Merrick v R

Court of Criminal Appeal (NSW)|2017-09-13|Before: Gleeson JA, Beech-Jones J, Fagan J, Wilson J

Solicitors: Mr Nick Felton, Armstrong Felton (appellant) Mr Craig Hyland, Office of the Director of Public Prosecutions (respondent) File Number(s): 2013/369082 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Criminal Citation: R v Merrick (No 5) [2016] NSWSC 661 Date of Decision: 23 May 2016 Before: Wilson J File Number(s): 2013/369082

Judgment

THE COURT: The applicant was charged with the murder of Marika Ninness at New Lambton Heights on 21 December 2013. He was tried by jury, before Wilson J at Newcastle, in March 2016. On the 29th of that month a verdict was returned of not guilty of murder but guilty of manslaughter. He now seeks leave to appeal against his conviction on a ground which involves a question of mixed fact and law.
The maximum sentence for manslaughter under s 24 of the Crimes Act 1900 (NSW) is 25 years and no standard non-parole period applies. On 23 May 2016 Wilson J imposed a sentence of 11 years imprisonment with a non-parole period of 8 years and 3 months. If his appeal against conviction is unsuccessful the applicant seeks leave to appeal against this sentence.

Isolation of the issue in the conviction appeal

Consideration of the applicant's case in this Court must commence with ground 3, upon the basis of which the applicant seeks to have his conviction quashed. If that ground fails and the conviction stands then her Honour's findings relevant to sentence, which are challenged under ground 1, will have to be considered with due regard for what was implicit in the jury's verdict.
In conformity with Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31 the jury were directed (at Summing Up pp 50 - 51) that, in order to return a verdict of guilty of manslaughter, they would have to be satisfied the Crown had proved beyond reasonable doubt that: 1. the death of Ms Ninness was caused by an act done by the applicant; 2. the applicant intended to commit the act that caused death; 3. the act was unlawful and 4. the act was dangerous, that is, a reasonable person in the applicant's position at the time the act was committed would have realised that the act exposed another person (on the Crown case, the deceased) to a risk of serious injury.
The applicant's written submissions in this Court did not identify explicitly which of these elements it is said could not reasonably have been found proved beyond reasonable doubt on the evidence. The submissions on ground 3 commence with the proposition: 69. Apart from the evidence of Ms Thomson, there is no reason to reject the [applicant's] account of what occurred.
Ms Thomson was an eyewitness to the assault which the Crown alleged was the unlawful and dangerous act causative of death. Other parts of the applicant's submissions are heavily focused upon what are said to have been deficiencies in Ms Thomson's evidence, a subject which will be returned to later in these reasons.
The submissions conclude with the following: 83. The real possibility of the [applicant's] account being true cannot be excluded beyond reasonable doubt.
This way of articulating the applicant's argument on ground 3 can only be understood by reference to a summary of the "account" which it is contended the jury had "no reason to reject" and which "cannot be excluded beyond reasonable doubt". Such a summary is given at [70] - [82] of the applicant's written submissions. That account was given in part by way of statements he made to people who came to Ms Ninness' aid as she lay on the ground in the car park, in part by statements to police and in part in the applicant's oral evidence before the jury. It was to the effect that the applicant made contact by his elbow with Ms Ninness' face, once, in reaction to her being "in my face". He claimed that this (in counsel's words, at [80]) "destabilised [Ms Ninness] and caused her to fall".
It was not submitted in this Court that the evidence was insufficient to support the jury's finding beyond reasonable doubt that a deliberate and unlawful assault by the applicant had been a substantial cause of Ms Ninness sustaining her fatal head injuries. That is, elements (1) - (3) listed at [7] above. The applicant's case on ground 3 is limited to the proposition that the jury could not reasonably have concluded from the evidence, beyond reasonable doubt, that a reasonable person in the applicant's position would have appreciated that his limited physical contact with Ms Ninness exposed her to a risk of serious injury. Critical to this is the entire body of evidence before the jury from which they could draw a conclusion about how hard he hit her.

The physical setting in which the assault upon Ms Ninness occurred

The open air car park in which Ms Ninness sustained her injuries fronts onto Molly Morgan Drive in East Maitland. That road is aligned from north-west to south-east. The car park is located on the south-west side of Molly Morgan Drive. It is large, having sufficient capacity to serve a shopping mall. Across Molly Morgan Drive from the car park, on the north-east side of the road, there is a McDonald's restaurant with a small adjacent open air car parking area.
A pedestrian crossing is marked out on Molly Morgan Drive from the front of the McDonald's restaurant across to the shopping mall car park. At the end of the pedestrian crossing where it meets the larger car park there is a concrete paved walkway. This continues through the car park in the same direction as the pedestrian crossing. That is, from north-east to south-west. For part of its length this walkway is raised above the trafficable surface of the car park by about 150 mm. Vehicle bays are marked out on either side of the walkway so that parked motor vehicles will stand at right angles to it. In each vehicle bay there is a concrete wheel stop, 2 m long, 130 mm high and 210 mm wide. The wheel stops are aligned parallel to the edge of the walkway, offset from it by 610 mm.

Evidence of Adellemaree Thomson

Ms Adellemaree Thomson gave evidence in chief that at about 11:40 pm on Saturday, 7 December 2013 she drove into the McDonald's restaurant car park in a minibus. Her driver's seat was in an elevated position. She parked near the restaurant, with children in the vehicle, to eat an ice cream. She saw a female (who proved to be Ms Ninness) alone near the restaurant. Ms Ninness walked from the restaurant to the pedestrian crossing. A man (whom other evidence showed was the applicant) approached Ms Ninness at the middle of the crossing: [He] kind of step[ped] in front of her, like and move[ed] his arms around to kind of get her attention, trying to tell her something, I could assume. She just kept walking.
The applicant's gesturing, as described by Ms Thomson, was with his fingers extended, palms toward his body, moving his hands in and out to the side of his body. The two continued in this fashion along the walkway through the car park. Ms Thomson described the applicant's actions as follows: Walking backwards, walking beside her, stepping in front of her, walking beside her, trying to get her to stop.
Floodlights illuminated the shopping mall car park "so there was lots of lights, but there was also shadow". Ms Thomson's view of the couple was not continuous because some shrubs interrupted her line of sight for one part of the path along which they walked and "an electricity box" obscured another section. Ms Thomson's evidence of what she saw when the movement of these two people along the car park walkway came to an end must be quoted at some length as it was the most detailed direct evidence of the fatal assault given in the trial and has been the subject of extensive submissions by the applicant.
Ms Thomson gave this account (emphasis added): A. He stepped in front of her and he hit her with his right hand. Q. Can you describe that for us? A. He was in front of her and with his right fist, like a hook punch, I suppose, and he hit the female to the head, or where I was sitting, to the face, the head area. Q. … what was the quality of the view you had at that point? A. It was good. Q. What was the lighting like where they were? A. Well, there was no shadows, it was dark, but light enough for me to see that someone a hundred metres away had a white shirt on, and he was wearing jeans, I could tell. Q. From the distance that you were, would you be able to tell their hair colour? A. Yeah, I could see that she had dark hair from back there, but I already seen her prior so I already knew that, but, yeah I could, yeah definitely.
Ms Thomson said that all she had seen of Ms Ninness before she was struck, as described, was that she had continued to walk forward.
Ms Thomson further elaborated on the assault, as follows (emphasis added): A. ... It was the far side of his body that I seen move, as example right hand, and I was on the other side, but yeah, it was upper body movement to her head. Q. Could you describe his movement? A. Legs apart, standing, back straight. It was a - I remember it because it shocked me because, just the way he stood, like it was, you know how to do it, you know what I mean? … Q. If you can, described for us the nature of the blow? A. Just strong and physically - I can't describe it. Just stood strong and tall and shoulders out and hit. Q. How hard was the hit? A. It was fast. … Q. What happened upon her being hit? A. She fell. I didn't even see her fall it was that quick. Q. Did you see her hit the ground? A. No. Q. What could you see? A. I could see his feet and how they were standing but I believe when she fell she fell lower than where they were standing 'cause I couldn't see from where I was, the ground. Q. Did you see as she was falling? A. Straight backwards. Q. Did she make any attempt to put her hands out or break her fall? A. No, like I said it was that quick, I didn't. … Q. … Did you actually see her in the process of falling? A. No, it was that quick, I don't think she would have had time to put her hands out. Q. Well tell us what you could see [and] what you did see? A. I seen the man hit the woman and she was on the ground, like that, like within the instant.
Still in her evidence in chief Ms Thomson was asked to describe what she meant by describing the blow struck by the applicant as "like a hook punch" (in the answer quoted at [18]). She said: A. What I mean is that a fist and stand and an arm extended out and around. Q. Now that last movement you made you move your fist around with the elbow slightly bent? A. Yes, the elbow would have to be bent. Q. When you saw the punch was his elbow bent? A. I believe so, yes HER HONOUR: And Mr Crown I think the record should reflect that the first movement Ms Thomson made the arm moved in fairly close proximity to the body.
Ms Thomson said that after Ms Ninness was on the ground: [the applicant] walked off, maybe four metres, five, six maybe and then turned around and came back. Q. Which way did he head? A. Would have been maybe on an angle towards the car park of [the shopping mall] … to where she was laying, probably the left, across the car park.
Aerial photographs of the locality were in evidence. They were marked by Ms Thomson to indicate her vantage point and the position at which the assault took place. It is apparent that prior to the assault Ms Ninness was walking away from Ms Thomson, a little towards Ms Thomson's right at a slight angle. Other evidence showed that the distance from Ms Thomson to the point where Ms Ninness was assaulted was in the order of 110 metres.
In cross examination Ms Thomson gave further evidence about the quality of her view of what occurred. She said she believed it was a "good view", the two people "were clear" and she had "a clear view of what was happening".
Ms Thomson was pressed in cross-examination about the nature of the blow struck to the deceased. She acknowledged that she had described the blow as a "punch" in a statement to police of 9 December 2013 and that at committal in mid July 2015 she said it was "more a straight punch" and "like a jab". She said she had different understandings at different times of what was the correct terminology for the kind of blow she had witnessed, partly as a result of having commenced boxing classes herself at some time after her statement to police was made and before the trial. The sequence and timing of these different understandings of terminology was not fully explored in cross examination.
Ms Thomson was also cross examined concerning variances in her evidence regarding whether the blow was struck to the right side of Ms Ninness' face (as said at committal) or the left (as said on at least one occasion at trial). The assault was described by Ms Thomson, on every occasion, as having occurred with the deceased's back toward the witness. There was, therefore, necessarily a degree of uncertainty on her part concerning which side of the deceased's face was struck.
On these two matters - the nature of the blow and the side of Ms Ninness' face which was hit - the following answers were given (emphasis added): Q. What you saw was a very quick movement of his elbow raised, didn't you? That's as much as you could see from that distance if - A. I seen his hand. … Q. And that's from 110 metres away? A. Yes. … Q. So you don't know whether it was the left or the right side [of Ms Ninness' face, which was hit]? A. I believe it was the right. … Q. … could've it then been an elbow movement with his left hand? A. It wasn't his left hand at all. Q. The movement was very fast? A. Yes. … A. That's why I don't know exactly where it hit her on the head. It was too quick. I couldn't say left eye, right eye. It was to the head and she fell instantly. Q. Why did you then say last year [at committal] when you were questioned about it repeatedly that you're confident it was to her right cheek? A. Because I believe she fell to the left when I seen her to the left. Q. So you were, rather than saying what you saw, you were reconstructing - … You were trying to work out what might have made sense? A. I guess so. Trying to piece in my mind how something so quick - … - could occur. … Q. … So you're trying to work out what happened, aren't you? A. No, I know what happened because I seen it. I just don't know what part of the face he hit.
There was tendered in evidence a video film of the location, in similar conditions of darkness and artificial lighting to those of the night in question, including a view from the location from which Ms Thomson had made her observations. This did not contradict Ms Thomson's evidence concerning her line of sight. Submissions were made in this Court regarding available light at the scene, as shown on the film. This was a matter for the jury to assess having due regard to the differences between film recording of an artificially lit scene and the witness' experience of actually being present. It was open to the jury to accept Ms Thompson's evidence regarding visibility at the scene and to act upon it.
The applicant's submissions in this Court sought to minimise the probative value of Ms Thomson's evidence because she was uncertain how to describe the type of blow delivered by the applicant and unsure which side of the deceased's face was struck. These were matters well within the jury's capacity to resolve in determining what weight to give the evidence, utilising their advantage of seeing and hearing the witness. On transcript Ms Thomson's evidence impresses the Court as coherent and credible. There have not been demonstrated to the Court significant discrepancies or inherent contradictions or improbabilities in her testimony such that the jury, acting reasonably, was bound to experience a reasonable doubt about it.
Given that the appellant did not deny he made some kind of contact with Ms Ninnes' head, the important question was the degree of force involved. Firm and consistent aspects of Ms Thomson's evidence, upon which the jury were entitled to rely, were her descriptions of two broad features of the physical conflict. First, there was the general impression she gained of the applicant's posture: "legs apart, standing, back straight" and "just stood strong and tall and shoulders out and hit" - see [20] above). Secondly, she described the speed with which the deceased went to the ground. If the jury accepted these descriptions, as it was open to them to do, a strong inference was available as to how hard Ms Ninness must have been struck. Ms Thomson said the hit "was fast" and that Ms Ninness went down so quickly that she would not have had time to put a hand out to break her fall. The fall was so quick that Ms Thomson did not see the transition from upright to horizontal: "the man hit the woman and she was on the ground, like that, like within the instant".
These two features of the assault were not affected by uncertainty on the part of the witness as to the detailed description (or correct name) of the blow struck or as to where it landed on the deceased's face. They were features which, the jury would have been entitled to find were quite capable of being reliably observed by a witness at Ms Thomson's location under the prevailing lighting conditions. The jury could have been satisfied that these features bespoke a forceful impact which a reasonable person in the applicant's position would have realised exposed the deceased to a risk of serious injury.

Evidence of Mr William George

In chief Mr William George gave evidence that he was stationary in his vehicle at the McDonald's restaurant drive-through window, on the south-east side of the building, when he saw the applicant and Ms Ninness walking on the footpath, on the McDonald's restaurant side of Molly Morgan Drive. They were arguing. Ms Ninness was trying to get away from the applicant and was asking him to leave her alone. Mr George did not identify the two people when he first saw them but from subsequent events as described by him their identities were clearly established.
Mr George shortly afterwards saw the two together in the shopping mall car park, on or near the concrete walkway. They were face-to-face and both were making gestures with their hands. Mr George turned to receive his food order from the serving window of the McDonald's restaurant drive-through and to place it on the passenger seat beside him. When he looked back Ms Ninness was on the ground. In cross-examination he said the length of time he looked away, during which Ms Ninness went to the ground, was about "a couple of" seconds.
The applicant has not submitted there is any inconsistency between Mr George's evidence and that of Ms Thomson. Mr George's evidence tended to confirm that Ms Ninness went to the ground very quickly.

Evidence of Adam Kuskunovic

Mr Adam Kuskunovic parked in the shopping centre car park shortly before midnight on Saturday, 7 December 2013 and alighted from his vehicle to try to find his stepdaughter, Ms Madelyn Butt. He was at the location with his wife to collect Ms Butt and drive her home. He parked about 40 m to the south-west of where Ms Ninness and the applicant were arguing on the walkway. He could hear them arguing and thought the female might have been Ms Butt and that she might have been under attack.
Mr Kuskunovic ran along the walkway towards the couple. His evidence continued as follows: A. … as I ran down there I was probably about 5, 10 m away then I saw the lady fall down on the ground and I couldn't notice the bloke because he was turned with his back to me, I couldn't see his face, but as I come close I saw it wasn't my daughter - A. … I saw a gentleman holding the [lady's] head in his hands and she was covered in blood and he said, "I'm sorry Marika I didn't mean to do it, to do this", and I said, "What you do mate?" And he said, "We had argument and I hit her with the elbow" and I grabbed my phone then I call the ambulance.
The witness said both the man and the woman had been waving their arms when they were arguing. He could only see the man's back. He did not see how the deceased fell. In cross-examination he gave this answer: I didn't see how it happened but I saw the lady falling down when I get closer but I didn't see how he - the way he hit her in there but that's all what he told me, that they were arguing and he hit her with the elbow.
Mr Kuskunovic said in cross-examination that as Ms Ninness fell "I saw the man go over and straight away down". That is, he went straight to a position beside Ms Ninness' head, from which he held her head in his hands. The applicant relies upon the inconsistency between this evidence and Ms Thomson's recollection that, after striking Ms Ninness to the ground, the applicant walked off to Ms Thomson's left (in a southerly direction) for about four or five metres before returning to her (see [22] above).
This is a difference of recollection which the jury was well placed to resolve, with their inherent advantage of seeing and hearing both witnesses. If the jury found both witnesses honest, conscientiously trying to give an accurate account of what they had seen, they could have applied their common sense to adopt any of a number of possible explanations of the difference in evidence. It would have been open to them to reason that Mr Kuskunovic, although he was closer to the scene than Ms Thomson, may have concentrated his attention on the female whom he initially thought was his stepdaughter. A brief movement away from her by the applicant may not have been noticed or remembered. Alternatively, they may have thought Ms Thomson was mistaken about the applicant having briefly moved away from Ms Ninness, prostrate on the ground.
The jury may have thought the divergence of the evidence of the two witnesses on this point was peripheral and collateral and not a sufficient basis upon which to entertain any reasonable doubt about what Ms Thompson described of the manner of the assault and of it having knocked Ms Ninness to the ground "within the instant". All of these matters were entirely within the scope of the jury's judgment.

Evidence of Madelyn Butt

Ms Butt came on the scene when Ms Ninness was already on the ground. At some stage whilst she was there the applicant said to Ms Butt he had "elbowed her in the face". He further said, "She got in my face and it was instant reaction. It's no excuse, I know that's not excuse, I've served in Iraq and it's fucked me". Sometime later, after the ambulance arrived, he appeared upset and said repeatedly "What have I done". Ms Butt said that Ms Ninness lay about 3 m from the edge of the walkway, further out from it than the concrete wheel stop.

Evidence of Janelle Allan

Ms Janelle Allan attended the shopping centre shortly before midnight. She was unable to gain entry and walked back to her vehicle. As she did so she saw two people (by inference, the applicant and Ms Ninness) on the walkway. She gave this evidence: … he was yelling, he hit her, he hit her and when I looked back … there was one person standing and what appeared to be a female and male and the female down.
Ms Allan demonstrated that the male had his left arm up above his shoulder, his right arm lower at about chest level, with the left arm bent at the elbow and the forearm approximately parallel to the ground. She said the female fell to the ground at the same time as the applicant moved his left arm. This suggested that the applicant had struck Ms Ninness with his left fist or hand rather than his right. The jury were not bound to regard this as of consequence for the credibility of Mrs Thomson's evidence. They were entitled find that Ms Thomson exhibited a degree of uncertainty about which fist or hand had been used (see for example the first answer quoted at [20]) and that this did not detract from the essential points of observation, as referred to at [30] and [31].

Evidence of the ambulance officers

Ambulance officer Brett Lovett arrived at the scene at 12:06 am. In chief he said the applicant told him; "She was in my face and … my military training kicked in and I struck her in the face, head".
Mr Lovett was accompanied by a second ambulance officer, Matthew Ross who recalled the applicant saying: "She was standing right in my face and … my military training had kicked in and I struck with my elbow".
Mr Ross gave evidence that the applicant demonstrated what he said was the nature of the blow he struck the deceased. The demonstration was of him moving his right arm across his body, "up and over action". He could not say for certain whether the applicant had demonstrated a closed fist or an open hand "but it was definitely the elbow was an up and over action".

Evidence of Snr Const Ballardie and Sgt Lloyd

Senior Constable Ballardie attended the location in the car park where Ms Ninness had been injured, after she had been taken by ambulance to hospital. He asked the applicant what happened and was told (emphasis added): I don't really know, we were arguing and she was screaming at me, she was waving her arms around, and then she jumped towards me and I just reacted, I guess my training kicked in.
When asked by the officer if he had hit Ms Ninness the applicant said, "No, I just reacted and threw an elbow like that". Senior Constable Ballardie said that the applicant then demonstrated what he meant by this, in a manner which the officer repeated before the court. This involved drawing his right arm up, with his elbow bent, to level with his shoulder and moving it forward and around in front of his chest.
Sergeant Lloyd was the custody manager at Maitland Police Station in the early hours of Sunday, 8 December 2013. He observed the applicant sitting alone in the dock within the charge room for some time. During that period the applicant spoke to himself and moved his arms about, apparently trying to reconstruct the altercation with Ms Ninness. During this the applicant said (to himself): … she was in my face and she was waving her hands around my face and arguing. So I swung my arm up and I hit her once. She just fell to the ground and she wasn't moving.
At the point in this narrative where the applicant said Ms Ninness was waving her hands around he had an open hand, with fingers spread, which he waved in front of his own face. As he said to himself that he had "hit her once", he had his right fist clenched with the arm raised and bent at the elbow and he moved the fist "very, very swiftly" in towards his chest, with his shoulders swinging around and across his body, with some vigour. In doing this he swung the lower part of his right forearm into the palm of his left hand making "a very loud slap sound to the point where it was a crack". This action was recorded on video footage of the applicant in the dock, which was replayed to the jury.

Evidence of Dr Dimou

Relevantly to the issues raised by the applicant the important aspect of Dr Dimou's evidence was that, although he said he could not express a firm view regarding the measure of force which caused Ms Ninness' injuries or the velocity of impact (that is, of something hitting her head or of her head hitting an immovable surface), "it would be highly unusual, in reflecting on my experience, for a simple fall to cause such a significant extent of bleeding". He said: … the extent of the force that would [be] required to do this would be more than just simply somebody falling over and hitting the back of the head. … [T]here would be some other X factor involved in terms of the increase in force or an increase in velocity to generate a brain injury of this magnitude.
Dr Dimou agreed it was "not unreasonable" that the extent of the injury he observed could have been caused by an "accelerated fall", for example if the deceased had been "struck such that [she fell] from full height, without breaking the fall, and the force of the blow has accelerated [her] descent". He continued: If the fall is somewhat provoked, then the time in which those reflexes can kick in becomes more limited, which means that the chances of having a severe head injury become increased. And I think that's probably the best way of sort of understanding the potential for a mechanism in this scenario.
There was evidence that at the time she sustained her injuries Ms Ninness was wearing high wedge-heeled shoes and had consumed alcohol. It was put to Dr Dimou in cross-examination that her fall to the ground may have been accelerated by a combination of intoxication, stepping onto the edge of the concrete walkway and wearing high heels. He said that "would be highly unusual" and continued: Without some additional force, I would find it very hard to believe that … a certain patient had simply fallen over to cause this sort of bleed [to the brain]. … I think about the dozens, if not hundreds, of patients I've seen with a simple closed head injury who had a … few to drink, they fall over, they hit the back of the head, and they may have a tiny little fracture, they may have a tiny bit of bleed but they don't come in unconscious on the point of - on the brink of brain death.
Dr Dimou expressed the opinion "there's been enough force subjected to the deceased that has meant that her normal reflex mechanisms, her normal mechanisms for breaking such a fall have been rendered obsolete". He said: [I]n extrapolating from … the other patients that I've had to operate [on] in the past … that would tell me that there has been some force applied to [Ms Ninness] so that [she was] not able to react in … what would be the expected normal way and that has led to … this injury.
The doctor did not consider that the extent of Ms Ninness' head injury could be explained merely on the assumption that her head struck a concrete wheel stop rather than the bitumen surface of the car park. He did not consider that the difference in density of these materials would of itself make "a huge difference" to the extent of injuries sustained upon Ms Ninness' head striking one or other of them.
It was open to the jury to find in the doctor's evidence support for Ms Thompson's account of a blow delivered to some part of the front of Ms Ninness' head with sufficient speed and force to cause her to fall to the ground "within the instant" and with insufficient reaction time to put out an arm to break the impact.

Evidence of Dr Allan David Cala

Dr Allan David Cala is a forensic pathologist who examined Ms Ninness post-mortem. He said with respect to the extent of her brain injuries: I see them quite frequently as a result of assaults. I see them in motor vehicle trauma. I see them in substantial falls. Not just a fall crumpling down from your own height onto the floor but, say, a fall downstairs where there has been tumbling, rotation, gravity effect, striking the head, this sort of injury pattern is seen.
He considered that injuries such as the deceased had sustained could be caused if the person was struck to the head and fell without breaking or attempting to break her fall and struck her head hard on a hard surface. He thought such injuries could be caused if the person was rendered unconscious by a blow and fell the ground in an unconscious state. They could also be caused "by a direct blow to the head".
In cross-examination Dr Cala agreed that if a person fell "straight back", did not put her arms out to break her fall or slow it down, and struck her head, there would be "some angular velocity and momentum". He said that if she lost balance and swivelled on her heels, then struck her head on the ground with "significant force" it could "cause a significant brain injury". He agreed that if Ms Ninness' reflexes were not working as well as a sober person's then there was the potential for a "rotational twist" and she could have fallen to her left side and struck her head on the wheel stop. The doctor agreed that the injuries she sustained would be "consistent with that scenario".
In re-examination the doctor said that even if a person's fall was broken, for example by putting his or her hands out, the impact of the head striking a hard object could still be sufficient to cause significant head injury.
It was open to the jury to find that this evidence did not contradict the opinions of Dr Dimou nor in any other way raise a reasonable doubt about the appellant having knocked Ms Ninness to the ground with a forceful blow, as the Crown contended on the basis of Ms Thompson's evidence.

Evidence of Dr Peter Ellis

The applicant called his own expert forensic pathologist, Dr Peter Ellis, whose evidence was interposed towards the end of the Crown case. He considered that striking of the left side of the deceased's head on the flat ground was: less likely to cause fracture unless it is done with a lot of force, a major force, because if the side of the head hits the flat of the ground then the impact is spread over quite a large area, effectively the whole of the left side of the head. If the left side of the head were to strike the edge of that wheel stop that the same [force] is concentrated on a smaller area of contact and so is much more likely to cause injury because the force on the head itself is actually going to be greater. … I cannot exclude it striking the flat of the ground, it is possible.
The doctor also said: There is a belief among some people that if the head is subjected to some kind of intense force, such as a punch or some kind of blow, that will cause the head to move down more quickly. I'm not sure that the physics supports that because if you punch a head it will tend to move away in the direction of the punch and then the force of that punch is dissipated very quickly. The individual may then fall down but I don't think that the speed of the fall is necessarily going to be any greater[er] - but that's what is usually understood by the term "accelerated fall".
Dr Ellis gave this further evidence: You can't say that because there is a base of skull fracture, therefore the fall has come from a particular height, therefore there's been a particular force caused it. … I would say that the presence of the skull fracture suggests there's been some contact but exactly what contact hit the head I can't tell. I can't tell whether that's the accused or the assailant, an assailant, or whether it is the ground, but something has struck the side of the head with sufficient force to fracture the skull.
In other respects the evidence of Dr Ellis was to much the same effect as that of Drs Dimou and Cala, including that he considered the life-threatening brain damage and subdural haemorrhage had been caused by a contrecoup insult.

Evidence of the applicant

In chief the applicant said that on Saturday, 7 December 2013 from about 9:00 pm he and the deceased were drinking in the George Tavern. That establishment is adjacent to the shopping centre, on the south-east side of it. It is on the same side of Molly Morgan Drive as the large car park. He said that he bought about ten rounds of drinks and the deceased bought two more, in each case beer for himself and "vodka post mixers" for her. They argued, he walked outside, then the deceased went across to the McDonald's restaurant and the applicant learned she was there by a text message.
The applicant said they met in the car park and continued to argue. He was animated and moved his arms about. His evidence continued as follows: Q. At some stage do you remember whether you were facing each other? A. Year, we faced each other a couple of times and continued arguing. … Q. What can you next remember? A. I just remember her hand coming up and in an instance I just put my arm across my face and I felt contact with my left elbow and that was it, just, next I know she was on the ground and I was straight down to her. Q. … You said your arms were both waving? A. Yes. Q. … what did you next say about her, about Ms Ninness? A. I saw her hand come up and, in my face, and I just, in an instance [sic] I just put my arm up and that's when I felt the contact with my left elbow and she'd fallen over and … Q. … when you put your arm up, did you intend to strike? A. No, not at all.
The applicant declared that he had not intended to kill or seriously injure the deceased or to harm her in any way. Having said that he put up his left arm and felt contact with his left elbow, he was asked to explain why, in the demonstrations he had made to Senior Constable Ballardie at the scene and when sitting in the dock at East Maitland police station (as witnessed by Sergeant Lloyd), he had used his right arm. He said: I'm right-handed, I don't know, at the time I was just, so desperate with what was happening that, trying to make sense of it all -- trying to work out what happened.
The applicant said his best recollection of what he felt, at the point of contact with the deceased, was: I just, I felt, I felt [Ms Ninness] on my elbow, I felt some part of her on my elbow. … I just, I don't know, I just, I thought I'd hit her in the face with my elbow.
He said the reason he had told people at the scene that he had hit the deceased with his elbow to her face was because he thought that is what had occurred, due to her having fallen over. When asked why he had made reference, at the scene, to having served in Iraq he gave these answers: A. I just thought my reaction straight away was attributed to that. Q. When you say your reaction straight away, what you mean by that? A. Covering up my face and just remember training I received. Q. As far as you remember, did you actually cover your face or you don't know? A. I don't remember.
The applicant was shown the recorded film of himself in the dock at East Maitland police station, swinging his right arm across his body as described by Sergeant Lloyd (see [50]). He said he did not have an understanding of what had occurred between himself and the deceased and that he was trying to work that out.
In cross-examination the applicant denied that he had struck the deceased "with considerable force" and denied that he had deliberately hit her in anger intending her serious harm. He was reminded that he had acknowledged in chief he was walking along with her, arguing. He was asked in light of that how he could have been surprised "that she was in your face". He gave this answer: I just saw it in the corner of my eye.
The Crown prosecutor put to the applicant that Ms Ninness was not trying to hit him. He responded: A. I saw her hand, in the corner of my eye, and that's why I had an instant reaction. … Q. How did you see her out of the corner of your eye then, if she was in front of you? A. It was her hand that was out of the corner of my eye.
After the applicant had attempted to explain this by a physical demonstration from the witness box, he gave these further answers: Q. But you told Constable Ballardie specifically that she was not trying to hit you. A. I don't know what was happening, I just, it was an instant reaction. Q. How far away was she? A. We would have been arm's length from each other. … Q. She's arm length away; your arm comes up, and yet there's contact. A. I also stated, too, that she came at me. Can't remember whether that was, if she tripped, or actually had lunged, but that's what happened. Q. Well, when she put her hand up, did you try and grab her hand? A. No Q. Did you try and keep her at arm's length by putting an arm out? A. That would mean pushing, so no. Q. Well, what do you say you did? Demonstrate. A. I put my arm across my face. Q. Demonstrate. A. I don't know exactly how I did it. I can't remember. It just happened also quick. Q. Are you not prepared to demonstrate what you did? A. I'm not prepared to demonstrate because I don't, I honestly don't remember exactly how I did.
In the immediately following answers the applicant said he could not remember having given demonstrations for the ambulance officer and for Senior Constable Ballardie at the scene. In further cross examination the applicant was challenged about his naval training having had anything to do with how he had struck the deceased. He was reminded of Senior Constable Ballardie's evidence as quoted at [47]. He said he could not recall having told the officer that the deceased had "jumped towards me and I just reacted" and "threw an elbow".
The Crown had tendered in its own case text messages sent by the applicant to the deceased in the course of arguments between them in October and November 2013. In these the applicant had abused Ms Ninness in demeaning and obscene terms. He was cross-examined about the messages but denied that they reflected any feeling on his part stronger than annoyance.
He was cross-examined about an incident on 27 October 2011 when he had wrenched Ms Ninness out of her bed and flung her two metres across a bedroom into a wall, damaging it and inflicting injury for which Ms Ninness had sought medical attention at the Mater Hospital. The applicant claimed he had not known his own strength, although he gave his own height as 6 foot 1 and hers as 5 foot 5. He agreed Ms Ninness was slim, relative to himself.

Legal principles applicable to ground 3

The Court is required to determine ground 3, the contention that the verdict was "unreasonable and cannot be supported having regard to the evidence", upon principles laid down by the High Court in M v The Queen (1994) 181 CLR 487; [1994] HCA 63 and subsequently summarised by a majority of the High Court in SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 as follows (citations omitted): [11] It is agreed between the parties that the relevant function to be performed by the Court of Criminal Appeal in determining an appeal, such as that of the applicant, is as stated in M v The Queen by Mason CJ, Deane, Dawson and Toohey JJ: 'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' [12] This test has been restated to reflect the terms of s 6(1) of the Criminal Appeal Act. In MFA v The Queen McHugh, Gummow and Kirby JJ stated that the reference to 'unsafe or unsatisfactory' in M v The Queen is to be taken as 'equivalent to the statutory formula referring to the impugned verdict as "unreasonable" or such as "cannot be supported, having regard to the evidence".' [13] The starting point in the application of s 6(1) is that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, and the jury has had the benefit of having seen and heard the witnesses. However, the joint judgment in M v The Queen went on to say: 'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.' Save as to the issue whether the Court of Criminal Appeal erred in not viewing a videotape of the complainant's police interview, to which reference will be made later in these reasons, this qualification is not relevant to the present matter. [14] In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M v The Queen and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M v The Queen, Mason CJ, Deane, Dawson and Toohey JJ stated: 'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, 'none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand.'
Hayne J in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113] made it clear that this ground is not to be upheld if the appellant shows no more than that it was open to the jury to reach a different conclusion. On the other hand it is not sufficient to dismiss the ground that there was evidence upon which the jury could convict: M v The Queen cited in SKA v The Queen at [14]. Weight must be given to the primacy of the jury as the tribunal of fact but if a full consideration of the evidence at trial leaves the Court in reasonable doubt as to the verdict, it is only where the jury's advantage in seeing and hearing the evidence is capable of resolving the Court's doubt that it can conclude there was no miscarriage of justice (see also MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at [25] - [26] and [55] - [56]).

Determination of ground 3

As referred to at [8] - [11] above, the applicant's written submissions on this ground essentially consist of a recitation of the evidence that, at the scene in the carpark, the applicant expressed his anguish regarding Ms Ninness' injuries and offered self exculpatory descriptions of what occurred. This is coupled with the submission (at [79] of counsel's submissions) that "everything points to these accounts being genuine".
That is simply not so. First, when developed during his evidence in chief and when probed in cross-examination, the applicant's description of what occurred exhibited many features about which the jury would have been entitled to feel scepticism, to the point where it would have been open to them to find his account did not represent a reasonable possibility and did not give rise to a reasonable doubt. His own claims of uncertainty as to what had occurred (see the passages quoted at [68] - [71] and [74]) and material inconsistencies in versions given at different times (see [68]; [67] cf [47]) could have contributed to this.
Secondly, Ms Thomson's evidence directly contradicted the applicant's claim that his contact with the deceased was reactive and slight. It was well open to the jury to accept Ms Thomson and to feel no reasonable doubt about her description of a deliberate, forceful and effective blow delivered by the applicant to the deceased's head. Ms Thomson's evidence was not inherently improbable. It was in internally consistent and coherent. It was not in conflict with the evidence of other witnesses in any central respect.
The jury were entitled to regard Ms Thomson's description of what occurred as supported by the evidence of Dr Dimou. Dr Ellis was not so definitive in his opinions as to preclude acceptance of and reliance upon Dr Dimou. There is no complaint made about the sufficiency of her Honour's direction regarding evaluation of the expert opinion evidence.
The critical issue was whether the applicant struck Ms Ninness such a blow that a reasonable person in his position would have appreciated it carried a risk of serious harm to her. The Court has had regard to the applicant's critique of Ms Thomson's evidence offered in written submissions concerning ground 1 (challenging the learned trial judge's finding in her remarks on sentence that the blow was forceful). The more substantial of the applicant's points about Ms Thomson have already been dealt with in the course of these reasons (in particular at [25] - [31]; [38] - [40] and [43]).
More peripherally, Mr Thomson's reliability is questioned (in submissions apparently directed primarily to ground 1) on the basis that she differed from Messrs George and Kuskunovic regarding whether Ms Ninness was gesticulating as she and the applicant walked towards the point of final confrontation. The applicant also pointed out differences in these witnesses' recollections as to which of Ms Ninness and the applicant, if either, walked backwards at times. The jury would have been entitled to treat these collateral details as insignificant variances of human recollection, not touching upon the veracity of Ms Thomson's observation of the central interaction of the two people. That is, her clear impression that the applicant assumed a posture which showed intent, that he delivered an apparently deliberate and powerful blow and that the deceased dropped instantly to the ground.
Taking together all the matters raised in challenge of Ms Thomson's account and in support of the applicant's evidence, the Court feels no doubt concerning the Crown's proof beyond reasonable doubt that the applicant knocked the deceased to the ground with a deliberate heavy blow that a reasonable person in his position would have realised carried the risk of serious harm. Upon the entirety of the evidence in the trial record the Court feels no reasonable doubt concerning his guilt, let alone a doubt that the jury would have been unable to resolve and dispel from their position of advantage in assessing the witnesses first hand. Ground 3 is rejected.

Ground 1 - sentencing judge's finding of a forceful blow

Her Honour's remarks on sentence are published at R v Merrick (No 5) [2016] NSWSC 661. Under ground 1, the first findings of fact in those remarks which the applicant asserts are unsustainable are those concerning the degree of force with which the applicant struck the deceased. The impugned findings are as follows: [41] At a point on the pathway through the car park approaching the shopping centre, the offender deliberately struck Ms Ninness a vigorous blow to the head, of some force, as seen by Ms Thomson and described and demonstrated by the offender. Although I cannot be satisfied beyond reasonable doubt as to precisely where the blow landed on Ms Ninness's head, or whether the blow was delivered with a fist or an elbow, the latter being the most likely, I am satisfied beyond reasonable doubt that the offender, enraged by the argument he had had with Ms Ninness, and by her refusal to go to him, deliberately and vigorously swung a blow of some force and velocity (T411) directed at her head area, that connected with her head. That blow caused her to fall immediately to the ground. … [43] Necessarily, consistent with the jury's verdict, the blow struck by the offender was one delivered without him having formed any intention to kill or do grievous bodily harm. It was an expression of rage and anger, an explosion of temper that caused him to lash out at Ms Ninness, striking her to the head. [44] The offender did that despite his much greater strength and size, and despite having some warning from the events of 27 October 2013 of the danger of the application of force by him to Ms Ninness. [45] As a result of the blow, Ms Ninness fell to the ground, striking her head on the hard surface of the car park, or perhaps on a concrete wheel stop in the vicinity. It is not possible to deconstruct the precise origins of the particular injuries sustained by Ms Ninness, but it is not necessary to do so. It is enough for the Court to be satisfied beyond reasonable doubt, as I am, that the offender's unlawful and dangerous act caused those injuries. Ms Ninness sustained severe and ultimately fatal head injuries from the blow, or the resultant collision with the ground when she was knocked from her feet, or from the combination of both applications of force. However sustained, the offender is criminally liable for the injuries Ms Ninness received.
It was open to her Honour to make these findings beyond reasonable doubt on the evidence summarised earlier in these reasons in connection with ground 3. The findings are consistent with the verdict of the jury, which must be taken to have rejected the applicant's account of a slight contact. What he described would not have carried an objectively appreciable risk of serious harm and if accepted, or if the jury thought it was a reasonable possibility, would have resulted in acquittal. Her Honour was bound by the jury's verdict to put to one side the applicant's description of a fleeting, almost inadvertent, contact.
It has been mentioned that the applicant's written submissions on ground 1 include a catalogue of perceived discrepancies in Ms Thomson's evidence and differences in matters of detail between her and other witnesses regarding the actions of the applicant and the deceased prior to the critical contact. Those submissions are properly directed to the jury's verdict and have already been considered in connection with ground 3. Given that Ms Thomson was the sole Crown witness to the full sequence of the applicant's assault upon Ms Ninness and that their verdict reflects acceptance of her evidence and rejection of the applicant's contrary narrative, her Honour was bound to act upon that evidence at least in its essential particulars for the purpose of passing sentence. In any event, for all of the reasons given in connection with ground 3, it was well open to her Honour to make her finding of the nature of the blow struck by the applicant, upon the basis of Ms Thomson's evidence.
The applicant has criticised her Honour's reliance, in the following passage of the remarks on sentence, on the evidence of Dr Dimou: [57] A number of features of this offence serve to mark it as a particularly egregious example of manslaughter. … (8) Although it is not possible to assess the precise level of force used by the offender in striking Ms Ninness, I accept the weight of the expert medical evidence (Dr Dimou and Dr Cala) that it must have been a blow of some force, delivered with some velocity. It is significant that Dr Dimou, who had the opportunity of seeing the injures to Ms Ninness prior to medical intervention, regarded it as an injury of such an extent as to be comparable to those seen more typically in passengers in car crashes.
The applicant's complaint about acceptance of Dr Dimou's opinion is, again, futile given that, for consistency with the jury's verdict, her Honour was bound to sentence upon the basis that the blow was "of some force delivered with some velocity", so as to carry the objective risk of causing serious injury which the jury evidently found. Nevertheless, the applicant submits the above finding discloses a misreading of the medical evidence in that Dr Dimou was speaking of "the whole complex of injuries" sustained by the deceased as a result of her head striking ground; he was not speaking of "only what might have been caused by an initial blow".
The impugned passage quoted above at [90] does not involve the asserted misapprehension. It is apparent from the portions of Dr Dimou's evidence quoted at [51] - [54] above that the doctor thought the deceased's head injuries would not have resulted from a simple fall. He thought she had to have been subjected to sufficient force to cause "an increase in velocity of her fall" and to cause her to go down so quickly that she would not have had reaction time within which to break the fall. Her Honour's summation does not disclose any misunderstanding of these views and it was open to her to accept them.
The applicant submits that her Honour "did not take into account the evidence of Dr Peter Ellis, by far the most experienced of the practitioners". Dr Ellis' evidence is summarised, so far as relevant, at [62] - [65] above. He stated the possibility that the initial impact to Ms Ninness' head "could have been very slight", followed by her falling and suffering heavy contact with the ground or with a wheel stop, which would have caused all of the head injuries and brain damage. But the jury must be taken to have rejected that as not a reasonable possibility. A "very slight" contact from the applicant would not, to a reasonable person in the applicant's position, have carried a risk of serious injury.
Given the jury's implicit rejection of a "very slight" contact, it was not incumbent on her Honour to advert to Dr Ellis' evidence in her reasoning as to the degree of force with which the applicant struck Ms Ninness.

Ground 1 - finding of no remorse

The second challenged finding of fact in the remarks on sentence concerns the absence of remorse of the applicant, as follows: [93] The referees also refer to the grief and sadness the offender has expressed over Ms Ninness' death. That is consistent with the distress seen by witnesses who had occasion to observe him on the night of 7 December 2013 and into the following morning, and I do not doubt the magnitude of his grief. Grief, however, must be distinguished from remorse. It is possible to feel bereft at the death of a loved one without feeling the weight of responsibility for that death. [94] In light of the offender's evidence at trial of the circumstances of Ms Ninness' death, and his insistence in evidence on 9 May 2016 that his account was correct, I am not able to conclude that the offender is remorseful for his crime as contemplated by s 21A of the [Crimes (Sentencing Procedure) Act 1999 (NSW)]. Before the jury the offender repeatedly sought to diminish his conduct. He claimed that he had not been angry with Ms Ninness on 7 December 2016 but only annoyed, that his abuse of and threats towards her at times in their relationship were merely childish, that his previous assault of her was "just an accident" (T729:05). I accept that he feels sorry that Ms Ninness died, and feels sadness for her children, but I do not accept that he is remorseful for his conduct, or feels personally responsible for her death.
The applicant argues that these conclusions are contradicted by "a clear acceptance of responsibility" conveyed through his demonstrations of anguish at the scene. The Court is reminded that Ms Butt said he repeatedly asked, rhetorically, "What have I done?". However, that evidence does not contradict her Honour's finding. The crime which the jury found proved involved a forceful deliberate blow which felled Ms Ninness "in an instant" to a hard paved surface. The applicant has never accepted responsibility for such a blow. He has, falsely as the jury concluded, asserted that he did no more than unintentionally cause Ms Ninness to fall by a defensive and reflexive raising of his arm and elbow. He maintained that account of his actions, on affirmation, when he gave evidence in the sentence proceedings on 9 May 2016. He still asserts in this Court that he did no more than inadvertently "destabilise" the deceased.
Remorse for a crime cannot be shown if the facts are not faced and if the criminality is not owned. By prosecuting ground 3 of this appeal the applicant continues actively to deny the fact which is at the centre of the crime of which he stands convicted: that his unlawful assault on the deceased was such as a reasonable person in his position would have realised carried a risk of serious harm. This Court would be dealing in fiction to treat as remorseful an applicant for leave to appeal who denies the gravamen of his crime on affirmation at trial and in sentence proceedings and who continues to deny it on appeal.
A second complaint about the finding of no remorse is that her Honour failed to "mention" evidence of character referees who said the applicant had "shown the sincerest repentance" and "understands the gravity of his actions". There is no appellable error arising from her Honour not having specifically referred to this evidence. It could not have carried any weight. The referees' perceptions of contrition were contradicted by the accused's unsuccessful ongoing attempts to exculpate himself.

Ground 1 - offer to plead guilty to manslaughter

It is contended that her Honour erred in failing to allow any discount on sentence for the applicant's offer, made four weeks before trial, to plead guilty to the lesser charge which the jury ultimately found proved. The trial was listed to commence on 29 February 2016. By email of 2 February 2016 the applicant conveyed to the Crown an offer to plead guilty to manslaughter "subject to agreed facts". The email is not in evidence before the Court, nor is the Crown's reply. It is common ground that the Crown responded to the effect it was not prepared to accept a plea of guilty to manslaughter in satisfaction of the indictment for murder.
No statement of facts was ever submitted on behalf of the applicant for the agreement of the Crown as the basis of the proposed plea. If the applicant had progressed the proposal to that stage, the facts would have to have been different in material respects from the Crown Case Statement, as that was drawn up for the charge of murder. It would also have to have been significantly different from the account which the applicant gave at trial and which he still presses in this Court. That account would have traversed a plea of guilty to manslaughter.
Her Honour gave these reasons for declining to allow any discount on sentence on account of the offered plea: [118] Having reviewed the evidence given on his oath by the offender, and accepting that the offender's legal representatives could not, consistent with their obligations as officers of the Court, have called a positive case on his behalf if his sworn testimony significantly differed from his instructions as to the events of 7 December 2013, I cannot regard his conditional offer of a plea as any more than exploratory. [119] I infer that no facts that would have supported a plea of guilty could have been acceptable to the offender having regard to his sworn evidence. Nothing in his conduct of his case was consistent with his guilt of manslaughter, and I am not able to discern any utilitarian benefit in the conduct of the trial overall.
The applicant argues it would have been open to him to agree facts contrary to the evidence he gave at trial and to plead guilty to manslaughter notwithstanding his contention that he is innocent of the charge. He submits the offer did not translate into an actual plea, with realised utilitarian value, only because the Crown pressed on with the charge of murder. In these circumstances, where the jury found him not guilty of murder but guilty of manslaughter, he claims that he should have received a discount for the potential utilitarian value of what he offered.
Section 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires a sentencing judge to take into account the fact of a plea of guilty and its timing and circumstances. The section allows that, upon those considerations, a lesser penalty may be imposed than would otherwise be the case. A discount on sentence under this section is allowed solely to reflect the utilitarian value of the plea in expediting and reducing the cost of the administration of the criminal law: R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142. The discount is separate from and additional to any moderation of sentence that may result from the remorse and contrition which the sentencing judge may find implicit in the plea.
Generally, where a plea of guilty has been withheld (including where this has occurred during a period and for a purpose related to negotiations with the Crown), no utilitarian value will be considered to have accrued and no discount will be allowed: R v Stambolis [2006] NSWCCA 56; 110 A Crim R 510 per Howie J at [11]. In that case Howie J made the following further observations which have relevance for the present case: [12] I accept that there may be exceptional cases, where as a matter of fairness to the offender, a discount will be given even though there was no utilitarian value in it. One such situation that has been recognised is where the Crown rejects the accused's plea of guilty to manslaughter and the accused is later acquitted of murder but convicted of manslaughter after trial: R v Oinonen [1999] NSWCCA 310; R v Cardoso [2003] NSWCCA 15.
As this passage recognises, the underlying consideration upon which a sentencing judge may allow a discount beyond the operation of s 22 of the Crimes (Sentencing Procedure) Act, in respect of the unrealised utilitarian value of plea which is offered but not accepted, is that of fairness to the offender. Further, it must be recognised that the refusal of a sentencing judge to afford any discount on account of an offer to plead guilty that was not accepted is an exercise of discretion that can only be interfered with on the basis stated in House v R (1936) 55 CLR 499.
In R v Oinonen [1999] NSWCCA 310 the offender had been tried for murder having killed a man with whom he was having an argument by discharging a rifle in his direction as the victim attempted to flee down a public street. The offender had offered before trial to plead guilty to manslaughter. That was not accepted by the Crown and he did not enter that plea in the presence of the jury. At trial he did not dispute that he had pointed the weapon in the direction of the deceased, with the safety catch off, and that it discharged and caused the death.
Grove J (with whom the other members of the Court agreed) held as follows: [15] It is true that technically the applicant did not plead guilty to manslaughter and he therefore does not fall within the precise terms of section 439 of the Crimes Act [the predecessor of s 22 of the Crimes (Sentencing Procedure) Act]. There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted. [16] The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the reliefs to the various witnesses of the burden of having to give evidence and potentially being cross-examined. [17] In the instant case his Honour found otherwise that the appellant was in any event remorseful. He had demonstrated his remorse almost immediately after the crime had been committed. He was however as a result of his Honour's findings which are implicit in the remarks which I have quoted, deprived of any benefit that he might expect for what I have described as the utilitarian value of the offer of his plea. [18] In my view the appellant should have been given that benefit. The jurisdiction of this court therefore should be invoked and intervention should take place.
The parts of these paragraphs which refer to the offered plea as evidence of contrition have no bearing here, where the conditional nature of the offer deprived it of effect as proof of remorse and where other matters, earlier referred to, positively excluded remorse.
Concerning the utilitarian value of an offer to plead, R v Oinonen was a very different case from the present. The offer in that case was not made conditional upon agreement as to a statement of facts. [It was clear from the offender's prior admissions that his offer constituted acceptance of the elements which the jury must be taken to have found and which were therefore the limit of what the Crown had proved.] Accordingly, there was no doubt concerning his willingness, if his plea had been accepted, to acknowledge the essential facts of the crime of manslaughter. Further, there was no conviction appeal. The offender's acceptance of the elements was never resiled from. The potential utilitarian value which the Crown had passed up by pressing the charge of murder was tangible. All the trial had achieved was a finding by the jury of the very facts which the appellant had shown, by his offer of a plea and by his conduct before and after, he was willing to admit.
In contrast, in the present case it is not shown that there was any potential for utilitarian advantage because, as noted by the sentencing judge, the applicant by conditioning his plea on an undefined statement of facts did not demonstrate willingness to admit the facts which were eventually found by his jury. There is no indication that, if pursued through an attempt to settle a statement of facts, this offer would have led to resolution of the issues which, in the event, had to be ventilated at trial.
In R v Pennisi [2001] NSWCCA 326 the offender had shot the victim intending, as he said, only to frighten him in connection with a commercial dispute. He turned himself in to police within 45 minutes of the homicide. He made a full confession and cooperated with police in every respect. Charged with murder, he offered prior to committal that he would plead guilty to manslaughter. The Crown rejected this and he was indicted and arraigned for murder. The jury's verdict was not guilty of murder but guilty of manslaughter, evidently on the basis of unlawful and dangerous act.
The trial judge allowed a 25% discount on sentence for the offered plea, which this Court considered appropriate: [27] As events turned out there was no utilitarian value in this case as the plea was not accepted. That does not reflect at all on the applicant and his offers to plead guilty to manslaughter were appropriately treated by her Honour upon the same basis as if they had been accepted. The gravamen of the submission made on the applicant's behalf is that given that plea and his immediate and complete assistance to police, the combined discount for both considerations should have been greater than 25%.
There is a contrast between the present case and R v Pennisi in the same respects as between the present case and R v Oinonen - as to which see [109] and [110].
In R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535 the offender had offered, in the week before his trial for murder and again during the trial, to plead guilty to manslaughter. This plea was not offered in the presence of jury. The charge arose out of a stabbing which occurred in the course of a protracted altercation involving several people. At trial the offender raised provocation but also raised self defence as a complete defence. He was convicted of manslaughter only. The learned sentencing judge, RS Hulme J, allowed no discount for the offer to plead guilty to the lesser offence. His Honour had not been referred to R v Oinonen.
Hidden J (with whom Greg James J agreed) held that a discount should have been allowed: [19] [RS] Hulme J passed sentence in the present case before the High Court handed down its decision in Cameron v The Queen (2002) 209 CLR 339, and the notion of a willingness to facilitate the course of justice had not yet been introduced into sentencing law. His Honour expressly took into account the applicant's remorse but he made no allowance for his offer to plead guilty to manslaughter. Here, in my respectful view, his Honour fell into error. The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant's control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial. [20] It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal. (As it happens, self defence could now give rise to the alternative verdict of guilty of manslaughter because of subsequent amendments to the Crimes Act: see Div 3 of Pt 11 of the Act and, in particular, s 421.) A plea of guilty at that stage would not have been accepted by the Crown and the trial would have proceeded in any event.
The reasoning in R v Cardoso was strongly influenced by the consideration that where the Crown is determined to prosecute a charge of murder an offender willing to plead guilty to manslaughter should not be denied a discount for the utilitarian benefit of that course solely because of the Crown's attitude, over which he or she could have no control and which the jury's verdict would invalidate. One factor of particular significance is that the pre-trial offer was made in circumstances or upon terms which made clear the culpability which the offender proposed to accept - and that is the culpability which the jury actually finds. Provided there is clarity in these respects, the fact that the trial has to some degree served the offender's own purposes, in that he has pursued the chance of outright acquittal, will not necessarily disentitle him altogether from some level of discount.
Because culpability for manslaughter may vary so considerably (for example, according to whether or not the offender intended to kill or to cause grievous bodily harm, whether provocation or excessive self defence is the basis of acquittal of murder, whether the offender was affected by abnormality of mind - and so on) the bare offer to plead guilty to the lesser offence may not indicate the particulars of criminal responsibility intended to be comprehended. The particulars of culpability which the accused means to admit may not be self-evident from the circumstances. If such particulars were not self-evident and were not clarified by the accused at the time of offering the plea then the sentencing judge will be entitled to place weight upon that fact in determining whether to allow any discount for the offer. If such particulars are spelt out or are ascertainable then the pre-trial offer can be compared with the verdict following the trial. The potential utilitarian benefit which was lost by rejection of the plea may then be identified and attributed to the decision of the Crown to reject the plea, making it unfair to deny the offender a discount.
The offender in R v Johnson [2003] NSWCCA 129 had offered, during the week before his trial for murder, to plead guilty to manslaughter. The Crown rejected this and the trial proceeded. He was acquitted of murder and found guilty of manslaughter. The offender acknowledged throughout the trial that he had killed the deceased but denied murder on the basis the Crown had not excluded self defence or, alternatively, provocation. The offender had stabbed the deceased after the latter had both made sexual advances to him and threatened him with a knife.
Bell J (with whom Giles JA and Carruthers AJ agreed) held that the offer of a plea of guilty to the offence which was, in the event, proved should have attracted some discount. Her Honour said: [42] … Hidden J [in R v Cardoso at [19]] referred to an offer to plead guilty to a lesser charge "which could fairly be justified on the available evidence". In the Crown's submission before a discount is allowed the sentencing judge must assess whether the offer to plead guilty to the lesser offence was one fairly open to acceptance by the Crown. In some cases an offer to plead guilty to manslaughter it was submitted may not evidence a willingness to facilitate the course of justice but rather be a cynical attempt to secure a position of advantage (in the unlikely event of a conviction for manslaughter). [43] The jury's verdict determines the characterisation in law of the offender's culpability for his or her unlawful killing. In any case in which the verdict is one of guilt of manslaughter it is difficult to see how the offender's offer to plead guilty to that offence might be held to have been not fairly open to acceptance by the Crown. It is not necessary to determine the matter since the Crown Prosecutor did not press any submission that in this case the applicant's offer to plead guilty to manslaughter was not fairly open to acceptance by the Crown. (This is not to say that the Crown was not justified in refusing the offer and seeking to have the jury's verdict on the more serious count).
Adopting the language of Bell J, the present case is one in which it was available to the sentencing judge to conclude that the applicant's offer was not "fairly open to acceptance by the Crown". That is because it was conditional upon facts to be agreed, any proposed version of which the applicant has never particularised. The only version the applicant has ever propounded, and which he still propounds in this Court, is one upon which a plea of guilty to manslaughter would have been traversed and would therefore have been rejected by the sentencing judge, if not by the Crown.
The discussion in [116] and [117] above may be adapted to the language of Bell J in R v Johnson. After his or her trial for murder an accused person may demonstrate that an offer to plead to the lesser charge of manslaughter could fairly have been accepted by the Crown and should be regarded as having had potential utilitarian value which was lost only because of the Crown's rejection, if the offer was made on terms which fully disclosed the circumstances and degree of culpability intended to be acknowledged by the plea, to facilitate comparison, after the trial, with the outcome. If the accused cannot demonstrate in this way that the offer could fairly have been accepted that does not necessarily mean that it would not be open to the sentencing judge to afford a discount. However if no discount is allowed, as in this case, then the task of demonstrating error will be that much more difficult.
The present circumstances can be contrasted with an offer of a plea of guilty of manslaughter on arraignment in the presence of the jury, which may justify some discount, if the jury finds manslaughter only, even though no detail of the basis of the offered plea has been specified by the accused. In that situation the offer is concrete and capable of immediate acceptance so that some utilitarian value could be derived notwithstanding that sentence proceedings to determine the facts might thereafter be necessary and might be protracted. In that situation the justification for any discount and the level of it is likely to be highly dependent upon the full circumstances, including the extent and outcome of any ensuing dispute over the facts.
In light of the above review of the authorities and consideration of applicable principles the Court sees no error in her Honour's reasoning quoted at [101] above. The applicant has no legitimate complaint concerning the absence of a discount on sentence for the conditional plea offer.

Ground 1 - sundry findings of fact on sentence

In further support of ground 1 the applicant has challenged a series of minor incidental findings by her Honour: that the applicant was enraged when he struck the deceased, that he had sought to diminish his conduct by claiming he was only annoyed with deceased rather than angry, that he had misrepresented the incident of 27 October 2013 as "just an accident" and that he had been reluctant to acknowledge his superior size relative to the deceased.
None of these findings was critical to her Honour's assessment of the objective seriousness of the offence, which she described as "a particularly egregious example of manslaughter". Even if all of the minor incidental findings referred to in the preceding paragraph were not sustained by the evidence, that would not invalidate her Honour's overall conclusion about objective seriousness. For that reason we need not refer in detail to the evidence which was available on each of these points. It is sufficient to say that we regard each of the findings challenged as having been well open.
Having regard to our earlier stated reasons for upholding her Honour's finding about the nature of the blow, the finding that the applicant had not shown remorse and the refusal of any discount for the conditional plea offer, it follows that ground 1 is rejected.

Ground 2 - manifestly excessive sentence

The applicant's ground 2, that the sentence was excessive, is supported by only one paragraph of written submissions which merely repeats in very summary form the claim under ground 1 that her Honour made unjustifiable findings of fact and erred in not finding the applicant remorseful and in not allowing a discount for his offer of a plea. The Court does not consider the sentence excessive having regard to the entirety of the findings recorded in the remarks on sentence, with which we see no reason to interfere. This ground also is rejected.

Orders

The orders of the Court are: 1. Leave is granted to appeal against conviction upon ground 3, involving a question of fact, and against sentence. 2. The appeals against both conviction and sentence are dismissed.

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: 17 November 2017

(Sentencing Procedure) Act 1999(NSW)

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