R v. McIntyre [2002] NSWCCA 29

Court of Criminal Appeal (NSW)|2002-02-15|Before: Hodgson JA, Levine J, Howie J, Bell J

CITATION : R v. McIntyre [2002] NSWCCA 29 revised - 21/02/2002 FILE NUMBER(S) : CCA 60401/01 HEARING DATE(S) : 15 February 2002 JUDGMENT DATE : 15 February 2002

PARTIES : Regina - respondent David John McIntyre - appellant JUDGMENT OF : Hodgson JA at 1; Levine J at 54; Howie J at 55

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70041/00 LOWER COURT JUDICIAL Bell J OFFICER :

COUNSEL : Mr. M. Thangaraj for appellant Mr. R.A. Hulme for respondent SOLICITORS : Hugo Schleiger & Associates for appellant S.E. O'Connor for respondent CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Murder - Appeal - EVIDENCE - Sexual mutilation of victim's body - Evidence of sexual interest of appellant in deceased (a 14-year-old boy) - Whether relevant - Whether prejudicial - Whether wrongly admitted. LEGISLATION CITED : Evidence Act 1995 ss.65, 137. DECISION : Appeal dismissed; Application for leave to appeal from sentence dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60401/01 HODGSON JA LEVINE J HOWIE J Friday 15 February 2002. REGINA v. David John McINTYRE Judgment 1 HODGSON JA: On 26 March 2001, the appellant was indicted before Bell J on a charge that he, between 29 July 1999 and 11 August 1999 at Coffs Harbour in the State of New South Wales, did murder Luke Gregory. He pleaded not guilty and the trial proceeded before Bell J and a jury. 2 On 24 April 2001 the jury returned a verdict of guilty. On 19 June 2001 Bell J sentenced the appellant to imprisonment for twenty-two years, commencing 14 August 1999, with a non-parole period of seventeen years, expiring on 13 August 2016. 3 In the original notice of appeal, the appellant indicated a desire to appeal against conviction and sentence. However, only one ground of appeal is relied on, namely that the trial judge erred in admitting certain evidence, so it is apparent that the application for leave to appeal against sentence is not being pursued. 4 I will briefly summarise the Crown case at the trial. 5 The body of the deceased, a fourteen-year-old boy, was found on 10 August 1999 near Sealy Lookout Road in Bruxner Park, Coffs Harbour. At the trial, issue was taken on the identification of the body, but the Crown case on this was strong and no issue is taken on appeal. The deceased was wearing a jacket and shirt but no pants or underpants. His legs were enclosed in a black plastic garbage bag. Post mortem examination disclosed two stab wounds, either of which would have been fatal, one to the throat, the other to the heart. It also disclosed injuries inflicted after death. Firstly, the penis and scrotum had been cut off and were found in a separate plastic garbage bag near the body. Second, the anus showed evidence of traumatic injury. Third, there was a long incised wound on the right thigh extending down to the bone, with six superficial marks at the site, consistent with being saw marks. There was no substantial issue at the trial as to these matters. 6 There was also evidence that the death occurred at least five days prior to 10 August 1999, from the condition of the body and also insect fauna found on the body. It was contended for the appellant at the trial that the insect fauna suggested that the body had been there no more than about five days, although the expert who gave evidence said it could have been somewhat longer. 7 The appellant, who was aged forty-five in 1999, had been a friend of the deceased's mother, Jeanette Gregory, for some years. Mrs Gregory had lived close to the appellant's house in Anderson Street, Bayldon, with her three children, Matthew, Luke (the deceased) and Jamie. She was a single mother. The appellant used to take the boys on fishing and camping trips. In mid-1999, Mrs Gregory moved to Bonville, a suburb about 14 kilometres from Bayldon. The deceased commenced to spend much of his time at the appellant's home and sometimes in the home of other friends in the Bayldon area. 8 Evidence was given by the deceased's mother that about two weeks prior to his death, that is in about mid July 1999, the deceased returned to her home. According to the mother, the deceased was visibly upset, and when questioned by her, told her the appellant had said to him that he could keep a puppy at the appellant's house if the deceased allowed him, the appellant, to "suck his doodle". Mrs Gregory advised the deceased against returning to the appellant's home, but the deceased said he could look after himself, and was going to sleep with a knife under his pillow or mattress, to protect himself and another boy from the appellant. 9 It is the admission of some of that evidence that is challenged on this appeal. 10 Another acquaintance of the deceased, James Nelson, who was the father of two friends of the deceased, gave evidence that the deceased stayed with him between about 18 July and 22 July 1999. According to Mr Nelson, when he arrived, the deceased said he had spent the previous night at the appellant's home with a friend, and also said words to the effect: "I sleep with a knife under my pillow, I don't trust Dave", Dave being the appellant. 11 Some time after this, the appellant collected the deceased from Mr Nelson's house. It is not entirely clear on the evidence whether this was on 22 July or Wednesday 28 July. In any event, it is clear that the deceased spent the night of Thursday 29 July at the appellant's house. The appellant on that day was helping Helen McIntyre, the ex-wife of his brother, in a move; and at about 10pm on that day the appellant and Mrs McIntyre went to the appellant's house, where they found the deceased sleeping in the rain on the front veranda of the house. 12 On Friday 30 July, the appellant was again helping Mrs McIntyre with her moving, and was with her until about 9pm, although it appears that he returned to his own house at about 4pm in the afternoon for a brief visit. On that day, the deceased spent the afternoon in the company of some friends. One of them, Jason, had a car with a flat battery, and he offered to take the deceased and others joyriding if a battery could be found. The deceased gained access to the appellant's home through a window, found the appellant's car keys, used them to open the bonnet of the appellant's car, and took the battery from the appellant's car, an unregistered Chrysler Scorpion. The battery was put into Jason's car, and Jason drove the deceased and some friends to the home of another friend. 13 Somewhat later, the police arrived and made enquiries about the stolen car battery, which they recovered. The police had in fact been contacted by the appellant, who discovered the theft of the battery when he returned home, apparently about 9 o'clock, and was told by a neighbour that the deceased and some friends had been seen at the car. 14 According to evidence of some of the deceased's friends, the deceased left them at about 10.30pm that evening, saying he was going to stay at the appellant's home and walking off in that direction. 15 On the morning of Saturday 31 July, one of the deceased's friends went to the appellant's house and asked if the appellant had seen the deceased. The appellant replied to the effect that he had not seen him since the previous afternoon. 16 Later that morning, the appellant's sister-in-law took the appellant to a family property at Glenreagh for the weekend: this had been pre-arranged. On the way, the appellant dropped a receipt at the police station, which had been required so that he could collect his battery from the police. 17 On the evening of Sunday 1 August, the appellant's half-brother drove the appellant back to the appellant's home, taking with them a battery from a farm utility. The appellant installed this battery in his car, then the two of them set off in two cars to go back to Glenreagh. On the way, the appellant stopped and the half-brother also stopped, and the appellant told him that he wanted to go to the toilet. Then the appellant turned into Sealy Lookout Road, and he joined his half-brother some time later. 18 On Monday 2 August the appellant's sister-in-law drove the appellant back to his home. 19 On Thursday 5 August the appellant obtained a loan of $700 from Fast Finance, and between 6 and 8 August he made arrangements for his carpets to be cleaned. 20 On 7 or 8 August, neighbours saw the appellant hosing down a concrete path outside his back door and the area where the appellant normally parked his car. 21 On 9 August a carpet cleaner came. According to his evidence, he saw a pattern of staining in the second bedroom, about one foot in diameter, and around the doorway of the lounge room. He used grease release to uplift these stains, this product being able to remove a variety of stains including blood. He saw the appellant washing the wall of the second bedroom adjacent to a waterbed there. 22 On Thursday 12 August, another neighbour noticed that the appellant's garbage had not been emptied, that there was mattress material protruding from it. 23 On 14 August the police executed a search warrant on the appellant's home. Their evidence was that they found a heavily stained foam mattress in a garbage bin in the rear yard of the premises, which had been cut into pieces. The staining on the mattress returned a positive presumptive test for the presence of blood. The interior of the bin also had staining, which returned a positive presumptive test for the presence of blood. The police found a saw located in the garbage bin, which had some staining and which also returned a positive presumptive test for the presence of blood. Pieces of a foam mattress were found under the house, portions of which fitted with those found in the garbage bin. A pair of boy's Nike joggers with staining was located in a bag hanging on a wall under the house. The staining returned a strong positive result for blood. Residual staining was observed on the carpet in the second bedroom of the appellant's home: this staining returned a positive result for the presence of blood. There were also other observations made. 24 The police took possession of the appellant's vehicle subsequently, from the Glenreagh property. An examination of the boot of that vehicle revealed apparent blood staining on a black mat, together with flaky deposits of dried blood. 25 Evidence was called from a DNA expert. That was to the effect that the DNA recovered from the mattress and the black mat in the car had the same DNA profile as DNA recovered from the deceased, and that fewer than one in ten billion people in the general population had that DNA profile; and that the DNA recovered from the carpet in the second bedroom had the same DNA profile as the DNA recovered from the deceased, and that that DNA profile could be found in approximately one in 7.5 million people in the general population. 26 The appellant gave evidence, denying any involvement in the deceased's murder and denying that he had seen the deceased after about 4pm on Friday 30 July. He gave evidence also that the mattress which had been found in the bin had been moved from the second bedroom to under the house in about June 1999, and that during the week commencing 9 August 1999 he had noticed that this mattress had a stain on it, which he thought was due to something a dog had brought in under the house. It was then he said that he cut the part of the mattress with the stains and placed it in the garbage bin. 27 The appellant also gave evidence that there had been occasions when the deceased had cut himself and had bled while staying at the house. 28 The appellant agreed there had been an occasion when the deceased asked if he could keep a small dog at the appellant's house, but denied making any sexual suggestion to the deceased. 29 In relation to cleaning the house, the appellant said he had been thinking about doing it for a while. He said he was delayed in doing it because he had been doing work for his brother, and he also had to obtain a loan so he could have the carpets cleaned. He stated that it was his practice from time to time to hose down his driveway and front path to get rid of dirt and dog hair. 30 Focusing now on the issue on this appeal, at the trial the appellant's Counsel took objection to Mrs Gregory's evidence about the deceased's statement concerning a sexual suggestion said to have been made by the appellant. 31 The trial judge found that this evidence was not excluded by the hearsay rule by reason of s.65 of the Evidence Act, which is as follows: 65(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. The trial judge found that this evidence fell within paragraph (b) and also within paragraph (c) of s.65(2). No challenge is made to that finding. 32 Dealing with the substantial questions of whether the evidence was relevant and whether the risk of prejudice outweighed its probative value, the trial judge said this: 29. I am of the view that the deceased's representations concerning the sexual advance said to have been made (sic) him by the accused may be admitted as first hand hearsay pursuant to s.65 of the Act. It remains to consider whether this material meets the test of relevance. As I have noted, the Crown presses it as evidence of the relationship between the deceased and the accused. In R v Frawley (1993) 69 A Crim R 208 Gleeson CJ at 220 observed: "One of the difficulties affecting consideration of relationship evidence is that the concept of relationship is vague. In a particular case, such as the present, it may be necessary to identify with more precision what is in question."

In the present case the Crown submits that the relationship between the accused and the deceased was one characterised by sexual attraction or interest on the part of the accused towards the deceased. The Crown submits that the mutilation of the body is consistent with the deceased's assailant being motivated at least in part by sexual considerations.

In Serratore Dunford J noted: "It is now well established that in murder trials, evidence of the relationship between the parties is relevant and admissible: Wilson v The Queen (1970) 123 CLR 334; R v Frawley (1993) 69 A Crim R 208;.R v Hissey (1973) 6 SASR 280; R v Ballantine (CCA 27 June 1978, unreported); R v Hurst (CCA 2 November 1983 unreported).

To reject the evidence would require the jury to examine the matter as if it happened in a vacuum: Wilson (at 334), per Menzies J. (at 106)."

I consider that the evidence of the accused's sexual interest in the deceased is relevant for the reasons advanced by the Crown and that in the context of this case to exclude it would be to require the jury to examine the matter as if it happened in a vacuum.

I have considered whether the probative value of this evidence is outweighed by the danger of unfair prejudice to the accused. I am not of the view that it is. I will direct the jury as to the limited basis upon which this evidence is led and explain that it is not led as evidence of tendency. 33 In the summing up to the jury, the trial judge dealt with this matter in the following way: Now there are some important directions I wish to give you concerning the evidence given by Mrs Gregory as to a statement made to her by the deceased. Namely that the accused had said to him he would let him keep the puppy if he, that is Luke, would let the accused suck his doodle. That evidence was admitted for a limited purpose, and it is most important that you bear that limitation in mind. The evidence was not lead (sic) to establish that the accused is a person with a tendency or a disposition to make sexual advances to adolescent youths. It would be improper for you to reason that the accused had such a tendency or disposition and to draw any inference adverse to him from that. The sole and limited basis upon which that evidence was lead (sic) is as tot eh nature of the relationship between the accused and the deceased. In that, if you accept it, the evidence suggests that the relationship was characterized by a sexual interest in Luke on the part of the accused.

The Crown points to the mutilation of the body and invites you to consider that either at the time of the killing or in the immediate aftermath the killer exhibited some form of what I will describe as sexual preoccupation with the deceased. 34 The trial judge went on then to give a strong direction on the potential unreliability of hearsay evidence. 35 The summing up subsequently recounted the Crown's submissions relevant to this piece of evidence as follows: Next I turn to the evidence concerning the accused's response to the theft of his battery and going to the question of the nature of his relationship with Luke. The Crown invites you to consider that the accused was angry with Luke and resentful over the rejection of the earlier sexual proposition, and that the killing occurred in this context. But I emphasise, it is not the Crown's case that there was a motive for killing Luke in the sense that the accused planned to kill Luke because of any sexual interest in the boy, or because he was angry with him over the battery, rather in the way the Crown puts its case it says these background features provide a context for an event which may well have been impulsive, and the Crown does not suggest was in any sense planned. 36 The trial judge then went on to summarise relevant evidence and to remind the jury of the warning she had given previously. 37 The appellant's Counsel has provided comprehensive written submissions, the most relevant parts of which are as follows: 4. The evidence was the sole suggestion of any sexual attraction in the victim by the appellant.

The evidence was said to be relevant as the penis of the victim had severed. There was no expert evidence that the mutilation resulted from or could have resulted from a rejected sexual advance. If accepted, the doodle evidence, was only a request for consensual sexual activity. There was no suggestion of sexual violence.

The relationship evidence could not assist the jury in determining a fact in issue. It could not be said that a man who has an interest in sucking the penis of a fourteen year old boy, notwithstanding the rejection, would also sever the penis of the same boy. There was no suggestion of any anger or violence from the appellant to the victim as a result of the rejection in the weeks before the death.

It may be more likely that a person who is sexually attracted to a young male may have less reason to sever the penis. There are many men in Sydney who pay for sexual gratification from boy prostitutes who would never inflict any such mutilation on the young person. Most paedophiles feel that they do no wrong when engaging in sexual activity with young children because they feel it is an act of love. It would seem that the assumed link between attraction, rejection and mutilation may not exist. The evidence may not therefore have even been relevant.

In Gipp v R (1998) 194 CLR 106 the relationship evidence was admitted for the limited purpose of making the circumstances of the specified offences more intelligible. McHugh and Hayne JJ, referring to earlier High Court decisions said at 132.2: 'It was admissible because it was evidence "as to acts so closely and inextricably mixed up with the history of the guilty act itself as to form part of one chain of relevant circumstances."'

It cannot be said that the relationship evidence in this case had that same character.

Her Honour stated that to exclude the evidence would have required the jury to consider the evidence in a vacuum. That is not so. The vacuum exists, for example, when one considers why a particular victim offered no resistance to a sexual advance. The relationship history would explain that conduct. It would be inextricably linked to the crime. There was no such vacuum here. In any case, no vacuum should be or could be cured by speculation.

There could be varied reasons why mutilation occurs. On the Crown case the appellant was very angry with the victim for stealing his battery and killed him after a confrontation about it. It was put to the appellant that he killed the victim that night. If someone is angry enough with someone to kill them he is angry enough with them to mutilate the genitalia.

An alternative reason for the severing of the penis may have been the one referred to by her Honour during the sentencing. Her Honour at T8.46 says, in a discussion about the mutilation, that it evidences, amongst other things, 'a contempt for the person killed'. This is a logical explanation. The relationship evidence is not relevant to such contempt. There was no evidence from which an inference could be drawn that the rejection lead (sic) to a feeling of contempt towards the victim by the appellant. 12. Given the respective ages of the appellant and the victim, the evidence cast the appellant as a paedophile. It was not lead (sic )as tendency evidence however it is not possible to suggest that the appellant could have had a one-off sexual attraction to a young male. If it was one-off then there would be no relevance to the crime.

The unfair prejudice is clear and the danger of unfair prejudice extreme. At the very least the evidence ought to have been excluded under s 137 of the Evidence Act. It could not be said that the probative value outweighed the danger of unfair prejudice. The danger that a jury may be willing to convict a paedophile is significant. It could not be said that the speculative link between the sexual offer and the mutilation was significantly probative.

The hearsay and the injuries were not linked so as to raise the probative value of the evidence. For example, if the relationship evidence was a request to bite the breast and that was how a body was found then the link would be clear such as to make the hearsay evidence probative. However that does not appear here. It was assumed that simply because an unsuccessful sexual advance is made and there was mutilation of the genital area then the conclusion could be that the injuries resulted from anger from a sexual rejection.

In discussion before the addresses, her Honour stated at 1096.30 that: 'I do not consider that any evidence as to the post-mortem findings is capable of establishing sexual interference with the deceased either before or after death'.

Her Honour continues by saying that the evidence was admitted as it was relevant to the relationship it being the Crown submission that it was open to the jury to infer that there was a sexual interest. However a sexual interest is irrelevant if it is not linked to the murder. Without sexual interference during or after the killing the sexual interest becomes irrelevant. An attempt to limit the use of evidence at this stage was rejected.

Despite this statement by her Honour the summing up at 12.5 stated: 'The Crown points to the mutilation of the body and invites you to consider that either at the time of the killing or in the immediate aftermath the killer exhibited some form of what I will describe as sexual preoccupation with the deceased.'

This should not have been left to the jury because it was not open. It was not open because the necessary link between the alleged sexual offer and the mutilation did not exist. As her Honour had said earlier, there was no sexual interference. It would be highly speculative to suggest that there was no sexual interference but that there was sexual preoccupation to the extent of mutilation. The suggestion is that the strong appellant, who had a sexual interest in the victim, would not sexually assault the frail victim, but would sever his penis.

A further problem is that the relationship evidence is not admitted by the appellant.

A further problem is that the evidence is hearsay. It does not allow the testing of the evidence. More importantly it does not have any regard to the accuracy of the alleged representation made by the appellant. The test in s 65 of the Evidence Act does not test the reliability of the representation from the appellant to the victim but rather the reliability of the representation from the victim to his mother. The provision does not test whether or not the victim may have been mistaken.

Another significant problem is the way in which the Crown conducted its case. It did not allege that the motivation for the killing was sexual rejection. The alleged doodle comment came weeks before the killing. The Crown stated that the killing may have been precipitated because the victim stole the appellant's car battery. In cross-examination it was put directly to the appellant that he stabbed the victim on the night of a confrontation over the battery (T1039). The theft, (where the appellant told the police that the victim stole the battery before the murder), was just before the killing. In fact her Honour, in the Remarks on Sentence at paragraph 22 on page 7 states that she could not conclude beyond reasonable doubt that the killing was the result of any sexual motive. Her Honour stated that the precipitating event may have been a confrontation over the battery. To suggest that the battery precipitated the killing but the anger caused the mutilation in circumstances of no sexual interference, is too speculative to allow the reception of evidence which says that the appellant is a paedophile.

This possible alternative demonstrates the danger of allowing the highly prejudicial evidence. If the jury is addressed on the basis that the battery may have motivated the killing then the danger of the misuse of the relationship evidence by the jury is greatly amplified. Her Honour failed to consider the theft of the battery in determining to admit the evidence.

The paedophilia evidence precluded the appellant from having a fair trial. 38 In oral submissions, Mr Thangeraj for the appellant submitted that it was not open for the jury to infer from the mutilation of the deceased's body that his killer had some sexual preoccupation. He submitted that such a conclusion was too speculative. In any event, he submitted even that inference, if it was available, would provide no link to the appellant, because among other things such sexual interest or attraction as may have been suggested by the challenged evidence points against such conduct as post mortem mutilation, and points against the appellant having such contempt for the deceased as was suggested by the mutilation. Furthermore, Mr Thangeraj submitted, the mere circumstance of sexual attraction was not probative of anything. This was made clear, if one considered what would be the situation in the case of an indication of sexual attraction between an adult female and an adult male. In such case, the irrelevance was obvious, and so also it was in this case. 39 In relation to a suggestion that this evidence also had relevance as explaining and putting in context the evidence concerning the keeping of a knife under the deceased's pillow, Mr Thangeraj submitted that that point had not been taken or relied on in any way below. He submitted that no such explanation was necessary in relation to the knife evidence, it had no relevance to it, and it could at best lead to speculation. 40 Mr Thangeraj submitted that the material admitted had the risk of extreme prejudice to the appellant. It suggested that the appellant was a paedophile, which could in turn lead the jury to reason either that he must have committed the offence because he was a paedophile, or alternatively that he should be locked up in any event because he was a paedophile. 41 Insofar as it was put by the Crown that this was only a small part of the Crown case, that supported the argument about prejudice; the less important the evidence was, the more readily it could be concluded that its probative value was outweighed by the risk of prejudice. 42 In my opinion, the conversation was evidence concerning the relationship between the appellant and the deceased, which was relevant to the question whether or not the appellant murdered the deceased. 43 As submitted by the Crown and decided by the primary judge, the after death mutilation of the deceased's body does make relevant evidence that the appellant had expressed sexual interest in the deceased, which was apparently unwelcome to the deceased. The relevance does not depend on any view that a person with a sexual interest of this kind would be likely to mutilate a body: rather it is that such mutilation might to some limited extent be explicable in terms of some kind of sexual preoccupation, which could derive from sexual interest in the deceased; whereas if the killer had no sexual preoccupation or interest whatsoever in the deceased, the mutilation would seem wholly inexplicable. I think the mutilation does support an inference of some kind of sexual preoccupation, and while mere sexual interest of itself falls far short of such preoccupation, the existence of sexual interest has a bearing on the probability of the existence of a sexual preoccupation. 44 For those reasons, it seems to me that the evidence did have some relevance to the overall probability of the appellant being responsible for the death of the deceased. 45 I would add that in my opinion this evidence does had relevance in another way to the question of the appellant's guilt. Evidence was admitted as noted before, from two sources of the deceased talking about sleeping with a knife under his mattress or pillow when staying at the appellant's home. No appeal is brought from that decision, and in my opinion, in circumstances where the deceased was killed with a knife, that was relevant material, even though the murder weapon was not found, and there was a suggestion from the Crown that the murder weapon may have been a knife that was missing from a set owned by the appellant. 46 The evidence challenged on appeal contributed to an explanation of why the deceased may have slept with a knife. This explanation had some relevance in turn to the probability of the appellant actually doing what he said, that is sleeping with a knife, and some relevance in turn to the probability of an occasion arising of a disagreement between the deceased and the appellant where a knife might become involved. The challenged evidence was not relied on in this way below, or put in this way to the jury, but this relevance has some bearing in the event that it is necessary to consider whether the proviso applies. 47 Turning to the question of whether the probative value of the evidence was outweighed by the risk of unfair prejudice, I accept the submission that there was some danger of unfair prejudice to the appellant, in the way suggested by the appellant's counsel. The question before the trial judge was whether, in terms of s.137 of the Evidence Act, the probative value of the evidence was outweighed by the danger of unfair prejudice. 48 This question involves the weighing by a judge of incommensurables, of a kind which, in my opinion, should be overturned by an appellate court only if the appellate court is satisfied that the trial judge was wrong, either on the basis of the reasons given or on the basis of the unreasonableness of the result. 49 In my opinion, courts should not underestimate juries, and I note that the jury in this case was given appropriate directions not to use the material in a way which would unfairly prejudice the appellant. 50 Having regard to these considerations, I am not satisfied that the trial judge was wrong in the decision that she made that the probative value of the evidence was not outweighed by the danger of unfair prejudice. 51 I am also of the view that this is a case where, if necessary, the proviso should be applied. The Crown case was a very strong case. I have already expressed the view that the challenged evidence was admissible on a basis that was not dealt with below. The circumstantial evidence against the appellant was very strong. The DNA evidence linking blood from the deceased to the carpet in the bedroom where the deceased was accustomed to sleep, to a mattress, and to the boot of the appellant's car, was compelling. The appellant's explanation of the disposal of the mattress was extremely unconvincing. 52 Having regard to all these considerations, had the question arisen, I would have been satisfied that the appellant had not been deprived of a fair trial or of a reasonable possibility of acquittal by the trial judge's failure to exclude the evidence. 53 For those reasons, in my opinion this appeal should be dismissed. I would also formally dismiss the application for leave to appeal from sentence. 54 LEVINE J: I agree. 55 HOWIE J: I also agree. 56 HODGSON JA: Those are the orders of the Court

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