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25
Court of Criminal Appeal 24 February 2012

Wood v R

[2012] NSWCCA 21

Also reported as (2012) 84 NSWLR 581
Homicide
CRIMINAL LAW APPEAL CONVICTION UNREASONABLE VERDICT UNSUPPORTED BY THE EVIDENCE CIRCUMSTANTIAL EVIDENCE

Citation: Wood v R [2012] NSWCCA 21
Court: NSW Court of Criminal Appeal
Date: 24 February 2012
Judge(s): McClellan CJ at CL; Latham J; Rothman J

Background

The applicant was convicted of the murder of his partner, Caroline Byrne, who died on the night of 7 June 1995. Her body was recovered from rocks at the Gap at Watsons Bay, Sydney. At the time, authorities assumed she had committed suicide, and a coronial inquest returned an open finding in February 1998.

Charges were not laid until 2006, more than a decade after Ms Byrne's death. The prosecution's case was circumstantial. It depended heavily on expert biomechanical evidence from an engineer (Associate Professor Cross) who sought to demonstrate that Ms Byrne could not have jumped to the location where her body was found, but that a strong man could have thrown her there using a "spear throw" technique. There was no eyewitness to Ms Byrne's fall, and the trial judge ruled that the Crown could not use any lies by the applicant as consciousness-of-guilt evidence.

The applicant sought leave to appeal his conviction on multiple grounds, including that the verdict was unreasonable, that the expert evidence was flawed, that the identification evidence was weak, and that the Crown prosecutor's conduct had misled the jury.

  • Whether the verdict was unreasonable or unsupported by the evidence, having regard to all the circumstantial evidence considered as a whole
  • Whether the identification evidence (placing the applicant at or near the scene) was of sufficient probative value, and whether appropriate directions were given regarding the "displacement effect" of such evidence
  • Whether the expert evidence was admissible and properly qualified, and whether the expert breached the Expert Witness Code of Conduct in a manner affecting admissibility or weight
  • Whether the trial judge erred in refusing to give a Shepherd direction requiring the jury to be satisfied beyond reasonable doubt of certain intermediate facts (including the "spear throw" technique and the location of the body, known as "hole A")
  • Whether the Crown prosecutor's conduct caused a miscarriage of justice through unfair submissions, misrepresentation of evidence, inversion of the onus of proof, or departure from the Crown's case theory
  • Whether there was fresh or new evidence not disclosed by the prosecution at the time of trial that warranted a different outcome
  • Whether the evidence of a joint criminal enterprise was sufficient to support that theory
  • Whether the lack of motive evidence created unfair prejudice through speculation

Decision

The Court of Criminal Appeal unanimously allowed the appeal, quashed the conviction, and entered a verdict of acquittal. McClellan CJ at CL delivered the principal reasons, with Latham J and Rothman J adding concurring observations.

The court found the verdict unreasonable. The Crown's entire case rested on the combination of expert evidence (to exclude suicide) and weak identification evidence (to place the applicant at the scene). The expert evidence was significantly undermined by unresolved controversy over which rock crevice, "hole A" or "hole B," actually contained Ms Byrne's body. If the body was at hole B rather than hole A, the scientific calculations underpinning the Crown's case collapsed. The court was not satisfied this controversy was resolved to the requisite standard.

The identification evidence was found to be of very limited weight. The principal witness, Mr Doherty, did not come forward until three years after Ms Byrne's death, and the court identified significant shortcomings in his account. Latham J noted that without reliable identification evidence, there was a potentially fatal gap in the Crown case: no evidence at all placed the applicant with Ms Byrne at the moment she left the cliff top. The inference the Crown invited the jury to draw from Mr Doherty's evidence was not one that could reliably be made.

The court also found that the Crown's submission on motive amounted to an invitation to speculate. The Crown conceded it could only assert that Ms Byrne "must have intimated" she wanted to end the relationship, which the court regarded as falling short of the evidence needed to support the motive theory. Rothman J emphasised that suspicion and conjecture, even grave suspicion, cannot ground a finding of guilt. On an independent assessment of all the evidence, a reasonable doubt remained that was not attributable to any advantage the jury had in seeing and hearing witnesses at trial.

Orders Made

  • Leave to appeal is granted and the appeal is upheld; the conviction is quashed.
  • A verdict of acquittal is entered.

Key Takeaways

  • In a purely circumstantial murder case, where the Crown's entire theory depends on excluding a reasonable hypothesis (here, suicide), every foundational element of that theory must itself be established to the requisite standard; weakness in any pillar can undermine the whole case.
  • A conviction cannot stand where the expert evidence relied upon to exclude an alternative cause of death is itself dependent on an unresolved factual dispute (here, the precise location of the body) that the Crown failed to prove beyond reasonable doubt.
  • Where identification evidence is inherently weak and cannot reliably support the inference that an accused was present at a crime scene, that gap cannot be bridged by expert evidence that addresses only the mechanics of the death, not the identity of the perpetrator.
  • The Court of Criminal Appeal confirmed that inviting a jury to speculate about motive, rather than pointing to evidence that actually establishes it, is impermissible in a circumstantial case, consistent with the principles stated in Plomp v R (1963) 110 CLR 234.
  • Breaches of the Expert Witness Code of Conduct, and the proper qualifications and assumptions underlying expert evidence, were examined as matters going to both admissibility and weight, with the court retaining a discretion to exclude evidence where those requirements are not met.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW)
- Evidence Act 1995 (NSW)
- Director of Public Prosecutions Act 1986 (NSW)
- Legal Profession Act 2004 (NSW)
- New South Wales Barristers' Rules
- Uniform Civil Procedure Rules 2005

Key Cases:
- Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573 (Shepherd direction on intermediate facts)
- Plomp v R [1963] HCA 44; 110 CLR 234 (circumstantial evidence and motive)
- M v The Queen (unreported, cited for the reasonable doubt standard on appeal)
- Barca v The Queen [1975] HCA 42; (1975) 133 CLR 82
- Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 85 ALJR 694 (expert evidence qualification)
- Domican v The Queen [1992] HCA 13; (1992) 173 CLR 555 (identification evidence directions)
- Chamberlain [No 2] v The Queen [1984] HCA 7; (1984) 153 CLR 521
- Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
- Azzopardi v The Queen [2001] HCA 25; (2001) 205 CLR 50