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22
Court of Criminal Appeal 26 November 1999

R v Serratore [1999] NSWCCA 377 revised - 01

[1999] NSWCCA 377

Also reported as (1999) 48 NSWLR 101
Homicide
CRIMINAL LAW MURDER APPEAL AGAINST CONVICTION CIRCUMSTANTIAL EVIDENCE CASE APPEAL ALLOWED NEW TRIAL OR JUDGMENT OF ACQUITTAL

Citation: R v Serratore [1999] NSWCCA 377 (reported at 48 NSWLR 101)
Court: NSW Court of Criminal Appeal
Date: 26 November 1999
Judge(s): Dunford J, Greg James J, Smart AJ

Background

The appellant was convicted of murdering his former girlfriend following the discovery of her partly decomposed body on 2 April 1995. The relationship had been volatile, marked by violence and jealousy, and an Apprehended Violence Order had been made against the appellant in late 1994. Evidence indicated the deceased had agreed to meet the appellant on 29 March 1995 and did not return home that evening.

The Crown's case was entirely circumstantial. It rested on evidence including that the appellant left work early on 29 March, that carpet fibres from his motor vehicle matched fibres found on the deceased's boots, and that the deceased most likely died that evening. Evidence was also led that the appellant had asked a third party (referred to as BR) to kidnap and kill the deceased in late 1994, and had subsequently reaffirmed his intention to do so in early 1995.

The Crown put its case on two alternative bases under a single count: that the appellant either killed the deceased himself, or arranged for someone else to do so. The appellant denied all involvement, disputed the fibre identification and date of death evidence through expert witnesses, and denied the conversations with BR.

  • Whether the indictment was defective for pleading one count where the Crown alleged two alternative modes of participation (principal offender or procurer)
  • Whether the trial judge erred in admitting hearsay evidence of the relationship between the appellant and the deceased, and in excluding a police running sheet
  • Whether warnings about the reliability of certain witnesses were required and whether adequate directions were given
  • Whether there was a case to answer
  • Whether the trial judge's direction requiring the jury to be satisfied beyond reasonable doubt of four specific "essential circumstances" before convicting on either basis of the Crown case was correct, and whether the verdict was unsafe

Decision

The Court of Criminal Appeal held that the single-count indictment was entirely proper. A single charge of murder may accommodate alternative modes of participation, and the Crown was entitled to put its case on the basis that the appellant either killed the deceased himself or procured another to do so.

On the evidentiary grounds, the Court upheld the trial judge's rulings. The hearsay evidence concerning the relationship between the appellant and the deceased was properly admitted, and the police running sheet was properly excluded.

The central ground on which the appeal succeeded concerned the trial judge's directions on circumstantial evidence. The jury was told it had to be satisfied beyond reasonable doubt of four "essential circumstances" before it could convict on either basis of the Crown case. The Court found this direction was wrong: not all four circumstances were essential to conviction on the procuring basis. The direction was thus unduly favourable to the appellant and unduly restrictive of the Crown. Although the jury had been misdirected in the appellant's favour, the error still constituted a miscarriage of justice because it meant the conviction was not returned in accordance with a correct legal direction. The Court was satisfied it had been open to the jury to convict on the evidence, but not in accordance with the directions actually given.

Smart AJ dissented on the order, taking the view that the appeal should be dismissed. His Honour considered that requiring proof of circumstances 3 and 4 (death on 29 March 1995 and presence in the appellant's vehicle) remained necessary on the Crown's case that the appellant himself killed the deceased, and that the evidence adduced at trial was sufficient to support the verdict. The majority, however, allowed the appeal and ordered a new trial rather than entering a judgment of acquittal.

Orders Made

  • Appeal allowed
  • Conviction and sentence set aside
  • New trial ordered

Key Takeaways

  • A single murder count may validly encompass alternative modes of participation, such as committing the killing personally or procuring another to do so, without requiring separate counts for each alternative.
  • Where a trial judge's directions on the essential elements a jury must find are unduly favourable to an accused and unduly restrictive of the Crown, this can still constitute a miscarriage of justice even though the accused benefited from the error.
  • In a wholly circumstantial case, not every intermediate fact identified by a trial judge will necessarily be "essential" to all alternative bases of the Crown case. Directions treating such facts as universally essential may misdirect the jury.
  • Hearsay evidence of a volatile and threatening relationship between an accused and a deceased victim may be admissible in a murder trial where it satisfies the relevant provisions of the Evidence Act 1995.
  • The Court of Criminal Appeal confirmed that where a misdirection, even one in the accused's favour, means the verdict was not reached in accordance with a correct direction, the appropriate remedy may be a new trial rather than an acquittal, depending on whether the evidence could have supported conviction under a correct direction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 2, 346, 378, 567
- Evidence Act 1995 (NSW), ss 55, 56, 59, 65, 66, 69, 72, 108, 135, 136, 137, 165
- Criminal Appeal Act 1912 (NSW), ss 6 and 8

Cases:
- Shepherd v The Queen (1990) 170 CLR 573
- Wilson v The Queen (1970) 123 CLR 334
- Thatcher v The Queen (1987) 39 DLR (4th) 275
- R v Giannetto [1997] 1 Cr App R 1
- R v Glynn (1994) 33 NSWLR 139
- R v White (1989) 41 A Crim R 237
- R v Sourelos (CCA, unreported, 6 September 1984)
- R v Leivers & Ballinger (1998) 101 A Crim R 175
- R v Lock (1997) 91 A Crim R 356
- R v Dean (unreported, Dunford J, 12 March 1997)
- R v Mankotia (unreported, Sperling J, 27 July 1998)
- Plomp v The Queen (1963) 110 CLR 234
- Parker v The Queen [1997] HCA 13, (1997) 186 CLR 494
- Doney v The Queen (1990) 171 CLR 207
- Osland v The Queen (1998) 159 ALR 170
- Fleming v The Queen [1998] HCA 68, (1998) 158 ALR 379