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Supreme Court 13 August 2012

R v BEST

[2012] NSWSC 924

Other
CRIMINAL LAW FACTUAL DETERMINATION.

Citation: R v Best [2012] NSWSC 924
Court: Supreme Court of New South Wales
Date: 13 August 2012
Judge: Rothman J

Background

Following a jury trial for murder, the accused was acquitted of killing a woman whose dismembered torso was found in bushland in Doonside, New South Wales. The victim's head, arms and legs were never recovered. After the acquittal, the Crown pursued two "back-up charges" under s 81C of the Crimes Act 1900: indecently interfering with a dead human body (Count 1) and improperly interfering with a dead human body (Count 2).

Under the Criminal Procedure Act 1986, back-up charges of this kind are determined by a judge alone, without a jury, and solely on the evidence already given at the original murder trial. No additional evidence was called. The accused pleaded not guilty to both counts.

The central factual question was whether the accused had dismembered the body of the deceased. The principal Crown witness was a woman who had been present at the alleged scene of the killing, and whose evidence the Crown also relied upon for the murder charge.

  • Whether the accused's acquittal for murder operated as a plea in bar (that is, a legal bar preventing the back-up charges from proceeding), on the basis that the elements of those charges were encompassed by the jury's verdict
  • Whether the trial judge was bound by, or constrained to apply, the same assessment of the evidence as the jury
  • Whether the Crown had proved Count 1 (indecent interference) beyond a reasonable doubt
  • Whether the Crown had proved Count 2 (improper interference) beyond a reasonable doubt

Decision

Plea in bar rejected. The accused relied on Mraz v R (1956) 96 CLR 62, arguing that the murder acquittal barred the back-up charges. Rothman J rejected this submission. The offences under s 81C do not require proof of a murder, nor do they share the same elements as murder. A plea in bar, as the High Court explained in Pearce v The Queen, applies only where the elements of the later charge are the same as, or included in, those of the earlier offence. These charges concern the treatment of a dead body regardless of how the person died or who caused the death.

Count 1 (indecent interference) dismissed. The Crown itself conceded that this charge depended substantially on the jury's rejection of the key witness, Ms Hogden, who had described alleged sexual acts performed on the deceased. Rothman J was unable to accept Ms Hogden's account to the requisite standard. Her evidence was internally inconsistent and contradicted by another witness whose evidence the court accepted. The charge was not proved.

Count 2 (improper interference) proved beyond reasonable doubt. On Count 2, the court drew on twelve circumstances identified by the Crown. The hacksaw used to dismember the body was found in the accused's van, and the van contained hair and DNA matching the deceased. The accused's explanation for borrowing the hacksaw was rejected as implausible. He had removed the rear seats of the van, enabling it to carry large objects. A witness had seen him in the early hours of the morning with garbage bags near the area where the torso was found. He was also seen at that same parkland weeks later. A text message sent to the deceased's phone after her disappearance, thanking her for a meeting that never occurred, was consistent only with a fabricated alibi.

No single piece of evidence was sufficient on its own, but Rothman J found that their combination, together with an alleged admission given minimal weight, proved beyond reasonable doubt that the accused had dismembered the body. The only reasonable explanation for all the established facts was that the accused had done so. The accused was found guilty on Count 2. The maximum penalty for that offence is two years' imprisonment, and the accused had been in custody since August 2010 on the murder charge for which he was ultimately acquitted. The judge indicated he would hear submissions on sentence.

Orders Made

• Mr Best found guilty of improperly interfering with a dead human body or human remains, namely, Kristi McDougall (Count 2)
• Court to hear submissions on sentence

Key Takeaways

  • A not-guilty verdict on a murder charge does not automatically bar back-up charges under s 81C of the Crimes Act 1900 for interference with a dead body. Those offences contain different elements and do not depend on proof of a killing.
  • Under s 168 of the Criminal Procedure Act 1986, a judge determining back-up charges after an acquittal is confined to the evidence adduced at the original trial, unless leave is granted to call additional evidence.
  • The principle from Mraz v R applies only where the elements of the subsequent charge are the same as, or fully included in, those of the offence on which the accused was previously tried. It does not extend to offences with distinct and independent elements.
  • Circumstantial evidence, including possession of a murder weapon with the victim's DNA, inconsistent explanations, suspicious purchases, and the content of text messages, can together satisfy the beyond-reasonable-doubt standard even where no single piece of evidence does so alone.
  • Where a key witness lacks credibility across their account, a court determining back-up charges is not required to accept those parts of the witness's evidence that the jury may also have rejected, provided there is no inconsistency with the acquittal verdict.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 81C(a) and (b)
- Criminal Procedure Act 1986 (NSW), ss 165, 166, 168

Cases
- Mraz v R (1956) 96 CLR 62
- Pearce v The Queen (1998) 194 CLR 610