Murder Trial: Court Rejects Specific Jury Direction

In a murder trial, the NSW Supreme Court refused to give the jury a specific direction regarding the authenticity of letters written by the deceased. The court held that such a direction was redundant given the jury's duty to consider all elements of the offence beyond reasonable doubt.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME] (No 4) [2022] NSWSC 1505 Hearing dates: 24 October 2022 Date of orders: 24 October 2022 Decision date: 04 November 2022 Jurisdiction: Common Law Before: [NAME] Decision: I refuse the application to give the jury a [NAME] direction. Catchwords: Application to give the jury a "[NAME]" direction —What constitutes a "link in the chain" as opposed to "a strand in a cable" — Where the Crown relies solely on an intention to kill as the requisite intention for murder — Where the [NAME] wife disappeared in 1982 and her body has not been found — Where the majority of facts relied upon go to establishing death and deliberate act or acts inflicted by the [NAME] as opposed to an intention to kill-where a [NAME] direction may be redundant given that the jury will be directed that the Crown must prove each element of the offence beyond reasonable doubt Legislation Cited: Crimes Act 1900 (NSW) s 18(1)(a) Evidence Act 1995 (NSW) s 65 Cases Cited: D'Agostino v Regina [2019] NSWCCA 259 Davidson v R [2009] NSWCCA 150; (2009) 75 NSWLR 150 Minniti v The Queen (2006) 196 FLR 431 R v Merritt [1999] NSWCCA 29 Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 Category: Procedural rulings Parties: Rex (Crown) [NAME] ([NAME]) Representation: Counsel: [redacted] W [NAME] SC ([NAME]) Solicitors: [redacted] [NAME] ([NAME]) File Number(s): 2019/00146792

Judgment 1. By Indictment dated 26 September 2022, [NAME] ("the [NAME]") was charged that he, on or about 5 June 1982, at [NAME] or elsewhere in the State of New South Wales, did murder [NAME] ("[NAME]"), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The [NAME] pleaded not guilty to the offence.

2. The trial commenced on Monday 26 September 2022 by way of pre-trial argument, and a jury was empanelled on Tuesday 27 September 2022. The Crown case concluded on Friday 21 October 2022. The [NAME] did not give evidence or call evidence.

3. On the morning of 21 October 2022, Mr [NAME] SC, on behalf of the [NAME], filed written submissions in support of an application that I direct the jury that the fact that the "[NAME]" and "Dear Mum and Dad" letters were each written by [NAME] under duress at the direction of the [NAME] is an indispensable intermediate fact requiring a direction in accordance with Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56 ("a [NAME] direction").

4. The Crown resisted the giving of such a direction. Although the Crown acknowledged that if the jury is not satisfied that the [NAME] forced [NAME] to write the letters, the Crown case on murder would be substantially weakened, it is not conceded that this is an indispensable intermediate fact.

5. It was necessary that I decide whether to give such a direction in advance of the commencement of closing addresses. The Crown was afforded time to consider its position and to file submissions in reply. The matter was fully ventilated before me on Monday 24 October 2022, prior to the commencement of the Crown's closing address. In light of the importance of the issue, and the need for certainty before the parties embarked upon their closing addresses, I gave my ruling on the same day. These are the reasons for that ruling.

The Crown Case 1. [NAME] disappeared on 5 June 1982. She has not been seen since. Her body has not been found. The Crown alleges that the [NAME] committed a deliberate act or acts causing [NAME]'s death, and at the time that he committed the act or acts, he did so with an intention to kill her. The issues in the trial include a question of whether she is dead at all; a denial that the [NAME] caused her death by a deliberate act or acts; and a denial that he did so with an intention to kill.

2. At the end of the Crown case, Mr [NAME] SC requested that I leave manslaughter to the jury as an alternative count. The Crown case is a wholly circumstantial one. If the jury finds that the Crown has failed to establish the requisite state of mind, it remains open, on the Crown's circumstantial evidence, to find that the [NAME] caused [NAME]'s death by way of an unlawful and dangerous act. Put another way, I am satisfied that it is open on the evidence for the jury to consider an alternative count of manslaughter. The Crown did not wish to be heard against such a course.

3. As of June 1982, [NAME] resided at [ADDRESS], [NAME] with the [NAME] and their two young children, a daughter who was 6 years old and a son who was nearly 2 years old. The [NAME] was employed as an ambulance officer at [NAME]. There is no real dispute that the [NAME] was a "womaniser" who had multiple casual affairs with various women in [NAME]. [NAME] was aware of at least one of those liaisons.

4. At the time of [NAME]'s disappearance, the [NAME] was in a sexual relationship with [NAME], who, then, resided in Sydney. [NAME] is now deceased. Leave was granted pursuant to s 65 of the Evidence Act to have her evidence read onto the record as follows: "On 24 April 1988, interviewed [NAME], born 23 April 1954, at her home at [ADDRESS], Airds, phone [PHONE], re her relationship with the missing person's husband, [NAME], who is divorced, stated that about six months prior to June 1982 she had separated from her husband and, during the two weeks of the May school holidays 1982, she had holidayed in a caravan with friends on the banks of the Barwon River, [NAME]. It was during this time she met [NAME] in his capacity as an ambulance officer and formed a brief relationship with him. She went out with [NAME] on a number of occasions in his van and on one occasion accompanied him to the [NAME] She had previously been informed by [NAME] that he and [NAME] lead different lives and that she had a boyfriend. On the occasion they attended the RSL, [NAME] pointed out a woman and a man to her in the club and told her that the woman was [NAME] with her male friend. [NAME] is now unable to describe that woman or man. She stated she continued seeing [NAME] for the duration of the holidays and then returned to her home at [ADDRESS], Chullora. Some weeks later, [NAME] phoned her and told her he was coming to Sydney. Towards the end of June 1982, [NAME] arrived at her home and told her that his wife had left him and suggested that he move in with her. She refused this request and, although she went out with him on a number of occasions, she terminated the relationship after two to three weeks and has not seen him since. She said at that time [NAME] was living in a flat at Lakemba. She stated that she had accompanied him to his in‑law's home at Killara during that time and she had also met his children on a number of occasions. Both children appeared to be well cared for, although she was surprised that the older child, [NAME], made no mention at all of her mother. She also stated that [NAME] did not discuss his wife or her disappearance, other than to say she had left him. During the time [NAME] knew him, [NAME] was not a heavy drinker. She stated that when [NAME] arrived in Sydney he was extremely keen to form a serious relationship with her, but she never entertained the idea and terminated the relationship."

1. The [NAME] worked a shift at the [NAME] ambulance station on Saturday 5 June 1982. His shift ended at 5:00pm, and he was at home with [NAME] and the children at about 7:00pm when the children were put to bed. At some stage, he left the house and went to the Imperial Hotel where he stayed for a period of time. At some point later in the evening, he was seen at the [NAME].

2. There is a dispute in the trial as to whether he returned home in the period between 7:00pm and about 11:00pm. The defence case is that he left the house at about 7:00pm. He went to the Imperial Hotel where he stayed for some hours before attending the [NAME]. He returned home at about 11:00pm to find [NAME] missing.

3. The Crown case is that this account is a fabrication. The Crown contends that the [NAME] returned home sometime after 7:00pm and before 11:00pm, and in that window killed [NAME] ("the window of opportunity").

4. Evidence adduced from [NAME] and [NAME] suggests that the [NAME] had returned home at about 11:00pm. [NAME] and [NAME] lived in one of two caravans in the backyard of [ADDRESS]. The [NAME] knocked on their caravan door looking for [NAME]. The Crown case is that the attempt made by the [NAME] to raise the alert and search for [NAME] was a ruse, a performance intended to deflect attention from himself.

5. The last time [NAME] was seen by anyone was on 5 June 1982. Her body has never been found.

6. The Crown relies upon a number of facts which include, but are not limited to, the following: * [NAME] was a loving and devoted mother, and a devoted daughter who had a good relationship with her parents. She was unlikely to leave her children never to communicate with them or her parents again; * There is no evidence of normal life activities. There is no evidence that [NAME] has used her bank account or Medicare health card, renewed her driver's licence, or been sighted or heard from by anyone since 5 June 1982; * [NAME], the town in which she lived with the [NAME] and their two young children, was a particularly isolated town in 1982. There was no public transport leaving town on the weekend. Of particular relevance to this case is that there was no public transport leaving town on Saturday nights; * The [NAME] had a motive to kill his wife because he wanted to have a serious relationship with [NAME]; * The [NAME] had a tendency to inflict intentional violence on his domestic partners; * The [NAME] pawned jewellery that is alleged to have belonged to his wife after she disappeared; * Police located a dress ring buried at [ADDRESS], which has been identified by one witness as belonging to [NAME]. Also located at that site was a metal fragment with a scalpel wrapper, and two facemasks (items the [NAME] would have had access to as an ambulance officer in 1982); * An alleged admission made by the [NAME] regarding having "killed before", and a number of representations made by him from which the Crown invites the jury to infer that he disposed of [NAME]'s body by feeding her to pigs; and * The [NAME] told a number of lies that are said to constitute consciousness of guilt.

1. The Crown case has been conducted on the basis that the [NAME] caused the death of his wife [NAME] by a deliberate act or acts, done with an intention to kill. The Crown opened, and conducted the trial, on this sole basis.

2. The circumstances referred to above, taken as a whole, are capable of establishing that [NAME] is dead, and that the [NAME] caused her death by a deliberate act or acts. The question that arose on this application was as to the facts relied upon to establish the requisite state of mind, namely, an intention to kill.

3. An important fact in the Crown case that goes to establishing beyond reasonable doubt the requisite intention, relates to two letters said to have been written by [NAME] before she disappeared. These letters have been referred to during the trial as the "[NAME]" and "Dear Mum and Dad" letters. In each letter, [NAME] announces that she is leaving her husband and children "for good".

4. The "[NAME]" letter was located by [NAME] on the night of 5 June 1982, and at a time after the [NAME] knocked on the door of a caravan to inform his neighbours that his wife was missing. As they searched the [NAME]'s house for [NAME] found the letter under a sugar bowl on the dining table. The Crown case is that this was staged, the [NAME] having left the note on the table for his neighbour to find.

5. The "Dear Mum and Dad" letter was posted at the Coonamble Post Office in the period between the night of 5 June 1982 and 3:15pm on Monday, 7 June 1982. It is the Crown case that the [NAME] drove to Coonamble and posted the letter himself.

6. Significant reliance is placed upon the inference that the [NAME] forced [NAME] to write the letters. During the course of the Crown's opening address, he said: "You will hear evidence in this trial from a number of experts in relation to the letters. Some of those experts are anticipated to tell you that the handwriting is likely to be [NAME]'s handwriting. One handwriting expert will tell you that the two letters appear to have been more slowly and deliberately written when compared to the reference writing of [NAME], which the expert, I anticipate, will tell you appeared more fluid and written with more speed. By that I mean you will hear evidence at the handwriting expert had access to other letters and writings of [NAME] and that it is anticipated she will give evidence she compared the two letters that are part of your jury folder. Another expert will tell you that the two letters appear to have been written on the same notepad, one after another. In the opinion of that expert with the first letter being written, being the letter described as the "dear [NAME]" letter and the second letter being the letter written to [NAME]'s parents. The Crown case is that the reason the two letters were not written in the opinion of that expert is fluidly as compared to her other compared writing is because she was forced to write those letters by [NAME]. The Crown case is or the Crown says when it says "forced to write" either by being dictated to her to write or to copy something that he had pre-written other the likely mechanisms. The Crown says [NAME] forced her to write the two letters."

1. The Crown relies upon this evidence to demonstrate pre-planning or premeditation on the part of the [NAME], leading to the irresistible inference that at the time he caused [NAME]'s death, he had an intention to kill her.

Submissions

Submissions made on behalf of the [NAME]

1. In support of the contention that it is necessary to give a [NAME] direction to the jury, the [NAME] made the following submissions:

2. Firstly, in a circumstantial case such as the present, the jury may only return a verdict of guilty if it excludes all other reasonable conclusions inconsistent with the guilt of the [NAME]. The truth of the contents of the two letters is a conclusion that is inconsistent with the [NAME]'s innocence. That possibility must be excluded by the Crown. The Crown seeks to do so by tendering evidence to prove the fact that the letters were written under coercion and at the direction of the [NAME], either by way of dictation, or copying the letters from another document.

3. It was submitted that it is necessary that the jury accept the contention that the contents of the letters were not a genuine reflection of [NAME]'s state of mind and a record of what she actually did, before they can convict the [NAME] of murder.

4. Put another way, it was said that the letters are, on their face, an exculpated reversion of events that must be excluded before a jury can return a verdict of guilty.

5. The [NAME] submitted that if the Crown cannot establish the fact that the letters were written under coercion, there would, in effect, be no case to go to the jury, as the Crown would have failed to exclude the possibility that the notes were simply the truth, and, therefore, the possibility that the [NAME] had nothing to do with [NAME]'s disappearance and she had in fact left him and the family "for good".

6. Secondly, the Crown case is that the [NAME] killed [NAME] with an intention to kill. This intention to kill can only be inferred if the jury accepts the Crown's contention as to the provenance of the letters and, inferentially, the premeditation involved in forcing her to write the letters.

7. It was contended that there is no other evidence which could rationally support an inference that the [NAME] had that intention, but for the contention that he forced [NAME] to write the letters. The [NAME] pointed out that the Crown case has been based upon murder by way of an intention to kill. The Crown did not proceed on the basis that the [NAME] had any other state of mind.

8. It is submitted that the Crown not only seeks to disprove the truth of the contents of the letters, but also positively relies upon the circumstances that it contends surround the writing of the letters, in order to prove an essential element of the charge of murder; namely, the requisite intention.

Accordingly, that circumstance is an indispensable intermediate fact.

Submissions made on behalf of the Crown 1. The Crown submitted there are a number of facts relied upon to establish, circumstantially, that the [NAME] had the requisite state of mind; namely, an intention to kill. The contention that he forced [NAME] to write the two letters is only one of a number of facts.

2. The Crown submitted the following facts are also relied upon to establish an intention to kill:

1. An admission the [NAME] made to [NAME]: "I've killed before - it was not a nice feeling". This representation is said to be telling of having killed with the requisite intention, particularly when considered in the context of the conversation in which Ms [NAME] was telling the [NAME] about her abusive husband and said she wished that somebody would kill him; and 2. The fact that the [NAME] had a motive to kill his wife; he was having an affair with [NAME] and wanted to pursue a serious relationship with her.

1. During the course of oral argument, Mr [NAME] SC expanded his application requesting a [NAME] direction in relation to motive as well as the inference contended for by the Crown, that the letters were written under duress.

Legal principles 1. The starting point for the discussion of these issues is the judgment of the High Court in [NAME] v The Queen. I extract a well-known passage from the judgment of Dawson J which appears at 579, where his Honour said: "It may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify and intermediate fact is indispensable, it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where - to use the metaphor referred to by Wigmore On Evidence, Vol 9 (Chadbourn Rev. 1981) par 2497 pp 412-414- the evidence consists of strands in the cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the [NAME] must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence."

1. It is well established that a circumstantial case cannot be considered in a piecemeal fashion. In a "strands in a cable" circumstantial case, none of the facts or circumstances from which the jury is invited to draw inferences need to be established beyond reasonable doubt. This is because none of those facts are indispensable links in a chain of reasoning towards an inference of guilt. As was observed by N [NAME] J in D'Agostino v Regina [2019] NSWCCA 259 at [62]: "as the metaphor suggests, if a cable is made of many strands and one or more strands break, the cable may be weakened but it is not broken."

2. On the other hand, in a "links in a chain case" if one link breaks, then the chain is broken. There is no settled test for determining what constitutes an indispensable intermediate fact. In some cases, it is not easy to pin down whether a particular fact is to be categorised as a link in the chain as distinct from a strand in a cable. This conundrum was referred to by Sully J (as his Honour then was) in Minniti v The Queen (2006) 196 FLR 431 at 445; [2006] NSWCCA 30 at [38]-[39]: "What continues is a difficult concept, and a concept unexplored in any decision to which this Court was referred in the present case, is the concept, or principle, by which a trial judge can determine with a proper professional confidence whether he [or she] has on his hands a case calling for "links in a chain" directions; or, rather, a case calling for "strands in a cable" directions."

1. That this conundrum is a real one and is illustrated by the reasoning in R v Merritt [1999] NSWCCA 29 where it is said (at [69]): "It is important not to be carried away by the power of metaphors but, in the context of this case, we think that whilst it is possible to consider this concatenation of facts strands in the cable, it was also possible, quite reasonably, to consider one or more of them as links in a chain, that is to say indispensable to a conclusion of guilt."

1. There is some guidance provided in Davidson v R [2009] NSWCCA 150, where Spigelman CJ (as his Honour then was), referred to the case of [NAME] in illustrating that where there is a paucity of evidence (as there was in that case) only to intermediate facts, it may be neither "unnecessary" nor "confusing" to give a [NAME] direction. The prospect of confusion is a relevant consideration for the purpose of determining whether such a direction should be given to a jury, particularly where in the given case there are numerous separate facts of varying degrees of probative force relied upon.

2. A further relevant consideration is whether giving a [NAME] direction is redundant in light of the fact the jury will be directed that it cannot return a guilty verdict unless the Crown has excluded all reasonable hypotheses consistent with innocence.

3. The most useful guidance that I have been able to find is that provided by Simpson J (as her Honour then was) in R v Davidson (2009) 75 NSWLR 150 at [74]: "Whether a fact on which the Crown relies as part of a circumstantial case is or is not "indispensable" may be tested by asking whether, in the absence of evidence of that fact, there would none the less be a case to go to the jury. If the answer is in the affirmative, even if the Crown case is weakened, even considerably, the fact is not "indispensable". Where the answer is in the negative, the fact is "indispensable" and the jury should be directed accordingly".

Should a [NAME] direction be given? 1. With these principles in mind, I turn to consider the application for a [NAME] direction. Many of the facts relied upon by the Crown, taken together, are capable of establishing that [NAME] is dead, and that her death was caused by a deliberate act or acts of the [NAME].

2. I am not persuaded that the admission to [NAME] is probative of the [NAME] having caused [NAME]'s death with an intention to kill her, as opposed to the [NAME] having caused [NAME]'s death by way of an unlawful and dangerous act. If the jury accepts that the representation was made and was truthful, it is no more than admission by him that he has killed someone. There is nothing about his representations, or the context in which they were made, which demonstrates that the act causing death involved an intention to kill.

3. Although the motive relied upon is arguably unconvincing, taken at its highest it is capable of establishing the requisite state of mind. In support of the motive the Crown relies upon, there are a number of circumstances. Those circumstances include, but are not limited to, the following: * That the [NAME] (admittedly) had an affair with [NAME]; * The rapid speed with which the [NAME] transferred to [NAME]; * That the [NAME] transferred to [NAME] and not closer to where his circle of support was located around Hornsby; * That the [NAME] told his daughter she would have a new step mother and step siblings some 15 days after [NAME] was last seen; * The [NAME] having travelled some 1600 km round-trip to spend time with [NAME] on [NAME]'s 31st birthday on 25 May 1982; and * [NAME]'s evidence of the [NAME] arriving in Sydney towards the end of June and being "extremely keen to form a serious relationship".

1. What weight is afforded the motive is a matter entirely for the jury. I accept that, absent the Crown proving the fact that the [NAME] coerced [NAME] to write the two letters, motive is another aspect of the evidence available to the Crown to establish the case for murder, albeit leaving a considerably weakened Crown case for murder.

2. Ultimately, I am not persuaded that a [NAME] direction should be given to the jury in relation to motive and/or the circumstance that each letter was written under duress or at the direction of the [NAME]. It seems to me that giving such a direction is redundant in circumstances where I will clearly identify the circumstances relied upon by the Crown to establish the requisite state of mind, together with a clear direction that the Crown must prove the element of intention to kill beyond reasonable doubt.

3.

Accordingly, I refuse the application to give the jury a [NAME] direction. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 November 2022