R v Sinfield[2023] QCA 190

SUPREME COURT OF QUEENSLAND

1. [1]
   FLANAGAN JA:  I agree with Ryan J.
2. [2]
   BODDICE JA:  Ryan J has extensively summarised the relevant evidence and the issues at trial.  That summary, which I gratefully adopt, allows me to briefly state my reasons for dismissing the appeal.
3. [3]
   Whilst there were features of the evidence which could be consistent with the deceased’s residence being the subject of entry by an unknown person at the time the deceased suffered the fatal injuries, an independent assessment of the evidence as a whole supports the conclusion that it was open to the jury to exclude any such hypothesis beyond reasonable doubt.
4. [4]
   Once that hypothesis was excluded, it was open to the jury to be satisfied beyond reasonable doubt that it was the appellant who inflicted the fatal injuries to the deceased and that he did so with, at least, an intention to do grievous bodily harm.
5. [5]
   The verdict of the jury was not unreasonable.

Order

6. [6]
   I would order that:

1. The appeal be dismissed.

7. [7]
   RYAN J:  On 6 September 2019, after a nine-day jury trial, the appellant was convicted of the murder of Norma Ludlam, aged 75.  He appeals against his conviction.^[1]
8. [8]
   The deceased died in hospital, on 6 July 2015, after sustaining severe head injuries which fractured her skull and shed blood.  There was no suggestion that the injuries were accidental.
9. [9]
   The appellant and the deceased knew each other.  In the month before the deceased’s death, they were in regular contact.  It was the appellant who found the severely injured deceased on 4 July 2015 and called emergency services to her aid.
10. [10]
    The critical issue at trial was whether the appellant was the deceased’s killer.  If the jury were satisfied that he was, then they had to consider whether he had an intention to kill or do grievous bodily harm to her at the time he did the act or acts which killed her.  However, the deceased’s injuries were so severe that it could not reasonably be suggested that they were inflicted with anything less than an intention to do grievous bodily harm and the appellant’s conviction appeal focused on his identity as the deceased’s killer.
11. [11]
    The Crown case against the appellant was circumstantial.  The appellant did not give or call evidence.  The trial was conducted in such a way as to leave the jury with the question whether the Crown could exclude, beyond reasonable doubt, the possibility that the deceased had been killed by an intruder or intruders, not known to her, who entered her house to steal from her.
12. [12]
    The appellant’s ground of appeal is that his conviction was “unreasonable and unsupported by the evidence”.  He submitted that there was a hypothesis consistent with innocence available on the evidence which required a verdict of not guilty.
13. [13]
    In R v Mirotsos [2022] QCA 76 at [68], Bond JA, with whom Sofronoff P and Callaghan J agreed, set out the principles governing an appeal against conviction on the ground relied upon by the appellant.  In considering this appeal, I have applied all of those principles, in particular, those designated 3, 4, 7 and 8, as below (footnotes omitted):

“[68] The principles governing this ground of appeal may be summarised as follows:

…

3. The appellate court, in making an independent assessment of the whole of the evidence to determine whether it was open to the tribunal of act to be satisfied beyond reasonable doubt as to the guilt of the accused, must weigh the whole of the evidence (in particular, the competing evidence): see SKA v The Queen at [22] and [24].

4. An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open: see Fennell v The Queen (2019) 93 ALJR 1219 at [82] per Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ; and Coughlan v The Queen (2020) 267 CLR 654 at [55] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ.

…

7. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. And especially is that so in a case where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice: see Fennell v The Queen at [81].

8. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act to set aside a verdict based upon that evidence: see M v The Queen at 494, quoted with approval in MFA v The Queen (2002) 213 CLR 606 at [56]; R v Nguyen (2010) 242 CLR 491 at [33]; and Filippou v The Queen (2015) 256 CLR 47 at [12].”

14. [14]
    I have also applied the following statement from R v Baden-Clay (2016) 258 CLR 308 at [47] (citations omitted):

“For an inference to be reasonable, it “must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all of the facts in evidence”.  Further, “in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.””

15. [15]
    I have had regard to the following statement from R v Miller [2021] QCA 126 at [18]:

“An appellant who contends that the verdict of the jury was unreasonable or that it was unsupported by the evidence must identify the weaknesses in the evidence and must then also demonstrate that these weaknesses reduced the probative value of the evidence in such a way that the appellate court ought to conclude that even making full allowance for the advantages enjoyed by the jury there is a significant possibility that an innocent person has been convicted.”

16. [16]
    I considered and weighed all of the circumstances, in particular the competing circumstances, to determine whether it was open to the jury to draw the ultimate inference, beyond reasonable doubt, that the appellant was guilty of the murder of the deceased; or whether the evidence left open, as a reasonable possibility, that someone other than the appellant was her killer.
17. [17]
    For the reasons which follow, the evidence, viewed as a whole, bore no other reasonable hypothesis than that the appellant murdered the deceased.  The possibility that someone other than the appellant killed the deceased did not rise above the level of conjecture.  In my view, the jury’s verdict was a reasonable one, supported by the evidence.  There is no significant possibility that an innocent person has been convicted.  I would dismiss the appeal.

The evidence

18. [18]
    The evidence established that fatal head injuries were inflicted upon the deceased as she lay in bed, in the bedroom of her home, overnight on 3/4 July 2015.
19. [19]
    As to the possibility that the deceased was killed by someone other than the appellant, there had been two “break and enters” on or about 9 April 2015, around the corner from the deceased’s house.  The offender or offenders had entered via a slit in a flyscreen.  One of the deceased’s screen doors had a similar slit in its screen, although there was evidence that it was caused by the appellant while he was repairing the door.  Two bottles of alcohol, a purse and a mobile phone were stolen from one house.  Two bottles of alcohol were stolen from the other.
20. [20]
    Police seized the appellant’s mobile phone on 4 July 2015.  The phone’s call log had a single entry – a call to emergency services at 1.51 pm on 4 July 2015.  The log of calls made to and from the phone before then had been deleted.  The deceased was not included in the stored contacts on the defendant’s phone.  However, forensic analysis of the phone revealed that the deceased and her land line number had been stored in the appellant’s contacts, then deleted.  Also, the records of telephone contact between the deceased and the appellant showed almost daily contact between the appellant’s mobile or land line, and the deceased’s land line, between 7 June 2015 and 3 July 2015 – with the last contact at 8.46 pm on 3 July 2015, from the appellant’s mobile to the deceased’s landline.  That call lasted 13 seconds.  The deceased did not telephone the appellant on 2, 3 or 4 July 2015.  The appellant did not telephone the deceased on 4 July 2015.
21. [21]
    Mr and Mrs Gatt lived two houses away from the deceased and almost across the road from the appellant.  After the break in at their house (one of the two break-ins referred to above), the Gatts installed a CCTV to capture movement at the front of their house.  The evidence against the appellant included footage captured by the Gatts’ CCTV.  The evidence at trial also included CCTV footage from business venues.

The deceased’s treatment and death

22. [22]
    The deceased was treated in the Emergency Department (ED) of the local hospital.  She arrived at the ED at 2.42 pm on 4 July 2015.  Having regard to her injuries and neurological state, it was decided to treat her conservatively and palliatively.  She was pronounced dead at 6.28 pm on 6 July 2015.

Post-mortem examination and cause of death

23. [23]
    Dr Ong, pathologist, performed an autopsy on the deceased.  He gave detailed evidence of the results of the autopsy.  For the purposes of this appeal, it is enough to note the following:

1. The deceased was underweight.  She appeared thin and frail.
2. A small green plastic object, resembling a leaf with a stalk, and some crystal-like material was adhered to her head hair.
3. She had a prolapsed anus: her rectum (the immediate lining inside the anus) protruded through the anal opening.  The lining was susceptive to tearing and bleeding.  It was more fragile than the external layers of skin.
4. She was prescribed a drug-thinning medication (Warfarin).
5. Her head injuries included –

1. A laceration, 2.6 centimetres long, on her left temple; slightly curved and pointing downwards; which had been more likely caused by a blunt object rather than by an object with a sharp edge, like a knife.

1. It would be expected to bleed extensively.

2. A depressed (caved-in) skull fracture, underneath the laceration, measuring 1.7 x 1 centimetre, with another fracture, 0.7 centimetres long, at the centre.

1. The shape of the fracture suggested that the laceration above it was caused by a “weapon” with a blunt edge.
2. On the basis that the deceased had a degree of osteopenia, force towards the severe end (on range of mild, more great and severe) was required to cause the depressed fracture.
3. It could have been caused by a blow or a fall, onto a protruding object.
4. The dura was intact.

3. A stellate shaped injury, 4 x 5 x 2.5 centimetres behind the ear, with necrotic margins and a malodorous smell (indicating infection).

1. It would be expected to bleed even more extensively than the laceration in (i).

4. Bruising of the temporalis muscle, underneath the injury in (iii).
5. An ‘O’ shaped skull fracture/puncture defect, underneath the bruised muscle in (iv), measuring 3.8 x 3 centimetres – roughly the same size as a 50-cent piece – with radiating fractures from the defect, one of which joined the depressed fracture in (ii) and the other extending posteriorly for 4 centimetres.

1. Force at the severe end of the scale would be required to cause the fracture.
2. It was very likely that the impacting object was a similar shape to the shape of the fracture – though not necessarily of the same size: it might be smaller.
3. The dura was torn and there was a defect in the brain substance beneath this injury.  The defect measured 6 x 8 centimetres and was up to 3.5 centimetres deep.  There was unhealthy necrotic brain tissue – in keeping with underlying infection.  Surrounding the defect was subarachnoid haemorrhage (superficial haemorrhage on the brain surface).

6. Superficial skin loss, 8 x 3.5 centimetres, located above and behind the injury at (iii).

1. [24]
   The fracture in (i) above was sustained before the fracture in (v).  In Dr Ong’s view, taking the two fractures together, they were unlikely to have been the results of falls onto two protruding objects.
2. [25]
   There was a fracture of the cervical spine at C2, which could be the consequence of a too-sudden head movement, after being struck, or by way of trauma to the C1.  The spinal cord was injured as well.  Mild to moderate force would have caused the fracture.  Dr Ong could not say whether it occurred at the same time as the head injuries.
3. [26]
   There were contrecoup injuries to the brain on the right side.  The brain was swollen, which would have caused, at a minimum, altered consciousness, and would have affected breathing and heartbeat.
4. [27]
   The deceased’s heart was enlarged.  The chambers were dilated and there was scarring in the heart muscle.  There was some lung damage and pneumonia, likely caused by immobility.  The deceased’s other injuries included many bruises and abrasions, including to the deceased’s limbs and fingers.  Therapeutic levels of sedatives, anti-depressants and other medications were in her system.
5. [28]
   In Dr Ong’s opinion, the cause of the deceased’s death was her fairly severe head injuries due to blunt trauma, with secondary infection.
6. [29]
   Having regard to the nature and severity of the deceased’s injuries, and Dr Ong’s evidence, it could not reasonably be suggested that the injuries were inflicted with anything less than an intention to do her grievous bodily harm.

The appellant’s rental arrangement and his stated financial difficulties

30. [30]
    The appellant rented his house.  He signed a 12-month lease starting sometime in 2014.  His rent was $300 a week.  It was agreed that the landlord would leave some furniture in a shed on the property.
31. [31]
    The appellant signed a new lease, at increased rent ($320), in May 2015.
32. [32]
    In June 2015, late one night, the appellant sent the landlord a text message.  He told her that if she put up the rent again, he would have to move out because he could not afford it.  He said that it was within his legal right to start charging her to store her property in the shed at $60 a week.  She sent him a message in reply, stating, “Do you have a problem?”  She went to see him the next day, 22 June 2015.  She told him there was a water bill.  He collected the bill from her at her place of work, on 26 June 2015.

Cindy Groves – the deceased’s paid carer

33. [33]
    One of the deceased’s immediate neighbours was Ms Cindy Groves.
34. [34]
    When Ms Groves moved into her house with her son, in 2006, the deceased was living alone.  In 2013, “Rick, Bev and Pat” moved in.  Rick was the appellant.  Bev was his wife.  Pat was his mother.  Bev was the deceased’s carer.^[2]  After Rick, Bev and Pat lived with the deceased for a few months, they moved across the road.
35. [35]
    Ms Groves became the deceased’s carer in 2014 and thereafter saw her every day.  As carer, Ms Groves did whatever was needed, but her “big thing” was to make sure the deceased ate at least one meal a day.  At the same time, Ms Groves was caring for her own son, who has certain health issues, and who was home-schooled by her.  After she became the deceased’s official carer, in May 2015, Ms Groves was paid $118 per fortnight.
36. [36]
    Ms Groves was aware that the deceased was prescribed Endone and Oxycontin for pain.  She took a laxative, used a spray for Restless Legs Syndrome, and had boxes of Panadol.  Ms Groves was aware that the deceased’s restless legs caused her trouble sleeping.  The deceased kept her medication neatly stacked on a coffee table which was up against a wall in her bedroom.
37. [37]
    Ms Groves was aware that, every night, the deceased’s dog would sit on the end of the bed, and they would each have a piece of chocolate, which the deceased kept in her “sweetie drawer”.  She normally kept her handbag in the bedroom.  She was houseproud and tidy (as confirmed by other witnesses).
38. [38]
    Ms Groves delivered her second child on 3 July 2015.  She was caring for the deceased during her pregnancy, although her pregnancy was difficult, and she found it hard to manage her commitments.  Ms Groves was aware that other people assisted the deceased.  The deceased asked Ms Groves to help find her a new carer.
39. [39]
    In the last trimester of Ms Groves’ pregnancy, the appellant told her that she needed to hurry up and step down as the deceased’s carer.  He said he had been helping the deceased and he was taking over the caring role.  This conversation occurred in Ms Groves’ driveway, and it was the only conversation she had with the appellant about his becoming the deceased’s carer.
40. [40]
    The last time Ms Groves spoke to the deceased was at 6.57 pm on the evening of 3 July 2015.  She telephoned the deceased from her house.  The deceased seemed happy.  They talked about her day.  The deceased said the appellant had taken her shopping and bought her a packet of cigarettes or given her $20 or something.  The deceased told Ms Groves that the appellant was coming over at 9 pm to massage her legs and to give her some of Pat’s medication to help her catch up on her sleep.  Their call lasted 16 minutes and 5 seconds.

Michele Russon – the deceased’s house-cleaner

41. [41]
    Michele Russon was first engaged to clean the deceased’s house just before Christmas in 2014.  By 2015, she was cleaning the house weekly, on alternating Tuesdays and Wednesdays.  The deceased would leave her front wooden door open, and her front screen unlocked, for Ms Russon to enter.  She had a dog and a cat.  The dog was a typically friendly Labrador who loved people.
42. [42]
    Ms Russon knew Cindy Groves as the deceased’s paid carer.  She knew Ms Groves had been sick during her pregnancy and that the deceased had seen less of her.  The deceased asked Ms Russon to be her carer, approximately three months before her death.  Ms Russon declined.

Brenton Hibbs – Centacare support for the deceased

43. [43]
    Brenton Hibbs was employed by Centacare as a support worker.  The deceased was one of his clients.  He worked for her for three to four months – every second Friday, from 12 noon to 3 pm.  He was aware that her back screen door was always open – he thought for the cat.  Her front wooden door was usually open, but her front screen door was usually locked.
44. [44]
    On the Fridays he provided her with support, Mr Hibbs would sort out the deceased’s bills, which she paid in cash, and drive her around to pay them at the pool shop and the post office.  Then, he would take her to the local shopping centre for her groceries.

Caring help by Jean Kingsley and her husband Laurie

45. [45]
    Jean Kingsley met the deceased in hospital in April 2015.  Every weekday, from April 2015 until her death, Mrs Kingsley had contact with the deceased.  She provided a cooked meal to her, and her husband, Laurie, played with, and exercised the dog.
46. [46]
    When Mr Kingsley first met the dog, he thought the dog was going to “eat” him, but once she got to know him, she was fine.  The dog would always bark “in the beginning” when Mr Kingsley arrived at the deceased’s house, but once she got used to him, she did not bark.
47. [47]
    While their arrival time varied, it was usually around 11 am and they stayed four or five hours.
48. [48]
    Mr Kingsley’s evidence was that they saw the deceased two or three times a week, but not on weekends.
49. [49]
    Mrs Kingsley understood that the deceased needed surgery for a “dropped bowel”.  A surgeon asked Mrs Kingsley to “fix” the deceased by “pushing her bowel back in”, giving her an injection, and showering her.  Mrs Kingsley was trained as a nurse.  The injections were necessary in advance of certain surgery which was planned for the deceased.  Mrs Kingsley was also asked to assist with dressing changes.
50. [50]
    Mrs Kingsley gave evidence about breaking the deceased’s vase while she played with the deceased’s dog.  She threw a knitted toy at the dog.  It missed the dog, hit the wall, then hit the vase which hit the floor.  The vase was knocked off a stand between the kitchen and hallway (see exhibits 2, 39 and 40).  The deceased became upset.  Mrs Kingsley threw the broken pieces of the vase into the kitchen bin.
51. [51]
    On the Monday or Tuesday before the deceased was found injured (the evidence was inconsistent), Mrs Kingsley and her husband took the deceased to the Royal Brisbane Hospital and then brought her home.  On that day, the deceased introduced them to “a handyman bloke” (the appellant).  The appellant was putting a magnetic door on the back door of the deceased’s house, off her dining room.

July 2015

Thursday 2 July 2015 – around 10 am

52. [52]
    The appellant was at the local Centrelink office between 9.58 am and 10.23 am on 2 July 2015 (as per CCTV evidence).  He was wearing jeans, a red polo shirt and a blue and yellow hoodie/hooded sweatshirt.  He informed Centrelink that he intended to claim a carer allowance and was provided with the relevant paperwork.

2 July 2015 – 11.03 am

53. [53]
    Six hundred and fifty dollars was withdrawn from the deceased’s bank account via an ANZ ATM, leaving a balance of $62.91.

Friday 3 July 2015 – Morning

54. [54]
    At 7.01 am, the appellant’s mobile called the deceased’s landline.  The call lasted 1 minute and 40 seconds.
55. [55]
    The CCTV camera at the Gatts’ house showed a set of legs walking across the screen from the right (see exhibit 133) at 7.23.06 am.  Exhibit 96, an aerial view of the area, assists in understanding the location of the relevant properties.
56. [56]
    At 8.16 am, a person in dark pants walked from right to left across the screen (exhibit 134).
57. [57]
    At 8.33 am, a person in long pants walked in front of the Gatts’ letterbox (exhibit 135).
58. [58]
    At 8.46 am, a person in long pants walked from right to left across the screen (exhibit 136).
59. [59]
    At 9.41 am, a person in long pants walked from left to right across the screen (exhibit 137).
60. [60]
    The appellant was at the deceased’s house on 3 July 2015, fixing her screen door, when the Kingsleys arrived that day.  Mrs Kingsley asked the appellant what was wrong with the door.  He said he had put a hole in the screen.  He said there was a problem with the door at the top left.
61. [61]
    Mrs Kingsley agreed (in cross-examination) that she had gone to the deceased’s house to change her dressing on the morning of 3 July 2015.  She agreed that the deceased told her that she (the deceased) was having trouble having a shower, so she called the appellant who came over straight away.  Mrs Kingsley agreed that she asked the deceased why she called the appellant when she knew the Kingsleys were coming.  The deceased told her she was in too much pain, and she could not wait for the Kingsleys.  The deceased also told her that the appellant showered her and lay her on the bed.  She said she felt very embarrassed.  The appellant told her not to worry: he had seen it all before.  He tried to push her bowel into place but “it didn’t go in”.  The appellant dressed the deceased and left.
62. [62]
    The parties admitted that the deceased made no phone calls to the appellant on 2, 3 or 4 July 2015 but of course that did not prove that he did not assist her on 3 July 2015.

3 July 2015 – midday to 3.37 pm

63. [63]
    The deceased did not seem “okay” to Mr or Mrs Kingsley.  They took her to the doctor at a shopping centre “just down from her place”.  The parties admitted that the deceased attended a medical appointment at 12.00 pm on 3 July 2015.
64. [64]
    They were away for a couple of hours, before returning her home.
65. [65]
    While at the appointment, Mr Hibbs (from Centrecare) visited the deceased’s house.  He arrived to find a note on her front “wire” door which said, “Gone shopping”.  The wooden door was open, as usual.  Mr Hibbs opened the wire door and the dog barked, so he decided not to go in.  He waited 45 minutes, until 12.45 pm, in case the deceased returned home – but she did not.
66. [66]
    Russell Gould was the deceased’s next-door neighbour.  He knew her and her Labrador.  He described the Labrador as having a very good temperament.  It was a very good guard because it would always “tell” when someone was around the house, especially when they were fishing out the back.  (There was a canal at the rear of the deceased’s house.)
67. [67]
    On 3 July 2015, he came home for lunch to pick up some gear.  He arrived home at about 12 pm and stayed 15 to 30 minutes.  He noticed a car parked between his house and the deceased’s driveway.  It was a car he had not seen before in the cul-de-sac.  He saw a man in the car.
68. [68]
    Ronald Hazelden delivered catalogues, including to the deceased, every ten weeks.  He would return to collect the catalogues, and any orders from them, a little later.  Mr Hazelden drove a dark vehicle.  On 3 July 2015 at 1 pm, he visited the deceased’s house with his young son, to collect a catalogue.  Usually, he would knock on her door to collect the catalogue but, on this day, it was at her front door.  It was collected, and he and his son left.
69. [69]
    At 1.43 pm, the appellant’s mobile called the deceased’s landline.  The call lasted 2 minutes and 43 seconds.
70. [70]
    After the Kingsleys and the deceased came home from her doctor’s appointment, the appellant asked Mr Kingsley to drop him off at the post office.  They left together, returning in about half an hour.  Mr Kingsley re-entered the deceased’s house.  The appellant did not.
71. [71]
    During the trip, the appellant told Mr Kingsley that he could fix the deceased up, because he was an “RN”.  He told Mr Kingsley he was qualified to do that work and that he was going to be the deceased’s carer.
72. [72]
    When Mr Kingsley returned to the deceased’s home, he said, just casually, in front of the deceased, that he had heard the appellant was going to be her carer.  Mrs Kingsley recalled the deceased saying “No, he’s not” and becoming upset.  Mr Kingsley said that “at first” the deceased did not want to be cared for by him.  She said something like, “He’s a man.  He’s only a man”.
73. [73]
    Mr and Mrs Kingsley left the deceased’s home, promising to return with a roast chicken dinner.
74. [74]
    Aaron Benecke serviced the deceased’s swimming pool monthly.  On 3 July 2015, he saw her at the local pool shop.  She was with a man he had not seen before.  They arrived in a red Fairlane, which was the deceased’s car.  The deceased stayed in the car while the man came into the shop.  According to Mr Benecke, the man produced two $50 notes to pay the $45 bill.  Mr Benecke went out of the shop to speak to the deceased – because he knew she was short of money, and he wanted to see that it was “all above board”.  She told him she wanted to be in credit.  He said, physically, she was not very well and that she was not very happy.
75. [75]
    The parties admitted that the appellant and the deceased were at the pool shop at 3.25 pm, and that the appellant paid $70 cash on the deceased’s account.
76. [76]
    CCTV footage showed the appellant alone at the post office at 3.37 pm, wearing jeans, a red polo shirt and a blue and yellow hoodie.

3 July 2015 – 4 pm – 6.17 pm

77. [77]
    The appellant was at the local shopping centre with the deceased at 4 pm.  While there, the deceased spent $55.85 in cash and the appellant returned the water bill to his landlord together with a payment receipt.
78. [78]
    Stills taken from CCTV footage show the appellant pushing the deceased in a trolley (exhibit 124).  They left the shopping centre at about 5.06 pm.
79. [79]
    The Gatts’ CCTV picked up a red car going past the deceased’s house at 5.27 pm (exhibit 138).  At 5.32 pm, the car was travelling in the opposite direction (exhibit 139).
80. [80]
    At 6.17 pm, the appellant’s mobile called the deceased’s landline.  The call lasted 2 minutes and 56 seconds.
81. [81]
    Mr and Mrs Kingsley were back at the deceased’s house sometime between 7 and 8 pm.  Only Mr Kingsley got out of their car.  He knocked on the deceased’s door, but there was no answer.  Normally the deceased would answer straight away.  Nor did the dog bark at his knocking.  The door was open.  Mr Kingsley went in.  The deceased was near the kitchen/dining room, sitting on a seat with a cushion.  He divided the food he and his wife had prepared, which was on a plate, into two, so that the deceased could make two meals out of it.  He heated part of it up for her.  He was in the house for 10 to 12 minutes.  Mr Kingsley told the deceased that he would see her on Monday.  He left the house, shutting the front door and the screen door.  He did not recall locking the front door.

3 July 2015 – 8.46 pm

82. [82]
    A note on the calendar in the appellant’s house for 3 July 2015 read “call Norma 8.45 pm”.  Admitted phone records showed a 13 second call from the appellant’s mobile to the deceased’s landline at 8.46 pm on that date.

Ms Groves went into labour and delivered her baby

83. [83]
    Ms Groves went into labour on the night of 3 July 2015.  Her mother took her to the hospital.  They arrived there at about 11.10 pm.  Her father stayed with her son.  Ms Groves delivered her baby at 11.58 pm and was home again by 7.15/7.30 am the next day, Saturday 4 July 2015.

Ms Groves’ father stayed at her house overnight 3 and 4 July 2015

84. [84]
    Mr Groves fell asleep in his daughter’s loungeroom at about midnight.  The loungeroom faced the back lawn of the house and was close to the deceased’s bedroom.  The only thing he heard that night was his dog bark once.  The dog was outside in the back yard when he barked.  Mr Groves did not bring him inside.

Ms Groves’ mother was at her house from about 3.20 am on 4 July 2015

85. [85]
    Ms Groves’ mother stayed with Ms Groves at the hospital until the early hours of 4 July 2015.  She then went back to Ms Groves’ house, arriving at about 3.20 am.  She lay down until 5.30 or 6 am (she did not say whether she slept or not).  Then she got up and waited for her daughter to arrive home.  Although she heard nothing unusual after 3.20 am, she heard her daughter’s dog bark a couple of times after she lay down.  The dog was an outside dog who stayed in the backyard.

Ms Clarke heard screams overnight on 3 and 4 July 2015

86. [86]
    Kaylene Clarke had been living in the street adjacent to the deceased’s for about four years by July 2015.  She only had a little to do with the deceased.
87. [87]
    In July 2015, Ms Clarke’s health was not good.  She was taking prescription medication.
88. [88]
    She heard an argument and a woman scream on the night of 3/4 July 2015.  She said:^[3]

“The dogs started barking, and then I started to hear an argument between two people.  And I was in bed.  I got up because it had actually got louder.  And then I got out of my bedroom and I heard the scream and I got to the pool table [her bedroom was on the left-hand side of her house, as one looked at it from the street] …

…

… The dogs [she confirmed, plural] started barking from the right-hand side coming down her street … If somebody was going down there at night, those dogs were always barking …

… And then I heard Norma’s dog start to bark, which I did recognise.  I knew it was her dog.  And then – that’s when all the voices were.”

89. [89]
    She could not say accurately what time it was.  She confirmed that the noise was progressing down the street.  The voices were clear enough for her to understand.  She was not sure where they were coming from.  They were a male and female voice.  She heard the following:^[4]

“The male was saying, he was saying, “Where the fuck is it?”  And the female was saying, “Get out.”  And then it only went on for a maximum of about three minutes.  Like, it didn’t go for long.  And then there was just this almighty scream.  It was just something that you’d never forget; this scream.”

90. [90]
    She thought the scream came from the area of the intersection of her street and the deceased’s street.
91. [91]
    After “it” finished, Ms Clarke went to her loungeroom window, from which she could see the intersection.  She could see the deceased’s light on – but that was not unusual.  She looked out through her garage window, down to the end of, and past, the street, but she could not see any activity.  She sat down and may have had a cigarette; checked for activity again (but saw none); and went back and lay down.
92. [92]
    On 4 July 2015, after becoming aware of matters at the deceased’s house, she told police about the scream.
93. [93]
    In cross-examination, she agreed that her police statement stated that she went to bed at 8.20 pm on 3 July 2015 and was woken by her dog barking at 2 am; but she said she might have been wrong about the time.  She agreed that she had given more than one statement to police.  She agreed that in a statement she provided on 21 July 2015 she said she heard two males and one female.  She explained that the voices she heard varied in tone and it sounded like there might have been two males, but she was not sure.

The deceased’s other neighbours’ recollection of the night of 3 and 4 July 2015

94. [94]
    Kim Rayner lived with Mr Gould, next door to the deceased.  Ms Rayner did not go to sleep on the night of 3/4 July 2015 until about 3.30 am on 4 July 2015 and woke “just before 12-ish”.  She did not hear anything unusual on the night of 3 and 4 July 2015.  Nor did Mr Gould.
95. [95]
    Susette Gane, who lived next door to the Goulds, heard nothing unusual in the neighbourhood on the night of 3/4 July 2015.  But at about 4 in the morning, the two dogs in the house “went off quite loudly”.  They were both outside at the time.  Their barking woke her.  They would not stop on verbal command, so Ms Gane brought them inside with her.  Ms Gane is partially deaf in her left ear.
96. [96]
    Norman Barrett, Ms Gane’s partner, testified that his dogs started to bark at about 4 am and went on for a few minutes.  Neither he nor Ms Gane could calm them down.  They brought the dogs inside, but they still would not settle.  They were very agitated.  Apart from the dog barking, he noticed nothing unusual and nothing else woke him overnight.
97. [97]
    Mr Gatt heard nothing unusual on the night of 3/4 July 2015.  Mr Gatt was in the habit of going to bed at 9 pm and waking at 7 am.  Nor did Mrs Gatt hear or see anything unusual that night.
98. [98]
    Police called door-to-door to interview persons living in and around the area of the deceased’s house.  Only Kaylene Clarke said she heard a scream on the night of 3 and 4 July 2015.

4 July 2015 – from late morning until the call to triple 0

99. [99]
    The appellant went to Ms Groves’ door on 4 July 2015.  Ms Groves “wasn’t in a very good state” having just given birth.  She thought the appellant was at her door at about 11 or 11.30 am.  She was not sure about the time.  She knew it was mid-morning because she lay down for a couple of hours after she arrived home from hospital.
100. [100]
     She spoke to the appellant through the screen.  He told her he was concerned about the deceased and asked Ms Groves to check on her.  She asked the appellant whether the deceased’s front door was closed – because she and the deceased had an arrangement that, if the front timber door was shut, the deceased was either out or she was fine.  Ms Groves told the appellant she was sure the deceased was fine.  She told him she had spoken to the deceased the night before and she was fine and happy.
101. [101]
     The appellant asked for keys to the deceased’s house.  Ms Groves told him that the deceased always kept her back door into the living room open to let her cat in.  Ms Groves had never seen that door closed.  Mr Benecke gave evidence consistent with Ms Groves’ evidence about the state of the doors.  He said that most of the time, in the eight months to July 2015 when he serviced the deceased’s pool monthly, the back doors of the house were open to allow the dog to get in and out.  Also, as above, other witnesses gave evidence about the deceased leaving a door open for her pets.
102. [102]
     After speaking with Ms Groves, the appellant walked off in the direction of the deceased’s house.
103. [103]
     Ms Groves saw the appellant again at her door not long thereafter.  She could not remember whether he asked her about keys on the first or second occasion she saw him.
104. [104]
     There was no challenge to Ms Groves estimate of the time the appellant went to her house on 4 July to ask about keys to the deceased’s house.
105. [105]
     The Gatts’ CCTV footage showed a person wearing long dark pants walking from the left to the right of the screen at 11.23 am.  At 11.25 am, a person in long dark pants walked from the right of the screen to the left and can be seen in the still to the left of the letterbox.  At 11.44 am, they were between the letterbox and a palm tree; and visible again at 11.45 (exhibits 141, 142, 143,144).
106. [106]
     The Gatts’ CCTV footage showed a person wearing long dark pants walking from the left to the right of the screen, near the letterbox, at 12.26 pm (exhibits 145 and 146).  At 12.30 pm, a person wearing long dark pants walked from right to left across the screen, towards the left back of the four-wheel drive (exhibit 147).
107. [107]
     Mr Hazelden went to the deceased’s house just after lunch – between 12 and 1 pm of 4 July 2015.  He went there to drop off an envelope.  He rang the bell twice and knocked but there was no answer.  He heard “a bit of noise in there” but he did not worry about it.  He waited a bit longer and knocked again.  There was no answer.  He still heard a bit of noise.  He heard no one talking.  He thought it might have been the dog or the cat.  It was like a shuffling noise.
108. [108]
     While he was there, “a gentleman” was coming up to the front door.  The gentleman said, “Not again”.  Mr Hazelden did not know who he was.  When asked what the man did, he said:^[5]

“Well, he went – he went into the – towards the – into the house where the fence – and he looked through the – had a quick look through the fence and he was there for a while.  And then he couldn’t see nothing.  Then he come up to the front door.  He opened the screen door and – but the front door was locked so – I don’t know who he was so I didn’t – I didn’t think at the time.”

109. [109]
     The man left and Mr Hazelden left, after putting the envelope in the letterbox.
110. [110]
     It was accepted that the person seen by Mr Hazelden was the appellant.  It was suggested to Mr Hazelden that the appellant said “Knock again” not, “Not again”, but he did not accept that suggestion.

The appellant’s triple 0 call

111. [111]
     The Gatts’ CCTV captured a person wearing long dark pants walking from the left to the right of the screen at 1.48 pm (exhibit 148).
112. [112]
     The appellant called triple 0 at 1.51 pm.  Exhibit 128 is the audio recording of his call.  He told the operator that he had been to the deceased’s house over the past 5 hours to see whether she was home.  He said, “I went through the back and came out, I found she’s unconscious or uh she’s just like been hit”.
113. [113]
     He agreed that he had seen an obvious injury on her, “on top of her head”.  He said the deceased was rousable and breathing and that her breathing was completely normal, but she was not alert.  He was asked whether the deceased had a history of heart problems and he said, “yes”.  The operator told the appellant to try to reassure the deceased that help was on its way.  Throughout the call, the appellant asked the deceased to squeeze his hand.
114. [114]
     The appellant said that the deceased was on the floor, on her back.  He told the operator that it was “a mess in here”.  He said it looked like there was a lot of blood coming from the deceased’s head.  He was advised to put pressure on any wound that was actively bleeding with a clean hand towel or dry cloth.  A little after 8 minutes into the call, the appellant told the operator that he thought the deceased wanted to get up.  It seems that he made attempts to lift her – but said he could not lift her properly.
115. [115]
     He told the operator that the last time he visited the deceased was “yesterday”.  Not long thereafter, the paramedics arrived.

Ambulance officers were called to the injured deceased at about 1.55 pm on 4 July 2015

116. [116]
     On 4 July 2015, at 1.55 pm, in response to an emergency call, Ms Vollmerhause, an advanced care paramedic, and her partner, Ms Pickering, travelled by ambulance to the deceased’s house.  They were told they were attending to “an unconscious head injury patient”.
117. [117]
     No one was at the front of the house when they arrived, but a “gentleman”, the appellant, was just inside the front door.  The screen door to the house was closed but not locked.  The main door was open.  The appellant was struggling with a dog.  Pickering asked him where the patient was, and he pointed to the main bedroom.
118. [118]
     Vollmerhause went into the main bedroom of the house.  She saw the deceased lying on her back, on a rug or carpet runner on the floor, between the bed and a coffee table.  Her feet were towards the door.  Her head was up against a bedside cabinet – on a cushion.  Her ankles were crossed, and her hands were across her chest.  The room was “in disarray”; “quite a mess”; “up-ended”.  Pickering noticed that there were a lot of tablets scattered everywhere.
119. [119]
     The deceased was wearing pyjama or tracksuit pants.  She had a towel across her chest, but no top on.  Her hands were over the top of the towel.  She was wearing lots of jewellery and long, fake fingernails.  Her hair was matted with blood and there was a boggy mass on the left side of her head.  Fragments of fine glass or clear plastic were throughout her hair.
120. [120]
     The appellant was “sort of loitering” near the doorway.  Vollmerhause did not pay a lot of attention to him.  Pickering asked him who the deceased was, and he said he did not know her.  He said he had only just started working for her and that he had taken her grocery shopping the day before.  He said he did not know where to find her wallet (to allow the paramedics to identify her).  He could not answer any questions about the deceased’s medications, allergies, or history.  He was of no use to the paramedics, so they ignored him.
121. [121]
     Pickering agreed that the man at the house looked like “a deer in headlights”, consistent with looking like he was “in shock”.
122. [122]
     Vollmerhause and Pickering administered emergency treatment to the deceased, whose Glasgow Coma Score was then a five.  To get access to the deceased, they moved the coffee table mentioned above into the ensuite bathroom.  Within a couple of minutes of their arrival at the deceased’s house, another paramedic, Mr Babb, arrived.  He let himself into the house and saw the appellant inside.  He asked the appellant whether he knew what had happened.  The appellant said that he did not know or was not sure.
123. [123]
     The deceased was transported to the hospital.  Babb called the police.
124. [124]
     The deceased was wearing the pants she had been wearing on 3 July 2015.

Ms Groves’ mother spoke to the appellant

125. [125]
     Ms Groves’ mother saw an ambulance in the street.  She went outside and stood on the footpath, near the fence line between her daughter’s house and the deceased’s house.  The appellant was there.  She asked him what had happened.  He said, “I think Norma had a fall”.  Then he said he was going for a smoke and left.

Ms Groves is made aware of the situation at the deceased’s house

126. [126]
     Ms Groves’ mother went to Ms Groves’ house and told her that there were ambulances at the deceased’s house.  Ms Groves went to the deceased’s house and entered it.  She saw the deceased on the ground and the three paramedics.  The appellant was at the house.  He told Ms Groves that the deceased had a fall.
127. [127]
     Ms Groves observed that the state of the deceased’s bedroom was not as it normally was.  Things were messy and out-of-place.  The appellant said to Ms Groves that the house was a mess and that he had to clean up.  She said, “No – you can’t.  The police are coming”.
128. [128]
     She saw the deceased being taken away by ambulance.  Babb collected her details and the appellant’s details and told them not to enter.  She collected the key to the deceased’s front screen door from her house and locked the deceased’s front screen.  She locked the cat’s door but forgot to lock the laundry door.
129. [129]
     She was asked whether she saw the appellant when she returned to lock up the house.  She said she thought he was in the area, having a cigarette or something, but she was not focused on him.  She was focused on locking up the house.  And she wasn’t well, (having just given birth) and she wanted to go home.  She did not recall seeing the deceased’s dog but assumed she was there.

Kim Rayner’s conversation with the appellant

130. [130]
     Ms Rayner’s husband told her there was an ambulance at the deceased’s house.  She went to look and saw an ambulance in the deceased’s driveway.  As she approached the deceased’s house, she saw “a gentleman” sitting on a bench in the deceased’s garden (behind bushes to the left of the front door seen in exhibit 1).
131. [131]
     Ms Rayner asked the man what was happening.  He said, “I took Norma shopping this morning.  I helped to carry the shopping in.  She asked me to fix something [indistinct] went home and had some lunch and … I came back.  I found her and she must’ve fallen and hit her head”.  She was certain that the man told her he had taken the deceased shopping that morning – not the morning before.  Ms Rayner noticed that the man’s hands were shaking quite noticeably.  She did not see blood on him.

Babb returned to the house

132. [132]
     Later that day, Babb returned to the deceased’s house to collect his work car.  The appellant was there.  He did not recall seeing any blood on the appellant on either his first or second visit to the house, although he acknowledged that he was not paying a lot of attention to him.  He did not notice any difference in the way the deceased was dressed from the first to the second visit to the house.
133. [133]
     On his second trip to the house, he noticed a dog bowl, in the dining area, on the floor.  He had not entered the dining area on his first trip to the house.

Police arrived at the crime scene

134. [134]
     Detective Senior Constable Wheeler arrived at the deceased’s house at about 2.45 pm on 4 July 2015.  Senior Constable Brown arrived in a separate vehicle at about the same time.
135. [135]
     When Wheeler arrived, an ambulance vehicle was on the nature strip and three members of the public were in the area – one of whom was the appellant.
136. [136]
     The appellant was wearing a blue polo shirt, shorts, running shoes, and glasses.  He approached Wheeler’s vehicle and introduced himself to Wheeler.  He said numerous times that he was “Norma’s carer”.  He said that he had tried to raise her three or four times over the course of the day, at approximately 9 am, 11 am, 1 pm and 2 pm, by going to her house.  He said he thought the state of the front door of the house was odd – in that the deceased usually left the wooden door open but the security screen closed but on 4 July 2015, both doors were closed.  He said that on the first three visits, he knocked on the front door.  On his last visit, he peered through a rear window into her bedroom and saw Norma on the floor – between the bed and the wall – surrounded by clutter.  Wheeler took the appellant’s details and told him he would update him about the deceased’s condition later.
137. [137]
     Wheeler and Brown then looked for signs of forced entry. They found none although Wheeler became aware later that another officer (Senior Constable Coles) had found a cut in a fly screen.  Wheeler noticed that it was impossible to see into the main bedroom through a window at the back of the house.
138. [138]
     Wheeler was cross-examined about the reliability of his recollection:^[6]

“Is it possible that you are, in fact, mistaken about your recollection of what he said to you?  That he didn’t say to you that he looked in through the window, that he actually told you that he found her in the bedroom like that? --- No.  That’s what he said to me.

You’re confident that that’s ---? --- Yes

--- exactly what he said?”

139. [139]
     It was not suggested to Wheeler that the appellant did not say to him that he had seen the deceased through her bedroom window.
140. [140]
     Wheeler and Brown entered the house through the laundry door which was closed but unlocked.  Among other observations, Wheeler saw white paper towelling with liquid on it on one of the seats around the dining room table and a dried yellow substance – which Wheeler thought was dried urine – on the floor.  The area was cluttered.  There was a dog bowl and pet mat on the floor.  He could smell “off” food in the kitchen.  He went into the main bedroom and noticed the television in the bedroom was on high volume.
141. [141]
     A little later, a crime scene was declared.
142. [142]
     The cut in the flyscreen was adjacent to the door handles.  It was about 40 millimetres long.  Someone could put their finger through it to unlatch the door. It will be recalled that the appellant told Mrs Kingsley that he caused it.
143. [143]
     Detective Senior Constable Cameron, went to the appellant’s house and asked him to provide a witness statement to her, as the deceased’s carer.  She drove him to the police station for that purpose.  As they were driving together, they had a conversation, which was recorded.  A transcript of the recording was marked exhibit H for identification.
144. [144]
     During that conversation, the appellant said that the last time he saw the deceased was at 5.30 pm on 3 July 2015.  He was asked how she seemed, and he said, “great.  She helps us and we help her”.  He explained that he did not have his licence, so the deceased drove and he went with her.  He said a little later that the deceased was okay when he saw her and she said nothing to him about feeling unwell.
145. [145]
     He was asked what happened that day – 4 July 2015 – and he seemed to be saying that he went to the deceased’s house to fix her screen door –

“Right, I, I’ve got some w-, wire, net-, netting, right.  And I’m [indistinct] on her back door for the, the …dog, to stop the …

…

So went up, I got my screwdriver and my [indistinct] were on the table there [indistinct] down.”

146. [146]
     He explained his financial position.  He said he had recently learnt that his ex-wife had not told him the truth about herself and that she had been charged with murder back in the eighties.  She attacked the appellant and broke his thumb.  He “laid charges”.  He told police how much money he had spent on his ex and continued, “So it’s been, catch twenty-two that I’m going downhill with the money and when Norma came up and I was gonna take, and I though, yeah, that’d be good … Well Norma, I’m gonna be her carer … See, Cindy can’t do it by now … I’m gonna look after Norma … So I’m taking over from [Cindy], so that’s an extra hundred and twenty-one sixty, um a fortnight that’ll help me out … it’s not that much but um, but it’s, it helps out”.
147. [147]
     He explained that his rent had recently increased by 20 dollars a week and he and his mother were working out ways to save money, and he said he would take the carer’s position.
148. [148]
     He told police that the deceased needed help and that she had falls.  He said he had been there when she had a fall “the other day” and that she should not be driving, but he would not say a word to her about it because he needed transport (having lost his licence).
149. [149]
     He said he got into the deceased’s house, saw her lying there and called the ambulance.
150. [150]
     At the police station, police took possession of the appellant’s clothes and gave him a tracksuit to wear.  Photographs were taken of him, including of his hands.  Fingernail scrapings were taken from him.  His phone was seized (after 5 pm that day) and returned to him, after analysis, on 9 July 2015.

The appellant’s conversations with Gai Evans

151. [151]
     Gai Evans knew the appellant.  By July 2015, she had known him for one or two months and she had been to his house four or five times.  She called the appellant’s mother “Mum”.
152. [152]
     She did not know the deceased, but she had conversations with the appellant about “Norma”.  About a week before the deceased was found injured, the appellant told Ms Evans that Norma wanted him to be her carer, and that he was going to obtain all the paperwork necessary to become her fulltime carer.
153. [153]
     On the night of 4 July 2015, the appellant telephoned Ms Evans.  Ms Evans said he “asked if we could come over because Mum’s going to need us tomorrow, the – like, the next day”.  Ms Evans told the appellant that she could not come over then but would come over after dropping her two nieces off at school the following Monday.  (The “us” and “we” were Mrs Evans and her husband, Paul.)
154. [154]
     On the Monday, she and Paul dropped their nieces at school and went to the appellant’s house.  The appellant said, “Hurry up and come inside”.  His mother was also there.  They engaged in small talk and then the appellant said to Ms Evans, “I need you to take control.  I’m going to sign Mum over into your fulltime care, all the property, the house, the car, and everything … because these bastards are going to [frame me/pin this on me]”.^[7]
155. [155]
     Ms Evans asked the appellant what was going on.  She said he said, “he went down to the lady’s place, knocked on the door.  Nobody answered, but there was some fellow there with a black car [accepted at the trial to be Hazelden].  So the fellow with the black car left, and he went through the side gate, went around to the … back door and went inside, calling … Norma – Norma.  And there was no answer, so he kept going through the house.  And he went through the bedroom, and it was all upended, and blood and that was everywhere, and she was lying on her stomach on the floor” (my emphasis).  She said the blood (as described by the appellant) was “Everywhere, on the bed and wall”.  He told her Norma was only half-clothed – the bottom half.  He told Ms Evans that he turned the deceased onto her back.  He did not tell her that he put a pillow under the deceased’s head.  He did not tell her anything about an ambulance.
156. [156]
     She said he also said, “they’ve got a camera – there’s a police that lives next door to him that’s got a – a – some security camera or something facing his house to watch who’s coming and going, and he was going to send a letter to the Commissioner [indistinct] about it … Camera – yes, the police harassment”.
157. [157]
     The appellant told Ms Evans on the following Wednesday that when the police took him for an interview, they took his clothing and did not give it back.  He told Ms Evans that the police would never find the deceased’s blood on his clothing anyway.  He said he had cut his hand, and any blood on his clothing would be from that cut.  He said they were going to try to “frame” him, like they had before.  Ms Evans saw a “healed up” injury on the top of the appellant’s left wrist.

The appellant’s conversations with Paul Evans

158. [158]
     Mr Evans had known the appellant for a couple of months before July 2015.  Mr Evans had been to the house occupied by the appellant, his mother, and his partner.  The appellant spoke to Mr Evans about his rent going up and said he was thinking about moving to the bush and getting a farm house.  He told Mr Evans he had found a three-bedroom house with cheaper rent.
159. [159]
     Mr Evans was aware that the appellant was assisting the deceased.  The appellant told Mr Evans he was thinking about caring for her, just before the deceased was found injured.
160. [160]
     Mr Evans gave evidence of a conversation he and his wife had with the appellant after the deceased had been found injured.  The appellant told them that he had gone to the deceased’s house that morning to check on her.  When he got there, there was a tall fellow in a black car in the driveway.  He said he asked the person who he was.  The person said he had been knocking on the door; he could hear moaning; but no-one was answering.  The person said to the appellant, “Now you’re here, I’ll go”.  The appellant told Mr Evans he knocked on the door a couple of times.  There was no answer.  So he went around the back.  The backdoor was ajar a bit – having been left open for the dog.  The appellant walked in and could hear moaning.  He walked to the deceased’s bedroom and found her face down on her stomach on the floor.  She was naked from the waist up.  There was blood on the bed and on the floor.  He rang emergency services and was told to make her as comfortable as he could until they arrived.
161. [161]
     Mr Evans agreed (after his statement was put to him) that the appellant told him that he had been to the deceased’s house twice.  On the first occasion, he knocked and there was no answer.  Then he went home to mow the lawn.  Then he went back because he thought it was strange that he had not heard from her.  It was on his second trip to the house that he saw the tall man in a small black car.
162. [162]
     Also, the appellant spoke to him and his wife about caring for the appellant’s mother because he was afraid police were going to “pin Norma’s attack on him”.

Forensic analysis of the alleged crime scene

163. [163]
     Police took three days to forensically examine the deceased’s house. Of particular relevance they found –

     1. Plastic green leaves on a doily on a table in the front entrance of the house – apparently from a plastic pot plant also on that table.  The parties admitted that six long plastic plants leaves were removed from the deceased’s hair and skull.
     2. The laundry was the only access point on the left side of the house.
     3. There was a slit in the fly screen, near the latch, of the back screen door.
     4. At the back of the lawn in the backyard was a slope leading to a canal.  There was no fence between the deceased’s property and the canal.
     5. The window to the master bedroom was above some outdoor furniture.
     6. On the right-hand side of the house, there were two windows.  The one in the foreground was a window to the master bedroom.  The other was the window to the ensuite (see exhibit 30).
     7. On 5 July 2015, a police officer who was 170 centimetres tall, and standing on tiptoe, could not see into the master bedroom through the window because of blinds and a cupboard (see exhibits 31, 32 and 33).  The appellant was 168 centimetres tall.
     8. In the main bedroom, medication and personal items were on the floor.  There was a broken ceramic; a white plug-in telephone with transfer blood stains on it,^[8] and bone fragments found in a saturation blood stain on the carpeted floor.  A drawer had been taken out of a chest of drawers.
     9. Other pieces of broken ceramic were found in the house, three of which fitted together to make the neck of a vase.
     10. A small, wallet-like card holder, containing cards and Band-Aids, was behind the door of the main bedroom.  Some of the cards and the Band-Aids bore transfer blood stains.
     11. Trace DNA samples were obtained from (inter alia) a cigarette butt found on the front patio; door handles at the back of the house; the front door; contact points in the main bedroom (such as the light switch and the door handle of the walk-in robe and the door handle of the ensuite); and from the bloodstaining in the bedroom.
     12. There was a transfer blood stain on a green leather armchair in the loungeroom of the house.
     13. In the laundry and sink area of the house was a bucket containing what appeared to be bloodied water.  Hand towels or tea towels were in the bucket.  A (dry) woollen shawl and a sock, which tested presumptively positively for blood, were in the washing machine.  There were other items of clothing in the washing machine including a zebra patterned top which matched the pants the deceased was wearing when she was struck.  The top bore diluted blood stains, which might have been left after washing.  A tea towel on top of the washing machine bore a transfer blood stain.
     14. There was a white handbag on top of the dining table.  On the inside of its flap were two transfer blood stains.
     15. Broken ceramic fragments and a figurine were in the kitchen bin.  Unpacked food was on the kitchen bench (including meat in freezer bags that had started to smell).  There was a plate on the floor with vegetables on it and vegetables on the floor.
     16. No bloody fingerprints were found.
     17. The deceased’s purse was in her car.
164. [164]
     Sergeant Streeting undertook a bloodstain pattern analysis of the main bedroom.  He found saturation blood stains on the bed, where the blood source had seeped through the top sheet of the bed to the under layers and the mattress.  There were transfer blood stains on two locations of a chest of drawers.  There were circular blood spatter stains on the bedhead and oval and elliptical blood spatter stains on the wall above.
165. [165]
     He offered his opinion about the significance of the spatter patterns, namely that the source of the blood was someone on the bed who had been struck.  Although he could not say how many times there had been impact, there were at least two: one to create the blood source and the second to cause the blood pattern.
166. [166]
     There was a saturation blood stain on the carpet.  In Streeting’s opinion, the deceased’s head must have been in contact with the carpet while it was bleeding.  Then her head was later placed on a pillow on the bed.  The Crown’s hypothesis was that she had fallen from the bed onto the floor after being struck.
167. [167]
     Diluted blood stains were on a basin in the room (exhibit 72): one behind the soap and another behind the tap.
168. [168]
     The appellant’s fingerprints were found on the doorframe of the walk-in robe in the bedroom.

Execution of search warrant at the appellant’s house

169. [169]
     In the early hours of 5 July 2015, Wheeler and three other police officers, including Senior Constable Gibson and Detective Senior Constable Dehnert, executed a search warrant at the appellant’s house.  The appellant was present.  The search was recorded.  Almost immediately, the appellant asked if he could change out of the tracksuit he was wearing.  He was told that he could.  He went with police to his bedroom.  In his wardrobe were “six to a dozen” pairs of jeans.  The appellant selected to wear a pair of jeans with apparent dots of blood on them.  The appellant was not permitted to wear the jeans.  Instead, they were seized by police.  The jeans were screened for blood.  Bloodstaining was found below the left pocket, near the right knee, and near the hem.
170. [170]
     A damp red t-shirt was found in the washing machine.
171. [171]
     The appellant was arrested at his home on 29 July 2015.
172. [172]
     On 29 and 30 July, police searched the appellant’s house again, looking for the hoodie the appellant was wearing in the CCTV footage of him at Centrelink on 2 July 2015.
173. [173]
     On 30 July 2015, Gibson searched the appellant’s garage which was stacked with property, furniture and packing boxes.  In one of the packing boxes, in the most inaccessible area of the garage, behind a lounge which had been turned on its side, was a hoodie.  The box was sealed.  A sheet of paper was on the top of it – stuck down.  (This was similar to the state of other packing boxes in the garage.)  It said “Mum’s dolls.  26^th June 2015.  Handle with care”.  Gibson cut the box open.  The box contained dolls, “trinkety” items, and two jewellery boxes.  The hoodie was at the bottom of the box.

The forensic results

174. [174]
     The more relevant forensic results included the following:

     1. Fingernail scrapings from the appellant’s right hand yielded a mixed DNA profile of two contributors, which was 81 million more times likely to have occurred if the deceased had contributed to it than if she had not.
     2. The appellant could not be excluded as a contributor to the DNA profile obtained from the cut flyscreen – but nor could many others who were known visitors to the house.
     3. It was more than 100 billion times more likely that the deceased contributed to two DNA profiles (front pocket and right knee) obtained from the appellant’s seized jeans than if she had not.
     4. The door handle to the ensuite yielded a three-person mixed DNA profile, which was 490,000 times more likely to have occurred if the appellant contributed to it than if he had not.
     5. The hoodie seized from the appellant’s house yielded two mixed DNA samples.  It was 100 billion times more likely that the deceased had contributed to the profile on the right chest area than if she had not.  It was not assumed that the hoodie belonged to the appellant, but it was 37 times more likely that he had contributed to that profile than if he had not.  Another profile obtained from the right chest area indicated contributions from three persons.  It was 100 billion times more likely that the deceased was one of those contributors than if she was not.  It was 18 times more likely that the appellant was one of those contributors than if he was not.  A lot of factors influenced the extent to which a person’s DNA would be found on their own clothing.  Whether a DNA profile was obtained from an item depended on the location of the sample site on the item.  The evidence did not establish that the DNA on the hoodie came from the deceased’s blood, but it tested presumptively positively for blood and on visual inspection it looked like blood.

The appellant’s statements to a fellow prisoner

175. [175]
     Daniel Francis gave evidence that he and the appellant shared a cell for about three weeks at the Arthur Gorrie Correctional Centre in 2017.  The appellant told him he had been charged with murder.  Mr Francis said the appellant told him that “he got a bloodstain on his jeans.  And he told the police it was from a wound on her bottom but – when in fact it was from her head”.^[9]  He said he held her for quite a long time before he called the ambulance.  He said there was a black car out the front which probably tied him to the scene.  He said the lady tripped and fell.  He said that “he was her carer, and that he hated it and was just – just did not want to do it and was glad of the fact that she was dead”.^[10]
176. [176]
     Mr Francis was cross-examined about his criminal history which included offences of violence and dishonesty.  He said that after his conversation with the appellant, he asked his partner to contact police.  He spoke to police about what he had been told by the appellant about three months later.  He understood that he could achieve a significant reduction in his sentence were he to provide police with information about the appellant.  It was put to Mr Francis that he did not have the conversation with the appellant about which he testified.  He said he did.

Addresses

177. [177]
     Because of the length and nature of the trial, counsels’ addresses were lengthy.  They proposed competing hypotheses or theories.  The trial judge correctly instructed the jury that they were not to convict just because they did not accept defence counsel’s theory.  The jury were told that to convict the appellant they had to reject all reasonable scenarios consistent with his innocence.

Crown’s address

178. [178]
     The prosecutor rounded out his closing address as follows:

“[W]here does that leave us, ladies and gentlemen?  Norma is dead.  The violent killing was unlawful.  Whoever committed the act, in my submission to you, had at least an intention to cause Norma a serious bodily harm, a grievous bodily harm, if not to kill her.  My submission on the evidence [is that] you would be satisfied it isn’t some random event.  A burglary gone wrong.  Norma knew her killer.  Rick …Sinfield was on a mission to ingratiate himself with her and to access money from being her carer.  You might think he was there that night because he needed Norma, he needed her money, he needed her transport.

And Norma gave him up herself.  She talked about the great day she’d had with Cindy; how he was coming over to massage her feet, the phone call, the calendar, the feet on the CCTV.  Something happened between them in that bedroom.  That’s why whoever it was was on the left-hand side of the bed because Norma knew [them].  She was comfortable with them being in the house.  She was comfortable with Rick Sinfield being in the house.  Whatever went on between them, he has lashed out, caused those injuries to her, and then been in a situation where he had to deal with what had happened.

Is that why some clothing ends up in the washing machine?  Is that why there’s some blood washed off the vanity unit?  Is that why we hear all of these stories with some differing accounts?  The deletion of the phone [logs/the deceased as a contact], the hiding of the hoodie.  He had something to hide.  And there was a deliberate course of conduct around that.  Deliberate and intentional.  You might think deliberate and intentional just like those blows that killed Norma Ludlam.  When you put all those pieces together, ladies and gentlemen, not only is Rick Sinfield her killer, he’s her murderer …”

179. [179]
     The prosecution built to that closing by way of the following arguments:

     1. The case against the appellant was circumstantial but his guilt was established by the collective strength of the evidence.
     2. The appellant was under financial pressure.
     3. The deceased was his meal ticket.
     4. The house was not broken into.  There were no signs of forced entry.  The house was normally left open – and it was left open on the night of 3/4 July 2015.
     5. Based on the deceased’s position on the bed when she was struck (which could be determined by reference to the blood spatter and blood pooling in the room); and the absence of evidence from the neighbours sleeping closest to the deceased’s bedroom (Ms Groves’ father and Ms Rayner) of any scream, the killer was someone known to the deceased.  (The Crown acknowledged that the other option was that she was asleep when she was struck.)
     6. Also, the killer was positioned on the left-hand side of the bed when the blows were struck – effectively trapped in a corner.  Why do that if you are a random burglar who has crept into the room?  Someone the deceased was comfortable with killed her.
     7. The dog was not heard to bark and the evidence was that she did not bark once she got to know a visitor.  (The jury were invited to discount the evidence of Ms Clarke.)
     8. If this had been a burglary – why were the deceased’s handbag, jewellery, and purse still in the house.  There was nothing sinister about the slit in the deceased’s screen door.  The appellant caused it during the door’s repair.  The only part of the house which could be said to have been disturbed was one side of the deceased’s bedroom.  The disturbance might have been the result of the paramedics moving the coffee table, on which she kept her medications, out of the way to get to her.  (Although I note the paramedics found it in disarray on their arrival.)  Or after being struck, in an altered state of consciousness, the deceased might have caused the disarray as she fell from the bed to the floor.  Also, there was a big difference between stealing money and alcohol and bludgeoning a lady in her bed.
     9. The state of the crime scene – no bloodied weapon found; the deceased’s pyjama top and shawl being in the washing machine; no blood trails or bloody fingerprints; blood apparently wiped off the vanity – suggested that the killer was not panicking and took time to think about what they would do, which was consistent with the appellant’s behaviour in hiding a blood-stained hoodie in a box with a back-dated label on it.
     10. The appellant appeared to be calm and in control and not panicking during the triple 0 call.
     11. The transfer blood stain on the handbag was one of the oddities of the trial, although it could have been deposited if the appellant attempted to find her identification at the request of the paramedics.
     12. The appellant set out to distance himself from the deceased by putting the blood-stained hoodie in a box and back dating the label on the box.
     13. He emphasised that he asked the deceased to squeeze his hand (while on the 000 call) – the prosecutor implied that he was playing the part of Good Samaritan.
     14. The appellant removed the deceased from his contacts and deleted his call logs.
     15. The appellant had lived with the deceased.  He knew the house was left open.  His asking Ms Groves for a key on 4 July 2015 was an artifice.  He asked Ms Groves to go to the deceased’s house so that she might find the deceased.  Why did he go over to the house when Mr Hazelden arrived? Was he concerned for the deceased, or for himself?  He could have entered the house at about that time, but he did not.  Mr Hazelden was at the deceased’s house at midday – the appellant was there then too, but the triple 0 call was not made until 1.51 pm (and there was CCTV footage of feet going past at 1.48 pm).
     16. Why did the appellant tell the paramedics that he knew almost nothing about the deceased – when he had known her for two years and had lived with her?
     17. There was a change in the pattern of phone calls from the appellant to the deceased.  There were none on 4 July 2015 because he knew she was incapable of taking calls.  Despite saying that he was worried about the deceased, the appellant did not try to call her on the fourth.
     18. The appellant, at 168 centimetres tall, could not have seen through the deceased’s bedroom window.  He made up the story about peering in through the window to cover up for what he had done.
     19. He did not go home when police told him he could on 4 July 2015.
     20. He changed his clothes from the third to the fourth of July 2015.
     21. He was keen to clean up the deceased’s house (until Cindy Groves told him not to and locked up the house (apart from the laundry door)).  He was still at the deceased’s house when Babb returned to collect his ambulance.
     22. He hid the hoodie and he attempted to hide the jeans, with blood spots on them, “in plain sight”.
     23. As motive, the prosecutor suggested that the appellant wished to or needed to become the deceased’s carer.  To do so required the consent of the deceased (a matter established during Ms Groves’ evidence).  But the deceased told the Kingsleys, less than 24 hours before she was struck, that she did not wish the deceased to become her carer.  The prosecutor suggested that the appellant was a man under pressure and lashed out in frustration and anger.  The prosecutor reminded the jury that they did not need to determine why the deceased was killed.
180. [180]
     The prosecutor made other arguments about the significance of the movements shown on the Gatts’ CCTV footage.  He also compared the deceased’s various and inconsistent statements about how he came to find the deceased; and how well he knew her.  He asked the jury to compare what the appellant said about checking on the deceased at her house at 9 am, 11 am, 1 pm and 2 pm with the CCTV footage.

Defence counsel’s address

181. [181]
     The appellant’s arguments on this appeal are consistent with the principal arguments made by defence counsel to the jury.  In addition to those arguments, which I will consider shortly, defence counsel at trial submitted that –

     1. The frailty of human memory meant that witnesses who gave evidence of statements made by the appellant which the Crown relied on as lies might not be reliable.
     2. Wheeler might have been mistaken in his evidence that the appellant told him he had seen the deceased on the floor through her bedroom window – in which case it was not available as a lie.  No other police officer was with him when the appellant was said to have made that statement and it was not recorded.  He had already told the triple 0 operator that he had entered the house and found the deceased.
     3. The paramedics’ focus was on the deceased – they might not have reliably recalled what the appellant said to them about not knowing the deceased or having only been her carer for a day.
     4. Francis was not a credible witness.
     5. The fact that the appellant had the deceased’s DNA underneath the fingernails of his right hand was consistent with his interactions with her prior to the arrival of the paramedics.
     6. His t-shirt was in the washing machine but his jeans – which were filthy – were not.  This was inconsistent with the appellant being cunning.  Nor was he so cunning as to throw his hoodie away.  Nor had he turned on the washing machine at the deceased’s house which contained her pyjama top.  And, as for the top, how could it be that the appellant was able to remove it without getting blood on it from the crime scene?  The deceased’s blood was on other items in the house, possibly because of her health condition.
     7. The date on the box containing the hoodie (26 June) may well have been the date the appellant began to pack up the box – having been told about the rent increase on 21 June.
     8. Cindy Groves might have the time of her conversation with the appellant about the deceased’s house keys wrong.  The appellant might have found the deceased immediately after his conversation with Ms Groves, when she told him the house was open.
     9. The DNA on the appellant’s clothing might be explicable as having been transferred there.  Or it might have been deposited as he assisted her with her prolapsed bowel.
     10. The Crown could not say that the deceased was struck at the latest in the very early hours of the morning of the fourth.  She could have been struck at about 2 am, when Kaylene Clarke heard voices and a scream.
     11. The state of the bedroom was consistent with someone having gone through it looking for something, like Oxycontin.  The paramedics said nothing about removing a drawer from a chest of drawers.  In fact, their evidence was that the room was a mess upon their arrival.  The blood stains on the handbag and card wallet were also consistent with someone looking for something.  Also, it may be inferred that the appellant knew that the deceased’s purse was in her car, but it was untouched.
     12. Mrs Kingsley might not be reliable in her evidence that the appellant told her that he had put a hole in the deceased’s screen door.  She did not say that in her statement to police.
     13. The movements of legs captured by the Gatts’ CCTV were of limited use.
     14. The blood spatter was inexplicable other than on the basis that the person who struck the blows was on the left side of the bed.
182. [182]
     Defence counsel proposed the following hypothesis consistent with innocence:

“… so ask yourself whether this inference is one you consider rationally to be open.  Someone who doesn’t know that the screen door into the formal lounge is always left open has approached Mrs Ludlam’s house.  Someone’s looking for drugs.  They come in and they find a dog, a dog that either barked at everyone or was a really friendly dog, depending on whose evidence you accept, but we know that the dog is a Labrador, and what’s there on the dining room table (sic – floor?)?  A plate of food.  What do Labrador’s love more than anything else in the world.  Plate of food.

… has the person who’s come in and put that plate of food that they found down on the floor to keep that dog out of their way for the moment.

… Mrs Ludlam’s sitting at that table, having a snack, having a late night snack because she can’t sleep, and she spills something on herself, and so she puts the top in the washing machine, ready for whenever she does her next load of washing, and she’s going to the bedroom to get another one.

But, unfortunately, at that point in time, this intruder, looking for her medications, has entered the house, and there is a confrontation before she’s been able to get a new top to put back on and this person yells words to the effect of “Where the fuck is it? Where is it? Where is it? Where’s what? Where are the drugs?”  They want to know where that stuff is.  Now, Mrs Ludlam’s friends get out (sic) and so this person picks up the nearest object that they can see that might be able to be used.  Remember, we’ve got little plastic green leaves found in Mrs Ludlam’s hair.  This has to have been some sort of ornament sitting around inside her [house] and this person has picked it up and she, for all we know, she’s backing away.  She’s walked into her room.  However it is, she end up in that bedroom and she’s pushed onto that bed, causing that bruise [on her arm] and she’s assaulted.

And after that happens – after the source of all this blood has been established through those blows.  The person who has her blood on them goes looking.  And they see that handbag and they go through that handbag.  They go through the pill packets scattering them to the floor leaving traces of blood on the packets of Paracetamol.  Leaving traces of blood on the phone as it’s knocked off in the desperate search to find this stuff that they believe is there and maybe they find it and they take it.

But they’ve not left any fingerprints or anything including these cards because this is someone who had come to break into a house.  They have gloves on.  This isn’t some spur of the moment attack inspired by sudden rage at being denied the opportunity to be Mrs Ludlam’s carer and striking out in anger.  This is something that occurs because this person invading her home has been disturbed by her and they have attacked her and then they have gone looking for what it was that they came for and they have left … Mrs Ludlam’s blood in places where you would expect them to be looking, like the handbag, like the card wallet, like all over those boxes of medications and the phone and those things that were … all in that area.  And they’ve left it in a mess.

And then they’re out the back door and they’re off.  It’s open down the back into that canal … In what direction do they head?  The shortest direction out of there which goes first through the yard of number 3 and then through the yard of number 5.  And who’s living at number 5?  Two dogs.  That’s who.  Importantly two dogs that were outside in the backyard … These dogs were outside in the backyard and at about 4 am the dogs went off.

… These dogs, they didn’t settle quickly.  They didn’t calm down easily.  They had to bring them inside.  The lady stayed with them in the lounge room for the rest of the night.  That is two doors up at 4 am after Ms Clarke across the road at 2 am hears a demand for something followed by a piercing scream and two hours later after whoever has broken in there has searched, found what they wanted and gotten out, the dogs two doors up go off.

Does it sound rational?  In my submission to you, it does.  That is a rational inference open from actual evidence at the scene and the recollections of two of the neighbours from the night in question not from a reliance on post-offence conduct by Mr Sinfield.”

183. [183]
     Defence counsel concluded his address by inviting the jurors to listen to the triple 0 call, in which, he submitted, the appellant sounded like a man who was genuinely upset by what was going on but was trying to do his best.

Summing up

184. [184]
     It will be appreciated that the Crown relied heavily upon the inferences it said were to be drawn from the appellant’s conduct (including his statements) after the deceased was struck as establishing his guilt, and the arguments made on this appeal focused on that conduct.
185. [185]
     The trial judge’s directions on circumstantial evidence commence at ARB Volume 1 at 131.  The appellant made no complaint about the trial judge’s summing up.
186. [186]
     In his Honour’s instructions to the jury, the trial judge divided the appellant’s post offence behaviour into “lies” and “other post offence conduct”.  Then, his Honour explained that some lies went to credit (which his Honour called “credit lies”) and others could be treated as reflecting a consciousness of guilt (which his Honour called “forensic lies”).
187. [187]
     His Honour identified three forensic lies, namely: (1) when the appellant said to police that he saw the deceased on the floor of her bedroom through the back window: he was not tall enough to see in and the view was blocked by blinds; (2) when the appellant told the paramedics that he did not know the deceased and had only been her carer for a day: he had known her for a long time; lived with her for a period of time; been in regular contact with her in the month before her death; and knew she was in ill-health; and (3) when the appellant told Gai Evans that after Mr Hazelden left the deceased’s house, he went into the house and found the deceased: Mr Hazelden was at the house between midday and 1 pm and the triple 0 call was not made until 1.51 pm.
188. [188]
     His Honour identified seven instances of post-offence conduct said by the Crown to reflect consciousness of guilt, which he broke into two categories.
189. [189]
     The first category included the following: (1) The appellant hiding his hoodie in the box in the garage; (2) The appellant deleting his phone log and the deceased’s contact details from his phone; (3) The appellant asking to put his blood-stained jeans on during the police search; (4) The appellant asking Ms Groves for a key to the deceased’s house when he knew the house was open; and (5) The appellant delaying in calling triple 0.  This evidence was available to the jury as proof of either murder or manslaughter.
190. [190]
     The second category included: (6) that the appellant left the deceased in the house after he injured her, showing a callous disregard for her; and (7) that the appellant changed the pattern of his calls to the deceased after the evening of 3 July 2015.  Conduct (6) was available to the jury as evidence of intention only.  Conduct (7) was available to the jury as evidence that the appellant killed the deceased, but not as evidence of his intention.^[11]

Appellant’s arguments

191. [191]
     The appellant argued that the circumstantial evidence was not so cogent or compelling as to convincingly establish to a jury that the facts could not be accounted for upon a rational hypothesis other than murder, referring to R v Onufrejczk [1955] 1 QB 388 at 394.  The appellant submitted that the Crown case was not overwhelming and that the alternative hypothesis consistent with innocence was that the deceased was killed “during a drug-seeking home invasion gone wrong” – relying on trial counsel’s address.
192. [192]
     He also submitted that the three forensic lies and the seven acts of post-incident conduct relied upon by the Crown had a rational explanation consistent with innocence.  The rational explanations posited by the appellant were set out in a detailed appendix to his written outline. Briefly, as to the forensic lies, the appellant submitted as follows:

1. Lying by stating to Wheeler that he could see the deceased through her high bedroom window when he was not tall enough to see in – was consistent with:

1. embellishment of his statements to Wheeler that he had a look;
2. panic in the face of police involvement;
3. shock.

Further –

4. it was a pointless lie, because he had already expressed concern for the deceased to others; and
5. he said nothing to the paramedics about looking through the window.

2. Lying by stating to the paramedic Pickering that he did not know the deceased; had just started working for her; had taken her shopping the day before; did not know anything about her medication, allergies or history; did not know where her wallet was – was consistent with:

1. Panic, shock or confusion;

Further –

2. It was a pointless lie because –

1. He told the 000 operator about the deceased’s heart condition;
2. He told Cameron about the deceased’s health conditions and her need for medication;
3. He told Wheeler that he was the deceased’s carer;
4. Others knew he had known the deceased for a long time.

3. Telling Mrs Evans that he entered the deceased’s house after Hazelden left but not calling triple 0 until 1.51 pm; which was relied upon by the Crown as evidence of delay in making the call because he knew there was a problem – was consistent with innocence because the delay could be accounted for because the appellant did not know there was a problem.  It was only Francis who said that the appellant said he held the deceased for some time before calling the ambulance.  CCTV showed “feet” going past the Gatts’ house at 1.48 pm – which would suggest there was no delay between the appellant finding the deceased and calling the ambulance.  Further, the evidence about the timing of Hazelden’s leaving was imprecise and the appellant did not tell Mrs or Mr Evans how long he waited after Hazelden left to enter the house.

193. [193]
     As to the other post-offence conduct alleged –

1. Hiding the blood-stained hoodie in the box in his garage was consistent with:

1. Panic/fear of being wrongly accused.  The hoodie was found on 30 July 2015, after the appellant’s arrest on 29 July 2015.  By the time of his arrest on 29 July 2015, he was aware of the interest of police in him and told the Evans that he feared being framed.

Further,

2. Why not dispose of the clothing?
3. Why did the appellant have the presence of mind to dispose of the murder weapon but not the hoodie with blood on it?
4. The date on the box is irrelevant – the appellant knew his rent was increasing and he told Mr Evans he was considering moving.

2. Deleting his phone log and the deceased’s contact detail (the phone was seized after 5 pm on 4 July 2015) – was consistent with:

1. Panic that he was a suspect – given that people knew about his relationship with the deceased and his desire to be her carer.

3. Selecting blood stained jeans to change into during the search of his house (these being the oldest and dirtiest of the jeans in his wardrobe) – was consistent with:

1. Not wanting to wear new jeans because he might be detained at the watch house;
2. Random selection;
3. if he did wish to hide the jeans in plain sight – panic.

4. Seeking keys from Ms Groves (the Crown conceding that there was an absence of evidence about whether the appellant knew that the rear door was unlocked) – was consistent with:

1. The appellant only learning that the rear door was unlocked when Ms Groves told him so.

5. Delay in calling triple 0 – as above for the third forensic lie.
6. (On the element of intention only) Leaving the deceased without aid, after injuring her – was consistent with:

1. Panic; fear of prosecution; or a belief that she was already dead.

7. The change in the pattern of telephone calls – was consistent with:

1. The appellant mowing his lawn, or the deceased’s lawn, on the morning of 4 July 2015;
2. There not in fact being a change in the pattern of calls, when a wider date range of calls was considered.

194. [194]
     Additionally, the appellant submitted that the Crown’s explanation for the alleged killing, namely that “something” must have happened which caused the appellant to “lash out” at the deceased, was “devoid of a rational basis as an “explanation”, purely speculative and a distraction for the jury”.  Indeed, the appellant submitted, contrary to the Crown’s explanation, the appellant’s desire to be the deceased’s carer served to protect her from him.
195. [195]
     The appellant argued that the evidence of Ms Rayner and Mr Francis lacked credit.
196. [196]
     As to the blood stains on the appellant’s clothes, the appellant argued that they may have been deposited when he assisted in re-inserting her prolapsed bowel, which was likely to have involved bleeding, or otherwise picked up while he was in her house.  Also, there was no evidence as to their age.  Further, there was in fact very little blood on his clothes; nor was there a pattern to the blood stains on his clothes.
197. [197]
     The Crown’s suggestion that the killer was known to the deceased – based on the absence of evidence of her dog’s activity – was contradicted by Ms Clarke’s evidence.  Also, anyone could have befriended the dog.  There was no evidence that the dog was aggressive per se.  Further, the CCTV evidence from the Gatts’ house was inconclusive.

Consideration

198. [198]
     In determining the inference to draw, and the strength of the inference to draw, from a circumstantial Crown case such as the present case, a jury must consider the circumstances as a whole – not in a piecemeal way.  The appellant’s arguments about his lies and post offence conduct, and the “innocent” inference to be drawn from them, had to be viewed in the context of the evidence as a whole.
199. [199]
     There was no real challenge to the evidence of the appellant’s lies and post-offence conduct, at trial or on appeal.
200. [200]
     The appellant’s lie about seeing the deceased on the floor through her bedroom window was only consistent with the appellant attempting to paint a false, innocent picture of how he came to be aware of the seriously injured deceased.
201. [201]
     Further, that lie has to be viewed in the context of the evidence of his statements about the number of attempts he said he made to raise the deceased that morning, contrasted with: (a) the evidence that he made no attempt to reach her by telephone; and (b) the evidence which persuasively established that he would have been aware that the house was always left open.  Indeed, he told Mr Evans that he entered the deceased’s house on 4 July 2015 through the back door which was left open for the dog.
202. [202]
     To use the word used by the appellant about this evidence, the appellant did “embellish” his statements to Wheeler about how he came to find the deceased, but that embellishment was in furtherance of his false narrative.  From the appellant’s perspective, it was not a pointless lie – it served (so he thought) to create some distance between him and the deceased.  It was not reasonably explicable by reference to panic or shock.  Nor was anything to be made of the fact that it was not repeated to the paramedics.
203. [203]
     Conveying to the paramedics that he knew very little about the deceased was only consistent with his desire to distance himself from her.  It was not reasonably explicable by reference to his panic, shock, or confusion.  While it might not have been a smart lie – because he told the triple 0 operator that he knew about, for example, the deceased’s health; or because he did not keep it up; or because others knew how close they were – that did not make it pointless.  It was explicable as part of the appellant’s efforts to paint himself to authority figures as not closely connected to the deceased.
204. [204]
     Delaying his entry to the deceased’s house after being there with Mr Hazelden, who also could not raise the deceased, had to be viewed in the context of –

     1. the appellant making no telephone call to the deceased on 4 July 2015; and
     2. the inference to be drawn that the appellant was aware that the house was left open, if not his explicit statement to Mr Evans revealing his knowledge that the back door was left ajar for the dog; and
     3. the evidence that the house was in fact open and the appellant’s own statements that he entered it through the back door.
205. [205]
     In the context of all of the evidence, the appellant not entering the deceased’s house sooner on 4 July 2015 is explicable only as reasonably consistent with his knowledge of what he would find if he did enter the house because he struck her.
206. [206]
     In the context of all of the evidence, the appellant not telephoning the deceased on 4 July 2015 was only reasonably consistent with his knowledge that there was no point calling her.
207. [207]
     While it is true that disposing of the hoodie would have been more effective than hiding it – the fact of hiding it revealed the appellant’s awareness that it contained, or may have contained, evidence of his involvement in the deceased’s demise.  His fear of being “framed” does not explain why he chose to hide his hoodie.  Hiding the hoodie was only reasonably consistent with his knowledge of what was, or was likely to be, on it.
208. [208]
     It may be accepted that his fear of being framed might explain the appellant’s deleting the deceased from his phone contacts and his deleting his call logs.  But that conduct had to be viewed in the light of all of his other conduct including his more-telling conduct in not calling the deceased at all on 4 July 2015 – which was inconsistent with his stated concern for her and only explicable by reference to his knowledge that she would not answer her phone.
209. [209]
     There may be possible explanations consistent with innocence for the appellant selecting to wear jeans which bore blood dots.  The blood might have been deposited when the appellant was helping the deceased with her prolapsed bowel.  His decision not to hide (or wash) his jeans appears inconsistent with his hiding his hoodie and washing his red t-shirt.  However, viewed in the context of all of the other evidence, it is remarkable that the appellant selected from the many jeans in his wardrobe those which he appeared to be wearing on 3 July 2015, which bore traces of the deceased.  His selection of the jeans was explicable as his attempt at “hiding” them because he knew, or feared, that police analysis of them would link him to the deceased’s demise.
210. [210]
     The evidence about the appellant seeking a key to the deceased’s house from Ms Groves must be considered in the light of all of the evidence, including evidence that –

     1. The deceased was in the habit of leaving a door open for her dog or cat;
     2. Those who visited the deceased regularly, including the appellant, were aware of this habit;
     3. The appellant had lived with the deceased;
     4. The appellant did not attempt to telephone the deceased on 4 July 2015;
     5. The deceased’s house was in fact open on 4 July 2015 (there was no sign of forced entry to it) and it is reasonable to assume that if the appellant were genuinely concerned about her, he would have tried every entry point and found the dog/cat door open;
     6. The appellant said he entered the house, to find the deceased, through the open back door.
211. [211]
     Viewing the evidence as a whole, there is no hypothesis consistent with innocence for the appellant’s reluctance on 4 July 2015 – before approaching Ms Groves – attempt to raise the deceased or enter her house.  His reluctance is only consistent with his knowledge that she was severely injured.  Nor is there a hypothesis consistent with innocence for his not entering the deceased house after Ms Groves told him it was open, bearing in mind that her time estimate (around 11 am) was not challenged.  In the context of all of the evidence, the appellant seeking a key from Ms Groves was conduct the jury would view as designed to distance himself from the attack upon the deceased by suggesting that he had no means of entry to the house.
212. [212]
     It may be accepted that some of the evidence in the case suggested another’s involvement – such as the evidence of Kaylene Clarke (taken at its highest, despite it being inconsistent with the evidence of the deceased’s other neighbours) about the argument, the voices, and the deceased’s dog barking; the evidence of other break-ins; and there being no Oxycontin found in the deceased’s house.  But the suggestion did not reach beyond the level of conjecture.  Kaylene Clarke’s evidence was inconsistent with the evidence of all other relevant witnesses.  Further, a noisy street disturbance is inconsistent with a stealth-like burglary.  The dogs heard on 4 July 2015 could just as easily have been barking at the appellant as at other persons.  Or their barking could be entirely unrelated to the incident in the deceased’s bedroom.
213. [213]
     While it was not in the appellant’s interests to kill the deceased if he wished to be her carer, it was not suggested that the killing was pre-meditated.
214. [214]
     The appellant’s arguments on appeal suffered from the weakness that they were premised on a piecemeal analysis of the evidence in the case.  Viewed as a whole, the evidence supported only one reasonable inference, namely, that it was the appellant who killed the deceased.
215. [215]
     To conclude: in my view, the jury’s verdict was a reasonable one, supported by the evidence.  There was no significant possibility that an innocent person had been convicted.  I would dismiss the appeal.