Mr Fretin, the Manager of Traveland at Leichhardt, gave evidence that the appellant attended his office with a Korean girl on 13 October 1989 and booked a ticket for her to travel to Wellington for the purpose of her being able to extend her visa. The appellant showed Mr Fretin a letter in which it was said that the appellant was supporting Ms Hyunmi. The trip was paid for with an American Express credit card from which the jury would have inferred that the trip was paid for by the appellant in order to have Ms Hyunmi remain in Australia. It was suggested in cross-examination that the person in attendance with the appellant that day may have been someone other than Ms Hyunmi. In our view, that was an absurd suggestion and the jury would have rejected it.

Mrs Kennedy in her original statement to the police gave very favourable evidence for the appellant, which, in our view, would probably have been rejected by the jury. She said she and her husband went to bed at about 9.30 pm and that during the night she heard a car drive away. She gave this evidence which not unnaturally was seized upon by Dr Gumbert: "I recognised the car as being Keith Herring's white Magna with JH number plates" (T1586).

The relationship of her bedroom to where the car was parked is not clear. The following evidence shows how inaccurate her assessment was (T1586):

"The reason I remember it being after midnight was because the following morning, which was Saturday, 25 November, I received a phone call from Keith Herring at about 7 to 7.30 am and I remember thinking at the time he had only left our place a few hours later".

That was not a very convincing way of assessing what time the appellant left the premises. Under cross-examination, Mrs Kennedy said she assumed the appellant left the premises between midnight and 1 am as that was the usual time he left.

She was extensively cross-examined about her statement, especially her reference to the number plate "JH". It was suggested that she had got out of bed and looked at the vehicle. She denied that. She, of course, had seen the appellant's vehicle on many occasions before this night as he was a regular visitor. She was familiar with the vehicle and with it being driven from the premises in the early hours of the morning.

Mrs Kennedy's evidence seemed to be that she woke up and heard the car being driven away and assumed it was between midnight and 1 am, which in itself is a very wide range of time. In any event, it is unlikely that she would have bothered to get out of bed. She woke up and made an assumption and she did not look at a clock.

It was suggested that when she made her second statement on 11 December she did not change her evidence as to the time she heard the vehicle drive away. She said, however, that when she made her second statement she was mainly concerned about the blue bag which Ms Hyunmi had to abandon at the airport.

In the first trial Mrs Kennedy gave evidence that Ms Hyunmi went up to her room at 8 or 8.30 pm, and there is nothing to dispute that evidence.

It was put to Mrs Kennedy that Miss Chung had attempted to convince her of the times. In respect to this, she said that Ms Hyunmi and the appellant arrived back after dinner before she and her husband went to bed and they went to bed at 9.30 pm.

We believe the value of Mrs Kennedy's evidence as to the time the appellant left the premises is summed-up by her answer to the following question which she was asked in re-examination (T1643):

"Have you ever at any time said that Keith Herring left your home on that Friday night earlier than the 12 to 1 am that you mentioned in that first statement?

We believe that it would certainly have been open to the jury to have rejected Mrs Kennedy's assessment of what time the appellant left her premises.

In the light of the appellant making no precise reference as to when he arrived at the premises and when he left the premises, it was open to the jury to accept, having regard to the totality of the evidence, that the appellant left in sufficient time to arrive at Berowra and carry out the murder of the deceased and then telephone Dr Tomlins at about 1.41 am.

Whilst some of this evidence is unsatisfactory, it is the type of evidence which you would expect from witnesses who were attempting to give reasonably accurate evidence. In our view, it is not suggestive of any conspiracy to get together in order to have the appellant convicted of murder.

The Crown case was that the appellant had a motive to kill the deceased, namely his infatuation with Ms Hyunmi and his financial situation. The appellant's case was that he was not in love with Ms Hyunmi, and in effect he described her as a sex object. There is overwhelming evidence of his passion for Ms Hyunmi in addition to the evidence which Ms Hyunmi gave.

At the conclusion of the Crown case it was submitted by Dr Gumbert on behalf of the appellant that there was no evidence of motive. His Honour the trial judge correctly rejected that submission. He pointed out there was clear evidence of motive, namely the existence of a passionate relationship with Ms Hyunmi (see judgment on application for verdict by direction, 21 September 1995, Appeal Book No. 7). His Honour went on to say:

"It is open to the jury to conclude that the relationship meant a great deal to the accused, and that he was anxious to continue it, but that his wife's presence rendered that not possible."

In the appellant's statement to the jury, he attempted to justify his relationship with Ms Hyunmi after his wife's death. He grieved, he said, by finding comfort in another woman (T2262). He said:

"I can swear I never had sex at my home with Miss Eim. I never never had sex at my home with her during that few days because of my reaction to finding out what had happened, you know, what the Terlichs told her. There was always in the back of her mind a hostility...".

It is interesting to note that despite the cross-examination to suggest otherwise, the appellant stated that he had sex with Ms Hyunmi on the night of the deceased's death, but he omitted to say where (T2263).

The appellant went on at great length to describe his technique of placing advertisements in the Sydney Morning Herald for the purpose of finding women with whom he could have sexual relationships (T2263 et seq).

If one accepts the appellant, one can only conclude that his sexual appetite was gigantean. He said (T2264):

"I used to see three girls a day you know at 10, 12 and 2 o'clock and as one girl got out of the car, I used to meet them at Hornsby Station, as one got out of the car the other one would be waiting there ...".

He told all these women that he was divorced. He said (AB2265):

"... people like Hyunmi, they are here in a strange country without their family, they are feeling low, they are feeling lost, lonely and maybe they want a relationship to get over this loneliness and maybe I exploited them."

The appellant tried to suggest that Ms Hyunmi was just one of his many women whom he used only for sex and that she was no different. He conceded that when he met Ms Hyunmi he liked her as a person. He said Ms Hyunmi was compliant because they had sex twice on the first day they met. He went on to describe the costs of massage parlours, as we understand it for the purpose of showing that his method was a cheaper way of obtaining sexual favours than visiting such institutions. He said (T2268):

"... every time I met Hyunmi there was sex. There was no other purpose of meeting her because if there wasn't going to be sex you go on to the next person. It wasn't meeting Hyunmi or purely company."

"... I used to try to keep fairly plain girls, so you can't fall in love you know, and they were there for six months, most of these girls, most of these are on tourist visas and student visas, so there's no involvement."

He said that rather than giving Ms Hyunmi money he would give her gifts. The majority of the jewellery he bought her was "in the cheaper price range" (T2270).

The appellant went on to vehemently deny that he had ever given Ms Hyunmi a $3,000 ring. He said (T2270):

"I know I never gave her a $3,000 ring - that's utter bullshit. I never ever given her a $3,000 ring, and the first time I have ever ever heard about the Goldmark $3,000 certificate for Miss Eim is in this trial here. ... No one has ever picked this supposedly $3,000 ring out from Miss Eim's collection of jewellery.

... If someone gave you a $3,000 ring a certificate, would you destroy that certificate? ...

This is why I can't understand all of a sudden, for the very first time, a $3,000 - and I did buy a ring, I did. It didn't go to Miss Eim. I know who had that ring - my wife. That ring never went to Miss Eim, and that's the first time I ever heard, as I said, that certificate being mentioned by Miss Eim. I've never told her to destroy any certificates like that, I've never asked her to destroy any Christmas cards I've sent her, I never asked her to destroy any letter I'm alleged to have sent her."

In our view, there was evidence which the jury could have accepted that the appellant did give Ms Hyunmi the ring. In July 1990, Detective Sergeant Fry interviewed Ms Hyunmi in Korea. Detective Fry photographed the jewellery which had been given to her by the appellant. In evidence she was shown Exhibit BA, the photograph taken by Detective Fry. She indicated that the sapphire ring and the diamond ring shown in that photograph were rings given to her by the appellant. She stated that the appellant gave her the diamond ring together with a certificate of warranty when they were on the Showboat. She said she did not have the warranty which valued the ring at about $3,000. There is evidence, however, that the ring was so valued.

There is also evidence of the appellant purchasing other jewellery. Mr David Keirs, the Managing Director of Denel Jewellers Pty. Ltd., gave evidence that he knew the appellant as a customer over a four year period. He gave evidence of the purchase of jewellery. In particular a pendant with the numbers "831" on it which the appellant told Mr Keirs meant "I love you" was purchased by the appellant at a cost of approximately $600.

Miss Bain, an employee of Denel Jewellers Pty. Ltd., gave evidence that between 1987 and 1989 she sold items of jewellery to the appellant which were given to Ms Hyunmi, namely a sapphire and diamond bangle valued at $700, a sapphire and diamond ring valued at $1,300, a Citizen watch, and opal and diamond earrings.

Miss Sellen, the Assistant Manager of Goldmark at Hornsby, gave evidence that she sold a 9 carat diamond tennis bracelet to the appellant on 11 October 1989 which was reduced from $1,690 to $760.50. Miss Sellen issued a certificate of valuation for the bracelet (Exhibit AT).

Many cards (which are contained in various Exhibits) were given to Ms Hyunmi by the appellant which expressed his love for her.

Mr Randerson, an insurance investigator, also spoke to the appellant on a number of occasions. On one occasion, in January 1990, he said to Mr Randerson:

"Some time before my wife's death I met a Korean student who I regard as something special. She is very pretty and I was going to move her into a unit at Hornsby so I could have closer access to her, she was special but not special enough to leave home for."

In addition to the evidence which has been referred to, there was evidence before the jury (despite the appellant's protestations to the contrary) that he had promised Ms Hyunmi that she would be able to live with him in his home at Berowra and that she was told this on the night of the deceased's death. Miss Chung was present during the conversation and she said the appellant said to her that she was welcome at his home at Berowra. Originally he had said that they wanted to move in together in January which is consistent with Ms Hyunmi's desire to go to New Zealand to renew her visa.

Mrs Kennedy, however, said that Ms Hyunmi had to leave her premises and consequently it was agreed that Ms Hyunmi should move in with the appellant the next day. The appellant told Mrs Kennedy that he wanted to go home early on the night of 24 November because he wanted to write a letter. He said he wanted to finish the renovations before Ms Hyunmi moved in.

Mrs Kennedy gave evidence that she asked Ms Hyunmi how she had met the appellant. Ms Hyunmi told her that she had replied to an advertisement for a live-in housekeeper which read "must be a young Asian woman". Mrs Kennedy said that Ms Hyunmi was suspicious and she did not go to the interview. She gave evidence, however, that the appellant kept ringing Ms Hyunmi and eventually she made arrangements to meet him in August.

Mrs Kennedy said that over the next few months she saw the appellant at her house on numerous occasions. Sometimes he would pick Ms Hyunmi up in the morning and take her to work. He would also ring and talk to her on the telephone for hours on end. He would bring her home from work in the afternoon. He would go out with her at night and often sat in the house for two or three hours waiting for Ms Hyunmi to get ready. When they were out at night they frequently did not return until after midnight.

Mrs Kennedy and her husband eventually decided to ask Ms Hyunmi to leave in late October but Mrs Kennedy said it was apparent to them that Ms Hyunmi did not make any efforts to find alternate accommodation. It was finally decided that she should be told that she would have to leave by the weekend of 25 November. There was supporting evidence of Mr Kennedy to the same effect.

Mr Kennedy stated that by the time Ms Hyunmi left their residence the appellant was taking her out on a daily and nightly basis. He recalled attending a birthday party for Ms Hyunmi on a floating restaurant with twelve guests including he and his wife which was paid for by the appellant. He became aware that the appellant had a wife and son but he was told that they were separated and living in England.

Mr Kennedy told Ms Hyunmi in October shortly after her birthday that she had to find other accommodation. He said she must have told the appellant about this because the appellant spoke to him in late October and told him that Ms Hyunmi could live at his home. The appellant asked Mr Kennedy why Ms Hyunmi had been told to leave and Mr Kennedy told him it was because they wanted to renovate the property.

Then there is the evidence of Mrs Kennedy when the appellant lied to her and informed her that he had received a telephone call from England and had been told that his wife had been killed in a car accident and that although they had been separated for years he was still terribly upset. He said he had to make arrangements for his son and property and he asked Mrs Kennedy if Ms Hyunmi could stay for another week to which Mrs Kennedy agreed.

Once again, the appellant's ability to tell lies for his own benefit is highlighted.

The undisputed fact is that within one week Ms Hyunmi was occupying the appellant's home unaware that he was not separated from his wife and certainly unaware that she had died from drowning in the swimming pool. Prior to her moving into the premises, the appellant showed Ms Hyunmi a photograph of Roland and told her that he lived in England and that he missed him a lot.

Ms Hyunmi gave general evidence of the appellant taking her out to restaurants, to the movies, shopping centres, and the beach. The appellant, she said, took her out to dinner on the floating restaurant and gave her a lavish birthday party and presents. She gave evidence of telling him that she had to move from the Kennedys' residence by 25 November 1989. He told her that he had another house at Berowra and that she could move into that house. He said he was renovating the bathroom. The conversation about the bathroom being renovated has some support because in fact the bathroom at Berowra was being renovated at the time by Mr O'Donnell.

Ms Hyunmi moved into the premises one week later. She referred in evidence to the fact that on the morning of the deceased's death she spoke to the appellant and he told her that his wife had died in an accident in England. She said he sounded like he was crying. He said he had been divorced for four years but that he still loved his wife. She said her stay at the Kennedy residence was extended for one week. He came over that afternoon looking tired and exhausted and fell asleep and when he woke up he left.

During the following week she talked to the appellant. He told her that he had to make arrangements for his son. On the following Saturday she went to dinner with him and Roland when she was enjoined by the appellant not to mention his wife's death because Roland was upset. Ms Hyunmi moved the next day to Berowra and the appellant helped her move. She was introduced to the neighbours as the housekeeper.

The appellant's version of how Ms Hyunmi came to move into his home was that after he had told her of his wife's death it was her idea to move in with him. The jury would have been entitled to reject his version and accept the version of Ms Hyunmi. In all likelihood they would have done so in the circumstances.

After Ms Hyunmi moved into the premises, she spoke to the Terlichs who told her about the deceased living in the house and drowning in the pool which shocked and confused her. When she spoke to the appellant about the matter he agreed that his wife had drowned in the pool. Ms Hyunmi, not unnaturally, wanted to know how the deceased had drowned. The appellant gave a very strange answer which the jury could have regarded as being of some significance. Ms Hyunmi asked the appellant, "How come she died in that depth of water?" She was asked by the learned Crown what the appellant told her and she said (T1200):

"He said that if you try to kill - if you try to choke her there will be bruise around her neck. If you poison her the police will find it all. If you kill her in the house in the bathroom, carry her to the pool, the police will collect the water in the pool and the water in the house and compare it and they will find out so it could not be him, that's what he said."

Ms Hyunmi telephoned Miss Chung and told her what she had learned and asked her to book her a flight to Korea because she did not want to stay in the house. That was confirmed by Miss Chung who said she spoke to Ms Hyunmi who seemed to be upset. She confirmed that Ms Hyunmi asked her to book a flight to Korea on 8 December 1989. Ms Hyunmi said that the appellant calmed her down a lot and she thought about it and changed her mind. She said he loved her "special or something like that". She said Miss Chung stayed the night at the appellant's home the night before she left. Miss Chung told her the next morning that the police had interviewed her and wanted to interview Ms Hyunmi. Ms Hyunmi then asked the appellant what was going on and he said that if she did not want to get involved she should leave.

It appears that the appellant then rang a travel agent and the booking for 8 December was still available. Ms Hyunmi flew out of Australia on the evening of 8 December. The appellant offered to pay her fare but she paid her own fare. Before she left the appellant replaced her supplementary American Express credit card and told her that she could use it at any time. It is quite obvious that at that point of time the appellant contemplated further contact with Ms Hyunmi.

As stated earlier, the appellant alleged that Ms Hyunmi offered to live at his house and help out when she heard that his wife had died. That is not a credible explanation as Ms Hyunmi understood that his wife had died in England. The jury would have been more likely to accept her evidence.

We have referred to how Ms Hyunmi came to be at the house. The appellant said that he had always stressed to Ms Hyunmi that his house was unavailable because he was renovating. He said she always had his address at Miss Chang's unit at Hornsby. He alleged that Ms Hyunmi asked Mrs Kennedy to call her a taxi to go to Hornsby as she had no idea of his address at Berowra. This was of course disputed by Ms Hyunmi.

In his statement to the jury the appellant purported to adopt what Mrs Kennedy had said but put a favourable interpretation on it, "My wife has died, can she stay on another week?" He said he knew it was only a matter of three to four weeks and Ms Hyunmi would be returning home to Korea. The jury could have inferred that he wanted Ms Hyunmi to stay.

He said he knew that Miss Chang who owned the unit at Hornsby wanted someone to live with her in the unit and pay rent because she wanted the money and that he told Ms Hyunmi, "That is where you are going, no ifs or buts". He went on to say he knew he could find her a place and "it wasn't going to be my home at Berowra". He said that Ms Hyunmi was the first girl he had given an American Express card to. He said, "I suppose I was big noting myself".

The appellant never explained how Ms Hyunmi came to live at Berowra other than saying it was her idea. The jury were clearly entitled to reject his unsworn version and accept the version of the Crown. Indeed, having regard to his inability to tell the truth, it would have been difficult for the jury to accept anything he said.

In addition, there was the evidence of the appellant sending Ms Hyunmi $1,000 and telling her that if she did not want to speak to the police she could go on a holiday. Ms Hyunmi said she sent the money back to him. The appellant agreed that he got the money back. He said that Ms Hyunmi telephoned him in January and told him that she had spent all her money paying her university fees. He said that whilst she did not ask for the money he thought "is she hinting she is broke".

If she had returned to Korea and it was unlikely that she would return to Australia in the foreseeable future, why did the appellant give her a supplementary American Express card and on top of that send her $1,000 and make arrangements for her to be represented by his solicitors?

Analysing the evidence, we are not satisfied that the jury should have had a doubt about the guilt of the appellant. The trial judge, Badgery-Parker J, who was one of the most experienced trial Judges in this court, stated in his remarks on sentence, in our view correctly, that there emerged in the case three very specific and substantial issues which were resolved in favour of the Crown. His Honour concluded, firstly, that the jury accepted that the appellant left the Kennedys' residence before 11.19 pm before Miss Chung received the telephone call from Korea. We have analysed the evidence relating to this matter in some detail, and we are satisfied that it was open to the jury to accept that evidence.

His Honour concluded that the jury, by their verdict, accepted the evidence of Miss Calautti that the deceased was alive at 12.30 am. We have dealt with this evidence in some detail.

His Honour went on to conclude that those issues having been resolved in favour of the Crown would have established to the jury's satisfaction that the appellant had lied as to the time he left Haberfield and when he claimed to have telephoned his wife from a telephone box near Haberfield between midnight and 12.30 am. His Honour stated that it was clearly open to the jury to regard those lies as evidence of a consciousness of guilt in the absence of any other rational explanation.

His Honour concluded that the jury would have found that injuries 1 and 21 were sustained before death.

His Honour referred to the appellant's relationship with Ms Hyunmi as a "very intense and passionate love affair". His Honour stated that the evidence had established that the deceased was aware that her husband was having an affair with another woman, although she did not know all the details. He stated that the deceased was very distressed and had made known to many of her friends, but more particularly to the appellant himself, that she was proposing to seek a divorce.

His Honour also referred to the fact that the appellant stood to gain substantially from a number of insurance policies upon the deceased's death, namely, almost $500,000.

His Honour stated that the Crown had relied upon the parlous state of the marital relationship, the intensity of the appellant's relationship with Ms Hyunmi and his desire that it should continue, and his prospect of financial gain from the death of his wife as providing motives for the murder.

The last matter is that it is contended by the appellant that the chloride ion evidence of Dr Duflou was unsatisfactory. It is submitted that the lengthy examination-in-chief and cross-examination of Dr Duflou on this issue and its ostensible "scientific validity" had the potential to inappropriately and dangerously impress the jury and divert the jury's attention to a matter upon which the evidence was completely unsatisfactory. It is further submitted that the unsatisfactory evidence of Dr Duflou as it was before the jury may have become a very relevant circumstance in the jury's consideration of the whole case, and consequently the verdict is unsafe.

The Crown, on the other hand, submits that the evidence of Dr Duflou did have the appearance of complexity, but once analysed into its components its strengths and weaknesses became apparent and were able to be commented upon clearly by the trial judge.

The only common ground as to the theory postulated by Dr Duflou concerns the basic proposition of a dilution theory. In the appellant's submissions (paragraph 14.78) there is set out the basic proposition that the chloride ion level in both swimming pool and tap water is less than the chloride level in the blood of a living person. Further to the dilution theory, if the chloride level of a particular sample of water has a chloride level reading close/similar but not equal to the blood chloride level of a living person, then the dilution theory dictates that for there to be an apparent reduction in the blood chloride levels of the person, a great or large volume of water will need to be ingested by that person. Alternatively, if a particular sample of water has a low chloride level, significantly below that of the blood chloride level, then to produce an apparent reduction in the chloride level in the blood of a living person, only a small amount/volume of water need be ingested by that person to realise an apparent reduction in the blood chloride level of that person.

The Crown and counsel for the appellant accept the basic dilution theory and counsel for the appellant submits that it is "not particularly controversial".

The appellant takes issue with the evidence of Dr Duflou shortly after Dr Duflou outlined the theory of dilution. In 1991, Dr Duflou developed his formula based on the scientific theory of dilution. The formula was developed from data extracted from the medical records of the Institute of Forensic Medicine and can be applied to provide basic indications as to the volume of water a drowning victim may have ingested, and what type of water.

The appellant submits that at the trial Dr Duflou's theory was harshly criticised by both Drs. Little and Oettle in its application to the case in hand. The appellant takes issue with the variables employed by Dr Duflou that made up the figures upon which the formula was calculated. The variables which were employed in the formula were:

* The chloride ion level in the body before drowning.

* The chloride ion level in the body after drowning.

* The chloride ion level in the water the deceased potentially drowned in.

The appellant relies on the evidence of Dr Duflou at T1873.12 where he agreed with the suggestion that any shift in the figures he used in the formula would substantially alter the result. Further, Dr Duflou stated that he had attempted to show that if the variables were altered there would be a substantial alteration of the result.

The appellant, in furtherance of this appeal point, makes submissions as to each of the four variables outlined above. The Crown submits that the impact which variations in those four components had on the results were graphically illustrated by the Crown Exhibit AO and the defence Exhibit 16, and the Court accepts the correctness of that proposition. It was made clear to the jury that any change in the variables of the formula would alter the result. We see little merit in specifically addressing each variable, but for the sake of completeness we will do so.

As to the volume of blood in the body, Dr Duflou agreed that his initial figure of five litres, used in the first trial, was not correct, and he consequently reduced the figure to 3.5 litres of blood to accommodate the diminutive stature of the deceased. Counsel for the accused, Dr Gumbert, made much of this fact, despite it making perfect sense. Dr Duflou stated that the average volume of blood in a person was 4-5 litres. Yet it is clear that the deceased was not average; she was a small woman of Asian extraction who weighed 43 kilograms. Various figures were put to Dr Duflou as to the approximate volume of blood of the deceased. Dr Duflou agreed in cross-examination that the deceased's blood volume could have been as low as 3 litres. When pressed for a figure on the basis of the Geigy Tables, he agreed that her blood volume, calculated according to the Geigy Tables, may have been 2.8 litres. All of this evidence was before the jury, and it was open to them to accept or reject it.

As to the chloride ion level in the blood after drowning, the defence expert witnesses, Drs. Little and Oettle, expressed their own opinions as to the chloride levels found in a person after death. Dr Little stated that her laboratory no longer employed the test because the results could not be interpreted. Dr Little expressed the view that if the samples were taken immediately after death, any reading for chloride may have more efficacy in the formula postulated by Dr Duflou. Further, Dr Oettle expressed criticism of the post mortem chloride level due to the fact that the samples were taken three and a half days after the deceased drowned. The evidence of Dr Duflou at T1916.50 is diametrically opposed to that of Dr Oettle on the question of post mortem blood chloride levels. Dr Duflou stated that the figure he used was valid. His opinion was that "there appears to be no correlation between the drop in whole blood chloride or raising and the post mortem interval".

As to the chloride ion level in the body before drowning, Drs. Little and Oettle stated that the deceased vomiting in the morning would have had the effect of decreasing her blood chloride levels. Dr Duflou stated that if a person was to vomit a couple of times he would not expect chloride levels to decrease significantly, and that for there to be any significant reduction in blood chloride levels the vomiting would have to continue for some days, and then chloride levels could quite possibly go down. Dr Duflou rejected the proposition that once a person has vomited and expelled the stomach acid there will be a drop in chloride levels.

As to the chloride ion level of the pool water, the appellant contends that the pool water sampled was no guarantee that the sample taken was representative of the chloride level of the whole pool, or the water inhaled by the deceased. The appellant submits that Dr Duflou agreed with that contention, yet at T1880.35 Dr Duflou stated that the amount of chloride in the pool was "within broad parameters, probably fairly close throughout the pool". The only concession made by Dr Duflou was that if the method of chlorination of the pool was by way of a floating pellet device there would certainly be areas where the concentration of chloride would be higher, i.e. the area of pool water immediately surrounding the floating chloride dispensing device.

The appellant questions the reliability of Dr Duflou's formula generally, and focuses upon the different results that can be obtained by altering the input variables. We would have thought that this was rather uncontroversial. It is clear that there are four input variables in the formula of Dr Duflou. It seems that the appellant is placing too much emphasis and reliance upon this formula. Dr Duflou and the learned Crown Prosecutor stated numerous times that the formula and the opinion of Dr Duflou were to be taken and considered no higher than an indication that Dr Duflou was prepared to express that it was more likely than not that the drowning occurred in tap water as opposed to pool water. Dr Duflou said that he had never stated definitely that the deceased drowned in pool or tap water and that he could only give an indication of which was more likely (T1916.27).

As to the attitude of the learned Crown Prosecutor, in his address to the jury he made it clear that Dr Duflou had never elevated his opinion higher than an indication that in his opinion it was more likely than not that the deceased drowned in tap water rather than pool water (T2677). Further, the learned Crown Prosecutor invited the jury not to attempt to resolve the matter if they thought the expert evidence was intractable (T2680). The learned Crown acknowledged that the formula and the opinion of Dr Duflou was a small part of the case against the appellant and one of the many circumstances of the case and that the evidence of Dr Duflou, put at its highest, was an indication.

The appellant seeks to establish that the formula and the methodology employed by Dr Duflou was not reliable. The appellant seeks to rely on the fact that, in the first trial, Dr Duflou was wrong in the application of his formula and the methodology he used. Dr Duflou agreed that this methodology had been "sloppy" in the first trial. Dr Duflou agreed that his formula had not been subject to empirical testing and general peer review.

In the second trial, Dr Duflou did not shrink away from the application of his formula, and was at times at pains to highlight the shortfalls and variables in the application of the formula to this particular case. Dr Duflou made it clear in his evidence that any results from the application of his formula were indications only, and, that by their very nature, indications serve only to suggest or point out and are not definitive in application.

Further, Dr Duflou's evidence as to his methodology and application of the formula was subject to extensive and critical review by Drs. Little and Oettle. Further, admissions by Dr Duflou himself as to the limitations of his expert evidence, the limited reliance placed by the Crown upon the formula, and the clear and balanced directions by the trial judge on the strengths, weaknesses and reliance to be attributed to the evidence and formula of Dr Duflou, were all before the jury for their consideration and evaluation. Accordingly, in our opinion, the evidence of Dr Duflou is not such that it is cast in the dark shadow of unreliability.

The trial judge explained to the jury the theory and formula of Dr Duflou and the challenges presented to it by the defence (SU-208-217). The trial judge summarised the two conflicting points of view (SU-216). After the initial direction as to this evidence, Dr Gumbert sought further directions and the trial judge reiterated the significance of the expert evidence for the defence as it was then contained within defence Exhibit 16 (SU-221-222). The trial judge made reference to the evidence of Dr Duflou and expressed the opinion that he viewed the evidence that the deceased was not drowned in the pool as "tenuous". On a general level, the trial judge did not find the evidence of Dr Duflou "highly persuasive". Such remarks are indicative of the fact that the minds of the jury were alerted to and cognisant of the limitations and deficiencies in Dr Duflou's evidence.

The Crown submits that the evidence was based upon an agreed sound scientific theory, and this was clearly acknowledged by the Crown in its limited reliance upon it. The Crown concedes that the evidence was controversial in areas and that it was clearly explained by the trial judge. Accordingly, it is submitted, there is no risk that it could have contributed to any unsafe or unsatisfactory verdict.

In conclusion, the directions by the trial judge, in our opinion, appraised the jury of the inherent dangers of the expert evidence, and appropriately allowed the tribunal of fact to properly consider the significance of the evidence in such a light, so as not to allow the evidence to poison or inadvertently divert the attention of the jury to the extent that it may have indeed become a very relevant circumstance for the jury in their consideration of the whole case. We do not consider that the jury's focus or attention was clouded or retarded by the expert evidence, and any ostensible scientific validity that may have been attached was properly and clearly ameliorated by the directions of the trial judge in his summing-up to the jury.

It was for the jury to assess the witnesses in this case and to determine whether they accepted their evidence or not. The paramount position of a jury must always be borne in mind in determining guilt or otherwise in a criminal trial. In M v The Queen (1994) 181 CLR 487 at 493, the court stated:

"Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations."

It was therefore the province of the jury to assess the credibility of the witnesses who were under attack in the Crown case.

To highlight this advantage in the present case, it is interesting to note the words of the trial judge when he said in his remarks on sentence (at 5):

"Nothing in what I have said thus far should be taken to suggest that I have the slightest doubt about the propriety of the verdict. Having had the opportunity myself to assess the witnesses, and in particular the three whose credibility was most severely challenged, Miss Hyunmi, Miss Chung and Miss Calautti, I am satisfied that it was clearly open to the jury to find each of the three of them to be a witness of truth, as was indeed my own very clear impression. I formed that impression notwithstanding the very skilful, sustained and potentially devastating cross-examination of each of them by Dr Gumbert on behalf of the accused."

In considering this matter, we refer to the High Court decision of Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 where the facts are not entirely dissimilar to the facts in this case. Plomp was found guilty of drowning his wife in the surf. The Chief Justice, Dixon CJ, said (at 241):

"In the conditions described by the evidence it was not likely that a fairly good swimmer not unfamiliar with the surf would have been lost unless his or her efforts at recovery were in some way obstructed; but if the facts had rested there it would be indeed difficult to find that the drowning of the swimmer was caused in any way by the person with whom she was swimming. But the facts do not rest there. It was proved that Plomp had formed a liaison with another woman whom he had promised to marry, that he had represented himself as a widower and that he was continuing the liaison. In the circumstances, proved by apparently credible evidence, it was open to conclude that Plomp had the strongest reasons to be rid of his wife. It is unnecessary to traverse all the circumstances in detail. They were placed before the jury and doubtless considered by them. It is enough to say that on the whole case I think it was reasonably open for the jury to be satisfied beyond reasonable doubt that the deceased had been drowned as a result in some way of the conscious agency of the applicant Plomp. I therefore think the verdict of wilful murder is sustainable on the evidence."

"It is objected that Plomp's motives cannot be taken into account until it is shown by evidence that in some physical way his actions were responsible for his wife's death. There is nothing, it is said, to show that anything he physically did impeded her emerging from the surf or recovering her equilibrium. Until that is shown, evidence of motive cannot be used, so it is said, to prove guilt. There is, in my opinion, no legal doctrine to that effect. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. In this case the word `motive' was used during the argument and no doubt at the trial to cover much material. But is not clear to me whether some of that material did not go somewhat further than what is ordinarily comprised under that word. In the course of the summing up the learned judge who presided at the trial said to the jury: `You must remember that before you can use evidence of motive, there must be a sufficiency in the evidence to establish to you that this death was not an accidental death, to establish to you that he did something in order to get his wife into the water, and having got here there, he wilfully murdered her.' This appears to me to go too far in the accused's favour. I think that if the whole of the evidence is read and what the accused said and did both before and after his wife's drowning is considered with all the circumstances of her drowning a reasonably strong circumstantial case is made against him, but I cannot think that this is so if you omitted from it all the detailed circumstances of his dealings with the other woman. It is said that the ordinary rule relating to circumstantial evidence has been ignored or departed from in convicting the accused, namely the rule that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances."

We believe that the remarks of Dixon CJ in Plomp are particularly apposite to the circumstances in this case.

The fact is that the deceased was drowned in circumstances where, in our view, the jury were entitled to reject suicide or accidental death as reasonable possibilities. Furthermore, it was proved beyond reasonable doubt that the appellant had formed a liaison with another woman. He wished to continue that liaison and he wanted Ms Hyunmi to live in his home at Berowra. Quite obviously, that could only be done if the deceased was not living in the home. The appellant represented to Ms Hyunmi that he was divorced. In the circumstances, proved by the credible evidence, it was open to the jury to conclude that the appellant had the strongest reasons to be rid of his wife. In our view, it was reasonably open to the jury to be satisfied beyond reasonable doubt that the deceased was drowned as a result in some way of the conscious agency of the appellant.

In those circumstances therefore this ground of appeal must fail.

Ground 14 A: There is reasonable apprehension that the verdict has been affected by an improper extra curial communication on the part of a juror.

In relation to this ground evidence was tendered in the form of an affidavit sworn by the solicitor for the appellant, Mr Voros. He deposed that, at the conclusion of the trial on 20 October 1995 (in fact, the jury returned their verdict on the afternoon of 19 October; part of the sentencing proceedings took place on 20 October), he and Dr Gumbert spoke to the appellant in the cells and then went to a nearby hotel where he saw a large number of members of the jury sitting at a table drinking with the Crown Prosecutor and his instructing solicitor. Mr Voros and Dr Gumbert joined the group. He had a conversation with the man who had been the foreman on the jury. The foreman said that, prior to the appellant making his unsworn statement, "he had most of the female jurors on side" (paragraph 4). Another juror who was part of the conversation then said that he had previously been employed as a political reporter with the ABC and that it had struck him as unusual that the appellant was allowed to make an unsworn statement in the light of recent amendments to the relevant provisions of the Crimes Act. He said that he had at some stage spoken to somebody he described as a "barrister friend" who had explained that the matter was an old trial (paragraphs 5 and 6).

After hearing argument this Court declined to admit the affidavit evidence. It is appropriate now to state our reasons for that decision.

There is a long line of authority relating to the admissibility of evidence concerning the conduct and deliberations of a jury in criminal and civil trials. The first principle that emerges is that any evidence that discloses jury deliberations is inadmissible. Recent authorities in this court, which refer to the origin of and explanation for the rule include R v Emmett and Masland (1988) 14 NSWLR 327; R v Rinaldi and Kessey (1993) 68 A Crim R 284; R v Minarowska and Koziol (1995) 83 A Crim R 78 and R v Slater, unreported, CCA, 20 July 1994. In Emmett this court drew a distinction between disclosure of jury deliberations and disclosure of events which, even if they took place in the jury room, were extrinsic to the jury deliberations. Evidence of the latter will, in an appropriate case, be admitted. These principles, developed and enunciated in cases that pre-date the commencement of the Evidence Act 1995, have been expressly preserved by s 9 (2)(a) of that Act.

Given the distinction drawn in Emmett, it is necessary to analyse the evidence tendered on behalf of the appellant and to identify the purpose sought to be achieved by its tender. If that exercise demonstrates that the evidence was tendered as evidence of the jury deliberations, it was inadmissible. If it were tendered to prove matters extrinsic to the jury deliberations, it was not necessarily excluded by the principles to which we have referred and may, subject to other rules of evidence, have been admissible.

It is clear that the evidence in paragraph 4 in which Mr Voros deposed that he had been told that, prior to making his unsworn statement, the appellant had most of the female jurors on side, had no purpose other than to disclose the deliberations of the jury and could not be admitted. Senior counsel for the appellant in fact accepted that this was so.

The second substantive part of the affidavit was that in which Mr Voros deposed to the conversation with a male juror about the entitlement of the appellant to make an unsworn statement. It is not apparent from the affidavit that he communicated his curiosity, or the information he received from his barrister friend as a consequence of his curiosity, to other members of the jury. It is therefore not apparent that this evidence goes to the deliberations of the jury as a whole. Nor is it clear from the affidavit when he received the information he did from his barrister friend. It has not previously been necessary to refer to an affidavit filed by the Crown in response to that of Mr Voros. That was an affidavit sworn by Ms Ilardo, a solicitor who instructed the Crown Prosecutor in the trial. Ms Ilardo's evidence, if it had been admitted, would have shown that the discussion with the members of the jury took place at about lunchtime on 20 October 1995, following the sentence proceedings. The verdict had been returned at 3.30 pm the previous day, 19 October. Even if the evidence of what the juror said were otherwise admissible, it would not show that the communication with the barrister took place prior to the delivery of the verdict. The communication either took place before or after verdict. If it occurred after verdict, it can have no possible relevance in this appeal. If it occurred prior to verdict, then evidence that it occurred can have been tendered for no reason other than to disclose something of the reasoning process of this particular juror. Hence it is properly to be regarded as part of the deliberations of the jury. References in the authorities to deliberations of the jury are not confined only to such matters as are stated orally in the presence and hearing of the whole of the jury, but include the manner in which individual jurors, as well as the jury as a whole, arrive at a verdict. That is what this proposed evidence is about.

The consequence is that this passage was also inadmissible, either as entirely irrelevant (if the communication occurred after verdict), or as contravening the principle concerning jury disclosure (if it occurred before verdict).

The affidavit contained nothing else of substance; what remained had to be rejected on grounds of relevance.

Objection to the evidence was taken by the Crown also on the ground that it was hearsay. In part, this question may have turned upon, or been affected by, the question whether evidence tendered in the appeal (unlike evidence tendered in the trial) was governed by the provisions of the Evidence Act 1995. Given the decision of this Court on the argument of substance, it is unnecessary to determine this issue.

It is appropriate again to remind members of the legal profession who have been involved in a criminal trial of the undesirability of engaging in discussions with individuals who have served as members of the jury. Such an observation was made in Rinaldi and attention was there drawn to the provisions of s 68A of the Jury Act 1977. Those provisions then prohibited any person soliciting information from jurors for the purpose of obtaining information on the deliberations of the jury for the purposes of publication. By recent amendment (Jury Amendment Act 1997 No.15) which commenced 1 July 1998 the words "for inclusion in any material to be published or any matter to be broadcast" have been deleted. It is an offence to solicit information from jurors for the purpose of obtaining information about the deliberations. Practitioners who engage in discussions with former jurors expose themselves to the risk of contravening the section. Although in this regard it is appropriate to take into account the description of events given by Ms Ilardo that the gathering in the hotel took place the day after the verdict was delivered, it remains unwise for the legal representatives of the parties to permit themselves to be in a position where there is a real possibility that they will encounter members of the jury. Where they do so unintentionally or unexpectedly, they should refrain from being drawn into discussion about the trial.

It follows from the rejection of the evidence that this ground of appeal must fail.

We turn now to the application for leave to appeal the sentence imposed.

As mentioned above Badgery-Parker J imposed a sentence of penal servitude for twenty-two years and three months, made up of a minimum term of eighteen years and an additional term of four years and three months. The sentence was deemed to have commenced on 19 March 1990, the day the appellant was taken into custody. In arriving at this sentence his Honour took into account, bearing in mind the principle of totality, a sentence of imprisonment for two years imposed on the appellant after his conviction for contempt of court, an offence committed during the first trial. That sentence commenced on 3 October 1991 and expired on 2 October 1993.

Two arguments were advanced in support of the application for leave. The first was that the overall sentence was manifestly excessive. The second was that, as a proportion of the total sentence, the minimum term was excessive and that the appellant should have been sentenced in accordance with "the statutory ratio" provided by s 5(2) of the Sentencing Act 1985.

The appellant called no evidence relevant to sentence. His Honour made all relevant findings of fact. A number of issues that had arisen on the evidence he found favourable to the appellant. Included in these were such important findings as a finding that he was not satisfied beyond reasonable doubt that the appellant's act of killing his wife was premeditated. This finding had a significant impact on the sentence he imposed which, he said, would otherwise have been one of penal servitude for life.

The appellant was born on 10 June 1946. He was forty-three years of age at the time of the murder, forty-nine at sentence. His Honour took into account that, at his age, a lengthy sentence would make greater inroads into what remains of his life than the same sentence would on a younger person.

The principal matter argued in relation to the total sentence is that his Honour began on a false premise, that is, that had he found premeditation proved beyond reasonable doubt, a life sentence would have been required. It was submitted that this was erroneous because such a sentence is not appropriate except for the worst class of cases into which the present case does not fall and would not, even if premeditation were found proved: R v Twala (unreported, CCA, 4 November 1994); R v Fernando (unreported, per Abadee J, 21 August 1997). It may be accepted that the sentence of penal servitude for life on a charge of murder is a sentence to be imposed only in the worst category of case; but the fact that a case even more reprehensible may be conjured up in the imagination does not mean that a particular case does not fall into that category.

Counsel pointed to the judgment of Kirby P (as he then was) in his decision in the appellant's previous appeal: R v Herring (1994) 74 A Crim R 72 at p 73. Slattery J had found beyond reasonable doubt that the offence was premeditated and imposed a life sentence. Kirby P considered the challenge to the sentence "distinctly arguable". Because that court allowed the appeal against conviction and ordered a new trial it was unnecessary to reach a concluded view on the application for leave to appeal the sentence.

The argument advanced on behalf of the appellant was simply that his Honour started with the proposition that, if premeditation had been proved beyond reasonable doubt a life sentence would have been called for, and worked backwards from that; if the foundational premise was wrong, the calculations that followed were also wrong. In our opinion, had this offence been premeditated, an appropriate sentence - not necessarily the only appropriate sentence - would have been one of life imprisonment. We do not think it is correct to say that his Honour began with a notional sentence of life imprisonment and worked backward to the sentence at which he ultimately arrived, and certainly not correct to say that he started with the proposition that in that event a life sentence was the only sentence available. Having not found premeditation proved, his Honour appropriately went about the task of examining all relevant mitigating and aggravating factors, deriving such assistance as he could from sentences in other cases which might be described as broadly comparable and, in the proper exercise of his sentencing discretion, arrived at the sentence he imposed. In our opinion no error has been shown in this process and the sentence is one within the range available.

The second limb of the argument in relation to sentence was that the total sentence of twenty-two years and three months should have been broken up, in the conventional fashion, into a minimum term of 75 percent of the total and an additional term of 25 percent. This would have resulted in a minimum term of a little over sixteen and a half years, and an additional term of a little over five and a half years.

Counsel acknowledged that, while special circumstances have to be found before the additional term may exceed 25 percent of the total sentence, it is not necessary for the sentencing judge to make such a finding where the additional term is to be less than 25 percent of the total term. Nevertheless, counsel argued that, absent special circumstances, sentences should ordinarily be constructed in that way. There is no authority for this proposition and it is not warranted by the provisions of the Sentencing Act. We see no error in the way in which his Honour constructed the sentence. We see no error in the way in which his Honour constructed the sentence. We consider that leave to appeal against the sentence imposed should be granted but that the appeal against sentence should be dismissed.

Therefore the formal orders of the Court are as follows:

2. Leave to appeal against sentence is granted but such appeal is dismissed.