Raju v R

PARTIES: Kaniappa Raju (Appellant) The Crown

COUNSEL: J Manuell SC (Appellant) D Arnott SC/N Noman (Crown)

SOLICITORS: Legal Aid Commission of NSW (Appellant) Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT DATE OF DECISION: 14 December 2007

IN THE COURT OF CRIMINAL APPEAL 2005/2365

McCLELLAN CJ at CL HOWIE J JOHNSON J

THURSDAY 4 MARCH 2010 RAJU, Kaniappa v R Judgment 1 McCLELLAN CJ at CL: The appellant, Kaniappa Raju, was convicted following a trial with a jury of the murder of his wife, Aruna Verma. He appeals against that conviction. 2 The appellant was sentenced to 21 years imprisonment with a non-parole period of 16 years. He has abandoned an application for leave to appeal against his sentence. He appeals his conviction on four grounds. He firstly submitted that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence. The second ground is concerned with the failure of the Crown to call a witness, Anthony Whittal. The third ground is concerned with the fact that the jury were not informed of the appellant's earlier acquittal of a charge of attempted murder. In the fourth ground he argued that the appellant suffered a miscarriage of justice because of the way in which the jury was "effectively invited to speculate on the significance" of an exhibit in the trial.

History of proceedings 3 The appellant has been in custody in relation to this matter since 17 November 2004 when he was arrested in the Solomon Islands. He was extradited to Australia on 8 February 2005. Upon arrival in Sydney he was charged with the attempted murder and murder of the deceased. The attempted murder was alleged to have been committed on or about 5 May 2002 and the murder on 2 June 2002. 4 There have been three trials. The appellant's first trial commenced on 6 October 2006 but was aborted on 19 October 2006 due to the unavailability of witnesses from the Solomon Islands. The second trial commenced on 4 July 2007. The jury returned a verdict of not guilty to the charge of attempted murder but was unable to reach a verdict on the charge of murder. The third trial on the charge of murder commenced on 24 October 2007. The jury returned a guilty verdict on that occasion. The appellant was sentenced on 14 December 2007.

Factual matters 5 The appellant was born on 12 July 1961. The deceased, Aruna Verma, was born in Fiji on 5 November 1966. She was last seen on 2 June 2002. She has not been heard of since and no body has been found. The appellant and the deceased had been in a de facto relationship since 1993 and lived in premises at 40 Kembla Street, Port Kembla from August 2000. The appellant and the deceased had four children between them, who were aged between 4 and 8 years at the time of the deceased's disappearance. 6 The deceased first came to Australia in 1988 on a Student Visa, which she overstayed. She left the country in 1991 but returned with her children on 4 December 1999. Her International Movement Records do not indicate that she left Australia after that date. The visa on which she entered Australia in December 1999 was also overstayed; she was an unlawful non-citizen between 5 January 2000 and 12 June 2001 and had been refused a Protection Visa, which she claimed on the basis of political tensions in Fiji. She was however granted a Bridging Visa, pending the determination of the appeal against the refusal to issue her with a Protection Visa, which included a condition that she could not work. 7 The appellant also maintained a relationship with Mary Vousa who lived in Brisbane and with whom he had an infant son who was born in 2000. The appellant lived in Brisbane with Ms Vousa in early 2002 before returning to Port Kembla in approximately April 2002. He continued to visit Ms Vousa in Brisbane on occasions. 8 Evidence was adduced by the appellant suggesting that the deceased had also formed a relationship with another person, Chinna Goundar, who was a cousin of the appellant. It was the Crown case that the appellant was fearful that the deceased may leave him and take the children to live with Chinna Goundar. 9 Mr Goundar was eventually removed from Australia following an anonymous report to the authorities. The report was actually made by the appellant and alleged that Goundar had breached the conditions of his Visa which prohibited him from working. Goundar was sent to Villawood detention centre and was then deported to the Solomon Islands.

Employment 10 Although a condition of her Bridging Visa was that the deceased could not work, she obtained paid employment at a café owned by Rebecca Shey-Ly and her husband, Rohan Hankinson. Ms Shey-Ly gave evidence that the deceased worked approximately five to seven hours each day, Monday to Friday, although the times she worked varied from week to week. 11 The deceased took some time off work in late April 2002, having told Ms Shey-Ly that she intended to travel to Brisbane with the appellant. The deceased returned to work about 2 May and worked for a couple of days. The days immediately following 2 May 2002 were the last time that the deceased worked. 12 An anonymous claim which, as it happens, was also made by the appellant was made to the Immigration Department on 1 May 2002 alleging that the deceased had been working in breach of her Visa. Representatives of the Department of Immigration visited Ms Shey-Ly on 29 May 2002 to investigate the allegation. The deceased's employer had no idea that she had been working illegally. Evidence was given at the trial which unsurprisingly confirmed that the deceased was fearful of being discovered, taken into detention, possibly deported and separated from her children. 13 Ms Shey-Ly, who had observed the deceased together with her children, gave evidence that the deceased was a loving mother, who had a warm and loving relationship with her children. 14 The deceased disappeared on Sunday 2 June 2002. The last person to speak with her was her sister Anjini Rhodes. They spoke on the telephone in a call which ended at 9.19 that morning. The sisters were close. In that telephone call the deceased told Ms Rhodes that the appellant had gone to Sunday school with the children. She also said that the deceased had accessed her mobile telephone and redialled the numbers in it and she believed he would have concluded that she had been asking for assistance from the Red Cross. She told her sister that the appellant had said to her "you will take my kids to the Red Cross over my dead body." 15 As it happens on the morning of 2 June the deceased's mobile telephone had been used to telephone the Red Cross at 8.12 am; at 8.13 am to telephone the Refugee Caseworker Service in Surry Hills and at 8.14 am to the mobile telephone of Gustavo Sierra, the man with whom the appellant was working at the time. The Crown alleged, and this would seem probable, that it was the appellant who had accessed the deceased's telephone and made these calls. 16 In their conversation that morning the deceased and her sister made an arrangement that the following morning they would meet at Central Railway Station around 11.30 am. The deceased intended to leave the appellant and take her children. She indicated that she would go that morning to the Wollongong Women's Centre to collect the children's passports which had been placed there for safekeeping and so that the appellant would not know where they were. 17 The deceased did not meet Ms Rhodes on the Monday morning and Ms Rhodes has not heard from her since the conversation on Sunday morning. Given the relationship between them this is extraordinary. It is compelling evidence that Ms Verma is dead. 18 The evidence confirmed that before 2 June Ms Rhodes was a regular visitor at her sister's house and they spoke regularly on the telephone, as often as twice a day. They both worked in the city and would meet at Central Station while waiting for their respective trains. They would also speak on the telephone after they boarded their trains. 19 Ms Rhodes gave evidence of the friction she observed between the appellant and the deceased. She said that in early May the appellant took the children to Queensland. She spoke to the appellant a day or two later and he told her "She's having an affair and when she confesses then I'll bring the kids back." Ms Rhodes went to stay with the deceased at Port Kembla and one morning the appellant showed up at around 6 am with all but one of the children. The appellant and the deceased argued and Ms Rhodes decided to take the children and the deceased back to her home. She dropped the deceased at Wollongong railway station, her car could not accommodate all of them, and the deceased travelled by train to Ms Rhodes home. 20 The deceased and her children returned to Wollongong on the following Sunday - it was Mother's Day - the appellant having come to pick them up. The deceased and Ms Rhodes continued to speak everyday, probably a few times each day. The deceased told her that she was scared and could not sleep. She said in evidence that her sister sounded very scared. Ms Rhodes helped the deceased by providing her with small sums of money. 21 On 31 May Ms Rhodes rang the deceased who told her that she had telephoned the Red Cross in Sydney who had given her an appointment for the following Monday when she was also to take the children. She discussed whether Ms Rhodes should come to Sydney on the Sunday to help with the children. This did not happen because the railway was closed for maintenance but also because the deceased did not want the appellant to find out that Ms Rhodes was involved in their problems. 22 It was the Crown case that this evidence makes plain that the relationship between the deceased and the appellant was at an end and that the deceased had determined to leave and take the children. It was submitted that by reason of the knowledge he gained from the deceased's mobile telephone on the Sunday the appellant deduced her intention to leave and rather than lose his children decided to kill Ms Verma. 23 A neighbour, Mr Peter Petrevski, lived three houses away. He gave evidence which was consistent with there being an argument between the appellant and the deceased at about the time the deceased's mobile telephone was used to contact the Red Cross. He said he heard yelling "Just ordinary screaming and yelling, like when someone's upset, you know, like, you're stupid or things like that." 24 Ms Georgina Assuamae was a nanny who had been with the family for a considerable time, having originally come to Australia with them from the Solomon Islands. She remembers that before she left the house on the Sunday morning she heard the deceased yelling, but does not remember whether her anger was directed at the children or the appellant. 25 The appellant left the home at around 8.30 am and, apart from the youngest, Michelle, took the children and dropped them off at the Salvation Army Sunday school located in Burelli Street at around 9 am. Shortly after the appellant left the home Ms Assuamae took Michelle to the local church. She did not return home until shortly after 11 am by which time the appellant had collected the other children from Sunday school and returned home. 26 The Crown case was that having dropped the children at Sunday school the appellant returned home and killed his wife. His subsequent movements would allow for him to have secreted her body until he could dispose of it later that morning. 27 The telephone records confirm that the deceased must have been alive at 9.19 am when she spoke to her sister. Ms Jacobs, the Sunday school teacher confirmed that the appellant picked up the children at "around 10 am." The time to travel from the Sunday school to the appellant's home and back to the Sunday school was about 20 minutes. Accordingly, the Crown case was that at some time between 9.20 and 9.45 am the appellant returned to the house and killed the deceased. 28 Although the Crown case was not dependent on it the evidence at the trial would allow for the appellant to have initially secreted the deceased's body in a sulo bin, which was later disposed of with the body. Three bins had been issued by the council to the appellant's premises but only two could be located. The appellant owned a large vehicle which was capable of carrying the bin if this in fact occurred. Of course the bin may also have been misplaced in some manner unrelated to the events of the Sunday morning. 29 The appellant gave varying explanations of his movements after leaving his children at Sunday school. It varied from waiting outside the Sunday school building listening to some CDs, to having driven to a spot near the lighthouse where he listened to some CDs. 30 When he arrived home with the older children, Ms Assuamae having not returned, the oldest daughter, Patricia, said that the appellant left her in charge of the other children saying that he was going for a drive to look for their mother. When Ms Assuamae came home the appellant had returned but left again saying that he was going to look for the deceased. He implied that he was concerned that she may be contemplating suicide. Ms Assuamae said that he left and came back after about 15 minutes saying that he could not find the deceased. When the appellant returned he told them all to pack up their clothes for Queensland. The appellant made a call from a payphone to Ms Vousa's landline at 12.51 pm which is likely to have been during the second time that he left the premises. 31 It is significant that although the appellant claimed to be concerned about the deceased and to have gone looking for her he did not do what most people would and ring her mobile telephone. This omission is entirely inconsistent with any genuine attempt to locate her. 32 At about 3 pm on the Sunday afternoon the appellant left his home and drove with the children and Ms Assuamae to Ms Vousa's home in Brisbane where they arrived in the early hours of 3 June. He thereafter arranged for Ms Vousa to be able to withdraw money from his bank account. He booked himself a one way ticket to Honiara in the Solomon Islands and left the next day. He left his children with Ms Vousa. He did not return to Australia until extradited on 8 February 2005. The appellant was apparently told by Ms Vousa on 7 June 2002 that the police were looking for him.

The alleged confession 33 Evidence was given by Mr Gerby Kalavasiri in which he said that the appellant admitted that he had murdered Ms Verma. In June and July 2002 Mr Kalavasiri was the book keeper for a company run by Mr Roland Timou which ran "Hot Bread Kitchens." Mr Kalavasiri said that on occasions the appellant would call by allegedly to see Mr Timou and on occasion would use Mr Kalavasiri's office telephone to ring his children. After one call, which was apparently unsuccessful, the appellant told Mr Kalavasiri that the children's aunt must have disconnected the telephone. 34 Mr Kalavasiri gave the following evidence of a discussion with the appellant after asking him what had happened. He said that the appellant said: "… his wife had an affair with his nephew and that, um, he, he was angry with that and he wanted to, to kill his nephew but he escaped and - Q: What else did he say? A: Yeah, Then he said, um, that he, that he took his children to the church, um, then he left them there. Then he returned within 30 minutes. Um, he said: 'Aruna is missing in action' …" 35 Then he went on to say: "A: Yes, I asked him, because I don't really understand, what he meant by 'missing in action'. So I asked him: 'What, what do you mean you killed her?' Then he said, yes - Q: Did he say why? A: Yeah, That's when he told me that because she had an affair with his nephew." 36 Mr Kalavasiri said that the appellant told him "that the body was taken care of by his friends and that the body was burning in, somewhere in the mountain near Wollongong", and that "during summer it will smell but if it's winter it, yeah, but it won't smell during winter." 37 Considerable doubt was cast on the reliability of Mr Kalavasiri's evidence at the trial. Mr Kalavasiri was interviewed by the police in the Solomon Islands on 13 September 2006 when he made no mention of a conversation with the appellant which contained a confession. It was not until he spoke with his then employer, Mr Christopher Kwan, that he disclosed the appellant's alleged confession. Mr Kwan said that he should tell the police. Mr Kwan later contacted an officer attached to the Australian High Commission in Honiara and took Mr Kalavasiri to the Commission building. 38 When he was cross examined Mr Kwan agreed that Mr Kalavasiri had told him that the body was buried in the mountains near Wollongong "where the snow would cover the body in winter." Mr Kwan initially said that he knew Mr Timou only as an acquaintance but ultimately admitted that they had had a business relationship. Although Mr Kwan was living in the Solomon Islands in 2004, at which time he knew Mr Timou, he said that he did not know that Mr Timou had been charged with the attempted murder of the appellant during that year. Mr Kwan denied the suggestion that Mr Timou had offered to assist him if he gave evidence against the appellant.

Possible evidence of Mr Whittal 39 At the first trial the Crown Prosecutor's opening address included reference to another admission allegedly made by the appellant that he had killed Ms Verma. The admission was said to have been made to Mr Anthony Whittal. Mr Whittal was called on a "Basha" inquiry following which defence counsel sought to persuade the trial judge to exclude part of his evidence. The trial judge was then told that the prosecution was having difficulty in having some police officers from the Solomon Islands give evidence at the trial. There were indications that their evidence may have impacted adversely on the evidence to be given by Mr Whittal. Because of their unavailability the jury were discharged when the Crown made plain that it intended to call Mr Whittal. 40 Mr Whittal was called at the second trial as were the Solomon Island witnesses. The jury could not agree on a verdict and were discharged. Mr Whittal's evidence was that at a time when the appellant was living at his premises he was woken by the sound of "violent knocking and yelling and screaming" coming from the appellant's bedroom. He said that the appellant then said to him "you know I killed her don't you? … I killed her, Anna Verma." Mr Whittal said that the appellant told him that he had strangled the deceased, placed the body in a bin and thrown the bin off a cliff. 41 When cross-examined Mr Whittal agreed that he had had a falling out with the appellant in 2002-2003 over their business arrangements. He also agreed that in his first two statements to the police he did not mention that the appellant had told him that he put the deceased's body in a bin. Mr Whittal denied making up the appellant's confession in order to speed up the appellant's extradition to Australia but did agree that he wanted to do whatever he could to get the appellant out of the Solomon Islands. Mr Whittal also said that he knew that Mr Timou was awaiting trial in the Solomon Islands on a charge of conspiracy to murder the appellant. There were also suggestions, which Mr Whittal denied, that he may have concocted his evidence to assist others who were in conflict with the appellant. 42 Before the trial at which the appellant was convicted the prosecution had decided not to call Mr Whittal to give evidence. The trial commenced on 24 October 2007 but it is apparent that the defence knew by 17 October that Mr Whittal was not to be called. Defence counsel did not request that Mr Whittal be called. This is perhaps not surprising. At worst Mr Whittal's evidence was damaging to the defence case. At best the credibility of Mr Whittal was low and his evidence unreliable making it of no evidentiary value to either the prosecution or the defence. 43 I shall refer again to Mr Whittal's evidence when I consider the second ground of appeal.

Events preceding 2 June 2002 44 For a significant period during the first half of 2002 the appellant lived with Ms Vousa in Brisbane. The precise times when he was in Brisbane are not entirely clear and are not of particular significance. There was no doubt that during this period the relationship between the appellant and the deceased was under great strain. 45 The evidence established that the appellant left Australia on 30 April 2002 to travel to Fiji. He returned to Australia on 4 May 2002 at around 11 am. He telephoned the deceased on her mobile telephone. She said that she was out shopping. He asked her to prepare lunch but when he arrived at their home the deceased was not there. The appellant gave evidence that he then drove to Villawood because he said he needed to pass some information on to Mr Goundar (who by this time had been detained) which he had from his family in Fiji. When he arrived at Villawood he saw the deceased coming out. He said she told him that she had been visiting Mr Goundar but that Mr Goundar would not want to see him. She said that Mr Goundar knew that the appellant had informed on him to the Department of Immigration. As the appellant was driving them home they argued and the appellant allegedly struck the deceased in the face. 46 Some time after arriving home on 4 May 2002, the appellant and the deceased went to a service at the St Patrick's Catholic church which was opposite their home. While they were in the church at about 6.30 pm the deceased's mobile phone rang. The deceased left the church, followed by the appellant. The appellant was seen to come back inside the church about a minute later and place some money in the collection plate. He then went outside again and shortly afterwards a female voice was heard to cry out "call the police." The witnesses David Gilmour, Leonard Diggins, Dallas Lewis and Neil Fenwick were present at the church service. They left the church to investigate the cry. Dallas Lewis believed he was the first of the witnesses to leave the church. He said he saw an Indian man holding an Indian woman in a "bear hug" near the car park of the church. After Lewis called out "not her mate", the man straightened up and walked away. Each of the witnesses observed the deceased to be distressed. The police were called. 47 At 7.55 pm on 4 May 2002 Sergeant Kierse and Senior Constable Leslie attended Kembla Street and obtained a statement from the deceased. The appellant was not at home when the police were there, although the children were. Sergeant Kierse recorded a statement from the deceased and said she had noticeable bruising under her right eye. The police left the premises and drove around the local area looking for the appellant or his vehicle but did not see him. The police then returned to Port Kembla Police Station and at some stage that night obtained an interim Apprehended Violence Order by telephone. At 11.24 pm a message was received via police radio that the appellant had returned to Kembla Street. A short time later, the deceased entered the Port Kembla Police Station saying that the appellant was at their home with the children, and that she was scared. The police drove the deceased back to Kembla Street but when they arrived the house was locked and there was no one at home. Despite the police offering to find alternative accommodation for the deceased that night she "insisted" on staying in the house. The deceased then telephoned the police at 12.17 am and gave them the appellant's mobile telephone number. 48 Sergeant Kierse notified Queensland police to look for the appellant's vehicle with a request to stop the vehicle if it was found and to check on the condition of the children. At a later time, Sergeant Kierse was informed that the vehicle had been stopped in Queensland and the children were "okay." When he was stopped the appellant gave Ms Vousa's address as his destination. 49 Ms Rhodes said she went to Kembla Street on 5 May 2002 and stayed there with the deceased until the appellant returned from Queensland with the children on 7 May 2002. 50 Evidence was given at the second trial, but not in the third trial, in relation to a further allegation made by the deceased on 5 May 2002. This allegation subsequently founded the attempted murder charge of which the appellant was acquitted on 15 August 2007. At about 8.15 am on 5 May 2002 the deceased attended Port Kembla Police Station. She spoke to Senior Constable Kniepp and made a statement to him about an incident which she said had taken place in the early hours of that morning. She said that shortly after Sergeant Kierse left her at Kembla Street she went to the toilet. As she was doing this she saw the appellant inside the house. She said he grabbed her by her hair and verbally abused her because she had gone to the police. She said he then dragged her by her hair to their bedroom, sat her down on the bed, placed a hand around her neck and squeezed her throat. While he was doing this, she said he said "I'm going to kill you and everything will be finished." She said she found it really hard to breathe. She said he then pinned her head down underneath his knee and repeated the words "I'm going to kill you and everything will be finished." She said she could not remember what happened next but thought the appellant may have been looking through the house. She said she went to sleep and woke on the bedroom floor about 35-45 minutes later and thought he was gone. She said she lay there for a further 45 minutes, not wanting to get up in case the appellant was still there and saw her. She said she then packed some things and rang a friend before going to his house at about 2.15-2.30 am and staying the night there. The deceased said she telephoned the appellant the following morning at about 8 am and said it sounded like he was driving with the children in the car. 51 Senior Constable Kniepp gave evidence at the second trial that he observed injuries to the deceased's neck area "which was scratched and red marked." Snr Const Kniepp took a photograph of those injuries. 52 In her evidence at the second trial in relation to this incident Ms Rhodes said the deceased telephoned her to tell her that the appellant had strangled her and rendered her unconscious. Ms Rhodes said it was late at night when the deceased called. This evidence is inconsistent with exhibit J. The only phone calls recorded between the deceased and Ms Rhodes at this time were calls made from Ms Rhodes' mobile telephone to the deceased's mobile telephone at 02.12.43 (no answer) and at 02.23.43 to the Kembla Street landline (27.7 second call). The deceased did not make any telephone calls to Ms Rhodes at any time between 12.15 am (before the deceased telephoned the police with the appellant's mobile telephone number) and 10.33.41 on 5 May 2002. 53 I shall return to these events when I discuss the third ground of appeal. 54 Ms Enirqueta Waddell gave evidence that she was employed at the Wollongong Women's Centre as at 6 May 2002. She said the deceased and Ms Rhodes attended the centre on that day. She spoke to the deceased alone in her office. The deceased told Ms Waddell that her relationship with her de facto husband was over and that she had concerns about the children being taken by him. Ms Waddell gave the deceased some advice about the possibility of taking proceedings in the Family Court and organised an appointment for the deceased to see a local solicitor. Ms Waddell later spoke to the deceased over the phone. The deceased told Ms Waddelll that she had not seen the local solicitor because "she had a solicitor already in Sydney taking care of her." 55 Mr Tyrone Phillips was a solicitor who worked for a solicitors' firm in Wollongong. He gave evidence that the deceased and her sister attended his office on 6 May 2002, the deceased having earlier made an appointment to see him. The deceased told him that "her partner had attended her residence at Port Kembla previously" and that she wanted to commence Family Law proceedings. Mr Phillips explained the process of applying for legal aid and asked the deceased to provide social security documents to satisfy the means test "but she didn't have that document with her at the time." Mr Phillips explained to her that if she did not qualify for legal aid then she would need to fund the application herself. The deceased said she would return the following day and that if she did not qualify for legal aid she would instruct him privately. She told Mr Phillips that she would give him "instructions to proceed in any event." The deceased did not return to see Mr Phillips on 7 May 2002 and he had no further contact with her. 56 There was no evidence of any other solicitor providing legal advice to the deceased in 2001-2002 in relation to Family Law proceedings, immigration or any other matters.

13 May 2002 57 On 13 May 2002 the deceased withdrew $2,000 from her bank account. 58 Also on this day the deceased and Ms Rhodes went to see Ms Demetra Stylianou, a Women's Domestic Violence officer at the Wollongong Women's Centre. The deceased did not have her children with her when she went to the Centre. Ms Stylianou said she had "a very serious conversation" with the deceased. The deceased told Ms Stylianou her husband had taken the children and that she did not know where they were although "she thought he might have gone up to Queensland." She said she had not spoken to him. She said she was afraid of him and did not want to go home. Ms Stylianou telephoned the Department of Community Services in the presence of the deceased and notified the Department that the children were missing. She also made other telephone calls "to get information about what to do about the girls." The deceased told Ms Stylianou that she was scared to go home so Ms Stylianou made telephone calls trying to find emergency accommodation for the deceased. Ms Stylianou said that later, but while the deceased was still sitting in her office, the deceased received a call on her mobile telephone. At the end of the telephone call, the deceased told Stylianou the caller was her husband and that he had telephoned to tell her he was bringing the children home that day.

14 May 2002 59 The deceased returned to see Ms Stylianou the following day, 14 May 2002, this time accompanied by Ms Rhodes and the children. They spent most of the day at the centre. The deceased gave Ms Stylianou her expired passport and the passports of her three eldest children, the youngest child only had an international travel document that was referable to the deceased's passport. The deceased told Ms Stylianou that she feared the appellant might try to take the children from Australia and she asked Ms Stylianou to keep the passports in a safe place. The deceased also told Ms Stylianou that she had organised to stay with her children at her sister's place. Following this visit, there was no evidence that Ms Stylianou (or any other person employed in the Centre) had any further contact with the deceased until 31 May 2002.

The AVO - 15 May 2002 60 On 15 May 2002 the deceased and the appellant attended Port Kembla Local Court in relation to the AVO taken out by telephone on 4-5 May 2002. Senior Constable Kevin Brown was the Domestic Violence Liaison Officer at the court. He spoke to the deceased about one week prior to 15 May in order to inform her of the court process. He saw the deceased and the appellant at the court on 15 May and spoke to them about the matter generally and the orders that were to be sought on behalf of the deceased. He spoke to the deceased and the appellant both separately and together. The deceased told Snr Const Brown she wanted the AVO dropped but Snr Const Brown informed her he was unable to do that because the police had initially taken out the order. Snr Const Brown said the deceased appeared distressed and was concerned about the children, however he agreed that the deceased at no stage during the day isolated herself from the appellant by sitting in the court's "victim's room" as she could have done. The appellant told Snr Const Brown there was no need to make orders because he intended leaving the relationship and moving to Queensland. However, the appellant apparently agreed to the AVO orders being made by consent.

Counselling 61 On 16 May 2002 the appellant attended the Salvation Army church in Wollongong and spoke to Ms Janet Wilson who was employed as the Community Program Manager. Wilson later saw the appellant and the three eldest children at a church service on 19 May 2002. She introduced the appellant to Mr Jack Holt a counsellor employed by the church. The appellant told Mr Holt he needed to see him and an appointment was organised for a counselling session the following day. During the course of this counselling session Mr Holt made some brief notes in which he recorded the appellant telling him that he had relationship difficulties, that he had once struck the deceased, that an AVO had been taken out against him and that he wanted counselling to deal with his anger. In his evidence Mr Holt accepted that it was a possibility that the appellant did not say he had struck the deceased but rather that was the AVO allegation. After this session Mr Holt made another appointment to see the appellant on 28 May 2002. 62 On 22 May 2002 the deceased went to the Salvation Army church and saw Ms Wilson. Ms Wilson said that after seeing the deceased and speaking to her, she realised the deceased was the appellant's partner. Ms Wilson referred her to Mr Holt who spoke to the deceased that day. Mr Holt said the deceased appeared to be "very scared, very afraid." After speaking to the deceased and realising that she was the appellant's partner, Mr Holt organised for the deceased to attend the appointment with the appellant on 28 May 2002. He thought he might be able to assist them with relationship counselling to sort out "the rift in communication". The deceased was agreeable to having a joint counselling session and said she would attend. Although the appellant attended that appointment the deceased did not.

The Red Cross 63 Ms Jenny Grover was employed by the Australian Red Cross in Sydney in May and June 2002 to co-ordinate the Red Cross Asylum Seekers Assistance Scheme. Ms Grover was absent from Australia at the time of the trial so her statement was read. She said she received a phone call from the deceased on either Thursday 30 or Friday 31 May 2002. She said the deceased sounded "extremely upset and worried about her situation." She said she told the deceased she would qualify for the Red Cross scheme and made an appointment for the deceased to attend the office in Sydney on Monday 3 June 2002.

Ground 1: The verdict of the jury was unreasonable and cannot be supported having regard to the evidence. 64 The principles relevant to the consideration by this Court of a submission that a jury verdict is unreasonable are well known and need not be repeated: Norris v R [2007] NSWCCA 235; Zaphir v R [2009] NSWCCA 124 at [75]; Burrell v R [2009] NSWCCA 193. The Crown case was circumstantial requiring consideration of the combination and totality of the circumstances taken together: Burrell at [53]-[64]. 65 I have considered all of the evidence at the trial and the submissions made to the jury and to this Court. To my mind the Crown case was compelling. I have no doubt that the appellant was rightly convicted. There are a number of significant matters which have brought me to this conclusion. 66 There can be no doubt that there was an unhappy relationship between the deceased and the appellant. Although the appellant was himself in a relationship with Ms Vousa he was upset by the deceased's relationship with Mr Goundar. Before 21 June there was evidence of the appellant having assaulted the deceased, both hitting her and dragging her by the arm. Their relationship was obviously dysfunctional. The evidence was that the appellant had told the deceased's employer that she was working illegally, the inference being that he believed this may be a means of having her taken into detention but leaving him with the children. 67 However, critical to their relationship and the Crown case was the fact that the evidence pointed convincingly to the appellant becoming aware that the deceased was making plans to leave him and take the children with her. The calls made on the deceased's mobile telephone on the Sunday morning, including one to the appellant's work associate, which the deceased would have had no reason to make, strongly suggest that the appellant had become aware of the deceased's intentions. 68 The animosity felt by the appellant toward the deceased was confirmed by the deceased's comment to her sister when she said that the appellant had said to her "you will take my kids to Red Cross over my dead body." 69 No one has seen or heard from the deceased since 2 June 2002. She was very close to her sister. They met regularly and talked daily on the telephone. The evidence indicated that the deceased was also close to her mother who lived in Fiji and with whom she spoke every second Thursday by telephone. 70 There was convincing evidence that the deceased was a loving mother who cared for her children. Her conversations with the Salvation Army counselling service confirmed her fears, both of the appellant and that the appellant would take her children from her. Notwithstanding the dysfunctional relationship in the household, until the weekend of 2 June the deceased had chosen not to leave her children, although she would have had every opportunity. 71 The explanation put forward by the defence for the deceased's disappearance was that she had left the appellant and the children to go and live with Mr Goundar. Apart from the fact that the evidence would not support an inference that she was likely to sever all contact with her children, Mr Goundar has had no contact with the deceased and since being deported to Fiji has been living in a village with 30 to 35 of his relatives, including the appellant's mother. 72 Prior to her disappearance the deceased had given Ms Stylianou, a Women's Domestic Violence officer in the Court Assistance Scheme, her passport and the children's passports to keep in a safe place because she feared that the appellant was going to take the girls. On Friday 31 May 2002 she rang Ms Stylianou and told her that she was coming to pick up the passports on the following Monday and intended to seek refuge from the Red Cross. She told her sister of her intentions saying to her "that there's a light at the end of the tunnel for her." 73 The deceased did not keep her appointment on the Monday, did not collect the passports and failed to meet her sister. 74 The Crown emphasised that if the deceased was still alive it was remarkable that no one has accessed any of her bank accounts. There is no account of her movements in any immigration records, she has not accessed any health service and has not sought any social security benefits. As it was shortly before her disappearance she said that she had no money and asked her sister to help her which she did by depositing $150 into her bank account. 75 The deceased's mobile telephone records record no calls since her unsuccessful attempt to telephone Mr Goundar at 9.19 am on 2 June. Although the appellant said that he had searched for the deceased on 2 June he did not call her mobile telephone and did not seek out the assistance of the police. 76 There were indications in the house that the deceased had not voluntarily left. Her jewellery and handbag were found in the home and most of her everyday clothes, underwear, cosmetics and perfume remained. Her gold coloured watch was left on the microwave. The Crown emphasised, in my view rightly, that it was most unlikely that the deceased would have left without taking her watch. 77 Some of the things the appellant said to people after the deceased disappeared were untrue and could be used by the jury to infer he knew she was dead. He told the children he had been in church while they were in Sunday school class. In her ERISP on 6 June 2002 Patricia (aged 8 years at the time) said: "He [the appellant] went to prayer in the church". "Um, he told us he was gunna go". She explained: "… he's on the third floor and we're on the second floor." In her ERISP on 7 June 2002 Nicole (aged 7 years at the time) said that when her father picked them up he said he had been "at the church". He told Mr Chafer, a friend of his, the same thing, stating: "I don't know where she is, she went while I was in church". He gave Detective Doueihi a slightly different account on 25 June stating: "I dropped the kids off at Sunday school at the Salvation Army, Wollongong, and waited outside for them until they finished." After the appellant fled to the Solomon Islands he gave a different account in telephone conversations to Meta Jackman, a team leader with the Queensland Department of Child Safety. He said that whilst the children were in Sunday school he sat in the car listening to a tape. No tapes or CDs were found in the car when later searched by police. Nor did the car have a tape player. 78 After the deceased failed to meet her sister on 3 June she spoke with the appellant by telephone asking where the deceased was. The appellant replied, with what was obviously a lie, "Aruna's got a new job and she won't tell me where it is", saying also that he would have the deceased contact her. At the time the appellant was travelling to Brisbane. He gave different accounts to the police in which he had suggested that the deceased had been suicidal, threatening to jump off a jetty or put herself under a train at Port Kembla railway station. 79 The Crown emphasised that following the deceased's disappearance the appellant fled Sydney, left his children in Brisbane and went to the Solomon Islands. This action was not one of someone worried for the deceased's welfare. As it happens he only returned to Australia when orders were obtained for his extradition. The deceased's sister obtained guardianship of the children. The appellant's sudden departure from Australia brought complete disruption to his children's lives. It also had the consequence that he failed to keep appointments he had made for the following week. If the deceased had merely left the house, and if he believed she may not be coming back he had no rational reason to completely disrupt his own life and that of his children. 80 Following the deceased's disappearance the appellant gave information to the police which was demonstrably false. I am satisfied he deliberately tried to divert attention from himself as her possible killer. By fax on 14 June 2002 sent to Port Kembla Police Station, he said "my de facto wife always leaves the house and comes home at 9 pm at night", that he believed she "will be with one of any boyfriends", that she "never care about the kids." 81 In a telephone call on 5 July 2002 the appellant told Detective Doueihi that the deceased used a Fijian passport in the name Gamgamma Yegatsami to travel from Fiji to the Solomon Islands in 1994 and hence might now be living under a false name. (He also added in this conversation that she had another boyfriend in Sri Lanka).There were reasons why this lead from him was false. Her Fijian passport had no notation or stamp indicating she had travelled to the Solomon Islands in 1994, it listed a departure from Fiji but nothing for 1994. Her mother was not aware of her having a passport in the name of Gamgamma Yegatsami and denied the suggestion in cross-examination that members of her family called her daughter by this name. Australian immigration records had no record of anyone with the names "Yegatsami" or "Gamgamma" entering or leaving the country, no database around Australia connected the deceased to these names and the deceased leaving her Fijian passport and those of her children with Ms Stylianou for protection and safekeeping strongly indicated this was indeed her only passport. 82 In telephone conversations on 24 and 25 June 2002 the appellant told Detective Doueihi that on the day of the deceased's disappearance he looked for her at Port Kembla train station because a week earlier she had rung him and told him she was going to jump off the jetty and jump in front of a train and that "I took my eldest daughter to talk to her". The appellant claimed in evidence there were security staff at the station at the time. To Meta Jackson he claimed security personnel at the station were actually watching what was going on and that the deceased "took off her rings and put them on a chain that had been around her neck and gave them to Patricia." However, his eldest daughter, Patricia, told police that she had never been to a train station because her mother "might have been upset or … might have tried to hurt herself" and added that she had never been given her mother's jewellery before the time she took it all to Brisbane when her mother disappeared. As the Crown Prosecutor stated in his final address Patricia would hardly have forgotten this dramatic occasion accompanied, as it was suggested, by the histrionics of her mother and the symbolism of what she did with the necklace and ring. Police also obtained surveillance tapes for 2 June 2002 from security cameras covering the jetty and the train station. Neither the appellant, nor the maroon coloured 4-wheel drive he drove that day, nor for that matter the deceased, were pictured on those tapes. There was no reported relevant incident at the train station on 2 June 2002 or for the months before or weeks after. 83 Other false suggestions emanating from the appellant included his telling the detective that when he got back from church the nanny had told him "she has done with the man" and he thought now she had run off to Fiji with his cousin, Chinna Goundar. Then in February 2003 he suggested to the detective she was in New Zealand with Chinna Goundar. 84 The appellant submitted that the jury could neither be satisfied that the deceased was dead or if she is, that the appellant killed her. It was submitted that there were real possibilities that the deceased was pursuing a double life and had abandoned her children to go and live with Mr Goundar. In the alternative it was submitted that she may have committed suicide. To my mind neither suggestion has any substance. 85 There was a suggestion that one of her children may have said that their mother did not love them, only their father. It is difficult to give this any weight. This statement was apparently made after the deceased had disappeared. All of the other evidence from those who knew the family was that the deceased cared greatly for her children and their welfare, although by reason of her relatively impoverished circumstances she was required to work leaving her children in the care of Ms Assuamae. 86 Ms Assuamae, who apparently has only a modest command of English did give evidence that the deceased had said she was planning to leave the family. She gave the following evidence: "Q: Okay. And did she tell you that you had to stay with the children because she was going to go away to Fiji or somewhere? A: Yes." 87 Although this statement could support an inference that the deceased had intended to leave it is also consistent with her having a fear, which I am satisfied was justified that she may be deported. The trial judge took care to remind the jury of this evidence and the defence submission in her summing up. 88 The appellant emphasised that there were inadequacies in the evidence which it was submitted made it unlikely that the appellant had killed the deceased. There was no evidence of a struggle or blood at the Kembla Street premises. There was no evidence from any of the deceased's clothing and there was nothing unusual about the appellant's motor vehicle. Those who observed him on the Sunday morning did not report anything unusual about his demeanour or suggest that he was agitated. The appellant also emphasised the very limited opportunity for the appellant to dispose of the deceased's body. It was submitted that if he had killed the deceased there was no reason to delay, as he did, his departure for Queensland. In fact he did not leave until the middle of the afternoon having previously left the premises on two occasions to go for a drive. 89 I accept that it is an unusual feature of this case that there is no objective evidence of the deceased's killing. However, she could have been strangled which would not have required a weapon or left any objective evidence. I accept that although the use of the Sulo bin is possible, indeed likely, the deceased's body could have been disposed of by other means. Although obviously requiring careful consideration neither of these matters causes me to doubt my conclusion that the appellant killed the deceased. 90 With respect to the appellant's demeanour when collecting his children, if it was the case that he did not reveal any sense of agitation or concern this would not cause me to doubt my conclusion. His behaviour in leaving the house and allegedly driving around to look for the deceased was to say the least quite odd, especially when he had not tried to contact her by telephone or inform the police of his concerns. His behaviour in packing the family and that same day leaving for Brisbane and taking himself to the Solomon Islands almost as soon as he could is not consistent with a calm and rational response to the allegedly innocent circumstances. 91 The appellant submitted that the deceased had reasons to disappear. The relationship between her and Mr Goundar was emphasised. However, whatever the nature of that relationship, whether they were friends or intimate there is nothing to suggest that she made good an intention to leave the appellant to be with Mr Goundar. The suggestion is not supported by any evidence. It was submitted that the withdrawal of $2,000 shortly before her death and at the same time borrowing from her sister were inconsistent actions capable of supporting an argument that she had planned her own disappearance. It is true that the withdrawal of the $2,000 remains unexplained but there is nothing to suggest that it was utilised to obtain false records and leave Australia in disguise. 92 The appellant submitted that there was evidence that the deceased had the capacity to obtain a false passport and could have obtained an airline ticket in a false name. The records show that she made 40 telephone calls to Mr Pawar, an immigration advisor between 2 May and 20 May 2002. Mr Pawar denied speaking with the deceased or doing any work for her and it is apparent that he had no file for her. The appellant submitted that Mr Pawar was lying and lacked credibility. 93 To my mind the submission cannot be accepted. Mr Pawar had no apparent reason to lie and if he had dealt with the deceased would have known that the telephone records would have exposed his untruth. The likely explanation for the calls is that at the time Mr Pawar had in his office a work experience female, Ranjita Kumar who had come from Fiji. It seems probable that the deceased and Ms Kumar were friends. 94 The appellant submitted that the evidence established that the deceased had a propensity to tell lies. I accept that on occasions she may not have told the truth about particular matters - on occasions they may be explained as misunderstandings or that she changed her mind. However, it seems to me that whether or not she always told the truth has no bearing on the case made by the Crown against the appellant. 95 It was submitted that the deceased had a capacity for deception which extended to fabricating her own death in a way which would implicate the appellant as her killer. While it is obvious that the deceased had good reason to dislike the appellant and the evidence convincingly confirms that she was fearful of him and intended to leave him, there is nothing to support a theory that she was so determined to hurt him that she could organise to disappear without trace, ensuring that the appellant would be accused of her murder. 96 I reject ground 1 of the appeal.

Ground 2: The appellant suffered a miscarriage of justice because the Crown did not call Anthony Whittal to give evidence in the Crown case. 97 I have already related the circumstances relating to Mr Whittal. By not calling Mr Whittal the prosecution denied itself evidence of an alleged confession by the appellant. However, the probative value of that evidence was not great and the calling of Mr Whittal would have required the calling of witnesses who may have cast doubt upon his testimony. 98 Leave to raise this ground of appeal pursuant to Rule 4 is required. 99 At the trial defence counsel did not ask that Mr Whittal be called and it is plain that this was a considered decision. Given that his evidence would not have been favourable to the appellant this is not surprising. Counsel for the appellant advanced a theory that the calling of Mr Whittal would have enabled an argument to be advanced of a link between Mr Whittal's knowledge of a confession and Mr Timou as there arguably was in relation to the confession of which Mr Kalavisiri gave evidence. 100 I have already indicated that to my mind the evidence of Mr Kalavisiri was of limited value. It played no part in my conclusion that the appellant was rightly convicted. Whether the calling of Mr Whittal would have assisted the appellant is entirely speculative. Defence counsel at the trial for sound forensic reasons did not ask that Mr Whittal be called. As Gleeson CJ said in TKWJ v The Queen (20020) 212 CLR 124 at [16]-[17] a rational tactical decision by counsel, even if later regretted does not produce a miscarriage of justice. To my mind the appellant is bound by the decision of his trial counsel. 101 I would decline leave to raise this ground of appeal.

Ground 3: The appellant suffered a miscarriage of justice because the jury were not informed of the appellant's acquittal of the attempted murder charge on 15 August 2007. 102 The indictment in relation to the appellant's second trial contained two counts, one attempted murder, the other murder. The attempted murder count related to events which allegedly occurred on 5 May 2002, the evidence for which was provided by complaints which the deceased made to various police officers including in a statement. In one of the telephone calls to the police the deceased said that the appellant had tried to strangle her. The Crown case was entirely dependent on the evidence of those complaints. 103 There were inconsistencies in the deceased's version of these events as recounted by the police officers. Accordingly without evidence from the deceased herself the Crown case was not strong. Whether or not the deceased fabricated the events and for that reason the jury did not accept the evidence and acquitted the appellant cannot, of course, be determined. 104 At the appellant's third trial no mention was made of this count, the events to which it allegedly relates or the fact that the appellant was acquitted of it. Defence counsel, who obviously knew about the matter did not suggest that it should be raised. It is now submitted that by not raising the matter the appellant's trial was unfair. The argument presented to this Court was that if told of the acquittal by the jury at the second trial, the jury at the third trial would have been aware that a jury had not been satisfied that the deceased's complaints had always been truthful, weakening the Crown case in relation to the murder count insofar as it depended on evidence of the deceased's complaints about the appellant's conduct toward her. 105 To my mind the argument has no substance. If the issue had been raised, evidence about it would have to have been given. Even if a jury could not be satisfied that the appellant had attempted to murder the deceased, raising the issue would have added substance to the Crown case that the deceased was afraid of the appellant and was planning to leave him, knowledge of which had alarmed the appellant. Irrespective of the truth of the allegation of attempted murder, there was significant and undoubtedly credible evidence indicating that the appellant had mistreated the deceased. The suggestion that her series of complaints and the making of arrangements to seek refuge with the children were borne of some irrational response, without justification in the conduct of the appellant is untenable. Others had witnessed the appellant's violence toward the deceased. 106 Even if, as the appellant's argument must be, the appellant had not conducted himself in a manner which could justify the deceased leaving with the children the evidence is uncontradicted that she intended to do this and made arrangements accordingly. The Crown case was that it was knowledge of the deceased's intentions which motivated the killing. In these circumstances whether the deceased was a person who was prone to making false allegations about the appellant is not to the point. 107 To my mind trial counsel made a wise tactical decision and the appellant is bound by it. 108 There is a further matter relevant to this ground of appeal. During the course of his final address the Crown prosecutor explored a possible motive for the appellant to have killed the deceased. It was an alternative to the main Crown case that the appellant had acted to stop the deceased leaving him with his children. The Crown prosecutor suggested that the appellant may have killed the deceased to avoid her making false complaints about his conduct to the police. The prosecutor said: "The Crown can't identify to you the particular act that the accused did that caused [the deceased's] death. However, if you accept that he killed her, then an act was done by him which caused that result. It is furthermore the Crown case that when he [returned] to 40 Kembla Street, after he dropped the children off, that he did that act with the intention of killing [the deceased]. I say that for these reasons. He has told you on his oath that [the deceased] was somebody who had made false complaints about him. He tells you that the complaint about the assault on 4 May was a fabrication. So what he is in effect telling you is that this is somebody who I knew would make up stories about me, would tell the police that I had done things to [the deceased] even though I hadn't. If he had gone back to that house with the intention of assaulting her, or in a minor way of injuring her in some other way, he would have known without a shadow of doubt that she would have gone to the police. For him, it was all or nothing. He either did nothing about it, or he did the ultimate about it. He had a problem. He had a problem that he had to deal with on that day, otherwise there was a great deal at stake for him. It was a problem that for him needed a permanent solution. He obtained that solution by murdering [the deceased] on the morning of 2 June 2002." 109 The appellant submitted to this Court that this submission was unfair. Without evidence that a previous jury had acquitted the appellant of the attempted murder charge, it being submitted that that jury must have been satisfied that she had a propensity to fabricate allegations against him, the appellant was deprived of the opportunity of effectively responding to the Crown's submissions. 110 The Crown submission was of little weight, but to my mind the appellant's argument is entirely without substance. Apart from the potential prejudice to the appellant if the evidence of the attempted murder had been led, which I have already discussed, accepting the appellant's argument that the evidence would have added support to the proposition that the deceased was prepared to fabricate allegations against him, the effect would have been to lend support to the prosecution argument that he had killed her to avoid a false allegation being made about him to the police. 111 I would refuse leave to raise ground 3 of the grounds of appeal.

Ground 4: the appellant suffered a miscarriage of justice because, in the absence of evidence, the jury was effectively invited to speculate on the significance of exhibit S. 112 No point was taken in relation to this issue at the trial and leave pursuant to Rule 4 is required. I would refuse that leave. 113 Exhibit S was tendered, without objection by the Crown. It was a map showing a radius of 20 minutes driving from Kembla Street with the location of mine and quarry sites within the area marked by 26 red crosses with white borders. Its purpose was to demonstrate the possible distances the appellant could have driven before he collected the children after Sunday school, or on one of his two drives from the house later that morning and early afternoon. The Crown tendered other maps showing the distance from Kembla Street which the appellant could have travelled in 5, 10, 15 and 20 minutes. 114 Apart from providing evidence that it may have been possible to dispose of the deceased's body at a site within 20 minutes drive of the house, the exhibit had no significance. It was not suggested that any particular site was utilised. 115 The exhibit played little if any part in the trial, neither counsel referred to it in addresses. It merely demonstrated that there were sites within a twenty minute radius where a body could be disposed of. It was suggested in the appeal that the tender of the map was highly prejudicial to the appellant because it invited the jury to speculate that the deceased's body must have been disposed of at one of the sites. 116 It is apparent that if the appellant killed the deceased and I am satisfied that he did, her body must have been disposed of at some location. Even without the map the jury would have to have made that assumption.

Order 117 In my judgment the appeal should be dismissed. 118 HOWIE J: I agree with McClellan CJ at CL. 119 JOHNSON J: I agree with McClellan CJ at CL. **********

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