How did the prosecution put its case?
280Towards the end of his final address to the jury the Crown prosecutor summarised the Crown case in the following terms:
"The accused met up with Basquali and Samartis between 12 and 1. At some time before 1 pm, the accused dropped off Rene Rivkin at the Alife restaurant. Between 1 pm approximately and 3 pm approximately the accused was at Watsons Bay with Caroline Byrne and a second man, unknown at about 3 pm they, left Watsons Bay. At that stage everything was friendly.
Shortly after 3 pm following lunch at Watsons Bay, the accused and Gary Redding report to Rene Rivkin at the Alife restaurant. Rivkin becomes agitated. Between 3.30 and 4 pm Caroline Byrne's card is used to do some shopping or banking transactions, at Paddington and Vaucluse. At some stage around 4.30 to 5 pm Caroline Byrne in the Vitara returns to Watsons Bay. We don't know why, what it was that caused her to return to Watsons Bay.
By 5.14 pm the accused has switched off his phone. By 5.30 pm Caroline Byrne's phone is switched off and her diversion is switched off. Around the same time, the accused's diversion is switched off. At 5.48 pm the accused makes his last mobile phone call for the day until 4.44 am the next morning. He ignores some pager messages from Rene Rivkin and his son around the 7.30 to 8.30 mark.
At some stage in the evening, the accused and a second male join Caroline at Watsons Bay. At 8'ish Mr Doherty sees the accused and Caroline Byrne with a second man arguing in Military Road. By that stage the situation had become very ugly, with the accused berating Caroline in a very similar manner to the way that he had berated her at the gym the previous Friday. Caroline was cowering in exactly the same way that Christine McVeigh had seen her cowering at the gym the previous Friday. She was still answering him back in a combative manner.
They continued arguing from about 8pm for about three and a half hours until her death at 11.30 pm. The argument went right up until the scream. The scream was most likely Caroline being rendered unconscious or incapacitated. Her death was not a suicide but a murder.
The accused by his precise knowledge of where her body was located and by the orientation of her body head down, must have been present with her during the argument and when she went over the Gap. The scream was most likely Caroline being rendered unconscious or incapacitated.
The accused has no alibi between leaving Basquali and Samartis and meeting up with Peter and Tony Byrne, except for the sighting at the Alife restaurant at 3 pm.
We submit that the accused had a motive to kill Caroline, and he had the requisite strength to spearthrow her to her death, either on his own or in combination with the second unknown male. We submit the accused caused her death, either on his own or in combination with the second unknown male."
281Criticisms are made of the Crown prosecutor's address under ground 6 of the appeal. I shall deal with those issues separately. However, when determining whether the jury's verdict was unreasonable it is important to give careful consideration to the way in which the prosecutor put the Crown case to the jury.
282The prosecutor accepted that before the jury could convict the applicant they had to be "satisfied beyond a reasonable doubt that Caroline Byrne did not commit suicide, because unless the Crown can exclude suicide beyond a reasonable doubt, the accused is entitled to an acquittal." As was appropriate the prosecutor referred to some of the evidence in the course of his address and invited the jury to draw conclusions from it. In relation to other matters, sometimes critical matters, the prosecutor argued for conclusions based on his own speculative propositions. There is always a danger when a prosecutor takes this course, a danger which the applicant submitted materialised in this case and caused the trial to miscarry.
283The prosecutor commenced his address by concentrating on the evidence which suggested that the applicant was able to identify Ms Byrne's body on the rock ledge in the dark of the early morning of 8 June. The prosecutor emphasised that the evidence was that the applicant knew where the body was and also knew that her feet were up. The prosecutor submitted that the only way in which the applicant could have known where Ms Byrne was and that her feet were up was if he were "there when her body went over."
284The prosecutor put it in this fashion to the jury:
"How would he possibly know that she's feet up? He couldn't possibly have known that. If somebody, if you suspected that a loved one had jumped off the Gap, you would think that their body was splat on the rocks. You would not think, 'I can see her feet, I can see ankle skin, I can see the end of the trousers.' The only rational explanation for the accused's knowledge is that the accused was there when she went over the cliff."
285The evidence of the others present at the time, particularly Peter Byrne, was that the night was so dark and the presence of spray and wash on the rock shelf was such that, in combination, it was not possible to see anything at the bottom of the cliff. This must mean that the applicant could not have known, even if he was responsible for Ms Byrne falling to her death, that she had lodged in the rock shelf with her feet in the air. There was nothing to suggest that visibility would have been better at the time at which she died compared with the time at which the others who sought to identify her were present. The Crown prosecutor did accept that the applicant was not acting rationally in the early hours of the morning.
286The Crown prosecutor emphasised that when interviewed in 1996 by Insp Wyver, the applicant appeared to change his story. The prosecutor said that he "told blatant lies in an attempt to avoid the inevitable conclusion that we say one reaches about his knowledge of where her body was and the orientation of her body." I accept that in some respects details he gave to Insp Wyver were different to what he is reported to have said on the evening. However, faced with the assertion by others that it was not possible to see anything, it is likely that even an honest person would seek to rationalise their own behaviour on that evening. When challenged about this issue in his interview with the "Witness" program, he responded by saying: "I'd be a bit of an idiot wouldn't I to point to everybody about where she was if I had killed her." The ultimate difficulty for the Crown submission is that if nothing could be seen that night then, even if the applicant were responsible for her death, he would not have been able to identify where she was and the position of her body.
287The prosecutor submitted that this issue was the "bottom line of the prosecution case." It was said to be "a killer point, an irrefutable point." It will be plain that I do not accept that this issue had that impact or indeed was of any particular significance at all. The trial judge said of it:
"When the Crown prosecutor began his closing address to you, he spoke about what he called the 'bottom line' and the 'killer point'. The prosecutor was referring to the position and attitude of the deceased's body and to evidence of what the accused said at the cliff top, looking down to the rocks below. A number of people gave evidence of what the accused said on that occasion, and there is a dispute about what he said. There is only one contemporary account of what he said, and that is what the accused told the police at Rose Bay. You have exhibit AP, the statement of 12 June 1995 soon after the events. That matter is not touched on in the interview which took place in the following month.
The evidence of witnesses who have told you what the accused said, or what he told them he had said, is all based on statements which did not come into existence until after this became a murder inquiry in May 1996. An important witness relied on by the Crown is Mr Peter Byrne. You will remember that Mr Byrne senior, on behalf of the Byrne family, told the police that no member of the Byrne family would be giving a statement. There is no evidence that Mr Peter Byrne, when preparing his statement a year or so later, worked from any written note that he had made of what the accused said."
288His Honour continued on this issue:
"921. The issue here is this - and it was postulated for you in, I think, the second or the third of the 50 questions the Crown posed for your attention at the close of his address - it is called "the bottom line", "the killer point":
922. "What did the accused say? Did he say, 'I can see legs and a body'."
923. There are various versions in the evidence of the witnesses: Peter Byrne; the "Witness" programme (page 10); Constable Griffith (448); Peter Byrne's evidence (at 386) was: "He stated to me that he could see legs and a body." That's a pretty strong statement," He could see legs and a body."
924. Mr Powderly told you that the man who was presumably the accused said "That's her. That's the clothes she was wearing."
925. Mr Gale said at 454, "The accused said, 'That's her'." And he said, when asked whether there was any way he could have seen the body at the base of the cliff, he said, "No, it was not possible."
926. And there are various other statements in the evidence of Miss Cook, Miss Butler, Miss Watson.
927. Mr Cracknell says it was so dark that they couldn't see anything from the helicopter. "We couldn't see anything", he said. They had the helicopter there for 25 minutes.
928. It is difficult to know what to make of that evidence. Why would anybody go to the expense and trouble and, not to say, danger of having a helicopter in a position in which they couldn't see "anything" for 25 minutes raises a strong suspicion, I suggest. Perhaps all he meant was they couldn't see a body.
929. Anyway, he described the light the helicopter had, a very, very powerful one, and he said they couldn't see anything.
930. This goes to two things: first, the blackness of the night, the difficulty of seeing, you have heard evidence of sea spray; and the things that the accused said.
931. The accused's account is in his statement. He said he thought he saw - "I thought I saw." And the question was raised for you: well, what did he really say? Did he say "I see legs and a body"; "I see legs or a body"; or, "Is that legs or a body?" and the like. What he said in his statement bears upon the question, but it doesn't say what he said to the police.
932. Assuming in favour of the Crown that he said - and this is what the Crown submits that you should find - he said, "I can see legs and a body", or words having that meaning, the question says to you: how could he possibly have known that unless he had thrown her off the cliff?
933. The submission put against it is this: how could the fact that he had thrown her off the cliff possibly inform him where the body was, or that the body was in a hole with the legs in the air?
934. Refer to Crown's question number 3, if you've made a note of it. The Crown asks you: how could he have known that the legs were sticking up if he hadn't thrown her off the top?
935. What is put against it is, well, if it was a black night, how could he have known by being at the top? Committing a crime doesn't improve your eyesight, or the weather. And there is no evidence that the weather and the visibility were any different between the two times that we're talking about.
936. The deceased went off the cliff, let's say, at 11.30, some time a little before midnight, and the time of the conversation about which this evidence is given took place some time in the wee small hours, a matter of two hours later, maybe more, well before dawn.
937. It would be speculative for you to suppose that there might have been a change in the visibility in between times. So how could the accused's statement of what he saw show that he had thrown the deceased off The Gap?
938. The submission is that he couldn't - either he could see from where he was standing, looking down, talking to Peter Byrne and then to the police, either he could see or he could not. And, if he could see, then he could have seen, of course, when he threw her off The Gap.
939. But the Crown case is not made out in that case - or the Crown argument is not made good. If he couldn't see from the top - if he couldn't see from where he was saying - well, from where he was speaking next to Peter Byrne and next to the police, he could not have seen from where he threw the deceased off The Gap, if that is what he did. And the answer may simply be that he could see; he was describing what he could see, or what he thought he could see.
940. How could he see it? Well, there were lights waving around. You will need to ask yourselves whether the evidence that you could not see anything, even with a police magnalite light with full batteries, can stand against this evidence. It is something for you to consider. You have the submissions on both sides.
941. The Crown says it shows that he knew - he knew the body was in a hole with its feet sticking up, because he had thrown her off the top.
942. The defence says it is an argument that simply does not run: either he could see or he couldn't. If he could, he could see on both occasions; if he couldn't, he couldn't see on either occasion.
943. There is evidence that lights were used sweeping around. Think about that, ladies and gentlemen."
289In the absence of the jury the Crown prosecutor and trial judge shared the following exchange:
"950 CROWN PROSECUTOR: Thank you, your Honour. Your Honour, on what has been identified as the Crown's "bottom line" point, your Honour said, "The answer might simply be that he could see." Your Honour, that is not only contrary to the position that the Crown has taken, but it is contrary to every version that the accused-
HIS HONOUR: Mr Crown, your position is utterly without logic.
CROWN PROSECUTOR: Your Honour, the logic-
HIS HONOUR: There must be an explanation.
CROWN PROSECUTOR: The explanation is this, your Honour: that if the accused threw the deceased head first from the top of The Gap-
HIS HONOUR: He aimed for hole A, did he, or for hole B?
CROWN PROSECUTOR: He may well have assumed she landed head first.
HIS HONOUR: Oh, come on, Mr Crown, I am not putting that. Is there anything else?
CROWN PROSECUTOR: Yes, your Honour. Your Honour said that there were lights waving around.
HIS HONOUR: Yes.
CROWN PROSECUTOR: That was certainly the case when the police were there, particularly once the helicopter and the police rescue were there. But it was not the case, of course, when he was there with Peter Byrne.
HIS HONOUR: So he couldn't see?
CROWN PROSECUTOR: Yes.
HIS HONOUR: And couldn't have known.
CROWN PROSECUTOR: That's his account as well, your Honour, on every version he gives.
HIS HONOUR: That's the problem with this, Mr Crown. With respect, it is an utterly illogical submission you have made and it deserves to be destroyed.
CROWN PROSECUTOR: Your Honour, with respect, we don't accept that.
HIS HONOUR: You don't have to, but you have got it."
290The Crown prosecutor then turned in his address to the evidence of the relationship between Ms Byrne and the applicant. The prosecutor's submission was that the relationship had been deteriorating and that the applicant had become very aggressive and abusive towards Ms Byrne.
291In support of this submission the prosecutor referred to the evidence of the applicant speaking to others about his affection for Ms Byrne. The prosecutor put against this evidence the evidence of Georgiou that in discussions in February or March Ms Byrne was in the gym and told him that things were not going well with the applicant. He said that she suggested that things were getting to a similar position to when the relationship was terminated approximately 12 months earlier. Georgiou said that Ms Byrne said similar pessimistic things about the relationship to him in early April or May 1995.
292The prosecutor referred to the evidence from Ms McVeigh about the alleged incident in the gym on the Friday night before Ms Byrne died. The prosecutor connected this event to Rivkin by referring to the fact that Redding (an associate of Rivkin) and his girlfriend were present at the time. Redding of course denied that he was present on this occasion. The Crown conceded that had Redding's girlfriend been called to give evidence, she too would say that she had witnessed no such event.
293It may be, and I would accept, that an incident such as that described by McVeigh may have occurred but on a different occasion. She was asked to recall the events in 2006 and the denial by Redding, which is plausible, that he was present at the gym on that occasion undermines the reliability of McVeigh's evidence. Furthermore, there is no doubt that on the Friday Ms Byrne was unwell with the flu, making it unlikely that she would have gone to the gym that evening.
294Having raised this incident with the jury, the prosecutor then used it in an entirely impermissible manner. He told the jury that the Crown submission was that:
"This argument must have been something very serious, and it must have had something to do with the accused's employment with Rene Rivkin. That's why Gary Redding was standing next to him. I mean, would you have a rip roaring row with your spouse or partner with one of your fellow employees from your work standing next to you? Of course you wouldn't. Neither would the accused if it was something purely personal. It must have had something to do with Rene Rivkin for Gary Redding to be there."
295This submission was entirely speculative. If an argument did occur it could have been as a consequence of trouble in the relationship, which had nothing to do with the applicant's employment with Rivkin. Redding was a friend of the applicant's. The fact that he was present (if he was) may have had nothing to do with Rivkin. It is plain that the prosecutor introduced the prospect that the event was related to Rivkin in order to support his theory as to the applicant's motive. It was a speculative smear.
296In support of his theory that the relationship between Ms Byrne and the applicant was fracturing the prosecutor then turned to the evidence of Ms Geraldine Howarth, who was a fellow model with Ms Byrne at the Gordon Charles Agency. She said that she had gone to the agency on 5 June 1995 to resign. She said that she saw Ms Byrne, who looked upset and appeared to have been crying. Tanya Zaetta had lunch with Ms Byrne on that day. The prosecutor reminded the jury that she had said that Ms Byrne had said to her that "Gordy and I are having a moment."
297Finally, the prosecutor referred to the occasion on 31 May when according to Mr Byrne his daughter visited him and, while she was with him spoke to the applicant on the telephone. After hanging up she said: "I'll have to go. That was Gordon. He's in a shitty mood."
298The prosecutor made the summary submission to the jury that there were 6 witnesses who said there were problems in the relationship between the applicant and Ms Byrne. He told the jury that they should conclude that Ms Byrne would not put up with a relationship on these terms, particularly as she had come from a very polite, supportive, loving family background. This was the foundation for the proffered motive that the relationship had deteriorated to the point where Ms Byrne wanted to terminate it and, rather than lose her, the applicant killed her.
299The third step in the prosecutor's summation of the Crown case was a submission to the effect that the applicant was under great pressure at the time of Ms Byrne's death. Reference was made to the applicant's expectation of a career with Rivkin and how he believed that employment with Rivkin gave him the prospect of learning how to successfully invest on the stock market. He emphasised the evidence which on the Crown case supported a conclusion that the applicant big noted himself because of his relationship with Rivkin.
300The prosecutor then turned attention to Rivkin. He reminded the jury that the applicant had gone overseas with Rivkin in relation to the Offset Alpine issue and that Rivkin had been upset about the outcome of the home unit transaction and Mr Byrne's involvement in it. He emphasised the evidence that Ms Byrne had told her father that Rivkin was very depressed on one occasion and had said that he did not want to see the applicant at all because of his relationship with Ms Byrne. He also mentioned the evidence from Mr Byrne that his daughter had said to him that Rivkin was trying to drive a wedge between her and the applicant and that Rivkin was worried about the amount she knew about his business affairs and his private life and that Rivkin was depressed and that it was all because of her.
301The prosecutor's submission was that by late March 1995 the situation between Rivkin and the applicant had become so bad that the applicant thought he was not going to get his bonuses, he was not going to get the home unit, and he probably would not even have a job. The prosecutor then made reference to evidence that Ms Byrne had told her father in late March that the applicant had a plan "to get around Rene."
302There was no evidence as to what that suggested plan may have been. Shortly after that alleged conversation the applicant went overseas with Rivkin and, of course, continued in his employment. The prosecutor reminded the jury that the relationship between the applicant and Ms Byrne had previously faltered because of her concern that the applicant did not have a job. He told the jury that by late March to early April the applicant was at risk of losing his employment again. He told the jury that they might think that he feared that if he lost his job he would lose Ms Byrne and, as a consequence, his whole self image with his family and his friends was under threat.
303The prosecutor reminded the jury of the claims which the applicant had apparently made to others about the legitimacy and likelihood of a successful insurance claim in relation to the Offset Alpine fire. The prosecutor said that this information was made available to Mr Byrne, Georgiou and others including "Caroline." However, there was no evidence that Ms Byrne actually knew any of the details of any illegitimate dealings. No doubt Rivkin was troubled by the rumours surrounding his dealings in Offset Alpine and it is plain that a successful insurance claim would have restored the company's cash position. As it happened, Offset Alpine was compensated by the insurer and ASIC dropped the investigation into the Offset Alpine matter without laying any criminal charges.
304The ultimate submission which the prosecutor made was that the applicant "had confidential information about powerful people, including people in government. He had told people things, including Caroline and Tony and Angelo that you might think would have horrified Rene Rivkin if he knew. So Rene Rivkin had every reason to be paranoid about Caroline and Tony."
305The difficulty with this submission is that there was no evidence of any confidential information or that Ms Byrne was aware of any such information about "powerful people." Furthermore, there is nothing to suggest that Rivkin knew that the applicant had told anyone about confidential information relating to such people. The suggestion that Rivkin was upset and that his concern was sufficient to motivate the applicant to kill Ms Byrne was entirely without foundation. The submission should not have been made. The exploitation of public rumour and the use of mere innuendo to compensate for inadequate evidence of motive is not consistent with the obligations of a prosecutor to press the Crown case "to its legitimate strength" by reliance upon credible evidence: per Rand J Boucher v The Queen (1954) 110 CCC 263-275. The prosecutor continued submitting that:
"Rene Rivkin was paranoid in the first place about Tony [Byrne] particularly, but that then he became absolutely - totally paranoid about what information Caroline had about him and his business affairs and his personal affairs and that is what Caroline said to her father."
306It seems that the prosecutor's suggestion of Ms Byrne's knowledge about inappropriate dealings was taken from the evidence of Mr Byrne and Duval. It was brief and, in my opinion, insufficient to support the prosecutor's submission.
307In around March 1994 Ms Byrne and the applicant came over for dinner to Ms Byrne's parents' home. Mr Byrne gave evidence that:
"Caroline went into the kitchen and began to prepare the meal, to take it out of the carton and put it on the plates. Gordon and I walked about two metres away from Caroline into the dining room and Gordon produced a, what I saw was a share price indicator ... about the size of a mobile phone and he said 'Offset Alpine Printing are at $1.37. I've recently bought shares in Offset Alpine. The insurance company is going to pay up. The shares are going to go up in price.' Then in a clear audible voice he said, 'The fire was a set-up.'"
308When asked whether Ms Byrne appeared to be listening to the conversation, Mr Byrne responded, "I looked at Caroline at the end of that conversation and she looked up at me."
309Duval gave evidence of a conversation with Ms Byrne at the City Gym in late 1994 or early 1995, relating to the "business of Rene Rivkin," in particular in relation to a fire and an "insurance claim." He said at that point the applicant came over, asked Ms Byrne to stop talking, then it "got heated" between the applicant and Duval. Ms Byrne walked away. No other details of the actual conversation were given.
310The prosecutor submitted that the applicant was under great stress "where the woman of his dreams was the subject of paranoia by the employer upon which his whole self esteem was based."
311The prosecutor also introduced, as the evidence entitled him to do, the suggestion that there may have been a homosexual relationship between the applicant and Rivkin. I accept that this may have caused Ms Byrne concern.
312The prosecutor then turned to the evidence of the applicant's apparent possessiveness of Ms Byrne. He submitted that the applicant was a "control freak" who oppressed Ms Byrne. The submission which the Crown prosecutor put was that:
"But, ladies and gentlemen, by the time she spoke to Angelo Georgiou, when the accused had become abusive to her, she realised that his attention to her had a very negative side. It was very dark and unwanted and verging on being stalking, and it had taken on a completely different character. You might think that by that stage she had wised up to how unattractive and unwanted that sort of possessiveness really was.
So, ladies and gentlemen, by the time of her death you might think Caroline was well aware of the negative side of this absolutely controlling and possessive behaviour of the accused towards Caroline really was [sic]."
313The evidence could not support this submission. There was evidence that the applicant was possessive of Ms Byrne and there was evidence of arguments between the two. But the evidence could not support the proposition that the applicant was generally abusive or that his behaviour was "dark and unwanted" and verging on stalking as the prosecutor submitted.
314The prosecutor then submitted that the jury should conclude that the relationship between the applicant and Ms Byrne was unravelling. He said:
"That he had become very abusive and threatening; that she was scared; that she didn't know how she was going to get out of the relationship cleanly; and, that things were going from bad to worse.
From his point of view, he stood to lose everything: love, employment, money, future fortune, self esteem, the façade of prestige he had built up with others. His whole life was about to unravel we would submit to you that she must have intimated to him that she wanted out, and it must have been obvious to him that this time it was going to be forever.
We submit that he decided to make one last desparate attempt to woo her back into their relationship, and that's why he made arrangements for her not to be at work on 7 June 1995. When he failed to convince her to stay in their relationship, he killed Caroline rather than losing her and losing everything else in his life."
315I do not accept that there is any significant evidentiary foundation for this submission. There is no doubt that Ms Byrne was reporting depression on the Monday and for that reason went to see her doctor. The evidence is clear that she was troubled about her employment and her future as a model. There is no evidence that she reported any relationship between her depression and problems in her relationship. If this were the case she could be expected to have told Dr Pan about them.
316The evidence supports the conclusion that, at least in part, the cause for Ms Byrne's unhappiness was the difficulty she was experiencing with her job and the loss of the prospect of a full-time modelling career. If her depression was of sufficient intensity for her to feel that she was unable to work it would be an entirely sympathetic act for the applicant to have sought to arrange a medical certificate to excuse her attendance from work. Furthermore, it is completely understandable that both he and Ms Byrne would not have wanted to disclose to June Dally-Watkins that the reason for her absence was depression, particularly if it was due to her employment concerns.
317The prosecutor then turned his attention to where Ms Byrne's body had been found and sought to persuade the jury that it could be satisfied that it was found in hole A. It was submitted that the evidence of Sgt Powderly on this issue should be accepted. I discuss this issue elsewhere. I am not persuaded that Sgt Powderly's evidence is entirely reliable. I do not doubt his credibility but the circumstances in which he changed his description of the location cause me to have serious doubts that he ultimately identified the correct position. It must be remembered that not only did Sgt Powderly say on the 1996 video that Snr Const Camwell was pointing to the exact position where the body was located, but Snr Const Camwell herself assisted in retrieving Ms Byrne on that night. It was not until 2004 that Sgt Powderly said that he had made a mistake in 1996. He says that over his time with the police rescue squad he recovered a number of bodies from the Gap. Retrieving, after 9 years have passed, a memory of the precise events on a dark, windy night with sea spray around would be difficult for any person. By the time he was able to revisit the site, A/Prof Cross had become involved and was questioning whether the correct location had been identified. A/Prof Cross' reasoning for doing so appears to have no foundation other than perhaps out of concern to eliminate the possibility of suicide, thus leaving open a prosecution for murder.
318The prosecutor then turned to examine the evidence as to the means by which Ms Byrne could have ended up in hole A. He submitted that the evidence of A/Prof Cross made plain that Ms Byrne could not have jumped and ended up in that location and accordingly she must have been thrown. The Crown prosecutor said, "the most persuasive evidence that she did not commit suicide is that she could not have committed suicide to end up in hole A. That really is the be all and end all of it." This involved acceptance of A/Prof Cross' evidence, which I have indicated was challenged by Prof Pandy.
319The submission that followed was extraordinary and should never have been made. The prosecutor submitted that Ms Byrne was thrown by the sort of throw that shot putters do:
"where they hold the ball right close to their shoulders and then go round and round and finally throw the ball from the shoulders using not just their arm's strength but their body strength, all their body strength - their upper shoulders, their body, their lower body, even their legs and feet - to propel that shot put out as far as they can. So that is the sort of action that we are talking rather than a spear. But let's call it a spear throw for the purposes of argument."
320This submission was entirely unsupported by any evidence. The evidence of A/Prof Cross described the throw as a spear throw with the applicant (or another person) lifting Ms Byrne above his or her head and throwing Ms Byrne like a spear. The video of the tests which A/Prof Cross conducted did not include an action of throwing anything like that which the prosecutor described. The tests which A/Prof Cross conducted had the thrower holding the woman above his head with his arms apart so as to throw the body using the force of both hands, one near the head and the other near the groin. The suggestion of a shot put action was an invention of the prosecutor during the course of submissions for which there was absolutely no support in the evidence.
321The prosecutor also submitted that the evidence of A/Prof Cross was that a man who could bench press 100 kilograms would have the strength to spear throw a 57-kilogram woman on his own or in combination with someone else.
322The prosecutor then advanced the proposition that in all probability Ms Byrne was unconscious or at least incapacitated when she was thrown off the cliff. However, all the experiments which A/Prof Cross conducted had a co-operative subject being thrown. The experiments did not assist in establishing whether a dead or unconscious person could have been thrown the relevant distance. Although Dr Duflou said that the injuries or lack of them on Ms Byrne's body were consistent with her being unconscious, the evidence from the scientists and physics experts did not support that proposition.
323The prosecutor then suggested that the description of the scream given by the fishermen was inconsistent with Ms Byrne committing suicide. I do not accept that proposition. I have no difficulty with the proposition that someone who has decided to jump may exclaim once they have launched themselves into the air. The evidence of the length of the scream was one or two seconds, about the time it would have taken for her to go from the cliff top to the rocks below. The scream was reported to have diminished in intensity consistent with her falling away from the listener, making it more likely that the person was falling when the scream was emitted.
324The prosecutor's thesis was that the scream occurred at the time Ms Byrne was rendered unconscious and before she was thrown over the edge. To my mind the evidence suggests otherwise.
325The prosecutor submitted that the evidence indicated that the scream was preceded by an hour of argument by a female and two males. This suggestion came from the evidence of Doherty. He then told the jury that "people that commit suicide generally don't argue for an hour beforehand." There was no evidence to support this proposition and for my part I would not accept it. I have no difficulty with the possibility of someone being involved in an intense argument, and then distressed by that event and perhaps surrounding circumstances, committing suicide.
326The prosecutor also submitted that the evidence that Ms Byrne had taken $50 from the bank and purchased a Freddo frog and petrol that afternoon were inconsistent with her intending to commit suicide. Again, I would not accept that as a necessary conclusion. I believe it possible that a number of hours after the purchases had been made she could have resolved to take her own life.
327I have discussed elsewhere the evidence of observations purportedly made of the applicant and Ms Byrne and another person at Watsons Bay in the afternoon and at night on the day she died. Mindful of the inherent difficulties with identification evidence and the problems with the particular evidence in this case I am not persuaded that on either occasion it could be reliably accepted that the applicant or Ms Byrne were observed in the Watsons Bay area. The prosecutor indulged in considerable speculation. He said this:
"Of course Mr Redding has given evidence. Mr Redding has denied being at Watsons Bay on that day, or any other day, either with the accused or Caroline Byrne or with anybody.
However, you should bear in mind this: that at about 3 pm, Mr Jaggard, Mr Michael Jaggard, who was the operator of the Alife restaurant in Stanley Street, East Sydney gave evidence that at about 3 pm he saw the accused arriving at the Alife restaurant with Gary Redding, and the accused spoke to Rene Rivkin who was lunching at the restaurant. Now, I'll come back to that.
I would also ask you to bear in mind that Gary Redding was the man who was standing shoulder to shoulder with the accused just the previous Friday when the accused was berating Caroline. Gary Redding was also a weight lifter at the time.
If the accused had attempted to isolate Caroline that day, to provide him with an opportunity to convince Caroline to stay in their relationship, and if he was doing that because of fears that were held by Rene Rivkin about what Caroline and her father knew about him, and if they had - the accused had failed to convince Caroline to stay in the relationship, that would account for why the accused reported back to Rene Rivkin at the Alilfe restaurant about 3 pm and why Rene Rivkin appeared to be agitated and was throwing arms around when he spoke with the accused."
328This speculative construction of the events by the prosecutor achieved two things. Firstly, he was hinting at the fact that Redding, who he said was a weight lifter, was the second man who the Crown hypothesised was involved in Ms Byrne's death. Secondly, he related the involvement of Rivkin in the events of that day with the speculative motive which the prosecutor had created. Any proper foundation for that motive was entirely lacking. The Crown prosecutor ultimately tells the jury that they may be unable to say who the second man was on that night. However, "so long as you are satisfied that the accused was there, that the accused was party to Caroline Byrne being thrown over the Gap, then he is guilty of her murder, whether or not you can decide who the second man was."
329The Crown prosecutor's submission identified the difficulty. Even if the applicant was present at the time Ms Byrne died and even if she was thrown over, if there was a second man, the role of the applicant in the events is unknown. Furthermore, if there was a second man there is no evidence of an agreement between the applicant and that person and no understanding of the means which may have been used to bring Ms Byrne to her death.
330Doherty was first asked to recall the events of this evening in 1998. I have set out his evidence under Ground 2.
331The prosecutor sought to advance the reliability of Doherty's identification by reminding the jury that his description of what Ms Byrne was doing was said to be similar to that when the accused "cornered and berated" and swore at her at the gym. This comparison seems to my mind to be wholly without foundation. In the event described by McVeigh at the gym Ms Byrne is not reported to have said anything. However, at Watsons Bay Doherty identified a woman who was in the gutter sobbing, slurring her words, arguing back and in his view affected by drugs and alcohol. The description of the two incidents have little in common. Furthermore, the autopsy confirmed the absence of evidence of either alcohol or drugs in Ms Byrne's blood.
332Ultimately, all that Doherty is able to say in relation to the applicant was that after observing him on the "Witness" program he thought that he was similar to the person he saw in the street who emerged from under an awning. He does not identify the applicant as that person.
333The prosecutor sought to explain away Doherty's description of the woman he observed as being affected by drugs or alcohol by saying:
"Of course, he would, because he had seen numerous people in that area who were drunk or affected by drugs having arguments like that. That of course is likely."
334The prosecutor continued:
"That doesn't mean that that woman was actually drugged or drunk. We submit to you that Caroline Byrne at that stage had been subjected to the most concerted attempt by the accused to convince her to stay in her relationship; they were arguing and arguing and arguing and continued to argue until the time of her death. You might think that she had been so harangued in such a vociferous way by the accused that she was just totally and utterly distressed, not wanting to go, not wanting to be there, wanting to be out of the relationship, not knowing how to cleanly end it, as she told Angelo Georgiou, and that is why she was slurring her words and sobbing."
335This submission is almost entirely without foundation. It is a fiction which the prosecutor was not entitled to advance to the jury. The evidence of Doherty was clear that the person he saw was drunk or affected by drugs. There was no evidence that there had been continuous argument during the day or that the source of that argument was that Ms Byrne had on that day said she was to terminate the relationship and the applicant was attempting to convince her to stay.
336The prosecutor then turned his attention to the applicant's account of the relevant events. He told the jury that "the Crown case is that the accused told a tissue of lies about where he was during the course of the day." He raised a number of matters.
337He referred firstly to the applicant's account to the police of the events at about lunchtime. The applicant told the police that he dropped Rivkin and Richardson at the Alife restaurant and went home to see Ms Byrne, but she was so groggy he left and joined his friends Basquali and Samartis at Ditto's restaurant between 1.15 and 1.45 pm. He said he ordered lunch but left without eating it when telephoned by Rivkin, who asked him to pick up Richardson.
338The prosecutor criticised this account which he said "is completely contrary to the evidence of Basquali and Samartis. Basquali says arrangements were made by telephone and it all happened between 12 and 1 pm." The implication is that the jury should accept Basquali's account of events, including the time, but reject the applicant's.
339I accept that there are some anomalies in the applicant's account of these events. However, I do not believe that a recollection of the precise time at which any of these events may have happened has great significance. Recalling one's luncheon arrangements and their precise timing based on ordinary human experience presents difficulties.
340The prosecutor used these times as critical in placing the applicant at Watsons Bay at about 1 pm. I have already expressed my doubt that either Ms Byrne or the applicant were at the Gap at that time. The challenge which the prosecutor made to the applicant's account of the events at about lunchtime does nothing to give weight to the prosecution argument that they were observed in the vicinity at that time.
341I accept that there are other anomalies. The applicant said he was telephoned by Rivkin and directed to pick up Richardson. The telephone record does not record such a call and Richardson denied lunching with Rivkin on that day. The applicant may have been confused about the sequence of those events and falsely recalled picking up Richardson. Richardson apparently frequently lunched with Rivkin. It may also be that the applicant was lying. However, if he was lying it could only be to avoid a conclusion that he was with Ms Byrne at that time. Given that she did not die until 11.30 pm that night, was known to be suffering depression, and was troubled about her working life, it was entirely plausible that she would be at home and that the applicant would make other arrangements for his lunch. On any view the applicant was with his friends at the restaurant for a relatively short period about lunchtime. If he otherwise lied about his movements at this time I do not believe it has significance for the Crown case.
342The telephone record shows a call from the applicant to Basquali at 1.18 pm. The prosecutor said this was when the applicant told Basquali he was not coming back to eat the meal he had ordered. It is of course equally possible that this was a call in which the applicant confirmed that he was on his way to the restaurant. Either theory is speculative.
343The prosecutor next asked the jury to consider the evidence about the applicant and Redding at the Alife restaurant. He accepted that Rivkin dined there on the Wednesday 7 June. Jaggard, who owned the restaurant, said that Rivkin would normally start lunch at 1 pm and that the applicant dropped him off.
344Jaggard said he saw the applicant and Redding arrive at the restaurant at about 3 pm. The prosecutor did not suggest that this was in any way suspicious but said suspicion arose when Jaggard was later approached three times by the applicant and "threatened not to say anything about having been seen at the restaurant that day. And also offered a share deal in the UK if he kept quiet."
345There is no apparent reason to doubt Jaggard's account. However, nor is there any reason why the applicant would "cover his tracks" by seeking to suppress knowledge that he was at the restaurant on that day. The prosecutor extended his submission to include reference to discussion between Redding, Mr George Freris and Jaggard. To my mind, rather than those discussions being relevant to any involvement of the applicant in Ms Byrne's death, they suggest that there may have been other reasons why the relationship between them was fragile. Of course, what the prosecutor was doing was seeking to put into the jury's mind a connection between Rivkin, Redding and the applicant, and the killing of Ms Byrne. There being no reason why the applicant would not want to have been seen with Rivkin at that time on that day, the speculative proposition which the prosecutor was seeking to sustain was untenable.
346The prosecutor then invited the jury to consider the situation with respect to Richardson. This was said to be an "alibi" asserted by the applicant.
347I accept that there is an inconsistency between the account given to the police by the applicant and the evidence of Richardson. The applicant said that he picked Richardson up at the Alife restaurant at between 2.00 and 2.30 pm and took him to the ACP building or to the Rugby League building. Richardson denies this happened.
348It may be that the applicant is lying about the issue or is mistaken. To my mind it is of no consequence. The prosecutor says that the applicant lied to create an alibi against it being asserted that he was with Ms Byrne at the Gap during the afternoon. I am not persuaded that beyond the issue of credit this controversy is of any moment. The prosecutor accepted that the applicant was at the Alife restaurant at 3 pm without Ms Byrne. What matters is whether he was with her and caused her death at 11.30 pm.
349The prosecutor reminded the jury of Jaggard's evidence of threats made to him by the applicant. He said that this was because Jaggard was in a position to "destroy the Richardson alibi." However, the prosecutor also proffered that it may have been because it was believed that Jaggard "had heard his discussion with Rivkin."
350By this submission the prosecutor again linked Rivkin to Ms Byrne's death in a manner entirely unsupported by any evidence. Given Richardson's own denial that he lunched with Rivkin it would seem unlikely that the applicant would have threatened Jaggard so as to have him deny that he was at the restaurant with Redding and Richardson.
351It may be that there was a belief that Jaggard had overheard a conversation which the applicant did not want repeated, but there is nothing to link the threats allegedly made to Jaggard to Ms Byrne's death.
352The prosecutor's next reference was to the issue of Rohypnol. The applicant told police that he went home and found Ms Byrne asleep and wanting to sleep more. He said that he identified and she confirmed that she had been taking Rohypnol tablets which he had left in the bathroom. Cameron, a friend to whom the applicant spoke about the matter, said that the applicant gave her a further tablet at the time.
353The autopsy following Ms Byrne's death did not reveal any Rohypnol in her blood stream, although there was evidence in her urine that she had taken it at some time in the recent past. The prosecutor used this evidence to submit, as he was entitled to do, that the applicant had invented his account of Ms Byrne taking Rohypnol to "enhance his fabricated suicide scenario."
354If the account was invented, it does little to add to the possibility that Ms Byrne committed suicide. It is apparent beyond argument that at the time she was depressed. A fabricated story about Rohypnol was hardly necessary to bolster this suggestion. Furthermore, if he had given her another tablet at lunchtime it would be less likely that she would have aroused herself sufficiently to find her way to the Gap and commit suicide.
355I accept that there are matters which are not adequately resolved and it may be that the applicant fabricated this sequence of events, but I am not persuaded that this issue is of any particular significance to the prosecution case.
356The prosecutor then turned attention to the applicant's account of the events during the evening. He submitted that the entire sequence of events was fabricated. He drew attention to the following:
The fact that Ms Byrne's mobile phone was turned off.
The fact that the applicant, although saying he listened to the messages on the home telephone, did not appear to be aware of a message from Peter Byrne, Ms Byrne's brother.
The fact that when he woke up, the applicant does not say that he attempted to ring Ms Byrne or attempted to telephone home on any later occasion.
The fact that the applicant says that he fell asleep and was apparently not wakened by his pager.
The fact that the applicant's mobile telephone was apparently turned off between about 5.30 pm and 8 pm.
The different accounts the applicant gave of when he woke up varying between 11 pm and 1 am.
The fact that Peter Byrne says that he took a call from the applicant at about 12.30 pm which was after the applicant had supposedly found her car at the Gap and had already spent time searching for her.
357The prosecutor identifies these and other anomalies in the applicant's account. He emphasises them in making the submission that the applicant was in fact with Ms Byrne at the Gap. He further emphasised that it seemed unusual that the applicant would attempt to find Ms Byrne at Bondi or Camp Cove or the Gap on a cold winter's night. Furthermore, although he said he went to the Connaught he did not say that he went into the car park where Ms Byrne usually parked, merely passing outside the building. The prosecutor emphasised the coincidence which the applicant said caused him to look for Ms Byrne at the Gap.
358The prosecutor also placed emphasis on the applicant's account of his behaviour when searching for Ms Byrne at the Gap. He identified the lack of thoroughness in the search and abandoning it to go to the Connaught to pick up Mr Byrne and Peter, a scenario which the prosecutor described as absurd. He also emphasised that he did not attempt to telephone his home to see whether Ms Byrne had returned.
359I accept that there are anomalies and inconsistencies in the accounts which the applicant gave of his movements. His account of falling asleep and when waking panicking and going about a search instead of ringing Ms Byrne or her family to find out where she may have been arouses suspicion. However, a suspicion, even a strong suspicion, is not sufficient to make good the prosecution case.
360The evidence is that when the applicant telephoned Peter Byrne he did not use a mobile phone. The applicant said its battery was flat and he only replaced it early in the morning. Although the prosecutor was inferring that the applicant had for some sinister reason not used his mobile phone I can see no logical reason why this would be. The applicant said that by this time he had been to the Gap, and unless he is in an entirely different location, which was never suggested, he would have had no reason to obscure the fact that he was at the Gap.
361The prosecutor also emphasised the fact that, although the applicant would have had the option of taking a car owned by Rivkin from the car park which was electronically monitored, he said that he chose instead to walk a further distance and take a vehicle from Rivkin's collection in a car park where there was no electronic monitoring. It was submitted that he did this in order to mask the fact that he had previously taken the vehicle rather than having collected it after he had woken up at home. I accept that the applicant's seeking a car from the more distant car park raises suspicion but there may be other explanations for his actions.
362The prosecutor then turned his attention to the fact that during the course of the search by the police for Ms Byrne's body the applicant said that he could identify her and recognised the clothes she was wearing. Const Woods said that the applicant said to him that he knew it was Ms Byrne because he knew what clothing she had. He apparently said she had one pair of joggers, four pairs of tights and one denim jacket. He gave a different account of her clothing when interviewed for the Witness program.
363The prosecutor emphasised the evidence that Ms Byrne had a significant array of clothes, as one would expect of a professional model. It was submitted that the only way the applicant could have known what clothes Ms Byrne was wearing that evening was if he had been with her during the day. There is force in the prosecutor's submission.
364The prosecutor then turned his attention to the fact that when Ms Byrne's car was searched the police did not find anything of significance in it. However, subsequently the applicant was known to have her mobile phone, her watch (which the evidence was "she always wore") and the referral to the psychiatrist. The evidence was that he produced the referral from Ms Byrne's handbag which the prosecutor said was not found by the police when they searched Ms Byrne's car. He also had the two transaction vouchers which evidenced the purchases that Ms Byrne had made that afternoon.
365There is no evidence as to how the applicant came upon these items. The prosecutor suggested that they must have been in the applicant's possession before Ms Byrne died establishing that he was with her that afternoon. There is no doubt that, at least in respect of the transaction vouchers, it may be significant that they were not found in her car. However, given that Ms Byrne's car was at the Gap and the purse was found in it there is no logical reason why the other items were not "innocently" discovered by the applicant. There was no reason for the applicant to have had possession of her watch or, for that matter, the referral to the psychiatrist. If he was intent upon killing her he may have secreted her mobile phone although, as I have indicated, there is an innocuous explanation for her failure to use it that day.
366Early on the Thursday morning the morgue rang Tony Byrne's apartment and indicated that they had found keys on Ms Byrne's body. The evidence was that this came as a shock to the applicant who proceeded to "rush out" to pick them up. The prosecutor submitted that the applicant's shock at Ms Byrne's keys being found was because the applicant had killed Ms Byrne. He said that he stripped her of the items in her possession but missed the keys which explained his surprise when the morgue rang Mr Byrne's apartment.
367This submission was mere speculation. It is difficult to identify any reason why if the applicant intended to kill Ms Byrne it was necessary to "strip" her of any of these items.
368The prosecutor submitted that over the following days the applicant continued his "relentless pursuit to try and convince Tony and Peter that Caroline had committed suicide." He emphasised that on 9 June the applicant had said to Peter and Tony "she has left a trail. She used her card at Paddington and then she has used her card again at Vaucluse, virtually leaving a trail." He said that the only way the applicant knew this was because he was in possession of the relevant vouchers and stressed that the withdrawal slip from the bank does not disclose the bank from which the money was obtained. The prosecutor submitted that the only way in which the applicant could have known that the money came from the Westpac bank at Vaucluse was if he had been present with her or had himself made the withdrawal. It was submitted that the knowledge which the applicant had was completely contrary to his assertion that he had not known what Ms Byrne had been doing throughout that day.
369As the evidence suggests the applicant said that he could establish that Ms Byrne was at Westpac Vaucluse and produced the voucher to establish it, there is at the least an anomaly. The applicant must have known that the voucher did not disclose the branch of the Bank. It would seem likely that he had other reasons for deducing she had obtained money at Vaucluse.
370The prosecutor then turned his attention to the sequence of events on the Tuesday which he said supported his submission that the applicant was attempting to isolate Ms Byrne so that he could try and convince her not to leave their relationship. He said that he had decided to take Ms Byrne out of general circulation the following day.
371I have discussed this issue elsewhere. It may be that there are some inaccuracies in the chronology reflected in the various statements which the applicant made. However, the prosecutor's analysis of these events is nothing more than speculation. What is clear is that Ms Byrne was not at home until sometime around 8 pm. The prosecutor emphasised that in his phone call to Clifford the applicant told a number of lies about Ms Byrne's situation. I accept that he did lie, however as I have previously indicated it is equally possible that he did this out of an endeavour to assist Ms Byrne rather than because he had some purpose of isolating her so that he could in some way spend the day persuading her not to leave the relationship. Whatever inaccuracies there were in the applicant's statements and whatever lies he told to Ms Byrne's employer, they did not lead logically to the conclusion that the applicant had made a deliberate decision to isolate Ms Byrne. There was no basis for the drawing of such an inference. That scenario amounted to nothing more than conjecture.
372The drawing of an inference is not a matter of conjecture. An inference must be logically based, that is, it must bear some logical relationship to the evidence from which it proceeds: see Holloway v McFeeters (1956) 94 CLR 470; Peacock v The King (1911) 13 CLR 619 at 661.
373There are other apparent contradictions in the applicant's account of the events of the Tuesday night, including his reference on one occasion to his understanding that she had been at the Gap. This leads to consideration of Ms Byrne's telephone records which disclosed that she had made two calls from a location registered as "North Shore."
374The prosecutor suggested that the applicant indicated that Ms Byrne may have been at the Gap in order to support the possibility that she had committed suicide. The prosecutor said:
"We submit there are two possibilities: either it was just rhetoric, it was just hot air that he was issuing out to try and convince these people that Caroline had committed suicide, without having any knowledge at all about where she had been on the Tuesday before she came home; or, alternatively, that phone call was made at the Gap on the Tuesday night, because he took her phone to the Gap and made a call, thinking to himself, 'this is going to support my case that she has committed suicide so that I can say that she's been out at the Gap the previous night.' Because there is no other rational explanation: it's either something he's randomly said out of the blue, or it's something that he's calculated he planned in advance. One really can't pick between the two of those."
375The prosecutor's submission is entirely speculative. The applicant explained on one occasion that the suggestion that Ms Byrne's phone calls indicated that she may have been at the Gap came from a suggestion from the police. That may be so. But it was not necessarily sinister that in seeking to reconstruct Ms Byrne's movements he may have suggested that, given the phone calls, she was at the Gap. After all she had to be in a location where the calls would register as "North Shore."
376The prosecutor then discussed issues concerning the applicant's capacity to bench press 100 kilograms, in particular the evidence given by Duval. He also discussed the suggestion that Blanchette may have been involved.
377It was after this summary that the prosecutor asked the jury to consider his fifty questions.