Supreme Court New South Wales

• Medium Neutral Citation: FRIEND, Catherine Application under Part 7 Crimes (Appeal and Review) Act 2001 [2013] NSWSC 1475
• Hearing dates: In chambers on the papers
• Decision date: 06 September 2013
• Jurisdiction: Common Law - Criminal
• Before: Campbell J

Decision

Application under Part 7 Crimes (Appeal and Review) Act 2001 (NSW) refused

• Catchwords: CRIMINAL LAW - appeal - application for review of conviction for murder under Part 7 Crimes (Appeal and Review) Act 2001 (NSW)
• Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW); Evidence Act 1995 (NSW)
• Cases Cited: Application of Peter James Holland under s. 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251; Chamberlain v The Queen (No. 2) (1984) 153 CLR 521; Clark v Ryan (1960) 103 CLR 486; Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588; Fox v Percy [2003] HCA 22; 214 CLR 118; Friend v Regina [2007] NSWCCA 41; MA v R [2013] VSCA 20; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; Mallard v R (2005) 224 CLR 125; R v Hillier [2007] HCA 13; 228 CLR 618; Shepherd v The Queen [1990] HCA 56; 170 CLR 573; Varley v Attorney General (NSW) (1987) 8 NSWLR 30
• Category: Principal judgment
• Parties: Catherine Margaret Friend
• Representation: Counsel: BW Walker SC (Applicant); DU Arnott SC (Crown); Solicitors: Morelaw Solicitors (Applicant); IV Knight - Crown Solicitor (Crown)
• File Number(s): N/A

Judgment

1 The applicant, Catherine Margaret Friend, was convicted by a jury of the murder of her de-facto husband Jason Friend ("the deceased"). The deceased died from a single gunshot to the back of his head whilst in bed at his home on 18 January 2002.

2 The Crown case against the applicant, as it was summarised by Sully J on appeal, was that she had been at the time of the killing, present in the premises within which the killing took place; and she had been there aiding and abetting the killer. An appeal against her conviction to the Court of Criminal Appeal was dismissed: Friend v Regina [2007] NSWCCA 41. Special Leave to Appeal to the High Court of Australia was refused: [2007] HCA Trans 489.

3 By application dated 17 June 2011 the applicant seeks an inquiry into her conviction pursuant to ss75 and 78 Crimes (Appeal and Review) Act 2001 (NSW) ("the Act").

Legal principles

4 Section 75, which empowers this Court to consider applications of this type, is in the following terms:

(1) The jurisdiction of the Supreme Court under this Part is to be exercised by the Chief Justice or by a Judge of the Supreme Court who is authorised by the Chief Justice to exercise that jurisdiction.

(2) References in this Part to the Supreme Court are to be construed accordingly.

The procedure for making such applications is contained in section 78:

(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

(2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.

That section is to be read in conjunction with section 79 which provides the following:

(1) After considering an application under section 78 or on its own motion:

(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or

(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.

(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.

(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if:

(a) it appears that the matter:

(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or

(ii) has previously been dealt with under this Part or under the previous review provisions, or

(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or

(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and

(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.

(3A) The Supreme Court may defer consideration of an application under section 78 if:

(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or

(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or

(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.

(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application.

(5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application).

5 In Application of Peter James Holland under s. 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 Johnson J at [5] - [11] set out the principles governing these applications in the following terms:

[5] Part 7 Crimes (Appeal and Review) Act 2001 has its origins in a legislative scheme which was an innovation in New South Wales - it is remedial legislation designed to overcome injustices that sometimes arise in the course of the administration of criminal justice: Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (2006) 66 NSWLR 151 at 154 [5], 155 [8]. An application under s 78 does not involve a judicial proceeding: s 79(4). In determining such an application, the Court performs an administrative act: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-50; Eastman v Director of Public Prosecutions [2003] 214 CLR 318 at 362 [124].

[6] The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s 79(2). With respect to repealed s 475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s 475 and its replacement by the provisions now contained in s 79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18].

[7] Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].

[8] There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988 unreported at p 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at p 3); Application of Dunn [2005] NSWSC 857 at [9].

Some Other Features of the Jurisdiction

[9] The procedure under s 78 is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted: Application of Dunn at [9]; Application of Milat (2005) 157 A Crim R 565 at 574 [26]. Nor is it an opportunity, in a sense, to run the trial again on paper, with the ultimate submission that acquittal should result.

[10] The jurisdiction which a judge is exercising under Pt 7 Crimes (Appeal and Review) Act 2001 is an administrative function which may be activated when the criminal justice system has run its course following trial and appeal and, in almost every case, where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence. The powers available under s 79 are limited to the direction of an inquiry or referral of the case to the Court of Criminal Appeal. They do not extend to a power to quash convictions or direct acquittals (as the Applicant sought in this case).

[11] The nature of the jurisdiction under Pt 7 involves some flexibility in the material which may be placed before a judge in support of an application for an order directing an inquiry or referring the case to the Court of Criminal Appeal. To invoke the fresh evidence rule at the ss 78-79 stage (as the Crown submissions of 30 November 2006 suggested by reference to R v Ion (1996) 89 A Crim R 81 at 93-94) does not sit well with the function being performed. In decisions concerning applications under s 475, it was observed that the fresh evidence rule had no application: Application of Esposito at p 2; Application of Visser at p 3.

Background

6 In support of the application the applicant provided written submissions prepared by her counsel, Bret Walker SC, dated 17th June 2011, and received by the Court on 7 July 2011. The Crown in reply provided written submissions dated 13 September 2011. A further response to those submissions was filed on behalf of the applicant on 21 November 2011.

7 The ground of the application is that further evidence has become available subsequent to the applicant's conviction - "four groups of evidence that were available but not produced at the applicant's trial and one group of evidence that was not [then] available" (application at [2]) - which should give rise to the requisite unease or sense of disquiet about the applicant's conviction in accordance with the test propounded in Varley v Attorney General (at [4] above).

Facts

8 These facts are derived from the judgment of the Court of Criminal Appeal. The applicant shared a home with the deceased, her three children (then aged 1, 3 and 6 years), and two dogs. The couple had been in a relationship for approximately four years.

9 At approximately midnight on 18 January 2002, the deceased was, as I have said above, shot dead in his home. He was in the bed he normally shared with the applicant. The applicant says she was sleeping in the lounge room of the house with her youngest child nearby, while the other two children were asleep in another room in the house.

10 The applicant said that upon hearing the noise of the gunshot she awoke, believing it to be the sound of a motor car. The applicant said that she did not find the deceased's body until the following morning.

11 A neighbour Mr Dupon made a statement to the police on 18 January 2002. He said that he was lying in bed trying to get to sleep when he heard a loud bang and got up to investigate. Like most witnesses he did not identify the bang as a gunshot. He checked the back and front of his house. He said that about fifteen minutes later he noticed a light being switched on in the applicant's house, which he says was keeping him awake, and which stayed on for approximately 20 minutes. He was of the opinion that the noise was such that it would have woken up persons in the applicant's house.

12 Mr Dupon gave a second statement, in which he said that the applicant came to his home the night after the shooting, at which time he asked the applicant about whether she had heard the sound of what was now known to be a shot the night before. He stated that the applicant responded by saying she had heard the noise, but when she had tried to check on the deceased she had been prevented from doing so by a barricade across the door to his bedroom.

13 Mr Dupon made a third statement on 18 March 2004. He said that after speaking with lawyers preparing the Crown case and reviewing his earlier statements he had realised a piece of information which he recalled, had not been included in his earlier statements. He says that shortly after completing the check of his property and car after hearing the loud noise, he went to his kitchen to get a drink of water and heard the sound of two voices, one male and one female, emanating from the courtyard of the applicant's house. He says he did not recognise the male voice but clearly recognised the female voice as that of the applicant. He says he recalls the female voice saying "shut up", which he presumed was directed towards the applicant's dogs, a not uncommon occurrence on his evidence.

14 In his fourth and last statement to the police of 19 March 2004, Mr Dupon clarified that the voices he overheard sounded "mumbled like they were talking quieter than you would normally speak". He affirmed that the female voice belonged to the applicant and reiterated his belief that he had told the police this information at the time he gave his earlier statements.

15 It is not the Crown case that the applicant herself fired the lethal shot. The primary Crown case was that the applicant was in a joint enterprise with a co-accused (I will refer to this person as "the co-accused"). The applicant commenced a relationship with the co-accused during a separation from the deceased about six months prior to his death. She had resumed cohabitation with the deceased and there was an issue at trial whether the relationship with the co-accused was then over.

16 The case against the co-accused was that he fired the lethal shot. As stated at the outset, the case against the applicant was that she had been, at the time of the killing, present in the premises within which the killing took place, assisting the co-accused. The co-accused was tried jointly with the applicant, but the jury could not agree upon a verdict in respect of him. He was tried for a second time but again the jury was unable to agree upon a verdict.

17 The alternative Crown case was that the applicant assisted the person who fired the shot, whether or not it was the co-accused.

18 The case against the applicant was entirely circumstantial, relying on the following matters (Crown's Court of Criminal Appeal written submissions at [57], at [19] of CCA judgment):

(a) At the time of the murder the appellant and the deceased, although living together, were in a fractured relationship;

(b) The extreme unlikelihood that an intruder would enter the house to murder the deceased knowing that it was likely that the appellant and her children were inside and would be a problem in one way or other. The house was a small one with relatively flimsy walls and had hard, tiled floors from the front door to the main bedroom door. There were also two dogs;

(c) The difficulty of a gunman getting inside the house without the complicity of the appellant;

(d) The appellant separating herself from the deceased on the night in question, through the manipulation of the child Georgia - sleeping in the lounge room;

(e) Given the enormous noise the shotgun must have made her explanation relating it to a car outside was implausible. In any event, the shot came from the back of the house not out from the street;

(f) The evidence of Mr. Dupon that he heard the appellant talking to a man in the courtyard. This indicated that what the appellant said about the events were false and that she was in league with the intruder;

(g) How the morning unravelled. Her conversations with Mr. Dupon. The many inconsistencies in her statements to police, officials and other witnesses;

(h) The appellant's description of what she did that morning did not adequately fill the 38 minutes from 6.30 a.m. (when the deceased was supposed to wake up) and 7.08 a.m. (when she eventually saw that he was dead and telephoned her mother);

(i) Before making the triple 000 call at 7.08 a.m, there was first of all the false suggestion of a suicide;

(j) Actions of the appellant, whilst to some degree explained by shock, when all added together presented a picture of someone setting about creating a false scenario and organising support for herself when police arrived: telephoning for the support of her mother and good friend before ringing 000;

(k) She told Snr. Constable Turner that upon hearing the noise she turned on the outside light to investigate and yet Mr. Dupon did not see the light turned on;

(l) Evidence from Mr. Dupon and his partner that the appellant told them she tried to get into the deceased's room at the time she heard the shot but his door was barricaded. She also told them the intruder had taken the deceased's keys and wallet although there was no evidence of that;

(m) Evidence from Sgt. Hamshere and Dr. Pailthorpe that the flyscreen to the deceased's bedroom was cut from the inside. The Crown case was that the appellant did this to permit the intruder to come inside that way or to make it look as though he entered that way to hide the fact that the intruder entered by some other way that might implicate the appellant;

(n) It was open to conclude that the appellant (sic) it was an unguarded moment when she told the real estate agent concerning the flyscreens, "I noticed them two weeks ago"; and her explanation in evidence was unsatisfactory

(o) Indications that she was not overly distressed by the deceased's death

19 The Crown said all of these fifteen circumstances were established by the evidence and supported guilt beyond reasonable doubt as the only rational inference to be drawn.

20 The applicant was convicted of murder and sentenced to a substantial term of imprisonment.

Legal principles as to proof of guilt

21 In cases which are wholly circumstantial it is customary to amplify the rule that the prosecution must prove its case beyond reasonable doubt by emphasising that "guilt should not only be a rational inference but should be the only rational inference that can be drawn from the circumstances": Shepherd v The Queen [1990] HCA 56; 170 CLR 573 at 578 per Dawson J. It is also apt to bear in mind that in considering a circumstantial evidence case it is not the individual circumstances that need to be considered, but the combination and totality of the circumstances taken together. A jury can draw an inference of guilt from a combination of facts, none of which alone would support that inference: Chamberlain v The Queen (No. 2) (1984) 153 CLR 521 at 536. To express the same idea another way, "a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances": R v Hillier [2007] HCA 13; 228 CLR 618 at [46].

22 It is a corollary of this rule, if there is an inference consistent with innocence reasonably open the accused is entitled to be acquitted as of right. But "[i]t is of critical importance to recognise... that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence": Hillier at [46]. Moreover, by reference to Chamberlain (No 2), Gummow, Hayne and Crennan JJ said at [48]:

Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with innocence of the accused. But... a circumstantial case [is not] to be considered piecemeal.

23 Finally, in Shepherd's case, Dawson J said at 579-580:

As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact - every piece of evidence - relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.

The reasons of the Court of Criminal Appeal

24 The applicant appealed her conviction in the Court of Criminal Appeal on the following grounds:

(1) The jury's verdict was unreasonable and inconsistent with the evidence.

(2) His Honour erred in admitting into evidence the previous consistent statements of the witness Dupon.

(3) His Honour erred in not giving a 'Shepherd' direction (Shepherd v The Queen (1990) 170 CLR 573) in relation to the evidence of Mr. Dupon, to the effect that the jury would have to be satisfied beyond reasonable doubt of his evidence before the jury could return a verdict of guilty.

(4) His Honour erred in not ordering that the appellant be tried separately from her co-accused.

(5) His Honour erred in directing the jury that 'there may have been witnesses in this case, for all we know, who had a very adverse view about the accused'.

25 As I have said, the appeal was dismissed. In the course of giving his reasons, Sully J (with whom Spigelman CJ and Hislop J agreed) gave an overview of the crime scene and of the Crown case from which the above summary is derived before going on to address each ground individually.

26 After closely reviewing the evidence and the arguments relating to each of the Crown's fifteen circumstances, Sully JA expressed the following conclusion at [105] - [106]:

[105] It now becomes necessary for this Court to step back, as it were, from the foregoing discussion of each of the individual items put forward by the Crown in support of its circumstantial case; and to consider whether it was reasonably open to the jury to find, upon the whole of that case, that the appellant was guilty of murder.

[106] In my opinion it was reasonably open to the jury to conclude that the considerations which I have discussed in connection with the items (b) (c) and (l), when viewed overall, pointed very strongly to the complicity of the appellant in the murder of the deceased. It was open to the jury, in my opinion, to reject the appellant's evidence flatly denying that she had had anything to do with the killing of the deceased. Once that position was reached, then it was, in my opinion, open to the jury to take the view that the evidence of motive, with all its weaknesses as I have previously herein discussed them, added at least something of weight to the incrementally strengthening circumstantial Crown case. It was, in my opinion, then reasonably open to the jury to take the view, by what I might describe as a process of incremental reasoning, that all of the evidence which they had heard about the fly-screens was either a red herring, as the Crown had contended in address; or was insufficient to establish that the killer, whoever he might have been, had been an intruder who had both entered and exited from the bedroom through the cut flap of the relevant fly-screen, and acting throughout independently of any advice or assistance given by the appellant.

The applicant's argument

27 With respect, I accept that learned senior counsel for the applicant has accurately analysed the conclusions of Sully J in the following terms (applicant's submissions at p4 [10]-[11]):

10. The rationale behind the Court of Criminal Appeal's decision can effectively be reduced to three primary conclusions that effectively upheld the applicant's conviction and which the new evidence now destabilises. These are:

1. The extreme unlikelihood that an intruder would enter the house to murder the deceased knowing that it was likely that the appellant and her children were inside and would be a problem in one way or other. The house was a small one with relatively flimsy walls and had hard, tiled floors from the front door to the main bedroom door. There were also two dogs [item (b), para 19, CCA judgment];

2. The difficulty of a gunman getting inside the house without the complicity of the appellant [item (c), para 19, CCA judgment];

3. Evidence from Mr. Dupon and his partner that the appellant told them she tried to get into the deceased's room at the time she heard the shot but his door was barricaded. She also told them the intruder had taken the deceased's keys and wallet although there was no evidence of that [item (1), para 19, CCA judgment].

11. It is also possible that His Honour intended to include item (f) from CCA judgment amongst the above matters as the item relates to the evidence of Dupon together with item (1). Item (f) outlined the following matter:

(f) The evidence of Mr. Dupon that he heard the appellant talking to a man in the courtyard.

28 However, it should not be overlooked that the jury had the advantage of seeing and hearing the applicant give evidence. It is not irrelevant to Sully J's conclusions that the jury must have rejected the applicant's evidence: Hillier at 639 [50]. The jury's verdict revealed that they were "positively persuaded on a consideration of all of the evidence (including [hers])" that she was not telling the truth when she denied any involvement in the murder.

The applicant's fresh evidence

The points concerning Mr Dupon's evidence

29 The applicant's first two points concern Mr Dupon's evidence and it is convenient to deal with them together. I accept the argument that the acceptance by the jury of Mr Dupon's evidence about hearing the whispered conversation in the courtyard in the aftermath of the shot must have been critical to their determination that the applicant was guilty. It is clearly a critical aspect of the Crown case theory that two people, a male and female, were present near the scene of the crime in its immediate aftermath; after all, no case was ever made against the applicant that she pulled the trigger.

30 Two points are made on behalf of the applicant about this. First, there is now an availability for expert evidence to be led to demonstrate that Mr Dupon's evidence was not credible in the sense of being an unreliable reconstruction. Secondly, expert and lay evidence has been obtained to demonstrate that the applicant's debarked poodle, Brodie, emits a low husky or raspy noise like a guttural whisper.

31 Section 108C creates an exception to the exclusionary credibility rule established by s102 Evidence Act 1995 (NSW). It is in the following terms:

(1) The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if:

(a) the person has specialised knowledge based on the person's training, study or experience, and

(b) the evidence is evidence of an opinion of the person that:

(i) is wholly or substantially based on that knowledge, and

(ii) could substantially affect the assessment of the credibility of the witness, and

(c) the court gives leave to adduce the evidence.

(2) To avoid doubt, and without limiting subsection (1):

(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse), and

(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following:

(i) the development and behaviour of children generally,

(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

32 The text of the provision does not provide much guidance as to its meaning and operation. Clearly, paragraph (a) engages the provisions of s79 of the Act. From this it is plain that it is providing for the admission of expert evidence - properly so called - only, within the usual constraints which attend the admission of evidence in that category: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588.

33 Bearing these constraints in mind, it may be said that the enactment of the provision was a response to judicial observations like those, albeit in a civil case, of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; 214 CLR 118 at 129 [31]:

Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical [footnote omitted].

34 The significance of the requirement for leave should not be overlooked. Clearly leave would not be granted unless the court is satisfied the experts opinion could substantially affect the assessment of the credibility of the particular witness concerned. In this regard, it may be necessary to show that the relevant field of specialised knowledge adds value to what ordinary adults would understand about the fallibility of human memory and the means by which its reliability may ordinarily be tested.

35 The Victorian Court of Appeal in MA v R [2013] VSCA 20 considered s108C of the Victorian Uniform Evidence Law, which is materially similar to the NSW provision. In the course of finding that general opinion evidence concerning how a child may react to sexual abuse was admissible, Redlich and Whelan JJA at [100] expressed the view that:

The occasion should be relatively rare where an expert should be invited to express an opinion as to the actual behaviour of the victim... and whether it advanced the probabilities of a fact in issue. Where a party seeks to have an expert go so far, the obligation of the trial judge under s 137 of the Evidence Act to exclude evidence if its probative value was outweighed by its prejudice may assume greater significance.

36 I acknowledge the obvious; in some circumstances the expert evidence may be admissible to bolster a witness's credibility. But that is not relevant here.

37 Given the administrative nature of the task that I am required to undertake I think it appropriate for me to put the question of leave to one side, as it is clear from his qualifications and curriculum vitae that Dr Ian Coyle is an expert psychologist qualified to speak about the workings of the mind including memory. Having said this, it must be borne in mind that the primary function of the expert is to impart so much of his or her branch of specialised knowledge as will equip the tribunal of fact with relevant tools necessary to decide the case: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305. However to the extent to which Dr Coyle has expressed matters within the ken of ordinary folk, reflecting upon issues like delayed reporting or prior inconsistencies, I would regard his evidence as not wholly or substantially based upon his specialised knowledge: s79(1) Evidence Act; Clark v Ryan (1960) 103 CLR 486. Ordinary members of the community well understand the significance of such matters.

38 Leaving aside what Dr Coyle says about "lack of realism", which seems to refer to considerations of overall consistency with other accounts, prior inconsistent statements and the evidence of others who denied receiving an early report from Mr Dupon, all of which I would regard as not dependent upon specialised knowledge, the gravamen of his opinion relates to the effects of attention and expectancy upon perception. Dr Coyle effectively says that Mr Dupon "simply wasn't paying attention". And in any event if the sound of a voice speaking emanated from his neighbour's place the natural tendency is to expect the person speaking is his neighbour. These factors, coupled with what he regards as inconsistency with other evidence, according to the expert, are consistent with reconstruction (Dr Coyle says re-creation) "of his memory of the night in question". Dr Coyle says this calls into question, in a very significant way, Mr Dupon's reliability as a witness.

39 I do not regard the availability of Dr Coyle's evidence as making any difference in the present case. First, the non-expert issues of late reporting, prior inconsistency, lack of consistency with other relevant evidence, lack of attention and mistake were all explored appropriately with the utmost thoroughness by learned trial counsel. Counsel also relied upon these matters in seeking to persuade the jury that they should not accept Mr Dupon's evidence. Secondly, so far as expectancy effect is concerned, this was dealt with most effectively, with respect, in the summing up of trial judge, Adams J.

40 The Court of Criminal Appeal had regard to these matters, and I will set out paragraphs [121] - [123] of Sully J's judgment dealing with counsel's argument:

[121]...[Counsel's] submissions respecting Mr. Dupon's evidence occupy the whole or part of some 14 pages of transcript: T 1889-1902. The flavour of the submissions, read fairly as a whole, emerges in their very opening paragraphs:

"Before I discuss the evidence of Mr. Dupon it's clear in the Crown case that his credibility - I won't say this - his account is a very important aspect of the Crown case. It's important from Catherine Friend's perspective to scrutinise his account of the voices in the courtyard with care. Not only is it an important part of the Crown case, but the evidence of Mr. Dupon that he told the police from the very start about the voices in the courtyard has to be evaluated by reference to what others say in the call, the people he says he spoke to about this, other police officers.

By looking at the internal consistency of what he records in his witness statement about these issues, the unfolding nature of his witness statements is also another telling aspect which in my submission you could take into account in evaluating this evidence. His knowledge of what is omitted from the witness statement and his reaction in that regard, his contemporaneous account of what he heard and the accuracy of those statements and other issues associated with his account.

Now one can take into account, in evaluating the reliability of his observations about the sounds and the voices in the courtyard, the delay in disclosing the written form, going to the authorities and saying there were voices in the courtyard, and you can take into account my cross-examination of Mr. Dupon in determining his reliability in this regard................... " [T 1889,1890]

[122] Counsel's submissions continued with a careful and detailed canvass of aspects of Mr. Dupon's evidence at trial and of aspects of the contents of the various pre-trial statements that Mr. Dupon had made to the investigating police. Towards the end of this portion of his closing address, counsel put these propositions:

"......... Ultimately, I would be submitting to you when you come to evaluate Mr. Dupon's evidence, you will have the benefit of his Honour's directions of law regarding that evidence. Catherine Friend does not say that Mr. Dupon is necessarily wrong about his recollections, however, we don't concede it is right what he says. He may quite genuinely be mistaken about everything associated with this. Of course, he made no concession that he was mistaken. I have read to you when I put to him "you may be mistaken".

But by that stage, the stage of this trial, he has furnished the last witness' statement, the one I have just taken you to, the one of March 2004, where he records voices in the courtyard for the first time. Of course, he says to you, the Jury, he told all and sundry, in terms of police officers, three of them - well no, two of them, not Sergeant Hohnen - those police officers, that salient fact.

I will take you through the rest of the evidence in that regard. But I will be submitting to you this: that in the course of human affairs, common sense will dictate that an individual who has finally prepared a witness' statement about voices in the court-yard two years after the event may be extremely reluctant to admit any form of concession they are mistaken. It is very significant evidence in this trial against Catherine Friend. Let us not make any distinction in that regard. There would be, in my submission, a natural reluctance to admit any sort of mistake." [T 1900, 1901]

[123] Counsel rounded out his submissions concerning the evidence of Mr. Dupon by putting to the jury the following submissions:

"So what we have is Mr. Dupon's evidence that he told police officers about this very important piece of information. Junee can't recall it and Sparkes says it wasn't volunteered or disclosed to him. And the first police officer to actually ask Mr. Dupon about his evidence, it is not disclosed, at least in terms of the note.

Common sense would dictate to you, even if you were investigating a murder such as this, that hearing voices in the court-yard after a discharge of a firearm is very significant and important and if told to you, you would remember it. In considering Mr. Dupon's evidence as a whole, I would ask you to consider he is mistaken about this, certainly about the identification of the sex of the individual, a male individual, mumbling in the court-yard. It can be TV in the middle of the night. It is a quiet night, apparently. He can hear the TV. Could be the dogs. Could be my client. You have heard my client's explanation, she was subject to cross-examination on the issue." [T 1902]

41 Having reviewed the material, I am driven to comment that Adams J dealt with Mr Dupon's evidence with impeccable fairness and great clarity. Again, I will extract the relevant parts from Sully J's judgment:

[124] It is useful to complete the present survey of the relevant course of events at the trial, by noting the way in which his Honour dealt with Mr. Dupon's evidence in the summing-up. Early in the summing-up his Honour gave the jury the following general directions and observations:

"So then, this was no more than a recollection of something that took only a few fleeting seconds, to which he was not paying any particular notice and when he was going off to bed to resume the sleep that had been so rudely interrupted by the loud bang.

I make the common sense observation, members of the Jury, but of course it is a matter for you, that it is actually quite difficult when you are relying on hearing alone and even when you are paying attention, to place where any noise is coming from. When you are not really paying any attention to it, you have no reason to assess the reliability or question the accuracy of your immediate impression. In this respect, the impression that the voices were, as it were, following him along the corridor might be significant. It is a matter for you, because it might suggest some other source than the court-yard for them, since voices might well have been carried by the peculiarities of high paling fences and surrounding building. When that happens, when the sound is being bounced around, it might well seem to follow you, you may think. This is just part of ordinary, human experience.

Moreover, the power of assumption is very significant. If, during the few seconds in question, Mr. Dupon assumed that he was hearing voices from the court-yard, perhaps that was indeed where Catherine Friend's voice came from. It might be very difficult for him later to separate the assumption from the actual experience. Of course, once the idea is planted, probably unconsciously, it becomes by and large, does it not, the reality. It cannot be effectively re-examined or revisited. In other words, if you didn't pay attention at the time, later thinking about it doesn't help. You are still thinking about something that you didn't pay much attention to at the time.

So that in this case, upon this consideration, the evidence of Mr. Dupon that he heard the voices coming from the court-yard is truly his honest evidence. It is this difficult area between the experience and the opinion or belief that a witness has about it, that you need to explore in asking yourself whether it is safe to rely on Mr. Dupon's evidence, not that he heard voices but where those voices were coming from.

Now, the evaluation of these matters, it is a matter for you and I expect that I am merely bringing to your attention questions that you have already thought about and no doubt discussed. However, I feel that I would be very remiss in my duty if I did not impress upon you the need to be very cautious indeed about regarding the evidence of Mr. Dupon about hearing a conversation between the accused Catherine Friend and a male in the court-yard at 28 Wyattville Drive as being reliable enough to act upon. If, on the other hand, after thinking about the matter carefully and exercising the necessary caution that you must, given the whole of the circumstances and the importance of that question, you are persuaded that indeed he did hear that evidence, well that would be a very important factor which you would bring to bear in your consideration of the issues in this case, in particular the case of Catherine Friend." [SU 18, 19, 20 and 21]

[125] Towards the end of the summing-up, and having made a carefully detailed canvass of Mr. Dupon's evidence at trial, his Honour said:

"Now, the parties rely in different ways on the way in which Mr. Dupon brought this conversation to the attention of police. I think the only matter that I want to refer you to specifically, because you have got all his statements, is the point that there was a door knock. The police had gone around asking people what they had seen and heard. Constable Hohnen was one of those police. I do not think his notebook is before you because it was extracted in oral evidence.

The important point, you might think, about his evidence is this. He is asking whether anything was, in particular, seen and heard, and Mr. Dupon talked about hearing the bang and does not talk about hearing the voices. Now, it may be that he simply overlooked it. It did not occur to him that it was important. There are a number of possible explanations. Nevertheless, it does seem that the first time he is asked about what he heard that might be important, he does not advert to the voices at all. That point is perhaps less significant than it might otherwise appear, though it's a matter for you, in that he doesn't mention that he heard Catherine Friend's voice and it's not disputed that indeed she did say something in the patio. The strange thing you might think, ladies and gentlemen, about this aspect of the evidence is this, especially when it comes to Mr. Dupon's statement to the police, and that is he assumed; he told you that conversation was between, he had heard a conversation between Jason and Catherine, but he learnt very early in the morning that Jason was shot and that that was the bang that he heard or almost certainly the bang that he heard, yet he did not, it seems, realise that it followed that the voice that he heard could not be that of Jason Friend. He simply never made the link." [SU 81, 82, 83]

42 In my opinion, with respect to him, Dr Coyle's expression of similar ideas adds no value to the thorough and careful way in which the important question of the reliability of Mr Dupon's account was put to and left with the jury by trial counsel and the trial judge. I think it fair to say, all of the essential issues discussed by Dr Coyle were thoroughly and appropriately canvassed in the passages I have quoted above.

43 Thirdly, I mean no disrespect to Dr Coyle when I point out that his report does not adequately identify the rules developed by his branch of specialised knowledge for assessing the matters he addresses in a way which would assist a jury to assess the credibility, in the sense of reliability, of Mr Dupon's evidence. His opinion falls into the category of the bare ipse dixit.

44 Fourthly, there was simply no issue at the trial that the applicant was in the courtyard in the immediate aftermath of what proved to be the gunshot. There was no issue that she audibly uttered the words "shut up". She said so in her own evidence in chief: 1704.45T; 1705.20 - 30T; 1707.55 - 1708.15T, 24th June 2005.

45 This brings me to the second point concerning Mr Dupon's evidence; that is that he may have been mistaken in that the "male voice" he heard was in fact the rasping of the debarked poodle, Brodie. This is the inference that the fresh evidence of the veterinary surgeon, Dr Adams, and the lay witness, Ms Jane Miles, is said to support.

46 Once again however, that hypothesis consistent with innocence was fully explored at the trial (1707-1708T):

Q. What's your recollection about the sequence of events about the dogs, and saying "shut up" to the dogs that night?

A. I just remember when, when I woke up to the loud noise, I put Georgia back down in the bed and then I went out the front, and as I come back inside the house the dogs were going berserk and they were running around the house and towards the back-door, and they were scratching at the back-door but they didn't want to go out, so.

Q. You went outside into the courtyard?

A. I let - I let the dogs out. They went out, and then Priscilla was barking - the other dog wasn't able to bark because she was debarked - but they both went out and she was barking.

Q. Would you have said anything else, except "shut up"?

A. Possibly I would have.

Q. Possibly what?

A. Gotten angry at her to tell her to calm down, come back inside.

Q. How would you have said that, if you had said it?

A. I don't know. I was half asleep. But I wouldn't have been too happy, because I wasn't very happy anyway because I hadn't been to sleep for a few days.

Q. What was the status of the TV at this time?

A. The TV was on.

Q. How do you know it was on?

A. The TV is always on in my house. It is the first thing I do in the morning, and I go to sleep with it on every night.

Q. Where was Georgia at this time?

A. I had left her on the mattress. She had woken up, but when I put her back down she had gone back to sleep.

Q. In paragraph 30 I think you indicate in fact that you had turned the TV off?

A. No. I turned the - I turned the TV on when Jason was going to bed and I was going to go to bed, and he had put her in her cot and he came back and said to me, I think it was something along the lines of, that it was a short sleep, a cat nap. I got her out of the cot, and that is when I was going to sleep in the lounge room and I turned the TV on.

Q. So do you know why it is "off" rather than "on"?

A. No, I don't, but I know I turned it on because I got the remote control off the entertainment unit and it was beside the bed.

Q. You say, just before the reference to the TV, you "locked the back door". What was the status of the doors in the house in relation to your dogs?

A. Normally the back screen door, security mesh screen door and the back glass sliding door off the family room

Q. Off the kitchen?

A. Kitchen, yes. I generally, as a rule, used to keep them open enough for Priscilla and Brodie to go in and out to the toilet.

47 The applicant adhered to this account in cross-examination: 1762.25 - 1763.10T. She said she was in the paved area of the courtyard just outside the sliding family room door. She said Brodie "was not making any noise because... she couldn't bark". However jurors are likely to know, from their own experience of life, that debarked dogs emit a raspy whispering sound. Her account is that the poodle Priscilla was barking (1762.20 - 45T). The applicant's evidence was that she yelled out "shut up". This may raise a question about how Mr Dupon would have heard the raspy bark over the full bark, which I need not tarry to consider.

48 Mr Dupon gave evidence of a male and female voice talking and that one of those voices talking was the applicant's, because he heard her say shut up "as she normally says to her dogs": 589.25 - 55T. He said the voices were speaking in a normal conversational tone and that he did not take any notice. The voices were coming from the courtyard next door. But in chief he said he didn't hear any dogs at the time (591.5-30T).

49 In cross-examination for the applicant, he said the voices were not whispering and that he really "didn't take any notice of what they were saying". The only clear words he heard were "shut up": 654.5-10T. He assumed they were his neighbours, Jason and Catherine Friend: 655.40T. At 656.5T he said:

The assumption, the reason I have taken there were two people in the courtyard, was because I heard the sounds of a male and a female voice, yes.

He denied he was mistaken about hearing a male voice (691.20T).

50 At the earlier trial before Hidden J, when asked about barking dogs, he gave the following evidence (at 758.40-55T):

Q: This issue of what you heard at that time, it could have been barking dogs?

A: Well I didn't hear any dogs but it could have. I didn't hear any dogs that night.

Q: One of the dogs is debarked to your knowledge?

A: No I didn't realise that, no...

Q: You heard the feet of the dogs, did you not?

A: Well I can't recall 100 per cent. I thought I heard the feet of the dogs.

This line of cross-examination does not seem to have been pursued at the third trial, but the issue that Mr Dupon mistook the sound of the dogs including the debarked poodle for a male voice was fully rehearsed and put to the jury.

51 Moreover, as I have indicated above, Adams J effectively gave the jury a Shepherd direction in relation to Mr Dupon's evidence about the conversation, that is, that his evidence was an essential link in the circumstantial chain and that the jury could not convict unless satisfied of it beyond reasonable doubt. The Court of Criminal Appeal was satisfied that from what his Honour said, the jury would have understood that Mr Dupon's evidence about the conversation was an indispensable intermediate fact: [141] - [142] per Sully J.

An alternate entry point

52 As has been pointed out already, one of the circumstances established by the evidence was the difficulty of the gunman gaining access without the complicity of the applicant. At an earlier trial a police officer had given evidence that a side door to the garage accessible to the street was open and that its lock and bolt were undamaged. A back door to the garage was closed but unlocked. By this means an intruder could gain unforced access to the courtyard at the side of the house. As the applicant gave unchallenged evidence that the side sliding door to the family room was normally kept open to permit the dogs to come and go, as they needed, the police officers evidence combined with hers supported the case that her complicity was unnecessary for entry by an intruder.

53 Two things may be said about this point. At 1709.5T, the applicant herself gave the evidence that the garage door was propped open to allow the cat to come and go. She was unsure whether the garage door leading onto the courtyard was "open or closed or whatever" (1709.50). But this evidence establishes the existence of the garage doors door and raises the distinct possibility that both were kept unlocked.

54 She gave the evidence as set out above that the side sliding door to the family room was normally unlocked: 1708.50-55T. Some of her evidence suggests that the side sliding door may have been closed, if not actually locked. Particularly her evidence of the dogs scratching at the backdoor and "I let the dogs out": 1708.5T. However in cross-examination at 1762.15 she said that after she had come back from the front of the house after putting the garbage bin out, she went outside to tell the dogs "to be quiet and to stop them running in and out the door". Although the evidence-in-chief and cross-examination may not be entirely consistent, on the whole it may be said that there was circumstantial evidence at least that the sliding door was left open.

55 The second thing relates to the cut in the flyscreen covering the pane of the northern window in the main bedroom, which is the subject of the applicant's fourth point. It is convenient to deal with them both here. As Sully J pointed out in the Court of Criminal Appeal, although there were some aspects of the applicant's evidence about this topic which were difficult to reconcile, generally the existing evidence favoured the defence: [94] - [99]. Sully J identified a lacuna in the Crown case and the defence expert, professor Abel, was not effectively challenged about his hypothesis. Accordingly the evidence about the flyscreen did not establish a circumstance consistent with guilt. Indeed that evidence, on its own, demonstrated that it was possible for an armed person to have cut his way through the fly screen, opened the window, and entered the bedroom to shoot the deceased without any assistance from the applicant. Understanding why a person would do that is a little more difficult, as the flyscreen could have been easily removed. But these matters together show that the applicant was not deprived of any opportunity by the absence of evidence from senior constable Davies at the final trial.

56 The real point of the Crown case, which the jury would have considered, was that gaining access to a small house, without the applicant's complicity, would have been difficult without detection given the number of occupants, including the applicant and two small dogs.

Video re-enactment evidence

57 I have pointed out that the evidence generally supported the possibility of a grown man entering the bedroom of the deceased through the cut in the flyscreen of the bedroom window. Video evidence had been led at the first trial before Hidden J, depicting a police officer of about 183cm in height climbing in and out of the window with a long arm shotgun, through the cut in the flyscreen. There is no doubt that trial counsel for the applicant knew of the evidence, but as the Crown argue, no legal representative for any party showed any interest in having the video tendered.

58 A police officer of 185cm weighing 114kg gave evidence that he would have needed a larger cut because he was a bit overweight. This evidence really proved nothing.

59 The Crown's obligation of fairness is important, but it does not extend beyond a duty to assist in securing a fair trial. It does not extend to an obligation to present the defence case: Mallard v R (2005) 224 CLR 125 at [73] - [74] and [82].

60 Trial counsel for the applicant argued that an unknown intruder could have entered and left through the flyscreen: 1904.5-45T. The Crown did not argue that it was impossible.

The availability of the evidence of the co-accused

61 As has been pointed out, the jury which convicted the applicant could not agree about the guilt or innocence of the alleged co-accused, and nor could a subsequent jury. That person exercised his right not to give evidence at the joint trial, but gave evidence at the subsequent trial. His subsequent trial included evidence which, if accepted, neutralised the prospect of an ongoing relationship between him and the applicant as a motive to the extent their break-up had been initiated by the applicant, and she had told him she was happy with her resumed cohabitation with the deceased. An innocent explanation was proffered for the telephone call between the applicant and the co-accused on 15th January 2002, which lasted for 29 minutes. The explanation was consistent with the applicant's evidence. The Crown said the long telephone call three days before the murder must have had a sinister connotation.

62 As the Crown and the applicant accept, the evidence given by the co-accused is largely consistent with the ERISP of 21st January 2002 that was played for the jury which convicted the applicant. That material was available to the applicant as her submissions acknowledge. It was admissible under s83 Evidence Act if the applicant consented and under s65 as a previous representation of the co-accused given that he was not available to give evidence by virtue of s17 of that Act. He was not competent to give evidence for the prosecution and he was not compellable to give evidence for the applicant at a joint trial (see Part 2, Clause 4 of the dictionary to the Act).

63 I well understand that the applicant may feel a great sense of disappointment that she was convicted and her co-accused was not. But it is not completely accurate to say, as is argued in the submissions on her behalf, that two juries could not be satisfied beyond reasonable doubt that the co-accused was the murderer. Rather, two juries were unable to agree whether he was or not. Even his acquittal would not of itself been suggestive of something unsatisfactory about the applicant's conviction.

64 If the applicant had the benefit of another trial, the co-accused would be compellable (see s17(3) Evidence Act), but as he has not been convicted it would be open to him to decline to answer questions under s128 Evidence Act. Obviously the applicant would not seek to incriminate the co-accused. It is equally obvious that a cross-examiner might. His evidence might be of doubtful quality in those circumstances.

65 I accept the Crown submission that "the impact of having oral evidence from [the co-accused] would not have advanced the juries insight into their relationship beyond the material they already had available".

Conclusion

66 I accept the full force of the applicant's submission that it is not apt to consider each of the five points made "piecemeal". The question must be whether taking this "new" evidence together with all the circumstances established by the evidence led at the trial, I am left uneasy, or with a sense of disquiet about the applicant's conviction because all of the circumstances together with the "new" material may leave open a reasonable inference consistent with innocence for a jury.

67 Equally, it would be wrong to focus upon the five matters relied upon by the applicant separately. For that would be to invite the consideration of those matters in isolation from the other circumstances to seek an inference compatible with innocence.

68 In every case there will be evidence consistent with innocence. I reiterate, the question is whether there is an inference consistent with innocence when all of the circumstances established by the evidence are considered and weighed together.

69 In my opinion, the new material as a matter of practical reality does not add to the circumstances proved by the evidence at the trial in any meaningful way, and for the reasons I have expressed while considering the applicant's argument, it does not appear to me that there is a doubt or question as to the applicant's guilt.

70 I have earnestly considered all the submissions made by Mr Walker SC and those made by the Crown. I have concluded that the issues addressed by the new evidence raised were fully dealt with in the course of the trial at which the applicant was convicted. There has been an appeal to the Court of Criminal Appeal, which conducted a real review and consideration of the evidence led, and arguments advanced, at the trial. That court held the conviction was open. In all the circumstances, the consideration of the new evidence and the submissions in relation to it, together with the other material, has not given rise to any feeling in me of disquiet or unease about the conviction.

71 I would refuse the application under s78 Crimes (Appeal and Review) Act 2001 (NSW).

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Decision last updated: 08 October 2013