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8
Court of Criminal Appeal 2 September 2014

Campbell v R

[2014] NSWCCA 175

Also reported as (2014) 312 ALR 129
Homicide
CRIMINAL APPEAL CONVICTION CONSISTENT WITH AN INTENTION TO KILL DIRECTION CONSENTED TO NO TACTICAL DISADVANTAGE

Citation: Campbell v R [2014] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 2 September 2014
Judge(s): Bathurst CJ; Simpson J; Hidden J

Background

The appellant was convicted of murdering his wife, Janet Campbell, on 24 March 2005. The prosecution's case was that the deceased fell from a cliff during what the appellant presented as a recreational outing, and that the circumstances surrounding her death, the relationship between the couple, financial dealings, and the appellant's conduct before and after the event, established beyond reasonable doubt that he caused her death with intent to kill.

The evidence at trial painted a detailed picture of the relationship. Witnesses testified that the appellant had repeatedly spoken about the deceased in derogatory terms, denied the relationship even existed, and expressed frustration about her pursuing him. The couple married in September 2004 in a secret ceremony with no family present, and the deceased subsequently updated her will to include the appellant as a beneficiary. The deceased's family described her as having a fear of heights and no interest in outdoor activities.

The appellant appealed his conviction on four remaining grounds (a fifth, relating to manslaughter, was abandoned). Those grounds challenged a jury direction concerning an alternative basis of liability, the admissibility of expert evidence, the relevance of fresh evidence, and the directions on tendency and motive evidence.

  • Whether the trial judge's summing-up introduced a new and unsupported theory of liability (reckless indifference to human life) that was not part of the Crown case, causing a miscarriage of justice
  • Whether expert evidence from Associate Professor Cross was properly admitted under s 79 of the Evidence Act 1995 (NSW), and specifically whether his qualifications met the "specialised knowledge" requirement established in Dasreef and Makita
  • Whether a prior Court of Criminal Appeal decision criticising the same expert, and a book he had published, constituted fresh evidence that warranted a new trial
  • Whether the trial judge erred in directing the jury that evidence from one witness could be used both as tendency evidence and as evidence of motive

Decision

Ground 1: Reckless indifference direction. The trial judge's summing-up included a direction on reckless indifference to human life as an alternative basis for murder under s 18 of the Crimes Act 1900 (NSW). The Court accepted this was a misdirection because reckless indifference had not been part of the Crown's case. However, the Court found no substantial miscarriage of justice had resulted. The defence at trial was that the appellant had no involvement in the death at all, meaning the jury would not have needed to consider lesser mental states. The risk of the jury speculating along the erroneous pathway was remote, and no objection had been raised by trial counsel.

Ground 3: Admissibility of expert evidence. The Court found that the trial judge erred in admitting evidence from Associate Professor Cross. While he demonstrated expertise in the mechanics of falls through study and experience, the Court concluded that the specific basis on which he was qualified, particularly how his investigative experience equipped him to give the opinions he gave in this case, was not adequately established. Publications were not tendered, and their titles alone were insufficient to demonstrate the requisite expertise from study and experience under s 79 of the Evidence Act. Despite this error, the Court applied the proviso under s 6(1) of the Criminal Appeal Act 1912 (NSW). Critically, both experts (one for the Crown, one for the defence) agreed the deceased could have fallen either because she was pushed or because she tripped. The expert evidence did not advance the Crown's case in a meaningful way. The Court was satisfied beyond reasonable doubt that the remaining properly admitted evidence established the appellant's guilt.

Ground 4: Fresh evidence. The appellant sought to rely on a prior Court of Criminal Appeal decision criticising Associate Professor Cross and a book he had published, both of which pre-dated the trial. The Court held this material did not constitute fresh evidence because it could have been discovered with reasonable due diligence before or during trial. No miscarriage of justice was established on this ground.

Ground 5: Tendency and motive directions. The trial judge directed the jury that evidence from a witness (Ms Ingham) could be used both as tendency evidence and as evidence of motive. The Court declined to disturb this direction. It found the direction was clear and would not have confused the jury. Leave to argue this ground was refused under r 4 of the Criminal Appeal Rules (NSW). The Court expressly reserved the question of whether, in a criminal case, tendency evidence tendered by the Crown must be proved beyond reasonable doubt, noting it remains a live issue for a future case.

Orders Made

• The appeal against conviction ought be dismissed
• Leave to argue the ground of appeal regarding the jury direction should be refused
• The proviso to s 6 of the Criminal Appeal Act 1912 (NSW) ought be applied in relation to the error in admitting the evidence of Associate Professor Cross

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that even where a trial judge misdirects a jury on an alternative and unsupported basis of criminal liability, no miscarriage of justice will follow where the erroneously introduced theory was remote from the jury's actual deliberative task given the defence presented at trial.

  • Under s 79 of the Evidence Act 1995 (NSW), an expert's qualifications must be specifically linked to the opinions they give in the particular case. Titles of publications and general assertions of investigative experience are insufficient to establish expertise from "study and experience" where the connection between that experience and the specific evidence given is not explained.

  • The proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) may be applied where, despite an error in admitting expert evidence, the court is satisfied beyond reasonable doubt that the properly admitted evidence at trial proved the appellant's guilt, particularly where the improperly admitted evidence did not materially advance the Crown case.

  • Material that pre-dates a trial, including published decisions criticising a proposed expert witness, cannot constitute "fresh evidence" for appeal purposes if it could have been located through reasonable due diligence before or during the trial.

  • The question of whether tendency evidence led by the Crown in criminal proceedings must be proved beyond reasonable doubt was expressly left open, with the Court of Criminal Appeal signalling it remains unresolved and available for determination in a suitable future case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Appeal Rules (NSW), r 4
- Evidence Act 1995 (NSW), ss 79, 80, 91, 97

Cases:
- Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588
- Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
- HG v The Queen [1999] HCA 2; (1999) 197 CLR 414
- HML v The Queen [2008] HCA 16; (2008) 235 CLR 334
- Patel v The Queen [2012] HCA 29; (2012) 247 CLR 531
- James v The Queen [2014] HCA 6; (2014) 88 ALJR 427
- Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
- Evans v The Queen [2007] HCA 59; (2007) 235 CLR 521
- Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107
- Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
- Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
- Crampton v The Queen [2000] HCA 60; (2000) 206 CLR 161
- Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70; (2007) 159 FCR 397
- Peter Mickleberg v The Queen [1989] HCA 35; (1989) 167 CLR 259
- DJV v The Queen [2008] NSWCCA 272; (2008) 200 A Crim R 206
- Lane v R [2013] NSWCCA 317
- Chand v R [2