AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 4 March 2010

Raju v R

[2010] NSWCCA 38

Homicide
CRIMINAL LAW APPEAL APPEAL DISMISSED CRIMINAL LAW APPEAL MISCARRIAGE OF JUSTICE

Citation: Raju v R [2010] NSWCCA 38
Court: Court of Criminal Appeal, New South Wales
Date: 4 March 2010
Judge(s): McClellan CJ at CL, Howie J, Johnson J

Background

The appellant was convicted of the murder of his de facto partner following a third jury trial in the Supreme Court before Bell J. The deceased disappeared on 2 June 2002 and her body was never found. The appellant had been arrested in the Solomon Islands in November 2004 and extradited to Australia in February 2005.

The Crown alleged the appellant killed the deceased to prevent her from leaving him and taking their children. Evidence at trial established that the deceased had planned to leave the appellant on the morning of her disappearance, had arranged to meet her sister the following day, and was never heard from again. An earlier trial had returned a not guilty verdict on a related attempted murder charge; a second trial on the murder charge resulted in a hung jury.

The appellant was sentenced to 21 years imprisonment with a non-parole period of 16 years. He abandoned an appeal against sentence but pressed four grounds challenging his conviction.

  • Whether the jury's guilty verdict was unreasonable or unsupportable having regard to the evidence
  • Whether the Crown's failure to call a particular witness (Anthony Whittal) resulted in a miscarriage of justice
  • Whether the jury's lack of knowledge of the appellant's earlier acquittal on the attempted murder charge caused a miscarriage of justice
  • Whether the tender of a map exhibit (Exhibit S) invited impermissible jury speculation and thereby caused a miscarriage of justice

Decision

On the first ground, the Court found the verdict was not unreasonable. The circumstantial evidence, taken together, strongly supported the jury's conclusion. The deceased's close relationship with her sister, the plans they had made for the following morning, and the deceased's complete disappearance immediately after speaking with her sister were treated as compelling evidence that she was dead and that the appellant was responsible.

On the second ground, the Court declined to find a miscarriage arising from the Crown's failure to call Anthony Whittal. Leave was required to raise this ground because no objection had been taken at trial, and the Court was not satisfied that the failure to call that witness caused any injustice in the circumstances of the case.

On the third ground, the Court refused leave to raise the argument about the jury's ignorance of the prior acquittal. McClellan CJ at CL reasoned that introducing evidence of the attempted murder allegation would have carried real potential prejudice to the appellant. Notably, the Court observed that the argument cut both ways: evidence supporting the deceased's willingness to make allegations against the appellant could equally have supported the Crown's case that the appellant killed her to prevent such an allegation from being made.

On the fourth ground, concerning Exhibit S (a map marking mine and quarry sites within a 20-minute drive of the appellant's home), the Court again refused leave. The map had played little part in the trial and neither counsel addressed it in closing. The Court reasoned that even without the map, the jury would necessarily have understood that if the appellant had killed the deceased, her body must have been disposed of somewhere. The exhibit added nothing of real significance.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A murder conviction may be sustained in the absence of a body where the surrounding circumstantial evidence, including the sudden and unexplained cessation of close family contact, is sufficiently compelling.
  • Refusing leave to raise grounds not objected to at trial is consistent with the Court of Criminal Appeal's approach where the appellant cannot demonstrate that the failure caused actual injustice.
  • In dismissing the third ground, the Court applied the principle that evidence which an appellant argues would have assisted the defence may simultaneously have strengthened the prosecution case, undermining any claim of miscarriage.
  • The tender of an exhibit that played no meaningful role in addresses to the jury, and which added nothing beyond what the jury would already have inferred, was insufficient to establish a miscarriage of justice.
  • Where multiple retrials have been held and a jury ultimately returns a guilty verdict, that outcome does not of itself raise doubt about the reasonableness of the verdict; the Court examines the evidence as a whole on the third trial.

Legislation and Cases Referenced

Cases Cited:
- Burrell v R [2009] NSWCCA 193
- Norris v R [2007] NSWCCA 235
- TKWJ v The Queen (2002) 212 CLR 124
- Zaphir v R [2009] NSWCCA 124

Legislation: No specific legislation was identified in the metadata or the excerpted judgment text.