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Court of Criminal Appeal 16 October 2026

Early v R

[2026] NSWCCA 167

Homicide
CRIME APPEALS APPEAL AGAINST CONVICTION FROM JURY VERDICT

Citation: Early v R [2026] NSWCCA 167
Court: Court of Criminal Appeal
Date: 16 October 2026
Judge(s): Free JA; Adams CJ at CL; Chen J (principal judgment)

Background

The applicant was convicted in June 2023 of the murder of Raymond Keam, whose body was found in Alison Park, Randwick, in the early hours of 13 January 1987. The Crown case was that the applicant, who lived directly opposite the park, assaulted Mr Keam either personally or as part of a joint criminal enterprise, motivated by hostility towards men believed to be homosexual. The case rested on a combination of circumstantial evidence, tendency evidence, and admissions the applicant allegedly made to his brother and to a fellow inmate decades later.

The applicant had previously been known by a different name and was charged in 2021, more than three decades after the death. The notice of appeal was filed out of time, and leave to appeal was required on most grounds. The applicant raised five substantive grounds of appeal, along with an initially foreshadowed but ultimately abandoned ground concerning non-disclosure.

Legal Issues

  • Whether the admission of a hearsay statement containing a second-hand alleged admission by the applicant caused a miscarriage of justice in the absence of any limiting direction
  • Whether evidence from seven witnesses, said to have been victims of assaults in the park by unidentified persons, carried a significant risk of misuse by the jury as tendency evidence despite directions to the contrary
  • Whether a miscarriage of justice arose from consciousness of guilt reasoning in connection with the applicant's travel to Bundaberg on 13 January 1987, given no direction was given to the jury about that risk
  • Whether a miscarriage of justice arose from trial counsel's handling of Tom Brown's evidence, specifically the failure to deploy sentencing material and to cross-examine on a gaol call recording
  • Whether the prosecutor's closing address erroneously shifted the Crown's case from joint criminal enterprise to extended joint criminal enterprise, and whether the trial judge's directions failed to correct that
  • Whether the jury's verdict of guilty was unreasonable on the whole of the evidence

Decision

Time extension

The Court extended time for filing the notice of appeal. The applicant's solicitor explained the delay by reference to difficulties obtaining the trial record and the need for counsel to review voluminous material. The Crown did not strongly oppose the extension, and the interests of justice favoured it (at [10]).

Ground 1: Hearsay statement of Liza Fulmer

The Crown conceded that, had objection been taken, the second-hand hearsay admission contained in Ms Fulmer's statement would have been inadmissible under s 82 of the Evidence Act 1995 (NSW). The Court nonetheless held that no miscarriage of justice arose. The statement was equivocal, given Ms Fulmer expressed uncertainty about whether the words were spoken. The trial judge had given the jury a strong hearsay warning and clearly identified in a separate document which witnesses could be used for tendency purposes. Ms Fulmer was not among them. Substantially similar tendency evidence was in any event before the jury from multiple other witnesses, and other evidence about the applicant carrying a baton was adduced from four named tendency witnesses (at [46]-[54]).

Ground 2: Seven "non-tendency" witnesses and the risk of misuse

The applicant argued that features of the evidence from seven witnesses who described assaults or confrontations in the park carried a significant risk that the jury would treat them as tendency evidence despite directions to the contrary. The Court rejected this. The trial judge provided clear and legally correct directions, identifying these witnesses by name in a separate document titled "Not Tendency Evidence." The directions were unambiguous, and the premise that the jury could not be trusted to follow them was unsound. The Court also found that the approach adopted by trial counsel was a rational forensic decision: the evidence supported the submission that other groups, not connected to the applicant, were responsible for assaults in the park, raising a reasonable possibility that one of those groups had killed Mr Keam (at [58]-[81]).

Ground 3: Consciousness of guilt and the Bundaberg travel

The applicant argued that evidence of his travel to Bundaberg on 13 January 1987 carried a risk of consciousness of guilt reasoning and that the trial judge should have directed the jury against it. The Court held that no miscarriage arose. The evidence from the applicant's inquest testimony on this topic consisted of questions put to him that he denied; those denials were not evidence of the suggested motivation. The trial judge had directed the jury that questions are not evidence unless adopted. The trial judge had also ruled against the Crown's application to use the travel as consciousness of guilt evidence, a ruling that was not challenged. Critically, neither the Crown's closing address nor trial counsel sought any direction on this issue, and the absence of any such request was a strong indicator that no appreciable risk of impermissible reasoning existed in the atmosphere of the trial (at [82]-[112]).

Ground 4: Miscarriage from trial counsel's handling of Tom Brown's evidence

The applicant advanced two related complaints. First, that trial counsel failed to deploy or adequately deploy material from Mr Brown's sentencing proceedings bearing on his mental health history and drug use. Second, that trial counsel failed to cross-examine Mr Brown on a specific gaol call in which he discussed the prospect of receiving a reward tied to the usefulness of his evidence. The Court held that the evidence from the sentencing proceedings and the gaol call recording was admissible on appeal under ss 12(1)(b) and (c) of the Criminal Appeal Act 1912 (NSW) to demonstrate whether a departure from the essential requirements of the criminal process occurred, even though the material had been available to trial counsel (at [125]-[127]).

On the substance, the Court rejected both complaints. As to the sentencing material, the Court found objectively plausible forensic reasons for the approach taken. In particular, Mr Brown's father's letter noted that by the time of the relevant custodial contact in 2021, Mr Brown had been free of illegal drugs for nearly two years, and cross-examination on historical drug use could therefore have been counterproductive. As to the gaol call, trial counsel had cross-examined Mr Brown extensively on his financial motivation, the possible reward, and the inconsistency between his recantation to the Crown prosecutor and his trial evidence. Both counsel and the trial judge addressed the reward issue with the jury at length. The trial judge gave a specific warning under s 165(1)(e) of the Evidence Act that the jury must consider the possibility of reward when assessing Mr Brown's credibility and reliability. The Court also noted that playing the full gaol call could have been forensically damaging, given that immediately after the statement about rewards, Mr Brown said he was "compelled out of the right thing to do." In those circumstances, the approach adopted was a rational forensic decision. No miscarriage of justice arose (at [114]-[163]).

Ground 5: Joint criminal enterprise versus extended joint criminal enterprise

The applicant argued that a passage in the prosecutor's closing address effectively shifted the Crown's case to extended joint criminal enterprise by suggesting that an agreement to assault without more could ground a murder conviction. The Court disagreed. Reading the prosecutor's address in full, it was apparent the Crown consistently maintained that the applicant must have participated with the intention to kill or cause grievous bodily harm. The "Elements for Jury" document agreed by both parties set out the correct elements of joint criminal enterprise in conventional terms, the trial judge's written and oral directions were accepted by the applicant to be "unobjectionable," and the jury in fact requested and received those written directions. Trial counsel did not seek any corrective direction, suggesting the impugned passage did not carry the meaning attributed to it. No error or irregularity arose (at [164]-[184]).

Ground 6: Unreasonable verdict

The Court conducted an independent assessment of the sufficiency and quality of the whole of the evidence. It found that the verdict was not unreasonable. The absence of direct forensic or identification evidence placing the applicant at the park was addressed by the admissions evidence, which included Mr Brown's detailed account of matters not contained in any publicly available news article, and the applicant's own statement to his brother about having been in a fight in a park opposite where he lived. The medical evidence established that Mr Keam sustained heavy blows to the head, was savagely assaulted and kicked, and had his sternum stomped and broken in half while on the ground. That evidence was available to the jury to infer an intention to cause grievous bodily harm. None of the individual matters raised by the applicant, nor their combination, caused the Court to entertain a reasonable doubt about guilt. It was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty (at [185]-[231]).

Orders Made

  • Time for the applicant to file his notice of appeal extended
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A hearsay statement that is equivocal, accompanied by a general hearsay warning, not attributed to a named tendency witness, and substantially duplicated by other unchallenged tendency evidence will not ordinarily constitute a material irregularity capable of realistically affecting the jury's verdict (at [46]-[54]).

  • Where trial counsel makes a considered forensic choice to leave objectionable evidence before the jury because it supports the defence case, an appellate court assessing a miscarriage of justice argument will evaluate that choice by reference to objective features of the trial process, not the subjective reasons of counsel; rational forensic decisions do not give rise to a miscarriage of justice (at [73]-[81], [162]).

  • The Court of Criminal Appeal confirmed that evidence relied upon to demonstrate the factual basis of a counsel-incompetence ground under s 6(1) of the Criminal Appeal Act 1912 (NSW) may be admitted under ss 12(1)(b) and (c) of that Act, even if the material was available at trial, provided it is received to show that the trial departed from essential requirements of the criminal process rather than to contradict the jury's verdict (at [125]-[127]).

  • Failure by trial counsel to seek a direction against consciousness of guilt reasoning is a strong indicator that, in the atmosphere of the trial, no appreciable risk of such reasoning existed, applying BQ v The King (2024) 279 CLR 124 at [56] (at [111]).

  • In a circumstantial murder case, evidence that a victim was stomped while on the ground causing the sternum to be broken in half, combined with multiple heavy blows and a savage overall assault, constitutes evidence from which a jury may properly infer an intention to cause grievous bodily harm, even where medical evidence suggests the fatal haemorrhage may have required only moderate force applied to a specific location (at [217]-[229]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18
- Criminal Appeal Act 1912 (NSW), ss 5, 6, 12
- Criminal Procedure Act 1986 (NSW), s 159
- Evidence Act 1995 (NSW), ss 65, 82, 137, 165
- Supreme Court (Criminal Appeal) Rules 2021 (NSW) , rr 3.1, 3.5, 4.15

Cases
- Ahmu v R; Director of Public Prosecutions v Ahmu [2014] NSWCCA 312
- Ali v The Queen [2005] HCA 8; 79 ALJR 662
- Allen v R [2020] NSWCCA 173
- Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
- BQ v The King (2024) 279 CLR 124; [2024] HCA 29
- Brawn v The King [2025] HCA 20; 99 ALJR 872
- Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7
- Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25
- Edwards v The Queen (1993) 178 CLR 193; [1993] HCA 63
- Farrugia v The King [2026] HCA 28
- Gauci v Federal Commissioner of Taxation (1975) 135 CLR 81; [1975] HCA 64
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Hamilton (a pseudonym) v R [2020] NSWCCA 80
- Hamilton (a pseudonym) v The Queen (2021) 274 CLR 531; [2021] HCA 33
- HCF v The Queen (2023) 280 CLR 596; [2023] HCA 35
- Hughes v R [2018] NSWCCA 2
- Huynh v The Queen [2013] HCA 6; 228 A Crim R 306
- LH v The King [2024] NSWCCA 165
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
- MM v The King [2023] NSWCCA 236
- Nudd v The Queen [2006] HCA 9; 80 ALJR 614
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Quinn v R [2023] NSWCCA 229
- R v Birks (1990) 19 NSWLR 67
- R v Ciantar (2006) 16 VR 26; [2006] VSCA 263
- R v Davidson (2009) 75 NSWLR 150; [2009] NSWCCA 150
- R v Hillier (2007) 228 CLR 618; [2007] HCA 13
- R v Keenan (2009) 236 CLR 397; [2009] HCA 1
- R v ZT (2025) 281 CLR 137; [2025] HCA 9
- Ridgeway v The King [2024] NSWCCA 85
- Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284
- Slattery v R [2023] NSWCCA 117
- Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640; [1975] HCA 54
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- Xie v The Queen [2021] NSWCCA 1; 386 ALR 371
- Zoneff v The Queen (2000) 200 CLR 234; [2000] HCA 28