R v Knight

R v Fowler [2003] NSWCCA 321 R v El-Azzi [2004] NSWCCA 455 Plomp v The Queen (1963) 110 CLR 234 CASES CITED: De Gruchy v The Queen (2002) 211 CLR 85 R v Fernando (1992) 76 A Crim R 58 R v Newman and Simpson (2004) 145 A Crim R 361

D. Arnott - Crown COUNSEL: D.A. Wetmore - Appellant

S. Kavanagh - Crown SOLICITORS: Craddock Murray Neumann - Appellant

IN THE COURT OF CRIMINAL APPEAL 2005/287

GROVE J HOWIE J ROTHMAN J

THURSDAY 14 JULY 2005 Regina v Mark Dempsey KNIGHT Judgment 1 GROVE J: I agree with Howie J. 2 HOWIE J: After a trial by jury conducted before Barr J (the Judge), the appellant was convicted of murder. As a consequence of the conviction the Judge sentenced the appellant to imprisonment for 22 years with a non-parole period of 16½ years. The appellant appeals against his conviction and seeks leave to appeal against the sentence imposed upon him. 3 The appellant relied initially upon a number of grounds of appeal concerned with the manner in which the trial was conducted, admissibility of evidence, and the summing up. However counsel, who appeared on the appeal, withdrew all grounds of appeal except those arising from the evidence of a Crown witness named Rose. Although ground 8 asserted that the verdict was against the weight of the evidence, it was no longer asserted that the verdict was unreasonable or against the evidence but that rather that it was unsafe having regard to the admission of Rose's evidence. 4 The case presented by the Crown was of a circumstantial nature. It relied principally upon forensic evidence and, in particular, DNA evidence to identify the appellant as one of the persons involved in the attack upon the deceased that resulted in his death. By that evidence the Crown sought to show that the appellant's exculpatory version of events surrounding the killing of the deceased could not possibly be true.

A gaol murder 5 On 27 March 2000 at about 3.20pm a prisoner, Craig Dally, was found dead in his cell at the Bathurst Correctional Centre. He occupied cell number 58 in B4 wing. He had suffered 33 wounds to his body apparently inflicted by a knife or knives and his throat had been cut. He was Caucasian. 6 The appellant was also a prisoner at the Centre and occupied cell number 49 on the upper level of B3 wing. He had been housed in that wing for about 3 months. The appellant was of Aboriginal origin. 7 The deceased made a purchase in the activities area at about 2.40 pm and was not seen alive after that time by any of the witnesses called by the Crown. 8 At about 2.40pm Officer Connolly heard a groan and other sounds that led her to believe that a prisoner was being assaulted. She thought that the noise was coming from the shower area of B wing and rang the B3/4 wing officer, Officer Healey, and instructed him to check the area. Nothing was seen in the showers. Officer Healey and Officer McSpadden started to check inside cells in the two wings where the doors were open or, if the doors were closed, where any noise was coming from the cell. They started on the top level of the wings but found nothing of note. 9 When they reached the middle landing of B4 wing, Officer Healey came to cell number 22. The two prisoners, who shared that cell, were at the doorway, and a third prisoner, identified as the appellant, was at the back of the cell near a washbasin. He was naked from the waist up. This was about 5 minutes after Officer Healey had received the phone call from Officer Connolly. 10 Officer Healey failed to find any prisoner injured or anything that might account for the noises heard by Officer Connolly. 11 At about 3.30pm there was a muster of the prisoners and, when the deceased did not answer to his name, a check was made of cell 58. Officer Healey found the cell door open and the deceased lying towards the rear of the cell near the hand basin. There was a pool of blood on the floor surrounding the deceased and blood splattered on the rear wall of the cell. There were a number of footprints in the blood on the floor. 12 Police officers arrived at the wing at about 3.45pm. Senior Constable Kolder was the officer who principally carried out the gathering of forensic evidence. He examined and photographed cell 58. He took a number of swabs from apparent blood staining in the cell, stair landings in the wing and on the wall just outside the cell. He marked 13 shoe impressions in the blood in the cell and photographed them. The appellant's injury 13 The prisoners in the wing were searched for any injuries. On the basis of what Officer Healey had seen the prisoners who were housed in cells 22 and 49 were searched first. There was no sign of injury found on the prisoners from cell 22. As the police prepared to search the appellant and his cellmate, they noticed the appellant's right hand was bandaged. The appellant denied that he had been near cell 58 that day. He was barefoot and topless. He explained his injury on the basis that his "hand swells". He said he had seen a doctor and was given time off work. 14 The appellant was taken to the prison medical clinic that evening and to a hospital the next day so that his injury could be inspected and treated. It was found that he had sustained a laceration through the web of his hand between his thumb and index finger. The injury was consistent with a stab wound. 15 Police searches revealed that only one other prisoner had any injury and this was an old scar. Police investigations 16 All cells were searched but nothing was located of relevance. In particular, no weapon was found. 17 Police recovered two pairs of boots on the mesh landing outside cell 49, the cell in which the appellant was housed. One pair was John Bull work boots and the other Dunlop work boots. There were bloodstains located on various places on the Dunlop boots. Both pairs of boots were later sent to the Department of Analytical Laboratories (DAL). 18 When interviewed by the police the appellant denied ever having been issued with a pair of work boots. However, he said that about 3 or 4 weeks before the killing he had borrowed a pair of John Bull work boots. Usually he wore joggers.

Presumptive blood tests 19 On 28 March Constable Kolder carried out presumptive tests for blood in cell 22 by the use of Luco Crystal Violet. Positive results were obtained on the sink, the wall behind the sink and the floor in front of the sink. 20 A test carried out in cell 49 returned a negative result. 21 Later that evening further tests were conducted using a substance called Luminol, which fluoresces in the presence of blood. The tests revealed a trail of marks, apparently made by the toe of a shoe, going from cell 58 to cell 22. Tests taken on an area further than cell 22 were negative. Cell 22 was positive in all trafficable areas and around the sink. 22 Between February and April 2002 investigating police returned to Bathurst and again inspected cell 58. The cell had been locked since 27 March 2000 and no access had been given to it without permission of the officer in charge. Three areas of the western wall of the cell were swabbed and photographed in February 2002. These swabs were sent to the DAL. 23 In April 2002 further swabs were taken from show impressions on the cell floor and from blood droplets on the western wall. These were sent to the DAL. The appellant's account of events 24 Police interviewed the appellant on 30 March 2000. The appellant spoke generally of the situation in gaol and indicated that he did not "go out of my way to talk to white people". He spoke about obtaining cigarettes in gaol particularly before lockdown at 3.30pm on each day. He said "you gotta make sure you get your smokes" but that "you don't fucking stand up anyone for smokes and shit like that, you know what I mean". He said that prisoners developed a trade for smokes. 25 The appellant told police that on the day of the killing he attended education class and was wearing a green jumper, green trousers and a pair of joggers. He returned to the wing at about 2pm. He sat down with some fellow prisoners smoking "for a good, would be easy 20 minutes or something like that". He then went to his cell to see if he could get a cigarette but he had none. He asked "brothers" for cigarettes but they had no smokes. So he went to cell 22 to see a couple of mates and if they had cigarettes. They had no smokes and he was asking around for any. He obtained a couple of cigarettes and smoked one. He then went up to the top of the wing on the B4 side and tried to get some cigarettes. 26 The other cell next to his mate's was open. The door was ajar and he walked in. He knew who occupied the cell and he "wasn't a black fellow" He had seen "the old bloke around and I fucking never asked him for much before, never talked to him you know what I mean…..". When he walked in: …….there was two blokes and old mate was in the corner, you know what I mean, and then I realised….what I walked in on…They were in the corner. And like, I was sort of shocked and I couldn't, I walked in I sort of stood there like that and I got…..when I walked in I went, any smokes mate, like that. And I was……and I sort of stared for a minute cause I realised what they were doing, and old mate turns around to me and said "fuck off" and then he just flung something at me and hit me in the hand. And when he hit me in the hand, he sort of hit me, he, it sort of came that way, band that way , and I sort of spun out, you know what I mean. So I sort of pushed him, and when I pushed him the thing came out of my hand and he sort of stumbled over old mate who was laying on the floor, and he stumbled against his friend. Well, then he stumbled over a bit I sort of went over and I pushed him, like I pushed him back, and then he dropped whatever he fucking hit me with and like when he dropped it then, I just fucking pushed him harder and I backed back, and I backed out of the room and I ran downstairs.

Later the appellant explained that the person he pushed stumbled and "went over near the little sink a little bit". 27 The appellant described that there were two people in the cell and "old mate" was crouching down. The other person had something covering his face with two eyeholes cut out and he could not recognise him. He just stood up and swung at the appellant. He did not get any idea of the size of the person:

…….Cause I was sort of, I knew I was in deep shit, you know what I mean. I knew I'd seen something I wasn't suppose to have seen. I was spinning out about that, you known what I mean"

When the person swung at him, all he wanted to do was to defend himself:

….Push, bang, that was it. Got me through hand, I pushed back, old mate stumbled a little bit because he had his fucking, this thing i[n] my hand anyway, you know what I mean. So I pushed him back and that was it. I pushed him a bit further, I tried to knee him. As soon as he dropped I was gone then. 28 After he left the cell, in B4 wing, he returned to his own cell, in B3 wing. He wrapped his t-shirt around his hand. He was "spinning out" at the time and did not know what to do. He then went to his mates' cell. He got some flour and stuck it into the wound and washed what he could because "it was bleeding, pissing blood out everywhere". He threw the t-shirt away because he did not want to get into trouble. 29 The appellant was charged with murder on 27 September 2002. Prior to being charged he declined to participate in a further interview with police. 30 The police believed that at least one other person was involved in the murder and suspected the appellant's cellmate and the prisoners who occupied cell 22. DNA evidence (a) the boots 31 DNA material matching the appellant's profile was found on the John Bull work boots on the right side of the right boot near the elastic side and in drop-like stain on the back of the heel of the right boot. There was DNA material matching the deceased's DNA on the inside surface of the left side of the right boot. On the tag area of the left boot there was DNA material matching more than one individual not being either the deceased or the appellant. A similar finding was made on the inside of the left boot. 32 DNA material matching the appellant's profile was located on the Dunlop work boots on the top of the right boot between the front tag and the toe, on the back of the left boot. 33 DNA matching the appellant's profile was found on a tape lift from inside of the right Dunlop boot. This method was used to recover DNA material from the inner sole and heel of the boot as it was believed this was a more reliable test for showing who had worn the boots than the material recovered from the tape where other people might have picked up the boots in order to move them. There was evidence led in the defence case to the effect that the tape could have recovered some dried blood powder which had found its way into the inside of the boot from the surface in the period of 18 months from when the boots were taken into custody to when they were tested.

(b) blood swabs 34 Swabs taken in various places in cell 58, including the western wall near the sink revealed a match for the DNA profile of the appellant. A match for the appellant's DNA profile was also found on the chair from cell 58 and in the sink. There was also a match obtained from two shoe prints on the linoleum from cell 58. There was also DNA material matching that of the deceased recovered from a shoe print on the same linoleum.

Other blood evidence 35 There was evidence given as to blood splatters found in cell 58. That evidence related to drops of blood found at the extreme rear of the cell. Sergeant Paine gave evidence that these were "passive drops" that fell to the floor from an angle of about 90 degrees and without force. He concluded that these drops and others found near shoe impressions on the cell floor came from a source that was either stationary or slow moving. Four swabs taken from these blood drops were found to contain DNA material matching the profile of the appellant. 36 Sergeant Paine gave evidence that the bloodstain on the western wall of the cell was "projected blood pattern". It was consistent with a bleeding hand being flung back and contacting the wall. Swabs taken from this area were found to contain DNA material matching the profile of the appellant. 37 Evidence was given of analysis of the shoe impressions found on the floor of cell 58 and comparisons with the Dunlop and John Bull boots. The right Dunlop boot had a unique bubble pattern that was evident on certain shoe impressions on the floor near the back, western wall.

The Crown case at trial 38 There was no issue at the trial that the deceased had been murdered by whoever had attacked him. The intent to kill on the part of the person or persons who stabbed the deceased was proved by the nature of the injuries inflicted. The issue was whether the appellant was the person, or one of the persons, responsible for the injuries. 39 The Crown relied upon the finding of such material on the floor at the back of the cell, on the back wall and in the sink. The Crown also relied upon the evidence that the appellant had shed blood in that area when he was either standing or moving slowly and that the appellant's wounded hand had come into contact with the back of the cell. There was also evidence of the appellant's blood being on the clothing of the deceased. Further the Crown relied upon evidence of a trail of blood from cell 58 to inside cell 22 where the appellant had been seen shortly after the killing at a washbasin. 40 It was the Crown case that this evidence was inconsistent with the account given by the appellant to the police in his interview in respect of where he was, and what he did, in cell 58 and of his having returned to his own cell after leaving cell 58. Apart from the evidence of the trail of blood to cell 22 but not beyond it, there was evidence that no prisoner had gone through the gate between wing B4 and B3 following the stabbing. 41 The Crown alleged that the appellant had worn the Dunlop shoes at the time of the killing of the deceased and that the John Bull boots had been worn by some other person who was taking part in the attack. The Crown relied upon both the finding of DNA material matching that of the appellant in the Dunlop boot and the fact that there was no blood found on the joggers that the appellant said he had been wearing at the time. 42 As part of its circumstantial case the Crown relied upon the injury suffered by the appellant as being consistent with it being occasioned during the course of a very violent knife attack upon the deceased.

The defence case at trial 43 The appellant did not give evidence. In effect he relied upon the account given to police in his interview taken on 30 March 2000. 44 Mr Boettcher gave evidence challenging some of the conclusions reached by Ms Franco particularly in respect of the finding of the DNA material matching that of the appellant's profile in the Dunlop Boot.

Grounds of Appeal The witness Rose and motive Ground 1: The trial miscarried by reason of the learned trial Judge erring in allowing in unfairly prejudicial evidence from the witness Rose Ground 2: The trial miscarried by reason of the learned trial Judge erring in not giving a direction in terms of section 165 of the Evidence Act as to the reliability of the evidence of Ross Ground 3: The trial miscarried by reason of the learned trial Judge erring in not finding there was no motive attached to the prisoner for the murder and should have directed the jury accordingly. 45 The Crown called a prisoner, Rodney Wayne Rose. He had known the deceased for about 4 months prior to the killing. At some time shortly after the deceased had been placed "one out" in cell 58, that is being housed in a cell by himself, and about 3 or 4 weeks before the killing, he had a conversation with Rose about wanting to move. The deceased said in general terms:

He wanted to move over to the C wing pretty urgently, he was having hassles by the kooris being hit up for cigarettes and that he was just sick and tired of it. 46 It will be recalled that the appellant is an Aboriginal and the deceased was Caucasian. It will also be recalled that in his interview with police the appellant had given an account of trying to obtain cigarettes on the afternoon of the killing and that he went into cell 58 for that purpose even though he had little to do with any of the non-koori prisoners, including the deceased. 47 There was no objection taken to the introduction of this evidence at the time it was led. Although counsel for the appellant cross-examined Rose, he did not touch on this evidence. 48 During the course of the summing up the following occurred:

HIS HONOUR: Are there any other directions you are asking for? McDERMOTT: Yes, in relation to motive, or lack thereof. HIS HONOUR: I noticed you addressed on that. In fact there is evidence of motive, that might be considered by the jury to be evidence of motive and it is what the deceased said to Mr Rose shortly before he was killed. He said he was being stood over by the kooris and wanted urgently to be transferred back to the - McDERMOTT: I think I objected to that. HIS HONOUR: I am not aware of any objection to that. I was surprised when you told the jury yesterday there was no evidence of motive. McDERMOTT: As I understand it, that was objected to your Honour.

There was a short discussion as to whether counsel did in fact object to the relevant portion of Rose's evidence and the basis upon which he would have objected to it. After the Judge indicated that counsel had not objected to it, the transcript goes on:

McDERMOTT: I thought I had your Honour. I don't press my application in that case. HIS HONOUR: I want to be completely fair to you. If you think that you ought to have taken an objection and didn't, then it may not be too late for you to apply for that evidence to be withdrawn, but you will need to satisfy me that the evidence ought not to have been let in. So let's assume the evidence is being given now. Let's assume that you are not objecting to it, what do you say about it? McDERMOTT: It does not specifically refer to my client, it is just a general - HIS HONOUR: Your client is a koori. McDERMOTT: Yes, but there were numerous kooris there. It is just like saying all the white people in the gaol want to get me. That covers a multitude of people. HIS HONOUR: It is talking about standing over, talking about being hit up for cigarettes and that. Your own client's account is that he went to that cell for tobacco. So there are two connections aren't there? McDERMOTT: Yes your Honour. HIS HONOUR: You say it is prejudicial? McDERMOTT: Yes your Honour. HIS HONOUR: Of course by that you mean unfairly prejudicial. McDERMOTT: Yes. HIS HONOUR: Why unfairly prejudicial? McDERMOTT: Because it could attribute to him a motive, whereas it does not specifically refer to Knight has been hitting me up for cigarettes and he is sick and tired of that. It is a general statement in relation to kooris. There could have been many other kooris other than Knight who had been hitting him up for cigarettes. HIS HONOUR: Anything else? McDERMOTT: No. HIS HONOUR: Mr Crown? CROWN PROSECUTOR: There is evidence of his statement at the time he made the statement and evidence of the state of affairs as he reports it as existing in his life. He is worried about people, him being hit up by the kooris and shortly after making that statement he is found dead in his cell. 49 The Judge indicated that he accepted the evidence was admissible on that basis, as a state of affairs, but raised the question whether the jury ought to be told that they could use it as evidence of motive. The transcript goes on:

CROWN PROSECUTOR: In the interests of providing the fairest possible trial to the accused I ask your Honour just to leave it as a statement of the state of affairs. If your Honour is doing that, I would be asking for a direction that the Crown does not have to prove a motive nor is the Crown entitled to ask people to speculate about motive. HIS HONOUR: What direction were you intending to ask for on motive Mr McDermott? McDERMOTT: That the accused didn't have a motive, however, the Crown - HIS HONOUR: I am not going to tell them that. McDERMOTT: If your Honour won't say that I think my friend's proposition is quite reasonable. HIS HONOUR: I'll tell them that they may not use evidence of what the deceased said to Rose as evidence of the motive of the accused and I will tell them that there is no other evidence of motive. I will tell them that the Crown does not have to prove motive. McDERMOTT: Yes, I think that's probably - those were the matters, your Honour. HIS HONOUR: I'll tell them that if there were proof of motive that might be a circumstance the Crown might rely on. For example, a case in which there is evidence of motive might be considered stronger than a case in which there is not evidence of motive. It's all a matter of circumstances. Did you want to ask for any other directions? McDERMOTT: No your Honour, not at this stage. 50 The Crown then raised the issue of whether any warning should be given in respect of the evidence of Rose under s 165 of the Evidence Act as follows:

CROWN PROSECUTOR: Perhaps I should raise, my learned friend hasn't seen it, in relation to that statement of Rose it is hearsay should your Honour consider a 165 warning in relation to that in any event. HIS HONOUR: Well, it is hearsay. What things would cause it to be unreliable? CROWN PROSECUTOR: I'm not asking for the direction. I'm just drawing your Honour's attention to it if I may leave it at that. HIS HONOUR: Yes, that's very fair, Mr Crown. Do you want to say anything about this Mr McDermott? McDERMOTT: Only to the fact that it is hearsay, your Honour. HIS HONOUR: Do you want a direction? McDERMOTT: Yes, yes, I do. HIS HONOUR: What do you want me to tell them about what matters may cause the reported words of the deceased to be unreliable? McDERMOTT: Well, it's hearsay, that he was a friend of the deceased. HIS HONOUR: Why would that make it unreliable? McDERMOTT: Well, it could well be that his evidence could be biased. He was a close friend. HIS HONOUR: Do you think Rose's evidence might have been biased? McDERMOTT: Yes. HIS HONOUR: I wonder how real this debate all is. This a man who was obviously in fear, he obviously had good reason to be in fear. He was done to death within a very short time after these events and I am being asked to direct the jury that his expression of fear as reported to Mr Rose might be unreliable. It's all a bit unreal, isn't it? McDERMOTT: Well, your Honour, it's hearsay. It's biased. Those are the matters I put to your Honour. HIS HONOUR: How would the jury use a direction that the evidence of what Rose said might be unreliable? How could that logically affect the deliberations of the jury in this circumstantial case? McDERMOTT: Well, one never knows but it could well be that they take the view that it was sort of a self-serving situation where the deceased said something to Rose and that was that. That's probably that, plus the perceived bias of the witness. HIS HONOUR: How was it self-serving? McDERMOTT: Well, it's said by one friend to another. Obviously Rose has certain attitudes in relation to this matter and has reason for wanting to give evidence being cellmate of the accused - of the deceased. HIS HONOUR: Rose doesn't damage your case. McDERMOTT: Sorry, your Honour? HIS HONOUR: Rose doesn't hurt you. McDERMOTT: Well, he was a cellmate and a good friend of the deceased. HIS HONOUR: Yes, but he doesn't hurt you. McDERMOTT: He doesn't hurt me, I know, your Honour. HIS HONOUR: No, I don't think I'll give the direction.

Admissibility of the evidence 51 In my opinion, with respect, the Judge was clearly correct in his view that the evidence of Rose of the conversation with the deceased was relevant and admissible. The conversation was relevant as to the state of mind of the deceased at a time reasonably proximate to the killing. It was also hearsay evidence admissible as to the fact that he was at the time of the conversation being "hassled" by koori prisoners for cigarettes and wanted to leave the wing urgently. 52 The evidence was relevant as to the deceased's relationship with other prisoners in the wing and, therefore, as to who might be responsible for his death. Had he complained that he was being hassled by some other particular group of prisoners in some other situation than over cigarettes, that fact would have been a relevant circumstance to exclude the appellant as a possible candidate for the killing. The evidence implicated the appellant not because he was a koori or because the deceased was being hassled by koori's for cigarettes. It was a relevant circumstance because the appellant was a koori who at the time of the killing had entered his cell in order to obtain cigarettes. 53 Ultimately counsel for the appellant during the course of oral argument before this Court conceded that the evidence of the conversation was relevant but submitted that it had little weight. It was argued that in light of its unfairly prejudicial effect, the evidence should have been rejected under s 137 of the Evidence Act.

Evidence of Motive 54 Before the trial Judge it was argued on behalf of the appellant that the evidence was unfairly prejudicial in that the jury might use it as motive for the appellant to kill the deceased whereas in truth the appellant did not have such a motive. It was submitted to the Judge that he should direct the jury to that effect, but the Judge refused to do so. 55 In asserting that there was evidence of "motive", defence counsel meant that there was no evidence that the appellant had any purpose or interest in motivating him to attack or kill the deceased. In that regard counsel was clearly correct. But the evidence of the conversation given by Rose did not suggest that the appellant or any other person did have a purpose or interest in killing the deceased. There was no possibility in my view that the jury could have used that evidence to prove that the appellant, or any other koori prisoner, had a motive in that sense of the word, to kill the deceased. 56 What the evidence of the conversation did show was that there might have been a circumstance in which the killing of the deceased arose and that this circumstance was one in which the appellant might have found himself at the time of the killing. The circumstance was that at the time of the killing the deceased was being "hassled" for cigarettes by one or more koori prisoners. As the appellant was a koori prisoner and as at the time of the killing, on his own admission, he entered the cell of the deceased in order to obtain cigarettes, the evidence might explain how the accused came to kill the deceased or to be a party to the killing in the absence of a motive, that is in the absence of a purpose or interest in killing the deceased. 57 As there was no reasonable possibility that the jury could use the evidence of the conversation to prove that the appellant had a motive to kill the deceased in the sense apparently meant by defence counsel it was not unfairly prejudicial within s 137 of the Evidence Act. I cannot see how the jury might otherwise misuse the evidence, and neither counsel appearing at the trial nor counsel appearing before this Court could suggest one.

Warning on the unreliability of the evidence 58 Defence counsel sought a warning under s 165 of the Evidence Act on two bases: firstly, that Rose was a friend of the deceased and, therefore, might be biased and, secondly, that the contents of the conversation, so far as it was evidence that the deceased was being hassled by kooris, was hearsay. 59 There was no reason for the Judge to have given a warning to the jury on the basis that the witness might have been biased. Firstly, it was never suggested to Rose that his account of the conversation, or any part of his evidence, was motivated by bias or some other purpose other than simply to give an account of what had happened between him and the deceased. Secondly, I fail to understand how friendship with the deceased would itself indicate that the witness was biased against the accused or in any other way suggest that his evidence might be unreliable. Thirdly, even if his friendship with the deceased was capable of giving rise to the possibility of unreliability, that would not bring the evidence within the scope of the section. Bias or a motive to lie is a matter affecting the honesty of a witness and is a matter well within a juror's understanding and appreciation as part of the general experience of life. It is not a matter about which the court has some special knowledge or understanding that it needs to impart to the jury: R v Fowler [2003] NSWCCA 321 at [184] to [188] applied in R v El-Azzi [2004] NSWCCA 455. 60 The evidence was hearsay evidence insofar as it could be used by the jury as evidence of the truth of what the deceased said to Rose and, therefore, fell within s 165(1)(a) of the Evidence Act. Defence counsel did not indicate, when asked to do so by the Judge, what it was that he wanted to be said about the evidence in this regard or how the fact that it was hearsay made it unreliable in the circumstances of this case. Counsel simply repeated that the evidence was hearsay and was biased. It seems clear from the interchange between the Judge and counsel that his Honour thought that there was nothing that indicated that the statement was unreliable in the particular circumstances of the case. In those circumstances it was open to the Judge to find, as he did, that there was a good reason not to give a warning under s 165(3) even though he did not give elaborate reasons for this decision. 61 Counsel appearing for the appellant in this Court similarly only relied upon the fact that the evidence was hearsay and that Rose was biased as supporting the ground of appeal without indicating in particular what it was that made the evidence unreliable or what the Judge should have said to the jury about the evidence in that regard. 62 In my opinion, there was no error in the way the Judge ultimately approached the evidence of Rose and there was no need for him to give any warning under s 165 in respect of that evidence. Direction on motive 63 A motive or lack of motive to kill the deceased was merely a circumstance to be taken into account with any other relevant circumstance. There is no requirement that a trial judge mention every circumstance in favour of the Crown or to the benefit of the accused when reviewing the respective cases. Of course there may be a case where a failure to refer to a circumstance in favour of an accused may be so significant that the result would be that the summing up lacks balance and a miscarriage of justice has occurred. 64 Clearly the presence of a motive for a person to commit a particular crime against a particular person can be relevant to a determination of whether that person committed the crime under scrutiny: Plomp v The Queen (1963) 110 CLR 234. So the fact that a person does not apparently have a motive to commit a particular crime against a particular person might be evidence that he did not commit that crime: De Gruchy v The Queen (2002) 211 CLR 85 at [28]. 65 However, in De Gruchy, there was a distinction drawn between a case where there was positive proof of the absence of motive and a case where there is simply no evidence of motive, which was the situation in the present case. The joint judgment of Gaudron, McHugh and Hayne JJ states (footnotes not reproduced): [29] Although absence of motive is relevant, the appellant's argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. And although the character evidence called on behalf of the appellant tended to negate possible motive, it by no means established the absence of motive.

[30] The absence of evidence of possible motive is clearly a matter to be taken into account by a jury, particularly in a case based on circumstantial evidence. However, if, as in the present case, the prosecution does not have to establish motive, it is difficult to say that the absence of evidence in that regard is a matter of "positive significance", either in the sense that it is a weakness in the prosecution case or a strength in the defence case. It might be otherwise if there were positive evidence that the accused lacked motive. However, that would be a most unusual case. The present is not a case of that kind. It is simply a case where there was no evidence of motive. 66 There was no evidence in the present case that any person or group of persons had a motive to kill the deceased. But there was nothing to suggest that the killing was an intentional act in that it was designed to achieve a particular purpose, end or interest other than the killing of the deceased or at least the infliction of grievous bodily harm upon him. There was nothing about the killing or its circumstances that suggested that the killing was premeditated in that it was planned by the perpetrator or perpetrators to achieve some purpose or object in respect of which the assault upon the deceased or the killing was purely incidental. In such a case the absence of evidence of motive on the part of a person accused of the killing has, in my view, little significance. This is particularly so in a situation where the use of violence by one person against another, without any premeditation, plan or purpose would not be an unusual event. In the case of a gaol murder the fact that the accused does not have any motive to kill or injure the victim does not seem to me to carry with it the same force or significance to a circumstantial case seeking to identify the accused as the perpetrator of the crime than it might in other cases. 67 The Judge did indicate at one stage that he would give a direction to the jury to the effect that a case where there was evidence of motive would be stronger than one where there was no evidence of motive, and on another occasion indicated that he would tell the jury that there was no evidence that the accused had a motive to kill the deceased, but ultimately said nothing about motive at all. He was not asked to give any direction on this topic at the conclusion of the summing up. In accordance with the wishes of defence counsel he said nothing about how the jury were to use the evidence of Mr Rose. 68 In the circumstances of this case, I do not believe it was necessary for the Judge to say anything to the jury about the absence of evidence of motive on the part of the appellant. The absence of complaint by defence counsel about the failure of the judge to give any direction about motive confirms my view that this failure did not produce any miscarriage of justice. Defence counsel had raised with the jury that there was no evidence of motive on the part of the appellant, and the judge said nothing to undermine the relevance or strength of the submission: see De Gruchy at [31]. 69 Grounds 1 to 3 have no merit and should be dismissed. All the other grounds of appeal, except Ground 8, were abandoned. They were without merit in any event. As Ground 8 was relied upon only on the basis that the evidence of the witness Rose had resulted in an unsafe verdict, that Ground should also be dismissed. It follows that the appeal against conviction should be dismissed.

Sentence 70 In sentencing the appellant, Barr J made the following statement as to the facts of the murder as found by him:

The offender and at least one other inmate entered the deceased's cell and stabbed him repeatedly with a sharp instrument. There were twenty identifiable stab wounds to the neck, chest and abdomen. Three closely grouped wounds in about the middle of the chest were probably the most serious. The deepest of them was eighty-five millimetres long and damaged the heart and the aorta. The deceased put up a struggle. All over his hands, fingers and forearms were wounds his attackers caused as he tried to defend himself. During the attack the offender's right hand was pierced through and bled freely onto the floor of the deceased's cell and the boots the offender and a companion were wearing.

The offender took part in an interview with the police. He told them that he had entered the deceased's cell to ask for tobacco. He had seen others in the cell, each of whom he referred to as "old mate". Part of what he told the police suggested that he had seen two people, part three. He named none of them. He said that one of them had pushed him and had pierced his hand with what he called a "gizmo". Everything he said was calculated to protect the identity of the attackers and to exculpate himself. The jury rejected that version.

The evidence shows that there were at least two attackers. No weapon was found. The number of stab wounds and cuts on the body of the deceased suggests that the attackers had more than one weapon, but it is not possible categorically to say so. The jury were told that they could find the offender guilty if he took part in the attack or was present, assisting or encouraging it or standing by ready to assist.

In view of the number of injuries inflicted and the various parts of the cell where the offender was from time to time, judging by the places where his spilt blood was found, the only conclusion I can come to is that he played an active role in the attack. Such an active participation in an armed attack by two men on one encompasses a high degree of criminality. It would be no less even if the offender was not himself armed, such was the role he must have played.

There is no evidence why the offender killed the deceased. Even if there was a difference of opinion about tobacco that would scarcely explain such a savage attack. 71 The Judge described the offence as follows:

The murder of the deceased was a wicked and violent act. The offender must have known that that was what he was about when he went to the deceased's cell. It could not have been an accident that there was a weapon or weapons there with which to attack the deceased. The deceased was outnumbered. The intent was to kill. The attack was sustained and the injuries many. An injury to the neck, which I am satisfied was inflicted after the principal wounds that I have described, slit the throat wide open. Severing the major arteries and veins on both sides of the neck and marking the anterior surface on the spinal column. That wound alone bespeaks great savagery. The offence was for these reasons a serious one of its kind. 72 In relation to offences of violence committed within the prison system the Judge said:

The community has an interest in the rehabilitation of gaol inmates. For that to happen they must be able to serve their sentences safely and constructively. Yet they are particularly vulnerable people. They have no choice about where they live or work. They cannot choose the company they keep. Experience suggests that the system of protection which operates in the gaol system can never be a complete answer to the risk of violence perpetrated by inmates on inmates. It would be impossible to place every inmate on protection. In imposing sentences for offences committed on gaol inmates, the Court must therefore impose salutary sentences calculated to discourage such offences in recognition of the vulnerability of gaol inmates and to promote the community interest in the rehabilitation of offenders. 73 It was not argued in support of this application that the facts as found by the Judge or his assessment of the seriousness of the offence were in error. 74 The appellant was aged 35 years at the time of the offence and 39 years at the date of sentence. He had a criminal record dating back to his late teens for drug-related offences, dishonesty and matters of violence of no great gravity. However, his criminal record deteriorated during the 1990's and he was dealt with in Queensland for offences of some seriousness. In 1994 he was sentenced to imprisonment for 9 years for two charges of stealing with violence whilst armed. In 1997 he was sentenced to imprisonment for 3 years for offences including escape and assault occasioning harm whilst armed and in company. Barr J noted that the appellant had been convicted of eight offences of violence, six of which included the use of weapons or the pretence of being armed. The appellant had been transferred to this State to serve the sentences imposed upon him in Queensland and was awaiting transfer to Broken Hill at the time of the murder. 75 As has already been noted, he was an Aboriginal man. He had the benefit of a stable and supportive upbringing in the Wentworth area in a family that was well respected and positively involved in the community. His family described him as being a bright and well-adjusted child. He left school in year 10, although apparently academically gifted, in order to pursue his interest in aboriginal music. The appellant has travelled extensively throughout Australia and spent a period of three months in India. 76 His family lost contact with him from 1989 until his arrest in Queensland in 1999 and believe that over that period he came under the influence of associates and substance abuse. The family had not observed problems with alcohol, anger or violence in him. The appellant, however, admitted to abuse of cannabis and alcohol. 77 Apart from the current offence, the appellant was well regarded by prison officers and was viewed as an elder by other koori prisoners and a positive influence on younger prisoners. 78 Counsel for the appellant who appeared on sentencing before the Judge relied upon the Fernando considerations in relation to the sentencing of persons of the Aboriginal race. The Judge, however, came to the view that, by reason of the appellant's background, those considerations did not apply. His Honour remarked that the appellant had "turned his back on his opportunities and resorted to a life of drugs, dishonesty and violence." The Judge concluded that the appellant "alone was responsible for the decision he made". 79 The ground of appeal against sentence as originally filed asserted that the Judge was in error in his approach to sentencing the appellant based upon his Aboriginality. No such argument was maintained, or could be maintained, by counsel appearing for the appellant before this Court: see R v Newman and Simpson (2004) 145 A Crim R 361 at [61]. Rather it was submitted that his Honour gave insufficient regard to the fact that the appellant's criminal record commenced while he was absent from the support of his family and so was more vulnerable to external influences than might otherwise have been the case. 80 In particular, it was submitted that the Court should take notice of the fact that racism and prejudice against persons of the Aboriginal race, and other minorities, within the general community is such that it is more difficult for such persons to survive without resorting to drugs and crime when without family or other community support. It is unnecessary for present purpose to determine whether there are other considerations that might apply to persons of Aboriginal race or other minorities than those specifically addressed in Fernando. In the present case, even if the Court were prepared to take judicial notice of the fact upon which reliance is placed, there is no reason why the Court should find that it had anything to do with the present crime or the appropriate sentence to be passed for it. 81 The simple fact is that the appellant is an intelligent and self-reliant individual who has apparently been able to travel throughout Australia and abroad at will because, as he told the psychologist, he "just wanted to see the world" and had no interest in settling anywhere. There is nothing in the material to suggest that he could not have resumed contact with his family or returned to Wentworth at any time he chose to do so. There is nothing in the psychological report or the background reports, apart from the view expressed by his parents, that suggests his criminal conduct was a result of his loss of contact with his family. To the contrary the appellant admitted to the psychologist that he had commenced using cannabis after his return to Wentworth from a trip to South Australia to pursue his musical interests and as a result became lazy and lost motivation to study. 82 In any event, I find it quite impossible to see how such a consideration as is relied upon by counsel for the appellant could account for the violence displayed by the appellant in his offending generally or could have the slightest significance in determining the appropriate sentence for a savage murder whatever might have been the circumstances surrounding it. 83 There has been no error shown in the Judge's approach to determining the sentence to be imposed upon the appellant for a serious case of murder. The sentence was a heavy one but in my opinion was within the exercise of discretion available to the Judge. 84 I propose that the appeal against conviction be dismissed. I would grant leave to appeal against sentence but dismiss the appeal. 85 ROTHMAN J: I agree with Howie J and the orders proposed. **********

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