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Court of Criminal Appeal 6 April 2001

R v Serratore

[2001] NSWCCA 123

Homicide
MURDER METHOD OF INDICTMENT SINGLE INDICTMENT EVIDENCE OF INTENTION

Citation: R v Serratore [2001] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 6 April 2001
Judge(s): Beazley JA; Grove J; Whealy J

Background

The appellant was convicted at a second trial of the murder of Frances Tizzone, a 20-year-old university student whose body was found on Wakehurst Parkway, Frenchs Forest in April 1995. She had last been seen on 29 March 1995, the day she had arranged to meet the appellant, who was her former boyfriend. The probable cause of death was strangulation or suffocation.

The Crown alleged the appellant was guilty on one of three bases: he killed the deceased himself, he aided and abetted an unknown person who caused her death, or he procured an unknown person to kill her. A key piece of physical evidence was the presence of fibres on the soles of the deceased's boots that matched the carpet of the appellant's Honda CRX motor vehicle.

The appellant had been convicted at an earlier trial, but that conviction was quashed on appeal and a new trial ordered. The present appeal arose from the guilty verdict returned at that second trial.

  • Whether it was inherently unfair to charge the appellant on a single count of murder where the Crown alleged three different modes of participation in the one indictment
  • Whether the trial judge correctly admitted evidence of a conversation in which the appellant had, approximately five months before the deceased's death, asked a witness to help him kill her, as evidence of intention
  • Whether the verdict was unreasonable or unsupported by the evidence, or amounted to a miscarriage of justice

Decision

On the indictment question, the Court declined to grant leave to re-argue the point. The identical challenge to the same form of indictment had been raised and determined adversely to the appellant in the appeal from his first trial. The Court applied the principle that a matter already decided on a prior appeal should not be re-litigated, and found no basis to depart from that earlier ruling.

On the admission of the prior-conversation evidence, the Court held that the trial judge was correct to admit it as evidence of the appellant's intention. The conversation, in which the appellant had solicited assistance to kill the deceased some five months before her death, was directly relevant to the question of whether he harboured the necessary intent. The Court found no error in the evidentiary ruling.

On the sufficiency of the evidence, the Court concluded that the verdict was well open to the jury. The fibre evidence was described as pointing overwhelmingly to the appellant's guilt: expert analysis established that fibres found on the deceased's boots came from the appellant's vehicle and no other CRX could account for them. The appellant's challenge to the time-of-death evidence, which relied on competing entomological expert opinions, was also rejected. The Court found the forensic pathologist's evidence that death occurred on or about 29 March was unshaken, and it was open to the jury to accept it and to treat the entomological evidence as not raising a reasonable doubt.

Orders Made

  • Appeal dismissed

Key Takeaways

  • A party cannot re-litigate a ground of appeal that was raised and determined against them in a previous appeal arising from the same proceedings, even where a retrial has occurred.
  • Evidence that an accused solicited assistance to commit a killing several months before the victim's death is admissible as evidence of the accused's intention at the relevant time.
  • A single count of murder framed to encompass multiple modes of participation (principal offender, aider and abettor, or procurer) is not inherently unfair to an accused, at least where that question has already been authoritatively resolved in prior proceedings involving the same indictment.
  • Sufficient evidence supported the conviction where expert fibre analysis linked the deceased's boots to the appellant's vehicle and all other plausible sources of those fibres were eliminated.
  • Where competing expert opinions exist on a factual question such as time of death, it remains open to the jury to prefer one expert's evidence over another, provided the preferred evidence is not undermined such that a reasonable doubt must follow.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18
- Evidence Act 1995 (NSW), ss 72, 136
- Criminal Appeal Act 1912 (NSW), s 6(1)

Cases:
- R v Serratore [1999] NSWCCA 377
- Thatcher v The Queen (1987) 39 DLR (4th) 275
- R v Giannetto (1997) 1 Cr App R 1
- R v Leivers & Ballinger (1998) 101 A Crim R 175
- Burt v Barry & Roberts, Ex parte Barry & Roberts [1956] QSR 207
- State Government Insurance Commission v Clift (1990) 54 SASR 52
- Jacobs v London County Council [1950] AC 361
- R v O'Leary (1946) 73 CLR 566
- R v Adam (1999) 106 A Crim R 510
- R v Player [2000] NSWCCA 123
- M v The Queen (1994) 181 CLR 487
- Jones v R (1997) 191 CLR 439
- Hocking v Bell (1945) 71 CLR 430
- R v Pantoja (1996) 88 A Crim R 554
- R v Fleming (1998) 197 CLR 250
- R v Maxwell (unreported, NSW Court of Criminal Appeal, 23 December 1998)