AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 3 March 2014

R v Paterson (No 4)

[2014] NSWSC 162

Sexual offencesHomicide
CRIMINAL LAW TRIAL APPLICATION FOR DIRECTED VERDICTS LIES BY ACCUSED WHETHER RELEVANT TEST MET

Citation: R v Paterson (No 4) [2014] NSWSC 162
Court: Supreme Court of New South Wales
Date: 3 March 2014
Judge: Bellew J

Background

The accused faced trial on two counts: the murder of a woman whose naked body was found in the Royal National Park on 1 February 1992, and aggravated sexual assault of the same woman. His co-accused had already pleaded guilty to murder before trial commenced. The Crown alleged the accused participated in a sexually motivated attack in which the deceased was driven to the park, sexually assaulted by multiple men, and killed.

The Crown's case was entirely circumstantial. Key evidence included DNA matching the accused found on swabs from the deceased's rectum and right breast, as well as on her fingernails. The Crown also sought to rely on statements the accused made in two police interviews in 2009 and 2011, which it alleged were lies demonstrating a consciousness of guilt.

At the close of the Crown case, senior counsel for the accused applied for directed verdicts of not guilty on both counts and the statutory alternatives. Bellew J heard submissions from both parties and reserved judgment before delivering this ruling.

  • Whether the evidence adduced by the Crown, taken at its highest, was capable of establishing the elements of the murder charge, including the accused's participation and requisite intent.
  • Whether the evidence was capable of proving the element of lack of consent for the aggravated sexual assault charge.
  • Whether the circumstance of aggravation (being in company) was sufficiently established.
  • What test applies when a trial judge is asked to direct a verdict of not guilty at the close of the Crown case.
  • Whether alleged lies by the accused in police interviews were capable of constituting evidence of consciousness of guilt.

Decision

The test for a directed verdict

Bellew J confirmed the applicable standard: a directed verdict is appropriate where the evidence, assessed at its highest in favour of the Crown, is not capable of sustaining a conviction. This is not a question of whether the jury would convict, but whether the evidence could rationally support that outcome. The court reviewed authorities including Doney v R (1990) 171 CLR 207 and R v Hillier (2007) 228 CLR 618 in applying this threshold.

Murder count

On the murder charge, Bellew J found that while the accused's DNA placed him in contact with the deceased, the evidence was not capable of establishing beyond reasonable doubt that he participated in the act that caused her death. The Crown's case required the jury to infer that the accused either struck the deceased or assisted in restraining her while she was struck. Bellew J found that the available evidence could not sustain that inference to the required standard, even taking the Crown's case at its highest.

Consciousness of guilt through lies

The Crown sought to use statements made by the accused in police interviews, said to be contradicted by later recorded telephone conversations, as evidence of consciousness of guilt. Bellew J applied the test from Edwards v R (1993) 178 CLR 193, which requires that the lies were deliberate, the accused knew the truth, and the lies were told to deflect suspicion. The court was not satisfied that this test was met in a way that added materially to the Crown's circumstantial case.

Aggravated sexual assault count

On the sexual assault charge, the Crown's case depended critically on establishing lack of consent. To support this element, the Crown argued the deceased had struggled with her attackers, pointing to a broken rib and the presence of the accused's DNA on her fingernails. However, the forensic pathologist, Professor Duflou, gave evidence that there was very little to indicate a struggle had occurred. He found no injuries suggestive of forced intercourse and no external bruising consistent with a struggle, despite specifically examining for those signs. Bellew J concluded that the evidence as a whole could not sustain an inference that a struggle took place, and therefore could not establish the lack of consent element. As that element failed, it was unnecessary to address the circumstance of aggravation.

Orders Made

  • Directed verdict of not guilty on Count 1 (murder).
  • Directed verdict of not guilty on Count 2 (aggravated sexual assault).
  • Directed verdicts of not guilty on the statutory alternatives to both counts.

Key Takeaways

  • At the close of the Crown case, the test for a directed verdict requires the trial judge to assess whether the evidence, taken at its highest, is capable of rationally supporting a conviction. It is not a question of predicting what a jury would actually decide.
  • To use an accused's lies as evidence of consciousness of guilt in a circumstantial case, the Crown must satisfy the Edwards v R requirements: the lie must be deliberate, the accused must have known the truth, and the lie must have been told to deflect suspicion rather than for some other reason.
  • Where the Crown's theory of lack of consent rests on an inference of struggle, forensic pathology evidence finding no signs of forced intercourse or physical resistance can be fatal to that element of the charge, even when DNA evidence places the accused at the scene.
  • A directed verdict remains available even in serious cases where DNA evidence links an accused to the deceased, if that evidence does not, by itself or in combination with other evidence, raise an inference capable of proving each essential element.
  • The presence of a co-accused's guilty plea does not, of itself, supply the evidentiary gap in a case against a remaining accused where independent proof of that person's participation in the relevant acts is lacking.

Legislation and Cases Referenced

Cases:
- Attorney-General's Reference (No 1 of 1983) [1983] 2 VR 410
- Doney v R (1990) 171 CLR 207
- Edwards v R (1993) 178 CLR 193
- R v Bilick and Starke (1984) 36 SASR 321
- R v Heyde (1990) 20 NSWLR 234
- R v Hillier (2007) 228 CLR 618
- R v JMR (1991) 57 A Crim R 39
- R v Lane (No 13) [2010] NSWSC 1540
- R v Lane [2011] NSWCCA 157
- R v Lodhi [2006] NSWSC 672
- R v Paterson [2014] NSWSC 29 (earlier interlocutory judgment in same proceedings)
- Saffron v Director of Public Prosecutions; Allen v Director of Public Prosecutions (1989) 16 NSWLR 397