Background
Stanley Early, formerly known as Stanley Sutton, was convicted by a jury of murdering Raymond Keam in Alison Park, Randwick, in the early hours of 13 January 1987. Keam had suffered multiple injuries, and the cause of death was a traumatic subarachnoid haemorrhage. The Crown alleged that Early, acting personally or as part of a joint criminal enterprise, participated in a group assault on Keam with an intention to cause grievous bodily harm.
The Crown relied on circumstantial evidence, evidence of Early’s alleged tendency to assault men he believed were homosexual in Alison Park, and admissions reportedly made to Early’s brother and to a fellow prisoner called Tom Brown. Early was found guilty on 7 June 2023 and later sentenced to 22 years’ imprisonment, with a non-parole period of 15 years and six months.
Early appealed out of time, challenging hearsay and tendency evidence, evidence that he travelled to Queensland on the day of the murder, trial counsel’s handling of material affecting Brown’s credibility and reliability, the prosecutor’s submissions concerning joint criminal enterprise, and the reasonableness of the verdict.
The Court’s Holding
The Court extended time, granted leave to appeal, but unanimously dismissed the appeal. It held that an unavailable witness’s statement containing second-hand hearsay was admissible because trial counsel had not objected, although it would have been inadmissible under s 82 of the Evidence Act 1995 (NSW) had an objection been made. The evidence was equivocal, the trial judge had warned the jury about the reliability of the hearsay account, and it could not realistically have affected the jury’s reasoning. The judge also made clear that it could not be used as tendency evidence.
The Court found no significant risk that the challenged tendency evidence or evidence of Early’s Queensland travel was misused, particularly in light of the trial judge’s directions and the evidence’s limited significance. Counsel’s decisions about cross-examining Brown and deploying material bearing on his credibility were legitimate forensic choices, while the jury was repeatedly directed to scrutinize Brown’s possible motives and reliability.
The prosecutor did not shift the Crown case from joint criminal enterprise to extended joint criminal enterprise, and the trial judge correctly directed the jury on the applicable basis of liability. After independently reviewing the trial record, the Court was not left with a reasonable doubt: the admissions, circumstantial evidence, and evidence concerning the severity and number of Keam’s injuries permitted the jury to find Early guilty beyond reasonable doubt.
Key Takeaways
- Second-hand hearsay admitted without objection was admissible at trial, even though an objection would have required its exclusion under s 82.
- Clear jury directions can be decisive when an appeal alleges that evidence may have been used for an impermissible purpose.
- Strategic decisions by trial counsel will not establish a miscarriage of justice merely because different forensic choices were available.
- An unreasonable-verdict appeal requires the appellate court to assess the whole record while recognizing the jury’s advantage in evaluating witnesses.
Why It Matters
The decision illustrates the distinction between evidence that is admitted because no objection was made and evidence that would have been excluded if admissibility had been contested. An appellate court must still determine whether the evidence could realistically have affected the verdict before finding a miscarriage of justice.
It also underscores the importance of jury directions and contemporaneous forensic choices in criminal appeals. Potentially prejudicial evidence, credibility disputes, and counsel’s tactical decisions are assessed within the trial as a whole rather than in isolation.