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Court of Criminal Appeal 12 March 1999

REGINA v SUCKLING

[1999] NSWCCA 36

Homicide

Citation: [1999] NSWCCA 36
Court: NSW Court of Criminal Appeal
Date: 12 March 1999 (judgment delivered 15 March 1999)
Judge(s): McInerney J, Ireland J, Adams J

Background

The appellant was convicted by a jury in July 1996 of the murder of a 21-year-old woman whose body was never found. She had last been seen alive around Christmas 1987 and was a sex worker living in Melbourne at the time of her disappearance. The Crown alleged the appellant abducted and killed her, burying her body on or near a remote station property in south-west New South Wales where he worked as a caretaker.

The appellant made an unsworn statement to the jury acknowledging an association with the deceased in late 1987. He claimed she had left his company voluntarily on the night of 26 December 1987 to buy drugs with friends and never returned. However, several items belonging to the deceased, including her dental plate, clothing, jewellery, and photographs, were later found in his bedroom at the station property.

The prosecution relied heavily on circumstantial evidence, including statements the appellant allegedly made to another person referred to as "Bob Collins," evidence of sedative drugs found at his property, and evidence of similar conduct involving other women. The appellant challenged his conviction on multiple grounds and also sought leave to appeal against his sentence of penal servitude for life.

  • Whether statements made by the appellant to "Bob Collins" were properly admitted, given arguments about voluntariness and whether they were induced or obtained improperly
  • Whether evidence of the appellant's similar conduct involving other women was properly admitted as tendency or coincidence evidence (often called "similar fact" evidence)
  • Whether the trial judge correctly directed the jury on the use of circumstantial evidence and on the credibility of the "Bob Collins" evidence
  • Whether the appellant was correctly sentenced under section 19A of the Crimes Act 1900, given that the original committal proceedings were commenced (and then abandoned) before that provision came into force
  • Whether the sentencing judge was correct to find that the murder fell within the worst category of the offence, warranting a life sentence

Decision

The Court of Criminal Appeal dismissed all grounds of appeal against conviction. The court considered the admissibility of the statements made to "Bob Collins" and was satisfied that no error had been established in the trial judge's treatment of those statements. The court also considered challenges to the similar fact evidence and the directions given to the jury, finding no basis to interfere with the trial judge's rulings or directions.

On the question of similar conduct evidence, the court applied established principles requiring that such evidence have sufficient probative value to outweigh its prejudicial effect. The court was satisfied that the evidence had been admitted consistently with those principles and that the jury had been properly directed as to its use.

Regarding sentence, the central question was which version of section 19 of the Crimes Act 1900 applied. Section 19A, introduced in May 1982, provided for mandatory penal servitude for the term of the offender's natural life for the worst category of murders, but included a saving provision under subsection (4) applying it to murders committed before or after the section commenced. The appellant argued that the Interpretation Act 1987 should have prevented retrospective application of an increased penalty, and that the original committal proceedings, instituted in 1989 before section 19A commenced, should attract the former sentencing regime.

The Court rejected both arguments. Section 19A(4) expressly stated it applied to murders committed before or after commencement, and the court found this constituted a contrary intention sufficient to displace the general rule in the Interpretation Act 1987. Because the original committal proceedings had been discontinued and fresh proceedings commenced in June 1994 (after section 19A was already in force), the saving provision in section 19A(5) did not assist the appellant. The sentencing judge had correctly applied section 19A, and the court saw no error in the finding that the murder fell within the worst category of the offence.

Orders Made

  • Appeal against conviction dismissed
  • Application for leave to appeal against sentence dismissed (life sentence confirmed)

Key Takeaways

  • The Court of Criminal Appeal confirmed that where committal proceedings for murder are discontinued and fresh proceedings commenced after the commencement of section 19A of the Crimes Act 1900, the mandatory natural life sentencing regime under section 19A applies.
  • Under section 19A(4), the provision expressly applies to murders committed before or after its commencement, and this express language constitutes a "contrary intention" sufficient to displace the general rule in section 55(1) of the Interpretation Act 1987 against retrospective increases in penalty.
  • Similar fact (tendency or coincidence) evidence is admissible where its probative value is sufficient to outweigh its prejudicial effect; the court found no error in the trial judge's application of that test in this case.
  • A concession made by both counsel at the sentencing proceedings as to the applicable sentencing regime did not prevent the court from considering whether that concession was correctly made, though here the court ultimately agreed the concession had been correct.
  • In a circumstantial murder case where no body was recovered, the combination of physical items linked to the deceased found at the accused's property, evidence of the deceased's personal habits (such as her reluctance to remove her dental plate in public), and inculpatory statements made to a third party can together support a jury's verdict of guilty.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW)
- Crimes Act 1900 (NSW), ss 19, 19A, 442
- Interpretation Act 1987 (NSW), ss 5(2), 55(1)

Cases
- R v Singh Bal (1997) 92 A Crim R 397
- R v Carusi (1997) 92 A Crim R 52
- R v Swaffield (1997-98) 151 ALR
- Pavic v R (1997-98) 151 ALR 98
- Cleland (1982) 151 CLR 1
- BD (1994) A Crim R 131
- Harriman v The Queen (1988-89) 167 CLR 590
- Makin v Attorney General (NSW) [1894] AC 57
- Van der Meer (1988) 82 ALR 10
- Pfennig v The Queen (1994-95) 182 CLR 461
- Peacock v The King (1911) 13 CLR 610
- Shepherd v The Queen (1990) 170 CLR 573
- Gipp v The Queen (1998) 72 ALJR 1012
- Gordon & Gordon (1991) 57 A Crim R 413
- Blade (unreported, CCA, 1 May 1991)