggett v The Queen (2001) 208 CLR 343[2001] HCA 46 Gilbert v The Queen (2000) 201 CLR 414[2000] HCA 15 Gillard v The Queen (2003) 219 CLR 1[2003] HCA 64 Greenhalgh v R [2017] NSWCCA 94 King v The Queen (2012) 245 CLR 588[2012] HCA 24 La Fontaine v The Queen (1976) 136 CLR 62[1976] HCA 52 M v The Queen (1994) 181 CLR 487[1994] HCA 63 Meakin v R [2018] NSWCCA 288 Mraz v The Queen (1955) 93 CLR 493[1955] HCA 59 Mulvihill v R [2016] NSWCCA 259 Nudd v The Queen (2006) 80 ALJR 614[2006] HCA 9 Orreal v The Queen (2021) 96 ALJR 78[2021] HCA 44 Papakosmas v The Queen (1999) 196 CLR 297[1999] HCA 37 Pell v The Queen (2020) 268 CLR 123[2020] HCA 12 R v Baden-Clay (2016) 258 CLR 308[2016] HCA 35 R v Birks (1990) 19 NSWLR 677 R v Ciantar (2006) 16 VR 26[2006] VSCA 263 R v Fuge (2001) 123 A Crim R 310[2001] NSWCCA 208 R v ITA (2003) 139 A Crim R 340

Judgment (38 paragraphs)

[1]

2] HCA 46 Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65 Category: Principal judgment Parties: John Wallace Edwards (Applicant) Regina (Crown) Representation: Counsel: M Higgins, S Lawrence, L Opper (Applicant) B Hatfield (Crown)

[2]

Solicitors: Sydney Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Crown) File Number(s): 2017/184174 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: R v Edwards (No 3) [2019] NSWSC 1815 Date of Decision: 22 November 2019 Before: R A Hulme J File Number(s): 2017/184174

[3]

Judgment

BATHURST CJ: I have had the advantage of reading the judgment of Dhanji J in draft.
I agree with the orders proposed by his Honour and would only make the following additional remarks.
In [67] of his judgment, Dhanji J cites the decision of the High Court in Orreal v The Queen [2021] HCA 44 ("Orreal") as authority for the proposition that in considering the application of the proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW), rather than applying the test in M v The Queen (1994) 181 CLR 487; [1994] HCA 63, the Court does not consider whether any doubt is resolved by the advantage held by the jury, but rather that the Court's capacity to be satisfied beyond reasonable doubt is impacted by the natural limitations inherent in proceeding wholly or substantially on the record.
This proposition, which finds particular expression in the judgment of Gordon, Steward and Gleeson JJ in Orreal at [44], does not involve applying a different approach in considering guilt for the purpose of the proviso to that adopted in determining whether a verdict was unreasonable. Rather, it recognises that in the former case, consideration must be given to the question of whether the jury's verdict could have been affected by what was said to have constituted an error or miscarriage of justice. If that conclusion is reached there is no room for the operation of the proviso. So much was made clear by Kiefel CJ and Keane J in Orreal at [22]. As their Honours pointed out, the contrary approach would duplicate the function of the jury.
Thus, in Orreal it was not appropriate to apply the proviso as the admission of the irrelevant evidence had the capacity to influence the jury as to the outcome, particularly in circumstances where no direction was made as to how the jury should deal with it. In those circumstances the Court of Appeal should not have sought to apply the proviso by adopting its own view of the evidence, irrespective of the manner in which the inadmissible evidence may have influenced the jury: see Orreal at [23], [45].
So far as the unreasonable verdict ground is concerned, I agree with the conclusion reached by Dhanji J and with his reasons. Like Dhanji J, I have not placed any reliance on whatever principle may be derived from the decision of the High Court in Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65.
ROTHMAN J: I agree with Dhanji J and with the additional comments of Bathurst CJ.
DHANJI J: The applicant, John Wallace Edwards, seeks leave to appeal against his conviction for the murder of his wife, Sharon Margaret Edwards (the deceased) on or about 14 March 2015, contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The applicant pleaded not guilty before R A Hulme J and after the hearing of some pre-trial issues commencing on 28 October 2019, a jury was empanelled on 30 October 2019. On 22 November 2019 the applicant was found guilty. On 18 December 2019 he was sentenced to 24 years' imprisonment commencing on 20 June 2017 and expiring on 19 June 2041 with a non-parole period of 18 years expiring on 19 June 2035. The applicant does not seek to appeal against sentence.
The Crown case at trial was circumstantial. The Crown case principally relied on evidence as to the relationship between the applicant and the deceased, evidence concerning his movements on the night the deceased disappeared, and evidence of the applicant's post-offence conduct which included various lies and otherwise inconsistent accounts of relevant events. The availability of expert evidence as to the manner and cause of death was limited as a result of the fact the deceased's body has never been found.
The applicant did not give evidence but witnesses were cross-examined and his counsel's closing address was delivered on the basis that the applicant had nothing to do with his wife's disappearance (or more accurately as to the closing address, the Crown had not proved to the requisite standard that he had). The element of death was not seriously in issue. Counsel submitted that the applicant's behaviour in the aftermath of his wife's disappearance was consistent with distress and confusion which was understandable in the circumstances. In the course of his Honour's summing up, after the directions in relation to lies and consciousness of guilt had been given, counsel for the applicant raised the possibility of leaving an alternative verdict of manslaughter to the jury. It was eventually determined that this verdict would be left. The applicant's first three grounds of appeal arise from the directions with respect to the alternative verdict of manslaughter.
The applicant's grounds of appeal were as follows: "[Ground 1:] The trial judge erred when directing the jury as to how they could use evidence of post-offence conduct including lies, said to demonstrate consciousness of guilt, by not directing the jury: a) that the conduct could be used in respect of the manslaughter count as well as the murder count; and b) that they could only use the evidence as an indication of consciousness of guilt of murder if they were satisfied that the lies were not told out of a consciousness of guilt of manslaughter. [Ground 2:] The trial judge erred by not holding that the post-offence conduct including lies, said to demonstrate consciousness of guilt, was 'intractably neutral' as between murder and manslaughter and by not directing the jury accordingly. [Ground 3:] The trial miscarried because the jury were not directed in a fair and balanced way as to the reasonable hypothesises [sic] consistent with manslaughter that arose on the evidence and which were required to be excluded before the [applicant] could be convicted of murder. [Ground 4:] The verdict of murder was unreasonable and cannot be supported having regard to the evidence."
Grounds 1, 2 and 3 require leave pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (Criminal Appeal Rules) as no objection was taken by the applicant at trial. Ground 4 requires leave as it raises a question of mixed law and fact: s 5(1)(b) of the Criminal Appeal Act 1912 (NSW).

[4]

The Crown case

The Crown case can be summarised as follows.
The applicant and the deceased met while studying at teachers' college and married in 1982. They had three sons together and both worked as teachers. Early in their marriage, the deceased had an affair with a man named William "Billy" Mills which lasted "a few years". The applicant had expressed a strong dislike for Mr Mills and told a friend that Mr Mills was one of the main reasons the couple had moved from Sydney to the North Coast. The applicant's friend said, "he absolutely hated Billy Mills".
In March 2015 the applicant and the deceased were living in separate houses in the Grafton area. The applicant was living at premises in Lawrence (which the couple had purchased in 1987) and the deceased was living in a house in Riverdale Court, Grafton (which had been purchased in 2014). The house at Riverdale Court had been purchased with funds the applicant inherited from his late mother. The applicant told police he paid "every single red cent" for the Riverdale Court house, and their intention was for him to renovate the Lawrence house so that they could rent it and the two of them would live in the Riverdale Court house together. He said that all their belongings had been moved to Riverdale Court and he had been sleeping on an airbed in the Lawrence house. The applicant said that when he renewed his driver's licence the deceased said to make sure his address was recorded as Riverdale Court. He also said that the deceased had recently thrown "a spanner in the works" by saying that she did not like the Riverdale Court house and wanted to move back to Lawrence with him. The applicant told police their relationship had been "good".
The deceased confided in a number of friends with respect to the state of her marriage. These confidences were in stark contrast with the applicant's portrayal of the relationship in his statements to the police. The deceased had told her close friend, Ms Kennedy, that she wanted to live alone at the Riverdale Court premises and her marriage to the applicant was over. The deceased regularly sent Facebook messages to Ms Kennedy regarding her relationship with Mr Mills and her marriage to the applicant. These messages became Exhibit A. Some significant entries are set out in full later in these reasons. For present purposes it is sufficient to observe they indicated that the deceased had on several occasions tried to discuss ending the marriage with the applicant but he refused to accept it or talk about it with her. In January 2015 the deceased wrote, "… tried to discuss it last night … told him we r finished n just friends but he said don't want to talk about breaking up". On 1 March 2015 the deceased messaged Ms Kennedy saying "Oh no john is on phone n asked where I stayed sat night. So I said Billy's." Ms Kennedy said that this referred to a weekend the deceased had spent in Sydney celebrating her 55th birthday with Mr Mills. The deceased said she was not going to divorce the applicant but wanted to separate from him and "do her own thing". She told Ms Kennedy she had sought advice from an accountant because she wanted to be financially independent.

[5]

The days preceding the disappearance of the deceased

The deceased attended a course in Sydney from Wednesday, 11 March to Friday, 13 March 2015. Mr Mills was at that time in Coffs Harbour for a touch football tournament. On Friday, 13 March the deceased flew from Sydney to Grafton and then drove to meet Mr Mills at Coffs Harbour. They had dinner with Ms Roach and stayed at her house in Coffs Harbour. The deceased told Ms Roach over dinner that she had told the applicant not to visit the house at Riverdale Court that weekend as "Billy was coming up". The deceased said the applicant didn't respond and it was "as if she hadn't said anything".
On Saturday, 14 March 2015 the deceased drove Mr Mills to his accommodation in Grafton and then visited her father in Lawrence. She played tennis in the afternoon and exchanged text messages with Mr Mills throughout the day. The deceased left the tennis courts at around 5:40pm, returned to Riverdale Court and then met Mr Mills and his friend Mr Weatherall at the Good Intent Hotel at South Grafton.
The applicant was seen at the Riverdale Court premises on Saturday, 14 March, painting a planter box and retaining wall in the front yard. At about 6:45pm he was again seen at the premises.

[6]

The night of the deceased's disappearance

At about 7:15pm on Saturday, 14 March the applicant drove to central Grafton and withdrew money from an ATM. He then made several calls to the deceased. The applicant told police that the deceased said she was at a pub in Grafton with "some people [he] didn't like" including Mr Mills and that she wanted them to stay overnight at Riverdale Court. The applicant said he told the deceased to "tell them to get a room … they're not staying here … I'm going to stay here tonight". The applicant told police that he drove around various hotels in Grafton looking for the deceased and he said, "I suppose all husbands do this". He said that he saw the deceased's car parked outside the Good Intent Hotel but he did not go inside. He said he called the deceased again to say, "he's not staying here … I don't want a bunch of drunks there specially [sic] … people I don't like." The applicant told police he then drove to Riverdale Court and parked his car in the garage (rather than outside the house), where the deceased would normally park her car.
Mr Mills said that after leaving the Good Intent Hotel, he and the deceased ordered takeaway food and went to Mr Weatherall's house. Mr Weatherall's wife estimated that the deceased and Mr Mills left their house at around 11pm.
Mr Mills told police that when he and the deceased arrived at Riverdale Court all the lights were off in the house. The deceased opened the garage door and saw the applicant's ute parked in the garage. She said, "shit, John's here." Mr Mills said he told the deceased not to panic and asked if she could drive him back to Mr Weatherall's house, which she agreed to do. Mr Mills stayed at Mr Weatherall's house that night and did not see the deceased again.
Police obtained data from the mobile phones of the deceased and the applicant for the period of 14-15 March 2015. Mr Chang, a Senior Technical Specialist from Optus, gave evidence about this data. He explained that a phone will correspond ("ping") with a base station when it receives a call, when it is turned on, when it moves from one area to another, or for "periodic reporting" which occurs approximately every hour if the phone is turned on but not being used.
The mobile phone data indicated that at 12:35am on Sunday, 15 March the deceased's phone pinged off a station covering the Riverdale Court area. The applicant's phone pinged in an area near the Riverdale Court house at 3:17am. The deceased's phone had been pinging off a similar coverage area near Riverdale Court between 1:35am and 3:04am.

[7]

Post-offence conduct

On Sunday, 15 March 2015 at 8:10am, the applicant began sending text messages and making calls to the deceased's phone. Three of those messages were as follows: "[8:12am] leaving now to mow. Make sure they have gone. [9:18am] got here at 9 as I said. Pleased to see them not here but where are you I found the front door wide open what's going on. [8:06pm] still got the shits with me. I've been ringing all day. I'll be there in the morning to mow. Ring me im. getting tired of calling."
The applicant arrived at Riverdale Court at 9am on Sunday, 15 March but did not mow the lawn. The neighbours found it unusual for the applicant to be there so early on a Sunday morning.
On Monday, 16 March 2015 the applicant attended the school where the deceased worked and said he believed the deceased was missing. Ms Simpson, who worked at the school, asked how the applicant knew she was missing and whether he had phoned any hospitals, to which he said he had not. She suggested he call the local hospitals and provided the applicant with the relevant phone numbers. The applicant did not make any enquiries at the local hospitals, nor did he contact any friends of the deceased or notify her father that he believed she was missing. The applicant had contacted his sons on Sunday, 15 March to ask if they had heard from the deceased but did not contact them again before reporting the deceased as missing on Tuesday, 17 March 2015.
The Crown relied on "13 different versions" given by the applicant about the events of 14-15 March. Those versions were as follows.
On Monday, 16 March when the applicant visited the school where the deceased worked he told the school principal that he had not seen the deceased all weekend but had spoken to her on the phone and said "Don't bring Billy back to the place." He said he was worried the applicant would bring him back to Riverdale Court so he parked his ute in the garage (where the deceased would normally park) so that when she arrived she would see his ute and Billy would be discouraged from staying. He said that later on he heard the garage door open and close. When he went to the garage his car was still there but "Sharon was nowhere to be seen".
After visiting the school on Monday 16 March, the applicant went to the Grafton Police Station and spoke to Senior Constable Bird. He told Senior Constable Bird that the deceased "turned up with this bloke so I got a bit upset and told them all to fuck off". He said that the deceased left and that was the last time he saw her.

[8]

Other circumstantial evidence

On 17 March 2015 crime scene warrants were executed at the Riverdale Court and Lawrence premises. The deceased's handbag and mobile phone were not found. Her car was parked inside the garage at the Riverdale Court premises. It was an agreed fact that there were only ever two keys to the deceased's vehicle. One was found by police in a dresser at the Riverdale Court premises. The other key was not found when the premises were searched.
The applicant told police on 2 April 2015 that he found the deceased's car key "a couple of days" after he regained access to the Lawrence house on 19 March 2015. He said that he searched "every little nook and cranny" in the house because he was "paranoid the house was bugged". He then found the keys that he "used … to drive the car into the garage". He decided to make a record of this as he thought he was being "stitched up". He then provided the car key to his solicitor.
The applicant's solicitor gave evidence that he had been given the key one week prior to 15 April 2015 and the applicant told him, "I've told the police about these keys but they're not interested". He stored the key in his office and subsequently provided it to police. There was no record of the applicant offering the key to police before his solicitor provided it.
The deceased's "nightie" was found in the footwell of the applicant's ute. The applicant told police that he used it for cleaning his vehicle.
The applicant was observed to have an injury to his right hand shortly after the relevant events (the applicant was also observed to be right-handed). The applicant told his general practitioner, Dr Rajikumar, and two radiographers that he sustained the injury while gardening. Dr Rajikumar observed the injury on 26 March 2015 and noted a significant amount of tenderness and swelling on the applicant's right hand. The applicant also had a 3cm laceration on the back of his right hand, at the base of the knuckle on his fourth finger. On 1 April 2015 the applicant returned to Dr Rajikumar to discuss the X-ray results, which indicated a fracture to the applicant's fifth metacarpal (the bone between the knuckle and first joint of the little finger). The applicant gave some detail as to how he sustained the injury, stating that he was trying to lift a heavy stone in the garden which ended up crushing his right hand on the ground, whereupon a Stanley knife that was lying on the ground caused the laceration. The applicant said this happened four weeks ago and he put in a suture which he removed himself. Dr Rajikumar believed the laceration looked about two or three weeks old and was consistent with an injury occurring on 14 March 2015. He believed the applicant's account was inconsistent with his injury but "possible".

[9]

The defence position

No evidence was called by the defence. As noted above, the primary position taken by the defence was that the applicant had nothing to do with his wife's disappearance. In cross-examining the Crown witnesses, counsel for the applicant suggested that his sons were mistaken in their recollections of the applicant's accounts. The defence at one point sought to cast suspicion on Mr Mills in relation to the deceased's disappearance though ultimately this was explicitly disavowed. Significantly for the purposes of this appeal, however, in his address, discussed further below, defence counsel made clear the obligation of the Crown to prove each element beyond reasonable doubt.

[10]

Crown address

The Crown relied on the history of animosity between the applicant and Mr Mills as evidence of motive. The Crown also relied on the applicant's statements about the marriage, contradicted by statements made by the deceased, as evidence relevant to motive and the couple's relationship. The Crown noted that the applicant told several people that he did not want Mr Mills staying at the Riverdale Court house because he had paid for "every red cent" of the property. He had been observed coming and going from the house on Saturday and admitted to driving around Grafton looking for the deceased. The Crown relied on the applicant's "13 versions" as lies and on his other post-offence conduct as revealing a consciousness of guilt. The Crown referred to the mobile phone evidence and submitted that it was consistent with the applicant and the deceased's body moving north of Grafton, likely in the course of the applicant disposing of the deceased's body.

[11]

Defence address

Counsel for the applicant commenced his closing address in the following way: "Before I commence or start on the accused's account in relation to these events let me please almost as an aside make this remark. You heard the Crown Prosecutor in a very thorough address outline the Crown's case to you but you might have thought that in that very thorough address she almost skipped over the element of proof that involves proof of intent to cause death or really serious bodily injury. The Crown has to prove that element ladies and gentlemen just like all the rest, it's not our case of course that the accused was involved in the disappearance of Sharon Edwards, the [C]rown however bears the onus of proof of all elements of this offence and I remind you ladies and gentlemen that the Crown must [prove] that element like all beyond reasonable doubt and in considering your verdict in respect of this matter you won't of course put aside your experience of life and remember that human beings act for all sorts of reasons, that's why juries of course are used in our system. You might consider whether the Crown has fulfilled its onus in respect of that element leaving aside altogether the accused's case."
Counsel for the applicant went on to submit that the applicant's behaviour after his wife's disappearance was consistent with innocence and reflected his shock and grief in the situation. It was submitted that if the applicant had killed the deceased in the Riverdale Court premises on the night of 14 March 2015 the neighbours would have seen or heard something. In relation to the different versions given by the accused, it was submitted that they were not all inconsistent and discrepancies were potentially attributable to unreliability on the part of the witnesses. It was submitted that the applicant's account of his hand injury was "unlikely but possible" and there was "room for doubt" in the expert opinions regarding the likely mechanism of injury.

[12]

Summing up

His Honour set out the issues in dispute and noted that the defence case was "neutral" on the subject of whether the deceased was dead but it remained for the Crown to prove that beyond reasonable doubt. His Honour observed that the most significant matter in dispute was whether the applicant killed the deceased.
His Honour directed the jury as to inferences, expert evidence, hearsay and the onus and standard of proof. His Honour then directed the jury as to the elements of murder, the significance of the circumstantial case, lies and post-offence conduct.
During the lunch break, after the above directions were given, counsel for the applicant asked whether his Honour intended to leave an alternative verdict of manslaughter to the jury, to which his Honour replied in the negative. Counsel for the applicant then drew the Court's attention to the applicant's statements in which he described "wrestling" over the iPad and "slamming" the deceased on the floor. After the lunch break his Honour determined an alternative verdict of manslaughter would be left to the jury, on the basis that defence counsel had suggested that the Crown may not have proved the requisite intention and on the basis of the applicant's version involving a struggle over the iPad.
When his Honour resumed his summing up he noted that the Crown case was that the applicant was guilty of murder while the defence case was that the applicant did not kill her at all. His Honour then referred to the applicant's account in which he described a struggle over the iPad and then directed the jury as to the elements of manslaughter on the basis of unlawful and dangerous act. His Honour stated, in relation to the applicant's version involving a struggle, that: "If you thought this version of events might be true, it may be relevant to your assessment of whether the Crown has proved the essential element relating to intention, that the accused intended to kill or cause really serious bodily harm. If you were not satisfied that the Crown has proved that element, but are satisfied that the Crown has proved that a deliberate act of the accused caused, or substantially caused, the death of Ms Edwards, and that the deliberate act was one that was both unlawful and dangerous, then it would be open to you to find the accused not guilty of murder but guilty of manslaughter."
His Honour then summarised the parties' respective cases before concluding with a summary of the available verdicts. The jury then retired to consider its verdict.

[13]

Preliminary observations

Prior to addressing the specific grounds some general observations may be made about the approach to the appeal both with respect to the case run at trial and the absence of any request for the directions now said to have been required.
The grounds, based on complaints as to the directions and as to the reasonableness of the verdict, are all premised on the availability of a verdict of manslaughter. Inherent in each ground is an assumption that the applicant's responsibility for an unlawful and dangerous act which resulted in death was proved beyond reasonable doubt by the Crown. This was not the applicant's position at trial. That is, having gone to trial on (essentially) murder or nothing the applicant appeals to this Court with complaints of error (or at least third limb miscarriage) related to the possibility of a verdict of manslaughter.
As a general proposition (that is, without intending to say anything as to the merits of the grounds), it is entirely possible for this Court to find error or third limb miscarriage, not be satisfied the proviso to s 6(1) of the Criminal Appeal Act should be applied, but also, not be satisfied the verdict is unreasonable. That is because, in considering whether the verdict is unreasonable this Court must consider whether from the record, a doubt exists as to the guilt of the applicant. If so, the appeal will nonetheless be dismissed if the jury's advantage in having heard the evidence is capable of resolving that doubt: M v The Queen (1994) 181 CLR 487; [1994] HCA 63. Particular regard is given in this context, to the role of the jury as the "constitutional tribunal": Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [38]. In considering the proviso (a precondition of which is some form of miscarriage), if this Court is not satisfied of the guilt of the applicant to the requisite standard from the record or is otherwise of the view that there has been a substantial miscarriage of justice the appeal must be allowed. With respect to this Court's satisfaction of guilt beyond reasonable doubt, while the jury's verdict forms part of the record, unlike when applying the test in M v The Queen, the Court does not consider whether any doubt is resolved by the advantage held by the jury. Rather, this Court's capacity to be satisfied beyond reasonable doubt is impacted by the "natural limitations" inherent in proceeding wholly or substantially on the record: see Orreal v The Queen (2021) 96 ALJR 78; [2021] HCA 44 at [22], [41]. While the jury's verdict forms part of the record, where second limb error or third limb miscarriage is established, the weight to be given to the verdict will be affected by the nature of that error or miscarriage. Of course, if, independently of the strength of the case, there is a "substantial miscarriage of justice", the proviso will not apply and the appeal must be upheld even if the Court is otherwise satisfied beyond reasonable doubt of the guilt of the accused.

[14]

Rule 4.15, Criminal Appeal Rules

No request for directions was made with respect to any of the complaints made under grounds 1, 2 and 3. In those circumstances, r 4.15 of the Criminal Appeal Rules applies. Rule 4.15 directs attention to the manner in which the case was conducted at trial and the issues in dispute. Even in the absence of r 4.15 the approach at first instance would be relevant to whether the applicant can establish a miscarriage of justice. As Gaudron J said in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [26], quoting from the judgment of Fullagar J in Mraz v The Queen (1955) 93 CLR 493; [1955] HCA 59 at 514: "[26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question 'deprived the accused of a chance of acquittal that was fairly open'. The word 'fairly' should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on [the] basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open." (footnotes omitted)
Her Honour in support of this proposition referred to Doggett v The Queen (2001) 208 CLR 343; [2001] HCA 46 at [55], per Gaudron and Callinan JJ; and Suresh v The Queen (1998) 72 ALJR 769; [1998] HCA 23 at [6], per Gaudron and Gummow JJ.
Gaudron J's observations echo the earlier observations of Gleeson CJ in R v Birks (1990) 19 NSWLR 677 at 685, where his Honour referred to this Court having "a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates." His Honour later said, in Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9 at [9]: "A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. … It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel's decisions bind the client. If it were otherwise, the adversarial system could not function."

[15]

The relationship between the grounds of appeal

There is a close relationship between all the grounds of appeal. The applicant, at the hearing of the appeal, accepted that ground 1 is only necessary if ground 2 is not established. He also submitted that "ground 3 is the consequence of ground 1 being made out". He further submitted that if ground 2 is made out, ground 4, unreasonable verdict, is also made out.
Given the above it is convenient to begin with a consideration of ground 2.

[16]

Ground 2: was the post-offence conduct "intractably neutral"?

Ground 2 of the appeal is in the following terms: "The trial judge erred by not holding that the post-offence conduct including lies, said to demonstrate consciousness of guilt, was 'intractably neutral' as between murder and manslaughter and by not directing the jury accordingly."
There was some argument on the appeal directed to the question of whether this was properly a ground asserting error within the second limb of s 6(1) of the Criminal Appeal Act, or if the real complaint was of miscarriage of justice within the third limb of that provision. The framing of the ground, in terms of "erred by not holding", is arguably inapposite in circumstances where his Honour was not asked to rule on the issue. While I am inclined to the view that a "wrong decision of any question of law" is not inevitably predicated on a request for a ruling (cf Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 at [72] per McHugh J, noting his Honour's remarks there were obiter and that Kirby and Gaudron JJ expressly disagreed with this part of his Honour's reasons; see also Greenhalgh v R [2017] NSWCCA 94 at [7]-[8] per Basten JA). Ultimately, in the circumstances of this case it is unnecessary to resolve the issue. The question posed by the ground is whether the evidence of post-offence conduct was "intractably neutral". In my view it was not.
The argument with respect to this ground takes as its starting point the jury's finding that the applicant was responsible for a voluntary act which was a substantial cause of his wife's death. The first step in the argument is that, having killed his wife, an awareness of having done something seriously wrong, certainly criminal (amounting in the mind of a criminal lawyer to an unlawful and dangerous act), and with serious consequences, would provide in the applicant, a strong motive to avoid responsibility for that act. The second step is, this being so, the post-offence conduct was not probative as to proof of murder as opposed to manslaughter (or, in the words of the ground was "intractably neutral" as to this issue). The first step can be accepted. The second step, however, cannot. That the applicant's post-offence conduct was potentially consistent with a desire to avoid responsibility for an unlawful and dangerous act that resulted in death does not mean that the evidence was "intractably neutral" as between murder and manslaughter.

[17]

Ground 1: Directions on the use of lies

My rejection of ground 2 requires that I consider ground 1. This ground is in the following terms: "The trial judge erred when directing the jury as to how they could use evidence of post-offence conduct including lies, said to demonstrate consciousness of guilt, by not directing the jury: a) that the conduct could be used in respect of the manslaughter count as well as the murder count; and b) that they could only use the evidence as an indication of consciousness of guilt of murder if they were satisfied that the lies were not told out of a consciousness of guilt of manslaughter."
While the ground is expressed as if manslaughter was included on the indictment nothing turns on this. Having regard to the view I have taken on ground 2 the post-offence conduct was relevant to proving the applicant was responsible for the act causing death and to revealing the applicant's state of mind at the time. The essence of this ground is that further assistance was required to be given to the jury as to the use of the post-offence conduct given these different uses and that, in relation to the second use, the evidence was also consistent with (even if not equally consistent with) something less than an intention to kill or cause really serious injury.
The applicant stressed that, at the time the directions on lies and post-offence conduct were given, there had been no suggestion that manslaughter would be left to the jury. Thus, it was submitted, no consideration was given by his Honour to framing the directions on lies and post-offence conduct so as to distinguish between evidence probative of murder and evidence probative of manslaughter. It was, consequently, submitted the directions were deficient in the manner set out in the ground. In this regard it can be accepted that the directions, while immune from criticism at the time they were given having regard to the issues as they then stood, did not specifically address potential uses of the evidence with respect to the specific elements of murder as opposed to the lesser offence of manslaughter. The question raised by this ground is whether further directions were required having regard to the subsequent determination that manslaughter should be left to the jury.
As noted above, there was no issue on the appeal that the actions of the applicant militated against an innocent killing. Consistent with this it has never been suggested that, if the applicant was responsible for the killing, a purely accidental killing could not be excluded. That is, it was accepted the evidence established, that if the applicant killed the deceased it was by, at least, an unlawful and dangerous act. It was submitted that to use the evidence for proof of a state of mind consistent with murder, the jury was required to consider whether, and to what extent, it could go beyond its use to prove manslaughter. It was submitted that assistance was required in this regard.

[18]

Ground 3: A failure to direct in a "fair and balanced way" as to reasonable hypotheses consistent with manslaughter

As noted above, the applicant submitted in oral argument that ground 3 was a consequence of the failure complained of in ground 1. It follows from my rejection of ground 1, there was failure as complained of in ground 3. Nonetheless, it is appropriate that the ground be addressed separately.
The jury was directed that the version given by the applicant to Joshua Edwards amounted to evidence of an assault capable of being regarded as dangerous within the meaning of that term for the purposes of unlawful and dangerous act manslaughter. In this context his Honour directed the jury that if it regarded this evidence of an assault as a reasonably possible version of events it would be "relevant to your consideration of whether the Crown has proved, beyond reasonable doubt the element of intention [for murder]" and then directed the jury as to the availability of a verdict of manslaughter in the event it had such a doubt. The jury was, however, further directed that a verdict of manslaughter was not dependent on finding that the version given to Joshua Edwards was possibly true.
In the course of re-directions his Honour told the jury: "There are two other things I wanted to raise with you before you go. The first matter relates to the question of the possibility of manslaughter being considered by you. I just wanted to clarify something that I think I made clear, but I am just not sure that I did and I want to ensure that I did. This is the possibility of you returning a verdict of not guilty of murder but guilty of manslaughter. I referred to the evidence of what Joshua Edwards said the accused said on the morning of 2 April 2015 and I said something to the effect that if you thought that that was a version that might reasonably be true, it may be relevant to your consideration of whether the Crown had proved the element of intention, that is intention to kill or at least cause really serious bodily harm beyond reasonable doubt. I just want to stress two things in relation to it. Accepting that that might be a reasonably true version of events, does not necessarily mean that you would have a doubt about whether the Crown had proved the intention element, but it could be relevant to your consideration of it. But even if you do not accept that version as one that could reasonably be true, it remains that you have to be satisfied by the Crown that it has proved that element of intention. If you have a doubt about that - Mr O'Connor submitted that you should and you heard the Crown's submission as to why you should not - then you would, if you had a doubt about whether the Crown had proved that, you would then consider whether the Crown has proved, beyond reasonable doubt that there was an unlawful and dangerous act by the accused, deliberately done, that caused or was a substantial cause of the death of Ms Edwards. So that evidence of Joshua Edwards is relevant, but the possibility of you considering manslaughter is not dependent on you accepting that. It was, is, a matter generally relevant to whether the Crown has proved the intention element."

[19]

Ground 4: Unreasonable verdict

The test to be applied to a complaint that the verdict is unreasonable within the first limb of s 6(1) of the Criminal Appeal Act was explained in Pell v The Queen at [43]-[45] as follows: "43 At the commencement of their reasons the Court of Appeal majority correctly noted that the approach that an appellate court must take when addressing "the unreasonableness ground" was authoritatively stated in the joint reasons of Mason CJ, Deane, Dawson and Toohey JJ in M. The court must ask itself: "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty". 44 The Court of Appeal majority went on to note that in Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) elucidated the M test in these terms: "But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must as distinct from might, have entertained a doubt about the appellant's guilt." (footnote omitted; emphasis in original) 45 As their Honours observed, to say that a jury "must have had a doubt" is another way of saying that it was "not reasonably open" to the jury to be satisfied beyond reasonable doubt of the commission of the offence. Libke did not depart from M." (footnotes omitted)
In Dickson v R (2017) 94 NSWLR 476; [2017] NSWCCA 78, Bathurst CJ (with whom Johnson and Fullerton JJ agreed), relevant to the present case noted (at [86]): "In considering the issue in a case such as the present where the Crown relies on circumstantial evidence, it is important to bear in mind that the task of the appellate court is to consider and weigh all the circumstances in considering and deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion: R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [46]-[48]."
Here, as noted above, the complaint that the verdict is unreasonable does not argue the applicant should have been acquitted outright. The ground is premised on the applicant's responsibility for the killing having been proved. The complaint is limited to the contention that the verdict of murder is unreasonable as manslaughter could not be excluded. The question raised is whether it was open to the jury (in the sense that expression is used in s 6(1) of the Criminal Appeal Act) to find beyond reasonable doubt that the applicant acted with an intention to kill or cause really serious injury.

[20]

The version recounted by Joshua Edwards, and other related versions

The applicant recounted a version of events to his sons, Joshua and Zac, which, as set out above, suggested a struggle over an iPad, in the course of which, according to Joshua, the applicant said he "slammed her on the floor and she hit her head". The applicant having given this version was also said to have repeated, "I should have walked away".
As noted above, it was evidence of this version of events that prompted the trial judge to leave manslaughter to the jury. It does not follow that it was a version of events that cannot be eliminated as a reasonable possibility, or even one that compels a conclusion of manslaughter if accepted.
If this version of events is accepted as being open as a reasonable possibility, it follows that the events were the result of a spontaneous eruption of violence. It may also be accepted that, on this version, the result of the violence (that is, death) was not intended and the version therefore provides some support for a verdict of manslaughter.
Conversely, however, the language of "he slammed her on the floor" could support an inference of an intention to inflict really serious injury. However, if this was the totality of the evidence I would not accept that such an inference could be drawn beyond reasonable doubt. It is, of course, not the totality of the evidence and it needs to be considered and weighed against all the evidence in the case.
Prior to considering, if the version recounted by Joshua, if true, is inconsistent with murder, it is convenient to consider whether the version can be excluded as reasonably possibly true. This requires consideration of the entirety of the particular account. Importantly, in this respect, the applicant said that, having hit her head the deceased "got up and went to bed". This is not consistent with the other evidence in the case insofar as it suggests this was the end of the interaction with the deceased or her body and consequently raises doubts about the reliability of the account given to Joshua.
Further, quite apart from whether the use of the word "slammed" excludes an action with something less than an intention to inflict grievous bodily harm, the other party to the conversation, Eli, did not suggest the applicant used the word "slammed" or indeed make any reference to the deceased hitting the floor.

[21]

Inference of an intention to inflict, at least, really serious injury

Having excluded the version recounted by Joshua as a reasonable possibility, it is necessary to consider whether the whole of the evidence supports an inference, beyond reasonable doubt, that the applicant acted with an intention to kill or at least inflict really serious injury. I will consider first the evidence that assists the applicant before considering that which points in the other direction. Some evidence is, of course, ambivalent or cuts both ways.

[22]

Evidence supporting the contention an intention to inflict at least really serious injury could not be proved beyond reasonable doubt

[23]

The manner in which the Crown put its case

It is convenient to repeat what the Crown prosecutor said in her closing address: "The Crown case is that the accused was so angry and so bitter that yet again this man Billy Mills had come into his wife's life and threatened the comfortable future that he believed he had with her, owning their three properties and their joint assets which, according to him, he paid for, and that he assaulted her with such force that he caused or substantially contributed to her death. Whether he hit her, punched her, strangled her or all three, we do not know. But what the evidence does show is that this accused had the motive and the anger and the rage to have caused her death and, in doing so, clearly had the intention to cause her, at the very least, really serious injury. To have had that intention at the time of doing the act that killed her doesn't exclude him perhaps regretting at a later stage what he did or even feeling sadness at a later stage at what he'd done, but he was so enraged at the moment of his physical act, the Crown suggests, he clearly intended to cause her really serious injury, at the very least, if not to kill her. If this had just been an accident, members of the jury, you might expect he would not have gone to such lengths to dispose of her body such that it has never been found, nor would he have gone to such lengths in attempting to cover his tracks and set up an appearance of innocence with the text messages and the like, as well as initially lying to people about having had no contact with the deceased whatsoever on the night of Saturday 14 March 2015. Members of the jury, there can be no doubt that Sharon Edwards is dead. She had absolutely no reason to disappear and every reason to stay living the wonderful and full life that she had[.] It was this accused who came out of the police station on 17 March 2015 after being interviewed about his wife's disappearance and said to his sons, 'I'm sorry. I'm so sorry.' It was this accused who told lies about what had occurred on the night his wife disappeared. It was this accused who had the motive and the anger to commit this act, and it was this accused who said in the hearing of his son Josh, a son who desperately wanted to believe his father had nothing to do with his mother's death, 'I should've just walked away. I should've just walked away'."
The argument that the applicant was angry with the deceased gives support to him having assaulted her. Many assaults, while committed in anger, are not committed with an intention to kill or inflict really serious injury. As discussed above, at the time the Crown prosecutor addressed, manslaughter had not been raised as an issue, cf Sheen v R (2011) 215 A Crim R 208; [2011] NSWCCA 259 at [82]-[84]. While the Crown prosecutor submitted the applicant was guilty, based on proof of all elements including the requisite mental element for murder, in fairness, as detailed in relation to ground 1 above, the address was directed to establishing responsibility for the killing, it being, essentially, assumed that proof of the requisite mental state necessarily followed. It would be wrong to place too much weight on the Crown prosecutor's address to support a contention that manslaughter was not excluded. It remains necessary to consider the actual evidence.

[24]

The injury to the hand

The Crown relied upon the injury to the applicant's hand to prove his involvement in the act or acts causing death. That injury was, of course, consistent with the applicant having struck a blow or blows to the deceased. Insofar as it established an assault by the applicant it suggested that he did not use a weapon. Had the applicant, who is not a large man, acted in accordance with a plan to kill, or even inflict grievous bodily harm on his wife, it was more likely that he would have availed himself of some form of weapon to do so. This evidence is, therefore, arguably consistent with a spontaneous outbreak of violence which did not involve the formation of an intention to inflict at least really serious injury.
Against this, while there was no evidence as to the amount of force that might have been expected in order for the applicant to break his fifth metacarpal, the jury was entitled, as am I, to conclude that, as a matter of ordinary human experience, the level of force must have been significant. This undermines, to a large extent, the force of this evidence in supporting the contention the verdict of murder is unreasonable. In this regard, the observations in Baden-Clay at [78] are relevant. The Court said: "Finally, the jury could take into account the absence of any signs that a weapon was used to cause the death of the deceased, and make their own judgment about the respondent's intention at the time, bearing in mind the difficulty involved in killing a human being without the use of a weapon unless the act of killing is driven by a real determination to cause death or grievous bodily harm."
While the above observation is arguably less apposite to the present matter given that, in Baden-Clay, the body was located with an absence of skull fractures which militated against an indirect death as a result of a fall, it does not lose all force.

[25]

The evidence did not establish that the applicant wished to be rid of his wife

There was evidence of the state of the relationship between the applicant and the deceased. Clearly it was not good.
However, as noted above, unlike in Baden-Clay, there was no immediate imperative driving a need for the applicant to be rid of his wife. If anything, he wanted to be rid of Mr Mills. But to say that this feature of the case is more or less compelling than some other case cannot answer the question posed. Whilst the applicant may have wanted his marriage to continue, and therefore he did not want to be "rid of her", as was the situation in Baden-Clay, he must have realised that, whatever he wanted, the marriage was over. He was clearly angry about this. That, of course, does not mean that he intended to kill his wife, or to inflict serious harm on her. However, there was also evidence of the applicant's concerns around the end of the relationship which are analysed further below in the context of the evidence tending to support an inference of an intention to inflict, at least, really serious injury.

[26]

Evidence supporting the contention an intention to inflict at least really serious injury was proved beyond reasonable doubt

[27]

Evidence of post-offence conduct

The evidence of post-offence conduct has been discussed in detail above. As there explained, that evidence was not intractably neutral. It was more consistent with the applicant having committed murder than with an offence involving some lesser state of mind. While on its own I would hesitate to find this evidence established the requisite intent beyond reasonable doubt, it is not to be considered on its own.

[28]

Evidence of planning

Evidence of planning, if present, would suggest an intention to inflict at least reasonably serious injury if not to kill. Evidence that the applicant planned to assault the deceased was inconsistent with a scenario in which in the course of a spontaneous assault the applicant assaulted the deceased causing greater injury than intended. Put another way, a planned assault not intending to cause serious injury was unlikely. There was some evidence suggestive of planning, as discussed below.

[29]

The location of the ute

On the hypothesis we are asked to consider, the deceased was killed in the house at Riverdale Court and the applicant disposed of the body. The overwhelming inference is that the applicant used his ute to dispose of the body. The location of the ute is significant in this regard.
The applicant told police in the recorded interview on 17 March 2015 that he had parked his ute in the garage. Mr Mills (who was presumably not familiar with the applicant's vehicles) recalled seeing the ute in the garage when he arrived at the house with the deceased. He was specific in his recollection which included seeing tools in the tray. In an exchange with an officer at the counter of the police station in the days after the disappearance, the applicant told the officer he put his car in the garage. He also told this officer that the deceased came home with friends and when he did not agree to them staying she went to bed cranky. He told this officer he then moved his ute from the garage and put the deceased's car in the garage before returning to Lawrence. This did not provide an explanation for why the applicant put his ute in the garage.
The above evidence compels a conclusion the applicant parked the ute in the garage prior to the deceased returning to the house on the night of Saturday, 14 March.
There was evidence that it was unusual for the applicant to park in the garage. Evidence was given by a neighbour, Mr Wigg, who lived opposite the Riverdale Court residence. He said the applicant drove a white HiLux utility and a dark Subaru Forester. He said that he saw the applicant at the house once every couple of weeks, doing the lawns or gardening. He said the applicant would normally park the utility on the grass next to the driveway and the Subaru on the driveway. He said he could recall one occasion when he saw the ute parked in the garage when the applicant was "just unloading something but normally it would be outside". Another neighbour, Mr Perks, confirmed that the applicant usually parked his vehicles on the driveway or grass and that, when the garage door was up, there would usually be a red Holden Cruze in the garage (which was the deceased's car). While there was inconsistent evidence given by neighbours about whether the applicant was at Riverdale Court with the ute or the Subaru on 14 March (Mr Wigg referring to the Forester and another neighbour, Ms Cottone recalling seeing the ute), the evidence that it was the ute, which included statements by the applicant, was reasonably clear.

[30]

The lights were out

The evidence established that, when the deceased returned to the Riverdale Court premises with Mr Mills, the lights were out. This might be thought to have increased the possibility the deceased, with Mr Mills, would enter the house, where the applicant was waiting. Of course the deceased was likely to become aware of the applicant's presence as a result of the ute being in the garage (as in fact occurred). Whether the applicant overlooked this eventuality or there is some other explanation for turning the lights out cannot be known.
It was the presence of the applicant's ute in the garage which caused the deceased to leave, in order to take Mr Mills back to Mr Weatherall's house. At this point it is not known whether the applicant expected the deceased to return, what the state of the lighting was when she did return, or what the applicant was doing at that time. Nonetheless, while it is not possible to know the precise reason the applicant turned out the lights prior to the deceased first returning to the house, it does suggest some planning with respect to the deceased's arrival.
Further, the applicant had told the deceased directly not to bring Mr Mills (or anyone else) back to Riverdale Court. He may therefore be thought to have had an expectation the deceased would return there alone. If this was the case, he was waiting for her in darkness with the ute in the garage.

[31]

Don't bring him back here

The applicant did not want Mr Mills to come back to the Grafton home. By this stage he must have realised he could not stop the deceased and Mr Mills spending time together. On one view, the applicant may not have wanted Mr Mills there so he could confront the deceased alone. A more benign view is that, whatever the state of the relationship between the deceased and Mr Mills, the applicant could not countenance them spending the night together in a house he had some claim to.

[32]

The efficiency of the clean-up and disposal of the body

While evidence of blood, which was overwhelmingly likely to have been the deceased's, was found on the headrest of an armchair, the quantity and location (including the fact that it was the deceased's home) were not such that it could be concluded the blood was connected with the deceased's death. Accepting that the applicant killed his wife when she returned to Riverdale Court it follows that the deceased died in circumstances which either left no significant forensic evidence, or that the applicant was able to successfully clean the area so as not to leave any significant forensic evidence. It is also the case that the applicant was able to dispose of the body in a manner such that it has never been found.
As to the absence of forensic evidence, given the regular presence of both the applicant and the deceased in the house, items like DNA and fingerprints were neutral. The failure to find (significant) evidence of blood is, however, suggestive of either a killing that did not involve significant bleeding or very thorough cleaning. It is difficult to place weight on the former - for example, a skull fracture from a fall could cause death without significant bleeding as could deliberate strangulation. Thorough cleaning after killing the deceased, is, however, suggestive of a composure not consistent with the panic that might be expected in the case of unintended death. It might also be noted that some of the applicant's statements included innocent explanations for the presence of both his and the deceased's blood, suggesting the applicant expected the police to find such blood.
With respect to the disposal of the body there was evidence that the applicant was familiar with the surrounding wilderness areas in which there were numerous remote areas, swamps and dams that could not all be searched. While, for the reasons discussed above, the applicant's willingness to dispose of the body was not neutral, it must be accepted that it would not have been overly difficult for him to do so (supporting the possibility that he could have done this without planning).

[33]

Duct tape

On 18 March 2015, the applicant told his sons Joshua, Zac and Eli, in the context of the police having taken possession of the Lawrence house, that "the police will find duct tape at home". Joshua said the applicant was worried about this. The comment did not make sense to the applicant's children. On the scenario now posited there is an implication the duct tape is connected with the offence. Whilst it is suggestive of a level of organisation it is, however, difficult to know whether it was organisation that preceded the killing of the deceased.

[34]

Motive - relationship/ financial

The evidence was that the deceased regarded the marriage as over and had made this clear to the applicant. The Crown case was that the applicant did not want to face her leaving him for Mr Mills for "emotional and/or financial reasons".
There was strong evidence the applicant was not willing to accept the relationship was at an end. The evidence also suggested the applicant resented the prospect of financial loss as a result of the separation.
In Facebook messages to her closest friend, Kristine Kennedy, in late 2013, the deceased discussed her relationship and hopes for a future with Mr Mills. By the end of 2013 the situation had been revealed to the applicant. The deceased sent the following messages to Ms Kennedy (included in Exhibit A): 17.12.2013 7:55pm U beta take care of yrself just rest. John knows I saw billy. He read my texts. Thank goodness I deleted the provocative ones. 4.2.2014 6:09pm Well had the talk, He hit the roof n said he wont finish the renos n will pull it down. Said he wont buy me out. I said well the solicitor will get the money. He said he knew this would happen when Ariel left. Then after a while he started to be super nice n asked me not to make any decisions till the renos are finished. I said im going to give him a time frame cos I don't want it dragging on. Billy asked if I mentioned him to john I said no even if I hadn't reconnected with him I still have to do something. 28.3.2014 6:33pm Wd u believe John took me to dinner last night then the pics… He is being superrrrrr nice. But I haven't given in. He asked me if I'll ever make love with him again n I said well it all depends what u do with this house I like n if u make a genuine offer. Don't worry darl I'm strong. Anyway I feel like id be cheating on billy. I only want him She said not to tell the boys cos everything will just fall into place when I move but of course big mouth dad blabbed to josh the other day. 29.06.2014 8:33am I don't think he mentioned b told told josh I'm leaving John. I was just going to let things sort themselves out but josh is very good about it. I'm just telling people that I'm moving in while he finishes renos so colleagues n acquaintances don't need to know the real truth yet 13.1.2015 5:25pm …im gonna retire in Forster. I just love it and it brings back memories. Its half way too. CK: Ok I'll check, anymore about John? 23.1.2015 4:28pm SE: What about him? CK: Have u said anything about BB to him. SE: Nah he wont listen to anything about us not being together. SE: J just turned up CK: Ok ok good luck, did u no he was coming? SE: No…. bit of a worry CK: Mmm he must be checking up??? SE: I'd say so 2.2.2015 8:53pm CK: How did bb go at specialist SE: haven't spoken yet. He's gonna ring afer 9 but now I'll have to turn my phone off CK: Great, but did u ask J y he came over SE: Said he needs to mown on the morning n has to get food CK: Yeah right SE: Mmm we'll see what he tries tonight. 1.3.2015 8:41pm Oh no john is on phone n asked where I stayed sat night. So I said Billy's

[35]

Mr Mills confirmed his relationship with the deceased and said she had told him that she had told the applicant about it and the applicant "went ballistic". It was also apparent the deceased was acting on her plans to end the marriage. She told a friend, Alison Roach, that she had obtained advice from a solicitor about separation (and that she had done so was confirmed by the solicitor). The deceased had told other friends such as Dianne McGavigan that her marriage was over and she regarded her future as being with Mr Mills. Another friend, Ms Watts, said that the deceased told her that she had told the applicant that she was staying with Mr Mills when in Sydney. The deceased also said something similar to Ms Abrahall but also told her that the applicant "got very angry" when the deceased said she was seeing Mr Mills in Sydney and "had the shits ever since".
The deceased's father, Mr Wall's evidence was that the deceased thought the Grafton house would be her share of the estate. This was despite the fact the Grafton house was bought with money the applicant inherited. Mr Wall explained that this was because the deceased had contributed to the Lawrence property where the applicant lived.
Ms Kennedy also gave evidence that the applicant called her on Tuesday, 17 March, in a distressed state, and told her the deceased was missing. He also told her he had gone through the deceased's things and that the deceased had been having an affair with Mr Mills for two years, complained about "how much money she had been spending", and that "she was spending his money, that she had lied to him on many occasions". He told Ms Kennedy "All her life that she's lied to him". She also said that he told her that he had spoken to the deceased on the Saturday night and the deceased had told him she was with Mr Mills and he had said "well don't you bring him back here", referring to Riverdale Court.
On Monday, 16 March the applicant went to the school where the deceased taught and spoke to the principal, Matthew Hankinson, apparently looking for the deceased. Mr Hankinson described him as slightly agitated and a bit nervous. He gave the following evidence of their interaction: "… he hasn't seen her this weekend. He double-checked that, look, she did go to the conference with me, you know, that wasn't a fib, and I said, "Look, no, no. We went to the conference. She came home Friday afternoon and then she was heading down to play touch football." He indicated that he knew about the touch football match and that he was concerned that Sharon may bring the group back to his - sorry, to their residence in Grafton. He was highly concerned that a person called Billy was going to come back to the house and he was quite adamant he didn't want Billy to go to the house because apparently they'd had a previous affair, stated by John. I was not aware of that. And then ascertained, "Look, you know, I don't want him in that house. Sharon hasn't paid a cent towards that house, so he shouldn't be there."

[36]

Is the mental element for murder established beyond reasonable doubt?

While the inference that the applicant was responsible for the deceased's death is overwhelming, it is not possible to know how the deceased was killed. It does not, however, follow that no conclusion can be reached as to the applicant's mental state at the time of the killing.
A number of circumstances point to a conclusion that the applicant intended, at least, really serious injury. The various scenarios connected with planning, such as the parking of the ute in the garage, and an economic motive are, of course, consistent with an intention to kill. The best case for the applicant is an unplanned outburst of violence in which the deceased was killed with no intention to inflict really serious injury. In my view the injury to the applicant's hand (and the associated inference that there was no weapon used) provides the strongest support for such a possibility (noting that it is for the prosecution to exclude any such reasonable possibility, not for the applicant to establish it). Ultimately, however, even if it is accepted that it is reasonably possible death was caused by an unplanned assault, viewed in the context of all the evidence, I am satisfied that any such assault involved an intention to inflict, at least, really serious injury.
There was no evidence of any disturbance consistent with an argument on the night of the deceased's death. Nothing of this nature was heard by the neighbours. Nor was there any evidence that the applicant was intoxicated. Even if any assault was unplanned, these matters point away from an uncontrolled outbreak of violence. In these circumstances the possibility that the applicant struck the deceased with a blow sufficiently hard to break a bone in his hand suggests a level of force consistent with an intention to cause, at least, really serious injury. Further, if, for example, the deceased hit her head as a result of falling on a hard surface after such a blow or otherwise, death was unlikely to have been instant. For the reasons discussed above, not seeking assistance and then disposing of the body suggest a disregard for the deceased, and point away from an intention to do something less than inflict really serious injury.
Weighing all of the evidence, I am ultimately satisfied that the applicant acted with an intention to inflict, at the least, really serious injury. Given my view of the evidence it is unnecessary to return to the issue of whether any inference can or should be drawn in accordance with the principle in Weissensteiner. It follows that the verdict of the jury was not unreasonable. I would reject this ground.

[37]

Conclusion

For the reasons given above, I am of the view that none of the grounds have been established and the appeal must be dismissed.

[38]

Amendments 09 August 2022 - [8], [10], [44], [63], [67], [70], [75], [76], [86], [90], [94], [95], [100], [103], [104], [112], [114], [120], [122], [125], [131], [134], [139], [142], [150], [158], [160] - minor typographical errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2022

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