Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Dennis v R [2012] NSWCCA 120
• Hearing dates: 2 March 2012
• Decision date: 08 June 2012
• Before: Macfarlan JA at [1]; Rothman J at [59]; Davies J at [60]

Decision

Appeal dismissed.

• Catchwords: CRIMINAL LAW - appeal - conviction for murder - circumstantial evidence - whether direction required that jury needed to be satisfied beyond reasonable doubt that child suffered fatal injuries within specific time period alleged by the Crown - whether indispensable intermediate fact - whether Shepherd direction necessary; CRIMINAL PRACTICE & PROCEDURE - appeal - conviction for murder - application to adduce new evidence - whether any significant possibility that evidence would have led to acquittal if adduced at trial
• Legislation Cited: Criminal Appeal Rules
• Cases Cited: Aouad and El-Zeyat v R [2011] NSWCCA 61; 207 A Crim R 411; (2011) 2007 A Crim R 411; Burrell v R [2009] NSWCCA 163; 196 A Crim R 199; Davidson v R [2009] NSWCCA 150; 75 NSWLR 150; Domican v The Queen [1992] HCA 13; 173 CLR 555; R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417; Rees v R [2010] NSWCCA 84; 200 A Crim R 83; Shepherd v R [1990] HCA 56; 170 CLR 573; Wood v R [2012] NSWCCA 21
• Category: Principal judgment
• Parties: Matthew Allen James Dennis (Appellant); Regina (Respondent)
• Representation: Counsel: D Dalton SC (Appellant); J Girdham (Respondent); Solicitors: Legal Aid Commission NSW (Appellant); Solicitor for Public Prosecutions (Respondent)
• File Number(s): CCA 2009/5917

Decision under appeal

• Citation: R v Matthew Allen James Dennis [2009] NSWSC 1357
• Date of Decision: 2009-12-04 00:00:00
• Before: Barr AJ
• File Number(s): SC 2009/5917

Judgment

1 MACFARLAN JA: After a trial lasting almost three weeks, the appellant was convicted of the murder of a 23 month old boy referred to in the proceedings as "J". J was the son of the appellant's girlfriend. The Crown's case was that J died as a result of injuries inflicted upon him by the appellant whilst J was in his care in the early hours of Friday 21 March 2008.

2 The appellant's grounds of appeal are as follows:

"1. [The trial judge] failed to direct the jury that they had to find as an indispensable intermediate fact beyond reasonable doubt that the injuries to the child were occasioned to him between 2.00am and 3.30am when J was alone and in the sole care of the accused.

2. His Honour's treatment of the evidence with respect to the Crown contention that the injuries sustained to J were occasioned while J was alone with the appellant between 2.00am and 3.30am was unbalanced and unfair."

3 In addition the appellant sought leave to adduce new evidence on the appeal comprising mobile telephone records of two young women (referred to in the trial as "N" and "E") and evidence that there were three upstairs apartments in the unit block in which J died.

THE EVIDENCE AT THE TRIAL

4 The evidence at the trial that may be relevant to the appellant's grounds of appeal and to his application to adduce new evidence was essentially as follows. The summary is taken largely from the Crown's Summary of Trial which did not conflict with the case put by the appellant on appeal.

Ms Malcolm's evidence

5 At the time of his death, J was living with his mother Ms Malcolm in a unit in Dubbo. There also lived in the unit Ms Malcolm's other child, who was staying elsewhere on the night of J's death, and "T ", a young woman who was studying at a TAFE College. The appellant was Ms Malcolm's boyfriend and he slept at the unit about three nights a week.

6 Early on the evening of 20 March 2008, Ms Malcolm, who was at the unit, and the appellant, who was then elsewhere, exchanged resentful text messages about Ms Malcolm going out that night. At about 11.00 pm Ms Malcolm left the unit, T remaining behind to look after J who was then asleep.

7 Ms Malcolm remained at a hotel until about 3.00 am. Whilst she was there she received an angry text message from the appellant. It was followed by a telephone conversation with him during which he asked her to "come home", the appellant then being at her unit.

8 Ms Malcolm arrived home at about 4.00 am. As she expected, the appellant was there. She did not check on J but the appellant told her that J had fallen over in the shower and hurt himself. On waking up the next morning she found that J did not "look right" and an ambulance was called.

T's evidence

9 T said that she was at the unit when Ms Malcolm left between about 10.30 and 11.00 pm. J was then asleep.

10 After that, two young lady friends of T (E and N) came to visit her at the unit. J was then awake. E and N left after about 30 to 40 minutes. About 20 minutes after they had left, the appellant arrived at the unit. He put J in the shower as J was unsettled. This was something J liked and the appellant apparently thought it might help to settle him. While J was in the shower, T heard a bang like the sound of the shower door banging closed and heard the appellant say: "Are you all right Bubba?" The appellant then brought J out and dressed him. As T prepared to leave the unit J put his arms out as if to indicate that he didn't want T to leave.

11 T was picked up by Mr Boyd, the father of one of her friends, and driven to his home, where her friends were. Mr Boyd then returned her to the unit between 3.00 and 3.30 am. The appellant was asleep on a mattress in the lounge-room and said "Don't turn the lights on because I've just put [J] to sleep". T entered J's room and checked him by the light of her mobile phone. He appeared to be asleep, with his stomach moving up and down. Just before she fell asleep T heard the appellant talking angrily on his phone, asking the person to whom he was speaking (undoubtedly Ms Malcolm) when she was coming home.

12 T woke up the next morning when she heard Ms Malcolm screaming. Later, when the police and ambulance officers were present, the appellant told her that he thought that J must have hit his head in the shower.

E's evidence

13 E gave evidence that she and N visited T at Ms Malcolm's unit on the night of 20 - 21 March 2008. Whilst they were there, T picked J up out of his cot, and E played with him. According to E, at this time J was smiling and happy. She observed no bruises on him. E and N were then picked up by Mr Boyd and driven to his house. About an hour later T arrived, having been picked up by Mr Boyd. E's estimates of how long T stayed at Mr Boyd's house varied from half an hour to an hour, to two to three hours (Transcript p 280; witness statement [36]). Mr Boyd drove her home.

N's evidence

14 N gave evidence that she and E were dropped by Mr Boyd at Ms Malcolm's unit. Whilst they were there, T got J out of bed. J was up and playing when N and E were picked up by Mr Boyd. Mr Boyd later collected T and brought her to his house where she did not stay long before he dropped her home again.

Mr Boyd's evidence

15 Mr Boyd's son was a friend of N, E and T.

16 At about midnight on 20 - 21 March 2008 Mr Boyd drove N and E to T's home, then later picked them up. Whilst doing so he saw a child (clearly J) come outside with T.

17 About an hour after taking N and E back to his home, Mr Boyd collected T from her home and brought her to his place, at her request. He drove T back to Ms Malcolm's unit at 3.30 am. He recalled this specific time because he looked at the clock in his car as he dropped her off.

Mrs Watson's evidence

18 Mrs Watson lived in a unit across the road from Ms Malcolm's unit.

19 In March 2008, Mrs Watson was pregnant and had trouble sleeping. She woke at about 1.45 am on 21 March 2008. As the weather was hot she opened the front door at about 2.00 am and sat in the doorway with a cup of tea. She heard a baby crying. She said that it was "like a sick cry". The cry was coming from the units across the road. The crying continued for about half an hour and was still occurring when she shut the door. Whilst she was sitting in the doorway she caught a glimpse of a "bigger" lady walking into the foyer and going up the stairs. She said that she looked like the girl that regularly went to the units (from the description given, it appears that she was referring to T).

20 Her evidence included the following:

"Q. What time did you shut the door?

A. It would have been between like 2 and 3. It was like I can't, I can't quite remember but it was quite a period of time lapsed when I shut the door.

Q. How long did the crying go on for?

A. Probably about half an hour, probably.

Q. Okay?

A. As far as what I heard. It could have gone longer because I shut the door and went to bed.

Q. I understand. Was the crying still going on when you shut the door?

A. Yes.

Q. Was there any break in the crying, or continuously?

A. It was like a sick cry, like when my children are teething or fluey or sick, it was like just a sick, unhappy cry.

...

Q. Did you see any individual, any people in or around or in any area whilst you were sitting there?

A. Yes, I did.

Q. What did you see?

A. I saw a quite bigger lady walking into the foyer up the stairs.

Q. Walking sorry?

A. Into the foyer of the flats up the stairs.

Q. I'm sorry, I interrupted you, continue?

A. The foyer was quite lit up when someone was in there so you could see pretty much a silhouette of a person. It was somebody, they were dressed up for going out kind of thing and they were going up the stairs.

Q. So where was that individual? Did you say it was a woman?

A. Yes.

Q. Did you say a larger sized woman?

A. Yes.

Q. Where was she when you first saw her?

A. I didn't quite see her in the darkness. I heard like her walking past but I couldn't see her until up to the foyer where it was lit up and you could see.

Q. So you saw her in the foyer?

A. Yes, going up.

Q. Going up. All right?

A. I wasn't quite staring, I just noticed. It was just like a glimpse of somebody going up the stairs.

Q. Are you able to tell us about what time it was when you saw this lady?

A. No, I can't remember, I'm sorry.

Q. Was the crying going on in this period of time?

A. Yes, it still was.

...

Q. Did you see any motorcars in the area at that time?

A. No, no.

Q. Did you hear any?

A. No.

...

Q. You saw a woman entering the foyer of the flats and I assume, correct me if I am wrong, that that observation was for a very short time?

A. Yes, it was a flash, yeah.

Q. She walked from the dark into the lit foyer and then disappeared?

A. Yes" (Transcript pp 66 - 68; 72).

The recorded interview with the appellant

21 The Crown tendered a DVD recording and transcript of a police interview of the appellant.

22 In the interview the appellant said that when he arrived home on the night of 20/21 March 2008, J was up and crying. To attempt to calm him, the appellant put J in the shower. Whilst the appellant was in the kitchen he heard a "bang" and went into the bathroom and found J crying. The appellant then got him out of the shower and dressed him. After about 20 minutes lying on a mattress in the lounge room whilst the appellant watched TV, J fell asleep. The appellant put him in the cot. When the appellant awoke the next morning, J was not moving.

23 The appellant described the bang he claimed to have heard as follows:

"I've heard him fall over before, in there ... and it sounded exactly like that again and ... and that's why I thought, you know, like, he's, oh, he's only had another little fall ... I didn't think anything of it, but I ... he was holding his chin ... and I knew, I thought that he'd hit, hit his chin, I knew, I could see a little bruise comin' up, and yeah, I laid him down ... " (Questions 353 - 8).

The medical evidence

24 Dr Randall, director of the Emergency Department at Dubbo Base Hospital, gave evidence that when J was brought into the hospital at about 10.55 am on 21 March 2008 he showed no signs of life. After unsuccessful attempts to revive him, he was declared deceased.

25 Dr Greenberg, also of Dubbo Base Hospital, confirmed that J showed no signs of life upon arrival at the emergency department. He gave evidence that there was bruising under J's chin, over his left eye and behind both ears, and there were signs of bleeding behind the right ear drum (Transcript 13 October 2009, p 95). CT scans that Dr Greenberg ordered revealed that J's skull was fractured. In Dr Greenberg's experience, injuries of the magnitude suffered by J were usually associated with falls from a "fair" height, such as off a roof or a cliff, or from a car accident. He said, "I have never seen a child fall just from standing that has had a skull fracture like that [referring to J's injuries]" (Transcript 13 October 2009, p 101).

26 Dr Lyons, director of the Newcastle Department of Forensic Medicine, conducted a post-mortem examination of J and was of the view that his injuries had resulted from at least three or four applications of severe blunt force trauma to his head. Dr Lyons observed characteristic patterns within the areas of injury on the right and left side and on the back of J's head. At the unit where J had lived, Dr Lyons observed that the surface of some of the walls had a pattern on them that may well have led to the pattern of skin and soft tissue injuries observed on J.

27 Dr Lyons considered that the injuries that he observed would have each occurred around the same time and would have led to unconsciousness. What he observed was consistent with the injuries being occasioned between 2.00 am and 3.30 am on 21 March 2008. He did not consider that the injuries were consistent with J falling in the shower. An observation at 3.30 am of J apparently asleep but with his stomach moving was consistent with the injuries having been suffered by then but J being unconscious.

The appellant's case

28 The appellant did not give evidence or adduce any other evidence.

GROUND 1: INDISPENSABLE INTERMEDIATE FACT DIRECTION

29 The appellant contended, in reliance on Shepherd v R [1990] HCA 56; 170 CLR 573, that the trial judge should have directed the jury that to convict the appellant it had to find beyond reasonable doubt as "an indispensable intermediate fact" that the injuries to J were occasioned between 2.00 am and 3.30 am when J was in the sole care of the appellant. The appellant submitted that "it was critical in the logical process of reasoning to guilt" that the jury would have to find this (Outline of Submissions [20]).

30 The principles upon which the appellant relied were stated by Dawson J in Shepherd in the following terms:

"... 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 an intermediate fact as 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 a 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 accused 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" (at p 579)

...

"The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts - individual items of evidence - proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.

Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful" (at p 585).

31 These principles were considered in Davidson v R [2009] NSWCCA 150; 75 NSWLR 150. In rejecting the appellant's case that there had been a deficiency in directions given at the trial, Simpson J (with the concurrence of Spigelman CJ and James J) said:

"[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 nonetheless 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.

[75] I do not accept that any of the proposed facts was 'indispensable' within the reasoning of Shepherd. Certainly, the telephone call evidence was very powerful, especially that of 2 March to which I have referred to above. But that does not make it 'indispensable' and, even without that evidence, there was still a case that incriminated the appellant."

32 The principles were further considered in Burrell v R [2009] NSWCCA 163; 196 A Crim R 199. In that case the appellant contended that certain evidence described as the "Pajero evidence" related to an indispensable intermediate fact in the sense described by Dawson J. In rejecting this submission the Court said:

"[133] His Honour's direction was correct. The Crown case was not confined to the Pajero evidence in the sense that it was an indispensable intermediate fact. Although the primary thrust of the Crown case was that the Pajero evidence was the most likely means and time at which Mrs Whelan was abducted, it relied upon all of the circumstances of the case, including circumstances that had no direct link with the Pajero evidence or the other two main bodies of evidence ... ".

33 The same approach was taken by this Court in Rees v R [2010] NSWCCA 84; 200 A Crim R 83 and in Wood v R [2012] NSWCCA 21. In Rees, Beazley JA pointed out that whilst the evidence in question was a strong piece of circumstantial evidence, it was not the only evidence that linked the appellant with the commission of the offences (see [55] and Wood at [555] - [570]).

34 In the present case it was plainly essential that the jury conclude beyond reasonable doubt that the appellant had the opportunity to commit the crime with which he was charged. That was a matter of commonsense about which the trial judge was not required to give a direction separate from his explicit direction that the jury needed to be satisfied beyond reasonable doubt that the appellant murdered J.

35 Contrary to the implication in this ground of appeal and the appellant's submissions, it was not necessary for the jury to find that the appellant had the opportunity to murder J for the whole of the period between 2.00 am and 3.30 am on 21 March 2008. It was critical that it find that the appellant had that opportunity at some stage within that period but it was not necessary for it to find that he had the opportunity for the entirety of the period. Thus, proof that T returned home at 3.30 am, rather than at some other time in the previous hour, was not crucial. There could be no doubt that the appellant was in fact alone with J for at least part of that period. The appellant admitted as much in his interview with the police.

36 It was clearly integral to the jury's task that it find that the injuries to J occurred whilst J was alone with the appellant and not, for example, when J fell in the shower whilst T and the appellant were at home with him, or after T and Ms Malcolm returned home. Such a conclusion was obviously inherent in the jury being satisfied beyond reasonable doubt of the appellant's guilt. The manner in which the trial was conducted and in which the trial judge summed up to it, could not have left the jury in any doubt about this.

37 As Dawson J recognised in the passages from Shepherd quoted in [30] above, separate directions about facts indispensable to the accused's guilt need not be given where the point that would be made by the directions is obvious and covered by general directions as to the need for the jury to be satisfied beyond reasonable doubt of the accused's guilt. That was the position here. This ground of appeal should accordingly be rejected.

GROUND 2: HIS HONOUR'S TREATMENT OF THE EVIDENCE WITH RESPECT TO THE CROWN CONTENTION THAT THE INJURIES SUSTAINED TO J WERE OCCASIONED WHILE J WAS ALONE WITH THE APPELLANT BETWEEN 2.00 AM AND 3.30 AM WAS UNBALANCED AND UNFAIR

38 The appellant first submitted in relation to this ground of appeal that it was inappropriate for the trial judge "to continually challenge the evidence of Ms Watson via the s 165 direction as to identification" in his Summing-Up (Written Submissions dated 29 November 2010 [21]). I reject this submission. His Honour repeated his warning to the jury about the potential dangers of Mrs Watson's identification evidence because that warning was first given immediately prior to an adjournment due to the illness of a juror in circumstances suggesting that that juror may not have been well enough to concentrate sufficiently when the warning was given. The trial judge told the jury that he was "going to back track" for that reason (Summing-Up, 23/10/09, p 33). There was not in my view any unfairness in the course taken by his Honour.

39 The appellant next submitted that to give a balanced treatment of the evidence, the trial judge should have referred to the following matters in his Summing-Up:

(a) The absence of evidence from the Crown of police inquiries that had been made to identify any young woman, other than T, whom Mrs Watson might have seen from across the road and any child, other than the deceased, whom Mrs Watson may have heard crying.

(b) The potential for witnesses, including Mr Boyd, to be mistaken in their estimates of time.

(c) The potentially unreliable nature of the evidence of T, N and E due to their excessive consumption of alcohol on the night of J's death.

40 I do not consider that the absence of reference to these matters rendered the trial judge's Summing-Up "unbalanced and unfair". It is of prime significance in this respect that no relevant complaint was made at the trial. That the experienced counsel who appeared for the appellant apparently did not perceive any relevant lack of balance or unfairness in the Summing-Up is a strong indication that there was none.

41 The appellant adduced evidence from his solicitor that his counsel became ill during the trial and was unable to attend court on the day when the Summing-Up was completed. However most of the Summing-Up was delivered prior to the Court adjourning on Friday 23 October 2009. Counsel was present during the Summing-Up on this and on the previous day when it commenced. He was absent on Monday 26 October 2009 but the Summing-Up was completed soon after the start of the hearing on that day.

42 There were a number of occasions on Friday 23 October 2009 when the appellant's counsel raised issues with the trial judge concerning the Summing-Up. He had ample opportunity then to raise the matters of present complaint which, if there were any foundation for them, related to the Summing-Up delivered on the days when counsel was present. Alternatively, if counsel had had in mind at the Friday adjournment raising further matters at the conclusion of the Summing-Up, he would undoubtedly have communicated them to his solicitor to enable them to be raised in his absence on Monday 26 October 2009.

43 In further response to the submissions referred to in [39] above, I add:

(a) The appellant's counsel did not raise this point in his address at the trial. It was not incumbent upon the trial judge to formulate the argument himself. Even if counsel had put the point in address, it would have been a matter of argument to which the trial judge was not bound to refer in his Summing-Up (Domican v The Queen [1992] HCA 13; 173 CLR 555 at 560 - 1).

(b) There is no general obligation on a trial judge to give a direction concerning the unreliability of estimates of time. In any event, Mr Boyd's evidence was not of an unaided estimate but that he observed the time shown on the clock in his car.

(c) This point was made by the appellant's counsel in his address. Moreover, in his Summing-Up on 22 October 2009, the trial judge observed:

"On the evidence of [E and N], [T] had a lot to drink. [T] herself played down any suggestion that she had much to drink or was affected by alcohol on the night. You heard a long series of submissions about that which I will not repeat, and [counsel for the appellant] made many other criticisms of her. He submitted to you that she was an unreliable witness" (p 23).

In my view there was no unfairness to the appellant in the trial judge saying no more than this and not repeating counsel's reference to E and N also drinking heavily on the night in question.

44 In these circumstances, I discern no good reason to grant leave to the appellant to raise for the first time on appeal the points made in connection with this ground of appeal. As a result, r 4 of the Criminal Appeal Rules precludes him from doing so and this ground of appeal must be rejected.

NEW EVIDENCE SOUGHT TO BE ADDUCED

45 As noted earlier, the appellant sought leave to adduce on appeal two categories of new evidence.

46 The first category comprised mobile telephone records of N and T. It was not suggested that these records were unavailable to the appellant at the time of his trial. The appellant's submissions concerning the records related to a call that the records revealed was made by N to T at 2.49 am on the night in question.

47 The appellant submitted that:

(a) The evidence given at the trial indicated that this call must have been made to T whilst she was being driven home by Mr Boyd.

(b) Because of the shortness of the drive, T must have arrived home before 3.00 am.

(c) Her arrival home at this time was consistent with, and supportive of, Mrs Watson's evidence that some time between 2.00 am and 3.00 am Mrs Watson saw someone who resembled T arrive at the building across the road from her.

(d) The evidence therefore indicated that Mr Boyd's evidence that he dropped T home at about 3.30 am was unreliable.

48 On one level, the precise time at which T returned home is immaterial because, whatever that time may have been, there is no doubt that there was a period of time in which the appellant was alone in the unit with J and had the opportunity to commit the crime of which he was convicted. The appellant's record of interview made this plain.

49 The evidence of Mrs Watson that was of particular significance was that she heard a baby crying at the time that she observed a person resembling T arrive at the building opposite. The appellant contended both at the trial and on appeal that this evidence should be accepted and that it should be inferred that the baby that Mrs Watson heard crying was J and that the person she observed arriving was T, with the result that J must have been alive when T arrived home and the Crown case that the appellant assaulted and killed J whilst J was alone with the appellant had to fail. It is implicit in the jury's verdict finding the appellant guilty of murdering J that it rejected this argument.

50 The telephone record evidence that the appellant seeks leave to adduce on appeal does not bear directly upon the questions of whether Mrs Watson observed T arriving home and whether she heard J crying when that occurred. Rather, it is contended to be indirectly relevant to those issues by supporting Mrs Watson's recollection as to time and contradicting Mr Boyd's evidence of the time at which he dropped T home.

51 Contrary to the appellant's submissions, the evidence given at the trial did not however indicate that the 2.49 am call from N to T must have been made whilst T was being driven home.

52 It should first be noted that T gave evidence that whilst she was at Mr Boyd's home, she made a mobile telephone call to N whom she knew to be in another room in the house with Mr Boyd's son (Transcript 15/10/09, p 242).

53 Secondly, N gave evidence that at one point whilst she was at Mr Boyd's home, she, T and Mr Boyd's son were in the latter's room. T then left the room and shut the door. N gave evidence as to what followed:

"Q. Did you call [T] on the mobile phone after that?

A. I don't remember.

Q. Did you perhaps say this to her, 'Where are you? Do you have the shits with me'?

A. I might of but I don't remember that.

Q. And she answered 'No, I'm just on my way home'. You said, 'Well, I'll ring you later'. Remember that?

A. I don't remember but ...

Q. You wouldn't deny that it [was] possible?

A. Yeah, probably. That is probably what did happen but I don't remember it" (Transcript 16/10/09, p 340 - 341).

54 In light of this evidence, I do not consider that the jury would, or should, have attached any particular significance to evidence from mobile telephone records, if it had been admitted at the trial, that N made a call to T at 2.49 am. As illustrated by T's evidence quoted above, the fact that a call was made by N to T did not necessarily indicate that N and T were not both at Mr Boyd's house and the evidence given by N that I have quoted did not reveal that she had any recollection of the circumstances or contents of that call. The witness statement of N that presumably inspired the cross-examiner's questions was not in evidence.

55 In these circumstances, I do not consider that there is any reasonable prospect that the telephone records, if admitted into evidence at the trial, would have caused the jury to entertain a reasonable doubt about the accused's guilt or would have given rise to a significant possibility that the jury, acting reasonably, would have acquitted the appellant. As a result the appellant should be refused leave to adduce this evidence (see R v Abou-Chabake [2004] NSWCCA 356; 149 A Crim R 417 at [63]; Aouad and El-Zeyat v R [2011] NSWCCA 61 at [303]; 207 A Crim R 411).

56 The other evidence sought to be tendered on appeal is evidence that the building in which Ms Malcolm's unit was situated had only two other upstairs apartments. The appellant contends that this evidence indicates that it was less likely that Mrs Watson saw a person other than T enter the building at the relevant time. However I do not accept that this evidence has the required degree of cogency to permit it to be tendered for the first time on appeal. The appellant did not suggest that the evidence would not have been available to the appellant if the appellant's representatives had thought that evidence on the topic was material and had sought to obtain it. If admitted at the trial it would, in my view, have been no more than one relatively minor piece of arguably relevant evidence amongst the significant body of evidence bearing much more directly upon the reliability of Mrs Watson's evidence. In my view, there is no significant possibility that its availability to the jury at the trial would have led the jury, acting reasonably, to acquit the appellant.

57 As I do not consider that any miscarriage of justice has occurred as a result of the jury not having before it the evidence sought to be tendered for the first time on appeal, leave to tender that evidence should be refused.

ORDERS

58 For the reasons given, I propose that the appeal be dismissed.

59 ROTHMAN J: I agree with Macfarlan JA.

60 DAVIES J: I agree with Macfarlan JA.

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Decision last updated: 08 June 2012